IN THE

INTERNATIONAL COURT OF JUSTICE AT

THE PEACE PALACE, THE HAGUE
THE NETHERLANDS

Questions Relating to Cultural Property and the

Protection of Elephants

Federal States of Aliya

(Applicant)

V.

Republic of Rincossi
(Respondent)

MEMORIAL FOR APPLICANT

- Federal States of Aliya-

 TABLE OF CONTENTS

INDEX OF AUTHORITIES ……………………………………………………………… ii

STATEMENT OF JURISDICTION ……………………………………………………... iii
STATEMENT OF FACTS ……………………………………………………………….. iv
QUESTIONS PRESENTED …………………………………………………………….. v
SUMMARY OF ARGUMENT ……………………………………………………………. vi
ARGUMENT WITH POINT HEADINGS ………………………………………………..

I . REPUBLIC OF RINCOSSI HAS BREACHED ITS INTERNATIONAL

OBLIGATIONS BY FAILING TO PROSECUTE AMBASSADOR CUSI AND THE
20 MEMBERS OF THE BARNUM URITOVSKY FOR ILLEGAL TRAFFICKING
OF THORNON ELEPHANT IVORY
1.1 Rincossi violated the CITES
1.2 Rincossi violated the UNCAC
1.3 Rincossi violated the UNTOC
1.4 Rincossi has breached the principle of aut dedere aut judicare
1.5 Rincossi has Violated the Principle of Sustainable Development

II. RINCOSSI IS IN VIOLATION OF INTERNATIONAL LAW BY DESTROYING

THE CONFISCATED IVORY RATHER THAN RETURNING THE SAME TO THE
REPUBLIC OF ALIYA
2.1 Rincossi has an obligation to return the confiscated Ivory to Aliya
under CITES
`(a) Ivory of the Thornon elephants is cultural property of Aliya.
(b) Aliya has kept an inventory of the ivory.
(c) The said Wildlife Park is a “public institution” as per Article 7(b).

2.2 Rincossi has an obligation to return the confiscated Ivory to Aliya

under UNCAC
2.3 Rincossi has an obligation to return the confiscated Ivory to Aliya
under UNTOC
2.4 Rincossi has a customary obligation to provide restitution to Aliya as
per the ARSIWA
2.2.4 Aliya, as the injured State, can claim restitution.

CONCLUSION ………………………………………………………………………………

I
 INDEX OF AUTHORITIES

Treaties and Convention

Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3,
1973, 993 U.N.T.S. 243 [CITES]. ................................................................................ passim
United Nations Convention Against Corruption, 14 December 2005, 2349 UNTS 41 ............. 3
United Nations Convention against Transnational Organized Crime, 8 January 2001, G.A.
Res. A/RES/55/25 ......................................................................................................... passim
Vienna Convention on Diplomatic Relations, art 31, 18 May 1961, 500 U. N. T. S 95….5
Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 .......................
2African Convention on the Conservation of Nature and Natural Resources, Sept. 15, 19681001
U.N.T.S. 3. .................................................................................................................. 22

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S 79.................................... 22

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, November 14, 1970, 823 U.N.T.S.
231…………………………………………………………………………………….passim

Treatises
and Commentaries

BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2008) ............................................. 2

CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY:
DAVID MCCLEAN, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY ON THE UN
CONVENTION AND ITS PROTOCOLS (2007) ............................................................................. 4
JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART (1st ed. 2013)..................... 11
LORD MCNAIR, THE LAW OF TREATIES, (1961). ..................................................................... 15
M CHERIF BASSIOUNI & EDWARD M WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO
OPPENHEIM, INTERNATIONAL LAW (9th ed., 1992). ................................................................... 4
P ASKERUD AND E CLEMENT, PREVENTING THE ILLICIT TRAFFICKING IN CULTURAL PROPERTY
(1997). .................................................................................................................................. 15
ROSALIND REEVE, POLICING INTERNATIONAL TRADE IN ENDANGERED SPECIES – THE CITES
TREATY AND COMPLIANCE (2002) ........................................................................................ 7
SANDS & PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2012) ..................... 7
SATOW, DIPLOMATIC PRACTICE (6th ed. 2011). .......................................................................... 5
SHAW, PUBLIC INTERNATIONAL LAW (2008) ............................................................................. 7
VAUGHAN LOWE, SUSTAINABLE DEVELOPMENT AND UNSUSTAINABLE ARGUMENTS, reprinted
in International Law and Sustainable Development (Alan Boyle and David Freestone eds.
1999). ...............................................................................................................................
 ii

