Cattle Insurance

SR05
BEFORE THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS
4TH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION –
INTERNATIONAL ROUND, 2019
BETWEEN
UNHRC AND APPLICANT NO. 2
(“APPLICANT NO. 1 AND APPLICANT NO. 2”)
V.
RESPONDENT NO. 1 AND RESPONDENT NO. 2
(“RESPONDENT NO. 1 AND RESPONDENT NO. 2”)
WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANTS

TABLE OF CONTENTS
CONTENTS PAGE. NO.
1. TABLE OF CONTENTS 2
2. INDEX OF AUTHORITIES 3-6
3. STATEMENT OF JURISDICTION 7
4. STATEMENT OF FACTS 8-15
5. ISSUES RAISED 16
6. SUMMARY OF PLEADINGS 17-18
7. PLEADINGS 19-46
1. The ICJ has jurisdiction to adjudicate upon the status and
protection of ‘displaced people’ from Petitioner No. 1
2. The people displaced owing to the development of Mega Hydro-
electricity Project-2002 are Climate Refugees.
3. The nationalization of APCL is lawful.
4. Respondent No. 1 is solely responsible for the environmental
degradation in and around the Indic-Eden Sub-Continent?
8. PRAYER 47
2
INDEX OF AUTHORITIES
CASES REFERRED
1. Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985). ……………………….29
2. Indian Council for Enviro-Legal Action v. Union of India, 1996 AIR 1446. ………..46
3. J.B. v Canada, Oct 22 1992, CCPR/C/46/D/255/1987. ………………………………21
4. Korablina v. Immigration and Naturalization Service, No. 97-70361, 158 F 3d. …..30
5. Njamba and Balikosa v. SwRespondent No. 1, No. 322/2007 (2010), CEDAW,
General Recommendation No. 32, para 23. ……………………………………….28
6. NS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). …………………………………..30
7. TOPCO v. Libya (1978) 17 ILM 1 at 59. ………………………………………….37
8. Vellore Citizens Welfare Forum v. Union of India, 1996 (5) SCC 647. ………..…46
CONVENTIONS
1. 1951 Convention Relating to the Status of Refugees. ………………………………28
2. Charter of Economic Rights and Duties of States. ………………………………….39
3. Convention on the Elimination of All Forms of Discrimination against Women. .....22
4. Environment and the OECD Guidelines for Multinational Enterprises. The Organization
for Economic Co-operation and Development. ……………………………………...41
5. International Convention on Civil and Political Rights. ………………………….20,32
DECLARATION
1. Rio Declaration on Environment and Development. …………………………40,41,42
PROTOCOL
1. Protocol on Strategic Environmental Assessment to the Convention on Environmental
Impact Assessment in a Transboundary Context. …………………………………42
3
RESOLUTION
1. Resolution on Permanent Sovereignty over Natural Resources, ¶ 87, G.A. Res. 1803,
U.N. GAOR, 17th Sess., Supp. No. 17, at 15, U.N. Doc. A/5217 (1962)). …………37
2. UN Sustainable development, Future we want. ………………………………43,44,46
ARTICLES
1. 5 CONGRESSIONAL RESEARCH SERVICE, “TEMPORARY PROTECTED STATUS: CURRENT
IMMIGRATION POLICY AND ISSUES,” (2015). ………………………………………30
2. BOBBY MAGILL, HUGE METHANE LEAKS ADD DOUBT ON GAS AS ‘BRIDGE’ FUEL
(2014). ………………………………………………………………………………26
3. D. M ROSENBERG, GLOBAL-SCALE ENVIRONMENTAL EFFECTS OF HYDRO- LOGICAL
ALTERATIONS (2000). ………………………………………………………………36
4. G. WHITE, NATIONALISATION OF FOREIGN PROPERTY 10 ( Stevens & Sons Ltd.. London
.1961). ………………………………………………………………………………36
5. GENERAL COMMENT NO. 24 (2017) ON STATE OBLIGATIONS UNDER THE INTERNATIONAL
COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE CONTEXT OF
BUSINESS ACTIVITIES. ……………………………………………………………..…45
6. GHASSEMI ALI, EXPROPRIATION OF FOREIGN PROPERTY IN INTERNATIONAL LAW,
UNIVERSITY OF HULL (Jun.1999). ………………………………………………..…37
7. J. E. DE. ARÉCHAGA, STATE RESPONSIBILITY FOR THE NATIONALIZATION OF FOREIGN-
OWNED PROPERTY (1978). ……………………………………………………….…39
8. JOANNA APAP, THE CONCEPT OF 'CLIMATE REFUGEE' TOWARDS A POSSIBLE DEFINITION
(PE 621.893 – Jan. 2019). ……………………………………………………….….25
4
9. JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVENTURE
10 (TRANSNATIONAL PUBLISHERS, 1984). …………………………………………...21
10. L.BERGA , ROLE OF HYDROPOWER IN CLIMATE CHANGE MITIGATION AND ADAPTATION:
A REVIEW (2016). ……………………………………………………………………34
11. NATHAN BARROS & BRIDGET R. DEEMER, GREENHOUSE GAS EMISSIONS FROM
RESERVOIR WATER SURFACES: A NEW GLOBAL SYNTHESIS (BIO SCIENCE, 2016). ….26
12. NEWMAN, 222 Va. at 539–40, 281 S.E.2d at 900. ……………………………………39
13. P. MCCULLY, SILENCED RIVERS: THE ECOLOGY AND POLITICS OF LARGE DAMS (Zed
Books, 2001). ………………………………………………………………………..35
14. PHILIPPE VAN CAPPELLEN, DAMS ARE MAJOR DRIVER OF GLOBAL ENVIRONMENTAL
CHANGE (2017). ……………………………………………………………………..26
15. PHYLLIS COVEN, CONSIDERATIONS FOR ASYLUM OFFICERS ADJUDICATING ASYLUM
CLAIMS FROM WOMEN, MEMORANDUM TO ALL INS ASYLUM OFFICERS, HQASM
COORDINATORS, 4 (1995). …………………………………………………………...31
16. RICHARD BLACK, ENVIRONMENTAL REFUGEES: MYTH OR REALITY? (2001). ………25
17. SANYA SAMTANI , DEPORTING ROHINGYA REFUGEES: INDIAN SUPREME COURT
VIOLATES PRINCIPLE OF NON-REFOULEMENT (2018). ………………………………28
REPORTS
1. 941, U.N. Rep. Int’L Arb. Awards 1905. …………………………………………..44
2. INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS : LEGAL
IMPLEMENTATION INDEX, Jul. 2003. ………………………………………………..21
3. ROYAL GOVERNMENT OF BHUTAN, BHUTAN WATER POLICY, 2007. ………………35
5
4. SECRETARY GENERAL, COMPILATIONS OF SAARC
CHARTER/CONVENTIONS.AGREEMENTS (2016). …………………………………….27
5. UN Doc. A/CN.4/1/Rev.1, at 34 (1949). …………………………………………...44
6. UNEP, ENVIRONMENTAL DISPLACEMENT: HUMAN MOBILITY IN THE ANTHROPOCENE
(2016). ………………………………………………………………………………25
7. UNHCR, AGE, GENDER AND DIVERSITY POLICY: WORKING WITH PEOPLE AND
COMMUNITIES FOR EQUAL PROTECTION (2011). ……………………………………..31
8. UNHCR, HANDBOOK ON PROCEDURE AND CRITERIA FOR DETERMINING REFUGEE
STATUS UNDER THE 1951 CONVENTION AND THE 1967 PROTOCOL RELATING TO THE
STATUS OF REFUGEES, 154 (1992). …………………………………………………32
9. UNHR, THE PRINCIPLE OF NON-REFOULEMENT UNDER INTERNATIONAL HUMAN RIGHTS
LAW (2018). …………………………………………………………………………28
10. WORLD HEALTH ORGANIZATION, THE WHO MULTI-COUNTRY STUDY ON WOMEN’S
HEALTH AND DOMESTIC VIOLENCE AGAINST WOMEN (2005). ……………………..30
6
STATEMENT OF JURISDICTION
The parties have approached the Hon’ble International Court of Justice under Article 36 (1)
and Article 36 (2)(c) which states:
“1. The jurisdiction of the Court comprises all cases which the parties refer to it and all
matters specially provided for in the Charter of the United Nations or in treaties and
conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state
accepting the same obligation, the jurisdiction of the Court in all legal disputes
concerning:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would constitute a breach of an
international obligation;”
7
STATEMENT OF FACTS
INTRODUCTION
1. Republic of Eden (hereinafter “Respondent No. 1”), a developing South Asian country
with the world’s fastest growing economy, bound by the Republic of Ardenia (hereinafter
“Applicant No. 2”) on its northeastern side and the Kingdom of NWF (hereinafter
“Respondent No. 2”) on its western side. The three countries have a written constitution,
guaranteeing fundamental rights.
2. Respondent No. 1 has a highly diversified economy being a favorite destination for FDI,
rich biodiversity, and shares a clearly demarcated but not fenced border withApplicant
No. 2 which is a land-locked economy that depends on tourism and Respondent No. 1 for
its essential commodities.
3. Respondent No. 1 is often accused of exploiting its position of strength through inherent
threats of cutting essential supplies while entering into bilateral arrangements or
developmental project with benefits sharing. Yet the Respondent No. 1 and Applicant No.
2 have entered into several bilateral treaties and execution of infrastructure projects.
4. In 2012, Respondent No. 1 entered into the 'Development of Mega Hydro- Electricity
Project - 2012' with Applicant No. 2, on river 'Tuvalu' which originates in mountainous
region of Applicant No. 2 but flows majorly through Respondent No. 1, supporting
agriculture and numerous activities on its bank. It is one of the most revered river- systems
in Respondent No. 1 in terms of spirituality and religious sentiments.
5. The Project required a large suitable area which was identified jointly by the Expert
Committee constituted by the two parties. 80% portion of Project and its geographical area
submerged due to water storage was situated in Applicant No. 2.
8
6. The generation, distribution and management of Electricity facilities were located within
the jurisdiction of Respondent No 1 and the project was developed and financed by Mega
Hydro Electricity Project Corporation Ltd. (hereinafter “MHEPC Ltd”.), a Govt. company
of the Respondent No. 1.
7. However, the Special Purpose vehicle (SPV) which would execute and implement the
project was registered and incorporated under the law of Applicant No. 2. Thus, Ardenia
Power Corporation Ltd. (hereinafter “APCL.”) with 100% shareholding of MHEPC Ltd.
was incorporated under the laws of Applicant No. 2 to execute the project. The cost of the
project was completely borne by Respondent No.1 who also controlled the water level in
dam and its release during the monsoon season.
8. One of main objectives of the dam was to meet the growing electricity need in Applicant
No. 2 which required electricity to facilitate the setting up of industrial park in its city of
Oxenberg which housed the major MNC's. The project tackled energy poverty in terms of
electricity as well as solved the problem of perennial flood during monsoon season, in the
territory of Respondent No. 1 by controlling the flow of water.
9. The agreement stipulated that the Respondent No. 1 would give 30% of the Electricity
generated, for free to Applicant No. 2 for 25 years and further purchases would be on
competitive market value, determined by the High Power Committee.
10. The project being located on the border, Respondent No. 1 assisted in rehabilitation of
nearly 10000 of the 20000 migrant citizens of Applicant No. 2 displaced by the project,
by running a special program and granting a 10 year stay visa irrespective of verifying the
nationality of citizens.
11. Majority of the refugees hailed from the 'Mao' and Christian Community, minorities.
9
These displaced people were issued certificates and identity cards by the UNHCR
recognizing them as refugees requiring to be protected from forcible return to a country
