2 ND VIPS IMC 2014 MOOT PROBLEM

Transcription

1 2 ND VIPS IMC 2014 MOOT PROBLEM INTERNATIONAL COURT OF JUSTICE SPECIAL AGREEMENT BETWEEN THE STATE OF SANGALA (APPLICANT) AND THE STATE OF JOSHEN (RESPONDENT) TO SUBMIT TO THE INTERNATIONAL COURT OF JUSTICE THE DISPUTE BETWEEN THE PARTIES CONCERNING SANGALA-JOSHEN PACT 1999 AND RELATED ISSUES Jointly notified to the Court on 7 th November, 2014

2 JOINT NOTIFICATION ADDRESSED TO THE REGISTRAR OF THE COURT: The Hague, 7 November 2014 On behalf of the State of Sangala ( the Applicant ) and the State of Joshen ( the Respondent ), in accordance with Article 40(1) of the State of the International Court of Justice, we have the honour to present before you the original Special Agreement for submission to the International Court of Justice of the dispute between the Applicant and the Respondent concerning Sangala-Joshen Pact 1999 and related issues, signed in The Hague, The Netherlands, on the 7 November in the year two thousand fourteen. Ambassador of the State of Sangala to the the Kingdom of The Netherlands Ambassador of the State of Joshen to to the Kingdom of The Netherlands

3 SPECIAL AGREEMENT SUBMITTED TO THE INTERNATIONAL COURT OF JUSTICE BY THE STATE OF SANGALA AND THE STATE OF JOSHEN ON THE DISPUTE CONCERNING SANGALA- JOSHEN PACT 1999 AND RELATED ISSUES The State of Sangala and the State of Joshen, Considering that differences have arisen between them, concerning state responsibility to implement Sangala -Joshen Pact 1999 and related issues; Recognizing that the Parties concerned have been unable to settle the dispute by negotiation; Desiring further to define the issues to be submitted to the International Court of Justice (hereinafter the Court ) for settling this dispute; In furtherance thereof the Parties have concluded the following Special Agreement: Article 1 The Parties submit the questions contained in the Special Agreement (together with Corrections and Clarifications to follow) to the Court pursuant to Article 40(1) of the Court s Statute. Article 2 It is agreed by the Parties that State of Sangala shall act as Applicant and the State of Joshen as Respondent, but such agreement is without prejudice to any question of the burden of proof.

4 Article 3 (a) The Court is requested to decide the Case on the basis of the rules and principles of international law, including any applicable treaties. (b) The Court is also requested to determine the legal consequences, including the rights and obligations of the Parties, arising from its Judgment on the questions presented in the Case. Article 4 (a) Procedures shall be regulated in accordance with the applicable provisions of the Official Rules of the Second VIPS International Moot Court Competition. (b) The Parties request the Court to order that the written proceedings should consist of Memorials presented by each of the Parties not later than the date set forth in the Official Schedule of the Second VIPS International Moot Court Competition. Article 5 (a) The Parties shall accept the Judgment of the Court as final and binding and shall execute it in its entirety and in good faith. (b) Immediately after the transmission of any Judgment, the Parties shall enter into negotiations on the modalities for its execution. In witness whereof, the undersigned, being duly authorized, have signed the present Compromis and have affixed thereto their respective seals of office. Done in The Hague, The Netherlands, this 7th day of November in the year two thousand fourteen, in triplicate in the English language. Ambassador of the State of Sangala to the Kingdom of The Netherlands Ambassador of the State of Joshen to the Kingdom of The Netherlands

