Team Code:

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

CASE CONCERNING THE DISPUTES REGARDING THE PROTECTION OF RIVER DOLPHIN AND
DIPLOMATIC IMMUNITY

UNION OF ARESSIA
APPLICANT
v.
REPUBLIC OF BORESSIA
RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

Index of Authorities....................................................................................................................i
Statement of Jurisdiction...........................................................................................................vi
Statement of Facts....................................................................................................................vii
Statement of Issues....................................................................................................................ix
Summary of Arguments.............................................................................................................x
Arguments Advanced.................................................................................................................1
I INTRODUCTION

OF

GM PINK BIBO

IS A STEP TOWARDS PROTECTION AND

PRESERVATION OF THAT SPECIES......................................................1

A. Boressia has acted in conformity with the CBD...........................................................1

A.1 Introduction of the GM Pink Bibo is the most suitable method of in-situ
conservation and it has increased biodiversity...............................................................1
B. Boressia has complied with its customary international law obligation of not causing
transboundary harm............................................................................................................1
C. Boressia has abided by the general principle of equity.................................................2
D. In any event, the introduction of the GM Pink Bibo was an act of necessity...............3
II. THE

CHANGE IN GENETIC MAKE-UP IN

ARESSIAN

PINK BIBO

OF

RIVER BHARGAVI

IN

REGION IS A NATURAL PROCESS..........................................4

A. The new Pink Bibo has naturally evolved because of hybridisation in the Pink Bibo
species................................................................................................................................4
B. The damage to the fish wealth cannot be attributed to the introduction of Pink Bibo. .4
B.1 In any event, the consequences are due to natural causes.......................................5
C. Boressias compliance of obligations imposed by the Tripartite Agreement cannot be
assessed by subsequent conventions..................................................................................6
III. THE

NUMBER OF

PINK BIBO

OF

RIVER BHARGAVI

IN

BORESSIAN

REGION

HAS INCREASED AND HENCE THE LIFTING OF ALL BANS IS JUSTIFIED...........6

A. The fulfilment of the object will terminate the Tripartite-agreement............................6

A.1 The purpose of the treaty is to impose separate obligations upon each riparian
state to take measures to conserve its own Pink Bibo species.......................................6

~MEMORIAL for

THE

RESPONDENTS~

B. The fundamental change in the population of the Pink Bibo justifies the lifting of all
bans....................................................................................................................................8
IV. THE

DESTRUCTION OF MANGROVE FOREST WILL ADVERSELY AFFECT THE

HABITAT OF

PINK BIBO

AND HENCE IS A VIOLATION OF INTERNATIONAL

ENVIRONMENTAL LAW AND GENERAL PRINCIPLES OF INTERNATIONAL LAW.. . .8

A. The destruction of the mangrove forest contravenes international environmental law 8

A.1 Aressia, by engaging in the destruction of the Mangrove forests, is not making
sustainable use of resources.........................................................................................8
A.2 Aressias right of permanent sovereignty over its natural resources is restricted by
the duty not to cause harm to the environment and other states....................................9
A.2.1 Destruction of the Mangrove forests causes harm to the environment............9
A.2.2 Destruction of Mangrove forests causes harm to Boressia..............................9
A.3 Aressia breached its due diligence obligations by initiating the natural gas
extraction project without an EIA................................................................................10
A.3.1 Aressia had an obligation to exercise due diligence.......................................10
A.3.2 Aressia breached its obligation to exercise due diligence by not conducting an
EIA...........................................................................................................................11
A.4 Aressia breached its obligations under the UNESCO World Heritage Convention
......................................................................................................................................11
B. Aressia contravened customary international law by making inequitable usage of the
natural resources of River Bhargavi.................................................................................12
C. The destruction of the mangrove forest contravenes general principle of sustainable
development.....................................................................................................................12
D. Aressia is responsible for its wrongful acts as per ARSIWA......................................13
D.1 Activities of Alliance can be attributed to Aressia since it directed them within the
meaning of Art. 8..........................................................................................................13
D.2 In any case, Aressia acknowledged and adopted the conduct of Alliance within
the meaning of Art.11...................................................................................................13

~MEMORIAL for

THE

RESPONDENT~

V THE AMBASSADOR

IS ENTITLED TO GET DIPLOMATIC IMMUNITY AND HENCE

THE SAID PROCEEDINGS ARE A VIOLATION OF INTERNATIONAL LAW...........14

A. Contempt proceedings initiated against the Boressian Ambassador are a violation of

Art. 31 of VCDR..............................................................................................................14
A.1 The Contempt Proceedings are outside the purview of a counterclaim................14
A.2. Diplomats enjoy absolute immunity in criminal proceedings..............................15
A.2.1 That mere filing of affidavit does not amount to waiver of diplomatic
immunity..................................................................................................................15
A.2.3 In arguendo, even if the filing of affidavit amounts to waiver, the Boressian
Ambassador cannot autonomously waive diplomatic immunity..............................16
A.3 VCDR overrides the provisions of the Aressian domestic law.............................16
B. Aressia has violated Art.29 of VCDR..........................................................................17
B.1 The detention of the Boressian Ambassador is a constraining act of authority. 17
Conclusion and Prayer.............................................................................................................xv

~MEMORIAL for

THE

RESPONDENT~

INDEX OF AUTHORITIES
CONVENTIONS/ DRAFT ARTTICLES/ PROTOCOLS/ DECLARATIONS
Cartagena Protocol on Biosafety to the Convention on Biological Diversity (11th September,
2003)......................................................................................................................................2
Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, 2001, in REPORT OF THE I.L.C. IN ITS 53RD SESSION, (2001)..................14
Convention for the Protection of Marine Environment of the North East Atlantic (Paris,
entered into force Sept. 22, 1992) 32 I.L.M. 122 8..............................................................13
CONVENTION ON BIOLOGICAL DIVERSITY (June 5, 1992).........................................................1
Convention on Civil Liability for Damage Resulting from Activities Dangerous to the
Environment (Lugano, entered into force June 21, 1993) 32 I.L.M. 480............................13
CONVENTION ON THE CONSERVATION OF MIGRATORY SPECIES, RESOLUTION 7.5 1651 UNTS
333; 19 ILM 15 (Bonn, 1980)..............................................................................................11
Convention on the Protection and Use of Transboundary Watercourses and International
Lakes (Helsinki, entered into force March 17, 1992) 31 I.L.M. 1312.................................13
Global Strategy for Addressing the Problem of Invasive Alien Species, Global Invasive
Species Programme................................................................................................................1
ILC, Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N. Doc.
A/56/10 (2001).......................................................................................................................5
ILC, Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N.
Doc.A/56/10 (2001),............................................................................................................14
International Convention on Civil and Political Right, entered into force March 23, 1976,
art.1(2), 999 U.N.T.S. 171....................................................................................................17
IUCN Guidelines for the Prevention of Biodiversity loss caused by Alien Invasive Species, 4
& 5 (Gland Switzerland, February 2000)...............................................................................1
Rio Declaration on Environment and Development, Principle 2, UN Doc. A/CONF. 151/26
(1992).....................................................................................................................................3
Stockholm Declaration on the Human Environment, Principle 21, UN Doc. A/CONF.
48/14/Rev.1 (1973).................................................................................................................3
United Nations Legislative Series, Materials on the Responsibility of States for
Internationally Wrongful Acts ST/LEG/SER B/25 p. 99 (2012)...........................................8
Vienna Convention on Diplomatic Relations, Apr.18, 1961, 500 U.N.T.S..............................18
~MEMORIAL for

THE

RESPONDENT~

Vienna Convention on the Law of Treaties (23 May 1969), 1155 UNTS 331...........................9

