Legal Submission to the Maastricht Panel of Arbitration

Legal Submission to the Maastricht Panel of Arbitration

Legal Submission to the Maastricht Panel of Arbitration By: The Kingdom of Shauna Shauna Representative: Alison Caless ID: i6056159 Tutorial Group 5 Word Count: 2004 UCM 22 November 2012 2

By: The Kingdom of Shauna Shauna Representative: Alison Caless ID: i6056159 Tutorial Group 5 Word Count: 2004 UCM 22 November 2012 1. Introduction This legal submission is written on behalf of the Kingdom of Shauna for the Maastricht Panel of Arbitration, regarding the case of the construction of a hydroelectric dam on the Luango River by the Republic of Ndebele. The populations of both the Republic of Ndebele and the Kingdom of Shauna are dependent on the Luango River for their water 3

supply. The projected damn construction is only a few miles from the Republic of Ndebele s border with Shauna. Within this border area is where the Ido, an indigenous group that forms a cultural and ethnical minority in both countries, reside. The Ido, which inhabit regions of both Shauna and Ndebele, are strictly agricultural societies that have habitually used traditional ditches as a method of irrigation off the Luango River. These regions are regarded as their spiritual homelands, and the Ido have no desire to be forced to industrialize or change their customs. The construction of the dam by the Ndebele would result in an inadequate supply of water to support the agriculture of the Ido. Despite this effect, the Government of Ndebele has commenced operational activities on the dam, which has been commissioned to the Netherlands Company Bello Nedam and funded by a loan from the World Bank. The parties involved are: the Kingdom of Shauna, The Republic of Ndebele, the Ido, the World Bank and Bello Nedam. The Kingdom of Shauna believes the Republic of Ndebele s establishment of a fiveyear plan for the construction of a dam on the Luango River is violating their obligations under international law. The duties that are being violated will be presented here as separate legal arguments discussed in section two: legal arguments. First, it will be demonstrated that the Ndebele s duties towards the rights of the Kingdom of Shauna were neglected. This basis of this argument is that both Ndebele and Shauna are bound by rules of international law that require certain duties be fulfilled towards other states, specifically those obligations regarding the protection of other States people. Building off this argument, section two will cover the specific caution and attention that is required by international law when here is a shared international watercourse involved and each State s action may directly and drastically impact another. Lastly, section two will also discuss the Ndebele s obligations to fulfill the rights of the Ido, an indigenous people that inhabit both states. Indigenous people have distinct protective rights under international law that Ndebele have not respected by commencing operational activities on the Luango River dam. 2. Legal Arguments 2.1: Ndebele violated duties towards the international rights of the Kingdom of Shauna. As two members of the United Nations, as well as being neighboring countries, both nations are bound by certain standards of international law. It has been recognized in 4

several case law, such as the Island of Palmas case and Trial Smelter case, as well as in treaty practice, that territorial sovereignty includes the obligation to protect the rights of other states 1. It is therefore Ndebele s duty to not take the action of building this dam, as it would result in injuring the rights of Shauna. In the Rio Declaration on the Environment and Development, it states that nations have a responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States. 2 This document, although not legally binding based solely UN Membership, is binding due to its reflection of customary law. This document has existed for over ten years, representing international norms that existed even before they were codified. The principles are well established, well known, and followed by the majority, meaning Ndebele can be held accountable for not following them. Additionally, this Declaration states that environmental and developmental action needs to address the interests and needs of all countries, which is contrasted by Ndebele s solely self-interested behavior in this instance. Ndebele cannot retain benefits, economic or otherwise, as a direct result from an action that correspondingly reduces the resources and development of Shauna. Another violation of international law was Ndebele s solitary continuation of the dam construction project even though negotiations with Shauna had not been successful. The participation of all States in the decision-making process, including access to information, judicial and administrative proceedings, and, if necessary, redress and remedy, are necessary to stay in accordance with international law. 3 Ndebele did not exercise the precautionary principle or act with sufficient due diligence in this case. They did not take any reasonable measures to prevent harm from coming to the Ido, who are Shauna citizens as well as their own. Their negligent behavior towards Shauna citizens holds them at fault for the damage that will be caused by this dam s construction. This damage is significant, as an objective study has proven it will destroy an entire population s means of subsistence. 1 See Island of Palmas case, 2 RIAA, 1928, pp. 829, 839: territorial sovereignty incorporates obligation to protect within territory the rights of other states; see also Trail Smelter case, 35 AJIL, 1941, pp. 182: every state not to allow knowingly its territory to be used for acts contrary to the rights of other states 2 See Principle 2 of U.N. Doc A/CONF.151/26, Rio Declaration on Environment and Development, 1992; which reflects customary law 3 See Principle 10 of U.N. Doc A/CONF.151/26, Rio Declaration on Environment and Development, 1992; which reflects customary law 5

