I.

Acts of Ritania with respect to the building of Excelsior Island violates international law
thereby entailing primary responsibility

An intentionally wrongful act committed by a state only when a conduct constituting of an

action or omission is attributable to that state under international law and that conduct
constitutes a breach of an international obligation of that state. The applicant seeks to
establish in the manner established below, that the Republic of Ritania is in clear violation of
the international obligations conferred upon it.

A. The actions of Republic of Ritania entail objective responsibility under international

convention, Malachi Gap Treaty and universally accepted environmental principles
i. Actions of Ritania amount to a breach of its conventional obligations
1. The act of RDRM are attributable to Ritania, as it constitutes an organ of
the state

The conduct of any state organ shall be considered an act of that state under
international law whether the organ exercises legislative, executive, judicial
or other function.

State is responsible for conduct of its own organs, acting in that capacity has
long been recognized by international judicial decisions. This can be
perceived from the Moses case.

ICJ has also conferred the rule in categorical terms. The ICJ in difference
relating to immunity from legal process of Special Rapporteur of the
commission on Human Rights, said According to well established rule of
international law the conduct of any organ of state must be regarded as an
act of that state. This rule is of customary character.

The RDRM, an organ of the Ritania government in permitting the

establishment of the Excelsior Island albeit it has an obligation of
determining the potential harms caused to other states. Hence it violates
international law. RDRM is thus a state organ within the norms of
international law. The RDRM is also charged with the duty of conducting
surveillance and regulation of any environment related activity. This duty
provided for sates to survey activities it permits to be conducted.

The act of RDRM in (a) granting license without complying with the
procedure established by international law regarding conduct of full and
adequate environmental impact assessment, (b) failure to conduct
surveillance and regulating activities of EIGP are attributable to the state.
 The RDRM is also charged with the duty to give emergency response to
minimize the risk of damage, as the one caused by dreging of the oceanic
sand stones, and by that of the landslide and to work in cooperation with the
victim state, State of Amalia in this case, to come up with a contingency plan.

2. The act of granting permit without conducting full and adequate EIA
amounts to infringement of Ritanias conventional obligations

States are under obligation to conduct EIA and screening on would be

projects Whether they perform full and sufficient EIA, Art 194(1) of the
UNCLOS dictates, states should take appropriate measures to prevent,
reduce and control pollution of marine environment. Such measures can
be assessment on projects, taking administrative measures for those that
do not comply with this law. The wording of the law is general as states
can have the discretion to choose which measure to apply on the basis of
international law without disregarding the basic principles of UNCLOS.

However, Republic of Ritania granted permit to EIGP without proving

whether it conducted full and sufficient EIA. This act of granting permit
violates the UNCLOS provisions and Republic of Ritania disregards its
obligations of taking specific measures to prevent pollution.

In this respect, the European Commission urged Ireland to bring its

national legislations in assessing the effects of projects on the
environment in line with EU rules. EU recommended this because of the
incomplete EIA conducted by Ireland. This case shows that states should
only check whether their EIA is in compliance with national laws but
international rules. But contrarly, Ritania government violates
international law by not checking whether EIGP conducted a full EIA.

3. Ritania had no right to engage in or to allow dredging activities within the

Malachi Gap.

For protection of marine environment, a state shall take all necessary

measures with respect to activities it conducts in an area to ensure
effective protection of marine environment from harmful effects as a
result of the act.
 Authorities are also required to adopt rules, regulations and procedures
to prevent, reduce and control pollution to the marine environment
caused by activities such as drilling, dredging, excavation, and disposal of
waste.

The acts of Republic of Ritania in dredging oceanic sand and rocks or

allowing activity to be undertaken by EIGP, from within the Malachi gap
are a clear contradiction to its conventional duty under UNCLOS. The
duty imposed on Ritania to protect the marine environment within the
area of the Malachi gap as it consists of the sea bed, the ocean floor and
sub oil thereof beyond the limits of national jurisdiction, denies Ritania
the right to carry out dredging activity. Ritania is also required to adopt
rules, regulations and procedures that protect the area from dredging
activities. But Ritania acted contrary to this rule that denies it the right to
carry out dredging activity.

