SYMBIOSIS LAW SCHOOL, NOIDA l ASCENT (International) Moot Court Competition, 14

Ceylon (Applicant) v. India (Respondent)

Competition note

The “facts” set forth below are purely fictional and are designed for the ASCENT International
Moot Court Competition. It is the expectation of MCS that teams will focus on the merits of
the case; arguments about standing, exhaustion, indispensable third parties, and appropriate
forum are beyond the intended scope of the competition.

Jurisdiction

1. This case has been jointly submitted by Ceylon (Applicant) and India (Respondent) under
the International Court of Justice’s (ICJ) ad hoc jurisdiction pursuant to Article 36(1) of the
ICJ Statute. In accordance with Articles 26-28 of the ICJ’s Statute, the two sides have agreed
that the case will be referred to a “special chamber” of the ICJ, consisting of three judges.
This Compromis reflects the agreed facts as negotiated by the Parties.

Facts

2. In August 2003 Snow Boiling (hereinafter ‘Snow’), a Ceyloni citizen then living in Maldives,
Island decided to move to New Delhi, India to attend Delhi University, where he enrolled in a
three-year bachelor’s degree program in Law & Literature. At that time Snow was 21 years
old and was a gay man.

3. In September 2005 Snow met Rock-n-Rolling (hereinafter ‘Rock’), an Indian citizen, at Café
Qahwa, a popular gay bar in KG-II New Delhi. Snow and Rock began dating and decided to
move in together in November 2005. At that time Rock is a professor of Political Science at
Step In College, Delhi University and a popular author on extremist movements. He had
opportunities to live and travel with some extremist ideologues to pen their voice and mediate
with establishments.

4. When Snow graduated from DU in May 2006 Rock offered him a position of intern-editor
and translate the work of Rock. Snow accepted Rock’s offer. Snow was paid Rs.13,000 per
month, from which Snow paid Rock Rs.3750 per month for Snow’s share of the food and other
domestic expenses.

5. Snow and Rock enjoyed each other’s company. They hiked, biked and canoed together
and, after moving in with one another, otherwise lived as a couple by sharing domestic chores.
Snow did most of the cooking and laundry. Rock was responsible for shopping, car repairs
and the yard work around their rented Arts & Crafts-style bungalow in the trendy Waist-land
of Delhi. On weekends they often went to see movies or visit coffee shops and had a mix of
their gay and straight friends over for potluck dinners and parties.

6. On month ends regularly, Snow and Rock went for sailing together on a 22-foot mono-hull
sailboat called Sail into Me, at Rameshwaram which they initially rented from the local area
marina, but which they later purchased as a couple and rechristened The Titanic. Together,
they sailed the waters of the Indian Ocean’s various Islands, which were challenging, but
which taught both men much about sailing. The Titanic was registered and flagged as an
Indian vessel.
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7. Rock authored Hari Putter fantasy series. The series have gained worldwide attention, won
multiple awards, and sold more than 400 million copies. They have become the best-selling
book series in history, and been the basis for a series of films which has become the highest-
grossing film series in history. Rock had overall approval on the scripts and maintained
creative control by serving as a producer on the final instalment. Snow in search of better
went for a year Brightfull scholarship to Stand Bye University, Bangalore then employed by
National Security Agency, Bangalore contractor Boo All Ham for data classification.

8. Things were going well between Snow and Rock. They began to think about how they could
make their relationship more permanent. After a Gay Ride at Jantar Mantar one evening in
March 2007 Rock proposed to Snow and Snow immediately accepted. An immediate issue for
them both was how to formalize their relationship.

9. Due to a successful ballot initiative in 2004 known as, the Civil Marriage Act, 2007
(hereinafter CMA, 2007) was introduced to read:

Policy regarding marriage. It is the policy of India, and its political subdivisions and
territories, that only a marriage between one man and one woman shall be valid or
legally recognized as a marriage. A number of challenges brought in various High Court
to the amendment were unsuccessful at the time of its passage and afterwards. When
Rock and Snow went to the Patiala House Court, New Delhi in April 2007 seeking to
marry, they were denied a marriage license by the Court, who cited CMA, 2007 that
effectively prohibited Same-sex marriage.

10. Both Rock and Snow were devastated by the Judge’s decision and contemplated moving
away from India. However, a local friend of the couple, Water Cooling, was a family lawyer in
New Delhi and confidant to both of them. One night over drinks at a Gay-Day restaurant after
the decision he told them to “wait it out in Delhi … Change is coming … I can feel it!”

