TEAM CODE: “O”

IN THE

INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

YEAR 2009 THE CASE CONCERNING THE CONSEQUENCES OF THE DISASTER AT MONRON FACTORY ND OTHER RELATED MATTERS

THE REPUBLIC OF ANGHORE (APPLICANT) V. THE REPUBLICS OF RATANKA AND CARISTHAN (RESPONDENTS)

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE
WRITTEN SUBMISSION FOR THE RESPONDENTS

THE 2009 D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION

THE 2009 D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION

INDEX

INDEX OF AUTHORITIES ................................................................................................ I STATEMENT OF JURISDICTION ................................................................................ VIII SYNOPSIS OF FACTS ..................................................................................................... IX SUMMARY OF ARGUMENTS ..................................................................................... XIII BODY OF ARGUMENTS.................................................................................................. 1

I.] THAT RATANKA AND CARISTHAN BEAR NO RESPONSIBILITY WHATSOEVER FOR THE
ENVIRONMENTAL DAMAGE, AND HENCE, CANNOT BE HELD LIABLE TO PAY ANY COMPENSATION. ................................................................................................................. 1

A.] That Ratanka realizes the importance of protection of environment and has complied with all its international obligations. ............................................................... 1 B.] That The environmental disaster was a result of unseasonal rains and flash floods, i.e. force majeure, for which Ratanka cannot be made liable. ........................................ 2 C.] That Anghore’s own responsibility in causing the climatic changes in the region, which resulted in the present environmental disaster, undermines any claim it seeks to establish against Ratanka. ............................................................................................... 3 D.] That Caristhan has no direct or indirect role in the damage caused and cannot be held internationally liable for the same. .......................................................................... 4 II. THAT RATANKA AND CARISTHAN ARE NOT RESPONSIBLE FOR THE VIOLATION OF ANGHORE’S TERRITORIAL SOVEREIGNTY ........................................................................ 6

--------------------------------------Memorial for the Respondents----------------------------------------

THE 2009 D. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION

A.] That Caristhan Is Not Responsible For Violation Of Anghore’s TerritorialSovereignty As There Was The Situation Of Necessity ................................................. 6 B.] That the Use Of Military Bases By Caristhn In Rantankan Territory Does Not Cast Any Responsibility On Ratanka .................................................................................... 12 III. THAT
THE

ANESIANS

ARE NOT

RATANKAIANS

BUT REFUGEES AND NEED TO BE

PROTECTED BY ANGHORE ................................................................................................ 13

A.] That the Anesians are not Ratankaians ................................................................... 13 B.] That the Anesians are “Refugees” and therefore, they are entitled to refugee protection in Anghore.................................................................................................... 15 C.] That under Human Rights Norms, Anghore is obligated to provide protection to Ansieans ........................................................................................................................ 17 D.] In Arguendo, even if Anseains are Ratankaians then also Anghore cannot expel them from its Territory .................................................................................................. 18 E.] That Ratanka and Caristhan are under no obligation to pay compensation to Anghore for the cost incurred by it on the welfare of Anseians. .................................. 18 IV. THAT CARISTHAN HAS NOT VIOLATED
ITS

COMITY OBLIGATIONS UNDER

INTERNATIONAL LAW ...................................................................................................... 19 A.] Comity is not a rule of law ...................................................................................... 19 B.] In Arguendo, even if comity is a rule of law, then also Caristhan has not violated its comity obligations ......................................................................................................... 20 CONCLUSION ............................................................................................................... XV

--------------------------------------Memorial for the Respondents----------------------------------------

... Supp...... 15 Declaration of the Right to Development (G.............. Secretary of State Daniel Webster to British Minister Mr................ GAOR.......................... Eighth Report on State Responsibility. U......... Fifty-Third Session........... Supp...... Addendum (1980)....i .............. U..... Source of International Responsibility’.... No................ 11 General Assembly resolution 2200A (XXI) of 16 December 1966 ... U................ A/56/10 (2001) ................... 8.. No...S.. 1986) ........... U. ‘The Internationally Wrongful Act of the State.................. 7 Rio Declaration on Environment and Development. 5............Res.. 6......... 41/128) (Dec............................... 2........N.. Doc........ G.............. 56th Sess..A............. 11 Conclusion No...N............ Doc........R.... 10...... 6 R..4.. A/CN..... 1962).... in Report of the International Law Commission.... in Report of the International Law Commission...........................4/318/Add................... A/56/10 (2001). Fox.................. A/CONF...... 10.. ...... (1992) ......... 1 Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec........ 32 nd sess...........14.O.. 1 Draft Articles on Responsibility of States for Internationally Wrongful Acts.......... 8 Report of the ILC (1980).................... U. 17 Letters from U.. 8 ...........N............... UN Doc..... 29 BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41). 151/5/Rev........................ at 81..... ILC........ 1981 ..... Doc..........A..... HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION INDEX OF AUTHORITIES I............N....... Ago...........N................THE 2009 D.......5......................... M. Fifty-Third Session... UN Doc...................... 1 ----------------------------------Memorial for the Respondents---------------------------------------.......... 22 (XXXII)..... UN DOCUMENTS AND RESOLUTIONS Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts... 56th Sess................... A/35/10 ....

.................5-7.. 16.... June 3-14...... Doc....C........ 19 ----------------------------------Memorial for the Respondents---------------------------------------.......... 4-5 ........N... E/CN.......... June 1-16....... recognizing equity as ‘a part of international law’: (1937) PCIJ Ser.... 8 Standing Committee........ 1972.......... 8..... 1997 I..... Chaplin.................... U.................. No...........T........ 1 Diversion of the Waters from the Meuse case....4/SER.......................... 76-7…………………………………..N.. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION See Addendum to the Eighth Report on State Responsibility........ Doc.... COMM'N vol......THE 2009 D........ 16 UN Secretary General... pt........... 1992... U. .... INT'L L....... 1961........................... June 5.. 6 Convention on Biological Diversity.................. UN Doc................................... reprinted in 1980 Y....................................l (Part 1) ................... 7.................. (1850) 5 Ex. 30 May 1997 at Section II...... Slovakia).......... U...... 1760 U...... 7 ............................ 243 ....1 (1973) ................ 79............... 15 Stockholm Declaration on the Human Environment............ A/CN.................................. 70. EC/47/SC/CRP....... 16 The 1984 Cartenga Declaration on Refugees ..... 1996 I.... 7.........27. 1 United Nations Conference on Environment and Development.......B............ para..............J.........48/14/Rev...... M.. Progress Report on Informal Consultations on the Provision of International Protection to All Who Need It................. A/B.............3 Gabčíkovo-Nagymaros (Hungary v... vol...N........ Paras.............. 13................... 1.....4/318/ADD..........ii ...................N. Doc................C. 1 Yearbook of the ILC.......... A/CN............A/1980/Add.....................17/1997/8 ......J......... II..... 1992................... JUDICIAL DECISIONS Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.......... by Mr.. 9 Greenland v........ 6.......... UN Doc.... 2 II......... 1 The 1966 Bangkok principles Concerning Treatment of Refugees ..... 65.... Roberto Ago....... II ......S.................... 1 United Nations Conference on the Human Environment. /CONF. Rio Declaration on Environment and Development: Application...

.............. Preliminary Objections............... BOOKS AND TREATISES A. 1986 I. 302-03 (1985).................. Canada........... TERMINATION OF TREATIES IN INTERNATIONAL LAW 266-67...................... HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I.......... P.J.................. Stover Mfg...... 5 Rigby v......C............. 17 Mast. 6 ----------------------------------Memorial for the Respondents---------------------------------------. Canada.....................C...... 14 ............... MOORE................. M......................... 6 Phosphates in Morocco............... 1898) . Views 20 Oct.... Foos & Co.... LE STATUT JURISDIQUE DES FORCE ALLIES PENDANT LA GUERRE 1927 (1914-1918) .....THE 2009 D.......J......... ESSAYS IN HONOUR OF IAN BROWNLIE 401 (Oxford University Press. S................ v....... 3 Nuclear Weapons Advisory Opinion..iii . Views 7 Jan.. Hewitt..... Co............. 74...........C.... 488-489 ..J. 276............. UN Doc.............................................. 19 III........... 469/1991............... 485... DC.. MCNAIR.....13 A.......... THE REALITY OF INTERNATIONAL LAW....... 8 Pacific Fur Seals Arbitration........................... Cassese (Ed.......... 2003.......... UN Doc. 1996 I...........)....... CCPR/ C/78/D/829/1998 ............................... CCPR/C/49/D/469/1991. (1850) 5 Ex.................. S..... 240 .......... 826 (Washington....... 10 A.... The Current Regulation Of The Use Of Force 247... THE LAW OF TREATIES 508.. 241. TALMON..... GOODWIN-GILL AND S....... 516-18 (1961)............................................... 242.................. (1893) in J. (1982) ICJ Reports 18 . 6 Ng v.13 ALINE CHALUFOUR.... 13 G.. Communication No..I................ 829/1998.. 1938....... HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION Judge v..... US)......... B... VAMVOUKOS....... 250-51 (1986) ..………………………………........... No......... Series A/B................. 19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.......... 1999) ............. 1994.................. U 29.. 177 U.............................. Communication No..... 17 North Se Continental Shelf Case...... ……………………………………………………………………………….............

