46_A

THE INTERNATIONAL COURT OF JUSTICE

2023

THE CONFEDERATION OF MIRELVA

(A PPL I C ANT )

V.

THE DEMOCRATIC STATE OF LUMINA

(R E SPONDE NT )
 Memorial for the Applicant

TABLE OF CONTENTS

STATEMENT OF FACTS.....................................................................................................10

ISSUES RAISED...................................................................................................................11

SUMMARY OF ARGUMENTS............................................................................................12

ARGUMENTS ADVANCED................................................................................................14

I. THE ARREST AND DETENTION OF DR NOVAK VIOLATED HIS RIGHT TO

FREEDOM OF EXPRESSION UNDER THE INTERNATIONAL LAW...........................14

A. The arrest and detention are a violation of his rights under ICCPR and UDHRC........14

1) The Speech did not harm national security or public order.......................................14

B. The restriction is not provided by law and is not necessary..........................................15

1) The restriction is not provided by law...................................................................15

2) The detention was not necessary vis a vis the threat posed by Dr. Novak............15

i. No benefit was accrued by restricting his speech and hence, the action is
disproportional..............................................................................................................16

ii. The detention is unreasonable as no threat was posed by Dr. Novak...................16

iii. Arrest and detention are not the least restrictive means available with Lumina. .16

C. Lumina’s actions violated the Customary International Law........................................17

II. LUMINA’S ECONOMIC SANCTIONS VIOLATE THE RIGHT TO SELF-

DETERMINATION AND SOVEREIGNTY........................................................................18

A. Lumina’s unilateral sanctions violated the principle of non-intervention.....................18

1) Lumina’s sanctions affected Mirelva’s domaine reserve..........................................19

2) The objective behind the economic sanctions is illegitimate....................................19

i. Arguendo, the object is legitimate, Lumina has abused its rights.............................20

B. Unilateral economic sanctions are unlawful under international law............................20

1) The unilateral nature of the sanctions is not in accordance with the UN Charter.....20

2) Lumina’s sanctions adversely affected its obligations for the protection of human
rights.................................................................................................................................21

i. Sanctions violated ICCPR Article 6 and 12...........................................................21

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 Memorial for the Applicant

C. Lumina cannot justify its conduct..................................................................................22

1) Defense of ‘necessity’ cannot be invoked.................................................................22

i. Lumina faced no peril and its measures were not the ‘only’ way.........................23

ii. Mirelva’s essential interests were impaired by Lumina’s sanctions.....................23

2) In any case, Lumina lacked the legal authority to punish Mirelva with
countermeasures................................................................................................................23

III. DENIAL OF NATIONALITY LED TO VIOLATION OF LUMINA’S

OBLIGATIONS.....................................................................................................................24

A. Lumina violated its obligation arising out of its unilateral act......................................24

1) The unilateral act intended to create binding obligations..........................................24

i. The content and circumstances imply the intention to be legally bound...............24

ii. Lumina’s after-conduct shows its consent to the above interpretation.................25

iii. Performance of obligations is required in good faith............................................25

B. Lumina’s conduct is inconsistent with the international treaties...................................26

1) Enforcing the declaration is consistent with the Customary International Law........26

2) Lumina is bound by its duty to avoid statelessness...................................................27

i. Lumina’s actions left the migrants stateless..........................................................27

3) Lumina has violated the obligations under ICCPR...................................................28

IV. LUMINA SHOULD COMPENSATE MIRELVA.......................................................29

A. The act of imposing economic sanctions on Mirelva is an internationally wrongful act

29

1) The act is attributable to the State under international law.......................................29

2) The economic sanctions breach the international obligations...................................29

3) The damage caused was financially assessable.........................................................30

4) There is a causal link between the damage caused and the internationally wrongful
act. 30

B. Compensation is a norm under Customary International Law......................................31

PRAYER OF RELIEF............................................................................................................32
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 Memorial for the Applicant

INDEX OF ABBREVIATIONS

Abbreviation Term

ARSIWA Articles on the Responsibility of States for Internationally Wrongful Acts

Art./Arts. Article/Articles

CIL Customary International Law

CPs Contracting Parties

CCPR Centre For Civil and Political Rights

GDP Gross Domestic Product

Govt. Government

HRC Human Rights Commission

ICCPR International Covenant on Civil & Political Rights

ICESCR International Covenant on Economic, Social & Cultural Rights

ICJ International Court of Justice

IHL International Human Rights Law

ILC International Law Commission

Intl. International

IPC Indian Penal Code

OAU Organization of African Unity

ORI Oceanic Resilience Initiative

PCIJ Permanent Court of International Justice

Res. Resolution

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 Memorial for the Applicant

RSIWA Responsibility of the State for internationally wrongful acts

UDHR Universal Declaration of Human Rights

UN Charter United Nations Charter

UNGA United Nations General Assembly

UNTS United Nations Treaty Series

VCLT Vienna Convention on the Law of Treaties

Vol. Volume

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 Memorial for the Applicant

INDEX OF AUTHORITIES

International Cases

Advisory opinion Concerning the Status of Eastern Carelia [1923] P.C.LJ., ser. B, No. 5.....16

Case concerning the Temple of Preah Vihear (Cambodia v. Thailand),I.C. J. Reports 1962, p.
6............................................................................................................................................16

Coleman v Australia, HRC, UN Doc CCPR/C/87/D/1157/2003 (10 August 2006).................5

East Timor (Portugal v. Australia), Judgment, I. C.J. Reports 1995, p. 90.......................10, 13

Factory at Chorzow (Germany v. Poland), [1928] ICGJ 255 (PCIJ 1928).............................23

Frontier Dispute, Burkina Faso v Mali, [1986] ICJ Rep 554...................................................17

GabCikovo-Nagymaros Project (HungarylSlovakia), Judgment, 1. C. J. Reports 1997, p. 7. 12

German Interests in Polish Upper Silesia (1926) PCIJ Ser A No 7.........................................12

Honduras v. Nicaragua, [1960] I.C.J. 192................................................................................18

Inter-American Court of Human Rights, Proposed Amendments to the Naturalization

Provision of the Political Constitution of Costa Rica, Advisory Opinion OC-4/84 of 19
January 1984, Series A No. 4...............................................................................................21

Island of Palmas Case (U.S./Netherlands), 2 RIAA 829 PCA (1928).....................................10

Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14
(June 27)...............................................................................................................................10

Nationality Decrees Issued in Tunis and Morocco (U.K. v. France), Advisory Opinion No. 4,
1923 P.C.I.J (ser. B) No. 4............................................................................................passim

Nottebohm Case (Liechtenstein v. Guatemala) [1955] ICJ 1............................................17, 19

Nuclear Tests (Australia v. France), 1974 I.C.J. 58.................................................................16

Nystrom v. Australia, Human Rights Committee, CCPR/C/102/D/1557/2007.......................20

Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, I. C. J.

