Memorial:

The necessary elements to determine the existence of customary international law

The Court, similar to the North Sea Continental Shelf Case, considered both the subjective
element (opinio juris) and the objective element (State practice) as essential pre-requisites
to the formation and elucidation of a customary international law norm (para 207). The
jurisprudence of the Nicaragua case contained an important clarification inconsistent State
practice does not affect the formation or continued existence of a customary principle so
long as the inconsistency is justified as a breach of the rule.
It is not to be expected that in the practice of States the application of the rules in question
should have been perfect, in the sense that States should have refrained, with complete
consistency, from the use of force or from intervention in each others internal affairs.
The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In order to
deduce the existence of customary rules, the Court deems it sufficient that the conduct of
States should, in general, be consistent with such rules, and that instances of State conduct
inconsistent with a given rule should generally have been treated as breaches of that rule,
not as indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized rule, but defends its
conduct by appealing to exceptions or justifications contained within the rule itself, then
whether or not the States conduct is in fact justifiable on that basis, the significance of that
attitude is to confirm rather than to weaken the rule. (para 186)
The Nicaragua jurisprudence explained how one could deduct opinio juris from acts of
State. The Court held that opinio juris could be deduced from:
the attitude of States towards certain General Assembly resolutions. For example, the
Declaration on Principles of International Law concerning Friendly Relations (hereafter
called the Declaration on Friendly Relations). The Court held that:
The effect of consent to the text of such resolutions cannot be understood as merely that of
a reiteration or elucidation of the treaty commitment undertaken in the Charter. On the
contrary, it may be understood as an acceptance of the validity of the rule or set of rules
declared by the resolution by themselvesIt would therefore seem apparent that the
attitude referred to expresses an opinio juris respecting such rule (or set of rules), to be
thenceforth treated separately from the provisions, especially those of an institutional kind,
to which it is subject on the treaty-law plane of the Charter
Statements by State representatives.
Obligations undertaken by participating States in international forums (the Court provided
the example of the Conference on Security and Co-operation in Europe, Helsinki)
The International Law Commissions findings that a concept amounts to a customary law
principle.
Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio juris
was subject to criticism. As you know, opinio juris is the subjective element necessary to
form customary law. Opinio juris is reflected in instances where the State undertakes a
particular practice because it believes that it is legally bound to do so. Voting patterns in the
United Nations are often guided by policy considerations over legal merits. The General
Assemblys subject matter is more policy oriented than legal (for which we have the 6th

Committee). For example, when the United States voted for the Friendly Relations
Declaration it stated on record its belief that the Declaration was only a statement of
political intention and not an expression of the law. This is not to say that provisions on
General Assembly Resolutions that guide the international community to act in a certain way
may not eventually become binding international law (either by attaining customary law
status or becoming codified into treaty law). It can, if there is adequate State practice and
opinio juris. The argument is that opinio juris cannot be said to exist based merely on a vote
in favour of a non-binding resolution in the absence of an examination of subsequent
consistent and general State practice (which, in turn, reflects or confirms opinio juris).
https://ruwanthikagunaratne.wordpress.com/tag/opinio-juris/

What is opinio juris?

1. Article 38 (1) (b) of the Statute of the International Court of Justice explains customary
international law as comprising of (1) a general practice (2) accepted as law. The general
practice or state practice was discussed in an earlier post. The ICJ, in its jurisprudence, has
relied on, and interpreted, Article 38 (1) (b) to include two elements that assist the Court to
determines the existence of an alleged customary international law state practice and
opinio juris (also known as opinio juris sive necessitates). The ICJ explained opinio juris, in
the Nicaragua case, as follows:
[] for a new customary rule to be formed, not only must the acts concerned amount to a
settled practice, but they must be accompanied by opinio juris sive neccessitatis. Either the
States taking such action or other States in a position to react to it, must have behaved so
that their conduct is evidence of a belief that the practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such belief..the subjective element, is
implicit in the very notion of opinio juris sive neccessitatis.
2. In the North Sea Continental Shelf Cases, the Court examined 15 cases where States had
delimited their boundaries using the equidistance method, after the Convention came into
force. The court concluded, even if there were some State practice in favour of the
equidistance principle the court could not deduct the necessary opinio juris. The North Sea
Continental Shelf Cases confirmed that both State practice (the objective element) and
opinio juris (the subjective element) are essential pre-requisites for the formation of a
customary law rule.
3. State practice is often seen as a reflection of opinio juris. In the Asylum case, the court
held that the relevant practice must be consistent and uniform to show an expression of a
right belonging to one state and a duty incumbent on another. The court held that Columbia
did not prove the existence of a regional custom because it failed to prove consistent and
uniform usage of the alleged custom by relevant States. The fluctuations and contradictions
in State practice did not allow for the uniform usage ( see also Nicaragua case, p. 98). The
court held in the Asylum case:
The Party which relies on a custom of this kind must prove that this custom is established in
such a manner that it has become binding on the other Party (that) it is in accordance with
a (1) constant and uniform usage (2) practiced by the States in question, and that this usage
is (3) the expression of a right appertaining to the State granting asylum (Columbia) and (4)
a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of
the Statute of the Court, which refers to international custom as evidence of a general
practice accepted as law.

