INTERNATIONAL INTERNAL MOOT COURT COMPETITION, 2013

THE REPUBLIC OF MOYTAN v. THE REPUBLIC OF MOSHO

MEMORIAL SUBMITTED ON BEHALF OF THE REPUBLIC OF MOSHO

IN THE INTERNATIONAL COURT OF JUSTICE

Memorial for the Respondent

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TABLE OF CONTENTS

1. List of Abbreviations 2. List of Sources 3. Statement of Jurisdiction 4. Statement of Facts 5. Issues Raised 6. Summary of Arguments 7. Arguments Advanced 8. Prayer

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LIST OF ABBREVIATIONS

UN ICJ ACRM MERB IPPC

United Nations International Court of Justice Administrative Commission of the River Mosho Moshoian Environmental Regulatory body International Pollution Prevention and Control

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LIST OF SOURCES

INTERNATIONAL CONVENTIONS

1. Vienna Convention on Law of Treaty, 1969 2. Stockholm Declaration, 1972 3. Convention on the Protection and Use of Transboundary Water Course and International
Lakes, 1992

4. Convention on Protection and preservation of the marine environment

JUDICIAL DECISIONS

1. Trail Smelter arbitration, 33 AJIL, 1939 2. Gabcikovo-Nagymaros project case, ICJ Reports 1997

DOCUMENTS

1. ICJ Reports 1949 2. International Pollution Prevention and Control Directives, 1999

BOOKS 1. L. Oppenheim, International Law, 8th ed, London, 1955 Vol. 1 2. Ian Brownline, Principle of Public International Law, seventh edition
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3. Hadjiemmanuil, European Union Law, 6th ed, 2006 4. Sarah Williams, International Law, 5th ed 5. Yoshifunu Tanaka, The International Law of the Sea, 1st ed, 2012 6. Rebecca M.M. Wallace, International Law, 4th ed

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STATEMENT OF JURISDICTION

Both the parties to the present dispute, the Republic of Moytan and Mosho submit the present dispute to the International Court of Justice under Article 36(1): The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force of the Statute of the ICJ which invokes the jurisdiction of the Court.

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STATEMENT OF FACTS

The Republic of Mosho is an economically developed , ethically diverse and democratic state and shares a border with Moytan. The Republic of Mosho became party to the Vienna Convention on the Law of treaties in 1979. Mosho and Moytan entered into force on February 19,1966, providing for the establishment of a joint regime for the use of the river. Mosho stated that it hasfully complied with the Law of 1974 of the river Mosho throughout the period in which this case has developed The adoption of the requested measures would have irreparable, disastrous consequences on Moshos rights and on the future of its peoplesApplying both the highest and the most appropriate international standards of pollution control of these two mills it had met its obligations under the 1974 Law. Moshi however stated that the dispute between Mosho and Moytan over the pulp mill had in reality been settled by an agreement entered into on March 2,2004 between the Moshoian Minister for forgein Affairs and his Moytan counterpart and explained that the two ministers had agreed. Mosho added that the mills would abide by the strict requirements imposed by the latest European Union 1999 International Pollution Prevention and Control (IPPC) recommendations, with which compliance is required by all pulp mills by 2007. Mosho also pointed out that the Pieces and Supreme mills would not be operational before August 2007 and June 2008 and even if it were to be considered that the operation of the mills might lead to the contamination of the river. For Mosho its the largest foreign investment in Moshos history that construction in itself would create many thousands of new jobs and cause a 2 percent increase in Moshos GDP.

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ISSUES RAISED

1. Whether or not there has been violations of international obligations ? 2. Whether the treaty has been implemented in good faith and therefore, there has been
no damage done to the environment or any violation of international environment rules or customary international principles?

3. Whether or not there is a violation of Principles of International Responsibility?

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SUMMARY OF ARGUMENTS

1. Whether or not there has been violations of international obligations ?

The Convention on the law of the non-navigational uses of international watercourse, 1997 clearly states that any watercourse shared between two states have to follow the principle of equitable participation of the countries sharing the common watercourse.

Both the countries Mosho and Moytan have entered into an agreement in the form of treaty to oblige to this international obligation for the equitable use of natural resources.