Statement of Jurisdiction
 In conformity with Article 40, paragraph 1of the Statute of the International Court
of Justice, the Federal States of Aliya and the Republic of Rincossi have agreed to
submit their differences about Questions relating to Cultural Property and Protection of
Elephants to the International Court of Justice by a joint notification to the Court of their
Special Agreement signed at Libreville, Gabon on June 19, 2015.

On June 25, 2015, the registrar addressed notification to the parties.

iii

Statement of Antecedent Facts

Aliya and Rincossi are coastal nations on two different continents. Aliya is a
developing country and the Thornon elephant plays a significant role in its
culture. Various legislations have been enacted in Aliya to prevent poaching
and illegal trade, in addition to the setting up of a National Park. Rincossi is a
rapidly developing state and its law permits domestic trade of legal ivory, but
has a legislation to protect wildlife and to check trade in illegally obtained
ivory.

Aliya is a developing country with a population of approximately

10,000,000 and 40% of the population lives on less than $1.25 per day
.Rincossi is a rapidly developing country with a population of approximately
600,000,000 people. The GDP of Rincossi is around $4.7 trillion.

In 1990, the Aliyan government enacted legislation declaring, that

“Thornon elephants and their parts and derivatives are of historical and
scientific importance to them”. In 1977, “Aliyan Wildlife Protection Act”
(Wildlife Act) came into force in Aliya, which criminalizes CITES violations
with the punishment of imprisonment for maximum ten years and a fine. The
Wildlife Act also provides for the confiscation of illegally traded wildlife
specimens and provides that such confiscated specimens shall be returned to
 the country of origin, if practicable .Under the “Aliyan Ivory Trade Prohibition
Act”, enacted in 1980, all ivory trade-both international and domestic-is illegal
in Aliya. The Aliyan Government prosecutes many cases involving ivory
trafficking but due to Aliya’s limited financial resources, some cases have not
been prosecuted.

In 1977, the Rincossi government enacted “Rincossi Flora and Fauna

Trafficking Act” (Trafficking Act), under which the international trade in
violation of CITES is prohibited along with the confiscation of illegally traded
specimens. However, Rincossi law does not prohibit domestic trade of illegal
ivory, which includes ivory that was obtained before 1977 and ivory that was
legally obtained. In 2010, the Rincossi government amended its Trafficking
Act by increasing the maximum penalty for a CITES violation to eight years in
prison along with the policy to destroy confiscated ivory if practicable .Since
the 2010 amendments, the Rincossi government has prosecuted only two
cases involving illegal ivory trade under the Trafficking Act .The large number
of Rincossi workers brought by the companies owned by the Rincossi
government in Aliya helped to stimulate the market for illegal ivory in both
Aliya and Rincossi, and Rincossi has become the primary destination for
illegal ivory from Aliya.

In July 2014, Ambassador Pam C. Cusi from Rincossi travelled to Thorno

on a diplomatic mission and was involved in transporting 25 kg of illegal
Thornon ivory from Aliya to Rincossi. Rincossi confiscated the same and
informed Aliya, pursuant to which the two countries agreed to conduct a joint
investigation. It was later discovered that Cusi’s act was part of a 20-member
operation of BU, who had been trafficking illegal ivory from Thornon elephants
from Aliya to Rincossi for three years. BU is a private group engaged in
international transport. About 1500 kg of ivory was confiscated from their
transport containers, but no members were arrested.

Aliya requested for prosecution of Ambassador Cusi and the 20 BU

members, as well as return of the Thornon ivory confiscated from all of them,
as under various treaties and CIL. Rincossi denied and declined, stating that it
is truly a domestic matter and decide by their discretion that prosecution of
Ambassador Cusi will not be executed, specially provided that she has
diplomatic immunity.

