Team 002

IN THE INTERNATIONAL COURT OF JUSTICE

2019

The Case Concerning the Evacuation of a Foreigner

during an Outbreak of Malignant Influenza

The State of Armis

Applicant
v.
The State of Recho
Respondent

MEMORIAL FOR APPLICANT

 TABLE OF CONTENTS

CONTENT PAGE NO.

Cover Page ……………………….. 1

Table of Contents ……………………….. 2
Index of Authorities ……………………….. 3
Statement of Jurisdiction ……………………….. 4
Questions Presented ……………………….. 6
Statement of Facts ……………………….. 7
Summary of Pleadings ……………………….. 10
Pleadings:
 On Procedural Issue ……………………….. 13

 On Substantive Issues

o Breach of Treaties ……………………….. 14

o Breach of Customary Law ……………………….. 18

Conclusion and Prayer for Relief ……………………….. 25

2 of 25
 INDEX OF AUTHORITIES

Conventions and Other International Instruments Page No.

International Covenant on Civil and Political Rights (ICCPR) 14, 15
Convention on the Elimination of All Forms of Discrimination Against
16
Women (CEDAW)
Convention of the Rights of the Child (CRC) 17, 18
International Covenant on Economic, Social and Cultural Rights
20
(ICESCR)
Statute of International Court of Justice 4
United Nations (UN) Charter 4, 5
Compromis 4, 5
International Labor Organization (ILO) C156: Termination of
20
Employment Convention
Vienna Convention on the Law of Treaties 18
Universal Declaration on Human Rights (UDHR) 19, 20, 21, 23
ILO C158: Workers with Family Responsibilities Convention (WFRC) 17, 21, 23
International Covenant on the Protection of the Rights of All Migrant
22, 23
Workers and Members of their Families (ICPRAMW)
International Law Commission (ILC): Responsibility of States for
23, 24
Internationally Wrongful Acts
U.N. Documents and Other Reports
Center for Civil and Political Rights (CCPR) General Comment No. 27 14, 15
Committee on Economic, Social and Cultural Rights General Comment
16
No.18
Committee on the Rights of the Child General Comment No. 13 18
International Cases
Germany vs USA, adjudged on June 27, 2001 13
New Zealand vs France, adjudged on April 30, 1990 24
Journals and Articles
The UDHR in National and International Law by Hurst Hannum 19
WHO Report: Pandemic Influenza: An Evolving Challenge 22
Diplomatic Protection and Individual Rights: A Complementary
5, 13, 14
Approach by David Leys

3 of 25
 STATEMENT OF JURISDICTION

The present case concerns a legal dispute between the State of Armis and the State of Recho

involving the evacuation of a foreigner during an outbreak of a malignant influenza.

Under the ICJ Statute1, such Court shall be open to the state parties to its Statute.

Correlatively, the United Nations (UN) Charter2 considers all its members as ipso facto parties to

the ICJ Statute. Considering that both the States of Armis and Recho are existing members of the

UN3, it follows that both states have the capacity to appear and litigate this contentious case before

the ICJ.

Nevertheless, the jurisdiction of the ICJ must first be established. Pursuant to the ICJ

Statute4, the jurisdiction of such Court comprises all cases which the parties refer to it. Apparently,

both States unanimously consented to the submission of this dispute to the ICJ5.

As stated in the ICJ Statute, it has the duty to resolve legal disputes submitted before it in

accordance with the sources of international law enumerated under Article 38 thereof. Among such

sources6 are (a) international conventions, whether general or particular, establishing rules

expressly recognized by contesting states, and (b) international custom, as evidence of general

1
Article 35 (Par. 1), ICJ Statute
2
Article 93 (Par. 1), UN Charter
3
Paragraph 1, Compromis
4
Article 36 (Par. 1), supra note 1
5
Paragraph 11, supra note 3
6
Article 38 (Par. 1) (a)(b), supra note 1

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practice accepted as law, from which this Applicant resolved itself to be bound. Particularly, the

Applicant founded its succeeding arguments on the following conventions from which both States

are parties, the International Covenant on Civil and Political Rights (ICCPR), the Convention on

the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the

Rights of the Child (CRD), and on the applicable customary international laws.

