Applicant 2009 - d m harish memorial moot competition

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 AND 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 APPLICANT

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

HE 2009 D. EMORIAL GOVERNMENT L AW C OLLEGE OLLEGE I NTERNATIONAL M OOT OOT C OURT OURT C OMPETITION OMPETITION T 2009 D. M. M. H H ARISH M

INDEX

INDEX OF AUTHORITIES .........................................................................................................I STATEMENT OF JURISDICTION ...........................................................................................X XI SYNOPSIS OF FACTS ....................................................... .............................................................................................................. ......................................................... ..XI

SUMMARY OF ARGUMENTS ................................................... ............................................XIV BODY OF ARGUMENTS .................................................... ............................................................................................................ ........................................................ 1 I.]

THAT

RATANKA

AND

CARISTHAN

ARE

JOINTLY

RESPONSIBLE

FOR

CAUSING

TRANSBOUNDARY ENVIRONMENTAL DAMAGE , AND ARE LIABLE TO PAY COMPENSATION FOR THE SAME.

....................................................................................................................................... 1

A.] That Ratanka has violated the principles of International law by causing transboundary

environmental harm................................................. harm..................................................................................................... ................................................................. .............

1

B.] That No direct link can be established between Anghore’s previous industrial activities and

the current environmental disaster. ............................................................................................. 7 C.] That Caristhan too owes responsibility for the damage and is liable to pay compensation to

Anghore........................................................................................................................................ 7 II. THAT

THE

REPUBLIC

OF

CARISTHAN

AND

RATANAKA

ARE JOINTLY RESPONSIBLE FOR

VIOLATION OF ANGHORE’S TERRITORIAL SOVEREIGNTY AND INTEGRITY ..................................

9

A.] That the conduct of Caristhan constitutes as an act of aggression......................................... 9


INDEX

INDEX OF AUTHORITIES .........................................................................................................I STATEMENT OF JURISDICTION ...........................................................................................X XI SYNOPSIS OF FACTS ....................................................... .............................................................................................................. ......................................................... ..XI

SUMMARY OF ARGUMENTS ................................................... ............................................XIV BODY OF ARGUMENTS .................................................... ............................................................................................................ ........................................................ 1 I.]

THAT

RATANKA

AND

CARISTHAN

ARE

JOINTLY

RESPONSIBLE

FOR

CAUSING

TRANSBOUNDARY ENVIRONMENTAL DAMAGE , AND ARE LIABLE TO PAY COMPENSATION FOR THE SAME.

....................................................................................................................................... 1

A.] That Ratanka has violated the principles of International law by causing transboundary

environmental harm................................................. harm..................................................................................................... ................................................................. .............

1

B.] That No direct link can be established between Anghore’s previous industrial activities and

the current environmental disaster. ............................................................................................. 7 C.] That Caristhan too owes responsibility for the damage and is liable to pay compensation to

Anghore........................................................................................................................................ 7 II. THAT

THE

REPUBLIC

OF

CARISTHAN

AND

RATANAKA

ARE JOINTLY RESPONSIBLE FOR

VIOLATION OF ANGHORE’S TERRITORIAL SOVEREIGNTY AND INTEGRITY ..................................

9

A.] That the conduct of Caristhan constitutes as an act of aggression......................................... 9


B.] That the use of military base in Ratanka by Caristhan casts responsibility on Ratanka...... 11 III. THAT ANSEIANS

ARE

RATANKIANS

HENCE CAN BE REPATRIATED BACK TO

WHO ARE NOT ENTITLED TO

REFUGEE

STATUS AND

RATANKA ..................................................... ...................................................................... ................. 12

A.] That Anseians are Ratankians........ ..................................................................................... 12

“Refuge es” and hence can be repatriated back........................... ba ck........................... 15 B.] That the Anseians are not “Refugees” C.] That Ratanka and Caristhan are obligated to pay due compensation to Anghore for the cost

incurred by it on the welfare of Anseians. Anseian s. ..................................... ............................................ 18 IV. THAT CARISTHAN HAS VIOLATED ITS COMITY OBLIGATIONS UNDER INTERNATIONAL LAW ....................................................................................................................................................... 19 CONCLUSION ........................................................................................................................XVII


INDEX OF AUTHORITIES

I.

UN DOCUMENTS AND RESOLUTIONS

Charter of the United Nations, 15 U.N.C.I.O.335 ........................................................................ 10 Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) ................................................ .............................................................. .............. 10 Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they live, adopted by the UN General Assembly in 1985, U.N.G.A. R ES ES. 40/114 ................... 17 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001) ................................................................................................... 10, 18 G.A. Res. 1803, U.N. G.A.O.R, 17th Sess. (1962); G.A. Res. 2849; U.N. G.A.O.R. 26th Sess. (1979); ......................................................................................................................................... 5 G.A. Res. 2849 (XXVI) U.N. Doc. A/RES/2849 (Dec. 20, 1971) ................................................. 1 G.A. Res. 2995 (XXVII) U.N. Doc. A/2995 (Dec. 15, 1972) ........................................................ 1 G.A. Res. 34/186, 34/186 , U.N. Doc. A/RES/34/186 (Dec. 18, 1 8, 1979) ..................................................... ........................................................ ... 1 G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001)............................................................ 1 Helsinki Rules on the Uses of the Waters of International Rivers, 1966 Report of the FiftySecond Conference-Helsinki 477, 484 (1967) ............................................................................ 2

----------------------------------Memorial for the Applicant----------------------------------------

i

HE 2009 D. M. H ARISH M EMORIAL GOVERNMENT L AW C OLLEGE I NTERNATIONAL M OOT C OURT C OMPETITION T

Human Rights and the Environment: Final Report by Mrs. Fatma Zohra Ksentini, Special Rapporteur, U.N. ESCOR, Commission on Human Rights, 46th Sess., at 8 & Annex I, princ. 2, at 75, U.N. Doc. E/CN.4/Sub.2/1994/9 (1994)............................................................................ 6 ILC Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, U.N. GAOR, 49th Sess., Supp. No. 10, at 197, U.N. Doc. A/49/10 (1994) ........................................ 2 International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law: Third Report by Mr. Robert Q. Quentin-Baxter, Special Rapporteur at 20, U.N. Doc. A/CN.4/360 (1982) .................................................................................................... 8 Report of the ILC on the Work of its 53rd Session, The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, U.N. Doc. A/56/10 (July 10, 2001) ...................................................................................................................................... 1 Report of the United Nations Conference on Environment and Development, U.N. Department of Economic and Social Affairs, Agenda Item 21, ¶ 2.14 & 30.3, U.N. Doc. A/CONF.151/26 (1992)........................................................................................................................................... 4 Rio Declaration on Environment and Development, June 1992, 31 I.L.M. 1261 .......................... 1 Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992).................................................................................................................................... 4 Statute of the International Law Commission, G.A. Res. 174(II), U.N. GAOR, 2d Sess., 123rd mtg., U.N. Doc. A/519, at 105 (Nov. 21, 1947) .......................................................................... 2 Stockholm Declaration on the Human Environment, 11 I.L.M. 1416, 1420 (1972) ...................... 2 ----------------------------------Memorial for the Applicant----------------------------------------

ii


Stockholm Declaration on the Human Environment, June 16, 1972, 11 I.L.M. 1416 ................... 1 U.N. Doc. A/8719 (1972) ............................................................................................................... 9 U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N.Doc. A/37/51 .................................................. 3 Universal Declaration of Human Rights art. 22, 25, & 28, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948).................................................................................................................................. 5 II.

JUDICIAL DECISIONS

Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19) ..................................... 6 Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ 1406.............................. 6 Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir. 1999); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) ........... 6 Chorzów Factory (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 13 ....................................................... 5 Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 248 ............................................................................... 1 Fadeyeva v. Russia, 2005 Eur. Ct. H.R. 379 .................................................................................. 6 Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 152 (Sept. 25) ........................... 4 Hilton v. Guyot, 159 U.S. 113, 163–64 (1895)............................................................................. 19 Immigration and Naturalization Service v. Cardoza-Fonesa , 107 S. Ct 1207 (1987) ................. 16

Lake Lanoux Arbitration (Affaire du Lac Lanoux), 12 R.I.A.A. 281 (1957) ................................. 1


iii


Legal Consequences For States of the Continued Presence of South Africa In Namibia (SouthWest Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 31 (June 21) ....... 6 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 ............................ 3, 5 Lopez Ostra v Spain, 1994 Eur. Ct. H.R. 277 ................................................................................. 6 Mehta v. India, 1998 (3) S.C.A.L.E. 602 ........................................................................................ 6 Nationality Decrees issued in Tunis and Morocco PCIJ, Series B, No. 4 .................................... 12 Nottebohm Case (1955) I.C.J. 4. .................................................................................................. 13

Nuclear Tests (N.Z. v. Fr.) 1974 I.C.J 156 ..................................................................................... 1 Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288, ................................................................................ .. 4 R v. Immigration Appeal Tribunal, ex parte Jonah (UK) [1985] Immigration Appeals Reports 7

................................................................................................................................................... 15 the Nottebohm case, 1955 I.C.J. 20; Stoeck v. Public Trustee [1921] 2 Ch 67; Re Chamberlain’s settlement [1921] 2 Ch 533; Oppenheimer v. Cattermole [1976] AC 249 ................................ 12

Trail Smelter Arbitration (U.S. v. Canda.), (1941) 3 U.N.R.I.A.A. 1905 ...................................... 1 Wildlife Soc. of South Africa v. Min. of Env. Affairs and Tourism, 1996 (9) BCLR 1221 (S.C. Tk); .............................................................................................................................................. 6 III.

