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TEAM CODE: IV 8

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AT THE INTERNATIONAL COURT OF JUSTICE


AT THE PEACE PALACE, THE HAGUE, NETHERLANDS

THE CASE CONCERNING THE SUSPENSION OF MINING RIGHTS

THE DEMOCRATIC REPUBLIC OF KITANA


(APPLICANT)

Versus

THE REPUBLIC OF HELENGA


(RESPONDENT)

MEMORIAL FOR THE APPLICANT

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TABLE OF CONTENTS
INDEX OF AUTHORITIES.4
STATEMENT OF JURISDICTION6
ISSUES PRESENTED...7
STATEMENT OF FACTS8
SUMMARY OF ARGUMENTS...9
ARGUMENTS ADVANCED................................................................................................10
1. WHETHER OR NOT THE GOVERNMENT OF HELENGA HAS VIOLATED
INTERNATIONAL HUMAN RIGHTS BY DENYING THE RIGHT TO
DEVELOPMENT TO ITS CITIZENS....10
1.1 THE RESPONDENT HAS FAILED TO PROGRESSIVELY REALIZE THE
DEVELOPMENT OF ITS CITIZENS......10
1.2 THE RIGHT TO DEVELOPMENT IS AN INALIENABLE HUMAN RIGHT...11
1.3 THE GOVERNMENT OF HELENGA IS LIABLE TO PAY COMPENSATION TO
THE RESPONDENT FOR THE DESTRUCTION OF ITS ECONOMY AND ITS
NAME INTERNATIONALLY, APART FROM THE COMPENSATION FOR
VIOLATING THE MINING AGREEMENT ..12
1.3.1 THE RESPONDENT IS LIABLE TO PAY COMPENSATION UNDER THE
PRINCIPLES OF INTERNATIONAL LAW..................12
1.3.2 THE RESPONDENT IS LIABLE FOR INJURIES TO APPLICANTS AND
TO INDIVIDUALS, UNDER THE CONCEPT OF FAULT, AND DEFENCES
AND LIMITATIONS ON STATE RESPONSIBILITY..13
2. WHETHER OR NOT THE REPUBLIC OF HELENGA IS LIABLE TO PAY
COMPENSATION TO THE REPUBLIC OF KITANA15
2.1 THE RESPONDENT HAS VIOLATED TREATY OBLIGATION.15
2.1.1

RESPONDENT HAS VIOLATED THE PRINCIPLE OF GOOD FAITH AS


ENVISAGED

IN

THE

UN

CHARTER

AND

LAW

OF

TREATIES15
2.2 THE RESPONDENTS UNILATERAL DENUNCIATION IS AGAINST THE
PROVISIONS OF VCLT......17
2.3 THE RESPONDENT HAS THE OBLIGATION TO PERFORM THE KABIT
TREATY AND THE MINING AGREEMENT17
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2.4 THE APPLICANT IS ENTITLED TO SEEK COMPENSATION FOR THE
VIOLATION

OF

THE

KABIT

TREATY

AND

THE

MINING

AGREEMENT......19
2.5 THE RESPONDENT HAS FAILED TO COMPLY WITH PROCEDURE
PROVIDED FOR THE SUSPENSION OF TREATY AS PROVIDED UNDER
CUSTOMARY INTERNATIONAL LAW AND FURTHER RECOGNISED IN
THE VCLT, 1969..19
2.6 THE RESPONDENT IS REQUIRED TO PAY COMPENSATION TO THE
APPLICANT FOR BREACH OF THE AGREEMENT....21
3. WHETHER THE EIA MENTIONED BY THE RESPONDENT WAS CREDIBLE
ENOUGH FOR UNILATERAL SUSPENSION AND REVOCATION OF MINING
ACTIVITY RIGHTS.23
3.1 DUE PROCESS OF NOTIFICATION WAS NOT FOLLOWED....23
3.2 PREPARATION OF THE ENVIRONMENTAL IMPACT ASSESSMENT
DOCUMENTATION23
3.3 CONSULTATIONS ON THE BASIS OF THE ENVIRONMENTAL IMPACT
ASSESSMENT DOCUMENTATION......24

CONCLUSION AND PRAYER25

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INDEX OF AUTHORITIES

I.

TREATIES, CONVENTIONS AND CHARTERS

1. Additional Protocol, Geneva Conventions, 1949.


2. Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI.
3. Draft Principles on Human Rights and the Environment, Final Report on Human Rights
and Environment of 1994, E/CN.4/Sub.2/1994/9.
4. Geneva Convention (IV), 1949.
5. International Covenant on Economic, Social and Cultural Rights, 1966 (ICESCR).
6. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.TS. 331

II.

