RMLNLU S 22 - R - IV Best · Case concerning Cultural Property and Protection of Elephants ......

TEAM - S 22 - R

STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION, 2015-16

2015 GENERAL LIST No. 162

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE

Case concerning Cultural Property and Protection of Elephants

THE FEDERAL STATES OF ALIYA

V.

THE REPUBLIC OF RINCOSSI

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE RESPONDENT


TEAM - S 22 - R

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE RESPONDENT


TEAM - S 22 - R

-Memorandum For Respondent- -i-

TABLE OF CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... ii

TABLE OF AUTHORITIES .................................................................................................... vi

Table of Cases ....................................................................................................................... vi

- ICJ Decisions – .............................................................................................................. vi

- Other Judgments – .......................................................................................................... vi

Books and Digests................................................................................................................. vi

Articles and Commentaries .................................................................................................. vii

United Nations and Other Documents/Miscellaneous Sources ......................................... viii

Treaties and Conventions .................................................................................................... ix

QUESTIONS PRESENTED ................................................................................................... xi

STATEMENT OF JURISDICTION ................................................................................. xii

STATEMENT OF FACTS ............................................................................................... xiii

SUMMARY OF ARGUMENTS ....................................................................................... xv

MERITS ..................................................................................................................................... 1

I. RINCOSSI IS NOT LIABLE FOR THE PRIVATE ACTS OF AMBASSADOR

CUSI AND BARNUM URITOVSKY. ............................................................................... 1

A. Ambassador Cusi acted in her private capacity when the conduct complained of

was carried out. .................................................................................................................. 2

B. Acts of members of Barnum Uritovsky cannot be attributed to Rincossi. ................ 3

II. RINCOSSI HAS NOT BREACHED ITS INTERNATIONAL OBLIGATIONS. ....... 4

A. Rincossi has not violated its Treaty obligations. ....................................................... 4

B. Rincossi is not in violation of Customary International Law. ................................. 19

CONCLUSION AND PRAYER FOR RELIEF ...................................................................... 23

-Memorandum for Respondent- -ii-

LIST OF ABBREVIATIONS

1. &: And

2. ¶: Paragraph

3. A.R.S.I.W.A.: Articles on the Responsibility of States for Internationally Wrongful

Acts

4. Art.: Article

5. C.B.D.: Convention on Biological Diversity

6. C.I.T.E.S.: Convention on International Trade in Endangered Species of Wild Fauna

and Flora

7. Cl.: Claims

8. C.M.S.: Convention on the Conservation of Migratory Species of Wild Animals

9. Comm.: Commission

10. Conf.: Conference

11. C.P.C.: Convention on the Means of Prohibiting and Preventing the Illicit Import,

Export and Transfer of Ownership of Cultural Property

12. Doc.: Document

13. E.C.H.R.: European Court of Human Rights

14. E.C.R.: European Court Reports

15. Ed.: Edition

16. Eds.: Editors

17. Eur. J. Int’l L.: European Journal of International Law

18. G.A. Res.: General Assembly Resolution

-Memorandum for Respondent- -iii-

19. G.A.O.R.: General Assembly Official Records

20. G.C.: General Conference

21. Harv. L. Rev: Harvard Law Review

22. I.C.J.: International Court of Justice

23. I.L.A.: International Law Association

24. I.L.C.: International Law Commission

25. I.L.M.: International Legal Materials

26. I.L.M: International Legal Materials

27. I.L.R.: International Legal Reporter

28. Int’l: International

29. Int'l & Comp. L.Q.: International and Comparative Law Quarterly

30. J.: Journal

31. Kg: Kilograms

32. L. : Law/Legal

33. L.Q.: Law Quarterly

34. Ltd.: Limited

35. No.: Number

36. O.E.C.D.: Organization for Economic and Social Development

37. p.: Page

38. P.C.I.J.: The Permanent Court of International Justice

39. Pub.: Publication

40. Pvt.: Private

41. R.I.A.A.: Reports of International Arbitral Awards

-Memorandum for Respondent- -iv-

42. Rep.: Report

43. Res.: Resolution

44. Rio Declaration : United Nations Conference on Environment and Development at

Rio

45. s. : Section

46. Ser.: Series.

47. Sess.: Session

48. Stockholm Declaration: United Nations Conference on Human Environment held at

Stockholm

49. Supp.: Supplement

50. Trans.: Transnational

51. Trib.: Tribunal

52. U.K.: United Kingdom

53. U.N. Doc.: United Nations Document

54. U.N. G.A.O.R. Supp.: United Nations General Assembly Official Record

55. U.N.: United Nations

56. U.N.C.A.C.: United Nations Convention Against Corruption

57. U.N.E.S.C.O.: United Nations Educational, Scientific and Cultural Organization

58. U.N.T.O.C.: United Nations Convention Against Transnational Organized Crime

59. U.N.T.S.: United Nations Treaty Series

60. U.S.: United States

61. v.: Versus

62. V.C.D.R.: Vienna Convention on Diplomatic Relations

-Memorandum for Respondent- -v-

63. V.C.L.T.: Vienna Convention on the Law of Treaties

64. Vol.: Volume

65. Y.B. Int’l L.C.: Year Book of International Law Commission

-Memorandum for Respondent- -vi-

TABLE OF AUTHORITIES

TABLE OF CASES

- ICJ Decisions –

1. Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on

the Prevention and Punishment of the Crime of Genocide) (Merits), 2007 I.C.J. Rep.

43, ¶392………………………………………………………………………………..3

2. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), I.C.J. 226

(1996)………………………………………………………………………………...21

- Other Judgments –

1. Jeanneret v. Anna Vichey, 693 F2d. 259 (1982)………………………………………5

BOOKS AND DIGESTS

1. DAVID CARON & HARRY SCHEIBER, BRINGING NEW LAW TO OCEAN WATERS

(2004)………………………………………………………………………………22

2. DAVID HARRIS, CASES AND MATERIALS IN INTERNATIONAL LAW (2010)……………..1

3. JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE

RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (2002). …………..........1

4. LAKSHMAN GURUSWAMY, INTERNATIONAL ENVIRONMENTAL LAW IN A NUTSHELL

(1997)…………………………………………………………………………..20, 21

-Memorandum for Respondent- -vii-

5. OXFORD DICTIONARY OF ENGLISH (JAMES A. H. MURRAY ET AL EDS., 1961)………5

6. PATRICIA BIRNIE ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT (2009)……19

7. SIR EARNEST SATOW, GUIDE TO DIPLOMATIC PRACTICE (1979)……………………2

ARTICLES AND COMMENTARIES

1. Catharine L. Krieps, Sustainable Use of Endangered Species under Cites: Is It a

Sustainable Alternative, 17 J. Int'l L. 461 (1996). …………………………………….9

2. Elizabeth A. Baldwin, Twenty-Five Years under The Convention On Migratory

Species: Migration Conservation Lessons From Europe, 41 Envtl. L. 535 (2011)….13

3. Ethan Arthur, Poaching Cultural Property: Invoking Cultural Property Law to

Protect Elephants, 17 J. Int’l W.L.P. 231 (2014)…………………………………...4, 6

4. Jane Warring, Underground Debates: The Fundamental Differences Of Opinion That

Thwart U.N.E.S.C.O.'s Progress In Fighting The Illicit Trade In Cultural Property, 19

