Respondent Memorial 2011

7/29/2019 Respondent Memorial 2011

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TEAM CODE: ‘E’

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

YEAR 2011

THE CASE CONCERNING CONFLICTING ORDERS OF THE COURTS OF

BOLITA AND GARUNDI

THE R EPUBLIC OF BOLITA (APPLICANT)

V.

THE R EPUBLIC OF GARUNDI (R ESPONDENT)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE WRITTEN SUBMISSION FOR THE R ESPONDENT STATE

- REPUBLIC OF GARUNDI-

D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT

COMPETITION 2011



TABLE OF CONTENTS MEMORIAL FOR THE RESPONDENT STATE

D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

TABLE OF CONTENTS

INDEX OF AUTHORITIES................................................................................................I

STATEMENT OF JURISDICTION...................................................................................XI

STATEMENT OF FACTS..................................................................................................XII

QUESTIONS PRESENTED..............................................................................................XIV

SUMMARY OF ARGUMENTS........................................................................................XV

BODY OF ARGUMENTS

1 THE RESPONDENT STATE’S COURTS HAVE JURISDICTION AND THE

RESPONDENT STATE’S LAW IS THE APPLICABLE LAW TO DETERMINE

ROBERT’S CUSTODY ISSUE.......................................................................................2

1.1 STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY THEIR LAWS TO THEIR

RESIDENTS.........................................................................................................................3

1.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO THE CUSTODY DISPUTES...............5

1.3 IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE E U TREATY.........5

1.3.1 THE E U TREATY DOES NOT PROVIDE FOR RECOGNITION AND ENFORCEMENT OF EACH

OTHER’ S COURT ORDERS SANS JURISDICTION .....................................................................6

1.3.2 RESPECT AND COMITY FOR EACH OTHER’ S LAWS DOES NOT IMPLY COMPLETE ADOPTION

APPLICANT STATE ’ S LAWS ..................................................................................................7



EMILY’S CUSTODY ISSUE.........................................................................................12



TABLE OF CONTENTS MEMORIAL FOR THE RESPONDENT STATE

D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

2.1 THE RESPONDENT STATE BEING THE STATE OF EMILY‟S NATIONALITY AND DOMICILE HAS

JURISDICTION FOR HER CUSTODY ISSUE...........................................................................12

2.2

IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY RESIDENT IS BEST

SUITED TO DETERMINE MATTERS PERTINENT TO THE CHILD‟S CUSTODY..........................14

2.2.1 EMILY ’ S HABITUAL RESIDENCE IS THE RESPONDENT STATE .............................................15

2.2.2 THE APPLICANT STATE CANNOT CLAIM JURISDICTION ON THE BASIS OF “WRONGFUL

REMOVAL OR RETENTION ”..............................................................................................16

2.2.3 ARGUEDO , EMILY HAS NOT BEEN “WRONGFULLY REMOVED OR RETAINED”.......................17

2.3 IT IS IN EMILY‟S BEST INTERESTS THAT THE RESPONDENT STATE EXERCISE JURISDICTION

AND HER APPLICABLE LAW..............................................................................................17

2.4 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CUSTODY DISPUTES....................18

3 THE RESPONDENT STATE HAS NO INTERNATIONAL OBLIGATION TO

EXTRADITE JANE AND JANET................................................................................18

3.1 THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS

TREATY TO THAT EFFECT.................................................................................................19

3.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS............20

PRAYERS...........................................................................................................................XVII



INDEX OF AUTHORITIES MEMORIAL FOR THE RESPONDENT STATE

ID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

INDEX OF AUTHORITIES

UN DOCUMENTS AND R ESOLUTIONS Page No.

Declaration on Principles of International Law Concerning Friendly Relations and

Cooperation Among States, UNGA, 1970, 65 AJ (1971), 243

1

Statute of the ICJ (1945) T.S. No. 993, 59 Stat. 1055 14

United Nations Charter, as amended June 26, 1945, 892 U.N.T.S. 119 1

JUDICIAL DECISIONS

A.Z. v. B.Z., (Mass. 2000) 725 N.E.2d 1051 7

American Dredging Co. v. Miller , (1994) 510 U.S. 443, 449 n. 2. 8

Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Ser and Montenegro), [2007] I.C.J. Rep. ¶ 160 ff

3

Association of Lawyers for Peace and Four Other Organizations v. State of the

Netherlands, Nr C02/217HR; LJN: AN8071; NJ 2004/329.

9

Balfour v. Balfour , (1919) 2 KB 571 9

Barcelona Traction, Light & Power Co. (Belg. v. Spain), [1970] I.C.J. Rep. 3 2

Barned's Banking Co. v. Reynolds (1875), 36 U.C.Q.B. 256 (C.A.) 5

Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319 12

Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760 10

Boissevain v. Wiel, [1949] 1 K.B. 482, 490 (C.A.) 7

Breard v. Greene, (1998) 140 L.Ed. 2d 529 9

Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007) 6, 9, 17

Canada (Attorney General) v. Schulze (1901), [FN9 S.L.T. 4] 5

Canada Malting Co. v. Paterson Steamships, Ltd . (1932) 285 U.S. 413, 422 8

Case Concerning The Application Of The Convention Of 1902 Governing The

Guardianship Of Infants (Netherlands v. Sweden), [1958] I.C.J. Rep. 55

8, 9

Case Concerning Arrest Warrant Of 11 April 2000 (D.R.C.v. Bel) [2002] I.C.J. Rep. 3 18, 20

Case Concerning the Northern Cameroons (Cam v. UK), [1963] I.C.J. Rep. 3

Case Concerning the Payment of Various Serbian Loans Issued in France , (1929)

P.C.I.J., Ser. A, no. 20

7

Cavers (1972) 21 Am ULR 475. 14

Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),

[2008] I.C.J. Rep.

19

Coast Lines Ltd. v. Hudig & Veder Chartering NV , [1972] 1 ALL ER 451 8

Colt Industries, Inc v. Sarlie, ILR 42 108 1

Committee of US Citizens Living in Nicaragua v. Reagan case (1988) 859 F.2d 929 8




IID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Competence of the General Assembly for the Admission of a State to the United Nations ,

[1950] I.C.J. Rep. 4.

4

Continental Shelf Case (Libya v Malta), [1985] ICJ Rep 13 15

Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc. , (3d Cir. 1995) 63 F.3d 262 4

Cruse v. Chittum [1974] 2 ALL ER 940 (Family Division). 2

Decker (Lowd) v. Decker , (2001) Oh. 2279 6, 7

Deva Prasad Reddy v. Kamini Reddy, AIR 2002 KAR 356 5

Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 at 486, 487 9

E. Mohd. Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Md. 265. 5

Etler v. Kertesz , (1960) 26 D.L.R. (2D.) 209, 222 8

Falls v. Downie, p 871 F. Supp. 100 (D. Mass. 1994) 16

Feder v. Evans-Feder , 63 F.3d 217 (3d Cir. 1995) 14 Ferguson v. McKiernan, (Pa. Super. 2004) 855 A.2d 121, 2004 Pa. Super. 289 7

Fisheries Jurisdiction (Spain v. Canada), [1999] I.C.J. Rep. 3

Gauthier v. Routh (1843), 6 U.C.Q.B. (O.S.) 602 (C.A.) 5

Gilbert v. Gulf Oil Co, 330 U.S. 8

Golden Acres Ltd. v. Queensland Estates Pty. Ltd., [1969] St. Robert. Qd.378. 9

Grant v. Grant , 1931 S.C. 238. 12

Greece v. United Kingdom [1952] I.C.J. Rep. 3

Greenshields Inc. v. Johnston (1981) 119 D.L.R. (3r ) 714. 9

Heslop v. Heslop, (1958) 12 D.L.R. (2d) 591 2, 13

Hilton v. Guyot , (1895) 159 U.S. 113 6, 17, 20

Holden v. Holden, [1968] V.R. 334 2

I.R.C. v Duchess of Portland [1982] Ch.314. 12

I.R.C. v Lysaght [1928] A.C.234 12

In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260

Kan. 993, cert. denied 519 U.S. 870, 117 S. Ct. 185, 136 L. Ed. 2d 123 (1996)

1

In re Baby M , (N.J. 1988) 537 A.2d 1227 7, 9

In re Interest of R.C ., (Colo. 1989) 775 P.2d 27 7

In re J.D.M.C ., 2007 SD 97 (S.D. 2007) 12, 13

In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893 7

In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87 (1944). 3

In the Estate of Fuld (no 3) [1968] P.675, 685. 12

In the Interest of K.M.H., (2007) 169 P.3d at 1032. 1

International Woollen Mills v. Standard Wool (U.K.) Ltd . (2001) 5 SCC 265 5




IIID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, [1950] I.C.J. 3

Island of Palmas case (US/Netherlands), (1928) 2 RIAA 1

J.F. v. D.B., (Pa. Ct. Comm. Pl. 2004) 66 Pa. D. & C. 4th 1 7, 9

J.v. C. [1970] A.C. 668 2

Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 9

Jhordan C. v. Mary K ., (1986) 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 7

Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 7, 10

Kasikili/Sedudu Island (Botswana/Namibia), [1999] I.C.J. Rep. 3

Kay’s Leasing Corp. Pty. Ltd. v. Fletcher, (1964) 116 C.L.R. 124 9

Koons v. Koons 615 N.Y.S.2d 563 (Sup. Ct. 1994). 15

La Société du Gaz de Paris v. Société Anonyme de Navigation “Les Armateurs

Français”, [1925] 23 Lloyd's List. Rep. 209, 213 (Sess.)

8

LaGrand (Germany v. United States of America), [2001] I.C.J. Rep. 3

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:

Equatorial Guinea intervening), [2002] I.C.J. Rep.

4

Levene v. I.R.C. [1928] A.C. 217 12

Lindsay v. Miller , [1949] V.L.R. 13, 15. 8

Lithgow and Others v. the United Kingdom, ECHR, Series A, No. 102 4

Lotus case, (1927) PCIJ, Series A No. 10 at 18; 4 AD 1

M v M (Abduction: England and Scotland ), [1997] 2 FLR 263 at 274 (per Millet LJ) 15

Mackender v. Feldia A.G., [1967] 2 Q.B. 590,598 (C.A.). 7

Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689 2, 13

Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd.,(3d Cir.2006) 436 F.3d 349. 8

Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.

Bahrain), [1995] I.C.J. Rep.

3

Matalon v Matalon [1952] 12

McKee v. McKee, [1951] A.C. 352 (P.C.) 2, 13, 16

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA),

[1986] I.C.J. Rep.

