A PPLICANT T EAM NO .703
2007 General List No. 112
IN
THE
I NTERNATIONAL C OURT
OF
J USTICE
The Hague, the Netherlands
D IFFERENCES CONCERNING THE
H WANGE B LACK R HINOCEROS T HE R EPUBLIC
OF
H WANGE
Applicant, v. T HE D EMOCRATIC R EPUBLIC
OF
C ATAYA
Respondent
MEMORIAL FOR THE APPLICANT
ii
TABLE OF CONTENTS TABLE OF CONTENTS…............................................................................................................ii TABLE OF AUTHORITIES….......................................................................................................v International Agreements …...............................................................................................v Treaty Laws Binding Upon the Parties………………………………………………..v Other International Agreements as Evidences of Customary International Law……..v National Legislations……………………………………………………………………...vi Judicial Decisions……………………………………….………………………...............vii Permanent Court of International Justice……………………………………………vii International Court of Justice………………………………………………………..vii International Arbitrations…………………………………………………………...viii Other International Judicial Decisions………………………………………………..ix American Cases………………………………………………………………………ix European Cases………………………………………………………………………..x Asian and Australian Cases…………………………………………………………...x Declarations, Studies and Reports by the United Nations………………………………x International Law Commission………………………………………………………..x United Nations General Assembly………………………………………………….....x United Nations International Conferences……………………………………………xi Other United Nations Bodies………………………………………………………....xi Teachings of the Most Highly Qualified Publicists…....................................................xii Treatises……………………………………………………………………………...xii Articles and Journals………………………………………………………………..xiii STATEMENT OF JURISDICTION…...........................................................................................xv QUESTIONS PRESENTED….....................................................................................................xvi
iii STATEMENT OF FACTS…......................................................................................................xvii SUMMARY OF ARGUMENTS…................................................................................................xix ARGUMENTS & AUTHORITIES…..............................................................................................1 I. CATAYA HAS AN OBLIGATION TO PREVENT COCOCAT FROM EXTRACTING COALS IN B.C. JAY NATURAL RESERVE..........................................1 A. CATAYA IS RESPONSIBLE FOR THE CONDUCT OF COCOCAT......................................1 1. Cataya exercises an effective control over CoCoCat.................................................1 2. Cataya has interests in proceeding with the extraction activity.................................1 3. Cataya has a duty to prevent CoCoCat from violating international law…………..1 B. CATAYA HAS A PARTICULAR DUTY UNDER ARTICLE 5 OF THE CBD TO COOPERATE WITH HWANGE BY PREVENTING COCOCAT FROM EXTRACTION ACTIVITIES................3
1. Textual interpretation prohibits extraction.................................................................3 2. Contextual interpretation prohibits extraction...........................................................5 3. Interpretation in regards of relevant rules of international law prohibits extraction…………………………………………………………………5 C. CATAYA HAS A PARTICULAR DUTY UNDER CUSTOMARY PRINCIPLES TO PREVENT COCOCAT FROM EXTRACTION ACTIVITIES.....................................................................6 1. Cataya is obliged by the Principle of Preventive Action............................................7 2. Cataya is obliged by the Principle of Conservation of Natural Heritage...................8 3. Cataya is obliged by the Precautionary Principle.......................................................9 4. Cataya is obliged by the Principle of Sustainable Development................................9 D. IN ANY EVENY, CATAYA IS BOUND BY JUS COGENS TO RESPECT HWANGE’S SOVEREIGNTY OVER ITS NATURAL RESOURCES...........................................................11
iv II. HWANGE IS NOT LIABLE FOR THE COMPENSATION CLAIMED BY CATAYA.................................................................................................................................12 A. CATAYA MAY NOT BRING A CLAIM TO THIS COURT ON BEHALF OF ITS NATIONAL.....12
B. IN THE ALTERNATIVE, HWANGE IS NOT OBLIGED TO PAY FOR ANY COMPENSATION..12 1. Hwange is precluded from any wrongfulness under the principle of necessity.......12 2. In any event, Hwange has no duty under international law to compensate for a lawful expropriation.................................................................................................13 a. Hwange did not expropriate any foreign property.......................................13 b. Hwange is not bound by CHABIT to compensate for investment................14 3. In any event, the concession agreement between CoCoCat and Hwange is unenforceable.......................................................................................................15 a. The agreement is void due to illegal objectives...........................................16 b. The agreement is void due to mistake of facts.............................................16 c. The agreement is void due to duress and undue influence………………..16 4. In any event, Hwange is not liable for the odious debts incurred by The Morgue Regime………………………………………………………………17
C. ALTERNATIVELY, HWANGE IS ONLY LIABLE FOR AN APPROPRIATE COMPENSATION..19
CONCLUSION….......................................................................................................................21
Appendix: excerpts from CHABIT......................................................................................22
v TABLE OF AUTHORITIES
INTERNATIONAL AGREEMENTS Treaty Laws Binding Upon the Parties Convention on Biological Diversity, June 5, 1992, 1760 UNTS 79 [cited as “CBD”]…passim Convention on International Trade in Endangered Species of Wild Fauna and Flora, March 3, 1973, 12 ILM 1085 (1993) [cited as “CITES”]………………………………5, 7, 10 Statute of the International Court of Justice, June 26, 1945 33 UNTS 993 [cited as “ICJ Statute”]……………………………………….…………...……………….6,15 United Nations Charter, as amended June 26, 1945, 892 UNTS 119 [cited as “UN Charter”]………………………….…………………………11 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331 [cited as “VCLT”] …........................................................................................................passim Other International Agreements as Evidences of Customary International Law African Convention on the Conservation of Nature and Natural Resource, September 15, 1968, 1001 UNTS 4 [cited as “African Nature Convention 1968”]…….…...7 ASEAN Agreement on the Conservation of Nature and Natural Resources, July 9, 1985, EPL 64 (1985) [cited as “ASEAN Conservation Agreement 1985”] …………7 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, January 29, 2000, 39 ILM 1257 [cited as “Cartagena Protocol”]……………………………9 Convention on Conservation of Nature in the South Pacific, June 12, 1976; IELMT 976:45 [cited as “Apia Convention 1976”]..………………………………………………………….7 Convention Concerning the Protection of the World Cultural and Natural Heritage, November 16, 1972, 27 UST 37 [cited as “World Heritage Convention”]……………7, 8, 10 Convention for the Protection of the Marine Environment for the North-East Atlantic, September 22, 1992, 32 ILM 1069 [cited as “OSPAR 1992”]………………………………..9 Convention for the Protection of the Natural Resources and Environment of the South Pacific Region, November 25, 1986 [cited as “Noumea Convention 1986”]………………………...7 Convention on Environmental Impact Assessment in a Transboundary Context, March 25, 1991, 30 ILM 802 [cited as “Espoo Convention 1991”].................….....................7 Convention on the Conservation of European Wildlife and Natural Habitats (Berne), September 19, 1979, UKTS 56 (1982) [cited as “Berne Convention 1979”]….......................7
vi Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, March 22, 1989, 1673 UNTS 126 [cited as “Basel Convention 1989”] …………11 Convention on the Protection of the Alps, November 7, 1991, 31 ILM 767 (1992) [cited as “Alps Convention 1991”]……………………………………………………………7 European Community Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora, May 21, 1992, 92/43/EEC [cited as “EC Habitats Directive 1992”]……………………………………………………..7 General Agreement on Tariffs and Trade 1994, ILM 1125, 1143[cited as “GATT”]….........10 International Tropical Timber Agreement, January 26, 1994, 33 ILM 101 [cited as “International Timber Agreement 1994”]………………………………………...11 International Convention for the Regulation of Whaling, December 2, 1946, 161 UNTS 72 [cited as “Whaling Convention 1946”]………………………………………………………9 North American Agreement on Environmental Cooperation, September 8-14, 1993, U.S.Canada-Mexico, 32 ILM 1480 [cited as “North American Agreement 1993”]………………9 Protocol Concerning Protected Areas and Wildlife Fauna and Flora in the Eastern African Region, June 21, 1985, IELMT 985:47[cited as “Nairobi SPA Protocol 1985”]…….………7 Protocol Concerning Specially Protected Areas and Wildlife in the Wider Caribbean Region, January 18, 1990, 1 YIEL 441 (1990) [cited as “Kingston SPA Protocol 1990”]……………7 Ramsar Convention on Wetlands of International Importance especially as Waterfowl Habitat, February 2, 1971, 996 UNTS 245[cited as “Ramsar Convention 1971”]………….11 Treaty for Amazonian Co-operation, July 3, 1978, 17 ILM 1045 [cited as “Amazonian Treaty 1978”]…………………………………………………………7 United Nations Convention on the Law of the Sea, December 10, 1982, 1833 UNTS 397 [cited as “UNCLOS”]…………………….……..............................................................7, 9, 10 United Nations Framework Convention on Climate Change, May 9, 1992, 1771 UNTS 108 [cited as “CCC”]…………………………………………………………………….7, 9, 10, 11 NATIONAL LEGISLATIONS AS EVIDENCE OF GENERALLY RECOGNIZED PRINCIPLES OF LAW Civil and Commercial Code of Thailand (Pramoun Kodmhai Pang lae Panid) http://Ratchakitcha.soc.go.th/RKJ/index/index.htm, Last Accessed: August 26, 2007 [cited as “Thai Civil Code”]………………………………………………………..15,16,18,19 French Civil Code (Code Civil) at http://www.legifrance.gouv.fr/WAspad/ListeCodes Last Accessed: August 26, 2007 [cited as “Code Civil”]…………………………..15,16,18,19 German Civil Code (Bürgerliches Gesetzbuch) at http://bundesrecht.juris.de/bgb/index.html Last Accessed: August 26, 2007 [cited as “Bürgerliches Gesetzbuch”]…………..15,16,18,19
