IN THE INTERNATIONAL COURT OF JUSTICE,

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

Case concerning Bio-Ethics, Bio-Dumping & Bio-Legislation

Panacea

Applicant

v.

Agrotera

Respondent

MEMORIAL FOR THE RESPONDENT

 ii

Index of Authorities
TREATIES AND OTHER INTERNATIONAL INSTRUMENTS

1. African Convention on the Conservation of Nature and Natural Resources, 15

September, 1968
2. Agreement Establishing the World Trade Organization, Marrakesh 15 April 1954
3. Agreement on Technical Barriers to Trade, Annex 1A to the Agreement
establishing the World Trade Organization
4. Cartagena Protocol on Biosafety to The Convention on Biological Diversity,
Montreal 2000
5. Convention on Biological Diversity, 5 June 1992
6. Convention on the Conservation of Nature in the South Pacific, Apia, 12 June,
1976
7. EU Birds Directive (79/409/EEC) Directive on the Conservation of Wild Birds
8. International Convention for the Protection of Birds signed at Paris on 18th
October 1950.
9. Vienna Convention on the Law of Treaties, Vienna, 23 May 1969

JUDICIAL AND ARBITAL DECISIONS

1. Alan J. Wolff v. Aventis Cropscience USA Holding, Inc. 2001 U.S. Dist. LEXIS
24266.
2. Vellore Citizens Welfare Forum v Union of India, AIR 1996 SC 2715

STATUTES
1. Australian Environment Protection and Biodiversity Conservation Act, 1999
2. Draft Biotech Policy of Nigeria
3. Statute of the International Court of Justice

WORKS OF PUBLICISTS

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1. Dr. Joseph Mercola, Genetically Modified Corn Spreading to Protected Wild

Corn, available at http://www.mercola.com/2001/dec/12/gm_corn.htm
2. George Monbiot, The Covert Biotech War available at
http://www.globalpolicy.org/socecon/develop/africa/2002/1119biotech.htm
3. GM and the Third World, available at
http://www.geneticfoodalert.supanet.com/gmfood2.htm
4. Marc Agren, Rescue From the Edge of Extinction, available at
http://www.malakos.com/Journal/articles/partodissey.html
5. TESTS FOR GENETIC CORN SPUR CONCERNS AMOUNTS OF DISPUTED
VARIETY FOUND IN 10% OF US GRAIN INSPECTIONS, available at
http://nl.newsbank.com/nl-search/we/Archives?
p_product=BG&p_theme=bg&p_action=search&p_maxdocs=200&p_text_search
-0=starlink%20AND%20corn&s_dispstring=starlink%20corn%20AND
%20date(2001%20to%202002)&p_field_date-0=YMD_date&p_params_date-
0=date:B,E&p_text_date-0=2001%20to
%202002&p_perpage=10&p_sort=YMD_date:D&xcal_useweights=no
6. Tina Rosenberg, The Free Trade Fix, available at
www.nytimes.com/articles/63896/2002/aug/235657.asp

TREATISES AND BOOKS

1. Ian Brownlie, Principles of International Law, 5th ed. (Oxford: Clarendon Press,
1998)
2. Malcolm N. Shaw, International Law, (Cambridge: Cambridge University Press,
1997).
3. Peter Malanczuk, Akehurst’s Modern Introduction To International Law

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STATEMENT OF JURISDICTION

In accordance with Article 40(1) of the Statute of the International Court of justice, the
nations Panacea and Agrotera have submitted an agreement to this Court for the
settlement of all differences concerning Bio-Ethics, Bio-Dumping and Bio-Legislation
with reference to BT Corn, its effects & implications and related trade restrictions.
Pursuant to Article 36(1) of the Statute, this Court has jurisdiction over the disputes
referred to it by the Parties. The parties have agreed to be bound by the decision of this
Court determining legal consequences, including the rights and obligations of the Parties,
regarding the issues stated.