4. The fact that a state undertakes a particular because of political expediency and not
because of a belief that the said practice is binding on the State by way of a legal obligation
(opinio juris) is detrimental to the formation of a customary law. In the Asylum case the
Court said: considerations of convenience or political expediency seemed to have prompted
the territorial State to recognise asylum without such a decision being dictated by any
feeling of legal obligation.
5. Opinio juris is reflected in acts of states (Nicaragua Case) or in omissions (Lotus case) in
so far as those acts or omissions are done following a belief that the said State is obligated
by law to act or refrain from acting in a particular way. In the Lotus case, France alleged that
jurisdictional questions on collision cases are rarely heard in criminal cases because States
tend to prosecute only before the flag State. France argued that this absence of prosecutions
points to a positive rule in customary law on collisions. The Court held that this,
would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if
such abstention were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does not allow one to infer
that States have been conscious of having such a duty; on the other hand, as will presently
be seen, there are other circumstances calculated to show that the contrary is true.
6.In the North Sea Continental Shelf Cases, the ICJ explained the difference between
customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e, the
existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty.
7. If a state acts in a particular way using its discretion, then, too, the relevant opinio juris is
lacking. In the Rights of Passage case, the ICJ held:
It would thus appear that, during the British and post-British periods, Portuguese armed
forces and armed police did not pass between Daman and the enclaves as of right and that,
after 1878, such passage could only take place with previous authorization by the British
and later by India, accorded either under a reciprocal arrangement already agreed to, or in
individual cases. Having regard to the special circumstances of the case, this necessity for
authorization before passage could take place constitutes, in the view of the Court, a
negation of passage as of right. The practice predicates that the territorial sovereign had the
discretionary power to withdraw or to refuse permission. It is argued that permission was
always granted, but this does not, in the opinion of the Court, affect the legal position. There
is nothing in the record to show that grant of permission was incumbent on the British or on
India as an obligation.
Persistent objector rule
The court in its judgment held that even if a customary law rule existed on the ten-mile rule,
the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.

In this case, the court appears to support the idea that an existing customary law rule would
not apply to a state if it objected to any outside attempts to apply the rule to itself, at the
initial stages and in a consistent manner, and if other states did not object to her resistance.
In this manner, the Anglo Norwegian fisheries case joined the asylum case (Peru vs
Colombia) in articulating what we now call the persistent objector rule.

