Team 1

THE FOURTH ANNUAL TEEHANKEE CENTER FOR THE RULE OF LAW

JUSTITIA MOOT COURT COMPETITION 2018

INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE HARVEST AND PROCESSING OF PURAHUACA

AND THE DESTRUCTION OF THE LUSEWA RAINFOREST

THE REPUBLIC OF AYASA

(APPLICANT)

V.

THE CONFEDERATION OF RAMIGIAN NATIONS

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

1
 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................2

INDEX OF AUTHORITIES ...........................................................................................................4

STATEMENT OF JURISDICTION..............................................................................................11

QUESTIONS PRESENTED..........................................................................................................12

STATEMENT OF FACTS..................................................................................................................13

SUMMARY OF PLEADINGS......................................................................................................17

MAIN PLEADINGS.....................................................................................................................18

I. RAMIGO IS LIABLE FOR THE WORSENING OF THE LIMARA OUTBREAK.........18

A. THE WORSENING OF THE OUTBREAK IS ATTRIBUTABLE TO RAMIGO............18

B. RAMIGO, AS A CENTRAL GOVERNMENT, IS LIABLE FOR ITS AUTONOMOUS REGIONS SUCH AS

SANAGU......................................................................................................................................19

C. RAMIGO CONDONED THE ACTS OF OMELOI TRIBESMEN......................................................20

D. RAMIGO VIOLATED ITS INTERNATIONAL OBLIGATION..........................................................21

E. RAMIGO’S FAILURE TO COMPLY WITH ITS OBLIGATIONS IS NOT JUSTIFIED UNDER

INTERNATIONAL LAW..................................................................................................................23

II. RAMIGO VIOLATED ENVIRONMENTAL LAW BY BURNING THE BORDER

TREES........................................................................................................................................25

A. RAMIGO VIOLATED ITS DUTY NOT TO CAUSE TRANSBOUNDARY HARM...............................25

B. RAMIGO HAS FAILED TO OBSERVE ‘DUE DILIGENCE’..........................................................26

C. RAMIGO VIOLATED THE PRECAUTIONARY PRINCIPLE...........................................................27

2
 D. RAMIGO VIOLATED ITS DUTY TO PROTECT AND PREVENT DESTRUCTION OF A UNESCO

WORLD HERITAGE SITE..............................................................................................................27

III. THE USE OF THE PLANT BY THE AYASANS IS NOT A VIOLATION OF THE

INDIGENOUS PEOPLE’S RIGHT...........................................................................................28

A. AYASA AND RAMIGO HAS PERMANENT SOVEREIGNTY OVER THEIR

NATURAL RESOURCES.........................................................................................................28

B. AYASA’S WRONGFULNESS IS PRECLUDED BY NECESSITY..................................38

IV. AYASA RIGHTFULLY ACQUIRED INTELLECTUAL PROPERTY RIGHTS OVER THE PLANT..........41

1. AYASA MET ALL THE CRITERIA OF PATENTABILITY.............................................................41

A. THE DISCOVERY IS NEW.......................................................................................................41

B. THE INVENTION IS NOT OBVIOUS.........................................................................................42

C. IT SATISFIES THE UTILITY OR USEFULENESS REQUIREMENT.................................................43

2. THE PATENT WAS GRANTED IN THE SITUATION OF NATIONAL EMERGENCY.........................43

3. WHAT IS BEING PATENTED IS THE CHEMICAL COMPOSITION................................................46

4. Similarly, the patent issued is valid and no biopiracy was committed................................47

PRAYER FOR RELIEF.......................................................................................................................49

INDEX OF AUTHORITIES

3
 ARTICLES

A Gupta,‖ Patent Rights on Pharmaceutical Products and Affordable Drugs, 2004 2 buff. Intell.
Prop. L.j. 127………………………………………………………………………………..45

Application of the Convention on the Prevention and Punishment of the Crime of Geno- cide, op.
cit., f 386. ………………………………………..………………………………………….19

Árnadóttir, Termination of Maritime Boundaries Due to a Fundamental Change of Circumstances

Utrecht Journal of International and European Law, vol.32,
2016…………………………………………………..…………………………………… 36

Brown, Michael F. (2005). "Heritage Trouble: Recent Work on the Protection of Intangible
Cultural Property" …………………………………………………….……………….28

Carl von Clausewitz, On War, edited and translated by Michael Howard and Peter Paret
(Princeton, N.J.: Princeton University Press, 1976). ……………………………………..24

Crawford, International Law Commission’s Articles On State Responsibility: Introduction, Text

And Commentaries (2002), 183 ………………………………… ………………………38

David V. Radack, Injunctions in Patent Infringement Cases,JOM 49 (12) (1997), p.

56………………………………………..…………………………………………………47

Emily Marden, The Neem Tree Patent: International Conflict over the Commodification of Life,
22 B.C. INT’L & COMP. L. REV. 279, 280 (1999). …………………………………….47

European Journal of International Law, Volume 26, Issue 2, 1 May 2015, Pages 417–
443,https://doi.org/10.1093/ejil/chv020………………………………………..…………33

Felicia Maxim, Attribution of Conduct to a State Responsibiliy: Element of the International

Responsibility of the State For Internationally Wrongful Acts, p. 1087………………….19

Inter-Agency, Inter-agency Field Manual on Reproductive Health in Humanitarian Settings,

2010………………………………………..……………………..………………………...35

International Health Regulations, 2005. …………………………………………………..35

4
James Crawford, The international Law Commission’s Articles on States Responsibility,
Introduction, text and Commentaries, (Cambridge University Press 2002), p.97. ………….….19

J.H. Reichman, ―Universal Minimum Standards of Intellectual Property Protection under the
TRIPS Component of the WTO Agreement‖, 1995, 29 INT‘L L. 345 ………………………….43

John G. Mills,‖ The Developing Standard for Irreparable Harm InPreliminary Injunctions to
Prevent Patent Infringement‖ 1999 ,81 J. Pat. & Trademark Off. Soc'y
51……………………………………………..……………………………………………..…..47

Joshua Sarnoff a: Abolishing the Doctrine of Equivalents and Claiming the Future after
Festo………………………………………..……………………………………..……………..43

K. Yu Peter, The Objectives And Principles Of The TRIPS Agreement……………………...45

Kurin, Richard (1 May 2004). "Safeguarding Intangible Cultural Heritage in the 2003 UNESCO
Convention: a critical appraisal" …………………………………………………….……27

Leanne M. Fecteau, The Ayahuasca Patent Revocation: Raising Questions About Current U.S.
Patent Policy, 21 B.C. THIRD WORLD L.J. 69, 76 (2001). …………………………………..43

Lorenza B. Fontana and Jean Grugel, “The Politics of Indigenous Participation Through ‘‘Free
Prior Informed Consent”: Reflections from the Bolivian Case” (2016) 77 World Development
249-261 .........................................................................................................................................31

L L. Hicks & J R. Holbein, ―Convergence of National Intellectual Property Norms in

International Trading Agreements ………………………………………………….…………...42

M.A. Cunningham, ―Preliminary Injunctive Relief In Patent Litigation, PTC Research

Foundations of the Franklin Pierce Law IDEA: The Journal of Law and Technology…………47

Minority Rights Group International, Taking diversity seriously: minorities and political
participation in Kenya, 28 January 2013……………………………………………….………32

M S. Green et al, ̳When is an Epidemic an Epidemic?‘2002 IMAJ Vol 4 ……………………..37

Nicholas Ashford, et. al., Wingspread Statement on the Precautionary Principle, Wᴏʀʟᴅ Hᴇᴀʟᴛʜ
Oʀɢᴀɴɪᴢᴀᴛɪᴏɴ 1 (1998) ………………………………………………………………………...27

Panel Report, Canada—Patent Protection of Pharmaceutical Products, WT/DS114/R [7.26]; Peter

K. Yu, The Objectives And Principles Of The TRIPS Agreement,993……………….45

5
Prue Taylor, An Ecological Approach to International Law: Responding to Challenges of Climate
Change, 70 (Routledge, 1998); Daniel Bodansky, Customary (and Not So Customary)
International Environmental Law, 3..............................................................................................25

State of Necessity as an Exemption from State Responsibility for Investments, Marie Christine
Hoelck Thjoernelund, University of Heidelberg, March 2008, p.435. ……………..38

The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C, Dec. 4, 2000, ICESR
General Comment 14 (2000).........................................................................................................22

TRIPS, Access To Medicines And The "North-South" Conflict After Doha: The End Or The
Beginning?‖ 2006, 6 Asper Rev. Int'l Bus. & Trade L. 67……………………………………….45

William Ralston : Foreign Equivalents of the U.S. Doctrine of Equivalents: We're Playing in the
Same Key But It's Not Quite Harmony, Chicago-Kent Journal of Intellectual Property, spring
2007, 12………………………………………..………………………………………………..46

Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under
General Human Rights Law...........................................................................................................21

INTERNATIONAL DECISIONS AND ARBITRAL AWARDS

A. Racke Gmbh & Co. V. Hauptzollamt Mainz, C-162/96, 3 Common Mkt L. Rep. 219, At 229
(1998). ………………………………………..……………………………………………….35

Appellate Body Reports, European Communities – Measures Prohibiting The Importation And
Marketing Of Seal Products, Adopted 18 June 2014 [Ec- Seal Products].....................................23
British Property in Spanish Morocco Case (1925), RIAA, 2, pp. 636, 709-10 …………………26

Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21; Lac Lanoux Arbitration (Fr v. Spain)24 I.L.R
(1957) [Hereinafter Lac Lanoux Arbitration]. ………………………………………………….29

European Union, Association Agreement between the European Union and the European Atomic
Energy Community and their Member States, of the one part, and the Republic of Moldova, of
the other part, 26 November 2013, ……………………………………………………………....24

Electric & Musical Industries Ltd v Lissen Ltd (1938) 56 RPC 23, 57 …………………………46

6
FISHERIES JURISDICTION CASE (UK. V ICELAND) 1974 I.C.J, 36…………………..…..36

Gabčĭkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept. 25). …………...…..38

Joslin v New Zealand (2002) Comm. No. 902/1999 U.N. Doc. A/57/40 at 214 (2002)……….. 34

Lotus Case, (Fr. v. Turk.), 1927 P.C.I.J. 5, 18 (Sept. 7); see also Roman Kwiecien, In Defence of
the Idea of State Sovereignty in International Law 27 Polish Y.B. Int’l L. 87, 99 (2004-2005).
………………………..………………………..……………………………………..….29

White v. Dunbar, 119 U.S. 47, 52 (1886). ………………………………………………..……46

INTERNATIONAL LAW COMMISSION REPORTS

Yearbook of the International Law Commission, vol. II, Part One (1980)………………….….39

TREATIES AND CONVENTIONS

Convention on Biological Diversity………………………………………..…………………24

Doha Declaration on the TRIPS Agreement and Public Health……………………………….44

International Committee of the Red Cross (ICRC), Customary International Humanitarian Law
………………………………………..……………………………….……………….……..29

International Covenant of Economic, Social and Cultural Rights …………………………..23

ILC Draft Articles On The Prevention Of Transboundary Harm From Hazardous Activities, With
Commentaries………………………………………..………………………………..………25

ILO, 'Understanding the Indigenous and Tribal People Convention, 1989 (No. 169)" (2013)
………………………………………..………………………………………….……..31

Indigenous and Tribal Populations Convention International Labour Organization, Convention

No. 169, June 27, 1989. ………………………………………………………………………….33

Trade-Related Aspects of Intellectual Property Rights (TRIPS) ……………………………….43.

Rio Declaration..............................................................................................................................24

7
Straddling Stocks Agreement.........................................................................................................22

World Health Organization, Fifty-Eighth World Health Assembly, Revision Of The International
Health Regulations, Articles 5(1) And 13(1), Annex 1, W.H.A. Doc. 58.3 (May 23, 2005).........21

TREATISES AND BOOKS

Boed, State of Necessity as a Justification for Internationally Wrongful Conduct, Yale Human
Rights and Development Journal vol.3, 2014…………………………………………………..39

Brownlie, Principle of Public International Law, 5th Edition, 1998, . 237……………………..29

Fitzmaurice, Necessity in International Law, Netherlands Yearbook of International Law, vol.41,

2011, 177 ………………………………………………………………………………………..39

Holyoak and Torremans, ‘Intellectual Property Law’ 2 nd ed. Butterworths [1998] – page
12…………………………………………………………………………………………….…..48

Lal Kurukulasuriya & Nicholas Robinson, Training Manual on International Environmental Law,
IUCN Academy of Environmental Law, (2006) ………………………………………………..33

Malcolm N Shaw, International Law 760 (Cambridge University Press 5th Ed., 2003)
[Hereinafter Shaw]. ………………………………………………………………………….…..25
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 30……..…..47

W.R.Cornish, Intellectual Property,(3rd Edition, Sweet & Maxwell Publication 1996) 179
…………………………………………………………………………………………………..47

U.N. RESOLUTIONS AND OTHER DOCUMENTS

Convention for the Safeguarding of Intangible Cultural Heritage Article

11………………………………………………………………………………………………..27

Declaration on the TRIPS Agreement and Public Health. Adopted on 14 November

2001……………………………………………………………………………….………..…..43

Inter-American Commission on Human Rights (IACHR), Annual Report of the Inter-American

Commission on Human Rights 2011, 2012…………………………………………..………….35

8
IUCN, Guidelines for Applying the Precautionary Principle, INTERNATIONAL UNION FOR
THE CONSERVATION OF NATURE 1, (2007) ………………………………………..…….27

Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add.15, (Dec. 28, 1992)
......................................................................................................................................................20

Human Rights Committee, General Comment No. 29 – States of Emergency (article 4),
CCPR/C/21/Rev.1/Add.11, (2001), para.2. ……………………………………………………...34

Human Rights Council 24th Regular Session: Statement of the Asia Indigenous Peoples Pact
(AIPP) by Joan Carling, Secretary General". September 2013. ………………………………31

UNCTAD-ICTSD (eds.), ̳ Project on IPRs and Sustainable Development, Resource Book on

TRIPS and Development‘ (CUP, Cambridge 2005) 471………………………………….……..44

UNDRIP, Article 41. …………………………………………………………………….………37

UN High Commissioner for Refugees (UNHCR), UNHCR Compilation of Case Law on Refugee
Protection in International Law, March 2008……………………………………………..…….20

UN Human Rights Committee (HRC), UN Human Rights Committee: Third Periodic Report,
Portugal, 6 June 2002, CCPR/C/PRT/2002/3………………………………………………..….30

U.N. Charter, Art. 2, as amended June 26, 1945, 892 U.N.T.S. 119. …………………………..28

United Nations International Human Rights Instruments, Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies , 12 May
2004……………………………………………………………………………………………39

UN Permanent Forum on Indigenous Issues (UNPFII), State of the World's Indigenous Peoples,
14 January 2010, ST/ESA/328…………………………………………………………………33

United Nations Permanent Forum on Indigenous Issues. "Frequently Asked Questions –

Declaration on the Rights of Indigenous Peoples", January 15, 2012. ………………………..34

Council of Europe, Human rights files, No. 9: Asylum and the European Convention on Human
Rights, 15 December 2011…………………..……………………………………………..20

"WHO's interactions with Civil Society and Nongovernmental

Organizations" (PDF). WHO/CSI/2002/WP6. WHO. 2002. p. 2. ………………………..21

MISCELLANEOUS
9
Compromis…………………………….. 21, 22, 26, 29, 30, 31, 34, 36, 37, 40, 41, 43, 45, 46

Puruhuaca Harvest Research Agreement, Art. 20…………………………………………31

Art 56(3),172(3) Swiss Constitution of April 18, 1999…………………………………….19

STATEMENT OF JURISDICTION

Pursuant to the Special Agreement concluded on 15 August 2018, between the Republic

of Ayasa (Applicant) and the Confederation of Ramigian Nations (Respondent), in accordance

with Article 40(1) of the Statute of the International Court of Justice, the Parties hereby transmit

10
to this Court the case of Questions Relating to the Harvest and Processing of Purahuaca and the

Destruction of the Lusewa Rainforest

In accordance with Article 3 of the Special Agreement, the International Court of Justice

is hereby requested to decide the Case on the basis of the rules and principles of general

international law, as well as any applicable treaties, and to determine the legal consequences,

including the rights and obligations of the Parties, arising from its Judgment on the questions

presented in the Case. The Parties have agreed to respect the decision of this Court and shall

execute it in its entirety and in good faith.

QUESTIONS PRESENTED

I.

WHETHER RAMIGO IS LIABLE FOR THE WORSENING OF THE OUTBREAK DUE

TO THE LOSS OF CULTIVATED PLANTS

11
 II.

WHETHER RAMIGO VIOLATED ENVIRONMENTAL LAW BY BURNING THE

BORDER TREES

III.

WHETHER THE USE OF THE PLANT BY AYASA’S CITIZENS IS A VIOLATION OF

INDIGENOUS PEOPLES RIGHTS

IV.

WHETHER AYASA HAS RIGHTFULLY ACQUIRED INTELLECTUAL PROPERTY

RIGHTS OVER THE PLANT

STATEMENT OF FACTS

BACKGROUND

The Republic of Ayasa (Ayasa), a low middle income country with a population of 20

million, is situated in the island of Fersila. Its government is a unitary presidential system whose

main industry is agriculture and farming at the edge of the rainforest where the soil is fertile due

to the sediments deposited by the Lusewa River.

