357R

INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE 2024 PHILIP C. JESSUP INTERNATIONAL LAW

MOOT COURT COMPETITION

CASE CONCERNING THE STERREN FORTY

THE REPUBLIC OF ANTRANO

(APPLICANT)

v.

THE KINGDOM OF REMISIA

(RESPONDENT)

----------------------------------
MEMORIAL FOR RESPONDENT
----------------------------------
2024
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Memorial for Respondent - Preliminaries

TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................IV
STATEMENT OF JURISDICTION...................................................................................XXIV
QUESTIONS PRESENTED..................................................................................................XXV
STATEMENT OF FACTS...................................................................................................XXVI
SUMMARY OF PLEADINGS..............................................................................................XXX
PLEADINGS..................................................................................................................................1
I. ANTRANO LACKS STANDING TO BRING THE MATTER OF THE
DEPRIVATION OF NATIONALITY OF THE “STERREN FORTY” TO THIS
COURT......................................................................................................................................1
A. Antrano is not a directly injured State................................................................................1
1. Antrano is not a directly injured State under Article 42(a) of the Articles on the
Responsibility of States for Internationally Wrongful Acts [“ARSIWA”].............1
2. Antrano is not an injured State under Article 42(b)(i) of ARSIWA........................1
a. Antrano’s claims under the Convention on the Reduction of Statelessness
[“CRS”] and the International Covenant on Civil and Political Rights
[“ICCPR”] do not involve obligations erga omnes partes....................................2
b. The right to nationality and the right not to be arbitrarily deprived thereof
are not obligations erga omnes...............................................................................3
c. Antrano is not a specially affected State...............................................................4
B. Antrano has no right to institute actio popularis against Remisia for breaches of
obligations erga omnes or erga omnes partes....................................................................4
1. Actio popularis has no basis in international law......................................................4
a. Actio popularis is not a general principle of law...................................................4
b. Actio popularis has not crystallized into custom..................................................7
2. Even if the Court finds that actio popularis has basis under international law,
Antrano’s claim does not involve obligations erga omnes or erga omnes partes.. .8
C. Antrano cannot exercise diplomatic protection over the Sterren Forty............................8
II. REMISIA DID NOT VIOLATE INTERNATIONAL LAW WHEN IT DEPRIVED THE
“STERREN FORTY” OF THEIR REMISIAN CITIZENSHIP IN ACCORDANCE
WITH THE DISRESPECT TO THE CROWN ACT [“DCA”]...........................................9
A. Remisia’s right to deprive the Sterren Forty of their citizenship, based on the DCA, is a
matter falling solely within its domaine réservé and is not governed by international
law........................................................................................................................................9
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1. Although Remisia is a party to the CRS, it validly retained its right to deprive
individuals of their nationality in accordance with the DCA...................................9
a. Remisia’s declaration is valid and does not constitute an impermissible
reservation.............................................................................................................10
b. Consequently, Remisia’s enforcement and interpretation of the DCA is a
purely domestic matter falling outside the scope of the CRS...........................11
2. Remisia’s right to deprive nationality is not limited by any customary norm......11
B. Alternatively, Remisia exercised its right to deprive the Sterren Forty of their
nationality in accordance with its treaty obligations........................................................11
1. The deprivation of the Sterren Forty’s citizenship complied with Article 8(3)(a)
(ii) of the CRS..............................................................................................................12
2. Remisia’s deprivation of the Sterren Forty’s citizenship was not “based on
political grounds”; in this regard, Remisia’s conduct falls within the accepted
limitations to the freedom of expression and assembly under the ICCPR............13
a. The restriction was provided for by law.............................................................13
b. The restriction had a legitimate aim...................................................................14
c. The restriction was necessary and proportionate..............................................15
3. Remisia complied with the due process requirements under Article 8(4) of the
CRS..............................................................................................................................16
C. Remisia did not act arbitrarily when it deprived the Sterren Forty of citizenship..........16
III. ANTRANO VIOLATED INTERNATIONAL LAW WHEN IT DENIED SAKI
SHAW, A REMISIAN CITIZEN, ACCESS TO REMISIAN CONSULAR
REPRESENTATIVES WHILE SHE WAS HELD PRISONER IN ANTRANO.............17
A. Antrano violated Remisia’s rights under Article 36(1) of the VCCR..............................17
1. Article 36(1) of the VCCR applies with respect to the nationals of a sending State.
17
a. Antrano is obliged to recognize Remisia’s grant of citizenship to Saki Shaw as
the grant is consistent with the general principles of law relating to
nationality..............................................................................................................18
b. The effective nationality principle does not negate Antrano’s obligation to
recognize Saki Shaw’s Remisian nationality......................................................19
2. Antrano is bound to recognize Saki Shaw’s Remisian nationality as it is estopped
from claiming otherwise.............................................................................................22
B. In turn, Antrano violated Remisia’s rights to consular notification, visitation, and
communication with respect to its detained national.......................................................23
C. Antrano violated Saki Shaw’s individual rights under the VCCR and ICCPR..............24
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Memorial for Respondent - Preliminaries

IV. REMISIA DID NOT VIOLATE INTERNATIONAL LAW BY REFUSING TO

ALLOW DR. MALEX TO ENTER REMISIA...................................................................24
A. Preliminarily, the Court must refuse to exercise jurisdiction over Antrano’s claims as
the UNSC remains “seized of the matter” underlying Resolution 99997.......................25
B. Remisia did not violate its obligations under Article 25 of the UN Charter when it
refused to allow Dr. Malex’s entry....................................................................................26
1. Resolution 99997 is invalid for failing to conform to substantive and procedural
requirements under Articles 2(7) and 27, respectively, of the UN Charter..........26
a. The UNSC violated the principle of non-intervention by interfering with
matters that are essentially within Remisia’s domestic jurisdiction................27
b. Antrano’s failure to abstain from voting makes Resolution 99997
procedurally infirm...............................................................................................27
2. Resolution 99997 imposes no binding obligations upon Remisia...........................28
a. Resolutions adopted in the exercise of the UNSC’s Chapter VI powers are
generally recommendatory...................................................................................28
b. The terms used by Resolution 99997 impose no binding obligations...............29
c. The UNSC’s refusal to take additional measures against Remisia affirms the
non-binding character of Resolution 99997........................................................30
3. Even assuming Resolution 99997 imposes binding obligations upon Remisia,
Remisia’s act of denying Dr. Malex’s entry is not inconsistent with such
obligations....................................................................................................................30
PRAYERS FOR RELIEF...........................................................................................................33
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INDEX OF AUTHORITIES

FULL CITATION PAGE

TREATIES AND CONVENTIONS

25, 26, 27, 28, 29
Charter of the United Nations, 1 U.N.T.S. XVI.

Convention on Certain Questions Relating to the Conflict of Nationality 17, 18

Law, 179 L.N.T.S. 89.

1961 Convention on the Reduction of Statelessness, 989 U.N.T.S 175. 3, 10, 12, 16

European Convention on Nationality, E.T.S. 166. 18

International Covenant on Civil and Political Rights, 999 U.N.T.S 171. 14, 24

Vienna Convention on Consular Relations, 596 U.N.T.S. 261 21, 23

Vienna Convention on Law of Treaties, 1155 U.N.T.S. 331. 10, 30

Statute of the International Court of Justice, 33 U.N.T.S. 993. 5, 7

JUDICIAL DECISIONS

ICJ and PCIJ Cases

1962 South West Africa Cases, (Eth. v. S. Afr.; Liber. v. S. Afr.), 7

Preliminary Objections, Judgment, 1962 I.C.J. Rep. 319.
1966 South West Africa Cases (Eth. v. S. Afr.; Liber. v. S. Afr.), 1, 3, 4, 5, 6, 8
Judgment (Second Phase), 1966 I.C.J. Rep. 6.
Accordance with International Law of the Unilateral Declaration of 26, 29, 30, 31
Independence in Respect of Kosovo, Advisory Opinion, 2010
I.C.J. 403.
Admission of a State to Membership in the United Nations, Advisory 25
Opinion, 1948 I.C.J. 57.
Anglo-Iranian Oil Co. Case (United Kingdom v. Iran), Preliminary 26
Objection, Judgment, 1952 I.C.J. Rep. 93.
Application of the Convention on the Prevention and Punishment of the 8
Crime of Genocide (The Gambia v. Myanmar), Preliminary
Objections, Judgment, 2022 I.C.J. 477.
Armed Activities on the Territory of the Congo (Democratic Republic of 25
the Congo v. Uganda), Judgment, 2005 I.C.J. Rep. 168.
Avena and Other Mexican Nationals (Mexico v. United States of 17, 23
America), Judgment, 2004 I.C.J. Rep. 12.
v

Memorial for Respondent - Preliminaries

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 2, 3, 5

Second Phase, Judgment, 1970 I.C.J. Rep. 3.
Certain Expenses of the United Nations (Article 17, paragraph 2, of the 25, 26
Charter), Advisory Opinion, 1962 I.C.J. 151.
Competence of the International Labour Organization to Regulate 2
Incidentally the Personal Work of the Employer, Advisory
Opinion, 1926 P.C.I.J. Ser. B No. 13.
Corfu Channel Case (UK v. Albania), Judgment, 1949 I.C.J. 22. 3
Delimitation of the Maritime Boundary in the Gulf of Maine Area 22
(Canada/U.S.), 1984 I.C.J. 246.
El Salvador v. Honduras (Application For Permission To Intervene), 1990 22
I.C.J 92.
Fisheries Case (U.K./Norway), 1951 I.C.J. Rep. 116. 23
Jadhav (India/Pakistan), 2019 I.C.J. 418. 24
Legal Consequences for States of the Continued Presence of South Africa 26, 28, 29
in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. Rep. 16.
Legal Status of Eastern Greenland (Denmark/Norway), Judgment, 1933 22
P.C.I.J. (Ser.A/B) No. 53.
Legality of the Use of Force, (Serb. and Montenegro v. Belg.), 4
Preliminary Objections, Judgment, 2004 I.C.J. Rep. 279.
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. 22, 23, 25
U.S.), Jurisdiction and Admissibility, 1984 I.C.J 392.
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. 3
U.S.), Merits, 1986 I.C.J. 14.
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 9, 17
1923 P.C.I.J. B04, 24.
North Sea Continental Shelf Cases (Ger./ Den. and Ger./ Neth.), 7, 19
Judgment, 1969 I.C.J. Rep. 3.
Nottebohm Case (Liech. v. Guat.), Judgment (Second phase), 1955 I.C.J. 18, 19, 21
4.
Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253. 8
Payment of Various Serbian Loans Issued in France (France/Serb-Croat- 22
Slovene), 1929 P.C.I.J. (Ser A) No. 20.
Questions of Interpretation and Application of the 1971 Montreal 26, 29
Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. U.S.), Provisional Measures, 1992 I.C.J. Rep.
114.
Questions of Interpretation and Application of the 1971 Montreal 29
Convention arising from the Aerial Incident at Lockerbie (Libyan
Arab Jamahiriya v. U.S.), Preliminary Objections, Judgment, 1998
I.C.J. Rep. 115.
Questions relating to the Obligation to Prosecute or Extradite (Belg. v. 2, 3
Sen.), Judgment, 2012 I.C.J. 422.
Rights of Nationals of the United States of America in Morocco (Fr. v. 2
vi

Memorial for Respondent - Preliminaries

U.S.), Judgment, 1952 I.C.J. 196.

Rights of Passage over Indian Territory (Portugal/India), Merits, 1960 ICJ 25
Rep. 6.
Temple of Preah Vihear (Cambodia/Thailand), Merits, Judgment, 1962 23
I.C.J. 6.
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, 1994 I.C.J. 2
Rep. 6.
The Mavrommatis Palestine Concessions (Greece v United Kingdom), 28
1924 P.C.I.J. Ser. A No. 2.

International Cases and Arbitral Decisions

Aksu v. Turkey, Judgment, Application Nos. 4149/04 and 41029/04, Eur. 8

Ct. H.R. 2012).
Al Rawi & Others, R (on the Application of) v. Secretary of State for 9
Foreign Affairs & Another, 2006 EWHC 972.
Amco Asia Corporation and Others v. Republic of Indonesia, ICSID Case 5
No. ARB/81/1, Award (1984).
Anudo v. United Republic of Tanzania, Judgment, Application No. 16
012/205, AU (2018).
Ballantine v. Dominican Republic, PCA Case No 2016-17, (2019). 21
Begum v. Secretary of State for the Home Department, UKSC 2020/0158, 12
Supreme Court (2021).
Burden v. UK, Judgment, Application No. 13378/05, Eur. Ct. H.R. 7
(2008).
Case No. A/18, IUSCT Case No. A/18, Decision No. DEC32-A-18-FT 21
(1984).
Chagos Marine Protected Area Arbitration (Mauritius/U.K.), PCA Case 22
no. 2011-03 (2019).
Compulsory Membership in an Association Prescribed by Law for the 14
Practice for Journalism (Arts. 13 and 29 American Convention on
Human Rights), Advisory Opinion OC-5/85, Inter-Am.Ct. H.R.
(Ser. A) No. 5.
Esphahanian v. Bank Tejarat, Award No. 157, Iran-US Claims Tribunal 21
Reports (1983).
Fehér v. Slovakia, Judgment, Application No. 14927/12 and 30415/12, 9
Eur. Ct. H.R. (2013).
Féret v. Belgium, Judgment, Application No. 15615/07, Eur. Ct. H.R. 16
(2009).
Flegenheimer Case (US/Italy), 14 R.I.A.A. 327, Italian-US Conciliation 20
Commission, (1958).
Ghoumid v. France, Judgment, Application Nos. 52273/16, Eur. Ct. H.R. 16
(2020).
Government of the Kingdom of Greece v. Government of the U.K. of 15
Great Britain and Northern Ireland, Judgment, Application No.
vii

Memorial for Respondent - Preliminaries

176/56, Eur. Ct. H.R. (1956).

