TEAM CODE: 420

IN THE INTERNATIONAL COURT OF JUSTICE

AT
THE PEACE PALACE, THE HAGUE

THE REPUBLIC OF MEROVIDEA

(APPLICANT)
V.
THE FEDERATION OF BREZANIA
(RESPONDENT)

CASE CONCERNING A SPECIAL AGREEMENT TO SUBMIT THE

INTERNATIONAL COURT OF JUSTICE THE DIFFERENCES BETWEEN THE
PARTIES CONCEERNING THE LEGALITY OF DEFENCE NECESSITY IN
INTERLINKING OF RIVERS AND OTHER ISSUES

MEMORIAL FOR THE APPELLANT

4th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2017
OCTOBER 2017

1
 TABLE OF CONTENTS

Table of Contents……………………………………………………………………………..ii

Index of Authorities……………………………………………………………………….iii-iv

Statement of Jurisdiction……………………………………………………………………...v

Statement of Facts………………………………………………………………………vi-vii

Statement of Issues………………………………………………………………………….viii

Legal Pleadings……………………………………………………………………………….2

1. Brezania has violated the “Treaty of Equity” and the “Uba Agreement” governing the

equitable sharing of water and by doing this Brezania has violated the right to water

of Merovedian people. ……………………………………………………………...2-3

2. Brezania has caused irreversible environmental damage to Merovidea and must make

reparations to Merovidea for all direct and indirect expenses incurred and accruing as

a result of its actions (and inactions) regarding environmental and economic damage

and the liability of Brezania in respect to environmental damage is co-extensive with

the corporations directly causing this damage………………………………………4-7

3. Merovidea has a right to subject assets of Central Bank of Brezania to enforcement

proceedings………………………………………………………………………...8-10

4. Merovidea has right to put strict import controls on Brezanian imports until its

industries continue to cause environmental damage to Merovidea and the same is

within its rights being a member of WTO………………………………………..11-14

5. Merovidea has a right to conduct nuclear tests on its soil and has not violated any

principle of international law……………………………………………………..15-17

6. Merovidea has sole right over the Creek of Tenling as per historical evidence….18-19

Prayer for Relief……………………………………………………………………………20

ii
 INDEX OF AUTHORITIES

1. TARCISIO HARDMAN REIS, COMPENSATION FOR ENVIRONMENTAL

DAMAGES UNDER INTERNATIONAL LAW 83 (2011).
2. Factory at Chorzow (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, ¶ 125 (Sept. 13).
3. Rainbow Warrior Arbitration (N.Z. v. Fr.) (1990) 82 ILR 499; Convention on the
Prevention and Punishment of Genocide (Bosn. & Herz. v. Yugosl.) 1996. I.C.J.
Reports (July 11), p. 595; see also M/V Saiga (No. 2) Case (Saint Vincent and the
Grenadines v. Guinea), ITLOS 120 ILR, pp. 143, 199.
4. Gabcikovo-Nagymaros Project (Hung. v. Slov.) 1997 I.C.J. 7, 78 (Sept. 25).
5. Responsibility for Wrongful Acts, Responsibility of States for Internationally
Wrongful Acts, art. 2, U.N. Doc. A/56/49(Vol. I)/Corr.4., art. 4, comm. 3. (2001)
6. André Nollkaemper, ‘Concurrence Between Individual Responsibility and State
Responsibility in International Law’, 52 ICLQ (2003) 615-640.
7. Costello-Roberts v. United Kingdom, European Court of Human Rights, Series A vol.
48, para. 27.
8. Ian Brownlie, “Public International Law”, Oxford University Press, 6th Edition, 2003
at 509.
9. M. Sornarajah, “The International Law on Foreign Investment” (1994) at 283,
Cambridge University Press.
10. Huntingon v Attrill [1893] AC 150 at 156
11. Schemmer v Property Resources Ltd [1975] Ch 273, [1974] 3 All ER 451
12. SA Consrtium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279 at 299-
300
13. Wisconsin v. The Pelican Co., 127 U.S. 265 (1888).
14. Shrimp Turtle and Dolphin-tuna case studies.
15. Uruguay v. 15 Developed Countries. Recourse to Art. XXIII, 15 Nov. 1962, BISD
(11th Suppl.) 95, at 99–100.
16. US – Taxes on Petroleum and Certain Imported Substances, 17 June 1987, BISD
(34th Suppl.) 136, at para. 5.1.9.
17. J.H. Jackson, The Jurisprudence of GATT and the WTO (2000), at 176.
18. In Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles
from Italy, WT/DS189/R, 28 Sept. 2001

iii
19. United States, Statement of Administrative Action, Understanding on Rules and
Procedures Governing the Settlement of Disputes
20. Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from
Mexico, Panel Report, 17 Nov. 2000, WT/DS156/R, at paras 8.105 ff.
21. Legality of the Threat or Use of NuclearWeapons, (Advisory Opinion), July 8, 1996,
(1996) ICJ Reports 226
22. Nicaragua v. United States of America

TREATIES AND CONVENTIONS

1. Geneva Convention 12 August 1949

2. Vienna Convention on Diplomatic Relations (1961)
3. Convention on the Protection and Use of Trans-boundary watercourses and
International Lakes (1992)
4. The Convention on the Law of Non- Navigational Uses of International Watercourses,
(1997)
5. The Convention on Nuclear Safety (1994)
6. Protocol to Amend the 1963 Vienna Convention on Civil Liability for Nuclear
Damage and the Paris Convention, 1988
7. Convention on Supplementary Compensation for Nuclear Damage (CSC), 1997
8. United Nations Convention to Combat Desertification (1994)
9. Convention on the Prevention of Marine Pollution by the dumping of wastes and
Other Matter (1972)
10. UN Convention on the Law of the Sea
11. International Covenant on Civil and Political Rights (1966)
12. Ramsar Convention.
13. Treaty of Equity
14. Uba Agreement

iv
 STATEMENT OF JURISDICTION

On behalf of the Republic of Merovidea and the Federation of Brezania, and in accordance
with Article 40(1) of the Statute of the International Court of Justice, who have the honour to
transmit to you an original of the Special Agreement for submission to the International Court
of Justice of differences between the Applicant and the Respondent concerning the legality of
defence of necessity in interlinking of rivers and other issues, signed in the Hague, The
Netherlands on twelfth day of September in the year two thousand and seventeen.

