T

C-02

IN THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE, THE HAGUE,
THE NETHERLANDS

THE 20TH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

MOOT COURT COMPETITION, 2015-16

2015 General List No. 162

THE DIFFERENCES CONCERNING THE CULTURAL PROPERTY AND

PROTECTION OF ELEPHANTS

FEDERAL STATES OF ALIYA

(APPLICANT)
V.
REPUBLIC OF RINCOSSI
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

TABLE OF CONTE
Y
TABLE OF CONTENTS........................................................................................................II
TABLE OF AUTHORITIES.................................................................................................IV
QUESTIONS PRESENTED.................................................................................................IX
STATEMENT OF JURISDICTION......................................................................................X
STATEMENT OF FACTS.....................................................................................................XI
SUMMARY OF ARGUMENTS........................................................................................XIII
ARGUMENTS ADVANCED...................................................................................................1
I.

RINCOSSI HAS NOT BREACHED ITS INTERNATIONAL OBLIGATION BY REFUSING TO

ARREST OR PROSECUTE AMBASSADOR CUSI AND THE 20 MEMBERS OF BARNUM
URITOVSKY FOR TRAFFICKING ILLEGAL THORNON ELEPHANT IVORY..............................1
(A)

At the outset, the present claim is inadmissible.......................................................1

1.
By virtue of Clean Hand Doctrine, the present Claim is precluded from
admissibility before the honble court............................................................................1
2.
Principle of Sovereignty precludes the present claim from admissibility before
the honble court............................................................................................................2
(B) Alternatively, Rincossi is not responsible for the conduct of Ambassador Cusi and
the members of Barnum Uritovsky....................................................................................3
1.

The conduct of Ambassador Cusi is not attributable to the Rincossi...................3

2.
The conduct of the 20 members of Barnum Uritovsky is not attributable to the
Rincossi..........................................................................................................................4
i. Members of Barnum Uritovsky did not act as State organ of Rincossi...............5
ii.
No de facto relationship exists between Members of Barnum Uritovsky and
Rincossi......................................................................................................................5
iii. The alleged conduct cannot be attributed to Rincossi due to nonacknowledgement and non-adoption of conduct of Barnum Uritovsky...................7
(C) And, Rincossi has not violated International Law by refusing to arrest and
prosecute Ambassador Cusi and the 20 members of the Barnum Uritovsky.....................8
1.
Rincossis conduct with respect to act of Ambassador Cusi and 20 members of
Barnum Uritovsky does not contravene Conventional International Law.....................8
i. Rincossi has not contravened its obligation under UNCAC and UNTOC..........8
ii.
Rincossis strict national legislation fully complied with Article VIII (a) of
CITES.......................................................................................................................10
iii. Rincossis conduct is consistent with the duty to preserve biodiversity under
CBD.11
2.
Rincossis conduct with respect to act of Ambassador Cusi and 20 members of
Barnum Uritovsky does not contravene CIL................................................................11

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

i. Rincossi enjoys prosecutorial discretion which precludes the obligation of

prosecution...............................................................................................................11
ii.
Rincossi has common but differentiated responsibility towards the
conservation of biodiversity.....................................................................................12
iii. Ambassador enjoys personal immunity in his status as a high ranking official
in the Rincossi government......................................................................................13
II. WHETHER RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY REFUSING TO
RETURN BACK THE IVORY...................................................................................................13
(A) Rincossi is under no obligation to return the ivory under conventional
International Law..............................................................................................................14
1.

CPC is not applicable in this case......................................................................14

i. Ivory is not a cultural property...........................................................................14
ii.

Ivory is not inventoried..................................................................................15

iii.

Ivory has not been stolen from the institutions mentioned under Art.7.........15

2.

Rincossi is acting in accordance with its obligations under CITES...................15

3.

Rincossi has not violated its obligations under UNCAC...................................16

4.
UNTOC endorses domestic law of the states for disposal of confiscated
property........................................................................................................................16
(B)

Destruction of illegal ivory is an international custom..........................................17

1.

There is sufficient state practise.........................................................................17

2.

There is requisite opinio juris.............................................................................18

PRAYER FOR RELIEF.....................................................................................................XIV

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

TABLE OF AUTHORITIES
I.C.J. and P.C.I.J. Judgments
Accordance with International Law of the Unilateral Declaration Of Independence In Respect
Of Kosovo, 2010 I.C.J. 80(Advisory Opinion)....................................................................2
Armed Activities on the territory of the Congo (Democratic Republic of the Congo v.
Uganda), 2005 I.C.J. at 301 (15 Dec.2005)..........................................................................5
Case concerning the Elettronica Sicula Spa (United States of America v. Italy) 1989 I.C.J.
Reports 15 (20 July)...............................................................................................................4
Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran) 1980
I.C.J. 3, 29 (24 May)..............................................................................................................5
Diversion of Waters from the Meuse (Netherlands vs Belgium) 1937 PCIJ (Series A/B, No
70) 16.....................................................................................................................................1
Factory at Charzow , Judgment No.8,1927, PCIJ, Series A, No.9, p.21....................................3
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J Reports
226,253 (8th July)................................................................................................................16
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), Merits,
1986 I.C.J. Reports 14, 191-193.............................................................................2, 5, 6, 17
North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 1969 I.C.J.
Reports 3..............................................................................................................................16
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 ICJ
Reports 1 90 (July 20).......................................................................................................11
Books and Digests
2 YILC (n 52) 85[1999].............................................................................................................1
A.V.W. Thomas & A.J. Thomas, Non-Intervention: The Law and Its Import in the Americas
xi (Dallas 1956)......................................................................................................................2
Aleksandr Shapovalov, 'Should a Requirement of "Clean Hands" Be a Prerequisite to the
Exercise of Diplomatic Protection? Human Rights Implications of the International Law
Commission's Debate' 20 American University International Law Review 829, 842 (2005)1
Alexander B. Murphy, The Sovereign State System as Political-Territorial Ideal: Historical
and Contemporary Considerations, in State Sovereignty as Social Construct 81, 85
(Thomas J. Biersteker & Cynthia Weber, eds., Cambridge 1996).........................................2
Anna Petrig, Negotiated Justice and the Goals of International Criminal Tribunals, 8
CHICAGO-KENT JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 1, 17 (2008).......11