where they face threats to their life or freedom.
12. Further. these displaced people, worked in construction related activities on daily wages
in Project. The Five Generating Units of the Project were operational by year 2010
reaching its full generating capacity of 2500 MW.
13. One of the leading Climate Change Experts opined on the impact of large dams and
climate change. They observed that the diversion of water from the rivers drain and dry
up downstream wetlands that are carbon sinks, holding vast amounts of greenhouse gases
in soils, causing the release of methane into the air.
CASE OF IRWIN
14. Ms Irwin and her sons, Mr. X and Mr. Z aged about 8 and 10 years crossed into the territory
of Respondent No. 1 in 2002-2003, along with other displaced citizens. However, she had
no document to prove her citizenship, of Applicant No. 2.
15. On being registered with UNCHR along with her two children as refugee, she started
teaching and was recognized with various awards from international agencies for her
pioneering work and selfless contribution towards the upliftment of the displaced children.
16. In 2015, Mr. X & Mr. Z, having no previous criminal record were made accused in a case
under the Narcotic Drugs & Psychotropic Substances Act, 1985, on being found in
possession of pseudoephedrine tablets. They were convicted and sentenced to undergo
imprisonment for one year and six months for offences under the Eden Penal Code, 1860
and NDPS Act, 1985.
17. In 2018, the Government of Respondent No. 1 prepared a National Register of all
10
Foreigners/ illegal settlers in Respondent No. 1 after year 2000. In March 2018 they started
the deportation process of Ms. Irwin and her two sons to Applicant No. 2 who refused to
accept them as their citizens.
18. Ms. Irwin in her deposition before the competent authorities that she is a national of
Respondent No. 2. In 1997 she was forced to leave her country of origin because of her
husband and a faction of society who threatened her for allegations of infidelity. She
somehow fled with her two sons and entered Applicant No. 2. There was debate over the
exact causation that forced Ms. Irwin to seek refugee status in Applicant No. 2. While
some highlighted the volatile and archaic law regulating infidelity in Respondent No. 2,
some termed her as 'Climate Refugee', rendered 'stateless'. Her story attracted the
international media and underlined the plight of such refugees specially the women.
19. The High Commissioner of UNCHR appealed to Respondent No. 1 not to deport Ms.
Irwin and sons, stating that UNCHR (hereinafter “Applicant No. 1) – as a unit of UN
would take all effective and necessary steps to safeguard the rights and wellbeing of people
who have been forced their country of origin.
20. Domestic abuse of women and violence towards women is prevalent in societal structure
of Applicant No. 2 where a woman's place in is low. The discrimination against women is
partly tolerated by the State and partly sanctioned by the State. Married women are
subordinate to the will of their husbands. This situation has been report on by the leading
international organization Humane International.
CLIMATE CHANGE REFUGEES
21. Climate Change is a reality, affecting human life, causing numerous problems cutting
across economic, social, cultural, technological and specific environmental dimensions,
11
triggering forced migration and displacement.
22. 'Climate change refugees', even though not defined at regional and international levels,
are the outcome of environmental damages and disorders coupled with injustice. The
Refugee protection regime has been recognised as one of the primary reason for the
vulnerabilities of innocent people who migrate as a natural response to environmental and
climate change.
23. The current estimates indicate upto 200 million people to be displaced by 2050 as a direct
result of Climate Change. The Secretary-General of the UN outlined several alarming
scenarios, including scarcity of food and water transforming peaceful competition into
violence and floods and droughts sparking massive human migrations. Applicant No. 2, a
non-permanent member of UNSC in 2013, emphasized on the need for the UNSC to
intervene in relation to the Climate Change.
WATER CRISIS
24. In 2017, the city of Oxenberg, whose population doubled in the last two decades, faced
one of its worst water crisis. Experts attributed this crisis to Climate Change and change
in eco-system caused due to implementation of the Project. While residents and authorities
adopting precautionary measures, public anger was sparked by big bottling companies
which draws water to make soft drinks and bottled water from city sources.
25. The city council of Oxenberg appointed an expert Committee to suggest measures for
avoiding future crisis. The Expert Crisis in its preliminary report stressed upon :-
(i) the crisis is not about scarcity of water, rather its management, allocation and attaching
priority of availability.
(ii) inclusive and democratic frameworks for governance of dwindling water resources must
12
be established.
(iii) access to water is usually uneven, and water and social justice are consequently intimately
connected.
(iv) building barrage on another neighboring river in the Applicant No. 2 and divert water for
the city of Oxenberg.
26. Applicant No. 2 nationalised the APCL. through an Ordinance and took over the control
of management of the Project in national interest, justifying the nationalization as the
erstwhile management of APCL under the control of Respondent No. 1 was not releasing
the amount of water for its people which led to the Oxenberg Water crisis.
27. Further Applicant No. 2 requested Respondent No. 1 to grant refugee status and protect
the basic rights and dignity of the 'climate refugees' who have fled due to construction of
Mega Structure dam. However, Respondent No. 1 through its External Affairs Ministry
communicated to Applicant No. 2 that it would not be responsible for the life, liberty and
security of the 'illegal refugees' from it and reserved its sovereign rights to grant or to
decline socio- economic benefits and citizenship or any other rights.
28. Respondent No. 1 in its communication brought to the attention of the Applicants that it
is not party to the UN Convention on the Refugee hence, it had no such obligations.
29. Subsequently, Respondent No. 2 acknowledged Ms. Irwin and her sons as their national
and are willing to cooperate in deportation process. Upon this development, the UNCHR
approached the International Court of Justice (hereinafter “ICJ”), against the Respondents,
highlighting the plights of refugee like Ms. Irwin and against the deportation process,
supporting the stand taken by Applicant No. 2 against Respondent No. 1.
30. Applicant No. 2 approached the ICJ under Article 36 suing Respondent No. 1 as it failed
13
to protect the basic dignity and liberties of victims who were 'Climate Refugees', not
sharing the environmental assessment report, its impact on the human life and threats of
water crisis to cities like Oxenberg under the unprecedented circumstances and global
changes brought due to the Climatic and other environment degrading conditions.
31. The three countries are members of the United Nations and are (a) parties to the Statute of
the ICJ (b) parties to the Vienna Convention on the Law of Treaties, 1969, (c) founding
members of SAARC (d) parties to all Climate Change negotiations, framework and
conventions under the aegis of United Nations.
32. The three countries have ratified the 1979 Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW); the 1966 International Covenant on Civil and
Political Rights (ICCPR); the 1966 International Covenant on Economic, Social and
Cultural Rights (ICESCR); and the 1990 International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families.
CASE BEFORE THE ICJ
33. The ICJ, considering the similarity of legal issues pending before it clubbed the issue
raised by the Applicants against the Respondents.
34. Respondent No.1 opposed the jurisdiction of ICJ to adjudicate upon the status and
protection of 'Displaced People', contending that these displaced people are not Climate
Refugees, that the nationalization of APCL and the supply of water could be settled
through the dispute settlement mechanism contemplated under Mega Hydro-Electricity
Development Agreement.
35. It also asserted that climate change is the result of disproportionate economic activities of
particularly dominant economies of developed nations who consume and exploit greater
14
part of natural resources, therefore, it cannot be a responsibility regime for Respondent
No. 1 alone. This singling out, would be in derogation of all evolving principles of
proportionality of obligations in the International Environmental Law.
36. It also opposes the relevance of the clubbing, as the opinion sought regarding displaced
people /refugees, has no connection to the deportation of Ms. Irwin and her family, her
nationality which is an independent issue unconnected to the refugee subject.
37. The ICJ has recognised that Article 38 of the ICJ Statute in referring to the resolution of
“such disputes as are submitted to it” excludes not only disputes which the parties have
not chosen to bring before the Court, but also aspects of a dispute which the parties have
reserved to themselves for settlement.
38. The two disputes, Applicant No. 2 vs. Respondent No. 1 and UNCHR vs. Respondent No.
1 & Ors. have been scheduled for hearing before the ICJ on 13 -14 February 2018.
15
ISSUES RAISED
1. WHETHER THE ICJ HAS JURISDICTION TO ADJUDICATE UPON THE STATUS AND
PROTECTION OF ‘DISPLACED PEOPLE’ FROM ARDENIA?
2. WHETHER THE PEOPLE DISPLACED OWING TO THE DEVELOPMENT OF MEGA HYDRO-
ELECTRICITY PROJECT-2002 ARE CLIMATE REFUGEES OR NOT?
3. WHETHER THE NATIONALIZATION OF APCL IS LAWFUL?
4. WHETHER RESPONDENT NO. 1 IS SOLELY RESPONSIBLE FOR THE ENVIRONMENTAL
DEGRADATION IN AND AROUND THE INDIC-EDEN SUB-CONTINENT?
16
SUMMARY OF PLEADINGS
1. THE ICJ HAS JURISDICTION TO ADJUDICATE UPON THE STATUS AND PROTECTION OF
‘DISPLACED PEOPLE’ FROM ARDENIA
The International Court of Justice has the jurisdiction to adjudicate upon the status and