The Malachi gap from where the dredging happened is a place under the
administration of both nations to which no nation has a claim of
sovereignty. Therefore, the conduct affects the interest of one state
would be against the interest of the other state. Therefore, it denies
Ritania the right to allow or involve in dredging activities of oceanic sand
and rock from the Malachi gap.

4. Alternatively even if Ritania did have such right, Ritania did not conduct
full and sufficient EIA

Even if Republic or Ritania had such right to allow or engage in activity of

dredging, without conducting full and sufficient EIA, further renders its
act of dredging contrary to the provisions of conventions by which it
complies.

5. The direct consequence of dredging oceanic sand and rocks from the
Malachi gap are attributable to Ritania

Article 1 of the ILC establishes that a breach of international law by state

establishes its international responsibility. In addition on the PCIJ the same
principle is applied in various discussions. In the Phosphotaes in Morroco
case PCIJ affirmed that when a state commits an internationally wrongful
act against another state, international responsibility is established. The
ICJ also applies this principle in different cases specifically in the Corfu
channel case. In military and paramilitary activities in and against
 Nicaragua. Under this case it has been established that when a state
commits an internationally wrongful act against another state such a state
bears responsibility against the other one.

The dredging of oceanic sands and rocks from the Malachi gap caused high
water terbidity and disassociation of gas. In addition the dredging caused
land slide that resulted in loss of the Dorian Wrasse. These related wrongs
resulted in affecting the economic interests of Amalia. The social position
of Amalia Accordingly such attribution expressly shows that Republic of
Ritania bears international responsibility.

6. Republic of Ritania contravened with ongoing sceintifc research and

conservation

UNCLOS declares that contravention with ongoing sceintifc research makes

a state responsible and therefore liable. If a state or one of its international
organizations interfere with the ongoing research of another state, such
act stretches responsibility.

Article 2 of the Draft articles of ILC declares that international wrongful act
of a state is established when the conduct is attributable to that state and
such act constitutes a breach of international obligation. These two
elements are referred to by ICJ in various cases on several occasions. In US
diplomatic and consular staff in Tehran case, it was pointed out that in
order to establish the responsibility of the Islamic state of Iran both
elements should be fulfilled.

The act is attributable to Republic of Ritania because such act of

contravention was carried out by EIGP which is Ritanian registered
company. With regard to the element of breaching international
obligation. The ICJ in reference explicitly stated under the Rainbow.
Affair as any violation by a state of any obligation. Hence the obligation
can emanate from international conventions and Republic of Ritania, the
UNCLOS provision and thereby under responsibility.

7. Ritania cannot invoke its domestic laws as justification for failure to

implement international convention

There is an undisputed and fundamental principle of international law that

state parties to a treaty may not invoke the provision of its domestic laws
 as a justification for its failure to perform its obligation under treaty.
Evidentiary to this is the Wimbeldon case.

The mere fact that EIA is expected to be conducted only within the
boundary of Ritania, under Ritanian environment law does not absolve
Ritania from its conventional and international environmental law
obligation to conduct EIA regarding a project having trans-boundary
potential impact.

Similary, prevention of intereference by one environmental organ to

another under Ritanian internal law does not justify the failure of Republic
of Ritania to ensure that its organ complied with international obligations.

B. Actions of RItania constitute violation of the letter and spirit of the Malachi Gap
Treaty

1. Acts of Ritania unduly inhibit the exercise of rights of Amalia

State of Ritania commited an internationally wrongful act by breaching the

terms of the Malachi gap treaty, and its obligation therby the internationally
established principle of Pacta san servanda, the fundamental principle of law
of treaties. Pacta san servanda obliges state parties to the treaty to perform
their obligation in conventions in good faith.

