Telders Case 2011 Case Concerning the Umarghela River

1)

The Umarghela (Umarghela means Clear Water) is a river that finds its origin in the mountains of Larmastan and flows out into the Southern Sea passing through Marosland. The total length of the river is 1200 km. Before the construction of the Lulabeki-Dam (see below, paragraphs 10-11), the river had an average discharge of 4000 m3/s. The river has two sources, both in Larmastan, which are joined near a small mountain village called Partura. The mouth is near Krumado, the capital of Marosland and its largest harbour (see attached map).

2)

Larmastan and Marosland are former colonies of Belragia and Imperalia respectively. Larmastan was colonised in 1846 and Marosland in 1874. At the time the two colonial territories were populated by different, largely nomadic, tribes. Only two tribes were sedentary: the Filumarga and the Mangirizo. The former tribe settled early in its history on the banks of the Umarghela in Larmastan. Today, the members of this tribe primarily live in a region called Umargazo, which means with plenty of water. Although they have developed their means of subsistence and adapted to modern ways of life, the ancient religious rites of this tribe have persisted to this day. The Filumarga are somewhat connected to the Mangirizo. they do not have the same religion, but there is a close ethnic resemblance and their languages are close enough that they understand each other. The Mangirizo live largely on the banks of the Umarghela in Marosland, where they form the largest tribe. Rumarinia and Lauria are neighbouring countries to both Larmastan and Marosland.

3)

In 1905 the two colonial powers concluded a treaty regarding the management of the Umarghela. Articles 1 to 5 of this treaty, which carries the name of Treaty on the River Umarghela, provide: 1. 2. 3. 4. 5. Any use of the waters in the Umarghela River shall not infringe Maroslands natural and historical rights in the waters of the Umarghela and its requirements of agricultural extension. Any water resource development constructed after the ratification date shall not be operated in a way that adversely affects the stream flow control in the Umarghela River so as to reduce the flood control In case of an increase in the quantity of water extracted by Larmastan, Imperalia shall be duly notified and satisfactory assurances shall be given as to the safeguarding of Maroslands interests. During the months April to October, Larmastan may, subject to Articles 1 and 2 of this Treaty, distract water from the Umarghela for the purpose of creating a reservoir to assure a constant supply in the remainder of the year. During the months November to March, any subsequent extraction of water must be expressly approved by the government of Imperalia or its governor in Marosland.

4)

Belragia, having just lost a war against Imperalia, had no alternative and agreed to the terms of the treaty. It would otherwise have lost its colony as a whole to Imperalia. The Treaty on the River Umarghela was ratified by both countries on 30 April 1905.

5)

Until the middle of the 20th century, the territories of Larmastan and Marosland remained subjected to colonial rule. While Larmastan had a beautiful natural environment, including very large waterfalls near Partura and also 70 kilometres upstream from Alara, it always remained a rather underdeveloped country. The colonial power showed little to no interest in developing the country. In addition, losing the war was very costly for Belragia, so afterwards it lacked the means to invest in Larmastan. The situation in Marosland was strikingly different. For at least a thousand years, Marosland had been growing rice on a large scale near the Umarghela and had installed a highly sophisticated irrigation system to maintain the rice paddies. The yield of its rice cultivation not only served to nourish the population of Marosland. The rice paddies were traditionally cultivated by the Mangirizo and they play a role in its social and cultural life of the tribe. In addition to a large production of rice, Maroslands economy depended on its harbour, located at the mouth of the Umarghela. Its strategic position caused Marosland to be of interest to Imperalia, which has supported, financially and otherwise, the construction of the harbour and the maintenance of the irrigation-systems ever since it colonised the territory.

6)

After the Second World War, both countries entered into the process of decolonisation. As was to be expected, the decolonisation of Marosland evolved rather smoothly. Thanks to already existing infrastructures and local government, the path to independence of Marosland

caused almost no bloodshed. It acquired full independence on 19 January 1954. Its relation to the former colonial power has been relatively good ever since. Imperalia still invests large sums of money in Marosland, both through its private sector and in the form of development aid.