protection of ‘displaced people’ from the Applicant No. 2 attracts Article 36 of the Statute
of the International Court of Justice in that the Respondent No. 1 stands in violation of the
ICCPR and the matter at hand is not excluded from the jurisdiction merely because of the
presence of a Dispute Settlement Clause in the Bilateral Agreement between the Applicant
No. 2 and the Respondent No. 1.
2. THE PEOPLE DISPLACED OWING TO THE DEVELOPMENT OF MEGA HYDRO-ELECTRICITY
PROJECT-2002 ARE CLIMATE REFUGEES.
The people displaced owing to the adverse impact of the Development of Mega Hydro-
Electricity Project-2002 are Climate Refugees and are accordingly entitled to protection
firstly, by determining the scope of the term ‘Climate Refugee’ as a result of which the
persons so displaced are entitled to protection by the Respondent No. 2 and secondly, Mrs.
Irwin and her kids are not only ‘Climate Refugees’ but also political refugees and Mrs.
Irwin especially is a refugee fleeing from domestic violence as well.
3. THE NATIONALIZATION OF APCL IS LAWFUL.
The nationalization of the APCL by Applicant No. 2 through the issuance of an Ordinance
is valid and lawful. Firstly, the Government of Respondent No. 1 has strong armed
17
Applicant No. 2 and misused its sole right to control the water level (4.1). Secondly, the
impact of the Mega Hydro- Electricity Project outweighs its developmental objects. (4.2).
Thirdly, the nationalization of APCL was in the national interest of Applicant No. 2 and is
therefore lawful (4.3).
4. RESPONDENT NO. 1 IS SOLELY RESPONSIBLE FOR THE ENVIRONMENTAL DEGRADATION IN
AND AROUND THE INDIC-EDEN SUB-CONTINENT
Respondent No. 1, firstly failed to share the environmental assessment report showing the
impact of the Mega Hydro-Electricity Project 2012 on human life and the subsequent water
crisis that it would cause on the citizens of Applicant No. 2. Secondly, Respondent No. 1
over the years continues to abuse their position of dominance for reason being the overt
dependence of Applicant No. 2 on the supply of essential commodities required by it.
Thirdly, Respondent No. 1 blatantly shunned the State responsibility and obligations
bestowed on it under International Environmental Law.
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PLEADINGS
1. WHETHER THE ICJ HAS JURISDICTION TO ADJUDICATE UPON THE STATUS AND
PROTECTION OF ‘DISPLACED PEOPLE’ FROM ARDENIA?
1. It is most humbly submitted before this Hon’ble Court that the International Court of
Justice has the jurisdiction to adjudicate upon the status and protection of ‘displaced
people’ from the Applicant No. 2 attracts Article 36 of the Statute of the International
Court of Justice in that the Respondent No. 1 stands in violation of the ICCPR and the
matter at hand is not excluded from the jurisdiction merely because of the presence of a
Dispute Settlement Clause in the Bilateral Agreement between the Applicant No. 2 and
the Respondent No. 1.
1.1 JURISDICTION UNDER ARTICLE 36 OF THE ICJ STATUTE
2. The matter at hand is regarding the status and protection of the people who were displaced
from the Applicant No. 2 to the Respondent No. 1 in 2002-03 owing to the construction
of the mega dam structure in pursuance of the bilateral agreement regarding the
development of the Mega Hydro- Electricity Project between the Applicant No. 2 and the
Respondent No. 1.
3. The International Court of Justice is authorized to adjudicate in this matter by virtue of
Article 36 of the Statute of the ICJ which confers upon the Court jurisdiction in the
following matters:
i. All cases which the parties refer to it.
ii. All matters specially provided for in the Charter of the United Nations or in treaties
and conventions in force.
19
iii. All matters wherein which there has been a Declaration in accordance with Art 36 (2)
recognizing the compulsory jurisdiction of the ICJ to decide upon the dispute.
4. The parties in the instant case have ratified the International Convention on Civil and
Political Rights 19661. The Preamble to the ICCPR lays out the principles that form the
essence of the legal framework established by the Covenant. It declares recognition of the
inherent dignity and of the equal and inalienable rights of all members of the human family
as the foundation of freedom, justice and peace in the world, in accordance with the
principles of the UN Charter. Furthermore, it bears record of the fact that the State parties
recognize that the rights enshrined in the Covenant are derived from the inherent dignity
of the human person.
5. Furthermore, Article 2 of the ICCPR2 extends to all individuals including aliens in that it
mandates the State parties to the Convention to respect and undertake to all individuals
within its territory, irrespective of race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
6. The governing principles of the Respondent No. 1 as laid down in its Constitution include
fundamental right to life and liberty and the inviolability of human dignity and basic
rights3. Despite this the Government of Respondent No. 1 in its response to the Applicant
No. 2’s request to continue to support the displaced people stated that it would not be
responsible for the life, liberty and security of the people concerned thereby refusing to
recognize the inherent dignity of the displaced people by virtue of their human nature.
1
Fact dossier ¶ 55.
2
International Convention on Civil and Political Rights art. 2, Mar. 23, 1976, A/RES/2200 (XXI).
3
Fact dossier ¶ 47.
20
1.2 PROTECTION UNDER ARTICLE 13 OF THE ICCPR
5. Article 13 of the ICCPR protects aliens from arbitrary expulsion. The language of said
Article limits such protection to only such aliens as are lawfully within the territory of the
State party. In the instant case, the Applicant No. 2 is seeking to exempt itself from the
international obligation towards aliens within its territory by terming the displaced people
from Applicant No. 2 as ‘illegal refugees’.
6. To lawfully reside within a State, an alien must have legally entered the State as
recognized by that domestic legal system.4 In the instant case, assisted in rehabilitating
people displaced from the Applicant No. 2 by means of a special program under which
they were issued visas irrespective of verifying their nationalities. This displacement was
a natural outcome of the development of the Mega Hydro- Electricity Project and
therefore, the displaced people entered the territory of Respondent No. 1 legally and were
recognized by a special program instituted by the Government of Respondent
7. Article 13 is addressed to the procedures involved, as opposed to the substantive grounds
at issue in an expulsion case. However, In J.B. v Canada, the UNHRC has determined that
all expulsions must be in accordance with law thus indicating that Article 13 of the ICCPR
provided a basis of limited substantive review to the extent that proper procedure has been
followed. 5 Each and every alien is entitled to a separate procedure, i.e. procedures
involving collective expulsions and implicitly forbidden.6
4
INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS : LEGAL IMPLEMENTATION INDEX, Jul. 2003,
5
J.B. v Canada, Oct 22 1992, CCPR/C/46/D/255/1987.
6
JOHN P. HUMPHREY, HUMAN RIGHTS AND THE UNITED NATIONS: A GREAT ADVENTURE 10 (TRANSNATIONAL
PUBLISHERS, 1984).
21
8. The Human Rights Commission also made clear that “an alien must be given full facilities
for pursuing his remedies against expulsion”7
9. In instant case, the executive decision by the Respondent No. 1 was regarding the
deportation and relocation of all the people who had entered the territory of Respondent
No. 1 in the mass displacement of 2002-03.8
1.3 JURISDICTION OF THE ICJ IS NOT EXCLUDED
10. Article 38 of the Statute of the International Court of Justice provides that the function of
the ICJ is to decide upon only such matters as are submitted to it.
11. In the instant case, the dispute is regarding the status and protection of the people displaced
from the Applicant No. 2 to the Respondent No. 1 in pursuance of the Bilateral Agreement
between them. The Dispute Settlement Clause in the Bilateral Agreement provides for
means to resolve the dispute in the aftermath of failure to resolve the same 6 months from
whence the dispute was raised in writing. It confers upon the investor the power to choose
from the following means of settlement of dispute:
i. By taking the matter up in competent courts of the Party in whose territory the
investment is made
ii. By placing the matter for arbitration before the International Centre for the Settlement
of Investment Disputes (ICSID) established by the Convention on the Settlement of
Investment Disputes between States and nationals of other States,
7
Convention on the Elimination of All Forms of Discrimination against Women, G.A.Res.34/180,.N. Doc.
A/34/46 (Sept. 3, 1981).
8
Fact dossier ¶ 27.
22
iii. By means of an ad hoc arbitration tribunal, which unless otherwise agreed upon by
the parties to the dispute, is to be established under the Arbitration Rules of the United
Nationals Commission on International Trade Law (UNCITRAL).
12. In the instant case, the investor in the Mega Hydro- Electricity Project was the Mega
Hydro- Electricity Project Corporation Ltd., a Government Company of the Respondent
No. 19. Therefore, in accordance with the dispute settlement mechanism as laid out by the
Bilateral Agreement between the Applicant No. 2 and the Respondent No. 1, it is the
latter’s prerogative to choose from the various means of dispute settlement laid out.
13. Article 44 of the ICCPR does not prevent the State parties from having recourse to other
procedures for settling a dispute in accordance with general or special international
agreements in force between them, it does not provide for the exclusion of the procedures
prescribed in the field of human rights by or under the constituent instruments and the
conventions of the United Nations and of the specialized agencies in the event that such
an alternative method of dispute resolution is opted for. In other words, the means of
redressal provided for in Article 44 of the ICCPR are not mutually exclusive of each other.
14. The Applicant No. 2 is currently grappling under the aftermath if one of the worst water
