TEAM CODE: O

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

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

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

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

WRITTEN SUBMISSION FOR THE RESPONDENTS

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

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INDEX

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

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

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

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

ANESIANS

ARE NOT

RATANKAIANS

BUT REFUGEES AND NEED TO BE

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

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

COMITY OBLIGATIONS UNDER

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

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INDEX OF AUTHORITIES

I.

UN DOCUMENTS AND RESOLUTIONS

Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) ........... 2, 8, 11 Conclusion No. 22 (XXXII), 1981 ................................................................................... 15 Declaration of the Right to Development (G.A.Res. 41/128) (Dec.4, 1986) ..................... 1 Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec.14, 1962)................................................................................................................................ 1 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. G.A.O.R., 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001).................................................................. 5, 11 General Assembly resolution 2200A (XXI) of 16 December 1966 ................................. 17 Letters from U.S. Secretary of State Daniel Webster to British Minister Mr. Fox, 29 BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41). ................................................... 6 R. Ago, The Internationally Wrongful Act of the State, Source of International Responsibility, Eighth Report on State Responsibility, Addendum (1980), ILC, 32
nd

sess., UN Doc. A/CN.4/318/Add.5, 8 ............................................................................. 8 Report of the ILC (1980), UN Doc. A/35/10 .................................................................. 6, 7 Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev. (1992) .............................................................................................................................. 1
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See Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago, U.N. Doc. A/CN.4/318/ADD.5-7, reprinted in 1980 Y.B. INT'L L. COMM'N vol. II, pt. 1, 13, 16, para. 7, U.N. Doc. A/CN.4/SER.A/1980/Add.l (Part 1) ..................................... 8 Standing Committee, Progress Report on Informal Consultations on the Provision of International Protection to All Who Need It, UN Doc. EC/47/SC/CRP.27, 30 May 1997 at Section II, Paras. 4-5 ........................................................................................ 15 Stockholm Declaration on the Human Environment, U.N. Doc. /CONF.48/14/Rev.1 (1973) .............................................................................................................................. 1 The 1966 Bangkok principles Concerning Treatment of Refugees .................................. 16 The 1984 Cartenga Declaration on Refugees ................................................................... 16 UN Secretary General, Rio Declaration on Environment and Development: Application, UN Doc. E/CN.17/1997/8 ............................................................................................... 1 United Nations Conference on Environment and Development, June 3-14, 1992, ............ 1 United Nations Conference on the Human Environment, June 1-16, 1972........................ 1 Yearbook of the ILC, 1961, vol. II ...................................................................................... 2 II. JUDICIAL DECISIONS

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 65......................................................................................................................................... 6 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79.............................. 1 Diversion of the Waters from the Meuse case, recognizing equity as a part of international law: (1937) PCIJ Ser. A/B, No. 70, 76-7..3 Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7 ................................ 6, 7, 8, 9 Greenland v. Chaplin, (1850) 5 Ex. 243 ........................................................................... 19
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Judge v. Canada, Communication No. 829/1998, Views 20 Oct. 2003, UN Doc. CCPR/ C/78/D/829/1998 ........................................................................................................... 17 Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488-489 ....................................... 19 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986 I.C.J. 14 ........................................................................................................................... 6 Ng v. Canada, Communication No. 469/1991, Views 7 Jan. 1994, UN Doc. CCPR/C/49/D/469/1991................................................................................................ 17 North Se Continental Shelf Case, (1982) ICJ Reports 18 ................................................... 3 Nuclear Weapons Advisory Opinion, 1996 I.C.J. 241, 242, U 29...................................... 8 Pacific Fur Seals Arbitration, (1893) in J. B. MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I, 826 (Washington, DC, 1898) .......................................................................................... 6 Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74........ 5 Rigby v. Hewitt, (1850) 5 Ex. 240 .................................................................................... 19 III. BOOKS AND TREATISES

A. Cassese (Ed.), The Current Regulation Of The Use Of Force 247, 250-51 (1986) ..... 10 A. MCNAIR, THE LAW OF TREATIES 508, 516-18 (1961);..13 A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW 266-67, 276, 302-03 (1985). ...13 ALINE CHALUFOUR, LE STATUT JURISDIQUE DES FORCE ALLIES PENDANT LA GUERRE 1927 (1914-1918) .......................................................................................................... 13 G. S. GOODWIN-GILL AND S. TALMON, THE REALITY OF INTERNATIONAL LAW; ESSAYS IN HONOUR OF IAN BROWNLIE 401 (Oxford University Press, 1999) ................................. 6
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G. S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 166-167 (2nd ed., 1996) 16 G. SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAW, 21 (6th ed., 1976) ........... 13 GUNNEL STENBERG, NORT-EXPULSION AND NON-REFOULEMENT, 288 (1989)................ 16 HALL, INTERNATIONAL LAW 7th Edition, Sec. 56.............................................................. 13 I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 614-15 (3rd ed., 1979) ........ 13 J. MAKARCZYK, (ED.), ESSAYS IN HONOUR OF JUDGE MANFRED LACHS 250 (Martinus Nij-hoff, 1984). ............................................................................................................... 7 J. B. MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I, 826 (Washington, DC, 1898)..................... 6 JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARY 183 (2002)........................ 7 L.B. SOHN AND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992) ......................................................................................................................... 18 LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW 107 (6th ed.) ....................................... 13 MALCOLM N. SHAW, INTERNATIONAL LAW 1031 (5th ed., 2003) ....................................... 6 M. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES at 213-14 (1985) ......... 13 OPPENHEIM'S INTERNATIONAL LAW 1155 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 2003). .................................................................................................................. 12 PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 101 ........ 4 R. PLENDER, INTERNATIONAL MIGRATION LAW (1998) .................................................... 18 SUSTAINABLE DEVELOPMENT AND GOOD GOVERNANCE 322, 333-34 (Konrad Ginther et al. eds., 1995 .................................................................................................................... 4 VAN PANHUYS, THE ROLE OF NATIONALITY IN INTERNATIONAL LAW (1959) .................. 18

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WESTLAKE, INTERNATIONAL LAW 265 (edition 1919) ...................................................... 13 WHEATON ELEMENTS OF INTERNATIONAL LAW 95 & 99 ................................................. 13 YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 184 ....................................... 6

IV.

