TEAM CODE: SP4

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE SILAHU MANENE

KINGDOM OF DOLOSTAN

APPLICANT

V.

REPUBLIC OF BALTALAND

RESPONDENT

Jointly Notified and Submitted in the Registry of the Court under Article 40(1) of the
Statute of ICJ

MEMORIAL ON THE BEHALF OF RESPONDENT

----REPUBLIC OF BALTALAND----

18TH S.P. SATHE INTERNATIONAL MOOT COURT COMPETITION, 2024

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 TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS ......................................................................................................................... ii
INDEX OF AUTHORITIES .......................................................................................................................... ii
STATEMENT OF JURISDICTION ............................................................................................................... vi
STATEMENT OF FACTS .......................................................................................................................... vii
ISSUES RAISED ......................................................................................................................................... x
SUMMARY OF ARGUMENTS .................................................................................................................. xi
ARGUMENTS ADVANCED ........................................................................................................................ 1
ARGUMENT 1 .......................................................................................................................................... 1
1) Whether or not Baltaland’s actions of restricting access of the Zolo tribe to their cultural heritage
in Baltaland’s territory is consistent with international law? ................................................................. 1
A) Baltaland is bound to enforce the UNCRIT in good faith as a signatory party. .............................. 1
A.1) The good faith principle........................................................................................................... 1
A.2) Baltaland is in accordance with the good faith principle. ....................................................... 2
B.1) Human Rights protection under International Laws ............................................................... 3
B.2) Baltaland has protected the rights of Indigenous tribes as under UNCRIT ............................. 5
ARGUMENT 2 .......................................................................................................................................... 7
2) Whether Baltaland’s expropriation of the Kanawha region is consistent with international law? ... 7
A) Baltaland’s expropriation of the Kanawha region is justifiable...................................................... 7
A.1) The current economic status of Baltaland .............................................................................. 7
A.2) International Minimum standards for expropriation .............................................................. 7
ARGUMENT 3 .......................................................................................................................................... 9
3) Whether the relocation done by the Government of Baltaland amounts to just and fair reparation
under international law? ........................................................................................................................ 9
A) Reparation for relocation done by the government of Baltaland is justifiable. ......................... 9
A.1) Just and fair reparations for relocation under UNCRIT other International law. ................... 9
PRAYERS FOR RELIEF ............................................................................................................................. 12

i
 LIST OF ABBREVIATIONS

ABBREVIATION FULL FORM

& And

Art. Article

UDHR Universal Declaration on Human Rights

UN United Nations

ICJ International Court of Justice

ICESCR International Covenant on Economic Social and Cultural

Rights
V. Versus

Para Paragraph

Hon’ble Honorable

VCLT Vienna Convention on the Laws of Treaties

ICCPR International Covenant on Civil and Political Rights

UNCRIT United Nations Convention on the Rights of Indigenous Tribe

UNDRIP United Nations Declaration on the rights of Indigenous People

UNCTID United Nations Conference on Trade and Development

INDEX OF AUTHORITIES
➢ INTERNATIONAL LAWS

S. No International Treaties, Conventions And Other Relevant Document

1. Vienna Convention on the Laws of Treaties, 1969

2. Statute of The International Court of Justice,1945

3. United Convention on the Rights of Indigenious Tribes, 1910

4. Universal Declaration on Human Rights, 1948

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5. UN Charter

6. The International Covenant on Civil and Political Rights

7. The International Covenant on Economic, Social and Cultural Rights

➢ CASE LAWS

S. No Case Laws

1. Chorzow Factory Case

2. Nuclear Tests Case, Australlia v. France

➢ BOOKS

S. No Books

1. Declaration on the rights of indegenous peoples- michel streich.

Rights of indigenous peoples Issues and challenges - Angshu J. Fouzder
2. Education Media and the UN Declaration on the Rights of Indigenous
Peoples- Lorie M. Graham and Amy Van Zyl- Chavarro
3. Handbook of Indigenous Peoples' Rights - Coinne Lennox
and Damien Short.
4. The Challenge of Respecting Indigenous Peoples' Rights

