International Environment Moot Court Competition, 2012 TEAM CODE: 12 18 IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE QUESTIONS RELATING TO A NUCLEAR ACCIDENT AND SOVEREIGN DEBT

FEDERAL STATES OF AMUKO V REPUBLIC OF RENTIERS

MEMORIAL FOR THE APPLICANT

THE INTERNATIONAL ENVIRONMENT LAW MOOT COURT COMPETITION, 2012

I

International Environment Moot Court Competition, 2012 TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………….ii-iv LIST OF ABBREVIATION……………………………………………………………v INDEX OF AUTHORITIES………………………………………………………….vi-xi STATEMENT OF JURISDICTION…………………………………………………..xii QUESTIONS PRESENTED…………………………………………………….…….xiii STATEMENT OF THE FACTS……………………………………………….………xiv SUMMARY OF THE ARGUMENT………………………………………..…………xv

ARGUMENT 1. AMUKO HAS THE JUS STANDI TO BRING THE PRESENT CLAIM………………………..1 1.1 Amuko Has The Standing Regarding The First Claim. ……………………………………….1 1.2 Amuko Has The Standing Regarding The Second Claim. ……………………………………1 1.2.1 Amuko companies are the nationals of Amuko. ………………………………………...1 1.2.2 Local remedies have been exhausted…………………………………………………….2 2. RENTIERS SHALL BE LIABLE FOR COMPENSATION ACCORDING TO ARTICLE 10 OF THE IAEA ASSISTANCE CONVENTION………………………………………………………3 2.1 Federal State of Amuko suffered damages as a result of assistance provided to the Republic of Rentiers…………………………………………………………………………………………3 2.2 There is a legal obligation of Republic of Rentiers to reimburse Amuko for the compensation program established by the Amuko Congress………………………………………………….4

II

International Environment Moot Court Competition, 2012 2.2.1 There was no intent of willful harm by Amuko during the accident…………………….4 2.3 The restrictive interpretation of Article 10 of the IAEA Assistance Convention is against the spirit of the international law. ………………………………………………………………….5 2.3.1 Treaty must be interpreted as a whole.………………………………………………….5 2.3.2 Treaty must be interpreted in a good faith………………………………………………6 3. THE REPUBLIC OF RENTIERS HAS VIOLATED INTERNATIONAL LAW BY FAILING TO COMPENSATE AMUKO ………………………………………………………………………...6 3.1 The Act of Rentiers is a wrong under 1963 Vienna Convention on Civil Liability for Nuclear Damage…………………………………………………………………………………………7 3.2 Republic of Rentiers had to compensate Amuko under Convention on Supplementary Compensation for Nuclear

Damage………………………………………………………………………………….……..8 3.3. Republic of Rentiers is under the obligation to the general international principles…………...9 4. RENTIERS EXPROPRIATED WITHOUT JUST COMPENSATION THE INVESTMENTS OF AMUKO COMPANIES IN THE SOVEREIGN BONDS OF RENTIERS THROUGH DEFAULT AND DEBT RESTRUCTURING. ……………………………………………………………….10 4.1 Purchase of Sovereign Bonds Amount To Investment……………………………………...…10 4.2 The Action of Rentiers Amounted Expropriation ……………………………………………..12 4.3 Rentiers Did Not Provide Adequate Compensation …………………………………………..13 4.3.1 Payment of compensation only in accordance with domestic law is in violation of principles of international investment law. ……………………………………………..14 4.3.2 The aliens must be compensated according to international minimum standard. …………………………………………………………………………………………...15
III

19 5..19 5..2 It is inappropriate for Rentiers to invoke the principle of force majure for the closure of the nuclear plants…………………………………………………………………………………....4 Breach of State Contract Incurs State Responsibility…………………………………………16 5..2 The situation of force majeure is due to the conduct of the State invoking it……………………………………………………………………………. ……………………………………………………………………………………..... CONCLUSION/PRAYER……………………………………………………………………….20 6. Precautionary principle does not justify the act of Nuclear power plant closure……………...1 The change of circumstances was present while concluding the treaty……………….2.International Environment Moot Court Competition...1 Rentiers Cannot Invoke The Plea Of Necessity To Preclude Itself From its International Obligation.17 5.19 5.. 2012 4..3.. THE DEFAULT IN SOVEREGN BOND IS NOT EXCUSED BY ANY OF THE DEFENSES AS PLEASED BY THE RESPONDENT... ……………………………………………………………17 5.2.22 IV .

RIAA Rentiers-Amuko Bilateral Business Investment Rentiers Nuclear Regulatory Agency Amuko Ministry of Energy International Atomic Energy Agency International Law Commission International Law Review International Court of Justice Permanent court of International Justice United Nations North American Free Trade Agreement Organization for Economic Cooperation and Development Elettronica Sicula General Assembly Resolution Reports of International Arbitral Awards V . 2012 List of Abbreviations RABBIT RNRA AME IAEA ILC ILR ICJ PCIJ UN NAFTA OECD ELSI G. Res.A.International Environment Moot Court Competition.

(2009) Inc v. Mexico (2000) Mondev International LTD v. (ELSI) (United States of America v. v. The Slovak Republic (1999) Chorzów Factory Case (1928) De Sabla Case (1934) Fedax N. 15 (1988) Azurix Corp. PCIJ.S. Ltd. Venezuela (1998) Glamis Gold. Canada (2000) Israel v. Republic of Guinea v. v. Partial Award No. A.P. 1995.A. Italy). 310-56-3. Democratic Republic of Congo (Preliminary Objections ). United States of America (2002) New Zealand v. Rainbow Warrior (New Zealand v. Bulgaria.International Environment Moot Court Competition. Iran. United States of America (2003) Ahmadou Sadio Diallo. (2007) • Amoco International Finance v. (1936) Metalclad Corporation v. 1989 Case Concerning Elettronica Sicula Spa (ELSI) . United States.V. Losinger Case. v. ICJ Pleadings (1955). v. France. ICJ Rep. The Argentine Republic Case Concerning Elettronica Sicula S. (1990) VI • • • • • • • • • • • • • • • . 2012 INDEX OF AUTHORITIES Case Laws • • ADF Group Inc. ICJ Reports. at Paras 61 and 62 (1989) Ceskoslovenska Obchodni Banka. v. France).

