Team Code

3rd INLU International Moot Court Competition, 2014

IN THE INTERNATIONAL COURT OF JUSTICE

Peace Palace, The Hague
The Netherlands

THE CASE CONCEERNING THE DIFFERENCES BETWEEN THE PARTIES

CONCERNING ENVIRONMENTAL ISSUES ARISING FROM THE TEITALLIK MINING
PROJECT.

The State of Emerald Isle

Applicant
V.
The Democratic Republic of Westaros
Respondent

MEMORIAL FOR THE RESPONDENT

The Democratic Republic of Westaros

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 Table of Contents
Table of Contents Page No.
Table of Abbreviations 06-07.
List of Authorities 08-10.
Statement of Jurisdiction 11-11.
Statement of Facts 12-14.
Questions Presented 15-15.
Summary of Pleadings 16-17.
Pleadings/Arguments Advanced 18-37.
Issue 1 18-23.
That the Democratic Republic of Westaros has not breached the bilateral agreement and
the mining agreement. But State of Emerald Isle itself did not comply with the provisions of
the agreements. 18.
1. Validity of the treaty. 18.
a. The Jus cogens rule was violated by the State of emerald Isle. 18.
2. The State of Emerald Isle itself did not comply with the provisions of its own municipal
law. 19.
3. The said bilateral agreement was frustrated under the doctrine of frustration.20.
4. The State of Emerald Isle did not have power to invoke the treaty and agreement under
error. 21.
5. The violations made by State of Emerald Isle lead to impossibility of performance on
the part of Democratic Republic of Westaros. 22.
6. The Democratic Republic of Westaros has not violated the Doctrine of Rebus Sic
Stantibus (fundamental change of circumstances). 22.
Issue 2 23-29.
That the Democratic Republic of Westaros has not violated the general principles of
International Law. 23.
1. Principle of State Responsibility. 23.
1.1. Applicability of state responsibility under municipal laws. 23.
1.2. Relationship between law of treaties and law of responsibility (non applicability of law of
responsibility to treaties). 24.
1.3. Application of state responsibility in matters of environment protection. 26.
1.4. Notion of identifying the injured party. 26.
1.5. Counter measures. 26.
2. Principle of State Sovereignty. 26.

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3. Doctrine of clean hands. 27.
4. Principle of Necessity. 27.
4.1. In the case of force majeure. 27.
5. Principle of Good Faith. 27.
6. Principle of Pacta Sund Servanda. 28.
7. Principle of free Consent. 28.
8. Principle of equity and equitable utilization. 28.
Issue 3 29-33.
That the Democratic Republic of Westaros has not violated the General Principles of
International Environment Law and has not deviated from the precautionary approach.29.
1. The Democratic Republic of Westaros has violated none of the principles concerning
international environment law. 29.
2. The Democratic Republic of Westaros has not violated the Principle of State sovereignty
over natural resources but it was State of Emerald Isle who deviated from it.
29.
2.1. Democratic Republic of Westaros in under no obligation under Rio Deceleration.
29.
3. The Democratic Republic of Westaros has not violated Principle Concerning the Right
to Development but it was State of Emerald Isle itself do not comply with it. 29.
4. The Democratic republic of Westaros has no obligation under the Principle of
Sustainable Development. 30.
4.1. Legal Status of Sustainable Development does not bind the democratic Republic
of Westaros. 30.
5. The Democratic republic of Westaros has not deviated from The principle of Common
but differentiated responsibilities. 30.
5.1. Principle 7 of the Rio Deceleration. 31.
6. The Democratic Republic of Westaros has not deviated from A Human Right to a good
environment it was State of Emerald Isle who failed to give to its citizens right to a
good environment. 31.
7. The Democratic Republic of Westaros has not violated the mechanism of Precautionary
approach and fully avoided by it. 31.
7.1. Mechanism of Precautionary approach. 31.
8. It was the duty of the State of Emerald Isle to conduct Environment Impact Assessment
Democratic Republic of Westaros was under no obligation to conduct it. 32.
8.1. Principle 17 of the Rio Deceleration. 32.
9. The Democratic Republic of Westaros is not liable under Polluter Pays Principle. 32.
Issue 4 33-37.

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That The Democratic Republic of Westaros has not violated the existing municipal
legislations of The State of Emerald Isle. But, The State of Emerald Isle itself failed to
comply with their own municipal law. 33.
1. That the Democratic Republic of Westaros has not violated any provisions of The Aqua
Act, 1993. But, The State of Emerald Isle itself failed to comply with the provisions of
the Act. 33.
1.1. That State of Emerald Isle itself failed to achieve the objective of the Act. 33.
1.2. The State of Emerald Isle violated Cl. a of S. 19 of the Act. 33.
1.3. The State of Emerald Isle violated Cl. b of S. 19 of the Act. 33.
1.4. Empowers the State of Emerald Isle to determine the use and amount of the water. 33.
2. The Democratic Republic of Westaros has not violated any provisions of Environmental
Governance and Monitoring Act,1980. But, The State of Emerald Isle itself failed to
comply with the Act. 34.
2.1. The State of Emerald Isle failed to lay down any environmental quality standards under
S. 17 of Act. 34.
2.2. The State of Emerald Isle itself violated the provisions of S. 134 of the Act by doing
arbitrary amendment in its Local Area Plan 1984.
35.
3. The Democratic Republic of Westaros has not violated any provisions of Environmental
Governance and Monitoring Act,1980. But, The State of Emerald Isle itself failed to
comply with the provisions of the Act. 35.
3.1. The State of Emerald Isle itself did the Arbitrary Clearance of the forest land. 35.
3.2. The State of Emerald Isle violated S. 53 of the Act. 35.
4. The State of Emerald Isle itself violated its Local Area Plan by amending it arbitrarily.
36.
4.1. The State of emerald Isle failed to achieve the objective of the Local area Plan. 36.
4.2. The State of Emerald Isle completely shifted its focus from the original Local Area Plan,
1984. 36.
4.3. Original Local Area Plan,1984. 36.
4.4. Customary definition of necessity. 37.
PRAYER 38.

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 Table of Abbreviations
Paragraph.
ARSIWA Articles on Responsibility of States for Internationally Wrongful Acts.
Art. Article.
BYIL British Yearbook of International Law.
Cl. Clause.
Co. Company.
Def. Definition.
E.G. Example.
Edn. Edition.
Eds. Editors.
EGMA Environmental Governance and Monitoring Agency.
EIA Environmental Impact Assessment.
Esp. Especially.
Etc. Etcetera.
GDP Gross Domestic Product.
I.E. That Is.
ICJ International Court of Justice.
ILC International Law Commission.
ILR International Law report.

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Ltd. Limited.
MMPLC Minerva Mines and Minerals Co. Ltd.
OUP Oxford University Press.
P. Page.
Para. Paragraph.
PSU Public State Undertaking.
Rep. Report.
RIAA Recording Industry Association of America.
S. Section.
SIDA Swedish International Development Cooperation Agency.
SPV Special Purpose Vehicle.
UN United Nations.
UNEP United Nations Environment Programme.
V. Versus.
VCLT Vienna Convention on Law of Treaties.
Vol. Volume.
WTO World Trade Organization.