CASE LAWS
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
ICJ Reports.....................................................................................................................17, 18
Bijay Kumar Mahanty v. Jadu Ram Chandra Sahoo (2003) 1 SCC 644.................................16
Case Concerning United States Diplomatic and Consular Staff in Tehran (US v. Iran) (1980)
ICJ 1.....................................................................................................................................15
Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),................17
Dickinson v. Del Solar [1930] 1 KB 376; 5 AD, p. 299...........................................................16
Dispute between Argentina and Chile concerning the Beagle Channel, 18 February 1977, Vol.
XXI pp.53-264 at 80 HMSO (1977);.....................................................................................7
Fayed v. Al-Tajir, [1987] 2 All ER 396....................................................................................17
Gabcikovo-Nagymaros Project case (Hungary/Slovakia) 1997 ICJ 7,......................................3
Hart v. Helinski, 78 ILR 4, at 8, Netherlands, Supreme Court (25th November 1977)............16
High Court of Judicature at Allahabad through its Registrar v. Raj Kishore & ors. (1997) 3
SCC 11.................................................................................................................................16
Iron Rhine Arbitration (Belgium/Netherlands) ICGJ 373 (PCA, 24th May, 2005).....................2
Lake Lanoux Arbitration (France v. Spain) (1957) 24 ILR 101..............................................13
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 226 (1996)........2
Military and military Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986................................................................14
Murray & Co. v. Ashok Kr. Newatia & anr. AIR 2000 SC 833................................................16
Propend Finance Pty Ltd and Others v. Sing & Ors 111 ILR 611, p. 641-442 (Laws, J)........17
Public Prosecutor v. Orhan Olmez 87 ILR, p. 212..................................................................17
Pulp Mills in the River Uruguay Case (Arg. v. Uru.), 2010 I.C.J..............................................2
Russian Fur Seals controversy, British and Foreign State Papers, 18931894 (London, HM
Stationery Office, 1899), vol. 86,...........................................................................................4
Territorial Jurisdiction of the International Commission on the River Oder (1929) PCIJ
(Series A) No 23...................................................................................................................13
The Geneva Arbitration (the Alabama case), in Moore, History and Digest.........................6
The Iranian Hostages case, ICJ Reports, 1980 61 ILR...........................................................16
Trail Smelter Arbitral Decision (U.S. v. Can.), 3 R.I.A.A. 1965 (1938/1941)..........................2
~MEMORIAL for THE RESPONDENT~
2

Tribunal Correctionnel de Paris, 16 January 2008, n8 99-34-895010; International Oil

Pollution Compensation Funds, Incidents Involving IOPC Funds,.....................................12
United States Circuit Court of Appeals, Second Circuit, Banco de Espana v. Federal Reserve
Bank of New York 114 F.2d 438 (1940), at pp. 444-445......................................................17
United States-German Mixed Claims Commission, Administrative Decision No. II, UNRIAA,
vol. VII (Sales No. 1956.V.5),................................................................................................5
Zafiro case, UNRIAA, vol. VI (Sales No. 1955. V.3)................................................................5

JOURNAL ARTICLES
Amaral AR, Lovewell G, Coelho MM, Amato G, Rosenbaum HC, Hybrid Speciation in a
Marine Mammal: The Clymene Dolphin (Stenella clymene). PLOS ONE 9(1): (2014)........5
Baskett ML, Gomulkiewicz R, Introgressive hybridization as a mechanism for species rescue,
THEOR ECOL 4: 223239 (2011)............................................................................................5
Buerkle CA, Morris RJ, Asmussen MA, Rieseberg LH, The likelihood of homoploid hybrid
speciation, 84 HEREDITY 441451 (2000).............................................................................5
Hyndes, G. A. et al., Mechanisms and ecological role of carbon transfer within coastal
seascapes, BIOL. REV...........................................................................................................10
Lee, S. Y. et al., Ecological role and services of tropical mangrove ecosystems: a
reassessment, GLOB. ECOL...................................................................................................10
Manson, F. J., Loneragan, N. R., Harch, B. D., Skilleter, G. A. & Williams, L., A broad-scale
analysis of links between coastal fisheries production and mangrove extent: A case-study
for northeastern Australia, FISH. RES. 74, 6985 (2005)....................................................10
Mumby, P. J. et al., Mangroves enhance the biomass of coral reef fish communities in the
Caribbean, NATURE 427, 5336 (2004)...............................................................................10
V. P. Richards, T. W. Greig, P. A. Fair, S. D. McCulloch, C. Politz, A. Natoli, C. A. Driscoll,
A. R. Hoelzel, V. David, G. D. Bossart, J. V. Lopez, Patterns of Population Structure for
Inshore Bottlenose Dolphins along the Eastern United States, 104 (6) J. HEREDITY (2013)
765..........................................................................................................................................4

LIST OF BOOKS REFERRED

BERGKAMP, LIABILITY AND ENVIRONMENT 165 (2001)..........................................................16
BEYERLIN & MARAUHN, INTERNATIONAL ENVIRONMENTAL LAW 40 (2011).....................3
~MEMORIAL for

THE

RESPONDENT~

BIRNIE & BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 111 (2ND ED., 2002);...........3
BYERS, ABUSE

OF

RIGHTS: AN OLD PRINCIPLE, A NEW AGE (2002)...............................5

CARTAGENA PROTOCOL ON BIOSAFETY TO THE CONVENTION ON BIOLOGICAL DIVERSITY

(11TH SEPTEMBER, 2003).........................................................................................................2
CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES ON STATE RESPONSIBILITY:
INTRODUCTION, TEXT AND COMMENTARIES 880 (2002).....................................................14
ELLIOUKA, INTERNATIONAL ENVIRONEMNTAL LAW 87 (2006)...............................................17
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 19 (7TH ED., 2008)....................9
IAN BROWNLIE, SYSTEM

OF THE

LAW

OF

NATIONS: STATE RESPONSIBILITY 132166

(OXFORD: CLARENDON PRESS, 1983)............................................................................13

I. ROBERTS (ED.), SATOWS DIPLOMATIC PRACTICE, 6TH EDITION (OXFORD UNIVERSITY
PRESS, OXFORD, 2009), MN 9.26........................................................................................22
JAMES MALLET, HYBRID SPECIATION, 446 NATURE 279283 (2007).........................................7
JOHNSON, W. E. ET AL., GENETIC RESTORATION OF THE FLORIDA PANTHER, 329 SCIENCE
16411645 (2010)..................................................................................................................7
MA, ECOSYSTEMS AND HUMAN WELL-BEING: CURRENT STATE AND TRENDS, 1 MILLENNIUM
ECOSYSTEM ASSESSMENT. ISLAND PRESS, (2006, WASHINGTON).........................................1
MAURIZIO RAGAZZI, THE CONCEPT OF INTERNATIONAL OBLIGATIONS ERGA
OMNES 203 (1997).............................................................................................................17
OPPENHEIM, OPPENHEIMS INTERNATIONAL LAW 345 (LAUTERPACHT

ED,

8TH

ED,

1955

................................................................................................................................................5
PETER MALANCZUK, AKEHURSTS MODERN INTRODUCTION TO INTERNATIONAL LAW 144-5
(7TH ED., 1997)......................................................................................................................13
Rene Lefeber, Transboundary Environemntal Interference and Origins of State Liability 60,
in 24 DEVELOPMENTS IN INTERNATIONAL LAW (1996.........................................................13
SEE MCNAIR, LAW OF TREATIES 5, 124, 749-52 (1961)............................................................9
WATHERN (ED.), EIA: THEORY AND PRACTICE (LONDON, 1988); GLASSON, THERIVEL,
CHADWICK, INTRODUCTION TO EIA (LONDON, 1994).........................................................19
WOOD, EIA: A COMPARATIVE REVIEW (HARLOW, 1995)........................................................19

RESOLUTIONS/NOTIFICAITONS/ LEEGISLATIONS
Conference Resolution 9.24, Convention on International Trade in Endangered Species of
Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243......................................................12
~MEMORIAL for THE RESPONDENT~
4

Draft notification on Environmental Clearance, under sub-rule (3) of Rule 5 of the

Environment (Protection) Rules, 1986, Ministry of Environment and Forests (New Delhi,
September 14th 2006)............................................................................................................16
G.A. Res. 17/1803, U.N. GAOR, 17th Sess., at 15, U.N. Doc. A/RES/17/5217 (1962).........20
Kenya Privileges and Immunities Act, 1970...........................................................................22
Pakistan Diplomatic and Consular Privileges Act, 1972.........................................................22
Security Council resolution 687 (1991) of 3 April 1991............................................................8
UN Doc. A/CONF.48/14/Rev. 1, at 64-6. UNGA Res. 2996 (XXVII) (1972)...........................4
United Kingdom Diplomatic Privileges Act, 1964..................................................................22

~MEMORIAL for

THE

RESPONDENT~

STATEMENT OF JURISDICTION
Pursuant to the Joint Notification and the compromis concluded on 26th November 2015,
agreed to therein, between the Union of Aressia and the Republic of Boressia (collectively,
the parties), and in accordance with Article 40(1) of the ICJ statute, the Parties hereby
submit to this Court the dispute regarding the protection of river dolphin and diplomatic
immunity. In accordance with Article 36(1) of the ICJ statute, each party will accept the
judgment of the court as final and binding.

