You are on page 1of 10

MEMORIAL FOR THE APPLICANT

-Summary of Pleadings-

I. The Federal States of Ravar failed to fulfill its obligations under the Khu’tan Mountain Range
Treaty and the 1979 Stockholm Declaration when it failed to ensure the protection of the
environment through exercise of due diligence in regulating the conduct of individuals and
companies within its jurisdiction. It likewise failed to perform its obligations in preventing the
spread of the pollution into the borders of neighboring states through prompt release of
information and consultation with the affected states.

II.The Federal States of Ravarcontravened international law for its it failure to perform its
obligation under the ICCPR when it detained the Vinthis without appropriate evaluation of their
claims and determination of the appropriate status that should be accorded to them.

III. The Federal States of Ravar violated international law in its treatment of the Vinthi Detainees.
Ravar’s failure to carry health checks on the Vinthi migrants upon their entry results to injurious
effects not only to the Vinthis but also to its own citizens. The Vinthis’ demand for an access to
medical service is grounded and Ravar should have not utterly dismissed the same. Ravar, as
developed country, failed to perform progressively and to the maximum of its available resources
the obligation mandated by ICESCR in addressing merely the Vinthi people situation upon the
outbreak of the infection.

IV. The Federal States of Ravar violated international law in its proposal to transfer the Vinthi
people to the Kingdom of Zoivel. Ravar’s disregard of the existing health status of the Vinthis in
proposing to transfer them to Zoivel exposes the Vinthis to the real risk of irreparable harm that
might cause their death considering that Zoivel has a dubious track record on human rights.
The existence of the head office of the only World Health Organization Center for Disease
Control in Zoivel does not warrant the proposed transfer of the Vinthis. Rather than entering into
an agreement with Zoivel, Ravar, specially being a member of the United Nations must have
related directly the matter to WHO-CDC, an organ of the United Nations with specific functions,
in order to best ensure that the Vinthis, without exposing them to the real risk of irreparable harm,
will be accorded with proper attention in relation to their health. This approach could have been
more cautious and faithful to their obligation to “respect” and “ensure” the Vinthis’ rights rather
than placing their reliance to the unilateral and binding declarations or promises in prosecuting
violations of human rights of the Queen of a country with a dubious track record on human rights.
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-

I. RAVAR’S FAILURE TO ENSURE THE PROTECTION OF THE ENVIRONMENT


WITH RESPECT TO THE CONDUCT OF THE MINING PROJECT
CONSTITUTES A VIOLATION OF INTERNATIONAL LAW

Article 10 of the Khu’tan Mountain Range Treaty mandates parties to ensure the
protection of the environment by taking into consideration the contracting parties’ national and
environmental legislations in the conduct of mining and mining-related activities. As such, both
parties are under legal obligation to regulate the conduct of mining and mining-related activities
within its areas of jurisdiction and ensure that such operations are consistent with the provisions
of the treaty and their respective international and environmental obligations.

1. Ravar has the legal obligation to oversee operations within its jurisdiction
The provision on the protection of the environment is a reiteration of theStockholm
Declaration1which provides that states have the responsibility to ensure that activities within
their jurisdiction or control do not cause damage to the environment of other states or of areas
beyond the limits of national jurisdiction.As held by the arbitral tribunal in the Trail Smelter
Case,2 states are responsible in international law for the conduct of its citizens and companies
within its jurisdiction and that it is the duty of the Government to see to it that such conduct is in
conformity with its obligation under international law. This has been deduced by the court in
Clyde Eagleton’s Treatise that, “a state owes at all times a duty to protect other states against
injurious acts from individuals within its jurisdiction.”3
The facility used by Tratvia for the storage of the anthracite where he fire broke out is
located in the exclusive jurisdiction of Ravar. Ravar should have exercised the strictest form of
monitoring of such facilities in compliance of its obligation under the treaty and the Stockholm
Declaration. Furthermore, Tratvia is a licensed private entity under Ravarian lawssanctioned by
Ravar to undertake mining activity pursuant to its treaty with Arista.As such, Ravaris responsible
overTratvia’s operation and has the obligation to exercise due diligence in ensuring Tratvia’s
compliance to all of Ravar’s international obligations.

