Applicant 2009 - d m harish memorial moot competition

8/12/2019 Applicant 2009 - d m harish memorial moot competition

1/40

TEAMCODE:O

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,THE HAGUE,THE NETHERLANDS

YEAR 2009

THE CASE CONCERNING THE CONSEQUENCES OF THE DISASTER AT MONRON FACTORY AND OTHER RELATED

MATTERS

THE REPUBLIC OF ANGHORE (APPLICANT)

V.

THE REPUBLICS OF RATANKA AND CARISTHAN (RESPONDENTS)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICEWRITTEN SUBMISSION FOR THE APPLICANT

THE 2009D.M.HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT

COMPETITION


2/40

THE 2009D.M.HARISHMEMORIAL GOVERNMENTLAW COLLEGEINTERNATIONALMOOT COURT COMPETITION

INDEX

INDEXOFAUTHORITIES ......................................................................................................... I

STATEMENTOFJURISDICTION ........................................................................................... X

SYNOPSISOFFACTS ................................................................................................................XI

SUMMARYOFARGUMENTS ...............................................................................................XIV

BODYOFARGUMENTS ............................................................................................................ 1

I.] THAT RATANKA AND CARISTHAN ARE JOINTLY RESPONSIBLE FOR CAUSING

TRANSBOUNDARY ENVIRONMENTAL DAMAGE, AND ARE LIABLE TO PAY COMPENSATION FOR

THE SAME. ....................................................................................................................................... 1

A.] That Ratanka has violated the principles of International law by causing transboundary

environmental harm.................................................................................................................. 1

B.]That No direct link can be established between Anghores previous industrial activities and

the current environmental disaster. ............................................................................................. 7

C.]That Caristhan too owes responsibility for the damage and is liable to pay compensation to

Anghore........................................................................................................................................ 7

II. THAT THE REPUBLIC OF CARISTHAN AND RATANAKA ARE JOINTLY RESPONSIBLE FOR

VIOLATION OF ANGHORES TERRITORIAL SOVEREIGNTY AND INTEGRITY.................................. 9

A.]That the conduct of Caristhan constitutes as an act of aggression......................................... 9


3/40


B.]That the use of military base in Ratanka by Caristhan casts responsibility on Ratanka...... 11

III. THAT ANSEIANS ARE RATANKIANS WHO ARE NOT ENTITLED TO REFUGEE STATUS AND

HENCE CAN BE REPATRIATED BACK TO RATANKA...................................................................... 12

A.]That Anseians are Ratankians........ ..................................................................................... 12

B.]That the Anseians are not Refugees and hence can be repatriated back........................... 15

C.]That Ratanka and Caristhan are obligated to pay due compensation to Anghore for the cost

incurred by it on the welfare of Anseians. ................................................................................. 18

IV.THAT CARISTHAN HAS VIOLATED ITS COMITY OBLIGATIONS UNDER INTERNATIONAL LAW

....................................................................................................................................................... 19

CONCLUSION ........................................................................................................................ XVII


4/40


----------------------------------Memorial for the Applicant---------------------------------------- i

INDEX OF AUTHORITIES

I. UNDOCUMENTSANDRESOLUTIONSCharter of the United Nations, 15 U.N.C.I.O.335 ........................................................................ 10

Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful

Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th

Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) .............................................................. 10

Declaration on the Human Rights of Individuals who are not Nationals of the Country in which

they live, adopted by the UN General Assembly in 1985, U.N.G.A.RES. 40/114 ................... 17

Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the

International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10,

U.N. Doc. A/56/10 (2001) ................................................................................................... 10, 18

G.A. Res. 1803, U.N. G.A.O.R, 17th Sess. (1962); G.A. Res. 2849; U.N. G.A.O.R. 26th Sess.

(1979); ......................................................................................................................................... 5

G.A. Res. 2849 (XXVI) U.N. Doc. A/RES/2849 (Dec. 20, 1971) ................................................. 1

G.A. Res. 2995 (XXVII) U.N. Doc. A/2995 (Dec. 15, 1972) ........................................................ 1

G.A. Res. 34/186, U.N. Doc. A/RES/34/186 (Dec. 18, 1979) ........................................................ 1

G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001)............................................................ 1

Helsinki Rules on the Uses of the Waters of International Rivers, 1966 Report of the Fifty-

Second Conference-Helsinki 477, 484 (1967) ............................................................................ 2


5/40


6/40


----------------------------------Memorial for the Applicant---------------------------------------- iii

Stockholm Declaration on the Human Environment, June 16, 1972, 11 I.L.M. 1416 ................... 1

U.N. Doc. A/8719 (1972) ............................................................................................................... 9

U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N.Doc. A/37/51 .................................................. 3

Universal Declaration of Human Rights art. 22, 25, & 28, G.A. Res. 217A (III), U.N. Doc. A/810

at 71 (1948) .................................................................................................................................. 5

II. JUDICIALDECISIONSAegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19) ..................................... 6

Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ 1406 .............................. 6

Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir. 1999); Kadic v. Karadzic, 70

F.3d 232, 238 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) ........... 6

Chorzw Factory (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 13 ....................................................... 5

Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 248 ............................................................................... 1

Fadeyeva v. Russia, 2005 Eur. Ct. H.R. 379 .................................................................................. 6

Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 152 (Sept. 25) ........................... 4

Hilton v. Guyot, 159 U.S. 113, 16364 (1895)............................................................................. 19

Immigration and Naturalization Service v. Cardoza-Fonesa, 107 S. Ct 1207 (1987) ................. 16

Lake Lanoux Arbitration (Affaire du Lac Lanoux), 12 R.I.A.A. 281 (1957) ................................. 1


7/40


----------------------------------Memorial for the Applicant---------------------------------------- iv

Legal Consequences For States of the Continued Presence of South Africa In Namibia (South-

West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 31 (June 21) ....... 6

Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 ............................ 3, 5

Lopez Ostra v Spain, 1994 Eur. Ct. H.R. 277 ................................................................................. 6

Mehta v. India, 1998 (3) S.C.A.L.E. 602 ........................................................................................ 6

Nationality Decrees issued in Tunis and MoroccoPCIJ, Series B, No. 4 .................................... 12

Nottebohm Case (1955) I.C.J. 4. .................................................................................................. 13

Nuclear Tests (N.Z. v. Fr.) 1974 I.C.J 156 ..................................................................................... 1

Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288, .................................................................................. 4

R v. Immigration Appeal Tribunal, ex parte Jonah(UK) [1985]Immigration Appeals Reports7

................................................................................................................................................... 15

theNottebohmcase, 1955 I.C.J. 20; Stoeck v. Public Trustee[1921] 2 Ch 67; Re Chamberlains

settlement[1921] 2 Ch 533; Oppenheimer v. Cattermole[1976] AC 249 ................................ 12

Trail Smelter Arbitration (U.S. v. Canda.), (1941) 3 U.N.R.I.A.A. 1905 ...................................... 1

Wildlife Soc. of South Africa v. Min. of Env. Affairs and Tourism, 1996 (9) BCLR 1221 (S.C.

Tk); .............................................................................................................................................. 6

III. BOOKS AND TREATISESDAVID A. MARTIN, THE AUTHORITY AND RESPONSIBILITY OF STATES (T. ALEXANDER,

ALIENKOFF,VINCENT CHETAIL EDS.,2003). ............................................................................. 17


8/40


----------------------------------Memorial for the Applicant---------------------------------------- v

DAVID FREESTONE, THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE

CHALLENGE OF IMPLEMENTATION (KLUWER LAW INTL 1996). ................................................. 3

F. KRATOCHWIL, H. MAHAJAN & P. ROHRLICH, PEACE AND DISPUTED SOVEREIGNTY:

REFLECTIONS ON CONFLICT OVER TERRITORY (1985). ............................................................... 9

FRANCOIS,GRANDLIJNEN VAN HET VOLKENRECHT 233(1967) ................................................... 18

G.LOESCHER &LMONAHAN,EDS.,REFUGEES AND INTERNATIONAL RELATIONS259(1989), ... 17

GREEN H.HACKWORTH,DIGEST OF INTERNATIONAL LAW 460(1942) ........................................ 19

HAROLD HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN

INTERNATIONAL ENVIRONMENTAL LAW 121(GRAHAM &TROTMAN 1994). .............................. 4

HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 79 (RICHARD HENRY DANA, JR. ED.,

8TH ED.1866) ............................................................................................................................ 19

IAN BROWNLIE,PRINCIPLES OF PUBLIC INTERNATIONAL LAW 31(3D ED.1979) ......................... 19

INTERNATIONAL LAW AND GLOBAL CLIMATE CHANGE 152 (CHURCHILL AND FREESTONE EDS.