Russian Indemnity case Saluka Investments BV (The Netherlands) v. 2009. 1994 Texaco v Libya (Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libya) (1977) Texaco v. ESSAYS AND JOURNALS • Andrea Laura Mackielo ILSA Journal of International & Comparative Law Fall. Inc. 2012 • • Republic of Hungary v. 68 (1988).B. Bowett. I.International Environment Moot Court Competition. LILLICH. and Raymond L. Remarks: New Developments in International Environmental Law. PCIJ. 85 Am. • Cornelius F. R. State Contract with Aliens. Core Rules of International Environmental Law.J. (1930) Territorial Dispute (Libyan Arab Jamahiriya/Chad). Reports. 401. The Czech and Slovak Republic. 1997. Daniel Bodansky. Y. United States of America • • • • • • • • ARTICLES.C. Libya The Corfu Channel Case (U. THE VALUATION OF NATIONALIZED PROPERTY IN INTERNATIONAL LAW 58. Loewen v. 16ILSA J Int'l & Comp L 257. Limitations upon the Power of a State to Determine the Amount of Compensation Payable to an Alien upon Nationalization. 59 (1975) • D. Proc.).K. Alb. Jr. 413 (1991) • VII . Soc'y Int'l L. The Czech Republic Saudi Arabia v Arabian-American Oil Co Shufeldt Case. 59 BRIT. v.B. INT‟L L 49. Murphy. (1949) The Loewen Group. Judgment. ICJ Reports.

657 (2004) • Denver Journal of International Law and Policy. Fullem. • H. • Dupuy. 2012 • Daniel Bodansky.Shawcross. 53 Emory L. 10 (2004) VIII . OECD Doc. in Jaye Ellis. 102 RECUEIL DES COURS 339 (1962). Draft Conventions and Comments on Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners(1929). Rev. 35 Denv. Overexploitation of Valuable Resource? New Literature on the Precautionary Principle. Tarullo.J. 448 (2006). No.W. 33 Env't 4. Scientific Uncertainty and the Precautionary Principle. J. & Pol'y 13 2006. 31 Willamette L. The Problems of Foreign Investment in International Law. • Harvard Research. 17 (2004) Gregory D. 8 (Sept. Int'l L. • • Georgetown International Environmental Law Review.International Environment Moot Court Competition. Liability and Compensation for Harm Caused by Nuclear Activities. Liendo. Int'l L. 495 (1995). 23 AJIL Special Supp. ‘Sovereign Debt Litigation Problems in the United States: A Proposed Solution” 9 Or. 17 European Journal of International Law 445. ‘Conference on Sovereign Debt Restructuring: The View From The Legal Academy: Neither Order Nor Chaos: The Legal Structure Of Sovereign Debt Workouts. 1991) • Daniel K. 2004/4. Rev. 107( 2007) • • ICSID Review-FILJ 251 (1999) Indirect Expropriation and the Right to Regulate in International Investment Law. • Horacio T. 167. The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty.

Am. The Precautionary Principle As A Norm of Customary International Law.Y. J. 495 ( 2008) • Lisa Bennett . TREATISES AND OTHER MATERIALS IX . L. Some International Law Problems Posed by the Nationalization of the Copper Industry in Chile. 75 AJIL 553 (1981). Int'l L.com/2008/09/mst. 718-719 (1973). 2012 • International Minimum Standard of Treatment. • Orrego Vicuna.U. Refining the Precautionary Principle in International Environmental Law. 74 Va. 1011 (1988). • Owen McIntyre and Thomas Mosedale. & Vern R. 14 Va. Rev. Jr. “Are Tradable Carbon Emissions credits investments? characterization and ramifications under international investment law’ 85 N.L. A Law of the Future or A Law of the Past? Modern Tribunals and the International Law of Expropriation. available at http://asadip. • Rudolf Dolzer. Norton.M.files. L 711.pdf • James E. 1581 (2010). 9 Journal of Environmental Law 221. Denver Journal of International Law and Policy Winter. & Pol'y 67. • P. • State Responsibility for The Exportation Of Nuclear Power Technology. Envtl. 67 AM. Walker. BOOKS. L. ‘Responsibility for Abusive Granting of Sovereign Loans’ 14 Law & Bus. (1991) 85 AJIL 474. Anthony D’Amato Northwestern University School of Law Kirsten Engel University of Arizona. 423 (1995) • Juan Pablo Bohoslavsky. 231 (1997). • State Responsibility and Liability for Nuclear Damage. 2006. 35 Denv. Hickey. Adriana Sánchez Mussi. Rev.International Environment Moot Court Competition. INT‟L. Rev.wordpress.J. New Foundations Of The Law Of Expropriation Of Alien Property. J.

8th Ed. 2012 • Alina Kaczorowska .. • • J. UN DOCUMENTS. 1996) • INTERNATIONAL LAW. First Indian Reprint 2003 • Shaw. Brower & J. Ltd. • G. THE INTERNATIONAL LAW OF EXPROPRIATION AS REFLECTED IN THE WORK OF THE IRAN-U. Fifth Ed. Co. CLAIMS TRIBUNAL (Dordrecht: Kluwer Academic. 1994) • OPPENHEIM’S INTERNATIONAL LAW.. Al.S. Aldrich. Diehl.. Second Ed. DECLARATIONS • Charter for Economic Rights and Duties X .H. (Sir Robert Jennings and Sir Arthur Watts eds. Boulder London 2000. 2005. Butterworth’s Tenth Edition 1998. Cambridge University Press. .) Universal Law Pub.D.N. edited by Charlotte Ko. Malcolm N. INTRODUCTION AND PART I. West publishing Co. INTERNATIONAL LAW CASES AND MATERIALS. THE JURISPRUDENCE OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL (Oxford: Clarendon Press. "TEXTBOOK ON INTERNATIONLA LAW".. 1987 • Mouri. INTERNATIONAL LAW. INTERNATIONAL INSTRUMENTS. 2004. American Casebook Series. Sixth Edition (oxford university press: oxford 2007). And Paul F. Sixth Ed.G Starke. Ian. “ PUBLIC INTERNATIONAL LAW”. Pvt. CLASSIC AND CONTEMPORARY READING. Louis Henkin ET.International Environment Moot Court Competition. PRINCIPLES OF PUBLIC INTERNATIONAL LAW. Oxford University Press. 2003 • • • C. Brownlie. THE IRAN-UNITED STATES CLAIMS TRIBUNAL (The Hague: Martinus Nijhoff Publishers. “Introduction to International Law”.Lynne Rienner Publishers. Old bailey press London (2002) BLACK’S LAW DICTIONARY. 1998) • Dixon Martin. Brueschke.