CUSTOMARY LAW VS INTERNATIONAL LAW IN RELATION TO GENERAL PRINCIPLES OF

INTERNATIONAL LAW
Discussion on the Courts deliberation regarding Customary International Law: (Nicaragua VS
United States)
In this case, the Court disagreed on the argument of the United States that treaty provisions
supervene and subsume the parallel customary law provision. The Court held that
multilateral treaty reservations could NOT preclude the Court from determining cases relying
customary international law because the latter exists independently of treaty law.
Relationship between treaty law and customary international law:
- Court distinguished two situations:
1. Situations where the customary law principles were identical to treaty provisions
2. Situations where customary law and treaty law rights and obligations differed in respect of
the same subject matter
I. In situations where customary law principles were identical to treaty provisions, the Court
held that even if principles of customary international law are codified into treaties, the
former continues to exist side by side with the latter. For treaty parties, both customary and
treaty law apply and if, for some reason, the treaty ceases to apply the identical customary
law provision continues to apply between them unaffected.
- Supporting examples: The fact that customary international law exists alongside treaty law
was an argument brought by Norway and Denmark in the North Sea Continental Shelf Cases.
In these cases, the two countries having failed to attribute an obligation under Article 6 of
the Geneva Conventions of 1958 to Germany, sought to bind Germany via customary
international law. In this case the Court determined that Article 6 neither reflected
customary law at the time of the codification, nor had it attained that status at the time of
the determination. In the Nicaragua case, the Court relied on the North Sea Continental Shelf
Cases to support the assertion that principles of customary international law can exist side
by side with identical treaty law provisions and the latter does not supervene the former in a
manner where the former ceases to exist.
- The Court also relied on Article 51 of the UN Charter to show that a treaty itself can
recognize the existence of customary international law on the same subject matter. The
term inherent in Article 51 recognized that customary law rights of self-defense existed
alongside treaty provisions.
II. Rules containing the same content could be treated differently in customary international
law and in treaty law.
- For example, treaty law may contain institutions or mechanisms to ensure the effective
implementation of its provisions, including those that reflect customary law. One could take
the Courts reading of Article 51 as an example. A State that exercises the right of selfdefense under Article 51, according to the UN Charter, has an obligation to report the use of

force immediately to the Security Council. The Court held that this was a treaty requirement
and one that did not exist under customary law. Interestingly, although the failure to report
did not result in a breach of customary international law, the Court indicated that the United
States failure to observe this requirement contradicted her claim to be acting in selfdefense.
- The Court discussed situations where customary international law and treaty law provisions
were not identical. For example, the Court referred to the fact that concepts such and
necessity and proportionality, or the definition of what constitutes an armed attack, are not
found under Article 51, or the UN Charter, but in customary law. The Court concluded that
(1) this proves that customary international law continues to exist alongside treaty law and
that (2) areas governed by the two sources of law do not (always) overlap and the rules do
not (always) have the same content.
- In case of a divergence between treaty law and customary international law, for the parties
to the treaty, amongst themselves, the treaty provisions apply as lexspecialis.
o However, so far from having constituted a marked departure from a customary
international law which still exists unmodified, the Charter gave expression in this field (on
the use of force and self-defense) to principles already present in customary international
law, and that law has in the subsequent four decades developed under the influence of the
Charter, to such an extent that a number of rules contained in the Charter have acquired a
status independent of it. The essential consideration is that both the Charter and the
customary international law flow from a common fundamental principle outlawing the use of
force in international relations. The differences, which may exist between the specific
content of each, are not, in the Courts view, such as to cause a judgment confined to the
field of customary international law to be ineffective or inappropriate (to the parties of the
Charter who are bound by the Charter).
SOURCES:
https://ruwanthikagunaratne.wordpress.com/tag/relationship-between-customary-and-treatylaw/
CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND
FLORA (CITES)
CITES belongs to the first wave of global environmental treaties, being adopted in
Washington D.C. in 1973, and it was the first one to have entered into force in July 1975.
With 180 Member States, CITES remains one of the world's most powerful tools for
biodiversity conservation through the regulation of international trade in wild fauna and
flora.
CITES regulates international trade in over 35,000 species of plants and animals, including
their products and derivatives, ensuring their survival in the wild with benefits for the
livelihoods of local people and the global environment. The CITES permit system seeks to
ensure that international trade in listed species is sustainable, legal and traceable.
Heads of State and governments at Rio+20, held in June 2012, recognized (in the outcome
document, The Future We Want), the important role of CITES as an international agreement
that stands at the intersection between trade, the environment and development.
Article VIII
Measures to Be Taken by the Parties