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 List of Authorities
Cases, Advisory Opinions and Arbitral Rulings.
International Court of Justice Report
Namibia case, ICJ Rep [1971], pp. 16,46-7.
Gabsikovo-Nagimaros Project, (Hungary/Slovakia), ICJ rep [1997], p 7,38-39,41, 154
para 53, 144-142.
Nuclear Test Case ( Australia v. France) ICJ rep [1996], (para 46).
Case Concerning Pulp Mills on the River Uruguay.
Legality of the threat or use of nuclear weapons, Advisory opinion, ICJ reports [1996] p
226, 241-242
Art. 62 of the VCLT , ICJ Rep [1973], p 3.
International Law Report.
Art. 62 of the VCLT 55, ILR, p 183.
Namibia case , 49 ILR, pp. 2,37.
Rainbow Warrior Case, 82 ILR, pp. 499, 564-6.
International Law Commission
ILCs Draft Articles on Prevention of Transboundary Damage from Hazardous
Activities ; ILC yearbook 2001,Vol II(2),146-170 (para 97).
Treaties, Conventions, Statues and Declarations.
Vienna Convention on Law of Treaties [1969].
Draft Articles on the Responsibility of the States for Internationally Wrongful Act
[August 2001]
Stockholm Deceleration of the United Nations Conference Environment Programme
[1972].
Rio Deceleration on Environment and Development [1992].
United Nations Conventions on the Law of the Seas [16 Nov. 1994].
Teachings of the most highly qualified publicists.

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 Alina Kaczorowska, Public International Law (4th edn, Routeledge Tyalor & Francis
Group London and New York).
James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010).
P.W. Birinie & A.E. Boyle,International Law And the Environment (2 nd edn OUP
2002).
Sweet and Maxwell, Chitty on Contracts (13th Edn), Vol. 1, General Principles,
(Thomsosn Reuters 2013).
Ian Brownlie CBE, Q.C.(eds), Basic Documents in International Law, (6th edn 2009).
Malcolm N. Shaw, International Law,(4th edn Cambridge University Press 1997).
Articles
Marcel Szabo, The Implementation of the judgement of the ICJ in the Gabcikonov-
Nagymaros Dispute.
Heiko Furst, The Hungrarian and Slovakian conflict over the Gabcikonove-Nagymaros
Dams: An analysis.
Jasika Howle, The Gabcikononve-Nagymaros Case: the influence of the ICJ on the law
of sustainable development.
Aaron Schwabach, Diverting the Danubg: The Gabcikononve-Nagymaros Dispute and
international fresh water law.
Avirginie Barral, Sustainable Development in International Law: Nature and evolution of
an evaluative legal norm.
Prof. Hans Chr. Bugge Principles of International Environmenrtal Law.
Dr. AF Christina Voigt, The Role of General Principles in International Law and their
Relationship to Treaty Law.
Lauren Trevisan, The International Court of Justices Treatment of Sustainable
Development and implications for Argentina V. Uruguay.
Dire Tladi, Principles of Sustainable Development Concerning Pulp Mill on the River
Uruguay.
Miscellaneous
http://www.icj-cij.org/docket/files/92/7375.pdf
http://ias.jak.ppke.hu/hir/ias/20091sz/03.pdf
http://www.columbia.edu/cu/ece/research/intermarium/vol6no2/furst3.pdf
http://www.law.uq.edu.au/articles/qlsr/howley-qlsr-2-1.pdf
http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1149&context=bjil
http://www.ejil.org/pdfs/23/2/2292.pdf
http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1010&context=sdlp

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 http://www.idlo.int/Documents/Rio/01.%20Pulp%20Mills%20on%20the%20River
%20Uruguay.pdf
http://www.un.org/en/
http://www.gatt.org

Statement of Jurisdiction

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The State of Emerald Isle and The Democratic Republic of Westaros have submitted this dispute
to the International Court of Justice pursuant to a Special Agreement (Compromis), dated First
Day of August, 2005. This courts jurisdiction is invoked under Article 40(1) of the Statues of the
International Court of Justice, states may bring cases before the Court either by notification of
the special agreement or by a written application addressed to the Registrar . The Parties shall
accept any Judgment of the Court as final and binding upon them and shall execute it in its
entirely good faith.
The Appellant have the honor to transmit an original of the Compromis for submission to the
International Court of Justice of the differences between the Applicant and the Respondent
concerning the environmental issues arising from the Teitallik Mining Project signed in The
Hague, The Netherlands on the Ninth Day of October in the year 2013.

Statement of Facts

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BACKGROUND
1. The State of Emerald Isle (hereinafter referred as Emerald Isle) is a ecologically rich and
diverse country, thriving with abundant variety of exotic species of flora, fauna, and huge
reserves of natural resources. It is surrounded by Turquoise sea on north eastern border, which
remains frozen for 6 months and in the next 6 months is thriving with abundant exotic life. The
area around the sea is highly sensitive and has been preserved that way for centuries by Wahihi
tribe, a fishing native of this region. Fishing is an integral part of Emerald Isles history , culture ,
identity and anthropology.
Two third of the GDP of The State of Emerald Isle is generated from exporting the SILVER
TROUT an exotic fish. Being the leading producer of silver trout, The State of Emerald Isle
has been able to maintain its stock through the traditional measures and precautionary approach.
3-9
2. The Democratic Republic of Westaros (herein after referred as Westaros) after the second
world war arose as a modern democratic republic. Being a technologically advanced state,
Westaros lacks in natural resources. To cope with the devastation of the war ,it decided to rebuild
the nation and catch up with the pace of economic development by developing few of feasible
sectors of its economy such as manufacturing ,production etc.
Westaros devised its economic policy wherein it would execute agreements with such countries
which are comparatively richer their natural resources to fulfill its demand of raw material
.Thus, in a short span of time Westaros has arisen as a global front runner in manufacturing
,production etc. 1-2.
RELEVANT INTERNATIONAL AGREEMENTS
3. Both the countries are members of the UN , WTO and various international treaties, protocols,
conventions and agreements. 27
BILATERAL TRADE AGREEMENT
4. To explore its unutilized sectors of economy Emerald Isle liberalized its social and economic
policies. Whereby, entered into a bilateral trade agreement with Westaros to promote its trade
related activities and economic relations. The agreement came into force on 1 st August, 2005.
The agreement offered exchange, tax, and administrative stability and unrestricted remittance of
profits, dividends, and financial resources to Emerald Isle. And in return, The State of Emerald
Isle provided for tariff and trade concessions to Westaros on export of mining equipment. Also

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the Premier of Emerald Isle in his speech, addressed to the citizens assured them of sustainable
development. 10-12
MULTILATERAL MINING AGREEMENT
5. It was found in one of the explorations that, Emerald Isle possessed one of the biggest possible
reserves of a mineral TEITALLIK. Also, the reserve was estimated to supply 80% of the total
global requirement of the mineral in coming years.
MMPLC, a PSU registered in Westaros won the bid to undertake the mining project. The
multilateral mining project was signed between the Department of Mines and Minerals
Exploration of State of Westaros along with MMPLC and the Ministry of Trade and
Development of Emerald Isle to initiate the said mining project. Under this Agreement a Special
Purpose Vehicle named Hard Rock Mines & Minerals Ltd. was established for the said project.
As per this Agreement, the Teitallik mining was to be conducted in total four phases.
In compliance with the existing Municipal Laws an EIA was conducted but while the reports of
EIA were still pending due to the diplomatic pressure mining lease was granted in favour of Hard
Rock. No compensation or rehabilitation was provided to the locals displaced because of the
mining projects. However, the nature of the clearance were merely conditional and not absolute,
the concept of pari passu was to be implemented by the Hard-Rock as a precautionary measure
during its operational phase. 13-15
EFFECTS AND CONSEQUENCES OF THE MINNING AGREEMENT
6. Within a time period of two and a half year ecological consequences of the mining operation
began to become evident. It was found that the mining and refining project was lacking in waste
Management. Since the hazardous waste such as slag, red mud, flurogypsum, waste water
containing chlorides and magnesium were generated during the extractions, beneficiation and
processing of the mineral were being indiscriminately dumped in the surrounding mining area.
Also in the last season a few export consignment of Silver-Trout have also been rejected on the
ground of alleged toxic contamination this resulted in huge financial losses to the State of
Emerald Isle and its local fishing community.
The clearance granted to Hard Rock was criticized by various International Environmental
Agencies such as ENVIRO-WATCH, SIDA & World Conservation Monitoring etc. Also, by
government accredited laboratory Blue-Star Lab suggested that there was potential percolation of
waste into ground water system. An association called Saviors of Silver-Trout was formed by the

