Group 4 Page 1 of 10 SPEECH Mister President, Your Excellencies, Good morning.

May it please the Court, my name is John Rafael Patron Atienza, the first agent for the State of Armis. I am assisted by my co-agent, Mr. Kenneth Santos, and our off-counsel Ms. Diane Villafuerte, and together, we enter our appearances before this honorable court. As first agent for the Applicant, I shall be discussing two submissions: First, that this court may exercise jurisdiction over all our claims and second, that the State of Armis can exercise its diplomatic protection on the claims of Ms. Shunzette. My co-agent, on the other hand, will discuss our last two submissions: First, that the Right to work of Ms. Shunzette was violated, and that _____ In presenting our submissions, we beg this cou rts indulgence for 8 minutes to present my submissions, 12 minutes for that of my co-agents, and an additional 3 minutes for our rebuttal. I will now proceed to my submissions. May it please the Court Your Excellencies, Ms. Shunzette Alfurna, a national of Armis (C.6)suffered from a great injustice due to theillegal dismissal that was inflicted against her by Recho (C.8- Recho represented NRI; C.7- dismissed as punishment; C.11- Footnote says employee matters are under control of government). This occurred after the threat of the spread of a malignant influenza in the State of Megoose. (C.2). Ms. Shunzette was working in the National Research Institute of Rechowhich is 60 km. from the area where the spread of influenza was most serious (C.6). Following the instructions of the Government of Armis to leave Recho and Megoose (C.6), she returned home along with her 5 year old child (C.6). Upon her return to Recho, she was told that she was dismissed as punishment (C.7). Despite efforts to revoke her dismissal, she was not allowed to resume her work. The first issue is whether this Court has jurisdiction over our claims because Ms. Shunzette is an individual and not a State. The answer is Yes. In support of this claim, I would like to make Two Submissions. First, that this Court may exercise jurisdiction pursuant to Art. 38 (a) and (b) of the Statute of the International Court of Justice. Second, that the State of Armis can bring the claims of Ms. Shunzette to this Court under the principle of Diplomatic protection. Turning to my first submission.

Article 38 states: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; In compliance to this, it is the State of Armis and the State of Recho that submit this dispute to this Honorable Court. This is in further compliance to Art. 34 of the Statutes of this Court mandates that only States may bring cases before this Court.This action is in accordance with the agreement between ourtwo States after an impasse has occurred in the negotiations (C.11). Our Statesare currently involved in a dispute concerning the dismissal of an evacuating foreigner during an outbreak of a malignant influenza. As such in pursuant to Art. 36 of the Statute of this Court, this Court has jurisdiction overall cases which the parties refer to it and all matters especially provided for in the Charter of the United

Group 4 Page 2 of 10 Nations or in treaties and conventions in force. (Armis and Recho are members of the United Nations, Compromis, paragraph 1 C.1). There are treaties and conventions involved in the case which are: a. the International Covenant on Civil and Political Rights (ICCPR), b. the Convention on the Elimination of All Forms Discrimination against Women (CEDAW), c. the Convention on the Rights of the Child (CRC), and d. the Vienna Convention on Law of Treaties (C.1). Thus, each party will accept the judgment of this Court as final and binding and shall execute it in its entirety and in good faith. Jurisdiction also requiresratione personae and ratione materiae. And Yes, Both jurisdiction ratione personae and jurisdiction ratione materiae are present in this case. Ratione personae literally means by reason of his person or by reason of the person concerned. In some international cases, a courts jurisdiction depends upon whether a defendant is residing within the territory of the court or whether a defendant is a citizen of the state to which the court belongs. In such cases, jurisdiction of a court is decided by reason of the defendant or ratione personae. In international law, ratione personae expresses the rule of law that only a state that is a party to an international treaty can take 2 part in international dispute resolution process. State of Armis and State of Recho are sovereign states (ratione personae), the former advocating the claims in its exercise of diplomatic protection against the latter (C.9) in accordance to the treaties where both States are a party to and to the International Customary Law which is recognized by the international community. Hence, ratione personae has been complied with. Ratione materiae on the other hand, otherwise known as subject-matter jurisdiction refers to the court's authority to decide a particular case. It is the jurisdiction over the nature of the case and the type of relief sought; the extent to which a court can rule on the conduct of persons or the status of things. The reasoning behind subject-matter jurisdiction is that the court with the greatest interest in deciding the dispute should be the court that has the opportunity to make a ruling on it. Armis and Recho agreed to refer the dispute to this Court. With this, this Court now has the opportunity to decide on this case. Hence, jurisdiction ratione materiae is complied with (C.11). It would then be its function to decide in accordance with international law applying: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; and b. international custom, as evidence of a general practice accepted as law. (Art. 38 Statute of ICJ) With all the foregoing, this court is competent enough to exercise jurisdiction over the dispute. Moving to my second submission, the State of Armis can bring the claims of Ms. Shunzette to this Court under the principle of Diplomatic protection. Our appearance before this Court arises from the claim of our national Ms. Shunzette against the Recho. The Draft Articles on Diplomatic Protection recognizes the right of a State to bring a case 3 of for an injury caused by an internationally wrongful act committed against its national, In order for a State to exercise this right, Armis must show that there exist an injury suffered by its national by another State, that there exist a nationality of claim, and its national must have exhausted local remedies.
1