ARTICLE AND JOURNALS

Caroline Foster, Necessity and Precaution in International Law: Responding to Oblique Forms of Urgency, 23 NZULR 265 (2008), 266. .................................................................. 7 Adrian A. Barham, The Establishment And Conduct Of Extra-Territorial Military Bases In Peacetime-Some International Law Considerations, 31 B. L. J. 7 (1999), 15 .............. 13 Andreas Laursen, The Use of Force and (the State of) Necessity, 37 VAND. J. TRANSNATL L. 485 2004, 491 ........................................................................................ 6 Bathurst, Jurisdiction over friendly armed forces, the American Law, 23 B. Y. B. I. L., 339. ................................................................................................................................ 13 Daniel Dobos, The Necessity Of Precaution: The Future Of Ecological Necessity And The precautionary Principle, 13 FORDHAM ENVTL. L.J. 375 (2002), 381 ...................... 9 Ian Brownlie & C.J. Apperley, Kosovo Crisis Inquiry: Memorandum on the International Law Aspects, 49 INT'L & COMP. L.Q. 878 (2000), 903.................................................. 11 John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 31 A.JI.L. 291, 293 ..................................................................................... 1 Justice Jitendra N. Bhatt, Dynamics and Dimensions of Doctrine of Desuetude, (2004) 4 SCC (Jour) 21 ................................................................................................................ 13 King, Further Developments concerning jurisdiction over friendly armed forces, 40 AJIL 257; Schwelb ................................................................................................................. 13

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King, Jurisdiction over friendly armed forces, 36 AJIL, 539........................................... 13 O. Schacter, The Right of States to Use Armed Force, 82 MICH.L.R. 1620 (1984), 1631. ....................................................................................................................................... 10 Ole Spiermann, Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens, 71 NORDIC JOURNAL OF INTERNATIONAL LAW 523 (2002), 525 ..................... 11 Oscar Schachter, The Emergence of International Environmental Law, 44 J. INTL AFF. 457 (1991), 462- 63 ......................................................................................................... 1 R. Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3 YALE HUM. RTS & DEVELOPMENT L. J. 15 & 26 (2000) ............................................. 3, 7 R. Falk, The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent States, 5 HOW. L. J. 163 (1959), 167......................................................... 11 Tom Clark, Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation, 16 INTL J. REFUGEE L. 584 (2004), 589. .................. 15, 17 William C.G. Burns, Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention.

http://policy.miis.edu/programs/BurnsFT.pdf <last accessed on 6/01/09> .................... 2

V.

MISCELLANEOUS DOCUMENTS

United Nation Framework Convention on Climate Change ............................................... 2 Letters from U.S. Secretary of State Daniel Webster to British Minister Mr. Fox, 29 BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41). .................................................. 6 GENEVA CONVENTION ON THE STATUS OF refugee, 1951 .................................................. 16 The International Covenant on Civil and Political Rights, available at

http://www2.ohchr.org/english/bodies/hrc/index.htm, <last accessed on 6/1/2009> ... 17

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The Organization of African States Convention Governing the Specific Aspects of Refugees Problems in Africa 1969 (OAU Convention)................................................ 16 United Nations Charter, as amended June 26, 1945, 892 U.N.T.S.

119....1 United Nations Convention on the Law Sea, opened for signature Dec. 10, 1983, 1833 U.N.T.S. 331, Art.193..1 United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 1081

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STATEMENT OF JURISDICTION

The Republics of Ratanka and Caristhan humbly submit to the jurisdiction of the International Court of Justice for final resolution in the present dispute between the Republic of Anghore and the Republics of Ratanka and Caristhan. The Courts jurisdiction is invoked under Article 36(1) read with Article 40(1) of the Statute of the International Court of Justice, 1950.

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SYNOPSIS OF FACTS

RATANKA: Ratanka is a mountainous nation from where the Mithali River emerges. Its people have traditionally been involved in subsistence farming and animal husbandry. They have generally belonged to a single ethnic and religious group, which is one of the reasons attributed to the 500years of peace there. In the last 50 years the government has built a mixed economy which has improved the life of atleast 30% of the people.

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

CARISTHAN: Caristhan is a coastal country neighbouring Ratanka. It is prosperous with a total population of 14 million and has a similar type of economy as Anghore. Historically it has had trade relations with countries world-wide and to safeguard its trade it also had a strong military. Ratankians and Caristhanis, although neighbours, are two distinct ethnic groups with no linkages to each other.

CLIMATIC CHANGE: Climatic change has happened in the region affecting Ratanka the most. The climatic change has been attributed to global warming coupled with the 200 years of industrial activity in Anghore and to some degrees in Caristhan. This has resulted in the melting of the Ratankian Glacier and shrinking of the Transeian River.
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Climate change with deforestation has caused many flash floods too. Although, now Anghore has championed the cause of environmental protection by changing regulations on economic activity and use of eco-friendly technology. All these environmental changes had a huge impact on a small minority called the Anseians living in the forests for more than 1,200 years. Their citizenship is in doubt, although; there exists a treaty signed 200 years ago by Ratanka to exercise sovereignty over the Anseians. In the last few years they have come out of the forest but have found it tough to integrate into the Ratankian society.

ECONOMIC AND MILITARY EXPANSION: In 2003, Caristhan as part of its aggressive policy of military and trade expansion decided to provide Ratanka a USD 20 billion aid for setting up chemical, hydro-electricity, and wind energy units. This also included the Monron factory, which is the largest chemical unit in the region. Some of these units took technical assistance from Caristhan although due to ostensible national interest concerns, specifics were not disclosed. Caristhan was also allowed to open a military base-supporting 1,00,000 personnel- in Ratanka and also awarded few oil blocks.

THE DISASTER: In 2007, incessant rainfall with the environmental changes caused a humanitarian crisis in Ratanka. But before it could recover it was hit by renewed rains which resulted in flash floods which also destroyed the Monron Factory, thereby causing an environmental disaster. Although the floods subsided in 24 hours the chemicals contaminated the Mithali River and entered the Transeian forest as well as Anghore. It was widely believed that contamination of the Mithali River would slip the recession.

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REFUGEE INFLUX: Due to the wide spread destruction in Ratanka the Anesians moved out of the Transeian forest into Anghore. Although they had set up temporary camps for the Anseians, Anghore clarified that Anesians were Ratankians, not refugees and Ratanka should take them back. It also wanted compensation from Ratanka and Caristhan for the environmental disater as well as the costs that it had incurred on the welfare of the Anseians. Ratanka dismissed the demands for compensation, stating it to be a natural disaster. It also said that Anesians were not Ratankians. Caristhan in response only issued a press briefing saying that it had no role to play.