Reports 2003, p. 161.............................................................................................................15

Primo Jose Essono Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990 , UN Human

Rights Committee (HRC), 10 August 1994...........................................................................5

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 Memorial for the Applicant

Stewart v. Canada, Human Rights Committee, CCPR/C/58/D/538/1993...............................20

Velichkin v Belarus, Merits, UN Doc CCPR/C/85/D/1022/2001..............................................5

Prominent Writings/ Commentaries

Crawford J, The International Law Commission’s Articles on State Responsibility:

Introduction, Text and Commentaries (Cambridge University Press 2007)..................22, 23

Malcolm Shaw, International Law (9th Edition) (Cambridge University Press 2021)............12

Rudall J, “Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v.
Nicaragua)” (2018) 112 American Journal of International Law 288.................................23

Taylor, P. (2020). A Commentary on the International Covenant on Civil and Political Rights
..............................................................................................................................................10

International Treatises

1961 Convention on Statelessness...........................................................................................19

Convention Relating to the Status of Refugees, 1951,189 UNTS 137....................................19

First Geneva Convention, Article 51 (adopted on 12th August 1949)......................................23

Friendly Relations Declaration (1970).....................................................................................10

United Nations Charter 1945...................................................................................................10

Universal Declaration of Human Rights, 1948, U.N. Doc. A/810.....................................14, 20

International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171......................14

Vienna Convention on the Law of Treaties (1969)..................................................................17

Journal Articles and Books

Alexandra Hofer, The Developed/Developing Divide on Unilateral Coercive Measures:

Legitimate Enforcement or Illegitimate Intervention? 16(2) CHINESE J. INT. LAW 175.....13

Antonios Tzanakopoulos, The Right to be Free from Economic Coercion, 4 CAM. J. INT’L.
AND COMP. L. 616, 619-20 (2015).......................................................................................11

Byers, “Abuse of Rights” (2002) 47 McGill LJ 389, 411; Kiss, “Abuse of Rights” (2006)
Max Planck Encyclopaedia of PIL, [5]................................................................................12

Crawford J, “The ILC’s Articles on Responsibility of States for Internationally Wrongful

Acts: A Retrospect” (2002) 96 American Journal of International Law 874.......................22
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Desch T, “The Second Protocol to the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict” (1999) 2 Yearbook of International Humanitarian
Law 63..................................................................................................................................23

Françoise Bouchet-Saulnier, ‘The Practical Guide to Humanitarian Law’ (Doctors without

borders :The Practical Guide to Humanitarian Law), 2013..................................................6

Garner, James W. “The International Binding Force of Unilateral Oral Declarations.” The
American Journal of International Law, vol. 27, no. 3, 1933..............................................16

German Settlers in Poland.” (1933) 2 Annual Digest of Public International Law Cases 71..22

Hina Majid, ‘Protecting the Right to Have Rights: The Case of Section 56 of the
Immigration, Asylum and Nationality Act 2006’.................................................................20

Ian Brownlie, Principles of Public International Law, OUP (2008)..................................11, 20

Julia Schmidt, The Legality of Unilateral Extra-territorial Sanctions under International

Law, 27(1) J. CONFLICT AND SECURITY L., 53.....................................................................13

Katja S. Ziegler, Domaine Réservé, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC

INTERNATIONAL LAW (Rudiger Wolfrum ed., 2012............................................................11

Kirgis, Frederic & Sands, Philippe & Klein, Pierre, "Bowett's Law of International
Institutions," The American Journal of International Law 96, 741 (2002)..........................18

Lori F. Damrosch, The Legitimacy of Economic Sanctions as Countermeasures for Wrongful

Acts, 37. BERKELEY J. INT'L L. 249 (2019)....................................................................14

M. R. Somers, Genealogies of Citizenship: Markets, Statelessness, and the Right to Have

Rights (Cambridge University Press, 2008).........................................................................20

MacGibbon, "Estoppel in International Law," 7 INT'L & COMP. L.Q. 469 (1958)..............18

Marshall Brown P, “Costa Rica v. Nicaragua” (1917) 11 American Journal of International

Law 156................................................................................................................................22

P. Terry, ‘Letter to the Journal Unilateral Economic Sanctions and Their Extraterritorial
Impact: One Foreign Policy For All?’, 18(2) CHINESE J. INT. LAW 425............................10

P. Weis, Nationality and Statelessness in International Law, 2nd edn (Dordrecht: Kluwer
Academic Publishers Group, 1979), 162..............................................................................20

R. Bernstein, Hannah Arendt and the Jewish Question (Cambridge, MA: MIT Press, 1996) 20
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 Memorial for the Applicant

Robert A. Friedlander, "The Foundations of International Criminal Law: A Present-Day

Inquiry" (1983).....................................................................................................................18

Rubin, Alfred P. “The International Legal Effects of Unilateral Declarations.” The American
Journal of International Law, vol. 71, no. 1, 1977,.............................................................18

'The Effect of Unilateral State Acts in International Law' (1969) 2 NYU J Int'l L & Pol 333 17

United Nations Resolutions

Declaration on Principles of International Law Concerning Friendly Relations and

Cooperation Among States in Accordance with the Charter of the United Nations, G.A.
Res. 2625, Art. 3(1), U.N. Doc. A/RES/25/2625 (Oct. 24, 1970)........................................10

Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of Their Independence and Sovereignty," General Assembly resolution
2131 (XX) , 1965,.................................................................................................................12

G.A. Res 68/200 (Dec. 20, 2013).............................................................................................13

G.A. Res. 2625 XXV (Oct. 24, 1970)......................................................................................10

G.A. Res. 52/119, U.N. Doc. S/RES/52/119 (1997)................................................................10

G.A. Res. 58/189, U.N. Doc. S/RES/58/189 (2003)................................................................10

G.A. Res. 70/151, (Dec. 17, 2015)...........................................................................................13

G.A. Res. 70/185 (Dec. 22, 2015)............................................................................................13

Human Rights Council resolution 10/13, Human rights and arbitrary deprivation of
nationality, 26 March 2009...................................................................................................19

Report of the Secretary-General to the General Assembly, ‘Human rights and arbitrary
deprivation of nationality’, A/HRC/13/34 (14 December 2009)..........................................19

S.C. Res. 1271, U.N. Doc. S/RES/1271 (1999).......................................................................10

United Nations Documents

Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC at
its 53rd Sess., annexed to G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (2001)......................13

Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/1997/8...................14

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 Memorial for the Applicant

Draft Articles on Responsibility of States for Internationally Wrongful Act with

Commentaries, adopted by the ILC at its 53rd Sess., U.N. Doc. A/56/10 (2001),..............16

Draft Declaration on Rights and Duties of States 1949, A/RES/375.......................................13

Hum. Rts. Comm, 67th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.9, General Comment 27
(1999)...................................................................................................................................14

Hum. Rts. Council, U.N. Doc. A/HRC/RES/34/13.................................................................10

International Law Commission, ‘Articles on Nationality of Natural Persons in Relation to the

Succession of States (With Commentaries)’, Supplement No. 10 (A/54/10) (3 April 1999).
..............................................................................................................................................19

Special Rapporteur, Fifth Report on Unilateral Acts of States, Int’l Law Comm’n, para. 51,
U.N. Doc. A/CN.4/525 (Apr. 4, 2002).................................................................................16

U.N. Doc. A/61/10 (2006)........................................................................................................16

U.N. Doc. A/CN.4/557.............................................................................................................18

UN Conference on the Elimination or Reduction of Future Statelessness, Resolutions, 29

August 1961, A/CONF.9/14/Add.1, Res I...........................................................................20

UN General Assembly, Report of the International Law Commission, 23 July 1999, A/54/10
..............................................................................................................................................22

UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of
opinion and expression, 12 September 2011, CCPR/C/GC/34..............................................5

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 Memorial for the Applicant

STATEMENT OF FACTS

Mirelva is a collective of small nations, having economic reliance on fishing and maritime
resources. These nations are united by a join effort to address climate change and promote
sustainable development.

Lumina is a modern constitutional monarchy emerging as a technological superpower. It has

a strong military presence globally as it allocates a big portion of its GDPP to defense
expenditure.

In an international conference organized on 22nd April, 2015, by Mooting Climate Change, a

prominent scientist from Lumina, Dr. Elara Novak, expressed his concern regarding
vulnerability of Mirelvan nations to climate change impacts. He also called for international
cooperation. In response to this, both the states collaborated to establish Ocean Resilience
Initiative, which aimed at promoting sustainable development in the Mirelvan nations
through technological and financial assistance from Lumina. It led to enhanced financial
burden of Rs 1000 Crore annually on Lumina.