Failure to adjudicate the negotiations, both parties decided to submit the

matter before the International Court of Justice under a Special Agreement. In
this respect, Rincossi agreed to set aside the destruction of ivory until the
matter was determined by the ICJ.
 iv
Question Presented

1.) Whether or Not Republic of Rincossi has breached its international

obligations by failing to prosecute Ambassador Cusi and the 20 members of the
Barnum Uritovsky for illegal trafficking of Thornon Elephant Ivory

2.) Whether or Not ,Rincossi is in violation of international law by destroying the

confiscated Ivory rather than returning the same to the Republic of Aliya

Summary of Arguments

1.) Failure to arrest and prosecute Ambassador Cusi and the 20 members
Barnum Uritovskyin
The Republic of Rincossi has violated the international law by deciding not to
prosecute Ambassador Cusi and 20 BU members for the illegal smuggling of
Aliyan Ivory under signatory International Law. The discretion of Rincossi
constitutes a breach of obligation under various treaties and customary
International Law.Thus, this Court should declare that Rincossi has inconsistently
fulfilled their international obligations.

2.)Desistance of Rincossi to return the Confiscated Ivory, a violation of

international law ensued

Rincossi has violated CITES , UNCAC , UNTOC and Customary International

Law, as they levy an obligation upon the expressed request made by Aliya to
return the Ivory. Thus, Rincossi can be held liable as under the ARSIWA to
provide reparation by way of returning the ivory.

vi

ARGUMENTS/ GROUNDS IN SUPPORT OF THE POSITION

I
Republic of Rincossi has breached its international obligations by failing to
prosecute Ambassador Cusi and the 20 members of the Barnum Uritovsky
for illegal trafficking of Thornon Elephant Ivory.

Rincossi has an obligation to prosecute all the perpetrators under the

CITES1 that aims to eliminate exploitative trade practices threatening at risk
species.. Failure to do so, breach of its obligation ensued. In the case thereof ,
Rincossi’s conduct for non-pursuance of arrest against Ambassador Cusi and
BU 20 contravened the mandate of UNCAC2 and UNTOC3
.
1.1 Rincossi’s Obligation Under CITES

Rincossi, being a signatory , is required to penalize those who partake in

the illegal trade or possession of endangered species or their derivatives in
contravention of the CITES .The Republic of Rincossi has violated the
international law by deciding not to prosecute Ambassador Cusi and 20 BU
members for the illegal smuggling of Aliyan Ivory under signatory International
Law. The discretion of Rincossi constitutes a breach of obligation under various
treaties and customary International Law. Thus, this Court should declare that
Rincossi has inconsistently fulfilled their international obligations.

(a) Interpretation of the word ‘penalize’

While interpreting the provisions of a treaty, importance must be given to
its object and purpose, enshrined in the preamble 4, so as to maximize the
effectiveness of the provisions therein.5 Here, the preamble states that the
objective of CITES is to protect and conserve endangered species 6, and to
achieve this goal the parties are to regulate the trade of such species 7 - with due
importance and ‘strict regulation’ to be given to the Appendix I species,6 to which
the Thornon Elephants belong.8

1 Convention on International Trade in Endangered Species of Wild Flora and Fauna, art. VII (1)(a), March 3,
1973, 993 U.N.T.S. 243 [hereinafter CITES].
2 United Nations Convention Against Corruption, art. 30, 31, 14 December 2005, 2349 UNTS 41 [hereinafter
UNCAC].
3 United Nations Convention against Transnational Organized Crime, preamble, art. 11(1), 8 January 2001,
G.A. Res. A/RES/55/25 [hereinafter UNTOC].
4BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 281 (2008); Vienna Convention on the Law of
Treaties, art. 31(1), January 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT].
5Sir Humphrey Waldock, Special Rapporteur, 3rd Report on Law of Treaties, 1964 2 I.L.C. Yearbook 7 (1964),
U.N. Doc. A/CN.4/SER.A/1964/ADD.1; Territorial Dispute (Libya v. Chad), 1994 I.C.J. 7, ¶ 47 (February 3).
6 CITES, Art. III(B)(1).
7 CITES, Art. II(1).
8 R. 8.

1
In this regard, Article VIII mandates penalization by the parties. 9 We submit that a
narrow interpretation alluded to ‘penalize’ so as to read mere enactment of
legislation would prove to be ineffective. The CITES Secretariat 10 and various
Conference of Parties11 have stated that it is actual enforcement, and not merely
enacting of legislation, that lies at the crux of this Convention.

