Applicant Memorial 2011

TEAM CODE: E
IN THE
INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS
YEAR 2011 THE CASE CONCERNING CONFLICTING ORDERS OF THE COURTS OF BOLITA AND GARUNDI
THE REPUBLIC OF BOLITA (APPLICANT) V. THE REPUBLIC OF GARUNDI (RESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE
WRITTEN SUBMISSION FOR THE APPLICANT STATE - REPUBLIC OF BOLITA-
D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION 2011
TABLE OF CONTENTS
MEMORIAL FOR THE APPLICANT
TABLE OF CONTENTS INDEX OF AUTHORITIES..........................................................................................I STATEMENT OF JURISDICTION..............................................................................XI STATEMENT OF FACTS...........................................................................................XII QUESTIONS PRESENTED...................................................................................... XIV SUMMARY OF ARGUMENTS..................................................................................XV BODY OF ARGUMENTS 1 THE APPLICANT STATES COURTS HAVE JURISDICTION AND THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE.......................................................................................1 1.1
THE RESPONDENT STATE IS DUTY-BOUND TO COMPLY WITH HER INTERNATIONAL OBLIGATIONS UNDER THE E U TREATY...............................................................................1
1.1.1
THE E U TREATY REQUIRES RECOGNITION AND ENFORCEMENT OF ORDERS OF EACH OTHERS COURTS............................................................................................................................ 3
1.1.2 1.2 1.2.1 1.2.2
THE E U TREATY REQUIRES RESPECT AND COMITY FOR EACH OTHERS LAWS......................4 THE APPLICANT STATES LAW IS THE PROPER LAW FOR THE SURROGACY CONTRACT.....5
THE PARTIES INTENDED THAT THE APPLICANT STATES LAW BE THE PROPER LAW
...............5
THE TRANSACTION HAS ITS CLOSEST AND MOST REAL CONNECTION WITH THE APPLICANT STATES LAW.................................................................................................................... 6
1.3
THE RESPONDENT STATE CANNOT EVADE HER OBLIGATIONS UNDER INTERNATIONAL TREATY LAW......................................................................................................................7
TABLE OF CONTENTS
1.3.1
INTERNAL LAWS AND PUBLIC POLICY DO NOT INVALIDATE INTERNATIONAL TREATY OBLIGATIONS...................................................................................................................8
1.4
GENERAL PRINCIPLES OF INTERNATIONAL LAW ENDOW JURISDICTION AND APPLICABLE LAW TO THE APPLICANT STATE..........................................................................................9
THE APPLICANT STATES COURTS HAVE JURISDICTION AND THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE.........................................................................................11
2.1
PARALLEL PROCEEDINGS IN THE RESPONDENT STATE REGARDING EMILYS CUSTODY DISPUTE VIOLATE THE E U TREATY...................................................................................11
2.2
THE APPLICANT STATE BEING THE STATE OF EMILYS OF NATIONALITY, DOMICILE AND HABITUAL RESIDENCE HAS JURISDICTION IN THE MATTER OF HER CUSTODY..................12
THE RESPONDENT STATE HAS AN INTERNATIONAL OBLIGATION TO HAND OVER JANE AND JANET...............................................................................17
3.1
THE E U TREATY OBLIGATES RECOGNITION AND ENFORCEMENT OF THE ARREST WARRANT ISSUED BY THE COURTS OF THE APPLICANT STATE...........................................................17
3.2
ALTERNATIVELY, GENERAL PRINCIPLES OF INTERNATIONAL LAW REQUIRE THAT THE RESPONDENT STATE HAND OVER JANE AND JANET...........................................................19
ARGUENDO, THE RESPONDENT STATES COURTS CAN NOT ACCORD FAIR AND IMPARTIAL TRAIL................................................................................20
PRAYERS...........................................................................................................................XVII
INDEX OF AUTHORITIES
PAGE
NO.
UN DOCUMENTS AND RESOLUTIONS Convention on The Rights Of The Child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989) United Nations Charter, as amended June 26, 1945, 892 U.N.T.S. 119 International Covenant on Civil and Political Rights, GA res. 44/128, annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989) International Covenant on Economic, Social and Cultural Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967) Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948)
16, 17
9 9, 17, 20 9, 17
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JUDICIAL DECISIONS Ackerman v. Levine, (2d Cir. 1986) 788 F.2d 830, 842. American Dredging Co. v. Miller, (1994) 510 U.S. 443, 449 n. 2. Amin Shipping Corporation v. Kuwait Insurance Co, [1983] 2 ALL ER 884, [1983] 3 WLR 241 Anonymous v. Anonymous, (1964) 41 Misc. 2d 886, 246 N.Y.S.2d 835 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] I.C.J. Rep. 160 ff Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement case, [1988] I.C.J. Rep. ARY Jewelers v. Krigel, 277 Kan. 464, 481, 85 P.3d 1151 (2004) Attn. Gen. v Rowe [1862] 1 H. & C.31 B.P. Exploration Co. (Libya) v. Hunt, [1983] 2 A.C. 352 (H.L. 1981) Bailey v. South Carolina Inc. Co., (1813) 6 S.C.L. (1 Tread. Const.) 381, 415 Barcelo v. Electrolytic Zinc Co. of Australia Ltd., (1932) 48 C.L.R. 391 Bates v. Bates, (1930) 53 Nev. 77, 292 P. 298 Beagle Channel case, [1977] HMSO at 12; 52 ILR 93 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319 Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760 Bennett v. Hymers, (N.H. 1958) 147 A.2d Bonython v Commonwealth of Australia, [1951] AC 201 (Privy Council) British Controlled Oilfields v. Stagg, [1921] 1 Lloyds Rep. 613 7 14 3 3 6 3 2 14 10 10 8 6 8 10 1 8, 9 5 5
I
D. M. HARISH MEMORIALGOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION 2011
Brown v. Gadson, (Ga. Ct. App. 2007) 654 S.E.2d 179 Canada Malting Co. v. Paterson Steamships, Ltd. (1932) 285 U.S. 413, 422 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 Case Concerning The Arrest Warrant Of 11 April 2000 (D.R.C. v. Bel) [2002] I.C.J. Rep. Case Concerning the Payment of Various Serbian Loans Issued in France, (1929) PCIJ, Ser.A, no. 20 Certain German Interests in Polish Upper Silesia (Merits), (1926) PCIJ Series A, No. 7 Chartered Mercantile Bank of India v. Netherlands Co., (1883) 10 Q.B.D. 521 (C.A.) Coast Lines Ltd. v. Hudig & Veder Chartering NV, [1972] 2 QB 34, [1972] 1 ALL ER 451 Cohen v. Cohen, (Sup. Ct. 1993) 602 N.Y.S.2d 994, 998 Commonwealth v. Cass, (Mass. 1984) 467 N.E.2d 1324, 1330 Commonwealth v. Morris, (Ky. 2004) 142 S.W.3d 656 Compagnie Tunisienne de Navigation S.A. v. Compagnie dArmement Maritime S.A., [1971] A.C 572 Compania Mexicana Rediodifusora Franteriza v. Spann, (N.D. Tex. 1941) 41 F.Supp 907, 908-09, aff'd (5th Cir. 1942) 131 F.2d 609 Coulborn v. Joseph, (1943) 195 Ga. 723, 25 S.E.2d 576 DEtchegoyen v. DEtchegoyen [1888] 13 PD 132 David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991) Davis v. Davis, (Tenn. 1992) 842 S.W.2d 588, 597-98 DeYoung v. DeYoung, (1946) 27 Cal. 2d 521, 165 P.2d 457 Deva Prasad Reddy v. Kamini Reddy, AIR 1985 GUJ 187 Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 Dr. Padmini Mishra v. Dr. R. C. Mishra, AIR 1991 Ori 263 E v E [1998] 2 FLR 980 Eisenstadt v. Baird, (1972) 405 U.S. 438 Evergreen Marine Corp. v. Welgrow Int'l Inc., (S.D.N.Y. 1997) 954 F. Supp. 101, 104 Findlay v Findlay (No 2) [1995] SLT 492. Fisheries Jurisdiction (U.K. v. Ice.), [1973] I.C.J. Rep. Foundation Property Investments v. CTP, 37 Kan. App. 2d 890, Syl. P4, 159 P.3d 1042 (2007) Free Zones of Upper Savoy and the District of Gex, (1932) PCIJ Series A/B, No. 46 Friedrich v. Friedrich, (6th Cir. 1993) 983 F.2d 1396, 1401 Gabkovo-Nagymaros Project (Hungary/Slovakia), [1997] I.C.J. Rep.
7 5 1, 8
18 5
8 5 5, 7 15 11 10 5
3 14 16 6, 9 3 3 9 4 16 9 3 15 9 7
8 15 9
II
Gilbert v. Gulf Oil Co, (1947) 330 U.S. Grant v Grant, (1931) S.C. 238 Greco-Bulgarian Communities, (1930) PCIJ Series B, No. 17 Greenshields Inc. v. Johnston, (1981) 119 D.L.R. (3rd) 714 Harben v. Harben, [1957] 1 W.L.R. 261 Hilton v. Guyot, (1895) 159 U.S. 113 Hodas v. Morin, (Mass. 2004) 814 N.E.2d 320 Hope v. Hope, (1854) a DeG.M. & G. 328 Hornbuckle v. Plantation Pipe Line Co., (Ga. 1956) 93 S.E.2d 727 Hunt v. BP Exploration Co. (Libya) , (N.D. Tex. 1980) 492 F. Supp. 885 In re C.K.G., (Tenn. 2005) 173 S.W.3d 714 In Re Callaghan [1948] NZLR 846. In re Doe, (N.Y. Sur. Ct. 2005) 793 N.Y.S.2d 878 In Re Helbert Wagg & Co Ltds Claim, [1956] Ch 323, [1956] 1 ALL ER 129 (Chancery Division) In Re Jones Estate [1921] 192 Iowa 78, 182 NW 227 In RE K (Abduction: Consent : Forum Conveniens) [1995] 2 FLR 211, CA In re M.K.H., 169 P.3d at 1031-32. In Re Marriage of Adams, 133 Ill. 2d 437, 447, 551 N.E.2d 635, 141 Ill. Dec. 448 (1990) In re Marriage of Buzzanca, (Cal. Ct. App. 1998) 72 Cal. Rptr. 2d 280, 282 In Re A (Minors) [1996] 1 WLR 25 In Re P (GE) (an infant), [1965] 3 ALL ER 977 In re Paternity & Custody of Baby Boy A., (Minn. Ct. App. 2007) No. A07-452, 2007 WL 4304448 In re Rutherford's Estate, 182 Misc. 1019, 46 N.Y.S.2d 871 (Sur. Ct. 1944) In Re Salaman [1908] 1 Ch 4 In re United Railways of Havana v. Warehouses Ltd., [1960] Ch, 52, 91 (C.A.) In Re Willoughby, (1885) 30 Ch.D. 324 (C.A.) In Re Y (minors) (Adoption: Jurisdiction) [1985] Fam 136 In the Estate of Fuld (no 3) [1968] P.675, 685 In The Interest of K.M.H., (2007) 169 P.3d In the Interest of O.G.M., A Child, (Tex. Civ. App., 1st Dist., 1999) 988 S.W. 2d 473 Ingersoll Milling Machine Co. v. Granger, (7th Cir. 1987) 833 F.2d 680, 685 Iran v. USA, Case No. A/18, 5 IranUS CTR Jacobs v. Credit Lyonnais, (1884) 12 QBD 589 (Court of Appeal)
5 10, 13 8 8 10 4, 9 6, 7 10, 13 10 3 6 11 6 8
14 15 7 7 6 15 10, 13 6
3 11 7 10, 13 14 14 6 10 11 2 7
III