Emory Int'l L. Rev. 227 (2005)………………………………………………………..7

5. John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J.

Int'l L. 831 (1986)…………………………………………………………………...7, 8

6. Joshua M. Zelig, Recovering Iraq's Cultural Property: What can be done to prevent

Illicit Trafficking, 31 Brook J. Int'l L. 289 (2005)……………………………………..7

7. Kevin F. Jowers, International and National Legal Efforts to Protect Cultural

Property: The 1970 U.N.E.S.C.O. Convention, the United States, and Mexico, 38 Tex.

Int'l L.J. 145 (2003)……………………………………………………………………4

-Memorandum for Respondent- -viii-

8. Ophelie Brunelle-Quraish, Assessing the Relevancy and Efficacy of the United

Nations Convention Against Corruption, 2 Notre Dame J. Int'l & Comp. L. 101

(2011). ………………………………………………………………………………..14

UNITED NATIONS AND OTHER DOCUMENTS/MISCELLANEOUS SOURCES

1. Cyrille de Klemm, Guidelines for Legislation for Implementing C.I.T.E.S. (Nov. 17,

2015), https://portals.iucn.org/library/efiles/documents/EPLP-026.pdf..................9, 10

2. Declaration of the London Conference on the Illegal Wildlife Trade (Nov. 17, 2015),

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281289

/london-wildlife-conference-declaration-140213.pdf..................................................11

3. E.I.A., The Enforcement Imperative: Combating the Illegal Trade in Ivory,

Environmental Investigation Agency (Nov. 17, 2015), https://eia-international.org/wp-

content/uploads/The-Enforcement-Imperative-Low-Res1.pdf....................................20

4. I.L.C., Articles on the Responsibility of States for Internationally Wrongful Acts,

G.A. U.N. Doc. A/56/10 (2001)…………………………...……………….......1, 2, 3

5. I.L.C., Draft Articles on Responsibility of States for Internationally Wrongful Acts

with commentaries, 2 Y. Int’l L. Comm. 45, (2001) …………………………………..3

6. John E. Scanlon, C.I.T.E.S. and confiscated elephant ivory and rhino horn – to

destroy or not destroy? (Nov. 17, 2015),

http://voices.nationalgeographic.com/2014/10/20/cites-and-confiscated-elephant-

ivory-and-rhino-horn-to-destroy-or-not-destroy/#.VEUOAoikaVw.twitter. ………..10

-Memorandum for Respondent- -ix-

7. Lal Kurukulasuriya & Nicholas Robinson, Training Manual on International

Environmental Law (Nov. 17, 2015), http://www.iucnael.org/online-resources/unep-

training-manual.html. ………………………………………………………………..19

8. Laurel Neme, Destroying Elephant Ivory Stockpiles: No Easy Matter (Nov. 17, 2015),

http://voices.nationalgeographic.com/2013/08/02/destroying-elephant-ivory-

stockpiles-no-easy-matter/ …………………………………………………………...20

9. Simon Mackenzie, Protection against trafficking in cultural property,

U.N.O.D.C./CCPCJ/EG.1/2009/CRP.1. …………………………………………...6, 7

10. Stockholm Declaration on the Human Environment, 11 ILM 1417 UN Doc

A/CONF.48/14/Rev.1 (1972)………………………………………………………...21

11. United Nations Office on Drugs and Crime, Legislative Guides For The

Implementation Of The United Nations Convention Against Transnational Organized

Crime And The Protocol Thereto (Nov. 17, 2015),

https://www.unodc.org/pdf/crime/legislative_guides/Legislative%20guides_Full%20v

ersion.pdf. ……………………………………………………………………………17

12. United Nations Office on Drugs and Crime, Technical Guide to U.N.C.A.C. (Nov. 17,

2015), https://www.unodc.org/documents/corruption/Technical_Guide_UNCAC.pdf.

………………………………………………………………………………..15, 16, 20

TREATIES AND CONVENTIONS

1. Vienna Convention on Diplomatic Relations, art. 3, Apr. 18, 1961, 23 U.S.T. 3227, 500

U.N.T.S. 95 ………………………………………………………………………….2, 15

-Memorandum for Respondent- -x-

2. Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and

Transfer of Ownership of Cultural Property, art.1, Nov. 14, 1970, 22 U.S.T. 494, 823

U.N.T.S. 231………………………………………………………………………..4, 6, 8

3. Convention on International Trade in Endangered Species of Wild Fauna and Flora,

Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 243……………………………..….8, 9, 10

4. Convention on Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79……………..11, 12

5. Convention on Migratory Species, Jun. 23, 1979, 1651 U.N.T.S. 333…………….13, 14

6. United Nations Convention Against Corruption, Dec. 9, 2003, 43 I.L.M. 37, 2349

U.N.T.S. 41……………………………………………………………..………14, 15, 16

7. United Nations Convention against Transnational Organized Crime, art. 11(1), Nov. 15,

2000, 40 I.L.M. 335, U.N. Doc. A/55/383…………………………………..…….17, 18

-Memorandum for Respondent- -xi-

QUESTIONS PRESENTED

I. WHETHER THE ACTS OF AMBASSADOR CUSI AND THE MEMBERS OF BARNUM

URITOVSKY ARE ATTRIBUTABLE TO THE REPUBLIC OF RINCOSSI?

II. WHETHER THE REPUBLIC OF RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY NOT

PROSECUTING AMBASSADOR CUSI AND MEMBERS OF BARNUM URITOVSKY AND BY

REFUSING TO RETURN THE CONFISCATED IVORY TO THE FEDERAL STATES OF

ALIYA?