2. Whether the treaty has been implemented in good faith and therefore, there has been no damage done to the environment or any violation of international environment rules or customary international principles?

The treaty has been implemented in good faith because the Foriegn Minister of Mosho has consulted his Moytan counterpart and have agreed to a consensus that allows the mills to be set up provided that ACRM shall monitor the quality of river water once the mill becomes operational.

There has been no violation of international environmental rules as the latest European Union standards regarding the technology and protection of environment shall be incorporated.

Lastly the customary international principles clearly mentions that States may not allow their territory to be used in a way that is prejudicial to the rights of another State or States. Setting up of the mills is not prejudicial to Moytan in any manner whatsoever.

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3. Whether or not there is a violation of Principles of International Responsibility?

The principle expressed in the Rio Declaration, which stipulates that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

There is no current or imminent threat to any right of Moytan, so that the conditions of risk of irreparable harm and urgency are not fulfilled. There is no current substantial evidence that proves that there is an irreversible damage to the environment or an irreversible damage is likely to occur after the mills comes into operation.

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ARGUMENTS ADVANCED

1. Whether or not there has been violations of international obligations ?

The obligations set up for the proper use of international watercourse, which every state has to follow according to international law, is mentioned under Article 5 of the Convention on the law of the non-navigational uses of international watercourse, 1997. Article 5, contained in Part II, reflects the principle that is widely regarded as the cornerstone of the convention, and indeed the law in the field: equitable and reasonable utilization and participation. It requires that a state sharing an international watercourse, in its territory, in a manner that is equitable and reasonable vis-a-vis the other states sharing it. In order to ensure that their utilization of an international watercourse is equitable and reasonable, states are to take into account all relevant factors and circumstances. Article 5 also sets forth, in paragraph 2, the principle of equitable participation. According to this, states are to participate in the use, development and protection of an international watercourse in an equitable and reasonable manner. Thus, affirmative conduct may be required by this principle, which is a further elaboration of the implications of equitable and reasonable utilization1 Thus, to expressely state, Mosho has obliged to all its responsibilities under the International Watercourse convention, 1997 by allowing equitable participation for the development, protection of an international watercourse in a reasonable manner. Further, Part IV of the Convection deals with protection, preservation and management of international watercourses. It contains provisions on protection and preservation of watercourses ecosystems, prevention, reductions and control of pollution, and consultation concerning management of an international watercourse, among others. The importance of these provisions is perhaps obvious: watercourse ecosystems and watercourses themselves must be protected, preserved and properly managed, if they are to support human and other forms of life.2

1 2

Art 5, Convention on the law of the non-navigational uses of international watercourse, 1997 Part IV, Convention on the law of the non-navigational uses of international watercourse, 1997

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According to Article 192 of the convention of law of sea 1982 provides with an obligation to protect the marine environment. The Article 194 of the Convention gives the measures to prevent, reduce and control pollution of the marine environment.3 The pulp mills going to be set up in Mosho is complying with all the requirements as imposed by the latest European Union 1999 International Pollution Prevention and Control (IPPC) recommends.4 Thus, clearly stating that the obligations of Mosho has been sufficiently and reasonably met and has no violation of the international code.

3 4

Part xii Protection and preservation of the marine environment, section 1. general provisions Fact Sheet Para.12

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2. Whether the treaty has been implemented in good faith and therefore, there has been no damage done to the environment or any violation of international environment rules or customary international principles?