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local fishing community to represent their concerned and made a representation to the apex
environmental body called EGMA submitted that the toxic waste generated out of the mining
project was estimated to be 10 billion tons and would require a period of few decades, substantial
funds as well as adequate scientific technology for its sea treatment.
Further it was said that the mining project was drawing huge quantity of ground water and also
an amendment made in its local area plan to facilitate the mining project was in news. The
Enviro-Watch contended that the amendments made in the local area plan were made without
having due regard to the environmental safeguard. 16-22
SUSPENSION OF THE MINING PROJECT
In an emergency meeting with EGMA, Members of Ministry of Trade and Development and The
Members of Expert Committee, the Premier of Emerald Isle sought a written response from Hard
Rock on the alleged violations. But, before Hard Rock could submit its response an indefinite
suspension order, to halt the mining activities was issued to Hard Rock. 23
NEGOTIATIONS
Hard Rock took the matter to the Westaros, whereby round of diplomatic dialogues were
exchanged by the Emerald Isle and Westaros for six months.
PROCEDURE
As the dispute failed to resolve between The State of Emerald Isle and The Democratic Republic
of Westaros, parties submit under article 40(1) of the international statute of justice under special
agreement notified on 9th October,2013.
Hence this present dispute.
SETTLMENT OF DISPUTE
Hoping to arrive at an amicable settlement to the trade dispute, consultations, negotiations and
mediations were held between the two states, however they made little headway. Following their
failure to resolve the dispute both parties agreed to submit their dispute to the International Court
of Justice on March 2009 and be bound by the Judgment of the court.

Questions Presented

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Issue 1
That the Democratic Republic of Westaros has not breached the bilateral agreement and
the mining agreement. But State of Emerald Isle itself did not comply with the provisions of
the agreements.
Issue 2
That the Democratic Republic of Westaros has not violated the general principles of
International Law.
Issue 3
That the Democratic Republic of Westaros has not violated the General Principles of
International Environment Law and has not deviated from the precautionary approach.
Issue 4
That The Democratic Republic of Westaros has not violated the existing municipal
legislations of The State of Emerald Isle. But, The State of Emerald Isle itself failed to
comply with their own municipal law.

Summary of Pleadings

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Issue 1- That the Democratic Republic of Westaros has not breached the bilateral
agreement and the mining agreement.
The Jus cogens rule was violated by the State of emerald Isle and it did not comply with the
provisions of its own municipal law. The said bilateral agreement was frustrated under the
doctrine of frustration. Also, the State of Emerald Isle did not have power to invoke the treaty
and agreement under error. The violations made by State of Emerald Isle lead to impossibility of
performance on the part of Democratic Republic of Westaros.
The Democratic Republic of Westaros did not violated the Rebus sic stantibus doctrine.

Issue 2- That the Democratic Republic of Westaros has not violated the general principles
of International Law.
The Democratic Republic of Westaros did not violate the Principles of State Sovereignty,
Doctrine of clean hands, Principle of Necessity, Principle of Good Faith, Principle of Pacta Sunt
Servanda, Principle of free Consent and Principle of equity and equitable utilization under the
general principles of state responsibility.

Issue 3- The Democratic Republic of Westaros submitted that it has not violated any
general principle of international law and has not deviated itself from the precautionary
approach.
The Democratic Republic of Westaros has also submitted that it has no obligation under the Rio
Declaration. The allegation of violation of Right if Development is vague instead it was the State
of Emerald Isle who itself did not comply with the rules. The Democratic Republic of Westaros
has also contended that it has bagged no obligation under the principle of sustainable
development as the legal status of them does not bind them. Neither the Democratic Republic of
Westaros has violated Principle7 of Rio Declaration nor has deviated itself from the principle of
common but differentiated responsibilities. Also, it has not deviated from A Human Right to a
good Environment. Under Principle 17 of the Rio Declaration they had no obligation for
Environment Impact Assessment.

Issue 4- The Democratic Republic of Westaros had not violated the existing domestic
legislations of the State of Emerald Isle.

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Westaros proving the allegations of the State of Emerald Isle wrong submitted that the existing
municipal legislations of the State of Emerald Isle has not being violated by them instead the
state itself did not comply with them. The State of Emerald Isle by putting allegations on the
Democratic Republic of Westaros by saying that the provisions of Environmental Governance
and Monitoring Act,1980, are violated ,they are simply deviating the ICJ from the reality. The
arbitrary act of the State of Emerald Isle of changing its Local Area Plan clearly shows their
fault.

Pleadings/Arguments Advanced
Issue 1

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That the Democratic Republic of Westaros has not breached the bilateral agreement and
the mining agreement. But State of Emerald Isle itself did not comply with the provisions of
the agreements.
1. Validity of the treaty:-
Art. 42 Cl. 1 VCLT provides that the validity of a treaty or of the consent of a state to be bound
by a treaty may be impeached only through the application of the present convention. This is to
prevent a state from attempting to evade an inconvenient treaty obligation by alleging space
spurious grounds of invalidity
A distinction must be made between grounds of nullity:-
Which concerns the lack of consent of a party to a treaty with the consequences that it
will still be valid (but not for a bilateral treaty) but all parties except for the state which
did not consent to it. The vitiating factors are mentioned in Art. 8,46-49 VCLT; and
Which lead to nullity of a treaty for all parties on the ground that either it was concluded
in violation of a jus cogens rule (Art. 53 VCLT) or that it is in conflict with a jus cogens
rule which has emerged after its conclusions.
The clearance of the land near riverines and allocation for the purpose of mining project was
even though criticized by various international environmental agencies such as Enviro-Watch,
SIDA, and World conservation monitoring centre etc. 1 And, it is also concluded by Blue-Star lab
(government accredited) that there are traces of hazardous substances and toxic contaminants,
resulting in possible degradation of the aquatic habitat in the near future. 2 The Saviors of Silver-
Trout raised questions regarding the number of alleged committed violations such as improper
public consultation etc. under the existing domestic legislations. 3 The State of emerald arbitrarily
amended its local area plan made in 1984.4
1.1. The Jus cogens rule was violated by the State of emerald Isle.

