MEMORANDUM FOR CLAIMANT

Transcription

1 TEN ANNUAL LAWASIA INTERNATIONAL MOOT 2015 AUSTRALIAN Team A1505-C SHANGHAI UNIVERSITY OF POLITICAL SCIENCE AND LAW ON BEHALF OF: THE NEPALESE GOVERNMENT EQUATORIANA CLAIMANT AGAINST: THE AUSTRALIAN MUSEUM THE NATIONAL MUSEUM(MALAYSIA) Dr. John Thomas Smith, Jr. RESPONDENT PEILIANG LIU JINGJING LIU TABLE OF CONTENTS 1

2 INDEX OF AUTHORITIES STATEMENT OF JURISDICTION QUESTIONS PRESENTED SUMMARY OF THE PLEADING STATEMENT OF FACTS PLEADING ISSUE 1: UNESCO Convention, Nepalese law and Australia law all establish Nepal s right to demand the return of the statue A. The export of statue is illicit a. Nepalese law statue is a culture property and ancient monument protection according to UNESCO Convention and Nepalese law b. On the basis of article 6 of the UNESCO Convention, the action exporting the statue is break the rules c. According to article 3 of the UNESCO Convention and Nepalese law, the export of the statue is illicit B. According to UNESCO Convention, the statue should be returned to the claimant C. Based on Australian Law, Australian Museum should return the statue. 13 D. UNESCO Convention, Nepalese law and Australia law all establish Nepal s right to demand the return of the statue ISSUE 2: A. If there is a conflict between them, (UN) Convention should be applied to this dispute a. The state shall perform its international treaty obligations as a signatory..14 b. Nor can the state invoke domestic legal to escape (UN) Convention

3 B. When Australian law and Nepalese law has conflict, the application of law should based on the jurisdiction of country a. Dr. Smith gained the statue illegally, which took place in Tribhuvan University, Nepal b. The act of export took place in Nepal ISSUE3:The award shall be governed by Inte rnational Arbitration Act 1974(Aus tralia) A. Australia s admission to the New York Convention are not restricted to com mercial arbitration B. Australia national museum shall return the statue ISSUE4:There are many negative effects on this dispute of the failure to comply. A. Cultural property will lack protection in local country, thus the cultural property may critically run off a. In this dispute, this cultural property the statue is belonged to Nepal b. Without world common consciousness and trust, People will use many ways (such as stolen) to deprive this cultural property

4 Index of Authorities 1970 UNESCO Convention on the Means of Prohibiting and Pra11-17 Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property International Arbitration law 1974 Pra23 25 Ancient Monuments Protection Act Australian Protection of Movable Cultural Heritage Act 1986 Nepalese Export Regulations New York Convention Pra14 Pra19 Pra17 Pra23 4

5 STATEMENT OF JURISDICTION The parties have no dispute on jurisdiction in this case. All parties have agreed to submit this dispute to binding arbitration under the auspices of the KLRCA. 5

6 QUESTIONS PRESENTED ISSUE 1: UNESCO Convention, Nepalese law and Australia law all establish Nepal s right to demand the return of the statue. ISSUE 2: If there is a conflict between them, (UN) Convention should be applied to this dispute. When Australian law and Nepalese law has conflict, the application of law should based on the jurisdiction of country. ISSUE 3: The award shall be governed by International Arbitration Act 1974(Australia) ISSUE 4: There are many negative effects on this dispute of the failure to comply. 6