1
Principle 21, 1979 Stockholm Declaration.
2
UNRIAA, Vol. III, p. 1963; IELR, I, 326. Trail Smelter Case 1938–1941, Part Five.
3
Ibid. p. 1963.
2
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
2. Tratvia Enterprises’failure to carry out the terms of the mining project safely
constitutes an internationally wrongful actattributable to Ravar and gives rise to
Ravar’s liability

The basic requirements to trigger liability are the occurrence of damage and alink of
causality between such damage and a lawful activity entailing risk carriedout under the
jurisdiction or control of a State.4
From the facts, the facility in Mt. Lufor was a storage facility formerly used for storage of
gas and fuel which was converted by into open house storage facility for temporary storage of
anthracite (C.13). The use of the facility assumes a lot of risks and by itself is considered as
hazardous. As such, it should have been subjected to regular monitoring and standard tests to
prevent possible harms. Ravar failed to religiously monitor this operation and failed to see the
flaw in the use of an open house storage facility formerly for gas and fuel, to store a combustible
coal, on top of a 19,981 feet tall mountain, an elevation which exposes the facility to direct heat
during a summer season.

1. Ravar failed to take appropriate actions to prevent transboundary harm


The 1979 Convention on Long-range Transboundary Air Pollution mandates the parties
todevelop, without undue delay, policies and strategies which shall serve as a means of
combating the discharge of air pollutants, taking into account efforts already made at the national
and international levels.5 Under the same convention, parties are expected to exchange
information on and review their policies, scientific activities and technical measures aimed at
combating, as far as possible, the discharge of air pollutants which may have an adverse effect,
in order to reduce air pollution, including long-range transboundary air pollution.6 Also part of
this obligation is to conduct consultations between parties to mitigate the transboundary effects
of pollution.
These obligations put Ravar, being the state in charge, in a position where it is expected
to be responsible in preventing the spread of the pollution into the borders of neighboring states.
In the instant case, Ravar failed to perform these obligations evidenced by its inaction from the
period of the occurrence of the fire in mid-April of 2011 until the descent of the Vinthis a few

4
Requirements to establish liability, p. 18, The Environment, Risk and Liability in International Law,
Barboza, 2010.
5
1979 Convention on Long-range Transboundary Air Pollution, Article 3
6
Id. Article 4.

3
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
months after that. For its case, Arista and its nationals including the Vinthis had to suffer all the
consequences arising from the accident without adequate information and preparation.

II. RAVAR CONTRAVENED INTERNATIONAL LAW IN ITS FAILURE TO


PROCESS THE VINTHI MIGRANTS AND TO GRANT THEM A STATUS
CONSISTENT WITH INTERNATIONAL LAW

The International Covenant on Civil and Political Rights (“ICCPR”)in accordance with
principles of international law provides for the recognition of the inherent dignity and of the
equal and inalienable rights of all members of the human family as the foundation of freedom,
justice and peace in the world. As such,parties to the covenant are enjoined to ensure that all
individuals within its territory and subject to its jurisdiction are accorded with rights consistent
with those provided by the covenantand under the international law.7Ravar failed to perform this
obligation when it detained the Vinthis without appropriate evaluation of their claims and
determination of the appropriate status that should be accorded to them.
Further, the ICCPR provides that any detention or deprivation of liberty must be in
accordance with and authorized by law.8 Although national legislation is the primary
consideration for determining the lawfulness of detention, it is “not always the decisive element
in assessing the justification of deprivation of liberty.”9 In particular, a specific factor that needs
to be considered is the underlying purpose of preventing persons being deprived of their liberty
arbitrarily.10
Relating these to the facts, from the moment Vinthis were intercepted crossing the
borders of Ravar (Compromis [C].16),and until the point of their proposed transfer to Zoivel
(C.19), the Vinthis have been subjected to indefinite detention which is an arbitrary one for not
having defined limits established by law.11 It is worthy to note from the facts that the Vinthis
arrived at Ravar a few months after the fire in mid-April of 2011, yet Ravar only took steps into
processing the Vinthis after a severe bronchial infection spread throughout the refugee center in
early 2012 (C.17)or almost a year after they were intercepted in the Ravarian borders.