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Antonio Cassese, Comment Ex iniuria ius oritur: Are We Moving towards International
Legitimation of Forcible Humanitarian Countermeasures in the World Community? EUR.
J. INT'L L. 10 (1999).............................................................................................................2
Bodansky & Crook, Introduction and Overview, 96 AJIL 773 (2002)......................................2
Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 11 EUR. J. INT'L L. 10
(1999).....................................................................................................................................2
Chanaka Wickremasinghe, Immunities Enjoyed By Officials Of States And International
Organizations 380, 401 (Malcom D. Evans ed., 3rd ed. 2010)...........................................12
Christopher R. Rossi, Equity and International Law: A Legal Realist Approach to
International Decision making 165 (1993)............................................................................1
Daniel D. Ntanda Nserko, Prosecutorial Discretion before National Courts and International
Tribunals,3 Journal of International Criminal Justice, 124-144, 124 (2005).....................11
Duncan French, Developing States and International Environmental Law: The Importance of
Differentiated Responsibility, 49 Intl & Comp. L.Q. 35 (2000).........................................11
Hathaway & Cusick, Refugee Rights are not Negotiable, 14 GEO. IMMIGR. L.J. 481, 510
(2000)...................................................................................................................................10
James Crawford, Brownlies Principles of Public International Law, 500(8th ed. 2012).......12
James Crawford, Revising the Draft Articles on State Responsibility, 10 Eur.J.Int'l.L. 435
(1999).....................................................................................................................................3
James Crawford, State Responsibility- The General Part, at 137 (Cambridge University Press
2013)......................................................................................................................................3
James Crawford, The International Law Commissions Articles on State Responsibility
Introduction, Text and Commentaries 91 et seq. (2002)................................................4, 5, 6
P. Cullet, Differentiated Treatment in International Environmental Law: Towards a New
Paradigm of Inter State Relations, 10(3) EJIL 549-582 (1999).........................................11
P. Sands, Principles of International Environmental Law (2nd edition, Cambridge University
Press, 2003)..........................................................................................................................11
Paolo Palchetti, Some Remarks on the Scope of Immunity of Foreign State Officials in the
Light of Recent Judgments of Italian Courts, 19 ITALIAN Y.B. INTL L. 83, 85 (2009).......12
Philippa Webb, International Judicial Integration and Fragmentation, 73-75 (2013)...........12
Quincy Wright, 'The Goa Incident' 56 American Journal of International Law 617, 628
(1962).....................................................................................................................................1
Randelzhofer, A. and O. Drr, Article 2(4) in SIMMA, The Charter Of The United Nations: A
Commentary, 200, 223 (3rd ed. 2012).....................................................................................2
Re Bo Xilai, Bow St.Magistrates Court, 8 Nov. 2005, 129 I.L.R 713....................................12

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Rhona K.M. Smith, Textbook on International Human Rights, 181 (6th ed, Oxford University
Press, 5 December 2013).....................................................................................................10
Vaughn Lowe, 'The Role of Equity in International Law' 12 Australian Yearbook of
International Law 54, 80 (1988-89).......................................................................................1
Articles and Commentaries
U.N. Intl Law Commntry, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, Commentaries, Report of the International Law Commission to the General
Assembly, 56 U.N. GAOR, 53d Sess., Supp. No. 10, at 31, 80, U.N. Doc. A/56/20 (2001)2,
3, 4, 7
Treatises and Conventions
Convention on Biological Diversity, June 6 1992, 1760 U.N.T.S. 79.................................8, 10
Convention on International Trade in Endangered Species of Fauna and Flora, Mar.3 1973,
993 U.N.T.S. 243....................................................................................................8, 9, 10, 14
Convention on Migratory Species, June 23, 1979, 1651 UNTS 333.........................................8
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, Nov.14, 1970, 96 Stat.2329, 823 U.N.T.S.231
........................................................................................................................................13, 14
Statute of the International Court of Justice, Art.38 (1) (b), 33 U.N.T.S.993 (1945)..............16
UN General Assembly, United Nations Convention against Corruption, Oct.31 2003,
A/58/422.......................................................................................................................8, 9, 15
United Nation Convention on Law of the Sea,1833 UNTS. 397 (Dec. 10, 1982)...................11
United Nations Charter, as amended June 26,1945,892 U.N.T.S.119 (1945)............................2
United Nations Convention against Transnational Organized Crime, Nov.15, 2000, UN Doc.
A/55/383 at 25..............................................................................................................8, 9, 15
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 Art. 268, 13, 15
Other Judgments
Case concerning the differences between New Zealand and France concerning the
interpretation or application of two agreements, concluded on 9 July 1986 between the two
states and which related to the problems arising from the Rainbow Warrior Affair, 20
R.I.A.A. 419,30 April 1990....................................................................................................3
E.g. Schwering Corporation v. Iran, 5 Iran-U.S.C.T.R. 361 (1984)...........................................5
Estate of Jean-Baptiste Caire (France v. United Mexican States), 5 R.I.A.A. 516, at 531, 7
June 1929...............................................................................................................................3
Francisco Malln (United Mexican States) v. U.S.A., Reports Of International Arbitral
Awards, Volume IV, 173-190, at pg. 177(1927).....................................................................3

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Hyatt International Corporation v. Iran, 9 Iran-U.S.C.T.R. 72, 88-94 (1985)............................5

Kenneth P. Yeager v. Islamic Republic of Iran, 17 IranU.S. C.T.R 92, 111(1987)..................3
Otis Elevator Co. V. Iran, 14 Iran-U.S.C.T.R. 283 (1987).........................................................5
Prosecutor v. Duko Tadi, Case IT-94-1, 38 I.L.M. 1518, at 145, 160 (I.C.T.Y. Appeals
Chamber, Concurring Opinion Judge Shahabuddeen 15 July 1999)................................6, 7
United Nations and Other Documents
Declaration on the Inadmissibility of Intrusion and Interference in the Internal Affairs of
States, Annex to G.A. Res. 36/103, U.N. GAOR, 36th Sess., U.N. Doc. A/RES/36/103
(1981).....................................................................................................................................2
Definition of Aggression, A/RES/3314 (XXIX), Dec. 14, 1974, Annex, art. 1.........................2
G.A. Res. 2131/XX, U.N. GAOR, 20th Sess., Supp. No. 14, at 11 U.N. Doc.
A/RES/2131(XX), Dec. 21, 1965..........................................................................................2
Principles of International Law Concerning Friendly Relations and Co-operation among
States in Accordance with the Charter of the United Nations, A/RES/2625 (XXV), Oct. 24,
1970........................................................................................................................................2
Report of the Ad Hoc Committee for the Negotiation of a Convention against Corruption on
the work of its first to seventh sessions, 7 October 2003, UN Doc. A/58/422/Add.1...........9
Report of the International Law Commission, 57th Session , 110, U.N. Doc.A/60/10 (2005)
(Special Rapporteur on diplomatic protection John Dugard)................................................1
Report of the International Law Commission, 65th Sess., 52, U.N.Doc. A/68/10 (2013).......12
Statement of the Algerian Representative 69 U.N.Doc. A/C.6/67/SR.22.............................12
Statement of the Chilean Representative, 20 U.N. Doc. A/C.6/67/SR.20..............................12
Statement of the Peruvian Representative, 19, U.N.Doc. A /C.6/67/SR.21...........................12
Statements of the Swiss and Portuguese Representatives, 40 and 82, U.N.Doc.
A/C.6/67/SR.21....................................................................................................................12
UNCAC, Traveux Preparatoires, Art.57 Interpretative notes at 516 (United Nations
Publication 2010).................................................................................................................15
Other Sources
CPC, Art.1; UNESCO .Org, (2015), Operative Guidelines for the Implementation of CPC,
Paris
1970,
http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/OPERATIONAL_GU
IDELINES_EN_FI AL.pdf (last visited Nov 12 2015)........................................................13
Cyrille de Klemm, Guidelines for Legislation to Implement CITES, IUCN Environmental
Policy and Law Paper No. 26 (1993).....................................................................................9

