9A

1st Teehankee Rule of Law Moot Competition

Before the International Court of Justice

Petition for the Applicant

2015 November

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 Table of Contents

I. Cover page

1
II. Table of Contents

. 2
III. Index of Authorities

. 3
IV. Statement of Jurisdiction

4
V. Question Presented

. 5
VI. Statement of Facts

.. 6
VII. Summary of Pleadings

9
VIII. Main Pleading ...

11
IX. Prayer for Relief .

.. 17

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 Index of Authorities

Pages
Treaties/Convention
1987 Resolution on transboundary air pollution, Institut 15
de Droit International (IDI).

Responsibility of States for Internationally Wrongful 13, 21

Acts 2001
Rio Declaration on Environment and Development 12, 19, 21
Stockholm convention on persistent organic pollution 12, 16, 19, 21
Case Laws
Factory Chorzow, Merits, 16
Megalidis Case 10
Palmas Case
Trial Smelter Arbitration 13, 16
Commentaries
Environmental Protection and Sustainable 13
Developmen:
Legal Principles and Recommendations
(London, Graham and Trotman/Martinus Nijhoff, 1987),
adopted by expert groups

Jutta Brunee, Of Sense and Sensibility: Reflections on 18

International Liability Regimes as Tools for Environment
Protection, The International and Comparative Law
Quarterly 53, no. 2 (2004): 354

OECD, Legal Aspects of Transfrontier Pollution 19

1987 Resolution on Trans-boundary Air Pollution, 11
Institut de Droit International (IDI)
16
Report of the International Law Commission Fifty-Third
session

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 Statement of Jurisdiction

The International Court of Justice has jurisdiction in in the present

dispute between the parties concerning the haze crisis that occurred in

different parts of Southeast Somchai by virtue of the Special

Agreement Between the Republic of Megat and the Federal Republic of

Luka signed and submitted the Court in accordance with Article 40(1)

of the Statute of International Court of Justice.

Under Article 3 of the Special Agreement, the Court is requested:

(a) To decide the Case on the basis of the rules and principles of

general international law, as well as any applicable treaties; and,

(b) To determine the legal consequences, including the rights and

obligations of the Parties, arising from its Judgment on the

questions presented in the Case.

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 Questions Presented

I. Whether the Federal Republic of Luka violated international

law by facilitating, allowing and otherwise failing to prevent

the 2013 haze crisis; and,

II. Whether the Federal Republic of Luka is responsible for the

2013 haze crisis and therefore must compensate the Republic

of Megat for the damage caused.

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 Statement of Facts

1. Southeast Somchai is a sub-region of the continent of Somchai,

located in the southern part of the Somchai-Pacific. It is

composed of fourteen states.

2. The Republic of Megat is a small state having a population of 5

million people, developed itself into a wealthy first nation

country by improving itself economically in just a span of three

decades. On-going land reclamation projects have expanded the

countrys land area for the past years. Megats capital is Azul City

located in the southwestern part of the island.

3. Federal Republic of Luka is located east of Megat. Luka has vast

areas of wilderness that support the world's second highest level

of biodiversity. About 45% of Lukas territory consists of forests

and wildlife. The country has abundant natural resources, yet

poverty remains widespread.

4. Somchai has its history of haze crises. The first haze crisis in

Southeast Somchai started in late 1997 and lasted until February

1998. Civilians in the state of Maningkan staged a protest against

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 its dictatorial government. Due to the unrest, a large forest fire

caused haze spreading throughout Southeast Somchai.

5. The second haze crisis was in 2001. Agricultural companies in

the Democratic State of Karo used fire to clear out forests for

pineapple plantations. Local farmers did the same.

6. After three more minor incidents of haze in the region in the span

of 2004 to 2010, the members of the Association of Somchais

Southeast Nations (ASSEN) ratified its Agreement on

Transboundary Haze (See schedule B). Only nine (9) states

enacted a local legislation transforming the treaty into a

domestic law. These are: Anjadesh, Karo, Valenesia, Klarikistan,

Neve, Pandia, Megat, North Merida, and South Merida.

