VII World Human Rights Moot Court

Competition 8-10 December 2015

Geneva, Switzerland

IN THE MATTER BETWEEN

RONPALIAN RIGHTS ORGANISATION

AND

GOVERNMENT OF THE REPUBLIC OF RONPALIA

MEMORIAL FOR THE APPLICANT

 TABLE OF CONTENT
LIST OF ABBREVIATIONS ......................................................................

TABLE OF AUTHORITIES ......................................................................

Treaties, Conventions & C harters ............................................................................... 8

Rules of Procedure .................................................................................................... 11

General Comments & Recommendations ................................................................. 11

Human Rights Committee ...................................................................................... 11

Committee for the Elimination of Discrimination Against Women........................... 12

Committee for the Elimination of Racial Discrimination .......................................... 13

International Cases & Communications ..................................................................... 14

African Commission on Human and People‟s Rights ............................................. 14

Committee on the Elimination of Discrimination Against Women ........................... 14

European Court of Human Rights .......................................................................... 15

2
 Human Rights Committee ...................................................................................... 18

Inter-American Court of Human Rights .................................................................. 20

International Court of Justice ................................................................................. 21

International Criminal Tribunal for Yugoslavia ........................................................ 21

Miscellaneous ............................................................................................................ 24

SUMMARY OF ARGUMENTS ...................................................................................... 25

ARGUMENTS ADVANCED .......................................................................................... 26

A. ADMISSIBILITY..................................................................................................... 26

I. Applicant‟s claim is admissible under Article 5(2)(a)/(b) of OP to ICCPR ........... 26

a. No communication is made or being considered elsewhere ........................... 26

b. All available domestic remedies are exhausted .............................................. 26

II. The complaint is not manifestly ill-founded ........................................................ 28

a. The victim requirement rule is satisfied .......................................................... 28

b. RRO satisfies the locas standi requirement .................................................... 29

B. MERITS ................................................................................................................. 29

I. Removal, deportations of Bilkans and refusal to grant them refugee status is

inconsistent with Ronpalia‟s international obligations and is in violation of their

rights ...................................................................................................................... 29

a. Ronpalia breached its obligations by depriving Bilkans of their status rights

29

3
 b. Ronpalia has violated the rights of Bilkans ..................................................... 31

c. Removal and deportation of Bilkans was prohibited under IHRL .................... 32

d. Ronpalia has committed an internationally wrongful act and has incurred

responsibility ....................................................................................................... 33

II. The government of Ronpalia has failed in its obligation to protect women‟s rights

to association, religion and dignity in relation to the Ronpalian Festi val incidents .34

a. Ronpalia failed to protect women‟s right to dignity under Article 7 of ICCPR .35

b. Ronpalia failed to protect women‟s rights under Article 1 of CEDAW ............ 37

c. Ronpalia failed to protect women‟s right to religion and association .............. 38

III. The government of Ronpalia has interfered with Travis Dale Ben and others‟

(Travis Dale‟s) right to freedom of expression (FOE), equality before the law and the
rule

of law...................................................................................................................... 39

a. Restrictions on Travis Dale‟s speech violates his freedom enshrined in Article

19 of

ICCPR ................................................................................................................ 39

b. Travis Dale‟s speech is not incitement to hatred ............................................ 40

c. Restrictions on Travis Dale‟s speech fail to pass the three prong test of Article
19

and hence, invalid............................................................................................... 42

d. Ronpalia has interfered with Travis Dale‟s equality before the law and the rule
of

law ...................................................................................................................... 44

IV The government of Ronpalia has failed in its obligation to protect Sal Pull‟s

right to non-discrimi nation in sport ........................................................................ 45

4
 a. The Government of Ronpalia is answerable for actions of the FQWG........... 45

b. Sal being a minority has the right to non-discrimination under IHRL .............. 46

c. Ronpalia failed to protect Sal Pull‟s right to non-discrimination and equality

47

i) Indirect discrimination ................................................................................. 47

ii) Selective punishment and failure to provide effective remedy 49

PRAYER ....................................................................................................................... 51

5
 LIST OF ABBREVIATIONS
ART. Article

RCC Ronpalian Constitutional Court

RHC Ronpalian High Court

RRO Ronpalian Rights Organization

RSU Ronpalian Supreme Court

CID Criminal Investigations Department

CIL Customary International Law

TNC True News Chronicle

DPP Director of Public Prosecutions

ECHR European Court of Human Rights

FOE Freedom of Expression

FQWG Federation of Quantincian Winter Games

GC General Comment

GDP Gross Domestic Product

GR General Recommendations

HRC Human Rights Committee

HRE Human Rights for Everybody

IHR International Human Rights

IHRL International Human Rights Law

NGO Non Governmental Organisation

OHCHR Office of the High Commissioner for Human rights

GTL Glaze Trees Limited

6
RSD Refugee Status Determination

QHRC Quantincian Human Rights Convention / Court

QWG Quantincian Winter Games

UN United Nations

7
 TABLE OF AUTHORITIES
Treaties, Conventions & Charters

ACHPR African Charter on Human and Peoples‟Rights (Banju

Charter) of 27 June 1981; 1520 UNTS 217, OAU Doc

CAB/LEG/67/3 rev.5

ACHR (Inter-) American Convention on Human Rights of 22

November 1969; 1144 UNTS 123, OAS TS No. 36

AP-I Protocol Additional to the Geneva Convention of 12 August

1949, and relating to the Protection of Victims of

International Armed Conflicts (Protocol I) of 8 June 1977;

1125 UNTS 3

AP-II Protocol Additional to the Geneva Conventions of 12 August

1949, and relating to the Protection of Victims of Non-

International Armed Conflicts (Protocol II) of 8 June 1977;

1125 UNTS 609

ArCHR Arab Charter on Human Rights of 22 May 2004; reprinted in

12 International Human Rights Reports 893 (2005)

CAT Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment of 10 December 1984,

1465 UNTS 85

CERD International Convention on the Elimination of All Forms of

Racial Discrimination 7 March 1966, 660 UNTS 195

8
CRC UN General Assembly, Convention on the Rights of the

Child, 20 November 1989, United Nations, Treaty Series,

vol. 1577, p. 3

CRPD Convention on the Rights of Persons with Disabilities of 13

December 2006; UN General Assembly Resolution 61/106

(2006)

ECHR European Convention on Human Rights of 4 November

1950; 213 UNTS 221, ETS No 5

GC-I Geneva Convention for the Amelioration of the Condition of

the Wounded and Sick in Armed Forces in the Field of 12

August 1949; 75 UNTS 31

GC-III Geneva Convention relative to the Treatment of Prisoners of

War of 12 August 1949; 75 UNTS 135

GC-IV Geneva Convention relative to the Protection of Civilian

Persons in Time of War of 12 August 1949; 75 UNTS 287

ICAS United Nations Centre Against

Apartheid. (1990). International Convention Against

Apartheid in Sports. [New York]

ICCPR International Covenant on Civil and Political Rights of 16

December 1966: 999 UNTS 171

ICRMW International Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families of 18

December 1990; 2220 UNTS 93

9
ILCD International Law Commission, Draft Articles on

Responsibility of States for Internationally Wrongful Acts,

November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1

Montevideo Montevideo Convention on the Rights and Duties of States,

165 LNTS 19; 49 Stat 3097

OP Optional Protocol to International Convention on Civil and

Political Rights (1966)

OPCAT Optional Protocol to the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment of 18 December 2002; UN General Assembly