3, 19

Miller v Teale [1954] 92 C.L.R. 406 12

Mohan Lal v. Prem Sukh, AIR 1956 Nag 273 5

Moran v Moran, [1997], SLT 541. 15

Moshen v. Moshen 715 F. Supp. 1063 (D. Wyo. 1989) 15

Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA 14

Oil Platforms (Islamic Republic of Iran v. United States of America), [2003] I.C.J. Rep. 3, 19




IVD. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

People of Saipan ex rel. Guerrero v. United States Department of Interior (1974) 502

F.2d 90

9

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981) 8

Questions of Interpretation and Application of 1971 Montreal Convention Arising from

Aerial Incident at Lockerbie (Lib. v. U.K.), [1992] I.C.J. Rep. 3

18

R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790 1, 7, 9, 10

Rainford, Boston and Graham v. Newell-Roberts, ILR 30, 106 1

Ralli Bros v. Compania Naviera Sota y Aznar, [1920] 2 K.B. 287 (C.A.). 8

Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588. 11, 12

Ratan Chand Hirachand v. Aksar Nawaz Jung, (1991) 3 SCC 67 9

Re A (Abduction: Habitual Residence), [1998] 1 FLR 497 15

Re B (Abduction: Children's Objections), [1998] 1 FLR 667 at 671 15 Re B (Minors) (Abduction), (No.2) [1993] 1 FLR 993 15

Re B.’s Settlement [1940] Ch. 54 2

Re C (Minors), [1978] 2 ALL ER 230 (Court of Appeal). 17

Re E (D) (an infact), [1967] Ch 761 (Court of Appeal) 10, 16

Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 at 556-557, CA 15, 16

Re Flynn (No. 1) [1968] 1 W.L.R.103, 113-115. 12

Re G (A Minor) (Enforcement of Access Abroad), [1993] Fam 216, CA 15

Re J (A Minor) (Abduction: Custody Rights), (1990) 2 AC 562 14

Re James (1908) 98 L.T. 438 11

Re Johnson [1903] 1 Ch 821. 14

Re L (Minors), [1974] 1 ALL ER 913 (Court of Appeal) 10, 16

Re L.L.A., (1981) 25 R.F.L. (2D) 208 2

Re M (Minors) (Residence Order: Jurisdiction), [1993] 1 FLR 495 15

Re Masterson, [1948] 2 D.L.R. 696 2, 13

Re O' Keefe [1940] Ch 124, (1940) 1 All ER 216 14

Re P (GE), (an infant) [1965] Ch. 568 (C.A.) 2, 13

Re S (A Minor) (Custody; Habitual Residence) ( 1998) AC 750, HL 14

Re TA (infants), (1972) 116 Sol JO 78. 16

Re Walker and Walker , (1970) 14 D.L.R. (3d) 342 2

Re Willoughby, (1885) 30 Ch.D. 324 (C.A.) 2, 13

Robertson v Roberston, [1998] SLT 468 15, 16

Rousillon v. Rousillon, (1880) 14 Ch. D. 351, 369 9

Royal Exchange Assurance v. Compania Naviera Santi, SA ILR 33, 173 1




VD. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Ruf v. Walter , [1990] 6 W.W.R. 661 (Sask. Q.B.) 5

Scheffer v. Scheffer , [1967] N.Z.L.R. 466, 468 2

Seymour v. Stotski (1992), 82 Ohio App. 3d 87, 93, 611 N.E.2d 454 7, 10

Sheehy v. Professional Life-Assurance Co. (1857), [FN2 C.B. (N.S.) 210 5

Sing v Singh [1998] SLT 1084. 15, 16

Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), [2002] I.C.J. 3

Stone v Stone [1958] 1 W.L.R. 1287. 12

Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A., AWG

Group v Argentine Republic, ICSID Case No. ARB/03/19

4

Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 28 Fair

Empl. Prac. Cas. (BNA) 1753, 29 Empl. Prac. Dec. (CCH) P 32782 (1982).

3

Tag v. Rogers (1959) 267 F.2d 664, 666 8Territorial Dispute (Libyan Arab Jamahiriya/Chad), [1994] I.C.J. Rep. 3

The Assunzione, [1954] P. 150, 164 (C.A.). 6

The Hollandia, [1983] 1 A.C. 565,576. 7

Totok v Torok [1973] 3 All ER 101, (1973) 1 WLR 1066. 13

Trilochan v. Dayanidhi, AIR 1961 Ori 158 5

U.S. v. American Sugar Refining Co., 202 U.S. 563, 26 S. Ct. 717, 50 L. Ed. 1149

(1906)

3

Udny v Udny [1869] L.R. 1 Sc. & Div 441,450 12

Valentine v. U.S. ex rel. Neidecker , 299 U.S. 5, 17, 57 S. Ct. 100 (1936) 3

Vellachi Achi v. Ramnathan, AIR 1973 Mad 141 13

Vincent v. Buchan (1889) 16 R. 637 12

Vishwanatha v. Abdul Wazid , AIR 1963 SC 1 5

Vita Food products Inc. v. Unus Shipping Co. Ltd. , [1939] 1 ALL ER 513 9

White v Tennant [1888] 31 W.Va. 790, 8 S.E. 596 12

Willar v Willar [1954] S.C.144. 12

Winans v Att. Gen. [1904] A.C.287 12

Young Loan Arbitration (Belg. v. FRG), [1980] 59 ILR 495 4

BOOKS, DIGESTS AND TREATISES

Bassiouni, “Reflections on International Extradition” in Festschrift Fur Otto Triffterer,

K.Schmoller, ed. (1996)

18

Cheshire, Fifoot and Furmston, Law of Contract , 11th

ed., (1986) 9

Cook, Logical and Legal Basis of Conflict of Laws, (1942) 7, 8

D. P. O‟Connell, International Law, 2d. ed. (London: 1970) vol. 1 1




VID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

D.W. Greig, Intertemporality and the Law of Treaties, (London: 2001) 4

David McClean, ed., Morris: The Conflict of Laws, 4t ed. (London: 1993) 12

de Winter (1969) III Hague Recueil 357, 419-454 14

Falconbridge, Selected Essays on the Conflict of Laws, 2d. ed. (1954) 7, 8

Geoffrey Freestone, “Cooperation Against Terrorism” , in Terrorism and International

Law, R. Higgins et. al. eds. (1997)

18

Ian Brownlie, Principles of Public International Law, 6t ed. (Oxford: Oxford

University Press, 2003)

3

Ivan Anthony Shearer, Extradition in International Law, (1971) 19

J. H. C. Morris and P. M. North, eds., Cases and Materials on Private International

Law, (London: Butterworths, 1984)

8

Joseph Story, Commentaries on the Conflict of Laws, 2d ed. (1841) 6Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11

ted. (London:

Stevens & Limited, 1987)

5, 6, 7

Lorenzen , Selected Articles on the Conflict of Laws, (1947) 7

M. S. Rajan, United Nations and Domestic Jurisdiction, 2d. ed, (London: 1961) 1

Malcolm N. Shaw, International Law, 6t

ed. (Cambridge: 2008) 1

Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public, 7th

ed. (2002) 1

P. Kooijmans, The Doctrine of the Legal Equality of States , (Leiden: 1964) 1

P.M. North and J.J. Fawcett eds. Cheshire and North’s Private International Law, 13th

ed. (LexisNexis Butterworths: New Delhi, 1999)

11, 12, 13

P.M. North, Private International Law of Matrimonial Causes in the British Isles and

the Republic of Ireland (1977)

13

R. Y. Jennings and A. D. Watts, eds., Oppenheim’s International Law 9th

ed. (London:

1992) vol. 1

1, 3, 11

Rabel, Conflict of Laws: A Comparative Study, 2d. ed. (1958-64) vol 2 7

Robert B. von Mehren & Michael E. Patterson, “Recognition and Enforcement of

Foreign Judgments in the United States” (1972)

5

Wolff, Private International Law, 2d. ed. (1950) 7

TREATIES AND OFFICIAL DOCUMENTS

Convention Relative to the Protection of Civilian Persons in Time of War , (Aug. 12,

1949) 75 U.N.T.S. 287

19

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition,

Enforcement and Co-operation in respect of Parental Responsibility and Measures for

the Protection of Children, [1996] O.J. L 48/3

14, 15, 16

EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of 14




VIID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Judgments in the Matrimonial Matters ( Brussels II), [1998] OJ C221/2

EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning

jurisdiction and the recognition and enforcement of judgments in matrimonial matters

and the matters of parental responsibility, [2003] O.J. L 338, p. 1.

14

European Convention on Extradition, Council of Europe, (Dec. 13, 1957) 359 U.N.T.S.

278

19

G.A. Res. 39/46, 39; U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51

(1985)

19

Hague Conference on Private International Law, Hague Convention on the Civil Aspects

of International Child Abduction, 25 October 1980, Hague XXVIII

15

Inter-American Convention on Extradition, (Feb. 25, 1981) 20 I.L.M. 724 19

Model Treaty on Extradition, (1990) art.4(a), G.A.Res. 45/116, U.N. GAOR, 45th Sess.,

U.N. Dec., A/RES/45/116

19

Organization of American States, Inter-American Convention on the International

Return of Children, 15 July 1989, OAS, Treaty Series, No. 70

16

Treaty Concerning Extradition (Belg.-Lux.-Neth.), (Jun. 27, 1962) 19

Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27

(1971), reprinted in 63 AM. J. INT'L L. 875, 876 (1969)

2, 3, 17, 19

ARTICLES AND JOURNALS

“Rebus Revisited: Changed Circumstances in Treaty Law” (2005) 43 Colum. J.

Transnat'l L. 459

4

“Developments in the Law: Medical Technology and the Law,” (1990) 103

Harv.L.Rev.1519, 1550

10

“Surrogate Gestator: A New and Honorable Profession” (1993), 76 Marquette L.Rev.

675

10

Antonio Cassese, “The International Community's „Legal‟ Response to Terrorism”

(1989) 38 Int'l & Comp. L. Q. 593.

19

Avi Katz, “Surrogate Motherhood and the Baby-Selling Laws” (1986) 20 COLUM.J.L.

& SOC. Probs. 1, 23.

6

Best Swart, “Refusal of Extradition” (1992) Netherlands Yearbook Int'l L. 23, 214 18

Dawn Wenk, “Belsito v. Clark: Ohio's Battle with „Motherhood‟” (1996) 28 U. Tol. L.

Rev. 247

10

Dolgin, “Just a Gene: Judicial Assumptions About Parenthood” (1993) 40 UCLA

L.Rev. 637, 659.

7

Ernest G. Lorenzen, “Huber's De Conflictu Legum”, (1918) 13 Ill. L. Rev. 375 6

Ernest G. Lorenzen, “Story's Commentaries on the Conflict of Laws – One Hundred 6




VIIID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Years Af ter” (1934) 48 Harv. L. Rev. 15

Gerald Fitzmaurice, “Reservations to Multilateral Treaties”, (1953) 2 ICLQ 1 3

Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice

(Cambridge: Grotius, 1986)

3

Goodwin, “Determination of Legal Parentage in Egg Donation, Embryo

Transplantation, and Gestational Surrogacy Arrangements” (1992) 26 Fam.L.Q. 275

10

Hersch Lauterpacht, “De l‟Interprétation des Traités: Rapport et Projet de Résolutions”,

(1950) 43 Annuaire de l‟Institut de Droit International

3

J. Brown, “Diplomatic Immunity: State Practice under the Vienna Convention on

Diplomatic Relations” (1988) 37 ICLQ

18

James B. Jacobs, “Major „Minor‟ Progress Under The Third Pillar: EU Institution

Building In The Sharing Of Criminal Record Information” (2008) 8 Chi.-Kent J. Int'l &

Comp. L. 111

20

Jenks, The Prospects of International Adjudication (1964) 15

Joel R. Paul, “Comity in International Law” (1991) 32 Harv. Int'l L.J. 1 20

Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. 3

Krimmel, “Can Surrogate Parenting Be Stopped? An Inspection of the Constitutional

and Pragmatic Aspects of Outlawing Surrogate Mother Arrangements” (1992) 27

Val.U.L.Rev. 1

9

Luke J. Umstetter , “Enforcing Foreign Judgments: In Search Of A Treaty To Locate

Assets Abroad” (2007) 3 S.C. J. Int'l. L. & Bus. 85

5

Macklin, “Artificial Means of Reproduction and Our Understanding of the Family,” 21

Hastings Center Rep. 5, 10.

