254A

254A
THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS
THE 2019 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION
CASE CONCERNING THE KAYLEFF YAK
_______________________________________________________
THE STATE OF AUROK
(APPLICANT)
V.
THE REPUBLIC OF RAKKAB
(RESPONDENT)
_______________________________________________________
MEMORIAL FOR THE APPLICANT
2019
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. i

INDEX OF AUTHORITIES ....................................................................................................... iv
QUESTIONS PRESENTED ...................................................................................................... xv
STATEMENT OF FACTS ........................................................................................................ xvi
SUMMARY OF PLEADINGS ................................................................................................. xxi
PLEADINGS ................................................................................................................................. 1
I.RAKKAB IS RESPONSIBLE FOR THE INTERNATIONALLY WRONGFUL ACTS
DESCRIBED IN CLAIM (II)-(IV), infra, BECAUSE DORTA’S ACTIONS ARE
ATTRIBUTABLE TO RAKKAB, OR IN THE ALTERNATIVE, RAKKAB IS
RESPONSIBLE FOR ITS OWN FAILURE TO PREVENT DORTA FROM
COMMITTING THOSE WRONGFUL ACTS ......................................................................... 1
A. DORTA’s harvest of Yak and commercialization of Gallvectra are attributable to
Rakkab under these alternative grounds ................................................................................ 1
1. DORTA is a de facto state organ of Rakkab .................................................................... 2
2. DORTA’s harvest of Yak and commercialization of Gallvectra are done in exercise of
governmental authority ............................................................................................................ 3
3. DORTA’s harvest of Yak and commercialization of Gallvectra are done under
Rakkab’s control and direction ................................................................................................ 4
a. Rakkab has general control over DORTA .................................................................... 4
b. Rakkab specifically controls DORTA’s harvest of Yak .............................................. 5
c. Rakkab specifically directs the commercialization of Gallvectra ................................ 5
B. Alternatively, Rakkab is responsible for DORTA’s actions described, infra,
because it has failed to prevent the harvest of Yak ................................................................ 6
1. Rakkab could reasonably foresee the consequences of DORTA’s harvest of Yak ......... 7
a. Rakkab could reasonably foresee the environmental damage caused by the 2016-2017
harvest of Yak ...................................................................................................................... 7
b. Rakkab could reasonably foresee the detriment towards the Aurokans’ culture and
religion caused by the 2016-2017 harvest of Yak ............................................................... 8
c. Rakkab could reasonably foresee the misappropriation and exploitation of Aurokan
traditional knowledge caused by the harvest of Yak ........................................................... 8
i
2. Rakkab has failed to take necessary measures to prevent the consequences of DORTA’s
harvest of Yak .......................................................................................................................... 9
a. Rakkab has failed to conduct adequate and timely impact assessment ........................ 9
b. Rakkab has failed to exercise adequate oversight towards DORTA’s harvest of Yak
10
II.THE HARVESTING OF THE YAK IN RAKKAB VIOLATES RAKKAB’S
INTERNATIONAL OBLIGATIONS RELATING TO THE PROTECTION OF
ENDANGERED SPECIES AND THE ENVIRONMENT, INCLUDING THOSE UNDER
RELEVANT CONVENTIONS, AND RAKKAB IS OBLIGATED TO END YAK
HARVESTING ON ITS TERRITORY .................................................................................... 12
A. The harvest of Yak violates the customary obligation of equitable and reasonable
usage of shared natural resources.......................................................................................... 12
1. The harvest of Yak does not take into account the Yak’s sustainability........................ 13
2. The harvest of Yak does not take into account Aurokan interests ................................. 14
B. The harvest of Yak causes significant transboundary harm in Aurok ................... 15
1. The harvest of Yak causes transboundary damage ........................................................ 15
2. The declining population of Yak constitutes significant damage .................................. 16
C. The harvest of Yak in Rakkab violates the Convention on the Conservation of
Migratory Species of Wild Animals (“CMS”) ...................................................................... 17
1. The harvest of Yak is not conducted for a scientific purpose ........................................ 17
2. The harvest of Yak is not conducted under an extraordinary circumstance. ................. 18
D. Thus, Rakkab shall cease the harvest of Yak within its territory............................ 19
III.THE HARVESTING OF THE YAK IN RAKKAB VIOLATES THE CULTURAL
AND RELIGIOUS RIGHTS OF AUROKANS, AND RAKKAB MUST PROHIBIT SUCH
HUNTING FORTHWITH ......................................................................................................... 20
A. The harvest of Yak violates the Aurokans’ cultural and religious rights under the
ICESCR and ICCPR ............................................................................................................... 20
1. The ICESCR and ICCPR are extraterritorially applicable to the consequences of the
harvest of Yak suffered by Aurokans .................................................................................... 20
2. The Aurokan practices relating to Yak constitute a manifestation of Aurokan cultural
life and religious belief .......................................................................................................... 21
3. DORTA’s harvest of Yak restricts the Aurokans’ rights to culture and religion ........... 22
4. The restrictions towards Aurokans’ rights to culture and religion are unjustifiable under
Article 4 of the ICESCR and 18(3) of the ICCPR ................................................................. 23
ii
a. The harvest of Yak lacks legitimate purpose.............................................................. 23
b. The harvest of Yak is unnecessary ............................................................................. 25
c. The harvest of Yak is disproportionate....................................................................... 25
B. DORTA’s harvest of Yak without sufficient consultation with the Aurokans
violates Article 7(1) of the Indingenous Peoples’ Convention ............................................. 26
C. Rakkab shall prohibit DORTA’s harvest of Yak forthwith ..................................... 27
IV.RAKKAB MUST PAY AUROK A PORTION OF THE PROFITS REALIZED FROM
THE SALES OF GALLVECTRA, BECAUSE THE APPROPRIATION AND
EXPLOITATION OF TRADITIONAL KNOWLEDGE BELONGING TO THE
AUROKAN PEOPLE WITHOUT COMPENSATION IS INCONSISTENT WITH
INTERNATIONAL LAW .......................................................................................................... 28
A. DORTA’s use of Aurokan traditional knowledge violates Aurokans’ indigenous
property rights under customary international law ............................................................ 28
B. DORTA’s use of Aurokan traditional knowledge associated with genetic resources
violates Articles 7 and 5(5) of the Nagoya Protocol.............................................................. 30
1. The access of TKGR through harvest of Yak gallbladder violates Article 7 of Nagoya
Protocol .................................................................................................................................. 30
a. The harvest of Yak constitutes access of TKGR ........................................................ 31
b. The harvest of Yak is conducted without the PIC of the Aurokans ........................... 31
c. The harvest of Yak is not preceded by sufficient negotiation with the Aurokans...... 32
d. Rakkab cannot preclude its wrongfulness by relying on the absence of access
regulation in Aurok and Rakkab ........................................................................................ 33
2. The utilization of TKGR violates Article 5(5) of the Nagoya Protocol ......................... 34
a. DORTA’s research activities constitutes utilization of TKGR .................................. 34
b. DORTA’s manufacturing of Gallvectra constitutes utilization of TKGR .................. 35
C. Commercialization of Gallvectra constitutes unfair competition that violates
Article 10bis of Paris Convention .......................................................................................... 36
D. In any event, commercialization of Gallvectra constitutes unjust enrichment ...... 37
E. Consequently, Rakkab shall compensate the Aurokans through profits realized
from sales of Gallvectra .......................................................................................................... 38
PRAYER FOR RELIEF............................................................................................................. 39
iii
INDEX OF AUTHORITIES
TREATIES & CONVENTIONS
African Convention on the Conservation of Nature and Natural Resources, 1001 UNTS 3, UN
Reg No I-14689, CAB/LEG/24 ............................................................................................ 12
ASEAN Agreement on the Conservation of Nature and Natural Resources, 9 July 1985 ....... 12
Convention for the Conservation of Antarctic Seals, 1 June 1972, 1080 UNTS 175 .............. 11
Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 69 ........................... 6, 32, 34
Convention on the Conservation of Migratory Species, 23 June 1979, 1651 U.N.T.S. 3336, 15,
17
Convention on Wetlands of International Importance especially as Waterfowl Habitat, 17
February 1976, 996 UNTS 245 ............................................................................................ 11
Indigenous and Tribal Peoples Convention (No. 169), 5 September 1991, 1650 U.N.T.S 3836,
19, 25
Interim Convention between the United States of America, Canada, Japan and the Union of
Soviet Socialist Republics on Conservation of North Pacific Fur Seals, 9 February 1957, 4546
UNTS 105 ............................................................................................................................ 11
International Covenant on Civil and Political Rights, 19 December 1996, 999 U.N.T.S 1716, 22
International Covenant on Economic, Social and Cultural Rights, 16 December 1996, 993
U.N.T.S 3 ......................................................................................................................... 6, 22
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits
Arising from their Utilization to the Convention on Biological Diversity, 29 October 2010,
CBD Decision 10/1, UN Doc. UNEP/CBD/COP/10/27 ................................ 6, 29, 30, 32, 33
Paris Convention for the Protection of Industrial Property, 26 April 1970, 828 U.N.T.S. 3056, 34
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 ..................... 17
UNITED NATIONS DOCUMENTS
ACCOBAMS, 6th Mtg, Taking of Cetaceans, Dolphinaria, and Quasi-Dolphinaria: A Legal