5 The Second VIPS International Moot Court Competition, 2014 The State of SANGALA (Applicant) Versus The State of JOSHEN. (Respondent) 1. Sangala and Joshen, both member states of United Nations, are sovereign nations. Both states respect International Law and its obligations. Both states, Sangala and Joshen, have signed and ratified Vienna Convention on Law of Treaties and International Covenant on Civil and Political Rights, 1966 in the year Sangala and Joshen are also the party to Geneva Conventions, Sangala, is a developing state having the Presidential form of government. It has a high population density due to small geographical area. Sixty five percent of the population is in between the age of 20 to 50 years. Sangala has capitalist economy and is an industrialized nation. In the year 1998, the people of Sangala elected Ms. Parshoo of Urban Population Party (UPP) as the President of the country and with her able guidance and governance, Sangala made its own identity amongst the international community. The main moto adopted by the President Ms Parshoo was earn and live. Ms Parshoo was a great promoter of right to development for all. According to her, right to development is an inalienable human right. She signed Declaration on the Right to Development 1986 in the year Recognising that the creation of conditions favourable to the development of citizens is the primary responsibility of the state, Ms Parshoo emphasized that State should

6 enter into international trade relations with other states and also became the member of World Trade Organisation (WTO) in the year Ms Parshoo gave special attention to its industries. She allocated a huge budget for industrial development. Its steel industry became a highly recognised industry all over the world. Apart from steel, Sangala became efficient in manufacturing automobiles. A large part of its population is engaged in industries. Sangala also started manufacturing warplanes from the year 2000 and a large investment was done for the same. Sangala got iron for its steel and automobile industry largely from Joshen. Eighty percent of iron was imported from state Joshen. Sangala was also efficient in its Pharmaceutical industry. In fact, it was known as World s Pharmacy. Ms Parshoo was also keenly interested in pharmaceutical industry and, also, adopted TRIPS domestically as well. Many research laboratories were developed for pharmaceutical research. Many patents were also registered. For this purpose, bio medicinal plants were imported from Joshen, some with consent and others without consent. 4. State Joshen, least developed state, is located at the northeast of Sangala. Joshen is rich in its natural resources. The citizens of Joshen were living average life and did not oppose any policy laid down by their King, Mr Baruawa IV. For its population, which is mainly tribal, ecology and environment are fundamental and non-negotiable. They worship nature and thus preserve it as well. Joshen was one of the rare states where one could see clear sky in the night in most part of the year. His Majesty, Baruawa and his ancestors remained committed to protect ecology and environment. In fact in 1974, the King Mr Barauwa III, father of Mr Barauwa IV participated in Stockholm Conference held on Human Environment. His father, in his tenure also signed Declaration on Permanent Sovereignty on Natural Resources, 1956, whereby he assert sovereign powers on natural resources and thus kept it safe from the possession or ownership of any kind of private bodies or individuals including its own

7 citizens. The same policy was adopted by the King Mr Barauwa IV. Considering the sensitivity involved in the protection of environment and wise use of natural resources, King Mr Baruawa IV retained exclusive ownership of natural resources and also profited from earning from the businesses related to natural resources. To make it possible, the King Mr Baruawa IV, took reservation to Article 1 of the ICCPR. In its Instrument of Accession by Joshen to the International Covenant on Civil and Political Rights 1983, it was stated that : a. With respect to Article 1 of the International Covenant on Civil and Political Rights, the King and its government of Joshen reserves its rights to apply its law and policies relating to ownership and possession of natural resources. 5. Further, in the leadership of King Mr Baruawa IV, Joshen participated actively in various conferences held for the cause of protection of environment and ratified environment protection related treaties for which he gained the admiration of the international community. 6. According to the King Baruawa IV, one of the keys to protect environment was less population. His Majesty, Baruawa IV was strict on population control policy. His principle was Lesser the population, less pollution in the environment in continuation of the principle believed and coming down from his ancestors. Therefore, people were required to take permission from the king before getting married and starting a family. To support this policy, the King had taken reservation to Article 23, ICCPR as well. In its Instrument of Accession by Joshen to the International Covenant on Civil and Political Rights 1983, it was stated that: With reference to Article 23 of the International Covenant on Civil and Political Rights, the King and its Government takes the position that the provisions of the