➢ JOURNALS, ARTICLES AND REPORTS

S. No Journals, Articles and Reports

1. GOOD FAITH IN INTERNATIONAL LAW, Steven Reinhold

2. Protecting Indigenous Rights in International Adjudication

3. Principle of EU environmental law

iii
4. Peace, dignity and equality on a healthy planet,United Nations

5. What are human rights? Published on 19 june 2019 by equality and

human rights commission
6. Department of Economic and Social Affairs Indigenous Peoples

7. Cultural Rights in the Case-Law of the International Court of Justice

8. The deliberate destruction of cultural heritages and how ( not) to repair

it
9. Public Interest before the ECTHR: Protection of Cultural Heritage and
the Right to Property
10. INTERNATIONAL LEASES AS A LEGAL INSTRUMENT OF
CONFLICT RESOLUTION: THE SHAB’A FARMS AS A
PROTOTYPE FOR THE RESOLUTION OF TERRITORIAL
CONFLICTS
11. The Concept of Expropriation under the ETC and other Investment
Protection Treaties
12. The NARA document on authenticity (1994)

13. Expropriation ,UNCTAD Series on Issues in International Investment

Agreements II

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➢ IMPORTANT DEFINITIONS

Applicant for the purpose of this memorandum shall stand for “Kingdom of Dolostan”

Respondent for the purpose of this memorandum shall stand for “Republic of Baltaland”

➢ DYNAMIC LINKS

Casemine | Legal & Case Research | US, UK, Indian Judgments and Law | CaseMine

JSTOR Home

http:/www.law.justia.com

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 STATEMENT OF JURISDICTION

The Kingdom of Dolostan and the Kingdom of Baltaland, have consented to submit the
current dispute concerning the Shilahu Manene and other matters to the International Court of
Justice [“ICJ”/”the court”] conferring jurisdiction to The Court pursuant to Article 36(1) of
the Statute of the Court. The parties have transmitted the Special Agreement thereof
indicating the subject of dispute to the registrar of the Court in accordance with Article 40(1)
of the statute.

The parties under takes to accept any judgment of the Court as final and binding upon them
and shall execute it in its entirety and in utmost good faith.

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STATEMENT OF FACTS

Background The moot problem deals with the dispute between two state namely
‘State of Dolostan’ and ‘State of Baltaland’. Both the countries are
the parties to the Charter of the United Nations, the statute of the
International court of Justice, the UNCRIT2010, the UDHR, ICCPR,
ICESCR, VCLT, and bilateral treaty between the; Treaty of 1910.
Kingdom of Dolostan
Dolostan is described as a "sovereign monarchy" that is ruled by the
House of Manolo. So it has a royal system of governance. Dolostan
is situated to the south of the landlocked country of Baltaland within
the Vozoka continent. Dolostan has a total population of 40 million
people, of which 100,000 are from the Zolo indigenous tribe.
Dolostan's economy primarily relies on tourism and commercial
fishing industries. It has a developing economy but is also ranked as
the happiest country in a WHO well-being survey.mDolostan's
commercial fishing industry follows sustainable practices and has
earned appreciation from international organizations like the IMO
and IUCN. The Kanawha region was leased to Dolostan for 99 years
by Baltaland in 1925 to enable access for the Zolo tribe members
living in Dolostan. Many Zolo tribe members from Dolostan visit the
Kanawha region during summer and winter solstices to hold spiritual
ceremonies and make offerings to the sacred Shilaya Mana tree and
grove.