~MEMORIAL for

THE

RESPONDENT~

STATEMENT OF FACTS
River Bhargavi and Pink Bibo
River Bhargavi is a transboundary river that originates from Boranda, flows 2450km in
Aressia and 1000km in Boressia before emptying into the Bay of Aregal where it forms the
Borbans delta with Mangrove forests extending between Aressia and Boressia. The Pink Bibo
is a graceful and calm migratory dolphin species found in River Bhargavi and it travels long
distances frequently visiting the Aressian and Boressian regions. The Pink Bibo is a major
tourist attraction in Aressia and the local people use its oil in medicines and consider the
stuffed calves as a lucky charm.
Tripartite-agreement on the protection of Pink Bibo
In 1993, it was found that the number of Pink Bibo in River Bhargavi was reducing
drastically and subsequently the Aressian Prime minister initiated a joint meeting with his
Borandan and Boressian counterparts. The three riparian states adopted a tripartiteagreement on the protection of Pink Bibo wherein all the parties agreed to ban the hunting,
killing, trade and smuggling of Pink Bibo apart from regulating boating and fishing activities
in River Bhargavi. The Pink Bibo species was also included in Appendix I of the CITES.
Development of the GM Pink Bibo
In 1995, to fulfil its treaty obligations towards the protection of Pink Bibo species, Boressia
granted permission to its Bioethics committee to develop a superior variety of Pink Bibo. By
causing some genetic changes in the natural Pink Bibo, the scientists developed a GM Pink
Bibo that was highly resistant to toxic industrial effluents and it had a high metabolism rate
for chemicals apart from being able to survive in polluted waters. The GM Pink Bibo calves
were introduced into River Bhargavi in 1997.
Boressias fulfilment of its treaty obligations
The introduction of the GM Pink Bibo helped achieve the aim of the tripartite-treaty. In 2014,
it was discovered that the number of Pink Bibo species in Boressian region of River Bhargavi
had increased tremendously. Subsequent to this discovery, Boressia lifted all ban on the
hunting, killing and trade of Pink Bibo since it treaty obligations came to an end upon the
increase in number of the Pink Bibo in the Boressian region. The Pink Bibo of the Boressian
~MEMORIAL for

THE

RESPONDENT~

region was also removed from Appendix I of CITES, releasing Boressia of its obligations to
restrict commercial activities involving the Pink Bibo in the Boressian region.
Natural gas extraction project [NGE]
Aressia granted permission to Alliance Pvt. Ltd. [Alliance] to lay pipelines in a 1000km
stretch of River Bhargavi and during the installation process, a large extent of the mangrove
forests in Borbans were destroyed including some portions, which were declared as
UNESCO World Heritage site. Scientists warned of an impending doom for the Pink Bibo
and Environmental Protection Groups [EPGs] protested against this venture. Aressia
refused to stop this disastrous activity and rejected a personal request from the Boressian
President.
Boressian scientific expedition
In March 2014, three Boressian scientists were conducting some studies on the migratory
Pink Bibo species. They were researching on the medicinal properties of the natural and GM
Pink Bibo and they were collecting data in the Aressian region. Claiming that they had
flouted some regional laws that require certain permissions, Aressia awarded them a threeyear jail term one year after their arrest.
Unlawful detention and ill-treatment of the Boressian Ambassador
In May 2015, there was an important conference being organised in Boressia and the
presence of the three scientists was required. Accordingly, the Boressian ambassador
procured parole for them to attend the conference. Upon reaching Boressia, they were
awarded protection by the Boressian Government, which is under no obligation to return
them to Aressia since they are innocent under Boressian laws and there is no extradition
treaty subsisting between the two countries. Disregarding this fact, Aressia initiated legal
proceedings against the Boressian ambassador and violated his diplomatic immunity. Further,
the Aressian Supreme Court, ordered that his passport be confiscated and that he be detained.

~MEMORIAL for

THE

RESPONDENT~

STATEMENT OF ISSUES
1. Whether the introduction of the Genetically Modified Pink Bibo protect and preserve the
species of Pink Bibo.
2. Whether the alteration in genetic make-up of Pink Bibo in River Bhargavi constitute a
natural process.
3. Whether lifting of all the bans is justified when there is an increase in the number of Pink
Bibo of River Bhargavi in Boressian region.
4. Whether the destruction of mangrove forest violate international environmental law and
the general principles relating to international law.
5. Whether the Ambassador is entitled to get diplomatic immunity and are the proceedings
initiated against him a violation of international law.

~MEMORIAL for

THE

RESPONDENT~

SUMMARY OF ARGUMENTS
1. THE INTRODUCTION OF THE GENETICALLY MODIFIED PINK BIBO PROTECT AND
PINK BIBO.
In the course of this contention, the Respondent shall humbly submit to the court that the
PRESERVE THE SPECIES OF

introduction of GM Pink is in conformity with the CBD. It shall be pleaded that it is an

efficient method of in-situ conservation visualised under Art.8. Further, it shall be argued
that the Respondent has not violated the customary principle of not causing transboundary
harm and that it has adhered to the general principle of equity.
2. THE ALTERATION IN GENETIC MAKE-UP OF PINK BIBO IN RIVER BHARGAVI
CONSTITUTES A NATURAL PROCESS.

In the course of this contention, it shall be argued that the new Pink Bibo species evolved
naturally as a result of hybridisation in the wild. Consequently, the Respondent shall
submit that the destructive activities caused by the new Pink Bibo species cannot be
attributed to the introduction of the GM Pink Bibo. Further, it shall also be pleaded that the
compliance of obligations imposed by the tripartite-agreement cannot be assessed by
subsequent conventions.
3. THE LIFTING OF ALL THE BANS IS JUSTIFIED SINCE THERE IS AN INCREASE IN THE
PINK BIBO OF RIVER BHARGAVI IN BORESSIAN REGION.
In the course of this contention, it shall be submitted that the purpose of the tripartiteNUMBER OF

agreement was to impose an obligation upon each State to take measures to conserve the
Pink Bibo species of its own region. Further, the Respondent shall plead that there has
been a fundamental change of circumstances regarding the population of the Pink Bibo of
Boressian region that justifies the lifting of all bans.
4. THE DESTRUCTION OF MANGROVE FOREST VIOLATE INTERNATIONAL ENVIRONMENTAL
LAW AND THE GENERAL PRINCIPLES RELATING TO INTERNATIONAL LAW.

In the course of this contention, it shall be pleaded that the destruction of the Mangrove
forests violated the CBD and the obligation not to cause transboundary harm. Further, it
shall be argued that the sovereign right of a State over its natural resources is restricted by
the duty not to cause environmental harm. In addition, the violation of UNESCO World
Heritage Convention and the general principle of sustainable development is also
established. Furthermore, the activities of Alliance shall be shown to be attributable to
Aressia under Arts. 8 & 11 of the ARSIWA.
~MEMORIAL for

THE

10

RESPONDENT~

5. THE AMBASSADOR IS ENTITLED TO GET DIPLOMATIC IMMUNITY AND ARE THE

PROCEEDINGS INITIATED AGAINST HIM A VIOLATION OF INTERNATIONAL LAW.

Herein, the Respondent shall submit that the contempt proceedings against the diplomat
are a violation of Art.31 of the VCDR since they are outside the purview of a
counterclaim. Further, it shall be argued that diplomats enjoy absolute immunity in
criminal proceedings and that the filing of an affidavit does not amount to a waiver of
diplomatic immunity. In arguendo, it shall be presented that the diplomat does not have the
authority to waive his diplomatic immunity. Finally, it shall be submitted that the
provisions of VCDR override the domestic laws of a State.