8 Article shall be so applied as to be in consonance with the policies relating to marriage and family adopted by the King and its Government. Further, under the Joshen Legal System there is no enforceable right to men and women of marriageable age to marry and to found a family. In reason given for actuating above reservation, it was stated that Joshen has obligation to protect ecology and environment created by ratifying environment related international conventions, and, large population would destroy the ecological balance of their state which would lead to violation of international obligation(s). 7. Non-industrialisation was another key to protect environment as per the King Mr Baruawa IV. On account of discouragement to the industrialisation agriculture and tourism were the main sources of income available in Joshen although Joshen was rich in its natural resources. The King and his family owned exclusively natural resources including iron. The King exported iron to many countries mainly Sangala. Profit from the export went into King s personal treasure as the King and his ancestors claimed permanent ownership over natural resources. The King did not share profit of the export of iron ore with its population as he considered its population as subjects of the state. 8. The tribes in the State of Joshen were illiterate but they had deep knowledge in flora and fauna. In fact, according to their understanding, their hospital was their nature and therefore they believed in and practiced naturopathy. Many citizens from State Sangala came to the State Joshen only to collect information regarding various plants usages and plants varieties.

9 9. In the year February, 2013, Ms Parshoo was re-elected as the President by the people with a huge margin for her fourth term. Ms Parshoo, believing in her principle of earn and live, reduced various domestic subsidies and encouraged competition in the market, policies pertaining to the industries, and self-employment. For smooth flow of natural resources mainly iron from Joshen, Ms Parshoo revised and extended the agreement with Joshen, called as Sangala-Joshen Pact Sangala started advance payment in the form of gold to Joshen for the supply of iron ore as per the revised pact, the salient features of which are annexed in Appendix A. 10. As Sangala was encouraging industries, pollution was increasing in the state and its neighbouring states. The environment in Joshen was also affected. The tourism industry, which was the main source of income in Joshen, also got affected. His Majesty, Mr. Baruawa put the issue of trans-boundary pollution and damage to environment before the World Conference on Environment held in the State of Thayri, in November Joshen shared to all participants present in the Conference that trans-boundary environmental damage occurred in Joshen due to industrialisation in state Sangala. It was also narrated that how Joshen s tourism has affected due to trans-boundary pollution. The participant states listened and showed concern for the same. On this, a Declaration called as Thayri Declaration was adopted in the conference that trans-boundary environmental damage should be considered as a serious violation of international obligation as protection of environment was the shared and common responsibility of all states. Further it was also 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.

10 11. Unemployment increased in Joshen due to lack of industries, as also due to declining tourism. Many citizens of Joshen favoured leaving country to settle outside, mainly in Sangala. In fact, the young generation developed an attraction for Sangala due to the employment opportunities available there. 12. The latest population survey of Joshen showed that 61 per cent of population was above the age of 65 years and 15 per cent population below 18 years. Rest of the population, which is between 18 to 55 years of age and is generally assumed as actual work force for any state, was too less. Looking at this, the King realized that most of the young generation may leave country, and mostly elderly people would remain in the state and this would be a liability for the state. The King issued a new policy called as Me Young Joshen in an attempt to prevent this trend, in January 2014, whereby citizens between the ages of 18 to 60 could not leave the country for any reasons. The young generation got worried due to this policy. They came together and formed a group called as Development for All (DFA). They told to the King through various representations that if freedom of movement and settlement is denied then arrangements should be made for employment and thus development of all. The DFA also demanded that King should share profit of iron mining and limit his powers for the development and welfare of the people in Joshen. The King said that he could not violate obligations of international law. Further, he also said that citizens of Joshen are subjects of the state, thus he can restrict their freedom of movement and settlement for national integrity and unity. King Baruawa IV, further, introduced more stringent policies to curb the movement of people. 13. On 31 May 2014, a large DFA group gathered in the capital of Joshen. They organized a huge rally in front of King s palace. The citizens demanded development for themselves and for Joshen. Mr Baruawa IV, ordered its army to fire in the air to