JUDICIAL DECISIONS & INTERNATIONAL ARBITRAL AWARDS

1. Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Judgement, 1949 I.C.J. Rep. 22, (Apr. 9, 1949).
2. Gabikovo-Nagymaros Project, (Hungary v Slovakia), Judgement, 1997 ICJ Reports 7,
(Sept. 25, 1997).
3. La Bretagne Arbitration, (Canada v. France), 82 I.L.R. 590 (1986).
4. Land and Maritime boundary between Cameroon and Nigeria, (Cameroon v. Nigeria),
1998 I.C.J. Reports, (11 Jun., 1998).
5. Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. U.S.A),
Judgment, 1986 I.C.J. Rep. 14, (Jun. 27, 1986).
6. Rainbow Warrior case, (New Zealand v. France), Arbitration Tribunal, 82 I.L.R. 500
(1990).
7. The Factory at Chorzw (Germany v. Poland), 1928 P.C.I.J. (Ser. A) No. 17, (Jul. 26, 1927)

III.

BOOKS, TREATISES AND WORKS OF PUBLICISTS

1. Ian Brownline, Principles of Public International Law, (6th Ed. 2004)


2. James Crawford, State Responsibility, (1st Ed., 2014)
3. Jimenez de Arechaga, State Responsibility for the Nationalization of Foreign Owned
Property," 11 N.Y.U. J. Intl Law & Politics 179 (1978).
4. Malcolm N. Shaw, International Law, (6th Ed., 2008)
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5. Oscar Schacter, Sharing the World's Resources (1977).
6. Schreuer, Unjustified Enrichment in International Law, 22 Amer. J. Comparative Law 281
(1974).
7. William Edward Hall, International Law, Clarendon Press (6TH ed. 1909).
8. Wald lockin Yearbook of International Law Commission, Vol. I, 1963.
IV.

DECLARATIONS/RESOLUTIONS/DECISIONS

1. Declaration on the Right to Development, 1986, UNGA Resolution 41/128 (4th December
1986).
2. G.G. Fitzmaurice, Second report on the Law of Treaties, Special Rapporteur, A/CN.4/107,
P26
3. Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1
(1992)
4. United Nations Security Council Resolution 418, Res. 4/1977 (4th November 1977);
United Nations Security Council Resolution, 5/1979 (27th April 2011).

V.

REPORTS/JOURNALS/ARTICLES

1. Draft Articles on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B.
Intl L. Commission 26, U.N. DOC. A/56/49(Vol. I)/Corr.4.
2. FAQs on Economic, Social and Cultural Rights, Office of the United Nations High
Commissioner for Human Rights.
3. Fifth Report of the International Law Commission on State Responsibility, UN Doc.
A/CN.4/380 and Corr. 1 (1984).
VI.

WEBSITES

1. www.icj.org
2. www.un.org
3. www.scconline.com
4. www.ohchr.org
5. www.curia.europa.eu
6. www.heinonline.com
7. www.jstor.org

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STATEMENT OF JURISDICTION

The Democratic Republic of Kitana (hereinafter Kitana) and the Republic of Helenga
(hereinafter Helenga) have agreed to submit this dispute Concerning suspension of mining
rights to the International Court of Justice pursuant to Article 40, paragraph 1 of the Statute of
this Court and by virtue of a Special Agreement signed in The Hague, The Netherlands. In
accordance with Article 36, paragraph 1 of the Statute, the Court has jurisdiction to decide all
matters referred to it for decision. Both parties shall accept the Courts decision as final and
binding and execute it in good faith.

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ISSUES PRESENTED

1. WHETHER OR NOT THE GOVERNMENT OF HELENGA HAS VIOLATED


INTERNATIONAL HUMAN RIGHTS BY DENYING THE RIGHT TO
DEVELOPMENT TO ITS CITIZENS.

2. WHETHER OR NOT THE REPUBLIC OF HELENGA IS LIABLE TO PAY


COMPENSATION TO THE REPUBLIC OF KITANA.

3. WHETHER THE EIA MENTIONED BY THE RESPONDENT WAS CREDIBLE


ENOUGH FOR UNILATERAL SUSPENSION AND REVOCATION OF MINING
ACTIVITY RIGHTS.

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STATEMENT OF FACTS
I. BACKGROUND OF PARTIES
The Republic of Helenga is a landlocked country in the continent of Lumia. Though rich in
both Mineral Resources and Biological diversity, it is listed as a least developed country by the
Economic and Social Council of the United Nations.
The Republic of Kitana is located in the continent of Pacifik, 4800 Kms. Away from the
Republic of Helenga. Kitana is one of the worlds fastest growing economies and has been
described as the manufacturing capital of the world. However, the amount of natural resources
(per capita) available within the territory of Kitana is far below international average.
Both the countries are members of the United Nations.
II.