7 SUMMARY OF PLEADING SHANGHAI UNIVERSITY OF POLITICAL SCIENCE AND LAW ISSUE 1: UNESCO Convention, Nepalese law and Australia law all establish Nepal s right to demand the return of the statue. FIRST, The export of statue is illicit. Nepalese law statue is a culture property and ancient monument protection according to UNESCO Convention and Nepalese law. On the basis of article 6 of the UNESCO Convention, the action exporting the statue breaks the rules. According to article 3 of the UNESCO Convention and Nepalese law, the export of the statue is illicit. Second, According to UNESCO Convention, the statue should be returned to the claimant. On the basis of article 13(b) UNESCO Convention: (b) to ensure that their competent services co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner, the statue is already illicitly exported and should be returned to its rightful owner. ISSUE 2: If there is a conflict between them, (UN) Convention should be applied to this dispute. When Australian law and Nepalese law has conflict, the application of law should based on the jurisdiction of country. FIRST, If there is a conflict between them, (UN) Convention should be applied to this dispute. The state shall perform its international treaty obligations as a signatory. Nor can the state invoke domestic legal to escape (UN) Convention. SECOND, When Australian law and Nepalese law has conflict, the application of law should based on the jurisdiction of country. Dr. Smith gained the statue illegally, which took place in Tribhuvan University, Nepal. The act of export took place in Nepal. 7

8 ISSUE 3: SHANGHAI UNIVERSITY OF POLITICAL SCIENCE AND LAW The award shall be governed by International Arbitration Act 1974(Australia) FIRST, Australia s admission to the New York Convention are not restricted to commercial ar bitration. SECOND, Australia national museum shall return the statue. ISSUE 4: There are many negative effects on this dispute of the failure to comply. FIRST, Cultural property will lack protection in local country, thus the cultural property may critically run off. In this dispute, this cultural property the statue is belonged to Nepal. If this dispute fails to comply Nepalese law, it indicates that Nepal can not protect own cultural property with own law. This failure will definitely cause other cultural properties lack protection in Nepal. Therefore, people may regard not only Nepal but also this world is lack consciousness to protect its own properties. 8

9 Statement of facts Claimant: Nepalese Government Respondent: Dr. John Thomas Smith/Australian National Museum /the National Museum (Malaysia) 1. The statue in this case was discovered by Nepalese in 2010, which has at least 300 years old and it's market value is well over $10, 000. At the first time, the statue was displayed in the Chauni Museum, Nepal and then according an orally agreement, the statue was display in the Tribhuvan University and would be returned if the Museum wanted it back or the University was unable to properly display it. 2. Dr. Smith, old friends with the Dean of the Central Department of Sociology/Anthropology at Tribhuvan University was invited to present several lectures at the University in To express the thanks, the Dean prepared a lavish dinner and give the statue to Dr. Smith as a gift. 3. The Dean, he is obviously did not have the authority to give away something that belongs to a third party such as Nepal Government without that party's permission. 4. Dr. Smith, as a well known Australia anthropologist is capable of verifying the authenticity and has realized the statue was authentic when he received it. Also, Dr. Smith has admitted that he sold antiquities got from other universities in fair prices to private collectors. 5. In March 2014, Dr. Smith left Nepal with Statue. As Nepalese Export Regulations shows, objects over 100 years old, such as sacred images, paintings, manuscripts that are valued for culture and religious reasons. However, there is nothing in the record which can explain how Dr. Smith able to remove the statue from Nepal ridding of the examination and stopping by their custom. 9

10 6. After return, Dr. Smith subsequently donated the statue to the Australian Museum, Sydney. However, there are no evidences can prove whether this is a donation or transaction between the Australian National Museum and Dr. Smith. What's more, it is well known that the object in Australia Museum were or could have very easily been aware of the export prohibition with heritages of Nepal. 7. After being examined by an expert on the object, the Australia Museum displayed the statue as part of an exhibit promoting knowledge, understanding and enjoyment of diverse culture. 8. In July 2014, Australia Museum signed a two-year loan agreement with National Museum in Kuala Lumpur, Malaysia written by librarians without an discussion of applicable law. In this agreement, Malaysia Museum should just paid the shipping costs which it did from contributions from individuals and no state funds were used. Up to now, the statue is in the National Museum. 9. When a Nepalese tourist observed the statues prominently displayed at the National Museum, Malaysia, she then reported it to Nepalese officials. After that, the Government of Nepal has demands that the statue be immediately returned to Nepal asserting that it was stolen. Both the Australia Museum and National Museum, Malaysia have refused to return the statue asserting that was a gift from Tribhuvan University to Dr. Smith who then donated it to the Australia Museum. Also, the Dean has expressed the hope that Dr. Smith would return the statue very soon after the left of Dr. Smith, but no response. 10. The Nepalese government also seeks compensation from the Malaysian government for damages to the statues since it was damaged after it left Nepal, but this issue will not be discussed in this procedure. 10