MILITARY ACTION: Meanwhile the contaminated Mithali flowing from Anghore was on the door step of Caristhan. Caristhan sensing the veracity of such a situation asked Anghore to allow its scientists into Anghore so as to conduct a few tests. But Anghore demanded that Caristhan first acknowledge responsibility then only it will allow its scientists. With time ticking away, Caristhan ordered its military personnel based in Ratanka to provide protection to its scientists to conduct tests, although, after three days the Caristhani military withdrew from Anghores territory.

BONE OF CONTENTION: Anghore was upset at this development and clarified that environmental damage cannot be a justification for violation of sovereignty. The relations between Anghore and Ratanka, and, Anghore and Caristhan started to deteriorate. Anghore insisted that Ratanka and Caristhan should bear Joint responsibility for the

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Economic Disaster. All the parties have decided to accept the Jurisdiction of the International court of Justice and argue on the merits of the dispute.

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SUMMARY OF ARGUMENTS

I. RATANKA AND CARISTHAN BEAR NO RESPONSIBILITY WHATSOEVER FOR THE ENVIRONMENTAL DAMAGE, AND HENCE, CANNOT BE HELD LIABLE TO PAY ANY COMPENSATION A.] THAT RATANKA REALIZES THE IMPORTANCE OF PROTECTION OF ENVIRONMENT AND HAS COMPLIED WITH ALL ITS INTERNATIONAL OBLIGATIONS. B.] THAT THE ENVIRONMENTAL DISASTER WAS A RESULT OF UNSEASONAL RAINS AND FLASH FLOODS, I.E. FORCE MAJEURE, FOR WHICH RATANKA CANNOT BE MADE LIABLE. C.] THAT ANGHORES OWN RESPONSIBILITY IN CAUSING THE CLIMATIC CHANGES IN THE REGION, WHICH RESULTED IN THE PRESENT ENVIRONMENTAL DISASTER, UNDERMINES ANY CLAIM IT SEEKS TO ESTABLISH AGAINST RATANKA. D.] THAT CARISTHAN HAS NO DIRECT OR INDIRECT ROLE IN THE DAMAGE CAUSED AND CANNOT BE HELD INTERNATIONALLY LIABLE FOR THE SAME. D1.] THAT The disaster cannot be spelled out as a consequence of Caristhans aid to Ratanka. D2.] THAT Imputing liability on Caristhan is inconsistent with the principles of international liability. II. THAT RATANKA AND CARISTHAN ARE NOT RESPONSIBLE FOR THE VIOLATION OF

ANGHORES TERRITORIAL SOVEREIGNTY

A.] THAT CARISTHAN IS NOT RESPONSIBLE FOR VIOLATION OF ANGHORES TERRITORIALSOVEREIGNTY AS THERE WAS THE SITUATION OF NECESSITY A.1] Defence of necessity under customary international law
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A.2] Defence of necessity under Conventional International law B.] THAT THE USE OF MILITARY BASES BY CARISTHN IN RANTANKAN TERRITORY DOES NOT CAST ANY RESPONSIBILITY ON RATANKA B.1] That the act of Caristhans Military is not attributable to Ratanka

III. THAT THE ANESIANS ARE NOT RATANKAIANS BUT REFUGEES AND NEED
TO BE PROTECTED BY ANGHORE

A.] THAT THE ANESIANS ARE NOT RATANKAIANS B. ]THAT THE ANESIANS ARE REFUGEES AND THEREFORE, THEY ARE ENTITLED TO
REFUGEE PROTECTION IN ANGHORE.

B.1] That the Anseians are Refugess B.2] That the Anseians should be provided protection C.] THAT
UNDER

HUMAN RIGHTS NORMS, ANGHORE

IS OBLIGATED TO PROVIDE

PROTECTION TO ANSIEANS

D.] IN ARGUENDO, EVEN IF ANSEAINS ARE RATANKAIANS THEN ALSO ANGHORE CANNOT
EXPEL THEM FROM ITS TERRITORY

E.] THAT RATANKA AND CARISTHAN ARE UNDER NO OBLIGATION TO PAY COMPENSATION
TO ANGHORE FOR THE COST INCURRED BY IT ON THE WELFARE OF ANSEIANS.

IV. THAT CARISTHAN HAS NOT VIOLATED ITS COMITY OBLIGATIONS UNDER INTERNATIONAL LAW
A.] COMITY IS NOT A RULE OF LAW. B.] IN ARGUENDO, EVEN IF COMITY IS A RULE OF LAW, THEN ALSO CARISTHAN HAS NOT
VIOLATED ITS COMITY OBLIGATIONS

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BODY OF ARGUMENTS I. That Ratanka and Caristhan bear no responsibility whatsoever for the environmental damage, and hence, cannot be held liable to pay any compensation A. That Ratanka realizes the importance of protection of environment and has complied with all its international obligations. A State has, in accordance with principles of international law, the sovereign right to exploit their own resources according to their own environmental and developmental policies.1 Concurrently a State has a responsibility to avoid contribution to transboundary harm.2 This responsibility is often considered customary international law, but is very broad in its scope.3 The idea that all transboundary environmental harm should be presumptively unlawful is generally rejected:4 To say that a state has no right to injure the environment of another seems quixotic in the face of the greater variety of transborder and environmental harms that occur every day.5 Rather than an absolute prohibition, the

United Nations Charter, as amended June 26, 1945, 892 U.N.T.S. 119; United Nations Conference on the Human Environment, June 1-16, 1972, Stockholm Declaration on the Human Environment, U.N. Doc. /CONF.48/14/Rev.1 (1973), Principle 21 [hereinafter Stockholm Declaration]; United Nations Conference on Environment and Development, June 3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF. 151/5/Rev. (1992), Principle 2 [hereinafter Rio Declaration]; Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, Art. 27 [hereinafter CBD]; Declaration of the Right to Development (G.A.Res. 41/128) (Dec.4, 1986), Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec.14, 1962); United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 108 [hereinafter UNFCC]; United Nations Convention on the Law Sea, opened for signature Dec. 10, 1983, 1833 U.N.T.S. 331, Art.193 (entered into force Nov. 16, 1994) [hereinafter UNCLOS], 2 Id 3 John H. Knox, The Myth and Reality of Transboundary Environmental Impact Assessment, 31 A.JI.L. 291, 293, citing UN Secretary General, Rio Declaration on Environment and Development: Application, UN Doc. E/CN.17/1997/8, para. 23. 4 Id. 5 Id. at 293, citing Oscar Schachter, The Emergence of International Environmental Law, 44 J. INTL AFF. 457 (1991), 462- 63.