11. What Water was referring to was the writ petition by Naz Foundation, a Non-Governmental
Organisation (NGO) as a Public Interest Litigation to challenge the constitutional validity of
“Section 377 of the Indian Penal Code, 1860 (IPC)”. The ruling in “Naz foundation v. NCT of
Delhi (1 May 2007)” made grounds for amendment to CMA, 2007 which created a status of
“domestic partnership” in Indian law in order to afford certain rights to Same-sex couples who
register under CMA, 2007. President of India Jaata Dada signed the amendment on May 9,
2007. While January 1, 2008 was the date the statute would have taken effect, a court
challenge delayed its implementation. The challenge was resolved on February 1, 2008, and
the law went into effect that day, with registrations beginning on February 4, 2008.

12. The Civil Marriage (amendment) Act, 2008 only applies to Same-sex couples. It provides
that two individuals of the same sex wishing to become partners in a domestic partnership
may complete and file a Declaration of Domestic Partnership with the court of registrar’s in
India. Thereafter, they are recognized as “domestic partners”, which gives partners in such
relationships the right to make medical decisions for a partner in crisis, to exercise rights and
responsibilities related to property and inheritance, and to benefit from provisions to protect
children and other dependents. However, s. 2(7) of the Act states:

The Legislative Assembly recognizes that the personal laws limits marriage to the union
of one man and one woman. The Legislative Assembly does not seek to alter this
definition of marriage in any way through the Act and recognizes that the Legislative
Assembly cannot bestow the status of marriage on partners in a domestic partnership.
The Legislative Assembly recognizes that numerous distinctions will exist between
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these two legally recognized relationships. The Legislative Assembly recognizes that
the legal recognition of domestic partnerships under the laws of India may not be
effective beyond the borders of India and cannot impact restrictions contained in other
central laws.

13. At Water Cooling’s urging, Snow and Rock decided to register their relationship under the
CM (A) Act, 2008 and do so before the Mahish Butt, Court of Registrar of Marriage Registration
New Delhi at the Patiala House Court in March 2008. At the time of their registration the
Mahish Butt came out of his office, winked at both of them and said with a grin, “So you guys
are back.” Rock retorted, “Listen, I didn’t ask him to ‘domestically partner’ me!” Snow and
Rock completed the necessary paperwork and, a few minutes after their application was
accepted, they were informed by the Clerk that they become domestic partners under Indian
law. Afterwards, Water Cooling hosted a reception for them at Café Defuse a popular soul
food bistro in Aerocity.

14. Snow and Rock remained deeply disappointed that they could not legally marry in India,
but there were more pressing issues on the horizon after they registered. By mid-2010, due
to the global recession, Indian economy was particularly in trouble. Snow and Rock began to
contemplate their options. Rock decided to move to Mannar Island with Snow. Rock believed
he could re-employ quickly in their work there since an influx of foreign money was priming
the local tourism market there. Rock penned a novel ‘Naked Truth’ on the bare tribes of
Mannar Island that used to be a customary drop of flesh trade. The work become famous
attraction among tourists world over and infamous among literary world.

15. Snow and Rock moved to Mannar Island in mid-2012. Snow got a job with CNN-IBN news
network as data editing and classification, to assist Editor-in-chief Sir Deep Raj Desai to whom
Snow sensed that he classified the National Security Agency data, while Rock worked as an
author for Kiwi Publishing, India. On the weekends the couple continued to sail together on
The Titanic, which they moored at a slip in Mannar’s False Creek. The couple hosted parties
onboard and went sailing through the Gulf of Mannar, often into international waters in Indian
Ocean.

16. The Titanic was built with a stabilizer system, a ‘sea anchor’, that serves as a drag device
and helps steady the sailboat in stormy seas. With use of the sea anchor, The Titanic could
remain virtually stationary for several hours, meaning that Snow and Rock could sleep aboard
the vessel without worrying that the boat would crash into other boats, shallows, or the shore.
There Snow shared much of his experiences as Brightfull scholar at Stand Bye University,
Bangalore and data classification at National Security Agency, Bangalore.