12
THE LUSEWA RAINFOREST

The Lusewa River, known as the “The Lost Frontier,” serves as the border between the

Republic of Ayasa and the Confederation of Ramigian Nations (Ramigo). The UNESCO has

named the Rainforest and the River as a World Heritage Site due to the presence of animals and

plants of “outstanding universal value from the point of view of science or conservation.” Thus,

the rainforest was declared a protected area by both Ayasa and Ramigo under the Lusewa

Rainforest and River System Protection Agreement

THE LIMARA OUTBREAK

In July 2015, during the rainy season, the mosquito population surged in Ayasa, causing a

limara outbreak. Limara is a mosquito-borne parasite that causes high-fevers, vomiting, diarrhea,

and in a deadly turn, liver and brain damage within one week if not treated. From July to August

alone, 20,000 cases had been reported. Stockpiles of quinine, the traditional malaria cure, were

fast dwindling and yet proved ineffective.

THE IMPORTATION OF RAMIGIAN PURUHUACA

The Ayasa Department of Health found out about the Chae-jen and Nadajo study which

posited that the smoking of the purahuaca trees drove away the mosquitoes and injecting its brew

can kill the parasites within a week. The Ayasan President, Jolan Votig declared a state of

emergency due to the limara outbreak and recommended the importation of Ramigian

Purahuaca.

The puruhuaca tree is a medium-sized tree which grows in Sanagu, an autonomous region

of Ramigo. The purahuaca tree is highly valued by the Omelois, a semi-nomadic tribe in Sanagu,

because the taproot of the tree is brewed by the tribe elders for a communal healing and decision-

making ritual called huacasera. The brew can cure malaria, diarrhea, and diseases of the blood.

13
THE PURAHUACA HARVEST AND RESEARCH ARRANGEMENT

When the Council of Elders of Omeloi Tribe knew that the limara cases ballooned to

50,000 in October, they went to the Ramigian Capitol and manifested that they understood the

desperation of the Ayasans to find a cure and allowed limited harvesting of the purahuaca root,

bark, and flowers. The Purahuaca Harvest and Research Arrangement was negotiated between the

Omeloi and the Ayasan government, where the Omeloi allowed Ayasan people and machines to

enter into their land to harvest the root. The Ayasan government paid US$ 5 million for 25 trees

for the testing phase. Ayasa bought 40% of the shares of Rylov Corporation, a pharmaceutical

company, and subsidized it to develop treatment.

THE PROTEST OF THE OMELOI CHIEF ELDER

During the clinical trials, Rylov invited members of the Omeloi tribe to see the production

process. The Chief Elder protested when he saw the grafting process, saying that it was against

tribal custom to graft plants since it would make the original plant unclean. Rylov scientists

explained that this would make the drug more potent. Even worse, other elders saw the

abbreviated version of the smoking and drying process, lack of community involvement and

prayers during the process. The next day, the elders inspected the harvesting site and saw that

Rylov researchers had 100 trees, 75 more than what was agreed upon in the PHR Agreement.

THE PRODUCTION OF HUACAXIN DRUGS AND ITS PATENT

By May 2017, using modernized versions of the techniques, Rylov was able to produce a

drug branded as Huacaxin. They patented both the drug and the smoking process. The drug was

made commercially available and it was reported to be effective in 95% of cases.

THE BURNING OF THE PURAHUACA TREES ON THE AYASAN BORDER

14
 On the night of February 3, 2018, some of the Omeloi tribesmen, including the elders,

burnt purahuaca trees on the Ayasan side of the border, angry that the drug was patented without

recognition of the tribe’s contribution to its development and processing of the drug. The

purahuaca tree, being highly flammable flowers when burnt, spread west due to a strong wind

blowing that night. The fire reached the edge of the forest and spread to the farming communities

in Ayasa, killing 70 residents and injuring 500 others. The fire raged on for 7 days, destroying

10% of the Ayasan part of the Lusewa Rainforest. An estimated 20% of the frog population was

decimated in the blaze. The loss of frog species in the forest allowed the mosquito population in

Ayasa to grow faster for lack of natural predators. Cases of limara skyrocketed in March to

400,000 and the death toll was at 100,000.

THE FAILURE OF THE NEGOTIATION

Ramigo refused to take responsibility, with Prime Minister Reino saying that the Omeloi

people are autonomous and that the Ramigian state did not condone as such is not an act of the

state of Ramigo but only of the Omeloi, who are autonomous. However, the Ramigian state

requested the release of the Omeloi.

The Republic of Ayasa tried to talk to the Council of Elders. However, the Council of

Elders refused, saying that they were advised by the Ramigian government to wait for the results

of the negotiations. Further, the Omeloi elders said that the Rylov researchers are now barred

from seeking access into Sanagu. Due to the lost access, Rylov’s drug production slowed down

just as the infection rate rose. By June 2018, 600,000 Ayasans were infected and 150,000 had

died since the beginning of the outbreak.

APPLICATION TO THE COURT

15
 Unable to come up with an acceptable solution to the concerns of both Rylov and the

Omeloi, talks between the foreign affairs departments collapsed. Ayasa decided to file a

complaint with the International Court of Justice, alleging that Ramigo violated environmental

laws by burning the border trees making them liable for the worsening of the outbreak due to the

loss of cultivated plants. The Republic of Ayasa also claims that the cultural practices of the

Omeloi cannot prevail over the public health emergency in Ayasa and that it has rightfully

acquired intellectual property rights over the plant.

16
 SUMMARY OF PLEADINGS

I. The Confederation of Ramigian Nations is liable for the worsening of the outbreak due to

the loss of cultivated plants.

The worsening of the Limara outbreak is attributable to Ramigo. Given that the latter is its

central government, it is liable for the acts of its autonomous region such as Sanagu. In addition,

it condoned the acts of the Omeloi Tribesmen, violated its international obligation and its failure

to comply with its obligation is not justified under international law

II. The Confederation of Ramigian Nations violated Environmental Laws by burning the

border trees

Ramigo violated its duty not to cause transboundary harm. Identically, it failed to observe

due diligence thereby violating the precautionary principle. Henceforth, Ramigo was unable to

fulfil its duty to protect and prevent the destruction of a UNESCO World Heritage Site.

III. The use of the plant by Ayasa’s citizens is a violation of indigenous peoples’ rights

Even if both Ayasa and Ramigo has permanent sovereignty over their natural resources,

such respect of a state’s autonomy s a two-way process. These sovereignty may be lawfully

subordinated to the interest of the society. As such, Ayasa’s wrongfulness is precluded by

necessity. Also the grafting of the Puruhuaca Trees did not violate the indigenous peoples right

because it was according to the PHR agreement and the incorporation of new techniques give

long term benefits for the entire Ayasan community. Futher, Ayasa did not commit any violation

of international law and its actions were consistent with the UNDRIP, ILO Convention Np. 169,

17
the ICCPR and the ICESCR. Given the current outbreak in Ayasa, the cultural practices of the

Omeloi cannot, therefore, prevail in cases of public emergency.

IV. The Republic of Ayasa has rightfully acquired intellectual property rights over the plant

Ayasa met all the criteria of patentability because the Huacaxin drug was new, non-

obvious and useful. Since the patent was granted in the situation of national emergency, it can be

gleaned that there is a waiver of negotiation. Also, the payment of the royalties requested by the

Omeloi will cause unreasonable prejudice to Ayasa. Since what is being patented is only the

chemical composition, the patent issued was indeed valid and no Biopricay was committed.

18
 MAIN PLEADINGS

I. RAMIGO IS LIABLE FOR THE WORSENING OF THE LIMARA OUTBREAK

A. THE WORSENING OF THE OUTBREAK IS ATTRIBUTABLE TO RAMIGO

The traditional duty of states is not to harm the rights and certain interests of another

state.1 Known as state responsibility, this concept ensures that every state must take into account

the interests of neighboring states in enacting laws that would require minimal sacrifice in order

to accommodate the respective community’s interest. 2 For this reason, even if Sanagu is an

autonomous region, Ramigo, as a central government, is liable for its autonomous regions even

when such region exercises its contractual rights. Similarly, the Omeloi, a semi-nomadic 3 tribe

which settled in Sanagu, is also subject only to the Constitution of the Ramigo. 4 The ICJ in

Military and Paramilitary Activities assserted that the conduct perpetrated by persons or entities

having the status of "organs" of a government under its internal law are acts attributable to that

government.5 Undoubtedly, the fact that Sanagu is an autonomous region which decides on its

own natural resource utilization, business laws are immaterial. 6 According to article 8 of the

1
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the
ILC on the Work of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc
A/56/10 (2001).
2
Ibid at note 1
3
Compromis, ¶ 6
4
Compromis, ¶ 7
5
Application of the Convention on the Prevention and Punishment of the Crime of Geno- cide,
op. cit., f 386.
6
Compromis, ¶ 5

19
International Law Commission Articles on States Responsibility, which is reflective of customary

international law, conducts directed by a state are considered acts of that state.7