7. The Republic of Megat has had a serious case of air pollution for

the past decades.

8. On 6 July 2013, the National Aeronautics and Space

Administrations (NASA) of the Federal Republic of Luka captured

images of smoke from wildfires in Lukas eastern main island of

Kalimartin. Due to the monsoon winds, the haze coming from the

wildfires was blowing west towards Miguarta, the western main

island, towards a small portion of northern Neve and towards

southern Megat.
9. In 25 July 2013, the Megatian Department of Health stated in its

second quarterly report that the cases of respiratory illnesses in

all five (5) provinces over the southern part of the state

increased by 20%. Thirty percent (30%) of the cases of illnesses

resulted in death.

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10. James Nobres has been serving as the Prime Minister of the

Federal Republic of Luka for the past two decades. In 2010, Prime

Minister Nobres passed a decree called the Luka Forest

Protection Law
11. In 2012, Luka granted FTSC a franchise to operate as a

lumbering company.
12. Local communities called Ifrittribes live in the northern part

of Moltres Forest. These communities follow a seasonal calendar.

The Ifritcalendar is divided into four seasons: late June to late

September is the clearing season, early October to late January is

the planting season, January to February is the praying and

dancing season, and March to June is the harvesting season.

13. Since the month of July is the last month of the rainy

season and falls on the clearing season, the Ifrit community

performs a fire ritual over small areas of land, including chants

and dances while lighting animals, shrubs, and trees on fire.

14. Meanwhile in Megat, another report was submitted by the

Ministry of Health of Megat to its government showing that the

cases of respiratory illness in Megat have now increased to 40%.

15. The Republic of Megat and the Federal Republic of Luka

both adhere to the international principles of incorporation and

transformation. Nevertheless, the 1932 Constitution of Luka

provides

Article V: The Parliament

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 Section 10. International Agreements: No treaty or

international agreement shall be valid and effective unless

concurred in by at least three-fourths of all the Members of the

Parliament.

Summary of Pleadings

I. The Federal Republic of Luka violated international law by facilitating, allowing

and otherwise failing to prevent the 2013 haze crisis

First, there is an internationally wrongful act of a State when conduct, consisting

of an act or omission, is attributable to the State under international law and constitutes a

breach of an international obligation of the State, and both are present in this case.

Second, the Federal Republic of Luka failed to adopt measures that would prevent the

haze crisis when deployment of military personnel was made only on October 30 when in

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fact, crisis have been present for several months already. And also, it did not sign in the

Agreement on Trans-boundary Haze ratified by ASSEN implicating negligence in its

responsibility bound by the international convention. Third, despite the prohibition in the

use of fire to clear areas for planting and harvesting, the Ifrit still followed their seasonal

calendar in doing chants and dances while lighting animals, shrubs, and trees on fire

which triggered continuous effect of haze1.

II. The Federal Republic of Luka is responsible for the 2013 haze crisis and

therefore must compensate the Republic of Megat for the damage it caused.

First, there are four material elements to constitute that there is an environmental

damages, must be established, (1) fauna, flora, soil, water and climatic factors; (2)

material assets (including archaeological and cultural heritage); (3) the landscape and

environmental amenity; and (4) the interrelationship between the above factors. 2All of the

said elements are present in this case. Second, it is an established mandate of the

international convention that the state which produced such pollution must be responsible

for the damage it cost. Third, the Federal Republic of Luka through its Prime Minister

admitted the damage caused by the haze crisis to the Republic of Megat by addressing an

apology to the latter in the ASSEN-GNs emergency meeting. And lastly, failure to the

responsibility to guarantee non-repetition of the activities existed when local farmers still

exercised the use of slash-and-burn despite of previous incidents reported about such

technique.

