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THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION
1975
The Peace River Basin Case,

New Helois v. Karma, 1975.
Best Written Memorial

(Respondent)
National Award University of Texas School of Law #26

NO. 1975
IN THE
INTERNATIONAL COURT OF JUSTICE-AT THE PEACE PALACE
THE HAGUE, NETHERLANDS
THE STATE OF NEW HELIOS,

Applicant
THE STATE OF KARMA,

Respondent
APRIL TERM
1975
On Submission to the
International Court of Justice
COUNTER-MEMORIAL FOR THE RESPONDENT
George L. Flint, Jr.

Daniel J. Foucheaux, Jr.
Michael G. Mullen
April 26, 1975 Agents for Respondent
TABLE OF CONTENTS
Page
Index of Authorities .......... iii
Jurisdiction . . . . . . . . . . . . . .i........ 1
QuestionsPresented . . . . . . . . ............ 2
Statement of Facts .............. . 2
Summary of Argument . . . ......... ..... 5
Argument and Authorities .................. 6
I. KARMA'S ACTS HAVE NOT BREACHED -THE 1923 TREATY.

WITH NEW HELIOS . ...... . o 6
A. The Treaty objectives of amity, friendship,

and economic cooperation include the right.
of the underdeveloped Karma to develop its
resources without undue restraint ....... 6
B. The ordinary meaning of the Treaty permits

thermal discharges by Karma's nuclear power
plant into the Lower Peace River ....... 8
C. The ordinary meaning of the Treaty permits

waste discharges of Karma's paper mill into
the Upper PeaceRiver . . ............ 10
D. The doctrine of rebus sic.stantibus nulli-
fies'the anti-pollution restriction of the
Treaty o o...12
II. THE DISCHARGE FROM THE PAPER MILL AND NUCLEAR

POWER PLANT DOES NOT BREACH.KARMA'S OBLIGA-
* TIONS UNDER GENERAL PRINCIPLES OF: INTERNATIONAL
- LAW.. .. . ....... 13
A. . Under the principle of state sovereignty

international law does not recognize lia-
bility where a state's use of its natural
resources affects another state. . . . . . . . 13
B. The principle of equitable utilization per-

mits the discharge from Karma's paper .mill
and nuclear power plant ...... ........ 16
ii
Page
III. KARMA IS NOT OBLIGATED UNDERNATIONALLAW TO
MAKE REPARATIONS TO NEW HELIOS FOR THE EFFECTS
OF THE DISCHARGE INTO THE PEACE RIVER . . . . . . .19
A. No compensable damages have been suffered
- by New Helios under international law . . . . . . 20
1.- Purification expenses incurred by New

Helios and Lower Peace Brewery are
not compensable ............ 20
2. The outbreak of typhoid fever in New
Helios is not.a compensable damage . . . . . 22
3. Future expenditures for water cooling

. and purification are not compensable . . . . 24
B. No future restrictions on Karma's conduct

are warranted under international law ........ 24
1; The 1923 Treaty contemplates no prohi-

bition of.Karma's conduct in present
circumstances ................... 25
2. The existing customary regime does not
prohibit the discharge of wastes into
the Peace River ..... ............... .25
3. Even if existing conventional .and cus-
tomary international law permits an
order enjoining Karma's discharge of
wastes, no present or future damage to*
New Helios warrants.it ..... ........... 26
C.. Except under.the 1923 Treaty, Karma has no
duty under international law to negotiate
a regime for regulating the -use of bound-
ary waters ....... .................... 27
IV. THE COURT SHOULD NOT INDICATE INTERIM MEASURES
.OF PROTECTION DIRECTED AT KARMA, PENDING FINAL
JUDGMENT . ........................... 28
Conclusion . ........ . . . .. . . . . . ..... 29
Certificate ............ ........... 30

INDEX OF AUTHORITIES
Page
Treaties
Treaty between the Dominican Republic and Haiti, 105

L.N.T.S. 216 (1929) . . . .......... . . . 9
Treaty between Germany and Lithuania, 89 L.N.T.S. 337

(1928) . . . . . . . . . . . . . . . . . . . . . . .9
Treaty Relating to Boundary Waters and Questions Aris-

ing Between United States and Canada, Jan. 11,
1909, 36 Stat, 2448; T.S. No. 548 ............. 10
U.N. CHARTER, art. -55, para. a .............. ...... 6
Cases.
. . . . . .. . . . . . . 15
Asylum-Case, [1950] I.C.J. 26 6 . .
Certain German Interests in Polish Upper Silesia, [1925]

P.C.I.J., ser. A, No. 6 .............. 24
Chorzow Factory Case (Indemnities), [1927] P.C.I.J.,

set. A, No. 12...... ......... . . . . 28
Chorzow Factory Case (Jurisdiction), [1927] P.C.I.J.,

ser. A, No. 9 ....... ................. 9, 10
Chorzow Factory Case (Merits), (1928] P.C.I.J., ser. A,

No. 17............. . . . . . . . 24
Corfu Channel Case (Merits), [1949] I.C.J. 4 . .......... 22
Denunciation of the Treaty of 1865 Case, [1927] P.C.I.J.,

set. A, No. 8 ...... ............ 28
Fisheries Case (United Kingdom v. Norway), [1951] I.C.J.