B. Ramigo, as a central government, is liable for its autonomous regions such as

Sanagu

A state is not only responsible for the wrongful acts attributed to the central bodies, but

also for the wrongful acts committed by the local communities 8. In respect of the federal state,

the internal organizational structure which is different from of a unitary state, does not affect in

any way the principle of the responsibility of the state for internationally wrongful acts. 9 The

component states of the federation, although they have a certain domestic autonomy according to

the constitutional provisions, do not have legal personality of international law, do not have the

capacity of signing treaties and cannot be held responsible internationally.10

The Confederation of Ramigian Nations’ central government controls the national defense

and foreign policy, and allocates funds11 to its regions, including autonomous regions like

Sanagu. Thus, Omeloi, a semi-nomadic12 tribe settled in Sanagu, which is an autonomous region

subject only to the Constitution of the Ramigo.13

7
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
Case (Bosnia and Herzegovina v. Serbia and Montenegro) (Merits)[2007] ICJ Rep 43, para.398.
8
James Crawford, The international Law Commission’s Articles on States Responsibility,
Introduction, text and Commentaries, (Cambridge University Press 2002), p.97.
9
Art 56(3),172(3) Swiss Constitution of April 18, 1999.
10
Felicia Maxim, Attribution of Conduct to a State: The Subjective Element of the International
Responsibility of the State For Internationally Wrongful Acts, p. 1087
11
Compromis, ¶ 5
12
Compromis, ¶ 6
13
Compromis, ¶ 7
20
 C. Ramigo condoned the acts of Omeloi Tribesmen.

Condonation occurs when the state turns a blind eye to its organ’s acts of violence or

avoid its persecution.14 Certainly, where the criminal conduct of private citizens are tolerated, it

will result in the withholding of protection which the victims are entitled to expect most

especially where the state has the duty to prevent such harm. 15 A liability arises for a failure to

remedy the harm.16

When the border guards of Ramigo stood by without doing anything, claiming that they

had no jurisdiction to intervene with occurrences on the Ayasan side of the river, 17 when the

Ramigian state requested the release of the Omeloi,18 and when the Republic of Ayasa tried to

talk to the Council of Elders but the latter refused, saying that they were advised by the Ramigian

government to wait for the results of the negotiations,19 are best evidence of condonation.

D. Ramigo violated its international obligation

1. Ramigo violated its treaty obligations

The Member States of World Health Assembly are urged to mobilize necessary resources and

to provide support upon request in matters concerning public health emergencies of international

concern.20 Ramigo breached its obligation to provide support upon request of Ayasa during the

14
Report of the Human Rights Committee, U.N. Doc. CCPR/C/79/Add.15, (Dec. 28, 1992)
15
UN High Commissioner for Refugees (UNHCR), UNHCR Compilation of Case Law on
Refugee Protection in International Law, March 2008
16
Council of Europe, Human rights files, No. 9: Asylum and the European Convention on
Human Rights, 15 December 2011
17
Compromis,, ¶ 31
18
Compromis, ¶ 33
19
Compromis, ¶ 34
20
World Health Organization, Fifty-Eighth World Health Assembly, Revision of the International
Health Regulations, Articles 5(1) and 13(1), annex 1, W.H.A. Doc. 58.3 (May 23, 2005).
21
Limara outbreak.21 It failed to provide adequate enforcement assistance when it caused delay of

negotiations between the Council of Elders and Republic of Ayasa 22 despite the skyrocketing

cases of limara to 400,000 and death toll to 100,000 in March23.

The IHR also requires each state members to provide technical cooperation and logistical

support and in mobilizing financial resources for developing countries.24 Also, the WHO

required states to take separate action to achieve the full realization of the right to health. 25

Depending on the availability of resources, States should facilitate access to essential health

facilities, goods, and services in other countries, wherever possible and provide the necessary aid

when required.26 However, Ramigo allowed the Omeloi to bar the Rylov researchers from

seeking access into Sanagu leading to the increase of infection rate to 600,000 and death of

150,000 since the beginning of the outbreak27. Paradoxically, Ramigo barred access of Rylov

scientists to Sanagu that slowed down the production of hucaxin despite the fact that developed

nations are called to assist developing nations with assistance.28

21
Compromis ¶ 13
22
Compromis, ¶ 34
23
Compromis, ¶ 32
24

Yun, Seira (2014). "Breaking Imaginary Barriers: Obligations of Armed Non-State Actors Under
General Human Rights Law
25
"WHO's interactions with Civil Society and Nongovernmental Organizations" (PDF).
WHO/CSI/2002/WP6. WHO. 2002. p. 2.
26
U.N. Economic & Social Council [ECOSOC], General Com- ment 14: The right to the highest
attainable standard of health, 532 journal of law, medicine & ethics 21.
U.N. Doc. E/C.12/2004/4 (Twenty-second session, 2000).
27
Compromis, ¶ 34
28
Straddling Stocks Agreement, Art. 24, 2(c), Art.25, 3(c)
22
 2. Ramigo failed to perform its obligation to respect, protect and fulfill.

The obligation to respect requires states parties to refrain from interfering directly or

indirectly with the enjoyment of the right to health. 29 Yet, Ramigian government advised the

Omeloi elders to wait for the results of the negotiations between the foreign affairs department of

Ayasa and Ramigo before resuming its talks to the former and to Rylov researchers. 30 The

consultative process to settle the dispute between two states began in December 2017, 31 however,

despite of failure to come up with acceptable solutions 4 months after the forest fire and

continuous lamira outbreak, still Rylov researchers is barred from seeking access to Sanagu.32

The obligation to protect requires states parties to take measures that prevent third parties

from interfering with what Article 12 guarantees. 33 However, because of denying access to

Sanagu, Ramigo failed to help prevent, treat and control the worsening outbreak of lamira.

Furthermore, Ramigo did not give an aid in creating conditions, which would assure to all

medical service and medical attention at the event of the increasing cases and morality rate.34

The obligation to fulfill requires states parties to adopt appropriate legislative,

administrative, budgetary, judicial, promotional and other measures towards the full realization of

the right to health.35 Because of cutting off access to Sanagu, it led to more bodily harm,

unnecessary morbidity, and preventable mortality.”36

29
The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C, Dec. 4, 2000, ICESR
General Comment 14 (2000)
30
Compromis, ¶ 34
31
Compromis, ¶ 28
32
Compromis, ¶ 34
33
ICESCR, Article 12
34
Id.
35
Id.
36
Id.
23
 E. Ramigo’s failure to comply with its obligations is not justified under

international law.

1. Prohibition to enter Sanagu is not a valid countermeasure

The blockage of entry to Sanagu fails the “necessity” test used by GATT/WTO panels to

determine the validity of a public morals exception “weigh[s] and balance[s]” a series of factors,

including the importance of the objective, the contribution of the measure to that objective, and

the trade-restrictiveness of the measure.”37Additionally, a comparison between the challenged

measure and possible alternatives should be undertaken.38 Ramigo failed to achieve the objective,

and the GATT necessity test because the cutting of access is unnecessarily trade-restrictive.39

The international environmental law prohibits unilateral trade sanctions because they

contravene the concept of sustainable development. 40 Coercive economic acts by a wealthy state

like Ramigo, such as disallowing the entry of Ayasa to Sanagu, against a developing state like

Ayasa contradict this purpose.41

2. Ramigo failed to exhaust available proper remedies

Ramigo did not explore these less-restrictive alternatives before implementing the import

ban, and therefore, violated its obligations under the Lusewa Agreement. Import bans should be

37
Appellate Body Reports, European Communities – Measures Prohibiting the Importation and
Marketing of Seal Products, adopted 18 June 2014 [EC- Seal Products].
38
Ibid. at 37.
39
European Union, Association Agreement between the European Union and the European
Atomic Energy Community and their Member States, of the one part, and the Republic of
Moldova, of the other part, 26 November 2013,
40
Rio Declaration, Principle 12.
41
Carl von Clausewitz, On War, edited and translated by Michael Howard and Peter Paret
(Princeton, N.J.: Princeton University Press, 1976).