Jesse Lewis (U.S.) v. Gr. Br. (David J. Adams case) , (1921) 6 RIAA 85; 1 AD John and Jane D. v. Regents of the University Of California, (2003) WL 21956362 (C.A.9) Johnson v. Calvert, (Cal. 1993) 851 P.2d 776 Jopp v Wood [1865] 4 D.J. & S.616 Kane v. Central Am. Mining & Oil, Inc., (S.D.N.Y. 1964) 235 F. Supp. 559 Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. Kass v. Kass, (App. Div. 1998) 673 N.Y.S.2d 350, 696 N.E.2d 174 Kelly v. Gregory, (N.Y. 1953) 125 N.Y.S.2d 696, 698 La Socit du Gaz de Paris v. Socit Anonyme de Navigation Les Armateurs Franais , [1925] 23 Lloyd's List. Rep. 209, 213 (Sess.) Lagos v Baggianini, [1955] 22 ILR 533 Laker Airways v. Sabena, (1984) 731 F.2d 909 Lamaritata v. Lucas, (Fla. Ct. App. 2002) 823 So.2d 316 Lauritzen et al v Government of Chile, [1956] 23 ILR 70 Layne Christiansen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 141-42, 38 P.3d 757 (2002) Liechtenstein v Guatamela (Nottebohm Case), [1955] I.C.J. Rep Libyan Arab Jamahiriya v. United States of America (Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie) [1992] I.C.J. Rep. Litowitz v. Litowitz, (Wash. 2002) 146 Wn. 2d 514, 48 P.3d 261 Loizidou v. Turkey (Preliminary Objections), European Court of Human Rights, Series A, No. 310 Lloyd v. Guibert, (1865) LR 1 QB 115, 6 B & S 100 (Exchequer Chamber) Maganbhai Chhotubhai Patel v. Manniben, AIR 2002 KAR 356 Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd., (3d Cir.2006) 436 F.3d 349. Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [1995] I.C.J. Rep. May v. Roberts, (1930) 133 Ore. 643, 286 P. 546 McDonald v. McDonald, (N.Y. App. Div. 1994) 608 N.Y.S.2d 477 McM. V. C. (No. 2), [1980] 1 N.S.W.L.R. 27 Military and Paramilitary Activities Case, [1986] I.C.J. Rep. Miller-Jenkins v. Miller-Jenkins, (Vt. 2006) 912 A.2d 951, 965-68 N. V. Handel Maatschappij J. Smits v. English Expoertes (Londaon) Ltd. , [1955] 2 Lloyds Rep. 317
2 20 6 14 3 1, 2 6 10 5
17 18 6 17 7
17 8
6, 11 2
5 3 5 1
3 6 10 17 7 7
IV
Neporany v. Kir, (1st Dep't 1958) 5 App. Div. 2d 438, 173 N.Y.S.2d 146 Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA Nike Informatic Systems Ltd. v. Avac Systems, (1979) 105 D.L.R. 3 rd 455 North Sea Continental Shelf (F.R.G./Den.; F.R.G./Neth.), 1969 I.C.J. 3 (Feb. 20) Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995) Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep. Oral Pleadings of the United States, Question and Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Prelim. Obj., (Oct. 15, 1997) Owens v. Bell (1983), 6 Ohio St.3d 46, 48, 6 OBR 65, 67-68, 451 N.E.2d Peal v Peal (1930) 46 T.L.R. 645 People v. Sorensen, (1968) 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495 Peninsular and Oriental Steam Navigation Co. v. Shand, (1865) 3 Moo PCC NS 272, 6 New Rep 387 Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981) Qureshi v. Qureshi (1972) Fam.173 Ramsay v Liverpool Royal infirmary [1930] A.C. 588 Regazzoni v. K. C. Sethai Ltd., [1956] 2 Q.B. 490,514, 523 (C.A.). Reino de Espana v. American Bureau of Shipping, Inc., 528 F. Supp. 2d 455, 45960, 2008 A.M.C. 83 (S.D. N.Y. 2008) Rights of Nationals of the United States of America in Morocco (France v. USA) , [1952] I.C.J. Rep. Robert v. International Trustee for the Protection of Bondholders AG, [1937] ALL ER 164 Robert v. Sandbach Justices, ex p Smith, [1951] 1 KB 62. Royal Trustco Ltd. v. Campeau Corp. (1981) 118 D.L.R. (3 ) 207 Russian Republic v. Cibrario, 235 N. Y. 255. as quoted in Comity 12 Va. L. Rev. 353 Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995) Sayers v. International Drilling Co., [1971] 1 W.L.R. 1176, 1187 (C.A.). Showlag v. Mansour, [1995] 1 A.C. 431 (P.C. 1994) (appeal taken from Jersey) (U.K.) Smith v. Brennan, (N.J. 1960)157 A.2d 497 Somportex, Ltd. v. Philadelphia Chewing Gum Corp, (3d Cir. 1971) 453 F.2d 435, 440 Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) , [2002] I.C.J. Rep. Speranza v. Repro Lab Inc., (1st Dept. 2009) 62 A.D.3d 49, 52-55, 875 N.Y.S.2d 449 Strnad v. Strnad, (Sup. Ct. 1948) 190 Misc. 786, 78 N.Y.S.2d 390 Sun Oil Co. v. Wortman, 486 U.S. 717, 736, 100 L. Ed. 2d 743, 108 S. Ct. 2117 (1988).
rd
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5 14 14 8 1
5, 6 13 8 4 16 7 3 10 4 1 6 10 7
V
Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990) Taintor (1940) 18 Can BR Territorial Dispute (Libyan Arab Jamahiriya/Chad), [1994] I.C.J. Rep. The Abidin Daver, [1984] 1 A.C. The Bremen v. Zapata Off-Shore Co., (1972) 407 U.S. 1, 9 The Eleftheria, [1970] P 94, [1969] 2 ALL ER 4 (Admiralty Division). The Italian National Re-extradition Case, [1970] 70 ILR 374 The State (Duggan) v Tapley, [1951] 18 ILR 109 Thomson v. Thomson, 119 D.R.4th 253 (Can. 1994) Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) PCIJ, Series A/B, No. 44 Tzortzis v. Monark Line, A/B [1968] 1 W.L.R. 406, 411 (C.A.) Udny v Udny (1869) LR 1 Sc U.S. v. Stuart, 1989-1 C.B. 312, 489 U.S. 353, 368, 109 S. Ct. 1183, 89-1 U.S. Tax Cas. (CCH) P 9185, 63 A.F.T.R.2d 89-681 (1989) United States v. Ahmed Amer, 110 F.3d at 873 Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 17, 57 S. Ct. 100 (1936). Wanninger v. Wanninger, 850 F. Supp. 78. 81-82 (D. Mass 1994) Weckstrom v. Hyson, [1966] V.R. 277 Whitner v. State (S.C. 1997) 492 S.E.2d 777 Wilkinson v. Shoney's, Inc., 269 Kan. 194, 209-10, 4 P.3d 1149 (2000) Winans v Att. Gen. [1904] A.C.287 Young Loan Arbitration (Belg. v. FRG), [1980] 59 ILR 495 BOOKS, DIGESTS AND TREATISES Alexander Orakhelashvili, The United Nations Convention Against Torture. A Commentary. Commentary on the Rome Statute of the International Criminal Court (Oxford University Press: 2009) (2009) 20 EJIL 457. David McClean, ed., Morris: The Conflict of Laws, 4th ed. (London: Sweet & Maxwell, 1993) Ernst Rabel, The conflict of Laws: A Comparative Study, 2nd ed. (1958-64) vol. 1 Falconbridge, Conflict of Laws, 5th ed Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: 1986) Hersch Lauterpacht, The Development of International Law by the International Court
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(Cambridge University Press: 1996) Ian Brownlie, Principles of Public International Law 6th ed. (Oxford: Oxford University Press, 1979) Joseph Story, Commentaries on the Conflict of Laws (1834) J. H. C. Morris and P. M. North, eds., Cases and Materials on Private International Law, (London: Butterworths, 1984) James Fawcett, ed., Reform and Development of Private International Law: Essays in Honour of Sir Peter North (Oxford: Oxford University Press, 2002). Lauterpacht ed., Hersch Lauterpacht International Law Collected Papers, (Cambridge: 1970) vol. 1 Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty To Extradite Or Prosecute In International Law (1995) M. Cherif Bassiouni, Foreword to Treaty Enforcement and International Cooperation in Criminal Matters, Rodrigo Yepes- Enrquez & Lisa Tabassi eds. (2002) Malcolm N. Shaw, International Law, 6th ed. (Cambridge: 2008) Marc Henzelin, Le Principe de lUniversalit en Droit Pnal International: Droit et Obligation pour les tats de Poursuivre et Juger selon le Principe de lUniversalit, (2000) P.E. Nygh, Conflict of Laws in Australia, 6th ed., (1995) P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13 ed.
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10, 13, 14 19
19
10 19
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(LexisNexis Butterworths: New Delhi, 1999) Palsson (1986) IV Hague Recueil 316, 332 et seq Perry v. Ponder, (Tex. Civ. App. Dallas 1980) 604 S.W.2d 306 R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (1992) vol. 1 Rancis Wharton, A Treatise On The Conflict Of Laws 2d ed. (1881) Richard K. Gardiner, Treaty Interpretation (New York: Oxford University Press, 2008) Ronald F. Roxburgh, ed. Oppenhiems International Law (New Jersey: The Lawbook Exchange, Ltd., 2005) vol. 1 Schwarzenberger, A Manual of International Law, 6th ed. (Oxon: Professional Books Limited, 1976) TREATIES AND OFFICIAL DOCUMENTS African Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) American Convention on Human Rights, OAS Treaty Series No. 36; 1144 UNTS 123 (1969) 9, 20 9, 20 2 13 13 1, 17 4 1 19
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European Convention for the Protection of Human Rights, 1950 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, (20 May, 1980) Eur T.S. 105 EC, Convention of 10th June 2009 on Jurisdiction And The Recognition And Enforcement Of Judgments In Civil And Commercial Matters, [2009] O.J. L 147/5 Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3 EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in the Matrimonial Matters ( Brussels II), [1998] OJ C221/2 EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, [2003] O.J. L 338 EC, Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction And The Recognition And Enforcement Of Judgments In Civil And Commercial Matters, [2000] O.J. L 12 EEC, Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgments In Civil And Commercial Matters, [1988] 88/592/EEC Hague Conference on Private International Law, Hague Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, 5 October 1961, UNTS 1969, pp. 145 ff. International Law Commissions Draft Declaration on Rights and Duties of States, G.A.Res. 375 (IV) of 6 December 1949 Organization of American States, Inter-American Convention on the International Return of Children, 15 July 1989, OAS, Treaty Series, No. 70 The EEC Convention on the Law Applicable to Contractual Obligations Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27 (1971) ARTICLES AND JOURNALS Anastasia Grammaticaki-Alexiou, ARTs and Conflict of Laws, 60 La. L. Rev. 1113. Anne-Marie Slaughter, Breard: Court to Court (1998) 92 A.J.I.L. 708 A. Alexander, Foreign Judgments Under the Comity of Nations, (1928-1929) 17 Geo. L. J. 221 Catherine Heard, The New European Extradition System (2009) 25 No. 10 Int'l Efrcmt L. Rep. 398 Donna M. Sheinbach, Examining Disputes Over Ownership Rights To Frozen Embryos
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12
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14
12, 16
12
12
12, 15, 16
16
5, 6 1, 2, 8, 17