7
See: Article 2 (1) of the ICCPR.
8
Article 9(1) of the ICCPR: “No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.”
9
Detention Guidelines, Guideline 3 par. 16, citing Lokpo and Touré v. Hungary, (2011), ECtHR, App.
No. 10816/10, par. 21 (final decision).
10
Ibid. The ECtHR stated: “It must in addition be satisfied that detention during the period under
consideration was compatible with the purpose of the relevant provision, which is to prevent persons from
being deprived of their liberty in an arbitrary fashion.”
11
Id. par. 15.
4
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
Assuming arguendo that the Vinthis were indeed illegal migrants, the Ravarian
government failed to make definitive steps towards processing the Vinthis for their return to
Arista. It must also be emphasized that Vinthis crossed the borders of Ravar, not out of discretion
but out of survival instinct since staying in Mt. Pamfall poses danger to their lives arising from
the pollution which originated in Mt. Lufor. This should have prompted the Ravar, pursuant to its
obligation under the ICCPR and International Convention on Economic, Social and Cultural
Rights (“ICESCR”) to process the Vinthis individually to assess their respective reasons for
crossing the border. This could have possibly helped the Ravar as well in determining proper
status to be accorded to the migrants and the rights and treatment they deserve.

III. THE FEDERAL STATES OF RAVAR VIOLATED INTERNATIONAL LAW IN ITS


TREATMENT OF THE VINTHI DETAINEES.

1. Ravar, as signatory to ICESR, must undertake steps necessary for the full
realization of the Vinthis’ rights.

Article 2 (1) ICESR12 imposes the obligations of all parties to the Covenantto take steps
in the full realization of rights. Article 11 (2) of the present Covenant recognizes the fundamental
right of everyone to be free from hunger. This is under the aegis of the recognizing the right of
everyone to an adequate food, clothing and housing, and to the continuous improvement of living
conditions. Article 12 (1) further “recognize the right of everyone to the enjoyment of the highest
attainable standard of physical and mental health.” Notwithstanding the status of an individual or
group – whether they are refugees, asylum-seekers or illegal migrants – such right must be
recognized and must be properly accorded to since the Covenant hails directly from the
Universal Declaration of Human Rights which mandates that “Everyone has the right to
recognition everywhere as a person before the law.”13
2. Ravar’s failure to carry health checks on the Vinthi migrants upon their entry
results to injurious effects not only to the Vinthis but also to its own citizens.

Ravar, being a State Party of the ICESCR, violated international law in its treatment of
the detained Vinthi people. Under Article 12 (2-C, B), two among the many steps to ensure the

12
“to take steps, individually and through international assistance and co-operation, especially economic
and technical, to the maximum of its available resources, with a view to achieving progressively the full
realization of the rights recognized in the present Covenant by all appropriate means, including
particularly the adoption of legislative measures” (emphasis supplied)
13
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III),
Article 6.
5
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
full realization of the right to the highest standard of attaining physical 14 and mental health is
“the prevention, treatment and control of epidemic, endemic, occupational and other diseases”
and “the improvement of all aspects of environmental and industrial hygiene.”15 The Vinthi
crossed the border to Ravar because “the circumstances became too unbearable for the
inhabitants of Mt. Pamfall” and “[t]he infants were getting sickly and their water became
contaminated” (C. 15). Upon arrival to Ravar, prior to the early 2012 outbreak of severe
bronchial infection, they were exposed already to the adverse effects of the fire that broke out in
the Tratvia facility, especially that the employees of the Tratvian facility (mostly Aristans
including Vinthis who all lived in Mt. Pamfall)16 developed lung problems (C. 14). As such,
Ravar should have carried out health checks upon their entry as soon as possible.17 Having the
Vinthis live in “cramped up living spaces” in the center evidences Ravar’s omission from its
obligation. Ravar could have provided them with better and hygienic environment if it had, at the
onset, carried out these health checks. These obligations are not only pursuant to ensuring the
health of the Vinthis but, foremost, preventing the Ravarian nationals from being exposed to the
adverse effects of the event that had transpired. These omissions, prior to the quarantine, proved
to be injurious not only to the Vinthis but also to the Yumarians. On the one hand, it contributed
to the death of around 77 Vinthis and to the complications suffered by around 50 of them (See:
C. 17). On the other hand, it effected to the suspension of classes and closure of offices arising
from the fear that the Ravarians, specifically those in Yumar, will contract infection from the
Vinthi people (See: C. 19). Therefore, Ravar was not able to ensure the full realization of the
right to the highest standard of attaining physical health as contemplated in Article 12 of the
ICESCR.
3. The Vinthis’ demand for an access to medical service is grounded and Ravar
should have not utterly dismissed the same.

Further, non-performance of Ravar’s obligation under ICESCR can be seen. Article 11


(2) of the ICESCR provides the recognition of the fundamental right of all individuals to be free
from hunger. Further, Article 12 (1) mandates not only the recognition of the right to the full

14
See: UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 14:
The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August
2000, E/C.12/2000/4.
15
See: Id, par. 15.
16
See: C. 2.
17
Detention Guidelines, par. 29.

