2015 Niagara international moot court competition.

• Author: Carmody, Chios
• Position: Canada v. United States

Sponsored by the Canada-United States Law Institute ("CUSLI")

TABLE OF CONTENTS About the Authors Part I: General Information A. Introduction B. Background C. Synopsis of the Facts The Deportation of the Newtons The HBC Bottling Plant Dispute Resolution D. Sources of International Law 1. General 2. Treaties 3. Customary International Law 4. General Principles of Law 5. Decisions and Publicists E. Burdens of Proof Part II: Legal Analysis A. The deportation of Bill and Lucinda 1. Does mandatory deportation violate the right to family unity? Was the Newtons' right to family unity arbitrarily interfered with in the case at hand? Were the restrictions to the Newtons' rights throughout their deportation process in violation of the United States Constitution? Does the mandatory deportation of the Newtons satisfy the balancing test of "necessity" required by international law? Did the United States treat the Newtons unlawfully or unreasonably, considering their status as illegal immigrants? Can the United States restrict the rights of illegal immigrants to preserve the human rights of legal immigrants? 2. Does mandatory deportation violate the rights of the child? Does the CRC reflect customary international law and therefore hold legal authority over the United States? Assuming that the CRC does apply to this case, did the Newtons' mandatory deportation violate the CRC by failing to consider Ken's best interest? 3. Does mandatory deportation constitute impermissible discrimination under international law? Does the right to the protection of the family and family unity potentially violate impermissible discrimination under international law? 4. What are the effects of executive changes to the DACA? B. The Huron Bottling Company plant groundwater removal 1. Is groundwater that is connected to a transboundary body of water between the United States and Canada, subject to international law? 2. Was Canada obligated to communicate with the United States about the removal of groundwater from the Vandal Lake aquifer? 3. Was there an obligation of equitable use of the Vandal Lake aquifer under international law? PART I: GENERAL INFORMATION

1. Introduction

   The purpose of this Bench Memorandum is to provide judges in the Niagara International Moot Court Competition a summary of the basic factual and legal issues in the 2015 Niagara Moot Court Competition Problem (the "Compromis"). This Bench Memorandum should be read in conjunction with the teams' two briefs that you are judging; (1) the Compromis, which is in essence a stipulation of facts agreed to by the two parties; and (2) the Corrections/Clarifications that supplement the Compromis. The Compromis is intended to present the competitors with a balanced problem, such that each side has strengths and weaknesses in its case. This Bench Memorandum is not meant to be an exhaustive treatise on the legal issues raised by the Compromis and judges should not be surprised if, in evaluating either a brief or an oral argument, they see arguments or authorities not discussed in this memorandum. Their absence from this bench memorandum does not suggest that such arguments are not relevant or credible.

2. Background

   The 2015 Niagara International Moot Court Competition problem concerns two issues: (1) whether a right of family unity exists under international law and in connection with that right, whether mandatory deportation violates that right and associated children's rights; and (2) whether groundwater connected to a transboundary body of water is subject to international law and if so, whether there was an obligation to communicate about groundwater removal and an obligation of equitable use of groundwater connected to a transboundary body of water.

   With respect to the first issue, the right of family unity and the practice of deportation, there are an estimated twenty-two million non-citizens living in the United States. Of those non-citizens, eleven million have some sort of documentation that allows them to stay in the United States on a provisional basis. About eleven million immigrants are undocumented, which means that either they came to the United States without paperwork or their documentation is expired and they now live in a state of immigration limbo.

   Though undocumented immigrants are at risk of deportation based on their immigration status alone, all non-citizens, including green card holders, can be deported if they are convicted of a crime. Hundreds of thousands of non-citizens are removed from the United States each year (over one million during 2008-2011) and their children are often left behind. There are approximately 5.5 million children in the United States who have an undocumented parent and about 4.5 million of these children are U.S. citizens.