1991) ............................................................................................................................................ 7

J.G.LAMMERS,POLLUTION OF INTERNATIONAL WATER-COURSES:ASEARCH FOR SUBSTANTIAL

RULES AND PRINCIPLES OF LAW 570 ........................................................................................... 1

JEAN-YVES CARLIER, THE GENEVA REFUGEE DEFINITION AND THE THEORY OF THE THREE

SCALES42(PATRICK TWOMEY,FRANCISNICHOLSON EDS.). ................................................... 15


9/40


----------------------------------Memorial for the Applicant---------------------------------------- vi

L.B. SOHN AND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS 2

(1992)......................................................................................................................................... 17

OCONNELL INTERNATIONAL LAW 354(2NDED.,1970) ................................................................. 13

OPPENHEIM'S INTERNATIONAL LAW 642-3 (SIR ROBERT JENNINGS & SIR ARTHUR WATTS EDS.,

8THED.1955) .............................................................................................................................. 13

ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, OECD AND THE

ENVIRONMENT 8(1986). .............................................................................................................. 4

R.PLENDER,INTERNATIONAL MIGRATION LAW 75(1972) ........................................................... 12

SHAW,INTERNATIONAL LAW 754(5TH ED.2003). .......................................................................... 7

VAN PANHUYS,THE ROLE OFNATIONALITY IN INTERNATIONAL LAW 55-56(1959) ................... 18

IV. ARTICLE AND JOURNALSAnthony D'Amato and Kirsten Engel, State Responsibility For The Exportation Of Nuclear

Power Technology, 74 Va. L. Rev. 1988. ....................................................................................... 9

Carol. A. Batchelor, Statelessness and the Problem of Resolving Nationality Status, 10 INTL J.

REFUGEE L. 156 (1998), ............................................................................................................ 13

COMITY, 12 Va. L. Rev. 353 1925-19262, 359 .......................................................................... 19

Durwood Zaelke and James Cameron, Global Warming and Climate Change- an Overview of the

International Legal Process, 5 AM.U.J.INTL L.&POLY265 (1989-1990) ............................ 1


10/40


----------------------------------Memorial for the Applicant---------------------------------------- vii

Eva Kornicker Uhlmann, State Community Interests, Jus Cogens and Protection of the Global

Environment: Developing Criteria for Peremptory Norms, 11 Geo. Int'l Envtl. L. Rev. 101,

135 (1998).6

John Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy

Environment as a Principle of Customary International Law, 25 Colum. J. Envtl. L. 283, 338-

39 (2000) .6

Mark Gray, The International Crime of Ecocide, 26 Cal. W. Int'l L.J. 215, 270-71 (1996). ......... 6

Hans Smit,International Res Judicata and Collateral Estoppel, 9 UCLAL. REV. 44, 53 (1962).

................................................................................................................................................... 19

Harold Maier,Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and

Private International Law, 76 AM. J. INTL. L. 280, 281 (1982) ............................................... 19

J. I. Garvey, Toward a reformulation of International Refugee Law, 26 HARV.IL.J. 483 (1985),

494; . .......................................................................................................................................... 19

R. Hofmann, Refugee Generating Policies and the law of State Responsibility, 45 ZARV 694

(1976), 700; . ............................................................................................................................. 19

L.T. Lee, the Right to Compensation: Refugees and countries of Asylum, 80 AJIL 532 (1986),

535-554. ..................................................................................................................................... 19

Janet Walker, Foreign Public Law And The Colour Of Comity: What's The Difference Between Friends?,

38 Can. Bus. L.J. 36 2003, 48..................................................................................................... 20


11/40


----------------------------------Memorial for the Applicant---------------------------------------- viii

John C. Dernbach, Sustainable Development as a Framework for National Governance, 49

CASE W. RES. 1, 61 (1998). ...................................................................................................... 3

L. Collins, Foreign Relations and the Judiciary(2002), 51 I.C.L.Q. 485.................................... 20

Martin Wagner, The International Legal Rights Of Indigenous Peoples Affected By Natural

Resource Exploitation: A Brief Case Study, 24 Hastings Int'l & Comp. L. Rev. 491 (2001) ..... 7

Organization for Economic Co-Operation and Development, Council Recommendation on the

Implementation of the Polluter-Pays Principle, 14 INTL LEG. MAT. 238 (1975). .................. 4

Posner, The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. Leg. Stud. 187

(1981)........................................................................................................................................... 9

Status of Filipinos for the purposes of Immigration and and naturalization, 32 HARV. L.R.

(1928-9), 809. ............................................................................................................................ 12

Sumudu Atapattu, The Right to a Healthy life or the Right to Die Polluted?: The Emergence of a

Human Right to a Healthy Environment under International Law, 16 Tul. Envtl. L.J. 65 (2002)

..................................................................................................................................................... 6

V. MISCELLANEOUSDOCUMENTSAfrican Charter Protocol to the Amer. Conv. on Human Rights in the Area of Economic, Social

and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69 ............................................................. 6

Air Pollution Prevention and Control Law (1987, revd 1995) (P.R.C.). ....................................... 6

American Convention of Human Rights, 1969,............................................................................ 14


12/40


----------------------------------Memorial for the Applicant---------------------------------------- ix

Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, art.

10, 39 I.L.M. 1257 ....................................................................................................................... 3

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601

et. seq. (2000) .............................................................................................................................. 6

Convention for the Protection of Human Rights and Fundamental Freedoms art. 8., Nov. 4, 1950

..................................................................................................................................................... 6

Convention on Biological Diversity, June 5, 1992, art. 23(1), 31 I.L.M. 818 ................................ 3

Convention on Transboundary Watercourses ................................................................................. 4

Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2,

1971, 11 I.L.M.963 ...................................................................................................................... 5

Convention Relating to Status of Refugees, 19 U.S.T. 6259, T.IA.S. No. 6577, 189 U.N.T.S. 137

................................................................................................................................................... 15

International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3

(1978 ............................................................................................................................................ 5

Konstitutsiia Rossiiskoi Federatsii [Konst. RF] [Constitution] (Russ.) .......................................... 6

Preamble; CBD, United Nations Convention on Biological Diversity, 1992, 31 I.L.M. 818 ........ 5

UNCLOS, United Nations Convention on the Law Of Sea, Dec. 10, 1982, 21 I.L.M. 818 ........... 5

UNFCCC, United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 5

Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978, .................................................... 2


13/40


----------------------------------Memorial for the Applicant---------------------------------------- x

STATEMENT OF JURISDICTION

The Government of the Republic of Anghore is submitting the present dispute between the

Republic of Anghore and the Republics of Ratanka and Caristhan for final resolution to the

International Court of Justice pursuant to a Special Agreement (Compromis). The Courts

jurisdiction is invoked under Article 36(1) read with Article 40(1) of the Statute of the

International Court of Justice, 1950.


14/40


----------------------------------Memorial for the Applicant---------------------------------------- xi

SYNOPSIS OF FACTS

RATANKA: Ratanka is a mountainous nation from where the Mithali River emerges. Its

people have traditionally been involved in subsistence farming and animal husbandry.

They have generally belonged to a single ethnic and religious group, which is one of the

reasons attributed to the 500years of peace there. In the last 50 years the government has

built a mixed economy which has improved the life of atleast 30% of the people.

ANGHORE:Anghore is a country based in the Mithalian Plains, neighbouring Ratanka.

It is significantly better off than Ratanka with thriving Agricultural and industrial bases

and a privatized economy. The relations between Ratanka and Anghore have been cordial

notwithstanding the occasional problems due to differences in economic progress.

CARISTHAN: Caristhan is a coastal country neighbouring Ratanka. It is prosperous

with a total population of 14 million and has a similar type of economy as Anghore.

Historically it has had trade relations with countries world-wide and to safeguard its tradeit also had a strong military. Ratankians and Caristhanis, although neighbours, are two

distinct ethnic groups with no linkages to each other.