2.2: Ndebele and Shauna share an international watercourse, the Luango River, which requires specific caution and attention to actions on that watercourse that might affect another state. International commission on the River Oder case, for example, the Permanent Court of International Justice noted that this community of interest in a navigable river becomes the basis of a common legal right, the essential features of which are the perfect equality of all riparian states in the use of the whole course of the river and the exclusion of any preferential privileges of any riparian state in relation to others. 4 The Shauna do not benefit from the building of this dam that economically benefits part of Ndebele. In fact, economically they may suffer, which would mean Ndebele was gaining preferential privileges over the Luango River. The Ndebele are aware that Shauna may suffer economically as a result of this dam, and yet did not exercise the precautionary principle effectively. In the Corfu Channel case, the International Court emphasized that it is the obligation of every state not to allow knowingly its territory to be used for acts contrary to the rights of other states. 5 In order for it to act in contrary to the rights of another State, the transboundary impact must be evaluated. The Convention on the Protection and Use of Transboundary Watercourses and International Lakes defines transboundary impact as, any significant adverse effect on the environment resulting from a change in the conditions of transboundary waters caused by a human activity. 6 Environment includes effects on human health and safety, natural resources like water, property forming part of the cultural heritage and the characteristic aspects of the landscape. 7 In this case, Shauna citizens access to water, as well damage to their property, which forms part of their cultural heritage, is negatively impacted by the dam construction. Additionally, there is no evidence in this case that the Ndebele tried to prevent transboundary harm, or even to put sufficient and proportional effort in to minimize the comparable risk degree and damage thereof. As a result, Ndebele fails the test of due diligence as the state of action origin in this case. The Convention on the Law of the Non-Navigational Uses of International Watercourses states that watercourse states such as Ndebele and Shauna need to use their 4 Shaw, Malcolm N.; International Law; Cambridge University Press, Cambridge, 2008, page 1019 5 Shaw, Malcolm N.; International Law; Cambridge University Press, Cambridge, 2008, page 1020 6 Shaw, Malcolm N.; International Law; Cambridge University Press, Cambridge, 2008, page 1052 7 See case of Transboundary Harm Arising out of Hazardous Activities, 2006, A/61/10, pp. 110, 121, which reflects customary law 6

watercourse in an equitable and reasonable manner. 8 The main factors involved in this are the conservation, protection, development and economy of use of the water resources of the watercourse. Article 7 also provides that watercourse states need to take all appropriate measures to prevent the causing of significant harm to other watercourse states. 2.3: The Republic of Ndebele has a duty to fulfill the rights of Indigenous Peoples; by violating the rights of the Ido people, whom also reside in the Kingdom of Shauna, Ndebele is violating international law. In the International Covenant on Economic, Social, and Cultural Rights, it is stated that, in no case may a people be deprived of its own means of subsistence. 9 This document has been ratified and is therefore binding to both Ndebele and Shauna, making all state action required to strictly adhere to its contents. The construction of a dam on the Luango River by Ndebele will destroy the agricultural livelihood of the Ido people by cutting off the water supply that sustains them. By devastating their subsistence, Ndebele is heading on a path that does not recognize the rights of everyone to an adequate standard of living for himself and his family, including adequate food. 10 In addition, the Ido people have a traditional agricultural subsistence economy that builds upon their region being seen as their spiritual homeland. Despite this delicate relationship, Ndebele has commenced operational activities on the dam, thus ruining the Ido s entitlement to a healthy and productive life in harmony with nature. 11 As indigenous people, the Ido have special protection under international law. They should be able to freely pursue their economic, social, and cultural development. 12 Contrary to Article 8 of the United Nations Declaration on the Rights of Indigenous Peoples, Ndebele have acted in a way that subjects the Ido to cultural destruction, as well as depriving them of their cultural values and ethnic identities, and dispossessing them of 8 Shaw, Malcolm N.; International Law; Cambridge University Press, Cambridge, 2008, page 1053 9 See Article 1 paragraph 2 of U.N. Doc. A/6316, International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 1976. 10 See Article 11 paragraph 2 of U.N. Doc. A/6316, International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 1976. 11 See Principle 1 of U.N. Doc A/CONF.151/26, Rio Declaration on Environment and Development, 1992; which reflects customary law 12 See Article 3 of the United Nations Declaration on the Rights of Indigenous Peoples 7