1 Compromis, 16.

2 Compromis, 17.

3 Compromis, 19.

4 Compromis, 20,21.

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Art. 53 of the VCLT provides that: a treaty is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law. For the purposes of the present convention,
a peremptory norm of general Internal Law is a norm accepted and recognized by the
international community of states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international norm having the
same character.
The concept of jus cogens, of fundamental and entrenched rules of international law, is well
established in doctrine now but controversial as to contend and method of creation. The incretion
of articles dealing with jus cogens in the 1969 convention underlines the basic principles with
regard to treaties.
However, in recent years, due to global warming and its consequential effects on the local
ecology there has been a marginal and gradual depletion in the existing stock of the Silver-
Trout.5 Even thou the clearing of the forest land around the actuaries and riverines was criticized
by international environmental agencies, the State of Emerald Isle handed the cleared land to
Hard-Rock to begin the first phase of mining,6
Therefore, the State of Emerald Isle was itself liable for nullifying the treaty.
2. The State of emerald isle itself did not comply with the provisions of its own municipal
law.
The State of Emerald Isle itself violated its local laws, as the representation made by the local
people raised questions regarding a number of alleged committed violations such as improper
public consultation etc. under the existing domestic legislations, and thereby failing to satisfy.7
And also while the EIA study were pending the State of Emerald Isle itself granted the mining
lease in favour of Hard-Rock.8 Therefore, the State of Emerald Isle had arbitrarily amended its

5 Compromis, 8.

6 Compromis, 16.

7 Compromis, 19.

8 Compromis, 15.

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domestic laws, made an amended in the Original Local Area Plan, 1984 without having due
regard to the environmental safeguards.9
An additional view, and the one favored by most states is reflected in Art. 46 VCLT, which
provides,
A state may not invoke the fact that its consent to be bound by a treaty is expressed in
violation of a provision of its internal law regarding, competence, to conclude treaties
as invalidating its consent unless that violation was manifest and concerned a rule of
its internal law of fundamental importance.
A violation is manifest if it would be objectively evident to any state conducting itself
in a matter in accordance with normal practice and in good faith.
The state of emerald isle therefore, does not have any authority to invoke on the basis
that the treaty violates its internal laws as it had itself violated manifestly.
Accordingly, an alleged violation of domestic law must concern fundamental provisions which
relate to the treaty power and must be evident to any state acting by normal practice and in good
faith.
It will be very difficult for a state to nullify a treaty on the basis of Art. 46. In a case concerning
the land and maritime boundary between Cameroon and Nigeria (Cameroon v Nigeria :
Equitable Guinea Intervening)10.
The ICJ held that there is no general obligation for states to keep themselves informed of
legislative and constitutional developments in other states which are or may become important
for the international relations of these states.
There is no general legal obligations for states to keep themselves informed of legislative and
constitutional development in other states which are or may becomes important for the
international relations of that State.11
It should, of course, also be noted that a state may not invoke a provision of its internal law as a
justification for its failure to carry out an international obligation. This is a general principle of

9 Compromis, 20,21.

10 [2002] ICJ Rep 303, para 265.

11 Ibid.

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international law12 and finds its application in the law of treaties by virtue of Art. 27 of the 1969
Vienna Convention. Also the State of Emerald Isle breached Art. 15 and 17 13. Art. 15 Cl. b the
party effected by the breach committed under this agreement shall suspend the Teitallik mining
project by giving a one month notice in writing to the other party.
Art. 17 Cl. b in case of pre mature termination, the agreement shall stand terminated by mutual
consent of the parties. The party which wishes to terminate this agreement shall give a three
month notice in writing to the other party.
So, the ordered indefinite suspension was issued on invalid grounds.14
The State of Emerald Isle ha itself not complied with the provisions of the agreement.
3. The said bilateral agreement was frustrated under the doctrine of frustration.
A contract may be discharged on the ground of frustration when something occurs after the
formation of the contract which rendered it physically or commercially impossible to fulfill the
contract or transforms the obligations to perform into a radically different obligation from that
undertaken at the moment of entry into the contract.
Although the doctrine of frustration has some affinity with common mistake ,in that both
doctrines are essentially concerned with the allocation of risks of an unforeseen event which
makes contractual performance more onerous or even impossible, it is customary to real the two
doctrines separately on the ground that common mistake is concerned with a common
misapprehension which was present at the date of entry into the contract whereas frustration is
solely concerned with events which occur after the date of formation of the contract.
The State of Emerald Isle is held responsible under the Doctrine of Frustration as when the traces
of hazardous wastes were found due to the mining project, it simply due to the growing pressure
of the local protest issued an in definite suspension15 order and when this deadlock could not be
resolved by diplomatic talks, the matter was referred to the ICJ.
12 See e.g. the Alabama Claims arbitration, G.B. Moore, International Arbitrations, New York, 1898, Vol.
I, pg. 495 and the Greco-Bulgarian Comunities case, PCIJ, Series B, No. 17, P. 32; 5 ILR, p. 4. This has
been recently re-affirmed in the Applicability of the Obligation to arbitrate under S. 21 of the UNHA case,
ICj J rep, 1988, pp. 12,34-5; 82 ILR, pp. 225, 252. as cited in Maclcolm N. Shaw, International Law,(4 th
edn), Cambridge University Press, p. 662.

13 An Agreement Concerning Minreral Exploration, Mining operation, and its Ancillary Activities.

14 Compromis, 23.

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4. The State of Emerald Isle did not have power to invoke the treaty and agreement under
error.
Art. 48 Cl. 1 VCLT provides that:
A state may invoke a error in a treaty as invalidating its consent to be bound by a treaty if the
error relates to a fact or situation which was assumed by that stats to exist at the time when the
treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
Paragraph (1) shall not apply if the state in question contributed by its own conduct to the error
or if the circumstances were such as to put that as to put that state on notice of a possible error.
Further, a state will not be able to claim error if by its own its own conduct it contributed to the
error.
Article 48 VCLT reflects the judgment of the ICJ in the case concerning the Temple of Preah
Vihear (Cambodia v. Thailand)(Merits)16 held the court rejected Thailands arguments as follows:
It is an established rule of law that the plea of error cannot be allowed as in element vitiating
consent if the party advancing it contributed by its own conduct to the error, or could have
avoided it, or if the circumstances were such as to put that party on notice of a possible error.17
5. The violations made by State of Emerald Isle lead to impossibility of performance 18 on
the part of Democratic Republic of Westaros.
Art. 61 Where the carrying out of the terms of the agreement becomes impossible because of the
permanent destruction or disappearance of an object indispensible for the execution of the treaty,
a party may validly terminate or withdraw from it. However, where the impossibility is only
temporary, it may be invoked solely to suspend the operation of the treaty.

15 Ibid.

16 [1962] ICJ Rep 6.

17 Ibid.

18 See e.g. Mc Nair, Law of Treaties, pp. 685-8 and Sinclair, Vienna Convention, pp. 190-2. as cited in
Maclcolm N. Shaw, International Law,(4th edn), Cambridge University Press, p. 669..

21 | P a g e
Impossibility cannot be used in this way where it arises from the breach by the party attempting
to terminate or suspend the agreement, of a treaty or other international obligation owed to any
other party to the treaty.19
As per the agreement The Teitallik mining was to be conducted in total four phases 20 but EGMA
of the State of Emerald Isle due to the growing pressure of the local protest from the natives, 21
issued an indefinite suspension order (within a span of 2.5 years) 22 to Hard-Rock to halt all the
mining operation with immediate effect23 and thus, within a span of 2.5 years.
6. The Democratic Republic of Westaros has not violated the Doctrine of Rebus Sic
Stantibus (fundamental change of circumstances)24.
There is a principle in customary International Law that where there has been a fundamental
change of circumstances since an agreement was concluded, a party to that agreement may
withdraw from or terminate it this is the doctrine of Rebus sis Stantibus. It is justified by the fact
that some treaties may remain in force for long period of time, during which fundamental
changes might have occurred. Such changes might encourage one of the parties to adopt drastic
measures in the face of a general refusal to accept an alteration in the terms of the treaty.