crisis it has ever faced and is faced with a lack of resources to rehabilitate the 20,000
people who had migrated to the Respondent No. 1 in 2002-03. The conduct of the
Respondent No. 1 has been in blatant disregard of its obligations towards humanity and
as a party to the ICCPR. The matter concerning the protection of aliens from arbitrary
expulsion is specially provided for in Article 13 of the International Covenant on Civil
9
Fact dossier ¶ 9.
23
and Political Rights and under Article 44 of the same, the implementation of the provisions
of the Covenant are entrusted with the constituent instruments and conventions and
specialized agencies of the United Nations of which the International Court of Justice
established under the Statute of the International Court of Justice is the principal judicial
organ of the United Nations.
15. Therefore it is most humbly submitted that the International Court of Justice has
jurisdiction in the matter concerning the status and protection of the displaced people from
Applicant No. 2 as it has been provided for under the International Covenant on Civil and
Political Rights thereby attracting Article 36 of the Statute of the International Court of
Justice and Article 38 is not attracted as the Applicant No. 2 has the right to approach the
ICJ for the implementation of the ICCPR irrespective of the existence of an alternate
means of dispute settlement as under the Bilateral Agreement between the Applicant No.
2 and the Respondent No. 1.
2. WHETHER THE PEOPLE DISPLACED OWING TO THE DEVELOPMENT OF MEGA
HYDROELECTRICITY PROJECT-2002 ARE CLIMATE REFUGEES OR NOT?
16. It is most humbly submitted before this Hon’ble Court that the people displaced owing to
the adverse impact of the Development of Mega Hydro-Electricity Project-2002 are in fact
Climate Refugees and are accordingly entitled to protection.
17. This issue will be dealt with in a three-fold manner. Firstly, by determining the scope of
the term ‘Climate Refugee’ as a result of which the persons so displaced are entitled to
protection by the Respondent No. 2 and secondly, Mrs. Irwin and her kids are not only
24
‘Climate Refugees’ but also political refugees and Mrs. Irwin especially is a refugee
fleeing from domestic violence as well.
2.1 DEFINITION AND SCOPE OF THE TERM ‘CLIMATE REFUGEE’:
18. It is most humbly submitted before this Hon’ble Court that the people displaced from the
Applicant No. 2 due to the Mega Hydro-electricity Project are in fact Climate Refugees.
Myers and Kent have described environmental refugees as, ‘persons who no longer gain
a secure livelihood in their traditional homelands because of what are primarily
environmental factors of unusual scope.’10
19. Furthermore, the United Nations Environment Programme (UNEP) expert Essam El-
Hinnawi defined 'environmental refugees' as:
'… those people who have been forced to leave their traditional habitat, temporarily or
permanently, because of marked environmental disruption (natural and/or triggered by
people) that jeopardized their existence and/or seriously affected the quality of their life'.
This definition is also used for the term 'climate refugees.'11
20. According to academic researchers Docherty, a 'climate refugee' definition should include
the following parts:
'forced migration, temporary or permanent relocation, movement across the borders,
disruption consistent with climate change, sudden or gradual environmental disruption,
and a more than likely standard for human contribution to the disruption'.12
10
RICHARD BLACK, ENVIRONMENTAL REFUGEES: MYTH OR REALITY? (2001).
11
UNEP, ENVIRONMENTAL DISPLACEMENT: HUMAN MOBILITY IN THE ANTHROPOCENE (2016).
12
JOANNA APAP, THE CONCEPT OF 'CLIMATE REFUGEE' TOWARDS A POSSIBLE DEFINITION (PE 621.893 – JANUARY
2019).
25
21. The 80% of the Mega-Hydro-electricity Project comprised of a huge mega structure of
dam and its geographical area submerged due to water storage was situated in Applicant
No. 2.13 Research released in recent years have confirmed that dams and reservoir are a
major source of greenhouse gas emissions driving climate change.
22. A study published in Bio Science 14 in late 2016 determined that dams and reservoirs
contribute to global warming 25% more than previously estimated. 79% of the greenhouse
gas emissions from reservoirs are methane which even though has a relatively short life in
the atmosphere has a very strong warming effect in the short term. is about 35 times more
potent15 a greenhouse gas than carbon dioxide over the span of a century, but 86 times
more potent in accelerating climate change over a decade or two.
23. Philippe Van Cappellen, co-author of 2017 Canadian Study while assessing the impacts
of reservoirs stated that, ‘Dams don’t just have local environmental impacts. . . . they play
a key role in the global carbon cycle and therefore the earth’s climate.’16
24. Additionally, the United Nations Framework Convention on Climate Change (UNFCC),
as augmented by the four key findings of the Intergovernmental Panel on Climate Change
relevant to population movement: a) reduction of available water; b) decreases in crop
yields; c) risk of floods, storms and coastal flooding; and d) negative overall impacts on
health (especially for the poor, elderly, young and marginalised).17
13
Fact dossier ¶ 8.
14
NATHAN BARROS & BRIDGET R. DEEMER, GREENHOUSE GAS EMISSIONS FROM RESERVOIR WATER SURFACES:
A NEW GLOBAL SYNTHESIS (BIO SCIENCE, 2016).
15
BOBBY MAGILL, HUGE METHANE LEAKS ADD DOUBT ON GAS AS ‘BRIDGE’ FUEL (2014).
16
PHILIPPE VAN CAPPELLEN, DAMS ARE MAJOR DRIVER OF GLOBAL ENVIRONMENTAL CHANGE (2017).
17
supra note 11, at 22.
26
25. Additionally, the Mega-Hydro-electricity project has resulted in one of the worst water
crisis that the city of Oxenberg has ever faced as the government of Respondent No. 1 was
not releasing enough water.18 It is pertinent to note that even The SAARC Social Charter
of 2005 states that:
“States Parties shall endeavor to inculcate a culture of self-contentment and regulation
where unsustainable consumption and production patterns would have no place in the
society…”19
26. In the instant case, the water crisis in the city of Oxenberg was the direct result of
unsustainable and indiscriminate use of water as a natural resource for the particular
Project by Respondent No. 2.
27. Apart from the project, even big bottling companies like Coca-Cola and others also draw
water to make soft drinks and bottled water from city sources20. These actions have been
found to be detrimental to the people living in and around the city of Oxenberg.
28. Therefore, in the instant case, the people were permanently displaced which resulted in
them moving across to the Respondent No. 2 owing to water scarcity and other
environmental damage caused by the Mega Hydro-electricity Project and hence they come
within the ambit of the term Climate Refugees.
2.2 RESPONDENT NO. 2 HAS FAILED TO PROTECT AND SAFEGUARD THE CLIMATE REFUGEES
18
Fact dossier ¶ 42.
19
SECRETARY GENERAL, COMPILATIONS OF SAARC CHARTER/CONVENTIONS.AGREEMENTS (2016).
20
Fact dossier ¶ 44.
27
29. It is most humbly submitted that even though Respondent No. 2 is not a party to the UN
Convention on Refugee, 1951 and allied protocol 21 , it still has the obligation and
responsibility to protect and safeguard the basic rights of the refugees.
39. The principle of non-refoulment guarantees that no one should be returned to a country
where they would face torture, cruel, inhuman or degrading treatment or punishment and
other irreparable harm. This principle applies to all migrants at all times, irrespective of
migration status. 22
40. This principle is enshrined in Article 33 of the Refugee Convention23 but UNHCR has
now recognized that it is a principle of customary international law and applies to all states.
Even ICCPR encapsulates the principle of non-refoulment. 24
41. In the instant case if the displaced persons including Mrs. Irwin and her kids are deported
back to Applicant No. 2 or in Mrs. Irwin’s case, Kingdome of NWF, the parties are bound
to be at a risk of irreparable harm which they tried to escape in the first place that is
environmental degradation and serious forms of sexual and gender-based violence25.
2.3 MRS. IRWIN AND HER KIDS ARE ‘CLIMATE REFUGEES’
42. It is most humbly submitted that Mrs. Irwin and her two kids are also climate refugees as
the reason for their displacement from the Applicant No. 2 to Respondent No. 2 was due
to the impact of the Mega Hydro-Electricity Project. Mrs. Irwin is not only a climate
refugee but also a political refugee as well as a refugee fleeing from domestic violence.
21
Fact dossier ¶ 49.
22
UNHR, THE PRINCIPLE OF NON-REFOULEMENT UNDER INTERNATIONAL HUMAN RIGHTS LAW (2018).
23
1951 Convention Relating to the Status of Refugees art. 33, RES/2198 (XXI).
24
SANYA SAMTANI , DEPORTING ROHINGYA REFUGEES: INDIAN SUPREME COURT VIOLATES PRINCIPLE OF NON-
REFOULEMENT (2018).
25
Njamba and Balikosa v. SwRespondent No. 1, No. 322/2007 (2010), CEDAW, General Recommendation No.
32, para 23.
28
43. Mrs. Irwin, a national of Respondent No. 2 was forced to leave her country and move to
Kingdom of Applicant No. 2 due to hostile behaviour from one of the political factions in
the Respondent No. 2 and also because of domestic violence at the hands of her husband26.
She along with her two children had gotten themselves registered as refugee with UNHCR
after moving to Respondent No. 1 as well27.
44. Article 1(A)2 of the 1951 Refugee Convention28, refugee is “a person who 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, unwilling to avail himself of the protection of that
country.’ The Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status published by UNHCR in 1979 defined ‘persecution’ as any threat to life
or freedom, whose existence had to be assessed on the basis of both objective and
subjective criteria.
45. Even in case of imputed political opinion, women can claim refugee status regardless of
whether their political opinion is grounded in explicit and expressed oppositional views
or whether those views are real or imputed. 29 This well-established imputed political
opinion doctrine focuses on the persecutor’s perception of the applicant’s beliefs, not the