v
 STATEMENT OF FACTS

1. Applicant, the Republic of Merovidea (“Merovidea”), and Respondent, the Federation

of Brezania (“Brezania”) are neighbouring states that occupy the North Amber Sub-
Continent. The Creek of Tenling (“The creek”), one of the largest fishing grounds in
North Amber Sub-Continent, separates Merovidea from Brezania at the latter’s
southern border and opens up into the Amberosia Ocean.
2. The Republic of Merovidea, a democracy and a developed nation became the first
developed nation in the world to adopt an environment based economy. All vocations
which are considered to be even slightly harmful to environment are banned in
Merovidea (with defence sector being the sole exception) .
3. Both the nations entered into a treaty “Treaty of Equity” and agreed to share water of
the rivers of the Fountain river system in an equitable manner.
4. During the years 1996-1999 Brezania witnessed frequent devastating floods and
significant economic loss. Merovidea granted a MFN status to Brezania. Brezania
government wanted to interlink the various rivers flowing through Brezania to prevent
drought and floods.
5. Adverse effects of this project were evident, the concentration of mercury gradually
started increasing in Merovedian waters. The number of people diagnosed with
Minamata disease Merovidea accused Brezania of waging environmental terrorism on
its soil and inflicting a covert biological and chemical warfare on its subjects.
6. Merovedian Superior Court while acting on a writ petition filed by a citizen’s group
“Minamata Sufferers” attached the assets of Central Bank of Brezania located in
Merovidea as a security against economic reparations.
7. In the north-western Zastu, the only source of fresh waterbecame an almost non
navigable and desertification of Merovidea begun. MFN status of Brezania was
revoked and there was strict import controls over all imports coming from Brezania
and a green cess @12% above all other taxes. On 26th January 2017 ‘Merovidea
Youth Army’crossed over the border and attacked a mineral exploration plant using
petrol bombs.
8. Merovidea conducted a series of contrived nuclear tests within 20km of its border
with Brezania.

vi
9. IAEA research on concluded that the tests have caused certain irreversible damage to
the ecology of the area.
10. Both Merovidea and Brezania are members of United Nations, WTO and several
conventions.

vii
 STATEMENT OF ISSUES

Pursuant to the Statute of the International Court of Justice, the questions presented before
this Hon’ble Court:
1. Whether Brezania has violated the “Treaty of Equity” and “Uba Agreement”
governing the equitable sharing of water and by doing this Brezania has violated the
right to water of Merovidean people.
2. Whether Brezania has caused irreversible environmental damage to Merovidea and
must make reparations to Merovidea for all direct and indirect expenses incurred and
accruing as a result of its actions (and inactions) regarding environmental and
economic damage and the liability of Brezania in respect to environmental damage is
co-extensive with the corporations directly causing this damage.
3. Whether Merovidea has a right to subject assets of Central Bank of Brezania to
enforcement proceedings.
4. Whether Merovidea has a right to put strict import controls on Brezanian imports until
its industries continue to cause environmental damage to Merovidea and the same is
within its rights being a member of WTO.
5. Whether Merovidea has a right to conduct nuclear tests on its soil and has not violated
any principle of international law.
6. Whether Merovidea has sole right over the creek of Tenling as per historical evidence.

viii
 LEGAL PLEADINGS

1. Brezania has violated the “Treaty of Equity” and “Uba Agreement”

governing the equitable sharing of water and by doing this Brezania
has violated the right to water of Merovedian people.

Both parties will share waters of the river system for agricultural, domestic, household and
municipal use, industrial use, power generation use as also transportation without polluting its
waters.1 By interlinking the rivers and constructing dams over them Brezania has violated the
rights of Merovedian people to use the water as every summer the Zastu River would dry up
on the Merovidean side because of dams built by Brezania. Also in the North-eastern
province a first instance of mercury poisoning of Niramastu was witnessed. Researchers
discovered elevated levels of mercury, fluorine and selenium in the waters of Niramastu. It
was not difficult to ascertain the source of this pollution.2 The pollution was caused due to
interlinking of the rivers.
The parties undertake that it shall be their primary responsibility under this treaty to take all
necessary steps to preserve the rich ecosystem associated throughout the course of the rivers.3
But in the present case, Brezania has reverted from its primary responsibility to take all steps
to preserve the rich ecosystem as by interlinking the rivers it has caused great damages to the
ecosystem of Merovidea. The level of Mercury in the rivers of Merovidea increased due to
the interlinking of rivers and it caused huge loss to human as well as aquatic life of
Merovidea. The number of Minamata sufferers rose from 300 in 2010 to 7000 in 2013 and
25000 in 2015. Independent research groups assessed that at least 10,000 lives were annually
lost due to direct or indirect environmental impact in Merovidea.4 It also caused huge
economic loss of $170 bn.5
Any change in present status of water sharing shall be based on equitable principles and must
be done by obtaining prior consent or taking the other party into confidence. 6 In the present

1
Article 2 of the Treaty of Equity
2
Moot Preposition ¶ 12
3
Article 3 of the Treaty of Equity
4
Moot Preposition ¶ 17
5
Ibid.
6
Article 5 of the Treaty of Equity

