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TC-02

IN THE INTERNATIONAL COURT OF JUSTICE


THE PEACE PALACE, THE HAGUE,
THE NETHERLANDS

THE 20TH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL


MOOT COURT COMPETITION, 2015-16

2015 General List No. 162

THE DIFFERENCES CONCERNING THE CULTURAL PROPERTY AND


PROTECTION OF ELEPHANTS

FEDERAL STATES OF ALIYA


(APPLICANT)
V.
REPUBLIC OF RINCOSSI
(RESPONDENT)

MEMORIAL FOR THE APPLICANT

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

TABLE OF CONTEN
TABLE OF CONTENTS........................................................................................................II
TABLE OF AUTHORITIES.................................................................................................IV
QUESTIONS PRESENTED...................................................................................................X
STATEMENT OF JURISDICTION....................................................................................XI
STATEMENT OF FACTS...................................................................................................XII
SUMMARY OF ARGUMENTS........................................................................................XIV
ARGUMENTS ADVANCED...................................................................................................1
I.

RINCOSSI

HAS BREACHED AND CONTINUES TO BREACH ITS INTERNATIONAL


OBLIGATION BY FAILING TO ARREST OR PROSECUTE AMBASSADOR CUSI AND 20
MEMBERS OF BARNUM URITOVSKY......................................................................................1

(A)

Omission to arrest or prosecute is attributable to Rincossi......................................1

(B)

Omission to arrest or prosecute constitutes breach of an international obligation.. 2

1.
Rincossis failures to arrest and prosecute contravenes Conventional
International Law...........................................................................................................2
i. Rincossis conduct contravened Article 30 (3) of UNCAC and Article 11(2) of
UNTOC......................................................................................................................2
ii.

Rincossis conduct contravened Article VIII (a) of CITES..............................3

iii.

Rincossis conduct contravened CBD..............................................................4

2.
Rincossis conduct concerning the failure to arrest and prosecute contravenes
Customary International Law.........................................................................................4
i. Rincossi is under obligation to exercise due diligence........................................4
ii.

CIL imposes a duty on the Rincossi to either prosecute or extradite...............5

iii.

Rincossi is under obligation to observe Polluter Pays Principle...................7

iv.

Rincossis conduct constitute Abuse of Right..................................................7

v.
Rincossi is under obligation to comply with the principle of Sustainable
Development..............................................................................................................8
vi. Rincossi is bound to cooperate on protection of Thornon elephants as it is a
common concern of mankind.....................................................................................8
3.
Rincossi is responsible for the internationally wrongful act of Ambassador Cusi
and the 20 members of Barnum Uritovsky, and has not acted to remedy this situation 9
i. Rincossi is responsible for the internationally wrongful act of its Ambassador
Pam C. Cusi................................................................................................................9
ii.
Rincossi is responsible for internationally wrongful act of 20 members of
Barnum Uritovsky....................................................................................................10
iii. Rincossi is liable for the full reparation to Aliya for illegal trade committed
by Ambassador Cusi and the 20 member of Barnum Uritovsky..............................11

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

II. RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY REFUSING TO RETURN THE


IVORY...................................................................................................................................11
(A)

Rincossi has violated its treaty obligations............................................................11

1.

Rincossi has violated CPC.................................................................................12


i. The ivory is a cultural property..........................................................................12
ii.

The property is documented...........................................................................12

iii.

The property is stolen from the institutions mentioned under Art.7...............13

2.

Rincossi has violated CITES..............................................................................13


i. The discretion of confiscation or return under Art. VIII is abused by Rincossi
..............................................................................................................14
ii.

Res 9.10 recommends destroyal only if disposal not practicable...................14

3.

Rincossi has violated UNCAC...........................................................................14

4.

Rincossi has violated UNTOC...........................................................................15

(B) Rincossi has violated customary international law by failing to return back the
property.............................................................................................................................15
1.

There is sufficient state practise.........................................................................15

2.

There is requisite opinio juris.............................................................................16

(C)

Art.35 of the ARSIWA mandates return of the property........................................17

(D)

There is no international or regional custom of destroying the ivory....................17

(E) Rincossi cannot invoke its internal law....................................................................17


PRAYER FOR RELIEF......................................................................................................XV

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

YTABLE OF AUTHORITIES
I.C.J. AND P.C.I.J JUDGMENTS
Temple of Preah Vihear, 1962 I.C.J. Reports 6 36-37............................................................17
Bosnia and Herzegovina v. Serbia and Montenegro, 2007 I.C.J. Reports 43 385..............9, 11
Case Concerning the Barcelona Traction, Light and Power Company Limited, (Belg. v.
Spain), 1970 I.C.J. 3, 6 (Feb. 5).............................................................................................5
Case concerning the Difference Relating to Immunity from Legal Process of a Special
Rapporteur of the Commission on Human Rights, 1999 I.C.J. Reports 87, 62(Advisory
Opinion).............................................................................................................................1, 9
Colombia v. Peru, 1950 I.C.J. 266...........................................................................................17
Factory at Chorzow, Judgment No. 8, 1927, P.C.I.J., Series A, No. 9, p. 21.....................11, 17
Gabkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept. 25).........5, 7, 8, 14
International Commission on the River Oder Case, (Denmark, Czechoslovakia, Fr, Ger, U.K,
Swe v. Pol) PCIJ, Series A, No. 23 (1959).............................................................................5
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J 226 (8th
July)..............................................................................................................................5, 6, 16
Military and Paramilitary activities in and against Nicaragua (Nicaragua v. USA), Merits,
1986 I.C.J. Reports 14,188.................................................................................................16
North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 1969 I.C.J. 3
..............................................................................................................................................17
Pulp Mills in the River Uruguay (Arg. v. Uru.), I.C.J .Reports 55-56 (Apr. 20, 2010)...........10
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012 ICJ
Reports 95............................................................................................................................6
Right of Passage over territory (India v. Portugal) 1957 I.C.J. Report 125............................17
United States v Iran, 1980 ICJ Reports 31-3263,67...............................................................10
Books and Digests
A D Amato, The Concept of Custom in International Law 74-87 (Cornell University Press
1971)......................................................................................................................................5
A.Kiss and D. Shelton, International Environmental Law 251 (1999)......................................9
Annelen Micus, The Inter-American Human Rights System as a Safeguard for Justice in
National Transitions: From Amnesty Laws to Accountability in Argentina, Chile and Peru,
Brill Nijhoff Publishers 42 (2015).........................................................................................3