19 See Yearbook of the ILC, 1966, Vol. II, p. 256.

20 Compromis, 15.

21 Compromis, 23

22 Compromis, 16.

23 Ibid.

24 See e.g. C.Hill, the Doctrine of Rebus Sic Stantibus in international law, Leidien, 1934; O.Lissitzyn
treaties and change circumstances (Rebus Sic Stantibus), 61 AJIL, 1967, p. 895; P. Cahier, Le
Changement Fondamental De Circonstances et la Convention de Vienne de 1969 sur le Droit Des Traites,
Melanges Ago, I, P. 163 and Vamvoukis, Termination, Part1. See also Yearbook of the ILC, 1966, Vol. II,
PP. 257 et seq. Note The Decision in TWA Inc. v. Franklin Mint Corp., 23 ILM, 1984, pp. 814, 820, that a
private person could not plead the rebus rule, as cited in Maclcolm N. Shaw, International Law,(4 th edn),
Cambridge University Press, p. 669.

22 | P a g e
Art 62 of the VCLT which the ICJ regarded in many respect as a codification of existing
customary law25, declares that:
1. A fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of the treaty, and which was not for seen by the
parties, may not be invoked as a ground for terminating or withdrawing from the
treaty unless:
a. The existence of those circumstances constituted an essential basis of the consent
of the parties to be bound by the treaty; and
b. The effect of the change is radically to transform the extent of obligation still to
be performed under the treaty.
As the said mining project was to be completed in the undefined time limit of total four phases 26,
there could be relevant possibilities in fundamental changes of circumstances.

Issue 2
That the Democratic Republic of Westaros has not violated the general principles of
International Law.
1. Principle of State Responsibility.
1.1. Applicability of state responsibility under municipal laws.
Under the French civil law, a failure to comply with natural obligation 27 does not entail the
responsibility of the author of omission. It is not possible to argue that there exist at present a
rule of customary international law in relation to strict liability which plays the same role as Art.
1 of the ILCs articles on State Responsibility in relation to responsibility for breach of an
international obligation: a formulation such as any damage resulting from a lawful but
potentially dangerous act authorized by, or attributable to, a state, results in its liability is clearly

25 ICJ Rep, 1973, p.3; 55 ILR, p.183, as cited in Maclcolm N. Shaw, International Law,(4th edn),
Cambridge University Press, p. 670.

26 Compromis, 15.

27 Ie those obligations in return for which payment is not obligatory as a matter of law, but which
provide a sufficient cause to preclude an action for recovery of money as unduly paid once payment has
in fact been made: see article 1,2,3,5 Code Civil, as cited in as cited in James Crawford, Alain Pellet,
Simon Olleson, (eds), The Law of International Responsibility, (OUP 2010), pg 4.

23 | P a g e
unsustainable28. Thus, the DRW was not responsible to opt measures for environment protection
under the state responsibility.
States are not the only subjects of the International Law as the international court affirmed in the
Reparations for Injuries opinion.29 Being the subject of any legal system must involve being
subject to responsibilities as well as enjoying rights. Thus it would seen unproblematic to
substitute the words International Organizations or International Legal Person for state in
Article 1 of the ILC articles.30 Thus, it clearly establishes that if Democratic Republic of
Westaros was under state responsibility it would have certain rights too, but since no such rights
existed no question of duties arise( duties and rights being co-relative of each other).31
1.2. Relationship between law of treaties and law of responsibility( non applicability of
law of responsibility to treaties).
The relationship between the Law of Treaties and the Law of Responsibility has not been
specifically addressed in any codification projects. And, since the present case rests upon the
bilateral treaty and is covered under law of treaties, therefore the law of responsibility stands
inapplicable.
Art. 73 of the Vienna Convention on the Law of Treaties provides that Shall not prejudge any
question that may arise in regard to a treaty... from the international responsibility of the state 32,
While Art. 56 ARSIWA makes clear, according to its commentary, that the present articles are

28 See James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility,
(OUP 2010), pg 10.

29 Reparation for injuries suffered in the service of the UN, Advisory Opinion, ICJ reports 1949, p
174,179, as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010), pg 17.

30 See James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility,
(OUP 2010), pg 17,18.

31 Ibid.

32 1155 UNTS 311, as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of
International Responsibility, (OUP 2010), pg 107.

24 | P a g e
not concerned with any legal effects of a breach of a international obligation which... stem from
the law of treaties or other legal fields.33
A breach of International law by a state depends on the actual content of its International
obligations, and especially as far as treaties are concerned this varies remarkably from one state
to the next. Even under general international law, which might be expected to be virtually
uniform for every state, different states may be differently situated and therefore may have
different responsibilities. There is no such thing as a uniform code of international law, reflecting
the obligations of all states.34 Not all claims against the state involves international responsibility
even if international law may be relevant to the case
The Law of Responsibility determines the content of that responsibility, that is to say, the
consequences of the breach of the obligation. The Law of Treaties is not normally concerned
with the content of State Responsibility: in principle it is limited to the question of the existence,
content and duration of the obligation35.
As the international court confirm in the Gabcikoyo-Nagymaros Project Case nor does the court
need to dwell upon the question of the relationship between the law of treaties and the law of
state responsibility, to which the parties devoted lengthy arguments as to those two branches of
international law obviously have a scope that is distinct a determination of whether a convention
is or is not in force, and whether it has or has not been properly suspended or denounced, is to be
made pursuant to the law of treaties.
On the other hand an evaluation of the extent to which the suspension or denunciation of a
convention seen as incompatible with the Law of Treaties involves the responsibility of the

33 Commentary to article 56, para. 3, as cited in James Crawford, Alain Pellet, Simon Olleson, (eds),
The Law of International Responsibility, (OUP 2010), pg 107.

34 as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010), pg 20.

35 [L] existence, le contenu et la duree des obligation conventionnelles: P Weil, Droit Destraites et
Droit De la responsabilite, in R Rama Montaldo ed, liber amicorum en homage au Pr. Eduardo Jimenz de
arechaga. Le Droit international dans un monde en mutation (Monte Video, 1994), reproduced in P Weil,
Ecrits de droit international (Paris, PUF, 2000), 195, as cited in James Crawford, Alain Pellet, Simon
Olleson, (eds), The Law of International Responsibility, (OUP 2010), pg 107.

25 | P a g e
responsibility of the state which proceeded to it, is to be made under the Law of Responsibility.36
It has never been contested in the international law that the violation of a treaty obliges the state
concerned to repair its harmful consequences no matter whether this violation results from the
breach of the provision agreed on by the parties or of the rule governing their suspension or
termination in whole or in part.37
1.3. Application of state responsibility in matters of environment protection.
In the case of violations of International law relating to the protection of environment,
international responsibility is complicated by specific elements applicable in that field. 38
Environmental damage raises a difficulty related to the fact that, in modern society, damaged to
the environment cannot be completely avoided. It is inherent in industrial development.39
1.4. Notion of identifying the injured party.
There are cases where states other than the injuries sustain damage either directly or indirectly.
Hence, one cannot identify the injured state purely on the basis of damage caused by the breach
of an international obligation. Damage caused being the basis, it is submitted by the Democratic
Republic of Westaros that it had also suffered huge losses by the indefinite suspension order of
the State of Emerald Isle.
1.5. Counter measures.

