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ANNÉE · YEAR

2017

COUR INTERNATIONALE INTERNATIONAL COURT

DE JUSTICE OF JUSTICE

THE CASE CONCERNING THE SISTERS OF THE SUN

(THE FEDERATION OF THE CLANS OF THE ATAN/THE KINGDOM OF RAHAD)

________

L'AFFAIRE CONCERNANT LES SOEURS DU SOLEIL

(LA FÉDÉRATION DES TRIBUS DE L’ATAN/LE ROYAUME DE RAHAD)

________

MEMORIAL FOR THE RESPONDENT

MÉMORIAL POUR LE DÉFENDEUR


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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................................... ix

TREATIES ....................................................................................................................... ix

JUDICIAL DECISIONS .................................................................................................. x

Decisions of the International Court of Justice and the Permanent Court of

International Justice ................................................................................................. x

Decisions of other Courts and Tribunals .............................................................. xii

STATUTES..................................................................................................................... xiv

BOOKS ........................................................................................................................... xiv

ARTICLES ...................................................................................................................... xv

UN DOCUMENTS ......................................................................................................... xvi

MISCELLANEOUS ...................................................................................................... xix

STATEMENT OF JURISDICTION ........................................................................................ xxi

QUESTIONS PRESENTED .................................................................................................... xxii

STATEMENT OF FACTS ...................................................................................................... xxiii

SUMMARY OF PLEADINGS ............................................................................................. xxviii

PLEADINGS AND AUTHORITIES ...........................................................................................1

I. Rahad’s extraction of water from the Aquifer does not violate Rahad’s international

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legal obligations governing the proper use of shared resources. ...............................................1

A. Rahad has extracted water from the Aquifer consistent with the Principle of

Permanent Sovereignty over Natural Resources. ...................................................1

B. Rahad does not have a customary obligation to equitably use the Greater Inata

Aquifer. .......................................................................................................................2

1. The obligation to equitably use shared rivers does not apply to the

Greater Inata Aquifer....................................................................................2

2. There is no customary obligation to equitably use unconfined fossil

aquifers............................................................................................................2

a) There is inconsistent state practice of equitable use of unconfined

fossil aquifers. .....................................................................................2

b) The equitable use of unconfined fossil aquifers does not arise

from opinio juris. ................................................................................3

3. Even if the obligation exists, it is precluded by the emergency situation

experienced by Rahad....................................................................................3

C. Rahad has not undertaken a unilateral obligation to equitably use the Aquifer. 4

1. The Rahadi Minister did not make a clear and precise declaration. .........5

a) The declaration did not provide the content of the alleged

obligation. ...........................................................................................5

b) The reservation in the statement indicates that it is a political

commitment. .......................................................................................6

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2. The circumstances negate the creation of a binding obligation..................7

a) The statement was made at a political gathering.............................7

b) The reaction of other States affirms its political nature. ................7

3. Assuming that Rahad has undertaken a unilateral obligation, Rahad

validly revoked it. ...........................................................................................8

a) No State has relied on Rahad’s undertaking. ..................................8

b) There was a fundamental change of circumstances that would

justify revocation. ...............................................................................9

i. Rahad’s sufficient access to water was the essential basis for

Rahad’s unilateral obligation. ..................................................9

ii. The droughts were unforeseen. .................................................9

iii. The droughts radically transformed the extent of Rahad’s

obligations. .............................................................................10

D. In any case, Rahad has equitably used the Greater Inata Aquifer. ....................10

1. Rahad established a comprehensive plan considering the interests of

Atania in the Aquifer. ..................................................................................10

2. Rahad has extracted an equitable share from the Aquifer. ......................11

3. Rahad has aimed at maximizing the long-term benefits derived from the

use of the water from the Aquifer. .............................................................12

II. The Savali Pipeline operations do not violate any legal obligations relating to the Kin

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Canyon Complex. .........................................................................................................................12

A. Rahad complied with its duty to cooperate in protecting the Kin Canyon

Complex. ...................................................................................................................13

1. Rahad notified Atania of its plans to construct the Savali Pipeline. ........13

2. Rahad conducted an environmental impact assessment consistent with

international law. .........................................................................................13

3. Rahad has negotiated with Atania in good faith. .......................................15

B. Rahad did not deliberately cause damage to the Kin Canyon Complex. ............16

1. The Kin Canyon Complex did not suffer transboundary damage. ..........16

a) The damage to the Complex was not serious or significant..........16

b) There is no clear and convincing evidence of the damage. ...........17

2. Rahad observed due diligence to prevent damage to the Complex. .........18

3. Rahad observed the precautionary principle. ............................................19

C. Rahad has no obligation to cease the Savali Pipeline operations. .......................19

1. There is no continuing breach. ....................................................................20

2. Assuming Rahad has violated any obligations, such are only procedural in

nature. ...........................................................................................................20

III. Rahad is entitled to retain possession of the Ruby Sipar. ..............................................21

A. Rahad is the lawful possesor of the Ruby Sipar. ...................................................21

1. The Ruby Sipar forms part of the Common Heritage of Mankind. ........21

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2. Atania’s treatment of the Ruby Sipar is an abuse of its right to own the

Ruby Sipar under cultural property law. ..................................................22

B. Rahad has no customary obligation to return the Ruby Sipar. ...........................23

1. The practice of States of returning actual possession of cultural property

has been limited and inconsistent. ..............................................................23

2. The limited cases of restitution have not been accompanied by opinio

juris.. ..............................................................................................................23

C. Rahad has no obligation to return the Ruby Sipar by virtue of the 1970

UNESCO Convention. .............................................................................................24

1. Rahad has not violated the 1970 UNESCO Convention. ..........................24

a) When the Ruby Sipar was taken, the 1970 Convention was not in

force with respect to Rahad. ...........................................................24

b) In any case, the Ruby Sipar was not properly designated as

Atania’s cultural property. .............................................................25

c) Moreover, the acts of Carla Dugo are not attributable to Rahad.26

2. Rahad did not defeat the object and purpose of the 1970 UNESCO

Convention. ...................................................................................................26

a) The object and purpose of the 1970 UNESCO Convention is the

protection of designated cultural property. ...................................27

b) Rahad has not defeated the object and purpose of the 1970

UNESCO Convention. .....................................................................27

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3. In any case, the return of the Ruby Sipar is not the proper means of

reparation. ....................................................................................................28

IV. Atania must compensate Rahad for all direct and indirect expenses incurred and

accruing as a result of accepting members of Clan Kin fleeing from Atania. ........................29

A. Atania owes compensation as a means of reparation for violating the human

rights of the Kin. ......................................................................................................29

1. Rahad has standing with respect to the human rights of the Kin. ...........29

a) Rahad has standing on the basis of erga omnes partes. .................29

b) Rahad is not barred by the doctrine of clean hands from invoking

the responsibility of Atania. ............................................................30

2. Atania has discriminated against the Kin...................................................31

3. Atania has deprived the Kin of their right to an adequate standard of

living. .............................................................................................................31

4. Atania has deprived the Kin of their right to cultural life. .......................32

5. Rahad is entitled to compensation because it is interested in the protection

of the rights of the Kin. ................................................................................33

B. Atania owes compensation by virtue of a quasi-contract. ....................................34

1. Atania caused a mass influx of Kin migrants into Rahad. ........................34

2. Rahad was compelled to fulfill Atania’s human rights obligations..........35

C. Atania owes compensation for violating the sic utere principle in relation to the

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Kin migrants. ............................................................................................................36

PRAYER FOR RELIEF .............................................................................................................38

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INDEX OF AUTHORITIES

TREATIES

Convention on Environmental Impact Assessment in a Transboundary Context,


14
Sept. 10, 1997, 1989 U.N.T.S. 309

Convention on the Law of the Non-navigational Uses of International


2, 4
Watercourses, A/RES/51/49 (May 21, 1997)

Convention on the Prevention of Marine Pollution by Dumping of Wastes and


14
Other Matter, Aug. 30, 1975, 1046 U.N.T.S.138

Convention Relating to the Status of Refugees, April 22, 1954, 189 U.N.T.S.
34
137

International Covenant on Civil and Political Rights, March 23, 1976, 999 29, 31, 32,
U.N.T.S. 171 33, 35

International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1966,


29, 31, 35
993 U.N.T.S. 3

Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606
34
U.N.T.S. 257

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
14
U.N.T.S. 3

United Nations Convention on the Means of Prohibiting and Preventing the


Illicit Import, Export and Transfer of Ownership of Cultural Property, November 24, 25, 27
17, 1970 11806 U.N.T.S. 883

9, 12, 13,
Vienna Convention on the Law of Treaties, May 23, 1969, 115 U.N.T.S. 331
15, 24, 26

12, 13, 16,


World Heritage Convention, Nov. 16, 1972, 1037 U.N.T.S. 151
18, 19

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JUDICIAL DECISIONS
DECISIONS OF THE INTERNATIONAL COURT OF JUSTICE AND THE PERMANENT COURT OF
INTERNATIONAL JUSTICE

Application of the Convention on the Prevention and Punishment of the Crime


5
of Genocide (Bos.-Herz. v. Yugos.), 2007 I.C.J. 595 (Feb. 26)

Application of the Interim Accord of 13 September 1995 (Mac. v. Gre.),


15
Judgment, 2011 I.C.J. 644 (Dec. 5)

Armed Activities on the Territory of the Congo (Congo v. Rwanda), 2006 I.C.J.
5, 6, 7
6

Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005 I.C.J.
1
168 (Dec. 19)

Arrest Warrant (D.R.C. v. Belg.), Judgment, 2002 I.C.J. 3 (Apr. 11) 5

Asylum Case (Colom. v. Peru), Judgment, 1950 I.C.J. 266, 277 (Nov. 20) 3

Avena and Other Mexican Nationals (Mex. v. U.S.A.), Judgment, 2004 I.C.J. 12
30
(Mar. 31)

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spa.), 1970
29, 30
I.C.J. 3 (Feb. 5)

Certain Questions of Mutual Assistance in Criminal Matters (Djib. V. Fr.),


13
Judgment, 2008 I.C.J. 177 (June 4)

Corfu Channel (U.K.v.Alb.), Judgment, 1949 I.C.J. 4 (Apr. 9) 16

Delimitation of the Maritime Boundary in the Gulf of Maine Area (Can. v.


15
U.S.A.), Judgment, 1984 I.C.J. 292 (Oct. 12)

Diversion of Water from the Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B)
30
No. 70 (Jun. 28)

Elettronica Sicula (U.S. v. Italy), Judgment, 1989 I.C.J. Rep 15 (July 20) 8

Factory at Chorzów (Claim for Indemnity) (Ger. v. Pol.), Merits, 1928 P.C.I.J.
33
(ser. A), No. 17, 47

Fisheries Jurisdiction (U.K. v. Ice.), Judgment, 1973 I.C.J. 3 (July 25) 9, 10, 15

Gabčikovo-Nagymaros Project (Hun. v. Slovk.), Judgment, 1997 I.C.J. 7 (Sept. 2, 4, 9, 11,


25) 16, 36

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Jurisdictional Immunities of the State (Ger. v. Ita., Gre. intervening), Judgment,


19
2012 I.C.J. 99 (Feb. 3)

Land, Island and Maritime Frontier Dispute (El Sal.v.Hond., Nicar.intervening),


4, 7
1990 I.C.J. 146 (Sept. 14)

Legal Status of Eastern Greenland (Den.v.Nor.), 1933 P.C.I.J. (ser. A/B) No. 53
5, 6, 30
(Apr. 5)

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996


3, 16, 36
I.C.J. 226 (July 8)

Mavrommatis Palestine Concessions (Gre. v. G.B.), Judgment, 1924 PCIJ 7, 11


7
(Aug. 30)

Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v.


2, 17, 30
United States of America), Merits, Judgment, 1986 I.C.J. Reports 14 (Jun. 27)

North Sea Continental Shelf (Ger. v. Ned) (Ger. v. Den), 1969 I.C.J. 3 (Feb. 20) 2, 8, 15, 23

4, 5, 6, 7,
Nuclear Tests (Austl.v.Fr.), Judgment, 1974 I.C.J. 253 (Dec. 20)
15

2, 4, 10, 13,
Pulp Mills on the River Uruguay (Arg.v.Uruguay), Judgment, 2010 I.C.J. 14 14, 15, 16,
(Apr. 20) 17, 18, 20,
36

Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.),


30, 33
Judgment, 2012 I.C.J. 422 (July 20)

Rights of United States Nationals in Morocco (Fra. v. U.S.A.), Judgment, 1952


27
I.C.J. 176 (Aug. 27)

South West Africa (Eth. v. S. Afr., Lib. v. S. Afr.), Judgment, 1966 I.C.J. 250 31

Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, 1994 I.C.J. 6


27
(Feb. 3)

The Temple of Preah Vihear (Cam. v. Thai.), Judgment, 1962 I.C.J. 6, 21 (Jun.
6
15)

United States Diplomatic and Consular Staff in Tehran (U.S.A. v. Iran),


17, 26
Judgment, 1980 I.C.J. Reports 3

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DECISIONS OF OTHER COURTS AND TRIBUNALS

Arbitration on the Tacna-Arica Question (Chile v. Peru), II R.I.A.A., 930 (1925) 15

A. Racke GmbH & Co. v. Hauptzollamt Mainz, 1998 ECR I-3655 10

Administrative Decision No. 11, United States-German Mixed Claims


36
Commission, Nov. 1, 1923, II R.I.A.A. 29-30

Agudas Chasidei Chabad of the United States v. The Russian Federation, D.C.
28
Circuit Court, 528 F.3d 934, 943 (D.C. Cir. 2008)

Beyeler v. Italy, European Court of Human Rights (ECtHR), Application No.