-Memorandum for Respondent- -xii-

STATEMENT OF JURISDICTION

Pursuant to the Joint Notification and the Special Agreement concluded on 19th June 2015,

agreed to therein, between the Federal States of Aliya and the Republic of Rincossi

(collectively "the Parties"), and in accordance with Article 40(1) of the Statute of the

International Court of Justice, the Parties hereby submit to this Court its dispute concerning

Question Relating to a Cultural Property and the Protection of Elephants. In accordance with

Article 36(1) of the ICJ Statute, each party will accept the judgment of the Court as final and

binding. In accordance with Article I of the Special Agreement, the Court is hereby requested

to adjudge the dispute.

-Memorandum for Respondent- -xiii-

STATEMENT OF FACTS

1. Aliya and Rincossi are coastal states on two different continents completely separated by the

Bomud Ocean.

2. The population of Thornon elephants, indigenous to Aliya’s continent has been on a decline

due to hunting and illegal poaching. It is listed as critically endangered on the IUCN Red List

of Threatened Species.

3. 1975 – Aliya establishes Thornon National Park which is guarded and maintains an

inventory.

4. 1977 – Aliya enacts Aliyan Wildlife Protection Act to implement its obligations under

CITES. Rincossi enacts Rincossi Flora and Fauna Trafficking Act to implement its

obligations under CITES.

5. 1980 – Aliya declares all ivory trade illegal.

6. 1990 – Aliya passes legislation declaring Thornon elephants and their parts of scientific and

historic importance to Aliya.

7. 2010 – Rincossi amends its Trafficking Act to provide that it is the policy of Rincossi to

destroy confiscated ivory.

8. July 2014 – Ambassador Cusi of Rincossi travels to Aliya. Upon her return, Rincossi

discovers that she transported 25 kg of illegal ivory back into Rincossi. Joint investigation by

Aliya and Rincossi is launched. Ivory is confiscated.

9. Video footage of Ambassador Cusi making the deal is recovered.

10. November 2014 – Ambassador Cusi’s purchase is linked to Barnum Uritovsky.

11. December 2014 – Large quantity of illegal ivory is confiscated from Barnum Uritovsky. No

arrests are made after investigation.

-Memorandum for Respondent- -xiv-

12. 15 January 2015 – Diplomatic note from Aliya to Rincossi requesting to discuss the case

against Ambassador Cusi and members of Barnum Uritovsky.

13. 2 February 2015 – Rincossi replied informing that necessary action has been taken by

confiscating the ivory and giving a written warning.

14. 19 February 2015 – Aliya replied stating that Rincossi is violating international law by

failing to prosecute them.

15. 3 March 2015 – Rincossi replied assuring Aliya that no international law is being violated.

16. 11 March 2015 – Diplomatic note from Aliya to Rincossi requesting return of confiscated

ivory to Aliya.

17. 31 March 2015 – Rincossi replied disputing whether ivory even qualifies as cultural

property.

18. 8 April 2015 – Aliya replied stating that Cultural Property Convention, UNTOC, UNCAC

and CITES all require Rincossi to return the ivory to Aliya.

19. 17 April 2015 – Rincossi replied the above, and stating Rincossi’s public policy regarding

public destruction of confiscated specimens.

20. On failure of additional negotiations the Parties decide to submit to the International Court of

Justice.

-Memorandum for Respondent- -xv-

SUMMARY OF ARGUMENTS

(I) Rincossi is not liable for the private acts of Ambassador Cusi and the 20 members of

Barnum Uritovsky. Ambassador Cusi’s acts of transporting illegal ivory were

completely out of the scope of her functions as an Ambassador and therefore she

acted in a purely private capacity for which Rincossi cannot be held responsible.

Furthermore, Barnum Uritovsky being a private organization, its acts cannot be

attributed to State of Rincossi as per the Articles on State Responsibility.

(II) Rincossi by refusing to prosecute and arrest Ambassador Cusi and members of

Barnum Uritovsky is not in violation of its treaty obligations keeping in mind the

discretionary power provided to State parties to penalize any violations of the

corresponding treaties. Further, the ivory does not qualify as cultural property as the

same is not rare and there is no mandatory obligation on Rincossi to return the

confiscated ivory under the CPC, CITES, UNCAC and UNTOC. Furthermore, the

destruction of such confiscated wildlife specimen has been recommended by CITES

Conference of Parties and hence it is not in violation of its treaty obligations. Rincossi

has not violated its customary international law obligations as there is no adequate

State practice and opnio juris mandating the prosecution of Ambassador Cusi and

members of Barnum Uritovsky and returning of the confiscated ivory.

-Memorandum for Respondent-

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MERITS

I. THE PRIVATE ACTS OF AMBASSADOR CUSI AND MEMBERS OF

BARNUM URITOVSKY CANNOT BE ATTRIBUTED TO RINCOSSI.

The acts of a person or entity are attributable to the State only where the internal law of the

State grants such person or entity the status of an organ,1 or where it empowers such person

or entity to exercise elements of governmental authority.2 Hence, conduct of private

individuals or entities, not acting on behalf of the State, is not considered as an act of the

State under international law.3 Such conduct may be attributed to the State if and only to the

extent that it has acknowledged and adopted said conduct as its own4, clearly and

unequivocally.5 In the light of these principles, it is submitted by the respondents that the

private acts of Ambassador Cusi and acts of the private organization Barnum Uritovsky

cannot be attributed to Rincossi for the following two reasons. Firstly, that Ambassador Cusi

was acting in her private capacity when the conduct complained of was carried out (A); and

secondly, Barnum Uritovsky being a private organization thus its acts cannot attributed to

Rincossi under international law (B).

1 I.L.C., Articles on the Responsibility of States for Internationally Wrongful Acts, G.A. U.N. Doc. A/56/10

(2001), art. 4(2) [hereinafter A.R.S.I.W.A.]; James Crawford, The International Law Commission’s Articles on

State Responsibility: Introduction, Text and Commentaries 94 (1st ed. 2002).

2 A.R.S.I.W.A., supra note 1, art. 5; Crawford, supra note 1, at 100-01.

3 David Harris, Cases and Materials in International Law 431 (8th ed. 2010).

4 A.R.S.I.W.A., supra note 1, art. 11.

5 Crawford, supra note 1, at 123.


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A. Ambassador Cusi acted in her private capacity when the conduct complained of

was carried out.

Articles on State Responsibility states that the conduct of a State organ or an entity

empowered to exercise elements of the governmental authority, acting in its official capacity,

is attributable to the State even if the organ or entity acted ultra vires.6 The conduct referred

to comprises only the actions and omissions of organs purportedly or apparently carrying out

their official functions, and not the private actions or omissions of individuals who happen to

be organs or the agents of the State.7 It is submitted that Ambassador Cusi acted in a private

capacity and not as per her official capacity when she breached the Aliyan law.