applicant’s own beliefs. Evidence of imputation of a political opinion can be direct or
circumstantial.30
26
Fact dossier ¶ 23.
27
Fact dossier ¶ 19.
28
Ibid.
29
Hernandez-Ortiz v. INS, 777 F.2d 509, 517 (9th Cir. 1985) (finding the applicant’s actual political view,
whether neutral or partisan, irrelevant where government attributed certain political opinions to her).
30
INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
29
46. In the instant case, Mrs. Irwin was forced to leave her country, Respondent No. 2 because
of the hostile treatment and threats made by a particular political faction not only against
her but also her family. In Korablina v. Immigration and Naturalization Service31, the US
Court of Appeals for the 9th Circuit had held that, ‘Persecution may be found by
cumulative, specific instances of violence and harassment toward an individual and his or
her family members.’
47. Moving on to the aspect of domestic violence and refugee protection, UNHCR’s
interpretation of the refugee law recognizes that gender violence (including intimate
partner violence); family association; political opinion; lesbian, gay, bisexual, transgender
and intersex status; and racial or indigenous status among others, meet the criteria for
protection. 32
48. Domestic violence against women may be one of the most prevalent forms of violence
against women33 and has been one of the most common contexts for claims to refugee
protection based on a gender defined “particular social group.”
49. Matter of R-A- in which asylum was granted to a Guatemalan woman who fled to United
States to escape severe domestic abuse and Matter of L-R- where a Mexican woman and
two of her sons were granted asylum based on severe domestic violence and it was held
that in certain cases domestic violence can be grounds for asylum. These were two cases
that opened the door to asylum seekers fleeing domestic violence.
31
Korablina v. Immigration and Naturalization Service, No. 97-70361, 158 F 3d.
32
5 CONGRESSIONAL RESEARCH SERVICE, “TEMPORARY PROTECTED STATUS: CURRENT IMMIGRATION POLICY
AND ISSUES,” (2015).
33
WORLD HEALTH ORGANIZATION, THE WHO MULTI-COUNTRY STUDY ON WOMEN’S HEALTH AND DOMESTIC
VIOLENCE AGAINST WOMEN (2005).
30
50. Additionally, the report titled ‘Women in Ardenia’ by the leading internation organization
Humane International have described the prevailing situation in Applicant No. 2 as
explicitly discriminatory against women who are also disadvantaged generally in the
criminal justice system because of their position in the society. Discrimination against
women is specifically prohibited under Elimination of All Forms of Discrimination
Against Women to which Applicant No. 2 is a signatory.
51. Even, UNHCR’s Guidelines on Gender-Related Persecution within the Context of Article
1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees
(Gender Guidelines) state that “Women are a clear example of a social subset defined by
innate and immutable characteristics…and who are frequently treated differently than
men.”34
52. UNHCR also takes the position that women who suffer serious harm in domestic
relationships can qualify for refugee protection and the US Gender Guidelines 35 also
specify it as a base for claiming refugee protection where there is a State unwillingness or
inability to protect.
53. It is further submitted that conviction of Mr. X and Mr. Z cannot be a basis for their
removal from the country. Article 33 Para 2 of the Convention permits a refugee's
expulsion or return to his former home country, if having been convicted by a final
34
UNHCR, AGE, GENDER AND DIVERSITY POLICY: WORKING WITH PEOPLE AND COMMUNITIES FOR EQUAL
PROTECTION (2011).
35
PHYLLIS COVEN, CONSIDERATIONS FOR ASYLUM OFFICERS ADJUDICATING ASYLUM CLAIMS FROM WOMEN,
MEMORANDUM TO ALL INS ASYLUM OFFICERS, HQASM COORDINATORS, 4 (1995).
31
judgment of a "particularly serious crime, he constitutes a danger to the community of his
country of refugee."36
54. Therefore, even if the family was to be expelled from the country and sent back to
Respondent No. 2, Article 13 of the International Covenant on Civil and Political Rights
37
state that,
“An alien lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with law and
shall, except where compelling reasons of national security otherwise require, be allowed
to submit the reasons against his expulsion and to have his case reviewed by, and be
represented for the purpose before, the competent authority or a person or persons
especially designated by the competent authority.” In the instant case, Respondent No. 2
had vide its executive decision taken steps to deport and relocate all the displaced refugees
including Mrs. Irwin and her kids. 38
55. Therefore, in light of the aforementioned reasons, it is submitted that all the displaced
persons including Mrs. Irwin and her kids are climate refugees who are entitled to
protection on the basis of customary international law of non-refoulment and on
humanitarian and compassionate grounds.
3. WHETHER THE NATIONALIZATION OF APCL IS LAWFUL?
56. It is humbly submitted before this Hon’ble Court that the nationalization of APCL by
Applicant No. 2 through the issuance of an Ordinance is valid and lawful. Firstly, the
36
UNHCR, HANDBOOK ON PROCEDURE AND CRITERIA FOR DETERMINING REFUGEE STATUS UNDER THE 1951
CONVENTION AND THE 1967 PROTOCOL RELATING TO THE STATUS OF REFUGEES, 154 (1992).
37
International Convention on Civil and Political Rights art. 13, Mar. 23, 1976, A/RES/2200 (XXI).
38
Fact dossier ¶ 27.
32
Government of Respondent No. 1 has strong armed Applicant No. 2 and misused its sole
right to control the water level (3.1). Secondly, the impact of the Mega Hydro- Electricity
Project outweighs its developmental objects. (3.2). Thirdly, the nationalization of APCL
was in the national interest of Applicant No. 2 and is therefore lawful (3.3).
3.1. GOVERNMENT OF RESPONDENT NO. 1 HAS STRONG ARMED APPLICANT NO. 2 AND
MISUSED ITS SOLE RIGHT TO CONTROL THE WATER LEVEL
57. It is humbly submitted before this Hon’ble Court that, the main objectives of the dam was
to meet the growing electricity need of Applicant No. 2 and to facilitate the setting up of
the industrial park near the city of Oxenberg.39 Applicant No. 2 is heavily dependent on
Respondent No.1 for essential commodities due to it being a land-locked economy. 40
Respondent No. 1 taking undue advantage of its position of dominance has entered into
bilateral arrangements for various developmental projects.41
58. APCL is a Special Project Vehicle incorporated under the laws of the Applicant No. 2, for
the execution and implementation of the MHEP wherein 100% of its shareholding are held
by MHEPC, a government company of Respondent No. 1, thereby the management of the
Project was directly in the control of MHEPC.42 According to the Mega Hydro-Electricity
Agreement the onus of allocation of water resources was on Respondent No.1 who agreed
to give only 30% of the power generated from the Project to Applicant No. 2.
59. It is pertinent to note that Applicant No. 2, being a land-locked, developing country, lacks
the resources and the expertise to develop its natural resources, therefore, it entered into
39
Fact dossier ¶11.
40
Fact dossier ¶4.
41
Fact dossier ¶5.
42
Fact dossier ¶9.
33
the aforementioned development project with Respondent No.1 despite the
disproportionately allocated benefits of the Project. It is submitted that 80% of the Project
area submerged under water is located within the territories of Applicant No. 2. 43
Furthermore, not only did Respondent No. 1 exploit the resources of Applicant No. 2, it
utilized the skill and manpower of the citizens of Applicant No. 2.44
60. Additionally, it is humbly submitted that the clause in the development agreement
pertaining to the rights of Respondent No.1 to control the water level in the dam is arbitrary
and opposed to the national interest of the Applicant No. 2. It is pertinent to note that the
cause for the water crises is due to the poor management of the MHEP by Respondent No.
1. It is therefore evident, that Respondent No.1 had exploited its position of dominance
and misused its right to control water levels.
3.2 THE IMPACT OF THE MEGA HYDRO- ELECTRICITY PROJECT OUTWEIGHS ITS
DEVELOPMENTAL OBJECTS
61. It is humbly submitted that since the implementation of the MHEP, the city of Oxenberg
has faced its worst water crisis in 2017. Various experts, environmentalists, policy makers
and scientists have attributed various causes, including the climate change and change in
eco-system.45
62. It is submitted that impact of the climate change as a result of the MHEP will alter river
discharge, resulting in impact on water availability and water regularity which therefore
led to the scarcity of water in Applicant No. 2. 46 One of the leading Climate Change
43
Fact dossier ¶ 8.
44
Fact dossier ¶15.
45
Fact dossier ¶ 42.
46
L.BERGA , ROLE OF HYDROPOWER IN CLIMATE CHANGE MITIGATION AND ADAPTATION: A REVIEW (2016).
34
Experts opined that large dams that divert water out of rivers may have significant
additional climate change impacts because they drain and dry up downstream wetlands
that are “carbon sinks” holding vast amounts of greenhouse gases in soils. This draining
and dry-up causes carbon and methane to be released and emitted into the air. Some dams
are likely to have catastrophic impact on massive ecosystem wide which includes massive
deforestation plans on areas that will be flooded by behind the reservoirs. The
deforestation itself would release enormous amounts of greenhouse gas emissions.47 The
Applicant No. 2 therefore finds itself susceptible to the impacts of climate change.
63. Further, there has been an increase of Glacial Lake Outburst Floods (GLOF) which are a
threats to life, property and future infrastructure development in the country, due to the
melting glaciers triggered by climate change. Another major impact of climate change will
be in reducing the natural flow regulating capacity of the glaciers for rivers which will
result in serious consequences on the water resources of Applicant No. 2. 48
64. Change in eco system due to the implementation of the MHEP is another cause for the