On June 20th, 2020, 1000 people of Mirelvan nations travelled to Lumina to permanently
reside there. The next day, President of Lumina, Mr. Justin Lubo, shared a message on his
social media account which said, “To those fleeing persecution, terror & war, Luminians will
welcome you, regardless of your faith. Diversity is our strength #WelcomeToLumina”.

The International Mirelvan Society, based out of Geneva, published a story mentioned the
health situation in refugee camps due to increased risk of COVID-19 infection. On July 16 th,
2023, Amina Kailani, in run to her Presidential speech denounced the expenditure occurring
on the nationals of Mirelva and prioritized Lumina’s security. It was supported by Luminians.
She got elected as the President of Lumina and imposed economic sanctions on Mirelva
which caused harm to Mirelvan economy.

On July 25th, 2023, an appeal was made to Mirelva to repatriate its nationals which was met
with a refusal. Following this, Dr. Novak expressed his apprehensions regarding the
migrants’ situation and called for global collaboration which led to his arrest.

On 3rd August, diplomats from both states tried to negotiate for the release of Dr. Novak but
no agreement was reached. Failing to reach a consensus, Mirelva filed an Application with
the Registry of the International Court of Justice and instituted proceedings against Lumina.

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Memorial for the Applicant

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 Memorial for the Applicant

ISSUES RAISED

The following questions are presented before the Hon’ble Court for its consideration:

I. Whether the arrest and detention of Dr. Novak violate her right to political expression
under international law?
II. Whether Lumina’s imposition of economic sanctions constitute a violation of the
Mirelvan Nations’ sovereignty and their right to self-determination?
III. Whether the denial of nationality to the people of Mirelva nationals is a breach of
Lumina’s obligations?
IV. Whether the Government of Lumina should compensate to the Confederation of
Mierelva?

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 Memorial for the Applicant

SUMMARY OF ARGUMENTS

The arrest and detention of Dr. Novak is a violation of his right to freedom of political
expression as it violated Article 19 of ICCPR. Freedom of expression can only be restricted
in exceptional circumstances under paragraph 3 of ICCPR. It could be restricted if his speech
harmed the rights or reputation of others. His speech was an attempt to further the rights of
Mirelvan Nationals. The speech did not harm national security, public law etc. since the
speech had no impact on the peace and general security of the state of Lumina and its
nationals. Further, the detention did not fulfil the condition of being lawful as the law in
question was unreasonable and unclear. The detention was also disproportionate to the
possible threat posed by Dr. Novak if any. It also did not fulfil the standard of least restrictive
means as there were alternatives like imposition of fine available to deter Dr. Novak.

II

Lumina has no right to impose economic sanctions unilaterally as it was neither authorised by
UNSC nor did it react in self-defence which can be exercised in response to armed attack
only. Even in CIL, unilateral sanctions have not been established. Lumina has violated right
to self-determination and sovereignty of Mirelva as Lumina’s economic measures coerced the
free choices of Mirelva and thus interfered in its domaine reserve. Sanctions devastated
Mirelvan economy and heavily violated its right to freely pursue its economic development.
Also, the sanctions had an illegitimate motive of influencing Mirelvan decision regarding
their migrants’ return. Arguendo, the court recognises Lumina’s right to impose unilateral
economic sanctions, Lumina has abused its right and harmed Mirelva through coercion in the
exercise of its right. Lumina’s actions cannot be justified under the exception of ‘state of
necessity’ which is recognised under CIL. First, mere apprehension of long-term threat to
security does not form ‘grave’ and ‘imminent’ peril. Second, economic sanctions cannot be
the only way to prevent the long-term threat due to the presence of other alternatives. Third,
amidst climate crisis, these sanctions brought havoc in Mirelva, threatening civilian life and
thus, impairing their essential interests, which cannot be outweighed by Lumina’s
contemplated security reasons.

III

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 Memorial for the Applicant

Lumina has violated its obligations by denying nationality to Mirelvans. First, Lumina
expressed its intention to be legally bound to grant nationality to Mirelvans by its unilateral
statement shared by former President Justin Lubo. The content when read in the background
of the close relations shared by both states supports this view. Additionally, Lumina consent
to the presence of Mirelvans on its land shows consent to the intention expressed. Second,
Lumina is bound to perform its obligations under ‘good faith’ for international cooperation
and mutual trust. Third, failing to naturalise the migrants after 3 years long period, Lumina
violated its duty under the ‘refugee convention’. Lumina’s actions rendered them stateless
leading to human rights’ violations.

IV

The government of Lumina should compensate the Confederation of Mirelva as it violated

Article 36 of ILC which obligates the states to compensate for the wrong done by them. The
act of imposing economic sanctions on Mirelva was an economically wrongful act as it was
attributable to the state since it was the state authorities who called for such sanctions.
Further, there was a breach of internal obligation as unilateral sanctions have been considered
against Human Rights obligations. The confederation of Mirelva suffered significant damage
and such damage has a direct causal link with the unilateral economic sanctions that were
imposed by the State of Lumina. Further, granting compensation is a norm under customary
and has been granted by the ICJ in quite a few instances whereby the above stated conditions
were fulfilled.

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 Memorial for the Applicant

ARGUMENTS ADVANCED

I. THE ARREST AND DETENTION OF DR NOVAK VIOLATED HIS RIGHT TO

FREEDOM OF EXPRESSION UNDER THE INTERNATIONAL LAW

1. Every individual has the right to freedom of expression including freedom to impart
information and ideas of all kinds.1 The harassment, intimidation, or stigmatization of a
person, including arrest, detention, trial, or imprisonment for reasons of the opinions they
may hold, constitutes a violation of article 19.2 Dr. Novak’s right has been violated as (1)
he was lawfully acting under Article 19 of ICCPR, (2) his speech does not satisfy the
conditions for lawful restrictions.

1) THE ARREST AND DETENTION ARE A VIOLATION OF HIS RIGHTS UNDER ICCPR AND

UDHRC

2. States must guarantee that every individual can freely express their ideas irrespective of
frontiers.3 It includes commentary on one’s public affairs. 4 This freedom of expression
can be restricted if it harms national security or public order. 5 The speech by Dr. Novak
cannot be restricted based on these grounds as it does not fulfil the conditions.

1) The Speech did not harm national security or public order

3. Under humanitarian law, the term ‘public order’ describes the general conditions that
must exist so that individuals can enjoy their rights and freedom. 6 ‘National security’ is
invoked when the political independence or the territorial integrity of the State is at risk.7

1
ICCPR, Art. 19
2
Primo Jose Essono Mika Miha v. Equatorial Guinea, CCPR/C/51/D/414/1990 , UN Human Rights Committee
(HRC), 10 August 1994
3
UN Human Rights Committee (HRC), General comment no. 34, Article 19, Freedoms of opinion and
expression, 12 September 2011, CCPR/C/GC/34

4
Coleman v Australia, HRC, UN Doc CCPR/C/87/D/1157/2003 (10 August 2006); Velichkin v Belarus,
Merits, UN Doc CCPR/C/85/D/1022/2001
5
ICCPR, Art. 19(3)
6
Françoise Bouchet-Saulnier, ‘The Practical Guide to Humanitarian Law’ (Doctors without borders :The
Practical Guide to Humanitarian Law), 2013
7
“The International Covenant on Civil and Political Rights: Cases, Materials, and Commentaries (2d Ed.). By
Sarah Joseph, Jenny Schultz, and Melissa Castan. Pp. Lx, 985. Index. Oxford, New York: Oxford University
Press, 2004. $230, £125.” (2004) 98 American Journal of International Law 876
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 Memorial for the Applicant

4. Post Dr. Novak’s speech, no protest or even slight disagreement was observed in Lumina.
It was only his arrest that outraged people in Mirelva. The bar for ‘national security’ is
higher than ‘public order’. Consequently, his speech does not threaten Lumina’s national
security as well.

