ArmisVSrecho Applicant (1)

7/28/2019 ArmisVSrecho Applicant (1)

1/25


2/25

Table of Contents

PUBLIC INTERNATIONAL LAW..................................................................1

TABLE OF CONTENTS..............................................................................2

INDEX OF AUTHORITIES..........................................................................3

TREATIES, CONVENTIONS, AND UN DOCUMENTS...............................................................3

JUDICIALAND ARBITRAL DECISIONS.................................................................................3

ESSAYS, ARTICLES, JOURNALS, AND MISCELLANEOUS..........................................................3

STATEMENT OF JURISDICTION.................................................................4

QUESTIONS PRESENTED..........................................................................7

STATEMENT OF FACTS............................................................................8

PLEADINGS...........................................................................................13

2


3/25

INDEX OF AUTHORITIES

Treaties, Conventions, and UN Documents

International Covenant on Civil and Political Rights

Convention on the Elimination of All Forms Discrimination against Women the Convention on the Rights of the Child

Vienna Convention on Law of Treaties.

ILO Convention 87 on the Freedom of Association and Protecton of the Right to

organize Convention

ILO 158 Termination of Employment Convention, 1982, Database of Labour

Legislation

International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families

Universal Declaration of Human Rights

Workers with Family Responsibilites Convention Articles on Responsibility of States for Internationally Wrongful Acts

Termination of Employment Convention

International Covenant on Economic, Social, and Cultural Rights

Judicial and Arbitral Decisions

Lotus (France v Turkey) (Merits) (PCIJ Rep Series A No 10),

North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark;

Federal Republic of Germany/Netherlands) (Merits) ([1969] ICJ Rep 3)

(Nicaragua v United States of America) (Merits) ([1986] ICJ Rep 14)

Essays, Articles, Journals, and Miscellaneous

USLegal, Ratione Personae Law & Legal Definition

Max Planck Encyclopedia of Public International Law

3


4/25

STATEMENT OF JURISDICTION

The State of Armis and the State of Recho submit the following dispute to the

International Court of Justice (ICJ). Pursuant to Article 38 (a) and (b) of the Statute of

the International Court of Justice, States may bring cases before ICJ, whose function is

to decide in accordance with international law such disputes as are submitted to it, shall

apply: a. international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states; and b. international custom, as evidence

of a general practice accepted as law.1 In addition, paragraph 2 of Article 53 of the

Statute of the International Court of Justice provides that the Court must, before doing

so, satisfy itself, not only that it has jurisdiction in accordance with Articles 36 and 37,

but also that the claim is well founded in fact and law. 2

The State of Armis and the State of Recho are the involved states in the dispute

concerning the evacuation of a foreigner during an outbreak of a malignant influenza.

The preceding statement is supported in conformity with paragraph 1 Article of the

Statute of ICJ which provides that, Only states may be parties in cases before the

Court.3 The jurisdiction of the Court comprises all cases which the parties refer to it and

all matters especially provided for in the Charter of the United Nations (Armis and

Recho are members of the United Nations, Compromis, paragraph 1 C.1) or in treaties

and conventions in force.4 There are treaties and conventions involved in the case

which are: a. the International Covenant on Civil and Political Rights (ICCPR), b. the

Convention on the Elimination of All Forms Discrimination against Women (CEDAW), c.

1International Court of Justice, Statute of the Court, Articles 38(a) and 38(b),2 International Court of Justice, Statute of the Court 1945, available at: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_III, last accessed on 17 March 2013.3 International Court of Justice, Statute of the Court, Article 34,4 International Court of Justice, Statute of the Court, Article 36,

4
http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_IIIhttp://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_IIIhttp://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_IIIhttp://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0#CHAPTER_III


5/25

the Convention on the Rights of the Child (CRC), and d. the Vienna Convention on Law

of Treaties (C.1).

