VITSOL NATIONAL MOOT COURT COMPETITION ON

INTERNATIONAL LAW 2020

TEAM: VNMCI506 - A

CASE CONCERNING THE ILLEGAL IMMIGRANTS

OF HATWANA

IN THE
INTERNATIONAL COURT OF JUSTICE
LA COUR INTERNATIONALE DE JUSTICE

THE PEACE PALACE, THE HAGUE

NETHERLANDS

THE STATE OF SURJANA

(APPLICANT)

V.

THE STATE OF HATWANA

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

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TABLE OF CONTENTS

LIST OF ABBREVIATION . . . . . 4
INDEX OF AUTHORITIES . . . . . 5
STATEMENT OF JURISDICTION . . . . . 11
STATEMENT OF FACTS . . . . . 12
STATEMENT OF ISSUES . . . . . 14
SUMMARY OF ARGUMENTS . . . . . 15
ARGUMENTENTS ADVANCED . . . . . 16
I. Whether the amendment brought to the illegal immigration act of Havana is in
violation of international law and thus unsustainable………..... 16
a) Deeming an Individual Illegal Immigrant violative of International Human Rights
Norm.
b) Nationality issues are no longer within the purview of Internal affairs.
c) The State has flawed by using a discriminating technique.
d) The State being a party to CRC, has violated the rights of Children.
e) The State has violated the International Customary Principle.
f) Being a signatory, the State has violated the object and purpose of the 1951
Refugee Convention.
g) The State has violated the General Principles of Law recognised by the
Civilized Nations.
h) Nationality being an International Customary rule, has been deprived
violation of the same.
II. Senians who have left surjana are the responsibility of Hatwana and Hatwana
cannot expel them?........................................................................ 20
a) Senians has legal bond with Hatwana
b) Senians have the right to nationality under Human Rights instruments
c) Hatwana is bound by treaty obligations
d) Hatwana has responsibility to avoid statelessness of children
e) Hatwana is bound by Refugee Convention though it has not ratified it
f) Hatwana has responsibility towards senians and cannot expel them

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g) Principle of Burden sharing

III. Surjana is not liable to accept the senians who are being
deported………………………………………………………….. 24
a) Surjana is not liable to accept the Senians
b) There is no obligation to accept the senians
c) Surjana has not violated any Int”l obligations
i) Senians were not loyal towards Surjana
ii) Deprivation of Nationality is in accordance with the Int”l law
iii) Surjana’s Jus Sanguinis mode of granting Citizenship
iv) Non discimination on gender is not a Customary Int”l law
v) Surjana has not violated treaty obligations
IV. The Principle of Non refoulement has attained Jus cogens status and thus
Hatwana is impeded to refoule the Senians………………………. 27
a) Test on Non refoulement
i) Acceptance by the Int”l community
ii) No derogation is permitted
b) Non refoulement is a general customary law and binding on all states

PRAYER . . . . . 30

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LIST OF ABBREVIATIONS
➔ &: And
➔ ¶: Paragraph
➔ Art.: Article
➔ CEDAW.: Convention on the Elimination of All Forms of Discrimination Against
Women
➔ Cl.: Clause
➔ CRC.: Convention on the Rights of the Child
➔ Doc.: Document
➔ E.T.S.:European Treaty Series
➔ EC: European Council
➔ Ed.: Edition
➔ Eds.: Editors
➔ G.A. Res.: General Assembly Resolution
➔ G.A.: General Assembly
➔ Hon’ble: Honourable
➔ IACHR.: Inter-American Commission on Human Rights

➔ IACrtHR.: Inter-American Court of Human Rights

➔ ICESCR.: International Covenant on Economic, Social and Cultural Rights

➔ ICCPR.: International Covenant on Civil and Political Rights

➔ ID.: Identification Card
➔ I.L.R.: International Legal Reporter
➔ ICJ: International Court of Justice
➔ ILC: International Law Commission
➔ Int‟l: International
➔ J.: Journal
➔ J.: Judge
➔ LNTS.: League of Nations Treaty Series
➔ p.: Page
➔ P.C.I.J.: The Permanent Court of International Justice

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➔ para: Paragraph
➔ pp.: Pages
➔ Rep.: Report
➔ Res.: Resolution
➔ RIAA.: Reports of International Arbitral Awards
➔ S.C Res.: Security Council Resolution
➔ Supp.: Supplement
➔ U.K.: United Kingdom
➔ U.N. Doc.: United Nations Document
➔ UDHR.:Universal Declaration of Human Rights
➔ U.N.T.S.: United Nations Treaty Series
➔ U.S.: United States
➔ UN: United Nations
➔ VCLT: Vienna Convention on the Law of Treaties
➔ Vol.: Volume
INDEX OF AUTHORITIES
1. TREATIES AND CONVENTIONS
➢ Charter of the United Nations, 24 October 1945, 1 UNTS XVI
➢ International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171

➢ International Covenant on Economic, Social and Cultural Rights, 16 December 1966,

U.N.T.S, vol. 993, p. 3

➢ Convention on the Elimination of All Forms of Discrimination Against Women, 18 Dec.

1979, U.N.T.S, vol. 1249, p. 13
➢ Convention Relating to the Status of Stateless Persons, 28 September 1954, U.N.T.S. vol.
360, p. 117
➢ American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November
1969
➢ Convention on the Reduction of Statelessness, 30 August 1961, U.N.T.S, vol. 989, p. 175
➢ Convention Relating to the Status of Refugees, 28 July 1951, U.N.T.S. vol. 189, p. 137

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➢ Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April

1930, L.N.T.S, vol. 179, p. 89, No. 4137
➢ Convention on the Elimination of All Forms of Racial Discrimination, G.A. Res.
2106(XX), U.N.Doc. A/6181 (Dec. 21, 1965)

➢ Convention on the Rights of the Child, 20 November 1989, U.N.T.S, vol. 1577, p. 3

➢ European Convention on Nationality, 6 November 1997, ETS 166

➢ IACHR, American Declaration of the Rights and Duties of Man, 2 May 1948

➢ Convention on Rights and Duties of States, Dec. 26, 1933, 165 L.N.T.S. 19

➢ EC,European Convention for the Protection of Human Rights and Fundamental

Freedoms, as amended by Protocols Nos.11 and 14,4 November 1950, ETS 5

➢ Optional Protocol to the International Covenant on Civil and Political Rights, 19

December 1966, U.N.T.S, vol. 999, p. 171

➢ Protocol Relating to the Status of Refugees, 31 January 1967, U.N.T.S, vol. 606, p. 267

➢ Statute of the International Court of Justice, June 26, 1945, 33 U.N.T.S. 993

➢ Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331

2. Permanent Court of International Justice

➢ AdvisoryOpinionNo.4,Nationality Decrees Issued in Tunis and Morocco, 4, PCIJ, 7 Feb.
1923
➢ Factory at Chorzów, Germany v Poland, Jurisdiction, Judgment, PCIJ Series A No 9,
ICGJ 247 (PCIJ 1927), 26th July 1927.
➢ Acquisition of Polish Nationality, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7, at 16
(Sept. 15)

