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612R

INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE


THE HAGUE, THE NETHERLANDS

THE 2017 PHILIP C. JESSUP INTERNATIONAL LAW


MOOT COURT COMPETITION

THE CASE CONCERNING


THE SISTERS OF THE SUN

FEDERATION OF THE CLANS OF THE ATAN


(APPLICANT)

v.

KINGDOM OF RAHAD
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

2017
PRELIMINARY PAGES

TABLE OF CONTENTS

TABLE OF CONTENTS i
INDEX OF AUTHORITIES v
STATEMENT OF JURISDICTION xvi
QUESTIONS PRESENTED xvii
STATEMENT OF FACTS xviii
SUMMARY OF PLEADINGS xxiii
PLEADINGS 1
I. RAHAD’S EXTRACTION OF WATER FROM THE AQUIFER DOES NOT 1
VIOLATE RAHAD’S INTERNATIONAL LEGAL OBLIGATIONS
GOVERNING THE PROPER USE OF SHARED RESOURCES.
A. RAHAD IS NOT BOUND BY ITS 22 MARCH 1993 DECLARATION. 1
1. Rahad’s undertaking on 22 March 1993 is not a unilateral act 2
strictu sensu.
a. Subjective intent is not present. 3
b. Objective intent is not present. 4
2. In any case, the obligations undertaken by Rahad were validly 4
revoked due to fundamental change in circumstances.
a. The change is objective. 5
b. The change is unforeseeable under the circumstances. 6
c. The change constituted an essential basis for Rahad’s 6
undertaking to comply with the obligations.
d. The change radically transforms the extent of the obligations to 7
be performed by Rahad.
B. ASSUMING RAHAD HAS UNDERTAKEN AN OBLIGATION TO EQUITABLY USE 7
WATERS OF THE AQUIFER, RAHAD IS ENTITLED TO INVOKE NECESSITY AS
A CIRCUMSTANCE PRECLUDING WRONGFULNESS.

1. An essential State interest is involved. 9


2. The threat to the essential State interest rises to the level of grave 9
and imminent danger.
3. Extraction is the only means available to safeguard Rahad’s 10
essential State interest.
a. Extraction does not seriously impair the essential interest of 10
Atania.
b. Extraction does not seriously impair an interest of the 11

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international community.
4. The general limitations for the legal operation of necessity do not 11
obtain.
C. RAHAD HAS COMPLIED WITH ITS OBLIGATIONS REGARDING THE PROPER 12
USE OF SHARED RESOURCES.
1. Rahad is justified in applying the proper use, not equitable use, 12
regime in utilizing the waters of the Aquifer.
2. Rahad has sovereignty over the portion of the Aquifer located 13
within its territory.
3. Rahad exercised such sovereignty in good faith and did not abuse 13
its rights.
D. IN ANY CASE, THE EXTRACTION IS EQUITABLE AS IT IS PRIMARILY 14
COMPELLED BY VITAL HUMAN NEEDS AND HUMAN RIGHTS OBLIGATIONS.
1. Rahad’s extraction pursues vital human needs. 15
2. Rahad caused significant harm to Atania. 15
II. RAHAD’S SAVALI PIPELINE OPERATIONS DOES NOT VIOLATE ANY 16
LEGAL OBLIGATIONS RELATING TO THE KIN CANYON COMPLEX.
A. RAHAD’S PIPELINE OPERATIONS COMPLIED WITH ITS OBLIGATIONS OF 17
CONDUCT UNDER THE WORLD HERITAGE CONVENTION (W.H.C.).
1. Rahad’s legal duties relating to the Complex under W.H.C. are 17
obligations of conduct.
a. Article 4 of the W.H.C. sets down the means of complying with 17
the obligation.
b. Obligations for the protection of cultural heritage under the 17
W.H.C. are international obligations to co-operate.
2. Rahad exercised due diligence in accordance with its capacity to 18
take preventive measures.
B. EVEN ASSUMING THAT RAHAD’S OBLIGATIONS WITH RESPECT TO THE 19
COMPLEX ARE OBLIGATIONS OF RESULTS, RAHAD’S PIPELINE OPERATIONS
DOES NOT VIOLATE ANY OF SUCH OBLIGATIONS.
1. Rahad does not violate the no harm principle. 19
a. The impact of the Savali Pipeline Operations is not of serious 19
consequence.
b. There is no clear and convincing evidence that the Savali 20
Pipeline Operations caused the damage to the Complex.
2. Rahad did not take any deliberate measure that would directly or 21
indirectly damage the Complex.

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C. IN ANY EVENT, THE RESULTING DAMAGE TO THE COMPLEX IS JUSTIFIED BY 21


PRESERVATION OF HUMAN LIVES.
III. RAHAD HAS NO OBLIGATION TO RETURN THE RUBY SIPAR. 22
A. THERE IS NO OBLIGATION UNDER CONVENTIONAL OR CUSTOMARY 22
INTERNATIONAL LAW FOR RAHAD TO REPATRIATE THE RUBY SIPAR TO
ATANIA.
1. As a mere signatory to the 1970 UNESCO Convention on the 22
Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property (“1970 UNESCO
Convention”), Rahad is not obligated to repatriate the Ruby Sipar
to Atania.
2. There is no customary international law obligation to repatriate 24
cultural property.
a. There is no relevant and consistent state practice to show that 24
repatriation of cultural property is customary international law.
b. There is no opinio juris supporting general state practice. 24
B. RAHAD HAS A BETTER TITLE TO POSSESS THE RUBY SIPAR. 25
1. Atania forfeited its right to possess the Ruby Sipar by declaring it 26
a seditious symbol.
2. Rahad has a better title to possess the Ruby Sipar as the new home 26
of the Kin.
IV. ATANIA MUST COMPENSATE RAHAD FOR ALL DIRECT AND 27
INDIRECT EXPENSES INCURRED AND ACCRUING AS A RESULT OF
ACCEPTING MEMBERS OF CLAN KIN FLEEING FROM ATANIA.
A. ATANIA COMMITTED THE INTERNATIONALLY WRONGFUL ACT OF CAUSING 27
THE MEMBERS OF KIN TO BECOME REFUGEES.

1. Those who fled from Atania for fear of arrest qualify as refugees 28
under the Refugee Convention.
a. Serious violation of the basic human rights to food and water 28
and self-determination of the Clan Kin amounted to
persecution.
b. The fear of persecution is well-founded. 29
c. The unlawful discrimination of the Kin by reason of their 30
membership in a particular group amounted to persecution.
2. Those who fled from Atania because of starvation are refugees 30
within the definition of the Refugee Convention applying the
evolutive and teleological means of treaty interpretation.
a. Expansion of the core definition is consistent with the Refugee 31
Convention’s nature as an international protection regime.

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b. The Refugee Convention is a living instrument to be interpreted 32


in the light of present conditions.
B. ATANIA COULD BE HELD LIABLE FOR COMPENSATION UNDER OTHER 32
LIABILITY REGIMES IN INTERNATIONAL LAW.
1. The complementary protection extended by Rahad to the Kin 32
Migrants compels Atania to compensate Rahad.
2. The principle of sic utere tuo ut alienum non laedas compels Atania 33
to compensate Rahad.
3. Atania may be held liable under the general principle of quasi- 33
contract.
C. COMPENSATION IS THE APPROPRIATE MEANS OF SATISFYING 34
RESPONSIBILITY.
1. Restitution is not adequate and practicable under the 34
circumstances.
2. Rahad after electing the form of reparation has given notice of its 34
claim for compensation.
PRAYER 35

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS


1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (28 July 28, 30, 31,
1951) 32, 33
1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (4 October 32
1967)
1992 Rio Declaration on Environment and Development, UN Doc. 13
A/CONF.151/26 (vol. I) (1992)
Convention Concerning the Protection of the World Cultural and Natural 17, 18, 19,
Heritage, 1037 U.N.T.S. 151 20
Statute of the International Court of Justice, 59 STAT 1055 (1945) 20
U.N.G.A., Convention on the Law of the Non-navigational Uses of International 13
Watercourses, U.N. Doc. A/RES/51/229 (1997)
UNESCO Convention on the Means of Prohibiting and Preventing the Illicit 23
Import, Export and Transfer of Ownership of Cultural Property, 823
U.N.T.S. 231 (14 Nov 1970)
United Nations, Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 23, 31
8 I.L.M. 679 (23 May 1969)

JUDICIAL DECISIONS
International Cases and Arbitral Decisions
A Racke GmbH & Co v Hauptzollamt Mainz, Case C-162/96 [1998] ECR 3655 7
Anglo-Iranian Oil Company Case (United Kingdom v Iran) (Preliminary 3
Objection), Judgment, I.C.J. Rep. 93 (1952)
Anglo-Norwegian Fisheries Case (United Kingdom v Norway), 1951 I.C.J. 117 24
(18 January 1951)
Armed Activities on the Territory of the Congo (Democratic Republic of the 3, 4
Congo v Rwanda), Judgment, I.C.J. Rep. 168 (2005)
Barcelona Traction, Light and Power Co, Ltd (New Application: 1962) (Belgium 33
v Spain), I.C.J. 1970 I.C.J. 3 (1970)
Border and Transborder Armed Actions (Nicaragua v Honduras), Judgment, 2
I.C.J. Rep. 69 (1988)
Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali), I.C.J. 4
Rep. (1986)
Case Concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment, 3
I.C.J. Rep. (1962)

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Certain German Interests in Polish Upper Silesia (Germany v Poland), Merits, 4


P.C.I.J., Series A, No. 7 (1926)
CMS Gas Transmission Company v Argentine Republic, ICSID Case No 8
ARB/01/08 (2005)
Dispute Regarding Navigational and Related Rights (Costa Rica vs. Nicaragua), 32
I.C.J. Reports 214, (2009)
Fisheries Jurisdiction (Spain v Canada), I.C.J. Rep. 58 (1998) 10
Fisheries Jurisdiction Case (UK v Iceland), I.C.J. Rep. 49 (1973) 5, 7
Gabčikovo-Nagymaros Project (Hungary v Slovakia), Judgment, I.C.J. Rep. 5, 6, 8, 9, 10
(1997)
Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v 2
Nigeria) (Preliminary Objections), Judgment, I.C.J. Rep. 63 (2002)
Legal Consequences of the Construction of the Wall in the Occupied Palestinian 8
Territory, Advisory Opinion, I.C.J. Rep. 136 (2004)
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; 23, 24
Federal Republic of Germany v Netherlands), I.C.J. Rep. 3 (1969)
Nuclear Tests Case (Australia v France), Judgment, I.C.J. Rep. 253 General List 2, 3
No. 58 (1974)
Nuclear Tests Case (New Zealand v France), Judgment, I.C.J. Rep. (1974) 2, 3
Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Rep. 20
14 (2010)
Rainbow Warrior Case, R.I.A.A Vol. XX 215-284 (1990) 8
Request for the Interpretation of the Judgment of 15 June 1962 in the Case 16, 20, 22
Concerning the Temple of Preah Vihear (Cambodia v Thailand), Provisional
Measures, Order, I.C.J. Rep (2011)
Request for the Interpretation of the Judgment of 15 June 1962 in the Case 16
Concerning the Temple of Preah Vihear (Cambodia v Thailand), Judgment,
I.C.J. Rep (2013)
Russian Claim for Interest on Indemnities (Russian v Turkey), P.C.A. (1912) 8
S.S. Lotus (France v Turkey), P.C.I.J. (ser. A) No. 10 (1927), 19 13
Status of Eastern Carelia, Advisory Opinion, P.C.I.J. (ser. B.), No. 5 (1933) 4
Trail Smelter Arbitration (US v Canada), 3 UNRIAA 1905) (1941) 19
Tyler v The United Kingdom, App No. 5856/72 (ECtHR, 1978) 32