22
33202/96, Judgment (2000)

Fed. Rep. of Nigeria v. Alain de Montbrison, Paris Ct. of App., Judgment, Apr.
23, 24
5, 2004

Forests of Central Rhodope (Gre. v. Bulg.), 3 R.I.A.A. 1405, cited in Conor


McCarthy, Reparations and Victim Support in the International Criminal Court 21
(2012)

Immigration and Naturalization Service v. Cardozo-Fonsetta (1987), 467 US


34
407

Immigration and Naturalization Service v. Stevic (1984), 467 US 407 34

Inter-American Court of Human Rights (IACtHR), Saramaka People v.


Suriname, Judgment, Aug. 12, 2008 (Interpretation of the Judgment on 28
Preliminary Objections, Merits, Reparations and Costs)

In the Arbitration Regarding the Iron Rhine Railway (Belg. v. Neth), 23


16
R.I.A.A. 35, (Perm. Ct. Arb. 2005)

International Centre for Settlement of Investment Disputes (ICSID), M.C.I.


Power Group L.C. and New Turbine, Inc. v. Republic of Ecuador, ICSID Case 24, 27
No. ARB/03/6, (2007)

Island of Las Palmas (U.S. v Netherlands), 1928 R.I.A.A. 829 (Apr. 4) 1

Lake Lanoux Arbitration (Spa. v. Fr.), 24 I.L.R. 101 (1957) 11, 15

Maritime Boundary Arbitration (Guy. v. Sur.) 47 I.L.M. 166 30

Mazibuko and Others v. City of Johannesburg and Others, Constitutional Ct. of


32
S. Afr. (CCT 39/09), Oct. 8, 2009

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MOX Plant Case (Ire. V. U.K.) Order, Request for Provisional Measures,
14
ITLOS Case No. 10 (2001)

Opel Austria v. Council of the European Union, Judgment of the Court of First
26
Instance (Fourth Chamber), Jan. 22, 1997, Case T-115/94

R v. Secretary of State for the Home Department, Ex parte Sivakumaran and


Conjoined Appeals (UN High Commissioner for Refugees intervening), (1988) 34
1 All E.R. 193

Responsibilities and Obligations of States Parties Sponsoring Persons and


Entities With Respect to Activities on the Area, Advisory Opinion, 2011 ITLOS 29, 33
10 (Feb. 1)

H. G. Venable Case v. United Mexican States (1927) 30

Spanish Zone of Morocco Claims, II R.I.A.A. 615 (1924) 33

The Angola Case, Award I, II R.I.A.A. 1011 (1928) 30

Trail Smelter Arbitration (U.S.v.Can.), III R.I.A.A. 1905,1965 (1941) 16

UN Human Rights Committee (UNHRC), Ominayak v. Canada, Comm. No.


33
167/1894 (1990)

UNHRC, A v. Australia, Comm. No.560/1993 (1997) 36

UNHRC, C v. Australia, Comm. No. 900/99 (2002) 36

UNHRC, D and E v. Australia, Comm. No. 1050/2002 (2006) 36

UNHRC, Länsman v. Finland, Comm. No. 511/1992 (2000) 33

UNHRC, Mahuika v. New Zealand, Comm. No. 547/1993 (2000) 33

UNHRC, van Alphen v. Netherlands, Comm. No.305/1988 (1990) 36

US v. An Antique Platter of Gold, 184 F. 3d 131 (2d Cir. 1999), aff’g 991 F.
24
Supp. 222 (S.D.N.Y. 1997)

Washington v Oregon 297 US 517, 527 11

Yukos Universal Limited (Isle of Man) v Russian Federation, PCA Case No


30
227, [1363] (2014)

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STATUTES

Canada Immigration and Refugee Protection Act, SC 2001, c27 34

New Zealand Immigration Act 2009 34

United States Immigration and Nationality Act, 8 CFR ¶208.16-208.17 (1952) 34

BOOKS

ALPER TASDELEN, THE RETURN OF CULTURAL ARTEFACTS: HARD AND SOFT


24
LAW APPROACHES (2016)

BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL


30
COURTS AND TRIBUNALS (1987)

HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE


22
PCIJ (1934)

HERSCH LAUTERPACHT, THE FUNCTION OF THE LAW IN THE INTERNATIONAL


22
COMMUNITY (1966)

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (6TH ED., 2003) 3

JOHN HENRY MERRYMAN, THINKING ABOUT THE ELGIN MARBLES (2009) 23

LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE (8TH ED., 1955) 22

MARION PANIZZON, GOOD FAITH IN THE JURISPRUDENCE OF THE WTO 27 (2006) 22

PERNILLE ASKERUD & ETIENNE CLEMENT, PREVENTING THE ILLICIT TRAFFIC IN


CULTURAL PROPERTY: A RESOURCE HANDBOOK FOR THE IMPLEMENTATION OF 25
THE 1970 UNESCO CONVENTION (1997)

WILLIAM CLARK, HANDBOOK ON THE LAW OF CONTRACTS (4TH ED., 1939) 34

WILLIAM LIPE, VALUE AND MEANING IN CULTURAL RESOURCES, APPROACHES


12
TO THE ARCHAEOLOGICAL HERITAGE 1 (HENRY CLEERE ED., 1984)

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (2003) 14, 16

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ARTICLES

Aaron Briggs, Consequences of the Met-Italy Accord for the International


24
Restitution of Cultural Property, 7 CHI. J. INT’L L. 623 (2007)

Alan Marchisotto, The Protection of Art in Transnational Law, 7 VAND. J.


21
TRANSNAT’L L. 689 (1974)

Alexandre Kiss, Abuse of Rights, in 1 ENCYCLOPEDIA OF PUBLIC


22
INTERNATIONAL LAW (Rudolf Bernhardted, 1992)

Art Inst. of Chicago et al., Declaration on the Importance and Value of


Universal Museums, reprinted in James Cuno, THE OBJECT OF ART MUSEUMS,
23
IN WHOSE MUSE?: ART MUSEUMS AND THE PUBLIC TRUST 49 (James Cuno ed.,
2004)

Arthur Corbin, Quasi Contractual Obligation, 21 YALE L.J. 533 (1912) 34

Carol A. Roehrenbeck, Repatriation of Cultural Property- Who Owns the Past?


An Introduction to Approaches and to Selected Statutory Instruments, 38 INT. J. 21, 23, 25
LEG. INF. 189 (2010)

Craig Forrest, Cultural Heritage as the Common Heritage of Humankind: A


23
Critical Re-evaluation, 40 COMP. L.J. S. AFR. 124 (2007)

Gunther Handle, The Principle of Equitable Use As Applied to Internationally


Shared Natural Resources: Its Role in Resolving Potential International 11
Disputes Over Transfrontier Pollution,14 REV. BELGE DR. INT’L 40 (1978)

Hannah R. Garry, The Right to Compensation and Refugee Flows: A


‘Preventative Mechanism’ in International Law?, 10 INT’L J. OF REFUGEE L 97 36
(1998)

Irini Stamatoudi, The National Treasures Exception in Article 36 of the EC


12
Treaty: How Many of Them Fit the Bill?, 3 ART ANTIQUITY AND LAW 39 (1998)

Isabelle Buffard & Karl Zemanek, The “Object and Purpose” of a Treaty: An
27
Enigma?, 3 AUSTRIA REV. INT’L & EUR. L. 311, 343 (1998)

James Garner, Draft Convention on the Law of Treaties, 29 AM. J. INT’L. L.


27
SUPP. 653 (1935)

John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM.
25
J. OF INT’L L. 834 (1986)

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Joseph Dellapenna, The Customary International Law of Transboundary Fresh


4
Waters, 1 INT. J. GLOBAL ENVTL ISSUES 264 (2001)

Joseph Kay, The Disputed Historical Artefacts, 4 INT. J. OF ADV. RES. 207
24
(2016).

Kanchana Wangkeo, Monumental Challenges: The Lawfulness of Destroying


16, 18, 22
Cultural Heritage During Peacetime, 28 YALE J. OF INT’L L. 1, 270 (2003)

Katie Sykes, Hunger Without Frontiers: The Right to Food and State
Obligations to Migrants, in THE INTERNATIONAL LAW OF DISASTER RELIEF 34, 35
(DAVID D. CARON, MICHAEL J. KELLY, ANASTASIA TELESETSKY, EDS., 2014)

Luke Lee, Declaration of Principles of International Law on Compensation to


Refugees: Its Significance and Implications, 6 J. OF REFUGEE. STUD. 1, 66 35
(1993)

Lyndel V. Prott, The International Movement of Cultural Objects, 12 INT’L J.


28
CULTURAL PROP. 225 (2005)

Maria Granovsky, A Permanent Resolution Mechanism of Cultural Property


23
Disputes, 8 PEPP. DISP. RESOL. L.J. 25 (2007)

Marilyn Phelan, Cultural Property, 32 INT’L L. 448, 450 (1998) 24

Michael P. Scharf, Accelerated Formation of Custom in International Law, 20


2
ILSA J. INT’L & C.L. 306 (2014)

Renee Martin-Nagle, Fossil Aquifers: A Common Heritage of Mankind, 2 J.


3
Energy & Envt’l L. 51 (2011)

Robert Yewdall Jennings, Some International Law Aspects of the Refugee


36
Question, 20 BRIT. Y.B. INT'L L. 98 (1939)

UN DOCUMENTS

Alain Pellet, Note by the Special Rapporteur on Draft Guideline 3.1.5


27
(Definition of the object and purpose of the treaty), Jun. 21, 2006, A/CN.4/572

CCPR, General Comment No. 23: Rights of Minorities (Apr. 8, 1994) 33

CESCR, General Comment No. 12: The Right to Adequate Food (1999) 32

CESCR, General Comment No. 15: The Right to Water (Jan. 20, 2003) 29, 32

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CESCR, General Comment No. 16: Art. 3: The Equal Right of Men and
31
Women to the Enjoyment of All Economic, Social and Cultural Rights (2005)

GAOR, Sixty-second Session, Supplement No. 10 (A/62/10) 26

Gerald Fitzmaurice, Second Report on the Law of Treaties, U.N./A/CN.4/107, 2


9, 10
YILC 16 (1957)

Humphrey Waldock, Fifth Report on the Law of Treaties, 2 YBILC 1, 39


9
(1966)

I UN Conference on the Law of Treaties [“UNCLOT”], Official Records 365,


9
U.N. Doc. A/CONF.39/11 (1968)

International Law Commission, Draft articles on Articles on State


20, 26, 36
Responsibility, with commentaries, II.2 YILC 31 (2001)

International Law Commission, Draft Articles on the Law of Transboundary


4, 12
Aquifers, with commentaries, II.2 YILC 27 (2008)

International Law Commission, Draft articles on the law of treaties with


9
commentaries, 2 YILC 187 (1966)

International Law Commission, Draft Articles on the Prevention of


18
Transboundary Harm from Hazardous Activities

International Law Commission, Eighth report on unilateral acts of States,


6
A/CN.4/557 (2005)

International Law Commission, Guiding Principles Applicable to Unilateral


5, 7, 8, 9
Declarations of States Capable of Creating Legal Obligations, (2006)

International Law Commission, Guiding Principles applicable to unilateral


declarations of States capable of creating legal obligations, with commentaries 7, 9
thereto, II.2 YILC 369, 372, notes 937-40 (2006)

J. Barboza, Sixth Report on International Liability for Injurious Consequences


Arising out of Acts not Prohibited by International Law, March 15, 1990, UN 16
Doc. A/CN.4/428, arts. 2(b) & (e)

José Martinez Cobo, Study of the Problem of Discrimination Against


28
Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7Add.4

Responsibility of States for Internationally Wrongful Acts, Nov. 2001, 4, 19, 24,
Supplement No. 10 (A/56/10) 26, 28

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UN Commission on Sustainable Development, Comprehensive Assessment of


the Freshwater Resources of the World, Report Of The Secretary General 32
(1997)

UNESCO, Operational Guidelines for the Implementation of the Convention on


the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer 25, 27
of Ownership of Cultural Property

UNGA Res. 2158, A/RES/2158 (XXI) (Nov. 25, 1966) 1

UNGA Res. 3171, A/RES/3171 (XXVIII) (Dec. 17, 1973) 1

UNGA Res. 34/64 (1979) 23

UNGA Res. 50/56 (1995) 23

UNGA Res. 61/52 (2007) 23

UNGA Res. 61/295, UN Declaration on the Rights of Indigenous Peoples


28
(2007)

UNGA Res. 64/292: The human right to water and sanitation, U.N. Doc. No.
31
A/RES/64/2929, (2010)

UNGA Res. 70/76 (2015) 23

UNGA, Convention on the Elimination of All Forms of Discrimination against


31
Women, A/RES/34/180, (1979)

UNGA, International Convention on the Elimination of All Forms of Racial


31
Discrimination, A/RES/2106 (XX), Dec. 21, 1965

UNGA, Rio Declaration on Environment and Development, UN Doc.