Aside from the requisites mentioned above, there are another requirements to

adjudicate case in the ICJ. These are jurisdiction ratione personae and jurisdiction

ratione materiae. Ratione personae literally means by reason of his person or by reason

of the person concerned. In some international cases, a courts jurisdiction depends

upon whether a defendant is residing within the territory of the court or whether a

defendant is a citizen of the state to which the court belongs. In such cases, jurisdiction

of a court is decided by reason of the defendant or ratione personae. In international

law, ratione personae expresses the rule of law that only a state that is a party to an

international treaty can take part in international dispute resolution process. 5 Ratione

materiae on the other hand, otherwise known as subject-matter jurisdiction refers to the

court's authority to decide a particular case. It is the jurisdiction over the nature of the

case and the type of relief sought; the extent to which a court can rule on the conduct of

persons or the status of things. The reasoning behind subject-matter jurisdiction is that

the court with the greatest interest in deciding the dispute should be the court that has

the opportunity to make a ruling on it.6 Both jurisdiction ratione personae and jurisdiction

ratione materiae are present in the case. State of Armis and State of Recho are

sovereign states (ratione personae), the former advocating the claims in its exercise of

diplomatic protection against the latter (C.9). And the two states agreed to refer the

dispute to the ICJ, hence, jurisdiction ratione materiae is being complied with (C.11).

5 USLegal, Ratione Personae Law & Legal Definition, available at: http://definitions.uslegal.com/r/ratione-

personae/,last accessedon 17 March 2013.6 USLegal, Jurisdiction Ratione Materiae Law & Legal Definition, available at:

http://definitions.uslegal.com/j/jurisdiction-ratione-materiae/, last accessedon 17 March 2013.

5
http://definitions.uslegal.com/r/ratione-personae/http://definitions.uslegal.com/r/ratione-personae/http://definitions.uslegal.com/j/jurisdiction-ratione-materiae/http://definitions.uslegal.com/r/ratione-personae/http://definitions.uslegal.com/r/ratione-personae/http://definitions.uslegal.com/j/jurisdiction-ratione-materiae/


6/25

Furthermore, the parties have agreed to the contents of the Compromis, subject

to the Corrections and Clarifications. In accordance with Article 36(1) 7 of the Statute of

the International Court of Justice, the jurisdiction of the Court comprises all cases which

the parties refer to it and all matters specially provided for in the Charter of the United

Nations or in treaties and conventions in force. Thus, each party will accept the

judgment of this Court as final and binding and shall execute it in its entirety and in good

faith.

With all the foregoing, the International Court of Justice is competent enough to

exercise jurisdiction over the dispute.

Exhaustion of Available Local Remedies

Ms. Shunzette exhausted all legal remedies available to her in Recho by

instituting a suit, which she eventually lost against the Goverment of Recho (C.9). The

rule on exhaustion of local remedies was fully complied with.

7 International Court of Justice, Statute of the Court, Article 36 (1)

6


7/25

QUESTIONS PRESENTED

I. Whether the Government of Recho breached the treaties to which Armis and

Recho are parties.

II. Whether the Government of Recho breached international customary law.

7


8/25

STATEMENT OF FACTS

1. Countries Armis and Recho are members of the United Nations. They are

parties to the International Covenant on Civil and Political Rights, the Convention

on the Elimination of All Forms Discrimination against Women, the Convention

on the Rights of the Child, and the Vienna Convention on Law of Treaties.

2. Armis does not border Recho and Megoose, but Recho borders Megoose. In

March 2010, a malignant influenza was going around Megoose, but there were

not enough vaccines for the entire population. The Government of Megoose

issued an instruction to inhabitants living within a 30-kilometer radius from the

area where the spread of influenza was most serious to not move, in principle, in

and out of the area.

3. The Government of Armis instructed all nationals of Armis living in Recho as

well as in Megoose to evacuate each country at once by the use of chartered

flights arranged by the Government. About 30 percent of the nationals of Armis

living in Recho left to return to Armis. 8

4. In April 2010, the Government of Megoose revoked the restriction placed on

movement, recognizing that the influenza epidemic was waning.