10

Mary Becker, “Four Feminist Theoretical Approaches and the Double Bind of

Surrogacy” (1994) 69 Chi.-Kent. L. Rev. 303, 308.

10

N. Jansen Calamita, “Rethinking Comity: Towards A Coherent Treatment of

International Parallel Proceedings”, (2006) 27 U. Pa. J. Int'l Econ. L. 601

6, 17

Peter Pfund, “The Hague Conference Celebrates Its 100th Anniversary” (1993) 28 Tex.

Int'l L.J. 531

14

Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, 1924 9, 10

Richard D. Kearney and Robert E. Dalton, “The Treaty on Treaties” (1970) 64 Am. J.

Int‟l Law 495 at 516.

2

Sonia Bychkov Green, “Interstate Intercourse: How Modern Assisted Reproductive

Technologies Challenge the Traditional Realm of Conflicts of Law” (2009) 24 Wis. J.L.

Gender & Soc'y 25.

1

Stein, “Rendition of Terrorists: Extradition versus Deportation” (1989) Isr'l Yearbook 18




IXD. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Int'l L. 79, 282

Vieira, “L'Evolution Recente de l'Extradition dans le Continent Americain” (1984-II)

185 Rd.C. 236.

18, 19

William Hannay, “International Terrorism and the Political Offence Exception to

Extradition” (1979) 18 Colum. J. Transnat'l L. 383.

18

Willis Reese, “The Hague Conference on Private International Law: Some

Observations” (1985) 19 Int'l Law 881

14

Wise, “The Obligation to Extradite or Prosecute” (1993) 27 Isr. L. Rev. 282 18

MISCELLANEOUS

Adoption Act 1976 (U.K.), 1976, c. 36 14

Ariz. Rev. Stat. Ann. § 25-218(A) (West 1991) 9

Child Abduction and Custody Act 1985 (U.K.), 1985 c. 60 14Child Support Act 1991 (U.K.), 1991 c. 48 14

Civil Jurisdiction and Judgments Act 1982 (U.K.), 1982, c. 27. 2, 13

Committee on Foreign and Comparative Law, Association of the Bar of the City of New

York, Survey on Foreign Recognition of U.S. Money Judgments 5 (2001).

5

Contracts (Applicable Law) Act 1990 (U.K), 1990 c. 36 14

Council Framework Decision of 13 June 2002 on the European arrest warrant and the

surrender procedures between Member States (2002/584/JHA)

20

Council Framework Decision on Taking Account of Convictions in the Member States of

the European Union in the Course of New Criminal Proceedings (2 July 2007)

COM(2005/0018 (CNS)

20

D.C. Code Ann. § 16-402(a) (1997) 9

Domicile Act 1992, No. 3 of 1992, South Africa 12

Domicile and Habitual Residence Act , SM 1983, C.C.S.M. c. D96, Manitoba 13

Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45 14

Family Law Act 1986 (U.K.), 1986 c. 55 14

Ind. Code Ann. § § 31-20-1-1, 31-20-1-2 (Michie 1997) 9

Indian Contract Act, 1872 7

Interpol, General Secretariat, Rapport sur la valeur juridique des notices rouges, ICPO-

Interpol, General Assembly, 66th Session, New Delhi, 15-21 October 1997,

AGN/66/RAP/8, No. 8 Red Notices, as amended pursuant to resolution No.

AGN/66/RES/7

20

Maurice Mendelson, “The Subjective Elements in Customary International Law” (1995)

76 BYIL 179.

15

Mich. Stat. Ann. § 25.312(3) 10




XD. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

Mich. Comp. Laws Ann. § 722.855 (West 1993) 9

N.D. Cent. Code § 14-18-05 (1991) 9

N.Y. Dom. Rel. Law § 122 (McKinney Supp. 1997) 9

Neb. Rev. Stat. § 25-21,200 (1995) 9

Restatement Third, Foreign Relations Law of the United States § 325(1). 3

Rome Statute of the International Criminal Court , (1998) 37 I.L.M. 999 18

Secretary-General's Report on Aspects of Establishing An International Tribunal for the

Prosecutions of Persons Responsible for Serious Violations of International

Humanitarian Law Committed in the Territory of the Former Yugoslavia, (1993) 32

I.L.M. 1159

18

Security Counsel Resolution Establishing the International Tribunal for Rwanda, (1994)

33 I.L.M. 1598

18

The Indian Penal Code, 1860 11

Uniform Status of Children of Assisted Conception Act , Alternative B, § 5, 9B U.L.A.

208 (Master ed. Supp. 1997)

7

Utah Code Ann. § 76-7-204 (1995) 9

Wash. Rev. Code § § 26.26.230, 26.26.240 (1996) 9

Wills Act 1963 (U.K.),1963, c. 44 14



STATEMENT OF JURISDICTION MEMORIAL FOR THE RESPONDENT STATE

XID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

STATEMENT OF JURISDICTION

The Applicant, the Republic of Bolita, on one side, and the Respondent, the Republic of

Garundi on the other, have submitted by Special Agreement their differences, pursuant to

Article 40, paragraph 1, of the Statute of the International Court of Justice. Therefore, both

parties have accepted the jurisdiction of the ICJ pursuant to Article 36(1) of the Statute of the

Court.



STATEMENT OF FACTS MEMORIAL FOR THE RESPONDENT STATE

XIID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

STATEMENT OF FACTS

The Republic of Bolita and the Republic of Garundi: Bolita and Garundi formed an

economic union in 1978 with a common currency and monetary policy, respect and comity

for each other‟s laws, free commerce and trade, easy travel and recognition and enforcement

of orders of each other‟s courts. The economic union helped the two countries to develop

their economies, but created a unique set of challenges on the social and religious fronts.

International law is recognized by the Constitutions of both nations.

Citizenship Rules of Bolita and Garundi: Under Bolitian Laws, a child is a citizen of

Bolita if he is born in Bolita or he is born outside of Bolita but to Bolitian citizens. Children

born outside of Bolita to couples where only one parent is Bolitian are not entitled to

citizenship unless the Bolitian parent is resident in Bolita at the time of delivery. Garundian

Laws state that a child born in Garundi is a citizen of Garundi if its mother is a citizen of

Garundi. Children born outside of Garundi are citizens of Garundi if their parents are

Garundian citizens.

The Surrogacy Arrangement: Jane Rathna, a Garundian citizen decided to travel to Bolita

in 1992 and work there. While working there she married John Botisa in 1998 and in 2000

they had a daughter named Emily Rathna Botisa. Complications led Jane to undergo a

hysterectomy rendering her unfit to bear any more children. In 2003, John and Jane froze

their sperm and eggs, hoping to have future children by means of in vitro fertilization. In

2006, Janet Rathna (Jane‟s sister - a Garundian citizen) agreed to carry the baby to term.

Janet was to deliver the child in Bolita – for the child to clearly be a citizen of Bolita, but, in

her final trimester, Janet decided to fly back to Garundi due to family reasons. Soon after, she

developed complications, went into labour and delivered a baby boy – Robert, in Garundi.

Jane and Emily immediately travelled to Garundi to bring Robert back to Bolita.



STATEMENT OF FACTS MEMORIAL FOR THE RESPONDENT STATE

XIIID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

The Disagreement: The concept of was surrogacy was unknown in Garundi. Janet came

under tremendous local political and religious pressure not to hand over the child to Jane.

John flew into Garundi to take Emily back to Bolita but Jane insisted that Emily remain in

Garundi until the matter was resolved. John protested, but flew back without Emily.

Meanwhile, Janet changed her mind and decided not to hand over Robert to Jane. Janet then

filed with the Registrar of Births in Garundi as the mother of the child, naming the child

Robert Rathna and declaring the father to be unknown.

Legal Proceedings initiated in the Courts of Bolita and Garundi: Pursuant to John‟s suit

for specific performance Bolitian court pronounced an ex parte interim order declaring itself

to have jurisdiction as per the surrogacy contract and ordering Janet to appear before the

court within 30 days with Robert for the matter to be resolved. John also initiated legal

proceedings before the courts in Garundi for an order to compel Janet to appear before the

courts in Bolita. Janet filed objections between the courts in Garundi stating that as per

Garundian laws, the child was a citizen of Garundi, Janet was his mother and so neither she

nor Robert should be compelled to travel to Bolita. Janet also filed objections before the

courts in Bolita, stating they had no jurisdiction over a Robert- a Garundian child. John filed

a claim before the courts in Bolita requesting that Jane be compelled to hand over custody of

Emily to him. Jane objected to the jurisdiction of the Bolitian courts. She also argued that the

best interests of Emily required that she remain with her and Robert. Jane also filed for

custody of Emily with the Garundian courts.

Criminal Proceedings: John‟s lawyers in a tactical move initiated criminal proceedings

against Jane and Janet in the Bolitian courts. John accused Janet of stealing genetic material

and Jane of kidnapping a citizen of Bolita. The Bolitian courts issued arrest warrants to

ensure attendance and appearance of Jane and Janet. Bolitian authorities were considering

requesting Garundi to hand them over under the economic union treaty.



QUESTIONS PRESENTED MEMORIAL FOR THE RESPONDENT STATE

XIVD. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

QUESTIONS PRESENTED

1.

WHETHER THE RESPONDENT STATE’S COURTS HAVE JURISDICTION

AND WHETHER THE RESPONDENT STATE’S LAW IS THE APPLICABLE

LAW TO DETERMINE ROBERT’S CUSTODY ISSUE?

2. WHETHER THE RESPONDENT STATE’S COURTS HAVE JURISDICTION

AND WHETHER THE RESPONDENT STATE’S LAW IS THE APPLICABLE

LAW TO DETERMINE EMILY’S CUSTODY ISSUE?

3. WHETHER THE RESPONDENT STATE HAS AN INTERNATIONAL

OBLIGATION TO EXTRADITE JANE AND JANET?



