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TABLE OF CONTENTS
INDEX OF AUTHORITIES.4
STATEMENT OF JURISDICTION6
ISSUES PRESENTED...7
STATEMENT OF FACTS8
SUMMARY OF ARGUMENTS...9
ARGUMENTS ADVANCED................................................................................................10
1. WHETHER OR NOT THE GOVERNMENT OF HELENGA HAS VIOLATED
INTERNATIONAL HUMAN RIGHTS BY DENYING THE RIGHT TO
DEVELOPMENT TO ITS CITIZENS....10
1.1 THE RESPONDENT HAS FAILED TO PROGRESSIVELY REALIZE THE
DEVELOPMENT OF ITS CITIZENS......10
1.2 THE RIGHT TO DEVELOPMENT IS AN INALIENABLE HUMAN RIGHT...11
1.3 THE GOVERNMENT OF HELENGA IS LIABLE TO PAY COMPENSATION TO
THE RESPONDENT FOR THE DESTRUCTION OF ITS ECONOMY AND ITS
NAME INTERNATIONALLY, APART FROM THE COMPENSATION FOR
VIOLATING THE MINING AGREEMENT ..12
1.3.1 THE RESPONDENT IS LIABLE TO PAY COMPENSATION UNDER THE
PRINCIPLES OF INTERNATIONAL LAW..................12
1.3.2 THE RESPONDENT IS LIABLE FOR INJURIES TO APPLICANTS AND
TO INDIVIDUALS, UNDER THE CONCEPT OF FAULT, AND DEFENCES
AND LIMITATIONS ON STATE RESPONSIBILITY..13
2. WHETHER OR NOT THE REPUBLIC OF HELENGA IS LIABLE TO PAY
COMPENSATION TO THE REPUBLIC OF KITANA15
2.1 THE RESPONDENT HAS VIOLATED TREATY OBLIGATION.15
2.1.1
IN
THE
UN
CHARTER
AND
LAW
OF
TREATIES15
2.2 THE RESPONDENTS UNILATERAL DENUNCIATION IS AGAINST THE
PROVISIONS OF VCLT......17
2.3 THE RESPONDENT HAS THE OBLIGATION TO PERFORM THE KABIT
TREATY AND THE MINING AGREEMENT17
MEMORIAL ON BEHALF OF THE APPLICANT
OF
THE
KABIT
TREATY
AND
THE
MINING
AGREEMENT......19
2.5 THE RESPONDENT HAS FAILED TO COMPLY WITH PROCEDURE
PROVIDED FOR THE SUSPENSION OF TREATY AS PROVIDED UNDER
CUSTOMARY INTERNATIONAL LAW AND FURTHER RECOGNISED IN
THE VCLT, 1969..19
2.6 THE RESPONDENT IS REQUIRED TO PAY COMPENSATION TO THE
APPLICANT FOR BREACH OF THE AGREEMENT....21
3. WHETHER THE EIA MENTIONED BY THE RESPONDENT WAS CREDIBLE
ENOUGH FOR UNILATERAL SUSPENSION AND REVOCATION OF MINING
ACTIVITY RIGHTS.23
3.1 DUE PROCESS OF NOTIFICATION WAS NOT FOLLOWED....23
3.2 PREPARATION OF THE ENVIRONMENTAL IMPACT ASSESSMENT
DOCUMENTATION23
3.3 CONSULTATIONS ON THE BASIS OF THE ENVIRONMENTAL IMPACT
ASSESSMENT DOCUMENTATION......24
INDEX OF AUTHORITIES
I.
II.
1. Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania),
Judgement, 1949 I.C.J. Rep. 22, (Apr. 9, 1949).
2. Gabikovo-Nagymaros Project, (Hungary v Slovakia), Judgement, 1997 ICJ Reports 7,
(Sept. 25, 1997).