vii JUDICIAL DECISIONS Permanent Court of International Justice (PCIJ) Case Concerning the Factory at Chorzow (Germany-Poland), 1928 PCIJ (ser. A), No.17 (September 13) [cited as “Chorzow Factory”]………………………………………………20 Mavrommatis Palestine Concessions Case (Greece-Britain), 1924 PCIJ (ser. A), No. 2 (August 30) [cited as “Mavrommatis Palestine Concession”]…………… ………………..12 River Meuse Case (Netherlands-Belgium), 1937 PCIJ (ser. A/B) no.70 (June 28) [cited as “River Meuse”]………………………………………………………………………6 S.S. Wimbledon Case (Poland-Germany-France), 1923 PCIJ (ser. A) No.1 (June 28) [cited as “Wimbledon”]………………………………………………………………………..6 The Lotus (France-Turkey), 1927 PCIJ (ser. A), No.10 (September 7) [cited as “The Lotus”]…………................................. ……………………………………....12 International Court of Justice (ICJ) Barcelona Traction, Light and Power Co. (Belgium v. Spain), 1970 ICJ 32 (Feb 5) [cited as “Barcelona Traction”]………………… ……………………………...………...7,15 Certain Phosphate Lands in Nauru (Nauru v. Australia), 1992 ICJ 240 (June 26) [cited as “Nauru Case”]…………............................ …………………………………………7 Corfu Channel (U.K. v. Albania), 1949 ICJ 4 (April 9) [cited as “Corfu Channel”]…...........2 Eletronica Secular S.p.a., ELSI case, 1989 ICJ (July 20) [cited as “ELSI Case”]..................12 Fisheries Jurisdiction Case (United Kingdom v. Norway), 1951 ICJ (December 18) [cited as “Fisheries”]……………………………….…………………………………………6 Frontier Dispute (Burkina Faso v. Mali), 1986 ICJ (January 10) [cited as “Frontier Dispute”]………………………………………………………………….6 Gab ikovo-Nagymaros Project (Hungary v. Slovakia), 1997 ICJ 7(September 25) [cited as “Gab íkovo-Nagymaros”]………………….............………………………….passim Gulf of Maine case, 1984 ICJ (October 12) [cited as “Gulf of Maine”]……………………...6 Interhandel case (Switzerland V. U.S.), 1959 ICJ (March 21) [cited as “Interhandel”].........12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 29 (July 8) [cited as “Use of Nuclear Weapons”]……....................……………………….passim Libya-Malta case, 1985 ICJ (June 3) [cited as “Libya-Malta”]……………....….……………6
viii Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), 1986 ICJ (June 27) [cited as “Nicaragua”]……………………………………………………1 North Sea Continental Shelf , 1969 ICJ 3(Feb.20) [cited as “North Sea”]…………………...6 Nuclear Tests (Australia v. France), 1974 ICJ 253 (December 20) [cited as “Nuclear Tests Case (Australia v. France)”]….......................................................11 Request for an Examination of Situation in Accordance with Paragraph 63 of Court's Judgment of 20 December 1974 in Nuclear Tests (New Zealand v. France), 1995 ICJ 288 (September 22) [cited as “Request for an Examination (Nuclear Tests)”]…………………..9 Tunisia-Libya case, 1982 ICJ (February 24) [cited as “Tunisia-Libya”]…..............................6 United States Diplomatic and Consular Staff in Tehran, (U.S. v. Iran), 1980 ICJ 3 (May 24) [cited as “Diplomatic and Consular Staff in Tehran”]…… …..........……………………….2
International Arbitrations American Bell International v. Iran, (U.S. v. Iran), 1986, 12 Iran-U.S.C.T.R. 170...................2 Amoco International Finance Corp and Islamic Republic of Iran (KHEMCO) v. Iran, Award No.310-56-3, 15 Iran-U.S.C.T.R. (1987)………………….....................................................20 Benvenuti et Bonfant v. People's Republic of the Congo, 21 ILM 758 (1982)……………...20 British Property in Spanish Morocco, (Britain v. Spain), 1925, 2 RIAA 636………………...2 Elf Aquitaine Iran (France) v. National Iranian Oil Company (NOIC), YCA 1986, 97……..15 Foremost Tehran, Inc. v Islamic Republic of Iran, 1986, 10 Iran-U.S.C.T.R. 228……………2 Guinea-Guinea (Bissau) case, 1985, 25 ILM 252, the Arbitration Tribunal for the Delimitation of the Maritime Boundary between Guinea and Guinea-Bissau (Feb. 14), (translation of official French text) [cited as “Guinea v. Guinea (Bissau)”]…………………6 Inter-Entity Boundary Line between Bosnia and Herzegovina and Srpska, in ILM, 36 (1997) (Arbitral Tribunal judgments on 17 February 1997) [cited as “Inter-Entity-1997”]………………………………………………………...............6 Inter-Entity Boundary Line between Bosnia and Herzegovina and Srpska, in ILM (1999) (Arbitral Tribunal judgments on 15 March 1998) [cited as “Inter-Entity-1998”]……………………………………………………...………….6 Jane (U.S. v. Mexico), 1925, 4 RIAA 86 ……………………………………………………..2 Kuwait v. American Independent Oil Co. (AMINOIL), 66 ILR 602 (1982)……………..11,20 Lac Lanoux Arbitration (Spain v. France), 12 RIAA 281 (Perm. Court of Arb. 1957)……….7
ix
Libyan American Oil Co. (LIAMCO) v. Libyan Arab Republic, 20 ILM 1 (1981)…………20 MOX Plant (Ireland v. U.K.), 42 ILM 1187 (Permanent Court of Arbitration 2003)………...9 Norwegian Ship Owner’s Claims (1922), International Arbitral Award 307………………..20 Philips Petroleum Co. Iran v. Iran, Award No.425-39-2, 21 Iran-U.S.C.T.R. (1989)……….20 Ruler of Qatar v. International Marine Oil Co., 20 ILR 545 (1953)…………………………20 Southern Bluefin Tuna, (Australia & New Zealand v. Japan) P.I, Aug. 4, 2000, 39 ILM 1359...............................................................................................................................9 Texas Overseas Petroleum Co. & California Asiatic Oil Co. v. Libyan Arab Republic, 17 ILM 1, 29 (1978) [cited as “Texas & California Oil v. Libya”]……………………..11, 13 Tinoco Arbitration (UK v. Costa Rica) 1 RIAA 369 (1923)………………………………...18 Trail Smelter Arbitration (U.S. v. Canada) 3 RIAA (1905)…………………………………...7 Other International Judicial Decisions Case 180/98 U.K. v. Commission (European Court of Human Rights), 1998 E.C.R. I-2265 …………………………………………………………………………...9 Prosecutor v. Tadi , 1999 (International Criminal Tribunal for the Former Yugoslavia), Case IT-94-1, 12 ILR 1518 [cited as “Prosecutor v. Tadi ”].............................................................1 Shrimp/Turtle Case (WTO Appellate Body), 38 ILM 121 (1999)…………………………...10 Van Der Peet v. European Patent Organization (International Labor Organization Administrative Tribunal), Judgment 934, 8 December 1998………………………………...15 American Cases Adler v. Federal Republic of Nigeria, 219 F.3d 869 (9th Cir. 2000)………………………...19 Bovard v. American Horse Enterprises, the Supreme Court of California, 247 Cal. Rptr. 340 (1988)…………………………………………………………………..…………………….16 Sherwood v. Walker, the Supreme Court of Michigan, 66 Mich 568, (1887)……...………..16 Royal Bank of Canada v. Newell, 147 DLR (4th) 268 (NCSA)…..........................................16 Vout v. Hay et al case, the Supreme Court of Canada, 2 SCR 876 (1995)…………..............16 Schroeder v. Buchholz, the Supreme Court of North Dakota, 2001 ND 36, 622 NW2d 202..18
x European Cases Barclays Bank v. Boulter, the House of Lords, 4 ALL ER 513 (1999)…...............................16 Bell v. Lever Brothers Ltd., the House of Lords, ALL ER Rep.1 (1932)…............................16 CIBC Mortgages v. Pitt, the House of Lords, 4 ALL ER 433 (1993)…..................................16 Croizé v. Veaux, Cour de Cassation (The Supreme Court of France), S.1931. I…………….16 Royal Bank of Scotland v. Etridge (No.2), the House of Lords, 4 All ER 705 (2001)………16 Asian and Australian Cases Commonwealth of Australia v. State of Tasmania, the Supreme Court of Australia, 1983, 68 ILR 266…………………………………………………………………………………….8 Express Way Construction Agreement Case, Saan Deeka (the Supreme Court of Thailand) Deeka no.7277/2549, Decision of 15 February 2007……………………………………..16,19 Ha Yuan v. National Labour Relation Commissions (NLRC), the Supreme Court of the Philippines, G.R. No.147719, (January 27, 2006)…………………………………………...18
DECLARATIONS, STUDIES AND REPORTS OF THE UNITED NATIONS International Law Commission International Law Commission, Commentaries to the ILC Articles on Responsibility of States for Internationally Wrongful Acts, UN GAOR, 56th Session, Supp. No. 10, UN Doc. A/56/10 (2001) [cited as “ILC Draft Articles Commentaries”]…..........................................................2 International Law Commission, Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third Session, UN GAOR, 56th Session, Supp. No. 10, UN Doc A/56/10 (2001) [cited as “ILC Draft Articles”]……………………………………………………………1, 12 International Law Commission, Yearbook of the International Law Commission 18th Session, 1966, vol.II (part 1) [cited as “ILC Yearbook 1966”]………………………………………..14 International Law Commission, Yearbook of the International Law Commission 32nd Session, 1980, vol.II (part 2) [cited as “ILC Yearbook 1980”]………………………………………..13 United Nations General Assembly United Nations General Assembly Resolution 1803 (XVII), 17 UN G.A.O.R. Supp.(No.17), UN Doc.A/5217 (1962)…………………………………………………………………..11, 13