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Faith Karimi, C. (2015). U.S. destroys tons of ivory; puts $1 million bounty on traffickers CNN.com. CNN, http://edition.cnn.com/2013/11/14/us/wildlife-trafficking-bounty/ (last
visited Nov 12 2015)............................................................................................................16
Legislative Guide for the Implementation of UNCAC, United Nations Office on Drugs and
Crime,
at
391,
https://www.unodc.org/documents/treaties/UNCAC/Publications/LegislativeGuide/UNCA
C_Legislative_Guide_E.pdf...................................................................................................9
Reuters, (2015). For the first time, China crushes 6 metric tonnes of ivory in
public,http://www.reuters.com/article/2014/01/06/us-china-ivoryidUSBREA050D820140106 (last visited Nov 10 2015).....................................................16
Reuters, (2015). Thailand wins guarded praise for destroying ivory stockpile,
http://www.reuters.com/article/2015/08/26/us-thailand-ivory-idUSKCN0QV0S620150826
(last visited Nov 10 2015)....................................................................................................16
Universal Jurisdiction: The State of the Art, Human Rights Watch Vol. 18, NO. 5(D) 28
(June, 2006)..........................................................................................................................11
UNTOC, supra note 40, Art. 14(2); Legislative Guides for the Implementation of UNTOC,
Unodc.org (2015), at 152, https://www.unodc.org/pdf/crime/legislative_guides/Legislative
%20guides_Full%20version.pdf (last visited Nov 13 2015)...............................................15
World Wildlife Fund, 2015. 'Crush And Burn: Destroying Illegal Ivory
http://www.worldwildlife.org/stories/crush-and-burn-destroying-illegal-ivory (last visited
Nov 15 2015).......................................................................................................................16
Declarations and Conferences
Declaration of London Conference on the Illegal Wildlife Trade, (London, February 2014)
para 15(2).............................................................................................................................17
Montreal Protocol on substances that deplete the ozone layer, 30 ILM 537,541 (1991).........11
Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (Vol. I)
(1993) 31 I.L.M 849.............................................................................................................11
Stockholm Declaration, The United Nations Conference on the Human Environment,
Stockholm, UN Doc.A/CONF.48/14/Rev.1 (1972)..............................................................11

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

QUESTIONS PRESENTED
I.
WHETHER RINCOSSI HAS BREACHED AND CONTINUES TO BREACH ITS
INTERNATIONAL OBLIGATIONS BY FAILING TO ARREST OR PROSECUTE
AMBASSADOR CUSI AND THE 20 MEMBERS OF THE BARNUM URITOVSKY FOR
TRAFFICKING ILLEGAL THORNON ELEPHANT IVORY.
II.
WHETHER RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY REFUSING TO
RETURN THE CONFISCATED THORNON ELEPHANT IVORY TO ALIYA.

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

STATEMENT OF JURISDICTION
The Federal States of Aliya and the Republic of Rincossi have agreed to submit their
differences concerning Questions relating to Cultural Property and Protection of Elephants to
the International Court of Justice pursuant to paragraph 1 of Article 40 of the Statute of the
International Court of Justice by a joint notification to the Court of their Special Agreement
signed at Libreville, Gabon on 19th June, 2015. The Registrar addressed notification to the
parties on June 25, 2015.

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

STATEMENT OF FACTS
The Federal States of Aliya (hereinafter Aliya) and the Republic of Rincossi (hereinafter
Rincossi) are located on the western coast of the continent of Thorno and the eastern coast of
continent of Rabab respectively (R.5, 1). Aliya is a developing country with a population of
approximately 10,000,000 and 40% of the population lives on less than $1.25 per day (R.5,
3) Rincossi is a rapidly developing country with a population of approximately 600,000,000
people. The GDP of Rincossi is around $4.7 trillion (USD) (R.5, 4).
In 1990, the Aliyan government enacted legislation declaring, that Thornon elephants and
their parts and derivatives are of historical and scientific importance to them (R.6, 15). In
1977, Aliyan Wildlife Protection Act (Wildlife Act) came into force in Aliya, which
criminalizes CITES violations with the punishment of imprisonment for maximum ten years
and a fine. The Wildlife Act also provides for the confiscation of illegally traded wildlife
specimens and provides that such confiscated specimens shall be returned to the country of
origin, if practicable (R.7, 17). Under the Aliyan Ivory Trade Prohibition Act, enacted in
1980, all ivory trade-both International and domestic-is illegal in Aliya. The Aliyan
Government prosecutes many cases involving ivory trafficking but due to Aliyas limited
financial resources, some cases have not been prosecuted (R.7, 19).
In 1977, the Rincossi government enacted Rincossi Flora and Fauna Trafficking Act
(Trafficking Act), under which the International trade in violation of CITES is prohibited
along with the confiscation of illegally traded specimens. However, Rincossi law does not
prohibit domestic trade of illegal ivory, which includes ivory that was obtained before 1977
and ivory that was legally obtained (R.7, 18). In 2010, the Rincossi government amended
its Trafficking Act by increasing the maximum penalty for a CITES violation to eight years in
prison along with the policy to destroy confiscated ivory if practicable (R.7, 21). Since the

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

2010 amendments, the Rincossi government has prosecuted only two cases involving illegal
ivory trade under the Trafficking Act (R.7, 22). The large number of Rincossi workers
brought by the companies owned by the Rincossi government in Aliya helped to stimulate the
market for illegal ivory in both Aliya and Rincossi, and Rincossi has become the primary
destination for illegal ivory from Aliya (R.7, 20).
In July 2014, Rincossi officials discovered that an ambassador from Rincossi named Pam C.
Cusi, who travelled Thorno on a diplomatic mission, had transported 25 kg of illegal ivory
from Aliya back into Rincossi, which was later confiscated (R.8, 23). In December 2014,
Rincossi officials also confiscated all of the illegal elephant ivory (approximated 1500 kg)
from the private group made up of Rincossi citizens called as Barnum Uritovsky (R.8, 26).
However, neither Cusi nor 20 members of Barnum Uritovsky were arrested or prosecuted but
a written warning was issued to them by the government of Rincossi (R.9, 28).
Aliya expressed concern over Rincossis failure to prosecute ambassador Cusi and members
of Barnum Uritovsky and extended its assistance for expeditious proceeding (R.9, 27).
Rincossi declined, stating that it is a purely domestic matter and well within their discretion
to decide not to prosecute Ambassador Cusi, especially given her diplomatic status and very
limited involvement in the operation (R.11, 30).
Aliya formally requested the Rincossi to return all of the confiscated ivory to Aliya in
accordance with Cultural Property Convention (R.12, 31). Rincossi refused to return by
disputing that whether ivory even qualifies as cultural property that would be protected
under the CPC (R.12, 32).
Failing to resolve the matter through negotiations, Aliya and Rincossi submitted the matter to
the International Court of Justice for adjudication (R.13, 35).

WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

SUMMARY OF ARGUMENTS

ISSUE 1
The claim is inadmissible before the court by the virtue of doctrine of clean hands as Aliya
has failed to perform its reciprocal obligations of prosecuting cases of illegal trafficking in its
territory. Also, principle of non-intervention precludes the Aliya to interfere in the domestic
affairs of Rincossi.
Alternatively, the alleged conduct of Ambassador Cusi is purely private of Ambassador Cusi
and the 20 members of Barnum Uritovsky which cannot be attributable to Rincossi. The
conduct of Rincossi with respect to act of Ambassador Cusi and the 20 members of Barnum
Uritovsky is consistent with its treaty obligation as well as customary International Law
obligation, especially considering the equity principle of prosecutorial discretion and
common but differential responsibility.

ISSUE 2
Rincossi has not violated International Law by refusing to return back the ivory. Rincossi is
acting according to its obligations under CPC, CITES, UNCAC and UNTOC and none of
them mandate Rincossi to return the ivory. Further, destruction of illegal ivory being a
customary practise, the act of Rincossi is endorsed by Customary International Law.

1
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

ARGUMENTS ADVANCED
I.RINCOSSI

HAS NOT BREACHED ITS INTERNATIONAL OBLIGATION BY REFUSING TO

ARREST OR PROSECUTE AMBASSADOR CUSI AND THE 20 MEMBERS OF BARNUM
URITOVSKY FOR TRAFFICKING ILLEGAL THORNON ELEPHANT IVORY

(A)
1.

At the outset, the present claim is inadmissible

By virtue of Clean Hand Doctrine, the present Claim is precluded from admissibility
before the honble court

The significance of Clean Hand doctrine in International Law cannot be ignored. 1 Clean Hand

Doctrine precludes the party from invoking another partys responsibility when the former
has in fact been guilty of violating a reciprocal obligation.2 The application of the clean hands
doctrine can be witnessed in the Diversion of Water from the Meuse case before the
Permanent Court of International Justice. In that case, the Netherlands argued that the
Belgium construction of a canal, which involved using the Meuse as a feeder, was in
violation of the treaty between them.3 The court ruled that Belgium is at no fault and stated
that it finds it difficult to admit that the Netherlands are now warranted in complaining of the
1 Report of the International Law Commission, 57th Session , 110, U.N. Doc.A/60/10 (2005)
(Special Rapporteur on diplomatic protection John Dugard);see 2 YILC (n 52) 85[1999];
Vaughn Lowe, 'The Role of Equity in International Law'

12 Australian Yearbook of

International Law 54, 80 (1988-89); Christopher R. Rossi, Equity and International Law: A
Legal Realist Approach to International Decision making 165 (1993); Aleksandr Shapovalov,
'Should a Requirement of "Clean Hands" Be a Prerequisite to the Exercise of Diplomatic
Protection? Human Rights Implications of the International Law Commission's Debate' 20
American University International Law Review 829, 842 (2005).
2 Quincy Wright, 'The Goa Incident' 56 American Journal of International Law 617, 628
(1962).

2
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

construction of which they themselves set an example in the past. 4 Therefore, it is humbly

submitted that Government of Aliya has not prosecuted some ivory trafficking cases 5 and is in
no position to criticize the Government of Rincossis decision.
2.

Principle of Sovereignty precludes the present claim from admissibility before the
honble court

The principle of state sovereignty and sovereign equality inherently requires that a State
refrain from interference in the internal or external affairs of another State. 6 The obligation of
non-intervention has seen recognition in General Assembly resolutions 7, judicial decisions8

3 Diversion of Waters from the Meuse (Netherlands vs Belgium) 1937 PCIJ (Series A/B, No
70) 16.
4 Id. 25.
5 R.7, 19.
6 United Nations Charter, as amended June 26,1945,892 U.N.T.S.119 (1945); Randelzhofer,
A. and O. Drr, Article 2(4) in SIMMA, The Charter Of The United Nations: A Commentary,
200, 223 (3rd ed. 2012).
7 G.A. Res. 2131/XX, U.N. GAOR, 20th Sess., Supp. No. 14, at 11 U.N. Doc.
A/RES/2131(XX), Dec. 21, 1965; Principles of International Law Concerning Friendly
Relations and Co-operation among States in Accordance with the Charter of the United
Nations, A/RES/2625 (XXV), Oct. 24, 1970; Definition of Aggression, A/RES/3314 (XXIX),
Dec. 14, 1974, Annex, art. 1; Declaration on the Inadmissibility of Intrusion and Interference
in the Internal Affairs of States, Annex to G.A. Res. 36/103, U.N. GAOR, 36th Sess., U.N.
Doc. A/RES/36/103 (1981).

3
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and the juristic works.9The significant majority of legal scholars attribute non-intervention
norms as jus cogens character which barred the present claim of Aliya.10 Therefore, Rincossi
seeks to submit that Aliya is violating the principle of state sovereignty by constraining the
Rincossi to prosecuting its citizens.

(B)

Alternatively, Rincossi is not responsible for the conduct of Ambassador Cusi

and the members of Barnum Uritovsky

It has been universally acknowledged that every Internationally wrongful act of a State
entails its International Responsibility.11 The responsibility arises from conduct, an action or
8 Accordance with International Law of the Unilateral Declaration Of Independence In
Respect Of Kosovo, 2010 I.C.J. 80(Advisory Opinion); Military and Paramilitary Activities
in and against Nicaragua (Nicaragua v. USA), Merits, 1986 I.C.J. Reports 14, 191-193
[Hereinafter Nicaragua].
9 A.V.W. Thomas & A.J. Thomas, Non-Intervention: The Law and Its Import in the Americas
xi (Dallas 1956); Alexander B. Murphy, The Sovereign State System as Political-Territorial
Ideal: Historical and Contemporary Considerations, in State Sovereignty as Social Construct
81, 85 (Thomas J. Biersteker & Cynthia Weber, eds., Cambridge 1996).
10 Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 11 EUR. J. INT'L L.
10 (1999); Antonio Cassese, Comment Ex iniuria ius oritur: Are We Moving towards
International Legitimation of Forcible Humanitarian Countermeasures in the World
Community? EUR. J. INT'L L. 10 (1999).
11U.N. Intl Law Commntry, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, Commentaries, Report of the International Law Commission to the General

4
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

an omission that is (1) attributable to that state under International Law and (2) constitutes a
breach of an International obligation of the state. 12 If any of these requirements is not duly
satisfied, there is no Internationally wrongful act and the state cannot be held legally
responsible for the action in question.
1