. THE ROLE OF NATIONALITY IN INTERNATIONAL LAW (1959) ...............................iv ....... 18 ----------------------------------Memorial for the Respondents---------------------------------------............. 614-15 (3rd ed.................. SHAW......... PLENDER....... 12 PATRICIA BIRNIE & ALAN BOYLE............. 2003)........ 1996) 16 G...................... 2003) ... INTERNATIONAL LAW 1031 (5th ed................ 6 M......... PRINCIPLES OF INTERNATIONAL LAW 107 (6th ed.......... .... BROWNLIE.. MAKARCZYK.. THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION............. BUERGENTHAL (EDS................. eds...... 166-167 (2nd ed............ 7 J..... SOHN AND T...................) ... (ED............. 56...THE 2009 D............... 1995 ........................ HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION G...... .... 18 SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE 322...... GOODWIN-GILL.. MOORE...............)... M.. THE REFUGEE IN INTERNATIONAL LAW.................. 7 L..................................... CUSTOMARY INTERNATIONAL LAW AND TREATIES at 213-14 (1985) ..... 18 LAWRENCE......................... VILLIGER. 13 J..... ESSAYS IN HONOUR OF JUDGE MANFRED LACHS 250 (Martinus Nij-hoff. S.............. Sec. 6 JAMES CRAWFORD........................... 1976) ..................................B......................... 4 VAN PANHUYS......... 16 HALL.. 13 OPPENHEIM'S INTERNATIONAL LAW 1155 (Sir Robert Jennings & Sir Arthur Watts eds........... 333-34 (Konrad Ginther et al.............. 9th ed... INTERNATIONAL LAW 7th Edition. NORT-EXPULSION AND NON-REFOULEMENT.............. SCHWARZENBERGER...................... THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992) ................... 1979) ....... 288 (1989)......... 13 I... 13 GUNNEL STENBERG......... PRINCIPLES OF PUBLIC INTERNATIONAL LAW.... INTERNATIONAL LAW & THE ENVIRONMENT 101 .. 826 (Washington.................. A MANUAL OF INTERNATIONAL LAW.......... 4 R.).................. 13 MALCOLM N....... B............................................... 1898).......................... 21 (6th ed. INTERNATIONAL MIGRATION LAW (1998) .... HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I............. TEXT AND COMMENTARY 183 (2002)........... DC.......... 1984)..

....Q.......................... Schwelb . I.... The Myth and Reality of Transboundary Environmental Impact Assessment.......... 293 ................ 49 INT'L & COMP...... 13 King. 13 YORAM DINSTEIN......................... 485 2004......... L..... L........ 13 Andreas Laursen...THE 2009 D........ The Use of Force and (the State of) Necessity......... 339..... ARTICLE AND JOURNALS Caroline Foster... B.. 878 (2000)... WAR...........J.............. TRANSNAT’L L............................................. 23 NZULR 265 (2008)...................... Y............ ............................. 1 Justice Jitendra N...... 31 A...........J...................... ..L.v ....... 13 ----------------------------------Memorial for the Respondents---------------------------------------....................JI......................... (2004) 4 SCC (Jour) 21 ........... AGGRESSION.................................................... 15 ....................... The Necessity Of Precaution: The Future Of Ecological Necessity And The precautionary Principle..... 13 Daniel Dobos................... L......... 903. INTERNATIONAL LAW 265 (edition 1919) ............... Bhatt..... 491 ... The Establishment And Conduct Of Extra-Territorial Military Bases In Peacetime-Some International Law Considerations..................... 6 Bathurst................. 31 B........... 7 Adrian A.............. L..... 6 IV. AND SELF-DEFENCE 184 ........................ Jurisdiction over friendly armed forces...... 9 Ian Brownlie & C.... HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION WESTLAKE........ Dynamics and Dimensions of Doctrine of Desuetude..... Necessity and Precaution in International Law: Responding to Oblique Forms of Urgency.......... 23 B........... Kosovo Crisis Inquiry: Memorandum on the International Law Aspects.... 375 (2002)..... M... 381 ... the American Law.... 40 AJIL 257...................... J............... J...... Further Developments concerning jurisdiction over friendly armed forces................ 13 FORDHAM ENVTL............. 291.... Knox.... 7 (1999)....... 13 WHEATON ELEMENTS OF INTERNATIONAL LAW 95 & 99 ................................................. 266.......................... Barham..... 11 John H.. Apperley............................. 37 VAND...........

......... Jurisdiction over friendly armed forces.vi ........ RTS & DEVELOPMENT L....... REFUGEE L..................... MISCELLANEOUS DOCUMENTS United Nation Framework Convention on Climate Change ...pdf <last accessed on 6/01/09> .. ..... 15.. Burns........ 525 ... ......THE 2009 D.edu/programs/BurnsFT....... ......... http://policy.........ohchr. Rights Based Refuge....miis. available at http://www2............63 ........org/english/bodies/hrc/index..................... 11 Tom Clark........................... J... 1620 (1984)... 163 (1959). 589... 16 The International Covenant on Civil and Political Rights. 13 O... Falk.. Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens........... 2 Letters from U.............. 71 NORDIC JOURNAL OF INTERNATIONAL LAW 523 (2002)....... 1951 ...... 11 Oscar Schachter... 3 YALE HUM.................... 457 (1991). State of Necessity as Justification for Internationally Wrongful Conduct................... 1 R............ Fox................................htm.... 1631..... M....... J......... Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention............ HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION King....S.... 584 (2004)... 36 AJIL...... Schacter.............. INT’L AFF........ 462..... <last accessed on 6/1/2009> ... The Emergence of International Environmental Law........ 167.......................... The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent States........................ 2 V........ 29 BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41)......... 539............................. 44 J.... 16 INT’L J. Secretary of State Daniel Webster to British Minister Mr......... L...... 7 R. 82 MICH... 17 William C........... the Potential of the 1951 Convention and the Need for Authoritative Interpretation... Boed.............................. 5 HOW.......... 15 & 26 (2000) ..G........... 3.... 10 Ole Spiermann......R............. 6 GENEVA CONVENTION ON THE STATUS OF refugee...................... 17 ----------------------------------Memorial for the Respondents---------------------------------------........... The Right of States to Use Armed Force.L.......

..T..1 United Nations Convention on the Law Sea.S...193…………………………………………………………………….... 1992..S....N. 16 United Nations Charter. May 9... 1833 U. 331...... Art. M. 10... 119……………………………………………………………………………………. 1945... 1983......vii ....T.... HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION The Organization of African States’ Convention Governing the Specific Aspects of Refugees Problems in Africa 1969 (OAU Convention).. 108…………………………………………………………………………………………1 ----------------------------------Memorial for the Respondents---------------------------------------. 1771 U.N... opened for signature Dec........S..T.THE 2009 D..…... 892 U.N.. as amended June 26.1 United Nations Framework Convention on Climate Change..

----------------------------------Memorial for the Respondents----------------------------------------viii . 1950. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION STATEMENT OF JURISDICTION The Republics of Ratanka and Caristhan humbly submit to the jurisdiction of the International Court of Justice for final resolution in the present dispute between the Republic of Anghore and the Republics of Ratanka and Caristhan.THE 2009 D. M. The Court’s jurisdiction is invoked under Article 36(1) read with Article 40(1) of the Statute of the International Court of Justice.