11 PLEADING ISSUE 1:UNESCO Convention, Nepalese law and Australia law all establish Nepal s right to demand the return of the statue. 11. Claimant and Respondent are all have all ratified this Convention even if they haven t. First, according to UNESCO Convention, the exportation of statue breaks this rule, therefore, it is illicit that Dr. Smith exported the statue to Australia. [pra. A]Second, the statue eventually should be returned back to Claimant up on UNESCO Convention. [pra. B]. A. The export of statue is illicit. 12. The statue is definitely a antique production over 100 years. According to it, statue is a culture property and ancient monument protection both in this two regulations. There must be some records or licenses to clarify the exportation. However, The parties claimed that there is no exactly records for the statue s exportation, Which means this action is break the UNESCO Convention. Therefore, the exportation of the statue is illicit. a. Nepalese law statue is a culture property and ancient monument protection according to UNESCO Convention and Nepalese law. 1) The statue is a culture property according to UNESCO Convention. 13. In this dispute, the statue is a authentic antique, the stature is at least 300 years old and its market value is well over $100, 000, so that it is no doubt that on the basis of UNESCO Convention Article 1(e): antiquities more than one hundred years old, this state is a culture property. 2) The statue is a Ancient Monuments protection in Nepalese law. 11

12 14. Ancient Monuments Protection Act is a rules in Nepal. It rules that the monument which have their own importance is ancient monuments protection. As what mentioned above, this statue meet the condition. b. On the basis of article 6 of the UNESCO Convention, the action exporting the statue is break the rules. 15. In this dispute, there is nothing in the record which can explain how did Dr. Smith remove the statue. However, according to export and import regulation in Nepal, there must be some records or certificates when someone stop by the customs. In addition, on the basis of article 6 (b) of the UNESCO Convention: to prohibit the exportation of cultural property from their territory unless accompanied by the above-mentioned export certificate, it is obvious that the statue s exportation progress is break the rules. c. According to article 3 of the UNESCO Convention and Nepalese law, the export of the statue is illicit. 1)The definition of illicit is the export of ownership of cultural property contrary to UNESCO Convention. 16. According to UNESCO Convention, article 3 stated that The import, export or transfer of ownership of cultural property effected contrary to the provisions adopted under this Convention by the States Parties thereto, shall be illicit. As mentioned above, the export of the statue has no certificate and has break the rules of UNESCO Convention. Therefore, It is clearly means that breaking the rules equals export the statue illicitly. 2 )Not only it is defined as illicit of UNESCO Convention, but only based on the facts in the dispute, it is apparently that the exportation of the statue is illicit. 12

13 17. In this dispute, first, Nepalese Export Regulations stated that Nepalese law prohibits the export of objects over 100 years old, and the statue is confirmed a real antique, therefore, this statue could not be exported or the person who exported will be punished. But in the fact, Dr. Smith successfully exports this real statue to Australia. Obviously, he through a illicit way to send this statue to another country. 3)Therefore, the export of the statue has broken the rules, which means the export is illicit. B. According to UNESCO Convention, the statue should be returned to the claimant. 18. The export of the statue is illicit. On the basis of article 13(b) UNESCO Convention: (b) to ensure that their competent services co-operate in facilitating the earliest possible restitution of illicitly exported cultural property to its rightful owner, the statue is already illicitly exported and should be returned to its rightful owner. C. Based on Australian Law, Australian Museum should return the statue. 19. On the ground of Section 41(2) of Australian Protection of Movable Cultural Heritage Act 1986, if the government proceed for a contravention of section 14 in relation to a protected object of a foreign country, the Commonwealth should return the object. a. Article 14 includes unlawful imports, providing that the object is a protected object of a foreign country that has been exported from that country and the export was prohibited by a law of that country relating to cultural property. b. The Nepal government stated the statue is exported illegally, which is meaningful for them. And request for returning, so Australian Museum should return it. 13