1 The Facts, para.18

2 Sands, Principles of International Environmental Law, page 869

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Page 11 of 26
 Pleading

I. The Federal Republic of Luka violated international law

by facilitating, allowing and otherwise failing to prevent

the 2013 haze crisis

The Federal Republic of Luka facilitated, allowed and otherwise

failed to prevent the 2013 haze crisis, which is a clear violation of

Lukas international obligation arising from relevant instruments,

namely, the ASSEN Agreement on Transboundary Haze Pollution, the

Stockholm Convention on Persistent Organic Pollutants, the Covention

on Conservation of Nature in the South Pacific, and, the general

principles of international law.

Lukas National Aeronautics and Space Administration (NASA) on

6 July 2013 detected wildfires in Lukas eastern main island of

Kalimartin. The haze coming from the wildfires was blowing towards

west Somchai, including towards southern Megat. In 24 August 2013,

there were 139 hotspots of fires all over Moltres Forest located in Palau

Province, Kalimartin, in which four thousand heactares in the forest

were affected by the fire. A forest ranger Observation Report on 20

October 2013 indicated that the monsoon winds blowing west have

intensifiedand that fires are apreading faster than usual, in and out

of control manner. Three days thereafter, Lukan authorities reported

that the hotspots detected have increased to 170. The extent of forest

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fire in Luka was so huge that by October 30, a total of 3,200 Lukan

military personnel, as well as helicopters and aircraft were deployed to

fight the fires. About 5,000 Lukan civilians extended their help.

The Republic of Megat suffered the catastrophic effect of the

2013 fire haze originating from the Federal Republic of Luka. In 25 July

2013, Megatian Department of Health reported that cases of

respiratory illness in all of the five (5) provinces os the state increased

by 20%, thirty percent (30%) of which resulted in death. The Pollutant

Standrads Index (PSI) reading in Megats souther city of Azul indicated

that on 23-30 July 2013, air particles during most of the period have

become either Unhealthy or Very Unhealthy. It was even registered

from 25 to 28 July 2013 that air particles was Hazardous. The

Guardians of the Air subsequently found that during the period of April

to September 2013, air particles in Azul of southern Megat was

recorded in most weeks to be either Unhealthy or Very Unhealthy.

The air particles was even recorded as Hazardous in five (5) weeks of

the said period. In about October of the same year, another report

submitted to Megatian Department of Health indicated that cases of

respiratory illness increased to 40%.

1.1. The Federal Republic of Luka violated the Association

of Somchais South East Nations Agreement on Transboundary

Haze Pollution.

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 The members of the Association of Somcahis Southeast Nations

(ASSEN) ratified the Agreement on Transboundary Haze after incidents

of haze in the region in 2004 to 2010. Article 3 of said agreement

creates state obligations that include the following: Article 3(1)

[R]esponsibility to ensure that activities within their jurisdiction or

control do not cause damage to the environment and harm to human

health of other States or of areas beyond the limits of national

jurisdiction. ; and, Article 3(3) [T]ake precautionary measures to

anticipate, prevent and monitor transboundary haze pollution as a

result of land and/or forest fires which should be mitigated, to minimize

its adverse effects

The agreement3 also says that, Each Party shall undertake measures to prevent

and control activities related to land and/or forest fires that may lead to transboundary

haze pollution, which include, among others (a.) Developing and implementing

legislative and other regulatory measures, as well as programmes and strategies to

promote zero burning policy to deal with land and/or forest fires resulting in

transboundary haze pollution (d.) Strengthening local fire management and

firefighting capability and co-ordination to prevent the occurrence of land and/or forest

fires. (g.) Ensuring that legislative, administrative and/or other relevant measures are taken to

control open burning and to prevent land clearing using fire.