Resolution A/RES/57/199 (2002)

Refugee Convention Convention Relating to the Status of Refugees (adopted 28

July 1951, entered into force 22 April 1954) 189 UNTS 137

(Refugee Convention)

Rome Statue Rome Statue of the International Criminal Court of 17 July

1998; 2187 UNTS 90

SICTR Statue of the International Criminal Tribunal for Rwanda of 8

November 1994; UN Security Council Resolution 955 (1994)

SICTY Statue of the International Criminal Tribunal for the Former

Yugoslavia of 25 May 1993; UN Security Council Resolution

827 (1993)

UDHR Universal Declaration of Human Rights of 10 December

1948; UN General Assembly Resolution 217 A(III)

10
UNFCC United Nations Framework Convention on Climate Change,

1771 UNTS 107

OAU Organization of African Unity Convention Governing the

Specific Aspects of Refugee Problems in Africa (adopted 10

September 1969, entered into force 20 June 1974) 1001

UNTS 45 (OAU Convention)

Cartagena Cartagena Declaration on Refugees (22 November 1984) in

Annual Report of the Inter-American Commisssion on

Human Rights OAS Doc OEA/Ser.L/II.66/doc.10, rev. 1,

190-93 (1984-1985)

Rules of Procedure

HRC RoP Rules of Procedure of the Human Rights Committee, UN

Doc CCPR/C/3/Rev3 (24 May 1994)

General Comments & Recommendations

Human Rights Committee

HRC/GC/6 Human Rights Committee, General Comment No 6; UN Doc

HRI/GEN/1/Rev6 at 127 (2003)

HRC/GC/15 Human Rights Committee, General Comment No 15; UN

Doc HRI/GEN/1/Rev6 at 140(2003)

HRC/GC/17 Human Rights Committee, General Comment No 17; UN

Doc HRI/GEN/1/Rev6 at 144 (2003)

HRC/GC/18 Human Rights Committee, General Comment No 18; UN

Doc HRI/GEN/1/Rev.6 at 146 (2003)

11
HRC/GC/19 Human Rights Committee, General Comment No 19; UN

Doc HRI/GEN/1/Rev6 at 149 (2003)

HRC/GC/20 Human Rights Committee, General Comment No 20; UN

Doc HRI/GEN/1/Rev6 at 151 (2003)

HRC/GC/22 Human Rights Committee, General Comment No 22; UN

Doc HRI/GEN/1/Rev6 at 155 (2003)

HRC/GC/24 Human Rights Committee, General Comment No 24; UN

Doc HRI/GEN/1/Rev6 at 161 (2003)

HRC/GC/27 Human Rights Committee, General Comment No 27; UN

Doc HRI/GEN/1/Rev6 at 174 (2003)

HRC/GC/28 Human Rights Committee, General Comment No 28; UN

Doc HRI/GEN/1/Rev.6 at 179 (2003)

HRC/GC/31 Human Rights Committee, General Comment No 31; UN

Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004)

HRC/GC/34 Human Rights Committee, General Comment No 34; UN

Doc CCPR/C/GC/34/CRP 2 (2010)

Committee for the Elimination of Discrimination Against Women

CEDAW/GR/19 Committee on the Elimination of all Forms of Discrimination

Against Women, General Recommendation No 19; UN Doc

A/47/38 at 1 (1993)

CEDAW/GR/23 Committee on the Elimination of all Forms of Discrimination

Against Women General Recommendation, General

12
 Recommendation No 23; UN Doc A/52/38/Rev1 at 61

(1997)

Committee for the Elimination of Racial Discrimination

CERD/GR/30 Committee on Elimination of Racial Discrimination, General

Recommendation No 30; UN Doc CERD/C/64/Misc.11/rev3

(2004),

Domestic Laws

Sweden

AA-Sweden Sweden: Aliens Act (2005:716) [Sweden]

Finland

AA-Finland Finland: Act No. 301/2004 of 2004, Aliens Act [Finland]

United States

INA-US United States: Immigration and Nationality Act [United

States of America]

Domestic Cases

India

Kali Kali Charan Sharma v. King-Emperor AIR 1927 All 654

Shetty R.D. Shetty v International Airport Authority, 1979 SCR

(3)1014

Kendra Kendra, Dehradun and others v. State of UP (1985) 3 SCC

545

Subhash Kumar v. State of Bihar (1991) 1 SCC 598

USA

13
Wisconsin Wisconsin v. Mitchell 508 US 476, 484-85 (1993)

Chaplinsky Chaplinsky v. New Hampshire 315 US 568, 572 (1942)

Miller Miller v. California 413 US 15 (1973)

Brandenburg Brandenburg v. Ohio 395 US 444, 447 (1969)

Kolender Kolender v. Lawson 461 US 352

Johnson Texas v. Johnson 491 US 397, 414 (1989)

Terminiello Terminiello v. Chicago 337 US 1, 4 (1949)

Cox Cox v. Louisiana 379 US 536, 551-52 (1965)

Tinker Tinker v Des Moines Independent Community School

District 393 US 503, 508-09 (1968)

Coates Coates v. Cincinnati 402 US 611, 615 (1971)

International Cases & Communications

A fri ca n C o m m i ssi o n o n H u m a n a n d P e o p l e ’s R i g h ts

CRP Constitutional Rights Project and Civil Liberties Organization

and Media Rights Agenda v. Nigeria, Communications Nos

140/1994, 141/1994, 145/1995 (1999)

Dibagula Dibagula v. The Republic (2003) AHRLR 274 (TzCA 2003)

UID Union Interafricaine des Droits de l‟Homme and Others v

Angola, Communication No 159/1996 (1997),

RAP Rencontre Africaine pour la Défense des Droits de l‟Homme

c. Zambia, communication no. 71/92 (1996)

Committee on the Elimination of Discrimination Against Women

Kell Kell v. Canada (CEDAW 19/08)

14
Vertido Vertido v. Philippines (CEDAW 18/08)

Yildirim Yildirim v. Austria (CEDAW 6/05)

AT AT v. Hungary (CEDAW 2/03)

Goekce Goekce v. Austria (CEDAW 5/05)

VK VK v. Bulgaria (CEDAW 22/08)

Vertido Vertido v the Philippines (CEDAW 18/08)

Sahide Sahide Goekce v. Austria (CEDAW 5/05)

Fatma Fatma Yildirim (deceased) v. Austria (CEDAW 6/2005)

European Court of Human Rights

Av A v. United Kingdom, (App. 25599/94), 23 September 1998,

(1999) 27 EHRR 611, ECHR 1998-VI

Akkoc Akkoc v. Turkye, (Apps. 22947/93 and 22948/93), 10

October 2000, (2002) 34 EHRR 1173, ECHR 2000-X

Aksoy Aksoy v. Turkey, Reports 1996-VI,

Aktas Aktas v. Turkey, Reports 2003-V

ARM ARM Chappel v. United Kingdom (1987) 53 EHRR 241

Assenov Assenov and Others v. Bulgaria, Reports 1998-VIII, para

102

Bahaddar Bahaddar v. the Netherlands, Rep. 1998-I, No. 78

Budayeva Budayeva v. Russia, App. Nos 15339/02, 21166/02,

20058/02, 11673/02 and 15343/02 (ECtHR, 20 March 2008)

15
Gldani Case of 97 members of the Gldani Congregation of

Jehovah‟s Witnesses and 4 Others v. Georgia, Application

No. 71156/01 (2007)