The conduct of Ambassador Cusi is not attributable to the Rincossi

A state is not responsible for every act done by an individual in its service, but only when the
individual purports to act on behalf of the state and where an individual does something in his
or her capacity as a PRIVATE Citizen, state responsibility will not arise. 13 In Yeager v. Iran
case, the Iran-US Claims tribunals held that the acts which an organ commits in a purely
private capacity, even if it has used the means placed at its disposal by the state for the
exercise of its function, are not attributable to the state. 14 The award of the Mexico-United
Assembly, 56 U.N. GAOR, 53d Sess., Supp. No. 10, at 31, 80, U.N. Doc. A/56/20 (2001)
Art.1 [Hereinafter ARSIWA Commentaries]; Bodansky & Crook, Introduction and Overview,
96 AJIL 773 (2002); James Crawford, Revising the Draft Articles on State Responsibility, 10
Eur.J.Int'l.L. 435 (1999); Factory at Charzow , Judgment No.8,1927, PCIJ, Series A, No.9,
p.21; Case concerning the differences between New Zealand and France concerning the
interpretation or application of two agreements, concluded on 9 July 1986 between the two
states and which related to the problems arising from the Rainbow Warrior Affair, 20
R.I.A.A. 419,30 April 1990 (Hereinafter cited as The Rainbow Warrior II Case).
12 ARSIWA Commentaries, supra note 11, at 34.
13 James Crawford, State Responsibility- The General Part, at 137 (Cambridge University
Press 2013).
14 Kenneth P. Yeager v. Islamic Republic of Iran, 17 IranU.S. C.T.R 92, 111(1987).

5
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

States General Claims Commission in the Malln case involved, first, the act of an official
acting in a private capacity and, secondly, another act committed by the same official in his
official capacity, although in an abusive way.15 The latter action was, and the former was not,
held attributable to the State. The French-Mexican Claims Commission in the Caire case
excluded responsibility in cases where the act had no connection with the official function
and was merely the act of a private individual.16 The distinction between official and
private conduct is reflected in the expression if the organ, person or entity acts in that
capacity in Article 7.17 This indicates that the conduct referred to comprises only the actions
and omissions of organs purportedly or apparently carrying out their official functions, and
not the private actions or omissions of individuals who happen to be organs or agents of the
State.18
Therefore, the Rincossi seeks to submit that act of Ambassador Cusi has acted purely in his
private capacity as he planned to sell ivory back in Rincossi 19, which cannot be attributable to
State.

15 Francisco Malln (United Mexican States) v. U.S.A., Reports Of International Arbitral

Awards, Volume IV, 173-190, at pg. 177(1927).
16 Estate of Jean-Baptiste Caire (France v. United Mexican States), 5 R.I.A.A. 516, at 531, 7
June 1929, (Hereinafter cited as the Caire case).
17 ARSIWA Commentaries, supra note11, at 45.
18 Id., at pg.46.
19 R. 8 24.

6
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

3.

The conduct of the 20 members of Barnum Uritovsky is not attributable to the

Rincossi

As the ICJ rightly stated in Elettronica Sicula, an allegation of State responsibility should not
be made lightly.20 Hence, the criteria for invoking State responsibility must clearly be
satisfied before raising an allegation. In present case (1) Members of Barnum Uritovsky acted
as a private legal entity and not as a State organ of Rincossi, (2) No de facto relationship
exists between Barnum Uritovsky and Rincossi which entails State responsibility under
International Law, and (3) Rincossi neither adopted nor acknowledged the act of members of
Barnum Uritovsky.
i.

Members of Barnum Uritovsky did not act as State organ of Rincossi.

The status of an organ must be determined by the States internal law.21 Barnum Uritovsky
does not have any position under Rincossis domestic law, so it did not act as an organ of
Rincossi.
ii.

No de facto relationship exists between Members of Barnum Uritovsky and Rincossi.

Bearing in mind the general principle of International Law that the conduct of private persons
or entities is not attributable to the State.22 As held by the ICJ in Nicaragua, only the actions
20 Case concerning the Elettronica Sicula Spa (United States of America v. Italy) 1989 I.C.J.
Reports 15 (20 July).
21 ARSIWA Commentaries, supra note 11, at 42; James Crawford, The International Law
Commissions Articles on State Responsibility Introduction, Text and Commentaries 91 et seq.
(2002).[Hereinafter Crawford]
22 Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran)
1980 I.C.J. 3, 29 (24 May); CRAWFORD, supra note 21, at Art.8 1.

7
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

of private persons or entities acting as de facto organs or agents under the instruction,
direction or effective control of a State can be imputed under Customary International Law 23
and the same is reiterated in the ILC Draft. 24 Members of Barnum Uritovsky have not acted
(a) as a de facto organ of Rincossi, (b) on instructions given by Rincossi, or (c) under its
direction or control.
a. Barnum Uritovsky did not act as a de facto organ of Rincossi exercising elements of
governmental authority.
A State initially establishes a corporate entity, whether by special law or otherwise, is not a
sufficient basis for attribution to the State of any subsequent conduct of that entity.25
According to ILC Article 5, solely the conduct of entities which are empowered by the law of
the State to exercise elements of governmental authority shall be considered an act of State. 26
The internal law in question must specifically authorize the conduct as involving the exercise
of public authority.27 It is not sufficient that internal law permits activities as part of the
general regulation of the affairs of the community.28 No Rincossis law authorized members

23 Nicaragua, supra note 8 at 62, 109, 115; Armed Activities on the territory of the Congo
(Democratic Republic of the Congo v. Uganda), 2005 I.C.J. at 301 (15 Dec.2005).
24 Crawford, supra note 21, at Art.8 4.
25 E.g. Schwering Corporation v. Iran, 5 Iran-U.S.C.T.R. 361 (1984); Otis Elevator Co. V.
Iran, 14 Iran-U.S.C.T.R. 283 (1987); Crawford, supra note 21, at Art.8 7.
26 Crawford, id.
27 Hyatt International Corporation v. Iran, 9 Iran-U.S.C.T.R. 72, 88-94 (1985); Crawford, id.
28 Crawford, id.

8
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

of Barnum Uritovsky to engage in any specific conduct, in particular the exercise of any
governmental authority. Therefore they did not act as a de facto organ of Rincossi.
b. The alleged International Law violations by members of Barnum Uritovsky were not
committed according to specific instructions by Rincossi.
When giving lawful instructions to persons or entities which are not state organs, State does
not assume the risk that the instructions will be carried out in an internationally wrongful
manner.29 Human rights violations committed by the Nicaraguan Contras were not imputable
to the US because they were not carried out under specific instructions of the US.30 In the
present case, Rincossi did not issue specific instructions to Barnum Uritovsky to commit the
alleged actions.
c. Members of Barnum Uritovsky did not act under the direction or control of Rincossi.
Rincossi did not exercise effective control over the actions of members of Barnum Uritovsky
as well as overall control which would be sufficient to entail responsibility. Rincossi did not
exercise this level of control over Barnum Uritovsky. This Court previously examined the
degree of control necessary for attribution of private actions to a State in Nicaragua, where it
established that responsibility is based on effective controlactual participation and direction
by a State.31 A general situation of dependence and support was deemed inadequate for
attribution of the conduct to the State.32

29 Crawford, supra note 21, at Art.8 8.

30 Nicaragua, supra note 8, 109, 115.
31 Nicaragua, supra note 8, 62, 64-65, 86, 109, 115.
32 Nicaragua, supra note 8, 109-115; Crawford, supra note 21, at Art.8 4.