24
implemented as a last resort, when all other remedies have been exhausted. 42 It could have

avoided the cutting of access to Sanagu by: 1) fulfilling its international obligations under the

CBD by providing financial assistance to Ayasa; or 2) renegotiating PHRA with Ayasa. 43

II. RAMIGO VIOLATED ENVIRONMENTAL LAW BY BURNING THE BORDER

TREES

A. Ramigo violated its duty not to cause transboundary harm

In accordance with the principle of sic utero tuo, ut alienum non laedas or “principle of good

neighbourliness” it is a well-established custom of international environmental law that no state

has the right to use or permit the use of its territory in such a manner as to cause injury to the

territory of another or the properties or person therein.44 Every state is thus under an obligation

not to allow knowingly its territory to be used for acts contrary to the rights of other States; 45 and

to ensure that activities within their jurisdiction and control respect the environment of other

states or of areas beyond national control. This obligation underpins the concept of sustainable

development and has been sanctified by wide state practice, and is so recognized in various

international instruments;46 and has further been reaffirmed in very many judicial decisions. 47 The

duty to prevent transboundary harm has even attained the status of customary international law

42
Rio Declaration, principle 12.
43
CBD, art. 21.
44
Malcolm N Shaw, International Law 760 (Cambridge University Press 5th ed., 2003)
[Hereinafter Shaw].
45
Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21; Lac Lanoux Arbitration (Fr v. Spain)24
I.L.R (1957) [Hereinafter Lac Lanoux Arbitration].
46
Art. 3, ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities, with Commentaries, [2001]
47
Gabčĭkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept. 25).
25
relating to environment.48 Ramigo violated its duty to protect and prevent destruction of Lusewa

Rainforest as mandated by Article 15 of the Lusewa Rainforest and River System Protection

Agreement.49

B. Ramigo has Failed to observe ‘due diligence’.

It is the primary duty of the states to try to prevent harmful activities within their

States and as far as the obligation to prevent is concerned there is no doubt that it is conditioned

by due diligence.50 It is well established that the obligation of a State to prevent transboundary

harm is one of “due diligence”, or “best effort‟ obligation; which requires all States to have taken

all reasonable or necessary measures to prevent a given event from occurring. 51 Notably, when

the Omeloi tribesmen and elders burnt the puruhuaca trees on the Ayesan side of the border is a

concrete evidence that Ramigo failed to observe due diligence as the standard basis for

environmental protection expounded in the widely supported ILC Draft Articles. 52 In fact, the

obligation to observe due diligence in preventing pollution is absolute, and for the breach, the

states are liable irrespective of any fault.53

C. Ramigo violated the precautionary principle.

The precautionary principle mandates states to anticipate, avoid, and mitigate threats to

the environment.54 It requires that when an activity raises threats of harm to human health or the

48
Prue Taylor, An Ecological Approach to International Law: Responding to Challenges of
Climate Change, 70 (Routledge, 1998); Daniel Bodansky, Customary (and Not So Customary)
International Environmental Law, 3
49
Compromis, ¶ 31
50
British Property in Spanish Morocco Case (1925), RIAA, 2, pp. 636, 709-10
51
Trail Smelter, supra note 19.
52
I.L.C Draft Articles on Transboundary Harm, supra note 21 at 392.
53
Shaw, supra note at note 16.
54
IUCN, Guidelines for Applying the Precautionary Principle, INTERNATIONAL UNION FOR
THE CONSERVATION OF NATURE 1, (2007)
26
environment, precautionary measures should be taken even if some cause and effect relationships

are not fully established scientifically.55 This has two elements. First, there must be a potentially

risky activity; second, the proponent has the burden of proving that its proposed act poses no risk

to the environment or human health. Hence, the reckless attitude of Ramigo, in spite of constant

warnings about its significant negative effects should not be permitted to be justified on the

ground of the precautionary principle.56

D. Ramigo violated its duty to protect and prevent destruction of a UNESCO

World Heritage Site

A state is expected to ‘take necessary measures to ensure the safeguarding of the intangible

cultural heritage present in its territory. 57 These measures include identification of the intangible

cultural heritage that exists in its territory but also the adoption of appropriate policies. 58 Ramigo

failed to comply with its duty of ensuring the identification, protection, conservation,

presentation and transmission to future generations of the cultural and natural heritage and

situated on its territory, belongs primarily to that State. 59 Ramigo must recognize that it is their

primary duty to the international community as a whole to co-operate in the protection of such

http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf.
55
Nicholas Ashford, et. al., Wingspread Statement on the Precautionary Principle, Wᴏʀʟᴅ
Hᴇᴀʟᴛʜ Oʀɢᴀɴɪᴢᴀᴛɪᴏɴ 1 (1998) www.who.int/ifcs/docufments/forums/forum5/wingspread.doc.
56
Compromis, ¶ 31
57
Kurin, Richard (1 May 2004). "Safeguarding Intangible Cultural Heritage in the 2003
UNESCO Convention: a critical appraisal"
58
Convention for the Safeguarding of Intangible Cultural Heritage Article 11
59
Brown, Michael F. (2005). "Heritage Trouble: Recent Work on the Protection of Intangible
Cultural Property"

27
heritage.60 Albeit, the Omeloi tribesmen and elders burnt the puruhuaca trees on the Ayesan side

of the border while the border guards of Ramigo stood by without doing anything, claiming that

they had no jurisdiction to intervene with occurrences on the Ayasan side of the river. Thus,

Ramigo failed in its duty to safeguard its Intangible Cultural Heritage.61

III. THE USE OF THE PLANT BY THE AYASANS IS NOT A VIOLATION OF THE

INDIGENOUS PEOPLE’S RIGHT

A. AYASA AND RAMIGO HAS PERMANENT SOVEREIGNTY OVER THEIR

NATURAL RESOURCES

The core principle of every international obligation is the notion of State sovereignty. 62

States have, in accordance with the United Nations Charter and International Law, the sovereign

right to exploit their own resources pursuant to their own environmental policies. 63 The sovereign

right to exploit natural resources includes the right to be free from external interference over their

exploitation,64 provided that it does not violate legitimate rights. 65 States such as the Republic of

Ayasa66 and the Confederation of Ramigian Nations 67 have the duty to refrain from intervention

in the internal or external affairs of one another. 68 In fact, the ICJ approved the duty of non-

60
Ibid at note 59
61
Ibid at note 59
62
U.N. Charter, Art. 2, as amended June 26, 1945, 892 U.N.T.S. 119.
63
Rio Declaration, Principle 2.
64
Brownlie, Principle of Public International Law, 5th Edition, 1998, . 237
65
Ibid at note 64.
66
Compromis, ¶ 4
67
Compromis, ¶ 5
68
I.L.C., Draft Declaration on Rights and Duties of States, 56 Y.B. INT'L L. COMM'N 178
(1949), art. 3.
28
intervention in the Corfu Channel Case,69 and pursuant to the Lotus Principle70, both Ayasa and

Ramigo may exercise its State sovereignty in any way it wishes so long as international law does

not prohibit its actions.71

1. Consequently, respect for autonomy is a two-way process.

Article 5 of the Universal Declaration on Bioethics and Human Rights specifies that

individuals have the right to make their own decisions but must also respect the autonomy of

others, including all the other people involved. 72 In this regard, Ayasa may exercise its State

sovereignty in any way it wishes so long as international law does not prohibit its actions. 73

Ramigo’s accountability, on the other hand, entails an element of shared responsibility.74

2. Enjoyment of state’s resources may be lawfully subordinated to the interests of

society.

Each contracting party shall, cooperate in respect of areas beyond national jurisdiction to

complement activities in order to increase the context non-commercial production and ecosystem

management.75

To this view, the Lusewa Rainforest and River System Protection Agreement was created

in order to prevent destruction, vandalism, or unlawful taking of flora and fauna. 76 Ayasa’s acts
69
Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21.
70
International Committee of the Red Cross (ICRC), Customary International Humanitarian
Law , 2005, Volume I: Rules
71
Lotus Case, (Fr. v. Turk.), 1927 P.C.I.J. 5, 18 (Sept. 7); see also Roman Kwiecien, In Defence of
the Idea of State Sovereignty in International Law 27 Polish Y.B. Int’l L. 87, 99 (2004-2005).
72
Ibid at note 64
73
UN Human Rights Committee (HRC), UN Human Rights Committee: Third Periodic Report,
Portugal, 6 June 2002, CCPR/C/PRT/2002/3
74
UN High Commissioner for Refugees (UNHCR), Co-operation to Address the Irregular
Movement of Asylum-Seekers and Refugees: Elements for an International Framework, 17 April
2003
75
CBD, Article 5.
76
Compromis, Annex A, Article 15.
29
comport with the provisions of the CBD. Ayasa is exercising its State sovereignty by grafting the

Ramigian branches of purahuaca with that of Ayasan branch to improve the efficacy of Ayasan

purahuaca samples77—one that is not prohibited by the PHR Agreement and international law. It

also does not negatively impact other states or areas beyond its jurisdiction.

A. THE GRAFTING OF THE PURUHUACA TREES DID NOT VIOLATE

INDIGENOUS PEOPLES RIGHTS

1. Ayasa did not violate the PHR Agreement.
a. Other methods for harvesting and processing may be resorted to if it makes the

drug more potent.