116 . . . . . . . . . . . . . ... . . . . .. . 15, 19
Fisheries Jurisdiction Case (Federal Republic of Germany

v. Iceland) (Merits), (1974] I.C.J. 175 ...... 20
Fisheries Jurisdiction Case (Jurisdiction), [1973]

IC.J. 3 .. ...... ... ........ 6
Fisheries Jurisdiction Case (United Kingdom v. Iceland)

(Merits), [1974] I.C.J. 3 .............. 15, 19
iv
Page
Jaworzina Case, [1923] P.C.I.J., ser. B, No. 8 ... ...... 7
Lac Lanoux Arbitration (France v. Spain), 24 I.L.R.
101 (1957) . .... 8
Maninat Case (1905), Report of the French-Venezuelan

Mixed Claims Commission of 1902 (Prepared by
J. Ralston 1906) ....... ...... 22
Mavrommatis Jerusalem Concessions Case, [1925] P.C.I.J.,

ser. A, No. 5 ........ . . . . 20
North Atlantic Coast Fisheries Case, Hague Court Re-
ports (Scott) 143 (Perm. Ct. Arb. 1916) ....... o 10
North Sea.Continental Shelf Cases, (1969] I.C.J. 3 . . 12, 15
Nuclear Tests Case (Australia v. France) (Interim
Measures of Protection), [1973] I.C.J. 99 . . . . . 28
Responsibility of Germany for Acts Committed after

July 31, 1914, and before Portugal Entered
the War, 2 U.N.R.I.A.A. 1040 (1930) ........ 22
Second Membership Case (Advisory Opinion), [1950]
I.C.J. 4 .......... ..................... 6
Southwest Africa Case, Second Phase, (1966] I.C.J. 4 . . . 24
S.S. Lotus Case, [1927] P.C.I.J., ser. A, No. 10 . 11, 14, 15

S.S. Wimbledon Case, [1923] P.C.I.J., ser. A, No. 1 . 7, 9, 10
Trail Smelter Arbitration, 3 U.N.R.I.A.A. 1905

(1941) ...... ................ . 16, 21, 24, 26
Treatment of- Polish Nationals in Danzig Case, [1932]

P.C.I.J., ser. A/B, No. 44. . .......... 9, 10
United States-Germany Mixed Claims .Commission Admin-

istrative Decision No. II, 7 U.N.R.I.A.A. 23
(1923) ....... ...................... 22
United States Nationals in Morocco Case; [1952]

I.C.J. 176 ...... ...................... 6
Treatises and Digests
F. BERBER, RIVERS IN INTERNATIONAL LAW (1959) ........ ... 16
H. BRIGGS, THE LAW OF NATIONS (1952) .............. 14, 15

V
Page
B. CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY

INTERNATIONAL-COURTS AND TRIBUNALS (1953) . .. . . 20
THE INTERNATIONAL LAW OF POLLUTION (J. Barros & D.

Johnston eds.. 1974) ................ 16, 24
H. MALMGREN, INTERNATIONAL ECONOMIC PEACEKEEPING IN

PHASE-II (1972) ... . .............. .... 18
A. McNAIR, LAW OF TREATIES (1961)....... ........... .. 11
G. OHLIN-, FOREIGN AID POLICY RECONSIDERED (1966) .. . . . . 18
1 L. OPPENHEIM, INTERNATIONAL LAW (8th ed. H. Lauter-

pacht 1955) ................... .. 14
2 S. ROSENNE., THE LAW AND PRACTICE OF THE INTERNATIONAL

COURT (1965) ....... ................... .... 20
I. TAYLOR & J. KNOWELDEN, PRINCIPLES OF EPIDEMIOLOGY

(1957) ..................... ... 23
W. VERWEY, ECONOMIC DEVELOPMENT., PEACE AND INTERNATIONAL

LAW (1972) ........ .................... .. 19
WATER AND.WATER RIGHTS (R. Clark ed. 1967) . ...... . 20, 27
M. WHITEMAN, DAMAGES .IN INTERNATIONAL LAW. (1937) . ... 21, 24
C. WINSLOW, MAN AND EPIDEMICS (1952).... ............ . 22
Journals
Bains, The Diversion .of International Rivers, 1 INDIAN J.

.INT'L L. 38 (1960) .... ................ 14
Bourne,. Pollution of International Rivers and Lakes,

21 U. TORONTO L.J. 193 (1971)........ ....... 17
Bourne, The Right to Utilize the Waters of International

-. Rivers, 3 CAN. Y.B. INT'L L. 188 (1965) ....... .. 20
Comment, Thermal Discharges: A Legal Problem, 38 TENN.

L. REV. 369 (1971) ............... ........ 8
Goldie, International Principles of Responsibility for

Pollution, .9 COLUM. J. TRANSNAT'L L. 283 (1970) . 14
Jackson,- The-Dimensions of International Pollution, .50

OREG.-L. REV. 235 (1971) .... ............. . 27
vi
Page
Rubin, Pollution by Analogy: The Trail Smelter Arbi-

tration, 50 OREG. L. REV. 259 (1971) . ...... 16
Utton, International Water Quality Law, 13 NATURAL.

