THE INTERNATIONAL COURT OF JUSTICE THE HAGUE, THE NETHERLANDS CASE CONCERNING SANGALA JOSHEN PACT 1999 AND RELATED ISSUES STATE OF SANGALA

Transcription

1 TEAM CODE: 213 THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS 2 ND VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES INTERNATIONAL LAW MOOT COURT COMPETITION 2014 CASE CONCERNING SANGALA JOSHEN PACT 1999 AND RELATED ISSUES STATE OF SANGALA (APPLICANT STATE) V. STATE OF JOSHEN (RESPONDENT STATE) SUBMITTED IN THE REGISTRY OF THE COURT MEMORIAL FOR THE RESPONDENT 2 ND VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES INTERNATIONAL LAW MOOT COURT COMPETITION 2014

2 TABLE OF CONTENTS TABLE OF CONTENTS LIST OF ABBREVIATIONS IV INDEX OF AUTHORITIES V STATEMENT OF JURISDICTION XI STATEMENT OF FACTS XII QUESTIONS PRESENTED XIV SUMMARY OF PLEADINGS XV PLEADINGS I. THE RAPID INDUSTRIALIZATION IN SANGALA LED TO TRANS-BOUNDARY POLLUTION IN JOSHEN AND THEREFORE JOSHEN IS ENTITLED TO SEEK COMPENSATION FROM SANGALA FOR CAUSING DAMAGE TO THE ECONOMY A. Sangala has breached international obligations Breach of Bilateral Treaty Obligation by Sangala Sangala has breached general principles of international law a. Precautionary principle is violated b. Sangala has failed to undertake holistic EIA B. Joshen is entitled to seek compensation from Sangala for causing damage to the economy Sangala is liable to compensate under Customary International Law Thayri Declaration provides for relief to the injured state I

3 TABLE OF CONTENTS II. SANGALA HAS VIOLATED THE SANGALA JOSHEN PACT 1999 BY DOING INTERVENTION IN JOSHEN AND THEREFORE THE PACT SHOULD BE DISCONTINUED WITHOUT AWARDING ANY COMPENSATION TO SANGALA A. The interference of Sangala in Joshen s internal affairs violated the sovereignty and integrity of Joshen Sangala s support to DFA by extending help of warplanes and ammunitions constitutes illegitimate intervention Internal aggression in Joshen is domestic in nature and entails no International Obligation B. Sangala s intervention in Joshen violates the unique interests of Joshen as per Article 6 of the Sangala - Joshen Pact Declaration of Joshen being unsafe for Travellers from United Nations hampered Joshen s income from tourism Violation of the pact on part of Sangala leads to its revocation on behalf of Joshen and is entitled for compensation C. Attack on steel industries was a consequence of intervention by Sangala. Thus, Sangala cannot ask for compensation III. THE RESERVATION TO ARTICLE 1 AND 23 ARE COMPATIBLE TO ICCPR ARE AND ARE VALID A. Reservation to article 1 of ICCPR is a permissible reservation Claim of Permanent Sovereignty over natural resources by Joshen is valid 15 B. Reservation to article 23 of ICCPR is a permissible reservation II

4 TABLE OF CONTENTS 1. The principle lesser the population, less pollution in the environment is valid in order to fulfill International Obligation Joshen has the obligation to protect ecology and environment - 17 C. Right to development is a non-binding human right IV. ARRIVAL OF MIGRANTS INTO SANGALA IS NOT A VIOLATION OF INTERNATIONAL LAW AND THEREFORE JOSHEN IS NOT ENTITLED TO COMPENSATE SANGALA FOR THE SAME A. Citizens of Joshen who migrated to Sangala are not refugees Sangala is responsible for igniting internal aggression in Joshen Grant of asylum by Sangala to 11,000 citizens casts obligation for their protection on Sangala Sangala is bound by the Principle of Non-Refoulement B. Sealing of Sajo Border by Sangala is in contravention of the International Law Sangala cannot deny asylum to the migrants of Joshen That migrants of Joshen are entitled to remedies from Sangala That Joshen is under no obligation to pay compensation to Sangala for economically burdening by producing migrants PRAYER FOR RELIEF III

5 LIST OF ABBREVIATIONS LIST OF ABBREVIATIONS Section Paragraph GATT General Agreement on Tariffs and Trade ICCPR International Covenant on Civil and Political Rights ICJ International court of Justice ILC International Law Commission ILR International Law Review Intl International OECD Organization for Economic Cooperation and Development PCIJ Permanent Court Of international Arbitration PSONR Permanent Sovereignty on Natural Resources Res Resolution RTD Right to Development U.N.G.A United Nations General Assembly UDHR Universal Declaration of Human Rights UN United Nations WTO World Trade Organization 2 ND VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES INTERNATIONAL LAW MOOT COURT COMPETITION 2014 IV

6 INDEX OF AUTHORITIES INDEX OF AUTHORITIES SR. NO. UN DOCUMENTS AND RESOLUTIONS 1. "2005 World Summit Outcome". United Nations General Assembly, Sixtieth session, items 48 and 121 of the provisional agenda. A/60/L.1, 40 pages. Retrieved Barboza, 5 th Report on International Liability, UN Doc.A/CN.4/423 (1989) Concerted Action for Economic Development of Less developed Countries, (1960) UNGARsn 44; A/RES/1515 (XV) (15 th December 1960) 4. Declaration of the United Nations Conference on the Human Environment, Stockholm, Principle 21, UN Doc. A/CONF.48/14/Rev.1 (1973) 5. Declaration on Territorial Asylum adopted by the United Nations General Assembly on 14 th December Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, G.A. Res (XX), 1, U.N. Doc. A/RES/36/103 (Dec. 21, 1965) 7. Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation Among States, G.A. Res (XXV), Annex, U.N. Doc. A/8082 (Oct. 24, 1970) 8. Declaration on the right to development adopted by UN General Assembly resolution 41/120 of December Draft Articles on International Liability, Article 11, UN Doc.A/CN.4/428 (1990) 10. Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. Doc. A/56/10; GAOR, 56 th Sess., Supp. No. 10 (2001) PAGE NO , , , 7, 8, General Comments Adopted by the Human Rights Committee, U.N. Doc. 21 V