xi United Nations General Assembly Resolution 3171 (XXVII), Permanent Sovereignty over Natural Resources, 28 UN G.A.O.R. Supp.(No. 30), UN Doc.A/9030 (1973)……………………………………………………………………………………11, 13 United Nations General Assembly Resolution 3201 (S-VI), Declaration on the Establishment of a New International Economic Order, S-6 UN G.A.O.R. Supp.(No. 1), UN Doc.A/9559 (1974)……………………………………………………………………………………11, 13 United Nations General Assembly Resolution 3281 (XXIX), Charter of Economic Rights and Duties of States, 29 UN G.A.O.R. Supp.(No. 31) p.50, UN Doc.A/9631 (1974)……………………………………………………………………………………11, 13
United Nations International Conferences United Nations Conference on the Human Environment, June 5-16, 1972, Stockholm Declaration of Principles, UN Doc. A/CONF.48/14 (1973) [cited as “Stockholm”]…………………………………………………………………..passim United Nations Conference on Environment and Development, June 3-14, 1992, Rio Declaration on Environment and Development, UN Doc. A/CONF. 151/5/Rev. 1 (1992) [cited as “Rio”]… ………………………………………………………………………..passim United Nations World Summit on Sustainable Development, Johannesburg Declaration on Sustainable Development, September 4, 2002, UN Doc. A/CONF. 199/20 [cited as “Johannesburg”]……………………………………………………………...5, 8, 10 United Nations Conference on Trade and Development, Resolution 88 of UNCTAD's Trade and Development Board, 12 UN T.D.B.O.R. Supp.(No.1), UN Doc. TD/B/421 (1972)...11,13 Other United Nations Bodies United Nations Department for Policy Co-ordination and Sustainable Development, Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, September 1995…………….……………………………………10 United Nations Econ. & Soc. Council, Commission on Sustainable Development, Industry and Sustainable Development Report of the Secretary-General Addendum Industry and Environmental Protection, UN Doc.E/CN.17/1998/4/Add.3………………………………...10 United Nations Environmental Protection Agency, Draft Principles of Conduct in the Fields of the Environment for the Guidance of States in the Conservation and Harmonious Utilisation of Natural Resources Shared by Two or More States, 17 ILM 1097 [cited as “UNEP Draft Principles”]…………………………………………………………..7 United Nations Environmental Protection Agency, Information on World Heritage Convention at http://www.undp.org/biodiversity/biodiversitycd/frameWCH.htm, Last accessed: August 26, 2007 [cited as “UNEP Information”].............................................8
xii United Nations Educational, Scientific and Cultural Organization, UNESCO List of World Heritage Sites which are Habitats of Endangered Rhinoceros at http://whc.unesco.org/en/list/, Last accessed: August 26, 2007 [cited as “UNESCO World Heritage List”]………………...8 World Commission on Environment and Development, Report of the World Commission on Environment and Development: Our Common Future (The Brundtland Report), UN Doc. A/RES/42/187 (1987) [cited as “Brundtland Report”]…………………………..8, 9
TEACHINGS OF THE HIGHLY QUALIFIED PUBLICISTS Treatises Birnie, Patricia & Boyle, Alan, International Law and the Environment (2nd ed. 2002) [cited as “Birnie&Boyle”]……………………………………………..………...............passim Brownlie, Ian, Principles of Public International Law (6th ed. 2003) [cited as “Brownlie”]……………………………..............……...……………………...passim Cassese, Antonio, International Law (2nd ed. 2006) [cited as “Cassese”]………………………………….......................……………….6, 7, 10, 12 Crawford, James, the International Law Commission Articles on State Responsibility: Introduction, Text and Commentary, (2002) [cited as “Crawford ILC Commentaries”]…1, 2 Evans, Malcolm D. (editor), International Law (2nd ed. 2006) [cited as “Evans”] - Boyle, Alan, “Soft Law in International Law Making”, at Chapter 5……………………10 - Crawford, James & Olleson, Simon, “Nature and Forms of International Responsibility” at Chapter 15……………………………………………………………………………….12 - Redgwell, Catherine, “International Environmental Law”, at Chapter 22………………...7 - Thirlway, Hugh, “The Sources of International Law”, at Chapter 4………………………6 Garcia-Amador, F.V., The Changing Law of International Claims (1983)………………….14 Goldsmith, Jack, & Posner, Eric, The Limits of International Law (2005)…………………...7 Jägers, Nicola, Corporate Human Rights Obligations: in Search of Accountability (2002)…..1 Jennings, Robert & Watts, Arthur, Sir, Oppenheim’s International Law (9th ed. 1992) [cited as “Oppenheim”]……… …………..………………..………………2, 11 Lowe, A.V., “Sustainable Development and Unsustainable Arguments”, in Alan Boyle and D. Freestone, (eds.), International Law and Sustainable Development: Past Achievements and Future Prospects (1999)……………………………………………………………………...10 Lyster, Simon, International Wildlife Law (1985)……….…...……………………………….8
xiii
McClintock, Henry L., Handbook of the Principles of Equity (1948)……………………….19 Murphy, “Limitations upon the Power of a State to Determine the Amount of Compensation Payable to an Alien upon Nationalization”, in 3 the Valuation of Nationalized Property in International Law 49 (R. Lillich ed. 1975)…………..……………………………………….14 Provost, René, International Human Rights and Humanitarian Law (2002)………………….7 Sands, Philippe, Principles of International Environmental Law (2nd ed. 2003) [cited as “Sands”]…………………………………………………..…………………...passim Sands, Philippe, International Law in the Field of Sustainable Development, 65 BYIL 303, (1994)…………………………… …………………………………………………………..10 Shearer, Ian, Starke’s International Law (11th ed. 1994)…….………………………………..7 The Commission on European Contract Law, Principles of European Contract Law, Brill, November 11, 1999 [cited as “European Contract Principles]……………………………..16 Trouwborst, Arie, Evolution and Status of the Precautionary Principle in International Law (2000)………………………………………………………………………………………….9
Articles and Journals Abass, Ademola, Consent Precluding State Responsibility: a Critical Analysis, 55 International and Comparative Law Quarterly, (2004)………………………………………..2 Adams, Patricia, Iraq’s Odious Debts, Cato Inst. Policy Analysis, No.526 (2004)………….18 Alexander, Justin, Downsizing Saddam's Odious Debt, Middle East Report, March 2, 2004..........................................................................................................................17 Anna-Gelpern, Anna, What Iraq and Argentina Might Learn from Each Other, 6 CHI. J. INT’L L. 391 (2005)…............................................................................................................18 Chander, Anupam, Odious Securitization, 53 Emory Law Journal 923 (2004)…………......18 De Aréchaga, Jiménez, State Responsibility for the Nationalization of Foreign Owned Property, 11 NYUJ INT'L L. & POL. 179 (1978)…………………………………………...14 Dolzer, Rudolf, New Foundations of the Law of Expropriation of Alien Property, 75 AJIL 553 (1981)…............................................................................................................................14 Feibelman, Adam, Contract, Priority, and Odious Debt, 85 N.C.L. Rev. 727, 728 (2007)…………………………………………………………………………..…………….18 Feinerman, James, Odious Debts: Old and New, Georgetown Univ. Law Ctr. Working Paper (2004)……………………………………………………………………...…………………18
xiv
Khalfan, Ashfaq, King, Jeff & Thomas, Bryan, Advancing the Odious Debt Doctrine, Centre for Int’l Sustainable Dev. Law, Working Paper No.COM/RES/ESJ (2003)……………..17,18 Kremer, Michael & Jayachandran, Seema, Odious Debt, 96 American Economic Review 82 (2006)……………………………………………………………………………...…………18 McIntyre, Owen & Mosedale, Thomas, The Precautionary Principle as a Norm of Customary International Law, 9 Journal of Environmental Law 221 (1997)…………………...................9 Paulus, Christoph G., “Odious Debts” vs. Debt Trap: A Realistic Help?, 31 BROOK. J. INT’L L. 83 (2005)…..............................................................................................................18 Rajan, Raghuram, Odious or Just Malodorous?, FIN. & DEV (December 2004)……….......18 Sachs, Jeffrey D., Sustainable Development, 304 Science 649, (2004)……… ………………9 Schachter, Oscar, Compensation for Expropriation, 78 AJIL 121 (1984)………..………….14 Stiglitz, J, Odious Rulers, Odious Debts, Atlantic Monthly, (November 2003)……………..18 The International Commission of Jurists, Transnational Corporations in South Africa and Namibia the Review of the international Commission of Jurists, No.36-39 (1986-87)……...17 Weston, Burns H., The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 AJIL 437 (1981)…………………………………….………14
xv
STATEMENT OF JURISDICTION
The Republic of Hwange (Applicant) and the Democratic Republic of Cataya (Respondent) jointly submit the present matter to the International Court of Justice (“ICJ”). Both are parties to the Statute of the Court by virtue of membership in the United Nations, pursuant to Article 93, paragraph 1 of the Charter of the United Nations. Under Article 40, paragraph 1 of the Statute of the ICJ, States may bring cases before the Court “either by the notification of the special agreement or by a written application addressed to the Registrar.”