Consistent with Article 20 of the PHR, Ayasa respected the traditional preparation of the

trees from harvesting to its processing.78 It only resorted to other means such as grafting the trees

in a glass house using the Ramigian soil since it would create a more effective version of the

drug.79 In fact, during the formulation of the PHR between the Omeloi and the Ayasan

government, where the Omeloi allowed Ayasan people and machines to enter into their land to
80
harvest the root, payment for the extraction of plant was discussed and considered. Thus, it can

be concluded that there exist Free Prior Informed Consent to bottom up participation and

consultation of an Indigenous Population81 prior to the grafting process which the Omelos claim

to be a violation of their tribal custom. 82 Since Ramigo ratified the ILO, they are aware that

consultations must take place in a climate of mutual trust. 83 Ergo, the formulation of the

77
Compromis, ¶ 22.
78
Puruhuaca Harvest Research Agreement, Art. 20
79
Ibid at note 21
80
Compromis, ¶ 20
81
Lorenza B. Fontana and Jean Grugel, “The Politics of Indigenous Participation Through ‘‘Free
Prior Informed Consent”: Reflections from the Bolivian Case” (2016) 77 World Development
249-261
82
Compromis, ¶ 23
83
ILO, 'Understanding the Indigenous and Tribal People Convention, 1989 (No. 169)" (2013
30
agreement did not only create a favourable condition for Ayasa but all the more for Ramigo in

reaching such agreement and consent.84

2. Incorporation of new techniques give long term benefits for the entire

community

The Universal Declaration on Bioethics and Human Rights, which adopted by

acclamation the UNESCO General Conference, considers the right of every human being to

enjoy the highest attainable standard of health; 85 and the explicit need to respect cultural diversity

and pluralism;86 which includes respect for traditional knowledge.87 In any case, fair assessment

of benefit and harm;88 adequate information; access to quality health care and essential

medicines;89 and sharing of benefits90 are all instrumental in promoting the right of every human

being to enjoy the highest attainable standard of health.

Thus, if indigenous communities can incorporate modern practices, such as Grafting of

Purahuaca Trees in a glass house to make drug more potent 91 and use them to become

economically, politically and culturally empowered, there will be long-term benefits for the entire

community.92

3. No violation of customary international law was committed.

84
Human Rights Council 24th Regular Session: Statement of the Asia Indigenous Peoples Pact
(AIPP) by Joan Carling, Secretary General". September 2013.
85
Universal Declaration on Bioethics and Human Rights (UDBH), Article 14
86
UDBH, Article 12.
87
UDBH, Article 17.
88
UDBH, Article 4.
89
UDBH, Article 14.
90
UDBH, Article 15.
91
Compromis, ¶ 22
92
Minority Rights Group International, Taking diversity seriously: minorities and political
participation in Kenya, 28 January 2013
31
 Generally, while the traditional method of harvesting 93 and processing purahuaca is

preferred, there is no customary international law obligation governing the method by which

purahuacas are harvested. For a customary international law to be considered as legally binding

obligations, two compulsory elements 94 must be satisfied: state practice – the “rule of consistent

and uniform usage” and opinio juris – a showing that states actions stem from the belief that such

practice is required by law.95 As a result, the method of harvesting purahuaca and huacasera does

not meet the requisite widespread state practice and opinio juris necessary to create a binding

legal obligation.96

Ayasa did not violate the UNDRIP, ILO Convention No. 169, ICCPR and

ICESCR.

Ayasa acknowledged that the Omelois hold a legal title for its ancestral territories even before

1915.97 The latter have close ties to their lands and to the river which establishes their territorial

connection and retain their own distinctive cultural and political institutions. 98 With this in mind,

it cannot be gainsaid that the Ayasan government violated the Omelois right as indigenous

peoples because it rightfully respected and retained many of the Omelois’ traditions for many

years through the establishment of the Lusewa Rainforest and River System Protection

Agreement.99 Altogether, Aaysa did not violate the ILO convention which guarantees the rights

93
UN Permanent Forum on Indigenous Issues (UNPFII), State of the World's Indigenous
Peoples, 14 January 2010, ST/ESA/328
94
International Committee of the Red Cross (ICRC), Customary International Humanitarian
Law , 2005, Volume I: Rules
95
Lal Kurukulasuriya & Nicholas Robinson, Training Manual on International Environmental
Law, IUCN Academy of Environmental Law, (2006)
96
European Journal of International Law, Volume 26, Issue 2, 1 May 2015, Pages 417–
443,https://doi.org/10.1093/ejil/chv020
97
Compromis, ¶ 7
98
Indigenous and Tribal Populations Convention International Labour Organization, Convention
No. 169, June 27, 1989.
99
Compromis, ¶ 3
32
of indigenous peoples100 and the UNDRIP which, vis a vis, protects th indigenous people’s

cultural heritage and tradition.101

Also, Ayasa did not violate the ICCPR and the ICESCR. The Ramigian Citizens were never

subjected to arbitrary or unlawful interference nor to unlawful attacks on their honour and

reputation.102 It was, in fact, the Council of Elders wo violated Article 9 (1) of the ICCPR which

prohibits unlawful and arbitrary detention103 when it detained one of the Rylov reserachers until

dawn.104

B. THE CULTURAL PRACTICES OF OMELOI SUCH AS THE HUACASERA

RITUAL CANNOT PREVAIL OVER PUBLIC EMERGENCY

1. A public health emergency of international concern exists.

It is wrong to invoke protection of tradition and cultural identity, which is a de facto right,

to prevent individuals from receiving exact and adequate information on the causes of their

illnesses and obtaining effective treatment105 during a public health emergency of international

concern. A PHEIC is an extraordinary event which is determined to constitute a public health risk

to other States through the international spread of disease and to potentially require a coordinated

international response.106 Consequently, the emergence of the Purahuaca Harvest and Research

Arrangement which provides for the methods of harvesting the Purahuaca plants and the

subsequent processing of the same assure that medical service and attention would create more
100
ILO Convention C169
101
United Nations Permanent Forum on Indigenous Issues. "Frequently Asked Questions –
Declaration on the Rights of Indigenous Peoples", January 15, 2012.
102
Joslin v New Zealand (2002) Comm. No. 902/1999 U.N. Doc. A/57/40 at 214 (2002)
103
Human Rights Committee, General Comment No. 29 – States of Emergency (article 4),
CCPR/C/21/Rev.1/Add.11, (2001), para.2.
104
Compromis, ¶ 19
105
Inter-American Commission on Human Rights (IACHR), Annual Report of the Inter-
American Commission on Human Rights 2011, 2012
106
International Health Regulations, 2005.
33
effective versions of the drug.107 It must again be stressed that Ayasan citizens have a right to

high-quality health care, regardless of the medicine they are dealing with.108

2. The public health emergency in Ayasa constitute a fundamental change of

circumstances.

Under the principle of rebus sic stantibus which is an accepted customary doctrine 109

following the Fisheries Jurisdiction case, codified in Article 62 of the Vienna Convention on the

Law of Treaties (‘VCLT’),110 a Contracting Party may be freed from its obligations where the

circumstances leading to the conclusion of a treaty have changed.111

The foundation of the formulation of the Purahuaca Harvest and Research Arrangement

are the agreed methods of harvesting the purahuaca plants and the subsequent processing of the

same in consultation with the Council of Elders of the Omeloi. 112 It provided that in all

undertakings in relation to the harvesting and processing of the purahuaca, the traditional

preparation will be preferred.113 However, this provision of the PHR Agreement also provides that

when the situation demands, it may resort to other methods which would create more effective

versions of the drug.114 The reoccurrence and severity of the Limara outbreaks115 could not have

been foreseen by Ayasa. Besides, Ramigo remained passive and allowed the Limara disease to

107
PHR Agreement, ANNEX B, Article 20.
108
Inter-Agency, Inter-agency Field Manual on Reproductive Health in Humanitarian Settings,
2010, available at: http://www.refworld.org/docid/4d08d5422.html [accessed 11 October 2018]
109
A. Racke GmbH & Co. v. Hauptzollamt Mainz, C-162/96, 3 COMMON MKT L. REP. 219, at
229 (1998).
110
Fisheries Jurisdiction Case (UK. v Iceland) 1974 I.C.J, 36
111
Árnadóttir, Termination of Maritime Boundaries Due to a Fundamental Change of
Circumstances Utrecht Journal of International and European Law, vol.32, 2016, 1
112
PHR Agreement, Annex B, Article 20.
113
Ibid at note 70
114
Ibid at note 70
115
Compromis, ¶ 16,20, 32,34.
34
further spread the virus. This resulted in many more human and indigenous fatalities. 116 It is

without question that Ayasa could not allow this threat to continue and that a fundamental change

of circumstance has occurred.