BOOKS AND TREATISES

DAVID A. MARTIN, THE AUTHORITY A ND R ESPONSIBILITY OF STATES (T. ALEXANDER , ALIENKOFF, VINCENT CHETAIL EDS., 2003). ............................................................................. 17 ----------------------------------Memorial for the Applicant----------------------------------------

iv


DAVID FREESTONE, THE PRECAUTIONARY PRINCIPLE A ND I NTERNATIONAL LAW: THE CHALLENGE OF IMPLEMENTATION (K LUWER LAW I NT’L 1996). ................................................. 3 F. K RATOCHWIL, H. MAHAJAN & P. R OHRLICH, PEACE A ND DISPUTED SOVEREIGNTY: R EFLECTIONS O N CONFLICT OVER TERRITORY (1985). ............................................................... 9 FRANCOIS, GRANDLIJNEN VAN HET VOLKENRECHT 233 (1967) ................................................... 18 G. LOESCHER & L MONAHAN, EDS., R EFUGEES A ND I NTERNATIONAL R ELATIONS 259 (1989), ... 17 GREEN H. HACKWORTH, DIGEST OF I NTERNATIONAL LAW 460 (1942) ........................................ 19 HAROLD HOHMANN, PRECAUTIONARY LEGAL DUTIES A ND PRINCIPLES OF MODERN I NTERNATIONAL E NVIRONMENTAL LAW 121 (GRAHAM & TROTMAN 1994). .............................. 4 HENRY WHEATON, ELEMENTS OF I NTERNATIONAL LAW § 79 (R ICHARD HENRY DANA, JR . ED., 8TH ED. 1866) ............................................................................................................................ 19 IAN BROWNLIE, PRINCIPLES OF PUBLIC I NTERNATIONAL LAW 31 (3D ED. 1979) ......................... 19 I NTERNATIONAL LAW A ND GLOBAL CLIMATE CHANGE 152 (CHURCHILL A ND FREESTONE EDS. 1991) ............................................................................................................................................ 7 J.G. LAMMERS , POLLUTION OF I NTERNATIONAL WATER -COURSES: A SEARCH FOR SUBSTANTIAL R ULES A ND PRINCIPLES OF LAW 570........................................................................................... 1 JEAN-YVES CARLIER , THE GENEVA R EFUGEE DEFINITION A ND THE ‘THEORY OF THE THREE SCALES’ 42 (PATRICK TWOMEY, FRANCIS NICHOLSON EDS.). ................................................... 15


v


L.B. SOHN A ND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992)......................................................................................................................................... 17 O’CONNELL I NTERNATIONAL LAW 354 (2 ND ED., 1970) ................................................................. 13 OPPENHEIM'S I NTERNATIONAL LAW 642-3 (SIR R OBERT JENNINGS & SIR ARTHUR WATTS EDS., 8TH ED. 1955) .............................................................................................................................. 13 ORGANIZATION FOR ECONOMIC CO-OPERATION A ND DEVELOPMENT, OECD A ND THE E NVIRONMENT 8 (1986). .............................................................................................................. 4 R. PLENDER , I NTERNATIONAL MIGRATION LAW 75 (1972) ........................................................... 12 SHAW, I NTERNATIONAL LAW 754 (5TH ED. 2003). .......................................................................... 7 VAN PANHUYS, THE R OLE OF NATIONALITY I N I NTERNATIONAL LAW 55-56 (1959) ................... 18 IV.

ARTICLE AND JOURNALS

Anthony D'Amato and Kirsten Engel, State Responsibility For The Exportation Of Nuclear Power Technology , 74 Va. L. Rev. 1988. ....................................................................................... 9

Carol. A. Batchelor, Statelessness and the Problem of Resolving Nationality Status , 10 I NT’L J. R EFUGEE L. 156 (1998), ............................................................................................................ 13 COMITY, 12 Va. L. Rev. 353 1925-19262, 359 .......................................................................... 19 Durwood Zaelke and James Cameron, Global Warming and Climate Change- an Overview of the International Legal Process, 5 AM. U. J. I NT’L L. & POL’Y 265 (1989-1990) ............................ 1


vi


Eva Kornicker Uhlmann, State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms , 11 Geo. Int'l Envtl. L. Rev. 101,

135 (1998)……………………………………………………………………………………….6 John Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law , 25 Colum. J. Envtl. L. 283, 338-

39 (2000) ……………………………………………………………………………………….6 Mark Gray, The International Crime of Ecocide , 26 Cal. W. Int'l L.J. 215, 270-71 (1996). ......... 6 Hans Smit, International Res Judicata and Collateral Estoppel , 9 UCLA L. R EV. 44, 53 (1962). ................................................................................................................................................... 19 Harold Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law , 76 AM. J. I NT’L. L. 280, 281 (1982) ............................................... 19

J. I. Garvey, Toward a reformulation of International Refugee Law , 26 HARV. I L.J. 483 (1985), 494; . .......................................................................................................................................... 19 R. Hofmann, Refugee Generating Policies and the law of State Responsibility , 45 ZAÖRV 694 (1976), 700; . ............................................................................................................................. 19 L.T. Lee, the Right to Compensation: Refugees and countries of Asylum , 80 AJIL 532 (1986), 535-554. ..................................................................................................................................... 19 Janet Walker , Foreign Public Law And The Colour Of Comity: What's The Difference Between Friends?, 38 Can. Bus. L.J. 36 2003, 48..................................................................................................... 20


vii


John C. Dernbach, Sustainable Development as a Framework for National Governance , 49 CASE W. RES. 1, 61 (1998). ...................................................................................................... 3 L. Collins, Foreign Relations and the Judiciary (2002), 51 I.C.L.Q. 485.................................... 20 Martin Wagner, The International Legal Rights Of Indigenous Peoples Affected By Natural Resource Exploitation: A Brief Case Study , 24 Hastings Int'l & Comp. L. Rev. 491 (2001) ..... 7

Organization for Economic Co-Operation and Development, Council Recommendation on the Implementation of the Polluter-Pays Principle, 14 INT’L LEG. MAT. 238 (1975). .................. 4 Posner, The Concept of Corrective Justice in Recent Theories of Tort Law , 10 J. Leg. Stud. 187 (1981)........................................................................................................................................... 9 Status of Filipinos for the purposes of Immigration and and naturalization , 32 HARV. L.R.

(1928-9), 809. ............................................................................................................................ 12 Sumudu Atapattu, The Right to a Healthy life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment under International Law , 16 Tul. Envtl. L.J. 65 (2002)

..................................................................................................................................................... 6 V.

MISCELLANEOUS DOCUMENTS

African Charter Protocol to the Amer. Conv. on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69 ............................................................. 6 Air Pollution Prevention and Control Law (1987, rev’d 1995) (P.R.C.). ....................................... 6 American Convention of Human Rights, 1969,............................................................................ 14


viii


Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, art. 10, 39 I.L.M. 1257 ....................................................................................................................... 3 Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et. seq. (2000) .............................................................................................................................. 6 Convention for the Protection of Human Rights and Fundamental Freedoms art. 8., Nov. 4, 1950 ..................................................................................................................................................... 6 Convention on Biological Diversity, June 5, 1992, art. 23(1), 31 I.L.M. 818 ................................ 3 Convention on Transboundary Watercourses ................................................................................. 4 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, 11 I.L.M.963 ...................................................................................................................... 5 Convention Relating to Status of Refugees, 19 U.S.T. 6259, T.IA.S. No. 6577, 189 U.N.T.S. 137 ................................................................................................................................................... 15 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (1978 ............................................................................................................................................ 5 Konstitutsiia Rossiiskoi Federatsii [Konst. RF] [Constitution] (Russ.) .......................................... 6 Preamble; CBD, United Nations Convention on Biological Diversity, 1992, 31 I.L.M. 818 ........ 5 UNCLOS, United Nations Convention on the Law Of Sea, Dec. 10, 1982, 21 I.L.M. 818 ........... 5 UNFCCC, United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 5 Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978, ....................................................2


ix


STATEMENT OF JURISDICTION

The Government of the Republic of Anghore is submitting the present dispute between the Republic of Anghore and the Republics of Ratanka and Caristhan for final resolution to the International Court of Justice pursuant to a Special Agreement ( Compromis ). The Court’s jurisdiction is invoked under Article 36(1) read with Article 40(1) of the Statute of the International Court of Justice, 1950.


x


SYNOPSIS OF FACTS

RATANKA: Ratanka is a mountainous nation from where the Mithali River emerges. Its

people have traditionally been involved in subsistence farming and animal husbandry. They have generally belonged to a single ethnic and religious group, which is one of the reasons attributed to the 500years of peace there. In the last 50 years the government has built a mixed economy which has improved the life of atleast 30% of the peo ple. ANGHORE: Anghore is a country based in the Mithalian Plains, neighbouring Ratanka.