Analysis within the Framework of ACCOBAMS, ACCOBAMS-MOP6/2016/Inf21 (2016)17
iv
Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/49
(Vol.I)/Corr.4 (2001) ................................................................................................ 1, 2, 6, 17
Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the Benefits
Arising out of their Utilization, CBD COP 6 Decision VI/24, UNEP/CBD/COP/6/6, 31
October 2001 ........................................................................................................................ 31
CESCR, General Comment No.21: Right to Culture, UN Doc. E/C/GC/21 ......... 20, 22, 23, 24
CESCR, The Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984)
........................................................................................................................................ 22, 23
Charter of Economic Rights and Duties of States, UN Doc.A/Res/29/3281 (1974) ............... 12
Chusei Yamada, Second Report on Shared Natural Resources: Transboundary Groundwaters,
UN Doc.A/CN.4/539 (2004), Annex IV .............................................................................. 11
Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.24: on
State obligations under the ICESCR in Context of Business Activities,, UN doc. E/C.12/GC/24
.............................................................................................................................................. 19
Conference of the Parties to the Convention on Biological Diversity at its 2nd Meeting, Jakarta,
Decision II/7, Consideration of Articles 6 and 8 of the Convention, UNEP/CBD/COP/2/1912
Cooperation in the Field of the Environment concerning Natural Resources Shared by Two or
More States, UN Doc.A/Res/34/186 (1979) ........................................................................ 12
Declaration of the United Nations Conference on the Human Environment, U.N. Doc.
A/Conf.48/14 , 16 June 1972,11 ILM 1416 ......................................................................... 12
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with
commentaries (2001), UN Doc.A/56/10 (2001)..................................................................... 9
Draft Articles on Responsibility of States for Internationally Wrongful Act with Commentaries,
UN Doc. A/56/10 (2001) ................................................................................................ 1, 3, 4
Draft Articles on the Law of Transboundary Aquifers with Commentaries, UN Doc.A/63/10
(2008), General Commentary............................................................................................... 11
Draft Principles and Guidelines on Elimination of Discrimination against Persons Affected by
Leprosy and their Family Members, U.N. Doc. A/HRC/AC/3/CRP.2 ................................ 23
v
Human Rights Council Expert Mechanism on the Rights of Indigenous Peoples, Draft Study on
FPIC: A Human Rights Based Approach, Study of the Expert Mechanism on the Rights of
Indigenous Peoples, 11th Sess, A/HRC/EMRIP/2018/CRP.1 (2018) ................................. 31
Human Rights Council, Follow-up Report on Indigenous Peoples and the Right to Participate in
Decision-Making, with a Focus on Extractive Industries, A/HRC/EMRIP/2012/2 ............ 25
Human Rights Council, John Ruggie, Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy” Framework,
A/HRC/17/31(2011) ............................................................................................................... 9
José Martínez Cobo, Study of the problem of discrimination against indigenous populations,
Volume 3, Report of Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection and Minorities E/CN.4/Sub.2/1986/7/Add.4....................... 19
Julio Barboza, ‘‘Sixth Report on International Liability for Injurious Consequences Arising out
of Acts not Prohibited by International Law,” March 15, 1990, UN Doc. A/CN.4/428 (Article
2(b) and (e)), reproduced in Yearbook of the ILC (1990), vol. II (Part One) ...................... 15
Report of the Committee Set Up to Examine the Representation Alleging Non-Observance by
Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), the Central
Unitary Workers' Union (CUT) and the Colombian Medical Trade Union Association, ILO
Doc. GB.282/14/3 (Nov. 14, 2001) (Embera Report) .......................................................... 26
Rights of Indigenous People, UNGAOR, 72nd Sess, UN Doc A/RES/72/155 (2018) ............. 28
Rights of Indingenous Peoples, UNGAOR, 71st Sess, UN Doc A/RES/71/178 (2017) .......... 28
UN Human Rights Committee (HRC), General Comment No.31[80]: Nature of the General
Legal Obligation on State Parties to the Covenant ............................................................. 20
UNHRC, CCPR General Comment No.22: Article 18 (Freedom of Thought, Conscience, or
Religion), U.N. Doc. CCPR/C/21/Rev.1/Add.4 ............................................................. 20, 23
UNHRC, Communication No. 547/1993, Apirana Mahuika et al v New Zealand, U.N.
Doc. CCPR/C/70/D/547/1993 (2000) ............................................................................ 20, 21
United International Bureau for the Protection of Intellectual Property, Guide to the Application
of the Paris Convention for the Protection of Industrial Property, WIPO Publication No.611
.............................................................................................................................................. 35
United Nations Declaration on the Rights of Indigenous People, UNGAOR, 61st Sess, Supp
No.49, U.N. Doc. A/RES/61/295 (2007) ................................................................... 6, 28, 31
vi
WIPO, WIPO Report on Fact-finding Missions on Intellectual Property and Traditional
Knowledge: Intellectual Property Needs and Expectation of Traditional Knowledge Holders,
(2001) ................................................................................................................................... 27
INTERNATIONAL COURT OF JUSTICE CASES
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), [2007], ICJ Rep 43 .................. 2, 6, 8
Case Concerning Application of the International Convention on the Elimination of All Forms of
Racial Discrimination (Georgia v Russian Federation), [2011] ICJ Rep 70 ...................... 31
Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep 712,
13
Case Relating to the Territorial Jurisdiction of the International Commission of the River Oder
(Czech., Den., Fr., Ger., Swed., UK/Pol.), 1929 P.C.I.J. (ser. A) No. 23 ............................ 13
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment, [2015] ICJ Rep 665............................................................................................... 9
Chorzow Factory (Germany v Poland) (1928), PCIJ (Ser A) No 17....................................... 37
Corfu Channel (United Kingdom and Northern Ireland v. Albania), Judgment of Merits, [1949]
ICJ Rep 4 .............................................................................................................................. 14
Fisheries Jurisdiction Cases (United Kingdom v. Iceland, FRG v. Iceland), Merits, Judgment,
[1974], ICJ Rep 3 ................................................................................................................. 13
Legal Consequences For States of the Continued Presence of South Africa in Namibia (South
West Africa) Notwithstanding Security Council Resolution 276 , Advisory Opinion, [1971] ICJ
Rep 16 .................................................................................................................................. 20
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ 226 ........... 14
Pulp Mills in the River Uruguay (Argentina v. Uruguay), [2010] ICJ Rep 18...................... 6, 9
Whaling in the Antarctic (Australia and New Zealand (intervening) v. Japan), [2014] ICJ GL No
148 ........................................................................................................................................ 16
INTERNATIONAL & ARBITRATION CASES
African Commission on Human and Peoples' Rights v. Republic of Kenya, African Court of
Human and People's Rights, No. 006/2012 .......................................................................... 21
vii
Ampal-American Israel Corporation and others v. Arab Republic of Egypt, [2017], Decision on
Liabilities, ICSID Case No. ARB/12/11 ................................................................................ 2
Award between the United States and the United Kingdom relating to the rights of jurisdiction of
United States in the Bering’s sea and the preservation of fur seals (United States of America v.
United Kingdom), [1893] UNRIAA 263 ............................................................................. 12
Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v. Islamic Republic of Pakistan, [2009], Award,
ICSID Case No. ARB/03/29 .............................................................................................. 4, 5
Case of the Pueblo Bello Massacre v. Colombia (2006), Judgement, Inter-Am Ct HR (Ser C) No.
140 .......................................................................................................................................... 6
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of
Endorois Welfare Group) v Republic of Kenya (2009), African Court of Human and People's
Rights, No. 276/03 ......................................................................................................... 20, 25
Consorzio Groupement L.E.S.I.-DIPENTA v. Algeria, [2005], Award, ICSID Case No.
ARB/03/08 ............................................................................................................................. 4
Constitutional Rights Project and Others v. Nigeria, African Court of Human and People's
Rights, Communication No. 140/94-141/94-45/95 .............................................................. 25
Delfi v. Estonia, No. 64569/09, [2015] ECHR 1 ..................................................................... 24
Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka, [2012], Award, ICSID Case
No. ARB/09/02....................................................................................................................... 2
EDF (Services) Limited v. Romania, [2009], Award, ICSID Case No. ARB/05/13 ................. 5
Electrabel S.A. v. Republic of Hungary, [2012] Decision on Jurisdiction, Applicable Law and
Liability, ICSID Case No. ARB/07/19................................................................................... 3
Emilio Agustin Maffezini v. The Kingdom of Spain, [2000], Decision of the Tribunal on
Objections to Jurisdiction, ICSID Case No. ARB/97/7 ......................................................... 1
Environment and Human Rights (colombia) (2017), Advisory Opinion OC-32/17, Inter-Am Ct
HR (Ser A) ........................................................................................................................... 20
Eureko B.V. v. Republic of Poland, [2005], Partial Award, Ad Hoc arbitration ...................... 2
Handyside v United Kindgom (1976), ECHR (Ser A) ............................................................. 24
Ioannis Kardassopoulos and Ron Fuchs v. The Republic of Georgia, [2010], Award, ICSID Case
No. ARB/05/18 and ARB/07/15 ............................................................................................ 4
Lake Lanoux Arbitration (France v. Spain), [1957] 12 UNRIAA 281 .............................. 12, 13
viii
Ocalan v. Turkey, No. 24069/03, [2014], European Court of Human Rights (ECHR) ........... 20
Salini Costruttori S.p.A. and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan, [2004],
Decision on Jurisdiction, ICSID Case No. ARB/02/13 ......................................................... 3
Saluka Investments B.V. v The Czech Republic, [2006], Partial Award, PCA, ICGJ 268 ....... 36
Sea-Land Services Inc v Iran, [1984], Award, Iran-US Claims Tribunal Case No. 33 ........... 36
Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/52, U.N. Doc. Supp. No. 40
(A/36/40, (1981) ................................................................................................................... 20
The Human Rights Chamber for Bosnia and Herzegovina, The Islamic Community in Bosnia
Herzegovina v. The Republika Srpska, Case No. CH/96/29 ................................................ 21
Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905, 1907 (1939, 1941) ............. 6, 13, 14
UNHRC, Communication No. 1155/2003, Leirvag v Norway, U.N. Doc.
CCPR/C/82/D/1155/2003 .................................................................................................... 21
UNHRC, Communication No. 1457/2006, Angela Poma Poma v. Peru, U.N. Doc.
CCPR/C/95/D/1457/2006 .................................................................................................... 21
UNHRC, Communication No. 511/1992, Lansman et al v. Finland....................................... 21
UNHRC, Communication No.1321-22/2004, Yeo-Bum Yoon and Myung-Jin Choi v Republic of
Korea, UN. Doc. CCPR/C/88/D/1321-1322/2004 ............................................................... 24
UNHRC, Communication No.1876/ 2000, Singh v. France, U.N. Doc.
CCPR/C/102/D/1876/2009 .................................................................................................. 22
UNHRC, Communication No.208/1986, Karnel Singh Bhinder v. Canada, U.N. Doc.
CCPR/C/37/D/208/1986 ...................................................................................................... 24
MUNICIPAL LAWS & CASES
Andean Community, Decision No.391 Establishing the Common Regime on Access to Genetic
Resources, 1996 ................................................................................................................... 30
Australia, Environment Protection and Biodiversity Conservation Regulation, 2000 ............ 30
Australia, Environment Protection and Biodiversity Conservation Regulations of 2000 ....... 30
Austria, Allgemeines Burgeliches Gesetzbuch ......................................................................... 36
Bolivia, Law No.3760 of 2007 on the Rights of Indigenous People ........................................ 28
Bolivia, Law of Ancestral Medicine of 2013 ........................................................................... 30
ix
Brazil, Law No. 13.123 on Access and Benefit Sharing of Genetic Resources and Associated
Traditional Knowledge......................................................................................................... 34
Denmark, Act No. 1375, 2012 .................................................................................................. 34
Ecuador, Decreto 905, 2011 .................................................................................................... 30
France, Civil Code ................................................................................................................... 36
German Civil Code .................................................................................................................. 36
India, Biological Diversity Act 2002, 18/2003................................................................... 29, 30
International New Service v. Associated Press, 248 US 215 (1918) ....................................... 35
L’oreal S.A. v. Bellure N.V. and others, [2007], EWCA Civ 968. .......................................... 35
Mabo and others v Queensland, [1992] HCA 23 .................................................................... 28
Malaysia, Law on Access and Benefit Sharing, 2017 .............................................................. 34
Moore v. Regents of University of California et al, 51 Cal. 3d 120 (1990). ............................ 36
Netherlands, Burgerlijk Wetboek ............................................................................................. 36
Panama, Law on Free, Prior and Informed Consent of Indigenous Peoples of 2016 .............. 30
Philippines, Indigenous Peoples Rights Act of 1997 ............................................................... 28
Portugal, Decree-Law 118/2002 .............................................................................................. 28
Switzerland, Swcheizerishes Obligationenrecht ...................................................................... 36
Switzerland, The Nature and Cultural Heritage Act ............................................................... 30
Thailand, Act on Protection and Promotion of Traditional Thai Medicinal Intelligence ....... 28
BOOKS
Albert Badia, “State Responsibility for State Enterprises Action in Investment Law”, in Piercing
the Veil of State Enterprises in InternationalArbitration (Wolters Kluwer, 2014) ............... 3
David Taylor, “The Pharmaceutical Industry and the Future of Drug Development”, in R. E.
Hester and R. M. Harrison, (eds), Issues in Environmental Science and Technology, (Royal
Society of Chemistry, 2015)................................................................................................. 33
Elisa Morgera, Elsa Tsioumani & Matthias Buck, Unraveling the Nagoya Protocol: Legal
Studies on Access and Benefit-Sharing,Volume 2, (Leiden: Koninklijke Brill NV, 2010) . 30
Graham Dutfield, Protecting Traditional Knolwedge Pathways to the Future, (Switzerland:
International Centre for Trade and Sustainable Development, 2006) .................................. 35
x
Ian Brownlie, System of the Law of Nations State: Responsibility Part I/I Brownlie, (New York:
Oxford University Press, 1983) .............................................................................................. 3
James Crawford, Alain Pellet, and Simon Olleson, The Law of International Responsibility,
(Oxford: Oxford University Press, 2010) ............................................................................... 2
James Crawford, The International Law Commission’s Articles on State Responsibility:
Introduction, Text and Commentaries, (Cambridge: Cambridge University Press, 2002) .... 1
Julio Barboza, The Environment, Risk, and Liability in International Law, (Leiden: Martinus
Nijhoff Publishers, 2011) ..................................................................................................... 15
Monique van Vegchel, Implementation of Nagoya Protocol: A Comparison between the
Netherlands, Belgium and Germany, (V.O. Patents and Trademarks, 2018) ...................... 33
Nele Matz-Lück, “The Benefits of Positivism: The ILC’s Contribution to the Peaceful Sharing of
Transboundary Groundwater” in Georg Nolte, (eds), Peace through International Law
(Dordrecht, Heidelberg, London, New York: Springer, 2009) ............................................ 11
Richard Gardiner, Treaty Interpretation (New York: Oxford University Press) .................... 17
Shalini Bhutani & Kanchi Kohli, Litigating India’s Biological Diversity Act: A Study of Legal
Cases, (Foundation for Ecological Security: India, 2016) ................................................... 34
Xue Han Qin, Transboundary Damage in International Law, (New York: Cambridge University
Press, 2003) .......................................................................................................................... 14
JOURNALS
Aaron Schwabach, “The Sandoz Spill: The Failure of International Law to Protect the Rhine
from Pollution”, (1989), 16 Ecology L.Q. 443 .................................................................... 10
Alexander Kees, “Responsibility of States for Private Actors,” in R.Wolfrum, Max Planck
Encyclopedia of Public International Law, (Germany: Max Planck Foundation, March 2011)
................................................................................................................................................ 6
Ana T. Vohryzek-Griest, “Unjust Enrichment Unjustly Ignored: Opportunities and Pitfalls in
Bringing Unjust Enrichments Claims under ICSID”, (2008) 31:3 Loy. L.A. Int'l & Comp. L.
Rev ....................................................................................................................................... 36
Arie Trouwbourst, (2014), “Aussie Jaws and International Laws: The Australian Shark Cull and
the Convention on Migratory Species”, 2 Cornell Int’l L.J. Online .................................... 17
xi
Brigit Toebes, “Human Rights and Public Health: Towards a Balanced Relationship” (2015)
19:4 IJHR 488 ...................................................................................................................... 22
Edson Beas Jr. Rodrigues, “Using the TRIPS Agreement’s Unfair Competition Clause to Curb
the Misappropriation of Biological Resources, Traditional Knowledge and Expressions of
Folklore in User Countries”, (2014) 4:2 Queen Mary Journal of Intellectual Property 139 34
Eric Dannenmeier, “Beyond Indigenous Property Rights: Exploring the Emergence of a
Distinctive Connection Doctrine” (2008) 86:53 Washington University Law Review ....... 27
Evanson Chege Kamau, Bevis Fedder & Gerd Winter, “The Nagoya Protocol on Access to
Genetic Resources and Benefit Sharing: What is New and What are the Implications for
Provider and User Countries and the Scientific Community” (2010) 6:3 LEAD J. 248 ..... 30
James Anaya, “Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural
Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have
In Lands And Resources” (2005) 22:1 Arizona Journal of International and Comparative Law
7. ........................................................................................................................................... 27
James Crawford, “Investment Arbitration and the ILC Articles on States Responsibility”, (2010),
25:1 ICSID Rev Foreign Investment Law Journal 127 .......................................................... 4
Janneke Gerards, “Margin of Appreciation and Incrementalism in the Case Law of the European
Court of Human Rights” (2018) 18:3 HRLRev 495 ............................................................ 24
Kabir Bavikate and Daniel F. Robinson, “Towards a Peoples’ History of the Law: Biocultural
Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing” (2011) 7:1 LEAD J.
.............................................................................................................................................. 32
Lilian del Castillo-Laborde, “Equitable Utilization of Shared Resources”, in R. Wolfrum, Max
Planck Encyclopedia of Public International Law, (Germany: Max Planck Foundation, 2010)
.............................................................................................................................................. 13
Lilian Rojas and Marilia Gomes, "Metformin: an Old but still the Best Treatment for Type 2
Diabetes" (2013) 5:6 Diabetology and Metabolic Syndrome Journal ................................. 24
Murray Lee Eiland, “Patenting Traditional Medicine” (2007) 89 J. Pat. & Trademark Off. Soc'y
45 .......................................................................................................................................... 34
Peter P. Marra, David Hunter, and Anne M. Perrault, “Migratory Connectivity and the
Conservation of Migratory Animals”, 41 Environmental Law Gal.Marra.doc. 317 ..... 14, 15
xii
Robert L. Fischman and Jeffrey B. Hyman, “The Legal Challenge of Protecting Animal
Migrations as Phenomena of Abundance”, (2010). Articles by Maurer Faculty. Paper 79012
MISCELLANEOUS
Chris Wold, The Status of Sea Turtles under International Environmental Law and International
Environmental Agreements, September 8, 1997 .................................................................. 13
CMS, “Carcharodon carcharias”, Appendix I & II of CMS (2002), online:<www.cms.int>. 17
EC, Commission Regulation 511/14 of 16 April 2014 on compliance measures for users from the
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization in the Union, [2014], OJ, L 150/59 ........................ 29
ETO Consortium, Maastricht Principles on Extraterritorial Obligations of States in the Area of
Economic, Social, and Cultural Rights (Heidelberg: FIAN International, 2013) .................. 8
Helena Nyglen Crug, "Questions & Answers on Health and Human Rights" (2002):1 WHO
Publication Series ................................................................................................................. 23
India National Biodiversity Authority, Guidelines on Access and Benefit Sharing, 2014 ...... 34
Karl Mathiesen, “Will killing sharks save lives?”, The Guardian (15 January 2014), online:
<www.theguardian.com> ..................................................................................................... 17
T Fontaine, “Canada officially adopts UN declaration on rights of Indigenous Peoples”, CBC
News (10 May 2016), online: <http://www.cbc.ca/news/indigenous/canada-adopting-
implementing-un-rights declaration-1.3575272> ................................................................ 28
Vijay Pinjarkar, “Castor Units will have to Share Benefits with Locals”, the Times of India, (20
November 2015), online: <https://timesofindia.indiatimes.com> ....................................... 34
World Conservation Union, Caring for the earth: A strategy for sustainable living, (Gland:
IUCN, UNEP, WWF, 1991)................................................................................................. 12
xiii
STATEMENT OF JURISDICTION
The State of Aurok (“Aurok”) and the Republic of Rakkab (“Rakkab”) have agreed to accept
the jurisdiction of the Court pursuant to Article 36(1) of the Statute of the ICJ (“ICJ Statute”)
and to submit this dispute concerning the Kayleff Yak to the International Court of Justice
(“ICJ”) pursuant to Article 40(1) of the ICJ Statute, in accordance with the Compromis (together
with Corrections and Clarifications followed).
Aurok undertakes to accept the judgment of the Court as final and binding. Additionally, Aurok
will further negotiate with Rakkab regarding the modalities for the judgment’s execution in the
utmost good faith.
xiv
QUESTIONS PRESENTED
The State of Aurok requests the Court to adjudge:
I.
Whether DORTA’s actions are attributable to Rakkab, or in the alternative, Rakkab is
responsible for its own failure to prevent DORTA from committing those wrongful acts.
II.
Whether the harvesting of Yak in Rakkab violates Rakkab’s international obligations relating to
the protection of endangered species and the environment, including those under relevant
conventions, and Rakkab is obliged to end Yak harvesting on its territory;
III.
Whether the harvesting of Yak in Rakkab violates the cultural and religious rights of the people
of Aurok, and Rakkab must prohibit such hunting forthwith; and
IV.
Whether Rakkab must pay Aurok a portion of the profits realized from the sales of the drug
Gallvectra, because the appropriation and exploitation of traditional knowledge belonging to the
Aurokan people without compensation is inconsistent with international law.
xv
STATEMENT OF FACTS
KAYLEFF YAK
The Kayleff Yak (“Yak”) is a migratory species endemic to the Gaur Highlands, which is
located inside Aurok and Rakkab. During winter, the Yak begins mating in the southern Rakkabi
Gaur Highlands, before migrating northwards to the Aurokan Gaur Highlands to give birth. Up
until the early 2000s, the Yak population was roughly 750,000. Humans have never successfully
domesticated the Yak in captivity, despite some attempts.
AUROK
Aurok is a least-developed State, whose 1.2 million population mostly resides in small rural
villages. Its territory encompasses 70% of the Gaur Highlands. The Aurokan population directly
descends from the ancient Pivzao Civilization, who mostly self-identify as indigenous. To this
day, the Aurokans continue practicing the ancient Pivzao cultural and religious traditions,
notably the traditional Yak hunt as a rite of passage to adulthood. The Yak forms a central
element in every aspect of Aurokan life, being used as food, medicine, construction material,
clothing, and is referred to as a blessing from the Kayleff God. Foremost among these practices
is the consumption of the traditional soup called Tirhinga Nos Lustuk (“soup of the nasty bits of
Yak”).
xvi
TIRHINGA NOS LUSTUK
The Tirhinga Nos Lustuk is consumed by the Aurokans after successfully conducting a Yak hunt.
Its most important ingredient is the Yak gallbladder, which is believed by Aurokans to cure
illness and confer significant health benefits.
RAKKAB
Rakkab directly borders south of Aurok. Its territory encompasses 30 percent of the Gaur
Highlands. Rakkab has a population of 4.5 million, including less than 200 adherents to Pivzao
traditions. Since the mid-20th century, Rakkab has seen a significant rise in rates of adult and
child obesity.
DORTA
DORTA is a pharmaceutical company, initially established by Rakkab as the State Department
of Research, tasked to pursue and disseminate new medicines and treatments. Although it was
privatized in 1996, Rakkab retains 12 percent ownership over DORTA’s shares, continuously
subsidizes DORTA operations, and enacts a law that allows DORTA to monopolize sales of
prescribed medicines. Its Board of Directors, which includes ex-Rakkabi governmental officials,
regularly convenes with incumbent Rakkabi officials to discuss Rakkabi State policies.
GALLVECTRA
Gallvectra is a prescribed medicine manufactured by DORTA to treat insulin-related diseases. It
is made from extracted Lustuk Enzyme found in the Yak gallbladder. DORTA is able to isolate
the Lustuk Enzyme from the Yak gallbladder after investigating Aurokans’ traditional
xvii
consumption of Tirhinga Nos Lustuk. DORTA nets billions annually from Gallvectra sales,
without sharing any of its profits to Aurokans.
THE HARVEST OF YAK
DORTA has harvested the Yak to meet worldwide demand for Gallvectra since 2011, through
licenses individually approved by Rakkab. The harvest of Yak in Rakkab was done by private
Rakkabi hunters, who hunted the Yak and left its carcasses to “rot in the sun”. After Rakkab’s
promulgation of Regulation AG/2017-0300, which annulled all previous Yak hunting licenses,
Rakkab still granted DORTA a license to harvest 30,000 Yak annually, similar to the amount
harvested in previous years.
THE ENDANGERMENT OF YAK
In winter 2017 alone, DORTA harvested 30,000 Yak, causing a 5 percent decline in its overall
population. Consequently, in October 2017, the Yak was declared endangered by the CMS
Scientific Council. Rakkab formally rejected this pronouncement, and refused to believe the
Scientific Council’s credibility by relying on its previous unilateral assessment. Despite this,
DORTA continues to harvest the Yak even today.
YLSA REPORTS
The Yak Life Sciences Academy (“YLSA”), is an NGO focused on Yak study. In June 2016,
YLSA published a report warning the dangers of DORTA’s harvest of Yak towards the Yak
population The report observed a significant decline in young and female Yak and estimated the
species’ extinction by 2040. YLSA also reported that Aurokan traditional practices related to the
xviii
Yak would continue to decline. Subsequent YLSA surveys in 2017 confirmed that this decline
coincided with the start of DORTA’s harvest.
AUROKAN PROTESTS
The Aurokans have begun protesting DORTA since 2005, when Aurokan Minister Wynet
formally objected to DORTA’s filing of Gallvectra’s patent and subsequent approval. In 2016,
Prime Minister Sumun publicly condemned the harvest of Yak upon reports of its impact
towards the Yak population and Aurokans. On 10 September 2016, 8,000 Aurokans rallied
together to protest the destructive harvest of Yak. This protest grew larger in June 2017, when
20,000 Aurokans marched to the Prime Minister Sumun’s office opposing the harvest of Yak. In
September 2017, Aurokan Prime Minister Sumun warned the United Nations General Assembly
of DORTA’s harvest, fearing “the end of Aurokan life as we know it.”
AUROK’S YAK PROTECTION ACT
After banning the hunting of female Yak, Aurok promulgated the Yak Protection Act (“Act”) in
July 2017 to intensify efforts on Yak protection. The Act restricted exports of Yak products,
subjected Yak hunting within Aurok to strict licensing requirements, and imposed travel and
financial sanctions on Rakkabi companies doing business in Aurok. Yak hunting licenses granted
under the Act are limited in time and scope, and only permit hunting for traditional purpose.
xix
AUROK’S PROPOSAL TO RAKKAB
In October 2017, Aurokan Prime Minister Sumun presented her Rakkabi counterpart a proposal
to cease DORTA’s harvest, and pay Aurokans a share of profits from the sales of Gallvectra.
Rakkab rejected the proposal, denying any responsibility for any of DORTA’s actions.
xx
SUMMARY OF PLEADINGS
PLEADING I
DORTA’s harvest of Yak and the commercialization of Gallvectra are attributable to Rakkab.
Firstly, DORTA is a de facto State organ of Rakkab because it has responsibilities and functions
similar to State organs. DORTA actively reports its conducts to Rakkab in accordance with
Rakkabi law, and furthers the development of public health sector in Rakkab using Rakkabi
public funding.
Secondly, DORTA’s harvest of Yak and commercialization of Gallvectra exercises
governmental authority. These actions are empowered under Rakkabi domestic law and could
not be done by any regular private entity other than DORTA.
Thirdly, Rakkab controlled and instructed DORTA’s harvest of Yak and commercialization of
Gallvectra. Rakkab frequently meets with DORTA’s executives to discuss Rakkab’s national
policies. Moreover, harvest of Yak and commercialization of Gallvectra are conducted pursuant
to Rakkab’s authorization and mandates.
In the event, that DORTA’s actions are not attributable, Rakkab is responsible for the
consequences of DORTA’s actions because it has failed conduct reasonable measures of
oversight and impact assessment to prevent the reasonably foreseeable harms arising from
DORTA’s harvest of Yak.
xxi
PLEADING II
DORTA’s harvest of Yak violates international obligations relating to the environment.
Firstly, DORTA’s harvest of Yak has violated the customary obligation to equitably and
reasonably use shared natural resource because it disregards Aurokans’ interests over the Yak,
and exceeds the Yak’s reproduction rate.
Secondly, DORTA’s harvest of Yak causes significant transboundary damage to Aurok in the
form of declining Yak population, which regularly moves between Aurok and Rakkab.
Thirdly, DORTA’s continuous harvest of Yak after the Yak is declared endangered violates
Article III(5) of the CMS. The harvest is neither done for any scientific purpose nor is it based on
extraordinary circumstance, but merely to fulfill commercial demand.
PLEADING III
DORTA’s harvest of Yak violates the cultural and religious rights of Aurokans.
Firstly, DORTA’s harvest of Yak violates Aurokans’ rights to manifest their culture and religion.
The declining Yak population restricts the Aurokans’ traditional practices of Yak hunt.
Furthermore, this restriction cannot be justified as it has no legitimate purpose, does not
xxii
constitute the least intrusive measures, and is not proportionate to the detriment suffered by the
Aurokans.
Secondly, DORTA violates Aurokans’ indigenous right to be consulted throughout DORTA’s
harvest of Yak.
PLEADING IV
The Aurokans’s know-how of using the Yak gallbladder for health purposes constitutes Aurokan
traditional knowledge. DORTA’s harvest of Yak, manufacturing, and commercialization of
Gallvectra constitutes appropriation and exploitation of Aurokan traditional knowledge that must
be compensated by Rakkab.
Firstly, Aurokan traditional knowledge constitutes indigenous property under customary
international law, which is infringed when DORTA exploits such knowledge by producing the
Gallvectra.
Secondly, DORTA’s actions violate the Nagoya Protocol that protects traditional knowledge
associated with genetic resources (“TKGR”), including the Aurokan knowledge on the health
usages of the Yak gallbladder, which is closely correlated with the Yak gallbladder genetic
resources.
Primarily, the harvest of Yak constitutes access of Aurokan TKGR that requires at least
measures aimed at obtaining Aurokans’ prior and informed consent. Alternatively, DORTA’s
research activities and manufacturing of Gallvectra constitute utilization of TKGR that require
xxiii
benefit-sharing towards Aurokans. DORTA’s failure to conduct any abovementioned measures
violates the Nagoya Protocol.
Thirdly, DORTA’s commercialization of Gallvectra constitutes unfair competition. DORTA has
taken the fruits of Aurokan traditional knowledge by commercializing Gallvectra to the
detriment of the Aurokans’ tourism industry.
Lastly, DORTA’s commercialization of Gallvectra constitutes unjust enrichment because
DORTA has profited from the sales of Gallvectra without due compensation to the Aurokans,
despite the contribution of their traditional knowledge.
xxiv
PLEADINGS
I. RAKKAB IS RESPONSIBLE FOR THE INTERNATIONALLY WRONGFUL ACTS
DESCRIBED IN CLAIM (II)-(IV), infra, BECAUSE DORTA’S ACTIONS ARE
ATTRIBUTABLE TO RAKKAB, OR IN THE ALTERNATIVE, RAKKAB IS
RESPONSIBLE FOR ITS OWN FAILURE TO PREVENT DORTA FROM
COMMITTING THOSE WRONGFUL ACTS
DORTA is a State-owned Rakkabi pharmaceutical company that manufactures and sells
Gallvectra, a medicine made from the gallbladder of Kayleff Yak (“Yak”). 1

