ANNÉE · YEAR

2019

COUR INTERNATIONALE INTERNATIONAL COURT

DE JUSTICE OF JUSTICE

THE CASE CONCERNING THE HELIAN HYACINTH

(THE STATE OF ADAWA v. REPUBLIC OF RASASA)

________

AFFAIRE CONCERNANT LA JACINTHE HELIANE

(ETAT D’ADAWA c. REPUBLIQUE DE RASASA)

________

MEMORIAL FOR THE APPLICANT

MÉMORIAL POUR LE DEMANDEUR

 TABLE OF CONTENTS

STATEMENT OF JURISDICTION ........................................................................................ 1

QUESTIONS PRESENTED ....................................................................................................... 2

STATEMENT OF FACTS ........................................................................................................ 3-7

SUMMARY OF PLEADINGS ............................................................................................... 8 - 21

PRAYER FOR RELIEF …………………………………………………………………......22

 STATEMENT OF JURISDICTION

The State of Adawa (“Adawa”) and the Republic of Rasasa (“Rasasa”) have submitted by

Special Agreement this present dispute concerning the differences between the parties

concerning the Helian Hyacinth and other matters to the International Court of Justice (“I.C.J.”),

and have transmitted a copy thereof to the Registrar of the Court in accordance with Article 48 of

the Statute of the I.C.J. (“Statute”) and to Articles 31,44, 45(1), 48, 49 and 80 of the Rules of

Court. Therefore, both parties have accepted the jurisdiction of the Court pursuant to Article 80

of the Rules of Court.

Adawa undertakes to accept the judgment of the Court as final and binding and shall

execute it in utmost good faith.

 1

QUESTIONS PRESENTED

I.

Whether this Honorable Court has jurisdiction over Adawa’s claims because Adawa is a party to

the Treaty of Botega;

II.

Whether the development and deployment of the WALL along the border between Adawa and

Rasasa is in violation of international law, and order that the WALL be dismantled and removed

forthwith;

III.

Whether the claim of Adawa that Rasasa’s imposition of tariffs on Helian products from Adawa

violates the CHC Treaty, and that Adawa is entitled to compensatory damages reflecting

financial harm it has suffered to date, such amount to be determined in subsequent proceedings;

and

IV.
Whether the arrest and detention of Darian Grey were inconsistent with Adawa’s obligations

under international law, and that Adawa may proceed to render her to the International Criminal

Court.

STATEMENTS OF FACYS

Region of Crosinia

The Region wherein the State of Adawa and Republic of Rasasa are neighboring countries,

It is a subtropical and semi-arid inland expanse formed by hills and valleys where citrus fruits,

olives, grapes, dates and spices are grown.

Helian Hyacinth

Helian Hyacinth is a flowering plant best known for producing the flavoring spice Helian,

which is derived from its pollen and which has a weight-to-value ratio comparable to that of

saffron. According to well-established botanical scholarship, it takes no less than 20 years for

newly planted Helian bulbs to produce export-quality spice.

Adawa-Zeitunia Union (AZU)

Adawa, Zeitounia, and Rasasa – met in the Rasasan capital of Botega and concluded

negotiations ending the bloodshed and desired to save succeeding generations of Crosinians from

the scourge of war . The provinces of Adawa and Zeitounia united to form the Adawa-Zeitounia

Union (AZU), an independent monarchy, as of that date.

The newly installed President of Rasasa and Queen Goleta of the AZU signed the Treaty of

Botega on Armistice and Pacification (“the Treaty of Botega”).

Treaty of Botega on Armistice and Pacification (1 November 1929)

3.

Main Content: Desired to save succeeding generations of Crosinians from the scourge of war.

Renounce all recourse to armed force as an instrument of policy among Crosinian nations.

1. Establishment of an armistice between the armed forces of the two High Contracting

Parties as an indispensable step toward the cessation of armed conflict and the restoration

of peace and security to the peoples of Crosinia.

Crosinian Helian Community (CHC)

Main Content:

1. Agreement between Rasasa and Adawaa to impose no customs duties within the CHC on

Helian spice or the equipment and materials used to harvest or process the Helian

hyacinth.
2. To share their agronomic, scientific, and economic data regarding the growing,

harvesting, processing, and commercializing of the Helian hyacinth.