It is significantly better off than Ratanka with thriving Agricultural and industrial bases and a privatized economy. The relations between Ratanka and Anghore have been cordial notwithstanding the occasional problems due to differences in economic progress. CARISTHAN: Caristhan is a coastal country neighbouring Ratanka. It is prosperous

with a total population of 14 million and has a similar type of economy as Anghore. Historically it has had trade relations with countries world-wide and to safeguard its trade it also had a strong military. Ratankians and Caristhanis, although neighbours, are two distinct ethnic groups with no linkages to each other. CLIMATIC CHANGE: Climatic change has happened in the region affecting Ratanka

the most. 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. This has resulted in the melting of the Ratankian Glacier and shrinking of the Transeian River. Climate change with deforestation has caused many flash floods too. Although, now Anghore has championed the cause of environmental protection by changing regulations on economic activity and use of eco-friendly technology. All these environmental ----------------------------------Memorial for the Applicant----------------------------------------

xi


changes had a huge impact on a small minority called the Anseians living in the forests for more than 1,200 years. Their citizenship is in doubt, although; there exists a treaty signed 200 years ago by Ratanka to exercise sovereignty over the Anseians. In the last few years they have come out of the forest but have found it tough to integrate into the Ratankian society. ECONOMIC AND MILITARY EXPANSION: In 2003, 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, hydro-electricity, and wind energy units. This also included the Monron factory, which is the largest chemical unit in the region. Some of these units took technical assistance from Caristhan although due to ostensible national interest concerns, specifics were not disclosed. Caristhan was also allowed to open a military base-supporting 1,00,000 personnel- in Ratanka and also awarded few oil blocks. THE DISASTER: In 2007, incessant rainfall with the environmental changes caused a

humanitarian crisis in Ratanka. But before it could recover it was hit by renewed rains which resulted in flash floods which also destroyed the Monron Factory, thereby causing an environmental disaster. Although the floods subsided in 24 hours the chemicals contaminated the Mithali River and entered the Transeian forest as well as Anghore. It was widely believed that contamination of the Mithali River would slip the recession. REFUGEE INFLUX: Due to the wide spread destruction in Ratanka the Anesians

moved out of the Transeian forest into Anghore. Although they had set up temporary camps for the Anseians, Anghore clarified that Anesians were Ratankians, not refugees and Ratanka should take them back. It also wanted compensation from Ratanka and


xii


Caristhan for the environmental disater as well as the costs that it had incurred on the welfare of the Anseians. Ratanka dismissed the demands for compensation, stating it to be a natural disaster. It also said that Anesians were not Ratankians. Caristhan in response only issued a press briefing saying that it had no role to play. MILITARY ACTION: Meanwhile the contaminated Mithali flowing from Anghore was

on the door step of Caristhan. Caristhan sensing the veracity of such a situation asked Anghore to allow its scientists into Anghore so as to conduct a few tests. But Anghore demanded that Caristhan first acknowledge responsibility then only it will allow its scientists. With time ticking away, Caristhan ordered its military personnel based in Ratanka to provide protection to its scientists to conduct tests, although, after three days the Caristhani military withdrew from Anghore’s territory. BONE OF CONTENTION: Anghore was upset at this development and clarified that

environmental damage cannot be a justification for violation of sovereignty. The relations between Anghore and Ratanka, and, Anghore and Caristhan started to deteriorate. Anghore insisted that Ratanka and Caristhan should bear Joint responsibility for the 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.


xiii


SUMMARY OF ARGUMENTS

I. THAT RATANKA TRANSBOUNDARY

AND

CARISTHAN

ENVIRONMENTAL

ARE JOINTLY RESPONSIBLE FOR CAUSING DAMAGE , AND

ARE

LIABLE

TO

PAY

COMPENSATION FOR THE SAME .

A.] THAT R ATANKA HAS VIOLATED THE PRINCIPLES OF I NTERNATIONAL LAW BY CAUSING TRANSBOUNDARY ENVIRONMENTAL HARM

A.1] That Ratanka has violated the customary international law regarding transboundary pollution. A.2] That Ratanka has breached the duties cast upon it by the ILC Draft Articles. A.3] That Ratanka has breached the precautionary principle. A.4] That Ratanka has breached the polluter pays principle. A.5] That Ratanka has infringed upon the Sovereign Right of Anghore to utilize its Natural Resources and to be Free from Interference. A.6] That Ratanka breached an erga omnes obligation to protect the fundamental right to a decent environment. A.6.1] That This fundamental right exists as a general principle of international law. A.6.2] That The right to a safe environment is recognized as customary international law. B.] That NO DIRECT LINK CAN BE ESTABLISHED BETWEEN A NGHORE’S PREVIOUS INDUSTRIAL ACTIVITIES AND THE CURRENT ENVIRONMENTAL DISASTER .


xiv


C.] That CARISTHAN TOO OWES RESPONSIBILITY FOR THE DAMAGE AND IS LIABLE TO PAY COMPENSATION TO A NGHORE.

C.1] . That Monron factory was set up with Caristhan’s aid. C.2] That The technology transfer from Caristhan to Ratanka pins responsibility on Caristhan for the resultant disaster.

II. THAT

THE

REPUBLIC

OF

RESPONSIBLE FOR VIOLATION OF

CARISTHAN ANGHORE’S

AND

RATANAKA

ARE

JOINTLY

TERRITORIAL SOVEREIGNTY AND

INTEGRITY

A.] THAT THE CONDUCT OF CARISTHAN CONSTITUTES AS AN ACT OF AGGRESSION A.1] That the prohibition of aggression is a pre-emptory norm A.2] That the only exception to an act of Aggression, self-defence, is not available B.] THAT THE USE OF MILITARY BASE IN R ATANKA BY CARISTHAN CASTS RESPONSIBILITY ON

R ATANKA III. THAT ANSEIANS

ARE

RATANKIANS

WHO ARE NOT ENTITLED TO

STATUS AND HENCE CAN BE REPATRIATED BACK TO

REFUGEE

RATANKA

A.] THAT A NSEIANS ARE R ATANKIANS A.1] That there is a treaty assigning sovereignty of Anseians to Ratanka. A.2] That there is an effective link between Anseians and Ratanka B.] THAT THE A NSEIANS ARE NOT “R EFUGEES” AND HENCE CAN BE REPATRIATED BACK


xv


B.1] That Anseians are not refugees B.2] That as they are Ratankians and not refugees, they can be repatriated back to Ratanka C.] THAT R ATANKA AND CARISTHAN ARE OBLIGATED TO PAY DUE COMPENSATION TO A NGHORE FOR THE COST INCURRED BY IT ON THE WELFARE OF A NSEIANS.

C.1] That the Republic of Ratanka is obligated to pay compensation C.2] That the Republic of Caristhan is obligated to pay compensation

IV. THAT CARISTHAN

HAS

VIOLATED

ITS

COMITY

OBLIGATIONS

UNDER

INTERNATIONAL LAW


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BODY OF ARGUMENTS I. That Ratanka and Caristhan are jointly responsible for causing transboundary environmental damage, and are liable to pay compensation for the same.

A. That Ratanka has violated the principles of International law by causing transboundary environmental harm A.1 That Ratanka has violated the customary international law regarding transboundary pollution.