2|Page
case the consent of Merovidea to interlink the rivers was never obtained, moreover,
Merovidea had opposed to the idea of interlinking the rivers at several times.
This unilateral act by Brezania received harsh criticism from Merovidea. The Prime Minister
of Merovidea Ms Marcelou Seno reminded her Brezanian counterpart “... By going against
the agreed terms of the Treaty of Equity and the Uba Agreement, the Federation of Brezania
has started treading a very dangerous path. I appeal to the world community to take note of
this action, for if, all treaties could so brazenly be violated, the sacred thread that binds the
world will break in a whiff (sic)”7
The treaty of Equity talks about the sharing of water in an equitable manner and by
interlinking the rivers Brezania has violated the terms of using the water equitably. And
hence the Hon’ble court should hold that Brezania has violated the “Treaty of Equity” and
“Uba Agreement” governing the equitable sharing of water and by doing this Brezania has
violated the right to water of Merovedian people

7
Moot Preposition ¶ 14

3|Page
 2. Brezania has caused irreversible environmental damage to
Merovidea and must make reparations to Merovidea for all direct
and indirect expenses incurred and accruing as a result of its actions
(and inactions) regarding environmental and economic damage and
the liability of Brezania in respect to environmental damage is co-
extensive with the corporations directly causing this damage.

It is a general principle of international law that a breach of an international obligation

involves a duty to make reparation, first recognized in the Factory at Chorzow case.8 There,
the Permanent Court of International Justice emphasized “that reparation must, as far as
possible, wipe out all the consequences of the illegal act and re-establish the situation which
would, in all probability, have existed if that act had not been committed.”9
This principle has been affirmed by numerous ICJ decisions,10 including the Gabcikovo-
Nagymaros Project in which the ICJ declared that “it is a well-established rule of
international law that an injured State is entitled to obtain compensation from the State which
has committed an internationally wrongful act for the damage caused by it.”11
An intentionally wrongful act of a State of an action or omission that (1) is attributive to the
State under international law and (2) constitutes a breach of an international obligation of the
State.12
Contracting Parties shall individually and collectively promote the effective control of all
sources of pollution of the marine environment, and pledge themselves especially to take all
practicable steps to prevent the pollution of the sea by the dumping of waste and other matter

8
TARCISIO HARDMAN REIS, COMPENSATION FOR ENVIRONMENTAL DAMAGES UNDER
INTERNATIONAL LAW 83 (2011).
9
Factory at Chorzow (Germ. v. Pol.), 1928 P.C.I.J. (ser. A) No. 17, ¶ 125 (Sept. 13).
10
Rainbow Warrior Arbitration (N.Z. v. Fr.) (1990) 82 ILR 499; Convention on the Prevention and Punishment
of Genocide (Bosn. & Herz. v. Yugosl.) 1996. I.C.J. Reports (July 11), p. 595; see also M/V Saiga (No. 2) Case
(Saint Vincent and the Grenadines v. Guinea), ITLOS 120 ILR, pp. 143, 199.
11
Gabcikovo-Nagymaros Project (Hung. v. Slov.) 1997 I.C.J. 7, 78 (Sept. 25).
12
Responsibility for Wrongful Acts, Responsibility of States for Internationally Wrongful Acts, art. 2, U.N. Doc.
A/56/49(Vol. I)/Corr.4., art. 4, comm. 3. (2001) [hereinafter Responsibility for Wrongful Acts]; See, e.g.,
Claims of Italian Nationals, UNRIAA, vol. XV (Sales No. 66.V.3.), pp. 399 (Chiessa claim), 401 (Sessarego
claim), 404 (Sanguinetti claim), 407 (Vercelli claim), 408 (Queirolo claim), 409 (Roggero claim) and 411
(Miglia claim); Salvador Commercial Company, ibid., vol. XV (Sales No. 66.V.3.), p.455, at p.477 (1902); and
Finnish Shipowners (Gr. Brit./Fin.), ibid., vol. III (Sales No. 1949.V.2., p.1479, at p.1501 (1934).”

4|Page
that is liable to create hazards to human health, to harm living resources and marine life, to
damage amenities or to interfere with other legitimate uses of the sea.13
In accordance with the provisions of this Convention Contracting Parties shall prohibit the
dumping of any wastes or other matter in whatever form or condition except as otherwise
specified below:14
(a) the dumping of wastes or other matter listed in Annex I (ANNEX I point 2- Mercury and
mercury compounds.) is prohibited;
(b) the dumping of wastes or other matter listed in Annex II requires a prior special permit;
(c) the dumping of all other wastes or matter requires a prior general permit.
Each Contracting Party shall designate an appropriate authority or authorities to:
(a) issue special permits which shall be required prior to, and for, the dumping of
matter listed in Annex II.15

The following substances and materials requiring special care are listed for the purposes of
article VI(1)(a). All Wastes containing significant amounts of the matters listed below:
Arsenic, beryllium, chromium, copper and their compounds, lead, nickel, vanadium, zinc,
organo silicon compounds, cyanides, fluorides, pesticides (and their by-products not covered
in Annex I.) and in the circumstances provided for in article V(2);
(b) issue general permits which shall be required prior to, and for, the dumping of all other
matter;
(c) keep records of the nature and quantities of all matter permitted to be dumped and the
location, time and method of dumping;
(d) monitor individually, or in collaboration with other Parties and competent international
organizations, the condition of the seas for the purposes of this Convention.
The Contracting Parties pledge themselves to promote, within the competent specialized
agencies and other international bodies, measures to protect the marine environment against
pollution caused by: wastes or other matter directly arising from, or related to the
exploration, exploitation and associated off-shore processing of sea-bed mineral resources.16

13
Article 1 of Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter
14
Article 4(1) of Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter
15
Article 6(1)(a) of Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other
Matter
16
Article 12 of Convention On The Prevention Of Marine Pollution By Dumping Of Wastes And Other Matter