General Agreement on Tariffs and Trade (GATT).

Both States became original members of the World Trade Organization (WTO) in 1995 and

remain members. When they joined the GATT, both States submitted their then-applicable tariff

schedules, and agreed that these would be “bound rates” applicable on a most favored nation

(MFN) basis. With respect to Helian plants, bulbs, pollen, spice, and other material, the bound

rates were zero.

 4

Ms. Darian Grey

One of the wealthiest citizens of Rasasa .She is the chief executive officer of the Rasasan

Robotics Corporation (RRC), a privately-held company headquartered in Botega. In 1998,

Forbes Magazine named her one of “The 20 Women Who Will Make a Mark in the 21 st Century.”

In 2000, Human Rights Watch accused Ms. Grey and RRC of “active complicity in keeping

some of the worst despotic regimes in the world securely in power.”

Mr. Pindro was elected president of Rasasa in January 2017. He quickly named officers of the

new government, appointing Darian Grey as Minister of Foreign Affairs.

Rasasan Robotics Corporation (RRC)

Company of Ms Darian Grey. This company advises governments on computerized and

autonomous defense and security systems; designs, develops and implements these systems in

conflict zones around the world; and provides training in their use

Hurricane Makan.

A cyclone that exceeded death toll by 8,000. It destroyed the entire towns, roads and power

lines and major urban centers suffered historic flooding. More than 60% of the Helian hyacinths

in Rasasa, 20% of those in Adawa, and between 15% and 20% of those in the other four States

were destroyed. Unemployment began to increase across the Region as farms, their suppliers,

and the businesses that depended on them became no longer viable.

 5

Rasasan Helian Growers Association (RHGA)

A prominent industry group based in Botega that ascertained that the global Helian market

of the region had declined sharply relative.

It expressed alarm that Rasasan Helian processors had increasingly begun to purchase their raw

material from Adawan Helian farmers in lieu of Rasasan suppliers, who had been unable to meet

their Helian pollen requirements. The RHGA’s report concluded, “if current trends continue,

many Rasasan Helian farms will collapse in five to ten years, with catastrophic effects for the

Rasasan economy and Rasasan society in general.”

Weaponized Autonomous Limitation Line” (or “the WALL”)

It is an advanced technology to deter and apprehend criminals, while using force only when

absolutely necessary and when the chance of targeting innocents was reduced to virtually zero.

The physical infrastructure of the WALL consists of 10-meter-tall metal towers, each topped with

an advanced surveillance and response unit. With 360-degree motion-sensing, high-definition,

and infrared cameras, each surveillance unit can closely monitor all ground and aerial activity

within a 130,000 square meter area around the base of its tower, enabling the towers to be placed

as far as 200 meters from one another without sacrificing coverage.

It was contended by President Tihmar that the WALL would be especially valuable in promoting

“the revival of our Region’s Helian industry and those who depend on it.”
 6

United Nations Office on Drugs and Crime (UNODC)

They reported the existence of a new and major player in international trafficking of illegal

drugs. The previously unorganized Adawan bandits have used their profits to create a structured

and well-armed militia, which uses its permanent camps within Rasasan Territory as a

headquarters for its global enterprise.

International League for the Supportt of Agriculture (ILSA)

A non-profit and non-partisan organization headquartered in Ottawa devoted to “supporting

farmers and agri-business worldwide” – published a study entitled “Another Rise and Fall: The

Market for Helian Spice Around the World, 1975-2018. It projected that the losses would

increase in the coming years.

Second World War II

This led to Rasasa’s substantial participation in the international technology sector, that

eventually developed the Robust Robotics Industry.