3. There is a failure on Omeloi’s part to participate on issues affecting them

The United Nations system and other intergovernmental organizations contribute to the

mobilization, inter alia, of financial cooperation and technical assistance to ensure that ways and

means of ensuring participation of indigenous peoples on issues affecting them shall be

117
established. Ayasa cannot be accused of illegal harvesting under Article 20 of the Lusewa

Rainforest and River System Protection Agreement when they cut 75 more purahuaca trees

because the arrangement was valid for one year and researchers were allowed to extract more if

the need arose.118

Given that the Organization for Animal Health has described outbreaks as a global public

health concern, any state “cannot afford to miss the early signals” of a possible human influenza

pandemic.119 It is submitted that in this case, despite Ramigo’s knowledge on the results of the

studies of Dr. Li Chae-jen and Dr. Ela Nadajo of Center for Research on Tropical Medicine in the

National University of Pattali that there are no limara cases in Omeloi tribe; smoking ritual drove

away the mosquitoes; purahuaca has malaria-treating capabilities; and that it can cure any

suffering,120 Ramigo did not enter into any agreements which may have prevented the outbreaks.

This is contrary to Article 15 of the CBD which necessitate Ramigo to share in a fair and

116
Compromis, ¶ 32
117
UNDRIP, Article 41.
118
Compromis, ¶ 25.
119
M S. Green et al, ̳When is an Epidemic an Epidemic?‘2002 IMAJ Vol 4
120
Compromis, ¶ 13.
35
equitable way the results of research and development and the benefits arising out of the

utilization of genetic resources.121

B. ALTERNATIVELY, AYASA’S WRONGFULNESS IS PRECLUDED BY

NECESSITY.

1. The acts of Ayasa in harvesting and grafting the purahuaca trees were justified

under the doctrine of necessity:

The ICJ concluded in the Gabcikovo-Nagymaros Project that under customary

international law, several conditions must be present for a state of necessity to exist. 122 Ayasa

satisfactorily showed that the act (a) must have been occasioned by an ‘essential interest’ of the

acting state; (b) that interest must have been threatened by a ‘grave and imminent peril,’ and (c)

the act being challenged “must have been the ‘only means’ of safeguarding that interest. 123

Furthermore, (d) “the state which is the author of that act must not have ‘contributed to the

occurrence of the state of necessity.”124 These elements are satisfied in the instant case.

a. The protection of human health and the environment are “essential interests”

of Ayasa.

Protecting the lives of its citizens and environment clearly constitutes Ayasa’s ‘essential

interests. As noted in the Commentary on the ILC Articles, an ‘essential interest’ is to be decided

on a case-by-case basis and does not refer exclusively to preserving the existence of the state. 125

121
CBD, Article 15, ¶7.
122
State of Necessity as an Exemption from State Responsibility for Investments, Marie Christine
Hoelck Thjoernelund, University of Heidelberg, March 2008, p.435.
123
Gabcikovo-Nagymaros (Hung. v. Slovk.), 1997 I.C.J., 52
124
Ibid at note 88
125
Crawford, International Law Commission’s Articles On State Responsibility: Introduction,
Text And Commentaries (2002), 183
36
Examples include the economic survival of a state, the survival of a sector of its population, and

the preservation of the environment of its territory or a part thereof.126

b. The interests of Ayasa was threatened by a “grave and imminent peril” and the

harvesting and grafting is the “only means” of safeguarding those interests.

For a peril to be “grave and imminent,” it must not only be a threat to the interest at the

time the measures were taken,127 it must also be a threat to the interest at the actual time. 128 It is

irrelevant that another limara outbreak may not have occurred immediately: a peril may be grave

and imminent even if it threatens long-term rather than immediate consequences. 129 A peril, is not

rendered less certain and inevitable by the mere fact that its realization might be far off. 130

The cost of possible alternatives to internationally unlawful conduct is not a determinative

factor in evaluating whether the conduct was the only means available.131 For the conduct to

qualify as the only means, the additional cost of the alternative means must be of such magnitude

that to resort to it would threaten an essential interest of the state. 132 Given the fact that Ramigo is

a more developed state133, despite its knowledge of the need to formulate a cure of the limara

diesease, it failed to implement measures to address the spread of infection134. Ayasa had no

126
Yearbook of the International Law Commission, vol. II, Part One (1980), 2
127
Supra note 49, 54
128
Gabčíkovo-Nagymaros, 1997 I.C.J. at 42.
129
Fitzmaurice, Necessity in International Law, Netherlands Yearbook of International Law,
vol.41, 2011, 177
130
Ibid at note 129
131
United Nations International Human Rights Instruments, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies , 12 May 2004
132
Boed, State of Necessity as a Justification for Internationally Wrongful Conduct, Yale Human
Rights and Development Journal vol.3, 2014, 18
133
Compromis, ¶ 5.
134
Compromis, ¶ 34.
37
option but to unilaterally act to the best of its ability to protect its citizens’ food supply, and

economy.135

c. The harvesting did not seriously impair an essential interest of Ramigo.

To rely on the doctrine of necessity, the essential interest being safeguarded must be of

greater importance than the interest of the foreign state being sacrificed. 136 While Ayasa’s act of

harvesting more that 75 purahuaca trees and grafting may have an impact upon Omeloi’s cultural

heritage,137 it is only one sector of Omeloi’s cultural tradition. 138 Ayasa’s dying citizens 139 due to

the limara outbreak forms the very heart of its developing nation. The health of Ayasa’s citizens,

as well as the survival of its economy, clearly outweighs any potential loss occasioned to

Omeloi’s’ cultural heritage protected by UNESCO.140

d. Ayasa did not “contribute to the occurrence of the state of necessity.

The 2015 and 2018 limara outbreaks were due to Fersila island’s extreme weather

condition,141 a finding not contested by Ramigo. Despite being a more developed country, the

latter did not take any steps to help prevent the repeated outbreaks. The situation of necessity is

thus attributable to Ramigo, not to Ayasa.

IV. Ayasa rightfully acquired intellectual property rights over the plant

1. AYASA MET ALL THE CRITERIA OF PATENTABILITY

135
Compromis, ¶ 16.
136
U.N.Doc.A/CN.4/318/Add.5-7, 20
137
PHR Agreement, Annex B, Article 35, ¶1.
138
Compromis, ¶ 11.
139
Compromis, ¶ 34.
140
Supra at note 102
141
Compromis, ¶ 12.
38
 142
As a legal document granted by a government giving exclusive rights to the inventor, a

patent is awarded to the one who “invents” or “discovers” as a rewardfor his/her work. 143 The

exclusive privilege granted to the inventor gives the patent holder the right to manufacture use or

sell the patented product144 provided that it meets the three required criteria before a patent

protection can be applied. It has to be 1) new, 2) non-obvious, and 3) useful.145

a. The discovery is new

The newness requirement is difficult to prove for Indigenous Peoples because cultural

knowledge is passed down from generation to generation. 146 In essence, an invention will not be

considered new if it contains all the elements of a previously claimed invention; if, however, one

of the elements is new then the invention will be considered different from the previous

invention.147 Contrary to the claim of the Omeloi’s that the Drug was patented without

recognition of tribes contribution to its development and process,148 still, it cannot be denied that

there is yet any printed publication regarding the smoking process of the puruhuaca.

142
David A. Burge, Patent And Trademark Tactics And Practice 27(1999).
143
F.H. Erbish, Intellectual Property Rights In Agricultural Biotechnology 8 ( K.M. Maredia Ed.,
1998).
144

See John F. Murphy & Alan C. Swan, Cases And Materials On The Regulation Of International
Business And Economic Relations 188 (1999).
145

Ibid at note 144

146
See A. Samuel Oddi, Trips—Natural Rights and a “Polite Form of Economic Imperialism, 29
VAND. J.
147
BURGE, supra note 9, at 42.
148

Compromis Paragraph 29

39
 b. The invention is not obvious

The non-obvious requirement is designed to advance the state of useful arts149 by limiting the

issuance of patents. In the patentability of microorganisms, the US Supreme court held in the

Diamond v. Chakrabarty,150 that human- made microorganism is a patentable subject matter

provide that the discovery is ‘any’ new or useful ‘manufacture’ or ‘composition of matter.’” 151

This case has allowed pharmaceutical and agrochemical companies to appropriate Indigenous

Peoples’ plants by taking them back to the laboratory and extracting the “active” ingredient and

claiming it as their own invention.152 Compulsory licenses are allowed in situations where there

are overriding political or social objective that require a compulsory license. 153 TRIPS provides

limited exceptions154 to this right of exclusivity under which, compulsory licenses are allowed. 155

Besides, the most best evidence of right the Omeloi’s have is the declaration of the UNESCO as

a World Heritage Site due to its “outstanding universal value from the point of view of science or

conservation.”156

149
The term art comes from Article I, Section 8 of the U.S. Constitution, “Science and Useful
Arts”
150
Diamond v. Chakrabarty 447 U.S. 303 (1980).
151

Ibid at note 150.