SUMMARY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE

XVD. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

SUMMARY OF ARGUMENTS



ROBERT’S CUSTODY ISSUE

1.1 STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY THEIR LAWS TO

THEIR RESIDENTS

1.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO THE CUSTODY DISPUTES

1.3 IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE E U TREATY

1.3.1 THE E U TREATY DOES NOT PROVIDE FOR RECOGNITION AND ENFORCEMENT OF EACH

OTHER ‟S COURT ORDERS SANS JURISDICTION

1.3.2 RESPECT AND COMITY FOR EACH OTHER ‟S LAWS DOES NOT IMPLY COMPLETE ADOPTION

APPLICANT STATE‟S LAWS



EMILY’S CUSTODY ISSUE

2.1 THE RESPONDENT STATE BEING THE STATE OF EMILY’S NATIONALITY AND DOMICILE

HAS JURISDICTION FOR HER CUSTODY ISSUE

2.2 IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY RESIDENT IS

BEST SUITED TO DETERMINE MATTERS PERTINENT TO THE CHILD’S CUSTODY



SUMMARY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE

XVID. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

2.2.1 EMILY‟S HABITUAL RESIDENCE IS THE RESPONDENT STATE

2.2.2 THE APPLICANT STATE CANNOT CLAIM JURISDICTION ON THE BASIS OF “WRONGFUL

REMOVAL OR RETENTION”

2.2.3 ARGUEDO, EMILY HAS NOT BEEN “WRONGFULLY REMOVED OR RETAINED”

2.3 IT IS IN EMILY’S BEST INTERESTS THAT THE RESPONDENT STATE EXERCISE

JURISDICTION AND HER APPLICABLE LAW

2.4 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CUSTODY DISPUTES


EXTRADITE JANE AND JANET

3.1 THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE OF EXPRESS

TREATY TO THAT EFFECT

3.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL PROCEEDINGS



BODY OF ARGUMENTS MEMORIAL FOR THE RESPONDENT STATE

1D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE I NTERNATIONAL MOOT COURT COMPETITION 2011

BODY OF ARGUMENTS



ROBERT’S CUSTODY ISSUE

It is humbly submitted that the Respondent State‟s law will govern Robert‟s custody dispute

overriding any private choice of law arrangement.1 Robert was born in the Respondent State

and his mother is a citizen and resident of the Respondent State.2

Place of conception of child

carries little weight in choice of law determination. 3 Instead the local law of the state which

has the most significant relationship to the child and the parent is considered.4

1.1 STATES HAVE JURISDICTION WITHIN THEIR TERRITORY AND APPLY

THEIR LAWS TO THEIR RESIDENTS

The principle corollaries of sovereignty

5

and equality of states are jurisdiction, prima facie

exclusive, over its territory and the population living there and a right of non-intervention

against other states in the area of its exclusive jurisdiction. 6 The territorial principle provides

1 R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790 at 793; Sonia Bychkov Green, “Interstate Intercourse: How Modern

Assisted Reproductive Technologies Challenge the Traditional Realm of Conflicts of Law” (2009) 24 Wis. J.L.Gender & Soc'y 25.2 Compromis ¶ 5.3 In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 126, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied

519 U.S. 870, 117 S. Ct. 185, 136 L. Ed. 2d 123 (1996).4 Compromis ¶ 4, 5; In the Interest of K.M.H., (2007) 169 P.3d at 1032.5 Lotus case, (1927) PCIJ, Series A No. 10 at 18; 4 AD, p. 153; Island of Palmas case (US/Netherlands), (1928)

2 RIAA at 829, 838. 6

United Nations Charter, Art 2 (7); Declaration on Principles of International Law Concerning FriendlyRelations and cooperation Among States, UNGA, 1970, 65 AJ (1971), 243; D. P. O‟Connell, International Law,2d. ed. (London: 1970) vol. 1 at 322 – 4; P. Kooijmans, The Doctrine of the Legal Equality of States, (Leiden:

1964); R. Y. Jennings and A. D. Watts, eds., Oppenheim’s International Law 9th

ed. (London: 1992) vol. 1 at339; M. S. Rajan, United Nations and Domestic Jurisdiction, 2d. ed, (London: 1961) Nguyen Quoc Dinh, P.Daillier and A. Pellet, Droit International Public, 7

thed. (Paris: 2002) at 428.





jurisdiction based on concepts of allegiance or domicile.7 Mere presence within a state grants

jurisdiction to that state.8 A court has inherent jurisdiction derived from the principle of

parens patriae to make a custody order in respect of minors who are present within its

jurisdiction overriding even orders of courts of his domicile.9 Ordinary residence is another

criterion for jurisdiction.10

Habitual residence means a regular physical presence which must

endure for some time. It means something more than ordinary residence.11 If the court has

jurisdiction it will apply lex fori.12 In case of concurrent claims on behalf of persons having

dual nationality the claim of the State with genuine link prevails.13

In the instant case Robert has been resident in the Respondent State since his birth. He is not

only a citizen of the Respondent State but is also habitually resident and domiciled there. His

closest connection is with the Respondent State. It is the only environ he is acquainted with.

Consequently, it is humbly submitted that the Respondent State has jurisdiction over Robert‟s

custody dispute.

1.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE

It is humbly submitted that the Economic Union treaty is not applicable to the present child

custody issue. A treaty must be interpreted in good faith14, in accordance with the ordinary

7

Rainford, Boston and Graham v. Newell-Roberts, ILR 30, 106; Royal Exchange Assurance v. Compania Naviera Santi, SA ILR 33, 173; Colt Industries, Inc v. Sarlie, ILR 42 108; Malcolm N. Shaw, International

Law, 6th

ed. (Cambridge: Cambridge University Press, 2008) at 647.8 Re P (GE) (an infant), [1965] 3 ALL ER 977 (Court of Appeal); Heslop v. Heslop, (1958) 12 D.L.R. (2d) 591; Re Masterson, [1948] 2 D.L.R. 696; Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689; See also the

Civil Jurisdiction and Judgments Act 1982.9 Re Willoughby, (1885) 30 Ch.D. 324 (C.A.); Re D., [1943] Ch. 305; McKee v. McKee, [1951] A.C. 352 (P.C.);

J.v. C. [1970] A.C. 668; Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Re B.’s Settlement [1940] Ch. 54.10

Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Scheffer v. Scheffer , [1967] N.Z.L.R. 466, 468; Re Walker and Walker , (1970) 14 D.L.R. (3d) 342; Re L.L.A., (1981) 25 R.F.L. (2D) 208; Holden v. Holden, [1968] V.R. 334.11

Cruse v. Chittum {1974] 2 ALL ER 940 (Family Division).12

Re B.’s Settlement [1940] Ch. 54; McKee v. McKee, [1951] A.C. 352 (P.C.); J.v. C. [1970] A.C. 668.13 Barcelona Traction, Light & Power Co. (Belg. v. Spain), [1970] I.C.J. Rep. 3 at ¶ 98.14

Vienna Convention on the Law of Treaties (May 23, 1969) U.N. Doc. A./CONF. 39/27 (1971), reprinted in 63 AM. J. INT'L L. 875, 876 (1969) Art 26 [Vienna Conv.]; Richard D. Kearney and Robert E. Dalton, “TheTreaty on Treaties” (1970) 64 Am. J. Int‟l Law 495 at 516.





meaning to be given to the terms of the treaty in their context and in light of their object and

purpose.15 It should be implemented in keeping with its object and purpose,16 in accordance

with the intentions17 and expectations of the signatories.18 The term „the context‟ envisages

that a provision that requires interpretation be illuminated by recalling what type of a treaty

this is.19

The principle of effectiveness20

cannot be used to attribute to the provisions a

meaning which would be contrary to their letter and spirit. 21 The object and purpose is the

effective implementation of friendship in the specific fields provided for in the Treaty, not

friendship in a vague general sense.22 Again, where substantial rights are at stake, the court

will be wary to fill-in an omission.23

At times ambiguity may be hidden in the plainest and simplest of words even in their

ordinary and natural meaning.24 The inquiry in all such cases is as to what was intended in the

treaty by the contracting powers.25 The words must be construed ejusdem generis.26 General

15Vienna Conv. Art 31; Application of the Convention on the Prevention and Punishment of the Crime of

Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), [2007] I.C.J. Rep. ¶ 160 ff.; Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia), [2002] I.C.J. Rep. at 625, 645 – 6; Kasikili/Sedudu

Island (Botswana/Namibia), [1999] I.C.J. Rep. at 1045; Territorial Dispute (Libyan Arab Jamahiriya/Chad),[1994] I.C.J. Rep. at 6, 21 – 2; Maritime Delimitation and Territorial Questions between Qatar and Bahrain(Qatar v. Bahrain), [1995] I.C.J. Rep. at 6, 18; See also R. Y. Jennings and A. D. Watts, eds., Oppenheim’s

International Law 9th

ed. (London: 1992) vol. 1 at 1271.16 LaGrand (Germany v. United States of America), [2001] I.C.J. Rep. ¶ 102; Gerald Fitzmaurice, “Reservations

to Multilateral Treaties”, (1953) 2 ICLQ 1 at 7– 8, 13 – 14; Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice (Cambridge: Grotius, 1986) at 207 – 9; Restatement Third, Foreign Relations Law

of the United States § 325(1).17 Ambatielos (Greece v. United Kingdom), [1952] I.C.J. Rep. at 28; Hersch Lauterpacht, “De l‟Interprétation

des Traités: Rapport et Projet de Résolutions”, (1950) 43 Annuaire de l‟Institut de Droit International at 366. 18 Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S. Ct. 2374, 28 Fair Empl. Prac. Cas.(BNA) 1753, 29 Empl. Prac. Dec. (CCH) P 32782 (1982).19

Oil Platforms (Islamic Republic of Iran v. United States of America), (Separate Opinion of Judge Higgins)[2003] I.C.J. Rep. at 225, 237.20 Fisheries Jurisdiction (Spain v. Canada), [1999] I.C.J. Rep. at 432, 455.21

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, [1950] I.C.J. Rep. at 221, 226 – 30.22

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),[1986] I.C.J. Rep. at 137 ¶ 273.23

Valentine v. U.S. ex rel. Neidecker , 299 U.S. 5, 17, 57 S. Ct. 100 (1936) (extradition treaty with France didnot permit the President discretionary authority to surrender U.S. citizens).24

U.S. v. American Sugar Refining Co., 202 U.S. 563, 26 S. Ct. 717, 50 L. Ed. 1149 (1906); In re Zalewski's Estate, 292 N.Y. 332, 55 N.E.2d 184, 157 A.L.R. 87 (1944).25

Joseph T. Latronica, American Jurisprudence Treaties 2d. ed. 74 Am. Jur. § 24.





words near a specific list are not to be construed to their widest extent, but are to be held as

applying only to things of the same kind as those specifically listed. 27 It is humbly submitted

that read in its context the Treaty refers to disputes relating to purely economic matters.

1.2.1 S URROGACY CONTRACTS WERE NOT ENVISAGED BY EITHER OF THE PARTIES WHI LE

ENTERING INTO THE E U TREATY

A treaty should be interpreted by reference to the circumstances prevailing when the treaty

was concluded.28 The doctrine of rebus sic stantibus relieves states of obligations that are

unforeseeable results of a treaty.29

It must be recognized that even the clear provisions of a

treaty must not be given effect, or must receive appropriate interpretation, when, as a result of

modifications in international life, their application would lead to manifest injustice or to

results contrary to the aims of the institution.30

The concept of surrogacy is unknown in the Respondent State. Further, the E U treaty was

entered into in the year 1978 when the concept of surrogacy was was almost unknown

worldwide. The Respondent State and arguably the Applicant State entered into the E U

treaty without intent of its extending to surrogacy contracts.