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Bassiouni, M.C., and Wise, E., Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute
in International Law, 73 (Martinus Nijhoff Publishers, 1995)...............................................6
Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRIT. Y.B.
INTL L. 275,277-78, 300(1965-66).......................................................................................5
Bergkamp, Liability and Environment 165 (Kluwer 2001).....................................................10
Bertrand G. Ramchandran, The Fundamentals of Human Rights Treaty Law, at 124 (Martinus
Nijhoff Publishers 2011)........................................................................................................3
Byers, Abuse of Rights: An Old Principle, A New Age 47 McGill LJ 389 (2002).............7, 14
Cheng, General Principles of Law as Applied by International Courts and Tribunals 121
(Cambridge University Press 1994).......................................................................................7
Cherif Bassiouni, E.M. Wise, Aut Judicare 47 (1995)...............................................................6
Crawford, Revising the Draft Articles on State Responsibility, 10 EUR.J.INT'L.L. 880 (1999)
................................................................................................................................................7
David Freestone and Ellen Hey, The Precautionary Principle and International Law: The
Challenge of Implementation, 10 (Kluwer Law Intl, 1st ed. 1996)......................................5
F.L. Kirgis, Standing to Challenge Human Endeavors that Could Change the Climate, 84
AJIL 525-530 (1990)..............................................................................................................8
James A. R. Nafziger, The New International Legal Framework for the Return, Restitution or
Forfeiture of Cultural Property 15 N.Y.U. J. Int'l L. & Pol. 789 795 (1982-1983)..............16
James Crawford, Brownlies Principles of Public International Law 381 (8 th ed.,Oxford
University Press, 2012)........................................................................................................13
Kelly, Cheating Justice by Cheating Death, 20 Arizona Journal of International and
Comparative Law, 491-532 (2003)........................................................................................6
Kenneth F. McCallion, International Environmental Justice: Rights and Remedies, 26
Hastings Intl. & Comp. L. Rev. 427, 429 - 431 (2003)........................................................4
L. Horn, Globalization, Sustainable Development and the Common Concern of Humankind,
7 Macquarie Law Journal 53-80 (2007).................................................................................8
Lauterpacht, Oppenheims International Law 345 (8th ed, 1955).............................................7
M. Fitzmaurice, Olufemi Elias, Contemporary Issues in the Law of Treaties, 339 (Eleventh
International Publishing 2005)...............................................................................................9
M.C Cordonier Segger and C.G. Weeramantry(eds.), Sustainable Justice: Reconciling
Economic, Social and Environmental Law (Leiden, Matinus Nijhoff Publishers 2005a) 114............................................................................................................................................8
Malcolm N Shaw, International Law 760 (5th ed.,Cambridge University Press 2003).............5
Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human Rights
Violation in International Law, 78 California Law Review 449,471(1990)..........................3

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Patricia Birnie and Alan Boyle, International Law and the Environment 109 (2 nd ed,Oxford
University Press, 2004)..........................................................................................................4
Steven, Genocide and the Duty to Extradite or Prosecute, 39 Virginia Journal of International
Law, 425-466 at 447(1999)....................................................................................................6
Tim Stephens, International Courts and Environment Protection 158 (Cambridge University
Press, 12-Feb-2009).............................................................................................................10
Zarate, The Emergence of a New Dog of War: Private International Security Companies,
International Law, and the New World Disorder, 34 Stanford Journal of International Law
75(1998)...............................................................................................................................10
ARTICLES AND COMMENTARIES
Claire Mitchel, Aut Dedere, Aut Judicare: The Extradite or Prosecute Clause in International
Law 299(Geneva, The Graduate Institute of International and Development Studies, 2009)
................................................................................................................................................6
ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities,
Commentaries, 2 Y.B Intl L Commn 392, Art. 3 (2001)....................................................5
International Law Commission, the Draft code of crimes against the peace and security of
mankind, Art. 9, [1996] 2 Y.B. Intl L. Commn 15..............................................................6
U.N. Intl Law Commntry, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, Commentaries, Report of the International Law Commission to the General
Assembly, 56 U.N. GAOR, 53d Sess., Supp. No. 10, at 31, 80, U.N. Doc. A/56/20 (2001)1,
9, 10, 11, 17
UNCAC, Traveux Preparatoires, Art.57 Interpretative notes at 516, United Nations
Publication 2010..................................................................................................................14
TREATISES AND CONVENTIONS
Basel Convention on the control of Transboundary Movements of Hazardous Wastes and
Their Disposal, 1673 U.N.T.S 126 (Mar. 22, 1989)...............................................................5
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 85, Dec. 10, 1984, 1465 U.N.T.S. 85..........................................................6
Convention for the Protection of Marine Environment of the North East Atlantic, Paris,
entered into force Sept. 22, 1992, 32 I.L.M. 122...................................................................7
Convention on Biological Diversity, June 6 1992, 1760 U.N.T.S. 79...............................2, 4, 8
Convention on International Trade in Endangered Species of Fauna and Flora, Mar.3 1973,
993 U.N.T.S. 243....................................................................................................2, 4, 12, 13
Convention on Long-Range Transboundary Air Pollution, 1302 U.N.T.S 217 (Nov. 13, 1979)
................................................................................................................................................5
Convention on Migratory Species, June 23, 1979, 1651 UNTS 333.........................................2

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property,Nov.14, 1970, 96 Stat.2329,823 U.N.T.S.231
........................................................................................................................................12, 13
Convention on the Prevention and Punishment of the Crime of Genocide, Art.6 Dec. 9, 1948,
102 Stat. 3045, 78 U.N.T.S. 277............................................................................................6
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter
(London), 11 I.L.M. 1294 (1972)...........................................................................................5
Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, Helinski, 31 I.L.M. 1312, Article 2 (5) (March 17, 1992)..........................................5
Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 146,
Aug. 12, 1949, 6 U.S.T. 3516.................................................................................................6
International Convention on Oil Pollution Preparedness, Response and Cooperation, entered
into force May 13, 1995, 1891 U.N.T.S. 51...........................................................................7
U.N. Convention on the Law of the Sea, 1833 U.N.T.S 3, 397, Art. 194 (Dec.10, 1982).........5
UN General Assembly, United Nations Convention against Corruption, Oct.31 2003,
A/58/422.................................................................................................................................2
United Nations Convention against Transnational Organized Crime, Nov.15, 2000, UN Doc.
A/55/383.................................................................................................................................2
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331........2, 3, 11, 12
OTHER JUDGMENTS
Ad hoc Arbitration under the Agreement between Netherlands And Poland On
Encouragement And Reciprocal Protection Of Investment Between Eureko BV And
Poland, Partial award 130-131 (19 August 2005)................................................................9
Caire (France v. Mexico), Mixed Claims Commission, 5 R.Intl.Arb.Awards 516 at p. 531...10
Case of Velasquez-Rodriguez v. Honduras, Inter-Am.Ct.H.R. (Ser. C) No. 4 166-167...........3
Ireland v. United Kingdom, Final Award, 144 (Dispute concerning Access to Information
under Article 9 of the OSPAR Convention, 2 July 2003)......................................................9
Island of Palmas Arbitration,(Neth v. US) 2 R. Intl. Arb. Awards, 829, 831 (1928)................5
Kenneth P. Yeager v. Islamic Republic of Iran, 17 IranU.S. C.T.R 100,101 33 (1987).....1, 9
Lac Lanoux Arbitration (Fr v. Spain)24 I.L.R (1957)................................................................5
Prosecutor v. Duko Tadi Judgement, Case No. IT-941-A, 109 (ICTY, Appeals Chamber,
15 July 1999)....................................................................................................................9, 10
Prosecutor v. Tihomir Blakic (Lasva Valley) Case No. IT-9514-A,39 (ICTY, Appeals
Chamber, 29 July 2004).....................................................................................................1, 6
Royal Holland Lloyd v. United States, 73 Ct. Cl. 722 (1931).................................................10

