I.

RESPONDENTS EXTRACTION OF WATER FROM THE AQUIFER

VIOLATES INTERNATIONAL OBLIGATIONS UNDERTAKEN BY RAHAD
AND CONSTITUTES AN INEQUITABLE USE OF A SHARED RESOURCE

A. RESPONDENT VIOLATED ITS MARCH 22, 1993 COMMITMENT TO

MAKE EVERY REASONABLE EFFORT TO PRESERVE AND PROTECT
THE SHARED FRESH WATER RESOURCES OF THE NOMAD COAST
AND TO ENSURE THEIR EQUITABLE USE.

Declarations made by way of unilateral acts, concerning legal or factual situations, may

have the effect of creating legal obligations1. Binding unilateral declarations make the declarant

state legally required to follow a course of conduct consistent with the declaration because one of

the basic principles governing the creation and performance of legal obligations, whatever their

source, is the principle of good faith. Thus interested States may take cognizance of unilateral

declarations and place confidence in them, and are entitled to require that the obligation thus

created be respected2.

On the first UN World Water Day, 22 March 1993, Queen Teresa, through the Rahadi

Minister of Water and Agriculture promised, that Rahad would ensure the equitable use of the

shared fresh water resources of the Nomad Coast3.

B. RESPONDENT VIOLATED THE PRINCIPLE OF EQUITABLE AND

REASONABLE UTILIZATION OF A SHARED RESOURCE.

1. The Greater Inata Aquifer is a shared resource and Respondents

exclusive utilization of all its waters infringe on Applicants right to an
equitable and reasonable share in the resources.

The principle that states have a common legal right to an equitable and reasonable share

of natural resources is customary law4. In the Danube Dam Case, a project which allowed

1
Nuclear Tests Case (Australia v. France), Judgment, ICJ Reports 1974, p 472, para 46
2
Supra, p 473, para 49
3
Compromis, para 16
Hungary to utilize eighty-ninety percent of the waters of the Danube for its exclusive benefit was

held to be an infringement on Hungarys basic right to an equitable and reasonable sharing of

the resources of an international watercourse5. Equitable and reasonable utilization of aquifers

should result in equitable allocation of benefits among the States sharing the aquifer 6. Equitable

is not necessarily equal7, but utilization should not deprive other States of their right to equitable

utilization8. Reasonable utilization means to maximize the long-term benefits from the use of

such waters9.

Respondent extracts 1.2 cubic kilometers per year since 200610, Applicant, who relied

only on water seepage11 from the Aquifer, was totally deprived of its right to utilize the shared

underground resource12. Respondents extraction is also not reasonable as it will totally deplete

the Greater Inata Aquifer13 and Queen Teresa herself admitted that the extraction was only a

short-term solution14 .

C. RESPONDENT VIOLATED THE PRINCIPLE OF PREVENTION.

4
Case Relating to the Diversion of the Water From the Meuse, PCIJ Series A/B No 70 - Series C
No 8ICase Concerning The Gabcikovo-Nagymaros Project (hereinafter Danube Dam Case),
Judgment, ICJ Reports 1997, p 51, para 78 and p 53, para 85; Territorial Jurisdiction of the
International Commission of the River Oder, PCIJ Series A-No 23, 1929, p 27
5
Supra
6
Draft Articles on the Law of Transboundary Aquifers, Yearbook of the International Law
Commission, 2008, vol. II, Part Two, p 41, para 3 of commentary to draft article 4
7
North Sea Continental Shelf Cases, Judgment, ICJ Reports 1969, p 49-50, para 91
8
Draft articles on the law of the non-navigational uses of international watercourses and
commentaries thereto and resolution on transboundary confined groundwater, International Law
Commission, 1994, p 97
9
Draft Articles on the Law of Transboundary Aquifers, p 42, para 4 of commentary to draft
article 4
10
Compromis, para 26
11
Compromis, para 34
12
Compromis, para 4, 16
13
Compromis, para 21
14
Compromis, para 22
 1. The extraction of water in Respondents territory caused permanent
lowering of the water table in the region damaging Applicants
farmlands and agriculture industry.