6
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
realization of the highest standard for physical health but also of mental one. The inadequacy of
food and water and the lack of access to medical services moved the Vinthi leaders to engage
into negotiation with Ravarian immigration officers (See: C. 18). Notwithstanding the fact that
Arista had felt the necessity to send medical personnel to assist in the treatment of the disease18
and the determination of psychologist that the quarantine had a negative impact on the
psychiatric health of the detainees (See: C. 18), both indicative that the complaints of the Vinthis
are grounded, Ravar utterly dismissed such averments (See: C. 18).

4. Ravar, as developed country, failed to perform “progressively” and “to the


maximum of its available resources” the obligation mandated by ICESCR in
addressing merely the Vinthi people situation upon the outbreak of the infection.

Ravar’s obligation must operate under the aegis of its principal obligation under Article 2
(1) of ICESCR. The mandate of“achieving progressively”the full realization of the rights
recognized “imposes an obligation to move as expeditiously and effectively as possible towards
that goal.”19Further, it obligates each State party to take the necessary steps "to the maximum of
its available resources". In order for the State to be able to attribute its failure to meet at least its
minimum core obligations20 to a lack of available resources it must demonstrate that every effort
has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of
priority, those minimum obligations. Ravar is a developed country. From the omissions it had
done in relation to the living condition, adequacy of food and water and lack of access to medical
services, only acting aggressively at the event of the outbreak of the severe bronchial infection, it
clearly failed to perform its obligation under the Article 2 (1) of ICESCR.

IV. THE FEDERAL STATES OF RAVAR VIOLATED INTERNATIONAL LAW IN ITS


PROPOSAL TO TRANSFER THE VINTHI PEOPLE TO THE KINGDOM OF ZOIVEL.

1. Ravar, as a signatory to ICCPR, is bound to respect and ensure the non-


derogable rights to life and against torture and ill-treatment of the Vinthi people.

Article 2 (1) ICCPR states that “[e]ach state Party to the present Covenant undertakes to
respect and ensure to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race, x x x national

18
Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties'
obligations (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991), par. 9.
19
Id.,par. 10.
20
Id.
7
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
or social origin…” (emphasis supplied). Two of the non-derogable21 rights recognized under the
same Convention are stated in Articles 6 (1) and 7. First, Article 6 (1) provides that“[e]very
human being has an inherent right to life” which should be protected by law. Second, Article 7
provides further that “[n]o one shall be subjected to torture or cruel, inhuman or degrading
treatment or punishment.” With the recognition and obligation to the right of all individuals –
whether they are refugees, asylum-seekers or illegal migrants – implies that no act in or leading
to violation of these rights, in any way whatsoever, must be done. Necessarily, it must include an
“obligation not to extradite, deport, expel or otherwise remove a person from their territory,
where there are substantial grounds for believing that there is a real risk of irreparable harm, such
as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal
is to be effected or in any country to which the person may subsequently be removed.”22
Article 3 (1) of the 1984 Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,23 having the status of jus cogens,24 though inapplicable in
the instance case, bolsters this throughproviding that“[n]o State Party shall expel, return
("refouler")25 or extradite a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.” It bears emphasis likewise
that paragraph 2 of the same article recognizes that “consistent pattern of gross, flagrant or mass
violations of human rights” are indicative of substantial grounds for believing that an individual
would be in danger of being subjected to torture.26
2. Ravar’s disregard of the existing health status of the Vinthis in proposing to
transfer them to Zoivel exposes the Vinthis to the real risk of irreparable harm.

From the foregoing, Ravar, being a State Party of the ICCPR, violated international law
in entering into an agreement with Zoivel for the transfer of the Vinthi people. Under Article 4
(1) of the ICCPR, Ravar “may take measures derogating from their obligations under the present