ARGUMENTS ADVANCED
I INTRODUCTION OF GM PINK BIBO IS A STEP TOWARDS PROTECTION AND
PRESERVATION OF THAT SPECIES.
A. BORESSIA HAS ACTED IN CONFORMITY WITH THE CBD
A.1 Introduction of the GM Pink Bibo is the most suitable method of in-situ
conservation and it has increased biodiversity
1. In-situ conservation1 is a significant environmental obligation that which involves the
conservation of a viable species by maintaining and recovering it in its natural habitat.2 By
introducing the genetically modified Pink Bibo, Boressia has enhanced the population of
the riparian Pink Bibo species and increased the local biological diversity. The GM Pink
1 Arts. 8 & 9 CONVENTION ON BIOLOGICAL DIVERSITY (June 5, 1992) 1760 UNTS 79; 31
ILM 818 (1992) [CBD]; BIRNIE & BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 577
(2nd ed., 2002) [BIRNIE & BOYLE].
2 Arts. 8 & 9, CBD.
~MEMORIAL for

THE

11

RESPONDENT~

Bibo was artificially developed to have superior abilities; it has shown better resistance to
toxic industrial effluents, the ability to metabolise chemicals more rapidly and it can
survive in a polluted environment.3 Since the official release of the superior GM Pink Bibo
into River Bhargavi in June 1997, the population of the riparian Pink Bibo has shown a
substantial increase,4 which has helped Boressia fulfil its environmental obligation to
conserve and enhance biological diversity.
B. BORESSIA HAS COMPLIED WITH ITS CUSTOMARY INTERNATIONAL LAW OBLIGATION
OF NOT CAUSING TRANSBOUNDARY HARM

2. At custom,5 states are under an obligation not to use their territory in a manner as to cause
significant harm6 to areas beyond their national jurisdiction.7 Even if the threshold of
significant extra-territorial damage is met, inobservance of due diligence obligations on
part of the accused state must be established.8 The Respondent submits that it has acted in
accordance with due diligence obligations and therefore, it is not liable for the loss of fish
Aressian wealth.

3 Compromis, 9.
4 Compromis, 12.
5 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 226 (1996)
[Nuclear Weapons]; Principle 3, CBD; Rio Declaration on Environment and Development,
Principle 2, UN Doc.A/CONF. 151/26 (1992) [Rio Declaration]; Stockholm Declaration on
the Human Environment, Principle 21, UN Doc. A/CONF. 48/14/Rev.1 (1973) [Stockholm
Declaration]; Trail Smelter Arbitral Decision (U.S. v. Can.), 3 R.I.A.A. 1965 (1938/1941)
[Trail Smelter].
6 Report of the International Law Commission, UN GAOR, 56th Sess., Supp. No. 10, at 150151, UN Doc. A/56/10 (2001) [ILC Report]; Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J.
at 4, 22 [Corfu Channel].
7 Art. 3, CBD; See also Responsibilities and obligations of States with respect to activities in
the Area, Advisory Opinion, 1 February 2011, ITLOS Reports 2011, p. 10 131; Pulp Mills in
the River Uruguay Case (Arg. v. Uru.), 2010 I.C.J 101 [Pulp mills]; See also Iron Rhine
Arbitration (Belgium/Netherlands) ICGJ 373 (PCA, 24th May, 2005) 222 [Iron Rhine
Arbitration].
8 ILC Report, 154; See also Pulp Mills, 55-56.
~MEMORIAL for THE RESPONDENT~
2

B.1. Boressia has acted in consonance with due diligence obligations

3. The obligation of conduct9 laid down by the due diligence standard is appropriate to assess
the perpetration of significant transboundary harm.10 It is for each State to determine in its
domestic legislation or in the authorization process for the project, the specific content of
the Environmental Impact Assessment11 required and the EIA could be a part of the
authorisation process itself.12 The Boressian Bio ethics committee has the discretion to
decide the appropriate environmental clearance required before granting permission and
there is no legal requirement to publish the decisions or the results13 as per the national EIA
process,14 which mandates an EIA only for industrial ventures.15
4. The Respondent contends that the Boressian scientists sought the requisite permission from
the Bio ethics committee before embarking upon their research activities. They conducted
extensive studies for two years before the official release of GM Pink Bibo into River
Bhargavi and they were not required to publish the results of their findings under the
national environmental laws. Their activities are therefore in consonance with the due
diligence obligations prescribed by their national authorities.
C. BORESSIA HAS ABIDED BY THE GENERAL PRINCIPLE OF EQUITY
5. In addition to the above submissions, Boressia submits that it has not breached the equity
rule. Where potential uses of riparian resources conflict, no priority can be assumed on the
9 Report of the International Law Commission, UN GAOR, 49th Sess., Supp. No. 10, at 195,
237, UN Doc. A/49/10 (1994); See also Report of the 46th Meeting of the International Law
Commission, 2 May 22 July, 1994, A/49/10 (ILC Report) pp. 237.
10 MALCOLM N. SHAW, INTERNATIONAL LAW 855 (6th ed., Cambridge U. Press 2008); Pulp
Mills Case, 2010 I.C.J. at 55-56.
11 [EIA].
12 Pulp mills 203 & 207.
13 Rafique Ahammed PhD & Nick Harvey, Evaluation of environmental impact assessment
procedures and practice in Bangladesh, 22 IMPACT ASSESSMENT & PROJECT APPRAISAL 6378, at 75 (1st ed., 2004); Schroll Henning, Bangladesh and the environment in Impact
Assessment, vol. 13, pp. 317325 (3rd ed., 1995).
14 See Bangladesh Environment Conservation Rules,1997.
15 Clause 12, Bangladesh Environment Conservation Act, 1995 (Act No. 1 of 1995).
~MEMORIAL for THE RESPONDENT~
3

basis of prior established usage.16 Even assuming but not conceding that the introduction of
the GM Pink Bibo cost Aressia the loss of usage of its fish wealth, Boressia has not made
inequitable usage of the natural resources of River Bhargavi since there is no automatic
preference for any use of a riparian resource,17 not even fishing.18
D. IN ANY EVENT, THE INTRODUCTION OF THE GM PINK BIBO WAS AN ACT OF
NECESSITY

6. The Respondent respectfully contends that, in case the introduction of GM Pink Bibo is
found to be wrong in law, it was an act of necessity. At custom, necessity is a ground
recognised to preclude the wrongfulness of an act not in conformity with an international
obligation.19 The basic conditions to be satisfied are that an essential interest of a state
which includes the natural environment-20 must be threatened by grave an imminent
peril21 and the impugned act must have been the only means to safeguard that interest.22
7. The Respondent submits that it had an essential interest in protecting the vulnerable Pink
Bibo species, which was under an imminent threat. The Pink Bibo species was affected by
the increasing pollution in River Bhargavi and its population was rapidly dwindling.23
16 BIRNIE & BOYLE, 310; See also Art.10, Convention on the Law of the Non-navigational
Uses of International Watercourses (1997) adopted by the General Assembly of the United
Nations on 21 May 1997 and entered into force on 17 August 2014. See GAR 51/229, annex,
GAOR, 51st Session, Supplement No. 49 (A/51/49). .
17 Ibid. See also Art. VI, Helsinki Rules on the Uses of the Waters of International Rivers,
adopted by the ILA at the 52nd conference (Helsinki, August 1966).
18 BIRNIE & BOYLE, 310.
19 Gabcikovo-Nagymaros Project case (Hungary/Slovakia) 1997 ICJ 7, at 40 [GabcikovoNagymaros].
20 Russian Fur Seals controversy, British and Foreign State Papers, 18931894 (London,
HM Stationery Office, 1899), vol. 86, p. 220 [Russian fur seals]; and see also Force
majeure and fortuitous event as circumstances precluding wrongfulness: survey of State
practice, international judicial decisions and doctrine, study prepared by the Secretariat
(Yearbook 1978, vol. II (Part One), p. 61, document A/CN.4/315), . 155.
21 Art. 25, ILC ASR.
22 Gabckovo-Nagymaros Project, pp. 40 41, 5152.
23 Compromis.
~MEMORIAL for

THE

RESPONDENT~

Boressia took immediate efforts, pursuant to the tripartite-agreement to develop a genetic

variant of the Pink Bibo species that would be able to survive in the most polluted waters
apart from being able to metabolise chemicals faster while showing higher resistance to
toxic industrial effluents. This method was the only timely recourse available to Boressia to
effectively engage in in-situ conservation of the Pink Bibo and it was absolutely
necessitated24 by the circumstances.