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Statement of Facts

1. Agrotera, a developing country, was sold a Genetically Modified Variety of

corn, BT-corn, by its prosperous and developed neighbour Panacea, through
Amon-Biotech, a company wholly owned by the Government of Panacea.
2. A year after the introduction and use of BT-corn, which 40% of Agrotera’s
farmers used, an environmental group SPBA (Society for Protection of Birds
in Agrotera) recorded an alarming rise in bird fatalities and changing
migratory patterns.
3. BPB, the Board for Protection of Biodiversity, a governmental organ,
conducted an inquiry into the matter. They concluded that changes were due to
the increase in aqua sports in the waterfronts.
4. SPBA conducted an independent inquiry into the matter which placed the
blame squarely on BT contamination of Fenugreek Leaves.
5. The issue was raised before the Apex Court of Agrotera by SPBA. The Apex
Court issued strict guidelines on the use and testing of BT-crops.
6. Amon-Biotech, had some difficulties in complying with the guidelines.
7. The two countries exchanged diplomatic notes. The Government of Panacea
raised an issue to the Government of Agrotera claiming that the guidelines
violated principles of international trade with respect to genetically modified
yields, and claimed substantial damages.
8. The Government of Agrotera counterclaimed that Amon and the Government
of Panacea were indulging in Bio-dumping and interfering with the
conservation of bio-diversity at Agrotera.
9. The Government of Panacea, and the Government of Agrotera, have agreed to
submit the dispute to the International Court of Justice.

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Statement of Issues

1. Whether Agrotera has violated any fundamental norms of international trade by

issuing guidelines for the testing and use of BT-Crops?
2. Has not Panacea tried to abuse its power as a developed economy to attempt to
take control of Agrotera’s agricultural sector?
3. Has not Panacea dealt a staggering blow to the delicate ecological balance in
Agrotera, as well as to the prospects for eco-tourism?
4. Has not Panacea violated the bilateral agreement on Preservation of Nature and
Natural Resources existing between itself and Agrotera?
5. Whether Agrotera is liable to pay any damages to the State of Panacea?

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Summary of Pleadings

Issue:
1. Whether Agrotera has violated any fundamental norms of international trade by
issuing guidelines for the testing and use of BT-Crops?
Summary of Pleading:
1. Agrotera has not violated any fundamental norms of international trade. It is well
within its rights in issuing guidelines. Article 2.2 of the Technical Barriers to Trade,
Article 14(1)(a) of the Convention on Biological Diversity, Article 3A(b) of the
Australian Environment Protection and Biodiversity Conservation Act, 1999, and Section
16(4) of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity
all are in favour of Agrotera’s actions. Acting on the Precautionary Principle, and keeping
in mind various cases, Agrotera has taken these steps.

Issue:
2. Has not Panacea tried to abuse its power as a developed economy to attempt to
take control of Agrotera’s agricultural sector?
Summary of Pleading:
2. Panacea has abused its power as a developed economy, and has tried to take over the
agricultural sector of Agrotera. BT-Crops are inherently such that organic crops slowly
get supplanted. Corn is in important crop in Agrotera, and the profits to be made are
immense. Panacea is attempting to get control of the Corn Growers in Agrotera so that its
profits continue to flow undisturbed. It has not introduced BT-corn through any feeling of
altruism, but only because of the profit motive.

Issue:
3. Has not Panacea dealt a staggering blow to the delicate ecological balance in
Agrotera, as well as to the prospects of eco-tourism?
Summary of Pleading:
3. Agrotera is an tropical island, with a closed and delicate ecological balance. Panacea,
by the introduction of BT-Corn, has affected this delicate balance. The introduction of
even one new factor can severely affect the bio-diversity. Moreover, by driving away the

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migratory species, Panacea has caused considerable harm to Agrotera’s prospects of

developing eco-tourism as a viable means of earning revenue.