7 INDEX OF AUTHORITIES HRI/GEN/1/Rev.6 at 124 (2003) 12. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N., U.N. Doc. A/6316 (1966), 999 U.N.T.S U.N.G.A., 1992 Rio Declaration on Environment and Development, Annex I, U.N.Doc. A/CONF.151/26 (Vol. I) (June 13-14, 1992) 14. Standing Committee, Progress Report on Informal Consultations on the Provision of International Protection to All Who Need It, UN Doc. EC/47/SC/CRP.27, 30 May The General Assembly, Permanent Sovereignty over Natural Resources, G.A. res (XVII), 17 U.N. GAOR Supp. (No.17) at 15, U.N. Doc. A/5217 (1962) 16. United Nations, Charter of the United Nations, 24 th October 1945, 1 UNTS XVI 17. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 ( , 16, 21 4, 5, , 9, 14 20, 22 JUDICIAL DECISIONS 18. Advisory opinion on the Legal Consequences for States of the Continued 3 Presence of South Africa in Namibia, ICJ Rep (1971) p Armed Activities in the Territory of the Congo (Dem. Rep. Congo v. 10, 16 Uganda), 2005 I.C.J. 1 (Dec. 19) 20. Belgium v. Netherlands 27 U.N. Rep. Int l Arbitral Awards 35, 59 (May 4 24, 2005) 21. BP Exploration Co (Libya) Ltd v Government of the Libyan Arab 3 Republic, (1974), ILR, 53, pp 297, Corfu Channel case (United Kingdom v. Albania) ICJ Reports, 1949, pp. 4, 22; 16 AD, pp. 155, 158 3,5, 6, 7, Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, , 4 I.C.J. 7, 57 (Sept. 25) 24. Germany v. Poland, 1 R.I.A.A. 401, 425 (July 10, Island of Palmas Case (Netherlands v United States of America) (1928) 2 5 VI

8 INDEX OF AUTHORITIES Rep Intl Arbitral Awards Italy v. France, 1938 P.C.I.J. (ser. A/B) No. 74, at 28 (June 14, 1938) Neer claims case 4 RIAA, pp. 60, 61-2 (1926); 3 AD, p Nicaragua v. Unites States of America, Merits, Judgment, 1986 I.C.J. 14, (June 27) 29. North Sea Continental Shelf Cases, Judgment, 1969 I.C.J. 3, at 38 39, 1 63 (Feb. 20) 30. S.S. Wimbledon, 29-30; Greco-Bulgarian Communities, Advisory 6 Opinion, 1930 P.C.I.J. (ser. B) No. 17, at 32 (July 31) 31. Texaco Overseas Petroleum Co v Government of the Libyan Arab 15 Republic, Ad-hoc award of January 19, The Asylum Case (Columbia v. Peru); ICJ Reports, 1950, pp ; ILR, p The Chattin case, 4 RIAA, p. 282 (1927) 4 AD, p The S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10, at 18 9 (Sept. 7) 35. Train Smelter Arbitration (US. V Canada )33 AJIL (1939), 182 and 35 3 AJIL (1941), United States Diplomatic and Consular Staff in Tehran (United States of 6 America v. Iran), Judgment, 1980 I.C.J. 3 (May 24) 37. Velásquez Rodríguez v. Honduras, Merits, Inter-Am. Ct. H. R. (ser. C) No. 4, 170 (July 29, 1988) 7 BOOKS, DIGESTS AND TREATISES 38. A. SHEARER, STARKE S INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS, (11 TH ed.) ELIHU LAUTERPACHT AND DANIEL BETHLEHEM, THE SCOPE AND 18, CONTENT OF THE PRINCIPLE OF NON-REFOULEMENT: OPINION, IN REFUGEE PROTECTION IN INTERNATIONAL LAW; UNHCR GLOBAL CONSULTATIONS ON INTERNATIONAL PROTECTION, 87, GSDRC (2013). International legal frameworks for humanitarian action: 12 VII

9 INDEX OF AUTHORITIES Topic guide. Birmingham, UK: GSDRC, University of Birmingham 41. MALCOLM SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, 8, 14, (6 TH ed.) , 17, OPPENHEIM, INTERNATIONAL LAW (9 TH ed. 1996) 5, 8, PATRICIA BIRNIE ALAN BOYLE, INTERNATIONAL LAW AND THE 3, 5 ENVIRONMENT, OXFORD UNIVERSITY PRESS, (2 nd ed.) 44. PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF INTERNATIONAL 5 ENVIRONMENTAL LAW 42 (3 rd ed. 2012) 45. PROF. S.C. SHASTRI, ENVIRONMENTAL LAW, EASTERN BOOK COMPANY, 17 (4 TH ed.) 46. R.C. HINGORANI, HUMANITARIAN LAW, (1987) State Responsibility and the Marine Environment (Oxford, 1988), 72ff.; 3 Quentin-Baxter 48. The First systematic treatise on Hindu Law, Manusmriti, XI, 64, 65; IV, V. BEVAN, THE DEVELOPMENT OF BRITISH IMMIGRATION LAW, (1986) 18 TREATIES AND OFFICIAL DOCUMENTS 50. Additional Protocol to the American Convention on Human Rights, Conclusion No. 22 (XXXII), 1 981, GOODWIN-GILL, THE REFUGEE 20 IN INTERNATIONAL LAW, (2 nd Edition, 1996). 52. Convention on Biological Diversity, entered into force Dec. 29, 1993, U.N.T.S. 79, ( C.B.D. ). 53. Convention on the Elimination of All Forms of Racial Discrimination, Convention relating to the Status of Refugees, , Draft articles on Prevention of Transboundary Harm from Hazardous 6 Activities with commentaries International Law Commission s Draft Declaration on Rights and Duties of States YBILC (1949) 11 VIII