11 disburse the rally and also ordered jailing of the members of DFA group. General Mathuk undertook this responsibility. The army first rounded the people, numbering around five thousand, and then, started firing in the air. As there was no warning from the army, the people in the rally started running but found themselves surrounded by army. A huge stampede occurred, in which, as per the estimate of government, one thousand and five hundred people died even though not a single individual was killed in the firing by the Army. From that day, people of Joshen took to guerilla warfare against the King and the army. 14. Out of one thousand and five hundred people who died in stampede, forty five persons were the citizens of Sangala. These people were involved in the business of medicinal plants. They were in the rally as spectators but were killed in the unfortunate stampede. 15. Many citizens of Joshen started to flee to other countries, mainly to Sangala due to the internal conflict. More than ten thousand people, mostly elderly citizens, took asylum in Sangala. Sangala took the issue of asylum seekers to international organizations including United Nations and World Trade Organisation. United Nations declared Joshen as unsafe for travellers. Consequently, approximately 1000 more citizens of Joshen took asylum in Sangala. These asylum seekers adopted the earn and live policy of Ms Parshoo, President of Sangala and tried to make a living. Ms Parshoo, realising the responsibility of protecting human rights of the citizens of Joshen, and to stop influx of asylum seekers to their state, extended help of war planes and ammunitions to the DFA group in July 2014.

12 16. His Majesty Baruawa stopped all supply of iron ore to Sangala after coming to know of support of Sangala to DFA and alleged that Sangala violated Sangala- Joshen Pact 1999 and international law by doing intervention in Joshen. The King Mr Baruawa IV ordered its army to attack the steel industries of Sangala. He imposed this responsibility once again on General Mathuk. To perform this responsibility, General Mathuk personally planned and supervised the armed attacks the steel industries. In just one dark night, he led attack on two steel industries in Sangala. He was, however, taken into custody the army of Sangala before the third steel industry could be executed. 17. Ms Parshoo suffered a major setback due to non-supply of iron ore from Joshen and attack on steel industries which was a backbone of Sangala s economy. The economy of Sangala took a huge hit. The Stock Exchange index went down by 1000 points in two days. Domestic market got affected. Worries of unemployment came to fore in the mind of the citizens of Sangala. Citizens of Sangala were further shocked by the death of 45 citizens in Joshen. The citizens were also unhappy with the increasing number of asylum seekers from Joshen to their state as these asylum seekers were providing cheap labour. As a response, a non-governmental group called as Justice for Citizens Group (JCG) was formed to get justice to the citizens. The JCG filed a case in their country s court praying that General Mathuk should be held liable for the death of 45 citizens in stampede and for attacking steel industries which is the violation of Fourth Geneva Convention relative to the Protection of Civilians, King Mr Baruawa condemned the arrest of General Mathuk and asked Sangala to send back General Mathuk to Joshen.

13 19. On 21 September 2014, Ms Parshoo ordered sealing of its territorial border, called as sajo border, shared with Joshen, stating that the state was not ready to give asylum to more citizens of Joshen due to economical and law and order problems. The Government prohibited giving any work to the citizens of Joshen in Sangala. Citizens of Joshen were excluded from all developmental policies in Sangala. They were isolated in Sangala and forcefully repatriated to Joshen at the sajo border. Thousands of citizens of Joshen were at the border at one end- one state where they belonged to but with no opportunities of development and at the other end there were opportunities of development but they were not accepted by the state. 20. Sangala sought appropriate compensation from Joshen for the violation of Sangala- Joshen Pact 1999 and said that the Pact should continue in future as Joshen agreed for the same in the Pact. Joshen denied the same and requested to release General Mathuk. With no agreements in sight, both states consented to submit the dispute to the International Court of Justice with a special agreement signed on 7 November Sangala requested the Court to adjudicate on the following points and declare: [i] That, Joshen has violated Sangala- Joshen Pact 1999 by discontinuing the supply of iron ore. Joshen should pay compensation for the same and should continue the Pact till [ii] That, the reservation to Article 1, ICCPR is impairing the human rights of all people to enjoy and utilise fully and freely their natural wealth and resources, thus it should be declared as null and void. [iii] That, the reservation to Article 23, ICCPR is violating basic human right to marriage and form a family, thus, it should be declared as null and void.