II. THE CHANGE IN GENETIC MAKE-UP IN PINK BIBO OF RIVER BHARGAVI

IN ARESSIAN REGION IS A NATURAL PROCESS

A. THE NEW PINK BIBO HAS NATURALLY EVOLVED BECAUSE OF HYBRIDISATION IN THE
PINK BIBO SPECIES
8. The Respondent contends that hybridization is a natural process25 that may result in the
exchange of genetic material between divergent lineages and the formation of new taxa and
that it has been shown to increase the genetic diversity of populations providing them with
a higher adaptability to environmental change.26 Further, such a situation is a natural
occurrence in hybridisation in the wild27 as seen in the cases of Clymene dolphins28 and the
bottlenose dolphins.29
24 Russian fur seals 1893.
25 V. P. Richards, T. W. Greig, P. A. Fair, S. D. McCulloch, C. Politz, A. Natoli, C. A.
Driscoll, A. R. Hoelzel, V. David, G. D. Bossart, J. V. Lopez, Patterns of Population
Structure for Inshore Bottlenose Dolphins along the Eastern United States, 104 (6) J.
HEREDITY (2013) 765.
26 Buerkle CA, Morris RJ, Asmussen MA, Rieseberg LH, The likelihood of homoploid
hybrid speciation, 84 HEREDITY 441451 (2000).
27 Baskett ML, Gomulkiewicz R, Introgressive hybridization as a mechanism for species
rescue, THEOR ECOL 4: 223239 (2011).
28 Amaral AR, Lovewell G, Coelho MM, Amato G, Rosenbaum HC, Hybrid Speciation in a
Marine Mammal: The Clymene Dolphin (Stenella clymene). PLOS ONE 9(1): (2014).
29 Arts. 8 & 9, CBD; BIRIE & BOYLE 577.
~MEMORIAL for

THE

RESPONDENT~

9. Upon interbreeding, hybridisation has occurred between the natural and the GM Pink Bibo
and a progeny with an altered genetic make-up has evolved. This process led to increased
biodiversity through the formation of a new Pink Bibo, in a process called speciation. The
new Pink Bibo has characteristics very different from the two other related species.
Therefore, it is submitted that the new Pink Bibo has a different genetic composition unlike
the parent Pink Bibos and that such an occurrence is an act of nature due to the process of
hybridisation.
B. THE DAMAGE TO THE FISH WEALTH CANNOT BE ATTRIBUTED TO THE INTRODUCTION
OF

PINK BIBO

10. In Trail Smelter, certain damage claims were rejected owing to lack of proof of causation
of injury30 meaning that the losses could not be attributed to the wrongful act as a
proximate cause.31 Similarly, the damages sought by Aressia are liable to be dismissed on
account of lack of causal process to substantiate the legal claims. The economy of Aressia
has been declining for the past two decades owing to a slump in agriculture due to erratic
rainfall. Therefore, the introduction of the GM Pink Bibo was not the sole operative32
factor leading to the poor economy of Aressia.
11. Indirect claims do not constitute a good foundation for damages33 and indemnity cannot
be awarded when damage is remote and uncertain.34 The Tribunal rejected the claim for the
severe negative effects of the fumes upon the reproduction activity of growing timber.35 In
a similar tenor, Boressia submits that there exists no direct or proximate link between the
introduction of the GM Pink Bibo and the loss of fish wealth to Aressia. The GM Pink
Bibo was introduced in 1997 as a means to protect and preserve the threatened Pink Bibo
species. Due to reproductive activities through interbreeding and hybridisation, the native
30 Trail Smelter, 206.
31 See United States-German Mixed Claims Commission, Administrative Decision No. II,
UNRIAA, vol. VII (Sales No. 1956.V.5), p. 23, at p. 30 (1923).
32 Zafiro case, UNRIAA, vol. VI (Sales No. 1955. V.3), pp. 164-5 (1925).
33 The Geneva Arbitration (the Alabama case), in Moore, History and Digest, vol. IV, p.
4144, at pp. 4156 and 4157 (1872).
34 Trail Smelter, s. 204 & 206.
35 Ibid.
~MEMORIAL for

THE

RESPONDENT~

species developed different characteristics there were established in the new Pink Bibo
species. These genetic and reproductive consequences are far removed from the alleged
wrongful conduct of Boressia since hybridisation and speciation are natural events.
B.1 In any event, the consequences are due to natural causes
12. It is necessary to exclude losses unconnected with the initial act save by unexpected
concatenation of exceptional circumstances which could only have occurred with the help
of causes which are independent of the author of the act and which he could have in no
way foreseen.36 Assuming but not conceding that sufficient causative link could be
established between the introduction of the GM Pink Bibo and the damage to the fish
resources of Aressia, Boressia cannot be held liable for acts that are beyond its control. The
expression of the fighting tendencies in the new Pink Bibo species was an act of nature that
is unconnected to the aim of the introduction. Boressia could not have foreseen such
independent occurrences not could it have forestalled them.
C. BORESSIAS COMPLIANCE OF OBLIGATIONS IMPOSED BY THE TRIPARTITE AGREEMENT
CANNOT BE ASSESSED BY SUBSEQUENT CONVENTIONS.

13. Art.28 of the VCLT states that provisions of a treaty do not apply to acts, which take
place before the entry into force of the treaty with respect to that party.37 Further, Art.4(1)
of the CBD provides that the Cartagena Protocol will not affect any party which exercises
its obligations under a pre-existing international agreement unless it is proved that the
carrying out of such obligation would seriously threaten the environment.38 The burden
of proving the possibility of serious harm lies on the party that alleges it.39
14. The Respondent pleads that that no liability can be attached to it for violation of those
Conventions to which it became bound after the adoption of the Tripartite Agreement.
Boressia, Boranda and Aressia entered into an agreement for the protection of the Pink
Bibo species in 199340 and since then Boressia was obligated to protect the Pink Bibo
36 Angola case (1928-30), in Life Insurance Claims 1031 (1924).
37 Art.28, VIENNA CONVENTION ON THE LAW OF TREATIES (23 May 1969), 1155 UNTS 331
[VCLT].
38 Art.4(1), CBD.
39 Gabkovo-Nagymaros, 7.
40 Compromis, 7
~MEMORIAL for

THE

RESPONDENT~

species. In furtherance of the said obligation, Boressia released the GM Pink Bibo. Aressia
has failed to discharge its obligation of proving the possibility of serious harm from the
introduction of GM Pink Bibo. Therefore, Boressia cannot be held liable for any violation
of the Cartagena Protocol.

III. THE NUMBER OF PINK BIBO OF RIVER BHARGAVI IN BORESSIAN

REGION HAS INCREASED AND HENCE THE LIFTING OF ALL BANS IS
JUSTIFIED.