The VCDR broadly outlines the functions of a diplomatic misson.8 These functions of a

diplomatic mission are to represent the sending state, to protect its interests…and to promote

friendly relations between the two countries.9 As per the ARSIWA, cases of exceeding

authority must be distinguished from cases where the conduct is so removed from the scope

of their official functions that it should be assimilated to that of private individuals, not

attributable to State.10 The acts of Ambassador Cusi of transporting illegal ivory from Aliya

to Rincossi can be easily distinguished from the scope of her official functions which she was

entrusted with. Therefore, the acts of Ambassador Cusi amount to a purely private conduct

which cannot be attributed to Rincossi.

6 A.R.S.I.W.A., supra note 1, ¶7.

7 Id.

8 Vienna Convention on Diplomatic Relations art. 3, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95

[hereinafter V.C.D.R.].

9 Sir Earnest Satow, Guide to Diplomatic Practice 12 (5th ed. 1979).

10 A.R.S.I.W.A., supra note 1, ¶7.


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B. Acts of members of Barnum Uritovsky cannot be attributed to Rincossi.

The conduct of private persons or entities is not attributable to the State under international

law.11 The conduct of a person or group of persons shall be considered an act of a State under

international law if the person or group of persons is in fact acting on the instructions of, or

under the direction or control, of that State in carrying out the conduct.12 The ICJ had held

that the de facto organs would be the persons, groups or entities acting in “complete

dependence” on the State, of which they are ultimately merely the instrument.13 It is clear

then that a State may, either by specific directions or by exercising control over a group, in

effect assume responsibility for their conduct.14 In the instant case, Barnum Uritovsky is a

private group which is not under any sort of control of Rincossi.15 The ILC in Art. 8 used

three terms “instructions”, “direction” and “control” which are disjunctive, thus it is sufficient

to establish any one of them to attribute responsibility for the wrongful act.16 It is submitted

that apart from the absence of control, the were no instructions or directions which were

given by Rincossi to Barnum Uritovsky regarding the commission of the act of transporting

illegal ivory from Aliya to Rincossi. Therefore, Rincossi cannot be held liable for the acts of

members of Barnum Uritovsky.

11 I.L.C., Draft Articles on Responsibility of States for Internationally Wrongful Acts with commentaries, 2 Y.

Int’l L. Comm. 45, 47 (2001) [hereinafter Draft Articles].

12 A.R.S.I.W.A., supra note 1, art. 8.

13 Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on the Prevention and

Punishment of the Crime of Genocide) (Merits), 2007 I.C.J. Rep. 43, ¶392.

14 Draft Articles, supra note 11, at 48.

15 Clarification 24.

16 Draft Articles, supra note 11, at 48.


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II. RINCOSSI HAS NOT BREACHED ITS INTERNATIONAL OBLIGATIONS.

A. Rincossi has not violated its Treaty obligations.

i. Rincossi has not breached its obligations under the CPC.

a. Thornon Elephant’s ivory does not qualify as Cultural Property as per CPC.

In order for an object to meet the 1970 Convention’s definition of cultural property, it must

satisfy both elements of Article 1’s two-part test: first, the property, on either religious or

secular grounds, must be “designated by [a member] state as being of importance for

archaeology, prehistory, history, literature, art or science”.17 This broad definition gives

individual states broad power to determine what property it wishes to protect under the 1970

Convention.18 However, the second part of the definition circumscribed state discretion to

some extent by establishing a number of general categories, including “[r]are collections and

specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest”19

into which objects must fall to qualify as cultural property under the Convention. 20

While the Aliyan government enacted a legislation declaring Thornon elephants and their

parts, of scientific and historic importance to Aliya, it is pertinent to note that Thornon

elephants ivory also needs to be “rare” in order to qualify as cultural property. According to

the Oxford Dictionary, rare means “(Of a thing) not found in large numbers and so of

17 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership

of Cultural Property art.1, Nov. 14, 1970, 22 U.S.T. 494, 823 U.N.T.S. 231 [hereinafter C.P.C.].

18 Ethan Arthur, Poaching Cultural Property: Invoking Cultural Property Law to Protect Elephants, 17 J. Int’l

W.L.P. 231, 235 (2014).

19 C.P.C., supra note 17, art. 1.

20 Kevin F. Jowers, International and National Legal Efforts to Protect Cultural Property: The 1970 UNESCO

Convention, the United States, and Mexico, 38 Tex. Int'l L.J. 145, 145 (2003).


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interest or value”.21 However, the ivory is far from being rare. The Thornon elephant is not

unique to Aliya and about 300,000 exist in the continent of Thorno.22 Further, the physical

characteristics of the Thornon elephants are almost identical to that of African elephants.23

While there may be a decline in the populations of these elephants, it does not imply a decline

in their ivory, which is supported by the fact that huge quantity of ivory has been confiscated

by Rincossi.24

On this point, in the Italian claim for restitution in the case of Marie-Louise Jeanneret v.

Vichey,25 the US Court of Appeals held that: ‘There would seem no reasonable prospect that

the US or any other Government would act on Italy’s request for help in securing the return

of the painting. This is especially true in the light of the tenuous nature of the claim that a not

especially notable painting by a French 20th century master who was testified to have left a

thousand paintings constituted an important part of Italy's artistic patrimony. Matisse's

portrait “Sur fond jaune” bore no such relation to Italy as a Raphael or a Bellini Madonna.’

Therefore, considering that Thornon elephants’ ivory does not fulfill the CPC’s definition of

cultural property, Aliya cannot rightfully claim protection under CPC.

b. Arguendo, Rincossi is not obliged to return the confiscated ivory to Aliya.

Considering but not conceding that Thornon elephants’ ivory amounts to cultural property of

Aliya, Rincossi is not obliged to return the same to Aliya as per the CPC. While most of the

1970 Convention’s provisions apply to all cultural property, the protective measures of Art. 7

21 Oxford Dictionary of English 154 (James A. H. Murray et al eds., 8th ed., 1961).

22 Record 5 ¶2.

23 Id.

24 Record 8 ¶23, 26.

25 Jeanneret v. Anna Vichey, 693 F2d. 259 (1982).


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are reserved for cultural property that meets further specifications,26 that is the property must

be properly documented on the inventory of the institution.