1, 14, 19
A/CONF.151/26 Vol. I (1992)

UNGA, United Nations Conference on the Human Environment, A/RES/2994


1, 16
(Dec. 15, 1972)

United Nations Educational, Scientific, and Cultural Organization (UNESCO),


21
Declaration concerning the Intentional Destruction of Cultural Heritage (2003)

United Nations Environment Programme (UNEP) Res. GC14/25 (1987) 14

United Nations General Assembly (UNGA) Res. 1803(XVII),Permanent


1, 3
Sovereignty over Natural Resources, U.N./A/5217 (1962)

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Universal Declaration of Human Rights (UDHR), UNGA Res. 217 A(III)


29
(1948)

UNSC Res. 1483, S/RES/1483 (2003) 23

MISCELLANEOUS

Council Directive 2004/83/EC of Apr. 29, 2004 on Minimum Standards for the
Qualification and Status of Third Country Nationals or Stateless Persons as
34
Refugees or as Persons Who Otherwise Need International Protection and the
Content of the Protection Granted (2004) OJ L304/12

European Roma Rights Center (ERRC), The Protection of Roma Rights in


Serbia and Montenegro, prepared in association with the UN Office of the High 32
Commissioner for Human Rights (2003)

Immigration and Protection Tribunal New Zealand, AN (Malaysia) [2016]


35
NZIPT 800888

Inter-American Bar Association, Principles of Law Governing the Use of


11
International Rivers, II.2 YILC 208 (1974)

Intergovernmental Committee for the Protection of the World Cultural and


Natural Heritage, Operational Guidelines for the Implementation of the World 19
Heritage Convention

International Law Association, The Berlin Rules on Water Resources, Report of


3
the 73rd Conference 3 (2004)

International Law Association (ILA), Declaration of Principles of International


3
Law on Compensation to Refugees, April 1992

International Law Association (ILA), The Helsinki Rules on the Uses of the
3, 11
Waters of International Rivers, Report of the 52nd Conference 484 (1967)

The Marquis de Somerueles: Vice-Admiralty Court of Halifax, Nova Scotia


21
Stewart's Vice-Admiralty Reports 482, 483 (1813)

WHComm., Arabian Oryx Sanctuary, 31 COM 7B.11 17

WHComm., Kakadu National Park, Australia, CONF 205 XI.1 19

WHComm., Dresden Elbe Valley (Germany), 33 COM 7A.26 17

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WHComm., Mt. Nimba Nature Reserve (Cote d’Ivoire v. Guinea), CONF 002
19
VIII SOC

World Heritage Committee (WHComm.), Lake Turkana National Parks


17, 19
(Kenya), 35 COM 7B.3

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STATEMENT OF JURISDICTION

The Federation of the Clans of Atan (“Atania”) and the Kingdom of Rahad (“Rahad”)

have submitted by Special Agreement this present dispute concerning the differences between

the parties concerning the Sisters of the Sun and other matters to the International Court of

Justice (“I.C.J.”), and have transmitted a copy thereof to the Registrar of the Court in accordance

with Article 40(1) of the Statute of the I.C.J. (“Statute”). Therefore, both parties have accepted

the jurisdiction of the Court pursuant to Article 36(1) of the Statute.

The Kingdom of Rahad undertakes to accept the judgment of the Court as final and

binding and shall execute it in utmost good faith.

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QUESTIONS PRESENTED

I.

Whether extraction of water from the Aquifer violates Rahad’s international legal obligations

governing the proper use of shared resources;

II.

Whether the Savali Pipeline operations violate Rahad’s legal obligations relating to the Kin

Canyon Complex;

III.

Whether Rahad is entitled to retain possession of the Ruby Sipar; and

IV.

Whether Atania must compensate Rahad for all direct and indirect expenses incurred and

accruing as a result of accepting members of Clan Kin fleeing from Atania.

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STATEMENT OF FACTS

Descent from the Atan

Atania and Rahad are neighboring States that occupy the arid Nomad Coast. The people

of both States descend from the Atan, the original inhabitants of the Kin Canyon Complex (“the

Complex”), a group of canyons cut by long-extinct rivers straddling the border between the

States. When the rivers dried up thousands of years ago, the Atan inhabitants migrated to coastal

regions and separated into 17 clans. Eventually, 16 of the clans elected to enter into the republic

federation of Atania, while members of clan Rahad remained independent and established the

Kingdom of Rahad.

The Greater Inata Aquifer

The Greater Inata Aquifer (“Aquifer”) is the largest underground source of fresh water in

the Nomad Coast. It covers more than 274,000 square kilometers, 65% of which is located in

Rahad, while 35% is in Atania. The recharge rate of the Aquifer is negligible, and is classified as

an unconfined fossil aquifer. On the first UN World Water Day, the Rahadi Minister of Water

and Agriculture recognized and honored the importance of the Aquifer to both States, with the

reservation that future generations must never be denied access to these valuable resources.

The Kin Canyon Complex

The Complex has been recognized as a continuing source of fascinating insights into

early human civilizations. Within the Complex is a walled fortress known as “the Stronghold”

and the Sunrise Mesa, a freestanding sandstone butte. While two of the three canyons are within

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the borders of Atania, the third canyon and the Sunrise Mesa are within the territory of Rahad.

On 2 May 1994, the World Heritage Committee listed it as a mixed heritage site.

Droughts in the Nomad Coast

Due to record low rainfall, the region experienced sustained drought from 1983 to 1988.

Both States were forced to import water from other countries at great expense. Rahad even

permitted the drilling of wells on public land for private, agricultural, and commercial use.

Unfortunately, drought conditions returned to the region in 1999 and continue to the present day.

Construction of the Savali Pipeline

Queen Teresa of Rahad informed Atania of her order to extract water from the Aquifer as

a short-term solution to the increasingly serious water crisis in Rahad. In response to the

concerns raised by President Vhen of Atania, Rahad conducted an environmental impact

assessment in compliance with Rahadi’s domestic law. Rahad submitted the Savali Pipeline plan

to the World Heritage Committee for review. In constructing the Savali Pipeline, Rahad

complied with the recommendations of the World Heritage Committee and drilled 15 kilometers

outside of the Complex’s 2-kilometer buffer zone.

Impacts of the Extraction

Although Rahad’s extraction of water was conducted in accordance with the highest

possible standards of care, there were inevitable repercussions to its extraction. The Atanian

Ministry of Water and Agriculture determined that the Savali Pipeline operations had caused a

lowering of the water table in the region. The World Heritage Committee granted Atania’s

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application to place the Complex in the list of World Heritage in Danger.

Rahad’s Corrective Measures

To prevent further harm, Rahad committed to undertake regular studies of the long-term

impact of this project on the region and the Complex. Rahad entered into discussions with the

World Heritage Committee on a program of corrective measures. Rahad will present plans for

implementation at the 2017 Meeting in Krakow, Poland.

The WRAP Act

Atania enacted the Water Resource Allocation Program Act (“WRAP Act”) in response

to the loss of farmable land. The WRAP Act set a quota on water supplied to households, farms,

and businesses and required farming operations to purchase licenses to utilize public water.

However, it exempted virtually all farming operations within Atania, except for subsistence

farmers, 98% of whom belong to Clan Kin.

Discrimination of the Kin

The Clan Kin remain culturally and politically isolated from Atanian society. They live

off the land through farming, hunting, and gathering. Since their cultural traditions prevented

them from applying for licenses, they were prosecuted, fined, and sent to prison under the

WRAP Act. In order to strengthen the law, the WRAP Act was amended to allow for the

termination of the water supply to those who violate the law. By 2013, the state-controlled water

was cut off for a majority of the Kin farms. Both the United Nations Food and Agriculture

Organization and the International Federation of the Red Cross and Red Crescent reported the

lack of access to water has led to severe deprivation, food-deprivation-related illnesses, and

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undernourishment.

Protests in Atanagrad

The Sisters of the Sun, an order of women dedicated to protect and preserve the culture of

the Kin, participated in a series of protests in Atanagrad against the systematic persecution of the

Kin. Carla Dugo, one of the elders, chained herself to a flagpole outside the President’s residence,

and engaged in a hunger strike. Thousands of protesters, comprised of Sisters of the Sun, the Kin,

and their supporters, assembled in the plaza and the immediate vicinity. Claiming that the

protests were seditious, President Vhen dispersed the rallies by firing at the people, deploying

tear gas, and ordering the seizure and destruction of the Ruby Sipar Pendants worn by the

demonstrators.

The Ruby Sipar

The Ruby Sipar is a ceremonial shield that was raised by Teppa, the legendary warrior of

the Clan Kin, upon the defeat of the invaders of the Nomad Coast in 500 CE. The Ruby Sipar is a

symbol of respect and represents the unity of the clans within the Nomad Coast. After its

discovery, it was moved to the Cultural Center on the Atanian side of the Complex. However,

the Ruby Sipar was removed from public display in the complex and placed in storage after

President Vhen declared it a symbol of sedition.

The Kin Flee to Rahad

Pursuant to President Vhen’s orders, nearly 2,000 Sisters of the Sun and Kin protesters

were arrested and charged with disturbing the peace. In light of the discriminatory WRAP Act,

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and suppression of the political demonstrations, the Kin fled to Rahad due to fear of arrest and

starvation.

The Taking of the Ruby Sipar

Carla Dugo was discovered at one of the camps in Rahad. Before entering Rahad, she

entered the Kin Canyon Complex Cultural Center in Atania and took the Ruby Sipar with the

assistance of the employees in the Cultural Center. She turned over the Sipar to the border agents

to ensure its protection from destruction.

Rahad Provides Protection to the Kin

The Rahadi Parliament enacted the Kin Humanitarian Assistance Act to assist the Kin

who were forced to escape hardship and persecution in their homeland. In cooperation with the

United Nations High Commissioner for Refugees, the Government established three temporary

camps. As of the date of the Special Agreement, roughly 800,000 Kin have crossed the border

into Rahad and have taken refuge within the State. According to the Rahadi Ambassador to

Atania, the expenditures associated with running the camps, damage to national infrastructure,

and the basic needs of the Kin amounts to US$945,000,000 and continues to accrue. The mass

influx has placed a great toll on Rahad’s economy and resources, resulting in sporadic power

outages, and reduced access to clean water to the people in Rahad.

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SUMMARY OF PLEADINGS

Rahad’s extraction of water from the aquifer does not violate Rahad’s international
legal obligations governing the proper use of shared resources.

Rahad has extracted water from the aquifer consistent with the principle of permanent

sovereignty over natural resources. The obligation to equitably use shared rivers does not apply

to unconfined fossil aquifers. In any case, it is precluded by the emergency situation experienced

by Rahad.

Rahad has not undertaken a unilateral obligation to equitably use the aquifer. The Rahadi

Minister for Water and Agriculture did not possess the authority to bind Rahad, nor was the

declaration clear and precise. In any case, Queen Teresa validly revoked the declaration because

of the drought.

Finally, Rahad has equitably used the aquifer as it established a comprehensive plan

considering the interests of Atania, did not deprive Atania of a reasonable share of the aquifer,

and aimed at maximizing long-term benefits derived from the use of the water.

The Savali Pipeline operations do not violate any legal obligations relating to the
Kin Canyon Complex.

As a State Party to the World Heritage Convention, Rahad has an obligation to protect

and to not deliberately cause damage to the the Kin Canyon Complex. This obligation includes

the duty to cooperate with Atania to protect the Complex, and to observe due diligence in order

to prevent any harm to the heritage in the territory of Atania.

Rahad has complied with its obligations when it notified Atania of its plans to construct

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the Savali Pipeline, conducted an environmental assessment consistent with international law,

and negotiated with Atania in good faith. Rahad undertook active and effective measures to

protect the heritage, and observed the precautionary principle. Rahad did not deliberately cause

damage to the Kin Canyon Complex.

Rahad acted consistent with its international obligations and is not in any breach. In any

case, the alleged breach are merely procedural and violation of the same does not justify

cessation.

Rahad is entitled to retain possession of the Ruby Sipar.

The Ruby Sipar forms part of the common heritage of mankind. Rahad is the lawful

possessor of the Sipar as it can adequately protect the same consistent with its cultural

significance. Atania’s treatment of the Sipar amounts to an abuse of a right of ownership, and

this prohibits the Atania from claiming the return of the property. Moreover, Rahad has no

customary obligation to return the Sipar.