National Case Laws


I.N.S. v Cardoza-Fonseca, 467 US 407 (1987); 29

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R v Secretary of State for the Home Department, 1 AII E.R. 193 (1988) 29

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Standards), in R. Wolfrum (ed.), Max Planck Encyclopedia of Public
International Law (2010)
Ziegler, Andreas R. & Jorun Baumgartner, Good Faith as a General Principle of 13
(International) Law, in ANDREW MITCHELL, GOOD FAITH AND
INTERNATIONAL ECONOMIC LAW (2015)

U.N. DOCUMENTS
Addendum to the Eighth Report on State Responsibility, by Mr. Robert Ago, U.N. 9
Doc. A/CN.4/318ADD.5-7
Crawford, James, Second Report on State Responsibility, I.L.C. 51st Session, 9, 18
A/CN.4/498 (1999)
Fitzmaurice II, G., Second Report on the Law of Treaties, A/CN.4/107, (1957) 5, 7
I.L.C. Draft Articles on the Law on Transboundary Aquifers, A/63/10 (2008) 13, 15
I.L.C., 2001 Draft Articles on Responsibility of States for Internationally 8, 12, 27
Wrongful Acts with commentaries, UN Doc. A/56/83 (2001)
I.L.C., 2006 Guiding Principles Applicable to Unilateral Declarations of States 2, 3, 5
Capable of Creating Legal Obligations, with Commentaries, YILC, vol. II,
Part Two (2006)
I.L.C., Draft Articles on Prevention of Transboundary Harm from Hazardous 18
Activities with Commentaries, YILC Vol. II, Part Two (2001)
I.L.C., Draft Articles on Responsibility of States for Internationally Wrongful 8, 27, 34
Acts, Supplement No. 10 A/56/10 (2001)

xiii
PRELIMINARY PAGES

I.L.C., Draft Articles on the Law on Transboundary Aquifers, with 13


Commentaries, Y.I.L.C. vol. II, part two (2008)
I.L.C., Report of the Commission on the Work of its Thirty-Second Session, U.N. 11
Doc. A/35/10 (1980)
I.L.C., Report of the Commission to the General Assembly on the Work of its 11
Fifty-first Session, Y.I.L.C. Vol. II, Part Two (1999)
I.L.C., Report of the International Law Commission on the Work of its Thirty- 33
Seventh Session, U.N. Doc.A/40/10 (1985)
Mandal, Ruma, Protection Mechanisms Outside of the 1951 Convention 33
(“Complementary Protection”), Legal and Protection Policy Research
Series, UNCHR for Refugees, PPLA/2005/02 (2005)I.L.C., Draft
Declaration on Rights and Duties of States, Y.B. Int'l L. Comm'n 178 (1949)
U.N. Commission On Economic, Social & Cultural Rights, General Comment 25
21: Right of Everyone to Take Part in Cultural Life, U.N. Doc. E/C.12/GC21
(21 Dec 2009)
U.N. Committee on Economic, Social and Cultural Rights (CESCR), General 6, 29
Comment No. 15: The Right to Water (Arts. 11 and 12 of the Covenant)
(2003)
U.N. Educational, Scientific and Cultural Organization, UNESCO Declaration 25
Concerning the Intentional Destruction of Cultural Heritage, UNESCO Doc.
32C/25 (17 July 2003)
U.N. High Commissioner for Refugees, Handbook and Guidelines on Procedures 28, 30
and Criteria for Determining Refugee Status: Under the 1951 Convention and
the 1967 Protocol relating to the Status of Refuges (2011), available at:
http://www.unhcr.org/3d58e13b4.pdf
UNCHR, UNCHR Compilation of Case Law on Refugee Protection In 28
International Law (2008), 4, available at
http://www.refworld.org/docid/47dfc8e32.html, accessed 24 November
2016.
UNESCO Intergovernmental Committee for the Protection of the World Cultural 19, 20
and Natural Heritage, Operational Guidelines for the Implementation of the
World Heritage Convention, UNESCO Doc WHC.15/01 (2015)
UNHCR, Introductory Note by the Office of the United Nations High 32
Commissioner for Refugees, Convention and Protocol Relating to the Status
of Refugees (August 2007), available at
http://www.unhcr.org/3b66c2aa10.html
UNHCR, The International Protection of Refugees: Interpreting Article 1 of the 31
1951 Convention Relating to the Status of Refugees (April 2001).
U.N.G.A., The Law on Transboundary Aquifer, A/Res/63/124 (2009) 15

xiv
PRELIMINARY PAGES

Yamada, Chusei, Special Rapporteur Second Report on Shared Natural 16


Resources: Transboundary Groundwaters, DOCUMENT A/CN.4/539 and
Add.1 (9 March and 24 April 2004)

MISCELLANEOUS
1970 UNESCO Convention Information Kit, CLT – 2014/WS/7/REV – May 23
2015
International Association of Refugee Law Judges: Seminar for New Refugee Law 28
Judges, Geneva, (1999)
International Law Association, Declaration of Principles of International Law 27
on Compensation to Refugees (1992)
Carlowicz, Michael, Global Temperatures in NASA Earth Observatory at 6
http://earthobservatory.nasa.gov/Features/WorldOfChange/decadaltemp.php
(last accessed 17 December 2016)
Morton, Robert, An Overview of Coastal Land Loss: With Emphasis on the 21
Southern United States, USGS Open File Report 03-337
RAJENDRA K. PACHAURI ET AL., INTERGOV‘TAL PANEL ON 6
CLIMATE CHANGE, CLIMATE CHANGE 2014: SYNTHESIS REPORT
7 (2014), available at http://ar5-
syr.ipcc.ch/ipcc/ipcc/resources/pdf/IPCC_SynthesisReport.pdf.

xv
PRELIMINARY PAGES

STATEMENT OF JURISDICTION

The Federation of the Clans of the Atan (“Atania) and the Kingdom of Rahad (“Rahad”)

have submitted by Special Agreement (“Compromis”) their differences concerning the Sisters of

the Sun and other matters, and transmitted a copy thereof to the Registrar of the International Court

of Justice (“I.C.J.”) on 12 September 2016 pursuant to Article 40(1) of the Statute of the I.C.J.

(“Statute”). Therefore, Atania and Rahad have accepted the jurisdiction of the I.C.J. pursuant to

Article 36(1) of the Statute.

xvi
PRELIMINARY PAGES

QUESTIONS PRESENTED

I. Whether Rahad’s extraction of water from the Aquifer violates Rahad’s

international obligations governing the proper use of shared resources.

II. Whether Rahad’s Savali Pipeline operations does not violate any legal obligations

relating to the Kin Canyon Complex.

III. Whether Rahad is entitled to retain possession of the Ruby Sipar.

IV. Whether Atania must compensate Rahad for all direct and indirect expenses

incurred and accruing as a result of accepting members of Clan Kin fleeing from

Atania.

xvii
PRELIMINARY PAGES

STATEMENT OF FACTS

COLLECTIVE RESOURCES AND NEEDS

Atania and Rahad are neighboring states occupying the Nomad Coast. Straddling the

border of both states is the Kin Canyon Complex (“Complex”) which houses several historic sites

of great interest. In 1990, both Atania and Rahad jointly proposed for it to be included in

UNESCO’s World Heritage List, which was accepted by the Committee as a mixed heritage site

in 1994.

Characterized by arid and semi-arid lands, and with a record low rainfall from 1983 to

1988, both states were forced to import water from other countries at a great expense. From 1999

until present, drought conditions have plagued the Nomad Coast. The Atanian State Weather

Service even reported an average temperature increase of 1.6˚C from 1970 to 2000, and expressed

concerns of a “long-term shortage of water for the peoples of both Rahad and Atania.”

For many generations, inhabitants have relied upon the discharge from the Great Inata

Aquifer (“Aquifer”), and on the first UN World Water Day, both states expressed a gesture of

cooperation to “preserve and protect the shared fresh water resources of the Nomad Coast”.

AN ACT TO SUSTAIN LIFE AND ITS UNINTENDED CONSEQUENCES

On formal orders of the queen, the Inata Logistic and Scientific Association, a Rahadi-

funded scientific organization, studied the feasibility and long-term effects of directly tapping the

Aquifer to meet Rahad’s growing need for water.

In 2003, Queen Teresa publicly set out her plans to address the increasingly serious water

crisis, which she has declared to be a very grave dilemma. Confronted with no obvious

economically viable nor practically possible solution, she ordered the Bureau of Interior

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PRELIMINARY PAGES

(“Bureau”) to extract life-giving water from the Aquifer so long as the drought conditions continue,

and so long as there is no other way of preserving the life and culture of Rahad.

The Bureau submitted the plan for the Savali Pipeline to the World Heritage Committee,

which expressed its concern on the potential subsidence of lands superjacent to the Complex.

Complying with the decision, Rahad limited drilling for extraction to areas more than 15

km. outside of the Complex’s buffer zone. The Savali Pipeline commenced operation in 2006,

pumping water at a consistent annual rate of 1.2 km3.

In 2009, Atanian farmers reported the drying up of wells, springs and small streams, and

the difficulty in farming lands which were previously arable. An international panel of experts

reported in 2010 that the Savali Pipeline caused a permanent lowering of the water table in the

region. Later in the year, tourists began posting images online showing what appeared to be

environmental degradation in remote sections of the Complex. Geologists attributed the problem

to the depletion of the Aquifer, but offered no opinion regarding effects of continued extraction.

In June 2011, Atania closed sections of the Complex after a sinkhole appeared. In 2012,

the UNESCO World Heritage Committee added the Complex to the List of World Heritage in

Danger.

THE KINS, THEIR SUFFERING AND THEIR EXODUS

Due to the loss of farmable lands, Atania determined that additional water must be allocated

to agriculture, and enacted the 2012 Water Resource Allocation Program (“WRAP”) Act which

set a quota on the water supplied by the State to every household, farm and business in Atania.

Under the Act, licenses were required for farming operations, exempting only farms that

sold more than US$75,000 worth of crops per year. Nearly 86% of farming operations in Atania

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PRELIMINARY PAGES

qualified for the exemption. Anyone exceeding the quota or those failing to obtain licenses were

to be prosecuted for “theft of public property”.

Fewer than 5% of Kin farmers applied for licenses before the end of 2012, and in August

2013, two Kin farmers were prosecuted for exceeding quota and failing to obtain a license.

Apart from arguing that the law was discriminatory against the Kin, both defendants

asserted that cultural traditions prevented them from seeking permission to make use of natural

resources. They were both convicted and sentenced to a five-year imprisonment and payment of

fine.

In 2013, the WRAP Act was amended, providing for the termination of state-controlled

water supply for violations of the Act. By the end of the year, Atania cut off water to the majority

of farms in Kin lands.

Subsistence farmers with terminated water supply abandoned farming, and had no other

means of securing sufficient food, according to the United Nations Food and Agriculture

Organization.

A report by the Red Cross and Red Crescent showed rapidly rising rates of food-

deprivation-related illnesses such as scurvy and beriberi among the Kin, with almost half of them

undernourished.

On 17 July 2014, Carla Dugo, an elder of the Sisters of the Sun, an order of women

dedicated to protecting and preserving the culture and traditions of the Kin, chained herself to a

flagpole in the plaza outside the President’s residence, in protest of the government’s persecution

of the Kin and the theft of their water, food and way of life. She called on her fellow Sisters to

“stand together” and remember Teppa, a legendary Kin warrior. Within two weeks, thousands had

congregated in the plaza, with Carla Dugo as the central figure of the movement.

xx
PRELIMINARY PAGES

In August 2014, President Vhen deployed armed police to arrest more than 800 Sisters of

the Sun and Kin protestors. The remaining demonstrators were driven from the plaza with tear gas

and rubber bullets. In the following days, over a thousand people were arrested across the country

- hundreds remain incarcerated as of the date of the Special Agreement.