8 Recho borders Megoose at 50 kilometer distance from the area where the spread of influenza was themost serious.

8


9/25

5. In June 2010, the Government of Armis lifted the order not to visit Recho, after

assessing that the epidemic of influenza in Megoose had almost waned.

6. Ms. Shunzette, a national of Armis, had worked as a researcher in the National

Research Institute of Recho (situated at a distance of 60 kilometer from the area

where the spread of influenza was the most serious) since March 2009, under a

three-year employment contract. She was accompanied by her 5 year old

daughter. After the influenza outbreak, she returned home on board the

chartered flight, following the instruction of the Government of Armis. 9

7. Following the lifting of the order not to visit Recho, Ms. Shunzette went back to

Recho to resume her work at the Institute, but found that she had been

dismissed as a punishment 10 and that her contract on a rental lodge in the

campus had been cancelled.

8. Ms. Shunzette had no choice but to leave Recho for Armis, and brought a suit

against the Government of Recho in the competent district court of Recho which

9 The researchers from Armis, except Ms. Shunzette, all of whom were men, lived in Recho apart fromtheir family. They continued their work in the Institute, in spite of the instruction of the Government ofRecho.

10 According to the employment contract, an employee dismissed for punishment gets no dismissalpayment, and is disqualified for reemployment.

9


10/25

had jurisdiction over the matter, demanding the revocation of her dismissal.11 The

court supported the Government of Rechos contention that she was justly

punished for absence from work without the permission required under the

employment contract. Ms. Shunzette lost the suit.12

9. Ms. Shunzette asked the Government of Armis to exercise its right of

diplomatic protection against the Government of Recho. The Government of

Armis accepted her request and sought the revocation of her dismissal from the

National Institute, which was rebuffed immediately.

10. The two countries engaged in further negotiations. In the course of the

negotiations, Armis held that Recho violated international law by punishing a

national of Armis, Ms. Shunzette, for the reason as follows: (1) Ms. Shunzette

suffered a disadvantage (a dismissal as punishment) as the result of departing

from Recho. (2) It was a violation of the principle of freedom to leave any country.

(3) Her right to work under safe conditions, which all women shall enjoy, was

injured by being dismissed for disobeying the employment contract, or for leaving

Recho at the peak of the malignant influenza outbreak. (4) If Ms. Shunzette

remained in Recho, the right of her five year old daughter to enjoy the highest

11 National Research Institute of Recho is financed out of the budget of the Government, and employeematters are under the control of the Government.

12 In the district court, Ms. Shunzette invoked domestic laws and regulations relating to human rights aswell as the conventions on human rights themselves, but the court did not fully discuss her legalarguments

10


11/25

standard of protection against epidemics, which all children have, would be

injured. Recho refuted as follows: The engagement contract consented to by Ms.

Shunzette was based on laws and regulations enacted to be consonant with the

treaties to which Recho is a party. As a matter of fact, Recho neither prevented

any departure, nor discriminated against anyone, including Ms. Shunzette and

her daughter.

11. The negotiation reached an impasse. Eventually, the two countries agreed to

refer the dispute to the International Court of Justice (ICJ).

12. The applicant, Armis, requested that ICJ adjudge and declare as follows: The

Government of Recho breached the treaties to which Armis and Recho are

parties as well as international customary law in relation to the spread of the

malignant influenza in Megoose in March 2010.

13. The defendant, Recho, requested that the ICJ adjudge and declare as

follows: The Government of Recho breached no treaties to which Armis and

Recho are parties or any international customary law in relation to the spread of

the malignant influenza in Megoose in March 2010.

11


12/25

SUMMARY OF PLEADINGS

I. Recho breached the treaties to which Armis and Recho are parties

because:

a. It violated the principle of the right of liberty of movement for everyone

who is lawfully within a State partys territory;

b. All women enjoy the right to work and under safe conditions. Recho

breached Ms. Shunzettes right to work; and

c. It violated the right of all children to enjoy the highest standard of

protection against epidemics.