CLIMATIC CHANGE:Climatic change has happened in the region affecting Ratanka

the most. The climatic change has been attributed to global warming coupled with the

200 years of industrial activity in Anghore and to some degrees in Caristhan. This has

resulted in the melting of the Ratankian Glacier and shrinking of the Transeian River.

Climate change with deforestation has caused many flash floods too. Although, now

Anghore has championed the cause of environmental protection by changing regulations

on economic activity and use of eco-friendly technology. All these environmental


15/40


----------------------------------Memorial for the Applicant---------------------------------------- xii

changes had a huge impact on a small minority called the Anseians living in the forests

for more than 1,200 years. Their citizenship is in doubt, although; there exists a treaty

signed 200 years ago by Ratanka to exercise sovereignty over the Anseians. In the last

few years they have come out of the forest but have found it tough to integrate into the

Ratankian society.

ECONOMIC AND MILITARY EXPANSION: In 2003, Caristhan as part of its

aggressive policy of military and trade expansion decided to provide Ratanka a USD 20

billion aid for setting up chemical, hydro-electricity, and wind energy units. This also

included the Monron factory, which is the largest chemical unit in the region. Some of

these units took technical assistance from Caristhan although due to ostensible national

interest concerns, specifics were not disclosed. Caristhan was also allowed to open a

military base-supporting 1,00,000 personnel- in Ratanka and also awarded few oil blocks.

THE DISASTER: In 2007, incessant rainfall with the environmental changes caused a

humanitarian crisis in Ratanka. But before it could recover it was hit by renewed rains

which resulted in flash floods which also destroyed the Monron Factory, thereby causing

an environmental disaster. Although the floods subsided in 24 hours the chemicals

contaminated the Mithali River and entered the Transeian forest as well as Anghore. It

was widely believed that contamination of the Mithali River would slip the recession.

REFUGEE INFLUX: Due to the wide spread destruction in Ratanka the Anesians

moved out of the Transeian forest into Anghore. Although they had set up temporary

camps for the Anseians, Anghore clarified that Anesians were Ratankians, not refugees

and Ratanka should take them back. It also wanted compensation from Ratanka and


16/40


----------------------------------Memorial for the Applicant---------------------------------------- xiii

Caristhan for the environmental disater as well as the costs that it had incurred on the

welfare of the Anseians. Ratanka dismissed the demands for compensation, stating it to

be a natural disaster. It also said that Anesians were not Ratankians. Caristhan in response

only issued a press briefing saying that it had no role to play.

MILITARY ACTION: Meanwhile the contaminated Mithali flowing from Anghore was

on the door step of Caristhan. Caristhan sensing the veracity of such a situation asked

Anghore to allow its scientists into Anghore so as to conduct a few tests. But Anghore

demanded that Caristhan first acknowledge responsibility then only it will allow its

scientists. With time ticking away, Caristhan ordered its military personnel based in

Ratanka to provide protection to its scientists to conduct tests, although, after three days

the Caristhani military withdrew from Anghores territory.

BONE OF CONTENTION:Anghore was upset at this development and clarified that

environmental damage cannot be a justification for violation of sovereignty. The relations

between Anghore and Ratanka, and, Anghore and Caristhan started to deteriorate.

Anghore insisted that Ratanka and Caristhan should bear Joint responsibility for the

Economic Disaster. All the parties have decided to accept the Jurisdiction of the

International court of Justice and argue on the merits of the dispute.


17/40


----------------------------------Memorial for the Applicant---------------------------------------- xiv

SUMMARY OF ARGUMENTS

I. THAT RATANKA AND CARISTHAN ARE JOINTLY RESPONSIBLE FOR CAUSING

TRANSBOUNDARY ENVIRONMENTAL DAMAGE, AND ARE LIABLE TO PAY

COMPENSATION FOR THE SAME.

A.] THAT RATANKA HAS VIOLATED THE PRINCIPLES OF INTERNATIONAL LAW BY CAUSING

TRANSBOUNDARY ENVIRONMENTAL HARM

A.1] That Ratanka has violated the customary international law regarding transboundary

pollution.

A.2] That Ratanka has breached the duties cast upon it by the ILC Draft Articles.

A.3]That Ratanka has breached the precautionary principle.

A.4]That Ratanka has breached the polluter pays principle.

A.5] That Ratanka has infringed upon the Sovereign Right of Anghore to utilize its Natural

Resources and to be Free from Interference.

A.6] That Ratanka breached an erga omnes obligation to protect the fundamental right to a

decent environment.

A.6.1]That This fundamental right exists as a general principle of international law.

A.6.2]That The right to a safe environment is recognized as customary international law.

B.] ThatNO DIRECT LINK CAN BE ESTABLISHED BETWEEN ANGHORES PREVIOUS INDUSTRIAL

ACTIVITIES AND THE CURRENT ENVIRONMENTAL DISASTER.


18/40


----------------------------------Memorial for the Applicant---------------------------------------- xv

C.] That CARISTHAN TOO OWES RESPONSIBILITY FOR THE DAMAGE AND IS LIABLE TO PAY

COMPENSATION TO ANGHORE.

C.1]. That Monron factory was set up with Caristhans aid.

C.2]That The technology transfer from Caristhan to Ratanka pins responsibility on Caristhan

for the resultant disaster.

II. THAT THE REPUBLIC OF CARISTHAN AND RATANAKA ARE JOINTLY

RESPONSIBLE FOR VIOLATION OF ANGHORES TERRITORIAL SOVEREIGNTY AND

INTEGRITY

A.]THAT THE CONDUCT OF CARISTHAN CONSTITUTES AS AN ACT OF AGGRESSION

A.1]That the prohibition of aggression is a pre-emptory norm

A.2]That the only exception to an act of Aggression, self-defence, is not available

B.] THAT THE USE OF MILITARY BASE IN RATANKA BY CARISTHAN CASTS RESPONSIBILITY ON

RATANKA

III. THAT ANSEIANS ARE RATANKIANS WHO ARE NOT ENTITLED TO REFUGEE

STATUS AND HENCE CAN BE REPATRIATED BACK TO RATANKA

A.]THAT ANSEIANS ARE RATANKIANS

A.1]That there is a treaty assigning sovereignty of Anseians to Ratanka.

A.2]That there is an effective link between Anseians and Ratanka

B.]THAT THE ANSEIANS ARE NOT REFUGEESAND HENCE CAN BE REPATRIATED BACK


19/40


----------------------------------Memorial for the Applicant---------------------------------------- xvi

B.1]That Anseians are not refugees

B.2]That as they are Ratankians and not refugees, they can be repatriated back to Ratanka

C.]THAT RATANKA AND CARISTHAN ARE OBLIGATED TO PAY DUE COMPENSATION TO ANGHORE

FOR THE COST INCURRED BY IT ON THE WELFARE OF ANSEIANS.

C.1]That the Republic of Ratanka is obligated to pay compensation

C.2]That the Republic of Caristhan is obligated to pay compensation

IV. THAT CARISTHAN HAS VIOLATED ITS COMITY OBLIGATIONS UNDER

INTERNATIONAL LAW


20/40


----------------------------------Memorial for the Applicant---------------------------------------- 1

BODY OF ARGUMENTS

I. That Ratanka and Caristhan are jointly responsible for causing transboundary

environmental damage, and are liable to pay compensation for the same.

A. That Ratanka has violated the principles of International law by causing transboundary

environmental harm

A.1 That Ratanka has violated the customary international law regarding transboundary pollution.

In accordance with the principle of sic utere tuo, ut alienum non laedas, Ratanka has a

customary duty to prevent and minimize transboundary harm.