3. La Bretagne Arbitration, (Canada v. France), 82 I.L.R. 590 (1986).
4. Land and Maritime boundary between Cameroon and Nigeria, (Cameroon v. Nigeria),
1998 I.C.J. Reports, (11 Jun., 1998).
5. Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. U.S.A),
Judgment, 1986 I.C.J. Rep. 14, (Jun. 27, 1986).
6. Rainbow Warrior case, (New Zealand v. France), Arbitration Tribunal, 82 I.L.R. 500
(1990).
7. The Factory at Chorzw (Germany v. Poland), 1928 P.C.I.J. (Ser. A) No. 17, (Jul. 26, 1927)
III.
DECLARATIONS/RESOLUTIONS/DECISIONS
1. Declaration on the Right to Development, 1986, UNGA Resolution 41/128 (4th December
1986).
2. G.G. Fitzmaurice, Second report on the Law of Treaties, Special Rapporteur, A/CN.4/107,
P26
3. Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1
(1992)
4. United Nations Security Council Resolution 418, Res. 4/1977 (4th November 1977);
United Nations Security Council Resolution, 5/1979 (27th April 2011).
V.
REPORTS/JOURNALS/ARTICLES
1. Draft Articles on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B.
Intl L. Commission 26, U.N. DOC. A/56/49(Vol. I)/Corr.4.
2. FAQs on Economic, Social and Cultural Rights, Office of the United Nations High
Commissioner for Human Rights.
3. Fifth Report of the International Law Commission on State Responsibility, UN Doc.
A/CN.4/380 and Corr. 1 (1984).
VI.
WEBSITES
1. www.icj.org
2. www.un.org
3. www.scconline.com
4. www.ohchr.org
5. www.curia.europa.eu
6. www.heinonline.com
7. www.jstor.org
STATEMENT OF JURISDICTION
The Democratic Republic of Kitana (hereinafter Kitana) and the Republic of Helenga
(hereinafter Helenga) have agreed to submit this dispute Concerning suspension of mining
rights to the International Court of Justice pursuant to Article 40, paragraph 1 of the Statute of
this Court and by virtue of a Special Agreement signed in The Hague, The Netherlands. In
accordance with Article 36, paragraph 1 of the Statute, the Court has jurisdiction to decide all
matters referred to it for decision. Both parties shall accept the Courts decision as final and
binding and execute it in good faith.
ISSUES PRESENTED
STATEMENT OF FACTS
I. BACKGROUND OF PARTIES
The Republic of Helenga is a landlocked country in the continent of Lumia. Though rich in
both Mineral Resources and Biological diversity, it is listed as a least developed country by the
Economic and Social Council of the United Nations.
The Republic of Kitana is located in the continent of Pacifik, 4800 Kms. Away from the
Republic of Helenga. Kitana is one of the worlds fastest growing economies and has been
described as the manufacturing capital of the world. However, the amount of natural resources
(per capita) available within the territory of Kitana is far below international average.
Both the countries are members of the United Nations.
II.
Since 2010, the economy of Helenga had collapsed and living conditions for its people were
deteriorated significantly. The food production in the state had come to a standstill and the state
needed international food assistance to prevent widespread famine. In the year 2015, the
Republic of Helenga and the Democratic Republic of Kitana entered into a bilateral investment
treaty, namely KABIT, with the aim of creating favorable conditions for greater economic
cooperation. Subsequently, KitKat, a state owned entity of Kitana entered into an agreement
with the Republic of Helenga for the exclusive right of extracting mineral resources from the
Rabbi Moslem Natural reserve on the payment of 100 million USD to the Helenga
Government.
III.
In the year 2016, a new government came to power in the Republic of Helenga due to a civil
war which led to the old government under the rule of Rabbi Moslem being overthrown. The
new government then conducted an Environmental Impact Assessment (EIA) of the proposed
mining project. On the basis of the findings of the EIA, the new government suspended and
revoked all the mining activity rights within the reserve.
Both the parties by an agreement entered into an agreement and agreed to submit the dispute
to ICJ.