1.3 IN THE ALTERNATIVE THE RESPONDENT STATE HAS NOT VIOLATED THE

E U TREATY

26 Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), [1963] I.C.J. Rep. 15 at 91; Ian

Brownlie, Principles of Public International Law, 6th

ed. (Oxford: Oxford University Press, 2003) at 604.27 Cooper Distributing Co., Inc. v. Amana Refrigeration, Inc., (3d Cir. 1995) 63 F.3d 262.28

Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guineaintervening), [2002] I.C.J. Rep. at 303, 346; Young Loan Arbitration (Belg. v. FRG), [1980] 59 ILR 495 at 544 – 5 Lithgow and Others v. the United Kingdom, European Court of Human Rights, Series A, No. 102, ¶ 117; D.W.Greig, Intertemporality and the Law of Treaties, (London: 2001).29 Suez, Sociedad General de Aguas de Barcelona S.A., Vivendi Universal S.A., AWG Group v Argentine

Republic, ICSID Case No. ARB/03/19; “Rebus Revisited: Changed Circumstances in Treaty Law” (2005) 43Colum. J. Transnat'l L. 459.30

Competence of the General Assembly for the Admission of a State to the United Nations, [1950] I.C.J. Rep. 4.





1.3.1 T HE E U TREATY DOES NOT PROVIDE FOR R ECOGNITI ON AND ENFORCEMENT OF EACH

OTHER ’ S COURT ORDERS SANS JURISDI CTION

A foreign judgment is recognized “when a court concludes that a certain matter has already

been” legitimately decided, whereas the judgment is enforced “when a party is accorded the

relief to which the judgment entitles him.”31

To be recognized and enforceable the right must have been created by the law of a law

district which had judicial jurisdiction in the international sense.32 It is essential that the

foreign court should have had jurisdiction, not in the sense of the foreign law, but in the sense

of the respondent state‟s rules of the conflict of laws.33 Generally, the domestic laws of a

recognizing country require proper notice, proper jurisdiction, final and binding judgment,

and no violation of public policy.34 Action will not lie upon an interlocutory order by a

foreign court.35 An ex parte decree passed by foreign Court is executable only if it is given on

merits of the case.36

It is humbly submitted that the Respondent State is willing to recognise and enforce orders of

the courts of the Applicant State provided these orders were not passed without jurisdiction.

31

Robert B. von Mehren & Michael E. Patterson, “Recognition and Enforcement of Foreign Judgments in theUnited States” (1972) at 16. 32

Deva Prasad Reddy v. Kamini Reddy, AIR 2002 KAR 356; Vishwanatha v. Abdul Wazid , AIR 1963 SC 1; Mohan Lal v. Prem Sukh, AIR 1956 Nag 273.33 Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11 th ed. (London: Stevens & Limited,

1987) at 421; see also Committee on Foreign and Comparative Law, Association of the Bar of the City of NewYork, Survey on Foreign Recognition of U.S. Money Judgments 5 (2001).34 Luke J. Umstetter , “Enforcing Foreign Judgments: In Search Of A Treaty To Locate Assets Abroad” (2007)

3 S.C. J. Int'l. L. & Bus. 85.35

Gauthier v. Routh (1843), 6 U.C.Q.B. (O.S.) 602 (C.A.); Sheehy v. Professional Life-Assurance Co. (1857),[FN2 C.B. (N.S.) 210]; affirmed [FN3 C.B. (N.S.) 597] (Ex. Ch.); see also Barned's Banking Co. v. Reynolds (1875), 36 U.C.Q.B. 256 (C.A.); Canada (Attorney General) v. Schulze (1901), [FN9 S.L.T. 4] (costs awarded by judgment in Canada on revenue case not recoverable in Scotland); Ruf v. Walter , [1990] 6 W.W.R. 661

(Sask. Q.B.) (costs enforceable if appearing in final judgment where all rights of parties determined).36 International Woollen Mills v. Standard Wool (U.K.) Ltd . (2001) 5 SCC 265, AIR 2001 SC 2134; Trilochan v.

Dayanidhi, AIR 1961 Ori 158; R.E. Mohd. Kassim and Co. v. Seeni Pakir-bin Ahmed AIR 1927 Md. 265.





1.3.2 R ESPECT AND COMITY FOR EACH OTHER ’ S LAWS DOES NOT IMPLY COMPLETE

ADOPTION APPLICANT S TATE ’ S LAWS

Comity is a discretionary act of accommodation by which a sovereign recognizes within its

territory the laws of a foreign sovereign, as long as that recognition does “not cause prejudice

to the power or rights of such government or of their subjects.”37

A sovereign does not

recognize foreign law within its territory because of any binding international obligation.38

Indeed, to have framed the concept would have been to restrict the sovereign's rights in a way

precisely in conflict with the premise of exclusive sovereign territorial power.39

It is humbly submitted that the E U Treaty governs only conflicts of law in respect of

economic matters. It does not imply that the Respondent State adopt all of the Applicant

State‟s laws and apply them even within her domestic sphere. Only when the Respondent

State finds the Applicant State‟s law to be the applicable law for a particular dispute, then the

E U treaty enables the Respondent State to apply such law to such dispute.

1.3.2.1 Refusal to enforce the surrogacy agreement does not amount to a violation of

the E U treaty

If both parties to an agreement had not intended that their agreement should be enforceable

by virtue of some legal system, it would not be a contract.40 Common intention is not inferred

easily.41 Law requires much more than a meeting of the minds when it comes to the

37 Hilton v. Guyot , (1895) 159 U.S. 113 at 202; Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007); Ernest

G. Lorenzen, “Huber's De Conflictu Legum”, (1918) 13 Ill. L. Rev. 375 at 401; N. Jansen Calamita,

“Rethinking Comity: Towards A Coherent Treatment of International Parallel Proceedings”, (2006) 27 U. Pa. J.Int'l Econ. L. 601 at 611.38

Ernest G. Lorenzen, “Story's Commentaries on the Conflict of Laws –One Hundred Years After” (1934) 48Harv. L. Rev. 15; Joel R. Paul, “Comity in International Law”, (1991) 32 Harv. Int'l L.J. 1. 39 Joseph Story, Commentaries on the Conflict of Laws, 2d ed. (1841) § 23.40

Comprimis ¶ 5; AIR 1959 SC 1362, (1960) 1 SCR 493; Decker (Lowd) v. Decker , (2001) Oh. 2279; Dicey, at1162.41

The Assunzione, [1954] P. 150, 164 (C.A.).





disposition of a child.42 Further, for an agreement to be a contract its object must be lawful. 43

Even if a surrogacy agreement constitutes a valid contract, based on legal, equitable and

moral principles, it is not enforceable, because a parent cannot bargain away his/her child. 44

Children are not property and their delivery cannot be ordered as a contract remedy on the

same terms that a court would, for example, order a breaching party to deliver a truckload of

nuts and bolts.45 Thus, an agreement in which a woman agrees to become a surrogate or to

relinquish her rights and duties as parent of a child thereafter conceived through assisted

conception is unconscionable46 and void.47

Furthermore, rigid application of lex loci contractus leads to incongruities.48 Intention of the

parties is only one of the factors to be taken into consideration.49 The choice of foreign

jurisdiction and law is not effective in the Respondent State if there was no consensus ad

idem i.e. agreement as to choice of law, as per Respondent State‟s laws.50

It is considered dangerous51 to rely too much on the argument of ut res magis valeat quam

pereat which presumes that parties to a contract did not intend to be governed by a law by

42 Decker (Lowd) v. Decker , (2001) Oh. 2279; Seymour v. Stotski (1992), 82 Ohio App. 3d 87, 93, 611 N.E.2d

454; A.Z. v. B.Z., (Mass. 2000) 725 N.E.2d 1051.43

Indian Contract Act, 1872 sec 10.44

Jhordan C. v. Mary K ., (1986) 179 Cal. App. 3d 386, 224 Cal. Rptr. 530 ; In re Interest of R.C ., (Colo. 1989)

775 P.2d 27; Ferguson v. McKiernan, (Pa. Super. 2004) 855 A.2d 121, 2004 Pa. Super. 289, P6-P8.45 Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 Id. at 797 (Kennard, J., dissenting); Dolgin, “Just a Gene:

Judicial Assumptions About Parenthood” (1993) 40 UCLA L.Rev. 637, 659. 46 J.F. v. D.B., (Pa. Ct. Comm. Pl. 2004) 66 Pa. D. & C. 4th 1, 10-32.47 R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790; Uniform Status of Children of Assisted Conception Act ,

Alternative B, § 5, 9B U.L.A. 208 (Master ed. Supp. 1997); In re Baby M , (N.J. 1988) 537 A.2d 1227; In re Marriage of Moschetta, 25 Cal. App. 4th 1218, 30 Cal. Rptr. 2d 893.48 Cook, Logical and Legal Basis of Conflict of Laws, (1942) Chap. 14 at 380-88; Falconbridge, Selected Essays

on the Conflict of Laws, 2d. ed. (1954) at 376-77; Wolff, Private International Law, 2d. ed. (1950) § 413;Lorenzen , Selected Articles on the Conflict of Laws, (1947) at 287-88; Rabel, Conflict of Laws: A ComparativeStudy, 2d. ed. (1958-64) vol 2 at 462.49

Case Concerning the Payment of Various Serbian Loans Issued in France , (1929) P.C.I.J., Ser. A, no. 20; Boissevain v. Wiel, [1949] 1 K.B. 482, 490 (C.A.); The Hollandia, [1983] 1 A.C. 565,576.50

Mackender v. Feldia A.G., [1967] 2 Q.B. 590,598 (C.A.).51Lawrence Collins, gen ed., Dicey and Morris on the Conflict of Laws, 11

thed. (London: Stevens & Limited,

1987) vol. 2 at 1186.





which their agreement would be invalid and has thus been rejected.52 Parties by choice of law

cannot give validity to an agreement that is illegal and void. 53 Whatever be the proper law, a

contract the performance of which is illegal according to lex loci solutionis will not be

enforced by its courts.54

The doctrine of forum non conveniens55 provides jurisdiction on considerations of

convenience, fairness, and judicial economy.56 In the instant case the the subject matter of the

contract was Garundian and the whole transaction contemplated by the contract concerned

activities of a Garundian national, Janet.57

Consequentially, the Respondent State has

jurisdiction over such transaction.