In September 2014, Rahad reported that approximately 100,000 Kin had crossed into

Rahad for “fear of arrest” or were fleeing starvation. As of the date of the Special Agreement,

approximately 800,000 Kin had crossed the border. By August 2015, the International Rescue

Committee reported that the number of Kin in Rahad exceeded the capacity of the facilities created

for them, and that the national infrastructure “was being stretched beyond breaking point” with

sporadic power outages in 85% of the country and reduced access to clean water for more than

150,000 Rahadi families.

THE RUBY SIPAR

In 1903, the Ruby Sipar, a ceremonial shield laden with jewels, was excavated in the

Complex. According to legend, it was raised by Teppa after she had united the seventeen clans of

the Atan against a common warlord.

In honor of Teppa’s heroism, the Sisters of the Sun wear miniature replicas of the Sipar as

a symbol of their loyalty to the order and to Teppa.

During the protests in Atania, President Vhen declared the Ruby Sipar to be a symbol of

sedition, and ordered the destruction and confiscation of all its replicas. He also ordered for the

original Sipar to be removed from public display and to be placed in storage.

Carla Dugo, with the help of Center employees, removed the Ruby Sipar from the vault

in which it had been stored, and brought it with her to Rahad “to ensure its protection from

destruction”, also claiming that it belongs with the Kin, wherever they are.

xxi
PRELIMINARY PAGES

The Rahadi Minister of Culture notified Atania of the shield’s whereabouts, but refused

the request for the same to be repatriated.

xxii
PRELIMINARY PAGES

SUMMARY OF PLEADINGS

I.

Rahad’s extraction of water from the Great Inata Aquifer (“Aquifer”) does not violate

Rahad’s proper use of shared resources.

Rahad is not bound by its declaration on 22 March 1993 as such was not a unilateral

act strictu sensu. In any case, the obligations undertaken by Rahad have been validly revoked

under international law following fundamental change in circumstances.

Assuming that Rahad undertook an obligation to equitably use the Aquifer, Rahad may

invoke necessity as a circumstance precluding wrongfulness as an essential state interest is

involved which rises to the level of grave and imminent danger.

Further, extraction is the only means available to safeguard an essential State interest,

and Rahad is justified in applying the proper use regime in utilizing the Aquifer. It has sovereignty

over the portion of the Aquifer located within its territory, which it exercised in good faith. The

extraction does not seriously impair Atania’s essential interest or that of the international

community.

Finally, Rahad’s extraction is equitable as it is primarily compelled by the obligation

to address vital human needs and human rights. Rahad has no other option but to use the water in

the Aquifer to meet such obligation.

II.

Rahad’s Savali Pipeline Operations (“Pipeline Operations”) does not violate any legal

obligations relating to the Kin Canyon Complex (“Complex”).

xxiii
PRELIMINARY PAGES

The obligations under the World Heritage Convention (“WHC”) are obligations of

conduct which Rahad had complied with by taking due diligence and preventive measures in the

planning and implementation of the Savali Pipeline project.

Even assuming that the obligations under the WHC are obligations of result, the Pipeline

Operations does not violate such obligations. The Pipeline Operations caused no transboundary

harm. There is no direct link between damage to the Complex and the Pipeline Operations. In any

event, any impact caused by the Pipeline Operations was not deliberate, and did not reach the

required threshold of severity to amount to a violation of the no harm principle.

Assuming there was transboundary harm, damage to the Complex is justified to preserve

human lives.

III.

Rahad has no obligation to return the Ruby Sipar. There is no obligation under conventional

or customary international law for Rahad to repatriate the Ruby Sipar, and Rahad has a better title

to possess it.

As a mere signatory to the 1970 UNESCO Convention on the Means of Prohibiting and

Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, Rahad’s

obligation is merely to desist from performing acts which would render it incapable of complying

with the substantive obligations of the Convention. Rejecting the request for repatriation does not

violate that obligation.

Further, there is an absence of relevant and consistent state practice and opinio juris

establishing repatriation of cultural property has achieved customary international law status.

Finally, all States have an interest over cultural property. Atania forfeited its interest over

the Ruby Sipar when it declared the Ruby Sipar a seditious symbol. Additionally, since there is a

xxiv
PRELIMINARY PAGES

special bond between cultural property and the people, Rahad has a better title to possess the Ruby

Sipar as the new home of the Kin.

IV.

Atania must compensate Rahad for all direct and indirect expenses incurred and

accruing as a result of accepting the Kin migrants.

Atania committed an internationally wrongful act which caused the Kin to become

refugees. The serious violation of the Kin’s human rights to food and water, and self-determination

amounted to persecution, and the Kin migrant’s fear of persecution is well-founded.

Rahad submits that the Kin migrants who fled Atania because of starvation are considered

refugees within the Refugee Convention framework by interpreting the Convention in light of its

broader purpose and in light of present conditions.

Atania may be held liable under the general principle of quasi-contract, the abuse of rights

principle and complementary protection principle.

Compensation is the appropriate means of satisfying State responsibility as restitution is

neither adequate nor practicable under the circumstances. Rahad, as the injured State, has already

elected compensation as a form of reparation and notified the responsible State of such election.

In fact, the Rahadi Ambassador had already itemized its expenditures in the net amount of

US$945,000,000.

xxv
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

PLEADINGS

I. RAHAD’S EXTRACTION OF WATER FROM THE AQUIFER DOES NOT


VIOLATE RAHAD’S INTERNATIONAL LEGAL OBLIGATIONS GOVERNING
THE PROPER USE OF SHARED RESOURCES.

In the context of the first UN World Water Day celebration and as a declaration of general

policy relating to shared water resources, Rahad promised to make every reasonable effort to

preserve, protect and ensure the equitable use of fresh water resources it shares with Atania.1 When

the effects of extreme drought and climate changes adversely affected its domestic water needs,2

Rahad was forced to directly tap water from the Greater Inata Aquifer (“Aquifer”) through the

operation of the Savali Pipeline Project (“Pipeline Operations”).3 Presently, Rahad has extracted

approximately 12 cubic kilometers of water, which is well within the 65% portion of the Aquifer

exclusively situated within its territory.4

Rahad submits that its extraction of water from the Aquifer does not violate its international

legal obligations governing the proper use of shared resources as [A] it is not bound by its 22

March 1993 declaration. Even if bound, [B] Rahad is entitled to invoke necessity as circumstance

precluding wrongfulness. Further, [C] Rahad has complied with its obligations regarding the

proper use of shared resources. In any case, [D] Rahad’s extraction is equitable as it addresses vital

human needs and international human rights obligations.

A. RAHAD IS NOT BOUND BY ITS 22 MARCH 1993 DECLARATION.


1
Compromis, ¶16.
2
Compromis, ¶19–20.
3
Compromis, ¶26.
4
Compromis, ¶21.

1
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Every State can commit itself through acts whereby it unilaterally undertakes legal

obligations.5 However, the International Court of Justice (“I.C.J.”) noted that not all unilateral

declarations imply obligation.6 Good faith is not in itself a source of obligation where none would

otherwise exist.7

Accordingly, Rahad submits that [1] the declaration on 22 March 1993 is not a unilateral

act strictu sensu. Regardless, [2] the obligations created by such declaration have been validly

revoked following a fundamental change of circumstances.

1. Rahad’s undertaking on 22 March 1993 is not a unilateral act strictu


sensu.

A unilateral act strictu sensu is one formulated by a State with the intent to produce

obligations under international law.8 In the Nuclear Tests Case, the question of intent is central to

the existence of a unilateral act9 as it confers on the declaration the character of a legal

undertaking.10

Rahad submits that both [a] subjective and [b] objective intents are absent negating legal


5
I.L.C., 2006 Guiding Principles Applicable to Unilateral Declarations of States Capable of
Creating Legal Obligations, with Commentaries, YILC, Vol. II, Part Two (2006)
[hereinafter “I.L.C. Guiding Principles”].
6
Nuclear Tests Case (New Zealand v France), Judgment, I.C.J. Rep. (1974), ¶47 [hereinafter
“Nuclear Tests Case (New Zealand v France)”].
7
HUGH THIRLWAY, SOURCES OF INTERNATIONAL LAW (2014), 100; Land and Maritime
Boundary Between Cameroon and Nigeria (Cameroon v Nigeria) (Preliminary
Objections), Judgment, I.C.J. Rep. 63 (2002), ¶39; Border and Transborder Armed Actions
(Nicaragua v Honduras), Judgment, I.C.J. Rep. 69 (1988), ¶94.
8
I.L.C. Guiding Principles, 371; Eric Suy and Nicolas Angelet, Promise, in R. Wolfrum (ed.),
MPEPIL (2007), ¶23.
9
A. P. Rubin, The International Legal Effects of Unilateral Declarations, 71 American Journal
of International Law 1 (1977), 27; G. SCHWARZENBERGER, INTERNATIONAL LAW
AS APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS (1957), 554.
10
Nuclear Tests Case (Australia v France), Judgment, I.C.J. Rep. 253 General List No. 58
(1974), 267 [hereinafter “Nuclear Tests Case (Australia v France)”].

2
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

undertaking.

a. Subjective intent is not present.

Subjective intent11 refers to the State’s intention to be bound as determinative of the

binding force of a unilateral declaration12 and can be inferred from the statements’ contents.13

Intention becomes norm-creating if expressed in clear and unequivocal manner14 such that any

conduct not in conformity with the norm is identifiable.15

Here, intent cannot be clearly ascribed as Rahad’s promise to “make every reasonable

effort”16 to preserve, protect and ensure the equitable use of the shared water sources is qualified

by an indeterminate17 and ambiguous standard. In any case, any doubt as to the existence and scope

of the obligations must be interpreted restrictively,18 consistent with the settled presumption


11
Camille Goodman, Acta Sunt Servanda? A Regime for Regulating the Unilateral Acts of States
at International Law, 25 Australian Year Book of International Law 43 (2006).
12
G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1951-4: Treaty
Interpretation and Other Treaty Points, XXXIII British Yearbook of International Law
(1957), 230; Nuclear Tests Case (Australia v France), ¶43; I.L.C. Guiding Principles,
Principle 1.
13
Nuclear Tests Case (New Zealand v France), ¶53; Armed Activities on the Territory of the
Congo (Democratic Republic of the Congo v Rwanda), Judgment, I.C.J. Rep. 168 (2005),
¶50, 52 [hereinafter “Armed Activities”]; Case Concerning the Temple of Preah Vihear
(Cambodia v Thailand), Judgment, I.C.J. Rep. (1962).
14
Armed Activities, ¶50; Nuclear Tests Case (New Zealand v France), ¶46.
15
JEAN-PAUL JACQUÉ, ELÉMENTS POUR UNE THÉORIE DE L’ACTE JURIDIQUE EN
DROIT INTERNATIONAL PUBLIC (1972), 127.
16
Compromis, ¶16.
17
Armed Activities, ¶50-52.
18
Nuclear Tests Case (New Zealand v France), ¶44, 47; Anglo-Iranian Oil Company Case
(United Kingdom v Iran) (Preliminary Objection), Judgment, I.C.J. Rep. 93 (1952), 106-
8.

3
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

against the renunciation of rights by a state.19

b. Objective intent is not present.