MEMORIAL ON BEHALF OF THE APPLICANT
SUMMARY OF ARGUMENTS
1. WHETHER OR NOT THE GOVERNMENT OF HELENGA HAS VIOLATED
INTERNATIONAL HUMAN RIGHTS BY DENYING THE RIGHT TO
DEVELOPMENT TO ITS CITIZENS
Human rights are the rights inherent to all human beings. Human Rights are universal and
inalienable. They should not be taken away, except by due process or under specific situation.
Inalienable as the term suggest which cannot be taken away. All human beings are the central
subject to development and should be active participant to the opinion of right to development.
ARGUMENTS ADVANCED
The Human Rights are rights inherent to all the human beings1. Human Rights are universal
and inalienable. They should not be taken away, except by due process or under specific
situation. Inalienable as the term suggests, which cannot be taken away.
The concept of progressive realization connotes that the states obligation in connection
to the economic, social and cultural rights under international human rights2. Each state
has the responsibility to achieve progressively and full realization of their rights 3. The
main basis of the connection that lies in the notion of the right to development is that it
recognizes development as a comprehensive economic, social, cultural and political
process in which all human rights can be fully realized4.
All human beings are the central subject to development and should be active
participant to the opinion of right to development. Every human has the right to take
part in the process of development5. The states have the primary obligation to create
conditions favorable for realization of the right to development6.The states have the
duty and the obligation to remove or eliminate obstacles from the right to development7.
10
The Human Rights are universal and inalienable. The Commission passed two
resolutions9 as the right to development as human right10. Every human and all persons
and every human being have the right to enjoy and participate in the development and
fully realization of rights11. First generation and Second generation rights are to be
treated at par for its promotion, implementation and safe-guarding on the urgent basis12.
Right to development must be fulfilled so as to equitably meet developmental
environmental needs of present and future generations13.
In the Vienna conference, 1993, the consensus between the developed and developing
countries emerged as right to development as a human right14. Sustained actions are
required to be taken for rapid development in the developing countries15.
Hence, the Right to Development can be considered as an inalienable human right, the
Republic of Helenga, as a state, has the obligation to fully realize the right to
development.
Fact sheet, 3.
UNSC, Resolution 4/1977 (2011), UNSC, Resolution 5/1979 (2011).
10
Iqbal, supra Note 3.
11
Art. 1(1), Declaration on The Right to Development, 1986, adopted on 4th December 1986.
12
Iqbal, supra, Note 8.
13
Principle 3, Rio Declaration on Environment and Development, 1992.
14
Iqbal, supra Note 3.
15
UNGA Resolution, supra Note 9, Art. 4(1).
9
11
It is submitted that the reported civil war in the Respondent state, which resulted into
gross violation of human rights, internal disturbance, poor economy and lowering down
of reputation at the international level caused material injury. Therefore, the
Respondent is liable for the reparation.
1.3.1
The source of compensation under the international law can be traced out under
"principles of international law or equity."16 International law and equity are
not mutually exclusive categories; the former encompasses much of the latter.
Equity can allow for the recovery of damages where the strict application of
legal formulas is not available, under theories of implied contract, constructive
trust, unjust enrichment and the like.
This principle has been adopted by the UN General Assembly Resolution 194
(III), paragraph 11 on December 11, 1948, upon which Palestinian claims for
refugee compensation are often based:
...and that compensation should be paid for the property of those choosing
not to return [to their homes] and for loss of or damage to property which,
under principles of international law or in equity, should be made good by the
Governments or authorities responsible (emphasis added).
Though the General Assembly resolution has only persuasive value but
pursuant to Article 10 of the UN Charter, in certain circumstances they can be
16
Jimenez de Arechaga, State Responsibility for the Nationalization of Foreign Owned Property, 11 N.Y.U. J. Intl
Law & Politics 179 (1978); Schreuer, Unjustified Enrichment in International Law; 22 Amer. J., Comparative
Law 281 (1974); and Oscar Schacter, Sharing the World's Resources (1977).