Acts of Ritania relation to the construction of Excelsior island and permitting

the dredging activity within the Malachi gap exhibits the abuse of its
obligation in prejudice to the rights of Amalia. Expressed under bilateral
treaty

A significant step in the direction was made by ICJ when entertaining the
issue in the the international fisheries companies case to establish a state
wrongful act like that of Ritania. Further in the British case in the Spanish
zone of Morrocco case and the Armstrong Corck company case. The ICJ
stressed that any violation by a state of any obligation of whatever origin
gives rise to the state responsibility.

2. Ritanias act of building Excelsior island violates the unique intrust of Amalia

Treaty of the Malachi gap requires both nations when entering into the treaty
to secure their respective intrust by giving due regard to each partys unique
intrust in the Malachi gap including Amalias intrust in fishing activities. For
most recorded history the people of Amalia have praised the flesh of the
 Dorian wrasse which is consumed typically on important holidays making the
Dorian wrasse species uniquely important to Amalia. Because of the strong
traditional consumption the Dorian wrasse efforts to substitute this type of
fish to provide to the market has failed, thus the Amalian economy majorly
depends on such fishing activity generating up to 160 million dollars annually
in the year 2000.

Refusal to fulfill a treaty obligation involves internationally responsibility. The

principle governs the responsibility of states for internationally wrongful acts.
In support of this the case of Claims of Italian nationals residing in Peru.

Based on the principle of Pacta san servanda, the most important principle
of international law, every treaty in force is binding upon the parties to it
and must be performed by them in good faith, as it is also characterized as
fundamental law of treaties supported by Phospet in Morroco case given by
the PCIJ. Republic of Ritania is under duty to implement in good faith the
treaty of Malachi gap, by giving due regard to Amalias unique intrust in the
Malachi gap particularly the fishing of the Dorian Wrasse. Thus the breach of
essential terms of the Malachi gap treaty amounts to wrongful act.

C. Actions of Ritania violated international environmental principles

Agreements are the primary means by which states commit themselves to specific
obligations to protect and enhance the global environment. In developing,
interpreting and implementing agreements, states often refer to certain key
principles. However the Republic of Ritania did not give due consideration to these
international principles of customary international law,

1. The principle of territorial soverienty with trans boundary environmental harm

It is general obligation of states to ensure that activities of a state within their

jurisdiction and control and respect the environment of other states or of areas
beyond national control is part of corpus of international law relating to
environment. Even if the island was built in the uncontested economic zone of
Ritania, and this state has territorial sovereignty involving exclusive right to
display the activities of a state, such right has a collorally duty, the obligation to
protect within the territory the rights of other states. Under this principle of
international law, no state has a right to use or permit the use of its territory in
such manner as to cause injury by fumes in or to the territory of another or the
properties therein.
 Moreover although Ritania did the act pursuant to its own environmental and
developmental principles it also has a responsibility to ensure that activities
within its control do not cause damage to the environment of other states or the
area beyond the limit of its national jurisdiction.

The right of a state to use marine area and natural resources subject to its
sovereignty or jurisdiction is broad but not unlimited. It is qualified by the duty to
have due regard to the right of other states and to the protection and
preservation of marine environment. Also the Montrial rules of 1982 stipulates
that states are under obligation to prevent, abate and control transfrontal
pollution to such an extent that no substantial injury is caused in the territory of
another state.

2. Republic of Ritania acted in contrary to the principle of good faith in building the
Excelsior island

II. State of Ritania in building the Excelsior island omitted to fulfill its obligations under
international conventions, Malachi Gap Treaty and international Environmental
principles

A. State of Ritania did not fulfill its obligation under international conventions

1. Republic of Ritania failed to give due notice about the building of Excelsior
island

Every internationally wrongful act of a state entails international

responsibility of that state and the breach of international law by a state
entails its international responsibility and an internationally wrongful act of
a state may consist in one or more action or omissions or a combination of
both. This can be established from the Nicaragua Vs. US case and also the
Rainbow case.

Ritania thereby when omitting its conventional duties under international law
committed an internatioanally wrongful act for which Ritania is responsible.