17. One evening in May 2013 while Snow and Rock were asleep on the vessel in international
waters, Rock heard a knock on the hull and left the interior cabin to investigate. Rock thought
that the sea anchor had somehow become detached and that the vessel had hit some rocks.
Instead, Rock was abducted by masked men who had boarded and then left The Titanic taking
Rock with them. Snow remained asleep in the hold, unaware of what was happening. Snow
only discovered that Rock was missing several hours later when, at first daylight, he found
that Rock was gone and radioed for help. In the beginning Snow did not know that Rock had
been abducted and feared that Rock had fallen overboard. Subsequently, the Ceyloni Sri
Lankan Coast Guard conducted a four-day sweep of the area with ships and aircraft that
yielded nothing. Snow returned to Mannar Island distraught, thinking he had lost his life
partner.
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18. When Snow returned to Mannar Island he gave interviews to the media, web-based news
outlets and social net-working about the sad story of Rock’s disappearance. Two weeks later,
while at work, Snow received an email from “Maoist Andrew”, an individual who identified
himself as a member of the Jaffna Liberation Front (JLF). The JLF is an organization working
for the creation of an independent state out of Ceylon. Maoist Andrew’s message indicated
that Rock was alive and healthy and was being held at an undisclosed location in Indian Ocean
by the JLF guerillas, who demanded $5 million for Rock’s release. The JLF are known terrorists
who have conducted a campaign of violence in Asia, blowing up bridges and buildings, and
have been implicated in terrorist attacks in Ulan Bator, the Asian capital. They are the biggest
link in illegal arms trade, arms supply, contract bombing etc. more specifically named in Bali
bombings in 2002. The JLF has been designated as a terrorist organization on lists maintained
by Public Safety Ceylon and Ministry of Home and External Affairs India. Andrew’s email
warned that if payment was not received soon by a certain bank in Facelift, the capital of
Jwalamukhi, “the worst consequences will follow for your friend”.

19. The JLF is known to be active in a wide area across several seas. It is particularly reviled
because it has developed close ties with Somali pirate groups. JLF crews have met Somali
counterparts on the Indian Ocean, where they have conducted training sessions and
exchanges of information and ammunition. In several instances it appears that the JLF and
Somali pirates have conducted joint attacks on vessels in that region and beyond. The JLF’s
strategy of long-range attacks, now spanning the Indian Ocean and including all the
archipelagic triangle between Ceylon, Indonesia and India, is consciously modeled on the
Somalis’ long-range experience off the coasts of Africa and India.

20. Back in Mannar, Snow was deeply upset by Maoist Andrew’s email and did not know how
he would raise the necessary ransom funds. Snow started a web-based appeal for money,
explaining his and Rock’s story. Snow hoped to crowd-source at least some of the cash, a fact
he conveyed on the internet. One other option for ransom money was the sale of The Titanic,
which remained flagged as an Indian vessel but was moored in False Creek. Kiwi publishing
made up their mind for disclosure and approached Snow with $1.5 million advance and $1.5
million post one lakh sale for the pre-publishing consent to the latest work of Rock with
pseudonym Robber Gall Birth a fiction novel The Ruckus Calling, the first of a series that
revealed a large number of NSA’s classified documents. The release of novel is called the most
significant leak in the media history by Hexagon Papers leaker Daniel Elsewhere. The
documents revealed operational details of global surveillance programs run by the NSA and
the other Five Eyes governments of the United Kingdom, India, United States, and Australia,
with the cooperation of a number of sports, businesses and European governments. It
revealed Internet surveillance programs such as PRISM, X Keyscore and Tempora, as well as
the interception of India in European telephone metadata and social networking. The novel is
based on the information Snow shared with Rock while Snow was employed by NSA
contractor Boo All Ham. By the novel, Rock is publishing only one percent of the documents,
with "the worst yet to come". JLF now realizes the worth of Rock and asked him to reveal all
for them to be sold to international news corporations which Rock needles to Snow employed
at CNN-IBN News network.

21. News of Snow’s efforts to raise funds quickly came to the attention of the Office of the
Foreign Exchange Management Agency (FEMA) and Reserve Bank of India (RBI), which took
the position that payment of any part of the ransom to the JLF would “materially assist,
sponsor or provide financial support” for terrorists, contrary to Indian and international law.
FEMA and RBI was particularly concerned that proceeds from the sale of The Ruckus Calling
and The Titanic would end up funding terrorists. On June 1, 2013 RBI therefore prohibited the
sale of The Titanic to any party and issued a communiqué through the FEMA website about
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private efforts to contribute to the ransom for Rock as contrary to the India and international
law. Additional Solicitor General of India Mr. Sid Luth on behalf of Ministry of Home affair filled
a writ petition in the Supreme Court of India to ban the publication of The Ruckus Calling
immediately as it is dangerous to national and international security moreover particularly
national order and international relations of India with other nations. The Supreme Court of
India has imposed an interim ban on the publication and sale of all such contents in India and
outsourcing abroad the same, and allowed MoH to file FIR against Snow & Rock. They are
both charged under sections 3 and 4 of the Official Secrets Act, 1923, as well as section 124A
of the Indian Penal Code, 1860. Subsequently Snow is arrested by the Indian Coastguard
aboard The Titanic while he was moored at Mannar Islands bay. Zuk Mark the CEO of
Lookbook Inc., Cost Lodick CEO Peeper Inc. sent a letter of condemnation to the President of
India Mr. Jaata Dada for alleged illegal surveillance done into and through their social
networking by global surveillance system to be stopped and dislodged immediately. President
of Germany, France and Russia called the President of India Jaata Dada condemning global
surveillance system and are holding an emergency meeting at Oslo to discuss formal action
to be taken against India and the other countries involved.