1

States cannot use their territory ina manner which causes injury to the territory, property or persons of another State.2 The

international law analogue of this maxim is the principle of limited territorial sovereignty which

points out that a State has an affirmative obligation not to allow major pollution to cross its

borders.3This is supported by decisions of international tribunals,4as well as pronouncements of

private and public international bodies.5 It is also reinforced in Principle 21 of the Stockholm

1Trail Smelter Arbitration (U.S. v. Canda.), (1941) 3 U.N.R.I.A.A. 1905, at 1965 (Mar. 11); Corfu Channel (U.K. v.Alb.), 1949 I.C.J. 248 (Dec. 15); Nuclear Tests (N.Z. v. Fr.) 1974 I.C.J 156 (Dec. 20); Rio Declaration onEnvironment and Development, June 1992, 31 I.L.M. 1261; Stockholm Declaration on the Human Environment,June 16, 1972, 11 I.L.M. 1416; G.A. Res. 2849 (XXVI) U.N. Doc. A/RES/2849 (Dec. 20, 1971); G.A. Res. 2995(XXVII) U.N. Doc. A/2995 (Dec. 15, 1972); G.A. Res. 2996 (XXVII) U.N. Doc. A/2996 (Dec. 15, 1972); G.A. Res.3281 (XXIX) U.N. Doc. A/9631 (Dec. 12, 1974); G.A. Res. 34/186, U.N. Doc. A/RES/34/186 (Dec. 18, 1979); G.A.Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001); UNCLOS, supra note 4, art. 194; Report of the ILC on theWork of its 53rd Session, The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities withCommentaries, U.N. Doc. A/56/10 (July 10, 2001); Durwood Zaelke and James Cameron, Global Warming andClimate Change- an Overview of the International Legal Process, 5 AM.U.J.INTL L.&POLY265 (1989-1990).2

Id. Sic utereprinciple has been reaffirmed in numerous other judicial pronouncements as well.3 J.G. LAMMERS, POLLUTION OF INTERNATIONAL WATER-COURSES: A SEARCH FOR SUBSTANTIAL RULES ANDPRINCIPLES OF LAW570 (1984).4See, e.g., Trail Smelter Arbitration, 3 R.I.A.A. 1911 (1941): "...no state has the right to use or permit the use of itsterritory in such a manner as to cause injury by fumes in or to the territory of another or the properties or personstherein, when the case is of serious consequence and the injury is established by clear and convincing evidence."Corfu Channel Case, 1949 I.C.J. 4, 21; Lake Lanoux Arbitration (Affaire du Lac Lanoux), 12 R.I.A.A. 281 (1957),obiter dictum- customary international law contains "a principle prohibiting the upstream State from changing thewaters of a river in their natural conditions to the serious injury of a downstream State".5Lammer, supra note 3, at 570.


21/40



Declaration on the Human Environment of June 19726. Article IV of the Helsinki Rules7 also

assumes limited territorial sovereignty, while Articles X8 and XI9 of the Helsinki Rules

specifically address trans-frontier river pollution.

A.2 That Ratanka has breached the duties cast upon it by the ILC10 Draft Articles.

A.2.1The ILC Draft Articles on the Law of the Non-Navigational Uses of International

Watercourses prescribe an affirmative duty on the part of a state within whose territory an

emergency originates to "immediately take all practicable measures necessitated by the

circumstances to prevent, mitigate, and eliminate harmful effects of the emergency.11Ratanka

failed to take any such measure with respect to the disastrous chemical spill.

A.2.2 The widely supported12 International Law Commissions Draft Articles on

Prevention of Transboundary Harm from Hazardous Activities13 stipulate that States have an

obligation to take appropriate measures to prevent and minimize the risk of transboundary

harm,14to cooperate in good faith,15to establish suitable monitoring mechanisms and implement

6Stockholm Declaration on the Human Environment, 11 I.L.M. 1416, 1420 (1972), Principle 21 - States have... theresponsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment ofother States or of areas beyond the limits of national jurisdiction7Helsinki Rules on the Uses of the Waters of International Rivers, 1966 Report of the Fifty-Second Conference-Helsinki 477, 484 (1967).8Id. art. X., it prohibits "any new form of water pollution or any increase in the degree of existing water pollution inan international drainage basin which would cause substantial injury in the territory of a co-basin State9 Id. art. XI., provides that a polluting state shall not only be required to cease the polluting activity but also tocompensate the injured state10The International Law Commission (ILC), established by the UN General Assembly, promotes the progressivedevelopment of international law and its codification, Statute of the International Law Commission, G.A. Res.174(II), U.N. GAOR, 2d Sess., 123rdmtg., U.N. Doc. A/519, at 105 (Nov. 21, 1947). This Court has recognized and

cited the work of the ILC in numerous cases.11ILC Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, U.N. GAOR, 49thSess., Supp. No. 10, at 197, U.N. Doc. A/49/10 (1994), art. 28.12G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001).13ILC Prevention Articles and Commentary, U.N. Doc. A/56/10 (July 10,2001), at 381.14Id. art. 3.15ILC Prevention Articles and Commentary, supra note 20, art. 4 and at 396; Stockholm Declaration, supra note 20,Principle 24; Rio Declaration, supra note 20, Principle 7; Vienna Convention on the Law of Treaties, May 23, 1969,8 I.L.M. 679 [hereinafter VCLT]; Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978,17 I.L.M. 1488


22/40



the necessary legislative or administrative controls16 and undertake an assessment of risk.17

Ratanka did not take any measure to avoid or reduce the risk of the potential harm.

A.2.3Ratanka is responsible for the environmental damage under the ILC Draft Articles

on State Responsibility, which apply to wrongful conduct attributable to a State constituting a

breach of its international obligations.18A breaching State is obligated to make full reparation for

the injury caused by the wrongful act.19 Ratanka violated numerous principles of customary

international law in its conduct and should thus be directed to compensate20for the damage.

A.3 That Ratanka has breached the precautionary principle.

Ratanka has violated the precautionary approach, a principle which asserts that each State

has an obligation to prevent environmental damage before it occurs21 and stresses that States

should not wait and see, but rather, should act in anticipation of environmental harm to ensure

that it does not occur.22 It is included in many international environmental law treaties and

agreements.23 The ICJ has recognized the precautionary approach24 as an environmental

16ILC Prevention Articles and Commentary, U.N. Doc. A/56/10 (July 10,2001), art. 5.17Id. art. 7.18Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International LawCommission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10(2001), Art. 119Ibid, art. 31.20Id, art. 36.21 Rio Declaration on Environment and Development, United Nations Conference on Environment andDevelopment, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992) [hereinafter RioDeclaration]; David Wirth, Symposium: The Role of Science in the Uruguay Round and NAFTA Trade Disciplines ,

27CORNELL INTL L.J.817(1994).22John C. Dernbach, Sustainable Development as a Framework for National Governance, 49 CASE W. RES. 1, 61(1998).23Convention on Biological Diversity, June 5, 1992, art. 23(1), 31 I.L.M. 818, Preamble; World Charter for Nature,Principle 11, G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N.Doc. A/37/51 (Oct. 28, 1982);Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, art. 10, 39 I.L.M. 1257.See also DAVID FREESTONE, THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THECHALLENGE OF IMPLEMENTATION (Kluwer Law Intl 1996).24 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 (July 8) [hereinafter NuclearWeapons]. See also Case 180/98, U.K. v. Commission, 1998 E.C.R. I-2265, 2 C.M.L.R. 1125 (1998).


23/40



imperative,25 stating that the precautionary principle may now be a principle of customary

international law.26

Ratanka cannot claimforce majeure to avoid its responsibility in this case, because it was

on notice that Ratanka had been hit by a number of flash floods in the last few years which had

caused widespread loss of life and economic devastation. A state is not required to know with a

level of exact scientific certainty whether a condition will occur; but rather, the precautionary

approach obligates States to take appropriate measures to prevent environmental harm before it

occurs.27Ratanka breached its customary duty when it failed to take proper precautions to avert

the chemical leakage into river Mithali in the event of a foreseeable flood.

A.4 That Ratanka has breached the polluter pays principle.

In refusing to pay for the river water damage, Ratanka is in violation of the polluter pays

principle28which establishes that a state is required to pay for the damage it causes,29even if the

damage results from acts that do not violate customary or conventional international law.30It has

been codified in numerous treaties and international agreements.31The ICJ has recognized the

legitimacy of the polluter pays principle32 and has further acknowledged that the obligation to

25Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 152 (Sept. 25)26Request for an Examination of Situation in Accordance with Paragraph 63 of Court's Judgment of 20 December1974 in Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288, 412 (Sept. 22) [hereinafter Request for Examination].27 HAROLD HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERNINTERNATIONAL ENVIRONMENTAL LAW 121 (Graham & Trotman 1994).28This principle has now developed as customary international law. Sumudu Atapattu, Evolution and the Status of

the Precautionary Principle in International Law, 96 AM. J. INTL L. 1016, 1017 (2002).29

Organization for Economic Co-Operation and Development, Council Recommendation on the Implementation ofthe Polluter-Pays Principle, 14 INTL LEG.MAT. 238 (1975).30 ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, OECD AND THEENVIRONMENT 8 (1986).31e.g., Report of the United Nations Conference on Environment and Development, U.N. Department of Economicand Social Affairs, Agenda Item 21, 2.14 & 30.3, U.N. Doc. A/CONF.151/26 (1992); Convention onTransboundary Watercourses, supra note 57, at art. 2(5)(h), Rio Declaration on Environment and Development,United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1,reprinted in 31 I.L.M. 874 (1992) , Principle 16.32Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 (July 8), at 503.