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Sarma v. Sri Lanka, Communication No. 950/2000: Sri Lanka, ICCPR/C/78/D/950/2000,


para. 9.2 (31 July 2003).......................................................................................................10
Shrimp Turtle case, WTO Appellate Body, 38 ILM 121 129 (1999).......................................8
Trail Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941)....................................5
Velasquez-Rodriguez case, Inter-Am. Ct. H.R. (Ser. C) No. 4 (1988).....................................10
U.N. AND OTHER DOCUMENTS
Fourth Report, UN Doc.A/CN.4/648 7881 (31 May 2011)...................................................6
G.A. Res. 34/186 U.N. Doc. A/RES/34/186(Dec 18, 1979)......................................................5
GA Res 2840 (XXVI), U.N.Doc A/2840 (18th Dec, 1971).......................................................6
GA Res 29/3281(XXIX) U.N. Doc. A/RES/29/3281 (Dec 12, 1974)........................................5
GA Res 3074 (XXVII) U.N.Doc. A/3074 (3 December 1973)..................................................6
GA Res 66/180 U.N. Doc. A/RES/66/180 (Dec 19, 2011)......................................................16
GA Res 68/186 U.N. Doc. A/RES/68/186 (Feb. 11, 2014)......................................................16
GA Res. 69/196 U.N. Doc. A/RES/69/196 (Jan. 26, 2015).....................................................16
Report of the International Law Commission on the Work of its Fifty-Third Session, 154,
U.N. Doc.A/56/10 (2004)....................................................................................................10
Res 2004/34 of ECOSOC (July 21, 2004)...............................................................................16
Res 2010/19 of ECOSOC (July 22 2010), http://www.un.org/en/ecosoc/docs/2010/res
%202010-19.pdf (last visited Nov.5, 2015).........................................................................16
Res 5/8, Implementation of the provisions on international cooperation of the UNTOC
https://www.unodc.org/documents/organizedcrime/COP_5_Resolutions/Resolution_5_8.pdf (last visited Nov 4 2015).........................15
Res. 5/7, Combating Transnational Organised Crime against Cultural Property.
https://www.unodc.org/documents/organizedcrime/COP_5_Resolutions/Resolution_5_7.pdf (last visited Nov 1 2015).........................15
SC Res. 1624, U.N.Doc. S/RES/ 1624 (Sept. 14, 2009)............................................................6
SC Res. 1738, U.N.Doc. S/RES/1738 (Dec. 23, 2006)..............................................................6
SC. Res. 1674, U.N.Doc. S/RES/1674 (April. 28, 2006)...........................................................6
Second Report, UN Doc.A/CN.4/585 5056 (11 June 2007)..................................................6
Third Report, UN Doc.A/CN.4/603 98 (10 June 2008)...........................................................6
UNEP Principles on Conservation and Harmonious Utilisation of Natural Resources Shared
By Two or More States, 17 I.L.M 1094 Principle 3(1978)....................................................5

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

United Nation Handbook on Practice Anti-Corruption Measures for Prosecutors and


Investigators, Vienna, September 2004, pg.23.......................................................................3
United States Import Prohibition of Certain Shrimp and Shrimp Products, WTO Doc
WT/DS58/AB/R, AB-1998-4 at 158 (12 October 1998).......................................................7
OTHER SOURCES
Canada Prime Minister returns 900 year old Khajuraho Temple Sculpture to Modi,
http://indianexpress.com/article/india/india-others/canada-pm-harper-returns-900-yr-oldkhajuraho-temple-sculpture-to-modi (last visited Nov 6 2015)...........................................15
Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 39 I.L.M 1027
(Jan. 29, 2000)........................................................................................................................5
Helsinki Rules on the Uses of the Waters of International Rivers, 52 Intl L. Ass n 477, 484
(1966), Art. X.........................................................................................................................5
Human Rights Committee, General Comment 3, (Thirteenth session (1981)...........................3
Recent
cases
of
Restitution
of
Cultural
Objects
under
CPC,
http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-culturalproperty/recent-restitution-cases-of-cultural-objects-using-the-1970-convention
(last
visited Nov 8 2015)..............................................................................................................16
DECLARATIONS AND CONFERENCES
CITES Resolution Conf. 9.10 (Rev CoP15), Mar.13-25, 2010...............................................14
CITES, Resolution 10.10 (Rev. CoP16).....................................................................................4
Declaration of London Conference on the Illegal Wildlife Trade, (London, February 2014)
2, 4
General conference of UNESCO, 11th Sess, Nov.14-Dec15, Doc. CPG. 61. VI. 11 A at 125 2
(Dec. 14, 1960).....................................................................................................................13
Johannesburg Declaration on Sustainable Development, Report on the World Summit on
Sustainable Development, Annex 5, 11, U.N.Doc. A/CONF.199/20, U.N. Sales No.
E.03.II.A.1, (2002).................................................................................................................8
Resolutions and Decisions Adopted by the United Nations Environment Assembly of the
United Nations Environment Programme at its First Session on 27 June 2014 , Resolution
1/3 para 8................................................................................................................................4
Rio Declaration on Environment and Development U.N. Doc. A/Conf.151/26/Rev.1 (1993)
31 I.L.M 849......................................................................................................................5, 7
The Report of the ILA Committee on Legal Aspects of Sustainable Development, Seventieth
Conference, 2002, p. 308.......................................................................................................8
UNESCO Universal Declaration on Cultural Diversity, Art.7 (2 November 2001)..................8

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

QUESTIONS PRESENTED
I.
WHETHER RINCOSSI HAS BREACHED AND CONTINUES TO BREACH ITS
INTERNATIONAL OBLIGATIONS BY FAILING TO ARREST OR PROSECUTE
AMBASSADOR CUSI AND THE 20 MEMBERS OF THE BARNUM URITOVSKY FOR
TRAFFICKING ILLEGAL THORNON ELEPHANT IVORY.
II.
WHETHER RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY REFUSING TO
RETURN THE CONFISCATED THORNON ELEPHANT IVORY TO ALIYA.

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

STATEMENT OF JURISDICTION
The Federal States of Aliya and the Republic of Rincossi have agreed to submit their
differences concerning Questions relating to Cultural Property and Protection of Elephants to
the International Court of Justice pursuant to paragraph 1 of Article 40 of the Statute of the
International Court of Justice by a joint notification to the Court of their Special Agreement
signed at Libreville, Gabon on 19th June, 2015. The Registrar addressed notification to the
parties on June 25, 2015.

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

STATEMENT OF FACTS
The Federal States of Aliya (hereinafter Aliya) and the Republic of Rincossi (hereinafter
Rincossi) are located on the western coast of the continent of Thorno and the eastern coast of
continent of Rabab respectively (R.5, 1). Aliya is a developing country with a population of
approximately 10,000,000 and 40% of the population lives on less than $1.25 per day (R.5,
3) Rincossi is a rapidly developing country with a population of approximately 600,000,000
people. The GDP of Rincossi is around $4.7 trillion (USD) (R.5, 4).
In 1990, the Aliyan government enacted legislation declaring, that Thornon elephants and
their parts and derivatives are of historical and scientific importance to them (R.6, 15). In
1977, Aliyan Wildlife Protection Act (Wildlife Act) came into force in Aliya, which
criminalizes CITES violations with the punishment of imprisonment for maximum ten years
and a fine. The Wildlife Act also provides for the confiscation of illegally traded wildlife
specimens and provides that such confiscated specimens shall be returned to the country of
origin, if practicable (R.7, 17). Under the Aliyan Ivory Trade Prohibition Act, enacted in
1980, all ivory trade-both international and domestic-is illegal in Aliya. The Aliyan
Government prosecutes many cases involving ivory trafficking but due to Aliyas limited
financial resources, some cases have not been prosecuted (R.7, 19).
In 1977, the Rincossi government enacted Rincossi Flora and Fauna Trafficking Act
(Trafficking Act), under which the international trade in violation of CITES is prohibited
along with the confiscation of illegally traded specimens. However, Rincossi law does not
prohibit domestic trade of illegal ivory, which includes ivory that was obtained before 1977
and ivory that was legally obtained (R.7, 18). In 2010, the Rincossi government amended
its Trafficking Act by increasing the maximum penalty for a CITES violation to eight years in
prison along with the policy to destroy confiscated ivory if practicable (R.7, 21). Since the