Costello Costello-Roberts v. United Kingdom 25 March 1993, Series

A No 247-C, (1994) 19 EHRR 112

Cruz Cruz Varas Sweden, Series A, No 201 (1991) and Ahmed v

Austria (Grand Chamber), Reports 1996-VI

DH DH and others v Czech Republic (2008) 47 EHRR 3

Dichand Dichand and others v. Austria (App. 29271/95), 26 February

2002

Eon Eon v. France, (App. 26118/10), 14 March 2013

FDP Freedom and Democratic Party (OZDEP) v. Turkey (2000)

31 EHRR 27

Gaygusuz Gaygusuz v Austria (1996) 23 EHRR 364

Giniewski Giniewski v. France (2006) 45 EHRR 23

Handyside Handyside v. United Kingdom (App. 5493/72), 7 December

1976, Series A No 24, (1979-80) 1 EHRR 737

Hertel Hertel v. Switzerland (App. 25181/94), 25 August 1998,

EHRR (1988)

IA IA v. Turkey (2007) 45 EHRR 703

Ireland Ireland v. The United Kingdom, Series A, No 25 (1978), para

167

16
Jersild Jersild v. Denmark, (App. 15890/89), September 24, 1994,

Series A No. 298, (1994) 19 EHRR 1

JCR Juridical Condition and Rights of Undocumented Migrants

(Advisory Opinion), Series A, No 18 (2003), paras 97 ff

Kulis Kulis v. Poland, (App. 15601/02), 18 March 2008

Kutlular Kutlular v. Turkey App no. 73715/01 (ECHR , 29 April 2008)

Loizidou Loizidou v. Turkey (Preliminary Obligations) (1995) 310 Eur

Court HR (ser A)

Mikheye Mikheye v. Russia, (App. 77617/01), 26 January 2006,

paras 107-10

Moldovan Moldovan and Others v Romania, Application Nos 41138/98

and 64320/01 (2005)

Murphy Murphy v. Ireland (2004) 38 EHRR 212

Nacchova Nachova and Others v Bulgaria, Reports 2005-VII

Oneryildiz Öneryildiz v. Turkey, App. No. 48939/99 (ECtHR Grand

Chamber, 30 November 2004); (2005) 41 EHRR 20

Otto Otto-Preminger-Institut v. Austria (1994) 19 EHRR 34

Refah Refah Partisis v. Turkey (2003) 37 EHRR 1

Scharsach Scharsach and News Verlagsgesellschaft mbh v. Austria,

(App. 39394/98), 13 November 2003, (2005) 40 EHRR 569,

ECHR 2003-XI

Secic Secic v. Croatia, (App. 40116/02), 31 May 2007, (2009) 49

EHRR 408, ECHR 007-nyr

17
Snyder Snyder v. Phelps 131 S Ct 1207, 1213, 1219 (2011)

Steel Steel & others v. The United Kingdom (App. 24838/94)m 23

September 1998, EHRR (1998)

Sunday Sunday Times v. UK (1979-80) 2 EHRR 245, Series A, No

30

Surek Surek v. Turkey, Application No 26682/95, Judgment of 8

July 1999

Tas Tas v. Turkey, Application No. 24396/94 (2000), paras 100

ff.

Tusalp Tusalp v. Turkey, (App. 32131/08), 21 May 2012

Valasinas Valasinas v. Lithuania, Reports 2001-VIII, para 117

Van Van der Ven v. The Netherlands, Reports 2003-II, paras 53

Ff

Wingrove Wingrove v. United Kingdom (1997) 24 EHRR 1

Zana Zana v. Turkey (1999) 27 EHRR 667

Human Rights Committee

Adam Adam v. The Czech Republic, CCPR/C/57/D.586/1994 (23

July 1996)

Adonis Adonis v. Philippines (1815/08)

Ahani Ahani v. Canada Communication No. 1051/2002, 24 March

2004

Althammer Althammer v Autria CCPR/C/37/D/208/1986 (9 November

1989)

18
Andric Andric v. Sweden, application no.45917/99, 23 February

1999

APA APA v. Spain (433/90) para 6.2

RROeks RROeks v Netherlands, CCPR/C/29/D/172/1984 (9 April

1987)

Cv C v Australia, Communication No 900/1999 (2002)

CF CF v. Canada (1118/81);

Dominican Dominican Republic, Concluding Observations,

CCPR/CO/71/DOM, 26 April 2001

Dermit Dermit Barbato v. Uruguay (84/81)

Dissanayake Dissanayake v. Sri Lanka Communication No. 1373/2005,

UN Doc CCPR/C/93/D/1373/2005 (HRC)

Simunek Eg Simunek et al. v. The Czech Republic,

CCPR/C/54.D.516/1992 (19 July 1995)

Fillastre Fillastre and Bizoarn v. Bolivia (336/88)

Gauthier Gauthier v. Canada Communication No. 633/1995, UN Doc

CCPR/C/65.D/633.1995 (1999) (HRC)

JRT JRT & WG Party v. Canada, 104/1981 UN Doc

CCPR/C/18/D/104/1981 (1983)

Kindler Kindler v. Canada, CCPR/C/48/D/470/1991, 5 November

1993

Lansman Lansman v. Finland, 511/1992 UN Doc

CCPR/C/49/D/511/1992 (1994)

19
Leonid Leonid Svetik v. Belarus Communication No. 927/2000, UN

Doc CCPR/C/81/D/927/2000 (2004) HRC

Maroufidou Maroufidou v Sweden, Communication No 58/1979, UN Doc

CCPR/C/12/D/58/1979, IHRL 1734 (UNHRC 1981)

Marques Marques de Morais v. Angola, (1128/02)

Mauritian Mauritian Women‟s Case (35/78)

Ominayak Ominayak et al v. Canada (167/84)

Pratt Pratt and Morgan v. Jamaica (210/86, 225/87) para 12.3

Randolph Randolph v. Tongo (910/00)

Shin Shin v. Republic of Korea (926/00)

Singarasa Singarasa v. Sri Lanka, 1033/2001 (2004)

Wackenhein Wackenhein v. France Communication No. 854/1999, UN

Doc CCPR/C/75/D/854/1999 (2002) (HRC)

Wilson Wilson v. The Philippines, 868/1999 (2003)

Zalesskaya Zalesskaya v. Belarus Communication No. 1604/2007 UN

Doc CCPR/C/101/D/1604/2007 (2011)

Inter-American Court of Human Rights

Mayagna The Mayagna (Sumo) Awas Tingni Community v. Nicaragua

(Ser. C No. 79), Tribunal: Inter-American Court of Human

Rights (2001)

Tristan Tristan Donoso v. Panama (2009) Series C No. 193 para

112

20
Velasquez Velasquez-Rodriguez v. Honduras, Series C, No 4 (1988),

paras 175-76

International Court of Justice

Barcelona Barcelona Transaction (Second Phase) [1970] ICJ Rep 3,

32

Gabcikovo Case Concerning the Gabčikovo-Nagymaros Project

(Hungary v. Slovakia) 1997 ICJ 92 (Separate Opinion of

Judge Weeramantry) para. A(b)

Fisheries Fisheries Case (United Kingdom v Norway) [1951] ICJ Rep

116

Nuclear Nuclear Tests (Austi. and N.Z. v Fr.) (1974) I.C.J. Reports

99-133

South-West South-West Africa Cases (Second Phase) [1966] ICJ Rp 6,

293 and 299-300

International Criminal Tribunal for Yugoslavia

Prosecutor Prosecutor v. Anto Furundzija, judgment of 10 December

1998, ICTY, Trial Chamber, paras 151

CERD

Ahmed Ahmed Habassi v Denmark (CERD 10/97)