Issue:
4. Has not Panacea violated the bilateral agreement on Preservation of Nature and
Natural Resources existing between itself and Agrotera?
Summary of Pleading:
4. Panacea has violated the existing bilateral agreement. The various articles that have
been violated are, Article 4(2) and Article 5 of the EU Council Directive -79/409/EEC,
Article V(1) of the Convention of Conservation of Nature in the South Pacific and Article
XVI of the African Convention on the Conservation of Nature and Natural Resources. It
has also violated Principle 15 of the Report of the United Nations Conference on
Environment and Development. Therefore it has violated the bilateral agreement on
Preservation of Nature and Natural Resources.

Issue:
5. Whether Agrotera is liable to pay any damages to the State of Panacea?
Summary of Pleading:
5. Agrotera is not liable to pay any damages whatsoever to the State of Panacea, or to
Amon-Biotech for the reasons listed in the preceding issues. There is no liability arising
from any of Agrotera’s actions. Therefore, Panacea’s claim for damages is not valid in the
slightest.

Pleadings

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I. WHETHER AGROTERA HAS VIOLATED ANY FUNDAMENTAL NORMS OF

INTERNATIONAL TRADE BY ISSUING GUIDELINES FOR THE TESTING
AND USE OF BT-CROPS?

Agrotera has not violated any fundamental norms of international trade. It is well within
its rights in issuing such guidelines for the use and testing of BT-Crops. Article 2.2 of the
Agreement on Technical Barriers to Trade1, to which both countries are signatories,
clearly states that technical regulations may be adopted in pursuance of legitimate
objectives of, inter alia, protection of animal or plant life or the environment.
Article 14(1)(a) of the Convention for Biological Diversity 1992, which both countries
have ratified, states that:
“Each Contracting Party, as far as possible and as appropriate shall introduce
appropriate procedures requiring environmental impact assessment of its proposed

1
Members shall ensure that technical regulations are not prepared, adopted or applied or applied with a
view to or with the effect of creating unnecessary obstacles to international trade. For this purpose,
technical regulations shall not be more trade restrictive that necessary to fulfill a legitimate objective,
taking account of the risks non-fulfillment would create. Such legitimate objectives are, inter alia: national
security requirements; the prevention of deceptive practices; protection of human health or safety, animal or
plant life or health , or the environment. In assessing such risks, relevant elements of consideration are,
inter alia: available scientific and technical information, related processing technology or intended end-
uses of products.

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projects that are likely to have significant adverse effects on biological diversity
with a view to avoiding or minimizing such effects and, where appropriate, allow
for public participation in such procedures.”
Article 3A(b) of the Australian Environment Protection and Biodiversity Conservation
Act, 1999, which is similar to, but less comprehensive than Environmental Laws of
Agrotera also makes it clear that scientific certainty is not necessary if there is imminent
danger to the environment.2
Moreover, Agrotera has not banned the import of BT-Corn, which might possibly be
viewed as an obstacle to international trade. It has merely instituted guidelines for the
testing of such crops. In view of incidents involving GMO’s3, this caution is not only
laudatory, it is necessary. One of the most recent incidents is the Starlink Corn incident,
of 2000. This variety of corn, produced by Aventis Crop Services Inc. (a US company),
was genetically engineered to produce a protein that would be poisonous to insect larvae.
StarLink corn was approved only for animal consumption, because of possible allergic
reaction in humans. Farmers were required to have a buffer zone of 660 feet around the
corn to prevent possible cross-pollination. However, despite these precautions, ordinary
corn was cross-pollinated, and traces of Starlink corn started showing up in products
meant for humans, most famously Taco Bell tacos. The EPA4 stopped the sale of this
genetically modified variety of corn, and the US govt. is even now buying back all
shipments of Starlink Corn. The damage this crop did to the US economy, one of the
strongest in the world, if not the strongest was significant. Corn prices dropped
nationwide, seed prices went up, and there were various other ancillary expenses.5
Another incident involves the spread of genes from genetically modified corn spreading
into wild corn in Mexico. Genes from genetically modified corn that is widely grown in
Canada and the United States are spreading in remote mountainous regions of México.
2
If there are threats of serious or irreversible environmental damage, lack of full scientific certainty should
not be used as a reason for postponing measures to prevent environmental degradation;
3
Genetically Modified Organisms
4
Environmental Protection Agency, a US Government agency which handles any form of environmental
damage.
5
Alan J. Wolff v. Aventis Cropscience USA Holding, Inc. 2001 U.S. Dist. LEXIS 24266, available at
http://www.lexis.com/research/retrieve?
_m=94712465ced5224e0786301961732b08&docnum=1&_fmtstr=FULL&_startdoc=1&wchp=dGLbVlz-
lSlll&_md5=767ef605e1ae01276506ea90e3b1a134 (last visited on 16th January, 2003)