When the Sipar was taken, the 1970 Convention was not in force with respect to Rahad.

In addition, the Sipar was not properly designated as Atania’s cultural property. As such, Rahad

has not violated the 1970 Convention. Carla Dugo’s acts are not attributable to Rahad. Further,

Rahad did not defeat the object and purpose of the the 1970 Convention which is to protect

cultural property. In any case, the return of the Sipar is not the proper means of reparation as the

property is culturally significant to the Kin and it must remain in their possession.

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Atania must compensate Rahad for all direct and indirect expenses incurred and
accruing as a result of accepting members of Clan Kin fleeing from Atania.

Atania owes Rahad compensation as a means of reparation for violating the human rights

of the Kin. The Kin were discriminated through the WRAP Act, which deprived the Kin of their

right to adequate standard of living and the right to a cultural life. Rahad has standing on the

basis of erga omnes partes and is not barred by the clean hands doctrine. Further, Rahad is

entitled to compensation because it is interested in the protection of the rights of the Kin.

Atania owes Rahad compensation by virtue of a quasi-contract. Atania caused a mass

influx of Kind migrants in Rahad, and the latter was compelled to fulfill Atania’s human rights

obligations. Atania owes Rahad compensation for violating the doctrine sic utere ut alienum non

laedas. The WRAP Act is linked to the damage incurred by Rahad, including reduced access of

Rahadis to clean water, sporadic power outages all over the country, and security issues related

to the Kin unable to adjust to Rahadi life. Rahad incurred costs amounting to USD 945,000,000,

constituting almost 10% of its GDP.

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PLEADINGS AND AUTHORITIES

I. RAHAD’S EXTRACTION OF WATER FROM THE AQUIFER DOES NOT VIOLATE RAHAD’S
INTERNATIONAL LEGAL OBLIGATIONS GOVERNING THE PROPER USE OF SHARED
RESOURCES.

A. RAHAD HAS EXTRACTED WATER FROM THE AQUIFER CONSISTENT WITH THE
PRINCIPLE OF PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES.

Nations have permanent sovereignty over their natural wealth and resources (“PSNR”),

and must use these resources towards their national development and the well-being of their

people.1 This rule of customary international law2 derives from the principles of sovereignty and

territorial integrity,3 and applies to all natural resources of a State.

In state practice, Jordan and Saudi Arabia have both unilaterally exploited the Qa-Disi

Aquifer in order to satisfy their sovereign needs.4 The Intercalaire Aquifer shared by Libya,

Algeria, and Tunisia has met similar treatment.5 Since the Aquifer is located within Rahad’s

territory, Rahad, a developing nation, has a right to exploit this resource.

1
United Nations General Assembly (UNGA) Res. 1803 (XVII), Permanent Sovereignty
over Natural Resources, U.N./A/5217 (1962) [“PSNR”], pmbl., art. 1(1)-(2), (6)-(7); UNGA Res.
2158 (1966); UNGA Res. 3171 (1973). See UNGA, United Nations Conference on the Human
Environment, A/RES/2994 (1972) [“Stockholm Declaration”] principle 21; UNGA, Rio
Declaration on Environment and Development, UN Doc. A/CONF.151/26 Vol. I (1992) [“Rio
Declaration”] principle 2.
2
Armed Activities on the Territory of the Congo (D.R.C. v. Uganda), 2005 I.C.J. 168
¶244.
3
See Island of Las Palmas (U.S. v Netherlands), 1928 R.I.A.A. 829, 839 (Apr. 4).
4
Renee Martin-Nagle, Fossil Aquifers: A Common Heritage of Mankind, 2 J. ENERGY &
ENVT’L L. 51 (2011).
5
Id.

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B. RAHAD DOES NOT HAVE A CUSTOMARY OBLIGATION TO EQUITABLY USE THE GREATER
INATA AQUIFER.

1. The obligation to equitably use shared rivers does not apply to the Greater Inata
Aquifer.

While this Court and the PCIJ have affirmed the principle of equitable use in shared

watercourses and rivers,6 it has not considered its application in transboundary aquifers. Even the

1997 Watercourses Convention, which codifies the customary rules on these resources, does not

include in its scope unconfined fossil aquifers.7 Shared rivers and unconfined fossil aquifers

differ in nature, purpose, and function, and cannot be treated as equivalents.

2. There is no customary obligation to equitably use unconfined fossil aquifers.

A customary rule exists when there is settled state practice and opinio juris sive

necessitatis.8 The practice of states with respect to the three documented utilized transboundary

fossil aquifers does not establish the existence of custom as regards equitable use.

a) There is inconsistent state practice of equitable use of unconfined fossil


aquifers.

According to North Sea, state practice must be extensive and virtually uniform.9 When

state practice is characterized by substantial contradiction and fluctuation, it is impossible to

6
Pulp Mills on the River Uruguay (Arg. v. Uruguay), Judgment, 2010 I.C.J. 14 [“Pulp
Mills”]; Gabčikovo-Nagymaros Project (Hun. v. Slovk.), 1997 I.C.J. 7 [“Gabčikovo-
Nagymaros”].
7
Convention on the Law of the Non-navigational Uses of International Watercourses,
A/RES/51/49, May 21, 1997 [“Watercourses Convention”] art. 1(1).
8
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, 1986 I.C.J. Reports 14 [“Nicaragua”] ¶207; North Sea
Continental Shelf (Ger. v. Ned) (Ger. v. Den), 1969 I.C.J. 3 [“North Sea”] ¶77; Michael P.
Scharf, Accelerated Formation of Custom in International Law, 20 ILSA J. INT’L & C.L. 306
(2014).
9
North Sea, ¶74.

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derive virtually uniform and widespread usage, and the rule cannot be accepted as law.10 In

practice, nations lying above unconfined fossil aquifers extract on a first-come, first-serve

basis.11 Various legal instruments that promote otherwise are not legally binding and do not

codify customary international law on unconfined fossil aquifers.12

b) The equitable use of unconfined fossil aquifers does not arise from opinio
juris.

General Assembly resolutions provide material source13 of the fact that states consider a

particular rule to imbibe a sense of legal obligation depending on the circumstances surrounding

its adoption.14 The Draft Articles on Transboundary Aquifers were adopted without a vote;15

states do not endorse the content of the resolution.

3. Even if the obligation exists, it is precluded by the emergency situation


experienced by Rahad.

The Draft Articles on Transboundary Aquifers acknowledges that the obligation to

equitably use a transboundary aquifer would not apply in case of an emergency situation.16 This

10
Asylum Case (Colom. v. Peru), Judgment, 1950 I.C.J. 266, 277 (1950).
11
Martin-Nagle, supra note 4, at 52; See PSNR, pmbl., art. 1(1)-(2), (6)-(7).
12
See International Law Association (ILA), The Helsinki Rules on the Uses of the
Waters of International Rivers, Report of the 52nd Conference 484 (1967) [“Helsinki Rules”];
ILA, The Berlin Rules on Water Resources, Report of the 73rd Conference 3 (2004).
13
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 1(6th ed., 2003).
14
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226
(July 8) [“Nuclear Weapons”].
15
UNGA Res. 63/124, The law of transboundary aquifers (2009) [“Law of
Transboundary Aquifers”].
16
Law of Transboundary Aquifers, art. 17.

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is analogous to the customary law on a state of necessity.17 The rationale is that over 97% of

freshwater comes from groundwater,18 and is vital to human survival. 19 Accordingly, states have

an obligation to respond to emergency situations that threaten the rights of its people,20 which is

an obligation with primacy over the principle of equitable use.21

In light of the record-low rainfall since 1999 and the gradual increase of temperature

throughout the Nomad Coast,22 Rahad experienced a serious water crisis that could not be

resolved by importing water.23 According to Special Rapporteur Yamada, these conditions are

factors that have accumulated over time, which generate a “creeping” emergency situation.24

C. RAHAD HAS NOT UNDERTAKEN A UNILATERAL OBLIGATION TO EQUITABLY USE THE


AQUIFER.

While it is recognized that unilateral declarations by states may have the effect of

creating legal obligations,25 Rahad has made no such declaration. The statement of the Rahadi

17
Responsibility of States for Internationally Wrongful Acts, Nov. 2001, Supplement No.
10 (A/56/10) [“Articles on State Responsibility”], art. 25; See Gabčikovo-Nagymaros, ¶51.
18
Joseph Dellapenna, The customary international law of transboundary fresh waters, 1
INT. J. GLOBAL ENVT’L ISSUES 264, 274 (2001).
19
International Law Commission (ILC), Draft Articles on the Law of Transboundary
Aquifers, with commentaries, II.2 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION (YILC)
27, 76 (2008).
20
Law of Transboundary Aquifers, art. 17; Watercourses Convention, art. 28.
21
Pulp Mills, ¶177.
22
Compromis, ¶19.
23
Id., ¶22.
24
ILC, supra note 19, at 73.
25
Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253 (Dec. 20) [“Nuclear Tests”]
¶46; Land, Island and Maritime Frontier Dispute (El Sal. v. Hond., Nicar. intervening), 1990
I.C.J. 146 (Sept. 14) [“Frontier Dispute”] ¶351; ILC, Guiding Principles Applicable to Unilateral
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Minister of Water and Agriculture (“Rahadi Minister”) in 1993 did not bind Rahad to any

obligation with respect to the Greater Inata Aquifer (“Aquifer”). The Rahadi Minister did not

possess the authority to undertake an obligation on behalf of Rahad.

Only heads of State, heads of Government, and ministers for foreign affairs have been

found competent to bind States with their declarations.26 The dictum in the Armed Activities case

states the only time other persons may bind the state is if they hold technical ministerial

portfolios and exercise powers in their field of competence in the area of foreign relations.27

However, according to the ILC, these persons must first be authorized to make such statements.28

In this case, the Queen’s appointment of the Rahadi Minister to act in relation to the Aquifer29

did not extend to the authority to make binding declarations.

1. The Rahadi Minister did not make a clear and precise declaration.

a) The declaration did not provide the content of the alleged obligation.

In Nuclear Tests, the Court held that a unilateral declaration may only have the effect of

creating legal obligations if it is stated in clear and specific terms. 30 When a statement

Declarations of States Capable of Creating Legal Obligations, (2006) [“Unilateral Declarations


Guidelines”] principle 1.
26
Unilateral Declarations Guidelines, principle 4; Nuclear Tests, ¶49-51; Application of
the Convention on the Prevention and Punishment of the Crime of Genocide (Bos.-Herz. v.
Yugos.), 2007 I.C.J. 595, ¶44; Arrest Warrant (D.R.C. v. Belg.), Judgment, 2002 I.C.J. 3
[“Arrest Warrant”] ¶53; Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser.
A/B) No. 53 (Apr. 5) [“Eastern Greenland”] , 71. See Nuclear Tests, ¶¶49-51.
27
Armed Activities on the Territory of the Congo (New Application 2002) (D.R.C. v.
Rwanda), 2006 I.C.J. 6 [“Armed Activities”] ¶47.
28
Unilateral Declarations Guidelines, principle 4.
29
See Compromis, ¶¶15, 18.
30
Nuclear Tests, ¶¶43, 51 & 53; Unilateral Declarations Guidelines, principle 7.

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purportedly limits a state’s freedom, a restrictive interpretation is called for.31 In the cases where

courts have found a unilateral obligation to exist, the obligation was always clear – to recognize

sovereignty,32 acknowledge boundaries,33 or to halt nuclear testing.34 In Armed Activities, since

the statement of the Rwandi Minister of Justice did not indicate a precise time-frame for the

withdrawal of reservations, the Court found that it was a mere declaration of intent.35

The statement of the Rahadi Minister did not define “equitable use” or what it entails.

When the declaration was made in 1993, the States were not aware of the contents of the Aquifer

or its non-recharging character.36 Rahad could not have bound itself to an obligation that was not

clear and precise.

b) The reservation in the statement indicates that it is a political commitment.

When a state provides multiple exceptions to its unilateral declarations, it tends to prove

that there was no intent to be bound by a legal obligation.37 In practice, states have requested

binding conventions when statements were coupled with exceptions.38 The Rahadi Minister

31
Nuclear Tests, ¶¶44, 47.
32
Eastern Greenland, at 71.
33
The Temple of Preah Vihear (Cam. v. Thai.), Judgment, 1962 I.C.J. 6, 21 (Jun. 15)..
34
Nuclear Tests, ¶53
35
Armed Activities, ¶52.
36
Compromis, ¶18.
37
ILC, Eighth report on unilateral acts of States, A/CN.4/557 (2005), ¶15.
38
Id., ¶¶113-114.

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explicitly stated that “future generations must be assured that they will never be denied access”

to water, casting doubt on the binding nature of the obligation.39

2. The circumstances negate the creation of a binding obligation.

a) The statement was made at a political gathering.

