The Case of the Great Football Match between Brolin and Tenovia
- Brolin and Tenovia are two States that share a border; Brolin sits to the west of Tenovia. Brolin’s capital, Gremont, is the location of the International Commission for Long-distance Athletics and Women’s Squash (CLAWS), an international organization devoted to the promotion of women’s athletics and squash worldwide. Tenovia and Brolin are member States of CLAWS. Gremont, to the east of Brolin, is approximately 25 kilometres from the only road border-crossing into Tenovia. The border is marked by a large stone arch over the single dirt road running between the States. Wittson is the name of the border region in Tenovia and Jaynia is the name of the border region in Brolin. According to the domestic laws of both States, when a citizen of Brolin seeks to enter Tenovia (and vice-versa), that individual has to apply for an electronic visa via the internet.
- Tenovia, with a population of about 98,000, has a much smaller population than Brolin, which counts 2.8 million inhabitants. The two main ethnic groups that live in Brolin and Tenovia are the Brolinites and the Tenovis. According to a 2015 census carried out in both States, the proportion of individuals who identify as ethnic Tenovis in Brolin and Tenovia is 6% and 89% respectively.
- The Tenovis are an ancient culture that clings to traditions stemming back hundreds of years, including strict rules of conduct. One such rule is that when a promise is made by an ethnic Tenovi individual, that promise must be kept or the individual will be dishonoured. In ancient Tenovi writings, making a promise is described as a devout act and compliance with promises is a form of worship.
- Every year in September, a football game is held between Brolin and Tenovia. The winner proceeds to the regional finals and plays the winner of an annual game between the two other States in the region, Ixap and Mokad. The tournament has been running for fifty-five years and each year thousands of citizens of Tenovia cross the border by car into Brolin to watch the match.
- Historically, Brolin’s national police force provided security for the football game. However in 2015, austerity measures meant that Brolin decided to look for a cheaper option. That year Brolin hired a private security company, Falconner, to provide security for the game. In 2015 Brolin’s Parliament passed the Falconner security Act (2015), which empowered Falconner’s employees to do the following: check tickets on entry to the stadium, provide security within the stadium during the game and control vehicular traffic on Brolin’s roads in a fifteen-kilometre radius around the stadium on the night of the game, for one week prior to the game and for two days after the game. The Falconner security Act (2015) also empowered Falconner to use “reasonable force” to complete its tasks. Recruitment of Falconner employees remained a matter entirely for Falconner’s management. The Falconner security Act (2015) contained a sunset clause specifying that the law would cease to have effect forty-eight hours after the end of the 2015 football game between Brolin and Tenovia.
- In 2016 there was internal unrest in a western region of Brolin, called Drizac. Brolin’s authorities were so impressed by Falconner’s performance at the 2015 game that they hired Falconner to assist its under-staffed police force to quell the unrest in that region. Domestic legislation, the Drizac management Act (2016), was passed authorising Falconner to take “all action necessary” to put an end to the unrest.
- For the 2017 football game between Brolin and Tenovia, Falconner has again been hired to provide security. Domestic legislation containing identical powers as those contained in the 2015 legislation is enacted in Brolin. The legislation is entitled the Falconner security Act (2017). As in 2015, in 2017 the financial agreement between Falconner and Brolin states that Brolin will pay Falconner a lump sum for its services, adjusted according to the number of employees that the company advises is needed, to a maximum of 500 employees. The government of Brolin will provide Falconner with government-issued uniforms and crowd-control equipment (shields, visors) for each Falconner employee allocated to undertake tasks pursuant to the Falconner security Act (2017), as well as tasers and patrol vehicles with sirens for patrolling the roads around the stadium. All government-issued materials, including the vehicles, are emblazoned with Brolin’s emblem, an acorn. The financial agreement also stipulates that all equipment, uniforms and vehicles provided by Brolin to Falconner must be returned to Brolin after the football match. These will then be used by Brolin’s police force.
- Brolin’s football team is called the Hunters. Its mascot is a brown Labrador called Coco. When she is not at a football match, Coco is kept on a farm in Jaynia. In mid-August 2017, a few weeks before the big football match between Brolin and Tenovia, Coco bites through the fence surrounding her enclosure and walks over the border into the Wittson region of Tenovia. Later that same day, Julie Starman, a citizen of Tenovia (of the Tenovi ethnicity) is hiking in the woods of Wittson when she finds Coco, looking tired and thirsty. Ms. Starman takes Coco to her holiday house in another part of Wittson.
- Coco is missing for a few hours before her minders in Brolin realize that she has disappeared. They immediately alert the police in Brolin. Coco’s minders see paw prints in the dirt road leading towards Tenovia and they tell the police this.