N. A/RES/56/83 (Dec. Vienna Convention on Civil Liability for Nuclear Damage 1963. Doc. Res. Res. 2001) ILC Draft Articles on State Responsibility. G. International Atomic Energy Agency Assistance Convention International Atomic Energy Agency Convention on Early Notification of a Nuclear Accident North American Free Trade Agreement Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage 1997. 1-2.A. 2012 • • • • • • • • • • • Commentary on ILC draft Articles on State Responsibility Convention on Supplementary Compensation for Nuclear Damage. 1803. Annex art.A. U. STATEMENT OF JURISDICTION XI . 1969.International Environment Moot Court Competition. 56/83. adopted by the 1992 Conference held in Rio • • • United Nations Resolution 1803. Vienna Convention on the Law of Treaties. Stockholm Declaration adopted by the 1972 Stockholm Conference The Declaration on Environment and Development. 17 UN GAOR Supp (No 17) G. 12. 1997.

paragraph 1. 2012 The government of The Federal States of Amuko and the Republic of Rentiers agreed to submit the matters to the International Court of Justice under a Special Agreement pursuant to Article 36. of the Statute of the International Court of Justice.International Environment Moot Court Competition. Both Parties recognize and submit to the jurisdiction of the International Court of Justice to resolve this matter XII .

and the medical monitoring and related medical expenses of the former residents of Robelynch? C. the property losses suffered by the former residents of Robelynch. Does the Federal States of Amuko have the jus standi to bring the following claim before the International Court of Justice? B. Has the Republic of Rentiers violated international law by expropriating without just compensation the investments of Amuko companies in the sovereign bonds of Rentiers through default and debt restructuring? XIII . Has the Republic of Rentiers violated international law by failing to properly compensate and/or reimburse Amuko for expenses related to: the deaths of two Amuko ministry of energy employees.International Environment Moot Court Competition. 2012 QUESTIONS PRESENTED A.

Amuko suffered from nuclear and radiological damages. But. Rentiers giving various reasons decided to close other nuclear plants which were the investments of Amuko.International Environment Moot Court Competition. Rentiers then notified Amuko and asked help to assist Rentiers. XIV . 2012 STATEMENT OF FACT An earthquake occurred in the Rentiers due to which its nuclear plants got damaged and as a result. Amuko asked reimbursement with Rentiers in accordance with Article 10 of the IAEA Assistance Convention. while assisting Rentiers. instead. Then. the case was brought before ICJ. But it refused to do so. Due to this difference and not being able to solve it through negotiation. nuclear reaction was there. Amuko then established compensation fund for the people.

The first claim being a direct one. XV . B. Article 10 of IAEA Convention should not be interpreted in restrictive way and the objective of the Convention should be taken into account. Rentiers cannot take the defense of necessity/force majeure and precautionary principle as there was no threat to any of vital interest and even if so conceded. C. Rentiers violated international law by not reimbursing Amuko in accordance with Article 10 of IAEA Convention and general principles of international law. arising from the violation of the treaty obligation of Rentiers as well as principle of international law. Amuko can espouse the second claim by the exercise of the right of diplomatic protection vis-à-vis its nationals. Rentiers violated international law by expropriating the investment of the Amuko companies. 2012 SUMMARY OF ARGUMENT A.International Environment Moot Court Competition. D. the debt restructuring was not the only means available. The fresh start act which would enable the investors to get 10% of what they would otherwise get amounted to indirect expropriation for which adequate compensation must be provided which has not been provided by the Rentiers. The purchase of sovereign bonds amount to investment according the RABBIT as well as general international law. Amuko has the jus standi to bring the following two claims against Rentiers in the ICj.

I. (1957). 1996) at 512.Y. Old bailey press London (2002) 175 Oppenheim. Series A/B. The Mexican Eagle Oil Company Dispute. 1. Grotius Socy.A. on behalf of the Amuko companies. I (Sir R. 1938. 4 The breach by Rentiers of its obligation under the IAEA and customary international law caused a direct injury to Amoko thus provided it with the authority to bring the claim against Rentiers. 15. PCIJ Ser.P. See also Oppenheim. The claim regarding expropriation being an indirect claim i.J.. at 511-512. France). Watts ed. 42(b)(i). When a direct breach of international law is committed against a state. Harris. Oxford: Oxford University Press. 1 Phosphates in Morocco. Principles of Public International Law (6th edn. (ELSI) (United States of America v. 1. 1 . “ Public International Law”. No. Cases and Materials on International Law. New York: Longman. 1998) at 85. 2003) 472. 74. London: Sweet & Maxwell. D. 42(a). 2012 1. J. Rainbow Warrior (New Zealand v.C. AMUKO HAS THE JUS STANDI TO BRING THE PRESENT CLAIM. Italy).e. The Panevezys Saldustiskis Railway Case (Estonia v.2 Amuko has the standing regarding the second claim.1 Amuko has the standing regarding the first claim. (5th edn. Amuko will have the right to exercise diplomatic protection vis-à-vis those companies if the requirements of nationality of claims and exhaustion of local remedy is fulfilled. Case Concerning Elettronica Sicula S. 20 UNRIAA 217 (1990). 121 Recueil des Cours. R. 323 (1967-II). The claim regarding the compensation according to the IAEA and customary international law is a direct claim against the respondent. 1949.A. (1939) PCIJ Rep.J./B. Jennings and Sir A. I. 1.. 1955 (Israel v. 4 Articles on State Responsibility..3 A State is considered injured. 76. Corfu Channel Case (Merits). . such as when the breached obligation flows from a treaty. No.2.. Aerial Incident of July 27. Brownlie..C.Jennings.1 Amuko Companies Are The Nationals Of Amuko. 1 the aggrieved State is entitled to bring a suit2 as well as claim for reparation.s International Law-Vol. 1989 I.General Course in International Law. 2 3 Alina Kaczorowska . Lithuania). 9th edn. Bulgaria) ICJ Pleadings (1955) 530. if the obligation breached is owed to that state individually or if it is specially affected by a breach of an obligation.International Environment Moot Court Competition..

The Rule of Exhaustion of Local Remedies. Case Concerning Elettronica Sicula Spa (ELSI) . OPPENHEIM’S INTERNATIONAL LAW. “ principles of public international law”. 23 I. which required that the respondent should prove the effectiveness of the further remedy in order to preclude the admissibility of the international claim10.A.11 5 Barcelona traction case. 1989. Article 9. Ambatielos Arbitration. also see Tim Hiller. It is for the respondent to convince the Court that there were effective remedies in its domestic legal system that was not exhausted. Italy).7 In absence of any evidence to rebut the presumption..) Universal Law Pub. 8 Case Concerning Eletronica Sicula S. Trindale. Judgment of 24 May 2007. INTRODUCTION AND PART I. First Indian Reprint (2003)517 6 Draft Articles on Diplomatic Protection.L.. pg 175.5The Amuko companies being incorporated in Amuko are presumed to be Amuko nationals. Article 9. Ahmadou Sadio Diallo. 1983).. Republic of Guinea v. (Sir Robert Jennings and Sir Arthur Watts eds. Rep. at p. 2012 Corporations. 58 (Cambridge University Press.R. Democratic Republic of Congo (PreliminaryObjections ). 9 The Court applied the rule of exhaustion of local remedies together with the rule of reason. at para 61 and 62 (1989) 1 11 ICJ . Ltd. 1. 9 Agreed fact Para 35 1 10 ICJ. 306. like individuals are the nationals of a state and diplomatic protection can be exercised on them as well.P.J.2 Local Remedies Have Been Exhausted. 2 . Judgment 20 JulyICJ Rep. Co.6 This presumption can be rebutted when a company is controlled by foreign nationals in another State and has no significant business dealings in the State of incorporation. Cavendish publishing limited second edition (1999 ) 7 Draft Articles on Diplomatic Protection.8 The affected Amuko companies sought compensation in the domestic courts of Rentiers and those claims were denied. Local remedies are deemed to have been exhausted when a decision has been rendered by the highest tribunal prior to submission before this Court.I.International Environment Moot Court Competition. the Amuko companies are held to be the nationals of Amuko. Pvt.C.2. 15. (ELSI) (United States of America v.