2) THE RESTRICTION IS NOT PROVIDED BY LAW AND IS NOT NECESSARY

5. The restriction imposed on Dr. Novak in the form of arrest and detention is arbitrary. It is
not a) provided by law, b) was not necessary and proportional.8

1) The restriction is not provided by law

6. Arrest and subsequent detention must be specifically authorized and sufficiently

circumscribed by law.9 “Provided by law” means the national legislature sat down in
statute all permissible restrictions.10 Administrative provisions are thus not sufficient.11
7. The law analogous to Sec 124A of IPC does not itself provide for restrictions and hence,
is unclear and unreasonable.12 It does not provide sufficient guidance to ascertain what
sorts of expression are restricted. Dr. Novak had previously expressed similar views
supporting Mirelvan Nationals' rights and global cooperation. But no action was taken
against him. However, following a shift in the country's political climate, he was charged
under the law for a similar statement, highlighting the uncertainty surrounding the types
of restricted statements.

2) The detention was not necessary vis a vis the threat posed by Dr. Novak

8. Preventive detention must be necessary and proportional to the threat posed by the
individual.13 The deprivation of liberty must not be inappropriate, unpredictable, or

8
Nowak M, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, 2005), p. 466
9
Y Dinstein, ‘Right to Life, Physical Integrity, and Liberty’, in L Henkin (ed), The International Bill of Rights
(Columbia University Press, 1981), 130
10
Nowak M, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd edn, 2005)
11
Lillich, Richard B., 'Civil Rights', in Theodor Meron (ed.), Human Rights in International Law: Legal and
Policy Issues (Oxford, 1986; online edn, Oxford Academic, 22 Mar. 201)
12
van Alphen v. the Netherlands (Communication No. 305/1988), UN Human Rights Committee (HRC), 23 July
1990
13
U.N.Doc., Arbitrary Detention (2007) , ¶5(e); HRC, UN Human Rights Committee (HRC), General comment
no. 31 [80],; UN Human Rights Committee (HRC), General comment no. 31 [80], The nature of the general
legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13.
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 Memorial for the Applicant

substantively unjust.14 Detention must be reasonable under the circumstances. 15 It must be

the only way to accomplish the objective.16

i. No benefit was accrued by restricting his speech and hence, the action
is disproportional

9. Proportionality requires a balancing of the benefits gained by the public and the harm
caused to the right using the means selected by law to obtain the objective.17
10. 1In the present case, two-pronged harm was caused to Dr. Novak, (1) harm to the
freedom of expression and (2) harm to the freedom of movement. However, there was no
benefit accrued against the restrictions imposed. On the contrary, it caused protests in
Mirelva.

ii. The detention is unreasonable as no threat was posed by Dr. Novak

11. The threat has been defined as a declaration of intention to inflict loss or pain on another,
or to injure another by some unlawful act.18 Preventive detention is an exceptional step.19
The HRC has observed that detention is necessary when a subject may flee or could
thwart an ongoing investigation20.
12. Dr. Novak was a respectable citizen who had previously been part of Govt. initiatives in
helping Mirelvan nationals. Luminian public was not affected by his speech which merely
called for global collaboration. There is nothing to suggest that he posed a threat to the
state or could hamper the lawful process. Hence, the detention was unreasonable.

14

15
van Alphen v. the Netherlands, UNHRC, UN Doc CCPR/C/39/D/305/1988
16
MACKEN, 50,Principles and Best Practices on the Protections of Persons Deprived of Liberty in the
Americas, D. & E. Australia, U.N.Doc.CCPR [2002],
17
AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR
LIMITATIONS [2012], 340
18
United States v. Daulong, 60 F. Supp. 235 (W.D. La. 1945)
19
Mukong v Cameroon, Merits, UN Human Rights Committee [21st July 1994]
20
Samba Jalloh v. Netherlands, UN Human Rights Committee (HRC), 15 April 2002
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 Memorial for the Applicant

iii. Arrest and detention are not the least restrictive means available with
Lumina

13. The need to use such means is required only if the purpose cannot be achieved using other
legislative means that would equally satisfy the objective.21
14. Lumina had less restrictive options to achieve its objective without violating the rights of
Dr. Novak. These include the imposition of a fine, or a reasonable settlement with Dr.
Novak to deter him from making further speeches.

3) LUMINA’S ACTIONS VIOLATED THE CUSTOMARY INTERNATIONAL LAW.

15. Freedom of opinion and expression is universally accepted as a norm of Customary

International Law. 22
This is supported by state practice and codified in the African
Charter on Human and Peoples’ Rights 23, and the European Convention for the Protection
of Human Rights and Fundamental Freedoms24 etc.
16. Hence, If the court accepts the above arguments, it should also accept that Lumina has
violated the Customary International Law too.

21
United Mizrahi Bank v. Migdal Cooperative Village, Supreme Court of Israel, [November 9, 1995]
22
WILLIAM A. SCHABAS, The Customary International Law of Human Rights, (2nd Edt., 2005 ) pg 195
23
Organization of African Unity (OAU), African Charter on Human and Peoples' Rights ("Banjul Charter"), 27
June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
24
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as
amended by Protocols Nos. 11 and 14, 4 November 1950, Art. 10
18
 Memorial for the Applicant

II. LUMINA’S ECONOMIC SANCTIONS VIOLATE THE RIGHT TO SELF-

DETERMINATION AND SOVEREIGNTY

17. Sovereignty signifies independence of the capacity of a state to provide for its well-being
and development, free from the domination of other states and use of force. 25 The right to
self-determination includes right to make free economic and political choices. 26 The
principle of non-intervention is intricately associated these two rights. 27 Intervention in
the internal affairs of a state violates both these rights. 28 States have a duty of non-
intervention in the internal and external affairs of other states.29

A. LUMINA’S UNILATERAL SANCTIONS VIOLATED THE PRINCIPLE OF NON-INTERVENTION.

18. Unilateral economic sanctions violate the principle of non-intervention if they

unjustifiably infringe upon the sovereign rights of a state to conduct trade or decide its
foreign policy.30 Luminian sanctions go against the ‘Customary International Law
governing friendly relations among states’ since they violate the principle of non-

25
Taylor, P. (2020). A Commentary on the International Covenant on Civil and Political Rights; Military and
Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), para. 205, 263 ;
Island of Palmas Case (U.S./Netherlands), 2 RIAA 829 PCA (1928), 838
26
East Timor (Portugal v. Australia), Judgment, I. C.J. Reports 1995, p. 90; United Nations Charter 1945, art
1(2); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27)
para 202,258; Nationality Decrees Issued in Tunis and Morocco (U.K. v. France), Advisory Opinion No. 4,
1923 P.C.I.J (ser. B) No. 4; Friendly Relations Declaration (1970); S.C. Res. 1271, U.N. Doc. S/RES/1271
(1999); G.A. Res. 58/189, U.N. Doc. S/RES/58/189 (2003); G.A. Res. 52/119, U.N. Doc. S/RES/52/119 (1997)
27
Taylor, P. (2020). A Commentary on the International Covenant on Civil and Political Rights; Military and
Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), para 205
28
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States
in Accordance with the Charter of the United Nations, G.A. Res. 2625, Art. 3(1), U.N. Doc. A/RES/25/2625
(Oct. 24, 1970)
29
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), para
246; Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among
States in Accordance with the Charter of the United Nations, G.A. Res. 2625, Art. 3(1), U.N. Doc.
A/RES/25/2625 (Oct. 24, 1970).
30
G.A. Res. 2625 XXV (Oct. 24, 1970); P. Terry, ‘Letter to the Journal Unilateral Economic Sanctions and
Their Extraterritorial Impact: One Foreign Policy For All?’, 18(2) CHINESE J. INT. LAW 425, pp. 425-235
(2019); Hum. Rts. Council, U.N. Doc. A/HRC/RES/34/13, para 4 (Mar. 24, 2017).
19
 Memorial for the Applicant

intervention.31 The measures affected Mirelva’s domaine reserve32 [1] and were
unlawfully coercive [2].