Handyside v. The United Kingdom, Judgment, Application No. 5493/72, 15
Eur. Ct. H.R. (1976).
Hussein Nuaman Soufraki v. The United Arab Emirates, ICSID Case No. 19
ARB/02/7, Award (2004).
Inceysa Vallisoletana S.L. v. Republic of El Salvador, ICSID Case No. 5
ARB/03/26, Award (2006).
K2 v. UK, Judgment, Application No. 42387/13, Eur. Ct. H.R. (2017). 16
L’Erabliere A.S.B.L. v. Belgium, Judgment, Application No. 49230/07, 8
Eur. Ct. H.R. (2009).
Laraba v. Denmark, Judgment,Application No. 26781/19, Eur. Ct. H.R. 16, 17
(2022).
Merge Case, Decision No. 55, 14 R.I.A.A. 236 (Italian-United States 21
Conciliation Commission).
Opinion of AG Tesaurio in Case C-369/90 Micheletti 1992 ECR I-4239. 20
Perinçek v. Switzerland, Judgment, Application No. 2715/80, Eur. Ct. 16
H.R. (2015).
Petropavlovskis v. Latvia, Judgment, Application No. 44230/06, Eur. Ct. 12
H.R. (2015).
Ramadan v. Malta, Judgment, Application No. 76136/12, Eur. Ct. H.R. 16
(2016
Russian Claim for Interests on Indemnities (Russia/Turkey), PCA 1910- 23
02, Award (1912).
Şahin v. Turkey, Judgment, Application No. 44774/98, Eur. Ct. 14
H.R., (2014).
Şahin v. Turkey, Judgment, Application No. 13279/05, Eur. Ct. H.R. 11
(2011).
Söderman v. Sweden, Judgment, Application No. 5786/08, Eur. Ct. H.R. 11
(2013).
The Pious Fund Case (U.S./Mexico), 9 R.I.A.A. 1-14, Award (1902). 23
Yean and Bosico Children v. The Dominican Republic, Judgment, 9
IACrtHR (2005).

National Case Law

Begum v. Secretary of State for the Home Department, UKSC 2020/0158, 12

Supreme Court (2021).
Friends of the Irish Environment CLG v. The Government of Ireland, 6
Appeal No. 205/19, IESC 49 (2020).
Katjivena v. Prime Minister of Namibia, A/265/2014, NAHCMD 146 6
(2016).
Slovenian Constitutional Court No. Up-29/93 of 1995, OdlUS IV, 155 6
and No. Up-60/94 (1997).

BOOKS
viii

Memorial for Respondent - Preliminaries

AHMADOV, THE RIGHT OF ACTIO POPULARIS BEFORE INTERNATIONAL 7, 8

COURTS AND TRIBUNALS (2017).
BELL AND LICHÈRE, CONTEMPORARY FRENCH ADMINISTRATIVE LAW 6
(2022).
CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 5
495 (9TH ED. 2019).
DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE (2ND 4
ED. 2003).
KÄLIN, IUS DONI IN INTERNATIONAL LAW AND EU LAW (2019). 19
KELSEN, THE LAW OF THE UNITED NATIONS (1950). 27
THE CHARTER OF THE UN: A COMMENTARY, ART. 7 (BRUNO SIMMA, ET 25, 27
AL. EDS., 2012).
THIO, LOCUS STANDI AND JUDICIAL REVIEW (1971). 7

UNSC, UN SECURITY COUNCIL HANDBOOK: A USER’S GUIDE TO 28

PRACTICE AND PROCEDURE 9 (2019).

WORKS IN COLLECTION

Daniel Thürer, Soft Law, in MAX PLANCK ENCYCLOPEDIAS OF 11

INTERNATIONAL LAW (2012).
Giorgio Gaja, Standing, in MAX PLANCK ENCYCLOPEDIAS OF 1
INTERNATIONAL LAW (2018).
Ian Sinclair, Estoppel and Acquiescence, in FIFTY YEARS OF THE 22
INTERNATIONAL COURT OF JUSTICE (1996).
Kay Hailbronner, Nationality in public international law and european 18
law, in ACQUISITION AND LOSS OF NATIONALITY (2006).
Michael Wood, The Interpretation of Security Council Resolutions, 30
Revisited, in MAX PLANCK ENCYCLOPEDIAS OF INTERNATIONAL
LAW (2017).
Peter Tzeng, The Principles of Contemporaneous and Evolutionary 30
Interpretation, in BETWEEN THE LINES OF THE VIENNA
CONVENTION: CANONS OF CONSTRUCTION AND OTHER
PRINCIPLES OF INTERPRETATION IN PUBLIC INTERNATIONAL LAW
(2019).
Rüdiger Wolfrum, Cooperation, in MAX PLANCK ENCYCLOPEDIAS OF 31
INTERNATIONAL LAW (2010).

ESSAYS, ARTICLES, AND JOURNALS

Adam Muchmore, “Passports and Nationality in International Law”, 22

Penn State Law (2004).
Alfred Boll, Nationality and Obligations of Loyalty in International and 12
Municipal Law 2005 AUYrBkIntLaw 4; (2005).
ix

Memorial for Respondent - Preliminaries

Alfred Verdross, The Plea of Domestic Jurisdiction before an 27

International Tribunal and the Political Organ of the United
Nations (1968).
Allison Christians, Buying In: Residence and Citizenship by Investment, 18
ST. LOUIS UNIV. L. J., (2017)
Anna Jonsson, Judicial Review and Individual Legal Activism, UPPSALA 6
UNIV.(2005).
Arrested Development: Sudan’s Constitutional Court, Access to Justice 6
and the Effective Protection of Human Rights, REDRESS (2012).
Clyde Eagleton, Pacific Settlement of Disputes under the Charter, The 28
Annals of the American Academy of Political and Social Science
(1946).
Craig Forcese, The Capacity to Protect: Diplomatic Protection of Dual 20, 21
Nationals in the ‘War on Terror’, 17 EJIL 2 (2006).
David Gilmour, Article 2(7) of the United Nations Charter and the 25
Practice of the Permanent Members of the Security Council,
AUSTRALIAN INT’L L. (1970).
David Weissbrodt and Clay Collins, The Human Rights of Stateless 4
Persons, 28 HUM. RIGHTS QUARTERLY 1 (2006).
Françoise Hampson, Inaccessible apexes: Comparing access to regional 8
human rights courts and commissions in Europe, the Americas,
and Africa, 61 INT’L J. CONST. L. 1 (2018).
Gammeltoft-Hansen, et al., Introduction in Tracing the Roles of Soft Law 11
in Human Rights, OXFORD UNIVERSITY PRESS 1 2017)
Hans Kelsen, Judicial Review of Legislation, 4 J. OF POLITICS 2(1943). 6, 7
Jaye Ellis, General principles and comparative law, 22 EJIL 949 (2011). 5
Jonathan Charney, The Impact on the International Legal System of the 7
Growth of the International Courts and Tribunals, 31 NYUJ.
INT’L L. & POL., 697 (1998-1999).
Julian Arato, “Constitutionality and constitutionalism beyond the state: 25
Two perspectives on the material constitution of the United
Nations” (2012).
Justin Gruenberg, An Analysis of United Nations Security Council 30
Resolutions, 41 CASE WESTERN RESERVE J. OF INT’L L. 2,
(2009)
Josef Kunz, The Nottebohm Judgment, 54 AM J. INT’L L. 536 (1960). 20
Peter Spiro, Nottebohm and ‘Genuine Link’, INVESTMENT MIGRATION 20
WORKING PAPER, IMC-RP 2019/1, (2019)
Randelfhozer, “Nationality”, in Encyclopedia of Public International 18
Law, ed. Rudolf Bernhardt and Max Planck Institute for
Comparative Public Law and International Law, vol. 8,
(Amsterdam: Elsevier, 1985).
Robert Jennings, The International Court of Justice after Fifty Years, 89 7
AJIL 3 (1995).
Sisay Alemahu Yeshanew, The Justiciability of Human Rights in the 6
x

Memorial for Respondent - Preliminaries

Federal Democratic Republic of Ethiopia, 8 AHRLJ 273-293

(2008).
Tamàs Molnár, The Prohibition of Arbitrary Deprivation of Nationality 11
under International Law and EU Law: New Perspectives,
Hungarian Yearbook of International Law and European Law
(2014).
Timothy Jacob-Owens and Jo Shaw, Soft Law and Citizenship Regimes, 11
Research Paper Series No. 2023/02, UNIV. OF EDINBURG (2023).
Tran Long, The Application of Estoppel in International Law and 22
Experiences for Vietnam, 1 VIETNAMESE J. OF LEGAL SCI. 1
(2019).
White & Case LLP, Can and Should the Security Council be Impartial in 6, 29
the Peaceful Settlement of Disputes? (2022).

UNITED NATIONS DOCUMENTS

Articles on Responsibility of States for Internationally Wrongful Acts, 22

G.A. Res. 59/83, U.N. Doc. A/56/83, (2001).
Book 25: Materials on the Responsibility of States for Internationally 1
Wrongful Acts, UNITED NATIONS LEGISLATIVE SERIES (2023)
Dugard (Special Rapporteur), First report on diplomatic protection, U.N. 20
Doc. A/CB.4/506 (2000).
E.W. v. The Netherlands, Communications No. 429/1990, U.N. Doc. 8
CCPR/C/45/D/429/1990 (1990).
G.A. Res. 50/152 (Feb. 9, 199). 11
Human Rights Committee, General Comment 24, Issues Relating to 1
Reservations made upon Ratification or Accession to the
Covenant or the Optional Protocols thereto, or in Relation to
Declarations under Article 41 of the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.6 (1994),
Human Rights Council, U.N. Doc. A/HRC/25/28 (2013). 12
International Law Commission, Comments by Governments on the Draft
Convention on the Elimination of Future Statelessness and on the
Draft Convention on the Reduction of Future Statelessness A/C.
N.4/82 (1954).
International Law Commission, Draft Articles on Consular Relations, 21
Y.B. INT’L L. COMM’N Vol. II, art. 36, 112-13, U.N. Doc.
A/CN.4/141 (1961).
International Law Commission, Draft Articles on Diplomatic Protection 8, 9, 18, 20
with Commentaries, Y.B. INT’L L. COMM’N Vol. II, Part 2, art. 1,
U.N. Doc. A/61/10 (2006)
International Law Commission, Draft Articles on Responsibility of States 1, 2, 4, 5
for Internationally Wrongful Ats, with commentaries, Y.B. INT’L
L. COMM’N Vol. II U.N. Doc. A/56/10, (2001).
International Law Commission, Draft Conclusion 5, Report of the 5, 6
xi

Memorial for Respondent - Preliminaries

International Law Commission on the work of its seventy-fourth

session, ILC Report A/78/10 (April 24 to June 2 and July 3 to
Aug. 4, 2023)
International Law Commission, Guide to Practice on Reservations to 10
Treaties, II Y.B. INT’L L. COMM’N 7, U.N. Doc. A/66/10 (2011).
Malcolm Ross v. Canada, Merits, U.N. Doc. CCPR/C/70/D/736/1997, 15, 16
(Oct. 18, 2000).
Marcelo Vázquez-Bermúdez (Special Rapporteur), Second Report on 6, 7
General Principles of Law, U.N. Doc. A/CN.4/741 (2021).
Report of the Security Council, U.N. Doc. A/63/1 (2008). 30
Robert Gauthier v. Canada, Merits, U.N. Doc. CCPR/C/65/D/633/1995c 14
(May 5, 1999).
United Nations High Commissioner for Refugees (UNHCR), Expert 12, 13
Meeting - Interpreting the 1961 Statelessness Convention and
Avoiding Statelessness resulting from Loss and Deprivation of
Nationality (Tunis Conclusions) (2014).
United Nations High Commissioner for Refugees (UNHCR), Guidelines 12, 13, 14
on Statelessness No. 5: Loss and Deprivation of Nationality under
Articles 5-9 of the 1961 Convention on the Reduction of
Statelessness, HCR/GS/20/05 (2020).
United Nations Human Rights Committee, General Comment 24, Issues 1, 2, 3
Relating to Reservations made upon Ratification or Accession to
the Covenant or the Optional Protocols thereto, or in Relation to
Declarations under Article 41 of the Covenant, UN Doc
CCPR/C/21/Rev.1/Add.6 (1994).
United Nations Human Rights Committee, General Comment 31, Nature 3
of the General Legal Obligation on States Parties to the
Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004).
United Nations Human Rights Committee, General Comment No. 32, 24
Article 14: Right to equality before courts and tribunals and to a
fair trial, U.N. Doc. CCPR/C/GC/32 (2007).
United Nations Human Rights Committee (HRC), General Comment No. 13, 15
34, Article 19, Freedoms of opinion and expression,
CCPR/C/GC/34 (2011).
United Nations SC, Repertoire of the Practice of the Security Council 32
1946-1951 (1954).
United Nations Security Council, Repertory Vol. I (1945-1954). 27

UNITED NATIONS SECURITY COUNCIL RESOLUTIONS

S.C. Res. 22 (April 9, 1947). 26

S.C. Res. 295 (Aug. 3, 1971). 32
S.C. Res. 276 (Jan. 30, 1970). 29
S.C. Res. 294 (July 15, 1971). 32
S.C. Res. 289 (Nov. 23, 1970). 32
xii

Memorial for Respondent - Preliminaries

S.C. Res. 298 (Sept. 25, 1971). 30

S.C. Res. 446 (Mar. 22, 1979). 30
S.C. Res. 568 (June 21, 1985). 32
S.C. Res 582 (Feb. 24, 1986). 29
S.C. Res. 787 (Nov. 16, 1992). 30
S.C. Res. 1141 (Nov. 8, 2002). 30
S.C. Res. 1244 (June 10, 1999). 30
S.C. Res 1267 (July 15, 2006) 31
S.C. Res 1312 (July 31, 2000). 32
S.C. Res. 1965 (July 15, 2006). 30
S.C. Res. 2379 (Sept. 21, 2017). 30, 31
S.C. Res 2396 (Dec. 21, 2017). 30
S.C. Res 2518 (Mar. 30, 2020). 32
S.C. Res. 2625 (Mar. 15, 2022). 31
S.C. Res. 2640 (June 29, 2022). 31

MISCELLANEOUS

Act No. XXXVIII of 2020, Maltese Citizenship (Amendment No. 2) Act, 19

Ch. 188 (2020).
ASSN’N OF SE. ASIAN NATIONS (ASEAN), Human Rights Declaration, art. 11
18., (2012).