Sefic Sefic v Denmark (CERD 32/03)

Durmic Durmic v Serbia and Montenegro (CERD 29/03)

Adan Adan v Denmark (CERD 43/8)

Books and Publications

21
Kalin W Kalin and J Kunzli, The Law of International Human

Rights Protection (2011)

RROwnlie I RROwnlie, Principles of International Law (7th edition 2008)

Doehrin K Doehring, Volkerrecht, 2nd edn (2005)

Shwa M Shaw, International Law, 6th edn (2008)

Joseph S Joseph and M Castan, The Internaitonal Covenant on Civil

and Political Rights, 3rd edn (2014)

Incitement to Hatred book

Max Max Plank Rule of Law, Simon Chesterman, para 2 page

1014, Volume VIII, Oxford

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Growing Impact of Non-State Actors on the International and

European Legal System (2003 Hague Joint Conference on

Contemporary Issues of International Law). The Hague:

T.M.C. Asser Press, 2004.

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(United Nations Economic and Social Council: New York,

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(2010)

Concado A Concado Trindade, The Application of the Rule of

Exhaustion of Local Remedies in International Law: its

22
 Rationale in the International Protection of Individual Rights

(1983)

McAdam J McAdam, Complementary Protection in International

Refugee Law, Oxford Monographs in International Law

(2007)

Guy Guy S Goodwyn-Gill, Jane McAdam, The Refugee in

International Law, 3rd edn (2007)

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Content of the Principle of Non-Refoulement: Opinion‟ in

Feller, Turk and Nicholson (eds) Refugee Protection in

International Law, (2003)

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law, (2005)

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in L Henkin (ed), The International Bill of Rights (1981)

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Rights (Oxford University Press, 6th ed, 2010) 430

Journals

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America: The lessons of Pragmatism‟, (1991) 3 INT‟L J. REF.

L. 185, 187

Ramcharan B Ramcharan, „The Right to Life‟ (1983) 30 NILR 297, 305

23
 Miscellaneous

Harbhajan "Harbhajan in three-Test ban for racist remark", The

Guardian, available at:

http://www.theguardian.com/sport/2008/jan/07/cricket.sport1,

Last accessed on 30.8.2015; "Liverpool's Suarez fined,

suspended over racist remarks", CNN, Available at:

http://edition.cnn.com/2011/12/20/sport/football/suarez-

racism/, Last accessed on 29.8.2015

24
 SUMMARY OF ARGUMENTS
ISSUE 1: Bilkans have subsidiary protection under CIL. Ronpalia violated there right to

life and right to be protected from environmental harm and disasters. Ronpalia's conduct

of deportation constitutes collective expulsion. It has incurred international responsibility.

ISSUE 2: Ronpalia failed to apply due diligence in protecting women‟s right to dignity. It

failed to investigate and provide effective remedy. CEDAW prohibits gender based

violence. Ronpalia failed to protect women‟s right to religion and association.

ISSUE 3: Restrictions on Travis Dale speech violate his freedom under Article 19 of ICCPR.

His speech was not an incitement of hatred. The restrictions imposed were not necessary,

prescribed by law or in furtherance of a legitimate aim and created inequality.

ISSUE 4: FQWG performed governmental functions. Sal is a national and ethnic minority.

Her rights were violated by indirect discrimination due to the condition and composition of

the committee. Her right to effective remedy has been violated by selective punishment.

25
 ARGUMENTS ADVANCED

A. ADMISSIBILITY

I. A p p l i ca n t’s cl a i m i s a d m i ssi b l e u n d e r A rti cl e 5 (2 )(a )/(b ) o f OP to

IC C P R

QHRC has the competence to determine questions as to its jurisdictional competence.

The admissibility requirements of the QHRC are similar to those provided in Article

5(2)(a)/(b) of the OP to ICCPR.1 These articles impose two rules of admissibility. Firstly,

a complaint shall not be considered if it is being examined under another procedure of

international investigation.2 Secondly, the complainant must have exhausted all

available domestic remedies.3

a. No communication is made or being considered elsewhere.

In this case, none of the four claims are being simultaneously handled by any other

procedures of international investigation or settlement. Hence the requirements of

Article 5(2)(a) are complied with.

b. All available domestic remedies are exhausted

Domestic remedies within the meaning of Article 5(2)(b) must only be exhausted to the

extent that they are both available and effective. 4 Applicants are not required to pursue

1
Facts[1]
2
Art.5(2)(a) of OP
3
Art.5(2)(b) of OP
4
APA[6.2]

26
remedies that are objectively futile. 5 The burden is upon the State to prove that the

remedies are effective.6 Additionally, the question of effectiveness of remedies is

dependent upon merits especially when the adequacy of the State‟s processes and

laws are being challenged.7

With respect to Claim II and IV all domestic remedies have been exhausted. In these

claims a final judicial decision has been rendered 8 and there remains no available

appeal.9

With respect to Claim I applicant need not exhaust domestic remedies because they are

inapplicable de jure or de facto.10 State authorities in Ronpalia were essentially acting with

impunity, without regard for any notion of the rule of law. This is evidenced from the arbitrary

decision of Ronpalian Senate to deport all displaced Bilkans without any regard for their

human rights.11 In such situations the pursuit of domestic remedies is objectively futile.12

Further, there is a constant fear in the minds of displaced Bilkans that they would be sent

back at any moment. In this light, it is unreasonable to expect the

5
Pratt[12.3]
6
CF; Randolph
7
Goekce; Yildrim

8
Facts[10&22]

9
Concado[58]
10
Dermit[9.4]
11
Facts[6]
12
Pratt[12.3]

27
applicant to seek remedies that will not crystalize until after irreparable damage to the

rights of displaced Bilkans has occurred.13

With respect to Claim III applicant need not exhaust an unreasonably prolonged

remedy. Travis Dale is still awaiting the outcome of proceedings that were instituted

against him in early 2014. Such long delay for the adjudication of the case at first

instance, discounting the availability of subsequent appeals, is unreasonable

prolonged.14 Overwhelming workload and continuous postponement of Travis Dale‟s

case15 makes the BHC ineffective for the purposes of Article 5(2)(b).

II. The complaint is not manifestly ill-founded

a. The victim requirement rule is satisfied

The victims being represented by RRO are actually affected16 on account of Ronpalia‟s

breach of her IHRL obligations. Ronpalia‟s liability extends to all persons who are subje

ct to her jurisdiction and within its territory.17 Hence irrespective of their nationality, Sal

and the displaced Bilkans are protected under Ronpalias treaty obligations.18

13
Ominayak
14
Fillastre[5.2]
15
Facts[17]
16
Mauritian[9.2]
17
ICCPR[art.2(1)]
18
Loizidou

28
 b. RRO satisfies the locas standi requirement

Under SHR convention, NGOs may submit to the QHRC on behalf of victims.19 RRO

thus, is qualified to act on behalf and represent the victims with respect to Claims I to IV.

Additionally all the claims were introduced before QHRC within a reasonable period.20

B. MERITS

I.Removal, deportations of Bilkans and refusal to grant them refugee status is

i n co n si ste n t wi th B ro n ko l i a ’s i n te rn a ti o n a l o b l i g a ti o n s a n d i s i
n vi o l a ti o n o f th e i r ri g h ts

a. Ronpalia breached its obligations by depriving Bilkans of their status rights

Bilkans migrants fall outside the 1951 Refugee Convention21 and the 1967 Protocol22.