18 Louis Henkins et al “ International Law Cases and Materials” American casebook series second edition.3 of the IAEA Assistance Convention. one of the vehicles. (1987) 1056. in accordance with Article 2. Amuko promptly responded that the Amuko Ministry of Energy (AME) would remove the fuel rods and transport them via highways in specially manufactured vehicles.14 On 12 February 2010.16 The property losses suffered by the former residents of Robelynch.17 The medical monitoring and related medical expenses of the former residents of Robelynch. were killed. the following damages took place: • • • 1 12 The driver and one security guard.13 On 9 February 2010. west publishing co. crashed through a guard rail and tumbled down a 75-meter ravine. the provision in any contract cannot take away from a state. 13 Para 18 of the Agreed Facts Para 19 of the Agreed Facts Para 21 of the Agreed Facts Para 22 of the Agreed Facts Para 25 of the Agreed Facts 14 15 16 17 3 . 2. Rentiers requested assistance from Amuko. On 8 February 2010.2 of the IAEA Assistance Convention. 2012 Also. while in the territory of Amuko. 15 As a result.12 2.International Environment Moot Court Competition. in accordance with Article 2. its right to exercise diplomatic protection vis-à-vis its nationals. also an AME employee.1 Federal State Of Amuko Suffered Damages As A Result Of Assistance Provided To The Republic Of Rentiers. Rentiers shall be liable for compensation according to Article 10 of the IAEA Assistance Convention.

it shall be the legal obligation of Rentiers to fully reimburse Amuko for its expenses during the assistance to Rentiers.2. but instead. 2012 Thus. the above damages suffered to Amuko because of its fulfilling of the duty as per Article 2 of the Convention on Early Notification of a Nuclear Accident. 18 Para 25 of the Agreed Facts 19 Georgetown International Environmental Law Review Georgetown International Environmental Law Review Fall. harm to property. 2. Article 10(2) makes it clear that countries that render aid to others who face harm will not be liable for death.International Environment Moot Court Competition. 2. The damages.1 There Was No Intent Of Willful Harm By Amuko During The Accident. Article 10 of the IAEA Assistance Convention is a provision which gives the assisting state the security towards assistance. it took excuse saying that there was no environmental damage and the incident took place in the territory of Amuko which does not come under the jurisdiction of the Article. Thus. as per Article 10 of the IAEA Assistance Convention.2 There Is A Legal Obligation Of Republic Of Rentiers To Reimburse Amuko For The Compensation Program Established By The Amuko Congress.3 The Restrictive Interpretation Of Article 10 Of The IAEA Assistance Convention Is Against The Spirit Of The International Law.19 But. 2. as previously proven. or environmental damage during rescue efforts unless the harm is willful. Thus. the Republic of Rentiers shall take all the necessary measures to fully reimburse the Federal States of Amuko for the compensation program established by the Amuko Congress. Amuko Congress established a compensation fund for people affected by the accident near Robelynch. were the one which occurred during providing assistance to the Rentiers. It encourages the assisting state by providing the compensation in case of any loss to the assisting state. in this case. The duty of Rentiers was to compensate Amuko. 17 (2004) 4 .

While providing assistance.C.2 Treaty Must Be Interpreted In A Good Faith. page 39) ILC. The objective of the convention will not be meeting if only the part of the treaty is taken. I. Para. Any treaty shall be interpreted in the light of the text and also on the basis of its objective and preamble. Article 10 is to be interpreted in the context of whole and not only by certain words. 2. Territorial Dispute (Libyan Arab Jamahiriya/Chad). pg 242 Agreed Facts Vienna Convention on the Law of Treaties. 2012 2. Thus. a proper meaning and to encourage other states to assist during nuclear accidents.3.International Environment Moot Court Competition. number II. Amuko and Rentiers both are parties to the IAEA Assistance Convention. Thus.J. 21-22.1 Treaty Must Be Interpreted As A Whole. 41 21 Case of Polish Postal Service in Danzig. Article 31(1). The principle of Pacta Sunt Servanda 24 is an important principle of international law. pp. Article 10 (the requesting state) should be applied only in the context of environmental damages or no state will be encouraged to help other state in future. Reports 1994. to give the words.21 The terms cannot be determined abstractly but in their context and by reference to the objective and the purpose of the treaty. PCIJ (Series B. Article 26 22 23 24 5 .3.22 Amuko had helped Rentiers during its nuclear reaction. 20 Vienna Convention on the Law of Treaties. Judgment. Thus.20 It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context. Yearbook. Rentiers is to be abided by it. The objective of the IAEA Assistance Convention was to provide security to the assisting state if any harm occurred to it. unless such interpretation would lead to something unreasonable or absurd. Amuko suffered damages.23 They must both follow the treaty in good faith and it must be applied to both.

2006 6 . Diehl. Articles 30(a). Boulder London. & Pol'y 67. The phrase ‘requesting state’ is only applicable to the environmental damages and not to other damages. J. The general principles of nuclear liability under Articles II and IV give rise to absolute liability 29." regardless of the fact that the injury occurs outside the exporting nation's territory and involves foreign nationals. Thus.N. L. Denver Journal of International Law and Policy Winter.28 3. edited by Charlotte Ko. 12. 28 35 Denv.Lynne Rienner Publishers. Anthony D’Amato Northwestern University School of Law Kirsten Engel University of Arizona. reaffirmed by the UN International Law Commission. Doc. 56/83.26 A state that exports.1 The Act of Rentiers Is a Wrong Under 1963 Vienna Convention On Civil Liability For Nuclear Damage. Rev. 3. breach of an international obligation gives rise to an independent and automatic duty to cease the wrongful act and to make reparation. dangerous technology to another state may arguably be liable under the international law of "state responsibility. The Republic of Rentiers has violated international law by failing to compensate Amuko. A/RES/56/83 (Dec. As a matter of customary law. 1-2. 2012 The accident took place in Amuko but while providing assistance to Rentiers. 27 State Responsibility for The Exportation Of Nuclear Power Technology. Classic and Contemporary Reading. Res.A. Thus.25 International liability for risk means in this field that even without any actual damage to the environment of a foreign country a state would be liable for activities which could possibly ceases such damage. the good faith shall be that Amuko shall get the compensation for helping Rentiers. 31(1) 26 International Law. 74 Va. State Responsibility and Liability for Nuclear Damage.International Environment Moot Court Competition.27 Nuclear activities are included in the general obligation resulting from customary international law. 1011 (1988). and Paul F. rather than citizens of the state. Annex art. 2001). U. Int'l L. Rentiers shall be liable for compensating Amuko Congress in accordance with Article 10 of the IAEA Assistance Convention. The claimant is only required to prove the relationship of cause and effect between 25 G. from the operator's side. or allows to be exported.