In the last 50 years the government has built a mixed economy which has improved the life of atleast 30% of the people. The climatic change has been attributed to global warming coupled with the 200 years of industrial activity in Anghore and to some degrees in Caristhan.ix . Ratankians and Caristhanis. which is one of the reasons attributed to the 500years of peace there. although neighbours. This has resulted in the melting of the Ratankian Glacier and shrinking of the Transeian River. It is prosperous with a total population of 14 million and has a similar type of economy as Anghore.THE 2009 D. neighbouring Ratanka. ANGHORE: Anghore is a country based in the Mithalian Plains. M. It is significantly better off than Ratanka with thriving Agricultural and industrial bases and a privatized economy. They have generally belonged to a single ethnic and religious group. Historically it has had trade relations with countries world-wide and to safeguard its trade it also had a strong military. Its people have traditionally been involved in subsistence farming and animal husbandry. ----------------------------------Memorial for the Respondents---------------------------------------. CLIMATIC CHANGE: Climatic change has happened in the region affecting Ratanka the most. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION SYNOPSIS OF FACTS RATANKA: Ratanka is a mountainous nation from where the Mithali River emerges. CARISTHAN: Caristhan is a coastal country neighbouring Ratanka. The relations between Ratanka and Anghore have been cordial notwithstanding the occasional problems due to differences in economic progress. are two distinct ethnic groups with no linkages to each other.

Caristhan as part of its aggressive policy of military and trade expansion decided to provide Ratanka a USD 20 billion aid for setting up chemical. incessant rainfall with the environmental changes caused a humanitarian crisis in Ratanka. thereby causing an environmental disaster. This also included the Monron factory. Caristhan was also allowed to open a military base-supporting 1. there exists a treaty signed 200 years ago by Ratanka to exercise sovereignty over the Anseians.200 years.000 personnel. Their citizenship is in doubt. specifics were not disclosed. It was widely believed that contamination of the Mithali River would slip the recession.in Ratanka and also awarded few oil blocks. now Anghore has championed the cause of environmental protection by changing regulations on economic activity and use of eco-friendly technology. and wind energy units.THE 2009 D. Although the floods subsided in 24 hours the chemicals contaminated the Mithali River and entered the Transeian forest as well as Anghore. In the last few years they have come out of the forest but have found it tough to integrate into the Ratankian society. THE DISASTER: In 2007. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION Climate change with deforestation has caused many flash floods too. But before it could recover it was hit by renewed rains which resulted in flash floods which also destroyed the Monron Factory. All these environmental changes had a huge impact on a small minority called the Anseians living in the forests for more than 1. although. M.00. Although.x . Some of these units took technical assistance from Caristhan although due to ostensible national interest concerns. ----------------------------------Memorial for the Respondents---------------------------------------. hydro-electricity. ECONOMIC AND MILITARY EXPANSION: In 2003. which is the largest chemical unit in the region.

after three days the Caristhani military withdrew from Anghore’s territory. But Anghore demanded that Caristhan first acknowledge responsibility then only it will allow its scientists. not refugees and Ratanka should take them back. Anghore insisted that Ratanka and Caristhan should bear Joint responsibility for the ----------------------------------Memorial for the Respondents---------------------------------------. MILITARY ACTION: Meanwhile the contaminated Mithali flowing from Anghore was on the door step of Caristhan. BONE OF CONTENTION: Anghore was upset at this development and clarified that environmental damage cannot be a justification for violation of sovereignty.THE 2009 D. although. It also wanted compensation from Ratanka and Caristhan for the environmental disater as well as the costs that it had incurred on the welfare of the Anseians. stating it to be a natural disaster. Although they had set up temporary camps for the Anseians. M. and. With time ticking away. Caristhan in response only issued a press briefing saying that it had no role to play. Caristhan sensing the veracity of such a situation asked Anghore to allow its scientists into Anghore so as to conduct a few tests. It also said that Anesians were not Ratankians. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION REFUGEE INFLUX: Due to the wide spread destruction in Ratanka the Anesians moved out of the Transeian forest into Anghore. The relations between Anghore and Ratanka. Anghore and Caristhan started to deteriorate.xi . Anghore clarified that Anesians were Ratankians. Ratanka dismissed the demands for compensation. Caristhan ordered its military personnel based in Ratanka to provide protection to its scientists to conduct tests.

xii . ----------------------------------Memorial for the Respondents---------------------------------------. M. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION Economic Disaster. All the parties have decided to accept the Jurisdiction of the International court of Justice and argue on the merits of the dispute.THE 2009 D.

] THAT CARISTHAN IS NOT RESPONSIBLE FOR VIOLATION OF ANGHORE’S TERRITORIALSOVEREIGNTY AS THERE WAS THE SITUATION OF NECESSITY A. FORCE MAJEURE.E.xiii . THAT RATANKA AND CARISTHAN ARE NOT RESPONSIBLE FOR THE VIOLATION OF ANGHORE’S TERRITORIAL SOVEREIGNTY A. C. I. UNDERMINES ANY CLAIM IT SEEKS TO ESTABLISH AGAINST RATANKA. B. FOR WHICH RATANKA CANNOT BE MADE LIABLE.1] Defence of necessity under customary international law --------------------------------------Memorial for the Respondents----------------------------------.] THAT Imputing liability on Caristhan is inconsistent with the principles of international liability. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION SUMMARY OF ARGUMENTS I. WHICH RESULTED IN THE PRESENT ENVIRONMENTAL DISASTER.] THAT RATANKA REALIZES THE IMPORTANCE OF PROTECTION OF ENVIRONMENT AND HAS COMPLIED WITH ALL ITS INTERNATIONAL OBLIGATIONS.THE 2009 D. RATANKA AND CARISTHAN BEAR NO RESPONSIBILITY WHATSOEVER FOR THE ENVIRONMENTAL DAMAGE.] THAT CARISTHAN HAS NO DIRECT OR INDIRECT ROLE IN THE DAMAGE CAUSED AND CANNOT BE HELD INTERNATIONALLY LIABLE FOR THE SAME. D1. M. II. D.] THAT The disaster cannot be spelled out as a consequence of Caristhan’s aid to Ratanka.] THAT ANGHORE’S OWN RESPONSIBILITY IN CAUSING THE CLIMATIC CHANGES IN THE REGION. AND HENCE.] THAT THE ENVIRONMENTAL DISASTER WAS A RESULT OF UNSEASONAL RAINS AND FLASH FLOODS. D2. CANNOT BE HELD LIABLE TO PAY ANY COMPENSATION A.

B.THE 2009 D. THEY ARE ENTITLED TO REFUGEE PROTECTION IN ANGHORE. THAT CARISTHAN HAS NOT VIOLATED ITS COMITY OBLIGATIONS UNDER INTERNATIONAL LAW A.] THAT THE ANESIANS ARE NOT RATANKAIANS B. M.] COMITY IS NOT A RULE OF LAW. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION A.] IN ARGUENDO.] THAT THE USE OF MILITARY BASES BY CARISTHN IN RANTANKAN TERRITORY DOES NOT CAST ANY RESPONSIBILITY ON RATANKA B.1] That the Anseians are Refugess B.] THAT UNDER HUMAN RIGHTS NORMS. IV. ANGHORE IS OBLIGATED TO PROVIDE PROTECTION TO ANSIEANS D. THAT THE ANESIANS ARE NOT RATANKAIANS BUT REFUGEES AND NEED TO BE PROTECTED BY ANGHORE A. THEN ALSO CARISTHAN HAS NOT VIOLATED ITS COMITY OBLIGATIONS --------------------------------------Memorial for the Respondents----------------------------------.xiv . EVEN IF COMITY IS A RULE OF LAW. B. EVEN IF ANSEAINS ARE RATANKAIANS THEN ALSO ANGHORE CANNOT EXPEL THEM FROM ITS TERRITORY E.] THAT RATANKA AND CARISTHAN ARE UNDER NO OBLIGATION TO PAY COMPENSATION TO ANGHORE FOR THE COST INCURRED BY IT ON THE WELFARE OF ANSEIANS.2] That the Anseians should be provided protection C.] IN ARGUENDO. ]THAT THE ANESIANS ARE “REFUGEES” AND THEREFORE.1] That the act of Caristhan’s Military is not attributable to Ratanka III.2] Defence of necessity under Conventional International law B.