British Nationality Act (1981) 12

Burma Citizenship Law (1982); 11
Citizenship by Investment Act of 2014, Citizenship by Investment Act of 19
Antigua and Barbuda, Sec. 6 (2014)
Citizenship of Zimbabwe Act (1984); 11
Commonwealth of Dominica Citizenship Act of 2014, Ch. 1:10 (2014). 19
Explanatory Report to the European Convention on Nationality, E.T.S. 18
No. 166, 6.XI., (1997)
Global Citizenship Observatory, ‘Global Database on Modes of 18
Acquisition of Citizenship, Version 1.0 (GLOBALCIT 2017).
Jensen, Report from Denmark, ACA-Europe, 140 (1986). 6
Kuwait Nationality Law (1959). 11
Law No. 26 of 2023, Saint Christopher and Nevis Citizenship by 19
Substantial Investment Regulations (2023).
Law No. 5901 of 2018, Turkish Citizenship by Investment Law (2018). 19
Liberia Aliens and Nationality Law (1973). 11
REVISED REPORT ON INDIVIDUAL ACCESS TO CONSTITUTIONAL JUSTICE, 8
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE
COMMISSION) OPINION NO. 1004/3030, ¶40(2021).
Vink, “Global Citizenship Observatory – Citizenship Law Dataset, v. 1, 20
Country-Year Data, Global Citizenship Observatory” (2021).
xiii

Memorial for Respondent - Preliminaries

STATEMENT OF JURISDICTION

The Republic of Antrano and the Kingdom of Remisia have agreed to submit, by way of
compromis, their differences concerning the Sterren Forty and other matters to this Court, in
accordance with Article 40(1) of the Statute of the International Court of Justice [“ICJ”]. An
original copy thereof was transmitted to the Registrar on 15 September 2023. Thus, both parties
have accepted the jurisdiction of the Court pursuant to Article 36(1) of the Statute of the ICJ.

Remisia has undertaken to accept the judgment of this Court as final and binding, and
shall execute it in its entirely and in good faith.
xiv

Memorial for Respondent - Preliminaries

QUESTIONS PRESENTED

I. Whether Antrano has standing to bring the matter of the deprivation of nationality of
the “Sterren Forty” to this Court;

II. Whether Remisia violated international law when it deprived the “Sterren Forty” of
their Remisian citizenship in accordance with the Disrespect to the Crown Act
[“DCA”];

III. Whether Antrano violated international law when it denied Saki Shaw, a Remisian
citizen, access to Remisian consular representatives while she was held prisoner in
Antrano; and

IV. Whether Remisia violated international law by refusing to allow Dr. Malex to enter
Remisia.
xv

Memorial for Respondent - Preliminaries

STATEMENT OF FACTS

BACKGROUND

The Republic of Antrano [“Antrano”], a constitutional republic, is an island within the

Mahali Archipelago. Antrano was primarily a homeland for nomadic peoples and remains to be
home to a mix of races and ethnicities. The Kingdom of Remisia [“Remisia”], a constitutional
monarchy, is a land-locked country 11,000 kilometers away from the Mahali Archipelago. Its
current head of state is Queen Khasat.

DISRESPECT TO THE CROWN ACT [“DCA”]

The monarchy has always been venerated by Remisia’s citizens. Remisia’s Constitution
provides that the monarch is entitled to reverence and that insulting the monarch is a crime. In
1955, Remisia enacted the DCA which punishes anyone who defames, insults, or threatens the
reigning monarch with imprisonment of up to five years and, if found by a court to be disloyal to
the Crown, the deprivation of his/her Remisian citizenship.

NATURALIZATION BY INVESTMENT ACT [“NIA”]

For Remisia to be among the leading nations in the region, Queen Khasat promised that
her government would encourage foreign investment and international commerce to raise
revenue. Thus, in 2008, Her Majesty signed into law the NIA, which grants citizenship to any
applicant who purchases real property, contributes to the National Infrastructure Development
Fund, or otherwise makes a direct investment in the Remisian economy of €500,000 or more.
Dual citizenship is permitted in Remisia and there is no residency requirement to qualify for the
NIA.

Subsequently, Remisia implemented the Naturalization by Investment Program [“NIP”],

a worldwide marketing campaign which invites individuals to apply for citizenship under the
NIA. The program was considered extremely successful, generating over €1.5 billion in gross
revenue for Remisia from its inception through 2021.
xvi

Memorial for Respondent - Preliminaries

SAKI SHAW

Saki Shaw was born in, and is a citizen of, Molvania. In 1988, Saki Shaw formed a close
personal friendship with then-Princess Khasat. The two remained close as Saki Shaw would visit
Kamil (the capital of Remisia) during her undergraduate years and even attended Queen Khasat’s
coronation.

Saki Shaw was appointed the head of Lithos Limited [“Lithos”], a wholly owned
subsidiary of multinational minerals and mining conglomerate — Shaw Corporation
[“ShawCorp”]. Lithos ventured into the leasing and operation of cobalt mines along with the
refinement of ore.

In 2014, Lithos and the Remisian Government agreed to form a joint venture, called the
Lithos-Remisia Cooperative [“LRC”], for the purpose of undertaking cobalt mining operations.
As part of the agreement, Saki Shaw applied for citizenship under the NIP after contributing
€500,000 to the National Infrastructure Development Fund. Having met the requirements, the
Remisian government approved Saki Shaw’s application and she was naturalized as a Remisian
citizen.

Meanwhile, Remisia’s Ministry of Mines granted the LRC permits to initiate its cobalt
mining operations after conducting standard due diligence and finding no substantial negative
environmental consequences. LRC’s mines employed more than 4,000 Remisians and generated
substantial public income through export tariffs.

THE STERREN FORTY

In 2019, locals began complaining about a “cobalt curse” — a persistent hacking cough
accompanied by an itchy skin rash, which was believed to be caused by contact with the dust and
metallic minerals originating from LRC’s facilities. Demonstrators started holding rallies and
calling for the halt of LRC’s cobalt mining operations in Remisia. Nevertheless, Remisia’s
xvii

Memorial for Respondent - Preliminaries

Ministry of Mines approved four more licenses in favor of LRC, stating that claims of potential
threats to public health lacked substantiation.

As the government did not retract the permits granted to LRC, protests resumed
throughout Remisia. Despite prior warning from police officers that insulting the Queen is
considered a ground for arrest, demonstrators continued to chant and display placards with direct
statements against the Queen, insinuating that Her Majesty’s close association with Saki Shaw
was the primary factor for the issuance of permits.

In 2020, the protests intensified with students shifting from campus demonstrations to the
blocking of access roads leading to the mining facilities. Some went to the extent of chaining
themselves to entrance gates and machinery in the facilities. This disruption persisted for weeks
and effectively crippled mining operations. After the students disregarded requests to peacefully
leave the mine sites, authorities resorted to making arrests. Forty protesters, who had created a
human chain at the Sterren Palace gates, were apprehended and later referred to as “the Sterren
Forty”.

All protesters faced charges under the DCA, with an option to have the charges dropped
by signing a written apology to Her Majesty. The Sterren Forty declined to apologize. During the
trial, none of the defendants denied being involved in the protests, chanting slogans, and
displaying signs declaring that Queen Khasat was responsible for permitting risky mining
operations. All were pronounced guilty, leading to five-year sentences and revocation of
citizenship. Remisia’s Supreme Court unanimously denied the Sterren Forty’s appeal, citing that
evidence of the Sterren Forty’s disloyalty was manifest and that the sentences complied with
domestic and international law.

ANTRANO’S DENIAL OF REMISIAN CONSULAR ACCESS

In March 2022, Molvania issued an arrest warrant against Saki Shaw charging her with
bank fraud, money laundering, and obstruction of justice.

Shortly thereafter, Saki Shaw arrived in Duniya (capital of Antrano) for a ShawCorp
board meeting. She was cleared for entry at the immigration checkpoint after presenting her
xviii

Memorial for Respondent - Preliminaries

Remisian passport, which was stamped by the Antranan authorities. The next morning, Antranan
police arrested and detained her pursuant to Molvania’s extradition request. Despite identifying
as a Remisian and requesting access to Remisian consular officials, Antranan authorities denied
her plea, stating that they do not recognize purchased citizenship. Remisia persistently sought
access to Saki Shaw, but Antrano refused.

UN SECURITY COUNCIL [“UNSC”] RESOLUTION 99997

The UNSC, with Antrano as President, unanimously passed Resolution 99997,

establishing the UN Inspection Mission to Remisia [“UNIMR”] for the purpose of investigating
the Sterren Forty’s imprisonment and deprivation of citizenship.

Remisia asserted, however, that the prosecution and punishment of the Sterren Forty were
internal matters beyond the purview of the UNSC. To safeguard its sovereignty, Remisia denied
entry to Dr. Tulous Malex, appointed leader of the UNIMR, from meeting with the Sterren Forty.
Remisia asserted that Resolution 99997 did not impose legal obligations, and the decision to
allow or deny entry was a sovereign prerogative.

Despite Antrano’s calls for additional measures against Remisia following the latter’s
refusal to allow Dr. Malex’s entry, the UNSC failed to adopt such measures.

RELEVANT CONVENTIONS

Antrano and Remisia are members of the UN and acceded to the Statute of the
International Court of Justice.

Both States are parties to the Vienna Convention on the Law of Treaties, the Vienna
Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, the
International Covenant on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights, the 1946 Convention on the Privileges and Immunities of the United
Nations, the 1954 Convention Relating to the Status of Stateless Persons, and the 1961
Convention on the Reduction of Statelessness [“CRS”].
xix

Memorial for Respondent - Preliminaries

When Remisia ratified the CRS, it submitted a declaration stating that “it retains the right
to deprive a person of his nationality in accordance with Article 8.3 of the Convention if such
person has been convicted of an offense under the [DCA] and satisfies such other criteria as are
laid out in that statute.”

SUMMARY OF PLEADINGS

I. ANTRANO DOES NOT HAVE STANDING TO BRING THE CLAIM CONCERNING

REMISIA’S DEPRIVATION OF THE STERREN FORTY’S CITIZENSHIP.

Antrano lacks standing to invoke Remisia’s responsibility, if any, as Antrano is not a

directly injured State. The human rights obligations involved here are owed to individuals and
not to States. Neither can Antrano claim to be a ‘specially affected’ State, as it lacks a personal
and concrete interest in the matter of the Sterren Forty.

Antrano is likely to argue standing to institute actio popularis for breaches of obligations
erga omnes or erga omnes partes but such argument cannot be sustained. Actio popularis is
neither a general principle of law nor a customary norm binding in these proceedings. In any
event, the principle finds no application here as the obligations involved are neither erga omnes
nor erga omnes partes.

Finally, Antrano cannot exercise diplomatic protection over the Sterren Forty as they are
not Antrano’s nationals. To successfully exercise diplomatic protection over the Sterren Forty as
stateless persons, they should have been lawfully and habitually residing in Antrano, which is not
the case here.

II. REMISIA DID NOT VIOLATE INTERNATIONAL LAW WHEN IT DEPRIVED

THE STERREN FORTY OF THEIR CITIZENSHIP.

The deprivation of the Sterren Forty’s citizenship is within Remisia’s domainé réservé.
While Remisia ratified the Convention on the Reduction of Statelessness [“CRS”], it submitted a
valid declaration retaining its right to deprive nationality for grounds stated in the Disrespect to
the Crown Act. Further, no customary norm limits Remisia’s right to deprive individuals of their
nationality.
xx

Memorial for Respondent - Preliminaries

Even if Remisia’s act is subject to international law, Remisia nevertheless acted

consistently with its obligations. Remisia had a valid ground under the CRS to revoke the Sterren
Forty’s citizenship as they acted ‘inconsistently with their duty of loyalty’ and ‘conducted
themselves in a manner seriously prejudicial to Remisia’s vital interests’. The interference with
the Sterren Forty’s freedom of speech is also justified as a valid limitation on human rights: it
was provided for by law and was necessary and proportionate to achieve the legitimate aim of
restoring public order. Finally, Remisia did not act arbitrarily when it deprived the Sterren Forty
of their nationality.

III. ANTRANO VIOLATED INTERNATIONAL LAW WHEN IT DEPRIVED SAKI

SHAW OF REMISIAN CONSULAR ACCESS.

The Vienna Convention on Consular Relations [“VCCR”] guarantees the right of

Remisian consular officers to communicate, have access to, and visit Remisian nationals
detained in Antrano. Thus, Antrano violated the VCCR when it refused to grant Remisian
consular officers access to Saki Shaw while she was detained in Antrano.

Antrano cannot justify its breach on the ground that it does not recognize ‘purchased
citizenship’. International law requires Antrano to recognize Remisia’s grant of citizenship to
Saki Shaw. Specifically, jus doni is a general principle of law relating to nationality binding on
Antrano. Antrano’s refusal to recognize Saki Shaw’s Remisian citizenship based on the effective
nationality principle does not also convince because the principle is not customary and, in any
case, finds no application in the field of consular protection. At any rate, Antrano is estopped
from refuting Saki Shaw’s nationality, having accepted her into Antrano with her Remisian
passport.