their resources. 13 Although this Declaration is not binding due to UN Membership, the international legal norms codified and represented by this text reflect customary law commitments by states that have been strengthened by this Declaration s existence and the continued acceptance of these principles. The traditional ditch technology used by the Ido cannot be deliberately prevented by the State. Technology is protected as a right to protect manifestations of their cultures while continuing to practice and revitalize their cultural traditions and customs. 14 Furthermore, this is preventing the Ido from engaging freely in all their traditional and other economic activities. 15 Water as a resource of the Ndebele is also protected under international law. Under Article 26 of the United National Declaration on the Rights of Indigenous Peoples, the Ido have the right to lands, territories and resources that they have traditionally owned and must have legal recognition by the State to protect them. Even specifically within this Article is recognition of special respect towards land tenure systems such as the traditional ditch system of the Ido. 16 The ILO Convention C169 Concerning Indigenous and Tribal Peoples in Independent Countries also recognizes the right of the Ido to decide priorities for development process as it affects their lands and participate in plans for national and regional development. 17 This document has been ratified and is therefore binding to both Ndebele and Shauna, making all state action required to strictly adhere to its contents. This links to the failure of Ndebele to fully consult, inform, and cooperate with the Ido people regarding the construction of the dam of the Luango River. Ndebele did not sufficiently participate in the decision-marking process of the dam construction, nor did they ensure that the process was transparent. 18 The Ido did not give informed consent prior to the commencement of the dam project that affected their 13 See Article 8.2 of the United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly Resolution 61.295 on 13 September 2007) 14 See Article 11.1 of the United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly Resolution 61.295 on 13 September 2007) 15 See Article 20.1 of the United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly Resolution 61.295 on 13 September 2007) 16 See Article 26.1 of the United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly Resolution 61.295 on 13 September 2007) 17 See Article 7.1 of the ILO Convention C169 18 See Article 27 of the United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly Resolution 61.295 on 13 September 2007) 8

resources. 19 Ndebele did not take measures to ensure that the Ido environment was preserved, nor did they put safeguards in place to protect the water resource in their region. 20 The Convention on the Environmental Impact Assessment in a Transboundary Context calls for the, establishment of an environmental impact assessment procedure that permits the public participation. The Ndebele failed to prevent significant transboundary harm or even to minimize the risk. 21 3. Conclusion In conclusion, based on the facts and evidence presented, Shauna believes that the construction of a dam on the Luango River is not in accordance with Ndebele s obligations under international law. Ndebele does not have the right to continue its activities of the development plan. The construction violates Ndebele s duties towards the protection of people of other States, as well as violating specific international rules that pertain to transboundary watercourses like the Luango River. Furthermore, the Ndebele s past and present actions do not reflect consequences that are in accordance with international law regarding indigenous people like the Ido. This multi-layered breakdown of abiding by international law has been backed with sufficient evidence to justify the discontinuation of the Luango River dam construction. Bibliography Charter of the United Nations, San Francisco, 24/10/1945 C169 Indigenous and Tribal Peoples Convention, Geneva, 1989 Convention on the Protection and Use of Transboundary Watercourses and International 19 See Article 32.2 of the United Nations Declaration on the Rights of Indigenous Peoples 20 See Articles 7 and 15 of the ILO Convention C169 21 Shaw, Malcolm N.; International Law; Cambridge University Press, Cambridge, 2008, page 1029 9

Lakes, Helsinki, 1992 Island of Palmas case, 2 RIAA, 1928 Shaw, Malcolm N.; International Law; Cambridge University Press, Cambridge, 2008 Trail Smelter case, 35 AJIL, 1941 U.N. Doc A/CONF.151/26, Rio Declaration on Environment and Development, 1992 U.N. Doc. A/6316, International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 1976 U.N. Doc A/810, Universal Declaration of Human Rights, GA res. 217 (LXIII), 1948 United Nations Declaration on the Rights of Indigenous Peoples (Adopted by the General Assembly Resolution 61.295 on 13 September 2007) 10