Rakkab is
responsible for DORTA’s actions described in Claims (II)-(IV), infra,2 because: (A) DORTA’s
harvest of Yak and commercialization of Gallvectra are attributable to Rakkab; alternatively, (B)
Rakkab has failed to prevent DORTA’s harvest of Yak.
A. DORTA’S HARVEST OF YAK AND COMMERCIALIZATION OF GALLVECTRA ARE
ATTRIBUTABLE TO RAKKAB UNDER THESE ALTERNATIVE GROUNDS
Actions of corporations can be attributed to States under the Articles on Responsibility of States
for Internationally Wrongful Acts (“ARSIWA”).3 Aurok submits that DORTA’s harvest of Yak
and commercialization of Gallvectra are attributable to Rakkab for these reasons.
1
Compromis, ¶¶10,11.
2
See Submissions II, III, IV, below.
3
Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/49
(Vol.I)/Corr.4 (2001), arts.4,5,8 [ARSIWA]; Draft Articles on Responsibility of States for
Internationally Wrongful Act with Commentaries, UN Doc. A/56/10 (2001), Chapter II ¶2
[ARSIWA Commentary]; Emilio Agustin Maffezini v. The Kingdom of Spain, [2000], Decision
1
1. DORTA is a de facto state organ of Rakkab
Actions of state organs are attributable under Article 4 of ARSIWA.4 The International Court of
Justice (“ICJ”) in Bosnian Genocide recognizes that State organs are not confined to entities
recognized by the State as a State organ with formal status under domestic law (“de jure state
organ”),5 but includes those having similar functions and responsibilities regardless of its status
(“de facto state organ”).6 In Ampal-American v. Egypt, similarities in functions and
responsibilities are determined from, inter alia, the public interest of the corporations’
establishment, its fulfillment of governmental roles, and presence of State funding.7
In this Case, DORTA was initially established by Rakkab as a state department to pursue
essential scientific discoveries.8 Although subsequently privatized, it maintains the same
functions using Rakkabi taxpayers' money. Moreover, DORTA acts under the auspices of the
of the Tribunal on Objections to Jurisdiction, ICSID Case No. ARB/97/7, ¶¶80,82 [Maffezini];
James Crawford, The International Law Commission’s Articles on State Responsibility:
Introduction, Text and Commentaries, (Cambridge: Cambridge University Press, 2002), at 100.
4
ARSIWA, supra n.3, art.4.
5
Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro), [2007], ICJ Rep 43, ¶385 [Bosnian
Genocide]; ARSIWA, supra n.3, art.4(2).
6
Bosnian Genocide, supra n.5, ¶397; Deutsche Bank AG v. Democratic Socialist Republic of Sri
Lanka, [2012], Award, ICSID Case No. ARB/09/02, ¶405(a) [Deutsche Bank]; Eureko B.V. v.
Republic of Poland, [2005], Partial Award, Ad Hoc arbitration, ¶131 [Eureko]; James Crawford,
Alain Pellet, and Simon Olleson, The Law of International Responsibility, (Oxford: Oxford
University Press, 2010) at 243.
7
Ampal-American Israel Corporation and others v. Arab Republic of Egypt, [2017], Decision on
Liabilities, ICSID Case No. ARB/12/11, ¶138-139 [Ampal-American].
8
Compromis, ¶9; Clarifications, ¶4.
2
Rakkabi government, demonstrated by its regular meetings with Rakkabi officials, similar to
how State organs engage with the State. Thus, DORTA is a de facto State organ of Rakkab.
2. DORTA’s harvest of Yak and commercialization of Gallvectra are done in
exercise of governmental authority
Under Article 5 of ARSIWA, “conducts exercising elements of governmental authority, pursuant
to empowerment under domestic law, shall be attributable to States”.9 In Salini v. Jordan10 and
Electrabel v. Hungary, 11 legislatively-granted rights to exploit natural resources and monopolize
certain commodities were considered actions imbued with governmental authority and
empowered by law.
In this Case, Rakkab has given DORTA a “legislatively-granted and government-enforced
monopoly on the sales of all prescription medicine within Rakkab”, including Gallvectra.12 In
order to manufacture Gallvectra, which requires Yak gallbladders, Rakkab additionally
empowered DORTA through Regulation AG/2017-0300 to “harvest…as many Yak as
required…for a period of three years.”13 Conclusively, the harvest of Yak and commercialization
9
ARSIWA Commentary, supra n.3, art. 5¶6.
10
Ian Brownlie, System of the Law of Nations State: Responsibility Part I/I Brownlie, (New
York: Oxford University Press, 1983), at p. 136; Albert Badia, “State Responsibility for State
Enterprises Action in Investment Law”, in Piercing the Veil of State Enterprises in
InternationalArbitration (Wolters Kluwer, 2014) at 172-173 [Badia]; Salini Costruttori S.p.A.
and Italstrade S.p.A. v. The Hashemite Kingdom of Jordan, [2004], Decision on Jurisdiction,
ICSID Case No. ARB/02/13, ¶81.
11
Badia, supra n.10, at 169§6.02; Electrabel S.A. v. Republic of Hungary, [2012] Decision on
Jurisdiction, Applicable Law and Liability, ICSID Case No. ARB/07/19 ¶6.2.
12
Compromis, ¶11.
13
Compromis, ¶45.
3
of Gallvectra are done in exercise of governmental authority, which is made possible by Rakkabi
law.
3. DORTA’s harvest of Yak and commercialization of Gallvectra are done
under Rakkab’s control and direction
Article 8 of ARSIWA explains that “a general control by State towards an entity, coupled with
specific direction or control over the entity's particular actions, would render those conducts
attributable to the State.”14 In this regard, DORTA’s harvest of Yak and commercialization of
Gallvectra are attributable to Rakkab, given Rakkab’s: (a) general control over DORTA; (b)
specific control of DORTA’s harvest of Yak; and (c) specific direction to commercialize the
Gallvectra.
a. Rakkab has general control over DORTA
In the context of corporations, the standard of general control is different from those used to
attribute an armed group’s conducts to the States. 15