 7

SUMMARY OF PLEADINGS

A. THIS HONORABLE COURT HAS JURISDICTION OVER ADAWA’S CLAIMS

BECAUSE ADAWA IS A PARTY TO THE 1929 TREATY OF BOTEGA
 8
B. ADJUDGE THAT RASASA’S DEVELOPMENT AND DEPLOYMENT OF
THE WALL ALONG THE BORDER BETWEEN ADAWA AND RASASA IS
IN VIOLATION OF INTERNATIONAL LAW, AND ORDER THAT THE
WALL BE DISMANTLED AND REMOVED FORTHWITH

Under Art. 6 of International Covenant on Civil and Political Rights:

1. Every human being has the inherent right to life. This right shall be protected by law. No

one shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed

only for the most serious crimes in accordance with the law in force at the time of the

commission of the crime and not contrary to the provisions of the present Covenant and to the

Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only

be carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this

article shall authorize any State Party to the present Covenant to derogate in any way from any

obligation assumed under the provisions of the Convention on the Prevention and Punishment of

the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the

sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all

cases.
5. Sentence of death shall not be imposed for crimes committed by persons below eighteen

years of age and shall not be carried out on pregnant women.

The deployment of the WALL violates International Covenant on Civil and Political Rights

because it can instantaneously and appropriately decide whether and how to respond to any given

threat without any intervention by human actors. Thus, it can arbitrarily deprive anyone’s life

who would come near the WALL without giving such person an opportunity to be heard or at

least mitigate his sentence.

It may be argued by the respondent that such deployment of WALL is consistent with the

Doctrine of Deterrence under Article 51 of the UN Charter. This Doctrine refers to the right to

use those weapons in the exercise of the right to self-defense against an armed attack threatening

the vital security interests of the State is reserved on the other. However, the use of weapon is not

absolute. Legality of the Use of a State of Nuclear Weapons (1996) provides that The entitlement

to resort to self-defense under Article 51 is subject to the conditions of necessity and

proportionality. Since the respondent is the one alleging that the deployment of such weapon was

necessary and proportional for their self- preservation, has the burden of proof.

States are obliged to undertake an environmental impact assessment (“EIA”) when there is a

risk that a proposed industrial activity may have adverse impact on a shared resource.

The assessment must address the substantive obligations of the parties, taking into

account the possibility of alternatives, the populations likely affected, and the consultation with

affected parties in the context of the environmental impact assessment. The transboundary
damage suffered by a State must be proven by clear and convincing evidence, and must be

“serious” 1 or “significant.” 2

10

Damage must be greater than mere nuisance or insignificant harm. 3 To prove damage,

the independence of experts is not determinative of the probative value of expert evidence. 4

Resort to news reports or photographs may be had if the same is corroborative of other pieces

of evidence. 5

Whenever action may cause significant harm, even if the possibility or extent of the exact

harm is unproven, precautionary measures, including cessation, must be applied.6

--------------------------------------
¹
Pulp Mills, ¶101. See also Gabčikovo-Nagymaros, ¶115; XUE, supra note 90, at 163.
²
Trail Smelter, at 1965.
³
In the Arbitration Regarding the Iron Rhine Railway (Belg. v. Neth), 23 R.I.A.A. 35 (Perm. Ct.
Arb. 2005), ¶59.
4 Pulp Mills, ¶¶166-168.
5 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3 ¶63.
6 Rio Declaration, principle 15.
 11

C. THAT THIS HONORABLE COURT DECLARE THAT IT MAY ADJUDICATE

ADAWA’S CLAIM THAT RASASA’S IMPOSITION OF TARIFFS ON HELIAN
PRODUCTS FROM ADAWA VIOLATES THE CHC TREATY, AND THAT ADAWA
IS ENTITLED TO COMPENSATORY DAMAGES REFLECTING THE
FINANCIAL HARM IT HAS SUFFERED TO DATE, SUCH AMOUNT TO BE
DETERMINED IN SUBSEQUENT PROCEEDINGS;

Article 36 par. 2 The states parties to the present Statute may at any time declare that they
recognize as compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning:
1. the interpretation of a treaty;
2. any question of international law;
3. the existence of any fact which, if established, would constitute a breach of an
international obligation;
4. the nature or extent of the reparation to be made for the breach of an international
obligation.