Republic of Baltaland
Baltaland is described as a "sovereign, democratic, republic
country". So it has a republican and democratic system of
governance. Baltaland is a landlocked country situated in the center
of the Vozoka continent, bordered by other countries including
Chezin, Aroko, Dolostan, and Enzokia. The capital city is Beyanka,
which is also Baltaland's largest city, located in the north-eastern
region. Current population is approximately 100 million people.

vii
 Baltaland has an economy mainly dependent on agriculture, mining,
and tourism. Baltaland follows a parliamentary system of
government. Its parliament is unicameral comprised of 127 elected
representatives. Baltaland has long struggled to supply enough
electricity to meet demand. This led to proposals for nuclear power
development in the Kanawha region, which Dolostan opposes.

Turn of Events
In the Early History ,Kanawha region was originally inhabited by
indigenous Zolo tribe.The Zolo tribe had strong cultural ties to
sacred Shilahu Manene trees and forests During Colonial era
,Central Vozoka continent was colonized by European powers in
17th century. similarly ,France retained control over area which is
now known as Baltaland. In 1925,Kanawha region was leased by
Baltaland to Dolostan for 99 years to enable Zolo tribe access. From
2020 Onwards, Baltaland suffered severe earthquake damaging
infrastructure which led electricity shortage and proposed nuclear
plant in Kanawha region to which Dolostan Zolo tribe objects to
disruption of cultural practices. In 2021, Baltaland pursues nuclear
plant despite Dolostan objections and Proposes for terminating 1925
Kanawha lease. In 2023,Baltaland unilaterally terminates 1925 lease
over Kanawha region and moves to build nuclear plant to which
Dolostan argues violations of intl law at ICJ

Genesis of Dispute
T The Kanawha region in Southern Baltaland has been of cultural
significance and importance to the indigenous Zolo tribe since
ancient times. It is home to the sacred Shilahu Manene trees and
grove. In 1925, the Kanawha region was leased by Baltaland to
Dolostan for 99 years, allowing the Zolo tribe of Dolostan to reside
there and carry-on cultural activities. In 2020, Baltaland decided to
terminate this 1925 lease and construct a nuclear power plant in the
Kanawha region instead, to meet its electricity needs. Baltaland
proposed relocating the Zolo tribe residing in Kanawha to another

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region in Baltaland called Chokiwa. However, Dolostan and the

Zolo tribe opposed this as it would impact their cultural identity and
heritage. Despite opposition, in 2023 Baltaland terminated the 1925
lease with effect from June 2023 for the purpose of constructing the
nuclear power plant. This unilateral termination of the lease and
takeover of the culturally-important Kanawha region by Baltaland
forms the genesis of the dispute with Dolostan, which argues it
violates the rights of the Zolo tribe and international law.

Current Status Due to above state of circumstances, both the countries went to the
International Court of Justice through special agreement for
adjudication

ix
 ISSUES RAISED

ISSUE 1

Whether or not Baltaland’s actions of restricting access of the Zolo tribe to their cultural
heritage in Baltaland’s territory is consistent with international law?

ISSUE 2

Whether Baltaland’s expropriation of the Kanawha region is consistent with international

law?

ISSUE 3

Whether the relocation done by the Government of Baltaland amounts to just and fair
reparation under international law?

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SUMMARY OF ARGUMENTS

ISSUE 1

It is humbly submitted before the International Court of Justice (ICJ) that Baltaland affirms
its commitment to upholding the UN Convention on the Rights of Indigenous Tribes
(UNCRIT) in good faith as a signatory party, navigating the intricate balance between the
sanctity of treaties and the necessity for national development policies outlined in Article 5 of
UNCRIT. The argument meticulously delves into international legal principles, citing the
Vienna Convention on the Law of Treaties, the International Covenant on Civil and Political
Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights
(ICESCR). It emphasizes the state's conscientious consideration of the potential termination
of treaties under Article 62 of the VCLT and the permissible derogation under specific
conditions outlined in Article 4(1) of the ICCPR during public emergencies. Furthermore, the
right to self-determination, as per Article 1(1) of ICESCR, is acknowledged. Shifting to
Baltaland's action, the argument meticulously outlines the state's unwavering commitment to
human rights protection, particularly those of Indigenous Peoples, as enshrined in various
international instruments. The state's responsibility to prevent and redress actions against the
integrity, culture, and lands of Indigenous Peoples is underscored, highlighting the proposed
solutions for the restitution of cultural property. Ultimately, the argument concludes that
Baltaland, in safeguarding Indigenous rights and upholding the principle of non-
discrimination, has fulfilled its obligations under UNCRIT and other relevant international
legal frameworks, asserting that the state has not violated the provisions of the convention.