IV. REMISIA DID NOT VIOLATE INTERNATIONAL LAW WHEN IT DENIED DR.
MALEX ENTRY NOTWITHSTANDING UNITED NATIONS SECURITY COUNCIL
[“UNSC”] RESOLUTION 99997.
xxi

Memorial for Respondent - Preliminaries

Preliminarily, the Court must refuse to exercise jurisdiction as the UNSC remains “seized
of the matter” underlying Resolution 99997. If the Court will take cognizance of the matter, it
would preempt the UNSC on issues concerning international peace and security.

Should the Court find that it may exercise jurisdiction, Resolution 99997 is nevertheless
invalid as the UNSC unlawfully intervened into matters that are essentially within Remisia’s
domestic jurisdiction. Resolution 99997’s text, the Charter provisions invoked, and the UNSC’s
contemporaneous and subsequent acts also show that the UNSC never intended to impose
binding obligations upon Remisia.

If at all, Remisia is only obliged to ‘cooperate fully’ with the Investigative Mission
established under Resolution 99997. Full cooperation, however, does not require the entry of
mission members so long as the purpose of the Mission can be achieved through other means
(e.g., providing information and documents), as is the case here.
 1

Memorial for Respondent - Pleadings

PLEADINGS

I. ANTRANO LACKS STANDING TO BRING THE MATTER OF THE

DEPRIVATION OF NATIONALITY OF THE “STERREN FORTY” TO THIS
COURT.

Standing before this Court pertains to a State’s right to bring a claim against another State
for a breach of an international obligation.1 Without standing, a State’s claim is inadmissible.2

Custom permits a State to bring a claim against another State for breaches of international
obligations if it is directly injured by such breach. 3 [A] The Republic of Antrano [“Antrano”] is
not, however, a directly injured State. While Antrano might claim standing based on actio
popularis, [B] actio popularis is neither customary nor a general principle of law and, in any
event, finds no application here. Finally, [C] Antrano has no right to exercise diplomatic
protection over the Sterren Forty.

A. ANTRANO IS NOT A DIRECTLY INJURED STATE.

1. Antrano is not a directly injured State under Article 42(a) of the Articles on the
Responsibility of States for Internationally Wrongful Acts [“ARSIWA”].

Article 42(a) of the ARSIWA, which reflects custom, 4 entitles a State to invoke the
responsibility of another State if the obligation breached is owed to that State individually. Here,
Antrano’s claims are anchored on human rights obligations owed to individuals 5 and not to any
particular State. Consequently, Antrano cannot claim standing under Article 42(a).

2. Antrano is not an injured State under Article 42(b)(i) of ARSIWA.

1
Gaja, Standing, in MAX PLANCK ENCYCLOPEDIAS OF INTERNATIONAL LAW 1 (2018).
2
South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Second Phase, 1966 I.C.J. 6, ¶51
[“1966 South West Africa”].
3
Book 25: Materials on the Responsibility of States for Internationally Wrongful Acts, UNITED
NATIONS LEGISLATIVE SERIES, art. 42, ¶2.
4
ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with
commentaries, U.N. Doc. A/56/10, art.42, ¶2 [“ARSIWA Commentary”].
5
HRComm, General Comment 24, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (1994),¶17 [“GC
24”].
2

Memorial for Respondent - Pleadings

Article 42(b)(i) of the ARSIWA, which also reflects custom, 6 allows a State to invoke the
responsibility of another State when the former is specially affected by the latter’s breach of
collective obligations (i.e., erga omnes and erga omnes partes).7 Here, Antrano’s claims do not
involve obligations [a] erga omnes partes or [b] erga omnes and [c] Antrano is not a specially
affected State.

a. Antrano’s claims under the Convention on the Reduction of Statelessness

[“CRS”] and the International Covenant on Civil and Political Rights
[“ICCPR”] do not involve obligations erga omnes partes.

Obligations erga omnes partes are obligations owed to a group of States and established
to protect their collective interests.8

In Belgium v. Senegal, the ICJ ascertained the object and purpose of a treaty to determine
whether it establishes community interests.9 A treaty’s object and purpose may be deduced from
its preamble,10 travaux préparatoires,11 and framework.12

Here, the [i] CRS and [ii] ICCPR do not create obligations erga omnes partes.

i. The CRS does not create obligations erga omnes partes.

The CRS, being a human rights treaty, creates obligations owed to individuals, 13 not
States. Its preamble shows that its object and purpose is to “reduce and, if possible, eliminate

6
ARSIWA Commentary, art.42, ¶2.
7
Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), Second Phase,
1970 I.C.J. 3,¶33 [“Barcelona Traction”]; Questions relating to the Obligation to
Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J. 422, ¶68 [“Belgium/Senegal”].
8
Id.
9
aboveaboveaboveBelgium/Senegal, ¶68.
10
Rights of Nationals of the USA in Morocco (Fr. v. U.S.), 1952, I.C.J. 196.
11
Territorial Dispute (Libyan Arab Jamahiriya/Chad), 1994 I.C.J. 6,¶55-56.
12
Competence of the ILO to Regulate Incidentally the Personal Work of the Employer,
Advisory Opinion, 1926 P.C.I.J. Ser. B No. 13,18.
13
GC 24, ¶17.
3

Memorial for Respondent - Pleadings

future statelessness”14 but this alone does not reveal an intent to establish obligations for the
parties’ collective interests. Previously,15 the Court found that obligations that uphold
‘elementary considerations of humanity’ are established for the international community’s
collective interests; nothing in the CRS, however, suggests that the obligations thereunder rise to
that level.

ii. The ICCPR does not create obligations erga omnes partes.

The Human Rights Committee [“HRComm”] explained that the beneficiaries of rights in
the ICCPR are individuals16 and that the ICCPR is “not a web of inter-State exchanges of mutual
obligations.”17 Thus, the ICCPR seeks to protect individual rights rather than the collective
interests of its parties.

b. The right to nationality and the right not to be arbitrarily deprived thereof
are not obligations erga omnes.

Obligations erga omnes are those owed to the international community as a whole. 18
Although this Court recognized that basic human rights are erga omnes,19 such does not cover all
human rights.20 Indeed, this Court only recognized obligations pertaining to genocide, slavery,
and racial discrimination as erga omnes.21 While Antrano might argue that the right to nationality
and right not to be arbitrarily deprived thereof are as fundamental as those mentioned in
Barcelona Traction, it bears emphasizing that nationality is not a prerequisite to the enjoyment

14
Convention on the Reduction of Statelessness, preamble, 1961, 989 U.N.T.S 175
[“CRS”].
15
Corfu Channel (UK v. Albania), 1949 I.C.J. 22 [“Corfu Channel”]; Military and
Paramilitary Activities (Nicaragua v. US) 1986 I.C.J. 113-114.
16
HRComm, General Comment 31, U.N. Doc. CCPR/C/21/Rev.1/Add.13, ¶9 (2004).
17
GC 24, ¶17.
18
Barcelona Traction, ¶33; Belgium/Senegal, ¶68.
19
Barcelona Traction, ¶34.
20
1966 South West Africa (Tanaka, J., diss.op.), 298; Barcelona Traction (Ammoun, J.,
diss.op.) 301.
21
Barcelona Traction, ¶34.
4

Memorial for Respondent - Pleadings

of a whole host of rights guaranteed under international law, 22 which militates against the claim
that the right to nationality is fundamental.

c. Antrano is not a specially affected State.

A State is “specially affected” if it is affected by the breach in a way that distinguishes it

from the generality of other States to which the obligation is owed. 23 The State must show that it
has a personal interest that is specific, concrete, and not abstract.24

Antrano has no personal interest in the Sterren Forty’s deprivation of nationality. At

most, Antrano has advocated for the rights of stateless persons 25 but mere advocacy is
insufficient to establish injury or a specific and concrete interest that distinguishes Antrano from
other States.

B. ANTRANO HAS NO RIGHT TO INSTITUTE ACTIO POPULARIS AGAINST REMISIA FOR

BREACHES OF OBLIGATIONS ERGA OMNES OR ERGA OMNES PARTES.

Actio popularis pertains to a right to take legal action in vindication of a public interest. 26
Although actio popularis is known to domestic legal systems, [1] such has no basis in
international law as it is neither a general principle of law nor customary; 27 [2] alternatively, this
principle is inapplicable here because Antrano’s claims do not involve the vindication of ‘public
interest’, i.e., obligations erga omnes or erga omnes partes.

1. Actio popularis has no basis in international law.

a. Actio popularis is not a general principle of law.

22
DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 159-60 (2nd ed.
2003); Weissbrodt and Collins, The Human Rights of Stateless Persons, 28 HUM.RIGHTS
QUARTERLY 1, 249 (2006).
23
ARSIWA Commentary, art. 42, ¶12.
24
Legality of the Use of Force (Serb. and Montenegro v. Belg.), 2004 I.C.J. 279, ¶64 (Kreća,
J., sep.op.).
25
Compromis, ¶4.
26
1966 South West Africa, ¶88.
27
Id.
5

Memorial for Respondent - Pleadings

General principles of law are legal norms accepted among the majority of municipal legal
systems28 that embody “universal standards that must always be applied.” 29 According to the
International Law Commission [“ILC”], the existence of a general principle of law “cannot and
should not be easily assumed”30 as it must satisfy two stringent 31 requirements: [i] the principle is
common to various legal systems; and [ii] such principle is transposable to the international legal
system.32 Actio popularis fails to meet these requirements.

i. Actio popularis is not common to municipal legal systems.

Determining the existence of a principle common to the various legal systems of the
world requires a wide and representative comparative analysis of national legal systems. 33 The
assessment must cover major legal systems (e.g., civil and common law systems)34 and various
regions of the world.35 In this regard, a principle must be present in a “large number and variety
of legal systems”36 to constitute a general principle of law.

In South West Africa, the Court found that actio popularis was not a general principle of
law,37 because it was only known to “certain municipal systems of law” 38 and was not widely
recognized.39 Even today, major civil and common law jurisdictions have widely rejected the
28
Statute of the ICJ, 33 U.N.T.S. 993, art. 38(1); CRAWFORD, BROWNLIE’S PRINCIPLES OF
PUBLIC INTERNATIONAL LAW 495 (9TH ED. 2019).
29
Vallisoletana S.L. v. Republic of El Salvador, ICSID Case No. ARB/03/26, Award,
¶¶226–27 (2006).
30
ILC, Draft Conclusion 5, Report of the ILC on the work of its seventy-fourth session, chap.
IV ¶30-41, ILC Report A/78/10 (2023) ¶20 [“Draft Conclusion 5”].
31
Id.
32
Draft Conclusion 5, ¶17; 1966 South West Africa, (Tanaka, J., diss.op.), 284.
33
Draft Conclusion 5, ¶25; Barcelona Traction, ¶50.
34
Amco Asia Corporation and Others v. Republic of Indonesia, ICSID Case No. ARB/81/1,
Award, ¶248 (1984).
35
Draft Conclusion 5, ¶50;
36
Draft Conclusion 5, ¶51; Ellis, General principles and comparative law, 22 EJIL 949, 955
(2011).
37
1966 South West Africa,¶88.
38
Id.
39
ARSIWA Commentary, ¶47.
6

Memorial for Respondent - Pleadings

notion of ‘public interest litigation’. For instance, the courts of Uzbekistan,40 Slovenia,41
Austria,42 France,43 Namibia,44 Sudan,45 Denmark,46 Ethiopia,47 Iceland,48 Ireland,49 and Russia50
have dismissed actio popularis claims.

ii. Actio popularis is not transposable to the international legal system.

For a principle to be transposable to the international legal system: the principle must be
compatible with fundamental principles of international law; 51 and conditions must exist for the
adequate application of the principle in the international legal system. 52

First, the principle must be capable of existing within the broader framework of
international law,53 particularly, the set of “rules of international law within which the principle
applies.”54 One fundamental rule of international law is that standing requires legal interest. 55 In
this regard, damage or injury has traditionally been seen as a necessary precondition to have
40
Kelsen, Judicial Review of Legislation, 4 J. OF POLITICS 2, 197 (1943).
41
Slovenian Constitutional Court No. Up-29/93 of 1995, OdlUS IV, 155 and No. Up-60/94
(1997).
42
Kelsen, n40, 197.
43
BELL AND LICHÈRE, CONTEMPORARY FRENCH ADMINISTRATIVE LAW
(2022).
44
Katjivena v. Prime Minister of Namibia, A/265/2014, 2016 NAHCMD 146 (2016).
45
Arrested Development: Sudan’s Constitutional Court, Access to Justice and the Effective
Protection of Human Rights, REDRESS, 11 (2012).
46
Jensen, Report from Denmark, ACA-EUROPE, 140 (1986).
47
Yeshanew, The Justiciability of Human Rights in the Federal Democratic Republic of
Ethiopia, 8 AHRLJ 273-293 (2008).
48
White & Case LLP, Access to Justice for Children, CRIN 8 (2014).
49
Friends of the Irish Environment CLG v. The Government of Ireland, Appeal No. 205/19,
2020 IESC 49, ¶7.4.
50
Jonsson, Judicial Review and Individual Legal Activism, UPPSALA UNIV. 297 (2005).
51
Draft Conclusion 5, ¶82.
52
Id., ¶85.
53
Id., ¶75.
54
Vázquez-Bermúdez (Special Rapporteur), Second Report on General Principles of Law,
U.N. Doc. A/CN.4/741, ¶82 (2021).
55
1966 South West Africa, ¶48.
7

Memorial for Respondent - Pleadings

legal interest.56 Actio popularis, which does not require a plaintiff to show injury or damage to
itself, is thus inconsistent with the fundamental principles of international law.