RESOURCES J. 282 (1973) 17
Yn:tema., The Treaties with Germany and Compensation

for War Damage, 24 COLUM. L. REV. 153 (1924) . . . 21
Miscellaneous
I.C.J. STAT. art. 36 . . ................. 1
I.C.J. STAT-. art. 37 .......... ................... 1
I.C.J. STAT. art. 41 . . ................ 28
I.C.J. STAT. art. 61 ....... ................... . 28
INSTITUT DE DROIT INTERNATIONAL, 49 ANNOAIRE (1961) . . . . 28
International Joint Commission (United States and

Canada).,. Report on the Pollution of Bound-
-ary Waters (1951) ...................... 23
INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FIFTY-
SECOND CONFERENCE, HELSINKI: (1966) . . . . 16, 17, 18
INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FORTY-

. . EIGHTH CONFERENCE, NEW YORK (1958)... ....... ... 17
Manner-,: Water, Pollution in International Law, U.N.

Doc, WATER POLL./CONF./12 (1960) .. ......... . 15
A. McLAUGHLIN, SEWAGE POLLUTION OF INTERSTATE AND

INTERNATIONAL WATERS WITH SPECIAL REFERENCE
TO THE SPREAD OF TYPHOID FEVER (Treas. Dep't
Hygienic.Laboratory Bull. No.. 77, 1911) ....... .. 23
21 OP..ATT'Y GEN. 274 (1895) ........ ............. . 14
21 U.N. ECOSOC 5, U.N. Doc. E/3066 (1958) .. ......... ... 18
United Nations Conference on the Human-Environment,

Development and Environment, U.N. Doc..
A/Conf. 48/10 (1971) ..... ............... ... 18
Vienna Convention on the.Law of Treaties, U.N. Doc.

A/Conf, 39/27 (1969). ............. 6, 7, 12.
vii
Page
WORLD HEALTH ORGANIZATION,- WATER POLLUTION. CONTROL

IN DEVELOPING COUNTRIES -(Technical: Rep. Ser.
No. 404.,: 1968) . . .. . . . . . 0
- 23
NO. 1975
IN THE
INTERNATIONAL COURT OF JUSTICE
THE STATE OF NEW HELIOS,

Applicant
Vo
THE STATE OF KARMA.,

Respondent
APRIL TERM
1975
COUNTER-MEMORIAL FOR THE RESPONDENT
JURISDICTION
Karma and New Helios have agreed to submit their dispute
to the International Court of Justice under paragraph 3 of Arti-
cle IV of .the 1923 Treaty of Amity, Friendship and Economic Co-
operation. The Court may hear the case pursuant to Article 36 and
Article 37 of the Statute of the :International Court of -Justice.
I.C.J. STAT. art. 36, para. 1; art. 37.

QUESTIONS..PRESENTED
I.; WHETHER ..
THE MISCHARGE OF.WASTES INTO .THE -UPPER AND: IOWER
PEACE RIVERS- .CONSTITUTES A BREACH -OF .THE 19.23. TREATY FOR
WHICH KARMA .IS RESPONSIBLE.
-1 . .. -WHETHER .THE DISCHARGE OF. WASTES, INTO -THE .UPER AND. 1OWER
PEACE -.RIVERS .CONSTITUTES A .BREACH -OF .P.RINCIP.LES OF .INTER-
NATIONAL -.LAW .FOR WHICH KARMA-.IS RESPONSIBLE.
.... III. -.WHETHER .KARMA; IS OBLIGATED ..TO. MAKE REPARATIONS TO NEW

., HELIOS.
IV-. WHETHER THE COURT SHOULD INDICATE :INTERIM MEASURES OF

.: .- PROTECTION.
STATEMENT .OF-FACTS.
The Upper -Peace River,. situated wholly within the .sover-
eign -territory of the state of Karma,. flows into .the Internation-
al Lake, which borders .Karma .on the -south .and .the -State of New
Helios .on the .north.. The Lake empties into the Lower -Peac-e River
which runs along -the boundary .between-the -two .States before re-
entering .Karma-and .emptying into .the .ocean.- (-See map.)
.Ten years .ago -a -private-company in Karma, -on the -recom-
mendation .of the -World Development Authority (WDA)., opened a.
large pulp -and paper mill on .the shores of .the Upper .Peace. The
mill .has been -avital .contribution.to the development of .Karma's
northern .Wilderness.Region.. -The .WDA-further-recommended that the
mill .company construct pollution control .devices to treat the
wastes from .the.mill and the raw .sewage from .the surrounding
shantytown, but to date this has-proved .to be financially impos-
sible. The .company has promised to begin providing suitable
housing .to alleviate the sewage .as soon .as .possible, .but no action
has -been -taken.. Since its-construction the mill complex .has dis-
. charged wastes and sewage into the Upper Peace.. .For.many..