UNCLOS specifies that in case of construction of artificial islands and

installations the state shall give due notice which helps other states to
establish its own mechanisms to halt the problem.
 The UN General Assembly Resolution called for states to establish adequate
international standards for the conventions and harmonious exploration of
natural resources common to two or more states. In this scenario states have
an obligation to adopt international standards for achieving best results in
the marine environment. However Republic of RItania failed to adopt such
standards. The Ritanian government allows the EIGP to build an artificial
island without giving due notice to the state of Amalia.

The resolution also provides that co operation between countries must be

established on the basis of a system of information and prior consultation,
the charter of economic rights and duties of state 1974 states to a similar
effect

In the exploration of natural resources shared by two or more

countries, each state must co operate on the basis of a system of information
and prior consultation in order to achieve optimum use of such resources
without causing danger to the legitimate intrust of others

However though Republic of Ritania holds such obligation it did not fulfill it.

2. Ritania omitted its obligation to take necessary measures in protecting life in

the Malachi gap

UNCLOS specifies that coastal states shall adopt laws and regulations to
prevent, reduce and control pollution of marine environment arising from
artificial islands. Such laws, regulations and measures shall not be less
effective than international rules, standards, recommended practices and
procedures. In addition, Article 144 (3) of UNCLOS obliges states to prevent
pollution from installations. States are under international obligation to adopt
measures that prevent existence of pollution in the marine environment.
Despite its obligation, Republic of Ritania failed to take adequate measures to
prevent pollution in the Malachi gap. Evidence to this is the British claim in
the Spanish zone of Morroco and the Dickson Carwhell company case.

3. Ritania did not fulfill its obligation to ensure activities within the Malachi gap

International conventions declare that state have responsibility to ensure

activities conducted in the area In addition Article 204 (2) of UNCLOS
states that states should conduct surveillance of projects to which they
granted permit, complying with international standards. Even after
commission, states should supervise the activities to prevent the commission.
 Republic of Ritania did not execute its obligation under UNCLOS to ensure
activities within the Malachi gap and after pollution did not make any
supervision or surveillance.

4. Ritania omitted the duy of assisting developing states

United Nations General Assembly Resolution No 1514 (XI) states that

activities in the area should be conducted in a way which can empower the
benefit of man kind especially the developing state should get an assistance
from developed states. In addition developed states are under obligation to
assist developed states by promoting programs of scientific, educational,
technical and other assistance for protection of mairne environment. Even
such obligations are stipulated for developed states, Ritania did not fulfill
such obligations. Evidence to this are the cases.

5. Republic of Ritania failed to perform its duty to cooperate

VCLT declares that every treaty in force is binding upon the parties to it and
must be performed by them in good faith. This principle is known as Pacta
sunt servanda, parties to a treaty are responsible for the obligation they bear
on the treaty. A party to the treaty is bound by the terms of the treaty.
Malachi gap treaty under art. 12 (D) states that the parties should cooperate
with each other in relation to their respective rights giving due regard to each
party unique interest in the Malachi gap. In this treaty obligation to
cooperate is imposed on states.

Irrespective of the obligation, the Ritanian government failed in case where

the EISA notified the dredging can cause high effects on the marine
environment, it did not take any appropriate measure to halt the problem.

Court practices show that states in treaty shall work in cooperation and to
effective implementation of the terms of the treaty. However the Ritanain
government did not apply this, and it is against international obligation of
states.

B. The omission of Ritania is in clear violation of international environmental

principles

1. The Republic of Ritania omitted to comply with the principles of due diligence
and due care
 The obligation of a state to prevent trans boundary harm is one of due
diliegence or best effort obligation which requires all states to have taken all
reasonable or necessary measures to prevent a given event from occurring.
This principle is the standard bases for environmental protection and is
stipulated under the ILC draft articles.

The act of Ritania is the direct and proximate result of the trans boundary act,
as the necessary causal connection is satisfied in the consequence of the act
or omission in question. It is clear that Ritanias failure to act with due
diligence has a connection to the trans boundary harm caused. In support of
this, it is worth mentioning the Alebama case, also Art. 194 paragraph 1 of
UNCLOS, and Article I, II and VII paragraph 2 of the convention on prevention
of marine pollution by dumping of waste and other matter.