7 . Reinters assistance was on the other hand the cause which when was followed by the accident then resulted into the explosion of radioactive gas into the air that brought the effect of evacuation of the people from the village.32 The remedy of legal liability and compensation is feasible where the damage is identifiable. 33 The act of Rentiers is a wrong as suggested upon this convention and according to the Art 6 (para 6) Compensation for damage caused to the means of transport upon which the nuclear material involved was at the time of the nuclear incident shall not have the effect of reducing the liability of the operator in respect of other damage. 4 (Apr. Alb. Explanatory Texts. v. & Pol'y 13 Copyright (c) 2006 Denver Journal of International Law and Policy.J. Int'l L.C. which in turn makes it absolutely liable for every acts resulted by the nuclear activities. The case of property loss of people is therefore directly related with the assistance provided to Reinters. 29 The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage.K.). Henceforth. 32 Agreed Fact 16-25 33 Trail Smelter Arbitration. 1949 I. traceable to a state of origin. Liability and Compensation for Harm Caused by Nuclear Activities. and the operator cannot escape liability by proving diligence on their part. 9). and reasonably foreseeable by that state. 2012 the nuclear incident and the damage for which compensation is sought. J. this explains the violation of general principle of international law from the part of Rentiers by avoiding compensating Amuko for the damages caused by the nuclear accident.31 Reinter is the operator of the nuclear power. The Corfu Channel Case (U. The efficacy of international environmental law: a personal reflection.30Nuclear activities are governed by the strict-liability regime.International Environment Moot Court Competition. A comprehensive study of the Agency's nuclear liability regime by the IAEA International Expert Group on Nuclear Liability (INLEX) to aid the understanding and authoritative interpretation of that regime (2004) 30 ibid 31 35 Denv.

36 3. art 3[2(b)] of the same convention explicitly mentions Compensation for nuclear damage is to be distributed equitably without discrimination on the basis of nationality. iii. Art II 2[ ii.e Reintiers 35 hence should have compensated for the nuclear damage in Robelynch. The convention in its Article VII. if any. Principle 21 of the Stockholm Declaration adopted by the 1972 Stockholm Conference on the Human Environment stresses that states have the responsibility to ensure that activities under their jurisdiction or control do not cause damage to the environment of other states or areas beyond national 34 Protocol to Amend The Vienna Convention on Civil Liability For Nuclear Damage 1997. domicile or residence [also in art XIA of 1963 Convention] . 2012 3. Art 3 [1(a)] of the convention clearly mentions Compensation in respect of nuclear damage per nuclear incident shall be ensured by the installation state.34 The installation state of the nuclear power i.International Environment Moot Court Competition.2 Republic Of Rentiers Had To Compensate Amuko under Convention On Supplementary Compensation For Nuclear Damage.2 for the case where the operator is itself a State incident. the State (or its constituent sub-division) has to ensure the payment of claims for compensation. Also. iv] Agreed Facts.3. Para 3 ibid 35 36 8 . of its liability as operator. This provision has created an obligation on the side of installation state for all nuclear damage that occurs due to the nuclear incident. Republic Of Rentiers Is Under the Obligation To The General International Principles. Nuclear damage applies to property losses suffered by former residents of Robelynch as well as medical monitoring and related medical expenses of them.

1993) 40 Gut Dam Claims (Can.N. The nuclear damage although took place in Robelynch which is beyond the jurisdiction of Rentiers. v U. adopted by the 1992 Conference held in Rio de Janeiro reaffirms the same principle in its Principle 13. U. it makes Rentiers liable to compensate for the damage. Andrea Laura Mackielo 42 A Liberian oil tanker washed ashore and extensively damaged local fisheries in Niigata. 1969) 41 The river Mura. Yugoslavia claimed compensation for the economic loss incurred and for damage to fisheries. 1. ibid 9 . Classic and Contemporary Reading. Doc. edited by Charlotte Ko. 16 ILSA J Int'l & Comp L 257. June 5-16. 38 Principle 22 further explains the scheme of liability and compensation of the environmental damage caused to areas beyond their jurisdiction.48/14/REV. but since the cause of the accident that resulted into damage was the assistance provided to the Rentiers by ministry of Amuko. which can be considered as being the general foundation for the prohibition of transfrontier pollution.. those states deserve to be compensated. The Liberian Government paid compensation to the fishermen for damage. Braz. there is an implicit assumption that other states' environment should not be damaged.40 In cases of Mura River case41 and Juliana Ship42. 8 ILM 114. Diehl. forming the International Boundary between Yugoslavia and Austria. Boulder London. the west coast of Japanese island of Honshu.. and if it were.1 (Jan. 27. ILSA Journal of International & Comparative Law Fall. The Declaration on Environment and Development. 397 39 Conference on Environment and Development.S. 37 Conference on the Human Environment. Stockholm. I.1(VOL. 2012 jurisdiction. June 3-14.I) (Jan. 128 (Sept. Swed. 1972. Report of the United Nations Conference on Environment and Development. Lynne Rienner Publishers. A/CONF.International Environment Moot Court Competition. was extensively polluted by the sediments and mud which several Austrian hydroelectric facilities had released. Rio de Janeiro.N. Core Rules of International Environmental Law.151/26/REV. 1. U.37 Principle 21 of Stockholm Declaration formulates a customary international law rule.). Report of the United Nations Conference on the Human Environment. 2009. vol. Doc. Principle 2. 1992. and Paul F. A/CONF. Principle 21.39 The Gut Dam case also consists of an instance of state practice inasmuch as Canada had agreed to indemnify the United States for any damage caused by the dam. 1973) 38 International Law.