293. Rio Declaration on Environment and Development. 1771 U.S. the sovereign right to exploit their own resources according to their own environmental and developmental policies. Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec.63. 31 A. Doc.T. The Emergence of International Environmental Law. Stockholm Declaration on the Human Environment. E/CN. INT’L AFF. A State has. Doc. 457 (1991).2 This responsibility is often considered customary international law. Art. 1 --------------------------------------Memorial for the Respondents----------------------------------. 1992. United Nations Conference on the Human Environment.T. in accordance with principles of international law. citing Oscar Schachter.N.S. 44 J. 27 [hereinafter CBD].1 Concurrently a State has a responsibility to avoid contribution to transboundary harm.T.1 (1973). 462.L. June 5. The Myth and Reality of Transboundary Environmental Impact Assessment. but is very broad in its scope. Knox. 1962). 151/5/Rev.S. 1992.N. May 9. 1760 U. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION BODY OF ARGUMENTS I. Principle 2 [hereinafter Rio Declaration].N. United Nations Conference on Environment and Development.N. 2 Id 3 John H. 1945.S. 892 U. 4 Id.JI. 41/128) (Dec.193 (entered into force Nov. Convention on Biological Diversity. para. 79. opened for signature Dec. 108 [hereinafter UNFCC]. 291.A.N.N.THE 2009 D. United Nations Convention on the Law Sea. United Nations Framework Convention on Climate Change. June 1-16. 1994) [hereinafter UNCLOS].3 The idea that all transboundary environmental harm should be presumptively unlawful is generally rejected:4 “To say that a state has no right to injure the environment of another seems quixotic in the face of the greater variety of transborder and environmental harms that occur every day. 119. 1992. U. Principle 21 [hereinafter Stockholm Declaration]. M. 331. 1833 U. 1972.T.4. June 3-14. 1986). (1992). U. 5 Id. 23. 10. That Ratanka realizes the importance of protection of environment and has complied with all its international obligations. Art. Rio Declaration on Environment and Development: Application.1 . A/CONF.14. and hence. UN Doc. 16. cannot be held liable to pay any compensation A. as amended June 26.”5 Rather than an absolute prohibition. the United Nations Charter. Declaration of the Right to Development (G.Res. citing UN Secretary General. That Ratanka and Caristhan bear no responsibility whatsoever for the environmental damage. 1983.17/1997/8. /CONF. at 293.48/14/Rev.

Fifty-Third Session. II. B. U. in Report of the International Law Commission on the Work of Its Fifty-third Session.N. A/CONF. 31 ILM 849. at 81. at p. That the environmental disaster was a result of unseasonal rains and flash floods.7 Ratanka had put in place latest international safety standards for its factory. only requires States to take cost-effective measures for environmental protection. United Nation Framework Convention on Climate Change. p. 56th Sess. Force majeure has long been accepted as precluding wrongfulness8 in international law. A situation of force majeure precluding wrongfulness only arises where three elements are met: (a) the act in question must be William C. making it materially impossible in the circumstances to perform obligation. GAOR. 56th Sess. Art.46.151/5/Rev. Burns. in the absence of full scientific certainty as to the occurrence of a particular contingency.N.6 Even the obligation that States must take precautionary action. for which Ratanka cannot be made liable.1 (1992)..N.miis. Supp. Doc. Doc. Article 14(1). U.2 . i. 10. 9 Draft Articles on Responsibility of States for Internationally Wrongful Acts. 10. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION principle of pact sunt servanda requires States to abide by customary international law in good faith.183. M. Ratanka has not violated any obligation regarding transboundary harm. U.N.THE 2009 D. 1 6 --------------------------------------Memorial for the Respondents----------------------------------. A/56/10 (2001). in Report of the International Law Commission. Article 3(3) 8 Yearbook of the ILC. opened for signature May 9. U. and had notified Anghore immediately after the chemical leakage. had taken due care in complying with its responsibilities under all environment related norms and principles. http://policy. GAOR.N.edu/programs/BurnsFT.pdf <last accessed on 6/01/09> 7 Rio Declaration on Environment and Development.. Supp. Principle 15. 1961. Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention. Therefore. No. force majeure. Doc.e. vol. Article 23 of the ILC Articles9 provides for the preclusion of the wrongfulness where the act was due to the occurrence of an irresistible force or of an unforeseen event beyond the control of the state. No. U. Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts. 1992. A/56/10 (2001) [hereinafter “ILC Commentary”].G.

recognizing equity as ‘a part of international law’: (1937) PCIJ Ser. 70. causing large scale damage and destruction.' such as principles of equity are considered to be a subsidiary source of international law. The magnitude of these rains and the flood could not have been anticipated by Ratanka. which resulted in the present environmental disaster. Subsequently. That Anghore’s own responsibility in causing the climatic changes in the region. According to the Statute of the International Court of Justice (ICJ). No. North Se Continental Shelf Case. the ICJ described the concept of equity as being a ‘direct emanation of the idea of justice’ and ‘a general principle directly applicable as law’ which should be applied as part of international law ‘to balance up the various considerations which it regards as relevant in order to produce an equitable result’. Individual opinion of Judge Hudson in the Diversion of the Waters from the Meuse case. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION brought about by an irresistible force or an unforeseen event. It had acted with diligence and carefulness in maintaining its safety standards. Ratanka cannot be held financially liable for harms in Anghore that resulted from an unforeseeable natural disaster. (1982) ICJ Reports 18.11 Considerations of equity demand that Anghore owns up its role in the natural disaster itself. unseasonal rains for over a month. Ratanka’s failure to prevent the environmental damage was due not to negligence but to genuine inability to take action in the face of a sudden situation. and a massive flood hit the state. C.3 . 76-7. --------------------------------------Memorial for the Respondents----------------------------------. 'general principles of law recognized by civilized nations. A/B. and (c) which makes it materially impossible in the circumstances to perform the obligation. which has resulted 10 11 Article 38 of the Statute of the International Court of Justice (1945).10 In the North Sea Continental Shelf cases.THE 2009 D. (b) which is beyond the control of the State concerned. M. undermines any claim it seeks to establish against Ratanka.

developed countries have historically contributed the most to the climate change problem and have the greater technological and economic capacity to address the problem. eds.4 . at 334. '15 D. does not in any way serve as PATRICIA BIRNIE & ALAN BOYLE. An equity principle. M. 2002). their response to the problem in the future must also be varied. D1. That Caristhan has no direct or indirect role in the damage caused and cannot be held internationally liable for the same.THE 2009 D.14 In Subrata Roy Chowdhury's words: 'contribution for amelioration must also be commensurate with different levels of financial resources and technologies that the developed countries command. 13 12 --------------------------------------Memorial for the Respondents----------------------------------. In the context of climate change. Simply because Caristhan was able to develop a counter to break down the spill in time to save its environment from damage. Common but differentiated State Responsibility in International Environmental Law: From Stockholm (1972) to Rio (1992). expressed in Rio Declaration. 1995). The rationale behind this is that because countries have contributed unequally to the global degradation of the atmosphere in the past. 15 Id. Thus. the principle of common but differentiated responsibilities13 will require that Anghore shoulder any costs of remediation.12 whereas developing countries have not significantly contributed to climate change and are more vulnerable to its impacts because they lack the resources to address the problem. That The disaster cannot be spelled out as a consequence of Caristhan’s aid to Ratanka. even if Ratanka is held responsible for the river pollution due to a natural disaster. Principle 7. 14 Subrata Roy Chowdhury. in SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE 322. in arguendo. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION from the climatic change brought about by 200 years of incessant industrialization in Anghore.. Caristhan did not provide technology or technical assistance to Ratanka in case of the Monron Factory. 333-34 (Konrad Ginther et al. INTERNATIONAL LAW & THE ENVIRONMENT 101 (2nd ed.