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Up to 70% of wild Mexican maize now carries transgenes6 that could only have come
from genetically engineered crops. The transgenes, which scientists borrow from viruses
and bacteria, have been engineered into GM crops7.
These incidents give fresh life to the specter of Genetic Modification. Genetic Science,
though one of the fastest growing fields of science, does not have all the answers. It may
never have all the answers. In this event, issuing guidelines for the testing and use of BT-
Corn, before its widespread marketing is only common sense. Agrotera is after all still a
developing economy, a newcomer to the world of international trade as symbolized by
the WTO agreement. If the US economy can get affected by a crop, which was being
used by only 0.4%8 of the corn farmers there, than the damage that could be caused to
Agrotera’s developing economy, which is nowhere as strong as the US economy, and
where 40% of the farmers are using this corn, is potentially catastrophic. The
Government of Agrotera bears a responsibility to its citizens. To protect their livelihood,
to provide a better standard of living, to maintain their way of life, are just some parts of
that responsibility. That it did not impose such guidelines from the very beginning is a
fact that the Government of Agrotera deeply regrets. However, once knowledge of this
lacuna was brought before the Apex Court by public-minded citizens, it immediately took
steps.
Section 16(4)9 of the Cartagena Protocol on Biosafety to the Convention on Biological
Diversity, underlines the importance of testing GM crops. Though big corporations may
claim that their product is 100% safe, that fact remains that not enough is known about

6
Genes used in in transgenesis. Transgenesis: The transfer of cloned genetic material from one species or
breed to another. http://dictionary.reference.com/search?q=transgenesis (last visited on 17th January, 2003)
7
Dr. Joseph Mercola, Genetically Modified Corn Spreading to Protected Wild Corn, available at
http://www.mercola.com/2001/dec/12/gm_corn.htm (last visited Jan 19th, 2003)
8
TESTS FOR GENETIC CORN SPUR CONCERNS AMOUNTS OF DISPUTED VARIETY FOUND IN
10% OF US GRAIN INSPECTIONS, available at http://nl.newsbank.com/nl-search/we/Archives?
p_product=BG&p_theme=bg&p_action=search&p_maxdocs=200&p_text_search-0=starlink%20AND
%20corn&s_dispstring=starlink%20corn%20AND%20date(2001%20to%202002)&p_field_date-
0=YMD_date&p_params_date-0=date:B,E&p_text_date-0=2001%20to
%202002&p_perpage=10&p_sort=YMD_date:D&xcal_useweights=no ,( last visited on 20th January, 2003)
9
Without prejudice to paragraph 2 above, each Party shall endeavour to ensure that any living modified
organism, whether imported or locally developed, has undergone an appropriate period of observation that
is commensurate with its life-cycle or generation time before it is put to its intended use.

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GM crops to be absolutely sure. Thalidomide (though not a GMO, this too was a
scientifically developed product) was supposed to be completely harmless too.10
Therefore, in light of all these facts, Agrotera was perfectly justified in issuing guidelines
for the use and testing of BT-Corn.

II. HAS NOT PANACEA TRIED TO ABUSE ITS POWER AS A DEVELOPED

ECONOMY TO ATTEMPT TO TAKE CONTROL OF AGROTERA’S
AGRICULTURAL SECTOR?