The parties have exhausted other means of pacific settlement of disputes on the issue of mineral extraction. As for the issue of compensation, neither Cataya nor CoCoCat has attempted to seek local remedy in Hwange which are still available at the moment.
On 11 May 2007, the said parties signed a special agreement to submit the disputes to ICJ. As members in good standing, both parties consent to the jurisdiction of this Court regarding their differences concerning the Hwange Black Rhinoceros. The joint notification was transmitted to the Registrar of the Court on the same date.
The Registrar of the Court acknowledged the receipt of the joint notification on 22 May 2007, and informed that the case has been entered as 2007 General List No.112.
xvi
QUESTIONS PRESENTED
I.
Whether international law oblige Cataya to prevent CoCoCat from coal extraction activities in the B.C. Jay Nature Reserve;
II.
Whether Hwange’s efforts to perform its duty under international law in protecting the Hwange Black Rhinoceros render Cataya a right to compensation.
xvii
STATEMENT OF FACTS
The Democratic Republic of Cataya (“Cataya”), is a strong developing country with great economic growth and has one of the world’s largest populations. However, its consumption of fossil fuel is unbalanced with its energy demands. Record (“R”)3,4. The Republic of Hwange (“Hwange”) is in contrast recognized by the United Nations (“UN”) as a least developed country, being landlocked and is stricken by a civil war. Its only hope is in its abundant natural resources including coal. R1,2,23. Hwange is also a home to the Hwange Black Rhinoceros (“the Rhinoceros”). Hwange had suffered incredibly under Robbet Morgue; a liberator turned corrupt dictator, whose autocratic regime during 19822006 had brought the Republic to its knees. Morgue destroyed constitutional checks and balance, committed mass murder, grossly infringed human rights, arbitrarily seized private properties, and caused the food production and health care system of the country to collapse. R12,13,16-19. Since 1999, the European Union, the United States and numerous organizations has condemned the Morgue regime and demanded a new government. R14. In 2005, Cataya-Hwange Agreement on Bilateral Investment and Trade (“CHABIT”) was autocratically signed by Morgue. (See Appendix) R20. In April 2005, the Coal Company of Cataya (“CoCoCat”) was granted a concession right to extract coal in an area known as Rabbet Morgue Reserve, now known as the B.C. Jay Nature Reserve (“the Reserve”), in Hwange. Morgue signed the agreement on behalf of Hwange, and 12 Million Euros were paid to the Hwange Treasury and the Natural Resources Ministry controlled by Morgue’s two sons. R21,23. The 12 million euro were subsequently stolen by the Morgue regime. R30.
xviii In February 2006, Morgue and his two sons were killed in civil war fought by Hwange Independent Party. Colonel B.C. Jay became the President of Hwange. R23. Unlike the Morgue regime, the Jay government was immediately recognized by Cataya and the UN. R24. In June 2006, Hwange informed Cataya that the concession agreement was concluded without any proper Environmental Impact Assessment (“EIA”). R25. Cataya replied acknowledging the concern of the extraction impact on the Hwange Black Rhinoceros (“the Rhinoceros”), which lives in the specially protected area of the Reserve, however insisted that it continue with the extraction. R10,26. The Rhinoceros is among the most seriously endangered species listed on Appendix I of CITES with the current remaining population of only 1,200 in the Reserve. R10,11. In September 2006, an undisputed EIA was concluded with 90% probability that CoCoCat extraction activities would cause the extinction of the Rhinoceros within 20 years. R27 Hwange and Cataya then exchanged several diplomatic notes regarding their differences regarding the extraction activities by CoCoCat and issues of compensation. CoCoCat did not seek any form of local remedy regarding compensation. R28-31. The parties entered into formal consultations, negotiations and mediation but failed to resolve the matter. R32,33. On 11 May 2007, the parties jointly submitted this matter to this Honorable Court to resolve the dispute. R34-36.
xix
SUMMARY OF ARGUMENTS
I.
Cataya has an obligation to prevent violation of international law through the acts of CoCoCat. Particularly, Cataya has a duty under the Convention on Biological Diversity and customary principles to prevent CoCoCat from proceeding with extraction activity. Cataya is also bound by jus cogens to respect Hwange’s sovereignty over its resources, and may not let CoCoCat to proceed with extraction activity without Hwange’s consent.
II.
Cataya may not claim any compensation for CoCoCat because the local remedy has not been exhausted. Alternatively, Hwange is not liable for any compensation because (1) Hwange withdrew concession rights due to necessity, or (2) there was no taking of CoCoCat’s property and the protection of investment under CHABIT is invalid, or (3) the concession agreement is invalid, or (4) the debts are odious. Alternatively, should the Court find Hwange liable for any compensation, it should be limited to an appropriate amount.
1
ARGUMENTS & AUTHORITIES
I.
CATAYA HAS AN OBLIGATION TO PREVENT COCOCAT FROM EXTRACTING COALS IN B.C. JAY NATURAL RESERVE
A. CATAYA IS RESPONSIBLE FOR THE CONDUCT OF COCOCAT While Hwange does not recognize CoCoCat as a State entity or a government unit, CoCoCat’s conducts are however attributable and imputable to Cataya because Cataya exercises an effective control over and has interests in extraction activities of CoCoCat.
1. Cataya exercises an effective control over CoCoCat A State is responsible for the acts of non-State entities if the private conduct is directed or controlled by the State.1 Non-State entities, including companies, do not have to involve “governmental authority”.2 In Nicaragua, this Court reaffirmed that a State is liable for humanitarian violations committed by non-State actors outside its territory, provided that that State must have effective control over the non-State actor’s conducts in the course of which the alleged violations were committed.3 The same rule was reaffirmed by the International Criminal Tribunal for the Former Yugoslavia.4 In this case, CoCoCat is a Cataya-owned entity. The decisions and actions are all effectively controlled by Cataya and are thus imputable to Cataya. 1
ILC Draft Articles, Art.8
2
Crawford ILC Commentaries, p.100; Jägers, Corporate Human Rights Obligations: in Search of Accountability, 2002, p.140 3
Nicaragua, p.14
4
Prosecutor v. Tadi , p.1541
2 2. Cataya has interests in proceeding with the extraction activity If a State has an interest in a corporation’s conduct and rely on the “corporate veil” as a mere device for a State to achieve particular purposes, such conduct can be attributed to the State.5 Cataya has interests in coal extraction to meeting the demand of its economy. The diplomatic notes confirm that Cataya is in the position of controlling and looking after interests of the coal extraction. Thus, CoCoCat’s activities are imputable to Cataya.
3. Cataya has a duty to prevent CoCoCat from violating international law States must exercise due diligence in executing their international obligations.6 Attributable conducts may consist of actions or omissions,7 and States are responsible for failures in preventing such violation or for adopting such act.8 This Court has stressed that States have a duty to guard against violations of international law and not to neglect the means at their disposals to prevent harm.9 In this case the extraction has not begun and there has been no violation of international law. Nevertheless, Cataya must prevent CoCoCat from proceeding with extraction activities according to the following obligations.