All relevant20 factual circumstances must be considered in assessing the intentions of the

author of a unilateral act,21 underscoring the importance of objective standards.22

Here, the factual circumstances under which the statements were made corroborate23 the

lack of intent to be bound. Firstly, the statements were made during the celebration UN World

Water Day and in the context of a presentation of a general policy on the protection of water

resources.24 Secondly, as to timeliness, the statements were made five years after the drought that

struck the Nomad Coast,25 only three years after the discovery of the total area and location of the

Aquifer,26 but before information was obtained as to its volume and recharge rate.27 Thirdly, the

statements were made before drought conditions returned to the region and before the temperature

increase, meteorological and climatological changes threatened water security for Rahad and

Atania.28

2. In any case, the obligations undertaken by Rahad were validly revoked



19
A. Gigante, Unilateral State Acts, 2 New York University Journal of International Law and
Politics 333, 337 (1969).
20
Status of Eastern Carelia, Advisory Opinion, P.C.I.J. (ser. B.), No. 5 (1933), 28.
21
Case Concerning the Frontier Dispute (Burkina Faso v Republic of Mali), I.C.J. Rep. (1986),
¶40; Certain German Interests in Polish Upper Silesia (Germany v Poland), Merits,
P.C.I.J., Series A, No. 7 (1926), 25; Suy and Angelet, supra note 8, ¶12.
22
M. KOSKENNIEMI, FROM APOLOGY TO UTOPIA: THE STRUCTURE OF
INTERNATIONAL LEGAL ARGUMENT (1989), 307.
23
Armed Activities, ¶53.
24
Compromis, ¶16.
25
Compromis, ¶14, 16.
26
Compromis, ¶15.
27
Compromis, ¶18.
28
Compromis, ¶19.

4
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

due to fundamental change in circumstances.

Unilateral declarations may be rescinded following a fundamental change of

circumstances.29 Thus, pacta sunt servanda is limited by rebus sic stantibus, a moral argument

that provides that circumstances have fundamentally changed making the performance of

obligations more onerous.30

Thus, Rahad invokes rebus sic stantibus since the meteorological and climatological

changes amount to fundamental change of circumstances since it [a] is objective; [b] was

unforeseeable; [c] constituted an essential basis of the consent to be bound; and [d] radically

transforms the extent of the obligations to be performed.31

a. The change is objective.

The change contemplated by rebus sic stantibus goes beyond mere subjective change of

attitude32 or policy33 of the party invoking it. Hence, a change linked to the motives behind the

assumption or the continued performance of the obligations does not constitute in itself a

fundamental change.34

Here, meteorological and climatic changes are factors crucial to Rahad’s assumption of the


29
I.L.C. Guiding Principles, Principle 10(3); Victor Rodríguez Cedeño and Maria Isable Torres
Cazoria, Unilateral Acts of States in International Law, in R. Wolfrum (ed.), MPEPIL
(2013), ¶32; Fisheries Jurisdiction Case (UK v Iceland), I.C.J. Rep. 49 (1973), ¶36
[hereinafter “Fisheries Jurisdiction Case”]; Gabčikovo-Nagymaros Project (Hungary v
Slovakia), Judgment, I.C.J. Rep. (1997), ¶104 [hereinafter “Gabčikovo-Nagymaros
Project”].
30
M. SORNARAJAH, THE PURSUIT OF NATIONALIZED PROPERTY (1986), 109.
31
Fisheries Jurisdiction Case, ¶36.
32
OLIVIER CORTEN AND PIERRE KLEIN, THE VIENNA CONVENTIONS ON THE LAW
OF TREATIES: A COMMENTARY, VOLUME 1 (2011), 1424.
33
Wolff Heintschel von Heinegg, Fundamental Change of Circumstances, in R. Wolfrum (ed.),
MPEPIL (2006), ¶38.
34
Sir G. Fitzmaurice II, Second Report on the Law of Treaties, A/CN.4/107 (1957), 36.

5
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

obligations. Further, there was also a change in the development of international law regarding

human right to water, as evinced by General Comment 15 released in 2003,35 within the period

Queen Teresa invoked Rahad’s right and obligation to seek out ways to ensure its people’s access

to water.36

b. The change is unforeseeable under the circumstances.

Rebus sic stantibus is not available unless the change of circumstances is clearly a drastic

change from the circumstances anticipated by the parties.37

Here, the alleged obligations were assumed in 1993. Although climate change harm was

known and foreseeable at that time, its specific, destabilizing localized impacts were radical and

unforeseeable38 because climate science becomes less certain at the regional level.39 In fact, the

Nomad Coast experienced an alarming 1.6 degree Celsius average temperature increase from 1970

to 2000,40 which is 1.1 degrees higher than the global average in the same period.41

c. The change constituted an essential basis for Rahad’s undertaking


to comply with the obligations.


35
U.N. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.
15: The Right to Water (Arts. 11 and 12 of the Covenant) (2003). [hereinafter “G.C. 15”]
36
Compromis, ¶20.
37
Detlev F. Vagts, Rebus Revisited Changed Circumstances in Treaty Law, 43 Colum. J.
Transnat‘L L. 475 (2005); Gabčikovo-Nagymaros Project, ¶104.
38
RAJENDRA K. PACHAURI ET AL., INTERGOV‘TAL PANEL ON CLIMATE CHANGE,
CLIMATE CHANGE 2014: SYNTHESIS REPORT (2014), 7.
39
Sonia Rolland, et al., Taking Climate Change by Storm Theorizing Global and Local Policy-
Making in Response to Extreme Weather Events, 62 Buff. L. Rev. 969 (2014).
40
Compromis, ¶19.
41
J. Hansen et. al., Surface Temperature Change in Reviews of Geophysics, 48 (2010); Michael
Carlowicz, Global Temperatures, NASA Earth Observatory, available at
<http://earthobservatory.nasa.gov/Features/WorldOfChange/decadaltemp.php> (last
accessed 17 December 2016).

6
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Under this prong, the change must relate to a fact existing at the time the obligations were

assumed and which proved to be a decisive factor prompting the party to assume such

obligations.42 Thus, a nexus between the changed circumstances and the nature of the obligations

assumed needs to be established.43

Here, the stability of the environment constituted an essential basis for Rahad’s assumption

of obligations. It would not have assumed the obligations had it been aware of two decisive factors:

firstly, the volume and non-recharging character of the Aquifer44 and; secondly, the radical

increase in temperature in the Nomad Coast which heightens the problem on water security.45

d. The change radically transforms the extent of the obligations to be


performed by Rahad.

To constitute ‘radical transformation’, the change must have increased the burden of the

obligations to be executed rendering the performance of something essentially different from that

originally undertaken.46 Here, the changed circumstances are inextricably linked to the underlying

promise itself.47 Certainly, it would be onerous and unreasonable for Rahad to continue performing

the obligations without sacrificing its own essential interest.

B. ASSUMING RAHAD HAS UNDERTAKEN AN OBLIGATION TO EQUITABLY USE


WATERS OF THE AQUIFER, RAHAD IS ENTITLED TO INVOKE NECESSITY AS A
CIRCUMSTANCE PRECLUDING WRONGFULNESS.


42
CORTEN AND KLEIN, supra note 32; Fitzmaurice II, supra note 34, 33.
43
Von Heinegg, supra note 33, ¶38; A Racke GmbH & Co v Hauptzollamt Mainz, Case C-162/96
ECR 3655 (1998), ¶54-55.
44
Compromis, ¶18.
45
Compromis, ¶19.
46
Fisheries Jurisdiction Case, ¶43; CORTEN AND KLEIN, supra note 32;
47
Shalanda Baker, Climate Change and International Economic Law, 43 Ecology L.Q. 94
(2016).

7
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Necessity is a ground recognized by customary international law48 for precluding

wrongfulness of an act not in conformity with an international obligation 49 of whatever source. 50

Here, Rahad submits that it can lawfully invoke necessity under Article 25 of ARSIWA.51

Rahad will use the waters in the Aquifer “so long as the drought conditions continue” and so long

as there is “no other way” of “preserving the life and culture of the great Rahadi nation”.52

Based on international practice,53 case law54 and legal doctrine,55 a State may lawfully

invoke necessity when: [1] its essential interest is at stake; [2] the threat to such an interest is grave

and imminent; and [3] it had no other means of safeguarding the interest.


48
Gabčikovo-Nagymaros Project, ¶52; Legal Consequences of the Construction of the Wall in
the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Rep. 136 (2004), ¶141-142
[hereinafter “Wall Advisory Opinion”]; Federica Paddeu, Circumstances Precluding
Wrongfulness, in R. Wolfrum (ed.), MPEPIL (2014), ¶1.
49
Gabčikovo-Nagymaros Project, ¶51; BIN CHENG, GENERAL PRINCIPLES OF LAW AS
APPLIED BY INTERNATIONAL COURTS AND TRIBUNALS (1953), 69-77; Attila Tanzi,
State of Necessity, in R. Wolfrum, MPEPIL (2013), ¶1.
50
Sarah Heathcote, Circumstances Precluding Wrongfulness in the I.L.C. Articles on State
Responsibility, in JAMES CRAWFORD, et. al. (eds.), THE LAW OF INTERNATIONAL
RESPONSIBILITY (2013), 491; MCNAIR, ARNOLD DUNCAN, INTERNAL LAW
OPTIONS: VOLUME 2 (1956), 222-3.
51
I.L.C., Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement
No. 10, A/56/10 (2001) [hereinafter “ARSIWA”].
52
Compromis, ¶22.
53
See I.L.C., 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts
with commentaries, UN Doc. A/56/83 (2001), 80-83 [hereinafter “ARSIWA with
Commentaries”] (e.g. Anglo-Portuguese Dispute; “Caroline” Incident; Russian Fur Seals
Controversy; and Torrey Canyon Incident).
54
Gabčikovo-Nagymaros Project; Wall Advisory Opinion; Russian Claim for Interest on
Indemnities (Russian v Turkey), P.C.A. (1912); Rainbow Warrior Case, R.I.A.A Vol. XX
215-284 (1990); CMS Gas Transmission Company v Argentine Republic, ICSID Case No
ARB/01/08 (2005).
55
ARSIWA, Article 25; Roman Boed, State of Necessity as a Justification for Internationally
Wrongful Conduct, Yale Human Rights and Development Journal: Vol. 3, Iss. 1, Article 1
(2000).

8
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

1. An essential State interest is involved.

The class of interests under the necessity doctrine is not limited to interests in preserving

the very existence of the State.56 It may include a State’s political or economic survival or the

continued functioning of its essential services.57 Here, Rahad has an essential interest in ensuring

its citizens’ access to food and water.58

2. The threat to the essential State interest rises to the level of grave and
imminent danger.

Necessity serves as a preventative mechanism to manage crises which will lead to grave

harm if not averted.59 Thus, any threat likely to destroy the possibility of realizing an essential

State interest constitutes ‘grave peril’60. The imminence prong inquires into the immediacy and

proximity of the peril61 and does not preclude measure of scientific uncertainty.62

Here, the peril has actually materialized as in fact Rahad had been forced to import water

at great expense due to sustained drought conditions.63 These conditions are only getting worse as


56
Addendum to the Eighth Report on State Responsibility, by Mr. Robert Ago, U.N. Doc.
A/CN.4/318ADD.5-7 [hereinafter “Ago Report”], ¶12; Report of the International Law
Commission on the Work of its Thirty-Second Session, U.N. Doc. A/35/10 (1980), U.N.
Doc.A/CN.4/SER.A/1980/Add.1 (Part 2) [hereinafter “32nd Session Commentary”], 49,
¶32; OSCAR SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE
(1991), 71.
57
Ago Report, ¶2; 32nd Session Commentary, ¶3.
58
Compromis, ¶20, 22.
59
Heathcote, supra note 50, 497; Gabčikovo-Nagymaros Project, ¶54.
60
Boed, supra note 55, 28; 32nd Session Commentary, ¶33; Ago Report, ¶13; HUGO GROTIUS,
DE HURE BELLI AC PACIS, LIBRE TRES AT BK. III, CH. VII, ¶I.
61
Gabčikovo-Nagymaros Project, ¶54.
62
James Crawford, Second Report on State Responsibility, I.L.C. 51st Session, A/CN.4/498
(1999), ¶288-289.
63
Compromis, ¶14.

9
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

the combined impact of meteorological and climatic changes is likely to result in long-term water

shortage in the Nomad Coast.64

3. Extraction is the only means available to safeguard Rahad’s essential


State interest.