(b) Monitoring and Warning are not Sufficient to Satisfy Obligation

It is submitted that mere monitoring and warning do not satisfy the

obligations under CITES.The IUCN Legislative Guidelines have stated that
without effective penalties, enforcement becomesimpossible.12 The most severe
punishment must be meted out to those who commit offences with respect to
Appendix I species.13In the present matter, the Thornon elephants have
witnessed a decline of nearly half theirpopulation in the past decade14 and are of
immense cultural and ecological significance toAliya15. Rincossi is therefore
breaching it’s obligations under this convention by failing toprosecute
Ambassador Cusi and the 20 BU Members for their illicit smuggling of vast
quantities of ivory.

1.2 Rincossi has an Obligation to Prosecute Ambassador Cusi Under UNCAC

Rincossi’s obligations under the UNCAC mandate prosecution of

individuals who act in violation of the provisions of this treaty.16This is evinced by
the usage of ‘shall’ in the Article 30(1), as contrasted with provisions that are
‘weak’ in form as shown by the usage of ‘shall consider’ or ‘shall endeavour’
thereunder.17 By failing to prosecute Ambassador Cusi, Rincossi has breached
its obligation under this treaty. Furthermore, non-criminal sanctions may
accompany criminal sanctions, but may not be a substitute for them.

9 CITES, Art. VIII(1)(a).

10 CITES Secretariat, Notification to the Parties, No. 951 (29 January 1997).
11 CITES, Wildlife Trade Policy Reviews, Res. Conf. 15.2; CITES, African Elephant Action Plan and African
Elephant Fund, Res. Conf. 16.9.

12 IUCN Council, Guidelines for Legislation to Implement CITES, available athttps://portals.iucn.org/library/efiles/documents/EPLP-

026.pdf (last accessed July 24, 2015).

13 Id.

14 R. 2.

15R. 15

16 UnitedNations Convention Against Corruption, art. 30, 31, 14 December 2005, 2349 UNTS 41 [hereinafter
UNCAC].
17 U.N.O.D.C., LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST
CORRUPTION 104 (2012) [hereinafter UNCAC Legislative Guide].
.

Therefore,Rincossicannot state that it has fulfilled its obligation by monitoring and

sending a written warning in lieu of prosecution.We further submit that Aliya is
not breaching upon Rincossi’s sovereignty by calling upon itto fulfill their treaty
obligations. Sovereign protection pertains to matters purely domestic innature. 18
In the instant case, the matter is not solely domestic since the ivory in question
hasbeen smuggled from Aliyan territory.19 In any case, sovereign discretion, as
per article 4, onlyextends to interference that is forcible or otherwise coercive in
nature, depriving the state ofcontrol over domestic matters.20 Under the UNCAC,
prosecution is mandatory, while discretion may be exercised in determining the
degree of punishment. 21 Further, the principleof aut dedere aut judicare, or the
obligation to prosecute, is embodied in this convention. 22Therefore, Rincossi is
violating its obligations under this treaty by failing to prosecuteAmbassador Cusi
for illicit enrichment and misuse of her official capacity by smuggling 25kgs of
ivory.

Rincossi also cannot invoke the justification of diplomatic immunity or privileges

since the instant matter falls outside the scope of VCDR. As per Article 31(1),
immunity to diplomats is granted only in the receiving state and does not absolve
the diplomat’s liability altogether.23 Therefore, Rincossi cannot extend special
treatment to Ambassador Cusi as per this Convention.Thus, we submit that
Rincossi has breached its specific obligation to prosecute Ambassador Cusi
under the UNCAC.

1.3 Rincossi has an Obligation to Prosecute the 20 BU Members under UNTOC

The object of the UNTOC is to deny safe haven to those who partake in
transnationalorganized crimes, with emphasis given to crimes concerning wildlife
trafficking andcorruption.24 Article 11(1), pertaining to prosecution, is mandatory,
as evinced by usage of‘shall.’ While exercising discretion under this provision,
due importance must be given to thegravity of the offence. 25

18 Id, at 83.

19 UNTOC, Art. 3; DAVID MCCLEAN, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY ON THE UN

CONVENTION AND ITS PROTOCOLS 83 (2007); U.N.O.D.C., LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF
THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME 16 (2009).
20 R. 16, 31.
21 OPPENHEIM, INTERNATIONAL LAW 432 (9th ed., 1992).
22 U.N.O.D.C., TECHNICAL GUIDE TO THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL
ORGANIZED CRIME 82 (2009) [hereinafter UNTOC Technical Guide].
23 Rep. of the Int'l law Comm'n, 66th sess, May 5-June 6, July 7- August 8, 2014, U.N Doc. A/69/10 [hereinafter
ILC Final Report]; See also UNCAC LEGISLATIVE GUIDE, Supra note 16, at 135.