MEMORIAL ON BEHALF OF THE APPLICANT
12
1.3.2
The claims for relief under international law always begin with the law of state
responsibility, which is considered to consist of the "secondary rules" that
determine the legal consequences of failure to fulfil substantive legal
obligations, which are considered the "primary rules." According to the
International Law Commission (ILC) 1996 Draft Rules on State
Responsibility, every act by a state which is wrongful under some "primary"
rule of international law imposes international responsibility on that state.
(ii)
discontinue the act and restore the situation to the status quo ante;
(ii)
apply remedies provided under its internal law (if they exist) and to
pay appropriate compensation if restoration of the pre-existing status
is impossible; and
17
Luke T.L, The Right to Compensation: Refugees and Countries of Asylum, 80 Am. J. Intl. Law 532, 545 (1986).
Lee believes that Res. 194 has acquired such an authoritative status.
18
Articles 1, 3, 4, 17, 18(1). Report of the International Law Commission on the Work of its Forty-Eighth Session,
(A/51/10), (1996).
MEMORIAL ON BEHALF OF THE APPLICANT
13
A state to which a claim is made must negotiate in good faith to resolve it.
Moreover, "Failure of a state to respond in good faith to a request for
negotiation may itself constitute a breach of an international obligation."20
Moreover, human rights law imposes obligations on all states to protect the
rights of all individuals, whether nationals, aliens or the stateless.
Nevertheless, actual international mechanisms for claiming remedies under
human rights law are limited in application and scope.21
19
Willem R., Fifth Report of the International Law Commission on State Responsibility, UN Doc. A/CN.4/380
and Corr. 1 (1984). Restatement (Third) of the Foreign Relations Law of the United States, sec. 901 (The
American Law Institute,1987).
20
Ibid
21
The UN Commission on Human Rights has noted that "the question of restitution, compensation and
rehabilitation of victims of grave violations of human rights and fundamental freedoms has received insufficient
attention and should continue to be addressed in a more systematic and thorough way at the national and
international levels." Preamble to Resolution 1997/29. Yet even the Commission is still in the process of
investigating this question. See its Resolution 1999/33.
MEMORIAL ON BEHALF OF THE APPLICANT
14
It is humbly submitted that; indeed, the responsibility arises on the part of the Respondent to
pay compensation to the Applicant. A Bilateral Investment Treaty, namely KABIT, was signed
between contracting parties with the aim of creating favorable conditions for greater economic
cooperation. KitKat, a state owned entity of Kitana, entered into an agreement with the
Republic of Helenga for the exclusive right of extracting mineral resources from the Rabbi
Moslem Natural Reserve on the payment of 100 million USD to the Helenga government22.
The Republic of Helenga has unilaterally denunciated from the agreement and treaty by
revoking all mining activity rights within the reserve which is a breach of bilateral treaty
obligation and agreement by the government of Helenga.
The obligations may arise for a State by a treaty and by a rule of customary international
law or by a treaty and a unilateral act23. The Democratic Republic of Kitana suffered a
major setback due to revocation of all the mining activitys rights within the reserve
from the Republic of Helenga and attack on mining industries. The economy of Kitana
took a huge hit.
2.1.1
22
15
The effect of a treaty upon the contracting parties is that they only are bound by
its provisions and must perform it in good faith29. As between the parties, the
provisions of a treaty prevail over any inconsistent rule of customary
international law, unless it constitutes a rule of jus cogens, a party may not invoke
the provisions of its internal law as justification for a failure to perform a treaty30;
this applies particularly to its failure to enact suitable laws to give effect to its
treaty obligations. Obligations may arise for a State by a treaty and by a rule of
customary international law or by a treaty and a unilateral act31.
It was noted that the International Law did not distinguish between contractual
and tortious responsibility, so that any violation by a state of any obligation of
whatever origin gives rise to a state responsibility and consequently to the duty
of reparation32. Article 37 of the ILC Articles provides that a state responsible
for a wrongful act is obliged to give satisfaction for the injury thereby caused in
24
Preamble, Vienna Convention on Law of Treaties, 1155 UNTS 331, (Adopted on May 23, 1969)
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
26
This includes treaties provisionally in force under Art. 25 of the Vienna Conventions: See ILC Commentary
(treaties), Art 23, para (3); YBILC (1966), ii, p 211.