The legal effect of a statement depends on the circumstances in which it was made.40

Based on decisions of the PCIJ and ICJ, unilateral obligations are more likely to arise when

statements are made in the context of an ongoing dispute.41 Greater caution must be exercised

when a unilateral declaration is not directed to any particular recipient.42 In Armed Activities, a

presentation of general policy before an international body was not binding. 43 The Rahadi

Minister’s statement was a general statement of policy made in honor of UN World Water Day.44

b) The reaction of other States affirms its political nature.

Importance should be given to the reaction of other States in determining a statement’s

legal effect 45 even though other States need not accept obligation. 46 The statement only

39
Compromis, ¶16.
40
Armed Activities, ¶49; Nuclear Tests, ¶51; Frontier Dispute, ¶¶39-40.
41
Mavrommatis Palestine Concessions (Gre. v. G.B.), Judgment, 1924 PCIJ 7, 11 (Aug.
30).
42
Frontier Dispute, ¶39.
43
Armed Activities, ¶53.
44
Compromis, ¶16.
45
Unilateral Declarations Guidelines, principle 3. For examples, see ILC, Guiding
Principles applicable to unilateral declarations of States capable of creating legal obligations,
with commentaries thereto, II.2 YILC 369, 372, notes 937-40 (2006).
46
Nuclear Tests, ¶46.

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recognized the importance of water to all who live in the Nomad Coast.47 The Atanian Minister

counterpart merely acknowledged the statement as a “neighborly gesture of cooperation and

brotherhood,” 48 whereas the UN Secretary General referred to the same as a “model of

cooperation.”49

3. Assuming that Rahad has undertaken a unilateral obligation, Rahad validly


revoked it.

According to the ILC, once a State has undertaken a unilateral obligation, it may revoke it

so long as revocation is not done arbitrarily.50 If Rahad did undertake a unilateral obligation,

Queen Teresa properly revoked it.51

a) No State has relied on Rahad’s undertaking.

A revocation may be arbitrary depending on the extent to which those to whom the

obligations are owed have relied on such obligations.52 This embodies the principle of estoppel,

whereby one party has detrimentally relied on the statement of another.53 No one has relied on

the statement, as it was merely deemed a neighborly gesture of cooperation.

47
Compromis, ¶16.
48
Id.
49
Id., ¶17.
50
Unilateral Declarations Guidelines, principle 10.
51
Compromis, ¶22.
52
Unilateral Declarations Guidelines, principle 10.
53
North Sea, at 26; Elettronica Sicula (U.S. v. Italy), Judgment, 1989 I.C.J. Rep 15, ¶54.

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b) There was a fundamental change of circumstances that would justify
revocation.

A revocation may be valid if it was done pursuant to a fundamental change in

circumstances.54 The elements of a fundamental change in circumstance55 are present in this case.

i. Rahad’s sufficient access to water was the essential basis for Rahad’s
unilateral obligation.

A circumstance forms an essential basis of consent if its change or absence would have

led all States Parties to draft a treaty differently, or not enter into it at all.56 The declaration’s

essential basis was that future generations will never be denied access to water.57 The sufficiency

of water for the people of Rahad was an essential basis for Rahad’s consent to be bound.

ii. The droughts were unforeseen.

A fundamental change in circumstances must be “not foreseen by the parties.” 58

Foreseeability is not enough to preclude the principle’s application. 59 The increase in

temperature was not documented until 2001.60 Since the end of the drought in 1988, 61 Rahad did

54
Unilateral Declarations Guidelines, principle 10; See Gabčikovo-Nagymaros, ¶104; I
UN CONFERENCE ON THE LAW OF TREATIES, OFFICIAL RECORDS 365, U.N. Doc. A/CONF.39/11
(1968) ¶22; II UNCLOT 116. ILC, Draft articles on the law of treaties with commentaries,
(1966) 2 YILC 187, 257.
55
ILC, supra note 45 at 381, note 984. See Vienna Convention on the Law of Treaties,
May 23, 1969, 115 UNTS 331 [“VCLT”] art. 62; Fisheries Jurisdiction (U.K. v. Ice.), Judgment,
1973 I.C.J. 3 [“Fisheries Jurisdiction, U.K. v. Ice.”] ¶36; Gabčikovo-Nagymaros, ¶104.
56
Gerald Fitzmaurice, Second Report on the Law of Treaties, U.N./A/CN.4/107, 2 YILC
16 (1957) ¶171,.
57
Compromis, ¶16.
58
VCLT, art. 62(1); Gabčikovo-Nagymaros, ¶104.
59
Humphrey Waldock, Fifth Report on the Law of Treaties, 2 YILC 1, 39 (1966).
60
Compromis, ¶19.

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not foresee in 1993 that the drought would return with even greater severity to the Nomad

Coast.62

iii. The droughts radically transformed the extent of Rahad’s obligations.

Obligations radically transform when they are “something essentially different from that

originally undertaken.”63 Their continued performance must be more onerous or unreasonable.64

The droughts returned in 1999 with record-low rainfall resulting in a long-term shortage of

water.65 Preserving the Aquifer became an unreasonable obligation.

D. IN ANY CASE, RAHAD HAS EQUITABLY USED THE GREATER INATA AQUIFER.

Assuming the obligation exists, Rahad has equitably used the Aquifer because (1) Rahad

established a comprehensive plan that considered the interests of Atania, (2) Rahad has not

deprived Atania of a reasonable share of the Aquifer, and (3) Rahad has aimed at maximizing the

long-term benefits derived from the use of the water.66

1. Rahad established a comprehensive plan considering the interests of Atania in


the Aquifer.

In Pulp Mills, the Court ruled that utilization is equitable if the interests of the other State

are taken into account.67 The prior existence of benefits derived from a shared resource by one

61
Id., ¶14
62
Id., ¶19.
63
Fisheries Jurisdiction (U.K. v. Ice.), ¶43.
64
A. Racke GmbH & Co. v. Hauptzollamt Mainz, 1998 ECR I-3655, ¶54-55, 57;
Fitzmaurice, supra note 56, at 60.
65
Compromis, ¶19.
66
Law of Transboundary Aquifers, art. 4.
67
Pulp Mills, ¶177.

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state is significant,68 but does not bar future use by the other state.69 As held in Lake Lanoux, the

interests of one State cannot be placed on the same plane as the rights of another State.70

By communicating with President Vhen,71 Rahad became aware of Atania’s interests in

the discharge.72 This cannot be given primacy over Rahad’s right to permanent sovereignty over

natural resources. In any case, the discharge from the Aquifer has only been reduced.73

2. Rahad has extracted an equitable share from the Aquifer.

In Gabčikovo-Nagymaros, Czechoslovakia’s acts were deemed inconsistent with

Hungary’s right to an equitable share of the River Danube because it appropriated for its benefit

nearly 90% of the waters of the Danube notwithstanding the fact that it was a shared

international watercourse.74 In contrast, Rahad has consumed not more than a third of the water

contained in the Aquifer.75 Whether the standard is that of absolute equality, or one based on the

proportional size of the Aquifer within one state’s territory,76 Rahad has not exceeded its share.

68
Helsinki Rules, art. VIII; Washington v Oregon 297 US 517, 527; Inter-American Bar
Association, Principles of Law Governing the Use of International Rivers art. 2, II.2 YILC 208
(1974) ¶1092.
69
Gunther Handle, The Principle of Equitable Use As Applied to Internationally Shared
Natural Resources: Its Role in Resolving Potential International Disputes Over Transfrontier
Pollution, 1978 14 REV. BELGE DR. INT’L 40, at 50.
70
Lake Lanoux Arbitration (Spa. v. Fr.), 24 I.L.R. 101 (1957) [“Lake Lanoux”] ¶ 23.
71
Compromis, ¶22.
72
Id., ¶28.
73
Id.
74
Gabčikovo-Nagymaros, ¶¶78, 85.
75
Compromis, ¶26.
76
Id., ¶15.

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3. Rahad has aimed at maximizing the long-term benefits derived from the use of
the water from the Aquifer.

Aquifer States must take into consideration present and future needs in assessing and

establishing a comprehensive utilization plan in order to maximize the long-term benefits derived

from the limited water contained in unconfined fossil aquifers.77 Further, planning a longer

period of utilization is only more desirable in the case of a recharging aquifer in order to take

advantage of sustained usage.78 The aquifer’s nature determines the duty to maximize. It is

sufficient that Rahad determined the rate of extraction to match its projected consumption,

growth, and development considering its current and future needs.79

II. THE SAVALI PIPELINE OPERATIONS DO NOT VIOLATE ANY LEGAL OBLIGATIONS RELATING
TO THE KIN CANYON COMPLEX.

As States Parties to the World Heritage Convention (“WHC”), 80 Rahad and Atania

identified and delineated the Kin Canyon Complex (“Complex”) as rightfully belonging in the

UNESCO World Heritage List.81 The Savali Pipeline operations (“Savali Pipeline”) is consistent

with international law.

77
ILC, supra note 19, at 42.
78
Id.
79
Compromis, ¶21
80
Id., ¶59; VCLT, art. 26.
81
World Heritage Convention art. 3, Nov. 16, 1972, 1037 UNTS 151 [“WHC”]. See
William Lipe, Value and Meaning in Cultural Resources, APPROACHES TO THE
ARCHAEOLOGICAL HERITAGE 1 (Henry Cleere ed., 1984); Irini Stamatoudi, The National
Treasures Exception in Article 36 of the EC Treaty: How Many of Them Fit the Bill?, 3 ART
ANTIQUITY AND LAW 39, 47 (1998); Compromis, ¶6.

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A. RAHAD COMPLIED WITH ITS DUTY TO COOPERATE IN PROTECTING THE KIN CANYON
COMPLEX.

The WHC imposes obligations on all States parties to cooperate in the protection and

conservation of the cultural and natural heritage found in the territory of other States. 82 In light

of the customary rules of treaty interpretation,83 Rahad has complied with its obligations.

1. Rahad notified Atania of its plans to construct the Savali Pipeline.

The obligation to notify other States of plans that may have transboundary impact is

intended to create conditions for successful cooperation between the parties.84 It enables parties

to assess the risks of the plan and negotiate possible changes.85 Notification is sufficient when

information is communicated directly to the other party.86

Queen Teresa informed Atania of the plan to extract from the Aquifer through a televised

statement. 87 Atania was directly notified, as evidenced by President Vhen’s expression of

gratitude for the Queen’s remarks.88

2. Rahad conducted an environmental impact assessment consistent with


international law.

States are obliged to undertake an environmental impact assessment (“EIA”) when there

82
WHC art. 4, 6(1) & (3).
83
VCLT, art. 31(c).
84
Pulp Mills, ¶113.
85
Id., ¶115.
86
Certain Questions of Mutual Assistance in Criminal Matters (Djib. V. Fr.), Judgment,
2008 I.C.J. 177, ¶150; Pulp Mills, ¶109-110.
87
Compromis, ¶22.
88
Id., ¶23.

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is a risk that a proposed industrial activity may have adverse impact on a shared resource.89

Various international instruments that require environmental impact assessments do not

specifically describe the required content, 90 and are not binding on Rahad. 91 Customary

international law does not specify the scope and content of the EIA, and each State may

determine in its domestic legislation the assessment required in each case.92 The EIA satisfies its

purpose if it helps prevent, reduce, and control significant adverse transboundary effects.93

Rahad instructed ILSA to evaluate the long-term effects of directly tapping the Aquifer,94

and to conduct an environmental impact assessment in compliance with Rahadi domestic law.95

Later, Rahad submitted the Savali Pipeline plans to the World Heritage Committee

(“Committee”) to assess any possible impact to the Complex.96

89
Pulp Mills, ¶204.
90
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 3 art.
206; See MOX Plant Case (Ire. V. U.K.) Order, Request for Provisional Measures, ITLOS Case
No. 10 (2001); Convention on the Prevention of Marine Pollution by Dumping of Wastes and
Other Matter, Aug. 30, 1975, 1046 UNTS 138 art. 11.
91
Rio Declaration, principle 17; United Nations Environment Programme (UNEP) Res.
GC14/25 (1987); Convention on Environmental Impact Assessment in a Transboundary Context,
Sept. 10, 1997, 1989 UNTS 309.
92
Pulp Mills, ¶205.
93
XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003).
94
Compromis, ¶20.
95
Clarifications, ¶3.
96
Compromis, ¶24.

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3. Rahad has negotiated with Atania in good faith.

The duty to cooperate, in light of the principles of treaty interpretation,97 implies a duty to

negotiate in good faith such that negotiations are meaningful.98 In Chile v. Peru, the Tribunal

found that clear and convincing evidence must be submitted to compel such a conclusion.99 The

duty to negotiate does not include giving the other party the right of veto. 100 Neither does it

require lengthy negotiations.101 To prove bad faith, something more must appear than the failure

of negotiations.102

Rahad demonstrated its concern for Atania’s interests through its responses to Atania.103

Since Atania insisted on its position without contemplating any modifications,104 Rahad was

right to proceed with the construction at its own risk.105 To cease extraction because of an

invitation for further discussion would effectively grant Atania a right of veto.