Treaty Establishing the Crosinian Helian Community

Article 1
The High Contracting Parties to this Treaty – the six independent and sovereign States of the
Crosinian Region – hereby establish the Crosinian Helian Community. The Member States of
this Community solemnly pledge their everlasting commitment to the sustainable
cultivation of the Helian hyacinth.

Article 3
To facilitate the development and health of the Helian industry, the Member States agree to
impose no customs duties on Helian products, as well as goods that are primarily or
exclusively used in the harvesting or processing of the Helian hyacinth, which originate
from the territory of a Member State.

World Trade Organization Agreement Series 2

General Agreement on Tariffs and Trade (GATT)
Article 37
 1. The developed contracting parties shall to the fullest extent possible _ that is, except
when compelling reasons, which may include legal reasons, make it impossible _ give
effect to the following provisions:

12
a) accord high priority to the reduction and elimination of barriers to products
currently or potentially of particular export interest to less-developed contracting
parties, including customs duties and other restrictions which differentiate
unreasonably between such products in their primary and in their processed forms;

b) refrain from introducing, or increasing the incidence of, customs duties or non-
tariff import barriers on products currently or potentially of particular export interest to
less-developed contracting parties; and

The circumstances support the creation of a binding obligation

The legal effect of a statement depends on the circumstances in which it was

made.7 Even though other States need not accept the obligation,8 particular

importance should be given to the reaction of other States in determining a

statement’s legal effect.9 Unilateral declarations are not made in vacuo, and the

declarant is bound to assume that other States might rely on them.

i. The hurricane were not foreseen.

A fundamental change in circumstances must be “not foreseen by the parties.”10

Obligations radically transform when they are “something essentially different from that
11
originally undertaken.” While obligations need necessarily not become impossible, their

continued performance must somehow be much more onerous or unreasonable.12

--------------------------------------

7 Armed Activities, ¶49; Nuclear Tests, ¶51; Frontier Dispute, ¶39-40.

8 Nuclear Tests, ¶46.

9 Unilateral Declarations Guidelines, principle 3. For examples, see ILC, Guiding Principles
applicable to unilateral declarations of States capable of creating legal obligations, with
commentaries thereto, II.2 YILC 369, 372 notes 937-40 (2006).
10 VCLT, art. 62(1); Gabčikovo-Nagymaros, ¶104.
 13

D. THAT THIS HONORABLE DECLARE THAT THE ARREST AND DETENTION OF

DARIAN GREY WERE CONSISTENT WITH ADAWA’S OBLIGATIONS UNDER
INTERNTIONAL LAW, AND THAT ADAWA MAY PROCEED TO RENDER HER
TO THE INTERNATIONAL CRIMINAL COURT.

The Prosecutor of the International Criminal Court possesses the authority to

undertake an obligation following the Rome Statute for the arrest of Darian Grey.
E.
Persons representing a state in specific fields may be authorized by the latter to make
legally binding statements. As held in the Armed Activities case, “holders of
technical ministerial portfolios exercising powers in their field of competence in the area
of foreignrelations, and even of certain officials,” can bind states with their
declarations.In this regard, international courts have looked into the statements of
Ministers of Defense and Ministers of Justice.

RESPONSIBILITY OF STATES FO INTERNATIONALLY WRONGFUL ACT 2001

The foundations of State responsibility

What is now Part One of the Articles (The Internationally Wrongful Act of the State) was the
first to receive a coherent and durable structure already under Special Rapporteur Ago. The 35
draft Articles adopted between 1969 and 1980 proved particularly influential, inter alia, with
regard to rules of attribution and general justifications and excuses for internationally wrongful
acts. They have been frequently referred to by scholars and cited by courts.

The structure then devised for the five chapters of Part One of such draft has remained
unaltered.

Part One establishes the fundamental postulates defining the basic features of State
responsibility for internationally wrongful acts.

An initial, fundamental principle concerning State responsibility is expressed by article 1,

which establishes: “[e]very international wrongful act of a State entails the international
responsibility of that State”. It is of particular significance that such a provision is not limited, as
had been proposed, to the responsibility of States towards other States, which would have
significantly curtailed the scope of the obligations covered by the Articles and could have stifled
the development of international law. Furthermore, article 1 makes no distinction between treaty
and non-treaty obligations: no categorical differentiation is therefore drawn between
responsibility ex contractu and ex delicto, nor is any distinction made, at this level of generality,
between bilateral and multilateral obligations (see also article 12).

