Question List Compilation

1. Scope of intervention (It’s actually abstention under the commentary) under

HR?

a) Noninterference with the exercise of cultural practices and with access to cultural goods
and services (Can refer to the Ogiek Case and Kenya’s interference in the Mau Forest)

2. Why isn’t ILO 169 used as the primary argument?

a) Address this underlying concern

3. How does the two regime differs?

a) In a lot of ways, the subject matter (Indigenous people v people in general)

the rights conferred (land rights of indigenous people) objectives of
convention, etc

4. Are you aware of the YLSA report which states that the hunting will lead to
inevitable extinction of the yak? How should the court react?

a) Refer to statistic or clarification no 7 that concludes yak hunting will be

sustainable with AG/2017-300

5. Why doesn’t Respondent submit a counter-claim? (The argument that

Applicant also violates certain obligations)

a) Because the Respondent has too much money to even bother with the
Applicant (Jokingly and in a more diplomatic matter of course)

6. What is appropriation? (The act of appropriating)

a) No exact term exist under international law on what appropriation is,

however in accordance with the Oxford Dictionary appropriate can be
defined as “Take (something) for one's own use, typically without the owner's
permission”. And the court has referred to the Oxford Dictionary before to
define a word in the Oil Platform Case (The word was “commerce”; oil
platform para 45)

7. Reaction to para 39 of the compromis (Yak Protection Act)

a) The yak protection act does not violate the cultural or religious rights of the
applicant. Cultural rights elements must be fulfilled (Accessibility &
Acceptability) and Normal violations of religious rights does not add up

b) The Applicant enacted the Yak Protection Act in response to the declining
yak population due to Respondent’s harvesting. If Respondent did not
 threaten the yak with extinction by their hunting then the Act would not have
been passed. If anything the Yak Protection Act ensures the cultural and
religious right of the Applicant’s people by limiting yak hunting to traditional
purposes only

8. If the DORTA hunters were to convert to the Pivzao religion how would that
affect the argument?

a) Then there would be no problem. The issue which leads to the limitation of
accessibility and availability is the unbalanced hunting conducted by
DORTA. The Yak was able to sustain themselves for years when the
Applicant’s people were hunting them because the culture and religious
practices takes into account the Yak reproduction rate and the migration
cycle. If the Respondent were to take into account of these practices no threat
would be manifested. However realisticall

9. Does this court have the authority to command a state to conduct

compensation?

a) They do, see article 36 (2) of ICJ Statute

10. Is the compensation retroactive or prospective?

a) I would say retroactive based on the wordings of the claims

11. Contradiction between the remedies in Claim III and IV

a) There is no contradiction as the request in Claim IV is for previous sales that

has been realized by Gallvectra, as such even if there Yak hunting were to be
stopped Respondent will still be able to compensate.

12. Threshold of extraterritorial obligation in AO, if it is not fulfilled why should

the court pay attention to other sources?

a) In accordance with article 59 of the ICJ Statute, past stipulations by the ICJ
are not binding, thus if a standard of extraterritoriality in an Advisory
Opinion does not apply it does not preclude the Court to examine another
standards

13. How would you react to the fact that Respondent has also fulfilled the
requirement for TK ownership?

a) Even if a few of Respondent’s people does practice the religious and cultural
practices of the Pivzao civilization the fact remains that Respondent has still
appropriated and exploited TK that belongs to both
14. How does the principal of extraterritoriality apply in this case? (advisory
opinion on the construction of the wall) note: there was something wrong with
this question as the Maastrich Principles were never utilized by the court during
deliberations of this AO

a) The extraterritorial jurisdiction on the construction of the wall relies on the

fact that the Israeli Military had occupied areas in which there were
Palestinian citizens outside the Israeli territory. There were no military
presence in the current case and no instances were DORTA had conducted its
hunting outside Respondent’s territory. As such the extraterritorial
application from the construction of the wall does not apply here. (See Para
110-111 of AO)

15. A state is allowed to do anything within its territory even if it produces

harmful effect to the right of others outside its territory? Note: This question is
already framed in a bad light from the first place, though I don’t know what to
make of that information
a) Yes, in the context of the ICCPR and ICESCR if the threshold for
extraterritorial application are not met then a conduct of a Sovereign state has
no relation to the violations of rights outside its territory
16. If we dismiss this claim and agree with you, no violations have not occurred,
knowing that the obligations in both conventions apply territorially, would this
pose a dangerous precedent? States in future cases can get away with it behind
this notion?
a) As expertly explained by Mas Rifky, the court in deciding the case in favour
of Respondent will instead be consistent with previous cases of
extraterritorial application (See AO on the construction of the wall and
Namibia para 110-112 and 118 respectively) as both cases require control
over foreign territory.