Second, structural differences between international and domestic law 57 do not permit the
adequate application of actio popularis in the international legal system.58 The objective of actio
popularis in municipal systems is to restrain public authorities from violating law but its
objective under international law is unclear59 because the concept of ‘public authorities’ is not
known to international law.60 Additionally, actio popularis in municipal systems creates binding
effect on every person within the State, thereby facilitating the protection of public interest; in
contrast, decisions rendered by international tribunals,61 including the ICJ, are binding on the
parties alone.62

b. Actio popularis has not crystallized into custom.

Actio popularis fails to meet the twin requirements of settled state practice and opinio
juris.63

Regarding State practice, various States have refused to allow actio popularis.64 Several
human rights treaties also do not allow for actio popularis: for example, the ECHR held that the
European Convention does not “envisage the bringing of actio popularis” and that plaintiffs
must show a direct injury.65 Other international tribunals also found that plaintiffs who institute
56
1962 South West Africa Cases, (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections,
Judgment, 1962 ICJ Rep. 319, 456 [“1962 South West Africa”] (Winiarski, J., diss.op.).
57
AHMADOV, THE RIGHT OF ACTIO POPULARIS BEFORE INTERNATIONAL COURTS AND
TRIBUNALS 23 (2017).
58
Vázquez-Bermúdez, n54, ¶85.
59
THIO, LOCUS STANDI AND JUDICIAL REVIEW 2-3 (1971).
60
Charney, The Impact on the International Legal System of the Growth of the International
Courts and Tribunals, 31 NYUJ. INT’L L. & POL., 697, 698 (1998-1999).
61
Jennings, The International Court of Justice after Fifty Years, 89 AJIL 3, 504 (1995).
62
I.C.J. Statute, art.59.
63
North Sea Continental Shelf Cases (Ger./Den. and Ger./Neth.), Judgment, 1969 I.C.J. 3,
44 [“North Sea Continental Shelf”].
64
Kelsen, n40, 197.
65
Burden v. UK, Judgment, ECHR, Application No. 13378/05, ¶33 (2008).
8

Memorial for Respondent - Pleadings

complaints on behalf of public interest lack standing. 66 These show that practice is inconsistent
and lacks generality.67

Opinio juris is also lacking. ICJ Judges Winiarski,68 Morelli,69 De Castro,70 and Kress71
share the view that actio popularis is alien to international law. International tribunals, 72
including human rights bodies like the HRComm 73 and domestic tribunals,74 also refused to hear
actio popularis claims. Although actio popularis is found in Article 48 of the ARSIWA, such is
simply a reflection of de lege ferenda75 rather than the ILC’s codification of international law.

2. Even if the Court finds that actio popularis has basis under international law,
Antrano’s claim does not involve obligations erga omnes or erga omnes partes.76

C. ANTRANO CANNOT EXERCISE DIPLOMATIC PROTECTION OVER THE STERREN FORTY.

As a rule, the right to exercise diplomatic protection resides in the State of nationality and
no other.77 The Sterren Forty are not Antrano’s nationals.

66
L’Erabliere A.S.B.L. v. Belgium, Judgment, ECHR, Application No. 49230/07, ¶29
(2009); Aksu v. Turkey, Judgment, ECHR, Application Nos. 4149/04 and 41029/04 (2012).
67
AHMADOV, n57, 22.
68
1966 South West Africa, n2, (Winiarski, J., diss.op.).
69
1966 South West Africa, n2, (Morelli, J., diss.op.) ¶3.
70
Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253, 387 (Morelli, J., diss.op.).
71
The Gambia v. Myanmar, Preliminary Objections, Judgment, 2022 I.C.J. (Kress, J.,
diss.op.), ¶32.
72
Hampson, Inaccessible apexes: Comparing access to regional human rights courts and
commissions in Europe, Americas, and Africa, 61 INT’L J. CONST. L. 1, 180-182.
73
E.W. v. The Netherlands (communications no. 429/1990), U.N.Doc.
CCPR/C/45/D/429/1990.
74
Revised Report on Individual Access to Constitutional Justice, European Commission for
Democracy through Law (Venice Commission) Opinion No. 1004/3030, ¶40(2021).
75
AHMADOV, n57, 2.
76
Supra Parts I.A.2.a & I.A.2.b.
77
International Law Commission, Draft Articles on Diplomatic Protection with Commentaries,
Y.B. INT’L L. COMM’N Vol. II, Part 2, art. 2, U.N. Doc. A/61/10 (2006) [“Draft Articles
on Diplomatic Protection”].
9

Memorial for Respondent - Pleadings

Although Article 8 of the Draft Articles on Diplomatic Protection allows diplomatic

protection over stateless persons, such is not customary. 78 In any event, Article 8 strictly 79
requires the stateless persons to have been lawfully and habitually residing in the State espousing
the claim at the date of the injury and the official presentation of the claim,80 which is not the
case here.

Thus, Antrano cannot exercise diplomatic protection over the Sterren Forty.

II. REMISIA DID NOT VIOLATE INTERNATIONAL LAW WHEN IT DEPRIVED

THE “STERREN FORTY” OF THEIR REMISIAN CITIZENSHIP IN
ACCORDANCE WITH THE DISRESPECT TO THE CROWN ACT [“DCA”].

A. REMISIA’S RIGHT TO DEPRIVE THE STERREN FORTY OF THEIR CITIZENSHIP, BASED

ON THE DCA, IS A MATTER FALLING SOLELY WITHIN ITS DOMAINE RÉSERVÉ AND IS

NOT GOVERNED BY INTERNATIONAL LAW.

In Nationality Decrees, the PCIJ ruled that questions of nationality fall within a State’s
domaine réservé and are subject only to the State’s international obligations. 81 Even today,
human rights bodies, such as the ECHR 82 and Inter-American Court of Human Rights
[“IACtHR”],83 continue to uphold the Nationality Decrees doctrine. Hence, absent a binding
international obligation restricting the Kingdom of Remisia’s [“Remisia”] right to deprive its
nationals of citizenship, this matter falls solely within Remisia’s domestic jurisdiction.

1. Although Remisia is a party to the CRS, it validly retained its right to deprive
individuals of their nationality in accordance with the DCA.

78
Draft Articles on Diplomatic Protection, n76, art. 8,¶3; Al Rawi & Others v. Secretary of
State for Foreign Affairs & Another, [2006] EWHC 972.
79
Draft Articles on Diplomatic Protection, art. 8,¶4.
80
Id., ¶1.
81
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923 P.C.I.J. B04,
24. [“Nationality Decrees”].
82
Fehér v. Slovakia, Judgment, Application No. 14927/12 and 30415/12, ECHR, ¶41
(2013).
83
Yean and Bosico Children v. The Dominican Republic, Judgment, IACrtHR, ¶140 (2005).
10

Memorial for Respondent - Pleadings

Article 8(3) of the CRS allows a State Party to retain its right to deprive persons of their
nationality by submitting a declaration that specifies such retention based on the grounds listed
under the same Article, being grounds existing in its national law at that time. 84 Here, Remisia
submitted the required declaration and retained its right to deprive Remisians of their nationality
for acts of “disloyalty” – a ground common to the CRS and the DCA.85

a. Remisia’s declaration is valid and does not constitute an impermissible

reservation.

While a reservation excludes or modifies the legal effect of certain provisions of a

treaty,86 a declaration simply clarifies the meaning or scope of certain provisions to the declaring
state.87 A declaration enjoys the presumption that it is not a reservation, so long as it is consistent
with the allowed terms under a treaty. 88 An examination of States’ objections to the declarations
made by Togo, Tunisia, and the Philippines in respect of Article 8(3) of the CRS shows that a
declaration only amounts to an impermissible reservation 89 when it goes beyond the scope of
Article 8(3).90

Here, Remisia declared that:

“… it retains the right to deprive a person of his nationality in accordance with

Article 8.3 of the Convention if such person has been convicted of an offense
under the [DCA] and satisfies such other criteria as are laid out in that statute.”

84
1961 Convention on the Reduction of Statelessness, art.8(3), 989 U.N.T.S 175.
85
Compromis, ¶¶7&62.
86
ILC, Guide to Practice on Reservations to Treaties, ¶1.3, II Y.B. INT’L L. COMM’N 7, U.N.
Doc. A/66/10(2011).
87
Id., at ¶1.2.
88
Id., at ¶1.3.1.
89
Vienna Convention on Law of Treaties, art. 19(b), 1155 U.N.T.S. 331.
90
CRS, Declaration of Togo, 2021, 989 U.N.T.S. 175.; CRS, Declaration of Tunisia, 2000,
989 U.N.T.S. 175.; CRS, Declaration of Philippines, 2023, 989 U.N.T.S. 175.
11

Memorial for Respondent - Pleadings

In turn, the DCA allows the deprivation of nationality when a person has been found
“disloyal to the Crown”.91 As Remisia’s declaration simply echoes a ground found in Article
8(3), it does not amount to an impermissible reservation.

b. Consequently, Remisia’s enforcement and interpretation of the DCA is a

purely domestic matter falling outside the scope of the CRS.

The ECHR, among other human rights bodies, affirmed that the interpretation and
enforcement of domestic laws, especially those concerning deprivation of nationality, are matters
decided by national authorities92 and international courts will not disturb such decisions. 93 The
DCA must thus be interpreted and enforced by Remisia alone to the exclusion of international
bodies such as this Court.

2. Remisia’s right to deprive nationality is not limited by any customary norm.

The right to nationality and the right not to be arbitrarily deprived thereof have not
attained customary status.94 While the same are enshrined in soft law instruments,95 such merely
express non-binding norms and guiding principles that are insufficient to prove custom. 96 This is
further proven by inconsistencies in state practice, such as the en masse denationalization by
States like Bhutan and Ethiopia97 and the reluctance of states like Zimbabwe, Liberia, Myanmar,
and Kuwait to accept international law obligations relating to nationality.98

91
Compromis, ¶7.
92
Söderman v. Sweden, Application No. 5786/08, ECHR, ¶102 (2013); Şahin v. Turkey,
Application No. 13279/05, ECHR, §49 (2011).
93
Şahin v. Turkey, ¶49.
94
Owens and Shaw, Soft Law and Citizenship Regimes, Research Paper Series No. 2023/02,
UNIV. OF EDINBURG, 6 (2023).
95
G.A. Res. 50/152, ¶16; ASSN’N OF SE. ASIAN NATIONS (ASEAN), Human Rights
Declaration, art. 18., (2012).
96
Thürer, Soft Law, in MAX PLANCK ENCYCLOPEDIAS OF INTERNATIONAL LAW, ¶2 (2012);
Gammeltoft-Hansen, et al., Introduction in Tracing the Roles of Soft Law in Human Rights,
OXFORD UNIVERSITY PRESS 1 (2017).
97
Molnár, The Prohibition of Arbitrary Deprivation of Nationality under International Law
and EU Law, HUNGARIAN Y.B. INT’L L. & EUR.L., 67-68 (2014).
12

Memorial for Respondent - Pleadings

B. ALTERNATIVELY, REMISIA EXERCISED ITS RIGHT TO DEPRIVE THE STERREN FORTY

OF THEIR NATIONALITY IN ACCORDANCE WITH ITS TREATY OBLIGATIONS.

1. The deprivation of the Sterren Forty’s citizenship complied with Article 8(3)(a)(ii)
of the CRS.

Article 8(3) of the CRS allows States to deprive persons of their nationality where such
persons have, inconsistently with their duty of loyalty to the State, conducted themselves in a
manner seriously prejudicial to the vital interests of the State.99

The duty of loyalty is characterized as a citizen’s “firm and constant support to the State
as a whole.”100 In Petropavlovskis v. Latvia, the ECHR ruled that while a person is free to
disagree with his government’s policies in the exercise of his freedom of expression, such
critique must be in accordance with law. 101 In this regard, the scope of a citizen’s duty of loyalty
is ultimately dependent on each State’s law. 102 As to disloyal acts that are “prejudicial to the vital
interests of the State,” the Tunis Conclusions interpret these actions as those that threaten the
foundations and organization of the State,103 a matter best determined by the State itself.104

98
Citizenship of Zimbabwe Act, §11(2)(b) (1984); Liberia Aliens and Nationality Law,
§21.50 (1973); Burma Citizenship Law, §8(2) (1982); Kuwait Nationality Law, art. 13
(1959).
99
CRS, art.8(3).
100
United Nations High Commissioner for Refugees [“UNHCR”], Guidelines on
Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961
Convention on the Reduction of Statelessness [“Guidelines on Statelessness No. 5”], ¶57
(2020), HCR/GS/20/05.
101
Petropavlovskis v. Latvia, Judgment, Application No. 44230/06, ECHR, ¶85 (2015).
102
Boll, Nationality and Obligations of Loyalty in International and Municipal Law, 24
AUSTRALIAN Y.B. INT’L L. 4, 37(2005).
103
UNHCR, Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding
Statelessness resulting from Loss and Deprivation of Nationality [“Tunis Conclusions”]
¶68 (2014).
104
Begum v. Secretary of State for the Home Department, UKSC 2020/0158, Supreme Court
(2021).
13

Memorial for Respondent - Pleadings

In safeguarding its interests, State authorities enjoy a margin of discretion in interpreting

their laws and determining when to deprive persons of their nationality. 105 This is consistent with
the practice of parties to the CRS like the UK.106

While the Sterren Forty are free to disagree with Remisia’s policies, the exercise of their
freedom must not transgress Remisia’s law. By accusing the Queen of being responsible for the
‘cobalt curse’, “threatening [their] future”, and “betraying” Her people, 107 the Sterren Forty
threatened the very foundation of Remsia’s institutions. To be sure, Remisia’s Supreme Court
concluded that “evidence of their disloyalty was manifest and that the deprivation of their
nationality was fully consistent with international law and domestic law.” 108 Absent any showing
that the Supreme Court acted arbitrarily, its finding cannot be disturbed.