3 The Facts, Schedule B, Article 9

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The Federal Republic of Luka failed to adopt legislative and regulatory measures 4 that

would promote zero burning policy and the same was late in acting on the report of forest

ranger.5

The haze crisis is not a new occurrence. There was already a fire

haze in as early as 1997 which lasted until February 1998. A second

haze crisis happened in 2001 when agricultural companies in the

Democratic State of Karo used fire to clear forest areas for pineapple

plantation6. Prime Minister, James Nobres has been in office as Prime

Minister of the Federal Republic of Luka for the past two decades 7. He

was already Lukas Prime Minister during the first and second haze

crisis, as such, he could have implemented a policy that would have

prevented the said crisis from recurring.

Ifrit, a Lukan tribe, follows seasonal calendar.8 Part of their rituals

include lighting animals, shrubs, and trees on fire. 9 These activities

contributed significantly to the haze problem, yet Luka failed to

interfere with so that the fire ritual being practiced by the tribe,

4The Facts, paragraph 7

5The case, paragraph 26

6The Case, paragraph 05 and 06

7 The Case, paragraph12

8The Case, paragraph 18

9 The Case, paragraph 19

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thereby contributing to the haze fire crisis experienced by the Somchai

region in 2013.
In 2012, Luka granted the Forest Technical Services (FTSC) a

franchise to operate as a lumbering company in Moltres Forest in

Kalimartin. The forest fire from Moltres caused by FTSC has

significantly increased the health risks in Megat. Such fact was

admitted by Prime Minister Nobres himself in his formal apology

delivered before the ASSEN-GNs emergency meeting in 3 October

2013.
In the 2012 License and Joint Venture Agreement between Luka

and FTSC, no precautionary measures were put in place to effectively

prevent and monitor transboundary haze pollution as a result of land

and/or forest fires. In the said 2012 Agreement, FTSC was expected to

accomplish clearing of a 6,000-hectare area of forest land. Section 2 of

the 2012 Agreement, have directly or indirectly, facilitated, allowed

and otherwise failed to prevent FTSC from causing forest fire in Moltres

and contributing in the 2013 haze crisis.

1.2. The Federal Republic of Luka violated general principles

of international law

The Republic of Megat is aware that the 1932 Constitution of

Luka requires that for an international agreement to become valid and

effective must be concurred in by at least three-forths of all the

Members of the Parliament. Luka has not yet enacted a local

10
legislation transforming the Agreement into a domestic law, but
10 The Case, paragraph 7

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notwithstanding, Luka is still liable for breaching the ASSEN

Agreement on Transboundary Haze by virtue of the principle known in

general principles of international law called treaties sub sperati. The

Megalidis11 case explains that treaties sub sperati, It is the principle

of the law that already with the signature of a treaty and before its

entry into force, there exist for the contracting parties an obligation to

do nothing which may injure the Treaty by reducing the importance of

its provisions It is of interest to state that this principle which really

is an expression of the principle of good faith which in the foundation

of all law and all convention has received application in a number of

treaties. As expounded by the Greco-Turkish Arbitral Tribunal:

It is a principle of law that already with the signature of a treaty and before its

entry into force, there exists for the contracting an obligation to do nothing which

may injure the Treaty reducing the importance of its provisions12

This means that Luka The it is incumbent on Luka to fulfill the purpose and object

of the Agreement in Transboundary Haze and that Luka is bound by it until such time that

it made an intension clear not to become a full party to Agreement. The Federal

Republic of Luka follows the principle of transformation 13 and under this

further bolster the argument that indeed, under the Agreement, and

11 Megalidis Case, page 890 at p.395

12 Megalidis Case (1926), 8. T.A.M., 390, at 395.

13 The Case, paragraph 30

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applying the principle of treaties sub sperati, Luka is responsible and

liable for the 2013 fire haze.

States incur responsibility under international law for any breach

of their international obligations with respect to trans-boundary air

pollution.14 As such, states are expected to conclude international

treaties and enact laws and regulations to ensure an effective system

of prevention and compensation for victims of trans-boundary air

pollution.