States are to co-operate in good faith in trying to prevent such activities from causing significant transboundary injury and in minimising the effects of the risk ant they are to seek the assistance as necessary of competent international organisations.5 Moshoian minister for foreign affairs met Moytans counterpart regarding the construction of the mill to which Moytan Minister agreed therefore both the States had co-operated in good faith. We move ahead keeping in mind that the mills are yet to start and right now at present there is no damage done to the environment and according to the Moshoian government when the mills start then it might pollute the environment as they are strictly following the requirements of(IPPC). Elemental Chlorine Free (or ECF) bleaching (employing chlorine dioxide), which has been adopted by European Union as best available technologies in their wood pup processing environmental regulations, and that an independent world bank has supported their position.6 As the alleged violation of the treaty of the moshoian river, moshoians legal defence team asserted that discussions over the building of the mills were conducted, and that moytons foreign ministers raised no objections. The ministers agreed that the mills could be built according to moshoians plan and secondly mosho will provide moyton regarding specifications and operations and thirdly that ACRM would monitor the quality of river water once the mill becomes operational. It is a significant principle of customary international law that States may not allow their territory to be used in a way that is prejudicial to the rights of another State or States. This was applied in the Trail Smelter Arbitration7 in which the USA claimed compensation from Canada for damage caused by air pollution coming from a Canadian smelter. The principle extends beyond air pollution to other types of harm, and is not limited to adjacent States. States are required to cooperate to prevent and mitigate trans-boundary environmental harm. In the Lac

5 6

Draft articles on prevention of transboundary harm from hazardous activities in 2001 article 4 European Union Rules as followed by the Uruguay river in Argentina v. Uruguayhave 7 Train Smelter Arbitration (USA v Canada) (1938) RIAA, Volume 3, 194; 9 ILR 315

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Lanoux Arbitration,8 France was obliged to consider the interests of, and advise Spain, when preparing a scheme for water diversion that would have adverse effects across the border.

A State would only be responsible in the international legal sense for damage caused where it would be clearly demonstrated that this resulted from its own unlawful activity9 in Moshos case the authorised mills are yet to start and according to Mosho when the mill starts operating then it might lead to the contamination of the riveras the mills abide by the strict requirements imposed by the latest European Union 1999 International pollution prevention and control(IPPC)recommendations.

8 9

Lac Lanoux Arbitration (France v Spain) 24 ILR 101. Ian Brownline, Principle of Public International Law, seventh edition

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3. Whether or not there has been a violation of Principles of International Responsibility?

There has been full compliance with the 1974 statute of river mosho throughout the period in which this case has developed. Environmental law regularly operates in areas complicated by high levels of scientific uncertainty. In the case of many activities that entail some change to the environment, it is impossible to determine precisely what effects the activity will have on the quality of the environment or on human health. It is generally impossible to know, for example, whether a certain level of air pollution will result in an increase in mortality from respiratory disease, whether a certain level of water pollution will reduce a healthy fish population, or whether oil development in an environmentally sensitive area will significantly disturb the native wildlife.10 The precautionary principle requires that, if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to control that activity now rather than to wait for incontrovertible scientific evidence. This principle is expressed in the Rio Declaration, which stipulates that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. There is no current or imminent threat to any right of Moytan, so that the conditions of risk of irreparable harm and urgency are not fulfilled. The environmental impact assessments so far undertaken, as well as those to come, and the regulatory controls and strict licensing conditions imposed by Moshoian law for the construction and operation of the mills, guaranteed that the latter would not cause any harm to the River Mosho or to Moytan, and that they would abide by the strict requirements imposed by the latest European Union 1999 International Pollution Prevention and Control (IPPC) recommendations, with which compliance is required by all pulp plants in Europe by 2007. Moreover, Moytan has not at present provided evidence that suggests that any pollution resulting from the commissioning of the mills would be of a character to cause irreparable damage to the River Mosho. It is a function of ACRM to ensure the quality of water of the river by regulating
10

Britannia encyclopedia, international environment law

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and minimizing the level of pollution and that, in any event, the threat of any pollution is not imminent as the mills are not expected to be operational before August 2007 (pieces) and June 2008 (supreme).11

11

Fact Sheet

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PRAYER

Wherefore, may it please this Honble Court, in the light of the questions presented, arguments advanced and authorities cited, to adjudge and declare that:

1. Mosho is consistent with the law of 1974 and has complies with all the rights and duties imposed by the ACRM. 2. There has been no violation of international obligation and has complied with all the responsibilities imposed by the international law. 3. That the case be dismissed immediately.

Or pass any other Order in the interest of equity, justice and good conscience. For this act of kindness the Applicant shall forever humbly pray.

All of which is respectfully affirmed and submitted, Agents for the Respondent, Republic of Mosho.

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