ISSUE 2

It is humbly submitted before the International Court of Justice (ICJ) that Baltaland's
expropriation of the Kanawha region, grounding its position on the severe economic crisis
facing the nation due to an earthquake-induced electricity deficit is justifiable. Highlighting
the international minimum standards for expropriation, the memorial contends that
Baltaland's actions meet the necessary conditions, including a public purpose, non-
discrimination, due process, and compensation. Emphasizing the adherence to nationalization
grounds of public utility and national interest, the document underscores Baltaland's
commitment to consult and notify the affected parties, particularly the Zolo tribe, while

xi
safeguarding their cultural heritage. Furthermore, the argument asserts Baltaland's
environmental responsibility by taking measures to protect flora and fauna in the Kanawha
region. Overall, the plea contends that the expropriation is a vital and lawful step essential for
national development and the well-being of the entire population, aligning with international
legal standards and demonstrating a comprehensive approach to mitigate adverse effects.

ISSUE 3

It is humbly submitted before the International Court of Justice (ICJ) that Baltaland decision
to relocate the Zolo tribe is driven by legitimate concerns such as national security, public
order, and the necessity for economic development, as allowed by Article 12(3) of the
International Covenant on Civil and Political Rights (ICCPR). The respondent emphasizes
that the relocation plan is meticulously designed to minimize adverse effects on the
indigenous community, ensuring a comprehensive displacement package, ecological
expertise, and alternative options for the construction of the power plant. Moreover, the
respondent asserts the government's commitment to preserving the cultural and
environmental aspects of the Zolo tribe, indicating a balanced approach that takes into
account the broader welfare of the nation. The respondent contends that these measures align
with international law and strike an equitable balance between the collective interests of the
state and the individual rights of the affected community.

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 ARGUMENTS ADVANCED

ARGUMENT 1

1) Whether or not Baltaland’s actions of restricting access of the Zolo tribe to their
cultural heritage in Baltaland’s territory is consistent with international law?

A) Baltaland is bound to enforce the UNCRIT in good faith as a signatory party.

A.1) The good faith principle

Few rules for the ordering of society have such a deep moral and religious influence as the
principle of sanctity of contracts: PACTA SUNT SERVANDA.1 The principle that the Treaty
obligation must be fulfilled in good faith is one of the fundamental rules that requires all
subjects of international law to exercise in good faith their rights and duties under that law. It
is the jus necessarium.2 Men must be able to assume that those with whom they deal in the
general intercourse of society will act in good faith. The ordinary meaning of good faith is
‘honesty of purpose or sincerity of declaration’ or the ‘expectation of such qualities in
others’.3 ‘Good faith’ is often used interchangeably with ‘bona fides’, which is defined as
‘freedom from intent to deceive’.4 The touchstone of good faith is therefore honesty, a
subjective state of mind, but the principle can also incorporate notions of fairness and
reasonableness, both of which concern an objective state of affairs. Good faith was
recognized as a general principle of law during the drafting of the Statute of the Permanent

1
PACTA SUNT SERVANDA, The Principle Pacta Sunt Servanda and the Nature of Obligation Under International
Law on JSTOR
2
PACTA SUNT SERVANDA, The Principle Pacta Sunt Servanda and the Nature of Obligation Under International
Law on JSTOR
3
Roscoe Pound, An Introduction to the Philosophy of Law (1922) 188.
4
John Simpson abd Edmund Weiner (eds), The Oxford English Dictionary (2 nd Ed, 1989) vol. 2,379