years
International Lake has been-the source-of drinking water.for New
Helios-capital, but othe mill effluents'have made.the water un-
drinkable-.without prior purification. The Lower Peace Brewery, a
major .industry in-New Helios,. uses .the water-in the-.production of
beer and ale. Both.the State-of New Helios and .the Brewery have
already.purchased .purification equipment; .if .the pollution becomes
more serious, New Helios will have .to install further .devices at
a cost of-.$2,000,000, and the brewery may have to seek a new wa-
ter source...In addition, in 1970 reports of an increase of
typhoid forced .the .closing .of .the.beaches around New Helios'
capital.
.... -n .iR70,. without .any notification to New Helios,. Karma
began :constructing a huge nuclear power plant at the mouth of the
* Lower Peace River.. The plant, a state-owned corporation, was
.constructed .to meet -energy needs In !Karma'-s capital, located
about.ten miles .to the south. In May of 1974, the plant began
..
operation.at .ten percent-capacity, emptying heated water used
for.cooling into the-river. At that time some.of the .citizens of.
-New Helios -and .the brewery protested that the heated water would
affect their uses of the river. If the plant becomes fully opera-
tional, .the brewery will be forced either to install cooling
lagoons at a cost of $900,000 or to seek a new water source.
New -Helios made-several protests concerning the power.
plant .to .the.Government of Karma,.and Karma .replied by asserting
her sovereign-right .to develop in .any manner -she -chooses. Not
until July-of-1974 did .NewHelios .lodge .aformal protest,.stating
that .the .discharge into the Peace River system violates the 1923
4
Treaty of Amity, Friendship and Economic Cooperation (Appendix).
Karma refuses to acknowledge any violation; citizens groups in
both countries are threatening boycotts.
Karma and.New Helios have agreed to submit the dispute to
the International Court of Justice pursuant to paragraph 3 of
Article IV of the 1923 Treaty. Defenses of sovereign immunity
has
and exhaustion of local remedies have been waived; the Court
granted the request that a three-judge chamber hear the case.

SUMMARY OF ARGUMENT
Karma.has not breached the 1923.Treaty with New Helios.

Development of Karma's resources is in.accord with the Treaty's
stated purpose. .The .ordinary meaning .of the .Treaty's language
doesnot forbid.discharge of wastes from the mill and power
plant. Moreover, the doctrine .of rebus sic .stantibus nullifies
the.anti-:pollution provision.
..Karma has-not .violated general-principles of international
law by allowing the-discharge from the mill and power plant.
Under the principle of state sovereignty .and the Harmon-Doctrine
states.are .not.liable for the consequences of their use of inter-
national rivers. Even if the Harmon.Doctrine is not customary
international law, New Helios cannot prove that any other rule of
customary..international.law restricts Karma's use -of her terri-
torial waterways. If such use is.restricted .by customary inter-
national law, it must-.be through an application of the doctrine
of-equitable utilization. The discharge from the mill and power
plant are-.equitable uses under international law.
- Krma is not .obligated .to make reparations to New Helios.
New-Helios cannot-prove that she has suffered any material dam-
ages.for which compensation is required. The Court should not-

order.Karma to.cease and.refrain from discharging wastes into the
Peace-.River.... There is no general duty to negotiate a regime for
the disposal of wastes in the Peace River system.
• - The Court should not indicate interim measures of protec-
tion pending-.final...udgment. Any such measures that the Court

might indicate would have-the effect of a judgment, and would not
preserve the .rights of Karma. Moreover, an order requiring abate-
ment. or cessation of .waste .discharge would cause. great ha~rdship
toKarma and her-citizens.
ARGUMENT AND AUTHORITIES
I. KARMA'S ACTS HAVE NOT -BREACHED THE 1923 TREATY WITH NEW
.HELIOS.
Application .of three principles -of treaty interpretation
demonstrates that Karma's.resource development does not .violate-
the anti-pollution provision of the 1923 Treaty. First, the
Court must.interpret the Treaty.in light of its .stated purpose.
United.States Nationals .inMorocco.Case, [1952] I.C.J. 176, 196;
Vienna.Convention on the Law of Treaties, art 31, U.N. Doc.'
A/Conf. 39/27 .(1969). [hereinafter cited as Vienna Convention].
Second, the Court.must..give .the Treaty .terms.their ordinary mean-
ing.... Second Membership Case.(Advisory.Opinion), [1950] I.C.J. 8;
Vienna Convention, art. 31. Third, .the rebus sic stantibus doc-
trine nullifies the Treaty's antipollution provision. Fisheries
Jurisdiction Case (Jurisdiction), [1973] I.C.J. 3,17; Vienna
Convention,. art. 62.
A. .The.Treaty objectives of amity, friendship, and eco-