7)

In 1958, Larmastan started its struggle for independence. Belragia, having regained some of its international clout after the shame of losing the earlier war, had until then refused to grant independence to Larmastan. Only after serious pressure from the UN as well as from its neighbouring states, realising that it risked international isolation, did Belragia surrender to the request. It left Larmastan in a hurry, causing a formidable power vacuum. A gruesome civil war ensued causing the death of a third of the population through the actual fighting but also through starvation and enforced deplacements. General Safire emerged as the winner in 1964 and he installed a very oppressive dictatorial regime. Many of the nomadic tribes were forced to give up their traditions and to settle in designated areas. Anyone criticising General Safire or his policies would be sentenced to extensive re-education, mostly never to be heard of again. 8) After a number of failed attempts, a successful coup finally toppled General Safire and his government in 1983. The interim government started to write a constitution installing a parliamentary democracy, which was agreed on by referendum in 1985. The new constitution received a thumping majority of 85% of the votes. It has held parliamentary and presidential elections almost every five years since 1985.

9)

Although still fragile, the government of Larmastan immediately embarked on a development programme. It sought help from the World Bank group and the International Monetary Fund and tried to create a climate that would be attractive for foreign investment. It also concluded a number of bilateral investment treaties with developed states. Near the Umarghela at Alara, the natural environment of Larmastan turned out to be very suitable for heavy industry: the area consisted of flatlands and some woods and, of course, the proximity of the river was an important asset. A number of foreign investors were lured to support the project and, not hampered by tedious red tape, heavy industries were welcomed to the region. As of 1990, these included a number of Chemical Industries, a Steel Plant and a Pulp Mill. Environmental legislation being largely absent or underdeveloped in Larmastan, these industries were not so concerned by pollution and used the river to dump their waste and its water for cooling purposes. Although this was known by the government of Larmastan, there was no political will to take action against the corporations operating the factories near Alara: they were responsible for a large part of the jobs in Larmastan and the economy heavily depended on them. In addition, it was rather difficult to prosecute the foreign owners of the Industries under local Larmastanian law.

10)

The increase of industrial activity in Larmastan also caused an increase in demand for electricity. To meet these requirements, Larmastan started to look for alternative sources of energy. One obvious source was the river. With its large amounts of water and its strong current, the extraction of energy from the river constituted a very attractive solution. In the mid 1990s some experiments were carried out with extracting energy from the current itself, but this proved not successful and very expensive to carry out. Instead, the government decided to build a massive dam and a hydro-electric power station near Alara. The location was chosen in order to avoid forced evictions and in fact the land that was submerged by water was hardly populated. The few families that were requested to leave were offered generous alternatives and did not complain. The dam was partly financed by a loan from the World Bank, which stated that it perfectly fitted its programmes and policies.

11)

The dam, which was called the Lulabeki-Dam after one of the principal drafters of the new constitution, was officially inaugurated in 2000. It proved to be a very successful project: 60% of the countries electricity is provided by this hydro-electric power plant. The dam is by far the largest in the region and is included in the global top 5 of largest dams.

12)

However, the dam is not only a cause of happiness. As a result of the dam, the flow of the Umarghela beyond the dam was turned into a trickle compared to its previous size, especially in the low season. This has had a number of devastating consequences. As the bedding of the river dried, plains emerged which were covered with toxic chemicals, which in turn have caused toxic dust storms. Especially the Filumarga and their distant cousins, the Mangirizo, have suffered from the results. Life expectancy has lowered, and there is a high incidence of miscarriages, certain types of cancer and infections of the lungs and eyes. In addition, the Filumarga are no longer able to practice certain religious rites, including their ancient practice to scatter the ashes of their deceased on the river. During the low season, the water of the river is so low that it will not carry the ashes and the result is a thick gray layer on the water at first, and later on a heap of muddy ashes at the turns of the river. The Filumarga consider this an affront to their ancestors and are deeply troubled by it. They believe their dead

will not find peace and cannot be reunited with their ancestors unless they are allowed to travel to the Southern Sea.

13)

In 2003, when the health problems became more visible, and when all appeals to the national government had proven fruitless, a small group of Filumarga created the FALD (Filumarga Against the Lulabeki-Dam). The FALD initially turned its anger towards the corporations responsible for the pollution, but because they are mostly foreign, this was to no avail. Instead, it started to attack the national government. In the summer of 2003, a number of well-planted car bombs caused considerable damage in the capital and killed a number of important politicians. At first, the potential of the FALD was somewhat underestimated. The police arrested one member and considered the matter dealt with. In early 2004, the FALD responded with increased activity. Local politicians refusing to hear their cause were killed and their bodies publicly exposed. The desperation of the Filumarga was such that even suicide bombing was resorted to, especially by individuals suffering from lethal forms of cancer, which according to them was caused by the pollution of the river. Alongside these more traditional means of protest, the FALD also engaged in cybercrimes. It managed to hack the computers of the ministry of defence and a cleverly planted a logic bomb managed to make the electric grid in Alara and Cryalua, the capital, to go down for an entire day. This time, the police responded more seriously and staged a crackdown in the region where the Filumarga live. The members of FALD were however tipped off and fled to Marosland, where they enjoyed some measure of sympathy, in particular among the Mangirizo.