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

2010 amendments, the Rincossi government has prosecuted only two cases involving illegal
ivory trade under the Trafficking Act (R.7, 22). The large number of Rincossi workers
brought by the companies owned by the Rincossi government in Aliya helped to stimulate the
market for illegal ivory in both Aliya and Rincossi, and Rincossi has become the primary
destination for illegal ivory from Aliya (R.7, 20).
In July 2014, Rincossi officials discovered that an ambassador from Rincossi named Pam C.
Cusi, who travelled Thorno on a diplomatic mission, had transported 25 kg of illegal ivory
from Aliya back into Rincossi, which was later confiscated (R.8, 23). In December 2014,
Rincossi officials also confiscated all of the illegal elephant ivory (approximated 1500 kg)
from the private group made up of Rincossi citizens called as Barnum Uritovsky (R.8, 26).
However, neither Cusi nor 20 members of Barnum Uritovsky were arrested or prosecuted but
a written warning was issued to them by the government of Rincossi (R.9, 28).
Aliya expressed concern over Rincossis failure to prosecute ambassador Cusi and members
of Barnum Uritovsky and extended its assistance for expeditious proceeding (R.9, 27).
Rincossi declined, stating that it is a purely domestic matter and well within their discretion
to decide not to prosecute Ambassador Cusi, especially given her diplomatic status and very
limited involvement in the operation (R.11, 30).
Aliya formally requested the Rincossi to return all of the confiscated ivory to Aliya in
accordance with Cultural Property Convention (R.12, 31). Rincossi refused to return by
disputing that whether ivory even qualifies as cultural property that would be protected
under the CPC (R.12, 32).
Failing to resolve the matter through negotiations, Aliya and Rincossi submitted the matter to
the International Court of Justice for adjudication (R.13, 35).

WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

SUMMARY OF ARGUMENTS

ISSUE 1
Rincossis failure to arrest and prosecute Ambassador Cusi and the 20 members of the
Barnum Uritovsky constitutes an internationally wrongful act since it is attributed to Rincossi
under International Law and constitutes a breach of the customary as well as treaty
obligations. Rincossi is liable to make full reparation for the alleged internationally wrongful
conduct of Ambassador Cusi and the 20 members of Barnum Uritovsky.

ISSUE 2
Rincossi has violated International Law by refusing to return back the ivory. It has violated
CPC, CITES, UNCAC, UNTOC and Customary International Law, as they impose an
obligation upon Rincossi to return the ivory. Further, Rincossi, being responsible for the acts
of Cusi and 20 members of Barnum Uritovsky, has violated the obligation under ARSIWA to
make reparation in the form of return of ivory.

1
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

ARGUMENTS ADVANCED
I.

RINCOSSI HAS BREACHED AND CONTINUES TO BREACH ITS INTERNATIONAL


OBLIGATION BY FAILING TO ARREST OR PROSECUTE AMBASSADOR CUSI AND

20

MEMBERS OF BARNUM URITOVSKY

It has been universally acknowledged that every internationally wrongful act of a State entails
its International Responsibility.1 It is humbly submitted that Rincossis failure to arrest and
prosecute Ambassador Cusi and the 20 members of the Barnum Uritovsky constitutes an
internationally wrongful act since: [A] It can be attributed to Rincossi under International
Law; and [B] It constitutes a breach of the international obligations of Rincossi.2
(A)

Omission to arrest or prosecute is attributable to Rincossi.

The conduct of any State organ shall be considered an act of that State under International
Law.3 The Government of Rincossi decided to not make any arrests or pursue prosecutions of
1 U.N. Intl Law Commntry, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, Commentaries, Report of the International Law Commission to the General
Assembly, 56 U.N. GAOR, 53d Sess., Supp. No. 10, at 31, 80, U.N. Doc. A/56/20 (2001)
Art.1 [Hereinafter ARSIWA Commentaries].

2 Id. Art. 2; Kenneth P. Yeager v. Islamic Republic of Iran, 17 IranU.S. C.T.R 100,101 33
(1987)[Hereinafter Yeagar v. Iran]

3 ARSIWA Commentaries, supra note 1, Art. 4; Prosecutor v. Tihomir Blakic (Lasva


Valley) Case No. IT-9514-A,39 (ICTY, Appeals Chamber, 29 July 2004);Case concerning
the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the
Commission on Human Rights, 1999 I.C.J. Reports 87, 62(Advisory Opinion).

2
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Ambassador Cusi or members of the Barnum Uritovsky.4 Hence, the omission to arrest or
prosecute them for trafficking illegal Thornon elephant ivory is attributable to Rincossi.
(B)

Omission to arrest or prosecute constitutes breach of an international obligation.

1.

Rincossis failures to arrest and prosecute contravenes Conventional International


Law.

Rincossi must comply with its treaty obligations in good faith, pursuant to the principle of
Pacta sunt servanda.5 Aliya and Rincossi are required, as States-parties to CITES6, UNCAC7,
UNTOC8, CBD9 and CMS10, to prevent illegal trade and promote the conservation of natural
resources.11 Rincossi failed to perform its duty by failing to arrest and prosecute Ambassador
Cusi and the 20 members of Barnum Uritovsky is not consistent with its treaty obligations.
4 R.9 28.

5 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 Art. 26
[VCLT].

6 Convention on International Trade in Endangered Species of Fauna and Flora, Mar.3 1973,
993 U.N.T.S. 243[CITES].

7 UN General Assembly, United Nations Convention against Corruption, Oct.31 2003,


A/58/422 [UNCAC].

8 United Nations Convention against Transnational Organized Crime, Nov.15, 2000, UN


Doc. A/55/383 at 25 [UNTOC].

9 Convention on Biological Diversity, June 6 1992, 1760 U.N.T.S. 79 [CBD].

10 Convention on Migratory Species, June 23, 1979, 1651 UNTS 333[CMS].

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i.

Rincossis conduct contravened Article 30 (3) of UNCAC and Article 11(2) of


UNTOC.

UNCAC and UNTOC mandates contracting states to exercise its discretionary legal powers
under its domestic law for maximizing the effectiveness of law enforcement measures in
respect of prosecution of persons for offences covered under these conventions and with due
regard the need to deter the commission of such offences.12 The duty to ensure imposes an
affirmative duty on state, and calls for specific activities by state to enable individuals to
enjoy the recognized rights.13 The affirmative obligation is not fulfilled by the mere
theoretical existence of a legal system to deal with complaints. 14 So long as the government
exhibits a lack of diligence in preventing or responding to violation, the government has
violated its affirmative duty.15
11 R.5-6 7-12.

12 UNCAC, Art. 30(3) & UNTOC, Art. 11(2); Declaration of London Conference on the
Illegal Wildlife Trade, (London, February 2014) [London Conference].

13 Human Rights Committee, General Comment 3, (Thirteenth session (1981); Bertrand G.


Ramchandran, The Fundamentals of Human Rights Treaty Law, at 124 (Martinus Nijhoff
Publishers 2011).

14 Case of Velasquez-Rodriguez v. Honduras, Inter-Am.Ct.H.R. (Ser. C) No. 4 166-167


(Inter-American Court of Human Rights 1988)

15 Naomi Roht-Arriaza, State Responsibility to Investigate and Prosecute Grave Human


Rights Violation in International Law, 78 California Law Review 449,471(1990); Annelen
Micus, The Inter-American Human Rights System as a Safeguard for Justice in National
Transitions: From Amnesty Laws to Accountability in Argentina, Chile and Peru, Brill

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Corruption and Transnational Organized Crime is not defined in the UNCAC and UNTOC
respectively. Interpretation of these terms shall be in good faith, in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its

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object and purpose.16 Corruption is defined as "the misuse of a public or private position for

6
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direct or indirect personal gain"17 and purpose of UNTOC is to promote cooperation to


prevent and combat transnational organized crime more effectively. Thus, Rincossi failed in
its affirmative duty to ensure the compliance of UNCAC and UNTOC by refusing to
prosecute and arrest.
ii.