1) Lumina’s sanctions affected Mirelva’s domaine reserve

19. A State’s domaine réservé comprises matters unregulated by international law.33 Non-
intervention, being a rule of Customary International Law 34 prohibits States from
coercively interfering in another State’s domaine réservé.35 Economic and political
elements of a state come under its domaine reserve.36 Hence, the intervention of a state in
the economic development of another state is prohibited when it is executed by methods
of coercion.37
20. The economic sanctions imposed by Lumina led to the abrupt collapse of the Mirelvan
economy; businesses folded and unemployment increased. The demand to take back
Mirelvan migrants came right after the imposition of sanctions. The sanctions were a way
to pressurize Mirelva to take back its migrants. The economic sanctions interfere with the
economic development and political choices of Mirelva which must remain free and thus
violate the principle of non-intervention.

2) The objective behind the economic sanctions is illegitimate

21. No state shall use economic measures to coerce another state for impermissible
objectives.38 It includes extraction of advantages or subordination. 39 The nature of the

31
U.N. Charter, Art.2(7); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986
I.C.J. 14 (June 27), para 185, 202; Declaration on Principles of International Law Concerning Friendly
Relations and Cooperation Among States in Accordance with the Charter of the United Nations, G.A. Res.
2625, Art.3(1) (1970).
32
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) para
205; Antonios Tzanakopoulos, The Right to be Free from Economic Coercion, 4 CAM. J. INT’L. AND COMP. L.
616, 619-20 (2015).
33
Katja S. Ziegler, Domaine Réservé, in MAX PLANCK ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW
(Rudiger Wolfrum ed., 2012); Nationality Decrees Issued in Tunis and Morocco (U.K. v. France), Advisory
Opinion No. 4, 1923 P.C.I.J (ser. B) No. 4, 24.
34
Ian Brownlie, Principles of Public International Law, OUP (2008), 6-7.
35
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27), para
205; Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among
States in Accordance with the Charter of the United Nations, G.A. Res. 2625, Article 1.
36
Ibid.
37
supra note 11
38
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of
Their Independence and Sovereignty," General Assembly resolution 2131 (XX), 1965,
20
 Memorial for the Applicant

ground offered as justification is important to consider when state conduct is prima facie
inconsistent with the principle of non-intervention.40
22. Lumina used security concerns as a justification for economic sanctions. It is very vague
in nature. There is nothing to corroborate any threat to its security. It was mere shift in
political ideologies that suggested prioritizing security. Rather, economic sanctions are an
attempt to control the conduct of Mirelva through the manipulation of resources. Lumina,
being economically powerful, exercised dominance over Mirelva. It used this power
before making the demand to repatriate its migrants with the clear intention of pressuring
Mirelva to get its demand accepted. These objectives affront the charter goals of
tolerance, friendly relations, and cooperative effort to solve international economic
problems and peaceful settlement of situations as such.

i. Arguendo, the object is legitimate, Lumina has abused its rights

23. The doctrine of abuse of rights requires states to exercise their rights reasonably and not
harm another state.41 Even if, the economic sanctions were an exercise of Lumina’s
sovereignty to safeguard its interests, Lumina abused its rights in impinging on Mirelva’s
right to sovereignty by coercing its free choices.
24. Hence, the imposition of economic sanctions violates the principle of non-intervention
and thus, the right to self-determination and sovereignty.

B. UNILATERAL ECONOMIC SANCTIONS ARE UNLAWFUL UNDER INTERNATIONAL LAW

25. Lumina’s economic sanctions violate the internal law as these (1) are against the UN
Charter, (2) violate human rights, (3) do not come under any exception

39
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States
in Accordance with the Charter of the United Nations, G.A. Res. 2625
40
Malcolm Shaw, International Law (9th Edition) (Cambridge University Press 2021), Military and Paramilitary
Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27) para. 201
41
Byers, “Abuse of Rights” (2002) 47 McGill LJ 389, 411; Kiss, “Abuse of Rights” (2006) Max Planck
Encyclopedia of PIL, [5]; German Interests in Polish Upper Silesia (1926) PCIJ Ser A No 7, 37-38; US-Shrimp
(1998) WT/DS58/AB/R, [156]-[158]; GabCikovo-Nagymaros Project (Hungary Slovakia), Judgment, 1. C. J.
Reports 1997, p. 7.
21
 Memorial for the Applicant

4) The unilateral nature of the sanctions is not in accordance with the UN Charter

26. The legality of unilateral economic sanctions has not been crystallized under CIL. 42 The
UN General Assembly, on the other hand, has consistently stated that unilateral and
unauthorized economic measures are against international law.43 UN Charter permits
economic sanctions only when authorized by UNSC or taken in self-defense. 44 Self-
defense can be exercised only in response to an armed attack.45 UN Charter promotes duty
for economic cooperation and social welfare.46 The purpose of the Charter is to maintain
international peace and security47 through “peaceful means,”48 “friendly relations among
nations” and “co-operation” in solving international problems.49
27. Prima facie, Lumina was not authorized by UNSC. There was no armed attack involved.
Hence, self-defense cannot be exercised. Lumina’s sanctions devastated Mirelvan
economy harming the civilian population. It did not make any effort to negotiate before
materializing such a decision, showing lack of intention to cooperate. Therefore, due to
the presence of an express obligation for economic cooperation and peace, the imposition
of unilateral sanctions was unlawful.

5) Lumina’s sanctions adversely affected its obligations for the protection of human
rights.

28. The right of self-determination is of particular importance because its realization is an

essential condition for the effective observance of human rights50.

42
Julia Schmidt, The Legality of Unilateral Extra-territorial Sanctions under International Law, 27(1) J.
CONFLICT AND SECURITY L., 53, pp. 53–81 (2022); Alexandra Hofer, The Developed/Developing Divide on
Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention? 16(2) CHINESE J. INT.
LAW 175, pp.175–214 (2017).
43
G.A. Res. 50/151 (Feb. 9, 1996); G.A. Res 68/200 (Dec. 20, 2013); G.A. Res. 70/151, (Dec. 17, 2015); G.A.
Res. 70/185 (Dec. 22, 2015).
44
United Nations Charter 1945, Art. 51 and 53
45
United Nations Charter 1945, Art. 51
46
United Nations Charter 1945, Art. 55(b)
47
Rudiger Wolfrum, Purposes and Principles of International Environmental Law, 33 GERMAN Y.B. INT'l L.
308 (1990).; United Nations Charter 1945, Art. 1
48
Draft Declaration on Rights and Duties of States 1949, A/RES/375, Art. 8
49
46 OF MEMO
50
United Nations Charter 1945, Art 55(c) Taylor, P. (2020); United Nations Charter 1945, Art 1(3); Articles on
Responsibility of States for Internationally Wrongful Acts, adopted by the ILC at its 53rd Sess., annexed to G.A.
Res. 56/83, U.N. Doc. A/RES/56/83 (2001), Art. 50(c); Universal Declaration of Human Rights, 1948, U.N.
Doc. A/810, Art. 25 and 28; Lori F. Damrosch, The Legitimacy of Economic Sanctions as Countermeasures for
Wrongful Acts, 37. BERKELEY J. INT'L L. 249 (2019); (Islamic Republic of Iran v. United States of America)
22
 Memorial for the Applicant

