Respondent 2009 - D M Harish Memorial Moot

TEAM CODE: O
IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

YEAR 2009

THE CASE CONCERNING THE CONSEQUENCES OF THE DISASTER AT MONRON FACTORY ND
OTHER RELATED MATTERS

THE REPUBLIC OF ANGHORE (APPLICANT)
V.
THE REPUBLICS OF RATANKA AND CARISTHAN
(RESPONDENTS)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE
WRITTEN SUBMISSION FOR THE RESPONDENTS

THE 2009 D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT
COURT COMPETITION
THE 2009 D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION
--------------------------------------Memorial for the Respondents----------------------------------------
INDEX

INDEX OF AUTHORITIES ................................................................................................ I
STATEMENT OF JURISDICTION ................................................................................ VIII
SYNOPSIS OF FACTS ..................................................................................................... IX
SUMMARY OF ARGUMENTS ..................................................................................... XIII
BODY OF ARGUMENTS .................................................................................................. 1

I.] THAT RATANKA AND CARISTHAN BEAR NO RESPONSIBILITY WHATSOEVER FOR THE
ENVIRONMENTAL DAMAGE, AND HENCE, CANNOT BE HELD LIABLE TO PAY ANY
COMPENSATION. ................................................................................................................. 1
A.] That Ratanka realizes the importance of protection of environment and has
complied with all its international obligations. ............................................................... 1
B.] That The environmental disaster was a result of unseasonal rains and flash floods,
i.e. force majeure, for which Ratanka cannot be made liable. ........................................ 2
C.] That Anghores own responsibility in causing the climatic changes in the region,
which resulted in the present environmental disaster, undermines any claim it seeks to
establish against Ratanka. ............................................................................................... 3
D.] That Caristhan has no direct or indirect role in the damage caused and cannot be
held internationally liable for the same. .......................................................................... 4
II. THAT RATANKA AND CARISTHAN ARE NOT RESPONSIBLE FOR THE VIOLATION OF
ANGHORES TERRITORIAL SOVEREIGNTY ........................................................................ 6
--------------------------------------Memorial for the Respondents----------------------------------------
A.] That Caristhan Is Not Responsible For Violation Of Anghores Territorial-
Sovereignty As There Was The Situation Of Necessity ................................................. 6
B.] That the Use Of Military Bases By Caristhn In Rantankan Territory Does Not Cast
Any Responsibility On Ratanka .................................................................................... 12
III. THAT THE ANESIANS ARE NOT RATANKAIANS BUT REFUGEES AND NEED TO BE
PROTECTED BY ANGHORE ................................................................................................ 13
A.] That the Anesians are not Ratankaians ................................................................... 13
B.] That the Anesians are Refugees and therefore, they are entitled to refugee
protection in Anghore. ................................................................................................... 15
C.] That under Human Rights Norms, Anghore is obligated to provide protection to
Ansieans ........................................................................................................................ 17
D.] In Arguendo, even if Anseains are Ratankaians then also Anghore cannot expel
them from its Territory .................................................................................................. 18
E.] That Ratanka and Caristhan are under no obligation to pay compensation to
Anghore for the cost incurred by it on the welfare of Anseians. .................................. 18
IV. THAT CARISTHAN HAS NOT VIOLATED ITS COMITY OBLIGATIONS UNDER
INTERNATIONAL LAW ...................................................................................................... 19
A.] Comity is not a rule of law ...................................................................................... 19
B.] In Arguendo, even if comity is a rule of law, then also Caristhan has not violated its
comity obligations ......................................................................................................... 20
CONCLUSION ............................................................................................................... XV

----------------------------------Memorial for the Respondents----------------------------------------

i
INDEX OF AUTHORITIES

I. UN DOCUMENTS AND RESOLUTIONS

Commentaries to the Draft Articles on Responsibility of States for Internationally
Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session,
U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) ........... 2, 8, 11
Conclusion No. 22 (XXXII), 1981 ................................................................................... 15
Declaration of the Right to Development (G.A.Res. 41/128) (Dec.4, 1986) ..................... 1
Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec.14,
1962)................................................................................................................................ 1
Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of
the International Law Commission, Fifty-Third Session, U.N. G.A.O.R., 56th Sess.,
Supp. No. 10, U.N. Doc. A/56/10 (2001).................................................................. 5, 11
General Assembly resolution 2200A (XXI) of 16 December 1966 ................................. 17
Letters from U.S. Secretary of State Daniel Webster to British Minister Mr. Fox, 29
BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41). ................................................... 6
R. Ago, The Internationally Wrongful Act of the State, Source of International
Responsibility, Eighth Report on State Responsibility, Addendum (1980), ILC, 32
nd
sess., UN Doc. A/CN.4/318/Add.5, 8 ............................................................................. 8
Report of the ILC (1980), UN Doc. A/35/10 .................................................................. 6, 7
Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev.
(1992) .............................................................................................................................. 1


ii
See Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago, U.N.
Doc. A/CN.4/318/ADD.5-7, reprinted in 1980 Y.B. INT'L L. COMM'N vol. II, pt. 1,
13, 16, para. 7, U.N. Doc. A/CN.4/SER.A/1980/Add.l (Part 1) ..................................... 8
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
1997 at Section II, Paras. 4-5 ........................................................................................ 15
Stockholm Declaration on the Human Environment, U.N. Doc. /CONF.48/14/Rev.1
(1973) .............................................................................................................................. 1
The 1966 Bangkok principles Concerning Treatment of Refugees .................................. 16
The 1984 Cartenga Declaration on Refugees ................................................................... 16
UN Secretary General, Rio Declaration on Environment and Development: Application,
UN Doc. E/CN.17/1997/8 ............................................................................................... 1
United Nations Conference on Environment and Development, June 3-14, 1992, ............ 1
United Nations Conference on the Human Environment, June 1-16, 1972 ........................ 1
Yearbook of the ILC, 1961, vol. II ...................................................................................... 2

II. JUDICIAL DECISIONS
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J.
65......................................................................................................................................... 6
Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79.............................. 1
Diversion of the Waters from the Meuse case, recognizing equity as a part of
international law: (1937) PCIJ Ser. A/B, No. 70, 76-7..3
Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7 ................................ 6, 7, 8, 9
Greenland v. Chaplin, (1850) 5 Ex. 243 ........................................................................... 19


iii
Judge v. Canada, Communication No. 829/1998, Views 20 Oct. 2003, UN Doc. CCPR/
C/78/D/829/1998 ........................................................................................................... 17
Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488-489 ....................................... 19
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986
I.C.J. 14 ........................................................................................................................... 6
Ng v. Canada, Communication No. 469/1991, Views 7 Jan. 1994, UN Doc.
CCPR/C/49/D/469/1991................................................................................................ 17
North Se Continental Shelf Case, (1982) ICJ Reports 18 ................................................... 3
Nuclear Weapons Advisory Opinion, 1996 I.C.J. 241, 242, U 29 ...................................... 8
Pacific Fur Seals Arbitration, (1893) in J. B. MOORE, HISTORY AND DIGEST OF THE
INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I,
826 (Washington, DC, 1898) .......................................................................................... 6
Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74 ........ 5
Rigby v. Hewitt, (1850) 5 Ex. 240 .................................................................................... 19