In the dog-eat-dog world of today, it is unfortunately becoming more and more common
to find companies, and the people heading them, putting profits over everything else,
including human lives. One of the side-effects of using GM corn is that it slowly takes
over natural corn too. Owing to the nature of corn pollination11, GM corn plants can
pollinate others which are large distances away. This leads to trickling down of the BT
gene into natural corn. The real problem with engineered crops is that they permit the big
biotech companies to place a padlock on the food chain. By patenting the genes and all
the technologies associated with them, the corporation can maneuver themselves into a
position from which they can exercise complete control over what the people of Agrotera
eat. This has devastating implications for food security in poorer countries, and
developing economies.

10
Thalidomide (tha-lid-o-mide) was first marketed in Europe in the late 1950's. It was used as a sleeping
pill and to treat morning sickness during pregnancy. At that time no one knew thalidomide caused birth
defects. Tragically, when thalidomide was used by pregnant women, it resulted in the birth of thousands of
deformed babies. In 1961 scientists discovered that the medication stunted the growth of fetal arms and
legs. In fact, taking only one dose of thalidomide early in pregnancy can severely affect the growth of fetal
limbs (arms, legs, hands, feet). It also puts the fetus at risk of other injuries, including eye and ear defects
and severe internal defects of the heart, genitals, kidneys, digestive tract (including lips and mouth), and
nervous system. http://www.fda.gov/cder/news/thalidomide.htm (last visited on 14th January, 2003)
11
Pollen grains are borne in anthers, each of which contains a large number of pollen grains. The anthers
open and the pollen grains pour out in early to mid morning after dew has dried off the tassels. Pollen is
light and is often carried considerable distances by the wind. Corn Pollination - An Overview, available at
http://ohioline.osu.edu/agf-fact/0128.html (last visited on 23rd January, 2003)

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This pattern has been seen before. In fact, it has been used under the guise of “aid”. In the
countries of Zambia, Zimbabwe and Malawi, all of which are suffering from the current
famine, US international development agency, USAID has informed them that there is no
option but to make use of GM crops from the United States. This is simply untrue.
Between now and March 2003, the region will need up to 2m tonnes of emergency food
aid in the form of grain. The UN's Food and Agriculture Organisation says that there are
1.16m tonnes of exportable maize in Kenya, Tanzania, Uganda and South Africa. Europe,
Brazil, India and China have surpluses and stockpiles running into many tens of millions
of tonnes. Even in the US, more than 50% of the harvest has been kept GM-free. All the
starving people in southern Africa, Ethiopia and the world's other hungry regions could
be fed without the use of a single genetically modified grain.12
Panacea is a developed economy as well as being a neighbour of Agrotera. The
Government of Panacea wholly owns Amon-Biotech (hereinafter referred to as Amon).
Amon conducted field tests in Panacea, and stopped selling the BT-corn there. But it still
persists in selling the same product in Agrotera. And when Agrotera attempts to institute
some checks and balances, and to test their product, they raise Cain! If they believe their
product to be so very safe, why do they have a problem with a few simple testing
procedures? Talking about the WTO agreement is not of much use either. Panacea has
been a member of the WTO since its inception. Agrotera has just joined. The WTO is not
exactly a champion of the poor. The World Trade Organization was designed as a meeting
place where willing nations could sit in equality and negotiate rules of trade for their
mutual advantage, in the service of sustainable international development. Instead, it has
become an unbalanced institution largely controlled by the United States and the nations
of Europe, and especially the agribusiness, pharmaceutical and financial-services
industries in these countries. At W.T.O. meetings, important deals are hammered out in
negotiations attended by the trade ministers of a couple dozen powerful nations, while
those of poor countries wait in the bar outside for news.13

12
George Monbiot, The Covert Biotech War, available at
http://www.globalpolicy.org/socecon/develop/africa/2002/1119biotech.htm (last visited on 24th January,
2003)
13
Tina Rosenberg, The Free Trade Fix, available at www.nytimes.com/articles/63896/2002/aug/235657.asp
(last visited 1st January, 2003)