i. Sanctions violated ICCPR Article 6 and 12

29. Sanctions must always take full account of the rights under the ICCPR. 51 It enshrines the
right to freedom of movement. 52 it includes the right to travel internationally. 53 It also
guarantees the right to life.54 Restrictions must “use precise criteria and may not confer
unfettered discretion.”55 They must also be proportional and the least intrusive method.56
30. Mirelvan economy was dependent on fishing and maritime resources. Rising sea level
had already devastated mirelava’s economic capacity. Trade embargoes resulted in abrupt
collapse of its economy. In this context, the economic sanctions disabled Mirelva’s
capacity to procure goods and technologies causing hardship to the citizens to the extent
that it could threaten their life. Hence, the sanctions undermined Mirelvan citizens’
right to life, development, and an adequate standard of living.57
31. Apart from IMS’s story, there was no evidence for threat of COVID-19. The story
represented mere apprehension. Lumina did not make its own assessment of the situation.
Based on one story, the sanctions were not proportionate to the danger involved. Also, it
was not the least intrusive instrument available. Airport screenings, contact tracing, and
quarantines were all less restrictive measures. The developed economy of Lumina could
afford such methods without incurring significant costs. Hence, Travel restrictions violate
the freedom of movement.

C. LUMINA CANNOT JUSTIFY ITS CONDUCT

32. No defenses are open to Lumina to justify its conduct. At present, Lumina cannot justify
the act of sanctions as (1) the defense of necessity cannot be invoked (2) Lumina lacks the
legal authority for imposing countermeasures

2021; United Nations Charter 1945, Art. 1(3) and 55(c)

51
Committee on Economic, Social and Cultural Rights, U.N. Doc. E/C.12/1997/8, para 1.
52
International Covenant on Civil and Political Rights, 1966, 999 U.N.T.S. 171, Art. 12.
53
Hum. Rts. Comm, 67th Sess., U.N. Doc. CCPR/C/21/Rev.1/Add.9, General Comment 27 (1999)
54
International Covenant on Civil and Political Rights, Art 6
55
Supra note 29.[13].
56
Ibid., [14].
57
Universal Declaration of Human Rights, 1948, U.N. Doc. A/810, ART. 25; International Covenant on Civil
and Political Rights, Art 6; UN Charter Art. 55(a)
23
 Memorial for the Applicant

1) Defense of ‘necessity’ cannot be invoked

33. The principle of necessity is part of Customary International Law under the condition that
it can be invoked only “on an exceptional basis.”58 In order for a State to invoke
necessity, certain conditions should be met which extend to the international
community.59 (1) it should be the ‘only’ way for the State to safeguard its ‘essential
interest’ against a ‘grave and imminent peril’ which should not be “merely apprehended”.
60
(2) the act should not seriously impair an essential interest of another State towards
which the obligation exists.61 The interest relied on must outweigh all other
considerations.62

i. Lumina faced no peril and its measures were not the ‘only’ way

34. Lumina’s justification for the measure was prioritizing their own security. There is
nothing to suggest that economic relations with Mirelva threatened Lumina’s security. It
was mere apprehension of Amina Kailani that could have materialized only after years.
For such a long period of time, unilateral imposition of economic sanctions seems hardly
the only alternative. There were less intrusive methods such as economic assessment of
the state, quarantine, better health observance.

ii. Mirelva’s essential interests were impaired by Lumina’s sanctions

35. By imposing sanctions, Lumina seriously impaired Mirelva’s interests. Mirelvan

economy collapsed, Trade ground to a halt, businesses folded, and unemployment rates
soared virtually overnight. Amidst climate crisis, this is bound to get worse.
36. Hence, due to non-fulfilment of these conditions, Lumina cannot use this exception.

58
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment of 25 September 1997 ICJ, para 51.
59
Commentary to Art. 25 of the ILC Draft ASR, Y.B.I.L.C., 1975, II, para 16-17.
60
Commentary to Art. 25 of the ILC Draft ASR, Y.B.I.L.C., 1975, II, para 1(a); Oil Platforms (Islamic Republic
of Iran v. United States of America), Judgment, I. C. J. Reports 2003, p. 161
61
Supra note 35, para 1 (b)
62
Ibid, para 17.
24
 Memorial for the Applicant

2) In any case, Lumina lacked the legal authority to punish Mirelva with
countermeasures.

37. Countermeasures cannot be used to defend the legality of unilateral sanctions.

Countermeasures preclude wrongfulness if they are undertaken by an injured state in
response to an internationally wrongful act. 63
38. Prima facie, Lumina is not an injured state as Mirelva did not commit any internationally
wrongful act. Hence, further evaluation is not required and this defense cannot be used.

63
Draft Articles on Responsibility of States for Internationally Wrongful Act with Commentaries, adopted by
the ILC at its 53rd Sess., U.N. Doc. A/56/10 (2001), Art. 22.
25
 Memorial for the Applicant

III. DENIAL OF NATIONALITY LED TO VIOLATION OF LUMINA’S OBLIGATIONS

39. Denial of nationality led to violation of Lumina’s obligations (1) arising out of its
unilateral act64; and (2) international treaties

A. LUMINA VIOLATED ITS OBLIGATION ARISING OUT OF ITS UNILATERAL ACT

40. An undertaking if given publicly by an authority with the power to do so and with an
intent to be bound is legally binding. 65 Such effect would depend on the content, factual
circumstances, and the reactions to the act.66 A binding unilateral act stands on the same
footing as a treaty. 67 States relying on the act have the right to require the state to respect
its obligations.68
41. The statement shared by Lumina’s former President constitutes a unilateral act. It was
made by the President of Lumina i.e., head of the state, who had the required authority,
on a social media platform i.e., publicly, with an intention to be legally bound by the
statement.69

1) The unilateral act intended to create binding obligations

42. Interpretation of the intention is manifested by the act itself. 70 The intention can be
ascertained through (1) content of the statement, (2) the circumstances in which the
statement was made and (3) the conduct of author state after the act. 71

64
Garner, James W. “The International Binding Force of Unilateral Oral Declarations.” The American Journal
of International Law, vol. 27, no. 3, 1933, pp. 493–97. JSTOR, https://doi.org/10.2307/2189977. Accessed 3
Sept. 2023.
65
Nuclear Tests (Australia v. France), 1974 I.C.J. 58
66
Nuclear Test Case (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, 1 43 (Dec. 20); Nuclear Test Case (N.Z. v.
Fr.), Judgment, 1974 1.C.J. Rep. 457,1 46 (Dec. 20); Special Rapporteur, Fifth Report on Unilateral Acts of
States, Int’l Law Comm’n, para. 51, U.N. Doc. A/CN.4/525 (Apr. 4, 2002).
67
Advisory opinion Concerning the Status of Eastern Carelia [1923] P.C.LJ., ser. B, No. 5.
68
Case concerning the Temple of Preah Vihear (Cambodia v. Thailand),I.C. J. Reports 1962, p. 6 ; U.N. Doc.
A/61/10 (2006)
69
. Nationality Decrees Issued in Tunis and Morocco (U.K. v. France), Advisory Opinion No. 4, 1923 P.C.I.J
(ser. B) No. 4
70
'The Effect of Unilateral State Acts in International Law' (1969) 2 NYU J Int'l L & Pol 333
71
Frontier Dispute, Burkina Faso v Mali, [1986] ICJ Rep 554; Vienna Convention on the Law of Treaties
(1969), art 31(2)
26
 Memorial for the Applicant

i. The content and circumstances imply the intention to be legally bound

43. The content of the statement cannot be read in isolation. The statement was not made in
vacuo, but in the context of ORI. The message was shared the very next day of migrants’
arrival in Lumina. It must be seen that the relationship between the two countries in this
period was very special. They were having a close collaboration for climate response in
which Lumina provided finance and technological assistance to Mirelva. The words used
thus cannot be interpreted literally as “war, persecution, terror”. It must indicate the
context in which they were used. Hence, they must include those fleeing from the climate
crisis.
44. Further, “Luminians will welcome you” is a vague phrase. It must be read with “Diversity
is our strength”. The President would not have mentioned this if the intention was to give
temporary protection. Using this phrase is reasonable in the context of giving membership
only.
45. Nationality, though being a part of municipal law, is limited by international obligations. 72
Hence, the content read within the context gives rise to an obligation to give nationality to
climate migrants from Mirelva.