97
VCLT, art. 31.
98
Application of the Interim Accord of 13 September 1995 (Mac. v. Gre.), Judgment,
2011 I.C.J. 644 [“Interim Accord”], ¶¶131-132, citing VCLT, art. 26; Delimitation of the
Maritime Boundary in the Gulf of Maine Area (Can. v. U.S.A.), Judgment, 1984 ICJ 292, ¶87;
Fisheries Jurisdiction (U.K. v. Ice.), at 33; Nuclear Tests (Aus. v. Fra.), ¶46; North Sea, at 46.
99
Arbitration on the Tacna-Arica Question (Chile v. Peru), Vol. II R.I.A.A., 930 (1925).
100
Lake Lanoux, ¶11.
101
Id.
102
Interim Accord, ¶132.
103
Compromis, ¶¶24-26.
104
North Sea, ¶85; Pulp Mills, ¶146.
105
Pulp Mills, ¶154.

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B. RAHAD DID NOT DELIBERATELY CAUSE DAMAGE TO THE KIN CANYON COMPLEX.

Each State Party to the WHC undertakes not to take any deliberate measures that might

damage cultural and natural heritage identified and designated as such.106 This principle of sic

utere tuo ut alienum non laedas (“sic utere”)107 provides that a state must not knowingly allow

activities within its control and jurisdiction to cause injury to the rights of another state.108 This

principle of prevention has its origins in the due diligence required of a state in its territory.109

1. The Kin Canyon Complex did not suffer transboundary damage.

a) The damage to the Complex was not serious or significant.

Transboundary damage suffered by a state must be proven by clear and convincing

evidence, and must be “serious”110 or “significant.”111 Not all situations of damage are unlawful,

especially if it is necessary to meet basic survival or subsistence needs.112 Damage must be

greater than mere nuisance or insignificant harm.113 The structural degradation was only in

remote sections of the Complex making damage to the actual Complex insignificant.114

106
WHC, art. 6(3).
107
Nuclear Weapons, ¶29; Pulp Mills, ¶101.
108
Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 4 [“Corfu”], 22; Trail Smelter
Arbitration (U.S. v. Can.) 3 R.I.A.A. 1905, 1965 (1941) [“Trail Smelter]; Stockholm
Declaration, principle 21.
109
Pulp Mills, ¶101. See also Gabčikovo-Nagymaros, ¶115; XUE, supra note 93, at 163.
110
Trail Smelter, at 1965.
111
In the Arbitration Regarding the Iron Rhine Railway (Belg. v. Neth), 23 R.I.A.A. 35,
¶59 (Perm. Ct. Arb. 2005).
112
Kanchana Wangkeo, Monumental Challenges: The Lawfulness of Destroying Cultural
Heritage During Peacetime, 28 YALE J. OF INT’L L. 1, 270 (2003).
113
J. Barboza, Sixth Report on International Liability for Injurious Consequences Arising
out of Acts not Prohibited by International Law, March 15, 1990, UN Doc. A/CN.4/428, arts. 2(b)
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b) There is no clear and convincing evidence of the damage.

The reliability and probative value of expert evidence must be determined in light of the

independence of the experts proffering the report.115 News reports or photographs must embody

public knowledge to ensure reliability. 116 In practice, the Committee either requests a State to

halt operations if such are viewed as deliberate measures likely to cause damage, 117 or

acknowledges when property has suffered damage.118

The Savali Pipeline was implemented for the specific purpose of meeting the urgent

needs of Rahad’s people. 119 Independent experts did not corroborate the geologists’ report

ordered by President Vhen that allegedly showed structural degradation,120 and photographs of

foreign tourists and local newspaper reports are not reliable on their own. Finally, the Committee

has neither ordered the cessation of the Savali Pipeline nor determined that there has been

damage.121

& (e).
114
Compromis, ¶30.
115
Pulp Mills, ¶¶166-168.
116
United States Diplomatic and Consular Staff in Tehran (U.S.A. v. Iran), Judgment,
1980 I.C.J. Reports 3 [“Tehran”] ¶¶12-13; See Nicaragua, ¶63.
117
World Heritage Committee (WHComm.), Lake Turkana National Parks (Kenya), 35
COM 7B.3 [“Lake Turkana”].
118
WHComm., Dresden Elbe Valley (Germany), 33 COM 7A.26; WHComm., Arabian
Oryx Sanctuary, 31 COM 7B.11 [“Arabian Oryx Sanctuary”].
119
Compromis, ¶24.
120
Id., ¶30.
121
Id., ¶¶25, 32.

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2. Rahad observed due diligence to prevent damage to the Complex.

Due diligence mandates a certain level of vigilance in the enforcement of rules and

measures, including the monitoring of activities undertaken, to safeguard the rights of the other

party.122 Measures should be appropriate and proportional to the degree of risk of transboundary

harm.123 States have a duty to consider alternatives that are less damaging to cultural heritage.124

Aside from notifying Atania of its plans125 and conducting an EIA,126 Rahad had done all

that it could to prevent transboundary damage. It directed ILSA to study the feasibility of the

project, 127 submitted plans to the Committee for review, 128 complied with the Committee’s

decision,129 and conducted operations more than 15 kilometers from the Complex’s Committee-

mandated buffer zone.130 The Savali Pipeline was the only viable option for Rahad after years of

importing water.131

122
Pulp Mills, ¶197.
123
ILC, Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities art. 3, ¶11.
124
See Wangkeo, supra note 112, at 270, in relation to WHC, arts. 4 & 6.
125
Compromis, ¶22.
126
Clarifications, ¶3.
127
Compromis, ¶20.
128
Id., ¶24.
129
Id., ¶26.
130
Id.
131
Id., ¶22.

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3. Rahad observed the precautionary principle.

The inclusion of the Complex in the List of World Heritage in Danger indicates that it is

threatened by serious and specific dangers.132 However, inclusion does not oblige States to halt

operations unless expressly requested by the Committee.133 The precautionary principle states

that the lack of full scientific certainty is not an excuse to postpone the adoption of cost-effective

measures.134

Rahad has pumped waters in accordance with the highest possible standards and

committed to undertake regular studies of the impact of the project. 135 Since 2014, Rahad has

been discussing corrective measures with the Committee to address the potential threats to the

Complex.136

C. RAHAD HAS NO OBLIGATION TO CEASE THE SAVALI PIPELINE OPERATIONS.

The commission of an internationally wrongful act gives rise to an obligation to cease if

the act is continuing.137 Since Rahad has acted consistently with its international obligations,

there is no cause to order cessation.

132
WHC, art. 11(4); Intergovernmental Committee for the Protection of the World
Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World
Heritage Convention (2013) [“Operational Guidelines WHC”], ¶177(b).
133
Lake Turkana. See WHComm., Mt. Nimba Nature Reserve, CONF 002 VIII SOC. See
also WHComm., Concerning Kakadu National Park, Australia, CONF 205 XI.1.
134
Rio Declaration, principle 15.
135
Compromis, ¶33.
136
Clarifications, ¶6.
137
Articles on State Responsibility, art. 30(a); Jurisdictional Immunities of the State (Ger.
v. Ita., Gre. intervening), Judgment, 2012 I.C.J. 99 ¶137.

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1. There is no continuing breach.

A continuing wrongful act is one that has been commenced but has not been completed at

the relevant time.138 Though the effects or consequences of a wrongful act may extend in time,

such does not prove that an act has a continuing character.139 Rahad had begun discussions with

the Committee on a program of corrective measures,140 and has continued to extract water from

the Aquifer with due diligence.141 Thus, there is no ongoing breach.

2. Assuming Rahad has violated any obligations, such are only procedural in
nature.

In Pulp Mills, the Court found that the failure to comply with certain procedural

obligations, such as the duty to notify and negotiate, did not justify cessation of the mill as these

obligations were merely procedural in nature.142 Cessation is not an appropriate remedy so long

as the project does not violate substantive obligations.143 Assuming Rahad has failed to comply

with its procedural obligations, this would not justify cessation.

138
ILC, Draft articles on Articles on State Responsibility, with commentaries, II.2 YILC
31 (2001), at 60, art. 14, ¶5.
139
Id., ¶6.
140
Clarifications, ¶3.
141
Compromis, ¶26.
142
Pulp Mills, ¶¶267-269.
143
Id., ¶275.

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III. RAHAD IS ENTITLED TO RETAIN POSSESSION OF THE RUBY SIPAR.
A. RAHAD IS THE LAWFUL POSSESOR OF THE RUBY SIPAR.

Cultural property belongs to the global community and should retained by countries with

more capability to protect it.144 Rahad has vowed to treat the Ruby Sipar with the “veneration

and respect it deserves.”145

1. The Ruby Sipar forms part of the Common Heritage of Mankind.

The Common Heritage of Mankind encompasses the cultural property of all States.146

International law acknowledges the significance of cultural objects because of its great

importance to humanity.147 Property of cultural significance is excepted even from the traditional

bounds of acceptable behavior in times of war because the same is “the property of mankind at

large [and belongs] to the common interests of the species as a whole.”148 States are obliged to

provide reasonable access as part of its responsibility to preserve and protect cultural property

within its territory in the interests of all humankind.149

144
Carol A. Roehrenbeck, Repatriation of Cultural Property- Who Owns the Past? An
Introduction to Approaches and to Selected Statutory Instruments, 38 INT. J. LEG. INF. 189, 190
(2010).
145
Compromis, ¶52.
146
Craig Forrest, Cultural Heritage as the Common Heritage of Humankind: A Critical
Re-evaluation, 40 COMP. L.J. S. AFR. 124, 128 (2007).
147
United Nations Educational, Scientific, and Cultural Organization (UNESCO),
Declaration concerning the Intentional Destruction of Cultural Heritage (2003), principle 1. See
Alan Marchisotto, The Protection of Art in Transnational Law, 7 VAND. J. TRANSNAT’L L. 689,
717 (1974).
148
The Marquis de Somerueles: Vice-Admiralty Court of Halifax, Nova Scotia Stewart's
Vice-Admiralty Reports 482, 483 (1813).
149
Marchisotto, supra note 147, at 717.

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The Ruby Sipar is a ceremonial shield raised by the legendary Teppa, a warrior of the

Clan Kin.150 Members of the Sisters of Sun wear miniature replicas of the Sipar as a symbol of

their loyalty to the Sisters and the founder of the order.151 It is central to the history of the people

of the Nomad Coast.

2. Atania’s treatment of the Ruby Sipar is an abuse of its right to own the Ruby
Sipar under cultural property law.

The abuse of rights doctrine prohibits the exercise of a right for a purpose different from

that for which the right had been created, and as a result, injury is caused.152 There need not be

any sinister intention so that the exercise might amount to abuse.153 The right of ownership of

cultural property does not extend to the right to destroy its symbolic significance. 154 For instance,

the UN General Assembly has denounced the Taliban’s destruction of the Bamiyan Buddhas.155

Atania ordered the destruction of all Sipar replicas.156 It turned the Ruby Sipar into a

symbol of sedition and banned its public display in the Complex Cultural Center.157

150
Compromis, ¶8.
151
Id., ¶9.
152
HERSCH LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE PCIJ
(1934) 164; LASSA OPPENHEIM, INTERNATIONAL LAW: A TREATISE (8th Ed., 1955) 345; MARION
PANIZZON, GOOD FAITH IN THE JURISPRUDENCE OF THE WTO 27 (2006); Alexandre Kiss, Abuse
of Rights, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 4 (Rudolf Bernhardted, 1992);
Beyeler v. Italy, European Court of Human Rights (ECtHR), Application No. 33202/96,
Judgment (2000) .
153
HERSCH LAUTERPACHT, THE FUNCTION OF THE LAW IN THE INTERNATIONAL
COMMUNITY 286-87 (1966).
154
Wangkeo, supra note 112, at 192.
155
Id., at 248.
156
Compromis, ¶43.
157
Id., ¶¶43-44, 51.
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B. RAHAD HAS NO CUSTOMARY OBLIGATION TO RETURN THE RUBY SIPAR.

Any practice or belief in the return of cultural property lacks clear rules defining the

bounds of the customary norm alleged to exist.158 The prevalent view is that the world is an

international museum for cultural property.159

1. The practice of States of returning actual possession of cultural property has


been limited and inconsistent.