In accordance with the principle of sic utere tuo, ut alienum non laedas , Ratanka has a customary duty to prevent and minimize transboundary harm.1 States cannot use their territory in a manner which causes injury to the territory, property or persons of another State.2 The international law analogue of this maxim is the principle of limited territorial sovereignty which points out that a State has an affirmative obligation not to allow major pollution to cross its borders.3 This is supported by decisions of international tribunals,4as well as pronouncements of private and public international bodies.5 It is also reinforced in Principle 21 of the Stockholm

1

Trail Smelter Arbitration (U.S. v. Canda.), (1941) 3 U.N.R.I.A.A. 1905, at 1965 (Mar. 11); Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 248 (Dec. 15); Nuclear Tests (N.Z. v. Fr.) 1974 I.C.J 156 (Dec. 20); Rio Declaration on Environment and Development, June 1992, 31 I.L.M. 1261; Stockholm Declaration on the Human Environment, June 16, 1972, 11 I.L.M. 1416; G.A. Res. 2849 (XXVI) U.N. Doc. A/RES/2849 (Dec. 20, 1971); G.A. Res. 2995 (XXVII) U.N. Doc. A/2995 (Dec. 15, 1972); G.A. Res. 2996 (XXVII) U.N. Doc. A/2996 (Dec. 15, 1972); G.A. Res. 3281 (XXIX) U.N. Doc. A/9631 (Dec. 12, 1974); G.A. Res. 34/186, U.N. Doc. A/RES/34/186 (Dec. 18, 1979); G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001); UNCLOS, supra note 4, art. 194; Report of the ILC on the Work of its 53rd Session, The Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, U.N. Doc. A/56/10 (July 10, 2001); Durwood Zaelke and James Cameron, Global Warming and Climate Change- an Overview of the International Legal Process, 5 AM. U. J. I NT’L L. & POL’Y 265 (1989-1990). 2 Id. Sic utere principle has been reaffirmed in numerous other judicial pronouncements as well. 3 J.G. LAMMERS, POLLUTION OF I NTERNATIONAL WATER -COURSES: A SEARCH FOR SUBSTANTIAL R ULES A ND PRINCIPLES OF LAW 570 (1984). 4 See, e.g., Trail Smelter Arbitration, 3 R.I.A.A. 1911 (1941): "...no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence." Corfu Channel Case, 1949 I.C.J. 4, 21; Lake Lanoux Arbitration (Affaire du Lac Lanoux), 12 R.I.A.A. 281 (1957), obiter dictum- customary international law contains "a principle prohibiting the upstream State from changing the waters of a river in their natural conditions to the serious injury of a downstream State". 5 Lammer, supra note 3, at 570. ----------------------------------Memorial for the Applicant----------------------------------------

1


Declaration on the Human Environment of June 19726. Article IV of the Helsinki Rules7 also assumes limited territorial sovereignty, while Articles X8

and XI9 of the Helsinki Rules

specifically address trans-frontier river pollution. A.2 That Ratanka has breached the duties cast upon it by the ILC10 Draft Articles.

A.2.1 The ILC Draft Articles on the Law of the Non-Navigational Uses of International Watercourses prescribe an affirmative duty on the part of a state within whose territory an

emergency originates to "immediately take all practicable measures necessitated by the circumstances to prevent, mitigate, and eliminate harmful effects of the emergency”.11 Ratanka failed to take any such measure with respect to the disastrous chemical spill. 12

A.2.2 The widely supported

International Law Commission’s Draft Articles on 13

Prevention of Transboundary Harm from Hazardous Activities stipulate that States have an

obligation to take appropriate measures to prevent and minimize the risk of transboundary harm,14 to cooperate in good faith,15 to establish suitable monitoring mechanisms and implement 6

Stockholm Declaration on the Human Environment, 11 I.L.M. 1416, 1420 (1972), Principle 21 - States have... the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction 7 Helsinki Rules on the Uses of the Waters of International Rivers, 1966 Report of the Fifty-Second ConferenceHelsinki 477, 484 (1967). 8 Id. art. X., it prohibits " any new form of water pollution or any increase in the degree of existing water pollution in an international drainage basin which would cause substantial injury in the territory of a co-basin State 9

Id. art. XI., provides that a polluting state shall not only be required to cease the polluting activity but also to compensate the injured state 10 The International Law Commission (ILC), established by the UN General Assembly, promotes the progressive development of international law and its codification, Statute of the International Law Commission, G.A. Res. 174(II), U.N. GAOR, 2d Sess., 123 rd mtg., U.N. Doc. A/519, at 105 (Nov. 21, 1947). This Court has recognized and cited the work of the ILC in numerous cases. 11 ILC Draft Articles on the Law of the Non-Navigational Uses of International Watercourses, U.N. GAOR, 49th Sess., Supp. No. 10, at 197, U.N. Doc. A/49/10 (1994), art. 28. 12 G.A. Res. 56/82, U.N. Doc. A/RES/56/82 (Dec. 12, 2001). 13 ILC Prevention Articles and Commentary, U.N. Doc. A/56/10 (July 10,2001), at 381. 14 Id. art. 3. 15 ILC Prevention Articles and Commentary, supra note 20, art. 4 and at 396; Stockholm Declaration, supra note 20, Principle 24; Rio Declaration, supra note 20, Principle 7; Vienna Convention on the Law of Treaties, May 23, 1969, 8 I.L.M. 679 [hereinafter VCLT]; Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978, 17 I.L.M. 1488 ----------------------------------Memorial for the Applicant----------------------------------------

2


the necessary legislative or administrative controls16 and undertake an assessment of risk.17 Ratanka did not take any measure to avoid or reduce the risk of the potential harm. A.2.3 Ratanka is responsible for the environmental damage under the ILC Draft Articles on State Responsibility , which apply to wrongful conduct attributable to a State constituting a

breach of its international obligations. 18 A breaching State is obligated to make full reparation for the injury caused by the wrongful act.19 Ratanka violated numerous principles of customary international law in its conduct and should thus be directed to compensate 20 for the damage. A.3 That Ratanka has breached the precautionary principle.

Ratanka has violated the precautionary approach, a principle which asserts that each State has an obligation to prevent environmental damage before it occurs21 and stresses that States should not “wait and see,” but rather, should act in anticipation of environmental harm to ensure that it does not occur.22 It is included in many international environmental law treaties and agreements.23 The ICJ has recognized the precautionary approach24 as an “environmental

16

ILC Prevention Articles and Commentary, U.N. Doc. A/56/10 (July 10,2001), art. 5. Id. art. 7. 18 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), Art. 1 19 Ibid, art. 31. 20 Id, art. 36. 21 Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992) [hereinafter Rio Declaration]; David Wirth, Symposium: The Role of Science in the Uruguay Round and NAFTA Trade Disciplines , 27 CORNELL I NT’L L.J. 817 (1994). 22 John C. Dernbach, Sustainable Development as a Framework for National Governance, 49 CASE W. RES. 1, 61 (1998). 23 Convention on Biological Diversity, June 5, 1992, art. 23(1), 31 I.L.M. 818, Preamble; World Charter for Nature, Principle 11, G.A. Res. 37/7, U.N. GAOR, 37th Sess., Supp. No. 51, at 17, U.N.Doc. A/37/51 (Oct. 28, 1982); Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan. 29, 2000, art. 10, 39 I.L.M. 1257. See also DAVID FREESTONE, THE PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE CHALLENGE OF IMPLEMENTATION (Kluwer Law Int’l 1996). 24 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 (July 8) [hereinafter Nuclear Weapons]. See also Case 180/98, U.K. v. Commission, 1998 E.C.R. I-2265, 2 C.M.L.R. 1125 (1998). 17


3


imperative,”25 stating that the precautionary principle “may now be a principle of customary international law.”26 Ratanka cannot claim force majeure to avoid its responsibility in this case, because it was on notice that Ratanka had been hit by a number of flash floods in the last few years which had caused widespread loss of life and economic devastation. A state is not required to know with a level of exact scientific certainty whether a condition will occur; but rather, the precautionary approach obligates States to take appropriate measures to prevent environmental harm before it occurs.27 Ratanka breached its customary duty when it failed to take proper precautions to avert the chemical leakage into river Mithali in the event of a foreseeable flood. A.4 That Ratanka has breached the polluter pays principle.

In refusing to pay for the river water damage, Ratanka is in violation of the polluter pays principle28 which establishes that a state is required to pay for the damage it causes,29 even if the damage results from acts that do not violate customary or conventional international law.30 It has been codified in numerous treaties and international agreements.31 The ICJ has recognized the legitimacy of the polluter pays principle 32 and has further acknowledged that the obligation to 25

Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 152 (Sept. 25) Request for an Examination of Situation in Accordance with Paragraph 63 of Court's Judgment of 20 December 1974 in Nuclear Tests (N.Z. v. Fr.), 1995 I.C.J. 288, 412 (Sept. 22) [hereinafter Request for Examination]. 27 HAROLD HOHMANN, PRECAUTIONARY LEGAL DUTIES AND PRINCIPLES OF MODERN INTERNATIONAL ENVIRONMENTAL LAW 121 (Graham & Trotman 1994). 28 This principle has now developed as customary international law. Sumudu Atapattu, Evolution and the Status of the Precautionary Principle in International Law, 96 AM. J. INT’L L. 1016, 1017 (2002). 29 Organization for Economic Co-Operation and Development, Council Recommendation on the Implementation of the Polluter-Pays Principle, 14 I NT’L LEG. MAT. 238 (1975). 30 ORGANIZATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, OECD AND THE ENVIRONMENT 8 (1986). 31 e.g., Report of the United Nations Conference on Environment and Development, U.N. Department of Economic and Social Affairs, Agenda Item 21, ¶ 2.14 & 30.3, U.N. Doc. A/CONF.151/26 (1992); Convention on Transboundary Watercourses, supra note 57, at art. 2(5)(h), Rio Declaration on Environment and Development, United Nations Conference on Environment and Development, June 3-14, 1992, U.N. Doc. A/CONF.151/5/Rev. 1, reprinted in 31 I.L.M. 874 (1992) , Principle 16. 32 Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 502-03 (July 8), at 503. 26


4


make reparations is a principle of international law.33 Thus, in failing to pay for the damage, Ratanka is in breach of its customary duties, and remains responsible for the ensuing damage. A.5 That Ratanka has infringed upon the Sovereign Right of Anghore to utilize its Natural Resources and to be Free from Interference.