.nomic,.cooperation.include.-the right of the .under--
developed Karma to develop its resources without
undue restraint.
The-.interpretation of the anti-pollution clause must.
agree with.the.purposes ofthe 1923 Treaty as stated in its title--
to foster amity, friendship, and economic cooperation.. Economic
cooperation .encompasses economic development. U.N. CHARTER, art.
55, .para. a. Two techniques of treaty interpretation .indicate

the Treaty permits pollution resulting from economic development.
First, the Court may interpret a treaty article by exam-
ining subsequent agreements .between the same parties regarding
its application.. Jaworzina Case, [1923] P.C.I.J., ser. B, No. 8,
at 38; Vienna Convention, art. 31. The United Nations General
Assembly, to which both Karma and New Helios belong, has declared
that "States have the duty to co-operate . . . in the promotion
of economic growth . . . especially that of the developing coun-
tries." G.A. Res. 2625, 25 U.N. GAOR, Supp. 28, at 122-24, U.N.
Doc. A/8082 (1970). Article I of the 1923 Treaty expresses this
obligation (Appendix). Karma uses the Peace River to provide a
higher standard of living for its Wilderness inhabitants and to
support its developing manufacturing industry. In contrast, New
Helios' interpretation of the anti-pollution restriction violates
the purpose of economic cooperation by requiring protective mea-
sures so financially prohibitive as to restrict Karma's develop-
ing industry and threaten the standard of living now enjoyed by
the inhabitants of Karma's Wilderness Region.
Second, the Court uses other provisions of the same
treaty to determine the parties' intent. S.S. Wimbledon Case,
[1923] P.C.I.J., ser. A, No. 1, at 23. Article II contains the
limiting language of "in keeping with the general aim of . . .
economic.cooperation." Article III of the 1923 Treaty prohibits
only unreasonable conditions placed on navigation. By analogy,
Article II prohibits only.unreasonable pollution, inconsistent
with economic-.development. The alternative to Karma's present
use of the.Peace River is the construction of expensive purifica-

tion and cooling lagoon facilities--neither of which she can eco-
nomically afford to build. The paper mill was constructed upon
recommendation of .the World Development Authority (R. 2), and the
equipment.of the nuclear power plant comes from a .thlrd nation
under .strict .international safeguards.. (R. 3). This demon-
strates .that, consistent with the 1923 Treaty, Karma is develop-
ing economically by the most reasonable means available.
3... The ordinary meaning of the. Treaty permits thermal

. ..... discharges by Karma '.s.nuclear power plant into the
Lower Peace River.
Article II(i) of the 1923 Treaty states that "neither
state shall-pollute . . . so as to injure . . . ." (emphasis
added). Application of the ordinary meaning rule to Article
II(i). reveals that the thermal discharges.comply.
1. The thermal discharges do not constitute pollu-

tion.
The word "pollute" generally peans seriously to contami-
nate water by mixing it with other matter in such a fashion as
to destroy its purity. The addition of heated water to the river
does not change .the river's chemical content or affect its
purity.. It -only adds energy to the river's water, not matter.
Comment, Thermal Discharges: a Legal Problem, 38 TENN. L. REV.
369, 379-80 (1971). In the Lac Lanoux Arbitration (France v.
Spain), 24 I.L.R. 101, 123 (1957), the arbitral tribunal made the
distinction between a change of chemical composition and a change
in temperature by listing them separately.. Chemical discharges
constitute pollution while thermal discharges only hinder the uses
of the .water.
..... Analogizing to other treaties-reinforces the ordinary
meaning result.. ...Wimbledon,. supra at 25-28; cf. Chorz6w Factory
Case (Jurisdiction), [1927] P.C.I.J., ser. A, No. 9, at 22. If
New Helios and Karma intended .to include thermal discharges .with-
in the prohibition, they would have used language liiiting the
states to "just. and equitable uses.."' Eg., Treaty between the
Dominican Republic and Haiti, 105 L.N.T.S. 216, 225 (1929).- In-
stead, they used language prohibiting material discharges into
the river..., Treaty between Germany and Lithuania, 89 L.N.
T.S. 337, 361 (1928). The Lac Lanouxtribunal recognized this
distinction between "material discharges" and "equitable uses" by
suggesting that either a change in chemical composition or a
change in.temperature affecting the water's use would have vio-
lated.the ."equitable-use"-treaty involved in that.dispute. New
Helios .and.Karma,.*therefore, intended to exclude "thermal dis-
charges'" from the .prohibition.
2. The thermal discharges do not cause any injury to

health or property in New Helios.
Only pollution that leads to injury violateg the anti-
pollutionprovision. Since the plant has-never operated above,
ten percent of capacity, New Helios has .not yet sustained any in-
jury from the .thermal discharge. Under customary international
law, however, an act.not literally a breach may yet constitute a
breach of .the good faith requirement of a treaty and hence be a
violation .Treatment of Polish Nationals in Danzig Case, [1932]
P.C.I.J., ser. A/B, No. 44, at 28 (discriminatory legislation
breached good faith). A breach of good faith requires the cer-

tainty of a breach in the future.. See id. The future impact of
operation of the nuclear power-plant is only speculative. Fur-
thermore, only those regulations passed to evade the treaty are
prohibited..:.-.North-Atlantic Coast Fisheries Case, Hague Court Re-
port (Scott) 170 (Perm. Ct.-Arb. 1916). The.thermal discharges
are not.an .attempt to evade the treaty .terms since they are con-
sistent with .the purposes of the Treaty. The plant, therefore,

does not breach the good .faith requirement of the 1923 Treaty.
C:*.-
.The ordinary meaning .of .the Treaty permits waste dis-
charges of Karma's paper mill into the Upper Peace
River.
Article.II(l) of the 1923 Treaty states that "neither
state shall pollute boundary waters or other waters running be-
tween them .... .".(emphasis added)...- Application of the ordinary
meaning rule to Article II(1) reveals that the waste discharges
of Karma'.s paper mill facility do not violate the Treaty's anti-
pollution provision.
.. Boundary waters do not directly receive the

mill's sewage.
The Court may look to analogies in other treaties to de-
termine the meaning of-terms. Wimbledon, supra at 25-28; cf.