An inventory is merely a list describing and enumerating the property contained in an

institution. Pairing DNA analysis with an accurate count of elephant populations would

suffice as a viable elephant inventory.27 Although via DNA sampling it has been proved that

the confiscated ivory came from Thornon National Park, in absence of an accurate elephant

count of the Park,28 it is impossible to connect the confiscated ivory to the current illegal

exportation. It could well have been imported into Rincossi even before the adoption of

CPC, which does not have retroactive effect.29

Although these treaties stress the importance of registries, they relegate the responsibility for

their creation and maintenance to the individual nations.30 In an attempt to solve the problem

of inconsistency, UNESCO endorses a project called “Object-ID” which is a set of uniform

cataloging standards and includes taking a photograph of each object, recording categories of

identifying information (including the type of object, the material composition, the

measurements, any identifiable markings or distinguishing features, the title, the subject, the

date or period, and the maker), and writing a short description containing any additional

26 Arthur, supra note 18, at 240.

27 Arthur, supra note 18, at 249.

28 Record 6 ¶16.

29 Simon Mackenzie, Protection against trafficking in cultural property, U.N.O.D.C./CCPCJ/EG.1/2009/CRP.1.

30 C.P.C., supra note 17, art. 5 (“States Parties to this Convention undertake…establishing and keeping up to

date, on the basis of a national inventory of protected property, a list of important public and private cultural

property whose export would constitute an appreciable impoverishment of the national cultural heritage”).


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information.31 It has been promulgated as the most effective way to harmonize minimum

standards in inventory creation.32 For this purpose maintaining an inventory which includes

only estimates of elephant population in the park33 does not qualify for protection under the

Convention.

Furthermore, Art. 13 of CPC, which although recognizes the indefeasible right of each State

party to declare certain cultural property as inalienable and facilitates recovery of such

property by the State concerned in cases where it has been exported, comes with a

qualification. It recognizes this principle “consistent with the laws” of importing state.34 And

it is the public policy of Rincossi and other countries in Rabab to publicly destroy such

confiscated ivory.35 Also, the need for more states to join the UNESCO Convention is based

on the premise that restitution of cultural property is not considered to be a part of customary

international law.36 Considering the above, it is submitted that Rincossi is not obliged to

return the confiscated ivory to Aliya.

c. Arguendo, if ivory amounts to cultural property of Aliya, Aliya had a

positive obligation to protect it.

31 Jane Warring, Underground Debates: The Fundamental Differences Of Opinion That Thwart U.N.E.S.C.O.'s

Progress In Fighting The Illicit Trade In Cultural Property, 19 Emory Int'l L. Rev. 227, 282 (2005).

32 Simon Mackenzie, Protection against trafficking in cultural property,

U.N.O.D.C./C.C.P.C.J./E.G.1/2009/C.R.P.1.

33 Record 6 ¶16.

34 John Henry Merryman, Two Ways of Thinking about Cultural Property, 80 Am. J. Int'l L. 831, 831 (1986).

35 Record 7 ¶21-22.

36 Joshua M. Zelig, Recovering Iraq's Cultural Property: What can be done to prevent Illicit Trafficking, 31

Brook J. Int'l L. 289, 291 (2005).


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The UNESCO Convention in its preamble imposes an obligation on source nations to care for

cultural property in their national territories, and Art. 5, paragraphs (c) and (d) of the

Convention are consistent with that interpretation.37 The Convention requires contracting

parties to set up national services for the protection of cultural heritage within their territories.

These services must be staffed with qualified people and must: draft laws and regulations for

the protection of cultural heritage; establish and keep up to date inventories of protected

property...38 However, the protection afforded to the Thornon National Park by the Aliyan

government is inadequate, as regular instances of poaching are witnessed.39 Additionally,

although Aliyan legislation declares all ivory trade illegal an underground market for illegal

ivory still exists in Aliya while the Aliyan government has also failed to prosecute some

cases involving ivory trafficking.40

ii. Rincossi has not breached its duty to protect the Thornon Elephants as per

the CITES.

CITES is an international agreement which uses trade measures to protect endangered and

threatened species.41 Compliance with CITES requires that Parties to the Convention take

appropriate measures to enforce the provisions of the present Convention and to prohibit

trade in specimens in violation thereof.42

37 Merryman, supra note 34, at 845.

38 C.P.C., supra note 17, art. 5.

39 Record 6 ¶16.

40 Record 7 ¶19.

41 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 27 U.S.T.

1087, 993 U.N.T.S. 243 [hereinafter C.I.T.E.S.].

42 Id. art. 8(1).


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a. Rincossi is not in violation of its obligations to prohibit the illicit trafficking

of elephant ivory.

CITES mandates States to implement measures to prohibit all trade in violation of the

requirements of the Convention, of species threatened with extinction (those listed in

Appendix I),43 which includes the Thornon elephant.44 Article 8 requires that States should

take appropriate measures to enforce the provisions of the Convention, which involves the

penalizing of trade in such specimens.45 The Rincossi Flora and Fauna Trafficking Act,

enacted in 1977, and amended in 2010 so as to strengthen it, prohibits any international trade

in violation of CITES and provides for the confiscation of any illegally traded specimen.46

Rincossi, by enacting this legislation fulfills its obligations under the CITES. By not

prosecuting Cusi, considering her diplomatic status, and the members of Barnum Uritovsky,

and putting them under close monitoring does not in itself violate the obligations under

CITES. It has been recognized that criminal law is a complex matter and there are

considerable differences from one legal system to another in the type of penalties which can

be imposed and the procedures that must be followed.47 This provides the State parties

discretion in the severity of the penalty imposed for any violation of the Convention. The act

of not prosecuting Ambassador Cusi and members of Barnum Uritovsky is in consonance

43 Catharine L. Krieps, Sustainable Use of Endangered Species under Cites: Is It a Sustainable Alternative, 17 J.

Int'l L. 461, 470 (1996).

44 Record 5 ¶7.

45 C.I.T.E.S., supra note 41, art. 8.

46 Record 7 ¶18.

47 Cyrille de Klemm, Guidelines for Legislation for Implementing C.I.T.E.S. (Nov. 17, 2015),

https://portals.iucn.org/library/efiles/documents/EPLP-026.pdf.


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with the discretion provided to State parties and hence, is not in violation of its obligations

under CITES.

b. Rincossi is not in violation of CITES by refusing to return the confiscated

ivory.

The Convention imposes an obligation on the States to provide for measures to “confiscate or

return” to the State of export of such specimens.48 The Convention does not provide for any

guidance or criteria to assist the parties to make a choice between the two possibilities,49 and

hence, it can be derived that the obligation is to provide for either of the two possibilities. The

Rincossi Flora and Fauna Trafficking Act provides for the confiscation of illegally traded

specimens.50 Since the Convention does not mandate State parties to provide measures for

both “confiscation and return” of confiscated specimen, the actions of Rincossi by refusing to

return the confiscated ivory are not in violation of the Convention.