14)

Marosland has also suffered the consequences of the Lulabeki-Dam. It now struggles to irrigate the rice paddies and suffers from the toxic dust. It therefore understands the cause of the FALD. Moreover, it was infuriated with its neighbour for constructing the dam in the first place, which it regards a blatant violation of the 1905 Treaty. It has sent numerous letters of protest to Larmastan, but these were mostly ignored. Only once did the government of Larmastan respond, but only to say that Marosland had benefitted long enough from the river and that is was now Larmastans turn. It considered the 1905 Treaty invalid and in any event it did not consider itself a successor to Belragia in this regard.

15)

The region just across the border along the river in which some of the Mangirizo live is mountainous and not very accessible. Although the government of Marosland is aware of the allegations that members of FALD are hiding in that part of its territory, it does not exactly know whether that is true or if so, where their hideouts are located. A request of Larmastan to arrest them and extradite them to Larmastan is refused. Larmastan government officials have repeatedly told the media that they intend to apply convincing methods of interrogation to make the members of FALD reveal their plans in order to save the lives of innocent citizens of Larmastan, and also that the government of Larmastan considers that the terrorist threat posed by this terrorist organistaion would justify an exception to the prohibition on torture.

16)

Meanwhile, the FALD continue to wreak havoc in Larmastan, causing more casualties, damage to buildings and to the economy by persistent computer attacks. Larmastan saw no alternative but to turn to the UN Security Council. It considered that the FALD must be stopped before the Mangirizo may be tempted to join their cause, which would seriously threaten the stability in the region. Its request to the Security Council was accompanied by a list of names of individuals suspected to be member of FALD. Larmastan enjoys considerable sympathy among a majority of the members of the Security Council. The UN was closely watching its transition to democracy in the 1980s and had often expressed sympathy for the plight of this newly independent country. The Security Council discussed Larmastans request quickly. On 20 September 2009, it issued Resolution 2998 (2009). The resolution was adopted with one abstention of a permanent member and three votes against by non-permanent members. After expressing its concern for the situation and its support for the effort of the government of Larmastan, the resolution continues as follows The Security Council, DETERMINING that the acts of Filumarga Against the Lulabeki-Dam (FALD) are a threat to the peace and security in the region, in particular Larmastan ACTING under Chapter VII of the Charter 1. 2. CONDEMNS the acts of FALD CALLS UPON all States, and in particular Marosland, to co-operate to bring the activities of FALD to an end

3.

DECIDES ALSO that Marosland must not acquiesce in or provide assistance to any form of terrorist action or terrorist groups, and that it must promptly, by concrete actions, demonstrate its renunciation of terrorism DEMANDS for that purpose that Marosland extradite the individual members of FALD present on its territory, as listed in the list of suspects annexed to the present resolution, as requested by Larmastan. DECIDES to remain seized of the matter

4.

5.

17)

The government of Marosland was not too keen on implementing the resolution. Although it would have the military means to embark on a very expensive mission to try and arrest the named individuals, or even to target them by one of its unmanned drones, it is of the opinion that doing so would be contrary to its international obligations. The government has therefore decided to ignore the resolution. It is, however, put under serious pressure by other countries and by Larmastan in particular, which continued to show no sign of changing its attitude towards the Lulabeki-Dam. 18) In September 2010, Marosland decided to apply to the International Court of Justice. It asks the Court to adjudge and declare that Larmastan has breached its international obligations by 1. Constructing the Lulabeki-Dam without Maroslands approval

2.
19)

Polluting the Umarghela River.

Larmastan responds and asks the Court to adjudge and declare that Maroslands claims should be dismissed since the 1905 Treaty is no longer applicable. It also submits a counterclaim and asks the Court to adjudge and declare that Marosland has breached international law by failing to act according to Resolution 2998 (2009)

20)

Larmastan and Marosland are UN Member States and parties to the Statute of the International Court of Justice. They have both accepted the Courts jurisdiction by means of a declaration under Article 36, to which they have not attached any reservations. Furthermore, Larmastan and Marosland have ratified the following international conventions: the Vienna Convention on the Law of Treaties, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. They are both signatories to the Convention on the Law of the Non-navigational Uses of International Watercourses.