As for the competency of the Applicant to institute this dispute in ICJ on behalf of Ms.

Shunzette, an Armis national, such was validly acquired in view of its exercise of the doctrine of

diplomatic protection against the State of Recho for the indirect injury it caused to the Applicant.7

However, concurrent with such exercise of diplomatic protection is the exhaustion of local

remedies in the domestic realm of the respondent-State.8 Considerably, Ms. Shunzette has fully

complied with this when she sought judicial relief from Recho Courts, from which an adversary

ruling has been rendered.9

In view of the foregoing, the ICJ is competent to entertain and decide on this dispute.

Consequently, the Applicant hereby recognizes the binding effect of the ICJ’s ruling and

accordingly undertakes to comply with the same pursuant to its oath as member of the UN10.

7
Paragraph 9, Compromis
8
Diplomatic Protection and Individual Rights: A Complementary Approach by David Leys,

January 2016 (Vol. 57) retrieved at http://www.harvardilj.org/wp-content/uploads/January-

2016_Vol-57_Leys1.pdf last 6 March 2019

9
Paragraph 8, supra note 7
10
Article 94 (Par. 1), UN Charter

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 QUESTIONS PRESENTED

The Applicant respectfully requests this Honorable Court to decide on:

1. Whether the State of Recho violated the treaties to which Armis and Recho are parties;
and

2. Whether the State of Recho breached any customary international law.

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 STATEMENT OF FACTS

The State of Armis and Recho are both members of the following treaties and conventions:

 International Covenant on Civil and Political Rights (ICCPR);

 Convention on the Elimination of All Forms of Discrimination against Women;

 Convention on the Rights of the Child; and

 Vienna Convention on Law of Treaties.

Geographically, the State of Recho borders the State of Megoose, while the State of Armis

does not border either of the two.

In March 2010, a malignant influenza emerged in Megoose. Since there were no enough

vaccines for its entire population, the Government of Megoose refrained all its inhabitants living

within a radius of 30 kilometers from its mostly affected area from ingressing in and egressing out

of such area. Meanwhile, the State of Recho is situated at a distance of 50 kilometers from the said

area.

Upon knowledge of this epidemic in Megoose and with consideration to the proximity of

Recho to such affected area with only a distance of 50 kilometers, the Government of Armis

mandated all its nationals sojourning in both States to immediately evacuate therefrom through its

arranged chartered flights. However, only 30% of Armis nationals heed with this instruction.

Among those evacuees are Ms. Shunzette and her 5-year old daughter.

It appears that prior to the influenza outbreak, Ms. Shunzette has been working as a

researcher in National Research Institute of Recho located at a distance of 60 kilometers from such

affected area.

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 The other co-workers of Ms. Shunzette who were likewise Armin nationals are all men and

opted to stay in Recho to continue their works despite the evacuation directives from the

Government of Armis. Further, these co-workers are living by themselves and apart from their

families, with the exception of Ms. Shunzette who was then currently staying with her daughter in

a rented place within the Institute’s premises.

When Armis lifted its order, Ms. Shunzette went back to Recho to continue her work.

However, she discovered that she was dismissed from employment and that her rental lodging was

cancelled. As provided in her 3-year contract, dismissal as punishment disentitles her to dismissal

payment and disqualifies her from reemployment.

Consequently, Ms. Shuzette brought a suit against the Government of Recho in a competent

district court of Recho. However, the court adversarially ruled against Ms. Shuzette and upheld

the validity of the punishment for failure to obtain prior permission as required in her employment

contract.

With that, Ms. Shunzette requested the Government of Armis to exercise its diplomatic

protection against the Government of Recho. The Government of Armis accepted such request and

sought the revocation of her dismissal, but the Government of Recho declined.

Nonetheless, the two countries engaged in further negotiations. The Armis claimed that by

punishing an Armis national, Recho in effect violated the international law, more particularly

based on the following reasons:

 Ms. Shunzette’s dismissal as punishment for her departure from Recho constitutes

a violation of the principle of freedom to leave any country;

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  Her right to work under safe conditions which all women enjoy, was injured when

she was dismissed for leaving Recho on account of the malignant influenza

outbreak;

 Had Ms. Shunzette opted to remain in Recho, the right of her 5-year old daughter

to the highest standard of protection against epidemics which all children enjoy,

would be injured;

 The employment contract assented by Ms. Shunzette was based on laws enacted

in consonance with the treaties to which Recho is a party. As proof thereto, Recho

never prevented nor discriminated anyone including Ms. Shunzette and her

daughter from leaving the said State.