III. BOOKS AND TREATISES
A. Cassese (Ed.), The Current Regulation Of The Use Of Force 247, 250-51 (1986) ..... 10
A. MCNAIR, THE LAW OF TREATIES 508, 516-18 (1961);..13
A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW 266-67, 276, 302-03
(1985). ...13
ALINE CHALUFOUR, LE STATUT JURISDIQUE DES FORCE ALLIES PENDANT LA GUERRE
1927 (1914-1918) .......................................................................................................... 13
G. S. GOODWIN-GILL AND S. TALMON, THE REALITY OF INTERNATIONAL LAW; ESSAYS IN
HONOUR OF IAN BROWNLIE 401 (Oxford University Press, 1999) ................................. 6


iv
G. S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 166-167 (2nd ed., 1996) 16
G. SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAW, 21 (6
th
ed., 1976) ........... 13
GUNNEL STENBERG, NORT-EXPULSION AND NON-REFOULEMENT, 288 (1989) ................ 16
HALL, INTERNATIONAL LAW 7
th
Edition, Sec. 56 .............................................................. 13
I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 614-15 (3
rd
ed., 1979) ........ 13
J. MAKARCZYK, (ED.), ESSAYS IN HONOUR OF JUDGE MANFRED LACHS 250 (Martinus
Nij-hoff, 1984). ............................................................................................................... 7
J. B. MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH
THE UNITED STATES HAS BEEN A PARTY I, 826 (Washington, DC, 1898) ..................... 6
JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE
RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARY 183 (2002) ........................ 7
L.B. SOHN AND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS
2 (1992) ......................................................................................................................... 18
LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW 107 (6
th
ed.) ....................................... 13
MALCOLM N. SHAW, INTERNATIONAL LAW 1031 (5th ed., 2003) ....................................... 6
M. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES at 213-14 (1985) ......... 13
OPPENHEIM'S INTERNATIONAL LAW 1155 (Sir Robert Jennings & Sir Arthur Watts eds.,
9
th
ed. 2003). .................................................................................................................. 12
PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 101 ........ 4
R. PLENDER, INTERNATIONAL MIGRATION LAW (1998) .................................................... 18
SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE 322, 333-34 (Konrad Ginther et
al. eds., 1995 .................................................................................................................... 4
VAN PANHUYS, THE ROLE OF NATIONALITY IN INTERNATIONAL LAW (1959) .................. 18


v
WESTLAKE, INTERNATIONAL LAW 265 (edition 1919) ...................................................... 13
WHEATON ELEMENTS OF INTERNATIONAL LAW 95 & 99 ................................................. 13
YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 184 ....................................... 6

IV. ARTICLE AND JOURNALS
Caroline Foster, Necessity and Precaution in International Law: Responding to Oblique
Forms of Urgency, 23 NZULR 265 (2008), 266. .................................................................. 7
Adrian A. Barham, The Establishment And Conduct Of Extra-Territorial Military Bases In
Peacetime-Some International Law Considerations, 31 B. L. J. 7 (1999), 15 .............. 13
Andreas Laursen, The Use of Force and (the State of) Necessity, 37 VAND. J.
TRANSNATL L. 485 2004, 491 ........................................................................................ 6
Bathurst, Jurisdiction over friendly armed forces, the American Law, 23 B. Y. B. I. L.,
339. ................................................................................................................................ 13
Daniel Dobos, The Necessity Of Precaution: The Future Of Ecological Necessity And
The precautionary Principle, 13 FORDHAM ENVTL. L.J. 375 (2002), 381 ...................... 9
Ian Brownlie & C.J. Apperley, Kosovo Crisis Inquiry: Memorandum on the International
Law Aspects, 49 INT'L & COMP. L.Q. 878 (2000), 903.................................................. 11
John H. Knox, The Myth and Reality of Transboundary Environmental Impact
Assessment, 31 A.JI.L. 291, 293 ..................................................................................... 1
Justice Jitendra N. Bhatt, Dynamics and Dimensions of Doctrine of Desuetude, (2004) 4
SCC (Jour) 21 ................................................................................................................ 13
King, Further Developments concerning jurisdiction over friendly armed forces, 40 AJIL
257; Schwelb ................................................................................................................. 13


vi
King, Jurisdiction over friendly armed forces, 36 AJIL, 539 ........................................... 13
O. Schacter, The Right of States to Use Armed Force, 82 MICH.L.R. 1620 (1984), 1631.
....................................................................................................................................... 10
Ole Spiermann, Humanitarian Intervention as a Necessity and the Threat or Use of Jus
Cogens, 71 NORDIC JOURNAL OF INTERNATIONAL LAW 523 (2002), 525 ..................... 11
Oscar Schachter, The Emergence of International Environmental Law, 44 J. INTL AFF.
457 (1991), 462- 63 ......................................................................................................... 1
R. Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3
YALE HUM. RTS & DEVELOPMENT L. J. 15 & 26 (2000) ............................................. 3, 7
R. Falk, The United States and the Doctrine of Nonintervention in the Internal Affairs of
Independent States, 5 HOW. L. J. 163 (1959), 167. ........................................................ 11
Tom Clark, Rights Based Refuge, the Potential of the 1951 Convention and the Need for
Authoritative Interpretation, 16 INTL J. REFUGEE L. 584 (2004), 589. .................. 15, 17
William C.G. Burns, Potential Causes of Action for Climate Change Damages in
International Fora: The Law of the Sea Convention.
http://policy.miis.edu/programs/BurnsFT.pdf <last accessed on 6/01/09> .................... 2

V. MISCELLANEOUS DOCUMENTS
United Nation Framework Convention on Climate Change ............................................... 2
Letters from U.S. Secretary of State Daniel Webster to British Minister Mr. Fox, 29
BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41). .................................................. 6
GENEVA CONVENTION ON THE STATUS OF refugee, 1951 .................................................. 16
The International Covenant on Civil and Political Rights, available at
http://www2.ohchr.org/english/bodies/hrc/index.htm, <last accessed on 6/1/2009> ... 17


vii
The Organization of African States Convention Governing the Specific Aspects of
Refugees Problems in Africa 1969 (OAU Convention) ................................................ 16
United Nations Charter, as amended June 26, 1945, 892 U.N.T.S.
119....1
United Nations Convention on the Law Sea, opened for signature Dec. 10, 1983, 1833
U.N.T.S. 331, Art.193..1
United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S.
1081



viii
STATEMENT OF JURISDICTION

The Republics of Ratanka and Caristhan humbly submit to the jurisdiction of the International
Court of Justice for final resolution in the present dispute between the Republic of Anghore and
the Republics of Ratanka and Caristhan. The Courts jurisdiction is invoked under Article 36(1)
read with Article 40(1) of the Statute of the International Court of Justice, 1950.


ix
SYNOPSIS OF FACTS

RATANKA: Ratanka is a mountainous nation from where the Mithali River emerges. Its
people have traditionally been involved in subsistence farming and animal husbandry.
They have generally belonged to a single ethnic and religious group, which is one of the
reasons attributed to the 500years of peace there. In the last 50 years the government has
built a mixed economy which has improved the life of atleast 30% of the people.

ANGHORE: Anghore is a country based in the Mithalian Plains, neighbouring Ratanka.
It is significantly better off than Ratanka with thriving Agricultural and industrial bases
and a privatized economy. The relations between Ratanka and Anghore have been cordial
notwithstanding the occasional problems due to differences in economic progress.

CARISTHAN: Caristhan is a coastal country neighbouring Ratanka. It is prosperous
with a total population of 14 million and has a similar type of economy as Anghore.
Historically it has had trade relations with countries world-wide and to safeguard its trade
it also had a strong military. Ratankians and Caristhanis, although neighbours, are two
distinct ethnic groups with no linkages to each other.