ESTABLISHMENT OF BILATERAL INVESTMENT TREATY

Since 2010, the economy of Helenga had collapsed and living conditions for its people were
deteriorated significantly. The food production in the state had come to a standstill and the state
needed international food assistance to prevent widespread famine. In the year 2015, the
Republic of Helenga and the Democratic Republic of Kitana entered into a bilateral investment
treaty, namely KABIT, with the aim of creating favorable conditions for greater economic
cooperation. Subsequently, KitKat, a state owned entity of Kitana entered into an agreement
with the Republic of Helenga for the exclusive right of extracting mineral resources from the
Rabbi Moslem Natural reserve on the payment of 100 million USD to the Helenga
Government.
III.

SUSPENSION OF MINING ACTIVITIES

In the year 2016, a new government came to power in the Republic of Helenga due to a civil
war which led to the old government under the rule of Rabbi Moslem being overthrown. The
new government then conducted an Environmental Impact Assessment (EIA) of the proposed
mining project. On the basis of the findings of the EIA, the new government suspended and
revoked all the mining activity rights within the reserve.

Both the parties by an agreement entered into an agreement and agreed to submit the dispute
to ICJ.
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SUMMARY OF ARGUMENTS
1. WHETHER OR NOT THE GOVERNMENT OF HELENGA HAS VIOLATED
INTERNATIONAL HUMAN RIGHTS BY DENYING THE RIGHT TO
DEVELOPMENT TO ITS CITIZENS
Human rights are the rights inherent to all human beings. Human Rights are universal and
inalienable. They should not be taken away, except by due process or under specific situation.
Inalienable as the term suggest which cannot be taken away. All human beings are the central
subject to development and should be active participant to the opinion of right to development.

2. WHETHER OR NOT THE REPUBLIC OF HELENGA IS LIABLE TO PAY


COMPENSATION TO THE REPUBLIC OF KITANA.
It is humbly submitted that a Bilateral Investment Treaty KABIT was signed between the
contracting parties Helenga and Kitana with the aim of creating favorable conditions for greater
economic cooperation. KitKat, a state owned entity of Kitana, entered into an agreement with
the Republic of Helenga for the exclusive right of extracting mineral resources from the Rabbi
Moslem Natural Reserve on the payment of 100 million USD to the Helenga government. The
Republic of Helenga has unilaterally denunciated from the agreement and treaty by arbitrarily
and unjustly revoking all mining activitys rights.

3. WHETHER OR NOT THE EIA MENTIONED BY THE RESPONDENT WAS


CREDIBLE ENOUGH FOR UNILATERAL SUSPENSION AND REVOCATION
OF MINING ACTIVITY RIGHTS
It humbly submitted before the honourable Court that, the Respondent State never submitted
its EIA to the Applicant or any competent authority. It conducted an EIA and subsequently
suspended and revoked all mining activitys rights within the reserve. The credibility of EIA is
highly challenged by the Applicant. The crass act of suspending all the mining rights is arbitrary
in nature. Also, the Convention on Environmental Impact Assessment in Transboundary
context or the Espoo convention envisages certain procedures to be followed for conducting
the EIA. The Respondent has failed to adhere to such procedures.

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ARGUMENTS ADVANCED

1. WHETHER OR NOT THE GOVERNMENT OF HELENGA HAS VIOLATED


INTERNATIONAL HUMAN RIGHTS BY DENYING THE RIGHT TO
DEVELOPMENT TO ITS CITIZENS.

The Human Rights are rights inherent to all the human beings1. Human Rights are universal
and inalienable. They should not be taken away, except by due process or under specific
situation. Inalienable as the term suggests, which cannot be taken away.

1.1 THE RESPONDENT HAS FAILED TO PROGRESSIVELY REALIZE THE


DEVELOPMENT OF ITS CITIZENS.

The concept of progressive realization connotes that the states obligation in connection
to the economic, social and cultural rights under international human rights2. Each state
has the responsibility to achieve progressively and full realization of their rights 3. The
main basis of the connection that lies in the notion of the right to development is that it
recognizes development as a comprehensive economic, social, cultural and political
process in which all human rights can be fully realized4.

All human beings are the central subject to development and should be active
participant to the opinion of right to development. Every human has the right to take
part in the process of development5. The states have the primary obligation to create
conditions favorable for realization of the right to development6.The states have the
duty and the obligation to remove or eliminate obstacles from the right to development7.

Burns H. Weston, Encyclopedia Britannica, Britannica, (15th Ed., 2010).


FAQs on Economic, Social and cultural rights, Fact sheet 33, Office of the United Nations High Commissioner
for Human Rights.
3
Art. 2, International Covenant on Economic, Social and Cultural Rights (Adopted on 16 Dec. 1966)
4
Khurshid Iqbal, Declaration on right to development and implementation, University of Ulster.
5
ICESCR, supra note 2, Art.1(1).
6
Ibid, Art. 3(1).
7
Ibid, Art. 3(3).
2

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Since 2010, the economy of the Helenga has collapsed and living conditions for the
people of Helenga people have deteriorated significantly. The food production in the
state has come to a standstill, so much so that the state now relies on international food
assistance to prevent widespread of famine8. This is a consequence of failure of
government of Helenga to full fill basic necessary requirements and development to its
citizens along with the violation of their human rights in the stampede massacre of civil
war in 2016 which led to violation of the treaty and agreement by arbitrarily suspending
the mining rights of the Applicant, thereby committing a breach of International treaty.