D2.. Preliminary Objections. there are two elements to be satisfied in order to establish the existence of an internationally wrongful act of the State. p. supra note 8 at p. No. 56th Sess. No. 16 Draft Articles on Responsibility of States for Internationally Wrongful Acts.N.J. Supp. 1. Monron factory had not received technical assistance from Caristhan. the oil drilling units that had been set up by Caristhan withstood the effect and did not suffer destruction.C. Caristhan did not act in any way contrary to its international obligations. as it is mentioned above that the disaster cannot be spelled out as a consequence of Caristhan’s aid to Ratanka. Caristhan did not provide any assistance to Ratanak in setting up of monron factory and therefore.N. in Report of the International Law Commission. U. even in face of severe rains and massive flood.5 . P. U.R. First. and suffered severe damage due to the natural disaster.. for responsibility to attach to the act of the State.A. Moreover. 10. the conduct in question must be attributable to the State under international law and secondly. this environmental damage cannot be attributed to Caristhan. Further. A mere inference on Anghore’s part cannot be used as the basis to impute international liability on Caristhan..17 In the instant case. Series A/B. Doc. M. Caristhan has no direct or indirect role in the damage caused and cannot be held internationally liable for the same. at p. ILC commentary. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION an indication that it had provided technical assistance to Monron factory.O.I. This is a clear evidence of the quality and standard of technology used by Caristhan. [hereinafter “ILC Draft Articles”]. Fifty-Third Session. 1938. 12 --------------------------------------Memorial for the Respondents----------------------------------. 74. 10. Hence.. A/56/10 (2001). 17 Phosphates in Morocco.THE 2009 D. G. That Imputing liability on Caristhan is inconsistent with the principles of international liability According to Article 2 of the ILC16 Draft articles. the conduct must constitute a breach of an international legal obligation in force for that State at that time.

24 Dinstein. TRANSNAT’L L.THE 2009 D. 51. actually involved the plea of necessity20. DC. INTERNATIONAL LAW 1031 (5th ed.C. That Caristhan Is Not Responsible For Violation Of Anghore’s TerritorialSovereignty As There Was The Situation Of Necessity A. 485 2004. (1893) in J. it should be “instant. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION II.1 Defence of necessity under customary international law The Caroline incident18of 1837. HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I. AGGRESSION.J.6 . WAR. The Use of Force and (the State of) Necessity. 1996 I.C. 25 Andreas Laursen. 24. M. in G. P. 18 --------------------------------------Memorial for the Respondents----------------------------------. 37 VAND. supra note 2.21 This prerequisite of necessity. 1137-38. 22 MALCOLM N. That Ratanka and Caristhan Are Not Responsible for the Violation of Anghore’s Territorial Sovereignty A. SHAW. US). 21 Supra note 17. Defences in the Jurispru-dence of International Tribunals. ILC. Slovakia). The standard of necessity is that. para. Secretary of State Daniel Webster to British Minister Mr.24 In the Gabčíkovo-Nagymaros Project case of 1997. 19 YORAM DINSTEIN. at p. Gabčíkovo-Nagymaros Project case. ¶ 4. ESSAYS IN HONOUR OF IAN BROWNLIE 401 (Oxford University Press. at p. para 40. supra note 15. ¶ 40. 26 Gabčíkovo-Nagymaros Project case (Hungary v. though frequently referred to as an instance of customary right to self-defence19. 1986 I. 93. AND SELF-DEFENCE 184 (1988).. overwhelming and leaving no choice of means and no moment of deliberation”. 1898). TALMON. J. Draft Articles. A/35/10. THE REALITY OF INTERNATIONAL LAW. 20 Report of the ILC (1980). 491. B. 2003). 1999). para. Fox.J 7. 23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.22 which is a part of customary international law. UN Doc. 65.23 dictates that military force can be used in necessity only when there are no alternative means of redress. the International Court of Justice clearly expressed that the defence of necessity was in fact recognised by customary international law25 and that it was a ground available to States in order to evade international responsibility for wrongful acts. and referred to the case of Pacific Fur Seals Arbitration. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Caroline incident.S.26 Letters from U. MOORE. S. Hungary relied on a state of ecological necessity. 14 ¶ 176. 826 (Washington. 191. GOODWIN-GILL AND S. Okowa.J.C. 1997 I. 29 BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41).

The international obligation in question excludes the possibility of invoking necessity.THE 2009 D. in J. Necessity and Precaution in International Law: Responding to Oblique Forms of Urgency.1 Essential Interest The First condition is that necessity may only be invoked to safeguard an essential interest which is to be identified29. is the only means for the State to safeguard an essential interest against a grave and imminent peril. 32. A. 29 Supra note 19 at para. necessity may not be invoked by a State as a ground for precluding wrongfulness if: a. JAMES CRAWFORD. 28 1. 27 --------------------------------------Memorial for the Respondents----------------------------------. that interest must have been threatened by a "grave and imminent peril". But there is no fixed catalogue listing the essential Laursen . TEXT AND COMMENTARY 183 (2002). “it must have been occasioned by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations.2 Defence of necessity under Conventional International law This customary principle of defence of necessity has been embodied in Article 2528 of the ILC’s draft articles on state responsibility. J. THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION. 2. does not seriously impair an essential interest of the State or States towards which the obligation exists. 266. and b.). 23 NZULR 265 (2008). that act must not have "seriously impair[ed] an essential interest" of the State towards which the obligation existed. Supra note 24 at p. Faut-il codifier l’état de nécessité en droit international. A.”27 A. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: a. the ICJ set out the elements of the plea of necessity as. Caroline Foster. (ED. Salmon. J. and the State which is the author of that act must not have "contributed to the occurrence of the state of necessity". M. ESSAYS IN HONOUR OF JUDGE MANFRED LACHS 250 (Martinus Nij-hoff. MAKARCZYK.7 . In any case. or b. the act being challenged must have been the "only means" of safeguarding that interest. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION Moreover. 501. Those conditions reflect customary international law. As per this article a five point criteria needs to be satisfied in order to plea the defence of necessity. The State has contributed to the situation of necessity.2. or of the international community as a whole. 1984).

¶ 4. Roberto Ago. Ago. Source of International Responsibility’. A/CN.4/SER. A/35/10. A/CN. 7. 7. para. ¶ 12. pt. the survival of a sector of its population. 8.. 2. U 29 35 Gabčíkovo-Nagymaros.THE 2009 D. 53. 145 34 Nuclear Weapons Advisory Opinion. Report of the ILC (1980). Addendum (1980). the water is undrinkable and unusable for any human or industrial activity38. 37 Compromis. in principle. The essential interest of Caristhan is to protect its people and its economy from an environmental disaster which has seriously damaged its environment and ecology39. including a State's "political or economic survival. it is not limited to matters of life and death. 13. COMM'N vol. Gabčíkovo-Nagymaros . U. UN Doc. 7. 39 Compromis. by Mr. 31 R. Doc..31 and clearly. A/35/10.l (Part 1) [hereinafter Ago Report] para 2 36 Crawford. 1997 I. 32 sess. UN Doc.J.C. U. para.N.32 This defence has been invoked to protect a wide variety of interests33. A. 53. Publicist Ago in his report also gives examples of the sort of interests that would satisfy article 33 [now 25]. ‘The Internationally Wrongful Act of the State. Eighth nd Report on State Responsibility. including safeguarding the environment34 and ecological interests. para.4/318/Add."36 In the instant case. Boed. Supra note 25. 1996 I.4/318/ADD. 16. State of Necessity as Justification for Internationally Wrongful Conduct. Report of the ILC (1980).J. 30 --------------------------------------Memorial for the Respondents----------------------------------. 15 & 26 (2000). 242.C. and the preservation of the environment of its territory or a part thereof. para. M.N. it was necessary to take such an action out of necessity in order to safeguard its essential interest.B. the economy of the Republic of Caristhan is dependent on Mithali River37 and due to the chemical spill.J. but also extends to the adequate functioning of the State. 1. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION interests a State may refer to.35 The extent to which a given interest is 'essential' depends on all the circumstances.2. 32.A/1980/Add. 32 R. 33 ILC Commentary. Therefore. Gabčíkovo-Nagymaros Project case. and cannot be prejudged.8 . II. reprinted in 1980 Y. J. INT'L L.30 It is a well established view that the criterion of ‘essential interest’ need not concern the very existence of the State. 183. ILC. supra note 28 at p. 32. para.C. See Addendum to the Eighth Report on State Responsibility.5-7. 38 Compromis. ¶ 16.5.2 Grave and Imminent Peril Okowa. Doc. 241. supra note 8 at p. 1997 I.. para. the continued functioning of its essential services. RTS & DEVELOPMENT L. UN Doc. A/CN. 3 YALE HUM.