5|Page
International environmental law establishes generally applicable objectives and principles for
environmentally conscientious behaviour among the states. The two main international
environmental instruments in this respect are the 1972 Stockholm Declaration on the Human
Environment,17 and its follow-up 20 years later the 1992 Rio Declaration on Environment and
Development.18 The ICJ has referred to the obligation of States to refrain from causing
significant environmental damage from their transboundary pollution, including atmospheric
pollution.19
States may be unwilling to enforce principles of corporate social responsibility because
unsavoury governments of host states may co-opt companies to collude with them against the
local people and the environment. Studies by the OECD and others indicate that multinational
enterprises involved in extractive industries, such as oil, gas and diamonds, are particularly
prone to such complicity with the host state.20 It would be an anomaly if it continued to be
accepted that companies, unlike other non-state actors, should have only minimal obligations
under international law. Why should individuals21 and armed opposition groups22 have
fundamental international legal obligations while companies that may be much more
powerful have practically none? It would appear that all companies and governments of good
will have a shared interest in creating a level playing field by addressing minimum
obligations on corporate social responsibility directly to companies.
That leaves the question whether by extending direct corporate obligations under
international law state obligations and state responsibility could somehow be undermined.
The intention of the drafters of the Norms obviously was that obligations of companies would
supplement and not replace the obligations of states. Just as individual responsibility under
international law has not replaced but coexists with state responsibility for the same
offences.23 Moreover, Principle 19 of the Norms contains a savings clause according to which
‘Nothing in these Norms shall be construed as diminishing, restricting, or adversely affecting
the human rights obligations of states’. This would be in line with the case law of the
supervisory bodies of human rights treaties. They have consistently taken the view by

17
(1972) 11 ILM 1416.
18
(1992) 31 ILM 874.
19
to ensure that activities within their jurisdiction and control respect the environment of other States or of areas
beyond national jurisdiction is now part of the corpus of international law relating to theenvironment.”
20
, Multinational Enterprises in Situations of Violent Conflict and Widespread Human Rights Abuses, OECD
Working Papers on International Investment, Number 2002/1, May 2002, available at www.oecd.org.
21
The crimes listed in Articles 6-8 of the Statute of the International Criminal Court.
22
Protocol II to the Geneva Conventions on international humanitarian law.
23
See André Nollkaemper, ‘Concurrence Between Individual Responsibility and State Responsibility in
International Law’, 52 ICLQ (2003) 615-640.

6|Page
privatizing state functions (e.g. prisons or security forces or the supply of drinking water) a
state does not absolve itself from its responsibility to ensure respect for human rights. 24
In the case at hand, Brezania has interlinked the three rivers and this has caused adverse
effects in Merovidea.25 Also there were several other damages caused by the acts of
Brezania.
A BBC report of Merovidea highlighted that how north-western province of Merovidea was
water deprived for many years and how the administration lacked empathy. Every summer
the Zastu River would dry up on the Merovedian side because of dams built by Brezania.
Also in the North-eastern province a first instance of mercury poisoning of Niramastu was
witnessed. Researchers discovered elevated levels of mercury, fluorine and selenium in the
waters of Niramastu. It was not difficult to ascertain the source of this pollution. The report
concluded that Brezanian metallurgical industry, now the largest in the world, were
contributing to mercury poisoning of the Niramastu. Brezanian research agencies, however,
could not independently verify the link between mercury poisoning and their industries.26
Thus, it is evident that Brezania has caused irreversible environmental damage to Merovidea
and must make reparations to Merovidea for all direct and indirect expenses incurred and
accruing as a result of its actions (and inactions) regarding environmental and economic
damage and the liability of Brezania in respect to environmental damage is co-extensive with
the corporations directly causing this damage.

24
Costello-Roberts v. United Kingdom, European Court of Human Rights, Series A vol. 48, para. 27.
25
Moot Problem ¶ 17
26
Moot Problem ¶ 12

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 3. Merovidea has a right to subject assets of Central Bank of Brezania to
enforcement proceedings.

Customary international law does not preclude host states from expropriating foreign
investments provided certain conditions are met. These conditions are: the taking of the
investment for a public purpose, as provided by law, in a non-discriminatory manner and with
compensation. Foreign assets and their use may be subjected to taxation, trade restrictions
involving licenses and quotas, or measures of devaluation. While special facts may alter
cases, in principle such measures are not unlawful and do not constitute expropriation.27
Similarly, according to Sornarajah28, non-discriminatory measures29 related to anti-trust,
consumer protection, securities, environmental protection, land planning are non-
compensable takings since they are regarded as essentials to the efficient functioning of the
State. “An uncompensated taking of an alien property or a deprivation of the use or
enjoyment of
property of an alien which results from the execution of tax laws; from a general change in
the value of currency; from the action of the competent authorities of the State in the
maintenance of public order, health or morality; or from the valid exercise of belligerent
rights or otherwise incidental to the normal operation of the laws of the State shall not be
considered wrongful”.30
The word penalty is equivocal, and if understood without qualification it comprises penalties
to the enforcement of which there can be no objection as for example one incorporated in a
commercial contract with one object of inducing a prompt performance of his contract by one
of his parties.31 The meaning of the word penalty is explained by the Privy Council in the

27
Ian Brownlie, “Public International Law”, Oxford University Press, 6th Edition, 2003 at 509.
28
M. Sornarajah, “The International Law on Foreign Investment” (1994) at 283, Cambridge University Press.
29
It is an accepted principle of customary international law that where economic injury results from a bona fide
non-discriminatory regulation within the police powers of the State, compensation is not required. A state
measure will be discriminatory if it results “in an actual injury to the alien …with the intention to harm the
aggrieved alien” to favour national companies. The Restatement Third recognises the non-discrimination rule:
“One test suggested for determining whether regulation and taxation program are intended to achieve
expropriation is whether they are applied only to alien enterprises” “Restatement of the Law Third, the Foreign
Relations of the United States,” American Law Institute ,Volume 1, 1987, Section 712. The Iran-US Claims
Tribunal recognised in the Amoco case that Iran owed compensation for expropriatory measures, and also
acknowledged the rule of non-discrimination. The Award specifically states that: “discrimination is widely
prohibited by customary international law in the field of expropriation,” although the Tribunal found no
discrimination in this case.
30
Article 10(5) of the Harvard Draft Convention on the International Responsibility of States for Injuries to
Aliens, by Sohn and Baxter.
31
Huntingon v Attrill [1893] AC 150 at 156