2. Remisia’s deprivation of the Sterren Forty’s citizenship was not “based on political
grounds”; in this regard, Remisia’s conduct falls within the accepted limitations to
the freedom of expression and assembly under the ICCPR.

Article 9 of the CRS provides that States may not deprive persons of nationality based on
political grounds. According to the UNHRC, “political grounds” must be interpreted in light of
subsequent developments in international human rights law. 109 Thus, an individual must not be
deprived of his nationality if it would be inconsistent with freedom of expression and
assembly.110 Nevertheless, the freedom of expression and assembly are not absolute. Here,
Remisia acted consistently with its human rights obligations considering that the restriction was
[a] provided for by law, [b] pursuant to a legitimate aim, and [c] necessary and proportionate.

a. The restriction was provided for by law.

105
Human Rights Council, U.N. Doc. A/HRC/25/28, ¶13 (2013); Begum v. Secretary of
State for the Home Department, UKSC 2020/0158, Supreme Court (2021).
106
British Nationality Act, §40 (1981).
107
Compromis, ¶¶26,28-29.
108
Compromis, ¶34.
109
Tunis Conclusions, ¶79.
110
Guidelines on Statelessness No. 5, ¶78.
14

Memorial for Respondent - Pleadings

A restriction is properly provided for by law when there is sufficient precision as to

which expression or conduct is restricted 111 and the conditions where such rights are limited are
sufficiently established.112 The ECHR held that the requirement is complied with when the
limitation has basis in a domestic law and is accessible to the public.113

Here, Remisia's Constitution and the DCA clearly specify which acts and forms of speech
are criminalized and the ground for which their citizenship may be revoked (i.e., when they have
been proven to manifest one's "disloyalty to the Crown").114 The concept of "disloyalty to a
State" is neither new115 nor vague and has, in fact, been incorporated in Article 8 of the CRS
itself. Therefore, having established with sufficient precision which acts are penalized, the DCA
satisfies the legality requirement.

b. The restriction had a legitimate aim.

Article 19(3)(b) of the ICCPR provides that the protection of public order is a legitimate
ground in restricting one’s right to freedom of expression. 116 Public order is threatened when
physical order and the effective functioning of democratic institutions are disturbed. 117 In
Gauthier v. Canada, the HRComm found that an individual’s right under Article 19 of the
ICCPR was properly restricted to ensure that governmental bodies effectively carry out their
functions.118

Here, Remisia properly deprived the Sterren Forty of their nationality in order to restore
public order and protect public interest. The Sterren Forty’s actions (e.g., chaining themselves to

111
HRComm, General Comment No. 34, Article 19, Freedoms of opinion and expression,
U.N. Doc.CCPR/C/GC/34 ¶24[“GC 34”].
112
Compromis, ¶¶25&26.
113
Şahin v. Turkey, Application No. 44774/98, ECHR, ¶49 (2004).
114
Compromis, ¶7.
115
Guidelines on Statelessness No. 5, ¶57.
116
International Covenant on Civil and Political Rights, art. 19(3)(b), 999 U.N.T.S 171.
117
Compulsory Membership in an Association Prescribed by Law for the Practice for
Journalism, Advisory Opinion OC-5/85, Inter-Am.Ct. H.R. (ser. A) No. 5, ¶64 (1985).
118
Gauthier v. Canada, Merits, U.N. Doc.CCPR/C/65/D/633/1995, ¶13.4 (1999).
15

Memorial for Respondent - Pleadings

the Sterren Palace,119 crippling a critical national industry,120 instigating nationwide

demonstrations) threatened physical order while their statements (e.g., choosing democracy over
monarchy,121 claiming Her Majesty’s betrayal,122 and baseless accusations that the Queen was
responsible for the ‘cobalt curse’123) bore the dangerous tendency to sow distrust. Collectively,
these threatened Remisia’s government as a whole and undermined its institutions. Under these
conditions, Remisia had a legitimate aim to pursue.

c. The restriction was necessary and proportionate.

A restriction is ‘necessary’ if the measure is appropriate to achieve a legitimate aim. 124 It

is ‘proportionate’ if the measure is the least restrictive measure to achieve its desired results. 125 In
determining whether an imposed restriction is necessary and proportionate, States are afforded a
margin of discretion in limiting individuals’ freedom of expression where there is a legitimate
aim to be protected.126

Although the freedom of expression is essential for democratic societies, Remisia’s

restriction was necessary as it averted further public disarray and addressed the ongoing threat to
public order. The restriction was also proportionate for three reasons. First, Remisia only
resorted to the restriction after authorities requested demonstrators to disperse peacefully, offered
to meet for peaceful dialogue, and issued several warnings, all to no avail. Second, Remisia
announced that it would drop the charges against the Sterren Forty if they apologized to Her
Majesty but they all refused to do so. Third, the Sterren Forty had the influence to start mass
demonstrations across the country that garnered international attention, all the while making

119
Compromis, ¶29.
120
Compromis, ¶22.
121
Compromis, ¶27
122
Compromis, ¶¶26,28-29.
123
Compromis, ¶28.
124
Ross v. Canada, Merits, U.N. Doc. CCPR/C/70/D/736/1997, ¶11.6(2000).
125
GC 34, ¶33.
126
Greece v. UK, Application No. 176/56, Judgment, ECHR (1956); Handyside v. The
United Kingdom, Application No. 5493/72, Judgment, ECHR, 49 (1976).
16

Memorial for Respondent - Pleadings

unfounded statements against the Queen, Her character, and Her government. 127 Given the
Sterren Forty’s influence128 and the inflammatory nature of the statements made, 129 stricter
measures were justified.

3. Remisia complied with the due process requirements under Article 8(4) of the CRS.

Article 8(4) of the CRS guarantees the right to a fair hearing by a court or other
independent body.130 In Ramadan v. Malta, the ECHR found that the applicant was granted the
opportunity to be heard through hearings and was able to challenge the decision, in compliance
with the procedural safeguards concerning deprivation of nationality. 131 Here, Remisia afforded
the Sterren Forty the right to be heard by a court and an adequate opportunity to challenge their
conviction,132 thus complying with due process.

C. REMISIA DID NOT ACT ARBITRARILY WHEN IT DEPRIVED THE STERREN FORTY OF

CITIZENSHIP.

Deprivation of nationality is only arbitrary when it is not in accordance with law,

unnecessary and disproportionate to achieve a legitimate aim, 133 and done without procedural
safeguards.134 State authorities do not act arbitrarily when they have acted swiftly and
diligently.135

127
Compromis, ¶33.
128
Ross v. Canada, n147, ¶¶2.1-2 .3,4.3-4.4, 11.6.
129
Perinçek v. Switzerland, Application No. 2715/80, Judgment, ECHR, ¶230 (2015); Féret
v. Belgium, Application No. 15615/07, Judgment, ECHR, ¶76 (2009).
130
CRS, art. 8, ¶4.
131
Ramadan v. Malta, Application No. 76136/12, Judgment, ECHR, ¶87 (2016).
132
Compromis, ¶¶33&34.
133
Anudo v. United Republic of Tanzania, Application No. 012/205, Judgment, AU, ¶79
(2018).
134
K2 v. UK, Application No. 42387/13, Judgment, ECHR, ¶¶52-58 (2017).
135
Laraba v. Denmark, Application No. 26781/19, Judgment, ECHR, ¶¶16-20 (2022);
Ghoumid v. France, Application Nos. 52273/16, ECHR, ¶¶44-48 (2020).
17

Memorial for Respondent - Pleadings

Here, Remisia’s deprivation of the Sterren Forty’s nationality was done in accordance
with law and was necessary and proportionate to protect public order. 136 Remisia also afforded
the Sterren Forty appropriate procedural safeguards. 137 Finally, the Sterren Forty’s case did not
meet any unjust delay considering that their case was resolved in just a little over a year after
their arrest. Such a span of time is well within international standards.138

III. ANTRANO VIOLATED INTERNATIONAL LAW WHEN IT DENIED SAKI SHAW,

A REMISIAN CITIZEN, ACCESS TO REMISIAN CONSULAR
REPRESENTATIVES WHILE SHE WAS HELD PRISONER IN ANTRANO.

Article 36(1) of the Vienna Convention on Consular Relations [“VCCR”] guarantees that
a sending State’s consular officers shall be free to communicate with, have access to, and visit
detained nationals of the sending state. Saki Shaw acquired Remisian citizenship pursuant to
Remisia’s Naturalization by Investment Program [“NIP”]139 prior to her detention in Antrano. By
denying Remisian consular representatives access to Saki Shaw, Antrano violated international
law.

A. ANTRANO VIOLATED REMISIA’S RIGHTS UNDER ARTICLE 36(1) OF THE VCCR.

1. Article 36(1) of the VCCR applies with respect to the nationals of a sending State.

Avena affirm that Article 36(1) of the VCCR applies to nationals of a sending State. 140
While Antrano may argue that it is not bound to recognize Saki Shaw’s Remisian citizenship,
this argument cannot be sustained.

Pursuant to its sovereignty, Remisia has the absolute discretion to grant nationality to
individuals.141 Such grant is entitled to recognition by other States insofar as the grant is
136
Supra Part II.B.
137
Supra Part II.B.
138
Laraba v. Denmark, ¶¶16-20.
139
Compromis, ¶19.
140
Avena and Other Mexican Nationals (Mexico v. United States of America), 2004 I.C. J.
Rep. 12, 52 [“Avena”], ¶50.
141
Nationality Decrees, 24.
18

Memorial for Respondent - Pleadings

consistent with general principles of law relating to nationality and international custom. 142 This
obligation to recognize a person’s citizenship is customary, as affirmed by the commonality of
language in the 1930 Hague Convention 143 and European Convention on Nationality, 144 their
ratification by States,145 as well as the ILC’s Draft Articles on Diplomatic Protection 146 and
decisions of this Court.147

Here, Antrano is bound to recognize Remisia’s grant of citizenship to Saki Shaw as the
same is consistent with [a] general principles of law relating to nationality and [b] custom.

a. Antrano is obliged to recognize Remisia’s grant of citizenship to Saki Shaw

as the grant is consistent with the general principles of law relating to
nationality.

Jus sanguinis and jus soli are not the only common modes of acquiring nationality. 148 The
wide practice of States demonstrates the grant of nationality based on other grounds. 149 In fact,
170 States allow the naturalization of aliens as long as they comply with requirements
established under domestic law.150

That Saki Shaw was naturalized in Remisia primarily by virtue of her contribution to the
State’s development fund151 does not make her citizenship any less entitled to recognition by

142
Convention on Certain Questions Relating to the Conflict of Nationality Law, art. 1, 1930,
179 L.N.T.S. 89 [“1930 Hague Convention”].
143
1930 Hague Convention, art. 1.
144
European Convention on Nationality, art. 3, 1997, E.T.S. 166.
145
Explanatory Report to the European Convention on Nationality, E.T.S. No. 166, 6 (1997).
146
Draft Articles on Diplomatic Protection, art. 4 at 30; Randelfhozer, Nationality, in MAX
PLANCK ENCYCLOPEDIAS OF PUBLIC INTERNATIONAL LAW, vol. 8 (1985), at 417.
147
Nottebohm Case (Liechtenstein/Guatemala), Second Phase, 1955 I.C.J. 4, at 22, 26
[“Nottebohm”].
148
Hailbronner, Nationality in public international law and european law, in ACQUISITION
AND LOSS OF NATIONALITY, (2006) at 58-59.
149
Id.
150
Global Citizenship Observatory, ‘Global Database on Modes of Acquisition of Citizenship,
Version 1.0 (GLOBALCIT 2017).
151
Compromis, ¶19.
19

Memorial for Respondent - Pleadings

other States. Citizenship by investment or jus doni is a common mode of conferring nationality
upon individuals for their investment or economic contribution to the country. 152 Jus doni is
recognized in both common law153 and civil law154 jurisdictions and thus constitutes a general
principle of law. While it requires substantial investment from an individual to the development
fund of a particular State, it does not require habitual residence. 155 This is not unusual – as
observed by the tribunal in Soufraki v. United Arab Emirates because it is difficult for someone
with multiple business interests to construct actual residence, especially for a considerable period
of time.156

As jus doni is a general principle of law relating to nationality, Antrano must recognize
Saki Shaw’s citizenship.

b. The effective nationality principle does not negate Antrano’s obligation to

recognize Saki Shaw’s Remisian nationality.

The principle of effective nationality requires a ‘genuine link’ to exist between an

individual and a State that seeks to exercise diplomatic protection over the individual. 157

The effective nationality principle, however, cannot bar Antrano’s obligation to recognize
Saki Shaw’s Remisian nationality because [i] the principle is not customary and [ii] even if it is,
it finds no application to the field of consular protection. In any event, [iii] Saki Shaw has a
genuine link to Remisia.

152
Christians, Buying In: Residence and Citizenship by Investment, ST. LOUIS UNIV. L. J.,
(2017) at 58.
153
ACT No. XXXVIII of 2020, Maltese Citizenship (Amendment No. 2) Act, Ch. 188; Law
No. 5901 of 2018, Turkish Citizenship by Investment Program; KÄLIN, IUS DONI IN
INTERNATIONAL LAW AND EU LAW (2019) at 158-159.
154
No. 26 of 2023, Saint Christopher and Nevis Citizenship by Substantial Investment
Regulations; Commonwealth of Dominica Citizenship by Investment Regulations (2014);
Antigua and Barbuda Citizenship by Investment Act (2013); KÄLIN, n173, at 158-159.
155
KÄLIN, n155, at 158-159.
156
Hussein Nuaman Soufraki v. The United Arab Emirates, ICSID Case No. ARB/02/7,
Award (2004).
157
Nottebohm, 22&26.
20

Memorial for Respondent - Pleadings

i. The effective nationality principle is not customary.