Further, CITES Res. 9.951 recognizes that the return of confiscated specimen to the state of

origin may result in such specimen being entered into the illegal trade, as is the case with

Aliya, which has an underground market for illegal ivory.52 Resolution 9.1053 recommends

parties to dispose of dead specimen of Appendix I species through destruction. Further,

48 C.I.T.E.S., supra note 41, art. 8(1)(b).

49 Cyrille de Klemm, Guidelines for Legislation for Implementing C.I.T.E.S. (Nov. 17, 2015),

https://portals.iucn.org/library/efiles/documents/EPLP-026.pdf.

50 Record 9 ¶18.

51 C.I.T.E.S., supra note 41, Res. Conf. 9.9 (Rev. C.O.P. 15).

52 Record 7 ¶19.

53 C.I.T.E.S., supra note 41, Res. Conf. 9.10 (Rev. C.O.P. 15).


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previous acts of destruction have been appreciated by the Secretary-General of CITES.54 The

destruction of confiscated wildlife specimen has further been endorsed by the London

Conference,55 which both Aliya and Rincossi participated in.56 Therefore, Rincossi would not

be in violation of its obligations under the CITES or any other international obligation by

destroying the confiscated ivory.

iii. Rincossi has not breached its obligations under the CBD.

a. Rincossi has the sovereign right over its own biological resources and its

actions are not damaging the environment.

Both the Preamble and Art. 3 affirm the sovereignty of States to exploit their biological

resources pursuant to their own environmental policies.57 This right is qualified by states’

“responsibility to ensure that activities within their jurisdiction or control do not cause

damage to the environment...beyond the limits of national jurisdiction.”58 Rincossi’s

environmental policies included not prosecuting Ambassador Cusi and members of Barnum

Uritovsky59 for the violation of CITES. It is submitted that these actions of Rincossi cannot

be attributed to causing environmental damage in Aliya. The continued poaching of the

Thornon elephant in Aliya can be attributed to the inefficiency of Aliya in prosecuting cases

54 John E. Scanlon, C.I.T.E.S. and confiscated elephant ivory and rhino horn – to destroy or not destroy? (Nov.

17, 2015), http://voices.nationalgeographic.com/2014/10/20/cites-and-confiscated-elephant-ivory-and-rhino-

horn-to-destroy-or-not-destroy/#.VEUOAoikaVw.twitter.

55 Declaration of the London Conference on the Illegal Wildlife Trade (Nov. 17, 2015),

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281289/london-wildlife-

conference-declaration-140213.pdf.

56 Record 6 ¶14.

57 Convention on Biological Diversity art. 3, Preamble ¶4, Jun. 5, 1992, 1760 U.N.T.S. 79 [hereinafter C.B.D.].

58 Id.

59 Record 9 ¶28.


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involving ivory trafficking60 and in prohibiting the illicit underground domestic ivory trade

within Aliya.61 Hence, Rincossi’s actions have not caused any environmental damage to

Aliya.

b. Rincossi is fulfilling its objective to conserve and sustainably use biological

resources.

States are responsible for conserving their biological diversity and for using their biological

resources in a sustainable manner.62 Art. 2 defines “sustainable use” as using “components of

biological diversity in a way and at a rate that does not lead to the long-term decline of

biological diversity.”63 Art. 10 lays out different ways in which States can sustainably use

their biological resources, including integrating sustainable use into national decision making

and adopting measures to minimize adverse impacts on biological diversity.64 However,

States are only required to implement these provisions ‘as far as possible and appropriate’.65

In regard to the illicit trafficking of ivory, Rincossi has taken conservation measures ‘as far as

possible and appropriate’.

Rincossi enacted the Rincossi Flora and Fauna Trafficking Act66 and made amendments to

strengthen the Act.67 Further, Rincossi had conducted investigations in a diligent manner

which led to the discovery and confiscation of the large supply of trafficked ivory from

60 Record 7 ¶19.

61 Id.

62 C.B.D., supra note 56, Preamble.

63 C.B.D., supra note 56, art. 2.

64 C.B.D., supra note 56, art. 10.

65 Id.

66 Record 7 ¶18.

67 Record 7 ¶22.


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Ambassador Cusi and Barnum Uritovsky. Rincossi has also been involved in the public

destruction of several tons of illegal ivory.68 Hence, Rincossi is not in violation of its

obligation to sustainably use its biological resources.

c. Rincossi has implemented necessary legislation and regulatory provisions

for the protection of threatened species.

Rincossi enacted the Rincossi Flora and Fauna Trafficking Act,69 which prohibited any trade

in violation of CITES, and further amended its provisions to strengthen the Act.70 Rincossi

has further made numerous confiscations of illegal ivory,71 and in 2013, has publicly

destroyed several tons of illegal ivory,72 so as to ensure that it sends the necessary deterrent

message and to help educate the public. Therefore, it is submitted that Rincossi has fulfilled

its obligations to enact legislation and regulatory provisions to ensure the protection of

threatened species and has not violated its obligations under CBD or any other international

conferences.

iv. Rincossi has not breached its duty to protect migratory species as per the

CMS.

As a State-party to CMS,73 Rincossi must ‘endeavour to conclude agreements’ to protect

animals listed in Appendix II,74 which includes the Thornon elephant.75This is the primary

68 Id.

69 Record 7 ¶18.

70 Record 7 ¶21.

71 Record 7 ¶22.

72 Id.

73 Convention on Migratory Species, Jun. 23, 1979, 1651 U.N.T.S. 333 [hereinafter C.M.S.].

74 Id. art. 4.

75 Record 5 ¶9.


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obligation which is imposed on state parties.76 There is no evidence of any deviation from

this obligation by Rincossi.

Further, the fundamental objective of the CMS is to protect migratory species,77 which

includes the Thornon elephant. Rincossi, by its actions of enacting the Rincossi Flora and

Fauna Trafficking Act,78 making amendments to it,79 performing effective investigations and

confiscations,80 and by destroying illicitly trafficked elephant ivory,81 has ensured that it has

taken adequate measures to protect the Thornon elephant. Hence, Rincossi’s acts are not in

violation of the fundamental objective of the Convention. Therefore, Rincossi has fulfilled its

obligations under the CMS.

v. Rincossi is not in violation of its obligations under the UNCAC.