- The Prime Minister of Brolin is very upset that Coco is missing, because historically if Brolin loses the football match against Tenovia, the incumbent government of Brolin loses the next election. The day after Coco’s disappearance, at the request of Brolin’s Prime Minister, a printed media release in relation to Coco’s disappearance is issued on the front page of Brolin’s national newspaper, with a $10,000 reward promised to anyone who can bring Coco back to Brolin safely in time for the football match against Tenovia. At the top of the media release is written “Help Brolin! Help find Coco wherever she is!”
- As well as issuing the media release, the government of Brolin decides to hold information sessions about Coco’s disappearance. At the sessions, held at police stations in Brolin, volunteers are sought to help look for Coco. The government specifically appeals to members of the armed forces, police and Falconner employees to attend the sessions, although attendance is not compulsory for anyone. The CEO of Falconner, keen to impress the government in the hope of securing future contracts, urges her employees to attend. At the information sessions, participants are given photos of Coco and a map which includes the location where Coco is usually kept in Jaynia. The map of the area provided to participants encompasses all of Jaynia and some parts of Wittson.
- Zunitte, a security guard at Falconner who is set to work at the football match against Tenovia, attends one of the information sessions. He is going through a costly divorce and is only on a low-paid, temporary contract with Falconner, so he decides he will do everything he can to get Coco back (and win the reward). He has already been issued with a vehicle by Falconner to patrol outside the stadium, as well as the other necessary equipment and uniform. After the information session, he introduces himself as a staff member of Falconner to an off-duty police officer who is leaving the station after a shift. The police officer is an avid football fan and tells Mr. Zunitte that intelligence suggests that Coco is in Tenovia, just across the border in Wittson. The officer tells Mr. Zunitte that he should look for Coco there.
- Zunitte dresses in the Brolin-supplied uniform, provided to him by Falconner, and drives straight for the location where Coco is usually kept in Jaynia. He then follows the dirt road across the border into the Wittson region of Tenovia. He is driving the car issued to him by Falconner and in the boot of the car he has the government-supplied taser. He does not apply for a visa to enter Tenovia. Once in Wittson, Mr. Zunitte spots Coco being walked along the dirt road by Julie Starman. He turns on the siren of the patrol car and yells out the window for Ms. Starman to stop walking. She does so. Mr. Zunitte jumps out of the car, points the taser at Ms. Starman and says to her: “I am seizing this dog from you. It was stolen from Brolin”. Desperate to get the reward, Mr. Zunitte uses his taser on Ms. Starman’s arm. She faints and is seriously injured when her head hits the rocky ground. Mr. Zunitte bundles Coco into the back of the car and accidentally drops the taser outside the car. He leaves Ms. Starman, unconscious, on the side of the road. Mr. Zunitte drives back across the border into Brolin and immediately takes Coco to Falconner’s head office where she is collected by Brolin authorities.
- Starman is found the same day, still unconscious, by hikers. She is taken to hospital in Tenovia. When she regains consciousness after several hours, doctors tell her that she has numerous fractures to her jaw and skull. From her hospital bed, Ms. Starman makes a report to Tenovian police and is able to describe her assailant as a man wearing a uniform with an acorn on it.
- The assault on Ms. Starman – an outspoken advocate for the rights of the ethnic Tenovi diaspora worldwide – quickly makes headlines in Tenovia. Tenovia’s police search the area of Wittson where Ms. Starman was assaulted and find a taser emblazoned with Brolin’s emblem, as well as tyre marks heading back towards Brolin. The Tenovian police also observe paw prints in the dirt road.
- Back in Brolin, Mr. Zunitte is congratulated on a special live program on national television for bringing back Coco and paid the $10,000 reward. He is called a “national hero” by Brolin’s Minister for Sports, who gives him a State medal, usually reserved for service in Brolin’s emergency services. During the broadcast Mr. Zunitte reveals that he was in the Wittson region of Tenovia when he found Coco. The broadcast is swiftly brought to the attention of Tenovia’s authorities which are now certain that Mr. Zunitte is connected to the assault of Ms. Starman.
- On the same day as the broadcast, Tenovia’s Ambassador to Brolin calls an urgent meeting with Brolin’s Minister of Foreign Affairs to demand the extradition of Mr. Zunitte for questioning in relation to the assault of Ms. Starman. Brolin’s Minister of Foreign Affairs is told that Ms. Starman identified Brolin insignia on the uniform of her assailant. Brolin’s Minister of Foreign Affairs responds that Brolin will do everything in its power to apprehend Mr. Zunitte.
- On the evening of the broadcast, there is a party held at Gremont’s town hall, hosted by Brolin’s Minister of Sports, in honour of the Hunters. Mr. Zunitte is invited and attends the party for two hours. Straight after leaving the party, Mr. Zunitte drives across the border into Ixap in his personal car, fearful of repercussions of his assault on Ms. Starman, and does not return.