Dispute Resolution

22. On the advent of downpour of legal problems Snow approached his Member of Parliament,
Kiran Johar, for assistance. Kiran’s office referred the matter to Ceylon’s Department of
Foreign Affairs and International Trade (DFAIT), which took up the issue in a series of
meetings held between Ceyloni diplomats and officials of the Ministry of Home Affairs, India
on June 10-12, 2013 at the Ceylon Embassy in New Delhi. Ceyloni officials described the
matter as an issue of serious concern between the two countries, particularly since Ceyloni
Foreign Minister, Kumar Senanayke, had repeatedly expressed strong support for both Same-
sex rights and anti-terrorism efforts internationally. Media publications alleged that the
charging of the duo and consequent arrest of the Snow exposed the Indian state’s latent
homophobia.

23. On July 8, 2013 Ceylon issued a Diplomatic Note to India asserting that India had incurred
international responsibility because the Indian state first failed to grant Snow and Rock a
marriage license, then commenced unwarranted actions against Snow and fund raising efforts
through the Supreme Court of India, FEMA and RBI, while “the payment of a ransom is not
contrary to international law, however, in arresting Snow the Indian state had violated the
international law.” The Ministry of Home Affairs, India conveyed the Indian response, also in
the form of a Diplomatic Note, to Ceylon on July 12, 2013 in which it rejected the Ceyloni
position. The Indian Note asserted that “every nation has the right under international law to
establish pre-conditions for marriage as it sees fit, further, that India has exercised legitimate
criminal jurisdiction”. The Indian Note also observed that every country has the right to
protect itself from terrorism and expressed the view that the actions of the honorable SC, RBI
and FEMA in this pursuit were an appropriate response to imminent threats.

24. High-level diplomats from Ceylon and India met into late July 2013 in an effort to resolve
the dispute. However, no agreement was forthcoming. Ceyloni officials then made it clear that
Ceylon viewed the matters at issue as extremely serious and, accordingly, was prepared to
take additional action, including blocking the business of the Regional-Trade Agreement (RTA)
and SAARC summit, if the dispute was not adjudicated before a neutral tribunal. In light of
both the threats of negative publicity surrounding Global Surveillance System and the JLF’s
demand, the two countries agreed in late August 2013 to submit this Compromis with
pertinent legal questions to a special chamber of the ICJ for a binding decision.
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25. Ceylon respectfully requests that this Court:

(a) DETERMINE that India’s action to arrest Snow Boiling constitutes a violation of
international law; and

(b) DETERMINE that India’s blocking of sale proceeds of The Ruckus Calling and sale of The
Titanic constitutes a violation of international law.

26. India respectfully requests that this Court:

(a) DETERMINE that India’s action to arrest Snow Boiling is consistent with international law;
and

(b) DETERMINE that India’s blocking of sale proceeds of The Ruckus Calling and sale of The
Titanic is consistent with international law.

27. Both Ceylon and India agree that all standing and exhaustion requirements are met for
the Court to proceed to the merits of this case. Ceylon and India further agree that the ICJ is
a proper venue for resolving the fate and questions. In addition, Ceylon and India have agreed
to take no further action to enforce their positions with respect to this dispute pending the
outcome of this case. Finally, both Parties have agreed to fully and immediately implement
whatever decision the ICJ renders in this case.

Signed this 28th day of February 2014 in New Delhi

/S/

Kumar Senanayke

Minister of Foreign Affairs, for Ceylon

/S/

Babu Betiya

Minister of Foreign Affairs, India

*. For the purposes of the moot, you may assume that Snow Boiling is at all times a Ceyloni
citizen with authorization to remain in India for the period outlined in the Compromis. You
may also assume that Rock-n-Rolling is at all times an Indian citizen with authorization to
remain in Ceylon for the period outlined in the Compromis.

*************************************************************************