9
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Also, as held in Tadic, overall control is established when the State not only finances and
equips forces, but also plans, participates in and supervises military activities. 33 As held in
Jorgic and cited in Tadic,34 State organs or officials must actively participate in the conduct
beyond financing and providing technical equipment in order to establish overall control,
specifically using the term Verpflechtung.35 Rincossi did not give any directions or
financial support to Barnum Uritovsky. Therefore, Rincossi exercises neither effective control
nor overall control over Barnum Uritovsky.
iii.

The alleged conduct cannot be attributed to Rincossi due to non-acknowledgement

and non-adoption of conduct of Barnum Uritovsky.

Recalling that purely private conduct cannot as such be attributed to a State. But it is
recognized nevertheless that conduct is to be considered as an act of a State if and to the
extent that the State acknowledges and adopts the conduct in question as its own. 36 In the
present case, Rincossi neither acknowledged nor adopted the act of members of Barnum
Uritovsky, therefore the alleged act is not attributable to Rincossi.

33 Prosecutor v. Duko Tadi, Case IT-94-1, 38 I.L.M. 1518, at 145, 160 (I.C.T.Y. Appeals
Chamber, Concurring Opinion Judge Shahabuddeen 15 July 1999) (Hereinafter cited as the
Tadi case); Crawford, supra note 21, at Art.8 5.
34 Tadic Case, id.at 130.
35 Id.
36 ARSIWA Commentaries, supra note 11, at pg. 42.

10
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

(C)

And, Rincossi has not violated International Law by refusing to arrest and
prosecute Ambassador Cusi and the 20 members of the Barnum Uritovsky.

Rincossis conduct with respect to act of Ambassador Cusi and 20 members of

Barnum Uritovsky does not contravene Conventional International Law.

States must comply with its treaty obligations in good faith, pursuant to the principle of
Pacta sunt servanda.37 Aliya and Rincossi are required as States-parties to CITES38,
UNCAC39, UNTOC40, CBD41 and CMS42 to prevent illegal trade and promote the conservation
of natural resources.43 Rincossi has complied with its duty to arrest and prosecute
Ambassador Cusi and the 20 members of Barnum Uritovsky consistent with its treaty
obligations.

37 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 Art. 26
[VCLT].
38 Convention on International Trade in Endangered Species of Fauna and Flora, Mar.3 1973,
993 U.N.T.S. 243 [CITES].
39 UN General Assembly, United Nations Convention against Corruption, Oct.31 2003,
A/58/422 [UNCAC].
40 United Nations Convention against Transnational Organized Crime, Nov.15, 2000, UN
Doc. A/55/383 at 25 [UNTOC].
41 Convention on Biological Diversity, June 6 1992, 1760 U.N.T.S. 79 [CBD].
42 Convention on Migratory Species, June 23, 1979, 1651 UNTS 333 [CMS].
43 R.5-6, 7-12.

11
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Rincossi has not contravened its obligation under UNCAC and UNTOC.

Keeping in mind, recourse may be had to supplementary means of interpretation, including

the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm
the meaning resulting from the application of general rule of interpretation 44. Interpretation of
UNCAC and UNTOC, favorably justifies the conduct of Rincossi.
a

UNCAC and UNTOC embodies the principle of non-intervention in the domestic

affairs of other state.

Article 4 of UNCAC and Article 4 of UNTOC mandates the contracting parties to respect the
principles of sovereign equality, territorial integrity of states and non-intervention in the
domestic affairs of other states.45 Principles of non-intervention is to be understood in the
light of Article 2 of Charter of United Nations.46 UNCAC and UNTOC recognizes
prosecution and punishment for offences as the matter of domestic affairs of state. 47 Also,
Article 30(3) of UNCAC and Article 11(2) of UNTOC has been categorically provided as
non-mandatory requirements which refers to discretionary prosecution powers of the state.48
44 VCLT, supra note 37, Article 32.
45 UNCAC, supra note 39, Article 4 and UNTOC, supra note 40, Article 4.
46Report of the Ad Hoc Committee for the Negotiation of a Convention against Corruption
on the work of its first to seventh sessions, 7 October 2003, UN Doc. A/58/422/Add.1.
47 UNCAC, supra note 39 Article 30(9) and UNTOC, supra note 40, Article 10(6).
48 Legislative Guide for the Implementation of UNCAC, United Nations Office on Drugs
and

Crime,

at

391,

https://www.unodc.org/documents/treaties/UNCAC/Publications/LegislativeGuide/UNCAC_
Legislative_Guide_E.pdf ;UNTOC, supra note 40,Article 11(2).

12
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Hence, matters pertaining to arrest and prosecution of Ambassador Cusi and 20 members of
Barnum Uritovsky are domestic affairs of Rincossi, therefore Aliya cannot interfere.
d. UNCAC and UNTOC envisaged the policy of sentence mitigation and immunity
Noting with appreciation, Article 26(2) as well as Article 26(3) of UNCAC and Article 37(2)
as well as Article 37(3) of UNTOC encourages states parties to consider mitigating sentences
and granting immunity and/or leniency to individuals who decide to cooperate with the
authorities.49 This is optional and dependent on domestic legal principles and traditions. Thus,
conduct of Rincossi is justified towards the act of Ambassador Cusi and 20 members of
Barnum Uritovsky.
iv.

Rincossis strict national legislation fully complied with Article VIII (a) of CITES

Recognizing the non-self-executing provisions of CITES50 appear in Articles II(4) and VIII(1)
in which Article II(4) requires that Parties do not allow trade in specimens of species included
in its Appendices, except in accordance with the provisions of the Convention. 51 As a result,
Parties are under the obligation to take measures prohibiting trade in CITES specimens,
whenever the conditions laid down by the Convention have not been complied with. This
general rule is supplemented by Article VIII., which requires that Parties take appropriate

49 UNCAC, supra note 39, Article 26(2) & 26(3) and UNTOC, supra note 40, Article 37(2)
and 37(3).
50 Cyrille de Klemm, Guidelines for Legislation to Implement CITES, IUCN Environmental
Policy and Law Paper No. 26 (1993).
51 CITES, supra note 38, Article II (4).

13
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

measures to enforce the provisions of the Convention and to prohibit trade in specimens in
violation thereof.52
Rincossi Flora and Fauna Trafficking Act prohibits International trade in violation of CITES
and provides a penalty for CITES violation to eight years in prison along with the
confiscation of illegally traded specimens53, which complies Rincossi with its obligation
contemplated under CITES.
v.

Rincossis conduct is consistent with the duty to preserve biodiversity under CBD.