1
Court of International Justice.5 The declaration on principles of international law concerning
friendly relations and co-operation among states in accordance with the charter of the United
Nations and the Final Act of Conference on security and co-operation in Europe contain the
following provisions of the principle:
1) Every state is obliged to fulfill in good faith its obligation
a) Under the UN charter
b) Under the generally recognized principles and rules of international law; and
c) Under treaties valid in accordance with the generally recognized principles and rules
of international law
The principle of pacta sunt servanda is also codified in the Vienna Convention of Law Of
Treaties which states Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.6

A.2) Baltaland is in accordance with the good faith principle.

Even though Article 26 of the Vienna Convention states that Every treaty in force is binding
upon the parties to it and must be performed by them in good faith.
However, Article 5 of UNCRIT states that the State may, whenever necessary, formulate
appropriate national development policies and laws that aim at the constant improvement of
the well-being of the entire population and of all individuals.7

If circumstances fundamental to parties' original consent/obligations radically change, this

could terminate a treaty, discharge parties from further performance. Also ICCPR states; In
time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required by
the exigencies of the situation, provided that such measures are not inconsistent with their
other obligations under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.8

5
Lord Phillimore in Permanent Court of International Justice: Advisory Committee of Jurists, Proces-verbaux of
the Proceedings of the Committee, June 16th-July 24th, 1920, with Annexes (1920) 335
6
ARTICLE 26, VCLT, 1_2_1986.pdf (un.org)
7
Article 5 of UNCRIT, Fact of the case
8
ARTICLE 4, ICCPR, 1966

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PART 1 ,Article 1(1) of ICESCR states that;All peoples have the right of self-determination.
By virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural development.
In the Nuclear Tests Case, the ICJ held that: "One of the basic principles governing the
creation and performance of legal obligations is good faith. Trust and confidence are inherent
in international cooperation, in particular in an age when this cooperation in many fields is
becoming increasingly essential. Just as the very rule of pacta sunt servanda in the law of
treaties is based on good faith, so also is the binding character of an international obligation.
Thus interested States may take cognisance of unilateral declarations and place confidence in
them, and are entitled to require that the obligation thus created be respected."9
The Court found that if some prerequisites were met, then a unilateral declaration can bind a
State; these are: the context of the statement, the intention of the declaring State, no necessary
acceptance by the receiving State or observance of formal requirements. The fact that no
formal acceptance is necessary seems to demarcate the unilateral statement from a formal
agreement.

B) Baltaland’s action has not undermined the rights of the Indigenous tribes.

B.1) Human Rights protection under International Laws

Human rights are rights inherent to all human beings, regardless of race, sex, nationality,
ethnicity, language, religion, or any other status. Human rights include the right to life and
liberty, freedom from slavery and torture, freedom of opinion and expression, the right to
work and education, and many more. Everyone is entitled to these rights, without
discrimination.
Human rights are the basic rights and freedoms that belong to every person in the world, from
birth until death.

9
Nuclear Test Case (Australlia v France) Nuclear Tests Case (n 2) paras 43-50; cf Thirlway (n 25) 10-17; Camille
Goodman, A Regime for Regulating the Unilateral Acts of States at International Law’ (2006) 25 Aust Ybk Intl L
43, 53-59.)

3
Indigenous Peoples are inheritors and practitioners of unique cultures and ways of relating to
people and the environment. “Indigenous people” means people identified as ‘indigenous’ by
each state party in accordance with its domestic law and practice.10

We do not dispute the fact that the Indigenous communities have for long faced various
human rights violations and have been denied the basic right to their culture; while
recognizing the development of human kind, as a whole(Preamble). Indigenous Peoples have
sought recognition of their identities, way of life and their right to traditional lands, territories
and natural resources for years, yet throughout history, their rights have always been violated.
Indigenous Peoples today are arguably among the most disadvantaged and vulnerable groups
of people in the world. The international community now recognizes that special measures
are required to protect their rights and maintain their distinct cultures and way of life.