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(1999) 48 Cath. U.L. Rev. 989. Fischer, Misappropriation of Human Eggs And Embryos And The Tort Of Conversion: A Relational View, 32 Loy. L.A. L. Rev. 381, 420-423 (1999) Hans Smit, International Res Judicata and Collateral Estoppel, (1962) 9 UCLA L. REV. 44, 53 Jacqueline D. Golub, The International Parental Kidnapping Crime Act Of 1993: The United States' Attempt To Get Our Children Back (1999) 24 Brooklyn J. Int'l L. 797 Jan Komrek, European Constitutionalism and the European Arrest Warrant: In Search of the Limits of Contrapuntal Principles (2007) 44 Common Mkt. L. Rev. 9 Janet Walker, Foreign Public Law And The Colour Of Comity: What's The Difference Between Friends? (2003) 38 Can. Bus. L.J. 36 Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. L. Collins, Foreign Relations and the Judiciary (2002), 51 I.C.L.Q. 485 Major Minor Progress Under The Third Pillar: EU Institution Building In The Sharing Of Criminal Record Information (2008) 8 Chi. -Kent J. Int'l & Comp. L. 111. N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, (2006) 27 U. Pa. J. Int'l Econ. L. 601 Note, Power to Stay Federal Proceedings Pending Termination of Concurrent State Litigation, (1950) 59 Yale L.J. 978, 983 Peter Pfund, The Hague Conference Celebrates Its 100th Anniversary (1993) 28 Tex. Int'l L.J. 531 Rebus Revisited: Changed Circumstances in Treaty Law (2005) 43 Colum. J. Transnat'l L. 459 Richard D. Kearney and Robert E. Dalton, The Treaty on Treaties (1970) 64 Am. J. Intl Law 495 Rosenne, Interpretation of Treaties in the Restatement and the International Law Commissions Draft Articles: A Comparison, (1966) 5 Col. J. Transnatl Law 205, 221. Sonia Bychkov Green, Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law (2009) 24 Wis. J.L. Gender & Soc'y 25. Symeon C. Symeonides, Choice of Law in the American Courts in 2007: Twenty -First Annual Survey, (2007) 56 Am. J. Comp. L. 243, 301 Ved P. Nanda, Bases for Refusing International Extradition Requests: Capital Punishment and Torture (2000) 23 Fordham Int'l L.J. 1369. Willis Reese, The Hague Conference on Private International Law (1985) 19 Int'l Law 881 14 19 6 6 1 1 9 14 3 3 2 4, 18 18 19 18 20 4 20
IX
MISCELLANEOUS Alabama Claims arbitration, J. B. Moore, International Arbitrations (New York: 1898) vol. 1 Child Support Act 1991 (U.K.), 1991 c. 48 Conference organized by CLT Scotland, Resolving The Problems Of Jurisdiction In Family Law, Brussels II And Points West, Janys M. Scott, Advocate, (Scotland, 26 October 2005). Council of the European Union, Outcome of Proceedings, 10 December 2001, 14867/1/01 REV I COPEN 79 CATS 50 Council Framework Decision on Taking Account of Convictions in the Member States of the European Union in the Course of New Criminal Proceedings COM(2005/0018 (CNS), 2 July 2007. Domicile Acts 1982 (Cth.). (Australia) Domicile Act 1976 (N.Z.), 1976/0017 (New Zealand) Domicile and Matrimonial Proceedings Act 1973 (U.K.) 1973 c.45 Explanatory report on the Hague Convention on the civil aspects of international child abduction, 1980 by Eliza Perez-Vera (Madrid, April 1981) Family Law Act 1986 (U.K.), 1986 c. 55 ILC Final Draft Articles on the Law of Treaties, 1966, Yrbk. ILC vol. 2 ILC Report on aut dedere aut judicare, Amnesty International Publications, (2009) Indian Code of Civil Procedure, 1908 Indian Draft Assisted Reproductive Technologies (Regulation) Bill & Rules, (2008) International Parental Kidnapping Crime Act (1993) 18 U.S.C. 1204 Letter from Elihu Root, Secretary of State, to Victor H. Metcalf, Secretary of Commerce and Labor (Mar. 16, 1906), in 288 Domestic Letters Of The Department Of State, cited in Green H. Hackworth, Digest Of International Law (1942) Louisiana Civil Code (1986) La. Rev. Stat. Ann. 9:124-125 Official Records of the General Assembly, Fifty-ninth Session, Supplement No.10 (A/59/10) The Harvard Draft Convention on the Law of Treaties (1935) 29 Am. J. Intl Law Supp. 653 8 10 19 14 1 19 3, 11 10 20 4 14 14 14 16 18 18 14 12 8
X
STATEMENT OF JURISDICTION
STATEMENT OF JURISDICTION The Applicant, the Republic of Bolita, on one side, and the Respondent, the Republic of Garundi on the other, have submitted by Special Agreement their differences, pursuant to Article 40, paragraph 1, of the Statute of the International Court of Justice. Therefore, both parties have accepted the jurisdiction of the ICJ pursuant to Article 36(1) of the Statute of the Court.
XI
STATEMENT OF FACTS
STATEMENT OF FACTS The Economic Union Treaty: Bolita and Garundi two developing countries formed an economic union in 1978 which provided for respect and comity for each others laws and recognition and enforcement of orders of each others courts. International law is recognized by the Constitutions of both nations as one of the sources of law in the interpretation of domestic laws. Citizenship Rules of Bolita and Garundi: Under Bolitian Laws, a child is a citizen of Bolita if he is born in Bolita or he is born outside of Bolita but to Bolitian citizens. Children born outside of Bolita to couples where only one parent is Bolitian are not entitled to citizenship unless the Bolitian parent is resident in Bolita at the time of delivery. Garundian Laws state that a child born in Garundi is a citizen of Garundi if its mother is a citizen of Garundi. Children born outside of Garundi are citizens of Garundi if their parents are Garundian citizens. The Surrogacy Contract: Jane Rathna, a Garundian citizen travelled to Bolita in 1992 and decided to work there. She married John Botisa in 1992 and had a daughter, Emily. Complications led Jane to undergo a hysterectomy rendering her unfit to bear any more children. In 2003, John and Jane froze their sperm and eggs, hoping to have future children by means of in vitro fertilization. In 2006, John and Jane trusted Janet Rathna (Janes sister a Garundian citizen) to carry the baby to term. As per their surrogacy contract, Janet was to deliver the child in Bolita for the child to clearly be a citizen of Bolita, but, in her final trimester, Janet decided to fly back to Garundi due to family reasons for a few days. Soon after, she developed complications, went into labour and delivered a baby boy Robert, in Garundi. Jane and Emily immediately travelled to Garundi to bring Robert back to Bolita.
XII
STATEMENT OF FACTS
Breach of the Surrogacy Contract: The concept of was surrogacy was unknown in Garundi. Janet came under tremendous local political and religious pressure not to hand over the child to Jane. John flew into Garundi to take Emily back to Bolita. Despite strong protests John had to fly back to Bolita without Emily, as Jane insisted that Emily remain in Garundi until the matter was resolved. Meanwhile, Janet filed with the Registrar of Births in Garundi as the mother of the child, naming the child Robert Rathna and declaring the father to be unknown. Her refusal to hand over Robert to Jane resulted in friction between the sisters as well as in Jane and Johns relationship. Conflicting Orders of the Courts of Bolita and Garundi: John filed for the specific performance of the Surrogacy contract with Janet in Bolita. The court pronounced an ex parte interim order declaring itself to have jurisdiction as per the surrogacy contract and ordering Janet to appear before the court within 30 days with Robert for the matter to be resolved as per the terms of the contract. John also initiated legal proceedings before the courts in Garundi for an order to compel Janet to appear before the courts in Bolita. Janet filed objections between the courts in Garundi stating that she should not be compelled to travel to Bolita as the child was a citizen of Garundi. Janet also filed objections before the courts in Bolita, stating that they had no jurisdiction over the child. John in the meantime filed a claim before the courts in Bolita requesting that Jane be compelled to hand over custody of Emily to him. Jane entered objections before the Bolitian courts. Jane then filed for custody of Emily with the Garundian courts. Criminal Proceedings: Johns lawyers initiated criminal proceedings against Jane and Janet in the Bolitian courts for kidnapping and stealing genetic material respectively. The Bolitian courts issued arrest warrants to ensure attendance and appearance of Jane and Janet. Bolitian authorities were considering requesting Garundi to hand over Jane and Janet to face trial under the economic union treaty. XIII
QUESTIONS PRESENTED
QUESTIONS PRESENTED
WHETHER THE APPLICANT STATES COURTS HAVE JURISDICTION AND WHETHER THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE?
WHETHER THE APPLICANT STATES COURTS HAVE JURISDICTION AND WHETHER THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE?
WHETHER
THE
RESPONDENT
STATE
HAS
AN
INTERNATIONAL
OBLIGATION TO HAND OVER JANE AND JANET?
XIV
SUMMARY OF ARGUMENTS
SUMMARY OF ARGUMENTS 1 THE APPLICANT STATES COURTS HAVE JURISDICTION AND THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE 1.1
THE RESPONDENT STATE IS DUTY-BOUND TO COMPLY WITH HER INTERNATIONAL OBLIGATIONS UNDER THE E U TREATY
1.1.1
THE E U TREATY REQUIRES RECOGNITION AND ENFORCEMENT OF ORDERS OF EACH OTHERS COURTS
1.1.2 1.2 1.2.1 1.2.2
THE E U TREATY REQUIRES RESPECT AND COMITY FOR EACH OTHERS LAWS THE APPLICANT STATES LAW IS THE PROPER LAW FOR THE SURROGACY CONTRACT
THE PARTIES INTENDED THAT THE APPLICANT STATES LAW BE THE PROPER LAW
THE TRANSACTION HAS ITS CLOSEST AND MOST REAL CONNECTION WITH THE APPLICANT STATES LAW
1.3
THE RESPONDENT STATE CANNOT EVADE HER OBLIGATIONS UNDER INTERNATIONAL TREATY LAW
1.3.1
INTERNAL LAWS AND PUBLIC POLICY DO NOT INVALIDATE INTERNATIONAL TREATY OBLIGATIONS
1.4
GENERAL
PRINCIPLES
OF
INTERNATIONAL
LAW
ENDOW
JURISDICTION
AND
APPLICABLE LAW TO THE APPLICANT STATE
THE APPLICANT STATES COURTS HAVE JURISDICTION AND THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE
XV
SUMMARY OF ARGUMENTS
2.1
PARALLEL PROCEEDINGS IN THE RESPONDENT STATE REGARDING EMILYS CUSTODY DISPUTE VIOLATE THE E U TREATY
2.2
THE APPLICANT STATE BEING THE STATE OF EMILYS OF NATIONALITY, DOMICILE AND HABITUAL RESIDENCE HAS JURISDICTION IN THE MATTER OF HER CUSTODY
THE RESPONDENT STATE HAS AN INTERNATIONAL OBLIGATION TO HAND OVER JANE AND JANET
3.1
THE E U TREATY OBLIGATES RECOGNITION AND ENFORCEMENT OF THE ARREST WARRANT ISSUED BY THE COURTS OF THE APPLICANT STATE
3.2
ALTERNATIVELY, GENERAL PRINCIPLES OF INTERNATIONAL LAW REQUIRE THAT THE RESPONDENT STATE HAND OVER JANE AND JANET
ARGUENDO, THE RESPONDENT STATES COURTS CAN NOT ACCORD FAIR AND IMPARTIAL TRAIL
XVI
BODY OF ARGUMENTS
MEMORIAL FOR THE APPLICANT STATE
BODY OF ARGUMENTS
THE APPLICANT STATES COURTS HAVE JURISDICTION AND THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE ROBERTS CUSTODY ISSUE
1.1
THE RESPONDENT STATE IS DUTY-BOUND TO COMPLY WITH HER INTERNATIONAL OBLIGATIONS UNDER THE E U TREATY
It is humbly submitted that E U treaty is applicable to the present issue. A treaty in force is binding upon the parties and must be performed by them in good faith.1 The devotion of states to this principle of pacta sunt servanda is underscored by the travaux prparatoires of the VCLT.2 These rules are regarded by international courts as customary international law. 3 Further, a treaty must also be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.4 However, the object and purpose of a treaty cannot be used to alter the clear meaning of terms in the treaty.5 Emphasis lies on the actual text6 and the words of the
Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27 (1971), reprinted in 63 AM. J. INT'L L. 875, 876 (1969) Art. 26 [Vienna Conv.]; the ILC Final Draft Articles on the Law of Treaties, 1966, Yrbk. ILC vol. 2 at 210-11, Art 23; International Law Commissions Draft Declaration on Rights and Duties of States, G.A.Res. 375 (IV) of 6 December 1949 Art 13; McNair, Law of Treaties, ch 30; Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 (Declaration of Judge Kojevnikov). 2 Richard D. Kearney and Robert E. Dalton, The Treaty on Treaties (1970) 64 Am. J. Intl Law 495 at 516. 3 Richard K. Gardiner, Treaty Interpretation (New York: Oxford University Press, 2008) at 16. 4 Vienna Conv. Art 31; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] I.C.J. Rep. 160 ff.; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), [2002] I.C.J. Rep. at 625, 6456; Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. at 1045; Territorial Dispute (Libyan Arab Jamahiriya/Chad), [1994] I.C.J. Rep. at 6, 212; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), [1995] I.C.J. Rep. at 6, 18; R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (London: 1992) vol. 1at 1271. 5 Richard K. Gardiner, Treaty Interpretation (New York: Oxford University Press, 2008) at 198; Reino de Espana v. American Bureau of Shipping, Inc., 528 F. Supp. 2d 455, 45960, 2008 A.M.C. 83 (S.D. N.Y. 2008).
1
BODY OF ARGUMENTS
agreement.7 If the words express the meaning of the contracting nations plainly, distinctly, and perfectly, there ought to be no other means of interpretation. 8 Interpretation with extreme deference to the sovereignty of states, the presumption being in favour of assuming that a state intends to be bound by the least of any obligation which could be read from a provision of doubtful content or ambiguous expression, is inconsistent with the principle of effectiveness.9 Generally, a treaty should be liberally construed consistent with its intent.10 The word context is held to include the preamble and annexes of the treaty as well as any agreement or instrument made by the parties in connection with the conclusion of the treaty. 11 Present-day state of scientific knowledge can be taken into account while interpreting a treaty.12 In the context of the Treaty of Amity, Economic Relations and Consular Rights, 1955 recourse to the rules concerning the use of force is justified 13 under the provision whereby any relevant rules of international law applicable in the relations between the parties shall be taken into account in interpreting a treaty. 14 Thus, E U treaty is applicable to a dispute resultant from a surrogacy contract.
Rosenne, Interpretation of Treaties in the Restatement and the International Law Commissions Draft Articles: A Comparison, (1966) 5 Col. J. Transnatl Law 205, 221. 7 Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986) at 2047. 8 Georg Schwarzenberger, A Manual of International Law, 6th ed. (Oxon: Professional Books Limited, 1976) at 134; Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. 24. 9 Lauterpacht, Restrictive Interpretation and the Principle of Effectiveness in the Interpretation of Treaties (1949) 26 BYIL 48; McNair, Law of Treaties at 34550; Jesse Lewis (U.S.) v. Gr. Br. (David J. Adams case), (1921) 6 RIAA 85; 1 AD, p. 331. 10 U.S. v. Stuart, 1989-1 C.B. 312, 489 U.S. 353, 368, 109 S. Ct. 1183, 89-1 U.S. Tax Cas. (CCH) P 9185, 63 A.F.T.R.2d 89-681 (1989). 11 Rights of Nationals of the United States of America in Morocco (France v. United States of America) , [1952] I.C.J. Rep. at 176, 196; the Beagle Channel case, [1977] HMSO at 12; 52 ILR 93; Young Loan Arbitration (Belg. v. FRG), [1980] 59 ILR 495 at 530. 12 Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. at 1045, 1060. 13 Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep. at 161, 182; Iran v. USA, Case No. A/18, 5 Iran US CTR at 251; Loizidou v. Turkey (Preliminary Objections), European Court of Human Rights, Series A, No. 310 at 25; 103 ILR 6. 14 Vienna conv. Art 31(3) c.
2
BODY OF ARGUMENTS
1.1.1 THE E U
TREATY REQUIRES
RECOGNITION
AND ENFORCEMENT OF ORDERS OF EACH
OTHERS COURTS
In effect an order of Applicant states courts creates estoppel or res judicata between the same parties15 without any provisos.16 When substantial rights are at stake, the court will be wary to fill-in an omission. 17 Moreover, public interest requires that there be an end of litigation.18 Effective application of this provision of the E U Treaty requires that parallel proceedings should not be conducted. Parallel proceedings carry the risk of inconsistent decisions in different courts on the same issues between the same parties. 19 A stay of litigation minimizes the risk of inconsistent judgments with respect to related claims 20 and enables the recognition and enforcement of orders of each others courts. 21 Additionally, comity demands that such a situation should not be permitted to occur It is a recipe for confusion and injustice.22 Additionally where a party having opportunity fails to challenge the jurisdiction of the foreign Court and allows it to be decided ex parte the presumption23 can be taken that the
15
Cf Judgment of a foreign Court creates estoppel or res judicata between the same parties, provided such Judgment is not subject to attack under any of the Clauses (a) to (f) of Section 13 Indian Code of Civil Procedure, 1908; Maganbhai Chhotubhai Patel v. Manniben, AIR 2002 KAR 356; Deva Prasad Reddy v. Kamini Reddy, AIR 1985 GUJ 187. 16 Compromis 1. 17 Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 17, 57 S. Ct. 100 (1936). 18 Bailey v. South Carolina Inc. Co., (1813) 6 S.C.L. (1 Tread. Const.) 381, 415 (opinion of Smith, J.); Coulborn v. Joseph, (1943) 195 Ga. 723, 25 S.E.2d 576; Kane v. Central Am. Mining & Oil, Inc., (S.D.N.Y. 1964) 235 F. Supp. 559; DeYoung v. DeYoung, (1946) 27 Cal. 2d 521, 165 P.2d 457; Neporany v. Kir, (1st Dep't 1958) 5 App. Div. 2d 438, 173 N.Y.S.2d 146; In re Rutherford's Estate, 182 Misc. 1019, 46 N.Y.S.2d 871 (Sur. Ct. 1944); Bates v. Bates, (1930) 53 Nev. 77, 292 P. 298; May v. Roberts, (1930) 133 Ore. 643, 286 P. 546. 19 N. Jansen Calamita, Rethinking Comity: Towards a Coherent Treatment of International Parallel Proceedings, (2006) 27 U. Pa. J. Int'l Econ. L. 601 at 611. 20 Evergreen Marine Corp. v. Welgrow Int'l Inc., (S.D.N.Y. 1997) 954 F. Supp. 101, 104. 21 Compromis 1. 22 The Abidin Daver, [1984] 1 A.C. at 412; Showlag v. Mansour, [1995] 1 A.C. 431 (P.C. 1994) (appeal taken from Jersey) (U.K.); Hunt v. BP Exploration Co. (Libya), (N.D. Tex. 1980) 492 F. Supp. 885; B.P. Exploration Co. (Libya) v. Hunt, [1983] 2 A.C. 352 (H.L. 1981) (appeal taken from Eng.); See also Note, Power to Stay Federal Proceedings Pending Termination of Concurrent State Litigation, (1950) 59 Yale L.J. 978, 983. 23 Indian Code of Civil Procedure, 1908 sec 14.
3
BODY OF ARGUMENTS
Court had the jurisdiction to try the case.24 In the instant case the Applicant States courts have issued an ex parte interim order.25 It is humbly submitted that compliance with the E U treaty requires enforcement of this order and a stay of the parallel proceedings in the Respondent State. 1.1.2 THE E U TREATY REQUIRES RESPECT AND COMITY FOR EACH OTHERS LAWS The word comity presupposes friendship and the prevalence of equity and justice. 26 Many scholars and courts have variedly characterized comity as a rule of public international law,27 a moral obligation,28 expediency, 29 courtesy30 or reciprocity.31 Thus, the word comity has had numerous interpretations but the basic principle underlining its existence is international cooperation.32 Moreover, in the application of choice of law rules even in the absence of treaty, they [States] are not, in principle, free to disregard foreign law altogether.33 When there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is. 34 The Applicant States courts have provided for specific enforcement of surrogacy contracts.35 Whereas the Respondent State has no laws
24 25
Dr. Padmini Mishra v. Dr. R. C. Mishra, AIR 1991 Ori 263. Compromis 7. 26 Russian Republic v. Cibrario, 235 N. Y. 255. as quoted in Comity 12 Va. L. Rev. 353 at 359, 1925 -19262. 27 Letter from Elihu Root, Secretary of State, to Victor H. Metcalf, Secretary of Commerce and Labor (Mar. 16, 1906), in 288 Domestic Letters Of The Department Of State, cited in Green H. Hackworth, Digest Of International Law (1942) at 460. 28 Ian Brownlie, Principles of Public International Law 6th ed. (Oxford: Oxford University Press, 1979) at 28; Joseph Story, Commentaries on the Conflict of Laws (1834) 33; Arthur A. Alexander, Foreign Judgments Enforcements of Under the Comity of Nations, (1928-1929) 17 Geo. L. J. 221. 29 Somportex, Ltd. v. Philadelphia Chewing Gum Corp, (3d Cir. 1971) 453 F.2d 435, 440. 30 Rancis Wharton, A Treatise On The Conflict Of Laws 2d ed. (1881) at 5. 31 Hans Smit, International Res Judicata and Collateral Estoppel, (1962) 9 UCLA L. REV. 44, 53. 32 L. Collins, Foreign Relations and the Judiciary (2002), 51 I.C.L.Q. 485 at 504; Lawrence Collins, Comity in Modern Private International Law in James Fawcett, ed., Reform and Development of Private International Law: Essays in Honour of Sir Peter North (Oxford: Oxford University Press, 2002). 33 Elihu Lauterpacht ed., Hersch Lauterpacht International Law Collected Papers, (Cambridge: 1970) vol. 1 at 38. 34 Hilton v. Guyot, (1895)159 U.S. 113, 164 at 163. 35 Compromis 4.
4
BODY OF ARGUMENTS
on this issue.36 In this light it is humbly submitted that Applicant States laws regarding surrogacy should be complied with by the Respondent State. 1.2 THE APPLICANT STATES LAW IS THE PROPER LAW FOR THE SURROGACY CONTRACT The essential validity of a contract is governed by its proper law.37 The proper law is the system of law by which the parties intended the contract to be governed, or, where their intention is neither expressed nor to be inferred from the circumstances, the system of law with which the transaction has its closest and most real connection. 38 Further, the doctrine of forum non conveniens39 provides jurisdiction on considerations of convenience, fairness, and judicial economy. 40 1.2.1 THE PARTIES INTENDED THAT THE APPLICANT STATES LAW BE THE PROPER LAW The intention of the parties will be conclusive 41 and this is consistent with policy. 42 Principles of contract laws will govern surrogacy contracts.43 Proceedings instituted in breach of such
36 37