Article 8 of the CBD requires Rincossi to comply with its provisions as far as possible and
as appropriate54. It is universally acknowledged that phrases such as as far as possible, in
accordance with national law and as necessary indicate the degree of flexibility and
discretion of the state concerned.55 By reporting to Aliya, the conduct of Ambassador Cusi,
with respect to illegal trade of ivory56 and conducting joint investigation along with
confiscation of illegally imported ivory57, Rincossi has appropriately complied with its duty
to protect biodiversity envisaged under CBD.
52 Id., Article VIII(1).
53 R.7 18.
54 CBD, supra note 41, Article VIII.
55 Rhona K.M. Smith, Textbook on International Human Rights, 181 (6th ed, Oxford
University Press, 5 December 2013); Hathaway & Cusick, Refugee Rights are not
Negotiable, 14 GEO. IMMIGR. L.J. 481, 510 (2000).
56 R.8 23.
57 R.8 26.

14
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

4.

Rincossis conduct with respect to act of Ambassador Cusi and 20 members of

Barnum Uritovsky does not contravene CIL.

Rincossi enjoys prosecutorial discretion which precludes the obligation of

prosecution.

The duty to prosecute does not extinguish prosecutorial discretion entirely.58 Accordingly,
the competent authorities involved remain responsible for deciding whether or not to initiate
prosecution, in the light of the evidence before them and the relevant rules of criminal
procedure.59 It is submitted that this discretion often leads to impunity 60 thereby negating the
notion that states somehow see themselves under an absolute legal obligation to prosecute.
vi.

Rincossi has common but differentiated responsibility towards the conservation of

biodiversity.

Common but differentiated responsibility, is the well-recognized principle of International

Law61 which hold parties to an International treaty variedly responsible based on their various
58 Anna Petrig, Negotiated Justice and the Goals of International Criminal Tribunals, 8
CHICAGO-KENT JOURNAL

OF INTERNATIONAL AND

COMPARATIVE LAW 1, 17 (2008); Daniel

D. Ntanda Nserko, Prosecutorial Discretion before National Courts and International

Tribunals,3 Journal of International Criminal Justice, 124-144, 124 (2005).
59 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012
ICJ Reports 1 90 (July 20).
60Universal Jurisdiction: The State of the Art, Human Rights Watch Vol. 18, NO. 5(D) 28
(June, 2006).
61 Stockholm Declaration, The United Nations Conference on the Human Environment,
Stockholm, UN Doc.A/CONF.48/14/Rev.1 (1972), Principle 12; Rio Declaration on

15
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

contributions to an environmental problem and their respective capacities in rectifying such

problem.62 Article 20(4) of the CBD lays down that the economic and social development and
eradication of poverty are the first and overriding priorities of all developing country parties.
Taking into consideration, the existence of other pressing national issues on which Rincossi
by virtue of being developing nation63 must spend the vast amount of resources and time that
would be required to prosecute approximately 20 members of the Barnum Uritovsky, it is
rational to not make any arrest or pursue prosecution of Ambassador Cusi and 20 members of
Barnum Uritovsky.
vii.

Ambassador enjoys personal immunity in his status as a high ranking official in the
Rincossi government.

The ratio legis of the rule of personal immunity is the conferment of the procedural bar from
the exercise of jurisdiction on those state officials that have a significant functional and

Environment and Development, U.N. Doc. A/CONF.151/26 (Vol. I) (1993) 31 I.L.M 849,
Principles 6 and 7; UN Framework Convention on Climate Change, New York, 29 May 1992,
FCCC/INFORMAL/84 GE.05-62220 (E) 200705 ;Montreal Protocol on substances that
deplete the ozone layer, 30 ILM 537,541 (1991); Duncan French, Developing States and
International Environmental Law: The Importance of Differentiated Responsibility, 49 Intl
& Comp. L.Q. 35 (2000); United Nation Convention on Law of the Sea,1833 UNTS. 397
(Dec. 10, 1982).
62 P. Cullet, Differentiated Treatment in International Environmental Law: Towards a New
Paradigm of Inter State Relations, 10(3) EJIL 549-582 (1999); P. Sands, Principles of
International Environmental Law (2nd edition, Cambridge University Press, 2003).
63R.5, 4.

16
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

representative character in a state.64 Given the diverse nature of political systems in the world,
personal immunity ought to be conferred on the basis of the functional and the
representational character of the official in question and not merely on the status of the
official in the government.65 This position has been reiterated by the practice of states 66 and
has seen recognition in judicial decisions67 and scholarly opinion.68 In the instant case
Ambassador Cusi functions require an active involvement in the foreign affairs of Rincossi. 69
Hence, he enjoys personal immunity for all his actions as a high ranking official in the
Rincossi government.

64 Report of the International Law Commission, 65th Sess., 52, U.N.Doc. A/68/10 (2013).
65 Statement of the Peruvian Representative, 19, U.N.Doc. A /C.6/67/SR.21.
66 Statement of the Chilean Representative, 20 U.N. Doc. A/C.6/67/SR.20; Statements of
the Swiss and Portuguese Representatives, 40 and 82, U.N.Doc. A/C.6/67/SR.21; Statement
of the Algerian Representative 69 U.N.Doc. A/C.6/67/SR.22.
67 Re Bo Xilai, Bow St.Magistrates Court, 8 Nov. 2005, 129 I.L.R 713.
68 Chanaka Wickremasinghe, Immunities Enjoyed By Officials Of States And International
Organizations 380, 401 (Malcom D. Evans ed., 3rd ed. 2010); Paolo Palchetti, Some
Remarks on the Scope of Immunity of Foreign State Officials in the Light of Recent
Judgments of Italian Courts, 19 ITALIAN Y.B. INTL L. 83, 85 (2009); Philippa Webb,
International Judicial Integration and Fragmentation, 73-75 (2013); James Crawford,
Brownlies Principles of Public International Law, 500(8th ed. 2012).
69 R.7 23.

17
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

II.

WHETHER RINCOSSI

HAS VIOLATED

INTERNATIONAL LAW

BY REFUSING TO

RETURN BACK THE IVORY.

Rincossi has not violated International Law by refusing to return the confiscated ivory
tusks.70 Rincossi has acted in accordance with its Treaty obligations and Customary
International Law.
A

Rincossi is under no obligation to return the ivory under conventional

International Law.

A treaty creates binding legal obligations between states that are parties to it. 71 Rincossi has
complied with its treaty obligations in good faith, pursuant to the principle of pacta sunt
servanda72.
1

CPC73 is not applicable in this case.

CPC is a convention under which the States undertook to prevent the trafficking of the
cultural property. The convention is applicable only in the cases where the property in
question qualifies to be a cultural property. Further, the convention provides for the
return of the cultural property only if the prerequisites mentioned under art.7 are

70 R.1232.
71 VCLT, supra note 37, Art 2.
72 Id. Art.26.
73 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property, Nov.14, 1970, 96 Stat.2329, 823 U.N.T.S.231
[Hereinafter CPC].

18
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

satisfied. None of the prerequisites are satisfied in this case, much less it to be a
cultural property.
i

Ivory is not a cultural property.