In L.E.S.I-DIPENTA v Algeria, States
general control over corporations is seen through State involvement over the operations of the
16
corporations, which can be observed through, e.g. regular meetings both parties and State
endorsements of the entity’s conducts.17
14
ARSIWA Commentary, supra n.3, art. 8¶7; Bayindir Insaat Turizm Ticaret Ve Sanayi A.S. v.
Islamic Republic of Pakistan, [2009], Award, ICSID Case No. ARB/03/29, ¶130. [Bayindir].
15
Bayindir, supra n.14, ¶130.
16
Consorzio Groupement L.E.S.I.-DIPENTA v. Algeria, [2005], Award, ICSID Case No.
ARB/03/08, ¶19(ii) [LESI-DIPENTA]; James Crawford, “Investment Arbitration and the ILC
Articles on States Responsibility”, (2010), 25:1 ICSID Rev Foreign Investment Law Journal 127,
at 127-128.
17
LESI-DIPENTA, supra n.16, ¶19(iii); Ioannis Kardassopoulos and Ron Fuchs v. The Republic
of Georgia, [2010], Award, ICSID Case No. ARB/05/18 and ARB/07/15, ¶273.
4
Similarly, Rakkab exercises general control over DORTA, evinced by: firstly, Rakkab’s frequent
meetings with DORTA’s CEO and senior executives to “discuss Rakkabi national priorities”.18
Secondly, Rakkab’s constant support of DORTA’s actions in international conferences and its
ardent defence of DORTA’s harvest of Yak being sustainable. 19