14 [iv] [v] [vi] [vii] That, Joshen also violated International human rights law by denying right to development of its citizens which resulted in problem of migrants. That, Joshen has violated Fourth Geneva Convention Relative to the Protection of Civilians, 1949 by attacking steel industries. That, Joshen should pay appropriate compensation for attack on steel industries, violation of Sangala Joshen Pact 1999 and also for burdening Sangala economically by producing refugees and migrants. That, Sangala had jurisdiction to try and punish General Mathuk and there was no obligation to return him to Joshen. 22. Joshen requests the Court to adjudicate and declare that: [i] That, Sangala has violated Sangala-Joshen Pact 1999 and international law by doing intervention in Joshen. The Sangala Joshen Pact 1999 should not be continued. [ii] That, Sangala caused trans-boundary environmental damage thus violated international environmental law. Sangala should pay compensation for causing pollution in and thus affecting economy of Joshen. [iii] That, reservation to Article 1 and 23 to ICCPR are domestic in nature and are valid. Right to development is a non-binding human right. [iv] That, attack on steel industries was a consequence of intervention by Sangala. Thus, Sangala cannot ask for compensation. [v] That, arrival of migrants and refugees into Sangala is not a violation of international law. Thus, Sangala cannot ask for compensation.

15 [vi] Arrest of General Mathuk was illegal and he must be returned to Joshen immediately. 23. Given the facts mentioned above the following issues came before the Court: [i] [ii] [iii] [iv] [v] [vi] [vii] International law on the question of violation of Sangala- Joshen Pact 1999 and who was responsible for paying the appropriate compensation for its violation. International law on the status of treaty after its violation. International law on reservation to any provision of international convention. International law on right to development and protection of environment. International law on permanent sovereignty on natural resources and their ownership and sharing their benefits with population. International law on responsibility to protect the human rights of citizens of other states and intervention. International law on jurisdiction to arrest persons of other state International law on the human rights of asylum seekers and protection to them and obligation to pay compensation for the same

16 Appendix A Excerpts of Sangala- Joshen Pact 1999 as Revised in 2013 Article 5: Scope of the Agreement 5.1. The contracting party Joshen will export iron ore to contracting party Sangala for period of 20 years starting May 2013 that is during May May The supply of iron ore shall not be stopped until May The contracting party Sangala shall pay Joshen at prevailing market price that shall be agreed mutually by both parties from time to time. The payment shall be in form of gold and shall be paid in advance at the beginning of each financial year. The amount shall be calculated on projected demand for the financial year and shall be based on actual consumption in three preceding years and the projected requirement of the industries and shall be subject to availability of iron ore in reserves of Joshen. Article 6: Promotion of the Agreement 6.1 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. Article 7: Compensation for Violation 7.1 In case of violation of Article 5, the contracting party that has violated Article 5 shall be liable to pay compensation to the other contracting party. The award of compensation shall be mutually agreed by the parties. Article 8 shall automatically get invoked in case both the parties are unable to reach an agreement on compensation.

17 Article 8. Settlement of Dispute 8.1. Any dispute concerning implementation of Articles 5 and 7 occurring between contracting parties Sangala and Joshen, shall, if possible, be settled amicably between the two parties concerned If the dispute is not amicably settled within a period of one month from the date of dispute occurred, then it may be submitted to the International Court of Justice, The Hague.