D. 1408. ‘Sovereign Debt Litigation Problems in the United States: A Proposed Solution” 9 Or.44 The sovereign bonds were purchased according to the law of Rentiers and amounted to title or claim to money by the bond holders as well as could be a contract having a financial value thus qualifying themselves as investments under the RABBIT. Decision on Jurisdiction. Int'l L. various scholars49 view sovereign bonds as investments. 46 4 47 Ceskoslovenska Obchodni Banka. 1999.V. 10 . v. 4. Pope & Talbot II. 1581 (2010).Y. 657 (2004) 50 51 S.1 Purchase of Sovereign Bonds Amount to Investment. 495 ( 2008) . agreed fact Para 13 4 44 Article 1(1) (b) of RABBIT.D. Agreed fact Para 13 45 Fedax N. 48 Also. a consolidation agreement regarding loan was held as investment. Liendo. 37 I. Myers. ‘Conference on Sovereign Debt Restructuring: The View From The Legal Academy: Neither Order Nor Chaos: The Legal Structure Of Sovereign Debt Workouts. 24 May. Lisa Bennett . Venezuela (1998). 107( 2007) . Rev. v.International Environment Moot Court Competition.M. Am. Rev.L. Inc v. 40 I. RENTIERS EXPROPRIATED WITHOUT JUST COMPENSATION THE INVESTMENTS OF AMUKO COMPANIES IN THE SOVEREIGN BONDS OF RENTIERS THROUGH DEFAULT AND DEBT RESTRUCTURING. The Slovak Republic. the tribunal regarded promissory notes as investments.Myers].L. 1437 (NAFTA) [S.J. Rev.46 Similarly in CSOB v Slovak Republic47. RABBIT defines investment as “all kinds of assets that have been invested in accordance with the laws of the Contracting Party receiving them 43 and includes interalia title or claim to money or to any contract having a financial value”. 53 Emory L.U. A. n129. 373. In S.M. Myer50 and Metalclad51 it was assumed 4 43 Article 1 of RABBIT . 14 ICSID ReviewFILJ 251 (1999) 4 48 Opening Pandora’s Box pg 721 4 49 Horacio T. 2012 4. Daniel K. Juan Pablo Bohoslavsky. pg 720. “Are Tradable Carbon Emissions credits investments? characterization and ramifications under international investment law’ 85 N.D.S. 1378 (ICSID) Opening Pandora’s Box . Canada (2000). ‘Responsibility for Abusive Granting of Sovereign Loans’ 14 Law & Bus. Tarullo. In the case of Fedax v Venezuela45.L.

220 (1984-11).S.e.. Islamic Republic of Iran (1983) 4 Iran-U. The Iran-United States Claims Tribunal (The Hague: Martinus Nijhoff Publishers. G.. whether formal and direct such as nationalization. and thus has a monetary value”.R. 6 C. Aldrich. Mouri. at p.R.D.53 Further. 8th Ed.T.”54 In Starrett Housing Corporation v. The International Law of Expropriation as Reflected in the Work of the Iran-U. Brower & J. 1996) and C. Islamic Republic of Iran the tribunal held that “[it] is recognized in international law that measures taken by a state can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated. 2004 5 53 Amoco International Finance Corp.S.”55 Metalclad Corporation v. and Islamic Republic of Iran. both are investments under the RABBIT.M.. Thus.. Brueschke. 1998) 11 .2 The Action of Rentiers Amounted Expropriation. Claims Tribunal took the position that an expropriation of property encompasses “all kinds of takings. 122 at 154 per Lagergren [hereinafter Starrett]. 2012 that an investment made prior to NAFTA was an investment for the purposes of that treaty. 47 (ICSID) 5 52 Black’s Law Dictionary. i. 149. C. freely sold and bought. or informal and indirect such as so-called constructive takings and ’creeping’ expropriation. and may extend to any right which can be the object of a commercial transaction.H. 40 I.S. can be defined as a compulsory transfer of property rights.L.S. Claims Tribunal (Dordrecht: Kluwer Academic. 1994). even though the state does not purport to have expropriated them and the legal title 5 to the property formally remains with the original owner. 4. 36. The International Law of Expropriation as Reflected in the Work of the Iran-U. the purchase made before as well as after the RABBIT. with regard to the scope of an expropriation.International Environment Moot Court Competition.N. 168. The Jurisprudence of the Iran-United States Claims Tribunal (Oxford: Clarendon Press. For a discussion of the expropriation jurisprudence of the Iran-US Claims Tribunal see A. Claims Tribunal 70 (1994). the Iran-U. Mexico (2000).52 In the Amoco/Iran Case it was held that “Expropriation . 5 54 Allahyar Mouri.T. 5 55 Starrett Housing Corporation v.

D J Harris.57 The present state of customary international law regarding expropriation of alien property has remained obscure in its basic aspects. International Law (4th ed.59expropriation can be justified only if the Host State can prove it is: (i) for a public purpose. 10 (2004). in accordance with its laws and in return for payment of just compensation. Shaw.60 4. UN Doc A/C. 17 ILM 1 (1978). Second Committee Meeting.M. 8 June 2009 (NAFTA) 5 57 Starrett Housing Corporation v. 2003) 1206. which shall be made without unreasonable delay. 50. Butterworth’s Tenth Edition 1998 12 . n204. but the compensation rule makes the legality conditional. New Foundations Of The Law Of Expropriation Of Alien Property. expropriation as an exercise of territorial competence is lawful. 2012 The effect of the fresh start act was be such that the “economic value of the property interest [was] radically diminished”. J. “ cases and materials on international law “ sweet and Maxwell pg 541 fourth edition 1991 6 60 RABBIT. any measure amounting to expropriation is unlawful unless the measures are taken for a purpose authorized by law.2/L.L.R. 5 59 Resolution 1803. (iii) nondiscriminatory. n203.International Environment Moot Court Competition. n163. In the Chorzów Factory Case. 2004/4. Iran (1984). S. Article 10 (1) 6 61 Brownlie pg 532. ¶355.533 .3 Rentiers Did Not Provide Adequate Compensation In principle. according to RABBIT.G Starke . Indirect Expropriation and the Right to Regulate in International Investment Law. “ Introduction To International Law”. 4 Iran-US C. 226.A. pg 300.T. 5 58 Texaco v Libya (Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libya) 53 ILR 389 (1977). 39 I. Award. on a non-discriminatory basis.58 Nevertheless. OECD Doc. Costa Rica (2000). Compania Del Desarrollo de Santa Elena. the PCIJ held that the minimum pecuniary 5 56 Metalclad. Also. TAMS-AFFA. United States. 75 AJIL 553 (1981). v.61 The expropriation amounting from the fresh start act did not provide adequate compensation. Glamis Gold. supra. 164.1404 (1974). 1317. Glamis. 123. pursuant to principles of international law. UN Conference on Trade and Development. v. 1330 (ICSID) [Santa Elena]. No. Rudolf Dolzer. Ltd.56It is a norm of custom that measures having such an effect constitute an indirect expropriation. Also see. (ii) provided for by law. and (iv) accompanied by adequate compensation.