Hence, Rakkab shall be
considered to retain general control over DORTA.
b. Rakkab specifically controls DORTA’s harvest of Yak
In Bayindir v. Pakistan, Pakistan specifically controlled NHA’s termination of an investor
contract, because such action was made possible through Pakistan’s express clearance.20
Similarly, Rakkab’s specific control over DORTA’s harvest of Yak is proven as such action is
only possible under Rakkab’s express authorization through Yak hunting license.21
c. Rakkab specifically directs the commercialization of Gallvectra
In EDF v. Romania, Romania specifically directed AIBO’s termination of an investor’s tenders,
because it was done pursuant to Romania’s specific mandates and policies.22 Presently, Rakkab
specifically directs DORTA’s commercialization of Gallvectra, by legislating a government-
enforced right for DORTA to monopolize prescribed medicines.23
18
Clarifications, ¶4.
19
Compromis, ¶43.
20
Bayindir, supra n.13, ¶125.
21
Compromis, ¶44.
22
EDF (Services) Limited v. Romania, [2009], Award, ICSID Case No. ARB/05/13,
¶¶209,212,213.
23
Compromis, ¶11.
5
B. ALTERNATIVELY, RAKKAB IS RESPONSIBLE FOR DORTA’S ACTIONS DESCRIBED,
INFRA, BECAUSE IT HAS FAILED TO PREVENT THE HARVEST OF YAK
Assuming arguendo that DORTA’s actions are not attributable to Rakkab, States are also
responsible for its failure to take necessary measures in preventing the reasonably foreseeable
harms caused by an entity within its territory.24 In this Case, the obligation of conducting
necessary measures exists under customary international law (“CIL”) and treaties relating to the
environment,25 human rights,26 and the protection of traditional knowledge.27 In this regard,
Rakkab could reasonably foresee the consequences of the harvest of Yak and failed to take
necessary measures to prevent them.
24
Bosnian Genocide, supra n.5, ¶431; Alexander Kees, “Responsibility of States for Private
Actors,” in R.Wolfrum, Max Planck Encyclopedia of Public International Law, (Germany: Max
Planck Foundation, March 2011), ¶3; ARSIWA, supra n.3, art.14(3).
25
Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 69, art.14(d) [CBD],
Convention on the Conservation of Migratory Species, 23 June 1979, 1651 U.N.T.S. 333,
art.3(4) [CMS], Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905, 1907 (1939, 1941),
[Trail Smelter] pp. 1905.
26
United Nations Declaration on the Rights of Indigenous People, UNGAOR, 61st Sess, Supp
No.49, U.N. Doc. A/RES/61/295 (2007), arts.19,30(2),32(2),38 [UNDRIP]; International
Covenant on Civil and Political Rights, 19 December 1996, 999 U.N.T.S 171, art.2(1), [ICCPR];
International Covenant on Economic, Social and Cultural Rights, 16 December 1996, 993
U.N.T.S 3, art. 2(1) [ICESCR]; Indigenous and Tribal Peoples Convention (No. 169), 5
September 1991, 1650 U.N.T.S 383, arts.7.3,32 [ILO Convention].
27
Paris Convention for the Protection of Industrial Property, 26 April 1970, 828 U.N.T.S. 305,
art.10(ter) [Paris Convention]; Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological
Diversity, 29 October 2010, CBD Decision 10/1, UN Doc. UNEP/CBD/COP/10/27, art.11
[Nagoya Protocol].
6
1. Rakkab could reasonably foresee the consequences of DORTA’s harvest of
Yak
In Bosnian Genocide, the standard of proof to determine whether a State can reasonably foresee
a harmful consequence is a balance of evidences known to the State. 28 Presently, there is
sufficient evidence to establish that Rakkab had reasonably foreseen the various harmful
consequences that would arise from the 2016 - 2017 harvest of Yak, as follows.
a. Rakkab could reasonably foresee the environmental damage caused by the
2016-2017 harvest of Yak
Rakkab could reasonably foresee the decline of Yak population due to DORTA’s harvest of Yak
in 2016-2017. Firstly, Rakkab is aware of the Yak’s slow reproduction rate and its inability to be
captively-bred.29 Secondly, the Yak Life Sciences Academy ("YLSA"), an NGO working in the
field of Yak conservation, published a report in 2016 warning the harvest’s irreversible damage
towards Yak population if current levels of harvesting persists.30 YLSA's report was
corroborated with the significant decline and uneven distribution to the Yak population that
coincided with the start of DORTA’s harvest of Yak.31 Conclusively, Rakkab could reasonably
foresee the environmental damage caused by the 2016-2017 harvest of Yak.
28
Bosnian Genocide, supra n.5, ¶436; Case of the Pueblo Bello Massacre v. Colombia (2006),
Judgement, Inter-Am Ct HR (Ser C) No. 140, ¶¶138-140; Pulp Mills in the River Uruguay
(Argentina v. Uruguay), [2010] ICJ Rep 18 (Separate Opinion of Judge Greenwood), ¶26.[Pulp
Mills].
29
Compromis, ¶1.
30
Compromis, ¶27.
31
Compromis, ¶29.
7
b. Rakkab could reasonably foresee the detriment towards the Aurokans’ culture
and religion caused by the 2016-2017 harvest of Yak
Rakkab could also reasonably foresee that Aurokans would face difficulties in manifesting their
culture and religion by hunting the Yak as a result of DORTA’s harvest of Yak in 2016–2017.
Firstly, Rakkab had, since ages, been aware of the Yak’ crucial role in every aspect of Aurokan
lives.32 Secondly, throughout DORTA’s harvest of Yak from 2011-2015, Prime Minister Sumun
have always expressed “grave concerns” on its negative human rights impact towards
Aurokans.33 Thirdly, various reports from the Aurok Truth, Courier Mail, and YLSA, all
forewarned the dangers of DORTA’s harvest of Yak towards Aurokan traditional hunting of
Yak.34
c. Rakkab could reasonably foresee the misappropriation and exploitation of
Aurokan traditional knowledge caused by the harvest of Yak
Rakkab could reasonably foresee that DORTA would commercialize the Gallvectra without
obtaining the consent nor sharing any benefits towards Aurokans. Firstly, Rakkab granted
DORTA’s patent of Gallvectra, despite the numerous concerns by Aurokans.35 Secondly, the
Aurokans have continously protested the lack of any consensual talks and benefit-sharing by
DORTA throughout its harvest of Yak and manufacturing of Gallvectra.36
32
Compromis, ¶¶2,3,4,5,7,27,29.
33
Compromis, ¶¶21,28,30.
34
35
Compromis, ¶17.
36
Compromis, ¶42.
8
2. Rakkab has failed to take necessary measures to prevent the consequences of
DORTA’s harvest of Yak
In Bosnian Genocide, a State fails its obligation to prevent reasonably harmful consequences
when it has “failed to take all measures…within its powers.”37 Presently, Rakkab failed to
conduct all necessary measures to prevent the harmful consequences of the harvest of Yak,
namely: (a) conducting an adequate and timely impact assessment; and (b) exercise adequate
oversight over corporate actions.
a. Rakkab has failed to conduct adequate and timely impact assessment
In Certain Activities, the ICJ affirms that an adequate impact assessment must be made the
moment States recognize a reasonably foreseeable harm occurring.38 This assessment must take
into account all harmful impacts of the activity.39 In this case, both of Rakkab’s existing impact
assessments were inadequate and untimely.
Firstly, Rakkab’s impact assessment in 2016 is inadequate because it failed to take into account
the disproportionate decline among the young and female Yak previously reported by YLSA. 40
Secondly, Rakkab’s subsequent impact assessment is untimely because it was conducted after
37
Bosnian Genocide, supra n.5, ¶438; ETO Consortium, Maastricht Principles on Extraterritorial
Obligations of States in the Area of Economic, Social, and Cultural Rights (Heidelberg: FIAN
International, 2013), Principle 13.
38
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)
and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),
Judgment, [2015] ICJ Rep 665, p. 104; Draft Articles on Prevention of Transboundary Harm
from Hazardous Activities with commentaries (2001), UN Doc.A/56/10 (2001), art.7¶1 at 157.
39
Pulp Mills, supra n.27, ¶204-205.
40
Compromis, ¶33.
9
the Yak were already declared endangered through its inclusion into Appendix I of the
Convention on the Conservation of Migratory Species of Wild Animals (“CMS”).41 This defeats
the purpose of conducting assessments, which is to prevent the endangerment of a species.
b. Rakkab has failed to exercise adequate oversight towards DORTA’s harvest
of Yak
States are required to exercise adequate oversight by monitoring the conducts of entities for
possible harmful effects.42 To illustrate, Switzerland was responsible for the pollution of the
River Rhine in 1986 caused by a pharmaceutical company, because Switzerland failed to take
into account the possible harmful effects that could arise from permitting the storage of
chemicals near a river. Knowing this, Switzerland did not revoke the permits, which gave rise to
the occurrence of environmental harm.43
Similarly, Rakkab did not take into account the possible harmful effects of DORTA’s harvest of
Yak, shown by the granting of hundreds of Yak hunting licenses throughout 2011-2016 without
regard to the Yak population.44 Worse, instead of revoking or reducing the Yak harvest permits
when Rakkab became reasonably aware of the possible harmful environmental consequences in
2016, Rakkab vehemently supported the 2016-2017 harvest of Yak.45
41
Compromis, ¶43.
42
Human Rights Council, John Ruggie, Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and Remedy” Framework,
A/HRC/17/31(2011), Principle 1, 3(a), 3(b), 5.
43
Aaron Schwabach, “The Sandoz Spill: The Failure of International Law to Protect the Rhine
from Pollution”, (1989), 16 Ecology L.Q. 443, at 468.
44
Compromis, ¶23.
10
Conclusively, Rakkab has not fulfilled its duty to prevent, and is responsible for the
consequences of the harvest of Yak.
45
Compromis, ¶36.
11
II. THE HARVESTING OF THE YAK IN RAKKAB VIOLATES RAKKAB’S
INTERNATIONAL OBLIGATIONS RELATING TO THE PROTECTION OF
ENDANGERED SPECIES AND THE ENVIRONMENT, INCLUDING THOSE
UNDER RELEVANT CONVENTIONS, AND RAKKAB IS OBLIGATED TO END
YAK HARVESTING ON ITS TERRITORY
DORTA’s harvest of Yak in Rakkab is in violation of: (A) the customary obligation on
reasonable and equitable usage of shared natural resources, (B) the customary prohibition of
causing transboundary harm, and (C) Article III(5) of CMS. Conclusively, (D) Rakkab shall
cease the harvest of Yak forthwith.
A. THE HARVEST OF YAK VIOLATES THE CUSTOMARY OBLIGATION OF EQUITABLE
AND REASONABLE USAGE OF SHARED NATURAL RESOURCES
Migratory species is considered as shared natural resources under international law.46
Accordingly, migratory species must be used equitably and reasonably as mandated under CIL.
The establishment of such custom is evident from the existence of widespread State practices and
opinio juris,47 evinced from various treaties,48 court pronouncements,49 and United Nations
46
Chusei Yamada, Second Report on Shared Natural Resources: Transboundary Groundwaters,
UN Doc.A/CN.4/539 (2004), Annex IV, ¶22; Draft Articles on the Law of Transboundary
Aquifers with Commentaries, UN Doc.A/63/10 (2008), General Commentary ¶1; Nele Matz-
Lück, “The Benefits of Positivism: The ILC’s Contribution to the Peaceful Sharing of
Transboundary Groundwater” in Georg Nolte, (eds), Peace through International Law
(Dordrecht, Heidelberg, London, New York: Springer, 2009), pp.125-150, at 130.
47
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands), [1969] ICJ Rep 3, ¶77 [North Sea Continental Shelf].
12
General Assembly (“UNGA”) Resolutions.50 Here, DORTA’s harvest of Yak, a migratory
species located in Aurok and Rakkab, is inequitable and unreasonable because it neither takes
into account: (1) the sustainability of the Yak; and (2) Aurokans’ interests over the Yak.
1. The harvest of Yak does not take into account the Yak’s sustainability
States must ensure that shared resources are used sustainably. 51 Harvesting a species beyond its
capacity to regenerate would be unsustainable.52 Bearing in mind each species’ different rate of
reproduction, the International Union on the Conservation of Nature elucidates that a trajectory
48
Convention on Wetlands of International Importance especially as Waterfowl Habitat, 17
February 1976, 996 UNTS 245; Interim Convention between the United States of America,
Canada, Japan and the Union of Soviet Socialist Republics on Conservation of North Pacific
Fur Seals, 9 February 1957, 4546 UNTS 105; Convention for the Conservation of Antarctic
Seals, 1 June 1972, 1080 UNTS 175; African Convention on the Conservation of Nature and
Natural Resources, 1001 UNTS 3, UN Reg No I-14689, CAB/LEG/24; ASEAN Agreement on
the Conservation of Nature and Natural Resources, 9 July 1985.
49
Case concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia), [1997] ICJ Rep 7
at ¶¶85-86 [Gabcikovo-Nagymaros]; Lake Lanoux Arbitration (France v. Spain), [1957] 12
UNRIAA 281 [Lake Lanoux]; Award between the United States and the United Kingdom
relating to the rights of jurisdiction of United States in the Bering’s sea and the preservation of
fur seals (United States of America v. United Kingdom), [1893] UNRIAA 263, at 269-270.
50
Cooperation in the Field of the Environment concerning Natural Resources Shared by Two or
More States, UN Doc.A/Res/34/186 (1979); Charter of Economic Rights and Duties of States,
UN Doc.A/Res/29/3281 (1974), arts.3,30.
51
Gabcikovo-Nagymaros, supra n.49, at ¶85.
52
Conference of the Parties to the Convention on Biological Diversity at its 2nd Meeting, Jakarta,
Decision II/7, Consideration of Articles 6 and 8 of the Convention, UNEP/CBD/COP/2/19 ¶5;
World Conservation Union, Caring for the earth: A strategy for sustainable living, (Gland:
IUCN, UNEP, WWF, 1991), p. 10; Declaration of the United Nations Conference on the Human
Environment, U.N. Doc. A/Conf.48/14 , 16 June 1972,11 ILM 1416, Principle 2,3,4,5
[Stockholm Declaration].
13
of 30% decrease in population in 10 years’ time highly indicates unsustainability. 53 Here,
DORTA’s harvest of Yak results in the Yak population being decimated by 10% within two
years.54 With such harvest level still continuing today55 in light of the Yak’s long gestation
period,56 the Yak population shows a trajectory of total extinction by 2040.57 Hence, the harvest
of Yak exceeds the Yak’s capacity to regenerate and is unsustainable.
2. The harvest of Yak does not take into account Aurokan interests
In using shared natural resources, States must balance the interests between each State in order to
reach an equitable outcome.58 This entails a prohibition of unilaterally using shared natural
resources.59 In Gabcikovo-Nagymaros, Czechoslovakia’s diversion of water from Danube River
53
Robert L. Fischman and Jeffrey B. Hyman, “The Legal Challenge of Protecting Animal
Migrations as Phenomena of Abundance”, (2010). Articles by Maurer Faculty. Paper 790. at 192.
54
Compromis, ¶36.
55
Clarifications, ¶5.
56
Compromis, ¶1.
57
Compromis, ¶27.
58
Fisheries Jurisdiction Cases (United Kingdom v. Iceland, FRG v. Iceland), Merits, Judgment,
[1974], ICJ Rep 3, ¶78 [Fisheries Jurisdiction]; Trail Smelter, supra n.25, p.1905; Lilian del
Castillo-Laborde, “Equitable Utilization of Shared Resources”, in R. Wolfrum, Max Planck
Encyclopedia of Public International Law, (Germany: Max Planck Foundation, 2010) ¶15.
59
Case Relating to the Territorial Jurisdiction of the International Commission of the River
Oder (Czech., Den., Fr., Ger., Swed., UK/Pol.), 1929 P.C.I.J. (ser. A) No. 23, at 5; Chris Wold,
The Status of Sea Turtles under International Environmental Law and International
Environmental Agreements, September 8, 1997, p. 2.
14
was inequitable, as it was unilaterally performed without regard to Hungary’s existing use of the
river.60
Similarly, DORTA unilaterally harvested the Yak in excessive amounts without considering the
Aurokan interests.61 Concerns and protests raised towards DORTA were left unheeded 62 and
DORTA persists in its destructive harvest of Yak despite Aurokans’ initiative to compromise on
their hunting of Yak.63 Such unilateral harvest of the Yak evinces DORTA’s disregard of
Aurokan interest over the Yak.
B. THE HARVEST OF YAK CAUSES SIGNIFICANT TRANSBOUNDARY HARM IN AUROK
Under CIL, States are prohibited from causing significant transboundary damage towards
another State.64 Here, the declining Yak population caused by DORTA’s harvest: (1) constitutes
transboundary damage that; (2) satisfies the threshold of significant damage.
1. The harvest of Yak causes transboundary damage
Transboundary damage occurs when a damaging factor moves across State territory, e.g. harmful
pollutants moving between State borders.65 Since a migratory species constantly moves between
60
Gabcikovo-Nagymaros, supra n.49, ¶85; Lake Lanoux, supra n.49, ¶22.
61
Compromis, ¶¶1,2,5,7,16,27.
62
63
Compromis, ¶¶31,35,42,45.
64
Trail Smelter, supra n.25, p.1963; Legality of the Threat or Use of Nuclear Weapons,
Advisory Opinion, 1996 ICJ 226, ¶29; Corfu Channel (United Kingdom and Northern Ireland v.
Albania), Judgment of Merits, [1949] ICJ Rep 4, ¶34.
15
States, any harm befalling such species thus constitutes damage towards the natural resources of
all States where it migrates in-between.66 In this Case, as the Yak migrate between Aurok and
Rakkab,67 the decline of the Yak population caused by its harvest in Rakkab simultaneously
damages Aurok because it will eventually deprive Aurok of its constant supply of Yak.
Conclusively, the harvest of Yak has caused transboundary damage to Aurok.
2. The declining population of Yak constitutes significant damage
The threshold of ‘significant’ is satisfied when damage to the environment is greater than mere
nuisance.68 In the context of a species, threats towards its continuity due to overhunting would
constitute significant damage,69 more so when such threat simultaneously detriments mankind’s
use of said species.70 Presently, the Yak population are constantly declining since DORTA’s
harvest of Yak,71 with particularly rapid decline amongst baby Yak and females of breeding
age.72 Due to such scarcity, the northernmost Aurokans’ ability to perform their hymns and
65
Xue Han Qin, Transboundary Damage in International Law, (New York: Cambridge
University Press, 2003) at 8.
66
Peter P. Marra, David Hunter, and Anne M. Perrault, “Migratory Connectivity and the
Conservation of Migratory Animals”, 41 Environmental Law Gal.Marra.doc. 317, at 318 ,
[Marra].
67
Compromis, ¶1.
68
Julio Barboza, ‘‘Sixth Report on International Liability for Injurious Consequences Arising
out of Acts not Prohibited by International Law,” March 15, 1990, UN Doc. A/CN.4/428 (Article
2(b) and (e)), reproduced in Yearbook of the ILC (1990), vol. II (Part One), at 83.
69
Marra,supra n.64, at 345.
70
Julio Barboza, The Environment, Risk, and Liability in International Law, (Leiden: Martinus
Nijhoff Publishers, 2011) at 95-96.
71
Compromis,¶29.
72
Compromis,¶27.
16
prayers, participate in a successful yak hunt, and eat the Tirhinga Nos Lustuk were hampered.73
Therefore, the damage caused by the harvest of Yak is significant. Conclusively, DORTA’s
harvest of Yak has caused a significant transboundary damage.
C. THE HARVEST OF YAK IN RAKKAB VIOLATES THE CONVENTION ON THE
CONSERVATION OF MIGRATORY SPECIES OF WILD ANIMALS (“CMS”)
Article III(5) of CMS prohibits the taking of any species listed in Appendix I of CMS except for
certain reasons stipulated therein.74 Here, DORTA’s harvest of Yak after its inclusion into
Appendix I violates Article III(5), as it is neither conducted for: (1) for a scientific purpose; nor
(2) under an extraordinary circumstance.
1. The harvest of Yak is not conducted for a scientific purpose
In Whaling, taking animals has scientific purpose if it is intended to foster new scientific
knowledge,75 and does not go beyond what is strictly necessary to achieve that purpose.76 Similar
to Japan’s excessive commercial killing of 850 whales done under the facade of whale research
initiatives, 77
DORTA’s excessive killing of Yak is unjustifiable under the veil of scientific
purpose. Firstly, the Yak’s harvest would not foster new scientific knowledge because all
73
Compromis, ¶41.
74
CMS, supra n.24, art.3(5).
75