24/40



make reparations is a principle of international law.33 Thus, in failing to pay for the damage,

Ratanka is in breach of its customary duties, and remains responsible for the ensuing damage.

A.5 That Ratanka has infringed upon the Sovereign Right of Anghore to utilize its Natural

Resources and to be Free from Interference.

Each state has a sovereign right to exploit the natural resources within its jurisdiction. 34

The chemical spill in the Mithali River has affected the ability of people of Anghore to so utilize

the resources of the river. Ratanka is responsible for the degradation of the river and has

therefore infringed upon Anghores sovereignty to utilize its natural resources.

A.6 That Ratanka breached an erga omnes obligation to protect the fundamental right to a decent

environment.

A.6.1 This fundamental right exists as a general principle of international law.

Several international instruments guarantee health and well-being as a fundamental

human right.35Although this does not expressly guarantee the right to a decent environment, all

human rights must be considered evolutionary, so as to afford them the full protection they

deserve.36Preservation of a decent environment is absolutely necessary to fully protect the right

33Chorzw Factory (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 13, at 47 (Sept. 13).34G.A. Res. 1803, U.N. G.A.O.R, 17th Sess. (1962); G.A. Res. 2849; U.N. G.A.O.R. 26th Sess. (1979); Conventionon Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, 11 I.L.M.963, Art. 2(3)[hereinafter Ramsar Convention]; International Tropical Timber Agreement, Jan. 26, 1994, 33 I.L.M. 1014, Art. 1;UNFCCC, United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 851, Preamble;

CBD, United Nations Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, Art. 3, 15(1); UNCLOS,United Nations Convention on the Law Of Sea, Dec. 10, 1982, 21 I.L.M. 818, Art. 56, 58, 61, 193; StockholmDeclaration, supra note 8, Principle 21.35Universal Declaration of Human Rights art. 22, 25, & 28, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948)hereinafter UDHR]; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S.3 (1978) [hereinafter ICESCR].36 Legal Consequences For States of the Continued Presence of South Africa In Namibia (South- West Africa)

Notwithstanding Security Council Resolution 276, 1971 I.C.J. 31 (June 21); Aegean Sea Continental Shelf (Greecev. Turk.), 1978 I.C.J. 3 (Dec. 19); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir. 1999); Kadic v.Karadzic, 70 F.3d 232, 238 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980).


25/40



to health.37 One-hundred seventeen constitutions discuss protection of the environment,

including those of industrialized countries like Russia38, China39, and France.40More than fifty of

these constitutions require State action to preserve the environment.41 This obligation is

reiterated by domestic courts42, international tribunals43, treaties44, and statutes45. The widespread

municipal application of this principle makes it a general principle of international law.

A.6.2 That The right to a safe environment is recognized as customary international law.

This right is contained in "350 multilateral treaties, 1,000 bilateral treaties and a

multitude of instruments of intergovernmental organizations"46 and is a recognized norm of

customary international law.

47

This right, at a minimum, prohibits degradation that deprivespeople of its means of subsistence48, even if the harms are purely intra-state.49Ratankas failure

37 Gabkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 152 (Sept. 25) (Weeramantry, V.P. separateopinion). See also P.K. Rao, Environmental Trade Disputes and the WTO 107 (2001); Eva Kornicker Uhlmann,State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for

Peremptory Norms, 11 Geo. Int'l Envtl. L. Rev. 101, 135 (1998); John Lee, The Underlying Legal Theory to Supporta Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law , 25 Colum.J. Envtl. L. 283, 338-39 (2000); Mark Gray, The International Crime of Ecocide, 26 Cal. W. Int'l L.J. 215, 270-71(1996).38Konstitutsiia Rossiiskoi Federatsii [Konst. RF] [Constitution] (Russ.) art. 36.39Xian Fa, art. 26 (1982) (P.R.C.).402004 Const. Charter of the Environment (Fr.). See also U.S. Dept of Energy, Country Analysis Briefs, France:Environmental Issues (2003).41 E.g., S. Afr. Const. 1996 ch. 2, art. 24(b); 1975 Syntagma [SYN] [Constitution] art. 24(1) (Greece); KuwaitConst., art. 21.42Wildlife Soc. of South Africa v. Min. of Env. Affairs and Tourism, 1996 (9) BCLR 1221 (S.C. Tk); Anufrijeva v.Southwark London Borough Council, [2003] EWCA Civ 1406, Mehta v. India, 1998 (3) S.C.A.L.E. 602.43Fadeyeva v. Russia, 2005 Eur. Ct. H.R. 379; Lopez Ostra v Spain, 1994 Eur. Ct. H.R. 277.44UNCLOS, supra note 5, art. 194; CCC, supra note 5, art. 4; Convention for the Protection of Human Rights andFundamental Freedoms art. 8., Nov. 4, 1950, Europ. T.S. 5; African Charter Protocol to the Amer. Conv. on HumanRights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69.45Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601 et. seq. (2000);

Air Pollution Prevention and Control Law (1987, revd 1995) (P.R.C.).46 Human Rights and the Environment: Final Report by Mrs. Fatma Zohra Ksentini, Special Rapporteur, U.N.ESCOR, Commission on Human Rights, 46th Sess., at 8 & Annex I, princ. 2, at 75, U.N. Doc. E/CN.4/Sub.2/1994/9(1994).47Sumudu Atapattu, The Right to a Healthy life or the Right to Die Polluted?: The Emergence of a Human Right toa Healthy Environment under International Law, 16 Tul. Envtl. L.J. 65 (2002) at 78.48Richard L. Herz, Litigating Environmental Abuse under the Alien Tort Claims Act: A Practical Assessment, 40Va. J. Int'l L. 545 (2000) at 577.49 Martin Wagner, The International Legal Rights Of Indigenous Peoples Affected By Natural Resource

Exploitation: A Brief Case Study, 24 Hastings Int'l & Comp. L. Rev. 491 (2001) at 503.


26/40



to maintain the safety standards in Monron unit has threatened the decent environment of

numerous people, including the tribal minority Anseins, violating this obligation erga omnes.

B. That No direct link can be established between Anghores previous industrial activitiesand the current environmental disaster.

Liability is a feasible mechanism only when the damage is identifiable and traceable to a

State of origin.50 With environmental damage, highly qualified publicists admit that engaging

State responsibility is deficient51 since it is impossible to apply liability to different

environmental harms resulting from varied economic and social activities.52Climate change, in

particular, is caused by cumulative greenhouse gas emissions by all countries that combine in the

atmosphere,53which may even have occurred a long time ago. The flash floods that hit Ratanka

were a result of global warming, Caristhans industrial activities, and most prominently, due to

the deforestation and recent spurt of industrial activity in Ratanka. There is no credible evidence

to conclude with reasonable certainty that the chemical spill was caused due to Anghores

previous industrialisation. Even prior to any climatic changes being noticed, Anghore had made

considerable environment favourable changes in its regulations and industrial activity.

C. That Caristhan too owes responsibility for the damage and is liable to pay compensation

to Anghore.

C.1. That Monron factory was set up with Caristhans aid.

Caristhan provided USD 20 billion in aid to Ratanka to support the setting up of

industrial units, many of which used technology from Caristhan or were built using technical

50SHAW, INTERNATIONAL LAW 754 (5th ed. 2003).51 SHAW, INTERNATIONAL LAW 754 (5th ed. 2003); BROWNLIE, PRINCIPLES OF PUBLICINTERNATIONAL LAW 274 (6th ed. 2003).52Schachter, International Environmental Law, 44 J. INTL AFF. 457, 462 (1991).53Churchill, Controlling Emissions of Greenhouse Gases, in INTERNATIONAL LAW AND GLOBAL CLIMATECHANGE 152 (Churchill and Freestone eds. 1991).