Note sur son processus d'elaboration. as evidence of a standard practice and opinio 6 62 Chorzów Factory Case (1928) PCIJ Series A. it requires compensation on the level of international law. 310-56-3. claimants are entitled to full compensation in accordance with international standards.1 Payment Of Compensation Only In Accordance With Domestic Law Is In Violation Of Principles Of International Investment Law. 17 6 63 De Sabla Case 28 AJIL 602 (1934) 6 64 ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 57 (1974). La Charte des droits et devoirs economiques des etats. A Law of the Future or A Law of the Past? Modern Tribunals and the International Law of Expropriation. and what distinguished unlawful from lawful takings was the additional obligation in the former case to compensate for consequential loss.M. 15 Iran-US Cl Trib Rep 189. (1974). Norton. Y. State Contract with Aliens. the applicability of domestic law. 59 BRIT. 6 67 BROWNLIE. INT‟L L 49. (1991) 85 AJIL 474.B. 6 65 P.65 If foreign property is taken in breach of a State contract. the compensation to be paid should be enhanced to include damages payable on account of the breach of contract.64This means that the adequacy of compensation is to be judged by reference to international criteria rather than the provisions of the national law of the expropriating state. over and above the compensation ordinarily payable for expropriation66 4. at 509.International Environment Moot Court Competition. in disputes concerning expropriation of foreign property. Furthermore.3. Partial Award No. as expropriation of alien property expresses principles of international law. 2012 obligation in all cases was the payment of the full value of the property taken. para 197 (1987).62 The United States-Panama General Claims Commission. D. Under A. Iran. in the De Sabla Case. Bowett. 13 .63 decided that acts of a government in depriving an alien of his property without compensation imposes international responsibility. 6 66 Amoco International Finance v. Castaneda.2(2)(e) of the Charter for Economic Rights and Duties67. No. 68 (1988).

by providing for a minimum set of principles which States." 7 74 Dixon Martin'"Textbook on INternationla Law" . The UN Resolution 180369 lays down that “… the owner shall be paid appropriate compensation ensuring that the subject of compensation is governed by international law70. 7 70 Orrego Vicuna. 4. 67 AM. L 711. 7 72 RABBIT. supra note 91. A/RES/17/1803 (1962). INT‟L. 67 AM. which governs the treatment of aliens.72 The amount of compensation to be provided to the Amuko Companies thus must be adequate i. Further. at 58. INT‟L. 17th Sess. J. 59. Murphy.74 As defined by OECD: The international minimum standard is a norm of customary international law which governs the treatment of aliens. Libya 6 69 U. according to the international standard and not according to the Fresh Start Act. GAOR." The international minimum standard is a norm of customary international law. has been rejected68. must respect when dealing with foreign nationals and their property 75. The term „appropriate clearly implies some minimum conditions to be observed while granting compensation. regardless of their domestic legislation and practices. Some International Law Problems Posed by the Nationalization of the Copper Industry in Chile.N. to avoid the arbitrariness that will result from the exclusive application of municipal laws71. 7 71 Orrego Vicuna.e. 6 68 Texaco v. L 711. Every state must treat foreigners within its territory with reference to minimum international standard73 irrespective of how national law allows that state to treat its citizens. must respect when dealing with foreign nationals and their property. by providing for a minimum set of principles which States.International Environment Moot Court Competition. 718-719 (1973).pg 256.. 2012 juris.Sixth Edition (oxford university press:oxford 2007) 75 14 . Article 10 (1) 7 73 As defined by OECD. J.3. taking into account customary norms of international law. Cornelius F. Some International Law Problems Posed by the Nationalization of the Copper Industry in Chile. 718-719 (1973).2 The Aliens Must Be Compensated According To International Minimum Standard. regardless of their domestic legislation and practices. Also RABBIT requires that such compensation shall be the value of the investment immediately before the expropriation.

365. v. Series C.pdf 7 76 Treatment. (1962-I) 105 Hague Recueil 315. Saluka Investments BV (The Netherlands) v. Adriana Sánchez Mussi. G. 17 UN GAOR Supp (No 17) at 15 on “Permanent Sovereignty over Natural Resources‟. 1803.Shawcross. (1930) UNRIAA ii. 4. but also to agreements between a State and a foreigner82. Inc. 167. Rentiers must compensate Amuko investors according to international minimum standard. 11 October.A. Landreau Claim (1921) RIAA i. 102 RECUEIL DES COURS 339 (1962). irrespective of how the national investors are compensated. Economic Development Agreements. Losinger Case. available at The American Law Institute’s Restatement (Third) of Foreign Relations Law of the United States.files.81 The principle of pacta sunt servanda applies not only in agreements concluded between States. (1929). i. ILA. incurs State responsibility. therefore. The Loewen Group.wordpress. requiring the State to honour its obligations in good faith 83. Article 8. Azurix Corp. PASICRISIE INTERNATIONALE.4 Breach Of State Contract Incurs State Responsibility. . Loewen v. 9 January. Res. 2012 various national laws76.W.com/2008/09/mst. Hyde. (1962) (hereinafter “UN Resolution 1803”). regional treaties 77 and case laws78 require the aliens to be treated according to international minimum standard.79 built upon the principle of pacta sunt servanda.International Environment Moot Court Competition. and Raymond L. Delagoa Bay Railway Case. Shufeldt Case. ADF Group Inc. United States of America. pp 347. in §711 e) refers to the protection ought by a state to a foreign national or his property making it responsible for injury when the protection falls below a minimum standard of reasonableness. 27 ILR 117. The Problems of Foreign Investment in International Law. 23 AJIL Special Supp. The Argentine Republic.80 Breach of State contract. The arbitrary violation or termination of a State contract is in itself in violation of principles of international law84.e. Report of the Forty-Eighth Conference (1958). 161. 80 Saudi Arabia v Arabian-American Oil Co. United States of America. International Minimum Standard of http://asadip. ICSID Case No. 83 15 . No. 2002. Thus. ARB (AF)/99/2. Article 1105 (1) 7 78 Mondev International LTD v. The Czech Republic 79 Harvard Research. United States of America. LA FONTAINE. v. Although the investment agreement cannot be classified as a treaty. 1083. (1936) PCIJ. 7 77 NAFTA Chapter XI . it constitutes an international legal duty.78. 2003. Pg 389 (1902) Para 8. 81 82 H. Draft Conventions and Comments on Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners. ICSID Case No ARB (AF)/00/1. a contract between a State and a private party.

88 Commentary on draft article. 5. Murphy. 35 ILR 136 (1967). the position is regulated by general principles governing the treatment of aliens. p. 140. Cornelius F. 85 The situation in which the state exercises its executive or legislative power authority to destroy the contractual rights as an asset comes within the ambit of expropriation. Jr. ILR 53. p. 8 87 “Rainbow Warrior”. 254.International Environment Moot Court Competition. ILR 44. 389 . THE DEFAULT IN SOVEREGN BOND IS NOT EXCUSED BY ANY OF THE DEFENSES AS PLEASED BY THE RESPONDENT. National Iranian Oil Co. LILLICH. 79. the arbitral tribunal expressed doubt as to the existence of the excuse of necessity. In Libyan Arab Foreign Investment Company and the Republic of Burundi. LIAMCO v Libya ILR 62. UNRIAA iv. 59 (1975) 85 Brownlie. It noted that the Commission’s draft article “allegedly authorizes a State to take unlawful action invoking a state of necessity” and described the Commission’s proposal as “controversial.87 The situation arises where there is an irreconcilable conflict between essential interests on the one hand and an obligation of the State invoking necessity on the other. Sapphire International Petroleum Ltd. 297..88 The compliance with an international 84 International Fisheries Company case. the tribunal declined to comment on the appropriateness of codifying the doctrine of necessity. Texaco v Libyan Government. 2012 When a state uses its domestic law to annul a contract. 691. In Rainbow Warrior arbitration.B. 1083. 86 5. in R. Limitations upon the Power of a State to Determine the Amount of Compensation Payable to an Alien upon Nationalization. THE VALUATION OF NATIONALIZED PROPERTY IN INTERNATIONAL LAW 58. 700. BP exploration company v Libya. valentine petroleum arbitration (1967) . Article 25 16 . v. 547 86 Brownlie pg 548 citing shufeldt claim (1930) RIAA ii. ILR 53. 319. noting that the measures taken by Burundi did not appear to have been the only means of safeguarding an essential interest “against a grave and imminent peril”.1 RENTIERS CANNOT INVOKE THE PLEA OF NECESSITY TO PRECLUDE ITSELF FROM ITS INTERNATIONAL OBLIGATION.