1. The Parties shall take appropriate measures to enforce the provisions of the present
Convention and to prohibit trade in specimens in violation thereof. These shall include
measures:
(a) to penalize trade in, or possession of, such specimens, or both; and
(b) to provide for the confiscation or return to the State of export of such specimens.
2. In addition to the measures taken under paragraph 1 of this Article, a Party may, when it
deems it necessary, provide for any method of internal reimbursement for expenses incurred
as a result of the confiscation of a specimen traded in violation of the measures taken in the
application of the provisions of the present Convention.
3. As far as possible, the Parties shall ensure that specimens shall pass through any
formalities required for trade with a minimum of delay. To facilitate such passage, a Party
may designate ports of exit and ports of entry at which specimens must be presented for
clearance. The Parties shall ensure further that all living specimens, during any period of
transit, holding or shipment, are properly cared for so as to minimize the risk of injury,
damage to health or cruel treatment.
4. Where a living specimen is confiscated as a result of measures referred to in paragraph 1
of this Article:
(a) the specimen shall be entrusted to a Management Authority of the State of confiscation;
(b) the Management Authority shall, after consultation with the State of export, return the
specimen to that State at the expense of that State, or to a rescue centre or such other
place as the Management Authority deems appropriate and consistent with the purposes of
the present Convention; and
(c) the Management Authority may obtain the advice of a Scientific Authority, or may,
whenever it considers it desirable, consult the Secretariat in order to facilitate the decision
under sub-paragraph (b) of this paragraph, including the choice of a rescue centre or other
place.
5. A rescue centre as referred to in paragraph 4 of this Article means an institution
designated by a Management Authority to look after the welfare of living specimens,
particularly those that have been confiscated.
6. Each Party shall maintain records of trade in specimens of species included in Appendices
I, II and III which shall cover:
(a) the names and addresses of exporters and importers; and
(b) the number and type of permits and certificates granted; the States with which such
trade occurred; the numbers or quantities and types of specimens, names of species as
included in Appendices I, II and III and, where applicable, the size and sex of the specimens
in question.
7. Each Party shall prepare periodic reports on its implementation of the present Convention
and shall transmit to the Secretariat:
Article XIV
Effect on Domestic Legislation and International Conventions
1. The provisions of the present Convention shall in no way affect the right of Parties to
adopt:
(a) stricter domestic measures regarding the conditions for trade, taking, possession or
transport of specimens of species included in Appendices I, II and III, or the complete
prohibition thereof; or
(b) domestic measures restricting or prohibiting trade, taking, possession or transport of
species not included in Appendix I, II or III.
2. The provisions of the present Convention shall in no way affect the provisions of any
domestic measures or the obligations of Parties deriving from any treaty, convention, or
international agreement relating to other aspects of trade, taking, possession or transport of
specimens which is in force or subsequently may enter into force for any Party including any
measure pertaining to the Customs, public health, veterinary or plant quarantine fields.
3. The provisions of the present Convention shall in no way affect the provisions of, or the
obligations deriving from, any treaty, convention or international agreement concluded or

which may be concluded between States creating a union or regional trade agreement
establishing or maintaining a common external Customs control and removing Customs
control between the parties thereto insofar as they relate to trade among the States
members of that union or agreement.
4. A State party to the present Convention, which is also a party to any other treaty,
convention or international agreement which is in force at the time of the coming into force
of the present Convention and under the provisions of which protection is afforded to marine
species included in Appendix II, shall be relieved of the obligations imposed on it under the
provisions of the present Convention with respect to trade in specimens of species included
in Appendix II that are taken by ships registered in that State and in accordance with the
provisions of such other treaty, convention or international agreement.
5. Notwithstanding the provisions of Articles III, IV and V, any export of a specimen taken in
accordance with paragraph 4 of this Article shall only require a certificate from a
Management Authority of the State of introduction to the effect that the specimen was taken
in accordance with the provisions of the other treaty, convention or international agreement
in question.
6. Nothing in the present Convention shall prejudice the codification and development of the
law of the sea by the United Nations Conference on the Law of the Sea convened pursuant
to Resolution 2750 C (XXV) of the General Assembly of the United Nations nor the present or
future claims and legal views of any State concerning the law of the sea and the nature and
extent of coastal and flag State jurisdiction.
https://cites.org/eng/disc/text.php