8|Page
case of Huntingon v Attrill32 that Penalty is limited to a fine or other exaction imposed by the
State for some violation of public order.33 Lord Denning MR has indicated34 that, in context
of recognition of foreign judgements, a judgement for exemplary damages is not be denied
recognition as being in respect of “a penalty”.35 It may well be, therefore, that a foreign law
as to exemplary damages will be applied here and will not be castigated with penal law. On
the other hand, there is a statutory prohibition on the enforcement of foreign judgements for
multiple damages,36 such as treble damages under USA anti-trust laws. These laws have been
described as penal.37 An attempt to enforce a foreign penalty indirectly is Banco de Vizcaya v
don Alfonso de Borbón y Austria38 where Lawrence J held that the plaintiffs were not in
reality inserting their own contractual rights as they originally existed, but the rights of the
Spanish Republic. Therefore their claim failed, since to countenance it would in effect be to
enforce an admittedly penal law for the republic.
In the case of A-G of New Zealand v Ortiz39 the claim was made by the attorney general on
behalf of the State, the cause of action concerned a public right – the preservation of historic
articles within New Zealand and vindication of the right was sought through forfeiture of
property without compensation.40 Lord Denning regarded the New Zealand statute as coming
within the category of a public law41 rather than penal law.42
In the case at hand, the Merovedian Superior Court while acting on a writ petition filed by a
citizen’s group “Minamata Sufferers” attached the assets of Central Bank of Brezania located
in Merovidea as a security against economic reparations. 43 The respondents humbly submit
before the Hon’ble court that Merovidea has all the rights to attach the assets of Central Bank
of Brezania as, because of the action of Brezania of interlinking the rivers Zastu, Ayastu and
Niramastu the water supply in Merovedia decreased and as the volume of water in Niramastu

32
[1893] AC 150
33
Schemmer v Property Resources Ltd [1975] Ch 273, [1974] 3 All ER 451
34
SA Consrtium General Textiles v Sun and Sand Agencies Ltd [1978] QB 279 at 299-300
35
The Council adopts a definition given by the U.S. Supreme Court in Wisconsin v. The Pelican Co., 127 U.S.
265 (1888).
36
Section 5, Protection of Trading Interests Act 1980.
37
British Airways Board v laker Airways Ltd [1984] QB 142 at 163 (Parker J), and in the court of Appeal at 201;
Paterson [1995] UBCLR 241.
38
[1935] 1 KB 140. A similar case is Frankfurther v WL Exner Ltd [1947] Ch 629. See also Ogden v Folliott
(1790) 3 Term Rep 726.
39
[1984] AC 1; Nott (1984) 33 ICLQ 203.
40
At 33-34 (Per Ackner LJ.)
41
At 20-24 A-G of New Zealand v Ortiz [1984] AC 1 at 31 (per Ackner LJ in the court of Appeal)
42
On appeal to the House of Lords, the decision of the Court of Appeal was upheld solely on the narrow point of
construction of the New Zealand statute. The Law Lords, at 45-49 (per Lord Brightman), having heard no
argument on the point relating to enforcement of a penal law, declined to express any opinion on the correctness
of obiter dicta on this matter in the court of Appeal.
43
Moot Preposition ¶ 18

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flowing in Merovidea decreased, the concentration of Mercury gradually started increasing in
Merovedian rivers. The number of people diagnosed with Minamata disease rose from 300 in
2010 to 7000 in 2013 and 25000 in 2015. These also added to an annual expense of $170
bn.44
By the above mentioned cases it is very clear that a country can attach the assets of other
country to seek compensation and the laws of the country seeking the compensation would be
considered as public law rather than penal law and such attachment would be valid. So, the
attachment of the assets of Central Bank of Brezania by the Merovedian Superior Court is
valid to seek compensation for the actions of Brezania which has caused huge loss of life and
property as well as economic loss.
Hence, the Hon’ble court should hold that Merovidea has a right to subject assets of Central
Bank of Brezania to enforcement proceedings.

44
Moot Preposition ¶ 17

10 | P a g e
 4. Merovidea has a right to put strict import controls on Brezanian
imports until its industries continue to cause environmental damage
to Merovidea and the same is within its rights being a member of
WTO.

WTO committee says that the most effective way to deal with international environmental
problems is through the environmental agreements. It says this approach complements the
WTO’s work in seeking internationally agreed solutions for trade problems. In other words,
using the provisions of an international environmental agreement is better than one country
trying on its own to change other countries’ environmental policies.45
The committee notes that actions taken to protect the environment and having an impact on
trade can play an important role in some environmental agreements, particularly when trade
is a direct cause of the environmental problems.
Economic science generally finds that an import restriction will reduce the national economic
interest of the country that imposes it. The protected domestic interests will be better off, but
the costs to other domestic interests will be larger.
That allowed46 import restrictions might provide an incentive against bad policies or practices
in the exporting country, policies that reduce the national economic interest there. Jan Tumlir,
once Chief Economist in the GATT Secretariat, often argued that without the stringent United
States law that almost automatically imposed countervailing duties, European governments
after WWII would have resorted to extensive subsidization and thereby set back the recovery
of European industry.
As a rule, resort to the adjudicating bodies has been associated with the notion of nullification
or impairment of treaty benefits, in the sense that the conduct allegedly incompatible with
WTO law must have an actual or potential adverse impact on the international trade of the
Member concerned. Already in the GATT system, a violation of the treaty obligations was
presumed to cause the nullification or impairment of the treaty benefits of the claimant. In a
leading case decided in 1962, the panel maintained that ‘there is normally a presumption that
a breach of the rules has an adverse impact on other Members ... and in such cases, it shall be

45
Shrimp Turtle and Dolphin-tuna case studies.
46
The GATT/WTO is an expression of the limits members have accepted on their sovereign right to regulate
their own trade, not of the “permission” a superior authority has extended. We use the word “allows” in this
sense.