As the de facto threshold of necessity continues to “soften”65, the fact that lawful

alternatives have been proven ineffective may justify resort to means incongruent with

international obligations,66 so that the cost of alternatives also becomes material.67

Rahad has been importing water at great expense since 1983 even when drilling of wells

was permitted.68 As drought conditions have returned to the Nomad Coast and persisted to date,

and with record-low rainfall and temperature increases,69 Rahad is left without any other means

but to directly tap water from the Aquifer, 65% of which is located within its territory.70 Continuing

to import water will put a severe strain upon Rahad’s financial capacity thereby threatening yet

another essential State interest.

a. Extraction does not seriously impair the essential interest of Atania.

The interest sought to be safeguarded must outweigh the interest temporarily disregarded.71


64
Compromis, ¶19.
65
Francisco Orrego Vicuna, Softening Necessity, in MAHNOUSH ARSANJANI, et. al. (eds.),
LOOKING TO THE FUTURE: ESSAYS ON INTERNATIONAL LAW IN HONOR OF W.
MICHAEL REISMAN (2011), 750–51.
66
Fisheries Jurisdiction (Spain v Canada), I.C.J. Rep. 58 (1998), 431.
67
Boed, supra note 55, 18; Gabčikovo-Nagymaros Project, ¶55-57.
68
Compromis, ¶14.
69
Compromis, ¶19.
70
Compromis, ¶15.
71
Heathcote, supra note 50, 498; 32nd Session Commentary, ¶35.

10
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Here, Rahad’s interest to safeguard its citizens’ human right to water72 takes precedence over

Atania’s alleged economic losses.73 As a newly-industrializing State with a high GDP,74 Atania

could still safeguard its own interests despite the continued Pipeline Operations.

b. Extraction does not seriously impair an interest of the international


community.

The balancing test must also consider transnational interests.75 As I.L.C. notes, necessity

may not be invoked if the act seriously impairs some common or general interest that the obligation

is specifically established to protect.76 Here, Rahad owes no obligation to the international

community in relation to the proper use of shared resources. The status of fossil aquifers as natural

resources of an erga omnes character is not widely accepted.77

4. The general limitations for the legal operation of necessity do not


obtain.

The defense of necessity cannot be invoked when a peremptory norm is involved, when

the international obligation in question excludes the possibility of necessity, and when the invoking


72
Compromis, ¶20.
73
Compromis, ¶29.
74
Compromis, ¶2.
75
Boed, supra note 55, 41.
76
See I.L.C., Report of the Commission to the General Assembly on the Work of its Fifty-first
Session, Y.I.L.C. Vol. II, Part Two (1999), ¶374–391; James Crawford, Revising the Draft
Articles on State Responsibility, 10 Eur. J. Int’l L. 459 (1999).
77
Renee Martin-Nagle, Fossil Aquifers: A Common Heritage of Mankind, Journal of Energy and
Environmental Law 52 (2011); David Freestone, International Environmental Law:
Principles Relevant to Transboundary Groundwater, in SALMAN M.A. SALMAN (ED.),
GROUNDWATER: LEGAL AND POLICY PERSPECTIVES (1999).

11
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

State has contributed to the crisis.78 None of these limitations obtain and in any case, the

contribution of Rahad’s natural gas industry is merely incidental and peripheral.79

C. RAHAD HAS COMPLIED WITH ITS OBLIGATIONS REGARDING THE PROPER USE
OF SHARED RESOURCES.

Rahad’s extraction of water from the Aquifer is within its international legal obligations

because Rahad [1] is permitted to apply “proper use” regime in the context of climate change, [2]

has sovereignty over the portion of the Aquifer within its territory, and [3] exercised such

sovereignty in good faith and did not abuse its rights.

1. Rahad is justified in applying the proper use, not equitable use, regime
in utilizing the waters of the Aquifer.

Despite the near-universal acceptance for the governance of transboundary waters, the

applicability and value of the principles of equitable and reasonable utilization and of no harm are

limited in the context of climate change.80

The Aquifer, which is severely affected by climate change,81 is now removed from the

usual regime of equitable use. Rahad, a developing State suffering the effects of extreme drought

and climate change,82 may now be permitted to utilize its resources in the Aquifer as a sovereign


78
JAMES CRAWFORD, STATE RESPONSIBILITY (2014), 313; ARSIWA with Commentaries,
84.
79
JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON
STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (2002),
185.
80
Gabriel Eckstein, Water Scarcity, Conflict, and Security in a Climate Change World:
Challenges and Opportunities for International Law Policy, 27 Wis. Int’l L.J. 409 (2009).
81
Compromis, ¶19.
82
Compromis, ¶20.

12
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

State. In the absence of clear customary and conventional international law, restriction to a State’s

sovereignty is not presumed and that State must, hence, be free to act.83

2. Rahad has sovereignty over the portion of the Aquifer located within
its territory.

The Aquifer is unconfined,84 65% of which is exclusively located in Rahad85. The Draft

Articles on Transboundary Aquifers, which is anchored on the Watercourse Convention,86 provide

that each aquifer State has sovereignty over the portion of a transboundary aquifer located within

its territory.87 It also recognizes traditional notions of sovereignty over natural resources,88 as

reflected in many treaties and legal instruments involving natural resources.89 Thus, Rahad has

sovereignty over the 65% portion of the Aquifer located within its territory.

3. Rahad exercised such sovereignty in good faith and did not abuse its
rights.

The exercise of permanent sovereignty considers the principle of good faith,90 which

requires fair treatment and truthful representation of motives.91 Here, Rahad performed careful


83
See S.S. Lotus (France v Turkey), P.C.I.J. (ser. A) No. 10 (1927), 19.
84
Clarifications, ¶1.
85
Compromis, ¶15.
86
U.N.G.A., Convention on the Law of the Non-navigational Uses of International
Watercourses, U.N. Doc. A/RES/51/229 (1997).
87
Draft Article on Transboundary Aquifers, Article 3.
88
Gabriel Eckstein, Commentary on the U.N. International Law Commission's Draft Articles on
the Law of Transboundary Aquifers, 18 Colo. J. Int’l Envt’l. L. & Pol’y 537, 561 (2007).
89
I.L.C., Draft Articles on the Law on Transboundary Aquifers, with Commentaries, Y.I.L.C.
Vol. II, Part two (2008), 39; 1992 Rio Declaration on Environment and Development, UN
Doc. A/CONF.151/26 (Vol. I) (1992), Principle 2.
90
NICO SCHRIJVER, SOVEREIGNTY OVER NATURAL RESOURCES: BALANCING
RIGHTS AND DUTIES (1997), 343.
91
Anthony D’Amato, Good Faith, in RUDOLF BERNHARDT (ED.), ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW, VOL. 2 (1995), 599; Andreas R. Ziegler & Jorun

13
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

study and environmental assessment, 92 and submitted the plan of its Pipeline Operations to the

World Heritage Committee (“Heritage Committee”) 93 before commencing operations despite its

pressing water crisis.94 Subsequently, Rahad complied with World Heritage Committee’s decision

by limiting the drilling fifteen kilometers outside the buffer zone.95

Further, abuse of rights as limitation to utilization of natural resources96 requires positive

bad faith, as when the damage caused by the utilizing State is greater than its own gain.97 Here,

Rahad’s extraction is within its 65% entitlement of the resource.98 Atania may still use the 35% of

the Aquifer if it chooses to also extract water rather than depend on seepages99 for its agriculture.

D. IN ANY CASE, THE EXTRACTION IS EQUITABLE AS IT IS PRIMARILY COMPELLED


BY VITAL HUMAN NEEDS AND HUMAN RIGHTS OBLIGATIONS.


Baumgartner, Good Faith as a General Principle of (International) Law, in ANDREW
MITCHELL, GOOD FAITH AND INTERNATIONAL ECONOMIC LAW (2015);
92
Compromis, ¶21; Clarifications, ¶3.
93
Compromis, ¶24.
94
Compromis, ¶20, 22.
95
Compromis, ¶26.
96
Steven Reinhold, Good Faith in International Law, 2 UCLJLJ 40 (2013); Michael Byers,
Abuse of Rights: An Old Principle, A New Age, 47 McGill L.J. 389, 423 (2002).
97
Alexandre Kiss, Abuse of Rights, in R. Wolfrum (ed.), MPEPIL (2006), ¶4(f).
98
Compromis, ¶15.
99
Compromis, ¶34.

14
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Equitable does not mean “equal”.100 Thus, factors concerning equitable utilization must be

considered as a whole,101 which factors put premium to vital human needs,102 including the

production of food in order to prevent starvation.103

Here, Rahad’s Pipeline Operations [1] pursues vital human needs and [2] did not cause

significant harm to Atania.

1. Rahad’s extraction pursues vital human needs.

Rahad is obliged to fulfill and protect104 its citizens’ right to water under the ICCPR and

ICESCR.105 Rahad’s extraction pursues vital human needs, as 70% of the extracted water serves

agricultural purposes.106 Unlike Atania which exports grains,107 Rahad exports natural gas,108

which means that the food it produces from agriculture is primarily consumed by its citizens. The

proportion in which the water extracted was used vis-à-vis Rahad’s economic interests109 shows

that extraction is primarily compelled by vital human needs.

2. Rahad caused significant harm to Atania.


100
U.N.G.A., The Law on Transboundary Aquifer, A/Res/63/124 (2009).
101
Draft Articles on Transboundary Aquifers, Art. 5(2).
102
Id.
103
Dr. Rani Khooshie Lal Panjabi, Not a Drop to Spare: The Global Water Crisis in the Twenty-
First Century, 42 Ga. J. Int'l & Comp. L. 277 (2014), 384-385.
104
Amy Hardberger, Whose Job Is It Anyway?: Governmental Obligations Created by the Human
Right to Water, 41 Tex. Int'l L.J. 533, 567 (2006).
105
Clarifications, ¶10.
106
Compromis, ¶26.
107
Compromis, ¶2.
108
Compromis, ¶3.
109
Compromis, ¶26.

15
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

The duty not to cause significant harm to other States is a cornerstone doctrine applicable

to transboundary water resources.110 Harm must rise to the level of “significant”,111 which is a

flexible and a relative threshold.112

Here, the Pipeline Operations did not cause significant harm to Atania. While Atania

reports drying up of farmlands affecting its agriculture,113 Atania’s largest source of revenue,

which is the exportation of hydrocarbons114 remained unaffected allowing it to continuously

import water115 despite drops in its GDP.116

II. RAHAD’S SAVALI PIPELINE OPERATIONS DOES NOT VIOLATE ANY


LEGAL OBLIGATIONS RELATING TO THE KIN CANYON COMPLEX.

Beyond States are human beings who compose and socially organize themselves.117 In this

cultural heritage case, there is epistemologically no inadequacy to extend protection also to human

life and not only to the cultural and spiritual needs of the populace.118


110
Eckstein (2009), supra note 80.
111
Id.
112
Chusei Yamada, Special Rapporteur Second Report on Shared Natural Resources:
Transboundary Groundwaters, Document A/CN.4/539 and Add.1 (9 March and 24 April
2004), ¶25.
113
Compromis, ¶27-28.
114
Compromis, ¶2.
115
Clarifications, ¶9.
116
Compromis, ¶2.
117
Separate Opinion of Judge Cançado Trindade in Request for the Interpretation of the
Judgment of 15 June 1962 in the Case Concerning the Temple of Preah Vihear (Cambodia
v Thailand), Provisional Measures, Order, I.C.J. Rep (2011), ¶114 [hereinafter “Request
for Interpretation (Temple of Preah Vihear, Provisional Measures)”].
118
Request for the Interpretation of the Judgment of 15 June 1962 in the Case Concerning the
Temple of Preah Vihear (Cambodia v Thailand), Judgment, I.C.J. Rep (2013), ¶32
[hereinafter “Request for Interpretation (Temple of Preah Vihear)”].