However, the negotiations failed, prompting both States to elevate this dispute to the ICJ.

Accordingly, the State of Armis, as applicant of this case respectfully prays this Honorable ICJ to

declare that Recho breached (1) the treaties to which Armis and Recho are parties, as well as (2)

any customary international law pertinent to the malignant influenza outbreak.

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 SUMMARY OF PLEADINGS

1. On Procedural Issue

The State of Recho is competent to institute

this proceeding before ICJ

The prerequisites for Armis to exercise its diplomatic protection were all present.

First, there was a consented from Armis. Second, local remedies were fully exhausted.

Third, the cause of action is founded on Recho’s act or omission violative of its obligations

under the international law.

2. On Substantive Issues

a. Recho breached its treaty obligations

Recho violated the International Convention

on Civil and Political Rights (ICCPR)

An individual can depart from any country unless restricted. Here, no evidence, be it a

lawful order from the Court or a travel ban issued by the President, was adduced to prove

such restriction, hence she can exercise this right. Though, for sustaining the contention of

her employer, Recho in effect punishes her for utilizing such.

Recho violated the Convention on Elimination

of Discrimination against Women (CEDAW)

Influenza is inherently contagious and fatal. By providing no means to counter its

risks, Recho is presumed no longer conducive to work and safety. In addition, parents must

prioritize the health and well-being of their children since they are more susceptible to

infections. Having said that, Ms. Shunzette cannot be likened to her co-workers because

they were staying in Recho all by themselves. In sum, her evacuation is reasonable.

However, by denying her of the right to work, Ms. Shunzette may find difficulty in

satisfying the needs of her daughter and her right to self-development.

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 Recho violated the Convention on the Rights
of the Child (CRC)

Both were lawfully residing in Recho under a contract. Hence, Recho has

knowledge of the existence of such child within its territory. Yet, it ruled without giving

due course for the paramount interest of the such child had she stayed longer therein.

b. Recho breached customary international laws

Recho violated the Universal Declaration on

Human Rights (UDHR)

Th rights to leave any country and revert to one’s country, right to health and well-

being; right to work of her own volition and under safe working conditions, right against

unemployment, and right to full equality and impartial trial were also violated.

As stated, no health protective measures were taken by Recho, thus evacuation can

be had even sans a treaty, since Armis has a remote distance from Megoose and Recho,

and that it promptly furnished assistance to its citizens.

By categorically dismissing Ms. Shunzette without right to severance pay, Recho

denied her of the means to subsistence and was unjustly subjected to retribution for failure

to obey an implied order of forced labor in an unsuitable working condition.

Recho violated the International Labor Law

(ILO)

Workers are entitled to severance pay unless there is serious misconduct. Here, such

misconduct is wanting since family responsibility is not a dismissible ground. Also, she

cannot be sanctioned for fulfilling a state’s irresponsiveness. Hence, such pay is warranted

had reinstatement been ruled out as impracticable.

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 She was also deprived of her right to be notified before actual termination. Her

employer made no efforts for prior consultation or warning that her persistent absence may

lead to dismissal.

Recho violated the International Covenant on

the Protection of the Rights of All Migrant
Workers and Members of their Families
(ICPRAMW)

Recho failed to perform its obligation of providing migrant workers and their

families with sufficient and immediate medical care necessary for the preservation of their

life and health. With that, evacuation is the only feasible option, and this fact remains true

notwithstanding the absence of prior consent from her employer, considering the gravity

of the surrounding circumstances. Moreover, Armis is clearly empowered to command its

citizens outside its jurisdiction to revert at once in view of its inherent right of sovereignty.

This command constitutes a sufficient notice of urgency to Recho.

Recho violated the Responsibility of States for

Internationally Wrongful Acts

In the case of New Zealand vs. France, the Court ruled that any violation by a State

of any obligation, of whatever origin shall give rise to State responsibility, and

consequently to the duty of reparation. Since, as previously argued, Recho breached its

treaty and customary obligations, it follows that it performed international wrongful acts

restorable only by reparation.