5
Crawford ILC Commentaries, pp.107-8; Foremost-Tehran v. Iran, 1986, 10 Iran-U.S.C.T.R., p.228; American Bell International v. Iran, 1986, 12 Iran-U.S.C.T.R., p.170; Abass, “Consent Precluding State Responsibility: a Critical Analysis”, 55 International and Comparative Law Quarterly, (2004), p.211 6
Oppenheim, p.156; Birnie&Boyle, p.182
7
ILC Draft Articles Commentaries, p.70
8
Jane Case (U.S. v. Mexico), 1925, 4 RIAA 86; British Property in Spanish Morocco, 1925, 2 RIAA 636
9
Corfu Channel, p.4; Diplomatic and Consular Staff in Tehran, para.68
3 B. CATAYA HAS A PARTICULAR DUTY UNDER ARTICLE 5 OF THE CBD TO COOPERATE WITH HWANGE BY PREVENTING COCOCAT FROM EXTRACTION ACTIVITIES
The Convention on Biological Diversity (“CBD”) imposes a legal obligation on Cataya to “as far as possible and as appropriate, cooperate with [Hwange]… for the conservation…of biological diversity”.10 The term “as far as possible” ordinarily means that the duty to cooperate cannot be derogated unless overwhelmed or rendered impossible by other factors, whereas the term “as appropriate” indicates that the circumstance of the case, such as legal obligations of the parties, objectives of the convention or the severity of the threat upon biological diversity, must be taken into account. It would be inappropriate, for instance, to demand financial contribution for the purpose of general conservation of an already well protected species. The Court should consider the scope and nature of Cataya’s obligation to cooperate according to the following interpretations. 1. Textual interpretation prohibits extraction The Court should firstly interpret Cataya’s obligation according to the text of the treaty and its preamble in light of its object and purpose.11 CBD imposes “responsibility” on States to conserve biological diversity, prevent the loss, and to preserve it for present and future generations.12 Art.3 CBD underlines a principle that a State has a sovereign right to exploit its resources according to its policies however it must not cause environmental damage beyond its territory. Thus, as Cataya is exploiting a resource within the jurisdiction of Hwange, a
10
CBD, Art.5
11
VCLT, Art.31(1)(2)
12
CBD, preamble, especially para.6,9,24
4 reasonable interpretation13 consequently obliges Cataya to respect Art.3 in good faith by not causing harm to the Hwange’s environment and biological diversity. It should be noted that the current Hwange’s policy under the Jay government is to develop its economy by not sacrificing its biological diversity. Any action that would threaten or harm the Rhinoceros is unacceptable. Art.8 CBD also imposes duties of “in-situ conservation” on States such as to protect, regulate, rehabilitate, maintain, prevent threats or improve in-situ conditions. The condition of the Rhinoceros in the B.C. Jay reserve is considered in-situ as it is a genetic resource which exists within ecosystem and natural habitat.14 Particularly, Cataya has a duty to support in-situ conservation especially of Hwange which is a developing country.15 In this case, Cataya does not dispute the EIA result that the extraction by CoCoCat would cause a severe decline in an already few population of the Rhinoceros, and would lead to an extinction. This would effectively destroy Hwange’s biological diversity, a term defined in the convention as the “variability among living organisms from all sources of living”. 16 In this case, the extraction would destroy the variety of the genetic level within the specie of Hwange Black Rhinoceros, and between the various species of rhinoceros, and of the ecosystem. Therefore, the textual interpretation of CBD Art.5 which take into account CBD’s object and purpose as well as Art.3 and Art.8, oblige Cataya to cooperate in good faith by preventing CoCoCat from proceeding with the extraction activities to prevent the extinction of Rhinoceros.
13
VCLT, Art.26 and Art.31(1)
14
CBD, Art.2 para.12
15
CBD, Art.8(m)
16
CBD, Art.2
5 2. Contextual interpretation prohibits extraction The Court should also consider any agreement and instrument made by Cataya that is related to the context of CBD to arrive at a correct interpretation of Art.5.17 In this case Cataya is a party to CITES in which the Rhinoceros is listed in Appendix I among the most seriously endangered species, and Cataya is obliged by CITES to follow strict regulations to prevent the Rhinoceros from becoming extinct.18 Cataya is bound by its recognition that “wild fauna…in varied forms are an irreplaceable part of the natural systems of the earth which must be protected”.19 Cataya has also consistently declared to be bound by principles enshrined in the Stockholm Declaration, the Rio Declaration, and the Johannesburg Declaration, all of which express international commitment in conserving biological diversity.20 Therefore, the contextual interpretation of CBD Art.5 obliges Cataya to conserve biological diversity and protect the Rhinoceros from extinction by preventing CoCoCat from extraction activities. 3. Interpretation in regards of relevant rules of international law prohibits extraction The Court should also consider relevant rules of international law applicable to the parties.21 These are firstly the customary principles on environmental protection which are elaborated in Argument C.22 Moreover the rules include principles of equity and proportionality which are needed to balance all the pertinent considerations of the 17
VCLT, Art.31(2)
18
CITES, Art.II(1), Art.III
19
CITES, preamble para.1
20
Stockholm, principle-24; Rio, principle-27; Johannesburg, para.13,16
21
VCLT, Art.31(3)
22
See infra p.6
6 circumstances of the case.23 Particularly, this Court gave more weights to the maintenance and conservation of living resources,24 whereas economic factors have been ruled out as secondary factors.25 This Court also reaffirmed that even in a grave circumstance of exercising a right of self-defence; States must nevertheless take environmental considerations into account.26 Thus, when the circumstance involves issues of economic interests which are of a less grave nature than the State security, the obligation to protect the environment indubitably remains a primary concern. Art.22 of CBD also bars Cataya from asserting other existing international agreement, including CHABIT, to derogate its obligation to conserve the Rhinoceros, because if CoCoCat proceed with extraction, it would cause serious threat to biological diversity. Therefore, it is equitable and proportional in this case for Cataya to cooperate in conservation of the Rhinoceros notwithstanding its economic interests. While the extraction would lead to an irreversible extinction of the Rhinoceros and a permanent damage of biological diversity, there are on the other hand numerous alternatives for Cataya to meet its energy demands. The Government of Hwange is willing to resume the negotiation to seek appropriate solution that is consistent with principles of international law. C. CATAYA
HAS A PARTICULAR DUTY UNDER CUSTOMARY PRINCIPLES TO PREVENT
COCOCAT FROM EXTRACTION ACTIVITIES This Court may enforce international custom27, evidenced by state practice motivated by a sense of legal obligation.28 These principles also complement the interpretation of
23
River Meuse, p.77; Wimbledon, p.32; Libya-Malta, para.48-73; North Sea, para.101D; Fisheries, para.30; Frontier Dispute, para.63; Inter-Entity-1997, p.399; Inter-Entity-1998, p.536; Brownlie, p.25, 218; Cassese, p.155; Thirlway, “Sources of International Law”, in Evans, p.136 24
Gulf of Maine, para.110
25
Tunisia-Libya, para.106; Libya-Malta, para.50; also Guinea-Guinea (Bissau), p.688-9
26
Use of Nuclear Weapons, p.266
27
ICJ Statute, Art.38(1)(b)
7 Cataya’s “duty to cooperate” under Art.5 of CBD. Cataya has a duty to prevent CoCoCat from extraction activities under any of the following principles. 1. Cataya is obliged by the Principle of Preventive Action States have a duty to take an action at an early stage to prevent possible environmental damage before it actually occurs. The principle is found in CBD29 and CITES,30 both of which Cataya is a party, and can be accepted as an international custom. 31 This Court also stressed that “in the field of environmental protection, vigilance and prevention are required”.32 The obligation to conserve habitat and endangered species from becoming extinct is widely accepted in regional instruments.33 This international custom provide a critical guiding rule that a derogation from preventive action or conservation is strictly limited to few unavoidable circumstances such as to avert serious damage to public health and safety.34 In this case, if the coal extraction were to proceed, there would be a 90% probability for the Rhinoceros to become extinct, and the harm is irreversible. Cataya thus has a duty to take a preventive action at an early stage by preventing CoCoCat from extraction activities.