1 2

International Court of Justice, Statute of the Court, Article 36, USLegal, Ratione Personae Law & Legal Definition, available at: http://definitions.uslegal.com/r/ratione-personae/, last accessed on 17 March 2013.
3

ASR, Art. 2.

Group 4 Page 3 of 10 As will be discussed by my co-agent in our 3 and 4 submissions to this court, Recho has breached the international treaties for which Recho and Armis are a party to and the international customary laws recognized by the international community. These internationally wrongful acts resulted to injuries that were suffered by our national Ms. Shunzette which includes dismissal from work, denial of dismissal payment and disqualification for reemployment. In this respect, Armis respectfully submits this States claim on behalf of Ms. Shunzettes under Diplomatic protection to secure reparation for injury premised on the principle that an injury to a national is an injury to the State itself. Being a national of Armis at the time of the injury and up to this moment, it is but proper that our State that would be the one to bring this case before this honorable Court. In the exhaustion of local remedies, Local remedies means legal remedies which are open to the injured person before the judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be responsible for causing the injury.Ms. Shunzette exhausted these by instituting a suit, which she eventually lost against the Goverment of Recho (C.9). She even requested for the State of Armis to negotiate with the State of Recho, but such negotiations reached an impasse. If there is any other argument against this, let me present an exception to the general rule on the exhaustion of local remedies: Art. 15 of the draft Articles on diplomatic protection provides that there is no need to exhaust local remedies when (e) The State alleged to be responsible has waived the requirement that local remedies be exhausted. In paragraph 11 of the Compromi, it is stated that both Armis and Recho have agreed to refer the dispute to this honourable Court. In paragraph 13 of the Compromi, it is not alleged by Recho that there are any other local remedies available for Ms. Shunzette. It is worth noting that Waivers are a common feature of contemporary State practice and many arbitration agreements contain waiver clauses. Probably the best-known example is to be found in article 26 of the Convention on the Settlement of Investment Disputes, which provides: Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy In addition to this, it has recognized by the European Court of Human Rights that in the case of Lehtinen V. Finland that there is the need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights (Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, 89; Lehtinen v. Finland (dec.), no. 39076/97, ECHR 1999VII). The rule of exhaustion is not absolute The same Court recognizes in the case of Moreira Barbosa v. PortugalIf more than one potentially effective remedy is available, the applicant is only required to have used one of them (Moreira Barbosa v. Portugal, no. 65681/01, decision of 29 April 2004; Jelicic v. Bosnia and Herzegovina, no. 41183/02, decision of 15 November 2005, at p. 31).
rd th

With the foregoing, the exhaustion of local remedies has been complied with.

Group 4 Page 4 of 10 Your Excellencies, I have discussed before this Court the following: First, that this Court have jurisdiction over this case under Art. 38 (a) and (b) of the Statute of the International Court of Justice. This dispute has been referred to this Court by the State of Armis and the State of Recho. As such, this Court may decide in accordance with international law such disputes as are submitted to it. Second, that Armis can bring the claim of Ms. Shunzette to this Honorable Court under the principle of Diplomatic Protection. Our national, Ms. Shunzette has suffered an injury due to the internationally wrongful act committed by Recho and that there is no other remedy available other than to bring this action to this Honorable Court Unless YE have further questions, it is with gratitude that I now cede the floor to my co-agent for his own presentations. I thank you for your time and indulgence. May it please the Court.