Whaling in the Antarctic (Australia and New Zealand (intervening) v. Japan), [2014] ICJ GL
No 148, [Whaling] ¶58.
76
Ibid, ¶94.
77
Ibid, ¶¶189,190.
17
knowledge involving the Yak required to produce Gallvectra has been discovered.78 Secondly,
DORTA’s harvest of 30,000 Yak annually cannot be strictly necessary towards the research for a
synthetic Lustuk Enzyme.79 Conversely, the harvest is intended to meet commercial demands for
Gallvectra.80 In conclusion, the harvest of Yak is not conducted for a scientific purpose.
2. The harvest of Yak is not conducted under an extraordinary circumstance.
Rakkab may argue that DORTA’s harvest of Yak done for the production of Gallvectra to treat
insulin-related diseases is justified as an extraordinary circumstance. But this contention is
erroneous because: firstly, contextual interpretation of “extraordinary circumstances may so
require” alongside the CMS’ object and purpose to conserve animals, 81 implies that killing
species listed in Appendix I are justified in the complete absence of alternatives other than
killing such species;82 secondly, subsequent practices to the CMS affirm that extraordinary
circumstances cannot justify hunting for commercial purposes.83 For instance, Australia’s cull of
78
Compromis, ¶¶13,14
79
Compromis, ¶33.
80
Compromis, ¶38; Clarifications, ¶5.
81
CMS, supra n.25, Preamble; Richard Gardiner, Treaty Interpretation (New York: Oxford
University Press), §4.2.5; Vienna Convention on the Law of Treaties, 23 May 1969, 1155
U.N.T.S. 331, art.31(1) [VCLT].
82
Arie Trouwbourst, (2014), “Aussie Jaws and International Laws: The Australian Shark Cull
and the Convention on Migratory Species”, 2 Cornell Int’l L.J. Online, at 44.
83
ACCOBAMS, 6th Mtg, Taking of Cetaceans, Dolphinaria, and Quasi-Dolphinaria: A Legal
Analysis within the Framework of ACCOBAMS, ACCOBAMS-MOP6/2016/Inf21 (2016) at 5.
18
the endangered Great White Shark,84 despite being aimed to protect Australians living near
coastlines, was internationally condemned as it failed to employ non-lethal alternatives.85
Similarly, there are other non-lethal measures besides harvesting the Yak, that could be done to
treat insulin-related diseases, e.g. producing synthetic medicines with similar effects such as
Metformin and Akarbose. Ultimately, DORTA’s harvest of Yak done commercial purposes,
cannot be justified as an extraordinary circumstance under Article III(5) of CMS.
D. THUS, RAKKAB SHALL CEASE THE HARVEST OF YAK WITHIN ITS TERRITORY
Article 30 of ARSIWA requires States to cease continuously occuring internationally wrongful
conduct.86 As DORTA’s harvest of Yak violates various international obligations concerning
shared natural resources and environmental protection, Rakkab must cease the harvest of Yak
that still continues today as reparation for such internationally wrongful acts.
84
CMS, “Carcharodon carcharias”, Appendix I & II of CMS (2002), online:<www.cms.int>.
85
Karl Mathiesen, “Will killing sharks save lives?”, The Guardian (15 January 2014), online:
<www.theguardian.com>.
86
ARSIWA, supra n.3, art.30.
19
III. THE HARVESTING OF THE YAK IN RAKKAB VIOLATES THE CULTURAL
AND RELIGIOUS RIGHTS OF AUROKANS, AND RAKKAB MUST PROHIBIT
SUCH HUNTING FORTHWITH
Aurok’s population is almost entirely indigenous.87 Presently, DORTA’s harvest of Yak violates:
(A) the Aurokans’ Cultural and Religious Rights under the International Covenant on Economic
and Social Rights (“ICESCR”) and International Covenant on Civil and Political Rights
(“ICCPR”); and (B) the Aurokans’ right be consulted by DORTA throughout the harvest of Yak
under Article 7(1) of the Indigenous and Tribal Peoples Convention (“Indigenous Peoples’
Convention”). Consequently, (C) Rakkab shall prohibit such harvest of Yak forthwith.
A. THE HARVEST OF YAK VIOLATES THE AUROKANS’ CULTURAL AND RELIGIOUS
RIGHTS UNDER THE ICESCR AND ICCPR
1. The ICESCR and ICCPR are extraterritorially applicable to the
consequences of the harvest of Yak suffered by Aurokans
The UN Committee on Economic, Social, and Cultural Rights (“CESCR”), has affirmed that the
ICESCR obliges States to respect and protect human rights not only internally, but also
extraterritorially.88 In that same vein, the Human Rights Committee (“HRC”) has affirmed that
the ICCPR can be applied extraterritorially towards any individuals that are subject to the
87
ILO Convention, supra n.26, art.1; José Martínez Cobo, Study of the problem of
discrimination against indigenous populations, Volume 3, Report of Special Rapporteur of the
Sub-Commission on Prevention of Discrimination and Protection and Minorities
E/CN.4/Sub.2/1986/7/Add.4, ¶381-382; Clarifications, ¶1.
88
Committee on Economic, Social and Cultural Rights (CESCR), General Comment No.24: on
State obligations under the ICESCR in Context of Business Activities, UN doc. E/C.12/GC/24,
¶¶10-14.
20
jurisdiction of a State.89 This occurs when an individual’s rights are affected by a State’s action
or omission.90 The rationale being, if States are prohibited from committing human rights
violations within its territory, they should not be able to do so extraterritorially.91 Presently,
DORTA’s harvest of Yak has negatively affected92 Aurokans’ rights to manifest culture and
religion, rendering both Covenants applicable.
2. The Aurokan practices relating to Yak constitute a manifestation of Aurokan
cultural life and religious belief
Indigenous practices of culture and religion are often intertwined.9394 In Apirana v. New
Zealand, traditional fishing is regarded as fundamental for Maori cultural and religious
89
UN Human Rights Committee (HRC), General Comment No.31[80]: Nature of the General
Legal Obligation on State Parties to the Covenant, ¶10 [CCPR General Comment No.31].
90
Sergio Euben Lopez Burgos v. Uruguay, Communication No. R.12/52, U.N. Doc. Supp. No.
40 (A/36/40, (1981), at 176; Ocalan v. Turkey, No. 24069/03, [2014], European Court of Human
Rights (ECHR); Legal Consequences For States of the Continued Presence of South Africa in
Namibia (South West Africa) Notwithstanding Security Council Resolution 276 , Advisory
Opinion, [1971] ICJ Rep 16 at 78; Environment and Human Rights (colombia) (2017), Advisory
Opinion OC-32/17, Inter-Am Ct HR (Ser A), at 4.
91
CCPR General Comment No.31, supra n.89, ¶10.
92
93
Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of
Endorois Welfare Group) v Republic of Kenya (2009), African Court of Human and People's
Rights, No. 276/03 ¶78[Endorois]; UNHRC, Communication No. 547/1993, Apirana Mahuika et
al v New Zealand, U.N. Doc. CCPR/C/70/D/547/1993 (2000).¶8.2 [Apirana v. New Zealand].
94
CESCR, General Comment No.21: Right to Culture, UN Doc. E/C/GC/21, ¶13 [CESCR
General Comment No.21]; UNHRC, CCPR General Comment No.22: Article 18 (Freedom of
Thought, Conscience, or Religion), U.N. Doc. CCPR/C/21/Rev.1/Add.4, at ¶4. [CCPR General
Comment No.22]
21
manifestations.95 Therefore, for indigenous communities, traditional activities can
simultaneously be regarded as manifestations of culture and religion. Presently, Aurokan
practices of hunting the Yak and eating the communal meal of the Tirhinga Nos Lustuk are a
prerequisite for young Aurokans to own a house, start a family, and participate in village
governance, which constitute Aurokan manifestation of culture and religion.96 All these practices
hinge on the Yak’s availability, which was disrupted through DORTA’s harvest of Yak.
3. DORTA’s harvest of Yak restricts the Aurokans’ rights to culture and
religion
Manifestations of culture and religion are restricted when goods important to those practices
97
become harder to obtain, regardless of whether it results in total restriction. In Islamic
Community, reducing mosques to the extent that Muslims must travel 80 kilometers to pray
constitutes restriction of religious practice.98 Whilst in Poma, Peruvian projects that reduced the
population of llamas, important for cultural manifestation of the local indigenous community,
constitutes restriction of cultural rights.99 Presently, DORTA’s harvest of Yak has reduced the
95
Apirana v. New Zealand, supra n.93, ¶8.2.
96
Compromis, ¶41.
97
CESCR General Comment No.21, supra n.94, ¶¶15-16; African Commission on Human and
Peoples' Rights v. Republic of Kenya, African Court of Human and People's Rights, No.
006/2012, ¶164.
98
The Human Rights Chamber for Bosnia and Herzegovina, The Islamic Community in Bosnia
Herzegovina v. The Republika Srpska, Case No. CH/96/29, at ¶179; UNHRC, Communication
No. 1155/2003, Leirvag v Norway, U.N. Doc. CCPR/C/82/D/1155/2003, at ¶14.6.
99
UNHRC, Communication No. 1457/2006, Angela Poma Poma v. Peru, U.N. Doc.
CCPR/C/95/D/1457/2006, at ¶¶2.2-2.5; see also UNHRC, Communication No. 511/1992,
Lansman et al v. Finland.
22
amount of Yak available for hunting.100 Because of this, Aurokans are unable to eat their
Tirhinga Nos Lustuk, and must travel further south in hopes of finding any Yak.101 This amounts
to a restriction of Aurokans’ cultural and religious rights.
4. The restrictions towards Aurokans’ rights to culture and religion are
unjustifiable under Article 4 of the ICESCR and 18(3) of the ICCPR
The foregoing restrictions will violate the ICESCR and ICCPR if it does not fulfill the
requirements stipulated in Article 4 of ICESCR and Article 18(3) of ICCPR,102 namely: (a)
legitimate in purpose; (b) necessary; and (c) proportional to the intended purpose. 103 Here,
DORTA’s harvest of Yak does not fulfill these requirements.
a. The harvest of Yak lacks legitimate purpose
Aurok acknowledges that a legitimate purpose includes protecting the public health of a
population.104 However, given the paramount nature of human rights, any permissible restriction
for public health requires serious threats to the population’s health or its individual members.105
World Health Organization (“WHO”) elucidated that serious threats to the population includes
100
Compromis, ¶¶27-28.
101
Compromis, ¶41.
102
ICESCR,supra n.26, art.4; ICCPR, supra n.26, art.18(3); CESCR General Comment No.21,
supra n.94, ¶¶17-19.
103
UNHRC, Communication No.1876/ 2000, Singh v. France, U.N. Doc.
CCPR/C/102/D/1876/2009, ¶8.4.
104
ICESCR, supra n.26, art. 4; ICCPR, supra n.26, art. 18(3).
105
CESCR, The Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, Annex, UN Doc E/CN.4/1984/4 (1984),
[Siracusa Principles] at 25; Brigit Toebes, “Human Rights and Public Health: Towards a
Balanced Relationship” (2015) 19:4 IJHR 488 at 497
23
communicable diseases like Ebola or AIDS, which require isolation and quarantines to
effectively treat.106 Contrastingly, the HRC regards non-communicable disease such as insulin-
related diseases as not posing dangers to public health.107
Presently, although there is cause for concern for Rakkabis afflicted with insulin-resistant
diseases, it does not warrant severe restrictions of another State populations’ rights, because
those diseases are not contagious and its treatment does not require any restriction on human
rights.108 Moreover, there are other known treatments for these diseases reasonably available to
Rakkabis without having to resort to harvesting the Yak. Thus, there are no serious health risks
that warrant the harvest of Yak, rendering it without a legitimate aim.
In any event, assuming that treating insulin-related diseases can legitimately restrict the
Aurokans’ rights, such activity must be strictly purposed for that legitimate aim.109 Here, the Yak
are primarily harvested for-profit by DORTA. Additionally, the Gallvectra’s patent indicates the
absence of any altruistic concerns. Therefore, Gallvectra’s health benefit is not strictly purposed
for DORTA’s harvest, but merely the inevitable effect of selling any medicine.
106
Helena Nyglen Crug, "Questions & Answers on Health and Human Rights" (2002):1 WHO
Publication Series, at 18-19.
107
Draft Principles and Guidelines on Elimination of Discrimination against Persons Affected by
Leprosy and their Family Members, U.N. Doc. A/HRC/AC/3/CRP.2, at ¶22.
108
Ibid.
109
CCPR General Commentary No.22, supra n.94, ¶26; Siracusa Principles, supra n.105, art.25;
24
b. The harvest of Yak is unnecessary
Restrictions of human rights must be necessary to achieve the intended purpose, 110 not merely
useful for the goal.111 Necessity is seen by determining whether other less intrusive measures
could be done to achieve that purpose.112 In this case, the Harvest of Yak is unnecessary for the
purpose of public health, in light of other less intrusive measures that could have been done.
Firstly, other alternative medicines exist for treating insulin-resistant diseases, including
metformin and acarbose.113 Secondly, Rakkab could have ceased Yak’s harvest temporarily to
allow time for study and the recovery of the species.114 Thirdly, Rakkab could have followed
Aurok in imposing a moratorium on harvesting female Yak to reduce its impact towards the
population.
c. The harvest of Yak is disproportionate
Proportionality entails a balancing of the restricted right in light of the purpose of a measure, 115
in order to accommodate both interests.116 In context of indigenous communities, high regard
110
CESCR General Comment No.21, supra n.94, ¶19; CCPR General Commentary No.22, supra
n.94, ¶8.
111
Handyside v United Kindgom (1976), ECHR (Ser A), ¶48.
112
UNHRC, Communication No.1321-22/2004, Yeo-Bum Yoon and Myung-Jin Choi v Republic
of Korea, UN. Doc. CCPR/C/88/D/1321-1322/2004, ¶8.4; UNHRC, Communication
No.208/1986, Karnel Singh Bhinder v. Canada, U.N. Doc. CCPR/C/37/D/208/1986, ¶6.2.
113
Lilian Rojas and Marilia Gomes, "Metformin: an Old but still the Best Treatment for Type 2
Diabetes" (2013) 5:6 Diabetology and Metabolic Syndrome Journal.
114
Compromis, ¶31.
115
Janneke Gerards, “Margin of Appreciation and Incrementalism in the Case Law of the
European Court of Human Rights” (2018) 18:3 HRLRev 495.
116
Delfi v. Estonia, No. 64569/09, [2015] ECHR 1.
25
must be placed towards their traditional practices because of its importance to their entire
worldview and existence.117 In Endorois, Kenyan projects that restricted indigenous access to
their ancestral lake is considered disproportionate to any public need, noting that the indigenous
rights were extinguished to the point of becoming illusory. 118
Presently, DORTA’s harvest level remained detrimental throughout the years, to the point that
Aurokans were barely able to perform Yak-related ceremonies due to the Yak’s scarcity.119
Hence, this amounts to an extinguishment of Aurokans’ cultural and religious rights that renders
DORTA’s harvest of Yak disproportionate.
Conclusively, DORTA’s harvest of Yak violates the Aurokans’ cultural and religious rights
under Article 15(1) of the ICESCR and Article 18(1) of the ICCPR.
B. DORTA’S HARVEST OF YAK WITHOUT SUFFICIENT CONSULTATION WITH THE
AUROKANS VIOLATES ARTICLE 7(1) OF THE INDINGENOUS PEOPLES’ CONVENTION
Article 7(1) of the Indigenous Peoples’ Convention provides rights for indigenous communities
to exercise control over their own culture against measures that may affect their rights.120
Accordingly, parties who conduct potentially detrimental measures towards indigenous
117
CESCR General Comment No.21, supra n.94, ¶36.
118
Endorois, supra n.93, ¶251; Constitutional Rights Project and Others v. Nigeria, African
Court of Human and People's Rights, Communication No. 140/94-141/94-45/95, ¶42.
119
Compromis, ¶42.
120
ILO Convention, supra n.26, art.7(1).
26
communities’ cultural rights must consult with them throughout such measures. 121 In CUT v.
Colombia, Colombia violated the obligation to consult with indigenous communities by not
informing and involving them continuously throughout developmental activities with the
objective of finding their consent. 122 Presently, the Harvest of Yak was done without ever fully
informing the indigenous Aurokans of its consequences, nor involving them throughout
DORTA’s decision-making process.123 Despite that, the harvest of Yak has remained relentless,
showing no signs of abating till today.124 Conclusively, no sufficient consultation was conducted
throughout DORTA’s harvest of Yak, which constitutes a violation of Article 7(1) of Indigenous
Peoples’ Convention.
C. RAKKAB SHALL PROHIBIT DORTA’S HARVEST OF YAK FORTHWITH
Consequently, due to the violations of Aurokan cultural and religious rights under the ICESCR,
ICCPR and the Indigenous Peoples Convention, 125 Rakkab must prohibit such harvest of Yak in
Rakkab forthwith, as reparations for the continuing violations.
121
ILO Convention, supra n.26, art.6(1)a; Human Rights Council, Follow-up Report on
Indigenous Peoples and the Right to Participate in Decision-Making, with a Focus on Extractive
Industries, A/HRC/EMRIP/2012/2, at 10, at ¶29.
122
Report of the Committee Set Up to Examine the Representation Alleging Non-Observance by
Colombia of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), the Central Unitary
Workers' Union (CUT) and the Colombian Medical Trade Union Association, ILO Doc.
GB.282/14/3 (Nov. 14, 2001) (Embera Report) ¶82.
123
Compromis ¶¶30,39.
124
Compromis ¶¶5,7.
125
See III.A and III.B above.
27
IV. RAKKAB MUST PAY AUROK A PORTION OF THE PROFITS REALIZED FROM
THE SALES OF GALLVECTRA, BECAUSE THE APPROPRIATION AND
EXPLOITATION OF TRADITIONAL KNOWLEDGE BELONGING TO THE
AUROKAN PEOPLE WITHOUT COMPENSATION IS INCONSISTENT WITH
INTERNATIONAL LAW
Traditional knowledge is know-how developed and maintained by indigenous communities,
forming part of indigenous culture.126 In this Case, the use of Yak gallbladder for medicinal
purposes is an Aurokan traditional knowledge, because it was first developed by Aurokans and
forms part of their way of life through usages in rituals, prayers, and hymns.127
Presently, DORTA's utilization of Yak gallbladder to create Gallvectra draws inspiration from
the Aurokan traditional knowledge. Aurok submits that the absence of any compensation
towards Aurokans for these actions has violated international law for the following reasons.
A. DORTA’S USE OF AUROKAN TRADITIONAL KNOWLEDGE VIOLATES AUROKANS’
INDIGENOUS PROPERTY RIGHTS UNDER CUSTOMARY INTERNATIONAL LAW
Under CIL, traditional knowledge of indigenous communities is protected as property, which
accord them the right to authorize and be compensated for its use.128 This custom is evinced from
126
WIPO, WIPO Report on Fact-finding Missions on Intellectual Property and Traditional
Knowledge: Intellectual Property Needs and Expectation of Traditional Knowledge Holders,
(2001), at 25.
127
128
Eric Dannenmeier, “Beyond Indigenous Property Rights: Exploring the Emergence of a
Distinctive Connection Doctrine” (2008) 86:53 Washington University Law Review, at 91-93;
James Anaya, “Indigenous Peoples’ Participatory Rights In Relation To Decisions About Natural
28
widespread State practices and opinio juris. Firstly, State practices, including those from
Phillipines,129 Australia,130 Bolivia,131 Portugal,132 Thailand,133 and Canada134 accord intellectual
property rights to traditional knowledge. Secondly, almost all States unanimously adopt the
United Nations Declaration on the Rights of Indigenous People,135 and other United Nations
General Assembly (“UNGA”) resolutions affirming this right.136
Therefore, the Aurokan traditional knowledge on using the Yak gallbladder for health benefits is
protected as a property right. DORTA's use of this traditional knowledge throughout its harvest
of Yak, and manufacturing and commercialization of Gallvectra, bereft of Aurokans'
authorization and compensation, violates Aurokan's customary property rights.
Resource Extraction: The More Fundamental Issue Of What Rights Indigenous Peoples Have In
Lands And Resources” (2005) 22:1 Arizona Journal of International and Comparative Law 7 at
17.
129
Philippines, Indigenous Peoples Rights Act of 1997, s 34.
130
Mabo and others v Queensland, [1992] HCA 23 ¶97.
131
Bolivia, Law No.3760 of 2007 on the Rights of Indigenous People.
132
Portugal, Decree-Law 118/2002.
133
Thailand, Act on Protection and Promotion of Traditional Thai Medicinal Intelligence, s 14.
T Fontaine, “Canada officially adopts UN declaration on rights of Indigenous Peoples”, CBC