3. International court of justice

➢ Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J. (April.6)
➢ Corfu Channel Case (United Kingdom v. Albania); Merits 1949 I.C.J. 4 (Apr. 9)
➢ Case Concerning Military and Paramilitary Activities In and Against Nicaragua
(Nicaragua v. United States of America); Merits, 1986 ICJ, (27 June )

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➢ Legality of Use of Force (Yugoslavia v. United States of America), Doc. CR.99/24.17

(May 12, 1999)
➢ Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain); Second
Phase, (ICJ), 5 February 1970
➢ Asylum Case (Colombia v. Peru), International Court of Justice (ICJ), 20 November 1950
4. Other Human Rights Courts:
➢ Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in
Belgium, European Commission of Human Rights v Belgium, Merits, App No 1474/62,
App No 1677/62, App No 1691/62, App No 1769/63, App No 1994/63, App No 2126/64,
(1979-80) 1 EHRR 252, IHRL 6 (ECHR 1968), 23rd July 1968
➢ Advisory Opinion on Proposed Amendments to the Naturalization Provision of the
Constitution of Costa Rica, OC-4/84, (IACrtHR)
➢ Spanish zone of Morocco claims 2 RIAA. A/CN.4/169(1923)
➢ Expelled Dominicans and Haitians v. Dominican Republic 2014 IACrtHR 282 [Aug 28]

➢ Yean and Bosico Children v. The Dominican Republic 2005, IACrtHR [Sep 8]

➢ Castillo-Petruzzi et al v. Peru, Judgment of May 1999, IACHR [ser.C] No. 52 1999

➢ Kuric and others v. Slovenia,Application no. 26828/06, European Court of Human Rights,
26 June 2012
5. Municipal courts:
➢ Oppenheimer v Cattermole [1976] AC 249
➢ Stoeck v. Public Trustee, (1921) 2 Chancery 67
➢ United States v. Wong Kim Ark, 169 U.S. 649 . 1897.
➢ Louis Deraedt v. Union of India (1991) 3 SCC 554 : AIR 1991 SC 1886
➢ Stateless Person from Gaza Vs. Secretary of State for the Home Department,England,
Immigration Appeal Tribunal, 1978 (Nov.7)
➢ Central Bank of India v. Ram Narain AIR 1995 Crl LJ 152
6. TEXT BOOKS
➢ JENNINGS And WATTS,OPPENHEIM'S INTERNATIONAL LAW Vol.1 PEACE
(9ed.) 1992

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➢ J.G.STARKE;I A SHEARER, STARKE'S INTERNATIONAL LAW (11 th edn,London,

Boston: Butterworths, 1994)
➢ MALCOM N. SHAW, INTERNATIONAL LAW (8ed. Cambridge University Press 2017)
➢ INTERNATIONAL LAW, HANDBOOK COLLECTION OF INSTRUMENTS,BOOK
ONE ,UNITED NATIONS, 2017
➢ Dr.S.P.GUPTA,INTERNATIONAL LAW AND HUMAN RIGHTS (1ed.Allahabad Law
Agency)2009.

➢ Dr.H.O.AGARWAL; INTERNATIONAL LAW AND HUMAN RIGHTS; (20 ed.Central

Law Publications) 2014

➢ Dr.S.K.KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS (17ed &21ed. Central

Law Agency) 2009 & 2017

7. ARTICLES IN BOOKS,JOURNALS OR ONLINE DATABASES

➢ Nationality in public international law and european law Kay Hailbronner
➢ G Fitzmaurice, The General Principles of International Law, Considered from the
Standpoint of the Rule of Law, 92(2) RdC 1,(1957)
➢ Guy Goodwin Gill, The Language of Protection, 1 Int'l J. Refugee L. 6, 13 (1989).
➢ Global Commission on International Migration (GCIM), Crisis in the Countries of Origin
and Illegal Immigration Into Europe Via Italy, October 2005, Global Migration
Perspectives, No. 53
➢ Matthew J.Gibney & Randell Hansen,Deportation and the liberal state: the forcible return
of asylum seekers and unlawful migrants in Canada, Germany and the United Kingdom,
Working Paper :77 (New issues in Refugee Research) U.N.H.C.R
➢ Clemens Hufmann, Duty to Receive Nationals? Vol.24 Issue 2 Fordham Law Review, art
5 (1955)
➢ Henrard, K. The Shifting Parameters of Nationality. Neth Int Law Rev 65, 269–297
(2018). https://doi.org/10.1007/s40802-018-0117-6
➢ Discrimination in Nationality Laws: A case study of Pakistan,Journal of Law, Policy and
Globalization Vol.66, 2017
➢ François Crépeau,The Criminalisation of Undocumented Migration Threatens Human
Rights,Dialogue between judges 2017

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➢ Alice Farmer,Non- refoulement and Jus-cogens: Limiting Anti-Terror Measures that

Threaten Refugee Protection, Georgetown Immigrantion Law Journal
➢ Claire Inder; The Origins of ‘Burden Sharing’ in the Contemporary Refugee Protection
Regime;Volume 29, Issue 4; International Journal of Refugee Law;Pages 523–554; Dec
2017
➢ 2.Matteo de Bellis, Amnesty International's researcher on Italy

8. UNITED NATIONS RESOLUTIONS

➢ UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217
A (III)
➢ UN General Assembly, Convention of the Nationality of Married Women, 29 January
1957, A/RES/1040
➢ UN General Assembly, Convention on the Rights of Persons with Disabilities U.N.Doc
A/RES/61/106, (January 24, 2007)
➢ G.A.Res.36/148, U.N.Doc. A/RES/36/148 (Dec. 16, 1981)
➢ GA Res. 47/133 (1965)
➢ G.A Res. 45/151, U.N. Doc. A/RES/45/151 (Dec. 18. 1990)
➢ G.A. Res. 2131 (XX),U.N. Doc A/C. 1 /SR. 1423 (Dec.21. 1965)
➢ G.A. Res. 2625 (XXV) UN Doc A/RES/2625(XXV) (Oct.24 1970)
➢ S.C. Res. 688, U.N. Doc. S/RES/688 (Apr. 5, 1991).
➢ U.N.Doc. A/RES/45/158
➢ U.N.Doc A/RES/50/152
➢ UN General Assembly, Declaration on Territorial Asylum, UN Doc.A/RES/2312(XXII)
(1967)
➢ G.A. Res. 2625 (XXV) UN Doc A/RES/2625(XXV) (Oct.24 1970)
➢ U.N.H.C.R.,Article 31 of the 1951 Convention relating to the Status of
Refugees:Non-penalization, Detention and Protection (Guy S. Goodwin-Gill)
➢ U.N.H.C.R., Handbook on Procedure and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees.
➢ UN High Commissioner for Refugees (UNHCR), Opinion : The 1951 Convention
relating to the Status of Refugees and the Obligations of States under Articles 25, 27 and
28, with particular reference to refugees without identity or travel documents, May 2000