2. Ritania failed to give due regard to the precautionary principle while building
Excelsior island

The precautionary principle is moving rapidly through soft laws being

incorporated into treaties and at the same time hardening for an academic
principle to a more clearly defined objective principle.

Where there are threats of irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost effective measures to
prevent environmental degradation.

States are required to adopt principles of precaution on the basis for their
policies drawn to prevent and eliminate marine pollution.

This especially applies when there is a reason to assume that certain

damages or harmful effects on the living resources of the sea are likely to be
caused by such substances even where there is no scientific evidence to
prove causal link between omission and effect. With regard to this a
precautionary approach is necessary to prevent the degradation of marine
envirnment. Also the ICJ recognizes the parties agreement on the need to
make concerns seriously and to take the required precautionary measures

Hence the reckless attitude of Ritania with regard to the Excelsior island
project in spite of constant warnings about its significant negative effects
should not be as a justification on the ground of the precautionary principle.
To support this consideration should be given for ICJs advisory opinion on the
 legality of threat or use of nuclear weapons, the TrialsmiGtters case and the
Gabichikovo Nagyamaros case.

Principle 2 of the Stockholm declaration and Principle 2 of the Rio declaration

in addition to the general assembly resolution 2995 (XXVII) also stress on the
importance of the precautionary principle.

3. Ritania failed to observe principle of non discrimination while conducting EIA

Principle of non discrimination provides that each state should ensure that its
regime of environmental protection when addressing pollution originating
within the state, does not discriminate between pollution affecting the state
and pollution affecting other states. Multilateral agreements on EIA require
states to address the extra-territorial effects of projects within their
jurisdiction in the same manner as they do the national effects of these
projects. The EIA is meant to achieve consideration of a project and
environmental impacts and to influence policy making by predicting thea\
implication of a project aiding mitigation and alienation of any harm.

However in clear violation of those principles, Ritania did not address the
potential impacts of the dredging program on the waters of the Malachi gap
or fish species living there.

4. Ritania failed to conduct prior notification, cooperation and consultation

before building Excelsior island

In exploration of natural resources shared by two or more states each state

must cooperate on the basis of a system of information and prior
consultation in order to achieve optimum use of such resources without
causing damage to the legitimate interest of others. Commonly obligation to
cooperate requires regular exchange of information, notification of measures
or activities which might have effects on other interested states and where
real difference emerges between two states making use of shared resource,
the obligation to enter into consultation and negotiation. In Reclamation
case, ICJ decided in ordering of both parties to cooperate and consult in
establishing a group of independent experts in terms of reference agreed
upon by both sides. Even in a situation the undertaken act is not prohibited
under international law, Ritania had a duty to consider the interest of other
states that might be affected. The duty to consult and negotiate has been
mentioned in the North Sea Continental Shelf case, where the court refers to
the obligation to enter into a meaningful negotiation.
 Ritania was under obligation to cooperate, consult and notify Amalia. In other
words, Amalia is entitled to be notified about the essential details concerning
the project of Excelsior Island. However Ritania failed to fulfill such obligation,
which violates this international environmental principle.

III. Republic of Ritania is liable for reparation to the damage caused and state of Amalia
is entitled for compensation owing to the damage caused

A. The non ratification of UNCLOS does not preclude Amalea from claiming its right
under the convention

Signature constitutes the first step to participation in the convention and it would
express and proclaim the eventual attitude of signatory state.

It has also been stipulated under the Vienna Convention that where a treaty is
subject to ratification, acceptance or approval, signatory states are under the
obligation of good faith to refrain from acts amounting to defeat the object of
the treaty until they have made their intention clear of not becoming parties. A
contrary reading of this provision shows that states become party to UNCLOS
when they put their signature upon it.

State of Amalea can claim its right since it fulfills all obligations specified under
the same. Alternatively, even if Amalea did not ratify UNCLOS the provisions of
the convention are generally held to reflect customary international law.