The principle of prevention, as a customary rule15, obliges States to use all the means at

its disposal in order to avoid activities which take place in its territory, or in any area under its

jurisdiction, causing significant damage to the environment of another State. Although each state

has the right to exploit resources within its territory, there is a corresponding obligation to ensure

equitable and reasonable use of shared resources, which includes a due- diligence obligation not

to cause significant harm16. Significant means something which is more than detectable but

need not be at the level of serious or substantial17.

In 2009, three years after Respondent began operating thirty pump wells 18 to extract

water from the Greater Inata Aquifer, Atanian farmers reported that wells, springs, and small

streams were drying up19. By 2010, the operation of the Savali Pipeline had caused a permanent

lowering of the water table in the region. As a result, twenty percent of Atanian farmland could

no longer be farmed20 costing AtaniaUS$300 million in the loss of food and other agricultural

products21.

15
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (I), p
242, para 29.
16
Article 6, Draft Articles on the Law of Transboundary Aquifers
17
Commentaries to the draft articles on the Law on the Non-navigational uses of International
Watercourses, Yearbook 1994, vol. II (Part Two), para. 222; Commentaries to the draft
articles on Prevention of Transboundary Harm from Hazardous Activities, Yearbook ... 2001,
vol. II (Part Two), para. 98; and the draft principles on the allocation of loss in the case of
transboundary harm arising out of hazardous activities, Official Records of the General
Assembly, Sixty-first Session, Supplement No. 10 (A/61/10), para. 67.
18
Compromis para 24
19
Compromis, para 27
20
Compromis, para 28
21
Compromis, para 29
 D. RESPONDENT VIOLATED ITS DUTY TO COOPERATE.

1. Respondents extraction activities were carried out without consultation

and in sheer disregard Applicants common interest over the Greater
Inata Aquifer.

The duty to cooperate in relation to the utilization of common natural resources is well

entrenched in international law22. The duty to cooperate envisages the establishment of joint

mechanisms for cooperation which refers to a mutually agreeable means of decision-making

among aquifer States. In practical terms, such joint mechanisms include creation of a

commission, the exchange of information and databases, coordinated communication,

monitoring, early warning and alarm system, management as well as research and

development23.

Respondent unilaterally implemented its extraction program and altogether refused to

negotiate with Applicant regarding the suspension of the Savali Pipeline operations24.

E. RESPONDENT FAILED TO COMPLY WITH ITS DUTY TO CONDUCT A

TRANSBOUNDARY ENVIRONMENTAL IMPACT ASSESSMENT.

Where there is a risk that the proposed industrial activity may have a significant adverse

impact in a transboundary context, in particular, on a shared resource, States are required under

22
Article 3 of the Charter of Economic Rights and Duties of States, General Assembly resolution
3281 (XXIX); General Assembly resolution 2995 (XXVII) and resolution 3129 (XXVIII) on
cooperation in the field of the environment concerning natural resources shared by two or more
States; Stockholm Declaration on the Human Environment (1972), Principle 24; ECE annual
report (28 April 1986-10 April 1987), Official Records of the Economic and Social Council,
1987, Supplement No. 13 (E/1987/33-E/ECE/1148), chap. IV, decision I (42).
23
Draft Articles on the Law of Transboundary Aquifers, p 49, para 3 of commentary to article 7
24
Compromis, para 33
general international law to undertake an environmental impact assessment25. The environmental

impact assessment must be conducted prior to the implementation of a project and once

operations have started and, where necessary, throughout the life of the project, continuous

monitoring of its effects on the environment shall be undertaken26. The assessment should

include the effects of the activity not only on persons and property, but also on the environment

of other States27.