CLIMATIC CHANGE: Climatic change has happened in the region affecting Ratanka
the most. The climatic change has been attributed to global warming coupled with the
200 years of industrial activity in Anghore and to some degrees in Caristhan. This has
resulted in the melting of the Ratankian Glacier and shrinking of the Transeian River.


x
Climate change with deforestation has caused many flash floods too. Although, now
Anghore has championed the cause of environmental protection by changing regulations
on economic activity and use of eco-friendly technology. All these environmental
changes had a huge impact on a small minority called the Anseians living in the forests
for more than 1,200 years. Their citizenship is in doubt, although; there exists a treaty
signed 200 years ago by Ratanka to exercise sovereignty over the Anseians. In the last
few years they have come out of the forest but have found it tough to integrate into the
Ratankian society.

ECONOMIC AND MILITARY EXPANSION: In 2003, Caristhan as part of its
aggressive policy of military and trade expansion decided to provide Ratanka a USD 20
billion aid for setting up chemical, hydro-electricity, and wind energy units. This also
included the Monron factory, which is the largest chemical unit in the region. Some of
these units took technical assistance from Caristhan although due to ostensible national
interest concerns, specifics were not disclosed. Caristhan was also allowed to open a
military base-supporting 1,00,000 personnel- in Ratanka and also awarded few oil blocks.

THE DISASTER: In 2007, incessant rainfall with the environmental changes caused a
humanitarian crisis in Ratanka. But before it could recover it was hit by renewed rains
which resulted in flash floods which also destroyed the Monron Factory, thereby causing
an environmental disaster. Although the floods subsided in 24 hours the chemicals
contaminated the Mithali River and entered the Transeian forest as well as Anghore. It
was widely believed that contamination of the Mithali River would slip the recession.


xi

REFUGEE INFLUX: Due to the wide spread destruction in Ratanka the Anesians
moved out of the Transeian forest into Anghore. Although they had set up temporary
camps for the Anseians, Anghore clarified that Anesians were Ratankians, not refugees
and Ratanka should take them back. It also wanted compensation from Ratanka and
Caristhan for the environmental disater as well as the costs that it had incurred on the
welfare of the Anseians. Ratanka dismissed the demands for compensation, stating it to
be a natural disaster. It also said that Anesians were not Ratankians. Caristhan in response
only issued a press briefing saying that it had no role to play.

MILITARY ACTION: Meanwhile the contaminated Mithali flowing from Anghore was
on the door step of Caristhan. Caristhan sensing the veracity of such a situation asked
Anghore to allow its scientists into Anghore so as to conduct a few tests. But Anghore
demanded that Caristhan first acknowledge responsibility then only it will allow its
scientists. With time ticking away, Caristhan ordered its military personnel based in
Ratanka to provide protection to its scientists to conduct tests, although, after three days
the Caristhani military withdrew from Anghores territory.

BONE OF CONTENTION: Anghore was upset at this development and clarified that
environmental damage cannot be a justification for violation of sovereignty. The relations
between Anghore and Ratanka, and, Anghore and Caristhan started to deteriorate.
Anghore insisted that Ratanka and Caristhan should bear Joint responsibility for the


xii
Economic Disaster. All the parties have decided to accept the Jurisdiction of the
International court of Justice and argue on the merits of the dispute.


--------------------------------------Memorial for the Respondents-----------------------------------

xiii
SUMMARY OF ARGUMENTS

I. RATANKA AND CARISTHAN BEAR NO RESPONSIBILITY WHATSOEVER FOR THE
ENVIRONMENTAL DAMAGE, AND HENCE, CANNOT BE HELD LIABLE TO PAY ANY
COMPENSATION
A.] THAT RATANKA REALIZES THE IMPORTANCE OF PROTECTION OF ENVIRONMENT AND
HAS COMPLIED WITH ALL ITS INTERNATIONAL OBLIGATIONS.
B.] THAT THE ENVIRONMENTAL DISASTER WAS A RESULT OF UNSEASONAL RAINS AND
FLASH FLOODS, I.E. FORCE MAJEURE, FOR WHICH RATANKA CANNOT BE MADE LIABLE.
C.] THAT ANGHORES OWN RESPONSIBILITY IN CAUSING THE CLIMATIC CHANGES IN THE
REGION, WHICH RESULTED IN THE PRESENT ENVIRONMENTAL DISASTER, UNDERMINES
ANY CLAIM IT SEEKS TO ESTABLISH AGAINST RATANKA.
D.] THAT CARISTHAN HAS NO DIRECT OR INDIRECT ROLE IN THE DAMAGE CAUSED AND
CANNOT BE HELD INTERNATIONALLY LIABLE FOR THE SAME.
D1.] THAT The disaster cannot be spelled out as a consequence of Caristhans aid to
Ratanka.
D2.] THAT Imputing liability on Caristhan is inconsistent with the principles of
international liability.
II. THAT RATANKA AND CARISTHAN ARE NOT RESPONSIBLE FOR THE VIOLATION OF
ANGHORES TERRITORIAL SOVEREIGNTY
A.] THAT CARISTHAN IS NOT RESPONSIBLE FOR VIOLATION OF ANGHORES TERRITORIAL-
SOVEREIGNTY AS THERE WAS THE SITUATION OF NECESSITY
A.1] Defence of necessity under customary international law


xiv
A.2] Defence of necessity under Conventional International law
B.] THAT THE USE OF MILITARY BASES BY CARISTHN IN RANTANKAN TERRITORY DOES
NOT CAST ANY RESPONSIBILITY ON RATANKA
B.1] That the act of Caristhans Military is not attributable to Ratanka
III. THAT THE ANESIANS ARE NOT RATANKAIANS BUT REFUGEES AND NEED
TO BE PROTECTED BY ANGHORE
A.] THAT THE ANESIANS ARE NOT RATANKAIANS
B. ]THAT THE ANESIANS ARE REFUGEES AND THEREFORE, THEY ARE ENTITLED TO
REFUGEE PROTECTION IN ANGHORE.
B.1] That the Anseians are Refugess
B.2] That the Anseians should be provided protection
C.] THAT UNDER HUMAN RIGHTS NORMS, ANGHORE IS OBLIGATED TO PROVIDE
PROTECTION TO ANSIEANS
D.] IN ARGUENDO, EVEN IF ANSEAINS ARE RATANKAIANS THEN ALSO ANGHORE CANNOT
EXPEL THEM FROM ITS TERRITORY
E.] THAT RATANKA AND CARISTHAN ARE UNDER NO OBLIGATION TO PAY COMPENSATION
TO ANGHORE FOR THE COST INCURRED BY IT ON THE WELFARE OF ANSEIANS.
IV. THAT CARISTHAN HAS NOT VIOLATED ITS COMITY OBLIGATIONS
UNDER INTERNATIONAL LAW
A.] COMITY IS NOT A RULE OF LAW.
B.] IN ARGUENDO, EVEN IF COMITY IS A RULE OF LAW, THEN ALSO CARISTHAN HAS NOT
VIOLATED ITS COMITY OBLIGATIONS


1
BODY OF ARGUMENTS
I. That Ratanka and Caristhan bear no responsibility whatsoever for the
environmental damage, and hence, cannot be held liable to pay any compensation
A. That Ratanka realizes the importance of protection of environment and has
complied with all its international obligations.
A State has, in accordance with principles of international law, the sovereign right
to exploit their own resources according to their own environmental and developmental
policies.
1
Concurrently a State has a responsibility to avoid contribution to transboundary
harm.
2
This responsibility is often considered customary international law, but is very
broad in its scope.
3
The idea that all transboundary environmental harm should be
presumptively unlawful is generally rejected:
4
To say that a state has no right to injure
the environment of another seems quixotic in the face of the greater variety of transborder
and environmental harms that occur every day.
5
Rather than an absolute prohibition, the