B. State of Ritania is liable for reparation to Amalea for the trans-boundary harm
caused

Stockholm declaration under principle 21 and Rio declaration under principle 2

specify that state of origin shall take appropriate measures to prevent significant
trans-boundary harm. Such principles get the status of customary international
law.

Republic of Ritania violates these obligations that it did not take appropriate
measures to prevent and alleviate the problem. This violation of international
obligation entails state responsibility.

A breach of international law by a state entails its international responsibility.

The PCIJ applied the principle of state responsibility for international wrongful
acts under its decisions in the Phosphates in Morroco case. PCIJ affirmed that
when a state commits an internationally wrongful act against another state
 international obligation is established between the two states. ICJ has applied the
principle on several occasions. In Corfu channel case, in its advisory opinion on
Reparation for injuries.

The obligation to make full reparation is an obligation of responsible state

consequent upon the commission of an internationally wrongful act. The PCIJ in
the factory at Charau case stated that It is a principle of international law that
breach of an engagement involves an obligation to make reparation in an
adequate form. In this case, the PCIJ made it clear that a state which commits an
internationally wrongful act shall repair it.

State of Ritania committed an internationally wrongful act by violating its

international obligation; accordingly it is obliged to make reparation for such
wrongful acts.

3. Republic of Ritania is under an obligation to make restitution

A state responsible for an internationally wrongful act is under an obligation to

make restitution, that is to re-establish the situation which existed before the
wrongful act was committed, provided and to the extent that restitution (a)is not
materially impossible (b) does not involve a burden out of all proportion to the
benefit deriving from restitution instead of compensation.

The obligation of restitution for wrongful acts is now been firmly established by
court decisions. States are under obligation to restitute what is wrongfully
committed.

Republic of Ritania has an obligation to restitute what it intentionally commits. It

has an obligation to restitute the pollution of the water of Malachi gap and to
restitute the damage of the Dorian wrasse in the Sirius Plateau.

4. State of Amalea is entitled to compensation owing to the damage caused

Where the responsibility of a state is established, an injured state is entitled to

obtain compensation from the state which has committed an internationally
wrongful act for the damage caused by it. It is equally well established that an
international court or tribunal which has jurisdiction with respect ot claim of
state responsibility has, as an aspect of that jurisdiction, the power to award
compensation for damage suffered. The role of compensation is to fill in any gaps
so as to ensure full reparation for damage suffered.
 Compensation claims for pollution costs have been dealt with by UNLC in the
context of assessing Iraqs liability under international law, for any direct loss,
damage, including environmental damage and the depletion of natural
resources as a result of unlawful occupation and invasion of Kuwait.
Compensations main function is to address the actual losses incurred as a result
of internationally wrongful act.

Hence it is most respectfully submitted owing to the grave and substantial

damage caused to Amalea due to the lack of reasonable diligence and arbitrary
actions of Ritania and in compliance with the polluter pays principle, Amalea is
entitled to the right to claim compensation and Ritania cannot in any case evade
the responsibility for the environmental damage caused.

5. Amalea is entitlted to compensation for breach of Malachi gap treaty

Based on the principle of pacta sunt servanda state parties to a treaty are bound
to the terms and conditions of treaties and opinons have also increasingly
recognized the breach of a treaty as a wrongful act entailing responsibility.
Ritania is liable to compensate Amalea for breach of the Malachi gap treaty for
conducting dredging activities in the Malachi gap and affecting unique interest of
Amalia. It has also established that breach of a treaty entails liability to the state
which committed the breach while entitling the victim state the right to be
compensated.

6. State of Ritania should furnish a guarantee to refrain in the future from

conducting activities which impede the bonofide implementation of the Malachi
gap treaty

It has been established by court decisions that where the international

responsibility is established the state which sustained an internationally wrongful
act can claim that the other provide adequate guarantee that it will refrain in the
future from preventing the effective implementation of the treaty.

Ritania commits an internationally wrongful act against Amalea and Amalea

would claim providing the guarantee by Ritania to refrain from acts which
impede the bonofide implementation of the Malachi gap treaty.