They are entitled to complimentary protection under international law.23 Bilkans are

„environmental refugees‟ and are granted a status of subsidiary protection under

customary international law. Such persons enjoy similar levels of protection as provided

to a refugee under the Refugee Convention.24

19
Facts[1]
20
HRC RoP, rule 96(c)
21
Refugee Convention.

22
UN General Assembly, Protocol Relating to the Status of Refugees, 31 January 1967, United Nations,
Treaty Series, vol. 606, p. 267
23
McAdam[21]
24
McAdam[11]

29
Customary law is established when „specially affected States‟25 engage in the same

practice.26 African and Central American States are „specially affected States‟ as they

are severely affected by climate change.27 Most of such states have ratified the OAU

Convention28 and the Cartagena Declaration29. These regional laws are customary in

nature30 and include „environmental refugees‟ within in their scope of application 31 and

protection32. Further, there exists significant practice of developed states of providing

temporary protection and asylum to people displaced by environmental causes 33 like

disasters, as in the case of Bilkans.34

25
Fisheries[116, 131, 138]
26
North Sea Continental Shelf Cases[74].
27
The Regional Impacts of Climate Change: An Ass essment of Vulnerability, IPCC, 1997 - R.T.Watson,

M.C.Zinyowera, R.H.Moss (Eds), Cambridge University Press, UK. pp 453.

28
OAU
29
Cartagena
30
Guy[185, 187]
31
OAU[art.1(2)]
32
McAdam[213]

33
AA-Sweden[s.2(3)]; AA-Finland[s.88]; INA-US[s.244; 8 § 1254]; Council of Europe, „Discussion Paper on
Subsidiary Protection‟ (1999) 41 ASILE 6 See if web links or their years of passing of these acts should

also be added
34
Compromis, Page 2, Para
4

30
 b. Ronpalia has violated the rights of Bilkans

Ronpalia is obligated to protect the right to life35 of Bilkans. It‟s a „supreme right‟36

which enforces a positive obligation37 upon the state to adopt measures for protection of

life of all individuals,38 including foreigners.39 This right is non-derogable40 and entails a

non-refoulment obligation.41 The obligation of non-refoulement is absolute under IHRL

and available to persons under subsidiary protection.42

The obligation to protect life includes protection from environmental harm 43 and natural

disasters.44 Environment is an essential part of right to life 45 and necessitates a

„survival requirement‟.46 States are to ensure that displaced persons are relocated to

35
ICCPR[art.6], UDHR[art.3]
36
HRC/GC/6[1]
37
ICCPR Commentary, Pg. 167
38
ICCPR[art.2(1)]
39
Montevideo[art.9]
40
ICCPR[art.4(2)]
41
Ahani; HRC/GC/31[12]
42
Elihu; Hathaway[363]
43
Öneryildiz[71–72]
44
Budayeva
45
Gabcikovo[A(b)]; Kendra[545]; Subhash[598]
46
Ramcharan[297, 305]; Dinstein,[115]

31
environmentally safe areas.47 Ronpalia violated the right to life of Bilkans by deporting them

to areas that were unfit for habitation or survival due to global warming. 48

c. Removal and deportation of Bilkans was prohibited under IHRL

Ronpalia is obligated to exercise its powers of expulsion in accordance with principles of

good faith, proportionality and justice, while respecting the fundamental rights of

Bilkans.49

Article 13 of the ICCPR mandates expulsions to be in „accordance with the law‟.50 It

aims to prevent arbitrariness in procedure and prohibits collective or mass expulsions. 51

Collective expulsion is any measure compelling aliens, as a group, to leave a country,

without a reasonable and objective examination of each individual case of the group.52

Ronpalia‟s act of deporting all Bilkans migrants without according them an individual

status determination is an act of collective expulsion. Such collective expulsion of non-

nationals53 is violative of ICCPR54 and is prohibited under IHRL.55 Further, even where

47
(2006) UN doc CCPR/C/UNK/CP/1. (HRC‟s Concluding Observations on Kosovo)
48
Facts[4]

49
Sixth report on the expulsion of aliens, Mr. Maurice Kamto, Special Rapporteur, International Law
Commission Sixty-second session, 2007 at page 6.
50
Maroufidou
51
HRC/GC/15[13.03]
52
Andric[1]
53
Dominican[16]

54 HRC/GC/15[10]

55
Id; CERD/GR/30[26]; UID[14 ff]

32
the migrants concerned are illegal entrants, State's right to expel foreigners does not

justify the manner of mass removal.56

Additionally, where there exists a substantial risk of irreparable damage57 or violation of

right to life in the destination country58, expulsion or removal of any person is prohibited

under the ICCPR.59 Such protection is available to asylum seekers and refugees de jure.60

Ronpalia‟s non-refoulement obligations extend to all protected persons under

international law.61 Bilkans have the right to subsidiary protection in Ronpalia. Such

conduct signifies a breach of her international obligations.

d. Ronpalia has committed an internationally wrongful act and has incurred

responsibility

Ronpalia‟s conduct of deportation of Bilkans constitutes an internationally wrongful act.62

The essential conditions for imposition of responsibility are satisfied. Firstly, the act of

deportation was attributable to the State as it was performed by the government. 63

Secondly, Ronpalia breached its obligation of non-refoulement and protect the rights of

Bilkans.

56
RAP; UID
57
Kindler[13.2]; HRC/GC/31; Cv[8.5]
58
Bahaddar
59
ICCPR[art.2]
60
Cruz;
61
Elihu[127]
62
ILCD[art.2]
63
Facts[6]

33
International responsibility arises when return measures constitute a crucial element in

the chain of events leading to human rights violations in the receiving state. 64 Ronpalia

failed in its duty to act in good faith65 and has incurred responsibility for death of 103

Bilkans deportees, who died of starvation and diseases.66

II.T h e g o ve rn m e n t o f B ro n ko l i a h a s fa i l e d i n i ts o b l i g a ti o n to p ro
te ct wo m e n ’s ri g h ts to

association, religion and dignity in relation to the Ronpalian Festival incidents

Women‟s right to personal autonomy, in particular regarding choices about her own

body flows from her right to privacy.67 Third parties regulation upon women to wear long

and thick dresses during the Ronpalian festival violates a number of their rights under

ICCPR.68 Ronpalia‟s failure to protect women‟s rights from third party interference69

constitutes a violation of its treaty obligations.