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up to the Member against whom the complaints has been brought to rebut the charge’.47 In
1987, however, another panel noted that there was in the history of GATT not a single case in
which a Member had successfully rebutted such a presumption. From this, it deduced that
‘while the Contracting Parties had not explicitly decided whether the presumption that illegal
measures cause nullification or impairment could be rebutted, the presumption had in practice
operated as an irrefutable presumption’.48
It has been observed that behind the clumsy expression ‘irrefutable presumption’ lies the
attempt to turn the treaty language on its head since:
by stating that a prima facie case cannot be rebutted, it makes the presumption of
nullification or impairment derive ipso facto from a violation, thus almost discarding
the nullification or impairment concept in favour of a focus on whether or not a
violation or breach of obligation exists.49
In this deformed perspective the impact of the violation would become immaterial, as in the
case of indivisible obligations. Article 3(8) of the DSU definitively put the presumption on
the right track. It reads as follows:
In cases where there is an infringement of the obligations assumed under a covered
treaty, the action is considered as prima facie to constitute a case of nullification or
impairment. This means that there is normally a presumption that a breach of the rules
has an adverse impact on other Member parties to that covered agreement, and in such
cases, it shall be up to the Member against whom the complaint has been brought to
rebut the charge.
The rebuttable character of the presumption is intended to confine litigation to disputes in
which the trade interests of the complaining party are affected, and ultimately to protect the
respondent against claims from Members with no economic interests at stake. Yet, the notion
of nullification or impairment of treaty benefits has been linked to that of ‘adverse impact’ or
‘harm’.50 It has been accurately pointed out that Article 3(8) of the DSU:

47
Uruguay v. 15 Developed Countries. Recourse to Art. XXIII, 15 Nov. 1962, BISD (11th Suppl.) 95, at 99–100.
48
US – Taxes on Petroleum and Certain Imported Substances, 17 June 1987, BISD (34th Suppl.) 136, at para.
5.1.9.
49
J.H. Jackson, The Jurisprudence of GATT and the WTO (2000), at 176.
50
In Argentina – Definitive Anti-Dumping Measures on Imports of Ceramic Floor Tiles from Italy,
WT/DS189/R, 28 Sept. 2001, the panel noted that the presumption that benefits are nullified or impaired means
that there is a presumption of ‘harm’: at para. 6.105. In US – Anti-Dumping Act of 1916, 28 Aug. 2000, WT/
DS136/AB/R, at para 73, the Appellate Body recognized the right of Members under Art. 17(4) of the Anti-
Dumping Agreement ‘to seek redress when illegal action affects its economic operators’ (emphasis added). In
the case of provisional anti-dumping measures, such a right is limited to cases in which these measures have ‘a
significant impact’.

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 restates the long-agreed rule that the showing of adverse trade effects (‘nullification or
impairment of benefits’) required under GATT Article XXIII for one government to
complain another’s conduct will be presumed in cases where the defending
government has infringed its obligations under the relevant Uruguay Round
Agreement. The defending government may rebut this presumption, however, and
prove that the measure has not had an adverse effect on other members.51
In order to raise this presumption, the applicant must provide positive evidence52 and not
merely a general assertion53 that it is suffering from an adverse impact. Then the burden of
proof shifts to the respondent, which has to prove the contrary.54
The fact that the presumption established by Article 3(8) of the DSU has never been rebutted
demonstrates that Members have judiciously resorted to the DSB, as required by Article
3(7).55 WTO case law confirms the rebuttable nature of this presumption. In Guatemala –
Cement, for instance, the panel examined and rejected the argument advanced by Guatemala
that the alleged violation did not nullify and impair benefits accruing to Mexico.56
In the case at hand,
Merovidea revoked MFN status given to Brezania and put strict import controls over all
imports coming from Brezania and introduced a green cess @12% above all other taxes and
duties on account of environmental damage being sustained by Merovidea from action of
industries located in Brezania.57 Merovidea is justified in its actions as the actions of the

51
United States, Statement of Administrative Action, Understanding on Rules and Procedures Governing the
Settlement of Disputes, HR Doc. No. 316, 103rd Cong., 2nd Sess., Vol. 1, 1008–1022 (27 Sept. 1994),
reproduced in R. Bhala, International Trade Law: Theory and Practice (2nd edn., 2001), at 218, 220.
52
In Indonesia – Autos, supra note 28, at para. 14.154, the Panel had to examine ‘whether the EC and the US
have demonstrated by positive evidence that the measures in question have caused serious prejudice or, in the
case of the EC, have threatened to cause serious prejudice, to their interests within the meaning of Part III of the
SMC Agreement’. Similarly, in Mexico – Anti-Dumping Investigation of High Fructose Corn Syrup from the
US, WT/DS132/R, 28 Jan. 2000, at para. 7.26, the Panel stated that ‘it must be clear from the request that an
allegation of nullification or impairment is being made, and the request must explicitly indicate how benefits
accruing to the complaining Member are being nullified or impaired’.
53
Indonesia – Certain Measures Affecting the Automobile Industry, WT/DS55/R, Panel Report, 2 July 1998, at
para. 14.145.
54
In Brazil – Aircraft, supra note 49, at para. 3.46, the arbitrators noted that ‘if a measure violates a provision of
a covered agreement, the measures is considered prima facie to cause nullification or impairment. However, if
the defendant succeeds in rebutting the charge, no nullification or impairment will be found in spite of the
violation.’ In Argentina – Ceramic Tiles, supra note 53, at para. 6.105, the panel observed that it was up to the
respondent ‘to show that the failure to determine an individual dumping margin has not nullified or impaired
benefits accruing to the EC under the Agreement’.
55
The first sentence of this provision reads: ‘[b]efore bringing a case, a Member shall exercise its judgement as
to whether action under these procedures would be fruitful’. See Martha, ‘The Duty to Exercise Judgment on the
Fruitfulness of Actions in World Trade Law’, 35 JWT (2001) 1035.
56
Guatemala – Definitive Anti-Dumping Measures on Grey Portland Cement from Mexico, Panel Report, 17
Nov. 2000, WT/DS156/R, at paras 8.105 ff.
57
Moot Preposition ¶ 21