27/40



assistance from Caristhan. It is amply clear that Caristhan had provided technical assistance to

Monron Factory as the speed within which it was able to develop a chemical to break down the

spill could only have meant that it had access to information from Monron Factory. As the aid to

Ratanka was an extension of Caristhans geo-political and military expansion in the region and in

different parts of the world, it needs to accept responsibility for the consequences of the same.

C.2 That Thetechnology transfer from Caristhan to Ratanka pins responsibility on Caristhan for

the resultant disaster.

A state that exports, or allows to be exported, dangerous technology to another state may

be liable under the international law of "state responsibility" regardless of the fact that the injury

occurs outside the exporting nation's territory and involves foreign nationals, rather than citizens

of the state.54The risk of accident can be reduced if international law compels an upgrading of

safety design and construction of hazardous units in advance of public necessity and in the hope

of helping to avert catastrophic accidents.55The twin pillars of the classic law of state

responsibility for injuries to aliens are the doctrine of the international minimum standard and the

standard of nondiscrimination against nonnationals, the essence of both of which is not

implicated with boundary limitation. Newly emerging concepts of international justice among

states arguably dissolve territorial line-drawing in appropriate cases.56Territoriality is irrelevant

especially where abnormally hazardous activities are concerned. Exporting nations could thus be

54

Anthony D'Amato and Kirsten Engel, STATE RESPONSIBILITY FOR THE EXPORTATION OFNUCLEAR POWER TECHNOLOGY, 74 Va. L. Rev. 1988.55 Robert Quentin-Baxter, former special rapporteur for a special study of the International Law Commission,reported that it was suggested to the Commission that the state [of which a multinational corporation is a national]should be liable when it exports dangerous industries to developing states and harm results. International Liabilityfor Injurious Consequences Arising Out of Acts Not Prohibited by International Law: Third Report by Mr. RobertQ. Quentin-Baxter, Special Rapporteur at 20, U.N. Doc. A/CN.4/360 (1982) reprinted in [1982] 2 Y.B. Int'l L.Comm'n at 60-61, U.N. Doc. A/CN.4/SER.A/1982/Add.1 (Part 1) [hereinafter Quentin-Baxter's Third Report].56 See F. KRATOCHWIL, H. MAHAJAN & P. ROHRLICH, PEACE AND DISPUTED SOVEREIGNTY: REFLECTIONS ONCONFLICT OVER TERRITORY (1985).


28/40



held to owe a duty to do justice to the foreign populations upon exporting technology that falls

below a given safety standard.

The very act of import-export creates a relationship between the parties that on a social-

contractarian view of justice-and certainly upon an Aristotelian view-gives rise to expectations

of, and a duty of, doing justice, at the very least in the minimal form of compensatory justice. 57

Thus, it would be a denial of justice not to furnish compensation to an injured party in

appropriate circumstances.58Caristhan cannot escape responsibility and liability to compensate

by saying that it had no role in this dispute for reason of not having any direct or indirect role in

the damage caused. The obligation to do justice extraterritorially is clearly not excluded by anycustomary international law norm.59

II. That the Republic of Caristhan and Ratanaka are jointly responsible for violation of

Anghores territorial sovereignty and integrity

A. That the conduct of Caristhan constitutes as an act of aggression

The UN General Assembly adopted a consensus definition of Aggression in 1971.

The U.N. defines "aggression" as "the use of armed force by a State against the sovereignty,

territorial integrity or political independence of another State, or in any other manner

inconsistent with the Charter of the United Nations, as set out in this Definition."60As a

particularized standard for determinations of aggression it complements Article 2(4)61's

general prescription that:All Members shall refrain in their international relations from the

57Anthony D'Amato and Kirsten Engel, State Responsibility For The Exportation Of Nuclear Power Technology, 74Va. L. Rev. 1988.58Posner, The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. Leg. Stud. 187 (1981).59Anthony D'Amato and Kirsten Engel, STATE RESPONSIBILITY FOR THE EXPORTATION OF NUCLEARPOWER TECHNOLOGY, 74 Va. L. Rev. 1988.60U.N. Doc. A/8719 (1972)61Charter of the United Nations, 15 U.N.C.I.O.335, 26 June 1945 [hereinafter UN Charter].


29/40



threat or use of force against the territorial integrity or political independence of any state,

or in any other manner inconsistent with the Purposes of the United Nations. Moreover,

Article 3 of the UN Definition of Aggression62illustrates some of the activities as an act of

aggression. Clause 1 states: The invasion or attack by the armed forces of a State of the

territory of another State, or any military occupation,however temporary, resulting from such

invasion or attack, or any annexation by the use of force of the territory of another State or

part thereof. Caristhans military force had entered into Anghores territory by force and

occupied it for three days63. Therefore, the military action of Caristhan violates Article 2(4)

of the UN charter and constitutes as an act of aggression.

A.1 That the prohibition of aggression is a pre-emptory norm

Article 2(4) of the UN is considered as a pre-emptory norm64which cannot be derogated

from except in the case of self-defence which is expressly mentioned in Article 51 of the UN

charter65 and is also a customary international law66. Furthermore, the Article 26 of the ILC

articles67states that the circumstances precluding wrongfulness do not authorize or excuse any

derogation from a peremptory norm of general international law. So far, relatively few

peremptory norms have been recognized, such as prohibitions of aggression68. Therefore,

circumstances precluding wrongfulness cannot justify a breach of a States obligations under a

peremptory rule of general international law.

62UN definition of Aggression, supra note 1, Article 3(1).63Compromis, 15.64Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of theInternational Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc.A/56/10 (2001) [hereinafter ILC Commentary]., at 208.65See also Article 6, supra note 7.66ILC commentary, supra note 64.67Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law

Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), [hereinafterILC Draft Articles], Article 26 at p. 7.68ILC Commentary, supr note 64 at p. 283.


30/40



A.2 That the only exception to an act of Aggression, self-defence, is not available

The only exception to article 2(4) of the UN charter is the right to self-defence69.

Article 670of the UN Definition of Aggression clearly means that the right of self-defense is

not circumscribed and is available as an affirmative defense to a charge of aggression. The

foremost condition of the right to self-defence is that an armed attack is launched, or is

immediately threatened, against the states territory or forces, (and probably its nationals).71

Anghore did not launch any such armed attack or threat against Caristhan. Therefore, the

actions of Caristhan cannot be considered to be in self defence, and are hence violative of

Anghores territorial integrity and sovereignty.

B. That the use of military base in Ratanka by Caristhan casts responsibility on Ratanka

According to Article 1672of the ILCs state responsibility articles: A State which aids or

assists another State in the commission of an internationally wrongful act by the latter is

internationally responsible for doing so if: (a) That State does so with knowledge of the

circumstances of the internationally wrongful act; and (b) The act would be internationally

wrongful if committed by that State. The obligation not to use force may also be breached by an

assisting State through permitting the use of its territory by another State to carry out an armed

attack against a third State.73 Ratanka provided its territory for Caristhans military base, and

69UN Charter, supra note 2, Article 51.70UN Definition of Aggression, supra note 1, article 6 - Nothing in this definition shall be construed as in any way

enlarging or diminishing the scope of the Charter including its provisions concerning cases in which the use of forceis lawful.71Supra note 2.72Ibid, ILC Draft Articles, Article 16 at p. 2.73ILC commentary, supra note 8, Article 16 at p. 157. For example, a statement made by the Government of theFederal Republic of Germany in response to an allegation that Germany had participated in an armed attack byallowing United States military aircraft to use airfields in its territory in connection with the United Statesintervention in Lebanon. While denying that the measures taken by the United States and the United Kingdom in the

Near East constituted intervention, the Federal Republic of Germany nevertheless seems to have accepted that theact of a State in placing its own territory at the disposal of another State in order to facilitate the commission of an


31/40



Caristhan used the same base to use force against the territory of Anghore.74Therefore, the act of

Ratanka in placing its own territory at the disposal of Caristhan in order to facilitate the

commission of an unlawful use of force by it was itself an international wrongful act.

III. That Anseians are Ratankians who are not entitled to Refugee status and hence can be

repatriated back to Ratanka

A. That Anseians are Ratankians

A.1 That there is a treaty assigning sovereignty of Anseians to Ratanka.