The UNCAC82 imposes obligations on the member States to abide by global anti-corruption

standards.83 Rincossi, by failing to prosecute Ambassador Cusi and members of Barnum

Uritovsky, and by refusing to return the confiscated ivory, is not in violation of their

obligations under the UNCAC.

76 Elizabeth A. Baldwin, Twenty-Five Years under The Convention On Migratory Species: Migration

Conservation Lessons From Europe, 41 Envtl. L. 535, 537 (2011).

77 C.M.S., supra note 72, Preamble.

78 Record 7 ¶18.

79 Record 7 ¶21.

80Record 8¶26.

81 Record 7 ¶22.

82 United Nations Convention against Corruption, Dec. 9, 2003, 43 I.L.M. 37, 2349 U.N.T.S. 41 [hereinafter

U.N.C.A.C.].

83 Ophelie Brunelle-Quraish, Assessing the Relevancy and Efficacy of the United Nations Convention Against

Corruption, 2 Notre Dame J. Int'l & Comp. L. 101, 107 (2011).


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a. Rincossi, by not prosecuting Cusi and members of Barnum Uritvosky is not

in violation of its obligations under the Convention.

The UNCAC mandates parties to maintain an appropriate balance between immunities

awarded to its public officials and effectively prosecuting and adjudicating offences under the

Convention.84 This balance was maintained as Rincossi officials duly notified Aliyan officials

to launch a joint investigation as soon as it was discovered that Cusi had illicitly trafficked

Thornon elephant ivory.85 The act of not prosecuting Ambassador Cusi was in line with her

diplomatic status as an ambassador, and being the Head of the Mission in the receiving

state,86and hence, Rincossi is not in violation of this obligation.

Further, the UNCAC mandates that any offence should be made liable to sanctions that take

into account the gravity of the offence.87 The severity of the punishment for the offences

established in accordance with the Convention is left to the States parties, but they must take

into account the gravity of the offence.88 The primacy of national law in this respect is

affirmed by Art. 30(9), which provides that all offences under this Convention shall be

prosecuted and punished in accordance with the domestic law.89

Art. 30(7) provides that State parties should provide measures to disqualify any person,

holding a public office, convicted of any offence under the Convention from that public

84 U.N.C.A.C., supra note 81, art. 30(2).

85 Record 7 ¶23.

86 V.C.D.R., supra note 8, art. 14(a).


88 United Nations Office on Drugs and Crime, Technical Guide to U.N.C.A.C. 83 (Nov. 17, 2015),

https://www.unodc.org/documents/corruption/Technical_Guide_UNCAC.pdf [hereinafter Technical Guide].



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office, to the extent consistent with the fundamental principles of its legal system.90 The legal

system of Rincossi renders a significant status to its public officials, and hence, Rincossi did

not remove Ambassador Cusi from her post considering her diplomatic status.91 Hence, this is

not in violation of its obligation under this provision.

The Convention provides that State parties must endeavor to ensure that the grave nature of

the offence and the need to deter its commission is taken into account in prosecution,

adjudication and correctional practices and decisions.92 Rincossi, has fulfilled this

requirement by deciding to confiscate the ivory, giving Ambassador Cusi and members of

Barnum Uritovsky a written warning and by closely monitoring their activities.93 Hence,

Rincossi is not in violation of this obligation. Further, even if Rincossi’s actions were

construed to violate this requirement, this is a non-mandatory obligation of the Convention,94

and hence will not amount to a violation of any international law obligations.

Further, The Convention recognizes ‘non-intervention in the domestic affairs of other States’

as a principle to be followed while carrying out its obligations under the Convention.95 The

request made by Aliya to prosecute Ambassador Cusi and members of Barnum Uritovsky

was refused by Rincossi, and this act in itself is not in violation of its obligations under the

Convention, keeping in mind the principle of non-intervention of domestic affairs.

90 Id. art. 30(7).

91 Clarification 21.

92 Technical Guide to U.N.C.A.C., supra note 87, at 131.

93 Record 9 ¶28.


95 U.N.C.A.C., supra note 81, art. 4.


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b. Rincossi is not in violation of the Convention by refusing to return the

confiscated ivory.

The Convention requires that priority consideration be given to returning confiscated

property to the requesting State party.96 This provision does not mandate the return of

confiscated property, and hence the act of refusing to return the confiscated ivory is not in

violation of the Convention. Further, the act of refusing to return the ivory is in consonance

with the objective of the Convention to promote and strengthen measures to prevent and

combat corruption more efficiently and effectively.97 The return of the confiscated ivory

would just fuel the illegal domestic ivory market in Aliya, and hence the refusal to return the

confiscated proceeds is in consonance with the obligations under the Convention. Hence,

Rincossi is not in violation of its obligations under the Convention or any other international

conferences.

vi. Rincossi is not in violation of its obligations under the UNTOC.

a. Rincossi, by not prosecuting Ambassador Cusi and members of Barnum

Uritovsky is not in violation of its obligations under the Convention.

The UNTOC mandates that any offence should be made liable to sanctions that take into

account the gravity of the offence.98 The penalties provided for similar crimes in various

jurisdictions diverge significantly, reflecting different national traditions, priorities and

96 Id. art. 57(3)(c).

97 Id. art. 1.

98 United Nations Convention Against Transnational Organized Crime, art. 11(1), Nov. 15, 2000, 40 I.L.M. 335,

U.N. Doc. A/55/383 [hereinafter U.N.T.O.C.].


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policies.99 Hence, penalties for crimes under domestic law are left to the discretion of the

national drafters.100 Therefore, the act of not prosecuting Ambassador Cusi and members of

Barnum Uritovsky were in consonance with the discretion provided to the States, and is thus,

not in violation of its obligations under the Convention.

The Convention further requires that States should endeavor to ensure that the discretionary

legal power under its domestic law needs to be exercised to maximize the effectiveness of

law enforcement and with regard to the need to deter the commission of such offences.101

This is a non-mandatory obligation, and even if Rincossi was bound by this obligation, the

actions of Rincossi are in consonance with the obligations of this provision, and hence, the

Convention.

The Convention recognizes ‘non-intervention in the domestic affairs of other States’ as a

principle to be followed while carrying out its obligations under the Convention.102 The

request made by Aliya to prosecute Ambassador Cusi and members of Barnum Uritvosky

was refused by Rincossi, and this act in itself is not in violation of its obligations under the

Convention, keeping in mind the principle of non-intervention in domestic affairs.

b. Rincossi is not in violation of its international obligations by refusing to

return the confiscated ivory.