Article 1 of CPC provides for a list of categories which could be a cultural property and the
prerequisite for that is that the states have to specifically designate

74

the property to be of

cultural or historical importance. In the present case, Aliya hasnt specifically designated
ivory to be a property of cultural importance much less the ivory falls under any of the
categories mentioned under Art.1.
viii.

Ivory is not inventoried.

It is mandatory under this convention that the requesting state should maintain an inventory
of the cultural property that is being requested to be returned. 75 In the instant case, no such
inventory has been maintained listing the individual details of elephants much less the
ivory76.
ix.

Ivory has not been stolen from the institutions mentioned under Art.7.

Art.7 provides protection only to that property which is stolen from the museums, public
monuments or other similar institutions. The scope of the word similar institution is not so

74 CPC, Art.1; UNESCO .Org, (2015), Operative Guidelines for the Implementation of CPC,
Paris

1970,

http://www.unesco.org/new/fileadmin/MULTIMEDIA/HQ/CLT/pdf/OPERATIONAL_GUID
ELINES_EN_FI AL.pdf (last visited Nov 12 2015).
75 CPC, Art. 7(a).
76 R.616.

19
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

vast that it includes a national park, as this can be seen from the preamble 77 of CPC which
restricts the convention only to four institutions namely museums, library, archives and public
monuments. Hence, the ivory which has been stolen from national park isnt covered by this
convention.
5.

Rincossi is acting in accordance with its obligations under CITES.

CITES is an International agreement, which prohibits the trade of endangered and threatened
species, and trade in specimen of those species listed in Appendix-I. Compliance with CITES
requires that parties to the convention take appropriate measures to confiscate or return the
illegally traded specimens78.
The ivory in this case is a specimen of the endangered species Loxodanta thornona, listed in
Appendix- I79 and by applying the general rule of interpretation 80, it is up to the discretion of
Rincossi either to confiscate or return back ivory. Hence, by refusing to return back the ivory,
Rincossi is acting in accordance with CITES.

77 CPC, Preamble, Recital 6.

78 CITES, supra note 38, Art. VIII.
79 R.5 8.
80 VCLT, supra note 37, Art.31.

20
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

6.

Rincossi has not violated its obligations under UNCAC

UNCAC states that the Parties to return the property only in accordance with their domestic
law81. By applying the general rule of interpretation82, in accordance with their domestic
law means in accordance with the obligations under the States domestic law.83
The domestic law of Rincossi provides for destruction of illegal ivory and doesnt permit its
return.84 As return of the ivory is not in accordance with the domestic law of Rincossi,
therefore by not returning there is no violation of UNCAC.
7.

UNTOC endorses domestic law of the states for disposal of confiscated property.

Art.14 of UNTOC states that the parties to the convention shall dispose the criminal proceeds
in accordance85 and only to the extent permitted under domestic law.86 In the instant case, the

81 UNCAC, supra note 39, Art.55.

82 VCLT, supra note 37, Art.31.
83 UNCAC, Traveux Preparatoires, Art.57 Interpretative notes at 516 (United Nations
Publication 2010).
84 R7 22.
85 UNTOC, supra note 40, Art.14 (1).
86 UNTOC, supra note 40, Art. 14(2); Legislative Guides for the Implementation of
UNTOC,

Unodc.org

(2015),

at

https://www.unodc.org/pdf/crime/legislative_guides/Legislative%20guides_Full
%20version.pdf (last visited Nov 13 2015).

152,

21
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

domestic law of Rincossi provides for the destruction of ivory87 and by refusing to return the
property,88 Rincossi is acting in accordance with UNTOC.
(D)

Destruction of illegal ivory is an international custom.

To qualify as an International custom, there must be state practise and opinio juris.89 It is
submitted that there is consistent state practise and opinio juris on destruction of confiscated
illegal ivory tusks.
1

There is sufficient state practise.

For State practice, only those countries, which are substantially interested or majorly affected,
will be counted.90 For instance, in Space Law, for a long time only two nations were
substantially interested and therefore, whatever they did became customary International
Law.
The States in Rabab continent including Rincossi have been destroying the ivory for the past
few years.91Since 1989, 17 countries have been identified as being substantially interested in
the illicit trade in ivory tusks. It is submitted that all 17 nations have consistently and as a

87 R.7 22.
88 R.12 32.
89 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J Reports
226,253 (8th July); Statute of the International Court of Justice, Art.38 (1) (b), 33 U.N.T.S.993
(1945) [I.C.J. Statute].
90 North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 1969 I.C.J.
Reports 3.
91 R.7 22.

22
WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

general practice destroy ivory tusks, publicly.92 In the last three years, 11 countries have
crushed 80 tons of ivory. US,93 China94, Thailand95 are some of the countries who have
expressed their strong concern for protection of elephants by destroying the illegal ivory.
8.

There is requisite opinio juris.

Opinio Juris can be gathered if the State taking such action has behaved in a way that their
conduct is evidence of belief that such practise is rendered obligatory by the existence of a
rule of law requiring it.96

92World

Wildlife

Fund,

2015.

'Crush

And

Burn:

Destroying

http://www.worldwildlife.org/stories/crush-and-burn-destroying-illegal-ivory

Illegal

Ivory

(last

visited

Nov 15 2015).
93 Faith Karimi, C. (2015). U.S. destroys tons of ivory; puts $1 million bounty on traffickers
- CNN.com. CNN, http://edition.cnn.com/2013/11/14/us/wildlife-trafficking-bounty/ (last
visited Nov 12 2015).
94 Reuters, (2015). For the first time, China crushes 6 metric tonnes of ivory in
public,http://www.reuters.com/article/2014/01/06/us-china-ivoryidUSBREA050D820140106 (last visited Nov 10 2015).
95 Reuters, (2015). Thailand wins guarded praise for destroying ivory stockpile,
http://www.reuters.com/article/2015/08/26/us-thailand-ivory-idUSKCN0QV0S620150826
(last visited Nov 10 2015).
96 Nicaragua Case, supra note 8188.

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WRITTEN SUBMISSIONS OF BEHALF OF RESPONDENT

Rincossis incorporation of destruction of ivory in its domestic legislation 97 is a proof that it

considers it to be a legal obligation to destroy the ivory. The London Declaration on Illegal
Trade in Wildlife also endorses the action of states destroying ivory.98
Therefore, there is enough State practise and opinio juris to conclude that destruction of ivory
has become customary law.

97 R.7 22.
98 Declaration of London Conference on the Illegal Wildlife Trade, (London, February 2014)
para 15(2).

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PRAYER FOR RELIEF

For the foregoing reasons, The Republic of Rincossi, Respondent respectfully requests the
Court to adjudge and declare that:
1. The Republic of Rincossi is consistent to its international obligations by refusing to arrest
and prosecute Ambassador Cusi and the 20 members of Barnum Uritovsky for the acts
including illegal ivory trade, corruption and trans-national organized crime which are alleged
against them as perpetrator, co-perpetrator or accomplice and,
2. The Republic of Rincossi is consistent to its international obligations by refusing to return
the confiscated Thornon elephant ivory to Aliya.

Respectfully Submitted on behalf of the Respondent.

Agents for Respondent.