14

Article 2 sets out the required elements for the existence of an internationally wrongful act:
(a) conduct attributable to the State, which (b) is inconsistent with its international obligations.
One notable feature of this provision consists in the absence of any requirement concerning fault
or a

wrongful intent on the part of the State in order to ascertain the existence of an
internationally wrongful act. This does not, of course, imply that the element of fault has no
place in the law of State responsibility. Rather, it reflects the consideration that different primary
rules on international responsibility may impose different standards of fault, ranging from “due
diligence” to strict liability.

The position expressed by the Articles indicates that fault is not necessarily required in every
case for international responsibility to arise. It may be required, of course, in some or even many
cases, but this determination is left to primary rules on State obligations, with the Articles taking
a neutral position in this regard, neither requiring nor excluding these elements in any given case.

As for the attribution of a particular conduct to a State, the provisions of Chapter II of Part
One specify the scope of this concept, both from a subjective and a functional point of view (see
the notion of “organ” of a State under article 4; of a person or group directed or controlled by the
State under article 8; of an organ placed at the disposal of the State by another State under article
6; of a person or entity exercising elements of governmental authority under article 5; of persons
or groups acting in the absence or default of official authorities under article 9; of acts of
insurrectional or other movements, under article 10). Chapter II closes with a provision on
responsibility for conduct acknowledged and accepted by a State as its own (article 11), on the
analogy of ratification in the domestic law of agency.

Certain significant aspects of the temporal dimension of the breach of an international

obligation are dealt with in Chapter III of Part One (the tempus regit actum principle (article
13)); the extension in time of the breach (article 14); and breach consisting of a composite act
(article 15). But no further analytical distinctions are attempted amongst different kinds of
breach, or for that matter different classes of obligation. It should be noted that a particularly
refined and elaborate categorization of internationally wrongful acts had been developed by
Special Rapporteur Ago. Apart from the distinction between crimes and delicts (later
abandoned), Professor Ago’s draft articles concerning these matters drew distinctions
amongst, inter alia, obligations of conduct, of result and of prevention, as well as amongst
continuing, composite and complex wrongful acts. The final text thus represents a considerable
simplification, leaving much to the interpretation of the primary rule.

The attribution of responsibility to a State is also dealt with in relation to possible connections
between a State and internationally wrongful acts of another State, in particular in cases of aid or
assistance (article 16), direction and control (article 17) or coercion (article 18); these are
included in Chapter IV of Part 1.

15

The rationale underlying these provisions is that the State not directly committing the wrong
is nonetheless held responsible if it has knowledge of the circumstances of the act and if the act
would be, if committed by such State (or by the coerced State, in the absence of coercion), an
internationally wrongful act.

With regard to the fundamental notion of wrongfulness, Chapter V of Part One enumerates
“circumstances precluding wrongfulness” – what, in a forensic context, would be called
defences. These are: consent (article 20), self-defence (article 21), legitimate countermeasures
(article 22; further elaborated upon in Part Three, Chapter II); force majeure (article 23); distress
(article 24)and necessity (article 25).

The consequences of State responsibility

Part Two of the Articles deals mainly with two issues: on the one hand, it specifies the most
significant consequences of State responsibility for an internationally wrongful act, namely the
obligations of cessation, non-repetition and reparation; on the other hand, it is concerned with a
particular category of wrongful acts: those acts that, replacing the problematic category of
“international crimes”, are now termed “serious breaches of obligations under peremptory norms
of general international law”.

Chapter I of Part Two sets out the consequences of an internationally wrongful act: such an
act does not affect the continued duty by the responsible State to perform the obligation thus
breached (article 29); if the breach is continuing, the responsible State is under an obligation to
cease its conduct (article 30, paragraph a) and, if circumstances so require, to offer appropriate
assurances and guarantees of non-repetition (article 30, paragraph b). In addition, the
internationally wrongful act entails for the responsible State the duty to make full reparation for
the injury caused (article 31).