Under a treaty with Anghore, Ratanka had undertaken to exercise sole sovereignty over

the Anseians75. The natural consequence of such an undertaking is that the people over whom

such sovereignty is exercised would be nationals of that sovereign76. The Permanent Court of

International Justice in its Advisory opinion in the case concerningNationality Decrees issued in

Tunis and Morocco77

emphasized that it not for international law but for the internal law of each

state to determine who is, and who is not, to be considered its national 78. But it explicitly added

that even in respect of matters which in principle were not regulated by international law (like

the questions of nationality), the right of a state to use its discretion may be restricted by

unlawful use of force by that other State was itself an internationally wrongful act, For the text of the note seeZ.a..R.V., vol. 20 (1960), pp. 663-664.74Compromis, 15.75Compromis, 7.76

Filipinos and Puerto Ricans were considered nationals of the U.S.A. as at one point it exercised its sovereigntyover them. R.PLENDER,INTERNATIONAL MIGRATION LAW75 (1972); See also Status of Filipinos for the purposesof Immigration and and naturalization, 32 HARV.L.R. (1928-9), 809.77Nationality Decrees issued in Tunis and MoroccoPCIJ, Series B, No. 4.78See the Advisory opinion of the PCIJ in 1923 on the Nationality Decrees Issued in Tunis and Morocco (French

Zone), Series B, No 4, at p 24; the Nottebohmcase, 1955 I.C.J. 20; Stoeck v. Public Trustee [1921] 2 Ch 67; ReChamberlains settlement [1921] 2 Ch 533; Oppenheimer v. Cattermole [1976] AC 249. Articles 1 and 2 of theHague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930, provides that it is foreach state to determine under its own law who are its nationals and Any question as to whether a person possessesthe nationality of a particular State shall be determined in accordance with the law of that State.


32/40



obligations which it may have undertaken towards other States79. Hence, Ratanka cannot say that

Anseians are not Ratankians in view of the treaty signed with Anghore.

A.2 That there is an effective link between Anseians and Ratanka

The International Court of Justice in the Nottebohm Case80 formulated the doctrine of

Effective Link. The court stated that ...nationality is a legal bond having as its basis a social

fact of attachment, a genuine connection of existence, interest and sentiments, together with the

existence of reciprocal rights and duties.81This doctrinehas since been moulded and developed

into a broader concept in the area of nationality legislation and practice based upon principles

embodied in State practice, treaties, case law and general principles of law.82According to State

practice, birth, descent, or residence can each be presumed to support a genuine and effective

link or substantial connection between the individual and the State83. The principle of habitual

residence has been practiced by civilized nations, which is evidenced in Article 6(3)84 of the

79As an example of treaty obligations conferring on questions of nationality an international character so as not tobe exclusively a matter for the state concerned, see the arbitration between Germany and Poland concerning theAcquisition of Polish Nationality(1924), RIAA, 1, p 401. Note also the decision of the Inter-American Court ofHuman Rights that while the conferment and regulation of nationality fell within the jurisdiction of the state, this

principle was limited by international law for the protection of human rights: Proposed Amendments to theNaturalization provisions of the Political Constitution of Costa Rica (1984), ILR, 79, p 283. See OPPENHEIM'SINTERNATIONAL LAW 642-3 (Sir Robert Jennings & Sir Arthur Watts eds., 8 th ed. 1955); OCONNELLINTERNATIONAL LAW354 (2nded., 1970).80Nottebohm Case (1955) I.C.J. 4.81(1955) I.C.J. 23.82Examples include the 1997 European Convention on Nationality and the 'Principles on Citizenship LegislationConcerning the Parties to the Peace Agreement on Bosnia and Herzegovina', adopted by the Expert Meeting onCitizenship Legislation held in co-operation with the United Nations High Commissioner for Refugees (UNHCR),

the Council of Europe, Office of the High Representative, OSCE, and State party delegates from the five States onthe territory of the former Yugoslavia (attached in Annex to Batchelor, Leclerc, Schack, 'Citizenship and Preventionof Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia', UNHCR EuropeanSeries, Vol.3, No. l, June 1997). Both instruments refer explicitly to the genuine and effective link and request Statesto apply this doctrine in specific circumstances.83Carol. A. Batchelor, Statelessness and the Problem of Resolving Nationality Status, 10 INTL J.REFUGEE L. 156(1998), 157.84Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully andhabitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period

of residence exceeding ten years before the lodging of an application


33/40



European Convention on Nationality.85Hence, it is imperative that Ratanka respects the practice

of civilized nations86 and acknowledges the Anseians as its nationals, who have habitually

resided in the Transeian forest for over ten centuries87.

The other core element of the effective link doctrine as envisaged in the Nottebohm

case88 is the rule of Jus soli, which states that the citizenship of a person is determined by the

place of his birth89. This rule has been incorporated in various Regional conventions and

treaties90. In the instant case Ratanka had undertaken to exercise sole sovereignty over the

Anseians as per a treaty with Anghore91. Every Anseian born post the signing of the treaty was

infact born in Ratanka. So, every living Anseian has in effect been born in Ratanka as every

person born prior to the signing of the treaty i.e. 200 years ago and hence, outside Ratanka would

be dead today. Thus, all living Anseians are Ratankan nationals by birth.

85The article stipulates that each State Party shall provide for the possibility of naturalisation of persons lawfullyand habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a

period of residence exceeding ten years.86As on 6/ 1/ 2009, twenty eight countries have signed it, while eighteen countries, including countries like The

Netherlands, Germany, Switzerland, Denmark and Austria have ratified theEuropean Convention on Nationality-1997; http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=166&CM=&DF=&CL=ENG .87Compromis, 7.88

1955 I.C.J. 4.89Bryan A. Garner (ed. in chief), Blacks law dictionary 880 (8thed. 1999).90American Convention of Human Rights, 1969, Article 20 in COLLECTION OF INTERNATIONAL INSTRUMENTS ANDOTHER LEGAL TEXTS, Vol. II, 140. See also, African Charter on the Rights and Welfare of the Child,1990, article 6,which requires States Parties to extend nationality to children born on die State's territory who receive no othernationality at birth; Many have gone to the extent that every person has the right to the nationality of the State inwhich he was born if he does not have the right to any other nationality and that no person should be arbitrarilydeprived of his nationality.91Compromis 7.


34/40



B. That the Anseians are not Refugees and hence can be repatriated back

B.1 That Anseians are not refugees

Refugees, as defined in the Geneva Convention on the Status of Refugees, 195192possess

four elemental characteristics (i) they are outside their country of origin; (ii) they are unable or

unwilling to avail themselves of the protection of that country, or to return there; (iii) such

inability or unwillingness is attributable to a well founded fear of being persecuted; and (iv) the

persecution feared is based on reasons of race, religion, nationality, membership of a particular

social group, or political opinion93. While (i) the Anseians are outside their country of origin, and

(ii) are unwilling to avail the protection of their country; the other two elements need to be

satisfied further in order to establish Anseians as refugees.

The drafters of the Geneva Convention have not attributed a specific meaning to the term

persecution, so it is to be construed in its ordinary meaning.94In common parlance persecution

can be the actions of persecuting or pursuing with enmity or malignity95. In French, persecution

is defined as a traitement injuste et cruel inflig avec acharnement (unjust and cruel treatment

relentlessly imposed)96. It is the degree, that is, the quantitative and qualitative level of the

violation of basic human rights which determines when the threshold of persecution is reached.

92Convention Relating to Status of Refugees, 19 U.S.T. 6259, T.IA.S. No. 6577, 189 U.N.T.S. 137 [herein afterRefugee Convention].93The Refugee Convention, article 1A(2) defines refugee as follows: As a result of events occurring before 1951and owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a

particular social group or political opinion, is outside the country of his nationality and is unable or owing to such

fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and beingoutside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is

unwilling to return to it.94Vienna Convention on the Law of Treaties, May 1969, 1155 U.N.T.S. 331, [hereinafter VCLT], Article 31(1).Rv. Immigration Appeal Tribunal, ex parte Jonah(UK) [1985]Immigration Appeals Reports7, in which Nolan J heldthat the proper approach must be to apply to the word persecution in its ordinary meaning as found in thedictionary.95CATHERINE SOANES,OXFORD ENGLISH DICTIONARY,659.96Petit Robertdictionary as quoted in JEAN-YVES CARLIER,THE GENEVA REFUGEE DEFINITION AND THE THEORYOF THE THREE SCALES 42 (Patrick Twomey, Francis Nicholson eds.).