The practice of States that trade and transfer of cultural property has been neither uniform

nor consistent. 160 Greece has failed to secure the Elgin Marbles from Britain despite their

repeated demands.161 France may have recognized Nigeria’s ownership over the Sokoto and Nok

statuettes, but the former still retains possession.162 Even General Assembly resolutions which

address cultural property merely encourage States to return stolen property.163

2. The limited cases of restitution have not been accompanied by opinio juris.

Acts motivated by courtesy, convenience, or tradition, are not evidence of a rule of

custom.164 While possession of the Euphronios Krater was returned to Italy, it was subject to the

158
See Maria Granovsky, A Permanent Resolution Mechanism of Cultural Property
Disputes, 8 PEPP. DISP. RESOL. L.J. 25 (2007).
159
Art Inst. of Chicago et al., Declaration on the Importance and Value of Universal
Museums, reprinted in James Cuno, The Object of Art Museums, in WHOSE MUSE?: ART
MUSEUMS AND THE PUBLIC TRUST 49, 52 (James Cuno ed., 2004).
160
Roehrenbeck, supra note 144, at 189.
161
JOHN HENRY MERRYMAN, THINKING ABOUT THE ELGIN MARBLES 25 (2009).
162
Fed. Rep. of Nigeria v. Alain de Montbrison, Paris Ct. of App., Judgment, Apr. 5,
2004. This was upheld by the Court of Cassation in a judgment dated Sept. 20, 2006, J.-M.
Schmitt, Journal des Arts, No. 256, 30 March-12 April 2007, at 27
163
UNSC Res. 1483 (2003); UNGA Res. 70/76 (2015); UNGA Res. 61/52 (2007);
UNGA Res. 50/56 (1995); UNGA Res. 34/64 (1979).
164
North Sea, ¶77.
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condition of continued exhibition. 165 Similarly, Italy returned over 12,000 pre-Columbian

artifacts to Ecuador.166 The Kohinoor Diamond taken from India remains part of the British

Crown Jewels and is exhibited in the Tower of London.167

C. RAHAD HAS NO OBLIGATION TO RETURN THE RUBY SIPAR BY VIRTUE OF THE 1970
UNESCO CONVENTION.

1. Rahad has not violated the 1970 UNESCO Convention.

a) When the Ruby Sipar was taken, the 1970 Convention was not in force with
respect to Rahad.

When a State has consented to a treaty, it begins to be bound on the date the treaty enters

into force as provided by the treaty itself.168 In The Federal Republic of Nigeria v. Alain de

Montbrisson, the claim for the cultural property’s return was denied because the 1970 UNESCO

Convention had not yet come into force for France.169 The 1970 UNESCO Convention enters

into force only three months after the deposit of a State’s instrument of ratification.170 Thus,

165
Aaron Briggs, Consequences of the Met-Italy Accord for the International Restitution
of Cultural Property, 7 CHI. J. INT’L L. 623 (2007).
166
ALPER TASDELEN, THE RETURN OF CULTURAL ARTEFACTS: HARD AND SOFT LAW
Approaches 148 (2016). See, e.g., US v. An Antique Platter of Gold, 184 F. 3d 131 (2d Cir.
1999), aff’g 991 F. Supp. 222 (S.D.N.Y. 1997). For more examples, see, generally, Marilyn
Phelan, Cultural Property, 32 INT’L L. 448, 450 (1998).
167
Joseph Kay, The Disputed Historical Artefacts, 4 INT. J. OF ADV. RES. 207, 208
(2016).
168
VCLT, art. 18(b). See Articles on State Responsibility, art. 13; International Centre for
Settlement of Investment Disputes (ICSID), M.C.I. Power Group L.C. and New Turbine, Inc. v.
Republic of Ecuador, ICSID Case No. ARB/03/6, (2007) [“M.C.I. Power”] ¶116.
169
Supra note 162, with accompanying text.
170
United Nations Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property, November 17, 1970 11806
UNTS 883 [hereinafter “1970 UNESCO Convention”] ¶21; UNESCO, Operational Guidelines
for the Implementation of the Convention on the Means of Prohibiting and Preventing the Illicit
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cultural property that had been illicitly transported across the border prior to the 1970 UNESCO

Convention’s entry into force is not covered by the obligation to return.171

Since Rahad deposited its instrument of ratification on 30 September 2014, 172 the

Convention was inapplicable to Rahad’s actions from 30 September to 31 December 2014.173

Since the Ruby Sipar was taken before 3 October 2014,174 the treaty obligations do not apply.

b) In any case, the Ruby Sipar was not properly designated as Atania’s cultural
property.

Under the 1970 UNESCO Convention, cultural property must be “specifically designated”

as such by a State.175 Unlike other cultural property conventions, the 1970 UNESCO Convention

is not self-executing. 176 For this purpose, States are required to enact specific domestic

legislation.177 The declaration made with the Director-General of UNESCO is insufficient as it is

neither an act of the legislature nor specific. 178 The declaration is so broad and could cover

virtually any object more than 100 years old.

Import, Export and Transfer of Ownership of Cultural Property [hereinafter, “Operational


Guidelines Cultural Property”] ¶101.
171
1970 UNESCO Convention, art. 7(b)(ii).
172
Clarifications, ¶3.
173
Id.
174
Compromis, ¶50.
175
1970 UNESCO Convention, art. 1. See John Henry Merryman, Two Ways of Thinking
About Cultural Property, 80 AM. J. OF INT’L L. 834, 842-43 (1986).
176
Roehrenbeck, supra note 144, at 190-200.
177
PERNILLE ASKERUD & ETIENNE CLEMENT, PREVENTING THE ILLICIT TRAFFIC IN
CULTURAL PROPERTY: A RESOURCE HANDBOOK FOR THE IMPLEMENTATION OF THE 1970
UNESCO CONVENTION 7 (1997).
178
Compromis, ¶60.
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c) Moreover, the acts of Carla Dugo are not attributable to Rahad.

An act may be attributable to a State if it adopts the actions of a private person.179 In

Tehran, the adoption of the acts of the militants “[did] not alter the initially independent and

unofficial character” of the acts.180 Taking a position that can be interpreted as endorsement does

not amount to adoption.181

Carla Dugo took the Ruby Sipar and brought it to Rahad out of her desire to ensure its

exhibition and protection.182 Rahad retained the Sipar to protect it, and did not endorse Carla

Dugo’s actions.

2. Rahad did not defeat the object and purpose of the 1970 UNESCO Convention.

Rahad acknowledges that States are obliged to refrain from acts which would defeat the

object and purpose of the treaty from the moment they sign it.183 This obligation of good faith

requires states to refrain from actions that render the enforcement of the treaty, or the

performance by parties of the provisions stipulated, impossible.184

179
Articles on State Responsibility, art. 11.
180
Tehran, ¶¶29-30.
181
ILC, supra note 138, at 53 (1961).
182
Compromis, ¶50.
183
VCLT, art. 18(b).
184
See GAOR, Sixty-second Session, Supplement No. 10 (A/62/10), at 67; Opel Austria
v. Council of the European Union, Judgment of the Court of First Instance (Fourth Chamber),
Jan. 22, 1997, Case T-115/94.

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a) The object and purpose of the 1970 UNESCO Convention is the protection of
designated cultural property.

The interim obligation, which requires states to refrain from violating the essential

provisions of a treaty constituting its raison d’être,185 can only be determined in reference to the

text and particular nature of the treaty.186 Recourse may be had to the preamble of a treaty in

determining the object and purpose.187 The preamble of the 1970 UNESCO Convention provides

that it is incumbent on every state to protect the cultural property found in its territory against the

dangers of theft, clandestine excavation, and illicit export.188

b) Rahad has not defeated the object and purpose of the 1970 UNESCO
Convention.

The only way a state could defeat the object and purpose of a treaty that demands

restitution of cultural property would be to destroy the property making return materially

impossible.189 Complying with the object and purpose of a treaty does not involve a retroactive

application of the specific obligations found in it.190 To require the Ruby Sipar’s return would be

to impose the obligation found in Article 7(b)(ii) of the 1970 UNESCO Convention.

185
Alain Pellet, Note by the Special Rapporteur on draft guideline 3.1.5 (Definition of the
object and purpose of the treaty) ¶1, Jun. 21, 2006, A/CN.4/572; Isabelle Buffard & Karl
Zemanek, The “Object and Purpose” of a Treaty: An Enigma?, 3 AUSTRIA REV. INT’L & EUR.
L. 311, 343 (1998).
186
Pellet, supra note 185, ¶5.
187
Rights of United States Nationals in Morocco (Fra. v. U.S.A.), Judgment, 1952 I.C.J.
176, 196; Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment, 1994 I.C.J. 6, ¶52.
188
1970 UNESCO Convention, prmb. See Operational Guidelines Cultural Property, at 9.
189
James Garner, Draft Convention on the Law of Treaties, 29 AM. J. INT’L. L. SUPP. 653,
781-82 (1935).
190
M.C.I. Power, ¶116.

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3. In any case, the return of the Ruby Sipar is not the proper means of reparation.

Restitution must not take a form that is out of proportion to the benefit derived from the

same.191 The rights of a third party may validly preclude a claim for restitution.192 The Kin are

indigenous people193 who have a right to manifestations of their culture194 to the extent that

States must provide them with the means by which they can recover their cultural property.195

The loss of a cultural object’s place of prominence in the community causes immeasurable

damage to that community.196 The Ruby Sipar is culturally significant to the Kin and must

remain in their possession.

191
Articles on State Responsibility, art. 35.
192
Forests of Central Rhodope (Gre. v. Bulg.), 3 R.I.A.A. 1405, cited in Conor
McCarthy, REPARATIONS AND VICTIM SUPPORT IN THE INTERNATIONAL CRIMINAL COURT (2012)
161.
193
José Martinez Cobo, Study of the Problem of Discrimination Against Indigenous
Populations, UN Doc. E/CN.4/Sub.2/1986/7Add.4, ¶379.
194
See Agudas Chasidei Chabad of the United States v. The Russian Federation, D.C.
Circuit Court, 528 F.3d 934, 943 (D.C. Cir. 2008).
195
Inter-American Court of Human Rights (IACtHR), Saramaka People v.
Suriname, Judgment, Aug. 12, 2008 (Interpretation of the Judgment on Preliminary Objections,
Merits, Reparations and Costs) ¶62. See UNGA Res. 61/295, UN Declaration on the Rights of
Indigenous Peoples (2007), art. 11.
196
Lyndel V. Prott, The International Movement of Cultural Objects, 12 INT’L J.
CULTURAL PROP. 225 (2005).

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IV. ATANIA MUST COMPENSATE RAHAD FOR ALL DIRECT AND INDIRECT EXPENSES INCURRED
AND ACCRUING AS A RESULT OF ACCEPTING MEMBERS OF CLAN KIN FLEEING FROM
ATANIA.
A. ATANIA OWES COMPENSATION AS A MEANS OF REPARATION FOR VIOLATING THE
HUMAN RIGHTS OF THE KIN.

Atania is obligated to take steps to ensure the realization of certain rights, such as the

right to be free from discrimination,197 an adequate standard of living,198 and cultural life199 to all

its citizens. The implementation of the Water Resource Allocation Program (“WRAP”) Act

discriminated against the Kin by depriving them of access to food and water, impelling the latter

to flee Atania.

1. Rahad has standing with respect to the human rights of the Kin.

a) Rahad has standing on the basis of erga omnes partes.

The protection of human rights is an erga omnes obligation and all States have a legal

interest in their enforcement.200 Further, in the 2012 Belgium v. Senegal case, this Court, granted

197
International Covenant on Civil and Political Rights, Mar. 23, 19776, 999 U.N.T.S.
171 [“ICCPR”] art. 1(2); International Covenant on Economic, Social and Cultural Rights, Jan. 3,
1976, 993 U.N.T.S. 3 [“ICESCR”] art. 1(2); Committee on Economic, Social and Cultural Rights
(CESCR), General Comment No. 15: The Right to Water (Jan. 20, 2003) [“General Comment
15”], ¶¶1, 3.
198
ICESCR, art. 11(1); General Comment 15, ¶¶3, 6; UNGA Res. 217 A(III), Universal
Declaration of Human Rights (UDHR), (1948), art. 25.
199
ICESCR, art. 12(1); General Comment 15, ¶¶3, 6.
200
Barcelona Traction, Light and Power Company, Limited (Belg. v. Spa.), 1970 I.C.J. 3
[“Barcelona Traction”], ¶¶33-34. See Responsibilities and Obligations of States Parties
Sponsoring Persons and Entities With Respect to Activities on the Area, Advisory Opinion, 2011
ITLOS 10, 59 (Feb. 1) [“Activities in the Area”], ¶180.

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standing to Belgium under a claim of erga omnes partes.201 The nature of the obligations owed

permits Rahad to bring a claim against Atania as State parties to the ICCPR and the ICESCR.

b) Rahad is not barred by the doctrine of clean hands from invoking the
responsibility of Atania.