A. THE FULFILMENT OF THE OBJECT WILL TERMINATE THE TRIPARTITE-AGREEMENT

A.1 The purpose of the treaty is to impose separate obligations upon each riparian
state to take measures to conserve its own Pink Bibo species
15. Art.31 (1) of the VCLT provides that a treaty has to be interpreted in accordance with its
purposes and objectives41. These rules of interpretation in VCLT reflect custom42 and they
hold that the purpose of the Treaty has to be ascertained by placing reliance on the rules of
Customary Law43 as well as the circumstances of preparation44. The Respondent pleads
that the objects and aims of the Treaty require each range state to take appropriate
measures to protect the Pink Bibo population of its region.
16. The transboundary River Bhargavi is clearly demarcated into three regions based on its
course in three national jurisdictions45 and the Borbans is described as extending to both
Aressian and Boressian regions.46 Further, the tripartite-agreement also imposed a region-

41 VCLT, art. 31(1)

42 Accepted as custom in Dispute between Argentina and Chile concerning the Beagle
Channel, 18 February 1977, Vol. XXI pp.53-264 at 80 HMSO (1977); 52 ILR, p. 93.
43 VCLT, art. 31(3)(c)
44 VCLT, art. 32
45 Compromis 2.
46 Ibid.
~MEMORIAL for

THE

RESPONDENT~

specific obligation on each range state to regulate fishing and boating activities in River
Bhargavi in their territory47 to avoid injury, hurt, killing and capturing of Pink Bibo.
17. The Respondent contends that the fulfilment of the obligations created under a treatycontract- the tripartite-agreement, in the instant case- will terminate the treaty and release
the parties. Treaties contracted among a small number of parties having local applicability
are not of a law-making character48. The fulfilment of the object of a treaty for the joint
carrying out of a single enterprise will terminate the obligation.49
18. The tripartite-agreement is particular in its purpose of protection of Pink Bibo and it lays
down clear steps in that direction.50 It has no universal or general relevance51 and it is
terminable upon the fulfilment of its object of enhancing the population of the Pink Bibo
species. Boressia committed itself towards increasing the population of Pink Bibo in its
region and achieved its goal in 2014. Subsequently, it was released from the performance
of the treaty and so it lawfully lifted all prohibitions.
B. THE FUNDAMENTAL CHANGE IN THE POPULATION OF THE PINK BIBO JUSTIFIES THE
LIFTING OF ALL BANS

19. At custom,52 a fundamental change in the circumstances53 which determined the parties
to accept the treaty resulting in a radical transformation of the extent of the obligations
imposed by it may afford the party affected a ground for invoking termination54. At the
time of conclusion of the tripartite-agreement, the Pink Bibo population was reducing
drastically55 and that constituted the essential basis56 for the parties to decide to protect
the species. Due to the in-situ conservation efforts taken by Boressia, the number of Pink
47 Compromis 7.
48 See MCNAIR, LAW OF TREATIES 5, 124, 749-52 (1961).
49 Brownlie, page 19.
50 Compromis, 6.
51 VIRALLY, SOURCES 126; TUNKIN, THEORY OF INTERNATIONAL LAW, pp. 935.
52 ICJ Reports, 1973, p. 18. See also the GabcikovoNagymaros, 38.
53 Art. 62, VCLT.
54 Pulp mills, 36; Fisheries Jurisdiction case (UK v. Iceland) ICJ Rep. 1973, pp. 3, 201
[Fisheries jurisdiction].
55 Compromis 5.
~MEMORIAL for

THE

RESPONDENT~

Bibo in the Boressian region has increased tremendously,57 changing the essential basis of
its consent to be bound by the treaty. Therefore, the Respondent is entitled to invoke the
fundamental change as a ground to terminate its treaty obligations and consequently to
justify the lifting of all prohibitions.

IV. THE DESTRUCTION OF MANGROVE FOREST WILL ADVERSELY AFFECT

THE HABITAT OF PINK BIBO AND HENCE IS A VIOLATION OF
INTERNATIONAL ENVIRONMENTAL LAW AND GENERAL PRINCIPLES OF
INTERNATIONAL LAW.

A. THE DESTRUCTION OF THE MANGROVE FOREST CONTRAVENES INTERNATIONAL

ENVIRONMENTAL LAW

A.1 Aressia, by engaging in the destruction of the Mangrove forests, is not making
sustainable use of resources
20. The Respondent submits that Article 10 of the CBD obliges Aressia to incorporate the
conservation and sustainable use of biological resources58- Borbans in the present caseinto its national decision-making,59 and to adopt measures relating to the use of biological
resources in a manner to avoid or reduce adverse impacts on the environment.60 However,
in direct contravention of the same the Applicant state has engaged in activities leading to
the destruction of certain portions of Borbans engaging grossly unsustainable use of the
said resource.
A.2 Aressias right of permanent sovereignty over its natural resources is restricted by
the duty not to cause harm to the environment and other states.

56 ICJ Reports, 1997, p. 65; followed by the ECJ in Racke v. Hauptzollamt Mainz [1998]
ECR I-3655, 37057
57 Compromis 12.
58 Art. 2(c), CBD.
59 Art. 10 (a), CBD.
60 Art. 10 (b), CBD.
~MEMORIAL for

THE

10

RESPONDENT~

21. The Respondent contends that though customary international law provides States
sovereign right to exploit their resources, it is restricted by the duty not to cause
environmental harm or damage in areas outside its jurisdiction.61 Boressia submits that
Aressia is violating both these duties in the present matter.
A.2.1 Destruction of the Mangrove forests causes harm to the environment
22. Boressia pleads that the Mangrove forests form a highly productive ecosystem62 that
supports associated ecosystems63 through its high potential for storage or export of
carbon.64 Mangroves can also enhance growth and production of variety of fish species
living in nearby water ecosystems.65 Therefore, Mangrove forests form an essential aspect
in the well-being of their environment and their destruction will have adverse effects upon
the natural surroundings. The destruction of the Mangrove forests of Borbans will seriously
affect the natural habitat of the vulnerable Pink Bibo species and harm the environment.
A.2.2 Destruction of Mangrove forests causes harm to Boressia
23. Boressia pleads that states have the duty to conserve natural resources.66 The Pink Bibo, a
migratory species67 of unfavourable conservation status is a shared resource68 between
Aressia and Boressia. States have permanent sovereignty over natural resources during the
61 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons; See also
Principle 21, Stockholm Declaration.
62 Lee, S. Y. et al., Ecological role and services of tropical mangrove ecosystems: a reassessment, GLOB.
ECOL.BIOGEOGR. (2014).

63 Mumby, P. J. et al., Mangroves enhance the biomass of coral reef fish communities in the
Caribbean, NATURE 427, 5336 (2004).
64 Hyndes, G. A. et al., Mechanisms and ecological role of carbon transfer within coastal seascapes, BIOL.
REV.CAMB. PHILOS. SOC. 89, 232254 (2013).

65 Manson, F. J., Loneragan, N. R., Harch, B. D., Skilleter, G. A. & Williams, L., A broadscale analysis of links between coastal fisheries production and mangrove extent: A casestudy for northeastern Australia, FISH. RES. 74, 6985 (2005).
66 Preamble, CBD; See also UNCLOS Art. 56(i)(a).
67 Cyril de Klemm, Migratory Species in International Law, 29 NATURAL RES. J. 935, at 938
(1989).
68 Behring Sea Fur Seals arbitration, at 755
~MEMORIAL for

THE

11

RESPONDENT~

time they are within their territory; but as they also act as hosts of these species, there is
an obligation69 on them to participate in their conservation efforts and certainly not to
hamper the same.70
24. In the instant case, Boressia contends that Aressia cannot exercise its right in a manner,
which allows for conservation measures on part of Boressia to come to naught. As such,
Boressia respectfully submits that the Applicant is in violation of its Article 3 obligation,
and by extension, its CBD obligations.
A.3 Aressia breached its due diligence obligations by initiating the natural gas
extraction project without an EIA
A.3.1 Aressia had an obligation to exercise due diligence
25. In addition to the above, it is respectfully contended that the Applicants actions
allowing for unsustainable fishing practices are in contravention of the Precautionary
Principle, which was enunciated in Principle 15 of the Rio Declaration and incorporated
into UNCLOS, CBD,71 CITES72 and the CMS73. It requires that in situations, where there
exist threats of serious or irreversible damage, lack of full scientific certainty should not be
a reason for postponing cost-effective measures to prevent environmental degradation.
26. In the present matter, the destruction of the Mangrove forests poses serious threat to the
riverine ecosystem, which forms the natural habitat of the Pink Bibo species. Aressia
humbly submits that this threat ought to be considered by the Court along with the other
contentions made.
69 The Southern Bluefin Tuna] 77-79.
70 Draft Principles of Conduct in the Field of the Environment for the Guidance of States in
the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More
States, REPORT OF THE FIFTH SESSION OF THE INTERGOVERNMENTAL WORKING GROUP OF
EXPERTS ON NATURAL RESOURCES SHARED BY TWO OR MORE STATES, U.N. DOC.
UNEP/GC.6/17 (1978).
71 CBD Preambular 9; see also Cartagena Protocol on Biosafety, COP Decisions II/10 and
V/6.
72 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar.
3, 1973, 993 U.N.T.S. 243 [CITES].
73 See CMS; also see generally UN Conference on Straddling Stocks 6.
~MEMORIAL for THE RESPONDENT~
12