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industries located in Brezania have caused irreversible damages to Merovidea. It has also
negatively affected the GDP and economy of Merovidea. There was an economic loss of
more than $170 bn.58 Moreover the due to the actions of the industries of Brezania many
people of Brezania have been suffering from a disease called Minamata.59
Thus, Merovidea has all the rights to impose certain taxes on Brezania as it has suffered a lot
of damages due to the actions of the industries of Brezania and to recover the harms suffered
Merovidea has all rights to impose the taxes and since it has revoked the MFN status given to
Brezania the imposition of taxes is valid and Merovidea has a right to put strict import
controls on Brezanian imports until its industries continue to cause environmental damage to
Merovidea and the same is within its rights being a member of WTO.

58
Moot Preposition ¶ 17
59
Ibid.

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 5. Merovidea Has A Right To Conduct Nuclear Tests On Its Soil And Has Not
Violated Any Principle Of International Law

An ICJ advisory opinion on the legality of the use of nuclear weapons has been cited
frequently as an affirmation of the principles of international environmental law stated in the
Trail Smelter case. The General Assembly of the United Nations asked the Court to give an
advisory opinion on the legality of use of nuclear weapons.60 The Court rejected the argument
that the use of nuclear weapons infringed on the right to life as stated in the Covenant on
Civil and Political Rights. According to the Court, the arbitrary deprivation of life cannot be
judged by simply using the Covenant but by referring also to the law applicable in armed
conflict.61
The obligation not to cause trans boundary harm has been acknowledged as customary
international law.62 The United Nations General Assembly has taken bold steps in asking the
International Court of Justice to give its opinion on the legality of nuclear weapons. 63 The
Court must next address certain matters arising in relation to the formulation of the question
put it to by the General Assembly. The English text asks, “Is there a threat or use of nuclear
weapons in any circumstances permitted under international law?” The use of the word
"permitted" in the question put by the General Assembly was criticized before the Court by
certain States on the ground that this implied that the threat or the use of nuclear weapons
would only be permissible if authorization could be found in a treaty provision or in
customary international law. Such a starting point, those States submitted, was incompatible
with the very basis of international law, which rests upon the principles of sovereignty and
consent; accordingly, and contrary to what was implied by use of the word "permitted",

60
Legality of the Threat or Use of NuclearWeapons, (Advisory Opinion), July 8, 1996, (1996) ICJ Reports 226
[hereinafter Legality of Nuclear Weapons].
61
Para. 24–25, Legality of Nuclear Weapons.
62
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 226 (1996);
63
Legality of the Threat or Use of NuclearWeapons, (Advisory Opinion), July 8, 1996, (1996) ICJ Reports 226
[hereinafter Legality of Nuclear Weapons]. TheWorld Health Organization (WHO) asked also for the ICJ’s
advisory opinion with regard to the legality of the use of nuclear weapons in cases of armed conflict.
TheWHOasked for an advisory opinion because of its mandate as an organization concerned with health and,
consequently, with the adverse effects of nuclear weapons on human health and the environment. The Court
held that a specialized agency, such as WHO, could ask for an advisory opinion if three conditions are satisfied:
(1) the agency is authorized under the Charter to ask for opinions; (2) the opinion requested is on a legal
question; (3) the question arose under the scope of the activities of the requesting agency. The Court concluded
that in the case of the WHO the first two conditions were satisfied. But the latter condition was not satisfied
because the competence of the WHO to deal with the effects of the use of nuclear weapons on health “is not
dependent on the legality of the acts that caused them.” See Paras. 20–26, Legality of the Threat or Use of
Nuclear Weapons (Advisory Opinion), July 8, 1996, (1996) ICJ Reports 66.

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States are free to threaten or use nuclear weapons unless it can be shown that they are bound
not to do so by reference to a prohibition in either treaty law or customary international law.
Support for this contention was found in dicta of the Permanent Court of International Justice
in the
"Lotus" case that "restrictions upon the independence of States cannot . . . be presumed" and
that international law leaves to States "a wide measure of discretion which is only limited in
certain cases by prohibitive rules"64 that “in International law there are no rules as may be
accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a
sovereign State can be limited.”65
The 1997 Protocol and the CSC enhance the definition of “nuclear damage” by explicitly
identifying the types of damage that must be compensated. In addition to personal injury and
property damage, which are included in the existing definition, the enhanced definition
includes five categories of damage relating to impairment of the environment, preventive
measures, and economic loss. The definition makes it clear that these additional categories
are covered to the extent determined by the law of the competent court. The enhanced
definition thus provides certainty that the concept of nuclear damage includes costs of
reinstatement of impaired environment, preventive measures, and certain economic loss,
while recognizing that the forms and content of compensation is best left to the national law
of the country whose courts have jurisdiction over a particular nuclear incident. "Nuclear
Damage" means:66
(i) loss of life or personal injury;
(ii) loss of or damage to property; and each of the following to the extent determined
by the law of the competent court:
(iii) economic loss arising from loss or damage referred to in sub-paragraph (i) or (ii),
insofar as not included in those sub-paragraphs, if incurred by a person entitled to
claim in respect of such loss or damage;
(iv) the costs of measures of reinstatement of impaired environment, unless such
impairment is insignificant, if such measures are actually taken or to be taken, and
insofar as not included in sub-paragraph (ii);