64
Cruz[69]; Kälin[496]

65
Nuclear[99-133]; General Assembly resolution 375 (IV) of 6 December 1949, annex; ILC Draft Declaration
on Rights and Duties of States 1949, Article 13
66
Facts[6]

67
UDHR[art.12]; ICCPR[art.17]; CRC[art.16]; CRPD[art.22]; ACHR[art.11]; ArCHR[art.21]; ECHR[art.8]
68 HRC/GC/28[13]

69 HRC/GC/28[21]

34
 a. Ronpalia failed to protect women’s right to dignity under Article 7 of ICCPR

Torture and inhuman or degrading treatment severely interferes with a person‟s physical or

mental integrity.70 It can negate the very basis of human dignity71 which the IHR treaties

attempts to safeguard.72 In this case, women‟s right to dignity was infringed when they

were subjected to a „deliberate ill-treatment‟73 by group of men who have surrounded

them74 and stripped them naked.75 Such intentional humiliating treatment76 and

harassment77 upon women78 is an „aggravated form of cruel, inhuman and degrading

treatment‟79 and hence constitutes as an act of torture. Nonetheless, stripping the victims

naked is recognised as degrading treatment.80 Article 7 of ICCPR prohibits such acts and

obligates the State Parties to afford protection even when they are inflicted by private

70
HRC/GC/28[2]
71
Kalin[320]

72
UDHR[art.5]; ICCPR[art.7]; CAT; OPCAT; CRC[art.37]; CRPD[art.15]; ACHR[art.5]; ACHPR[art.5];
ArCHR[art.8]; ECHR[art.3]; GC[art.3]; GC-III[art.13-14, 17, 87-99]; GC-IV[art.27, 31-32, 37, 100 and 118 f];

AP-I[art.11&75]; AP-II[art.4]; Rome Statue[art.7(1)(f) and (2)(e) and 8(2)(a)(ii) and (c)(i)];

SICTY[art.2(b)&5(f)]; SICTR[art.3(f)&4(a)]
73
Aksoy[63-64]
74
Facts[9]

75 Id
76 Id
77 Id
78
Aktas[312]
79
Ireland[167]
80
Aksoy[63-64]; Valasinas[117]; Van[53ff]

35
person.81 This obligation to prohibit torture has attained the status of CIL 82, erga

omnes83 and jus cogens.84

Obligations under Article 7 are non-derogatory85 and allows no limitation.86 Ronpalia is in

breach of its obligations under this article for four reasons. Firstly, Ronpalia failed to provide
the victims with effective protection against ill-treatment by third parties although it was

aware of the risk87 and in a position to avert it88 because the acts happened within its

jurisdiction.89 Secondly, Ronpalia failed in its obligation to prevent torture90 by not taking

necessary measures such as training police and doctors.91 Thirdly, Ronpalia failed in its

obligation to investigate, prosecute and punish the perpetrators.92 This infringes the

individual right of torture victims to have acts of torture criminally prosecuted. 93 Further,

mere investigation is not sufficient. Investigation has to be thorough with the capacity to

81
HRC/GC/20[2]
82
Kalin[320]
83
Prosecutor[151]
84
Id[153]; HRC/GC/24[10]
85
ICCPR[art.4]
86
HRC/GC/20[3]
87
Facts[8]
88
Moldovan[98]; Gldani[96]; Costello; Av
89
Facts[7]
90
Prosecutor[148]
91
HRC/GC/20[10]; CO on the United States (2006) UN doc CCPR/C/USA/CO/3/Rev. 1, para 14; Hungary

(2010) UN doc CCPR/C/HUN/CO/5, para 14; CAT, Art 16 in conjunction with Art 10
92
Singarasa[7.4]; Assenov[102]; Akkoc[118]; Mikheye[107-10]
93
Aksoy[98], Velasquez[175-76]

36
lead to the identification of the perpetrators.94 Failure of CID to identify the culprits95

infringes the aforementioned obligation to investigate. Fourthly, Ronpalia failed to fulfil

its obligation to compensate the victims of torture96 as evidenced from the

Constitutional Court‟s ruling wherein it failed to provide any reparations to the victims. 97

b. Ronpalia failed to protect women’s rights under Article 1 of CEDAW

Gender-based violence against women during the Ronpalia festival98 constitutes

discrimination under CEDAW 99 and ICCPR.100 It is a form of discrimination that is

incompatible with the dignity of the human person101 and must be eliminated.102 This

94
Secic
95
Facts[9]
96
HRC/GC/20[14]; Wilson [9]; Velasquez; Tas[100 ff]
97
Fact[10]
98
Facts[9]
99
HRC/GC/19[7&24(a)]; Kell; Vertido; Yildirim; AT; Goekce; VK

100
Concluding Observations on Japan (2008) UN doc CCPR/C/JPN/CO.5, para 15; Islamic Republic of Iran (2011)

UN doc CCPR/C/IRN/CO/3, para 11; Concluding Observations on Yemen (1995) UN doc

CCPR/C/79/Add.51, para 14; Concluding Observations on Guatemala (1996) UN doc CCPR/C/79/Add.63, para

33; Concluding Observations on Japan (1998) UN doc CCPR/C/79/Add. 102, para 30; Concluding

Observations on United Republic of Tanzania (1998) UN doc CCPR/C/79/Add. 97, para 11; Uruguay (1998 )

UN doc CCPR/C/79/Add.90, para 9D, and Venezuela (2001) UN doc CCPR/CO/71/VEN, para 20; Concluding

Observations on Poland (1999) UN doc CCPR/C/79/Add.110, para 14; Concluding Observations on Cyprus

(1998) UN doc CCPR/C/79/Add.88 para 12

101 Vertido[8.7]

102
Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on

25 July 1993, para 18

37
principle of non-discrimination has received the status of CIL103 and jus cogens.104

Ronpalia failure to apply due diligence105 with respect to private acts of gender-based

violence106 although it „knew or should have known’107 about the incidents violates its

IHL obligations.108 Additionally, failure to investigate-prosecute-punish perpetrators of

gender-based violence has given rise to a culture of impunity109 in Ronpalia.

c. Ronpalia failed to protect women’s right to religion and association

Article 18 protects freedom of thought, conscience, and religion.110 This right is RRO and

encompasses freedom of thought on all matters.111 Religious requirement upon women to

wear thick garments in a warming world causes a ‘structural problem that impacts adversely

on the public participation of women’.112 Such religious requirement jeopardises

103 RROwnlie[572-3]; Doehring[20]; Shaw[286-7]

104 JCR[23]

105
CEDAW/GR/19[24]; C Benninger-Budel (ed), Due Diligence and Its Application to Protec t Women from
Violence (2008)
106 AT[4.2]

107
Sahide[12.1.4]; Fatma[12.1.4]
108 CEDAW[art.1]; CEDAW/GR/19[24]

109
Report on Mexico produced by the Committee on the Elimination of Discrimination against Women under article 8

of the Optional Protocol to the Convention, and reply from the Government of Mexico

CEDAW/C/2005/OP8/Mexico (27 January 2005) paras 66 and 261.

110 ICCPR[art.18]

111 HRC/GC/22[1]

112 CEDAW/GR/23; Book ICCPR at 752 22.59

38
women‟s civil rights under ICCPR.113 Any counter-argument that women don‟t have the

right to associate in the festival is invalid because Article 18 relied upon to justify

discrimination against women.114 In this light the Constitutional Court‟s ruling115 violates

ICCPR. Further, Ronpalia failed in its obligation to protect women‟s rights from the rules of

third parties116 by failing to eradicate customs that interfere with women‟s freedom. 117

III.T h e g o ve rn m e n t o f B ro n ko l i a h a s i n te rfe re d wi th D a n n y B e n a n
d o th e rs’ (D a n n y’s)

right to freedom of expression (FOE), equality before the law and the rule of law

a. Restrictions on Travis Dale’s speech violates his freedom enshrined in Articl e 19 of

ICCPR

International Law protects FOE.118 This freedom is essential in a democracy119 as it

ensures individual self-fulfilment,120 as well as a pluralistic, tolerant society.121 The right to

hold and articulate opinions as provided by Article 19 of ICCPR is very RROad.122 States

are obligated to guarantee FOE of all kind123 and any restriction on FOE must comply