10 INDEX OF AUTHORITIES 57. Reports of the 51 st Conference of the International Law Association, 18 Tokyo (1964) 58. Rome Statute of International Criminal Court, United Nations Treaty 11 Collection, A/CONF.183/9 59. Statute of the International Court of Justice, June 26, Vienna Conventions on the Law of Treaties , 13 ARTICLES AND JOURNALS 61. Aoiffe Duffy, Expulsion to Face Torture? Non-Refoulement in International Law, 2008, Oxford University Press Report of the International Commission on Intervention and State Sovereignty, December 2001, Responsibility to Protect Libya and the Responsibility to Protect, Dr. Simon Adams 64. Lenzerin, F., Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples, Texas International Law Journal, Vol. 42, 2006, p MISCELLANEOUS 65. Akehurst, Custom as a Source, p.10. This would also include omissions and silence by states 66. Environment Ministers of the 34 member States of the UN Economic Commission for Europe and the representative of the EC, adopted The Bergen Declaration on Sustainable Development, On May 16, 1990, 67. Note on Temporary Protection in a Broader Context, 1 January 1994, available at: [accessed 28 September 2014] 68. Organization for Economic Co-operation and Development (OECD) was the first international organization to develop an extensive strategy for dealing with Trans-boundary air pollution IX

11 INDEX OF AUTHORITIES 69. R Barnes, Property Rights and Natural Resources 121 (2009); Nico Schrijver, Natural Resources and Permanent Sovereignty, 7 E.P.I.L. 535 (2012) 70. The Right to Development where do we stand? State of the debate on right to development,; Friedrich ebert stiftung at p X

12 STATEMENT OF JURISDICTION STATEMENT OF JURISDICTION The State of Sangala ( Sangala ) and the State of Joshen ( Joshen ) have agreed to submit this dispute concerning Sangala Joshen Pact 1999 and related issues to the International Court of Justice pursuant to Article 40 1, paragraph 1 of the Statute of this Court and by virtue of a Special Agreement (Fact Sheet) signed in The Hague, The Netherlands, on November 7, 2014 and jointly notified to the Court on the same date. In accordance with Article 36, paragraph 1 of the Statute, the Court has jurisdiction to decide all matters referred to it for decision. Both parties shall accept the Court s decision as final and binding and execute it in good faith Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be indicated. 2. The Registrar shall forthwith communicate the application to all concerned. 3. He shall also notify the Members of the United Nations through the Secretary-General, and also any other states entitled to appear before the Court. XI

13 STATEMENT OF FACTS STATEMENT OF FACTS DESCRIPTION OF STATE PARTIES SANGALA: State of Sangala is a developing state having presidential form of government with high population density. It is a capitalist economy and is an industrialized nation. Ms. Parshoo, the president adopted earn and live as the main moto and believed that right to development is an inalienable right and signed Declaration on RTD, Steel industries of sangala became highly recognized all over the world. From 2000, Sangala started manufacturing warplanes. Iron for its steel and automobile industries was imported from Joshen. JOSHEN: State of Joshen is a least developed state, located at the northeast of Sangala. It is rich in its natural resources. Citizens did never oppose the policy of the King Mr. Baruawa IV. The Tribal population worshipped nature and thus preserved it. King Baruawa III participated in the Stockholm Conference and signed the PSONR, 1956 wherein he declared sovereign power over natural resources and kept it safe. King took reservation to Article 1 and 23 of ICCPR. King took active participation in environment related conferences and ratified environment protection treaties. Agriculture and tourism were the main sources of income as the king believed in nonindustrialization. THE SANGALA JOSHEN PACT 1999 The Sangala- Joshen Pact 1999 where Joshen agreed to supply iron ore for 20 years, and agreed that the supply shall not be stopped until May 2033.Sangala agreed that the payment shall be made in form of gold n advance. Both the states are expected to respect their unique interest. In case of violation, the award of compensation shall be mutually agreed by the parties, if not settled the parties may approach the ICJ, The Hague. TRANS-BOUNDARY POLLUTION In 2013, Ms. Parshoo was re-elected and encouraged competition in the market. Sangala was encouraging industries, as a result creating pollution in the state and in its neighboring states. The environment in Joshen was affected and as a result declined tourism, the main source of income. His Majesty, Mr. Baruawa IV put the issue of trans-boundary pollution and damage to environment before the world council on environment. A Thayri Declaration was adopted where XII