44 The "peril has to be objectively established and not merely apprehended as possible. 28. para. 41-5.43 Regardless. Therefore.J. 375 (2002). This condition is highly fact-specific. 1997 I. The Necessity Of Precaution: The Future Of Ecological Necessity And The precautionary Principle. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION The second condition to be satisfied is that the essential interest is to be threatened by a grave and imminent peril. 184.C. however. that the threat will at some point inevitably be realised. it was right on the part of Caristhan to conduct such actions out of necessity. ¶ 15. supra note 8 at p.3 Only Means to Safeguard Interest Thirdly. based on the evidence available at the time. 28. Boed. 7. paras. Supra note 30 at p. Daniel Dobos. see Gabčíkovo-Nagymaros (Hungary v. 1997 I.J. a peril that appears only in the long term may still be imminent at the point in time when it is established that the realisation of that peril is certain and inevitable. Crawford. 381. It is also not doubtful that the peril was imminent. 202. M. 435.42 The ICJ also stated that the mere apprehension of peril would not suffice. Supra note. 44 Crawford. see quote in Salmon.C. 45 ILC Commentary."45 In the instant case. 1997 I.C. supra note 31 at p. 13 FORDHAM ENVTL. Slovakia). Slovakia). the course of action taken must be the only way available to safeguard the essential interest. it is required that the invoking State can establish. Slovakia). A peril must be imminent in the sense of proximate. Slovakia).J.C. A warning was issued that the water of the contaminated Mithali River continued to move downstream and it could enter Caristhan within a month46. The plea is excluded if there are other (otherwise lawful) means Boed. there is no doubt that the danger was grave. para.THE 2009 D. albeit far away.J.9 . 54-6. 253.40 The international court of justice declared that the concept of imminence goes far beyond the concept of possibility41. 43 Gabčíkovo-Nagymaros (Hungary v.. 41 40 --------------------------------------Memorial for the Respondents----------------------------------. at 41-2.2. See further the Neptune case. 29 at 183-4. danger must not be merely contingent. Supra note 12 at p. L. 46 Compromis. 56. 7. where it was said that (in French translation) “la nécessité ne doit pas être imaginaire … elle doit être réelle et pressant”. 7. 54. 42 Gabčíkovo-Nagymaros (Hungary v. Supra note 28 at p. 7. A.J. 1997 I. It was an established fact which was going to realize inevitably. Gabčíkovo-Nagymaros (Hungary v.

184."50 The only means to safeguard Caristhan’s essential interest was to carry out the test and since Aghore was not assisting caristhan in containing the spill51. CASSESE (ED. the harm done to the interest of the State 47 48 Crawford. leading to a delay in the rescue operation. supra note 22 at p.. 712. --------------------------------------Memorial for the Respondents----------------------------------. As has been pointed out. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION available. 7. supra note 29 at p. supra note 29at p.C.L. supra note 29 at p. Salmon.47 In the instant case.49 Moreover. 245. There was a full possibility of losing precious time in these back and forth of statements between the two nations. supra note 22 at p. 712. Slovakia). 49 O. Schacter. the time factor in such operations is of extreme importance: speed of action is essential if the operation is to be successful and lives preserved. Crawford. it is required that the action does not seriously impair an essential interest of another State. at 46. The Right of States to Use Armed Force. 184. 1631. Shaw. 51 Supra note 45. 1620 (1984).J. Armed Intervention in a Dichotomized World: The Case of Grenada. "in a case involving imminent danger….). A.52 This requirement involves the balancing of the competing interests of two States: on the one hand. Weiler. 52 Shaw. in A.10 . para.THE 2009 D. Supra note 45. THE CURRENT REGULATION OF THE USE OF FORCE 247. Caristhan had exhausted other diplomatic options of safeguarding its essential interest. It acted swiftly in requesting Anghore to provide all support in containing the spread of the spill but Anghore responded by saying that it would provide all assistance but insisted that Caristhan accept responsibility. the only option left was to conduct this operation out of. it would be unreasonable to maintain the continued pursuit of peaceful measures. might actually jeopardize it. 82 MICH.4 Balancing of Interest Fourthly. 58. 50 J.2. even if they may be more costly or less convenient.R. 250-51 (1986). M.48 As Professor Schacter put it. the interest in the name of which the defending State invokes necessity and. This was confirmed in GabčíkovoNagymaros (Hungary v. "a failure of peaceful attempts to bring about a solution. on the other. 1997 I.

11 . J. 54 R. 525. not merely from the point of view of the acting State but on a reasonable assessment of the competing interests. 3 YALE HUM. the essential interest of Caristhan was to safeguard its ecology.C. 5 HOW. Salmon. 7at p. A. J. 1997 I. RTS & DEVELOPMENT L. Slovakia. para. But it is submitted that the lasting benefits of an intervention designed to save lives and environment outweigh temporary impairment of a state's territorial integrity. at p. supra note 28. Article 25(2)(b).). the International Law Commission55 stressed that 'the interest relied on must outweigh all other considerations.J. State of Necessity as Justification for Internationally Wrongful Conduct. Falk. 58 ILC State responsibility Article. necessity may not be invoked by a State as a ground for precluding wrongfulness if the State has contributed to the situation of necessity or provoked. 55 Supra note 16. 56 Ole Spiermann. In its commentary on Article 25. 71 NORDIC JOURNAL OF INTERNATIONAL LAW 523 (2002). at 46. 18 (2000). 1997 I. 167. 46.THE 2009 D.2.53. the situation to come about.54 Moreover. 58 57 ILC State responsibility Article. The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent States. In the instant case. nor can it only be 'seriously' impaired. Boed.C. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION claiming a breach of international law. territorial sovereignty is not to be considered an 'essential' interest in every case.58 The contribution to the situation of necessity must be sufficiently substantial and not merely R. paragraph 2(b)57. M. environment and peoples and the same has been recognized as essential interest by the ICJ. 53 --------------------------------------Memorial for the Respondents----------------------------------. supra note 16. On the other hand Anghore is evoking its essential interest of territorial sovereignty. 163 (1959).J 7. Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens. Gabcikovo-Nagymarcos Project ((Hungary v. 262. either deliberately or by negligence. Slovakia). as already pointed out.5 Contribution to the State of Necessity Pursuant to Article 25.56 On a reasonable assessment Caristhan’s essential interest clearly outweighied the interest of Anghore as it is definite that the spill was about to enter Caristhan and Anghore was not assisting Caristhan in containing the spill.. In the Gabčíkovo-Nagymaros case the Court affirmed the need to take into account any countervailing interest of the other State concerned: GabčíkovoNagymaros (Hungary v. supra note 16. L.

No. 9th ed. 59 ILC Commentary.J. Therefore. “Armed forces are organs of the state which maintains them. 74.. Caristhan was not responsible directly or indirectly in the Monron Factory chemical breach..Q. M. 878 (2000). the conduct in question must be attributable to the State under international law and secondly. The Caristhan’s Military force cannot be attributed to Ratanka. the actions of caristhan clearly established the need to act in the defence of necessity and thus preclude wrongfulness of Caristhan. ILC commentary. 10. 1938. its actions to maintain safety of its country makes it caristhan’s organ only. 1. p. supra note 16 at p. 49 INT'L & COMP. authority and safety of the state.12 .59 As has already been proved. being created to maintain the independence.THE 2009 D. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION incidental or peripheral. for responsibility to attach to the act of the State.J. Kosovo Crisis Inquiry: Memorandum on the International Law Aspects.C. provided that they are there in the service of their state.I. Therefore. B... 12 62 OPPENHEIM'S INTERNATIONAL LAW 1155 (Sir Robert Jennings & Sir Arthur Watts eds. 61 Phosphates in Morocco.e. Apperley. 2003).61 According to Oppenheim. first. Ian Brownlie & C. P. and hence. Preliminary Objections. supra note 8 at p. That the Use of Military Bases By Caristhn In Rantankan Territory Does Not Cast Any Responsibility On Ratanka B. 205.” Caristhan’s Military was definitely in the service of its country and therefore. supra note 8 at p.1 That the act of Caristhan’s Military is not attributable to Ratanka According to Article 2 of the ILC60 Draft articles. the conduct must constitute a breach of an international legal obligation in force for that State at that time. They have that status even when on foreign territory. L. and not for some private purpose62. it is not responsible for the military actions of Caristhan. Series A/B. there are two elements to be identified in order to establish the existence of an internationally wrongful act of the State i. --------------------------------------Memorial for the Respondents----------------------------------. 903 60 ILC Draft Articles.