The Stockholm Convention on Persistent Organic Pollution, to

which Luka and Megat are both parties to, states are obligated to

implement measures to prevent the adverse effects of persistent

organic pollutants at all stages of their life cycle. 15 In order to protect

the environment, the precautionary approach shall be widely applied

by States. 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

degradation16. The expert group in the Environmental Law of the World

Commission on Environment and Development (Brundtland

Commission) has recommended that states shall prevent or abate any

14Art. 11(2), 1987 Resolution on Trans-boundary Air Pollution, Institut

de Droit International (IDI)

15 Stockholm Convention on Persistent Organic Pollution page 4 par. 6

16Rio Declaration, Principle 15.

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trans-boundary environmental interference or a significant risk thereof

which causes substantial harm.17

According to the Trail Smelter case, 18 "It would not be to the

advantage of the two countries concerned that industrial effort should

be prevented by exaggerating the interests of the agricultural

community. Equally, it would not be to the advantage of the two

countries that the agricultural community should be oppressed to

advance the interest of industry."

Luka, by its acts and omissions, failed to observe its obligations

not only under the Agreement on Transboundary Haze. In particular it

failed to observe the principle of not damage to the environment and

harm to human health of other States or of areas beyond the limits of

national jurisdiction and the principle of precautionary measures.

These are principles and at the same time state obligations which Luka

failed to observe.

II. The Federal Republic of Luka is responsible for the

2013 haze crisis and therefore must compensate the

Republic of Megat for the damage it caused.

17 Environmental Protection and Sustainable Development: Legal
Principles and Recommendations (London, Graham and
Trotman/MartinusNijhoff, 1987), p. 75,

18 Trail Smelter Arbitration Case, page 36

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 The failure of Luka to immediately address the fire haze problem

constitutes an internationally wrongful act. There is an internationally

wrongful act when state conduct consisting of action or omission is: (a)

attributable to the state under international law; and (b) constitute a

breach of international obligation of the state 19. Although Luka has the

right to exploit their own resources pursuant to their own

environmental policies, it also has a responsibility to ensure that

activities within its jurisdiction or control do not cause damage to the

environment of other states or of areas beyond the limits of national

jurisdiction20. The images presented by NASA in July 2013 indicated

that the smoke from wildfires in Lukas eastern main island of

Kalimartin, was going west towards southern of Megat. These acts

constitute a breach of international obligation of Luka, and therefore

constitute an internationally wrongful act. Luka is then under obligation

to make full reparation for the injury caused by the internationally

wrongful act. Reparation also includes any damage, whether material

or moral, caused by the internationally wrongful act of a state.21

19Article 2 of the ILC Articles on State Responsibility

20Stockholm Convention on Persistent Organic Pollution

21 Report of the International Law Commission Fifty-Third session

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 According to the Factory at Chorzo22, The essential principle

contained in the actual notion of an illegal act a principle which

seems to be established by international practice and in particular by

the decisions of arbitral tribunals is that reparation must so far as

possible wipe out all the consequences of the illegal act and

reestablished the situation which would, in all probability, have existed

if the act had not been committed. Restitution in kind, or, if this is not

possible, payment of a sum corresponding to the value which a

restitution in kind would bear; the award, if need be, of damages for

loss sustained which would not be covered by restitution in kind or

payment in place of it such are the principles which should serve to

determine the amount of compensation due for act contrary to

international law.

In the present case, Luka should compensate the Republic of

Megat for an unlawful act, that is, restitution or its value, and in

addition damages for the loss sustained as a result of the wrongful act.