What Respondent conducted was a feasibility study28 instead of an environmental impact

assessment and did not include an assessment of the impact on Atanias natural water resources.

F. RESPONDENT DEPRIVED APPLICANT OF ITS ABILITY TO REALIZE

THE RIGHT TO WATER FOR ITS OWN CITIZENS

State parties to the International Covenant on Economic, Social, and Cultural Rights have

to respect the enjoyment of the right to water29 in other countries. International cooperation

requires state parties to refrain from actions that interfere, directly or indirectly, with the

enjoyment of the right to water in other countries. Any activities undertaken within the State

partys jurisdiction should not deprive another country of the ability to realize the right to water

for persons in its jurisdiction30.

25
Case Concerning Pulp Mills On The River Uruguay (hereinafter Pulp Mills Case), ICJ Reports
2010, p 83, para 204
26
Supra, para 205
27
ILC Report (2001) GAOR A/56/10, commentary to Article 7, at pp. 402-5.
28
Compromis, para 20
29
International Covenant on Economic, Social, and Cultural Rights , Article 11, paragraph 1
30
UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15:
The Right to Water (Arts. 11 and 12 of the Covenant), 20 January 2003, E/C.12/2002/11, Para 30
 Respondents extraction activities prevented water seepage from the Aquifer for THE

irrigation of farmlands, forcing Applicant to impose water use quotas on every household, farm,

and business in Atania in order to allocate more water to agricultural production31.

II. THE SAVALI PIPELINE OPERATIONS BREACH RESPONDENTS

INTERNATIONAL OBLIGATIONS WITH RESPECT TO THE KIN
CANYON COMPLEX AND THEREFORE MUST CEASE

A. The Kin Canyon Complex is part of the cultural and natural heritage of
humankind requiring protection and preservation.

Since the Kin Canyon Complex is a cultural and natural heritage of humankind, Rahad

only acts as its custodian.32 Accordingly, Rahad has the obligation to protect and preserve the

Complex from destruction or any threat thereof.

1. The Kin Canyon Complex is a UNESCO World Heritage Site.

Areas including archaeological sites which are of outstanding universal value from the

historical, aesthetic, ethnological or anthropological point of view are cultural heritage.33

Further, natural sites or precisely delineated natural areas of outstanding universal value from

31
Compromis, para 34.
32
1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict with
Regulations for the Execution of the Convention, Preamble; 1999 First and Second Protocols to
the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed
Conflict; 1972 Convention Concerning the Protection of the World Cultural and Natural
Heritage, Preamble; 2001 Convention on the Protection of the Underwater Cultural Heritage,
Preamble; 1935 Treaty on the Protection of Artistic and Scientific Institutions and Historic
Monuments, Preamble; UNESCO Recommendation on International Principles Applicable to
Archaeological Excavations; 1972 UNESCO Recommendation concerning the Protection, at
National Level, of the Cultural and Natural Heritage; UNESCO Universal Declaration on
Cultural Diversity.
33
1972 World Heritage Convention, Article 1, para. 3.
 the point of view of science, conservation or natural beauty are considered natural heritage.34

An archeological site is of outstanding universal value if it is included in the World Heritage

List. For inclusion in the list is based on the outstanding universal value of the property as

considered by the World Heritage Committee.35

The Kin Canyon Complex is a cultural heritage of humankind because it is included in the

World Heritage List.36 In addition, the complex is of outstanding universal value from the

historical and scientific point of view as it is a rich source of archaeological treasures of early

human civilizations.37 It is also a source of scientific discoveries as evidence of its mixed

heritage status.38

2.Rahad is only a custodian of the Kin Canyon Complex for the benefit

of all.

a. Rahad is bound by conventional treaty rule.