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principle of pact sunt servanda requires States to abide by customary international law in good faith.6 Even the obligation that States must take precautionary action, in the absence of full scientific certainty as to the occurrence of a particular contingency, only requires States to take cost-effective measures for environmental protection.7 Ratanka had put in place latest international safety standards for its factory, had taken due care in complying with its responsibilities under all environment related norms and principles, and had notified Anghore immediately after the chemical leakage. Therefore, Ratanka has not violated any obligation regarding transboundary harm.

B. That the environmental disaster was a result of unseasonal rains and flash floods, i.e. force majeure, for which Ratanka cannot be made liable. Force majeure has long been accepted as precluding wrongfulness8 in international law. Article 23 of the ILC Articles9 provides for the preclusion of the wrongfulness where the act was due to the occurrence of an irresistible force or of an unforeseen event beyond the control of the state, making it materially impossible in the circumstances to perform obligation. A situation of force majeure precluding wrongfulness only arises where three elements are met: (a) the act in question must be
William C.G. Burns, Potential Causes of Action for Climate Change Damages in International Fora: The Law of the Sea Convention. http://policy.miis.edu/programs/BurnsFT.pdf <last accessed on 6/01/09> 7 Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992), Principle 15, United Nation Framework Convention on Climate Change, opened for signature May 9, 1992, Article 14(1), 31 ILM 849, Article 3(3) 8 Yearbook of the ILC, 1961, vol. II, p.46; Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 81, U.N. Doc. A/56/10 (2001) [hereinafter ILC Commentary], at p.183. 9 Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of Its Fifty-third Session, U.N. GAOR, 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), Art. 1
6

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brought about by an irresistible force or an unforeseen event, (b) which is beyond the control of the State concerned, and (c) which makes it materially impossible in the circumstances to perform the obligation. Ratankas failure to prevent the environmental damage was due not to negligence but to genuine inability to take action in the face of a sudden situation. It had acted with diligence and carefulness in maintaining its safety standards. Subsequently, unseasonal rains for over a month, and a massive flood hit the state, causing large scale damage and destruction. The magnitude of these rains and the flood could not have been anticipated by Ratanka. Ratanka cannot be held financially liable for harms in Anghore that resulted from an unforeseeable natural disaster. C. That Anghores own responsibility in causing the climatic changes in the region, which resulted in the present environmental disaster, undermines any claim it seeks to establish against Ratanka. According to the Statute of the International Court of Justice (ICJ), 'general principles of law recognized by civilized nations,' such as principles of equity are considered to be a subsidiary source of international law.10 In the North Sea Continental Shelf cases, the ICJ described the concept of equity as being a direct emanation of the idea of justice and a general principle directly applicable as law which should be applied as part of international law to balance up the various considerations which it regards as relevant in order to produce an equitable result.11 Considerations of equity demand that Anghore owns up its role in the natural disaster itself, which has resulted
10 11

Article 38 of the Statute of the International Court of Justice (1945). North Se Continental Shelf Case, (1982) ICJ Reports 18. Individual opinion of Judge Hudson in the Diversion of the Waters from the Meuse case, recognizing equity as a part of international law: (1937) PCIJ Ser. A/B, No. 70, 76-7.

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

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an indication that it had provided technical assistance to Monron factory. A mere inference on Anghores part cannot be used as the basis to impute international liability on Caristhan. Further, even in face of severe rains and massive flood, the oil drilling units that had been set up by Caristhan withstood the effect and did not suffer destruction. This is a clear evidence of the quality and standard of technology used by Caristhan. Monron factory had not received technical assistance from Caristhan, and suffered severe damage due to the natural disaster. D2. That Imputing liability on Caristhan is inconsistent with the principles of international liability According to Article 2 of the ILC16 Draft articles, there are two elements to be satisfied in order to establish the existence of an internationally wrongful act of the State. First, the conduct in question must be attributable to the State under international law and secondly, for responsibility to attach to the act of the State, the conduct must constitute a breach of an international legal obligation in force for that State at that time.17 In the instant case, as it is mentioned above that the disaster cannot be spelled out as a consequence of Caristhans aid to Ratanka. Caristhan did not provide any assistance to Ratanak in setting up of monron factory and therefore, this environmental damage cannot be attributed to Caristhan. Moreover, Caristhan did not act in any way contrary to its international obligations. Hence, Caristhan has no direct or indirect role in the damage caused and cannot be held internationally liable for the same.

16

Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission, Fifty-Third Session, U.N. G.A.O.R., 56th Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001), [hereinafter ILC Draft Articles], at p. 1. 17 Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74, p. 10., ILC commentary, supra note 8 at p. 12

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II. That Ratanka and Caristhan Are Not Responsible for the Violation of Anghores Territorial Sovereignty A. That Caristhan Is Not Responsible For Violation Of Anghores TerritorialSovereignty As There Was The Situation Of Necessity A.1 Defence of necessity under customary international law The Caroline incident18of 1837, though frequently referred to as an instance of customary right to self-defence19, actually involved the plea of necessity20. The standard of necessity is that, it should be instant, overwhelming and leaving no choice of means and no moment of deliberation.21 This prerequisite of necessity,22 which is a part of customary international law,23 dictates that military force can be used in necessity only when there are no alternative means of redress.24 In the Gabkovo-Nagymaros Project case of 1997, the International Court of Justice clearly expressed that the defence of necessity was in fact recognised by customary international law25 and that it was a ground available to States in order to evade international responsibility for wrongful acts.26

Letters from U.S. Secretary of State Daniel Webster to British Minister Mr. Fox, 29 BRITISH AND FOREIGN STATE PAPERS 1129 (1840-41). 19 YORAM DINSTEIN, WAR, AGGRESSION, AND SELF-DEFENCE 184 (1988). 20 Report of the ILC (1980), UN Doc. A/35/10, 93, para. 24. 21 Supra note 17, Caroline incident, at p. 1137-38, ILC, Draft Articles, supra note 15. 22 MALCOLM N. SHAW, INTERNATIONAL LAW 1031 (5th ed., 2003). 23 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), 1986 I.C.J. 14 176; Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 65, 4. 24 Dinstein, supra note 2, at p. 191. 25 Andreas Laursen, The Use of Force and (the State of) Necessity, 37 VAND. J. TRANSNATL L. 485 2004, 491. 26 Gabkovo-Nagymaros Project case (Hungary v. Slovakia), 1997 I.C.J 7, 40, para. 51; P. Okowa, Defences in the Jurispru-dence of International Tribunals, in G. S. GOODWIN-GILL AND S. TALMON, THE REALITY OF INTERNATIONAL LAW; ESSAYS IN HONOUR OF IAN BROWNLIE 401 (Oxford University Press, 1999); Hungary relied on a state of ecological necessity, Gabkovo-Nagymaros Project case, para 40, and referred to the case of Pacific Fur Seals Arbitration, (1893) in J. B. MOORE, HISTORY AND DIGEST OF THE INTERNATIONAL ARBITRATIONS TO WHICH THE UNITED STATES HAS BEEN A PARTY I, 826 (Washington, DC, 1898).