134
News (10 May 2016), online: <http://www.cbc.ca/news/indigenous/canada-adopting-

implementing-un-rights declaration-1.3575272>
135
UNDRIP, supra n.29, art.31.
136
Rights of Indigenous People, UNGAOR, 72nd Sess, UN Doc A/RES/72/155 (2018); Rights of
Indingenous Peoples, UNGAOR, 71st Sess, UN Doc A/RES/71/178 (2017).
29
B. DORTA’S USE OF AUROKAN TRADITIONAL KNOWLEDGE ASSOCIATED WITH
GENETIC RESOURCES VIOLATES ARTICLES 7 AND 5(5) OF THE NAGOYA PROTOCOL
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization to the Convention on Biological Diversity (“Protocol”)
protects traditional knowledge associated with genetic resources (“TKGR”), i.e. traditional
knowledge that contributes to the discovery of properties of genetic resources.137 In this Case, the
Aurokan traditional knowledge is associated with a genetic resource, i.e. the Yak gallbladder,
because it catalyzed the discovery of the gallbladder's health benefits.138 Therefore, the Aurokan
traditional knowledge constitutes TKGR protected under the Protocol. Based on the foregoing,
Aurok submits that DORTA's actions toward the Aurokan TKGR violates both Article 7 and
5(5) of the Protocol for the following reasons.
1. The access of TKGR through harvest of Yak gallbladder violates Article 7 of
Nagoya Protocol
Article 7 of the Protocol requires measures that ensure access of TKGR with prior and informed
consent (“PIC”) of the indigenous community.139 Presently, DORTA's harvest of Yak (a)
constitutes access of TKGR. Such access has violated Article 7 of the Protocol because (b) no
PIC was given, and alternatively, (c) no sufficient negotiations were conducted with Aurokans.
Additionally, (d) Rakkab cannot preclude its violations for lack of domestic legislation.
137
Nagoya Protocol, supra n. 27, arts.5(5),7
138
EC, Commission Regulation 511/14 of 16 April 2014 on compliance measures for users from
the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of
Benefits Arising from their Utilization in the Union, [2014], OJ, L 150/59, preamble 5; India,
Biological Diversity Act 2002, 18/2003, Chapter III. [India, Biodiversity Act].
139
Nagoya Protocol, supra n.27, art.7.
30
a. The harvest of Yak constitutes access of TKGR
Contextually interpreting the Protocol, access means all actions done with the goal of utilizing
the genetic resources,140 e.g. collecting biological materials in the wild and obtaining samples of
genetic resources.141 This interpretation is supported by State practices including the Andean
Community,142 India,143 Ecuador,144 and Australia.145 DORTA's harvest of the Yak gallbladder
constitutes access of TKGR under Article 7 of the Protocol, because it collects such resources
with goal of utilizing it, as evinced DORTA’s production of Gallvectra.
b. The harvest of Yak is conducted without the PIC of the Aurokans
The prevailing interpretation of Article 7 requires States to obtain PIC from the TKGR holders
before accessing them,146 because: firstly, such interpretation is in line with the Protocol's object
and purpose, i.e. creating beneficial access regime for indigenous communities;147 secondly, the
majority of specially affected States with regards to TKGR-related matters such as Panama,148
140
Nagoya Protocol, supra n.27, art.6(1).
141
Elisa Morgera, Elsa Tsioumani & Matthias Buck, Unraveling the Nagoya Protocol: Legal
Studies on Access and Benefit-Sharing,Volume 2, (Leiden: Koninklijke Brill NV, 2010) at 140.
142
Andean Community, Decision No.391 Establishing the Common Regime on Access to
Genetic Resources, 1996.
143
India, Biodiversity Act, supra n.134.
144
Ecuador, Decreto 905, 2011.
145
Australia, Environment Protection and Biodiversity Conservation Regulation, 2000
146
Evanson Chege Kamau, Bevis Fedder & Gerd Winter, “The Nagoya Protocol on Access to
Genetic Resources and Benefit Sharing: What is New and What are the Implications for Provider
and User Countries and the Scientific Community” (2010) 6:3 LEAD J. 248 at 250.
147
Nagoya Protocol, supra n.27, Preamble 21.
148
Panama, Law on Free, Prior and Informed Consent of Indigenous Peoples of 2016.
31
Bolivia,149 Switzerland,150 and Australia,151 view PIC as a prerequisite of accessing TKGR. Thus,
the absence of Aurokans' PIC before and during DORTA's harvest of Yak violates Article 7 of
Protocol.152
c. The harvest of Yak is not preceded by sufficient negotiation with the
Aurokans
Assuming arguendo that PIC is not a prerequisite, the Protocol still mandates States to conduct
negotiations with indigenous communities with the aim of obtaining PIC, before accessing their
TKGR.153 In Georgia v. Russia, negotiations require genuine attempts from both parties to reach
an agreement, rather than merely rejecting each other’s competing views.154
Applying such standard to this Case, DORTA has never attempted any negotiations prior to the
harvest of Yak and never once reduced the number of Yak harvested despite multiple Aurokan
149
Bolivia, Law of Ancestral Medicine of 2013.
150
Switzerland, The Nature and Cultural Heritage Act, art.23n;
151
Australia, Environment Protection and Biodiversity Conservation Regulations of 2000, Part
8a.
152
153
Bonn Guidelines on Access to Genetic Resources and Fair and Equitable Sharing of the
Benefits Arising out of their Utilization, CBD COP 6 Decision VI/24, UNEP/CBD/COP/6/6, 31
October 2001, Art.27; UNDRIP, supra n.29, art.19; Human Rights Council Expert Mechanism
on the Rights of Indigenous Peoples, Draft Study on FPIC: A Human Rights Based Approach,
Study of the Expert Mechanism on the Rights of Indigenous Peoples, 11th Sess,
A/HRC/EMRIP/2018/CRP.1 (2018) ¶15 .
154
Case Concerning Application of the International Convention on the Elimination of All
Forms of Racial Discrimination (Georgia v Russian Federation), [2011] ICJ Rep 70 at 157.
32
protests.155 This shows a lack of any genuine attempt to reach agreement. Therefore, DORTA's
harvest of Yak violated Article 7 of the Protocol due to insufficient negotiations.
d. Rakkab cannot preclude its wrongfulness by relying on the absence of access
regulation in Aurok and Rakkab
The phrase "in accordance with domestic law" under Article 7 cannot be interpreted to exempt
States from violation by simply relying on the absence of domestic access regulation. Firstly, the
Protocol's object and purpose is to effectively implement its provisions. Article 7 stipulates a
standard on the appropriate access of TKGR that stands on its own regardless of domestic law.156
If domestic law can override this, it would essentially render Article 7 dysfunctional, making it
ineffective. At best, such phrase only accords States with flexibility to regulate the procedures of
TKGR access within the domestic realm.157
Secondly, Article 7 must be contextually interpreted alongside CBD, its parent treaty. The CBD
stipulated that access of TKGR is “subject” to each States’ national legislation,158 creating a
loophole that allows States to hide behind their national legislation. As such, it is reasonable to
interpret the change of wording from “subject” to "in accordance with" in the Protocol, as an
indication of the drafter’s desire to create a self-standing standard detached from national
155
Compromis, ¶31,39.
156
See Section IV.B.1.c. above; Kabir Bavikate and Daniel F. Robinson, “Towards a Peoples’
History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit
Sharing” (2011) 7:1 LEAD J. at 45.
157
Nagoya Protocol,supra n.27, Preamble.
158
CBD, supra n.25, art.8f.
33
legislations. Thus, Rakkab cannot argue that the absence of domestic regulation in Rakkab and
Aurok precludes a violation of Article 7 of the Protocol.
2. The utilization of TKGR violates Article 5(5) of the Nagoya Protocol
Article 5(5) of the Protocol requires “benefits arising from the utilization of TKGR are shared
with indigenous…communities holding such knowledge".159 Here, Aurok submits that
DORTA’s: (a) research activities; and, (b) manufacturing of Gallvectra, constitutes utilization of
TKGR that creates benefit-sharing obligations. The absence of any benefit-sharing by DORTA
constitutes a violation of Article 5(5) of the Protocol.
a. DORTA’s research activities constitutes utilization of TKGR
Under the plain meaning of Article 5(5), utilization of TKGR refers to “research activities”
towards genetic resources.160 In this Case, research activities were conducted when DORTA
exploited the initial knowledge of the Aurokan TKGR as reference for laboratory studies to
isolate the Lustuk Enzyme from the Yak’s gallbladder. This enabled the mass manufacturing and
eventual commercialization of Gallvectra, netting DORTA billions in profits annually.161
Accordingly, the profits from selling Gallvectra constitutes eventual benefits that arise from
DORTA's research, which must be shared with the Aurokans under Article 5(5) of the Protocol.
159
Nagoya Protocol, supra n.27, art.5(5).
160
Nagoya Protocol, supra n.27, art.2(c).
161
Compromis, ¶¶12-13.
34
b. DORTA’s manufacturing of Gallvectra constitutes utilization of TKGR
Under Article 5(5), utilization also refers to “development activities,” 162 which in the context of
pharmaceuticals, includes the manufacturing of drugs.163 In light of this, the manufacturing of
Gallvectra shall also constitute utilization of TKGR, because: firstly, Article 15(7) of the CBD
affirms that benefit-sharing is required for manufacturing of products inspired from TKGR;164
secondly, various State practices,165 including India, which forced a company to share profits
from the manufacturing of castor oil products inspired by Indian communities’ knowledge.166
This interpretation is reasonable, because excluding manufacturing from the definition of
utilization cuts out the most lucrative phase of product development from the benefit-sharing
regime.167 Similarly, the manufacturing of Gallvectra constitutes utilization of TKGR,168 which
162
Nagoya Protocol, supra n.27, art.2(c); Monique van Vegchel, Implementation of Nagoya
Protocol: A Comparison between the Netherlands, Belgium and Germany, (V.O. Patents and
Trademarks, 2018), at 25.
163
David Taylor, “The Pharmaceutical Industry and the Future of Drug Development”, in R. E.
Hester and R. M. Harrison, (eds), Issues in Environmental Science and Technology, (Royal
Society of Chemistry, 2015), at 13.
164
CBD, supra n.25, art.15(7).
165
Brazil, Law No. 13.123 on Access and Benefit Sharing of Genetic Resources and Associated
Traditional Knowledge, 20 May 2015; India National Biodiversity Authority, Guidelines on
Access and Benefit Sharing, 2014; Denmark, Act No. 1375, 2012; Malaysia, Law on Access and
Benefit Sharing, 2017, art.1(4).
166
Vijay Pinjarkar, “Castor Units will have to Share Benefits with Locals”, the Times of India,
(20 November 2015), online: <https://timesofindia.indiatimes.com>; Shalini Bhutani & Kanchi
Kohli, Litigating India’s Biological Diversity Act: A Study of Legal Cases, (Foundation for
Ecological Security: India, 2016) at pp.16-17.
167
Murray Lee Eiland, “Patenting Traditional Medicine” (2007) 89 J. Pat. & Trademark Off.
Soc'y 45 at 46.
168
35
requires the sharing of Gallvectra’s profits with the Aurokans. Hence, the lack of any benefit-
sharing to Aurokans violates Article 5(5) of the Protocol.
C. COMMERCIALIZATION OF GALLVECTRA CONSTITUTES UNFAIR COMPETITION THAT
VIOLATES ARTICLE 10BIS OF PARIS CONVENTION
Article 10bis of the Paris Convention prohibits acts of competition contrary to honest practices in
commercial matters,169 even towards competitors engaging in different industries.170
In INS v. Associated Press, the court deems that Associated Press unfairly competed against INS
by imitating and publishing INS’ newspaper, which directly caused a loss of profits from the
sales of such newspaper.171 In that same sense, the Aurokan traditional knowledge cannot be
used to detriment the Aurokans’ own commercial use.172
169
Paris Convention, supra n.27, art.10bis(2).
170
Edson Beas Jr. Rodrigues, “Using the TRIPS Agreement’s Unfair Competition Clause to
Curb the Misappropriation of Biological Resources, Traditional Knowledge and Expressions of
Folklore in User Countries”, (2014) 4:2 Queen Mary Journal of Intellectual Property 139 at 143;
United International Bureau for the Protection of Intellectual Property, Guide to the Application
of the Paris Convention for the Protection of Industrial Property, WIPO Publication No.611, at
144.
International New Service v. Associated Press, 248 US 215 (1918) {INS v AP]; L’oreal S.A. v.
171
Bellure N.V. and others, [2007], EWCA Civ 968.