II. Recho breached international customary law because:

a. It violated employees right to work under safe conditions;

b. It terminated Ms. Shunzettes employment without valid cause and due

process;

c. It violated the human right to impartial trial; and

d. Ms. Shunzette suffered damages as a result.

12


13/25

PLEADINGS

I. RECHO BREACHED THE TREATIES TO WHICH ARMIS AND RECHO ARE

PARTIES.

A. Recho violated the principle of the right of liberty of movement for

everyone who is lawfully within a State partys territory.

Everyone shall be free to leave any country, including his own. Such right

shall not be subject to any restrictions except those which are provided by law,

are necessary to protect national security, public order (ordre public), public

health or morals or the rights and freedoms of others, and are consistent with the

other rights recognized in the present International Covenant on Civil and

Political Rights (ICCPR).13

The dismissal from work of a national of Armis, Ms. Shunzette, defeated the

principle of freedom to leave any country. It was her right to leave Recho for her

own justifiable reason. Hence, Recho should not have punished her because of

the exercise of such right. It is innate for any one to wish to flee in light of

unfortunate events. Especially if this hampers employment and health issues.

Every person has the right to look out for his/her own best interest. This is not a

punishable act since everyone is entitled to such.

13ICCPR, Art. 12 (3)

13


14/25

B. All women enjoy the right to work and under safe conditions. Recho

breached Ms. Shunzettes right to work.

Every state has specific legal obligations to respect and protect every

persons right to work. States Parties shall take all appropriate measures to

eliminate discrimination against women in the field of employment in order to

ensure, on a basis of equality of men and women, the same rights, in particular:

The right to work as an inalienable right of all human beings 14 and the right to

protection of health and to safety in working conditions, including the

safeguarding of the function of reproduction.15 Furthermore, Recho breached

what the Article 5(d) of the Termination of Employment Convention of the

International Labour Organization stated, that race, colour, sex, marital status,

family responsibilities, pregnancy, religion, political opinion, national extraction, or

social origin do not constitute as valid reasons for termination.16

The right to work under safe conditions, which all women shall enjoy, was

injured by dismissing Ms. Shunzette for disobeying the employment contract, or

for leaving Recho at the peak of the malignant influenza outbreak (C.7).In this

case, she was punished for exercising her duty as parent in protecting not only

herself, but her child, which is well within the sphere of familial responsibility. This

cannot be made the basis of any lawful termination as stated in the

aforementioned law. In the compromis, it was stated that researchers from Armis

who were all men continued their work despite Armis instructions. They lived in

14Convention on the Elimination of all forms Discrimination Against Women (CEDAW), Article 11 (1a)15CEDAW, Article 11, (1f)16 Termination of Employment Convention, 1982, Article 5(d)

14


15/25

Recho apart from their family and this fact separates from the heavier

responsibility which Ms. Shunzette has and that is to protect her daughter who

lives with her in Recho. As a result, her work permit was lost as well as her

residence in Recho. With this, Recho failed to respect Ms. Shunzettes right to

work. It is inherent for a woman to want to be subject to a safe working

environment. It must be ascertained as such and maintained as so.

C. All children enjoy the highest standard of protection against

epidemics

In all actions concerning children, whether undertaken by public or private

social welfare institutions, courts of law, administrative authorities or legislative

bodies, the best interests of the child shall be a primary consideration.17 States

Parties undertake to ensure the child such protection and care as is necessary

for his or her well-being, taking into account the rights and duties of his or her

parents, legal guardians, or other individuals legally responsible for him or her,

and, to this end, shall take all appropriate legislative and administrative

measures.18

If Ms. Shunzette remained in Recho, the right of her five year old daughter to

enjoy the highest standard of protection against epidemics, which all children

have, would be injured. The thought of confining Ms. Shunzette and her child

within the vicinity of influenza outbreak, would run contrary to the obligations of

states to promote and ensure the safety of children. Thus, it is reasonable for Ms.

17Convention on the Rights of the Child (CRC), Article 3 (1)18CRC, Article 3 (2)

15


16/25

Shunzette to take her daughter home to Armis via chartered flight arranged by

the Government of Armis.