1
United Nations Charter, as amended June 26, 1945, 892 U.N.T.S. 119; United Nations Conference on the
Human Environment, June 1-16, 1972, Stockholm Declaration on the Human Environment, U.N. Doc.
/CONF.48/14/Rev.1 (1973), Principle 21 [hereinafter Stockholm Declaration]; United Nations Conference
on Environment and Development, June 3-14, 1992, Rio Declaration on Environment and Development,
U.N. Doc. A/CONF. 151/5/Rev. (1992), Principle 2 [hereinafter Rio Declaration]; Convention on
Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, Art. 27 [hereinafter CBD]; Declaration of the Right
to Development (G.A.Res. 41/128) (Dec.4, 1986), Declaration on Permanent Sovereignty over Natural
Resources Pe1803 (XVII) (Dec.14, 1962); United Nations Framework Convention on Climate Change,
May 9, 1992, 1771 U.N.T.S. 108 [hereinafter UNFCC]; United Nations Convention on the Law Sea,
opened for signature Dec. 10, 1983, 1833 U.N.T.S. 331, Art.193 (entered into force Nov. 16, 1994)
[hereinafter UNCLOS],
2
Id
3
John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 31 A.JI.L.
291, 293, citing UN Secretary General, Rio Declaration on Environment and Development: Application,
UN Doc. E/CN.17/1997/8, para. 23.
4
Id.
5
Id. at 293, citing Oscar Schachter, The Emergence of International Environmental Law, 44 J. INTL AFF.
457 (1991), 462- 63.


2
principle of pact sunt servanda requires States to abide by customary international law in
good faith.
6

Even the obligation that States must take precautionary action, in the absence of
full scientific certainty as to the occurrence of a particular contingency, only requires
States to take cost-effective measures for environmental protection.
7
Ratanka had put in
place latest international safety standards for its factory, had taken due care in complying
with its responsibilities under all environment related norms and principles, and had
notified Anghore immediately after the chemical leakage. Therefore, Ratanka has not
violated any obligation regarding transboundary harm.

B. That the environmental disaster was a result of unseasonal rains and flash floods,
i.e. force majeure, for which Ratanka cannot be made liable.
Force majeure has long been accepted as precluding wrongfulness
8
in
international law. Article 23 of the ILC Articles
9
provides for the preclusion of the
wrongfulness where the act was due to the occurrence of an irresistible force or of an
unforeseen event beyond the control of the state, making it materially impossible in the
circumstances to perform obligation. A situation of force majeure precluding
wrongfulness only arises where three elements are met: (a) the act in question must be

6
William C.G. Burns, Potential Causes of Action for Climate Change Damages in International Fora: The
Law of the Sea Convention. http://policy.miis.edu/programs/BurnsFT.pdf <last accessed on 6/01/09>
7
Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992), Principle
15, United Nation Framework Convention on Climate Change, opened for signature May 9, 1992, Article
14(1), 31 ILM 849, Article 3(3)
8
Yearbook of the ILC, 1961, vol. II, p.46; Commentaries to the Draft Articles on Responsibility of States
for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session,
U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) [hereinafter ILC Commentary],
at p.183.
9
Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the
International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No.
10, U.N. Doc. A/56/10 (2001), Art. 1


3
brought about by an irresistible force or an unforeseen event, (b) which is beyond the
control of the State concerned, and (c) which makes it materially impossible in the
circumstances to perform the obligation.
Ratankas failure to prevent the environmental damage was due not to negligence
but to genuine inability to take action in the face of a sudden situation. It had acted with
diligence and carefulness in maintaining its safety standards. Subsequently, unseasonal
rains for over a month, and a massive flood hit the state, causing large scale damage and
destruction. The magnitude of these rains and the flood could not have been anticipated
by Ratanka. Ratanka cannot be held financially liable for harms in Anghore that resulted
from an unforeseeable natural disaster.
C. That Anghores own responsibility in causing the climatic changes in the region,
which resulted in the present environmental disaster, undermines any claim it seeks
to establish against Ratanka.
According to the Statute of the International Court of Justice (ICJ), 'general
principles of law recognized by civilized nations,' such as principles of equity are
considered to be a subsidiary source of international law.
10
In the North Sea Continental
Shelf cases, the ICJ described the concept of equity as being a direct emanation of the
idea of justice and a general principle directly applicable as law which should be
applied as part of international law to balance up the various considerations which it
regards as relevant in order to produce an equitable result.
11
Considerations of equity
demand that Anghore owns up its role in the natural disaster itself, which has resulted

10
Article 38 of the Statute of the International Court of Justice (1945).
11
North Se Continental Shelf Case, (1982) ICJ Reports 18. Individual opinion of Judge Hudson in the
Diversion of the Waters from the Meuse case, recognizing equity as a part of international law: (1937)
PCIJ Ser. A/B, No. 70, 76-7.


4
from the climatic change brought about by 200 years of incessant industrialization in
Anghore. In the context of climate change, developed countries have historically
contributed the most to the climate change problem and have the greater technological
and economic capacity to address the problem,
12
whereas developing countries have not
significantly contributed to climate change and are more vulnerable to its impacts
because they lack the resources to address the problem. Thus, in arguendo, even if
Ratanka is held responsible for the river pollution due to a natural disaster, the principle
of common but differentiated responsibilities
13
will require that Anghore shoulder any
costs of remediation. The rationale behind this is that because countries have contributed
unequally to the global degradation of the atmosphere in the past, their response to the
problem in the future must also be varied.
14
In Subrata Roy Chowdhury's words:
'contribution for amelioration must also be commensurate with different levels of
financial resources and technologies that the developed countries command. '
15

D. That Caristhan has no direct or indirect role in the damage caused and cannot be
held internationally liable for the same.
D1. That The disaster cannot be spelled out as a consequence of Caristhans aid to
Ratanka.
Caristhan did not provide technology or technical assistance to Ratanka in case of
the Monron Factory. Simply because Caristhan was able to develop a counter to break
down the spill in time to save its environment from damage, does not in any way serve as

12
PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 101 (2
nd
ed. 2002).
13
An equity principle, expressed in Rio Declaration, Principle 7.
14
Subrata Roy Chowdhury, Common but differentiated State Responsibility in International Environmental
Law: From Stockholm (1972) to Rio (1992), in SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE
322, 333-34 (Konrad Ginther et al. eds., 1995).
15
Id. at 334.


5
an indication that it had provided technical assistance to Monron factory. A mere
inference on Anghores part cannot be used as the basis to impute international liability
on Caristhan. Further, even in face of severe rains and massive flood, the oil drilling
units that had been set up by Caristhan withstood the effect and did not suffer destruction.
This is a clear evidence of the quality and standard of technology used by Caristhan.
Monron factory had not received technical assistance from Caristhan, and suffered severe
damage due to the natural disaster.
D2. That Imputing liability on Caristhan is inconsistent with the principles of
international liability
According to Article 2 of the ILC
16
Draft articles, there are two elements to be
satisfied in order to establish the existence of an internationally wrongful act of the State.
First, the conduct in question must be attributable to the State under international law and
secondly, for responsibility to attach to the act of the State, the conduct must constitute a
breach of an international legal obligation in force for that State at that time.
17
In the
instant case, as it is mentioned above that the disaster cannot be spelled out as a
consequence of Caristhans aid to Ratanka. Caristhan did not provide any assistance to
Ratanak in setting up of monron factory and therefore, this environmental damage cannot
be attributed to Caristhan. Moreover, Caristhan did not act in any way contrary to its
international obligations. Hence, Caristhan has no direct or indirect role in the damage
caused and cannot be held internationally liable for the same.