A.3.2 Aressia breached its obligation to exercise due diligence by not conducting an EIA
27. EIA is a procedure for evaluating the likely impact of a proposed activity on the
environment74 The CBD requires an EIA of proposed projects that are likely to have
significant adverse effects on biological diversity.75 Due diligence is not exercised if a
party planning works liable to affect the regime of the river did not undertake EIA on the
potential effects.76 Aressia was required to conduct an EIA that reflected the nature and
magnitude of the proposed development [of crude oil and natural gas extraction project]
and its likely adverse impact on the environment77 on River Bhargavi. There is no
indication in the compromis that Aressia conducted an EIA before starting the crude oil and
natural gas extraction projection on 1000km of the River Bhargavi bank. Thereby, based on
the fact that there is no mention of the conduct of an EIA, it can be concluded that Aressia
failed to observe its due diligence obligation by not carrying out a proper EIA.
A.4 Aressia breached its obligations under the UNESCO World Heritage Convention
28. In light of the ratification of UNESCO World Heritage Convention by the Aressia and
Boressia,78 the obligations under it to protect and conserve natural heritage79 are to be
respected.80 Each party is under a duty not to take any deliberate measures which might
damage directly or indirectly the natural heritage81 of the territory of other parties and such
activities amount to moral damage82
74 See generally EIA: THEORY AND PRACTICE (Wathern ed., London, 1988); GLASSON,
THERIVEL, CHADWICK, INTRODUCTION TO EIA (London, 1994).
75 Arts. 7(c) & 14 (1) (a), CBD; PHILIPPE SANDS & JACQUELINE PEEL, PRINCIPLES OF
INTERNATIONAL ENVIRONMENTAL LAW 616 (3rd ed., 2012).
76 Pulp Mills . 204.
77 Ibid.
78 Aressia ratified the UNESCO World Heritage Convention on 14/11/1977 and Boresia
acceded to it on 03/08/1983.
79 Art. 4, UNESCO Convention.
80 Justice Murphy in Commonwealth v. Tasmania (1983) 158 CLR 1
81 Art. 6 (3), UNESCO Convention.
82 See article 31(2), ASR; See also Tribunal Correctionnel de Paris, 16 January 2008, n8 9934-895010; International Oil Pollution Compensation Funds, Incidents Involving IOPC
~MEMORIAL for THE RESPONDENT~
13

29. The Respondent pleads that Aressia was required to ensure that the natural gas extraction
project did not cause any damage to the Borbans since it extended into the Boressian
region. Aressia failed in this duty and extensive damage was caused to Borbans including
some portions, which were declared as UNESCO World Heritage site thereby also causing
moral damage to Boressia.
B. ARESSIA CONTRAVENED CUSTOMARY INTERNATIONAL LAW BY MAKING INEQUITABLE
USAGE OF THE NATURAL RESOURCES OF

RIVER BHARGAVI

30. Boressia respectfully contends that Aressia has not utilised the natural resources of River
Bhargavi on an equitable basis. Equitable utilisation is a primary rule of customary law
governing the use of international watercourses83 and it limits the entitlement of states to
engage in risky activities within their territories.84 The application of this equity rule entails
a balancing of needs and uses of each state.85 Aressia has damaged a substantial portion of
the Mangrove forests of River Bhargavi basin through the installation of pipelines for the
natural gas extraction project. The destruction of the Mangrove forests has adverse
consequences for the environment and it affects the interest of Boressia.86 Aressia is
therefore in violation of the equity principle.
C. THE DESTRUCTION OF THE MANGROVE FOREST CONTRAVENES GENERAL PRINCIPLE
OF SUSTAINABLE DEVELOPMENT.

31. It is a general principle of international law embodied in the concept of sustainable

development that States need to reconcile economic development with protection of the
environment.87 The principle of sustainable development necessitates that Aressia
integrates appropriate environmental measures in the design and implementation of
Funds, 7 (2010).
83 Gabcikovo-Nagymaros, Lake Lanoux Arbitration (France v. Spain) (1957) 24 ILR 101; Territorial
Jurisdiction of the International Commission on the River Oder (1929) PCIJ (Series A) No 23.

84 BIRNIE & BOYLE, 146-147, 302-4;

85 See Art. IV, Helsinki Rules; Art. 2 (2), UNECE Convention on Transboundary
Watercourses and Lakes; See also Art.3, Instituit de Droit Internationelle, Salzburg Session,
Resolution on the Utilization of Non-maritime International Waters (1961); UN Watercourses
Convention, Art. 6.
86 Cite the arguments above.
~MEMORIAL for

THE

14

RESPONDENT~

economic development activities.88 Aressia failed to incorporate environmental protection

into its development project on River Bhargavi. Several parties like environmental
protection groups,89 Boressian President90 and renowned scientists91 warned Aressia against
its environmentally devastating actions. However, Aressia took no steps to integrate the
environmental measures into the crude oil and natural gas extraction project, which was
carried forward because of its promising economic benefits.
D. ARESSIA IS RESPONSIBLE FOR ITS WRONGFUL ACTS AS PER ARSIWA
32. The Articles of State Responsibility lays down the requirements for a state to be held
responsible for their acts in international law. The state in question must have committed a
breach of an international obligation, which amounts to an internationally wrongful act.
Further, the acts must be attributable to the state in question.92 Aressia, having breached
international environmental law and general principles has committed internationally
wrongful acts. Further, it can clearly be attributed to Aressia as the Government of Aressia
expressly granted permission to Alliance Ltd. for extraction and laying of pipe lines in
about 1000 km area of River Bhargavi Basin Region.93
D.1 Activities of Alliance can be attributed to Aressia since it directed them within the
meaning of Art. 8
33. Boressia pleads that the contentious activities of Alliance Ltd were directed by Aressia as
an essential aspect of the Natural gas extraction project sanctioned by it. To attribute the
destructive activities to Aressia, it is sufficient to establish that the operation was directed
by the state94 provided that the concerned conduct is an integral part of operation directed.95
In the present case, Aressia expressly granted permission to Alliance Ltd for its operations
87 Gabkovo-Nagymaros (Separate Opinion of Vice-President Weeramantry) 140; See
also, Principle 4, Rio Declaration.
88 Iron Rhine Arbitration 59 & 243; See also Principle 13, Stockholm Declaration.
89 Compromis 17.
90 Compromis, 19.
91 Compromis, 18.
92 Chorzow Factory, 47.
93 Compromis, 17.
94 ILC ASR commentary, Art. 8, p.48;
~MEMORIAL for

THE

15

RESPONDENT~

to lay pipelines in the 1000 km area of the River Bhargavi Basin to extract natural gas. The
cutting down of Mangrove forests is an integral part of laying pipelines.96 Therefore, by
directing the laying of pipelines for the Natural gas extraction project, Aressia has allowed
the extensive damage of mangrove forests.
D.2 In any case, Aressia acknowledged and adopted the conduct of Alliance within the
meaning of Art.11
34. Boressia submits that the two elements of acknowledgement and adoption of Alliances
conduct is satisfied in the instant case. Any uncertainty in attribution is resolved when the
state acknowledges and adopts the activities of the private entity.97 The installation of the
gas pipelines in the Borbans region devastated the Mangrove forest and incurred the wrath
of environmental protection groups and renowned scientists. Yet, the Aressian Prime
Minister chose to go forward with the project due to its promising benefits. This indicates
that he acknowledges the factual existence of the situation and endorses it.
35. Further, Boressia pleads that Aressia had implicitly adopted the conduct of Alliance by
linking it to a state objective.98 During the furore raised over the issue of destruction of
Mangrove forests by Alliance, Aressia stated that the activities were meant for the purpose
of development. From this statement made by the Aressian Prime Minister, it can be
inferred that the activities of Alliance were not meant for any private purpose but for the
state purpose. This leads to the conclusion that they have been adopted as State actions.