51–52. pp. That interest must have been threatened by a “grave and imminent peril”. paras. 2012 obligation must be “self-destructive” for the wrongfulness of the conduct not in conformity with the obligation to be precluded.International Environment Moot Court Competition. b. Further. 40– 41. d. even if such interest existed. The State which is the author of that act must not have “contributed to the occurrence of the state of necessity. without having tried any other alternatives means enacted the Fresh Start Act which ostensibly amounted expropriation. That act must not have “seriously impair[ed] an essential interest” of the State towards which the obligation existed. supra note 90 Clarifications to the record 90 91 92 93 17 . the default was not the only means available for Rentiers to safeguard its interest. 89 According to the International Law Commission as well as the ICJ 90 .92 In the present case. 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. It is in appropriate for Rentiers to apply the principle of force majeure in this given situation. the ground of necessity for precluding wrongfulness can only be accepted on an exceptional basis under certain strictly defined conditions which must be cumulatively satisfied. The act being challenged must have been the “only means” of safeguarding that interest. a. e. the situation in Rentiers was not characterized by grave and imminent peril of any essential interest of Rentiers.The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure that is the occurrence of an irresistible force or of an 89 Russian Indemnity case Gabˇcíkovo-Nagymaros). 93 5. Rentiers.2 It Is Inappropriate For Rentiers To Invoke The Principle Of Force Majure For The Closure Of The Nuclear Plants. c.91 Those conditions reflect customary international law.

Article 23 ILR. 96. 5.94 5. Rentiers had invoked Force Majeure for closing the nuclear plants due to the reasons of earthquake. the arbitral tribunal rejected a plea of force majeure because “the alleged impossibility [was] not the result of an irresistible force or an unforeseen external event beyond the control of Burundi.1 The Change Of Circumstances Was Present While Concluding The Treaty.”97 In this case. and the earthquakes of that range were very frequent in that area. 55 (1994) 95 96 97 18 . 318. beyond the control of the State.. 2012 unforeseen event. Rentiers allowed Amuko to invest and later invoking force majeure to close those plants means that Force Majeure was the conduct of the Rentiers. In Libyan Arab Foreign Investment Company and the Republic of Burundi. Para.2 The Situation Of Force Majeure Is Due To The Conduct Of The State Invoking It. 94 ILC Draft Articles on State Responsibility. and which was not foreseen by the parties. the impossibility is the result of a unilateral decision of that State .. Article 62 ILC Draft Articles on State Responsibility. But Rentiers knew this fact previously. In fact.96 ILC Draft Articles on State responsibility has made it clear that Force Majeure cannot be invoked if the situation of force majeure is due to the conduct of the State invoking it. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty. making it materially impossible in the circumstances to perform the obligation.2. Article 23 Vienna Convention on the Law of Treaties. p.3. 5. Despite of that. Precautionary Principle Does Not Justify The Act Of Nuclear Power Plant Closure.International Environment Moot Court Competition.2. may not be invoked as a ground for terminating or withdrawing from the treaty95. vol. Rentiers knew about the Diablo Canyon Fault and the ongoing earthquakes in the particular place.

231 (1997). 99 ibid See.htm. Gabcikovo-Nagymaros project Case (Republic of Hungary v. In many instances. States must use the principle according to their capabilities. it is too vague to serve as a regulatory standard because it does not specify how much caution should be taken.101 98 See. & Vern R.wto. when international courts and tribunals have been called to examine the principle. Hickey. the principle has provided certain limitations for it to be used. Remarks: New Developments in International Environmental Law. owing to the ambiguity of the principle. pg 288. in Jaye Ellis. First. 17 European Journal of International Law 445. See generally James E. Rev. the principle also suffers from an apparent paucity in terms of it being recognized in international courts. the principle further explains that the threat should bear full scientific certainty and should not be used as a reason for postponing cost-effective measures. Proc. Soc'y Int'l L. 8 (Sept. in Owen McIntyre and Thomas Mosedale. However. 7. Fullem. 2012 Principle 15 of Rio Declaration on Environment and Development elucidates that precautionary approach for environment protection. 9 Journal of Environmental Law 221."). The Precautionary Principle As A Norm of Customary International Law. courts have simply refused to do so100. But see Daniel Bodansky. WT/DS48/AB/R 16 January 1998 http://www. Similarly. 1991) ("Although the precautionary principle provides a general approach to environmental issues.International Environment Moot Court Competition. 14 Va. Dupuy (citation omitted). ICJ Reports 1997 pg. 100 101 19 . 423 (1995) and Gregory D.."). The Czech and Slovak Republic). Daniel Bodansky. Overexploitation of Valuable Resource? New Literature on the Precautionary Principle.J. Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s judgment of 20 December 1974 in Nuclear Tests (New Zealand v. The act of nuclear closure brings about huge loss to the investors of the company. Refining the Precautionary Principle in International Environmental Law. L. 448 (2006). EC Measures Concerning Meat and Meat Products (Hormones). so frequent is its invocation that some commentators are even beginning to suggest that the precautionary principle is ripening into a norm of customary international law. The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty. which is to be beard by the Rentiers. 413 (1991) ("Indeed. 33 Env't 4. Secondly. 31 Willamette L. 495 (1995). The principle has been criticized as being too vague98 and unrealistic99. 85 Am. Envtl. 401.g. Jr. Report of the Appellate Body WT/DS26/AB/R. Walker.org/english/tratop_e/dispu_e/cases_e/ds26_e. France) ICJ Reports 1995. Scientific Uncertainty and the Precautionary Principle. e.

the property losses suffered by the former residents of Robelynch. • Republic of Rentiers violated international law by failing to properly compensate and/or reimburse Amuko for expenses related to: the deaths of two Amuko ministries of energy employees. Federal States of Amuko respectfully submits before the honorable court to declare. 2012 CONCLUSION/ PRAYER For the foregoing reasons. and the medical monitoring and related medical expenses of the former residents of Robelynch. 20 . that. Rentiers cannot take the defense of necessity/force majeure and precautionary principle.International Environment Moot Court Competition. • • Republic of Rentiers violated international law by expropriating without just compensation.

International Environment Moot Court Competition. 2012 Respectfully Submitted ____________________________ Agents for the Federal States of Amuko 21 .

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