16
Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the
International Law Commission, Fifty-Third Session, U.N. G.A.O.R., 56th Sess., Supp. No. 10, U.N. Doc.
A/56/10 (2001), [hereinafter ILC Draft Articles], at p. 1.
17
Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74, p. 10., ILC
commentary, supra note 8 at p. 12


6
II. That Ratanka and Caristhan Are Not Responsible for the Violation of Anghores
Territorial Sovereignty
A. That Caristhan Is Not Responsible For Violation Of Anghores Territorial-
Sovereignty As There Was The Situation Of Necessity
A.1 Defence of necessity under customary international law
The Caroline incident
18
of 1837, though frequently referred to as an instance of
customary right to self-defence
19
, actually involved the plea of necessity
20
. The standard
of necessity is that, it should be instant, overwhelming and leaving no choice of means
and no moment of deliberation.
21
This prerequisite of necessity,
22
which is a part of
customary international law,
23
dictates that military force can be used in necessity only
when there are no alternative means of redress.
24
In the Gabkovo-Nagymaros Project
case of 1997, the International Court of Justice clearly expressed that the defence of
necessity was in fact recognised by customary international law
25
and that it was a ground
available to States in order to evade international responsibility for wrongful acts.
26

18
Letters from U.S. Secretary of State Daniel Webster to British Minister Mr. Fox, 29 BRITISH AND
FOREIGN STATE PAPERS 1129 (1840-41).
19
YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 184 (1988).
20
Report of the ILC (1980), UN Doc. A/35/10, 93, para. 24.
21
Supra note 17, Caroline incident, at p. 1137-38, ILC, Draft Articles, supra note 15.
22
MALCOLM N. SHAW, INTERNATIONAL LAW 1031 (5th ed., 2003).
23
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986 I.C.J. 14 176;
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 65, 4.
24
Dinstein, supra note 2, at p. 191.
25
Andreas Laursen, The Use of Force and (the State of) Necessity, 37 VAND. J. TRANSNATL L. 485 2004,
491.
26
Gabkovo-Nagymaros Project case (Hungary v. Slovakia), 1997 I.C.J 7, 40, para. 51; P. Okowa,
Defences in the Jurispru-dence of International Tribunals, in G. S. GOODWIN-GILL AND S. TALMON, THE
REALITY OF INTERNATIONAL LAW; ESSAYS IN HONOUR OF IAN BROWNLIE 401 (Oxford University Press,
1999); Hungary relied on a state of ecological necessity, Gabkovo-Nagymaros Project case, para 40, and
referred to the case of Pacific Fur Seals Arbitration, (1893) in J. B. MOORE, HISTORY AND DIGEST OF THE
INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I, 826 (Washington,
DC, 1898).


7
Moreover, the ICJ set out the elements of the plea of necessity as, it must have
been occasioned by an "essential interest" of the State which is the author of the act
conflicting with one of its international obligations; that interest must have been
threatened by a "grave and imminent peril"; the act being challenged must have been the
"only means" of safeguarding that interest; that act must not have "seriously impair[ed]
an essential interest" of the State towards which the obligation existed; and the State
which is the author of that act must not have "contributed to the occurrence of the state of
necessity". Those conditions reflect customary international law.
27

A.2 Defence of necessity under Conventional International law
This customary principle of defence of necessity has been embodied in Article
25
28
of the ILCs draft articles on state responsibility. As per this article a five point
criteria needs to be satisfied in order to plea the defence of necessity.
A.2.1 Essential Interest
The First condition is that necessity may only be invoked to safeguard an essential
interest which is to be identified
29
. But there is no fixed catalogue listing the essential

27
Laursen , Supra note 24 at p. 501; Caroline Foster, Necessity and Precaution in International Law:
Responding to Oblique Forms of Urgency, 23 NZULR 265 (2008), 266.
28
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in
conformity with an international obligation of that State unless the act:
a. is the only means for the State to safeguard an essential interest against a grave and imminent peril;
and
b. does not seriously impair an essential interest of the State or States towards which the obligation
exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
a. The international obligation in question excludes the possibility of invoking necessity; or
b. The State has contributed to the situation of necessity.
29
Supra note 19 at para. 32; JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON
STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARY 183 (2002); J. J. A. Salmon, Faut-il
codifier ltat de ncessit en droit international, in J. MAKARCZYK, (ED.), ESSAYS IN HONOUR OF JUDGE
MANFRED LACHS 250 (Martinus Nij-hoff, 1984).


8
interests a State may refer to.
30
It is a well established view that the criterion of essential
interest need not concern the very existence of the State;
31
and clearly, in principle, it is
not limited to matters of life and death, but also extends to the adequate functioning of the
State.
32
This defence has been invoked to protect a wide variety of interests
33
, including
safeguarding the environment
34
and ecological interests.
35
The extent to which a given
interest is 'essential' depends on all the circumstances, and cannot be prejudged."
36
In the
instant case, the economy of the Republic of Caristhan is dependent on Mithali River
37

and due to the chemical spill; the water is undrinkable and unusable for any human or
industrial activity
38
. The essential interest of Caristhan is to protect its people and its
economy from an environmental disaster which has seriously damaged its environment
and ecology
39
. Therefore, it was necessary to take such an action out of necessity in order
to safeguard its essential interest.
A.2.2 Grave and Imminent Peril

30
Okowa, Supra note 25; Gabkovo-Nagymaros Project case, 1997 I.C.J., 7, para. 53; Report of the ILC
(1980), UN Doc. A/35/10, para. 32.
31
R. Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3 YALE HUM. RTS &
DEVELOPMENT L. J. 15 & 26 (2000); Gabkovo-Nagymaros , para. 53.
32
R. Ago, The Internationally Wrongful Act of the State, Source of International Responsibility, Eighth
Report on State Responsibility, Addendum (1980), ILC, 32
nd
sess., UN Doc. A/CN.4/318/Add.5, 8, para. 2.
Report of the ILC (1980), UN Doc. A/35/10, para. 32.
33
ILC Commentary, supra note 8 at p. 145
34
Nuclear Weapons Advisory Opinion, 1996 I.C.J. 241, 242, U 29
35
Gabkovo-Nagymaros, 1997 I.C.J. 7.; Publicist Ago in his report also gives examples of the sort of
interests that would satisfy article 33 [now 25], including a State's "political or economic survival, the
continued functioning of its essential services, the survival of a sector of its population, and the
preservation of the environment of its territory or a part thereof, See Addendum to the Eighth Report on
State Responsibility, by Mr. Roberto Ago, U.N. Doc. A/CN.4/318/ADD.5-7, reprinted in 1980 Y.B. INT'L
L. COMM'N vol. II, pt. 1, 13, 16, para. 7, U.N. Doc. A/CN.4/SER.A/1980/Add.l (Part 1) [hereinafter Ago
Report] para 2
36
Crawford, supra note 28 at p. 183.
37
Compromis, 4.
38
Compromis, 12.
39
Compromis, 16.