3. The rule of prior exhaustion of domestic remedies applies to inter-State cases taken under Article 33, where the applicant state alleges violations of the Convention against individuals (Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, 159). See also the extensive consideration in Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001-IV, 82-102. However, the rule does not apply where the applicant State complains of a practice as such, with the aim of preventing its continuation or recurrence: Denmar k v. Turkey, (dec.), no. 34382/97, p. 34 (citing the Ireland judgment). If more than one potentially effective remedy is available, the applicant is only required to have used one of them (Moreira Barbosa v. Portugal, no. 65681/01, decision of 29 April 2004; Jelicic v. Bosnia and Herzegovina, no. 41183/02, decision of 15 November 2005, at p. 31). 5. The exhaustion rule may be described as one that is golden rather than iron: the Commission and the Court have frequently underlined the need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights (Ringeisen v. Austria, judgment of 16 July 1971, Series A no. 13, 89; Lehtinen v. Finland (dec.), no. 39076/97, ECHR 1999-VII). The rule of exhaustion is neither absolute nor capable of being applied aut omatically. This flexible approach is borne out in the Courts treatment of the various issues that arise in connection with the rule.

(13) Waiver of local remedies may take many different forms. It may appear in a bilateral or multilateral treaty entered into before or after the dispute arises; it may appear in a contract between the alien and the respondent State; it may be express or implied; or it may be inferred from the conduct of the respondent State in circumstances in which it can be described as estoppel or forfeiture. (14) An express waiver may be included in an ad hoc arbitration agreement concluded to resolve an already existing dispute or in a general treaty providing that disputes arising in the future are to be settled by arbitration or some other form of international dispute settlement.

Group 4 Page 5 of 10 Waivers are a common feature of contemporary State practice and many arbitration agreements contain waiver clauses. Probably the best-known example is to be found in article 26 of the Convention on the Settlement of Investment Disputes, which provides: Consent of the parties to arbitration under this Convention shall, unless otherwise stated, be deemed consent to such arbitration to the exclusion of any other remedy

The first issue at hand is whether this Court is precluded from exercising jurisdiction over our claims because Alfurna had ceased to exist as a State. The answer is NO. In support of this claim, I would like to make Two submissions. First, Respondent failed to satisfy the burden of proof that Alfurna is now extinct in light of the strong presumption of state continuity. Second, The Island of Nasatima constitutes the new territory of Alfurna. Turning to my first submission. YEs, under the 1st paragraph of the Compromis, Alfurna undeniably became an independent, sovereign state in 1904. More than 100 years have passed and the statehood of Republic of Alfurna was never questioned by Rutasia, by the community of states and even by the United Nations. Alfurna had thus transcended to enjoy the principle of strong presumption of state continuity. James Crawford,1 a legal luminary on the issue of creation of states in international law, explained that by strong presumption of the state continuity, a state continues to exist despite drastic changes in its territory, its people, or its government. 1 He is a Professor of International Law at the University of Cambridge and Fellow in Law at Jesus College, Cambridge. He was formerly Director of the Lauterpacht Centre for International Law at Cambridge. He is a full member of the Institut de Droit International since 1991 and of the United Nations International Law Commission ("ILC") since 1992. He served as Special Rapporteur on State Responsibility from 19972001 and was also responsible for the production of the ILC's Draft Statute for an International Criminal Court. Since 2003, he has been a member of the Curatorium of The Hague Academy of International Law. State practice indeed shows that drastic changes in these important aspects of statehood had not affected the existence of a state. We consider the situation of Poland during World War II as prime example of the strong presumption of state continuity. In 1939, Germany and the Soviet Union invaded Poland and partitioned it pursuant to the Molotov-Ribbentrop Pact Germany annexed the western part of Poland while the USSR appropriated the eastern part of Poland, which later on became Belarus, Ukraine and Lithuania. In doing so, inhabitants of Poland were expelled and its political and constitutional systems changed. Poland no longer had sovereign control over territory until 1945 or for 6 years. After the war and pursuant to the Yalta and Potsdam Agreements, Polands territory was radically and entirely rearranged while it regained new territory from Germany, it