Bathurst. according to many jurists66. "Physical control of a territory and not sovereignty or legitimacy of title. Barham. 23 B. 1942. 16. HALL. 539. In international law. PRINCIPLES OF INTERNATIONAL LAW 107 (6th ed.” Further. 65 Adrian A. 3. the American Law. The ICJ stated in the Namibia case64 that. Cezch Year Book of International Law. III. WESTLAKE. 1971 I. p. I. M. Sec.13 . King.. The Establishment And Conduct Of Extra-Territorial Military Bases In PeacetimeSome International Law Considerations. 15. Rep. Y. King. “the Jurisdiction Over the Members of the Allied Forces in ret Britaint”. INTERNATIONAL LAW 265 (edition 1919). Schwelb. for an act to be attributable on a state.J. Jurisdiction over friendly armed forces. “any force operating on a foreign soil is in no way subject to the territorial sovereign and exercises an exclusive right of jurisdiction over its members. 339. L. Further Developments concerning jurisdiction over friendly armed forces. supra note 16 at p. That the Anesians are not Ratankaians It is stated that Anesians are not Ratankians as the treaty68 purporting to establish the sovereignty of Anesians on Ratanka is vitiated by the application of the Doctrine of “Desuetude”. the long standing and consistent practice by parties to ILC Draft Articles. LAWRENCE. p. 56. 7 (1999). Jurisdiction over friendly armed forces. 67 WHEATON ELEMENTS OF INTERNATIONAL LAW 95 & 99. 40 AJIL 257.THE 2009 D. ¶ 7. INTERNATIONAL LAW 7th Edition. that state must have control over it. 64 63 --------------------------------------Memorial for the Respondents----------------------------------.C.67” Therefore. That the Anesians are not Ratankaians but refugees and need to be protected by Anghore A. 68 Compromis. LE STATUT JURISDIQUE DES FORCE ALLIES PENDANT LA GUERRE 1927 (1914-1918).). L. is the basis of state liability for acts affecting other states65. 31 B. J. 66 ALINE CHALUFOUR. B. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION Moreover according to article 863 of the ILC article on state responsibility. 36 AJIL. the use of military base in Ratanka also does not cast any responsibility on Ratanka as it does not have any control over that military base and its activities.54. the overriding principle in this field is that. 147.

. I. M. This act of not claiming any citizenship is clearly inconsistent with the treaty which envisages the Anesians to be under Ratankan sovereignty. VAMVOUKOS.THE 2009 D. and (b) there must be a conspicuous policy of non-enforcement71. A. Legal experts view that there is doubt as to whose citizens they really are75. Dynamics and Dimensions of Doctrine of Desuetude. the Supreme Court of Appeals of West Virginia postulated a methodology for determining whether a rule or instrument of law had fallen into “desuetude”. --------------------------------------Memorial for the Respondents----------------------------------. notorious and pervasive violation for a long period. Hence.2d 720 (W. amply proving the presence of a 69 Justice Jitendra N. 21 (6th ed. 1976). G. SCHWARZENBERGER. CUSTOMARY INTERNATIONAL LAW AND TREATIES at 213-14 (1985). The Anesians have never claimed any citizenship72. PRINCIPLES OF PUBLIC INTERNATIONAL LAW. 70 416 S. 1992).14 . TERMINATION OF TREATIES IN INTERNATIONAL LAW 266-67. THE LAW OF TREATIES 508. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION a treaty inconsistent with the treaty can have the effect of terminating the treaty69. 74 Ibid. (2004) 4 SCC (Jour) 21. which is a clear pointer towards the non-enforcement of that treaty. 276. 302-03 (1985). 72 Compromis. A MANUAL OF INTERNATIONAL LAW. there has been difficulty in determining Citizenship of the Anesians74. 726.. 516-18 (1961). and pervasive violation for a long period”.E. ¶ 7. 614-15 (3rd ed. VILLIGER. Bhatt. MCNAIR. A. M. 75 ibid. 73 Ibid. The main criteria were that (a) there must be “open. 1979). Further. 71 Ibid at p. Va. In Committee on Legal Ethics v. BROWNLIE. It can be stated that there is indetermination with regard to the citizenship of Anesians both in Ratanka and Anghore even after a treaty placing the Anesians under Ratankan Sovereignty. This indetermination continues even after 200 years of the signing of the treaty. notorious. Printz70. it can be validly deduced that the act of the Anesians not to stake a claim on citizenship rights even two hundred years73 after the signing of the treaty is ample proof of open. This is the crux of the Doctrine of “desuetude”.

2 That the Anseians should be provided protection According to Article 33 of the Geneva Convention relating to the status of Refugee 1951. which concerns the principle of Non-refoulement. UN Doc.00. 22 (XXXII). 4-5 (called Standing Committee 1997). Refugee Protection in International Law ¶ 28-29 (Cambridge University Press. Therefore. States are obligated to protect asylum seekers in large scale influxes78. 77 The EXCOM is a distinct body of the UN and its Conclusions have interpretive value for the 1951 Refugee Convention. ¶ 13. EC/47/SC/CRP. 16 INT’L J. The EXCOM Conclusion No 22 basically mandates that for the purposes of the application of Article 33 of the Refugee Convention every person migrated by large scale influx shall be conferred with the ‘refugee’ status79. 584 (2004). 78 Conclusion No. VOLKER TURK AND FRANCES NICHOLSON (EDS.27. Progress Report on Informal Consultations on the Provision of International Protection to All Who Need It. these Anesians shall be treated as Refugees.THE 2009 D. 30 May 1997 at Section II. Anesians are not Ratankians.). they are entitled to refugee protection in Anghore. B. the treaty has fallen into ‘desuetude’ and as such stands nullified. GOODWIN-GILL. the Potential of the 1951 Convention and the Need for Authoritative Interpretation. Elihu Lauterpacht and Daniel Bethlehem. 1996). THE REFUGEE IN INTERNATIONAL LAW. M. in ERIKA FELLER. 79 Tom Clark. Rights Based Refuge. Therefore. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION ‘conspicuous’ policy of non-enforcement.1 That the Anseians are Refugess It is stated that as per Conclusion No 2276 of the Executive Committee (EXCOM) of the UNHCR's77 program. B. 80 Compromis. 1 981. REFUGEE L. A similar situation is present here as more than 1. a receiving State cannot Standing Committee. 76 --------------------------------------Memorial for the Respondents----------------------------------. The Scope and Content of the Principle of Non-Refoulemmt Opinion. That the Anesians are “Refugees” and therefore.000 lakh Anesians have crossed into Anghore80. 2003). 589. Paras.15 . Hence. B. 480-483 (2nd Edition.

Thus. religion. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race.. there is clear evidence of the Practice of civilized states.. 83 Compromis.. The benefit of the present provision may not. be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is. constitutes a danger to the community of that country.. Ratanka was already reeling under a Humanitarians crisis before it was hit by massive flash floods83. according to the law enunciated in Conclusion no. safety or freedom have been threatened by generalized violence.. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION expel refugees out of its territory. The above enunciations provide evidence of the Practice of civilized states. which confer the status of ‘refugee’ not only on the grounds provided in the 1951 Convention but also on grounds viz: “circumstances which have seriously disturbed public order”.. which confer the status of ‘refugee’ not only on the grounds provided in the 1951 Convention but also on grounds viz: “circumstances which have seriously disturbed public order”..16 .THE 2009 D. In this the Latin States agreed to include ‘those who have fled their country because their lives. nationality. membership of a particular social group or political opinion. 81 --------------------------------------Memorial for the Respondents----------------------------------. ¶ 11.or events seriously disturbing public order’. however.. the humanitarian crisis coupled with massive flash floods. or who. having been convicted by a final judgement of a particularly serious crime. So.81. thus binding on all States “1.22 of the EXCOM Anesians are atleast protected from being returned back. The 1966 Bangkok principles Concerning Treatment of Refugees82 also endeavoured to widen the scope of the definition.. From the above conventions. The 1984 Cartenga Declaration on Refugees82 which was adopted at a colloquim held in co-operation with UNHCR82 agreed to extend the definition of ‘refugee’..” 82 The Organization of African States’ Convention Governing the Specific Aspects of Refugees Problems in Africa 1969 (OAU Convention)82 extends the definition of a ‘refugee’ in the 1951 Convention to ‘ every person who was compelled to leave his country of origin on account of external aggression .. which destroyed vast property and killed many people can be considered as the ‘circumstances/events which have seriously disturbed public order’ and which led to the flight of the Anseians.or other circumstances which have seriously disturbed public order’82 in the definition of a ‘refugee’ already provided in the 1951 Convention.. M. 2. Various Regional Conventions82 have endeavoured to widen the definition of a “refugee”. The norm of Non-refoulement is part of customary international law. Hence.. which was the imminent cause for the migration of Anesians into Anghore. the Anseians should be considered as ‘refugees.