Rahad has the legal obligation to protect and preserve the Kin Canyon Complex because it is

a cultural and natural heritage of humankind. A state has a duty to protect and conserve its

cultural and natural heritage and transmit it to the future generations.39 Rahad is party to the

1972 World Heritage Convention.40

b. Rahad is a custodian of the Kin Canyon Complex under customary

international law.

34
1972 World Heritage Convention, Article 2, para. 3.
35
1972 World Heritage Convention, Article 11, para. 2.
36
Compromis, para. 13.
37
Compromis, para. 6.
38
Compromis, para. 13.
39
1972 World Heritage Convention, Article 4.
40
Compromis, para. 59.
 Rahad has the obligation erga omnes to protect and preserve cultural and natural heritage for

the benefit of humankind. A damage to cultural property belonging to any people whatsoever

means damage to the cultural heritage of all mankind, since each people makes its

contribution to the culture of the world.41 It is customary rule that greater protection is

afforded to cultural property during peacetime than during the existence of an armed

conflict.42

B. Rahad violates its international obligations to protect and preserve the Kin

Canyon Complex.

1. Rahad threatens the destruction of the Kin Canyon Complex.

Rahad in conducting Savali Pipeline Project did not take effective measures to ensure the

protection and preservation of the Kin Canyon Complex. A state has to develop scientific and

technical studies and research and to work out such operating methods as will make the State

capable of counteracting the dangers that threaten its cultural or natural heritage. 43 It also has

to take the appropriate legal, scientific, technical, administrative and financial measures

necessary for the identification, protection, conservation, presentation and rehabilitation of

this heritage.44 Apart from Rahads initial attempt to preserve the Kin Canyon Complex by

41
1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict,
Preamble; 1972 World Heritage Convention, Preamble.
42
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 (I), p.
226; 2003 UNESCO Declaration concerning Intentional Destruction of Cultural Property.
Prosecutor v. Strugar, Trial Judgment, para. 232; Prosecutor v. Jokic, Sentencing, para. 46.
Prosecutor v. Kordic and Cerkez, Trial Judgment, para. 206.
43
1972 World Heritage Convention, Article 5(c).
44
1972 World Heritage Convention, Article 5(d).
 drilling to areas more than 15 kilometers outside of the Complexs buffer zone,45 Rahad did

not anymore conduct a thorough scientific study as to the impact of its drilling to the

Complex as recommended by the World Heritage Committee.46 Rahad did not take further

actions towards protection and preservation even after the structural degradation of the

Complex and collapse of some of its parts.47

2. Rahad violates the principle of sovereign equality.

Rahads Savali Pipeline drilling violates the territorial integrity of Atania. The destruction of

the Kin Canyon Complex and collapse of some of its parts located within the territory of

Atania constitutes a violation of Atanias territorial integrity.48

C. Rahad therefore must cease operating its Savali Pipeline Project.

Given Rahads breaches of its international obligations, it therefore must cease its Savali

Pipeline Project. Under the laws of state responsibility, a state responsible for an

internationally wrongful act is obliged to cease that act 49 and to offer appropriate assurances

and guarantees of non-repetition, if circumstances so require.50

III. RAHAD MUST IMMEDIATELY RETURN THE RUBY SIPAR TO ATANIA,

ITS LAWFUL OWNER

45
Compromis, para. 26.
46
Compromis, para. 25.
47
Compromis, para. 30.
48
Charter of the United Nations, Article 2(1); Case Concerning Pulp Mills On The River
Uruguay (hereinafter Pulp Mills Case), ICJ Reports 2010, p 83, para 204.
49
Articles on Responsibility of States for Internationally Wrongful Acts (Dec. 12, 2001)
[hereinafter ARSIWA], International Law Commission, International Law Commission, G.A.
Res. 56/83, Annex, art. 30, U.N. Doc.A/56/10.
50
ARSIWA, Ibid.
IV. ATANIA OWES NO COMPENSATION TO RAHAD FOR ANY COSTS
INCURRED RELATED TO THE KIN MIGRANTS