Group 4 Page 6 of 10 permanently lost a substantial amount of its former territory to USSR. Notwithstanding these drastic changes, the now State of Poland was treated in practice as if it were the same State of Poland before 1939. The treaties it ratified before 1939 were still recognized and continued in force. Due to presumption of state continuity, the State of Poland did not cease to exist during the 6 years that it did not have territory. YEs, we submit that this Court recognize the strong presumption of state continuity in favor of Alfurna. In considering this, we further stress that this Court take into account the context behind Alfurnas temporary loss of territory. Similar to what happened to Poland, Alfurna also faced a unique situation an environmental catastrophe. Despite this, Alfurna did not completely surrender its existence. Alfurna made efforts to cede and find a new homeland right after it learned that its original territory might disappear because of earthquakes and extreme weather events. Eventually, Alfurna found a new homeland Nasatima Island on which it subsequently established all state functions. The Government of Prime Minister Fatu continued its leadership in Nasatima while Alfurna likewise maintained its relations with other states. In fact, the United Nations did not expel Alfurna as a member state after it officially lost its original territory on December 26, 2011. Alfurna continues to have a permanent representative at the UN who attends the sessions of the General Assembly. We submit therefore that Alfurna continued as the same state of Alfurna even after losing its original lands. YEs, the strong presumption of state continuity must be complemented with the equally strong presumption against extinction of state, especially when the status of statehood had already been firmly established. The international community has recognized three instances in which a state is considered to have discontinued by merger, by absorption, and by dissolution or the breaking up of one State to form several states. YEs, temporary loss of territory does not fall under any of these internationally recognized modes of discontinuance of statehood. We stress that the total loss of a states original territory due to environmental factors is unprecedented. Furthermore, while in the case of absorption, merger and dissolution, there was voluntary action on the part of states, we confront a novel issue in which an existing, established state consciously decides to continue as a state despite involuntary total loss of its original landholdings. Moving to my next submission, the Island of Nasatima is the new territory of Alfurna. YEs, In the Island of Palmas case, the Permanent Court of Arbitration held that within the question of statehood, territory means a core territory that is subject to the effective control of the authorities of the State. The case of Deutsche Continental Gas vs. Polish State, enunciated that in order to say that a State exists, it is enough that its territory has sufficient consistency, and that the State actually exercise independent public authority over that territory a formula that suggest that territory is only a constituent of government and independence than a distinct statehood criterion of its own. YEs, States practice recognizes exercise of sovereignty over leased territory. This is evident in the following cases: (1) lease of Hong Kong from China by the United Kingdom, (New territories); (2) the lease of Macau from China by Portugal, (3) the 1994 Israel-Jordanian Peace Treaty wherein some areas of Israel were leased by Jordan. In all these instances, the exercise of sovereignty over the leased territories was transferred to the Lessee-states. Recently, lease of territory has been considered as a conventional solution for possible disappearance of low-lying island states like Alfurna. In 2009, Indonesia declared that it was considering leasing land to climate change refugees.