ii. Lumina’s after-conduct shows its consent to the above interpretation

46. A statement can be confirmed by subsequent acts of the state for legally binding force. 73
A state if acts or behaves, implicitly or explicitly in such a manner as to suggest that the
act is valid, cannot go back upon that obligation. This view is consistent with the desire of
international law for stability in State practice.
47. Lumina allowed the entry of migrants into their territory. They were living in the refugee
camps. After the statement was made, Lumina did not object to the presence of those
migrants. This conduct of Lumina shows that it undertook an obligation towards
Mirelva’s ‘environmental migrants. It was only after the President changed that the
migrants turned into a problem.

72
Nationality Decrees Issued in Tunis and Morocco (U.K. v. France), Advisory Opinion No. 4, 1923 P.C.I.J
(ser. B) No. 4, 24; Nottebohm Case (Liechtenstein v. Guatemala) [1955] ICJ 1
73
U.N. Doc. A/CN.4/557.
27
 Memorial for the Applicant

iii. Performance of obligations is required in good faith

48. Just like the rule of pacta sunt servada in the law of treaties, the binding character of
unilateral declaration is based on good faith.74 The principle of good faith provides
ground for estoppel to maintain security by precluding any change in position by a state
which jeopardizes rights of the other party.75 The main purpose of estoppel is to prevent a
state from benefiting from its inconsistent attitudes.76 It prevents unilateral denunciation
of the statements. It tends to support international cooperation and trust.77
49. This court used the principle of good faith to prevent France from getting back on its
statements made to the international community.78 Similarly, in this case, Lumina has
undertaken obligations to the international community at large, denunciation of which
violates the principle of good faith79 and may disrupt international cooperation.

B. LUMINA’S CONDUCT IS INCONSISTENT WITH THE INTERNATIONAL TREATIES

50. Nationality, though within state’s domestic jurisdiction, is affected by international

obligations and laws.80 Lumina’s conduct is inconsistent with (1) Customary International
Law (2) its duty to avoid statelessness.

1) Enforcing the declaration is consistent with the Customary International Law

51. Under Customary International Law ‘environmental refugees’ are granted a status of
subsidiary protection and are essentially provided with the rights as outlined in the
Refugee Convention.81 It includes facilitating expedited naturalization of refugees.82 By

74
Nuclear Tests (Australia v. France), 1974 I.C.J. 58, para. 46
75
Robert A. Friedlander, "The Foundations of International Criminal Law: A Present-Day Inquiry" (1983);
Honduras v. Nicaragua, [1960] I.C.J. 192.
76
Kirgis, Frederic & Sands, Philippe & Klein, Pierre, "Bowett's Law of International Institutions," The
American Journal of International Law 96, 741 (2002) (DOI: 10.2307/3062191) ; MacGibbon, "Estoppel in
International Law," 7 INT'L & COMP. L.Q. 469 (1958).
77
Nuclear Test Case (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, 1 43 (Dec. 20)
78
Ibid.
79
Nuclear Test Case (Austl. v. Fr.), Judgment, 1974 I.C.J. Rep. 253, 1 43 (Dec. 20), para 43-46; Nuclear Tests
Case (Australia & New Zealand v. France), I.C.J. 1974 I. C. J. Rep. 253, para 46-49; Rubin, Alfred P. “The
International Legal Effects of Unilateral Declarations.” The American Journal of International Law, vol. 71, no.
1, 1977, pp. 1–30. JSTOR, https://doi.org/10.2307/2200323. Accessed 3 Sept. 2023.
80
Nationality Decrees Issued in Tunis and Morocco (U.K. v. France), Advisory Opinion No. 4, 1923 P.C.I.J
(ser. B) No. 4; Nottebohm Case (Liechtenstein v. Guatemala) [1955] ICJ 1
81
Convention Relating to the Status of Refugees, 1951,189 UNTS 137.
82
Ibid. Art. 34
28
 Memorial for the Applicant

not according this status to the Mirelvan migrants, Lumina has deprived them of their
status rights under Customary International Law.
52. The Mirelvan migrants were forced to leave their country due to climate crisis. Therefore,
they qualify as ‘environmental refugees’ and must be accorded a status of subsidiary
protection. After residing for 3 years in Lumina, the government made no effort to
naturalize these refugees. By denying nationality, Lumina failed to fulfil its obligation of
protection. Denial of nationality by Lumina rendered the migrants unprotected against its
obligations under the Customary International Law.

2) Lumina is bound by its duty to avoid statelessness

53. Statelessness is a situation where one has no nationality. 83 Every state has the duty to
avoid statelessness.84 Lumina, by rendering the migrants stateless, has violated this duty.

i. Lumina’s actions left the migrants stateless

54. “Everyone has the right to a nationality”.85 Nationality is based upon reciprocity of rights
and duties between state and an individual. 86 National State has the duty of
(re)admission87 and residence.88
55. Mirelva’s denial to take back its migrants led to loss of their nationality as they were
rendered unprotected, due to the inability of Mirelva to protect them. Lumina too denied
nationality to them as against its unilateral declaration. This discretionary act of Lumina
rendered the migrants ‘stateless’.
56. Arguendo, the court accepts that they do have Mirelvan nationality, it is not ‘effective’ as
they are not protected by the state i.e., de facto statelessness. The 1961 conference

83
1961 Convention on Statelessness
84
Human Rights Council resolution 10/13, Human rights and arbitrary deprivation of nationality, 26 March
2009, para. 2-3; Report of the Secretary-General to the General Assembly, ‘Human rights and arbitrary
deprivation of nationality’, A/HRC/13/34 (14 December 2009), para. 47–55; International Law Commission,
‘Articles on Nationality of Natural Persons in Relation to the Succession of States (With Commentaries)’,
Supplement No. 10 (A/54/10) (3 April 1999).
85
Universal Declaration of Human Rights, 1948, U.N. Doc. A/810, Art. 15; 1961 Convention on the Reduction
of Statelessness, art 8; International Covenant on Civil and Political Rights, 1966, art 24(3)
86
P. Weis, Nationality and Statelessness in International Law, 2nd edn (Dordrecht: Kluwer Academic
Publishers Group, 1979), 162.; Ian Brownlie, Principles of Public International Law, OUP (2008)
87
International Covenant on Civil and Political Rights, art 12(4); Nystrom v. Australia, Human Rights
Committee, CCPR/C/102/D/1557/2007; Stewart v. Canada, Human Rights Committee,
CCPR/C/58/D/538/1993; Weis, Nationality and Statelessness in International Law, 2nd edn (Dordrecht: Kluwer
Academic Publishers Group, 1979)
88
P. Weiss, "Nationality and Statelessness in International Law" 2nd edn (Dordrecht: Kluwer Academic
Publishers Group, 1979)
29
 Memorial for the Applicant

adopted that de facto stateless should be treated as de jure stateless to enable them to
acquire effective nationality.89 Hence, in either case, Mirelvans were rendered stateless
and Lumina violated its duty.