A. PUBLIC POLICY OF THE R ESPONDENT STATE IS APPLICABLE WITHIN ITS TERRITORIAL

SOVEREIGNTY

The correct interpretation of a treaty on private international law must take into account the

recognition of the principle of order public as applied locally.58

The contracting States

despite treaty obligations retain the right to enforce restrictions required by ordre public.59

It

must be understood as containing an implied reservation authorizing, on the ground of public

policy, to overrule the application of the foreign law even if it is recognized as the proper

52 Etler v. Kertesz , (1960) 26 D.L.R. (2D.) 209, 222; Lindsay v. Miller , [1949] V.L.R. 13, 15.

53Cook, Logical and Legal Basis of Conflict of Laws, (1942) at 427; Falconbridge, Selected Essays on the

Conflict of Laws, 2d. ed. (1954) at Chap. 16.54 Ralli Bros v. Compania Naviera Sota y Aznar, [1920] 2 K.B. 287 (C.A.).55

Gilbert v. Gulf Oil Co, 330 U.S. at 507; Canada Malting Co. v. Paterson Steamships, Ltd . (1932) 285 U.S.413, 422; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981); American Dredging Co. v. Miller , (1994) 510U.S. 443, 449 n. 2.56

La Société du Gaz de Paris v. Société Anonyme de Navigation “Les Armateurs Français”, [1925] 23 Lloyd'sList. Rep. 209, 213 (Sess.); Malaysia Int'l Shipping Corp. v. Sinochem Int'l Co. Ltd.,(3d Cir.2006) 436 F.3d 349.57 Coast Lines Ltd. v. Hudig & Veder Chartering NV , [1972] 2 QB 34, [1972] 1 ALL ER 451; J. H. C. Morris

and P. M. North, eds., Cases and Materials on Private International Law, (London: Butterworths, 1984) at 67.58

Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants(Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 91 (Separate Opinion Of Judge Sir Hersch Lauterpacht), 74-78(Separate Opinion of Judge Badawi), 102-09 (Separate Opinion of Judge Moreno Quintana).59 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants

(Netherlands v. Sweden), [1958] I.C.J. Rep. 55; see also Committee of United States Citizens Living in Nicaragua v. Reagan case (1988) 859 F.2d 929 at 939; Tag v. Rogers (1959) 267 F.2d 664, 666; US v. Yunis(No. 3) (1991) 724 F.2d 1086, 1091.





law.60 Moreover, national legislation is „on full parity‟ with a treaty, so that a later statute

would render an earlier treaty null to the extent of any conflict.61

The parties are at liberty to select the proper law of their contract, provided the choice is bona

fide and legal and provided there is no reason for avoiding the choice on the ground of public

policy.62 Courts have on considerations of public policy and morality refused to enforce a

contract. 63 It seems „absurd‟ to enforce a contract against public policy, simply because it

happens to have been made somewhere else. 64

The state has a compelling interest in forbidding surrogacy agreements

65

to (1) prevent

children from becoming commodities; (2) protect the best interests of the child, which are not

preserved by surrogacy agreements; and (3) prevent the exploitation of women.66

Overriding

even a choice of law clause surrogacy agreements have been held as contrary to public policy

and thus not enforceable.67 The conception of a child for relinquishment after birth poses

60 Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants

(Netherlands v. Sweden), [1958] I.C.J. Rep. 55 at 72 (Declaration of Judge Spiropoulos).61 Breard v. Greene, (1998) 140 L.Ed. 2d 529; People of Saipan ex rel. Guerrero v. United States Department of

Interior (1974) 502 F.2d 90; Association of Lawyers for Peace and Four Other Organizations v. State of the Netherlands, Nr C02/217HR; LJN: AN8071; NJ 2004/329.62 Vita Food products Inc. v. Unus Shipping Co. Ltd., [1939] AC 277, [1939] 1 ALL ER 513 (Privy Council);

Kay’s Leasing Corp. Pty. Ltd. v. Fletcher, (1964) 116 C.L.R. 124; Golden Acres Ltd. v. Queensland Estates Pty. Ltd., [1969] St. Robert. Qd.378.63

Case Concerning The Application Of The Convention Of 1902 Governing The Guardianship Of Infants(Netherlands v. Sweden), [1958] I.C.J. Rep. 55 (Separate Opinion Of Judge Sir Hersch Lauterpacht); Balfour v.

Balfour , (1919) 2 KB 571; Ratan Chand Hirachand v. Aksar Nawaz Jung, (1991) 3 SCC 67; Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35; The EEC Convention on the Law Applicable to

Contractual Obligations, Art. 16; Cheshire, Fifoot and Furmston, Law of Contract , 11th

ed., (1986) Chaps. 11and 12.64 Rousillon v. Rousillon, (1880) 14 Ch. D. 351, 369; Greenshields Inc. v. Johnston (1981) 119 D.L.R. (3rd) 714.65

A significant minority of States have legislation addressing surrogacy agreements. Some simply denyenforcement of all such agreements. See Ariz. Rev. Stat. Ann. § 25-218(A) (West 1991); D.C. Code Ann. § 16-402(a) (1997); Ind. Code Ann. § § 31-20-1-1, 31-20-1-2 (Michie 1997); Mich. Comp. Laws Ann. § 722.855

(West 1993); N.Y. Dom. Rel. Law § 122 (McKinney Supp. 1997), N.D. Cent. Code § 14-18-05 (1991); UtahCode Ann. § 76-7-204 (1995). Others expressly deny enforcement only if the surrogate is to be compensated.See Ky. Rev. Stat. Ann. § 199.590(4) (Michie 1995); La. Rev. Stat. Ann. § 9:2713 (West 1991); Neb. Rev. Stat.§ 25-21,200 (1995); Wash. Rev. Code § § 26.26.230, 26.26.240 (1996).66 Doe v. Attorney Gen., (Mich. Ct. App. 1992) 487 N.W.2d 484 at 486, 487.67

R.R. v. M.H ., 689 N.E.2d 790 (Mass. 1998); Matter of Baby M., (1988) 109 N.J. 396, 537 A.2d 1227; Brownv. Gadson, (Ga. Ct. App. 2007) 288 Ga. App. 323, 323-325, 654 S.E.2d 179; J.F. v. D.B., (Pa. Ct. Comm. Pl.2004) 66 Pa. D. & C. 4th 1, 10-32; Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, 1924; Capron





grave ethical problems.68 As a matter of public policy the state will not enforce or encourage

private agreements or contracts to give up parental rights.69

B.

BEST I NTERESTS OF CHILD

The guiding principle of child custody is the best interests of the child.70

No private

agreement concerning custody can be conclusive as the determining factor is the best

interests of the child.71 A contract cannot determine the best interests of a child.72 The welfare

of the minor is the paramount consideration to which all others must yield, including the

order of a foreign court of competent jurisdiction.73 Gestational surrogacy is

“dehumanizing”74

and “commodifies”75

women and children.76

This will reinforce oppressive

gender stereotypes and threaten the well-being of all children.77

It is humbly submitted that as Robert has lived continuously in the Respondent State it is in

his best interests that jurisdiction and applicable law be granted to the Respondent State.

& Radin, “Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood , in SurrogateMotherhood”, (1990) Gostin edit. 72 at 62, 63; Krimmel, “Can Surrogate Parenting Be Stopped? An Inspection

of the Constitutional and Pragmatic Aspects of Outlawing Surrogate Mother Arrangements” (1992) 27Val.U.L.Rev. 1, 4-5.68 Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 at 793; “Magisterium of the Catholic Church, Instruction on

Respect for Human Life in Its Origin and on the Dignity of Procreation: Replies to Certain Questions of theDay” 25 (Feb. 22, 1987), cited in Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, fn. 271. 69 Belsito v. Clark (1994), 67 Ohio Misc. 2d 54, 644 N.E.2d 760 citing; Ingram, “Surrogate Gestator: A New

and Honorable Profession” (1993), 76 Marquette L.Rev. 675; Seymour v. Stotski (1992), 82 Ohio App.3d 87,611 N.E.2d 454; Dawn Wenk, “Belsito v. Clark: Ohio's Battle with „Motherhood‟” (1996) 28 U. Tol. L. Rev.247.70

Mich. Comp. Laws § 722.23; Mich. Stat. Ann. § 25.312(3); Avi Katz, “Surrogate Motherhood and the Baby-

Selling Laws” (1986) 20 COLUM.J.L. & SOC. Probs. 1, 23. 71 R.R. v. M.H ., (Mass. 1998) 689 N.E.2d 790; Johnson v. Calvert , (Cal. 1993) 851 P.2d 776 Id. at 789, 799-800

(Kennard, J., dissenting).72 Baby M , (N.J. 1988)537 A.2d 1227, 1240 at 1246.73 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re

L (Minors), [1974] 1 ALL ER 913 (Court of Appeal).74

Capron & Radin, “Choosing Family Law Over Contract Law as a Paradigm for Surrogate Motherhood , inSurrogate Motherhood”, (1990) Gostin edit. 72 at 62. 75

Macklin, “Artificial Means of Reproduction and Our Understanding of the Family,” 21 Hastings Center Rep.5, 10.76

Radin, “Market-Inalienability” (1987) 100 Harv.L.Rev.1849, 1930-1932; Goodwin, “Determination of LegalParentage in Egg Donation, Embryo Transplantation, and Gestational Surrogacy Arrangements” (1992) 26Fam.L.Q. 275, at p. 283.77

“Developments in the Law: Medical Technology and the Law,” (1990) 103 Harv.L.Rev.1519, 1550; Mary Becker, “Four Feminist Theoretical Approaches and the Double Bind of Surrogacy” (1994) 69 Chi. -Kent. L.Rev. 303, 308.







EMILY’S CUSTODY ISSUE

It is humbly submitted that it is a general principle of International Law that either domicile

or habitual residence be used to determine jurisdiction and applicable law .78 In the instant

case Emily‟s domicile as well as habitual residence lies with the Respondent State.

Consequently the Applicant State has jurisdiction and her law is the applicable law.

2.1

THE RESPONDENT STATE BEING THE STATE OF EMILY‟S NATIONALITY

AND DOMICILE HAS JURISDICTION FOR HER CUSTODY ISSUE

The citizenship laws of the Respondent State provide that, children born outside of Garundi

to Garundian citizens are citizens of Garundi.79 Words should be interpreted in their ordinary

sense.80 Moreover, the plural number includes the singular number.81 Therefore, a child born

outside of Garundi [Emily] to a Garundian citizen [Jane] is a citizen of Garundi.

It is humbly submitted that Jane retained her domicile of origin in the Respondent State. 82 It

is more difficult to prove that a person has abandoned her domicile of origin than to prove

she has abandoned her domicile of choice.83 She continues to be domiciled there until she

78P.M. North and J.J. Fawcett eds. Cheshire and North’s Private International Law, 13

thed. (LexisNexis

Butterworths: New Delhi, 1999) at 134 & 162.79

Compromis ¶ 3.80 R. Y. Jennings and A. D. Watts, eds., Oppenheim’s International Law 9th ed. (London: 1992) vol. 1at 1271.81

The Indian Penal Code, 1860 s. 9; 1 U.S.C.§. 1.82Compromis ¶ 4.

83 Re James (1908) 98 L.T. 438; Ramsay v. Liverpool Royal Infirmary [1930] A.C. 588.





acquires a domicile of choice elsewhere.84 The burden of proving a change of domicile is a

very heavy one and rests on the claimant.85

In the alternative, Jane‟s decision

86

to continue to stay in Garundi with Emily shows her

intention87 to reside in Garundi indefinitely. A person abandons a domicile of choice in a

country by ceasing to reside there and by ceasing to intend to reside there permanently or

indefinitely.88 It is sufficient to prove merely the absence of an intention to continue to

reside.89 The domicile of origin revives on abandonment of domicile of choice. 90

Alternatively, Jane acquires a new domicile in Garundi. A new domicile is acquired when

there is not only an intention of establishing a permanent or indefinite residence in some

other country, but has also been carried out by actual residence there. 91 A person can acquire

a domicile in a country if he has the necessary intention, after residence for even part of a

day.92 It is sufficient if he lives in a hotel93 or in the house of a friend94 or even in a military

camp95

.