The effective nationality principle fails to meet the requirement of settled state practice
and opinio juris.158

First, out of 190 countries, only half allow dual citizenship, with only a quarter not
accepting dual citizenship at all.159 This includes the practice of the US, Canada, Italy, France,
Tunisia, and the UK, which assists its nationals, as long as they are nationals by their domestic
law.160

Second, opinio juris is proven through diplomatic correspondences, widespread

acceptance in literary work,161 and decisions of tribunals.162 The ILC, in its Draft Articles on
Diplomatic Protection, rejected the requirement of an effective link to exercise diplomatic
protection.163 To the contrary, dual nationals may be protected by both States of nationality. 164
This is supported by decisions of tribunals, as in the Micheletti Case where the European Court
of Justice rejected the application of effective nationality to determine one’s nationality. 165

ii. Even assuming the effective nationality principle is customary, it finds no

application in the field of consular protection.

158
North Sea Continental Shelf, ¶77.
159
Vink, “Global Citizenship Observatory – Citizenship Law Dataset, v. 1, Country-Year
Data, Global Citizenship Observatory” (2021).
160
Id.
161
Spiro, Nottebohm and ‘Genuine Link’, INVESTMENT MIGRATION WORKING PAPER, IMC-
RP 2019/1, (2019); Kunz, The Nottebohm Judgment, 54 AM J. INT’L L. 536, 550 (1960).
162
Flegenheimer Case (US/Italy), 14 R.I.A.A. 327 (Italian-US Conciliation Commission
1958); Opinion of AG Tesaurio in Case C-369/90 Micheletti [1992] ECR I-4239, ¶5.
163
Draft Articles on Diplomatic Protection, art. 4, at 34.
164
Draft Articles on Diplomatic Protection, art. 6, at 33-34.
165
Opinion of AG Tesaurio in Case C-369/90 Micheletti [1992] ECR I-4239, ¶5.
21

Memorial for Respondent - Pleadings

Diplomatic protection pertains to the remedial procedure 166 where a State seeks to
espouse the claims of its nationals against another State. 167 In contrast, consular protection
pertains to the rights conferred under the VCCR. 168 Nothing in the VCCR169 or its traveaux
préparatoires170 discusses the need for a ‘genuine link’ before a sending State may afford
consular protection to its nationals. Notably, the Nottebohm Case applied the effective
nationality principle only in the context of diplomatic, not consular, protection 171 and as such, the
doctrine is not controlling here.

iii. In any event, Saki Shaw has a genuine link to Remisia.

In cases172 where genuine link was tested, tribunals shared the view that no single factor
is indispensable. Instead, every factor must be examined according to the circumstances of a
case.173

Relevantly, in Nottebohm, Judge Read refused to recognize Nottebohm’s “lack of

residence” as a decisive factor in the recognition of his nationality. 174 This is supported by the
Merge Claim175 and A/18 Case176 where all relevant factors, including participation in public life
and other evidence of attachment, were considered as a whole.

166
Forcese, The Capacity to Protect: Diplomatic Protection of Dual Nationals in the ‘War on
Terror’, 17 EJIL 2, 390 (2006).
167
Dugard (Special Rapporteur), First report on diplomatic protection, U.N. Doc. A/CB.4/506
(2000).
168
Forcese, n166.
169
VCCR, art. 36(1).
170
ILC, Draft Articles on Consular Relations, Y.B. INT’L L. COMM’N Vol. II, art. 36, 112-13,
U.N. Doc. A/CN.4/141 (1961).
171
Nottebohm, 22&26.
172
Nottebohm, 22&26; Merge Case, Decision No. 55, 14 R.I.A.A. 236 (Italian-United States
Conciliation Commission); Esphahanian v. Bank Tejarat, Award No. 157 (1983), Iran-US
Claims Tribunal Reports, 166.
173
Ballantine v. Dominican Republic, PCA Case No 2016-17, ¶554 (2019).
174
Nottebohm, (Read, J., dis.op.) 41.
175
Merge Case, 236.
176
Case No. A/18, IUSCT Case No. A/18, Decision No. DEC32-A-18-FT (1984).
22

Memorial for Respondent - Pleadings

Here, Saki Shaw has proven her participation in Remisian public life by establishing the
Lithos-Remisia Cooperative and playing an active part in supporting Remisia’s goals and
aspirations.177 She also has a close personal relationship with Remisia’s Monarchy. 178
Considering these factors as a whole, Saki Shaw is genuinely linked to Remisia. The fact that she
maintains no residence therein is not decisive of the issue.

2. Antrano is bound to recognize Saki Shaw’s Remisian nationality as it is estopped

from claiming otherwise.

International estoppel precludes a State from taking a position contrary to its prior
conduct or statement.179 For estoppel to bind a State, three requisites must concur: 180 there needs
to be a clear conduct by a State; such conduct must be voluntary, unconditional, and authorized;
and the party relying on such conduct would be prejudiced by the conduct. Here, all requisites
are present.

First, following Serbian Loans,181 El Salvador/Honduras,182 and Nicaragua,183 the

requirement of clear conduct is satisfied when the conduct of the State is definite and consistent,
evincing a particular state of affairs, instead of ambiguous statements. In presenting a passport to
State authorities, the holder represents herself as a national of the issuing State 184 as a passport is
prima facie evidence of one’s nationality.185 Thus, the Antranan immigration officer’s act of
allowing Saki Shaw to enter Antrano using her Remisian passport shows the clear and
unambiguous recognition of Saki Shaw’s Remisian citizenship.

177
Compromis, ¶18.
178
Compromis, ¶15.
179
Sinclair, Estoppel and Acquiescence, FIFTY YEARS OF THE INTERNATIONAL COURT OF
JUSTICE 104-20 (1996).
180
Chagos Marine Protected Area Arbitration (Mauritius/U.K.), 2019 PCA ¶438.
181
Payment of Various Serbian Loans Issued in France (France/Serb-Croat-Slovene), 1929
P.C.I.J. (ser A) No.20, 38.
182
El Salvador v. Honduras (Application For Permission To Intervene), 1990 I.C.J. 92, ¶63.
183
Nicaragua v. US, Jurisdiction, 1984 I.C.J 392, 415, ¶51 [“Nicaragua”].
184
Muchmore, “Passports and Nationality in International Law”, 318.
185
Id, at 350.
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Memorial for Respondent - Pleadings

Second, the Gulf of Maine and Legal Status of Eastern Greenland cases provide that
conduct is authorized and unconditional if it is made by an organ competent to bind the State 186
without express conditions.187 The immigration officer, as an officer exercising elements of
governmental authority with respect to the entry of aliens, 188 is capable of binding Antrano.
Moreover, the immigration officer did not attach conditions to his acceptance of Saki Shaw’s
Remisian passport. Thus, the immigration officer’s conduct is voluntary, authorized, and
unconditional.

Third, the party relying on a State’s conduct must have been prejudiced for estoppel to
lie.189 Antrano’s sudden turnaround and refusal to recognize Saki Shaw’s Remisian citizenship
caused her prejudice as she was ultimately refused access to Remisian consular representatives
during her detention.190

Finally, estoppel may lie against a State, despite the lack of ‘good faith reliance’ on the
part of the party claiming estoppel. 191 In Pious Fund of California,192 Anglo-Fisheries,193 and
Russian Indemnity,194 acts gave rise to estoppel despite the lack of good faith reliance. Thus,
Remisia need not prove ‘good faith reliance’ on Saki Shaw’s part for estoppel to lie against
Antrano.

B. IN TURN, ANTRANO VIOLATED REMISIA’S RIGHTS TO CONSULAR NOTIFICATION,

VISITATION, AND COMMUNICATION WITH RESPECT TO ITS DETAINED NATIONAL.

186
Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/U.S.), 1984
I.C.J. 246, ¶¶133, 137&139; Legal Status of Eastern Greenland (Denmark/Norway),
P.C.I.J. Ser.A/B. No 53, ¶71 (1933).
187
Long, The Application of Estoppel in International Law and Experiences for Vietnam, 1
VIETNAMESE J. OF LEGAL SCI. 1, 98 (2019).
188
ARSIWA Commentary, 43&44.
189
Temple of Preah Vihear (Cambodia/Thailand), Merits, Judgment, 1962 I.C.J. 6, 63
(Fitzmaurice, J., sep. op.); Nicaragua, ¶51.
190
Compromis, ¶43.
191
Temple of Preah Vihear, 40-41 (Alfaro, J., sep. op.).
192
The Pious Fund Case (U.S./Mexico), Award, 9 R.I.A.A. 1-14 (1902).
193
Fisheries Case (U.K./Norway), 1951 ICJ Rep. 116, 140.
194
Russian Claim for Interests on Indemnities (Russia/Turkey), PCA 1910-02, Award (1912).
24

Memorial for Respondent - Pleadings

Article 36(1) of the VCCR requires receiving States to notify without delay the consular
post of the sending State whenever a national of the sending State is detained in the former’s
territory.195 In Avena, the Court held that the obligation to notify arises once a State realizes that
the person in its custody is a foreign national. 196 Here, Antranan authorities knew from the
beginning that Saki Shaw was a Remisian national. 197 By failing to notify Remisia of her
detention, Antrano violated Remisia’s right to be notified under Article 36(1).

Article 36(1) also guarantees a sending State’s right to communicate with and visit its
detained nationals, so as to arrange for their representation. 198 Antrano’s refusal to let Remisian
consular officers visit Saki Shaw and its failure to provide Remisia with an opportunity to
arrange for Saki Shaw’s legal representation violate Remisia’s VCCR rights.199

C. ANTRANO VIOLATED SAKI SHAW’S INDIVIDUAL RIGHTS UNDER THE VCCR AND

ICCPR.

The Court in Jadhav has affirmed that Article 36(1) of the VCCR grants nationals of a
sending State individually enforceable rights to have access to consular officers of the sending
State.200 Thus, Antrano’s refusal to provide Saki Shaw access to Remisian consular
representatives during her detention violated her rights under the VCCR.

Separately, Article 14 of the ICCPR provides minimum due process guarantees to

individuals facing courts and tribunals, regardless of the nature of the proceedings before such
bodies.201 It includes the right to be given facilities for one’s defense, including legal
representation of one’s choosing.202 In Jadhav, Judge Robinson opined that the right to consular

195
VCCR, art. 36(1)(b).
196
Avena, ¶63.
197
Compromis, ¶42.
198
Jadhav (India/Pakistan), 2019 I.C.J. 418, ¶118.
199
Compromis, ¶¶42-44.
200
Jadhav, ¶116.
201
HRComm, General Comment No. 32, U.N. Doc. CCPR/C/GC/32 (2007).
202
ICCPR, art. 14.
25

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access is amongst the guarantees in Article 14 as it is tied to the ability of an individual to defend
herself before a competent tribunal.203 Thus, Antrano also violated the ICCPR.

IV. REMISIA DID NOT VIOLATE INTERNATIONAL LAW BY REFUSING TO

ALLOW DR. MALEX TO ENTER REMISIA.

International law guarantees the protection of State sovereignty 204 and territorial
integrity.205 Pursuant to these principles and as recognized in the Rights of Passage Case, a State
has the power to refuse the entry of foreign nationals absent binding international obligations to
the contrary.206 Thus, Remisia had the right to refuse Dr. Malex’s entry. While Antrano argues
that Remisia was duty-bound to allow Dr. Malex’s entry pursuant to UNSC’s Resolution 99997,
such argument holds no water because Resolution 99997 is procedurally and substantively infirm
and, in any event, imposes no binding obligations on Remisia.

A. PRELIMINARILY, THE COURT MUST REFUSE TO EXERCISE JURISDICTION OVER

ANTRANO’S CLAIMS AS THE UNSC REMAINS “SEIZED OF THE MATTER” UNDERLYING

RESOLUTION 99997.