Chorz6w Factory (Jurisdiction).,..supra at 22-23. The 1909 Treaty
between Canada and the United States, similar to the 1923 Treaty
between .NewHelios and Karma, defines.boundarywaters as:
the waters . . . of the lakes and .rivers along which the in-
ternational boundary . . . passes .. but not including
tributary waters which in their natural channels would flow
into such lakes [and] rivers ..... or waters flowing from
-such lakes[and] rivers .... . or the waters of rivers flow-
*ing across the boundaryi
Treaty Relating to Boundary Waters and Questions Arising Between
U.S. and Canada, Jan. 11, 1909, 36 Stat. 2448; T.S. No. 548.
In this case,. "boundary waters" include only.International Lake
and a portion of the Lower Peace River. The anti-pollution provi-
sion .of the 1909 Treaty states: "boundary waters and waters
flowing across the boundary shall not be polluted on either side
to the .injury of -health or property on the other." (emphasis
added). In the present situation, the only waters that flow
across .the-.boundary--which is equivalent to "between the two
countries"--is that part of Lower Peace River that bends just be-
fore it .enters Karma. Since the brewery is situated there, it is
likely that .the .parties added these words to cover pollution by
the brewery. Upper.Peace River, on the other hand, neither con-
stitutes boundary waters nor-does it flow "between the two coun-
tries.." The prohibition does not include tributaries entirely
within .one .state such as the Upper Peace River. The mill dis-
charges its wastes into a river not covered by the prohibition.
2. The State of Karma does not participate in the

mill's waste disposal.
The .prohibition:applies only to state action. Prohibited
acts committed-by a state's citizens do not ipso facto involve
their state in a breach. S.S. Lotus.Case, [1927] P.C.I.J., ser.
A, No. 10, at 89. Private citizens own and operate the mill. In
the absence of .a liability provision for breaches committed by
her citizens, a state has only a duty to take reasonable measures
of prevention to ensure that its citizens do not violate the
treaty. A. McNAIR, LAW OF TREATIES -551-(1961). Karma has taken-
such reasonable measures. Since she cannot construct treatment

facilities herself due .to the huge expense, Karma obtained a prom-
ise from the mill company to alleviatethe sewage problem by pro-
viding modern housing.
.3.,.New Helios .consented to the alleged breach by the

mill.
The Court looks to subsequent actions of a state to inter-
pret treaty provisions. North Sea Continental Shelf .Cases, [1969]
I.C.J. 3,. 251; Vienna Convention, art. 31. For ten years New
Helios never complained. When typhoid occurred in 1970, she
merely closed her-beaches. When the water became nonpotable, she
constructed .purification facilities. The only explanation for
these actions is that the waste discharge by .the mill must not
have violated the 1923 Treaty.
Furthermore, estoppel applies to New Helios' actions. In
customary international law, estoppel by conduct prevents a state
from benefiting from her own inconsistency to the detriment of a
state-who has relied upon the representation. Continental Shelf,
.supra-at-.27; id. at 121-22 (dissenting opinion of Judge Ammoun).
Karma has- relied on the inaction of New Helios to continue her
development-by allocating her scarce capital resources to the
power.plant rather than to purification plants for the mill.
D. The doctrine of rebus sic stantibus nullifies the

anti-pollution restriction of the Treaty.
The rebus sic .stantibus doctrine has five elements.
Vienna .Convention, art. 62. First, the changed circumstances

must be fundamental. Second,. they cannot-result from a breach of
treaty obligations.. Third, the change must be unforeseeable.
Fourth, the change must affect the essential basis of consent.

Fifth, the change-must have radically altered the treaty obliga-
tions...Karma's situation meets these criteria.
:First, .few changes are more fundamental than those occur-
ring when a poor,.underdeveloped nation with its inhabitants liv-
ing as .hunters becomes a developing nation with industrial .work-
ers. . Second,. these changes did not .result from any breach of the
Treaty:since the mill's waste discharges and the plant's thermal
discharges accompanied the change but did not cause it. Third,
these developmentswere unforeseeable .in•1923 since development
of the Wilderness Region became feasible only after 1955 and
nuclear energy .became feasible only after 1943. Fourth, the pre-
vious conditions were essential to Karma's consent. In 1923,
•Karma!.s .economy was.underdeveloped. Had progress toward a higher
standard-.of-.living at that time depended on the need to discharge
wastes in .the Peace River, Karma would never have entered into
the:anti-pollution agreement. The fact of her underdevelopment
was, therefore, essential to Karnm's.consent. Fifth, the,changes
radically alter the obligations of the parties. Whereas before
the anti-pollution restriction had no effect on Karma, it now im-
poses.a huge financial burden.on Karma at.a time when she cannot
afford it... Thus. the Court.should nullify the 1923 Treaty pursuant
to Articles .62 and .65 of the Vienna Convention, leaving only the
negotiation-.provisions which Karma has admitted are still valid.
II.- .THEDISCHARGE FROM THE.PAPER MILL AND NUCLEAR POWER PLANT

-DOES NOT BREACH KARMA'S OBLIGATIONS UNDER GENERAL PRINCI-
-. PLESOF INTERNATIONAL LAW..
A... 1nder .the principle .of state sovereignty, inter-.