24 Vienna Convention on Diplomatic Relations, art 31, 18 May 1961, 500 U. N. T. S 95 [hereinafter VCDR];
SATOW, DIPLOMATIC PRACTICE, 150 (6th ed. 2011).
25 United Nations Convention against Transnational Organized Crime, preamble, art. 11(1), 8 January 2001,
G.A. Res. A/RES/55/25 [hereinafter UNTOC].

3
In this regard, the Convention has stated that a crime is serious if itconstitutes 4
years imprisonment.26 This is further evinced by the Resolutions of Parties at the
Doha Conference,27 calling for prosecution of offences relating to cultural
property andwildlife trafficking. Therefore, non-prosecution of the 20 BU
members violates Rincossi’s obligations under the UNTOC.Additionally,as
explained above, Aliya’s claim for prosecution does not breach
Rincossi’ssovereignty as per Article 4.28 Therefore, by failing to prosecute the 20
Barnum Uritovskymembers, Rincossi has violated and failed to fulfill its
obligations under the UNTOC.

1.4 Rincossi has breached the principle of aut dedere aut judicare

Rincossi has an obligation under customary international law to prosecute

Ambassador Cusi and the 20 BU members for their illicit smuggling of ivory, and
a failure to prosecute them is a breach of the principle aut dedere aut
judicare.This principle, which has acquired the status of custom, refers to the
obligation upon states to prosecute or extradite individuals who commit serious
international crimes.29 The offences thatfall under this principle are not
exhaustive and it extends to several other crimes.30 Toascertain what kind of
offences this applies to, the progressive development in this regardneeds to be
assessed.31While assessing such progressive development, due importance
must be given to the practicefollowed by States and the opinion juris that has
evolved.32 State Practice is reflected through the international acts of a State.33
The prosecution of individuals for wildlife traffickingcrimes, especially those
concerning elephants and rhinoceros, is now widely practiced by States, as is
evidenced through the vast number arrests for the same.34 Further, the increase
inthe quantity of legislations enacted by countries reflects the categorisation of
such offences asbeing serious in nature. 35 Moreover, the ‘aut dedere aut
judicare’ principle is embodied in both the UNCAC and the UNTOC; and has
been extensively discussed in relation to wildlife trafficking crimes.

26 UNTOC, Art. 2(b).

27 Doha Declaration on Integrating Crime Prevention and Criminal Justice, “Future we Want,”A/CONF.222/L.6.
28 See Section 1.1.2.
29 Rep. of the Int'l law Comm'n, 56th sess., Preliminary Remarks, 3 May-4 June and 5 July-6 August 2004, U.N.
Doc. A/59/10; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention
Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), 161 I.C.J. Reports
1999 (Weeramantry J., Dissenting); M CHERIF BASSIOUNI & EDWARD M WISE, AUT DEDERE AUT JUDICARE:
THE DUTY TO PROSECUTE OR EXTRADITE IN INTERNATIONAL LAW 3 (1995).
30 ILC Final Report, Supra note 22, at 3.
31 See BASSIOUNI at 29; See also ILC Final Report, supra note 22, at 17.
32 BASSIOUNI, Supra note 29, at 23; See also ILC Final Report supra note 22, at 17.
33 SHAW, PUBLIC INTERNATIONAL LAW 82 (2008); SANDS & PEEL, PRINCIPLES OF INTERNATIONAL
ENVIRONMENTAL LAW 112 (2012).
34 Lusaka Agreement Task Force, Operation Cobra II Evaluation Report 8 (2014),
35 I.C.R.C., Customary IHL Database, https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule45 <last
accessed July 24, 2015>; ROSALIND REEVE, POLICING INTERNATIONAL TRADE IN ENDANGERED SPECIES – THE
CITES TREATY AND COMPLIANCE 134 (2002).
4
In the instant case, the gravity of the offence perpetrated is extremely serious in
nature. From such offenses, there has been active participation of government
official of the state and considered as abusive and oppressive in nature to the
Thornon elephants that as a matter of fact the condition on their population was
dramatically decreasing.Thus, We therefore submit that the present case evokes
this principle of aut dedere aut judicare, and Rincossi, by failing to prosecute
Ambassador Cusi and the 20 Barnum Uritovsky Members, in in breach of this
customary principle.