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 PLEADINGS

1. On Procedural Issue

 The State of Recho is competent to institute this proceeding

In the case of Lagrand brothers11, the court has ruled that a State’s claim based on its

individual citizen’s right is properly within its jurisdiction by the principle of “Diplomatic

Protection” which is a recognized customary international law.

The exercise of Diplomatic Protection is however subject to three-fold requirements,

namely (1) only the State of nationality of the injured individual can utilize it against another

state, and (2) the individual must first exhaust all possibilities of domestic redress in the State

where the violation occurred, and (3) a rule of international law must have been violated.12

Nonetheless, the exercise of such right is subject to the discretion of the national state, that

is, the injured individual cannot force it to intervene. However, once the State invokes such right

at the international level, it can no longer be taken away either through a judicial act or voluntary

waiver of the individual.13 Under the theory of Meditated Damage, the effect of such invocation

will be the State by its own right, shall seek redress for the injury caused to its citizen by another

State. A violation of an individual’s rights amounts to an indirect violation of the rights of his

11
ICJ: Germany vs USA, adjudged on June 27, 2001 pp. 483
12
Diplomatic Protection and Individual Rights: A Complementary Approach by David Leys

(2015), pp. 6
13
Ibid., pp. 7

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 national state.14 It follows that it will be the State, on behalf the individual, who shall be pursuing

a claim for damages or relief against the erring State.15

By applying the above principle to this case, it can be observed that all three requirements

were satisfied. First, the State of Armis consented to the exercise of its diplomatic protection,

thus, it initiated this Application before ICJ on behalf of Ms. Shunzette whose rights were

impaired by Recho. Second, Ms. Shunzette has sought prior redress from Recho’s courts but

without success. Third, Armis’ cause of action is founded on the act or omission of Recho which

is violative of its obligations under the international law. With that, Armis can lawfully use its

right to diplomatic protection and institute this claim against Recho for the indirect injury it

sustained when the latter breached its international obligations.

2. On Substantive issues
a. RECHO BREACHED ITS TREATY OBLIGATIONS

 Recho violated an individual’s right to departure from any country

The ICCPR provides that everyone shall be free to leave any country, including his own.16

Such freedom cannot even be made conditioned on any specific purpose or on the period of time

an individual chooses to stay outside the country. 17 Nonetheless, it may be curtailed but only for

exceptional circumstances such as to protect national security, public order, or public health as

14
Diplomatic Protection and Individual Rights: A Complementary Approach by David Leys

(2015), pp. 8
15
Ibid., pp. 9
16
Article 12 (2), ICCPR
17
Subsection 8, Center for Civil and Political Rights (CCPR) General Comment No. 27: Article

12 (Freedom of Movement), 2 November 1999

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well as the rights and freedoms of others.18 However, for such restrictions to be permissible, the

conditions and legal norms upon which it is founded should be specified and be consistent with

the principles of necessity and proportionality that is, that such restrictions are deemed warranted

by the foregoing exceptional circumstances and that its measures constitute the least intrusive

means among those which might similarly achieved the desired result or the protected interest.

Moreover, these restrictions must likewise conform to the fundamental principles of equality and

non-discrimination. Otherwise, it will be considered as a clear violation of the rights guaranteed

by this treaty.19

In this case, there is no evidence which would show that Recho placed a movement

restriction over all its inhabitants, nor is there proof that it specifically limited Ms. Shunzette’s

right by a lawful order from its court for injuring Recho’s national security or others’ freedom and

rights, nor for being a threat to public safety or health. Thus, her right was never restricted, such

that she can validly utilize this for whatever purpose or period, more so if such was justifiable, say

to protect her from any possible impairment in her health security from which she was exposed

considering the proximity of Recho from Megoose. Hence, Recho’s act of dismissing Ms.

Shunzette is an indirect violation of this right under ICCPR.