.. national law does.not:.recognize liability where-a
state's use of its natural-resources affects a neigh-
boring state.
..b- . . .
The principle of state'sovereignty is inconsistent with a
theory-that nations are absolutely liable for any .damage resulting
from their actions.. - Goldie,. -International Principles- of Responsi-
bility for.-Pollution, 9 COLUM. J.'TRANSNAT'L L. 283, 306 (1970).
"An act .of state injurious to another. state is nevertheless not
an international delinquency if committed neither willfully and
maliciously nor with culpable negligence." 1 L. OPPENHEIM, INTER-
NATIONAL LAW 343 (8th ed. H. Lauterpacht .1955).
Under international law theUpper Peace River is part of
Karma's territory and is, therefore, under her sole and exclusive
control. H. BRIGGS, THE LAW OF NATIONS 274 (1952); 1 L. OPPEN-
HEIM, INTERNATIONAL LAW 464-65 (8th-ed. H. Lauterpacht 1955).
Under the Harmon doctrine, .co-riparians-owe no obligation to each
other with-respect to the uses of -connected inland waterways. 21.
OP. ATTY GEN. 274 (1895). The doctrine has continuing vitality
since Indian writers asserted it-during the recent Indo-Pakistan.
dispute over waters of the Indus River. Bains, The Diversion of
International Rivers, 1 INDIAN J. INT'L L. 38 (1960). Under this

doctrine,. Karma is not liable for the effects of waste and sewage
discharge into the Upper Peace-River.
Even if the Harmon doctrine is itself not-customary inter-
national-law, co-riparians are not bound by-any other customary
norm which restricts their uses -of territorial waters. One of

the most basic principles of international.law is that states are-
bound only by their own consent:. "Restrictions upon the independ-
ence of States cannot therefore be presumed." S.S. Lotus Case,
supra at-18. "No general principle:.of international law prevents

a riparian State'from . . . polluting its waters." BRIGGS, supra
at 274.
Moreover, the Court has always used a strict standard for
determining whether-a rule-has.achieved .status as .acustomary
norm: general acceptance asevidenced .by uniform state practice
over a considerable-period of timej accompanied by opinio juris
sive necessitatis.. North Sea.Continental Shelf Cases .supraat
41-45; Fisheries Case, [1951] I.C.J. 116, 131; Asylum Case,
[1950] I.C.J. 266, 277-78. New Helios, as claimant, has, there-
fore, a heavy burden of proof to establish that a customary rule
not-to pollute exists. The mere fact that a majority trend
exists does not mean that a rule has become customary law. Fish-
eries Jurisdiction Case (United Kingdom v. Iceland) (Merits),
[1974] I.C.J.- 89-90 (separate Opinion of.Judge De Castro). And
state inaction does not create a presumption of support for a
norm.. Lotus .Casei.supra at 28. Even if the Court were to de-
clare the maxim of sic utere- tuo ut alienum non -laedas to be cus-
tomary law..it would only have the character of a very broad gen-
eral principle. Manner, Water Pollution in International Law,
U.N. Doc.. WATER POLL./CONF./12 at 21 (1960). It "provides no
conclusive answer to what are the rights and obligations of a
state," id., and-therefore it cannot create liability in a spe-
cific case.- In the absence-of a showing by New Helios that a,
specific rule .of customary law exists that prohibits Karma's dis-
charge of wastes, .the Court-cannot hold Karma liable.
No international decision can serve as authority for the
prqposition that states are strictly liable for the effects of

16
their waste-.disposal in international waterways. The decision in
the TrailSmelter Arbitration, 3 U.N.R.I.A.A. 1905 (1941), is re-

stricted by..its compromis. The judgment did not- establish the
principle.of liability, because -liability was accepted in advance
by Canada' THE.INTERNATIONAL LAW OF POLLUTION 71 .(J:. Barros & D.
Johnston eds. 1974)-[hereinafter cited as BARROS & JOHNSTON].
The decision's dicta-that recognizes a rule of responsibility for
the effects.of.environmental pollution was taken by analogy from
.domestic law and cannot be considered an international legal
norm. F. BERBER, RIVERS IN INTERNATIONAL LAW 177 (1959). More-
over, the tribunal did not-attempt to examine whether the notion
of.liability was.appropriate'in the international context. Rubin,
Pollution byAnalogy: The Trail Smelter Arbitration, 50 OREG. L.
REV. 259, 269 (1971). "Thus, its worth as-precedent appears
questionable," id. at 271 and .the Court cannot use it to hold
Karma liable,
3.. The .principle.of equitable..utilization permits the