CITES and confiscated elephant ivory and rhino horn to destroy or not destroy?
By: John E. Scanlon
Secretary-General of CITES
October 20, 2014
Over the past 24 months we have seen a number of countries, including Belgium, Chad,
China, Hong Kong SAR, China, Czech Republic, Gabon, France, Philippines, and the USA,
destroy stockpiles of illegally traded elephant ivory and rhino horn that have been seized
and confiscated.
I have been invited by national CITES authorities to witness several of these events and was
able to accept the invitation on three occasions, namely for events held in China, in
Dongguanand Hong Kong SAR, and most recently one at the Dvr Krlov Zoo, Czech
Republic. My statements made at these events are all publicly available.
These events, and on occasion my personal participation in them, attract a significant
amount of commentary both in favour of, and against, destroying confiscated elephant ivory
and rhino horn. Two examples of comments posted on our Facebook page after the recent
Czech Republic event to destroy rhino horn illustrate the point:
This is the most stupid event John Scanlon has been involved in. obviously he is being
led by others outside of CITES
Great action, thank all for doing this very much! The world need more action like this!
So where do I, as Secretary-General, stand on the issue of whether to destroy or not to
destroy confiscated elephant ivory and rhino horn? The starting point for the Secretariat in
considering any CITES issue is the Convention text and the Decisions and Resolutions
adopted by the Parties to CITES. They bind the CITES Secretariat, including myself, and we
adhere strictly to them. We are also mandated (under Article XII of the Convention) to
present suggestions to the Parties where we deem it necessary.

So, what then is the position of CITES Parties the 180 States that have joined the
Convention, on the issue of whether to destroy or not destroy confiscated elephant ivory and
rhino horn? The answer lies in a Resolution (Resolution Conf. 9.10 (Rev. CoP15), adopted by
CITES Parties in 1994, and updated in 2010, which recommends that:
Parties dispose of confiscated and accumulated dead specimens of Appendix-I species,
including parts and derivatives, only for bona fide scientific, educational, enforcement or
identification purposes, and save in storage or destroy specimens whose disposal for these
purposes is not practicable;
This Resolution, like all others, provides interpretive guidance on the legally-binding text of
the Convention. However, the language used in this Resolution may not be all that clear to
people who are not familiar with CITES terminology. So what does it mean in plain English?
Specimens is the language used in the Convention to refer to the plant or animal, or part
thereof, or any derivative (such as a manufactured product) that is in trade and it is defined
in the Convention text. Hence, in the context of this issue, the reference in the Resolution to
dead specimens of Appendix-I species, including parts and derivatives is referring to the
elephant ivory and rhino horn. (Another Resolution (Resolution Conf. 10.7 (Rev. CoP15) deals
extensively with the confiscation of live animals and plants)
The Resolution treats Appendix-I specimens very differently from those of species in
Appendices II and III. The reason for doing so is because specimens of Appendix-I species
generally cannot enter commercial trade, whereas Appendix-II and -III specimens can be
commercially traded if certain preconditions are met. The Resolution does allow for the
commercial sale of confiscated AppendixII and -III specimens under certain conditions, if the
country chooses to do so.
This Resolution is consistent with the Convention text, including on Appendix-I specimens
not (re)entering commercial trade. The guidance provided by the Resolution is that the
illegally traded and confiscated elephant ivory and rhino horn should be restricted to four
uses only, namely, bona fide scientific, educational, enforcement or identification purposes.
Where this is not practicable, two options are provided by the Resolution, namely to save the
specimens in storage or to destroy them.
As Secretary-General, I do not encourage or discourage countries (as States Parties to CITES)
to choose one option or the other. This is a matter for each country to determine for itself.
However, when a country takes a decision to publicly destroy its confiscated stockpiles of
elephant ivory or rhino horn, I do believe it presents a unique opportunity to draw public
attention to the scale, nature and impacts of the serious crimes that lie behind these
confiscations and to act as a deterrent to illegal trade and that is why I participate in such
events where I can.
In this context, it is worth noting that the Resolution goes on to recommend that:
Parties publicize information on seizures and confiscations when appropriate as a deterrent
to illegal trade, and inform the public about their procedures for dealing with seized and
confiscated specimens;
The events in Dongguan, Hong Kong SAR, and at the Dvr Krlov Zoo all attracted massive
media attention. Each event saw the country concerned publicly express its determination to
bring the illegal trade to an end and provided the opportunity to send out a clear message
that people who invest in this contraband face an ever increasing risk of detection and
serious punishment.
While the destruction of confiscated elephant ivory or rhino horn will not in itself stop the
illegal trade in elephant ivory or rhino horn, when coupled with rigorous and consistent
enforcement measures, it can serve as a deterrent to people from engaging in these illicit
activities.