172
Graham Dutfield, Protecting Traditional Knolwedge Pathways to the Future, (Switzerland:
International Centre for Trade and Sustainable Development, 2006) at 27; INS v AP, supra n.171.
36
In this Case, Aurokan Traditional Knowledge is commercialized in Aurok’s tourism industry.173
DORTA’s harvest of Yak and commercialization of Gallvectra resulted in the declining
population of Yak to the extent that northernmost Aurokans could not perform cultural activities
related to the Yak.174 Hence, the Yak as a core component of Aurokans’ tourism industry was
detrimentally affected due to Gallvectra’s commercialization. Consequently, this commercial
detriment constitutes unfair competition within the ambit of Article 10bis of Paris Convention.
D. IN ANY EVENT, COMMERCIALIZATION OF GALLVECTRA CONSTITUTES UNJUST
ENRICHMENT
Pursuant to the customary prohibition of unjust enrichment, one party may demand
compensation from unjust enrichments when one party is enriched at the expense of another
without any legal justification.175 This custom is evinced from widespread State practices,176 and
affirmed by international tribunals.177
173
Compromis, ¶7.
174
Compromis, ¶42.
175
Ana T. Vohryzek-Griest, “Unjust Enrichment Unjustly Ignored: Opportunities and Pitfalls in
Bringing Unjust Enrichments Claims under ICSID”, (2008) 31:3 Loy. L.A. Int'l & Comp. L.
Rev. at 16.
176
France, Civil Code, art.1382; Austria, Allgemeines Burgeliches Gesetzbuch, art.1041;
Switzerland, Swcheizerishes Obligationenrecht, arts.62-67; Netherlands, Burgerlijk Wetboek,
Book 6 art.162; German Civil Code, s.812(1).
177
Saluka Investments B.V. v The Czech Republic, [2006], Partial Award, PCA, ICGJ 268 ¶93;
Sea-Land Services Inc v Iran, [1984], Award, Iran-US Claims Tribunal Case No. 33, ¶149.5.
37
In John v. U. Cal, Judge Broussard opined that a party whose assistance is crucial to the
production and subsequent commercialization of a medicine is entitled to compensation under
unjust enrichment if the manufacturer of that medicine does not share its profit with said party.
178
Similarly, the sales of Gallvectra have enriched DORTA by billions each year.179 However,
despite the Aurokan traditional knowledge being paramount to the creation of Gallvectra,
DORTA has never shared any profits from the sales of Gallvectra. In fact, the Aurokans can
barely practice Yak hunting due to the declining population of Yak. Hence, the profits taken
from the sales of Gallvectra constitutes enrichment unjustly taken.
E. CONSEQUENTLY, RAKKAB SHALL COMPENSATE THE AUROKANS THROUGH PROFITS
REALIZED FROM SALES OF GALLVECTRA
As a result of these violations of international law occurring from the appropriation and
exploitation of Aurokan traditional knowledge, reparations must be given. Compensation shall
be the appropriate reparation for damages that cannot be repaired from restitution.180 Since
appropriations and exploitations of knowledge cannot be restituted,181 Aurok demands
compensation through profits derived from sales of Gallvectra.
178
Moore v. Regents of University of California et al, 51 Cal. 3d 120 (1990).
179
Compromis, ¶¶21,38
180
ARSIWA Commentary, supra n.3, art.36¶3
181
Chorzow Factory (Germany v Poland) (1928), PCIJ (Ser A) No 17 at 55.
38
PRAYER FOR RELIEF
For the foregoing reasons, the Applicant respectfully requests this honorable Court to find,
adjudge, and declare that:
I. Rakkab is responsible for the internationally wrongful acts described in sections (II-IV),
below, because DORTA’s actions are attributable to Rakkab, or in the alternative,
Rakkab is responsible for its own failure to prevent DORTA from committing those
wrongful acts;
II. The harvesting of Yak in Rakkab violates Rakkab’s international obligations relating to
the protection of endangered species and the environment, including those under relevant
conventions, and Rakkab is obliged to end Yak harvesting on its territory;
III. The harvesting of the Yak in Rakkab violates the cultural and religious rights of the
people of Aurok, and Rakkab must prohibit such hunting forthwith; and
IV. Rakkab must pay Aurok a portion (to be determined in subsequent proceedings) of the
profits realized from the sales of the drug Gallvectra, because the appropriation and
exploitation of traditional knowledge belonging to the Aurokan people without
compensation is inconsistent with international law.
Respectfully submitted,
AGENTS OF THE APPLICANT
39

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THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

THE 2019 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION

CASE CONCERNING THE KAYLEFF YAK

THE STATE OF AUROK

THE REPUBLIC OF RAKKAB

MEMORIAL FOR THE APPLICANT

TABLE OF CONTENTS .............................................................................................................. i

TREATIES & CONVENTIONS

UNITED NATIONS DOCUMENTS

ACCOBAMS, 6th Mtg, Taking of Cetaceans, Dolphinaria, and Quasi-Dolphinaria: A Legal

INTERNATIONAL COURT OF JUSTICE CASES

INTERNATIONAL & ARBITRATION CASES

MUNICIPAL LAWS & CASES

with Corrections and Clarifications followed).

utmost good faith.

The State of Aurok requests the Court to adjudge:

Whether DORTA’s actions are attributable to Rakkab, or in the alternative, Rakkab is

conventions, and Rakkab is obliged to end Yak harvesting on its territory;

of Aurok, and Rakkab must prohibit such hunting forthwith; and

Aurokan people without compensation is inconsistent with international law.

domesticated the Yak in captivity, despite some attempts.

illness and confer significant health benefits.

DORTA is a pharmaceutical company, initially established by Rakkab as the State Department

Gallvectra is a prescribed medicine manufactured by DORTA to treat insulin-related diseases. It

without sharing any of its profits to Aurokans.

THE HARVEST OF YAK

harvested in previous years.

THE ENDANGERMENT OF YAK

DORTA continues to harvest the Yak even today.

coincided with the start of DORTA’s harvest.

of DORTA’s harvest, fearing “the end of Aurokan life as we know it.”

AUROK’S YAK PROTECTION ACT

Secondly, DORTA’s harvest of Yak and commercialization of Gallvectra exercises

not be done by any regular private entity other than DORTA.

to Rakkab’s authorization and mandates.

consequences of DORTA’s actions because it has failed conduct reasonable measures of

DORTA’s harvest of Yak.

DORTA’s harvest of Yak violates international obligations relating to the environment.

and exceeds the Yak’s reproduction rate.

extraordinary circumstance, but merely to fulfill commercial demand.

Secondly, DORTA violates Aurokans’ indigenous right to be consulted throughout DORTA’s

traditional knowledge. DORTA’s harvest of Yak, manufacturing, and commercialization of

Firstly, Aurokan traditional knowledge constitutes indigenous property under customary

violates the Nagoya Protocol.

Thirdly, DORTA’s commercialization of Gallvectra constitutes unfair competition. DORTA has

taken the fruits of Aurokan traditional knowledge by commercializing Gallvectra to the

detriment of the Aurokans’ tourism industry.

Lastly, DORTA’s commercialization of Gallvectra constitutes unjust enrichment because

despite the contribution of their traditional knowledge.

I. RAKKAB IS RESPONSIBLE FOR THE INTERNATIONALLY WRONGFUL ACTS

DESCRIBED IN CLAIM (II)-(IV), infra, BECAUSE DORTA’S ACTIONS ARE

ATTRIBUTABLE TO RAKKAB, OR IN THE ALTERNATIVE, RAKKAB IS

RESPONSIBLE FOR ITS OWN FAILURE TO PREVENT DORTA FROM

COMMITTING THOSE WRONGFUL ACTS

DORTA is a State-owned Rakkabi pharmaceutical company that manufactures and sells

Gallvectra, a medicine made from the gallbladder of Kayleff Yak (“Yak”). 1

Rakkab has failed to prevent DORTA’s harvest of Yak.

A. DORTA’S HARVEST OF YAK AND COMMERCIALIZATION OF GALLVECTRA ARE

ATTRIBUTABLE TO RAKKAB UNDER THESE ALTERNATIVE GROUNDS