1.5 Rincossi has Violated the Principle of Sustainable Development

By failing to prosecute Ambassador Cusi and the 20 BU Members as it

fails to deter crimes thus, Rincossi violated the principle of Sustainable
Development. In consideration of the protection in the environment , any crime
with regards to detrimental of the environmental resources of the state will be
efficiently prosecuted.
The non-prosecution of Cusi and the Barnum Uritovsky members fails to
achieve the purpose of deterring illegal trade, encouraging this illegal market at
the detriment of the elephants.Therefore we submitted that Rincossi has further
breached its obligations under customary international law of the principles aut
dedere aut judicare and sustainable development

1.2.3 Rincossi has State Responsibility to Prosecute for a Violation of

International Law

Rincossi has committed an internationally wrongful act by failing to

prosecute Ambassador Cusi and the 20 Barnum Uritovsky members and hence
its international responsibility is invoked.55 For the satisfaction of the first criteria
under Article 2 of ARSIWA, the conduct that is being questioned must be
attributable to the State.56 Instantly, the non-prosecution of the aforementioned
individuals is the act in question. The duty to prosecute rests squarely on the
shoulders of the State.57 For a conduct to be attributable to a State, it may also
be an omission58 - for example, in the Diplomatic Consular Staff Case the Court
made reference to the “inaction” and “failure to take appropriate steps” by the
Government of Iran.59

55 JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART 94 (1st ed. 2013).
56 Id.
57 Thomas
H. Youmans (U.S.A.) V. United Mexican States, 4 R.I.A.A. 61 (Perm. Court Arb. 1926); VIRGINIA
MORRIS & MICHAEL P. SCHARF, AN INSIDER’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
FORMER YUGOSLAVIA 64-65 (1995).
58 Id
59 Id.

5
 Similarly, Rincossi has failed to prosecute these individuals - an omission
on its part. Thus, act in question is directly attributable to the State, fulfilling the
first criteria. Secondly, the conduct must constitute a breach of an international
legal obligation in force for that State at that time.60 The same has already been
established in [1.1], [1.2.1] and [1.2.2]. Therefore, Rincossi bears responsibility
for its act of non-prosecution under international law.

II

Rincossi is in violation of international law by destroying the confiscated

Ivory rather than returning the same to the Republic of Aliya

Rincossi has certain binding treaty obligations to return the confiscated ivory to
Aliya. The relevant treaties in this regard are the Cultural Property Convention;
the CITES; the UNCAC and the UNTOC .

Rincossi has denied the request of Aliya to return the confiscated Ivory invoking
their internal law as a defense , preferring destruction over returning the Ivory.
This refusal constitutes a violation of its treaty obligations and the customary law.

Further, Rincossi also has a customary obligation under the ARSIWA to provide
restitution to Aliya .

2.1 Rincossi has an obligation to return the confiscated Ivory to Aliya under
CITES.

Rincossi has an obligation to return the confiscated Ivory under CITES because
the ivory in this case is a specimen of the endangered species. Thus, if rincossi
failed to return such request of Aliya, the main purpose of CITES , which is to
curb the trade of species and specimen of fauna, has been frustrated.

Under Cultural Property Convention which states that there should be a recovery
mechanisms for the prevention of cultural property. Furthermore, it is submitted
that as per Article 7(b), (a) the ivory is cultural property of Aliya; (b) aninventory
of the same has been maintained and (c) the Thorno Elephant Wildlife Park
comesunder “similar public institution”, enabling Aliya to claim return.

(a) Ivory of the Thornon elephants is cultural property of Aliya.

This Convention is premised on the concept of cultural nationalism, by virtue of

which State possess immense discretion in ascertaining their cultural property.
63
63 John Merryman, Two Ways of Thinking About Cultural Property, 80 AM J. INT’L L. 834, 842-43 (1986).