113 HRC/GC/28[13]

114 HRC/GC/28[21]

115 Facts[10]

116 HRC/GC/27[6]

117 HRC/GC/17[3]

118
UDHR[a.]; ICESCR[a.15(3)]; ICCPR[a.19&20]; CRC[a.13]; CRPD[a.21]; CERD[a. 5(d)(viii)];

ICRMW[a.13(2)]; ACHR[a.13]; ACHPR[a.9]; ArCHR[a.32]; ECHR[a.10]

119 Handyside[48]; HRC/GC/34[2];

120 ICCPR Commentary at page 590; Handyside

121 Zana[51]; CRP[36];

122 HRC/GC/34[11]; ECHR commentary page 435

123 HRC/GC/34[7&11]; ECHR commentary page 435

39
with Article 19(3).124 Travis Dale‟s performance in the theatre125 as well as his speech on

the radio126 are protected under Article 19.127 His arrest128 pursuant to his speech is a

restriction on his right of FOE.129 Such restriction, in order to be valid, has to satisfy the

three prong test: be prescribed by law,130 in furtherance of a legitimate aim 131 and be

necessary in a democratic society.132 Additionally, Travis Dale‟s speech is not hate speech

under Article 20 and Article 4 of ICCPR and CERD respectively. Arguendo, if Travis Dale‟s
speech is hate speech, it still has to satisfy the aforementioned three prong test of Article

19.133

b. Travis Dale’s speech is not incitement to hatred

Incitement is speech that promotes feelings of hatred or enmity between groups. 134 It has

to be determined on a case by case basis135 after evaluation of the speech itself and its

124 HRC/GC/34[22]

125 Facts[14]

126 Facts[17]

127 HRC/GC/34

128 Facts[14&17]

129 Zana; HRC/GC/34[9]

130
A. 19(3); GC/34/ para 22; Sunday Times v. UK (1979-80) 2 EHRR 245, Series A, No 30, para 49; Book

Incitement in International Law page 78;

131 HRC/GC/34[22]

132 Hertel; Steel; Handyside[48]

133 HRC/GC/34[50]

134 Kali[654]

135 JRT[8]

40
context.136 Firstly, Travis Dale‟s performance in the theatre is not incitement because it

does not negatively stereotypes Bilkans as inferior.137 On the contrast, Travis Dale‟s

performance

„makes a meaningful contribution to public debate‟.138 His performance was not targeted

against any particular group139 but was exercised in a context of respect140 and in the spirit

of tolerance141 in order to portray the ethnic diversity of Ronpalia.142 Secondly,

Travis Dale‟s speech does not incite violence against women. Travis Dale‟s remarks about

women were made long after the conclusion of Ronpalian festival. In such context,143 it is

not possible that his speech would produce imminent lawlessness.144 Further, there is no

evidence to suggest that any violence against women took place after Travis Dale‟s speech.

Thirdly, Travis Dale‟s use of a derogatory remark to describe Bilkans is protected by Article

19 because it contributed to „pluralistic debate‟145 about the application of a domestic law

and hence is not gratuitously offensive.146 Fourthly, his comments against the President,

136 Murphy; Wisconsin[484-85]

137 Book incitement to hatred 17

138 Otto[49]; Wingrove[58]; IA[29]; ARM[241]; Giniewski[24, 28]; Chaplinsky[572]

139 Book Incitement at 18

140 Tristan[112]

141 Otto

142 Facts[11]

143 Murphy; Wisconsin[484-85]; Lansman; Miller; Dibagula[16]

144 Brandenburg[447];

145 Jersild

146 Giniewski[43&52]; Kutlular[47]

41
a public figure who, as such, is subject to criticism and opposition,147 is protected by

Article 19.148

c. Restrictions on Travis Dale’s speech fail to pass the three prong test of Article

19 and hence, invalid

i) Restrictions on Travis Dale’s speech are not prescribed by law for three
reasons.

Firstly, the restrictions are not formulated with sufficient precision. 149 They fail

to define the words „stereotype‟150 and „subversive statements‟.151 This in

turn deprives the individuals to regulate their conduct to a reasonable

degree.152 Secondly the restrictions are overRROad153 as they have a

capacity to proscribe permissible speech.154 Thirdly, by failing to provide

guidelines the restrictions provide its administrators an unfettered

discretion155 which is evidenced from the arbitrary application of these

restrictions on Travis Dale and non-application on TNC and Rudey.156

147 Eon; Tusalp; Dichand[39]; Scharsach; and Kulis.

148 Marques[6.8]

149 HRC/GC/34[25]

150 Facts[13]

151 Facts[17]

152 Sunday[51]; Kolender[357]; HRC/GC/34[25]

153 Murphy[212]

154
Snyder[1213&1219]; Giniewski[27&59]
155 HRC/GC/34[25]

156 Facts[15&21]

42
 ii) Restrictions are not in furtherance of a legitimate aim. They use the ground of

„rights and reputation of others‟ and „public order‟ as a pretext to curb speech

that contributes to public debate.157 Government cannot prohibit FOE simply

because society finds the idea itself offensive or disagreeable.158 In this light, the

Amendment lacks a legitimate aim because its aim is to calm the prevailing

societal angst against Travis Dale‟s performance.159 Additionally, the ground of

„public order‟ can be invoked to proscribe only such speech that advocates use

of force or when imminent lawless action is the likely outcome. 160 As the

criticism of President does not hinder the smooth functioning of the society161

the public order exception cannot be invoked by the Public Order Act.

iii) Restrictions are not necessary in a democratic society. For a restriction to be

necessary it should address a pressing social need162 and be „proportionate to

the legitimate aim pursued‟163 within the given circumstances of the case.164

157 Otto; HRC/GC/34[28]; Leonid

158 Johnson

159 Facts[11&12]

160 Bradenburg

161
Marques[ 6.8]; Zana[667]; Zalesskaya[10.5]; ECOSOC, „The Siracusa Principles on the Limitation and

Derogation Provisions in the International Covenant on Civil and Political Rights‟(1984) UN Doc

E/CN.4/1985/4, para 22-24; Wackenhein[74]; Gauthier[13.5]; Dissanayake

162 Sunday[59]; Zana[51]

163 Silver[97(c)]

164 Jersild; Robin[430]

43
 Speech that offends, shocks, or disturbs is nonetheless protected speech.165
Further the high purpose of free speech is achieved when it induces a condition

of unrest or even stirs people to anger.166 In this light, restriction upon Travis

Dale is not necessary. His speech was intended for a well-informed audience167

and was not motivated to stigmatise the other side to the conflict. 168 Further

there is no direct and immediate connection between the expression and the

threat.169 Additionally, the sanctions imposed are incompatible with Article 19

because it admits no proof of truth as a defence and are too harsh. 170

d. Ronpalia has interfered with Travis Dale’s equality before the law and the rule of
law

Restrictions upon FOE should not be applied in a discriminatory manner. Rule of law

requires that the law must apply to all persons equally, offering equal protection without

prejudicial discrimination.171 The Amendment which prohibited stereotyping was made

applicable only on Travis Dale but not on TNC and Rudey. The amendment is applicable on

both of them because TNC has stereotyped members of Ronpalian religion as a cult of

Barbarians172 and Rudey has stereotyped Sal as a „dark monkey‟ and insulted her on the

165 Handyside[49]; FDP[37]; Refah[89]; Giniewski[43]

166 Terminiello; Cox; Tinker[508-09]; Coates[615]

167 Jersild[23]

168
Surek[14, 18&43]
169 Shin[35]

170 Adonis

171 Max[1014]

172 Facts[15]

44
ground of her race.173 Failure to apply the Amendment upon TNC and Rudey thus

violates Travis Dales equality before law and rule of law

IV T h e g o ve rn m e n t o f B ro n ko l i a h a s fa i l e d i n i ts o b l i g a ti o n to p ro te
ct K i d F a n ko h ’s ri g h t

to non-discrimination in sport.

a. The Government of Ronpalia is answerable for actions of the FQWG

The FQWG has in essence, conducted assessment and imposed punishment for an act

of violence involving racial behaviour.174 Lilia Bank‟s actions are violative of the Anti-

Discrimination Act and constitute a crime against the state. 175 Regulating violence and

imposing punishments upon those who commit such acts, in order to maintain peace

are the most essential and sovereign functions of a State. 176 As FQWG regulated

violence, it has performed functions that are governmental in nature. 177 FQWG can be

ascribed to be the State in the present case.