14 STATEMENT OF FACTS in trans-boundary pollution was treated as a serious violation of international obligation and protection of environment was common responsibility of all states. STAMPEDE AND HUMAN RIGHTS INTERVENTION DFA group was formed for representation s in front of King Baruawa in Joshen for opposing the policy of me young Joshen whereby the citizens between the ages of 18 to 60 could not leave the country Joshen for any reasons and organized a huge rally in front of King s palace, in order to disburse rally, King ordered its army to fire in the air in which people started running and huge stampede occurred. One thousand five hundred people died even though not a single individual was killed in the firing by the army. Ms. Parshoo realizing her responsibility of protecting human rights of citizens of Joshen extended help of war planes and ammunitions to the DFA group ATTACK ON STEEL INDUSTRIES His Majesty king Baruawa IV stopped all supply of iron ore to Sangala after coming to know about the support of Sangala to DFA group. King ordered its army to attack the steel industries and imposed his responsibility on General Mathuk. Sangala arrested and took General Mathuk into custody. ASYLUM SEEKERS AND SEALING OF SAJO BORDER Due to internal conflict, many citizens of Joshen, mostly the elderly citizens took asylum in Sangala. Sangala took this issue of Asylum Seekers to UN and WTO. UN declared Joshen as unsafe for travelers. More than 10,000 people took asylum in Sangala and adopted earn and live policy of Ms. Parshoo. Ms Parshoo ordered sealing of its territorial border, called as Sajo border stating that the influx of Asylum Seekers have disrupted their economy and forcefully repatriated the citizens of Joshen at the sajo border. EPILOUGE Sangala sought compensation from Joshen for the violation of Sangala-Joshen Pact and urged for continuance of the pact as Joshen had agreed for the same. Joshen denied the same and requested to release General Mathuk. With no agreements in sight, both states consented to submit the dispute to the ICJ with a special agreement signed on 7 th November XIII

15 STATEMENT OF ISSUES STATEMENT OF ISSUES The parties have placed before this Hon ble Court, the following Questions for its consideration: I. Whether the rapid Industrialization in Sangala led to Trans-boundary Pollution in Joshen, and Joshen therefore being entitled to seek compensation from Sangala for causing damage to the economy? II. Whether Sangala has violated the Sangala-Joshen Pact 1999 by doing intervention in Joshen and therefore the Pact should be discontinued without awarding any compensation to Sangala? III. Whether the Reservation to Article 1 and 23 taken by Joshen are compatible with ICCPR and are valid? IV. Whether arrival of migrants into Sangala is a violation of international law resulting in compensation to Joshen. XIV

16 SUMMARY OF PLEADINGS SUMMARY OF PLEADINGS I. THE RAPID INDUSTRIALIZATION IN SANGALA LED TO TRANS-BOUNDARY POLLUTION IN JOSHEN AND THEREFORE JOSHEN IS ENTITLED TO SEEK COMPENSATION FROM SANGALA FOR CAUSING DAMAGE TO THE ECONOMY. The acts and omissions of Sangala violate Article 6.1 of the Treaty are: firstly, failure to protect Joshen s unique interest i.e.; Protection of ecology and environment, secondly, affecting the tourism which is the main source of income for Joshen. The failure to comply with its treaty obligations constitutes an internationally wrongful act of Sangala which entails its international responsibility. The responsible State is under an obligation to make full compensation for the injury, which includes any material damage, caused by the internationally wrongful act under both Customary International Law and Thayri Declaration. II. SANGALA HAS VIOLATED THE SANGALA JOSHEN PACT 1999 BY DOING INTERVENTION IN JOSHEN AND THEREFORE THE PACT SHOULD BE DISCONTINUED WITHOUT AWARDING ANY COMPENSATION TO SANGALA. The interference of the Sangala in Joshen s internal affairs violated the sovereignty and integrity of Joshen. United Nations General Assembly resolutions expressly prohibit illegitimate intervention. The internal aggression in Joshen did not constitute violation of Human rights. Hence, there exists no responsibility to protect on part of Sangala to intervene in the territory of Joshen. Joshen is entitled to seek compensation for violation of unique interest mentioned in Sangala-Joshen Pact Also, the attack on steel industries was a consequence of intervention by Sangala, therefore, Joshen is not liable to compensate for the same. XV

17 SUMMARY OF PLEADINGS III. THE RESERVATION TO ARTICLE 1 AND 23 ARE COMPATIBLE TO ICCPR ARE AND ARE VALID. Reservation to article 1 of ICCPR is a permissible reservation as India has also taken a reservation to the same article. The claim of permanent sovereignty over natural resources is also valid by Joshen as Natural Resources Declaration is a part of customary international law. Reservation to article 23 of ICCPR is also a permissible reservation as countries like Bahrain, Israel, Kuwait, Algeria, Egypt, Saudi Arabia etc. have reserved the article 23 and have adopted not to be bound by convention in case of conflict with Shariah. The principle lesser the population, less pollution in the environment is a custom in Joshen and it has the obligation to protect ecology and environment. Also the claim of right to development being non- binding is completely valid as Declaration on Right to Development has not surpassed the state of soft law in nature, and does not have its legal binding. IV. ARRIVAL OF MIGRANTS INTO SANGALA IS NOT A VIOLATION OF INTERNATIONAL LAW AND THEREFORE JOSHEN IS NOT ENTITLED TO COMPENSATE SANGALA FOR THE SAME. Citizens of Joshen who migrated to Sangala are not refugees but Grant of asylum by Sangala to 11,000 citizens casts obligation for their protection on Sangala. Sangala is responsible for igniting internal aggression in Joshen by supplying warplanes and ammunitions to the DFA group in Joshen. Sealing of Sajo Border by Sangala is in contravention of the International Law and Sangala cannot deny asylum to the migrants of Joshen. The migrants of Joshen are entitled to remedies from Sangala. Also, Joshen is under no obligation to pay compensation to Sangala for economically burdening by producing migrants. XVI