water crisis. Large dams have led to the extinction of many fish and other aquatic species,
the disappearance of birds in floodplains, huge losses of forest, wetland and farmland,
erosion of coastal deltas, and many other immitigable impacts.49 Dams traps sediments,
which are critical for maintaining physical processes and habitats downstream of the dam
which include the maintenance of productive deltas, barrier islands, fertile floodplains and
coastal wetlands, which in turn can completely alter the chemical makeup of a river. 50
47
Fact dossier ¶16.
48
ROYAL GOVERNMENT OF BHUTAN, BHUTAN WATER POLICY, 2007.
49
Fact dossier ¶17.
50
P. MCCULLY, SILENCED RIVERS: THE ECOLOGY AND POLITICS OF LARGE DAMS (Zed Books, 2001).
35
Further, due to the large number of pebbles and sand dam, the river bottom invertebrates
loose survival environment, such as insects, shellfish and animal 51
65. It is also submitted that the effect of dams on the environment in the flooded area leads to
the reduction of wetland landscape. The construction of the dam has also changed the
hydrological and hydrodynamic conditions, the ecological environment system of
floodplain wetland is destructed, which leads to the deterioration of regional ecological
environment.
66. It is pertinent to reiterate that as a result of the arbitrary development agreement, the right
to control water levels rests with Respondent No.1 which implies that, they are also
responsible for the allocation of the water resources. In the instant case, the substandard
management of MHEPC has resulted in poor allocation of water resources, which is the
primary cause for the water crisis.
67. In light of the aforementioned reasons, it is evident that the implementation of the MHEP,
is instrumental in causing the water crises in the city of Oxenberg.
3.3. NATIONALISATION OF OF APCL WAS IN THE NATIONAL INTEREST OF THE APPLICANT
NO. 2 AND IS THEREFORE LAWFUL
68. It is humbly submitted before this Hon’ble Court that the nationalisation of APCL on
passing an Ordinance by Applicant No. 2 is valid and lawful. The right of a State to
nationalise, in the words of White,52 is an attribute of its sovereignty in the sense of the
supreme power which it possesses in relation to all persons and things within its
jurisdiction.
51
D. M ROSENBERG, GLOBAL-SCALE ENVIRONMENTAL EFFECTS OF HYDRO- LOGICAL ALTERATIONS (2000).
52
G. WHITE, NATIONALISATION OF FOREIGN PROPERTY 10 ( Stevens & Sons Ltd.. London .1961).
36
69. It is pertinent to note that any interference by the State with private property, belonging
either to aliens or to nationals, which is located within its jurisdiction is not prohibited by
international law. This right has been recognised in modem international law by way of
various devices, including the relevant UN resolutions, legal writings, international
decisions of courts and arbitral awards, as well as State practice. 53
70. It is humbly submitted that this right is subject to certain conditions under customary
international law and investment treaties.54 As reflected in the TOPCO v. Libya55 case,
under customary international law a ‘lawful’ expropriation must be, at a minimum, for a
public purpose, non-discriminatory and accompanied by appropriate or fair
compensation.56 The permanent sovereignty that nations have over their natural resources
and their right to nationalization, if this can be justified on the grounds of “public utility,
security or the national interest,” is fully affirmed in international law and was set out in
UN General Assembly Resolution 1803 (XVII) on Permanent Sovereignty over Natural
Resources (1962). The relevant part of this resolution is as follows:
“The General Assembly,
Declares that:
1. The right of peoples and nations to permanent sovereignty over their natural wealth
and resources must be exercised in the interest of their national development and of the
well-being of the people of the State concerned.
53
GHASSEMI ALI, EXPROPRIATION OF FOREIGN PROPERTY IN INTERNATIONAL LAW, UNIVERSITY OF HULL (June
1999).
54
TOPCO v. Libya (1978) 17 ILM 1 at 59.
55
Ibid.
56
Resolution on Permanent Sovereignty over Natural Resources, ¶ 87, G.A. Res. 1803, U.N. GAOR, 17th Sess.,
Supp. No. 17, at 15, U.N. Doc. A/5217 (1962)).
37
2. The exploration, development and disposition of such resources, as well as the import
of the foreign capital required for these purposes, should be in conformity with the rules
and conditions which the peoples and nations freely consider to be necessary or desirable
with regard to the authorization, restriction or prohibition of such activities.
4. Nationalization, expropriation or requisitioning shall be based on grounds or reasons
of public utility, security or the national interest which are recognized as overriding purely
individual or private interests, both domestic and foreign. In such cases the owner shall
be paid appropriate compensation, in accordance with the rules in force in the State taking
such measures in the exercise of its sovereignty and in accordance with international law.
In any case where the question of compensation gives rise to a controversy, the national
jurisdiction of the State taking such measures shall be exhausted. However, upon
agreement by sovereign States and other parties concerned, settlement of the dispute
should be made through arbitration or international adjudication.
5. The free and beneficial exercise of the sovereignty of peoples and nations over their
natural resources must be furthered by the mutual respect of States based on their
sovereign equality.”
71. Additionally, contemporary international law also recognizes the right of every State to
nationalise foreign-owned property, even if a predecessor State or a previous government
engaged itself, by treaty or by a contract, not to do so. This is a corollary to the principle
of permanent sovereignty of a State including possession, use and disposal, over all its
wealth, natural resources and economic activities57 and proclaimed in successive General
57
Charter of Economic Rights and Duties of States, 1974, A/RES/29/3281.
38
Assembly Resolutions and particularly in Article 2, of Chapter II of the Charter of
Economic Rights and Duties of States.58
72. In light of the principles laid down by the Resolution, it can be concluded that the right of
a State to nationalise is an attribute of its sovereignty. The nationalisation of APCL by
Applicant No. 2 is therefore justified and lawful in nature as the sole objective was the
national interest of Applicant No. 2. It is pertinent to reiterate that Applicant No. 2 has
complied with all its obligations inclusive of payment of an appropriate compensation. In
the case of Fairfax County Fire and Rescue Services v. Newman59, the Supreme Court of
Virginia unanimously concluded that, for any presumption to be constitutional under the
due process clause, even in a civil case, “the presumption must be rebuttable.” In the
instant case, it is an ascertained fact that Respondent No. 1 was paid appropriate
compensation, in accordance with the rules in force in the State taking such measures in
the exercise of its sovereignty and in accordance with international law.
4. WHETHER RESPONDENT NO. 1 IS SOLELY RESPONSIBLE FOR THE ENVIRONMENTAL
DEGRADATION IN AND AROUND THE INDIC-EDEN SUB-CONTINENT?
73. It is most humbly submitted before this Hon’ble Court that Respondent No. 1, firstly failed
to share the environmental assessment report showing the impact of the Mega Hydro-
Electricity Project 2012 on human life and the subsequent water crisis that it would cause
on the citizens of Applicant No. 2. Secondly, Respondent No. 1 over the years continues
to abuse their position of dominance for reason being the overt dependence of Applicant
58
J. E. DE. ARÉCHAGA, STATE RESPONSIBILITY FOR THE NATIONALIZATION OF FOREIGN-OWNED PROPERTY
(1978).
59
NEWMAN, 222 Va. at 539–40, 281 S.E.2d at 900.
39
No. 2 on the supply of essential commodities required by it.Thirdly, Respondent No. 1
blatantly shunned the State responsibility and obligations bestowed on it under
International Environmental Law.
4.1 THE ABUSE OF DOMINANCE BY RESPONDENT NO. 1
74. Applicant No. 2 being a land locked economy relies heavily on the Respondent60, for it’s
essential commodities which on the other hand has a diversified economy becoming a
favourite destination for FDI and other economic investments for developed nations is on
a path of economic resurgence, being one of the world’s fastest growing economies in
2018.61 The Rio Declaration drew a special emphasis on the environmental rights and
natural resources of people under oppression and domination, protecting such rights.62
75. It is most humbly submitted before this Hon’ble Court that the Respondent has constantly
been exploiting its position of strength in terms of economy and diplomacy. 63 While
entering into the bilateral arrangements for developmental projects, infrastructure
investments and benefit sharing, the Respondent successfully oppresses Applicant No. 2,
by continuing their inherent threats of cutting essential supplies.64
76. In furtherance of Principle 3 of the Rio Declaration on Environment and Development, in
exercising it’s right to development, Applicant No. 2 is forced to enter into such bilateral
projects with the Respondent, the more developed nation, despite such arm-twisting tactics
used by the Respondent. Such development is done so as to equitably meet developmental
and environmental needs of present and future generations.
60
Fact dossier ¶ 4.
61
Fact dossier ¶ 2.
62
Rio Declaration on Environment and Development, Principle 23.
63
Fact dossier ¶ 5.
64
Fact dossier ¶ 6.
40
77. In the instant case not only was 80% of the submerged locality of the dam’s structure
within the jurisdiction of Applicant No. 2, the Special Purpose Vehicle executing and
implementing the project was a 100% subsidiary of a Company incorporated by the
Respondent’s Government. 65 This is directly attributable to the fact the Respondent
indiscriminately uses diplomatic threats towards the lesser developed nation of Applicant
No. 2.
78. An enterprise must establish and maintain a system of environmental management
including:
“a) Collection and evaluation of adequate and timely information regarding the