Each state has a sovereign right to exploit the natural resources within its jurisdiction. 34 The chemical spill in the Mithali River has affected the ability of people of Anghore to so utilize the resources of the river. Ratanka is responsible for the degradation of the river and has therefore infringed upon Anghore’s sovereignty to utilize its natural resources. A.6 That Ratanka breached an erga omnes obligation to protect the fundamental right to a decent environment.

A.6.1 This fundamental right exists as a general principle of international law.

Several international instruments guarantee health and well-being as a fundamental human right.35 Although this does not expressly guarantee the right to a decent environment, all human rights must be considered evolutionary, so as to afford them the full protection they deserve.36 Preservation of a decent environment is absolutely necessary to fully protect the right

33

Chorzów Factory (Ger. v. Pol.), 1928 P.C.I.J. (ser. A) No. 13, at 47 (Sept. 13). G.A. Res. 1803, U.N. G.A.O.R, 17th Sess. (1962); G.A. Res. 2849; U.N. G.A.O.R. 26th Sess. (1979); Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Feb. 2, 1971, 11 I.L.M.963, Art. 2(3) [hereinafter Ramsar Convention]; International Tropical Timber Agreement, Jan. 26, 1994, 33 I.L.M. 1014, Art. 1; UNFCCC, United Nations Framework Convention on Climate Change, May 9, 1992, 31 I.L.M. 851, Preamble; CBD, United Nations Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 818, Art. 3, 15(1); UNCLOS, United Nations Convention on the Law Of Sea, Dec. 10, 1982, 21 I.L.M. 818, Art. 56, 58, 61, 193; Stockholm Declaration, supra note 8, Principle 21. 35 Universal Declaration of Human Rights art. 22, 25, & 28, G.A. Res. 217A (III), U.N. Doc. A/810 at 71 (1948) hereinafter UDHR]; International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3 (1978) [hereinafter ICESCR]. 36 Legal Consequences For States of the Continued Presence of South Africa In Namibia (South- West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 31 (June 21); Aegean Sea Continental Shelf (Greece v. Turk.), 1978 I.C.J. 3 (Dec. 19); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165 (5th Cir. 1999); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980). 34


5


to health.37 One-hundred seventeen constitutions discuss protection of the environment, including those of industrialized countries like Russia 38, China39, and France.40 More than fifty of these constitutions require State action to preserve the environment.41 This obligation is reiterated by domestic courts42, international tribunals43, treaties44, and statutes45. The widespread municipal application of this principle makes it a general principle of international law. A.6.2 That The right to a safe environment is recognized as customary international law.

This right is contained in "350 multilateral treaties, 1,000 bilateral treaties and a multitude of instruments of intergovernmental organizations"46 and is a recognized norm of customary international law.47 This right, at a minimum, prohibits degradation that deprives people of its means of subsistence48, even if the harms are purely intra-state.49 Ratanka’s failure

37

Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 152 (Sept. 25) (Weeramantry, V.P. separate opinion). See also P.K. Rao, Environmental Trade Disputes and the WTO 107 (2001); Eva Kornicker Uhlmann, State Community Interests, Jus Cogens and Protection of the Global Environment: Developing Criteria for Peremptory Norms, 11 Geo. Int'l Envtl. L. Rev. 101, 135 (1998); John Lee, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law , 25 Colum. J. Envtl. L. 283, 338-39 (2000); Mark Gray, The International Crime of Ecocide, 26 Cal. W. Int'l L.J. 215, 270-71

(1996). 38 Konstitutsiia Rossiiskoi Federatsii [Konst. RF] [Constitution] (Russ.) art. 36. 39 Xian Fa, art. 26 (1982) (P.R.C.). 40 2004 Const. Charter of the Environment (Fr.). See also U.S. Dep’t of Energy, Country Analysis Briefs, France: Environmental Issues (2003). 41 E.g., S. Afr. Const. 1996 ch. 2, art. 24(b); 1975 Syntagma [SYN] [Constitution] art. 24(1) (Greece); Kuwait Const., art. 21. 42 Wildlife Soc. of South Africa v. Min. of Env. Affairs and Tourism, 1996 (9) BCLR 1221 (S.C. Tk); Anufrijeva v. Southwark London Borough Council, [2003] EWCA Civ 1406, Mehta v. India, 1998 (3) S.C.A.L.E. 602. 43 Fadeyeva v. Russia, 2005 Eur. Ct. H.R. 379; Lopez Ostra v Spain, 1994 Eur. Ct. H.R. 277. 44 UNCLOS, supra note 5, art. 194; CCC, supra note 5, art. 4; Convention for the Protection of Human Rights and Fundamental Freedoms art. 8., Nov. 4, 1950, Europ. T.S. 5; African Charter Protocol to the Amer. Conv. on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69. 45 Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et. seq. (2000); Air Pollution Prevention and Control Law (1987, rev’d 1995) (P.R.C.). 46 Human Rights and the Environment: Final Report by Mrs. Fatma Zohra Ksentini, Special Rapporteur, U.N. ESCOR, Commission on Human Rights, 46th Sess., at 8 & Annex I, princ. 2, at 75, U.N. Doc. E/CN.4/Sub.2/1994/9 (1994). 47 Sumudu Atapattu, The Right to a Healthy life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment under International Law, 16 Tul. Envtl. L.J. 65 (2002) at 78. 48 Richard L. Herz, Litigating Environmental Abuse under the Alien Tort Claims Act: A Practical Assessment , 40 Va. J. Int'l L. 545 (2000) at 577. 49 Martin Wagner, The International Legal Rights Of Indigenous Peoples Affected By Natural Resource Exploitation: A Brief Case Study, 24 Hastings Int'l & Comp. L. Rev. 491 (2001) at 503. ----------------------------------Memorial for the Applicant----------------------------------------

6


to maintain the safety standards in Monron unit has threatened the decent environment of numerous people, including the tribal minority Anseins, violating this obligation erga omnes. B. That No direct link can be established between Anghore’s previous industrial activities and the current environmental disaster.

Liability is a feasible mechanism only when the damage is identifiable and traceable to a State of origin.50 With environmental damage, highly qualified publicists admit that engaging State responsibility is deficient51 since it is impossible to apply liability to different environmental harms resulting from varied economic and social activities. 52 Climate change, in particular, is caused by cumulative greenhouse gas emissions by all countries that combine in the atmosphere,53 which may even have occurred a long time ago. The flash floods that hit Ratanka were a result of global warming, Caristhan’s industrial activities, and most prominently, due to the deforestation and recent spurt of industrial activity in Ratanka. There is no credible evidence to conclude with reasonable certainty that the chemical spill was caused due to Anghore’s previous industrialisation. Even prior to any climatic changes being noticed, Anghore had made considerable environment favourable changes in its regulations and industrial activity. C. That Caristhan too owes responsibility for the damage and is liable to pay compensation to Anghore. C.1. That Monron factory was set up with Caristhan’s aid.

Caristhan provided USD 20 billion in aid to Ratanka to support the setting up of industrial units, many of which used technology from Caristhan or were built using technical 50

SHAW, INTERNATIONAL LAW 754 (5th ed. 2003). SHAW, INTERNATIONAL LAW 754 (5th ed. 2003); BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 274 (6th ed. 2003). 52 Schachter, International Environmental Law, 44 J. INT’L AFF. 457, 462 (1991). 53 Churchill, Controlling Emissions of Greenhouse Gases, in INTERNATIONAL LAW AND GLOBAL CLIMATE CHANGE 152 (Churchill and Freestone eds. 1991). 51


7


assistance from Caristhan. It is amply clear that Caristhan had provided technical assistance to Monron Factory – as the speed within which it was able to develop a chemical to break down the spill could only have meant that it had access to information from Monron Factory. As the aid to Ratanka was an extension of Caristhan’s geo-political and military expansion in the region and in different parts of the world, it needs to accept responsibility for the consequences of the same. C.2 That The technology transfer from Caristhan to Ratanka pins responsibility on Caristhan for the resultant disaster.