14 D. UNESCO Convention, Nepalese law and Australia law all establish Nepal s right to demand the return of the statue. ISSUE 2 A. If there is a conflict between them, (UN) Convention should be applied to this dispute. 20. If the state agreed to governed by the Convention, they undertake the obligation of fulfilling this Convention. a. The state shall perform its international treaty obligations as a signatory. 20. Obviously, signatories have the obligation to fulfill the signed Convention. b. Nor can the state invoke domestic legal to escape (UN) Convention. 21. The general rule with regard to the position of municipal law within the international sphere is that a state which has broken a stipulation of international law cannot justify itself by referring to its domestic legal situation, i. e., the state shall not evading the obligations under international conventions by invoking domestic legal. There are many typical cases to support this point. For example, the International Court, in the Applicability of the Obligation to Arbitrate case, has underlined the fundamental principle of international law that international law prevails over domestic law, while Judge Shahabudden emphasized in the Lockerbie case that inability under domestic law to act was no defence to non-compliance with an international obligation. B. When Australian law and Nepalese law has conflict, the application of law should based on the jurisdiction of country. 22. All illegal behavior committed within the territorial jurisdiction of a state may come before the municipal courts and the accused if convicted may be sentenced. This is so even where the offenders are foreign citizens. In this case, the following situatio ns are 14

15 applied to Nepalese Law, SHANGHAI UNIVERSITY OF POLITICAL SCIENCE AND LAW a. Dr. Smith gained the statue illegally, which took place in Tribhuvan University, Nepal. b. The act of export took place in Nepal. Issue 3: The award shall be governed by International Arbitration Act 1974(Australia) A. Australia s admission to the New York Convention are not restricted to com mercial arbitration. 23. According to International Arbitration Act 1974(Australia) Article 4 Accession to Co nvention: Approval is given to accession by Australia to the Convention without any declaration under sub-article 3 of Article 1 but with a declaration under Article X that Convention shall extend to all the external Territories other than Papua New Guinea. Consequently, the award can be enforced and recognized even if it s not made from a commercial ar bitration. 24. In consequence, in spite of dispute is about ownership in this arbitration, Australia national museum shall recognize the award which also can be enforced. B. Australia national museum shall return the statue. 25. Complying with International Arbitration Act 1974(Australia) Article 8. (1):Subject to this Part, a foreign award is binding by virtue of this Act for all purpose on the parties to the arb itration agreement in pursuance of which it was made. Consequently, the award governs Australia national museum. 15

16 And according to Article 8. (2), SHANGHAI UNIVERSITY OF POLITICAL SCIENCE AND LAW if Nepal applies for enforcement complying with award, then Australia national museum shall return the statue back to Nepal. ISSUE 4. There are many negative effects on this dispute of the failure to comply. A. Cultural property will lack protection in local country, thus the cultural property may critically run off. 26. Nowadays, the number of exhibitions between countries is increase, but this type of world communication always trough the way that donation or loan of the cultural property. If this dispute fail to comply Nepalese law, the consequence is very serious. First, Many cultural property in Nepal will lack protection in local country, thus the cultural property may critically run off. a. In this dispute, this cultural property the statue is belonged to Nepal. 27. If this dispute fail to comply Nepalese law, it indicates that Nepal can not protect own cultural property with own law. This failure will definitely cause other cultural properties lack protection in Nepal. Therefore, people may regard not only Nepal but also this world is lack consciousness to protect its own properties. b. Without world common consciousness and trust, People will use many ways (such as stolen) to deprive this cultural property. 16