Rights Based Refuge: The Potential Of The 1951 Convention And The Need For Authoritative Interpretation. Anghore is obligated to provide protection to Ansieans In the Human Rights Law Regime. it is clear that since the end of the Soviet era. CCPR/ C/78/D/829/1998. 584-608. are protected under the customary international law principle of Non-refoulement. Communication No. Canada. Entry into force on 23 March 1976. for practice after 1989. M. 88 Ng v. UN Doc. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION whether or not they are party to the 1951 Convention. Judge v. the State which exposes a person to a foreseeable real risk of the violation of a fundamental right by expulsion is itself held to have violated the Although questions remained as to the customary nature of the norm of non-refoukment during the Cold War era.17 . As per the case law of the human rights treaty bodies. 87 The Human Rights Committee is a United Nations body of 18 experts that meets three times a year to consider the five-yearly reports submitted by UN member states on their compliance with the International Covenant on Civil and Political Rights. <last accessed on 6/1/2009>.htm.ohchr. Canada.84 Anseians being refugees. it is obligatory on states to protect the person present in its territory if there is a real chance of a violation of his fundamental rights on return to his state of Origin85. ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. C. available at http://www2. 1994. Communication No. 1996). in accordance with Article 49. CCPR/C/49/D/ 469/1991. see G. 16 INTERNATIONAL JOURNAL OF REFUGEE LAW.. 590. Hence. The International Covenant on Civil and Political Rights (ICCPR)86 has been interpreted in case law by the UN Human Rights Committee (HRC)87 as protecting a non-citizen from forcible return when it is predictable that aspects of the right to life would be violated88. 84 --------------------------------------Memorial for the Respondents----------------------------------. There has been considerable damage in Ratanka which has severely crippled the lifeline and livelihood of the Anesians. the norm quickly attained a customary nature. For practice before 1989. Views 7 Jan. any action which may return the Anesians back to Ratanka from Anghore would violate their right to livelihood and consequently their right to life. Views 20 Oct. 85 Tom Clark.org/english/bodies/hrc/index. THE REFUGEE IN INTERNATIONAL LAW. 469/1991.THE 2009 D. GOODWIN-GILL. 86 Adopted and opened for signature. see GUNNEL STENBERG. 2003. UN Doc. S. 829/1998. 166-167 (2nd ed. NORT-EXPULSION AND NON-REFOULEMENT. That under Human Rights Norms. 288 (1989).

THE 2009 D. Since.. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION person's right. 89 --------------------------------------Memorial for the Respondents----------------------------------. R.). THE ROLE OF NATIONALITY IN INTERNATIONAL LAW (1959).18 . 136-7. G. REFUGEES AND INTERNATIONAL RELATIONS 259 (1989). the duty of Ratanka. which is the corollary of Anghore’s right. VAN PANHUYS. 133. D.S. INTERNATIONAL MIGRATION LAW (1998) p. the financial costs that are incurred by the Republic of Anghore in course of such protection. Francois. SOHN AND T. 90 G. Therefore.S. being the corollary of the right of States to expel foreign nationals90. Customary international law89 imposes a duty on States to admit their nationals. p 233. Ratanka has no obligation to pay compensation to Anghore rather it is the international obligation of Anghore to provide care and protection to Anseians. That Ratanka and Caristhan are under no obligation to pay compensation to Anghore for the cost incurred by it on the welfare of Anseians. even if Anseains are Ratankians. 1967. then also Anghore cannot expel them from its Territory Even if Anesieans are Ratankaians. Since Anseians are not Ratankians. LOESCHER & L. has to be borne by it and not by ratanka or any third country. also gets vitiated. L. THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992). in G. it has been conclusively proved in the above arguments that Aneseians are not Ratankaians but refugees entitling protection in Anghore. Hence. MONAHAN. there is no question of any responsibility on the part of Ratanka to take them back. So. In Arguendo. 55-56. Goodwin-Gill. INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES 201-1. M. Grandlijnen van het Volkenrecht. ibid at 133-4. EDS. In the instant case as the Anesians are refugees. PLENDER. then also Ratanka doesn’t have the responsibility to take them back. Plender. BUERGENTHAL (EDS. GOODWIN-GILL. Ratanka has no duty to take the Anseians back. Thus.B. Voluntary Repatriation-Legal and Policy Issues. E. the right of Anghore to expel these foreign nationals stands vitiated.

then also a fallout like a refugee situation is something that could not have been foreseeable. 32 HARV. 248. S. Comity is not a rule of law. Co. There is a lack of agreement amongst nations as to whether comity is at all a rule of law92. if technological assistance has indeed been provided by Caristhan to the chemical facility.19 .. IV. Thus. J. (1850) 5 Ex. it needs to be understood that when Caristhan provided technology to Ratanka the only foreseeable damage that Caristhan could have imagined incase of a failure of technology is a chemical spill. convenience and expediency and its obligation is not imperative. 240. 488-489. p. Paul. In Arguendo. 177 U. That Caristhan Has Not Violated its Comity Obligations Under International Law A. Hewitt. 243. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION Since. 14 (1991). 485. The dispute with regard to the nationality of Anesians has always been confined to Anghore and Ratanka.93 91 92 Rigby v. Comity in International Law. Foos & Co. Comity is not a rule of law There has been no violation of International Comity obligations by the Republic of Caristhan. --------------------------------------Memorial for the Respondents----------------------------------.THE 2009 D. Greenland v. The migration of Anesians as a consequence of such a spill is too remote to have been foreseen by any reasonable man. abdicates Caristhan of any liability. INT’L L. but one of practice. Stover Mfg. p. Chaplin. 243. (1850) 5 Ex. v. The guiding principle in tortuous liability is that damage caused by an act is too remote if a reasonable man would not have foreseen them91 and as such any damage caused by such an act will not qualify for compensation. The remoteness of the damage. M. Anesians had never belonged to Caristhan so question of compensating Anghore just does not arise. 93 Mast. Joel R.

there was nothing at all that could be done about it. ¶ 12.20 . --------------------------------------Memorial for the Respondents----------------------------------. In Arguendo. M. as comity as a rule of international law is not stable. This sort of highhandedness and armed twisting tactics employed with a country faced with such a grave and imminent threat hits at the core of the principle of comity obligation that is international cooperation. Anghore was adamant on getting Caristhan to accept responsibility for the same. When Caristhan was faced with the grave and imminent threat of an environmental disaster. Anghore responded by saying that it would provide all assistance on the condition that Caristhan accepted responsibility for the spill95. Hence. when chemicals were about to enter Caristhan. then also Caristhan has not violated its comity obligations but rather it is Anghore which has violated its international comity obligations. But. Compromis. even if comity is a rule of law. ¶ 15. there is no way there can be an obligation to adhere to the same. the allegation made by the Anghore that Caristhan has violated the international comity obligations by not providing assistance cannot be sustained. assistance was asked from Anghore so that Caristhn could protect its people and its economy from an environmental disaster. then also Caristhan has not violated its comity obligations Even if the existence of international comity obligations as a rule of international law is established.THE 2009 D. Existence of comity as a doctrine of international law being in doubt. 94 95 Compromis. it can be concluded that it is Anghore and not Caristhan which has violated its comity obligations. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION In the instant case. B. instead of cooperating.94 On the other hand. when Ratanka realized and notified Anghore about the spill. In the instant case.

Ratanka and Caristhan bear no responsibility whatsoever for the environmental damage. cannot be held liable to pay any compensation. Ratanka and Caristhan are not responsible for the violation of Anghore’s Territorial Sovereignty III. II. arguments advanced and authorities cited. and hence. The Anesians are not Ratankaians but refugees and need to be protected by Anghore IV. Caristhan has not violated its Comity obligations under International Law All of which is respectfully submitted ___________________________________ ___________________________________ Agents for the Respondents. this Court may be pleased to adjudge and declare that- I. M.xv . --------------------------------------Memorial for the Respondents----------------------------------. HARISH MEMORIAL GOVERNMENT LAW COLLEGE INTERNATIONAL MOOT COURT COMPETITION CONCLUSION Wherefore in light of the facts of the case.THE 2009 D.

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