16
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Rahad submits that [A] its conventional obligations of conduct are complied with. [B]

Assuming that there are obligations of results under international law, Rahad has not violated these

obligations. In any event, [C] the damage caused to the Kin Canyon Complex (“Complex”) is

justified by the preservation of human lives.

A. RAHAD’S PIPELINE OPERATIONS COMPLIED WITH ITS OBLIGATIONS OF


CONDUCT UNDER THE WORLD HERITAGE CONVENTION119.

1. Rahad’s legal duties relating to the Complex under W.H.C. are


obligations of conduct.

Rahad’s obligations under the W.H.C. with respect to the Complex are obligations of

conduct since [a] they set down the means of compliance and [b] and compel States to co-operate.

a. Article 4 of the W.H.C. sets down the means of complying with the
obligation.

An obligation of conduct is une obligation de s’efforcer’, i.e. an obligation to endeavor or

to strive to realize a certain result.120 Such obligations focus on the means to be adopted and the

‘particular action’121 to be undertaken.

Article 4 provides the specific conduct of identification, protection, conservation,

presentation and transmission to future generations.122 This is clearly an obligation of conduct

since it sets down the means to set up, not the end result.

b. Obligations for the protection of cultural heritage under the W.H.C.


are international obligations to co-operate.


119
Convention Concerning the Protection of the World Cultural and Natural Heritage, 1037
U.N.T.S. 151 [hereinafter “W.H.C.”].
120
Pierre-Marie Dupuy, Reviewing the Difficulties of Codification: On Ago’s Classification of
Obligations of Means and Obligations of Result in Relation to State Responsibility, EJIL
10, no. 2 (1999), 375.
121
Rüdiger Wolfrum, General International Law (Principles, Rules and Standards), MPEPIL
(2010), ¶85.
122
Dupuy, supra note 120, 381; W.H.C., Article 4.

17
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

All international obligations to co-operate may be qualified as obligations of conduct,123 as

in the case of the obligations for the protection of cultural and natural heritage under the W.H.C..124

Obligations of conduct are more likely to be imposed in the context of direct State-to-State

relations, whereas obligations of result predominate in the treatment of persons within the internal

legal order of each State.125

The efforts of States to preserve, conserve and identify cultural and natural heritage under

the W.H.C. call for international assistance and co-operation and the establishment of a system of

international cooperation and assistance.126

2. Rahad exercised due diligence in accordance with its capacity to take


preventive measures.

The obligation of the State of Origin to take preventive or minimization measures is one of

due diligence.127 The duty of due diligence is an obligation of conduct128 with a standard of

reasonable proportionality and appropriateness to the degree of risk of transboundary harm in any

particular instance.129 It is not intended to guarantee that significant harm be totally prevented, if

it is not possible to do so. What is required is for the State of Origin to exert its best possible efforts

to minimize the risk.130


123
Wolfrum, supra note 121, ¶85.
124
W.H.C., Article 4-7.
125
Crawford, supra note 62, ¶54.
126
W.H.C., Article 4,7.
127
I.L.C., Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with
Commentaries, YILC Vol. II, Part Two (2001), 154 [hereinafter “Preventive Articles”].
128
Timo Koivurova, Due Diligence, MPEPIL (2015), ¶1.
129
Julio Barboza, THE ENVIRONMENT, RISK AND LIABILITY IN INTERNATIONAL LAW
(2010), 15; Attila Tanzi, Liability for Lawful Acts, MPEPIL (2013), ¶6.
130
Preventive Articles, 154.

18
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Observing risk assessment as required by international law,131 Rahad directed the Inata

Logistic and Scientific Association to study the feasibility and long-term effects of directly tapping

the Aquifer.132 Also, under the Operational Guidelines for the implementation of the W.H.C.133

and in compliance with its duty under Article 4 of the W.H.C., Rahad submitted the Savali Pipeline

plan to the Heritage Committee for reactive monitoring to determine whether the project to be

undertaken may have an impact to the Complex.134 Rahad proceeded but implemented preventive

measures nonetheless by limiting its drilling fifteen kilometers outside the Complex’s buffer zone,

in compliance with the Convention.135

B. EVEN ASSUMING THAT RAHAD’S OBLIGATIONS WITH RESPECT TO THE


COMPLEX ARE OBLIGATIONS OF RESULTS, RAHAD’S PIPELINE OPERATIONS DO
NOT VIOLATE ANY OF SUCH OBLIGATIONS.

1. Rahad does not violate the no harm principle.

The Tribunal in Trail Smelter Arbitration confirmed the existence of the no harm rule in

international law and specified that the injury in question had to be “of serious consequence” and

“established by clear and convincing evidence”.136

a. The impact of the Savali Pipeline Operations is not of serious


consequence.


131
See Trail Smelter Arbitration (US v Canada), 3 U.N.R.I.A.A. 1905 (1941).
132
Compromis, ¶20-21.
133
UNESCO Intergovernmental Committee for the Protection of the World Cultural and Natural
Heritage, Operational Guidelines for the Implementation of the W.H.C., UNESCO Doc
W.H.C..15/01 (2015), ¶169-170 [“W.H.C. Operational Guidelines”].
134
W.H.C. Operational Guidelines, ¶169-171; Compromis, ¶24.
135
W.H.C. Operational Guidelines, ¶103.
136
Jutta Brunnée, Sic Utere Tuo Ut Alienum Non Laedas, MPEPIL (2010), ¶10.

19
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

The absence of severity and “urgency of a real and imminent risk that may cause irreparable

prejudice”137 is evident in Atania’s failure to file provisional measures,138 continuous offering of

the Complex to tourists,139 and failure to request international assistance under the W.H.C..140

These facts prove that the alleged harm was never immediately severe141 and was ‘normally

tolerable’.142

b. There is no clear and convincing evidence that the Savali Pipeline


Operations caused the damage to the Complex.

There is uncertainty where sufficient or conclusive scientific evidence is missing to link an

activity with the occurrence of harm.143 Here, although geologists attribute the alleged structural

degradation of the Complex to subsidence due to depletion of the Aquifer, it is inconclusive

whether the continued extraction would cause further damage.144

Land subsidence, the primary reason forwarded as the cause of the alleged structural

damage and degradation of the Complex,145 can be induced not only from drawing out of water

from an aquifer, but also from activities involving large volume extraction of other underground


137
Request for Interpretation (Temple of Preah Vihear, Provisional Measures), ¶46-47.
138
Compromis, ¶26; Statute of the I.C.J., 59 STAT 1055 (1945), Article 41; Request for
Interpretation (Temple of Preah Vihear, Provisional Measures), ¶53, 57.
139
Compromis, ¶30.
140
W.H.C., Article 13; W.H.C. Operational Guidelines, ¶177-191, 236.
141
Pulp Mills on the River Uruguay (Argentina v Uruguay), Judgment, I.C.J. Rep. 14 (2010), ¶62.
142
Julio Barboza, Sixth Report on International Liability for Injurious Consequences Arising out
of Acts Not Prohibited by International Law, 2 UNYBILC 83 (1990), 83, 88-89, 105.
143
Ibid., 11.
144
Compromis, ¶30.
145
Compromis, ¶25, 30.

20
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

resources such as hydrocarbons.146 Atania persistently extracts hydrocarbons from the ground as

its major resource constituting 75% of its GDP.147 It also continues to use groundwater near the

Complex and other areas for farming, as it is also a major exporter of grains.148 These are

simultaneous or different causes that cannot be disregarded which may have accumulated149 in

harming the Complex.

2. Rahad did not take any deliberate measure that would directly or
indirectly damage the Complex.

A measure is considered deliberate if there is intent to purposefully destroy a specific

cultural heritage.150 An example of this measure is the planned systematic attack on the Bamiyan

Buddhas in Afghanistan as an act of defiance against the UN and international community.151

Rahad’s Pipeline Operations, however, was not intended to destroy the Complex but was

implemented to sustain its people by providing life-giving water.152

C. IN ANY EVENT, THE RESULTING DAMAGE TO THE COMPLEX IS JUSTIFIED BY


PRESERVATION OF HUMAN LIVES.

The State is not conceived as an end in itself, but rather as a means to regulate and improve

the living conditions of the societas gentium, keeping in mind the basic principle of humanity,


146
Robert Morton, An Overview of Coastal Land Loss: With Emphasis on the Southern United
States, USGS Open File Report 03-337.
147
Compromis, ¶2.
148
Compromis, ¶2, 11, 27.
149
Barboza, supra note 142, 11.
150
Francesco Francioni and Federico Lenzerini, The Destruction of the Buddhas of Bamiyan and
International Law, EJIL Vol. 14, no.4 (2003), 619-651; Patty Gerstenblith, Destruction of
Cultural Heritage: A Crime Against Property or a Crime Against People?, 15 J. Marshall
Rev. Intell. Prop. L 336 (2016), 370-372.
151
Francioni and Lenzerini, supra note 150, 619-651.
152
Compromis, ¶20, 22.

21
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

amongst other fundamental principles of the law of nations, so as to achieve common good.153

Here, Rahad is only doing its duty to protect the human lives and prevent the displacement of its

population when it started the Pipeline Operations.154

III. RAHAD HAS NO OBLIGATION TO RETURN THE RUBY SIPAR.

Sequestering cultural property in their source nations diminishes the opportunity to relate

to fellow human beings.155 Assigning an owner, with a right to exclude, constrains the natural and

free flow of culture,156 making culture an “end product rather than a generative and dynamic

element of human experience.”157

Rahad submits that [A] it has no obligation under conventional or customary international

law to repatriate the Ruby Sipar, and [B] Rahad has a better title to possess it.

A. THERE IS NO OBLIGATION UNDER CONVENTIONAL OR CUSTOMARY


INTERNATIONAL LAW FOR RAHAD TO REPATRIATE THE RUBY SIPAR TO ATANIA.

1. As a mere signatory to the 1970 UNESCO Convention on the Means of


Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property (“1970 UNESCO Convention”),
Rahad is not obligated to repatriate the Ruby Sipar to Atania.


153
Separate Opinion of Judge Trindade in Request for Interpretation (Temple of Preah Vihear,
Provisional Measures), ¶102, 114.
154
Compromis, ¶20.
155
KWAME ANTHONY APPIAH, COSMOPOLITANISM (2006), 130-35.
156
MICHAEL BROWN, WHO OWNS NATIVE CULTURE? (2004); LAWRENCE LESSIG,
FREE CULTURE: HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK
DOWN CULTURE AND CONTROL CREATIVITY (2004), xiii–xvi.
157
Naomi Mezey, The Paradoxes of Cultural Property, 107 Colum. L. Rev. 2015-2018 (2007).