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Free trade is a religion, and with religion comes hypocrisy. Rich nations press other
countries to open their agricultural markets. At the urging of the I.M.F. and Washington,
Haiti slashed its tariffs on rice in 1995. Prices paid to rice farmers fell by 25 percent,
which has devastated Haiti's rural poor.14 In China, the tariff demands of W.T.O.
membership will cost tens of millions of peasants their livelihoods. But European farmers
get 35 percent of their income from government subsidies, and American farmers get 20
percent. Farm subsidies in the United States, moreover, are a huge corporate-welfare
program, with nearly 70 percent of payments going to the largest 10 percent of
producers15. Subsidies also depress crop prices abroad by encouraging overproduction.
The farm bill President Bush signed in May 2002-- with substantial Democratic support
-- provides about $57 billion in subsidies for American corn and other commodities over
the next 10 years.16
And this is not subsidized corn, but GM corn, which is a whole different kettle of fish. If
Panacea is able to convince 40% of Agrotera’s farmers to switch in one year, it does not
take much of a stretch of the imagination to see Amon’s BT-corn controlling 100% of the
agricultural sector in 3-5 years. That would then leave the Agroteran economy completely
in the clutches of Panacea. If, for example, Amon was to raise prices, what would an
Agroteran farmer do? Would he switch to using ordinary corn? Or would he grudgingly
pay the extra amount, aware that if he doesn’t, he will be driven out of business by his
competitors? The answer is quite obvious. Panacea has the economic, social, and political
clout to see that this happens. The motivation would be profit, the holy grail of capitalists.
100% of Agrotera’s export income is through agricultural exports. Corn is grown on a
significant acreage of the cultivable land. The numbers add up. GM crops are designed to
generate a continuous high income for their creators. GM seeds incorporating terminator
genes are designed to be sterile so that new seeds must be bought from the same company
every year. 17 If Amon incorporates such a terminator gene in BT-corn, farmers will be
forced to buy a new batch every year. Countries the world over are realizing the threat

14
Ibid.
15
Ibid.
16
Ibid.
17
GM and the Third World, available at http://www.geneticfoodalert.supanet.com/gmfood2.htm (last visited
on 12th January, 2003)

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posed by such attempts at biopiracy, as it has come to be called. In India millions of

farmers demonstrated against genetic engineering by burning crops as part of the
'Cremate Monsanto18' campaign - and their union leaders even toured Europe to help
destroy crops there.19 Agrotera would therefore strongly urge this Honourable Court to
look closely into this aspect of the matter, as it is one which may have extremely long
lasting implications on Agrotera’s economy.

III. HAS NOT PANACEA DEALT A STAGGERING BLOW TO THE DELICATE

ECOLOGICAL BALANCE IN AGROTERA, AS WELL AS TO THE PROSPECTS
OF ECO-TOURISM?

Agrotera is a large tropical island. It has a variety of geographical terrains. Tropical

islands, in fact any islands, by virtue of their being islands, have a tightly self contained
ecological system. This also leads to the system being very delicately balanced. An
addition or deletion to the system may lead to the whole system being knocked out of
kilter. An example of this happening is when rabbits were introduced in Australia by
English settlers. Having no natural predators, they multiplied like, well, like rabbits, and
quickly became one of the biggest pests in the country. Even today, rabbits are considered
pests in Australia. The death of so many migratory species will definitely have an adverse
effect on Agrotera’s ecological balance. Another example of this nature is from the small
tropical island of Moorea, in the South Pacific, part of the Tahiti group of islands. The
local human population lived during generations on the island of Moorea in harmony
with the surrounding nature, fishing and low scale agriculture were the main source of
incomes for these islanders. In the 60's a farmer found a new way for making money,
producing Giant African snails Achatina fulica commercially for locals to eat. This same
man was forced to shut down due to economical difficulties. He released all the foreign
snails into the wild. This heralded the beginning of the Achatina invasion of the island.
Local farmers in the 70's began to find their crops eaten by the alien species, and for
getting rid of them another foreign snail was introduced for biological control, this time
Euglandina rosea, a carnivorous species that was thought to eat the former invaders.
Unfortunately these were too large for them, so they started preying on different species
18
Mosanto is one of the world’s largest pesticide companies. It also makes GM crops.
19
Supra note 16