28
Barcelona Traction, p.32; Provost, International Human Rights and Humanitarian Law, 2002, p.124; Shearer, Starke’s International Law, 1994, p.31; Goldsmith&Posner, Limits of International Law, 2005, p.23 29
CBD, preamble para.9,Art.1-Art.14
30
CITES, Art.2
31
World Heritage Convention, Art.4; CCC, Art.2; UNCLOS, Art.194(1); Espoo Convention, preamble and Art.2(1); Stockholm, principles-6,7,15,24; UNEP Draft Principle, Principle 1; Rio, principle-11; Nauru Case, p.244; Lac Lanoux, 12 RIAA 281; Trail Smelter(1905), 3 RIAA p.182; Birnie&Boyle, p.109; Brownlie, p.283; Cassese, p.379; Redgwell, “International Environmental Law”, in Evans, pp.663-4; Sands, p.247 32
Gab íkovo-Nagymaros, para.140
33
Africa: African Nature Convention 1968, Art.II and XI; Nairobi SPA Protocol 1985, Art.2; America and Caribbean: Amazonian Treaty 1978, Art.I; Kingston SPA Protocol 1990, Art.3(1) ; Asia: ASEAN Conservation Agreement 1985, Chapter II; Europe: Berne Convention 1979, Art.2; Alps Convention 1991, Art.2; EC Habitats Directive 1992, Art.1; South Pacific: Apia Convention 1976, Art.III(3) and V(1); Noumea Convention 1986, Art.11 34
E.g. Berne Convention 1979; Art.9(1); EC Habit Directive 1992, Art.16
8 2. Cataya is obliged by the Principle of Conservation of Natural Heritage This principle is found in the Convention for the Protection of the World Cultural and Natural Heritage. Although Cataya is not a party to the convention, its status of international custom is evidenced by more than 170 countries that have adhered to the convention, with over 120 countries already designated and protected numerous heritage sites which are respected by the international community.35 Publicists consider the convention as a source of the basic principles of wildlife protection under international law.36 The Convention imposes a duty on “the international community as a whole” to protect and conserve the world’s natural heritage37, which includes inter alia sites which are habitats of threatened species of outstanding value.38 States have a duty to do all it could to achieve the objective of protecting World Heritage,39 and to consider the World Heritage Convention as a “general or universal responsibility for the protection…of the heritage” which gives a real obligation that must be respected in good faith.40 The Court should note that many of the protected Heritage sites under the Convention are habitats of endangered black rhinoceros and similar species. These sites include for instance the Manovo-Gounda St.Floris National Park in Central African Republic,41 the Selous Game Reserve in Tanzania42, the Garamba National Park in Congo43 and Kaziranga
35
UNEP Information at http://www.undp.org/biological diversity/biological diversitycd/frameWCH.htm, last accessed: August 26, 2007 36
Simon Lyster, International Wildlife Law, 1985, part IV; Birnie&Boyle, p.616; Sands, p.611
37
World Heritage Convention, Art.4 and Art.6
38
Ibid., Art.2
39
Commonwealth of Australia v. State of Tasmania (1983), 68 ILR 266
40
Ibid., pp.340,379,423
41
UNESCO World Heritage List, Ref.475, listed-in-1988, at http://whc.unesco.org/en/list/
42
Ibid., Ref.199, listed-in-1982
43
Ibid., Ref.136, listed-in-1980
9 National Park in India.44Although the Morgue regime did not nominate the Reserve for listing, the B.C. Jay Reserve is nevertheless the habitat of the endangered Hwange black rhinoceros, recognized by Cataya as Hwange’s national symbol, that deserves protection under international custom just as other sites, and Cataya has a duty to protect. 3. Cataya is obliged by the Precautionary Principle States must avoid unreasonable lack of diligence in preventing harm extraterritorial harm.45 The principle has been reaffirmed by this Court and other tribunals46. Particularly in this case, CBD provides “where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.”47 In this case, the EIA released by Hwange indicating 90% extinction probability of the Rhinoceros is considered a credible scientific assessment. Nevertheless, even if Cataya disagrees with the EIA, it is bound under this principle to proceed with due diligence by stopping CoCoCat from extraction activity. 4. Cataya is obliged by the Principle of Sustainable Development Modern science has proven that careless economic development has caused substantial harm to the environment and the people, born or unborn.48 States thus have a duty to ensure that its development meets the need of the present without compromising the needs
44
Ibid., Ref.337, listed-in-1985
45
UNCLOS, Art.194; CCC, Art.3(3); North American Agreement 1993, preamble; Cartagena Protocol, preamble; OSPAR 1992, Art.2(2)(a); Stockholm, principle-21, Rio, principle-15; Johannesburg, para.23; McIntyre & Mosedale, the Precautionary Principle as a Norm of Customary International Law, 9 J. Envtl. L. 221 (1997), p.235; Arie Trouwborst, Evolution and Status of the Precautionary Principle in International Law, 2000, p.248; Birnie & Boyle, p.115; Brownlie, p.275; Sands, p.266 46
Use of Nuclear Weapons, p.29; Request for an Examination (Nuclear Tests), p.288 (Palmer, J., dissenting); U.K. v. Commission, 1998 E.C.R.I-2265, p.2265; Southern Bluefin Tuna, 12 RIAA 281; MOX Plant, 42 ILM, pp.1187,1190 47
CBD, preamble para.10
48
J.Sachs, Sustainable Development, 304 Science 649 (2004)
10 of future generations.49 International conventions50 and declarations, several of which are joined by Cataya,51 have shown great acceptance of this principle. This Court has stressed the need to “reconcile economic development with protection of the environment” and to “look afresh at the effects on the environment” 52 and to take into account the “generations unborn”.53 Publicists recognize sustainable development no less than an emergent and guiding legal principle which complements the development of the existing principles of international law to meet the growing urgency of environmental protection.54 “The solutions required for global environmental problems cannot only be taken by sovereign nations…Shifting the global economy onto a sustainable path requires an unprecedented degree of international cooperation.”55 Being the ‘manufacturing capital of the world’ with populations over 1.1 billion, Cataya exploits tremendous amount of resources of the world to achieve its economic goals. Cataya must ensure that it does not neglect need of the future generations, which include the need to have a healthy environment and undamaged biological diversity. The protection of the Rhinoceros from extinction in the case is merely a part of an international obligation
49
The Brundtland Report, p.43; United Nations, Department for Policy Co-ordination and Sustainable Development, Report of the Expert Group Meeting on Identification of Principles of International Law for Sustainable Development, September 1995 50
Whaling Convention, 1946, preamble; World Heritage Convention, preamble; CITES; preamble; CBD, preamble; CCC, preamble; UNCLOS, Art.61(3); GATT, Art.XX (g)
51
Stockholm, principle-1; Rio, principle-3,4; Johannesburg, para.1
52
Gab íkovo-Nagymaros, para.140; see also Shrimp/Turtle Case, 38 ILM 121 (1999), para.129
53
Use of Nuclear Weapons, p.226
54
Boyle, “Soft Law in International Law Making”, in Evans, p.154; Birnie&Boyle, p.84; Brownlie, p.276; Cassese, p.384; Lowe, “Sustainable Development and Unsustainable Arguments”, in Boyle and Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Prospects, 1999,p.19; Sands, p.266; Sands, “International Law in the Field of Sustainable Development”, 65 BYIL 303, 1994; 55
ECOSOC, Commission on Sustainable Development, Industry and Sustainable Development Report of the Secretary-General, U.N. Doc.E/CN.17/1998/4/Add.3, para.33
11 which the Court should enforce to protect the biological diversity and other resources for both the present and future generations of the World.
D. IN
ANY EVENY,
CATAYA
IS BOUND BY JUS COGENS TO RESPECT
HWANGE’S
SOVEREIGNTY OVER ITS NATURAL RESOURCES
Even if this Court finds that Cataya has no obligation to prevent damage to Hwange’s biological diversity, Cataya still has an obligation to respect Hwange’s permanent sovereignty over its coal reserves. The UN Charter imposes a fundamental rule on States to respect their equal sovereignty and to honor this rule above all other international obligations.56 Sovereignty allows States to conduct or authorize activities within their territory under limits of international law.57 The principle of State’s sovereignty over its natural resources has been consistently reaffirmed by UN General Assembly resolutions58 and major international instruments.59 Its application is confirmed by this Court60 and other international tribunals.61 Hwange’s sovereignty over its coal reserves therefore must be treated as jus cogens or as a norm recognized by international community of States from which no derogation is
56
UN Charter, Art.2(1) and Art.103
57
Brownlie, p.287; Oppenheim, p.339; Sands, p.236;
58
GA Res.3171(XXVII), Permanent Sovereignty over Natural Resources, 28 UN GAOR Supp.(No.30) p.52, UN Doc.A/9030 (1973); GA Res.1803(XVII), 17 UN GAOR Supp.(No.17) p.15, UN Doc.A/5217 (1962); GA Res.3201(S-VI), Declaration on the Establishment of a New International Economic Order, S-6 UN GAOR Supp.(No.1) p.3, UN Doc.A/9559 (1974); and GA Res.3281(XXIX), Charter of Economic Rights and Duties of States, 29 UN GAOR Supp.(No.31) p.50, UN Doc.A/9631(1974); See also Res.88 of UNCTAD's Trade and Development Board, 12 UN TDBOR Supp.(No.1) p.1 59
Ramsar Convention 1971, Art.2(3); International Timber Agreement 1994, Art.1; Basel Convention 1989, preamble; CCC 1992, preamble; CBD, Art.3 and Art.15(1); Stockholm, principle-21; Rio, principle-2 60
Nuclear Tests Case (Australia v. France), p.253
61
Texas&California v. Libya, para.87; Kuwait v. AMINOIL, 21 ILM 976 (1982)
12 permitted.62 PCIJ explained that States may not exercise its power in any form in the territory of another state except by virtue of permissive rule derived from international law.63 Therefore, Cataya is bound by jus cogens and Art.3 of CBD to respect Hwange’s permanent sovereignty and must prevent CoCoCat from proceeding with the extraction in Hwange’s territory. Should CoCoCat proceed with extraction activities, Cataya would violate international law.
II.
HWANGE IS NOT LIABLE FOR THE COMPENSATION CLAIMED BY CATAYA
A. CATAYA MAY NOT BRING A CLAIM TO THIS COURT ON BEHALF OF ITS NATIONAL Local remedies must be exhausted before a State can bring a claim on behalf of its nationals by virtue of diplomatic protection.64In this case, Cataya may not bring the claim regarding compensation on behalf of CoCoCat as local remedy in Hwange has not been exhausted.