- The day after the broadcast, Brolin’s Prime Minister holds a meeting with her advisers in relation to Mr. Zunitte. They decide that their priority must be the football match which is approaching. If Brolin loses the match, morale in the country will be at an all-time low. The economy of Brolin has been in free-fall for the last few months. Brolin’s Prime Minister decides that she will determine what to do exactly with Mr. Zunitte after the football match. In the meantime she decides not to have him arrested so as not to concern the public. Furthermore, she doesn’t want to waste State resources trying to locate him.
- Meanwhile, there is uproar in Tenovia about Ms. Starman’s assault, especially once news reports link a man from Brolin to the assault. There are rallies in Tenovia in the weeks ahead of the football match calling for “revenge” against Brolin, primarily amongst the ethnic Tenovi community. Because of this, Brolin’s Minister of Sports is particularly concerned about violence initiated by citizens of Tenovia at the football match. Every year footballers are injured when objects are thrown onto the pitch by spectators. She fears this year might be worse and wants to ensure the safety of footballers as well as the enjoyment of all spectators.
- The Minister of Sports for Brolin decides to make use of the tradition according to which ethnic Tenovis adhere to all promises that they make by having each person who attends the football match between Brolin and Tenovia sign a declaration in front of security guards at the entrance of the stadium that they will be of good behaviour during the match. On 4 September 2017 Brolin’s Minister of Sports sends a copy of the declaration to her counter-part in Tenovia. This is so that Tenovia’s Minister of Sports can publicise the new security requirement with prospective attendees at the football game. Tenovia’s Minister of Sports responds the next day with a Note to Brolin’s Minister of Sports which includes the following:
I confirm receipt of your Note dated 4 September 2017. However, I have to inform you that a large proportion of the population of Tenovia is made up of ethnic Tenovis who are not traditionally permitted on Thursdays, under any circumstances, to make promises to a stranger. Thursday is the day of worship for Tenovis. Promises may only be made to God on that day, as a demonstration of loyalty to one’s faith. I note that the football match between our nations is scheduled for Thursday 7 September 2017. Therefore I request that Brolin not proceed with the procedure proposed in your Note.
- Brolin does not respond to the Note.
- Finally the day of the football match between Brolin and Tenovia arrives. Brolin institutes its plan of asking every spectator to sign the declaration at the entrance to the stadium. About half the ethnic Tenovis (of all nationalities) who attend the stadium break with tradition and sign the declaration; they are then permitted to enter the stadium. The other half of ethnic Tenovis who arrive at the stadium are unwilling to break with tradition to sign the declaration and Falconner employees do not permit them to enter the stadium. These attendees have to watch the match on giant screens assembled by Brolin outside the stadium in a designated area. The football match goes ahead peacefully and Tenovia wins the game 4-2. However, in the days after the game there is outcry in the ethnic Tenovi community in both Brolin and Tenovia about the obligation to sign the declaration at the entrance of the stadium. They accuse Brolin’s government of being discriminatory against ethnic Tenovis.
- To try to ease tension between Brolin and Tenovia, the Prime Minister of Brolin decides to have a mural painted on the stadium commemorating the historical bonds of friendship between Brolin and Tenovia. On 15 September 2017 a firm based in Brolin, Paintgood, is hired to do the work. The deadline is 29 October 2017. Paintgood’s director, Ms. Desmond, receives full payment in advance for completion of the mural.
- Desmond is a well-known artist of Tenovian nationality, of the Tenovi ethnicity, and is the official portrait artist for the Tenovian royal family. Ms. Desmond is also the daughter of the current Tenovian Minister for Women, who over the last decade has been a leading philanthropist in Tenovia.
- Unfortunately, Ms. Desmond gambles away all the money that Brolin had prepaid her to organize for sub-contractors to assist her to paint the mural. In order to finish the mural in time, Ms. Desmond uses her personal savings to pay the sub-contractors and falls behind on the mortgage repayments for her home in Gremont, where she has lived for many years. The mural is completed by 29 October 2017, but the mortgagee forecloses on Ms. Desmond’s home and she moves into rented accommodation in Gremont on 15 December 2017.
- By mid-January 2018, Ms. Desmond has fallen behind in her rent. She receives multiple letters of demand from her landlord’s solicitors in relation to the unpaid rent throughout February, March and April 2018. Unfamiliar with legal processes, Ms. Desmond makes numerous calls to her mother in Tenovia, asking for advice in relation to the letters of demand.