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of Partula snails indigenous to Moorea. So the numbers of Achatinas and Euglandinas

grew alarmingly and the tiny local species began to find their way towards the edge of
extinction.20 This was caused by the addition of merely two species into the ecology. It
does not take much for an ecological system to be irreversibly damaged. The addition of
BT-corn in large areas of Agrotera without proper testing is a change which is a few
orders of magnitude larger that the changes listed above. The danger could be equally
great. And an ecological balance, once disturbed, is a very difficult thing to get back on
track. The contamination of the Fenugreek leaves, leading to the death and migration of
birds from Agrotera is, if true, a very serious threat to the ecological balance of Agrotera.
Therefore, Agrotera, in being careful about the introduction of BT-corn, is merely taking
the utmost care to protect its ecological balance. It is all the more important for Agrotera
to protect this, as agriculture is the prime employer. Panacea, on the other hand, being a
developed economy, which implies being an industrialized economy, probably feels that
it does not need to pay the same kind of attention to its own ecological balance. Even so,
it has stopped the sale of the BT-corn. Has the ecological balance of Agrotera been
damaged? The answer to this is most probably yes. It requires further study, but the fact
that some damage has been done is inescapable. And whether this damage is irreversible
or not, is something that only time can tell.
Furthermore, a related aspect of this issue is the point of eco-tourism. Eco-tourism is a
growing brand of tourism. As ecological awareness spreads, more and more people want
to visit places where natural beauty is maintained in its original, pristine form. Agrotera
has tremendous scope of developing this form of tourism. However, if the ecological
balance is altered, and becomes dependant on some genetically engineered or modified
plant or organism, the potential that is has, would never be transformed into hard
currency. Panacea has possibly robbed Agrotera of this valuable resource. Eco-tourism is
not just a resource; it is a highly valuable and sustainable resource. The loss of this
resource would not only be felt by Agrotera, but also by all the nature lovers, and
ecologists of the world, who would be deprived of an invaluable opportunity to study an
unspoiled tropical island ecology.

20
Marc Agren, Rescue From the Edge of Extinction, available at
http://www.malakos.com/Journal/articles/partodissey.html (last visited on 25th January, 2003)

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IV. HAS NOT PANACEA VIOLATED THE BILATERAL AGREEMENT ON

PRESERVATION OF NATURE AND NATURAL RESOURCES EXISTING
BETWEEN ITSELF AND AGROTERA?

The bilateral agreement on Preservation of Nature and Natural Resources, existing

between Agrotera and Panacea draws it’s similarities from certain other treaties, namely,
the EU Council Directive -79/409/EEC of 2nd April 1979 on the “Conservation of Wild
Birds”, the “Convention on Conservation of Nature in the South Pacific, 1976” and the
“African Convention on the Conservation of Nature and Natural Resources, 1968”.
Article 4(2)21 of the EU Council Directive -79/409/EEC speaks of the care to be taken of
migratory species. Article 522 of the same Directive speaks of what all members states
need to do to establish a general system of protection for all species of birds. Article
V(1)23 of the Convention of Conservation of Nature in the South Pacific, also speaks of
the responsibility of the State to protect birds in general and migratory species in
particular. Panacea has blatantly violated the bilateral agreement between the two
countries. It has ignored Article XVI24 of the African Convention on the Conservation of
21
Member States shall take similar measures for regularly occurring migratory species not listed in Annex
I, bearing in mind their need for protection in the geographical sea and land area where this Directive
applies, as regards their breeding, moulting and wintering areas and staging posts along their migratory
routes. To this end, Member States shall pay particular attention to the protection of wetlands and
particularly to wetlands of international importance.
22
Without prejudice to Articles 7 and 9, member states shall take the requisite measures to establish a
general system of protection for all species of birds referred to in Article 1, prohibiting in particular:
(a) deliberate killing by capture or by any method;
(b) deliberate destruction of, or damage to, their nests and eggs or removal of their nests;
(c) taking their eggs in the wild and keeping these eggs even if empty;
(d) deliberate disturbance of these birds particularly during the period of breeding and rearing, in
so far as disturbance would be significant having regard to the objectives of this directive;
(e) keeping birds of species the hunting and capture of which is prohibited.
23
The Contracting Parties shall, in addition to the protection given to indigenous fauna and flora in
protected areas use their best endeavours to protect such fauna and flora (special attention being given to
migratory species) so as to safeguard them from unwise exploitation and other threats that may lead to their
extinction.