II.1 As the source of the pollution, Luka should bear

costs for the damages it caused.23

22Factory at Chorzow, Merits, 1928

23 Principle 16, Rio declaration

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 Based on the principles of no harm and state responsibility

for environmental harm, states should not cause harm to other

territories.24 States have a duty to prevent transboundary

environmental harm and an obligation to pay compensation for the

harm they cause.25

This shift towards civil liability for transboundary

environmental damage is due to the difficulty in developing the law on

state responsibility for environmental harm, and the main standard for

due diligence being limited to channelling damage costs to the state

from which pollution originates.26 Polluters causing transfrontier

pollution should be subject to legal or statutory provisions no less

severe than those which would apply for any equivalent pollution

occurring within their country, under comparable conditions and in

comparable zones, taking into account, when appropriate, the special

24 David Hunter, James Salzman and Durwood Zaelke, International

Environmental Law and Policy, 2nd ed. (St. Paul, Minnesota: Foundation
Press, 2002), p. 419.

25 Rebecca M. Bratspies and Russel A. Miller, eds., Transboundary

Harm in International Law Lessons from the Trail Smelter Arbitration
(Cambridge, UK: Cambridge University Press, 2006), p. 3.

26 Jutta Brunee, Of Sense and Sensibility: Reflections on International

Liability Regimes as Tools for Environment Protection, The
International and Comparative Law Quarterly 53, no. 2 (2004): 354

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nature and environmental needs of the zone affected. 27 Without

excluding the considerations that equity always takes into account.... it

is a fair and reasonable demand on the part of a sovereign that the air

over its territory should not be polluted on a great scale by sulphurous

acid gas, that the forests on its mountains, be they better or worse,

and whatever domestic destruction they may have suffered, should not

be further destroyed or threatened by the act of persons beyond its

control, that the crops and orchards on its hills should not be

endangered from the same source... . Whether Georgia, by insisting

upon this claim, is doing more harm than good to her own citizens, is

for her to determine. The possible disaster to those outside the State

must be accepted as a consequence of her standing upon her extreme

rights28

II.2Luka acknowldeged the damage it caused to Megat.

The Federal Republic of Luka through its Prime Minister admitted

the damage caused by the haze crisis to the Republic of Megat by

issuing a formal apology to the latter in the ASSEN-GNs emergency

meeting29. According to the Rio Declaration on Environment and

Development, states shall develop national law regarding liability and

27 OECD, Legal Aspects of Transfrontier Pollution, op. cit., p. 61.

28 Smelter 1965

29The Case, para. 24

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compensation for the victims of pollution and other environmental

damage. States shall also cooperate in an expeditious and more

determined manner to develop further international law regarding

liability and compensation for adverse effects of Environmental

damage caused by activities within their jurisdiction or control to areas

beyond their jurisdiction30.

The damage caused by the haze crisis due to Lukas inabilityto

address and prevent its prevalence should be enough to compensate

the Republic of Megat. States shall cooperate to develop further the

international law regarding liability and compensation for the victims of

pollution and other environmental damage caused by activities within

the jurisdiction or control of such States to areas beyond their

jurisdiction31.

II.3Luka has state responsibility to guarantee the non-

repetition of the polluting activities.

A state responsible for an internationally wrongful act is under an

obligation to cease that act, if it is continuing, and to offer appropriate

assurances and guarantees of non-repetition if the circumstances so

30Rio Declaration on Environment and Development, principle 13

31Stockholm Declaration of the UN Conference on the Human

Environment

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require, and to make full reparation for the injury caused by the

internationally wrongful act.32

It is evident from the surrounding circumstances that Luka failed

control and supervise the activities of its citizens which caused the

haze crisis. Despite previous, incidents reported about the use of slash-

and-burn clearing method there are still local farmers who exercise

such technique.33

32 ILC Articles on the Responsibility of States for Internationally

WrongfulActs (2001),

33 The Case, paragraph. 13

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 PRAYER FOR RELIEF

In the light of the issues raised, the arguments advanced, and

authorities cited, the Republic of Megat request the International Court

of Justice to adjudge and declare that:

1. Federal Republic of Luka violated international law by

facilitating, allowing and otherwise failing to prevent the 2013

haze crisis, and,

2. The Federal Republic of Luka is responsible for the 2013 haze

crisis and therefore must compensate the Republic of Megat

for the damages caused.

Counsel for the Petitioner

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