18 PLEADINGS I. THE RAPID INDUSTRIALIZATION IN SANGALA LED TO TRANS-BOUNDARY POLLUTION IN JOSHEN AND THEREFORE JOSHEN IS ENTITLED TO SEEK COMPENSATION FROM SANGALA FOR CAUSING DAMAGE TO THE ECONOMY. It is humbly submitted that Trans-boundary pollution took place in Joshen as a consequence of increasing industrialization in Sangala thereby causing damage to the economy of Joshen and its neighbouring states. Environment in Joshen was affected as tourism and agriculture were the main sources of income and due to its declining; there was an increase in unemployment causing total internal disturbance in Joshen. A. Sangala has breached international obligations States are responsible to other States for their internationally wrongful acts. A State commits internationally wrongful act when conduct consisting of an act or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation owed by that State to the injured State or the international community Breach of Bilateral Treaty Obligation by Sangala Obligations may arise for a State by a treaty and by a rule of customary international law or by a treaty and a unilateral act. 3 A Treaty 4 was signed between contracting parties Sangala and Joshen whereby the continuous supply of iron ore was to be done by Joshen to Sangala for period of 20 years starting 2 Phosphates in Morocco (Italy v. France.), 1938 P.C.I.J. (ser. A/B) No. 74, at 28 (June 14, 1938) [hereinafter Phosphates in Morocco] 3 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. Unites States of America), Merits, Judgment, 1986 I.C.J. 14, 177 (June 27) [hereinafter Nicaragua]; See also North Sea Continental Shelf Cases, Judgment, 1969 I.C.J. 3, at 38 39, 63 (Feb. 20) [hereinafter North Sea Continental Shelf] 4 Sangala Joshen Pact ND VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES INTERNATIONAL LAW MOOT COURT COMPETITION

19 from May 2013 till May The payment was to be in form of gold and paid in advance at the beginning of each financial year. 6 OECD 7 defines Trans-boundary pollution as pollution that originates in one country but, by crossing the border through pathways of water or air, is able to cause damage to the environment in another country. Sangala while encouraging industrialization, emitted pollution in the state and its neighbouring state whereby Joshen s Environment was also affected by the same. The Tourism industry and agriculture which were the main source of income in Joshen also got affected. The unemployment increased in Joshen due to declining tourism and Joshen being a nonindustrialized nation, was unable to provide ample employment opportunities to its young generation which adversely affected its economy. Furthermore, same treaty states The both contracting parties Sangala and Joshen shall respect the each Party s unique interests, including, but not limited to, in the case of contracting party Sangala the protection of industries which is the icon of Sangala and in case of contracting party Joshen the protection of ecology and environment which is the icon of Joshen. 8 The acts and omissions of Sangala that violate Article 6.1 of the Treaty are: firstly, failure to protect Joshen s unique interest i.e.; Protection of ecology and environment, secondly, affecting the tourism which is the main source of income for Joshen. There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character. 9 5 Sangala Joshen Pact 1999, art Sangala Joshen Pact 1999, art Organization for Economic Co-operation and Development (OECD) was the first international organization to develop an extensive strategy for dealing with Trans-boundary air pollution 8 Sangala - Joshen Pact 1999, art Draft Articles on Responsibility of States for Internationally Wrongful Acts, Rep. of the Int l Law Comm n, 53 rd Sess., Apr. 23-June 1, July 2-Aug. 10, 2001, art. 12, U.N. Doc. A/56/10; GAOR, 56 th Sess., Supp. No. 10 (2001) [hereinafter ASR] 2

20 The failure to comply with its treaty obligations 10 constitutes an internationally wrongful act of Sangala which entails its international responsibility. 11 International Law does not allow states to conduct or permit activities within their territories, or in common spaces, without regard for rights of other states or for the protection of the environment. 12 In its Advisory opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia, The ICJ said that the rules laid down by the Vienna Convention on the Law of Treaties concerning termination of a treaty relationship on account of breach may in many respects be considered as a codification of existing customary law on the subject. 13 The court observed that General Assembly Resolution 2145 (XXI) had determined that a material breach of the mandate had occurred, and accordingly held that the resolution is therefore to be viewed as the exercise of the right to terminate a relationship in case of a deliberate and persistent violation of obligations which destroys the very object and purpose of that relationship. 14 In Train Smelter Arbitration 15, The tribunal awarded damages to the USA and prescribed a regime for controlling future emissions from a Canadian smelter which has caused air pollution damage. It concluded that no state has the right to use or permit to use of territory in such a manner as to cause injury by fumes in or to the territory of another, and that measures of control were necessary. 16 The ICJ reinforced this approach, by emphasizing in the Corfu Channel case Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. 7, 57 (Sept. 25) [hereinafter Gabčíkovo-Nagymaros Project] 11 Ibid 12 PATRICIA BIRNIE ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, OXFORD UNIVERSITY PRESS, (2 nd ed.) 13 ICJ Rep (1971), p 47. See also BP Exploration Co (Libya) Ltd v Government of the Libyan Arab Republic (1974), ILR, 53, pp 297, Ibid AJIL (1939), 182 and 35 AJIL (1941), 684. See Read, 1 CYIL (1963), 213; Rubin, 50 Oregon LR (1971), 259; Kirgis, 66 AJIL (1972); Smith, State Responsibility and the Marine Environment (Oxford, 1988), 72ff.; Quentin- Baxter AJIL, 1941, p. 716; 9 AD, p Canada invoked the Train Smelter principle against the United States when an oil spill at cherry point, Washington, resulted in contamination of beaches in British Columbia: See 11 Canadian YIL, 1973, p ICJ Reports, 1949, pp. 4, 22; 16 AD, pp. 155, 158 3