1.2 THE RIGHT TO DEVELOPMENT IS AN INALIENABLE HUMAN RIGHT.

The Human Rights are universal and inalienable. The Commission passed two
resolutions9 as the right to development as human right10. Every human and all persons
and every human being have the right to enjoy and participate in the development and
fully realization of rights11. First generation and Second generation rights are to be
treated at par for its promotion, implementation and safe-guarding on the urgent basis12.
Right to development must be fulfilled so as to equitably meet developmental
environmental needs of present and future generations13.
In the Vienna conference, 1993, the consensus between the developed and developing
countries emerged as right to development as a human right14. Sustained actions are
required to be taken for rapid development in the developing countries15.
Hence, the Right to Development can be considered as an inalienable human right, the
Republic of Helenga, as a state, has the obligation to fully realize the right to
development.

Fact sheet, 3.
UNSC, Resolution 4/1977 (2011), UNSC, Resolution 5/1979 (2011).
10
Iqbal, supra Note 3.
11
Art. 1(1), Declaration on The Right to Development, 1986, adopted on 4th December 1986.
12
Iqbal, supra, Note 8.
13
Principle 3, Rio Declaration on Environment and Development, 1992.
14
Iqbal, supra Note 3.
15
UNGA Resolution, supra Note 9, Art. 4(1).
9

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1.3 THE GOVERNMENT OF HELENGA IS LIABLE TO PAY COMPENSATION
TO THE RESPONDENT FOR THE DESTRUCTION OF ITS ECONOMY, AND
ITS NAME INTERNATIONALLY, APART FROM THE COMPENSATION
FOR VIOLATING THE MINING AGREEMENT.

It is submitted that the reported civil war in the Respondent state, which resulted into
gross violation of human rights, internal disturbance, poor economy and lowering down
of reputation at the international level caused material injury. Therefore, the
Respondent is liable for the reparation.

1.3.1

THE RESPONDENT IS LIABLE TO PAY COMPENSATION UNDER


THE PRINCIPLES OF INTERNATIONAL LAW.

The source of compensation under the international law can be traced out under
"principles of international law or equity."16 International law and equity are
not mutually exclusive categories; the former encompasses much of the latter.
Equity can allow for the recovery of damages where the strict application of
legal formulas is not available, under theories of implied contract, constructive
trust, unjust enrichment and the like.

This principle has been adopted by the UN General Assembly Resolution 194
(III), paragraph 11 on December 11, 1948, upon which Palestinian claims for
refugee compensation are often based:
...and that compensation should be paid for the property of those choosing
not to return [to their homes] and for loss of or damage to property which,
under principles of international law or in equity, should be made good by the
Governments or authorities responsible (emphasis added).

Though the General Assembly resolution has only persuasive value but
pursuant to Article 10 of the UN Charter, in certain circumstances they can be
16

Jimenez de Arechaga, State Responsibility for the Nationalization of Foreign Owned Property, 11 N.Y.U. J. Intl
Law & Politics 179 (1978); Schreuer, Unjustified Enrichment in International Law; 22 Amer. J., Comparative
Law 281 (1974); and Oscar Schacter, Sharing the World's Resources (1977).
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considered persuasive restatements of existing law or can, if repeated over
time, "achieve the effect of such binding force through the acceleration of the
custom-generating process or through the doctrine of estoppel."17

1.3.2

THE RESPONDENT IS LIABLE FOR INJURIES TO APPLICANTS


AND TO INDIVIDUALS, UNDER THE CONCEPT OF FAULT, AND
DEFENCES AND LIMITATIONS ON STATE RESPONSIBILITY.

The claims for relief under international law always begin with the law of state
responsibility, which is considered to consist of the "secondary rules" that
determine the legal consequences of failure to fulfil substantive legal
obligations, which are considered the "primary rules." According to the
International Law Commission (ILC) 1996 Draft Rules on State
Responsibility, every act by a state which is wrongful under some "primary"
rule of international law imposes international responsibility on that state.