A state that exports, or allows to be exported, dangerous technology to another state may be liable under the international law of "state responsibility" regardless of the fact that the injury occurs outside the exporting nation's territory and involves foreign nationals, rather than citizens of the state.54 The risk of accident can be reduced if international law compels an upgrading of safety design and construction of hazardous units in advance of public necessity and in the hope of helping to avert catastrophic accidents.55The twin pillars of the classic law of state responsibility for injuries to aliens are the doctrine of the international minimum standard and the standard of nondiscrimination against nonnationals, the essence of both of which is not implicated with boundary limitation. Newly emerging concepts of international justice among states arguably dissolve territorial line-drawing in appropriate cases.56Territoriality is irrelevant especially where abnormally hazardous activities are concerned. Exporting nations could thus be

54

Anthony D'Amato and Kirsten Engel, STATE RESPONSIBILITY FOR THE EXPORTATION OF NUCLEAR POWER TECHNOLOGY, 74 Va. L. Rev. 1988. 55 Robert Quentin-Baxter, former special rapporteur for a special study of the International Law Commission, reported that it was suggested to the Commission that the state [of which a multinational corporation is a national] should be liable when it exports dangerous industries to developing states and harm results. International Liability for Injurious Consequences Arising Out of Acts Not Prohibited by International Law: Third Report by Mr. Robert Q. Quentin-Baxter, Special Rapporteur at 20, U.N. Doc. A/CN.4/360 (1982) reprinted in [1982] 2 Y.B. Int'l L. Comm'n at 60-61, U.N. Doc. A/CN.4/SER.A/1982/Add.1 (Part 1) [hereinafter Quentin-Baxter's Third Report]. 56 See F. K RATOCHWIL, H. MAHAJAN & P. R OHRLICH, PEACE A ND DISPUTED SOVEREIGNTY: R EFLECTIONS O N CONFLICT OVER TERRITORY (1985). ----------------------------------Memorial for the Applicant----------------------------------------

8


held to owe a duty to do justice to the foreign populations upon exporting technology that falls below a given safety standard. The very act of import-export creates a relationship between the parties that on a socialcontractarian view of justice-and certainly upon an Aristotelian view-gives rise to expectations of, and a duty of, doing justice, at the very least in the minimal form of compensatory justice. 57 Thus, it would be a denial of justice not to furnish compensation to an injured party in appropriate circumstances.58 Caristhan cannot escape responsibility and liability to compensate by saying that it had no role in this dispute for reason of not having any direct or indirect role in the damage caused. The obligation to do justice extraterritorially is clearly not excluded by any customary international law norm.59 II. That the Republic of Caristhan and Ratanaka are jointly responsible for violation of Anghore’s territorial sovereignty and integrity

A. That the conduct of Caristhan constitutes as an act of aggression

The UN General Assembly adopted a consensus definition of Aggression in 1971. The U.N. defines "aggression" as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner 60

inconsistent with the Charter of the United Nations, as set out in this Definition." As a

particularized standard for determinations of aggression it complements Article 2(4)61's general prescription that: All Members shall refrain in their international relations from the

57

Anthony D'Amato and Kirsten Engel, State Responsibility For The Exportation Of Nuclear Power Technology, 74 Va. L. Rev. 1988. 58 Posner, The Concept of Corrective Justice in Recent Theories of Tort Law, 10 J. Leg. Stud. 187 (1981). 59 Anthony D'Amato and Kirsten Engel, STATE RESPONSIBILITY FOR THE EXPORTATION OF NUCLEAR POWER TECHNOLOGY, 74 Va. L. Rev. 1988. 60 U.N. Doc. A/8719 (1972) 61 Charter of the United Nations, 15 U.N.C.I.O.335, 26 June 1945 [hereinafter UN Charter]. ----------------------------------Memorial for the Applicant----------------------------------------

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threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Moreover,

Article 3 of the UN Definition of Aggression62 illustrates some of the activities as an act of aggression. Clause 1 states: “The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary , resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof.” Caristhan’s military force had entered into Anghore’s territory by force and

occupied it for three days63. Therefore, the military action of Caristhan violates Article 2(4) of the UN charter and constitutes as an act of aggression. A.1 That the prohibition of aggression is a pre-emptory norm

Article 2(4) of the UN is considered as a pre-emptory norm64 which cannot be derogated from except in the case of self-defence which is expressly mentioned in Article 51 of the UN charter 65 and is also a customary international law66. Furthermore, the Article 26 of the ILC articles67 states that the circumstances precluding wrongfulness do not authorize or excuse any derogation from a peremptory norm of general international law. So far, relatively few peremptory norms have been recognized, such as prohibitions of aggression68. Therefore, circumstances precluding wrongfulness cannot justify a breach of a State’s obligations under a peremptory rule of general international law. 62

UN definition of Aggression, supra note 1, Article 3(1). Compromis, ¶ 15. 64 Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) [hereinafter “ILC Commentary”]., at 208. 65 See also Article 6, supra note 7. 66 ILC commentary, supra note 64. 67 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), [hereinafter “ILC Draft Articles”], Article 26 at p. 7. 68 ILC Commentary, supr note 64 at p. 283. 63


10


A.2 That the only exception to an act of Aggression, self-defence, is not available

The only exception to article 2(4) of the UN charter is the right to self-defence69. Article 670 of the UN Definition of Aggression clearly means that the right of self-defense is not circumscribed and is available as an affirmative defense to a charge of aggression. The foremost condition of the right to self-defence is that an armed attack is launched, or is immediately threatened, against the state’s territory or forces, (and probably its nationals).71 Anghore did not launch any such armed attack or threat against Caristhan. Therefore, the actions of Caristhan cannot be considered to be in self defence, and are hence violative of Anghore’s territorial integrity and sovereignty. B. That the use of military base in Ratanka by Caristhan casts responsibility on Ratanka

According to Article 1672 of the ILC’s state responsibility articles: “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.” The obligation not to use force may also be breached by an

assisting State through permitting the use of its territory by another State to carry out an armed attack against a third State.73 Ratanka provided its territory for Caristhan’s military base, and

69

UN Charter, supra note 2, Article 51. UN Definition of Aggression, supra note 1, article 6 - Nothing in this definition shall be construed as in any way enlarging or diminishing the scope of the Charter including its provisions concerning cases in which the use of force is lawful. 71 Supra note 2. 72 Ibid, ILC Draft Articles, Article 16 at p. 2. 73 ILC commentary, supra note 8, Article 16 at p. 157. For example, a statement made by the Government of the Federal Republic of Germany in response to an allegation that Germany had participated in an armed attack by allowing United States military aircraft to use airfields in its territory in connection with the United States intervention in Lebanon. While denying that the measures taken by the United States and the United Kingdom in the Near East constituted intervention, the Federal Republic of Germany nevertheless seems to have accepted that the act of a State in placing its own territory at the disposal of another State in order to facilitate the commission of an 70


11


Caristhan used the same base to use force against the territory of Anghore.74 Therefore, the act of Ratanka in placing its own territory at the disposal of Caristhan in order to facilitate the commission of an unlawful use of force by it was itself an international wrongful act. III. That Anseians are Ratankians who are not entitled to Refugee status and hence can be repatriated back to Ratanka

A. That Anseians are Ratankians A.1 That there is a treaty assigning sovereignty of Anseians to Ratanka.

Under a treaty with Anghore, Ratanka had undertaken to exercise sole sovereignty over the Anseians75. The natural consequence of such an undertaking is that the people over whom such sovereignty is exercised would be nationals of that sovereign76. The Permanent Court of International Justice in its Advisory opinion in the case concerning Nationality Decrees issued in Tunis and Morocco

77

emphasized that it not for international law but for the internal law of each

state to determine who is, and who is not, to be considered its national 78. But it explicitly added that even in respect of matters which in principle were not regulated by international law (like the questions of nationality), the right of a state to use its discretion may be restricted by

unlawful use of force by that other State was itself an internationally wrongful act, For the text of the note see Z.a.ö.R.V., vol. 20 (1960), pp. 663-664. 74 Compromis, ¶ 15. 75 Compromis, ¶ 7. 76 Filipinos and Puerto Ricans were considered nationals of the U.S.A. as at one point it exercised its sovereignty over them. R. PLENDER , I NTERNATIONAL MIGRATION LAW 75 (1972); See also Status of Filipinos for the purposes of Immigration and and naturalization, 32 HARV. L.R. (1928-9), 809. 77 Nationality Decrees issued in Tunis and Morocco PCIJ, Series B, No. 4. 78 See the Advisory opinion of the PCIJ in 1923 on the Nationality Decrees Issued in Tunis and Morocco (French Zone), Series B, No 4, at p 24; the Nottebohm case, 1955 I.C.J. 20; Stoeck v. Public Trustee [1921] 2 Ch 67; Re Chamberlain’s settlement [1921] 2 Ch 533; Oppenheimer v. Cattermole [1976] AC 249. Articles 1 and 2 of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930, provides that ‘it is for each state to determine under its own law who are its nationals’ and ‘Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State’. ----------------------------------Memorial for the Applicant----------------------------------------

12


obligations which it may have undertaken towards other States 79. Hence, Ratanka cannot say that Anseians are not Ratankians in view of the treaty signed with Anghore. A.2 That there is an effective link between Anseians and Ratanka

The International Court of Justice in the Nottebohm Case80 formulated the doctrine of “Effective Link”. The court stated that “...nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the 81

existence of reciprocal rights and duties ”. This doctrine has since been moulded and developed

into a broader concept in the area of nationality legislation and practice based upon principles embodied in State practice, treaties, case law and general principles of law.82 According to State practice, birth, descent, or residence can each be presumed to support a genuine and effective link or substantial connection between the individual and the State 83. The principle of habitual residence has been practiced by civilized nations, which is evidenced in Article 6(3)84 of the