http://voices.nationalgeographic.com/2014/10/20/cites-and-confiscated-elephant-ivory-andrhino-horn-to-destroy-or-not-destroy/
-C. Rincossi has not violated any Customary International Law
C.1 Obligatory prosecution by a State of its ambassadors for Wildlife Crime is not a
Customary International Law.
International law governs relations between independent States. The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law and established in order to
regulate the relations between these co-existing independent communities or with a view to
the achievement of common aims. Restrictions upon the independence of States cannot
therefore be presumed.
Rincossi in compliance to the Convention on International Trade in Endangered Species of
Wild Fauna and Flora had enacted legislation to protect wildlife and implement CITES. Under
the Rincossi Flora and Fauna Trafficking Act (Trafficking Act), international trade in violation
of CITES is prohibited, and the Trafficking Act provides for the confiscation of illegally traded
specimens.
Rincossi however in exercise of its sovereignty and its own cultural import, does not prohibit
domestic trade of legal ivory, which includes ivory that was obtained before 1977 and ivory
that was legally obtained. Accordingly, Ivory is a status symbol in Rincossi, and small ivory
carvings are often given as gifts, especially among the wealthier citizens.
Jurisprudence dictates it is not to be expected that in the practice of States the application
of the rules in question should have been perfect. Even the court does not consider that, for
a rule to be established as customary, the corresponding practice must be in absolutely
rigorous conformity with the rule.
*cite insufficient state practice for:
C.1.a arresting and prosecuting ambassadors
c.1.b arresting and prosecuting anybody for wildlife crimes.
C.2 lack of the requisite Opinio Juris to establish the practice as Customary Intl Law
* In relation to right to legation, inviolability of sovereignty, arresting and prosecuting an
ambassador is discretionary upon a statehence, Opinio Juris is not met. Thus, there is
Customary Intl Law regarding the issue
"Even if the rarity of the judicial decisions to be found . . . were sufficient to prove . . . the
circumstance alleged . . ., it would merely show that States had often, in practice, abstained
from instituting criminal proceedings, and not that they recognized themselves as being
obliged to do so; for only if such abstention were based on their being conscious of having a
duty to abstain would it be possible to speak of an international custom. The alleged fact
does not allow one to infer that States have been conscious of having such a duty; on the
other hand, . . . there are other circumstances calculated to show that the contrary is true."
Applying this dictum to the present case, the position is simply State concerned opt not to
prosecute Ambassador Cusi and others. In consonance with the provisions of Vienna
Convention on Diplomatic Relations of 1961 Article 29. Diplomats must not be liable to any
form of arrest or detention. They are immune from civil or criminal prosecution, though the
sending country may waive this right under Article 32. As in this case The Government of
Rincossi made a conscious decision to simply issue a written warning to Ambassador Cusi
and the 20 members of the Barnum Uritovsky. And deemed it appropriate to take no further
action against the group since their entire ivory supply has been confiscated and that they
will be monitored.