II. RECHO BREACHED INTERNATIONAL CUSTOMARY LAW.

Recho breached international customary law because of its failure to uphold

employees internationally recognized rights to work under safe conditions and to

termination of employment only upon valid cause and due process.

Considering the Draft Articles on State Responsibility which embodies

customary international law rules, a State is responsible for an international

wrongful act19 when two elements are present: 1) breach of an international

obligation and 2) attributability of such breach. 20 The two elements are present

when the State of Recho committed an internationally wrongful act when its

National Research Institute (NRI) illegaly dismissed Ms. Shunzette from

employment. This cinstituted breaches of its obligations under internationak right

laws and violations of international labor standards (C.7).

A. Violation of employees right to work under safe conditions

International customary law is created by the practice of States which such

States accept as binding upon them.21 The judgments of the ICJ have been

constant in stating that a customary rule requires the presence of State Practice

19 Articles on State Responsibility (ASR), Art. 120 International Law Commission, Commentaries to the Draft Articles on Responsibility of States for

Internationally Wrongful Acts21International Court of Justice, Statute of the Court, Art. 38 (1) (b)

16


17/25

and Opinio Juris.22 In 1929, in the Case of the Lotus (France v Turkey) (Merits)

(PCIJ Rep Series A No 10), the PCIJ stated that international law is based on the

will of States expressed in conventions or in usages generally accepted as

expressing principles of law.23 The ICJ has developed the two-element theory of

customary law, especially in the North Sea Continental Shelf Cases (Federal

Republic of Germany/Denmark; Federal Republic of Germany/Netherlands)

(Merits) ([1969] ICJ Rep 3), where it states that actions by States not only must

amount to a settled practice, but they must also be such, or be carried out in

such a way, as to be evidence of a belief that this practice is rendered obligatory

by the existence of the rule of law requiring it. 24 The need for such a belief, i.e.

the existence of a subjective element, is implicit in the very notion of the opinio

juris sive necessitatis.25 The States concerned must therefore feel that they are

conforming to what amounts to a legal obligation. 26 Similarly, in the Military and

Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States

of America) (Merits) (Nicaragua Case) ([1986] ICJ Rep 14), the court stated:

For a new customary rule to be formed not only must the acts concerned

amount to a settled practice but they must be accompanied by the opinio juris

sive necessitatis.27

22Max Planck Encyclopedia of Public International Law, Customary International Law, available athttp://www.mpepil.com/sample_article?id=/epil/entries/law-9780199231690-e1393&recno=34& (lastaccessed Mar 27, 2013).23Id.24Id.25Id.26Id.27 Id.

17
http://www.mpepil.com/sample_article?id=/epil/entries/law-9780199231690-e1393&recno=34&http://www.mpepil.com/sample_article?id=/epil/entries/law-9780199231690-e1393&recno=34&


18/25

In the compromis, state practice and opinio juris on recognition of employees

right to work under safe conditions can be clearly observed in the evacuation of

nationals working in another country performed by Armis and the consent on the

departure of Ms. Shunzette by Recho. Basic human rights are inherent to all

people because they are human and they are universal, so people everywhere

are "rights-holders. Article 3 of the Universal Declaration of Human Rights states

that: Every person has the right to live. Every person has the right to be free and

the right to feel safe wherever he or she may live. 28 Even though there were no

instructions from Armis, Ms. Shunzettes act of leaving Recho would have been

justified because of the world known concept of self-preservation. It would be

an instinct to leave Recho because of the fear that she and her child would catch

influenza. International law supports the recognition of a human right to the

opportunity to be healthy. For example, Article 25 of the Universal Declaration of

Human Rights (UDHR) states: Everyone has a right to a standard of living

adequate for the health and well-being of himself and his family, including food,

clothing, housing, and medical care and necessary social services, and the right

to security in the event of unemployment, sickness, disability, widowhood, old

age or other lack of livelihood in circumstances between his control.29 The

recognition of a right to health is even more firmly set forth in Article 12 of the