9
The second condition to be satisfied is that the essential interest is to be
threatened by a grave and imminent peril. This condition is highly fact-specific.
40
The
international court of justice declared that the concept of imminence goes far beyond the
concept of possibility
41
. A peril must be imminent in the sense of proximate; however, a
peril that appears only in the long term may still be imminent at the point in time when it
is established that the realisation of that peril is certain and inevitable, albeit far away.
42

The ICJ also stated that the mere apprehension of peril would not suffice; danger must
not be merely contingent.
43
Regardless, it is required that the invoking State can establish,
based on the evidence available at the time, that the threat will at some point inevitably be
realised.
44
The "peril has to be objectively established and not merely apprehended as
possible."
45
In the instant case, there is no doubt that the danger was grave. It is also not
doubtful that the peril was imminent. A warning was issued that the water of the
contaminated Mithali River continued to move downstream and it could enter Caristhan
within a month
46
. It was an established fact which was going to realize inevitably.
Therefore, it was right on the part of Caristhan to conduct such actions out of necessity.
A.2.3 Only Means to Safeguard Interest
Thirdly, the course of action taken must be the only way available to safeguard
the essential interest. The plea is excluded if there are other (otherwise lawful) means

40
Boed, supra note 31 at p. 28.
41
Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7.
42
Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7., at 41-2, para. 54; Boed, Supra note 30 at p.
28; Daniel Dobos, The Necessity Of Precaution: The Future Of Ecological Necessity And The
precautionary Principle, 13 FORDHAM ENVTL. L.J. 375 (2002), 381.
43
Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, 41-5, paras. 54-6, Crawford, Supra note, 29
at 183-4; See further the Neptune case, where it was said that (in French translation) la ncessit ne doit
pas tre imaginaire elle doit tre relle et pressant, see quote in Salmon, Supra note 28 at p. 253.
44
Crawford, Supra note 12 at p. 184; see Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, 43-
5, para. 56.
45
ILC Commentary, supra note 8 at p. 202.
46
Compromis, 15.


10
available, even if they may be more costly or less convenient.
47
In the instant case,
Caristhan had exhausted other diplomatic options of safeguarding its essential interest. It
acted swiftly in requesting Anghore to provide all support in containing the spread of the
spill but Anghore responded by saying that it would provide all assistance but insisted
that Caristhan accept responsibility. There was a full possibility of losing precious time in
these back and forth of statements between the two nations.
48
As Professor Schacter put
it, "in a case involving imminent danger., it would be unreasonable to maintain the
continued pursuit of peaceful measures.
49
Moreover, the time factor in such operations is
of extreme importance: speed of action is essential if the operation is to be successful and
lives preserved. As has been pointed out, "a failure of peaceful attempts to bring about a
solution, leading to a delay in the rescue operation, might actually jeopardize it."
50
The
only means to safeguard Caristhans essential interest was to carry out the test and since
Aghore was not assisting caristhan in containing the spill
51
, the only option left was to
conduct this operation out of.
A.2.4 Balancing of Interest
Fourthly, it is required that the action does not seriously impair an essential
interest of another State.
52
This requirement involves the balancing of the competing
interests of two States: on the one hand, the interest in the name of which the defending
State invokes necessity and, on the other, the harm done to the interest of the State

47
Crawford, supra note 29at p. 184; Shaw, supra note 22 at p. 712; Salmon, supra note 29 at p. 245.
48
Supra note 45.
49
O. Schacter, The Right of States to Use Armed Force, 82 MICH.L.R. 1620 (1984), 1631.
50
J. Weiler, Armed Intervention in a Dichotomized World: The Case of Grenada, in A. CASSESE (ED.), THE
CURRENT REGULATION OF THE USE OF FORCE 247, 250-51 (1986).
51
Supra note 45.
52
Shaw, supra note 22 at p. 712; Crawford, supra note 29 at p. 184. This was confirmed in Gabkovo-
Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, at 46, para. 58.


11
claiming a breach of international law.
53
. In the instant case, as already pointed out, the
essential interest of Caristhan was to safeguard its ecology, environment and peoples and
the same has been recognized as essential interest by the ICJ. On the other hand Anghore
is evoking its essential interest of territorial sovereignty. But it is submitted that the lasting
benefits of an intervention designed to save lives and environment outweigh temporary
impairment of a state's territorial integrity.
54
Moreover, territorial sovereignty is not to be
considered an 'essential' interest in every case, nor can it only be 'seriously' impaired. In
its commentary on Article 25, the International Law Commission
55
stressed that 'the
interest relied on must outweigh all other considerations, not merely from the point of
view of the acting State but on a reasonable assessment of the competing interests.
56
On a
reasonable assessment Caristhans essential interest clearly outweighied the interest of
Anghore as it is definite that the spill was about to enter Caristhan and Anghore was not
assisting Caristhan in containing the spill.
A.2.5 Contribution to the State of Necessity
Pursuant to Article 25, paragraph 2(b)
57
, necessity may not be invoked by a State
as a ground for precluding wrongfulness if the State has contributed to the situation of ne-
cessity or provoked, either deliberately or by negligence, the situation to come about.
58
The
contribution to the situation of necessity must be sufficiently substantial and not merely

53
R. Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3 YALE HUM. RTS &
DEVELOPMENT L. J. 18 (2000).
54
R. Falk, The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent
States, 5 HOW. L. J. 163 (1959), 167.
55
Supra note 16.
56 Ole Spiermann, Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens, 71
NORDIC JOURNAL OF INTERNATIONAL LAW 523 (2002), 525. In the Gabkovo-Nagymaros case the Court
affirmed the need to take into account any countervailing interest of the other State concerned: Gabkovo-
Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7at p. 46, para. 58
57
ILC State responsibility Article, supra note 16.
58
ILC State responsibility Article, supra note 16, Article 25(2)(b); Salmon, supra note 28, at p. 262.,
Gabcikovo-Nagymarcos Project ((Hungary v. Slovakia.), 1997 I.C.J 7, at 46.


12
incidental or peripheral.
59
As has already been proved, Caristhan was not responsible
directly or indirectly in the Monron Factory chemical breach. Therefore, the actions of
caristhan clearly established the need to act in the defence of necessity and thus preclude
wrongfulness of Caristhan.
B. That the Use of Military Bases By Caristhn In Rantankan Territory Does Not
Cast Any Responsibility On Ratanka
B.1 That the act of Caristhans Military is not attributable to Ratanka
According to Article 2 of the ILC
60
Draft articles, there are two elements to be
identified in order to establish the existence of an internationally wrongful act of the State
i.e., first, the conduct in question must be attributable to the State under international law
and secondly, for responsibility to attach to the act of the State, the conduct must
constitute a breach of an international legal obligation in force for that State at that time.
61

According to Oppenheim, Armed forces are organs of the state which maintains
them, being created to maintain the independence, authority and safety of the state. They
have that status even when on foreign territory, provided that they are there in the service
of their state, and not for some private purpose
62
. Caristhans Military was definitely in
the service of its country and therefore, its actions to maintain safety of its country makes
it caristhans organ only. Therefore, The Caristhans Military force cannot be attributed
to Ratanka, and hence, it is not responsible for the military actions of Caristhan.

59
ILC Commentary, supra note 8 at p. 205, Ian Brownlie & C.J. Apperley, Kosovo Crisis Inquiry:
Memorandum on the International Law Aspects, 49 INT'L & COMP. L.Q. 878 (2000), 903
60
ILC Draft Articles, supra note 16 at p. 1.
61
Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74, p. 10., ILC
commentary, supra note 8 at p. 12
62
OPPENHEIM'S INTERNATIONAL LAW 1155 (Sir Robert Jennings & Sir Arthur Watts eds., 9
th
ed. 2003).