As for the continued duty of performance, its status amongst the consequences of an
internationally wrongful act is uncontroversial, as is the principle that the domestic law of the
responsible State is irrelevant as an excuse for failure to comply with the obligations flowing
from its international responsibility for a wrongful act (article 32).

With regard to the duty of cessation, it should be noted that, already under Special Rapporteur
Arangio-Ruiz, the ILC had come to the conclusion that such a remedy (together with non-
repetition) had equal status with reparation. Treating the two together was thought conducive to a
more balanced regime, more attentive to the real concerns of governments in most disputes about
responsibility, where reparation is usually not the only issue, and may not be an issue at all.
 As for assurances and guarantees of non-repetition, their status as consequences of breaches
of international obligations was more debated.

16

In particular, it was a matter of discussion whether they should be considered more akin to
cessation or to reparation and, more radically, whether they should be regarded as an autonomous
consequence of international responsibility at all.

With regard to the latter question, the decisive element was the consistent support of
Governments in favour of their inclusion. It should also be noted that the specification that
assurances and guarantees of non-repetition are appropriate only “if circumstances so require”
(article 30, paragraph b) makes them a flexible instrument; they are not a necessary consequence
of an internationally wrongful act. They are likely to be considered appropriate only where there
is a real risk of repetition causing injury to a requesting State or others on whose behalf it is
acting.

RIGHT TO LIBERTY AND SECURITY OF PERSONS ( UNHRC)

Human Rights Committee

General comment No. 35

Article 9 (Liberty and security of person)

II.Arbitrary detention and unlawful detention

The right to liberty of person is not absolute. Article 9 recognizes that sometimes deprivation of
liberty is justified, for example, in the enforcement of criminal laws. Paragraph 1 requires that
deprivation of liberty must not be arbitrary, and must be carried out with respect for the rule of
law.

The second sentence of paragraph 1 prohibits arbitrary arrest and detention, while the third
sentence prohibits unlawful deprivation of liberty, i.e., deprivation of liberty that is not imposed
on such grounds and in accordance with such procedure as are established by law. The two
prohibitions overlap, in that arrests or detentions may be in violation of the applicable law but
not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful. Arrest or detention
that lacks any legal basis is also arbitrary. Unauthorized confinement of prisoners beyond the
length of their sentences is arbitrary as well as unlawful; the same is true for unauthorized
extension of other forms of detention. Continued confinement of detainees in defiance of a
judicial order for their release is arbitrary as well as unlawful.

An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The
notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more
broadly to include elements of inappropriateness, injustice, lack of predictability and due process
of law, as well as elements of reasonableness, necessity and proportionality. For example,
remand in custody on criminal charges must be reasonable and necessary in all the
circumstances. Aside from judicially imposed sentences for a fixed period of time, the decision
to keep a person in any form of detention is arbitrary if it is not subject to periodic re-evaluation
of the justification for continuing the detention.

17

The term “arrest” refers to any apprehension of a person that commences a deprivation of liberty,
and the term “detention” refers to the deprivation of liberty that begins with the arrest and
continues in time from apprehension until release. Arrest within the meaning of article 9 need not
involve a formal arrest as defined under domestic law. When an additional deprivation of liberty
is imposed on a person already in custody, such as detention on unrelated criminal charges, the
commencement of that deprivation of liberty also amounts to an arrest.

The Covenant does not provide an enumeration of the permissible reasons for depriving a person
of liberty. Article 9 expressly recognizes that individuals may be detained on criminal charges,
and article 11 expressly prohibits imprisonment on ground of inability to fulfil a contractual
obligation. Other regimes involving deprivation of liberty must also be established by law and
must be accompanied by procedures that prevent arbitrary detention. The grounds and
procedures prescribed by law must not be destructive of the right to liberty of person. The regime
must not amount to an evasion of the limits on the criminal justice system by providing the
equivalent of criminal punishment without the applicable protections. Although conditions of
detention are addressed primarily by articles 7 and 10, detention may be arbitrary if the manner
in which the detainees are treated does not relate to the purpose for which they are ostensibly
being detained. The imposition of a draconian penalty of imprisonment for contempt of court
without adequate explanation and without independent procedural safeguards is arbitrary.