21 that it was the obligation of every state not to allow knowingly its territory to be used for acts contrary to the rights of other states. 2. Sangala has breached general principles of international law The maxim sic utere tuo, ut alienum non laedas or principle of good neighbourliness should be followed by the states as a general principle of international law. `The principle of Sustainable Development, which forms the basis of all environmental law, must be considered as an erga omnes obligation. 18 Principle 2 of Rio Declaration on Environment and Development of states that, States have in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national Principle 4 of the declaration adds that: in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. 20 These principles have been reiterated in several judicial decisions. 21 In the instant case, the act of industrialization resulted in significant Trans-boundary pollution in Joshen and neighbouring states as it is evident from the facts that Sangala was efficient in manufacturing automobiles, warplanes and Pharmaceutical products which indeed emits lot of chemicals and gaseous components in the due process which evidences Sangala s contribution towards disruption of ecology and protection of environment in Joshen and neighboring states. 18 Supra note U.N.G.A., 1992 Rio Declaration on Environment and Development, Annex I, U.N.Doc. A/CONF.151/26 (Vol. I) (June 13-14, 1992) [hereinafter Rio Declaration] 20 Ibid 21 Gabčíkovo-Nagymaros Project; See also Arbitration regarding the Iron Rhine ( Ijzeren Rijn ) Railway (Belgium v. Netherlands), 27 U.N. Rep. Int l Arbitral Awards 35, 59 (May 24, 2005); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 29 (July 8) [hereinafter Nuclear Weapons] 4

22 a. Precautionary Principle is violated In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. 22 The reason for this emphasis on prevention is that damage to the environment often cannot be repaired, 23 even if the causal link between the polluter and the damage may be established and evaluated. Principle 15 of Rio Declaration requires that a Precautionary approach shall be widely applied by the states according to their capabilities. The Precautionary approach is not limited to global environment concerns, but encompasses in addition both trans-boundary and domestic environmental harm. 24 States have, in accordance with the UN Charter and the principles of international law, the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States Article 3 of the CBD 26 reproduces verbatim Principle 21 of the Stockholm Declaration. A State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighboring state 27 control which is now a part of the corpus of international law relating to the environment. 28 Although the Stockholm Declaration is a non-binding text, this principle is rooted in decisions of international tribunals 29 as a part of customary international law. 30 Even though, the development of industries took place in Sangala, The pollution emitted by the industries has caused harm beyond its territory, in terms of the damage to the economy and environment of Joshen. Sangala failed to undertake appropriate measures and precautions which are required under the principles of international law. 22 On May 16, 1990, Environment Ministers of the 34 member States of the UN Economic Commission for Europe and the representative of the EC, adopted The Bergen Declaration on Sustainable Development 23 Rio Declaration, Principle PATRICIA BIRNIE ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, OXFORD UNIVERSITY PRESS, (2 nd ed.) 25 Declaration of the United Nations Conference on the Human Environment, Stockholm, Principle 21, UN Doc. A/CONF.48/14/Rev.1 (1973) 26 Convention on Biological Diversity, entered into force Dec. 29, 1993, 1760 U.N.T.S. 79, art.8 ( C.B.D. ) 27 OPPENHEIM, INTERNATIONAL LAW: A TREATISE 182, 127 (2 nd ed. 1912) 28 Nuclear Weapons, 29; Island of Palmas (U.S. v. The Netherlands), 2 R.I.A.A. 829 (Perm. Ct. Arb., 1928) 29 Trail Smelter (U.S. v. Canada), 3 R.I.A.A. 1905, 1965 (Mar. 11, 1941); Corfu Channel 30 PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 42 (3 rd ed. 2012) 5

23 b. Sangala has failed to undertake holistic EIA Subsequently, Sangala has failed to undertake the Environment Impact Assessment before setting up of the industries which is a general principle of international Law. An article on Trans-boundary EIA has also formed part of the long-standing work of the International Law Commission. 31 The 1991 UNECE Convention on EIA in a Trans-boundary context is the most comprehensive agreement on the subject. That conformity with the provisions of internal law in no way precludes conduct being characterized as internationally wrongful is equally well settled. 32 Facts are silent on the EIA undertaking to which it can be assumed that Sangala failed to undertake the EIA at International level. Insofar as Sangala did not take any positive steps to assess the same, inspire of knowing that Joshen is a non-industrialized nation and its main source of income is tourism and agriculture, the potential adverse effects of the pollution of Industrialization and take appropriate steps, constitutes inaction on their part. In the Corfu Channel case, ICJ held that it was a sufficient basis for Albanian responsibility that it knew, or must have known, of the presence of the mines in its territorial waters and did nothing to warn third States of their presence. 33 In the United States Diplomatic and Consular Staff in Tehran 34 case, the Court concluded that the responsibility of the Islamic Republic of Iran was entailed by the inaction of its authorities 31 Draft Convention on the Prevention of Trans-boundary Harm, Article 7 and Commentary, supra, n.6. For earlier drafts see Barboza, 5 th Report on International Liability, UN Doc.A/CN.4/423 (1989) ; Draft Articles on International Liability, Article 11, UN Doc.A/CN.4/428 (1990); Draft Articles on International Liability, Article 10, UN Doc. A/CN.4/L.5333 (1996) 32 S.S. Wimbledon, 29-30; Greco-Bulgarian Communities, Advisory Opinion, 1930 P.C.I.J. (ser. B) No. 17, at 32 (July 31); Free Zones of Upper Savoy and the District of Gex (Second Phase), 1930 P.C.I.J. (ser. A) No. 24, at 12 (Dec. 6); Free Zones of Upper Savoy and the District of Gex, Judgment, 1932 P.C.I.J. (ser. A/B) No. 46, at 167 (June 7); Treatment of Polish Nationals, 24; Exchange of Greek and Turkish Populations, Advisory Opinion, 1925 P.C.I.J. (ser. B) No. 10, at 20 (Feb. 21); Jurisdiction of the Courts of Danzig, Advisory Opinion, 1928 P.C.I.J. (ser. B) No. 15, at (Mar. 3). See also Acquisition of Polish Nationality, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7, at 26 (Observations of Lord Finlay) 33 Corfu Channel, United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, 1980 I.C.J. 3 (May 24) 6