13
Moreover according to article 8
63
of the ILC article on state responsibility, for an
act to be attributable on a state, that state must have control over it. The ICJ stated in the
Namibia case
64
that, "Physical control of a territory and not sovereignty or legitimacy of
title, is the basis of state liability for acts affecting other states
65
. Further, according to
many jurists
66
, the overriding principle in this field is that, any force operating on a
foreign soil is in no way subject to the territorial sovereign and exercises an exclusive
right of jurisdiction over its members.
67
Therefore, the use of military base in Ratanka
also does not cast any responsibility on Ratanka as it does not have any control over that
military base and its activities.
III. That the Anesians are not Ratankaians but refugees and need to be protected by
Anghore
A. That the Anesians are not Ratankaians
It is stated that Anesians are not Ratankians as the treaty
68
purporting to establish
the sovereignty of Anesians on Ratanka is vitiated by the application of the Doctrine of
Desuetude. In international law, the long standing and consistent practice by parties to

63
ILC Draft Articles, supra note 16 at p. 3.
64
1971 I.C.J. Rep. 16, p.54.
65
Adrian A. Barham, The Establishment And Conduct Of Extra-Territorial Military Bases In Peacetime-
Some International Law Considerations, 31 B. L. J. 7 (1999), 15.
66
ALINE CHALUFOUR, LE STATUT JURISDIQUE DES FORCE ALLIES PENDANT LA GUERRE 1927 (1914-1918);
LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW 107 (6
th
ed.); Bathurst, Jurisdiction over friendly armed
forces, the American Law, 23 B. Y. B. I. L., 339.
67
WHEATON ELEMENTS OF INTERNATIONAL LAW 95 & 99; WESTLAKE, INTERNATIONAL LAW 265 (edition
1919); HALL, INTERNATIONAL LAW 7
th
Edition, Sec. 56; King, Jurisdiction over friendly armed forces, 36
AJIL, 539; King, Further Developments concerning jurisdiction over friendly armed forces, 40 AJIL 257;
Schwelb, the Jurisdiction Over the Members of the Allied Forces in ret Britaint, Cezch Year Book of
International Law, 1942, p. 147.
68
Compromis, 7.


14
a treaty inconsistent with the treaty can have the effect of terminating the treaty
69
. This is
the crux of the Doctrine of desuetude. In Committee on Legal Ethics v. Printz
70
, the
Supreme Court of Appeals of West Virginia postulated a methodology for determining
whether a rule or instrument of law had fallen into desuetude. The main criteria were
that (a) there must be open, notorious, and pervasive violation for a long period; and
(b) there must be a conspicuous policy of non-enforcement
71
.
The Anesians have never claimed any citizenship
72
. This act of not claiming any
citizenship is clearly inconsistent with the treaty which envisages the Anesians to be
under Ratankan sovereignty. Hence, it can be validly deduced that the act of the Anesians
not to stake a claim on citizenship rights even two hundred years
73
after the signing of the
treaty is ample proof of open, notorious and pervasive violation for a long period.
Further, there has been difficulty in determining Citizenship of the Anesians
74
. Legal
experts view that there is doubt as to whose citizens they really are
75
. It can be stated that
there is indetermination with regard to the citizenship of Anesians both in Ratanka and
Anghore even after a treaty placing the Anesians under Ratankan Sovereignty, which is a
clear pointer towards the non-enforcement of that treaty. This indetermination continues
even after 200 years of the signing of the treaty, amply proving the presence of a

69
Justice Jitendra N. Bhatt, Dynamics and Dimensions of Doctrine of Desuetude, (2004) 4 SCC (Jour) 21;
I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 614-15 (3
rd
ed., 1979); G. SCHWARZENBERGER,
A MANUAL OF INTERNATIONAL LAW, 21 (6
th
ed., 1976); A. VAMVOUKOS, TERMINATION OF TREATIES IN
INTERNATIONAL LAW 266-67, 276, 302-03 (1985); A. MCNAIR, THE LAW OF TREATIES 508, 516-18 (1961);
M. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES at 213-14 (1985).
70
416 S.E.2d 720 (W. Va. 1992).
71
Ibid at p. 726.
72
Compromis, 7.
73
Ibid.
74
Ibid.
75
ibid.


15
conspicuous policy of non-enforcement. Hence, the treaty has fallen into desuetude
and as such stands nullified. Therefore, Anesians are not Ratankians.
B. That the Anesians are Refugees and therefore, they are entitled to refugee
protection in Anghore.
B.1 That the Anseians are Refugess
It is stated that as per Conclusion No 22
76
of the Executive Committee (EXCOM)
of the UNHCR's
77
program, States are obligated to protect asylum seekers in large scale
influxes
78
. The EXCOM Conclusion No 22 basically mandates that for the purposes of
the application of Article 33 of the Refugee Convention every person migrated by large
scale influx shall be conferred with the refugee status
79
. A similar situation is present
here as more than 1,00,000 lakh Anesians have crossed into Anghore
80
. Therefore, these
Anesians shall be treated as Refugees.
B.2 That the Anseians should be provided protection
According to Article 33 of the Geneva Convention relating to the status of
Refugee 1951, which concerns the principle of Non-refoulement, a receiving State cannot

76
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 1997 at Section II, Paras. 4-5 (called
Standing Committee 1997).
77
The EXCOM is a distinct body of the UN and its Conclusions have interpretive value for the 1951
Refugee Convention, Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of
Non-Refoulemmt Opinion, in ERIKA FELLER, VOLKER TURK AND FRANCES NICHOLSON (EDS.), Refugee
Protection in International Law 28-29 (Cambridge University Press, 2003).
78
Conclusion No. 22 (XXXII), 1 981, GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 480-483 (2
nd

Edition, 1996).
79
Tom Clark, Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative
Interpretation, 16 INTL J. REFUGEE L. 584 (2004), 589.
80
Compromis, 13.


16
expel refugees out of its territory.
81
. So, according to the law enunciated in Conclusion
no.22 of the EXCOM Anesians are atleast protected from being returned back.
Various Regional Conventions
82
have endeavoured to widen the definition of a
refugee. From the above conventions, there is clear evidence of the Practice of civilized
states, which confer the status of refugee not only on the grounds provided in the 1951
Convention but also on grounds viz: circumstances which have seriously disturbed
public order. Ratanka was already reeling under a Humanitarians crisis before it was hit
by massive flash floods
83
, which was the imminent cause for the migration of Anesians
into Anghore. Thus, the humanitarian crisis coupled with massive flash floods, which
destroyed vast property and killed many people can be considered as the
circumstances/events which have seriously disturbed public order and which led to the
flight of the Anseians. Hence, the Anseians should be considered as refugees. The norm
of Non-refoulement is part of customary international law, thus binding on all States

81
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion. 2. The benefit of the present
provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as
a danger to the security of the country in which he is, or who, having been convicted by a final judgement
of a particularly serious crime, constitutes a danger to the community of that country.
82
The Organization of African States Convention Governing the Specific Aspects of Refugees Problems
in Africa 1969 (OAU Convention)
82
extends the definition of a refugee in the 1951 Convention to every
person who was compelled to leave his country of origin on account of external aggression .......or events
seriously disturbing public order.; The 1984 Cartenga Declaration on Refugees
82
which was adopted at a
colloquim held in co-operation with UNHCR
82
agreed to extend the definition of refugee. In this the Latin
States agreed to include those who have fled their country because their lives, safety or freedom have been
threatened by generalized violence......or other circumstances which have seriously disturbed public
order
82
in the definition of a refugee already provided in the 1951 Convention.; The 1966 Bangkok
principles Concerning Treatment of Refugees
82
also endeavoured to widen the scope of the definition, The
above enunciations provide evidence of the Practice of civilized states, which confer the status of refugee
not only on the grounds provided in the 1951 Convention but also on grounds viz: circumstances which
have seriously disturbed public order.
83
Compromis, 11.