Compromis 6,8. Peninsular and Oriental Steam Navigation Co. v. Shand, (1865) 3 Moo PCC NS 272, 6 New Rep 387 (Privy Council); Lloyd v. Guibert, (1865) LR 1 QB 115, 6 B & S 100 (Exchequer Chamber); Robert v. International Trustee for the Protection of Bondholders AG, [1937] AC 500, [1937] ALL ER 164 (House of Lords); Coast Lines Ltd. v. Hudig & Veder Chartering NV, [1972] 2 QB 34, [1972] 1 ALL ER 451; Amin Rasheed Shipping Corporation v. Kuwait Insurance Co, [1983] 2 ALL ER 884, [1983] 3 WLR 241 (House of Lords); The EEC Convention on the Law Applicable to Contractual Obligations, Art. 8. 38 Case Concerning the Payment of Various Serbian Loans Issued in France , (1929) P.C.I.J., Ser. A, no. 20; Chartered Mercantile Bank of India v. Netherlands Co., (1883) 10 Q.B.D. 521 (C.A.); Compagnie Tunisienne de Navigation S.A. v. Compagnie d Armement Maritime S.A ., [1971] A.C. 572; Amin Rasheed Shipping Corporation v. Kuwait Insurance Co, [1984] A.C. 50; Falconbridge, Conflict of Laws, 5th ed., at 383-85. 39 Gilbert v. Gulf Oil Co, (1947) 330 U.S. at 507; Canada Malting Co. v. Paterson Steamships, Ltd. (1932) 285 U.S. 413, 422; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981); American Dredging Co. v. Miller, (1994) 510 U.S. 443, 449 n. 2. 40 La Socit du Gaz de Paris v. Socit Anonyme de Navigation Les Armateurs Franais , [1925] 23 Lloyd's List. Rep. 209, 213 (Sess.); Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd., (3d Cir.2006) 436 F.3d 349. 41 Compromis 7; Robert v. International Trustee for the Protection of Bondholders AG, [1937] AC 500, [1937] ALL ER 164 (House of Lords); Barcelo v. Electrolytic Zinc Co. of Australia Ltd., (1932) 48 C.L.R. 391; British Controlled Oilfields v. Stagg, [1921] 1 Lloyds Rep. 613; Tzortzis v. Monark Line, A/B [1968] 1 W.L.R. 406, 411 (C.A.); Lord Wright, Legal Essays and Addresses, at 164; The EEC Convention on the Law Applicable to Contractual Obligations, Art. 3; In re Paternity & Custody of Baby Boy A., (Minn. Ct. App. Dec. 11, 2007) No. A07-452, 2007 WL 4304448; Johnson v. Calvert, (Cal. 1993) 851 P.2d 776 at 783; McDonald v. McDonald,
5
BODY OF ARGUMENTS
intention shall be stayed. 44 Moreover, Bolitian choice of law is not an attempt to evade Garundian law,45 as Garundian law neither addresses nor prohibits gestational surrogacy agreements.46 Consequentially, the surrogacy contract is legally enforceable and does not violate the public policy of the Respondent State.47 Moreover, even if the Respondent States public policy is violated; her laws are not applicable in absence of any substantial relationship with the transaction.48 1.2.2 THE
TRANSACTION HAS ITS CLOSEST AND MOST REAL CONNECTION WITH THE
APPLICANT STATES LAW
Contracts are governed by the law of the country with which it is most closely connected. 49 In this inquiry the place of contracting, the place of performance, the places of residence of the parties, and the nature and subject matter of the contract are taken into consideration. 50 The lex loci contractus51 gains additional favour when a contract is made between parties present
(N.Y. App. Div. 1994) 608 N.Y.S.2d 477; In re Marriage of Buzzanca, (Cal. Ct. App. 1998) 72 Cal. Rptr. 2d 280, 282. 42 In re C.K.G., (Tenn. 2005) 173 S.W.3d 714; Speranza v. Repro Lab Inc., (1st Dept. 2009) 62 A.D.3d 49, 5255, 875 N.Y.S.2d 449. 43 Davis v. Davis, (Tenn. 1992) 842 S.W.2d 588, 597-98; Kass v. Kass, (App. Div. 1998) 673 N.Y.S.2d 350, 696 N.E.2d 174; Hodas v. Morin, (Mass. 2004) 814 N.E.2d 320; Lamaritata v. Lucas, (Fla. Ct. App. 2002) 823 So.2d 316; Litowitz v. Litowitz, (Wash. 2002) 146 Wn. 2d 514, 48 P.3d 261. 44 The Eleftheria, [1970] P 94, [1969] 2 ALL ER 4 (Admiralty Division). 45 In re Paternity & Custody of Baby Boy A., (Minn. Ct. App. Dec. 11, 2007) No. A07-452, 2007 WL 4304448 at 3. 46 Ibid; Compromis 6, 8; See also Symeon C. Symeonides, Choice of Law in the American Courts in 2007: Twenty-First Annual Survey, (2007) 56 Am. J. Comp. L. 243, 301. 47 In re Paternity & Custody of Baby Boy A., (Minn. Ct. App. Dec. 11, 2007) No. A07-452, 2007 WL 4304448 at 5-6, 8. 48 Hodas v. Morin, (Mass. 2004) 814 N.E.2d 320 at 326; Sonia Bychkov Green, Interstate Intercourse: How Modern Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law (2009) 24 Wis. J.L. Gender & Soc'y 25. 49 The EEC Convention on the Law Applicable to Contractual Obligations , Art. 4; In The Interest of K.M.H., (2007) 169 P.3d at 1030; Hodas v. Morin, (Mass. 2004) 814 N.E.2d 320; In re Doe, (N.Y. Sur. Ct. 2005) 793 N.Y.S.2d 878. 50 Re United Railways of Havana v. Warehouses Ltd., [1960] Ch, 52, 91 (C.A.); Weckstrom v. Hyson, [1966] V.R. 277; Sun Oil Co. v. Wortman, 486 U.S. 717, 736, 100 L. Ed. 2d 743, 108 S. Ct. 2117 (1988). 51 ARY Jewelers v. Krigel, 277 Kan. 464, 481, 85 P.3d 1151 (2004); Wilkinson v. Shoney's, Inc., 269 Kan. 194, 209-10, 4 P.3d 1149 (2000); Foundation Property Investments v. CTP, 37 Kan. App. 2d 890, Syl. P4, 159 P.3d 1042 (2007); Layne Christiansen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 141-42, 38 P.3d 757 (2002); In re M.K.H., 169 P.3d at 1031-32.
6
BODY OF ARGUMENTS
in the same country.52 In case of surrogacy contracts place of insemination 53 also determines the substantial relationship. Courts have often leaned towards lex fori, or law of the forum absent a clear showing that another state's law should apply. 54 Further, the maxim ut res magis valeat quam pereat presumes that parties to a contract did not intend to be governed by a law by which their agreement would be invalid. 55 It is humbly submitted that significant contacts and a significant aggregation of contacts with Applicant State make application of Applicant States law appropriate and just, since neither party would have been justified in expecting the Respondent States law to have a controlling interest as to any dispute between them. 1.3 THE RESPONDENT STATE CANNOT EVADE HER OBLIGATIONS UNDER INTERNATIONAL TREATY LAW The proper law of the contract, and not the law of the place of performance, determines the excuses for non-performance56 and the substance of the obligation. 57 In the instant case the proper law and the intended place of performance both are the Applicant State and public policy is not an excuse for non-enforcement under the Applicant States laws.
52 53
Sayers v. International Drilling Co. , [1971] 1 W.L.R. 1176, 1187 (C.A.). In Re Marriage of Adams, 133 Ill. 2d 437, 447, 551 N.E.2d 635, 141 Ill. Dec. 448 (1990); Hodas v. Morin, (Mass. 2004) 814 N.E.2d 320. 54 Dragon, 277 Kan. at 790; Systems Design v. Kansas City P.O. Employees Cred. Union, 14 Kan. App. 2d 266, 269, 788 P.2d 878 (1990); Brown v. Gadson, (Ga. Ct. App. 2007) 654 S.E.2d 179; Miller-Jenkins v. MillerJenkins, (Vt. 2006) 912 A.2d 951, 965-68. 55 Peninsular and Oriental Steam Navigation Co v. Shand (1865) 3 Moo. P. C. (N.S.) 272; N. V. Handel Maatschappij J. Smits v. English Expoertes (Londaon) Ltd. , [1955] 2 Lloyds Rep. 317 (C.A.); Coast Lines Ltd. v. Hudig & Veder Chartering NV, [1972] 2 QB 34, 44, 48 (C.A.). 56 Jacobs v. Credit Lyonnais, (1884) 12 QBD 589 (Court of Appeal); J. H. C. Morris and P. M. North, eds., Cases and Materials on Private International Law, (London: Butterworths, 1984) at 453. 57 Bonython v Commonwealth of Australia, [1951] AC 201 (Privy Council); Re Helbert Wagg & Co Ltds Claim, [1956] Ch 323, [1956] 1 ALL ER 129 (Chancery Division).
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1.3.1 INTERNAL
LAWS AND
PUBLIC POLICY
DO NOT INVALIDATE INTERNATIONAL TREATY
OBLIGATIONS
States are obliged to not invoke the provisions of their internal law as justification for their failure to perform a treaty obligation.58 This is a long-standing principle of customary international law.59 The stipulations of a treaty are binding upon the parties, notwithstanding the public character of their affected national legislations. 60 The basic principle of pacta sunt servanda makes it impossible for States to be released from their obligations according to a treaty which they have unilaterally entered into.61 Further the content of public policy is variable and reliance it on goes against good faith obligation for observance of treaties.62 As per the common law attitude there is no room for the application of public policy. 63 Courts will not allow a contracting party to refuse performance on the ground that by performing he would be infringing the law of the country in which he resides or of which he is a national. 64 A case of serious injustice must be involved. 65 To justify its refusal to enforce a foreign judgment, a U.S. court must find that the judgment not only affirmatively acts on matters as to which local law is silent, but also contravenes a crucial stated public policy affecting a
58
Vienna Conv. Art 27; Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America) [1992] I.C.J. Rep. at 3, 32; Greco-Bulgarian Communities, (1930) PCIJ Series B, No. 17, at 32; Certain German Interests in Polish Upper Silesia (Merits), (1926) PCIJ Series A, No. 7, at 19; Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement case, [1988] I.C.J. Rep. at 12, 345; Alabama Claims arbitration (UK v US), J. B. Moore, International Arbitrations (New York: 1898) vol. 1 at 495. 59 The Harvard Draft Convention on the Law of Treaties (1935) 29 Am. J. Intl Law Supp. 653, at 662, art 23, Excuses for failure to perform; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory (1932) PCIJ, Series A/B, No. 44, at 21, 24. 60 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory , (1932) Series A/B, No. 44, at 24; Free Zones of Upper Savoy and the District of Gex, (1932) Series A/B, No. 46, at 167. 61 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 140 (Dissenting Opinion of Judge Cordova). 62 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 120-31 (Separate Opinion of Sir Percy Spender). 63 Nike Informatic Systems Ltd. v. Avac Systems, (1979) 105 D.L.R. 3 rd 455; Greenshields Inc. v. Johnston, (1981) 119 D.L.R. (3rd) 714; Ackerman v. Levine, (2d Cir. 1986) 788 F.2d 830, 842. 64 Royal Trustco Ltd. v. Campeau Corp. (1981) 118 D.L.R. (3rd) 207; Regazzoni v. K. C. Sethai Ltd., [1956] 2 Q.B. 490,514, 523 (C.A.). 65 Hilton v. Guyot, (1895) 159 U.S. 113.