18

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Moreover, the ICJ set out the elements of the plea of necessity as, it must have been occasioned by an "essential interest" of the State which is the author of the act conflicting with one of its international obligations; that interest must have been threatened by a "grave and imminent peril"; the act being challenged must have been the "only means" of safeguarding that interest; that act must not have "seriously impair[ed] an essential interest" of the State towards which the obligation existed; and the State which is the author of that act must not have "contributed to the occurrence of the state of necessity". Those conditions reflect customary international law.27 A.2 Defence of necessity under Conventional International law This customary principle of defence of necessity has been embodied in Article 2528 of the ILCs draft articles on state responsibility. As per this article a five point criteria needs to be satisfied in order to plea the defence of necessity. A.2.1 Essential Interest The First condition is that necessity may only be invoked to safeguard an essential interest which is to be identified29. But there is no fixed catalogue listing the essential

Laursen , Supra note 24 at p. 501; Caroline Foster, Necessity and Precaution in International Law: Responding to Oblique Forms of Urgency, 23 NZULR 265 (2008), 266. 28 1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: a. is the only means for the State to safeguard an essential interest against a grave and imminent peril; and b. does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole. 2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if: a. The international obligation in question excludes the possibility of invoking necessity; or b. The State has contributed to the situation of necessity. 29 Supra note 19 at para. 32; JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARY 183 (2002); J. J. A. Salmon, Faut-il codifier ltat de ncessit en droit international, in J. MAKARCZYK, (ED.), ESSAYS IN HONOUR OF JUDGE MANFRED LACHS 250 (Martinus Nij-hoff, 1984).

27

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interests a State may refer to.30 It is a well established view that the criterion of essential interest need not concern the very existence of the State;31 and clearly, in principle, it is not limited to matters of life and death, but also extends to the adequate functioning of the State.32 This defence has been invoked to protect a wide variety of interests33, including safeguarding the environment34 and ecological interests.35 The extent to which a given interest is 'essential' depends on all the circumstances, and cannot be prejudged."36 In the instant case, the economy of the Republic of Caristhan is dependent on Mithali River37 and due to the chemical spill; the water is undrinkable and unusable for any human or industrial activity38. The essential interest of Caristhan is to protect its people and its economy from an environmental disaster which has seriously damaged its environment and ecology39. Therefore, it was necessary to take such an action out of necessity in order to safeguard its essential interest. A.2.2 Grave and Imminent Peril

Okowa, Supra note 25; Gabkovo-Nagymaros Project case, 1997 I.C.J., 7, para. 53; Report of the ILC (1980), UN Doc. A/35/10, para. 32. 31 R. Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3 YALE HUM. RTS & DEVELOPMENT L. J. 15 & 26 (2000); Gabkovo-Nagymaros , para. 53. 32 R. Ago, The Internationally Wrongful Act of the State, Source of International Responsibility, Eighth nd Report on State Responsibility, Addendum (1980), ILC, 32 sess., UN Doc. A/CN.4/318/Add.5, 8, para. 2. Report of the ILC (1980), UN Doc. A/35/10, para. 32. 33 ILC Commentary, supra note 8 at p. 145 34 Nuclear Weapons Advisory Opinion, 1996 I.C.J. 241, 242, U 29 35 Gabkovo-Nagymaros, 1997 I.C.J. 7.; Publicist Ago in his report also gives examples of the sort of interests that would satisfy article 33 [now 25], including a State's "political or economic survival, the continued functioning of its essential services, the survival of a sector of its population, and the preservation of the environment of its territory or a part thereof, See Addendum to the Eighth Report on State Responsibility, by Mr. Roberto Ago, U.N. Doc. A/CN.4/318/ADD.5-7, reprinted in 1980 Y.B. INT'L L. COMM'N vol. II, pt. 1, 13, 16, para. 7, U.N. Doc. A/CN.4/SER.A/1980/Add.l (Part 1) [hereinafter Ago Report] para 2 36 Crawford, supra note 28 at p. 183. 37 Compromis, 4. 38 Compromis, 12. 39 Compromis, 16.

30

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The second condition to be satisfied is that the essential interest is to be threatened by a grave and imminent peril. This condition is highly fact-specific.40 The international court of justice declared that the concept of imminence goes far beyond the concept of possibility41. A peril must be imminent in the sense of proximate; however, a peril that appears only in the long term may still be imminent at the point in time when it is established that the realisation of that peril is certain and inevitable, albeit far away.42 The ICJ also stated that the mere apprehension of peril would not suffice; danger must not be merely contingent.43 Regardless, it is required that the invoking State can establish, based on the evidence available at the time, that the threat will at some point inevitably be realised.44 The "peril has to be objectively established and not merely apprehended as possible."45 In the instant case, there is no doubt that the danger was grave. It is also not doubtful that the peril was imminent. A warning was issued that the water of the contaminated Mithali River continued to move downstream and it could enter Caristhan within a month46. It was an established fact which was going to realize inevitably. Therefore, it was right on the part of Caristhan to conduct such actions out of necessity. A.2.3 Only Means to Safeguard Interest Thirdly, the course of action taken must be the only way available to safeguard the essential interest. The plea is excluded if there are other (otherwise lawful) means
Boed, supra note 31 at p. 28. Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7. 42 Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7., at 41-2, para. 54; Boed, Supra note 30 at p. 28; Daniel Dobos, The Necessity Of Precaution: The Future Of Ecological Necessity And The precautionary Principle, 13 FORDHAM ENVTL. L.J. 375 (2002), 381. 43 Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, 41-5, paras. 54-6, Crawford, Supra note, 29 at 183-4; See further the Neptune case, where it was said that (in French translation) la ncessit ne doit pas tre imaginaire elle doit tre relle et pressant, see quote in Salmon, Supra note 28 at p. 253. 44 Crawford, Supra note 12 at p. 184; see Gabkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, 435, para. 56. 45 ILC Commentary, supra note 8 at p. 202. 46 Compromis, 15.
41 40