International Covenant on Economic, Social, and Cultural Rights (ICESCR)

which compels the approximately 150 signatory states (which does not include

the US) to progressively realize, to the extent feasible given their available

28 Universal Declaration of Human Rights, Article 329 Universal Declaration of Human Rights, Article 25

18


19/25

resources, the rights of everyone to the enjoyment of the highest attainable

standard of physical and mental health and undertake the prevention,

treatment and control of epidemic, endemic, occupational and other diseases. 30

In effect, Article 12 recognizes that the right to health obligates states to take

actions to protect their populations from infectious diseases.

However, upon allowing her to leave, the National Research Institute of

Recho dismissed her as punishment. In essence, Recho did not actually

recognize the said right of Ms. Shunzette because the consent given to her

departure amounted to dismissal.

B. Termination of employment without valid cause and due process

Through international custom, rules in a treaty become binding on third

States.31 Thus, treaties wherein Recho is a third party, binds Recho through

customary rule or international law, recognized as such. Therefore, the

international labor standards which includes enhancement of workers job

security and the obligation to protect the rights of all migrant workers and

members of their families find applicability in instant case although Armis and

Recho are third parties to International Labor Organization Conventions and

International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families.

Ms. Shunzette and her daughter left Recho to avoid the threat of the

influenza. In fact, their home country Armis initiated this evacuation by arranging

30 International Covenant on Economic, Social, and Cultural Rights, Article 1231Vienna Convention on the Law of Treaties, Article 38

19


20/25

chartered flights for the Armis nationals to evacuate Recho and Megoose. The

act executed by Armis is a solid evidence that Recho was not in a safe condition

at the time Ms. Shunzette left the said country together with her daughter. In view

of the aforementioned, this entails that Ms. Shunzette has a sense of

responsibility to her dependent child.

The International Labor Organization addresses such type of issue by means

of the Workers with Family Responsibilites Convention. The convention applies

to men and women workers with responsibilities in relation to their dependent

children, where such responsibilities restrict their possibilities of preparing for,

entering, participating in or advancing in economic activity.32 By this convention,

provisions to assist parents who are also workers were laid out to balance their

obligations with their families. In the Article 8 of the same convention, it provides

that Family responsibilities shall not, as such, constitute a valid reason for

termination of employment.33 It was mandated by the International Labor

Organization Conventions that States must move towards full and productive

employment.34 According to the International Labor Organization Convention on

Termination of Employment in 1982, Article 4, sa worker shall not be terminated

unless there is a valid reason for such termination connected with the capacity or

conduct of the worker or based on the operational requirements of the

undertaking, establishment or service.35 Under its period of notice, it was stated

32Workers with Family Responsibilities Convention, 1981, Article 133Workers with Family Responsibilities Convention, 1981, Article 834 ILO Convention 87 on the Freedom of Association and Protecton of the Right to organize Convention,1948, available at: http://www.canadianlabour.ca/sites/default/files/pdfs/Briefing-Note-C87.pdf, lastaccessedon 19 March 2013.35 ILO 158 Termination of Employment Convention, 1982, Database of Labour Legislation, available at:http://www.ilocarib.org.tt/projects/cariblex/conventions_8.shtml,last accessedon 19 March 2013.

20
http://www.canadianlabour.ca/sites/default/files/pdfs/Briefing-Note-C87.pdfhttp://www.ilocarib.org.tt/projects/cariblex/conventions_8.shtmlhttp://www.canadianlabour.ca/sites/default/files/pdfs/Briefing-Note-C87.pdfhttp://www.ilocarib.org.tt/projects/cariblex/conventions_8.shtml


21/25

that a worker whose employment is to be terminated shall be entitled to a

reasonable period of notice or compensation in lieu thereof, unless he is guilty of

serious misconduct, that is, misconduct of such a nature that it would be

unreasonable to require the employer to continue his employment during the

notice period.36

It was clear from the preceeding statements that Recho violated the said

provisions when they terminated Ms. Shunzette without any valid reason or just

cause and without giving her sufficient period of notice or lack of notice. This is

an unmistakable requisite which cannot be misplaced. It must be ascertained that

a valid cause and a sufficient period must be certain and manifest for such

termination to take effect and be justified. Also, it is well established that grave

and habitual neglect should be evident practice by the employee in question.