99 United Nations Office On Drugs And Crime, Legislative Guides For The Implementation Of The United

Nations Convention Against Transnational Organized Crime And The Protocol Thereto 130 (Nov. 17, 2015),

https://www.unodc.org/pdf/crime/legislative_guides/Legislative%20guides_Full%20version.pdf.

100 Id. at 133.

101 U.N.T.O.C., supra note 97, art. 11(2).

102 Id. art. 4.


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The Convention requires, but does not mandate, that priority consideration be given to

returning confiscated property to the requesting State party.103 Further, the act of refusing to

return the ivory is in consonance with the objective of the Convention to promote and

strengthen measures to prevent and combat transnational organized crime more efficiently

and effectively.104 The return of the confiscated ivory would further fuel the illegal domestic

ivory market in Aliya, and hence the refusal to return the confiscated proceeds is in

consonance with the obligations under the Convention.

B. Rincossi is not in violation of Customary International Law.

Rincossi’s acts of not prosecuting Cusi and members of Barnum Uritovsky, and the refusal to

return the confiscated ivory is not in violation of customary international law. Legally

binding CIL obligations are created through two compulsory elements: state practice – the

‘rule of consistent and uniform usage’ and opinio juris – a showing that states actions stem

from the belief that such practice is required by law.105

i. Rincossi is not in violation of customary international law by not prosecuting

Ambassador Cusi and members of Barnum Uritovsky.

While customary law can arise from conventions that were not originally binding, the

provisions at issue must be generally and consistently applied by states from a sense of legal

obligation.106 Even considered broadly, protection of endangered species is not a requirement

of customary law due to the limited implementation of environmental conventions and the

103 Id. art. 14(2).

104 Id. art. 1.

105 Lal Kurukulasuriya & Nicholas Robinson, Training Manual on International Environmental Law (Nov. 17,

2015), http://www.iucnael.org/online-resources/unep-training-manual.html.

106 Patricia Birnie et al., International Law and the Environment 607 (3d ed. 2009).


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fact that many states still exploit most species.107 Although it can be agreed that the

prohibition on the illegal trade of ivory can be considered customary international law, the act

of prosecuting and arresting every perpetrator of illegal trade in ivory cannot be considered a

customary practice. There have been many instances of not prosecuting instances of illegal

wildlife trade, like Japan, where there have been no prosecutions at all.108 Therefore, the first

requirement of state practice is not fulfilled by such instances.

Considering that these States, by not prosecuting every instance of illegal ivory trade, are not

violating any of its treaty obligations suggests that such a prohibition is merely discretionary

and has not reached the level of customary international law. These are no mandatory treaty

obligations to prosecute every instance of illicit ivory trade, as discussed above, which

renders these obligations to not fulfill the second requisite of opinion juris. If a practice is

regarded as discretionary . . . rather than obligatory, it is an example of usage that does not

possess the critical element of opinio juris and therefore is not considered customary law.109

The absence of a uniform method of criminal prosecution,110 evidences a clear lack of

obligation. Hence, the second requirement of opinio juris is also not met. Therefore, the act

of not prosecuting Ambassador Cusi and members of Barnum Uritovsky does not violate

customary international law.

ii. Rincossi is not in violation of customary international law by refusing to

return the confiscated ivory.

107 Id.

108 E.I.A., The Enforcement Imperative: Combating the Illegal Trade in Ivory, Environmental Investigation

Agency (Nov. 17, 2015), https://eia-international.org/wp-content/uploads/The-Enforcement-Imperative-Low-

Res1.pdf.

109 Lakshman Guruswamy, International Environmental Law in a Nutshell 16 (4th ed. 1997).



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Further, Rincossi’s act of refusing to return the confiscated ivory is in consonance with the

principles of customary international law. There have been many instances of countries

destroying stockpiles of confiscated ivory.111 Other countries from the continent of Rabab

have also held similar public events to destroy illegal ivory.112 These instances fulfill the first

requirement of state practice. And, as discussed above, the destruction of ivory is considered

to be better suited to fulfill the objectives of the Conventions protecting endangered species,

evidences opinion juris. Therefore, Rincossi will not be in violation of customary

international law by destroying the confiscated ivory.

iii. Rincossi’s actions comport with Principle 21 of the Stockholm Declaration.

The actions of Rincossi are governed by Principle 21 of the Stockholm Declaration, are

cognized CIL.113 Principle 21 establishes that States have “the sovereign right to exploit their

own resources pursuant to their own environmental policies, and the responsibility to ensure

that activities within their jurisdiction . . . do not cause damage to the environment of other

states or of areas beyond the limits of national jurisdiction.”114 These intertwined concepts of

sovereignty and responsibility not to cause environmental damage are widely-regarded as the

under pinning of international environmental law.115 Rincossi comports with both aspects of

Principle 21 by asserting its sovereign right to determine its national environmental policies

111 Laurel Neme, Destroying Elephant Ivory Stockpiles: No Easy Matter (Nov. 17, 2015),

http://voices.nationalgeographic.com/2013/08/02/destroying-elephant-ivory-stockpiles-no-easy-matter/.

112 Record 7 ¶22.

113 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), I.C.J. 226 (1996); Stockholm

Declaration on the Human Environment, Pr. 21, U.N.Doc. A/CONF.48/14/Rev.1 (1973).

114 Id. Pr. 21.

115 Guruswamy, supra note 108, at 23.


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and by refusing to return the confiscated ivory, which has not impacted the population of

Thornon elephants in Aliya.

iv. Rincossi is not in violation of the Precautionary Principle.

The precautionary principle holds that nations should proceed slowly in the face of

uncertainty, constantly testing and monitoring the effects of their activities relating to the

environment.116The protection of the Thornon elephant had become a pressing issue.117

Rincossi had taken adequate precautionary measures to protect the Thornon elephant by

enacting the Rincossi Flora and Fauna Trafficking Act, making amendments to strengthen the

legislation118 and by effectively confiscating and destroying illegally trafficked elephant

ivory.119 Hence, Rincossi had fulfilled its obligation under the precautionary principle.

116 David Caron & Harry Scheiber, Bringing New Law To Ocean Waters 359 (2004).

117 Record 7 ¶21.

118 Record 7 ¶18.

119 Record 8 ¶26.


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CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, considering the foregoing submissions, the Republic of Rincossi most

respectfully requests the Honorable International Court of Justice to adjudge and declare that:

1. The Republic of Rincossi did not violate International Law; and

2. The Republic of Rincossi does not have any international legal obligation to return the

confiscated ivory to Aliya.

Respectfully submitted,

X

AGENTS OF RESPONDENT

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