- On 11 May 2018, Ms. Desmond’s landlord initiates proceedings against her in the appropriate domestic court in Brolin claiming $18,500, made up of rental arrears for the months of January to May 2018, interest and legal costs. Ms. Desmond is summonsed to the domestic court on 1 June 2018. She does not appear but claims, through counsel, that she is immune from the proceedings in the domestic court because she is the national envoy of Tenovia accredited to CLAWS. Her counsel directs the judge in the domestic court to Article 9 of the Convention on the Privileges and Immunities of the International Commission for Long-distance Athletics and Women’s Squash (CLAWS Convention), to which Brolin and Tenovia are Parties. It reads as follows:
(1) Representatives of Members of the Organization shall enjoy in the territory of the host State the privileges and immunities normally enjoyed by diplomatic agents pursuant to Articles 30 and 31 of the Vienna Convention on Diplomatic Relations (1961). Such privileges and immunities are subject to Article 38 of the Vienna Convention on Diplomatic Relations.
(2) Every person entitled to privileges and immunities shall enjoy them from the moment he or she enters the territory of the host State to take up his or her post or, if already in the host State’s territory, from the moment when notification of his or her appointment by the Government of the Member has been received by the host State.
- Article 1 of the CLAWS Convention defines “Organization” as the International Commission for Long-distance Athletics and Women’s Squash. The proceedings in the domestic court are adjourned.
- In response to enquiries by Brolin, on 11 June 2018 Tenovia sends a Note Verbale to Brolin which includes the following paragraphs:
Brolin and Tenovia have always had a peaceful relationship. However, Tenovia cannot idly stand by and watch as Brolin embarks on a path of systematic persecution of ethnic Tenovis within, and outside, its borders. One only has to recall the assault on Ms. Starman by a police officer from Brolin and the discriminatory measures against Tenovis at the great football match between our States. The initiation of civil proceedings in Brolin’s courts against Ms. Desmond is just another example of a system which discriminates against ethnic Tenovis. Tenovia will not tolerate the abrogation of the immunity to which our national envoy to the International Commission for Long-distance Athletics and Women’s Squash (CLAWS) is entitled. Tenovia will continue to protect each and every ethnic Tenovi.
Ms. Desmond was appointed as Tenovia’s Permanent representative to CLAWS in Gremont on 2 March 2018. Notification was sent to the Ministry of Foreign Affairs of Brolin on that day. No response was received from Brolin. Ms. Desmond is the sole representative for Tenovia at CLAWS. Tenovia is a small country and is therefore restrained in the selection of appropriate envoys to CLAWS.
- On the return date of Ms. Desmond’s case on 3 July 2018, the Note Verbale of 11 June 2018 is tendered in the domestic court of Brolin. A letter to the domestic court from Brolin’s Ministry of Foreign Affairs confirms that notification of Ms. Desmond’s appointment was received by Brolin on 2 March 2018 and that Brolin did not respond to the notification. On behalf of Ms. Desmond, the domestic court hears evidence that her rental property, including its large garden, has been used regularly for official functions as part of Ms. Desmond’s position at CLAWS. Ms. Desmond’s landlord argues that Ms. Desmond was only appointed to CLAWS to defeat the claim for rental arrears and because Ms. Desmond is well connected in Tenovia. The court also hears evidence on behalf of the landlord that Ms. Desmond has no expertise in women’s sports and that she has never set foot inside CLAWS’ offices since her appointment.
- Ultimately, the domestic court accepts the veracity of all the evidence before it. However the domestic court judge determines that Ms. Desmond cannot benefit from immunity in relation to the landlord’s claim for rent, and furthermore that her appointment to CLAWS was an abuse of privileges and immunities. Ms. Desmond is ordered to pay the landlord $18,500. There is no possibility of appeal in the Brolin domestic court system.
- Desmond does not comply with the domestic court’s order. On 3 August 2018, she receives a letter from Brolin’s authorities stating that if she does not comply with the court’s order by the end of August 2018 she will be subject to seizure and sale of her private property to the value of $18,500.
- On 28 August 2018, Tenovia institutes proceedings against Brolin before the International Court of Justice in respect of alleged violations of international law by Brolin. Tenovia requests the Court to adjudge and declare that:
a) Brolin violated customary international law by the assault on Ms. Starman in Tenovian territory and by failing to apprehend Mr. Zunitte;
b) Brolin violated its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) by its insistence that attendees at the great football game sign a declaration before being permitted to enter the stadium;
c) Brolin violated, and continues to violate, its obligations towards Tenovia under Article 9 of the CLAWS Convention in relation to Ms. Desmond, Tenovia’s national envoy accredited to CLAWS, by failing to recognize her immunity from all forms of legal process in Brolin.
- Both Parties have made declarations under Article 36(2) of the Statute of the International Court of Justice, accepting the Court’s jurisdiction. No question of jurisdiction or admissibility is raised by either Party.
- Brolin and Tenovia have both ratified the CERD, the Vienna Convention on Diplomatic Relations (VCDR), the CLAWS Convention and the Vienna Convention on the Law of Treaties (VCLT) without any reservation.