18
Article 12 (3), ICCPR
19
Subsection 18, Center for Civil and Political Rights (CCPR) General Comment No. 27: Article

12 (Freedom of Movement), 2 November 1999

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  Recho breached the right to work and to favorable conditions of work

The CEDAW mandates its member states to take all appropriate measures to eliminate

discrimination against women by any person, organization or enterprise,20 particularly in the field

of employment. Among its several guaranteed rights is the right of women to work,21 which is

essential for realizing other human rights such as the right to survival as well as development and

recognition within the community. Hence this right form an inseparable and inherent part of human

dignity.22 Another would be the rights to protection of health and to safety in working conditions,23

and the equality of rights between men and women particularly on their rights and responsibilities

as parents on matters relating to their children whose interests are paramount in all cases.24

Unfortunately, Recho failed to protect Ms. Shunzette from employment discrimination.

First, she cannot be placed in equal footing with her other co-workers who remained in

Recho all by themselves. As a parent to a 5-year old child then living within her custody, she has

a primordial responsibility to act for her best interest, that is, to protect the former from the

possibility of being infected, which Recho failed provide. Second, Recho neglected in its duty of

providing her with safe working conditions when it never initiated protective measures within its

territory, prompting her to leave therefrom. However, her untimely dismissal despite the absence

20
Article 2 (e), CEDAW
21
Article 11 (1) (a), CEDAW
22
Subsection1, Committee on Economic, Social and Cultural Rights General Comment no.18:

Article 6 (Right to Work), 6 February 2006

23
Article 11 (1) (f), ibid.
24
Article 16 (1) (d), ibid.

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of due process and valid grounds connected with the operational requirements of her position25

coupled with an inclusion in her employment contract of a prohibitory clause on reemployment

practically deprived her of the capacity to supply the financial needs of her child and impaired her

right to self-determination, which when taken together, amounts to a denial of her right to work.

For all these reasons, Recho’s act of dismissing Ms. Shunzette is violative of these rights

under CEDAW.

 Recho violated the right of child to enjoy the highest standard of protection and care

and right to survival

The CRC provides that in all actions concerning children, whether undertaken by public or

private social welfare institutions, courts of law, administrative authorities or legislative bodies,

the best interests of the child shall be a primary consideration. 26 Member states must ensure a

child’s protection and care as is necessary for his or her well-being, taking into account the rights

and duties of his or her parents and guardians, and to this end, shall take all appropriate legislative

and administrative measures.27 Hence, States parties have a positive and active obligation to

support and assist parents to secure, within their abilities and financial capacities and with respect

to the evolving capacities of the child, the living conditions necessary for the his optimal

development. It is likewise mandated to ensure that all persons responsible for the prevention of,

25
Article 4, ILO Convention No. 158: Termination of Employment Convention, 1982
26
Article 3 (1), CRC
27
Article 3 (2), ibid.

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protection from, and reaction to violence and in the justice systems are addressing the needs and

respecting the rights of children.28

In this case, Recho is well-aware that Ms. Shunzette, under a 3-year employment contract,

was accompanied by her 5-year old daughter. It follows that as a state party to the CRC, it is

imperative for Recho to take primary consideration to the best interest of said child, that is, to

ensure that the child shall be afforded with all safety measures necessary for her survival 29 from

the influenza outbreak. However, such safety measure was not given by Recho as such, it would

be unreasonable and oppressive on its part to dismiss Ms. Shunzette from her work when in fact

she is only performing Recho's unfulfilled state obligations.

b. RECHO BREACHED ITS CUSTOMARY OBLIGATIONS

Under the Vienna Convention, a non-party to a treaty containing a particular norm can still

be bound by such norm through international custom.30 Among these customary international laws

are found in the UDHR, ILO, ICPRAMW, and Responsibility of States for Internationally

Wrongful Acts, since these contains fundamental human rights and duties that are matters of

international concern. Among those rights which were not observed by Recho are as follows:

28
Subsection 5, Paragraph 3, Committee on the Rights of the Child General Comment No. 13:

The right of the Child to freedom from all forms of Violence, April 18, 2011
29
Article 6 (2), CRC
30
Article 38, Vienna Convention on the Law of Treaties Signed at Vienna, May 23, 1969

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  Recho violated the basic human right of leaving any country and returning to one’s
country