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➢ United Nations, Draft articles on the expulsion of aliens, with commentaries, 2014
➢ United Nations, Draft Articles on Diplomatic Protection with commentaries , 2006
➢ UNHCR Standing Committee 1997 (Jan 6) EC/47/SC/CRP.7
➢ UN Commission on Human Rights, Resolution 2005/45 on Human Rights and Arbitrary
Deprivation of Nationality, 19 April 2005, E/CN.4/RES/2005/45,
➢ Int’l Law Comm’n, Summary Record of 2793rd Meeting, Diplomatic Protection, [2004] I
Y.B. Int’l L. Comm’n 11,, U.N.Doc. A/CN.4/SR.2793
➢ UN DOCUMENT A/CN.4/554
➢ International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10),
chp.IV.E.1
➢ Draft articles on the expulsion of aliens adopted by the International Law Commission at
its sixty-sixth session, in 2014, U.N.Doc A/69/10

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STATEMENT OF JURISDICTION

The State of Surjana and the State of Hatwana have appeared before the
International Court of Justice in accordance with Article 40(1) of the Statute of this
Court and by virtue of a Special Agreement (Compromis) for resolution of all the
differences between them ‘Concerning the illegal immigrants from the State of
Hatwana”. This court has jurisdiction over the dispute pursuant to Article 36(1) of the
Statute, as both parties shall accept the Court’s decision as final and binding and
execute it in good faith.

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STATEMENT OF FACTS
Background:

Surjana and Hatwana are countries' connected through a thin strip of land. As per
historic evidence, Surjana was invaded by Senians and ruled the ethnic viharian community.
In the 18th century, both countries' came under the rule of the Arnor empire. Since Hatwana
was infrastructurally developed during this era, many senians moved to Hatwana under their
official capacities. Hatwana gained independence in 1964 and adopted a constitutional
democracy, and their constitutional provisions exceptionally recognised senians as citizens
along with other minorities. Surjana got independence in 1975 and Surjana Republic Party
(SRP) came to power.

Senian community in Surjana:

Following decade, large scale of Senians were disenfranchised, massacred and their
properties were also taken back by the state. They were also forced to flee from Central part
to South eastern part of the country and many fled to the north eastern part, to Hatwana.
Owing to the protests by the Senians, demanding democratic and equality rights, in 1990 the
SRP and the Senians entered into an agreement to provide for a regional council with some
level of autonomy. But it was not performed. Thus outraged the senian people to protest. The
government of Surjana amended it’s citizenship Act to ensure peace and security in 1997 and
gave:(1)The right of citizenship only the ethnic population of Surjana,(2)Added caveat to
the right of citizenship at birth to only recognize children born to a viharian father. This
further led to constant clashes between the state and senians which continued for about 10
years. An International NGO Observers of Human Rights (OHR), released a report in 2007
stating the crimes committed by Surjana government through its security force against the
senian people. Hatwana had no National Asylum or Refugee law or policy. Increased influx
of senians further upsetted local Jaiyani people of Hatwana. In October 2008, an agreement
was signed between Hatwana and Surjana Governments with the following terms: a) Surjana
state will amend it’s citizenship laws to grant Senain people citizenship.b)The state of
Hatwana will give legal recognition to the Senains who are in Hatwana as on the date of
the agreement and make all it’s efforts to naturalize them and eventually grant them

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citizenship.c)The timeline for these processes would be three years after which another
meeting would take place to assess the progress and further steps.

Illegal immigrants of Hatwana:

In 2010, the newly elected Government of Hatwana stated it was not bound by the
agreement .In retaliation, the State of Surjana also abandoned all its efforts towards granting
citizenship to the Senians,cut all diplomatic ties and shut their embassy in Hatwana.In 2013,
the Government of Hatwana, stated a Nationality Determination process in the country to
give citizens ID and subsequently amended its illegal immigration Act to include “ any
person without the National ID to deemed to be illegal immigrants”.All those who were
deemed to be illegal immigrants were arrested. The Government stated that it would now
start deporting all those detainees.The President of Surjana came out with a press statement
saying that “We will not accept anyone.They are not our citizens whether they left in 1975 or
yesterday.”Concerned with the aggravating situation,Both Hatwana and Surjana agreed to
submit the matters of disputes to the International Court of Justice under a special agreement.

Hatwana and Surjana parties to the UN Charter, ICJ Statute,VCLT 1980,CRC 1989
and CEDAW 1979. Both States neither signed nor ratified 1954 Convention of 1961
Convention. Hatwana signed but not ratified 1951 UN Refugee Convention.

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STATEMENT OF ISSUES
It is respectfully requested the Court to adjudge and declare:

I.Whether the amendment brought to the Illegal Immigration Act of

Hatwana is valid and in conformity with its obligations under
international law.

II. Whether Senians who have left Surjana are the responsibility of
Hatwana and can Hatwana expel them.

III. Whether Surjana is liable to accept the Senians who are being
deported.

IV. Whether the Principle of Non-refoulement has attained the

Jus-cogens status and thus Hatwana is impeded to refoule the Senians.

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SUMMARY OF ARGUMENT
I.The state of Hatwana by deeming an Individual, Illegal Immigrant by adopting a
Nationality Determination Process which was without due process of law had violated the
International Human Rights Norm. Nationality issues are not within the domestic affairs, thus
the principle of non-intervention doesn't apply.The state has adopted a discriminating
technique for identifying the irregular migrants. Being a party to CRC, the state has violated
the child' right. By waiving the bilateral agreement the state has acted in contrary to the
principle of "pacta sunt servanda" under the Int”l Customary Law. Being a signatory to the
1951 Refugee Convention, the state had acted against the object and purpose of the
convention. The State had also deprived the nationality in an arbitrary manner thus violating
the Int”l Customary Law.
II. Hatwana is responsible for the Senians who have left Surjana. Everyone has the
right to nationality and no one shall be arbitrarily deprived of his nationality nor denied the
right to change his nationality. Hatwana cannot be certain that a child born in its territory can
obtain the nationality of another state, it must grant nationality in order to avoid statelessness
at birth though Hatwana follows jus sanguinis.Hatwana's discretion to expel is not absolute
thus by customary international law it must not abuse its rights by acting arbitrarily in taking
its decision to expel an alien it must act reasonably in the manner in which it affects
expulsion.
III. Surjana is the sovereign state, and has the right to decide who are it's Nationals
and also has the power to deprive the Nationality of Citizens.Surjana deprived the Senian’s
Nationality and abandoned the treaty obligation according to the International law. Thus
Surjana did not violate any International obligations and it was not liable to accept Senians
who are deported from Hatwana and there is no International obligation towards Surjana to
accept Senians.
IV. The true nature of the principle of non - refoulement is identified by testing it under
two basic requirements viz., acceptance by Int”l community and the non-derogatory nature of
the norm. The principle under the higher customary Int”l has been practiced by the states with
the sense of legal obligation and it is not mandatory that it had to be followed with rigorous
uniformity.Since the humanitarian principle of non-refoulement has attained the status of Jus
Cogens, the state is impeded to refoule the senians.