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fundamental interest of the forum. 66 The narrowness of the public policy exception to enforcement reflects an axiom fundamental to the goals of comity and res judicata that underlies the doctrine of recognition and enforcement of foreign judgments. 67 In addition the public policies prevalent in the Respondent State were not so closely linked to the object and purpose of the E U treaty that they constituted an essential basis for her consent and they do not radically alter the extent of the obligations to be performed. 68 It is humbly submitted that the Respondent States constitution recognises International Law as a source of law for interpretation of domestic laws.69 The ICCPR, ICESCR to which both States are parties and various other international instruments favour enforcement of surrogacy contracts.70 Consequently, as the Respondent States law is silent on the issue a presumption lies in the favour of surrogacy contracts being enforceable in the Respondent State. 1.4 GENERAL PRINCIPLES OF INTERNATIONAL LAW ENDOW JURISDICTION AND APPLICABLE LAW TO THE APPLICANT STATE It is humbly submitted that it is a general principle of International Law that either nationality71 or domicile 72 determine jurisdiction and applicable law. In the instant case
66
Compania Mexicana Rediodifusora Franteriza v. Spann, (N.D. Tex. 1941) 41 F.Supp 907, 908-09, aff'd (5th Cir. 1942) 131 F.2d 609. 67 Ackerman v. Levine, (2d Cir. 1986) 788 F.2d 830, 842. 68 Gabkovo-Nagymaros Project (Hungary/Slovakia), [1997] I.C.J. Rep. 104; Fisheries Jurisdiction (U.K. v. Ice.), [1973] I.C.J. Rep. 40, 43; Rebus Revisited: Changed Circumstances in Treaty Law (2005) 43 Colum. J. Transnat'l L. 459. 69 Compromis 2. 70 Right to Family, Privacy and Fundamental Freedoms as recognized by Charter of the United Nations, Art. 55; Universal Declaration of Human Rights, Art. 12; International Covenant on Economic, Social and Cultural Rights Art. 10; International Covenant on Civil and Political Right Art. 17; American Convention on Human Rights Arts 11 and 17; European Convention on Human Rights Art. 8; African Charter on Human and Peoples' Rights Art. 18; Right to procreational autonomy and privacy in Eisenstadt v. Baird, (1972) 405 U.S. 438, 453; Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 at 486; Davis v. Davis, 842 S.W.2d 588. 71 Hope v. Hope, (1854) a DeG.M. & G. 328; Re Willoughby, (1885) 30 Ch.D. 324 (C.A.); Harben v. Harben, [1957] 1 W.L.R. 261; Re P (GE) (an infant), [1965] 3 ALL ER 977; McM. V. C. (No. 2), [1980] 1 N.S.W.L.R. 27; See Below 2.2.1. 72 Malcolm N. Shaw, International Law, 6th ed. (Cambridge: Cambridge University Press, 2008) at 647; See Below 2.2.2.
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Roberts nationality and domicile both are the Applicant State. Consequently the Applicant State has jurisdiction and her law is the applicable law. Pursuant to the Applicant States citizenship rules Robert is her citizen. 73 He is also domiciled in the Applicant State. Domicile does not depend on the place where the child is born, nor the place where his mother, father or he reside, but on the domicile of his father in case of a legitimate child.74 In fact if parents change their domicile between time of conception and of birth it is arguable that the law of the fathers domicile at the former time deserves consideration.75 Child conceived using artificial reproductive techniques is not illegitimate and consent establishes paternity. 76 The embryos were created during John and Janes marriage confirming Roberts legitimacy77 and their legal status as natural parents. 78 Moreover, it is sensible if a new born takes the habitual residence of his parents. 79 Unborn children possess legal rights.80 Personhood of a foetus has been affirmed in certain instances. 81 It would be absurd to recognize the viable foetus as a person for purposes of
73 74
Compromis 3. Peal v Peal (1930) 46 T.L.R. 645; Grant v Grant, (1931) S.C. 238; Udny v Udny (1869) LR 1 Sc; P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 135; Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) at 126. 75 Taintor (1940) 18 Can BR 589, 596, 597; P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 896. 76 Anonymous v. Anonymous, (1964) 41 Misc. 2d 886, 246 N.Y.S.2d 835; People v. Sorensen, (1968) 68 Cal. 2d 280, 66 Cal. Rptr. 7, 437 P.2d 495; Strnad v. Strnad, (Sup. Ct. 1948) 190 Misc. 786, 78 N.Y.S.2d 390. 77 In the Interest of O.G.M., A Child, (Tex. Civ. App., 1st Dist., 1999) 988 S.W. 2d 473; Indian Draft Assisted Reproductive Technologies (Regulation) Bill & Rules, (2008) ch. VII(34)(1)-(5). 78 Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760; Owens v. Bell (1983), 6 Ohio St.3d 46, 48, 6 OBR 65, 67-68, 451 N.E.2d, 241, 243. 79 P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 169. 80 Commonwealth v. Morris, (Ky. 2004) 142 S.W.3d 656; Kelly v. Gregory, (N.Y. 1953) 125 N.Y.S.2d 696, 698. Hornbuckle v. Plantation Pipe Line Co., (Ga. 1956) 93 S.E.2d 727; Bennett v. Hymers, (N.H. 1958) 147 A.2d 108; Smith v. Brennan, (N.J. 1960)157 A.2d 497; Louisiana Civil Code (1986) La. Rev. Stat. Ann. 9:124-125; Donna M. Sheinbach, Examining Disputes Over Ownership Rights To Frozen Embryos (1999) 48 Cath. U.L. Rev. 989. 81 Commonwealth v. Cass, (Mass. 1984) 467 N.E.2d 1324, 1330; Whitner v. State (S.C. 1997) 492 S.E.2d 777; Re Salaman [1908] 1 Ch 4; Re Callaghan [1948] NZLR 846.
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homicide laws and wrongful death statutes but not for purposes of statutes proscribing child abuse.82 The best interests of the child standard has also been extended to pre -embryos. 83 It is humbly submitted that child protection laws that protect Emily and accord the Applicant State with jurisdiction and applicable law for her custody dispute should also extend to her brother Robert. 2 THE APPLICANT STATES COURTS HAVE JURISDICTION AND THE APPLICANT STATES LAW IS THE APPLICABLE LAW TO DETERMINE EMILYS CUSTODY ISSUE 2.1 PARALLEL PROCEEDINGS IN THE RESPONDENT STATE REGARDING EMILYS CUSTODY DISPUTE VIOLATE THE E U TREATY It is humbly submitted that international judicial comity84 requires stay of a parallel suit under the doctrine of lis alibi pendens. 85 A treaty must be given effective interpretation to realize its object and purpose.86 A court may stay its proceeding when related proceedings are pending in another contracting state and the court in that State was first seised of the matter and may decline jurisdiction if the court first seised could consolidate both proceedings and try them together.87 Related proceedings are those so closely connected that it is expedient to hear
82 83
Whitner v. State (S.C. 1997) 492 S.E.2d 777 at 780. Litowitz v. Litowitz, (Wash. 2002) 48 P.3d 261. 84 See Above 1.1.2. 85 Ingersoll Milling Machine Co. v. Granger, (7th Cir. 1987) 833 F.2d 680, 685; The Bremen v. Zapata OffShore Co., (1972) 407 U.S. 1, 9; Anne-Marie Slaughter, Breard: Court to Court (1998) 92 A.J.I.L. 708; The Indian Code of Civil Procedure (1908) at Sec. 10. 86 See Above 1.1. and 1.1.1. 87 Compromis 9; EC, Convention of 10th June 2009 on Jurisdiction And The Recognition And Enforcement Of Judgments In Civil And Commercial Matters, [2009] O.J. L 147/5 at 13 Art. 28; EC, Council Regulation (EC) 44/2001 of 22 December 2000 on Jurisdiction And The Recognition And Enforcement Of Judgments In Civil And Commercial Matters, [2000] O.J. L 12 Art. 28; EEC, Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgments In Civil And Commercial Matters, [1988] 88/592/EEC Art. 22(1)(2).
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and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. 88 In the instant case the matter of Emilys custody is so intrinsically connected to the matter of Robert s custody of that both the related proceedings should be heard and determined by the court first seised of the matter. Furthermore, where the jurisdiction of the court first seised of proceedings involving the same cause of action and between the same parties is established any court other than the court first seised shall decline jurisdiction in favour of that court. 89 Where proceedings relating to parental responsibility of the same child are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 90 On establishment of jurisdiction the courts in the place second seised must decline jurisdiction. 91 2.2 THE APPLICANT STATE BEING THE STATE OF EMILYS OF NATIONALITY, DOMICILE AND HABITUAL RESIDENCE HAS JURISDICTION IN THE MATTER OF HER CUSTODY
88 89
David McClean, ed., Morris: The Conflict of Laws, 4th ed. (London: Sweet & Maxwell, 1993) at 98. EC, Convention of 10th June 2009 On Jurisdiction And The Recognition And Enforcement Of Judgments In Civil And Commercial Matters, [2009] O.J. L 147/5 Art. 27; EC, Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2000] O.J. L 12 Art. 27; EEC, Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1988] 88/592/EEC Art. 21. 90 EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, [2003] O.J. L 338 [Council Regulation]; Conference organized by CLT Scotland, Resolving The Problems Of Jurisdiction In Family Law, Brussels II And Points West, Janys M. Scott, Advocate, (Scotland, 26 October 2005). 91 Ibid. Council Regulation, Art. 19.
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It is humbly submitted that it is a general principle of International Law that nationality, domicile or habitual residence determine jurisdiction and applicable law .92 In the instant case Emilys nationality, domicile and habitual residence lie with the Applicant State. 93 2.2.1 THE APPLICANT STATE IS THE STATE OF EMILYS NATIONALITY Nationality is a criterion for personal law. 94 If the authorities of the State of the infant's nationality consider that the interests of the infant so require they may after having informed the authorities of the State of his habitual residence take measures according to their own law for the protection of his person or property. 95 Courts always retain jurisdiction over citizens wherever they may be.96 2.2.2 THE APPLICANT STATE IS THE STATE OF EMILYS DOMICILE It is universally recognised that questions affecting the personal status should be governed constantly by one and the same law, irrespective of where the person may happen to be or where the facts giving rise to the question may have occurred. 97 The custody of a child will be determined based on the domicile of the child. 98 A legitimate child born during the lifetime of his father has his domicile of origin in the country in which his father was domiciled at the time of his birth. 99. Domicile does not depend on the place where the child is
92