79

As an example of treaty obligations conferring on questions of nationality an international character so as not to be exclusively a matter for the state concerned, see the arbitration between Germany and Poland concerning the Acquisition of Polish Nationality (1924), RIAA, 1, p 401. Note also the decision of the Inter-American Court of Human Rights that while the conferment and regulation of nationality fell within the jurisdiction of the state, this principle was limited by international law for the protection of human rights: Proposed Amendments to the Naturalization provisions of the Political Constitution of Costa Rica (1984), ILR, 79, p 283. See O PPENHEIM'S I NTERNATIONAL LAW 642-3 (Sir Robert Jennings & Sir Arthur Watts eds., 8 th ed. 1955); O’ CONNELL I NTERNATIONAL LAW 354 (2nd ed., 1970). 80 Nottebohm Case (1955) I.C.J. 4. 81 (1955) I.C.J. 23. 82 Examples include the 1997 European Convention on Nationality and the 'Principles on Citizenship Legislation Concerning the Parties to the Peace Agreement on Bosnia and Herzegovina', adopted by the Expert Meeting on Citizenship Legislation held in co-operation with the United Nations High Commissioner for Refugees (UNHCR), the Council of Europe, Office of the High Representative, OSCE, and State party delegates from the five States on the territory of the former Yugoslavia (attached in Annex to Batchelor, Leclerc, Schack, 'Citizenship and Prevention of Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia', UNHCR European Series, Vol.3, No. l, June 1997). Both instruments refer explicitly to the genuine and effective link and request States to apply this doctrine in specific circumstances. 83 Carol. A. Batchelor, Statelessness and the Problem of Resolving Nationality Status, 10 I NT’L J. R EFUGEE L. 156 (1998), 157. 84

“Each State Party shall provide in its internal law for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years before the lodging of an application”


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European Convention on Nationality.85 Hence, it is imperative that Ratanka respects the practice of civilized nations86 and acknowledges the Anseians as its nationals, who have habitually resided in the Transeian forest for over ten centuries87. The other core element of the “effective link” doctrine as envisaged in the Nottebohm case88 is the rule of Jus soli , which states that the citizenship of a person is determined by the place of his birth89. This rule has been incorporated in various Regional conventions and treaties90. In the instant case Ratanka had undertaken to exercise sole sovereignty over the Anseians as per a treaty with Anghore91. Every Anseian born post the signing of the treaty was infact born in Ratanka. So, every living Anseian has in effect been born in Ratanka as every person born prior to the signing of the treaty i.e. 200 years ago and hence, outside Ratanka would be dead today. Thus, all living Anseians are Ratankan nationals by birth.

85

The article stipulates that each State Party shall provide for the possibility of naturalisation of persons lawfully and habitually resident on its territory. In establishing the conditions for naturalisation, it shall not provide for a period of residence exceeding ten years. 86 As on 6/ 1/ 2009, twenty eight countries have signed it, while eighteen countries, including countries like The Netherlands, Germany, Switzerland, Denmark and Austria have ratified theEuropean Convention on Nationality1997; http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=166&CM=&DF=&CL=ENG . 87 Compromis, ¶ 7. 88 1955 I.C.J. 4. 89 Bryan A. Garner (ed. in chief), Black’s law dictionary 880 (8 th ed. 1999). 90 American Convention of Human Rights, 1969, Article 20 in C OLLECTION OF I NTERNATIONAL I NSTRUMENTS A ND OTHER LEGAL TEXTS , Vol. II, 140. See also, African Charter on the Rights and Welfare of the Child,1990, article 6, which requires States Parties to extend nationality to children born on die State's territory who receive no other nationality at birth; Many have gone to the extent that every person has the right to the nationality of the State in which he was born if he does not have the right to any other nationality and that no person should be arbitrarily deprived of his nationality. 91 Compromis ¶ 7. ----------------------------------Memorial for the Applicant----------------------------------------

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B. That the Anseians are not “Refugees” and hence can be repatriated back B.1 That Anseians are not refugees

Refugees, as defined in the Geneva Convention on the Status of Refugees, 195192 possess four elemental characteristics (i) they are outside their country of origin; (ii) they are unable or unwilling to avail themselves of the protection of that country, or to return there; (iii) such inability or unwillingness is attributable to a well founded fear of being persecuted; and (iv) the persecution feared is based on reasons of race, religion, nationality, membership of a particular social group, or political opinion93. While (i) the Anseians are outside their country of origin, and (ii) are unwilling to avail the protection of their country; the other two elements need to be satisfied further in order to establish Anseians as refugees. The drafters of the Geneva Convention have not attributed a specific meaning to the term 94

persecution, so it is to be construed in its ordinary meaning. In common parlance persecution

can be ‘the actions of persecuting or pursuing with enmity or malignity’95. In French, persecution is defined as a ‘traitement injuste et cruel infligé avec acharnement ’ (unjust and cruel treatment relentlessly imposed)96. It is the degree, that is, the quantitative and qualitative level of the violation of basic human rights which determines when the threshold of persecution is reached. 92

Convention Relating to Status of Refugees, 19 U.S.T. 6259, T.IA.S. No. 6577, 189 U.N.T.S. 137 [herein after Refugee Convention]. 93 The Refugee Convention, article 1A(2) defines refugee as follows: “ As a result of events occurring before 1951 and owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country; or who not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” 94 Vienna Convention on the Law of Treaties, May 1969, 1155 U.N.T.S. 331, [hereinafter VCLT], Article 31(1). R v. Immigration Appeal Tribunal, ex parte Jonah (UK) [1985] Immigration Appeals Reports 7, in which Nolan J held

that ‘the proper approach must be to apply to the word persecution in its ordinary meaning as found in the dictionary’. 95 CATHERINE SOANES, OXFORD E NGLISH DICTIONARY, 659. 96 Petit Robert dictionary as quoted in J EAN-YVES CARLIER , THE GENEVA R EFUGEE DEFINITION A ND THE ‘THEORY OF THE THREE SCALES’ 42 (Patrick Twomey, Francis Nicholson eds.). ----------------------------------Memorial for the Applicant----------------------------------------

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In this connection, reference is frequently made to the ‘cumulative nature’ of persecution97. Thus, the Petit Robert definition of the French term best reflects the required qualitative (unjust and cruel) and Quantitative (relentless) nature of the action to constitute persecution 98. In case of Anseians, there is no evidence to conclude that there is a ‘well- founded fear’99 of them being persecuted. The reasons which led to migration of the Anesians into Anghore were the chemical contamination of the Transeian forest and Mithali River 100 and the widespread destruction in Ratanka101. It is not the fear of being persecuted which is preventing the return of Aseians to their country of origin, but the destruction of their habitat and the humanitarian crisis. The difficulty of the Anesians in integrating into Ratanka is due to a variety of reasons, including different economic priorities for the Government, which has caused some social unrest102. This can’t be described as persecution based on race, religion, nationality, membership of a particular social group, or political opinion. For an action to constitute as persecution it should be unjust and cruel and should be pursued relentlessly103. Human rights instruments like ICESCR construe economic rights as progressive rights104, which do not create an immediate obligation on the States, but can be secured when the State’s resources allow. Clearly, human rights laws also accept economic prioritization. Hence, it cannot be said to be unjust and cruel. 97

UNHCR, Handbook, Para. 201. Vaste Beroepscommissie voor Vluchtelingen (VBC- Flemish Refuge Appeals Board in Belgium) (2 nd ch.), 17 July 1993, W 973, refusing refugee status for a Bulgarian. Quoting H ATHAWAY, THE LAW OF R EFUGEE STATUS, p. 101; the Belgian board indicated that persecution is ‘a constant or systemic violation of basic Human rights implying a serious assault on human dignity against which the state cannot or will not protect.’ 99 For the applicant to have a ‘well founded fear’ of being persecuted there must be a real risk of persecution. The US Supreme Court in the case of Immigration and Naturalization Service v. Cardoza-Fonesa, 107 S. Ct 1207 (1987) stated that “one can certainly have a well founded fear when there is more than a 50 percent chance of the 98

occurrence taking place”. 100 Compromis, ¶ 12. 101 Compromis, ¶ 13. 102 Compromis, ¶ 7. 103

Supra no. 27. “ The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able o be achieved in a short period of time.” CESCR General Comment 3, “The Nature of States’ Parties Obligations”, (Art. 2, par. 1): 14/12/1990, para 9. 104


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In absence of any action which can be termed as unjust and cruel, there is no question of relentless pursuit of such action. Thus, there is no fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion. With two of the four elements disproved, the Anseians cannot be called Refugees and hence are not entitled to refugee protection. B.2 That as they are Ratankians and not refugees, they can be repatriated back to Ratanka

As Anseians are not refugees, they can be repatriated back to their Country of Origin because states possess broad discretion in deciding on the admission and sojourn of non-citizens into its territory.105. A typical judicial pronouncement states: “ It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self preservation, to forbid the entrance of foreigners within its dominions, or to 106

admit them only in such cases and upon such conditions as it may see fit to prescribe .