Wrongful acts occur when an injury is: (i)

caused by conduct consisting of an action or omission which is


attributable to the State under the international law; and

(ii)

that conduct constitutes a breach of an international obligation of the


State. However, a breach only occurs "if the act was performed at the
time when the obligation was in force for that State."18

A state that has committed such an internationally wrongful act is obligated


to: (i)

discontinue the act and restore the situation to the status quo ante;

(ii)

apply remedies provided under its internal law (if they exist) and to
pay appropriate compensation if restoration of the pre-existing status
is impossible; and

17

Luke T.L, The Right to Compensation: Refugees and Countries of Asylum, 80 Am. J. Intl. Law 532, 545 (1986).
Lee believes that Res. 194 has acquired such an authoritative status.
18
Articles 1, 3, 4, 17, 18(1). Report of the International Law Commission on the Work of its Forty-Eighth Session,
(A/51/10), (1996).
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(iii)

provide guarantees that the act will not recur.19

A state to which a claim is made must negotiate in good faith to resolve it.
Moreover, "Failure of a state to respond in good faith to a request for
negotiation may itself constitute a breach of an international obligation."20
Moreover, human rights law imposes obligations on all states to protect the
rights of all individuals, whether nationals, aliens or the stateless.
Nevertheless, actual international mechanisms for claiming remedies under
human rights law are limited in application and scope.21

19

Willem R., Fifth Report of the International Law Commission on State Responsibility, UN Doc. A/CN.4/380
and Corr. 1 (1984). Restatement (Third) of the Foreign Relations Law of the United States, sec. 901 (The
American Law Institute,1987).
20
Ibid
21
The UN Commission on Human Rights has noted that "the question of restitution, compensation and
rehabilitation of victims of grave violations of human rights and fundamental freedoms has received insufficient
attention and should continue to be addressed in a more systematic and thorough way at the national and
international levels." Preamble to Resolution 1997/29. Yet even the Commission is still in the process of
investigating this question. See its Resolution 1999/33.
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2. WHETHER OR NOT THE REPUBLIC OF HELENGA IS LIABLE TO PAY


COMPENSATION TO THE REPUBLIC OF KITANA.

It is humbly submitted that; indeed, the responsibility arises on the part of the Respondent to
pay compensation to the Applicant. A Bilateral Investment Treaty, namely KABIT, was signed
between contracting parties with the aim of creating favorable conditions for greater economic
cooperation. KitKat, a state owned entity of Kitana, entered into an agreement with the
Republic of Helenga for the exclusive right of extracting mineral resources from the Rabbi
Moslem Natural Reserve on the payment of 100 million USD to the Helenga government22.
The Republic of Helenga has unilaterally denunciated from the agreement and treaty by
revoking all mining activity rights within the reserve which is a breach of bilateral treaty
obligation and agreement by the government of Helenga.

2.1 THE RESPONDENT HAS VIOLATED THE TREATY OBLIGATION

The obligations may arise for a State by a treaty and by a rule of customary international
law or by a treaty and a unilateral act23. The Democratic Republic of Kitana suffered a
major setback due to revocation of all the mining activitys rights within the reserve
from the Republic of Helenga and attack on mining industries. The economy of Kitana
took a huge hit.

2.1.1

RESPONDENT HAS VIOLATED THE PRINCIPLE OF GOOD FAITH


AS ENVISAGED IN THE UN CHARTER AND LAW OF TREATIES.
It is submitted that the preamble of the UN Charter imposes an obligation on
the member nations to establish conditions under which justice and respect for
the obligations arising from the treaties and other sources of international law
can be maintained. Further Vienna Conventions on the Law of Treaties

22

Fact Sheet, 4, Line 11.


Military and Paramilitary activities in and against Nicaragua, (Nicaragua v. Unites States of America),
Judgement, 1986 I.C.J. Reports, 14, 177 (27 Jun. 1986); North Sea Continental Shelf Cases, (Federal Republic of
Germany v. Denmark; Federal Republic of Germany v. Netherlands) Judgment, 1969 I.C.J. Reports 3, 3839, (20
Feb. 1969)
23

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(Hereinafter referred as VCLT) in its preamble24 envisages the principle of good
faith which is specifically covered under Article 26 of it.25
Article 26 of the Vienna Conventions on the Law Treaties (Hereinafter referred
as VCLT) provides: Every treaty in force26 is binding upon the parties to it and
must be performed by them in good faith27. The Treaties are legally binding,
because there exists a customary rule of the international law that the treaties
are binding28. The binding effect of that rule rests in the last resort on the
fundamental assumption, which is neither consensual nor necessarily legal, of
the objectively binding force of the international law. The assumption is
frequently expressed in the form of the principle pacta sunt servanda.

The effect of a treaty upon the contracting parties is that they only are bound by
its provisions and must perform it in good faith29. As between the parties, the
provisions of a treaty prevail over any inconsistent rule of customary
international law, unless it constitutes a rule of jus cogens, a party may not invoke
the provisions of its internal law as justification for a failure to perform a treaty30;
this applies particularly to its failure to enact suitable laws to give effect to its
treaty obligations. Obligations may arise for a State by a treaty and by a rule of
customary international law or by a treaty and a unilateral act31.