64
(P.C.I.J., Series A, No. IO, pp. 18 and 19). Reliance was also placed on the dictum of the present Court in the
case concerning Military and Pavamilitary Activities in and against Nicaragua (Nicaragua v. United States of
America
65
(1. C.J. Reports 1986, p. 135, para. 269).
66
Article 1(f) of Convention on Supplementary Compensation for Nuclear Damage

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 (v) loss of income deriving from an economic interest in any use or enjoyment of the
environment, incurred as a result of a significant impairment of that environment,
and insofar as not included in sub-paragraph (ii);
(vi) the costs of preventive measures, and further loss or damage caused by such
measures;
(vii) any other economic loss, other than any caused by the impairment of the
environment, if permitted by the general law on civil liability of the competent
court, in the case of sub-paragraphs (i) to (v) and (vii) above, to the extent that the
loss or damage arises out of or results from ionizing radiation emitted by any
source of radiation inside a nuclear installation, or emitted from nuclear fuel or
radioactive products or waste in, or of nuclear material coming from, originating
in, or sent to, a nuclear installation, whether so arising from the radioactive
properties of such matter, or from a combination of radioactive properties with
toxic, explosive or other hazardous properties of such matter.
"Measures of reinstatement" means any reasonable measures which have been approved by
the competent authorities of the State where the measures were taken, and which aim to
reinstate or restore damaged or destroyed components of the environment, or to introduce,
where reasonable, the equivalent of these components into the environment. The law of the
State where the damage is suffered shall determine who is entitled to take such measures.67
"Nuclear incident" means any occurrence or series of occurrences having the same origin
which causes nuclear damage or, but only with respect to preventive measures, creates a
grave and imminent threat of causing such damage.68
In the present case Merovidea has just conducted several nuclear tests in April 2017.69 And
every country has a right to conduct nuclear tests on its soil and by doing so, a country does
not violate the principles of International Law.

67
Article 1(g) of Convention on Supplementary Compensation for Nuclear Damage
68
Article 1(i) of Convention on Supplementary Compensation for Nuclear Damage
69
Moot Problem ¶ 23

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 6. Merovidea has sole right over the creek of Tenling as per historical
evidence.

According to Merovidea, in the 13th century, entire creek belonged to the ruling clan of
Merovidea and only fishing rights were shared as a gesture of magnanimity with the tribes on
the other side of the creek which forms part of the present-day Brezania.70 Watercourse States
shall, individually and, where appropriate, jointly, prevent, reduce and control the pollution
of an international watercourse that may cause significant harm to other watercourse States or
to their environment, including harm to human health or safety, to the use of the waters for
any beneficial purpose or to the living resources of the watercourse.
Watercourse States shall, individually and, where appropriate, jointly, protect and preserve
the ecosystems of international watercourses.71
Watercourse States shall take steps to harmonize their policies in this connection.72
Watercourse States shall, at the request of any of them, consult with a view to arriving at
mutually agreeable measures and methods to prevent, reduce and control pollution of an
international watercourse, such as:73
a. Setting joint water quality objectives and criteria;
b. Establishing techniques and practices to address pollution from point and non-point
sources;
c. Establishing lists of substances the introduction of which into the waters of an
international watercourse is to be prohibited, limited, investigated or monitored.
But in the case at hand Brezania has violated the provisions of the convention firstly by
allowing BrezOil, to explore and exploit the reserves found in the creek of Tenling. 74 Then it
was claimed by Merovidea that entire creek belonged to it from the 13th Century.75
Also the actions of Brezania has made it very clear that it is least interested in the value and
benefits of the creek of Tenling to the environment as it at once allowed its exploitation
without even having substantial evidence that it actually had reserves of hydrocarbons. Thus

70
Moot Preposition ¶ 11
71
Article 20 of the Convention on the Law of the Non-navigational Uses of International Watercourses1997
Adopted by the General Assembly of the United Nations on 21 May 1997.
72
Article 21(2) of the Convention on the Law of the Non-navigational Uses of International Watercourses1997
Adopted by the General Assembly of the United Nations on 21 May 1997.
73
Article 21(3) of the Convention on the Law of the Non-navigational Uses of International Watercourses1997
Adopted by the General Assembly of the United Nations on 21 May 1997.
74
Moot preposition ¶ 10
75
Ibid. Supra note 1

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the claim of Merovidea should be considered and the Hon’ble court should hold that
Merovidea has sole right over the Creek of Tenling as per the historical evidence and also as
per the present actions of both the countries.

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 PRAYER FOR RELIEF

Wherefore, in the lights of issues raised, arguments advanced, reasons given and authorities
cited, this Hon’ble Court may be pleased to:
7. HOLD that Brezania has violated the “Treaty of Equity” and the “Uba Agreement”
governing the equitable sharing of water and by doing this Brezania has violated the
right to water of Merovedian people.
8. HOLD, that Brezania has caused irreversible environmental damage to Merovidea
and must make reparations to Merovidea for all direct and indirect expenses incurred
and accruing as a result of its actions (and inactions) regarding environmental and
economic damage and the liability of Brezania in respect to environmental damage is
co-extensive with the corporations directly causing this damage.
9. HOLD, that Merovidea has a right to subject assets of Central Bank of Brezania to
enforcement proceedings.
10. HOLD, that Merovidea has right to put strict import controls on Brezanian imports
until its industries continue to cause environmental damage to Merovidea and the
same is within its rights being a member of WTO.
11. HOLD, that Merovidea has a right to conduct nuclear tests on its soil and has not
violated any principle of international law.
12. HOLD, that Merovidea has sole right over the Creek of Tenling as per historical
evidence.
And any other relief that this Hon’ble Court may be pleased to grant in the interests of justice,
equity and good conscience.

FOR WHICH THE RESPONDENTS SHALL FOREVER PRAY

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSELS FOR RESPONDENTS

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