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ARGUMENTS ADVANCED
I. a) Deeming an Individual Illegal Immigrant violative of International Human
Rights Norm:
It is a fundamental principle of Int‟l law that Int‟l law prevails over domestic law.1
By definition, an immigrant is illegal if s/he contravenes the law by entering a country
without adequate visa , and if s/he does not hold the status of “political refugee”2.The
amendment is used inorder to strip off the Nationality and to criminalize, incarcerate, then to
expel and deport them; this administrative immigration regulations, proceedings and policies
“mimic” the criminal justice system3.It snatches away the right of nationality arbitrarily4 thus
violating the obligations assumed under the International Human Rights Norm.
b) Nationality issues are no longer within the purview of Internal affairs:
It is the International duty of all the countries to recognise the inherent dignity, and of the
equal and inalienable rights of all members5.Nationality is an inherent right and has an
important bearing on the individual's legal capacity6,it is “the political and legal bond that
links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling
him to diplomatic protection from that State”7. Contemporary developments indicate that the
manners in which states regulate matters bearing on nationality cannot be deemed within
their sole jurisdiction, those powers of the state are also circumscribed by their obligations to
ensure the full protection of human rights8.
c) The State has flawed by using a discriminating technique:

1
UN High Commissioner for Refugees (UNHCR), Opinion : The 1951 Convention relating to the Status of
Refugees and the Obligations of States under Articles 25, 27 and 28, with particular reference to refugees
without identity or travel documents, May 2000
2
Global Commission on International Migration (GCIM), Crisis in the Countries of Origin and Illegal
Immigration Into Europe Via Italy, October 2005, Global Migration Perspectives, No. 53
3
François Crépeau,The Criminalisation of Undocumented Migration Threatens Human Rights,Dialogue between
judges 2017
4
International Covenant on Civil and Political Rights 1966 art 24 ,Universal declaration of Human rights 1948
art 15 (2) , American convention on human rights 1969 art 20.3.
5
Universal Declaration of Human Rights,1948 Preamble
6
Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica,
OC-4/84, (IACrtHR)
7
Castillo-Petruzzi et al v. Peru, Judgment of May 1999, IACHR [ser.C] No. 52 1999;Convention on the
Nationality of Married Women1957 art 1,2,3; Convention on the Elimination of All Forms of Racial
Discrimination 1965 art 5; Convention on the Elimination of All Forms of Discrimination against Women 1979
art 9
8
Castillo-Petruzzi et al v. Peru, Judgment of May 1999, IACHR [ser.C] No. 52 1999

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The spirit of the amendment reveals a tendency of retrogression from the traditional
humanitarianism of Hatwana, since NDP9 is defective on many grounds. "Nationality laws
that discriminate with regard to the transmission or acquisition of nationality on the basis of
prohibited grounds, including in relation to the child and/or his or her parents' race, ethnicity,
religion, gender, disability and migration status, should be repealed"10.Laws may be said to be
discriminatory if the result of their application is discrimination.States must respect and
ensure that migrants in their territory or under their jurisdiction or effective control receive
equal and non-discriminatory treatment, regardless of their legal status and the documentation
they possess11.A state cannot make its national an alien by deprivation of nationality for the
sole purpose of expulsion12. The amended law has undermined the commitment of Hatwana'
obligations under the ICCPR and CERD.
d) The State being a party to CRC, has violated the rights of Children:
The most basic rules of International law with regard to child' rights are set forth in art
2 and 7 of CRC, which has been violated.,Article 7 of CRC refers to the 1961 Convention, if
the nationality of a State is not acquired automatically by reason of birth on its territory, a
child born on the territory of that State of parents destitute of nationality, may obtain the
nationality of the said State13 and requires the state to have safeguards in nationality laws to
ensure that renunciation, loss and deprivation of nationality do not lead to statelessness.Thus
making it of central importance to full enjoyment of every child’s right to acquire a
nationality under the CRC.The Committee on the Rights of the Child has determined that the
administrative detention of migrant children can “never ever” be in their “best interests” and
that it is therefore always a violation of their rights14,which is expressly in violation of Article
31(1) of the Refugee Convention,195115 .

9
Nationality Determination Process
10
The Committee on the Rights of the Child
11
Ms.Michelle Bacehelet Jeria ,the United Nations High Commissioner of Human Rights (OHCHR)
12
European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 art 8 ; Kuric and
others v. Slovenia; Draft articles on the expulsion of aliens adopted by the International Law Commission at its
sixty-sixth session, in 2014, U.N.Doc A/69/10 art 9.
13
Convention on Certain Questions Relating to the Conflict of Nationality Law 1930 art 15,American
Convention on Human Rights 1969 art 20 cl 1&2;European Convention on Nationality 1997, art 4 (b)
14
Ibid
15
The Contracting States shall not impose penalties, on account of their illegal entry or pres-ence, on refugees
who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter
or are present in their territory without authorization, provided they present themselves without delay to the
authorities and show good cause for their illegal entry or presence.

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e) The State has violated the International Customary Principle:

The bilateral agreement between the countries has been waived off by the state for
amending the internal law thus violating the principles of free consent, good faith and pacta
sunt servanda16 which are universally recognized17.It is a fundamental rule of international
law that every treaty in force is binding upon the Contracting States and must be performed in
good faith18.Change of government has no effect on the agreement between states.This is a
general principle of international law recognized by international jurisprudence19The
Supreme Court of Justice of Chile affirmed that:“it is a universally recognized principle that
civilized Nations can not invoke their internal law to elude international obligations and
engagements under such treaties, which, if this happened, would certainly weaken the rule of
law.”20Where two States agree to incorporate a particular rule in a treaty, their agreement
suffices to make that rule a legal one, binding upon them21the Parties are bound by these rules
as a matter of treaty law and of customary international law.
f) Being a signatory, the State has violated the object of the 1951 Refugee
Convention:
The First Asylum principle prohibits the State from penalizing the refugees for their illegal
entry or presence in the country22.The preamble of the 1954 Convention23 reaffirms that
stateless24 refugees are covered by the 1951 convention relating to the status of refugees and
thus those that signed the 1951 refugee convention will be binded by the same. When a State
accedes to the 1951 Convention25, it demonstrates its commitment towards treating refugees
in accordance with internationally recognized legal and humanitarian standards. The

16
Vienna Convention on the Law of Treaties 1969, Article 26
17
UN General Assembly, Vienna Convention on Succession of States in Respect of State Property, Archives and
Debts, 8 April 1983 ,Preamble
18
UN High Commissioner for Refugees (UNHCR), Opinion : The 1951 Convention relating to the Status of
Refugees and the Obligations of States under Articles 25, 27 and 28, with particular reference to refugees
without identity or travel documents, May 2000 ¶20
19
Application of the Convention of 1902 Governing the Guardianship of Infants(Netherlands/Sweden);
Judgement of 16 April 1955,Notteböhm (2nd Phase) (Lichtenstein/Guatemala). Arbitration settlement S.A
Bunch, Montijo (Colombia/United States of America), 26 July 1875.
20
Bárbara Uribe and Edwin vanYurick Case Judgement of 26 October 1995
21
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America); Merits, 1986 ICJ, (27 June ) ¶ 184
22
U.N.H.C.R.(Guy S. Goodwin-Gill),Article 31 of the 1951 Convention relating to the Status of
Refugees:Non-penalization, Detention and Protection
23
Convention Relating to the Status of Stateless Persons 1954
24
Convention Relating to the Status of Stateless Persons 1954 art 1(1)
25
U.N.H.C.R., Handbook on Procedure and Criteria for Determining Refugee Status under the 1951 Convention
and the 1967 Protocol Relating to the Status of Refugees.