A child may acquire a domicile of choice by the act of one of his parents. 96 Domicile of a

child is at the place with which he is most closely connected.97

If the parents have different

84 Vincent v. Buchan (1889) 16 R. 637; Grant v. Grant , 1931 S.C. 238.

85 Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 310,319; Winans v Att. Gen. [1904] A.C.287; Ramsay v

Liverpool Royal infirmary [1930] A.C. 588; In the Estate of Fuld (no 3) [1968] P.675, 685.86 Compromis ¶ 9.87

Bell v Kennedy [1868] L.R. 1 Sc. & Div.307, 319.88 Udny v Udny [1869] L.R. 1 Sc. & Div 441,450; I.R.C. v Duchess of Portland [1982] Ch.314.89 Re Flynn (No. 1) [1968] 1 W.L.R.103, 113-115.90

Udny v. Udny [1869] L.R. 1 Sc. & Div 441; Tee v Tee [1974] 1 WLR 213 at 215-216; Wade [1983] 32 ICLQ1 at 12 et seq.91 David McClean, ed., Morris: The Conflict of Laws, 4th ed. (London: Sweet & Maxwell, 1993) at 18.92

White v Tennant [1888] 31 W.Va. 790, 8 S.E. 596; Miller v Teale [1954] 92 C.L.R. 406. (See the LawCommission's confirmation of the policy behind this rule: Law of Domicile, para 5.7).93

Levene v. I.R.C. [1928] A.C. 217; I.R.C. v Lysaght [1928] A.C.234; Matalon v Matalon [1952] at 233.94

Stone v Stone [1958] 1 W.L.R. 1287.95 Willar v Willar [1954] S.C.144.96

In re J.D.M.C ., 2007 SD 97 (S.D. 2007); P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13

thed. (LexisNexis Butterworths: New Delhi, 1999) at 154.

97 Domicile Act 1992, No. 3 of 1992, South Africa, s 2(1).





domiciles due to their separation or any other reason, a child‟s domici le will be that of the

parent with whom he resides.98 Thus, Emily is domiciled in the Respondent State.

Additionally, Courts have jurisdiction if either of the parties are citizens of that country or

permanent or temporary residents of that country.99 Moreover, mere presence within a state

grants jurisdiction to that state.100 A court has inherent jurisdiction derived from the principle

of parens patriae to make a custody order in respect of minors who are present within its

jurisdiction.101

2.2

IN THE ALTERNATIVE, THE STATE IN WHICH THE CHILD IS HABITUALLY

RESIDENT IS BEST SUITED TO DETERMINE MATTERS PERTINENT TO THE

CHILD‟S CUSTODY

A person's domicile depends to such an extent on proof of his intention, that only often it is

impossible to identify it with certainty without recourse to the courts.102 Nationality is

objectionable

103

as a criterion to determine the personal law.

104

It may point to a country with

which the person in question has lost all connection or has never been connected105

or the

person may be stateless or may simultaneously be a citizen of two or more countries.106 The

98 In re J.D.M.C ., 2007 SD 97 (S.D. 2007); Domicile and Habitual Residence Act , SM 1983, C.C.S.M. c. D96,

Manitoba, s 9(1)(a).99

Vellachi Achi v. Ramnathan, AIR 1973 Mad 141.100 Re P (GE) (an infant), [1965] 3 ALL ER 977 (Court of Appeal); Heslop v. Heslop, [1958] 12 D.L.R. (2d)

591; Re Masterson, [1948] 2 D.L.R. 696; Maharanee of Baroda v. Wildenstein [1972] 2 All ER 689; See alsothe Civil Jurisdiction and Judgments Act 1982 (U.K.), 1982, c. 27.101 Re Willoughby, [1885] 30 Ch.D. 324 (C.A.); Re D., [1943] Ch. 305; McKee v. McKee, [1951] A.C. 352

(P.C.); J.v. C. [1970] A.C. 668; Re P (GE), (an infant) [1965] Ch. 568 (C.A.); Re B.’s Settlement [1940] Ch. 54.102

P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) at 10-15; P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13th ed.

(LexisNexis Butterworths: New Delhi, 1999) at 161.103

P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13th

ed. (LexisNexisButterworths: New Delhi, 1999) at 161.104

P.M. North, Private International Law of Matrimonial Causes in the British Isles and the Republic of Ireland (1977) at 9-10; Law Com No 168 (1987), Scot law Com No 107 (1987) ¶¶ 3.10-3.11.105

P.M. North and J.J.Fawcett eds. Cheshire and North’s Private International Law, 13th

ed. (LexisNexisButterworths: New Delhi, 1999) at 160.106

Totok v Torok [1973] 3 All ER 101, (1973) 1 WLR 1066.





application of the concept of nationality in such circumstances will lead to eccentric

decisions.107

Habitual residence of the child as a determinant of jurisdiction and applicable law as referred

to in the Hague Conference‟s conventions has been influential in establishing customary

norms.108 Purely domestic legislation has also adopted habitual residence as a major

connecting factor in matrimonial jurisdiction.109

2.2.1 E MILY ’ S HABI TUAL RESIDENCE IS THE R ESPONDENT S TATE

Residence for an appreciable period of time sufficient for acclimatization, with a degree of

settled purpose from the child‟s perspective110 and a settled intention to reside on a long term

basis are needed for acquisition of a new habitual residence.111

Where a child‟s habitual

residence cannot be established, the courts may exercise jurisdiction on the basis of the

child‟s presence.112 There is no need to show a person intended to stay there permanently or

107 Re O' Keefe [1940] Ch 124, (1940) 1 All ER 216; Re Johnson [1903] 1 Ch 821.108

Peter Pfund, “The Hague Conference Celebrates Its 100th Anniversary” (1993) 28 Tex. Int'l L.J. 531; WillisReese, “The Hague Conference on Private International Law: Some Observations” (1985) 19 Int'l Law 881; Domicile and Matrimonial Proceedings Act 1973 (U.K), 1973 c.45, ss. 5,6; Family Law Act 1986 (U.K.), 1986

c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991 c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in the Matrimonial Matters ( Brussels II),[1998] OJ C221/2; Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of ThorpeLJ); de Winter (1969) III Hague Recueil 357, 419-454; Cavers (1972) 21 Am ULR 475.109

Wills Act 1963 (U.K.),1963, c. 44; Adoption Act 1976 (U.K.), 1976, c. 36; Child Abduction and Custody Act 1985 (U.K.), 1985 c. 60; Family Law Act 1986 (U.K.), 1986 c. 55; Contracts (Applicable Law) Act 1990 (U.K),

1990 c. 36; EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L 48/3 (also makes extensive use of habitual residence); Domicile and Matrimonial Proceedings Act 1973 (U.K),

1973 c.45, ss 5,6; Family Law Act 1986 (U.K.), 1986 c. 55, Parts I and III; Child Support Act 1991 (U.K.), 1991c. 48, s 44(1); EC, Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments inthe Matrimonial Matters ( Brussels II), [1998] OJ C221/2, (uses habitual residence as an alternative connecting

factor for jurisdiction), Nessa v Chief Adjudication Officer (1998) 2 All ER 728 at 737, CA (Comments of Thorpe LJ).110

Feder v. Evans-Feder , 63 F.3d 217 (3d Cir. 1995)111

Re J (A Minor) (Abduction: Custody Rights), (1990) 2 AC 562; distinguised in Re S (A Minor) (Custody;Habitual Residence) ( 1998) AC 750, HL112

EC, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and therecognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ,[2003] O.J. L 338, p. 1.





indefinitely.113 The settled intention can be for a limited period.114 The habitual residence of a

child is not fixed but may change according to the circumstances of the parent.115 A father

can, consent to the child‟s being with the mother and lead to change of habitual residence. 116

Moreover one parent may take no step to prevent the other parent from changing the child's

home, which over a period, may amount to acquiescence.117

If a child has been living with its

mother even in defiance of a court order to return the child it would take the same habitual

residence as the mother.118

2.2.2 T HE APPLICANT S TATE CANNOT CLAIM JURISDICTION ON THE BASIS OF “W RONGFUL

REMOVAL OR RETENTION ”

Hague conventions119 apply as between Contracting States only to wrongful removals or

retentions occurring after its entry into force in those states. 120 The Hague conventions do not

apply unless both states are signatories. 121 Moreover, proof of custom in international law122

requires state practice and opinio juris sevi necessitates.123

The burden of proof rests on the

113 Re B (Minors) (Abduction), (No.2) [1993] 1 FLR 993; M v M (Abduction: England and Scotland ), [1997] 2

FLR 263 at 274 (per Millet LJ)114

M v M (Abduction: England and Scotland), [1997] 2 FLR 263 CA; Moran v Moran, [1997], SLT 541.115

Re M (Minors) (Residence Order: Jurisdiction), [1993] 1 FLR 495 at 500, CA; Re A (Abduction: Habitual Residence), [1998] 1 FLR 497 at 503; Re G (A Minor) (Enforcement of Access Abroad), [1993] Fam 216, CA;

Re B (Minors) (Abduction), (No 2) [1993] 1 FLR 993.116 Re F (A Minor) (Child Abduction), [1992] 1 FLR, 548, CA.117

Re F (A minor) (Child Abduction), [1992] 1 FLR 548 at 556-557, CA; See also Robertson v Roberston, [1998] SLT 468; Sing v Singh [1998] SLT 1084.118 Re B (Abduction: Children's Objections), [1998] 1 FLR 667 at 671; Clive, [1997], Jur Rev 137 at 145.119

Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII; EC, Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and

Measures for the Protection of Children, [1996] O.J. L 48/3. 120

Hague Conference on Private International Law, Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Hague XXVIII, Art. 35.121

Moshen v. Moshen 715 F. Supp. 1063 (D. Wyo. 1989); Koons v. Koons 615 N.Y.S.2d 563 (Sup. Ct. 1994).122 Jenks, The Prospects of International Adjudication (1964) at 226.123

Statute of the ICJ (1945), Art. 38(1)(b), T.S. No. 993, 59 Stat. 1055; Continental Shelf Case (Libya v Malta),[1985] ICJ Rep 13; Maurice Mendelson, “The Subjective Elements in Customary International Law” (1995) 76BYIL 179.





claimant.124 It is humbly submitted that in the instant case neither can be established with

respect to „wrongful removal or retention.‟

2.2.3

ARGUEDO , EM I LY HAS NOT BEEN “W

RONGFULLY REMOVED OR RETAINED ”

The State wherefrom the child has been wrongfully retained cannot claim jurisdiction when

the other parent had consented to or subsequently acquiesced in the removal or retention.125

Consent must be inferred from John‟s acquiescence and inaction.126 One parent may take no

step to prevent the other parent from changing the child's home, which over a period, may

amount to acquiescence.127

Moreover, a specific demand for Emily‟s return was never

made.128 It is humbly submitted that Emily has not been wrongful removed or retained.

Consequentially, jurisdiction and applicable law to determine Emily‟s custody lies with the

state of her habitual, ordinary and mere residence, Respondent State.