An act justified by the principle of nonintervention in the internal affairs of States verbalized
in the provisions of UNCAC in Artilcle 4. 2;
Nothing in this Convention shall entitle a State Party to undertake in the territory of another
State the exercise of jurisdiction and performance of functions that are reserved exclusively
for the authorities of that other State by its domestic law.
This discretion left to States by international law explains the great variety of rules which
they have been able to adopt without objections or complaints on the part of other States.
Hence in these circumstances all that can be required of a State is that it should not
overstep the limits which international law places upon its jurisdiction; within these limits, its
title to exercise jurisdiction rests in its sovereignty.
-D. Rincossis act in consonance with the General Principle of International Law.
1. Due Process of Law
The Republic of Rincossi on their diplomatic note sent on February 2, 2015, the government
acted in accordance to the General Principles of International law by issuing written warning
to the Ambassador accused and to the 20 members of Barnum Uritovsky. Added to it is the
continued monitoring of their activities and confiscation of the said item as the object of the
case. Meaning, the republic were able to justify the Due process of Law based on their
customary law aligned to international law.
Although Rincossi does not prohibit domestic trade of legal ivory in their country, the
government still imposed penalty on the people involved in this case by confiscating the
item, provide warning and conduct monitoring on their respective activities. In spite that the
matter is of domestic as stipulated in March 3, 2015 deplomatic note sent by Rincossi to
Aliya wherein, it is of the government discretion to decide not to prosecute the accused
especially of the diplomatic status and limited involvement in the operation. Still, the
government of Rincossi, provides penalty to them. That aspect, it concludes that the law,
with respect to international agreement, was provided in due process.
2. He who comes to court, must come with clean hands doctrine
Based on the case presented, Federal States of Aliya does not satisfy on their campaign in
preventing wildlife crimes. The Aliyan Ivory Trade Prohibition Act of 1980 somehow not fully
materialized and implemented in accordance to its mandate because of the underground
market existence. Based on the transcript submitted, limited prosecution was done to
impose this law.
Aliya, as to their claim to return the confiscated ivory items, somehow resulted to ambiguity
because of the possible use of it in illegal ivory trafficking by their own officials leading to
conclusion that this ivory be destroyed. As mention in diplomatic note sent on April 17, 2015
wherein as recommended by London Declaration in Paragraph 15 (II) that destroying this
ivory would send a much stronger and more effective message to the public than would
return to Aliya, where it could end up back on the illegal ivory market.
Thus, the Aliyan government, based on their argument, does not satisfy in protecting their
so called heritage wherein during its clarification regarding elephants and the confiscated
ivory in question number seventeen, is there any information regarding the amount of
illegal ivory traded on the Aliyan underground ivory market and how long that it has been
active, the answer is negative. Meaning, the government of Aliya is not of serious or does
not act proactively in preventing this illegal act.

3. Rincossis act is consistent with its sovereign authority

The Republic of Rincossi were able to execute the necessary requirement of their customary
law by imposing written warning on the accused as stipulated in clarification regarding
Ambassador Cusi and the Barnum Uritovsky question number nineteen wherein the answer
is that it permanently cease illegal activities and including other activity related to illegal
ivory. Including on that warning is the prosecution of Rincossi government to Ambassador
Cusi and the 20 members of Barnum Uritovsky on future illegal activity to maximum extent
provided by law.
Rincossis mandate by recognizing the pressing nature of protecting Thornon Elephants and
the growth of the illegal ivory markets in Aliya and Rincossi by amending the trafficking act
to strengthen its scope by increasing maximum penalty for a CITES violation to eight years
in prison.
Rincossis campaign made numerous confiscations of illegal ivory and the government
publicly destroyed several tones of illegal ivory. Rincossi government was the one initiating
the conduct of investigation to Cusi and informed Aliya regarding their findings. The
government confiscates and detained the accused. With this regard, it is a note, that
Rincossi act consistently with its sovereign authority. They were very true with their
campaign in exercising their supremacy by independently capturing those elements doing
illegal ivory trafficking without intervention of any foreign power.

===========================

State sovereignty is the supreme legal authority in relation to subjects within its territorial
domain. According to the Islands of Palmas case (USA v. the Netherlands), sovereignty in the
relation between States signifies independence. Independence in regard to a portion of the
globe is the right to exercise therein, to the exclusion of any other State, the functions of a
State.
Sovereignty is one of the fundamental rights of a State recognized under the International
Laws.
(States exist because they are accepted by other states into the international community of
states: their sovereignty is legitimised by other states recognition. Recognition by the
highest supranational entity, the United Nations, constitutes only the formal sealing of such
recognition, due to the fact that it is the community of states that constitutes the United
Nations themselves. (Direct quotation from an essay; kindly paraphrase.)
The Republic of Rincossi, being a State, has the right to exercise its function as State without
any intervention from other States. When it decided not to make any arrests or pursue
prosecutions of Ambassador Cusi or members of the Barnum Uritovsky, it is well within its
power and independence to exercise its function as a State. This exercise of function is to
the exclusion of any other State, including the Republic of Aliya.
Thus, The Government of the Republic of Rincossi did not violate any International law when
it has decided not to make any arrests or pursue prosecutions of Ambassador Cusi or
members of the Barnum Uritovsky.