   Since 2008, the number of deportations of alien individuals from the United States has soared to almost 400,000 persons per year. In fiscal year 2011, for example, the United States deported a record-breaking 397,000 people and detained approximately the same amount. According to U.S. federal data, a growing number and proportion of deportees are parents. In the first six months of 2011, the federal government removed over 46,000 mothers and fathers of children with U.S. citizenship. In many of these cases individuals are deported without their U.S. born children, who must remain behind, thereby shattering the family unit and endangering the children left behind. These children are then placed in the U.S. adoption system resulting in the children's' potential loss of contact with their birth parents, thereby becoming "lost children". The Applied Research Center approximates the number of such "lost children" to be in the vicinity of 5,000 or more a year.

   With respect to the second issue, groundwater removal, groundwater is the most important natural resource available to humans; yet, it is the least understood or appreciated. Indeed, groundwater represents approximately 97% of the fresh water resources available, excluding the resources locked in polar ice. By definition, groundwater is in the ground and it is undisputed that states are sovereign with respect to their soil. Because of this, states may have difficulty recognizing that they are not absolutely sovereign with respect to groundwater within their borders, despite the fact that groundwater is shared in some way with other states.

   Currently, states accept that they have obligations vis-a-vis other riparian states regarding internationally shared surface water flowing through their territories or along their boundaries. However, states have difficulty accepting that other states have rights over the way in which an individual state uses the groundwater located within its own territory. These concerns came to light in the International Law Commission (ILC) consideration of the groundwater issue where ILC members concluded that groundwater should be included in the legal regime governing international watercourses because it also flows, although at slower rates, and is related to surface water.

   The salience of this year's 2015 Niagara Moot Court Case, in relation to groundwater, is highlighted by the fact that the sui generis regime of water regulation in the Great Lakes, as agreed between Canada and the United States in the Boundary Waters Treaty of 1909 and again in the 1978 Great Lakes Water Quality Agreement, is largely silent about groundwater. Interestingly, there is also uncertainty in international law regarding groundwater regulation. Notably, the 1997 United Nations Watercourses Convention (the Convention), which entered into force in August 2014, applies to domestic aquifers that are hydraulically linked to transboundary rivers or lakes. While both Canada and the United States voted for the treaty in the U.N. General Assembly, neither has made an effort to sign and/or ratify the Convention and both seem unlikely to do so in the future.

   Though it could be argued that the Convention's norms represent customary international law, it is unclear whether the norms apply equally to groundwater and surface waters. This lack of clarity is magnified by the fact that there is very good statutory practice for the latter, i.e., surface waters, but almost none for the former, i.e., groundwater. A number of other recently concluded international instruments of varying strength could be used to supplement arguments for or against the notion that the Convention represents customary international law. Nonetheless, in most instances their application is in question and cannot be said to definitively represent the state of international law.

3. Synopsis of the Facts

   The Deportation of the Newtons

   On November 10, 2006, newly married Bill and Lucinda Newton left their home in Canada by car and embarked on a road trip to Southern California. The Newtons were residents of Thunder Bay, Ontario and citizens of Canada. The Newtons crossed the border at Grand Portage/Pigeon River, where they were allowed to proceed into the United States without close verification of their passports or drivers' licenses.

   Five days later, they arrived in San Diego. The Newtons were immediately attracted to Southern California and soon after their arrival they decided to stay. Bill began to work as a roofer, and Lucinda worked sporadically as a waitress. They struggled financially and spent several years living in temporary accommodations. Eventually, their life in San Diego became more stable. Bill began a business as a self-employed carpenter and obtained a California Drivers' License and license plates, and in April 2009, they began to rent an apartment in the Chula Vista neighborhood of San Diego.

   With time, Bill and Lucinda became more settled in California; they had a wide circle of friends and Lucinda was able to find various undocumented jobs in the service and hospitality industry to supplement their income. In August 2009, the Newtons had a son together named Ken Newton. Ken...