6
For any property to become “cultural property”, it must be so specifically
designated by the State along with its purpose, and must fall under one of the
broad categories listed in Article 1.64 Aliya has declared the Thorno elephants
and their “parts and derivatives” to be of cultural and scientific significance.65
The ivory of the Thorno elephants is also a rare specimen of fauna as per Article
1(a) of the Convention.

(b) Aliya has kept an inventory of the ivory.

Article 5(b) lays down the requirement for States to maintain proper inventories of
their cultural property to evince ownership.66 An estimate of the elephants in the
Thorno National Wildlife Park is maintained by Aliya.67 This acts as an inventory
oftheir ivory as well.

(c) The said Wildlife Park is a “public institution” as per Article 7(b).

The interpretation of “similar public institutions” in Article 7(b) should as per the
rule of ejusdem generis68.

“Museums” and “monuments” are institutions whose activities are aimed at

preservation of “cultural property”.69 The Thorno Elephant National Park, from
where the ivory was obtained70, is also one such institution

If such environmental measures are achieve, it will be tantamount that the

conditions under Art 7 (b) are in course of strictly compliance. Thus, Rincossi is
obligated to return all the confiscated ivory.

2.2 Rincossi has an obligation to return the confiscated Ivory to Aliya under
UNCAC.

Rincossi also failed to complied the the fundamental aspect of the UNCAC which
is asset recovery. Under art 57 provides that if the request for the confiscated
assets has been expressly executed by another State , the other states are
obliged to return the same. In the instant case, the applicable provision for return
of the confiscated ivory is Art. 57 (3) (c)

64 Cultural
Property Convention, art 4, 6.
65 R. 15.
66 P ASKERUD AND E CLEMENT, PREVENTING THE ILLICIT TRAFFICKING IN CULTURAL PROPERTY 23 (1997).
67 R. 16

68 LORD MCNAIR, THE LAW OF TREATIES, 402 (1961)..

69 International Council for Museums, ICOM Code of Ethics for Museums (Nov 4, 1986).
70 R. 16, R. 31.

7
However conduct of a state pursuant to this provision has to be in good faith. In
tha case thereof, the ivory had been confiscated by Rincossi as per Art. 31.
Further, the status of the ivory as cultural property and the DNA test performed
evinces Aliya’s ownership of the same. Thus, a good faith interpretation of”
priority consideration” as under art. 57(3) ( c) would mean return of such ivory to
Aliya

2.1 Rincossi has an obligation to return the confiscated Ivory to Aliya under
UNTOC.

Under Art. 13 which states that the parties shall give priority consideration to
return back the property upon request to the extent permitted by their domestic
law. Further, UNTOC resolutions urge States parties to give top priority in
returning the confiscated property if requested by the owner states. In the instant
case, Rincossi has confiscated the property under Art. 13 of UNTOC and
declined the request of Aliya to return the same, thereby Rincossi art. 14 of
UNTOC has been violated.

2.2 Rincossi has a customary obligation to provide restitution to Aliya as

per the ARSIWA

The ARSIWA is a codification of the customary law pertaining State

Responsibility.97 Article2 of the ARSIWA lays down two conditions that are
required to be satisfied to invokeresponsibility of a State – first, attribution of an
act or an omission to the State; and second,consequent breach of international
law.98
It is submitted that, the acts of smuggling by [2.2.1] Ambassador Cusi and
[2.2.2] the twentyBU members can be attributed to Rincossi. [2.2.3] The said acts
constitute a breach of customary international law. Thus, [2.2.4] Aliya can claim
restitution as a form of reparation2.2.1 The act of smuggling of 25 kgs of ivory by
Ambassador Cusi in July twenty14 can beattributed to Rincossi

First, if any individual performing the alleged act is an official of a State as

under Article 4 of the ARSIWA, the State is held responsible

97 Bosnia
Genocide, 2007 I. C. J 37, ¶ 379, 385,398.
98 CRAWFORD,
THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION,
TEXT AND COMMENTARIES (2002); Allott, State Responsibility and the Unmaking of International Law, 29
HARV.INT'L.L.J. 1, 10 (1988).