B. IN THE ALTERNATIVE, HWANGE IS NOT OBLIGED TO PAY FOR ANY COMPENSATION Even if the Court finds that the local remedy has been exhausted, Hwange is not liable for compensation for any of the following reasons. 1. Hwange is precluded from any wrongfulness under the principle of necessity States are precluded from wrongfulness arising from the action which is the only way for it to safeguard its essential interest against an imminent peril.65 In Gab íkovo-Nagymaros, 62
VCLT, Art.53; Brownlie, p.489; Cassese, p.89
63
Lotus case, pp.19-20
64
Mavrommatis Palestine Concessions, p.12; Interhandel, p.27; ELSI Case, pp.42-44; ILC Draft Articles, Art.44(b); Brownlie, p.472 65
ILC Draft Articles, Art.25; Crawford&Olleson,“Nature and Forms of International Responsibility”, in Evans, p.461
13 this Court accepted the principle as a customary international law and accepted that a State’s concern for its natural environment is an essential interest, and reaffirmed the commentaries of the ILC that such peril includes a “danger to…the preservation of all or some of the territory of a State” and recognized the necessity of “safeguarding the ecological balance”.66 Hungary’s claim of necessity was rejected only because it failed to show that there was an imminent risk and that it had no other available options to avoid such risk but to abandon the project.67 Necessity has a standing in this case. While the environment and biological diversity of Hwange is clearly an essential interest to Hwange and the international community, the imminent risk of extinction of Rhinoceros is known from the EIA result. Hwange also had exhausted all other measures to avoid the extinction by seeking cooperation from CoCoCat and Cataya. Thus withdrawing CoCoCat’s right of extraction was Hwange’s last possible measure to safeguard its biological diversity from an imminent danger, and Hwange is precluded from any international responsibility. 2. In any event, Hwange has no duty under international law to compensate for a lawful expropriation a. Hwange did not expropriate any foreign property This Court reaffirmed that consistent UNGA resolutions may provide evidence of a legal norm.68 There is clear evidence that modern international law recognizes economic rights of States to refute a full compensation, and appropriate compensation is given strictly only in case of the taking of foreign property.69 This principle is justified under the new
66
Gab íkovo-Nagymaros, para.53; ICL Yearbook, 1980, pp.39-49
67
Gab íkovo-Nagymaros, para.57
68
Use of Nuclear Weapons, para.70
69
Supra note 58; Texas&California v. Libya, p.29
14 world economic order, where poor States should have a legal right to protect its national interests against unfair use of economic power of wealthier States.70 In this case, Hwange only withdrew a concession right given to CoCoCat without taking any foreign property. b. Hwange is not bound by CHABIT to compensate for investment Hwange’s consent to be bound by CHABIT is invalid because Cataya indirectly corrupted Hwange’s representative to obtain Hwange’s consent to CHABIT.71 Cataya was aware that Morgue’s regime had been acting only for its own benefit without considering Hwange’s interest. Cataya needed CHABIT as its access to Hwange’s abundant resources. To obtain Hwange’s consent, Cataya indirectly corrupted Morgue by offering CHABIT as a door to future investments which would be benefiting Morgue and his sons. This is confirmed when CHABIT led to a concession agreement with CoCoCat in which a corruption of 12 million euros went to Morgue’s sons. Alternatively, Hwange may terminate or withdraw from CHABIT due to a fundamental change in circumstance which affects the basis of Hwange’s consent to be bound by CHABIT and radically transforms Hwange’s obligations.72 In Gab íkovoNagymaros, this Court noted that “the prevailing political situation was certainly relevant for the conclusion of the treaty”, and noted further that the political situation must be closely linked to the giving of consent to the treaty in order to be claimed as a fundamental change.73
70
Garcia-Amador, The Changing Law of International Claims(1983), p.753; Schachter, Compensation for Expropriation,78 AJIL 121(1984); J. de Aréchaga, State Responsibility for the Nationalization of Foreign Owned Property, 11 NYUJ INT'L L.&POL. 179(1978); Dolzer, New Foundations of Law of Expropriation of Alien Property, 75 AJIL 553(1981); Murphy, Limitations upon the Power of a State to Determine Amount of Compensation Payable to Alien upon Nationalization, in 3 Valuation of Nationalized Property in International Law 49 (R.Lillich ed.1975); Weston, Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 AJIL 437(1981) 71
VCLT, Art.50; ILC Yearbook 1966, pp.244-45
72
VCLT, Art.62;
73
Gab íkovo-Nagymaros, para.104
15 The fundamental change in this case is the change from Morgue regime to a true Hwange’s government, which is closely linked to Hwange’s consent to be bound by CHABIT. The basis of Hwange’s consent was an autocratic decision expressed solely by Morgue to create an opportunity for corruption from investments, and at the time there was no checks and balance by the Hwange parliament. However at present, the Jay government would only consent to CHABIT if it is in the true interests of Hwange, and the parliament would had played a significant role. The new EIA information is an example showing that the Jay government would not have concluded CHABIT without securing a clause that would require an EIA before an investment is allowed. The act of Morgue regime radically affected the scope of the obligation of Hwange. Hwange could not have known that by allowing investment under CHABIT, it would be allowing an activity that would severely damage the environment which is inconsistent with its obligations under international law. 3. In any event, the concession agreement between CoCoCat and Hwange is unenforceable The Court may apply general principles of law recognized by civilized nations.74 Under any of the following principles, Hwange declares that the concession agreement is void, and the rights and obligations of the parties become void ab initio, or invalid from the outset.75 As a result, there is no expropriation because the investment under the concession agreement does not exist from the beginning, and thus no compensation can be claimed.
74
75
ICJ Statute, Art.38(1)(c)
Barcelona Traction, Sep. Op. of Judge Fitzmaurice, para.73; Code Civil, Art.1108; Bürgerliches Gesetzbuch, S.142(1); Thai Civil Code, S.172; Elf v. NOIC, YCA 1986, p.103; Peet v. European Patent Organization, ILOAT Judgment 934, 8 December 1998, para.6
16 a. The agreement is void due to illegal objectives This principle prevents the Court from enforcing a contract if its purpose is to achieve an illegal end.76 In this case, the concession agreement allows mineral extraction which would seriously harm the Reserve designated as a protect area and lead to the extinction of the Rhinoceros, which are crimes against the environment. The acts of Rabbet Morgue and his sons in signing and benefiting from the concession agreement constitute crimes of fraud and corruption. b. The agreement is void due to mistake of facts Alternatively, a contract is void if a party mistook the subject-matter of the contract at the time it was concluded.77 Hwange had mistaken the mineral extraction as an activity that would not pose any serious threat to the environment. If Hwange had known the harm arising from the subject matter of the contract, it would never conclude such an agreement. c. The agreement is void due to duress and undue influence Alternatively, a contract is void if a party took advantage of a position of power over another party who had no other practical choice.78 Hwange was left with no choice but to sign the agreement to maintain the food assistance79 from Cataya otherwise it would face a widespread famine.
76
Code Civil, Art.1131; Bürgerliches Gesetzbuch, S.134,138; Thai Civil Code, S.150; Bovard v. American Horse Enterprises (California Supreme Court), 247 Cal. Rptr. 340 (1988); Royal Bank of Canada v. Newell, 147 D.L.R 268 (N.C.S.A.); Croizé v. Veaux (Cour de Cassation), S.1931.I, p.49; Express Way Agreement (Thai Supreme Court), Deeka-7277/2549; European Contract Principles, Art.1.106(1) 77
Code Civil, Art.1109; Bürgerliches Gesetzbuch, S.118,119; Thai Civil Code, S.156; Bell-Lever Brothers, ALL E.R. Rep.1 (1932); Michigan Supreme Court, Sherwood-Walker, 66 Mich. 568, (1887); European Contract Principles, Art.3.108 78
Code Civil, Art.1111,1113; Bürgerliches Gesetzbuch, S.123; Thai Civil Code, S.164; CIBC Mortgages v. Pitt (1993), 4 All ER 433; Barclays Bank v Boulter, UKHL(1999), p.39; Royal Bank of Scotland v Etridge (No 2), UKHL 2001, p.44; Vout v. Hay(1995), 2 SCR 876; European Contract Principles, Art.1.106(1) 79
CHABIT, preamble
17 4. In any event, Hwange is not liable for the odious debts from the Morgue Regime “Odious debt” is an obligation incurred in the name of a State by an illegitimate government or regime, only to enrich the regime or fund the repression of his or her subjects. International law recognizes a doctrine that the legitimate successor government representing the citizens of the State who did not consent to or benefit from the debt should not be bound to repay such odious debt. This Court should enforce this doctrine as the general principle of equity80 as well as an international custom which can be observed from many examples81 such as Chile repudiating Peruvian debts under the Peace Treaty of Ancon in 1883, the US supporting Cuba to repudiate Spanish debts at the Paris Conference of 1898; Great Britain repudiating Boer Republic’s debts in 1900; the Soviet Repudiating Tsarist debts in 1918; the repudiation of Polish debts by the Treaty of Versailles in 1919. After the Apartheid, South Africa repudiated Namibia’s debt which it considered “incurred without the consent of the Namibian people who played no part in budget expenditure priorities and decisions, the South African Government regards this situation as inequitable and unacceptable.”82 The US is seeking "the restructuring and reduction" of odious debts piled up by the regime of Saddam Hussein.83 Similar attempts are continuing regarding odious debts incurred by the Milosevic regime. These State practices of repudiating odious debt relied on the legal principle of equity, which reflect opinio juris.
80
Supra notes 23-25
81
Khalfan,King&Thomas, Advancing the Odious Debt Doctrine (Ctr. for Int’l Sustainable Dev. Law, Working Paper No.COM/RES/ESJ, 2003), pp.21-29 82
Transnational Corporations in South Africa and Namibia, The Review – International Commission of Jurists, No.36-39 (1986-87), p.34 83
J.Alexander, Downsizing Saddam's Odious Debt, Middle-East Report, March, 2004
18 Numerous leading legal and economic scholars have consistently advocated for this rule for both the legal justice and practical economic development.84 The Court should apply this principle as seen in Tinoco85, in which the War Secretary overthrew Costa Rica government in 1917, and incurred debts owed by the Royal Bank of Canada. The funds were used for the personal enrichment of Tinoco and his brother, and for no public purpose. When Tinoco’s regime fell, a new Constitutional government enacted a bill to invalidate the debts incurred by Tinoco. The matter was settled by an arbitration which found that the bill “…did not constitute an international wrong.” This reaffirmed the equity principle that funds borrowed by a state must be for legitimate governmental use, and not for personal enrichment, otherwise the debts are non-transferable. Alternatively, this Court may enforce general principles of law which are related to the doctrine of odious debt. The Court should apply the principle of unjust enrichment in which a creditor (Cataya) should not be unjustly enriched through payment from the debtor (people of Hwange) who received no correlative benefit for the debt payments that are now being made.86 The Court should also apply the general principle of agency law that imposes mandatory fiduciary duties upon an agent to act for the benefit of the principal.87 The Morgue regime did not act for the benefit of Hwange and the debts cannot bind Hwange.