Further, Ronpalia‟s inaction, despite of this incident being highly reported for racial

discrimination and violent behaviour, reflects that is had delegated its sovereign

functions upon FQWG through implication. Thus, the government of Ronpalia is

answerable for the actions of FQWG.

173 Id[21]

174 Facts[21]

175 Facts[13]

176 Heere

177 Shetty

45
 b. Sal being a minority has the right to non-discrimination under IHRL

Bilkans are national and ethnic minorities in Ronpalia. Minority rights are recognised in

IHRL, most significantly under article 27 of ICCPR178 and the Declaration on the Rights

of Minorities.179 Sal, being a non-citizen, has minority rights.180 Minorities are entitled

to rights of non-declaration and equality.181

As per the Capotorti definition182, the requisite elements for members of a minority group:

(a) numerically inferior to the rest of the population183, (b) possess ethnic, religious or

linguistic characteristics differing from the rest of the population184 and (c) show a sense of

solidarity, directed towards preserving their culture, traditions, religion or language.

Firstly, Bilkans are in a non-dominant position in Ronpalia on account of being subjected

to regular racial abuse185 and poor economic background.186 Secondly, they ethnically

differ from Ronpalians on the basis of race and skin colour.187 Thirdly, they

178 ICCPR[art. 27]

179
UN General Assembly, Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and

Linguistic Minorities, 3 February 1992, A/RES/47/135.

180 HRC/GC/23[5.2]

181
Art. 2(2), Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic

Minorities
182 Capotorti[468]

183 Ballantyne

184 HRC/GC/23[5.1]

185 Id[3]

186 Id[4]

187 Id[3]

46
have consistently shown a sense of solidarity towards their culture and traditions by

choosing to represent or support Bilkans in social events like the QWG.188

c. Ronpalia failed to protect Sal Pull’s right to non-discrimination and equality

The right to non-discrimination and equality is firmly anchored in international law. 189 It

forms a part of jus cogens190 and is autonomous in nature.191 The prohibition on racial

discrimination has been held as CIL.192 Ronpalia is a party to the ICCPR and CERD

and the 1985 Apartheid Convention.193 Her obligations of non-discrimination and

equality to Sal194 are absolute and cannot be set aside by treaty or acquiescence.195

i)Indirect discrimination

The right to non-discrimination entails equality in treatment and outcome.196 Indirect

discrimination occurs when a practice, rule or condition is neutral at face value but

impacts disproportionately upon particular groups.197

188 Id[19]

189 UDHR[art.2]; ICESCR[art.2(2) & 3]; ICCPR[art.2(1), 3, 26-27]; CERD

190 JCR[97ff]

191 HRC/GC/18[12]; RROeks

192 South-West[32]

193 Facts[2]

194 ICCPR[art.2(1)]

195 JCR[100-1 & 173.4]

196 Max[605]

197 Jopesh[575]; HM; Bilka-Kaufhaus GmbH v Weber von Hartz (1986)

47
The FQWG disciplinary committee consisted primarily of Ronpalian nationals.198

„Statistics which appear on critical examination to be reliable and significant‟ are

sufficient prima facie evidence of indirect discrimination.199 There is an established case

of racial tension and conflict in Ronpalia200, with Bilkans being subject to abuse by

Ronpalians.201 Furthermore, there have been violent clashes between Bilkans and

Ronpalians over Sal and Rudey's competition in QWG.202 Online discriminatory posts

on this issue203 clearly highlight the hateful and prejudiced Ronpalian attitude204

towards Bilkans.

Due to these prevailing conditions and the composition of the FQWG disciplinary
committee, Sal being an Bilkans athlete was subject to indirect discrimination on

account of her race, colour and nationality.205 Eyewitness accounts of the disciplinary

meeting referred to the prejudice towards Bilkans,206 Furthermore, discrimination can

exist even without a necessary intention to discriminate.207

198 Facts[22]

199 DH[188]

200 Facts[3]

201 Id[14]

202 Id[19]

203 Id[20]

204 Id[22].

205 Gaygusuz[42]

206 Facts[22]

207 Althammer; Simunek[11.7]; Adam[12.7]

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The treatment meted out to Sal is prohibited under IHRL. Discrimination on account of a

person‟s ethnic origin is a form of racial discrimination.208 Such discrimination by

authorities is not reasonable and objective209 and constitutes inhuman treatment.210

Thus, there lies no legitimate aim on part of Ronpalia in defense of its actions.

ii) Selective punishment and failure to provide effective remedy

IHRL imposes responsibility to conduct thorough and proper investigations in cases of

discrimination211 and violence involving racial attitudes.212 Lilia Bank‟s actions213

towards Sal constitute racial abuse. Referring to another person as „ monkey‟ in a public

place has been held to be degrading and racist behaviour. 214 Such behaviour was in

breach of the „Olympic principle‟215 of prohibition of racial discrimination in sport.

Further, she violated the Anti-Discrimination Act by stereotyping another race.216

States are obligated to ensure that recourse for breach of right should not just established

formally by law, but must be “effective” and provide “everything necessary to remedy it.” 217

208 Kälin[369]

209 DH[176]

210 Moldovan[11]

211 Ahmed; Sefic; Durmic; Adan

212 Nachova[160f]

213 Id[21]

214 Ahmed

215 ICAS[art.1(c)]

216 Id[13]

217 Mayagna[113&114]

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Ronpalia failed in her obligations to provide an effective remedy under the CERD

Convention218 by not acting upon and punishing Lilia Bank for her racist behaviour.

There exists significant practice of states and international organisations for penalizing

racial conduct in sports.219 Such selective punishment is contrary to the principle of

equality220 and highlights the state‟s intent to discriminate against minorities by way of

impunity.

218 CERD[art.6]

219 Harbhajan

220 Moeckli[158]

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 PRAYER

The Applicant hereby requests the Court to declare that:

A. Each of the Applicant‟s claims is admissible.

B. I. The Government of Ronpalia‟s conduct of removal, deportations of Bilkans and

refusal to grant them refugee status was inconsistent with Ronpalia‟s international

obligations and violated of their rights.

B.II. The Government of Ronpalia has failed in its obligation to protect women‟s rights to

association, religion and dignity in relation to the Ronpalian Festival incidents.

B.III. The Government of Ronpalia has interfered with Travis Dale Ben and others‟

rights to freedom of expression, equality before the law and the rule of law.

B.IV. The government of Ronpalia has failed in its obligation to protect Sal Pull‟s right to

non-discrimination in sport.

Counsel for the Applicant

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