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undocumented migrants don't pose a threat to public safety and there is no evidence of them
misbehaving or otherwise. With regard to art 31(2), The Commission is of the view that the
“claw-back” clauses must not be interpreted against the principles of the Charter. Recourse to
these should not be used as a means of giving credence to violations of the express provisions
of the Charter and the rules of natural justice must apply.26Further the amendment abuses the
principle of family unity, which, despite not being codified under the Refugee Convention,
forms the basis for refugee protection.
g) The State has violated the General principle of International Law:
The ECN and the Draft Protocol on the Avoidance of Statelessness in relation to State
Succession incorporate the provisions found in the 1961 Convention and many of the
principles contained in the ILC draft articles thus establishes the rule of International law.
The General Assembly “calls upon States to adopt nationality legislation with a view to
reducing statelessness, consistent with fundamental principles of international law, in
particular by preventing arbitrary deprivation of nationality, and by eliminating provisions
which permit the renunciation of a nationality without the prior possession or acquisition of
another nationality, while at the same time recognizing the right of the State to establish laws
governing the acquisition, renunciation or loss of nationality.”27
h) Nationality being an Int”l Customary rule, has been deprived:
The State of Hatwana may contend that the court should refrain from applying the rules
of customary international law because they have been "subsumed" and "supervened" by
those of international treaty law.28But there are no grounds for holding that when customary
international law consists of rules identical to those of treaty law, the latter "supervenes" the
former, so that the customary international law has no further existence of its own.29
Furthermore, in the present case, apart from the treaty commitments binding the Parties to
the rules in question, there are various instances of their having expressed recognition of the
validity thereof as customary international law in other ways. It is therefore in the light of this

26
Amnesty International / Zambia 212/98 ¶50
27
UN General Assembly, Office of the United Nations High Commissioner for Refugees : resolution / adopted
by the General Assembly, 9 February 1996,U.N.Doc A/RES/50/152
28
Case Concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America); Merits, 1986 ICJ, (27 June ) Supra ¶177
29
Ibid ¶177

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30
"subjective element" . States in a position to react to it, must have behaved so that their
conduct is "evidence of a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it. The need for such a belief. i.e., the existence of a subjective element,
is implicit in the very notion of the opinio juris sive necessitatis."31It is a principle of
customary international law that the state ought to behave as they have customarily behaved.
II. a) Senians has legal bond with Hatwana:

Senians who have left surjana and settled in Hatwana from colonial period has
acquired the citizenship in Hatwana.The Court has indicated that nationality, “as a legal and
political bond that links a person to a particular State, allows the individual to acquire and to
exercise the rights and responsibilities inherent in membership in a political community32.
The ICJ33 defined Nationality as a legal bond between a state and an individual where there
exists attachment, connection of existence, sentiments, interests, and reciprocal rights and
duties. Since Senians were in Hatwana from colonial period they have their attachment,
interest and sentiments in Hatwana only. Hatwana, exceptionally recognized Senians as their
citizens ,but on issuing the IDs, they were not provided with the national ID. Hatwana is
estopped to do the same on the basis of pacta sunt servanda(art 26 of VCLT).

b)Senians have right to nationality under Human Rights instruments:

International bill of Human Rights and other regional Human Rights instruments and
other predominant documents guarantees the right to nationality.34As such,nationality is a
prerequisite for the exercise certain rights,”and it is also a non derogable right35. In this

30
North Sea Continental Shelf cases (I.C.J. Reports 1969, p. 44);Case Concerning Military and Paramilitary
Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, 1986 ICJ, (27 June ) ¶185
31
North Sea Continental Shelf cases (I. C.J. Reports 1969, p. 44) ¶77;Case Concerning Military and Paramilitary
Activities In and Against Nicaragua (Nicaragua v. United States of America); Merits, 1986 ICJ, (27 June ) ¶207
32
[Expelled Dominicans and Haitians v. Dominican Republic] 2014 IACrtHR ¶253 [Aug 28]
33
Nottebohm case [Liechtenstein v. Guatemala][1955] ICJ Nov.18.
34
1951 Convention and 1967 Optional Protocol, 1954 Convention ,1961 Convention, 1997 ECN, African
Charter on the Rights and Welfare of the Child(art.6), ACHR(art.20), American Declaration of the Rights and
Duties of Man(art.19), Arab Charter on Human Rights(art.24), CEDAW(art.9), CERD(art.5(d)(iii)), Convention
on the Rights of Persons with Disabilities(art.18), CRC(arts.7and8), Council of Europe Convention on the
Avoidance of Statelessness in Relation to State Succession, ICCPR(art.24(3)), MaputoProtocol(art.6(g)and(h),
UDHR(art.15)
35
Case of the Yean and Bosico Girls v. Dominican Republic, para. 136. On this issue, the Court has recognized
the rights that cannot be suspended as a non-derogable nucleus of rights; in this respect, cf. Case of the Pueblo
Bello Massacre v. Colombia. Merits, reparations and costs. Judgment of January 31, 2006. Series C No. 140,
para. 119, and Case of González et al. (“Cotton Field”), para. 244. The Court recalls that the right to nationality
cannot be suspended according to Article 27 of the Convention. In this regard, cf. Habeas Corpus in Emergency

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regard,it is pertinent to mention that nationality is a fundamental right of all humans.36The

jurists proclaimed that the right to nationality must be considered as an inherent human right37
The internal law shall contain rules which make it possible for foreigners lawfully and
habitually resident in the territory of a state party to be naturalised.38 Surjana made Senians to
move to the southern part of the country but Senians left the State at their own
discretion.Thus establishing their intention to stay in Hatwana, thereby assigning the
responsibility on Hatwana.

c)Hatwana is bound by treaty obligations:

The PCIJ has asserted it's opinion that nationality falls within a domain of legal competence
reserved to internal law, although it may be limited by treaty obligations.39Yet apart from
treaty limits, efforts to codify the international regulation of nationality generally include no
more than vague assertions that “the power of a state to confer its nationality is not unlimited.
40
The 1930 Hague Convention characteristically stipulated that “[i]t is for each State to
determine under its own law who are its nationals,41" but that a state’s ascription of nationality
under internal law “shall be recognized by other States in so far as it is consistent with
international conventions, international custom, and the principles of law generally
recognized with regard to nationality42.”.But After the form of new government Hatwana
stated it was not bound by the agreement and would not naturalise any Senians.

d)Hatwana has responsibility to avoid statelessness of children:

Situations (arts. 27(2), 25(1) and 7(6) American Convention on Human Rights). Advisory Opinion OC-8/87 of
January 30, 1987. Series A No. 8, para. 23
36
American Declaration of the Rights and Duties of Man, Article XIX; UDHRArticle 15; ICCPR Article 24(3)
(rights of the child); CRC Article 7; CERD, Article 5 (d) (iii); International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families, Article 29; 1961Convention Article 1(1); ECN
Article 4; the African Charter on the Rights and Welfare of the Child, Article 6.
37
Kay Halinronner Nationality in public international law and European law an advisory opinion of The Inter
American of Human Rights
38
European Convention on Nationality Art:6 para3.
39
Nationality Decrees Issued in Tunis and Morocco(FrenchZone),Advisory
Opinion,1923P.C.I.J.(ser.B)No.4,at24(Feb.7);see also Acquisition of Polish Nationality,Advisory
Opinion,1923P.C.I.J.(ser.B)No.7,at16(Sept.15).
40
The Law of Nationality art 2,23 AM..J..INT”L L.SPEC SUPP. 11,13 (1929)
41
Convention on Certain Questions Relating to the Conflict of Nationality Lawsart.1,Apr.12,1930,179L.N.T.S.89
42
Ibid

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Hatwana is required to grant nationality to children born in their territory who would
otherwise be stateless43.Art:8(1) goes further and forbids states to deprive people of their
nationality if such deprivation would render them stateless.44The state practice regulates when
granting nationality, states must avoid rendering persons stateless, and they must not
discriminate in the enjoyment of the right to nationality..45The states have obligation not to
adopt practices or laws concerning the granting of nationality if their application fosters an
increase in the number of stateless persons.46 But Hatwana amended its illegal immigrants Act
rendering many children stateless. Hatwana cannot be certain that a child born to a senian in
its territory can obtain the nationality of another state; it must grant nationality in order to
avoid statelessness at birth.47Even Though Hatwana didn't sign in this 1954 Convention and
1961 Convention, the principles of statelessness became part of Customary Int”l law. State
parties recognize that every child has the inherent right to life.48 The child shall be registered
immediately after birth and shall have the right from birth to a name, the right to acquire a
nationality.49 States Parties undertake to respect the right of the child to preserve his or her
identity, including nationality, name and family relations as recognized by law without
unlawful interference.50 Since Hatwana has signed and ratified CRC it has the responsibility
towards children born in Hatwana. International norms forbids a state, which otherwise grants
nationality to everyone born in the territory, from depriving based on the migratory status of
his or her parents.51
e)Hatwana is bound by Refugee Convention though it has not ratified it:
Hatwana shall as far as possible facilitate the assimilation and naturalization of
refugees.52Because Hatwana has signed the Refugee Convention. Hatwana can't say that it
hasn't ratified the 1951 Refugee Convention because a signatory state can't act contrary to the
object and purpose of the Convention though it was not ratified.The General Assembly
resolution highlights many important international legal norms, including the right to free

43
ACHR Art:20(2)and 1961 convention Art:1(1)
44
Convention on the Reduction of Statelessness 1961 art 8 cl 1
45
Expelled Dominicans and Haitians V. Dominican Republic (2014)IACrtHR ¶243(Aug28)
46
Yean and Bosico Children V. The Dominican Republic(2005)IACrtHR¶142(Sep8)
47
Expelled Dominicans and Haitians V. Dominican Republic(2014)IACrtHR¶261(Aug28)
48
Convention of the Rights of the Child 1989 Art:6
49
Convention of the Rights of the Child 1989 Art:7
50
Convention of the Rights of the Child 1989 Art:8
51
Yean and Bosico Children V. The Dominican Republic(2005)IACrtHR¶156(Sep8)
52
1951Convention Relating to the Status of Refugees Art:34

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birth registration—a crucial measure to reduce the risk of statelessness.53The resolution also
calls upon states to protect the right to due process in all nationality-related matters, and to
provide effective remedies where the right to nationality has been violated.54
f)Hatwana has responsibility towards senians and cannot expel them:
The state's discretion to expel is not absolute and thus by customary international law
it must not abuse its rights by acting arbitrarily in taking its decision to expel an alien it must
act reasonably in the manner in which it affects expulsion.55An alien lawfully in the territory
of a State party may be expelled only pursuant to a decision reached in accordance with law.56
Collective or mass expulsion of Senians by Hatwana is unequivocally prohibited by the
general principles of law recognised by the civilised community.57 With regard to collective
expulsion, the principle deriving from international law prohibits it.58A State shall not expel
an alien on a ground that is contrary to its obligations under international law.59European
Nations may be able to remove people from their territory but they cannot remove the
obligation under International law.60Expulsion of foreigners especially long-term residents,
that would result in disappropriate interference with the right to family life61. Hatwana can't
expel the Senians because they have the responsibility towards them.
g)Principle of Burden sharing:
Recital 4 of the preamble of the 1951 Convention expresses this principle as follows62
Considering that the grant of asylum may place unduly heavy burdens on certain countries,
and that a satisfactory solution of a problem of which the United Nations has recognized the

53
KATRINE THOMASEN & SEBASTIAN KOHN; The UN adopts a new resolution on the right to
nationality;(july6)2012;https://www.statelessness.eu/blog/un-adopts-new-resolution-right-nationality
54
Ibid
55
Commentaries on Draft articles on the expulsion of aliens Art:3
56
Draft articles on the expulsion of aliens Art:4
57
European Convention on Human Rights Article 4 of Protocol no.4; ACHR,Article22(9); African Charter on
Human and Peoples Rights Article12(5) and 2004 Arab Charter on Human Rights, Article 26(1);African Charter
on Human and Peoples’ Rights Article12(5)
58
European Convention on Human Rights(freedom of movement and of choice of residence;prohibition of exile,
Article 4 of Protocol No.4; collective expulsion of aliens and of imprisonment for a civil debt) which entered
into force on 2 May 1968
59
Draft articles on the expulsion of aliens Art:5
60
MatteodeBellis,Amnesty International researcher on Italy
61
See General Recommendation no.30 of 1October2004 ,para.28 Convention on the Eliminations of Racial
Discrimination ;OHCHRdiscussion paper Expulsion of aliens in International Human Rights Law
62
Claire Inder; The Origins of ‘Burden Sharing’ in the Contemporary Refugee Protection Regime;Volume 29,
Issue 4; International Journal of Refugee Law;Pages 523–554; Dec 2017

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international scope and nature cannot therefore be achieved without international

co-operation. Hatwana has the responsibility towards Senians who have left Surjana.
III. a)Surjana is not liable to accept the Senians :
The irregular immigrants from Hatwana include the Senians who moved to Hatwana
before 1975 by their choice and also acquired Hatwanian citizenship, thus entitling the state
to automatically deprive their nationality on the basis of departure from the state63(dual
nationality). "Nationality, as a personal status, has full juridical effect only within local
jurisdiction.It lacks extraterritoriality, and its effects are therefore suspended in every instance
when a moral and physical person moves to a foreign soil...."64. Already there is a national
threat in the state because of senains that's why they lost their citizenship in Surjana. Further
the illegal immigrants are forcefully expelled from Hatwana and it is against the
non-refoulement principle. The deported Senains are aliens to Surjana and it has no liability
to accept them and has the right to refuse the Senians to enter into its territory.
b)There is no obligation to accept the Senians
Turning to the alleged obligation to admit aliens into sovereign territory ,no universal
or sufficiently general treaty establishing or recognizing such duty can be found. Foreign
countries are not under any obligation to accept back their nationals65 The argument against
the duty to receive back nationals is based on the exclusive sovereignty of the territorial State
to decide for itself whose entry into the dominion it will permit. This is a petitio principii, as
the extent of sovereignty is the very question.The presumption of international law is in favor
of the legality of State action, particularly when taken within the State territory66In case of
doubt, the exclusiveness of State control over its territory prevails67. So, Surjana has no duty
to accept Senians because it is a sovereign state and has the power to decide whom to accept
and not to.
c)Surjana has not violated any International obligations:

63
Norwegian case, (The state v. Buhre)
64
Brown, Cardenas Doctrine, 34 Am. J. Int'l L. 300 (1940).
65
Oppenheimer, The Enforcement of the Deportation Laws of the United States,National Commission on Law
Observance and Enforcement 118, c. 2, 12(d) (1931).
66
Case Concerning Certain German Interests in Polish Upper Silesia (Merits),P.C.I.J. Ser. A, No. 7, at 30 (1926)
concerning compliance with treaties; Case of theS. "Lotus," P.C.IJ. Ser. A, No. 10/9, at IS (1927): a... a State ...
may not exercise its power in any form in the territory of another State."
67
The SS. "Wimbledon," P.C.IJ. Ser. A, No. 1, at 24 (1923); Case of the FreeZones of Upper Savoy and the
District of Gex, P.CI.J. Ser. A/B, No. 46, at 167 (1932);Access to, or Anchorage in, the Port of Danzig of Polish
War Vessels, P.C.IJ. Ser. A/B,No. 43, at 142 (1931).

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i) Senians were not loyal towards Surjana

Any question as to whether a person possesses the nationality of a particular State shall be
determined in accordance with the law of that State68. The Nationality is given to the persons
based on their loyalty towards the state69, it is supposed to reflect (guarantee) such a sufficient
connection, or a genuine link70 or sufficient ties between the individual and the state71. The
'Effective link' requirement can be satisfied through residential requirements and membership
of ethnic groups associated with the state territory72. By state practice, the state of Surjana
was conceived as an ethnic Nation and there is no genuine link between the state and the
Senians. Until the state got Independence, Senians sided with the Arnor empire and also
fought against the Independence movement led by Viharians thus expressing unpatriotic73
character of Senians.
ii) Deprivation of Nationality is in accordance with the International law
Not every differentiation of treatment will constitutes discrimination if the criteria for
such differentiation is reasonable and objective and if the aim is to achieve their purpose
which is legitimate under the covenant74. ECN allows deprivation of nationality in cases
where the strength of the link between the individual and the state is considered to become
too weak75. Being a threat to the National security and acquisition of Hatwana's citizenship by
their choice,the link between Surjana and Senians has become weak.. The senians who were
not the origins of the Surjana invaded and ruled viharians76. The sovereign state has the right
to deprive the Nationality77 as in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms of others.78

68
TheHague Convention on Nationality 1930 art 2 ( stoeck v. The public trustee)
69
Starke's Int'l Law eleventh edition 1994
70
Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, 1955 I.C.J. (April.6)
71
United Nations, Draft Articles on Diplomatic Protection with commentaries , 2006
72
Crawford (2012) highlights in this respect that when the UN Convention on the Reduction of Statelessness of
1961 obliges states to reduce statelessness, it relies on ‘various criteria of factual connection and evidence of
allegiance’, p. 517
73
The European Convention on Nationality 1997 art 7 cl e
74
Human rights committee - general comment on non discrimination
75
The European Convention on Nationality 1997 art 7(a)&(e)
76
Ethnic origin of the state Surjana (fact)
77
Convention on the Reduction of Statelessness 1961 art 8 cl 3
78
The European convention on Human rights1950 art 8

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iii) Surjana’s jus sanguinis mode of granting citizenship

The words "every child has the right to a nationality"79 contains the only mention of
nationality, so it does not create any binding obligation upon States Parties to grant their
nationality. The travaux preparatoire of the ICCPR concerning the nationality provision
noted that the provision does not necessarily require states to confer nationality on every
child born in their territory. Since Surjana had adopted Jus Sanguinis mode of nationality it
cannot confer the right on every person who has voluntarily waived it.
iv)Non-discrimination on gender is not a Customary International law
As for the Int”l acceptance of a non-discrimination principle is concerned,
discrimination on the basis of sex does not enjoy the same consensus with that of the
discrimination as to race in customary Int”l norm. In the contemporary Int"l law, the
customary standard of both the State practice on non discrimination, and the traditional
deference to State Sovereignty in nationality laws has not emerged to the extent that binds all
nations. Customary international law thus fails to provide a clear and universally recognized
prohibition of gender discrimination in nationality laws. To qualify as an international
custom, there must be a State practice and opinio juris80. For a regional or local
custom, there must be a proof of constant and uniform usage practiced by the States81.
The substance and provisions of the Conventions must be shown to exist in the actual
practice and opinio juris of the States.
State practice alone - even if sufficiently uniform - does not amount to customary
international law if absent a sense of legal obligation to carry out the practice - that is, opinio
juris sive necessitatis (or "opinio juris"). Hence ICJ has stated that the settled practice "must
be such, or be carried out in such a way, as to evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it."82In Spite of the positive
acceptance of all parties, many states who were parties to the convention discriminate

79
International Covenant on Civil and Political Rights 1976 art 24 cl 3
80
Opinion on the Legality of the Threat or Use of Nuclear Weapons,1996 I.C.J. Reports, 226,253; 110
ILR 163; Statute of the International Court of Justice, June 26,1945, art.38(1)(b), 33 U.N.T.S.993 [I.C.J.
Statute].
81
Asylum case (Colombia. v. Peru), 1950 I.C.J.266 (Nov. 20).
82
(North Sea Continental Shelf, § 72) Analysis of North continental shelf case (Federal Republic of Germany v.
Denmark; Federal Republic of Germany v. Netherlands) , I.C.J. Reports 1969, p.3, International Court of Justice
(ICJ), 20 February 1969,

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women83 thus establishing the fact there is no sense of legal obligation or opinio juris in the
states.
v)Surjana has not violated the treaty obligation
According to VCLT, Agreement84made between the state should bound to fulfil in good
faith (pacta sunt servanda)85. No party can denunciate or withdraw a treaty unless provisions
regarding the termination contained in the treaty86. Hatwana abandoned the agreement with
the Surjana and ceased to naturalize the senains, it is the material breach of a provision
essential to the accomplishment of the object or purpose of the treaty87. "A material breach of
a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for
terminating the treaty or suspending its operation in whole or in part"88So, the state Surjana
abandoned its obligation to grant citizenship according to the International law and it did not
violate any international obligation.
IV. a) Test on Non Refoulement:
To determine whether the norm prohibiting refoulement has attained the normative
value of jus cogen, two requirements must be fulfilled.They are,i)Acceptance by international
community of states as a whole.ii) Norm from which no derogation is permitted89.
i)Acceptance by international community:
The most important forum for identifying the value attributed to the norm of non
refoulement is in the conclusions adopted by the Executive Committee of the programme of
UNHCR such conclusions reflect the consensus of states, acting in an advisory capacity
where issues of protection and non refoulement are addressed internationally. The non
refoulement principle has evolved through the conclusion of the Executive Committee90 and
had acquired the status of jus cogens norm when it was determined that principle of non
refoulement is not subject to derogation91. The character of the principle must be determined

83
theDominican Republic, Egypt, Ghana, Iraq, Jamaica, Kenya, Madagascar, Nige-ria, the Philippines,
Rwanda,Senegal, Sri Lanka, Tanzania, Thailand, Yemen,and the United Kingdom.
84
McNair 'Law of Treaties', p.4
85
The Vienna Convention on Law of Treaties 1980 art 26
86
The Vienna Convention on Law of Treaties 1980 art 56
87
The Vienna Convention on Law of Treaties 1980 art 60(3)
88
The Vienna Convention on Law of Treaties 1980 art 60(1)
89
Vienna Convention, supra note 4, at art. 53. See also Allain, supra note 2, at 538 (applying these criteria to
non-refoulement).
90
Executive Committee Conclusion(General conclusion on International protection)No.25,1982and No.55 ,1989.
91
Executive Committee conclusion 79 (General conclusion on International protection) 1996.

