winning mem respondent 2009

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


--------------------------------------Memorial for the Respondents----------------------------------------

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 Anghore’s 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

ANGHORE’S TERRITORIAL SOVEREIGNTY ........................................................................ 6


--------------------------------------Memorial for the Respondents----------------------------------------

A.] That Caristhan Is Not Responsible For Violation Of Anghore’s Territorial-

Sovereignty 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


----------------------------------Memorial for the Respondents----------------------------------------

i

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, 32nd

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



ii

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

Gabčíkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7 ................................ 6, 7, 8, 9

Greenland v. Chaplin, (1850) 5 Ex. 243 ........................................................................... 19



iii

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



iv

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



v

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.

TRANSNAT’L 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



vi

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. INT’L 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 INT’L 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



vii

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.

108…………………………………………………………………………………………1



viii

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 Court’s jurisdiction is invoked under Article 36(1)

read with Article 40(1) of the Statute of the International Court of Justice, 1950.



ix

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.



x

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.



xi

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 Anghore’s territory.

BONE OF CONTENTION: Anghore was upset at this development and clarified that

environmental damage cannot be a justification for violation of sovereignty. The relations

between Anghore and Ratanka, and, Anghore and Caristhan started to deteriorate.

Anghore insisted that Ratanka and Caristhan should bear Joint responsibility for the



xii

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.


--------------------------------------Memorial for the Respondents-----------------------------------

xiii

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 ANGHORE’S 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 Caristhan’s 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

ANGHORE’S TERRITORIAL SOVEREIGNTY

A.] THAT CARISTHAN IS NOT RESPONSIBLE FOR VIOLATION OF ANGHORE’S TERRITORIAL-

SOVEREIGNTY AS THERE WAS THE SITUATION OF NECESSITY

A.1] Defence of necessity under customary international law



xiv

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 Caristhan’s 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



1

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

1 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. INT’L AFF. 457 (1991), 462- 63.



2

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 6 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



3

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.

Ratanka’s 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 Anghore’s 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 Article 38 of the Statute of the International Court of Justice (1945). 11 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.



4

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 Caristhan’s 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

12 PATRICIA BIRNIE & ALAN BOYLE, INTERNATIONAL LAW & THE ENVIRONMENT 101 (2nd ed. 2002). 13 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.



5

an indication that it had provided technical assistance to Monron factory. A mere

inference on Anghore’s 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 Caristhan’s 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



6

II. That Ratanka and Caristhan Are Not Responsible for the Violation of Anghore’s

Territorial Sovereignty

A. That Caristhan Is Not Responsible For Violation Of Anghore’s Territorial-

Sovereignty 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 Gabčíkovo-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

18 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. TRANSNAT’L L. 485 2004, 491. 26 Gabčíkovo-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, Gabčíkovo-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).



7

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 ILC’s 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

27 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 l’état de nécessité en droit international, in J. MAKARCZYK, (ED.), ESSAYS IN HONOUR OF JUDGE MANFRED LACHS 250 (Martinus Nij-hoff, 1984).



8

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

30 Okowa, Supra note 25; Gabčíkovo-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); Gabčíkovo-Nagymaros , para. 53. 32 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, 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 Gabčíkovo-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.



9

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

40 Boed, supra note 31 at p. 28. 41 Gabčíkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7. 42 Gabčíkovo-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 Gabčíkovo-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 nécessité ne doit pas être imaginaire … elle doit être réelle et pressant”, see quote in Salmon, Supra note 28 at p. 253. 44 Crawford, Supra note 12 at p. 184; see Gabčíkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, 43-5, para. 56. 45 ILC Commentary, supra note 8 at p. 202. 46 Compromis, ¶ 15.



10

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 Caristhan’s 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 Crawford, supra note 29at p. 184; Shaw, supra note 22 at p. 712; Salmon, supra note 29 at p. 245. 48 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 Gabčíkovo-Nagymaros (Hungary v. Slovakia), 1997 I.C.J. 7, at 46, para. 58.



11

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 Caristhan’s 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 ne-

cessity 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

53 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 Gabčíkovo-Nagymaros case the Court affirmed the need to take into account any countervailing interest of the other State concerned: Gabčíkovo-Nagymaros (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.



12

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 Caristhan’s 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.” Caristhan’s Military was definitely in

the service of its country and therefore, its actions to maintain safety of its country makes

it caristhan’s organ only. Therefore, The Caristhan’s 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).



13

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

63 ILC Draft Articles, supra note 16 at p. 3. 64 1971 I.C.J. Rep. 16, p.54. 65 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. 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.



14

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.



15

‘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

76 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 INT’L J. REFUGEE L. 584 (2004), 589. 80 Compromis, ¶ 13.



16

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

81 “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 order’82 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.



17

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

84 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.



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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 doesn’t 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 Anghore’s

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.

89 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.



19

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 Rigby v. Hewitt, (1850) 5 Ex. 240, p. 243; Greenland v. Chaplin, (1850) 5 Ex. 243, p. 248. 92 Joel R. Paul, Comity in International Law, 32 HARV. INT’L L. J. 14 (1991). 93 Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 488-489.



20

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 high-

handedness 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 Compromis, ¶ 15. 95 Compromis, ¶ 12.



xv

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 Anghore’s

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

___________________________________

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Agents for the Respondents.

winning mem respondent 2009

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