22
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

States which have not signed and ratified a particular treaty are not bound by its terms.158

Signatories, pending ratification, merely have a negative obligation not to perform acts which

would render them incapable of performing the substantive obligations under the Convention.159

The primary obligation under the 1970 UNESCO Convention is to ensure that cultural

property remains within the territory of the source nation.160 Because of the state-centric161 and

retentive character162 of the Convention, illicit transport of cultural property gives rise to the

obligation to repatriate.163 However, this obligation only applies when both the source and market

nations are parties to the Convention.164


158
MALCOLM SHAW, INTERNATIONAL LAW (2008); North Sea Continental Shelf Cases
(Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands)
I.C.J. Rep. 29 (1969) [hereinafter “North Sea Continental Shelf Cases"].
159
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969), Article 18 [hereinafter
“V.C.L.T.”]; ANTHONY AUST, MODERN TREATY LAW AND PRACTICE (2007), 115;
DUNCAN B. HOLLIS, THE OXFORD GUIDE TO TREATIES (2012), 216; ENZO
CANNIZZARO and MAHNOUSH H. ARSAJANI, THE LAW OF TREATIES BEYOND
THE VIENNA CONVENTION (2011), 91.
160
James Riding, Repatriation Symposium: Introduction: Human Rights and the American Indian
Movement: A Manifesto, 44 Ariz. St. L.J. 613 (2012); John Henry Merryman, Two Ways
of Thinking About Cultural Property, 80 AJIL 4:831-53 (1986); 1970 UNESCO
Convention, Article 7.
161
Alexander A. Bauer et al., When Theory, Practice and Policy Collide, or Why Do
Archaeologists Support Cultural Property Claims?, in Y. HAMILAKIS & P. DUKE (eds.),
ARCHAEOLOGY AND CAPITALISM: FROM ETHICS TO POLITICS (2007), 45, 52.
162
Roger Mastalir, A Proposal for Protecting the ‘Cultural’ and ‘Property’ Aspects of Cultural
Property Under International Law, 16 Fordham Int’l L.J. 1033 (1993).
163
Ana Sljivic, Why Do You Think It's Yours? An Exposition of the Jurisprudence Underlying the
Debate between Cultural Nationalism and Cultural Internationalism, 31 Geo. Wash. J.
Int'l L. & Econ. 393 (1998), 401-02; Madeline Chimento, Lost Artifacts of the Incas:
Cultural Property and the Repatriation Movement, 54 Loy. L. Rev. 209 (2008).
164
Lyndel Prott, Strengths and Weaknesses of the 1970 Convention: An Evaluation 40 Years After
Its Adoption, Background Paper, UNESCO (May 2012); see also 1970 UNESCO
Convention Information Kit, CLT – 2014/WS/7/REV – May 2015.

23
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Retaining possession of the Ruby Sipar, pending ratification165, does not violate Rahad’s

obligation as a signatory. To demand Rahad to repatriate the Ruby Sipar is to impose upon it a

positive obligation to which Rahad has yet to consent.

2. There is no customary international law obligation to repatriate


cultural property.

a. There is no relevant and consistent state practice to show that


repatriation of cultural property is customary international law.

Specially affected States must actively and consistently adhere to the practice in order for

a practice to ripen into custom.166 There is no such relevant, consistent or uniform state practice

on repatriation. Although there have been many documented cases of repatriation,167 major market

nations continue to reject repatriation requests from source States168, most notably the decades-

long repatriation dispute over the Elgin Marbles.169

b. There is no opinio juris supporting general state practice.


165
Compromis, ¶59.
166
JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW
24-28 (2012); BIRAN LEPARD, CUSTOMARY INTERNATIONAL LAW: A NEW
THEORY WITH PRACTICAL APPLICATIONS 23 (2010); North Sea Continental Shelf
Cases, ¶66, 74; Anglo-Norwegian Fisheries Case (United Kingdom v Norway), Order,
I.C.J. 117 (1951).
167
DEVON ABBOTT MIHESUAH, REPATRIATION READER: WHO OWNS AMERICAN
INDIAN REMAINS? 240 (2000); DUNCAN CHAPPELL, CRIME IN THE ART AND
ANTIQUITIES WORLD: ILLEGAL TRAFFICKING IN CULTURAL PROPERTY 11
(2011).
168
Nate Mealy, Mediation's Potential Role in International Cultural Property Disputes, 26 Ohio
St. J. on Disp. Resol. 169 (2011); Jason M. Taylor, The Rape and Return of China's
Cultural Property: How Can Bilateral Agreements Stem the Bleeding of China's Cultural
Heritage in a Flawed System?, 3 Loy. U. Chi. Int'l L. Rev. 233 (2006).
169
See generally JOHN HENRY MERRYMAN, THINKING ABOUT THE ELGIN MARBLES:
CRITICAL ESSAYS ON CULTURAL PROPERTY, ART AND LAW (2009); WILLIAM
HAZLITT, ON THE ELGIN MARBLES (2008).

24
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Practice by itself is insufficient to establish a customary rule. The practice must be

performed by States under a sense of a legal obligation.170 Many cases of repatriation have been

made out of ethical or even political considerations, not necessarily out of the belief that there

exists a legal obligation compelling States to repatriate cultural property.171

B. RAHAD HAS A BETTER TITLE TO POSSESS THE RUBY SIPAR.

There is an international interest in the preservation of cultural property which

circumscribes even the source State’s interest in disposing of its own property.172 Although the

source nation usually bears the cost of the preservation, it is, however, made for the “general

happiness of mankind.”173

States may have sovereign authority over property within their territory,174 but when it is

against the general interest of the international community, the property must be protected even

against the wishes of the territorial state.175


170
SHAW, supra note 158, 53-54; ANTHONY AUST, HANDBOOK OF INTERNATIONAL LAW
(2010), 6-7.
171
Kimberly L. Alderman, Ethical Issues in Cultural Property Law Pertaining to Indigenous
Peoples, 45 Idaho L. Rev. 515 (2009), Lyndel V. Prott, The International Movement of
Cultural Objects (2005); John Alan Cohan, An Examination of Archaeological Ethics and
the Repatriation Movement Respecting Cultural Property (Part Two), 28 Environs Envtl.
L. & Pol'y J. 1 (2004).
172
See UNESCO Declaration Concerning the Intentional Destruction of Cultural Heritage,
UNESCO Doc. 32C/25 (July 17, 2003).
173
See U.N. Comm. On Econ., Soc. & Cultural Rights, General Comment 21: Right of Everyone
to Take Part in Cultural Life, U.N. Doc. E/C.12/GC21 (Dec. 21, 2009), ¶42; Amadou-
Mahtar M’Bow, A Plea for the Return of an Irreplaceable Cultural Heritage to Those Who
Created It, 31 Museum 58 (1979).
174
Rosalyn Higgins, The Taking of Property by the State: Recent Developments in International
Law, 176 Recueil Des Cours 259, 280 (1982); Paul M. Bator, An Essay on the International
Trade in Art, 34 Stan L. Rev. 275, 368 (1982).
175
Francesco Francioni, Beyond State Sovereignty: The Protection of Cultural Heritage as a
Shared Interest of Humanity, 25 Mich. J. Int’l L. 1220 (2004).

25
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Rahad therefore submits that it has a better title to retain the Ruby Sipar [1] because Atania

forfeited its rights by declaring the Ruby Sipar a symbol of sedition, and [2] as the new home of

the Kin.

1. Atania forfeited its right to possess the Ruby Sipar by declaring it a


seditious symbol.

The State’s monopoly of authority over cultural property has been afforded by international

law for the State to invoke rights on behalf of its nationals.176 Necessarily, when the State no longer

acts for the benefit of its nationals, such authority is deemed forfeited.

Branding the Ruby Sipar as a symbol of sedition, banning it and placing it in storage177,

are acts which are contrary to the right of its nationals to enjoy their cultural property, and are

contrary to cultural property norms. Rahad, as a State willing and able to give the Ruby Sipar the

“respect and veneration it deserves”178 has a better right to possess it.

2. Rahad has a better title to possess the Ruby Sipar as the new home of
the Kin.

The retention of cultural property within national borders is done to acknowledge the

special bond between the property and the people within the territory179 - those who have owned

them and those who spend their lives pouring over such objects to teach younger generations.180


176
Joseph Fishman, Locating the International Interest in Intranational Cultural Property
Disputes, Yale Journal of Law, Vol. 35, Issue 2, 6 (2010).
177
Compromis, ¶43-44, 52.
178
Compromis, ¶52.
179
Jane Warring, The Fundamental Differences of Opinion to Thwart UNESCO’S Progress in
Fighting the Illicit Trade in Cultural Property, 19 Emory Int’l L. Rev. 227 (2005); John
Henry Merryman, The Public Interest in Cultural Property, 77 Calif. L. Rev. 339 (1989).
180
Fishman, supra note 176.

26
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

The Ruby Sipar, more than being archaeologically important, is significant because of what

it symbolizes: the collective narrative of the seventeen Atan clans.181 Its sanctity is even more

pronounced to the Kin, where Teppa originated, and where the Sisters of the Sun belong.182

Rahad, as the new home of the Kins183 has a better right to possess the Ruby Sipar.

IV. ATANIA MUST COMPENSATE RAHAD FOR ALL DIRECT AND INDIRECT
EXPENSES INCURRED AND ACCRUING AS A RESULT OF ACCEPTING
MEMBERS OF CLAN KIN FLEEING FROM ATANIA.

As a form of reparation184 compensation requires the commission of an internationally

wrongful act of the State to which it is owed.185 The violation by a State of one’s life, freedom or

security, thereby causing its own citizens to become refugees is an internationally wrongful act.186

It likewise violates customary international legal principles.187

Rahad submits that [A] pursuant to the general rule of state responsibility, Atania must

compensate Rahad for the internationally wrongful act of causing the Clan Kin (“Kin”) to become

refugees and that [B] the law on international liability requires Atania to compensate Rahad for

the injurious consequences and damages it suffered due to the Kin migration.

A. ATANIA COMMITTED THE INTERNATIONALLY WRONGFUL ACT OF CAUSING THE


MEMBERS OF KIN TO BECOME REFUGEES.


181
Compromis, ¶7.
182
Compromis, ¶8-9.
183
Compromis, ¶49.
184
ARSIWA, Article 34.
185
ARSIWA with Commentaries, 95.
186
International Law Association, Declaration of Principles of International Law on
Compensation to Refugees, Principle 2 (1992).
187
Eric Rosand, The Right to Compensation in Bosnia: An Unfulfilled Promise and a Challenge
to International Law, 33 Cornell Int’l L.J. 113 (2000).

27
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

The 1951 Convention defines a refugee as one who “owing to well-founded fear of

persecution for reasons of race, religion, nationality, membership of a particular social group or

political opinion, is outside the country of his nationality and is unable or, owing to such fear, is

unwilling to avail himself of the protection of that country”.188

1. Those who fled from Atania for fear of arrest qualify as refugees under
the Refugee Convention.

To become refugees under the Convention, the two principal definitional prerequisites of

[a] well-founded fear of persecution and [b] causation based on membership must be present.189

a. Serious violation of the basic human rights to food and water and
self-determination of the Clan Kin amounted to persecution.

Persecution connotes injurious or oppressive action190 that rises above the level of a mere

punishment191 and manifests failure of State protection.192 A threat to life, freedom or other serious

violation of human rights, including right to self-determination,193 on account of status or

membership in a particular group constitutes persecution.194


188
1951 Convention Relating to the Status of Refugees, 189 U.N.T.S. 137 (1951), Article 1(A)(2).
189
Jessica Cooper, Environmental Refugees: Meeting the Requirements of the Refugee Definition,
6 N.Y.U. Envtl. L.J. 480 (1998).
190
Ibid., 8.
191
UNCHR, UNCHR Compilation of Case Law on Refugee Protection In International Law
(2008), 4, available at http://www.refworld.org/docid/47dfc8e32.html, accessed 24
November 2016.
192
R. Haines, Gender-related Persecution, in E. Feller, V. Turk, and F. Nicholson (ed.), Refugee
Persecution in International Law (2003), 329-30.
193
International Association of Refugee Law Judges: Seminar for New Refugee Law Judges,
Geneva, (1999), Chapter 4, p.13.
194
U.N. High Commissioner for Refugees, Handbook and Guidelines on Procedures and Criteria
for Determining Refugee Status: Under the 1951 Convention and the 1967 Protocol
relating to the Status of Refugees (2011), ¶51 [hereinafter “UNHCR Handbook”].

28
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Through 2012 Water Resource Allocation Program (WRAP) Act (“Act”), Atania violated

the Kin’s non-derogable195 right to sufficient and safe access to water196 when it cut off water to

the majority of their farmlands197 upon failure to comply with the water quota and licensing.198

Further, the Kin’s right to self-determination199 has also been violated as they have been “denied

the right to enjoy their own culture” through traditional farming.200

b. The fear of persecution is well-founded.