The UDHR, which serves as the primary source of global human rights standards

recognized by states throughout the world,31 considers as fundamental, the right not only to leave

any country but also to return to one’s country.32 It further provides that in the exercise of such

right among others, everyone shall be subject only to such limitations as are determined by law

solely for the purpose of securing due recognition and respect for the rights and freedoms of others

and of meeting the just requirements of morality, public order and the general welfare in a

democratic society. 33

The preceding provisions infer that as a rule, every person has a right to depart from one

country and revert to his own country sans a treaty, subject however to the limitations provided by

law, or the interest of public and morality. Hence, even in the absence of a treaty, Ms. Shunzette

can validly exercise these rights for there was no restriction placed therein. Moreover, even though

Recho never prevented Ms. Shunzette from departing, its acquiescence to her subsequent dismissal

as if amounts to a punishment for exercising these rights.

31
The UDHR in National and International Law by Hurst Hannum (Vol. 3 No. 2) accessed at

https://cdn2.sph.harvard.edu/wp-content/uploads/sites/125/2014/04/16-Hannum.pdf last 4 March

2019, pp. 145

32
Article 13 (2), UDHR
33
Article 29 (2), ibid.

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  Recho violated the right to work, to free choice of employment, to just and favorable
conditions of work and to protection against unemployment

The UDHR also considers these34 as basic human rights that must be observed by states.

As a matter of fact, these are likewise recognized by ICESCR as necessary to ensure the full

enjoyment of all economic, social and cultural rights. The ICESCR provides that the right to work

includes as well the right of every person to an opportunity to gain his living by the work which

he freely chooses or accepts as well as the right to take any appropriate steps to safeguard such

right.35 On the other hand, the right to just and favorable conditions of work is best illustrated

through a safe and healthy working conditions.

However, Recho did not respond to these outbreaks which should have ranged from

disseminating vaccines or inspecting affected persons and areas for quarantine purposes to issuing

a travel ban similar with Megoose. With this, any area or location in Recho is presumed as no

longer safe or conducive for continued employment, which is a reasonable ground for Ms.

Shunzette to evacuate therefrom.

The dismissal of Ms. Shunzette is thus contrary to a person’s fundamental right to work.

Firstly, her absence from work is, aside from lack of due process, not premeditated or due to causes

that are beyond her control. Secondly, under the Workers with Family Responsibilities Convention

(WFRC), family responsibilities, particularly over her 5-year old child do not constitute as a valid

ground for termination from employment.36

34
Article 23 (1), UDHR
35
Article 6, ICESCR
36
Article 8, ILO: WFRC, 1981 (No. 156)

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 Also, it bears stressing that a government’s prerogative over its citizens’ rights is placed in

a higher pillar than that of contracts signed between the parties. Nobody should be compelled to

work, much more forced to work in an environment whose safety is questionable because for one,

it is contrary to one’s right to freely choose his employment 37 and that it amounts to involuntary

servitude.38 In addition, it failed to protect the right of Ms. Shunzette against unemployment when

it heavily relied on the employment contract which includes a prohibition on the release of

dismissal pay, a clause which is contrary to the rights enshrined in ILO. Under the ILO, the term

“termination” pertains to those based on the initiative of the employer.39 Workers who were

terminated are entitled to severance or separation pay, subject however to denial should there be

serious misconduct.40 As earlier stated, family responsibilities are not a dismissible ground, as such

the requirement of serious misconduct is found wanting, hence Ms. Shunzette is entitled to

dismissal pay had reinstatement been ruled out as no longer practicable.

 Recho violated the right to health as well as the right of motherhood and childhood
to special care and assistance

As stated in the UDHR, all persons are entitled to the right to a standard of living adequate

for health and well-being of himself and of his family, and the right of motherhood and childhood

to special care and assistance.41

37
Article 23 (1), UDHR
38
Article 4, ibid.
39
Article 3, ILO: Termination of Employment Convention, 1982 (No. 158)
40
Article 12 (1) and (3), ibid.
41
Article 25 (2), UDHR

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 Based on the World Health Organization42, despite the emergence of vaccinations and risk

preparedness, an influenza pandemic which outbreaks remain unpredictable, still needs global

surveillance and response because it is communicable even beyond geographical borders and

evidently results to higher number of deaths.