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available, even if they may be more costly or less convenient.47 In the instant case, Caristhan had exhausted other diplomatic options of safeguarding its essential interest. It acted swiftly in requesting Anghore to provide all support in containing the spread of the spill but Anghore responded by saying that it would provide all assistance but insisted that Caristhan accept responsibility. There was a full possibility of losing precious time in these back and forth of statements between the two nations.48 As Professor Schacter put it, "in a case involving imminent danger., it would be unreasonable to maintain the continued pursuit of peaceful measures.49 Moreover, the time factor in such operations is of extreme importance: speed of action is essential if the operation is to be successful and lives preserved. As has been pointed out, "a failure of peaceful attempts to bring about a solution, leading to a delay in the rescue operation, might actually jeopardize it."50 The only means to safeguard Caristhans essential interest was to carry out the test and since Aghore was not assisting caristhan in containing the spill51, the only option left was to conduct this operation out of. A.2.4 Balancing of Interest Fourthly, it is required that the action does not seriously impair an essential interest of another State.52 This requirement involves the balancing of the competing interests of two States: on the one hand, the interest in the name of which the defending State invokes necessity and, on the other, the harm done to the interest of the State

47 48

Crawford, supra note 29at p. 184; Shaw, supra note 22 at p. 712; Salmon, supra note 29 at p. 245. Supra note 45. 49 O. Schacter, The Right of States to Use Armed Force, 82 MICH.L.R. 1620 (1984), 1631. 50 J. Weiler, Armed Intervention in a Dichotomized World: The Case of Grenada, in A. CASSESE (ED.), THE CURRENT REGULATION OF THE USE OF FORCE 247, 250-51 (1986). 51 Supra note 45. 52 Shaw, supra note 22 at p. 712; Crawford, supra note 29 at p. 184. This was confirmed in GabkovoNagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, at 46, para. 58.

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claiming a breach of international law.53. In the instant case, as already pointed out, the essential interest of Caristhan was to safeguard its ecology, environment and peoples and the same has been recognized as essential interest by the ICJ. On the other hand Anghore is evoking its essential interest of territorial sovereignty. But it is submitted that the lasting benefits of an intervention designed to save lives and environment outweigh temporary impairment of a state's territorial integrity.54 Moreover, territorial sovereignty is not to be considered an 'essential' interest in every case, nor can it only be 'seriously' impaired. In its commentary on Article 25, the International Law Commission55 stressed that 'the interest relied on must outweigh all other considerations, not merely from the point of view of the acting State but on a reasonable assessment of the competing interests.56 On a reasonable assessment Caristhans essential interest clearly outweighied the interest of Anghore as it is definite that the spill was about to enter Caristhan and Anghore was not assisting Caristhan in containing the spill. A.2.5 Contribution to the State of Necessity Pursuant to Article 25, paragraph 2(b)57, necessity may not be invoked by a State as a ground for precluding wrongfulness if the State has contributed to the situation of necessity or provoked, either deliberately or by negligence, the situation to come about.58 The contribution to the situation of necessity must be sufficiently substantial and not merely
R. Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3 YALE HUM. RTS & DEVELOPMENT L. J. 18 (2000). 54 R. Falk, The United States and the Doctrine of Nonintervention in the Internal Affairs of Independent States, 5 HOW. L. J. 163 (1959), 167. 55 Supra note 16. 56 Ole Spiermann, Humanitarian Intervention as a Necessity and the Threat or Use of Jus Cogens, 71 NORDIC JOURNAL OF INTERNATIONAL LAW 523 (2002), 525. In the Gabkovo-Nagymaros case the Court affirmed the need to take into account any countervailing interest of the other State concerned: GabkovoNagymaros (Hungary v. Slovakia), 1997 I.C.J. 7at p. 46, para. 58 57 ILC State responsibility Article, supra note 16. 58 ILC State responsibility Article, supra note 16, Article 25(2)(b); Salmon, supra note 28, at p. 262., Gabcikovo-Nagymarcos Project ((Hungary v. Slovakia.), 1997 I.C.J 7, at 46.
53

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incidental or peripheral.59 As has already been proved, Caristhan was not responsible directly or indirectly in the Monron Factory chemical breach. Therefore, the actions of caristhan clearly established the need to act in the defence of necessity and thus preclude wrongfulness of Caristhan. B. That the Use of Military Bases By Caristhn In Rantankan Territory Does Not Cast Any Responsibility On Ratanka B.1 That the act of Caristhans Military is not attributable to Ratanka According to Article 2 of the ILC60 Draft articles, there are two elements to be identified in order to establish the existence of an internationally wrongful act of the State i.e., first, the conduct in question must be attributable to the State under international law and secondly, for responsibility to attach to the act of the State, the conduct must constitute a breach of an international legal obligation in force for that State at that time.61 According to Oppenheim, Armed forces are organs of the state which maintains them, being created to maintain the independence, authority and safety of the state. They have that status even when on foreign territory, provided that they are there in the service of their state, and not for some private purpose62. Caristhans Military was definitely in the service of its country and therefore, its actions to maintain safety of its country makes it caristhans organ only. Therefore, The Caristhans Military force cannot be attributed to Ratanka, and hence, it is not responsible for the military actions of Caristhan.

59

ILC Commentary, supra note 8 at p. 205, Ian Brownlie & C.J. Apperley, Kosovo Crisis Inquiry: Memorandum on the International Law Aspects, 49 INT'L & COMP. L.Q. 878 (2000), 903 60 ILC Draft Articles, supra note 16 at p. 1. 61 Phosphates in Morocco, Preliminary Objections, 1938, P.C.I.J., Series A/B, No. 74, p. 10., ILC commentary, supra note 8 at p. 12 62 OPPENHEIM'S INTERNATIONAL LAW 1155 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 2003).

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Moreover according to article 863 of the ILC article on state responsibility, for an
act to be attributable on a state, that state must have control over it. The ICJ stated in the

Namibia case64 that, "Physical control of a territory and not sovereignty or legitimacy of title, is the basis of state liability for acts affecting other states65. Further, according to many jurists66, the overriding principle in this field is that, any force operating on a foreign soil is in no way subject to the territorial sovereign and exercises an exclusive right of jurisdiction over its members.67 Therefore, the use of military base in Ratanka also does not cast any responsibility on Ratanka as it does not have any control over that military base and its activities. III. That the Anesians are not Ratankaians but refugees and need to be protected by Anghore A. That the Anesians are not Ratankaians It is stated that Anesians are not Ratankians as the treaty68 purporting to establish the sovereignty of Anesians on Ratanka is vitiated by the application of the Doctrine of Desuetude. In international law, the long standing and consistent practice by parties to