8
 . In addition to the person must also be an organ of the state as per
domestic law,99 the test is whether the said person was acting under the cloak of
governmental authority.100 Ambassador Cusi, by virtue of being a diplomat as
per Rincossian law and visiting Aliya for the purpose of a diplomatic mission101
is clearly an official and therefore an agent of the State. She also engaged in
smuggling while performing her diplomatic functions.

2.2.4 Aliya, as the injured State, can claim restitution.

As per Article 42 of the ARSIWA, the State raising a claim for a remedy needs to
be the “injured” State. In the instant case, the above-mentioned obligations are
owed to the international community at large. In breaching them, Rincossi has
caused injury to Aliya specifically, as the ivory was obtained from Thorno
Elephants in Aliya119. Thus, Aliya is an“injured” State.Further, as per Article 35,
restitution can be claimed as a remedy, if it is neither materially impossible nor a
disproportionate burden.120 The purpose of restitution is to re-establish status
quo.121 Here, since physical return of the elephants poached for the ivory is
physically impossible, return of the confiscated ivory is the next best alternative
for Aliya. It is further submitted that the same would not amount to a
disproportionate financial or infrastructural burden upon Rincossi.

In conclusion, Aliya can hold Rincossi responsible for all the acts of smuggling,
and claim return of all the confiscated ivory as a mode of reparation.

99 CRAWFORD, supra note. 23, at 98.

100 Petrolane,
Inc., Eastman Whipstock Manufacturing, Inc. and others v The Government of the Islamic
Republic of Iran, Iranian Pan American Oil Company and others, 131 Iran-U.S Cl. Trib. Rep. 518 ¶ 82, 83
(1991)
119 R. 31.
120 ARSIWA, art 31, 35.
See also Dinah Shelton, Righting Wrongs: Reparations In The Articles On State Responsibility, 96 AM. J. INT'L
L. 833, 835-6 (2002).
121 Chorz6w Factory (Germany v. Poland) 1928, P. C. I. J. (ser. A) No. 13, at 70 (September 13)..

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2.2.3 The acts of smuggling amount to breach of CIL

The acts of smuggling amount to a breach of the customary obligations of

Protection of Biodiversity and Sustainable Development. To prove custom, there
must be evidence of both State Practice and Opinion Juris.111 With regard to the
Protection of Biodiversity, the signing of treaties112 as well as agreements113
between States evince the same. Opinio Juris is evinced by GA Resolutions114
along with participation of States in various conferences and the declarations115
issued therein and a MoU signed under the CMS116. With regard to sustainable
development, as explained, sustainable development has acquired the status of
a custom.117
Various jurists also recognize the importance of conservation of endangered
species in the interest of biodiversity and sustainable development.118

111North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands) 1985 I. C. J. 1985, ¶ 77
(February 20).
112 CITES, Preamble; Convention on Biological Diversity, art 1,5, June 5, 1992, 1760 U.N.T.S 79 [hereinafter
CBD].
113 African Convention on the Conservation of Nature and Natural Resources, art. II, Sept. 15, 1968 1001
U.N.T.S. 3.
114 G.A Res 65/161 U.N. GAOR, 65th Sess., Supp No. 161, U.N. Doc. A/RES/65/161 (Vol. III) (Mar. 11, 2010);
The Future We Want, G.A Res 66/288 U.N. GAOR, 66th Sess., Supp No. 288, U.N. Doc. A/RES/66/288 (Vol
III) (Sept. 11, 2011).
115 Stockholm Declaration, supra note 53, Principle 2; Rio Declaration on Environment and Development, June
14, 1992, 31 I.L.M. 874, Chapter 15;
116 Memorandum of Understanding concerning Conservation Measures for the West African Populations of the
African Elephant, Nov. 22, 2005.
117 see Section 1.2.2.
118 Louis Sohn, The Stockholm Declaration on the Human Environment, 14 HARVARD INT’L L.J 424 (1973);
Gabcikovo, 1997 I.C.J. 7, ¶ 75

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 CONCLUSION

The applicant , the Federal states of Aliya , respectfully ask this Court to declare that the
Republic of Rincossi has breached its international law obligations with respect to:

1.) Failure to prosecute Ambassador Cusi and 20 Members of Barnum Uritovsky for
illegal trafficking of Thornon Elephant Ivory

2.) Refusal to return the confiscated Ivory to the Republis of Aliya

Respectfully Submitted

- Agents for Applicant –

Federal States of Aliya

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