To the extent that States parties impose security detention (sometimes known as administrative
detention or internment) not in contemplation of prosecution on a criminal charge, the
Committee considers that such detention presents severe risks of arbitrary deprivation of liberty.
Such detention would normally amount to arbitrary detention as other effective measures
addressing the threat, including the criminal justice system, would be available. If, under the
most exceptional circumstances, a present, direct and imperative threat is invoked to justify the
detention of persons considered to present such a threat, the burden of proof lies on States parties
to show that the individual poses such a threat and that it cannot be addressed by alternative
measures, and that burden increases with the length of the detention. States parties also need to
show that detention does not last longer than absolutely necessary, that the overall length of
possible detention is limited and that they fully respect the guarantees provided for by article 9 in
all cases. Prompt and regular review by a court or other tribunal possessing the same attributes of
independence and impartiality as the judiciary is a necessary guarantee for those conditions, as is
access to independent legal advice, preferably selected by the detainee, and disclosure to the
detainee of, at least, the essence of the evidence on which the decision is taken.
Egregious examples of arbitrary detention include detaining family members of an alleged
criminal who are not themselves accused of any wrongdoing, the holding of hostages and arrests
for the purpose of extorting bribes or other similar criminal purposes.

18

Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the
Covenant is arbitrary, including freedom of opinion and expression (art. 19), freedom of
assembly (art. 21), freedom of association (art. 22), freedom of religion (art. 18) and the right to
privacy (art. 17). Arrest or detention on discriminatory grounds in violation of article 2,
paragraph 1, article 3 or article 26 is also in principle arbitrary. Retroactive criminal punishment
by detention in violation of article 15 amounts to arbitrary detention. Enforced disappearances
violate numerous substantive and procedural provisions of the Covenant and constitute a
particularly aggravated form of arbitrary detention. Imprisonment after a manifestly unfair trial is
arbitrary, but not every violation of the specific procedural guarantees for criminal defendants in
article 14 results in arbitrary detention.

Detention in the course of proceedings for the control of immigration is not per se arbitrary, but
the detention must be justified as reasonable, necessary and proportionate in the light of the
circumstances and reassessed as it extends in time. Asylum seekers who unlawfully enter a State
party’s territory may be detained for a brief initial period in order to document their entry, record
their claims and determine their identity if it is in doubt. To detain them further while their
claims are being resolved would be arbitrary in the absence of particular reasons specific to the
individual, such as an individualized likelihood of absconding, a danger of crimes against others
or a risk of acts against national security. The decision must consider relevant factors case by
case and not be based on a mandatory rule for a broad category; must take into account less
invasive means of achieving the same ends, such as reporting obligations, sureties or other
conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial
review. Decisions regarding the detention of migrants must also take into account the effect of
the detention on their physical or mental health. Any necessary detention should take place in
appropriate, sanitary, non-punitive facilities and should not take place in prisons. The inability of
a State party to carry out the expulsion of an individual because of statelessness or other
obstacles does not justify indefinite detention. Childrenshould not be deprived of liberty, except
as a measure of last resort and for the shortest appropriate period of time, taking into account
their best interests as a primary consideration with regard to the duration and conditions of
detention, and also taking into account the extreme vulnerability and need for care of
unaccompanied minors.

States parties should revise outdated laws and practices in the field of mental health in order to
avoid arbitrary detention. The Committee emphasizes the harm inherent in any deprivation of
liberty and also the particular harms that may result in situations of involuntary hospitalization.
States parties should make available adequate community-based or alternative social-care
services for persons with psychosocial disabilities, in order to provide less restrictive alternatives
to confinement. The existence of a disability shall not in itself justify a deprivation of liberty but
rather any deprivation of liberty must be necessary and proportionate, for the purpose of
protecting the individual in question from serious harm or preventing injury to others. It must be
applied only as a measure of last resort and for the shortest appropriate period of time, and must
be accompanied by adequate procedural and substantive safeguards established by law.