152

Ibid at note 150

153
L L. Hicks & J R. Holbein, ―Convergence of National Intellectual Property Norms in
International Trading Agreements
154
Article 30 of TRIPS reads ―Exceptions to Rights Conferred‖.
155
J.H. Reichman, ―Universal Minimum Standards of Intellectual Property Protection under the
TRIPS Component of the WTO Agreement‖, 1995, 29 INT‘L L. 345
156
Compromis, ¶ 3
40
 c. It satisfies the utility or usefuleness requirement

The third element assessed under an application for a patent requires that an invention must

be capable of achieving some minimal useful purpose. 157 Verily, it has been shown that the

huacaxin proved to be 95% effective.158

2. The patent was granted in the situation of national emergency

The Declaration on the TRIPS Agreement and Public Health grants to each Member the right

to determine what constitutes a national emergency. 159 The Declaration lists "HIV/AIDS, TB, and

malaria" as examples of epidemics that would trigger a national emergency,160 but do not limit a

national emergency to these three epidemics. Limara, in the light of the meaning of “epidemic,”

is something that spreads rapidly and extensively by infection and affects many individuals in an

area or population at the same time.161

i. There is a waiver of negotiation

Since the compulsory license for the Huacaxin was granted in the milieu of public health

crisis, the requirement of prior negotiation is waived. 162 The waiver of prior negotiation applies

when patents are used for public purposes. In this situation, “national emergency” and “extreme

157
See Leanne M. Fecteau, The Ayahuasca Patent Revocation: Raising Questions About Current
U.S. Patent Policy, 21 B.C. THIRD WORLD L.J. 69, 76 (2001).
158
Compromis, ¶ 26
159
Declaration on the TRIPS Agreement and Public Health. Adopted on 14 November 2001
160
Declaration on the TRIPS Agreement and Public Health. Adopted on 14 November 2001,
WT/MIN(01)/DEC/2.para. 5(c).
161
M S. Green et al, ̳When is an Epidemic an Epidemic?‘2002 IMAJ Vol 4
162
Article 31bis (1) Annex To The Protocol Amending The TRIPS Agreement,WT/L/641, 8
December 2005
41
urgency” are valid basis of waiver.163 Furthermore, the Implementation of Paragraph 6 of the

Doha Declaration on the TRIPS Agreement and Public Health explicitly alters Article 31(f) to

permit a waiver of this requirement.164 The obligations of an exporting Member under Article

31(f) shall not apply with respect to the grant by it of a compulsory license to the extent

necessary for the purposes of production of a pharmaceutical products. 165 The term “other

circumstances of extreme urgency” make clear that a waiver of the prior negotiation requirement

does not depend upon the formal declaration of national emergency.166

ii. The payment of royalties will cause unreasonable prejudice to Ayasa

Like other IPRs, patents are granted in the public interest, and not merely to allow the patent

owners to obtain the economic returns anticipated from a patent‘s grant of market exclusivity. 167

Since the primary goal of TRIPS is to balance the interests of the patent holder and the third

parties,168 both the legitimate interest of the patent holders and the legitimate interest of thirds

parties, such as consumers, must be taken into account in awarding a patent. In fact, when

examining the words of limiting conditions in Article 30 of the TRIPS agreement, public health

has been given a prime importance, as provided in Article 8.1 of the same agreement. 169
163
UNCTAD-ICTSD (eds.), ̳Project on IPRs and Sustainable Development, Resource Book on
TRIPS and Development‘ (CUP, Cambridge 2005) 471
164
Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public
Health: Decision of 30 August 2003, WT/L/540, para. 2.
165
Ibid at note 162
166
UNCTAD-ICTSD (eds.), ̳Project on IPRs and Sustainable Development, (CUP, Cambridge
2005) 471.
167
K. Yu Peter, The Objectives And Principles Of The TRIPS Agreement
168
A Gupta,‖ Patent Rights on Pharmaceutical Products and Affordable Drugs, 2004 2 buff. Intell.
Prop. L.j. 127
169
Panel Report, Canada—Patent Protection of Pharmaceutical Products, WT/DS114/R [7.26];
Peter K. Yu, The Objectives And Principles Of The TRIPS Agreement,993
42
Moreover, in exceptional cases, compulsory licenses may also be issued to allow manufacturing

of generic versions of patented Pharmaceuticals during a public health crisis, in which the public

interest would prevail over the private interests of patent owners.170

It must also be stressed that Ayasa had already paid the Omelois for the harvest of Puruhuaca
171
trees amounting to $5 million for 25 trees in the testing phase for the extraction of plants and

the payment for damages caused to the ancestral lands. 172 To that end, the action of Ayasa in

acquiring a patent over the Huacaxin173 drug falls within the ambit of Article 30.174

3. What is being patented is the chemical composition

The main purpose of patent law is to protect the interest of the inventor of the patent and to

inform the public of the protected rights.175 Claims must be particular and distinct.176 In the

absence of which, there is no non-infringement. 177

Huacaxin specifically treats Limara Disease and such claim did not incorporate the 7-day

ritual process known as the Huacasera Ritual. 178 Thus the use of Purahuaca trees in mitigating the

widespread of Limara disease, when Rylov patented the Huacaxin using modern technologies, is

rightfu lly recognized as an unknown invention at the time of patentability. This extended

170
TRIPS, Access To Medicines And The "North-South" Conflict After Doha: The End Or The
Beginning?‖ 2006, 6 Asper Rev. Int'l Bus. & Trade L. 67
171
Compromis, ¶ 21
172
Compromis, ¶ 20
173
Compromis, ¶ 26
174
TRIPS
175
William Ralston : Foreign Equivalents of the U.S. Doctrine of Equivalents: We're Playing in
the Same Key But It's Not Quite Harmony, Chicago-Kent Journal of Intellectual Property, spring
2007, 12
176
White v. Dunbar, 119 U.S. 47, 52 (1886).
177
Electric & Musical Industries Ltd v Lissen Ltd (1938) 56 RPC 23, 57
178
Compromis, ¶ 10
43
coverage defies the basic premises of patent law that inventions should receive protection only

when disclosed, and that the disclosure of a broader scope of invention dedicates what is not

claimed to the public.179 The Omeloi’s have no claim over the use of purahuaca trees in the

Huacaxin relating it to be an equivalent of the smoking ritual which drove away the

mosquitoes.180 To give the world something new is valid for protection, thus the argument is even

stronger when technical difficulties are overcome to achieve it. 181 The protection of Huacaxin is

protection of the chemical combination that makes up Huacaxin.

4. Similarly, the patent issued is valid and no biopiracy was committed.

Ramigo has the burden of showing182 that Ayasa infringes the former’s inexistent patent. An

alleged infringer is not required to go forward with evidence to suggest that his conduct does not

infringe the rights of the patent owner. To the contrary, the burden rests squarely on the shoulders

of the patentee.183 In Markman v. Westview Instrument, Inc., the Federal Circuit and Supreme

Court both held that interpretation of a patent's claim language is an issue for the court to

decide.184

179
Joshua Sarnoff a: Abolishing the Doctrine of Equivalents and Claiming the Future after Festo,
180
Compromis, ¶ 13
181
W.R.Cornish, Intellectual Property,(3rd Edition, Sweet & Maxwell Publication 1996) 179
182
David V. Radack, Injunctions in Patent Infringement Cases,JOM 49 (12) (1997), p. 56
available at http://www.tms.org/pubs/journals/jom/matters/matters-9712.html
183
M.A. Cunningham, ―Preliminary Injunctive Relief In Patent Litigation, PTC Research
Foundations of the Franklin Pierce Law IDEA: The Journal of Law and Technology
184
John G. Mills,‖ The Developing Standard for Irreparable Harm InPreliminary InjunctionsTo
Prevent Patent Infringement‖ 1999 ,81 J. Pat. & Trademark Off. Soc'y 51.
44
In fact, the Rylov researchers have been able to extract, “improve”, and patent both the drug and

the smoking process.185 The patent system is also very effective in ensuring that intellectual

property rights are used. In conjunction with the benefits it presents, the basic utilitarian

justification for the patent system is that it provides incentives to ‘promote the progress of

science’.186 Intellectual Property rights protect innovation and creations and reward innovative

and creative activity”.187 The patent system is a reward system as society has a “moral obligation

to compensate and to reward the inventors”.188

PRAYER FOR RELIEF

185
Emily Marden, The Neem Tree Patent: International Conflict over the Commodification of
Life, 22 B.C. INT’L & COMP. L. REV. 279, 280 (1999).
186
Moore, ‘Intellectual Property – Moral, Legal and International Dilemmas’ – page 30
187
Holyoak and Torremans, ‘Intellectual Property Law’ 2nd ed. Butterworths [1998] – page 12
188
Ibid at note 187
45
 The Republic of Ayasa respectfully requests this Court to adjudge and declare:

I.

The Confederation of Ramigian Nations is liable for the worsening of the outbreak due to the

loss of cultivated plants.

II.

The Confederation of Ramigian Nations violated Environmental Laws by burning the border

trees

III.

The use of the plant by Ayasa’s citizens is a violation of indigenous peoples’ rights

IV.

The Republic of Ayasa has rightfully acquired intellectual property rights over the plant

46