environmental, health and safety impacts of their activities;
b) Regular monitoring and verification of progress toward environmental, health and
safety objectives or targets.”66
79. According to Principle 17 of the Rio Declaration on Environment and Development, an
Environmental Impact Assessment, is utilised as a national instrument, for a competent
national authority to decide upon the adverse impact on the environment by a proposed
activity.
80. Article 7 clearly places a mandate on each party to ensure that for plans and programmes
subject to strategic environmental assessment, each party must ensure that an
environmental report is prepared. Such environmental report shall must determine,
65
Fact dossier ¶ 9.
66
Environment and the OECD Guidelines for Multinational Enterprises.
41
identify, describe and evaluate the likely significant environmental, including health,
effects of implementing the plan or programme and its reasonable alternatives.67
81. However, in the instant case, not only did the Respondent vehemently flout international
environmental protection principles, they further failed to share the initial Environmental
Assessment Report with Applicant No. 2, assessing the impact of the Mega Hydro-
Electricity Project 2012 on the environment, water crisis as well as the extent of
displacement of the citizens of Applicant No. 2.
82. It is most humbly submitted before this Hon’ble Court that a State is duty bound to provide
prior and timely notification and relevant information to a State that could be potentially
affected by activities that may have a significant adverse transboundary environmental
effect and shall therefore consult with those States at an early stage and in good faith.68
83. The duty rests on the Respondent to make Applicant No. 2 aware of the consequences that
would emerge out of the Mega Hydro-Electricity Project 2012, being funded, executed
and implemented by a company run by the Respondent Government, who also had the
right to control the water level in the dam and release it during the monsoon season.69
84. Therefore, it is most humbly submitted before this Hon’ble Court that the Respondent,
being a more developed nation, on whom Applicant No. 2, solely dependents, has used its
position of advantage to take unfair advantage of Applicant No. 2, causing severe
environmental degradation in the territory of Applicant No. 2.
67
Protocol on Strategic Environmental Assessment to the Convention on Environmental Impact Assessment in a
Transboundary Context, Article 7.
68
Rio Declaration on Environment and Development, Principle 19.
69
Fact dossier ¶ 10.
42
4.2 STATE RESPONSIBILITY AND OBLIGATIONS PLACED ON RESPONDENT NO. 1 UNDER
SUSTAINABLE DEVELOPMENT AND STRICT LIABILITY
85. It is most humbly submitted before this Hon’ble Court that Respondent No. 1 is bestowed
with a larger responsibility of protecting the environment while implementing and
executing the Mega Hydro-Electricity Project as the obligations under the Project were
performed by MHEPC and APCL, a 100% subsidiary of MHEPC. Therefore, the duty
rests on Respondent No. 1 to comply with the international principles of environmental
protection and the duty under sustainable development.
86. It is submitted that the States have an obligation to protect environmental rights, ensuring
the provision of their obligations. It is mandatory to require a prior assessment of the
possible environmental and human rights impacts of policies and projects.
87. Principle 7 of the UN Global Compact states that a business should support a
precautionary approach to environmental challenges.70 While Principle 8 positioned on a
country the obligation to undertake initiatives to promote greater environmental
responsibility. Bridging the gap between these Principles, Principle 9 goes on to encourage
the development and diffusion of environmentally friendly technologies.71
88. Therefore, in order to achieve sustainable development, environmental protection is
required to constitute an integral part of the development process and therefore it cannot
be considered in isolation from it.72
89. The UN Sustainable development, Future we want, placed a larger mandate on States for
the eradication of poverty as an indispensable requirement for sustainable development,
70
UN Sustainable development, Future we want, Principle 7.
71
The ten principles of the UN Global Compact.
72
43
in order to decrease the disparities in standards of living. 73 However, not only did
Respondent No. 1 fail to submit an environmental assessment report insinuating the
impact of the Project on human life, the Project implemented by them led to a severe water
crisis in Oxenberg, a city within Applicant No. 2, being far from the principle of
sustainable development.
90. Furthermore, the United Nations Survey of International Law concluded that there is
“general recognition of the rule that a State must not permit the use of its territory for
purposes injurious to the interests of other States in a manner contrary to international
law”.74
91. Principle 21 of the 1972 Stockholm Declaration expressed in the Trail Smelter
arbitration,75 held that 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.
92. The extraterritorial obligation to protect requires State parties to take steps to prevent and
redress infringements of Covenant rights that occur outside their territories due to the
activities of business entities over which they can exercise control, especially in cases
where the remedies available to victims before the domestic courts of the State where the
harm occurs are unavailable or ineffective.
93. The State obligations under the International Covenant on Economic, Social and Cultural
Rights in the context of business activities placed an extensive obligation on Respondent
No. 1 in the business entity i.e. MHEPC Ltd., a company run by the Government of
73
74
UN Doc. A/CN.4/1/Rev.1, at 34 (1949).
75
941, U.N. Rep. Int’L Arb. Awards 1905.
44
Respondent No. 1, to exercise control over the growing impact of these business activities
on the enjoyment of rights relating to health, housing, food, water etc.
94. Therefore, it is most humbly submitted before this Hon’ble Court that Applicant No. 2
was forced to regulate the APCL that is domiciled in its territory and incorporated under
its laws. This power of nationalisation is drawn from the principle of extraterritorial
obligation 76 of a State particularly where such unprecedented circumstances causes
serious global changes brought due to the climatic and other environment degrading
conditions.
95. It is a recognized principle of International Law that poverty eradication, changing
unsustainable and promoting sustainable patterns of consumption and production and
protecting and managing the natural resource base of economic and social development
are the overarching objectives of and essential requirements for sustainable development.
96. Such sustainable development can be achieved by promoting sustained, inclusive and
equitable economic growth, creating greater opportunities for all, reducing inequalities,
raising basic standards of living, fostering equitable social development and inclusion, and
promoting integrated and sustainable management of natural resources and ecosystems
that supports, inter alia, economic, social and human development while facilitating
ecosystem conservation.77
97. It is further submitted before this Hon’ble Court that the polluter pays principle holds the
polluter who creates an environmental harm liable to pay compensation and the costs to
76
GENERAL COMMENT NO. 24 (2017) ON STATE OBLIGATIONS UNDER THE INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE CONTEXT OF BUSINESS ACTIVITIES.
77
UN Sustainable development, Future we want.
45
remedy that harm. This principle was set out by OECD78 as the most efficient way of
allocating the costs of pollution prevention and control measures so as to encourage the
rational use of scarce environmental resources.
98. In Indian Council for Enviro-Legal Action v. Union of India 79 and Vellore Citizens
Welfare Forum v. Union of India80, the Supreme Court of India held that the polluter pays
principle was a sound principle, confirming that the “precautionary principle and the
polluter pays principle have been accepted as part of the law of the land.
99. Additionally, the various conventions of International law, articulate the responsibility of
environmental degradation and pollution on the operator of the activity, making the
sponsoring State liable for any harm caused.
100.In light of the aforementioned principles it is most humbly submitted before this Hon’ble
Court that Respondent No. 1 used the Mega Hydro-Electricity Development Agreement
to exploit the natural resources of Applicant No. 2 under the pretext of such an unequitable
developmental project where instead of facilitating the development within the
jurisdiction of Petitioner No 2, the basic aim of the project seems to be the eradication of
energy scarcity and issues of water flooding during the monsoon season81 in Respondent
No. 1.
78
“The implementation of the polluter-pays principle”, reproduced in OECD and the Environment
79
Indian Council for Enviro-Legal Action v. Union of India, 1996 AIR 1446.
80
Vellore Citizens Welfare Forum v. Union of India, 1996 (5) SCC 647.
81
Fact dossier ¶ 12.
46
PRAYER
In the light of the issues raised, arguments advanced, and authorities cited it is most humbly
prayed before this Hon’ble Court to hold, adjudge and declare that:
1. The ICJ has the jurisdiction to adjudicate upon the status and protection of the
‘displaced people’ from Applicant No. 2.
2. The displaced people from Applicant No. 2 are Climate Refugees.
3. Mrs. Irwin and her sons must not be deported back to Respondent No. 2.
4. The nationalisation of the APCL by Applicant No. 2 is justified.
5. Respondent No. 1 is liable for the unprecedented circumstances in Applicant No. 2 and
global changes.
Or Pass any other order that this Hon’ble Court may deem fit in the interest of Justice and
Good Conscience.
For this act of kindness, the Counsel for the Applicants shall duty bound forever pray.
All of which is most humbly submitted.
Counsel for Applicants Sd/-
47