27
The obligation of good faith includes the obligation of a party to a treaty to abstain from acts calculated to
frustrate the object and purpose of the treaty.
28
Oppenheim, International Law, (9th Ed. 1996), Pg. 1206.
29
VCLT, supra note 22, Art. 26.
30
Ibid, at Art. 27.
31
Nicaragua, supra Note 21. at 117.
32
Rainbow Warrior Case, (New Zealand v. France), 82 ILR 500 (1990) pp. 801; Malcolm Shaw, International
Law, Cambridge University Press, (6TH ed.) pg. 779.
25
16
Article 56 of the Vienna Convention lays down that the general rule is that in the
absence of provision in the treaty, a party may not withdraw from it or denounce it: but
denunciation or withdrawal are permitted on at least 12-month notice if it is established
that the parties intended to admit the possibility, or if a right of denunciation or
withdrawal may be implied by the nature of the treaty34.
It is evident from the facts of the case that there was no notice provided by the
government of Helenga or even any intimation to the Republic of Kitana regarding its
denunciation from the KABIT Treaty and consequently suspension of the mining
agreement. The denunciation on part of Helenga was invalid as it did not conform to
the Article 56 of Vienna convention as the treaty is silent on the intimation part of
denunciation.
The ICJ noted in the Competence of the General Assembly for the Admission of a state
to the United Nations case35 that the first duty of a tribunal which is called upon to
interpret and apply the provisions of a treaty is to endeavor to give effect to them in
their natural and ordinary meaning in the context in which they occur36.
33
17
37
ICJ Reports, 1974, pp. 253, 267;57 ILR, pp. 398, 412.
VCLT, supra note 22, Art. 26.
39
Land and Maritime boundary between Cameroon and Nigeria, (Cameroon v. Nigeria), ICJ Reports, pp. 275,
304. (10 Oct., 2002).
40
(1874), 23 Fed. Cases, 927.
41
William Edward Hall, International Law, Clarendon Press (6TH ed. 1909) pg. 343.
38
18
The violation of the treaty and agreement by the government of Helenga entitles Kitana
for compensation. The violation of the unique interest of Kitana leads to breach of the
treaty and agreement. As the attack on mining industries is violation of the sovereignty
and integrity of the republic of Kitana which indeed constitutes an internationally
wrongful act42. The state responsible for an internationally wrongful act is under an
obligation to compensate for the damage caused thereby, insofar as such damages is not
made good by restitution43.
Draft Articles on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Intl L. Commission
26, U.N. DOC. A/56/49(Vol. I)/Corr.4
43
Ibid, Art. 36.
44
1. A party which, under the provisions of the present Convention, invokes either a defect in its consent to be
bound by a treaty or a ground for impeaching the validity of a treaty, terminating it, withdrawing from it or
suspending its operation, must notify the other parties of its claim. The notification shall indicate the measure
proposed to be taken with respect to the treaty and the reasons therefore.
2. If, after the expiry of a period which, except in cases of special urgency, shall not be less than three months
after the receipt of the notification, no party has raised any objection, the party making the notification may carry
out in the manner provided in article 67 the measure which it has proposed.
3. If, however, objection has been raised by any other party, the parties shall seek a solution through the means
indicated in Article 33 of the Charter of the United Nations.
4. Nothing in the foregoing paragraphs shall affect the rights or obligations of the parties under any provisions
in force binding the parties with regard to the settlement of disputes.