2.3 IT IS IN EMILY‟S BEST INTERESTS THAT THE RESPONDENT STATE

EXERCISE JURISDICTION AND HER APPLICABLE LAW

The welfare of the minor is the paramount consideration to which all others must yield,

including the order of a foreign court of competent jurisdiction. 129 Notwithstanding the

conduct of the „kidnapper‟ courts can exercise jurisdiction if it is in the best interests of the

child.130 Best interests of children are that they remain where they are.131 It is humbly

124 The Lotus case, (1927) PCIJ Ser. A no. 10 at 18.

125The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, [1996] O.J. L

48/3; Organization of American States, Inter-American Convention on the International Return of Children, 15July 1989, OAS, Treaty Series, No. 70, Art. 4.126 Falls v. Downie, p 871 F. Supp. 100 (D. Mass. 1994) (A child was found to have settled with his mother‟s

consent indefinitely in the U.S)127

Re F (AMinor) (Child Abduction) [1992] 1 FLR 548 at 556-557, CA; See also Robertson v Roberston [1998]SLT 468; Sing v Singh [1998] SLT 1084.128

Compromis ¶ 6, 7, 8, 9.129 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re

L (Minors), [1974] 1 ALL ER 913 (Court of Appeal).130 McKee v. McKee, [1951] AC 352 (Privy Council); Re E (D) (an infact), [1967] Ch 761 (Court of Appeal); Re

TA (infants), (1972) 116 Sol JO 78.





submitted that being the State of both Jane‟s and Emily‟s habitual residence and presence, the

Respondent State would be the most convenient, fair, amenable and inexpensive forum.

2.4

THE ECONOMIC UNION TREATY IS NOT APPLICABLE

A treaty should be implemented in keeping with its object and purpose and cannot be

interpreted in violation of its text and purpose.132

Moreover, this matter does not fall within

the purview of “dispute”133 as defined under the Economic Union treaty. No “orders”

pertaining to the said custody dispute were passed by, either by the Applicant State or the

Respondent State. Therefore, contradictory decisions, in violation of the court orders of the

other state, never arose in the present case. Additionally, Comity is a discretionary act of

accommodation by which a sovereign recognizes within its territory the laws of a foreign

sovereign, as long as that recognition does “not cause prejudice to the power or rights of such

government or of their subjects.”134 The Respondent State is therefore not required to take

cognizance of the jurisdiction enforced by the Applicant State over Emily‟s custody dis pute

on grounds of international comity.135

131 Re C (Minors), [1978] 2 ALL ER 230 (Court of Appeal).

132Vienna Conv. Arts 31 and 32; See Above § 1.2.

133Compromis ¶ 1

134 Hilton v. Guyot , (1895) 159 U.S. 113 at 202; Brown v. Gadson, 654 S.E.2d 179 (Ga. Ct. App. 2007); Ernest

G. Lorenzen, “ Huber's De Conflictu Legum”, (1918) 13 Ill. L. Rev. 375 at 401; N. Jansen Calamita, “ Rethinking

Comity: Towards A Coherent Treatment of International Parallel Proceedings”, (2006) 27 U. Pa. J. Int'l Econ.L. 601 at 611.135

See Above § 1.3.1. and § 1.3.2.






EXTRADITE JANE AND JANET

3.1

THERE IS NO INTERNATIONAL OBLIGATION TO EXTRADITE IN ABSENCE

OF EXPRESS TREATY TO THAT EFFECT

In the absence of a treaty obligation there exists no duty to extradite alleged criminals under

international law.136 In such cases, extradition usually is effected by non-binding

consideration of reciprocity.137 States can only act on the territory of other States if there is

permission to this effect in international law.

138

Furthermore, the only crimes that might cause the obligation to extradite under customary

international law are international crimes,139 such as genocide, crimes against humanity, war

crimes and the crime of aggression.140 These crimes, if wide-spread and systematic, are of

concern to the international community as a whole.141 Jane and Janet have not committed any

such international crime. Consequently, the Respondent State is under no obligation to

extradite them.

136 Questions of Interpretation and Application of 1971 Montreal Convention Arising from Aerial Incident at

Lockerbie (Lib. v. U.K.), [1992] I.C.J. Rep. 3, 24 ; A. Watts & R. Jennings, eds., Oppenheim's International Law (1992) at 950; Wise, “The Obligation to Extradite or Prosecute” (1993) 27 Isr. L. Rev. 282; Best Swart,

“Refusal of Extradition” (1992) Netherlands Yearbook Int'l L. 23, 214; Stein, “Rendition of Terrorists:Extradition versus Deportation” (1989) Isr'l Yearbook Int'l L. 79, 282. 137

Bassiouni, “Reflections on International Extradition” in Festschrift Fur Otto Triffterer, K.Schmoller, ed.(1996) at 727; William Hannay, “International Terrorism and the Political Offence Exception to Extradition”(1979) 18 Colum. J. Transnat'l L. 383.138

J. Brown, “Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic Relations”(1988) 37 ICLQ ¶ 49; Case Concerning The Arrest Warrant Of 11 April 2000 (Democratic Republic Of TheCongo v. Belgium) [2002] I.C.J. Rep. 3 at 181.139

Bassiouni, “Reflections on International Extradition” in Festschrift Fur Otto Triffterer, K.Schmoller, ed.(1996) at 729.140

Rome Statute of the International Criminal Court , (1998) 37 I.L.M. 999, arts. 5, 6, 7, 8; Secretary-General's Report on Aspects of Establishing An International Tribunal for the Prosecutions of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia,

(1993) 32 I.L.M. 1159, arts. 4, 5; Security Counsel Resolution Establishing the International Tribunal for Rwanda, (1994) 33 I.L.M. 1598, arts. 2, 3.141

Rome Statute of the International Criminal Court , (1998) 37 I.L.M. 999 at prmbl.





Additionally, under customary international law, States do not have to extradite their own

nationals.142 This is evidenced by the fact that many States have provided not to extradite

their own citizens in their constitutions and national legislations143 and by inclusion of a

clause allowing to deny extradition of nationals in international legal instruments.144

Finally, according to the principle aut dedere aut judicare, a State not extraditing an accused

person has to “submit the case to its competent authorities for the purpose of prosecution.”145

It is humbly submitted that since nothing in the Compromis points to the Respondent State‟s

unwillingness to investigate or to prosecute, the Respondent State has the option to prosecute

and is under no obligation to extradite.

3.2 THE ECONOMIC UNION TREATY IS NOT APPLICABLE TO CRIMINAL

PROCEEDINGS

It is humbly submitted that the Economic Union treaty is applicable to only economic matters

and does not extend to criminal proceedings. Interpretation of a treaty cannot lead to

conclusions at odds with its object and purpose.146

It would be inconsistent not only with the

wording of the Treaty, but also with its object, its purpose, its context, and the will of the

142 Geoffrey Freestone, “Cooperation Against Terrorism” , in Terrorism and International Law, R. Higgins et. al.

eds. (1997) at 46; Vieira, “L'Evolution Recente de l'Extradition dans le Continent Americain” (1984 -II) 185Rd.C. 236.143 Ivan Anthony Shearer, Extradition in International Law, (1971) at 102; Vieira, “L'Evolution Recente de

l'Extradition dans le Continent Americain” (1984-II) 185 Rd.C. 236, 238; A. Watts & R. Jennings, eds.,Oppenheim's International Law (1992) at 955.144 European Convention on Extradition, Council of Europe, (Dec. 13, 1957) 359 U.N.T.S. 278 at art.6/1(a);

Treaty Concerning Extradition (Belg.-Lux.-Neth.), (Jun. 27, 1962) available at http://www.consilium.eu.int/ejn/;Treaty on Extradition (U.S.-Mex.), (Dec 11, 1861) available at http://www.yale.edu/lawweb/avalon/avalon.htm; Model Treaty on Extradition, (1990) art.4(a), G.A.Res. 45/116, U.N. GAOR, 45th Sess., U.N. Dec.,A/RES/45/116; Inter-American Convention on Extradition, (Feb. 25, 1981) 20 I.L.M. 724, art. 7.145 G.A. Res. 39/46, 39; U.N. GAOR, 39th Sess., Supp. No. 51 at 197, U.N. Doc. A/39/51 (1985); Convention

Relative to the Protection of Civilian Persons in Time of War , (Aug. 12, 1949) 75 U.N.T.S. 287; AntonioCassese, “The International Community's „Legal‟ Response to Terrorism” (1989) 38 Int'l & Comp. L. Q. 593. 146

Vienna Conv. Art. 31, 32; See Above § 1.2.





parties.147 Likewise, the provision of recognition and enforcement of orders of each other‟s

courts cannot be read to include enforcement of arrest warrants. 148 There is always a need for

a validation by the authorities of the State where the person mentioned in the warrant is

found.149 Arrest warrants issued by courts of a country do not receive automatic

implementation in third states.150

Member states of the European Union are not required to

take into account a conviction from another member state if: a national conviction would

have been possible for the same conduct or the sanction is unknown to the national legal

system.151 Neither can comity or respect for each other laws be extended to impose a binding

legal obligation on the Respondent State to adhere to all the laws of the Applicant State. 152

Comity is restricted by international duty and convenience, and the rights of citizens or of

other persons who are under the protection of the State‟s laws.153

It is humbly submitted that treaty obligations are reciprocal and if such interpretation is

allowed then the Applicant State is under a legal obligation to adhere to all the domestic laws

of the Respondent State. Consequentially, the Applicant State is bound by the Respondent

State‟s laws that do not provide for such extradition.

147 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), [2008] I.C.J. Rep. at ¶ 101;

Oil Platforms (Islamic Republic of Iran v. United States of America), [1996] I.C.J. Rep. at 814¶ 28; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep. at137 ¶ 273.148

See Above § 1.3.1.149 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic Of The Congo v. Belgium)

[2002] I.C.J. Rep. 3 at 181.150 Interpol, General Secretariat, Rapport sur la valeur juridique des notices rouges, ICPO-Interpol, GeneralAssembly, 66th Session, New Delhi, 15-21 October 1997, AGN/66/RAP/8, No. 8 Red Notices, as amended

pursuant to resolution No. AGN/66/RES/7; Case Concerning the Arrest Warrant Of 11 April 2000 (Democratic Republic of the Congo v. Belgium) [2002] I.C.J. Rep. 3 at 182 (Dissenting opinion of Judge Van DenWyngaert).151

Council Framework Decision on Taking Account of Convictions in the Member States of the EuropeanUnion in the Course of New Criminal Proceedings (2 July 2007) COM(2005/0018 (CNS); Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) Art. 4; James B. Jacobs, “Major „Minor‟ Progress Under The Third Pillar: EU InstitutionBuilding In The Sharing Of Criminal Record Information” (2008) 8 Chi.-Kent J. Int'l & Comp. L. 111.152

See Above § 1.3.2.153 Hilton v. Guyot , (1895) 159 U.S. 113, 164; Joel R. Paul, “Comity in International Law” (1991) 32 Harv. Int'l

L.J. 1 at 8-9 (noting that Hilton “is the most commonly cited statement of comity”).



PRAYERS MEMORIAL FOR THE RESPONDENT STATE

PRAYERS

In light of the questions presented, arguments advanced and authorities cited the agent for the

Respondent State most humbly and respectfully prays before this Hon‟ble Court, that it may

be pleased to adjudge and declare:

I. The Respondent State‟s courts have jurisdiction and the Respondent State‟s law is the

applicable law to determine R obert‟s custody issue

II. The Respondent State‟s courts have jurisdiction and the Respondent State‟s law is the

applicable law to determine Emily‟s custody issue

III. The Respondent State is not under any international obligation to extradite Jane and

Janet

The Respondent State additionally prays that the Court may grant any provisional relief that it

may deem fit. The Court may also make any such order as it may deem fit in terms of equity,

justice and due conscience.

And for this act of kindness the Respondent State shall as duty bound ever humbly pray.

Respectfully submitted,

..….……...…………………………

(Agents for the Respondent State)

Documents

Respondent Memorial 2011