24 which failed to take appropriate steps, in circumstances where such steps were evidently called for. 35 Sangala consequently, violated Thayri Declaration adopted by Sangala, Joshen and neighboring states which recommended that if the state is responsible for the failure to control environmental damage or harm to the other states, then that state will be held liable to pay appropriate remedy for the same. 36 Thus, in the instant case, Sangala s conduct is a combination of an action and an omission which is the basis for responsibility. Therefore, it is humbly submitted that in evidence of the cited authorities, Joshen is liable to get appropriate compensation for the same. B. Joshen is entitled to seek compensation from Sangala for causing damage to the economy. In Trail Smelter, 37 the tribunal held Canada strictly liable for injuries within the United States caused by the trans-boundary pollution of a smelter operating within Canadian territory. This Court, in Corfu Channel, recognized this principle by holding Albania responsible for damages occurring within territory under Albania s control Sangala is liable to compensate under Customary International Law Under customary international law, a State s responsibility is invoked when conduct attributable to the State under international law... constitutes a breach of an international obligation of the state. 39 Here, the emission of toxic gaseous components is attributable to Sangala because the manufacturing industries were carrying on operation under the sangala s jurisdiction. Therefore, Sangala is responsible for the resulting damages under the principle 35 Id. 63 & 67. See also Velásquez Rodríguez v. Honduras, Merits, Inter-Am. Ct. H. R. (ser. C) No. 4, 170 (July 29, 1988): under international law a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions ; The Acquisition of Polish nationality (Germany v. Poland), 1 R.I.A.A. 401, 425 (July 10, 1924) 36 Fact Sheet AJIL (1939), 182 and 35 AJIL (1941), Corfu Channel (U.K./Alb.), 1949 I.C.J. 4, 23 (Apr. 9) 39 Draft Articles on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int l L. Comm n 26,, U.N. DOC. A/56/49(Vol. I)/Corr.4; see also Chorzow Factory Case (Germany v. Poland), (Jurisdiction) 1927 P.C.I.J. (ser. A) No. 8, at 21 (July 26) 7

25 that the costs of pollution should be paid by the polluter. 40 Additionally, Principle 16 of the Rio Declaration affirmatively states, that the polluter should, in principle, bear the cost of pollution. 41 The state responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damages is not made good by restitution Thayri Declaration provides for relief to the injured state. Sangala is also liable to pay compensation under the Thayri Declaration which was adopted by Joshen and sangala along with other member states in which it was recommended; if the state is responsible for the failure to control environmental damage or harm to the other states, then that state will be held liable to pay appropriate remedy for the same. 43 II. SANGALA HAS VIOLATED THE SANGALA-JOSHEN PACT 1999 BY DOING INTERVENTION IN JOSHEN AND THEREFORE THE PACT SHOULD BE DISCONTINUED WITHOUT AWARDING ANY COMPENSATION TO SANGALA. It is humbly submitted that support of Sangala to Development for All (hereinafter referred as DFA ) group in Joshen constitutes intervention on part of Sangala thereby violating the Sangala-Joshen Pact 1999 and entailing International Responsibility for wrongful act 44 coupled with compensation. A. The interference of Sangala in Joshen s internal affairs violated the sovereignty and integrity of Joshen. Intervention is a form of interference by one state in the affairs, internal or external, of another; and intervention may affect those affairs either directly or indirectly. 45 Since every 40 See eg. Sands, Principle, pp. 279 ff., and A. Boyle, Making the Polluter Pay? Alternatives to State Responsibility in the Allocation of Trans-boundary Environmental Costs in Francioni and Scovazzi, International Responsibility for environmental Harm, p MALCOLM N. SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS, (6 TH ed.) 2008, See Pg Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art Fact Sheet Draft Articles on Responsibility of States for Internationally Wrongful Acts 45 OPPENHEIM S INTERNATIONAL LAW, (9 TH ed. Volume 1). See pg 430 8

26 state has the right, as an attribute of its sovereignty and insofar as it is not qualified by treaty obligations, 46 to decide for itself such matters as its political, economic, social and cultural systems, and its foreign policy, interference in those matters can infringe its sovereignty. Thus, however much one state may dislike the particular ideology or political system adopted by another that does not legally permit it to intervene so as to bring about changes. 47 The theory of Sovereign equality of states is a well recognized principle of international law Sangala s support to DFA by extending help of warplanes and ammunitions constitutes illegitimate intervention. [T]he first and foremost restriction imposed by international law upon a State is that failing the existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of another State. 49 The principle of non-interference with a state s internal functions has become so essential to international relations that it has crystallized into customary international law. Under the Statute of the Court, custom is evidence of a general practice accepted as law. 50 In the Corfu channel 51 case, The ICJ observed that between independent states, respect for territorial sovereignty is an essential foundation of international relations. Diplomatic actions and treaties show the practice of non-interference. The injured state can invoke the responsibility of the attacking state for committing an internationally wrongful act. 52 Two United Nations General Assembly resolutions have expressly prohibited 46 In Military and Paramilitary Activities Case, ICJ Rep (1986), the ICJ stated the applicable principle in the following terms: A prohibited intervention must accordingly be one bearing on matters in which each state is permitted, by the principle of State sovereignty, to decide freely (ICJ Rep (1986), p 108) 47 Ibid, p Such principle is recognized by the Charter of the United Nations (adopted June , entered into force October ) 1 UNTS 16, Article 2(1); furthermore this principle is reaffirmed in the Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation Among States, G.A. Res (XXV), Annex, U.N. Doc. A/8082 (Oct. 24, 1970), annex, preamble 49 The S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10, at 18 (Sept. 7) 50 United Nations, Statute of the International Court of Justice, available at: 38(1)(b), June 26, 1945, [accessed 13 October 2014] 51 ICJ Rep (1949), p Draft articles on Responsibility of states for Internationally wrongful acts adopted on 2001, Part three, chapter 1, invocation of the responsibility of a state 9