84
Khalfan,King&Thomas, supra note 81; Chander, Odious Securitization, 53 EMORY-L.J. 923 (2004); Feibelman, Contract, Priority&Odious Debt, 85 N.C.L. Rev. 727,728 (2007); Anna-Gelpern, What Iraq&Argentina Might Learn from Each Other, 6 CHI. J. INT’L L. 391(2005); Kremer&Jayachandran, Odious Debt, 96 AM.Econ. Rev. 82 (2006); Paulus, “Odious Debts” vs. Debt Trap: A Realistic Help?, 31 BROOK. J. INT’L L. 83 (2005); Rajan, Odious or Just Malodorous?, FIN.&DEV., Dec. 2004, p.54; Stiglitz, Odious Rulers, Odious Debts, Atlantic-Monthly(Nov.2003), p.39; Feinerman, Odious Debts:Old&New (Georgetown Univ. Law Ctr. Working Paper, 2004); Patricia Adams, Iraq’s Odious Debts (Cato Inst. Policy Analysis-No.526, 2004) 85 UK-Costa Rica (1923), 1 RIAA 369, p.176
86
Code civil, Art.1378; Bürgerliches Gesetzbuch, Titel-26; Thai Civil Code, S.406; Schroeder v. Buchholz (North Dakota Supreme Court), 2001 ND 36 87
Code civil, Art.1989, Bürgerliches Gesetzbuch, Titel-5; Thai Civil Code, S.823; Ha-Yuan v. NLRC Philippines Supreme Court, G.R.-No.147719, (January 27,2006)
19 Above all, the Court should apply the principle that a right must be exercised in good faith,88 and “he who comes to equity must come with clean hands”.89 In Adler v. Federal Republic of Nigeria,90 this principle has been applied in a sovereign context to deny a recovery to plaintiffs who attempted to corrupt foreign governmental officials. In Express Way Agreement91, the Court denied compensation to private contractors who relied on a corrupted government official to obtain a construction project. In applying any of the above, the Morgue regime used Cataya’s investment to enrich itself and to repress the Hwange citizens. The Jay government which represents the Hwange citizens thus has a legal right not to be bound by the odious debts. Cataya has also been aware of the corruption by the regime and the Court should not enforce the law to serve Cataya’s interests which rest upon the suffering of Hwange’s people.
C.
ALTERNATIVELY, HWANGE IS LIABLE ONLY FOR AN APPROPRIATE COMPENSATION
Cataya agreed that the compensation should take customary norms of international law into account.92 The customary principle of fairness and reasonableness is a critical guiding rule of International law.93 The international community has recognized the legal norm of “appropriate compensation”.94
88
Code civil, Art.1134, Bürgerliches Gesetzbuch, S.242; Thai Civil Code, S.5
89
Henry L. McClintock, Handbook of the Principles of Equity (1948), p.52
90
219 F.3d 869 (9th Cir. 2000)
91
Supra note 76
92
CHABIT, Art.8(1)
93
Supra notes 23-25
94
Supra note 58
20 In Chorzow Factory, PCIJ reaffirmed the principle of “fair compensation”.95 Numerous decisions have consistently applied this principle in expropriation cases by drawing all relevant circumstances to set an equitable, and economically rational, calculation of “appropriate compensation”.96 Full compensation is not applicable because in those cases, the expropriations were either unlawful or involved taking of private properties by the host States, or taking away private party’s investment opportunity to earn future income. This case lacks all these elements. In this case, there is no expropriation of properties, but merely a withdrawal of CoCoCat’s contractual rights. It was neither an arbitrary nor discriminatory decision, but an act of necessity that would be applied to anyone to prevent serious harm to biological diversity in accordance with international law. The intention of CoCoCat is not of commercial nature, but merely an operation to serve Cataya’s interest in finding an energy source. The site is merely prepared initially and the equipments are still new and can be used for other same or similar purposes. Therefore, the appropriate compensation should exclude from calculation any equipment, material or machine which are can be reused, and all the properties which can be returned to CoCoCat. The projected value of the coal reserves should be excluded because CoCoCat has no commercial gain from the extraction. Hwange should only compensate the actual non-redeemable loss and extra costs of withdrawing form the site, such as logistics and technical service.
95
96
Chorzow Factory, p.46; see also Norwegian Ship Claims (1922), RIAA 307, pp.339-41
Qatar-International Marine-Oil, 20 ILR 545(1953); LIAMCO v. Libyan, 20 ILM 1(1981), p.159; Kuwait v. AMINOIL, 66 ILR 602(1982); Benvenuti&Bonfant v. Congo, 21 ILM 758(1982); KHEMCO v. Iran, Award No.310-56-3, 15 IRAN-U.S.C.T.R.(1987), p.256; Philips v. Iran, Award-425-39-2, 21 IRAN-U.S.C.T.R.(1989), p.79
21
CONCLUSION
For the forgoing reasons, the Republic of Hwange requests this Honorable Court to declare that:
(I)
Cataya has an obligation to prevent CoCoCat from coal extraction; should CoCoCat proceed to extract, Cataya, whether acting wilfully or negligently, would violate international law;
(II)
Hwange is not liable for any compensation, or is liable only for a limited appropriate amount.
Respectfully submitted, _________________________ _________________________ Agents for the Republic of Hwange
22
APPENDIX Excerpts of the Cataya-Hwange Agreement on Bilateral Investment and Trade (CHABIT) *** The Government of the Republic of Hwange and the Government of the Democratic Republic of Cataya (each hereinafter referred to as a “Contracting Party”), Desiring to create favorable conditions for greater economic cooperation between them and in particular for investments by nationals and companies of one Contracting Party in the territory of the other Contracting Party based on the principles of equality, nondiscrimination, and mutual benefit, Recognizing that the encouragement and reciprocal protection of such investments will be conducive to stimulating business initiative and increasing economic prosperity in both States, Have agreed as follows: Article 1 Definitions For the purposes of this Agreement: (1) The term “investments” means all kinds of assets that have been invested in accordance with the laws of the Contracting Party receiving them including though not exclusively any: (a) movable and immovable property and other property rights such as mortgage, usufruct, lien, or pledge; (b) title or claim to money or to any contract having a financial value; *** (f) business concessions conferred by law or under contract including any concession to search for, cultivate, extract, or exploit natural resources. *** Article 8 Expropriation (1) Neither Contracting Party shall take any measure of expropriation, nationalization, or other measures having effect equivalent to nationalization or expropriation (all of Expropriation which measures shall hereinafter be referred to as “expropriation”) against the investment of nationals or companies of the other Contracting Party unless the measures are taken for a purpose authorized by law, on a non-discriminatory basis, in accordance with its laws and in return for payment of just compensation, which shall be made without unreasonable delay. Such compensation shall be the value of the investment immediately before the expropriation, taking into account customary norms of international law. ***
12th Annual International Environmental Moot Court Competition Southeast Asian Rounds 14-15 September 2007, at the Ateneo de Manila University, Manila, Philippines.
!" # &
' ! ( )* )
"
"
45 &5
6! "
& -!% '
%)9!
' ! ( )* )
& !< &=> A & !<
'
. ". "$
%
*> " 9 %
&
A
&
9
%
'& !<
:
'!%
& '
+,$ 9
%
#
'
$
%
!A
*%
!
%
> .
&C'
<
:
: +,$
%
*%
-!% "
I
" +,$ &8 FG
"
);
'
%
" 9J & A
&8
($ :(
"
)* )
%
*%
' :
+,$ &8 FG 6 "
D;
D; +,$ "
E !(
FG
6! % "$
'@*% "
&8 @*%-!% '
"
!" &8 ) ;
(Best Memorial)
"
9($
&H
"$ &8 @!<
(
& ' ( (Best Oralist in the Final Round)
, +,.
( >>
-!%
"$
99 ;
!
"
%
'
? >> %
"$ 6! A'
!"
%
'@! '
A ($ +,$ ($ 6
&
&8
"$ %
?
:
".
%
#
'
6 % %
"
'
&=>
A'
#
C
!":, 0
2113
-!%
-!%
"
(Champion Team) +,$ & %
"$ /0 – /1
Ateneo de Manila University +,$ &8
?
( >>
A' 6!
@
(
#
?
. &7 "$ 0
" ) 9 "$ !
?&-
&
'!%
($
:, -!% ' & , ; % #
!"
&B
!%
% (12th Annual International Environmental
Moot Court Competition Southeast Asian Rounds) +,$ -!% ! ,. &
$
*%
#
!
* !
'
#
% -!%
" Ateneo de Manila %-&
%
-!%
!"#
<
!"
':%
A
"
12th Annual International
Environmental Moot Court Competition International Round !6! Stetson University College of Law
( Tempa Bay A Florida &
&8 !" +,$ :( &8
"$
'' ! " "$@ '#
$
! ( !%
A )* ) &
"$ KL/3 9D ( "$ > "$ ! 6
2113 -& +,$ "