Group 4 Page 7 of 10 There are also ongoing negotiations between Tuvalu and Australia; and between Kiribati and Fiji. To reiterate my second submission, it is undisputed that Alfurna still satisfies all indicia of statehood as Nasatima is its new territory and it continues to have a permanent population, an effective government and it clearly maintains relations with other states. Your Excellencies, I have just proven to you that Alfurna never ceased to be a state and therefore this court may exercise jurisdiction over its claims. I shall now proceed to the next issue before this Court. YE, Alfurna had been preparing for the harmful effects of climate change on our territory for almost 20 years (since June 1992). Since the islands of Engli and Batri had been the home of our ancestors for more than 200 years, we focused all our efforts in salvaging our homeland. We repaired old and erected new seawalls to prevent the sea from engulfing our territory. However, as soon as Alfurna discovered that relying on sea barriers would be futile, we immediately accepted our fate and decided to evacuate our motherland. Without ado, we implemented an emergency evacuation plan. We successfully secured a range of temporary emergency migration arrangements both within and outside the region. We had also talked with several states about the possibility of ceding part of their territory to Alfurna, but to no avail. As soon as we struck a deal with Finutafu for the lease of Nasatima Island, we immediately relocated our population. Unfortunately YE, due to the unpredictability of weather disturbances, approximately 3,000 Alfurnans were still in Engili when the seas engulfed our home. We evacuated our lands through overcrowded boats. Our brothers were found in Rutasian seas not because they voluntarily wanted to migrate to Rutasia but because of its closer proximity to Alfurna. Rutasia was the nearest safe haven for the environmentally displaced Alfurnans. But Rutasia, instead of affording them protection, detained them indefinitely and disregarded respect for their basic human rights. YEs, the second issue before this Court, is whether or not Rutasia processed and accorded status to the environmentally displaced Alfurnans consistent with International Law. The answer is NO. In proving this claim, we shall refer this court to the applicable framework under international law in protecting the environmentally displaced persons. Consequently, I would like to make two submissions, First, Alfurnan evacuees in Rutasia are Environmentally Displaced Persons or EDPs with basic human rights that must be respected, protected, and afforded. Second, Alfurna is entitled to make claims on their behalf. YEs, at this point, I would like to clarify that my co-agent will be discussing the specific violations of Rutasia vis--vis the EDPs detained at the Woeroma Center in his part of our presentation. My task today is to establish that there do exist international law frameworks that this court may refer to in determining the rights and protections that must be accorded to EDPS. Turning now to my first submission YEs, we submit that the Alfurnan evacuees in Rutasia are Environmentally Displaced Persons and are entitled to basic humanitarian protections recognized by international law. While we acknowledge that there is no exact and internationally recognized legal definition of who constitutes EDPs, the UN High Commissioner for Refugees, International Organization for Migration (IOM) and Refugee Policy Group, refer to EDPs as those persons who are involuntarily displaced within their own country or who have crossed an international border due to environmental

Group 4 Page 8 of 10 destruction. This descriptive definition is meant to characterize the status of these vulnerable groups and identify their peculiar and special needs, in light of existing rules under international law. In dealing with EDPs, we may refer to the fundamental human rights framework delineated under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Both Alfurna and Rutasia are signatories to this Convention. Since the rights and protections granted in those treaties are afforded to all human beings regardless of classification these same rights and protections must be afforded to environmentally displaced persons. EDPs must also be given assistance and protection pursuant to the general principle of law on humanity , which requires that individuals be treated humanely in all circumstances. These rights include the right to life, health, food, shelter and movement and not to suffer from any indefinite or arbitrary detention. These rights are owed equally to every human being by state parties to the treaties protecting them. More importantly, by virtue of their special conditions, we submit that EDPs should not be treated as mere illegal immigrants. Just like regular refugees, asylum-seekers, stateless persons, and migrant workers, EDPs are vulnerable groups who are forced to flee their country for some cause, either due to persecution, expulsion, lack of work, and others. In light of this, I would like to move to my second submission and establish that Alfurna is entitled to make claims on behalf of the environmentally displaced Alfurnans who are now detained in Rutasia. Discuss diplomatic protection (1-2 paragraphs) Discuss non-applicability of clean hands doctrine (1-2 paragraphs. Argue more about the elements, like Alfurna did not commit a breach of international law and even if there were, it is unrelated to the wrongdoing by Respondent. Dont argue na that the clean hand s doctrine is unrecognized in international law) Your Excellencies, I have discussed before this Court the following: Alfurna never ceased as a State and this court have jurisdiction over all our claims because First, Rutasia failed to satisfy the burden of proof that Alfurna is now dissolved in light of the strong presumption of statehood, and because Alfurna still satisfies all indicia of statehood. Also, I have presented before this Court that the Rutasia failed to process and accord status to the Alfurnan EDPs consistent with international law because (1) Alfurnan Migrants in Rutasia are Environmentally Displaced Persons in need of humanitarian protection and with individual basic human rights that must be respected and protected. Second, Rutasia failed to process and accord them status consistent with International Law. Unless YE have further questions, it is with gratitude that I now cede the floor to my co-agent for his own presentations. I thank you for your time and indulgence. May it please the Court.