Rincossis conduct contravened Article VIII (a) of CITES.

Rincossi has blatantly disregarded the Article VIII(a) and Resolution 10.10 of CITES which
makes the obligation for contracting parties to take appropriate measures in form of

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penalizing trade, or possession of specimens included in appendices of CITES in order to

8
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enforce the provisions of the CITES and to prohibit trade in specimens in violation thereof.18
iii.

Rincossis conduct contravened CBD.

CBD requires each contracting party shall, as far as possible and as appropriate, cooperate
with other contracting parties, in respect of areas beyond national jurisdiction and on other

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matters of mutual interest, for the conservation and sustainable use of biological diversity. 19 It

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also mandates the contracting party to promote the recovery of threatened species.20

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Rincossi refusal to accept the offer of Aliya for continued and dedicated assistance to proceed
expeditiously with the arrest and prosecution as well as failing to implement the Rincossi

12
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Flora and Fauna Trafficking Act21 contravened CBD.


2.

Rincossis conduct concerning the failure to arrest and prosecute contravenes


Customary International Law.

Rincossi is under obligation to exercise due diligence.

In pursuant to the principle of sic utero tuo, ut alienum non laedas or principle of good
neighbourliness it is a well-recognized custom of International Environmental Law that
obliges states to ensure that activities within their jurisdiction and respect the environment of
other States or of areas beyond national control is part of the corpus of International

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Environment Law.22 The no-harm rule required States to exercise due diligence concerning
activities within their jurisdiction or control where there is a likelihood that those activities

14
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will cause reasonably foreseeable and significant damage to areas beyond their national

15
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control.23

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Further, Aliya seeks to submit that the Precautionary principle stipulates that, where there
are threats of serious or irreversible damage, lack of full scientific certainty shall not be used

17
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as a reason for postponing cost-effective measures to prevent environmental degradation.24


Thus, Rincossi is under obligation to exercise due diligence by prosecuting and arresting
Ambassador Cusi and the 20 members of Barnum Uritovsky.

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

iv.

CIL imposes a duty on the Rincossi to either prosecute or extradite.

19
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Generalizable treaty provisions generate customary rules binding on all states including non-

20
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parties25 and are often cited as evidence of custom even though they may not be directly

21
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binding on the states involved in the particular controversy.26 In the case of aut dedere aut
judicare there exist a number of multilateral treaties (crucially the Geneva Conventions of

22
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

194927) providing for the said obligation as accruing to the contracting parties. 28 Additionally

23
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the obligation has seen recognition in General Assembly resolutions 29 , Security Council

24
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resolutions30, the ILC31, judicial decisions32 and the juristic works33. ICJ has laid down that
the choice between extradition or submission for prosecution, pursuant to the Convention,
does not mean that the two alternatives are to be given the same weight. Extradition is an
option offered to the State by the Convention, whereas prosecution is an international
obligation under the Convention, the violation of which is a wrongful act engaging the

25
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responsibility of the State.34 Aliya is also not a persistent objector of aut dedere aut judicare
as it acted in furtherance of customary rule by ratifying UNCAC and UNTAC without
reservations which envisaged the given principle.
It is therefore submitted, that Rincossi must prosecute and arrest Ambassador Cusi and the 20
members of Barnum Uritovsky by submitting them to the domestic jurisdiction of Rincossi
courts.
v.

Rincossi is under obligation to observe Polluter Pays Principle.

Rincossi and Aliya are parties to plethora of international instruments demonstrating the
recognition by both parties, as well as the international community, of the principle that the

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costs of pollution should be borne by the polluter.35 Polluter Pays Principle affirmatively

27
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

states, That the polluter should, in principle, bear the cost of pollution.36 Therefore, it is
submitted, that Rincossis failure to prosecute these criminals demonstrates to other wildlife

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traffickers that they will not have to pay for their crime 37, which is contrary to the polluter
pays principle.

29
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vi.

Rincossis conduct constitute Abuse of Right.

30
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The doctrine of abuse of rights (abus de droit) is a general principle of law38 and is typically

31
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applied in cases of shared resources. 39 An abuse of rights occurs, inter alia, if one State
exercises its rights in a way that impairs the capacity of a second State to exercise its rights,
and the disadvantages caused to the second State exceed the advantages received by the first

32
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State.40 In the instant case, Rincossi by virtue of its right of prosecutorial discretion failed to
enforce its domestic legislation to the detriment of the Thornon elephant and citizens of Aliya
which ramifies into abuse of right owed to Aliya by Rincossi.

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

vii.

Rincossi is under obligation to comply with the principle of Sustainable Development.

34
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

The concept of sustainable development has emerged as the special responsibility of states in

35
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the process of environmental and cultural protection.41 Sustainable development notes that

36
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

environment must be protected42, with the preservation, enhancement and handing over of

37
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cultural heritage to future generations in all its forms.43

38
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Since, Thornon elephants are an integral part of the culture and history of Aliya 44, they need
to be protected for current and future generations.

39
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

viii.

Rincossi is bound to cooperate on protection of Thornon elephants as it is a common


concern of mankind.

40
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Conservation of biological diversity is a common concern of mankind.45 Beyond international


cooperation, common concern has been regarded as a foundation for action erga omnes and

41
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

standing of states in environmental affairs affecting all states.46 The concept of common
concern establish the general basis for the international community to act makes it clear that

42
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

the subject-matter is one of the international concern. 47 Therefore Rincossi is required to cooperate with Aliya to protect Thornon elephants from future harm.

43
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

3.

Rincossi is responsible for the internationally wrongful act of Ambassador Cusi and
the 20 members of Barnum Uritovsky, and has not acted to remedy this situation

44
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

In order to attribute an act to the State, it is necessary to identify with reasonable certainty the

45
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

actors and their association with the State.48

46
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Rincossi is responsible for the internationally wrongful act of its Ambassador Pam C.
Cusi.

a. Conduct of Cusi is attributable to Rincossi as her position constitutes a state organ

47
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

The conduct of any State organ shall be considered an act of that State under International

48
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Law.49 A State incurs responsibility for acts in breach of international obligations committed
by individuals who enjoy the status of organs under the national law of that State or who at
least belong to public entities empowered within the domestic legal system of the State to

49
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

exercise certain elements of governmental authority.50 Thus, Ambassador Cusi is to be


construed as an organ which makes Rincossi responsible for her internationally wrongful act.
b. Abuse or Excess of authority by Ambassador Cusi does not preclude the responsibility
of Rincossi
The conduct of a State organ or an entity empowered to exercise elements of the
governmental authority, acting in its official capacity, is attributable to the State even if the

50
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

organ or entity acted in excess of authority or contrary to instructions. 51 In the instant case,
abuse or excess of authority by the Ambassador Cusi which she acted under her official
capacity does not preclude Rincossis responsibility for the internationally wrongful act.

51
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

ix.

Rincossi is responsible for internationally wrongful act of 20 members of Barnum


Uritovsky

52
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

In complying with a States duty to prevent transboundary harm, the standard of conduct

53
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

required to be observed is due diligence.52 It only requires reasonable efforts by a State to

54
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

take appropriate measures in a timely fashion. 53 The International Law Commission


(I.L.C.) explains that where the activities are conducted by private operators, the States

55
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

obligation to exercise due diligence is limited to establishing a regulatory framework and

56
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

ensuring that private operators comply with State regulations.54

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

In the present case, Rincossi has failed to discharge its duty to prevent the illegal activities of

58
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Barnum Uritovsky which entails the responsibility of Rincossi.55


x.