” Also

the right to expel exists as customary international law 107. Hence, Anghore has the right to expel persons who are not its nationals from its territory. As a corollary of the right of States to expel foreign nationals108, customary international law109 imposes a duty on States to admit their nationals. The General Assembly’s yearly

105

DAVID A. MARTIN, THE AUTHORITY A ND R ESPONSIBILITY OF STATES (T. Alexander, Alienkoff, Vincent Chetail eds., 2003). 106 Nishimara Ekiu v. United States, 142 U.S. 651, 658 (1892). 107 Oppenheim, supra note 5 at p. 616; O’C ONNELL, I NTERNATIONAL LAW, 696-697 (1970); Plender, supra note 2 at p. 133; L.B. SOHN A ND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992); This principle as stated above has also been seconded by the Declaration on the Human Rights of Individuals who are not Nationals of the Country in which they live, adopted by the UN General Assembly in 1985, U.N.G.A. R ES. 40/114, Art. 2(1), 13 December 1985. “ Nothing in this Declaration shall be interpreted as legitimizing any alien’s illegal entry into and presence in a State, nor shall any provision be interpreted as restricting the right of any state to promulgate laws and regulation concerning the entry of aliens and the terms and conditions of their stay or to establish difference between nationals and aliens.” 108 G.S. Goodwin-Gill, Voluntary Repatriation-Legal and Policy Issues in G. LOESCHER & L. MONAHAN , EDS., R EFUGEES AND I NTERNATIONAL R ELATIONS 259 (1989), PLENDER , I NTERNATIONAL LAW A ND THE

MOVEMENT OF PERSONS BETWEEN STATES 20-1, 136-7(Oxford: Clarendon Press, 1978) at 20-1, 136-7. ----------------------------------Memorial for the Applicant----------------------------------------

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endorsement of the United Nations High Commissioner for Refugees’ (UNHCR) in 1992110 and in 2001111 also reiterated the above stand, which calls on all States to take responsibility of their nationals and accept them back. As Anseians are Ratankan nationals and Anghore has every right to expel them from its territory, it is obligatory on Ratanka to accept them back. C. That Ratanka and Caristhan are obligated to pay due compensation to Anghore for the cost incurred by it on the welfare of Anseians. C.1 That the Republic of Ratanka is obligated to pay compensation

According to Article 36 of the ILC Draft Articles, a State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused. As per Article 2 of the UN Draft Articles of State Responsibility, an international wrongful act occurs when (a) conduct consisting of an action or omission is attributable to the State under international law; and (b) that conduct constitutes a breach of an international obligation of the State.112 The act of not accepting its nationals is directly attributable to Ratanka, as the Prime Minister of Ratanka dismissed Anghore’s demand to take back the Anseians. Since Anghore as a sovereign nation has the right to choose as to whom to keep in its territory, this act attributed to Ratanka has forced Anghore to keep Anesians in its territory against its will. This is a violation 109

F RANCOIS, GRANDLIJNEN VAN HET VOLKENRECHT 233 (1967); V AN PANHUYS , THE R OLE OF NATIONALITY I N I NTERNATIONAL LAW 55-56 (1959); Plender, supra note 2 at p. 133; L.B. Sohn and T. Buergenthal (eds.), supra note 35 at p. 2. 110 U.N.G.A. Res., 16 December 1992, UN Doc. No. A/RES/47/105, Para 10. The General Assembly “underlines strongly State responsibility, particularly as it relates to the countries of origin, including addressing root causes, facilitating voluntary reparation of refugees and the return, in accordance with international practice, of their nationals which are not refugees.” An identical formulation can be found in UNGA Res., 16 December 1991, UN

Doc. No. A/RES/ 46/106. 111 U.N.G.A. Res. Of 19 December 2001, UN Doc. No. A/RES/56/137, para. 10. The General Assembly “emphasizes the obligation of all states to accept the return of their nationals who have been determined not to be in need of international protection, and affirms the need for the return of persons to be undertaken in a safe and humane manner and with full respect for their human rights and dignity, irrespective of the status of the persons concerned.” 112

Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. G.A.O.R., 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), [hereinafter “ILC Draft Articles”], Article 2. ----------------------------------Memorial for the Applicant----------------------------------------

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of the sovereign rights of its neighbours to decide whom they choose to keep in their territories.113 Hence, this act of Ratanka of not accepting Anseians back is an internationally wrongful act which obligates Ratanka to pay compensation. C.2 That the Republic of Caristhan is obligated to pay compensation

Caristhan is also liable to pay compensation to Anghore as the Anseian mass influx is a direct consequence of the actions taken by it. It has been proved in argument I that Caristhan and Ratanka are jointly responsible for the transboundary harm caused to Anghore. IV. That Caristhan has violated its comity obligations under international law

The word “Comity” may be defined as that reciprocal courtesy which one member of the family of nations owes to the others. It presupposes friendship and the prevalence of equity and justice”114. Many scholars and courts have variedly characterized ‘comity’ as a rule of public international law,115 a moral obligation,116 expediency117, courtesy,118 reciprocity119, or utility.120

113

G.J.L. Coles, State responsibility in Relation to the Refugee Problem, with Particular Reference to the State with Particular Reference to the State of Origin, Geneva, 1993, p. 146; J. I. Garvey, Toward a reformulation of International Refugee Law, 26 HARV. I L.J. 483 (1985), 494; R. Hofmann, Refugee Generating Policies and the law of State Responsibility, 45 ZAÖRV 694 (1976), 700; L.T. Lee, the Right to Compensation: Refugees and countries of Asylum, 80 AJIL 532 (1986), 535-554. 114 Russian Republic v. Cibrario, 235 N. Y. 255. as quoted in COMITY, 12 Va. L. Rev. 353 1925-19262, 359. 115 See, e.g., Letter from Elihu Root, Secretary of State, to Victor H. Metcalf, Secretary of Commerce and Labor (Mar. 16, 1906), in 288 DOMESTIC LETTERS OF THE DEPARTMENT OF STATE (describing comity as a rule of public international law), cited in 4 G REEN H. H ACKWORTH, D IGEST OF I NTERNATIONAL LAW 460 (1942). But see Harold Maier, Extraterritorial Jurisdiction at a Crossroads: An Intersection Between Public and Private International Law, 76 A M. J. I NT’L. L. 280, 281 (1982) (“The doctrine of comity is not a rule of public international law, but the term characterizes many of the same functional elements that define a system of international legal order.”) 116 See, e.g., IAN BROWNLIE, PRINCIPLES OF PUBLIC I NTERNATIONAL LAW 31 (3d ed. 1979); J OSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS § 33 (1834). ARTHUR A. ALEXANDER, FOREIGN JUDGMENTS— ENFORCEMENTS OF— UNDER THE COMITY OF NATIONS, 17 Geo. L. J. 221 1928-19292 117 Somportex, Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir. 1971). 118 RANCIS WHARTON, A TREATISE ON THE CONFLICT OF LAWS 5 (2d ed. 1881). 119 Hilton v. Guyot, 159 U.S. 113, 163–64 (1895); Hans Smit, International Res Judicata and Collateral Estoppel, 9 UCLA L. R EV. 44, 53 (1962). 120 B EALE, supra note 3, § 71; H ENRY WHEATON, E LEMENTS OF I NTERNATIONAL LAW § 79 (Richard Henry Dana, Jr. ed., 8th ed. 1866) (“There is no obligation, recognized by legislators, public authorities, and publicists, to regard foreign laws; but their application is admitted, only from considerations of utility and the mutual convenience of States . . . .”). ----------------------------------Memorial for the Applicant----------------------------------------

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Thus, the word “comity” has had numerous interpretations but the basic principle underlining its existence is international cooperation.121 Collins J. noted, "comity is a chameleon word"122. Just as the chameleon's colour changes to match its environment, so too the varying interpretations of comity establish its requirements depending on the environment it operates in. 123 Caristhan didn’t offer assistance to Anghore to counter the effects of the chemical spill. It was obvious that Caristhan had provided technical assistance to Monron Factory as with the speed within which they were able to develop a chemical to break down the spill could only have meant that they had access to information from Monron Factory. But inspite of the fact that they had the information and could have helped Anghore in containing the effects of the spill, they did not provide any assistance to Angore. Thus, Caristhan has not complied with its international comity obligations by not rendering cooperation to Anghore.

121

L. Collins, Foreign Relations and the Judiciary (2002), 51 I.C.L.Q. 485, p. 504. This point is explored in greater detail in Lawrence Collins, "Comity in Modern Private International Law" in James Fawcett, ed., Reform and Development of Private International Law: Essays in Honour of Sir Peter North (Oxford, Oxford University Press, 2002). 122 Ibid. 123 Janet Walker , Foreign Public Law And The Colour Of Comity: What's The Difference Between Friends?, 38 Can. Bus. L.J. 36 2003, 48. ----------------------------------Memorial for the Applicant----------------------------------------

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