We also submit that we are responsible for the protection of human rights of the indigenous
people as we are binded by UNCRIT, ICCPR , UDHR and ICESCR:
States shall provide effective mechanisms for prevention of, or redressal for: i. Any action
which may have the aim and effect of depriving them of their integrity as distinct peoples, or
of their cultural values or ethnic identities;
ii. Any action which has the aim and effect of dispossessing them of their lands, territories, or
resources;
iii. Any form of forced population transfer which has the aim and effect of violating or
undermining any of their rights; and
iv. Any form of forced assimilation or integration.
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language.11
UDHR also states that Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literary or artistic production of which he is the
authorities and ICESCR also compliments it stating “Upholds the right of all peoples to self-
determination and to freely pursue economic, social and cultural development. Reinforces
indigenous autonomy over livelihoods and territories.”

10
Article 2 of UNCRIT, Fact of the case
11
Article 27 of ICCPR

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Article 5 of ICESCR also provides that the right of everyone to take part in cultural life and
to benefit from protection of moral and material interests resulting from any scientific,
literary or artistic production and Significant basis for indigenous cultural protections.
"The strong communal dimension of indigenous peoples' cultural life is indispensable to their
existence, well-being and full development...and includes the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or acquired."12 As
such in our submission we submit that we have protected the rights of Indigenous tribes.

B.2) Baltaland has protected the rights of Indigenous tribes as under UNCRIT

Article 16(b) of UNCRIT provides States, in consultation and cooperation with indigenous
peoples, shall take effective measures to facilitate the exercise and ensure the implementation
of this right. And It is evident from the fact itself that Baltaland has considered the rights of
indigenous peoples by giving the proposal before them and also conducting a favorable
environment for the dispute settlement through negotiation. However, the efforts failed due to
lack of approval of the proposal by the tribes of kanawha region. UNCRIT has Stated and
provides redress through effective mechanisms, which may include restitution, developed in
conjunction with indigenous peoples, with respect to their cultural, intellectual, religious, and
spiritual property taken without their free, prior and informed consent or in violation of their
laws, traditions and customs. For which, Baltaland have approached the following solutions
for the restitution of cultural,religious and spiritual property:13
• The State will employ botanical experts to ensure successful cultivation of Shilahu
Manene to Chokiwa; and if the tribe agrees, will pay for transplantation of the Shilahu
Mana in that region.

• The State will employ marine biologists to ensure successful relocation and breeding
of the Golden Zoloya to the rivers and its tributaries flowing in that region.
Article 9(b) of UNCRIT further provides redress through effective mechanisms, which may
include restitution, developed in conjunction with indigenous peoples, with respect to their
cultural, intellectual, religious, and spiritual property taken without their free, prior and
informed consent or in violation of their laws, traditions and customs. Baltaland has given

12
The UN Committee on Economic, Social and Cultural Rights General Comment No. 21 on Right to Take Part
in Cultural Life (2009), General comments | OHCHR
13
Fact of the case

5
importance towards their cultural heritages that is why it has huge concerns regarding the
culture of the indigenous tribe. Baltaland is performing its obligations towards its 100 million
citizens by protecting their right to employment and development of the country through the
construction of power plant. While doing so it has also prioritized the rules of the treaty
signed and international law by providing proposal for remedies. Therefore, Baltaland has not
violated the provision of UNCRIT.

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ARGUMENT 2

2) Whether Baltaland’s expropriation of the Kanawha region is consistent with

international law?