3) Lumina has violated the obligations under ICCPR

57. Statelessness leads to violation of human rights. Nationality is the right to have rights and
in the absence of it, individuals get no protection. 90 Nationality within the municipal law
is limited by obligation to ensure full protection of human rights. 91 These include
obligations under ICCPR which preserves the inherent right to life of every individual.92
58. Lumina denied nationality to the migrants and rendered them vulnerable to violation of
their rights. They were forced to leave Lumina and live in life-threatening conditions in
Mirelva. This violated their right to life under Article 6 ICCPR.

89
UN Conference on the Elimination or Reduction of Future Statelessness, Resolutions, 29 August 1961,
A/CONF.9/14/Add.1, Res I.
90
R. Bernstein, Hannah Arendt and the Jewish Question (Cambridge, MA: MIT Press, 1996), 83; Hina Majid,
‘Protecting the Right to Have Rights: The Case of Section 56 of the Immigration, Asylum and Nationality Act
2006’; M. R. Somers, Genealogies of Citizenship: Markets, Statelessness, and the Right to Have Rights
(Cambridge University Press, 2008), 114.
91
Inter-American Court of Human Rights, Proposed Amendments to the Naturalization Provision of the
Political Constitution of Costa Rica, Advisory Opinion OC-4/84 of 19 January 1984, Series A No. 4, para 32.
92
International Covenant on Civil and Political Rights (ICCPR) 1966, art 6
30
 Memorial for the Applicant

IV. LUMINA SHOULD COMPENSATE MIRELVA

59. A State responsible for an internationally wrongful act is under an obligation to

compensate for the damages caused thereby.93 The compensation shall cover any
financially assessable damages including loss of profits insofar as it is established. 94
Compensation is as a form of reparation through which the injured state recovers the
damages it suffered from the state that committed an international wrongful act. 95 It
comes under the secondary obligations.96
60. Lumina committed an internationally wrongful act by imposing economic sanctions on
Mirelva. Since it was violated, this gives rise to the secondary obligation of reparation in
the form of Compensation.

A. THE ACT OF IMPOSING ECONOMIC SANCTIONS ON MIRELVA IS AN INTERNATIONALLY

WRONGFUL ACT

61. Lumina has committed internationally wrongful act as the unilateral economic sanctions
are (1) attributable to the state, (2) breach its international obligations

1) The act is attributable to the State under international law

62. “States can act only by and through their agents and representatives.” 97 In the given case,
it was President Amina, a representative of Lumina, who decided to impose economic
sanctions on Mirelva. Therefore, the act can be directly attributed to the state.

2) The economic sanctions breach the international obligations

63. International obligations cover both treaty and non-treaty obligations98. The UN General
Assembly condemns the use of unilateral sanctions and underlines their incompatibility
with the states' human rights obligations. 99 The UN Charter along with UN Declarations

93
International Law Commission, 2006, UN Doc. A/CN.4/L.682, Art. 36
94
Ibid.
95
Crawford J, The International Law Commission’s Articles on State Responsibility: Introduction, Text and
Commentaries (Cambridge University Press 2007)
96
UN General Assembly, Report of the International Law Commission, 23 July 1999, A/54/10
97
“German Settlers in Poland.” (1933) 2 Annual Digest of Public International Law Cases 71
98
Crawford J, “The ILC’s Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect”
(2002) 96 American Journal of International Law 874
99

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 Memorial for the Applicant

prohibits the use of economic sanctions and positively obliges states to cooperate
economically.100
64. Lumina imposed ‘unilateral’ economic sanctions, which are illegitimate under
international law, on Mirelva in clear violation of UN Charter. It lacked the intention to
cooperate economically. Hence, it breached its international obligations.

3) The damage caused was financially assessable

65. The qualification “financially assessable” is intended to exclude compensation for what is
sometimes referred to as “moral damage” to a State.101 Compensation is the remedy that

covers financially assessable damages, for which restitution cannot be granted. 102
66. The damage caused to Mirelva was financially assessable as they suffered measurable
economic loss. There was a loss of jobs and a halt of businesses, all of which are material
damages which can be easily quantified.103 Therefore, Lumina is bound to compensate
Mirelva for the damages suffered by the economic sanctions imposed.

4) There is a causal link between the damage caused and the internationally wrongful
act.

67. Sufficient causal nexus between the wrongful act and the injury suffered must be
established.104
68. There is a direct causal link between the economic sanctions imposed by Lumina and the
loss suffered by Lumina. It is clear from the impact it had on Lumina’s economy- trade
halted and unemployment rose. There was no other active factor that led to the sudden
breakdown of the economy and other hardships for the citizens of Mirelva.105

100
Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among
States in Accordance with the Charter of the United Nations, G.A. Res. 2625, Art. 3(1), U.N. Doc.
A/RES/25/2625 (Oct. 24, 1970); UN Charter, Art. 55(a)
101
Crawford J, The International Law Commission’s Articles on State Responsibility: Introduction, Text and
Commentaries (Cambridge University Press 2007); Marshall Brown P, “Costa Rica v. Nicaragua” (1917) 11
American Journal of International Law 156
102
Article 36, International Law Commission (ILC)
103
Compromise, para 13
104
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation,
Judgment, I.C.J. Reports 2018, p. 15
105
Compromise, para 13
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 Memorial for the Applicant

B. COMPENSATION IS A NORM UNDER CUSTOMARY INTERNATIONAL LAW.

69. Entitlement to compensation for such losses is supported by extensive case laws, state
practice and the writings of jurists.106 In the Gabčíkovo-Nagymaros Project case, the court
recognised compensation to the injured state as a well-established rule of international
law.107 The same principle has been reiterated in the Chorzow Factory case. 108 The duty to
make reparation for such violations is explicitly referred to in the Second Protocol to the
Hague Convention for the Protection of Cultural Property. 109 It is also implied in the rule
contained in the Geneva Conventions, according to which States cannot absolve
themselves of any liability incurred in respect of grave breaches.110
70. By committing an internationally wrongful act i.e., imposition of economic sanctions,
Lumina has caused damages to Mirelva. Hence, it is bound to compensate Mirelva under
CIL, as supported by the decisions of this court.

106
GabCikovo-Nagymaros Project (HungarylSlovakia), Judgment, 1. C. J. Reports 1997, p. 7
107
Ibid.
108
Factory at Chorzow (Germany v. Poland), [1928] ICGJ 255 (PCIJ 1928)
109
Desch T, “The Second Protocol to the 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict” (1999) 2 Yearbook of International Humanitarian Law 63
110
First Geneva Convention, Article 51 (adopted on 12th August 1949)
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 Memorial for the Applicant

PRAYER FOR RELIEF

Therefore, it may please the Court to adjudge and declare that:

I. The arrest and detention of Dr. Novak is a violation of his right to political expression
under international law and order his immediate relief.

II. Lumina’s imposition of economic sanctions constitutes a violation of the Mirelvan

Nations sovereignty and their right to self-determination and order the withdrawal of
such sanctions.
III. The denial of nationality to the people of Mirelva is a breach of Lumina’s obligations
and order the granting of the status of nationals to the Mirelvan nationals in the
territory of Lumina.
IV. The Government of Lumina should compensate the Confederation of Mierelva.

Respectfully submitted,

The Confederation of Mirelva

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