35/40



In this connection, reference is frequently made to the cumulative nature of persecution97.

Thus, the Petit Robertdefinition of the French term best reflects the required qualitative (unjust

and cruel) and Quantitative (relentless) nature of the action to constitute persecution98.

In case of Anseians, there is no evidence to conclude that there is a well- founded fear99

of them being persecuted. The reasons which led to migration of the Anesians into Anghore were

the chemical contamination of the Transeian forest and Mithali River100 and the widespread

destruction in Ratanka101. It is not the fear of being persecuted which is preventing the return of

Aseians to their country of origin, but the destruction of their habitat and the humanitarian crisis.

The difficulty of the Anesians in integrating into Ratanka is due to a variety of reasons,

including different economic priorities for the Government, which has caused some social

unrest102. This cant be described as persecution based on race, religion, nationality, membership

of a particular social group, or political opinion. For an action to constitute as persecution it

should be unjust and cruel and should be pursued relentlessly103. Human rights instruments like

ICESCR construe economic rights as progressive rights104

, which do not create an immediate

obligation on the States, but can be secured when the States resources allow. Clearly, human

rights laws also accept economic prioritization. Hence, it cannot be said to be unjust and cruel.

97UNHCR, Handbook, Para. 201.98Vaste Beroepscommissie voor Vluchtelingen (VBC- Flemish Refuge Appeals Board in Belgium) (2ndch.), 17 July1993, W 973, refusing refugee status for a Bulgarian. Quoting HATHAWAY,THE LAW OF REFUGEE STATUS, p. 101;the Belgian board indicated that persecution is a constant or systemic violation of basic Human rights implying aserious assault on human dignity against which the state cannot or will not protect.99For the applicant to have a well founded fear of being persecuted there must be a real risk of persecution. The

US Supreme Court in the case ofImmigration and Naturalization Service v. Cardoza-Fonesa, 107 S. Ct 1207 (1987)stated that one can certainly have a well founded fear when there is more than a 50 percent chance of theoccurrence taking place.100Compromis, 12.101Compromis, 13.102Compromis, 7.103Supra no. 27.104 The concept of progressive realization constitutes a recognition of the fact that full realization of all economic,social and cultural rights will generally not be able o be achieved in a short period of time. CESCR GeneralComment 3, The Nature of States Parties Obligations, (Art. 2, par. 1): 14/12/1990, para 9.


36/40



In absence of any action which can be termed as unjust and cruel, there is no question of

relentless pursuit of such action. Thus, there is no fear of persecution based on reasons of race,

religion, nationality, membership of a particular social group, or political opinion. With two of

the four elements disproved, the Anseians cannot be called Refugees and hence are not entitled

to refugee protection.

B.2 That as they are Ratankians and not refugees, they can be repatriated back to Ratanka

As Anseians are not refugees, they can be repatriated back to their Country of Origin

because states possess broad discretion in deciding on the admission and sojourn of non-citizens

into its territory.105. A typical judicial pronouncement states: It is an accepted maxim of

international law that every sovereign nation has the power, as inherent in sovereignty, and

essential to self preservation, to forbid the entrance of foreigners within its dominions, or to

admit them only in such cases and upon such conditions as it may see fit to prescribe .106 Also

the right to expel exists as customary international law107. Hence, Anghore has the right to expel

persons who are not its nationals from its territory.

As a corollary of the right of States to expel foreign nationals108, customary international

law109 imposes a duty on States to admit their nationals. The General Assemblys yearly

105DAVID A.MARTIN,THE AUTHORITY AND RESPONSIBILITY OF STATES(T. Alexander, Alienkoff, Vincent Chetaileds., 2003).106Nishimara Ekiu v. United States, 142 U.S. 651, 658 (1892).107Oppenheim, supra note 5 at p. 616; OCONNELL,INTERNATIONAL LAW, 696-697 (1970); Plender,supra note 2 at

p. 133; L.B.SOHN AND T.BUERGENTHAL (EDS.),THE MOVEMENT OF PERSONS ACROSS BORDERS2 (1992); Thisprinciple as stated above has also been seconded by the Declaration on the Human Rights of Individuals who are notNationals of the Country in which they live, adopted by the UN General Assembly in 1985, U.N.G.A.RES. 40/114,Art. 2(1), 13 December 1985. Nothing in this Declaration shall be interpreted as legitimizing any aliens illegalentry into and presence in a State, nor shall any provision be interpreted as restricting the right of any state to

promulgate laws and regulation concerning the entry of aliens and the terms and conditions of their stay or to

establish difference between nationals and aliens.108 G.S. Goodwin-Gill, Voluntary Repatriation-Legal and Policy Issues in G. LOESCHER & L.MONAHAN,EDS.,REFUGEES AND INTERNATIONAL RELATIONS259 (1989), PLENDER,INTERNATIONAL LAW AND THEMOVEMENT OF PERSONS BETWEEN STATES 20-1, 136-7(Oxford: Clarendon Press, 1978) at 20-1, 136-7.


37/40



endorsement of the United Nations High Commissioner for Refugees (UNHCR) in 1992110and

in 2001111also reiterated the above stand, which calls on all States to take responsibility of their

nationals and accept them back. As Anseians are Ratankan nationals and Anghore has every

right to expel them from its territory, it is obligatory on Ratanka to accept them back.

C. That Ratanka and Caristhan are obligated to pay due compensation to Anghore for the

cost incurred by it on the welfare of Anseians.

C.1 That the Republic of Ratanka is obligated to pay compensation

According to Article 36 of the ILC Draft Articles, a State responsible for an

internationally wrongful act is under an obligation to compensate for the damage caused. As per

Article 2 of the UN Draft Articles of State Responsibility, an international wrongful act occurs

when (a) conduct consisting of an action or omission is attributable to the State under

international law; and (b) that conduct constitutes a breach of an international obligation of the

State.112The act of not accepting its nationals is directly attributable to Ratanka, as the Prime

Minister of Ratanka dismissed Anghores demand to take back the Anseians. Since Anghore as a

sovereign nation has the right to choose as to whom to keep in its territory, this act attributed to

Ratanka has forced Anghore to keep Anesians in its territory against its will. This is a violation

109FRANCOIS,GRANDLIJNEN VAN HET VOLKENRECHT233 (1967); VAN PANHUYS,THE ROLE OFNATIONALITY ININTERNATIONAL LAW 55-56(1959); Plender, supra note 2 at p. 133; L.B. Sohn and T. Buergenthal (eds.), supra note35 at p. 2.110U.N.G.A. Res., 16 December 1992, UN Doc. No. A/RES/47/105, Para 10. The General Assembly underlinesstrongly State responsibility, particularly as it relates to the countries of origin, including addressing root causes,

facilitating voluntary reparation of refugees and the return, in accordance with international practice, of their

nationals which are not refugees. An identical formulation can be found in UNGA Res., 16 December 1991, UNDoc. No. A/RES/ 46/106.111 U.N.G.A. Res. Of 19 December 2001, UN Doc. No. A/RES/56/137, para. 10. The General Assemblyemphasizes the obligation of all states to accept the return of their nationals who have been determined not to be in

need of international protection, and affirms the need for the return of persons to be undertaken in a safe and

humane manner and with full respect for their human rights and dignity, irrespective of the status of the persons

concerned.112Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International LawCommission, Fifty-Third Session, U.N. G.A.O.R., 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), [hereinafterILC Draft Articles], Article 2.


38/40



of the sovereign rights of its neighbours to decide whom they choose to keep in their

territories.113 Hence, this act of Ratanka of not accepting Anseians back is an internationally

wrongful act which obligates Ratanka to pay compensation.

C.2 That the Republic of Caristhan is obligated to pay compensation

Caristhan is also liable to pay compensation to Anghore as the Anseian mass influx is a

direct consequence of the actions taken by it. It has been proved in argument I that Caristhan and

Ratanka are jointly responsible for the transboundary harm caused to Anghore.

IV. That Caristhan has violated its comity obligations under international law

The word Comity may be defined as that reciprocal courtesy which one member of the

family of nations owes to the others. It presupposes friendship and the prevalence of equity and

justice114. Many scholars and courts have variedly characterize

Date post:	03-Jun-2018
Category:	Documents
Upload:	nabilbari
View:	266 times
Download:	1 times

Applicant 2009 - d m harish memorial moot competition

Documents