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by looking not only to the 1951 Convention, but also to customary Int”l law, arguments of
scholars, state practice, and comparable articulations of the norm in other areas of Int”l law,
such as torture.92The principle is now a jus cogens, the norm should be seen as absolute,
unconditional, and assuming a place in the hierarchy of Int”l law above that of treaties93. In
1984, through the Cartagena Declaration, Central American states, Panama, and Mexico
together labeled the principle of non-refoulement as a “cornerstone of the international
protection of refugees” and stated that “[t]his principle is imperative in regard to refugees and
in the present state of Int”l law should be acknowledged as jus cogens.94Over the last fifty
years of state practice, the principle in relation to refugee context has provided a broad
foundation for state practice.95 Goodwin-Gill observes that virtually all states had accepted
the principle of non-refoulement as articulated in Article 33 of the 1951 Convention96.
ii)No derogation is permitted:
States can find themselves obliged to retain within their territory non-nationals
who they consider a threat to national security.97 “Any lingering doubt as to the jus cogens
nature of non-refoulement due to the increased violations of the norm should be set aside as
irrelevant to its legal standing,” citing to the ICJ Nicaragua ruling to assert that state practice
need not be in rigorous conformity with the rule for a jus cogens norm to emerge.98 As long
as there is an insistence on the non derogable nature of refoulement, it's status is secure.99 The
logic of ICJ is that violation may in fact strengthen the norm of non refoulement. The court
so explained in the Nicaragua case: " If a state acts in a way prima facie incompatible with
recognized rule, but defends its conduct by appearing to exceptions or justifications contained
within the rule itself, then whether or not the states conduct is in fact justifiable on that basis,
the significance of that attitude is to confirm rather than to weaken the rule".100
b)Non Refoulement is a general customary law and binding on all states:

92
Allain, supra note 2, at 533-38; GOODWIN-GILL & MCADAM, supra note 119, at 218
93
Allain, supra note 2, at 537. See also Gerald L. Neuman, Import, Export, and Regional Consent in the
Inter-American Court of Human Rights, 19 EUR. J. INT’L L. 101, 102 (2008).
94
Cartagena Declaration, supra note 22, at sec. III, para. 5
95
GOODWIN-GILL, supra note 1, at 123.
96
Ibid at 137.
97
Ibid at 18–19 (discussing articulations of non-refoulement with no exceptions, that bind States from
returning individuals regardless of the threat to national security).
98
Allain, supra note 2 at 540.
99
Secure unless there emerges a new norm of Jus cogens in line with VCLT Art.64
100
Ibid

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Non-refoulement’ fundamental character and broad application suggest that any

exceptions to the principle should be extremely limited. “[I]t is clear that the norm
prohibiting refoulement is part of customary Int”l law, thus binding on all States whether or
not they are party to the 1951 Convention.”101Arguing that state practice since the Convention
is persuasive evidence of the concretization of a customary rule, even in the absence of any
formal judicial pronouncement.102 “The view has been expressed...that ‘the principle of
non-refoulement of refugees is now widely recognized as a general principle of international
law’...also of the evident lack of expressed objection by any State to the normative character
of the principle of non-refoulement, it must be considered that non-refoulement must be
regarded as a principle of customary international law.”103Orakhelashvili emphasizes that the
establishment of per-emptory norms does not require judicial pronouncement; rather, jus
cogens norms are created when a consensus emerges on two levels:
First, on a categorical level focusing on the basic nature of peremptory norms and
factors that make those norms peremptory; Second, at a normative level, examining whether
a norm that categorically qualifies as part of jus cogens is so recognized under international
law.104 Jus cogens norms are considered as a central part of the international legal order, and
as such, they are beyond the law of treaties and supersede agreements between states.105
Orakhelashvili argues that a true Int”l public order cannot operate in a differentiated way;106
Indeed, Jus cogens engages the whole community and cannot be limited to regional or
bilateral norms.107 For several decades, authorities have held that non-refoulement is a
principle of customary Int”l law, and is binding on all .States regardless of specific assent,by
assertion has demonstrated the acceptance of non-refoulement by the international
community of states as a whole.108 While commentators initially deferred on the extent to

101
Allain, supra note 2, at 538
102
GOODWIN-GILL, supra note 1, at 167.
103
Lauterpacht & Bethlehem, supra note 1, at 149.
104
ORAKHELASHVILI, supra note 120, at 36. For general discussion of the identification of peremptory
norms, see id. at 36-50. Many sources can be used to identify jus cogens norms, including judicial rulings, state
practice, and the merits of the substantive content of the norm. Ibid at 42-43.
105
Ibid at 29-30
106
Ibid at 31.
107
Ibid at 38-40
108
Allian Supra note 2, at 538

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which non refoulement should be considered a principle of customary Int”l law,109 it is now
settled that the principle is of a fundamentally norm-creating character such that it can be
used to form the basis of a general rule of law.110No formal or informal objections to the
principle of non-refoulement have been noted.111Thus from the above it is concluded that the
principle of non- refoulement has attained Jus Cogen status, thus the state of Hatwana is
impeded to refoule the senians.

PRAYER
For the foregoing reasons, the State of Surjana respectfully requests this Honourable Court to
find, adjudge and declare that

a.The amendment brought to the Illegal Immigration Act of Hatwana is in violation of

International law and thus, unsustainable

b.Senians who have left Surjana are the responsibility of Hatwana, its constitution recognizes
Senians as citizens and Hatwana cannot expel them.

c.Surjana is not liable to accept the Senians since it has acted consistent with the Int'l
obligations and it's amendment to the Citizenship Act and non-performance of Treaty
Obligations are in accordance with the Int'l Law

d.The principle of non-refoulement has attained the status of Jus Cogens ,it has been accepted
by the Int'l community and non derogatory nature of the norm.

109
GOODWIN-GILL, supra note 1, at 134 (discussing arguments that non-refoulement was largely recognized
in non-socialist states, and that in the 1970s and early 1980s states had frequently made reservations to the
principle in cases of mass emergencies.
110
Ibid. (discussing the standards articulated by the International Court of Justice in the North Sea Continental
Shelf cases)
111
Ibid at 168

30 MEMORIAL FOR THE APPLICANT