It was noted that the International Law did not distinguish between contractual
and tortious responsibility, so that any violation by a state of any obligation of
whatever origin gives rise to a state responsibility and consequently to the duty
of reparation32. Article 37 of the ILC Articles provides that a state responsible
for a wrongful act is obliged to give satisfaction for the injury thereby caused in

24

Preamble, Vienna Convention on Law of Treaties, 1155 UNTS 331, (Adopted on May 23, 1969)
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
26
This includes treaties provisionally in force under Art. 25 of the Vienna Conventions: See ILC Commentary
(treaties), Art 23, para (3); YBILC (1966), ii, p 211.
27
The obligation of good faith includes the obligation of a party to a treaty to abstain from acts calculated to
frustrate the object and purpose of the treaty.
28
Oppenheim, International Law, (9th Ed. 1996), Pg. 1206.
29
VCLT, supra note 22, Art. 26.
30
Ibid, at Art. 27.
31
Nicaragua, supra Note 21. at 117.
32
Rainbow Warrior Case, (New Zealand v. France), 82 ILR 500 (1990) pp. 801; Malcolm Shaw, International
Law, Cambridge University Press, (6TH ed.) pg. 779.
25

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so far as it cannot be made good by restitution or compensation. Satisfaction may
consist of an acknowledgement of the breach, an expression of regret, a formal
apology or another appropriate modality33.

2.2 THE RESPONDENTS UNILATERAL DENUNCIATION IS AGAINST THE


PROVISIONS OF VCLT

Article 56 of the Vienna Convention lays down that the general rule is that in the
absence of provision in the treaty, a party may not withdraw from it or denounce it: but
denunciation or withdrawal are permitted on at least 12-month notice if it is established
that the parties intended to admit the possibility, or if a right of denunciation or
withdrawal may be implied by the nature of the treaty34.

It is evident from the facts of the case that there was no notice provided by the
government of Helenga or even any intimation to the Republic of Kitana regarding its
denunciation from the KABIT Treaty and consequently suspension of the mining
agreement. The denunciation on part of Helenga was invalid as it did not conform to
the Article 56 of Vienna convention as the treaty is silent on the intimation part of
denunciation.

2.3 THE RESPONDENT HAS THE OBLIGATION TO PERFORM THE KABIT


TREATY AND THE MINING AGREEMENT

The ICJ noted in the Competence of the General Assembly for the Admission of a state
to the United Nations case35 that the first duty of a tribunal which is called upon to
interpret and apply the provisions of a treaty is to endeavor to give effect to them in
their natural and ordinary meaning in the context in which they occur36.

33

Art. 37(3), ILC Commentary 2001, p. 263.


Oppenheim, International Law, (9TH Ed. 1996), Pg. 1299.
35
ICJ Reports, 1950, pp.4, 8; 17 ILR, pp. 326, 328.
36
La Bretagne arbitration, (Canada v. France), 82 ILR, pp. 590, 620.
34

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The International Court declared in the Nuclear Tests cases37 that:
One of the basic principles governing the creation and performance of legal
obligations, whatever their source, is the principle of good faith. Trust and confidence
are inherent in international co-operation, in particular in an age when this cooperation in many fields is becoming increasingly essential. Just as the very of pacta
sunt servanda38in the law of treaties is based on good faith, so also is the binding
character of an international obligation assumed by unilateral obligations. As the
International Court has noted, the principle of good faith relates only to the fulfilment
of existing obligations39
In re Thomas40 it was said by the United States Circuit Court that:
Where a treaty is violated by one of the contracting parties, it rests alone with the
injured party to pronounce it broken, the treaty being, in such case, not absolutely void,
but voidable, at the election of the injured party, who may waive or remit the infraction
committed, or may demand a just satisfaction, the treaty remaining obligatory if he
chooses not to come to a rupture.

Hall observes that:


In organized communities it is settled by municipal law whether a contract which has
been broken shall be enforced or annulled; but internationally, as no superior coercive
power exists, and as enforcement is not always convenient or practicable to the injured
party, the individual state must be allowed in all cases to enforce or annul for itself as
it may choose. The general rule then is clear that a treaty which has been broken by
one of the parties to it is not binding upon the other, through the fact itself of the breach,
and without reference to any kind of tribunal41.

37

ICJ Reports, 1974, pp. 253, 267;57 ILR, pp. 398, 412.
VCLT, supra note 22, Art. 26.
39
Land and Maritime boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), ICJ Reports, pp. 275,
304. (10 Oct., 2002).
40
(1874), 23 Fed. Cases, 927.
41
William Edward Hall, International Law, Clarendon Press (6TH ed. 1909) pg. 343.
38

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2.4 KITANA IS ENTITLED TO SEEK COMPENSATION FOR VIOLATING THE
KABIT TREATY AND KITKAT AGREEMENT.