36 Gabcikoyo-Nagymaros Project Case (Hungry/ Slovakia), ICJ reports 1997, p,38(para 47), as cited in
James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility, (OUP
2010), pg 107.

37 as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010), pg 109.

38 See P-M Dupuy, Letat et la repraration des dommoges catastrophiques, in FF Francioni & TT
Scovazzi (eds), International Responsibility for environmental harm London, Graham & Trotman, 1991,
141-145, as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010), pg 803.

39 as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010), pg 803.

26 | P a g e
According to ARSIWA Art. 50 clause 1, a counter measure can never undermine a rule of jus
cogens. This is readily understandable. These are the intransgressible principles of international
customary law, to use the words of the international courts.40
2. Principle of State Sovereignty.
It was held by the ICJ in the Corfu Channel Case ( Merits ) 41, that laying of mines could not
have been accomplished without the knowledge of the Albanian Government and further stated
that every state has a duty not to allow knowingly its territory to be used for acts contrary to the
rights of other states .so, it was not the duty of Democratic Republic of Westaros but of State of
Emerald Isle to firstly survey its territory and think upon the repercussions before entering into
agreement and not after it.
3. Doctrine of clean hands.
The doctrine of clean hands means that when the state itself violates its local laws and does not
fulfill international obligations it cannot hold the other state liable. And hence, when the State of
Emerald Isle has itself failed to fulfill the obligations it cannot bag Democratic Republic of
Westaros with the liability.
4. Principle of Necessity.
4.1. In the case of force majeure.
Since Roman Law, with its principle of Ad impossibilia nemo tenetur, force, majeure has been a
classic clause of exoneration from responsibility in most domestic legal system recognised as a
general principle of law by the Court of Justice by the European community, 42 force majeure
occupies an important place in the field of international commerce and contracts. 43 Pursuant to
Art. 23 Cl. 1 force majeure consists in the occurrence of an irrestible force or of an unforeseen
40 Legality of the threat or use of nuclear weapons, ICJ reports 1996, P 226, 257 (para 79), as cited in
James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility, (OUP
2010), pg 11.

41 (1949) ICJ Rep 4, 22.

42 Case number 145/85, Denkavit Belgia NV V Belgium [1987] ECR 565, as cited in James Crawford,
Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility, (OUP 2010), pg 475.

43 For a comparative analysis on this point, See S Szurek, La force majeure en droit international
(doctoral thesis, Universte Paris II Pantheon ASSAS, 1996), Vol I,65-112, as cited in James Crawford,
Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility, (OUP 2010), pg 475.

27 | P a g e
event, beyond the control of the state, making it materially impossible in the circumstances to
perform the obligations. The notion of irresistible force leads to the idea of coercion which the
state could not oppose or overcome. If an event is to qualify as the origin of the situation of force
majeure, it must be external to the state and must have been unforceable. In both cases, the
situation must escape the control of the state and must have rendered the performance of the
obligation in question materially impossible.44
5. Principle of Good Faith.
The principle of good faith is a general principle of international law , has been recoganized as
the foundation of the international legal order in the Nuclear Test Case (Australia v. France )45,
the ICJ held that : one of the basic principle governing the creation and the performance of legal
obligations, whatever their source, is the principle of good faith.
Under this principle state and non state actors are required to comply with binding obligations
imposed upon them by international law, irrespective of whether such obligations are derived
from treaties, customary rules , or any other source of international law. Thus, it was the duty of
SEI to abide by the treaty in good faith.
Contrary to the principle of pacta sund servanda, which applies only to treaties which are in
force, the principle of good faith is all encompassing as it even imposes obligations on a state in
the pre-rectification stage. In this respect Art.18 VCLT requires a state to refrain from acts which
would defeat the object and purpose of a treaty in a situation where a state has signed a treaty but
not yet rectified it , or when it has rectified it but it has not entered into force ,( but provided that
such entry is not unduly delayed) .
6. Principle of Pacta Sund Servanda.
The principle is embedded in Art. 26 VCLT which means that: every treaty in force is binding
upon the parties to it and must be performed by them in good faith. Art. 26 of VCLT emphasisze
the close connection between the principle of good faith and principle of pactum sunt servanda.

44 See commentary to article 23, as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The
Law of International Responsibility, (OUP 2010), pg 477.

45 [1969]ICJ Rep (para 46)

28 | P a g e
In the case concerning Gabcikovo-Nagymaros dam project case (Hungary v. Sylovakia ) 46, the
ICJ stated : that
Art. 26 VCLT combines two elements of equal importance, i.e. the principle of pacta sund
servanda and principle of good faith. Indeed each time when a state is in breach of the principle
of pacta sund servanda it also violates the principle of good faith.
The principle of pacta sund servanda applies only to treaties which are in force , not to invalid ,
suspended or terminated treaties.
7. Principle of free Consent.
The principle of free consent establishes that in a treaty a valid consent is necessary. In the
present case, the clearance granted by the State of emerald Isle to MMPLC to start the
operational phase shall be considered as a valid consent.
Also, Under the principle of Volenti Non Fit Injuria, when an injured state consents to an act or
conduct, which without that consent would be considered as a wrongful act, the delinquent state
cannot be held responsible in international law. So, when the State of Emerald Isle had
voluntarily consented to the treaty it cannot hold Democratic Republic of Westaros liable for
negative outcomes of it.
8. Principle of equity and equitable utilization.
The role of equity in international environmental law, as in general international law, is
controversial. There is of course nothing to stop states agreeing to settle disputes on an
equitable basis , but political accommodation should not be confused with determinations of
international law.

Issue 3
That the Democratic Republic of Westaros has not violated the General Principles of
International Environment Law and has not deviated from the precautionary approach.
1. The Democratic Republic of Westaros has violated none of the principles concerning
international environment law.
To say that rules and principles of international environmental law must be integrated with the
rest of the international law does not mean that the law is always the same for all states
regardless of their capabilities or differing circumstances in the development of international
46 [1997]ICJ Rep 7, paras 144-142.

29 | P a g e
environmental law. And thus the wide perspective of general principles concerning international
environment law cannot be fully applied between the parties
2. The Democratic Republic of Westaros has not violated the Principle of State sovereignty
over natural resources but it was State of Emerald Isle who deviated from it.
States are, in principle, free to decide how to manage their natural resources and their
environment; whether and to what extent they will protect the environment. So, the principle
clarifies the fact that it was the duty of State of Emerald Isle to manage and decide the extent of
exploitation of its natural resources.
It was the government of State of Emerald Isle who wanted to explore the unutilized sectors of
its economy and adopted new liberal socio- economic policies for it. So, it is submitted by
Democratic Republic of Westaros that the State of emerald Isle itself invited the exploitation of
its resources on its own risk.
2.1. Democratic Republic of Westaros in under no obligation under Rio
Deceleration.
Also, the Rio Declaration remains silent in specific regard to natural resources.
3. The Democratic Republic of Westaros has not violated Principle Concerning the Right
to Development but it was State of Emerald Isle itself do not comply with it.
Principle concerning the right to development:
Although partly drawn from existing UN general assembly resolutions and conventions on
economic and social rights, the legal status of right to development gas been and remains
doubtful. Critics have argued that this is not a right at all and point to its uncertain character in
the Declaration on the Right to Development adopted by the general assembly in 1986, and
reiterated in the 1993 Vienna declaration on human rights.
The UN General Assembly has also been careful to formulate the right to development in terms
which require respect for principles of international law concerning friendly relations and co
operation as well as sustainable development.47 But in practice development at one point or the
other would pose harm on the environment. And it is the responsibility of the concerned state to
protect its own environment and to decide upon their own limits of development.