17. How do you measure threshold of ownership over traditional knowledge?

a) There is, see WIPO GRTKF = Generated, preserved, recreated, and sense of
ownership

18. What if there is no domestic law because the people do not want people to
access the knowledge anyway?

a) Notwithstanding whether or not Applicant’s people wanted their traditional

knowledge to be “accessed” the obligation within the Nagoya Protocol still
requires state parties to enact national legislation/measures to help conduct
PIC and Negotiate MAT (Nagoya Protocol). If the Applicant’s people did not
want their knowledge to be “accessed” certain measure should have been
taken by the Applicant to ensure a clear process to conduct PIC

19. What if they are just persistent objectors?

 a) If those states were indeed persistent objector, then it shows how much more
the customary rule is not established. (The Persistent Objector Rule
in International Law James A Green page 2)

20. What is extraterritorial because they are hunting it in their state?

a) Exactly the point that is trying to be made

21. What do you think is a proportionate way to still hunt the Yak?

a) Aurokan way

22. If they hunt after they reproduce, would you still ask for the prohibition?

a) In a hypothetical situation yes, as long as the Yak hunting is sustainable there

is no concern. However the Court cannot grant that remedy (Refer to ICJ
Statute on remedies)

23. If they hunt the way you want to, you still want the prohibition?

a) Refer to previous answer but emphasize it’s hypothetical nature

24. Does Yak Protection Act restrict how much they can take?

a) Address the underlying concern of the question (Why did the Applicant’s
government also limit the hunting of the Yak through the Yak Protection
Act?)

25. Is it the physical ability or cultural ability?

a) The ability to manifest their culture

26. You want prohibition to keep violation from happening, if they are hunting it
in a sustainable way you no longer need the prohibition?

a) Yeah, if only we can mediate the problem

27. Who discovered it in the first place? Does rakkab learn from the Applicant?

a) Yes they did, Dr. Isaac Bello observed from the Applicant’s people
traditional cultural practices in order to learn that consuming Tirhinga Nos
Lustuk can protect against diabetes

28. You’re against the commercialization but you ask for the profit, how do you
reconcile that?

a) The rationale behind the compensation isn’t merely about the money, it’s
about the right of the traditional knowledge holders to benefit-sharing during
utilization of their traditional knowledge
29. What is the advantage of compensation to indigeneous people?

a) The indigenous people are poor, they need money to build proper houses
(Joking manner)

b) (Serious answer) It’s a matter of right of a traditional knowledge holder to

proper compensation, the counsel needs not to concern themselves on how
the Applicant will use their money

30. Do the applicant know about the specific enzyme?

a) They do not, Applicant’s people knowledge is limited to the fact that the yak
gallbladder confers numerous health benefits (Compromis 4)

31. How does the fact harvesting yak in Rakkab violates Aurokan cultural and
religious rights? How is it different?

a) The hunting violates cultural and religious rights because of the impact they
have to the Northernmost Aurokan territory’s ability to practice their religion
(Proceed to explain the difference between Applicant’s and Respondent’s
hunting)

32. Method to hunt the Yak, is it the tool?

a) Nope, reproduction cycle, migration period, moratorium of breeding age

Yak, etc

33. How do your state hunt the Yak? What gender?

a) The males (Compromis 25)

34. How does killing with a spear and firearms is different?

a) It’s not, the Yak dies eventually (The emphasis should be put on how
Applicant balance the hunting in a delicate equilibrium)

35. What are you trying to dispute about the respondent hunting?

a) That it violates cultural and religious rights

36. Where did it say it applies to another territory?

a) Explain territorial principle of ICCPR and ICESCR

37. Don’t they have the same rights of saying that you also violate their rights?

a) Perhaps, but Respondent did not file a counter-claim

38. When did the northernmost part realized that they lost their Yak?
 a) Spring 2016, (Compromis 29)

39. Do you have any prove that they violate your rights?

a) We do (Proceed to explain)

40. They only agree that the prime minister said that but they don’t agree upon
the statement?

a) Summon PM to be a witness in the ICJ to address his excellencies concerns

(Article 43)

41. Would you agree that we prohibit the animals?

a) No, that means we will lose (Plus the Court cannot grant remedies which has
not been requested by the parties ultra petita)

42. But the yak is public domain?

a) No it is an animal

43. You found the lightbulb, just because you chose to exercise that rights, does it
mean they loose their rights?

a) Traditional knowledge does not work similarly to patent law, there must be
recreation, preservation, and generation of the knowledge within the
community (WIPO Document)

44. If somehow your people found out how to maximize the enzyme would you
still pursue this claim?

a) Then the facts would greatly differ your excellencies and it is not my position
as counsel to assume what may or may not happen.

45. Don’t you think that the gap itself that you hunt more than them, don’t you
think that you would maximize even covered up the compensation they’re
seeking?

a) That is a different subject matter and remedy that is being asked

46. Do you have diabetes? Do you see many benefits from the drug?

a) Mention the other alternatives to fight diabetes

47. How can you be so sure when there’s a guy in rakkab remember how to use
the Yak, it just so happen that you utilize the same enzyme just with a different
method? 200 doesn’t mean that they forgot?

a) Emphasize how a knowledge is categorized as TK i.e. generated, preserved,

etc. (WIPO Document)