While it is tangible in every state's civil code it is common practice and customary

law to make plain the gravity of said offense and the frequency of such practice.

The requisite of valid cause is not present. The cause of Ms. Shunzette' s

flight from Recho is attributed to the outbreak of the influenza, and her proximity

to the same. Moreover, a valid order from her state requesting their citizens to

return home, on chartered planes availed off by the State of Armis, was issued

for those living in infected or prone to exposure areas. Both of these defenses,

which where the proximate causes of abondoning her employment, are valid

reasons and cannot lead to her dismissal. All the more when these actions where

exercised to preserve the safety of her ownself and her child's.

36 ILO 158 Termination of Employment Convention 1982, Article 11

21


22/25

The second requisite for valid termination, sufficient notice, is also lacking.

Upon Ms. Shunzette's return to the National Research Institute she was informed

that she was terminated during her leave, based on a well-grounded concern for

safety during the outbreak of the influenza. No notices or whatsoever was given

to her to allow her a right to defend herself from termination. This principle is a

well-recognized general principle of law which is embodied in the aforementioned

cited provisions under the ILO. It is only upon notice can any valid cause of

termination ensues. This substantive requisite in termination from employment is

imposed in order to provide the worker a right to due process and secure them

against arbitrary termination by employers. In this case, the National Research

Institute failed to meet this second requisite, therefore, leading to a violation of

international labor laws.

The National Research Institute also failed to implement laws that will protect

workers (migrant) as supposed by unlawfully dismissing Ms. Shunzette from

work. Again, Recho infringed from its duty to protect Ms. Shunzettes right to

work.

C. Violation of Human Right to Impartial Trial

The term "migrant worker" refers to a person who is to be engaged, is

engaged or has been engaged in a remunerated activity in a State of which he or

she is not a national.37 Migrant workers and members of their families shall have

37International Convention on the Protection of the Rights of All Migrant Workers and Members of TheirFamilies, Article 2(1)

22


23/25

the right to equality with nationals of the State concerned before the courts and

tribunals.38

As a migrant worker, Ms. Shunzette is entitled to an essential human right to

equality with nationals of the State concerned before the courts and tribunals. But

when she brought a suit demanding the revocation of her dismissal, against the

Government of Recho in the competent district court of Recho which had

jurisdiction over the matter, the court decided upon the matter without fully

discussing her legal argumentsmainly based on domestic laws and regulations

relating to human rights as well as the conventions on human rights themselves.

39 Clearly, such is a violation of her right to equality with nationals before the

courts.

D. Damages Suffered by Ms. Shunzette

A state which commits an internationally wrongful act is under obligation to

make full reparation for the injury it caused. Full reparation may take the form of

restitution, compensation, and/or satisfaction.40

Ms. Shunzettes full compensation must cover any financially accessable

damage incurred from her illegal dismissal such as unused leave, back wages,

health and lodging (C.7). She must be compensated fully for all the material and

non-material damages caused Rechos breach of human right laws and

38International Convention on the Protection of the Rights of All Migrant Workers and Members of TheirFamilies, Article 18(1)39 Footnote of Compromis # 8.40 Articles on Responsibility of States for Internationally Wrongful Acts (ASR), Art. 34

23


24/25


25/25

PRAYER FOR RELIEF

For all these reasons, the State of Armis respectfully requests this Honorable

Court to adjudge that:

1. The State of Recho breached the treaties to which both states involved

(Armis and Recho) are member parties, and

2. The State of Recho breached international customary law.

Respectfully submitted,

AGENTS OF APPLICANT

25

ArmisVSrecho Applicant (1)

Documents

Transcript of ArmisVSrecho Applicant (1)