24
Interstate Co-operation

----Memorial on Behalf of the Respondent----

 xviii

Nature and Natural Resources, which talks of Interstate Co-operation. It has not made
know the results of the field tests conducted inside Panacea, on the basis of which the
sale of BT-corn was stopped in Panacea. All these acts go contrary to the spirit of the
bilateral agreement between the two neighbours. Panacea has refused to accept the
reasonable guidelines on the testing and use of the GM crops. It has thrown the WTO
rulebook at Agrotera and generally behaved in a heavy handed manner. It has also gone
against Principle 15 of the Report of the United Nations Conference on Environment and
Development25 Though the Precautionary Principle has been phased out in many ways in
recent agreements and commentaries, the increasing use of precautionary legal rules in
international environmental conventions, declarations and resolutions indicates clearly
that the precautionary approach is being integral to all development activities. The
Supreme Court of India in a case26 also accepted that “The precautionary principle” and
“polluter pays” principle are essential features of sustainable development. The State of
Panacea has knowingly violated all these norms. Therefore, when it comes before this
Honourable Court and asks for damages, one has to be amazed at their chutzpah.

1. The Contracting States shall co-operate:

a. Whenever such co-operation is necessary to give to the provisions of this Convention
and
b. Whenever any national measure is likely to affect the natural resources of any other
State.

25
In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
26
Vellore Citizens Welfare Forum v Union of India, AIR 1996 SC 2715

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 xix

V. WHETHER AGROTERA IS LIABLE TO PAY ANY DAMAGES TO THE

STATE OF PANACEA?

Having discussed the matter of Agrotera being blameless in great detail in the
abovementioned issues, it is clear that Agrotera bears absolutely no liability towards
Panacea. The damages claimed are for “losses suffered by Amon”. The specific nature of
these damages has not been notified to Agrotera. “Losses suffered” is a very broad term.
If Amon has invested heavily in research and development, it has also sold its product to
40% of Agrotera’s corn farmers. The benefits of the research are equally available to
Amon. The losses suffered surely do not include proposed future losses. Therefore,
Agrotera should not be liable to pay any of the damages for the so-called losses suffered
by Amon. In fact, Panacea might find itself being forced to pay Agrotera, if Agrotera
decides to sue Panacea, and the Honorable Court finds for Agrotera. The real need of the
hour is to restore the ecological balance of Agrotera, and ensure that the migratory
species which are dying, survive. A natural resource is a resource belonging to all
mankind. It must be wisely used and preserved for future generations.
Agrotera once again affirms that there is no liability on its part to pay Panacea any
damages.

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 xx

Prayer for Relief

For the reasons stated above, the Nation of Agrotera respectfully requests that this
Honorable Court:

DECLARE that the guidelines issued by Agrotera are valid and do not violate and
principles or fundamental norms of International Trade;

DECLARE that the applicants claim for damages is unfounded;

DECLARE that Panacea has interfered with the Conservation of Bio-Diversity at

Agrotera;

and
ORDER Panacea to comply with the guidelines laid down by the Supreme Court of
Agrotera with respect to testing and use of BT-Crops.

----Memorial on Behalf of the Respondent----