P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 134 & 162. 93 Compromis 3, 4. 94 P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 159 ; Palsson (1986) IV Hague Recueil 316, 332 et seq ; Hague Conference on Private International Law, Hague Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants, 5 October 1961, UNTS 1969, pp. 145 ff. Art. 3. 95 Ibid. Art.4. 96 Hope v. Hope, (1854) 4 DeGM & G 328; 23 LJCH 682; Re Willoughby, (1885) 30 ChD 324; Robert v. Sandbach Justices, ex p Smith, [1951] 1 KB 62. 97 Ernst Rabel, The conflict of Laws: A Comparative Study, 2nd ed. (1958-64) vol. 1 at 109; Kahn-Freund (1974) III Hague Recueil 139, 334-335, 391-492. 98 Perry v. Ponder, (Tex. Civ. App. Dallas 1980) 604 S.W.2d 306; Palsson (1986) IV Hague Recueil 316, 332 et seq.; P.M. North and J.J.Fawcett eds. Cheshire and Norths Private International Law, 13th ed. (LexisNexis Butterworths: New Delhi, 1999) at 134. 99 Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) at 126.
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born, nor the place where his mother, father or he reside, but on the domicile of his father in case of a legitimate child. 100 If both parents are alive but are living apart, the child's domicile is that of the mother, if the child has his home with her and no home with his father. 101 In the instant case Emily has a home102 with her father. Furthermore, Jane is domiciled in the Applicant State.103 An existing domicile is presumed to continue until it is proved that a new domicile has been acquired. 104 A new domicile is not acquired until there is not only actual residence in some other country but also a fixed intention of establishing a permanent residence there. 105 If a person intends to reside in a country for a fixed period or for an indefinite time but clearly intends to leave the country at some time his domicile does not alter.106 The burden of proving a change of domicile is a very heavy one and rests on the claimant.107 2.2.3 THE APPLICANT STATE IS THE STATE OF EMILYS HABITUAL RESIDENCE Habitual residence of the child as a determinant of jurisdiction and applicable law as referred to in the Hague Conferences conventions has been influential in establishing customary norms that are even applied by states that do not formally accede to them. 108 If the parents are
100
DEtchegoyen v. DEtchegoyen [1888] 13 PD 132; Peal v Peal [1930] 46 T.L.R. 645; Grant v Grant [1931] S.C. 238; Udny v Udny (1869) LR 1 Sc; Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11th ed. (London: Stevens & Limited, 1987) at 421 at 126. 101 Domicile and Matrimonial Proceedings Act 1973 (U.K.) 1973 c.45, s. 4(1), (2) (a); Domicile Acts 1982 (Cth.). s. 9; Domicile Act 1976 (N.Z.), 1976/0017, s. 6; Re P (GE) (An infant) [1965] Ch 568 at 585-586; Re Y (minors) (Adoption: Jurisdiction) [1985] Fam 136. 102 Re P (GE) (An infant) [1965] Ch 568 at 585-586; Re Y (minors) (Adoption: Jurisdiction) [1985] Fam 136. 103 Compromis 4, 6. 104 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319; Winans v Att. Gen. [1904] A.C.287; Ramsay v Liverpool Royal infirmary [1930] A.C. 588; In the Estate of Fuld (no 3) [1968] P.675, 685; Domicile Act 1976 (N.Z.), 1976/0017, New Zealand, s. 11; Domicile Acts 1982 (Cth.). s. 7; P.E. Nygh, Conflict of Laws in Australia, 6th ed., (1995) at 119-200; Re Jones Estate [1921] 192 Iowa 78, 182 NW 227. 105 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 319. 106 Jopp v Wood [1865] 4 D.J. & S.616; Qureshi v. Qureshi (1972) Fam.173; Attn. Gen. v Rowe [1862] 1 H. & C.31. 107 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319; Winans v Att. Gen. [1904] A.C.287; Ramsay v Liverpool Royal infirmary [1930] A.C. 588; In the Estate of Fuld (no 3) [1968] P.675, 685. 108 Peter Pfund, The Hague Conference Celebrates Its 100th Anniversary (1993) 28 Tex. Int'l L.J. 531; Willis Reese, The Hague Conference on Private International Law: Some Observations (1985) 19 Int'l Law 881;
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living together and the child is living with them it will take the parents habitual residence. 109 Habitual residence is the country where the child lived before the marital breakdown. 110 The parent who absconds with the child cannot claim a new habitual residence. 111 Both parents must consent to the change of habitual residence. 112 Jurisdiction rests with the courts of the country from where the child has been wrongfully removed or retained.113 2.2.3.1 Jurisdiction to determine Emilys custody lies with the Applicant State in view of Emilys wrongful removal and retention in the Respondent State Improper removal is defined as the failure to return a child across an international frontier at the end of any temporary stay in a territory other than that whe re the custody is exercised114 The retention of a child is to be considered wrongful where - a) it is in breach of rights of custody attributed to a person either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. 115 In case of wrongful removal or retention of the child, the authorities of the Contracting State in which the child was
Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45, ss. 5,6; Family Law Act 1986 (U.K.), 1986 c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991 c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in the Matrimonial Matters ( Brussels II), [1998] OJ C221/2; Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of Thorpe LJ); de Winter (1969) III Hague Recueil 357, 419-454; Cavers (1972) 21 Am ULR 475. 109 Re A (Minors) [1996] 1 WLR 25. 110 Cohen v. Cohen, (Sup. Ct. 1993) 602 N.Y.S.2d 994, 998. 111 Friedrich v. Friedrich, (6th Cir. 1993) 983 F.2d 1396, 1401; Cohen v. Cohen, 602 N.Y.S.2d at 994. 112 RE K (Abduction: Consent : Forum Conveniens) [1995] 2 FLR 211, CA; Findlay v Findlay (No 2) [1995] SLT 492. 113 Wanninger v. Wanninger, 850 F. Supp. 78. 114 European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children, (20 May, 1980) Eur T.S. 105 Art 1(d)(i). 115 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Art.3; The Convention On Jurisdiction, Applicable Law, Recognition, Enforcement And Co-Operation In Respect Of Parental Responsibility And Measures For The Protection Of Children, 1996 Art 7(2); Inter-American convention on the international return of children, 15 th July 1989 Art 4.
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habitually resident immediately before the removal or retention keep 116 or retain117 their jurisdiction and shall have jurisdiction to consider a petition for the child's return.118 Moreover, such jurisdiction can be circumvented if there is specific evidence of grave risk and mere separation of the child from its parent not sufficient. 119 Acquiescence for removal of the child requires either an act or statement with the requisite formality, such as testimony in a judicial proceeding; a convincing written renunciation of rights; or a consistent attitude of acquiescence over a significant period of time. 120 It is humbly submitted that the Applicant State is the State of Emilys habitual residence wherefrom she has been wrongful removed and retained. Consequentially, the Applicant State has jurisdiction and her law is the applicable law to determine Emilys custody issue. 2.2.3.2 International Child Abduction by a parent to gain jurisdictional advantage in matters of custody runs counter to the Best Interests of the Child The best way to combat illegal child removals is to refuse to grant them legal recognition. 121 In all actions concerning children, undertaken by courts of law, the best interests of the child shall be a primary consideration.122 The widest possible protection and assistance should be
116
EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3, Art. 7. 117 EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility , [2003] O.J. L 338, p. 1 118 Organization of American States, Inter-American Convention on the International Return of Children, 15 July 1989, OAS, Treaty Series, No. 70, Art. 6. 119 David S. v. Zamira S., 151 Misc.2d 630, 574 N.Y.S.2d 429 (Fam. Ct. 1991); Thomson v. Thomson, 119 D.R.4th 253 (Can. 1994); E v E [1998] 2 FLR 980; Rydder v. Rydder, 49 F.3d 369 (8th Cir. 1995); Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII at Art. 20. 120 Wanninger v. Wanninger, 850 F. Supp. 78. 81-82 (D. Mass 1994); Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir. 1995); David v. Zamira S., 151 Misc.2d 630, N.Y.S. 429 (Fam. Ct.1991). 121 Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII; EC, Explanatory report on the Hague Convention on the civil aspects of international child abduction, 1980 by Eliza Perez-Vera (Madrid, April 1981) 122 Convention on the rights of the child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989), Art. 3.
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accorded to the family. 123 States shall take all appropriate measures to prevent the abduction of children for any purpose or in any form. 124 States shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. 125 The effect of consent to such resolutions of the General Assembly is an expression of an opino juris.126 Furthermore, bilateral treaties provide evidence of custom. 127 Consequently, such abduction of a child runs counter to the best interests of the child and many international agreements; it is therefore violative of the rights of a child as well as customary international law. 3 THE RESPONDENT STATE HAS AN INTERNATIONAL OBLIGATION TO HAND OVER JANE AND JANET 3.1 THE E U TREATY OBLIGATES RECOGNITION AND ENFORCEMENT OF THE ARREST WARRANT ISSUED BY THE COURTS OF THE APPLICANT STATE It is humbly submitted that the E U treaty must be adhered to in good faith in accordance with the ordinary meaning given to the words used in it.128 The words laws and orders have not
123
International Covenant on Civil and Political Rights, GA res. 44/128, annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989), Art. 23; International Covenant on Economic, Social and Cultural Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); 993 UNTS 3; 6 ILM 368 (1967), Art. 10; International Covenant on Civil and Political Rights, GA res. 44/128, annex, 44 UN GAOR Supp. (No. 49) at 207, UN Doc. A/44/49 (1989), Art. 17; Universal Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 at 71 (1948), Art. 12. 124 Convention on the rights of the child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989), Art. 8, 19, 11, 35. 125 Convention on the rights of the child, GA res. 44/25, annex, 44 UN GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989); 1577 UNTS 3; 28 ILM 1456 (1989), Art. 9. 126 R. Y. Jennings and A. D. Watts, eds., Oppenheims International Law 9th ed. (London: 1992) vol. 1 at 334; Military and Paramilitary Activities Case, [1986] I.C.J. Rep. at 89-90, 91. 127 Ian Brownlie, Principles of Public International Law (1973) at 13; Baxter, 129 Haaue Recueil (1970, I), 7591; Sorensen, Les Sources de droit International at 96-8 ; Nottebohm Case (Liechtenstein v Guatamela), [1955] I.C.J. Rep at 22; Lagos v Baggianini, [1955] 22 ILR 533 at 536-7; Lauritzen et al v Government of Chile, [1956] 23 ILR 70 at 715-16, 729-30; The State (Duggan) v Tapley, [1951] 18 ILR 109; The Italian National Reextradition Case, [1970] 70 ILR 374 at 376-7; North Sea, at 25. 128 Vienna Conv. Art. 31; See Above 1.1.