A) Baltaland’s expropriation of the Kanawha region is justifiable

A.1) The current economic status of Baltaland

It is evident from the fact that Baltaland is a sovereign, democratic, republic country, the
economy of which is mainly dependent on agriculture, mining, and tourism. The current
population of Baltaland is approximately 100 mn people. Since the beginning of the twentieth
century, Baltaland has struggled to provide sufficient electricity to all its citizens. To tackle
this deficit, Baltaland came up with two five-year plans. In 2019, there was a major
earthquake in the north-eastern part of Baltaland which led to massive destruction of
property. Meanwhile, in March 2023, the Baltaland Chambers of Commerce published their
annual report in which they stated that due to irregular electricity supply, about 56% of small-
scale industries and 37% of medium-scale industries in Baltaland have closed since 2020,
being unable to meet production deadlines resulting in breach of contracts and heavy
penalties. The Ministry of Labour and Employment of Baltaland, in their annual report, stated
that the unemployment rate in the country has increased to 27.6%, from 18.9% in the
previous year, and without any intervention, may increase to 34.7% in 2024.14

A.2) International Minimum standards for expropriation

States have a sovereign right under international law to take property held by nationals or
aliens through nationalization or expropriation for economic, political, social or other
reasons.
In order to be lawful, the exercise of this sovereign right requires, under international law,
that the following conditions be met:15
(a) Property has to be taken for a public purpose;

14
FACT OF THE CASE
15
(UNITED NATIONS CONFERENCE on TRADE and DEVELOPMENT)(https://unctad.org/system/files/official-
document/unctaddiaeia2011d7_en.pdf)

7
(b) On a non-discriminatory basis;
(c) In accordance with due process of law;
(d) Accompanied by compensation.

Nationalization, expropriation or requisitioning shall be based on grounds or reasons of

public utility, security or the national interest which are recognized as overriding purely
individual or private interests, both domestic and foreign.16

Baltaland’s expropriation is based on public purpose, Baltaland has been suffering from great
economic collapse due to earthquake so to meet the need of people and to revive the
industries providing them adequate electricity supply Baltaland expropriation of Kanawha
region (being feasible) for thermal power plant is the action of necessity of public at large.
Article 5 of UNCRIT provides; the State may, whenever necessary, formulate appropriate
national development policies and laws that aim at the constant improvement of the well-
being of the entire population and of all individuals. Baltaland has never discriminated any of
the tribes and has also guaranteed to protect the cultural heritage of Zolo tribes and has also
presented proposal to provide reparation after consultation with the people of Zolo tribe.
Baltaland has informed the Zolo tribe and state of Dolostan about the expropriation of
Kanahwa region and provided enough time after the notice given. As such in our submission
we submit that Baltaland has followed the due process of law.

Baltaland has also agreed to protect the maximum possible flora and fauna from ill-effects of
construction as well as radiation, the power plant will be constructed in one corner of
Kanawha region and as far away from Shilaya Mana and other Shilahu Manene trees as
possible, based upon expert opinions regarding the distance necessary to ensure safe
consumption of the fruits. Therefore, Baltaland has met all the international minimum
standards for expropriation which are consistent with international law.

16
(General Assembly resolution 1803(XVII) of 14 December 1962, “Permanent Sovereignty over Natural
Resources” Declaration no.4), resources.pdf (ohchr.org)

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ARGUMENT 3

3) Whether the relocation done by the Government of Baltaland amounts to just and
fair reparation under international law?

A) Reparation for relocation done by the government of Baltaland is

justifiable.

A.1) Just and fair reparations for relocation under UNCRIT other International law.

It is generally understood that the right to reparation has dual dimension under international
law: (a) a substantive dimension to be translated into the duty to provide redress for harm
suffered in the form of restitution, compensation, rehabilitation, satisfaction and, as the case
may be, guarantees of non-repetition; and
(b) Procedural dimension as instrumental in securing this substantive redress the procedural
dimension is subsumed in the concept of the duty to provide "effective domestic remedies"
explicit and most major human rights instruments. As a stated authoritatively by the Human
Rights committee, the duty of states to make reparations to individuals rights under the
Covenant have been violated is a component of effective domestic remedies: "without
reparation to individuals Covenant rights have been violated, the obligation to provide
effective remedy is not discharged." 17 It is a principle of international law that the breach of
an engagement involves an obligation to make reparation in an adequate form.18
Article 11 (b) UNCRIT have provided that Indigenous peoples deprived of their means of
subsistence and development are entitled to just and fair redress which also compliments
Article 17 of UDHR which includes19:

1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.