ILC Draft Articles, supra note 16 at p. 3. 1971 I.C.J. Rep. 16, p.54. 65 Adrian A. Barham, The Establishment And Conduct Of Extra-Territorial Military Bases In PeacetimeSome International Law Considerations, 31 B. L. J. 7 (1999), 15. 66 ALINE CHALUFOUR, LE STATUT JURISDIQUE DES FORCE ALLIES PENDANT LA GUERRE 1927 (1914-1918); LAWRENCE, PRINCIPLES OF INTERNATIONAL LAW 107 (6th ed.); Bathurst, Jurisdiction over friendly armed forces, the American Law, 23 B. Y. B. I. L., 339. 67 WHEATON ELEMENTS OF INTERNATIONAL LAW 95 & 99; WESTLAKE, INTERNATIONAL LAW 265 (edition 1919); HALL, INTERNATIONAL LAW 7th Edition, Sec. 56; King, Jurisdiction over friendly armed forces, 36 AJIL, 539; King, Further Developments concerning jurisdiction over friendly armed forces, 40 AJIL 257; Schwelb, the Jurisdiction Over the Members of the Allied Forces in ret Britaint, Cezch Year Book of International Law, 1942, p. 147. 68 Compromis, 7.
64

63

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a treaty inconsistent with the treaty can have the effect of terminating the treaty69. This is the crux of the Doctrine of desuetude. In Committee on Legal Ethics v. Printz70, the Supreme Court of Appeals of West Virginia postulated a methodology for determining whether a rule or instrument of law had fallen into desuetude. The main criteria were that (a) there must be open, notorious, and pervasive violation for a long period; and (b) there must be a conspicuous policy of non-enforcement71. The Anesians have never claimed any citizenship72. This act of not claiming any citizenship is clearly inconsistent with the treaty which envisages the Anesians to be under Ratankan sovereignty. Hence, it can be validly deduced that the act of the Anesians not to stake a claim on citizenship rights even two hundred years73 after the signing of the treaty is ample proof of open, notorious and pervasive violation for a long period. Further, there has been difficulty in determining Citizenship of the Anesians74. Legal experts view that there is doubt as to whose citizens they really are75. It can be stated that there is indetermination with regard to the citizenship of Anesians both in Ratanka and Anghore even after a treaty placing the Anesians under Ratankan Sovereignty, which is a clear pointer towards the non-enforcement of that treaty. This indetermination continues even after 200 years of the signing of the treaty, amply proving the presence of a

69

Justice Jitendra N. Bhatt, Dynamics and Dimensions of Doctrine of Desuetude, (2004) 4 SCC (Jour) 21; I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 614-15 (3rd ed., 1979); G. SCHWARZENBERGER, A MANUAL OF INTERNATIONAL LAW, 21 (6th ed., 1976); A. VAMVOUKOS, TERMINATION OF TREATIES IN INTERNATIONAL LAW 266-67, 276, 302-03 (1985); A. MCNAIR, THE LAW OF TREATIES 508, 516-18 (1961); M. VILLIGER, CUSTOMARY INTERNATIONAL LAW AND TREATIES at 213-14 (1985). 70 416 S.E.2d 720 (W. Va. 1992). 71 Ibid at p. 726. 72 Compromis, 7. 73 Ibid. 74 Ibid. 75 ibid.

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conspicuous policy of non-enforcement. Hence, the treaty has fallen into desuetude and as such stands nullified. Therefore, Anesians are not Ratankians. B. That the Anesians are Refugees and therefore, they are entitled to refugee protection in Anghore. B.1 That the Anseians are Refugess It is stated that as per Conclusion No 2276 of the Executive Committee (EXCOM) of the UNHCR's77 program, States are obligated to protect asylum seekers in large scale influxes78. The EXCOM Conclusion No 22 basically mandates that for the purposes of the application of Article 33 of the Refugee Convention every person migrated by large scale influx shall be conferred with the refugee status79. A similar situation is present here as more than 1,00,000 lakh Anesians have crossed into Anghore80. Therefore, these Anesians shall be treated as Refugees. B.2 That the Anseians should be provided protection According to Article 33 of the Geneva Convention relating to the status of Refugee 1951, which concerns the principle of Non-refoulement, a receiving State cannot

Standing Committee, Progress Report on Informal Consultations on the Provision of International Protection to All Who Need It, UN Doc. EC/47/SC/CRP.27, 30 May 1997 at Section II, Paras. 4-5 (called Standing Committee 1997). 77 The EXCOM is a distinct body of the UN and its Conclusions have interpretive value for the 1951 Refugee Convention, Elihu Lauterpacht and Daniel Bethlehem, The Scope and Content of the Principle of Non-Refoulemmt Opinion, in ERIKA FELLER, VOLKER TURK AND FRANCES NICHOLSON (EDS.), Refugee Protection in International Law 28-29 (Cambridge University Press, 2003). 78 Conclusion No. 22 (XXXII), 1 981, GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 480-483 (2nd Edition, 1996). 79 Tom Clark, Rights Based Refuge, the Potential of the 1951 Convention and the Need for Authoritative Interpretation, 16 INTL J. REFUGEE L. 584 (2004), 589. 80 Compromis, 13.

76

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expel refugees out of its territory.81. So, according to the law enunciated in Conclusion no.22 of the EXCOM Anesians are atleast protected from being returned back. Various Regional Conventions82 have endeavoured to widen the definition of a refugee. From the above conventions, there is clear evidence of the Practice of civilized states, which confer the status of refugee not only on the grounds provided in the 1951 Convention but also on grounds viz: circumstances which have seriously disturbed public order. Ratanka was already reeling under a Humanitarians crisis before it was hit by massive flash floods83, which was the imminent cause for the migration of Anesians into Anghore. Thus, the humanitarian crisis coupled with massive flash floods, which destroyed vast property and killed many people can be considered as the circumstances/events which have seriously disturbed public order and which led to the flight of the Anseians. Hence, the Anseians should be considered as refugees. The norm of Non-refoulement is part of customary international law, thus binding on all States

1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country. 82 The Organization of African States Convention Governing the Specific Aspects of Refugees Problems in Africa 1969 (OAU Convention)82 extends the definition of a refugee in the 1951 Convention to every person who was compelled to leave his country of origin on account of external aggression .......or events seriously disturbing public order.; The 1984 Cartenga Declaration on Refugees82 which was adopted at a colloquim held in co-operation with UNHCR82 agreed to extend the definition of refugee. In this the Latin States agreed to include those who have fled their country because their lives, safety or freedom have been threatened by generalized violence......or other circumstances which have seriously disturbed public order82 in the definition of a refugee already provided in the 1951 Convention.; The 1966 Bangkok principles Concerning Treatment of Refugees82 also endeavoured to widen the scope of the definition, The above enunciations provide evidence of the Practice of civilized states, which confer the status of refugee not only on the grounds provided in the 1951 Convention but also on grounds viz: circumstances which have seriously disturbed public order. 83 Compromis, 11.