A state guilty of unlawful conduct that enjoys a nexus with the subject of its claim is

generally precluded by the clean hands doctrine from invoking the responsibility of the other

state. 202 International tribunals have frequently declined to consider the application of the

doctrine. 203

Rahad has neither breached a reciprocal obligation204 nor a causal obligation.205 Rahad’s

human rights obligations are neither reciprocal nor causal, as they are owed to the international

community as a whole. 206 In any case, the migration of the Kin was caused by the wrongful acts

of Atania, in light of the environmental conditions.207

201
Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.),
Judgment, 2012 I.C.J. 422 [“Obligation to Prosecute or Extradite”] ¶70.
202
See Nicaragua (Schwebel, J., dissenting), at 272; Eastern Greenland (Anzilotti, J.,
dissenting), at 95; Diversion of Water from the Meuse (Neth. V. Belg.), 1937 P.C.I.J. (ser. A/B)
No. 70 (Jun. 28) [“River Meuse”], (Hudson, J., separate), at 78.
203
Maritime Boundary Arbitration (Guy. v. Sur.) 47 I.L.M. 166, ¶418; Yukos Universal
Limited (Isle of Man) v Russian Federation, PCA Case No 227, [1363] (2014).
204
See Avena and Other Mexican Nationals (Mex. v. U.S.A.), Judgment, 2004 I.C.J. 12
[“Avena”] ¶47.
205
See H. G. Venable Case v. United Mexican States (1927); The Angola Case, Award I
(1928), 2 R.I.A.A., 1011, 1031; BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS (1987), pp. 149-55.
206
Barcelona Traction, ¶¶33-34. See also Avena, ¶47.
207
Compromis, ¶¶1, 19.

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2. Atania has discriminated against the Kin.

All persons are entitled without any discrimination to equal protection before the law.208

This right includes protection against indirect discrimination, which occurs when State action is

not apparently discriminatory, but is discriminatory in effect.209 Some policies can be manifestly

and facially unreasonable such that no alleged legitimate aim can justify them.210

The WRAP Act specifically targets a group of people whose way of life it does not

accommodate, despite the fact that the latter has a long history of subsistence farming.211 The

application process is more burdensome to the Kin who are known to avoid modern

technology.212 Moreover, the exemption under the law was effectively available only to large

profit-generating farms.213

3. Atania has deprived the Kin of their right to an adequate standard of living.

Every person has a right to an adequate standard of living.214 As part of this right, the

right to water must be guaranteed as an essential condition for continued human existence.215

208
ICCPR, art. 26.
209
CESCR, General Comment No. 16: Art. 3: The Equal Right of Men and Women to
the Enjoyment of All Economic, Social and Cultural Rights (Aug. 11, 2005). See UNGA Res.
2106 (XX), International Convention on the Elimination of All Forms of Racial Discrimination
(1965) art. 1(1); UNGA Res. 34/180, Convention on the Elimination of All Forms of
Discrimination against Women, (1979) art. 1; UNGA Res. 64/292: The human right to water
and sanitation (2010).
210
South West Africa (Eth. v. S. Afr., Lib. v. S. Afr.), Judgment, 1966 I.C.J. 250
(Tanaka, J. dissenting), at 310.
211
Compromis, ¶11.
212
Id.
213
Id., ¶¶35-37.
214
ICESCR, art. 11. See UNGA Resolution 64/292.

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According to the Human Rights Committee, States must ensure sustainable access to water

resources for agriculture to realize the right to adequate food.216 Particular attention should be

given to ensuring that disadvantaged and marginalized farmers have equitable access to water.217

Disconnecting water supply for lack of means to pay violates the ICESCR.218

The Kin are subsistence farmers who depend on water for survival.219 In 2013, the

WRAP Act was amended to disconnect their state-controlled water supply. 220 Reports of

international organizations confirmed that the lack of access to water has led to various food-

deprivation related illnesses.221

4. Atania has deprived the Kin of their right to cultural life.

Persons belonging to ethnic minorities should not be denied the right to enjoy their own

culture.222 This right is violated when a minority’s way of life in relation to the use of natural

215
General Comment 15, ¶3. See UN Commission on Sustainable Development,
Comprehensive Assessment of the Freshwater Resources of the World, Report Of The Secretary
General (1997), at 39.
216
General Comment 15, ¶7. See CESCR, General Comment 12: The Right to Adequate
Food (May 12, 1999).
217
Id.
218
Mazibuko and Others v. City of Johannesburg and Others, Constitutional Ct. of S. Afr.
(CCT 39/09), Oct. 8, 2009, ¶¶10-17;. See also European Roma Rights Center (ERRC), The
Protection of Roma Rights in Serbia and Montenegro, prepared in association with the UN
Office of the High Commissioner for Human Rights (2003), at 45.
219
Compromis, ¶11.
220
Id., ¶38.
221
Id., ¶¶39-40.
222
ICCPR, art. 27.

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resources is impaired.223 The Kin are culturally and politically isolated from modern society, and

live off the land.224 The WRAP Act prevented the Kin from engaging in traditional farming, their

way of life.225

5. Rahad is entitled to compensation because it is interested in the protection of the


rights of the Kin.

The commission of a wrongful act entails a state’s responsibility and gives rise to the

obligation to make good the damage it has caused,226 even if the right breached belongs to a

party other than a state.227 In Belgium v. Senegal, the Court found a breach of an erga omnes

partes obligation and granted Belgium’s prayer for reparations.228 Because human rights are

obligations erga omnes, and rights under the ICCPR and ICESCR are erga omnes partes,

Atania’s failure to comply with its obligations violated Rahad’s interests by compelling it to

spend more than US$945,000,000 to ensure the human rights of the Kin.229

223
CCPR, General Comment No. 23: Rights of Minorities (Apr. 8, 1994), ¶6.2. See UN
Human Rights Committee (UNHRC), Ominayak v. Canada, Comm. No. 167/1894 (1990);
UNHRC, Mahuika v. New Zealand, Comm. No. 547/1993, ¶9.5 (2000); UNHRC, Länsman v.
Finland, Comm. No. 511/1992, ¶9.6 (2000).
224
Compromis, ¶11.
225
Id., ¶40-41.
226
Factory at Chorzów (Claim for Indemnity) (Ger. v. Pol.), Merits, 1928 P.C.I.J. (ser.
A), No. 17 (Jul. 26), 47; Articles of State Responsibility, art. 34; Spanish Zone of Morocco
Claims, II R.I.A.A. 615, 641 (1924).
227
Articles of State Responsibility, art. 48. See Activities in the Area, ¶180.
228
Obligation to Prosecute or Extradite, ¶131.
229
Compromis, ¶57.

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B. ATANIA OWES COMPENSATION BY VIRTUE OF A QUASI-CONTRACT.

A quasi-contract is an obligation in law created absent an agreement, due to a situation of

unjust enrichment.230 Though the Kin are Atanian nationals,231 Rahad has protected the Kin as

refugees232 or as migrants.233 Since Rahad has performed Atania’s obligations to protect the

rights of the Kin, Rahad has a right to compensation.

1. Atania caused a mass influx of Kin migrants into Rahad.

By definition, a refugee is one who, owing to a “well-founded fear of being persecuted

for reasons of […] membership of a particular social group or opinion, is outside the country of

his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection

of that country.” 234 Further, the doctrine of complementary protection recognizes that the

230
Arthur Corbin, Quasi Contractual Obligation, 21 YALE L.J. 533 (1912). See also
WILLIAM CLARK, HANDBOOK ON THE LAW OF CONTRACTS (4th Ed., 1939).
231
Compromis, ¶11.
232
Convention Relating to the Status of Refugees, April 22, 1954, 189 U.N.T.S. 137
[“Refugee Convention”] arts. 20-23; Compromis, ¶48.
233
Katie Sykes, Hunger Without Frontiers: The Right to Food and State Obligations to
MIgrants, in the INTERNATIONAL LAW OF DISASTER RELIEF (David D. Caron, Michael J. Kelly,
Anastasia Telesetsky, Eds.) 191; United States Immigration and Nationality Act, 8 CFR ¶208.16-
208.17 (1952); New Zealand Immigration Act 2009, ¶130-31; Council Directive 2004/83/EC of
Apr. 29, 2004 on Minimum Standards for the Qualification and Status of Third Country
Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International
Protection and the Content of the Protection Granted (2004) OJ L304/12, arts. 2(e), 15; Canada
Immigration and Refugee Protection Act, SC 2001, c27, §97; Compromis, ¶49.
234
Refugee Convention, art. 1 & the Protocol Relating to the Status of Refugees, Jan. 31,
1967, 19 U.S.T. 6223, 606 U.N.T.S. 257, art. 1; See Immigration and Naturalization Service v.
Cardozo-Fonsetta (1987), 467 US 407; Immigration and Naturalization Service v. Stevic (1984),
467 US 407; R v. Secretary of State for the Home Department, Ex parte Sivakumaran and
Conjoined Appeals (UN High Commissioner for Refugees intervening), (1988) 1 All E.R. 193.

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principle of non-refoulement may apply to persons who do not qualify for refugee status.235

Regardless of the their status, a state is bound to provide complementary protection to persons

within its territory and jurisdiction.236

The Kin have been persecuted through systematic and deliberate mass arrests on the basis

of their exercise of free speech.237 After the protests, there was a sweep across the country for

those suspected of the same. To date, hundreds remain in prison,238 with no end to detention in

sight.239 Approximately 800,000 Kin have crossed the border and are currently in Rahad’s

territory.240

2. Rahad was compelled to fulfill Atania’s human rights obligations.

Since states have a primary duty to provide for the human rights of their nationals,

shifting the cost of caring for its own citizens creates a right of action for compensation.241 In

practice, Germany compensated countries that housed Jewish refugees fleeing from the Third

Reich.242 Rahad has spent a considerable amount relocating and integrating the Kin and repairing

235
Immigration and Protection Tribunal New Zealand, AN (Malaysia) [2016] NZIPT
800888; SYKES, supra note 233, at 190-207.
236
ICCPR, art. 2; ICESCR, art. 2. See SYKES, supra note 233, at 193.
237
Compromis, ¶¶41-44.
238
Id., ¶¶45-46.
239
Clarifications, ¶7.
240
Compromis, ¶49.
241
ILA, Declaration of Principles of International Law on Compensation to Refugees
(1992), principle 1. See Luke Lee, Declaration of Principles of International Law on
Compensation to Refugees: Its Significance and Implications, 6 J. OF REFUGEE. STUD. 1, 66
(1993).
242
Id., at 67.

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national infrastructure.243 Rahad even built three temporary camps to house the Kin, while they

applied for refugee status.244

C. ATANIA OWES COMPENSATION FOR VIOLATING THE SIC UTERE PRINCIPLE IN RELATION
TO THE KIN MIGRANTS.

States have an obligation not to knowingly allow their territory to be used in a manner

injurious to the rights of another.245 They must use all means at their disposal to avoid activities

within their territory that cause damage to another state.246 This rule also applies where a state

adopts domestic policy that leads to the mass migration of its nationals to another state.247 To

claim compensation for damage, a clear causal link between the act and the damage caused must

be shown.248 Although there may be other events occurring in the chain, all that is required is

that “loss can be clearly and unmistakably and definitely traced” to the other state’s acts.249

As a result of the influx of Kin migrants fleeing persecution, 150,000 Rahadi families had

reduced access to clean water, and 85% of the country experienced sporadic power outages.250

243
Compromis, ¶54.
244
See UNHRC, A v. Australia, Comm. No. 560/1993, ¶9.2 (1997); UNHRC, van
Alphen v. Netherlands, Comm. No. 305/1988, ¶5.8 (1990); UNHRC, C v. Australia, Comm. No.
900/99 ¶9 (2002); UNHRC, D and E v. Australia, Comm. No. 1050/2002, ¶7.2 (2006).
245
Nuclear Weapons, ¶29; Pulp Mills, ¶101.
246
Pulp Mills, ¶101. See also Gabčikovo-Nagymaros, ¶115.
247
Hannah R. Garry, The Right to Compensation and Refugee Flows: A ‘Preventative
Mechanism’ in International Law?, 10 INT’L J. OF REFUGEE L 97, 105-06 (1998). See Robert
Yewdall Jennings, Some International Law Aspects of the Refugee Question, in 20 BRIT. Y.B.
INT'L L. 98 (1939).
248
ILC, supra note 138, at 69, ¶7.
249
Administrative Decision No. 11, United States-German Mixed Claims Commission,
Nov. 1, 1923, II R.I.A.A. 29-30.
250
Compromis, ¶53.
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Unable to adjust to Rahadi life, the Kin migrants were also reported to be involved in petty crime

and vagrancy.251 Almost 10% of Rahad’s GDP goes to expenses accruing from the costs of the

Kin refugee crisis.252 Atania must compensate Rahad for the economic damage it has suffered.

251
Id., ¶54.
252
Id., ¶¶3, 57.

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PRAYER FOR RELIEF

For the foregoing reasons, Rahad requests the Court to declare that:

Rahad’s extraction of water from the Aquifer does not violate Rahad’s international legal

obligations governing the proper use of shared resources;

Rahad’s Savali Pipeline operations do not violate any legal obligations relating to the Kin

Canyon Complex;

Rahad is entitled to retain possession of the Ruby Sipar; and

Atania must compensate Rahad for all direct and indirect expenses incurred and accruing

as a result of accepting members of Clan Kin fleeing from Atania.

Respectfully submitted,

Agents of Rahad

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