42
19
To maintain the principle of sovereign equality, and preserve the rights and interest of
all parties, Article 65 therefore construes treaty nullification, suspension or termination
as a process in which the alleged facts- and bona fide of the claimant are put to test.48
The reason was that some of the grounds for invalidating or terminating a treaty carry
definite risks to the security of treaties and that procedural provisions are the only
means of avoiding or reducing these risks.49
5. Without prejudice to article 45, the fact that a State has not previously made the notification prescribed in
paragraph 1 shall not prevent it from making such notification in answer to another party claiming performance
of the treaty or alleging its violation.
45
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international
peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means.
46
G.G. Fitzmaurice, Second report on the Law of Treaties, Special Rapporteur, A/CN.4/107, P26.
47
Oliver corte, Pirre Klein, The Vienna Convention on the Law of treaties.
48
Wald lockin YILC, 1963, Vol I, P. 171.
49
supra, note 26, at 110.
MEMORIAL ON BEHALF OF THE APPLICANT
20
It has long been a general and undisputed principle of international law, going back to
Blackstone as well as Grotius, that where there is a legal right, there is also a legal
remedy or action at law whenever that right is invaded. This is the flipside of the
principle that states have the obligation to make restitution for their wrongful acts and
violations of international law. As a matter of international law, when a State breaches
a treaty obligation, its conduct is considered a wrongful act for which reparation is
due for any injury caused thereby. The basic principle that States are obligated to make
full reparation for any injury caused by an internationally wrongful act is set out in
Article 31 of the International Law Commissions Articles of State Responsibility50
ILC Article 251 provides that an internationally wrongful act occurs when there is a
State conduct that constitutes a breach of an international obligation of the State.
Thus, a failure by the Respondent State to accord treatment as set out in an applicable
investment treaty is an internationally wrongful act giving rise to the obligation to make
full reparation for any injury caused thereby.
Resolving issues over the nature or extent of the reparation to be made for the breach
of an international obligation is, in fact, one of the functions of the International Court
of Justice (ICJ). "Ordinarily, emphasis is on forms of redress that will undo the effect
of the violation."52 The Permanent Court of International Justice stated:
"Reparation must, as far as possible, wipe out all the consequences of the illegal act
and re-establish the situation which would, in all probability, have existed if that act
had not been committed."
James Crawford, The International Law Commissions Articles On State Responsibility (Cambridge University
Press 2002).
51
There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
52
Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations
of Human Rights and Fundamental Freedoms: Preliminary Report, UN Doc. E/CN.4/Sub.2/1990/10; Article
36(2)(d) of the Statute of the International Court of Justice.
50
21
Article 13 to 15 of the Draft Articles of State Policy deals with the liability of the state
for the breach of treaty or contractual obligation. State responsibility for breach of a
treaty obligation depends upon the precise terms of the treaty provision alleged to have
been infringed. If the treaty provision is broken, responsibility follows. According to
PCIJ in the Chorzow Factory (indemnity) Case, it is a principle of international law that
any breach of an engagement involves an obligation to make reparation.
22
It humbly submitted before this Court that, the Respondent State never submitted its
Environmental Impact Assessment (hereinafter EIA) report to the Applicant or any competent
authority. It conducted an EIA and subsequently suspended and revoked all mining activity
rights within the reserve53. The credibility of EIA is highly challenged by the Applicant. The
crass act of suspending all the mining rights is arbitrary in nature.
The EIA conducted by the Respondent is challenged as per the Convention54 on the following
grounds:
53
23
58
59
ibid, Art. 4.
ibid, Art. 5.
MEMORIAL ON BEHALF OF THE APPLICANT
24
Wherefore in the light of facts stated, arguments advanced and authorities cited, it is humbly
prayed that this Honble Court may be pleased to declare that: -
A. The Respondent will either continue with the agreement or pay compensation.
B. The Respondent is liable for the violation of Human Rights
C. The Respondent should pay compensation of Hundred million USD for the destruction
of economy and the name of the Applicant internationally.
D. The EIA conducted by the Respondent is not in consonance with the procedures
provided in the convention.
AND/OR
The Court may also be pleased to pass any other order, which the court may deem fit in light
of Justice, Equity and Good Conscience.
S/d__________________
Date: __________
25