19

The procedures should ensure respect for the views of the individual and ensure that any
representative genuinely represents and defends the wishes and interests of the individual. States
parties must offer to institutionalized persons programmes of treatment and rehabilitation that
serve the purposes that are asserted to justify the detention. Deprivation of liberty must be re-
evaluated at appropriate intervals with regard to its continuing necessity. The individuals must be
assisted in obtaining access to effective remedies for the vindication of their rights, including
initial and periodic judicial review of the lawfulness of the detention, and to prevent conditions
of detention incompatible with the Covenant.

The Covenant is consistent with a variety of schemes for sentencing in criminal cases. Convicted
prisoners are entitled to have the duration of their sentences administered in accordance with
domestic law. Consideration for parole or other forms of early release must be in accordance
with the law and such release must not be denied on grounds that are arbitrary within the
meaning of article 9. If such release is granted upon conditions and later the release is revoked
because of an alleged breach of the conditions, then the revocation must also be carried out in
accordance with law and must not be arbitrary and, in particular, not disproportionate to the
seriousness of the breach. A prediction of the prisoner’s future behaviour may be a relevant
factor in deciding whether to grant early release.

When a criminal sentence includes a punitive period followed by a non-punitive period intended
to protect the safety of other individuals, then once the punitive term of imprisonment has been
served, to avoid arbitrariness, the additional detention must be justified by compelling reasons
arising from the gravity of the crimes committed and the likelihood of the detainee’s committing
similar crimes in the future. States should only use such detention as a last resort and regular
periodic reviews by an independent body must be assured to decide whether continued detention
is justified. State parties must exercise caution and provide appropriate guarantees in evaluating
future dangers. The conditions in such detention must be distinct from the conditions for
convicted prisoners serving a punitive sentence and must be aimed at the detainee’s rehabilitation
and reintegration into society. If a prisoner has fully served the sentence imposed at the time of
conviction, articles 9 and 15 prohibit a retroactive increase in sentence and a State party may not
circumvent that prohibition by imposing a detention that is equivalent to penal imprisonment
under the label of civil detention.

The third sentence of paragraph 1 of article 9 provides that no one shall be deprived of liberty
except on such grounds and in accordance with such procedure as are established by law. Any
substantive grounds for arrest or detention must be prescribed by law and should be defined with
sufficient precision to avoid overly broad or arbitrary interpretation or application. Deprivation
of liberty without such legal authorization is unlawful. Continued detention despite an operative
(exécutoire) judicial order of release or a valid amnesty is also unlawful.

Article 9 requires that procedures for carrying out legally authorized deprivation of liberty
should also be established by law and States parties should ensure compliance with their legally
prescribed procedures.

20

Article 9 further requires compliance with domestic rules that define the procedure for arrest by
identifying the officials authorized to arrest or specifying when a warrant is required. It also
requires compliance with domestic rules that define when authorization to continue detention
must be obtained from a judge or other officer, where individuals may be detained, when the
detained person must be brought to court and legal limits on the duration of detention. It also
requires compliance with domestic rules providing important safeguards for detained persons,
such as making a record of an arrest and permitting access to counsel. Violations of domestic
procedural rules not related to such issues may not necessarily raise an issue under article 9.
 21

PRAYER FOR RELIEF

For the foregoing reasons, Adawa requests the Court to declare that:

This Honorable Court has jurisdiction over Adawa’s claims because Adawa is a party to the

1929 Treaty of Botega

Adjudge that Rasasa’s development and deployment of the wall along the border between

Adawa and Rasasa is in violation of international law, and order that the wall be dismantled and

removed forthwith

Adjudicate Adawa’s claim that Rasasa’s imposition of tariffs on Helian products from

Adawa violates the CHC treaty, and that Adawa is entitled to compensatory damages reflecting

the financial harm it has suffered to date, such amount to be determined in subsequent

proceedings;
 Declare that the arrest and detention of Darian Grey were consistent with Adawa’s

obligations under International Law, and that Adawa may proceed to render her to the

international criminal court.

Respectfully Submitted,

Agents of Adawa