The violation of the treaty and agreement by the government of Helenga entitles Kitana
for compensation. The violation of the unique interest of Kitana leads to breach of the
treaty and agreement. As the attack on mining industries is violation of the sovereignty
and integrity of the republic of Kitana which indeed constitutes an internationally
wrongful act42. The state responsible for an internationally wrongful act is under an
obligation to compensate for the damage caused thereby, insofar as such damages is not
made good by restitution43.

2.5 THE RESPONDENT HAS FAILED TO COMPLY WITH PROCEDURE


PROVIDED FOR THE SUSPENSION OF OBLIGATION UNDER THE
TREATY AS PROVIDED UNDER CUSTOMARY INTERNATIONAL LAW
AND FURTHER RECOGNISED IN THE VCLT, 1969.
The Articles 65 to 72 of the Vienna Convention on the Law of Treaties (Hereinafter as
VLCT) cover the provisions as to procedure required to be followed while withdrawing,
terminating and suspending the obligation under the treaty. The Article 65 more
specifically sets out the procedure required to be followed for suspension of Treaty. It
is submitted that the Respondent state has not complied with the procedure provided
for the suspension as set out in Treaty. As the agreement does not provide any specified
procedure to be followed for the suspension. Article 65 of the VCLT 44 provides the
procedure is required to be followed in such cases.

Draft Articles on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Intl L. Commission
26, U.N. DOC. A/56/49(Vol. I)/Corr.4
43
Ibid, Art. 36.
44
1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be
bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or
suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure
proposed to be taken with respect to the treaty and the reasons therefore.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months
after the receipt of the notification, no party has raised any objection, the party making the notification may carry
out in the manner provided in article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means
indicated in Article 33 of the Charter of the United Nations.
4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions
in force binding the parties with regard to the settlement of disputes.
42

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Article 65 constitutes two main procedural obligations. First, a party wishing to avoid,
suspend, or terminate a treaty must begin by notifying the parties of its intention.
Second, if any objection is raised by another party, a solution to the disagreement must
be sought by way of negotiation or by another measures indicated in Article 33 of UN
Charter.45 At the heart of Article 65 is therefore the notion that avoidance, suspension,
or termination of a treaty does not operate automatically and of itself.46 It cannot take
place at the sole will of any party.47

To maintain the principle of sovereign equality, and preserve the rights and interest of
all parties, Article 65 therefore construes treaty nullification, suspension or termination
as a process in which the alleged facts- and bona fide of the claimant are put to test.48
The reason was that some of the grounds for invalidating or terminating a treaty carry
definite risks to the security of treaties and that procedural provisions are the only
means of avoiding or reducing these risks.49

It is submitted that Respondent while acting on its Environment Impact Assessment of


2016 has suspended the mining agreement without complying with the due procedure
of suspension of agreements laid down in the VLCT. After suspension the negotiation
regarding compensation failed between parties. The same note was widely disputed by
the Applicant stating that Respondent has no proper authority to cancel the agreement
without its consent. Therefore, the unilateral act of suspension does not meet with the
procedure and the standards provided under customary international law as recognized
under the VCLT.

5. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in
paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance
of the treaty or alleging its violation.
45
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international
peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means.
46
G.G. Fitzmaurice, Second report on the Law of Treaties, Special Rapporteur, A/CN.4/107, P26.
47
Oliver corte, Pirre Klein, The Vienna Convention on the Law of treaties.
48
Wald lockin YILC, 1963, Vol I, P. 171.
49
supra, note 26, at 110.
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2.6 THE RESPONDENT IS REQUIRED TO PAY COMPENSATION TO THE
APPLICANT FOR BREACH OF THE AGREEMENT.

It has long been a general and undisputed principle of international law, going back to
Blackstone as well as Grotius, that where there is a legal right, there is also a legal
remedy or action at law whenever that right is invaded. This is the flipside of the
principle that states have the obligation to make restitution for their wrongful acts and
violations of international law. As a matter of international law, when a State breaches
a treaty obligation, its conduct is considered a wrongful act for which reparation is
due for any injury caused thereby. The basic principle that States are obligated to make
full reparation for any injury caused by an internationally wrongful act is set out in
Article 31 of the International Law Commissions Articles of State Responsibility50
ILC Article 251 provides that an internationally wrongful act occurs when there is a
State conduct that constitutes a breach of an international obligation of the State.
Thus, a failure by the Respondent State to accord treatment as set out in an applicable
investment treaty is an internationally wrongful act giving rise to the obligation to make
full reparation for any injury caused thereby.

Resolving issues over the nature or extent of the reparation to be made for the breach
of an international obligation is, in fact, one of the functions of the International Court
of Justice (ICJ). "Ordinarily, emphasis is on forms of redress that will undo the effect
of the violation."52 The Permanent Court of International Justice stated:

"Reparation must, as far as possible, wipe out all the consequences of the illegal act
and re-establish the situation which would, in all probability, have existed if that act
had not been committed."