17
whether or not they are party to the 1951 Convention.
84
Anseians being refugees, are
protected under the customary international law principle of Non-refoulement.
C. That under Human Rights Norms, Anghore is obligated to provide protection to
Ansieans
In the Human Rights Law Regime, it is obligatory on states to protect the person
present in its territory if there is a real chance of a violation of his fundamental rights on
return to his state of Origin
85
. The International Covenant on Civil and Political Rights
(ICCPR)
86
has been interpreted in case law by the UN Human Rights Committee
(HRC)
87
as protecting a non-citizen from forcible return when it is predictable that
aspects of the right to life would be violated
88
. There has been considerable damage in
Ratanka which has severely crippled the lifeline and livelihood of the Anesians. Hence,
any action which may return the Anesians back to Ratanka from Anghore would violate
their right to livelihood and consequently their right to life. As per the case law of the
human rights treaty bodies, the State which exposes a person to a foreseeable real risk of
the violation of a fundamental right by expulsion is itself held to have violated the

84
Although questions remained as to the customary nature of the norm of non-refoukment during the Cold
War era, it is clear that since the end of the Soviet era, the norm quickly attained a customary nature. For
practice before 1989, see GUNNEL STENBERG, NORT-EXPULSION AND NON-REFOULEMENT, 288 (1989); for
practice after 1989, see G. S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 166-167 (2nd ed.,
1996).
85
Tom Clark, Rights Based Refuge: The Potential Of The 1951 Convention And The Need For
Authoritative Interpretation, 16 INTERNATIONAL JOURNAL OF REFUGEE LAW, 584-608, 590.
86
Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A
(XXI) of 16 December 1966. Entry into force on 23 March 1976, in accordance with Article 49.
87
The Human Rights Committee is a United Nations body of 18 experts that meets three times a year to
consider the five-yearly reports submitted by UN member states on their compliance with the International
Covenant on Civil and Political Rights, available at http://www2.ohchr.org/english/bodies/hrc/index.htm,
<last accessed on 6/1/2009>.
88
Ng v. Canada, Communication No. 469/1991, Views 7 Jan. 1994, UN Doc. CCPR/C/49/D/
469/1991; Judge v. Canada, Communication No. 829/1998, Views 20 Oct. 2003, UN Doc. CCPR/
C/78/D/829/1998.


18
person's right. Since Anseians are not Ratankians, there is no question of any
responsibility on the part of Ratanka to take them back.
D. In Arguendo, even if Anseains are Ratankians, then also Anghore cannot expel
them from its Territory
Even if Anesieans are Ratankaians, then also Ratanka doesnt have the responsibility to
take them back. Customary international law
89
imposes a duty on States to admit their
nationals, being the corollary of the right of States to expel foreign nationals
90
. In the
instant case as the Anesians are refugees, the right of Anghore to expel these foreign
nationals stands vitiated. Thus, the duty of Ratanka, which is the corollary of Anghores
right, also gets vitiated. Hence, Ratanka has no duty to take the Anseians back.
E. That Ratanka and Caristhan are under no obligation to pay compensation to
Anghore for the cost incurred by it on the welfare of Anseians.
Since, it has been conclusively proved in the above arguments that Aneseians are
not Ratankaians but refugees entitling protection in Anghore. Therefore, Ratanka has no
obligation to pay compensation to Anghore rather it is the international obligation of
Anghore to provide care and protection to Anseians. So, the financial costs that are
incurred by the Republic of Anghore in course of such protection, has to be borne by it
and not by ratanka or any third country.

89
Francois, Grandlijnen van het Volkenrecht, 1967, p 233; VAN PANHUYS, THE ROLE OF NATIONALITY IN
INTERNATIONAL LAW (1959), 55-56; R. PLENDER, INTERNATIONAL MIGRATION LAW (1998) p. 133; L.B.
SOHN AND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992).
90
G.S. Goodwin-Gill, Voluntary Repatriation-Legal and Policy Issues, in G. LOESCHER & L.
MONAHAN, EDS., REFUGEES AND INTERNATIONAL RELATIONS 259 (1989); G.S. GOODWIN-GILL,
INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES 201-1, 136-7; Plender, ibid at
133-4.


19
Since, Anesians had never belonged to Caristhan so question of compensating
Anghore just does not arise. The dispute with regard to the nationality of Anesians has
always been confined to Anghore and Ratanka.
In Arguendo, if technological assistance has indeed been provided by Caristhan to
the chemical facility, then also a fallout like a refugee situation is something that could
not have been foreseeable. The guiding principle in tortuous liability is that damage
caused by an act is too remote if a reasonable man would not have foreseen them
91
and as
such any damage caused by such an act will not qualify for compensation. The migration
of Anesians as a consequence of such a spill is too remote to have been foreseen by any
reasonable man. Thus, it needs to be understood that when Caristhan provided technology
to Ratanka the only foreseeable damage that Caristhan could have imagined incase of a
failure of technology is a chemical spill. The remoteness of the damage, abdicates
Caristhan of any liability.
IV. That Caristhan Has Not Violated its Comity Obligations Under International
Law
A. Comity is not a rule of law
There has been no violation of International Comity obligations by the Republic
of Caristhan. There is a lack of agreement amongst nations as to whether comity is at all a
rule of law
92
. Comity is not a rule of law, but one of practice, convenience and
expediency and its obligation is not imperative.
93

91
Rigby v. Hewitt, (1850) 5 Ex. 240, p. 243; Greenland v. Chaplin, (1850) 5 Ex. 243, p. 248.
92
Joel R. Paul, Comity in International Law, 32 HARV. INTL L. J. 14 (1991).
93
Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488-489.


20
In the instant case, the allegation made by the Anghore that Caristhan has violated
the international comity obligations by not providing assistance cannot be sustained, as
comity as a rule of international law is not stable. Existence of comity as a doctrine of
international law being in doubt, there is no way there can be an obligation to adhere to
the same.
B. In Arguendo, even if comity is a rule of law, then also Caristhan has not violated
its comity obligations
Even if the existence of international comity obligations as a rule of international law is
established, then also Caristhan has not violated its comity obligations but rather it is
Anghore which has violated its international comity obligations.
In the instant case, when Ratanka realized and notified Anghore about the spill,
there was nothing at all that could be done about it.
94
On the other hand, when chemicals
were about to enter Caristhan, assistance was asked from Anghore so that Caristhn could
protect its people and its economy from an environmental disaster. But, Anghore
responded by saying that it would provide all assistance on the condition that Caristhan
accepted responsibility for the spill
95
. When Caristhan was faced with the grave and
imminent threat of an environmental disaster, instead of cooperating, Anghore was
adamant on getting Caristhan to accept responsibility for the same. This sort of high-
handedness and armed twisting tactics employed with a country faced with such a grave
and imminent threat hits at the core of the principle of comity obligation that is
international cooperation. Hence, it can be concluded that it is Anghore and not Caristhan
which has violated its comity obligations.

94
Compromis, 15.
95
Compromis, 12.


xv
CONCLUSION

Wherefore in light of the facts of the case, arguments advanced and authorities cited, this
Court may be pleased to adjudge and declare that-

I. Ratanka and Caristhan bear no responsibility whatsoever for the
environmental damage, and hence, cannot be held liable to pay any
compensation.
II. Ratanka and Caristhan are not responsible for the violation of Anghores
Territorial Sovereignty
III. The Anesians are not Ratankaians but refugees and need to be protected by
Anghore
IV. Caristhan has not violated its Comity obligations under International Law

All of which is respectfully submitted
___________________________________
___________________________________
Agents for the Respondents.

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