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SR05

BEFORE THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

4TH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION –

INTERNATIONAL ROUND, 2019

UNHRC AND APPLICANT NO. 2

(“APPLICANT NO. 1 AND APPLICANT NO. 2”)

RESPONDENT NO. 1 AND RESPONDENT NO. 2

(“RESPONDENT NO. 1 AND RESPONDENT NO. 2”)

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANTS

CONTENTS PAGE. NO.

2. INDEX OF AUTHORITIES 3-6

4. STATEMENT OF FACTS 8-15

6. SUMMARY OF PLEADINGS 17-18

1. The ICJ has jurisdiction to adjudicate upon the status and

protection of ‘displaced people’ from Petitioner No. 1

2. The people displaced owing to the development of Mega Hydro-

electricity Project-2002 are Climate Refugees.

3. The nationalization of APCL is lawful.

4. Respondent No. 1 is solely responsible for the environmental

degradation in and around the Indic-Eden Sub-Continent?

3. J.B. v Canada, Oct 22 1992, CCPR/C/46/D/255/1987. ………………………………21

5. Njamba and Balikosa v. SwRespondent No. 1, No. 322/2007 (2010), CEDAW,

General Recommendation No. 32, para 23. ……………………………………….28

6. NS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). …………………………………..30

7. TOPCO v. Libya (1978) 17 ILM 1 at 59. ………………………………………….37

1. 1951 Convention Relating to the Status of Refugees. ………………………………28

2. Charter of Economic Rights and Duties of States. ………………………………….39

3. Convention on the Elimination of All Forms of Discrimination against Women. .....22

for Economic Co-operation and Development. ……………………………………...41

5. International Convention on Civil and Political Rights. ………………………….20,32

1. Rio Declaration on Environment and Development. …………………………40,41,42

1. Protocol on Strategic Environmental Assessment to the Convention on Environmental

Impact Assessment in a Transboundary Context. …………………………………42

2. UN Sustainable development, Future we want. ………………………………43,44,46

1. 5 CONGRESSIONAL RESEARCH SERVICE, “TEMPORARY PROTECTED STATUS: CURRENT

IMMIGRATION POLICY AND ISSUES,” (2015). ………………………………………30

3. D. M ROSENBERG, GLOBAL-SCALE ENVIRONMENTAL EFFECTS OF HYDRO- LOGICAL

ALTERATIONS (2000). ………………………………………………………………36

4. G. WHITE, NATIONALISATION OF FOREIGN PROPERTY 10 ( Stevens & Sons Ltd.. London

5. GENERAL COMMENT NO. 24 (2017) ON STATE OBLIGATIONS UNDER THE INTERNATIONAL

COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN THE CONTEXT OF

BUSINESS ACTIVITIES. ……………………………………………………………..…45

6. GHASSEMI ALI, EXPROPRIATION OF FOREIGN PROPERTY IN INTERNATIONAL LAW,

UNIVERSITY OF HULL (Jun.1999). ………………………………………………..…37

7. J. E. DE. ARÉCHAGA, STATE RESPONSIBILITY FOR THE NATIONALIZATION OF FOREIGN-

OWNED PROPERTY (1978). ……………………………………………………….…39

8. JOANNA APAP, THE CONCEPT OF 'CLIMATE REFUGEE' TOWARDS A POSSIBLE DEFINITION

(PE 621.893 – Jan. 2019). ……………………………………………………….….25

10 (TRANSNATIONAL PUBLISHERS, 1984). …………………………………………...21

10. L.BERGA , ROLE OF HYDROPOWER IN CLIMATE CHANGE MITIGATION AND ADAPTATION:

A REVIEW (2016). ……………………………………………………………………34

12. NEWMAN, 222 Va. at 539–40, 281 S.E.2d at 900. ……………………………………39

Books, 2001). ………………………………………………………………………..35

CHANGE (2017). ……………………………………………………………………..26

15. PHYLLIS COVEN, CONSIDERATIONS FOR ASYLUM OFFICERS ADJUDICATING ASYLUM

CLAIMS FROM WOMEN, MEMORANDUM TO ALL INS ASYLUM OFFICERS, HQASM

COORDINATORS, 4 (1995). …………………………………………………………...31

16. RICHARD BLACK, ENVIRONMENTAL REFUGEES: MYTH OR REALITY? (2001). ………25

17. SANYA SAMTANI , DEPORTING ROHINGYA REFUGEES: INDIAN SUPREME COURT

VIOLATES PRINCIPLE OF NON-REFOULEMENT (2018). ………………………………28

1. 941, U.N. Rep. Int’L Arb. Awards 1905. …………………………………………..44

2. INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS : LEGAL