Hence, it is imperative for Recho to respond to the threat of influenza. As a matter of fact,

under ICPRAMW, migrant workers and their families have the right to receive any medical care

that is urgently required for the preservation of their life or avoidance of irreparable harm to their

health.43 For failure to do so, Recho is in effect depriving its inhabitants including Ms. Shunzette

and her daughter of their right to health and well-being. As such, it is no longer feasible for Ms.

Shunzette to stay in such State without necessarily impairing her health and security. It is thus

reasonable for her to seek evacuation and this fact remains true notwithstanding the absence of

prior consent from her employer. The reason is that such absence must be weighed with flexibility

in view of the circumstances surrounding such departure. It must be noted that her departure was

in conformity with a directive from her Government of Armis, which is already considered as

sufficient notice to Recho of the its urgency of compliance. Clearly, Armis is empowered to issue

such directive in the exercise of its inherent right of sovereignty and jurisdiction over all its

nationals wherever they may be.

42
World Health Organization - Pandemic Influenza: An Evolving Challenge retrieved at

https://www.who.int/influenza/pandemic-influenza-an-evolving-challenge/en/ last March 5, 2019

43
Article 28, ICPRAMW

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  Recho violated the right to due process

According to ILO, a worker shall not be terminated for reasons related to the worker’s

conduct or performance without giving him an opportunity to defend himself against such
44
allegations. It further provides that a worker whose employment is to be terminated shall be

entitled to a reasonable period of notice or compensation in lieu thereof unless he is guilty of

serious misconduct of such a nature that would be unreasonable to require the employer to continue

his employment during such required period.45

In this case, Ms. Shunzette upon return to work, was only informed that she was already

dismissed. Her employer did not even give her the opportunity to be heard prior to rendering such

decision of dismissal. Thus, when Recho categorically denied her complaint and appeal by just

relying on the employment contract and contention of her employer without consideration to lack

of due process as well as the reasonableness of her departure by a valid order from Armis, it failed

to afford the latter with the same right it affords to its nationals, that is,46 the right to full equality

and public hearing by an independent and impartial tribunal.47

 Recho violated its state responsibility over aliens in its jurisdiction

The International Law Commission48 states that there is an internationally wrongful act of

a state when conduct consisting of an action or omission (1) is attributable to the State under

44
Article 7, ILO: Termination of Employment Convention, 1982 (No. 158)
45
Article 11, ibid.
46
Article 18 (1), ICPRAMW
47
Article 10, UDHR
48
Article 2, Responsibility of States for Internationally Wrongful Acts, 2001

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international law and (2) constitutes a breach of an international obligation of the same. In the

arbitration case of New Zealand and France concerning the interpretation and application of their

agreement on Rainbow Warrior Affair, the Court ruled that any violation by a State of any

obligation, of whatever origin, be it arising from either customary international law, treaty, or

general principles of international law, shall give rise to State responsibility, and consequently to

the duty of reparation49 which may be in the form of restitution, compensation or both.50

In this case, Recho failed to satisfy its treaty obligations of protecting Ms. Shunzette’s right

to departure, to work and under safety conditions, and her daughter’s right to well-being, as well

as customary obligations of affording her due process and full equality. Armis is therefore entitled

to claim reparation for the international wrongful act of Recho over its citizen.

49
New Zealand vs France: United Nations Reports on International Arbitral Awards decided on
April 30, 1990 (Volume XX, pp. 215-284)
50
Article 34, Responsibility of States for Internationally Wrongful Acts, 2001

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 CONCLUSION AND PRAYER FOR RELIEF

Overall, the act of Recho in upholding the dismissal of Ms. Shunzette without undertaking

thorough regard to her rights, be it expressly enshrined in the preceding treaties or considered as a

fundamental right guaranteed by our customary international law, constitutes a palpable disregard

of its duties and responsibilities under the international law, necessitating reparation for the injury

it has caused to her as an Armis national.

Therefore, the State of Armis, the Applicant herein respectfully requests that this Honorable

Court:

1. Declare that the State of Recho breached the treaties to which both states are member

parties, and

2. Declare that the State of Recho breached the customary international law.

Respectfully submitted,

AGENTS OF APPLICANT

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