Rincossi is liable for the full reparation to Aliya for illegal trade committed by
Ambassador Cusi and the 20 member of Barnum Uritovsky

It is a principle of international law that the breach of an engagement involves an obligation


to make full reparation in an adequate form. The responsible state must endeavour to wipe

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

out all the consequences of the illegal act and re-establish the situation which would, in all

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probability, have existed if that act had not been committed56


Rincossi cannot justify its omission to arrest or prosecute Cusi and 20 members of Barnum
Uritovsky, merely on grounds of legal or practical difficulties, even though the responsible

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State may have to make special efforts to overcome these. 57 Hence, Rincossis failure to
provide remedy in form of arrest or prosecute is a breach of international obligation.

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II.

RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY REFUSING TO RETURN THE


IVORY.

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Rincossi has refused to return the ivory to Aliya citing their internal law as an excuse,

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preferring destruction over returning the ivory58. This refusal amounts to violation of its treaty
obligations and the customary international law.

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Rincossi has violated its treaty obligations.

66
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

A treaty creates binding legal obligations between states that are parties to it. 59 Rincossi must
comply with its treaty obligations in good faith, pursuant to the principle of Pacta sunt

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

servanda60.Rincossi failed to observe this duty by refusing to return the ivory.

68
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Rincossi has violated CPC.

69
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

CPC61 imposes an obligation on every state party to take appropriate steps to return the
cultural property to the state of origin on request. Rincossi has failed to respect this obligation

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by refusing to return62 the property even upon the valid request of Aliyan government 63.
Further, the prerequisites to invoke this provision are being satisfied.

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The ivory is a cultural property.

72
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Article 1 of CPC provides for a list of categories which could be a cultural property and

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ivory falls under the first category as it is a rare specimen 64 of fauna, designated by Aliya

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government65 as historically and scientifically important.


Alternatively, the ivory qualifies to be cultural property under the 2nd category as it is a
property of historic and scientific importance to Aliya and under 6 th category as an object of
ethnological interest to the people of Aliya.

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

xi.

The property is documented.

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WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Art. 7 state that there must be a documentation of the property in question. All the details of
the elephants from which the ivory has been derived have been listed in the inventory of the

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national park66.

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xii.

The property is stolen from the institutions mentioned under Art.7.

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Art.7 states that the property must be stolen from the museum, or a religious or a secular
public monument or similar institution. The Thornon National park from which the ivory is

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stolen falls within the definition of museum67.

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Alternatively, it qualifies to be a similar institution under art.7 by applying the principle of

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ejusdem generis, which is a well-recognised principle of interpretation. 68 The object of all

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these institutions is to protect the property as envisaged in CPC 69 and hence the National Park
qualifies to be a similar institution.
4.

Rincossi has violated CITES.

CITES is an international agreement, which prohibits the trade of endangered and threatened
species, and trade in specimen of those species listed in Appendix-I. Compliance with CITES
requires that parties to the convention take appropriate measures to confiscate or return the

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illegally traded specimens70. The ivory in this case is a specimen of the endangered species

85
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Loxodanta thornona, listed in Appendix- I71 and is under discretion of Rincossi to either
confiscate or return back.

86
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The discretion of confiscation or return under Art. VIII is abused by Rincossi.

87
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The right to discretion provided under a convention should not be abused. A state shouldnt

88
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abuse its rights, is a general principle of law,72 which says that the States should not exercise
its rights in a way that it impairs the rights of other States. In the instant case, Rincossi has

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refused to return the ivory73 in detriment to the cultural rights of people in Aliya, thereby
abusing its right of discretion.

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xiii.

Res 9.10 recommends destroyal only if disposal not practicable.

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The confiscated specimen can only be destroyed if the disposal of it for bona fide scientific

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and educational purposes is not practicable.74Aliya has made a request to Rincossi for return

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of the ivory for educational purposes75 but Rincossi has refused to return and opted for its
destruction.
The refusal to return and opting for destruction, hence, is a violation of CITES by Rincossi.
5.

Rincossi has violated UNCAC.

Article 57(3)(c) of UNCAC mandates the state parties, in accordance with their domestic law,
to give priority consideration to return the confiscated property to the requesting state, when
such property is confiscated in pursuance to Art.31.4

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The phrase in accordance with the domestic law indicates that the state parties to implement

95
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legislation in their states to give effect to its obligations under the convention76.

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Rincossi, being confiscated ivory in pursuance to art.31 of UNCAC 77, its refusal to return the
property is a violation of UNCAC.
6.

Rincossi has violated UNTOC.

Article 14 of UNTOC states that whenever a property is confiscated in pursuance to Art.13,


the state parties shall give priority consideration to return back the property upon request to
the extent permitted by their domestic law. Further, UNTOC Resolutions urge the States

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parties78 to give top priority in returning the confiscated property if requested by the owner

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states79 .

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Rincossi has confiscated the property under Art.13 of UNTOC80and has refused to return back
the property upon the request of Aliya thereby violating art.14 of UNTOC.
(C)

Rincossi has violated customary international law by failing to return back the
property.

The return of the cultural property has attained the status of custom in view of extensive state
practise and opinio juris.

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There is sufficient state practise.

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Most of the countries in the world return cultural property to the State of origin. Canada has

102
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returned a 900 year old sculpture to India in July, 2015. 81 Germany has returned a Golden
brooch stolen from a Turkish museum in 2012 by virtue of it being a property of cultural

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importance to Turks.82 Similarly, the government of Canada returned to the Republic of

104
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Bulgaria 21000 coins and pieces of jewellery.83 Even the courts in Toronto, Italy ordered

105
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return of certain art objects to Ecuador as they constituted cultural property. 84 There are
various other similar cases in which Egypt, Italy, India, and Libya have returned cultural
property to their country of origin, which shows sufficient practise of states in returning the
cultural property.

106
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

7.

There is requisite opinio juris.

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Sufficient opinio juris can be gathered from the resolutions of General Assembly.85 General
assembly in various cases has passed resolutions urging the States to return the cultural

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property to the State of origin86. Economic and Social council of UN has also passed

109
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resolutions stating that the States shall prevent the crime of trafficking of cultural property

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and further restitute or return back the property to the States which it belongs to.87
As State practise and opino juris are sufficient, returning back the cultural property has
attained the status of customary International law.

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(D)

Art.35 of the ARSIWA mandates return of the property.

112
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It is a customary rule that the state which is responsible for the internationally wrongful acts

113
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is under an obligation to make reparations in the form of restitution to the suffering state 88.
Rincossi is responsible for the acts of the Barnum Uritovsky and Cusi, and hence it is under
an obligation to make reparations in the form of return of confiscated ivory but it has failed to
comply with this obligation.

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(E)

There is no international or regional custom of destroying the ivory.

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Art.38 (1) (b) of statute of ICJ deals with only international customs. Regional custom cannot

116
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be a valid custom unless it is followed by either parties and the parties are in the same

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region.89

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The destruction of ivory is followed only in the continent of Rabab 90 which confines it to be a
local or regional custom. Aliya is not a part of the Rabab region and does not follow the
destruction policy. Moreover, there is no opinio juris for this practise of destruction
prevailing in Rabab continent. Hence, Rincossis claim of destruction of ivory being its
custom cannot be a valid claim.
(F)

Rincossi cannot invoke its internal law.