47 End notes

30 | P a g e
Also the claim of such right whose legal existence is not certain cannot be argued upon and
treated as law in courts.
4. The Democratic republic of Westaros has no obligation under the Principle of
Sustainable Development.
4.1. Legal Status of Sustainable Development does not bind the democratic
Republic of Westaros.
The objective of Sustainable Development is expressed in conventions (EU Treaty, Climate
Change Convention, Biodiversity Convention) and other "hard law", as well as numerous pieces
of "soft law" (Rio declaration) and policy papers of international organisations etc. And, also
increasingly is found in national constitutions and legislations show casing a huge paradise but
none of them subscribe authenticated , reliable and prescribed measures.
Used as a basic argument in international court decisions. (Danube Case (Gabcikova
Nagymaros), Uruguay case (Pulp Mills), but ICJ was hesitant to accept it as a general
principle of law. It has legal importance, but its precise content and role remains a matter for
discussion. All in all it is too vague and uncertain concept to be recognized as customary
international law or a general principle of international environment law.
5. The Democratic republic of Westaros has not deviated from The principle of Common
but differentiated responsibilities.
This is principally an obligation to co-operate in developing the law, but it has significant
normative value in setting parameters within which responsibilities are to be allocated between
developed and developing states in the subsequent negotiation of further implementing
agreements or in the interpretation of existing agreements .
5.1. Principle 7 of the Rio Deceleration.
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health
and integrity of the Earth's ecosystem. In view of the different contributions to global
environmental degradation, States have common but differentiated responsibilities. The
developed countries acknowledge the responsibility that they bear in the international pursuit of
sustainable development in view of the pressures their societies place on the global environment
and of the technologies and financial resources they command.

31 | P a g e
The principle 7 does not provide equitable basis for co-operation between developed and
developing states on which the latter are entitled to rely in the negotiation of a new law to
address global environmental concerns .
6. The Democratic Republic of Westaros has not deviated from A Human Right to a good
environment it was State of Emerald Isle who failed to give to its citizens right to a good
environment.
In certain contexts it might be said that the management of a states own domestic environment is
a matter of states individual responsibility. Even before the Rio Conference , multilateral treaties
dealing with wildlife conservation, disposal of hazardous wastes , and human rights had already
touched on the international regulation of matters internal to the states concerned . The Rio
Declaration significantly extends the domestic reach of international environment law by
requiring states to enact effective environmental legislations (INSEERT FOOTNOTE 145); to
facilitate access or individuals to information, decision making process, and judicial and
administrative proceedings at national level.
7. The Democratic Republic of Westaros has not violated the mechanism of Precautionary
approach and fully avoided by it.
7.1. Mechanism of Precautionary approach.
The relevance of the precautionary approach is not limited to transboundary environmental risks.
However, as Principle 15 of Rio Deceleration stresses that it must be widely applied by states
according to their capabilities. It subtly connotes that no rigid principle of application of
precautionary approach exists. Also, the principle helps to identify whether a legally significant
risk exists by addressing the role of scientific uncertainty, but it says nothing about how to
control that risk, or about what level of risk is sociably acceptable.
The precautionary approach is also not universally applied. The states have been selective in
adopting it.48
8. It was the duty of the State of Emerald Isle to conduct Environment Impact Assessment
Democratic Republic of Westaros was under no obligation to conduct it.
8.1. Principle 17 of the Rio Deceleration.

48 As applied in Climate change and Bio-Diversity Convention , but not in 1994 Nuclear Safety
Convention.

32 | P a g e
Environmental impact assessment, as a national instrument, shall be undertaken for proposed
activities that are likely to have a significant adverse impact on the environment and are subject
to a decision of a competent national authority.
The principle recent developments in international law and state practice; their present status as
principles of general international law is more questionable.
9. The Democratic Republic of Westaros is not liable under Polluter Pays Principle.
According to Kiss and Beurier it can at the least be said that Principal 16 of the Rio Declaration
49

generates uncertainty in relation to the scope of the obligation for the polluter to bear the cost of
the pollution he has caused. And thus the law cannot rely upon such uncertainties.
The conventional text which referred to the polluter pay principle often do not establish
effective enforcement mechanism.50 Principle 16 of Rio Declaration states that the:
National authorities should endeavor to promote the internalization of environmental costs and
the use of economic instruments, taking into account the approach that the polluter should, in
principle, bear the cost of pollution, with due regard to the public interest and without distorting
international trade and investment.
As per the above wordings it cannot be said that the polluter pay principle is intended to be
legally binding. Principle 16 simply lacks the normative character of a rule of law and also it has
not been uniformly applied. The polluter pay principle and the general policy of internalizing
environmental costs cannot be treated as a rigid rule of universal application, nor are the means
used to implement it going to be same in all cases.
At most it can be ascertained that the states, inter governmental regulatory institutions, and
courts can and should take into account of the principle in development of environment law and
policy; but they are in no sense bound by the international law to make polluters pay.

Issue 4

49 AC Kiss & JP Beurier, Droit International De L environment (3 rd Edn, Paris, Pedone, 2004, 144 FF),
as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International
Responsibility, (OUP 2010), pg 879.

50 as cited in James Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility, (OUP
2010), pg 879.

33 | P a g e
That The Democratic Republic of Westaros has not violated the existing municipal
legislations of The State of Emerald Isle. But, The State of Emerald Isle itself failed to
comply with their own municipal law.
1. That the Democratic Republic of Westaros has not violated any provisions of The Aqua
Act, 1993. But, The State of Emerald Isle itself failed to comply with the provisions of
the Act.
1.1. That State of Emerald Isle itself failed to achieve the objective of the Act.
The State also failed in deterring the fair and maintain use of water in sustainable manner. As the
state itself initiated the violation of its domestic laws penalty under polluter pays principal
Amendment made in the Local Area Plan.
1.2. The State of Emerald Isle violated Cl. a of S. 19 of the Act.
S. 19 Cl. a of the Aqua Acts which states the right to water or use of water has been completely
violated by the State of Emerald Isle. It being the domestic law of the State. There Stood the
responsibility of the state to limit the beneficial use of water and shall not extend to unreasonable
and exploitation of water.
1.3. The State of Emerald Isle violated Cl. b of S. 19 of the Act.
As per this Cl. water resources within the territorial jurisdiction of the State is the property of the
people of the State and the right to the use of water may be acquired by appropriation in the
manner as provided under this law. So, it was The duty of the State of Emerald Isle to determine
in what ways the water should be used.
1.4. Empowers the State of Emerald Isle to determine the use and amount of the water.
And Cl. d empowers the State to determine the use and amount of the water, surface stream and
any underground source of water that can be utilized for any industrial, commercial and other
purposes. So The State of Emerald Isle has the complete authority over the determination of the
use and amount of the water.
2. The Democratic Republic of Westaros has not violated any provisions of Environmental
Governance and Monitoring Act,1980. But, The State of Emerald Isle itself failed to
comply with the Act.