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been qualified with any adjective. 129 Where substantial rights are at stake, the court will be wary to fill-in an omission.130 The claimant of a meaning other than the ordinary meaning has the burden of proof.131 Member States of the European Union automatically enforce each others European arrest warrants.132 It requires each national judicial authority to recognize, ipso facto, a nd with a minimum of formalities, requests in regard to the surrender of a person made by the issuing judicial authority of another Member State.133 Member States should regard courts in other EU countries as sister courts and not interfere with, revoke, or review convictions of other EU countries.134 The offence of kidnapping shall without verification of double criminality give rise to surrender pursuant to a European arrest warrant.135 EWAs have been issued even for petty offenses like the theft of piglets or a cupboard door.136 It is humbly submitted that comity demands international cooperation. 137 Comity is a chameleon word.138 Just as the chameleon's colour changes to match its environment, so too the varying interpretations of comity establish its requirements depending on the environment
129 130
Compromis 1. Valentine v. U.S. ex rel. Neidecker, 299 U.S. 5, 17, 57 S. Ct. 100 (1936). 131 Hersch Lauterpacht, The Development of International Law by the International Court (Cambridge University Press: 1996) at 52-60. 132 Case Concerning The Arrest Warrant Of 11 April 2000 (Democratic Republic Of The Congo v. Belgium) [2002] I.C.J. Rep. 3 at 181; Council of the European Union, Outcome of Proceedings, 10 December 2001, 14867/1/01 REV I COPEN 79 CATS 50. 133 Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States. See http://europa.eu/scadplus/leg/en/lvb/l33167.htm; James B. Jacobs, Major Minor Progress Under The Third Pillar: EU Institution Building In The Sharing Of Criminal Record Information (2008) 8 Chi.-Kent J. Int'l & Comp. L. 111. 134 Council Framework Decision on Taking Account of Convictions in the Member States of the European Union in the Course of New Criminal Proceedings COM(2005/0018 (CNS), 2 July 2007. 135 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) Art. 2; Jan Komrek, European Constitutionalism and the European Arrest Warrant: In Search of the Limits of Contrapuntal Principles (2007) 44 Common Mkt. L. Rev. 9 at 9 -10. 136 Catherine Heard, The New European Extradition System - A Critical Review (2009) 25 No. 10 Int'l Enforcement L. Rep. 398. 137 Laker Airways v. Sabena, (1984) 731 F.2d 909; See Above 1.1.2. 138 L. Collins, Foreign Relations and the Judiciary (2002) 51 I.C.L.Q. 485 at 504; Lawrence Collins, Comity in Modern Private International Law in James Fawcett, ed., Reform and Development of Private International Law: Essays in Honour of Sir Peter North (Oxford: Oxford University Press, 2002).
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it operates in. 139 In the instant case the Respondent States comity obligations under the E U treaty compel her to cooperate with the Applicant State and provide assistance in ensuring Janes and Janets attendance and appearance before Applicant States courts. 3.2 ALTERNATIVELY, GENERAL PRINCIPLES OF INTERNATIONAL LAW REQUIRE THAT THE RESPONDENT STATE HAND OVER JANE AND JANET A State must investigate any allegation that there is a person in her territory who has committed an offence and, if the circumstances so warrant, ensure the persons presence for the purpose of extradition or prosecution. 140 This duty is rooted in the principles of state responsibility and starts from the assumption that when a crime is committed the injured state has a right to punish the perpetrators.141 It is universally recognized. 142 The principle is that an alleged offender should not find safe haven in the territory of any State.143 Extradition can be more advantageous in the sense that the territorial state may have better access to evidence.144 Kidnapping, abduction and stealing children are extraditable offences. 145 International child abduction is a federal crime punishable with up to three years imprisonment.146 Use of
139
Janet Walker, Foreign Public Law And The Colour Of Comity: What's The Difference Between Friends? (2003) 38 Can. Bus. L.J. 36 at 48. 140 ILC Report on aut dedere aut judicare, Amnesty International Publications, (2009); Marc Henzelin, Le Principe de lUniversalit en Droit Pnal International: Droit et Obligation pour les tats de Poursuivre et Juger selon le Principe de lUniversalit, (2000); M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty To Extradite Or Prosecute In International Law (1995) at 22-24; Ian Brownlie, Principles Of Public International Law 4th ed. (1990) at 315; M. Cherif Bassiouni, Foreword to Treaty Enforcement and International Cooperation in Criminal Matters, Rodrigo Yepes- Enrquez & Lisa Tabassi eds. (2002) at vii. 141 M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty To Extradite Or Prosecute In International Law (1995) at 38-39. 142 Official Records of the General Assembly, Fifty-ninth Session, Supplement No.10 (A/59/10) 362. 143 Ved P. Nanda, Bases for Refusing International Extradition Requests: Capital Punishment and Torture (2000) 23 Fordham Int'l L.J. 1369. 144 Alexander Orakhelashvili, The United Nations Convention Against Torture. A Commentary. Commentary on the Rome Statute of the International Criminal Court (Oxford University Press: 2009) (2009) 20 EJIL 457. 145 Ronald F. Roxburgh, ed. Oppenhiems International Law (New Jersey: The Lawbook Exchange, Ltd., 2005) vol. 1 at 509.
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BODY OF ARGUMENTS
embryo for any purpose other than that provided for by the embryo provider is punishable with imprisonment up to three, four or five years. 147 It is humbly submitted that Refusal to extradite along with failure to assume responsibility for trying suspects is an obvious abuse of power.148 4 ARGUENDO, THE RESPONDENT STATES COURTS CAN NOT ACCORD FAIR AND IMPARTIAL TRAIL All are equal before the law and are entitled without any discrimination to equal protection of the law. 149 However, courts of legal systems that oppose surrogacy contracts will either resort to their own mandatory rules prohibiting the practice or find it contrary to their public policy. 150 It is humbly submitted that in light of the Respondent States political and religious scene151 and her failure to arrest or bring criminal charges against Jane and Janet it is required that the Applicant State conduct these proceedings; as the Respondent State cannot realistically be expected to conduct these cases diligently. 152
146
International Parental Kidnapping Crime Act (1993) 18 U.S.C. 1204; United States v. Ahmed Amer, 110 F.3d at 873; Jacqueline D. Golub, The International Parental Kidnapping Crime Act Of 1993: The United States' Attempt To Get Our Children Back--How Is It Working? (1999) 24 Brooklyn J. Int'l L. 797. 147 John and Jane D. v. Regents of the University Of California, (2003) WL 21956362 (C.A.9) (Appellate Brief); Fischer, Misappropriation of Human Eggs And Embryos And The Tort Of Conversion: A Relational View, 32 Loy. L.A. L. Rev. 381, 420-423 (1999); West's Ann.Cal.Penal Code 367g. 148 Ian Brownlie, Principles of Public International Law 6th ed. (Oxford: Oxford University Press, 1979) at 314. 149 International Covenant on Civil and Political Rights, Art 26; Universal Declaration of Human Rights, Art 7; American Convention On Human Rights, 1969 Art. 8, 24; European Convention on Human Rights Art. 6; African Charter on Human And Peoples' Rights, 1981 Art. 3. 150 Anastasia Grammaticaki-Alexiou, Conflict Of Laws, Comparative Law And Civil Law: Artificial Reproduction Technologies and Conflict of Laws: An Initial Approach, 60 La. L. Rev. 1113. 151 Compromis 6. 152 Oral Pleadings of the United States, Question and Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. U.S.), Prelim. Obj., (Oct. 15, 1997) at 3.59, 3.61 available at http://www.icj-cij.org/icjwww/idocket/ilus/iluscr/ilus_icr9719.htm.
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PRAYERS
PRAYERS In light of the questions presented, arguments advanced and authorities cited the agent for the Applicant State most humbly and respectfully prays before this Honble Court, that it may be pleased to adjudge and declare: I. The Applicant States courts have jurisdiction and the Applicant States law is the applicable law to determine Roberts custody issue II. The Applicant States courts have jurisdiction and the Applicant States law is the applicable law to determine Emilys custody issue III. The Respondent State has an international obligation to hand over Jane and Janet
The Applicant State additionally prays that the Court may grant any provisional relief that it may deem fit. The Court may also make any such order as it may deem fit in terms of equity, justice and due conscience. And for this act of kindness the Applicant State shall as duty bound ever humbly pray. Respectfully submitted, ...... (Agents for the Applicant State)
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TEAM CODE: E

INTERNATIONAL COURT OF JUSTICE

THE REPUBLIC OF BOLITA (APPLICANT) V. THE REPUBLIC OF GARUNDI (RESPONDENT)

MEMORIAL FOR THE APPLICANT

1.1.2 1.2 1.2.1 1.2.2

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT

OBLIGATION TO HAND OVER JANE AND JANET?

MEMORIAL FOR THE APPLICANT

1.1.2 1.2 1.2.1 1.2.2

APPLICABLE LAW TO THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

AND ENFORCEMENT OF ORDERS OF EACH

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

APPLICANT STATES LAW

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

DO NOT INVALIDATE INTERNATIONAL TREATY

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

MEMORIAL FOR THE APPLICANT STATE

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