Article 27 of VCLT and Article 5 ARSIWA clearly lays down the principle that the internal
law cannot be taken as excuse for violation of international law obligation. Rincossi claim
that it will not return back the property citing the provisions in their domestic law to destroy
cannot be a valid justification for the failure to observe its International obligations.

15
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PRAYER FOR RELIEF


For the foregoing reasons, The Federal States of Aliya, Applicant respectfully requests the
Court to adjudge and declare that:
1. The Republic of Rincossi is obliged to arrest and prosecute Ambassador Cusi and the 20
members of Barnum Uritovsky for the acts including illegal ivory trade, corruption and transNijhoff Publishers 42 (2015)

16 VCLT, supra note 5, art.31.

17 United Nation Handbook on Practice Anti-Corruption Measures for Prosecutors and


Investigators, Vienna, September 2004, pg.23.

18 CITES, supra note 6, Article VIII(a) and CITES, Resolution 10.10 (Rev. CoP16); London
Conference, supra note 12; Resolutions and Decisions Adopted by the United Nations
Environment Assembly of the United Nations Environment Programme at its First Session on
27 June 2014 , Resolution 1/3 para 8.

19 CBD, supra note 9 Article V

20 CBD, supra note 9 Article VIII(f)

21 R.9 28

22 Kenneth F. McCallion, International Environmental Justice: Rights and Remedies, 26


Hastings Intl. & Comp. L. Rev. 427, 429 - 431 (2003); Patricia Birnie and Alan Boyle,
International Law and the Environment 109 (2 ed,Oxford University Press, 2004); Trail
nd

Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941); International Commission

16
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national organized crime which are alleged against them as perpetrator, co-perpetrator or
accomplice and,
2. Rincossi is under an obligation to return the confiscated Thornon elephant ivory to Aliya.

on the River Oder Case, (Denmark, Czechoslovakia, Fr, Ger, U.K, Swe v. Pol) PCIJ, Series
A, No. 23 (1959); Island of Palmas Arbitration,(Neth v. US) 2 R. Intl. Arb. Awards, 829, 831
(1928); Malcolm N Shaw, International Law 760 (5 th ed.,Cambridge University Press
2003);Lac Lanoux Arbitration (Fr v. Spain)24 I.L.R (1957); Case Concerning the Barcelona
Traction, Light and Power Company Limited, (Belg. v. Spain), 1970 I.C.J. 3, 6 (Feb. 5);
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J 226 (8 th
July); Gabkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept. 25).

23 ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities,
Commentaries, 2 Y.B Intl L Commn 392, Art. 3 (2001); Rio Declaration on Environment
and Development U.N. Doc. A/Conf.151/26/Rev.1 (1993) 31 I.L.M 849, Art. 2; Helsinki
Rules on the Uses of the Waters of International Rivers, 52 Intl L. Ass n 477, 484 (1966),
Art. X; U.N. Convention on the Law of the Sea, 1833 U.N.T.S 3, 397, Art. 194 (Dec.10,
1982); UNEP Principles on Conservation and Harmonious Utilisation of Natural Resources
Shared By Two or More States, 17 I.L.M 1094 Principle 3(1978); Convention on the
Prevention of Marine Pollution by Dumping of Wastes and other Matter (London), 11 I.L.M.
1294 (1972); Convention on Long-Range Transboundary Air Pollution, 1302 U.N.T.S 217
(Nov. 13, 1979); Basel Convention on the control of Transboundary Movements of
Hazardous Wastes and Their Disposal, 1673 U.N.T.S 126 (Mar. 22, 1989); GA Res
29/3281(XXIX) U.N. Doc. A/RES/29/3281 (Dec 12, 1974); G.A. Res. 34/186 U.N. Doc.

17
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

Respectfully Submitted on behalf of the Applicant.


Agents for Applicant.

A/RES/34/186(Dec 18, 1979).

24 Rio Declaration, id., Principle 15; Convention on the Protection and Use of Transboundary
Watercourses and International Lakes, Helinski, 31 I.L.M. 1312, Article 2 (5) (March 17,
1992); Cartagena Protocol on Biosafety to the Convention on Biological Diversity, 39 I.L.M
1027 (Jan. 29, 2000); See also David Freestone and Ellen Hey, The Precautionary Principle
and International Law: The Challenge of Implementation, 10 (Kluwer Law Intl, 1 st ed.
1996).

25 A D Amato, The Concept of Custom in International Law 74-87 (Cornell University Press
1971); See also, Baxter, Multilateral Treaties as Evidence of Customary International Law, 41
BRIT. Y.B. INTL L. 275,277-78, 300(1965-66).

26Cherif Bassiouni, E.M. Wise, Aut Judicare 47 (1995).

27Advisory Opinion on Threat or Use of Nuclear Weapons, supra note 22, at 257, 79.

28 Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 146,
Aug. 12, 1949, 6 U.S.T. 3516; Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, art. 85, Dec. 10, 1984, 1465 U.N.T.S. 85; Convention
on the Prevention and Punishment of the Crime of Genocide, Art.6 Dec. 9, 1948, 102 Stat.

18
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

3045, 78 U.N.T.S. 277. See also, Claire Mitchel, Aut Dedere, Aut Judicare: The Extradite or
Prosecute Clause in International Law 299(Geneva, The Graduate Institute of International
and Development Studies, 2009).

29 GA Res 2840 (XXVI), U.N.Doc A/2840 (18th Dec, 1971); GA Res 3074 (XXVII)
U.N.Doc. A/3074 (3 December 1973).

30 SC Res. 1738, U.N.Doc. S/RES/1738 (Dec. 23, 2006); SC. Res. 1674, U.N.Doc.
S/RES/1674 (April. 28, 2006); SC Res. 1624, U.N.Doc. S/RES/ 1624 (Sept. 14, 2009).

31 International Law Commission, the Draft code of crimes against the peace and security of
mankind, Art. 9, [1996] 2 Y.B. Intl L. Commn 15; Second Report, UN Doc.A/CN.4/585
5056 (11 June 2007); Third Report, UN Doc.A/CN.4/603 98 (10 June 2008); Fourth
Report, UN Doc.A/CN.4/648 7881 (31 May 2011).

32 Lasva Valley, supra note 3.

33 Bassiouni, M.C., and Wise, E., Aut Dedere Aut Judicare: The Duty to Extradite or
Prosecute in International Law, 73 (Martinus Nijhoff Publishers, 1995); Kelly, Cheating
Justice by Cheating Death, 20 Arizona Journal of International and Comparative Law, 491532 (2003); Steven, Genocide and the Duty to Extradite or Prosecute, 39 Virginia Journal of

19
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

International Law, 425-466 at 447(1999).

34 Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 2012


ICJ Reports 95.

35 R.6 14.

36 International Convention on Oil Pollution Preparedness, Response and Cooperation,


entered into force May 13, 1995, 1891 U.N.T.S. 51; Convention for the Protection of Marine
Environment of the North East Atlantic, Paris, entered into force Sept. 22, 1992, 32 I.L.M.
122 ; Rio Declaration, supra note 23, Principle16; Crawford, Revising the Draft Articles on
State Responsibility, 10 EUR.J.INT'L.L. 880 (1999).