34 | P a g e
The State of Emerald Isle being the members of UN, WTO 51 and various international treaties,
protocols, conventions and agreements52 etc. Failed to comply with the standards of those
international treaties, protocols, conventions and agreements to which it was either signatory or
has ratified. And no such international standards were followed in their municipal laws. So, The
Democratic Republic of Westaros was under no obligation to comply with the provisions of the
Act.
2.1. The State of Emerald Isle failed to lay down any environmental quality standards
under S. 17 of Act.
S.17 Cl. 1 gives power to the State of Emerald Isle to lay down Environmental Quality standards
with regard to the environmental conditions related to air, water, soil and noise for the protection
of human health and the prevention of any environmental pollution. But, State of Emerald Isle at
first did not lay down any environmental quality standards which shall be complied with while
effecting the mining project. Thereby leading to violation of S. 17 cl. 1 and no subsequent
activities of periodical revision and public information as stated in S. 17 cl. 2 were done. While
The State of Emerald Isle itself cleared the forest land located around the estuaries and riverines
and handed it over to Hard Rock to begin the first phase of mining and refining operation on 5 th
Dec.,2009.53 The clearance of the mining project was criticised by the international
environmental agencies.54
Since The State of Emerald Isle failed to lay down any standards under S. 17 Cl. (1) of the Act it
automatically violates Cl. (3) of S. 17 of the act. As it gives the state the power to make rules to
comprehensively and effectively implement Environmental Quality Standards to achieve the
objective of the said provision.
2.2. The State of Emerald Isle itself violated the provisions of S. 134 of the Act by doing
arbitrary amendment in its Local Area Plan 1984.

51 Compromis, 27.

52 Ref. Annexure 4.

53 Compromis, 16.

54 Such as Enviro-Watch, SIDA, and World Conservation Monitoring Centre etc., See, Compromis 16.

35 | P a g e
Environmental pollution control in specific areas as per section 134 of the Act was overlooked
and the change in the local area plan was made for its own benefit and was arbitrary in nature.55
The State of Emerald Isle did not comply with S. 134 Act and the state itself initiated the
pollution and contamination of Aquatic ecosystem by clearing the forest land for starting the
mining project56 even thou it was criticised by the international environment agency.57
So the State of Emerald Isle does not hold any authority to held Westaros liable for the pollution
and take an urgent decision to halt the mining operation under S. 134 Cl. 2 of the Act.
3. The Democratic Republic of Westaros has not violated any provisions of Environmental
Governance and Monitoring Act,1980. But, The State of Emerald Isle itself failed to
comply with the provisions of the Act.
3.1. The State of Emerald Isle itself did the Arbitrary Clearance of the forest land.
Though the clearing of the forest land around the estuaries and riverines were criticized by
various international environmental agencies such as SIDA, Enviro-watch etc. 58, still the clear
land was handed over to Hard Rock to begin the first phase of mining and refining operation 59.
Enviro-watch in its periodical subsequently stated the such act was done arbitrarily, cleared the
forest land and amended its domestic laws60 to facilitate the mining project without having regard
to the environmental safeguards.
The state of Emerald Isle clearly violated its own domestic laws and showing no environmental
safeguards measures bags for itself penalty.
3.2. The State of Emerald Isle violated S. 53 of the Act.
State of emerald Isle did not follow any provision regarding public consultation as mentioned
under S. 53 Cl. 1 & 2. The mining operation was not put to public consultations and neither their
55 Compromis, 20.

56 Compromis, 16.

57 Compromis, 20.

58 Compromis, 16.

59 Ibid.

60 Compromis, 20.

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concerned were obtained in writing or words. The state itself overlooked the basic responsibility
of concerning the locals of the area who were to be effected by the said mining operation. The
state therefore has no reasonable answer for the question in violation of its domestic laws when
raised by the representations of the locals.
4. The State of Emerald Isle itself violated its Local Area Plan by amending it arbitrarily.
4.1. The State of emerald Isle failed to achieve the objective of the Local area Plan.
The state of Emerald Isle failed to achieve the objective of the act that was to ensure every
human being safe, clean affordable and accessible water for its basic consumption and needs by
clearing the forest lands near riverines and estuaries and thou criticised handed over the land to
Hard rock for mining operation.
The State of Emerald Isle did not determine any use an amount of water which can be utilised for
any industrial, commercial or such other purposes or any development purposes like mining etc
or not. This plan was put to protect the public access and to use the state land and its resources by
keeping the balance between development and environment.
4.2. The State of Emerald Isle completely shifted its focus from the original Local Area
Plan, 1984.
The amendment to local area plan 2010 made a complete shift from the original plan of 1984 and
shifted its focus from preservation and maintenance of ecology and related classification of land
to introducing of a new land classification of land to introduction of a new land classification as
per its use such as agriculture, mineral etc. Under the mining zone, it includes the Teitallik
Mining Project. It also made clear that economic development plan like Teitallik Mining Project
doesnt have to compatible with habitat, fishing and other subsistence activities.61
The State also failed in deterring the fair and maintain use of water in sustainable manner. As the
state itself initiated the violation of its domestic laws penalty under polluter pays principal
Amendment made in the Local Area Plan.
4.3. Original Local Area Plan,1984.
Prior to this amendment the State of emerald Isle had a local are a plan 1984 which stated the
protecting fish, wildlife, habitat as well as hunting and fishing is of utmost concerned. Its object
was to guide the State for land use decisions such as whether to allow development like mining,
infrastructural development and any other pr for non-natural use of land. The said Plan was put

61 Compromis, 20.

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in place to ensure that State land management environmental concerns, protect public access and
use to State land and its resources. State agencies take the plan into account when deciding
whether or not to approve the use of specified areas of State lands for particular activities or
development, and regulators take it into account when considering permits for activities or
development that does occur.62
4.4. Customary definition of necessity.
In its customary law definition of necessity, the ICJ included the condition specified in Art. 25
Cl. 2 Sub Cl. b that the state invoking necessity cannot have contributed to the occurrence of the
situation of necessity.63 The ILC has stressed that necessity must be distinguished from a
purported fundamental right of state survival.
Therefore, the State of Emerald Isle itself made great violations of its domestic laws. This
amended plans clearly mentions that development plans like Teitallik mining project does not
have to be compatible with habitat, fishing and other subsisting activities. Thus State of Emerald
Isle bags no opportunity to held Westaros liable when the initiation was done by the home state.

62 Ibid.

63 Gabsikoyoyo-Nagimaro Project case, (Hungry/Slovakia), ICJ reports, 1997, P 7,41, Para 52, as cited in James
Crawford, Alain Pellet, Simon Olleson, (eds), The Law of International Responsibility, (OUP 2010), pg 496.

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 Prayer
Wherefore, may it be please the Court in the light of the questions presented, arguments
advanced, and authorities cited, to adjudged and declare that: The Democratic Republic of
Westaros respectfully requests this Honorable Court to:
Declare that the Democratic Republic of Westaros has not breached the bilateral agreement and
the mining agreement. But State of Emerald Isle itself did not comply with the provisions of the
agreements.
Declare that the Democratic Republic of Westaros has not violated the general principles of
International Law.
Declare that the Democratic Republic of Westaros has not violated the General Principles of
International Environment Law and has not deviated from the precautionary approach.
Declare that The Democratic Republic of Westaros has not violated the existing municipal
legislations of The State of Emerald Isle. But, The State of Emerald Isle itself failed to comply
with their own municipal law.
Hence, declare the suspension order to be invalid awarding damages due to the suspension order.

AGENTS FOR THE RESPONDENT,

The Democratic Republic of Westaros

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