UN Organs are independent of one another, with distinct areas of jurisdiction. 207 Each
organ is supreme in its own sphere of competence 208 which must not be encroached upon by
other UN bodies.209 The UNSC has primary210 competence over all matters concerning the

203
Jadhav, (Robinson, J., sep.op.), 99.
204
Charter of the United Nations, 1945, 1 UNTS XVI., art. 2. [“U.N. Charter”]; Nicaragua,
¶79; Case Concerning Armed Activities on the Territory of the Congo (Congo/Uganda),
2005 ICJ 168, ¶148.
205
U.N. Charter, art. 2(4); Nicaragua, ¶79.
206
Rights of Passage over Indian Territory (Portugal/India), 1960 ICJ Rep. 6, 40-42.
207
THE CHARTER OF THE UN: A COMMENTARY, art. 7 (BRUNO SIMMA, ET AL. EDS., 2012) [“
SIMMA”]; Admission of a State to Membership in the United Nations (Advisory Opinion),
1948 ICJ 57, 64.
208
Arato, “Constitutionality and constitutionalism beyond the state: Two perspectives on the
material constitution of the United Nations”, 652-653.
209
Certain Expenses of the United Nations (Advisory Opinion), 1962 I.C.J 151, 229-230
[“Certain Expenses”].
26

Memorial for Respondent - Pleadings

maintenance of international peace and security.211 While the ICJ is the principal judicial organ
of the UN,212 drafters of the UN Charter refused to grant the ICJ the power to review UNSC
decisions as it would unduly expand the Court’s powers 213 and disturb the balance established by
the Charter.214 In practice, the UNSC has emphasized this separation of functions in its
resolutions by indicating that it decides “to remain actively seized of the matter.” 215 By “seizing
itself of the matter,” the UNSC puts an end to the Court’s jurisdiction.216

Indeed, the Court itself has recognized that it does not possess powers of judicial review
over matters within the competence of the UNSC. 217 In Lockerbie, for example, the ICJ refused
to grant provisional measures to Libya on the ground that the UNSC already issued a binding
resolution.218 This is because if the Court were to take cognizance of matters seized by the
UNSC, it would preempt, and even substitute, the UNSC on the same issues.219

Here, the UNSC took cognizance of the establishment of the United Nations Inspection
Mission to Remisia [“UNIMR”], pursuant to its mandate to ensure the maintenance of peace and
security,220 and decided to “remain seized of the matter.” 221 Since Antrano’s claims fall within the

210
U.N. Charter, art. 34&39; Gilmour, Article 2(7) of the United Nations Charter and the
Practice of the Permanent Members of the Security Council, AUSTRALIAN INT’L L., 154.
211
U.N. Charter, art. 34&39; Certain Expenses, 293-294.
212
U.N. Charter, art. 92.
213
U.N. Doc. 2, G/7 (k) (1), 3 U.N.C.I.O Docs. 335, 336 (1945); Certain Expenses, at 168.
214
Accordance with International Law of the Unilateral Declaration of Independence in
Respect of Kosovo (Advisory Opinion), 2010 ICJ 403, 516 [“Kosovo”].
215
Corfu Channel; S.C. Res. 22 (1947).
216
Anglo-Iranian Oil Case (UK/Iran), 1952 I.C.J. 93, 134.
217
Legal Consequences for States of the Continued Presence of South Africa in Namibia
(Advisory Opinion), 1971 I.C.J. 16, 45 [“Namibia”].
218
Case Concerning Questions of Interpretation and Application of the 1971 Montreal
Convention Arising from the Aerial Incident at Lockerbie, 1992 I.C.J. 114, 127&140.
[“Lockerbie (Provisional)”].
219
Kosovo, 518.
220
U.N. Charter, art. 34&39; Certain Expenses, 293-294.
221
U.N. Charter, art. 34&39; S.C. Res. 99997, ¶5.
27

Memorial for Respondent - Pleadings

UNSC’s exclusive competence, the Court must refuse to exercise its jurisdiction over such
claims.

B. REMISIA DID NOT VIOLATE ITS OBLIGATIONS UNDER ARTICLE 25 OF THE UN

CHARTER WHEN IT REFUSED TO ALLOW DR. MALEX’S ENTRY.

1. Resolution 99997 is invalid for failing to conform to substantive and procedural

requirements under Articles 2(7) and 27, respectively, of the UN Charter.

a. The UNSC violated the principle of non-intervention by interfering with

matters that are essentially within Remisia’s domestic jurisdiction.

Article 2(7) prohibits the UN, including the UNSC,222 from intervening in matters that are
“essentially” within the domestic jurisdiction of a Member State. A matter is essentially within a
State’s domestic jurisdiction if it is governed by domestic law in principle. 223 The drafting history
of Article 2(7) shows that the drafters intentionally used the term “essentially” instead of
“solely”224 to grant broader protections to a State’s domaine réservé. Thus, that a matter might be
governed by rules of international law does not take it outside the guarantees provided by Article
2(7).225

Here, Remisia’s deprivation of the Sterren Forty’s citizenship based on the DCA is a
matter falling within Remisia’s domestic jurisdiction. 226 Even assuming that such deprivation is
governed by rules of international law, such matter remains essentially within Remisia’s
domestic jurisdiction given that it concerns former Remisians, their acts occurring in Remisia’s
territory, and Remisia’s implementation of its own domestic law. Thus, the UNSC unlawfully
intervened when it adopted Resolution No. 99997.

222
U.N. Charter, art. 2(7).
223
Verdross, The Plea of Domestic Jurisdiction before an International Tribunal and the
Political Organ of the United Nations, 39-40 (1968).
224
KELSEN, THE LAW OF THE UNITED NATIONS 769-791 (1950); UNSC Repertory Vol. I
(1945-1954), ¶¶401-403.
225
SIMMA, n207, art. 2(7), ¶28; UNSC Repertory Vol. I (1945-1954), ¶¶401-403.
226
Supra Part II.A.
28

Memorial for Respondent - Pleadings

b. Antrano’s failure to abstain from voting makes Resolution 99997

procedurally infirm.

Decisions of the UNSC on all non-procedural matters shall be made by an affirmative

vote of at least nine members including the concurring votes of the permanent members; further,
in decisions under Chapter VI, a party to a dispute must abstain from voting.227

A dispute between parties exist when there is a disagreement on a point of law, a conflict
of legal views or interests, or a claim is positively opposed by another.228

Here, a dispute exists between Antrano and Remisia by virtue of their conflicting legal
views regarding the Sterren Forty. Considering that the UNSC adopted Resolution 99997
pursuant to its Chapter VI powers, Antrano, as a member of the UNSC, 229 should have abstained
from voting on the Resolution. The unanimous adoption230 of Resolution 99997 makes it
procedurally infirm and, therefore, invalid.

2. Resolution 99997 imposes no binding obligations upon Remisia.

Following the Court’s approach in Namibia,231 an examination of [a] the Charter

provisions invoked in Resolution 99997, [b] the terms of Resolution 99997, and [c] the UNSC’s
refusal to take additional measures against Remisia shows that Resolution 99997 was not
intended to create binding obligations upon Remisia.

a. Resolutions adopted in the exercise of the UNSC’s Chapter VI powers are

generally recommendatory.

The UNSC, in the exercise of its Chapter VI powers, may assist parties in the pacific
settlement of disputes.232 As the pacific settlement of disputes under international law is
227
U.N. Charter, art. 27(3).
228
Mavrommatis Palestine Concessions (Greece/Britain), P.C.I.J., Ser. A No. 2. ¶19 (1924).
229
Compromis,¶48.
230
Compromis,¶59.
231
Namibia,¶114.
232
U.N. Charter, art. 33.
29

Memorial for Respondent - Pleadings

ultimately consent-based,233 resolutions adopted by the UNSC under Chapter VI are generally
recommendatory, unless there is a clear intent to bind Member States. 234 This is in contrast with
the UNSC’s Chapter VII powers, which generally impose binding obligations upon states and
trigger Article 25 of the Charter.235

In Lockerbie, this Court applied Article 25 of the Charter after finding that the resolution
was issued under Chapter VII and expressly framed as a decision. 236 Similarly, in Namibia, this
Court ruled that Resolution 276 issued under Chapter VI was binding only because it invoked
Article 25 of the Charter.237

Here, Resolution 99997 was issued pursuant to the UNSC’s Chapter VI powers and did
not refer to the Article 25 of the Charter. 238 Taken together, they show an intent on the part of the
UNSC not to create binding obligations on Member States.

b. The terms used by Resolution 99997 impose no binding obligations.

Following the test laid down in Kosovo239 and Namibia,240 the Court may likewise
determine the binding effect of Resolution 99997 based on its text and past UNSC practice.241

Paragraph two of Resolution 99997 simply “calls upon” Remisia to cooperate with the
UNIMR. In Resolution No. 582, the term “calls upon” was also used, but was considered as non-

233
Eagleton, Pacific Settlement of Disputes under the Charter, The Annals of the American
Academy of Political and Social Science (1946), Vol. 246, at 24-25.
234
UNSC, UN SECURITY COUNCIL HANDBOOK: A USER’S GUIDE TO PRACTICE AND
PROCEDURE 9 (2019).
235
Lockerbie (Provisional), ¶¶40&42; White, Can and Should the Security Council be
Impartial in the Peaceful Settlement of Disputes?, 18.
236
Questions of Interpretation and Application of the 1971 Montreal Convention arising from
the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya/U.S.), Preliminary Objections,
Judgment, 1998 I.C.J. 115, ¶¶40&42.
237
S.C. Res. 276, preamble (1970).
238
U.N. Charter, art. 34; S.C. Res. 99997, preamble (2022).
239
Kosovo,¶118.
240
Namibia,¶114.
241
Kosovo,¶118.
30

Memorial for Respondent - Pleadings

binding.242 This is consistent with the practice of the UNSC to use stronger language such as
“requires”,243 “demands”,244 and “warns”245 in Resolutions they consider binding.246 Given that
the no such language was used here, Resolution 99997 can only be interpreted as non-binding.

c. The UNSC’s refusal to take additional measures against Remisia affirms the
non-binding character of Resolution 99997.

Applying the VCLT [“Vienna Convention on Law of the Treaties”]247 analogously,248

where contemporaneous acts or subsequent conduct may be used to interpret the intent behind a
treaty,249 and consistent with the post-authorization practice of the UNSC, 250 this Court may
likewise look into the UNSC’s actions after the adoption of Resolution 99997 in determining its
binding character.

In Lockerbie, for instance, the UNSC adopted Resolution 748 to reiterate the binding
obligations of Libya initially contained in an earlier resolution. Unlike in Lockerbie, however,
the UNSC refused to adopt additional measures against Remisia 251 even as the latter refused to
allow Dr. Malex’s entry. This only confirms that the UNSC did not intend Resolution 99997 to
impose binding obligations upon Remisia.

242
S.C. Res 582, ¶¶2&4 (1986).
243
S.C. Res. 1965, ¶3 (2006).
244
S.C. Res. 1965, ¶¶2&4 (2006).
245
Gruenberg, An Analysis of United Nations Security Council Resolutions, 41 CASE
WESTERN RESERVE J. OF INT’L L. 2, 439 (2009).
246
Rep. of the S.C., 2008 U.N. Doc. A/63/1 at 10.
247
VCLT, art. 31.
248
Kosovo,¶94; Wood, The Interpretation of Security Council Resolutions, Revisited, at 7-8.
249
VCLT, art. 31(c); Peter Tzeng, The Principles of Contemporaneous and Evolutionary
Interpretation, in BETWEEN THE LINES OF THE VIENNA CONVENTION: CANONS OF
CONSTRUCTION AND OTHER PRINCIPLES OF INTERPRETATION IN PUBLIC INTERNATIONAL
LAW, 33-34 (2019).
250
S.C. Res. 787 (1992); S.C. Res. 1141 (2002); S.C. Res. 1244 (1999); S.C. Res. 2379
(2017); S.C. Res 2396 (2017); S.C. Res. 446, ¶¶2&3 (1979); S.C. Res 298, ¶¶2&4 (1971).
251
Compromis,¶59.
31

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3. Even assuming Resolution 99997 imposes binding obligations upon Remisia,

Remisia’s act of denying Dr. Malex’s entry is not inconsistent with such
obligations.

In interpreting UNSC resolutions, this Court in Kosovo stated that resort must be had to
252
the resolution’s language, considering its context and object and purpose, and previous
practice of the UNSC.253 Here, the object and purpose of Resolution 99997 is to investigate the
circumstances surrounding the revocation of the Sterren Forty’s citizenship, and establishing for
that purpose, the UNIMR.254 To achieve this, Resolution 99997 calls upon Remisia “to cooperate
fully with the [UNIMR] by providing access to all documentary, testimonial, and physical
information and evidence that is deemed relevant to the [UNIMR].” 255 ‘Cooperating fully’, as
understood in its ordinary meaning, means taking actions to serve and accomplish a specific
objective.256

In Resolution 1267 concerning Al Qaida, the UNSC demanded that States “cooperate
fully” with the UNSC Committee257 in its tasks related to the suppression of terrorism, which
include recommending and reporting its counter terrorism efforts and designating financial
resources for implementation.258 In “cooperating fully,” States were not required to report or act
on every single task as listed by the UNSC and they maintained the discretion to choose how
best to achieve the object and purpose of Resolution 1267. This is consistent with UNSC’s
previous practice involving the establishment of investigation missions, 259 which did not
necessitate the entry of mission members provided the purpose of those missions can be achieved
through other means.

252
Kosovo, ¶118.
253
Id.
254
Compromis, ¶48.
255
S.C. Res. 99997, ¶2.
256
Wolfrum, Cooperation, in MAX PLANCK ENCYCLOPEDIAS OF INTERNATIONAL LAW, ¶1
(2012).
257
S.C. Res 1267, ¶6 (2006).
258
Id. ¶9.
259
S.C. Res. 2379, ¶5(2007); S.C. Res. 2640, ¶26(2022); S.C. Res. 2625, ¶3(2022).
32

Memorial for Respondent - Pleadings

Hence, Remisia’s denial of Dr. Malex’s entry does not violate Resolution 99997 because
there are other means of achieving its object and purpose, such as providing the UNIMR with
information upon its request. To be sure, had the UNSC intended to absolutely require that
Remisia allow the entry of Mission Members, it could have easily said so in the Resolution as it
has done so in the past.260

260
S.C. Res 1312, ¶3 (2000); S.C. Res 2518, ¶2 (2020); S.C. Res. 568, ¶8 (1985); S.C. Res.
289, ¶3 (1970); S.C. Res. 294, ¶4 (1971); S.C. Res. 295, ¶2 (1971); UNSC, Repertoire of
the Practice of the Security Council art. 34, 1946-1951, 392 (1954).
33

Memorial for Respondent - Pleadings

PRAYERS FOR RELIEF

For the aforementioned reasons, the Kingdom of Remisia, respectfully prays that this Court:

I. DECLARE that Antrano lacks standing to bring the matter of deprivation of nationality
of the “Sterren Forty” to this Court;

II. DECLARE that Remisia did not violate international law when it deprived the “Sterren
Forty” of their Remisian citizenship in accordance with the DCA;

III. DECLARE that Antrano violated international law when it denied Saki Shaw, a
Remisian citizen, access to Remisian consular representatives while she was held
prisoner in Antrano; and

IV. DECLARE that Remisia did not violate international law by refusing to allow Dr. Malex
to enter Remisia.

Respectfully submitted,

AGENTS FOR RESPONDENT