37 R10 29.

38 Byers, Abuse of Rights: An Old Principle, A New Age 47 McGill LJ 389 (2002); Cheng,
General Principles of Law as Applied by International Courts and Tribunals 121 (Cambridge
University Press 1994); United States Import Prohibition of Certain Shrimp and Shrimp
Products, WTO Doc WT/DS58/AB/R, AB-1998-4 at 158 (12 October 1998); Gabkovo Case
, supra note 22,at 95;

39 Byers, id., at 424.

20
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

40 Lauterpacht, Oppenheims International Law 345 (8th ed, 1955); Byers, id.406.

41 M.C Cordonier Segger and C.G. Weeramantry(eds.), Sustainable Justice: Reconciling


Economic, Social and Environmental Law (Leiden, Matinus Nijhoff Publishers 2005a) 1-14;
The Report of the ILA Committee on Legal Aspects of Sustainable Development, Seventieth
Conference, 2002, p. 308.

42 Gabkovo Case, supra note 22 at 1; Shrimp Turtle case, WTO Appellate Body, 38 ILM
121 129 (1999); Johannesburg Declaration on Sustainable Development, Report on the
World Summit on Sustainable Development, Annex 5, 11, U.N.Doc. A/CONF.199/20, U.N.
Sales No. E.03.II.A.1, (2002).

43 UNESCO Universal Declaration on Cultural Diversity, Art.7 (2 November 2001).

44 R6 15.

45 CBD, supra note 9, Preamble.

46 F.L. Kirgis, Standing to Challenge Human Endeavors that Could Change the Climate, 84
AJIL 525-530 (1990); L. Horn, Globalization, Sustainable Development and the Common
Concern of Humankind, 7 Macquarie Law Journal 53-80 (2007).

21
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

47 A.Kiss and D. Shelton, International Environmental Law 251 (1999); M.


Fitzmaurice, Olufemi Elias, Contemporary Issues in the Law of Treaties, 339 (Eleventh
International Publishing 2005).

48 Yeager v. Iran, supra note 2, at 92.

49Immunity Case, supra note 3; ARSIWA Commentaries, supra note 1, Art. 4(1).

50 Prosecutor v. Duko Tadi Judgement, Case No. IT-941-A, 109 (ICTY, Appeals
Chamber, 15 July 1999); Ireland v. United Kingdom, Final Award, 144 (Dispute concerning
Access to Information under Article 9 of the OSPAR Convention, 2 July 2003); Ad hoc
Arbitration under the Agreement between Netherlands And Poland On Encouragement And
Reciprocal Protection Of Investment Between Eureko BV And Poland, Partial award 130131 (19 August 2005); Bosnia and Herzegovina v. Serbia and Montenegro, 2007 I.C.J.
Reports 43 385.

51 ARSIWA Commentaries, supra note 1, Art. 7; Duko Tadi, id., 121; Sarma v. Sri Lanka,
Communication No. 950/2000: Sri Lanka, ICCPR/C/78/D/950/2000, para. 9.2 (31 July
2003); Caire (France v. Mexico), Mixed Claims Commission, 5 R.Intl.Arb.Awards 516 at p.
531; Royal Holland Lloyd v. United States, 73 Ct. Cl. 722 (1931).

22
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

52 Pulp Mills in the River Uruguay (Arg. v. Uru.), I.C.J .Reports 55-56 (Apr. 20, 2010);
Report of the International Law Commission on the Work of its Fifty-Third Session, 154,
U.N. Doc.A/56/10 (2004).

53Tim Stephens, International Courts and Environment Protection 158 (Cambridge


University Press, 12-Feb-2009); Bergkamp, Liability and Environment 165 (Kluwer 2001).

54 ARSIWA Commentaries, supra note 1, at 156; Velasquez-Rodriguez case, Inter-Am. Ct.


H.R. (Ser. C) No. 4 (1988); United States v Iran, 1980 ICJ Reports 31-3263,67; Zarate, The
Emergence of a New Dog of War: Private International Security Companies, International
Law, and the New World Disorder, 34 Stanford Journal of International Law 75(1998).

55R7, 20

56ARSIWA Commentaries, supra note 1, at 91; Factory at Chorzow, Judgment No. 8, 1927,
P.C.I.J., Series A, No. 9, p. 21; Bosnia and Herzegovina, supra note 50 460.

57 ARSIWA Commentaries, supra note 9, at pg.98

58 R12 32, 34.

59 VCLT, supra note 5, art.2.

23
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

60 Id., Art.26.

61 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property,Nov.14, 1970, 96 Stat.2329,823 U.N.T.S.231,
Art.7 (b) [Hereinafter CPC].

62 R12 32.

63 R12 31.

64 CITES, Art. II.

65 R6 15.

66 R6 16.

67 General conference of UNESCO, 11th Sess, Nov.14-Dec15, Doc. CPG. 61. VI. 11 A at 125
2 (Dec. 14, 1960) (UNESCO Recommendation concerning the most effective means of
Rendering Museums Accessible to Everyone).

68 James Crawford, Brownlies Principles of Public International Law 381 (8th ed.,Oxford
University Press, 2012).

24
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

69 CPC, Preamble, Recital 4.

70 CITES, Art. VIII.

71 R5 8.

72 Byers, supra note 38; Gabkovo Case, supra note 22, at 95.

73 R12 32.

74 CITES Resolution Conf. 9.10 (Rev CoP15), Mar.13-25, 2010.

75 Clarification 14.

76 UNCAC, Traveux Preparatoires, Art.57 Interpretative notes at 516, United Nations


Publication 2010.

77 R8 26.

78 Res. 5/7, Combating Transnational Organised Crime against Cultural Property.


https://www.unodc.org/documents/organized-crime/COP_5_Resolutions/Resolution_5_7.pdf
(last visited Nov 1 2015)

25
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

79 Res 5/8, Implementation of the provisions on international cooperation of the UNTOC


https://www.unodc.org/documents/organized-crime/COP_5_Resolutions/Resolution_5_8.pdf
(last visited Nov 4 2015).

80 R8 26.

81Canada Prime Minister returns 900 year old Khajuraho Temple Sculpture to Modi,
http://indianexpress.com/article/india/india-others/canada-pm-harper-returns-900-yr-oldkhajuraho-temple-sculpture-to-modi (last visited Nov 6 2015).

82Recent

cases

of

Restitution

of

Cultural

Objects

under

CPC,

http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/recentrestitution-cases-of-cultural-objects-using-the-1970-convention (last visited Nov 8 2015).

83 Id.

84 James A. R. Nafziger, The New International Legal Framework for the Return, Restitution
or Forfeiture of Cultural Property 15 N.Y.U. J. Int'l L. & Pol. 789 795 (1982-1983).

85 Military and Paramilitary activities in and against Nicaragua (Nicaragua v. USA), Merits,
1986 I.C.J. Reports 14, 188; Advisory Opinion on Threat or Use of Nuclear Weapons, supra
note 22, at 226 70.

26
WRITTEN SUBMISSIONS OF BEHALF OF APPLICANT

86 GA Res 66/180 U.N. Doc. A/RES/66/180 (Dec 19, 2011), GA Res 68/186 U.N. Doc.
A/RES/68/186 (Feb. 11, 2014), GA Res. 69/196 U.N. Doc. A/RES/69/196 (Jan. 26, 2015).

87 Res 2010/19 of ECOSOC (July 22 2010), http://www.un.org/en/ecosoc/docs/2010/res


%202010-19.pdf (last visited Nov.5, 2015), Res 2004/34 of ECOSOC (July 21, 2004).

88 ARSIWA Commentaries, supra note 1, Art.35; Chorzow factory case; supra note 56;
Temple of Preah Vihear, 1962 I.C.J. Reports 6 36-37.

89 North Sea Continental Shelf (Germany v. Denmark; Germany v. Netherlands), 1969 I.C.J.
3; Colombia v. Peru, 1950 I.C.J. 266; Right of Passage over territory (India v. Portugal) 1957
I.C.J. Report 125.

90 R7 22.