21
See: Article 4 (2), 1966 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, entered
into force 23 March 1976 [hereinafter: “ICCPR”].
22
General Comment 31/80 of 29 March 2004, par.12.
23
The 1984 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1465 U.N.T.S. 85, entered into force 26 June 1987 [hereinafter: “Convention
Against Torture”].
24
See: Human Rights Committee, General Comment No. 29: Article 4: Derogations during a State of
Emergency, U.N. Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 11 as cited in United Nations
High Commission on Human Rights (UNHCR), Advisory Opinion on the Extraterritorial Application of
Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967
Protocol,2007, par. 7.
25
See also: Article 33 (1) of the 1951 Convention relating to the Status of Refugees.
26
Article 3 (2), Convention Against Torture.
8
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
Covenant” in cases of public emergency which threatens life. However, despite the existence of
public emergency, they may not derogate from their obligation under Articles 6 (right to life) and
7 (right against torture and ill-treatment) of the same Covenant.27
50 of the Vinthi people had developed complications arising from the severe bronchial
infection. All others are vulnerable to the same. As such, any ill-treatment, in any manner
whatsoever, even minute ones, will necessarily be contributory to the aggravation of the Vinthis
health condition which might result even to their death.In order for the Ravarian Government to
be really faithful to its obligation under the ICCPR, they must have absolutely assured first that
the State to where the Vinthis might be transferred will not expose the latter to the real risk of
irreparable harm. Zoivel’s dubious track record on human rights post 1985 civil war is enough to
overturn the presumption that Ravar had performed their obligations under Article 2 (1) of the
ICCPR – an obligation “to respect and ensure to all individuals… the rights recognized in the
present Covenant,” especially the non-derogable ones particularly the right to life (Article 6) and
right against torture and ill-treatment (Article 7). It is not necessary to prove that the Vinthis’
transfer to Zoivel will deprive them of their lives. Given the health condition of the Vinthis, mere
exposure to conditions which pose real risks that might cause their death is tantamount to non-
respecting and non-ensuring their non-derogable right to life – an obligation demanded from
them by the Article 2 (1) of the ICCPR. Zoivel’s dubious track record on human rights
constitutes such risk.
3. The existence of the head office of the only World Health Organization Center for
Disease Control in Zoivel does not warrant the proposed transfer of the Vinthis.

The fact that the capital of Zoivel is the head office of the only World Health
Organization Center for Disease Control (WHO-CDC) does not warrant the proposed transfer to
Zoivel. Though Ravar may not enter into treaty with WHO since the former is not a signatory to
the 1986 Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations, and the same is not yet in force, such an
entity, however, is an organ of the United Nations with specific functions. Under Article (2, C
and D) of WHO Constitution, the same has the function “to assist Governments, upon request, in
strengthening health services” (emphasis supplied) and “to furnish appropriate technical
assistance and, in emergencies, necessary aid upon the request or acceptance of Governments.”
The suspension of classes and closure of offices and the lobbying in the House of Representative

27
See: note 20.
9
MEMORIAL FOR THE APPLICANT
-Pleadings and Authorities-
in proposing to ouster and transfer the Vinthis (See: C. 19) is indicative that the Ravarian
government recognizes that the situation as urgent.Thus,rather than entering into an agreement
with Zoivel, Ravar, specially being a member if the United Nations (See: C. 24), must have
related directly the matter to WHO-CDC in order to best ensure that the Vinthis, without
exposing them to the real risk of irreparable harm, will be accorded with proper attention in
relation to their health. This approach could have been more cautious and faithful to their
obligation to “respect” and “ensure” the Vinthis’ rights rather than placing their reliance to the
unilateral and binding declarations or promises28 in prosecuting violations of human rights of the
Queen of a country with a dubious track record on human rights (C. 21).
4. Ravar cannot invoke its domestic laws as justification for its failure to perform its
international obligation.

Ravar’s blatant admission that the way they address the situation of the Vinthi people is
purely domestic matter holds no water since Ravar is not only a signatory to ICCPR but also to
The 1969 Vienna Convention on the Law of Treaties. Article 27 of the latter provides that, “[a]
party may not invoke the provisions of the internal law as justification for its failure to perform
the treaty.”29 Being bound by ICCPR, Ravar is unjustified in failing to perform its duties for the
Vinthi people.
PRAYER FOR RELIEF

For the foregoing reasons, the Applicant respectfully requests this Honourable Court to find,
adjudge and declare that:
I. Ravar’s acts and omissions with respect to the conduct of the mining project
violated international law;
II. Ravar violated international law in failing to process the Vinthi migrants;
III. Ravar violated international law in its treatment of the Vinthi detainees;
IV. Ravar violated international law in entering into agreement with the Kingdom of
Zoivel for the proposed transfer of the Vinthi people.

Respectfully Submitted behalf of the Applicant,

Counsel for the Applicant.

28
See: Nuclear Test Cases: Australia v. France, New Zealand v. France. [1974] ICJ Rep.
29
See also: UN General Assembly, Draft Declaration on Rights and Duties of States, 6 December 1949.

10