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whether or not they are party to the 1951 Convention.84 Anseians being refugees, are protected under the customary international law principle of Non-refoulement. C. That under Human Rights Norms, Anghore is obligated to provide protection to Ansieans In the Human Rights Law Regime, it is obligatory on states to protect the person present in its territory if there is a real chance of a violation of his fundamental rights on return to his state of Origin85. The International Covenant on Civil and Political Rights (ICCPR)86 has been interpreted in case law by the UN Human Rights Committee (HRC)87 as protecting a non-citizen from forcible return when it is predictable that aspects of the right to life would be violated88. There has been considerable damage in Ratanka which has severely crippled the lifeline and livelihood of the Anesians. Hence, any action which may return the Anesians back to Ratanka from Anghore would violate their right to livelihood and consequently their right to life. As per the case law of the human rights treaty bodies, the State which exposes a person to a foreseeable real risk of the violation of a fundamental right by expulsion is itself held to have violated the

Although questions remained as to the customary nature of the norm of non-refoukment during the Cold War era, it is clear that since the end of the Soviet era, the norm quickly attained a customary nature. For practice before 1989, see GUNNEL STENBERG, NORT-EXPULSION AND NON-REFOULEMENT, 288 (1989); for practice after 1989, see G. S. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW, 166-167 (2nd ed., 1996). 85 Tom Clark, Rights Based Refuge: The Potential Of The 1951 Convention And The Need For Authoritative Interpretation, 16 INTERNATIONAL JOURNAL OF REFUGEE LAW, 584-608, 590. 86 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force on 23 March 1976, in accordance with Article 49. 87 The Human Rights Committee is a United Nations body of 18 experts that meets three times a year to consider the five-yearly reports submitted by UN member states on their compliance with the International Covenant on Civil and Political Rights, available at http://www2.ohchr.org/english/bodies/hrc/index.htm, <last accessed on 6/1/2009>. 88 Ng v. Canada, Communication No. 469/1991, Views 7 Jan. 1994, UN Doc. CCPR/C/49/D/ 469/1991; Judge v. Canada, Communication No. 829/1998, Views 20 Oct. 2003, UN Doc. CCPR/ C/78/D/829/1998.

84

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person's right. Since Anseians are not Ratankians, there is no question of any responsibility on the part of Ratanka to take them back. D. In Arguendo, even if Anseains are Ratankians, then also Anghore cannot expel them from its Territory Even if Anesieans are Ratankaians, then also Ratanka doesnt have the responsibility to take them back. Customary international law89 imposes a duty on States to admit their nationals, being the corollary of the right of States to expel foreign nationals90. In the instant case as the Anesians are refugees, the right of Anghore to expel these foreign nationals stands vitiated. Thus, the duty of Ratanka, which is the corollary of Anghores right, also gets vitiated. Hence, Ratanka has no duty to take the Anseians back. E. That Ratanka and Caristhan are under no obligation to pay compensation to Anghore for the cost incurred by it on the welfare of Anseians. Since, it has been conclusively proved in the above arguments that Aneseians are not Ratankaians but refugees entitling protection in Anghore. Therefore, Ratanka has no obligation to pay compensation to Anghore rather it is the international obligation of Anghore to provide care and protection to Anseians. So, the financial costs that are incurred by the Republic of Anghore in course of such protection, has to be borne by it and not by ratanka or any third country.

Francois, Grandlijnen van het Volkenrecht, 1967, p 233; VAN PANHUYS, THE ROLE OF NATIONALITY IN INTERNATIONAL LAW (1959), 55-56; R. PLENDER, INTERNATIONAL MIGRATION LAW (1998) p. 133; L.B. SOHN AND T. BUERGENTHAL (EDS.), THE MOVEMENT OF PERSONS ACROSS BORDERS 2 (1992). 90 G.S. Goodwin-Gill, Voluntary Repatriation-Legal and Policy Issues, in G. LOESCHER & L. MONAHAN, EDS., REFUGEES AND INTERNATIONAL RELATIONS 259 (1989); G.S. GOODWIN-GILL, INTERNATIONAL LAW AND THE MOVEMENT OF PERSONS BETWEEN STATES 201-1, 136-7; Plender, ibid at 133-4.

89

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Since, Anesians had never belonged to Caristhan so question of compensating Anghore just does not arise. The dispute with regard to the nationality of Anesians has always been confined to Anghore and Ratanka. In Arguendo, if technological assistance has indeed been provided by Caristhan to the chemical facility, then also a fallout like a refugee situation is something that could not have been foreseeable. The guiding principle in tortuous liability is that damage caused by an act is too remote if a reasonable man would not have foreseen them91 and as such any damage caused by such an act will not qualify for compensation. The migration of Anesians as a consequence of such a spill is too remote to have been foreseen by any reasonable man. Thus, it needs to be understood that when Caristhan provided technology to Ratanka the only foreseeable damage that Caristhan could have imagined incase of a failure of technology is a chemical spill. The remoteness of the damage, abdicates Caristhan of any liability. IV. That Caristhan Has Not Violated its Comity Obligations Under International Law A. Comity is not a rule of law There has been no violation of International Comity obligations by the Republic of Caristhan. There is a lack of agreement amongst nations as to whether comity is at all a rule of law92. Comity is not a rule of law, but one of practice, convenience and expediency and its obligation is not imperative.93

91 92

Rigby v. Hewitt, (1850) 5 Ex. 240, p. 243; Greenland v. Chaplin, (1850) 5 Ex. 243, p. 248. Joel R. Paul, Comity in International Law, 32 HARV. INTL L. J. 14 (1991). 93 Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488-489.

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

Compromis, 15. Compromis, 12.

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CONCLUSION

Wherefore in light of the facts of the case, arguments advanced and authorities cited, this Court may be pleased to adjudge and declare that-

I.

Ratanka and Caristhan bear no responsibility whatsoever for the environmental damage, and hence, cannot be held liable to pay any compensation.

II.

Ratanka and Caristhan are not responsible for the violation of Anghores Territorial Sovereignty

III.

The Anesians are not Ratankaians but refugees and need to be protected by Anghore

IV.

Caristhan has not violated its Comity obligations under International Law

All of which is respectfully submitted ___________________________________ ___________________________________ Agents for the Respondents.

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