James Crawford, The International Law Commissions Articles On State Responsibility (Cambridge University
Press 2002).
51
There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
52
Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations
of Human Rights and Fundamental Freedoms: Preliminary Report, UN Doc. E/CN.4/Sub.2/1990/10; Article
36(2)(d) of the Statute of the International Court of Justice.
50

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The Court then ruled that this can be accomplished through restitution in kind, or if that
is not possible, through just compensation, meaning "payment of a sum corresponding
to the value which a restitution in kind would bear," and "the award, if need be, of
damages for loss sustained which would not be recovered by restitution in kind or
payment in place of it," such as lost profits.

Article 13 to 15 of the Draft Articles of State Policy deals with the liability of the state
for the breach of treaty or contractual obligation. State responsibility for breach of a
treaty obligation depends upon the precise terms of the treaty provision alleged to have
been infringed. If the treaty provision is broken, responsibility follows. According to
PCIJ in the Chorzow Factory (indemnity) Case, it is a principle of international law that
any breach of an engagement involves an obligation to make reparation.

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3. WHETHER THE EIA MENTIONED BY THE RESPONDENT WAS CREDIBLE


ENOUGH FOR UNILATERAL SUSPENSION AND REVOCATION OF MINING
ACTIVITY RIGHTS.

It humbly submitted before this Court that, the Respondent State never submitted its
Environmental Impact Assessment (hereinafter EIA) report to the Applicant or any competent
authority. It conducted an EIA and subsequently suspended and revoked all mining activity
rights within the reserve53. The credibility of EIA is highly challenged by the Applicant. The
crass act of suspending all the mining rights is arbitrary in nature.
The EIA conducted by the Respondent is challenged as per the Convention54 on the following
grounds:

3.1 DUE PROCESS OF NOTIFICATION WAS NOT FOLLOWED.


It is submitted before this honourable court that the procedure laid down under Article
355 was not followed. It states that the Party of origin shall, for the purposes of ensuring
adequate and effective consultations under Article 556, notify any Party which it
considers may be an affected Party as early as possible and no later than when informing
its own public about that proposed activity57.
Also, it is pertinent to mention that there was no notification given on the part of origin
state for participation of the Applicant state during the conduct of the EIA. This shows
the mala fide intention of the Respondent for controlling the contents of the EIA and
moulding it into its favour.

3.2 PREPARATION OF THE ENVIRONMENTAL IMPACT ASSESSMENT


DOCUMENTATION.
It is submitted before this honourable court that, the EIA was conducted by Respondent
and later upon those findings on its own motion suspended and subsequently revoked

53

Fact Sheet, 5, Line 4.


Convention on Environmental Impact Assessment in a Transboundary Context, 1991.
55
ibid, Art. 3.
56
ibid, Art. 5.
57
Ibid, Art. 3(1).
54

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all mining activity rights within the reserve. It is nowhere mentioned that the EIA had
due contents as per Appendix-II of the convention. Also, it is pertinent to mention that
the Respondent has not submitted the copy of EIA neither to the Applicant and nor to
the competent authorities58.

3.3 CONSULTATIONS ON THE BASIS OF THE ENVIRONMENTAL IMPACT


ASSESSMENT DOCUMENTATION.
The Party of origin shall, after completion of the environmental impact assessment
documentation, without undue delay enters into consultations with the affected Party
concerning, inter alia, the potential transboundary impact of the proposed activity and
measures to reduce or eliminate its impact. Consultations may relate to:

A. Possible alternatives to the proposed activity, including the no-action


alternative and possible measures to mitigate significant adverse transboundary
impact and to monitor the effects of such measures at the expense of the Party
of origin

B. Other forms of possible mutual assistance in reducing any significant adverse


transboundary impact of the proposed activity; and

C. Any other appropriate matters relating to the proposed activity.

The Parties shall agree, at the commencement of such consultations, on a reasonable


time-frame for the duration of the consultation period. Any such consultations may be
conducted through an appropriate joint body, where one exists59.

Nothing as above mentioned was taken into consideration.

58
59

ibid, Art. 4.
ibid, Art. 5.
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CONCLUSION AND PRAYER

Wherefore in the light of facts stated, arguments advanced and authorities cited, it is humbly
prayed that this Honble Court may be pleased to declare that: -

A. The Respondent will either continue with the agreement or pay compensation.
B. The Respondent is liable for the violation of Human Rights
C. The Respondent should pay compensation of Hundred million USD for the destruction
of economy and the name of the Applicant internationally.
D. The EIA conducted by the Respondent is not in consonance with the procedures
provided in the convention.

AND/OR

The Court may also be pleased to pass any other order, which the court may deem fit in light
of Justice, Equity and Good Conscience.

All of which is Most Respectfully Submitted

Place: The Hague

S/d__________________

Date: __________

(Agents for the Applicant)

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