17
General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties to the
Covenant (2004), c) General Comment No. 31: The Nature of the General Legal Obligation Imposed on States
Parties to the Covenant (2004) | OHCHR

18
Chorzow Factory Case, Permanent Court of International Justice | INTERNATIONAL COURT OF JUSTICE (icj-
cij.org)
19
Article 17 of UDHR, Universal Declaration of Human Rights | United Nations

9
If relocation involves the expropriation of property, individuals have the right to not be
arbitrarily deprived of their property. Reparation in this context may involve compensation or
restitution for the property loss. Everyone has the right to an effective remedy by the
competent national tribunals for acts violating the fundamental rights granted him by the
constitution or by law.20 There shall not be any restrictions except those which are provided
by law, are necessary to protect national security, public order (ordre public), public health or
morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.21

Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired. Provided that the state may
expropriate such land for public use in the absence of any other recourse available.
States shall provide effective mechanisms for prevention of, or redressal for:
i. Any action which may have the aim and effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;
ii. Any action which has the aim and effect of dispossessing them of their lands, territories, or
resources;
iii. Any form of forced population transfer which has the aim and effect of violating or
undermining any of their rights; and
iv. Any form of forced assimilation or integration.

Keeping all these International laws and the provisions of UNCRIT into consideration
Baltaland has confronted with the following effective mechanism for reparation of lawful
expropriation of Kanahwa region:
a. The Zolo tribe will be offered a displacement package to resettle and rehabilitate them in
the Chokiwa region, a rural countryside in the north-eastern region of the country, which is
relatively undisturbed and very fertile. This displacement package will include funds for

20
https://www.un.org/en/about-us/universal-declaration-of-human-rights

21
Article 13 of ICCPR, ;https://www.ohchr.org/en/instruments-mechanisms/instruments/international-
covenant-civil-and-political-rights

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 18TH S.P. SATHE INTERNATIONAL MOOT COURT COMPETION, 2024

construction of homes and communal buildings such as hospitals, schools, town centers, as
well as roads. The lands will be given on a 99-year lease to the tribe by the State.

b. The State will employ botanical experts to ensure successful cultivation of Shilahu Manene
to Chokiwa; and if the tribe agrees, will pay for transplantation of the Shilahu Mana in that
region.

c. The State will employ marine biologists to ensure successful relocation and breeding of the
Golden Zoloya to the rivers and its tributaries flowing in that region.

d. If the tribe is not agreeable to the transplantation of Shilaya Mana, and in any case to
protect the maximum possible flora and fauna from ill-effects of construction as well as
radiation, the power plant will be constructed in one corner of Kanawha and as far away from
Shilaya Mana and other Shilahu Manene trees as possible, based upon expert opinions
regarding the distance necessary to ensure safe consumption of the fruits.

e. Upon certification by experts that the fruits are safe to consume, provisions will be made to
provide access to the Shilaya Mana and Shilahu Manene fruits, and the honey to the tribe.22

All these measures proposed by the respondent for expropriation aligns with the provisions
under UNCRIT, 1910 and has not in any manner proposed unjust and unfair reparation for
the Loss.

22
Para no 34, Moot Proposition

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 PRAYERS FOR RELIEF

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
International Court of Justice be pleased to:

1) Hold that the Baltaland's actions, restricting Zolo tribe's access to their cultural heritage,
comply with international law.

2) Declare that Baltaland's expropriation of the Kanawha region is consistent with

international law.

3) Hold that the relocation undertaken by Baltaland constitutes just and fair reparation under
international law.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Respondent as in duty bound, shall humbly pray.

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