V THE AMBASSADOR IS ENTITLED TO GET DIPLOMATIC IMMUNITY AND

HENCE THE SAID PROCEEDINGS ARE A VIOLATION OF INTERNATIONAL
LAW
95 Art. 8, ILC ASR, p.47; See also German Settlers in Poland, 1923, P.C.I.J.,
Series B, No. 6, at p. 22.
96 Military and military Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 51, . 86.
97 ILC Commentary, Art.11, p.53; Case Concerning United States Diplomatic and Consular
Staff in Tehran (US v. Iran) (1980) ICJ 1 8, written submissions of the US (24th May, 1980)
[Tehran case].
98 Tehran case, 58 & 59.
~MEMORIAL for

THE

16

RESPONDENT~

A. CONTEMPT PROCEEDINGS INITIATED AGAINST THE BORESSIAN AMBASSADOR ARE A

VIOLATION OF ART.

31 OF VCDR

A.1 The Contempt Proceedings are outside the purview of a counterclaim.

36. Art.31 of the VCDR vests diplomats with immunity that shields them from the criminal,
civil and administrative jurisdiction of the receiving State99 and Art.32 provides that should
the diplomat institute any proceedings, he loses his immunity to the extent of any counter
claim arising out of the same proceeding.100 It is submitted that contempt proceedings are
not in the nature of a counterclaim as visualised under Art.32.
37. The usage of the terms Claim and Counter Claim in Art.32 indicates that they apply
only to civil proceedings101 whereas under Aressian Laws, the charge of filing a false
affidavit comes within the purview of the Criminal Contempt of Court102 and it is
independent of the original proceedings.103 Contempt of Court proceedings being of a
Quasi Criminal nature104 do not fall within the domain of civil proceedings and
consequently the contempt proceedings instituted against the Boressian Ambassador are
wrong in law.
A.2. Diplomats enjoy absolute immunity in criminal proceedings.
38. The Respondent pleads that Art.31 (1) of the VCDR cloaks diplomats with complete
immunity from the criminal proceedings in the receiving State irrespective of the severity
of the charge and there exists no exception to such immunity. This is now the accepted
position under customary law.105 Moreover, this stance has been affirmed in several

99 Art.31, Vienna Convention on Diplomatic Relations, Apr.18, 1961, 500 U.N.T.S. [VCDR].
100 Art.32, VCDR.
101 Hart v. Helinski, 78 ILR 4, at 8, Netherlands, Supreme Court (25th November 1977).
102 Murray & Co. v. Ashok Kr. Newatia & anr. AIR 2000 SC 833.
103 High Court of Judicature at Allahabad through its Registrar v. Raj Kishore & ors.
(1997) 3 SCC 11.
104 Bijay Kumar Mahanty v. Jadu Ram Chandra Sahoo (2003) 1 SCC 644
105 MALCOLM N. SHAW, INTERNATIONAL LAW 766 (6th ed., CUP 2008).
~MEMORIAL for THE RESPONDENT~
17

decisions.106 As already argued above, under the Aressian legal system, charges pertaining
to filing of false affidavit are criminal in nature.107 On account of the criminal proceedings,
the Ambassador is entitled to complete immunity, thus rendering the contempt proceedings
violative of international law.
A.2.1 That mere filing of affidavit does not amount to waiver of diplomatic immunity
39. The Respondent contends that the submission of an affidavit cannot be interpreted as the
waiver of diplomatic immunity. Article 32(2) of the VCDR states that the waiver of
diplomatic immunity must be express108 and the same has been affirmed by subsequent
decisions109. With respect to the specific question of whether filing of affidavit amounts to
waiver of immunity, the British110 and American Courts111 have held that mere filing of
affidavit cannot amount to waiver of diplomatic immunity. In the present fact scenario, in
the absence of any express waiver by the Boressian Ambassador, it cannot be said that
diplomatic immunity has been waived.
A.2.3 In arguendo, even if the filing of affidavit amounts to waiver, the Boressian
Ambassador cannot autonomously waive diplomatic immunity.
40. The Respondent contends that diplomatic immunity is not the personal right of the
Ambassador and can be only be waived by the State to which the Ambassador belongs
and not the Ambassador himself.112 Article 32(1) of the VCDR provides that immunity
from jurisdiction of diplomatic agents may be waived by the sending State and this
principle has been codified into customary international law.113.

106 The Iranian Hostages case, ICJ Reports, 1980 61 ILR, p. 530; see also Dickinson v. Del
Solar [1930] 1 KB 376; 5 AD, p. 299
107 Supra 91.
108 Art. 32 (2), VCDR.
109 Public Prosecutor v. Orhan Olmez 87 ILR, p. 212.
110 Propend Finance Pty Ltd and Others v. Sing and Others 111 ILR 611, p. 641-442( Laws,
J)
111 United States Circuit Court of Appeals, Second Circuit, Banco de Espana v. Federal
Reserve Bank of New York 114 F.2d 438 (1940), at pp. 444-445.
112 Fayed v. Al-Tajir, [1987] 2 All ER 396.
~MEMORIAL for

THE

18

RESPONDENT~

41. It is our submission that the ambassador cannot waive diplomatic immunity without any
prior declaration by Boressia. It can thus be stated that even if the filing of an affidavit does
in fact amount to waivement, such waivement cannot happen autonomously of any
declaration from Boressia. Consequently, the contempt proceedings initiated against the
Ambassador are in violation of international law since Boressia has not waived the
diplomatic immunity of its Ambassador.
A.3 VCDR overrides the provisions of the Aressian domestic law.
42. Aressia and Boressia by virtue of being parties to the VCDR114 are obligated to abide by
its provisions on account of the customary principle of pacta sunt servanda.115Art.27
provides that States cannot violate International Law on the ground of complying with its
municipal law.116 Aressia cannot circumvent international law by pleading compliance with
municipal law. In the present case, even if the Boressian Ambassador is guilty under
domestic law, he cannot be proceeded against as he enjoys immunity under international
law and by instituting proceedings against the Ambassador in concurrence with its
domestic laws, Aressia has violated international law by derogating the obligations laid on
it under Article 31 of VCDR.
B. ARESSIA HAS VIOLATED ART.29 OF VCDR
B.1 The detention of the Boressian Ambassador is a constraining act of authority.
43. Art.29 of VCDR provides that the most essential purpose behind according diplomatic
immunity to the agent is to protect the agent from any act which may hinder the ability of
the agent to perform his duties.117 In order to determine whether any act of the receiving
113 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports
2002, p. 3 at p. 21, para. 52; Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France),
ICJ Reports 2008, p. 177 at p. 232, para. 153

114 Aressia acceded to the VCR on 15th Oct 1965 and Boressia succeeded to it on 13th Jan
1978.
115 GabcikovoNagymaros 7, 789.
116 Art.27, VCLT.
117 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, ICJ Reports
2002 3, at 22, 54.

~MEMORIAL for

THE

19

RESPONDENT~

State hinders the performance of a diplomat, the ICJ has laid down the test of
Constraining Act of Authority.118
44. In the present scenario, an order has been issued for the confiscation of the Boressian
Ambassadors passport and also for his detention. As a diplomat cannot perform his
functions completely without the liberty of free travel, the orders imposing restrictions on
the Boressian Ambassador are in violation of Art.29 of the VCDR.

CONCLUSION AND PRAYER

For the foregoing reasons, the Union of Boressia, respectfully requests this Honourable Court
to:
1. DECLARE that the introduction of GM Pink Bibo is a step towards protection and
preservation of that species;
2. DECLARE that the change in genetic make-up in Pink Bibo of River Bhargavi in Aressian
region is a natural process;
3. DECLARE that the number of Pink Bibo of River Bhargavi in Boressian region has
increased and hence the lifting of all bans is justified;
4. DECLARE that the destruction of mangrove forest will adversely affect the habitat of
Pink
118 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), Judgment, ICJ Reports
2008, 177 at 237, 170.

~MEMORIAL for

THE

20

RESPONDENT~

Bibo and hence is a violation of international environmental law and general principles of
international law;
5. DECLARE that the Ambassador is entitled to get diplomatic immunity and hence the said
proceedings are a violation of international law.

Respectfully submitted,
____________________
Agents for Boressia

~MEMORIAL for

THE

16

RESPONDENT~