27 intervention 53 and the basic parameters established by these actions and documents prohibit states from intervening in the internal affairs of any other State. Interpretations of the doctrine by this Court have included the prohibition against both direct and indirect intervention. 54 In Military and Paramilitary Activities Case 55, The ICJ held that support given by the United States of America to opposition forces in Nicaragua was unlawful. In the light of the court s judgment in that case it seems that action in support of opposition forces within another state may constitute intervention, even if the support itself is of a non-military kind; 56 if it has a military character but is limited to such indirect support as the supply of weapons or logistic support, it may constitute not only intervention but also an unlawful threat or use of force, but would not amount to armed attack; 57 and if it involves direct military action by the supporting state (whether on the part of its regular forces or through the dispatch of armed bands on a significant scale) 58 it is in addition likely to constitute an armed attack (so giving rise to the right of self-defense 59 on the part of the attacked state) and may well also constitute aggression. 60 Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other States. The supply of warplanes and ammunitions to the DFA group in Joshen by Sangala 61 constitutes illegitimate intervention because the circumstances prevailing at Joshen does not attract International responsibility to intervene in the sovereign territory of Joshen which is not a permissible intervention and does not fall under the ambit of Responsibility to protect. Sangala has violated the pact as the supply of iron ore has been used for manufacturing 53 Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation Among States, G.A. Res (XXV), Annex, U.N. Doc. A/8082 (Oct. 24, 1970); Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty, G.A. Res (XX), 1, U.N. Doc. A/RES/36/103 (Dec. 21, 1965) 54 See Armed Activities in the Territory of the Congo (Democratic Republic of Congo v. Uganda), 2005 I.C.J. 1 (Dec. 19); Military and Paramilitary Activities, 1986 I.C.J ICJ Rep (1986) 56 Eg financial support: ICJ Rep (1986), p-124. See generally n Ibid, pp 103-4, Ibid, pp See See 30, n Fact Sheet 15 10

28 warplanes to cause internal aggression and thereby to intervene in Joshen to extract Iron ore of which, Sangala would be able to fulfill its objective of Industrialization by deploying the same to manufacture steel and automobile industry. Article 3 of the International Law Commission s Draft Declaration on Rights and Duties of States categorically provides that every state has the duty to refrain from intervention in the internal or external affairs of any other state Internal aggression in Joshen is domestic in nature and entails no International Obligation. The Responsibility to protect is an emerging norm that sovereignty is not a right, but that states must protect their populations from mass atrocity crimes. Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings. 63 "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack, i.e.; Murder, Extermination, Enslavement, Deportation or forcible transfer of population etc. 64 To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be "part of a widespread or systematic attack directed against any civilian population". In the Neer claims case, 65 the commission stated that the treatment of an alien, in order to constitute an international delinquency, Should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of International standards that every reasonable and impartial man would readily recognize its insufficiency. 62 YBILC (1949),See pg Rome Statute of International Criminal Court, United Nations Treaty Collection, A/CONF.183/9 64 Ibid, Art RIAA, pp. 60, 61-2 (1926); 3 AD, p See similarly The Chattin case, 4 RIAA, p. 282 (1927) 4 AD, p

29 Military intervention for the purpose of protection of human rights can only be undertaken if it is apparent that a serious and irreparable harm is occurring or may occur to human beings in the following forms: (i) Large scale loss of life, with or without genocidal effect. (ii) Large scale of ethnic cleansing 66 The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. 67 Military intervention may only be carried out as a last resort, when all other, non-coercive measures have failed and when it is authorized by the Security Council. 68 Responsibility to protect is to extend the intervention beyond a purely military intervention and to encompass a whole continuum of obligations: 69 This norm has clearly laid down that military intervention should be the last resort and has to be authorized by the Security Council and cannot be undertaken by own discretion. 70 The intervention action that has been taken by Sangala is clearly in violation of the established international law and norms because, firstly there was no violation of human rights nor any crime against humanity was committed, secondly Sangala failed to take the permission of the Security Council and thirdly, Sangala extended the help of war planes and ammunitions to the DFA Group, which was against the government and hence causing disturbances in the society. B. Sangala s intervention in Joshen violates the unique interests of Joshen as per Article 6 of the Sangala-Joshen Pact Report of the International Commission on Intervention and State Sovereignty, December 2001, Responsibility to Protect. (Last retrieved on 05/08/2014) 67 "2005 World Summit Outcome". United Nations General Assembly, Sixtieth session, items 48 and 121 of the provisional agenda. A/60/L.1, 40 pages. Retrieved Dr. Simon Adams, Libya and the Responsibility to Protect, (Last retrieved on 016/08/2014) 69 GSDRC (2013), International legal frameworks for humanitarian action: Topic guide. Birmingham, UK: GSDRC, University of Birmingham 70 UN World Summit Document,