The element of a well-founded fear of persecution is clearly the most important factor

concerning the determination of refugee status.201 This element, judicially interpreted to mean

reasonable possibility, 202 is governed by the application of the ‘bipartite test’203 that inquires into

the frame of mind not only of the person concerned, but also of the existence of objective facts.204


195
G.C. 15, ¶37(a).
196
Id.
197
Compromis, ¶38.
198
Compromis, ¶40.
199
Peter Manus, Sovereignty, Self-Determination and Environment-Based Cultures: The
Emerging Voice of Indigenous Peoples in International Law, 23 Wis. Int’l L.J. 553 (2005).
200
Compromis, ¶40.
201
PAUL WEIS, THE REFUGEE CONVENTION, 1951: THE TRAVAUX PREPARATOIRES
ANALYSED WITH A COMMENTARY (1995), 7.
202
I.N.S. v Cardoza-Fonseca, 467 US 407 (1987); R v Secretary of State for the Home
Department, 1 AII E.R. 193 (1988).
203
G.S. Goodwin-Gill, The Principles of International Refugee Law, in S. JELEFF (ed.),
ASYLUM (1995), 24; Flavia Zorzi Giustiniani, The Obligations of the State of Origin of
Refugees: An Appraisal of a Traditionally Neglected Issue, 30 CJIL 171 (2015).
204
GRAHL-MADSEN, THE STATUS OF REFUGEES IN INTERNATIONAL LAW (1966), 173.

29
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Here, the Kin have reasonable grounds205 to flee for fear of persecution as exemplified by

the imprisonment of two Kin farmers pursuant to the Act. 206 Such persecution amounts to a

sustained, persistent and systematic violation of a fundamental human right.207

c. The unlawful discrimination of the Kin by reason of their


membership in a particular group amounted to persecution.

An unjustified discrimination on the ground of membership of a particular social group

may constitute persecution in international law.208 Here, the high threshold in licensing exemptions

systematically and particularly disadvantaged209 the Kin from the other profit-generating farms.

The right of the Kin to livelihood, as subsistence farmers,210 was substantially prejudiced.211

2. Those who fled from Atania because of starvation are refugees within
the definition of the Refugee Convention applying the evolutive and
teleological means of treaty interpretation.

Traditional refugees and water and food refugees are similarly situated using a results-

based perspective.212 Like traditional refugees, they are forced to migrate due to a stark inability

to respond to acute crises and are equally characterized as powerless and vulnerable.213 It would


205
Elizabeth Adjin-Tettey, Reconsidering the Criteria for Assessing Well-Founded Fear in
Refugee Law, 25 Man. L.J. 127 (1997).
206
Compromis, ¶37.
207
ANDREAS ZIMMERMANN, ET AL., THE 1951 CONVENTION RELATING TO THE
STATUS OF REFUGEES AND ITS 1967 PROTOCOL: A COMMENTARY (2011).
208
See also JEAN-YVES CARLIER, EUROPE ET LES RÉFUGIÉS (1997).
209
MAIKE GORSBOTH AND ESTER WOLF, IDENTIFYING AND ADDRESSING
VIOLATIONS OF THE HUMAN RIGHT TO WATER: APPLYING THE HUMAN RIGHTS
APPROACH (2008).
210
Compromis, ¶11.
211
UNHCR Handbook, ¶17.
212
Tracey King, Environmental Displacement: Coordinating Efforts to Find Solutions, 18 Geo.
Int'l Envtl. L. Rev. (2006), 557.
213
Joan Fitzpatrick, Revitalizing the 1951 Refugee Convention, 9 Harvard Human Rights Journal

30
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

be unreasonable and absurd214 to afford varying protections to refugees by mere boundaries or by

the nature of the cause of displacement.

a. Expansion of the core definition is consistent with the Refugee


Convention’s nature as an international protection regime.

A convention must be interpreted and implemented in light of its broader purpose, even

when this conflicts with the literal construction of the text.215 The teleological analysis takes

account of the travaux preparatoires216 and the preamble,217 but always with due regard to the

overarching duty to ensure effectiveness.218

Here, what guided the drafters’ thinking was not per se the object and manner of

persecution,219 but the overwhelming need to provide surrogate international protection to those

who have irreparably lost protection in their country of origin.220 This is supported by the preamble


(1996), 233.
214
V.C.L.T., Article 32.
215
SHAW, supra note 158, 839; GEORGE NOLTE (ED.), TREATIES AND SUBSEQUENT
PRACTICE (2013), 5, 8; Daniel Steinbock, Interpreting the Refugee Definition, 45 UCLA
Law Review (1998), 733.
216
JAMES C. HATHAWAY, THE RIGHTS OF REFUGEES UNDER INTERNATIONAL LAW
(2005), 56.
217
IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES (1984), 130.
218
Maarten Bos, Theory and Practice of Treaty Interpretation, 23 Netherlands International Law
Review (1980), 3, 150.
219
ATLE ARAHL-AADSEN, THE STATUS OF REFUGEES IN INTERNATIONAL LAW (1966),
97; Heather Alexander and Jonathan Simon, “Unable to Return” in the 1951 Refugee
Convention: Stateless Refugees and Climate Change, 26 Florida Journal of International
Law 3, (2014), 531-574.
220
Antonio Fortin, The Meaning of ‘Protection’ in the Refugee Definition, 12 International
Refugee Law Journal (2000), 548; UNHCR, The International Protection of Refugees:
Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees (2001).

31
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

of the Refugee Convention which expressly echoes the protection of “fundamental rights and

freedoms” in the context of refugeehood.221

b. The Refugee Convention is a living instrument to be interpreted in


the light of present conditions.

A treaty’s object and purpose cannot be reasonably forever locked in time.222 The Refugee

Convention is a living instrument223 which must be interpreted in the light of present conditions

so as to respond to new needs of protection of human beings.224 The 1967 Protocol itself evinces

the evolving nature of the Refugee Convention when it removed the geographical and temporal

limitations under the Convention225 to cover those who became refugees as the result of “new

refugee situations (that) have risen since the (1951) Convention was adopted.”226

B. ATANIA COULD BE HELD LIABLE FOR COMPENSATION UNDER OTHER


LIABILITY REGIMES IN INTERNATIONAL LAW.
International liability, contrary to state responsibility, exists regardless of unlawfulness or

prohibition by international law.227

1. The complementary protection extended by Rahad to the Kin Migrants


compels Atania to compensate Rahad.


221
JULIAN WEIS (ED.), THE REFUGEE CONVENTION (1995), 16.
222
HATHAWAY, supra note 216, 56; Dispute Regarding Navigational and Related Rights
(Costa Rica v Nicaragua) I.C.J. Rep. (2009), 214, ¶66.
223
Tyler v The United Kingdom, ECtHR, App No. 5856/72 (1978), ¶31.
224
RICHARD GARDINER, TREATY INTERPRETATION (2015), 467.
225
See Introductory Note by the Office of The United Nations High Commissioner for Refugees,
Convention and Protocol Relating to The Status of Refugees (August 2007), available at
http://www.unhcr.org/3b66c2aa10.html, last accessed 24 November 2016.
226
1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267 (4 October 1967),
Preamble, ¶3, 4.
227
Sompong Sucharitkul, State Responsibility and International Liability Under International
Law, 18 Loyola of Los Angeles Int’l & Comp. L.J. 821 (1996).

32
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

The principle of complementary protection is intended to fill the gap of protection in the

Refugee Convention framework.228 Thus, refugeehood is also afforded to a person whose life,

liberty or security is threatened by serious public disorder or massive violations of human rights

in the country of origin.229 Here, the Kins were forced to migrate to “escape hardship and

persecution in their homeland”230 brought by the theft of their water, food and way of life.231

2. The principle of sic utere tuo ut alienum non laedas compels Atania to
compensate Rahad.
Abuse of rights refers to the exercise of a State’s rights to the prejudice of other States.232

The State is liable for the harmful effects of activities under its control irrespective of whether

international law permits or prohibits the activities in question.233 The creation of refugee flows

also amounts to abuse of rights of the source State.234

3. Atania may be held liable under the general principle of quasi-contract.

A country of asylum is burdened by the need to ensure the survival, settlement and

assimilation of refugees.235 Appropriately, a quasi-contractual relationship exists between State of


228
Liv Feijen, Filling the Gaps? Subsidiary Protection and Non-EU Harmonized Protection
Status(es) in the Nordic Countries, 26 International Journal of Refugee Law 173 (2014).
229
Ruma Mandal, Protection Mechanisms Outside of the 1951 Convention (“Complementary
Protection”), Legal and Protection Policy Research Series, UNCHR for Refugees,
PPLA/2005/02 (2005), xii.
230
Compromis, ¶48.
231
Compromis, ¶41.
232
See Barcelona Traction, Light and Power Co, Ltd (New Application: 1962) (Belgium v Spain),
I.C.J. 3 (1970).
233
Report of the International Law Commission on the Work of its Thirty-Seventh Session, U.N.
Doc. A/40/10 (1985), 19-27.
234
H. LAUTERPACHT, FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY
(1933), 300-01.
235
Luke T. Lee, The Right to Compensation: Refugees and the Countries of Asylum, 80 A.J.I.L.
532 (1986).

33
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

236
Origin and the country of asylum in order to alleviate the burden imposed by such influx of

refugees to receiving States.

C. COMPENSATION IS THE APPROPRIATE MEANS OF SATISFYING RESPONSIBILITY.


The State responsible for an internationally wrongful act is under an obligation to

compensate for the damage caused, insofar as such damage is not made good by restitution.237

1. Restitution is not adequate and practicable under the circumstances.


Restitution consists in reestablishing the status quo ante.238 Restitution, despite its primacy

as a matter of legal principle, is frequently unavailable or inadequate.239 Here, restitution is

inadequate in addressing the costs240 incurred by Rahad as a result of the internationally wrongful

act.241 Further, restoration of the status quo ante would be impracticable as this would entail the

return of the Kin migrants to Atania whose systematic oppression of the Kin has been engraved in

its legal, political and socio-cultural domains.

2. Rahad after electing the form of reparation has given notice of its claim
for compensation.
An injured State which invokes the responsibility of another State shall give notice of its

claim to that State,242 specifying in particular what form reparation should take.243 Here, the Rahadi


236
Arthur Corbin, Quasi Contractual Obligation, 21 Yale L.J. 533 (1912).
237
ARSIWA, Article 36(1); Factory at Chorzow, Jurisdiction, Judgment No. 8, P.C.I.J. Series A,
No. 9 (1927).
238
DAVID CARON, ET AL., PRACTISING VIRTUE: INSIDE INTERNATIONAL
ARBITRATION (2015), 637.
239
HELMUT PHILIPP AUST, COMPLICITY AND THE LAW OF STATE RESPONSIBILITY
(2011), 278.
240
Compromis, ¶57.
241
ARSIWA, Article 36.
242
ARSIWA, Article 43(1).
243
CRAWFORD (2014), supra note 78, 511-512.

34
WRITTEN SUBMISSIONS IN BEHALF OF RAHAD

Ambassador itemized its expenditures in the net amount of US$945,000,000 and demanded from

Atania that amount as well as for expenses continuing to accrue.244

PRAYER

Atania respectfully requests the Court to adjudge and declare that:

1. Rahad’s extraction of water from the Aquifer does not violate Rahad’s international

legal obligations governing the proper use of shared resources; 


2. Rahad’s Savali Pipeline operations do not violate any legal obligations relating to the

Kin Canyon Complex; 


3. Rahad is entitled to retain possession of the Ruby Sipar; and 


4. Atania must compensate Rahad for all direct and indirect expenses incurred and

accruing as a result of accepting members of Clan Kin fleeing from Atania. 


Respectfully submitted,

AGENTS FOR THE RESPONDENT.


244
Compromis, ¶57.

35