.- .. discharge from Karmaals paper-mill -and nuclear power
-plant.
I.; Equitable utilization approaches the status of
international law.
If-a state's sovereignty over her.rivers is limited at
"all, it can only be.limited by the.principle of equitable utili-
zation,. a doctrine most authoritatively stated in .the Helsinki
Rules on the Use of the Waters of International Rivers. INTER-
NATIONAL LAW.ASSOCIATION, REPORT OF THE FIFTY-SECOND CONFERENCE,
HELSINKI 484. (1966) [hereinafter .cited-.as!HELSINKI RULES].
Rules .represent a .comprehensive attempt at

.The.Helsinki.
formulation-.of-.prlnciples for the settlement .of .conflicting water-

uses, but, at-present, they are-only rudimentary. Bourne,. Pollu-
tion of International Rivers.and Lakes, 21 U. TORONTO L.J. 193,
195 (1971).-If any-of.the concep-s in the.Rules approach the
status of a-general principle of international law, it can-only
be equitable utilization. Id. at 201. The ILA included equita-

ble .utilization among its "Agreed Principles of-International.
Law" as .early as 1958. INTERNATIONAL-LAW ASSOCIATION, REPORT OF
THE.FORTY-EIGHTH CONFERENCE, NEW YORK-99: (1958). In addition,

the Trail Smelter -arbitration supports the doctrine to the extent
that.it required-serious consequences .before the imposition of
liability..-Utton,..International Water Quality Law, 13 NATURAL
RESOURCES J.. 282, 291 (1973).
The principle of equitable utilization is stated in Arti-

cle IV of the-Helsinki Rules-,"each basin State is entitled,
within its territory, to a reasonable and equitable share in the
beneficial.uses-of the waters of an international drainage
basin.". Article V provides that "what-is a reasonable and .equi-
table share within the meaning of article IV is-to be determined
in the light.of-all the relevant factors in each particular
case." HELSINKI-RULES,. -supra at 486-88.
2. The utility of the mill and .power plant-to Karma

.. far .outweighs the .injury-to New Helios occa-
sioned.by their operati6n.
.-Equitable utilization contemplates a decision on-water
-usage-based on-.a balancing of.the interests of the riparian
states-.. Karma's usage of the Peace River for the mill and power.
plant.is equitable-. Karma is a-developing state, still concerned
with.-feeding her -population,,.whereas -NewHelios is an.industrial-

ized country., able to bear the burden of .pollution control.
The Court must consider all .relevant factors, including
"the economic-and .sociAl.needs of each basin state . the
population dependent on.the waters of the basin .... [and] the
comparative costs of alternative means of satisfying the eco-
nomic and social needs ... " HELSINKI-RULES, supra at 488.
In a developing state such as Karma capital investment .for pollu-
tion control involves a "direct trade-off with increased employ-
ment opportunities or increased exports or other economic growth
objectives, .which are necessary simply to sustain life." H.
MALMGREN, INTERNATIONAL ECONOMIC PEACEKEEPING IN PHASE II 165
(1972)...International borrowing would only increase debt-
servicing .paymients and thereby restrict investment, already in-
adequatetdue to low domestic. savings. .G. OHLIN, FOREIGN AID
POLICY RECONSIDERED a8 (1966).
Conflict over the use of international rivers can be a
major impediment to economic growth "with the result that prog-
ress in development is often held up for years, to the detri-
ment, not only of the countries concerned, but .of the world in
general." .21-,U.N. ECOSOC 5, U.N. Doc. E/3066 (1958). The Founex
Report recognized the importance of continued development:
The less industrialized countries cannot forego growth or

transformation in.the name of -conservation of natural re-
sources.or for the.sake.of preserving an unaltered natural
habitatb -Actions taken -to protect the environment by divert7
ing resources-from development might in-the long run prove to
be self-defeating, since they might~reduce development there-
by-limiting.the-magnitude of resources ultimately available
for .improving theo.human-environment.
Unit-d Nations:-Conference on the Human .Environment,.Development

and Environment, 5 U.N. Doc. A/Conf. 48/10 (1971). Moreover, the
continued economic development of less-developed countries creates
new markets .for .the increased production in .the industrialized
states and thereby.helps avert the problem .of large-scale.future
unemployment.- W.. VERWEYi. ECONOMIC DEVELOPNENT, PEACE AND'INTER-
NATIONALLAW 253 (1972).
The Court has not been blind to arguments of economic
necessity--in.the Fisheries Case (United Kingdom v. Norway),
[1951] I.C.J. 116, the Court attached significance to the fact
that the Norwegians depended on the fish for their livelihood.
And in the recent Fisheries Jurisdiction Case the Court noted
widespread acceptance of the concept of "preferential rights,"
particularly where the exploitation of a natural resource is of'
fundamental importance to the economic development of the .state
requesting .the.privileged conduct... Fisheries Jurisdiction
Case .(United Kingdom v.. Iceland)., [1974] I.C.J. 3, 23.
A balancing of interests at the present time favors plac-
ing the burden-on.New Helios.. As development proceeds, Karma may.
be able-to assume someresponsibilities in the protection .of the
environment, but the .present disparity in economic power.between
Karma and New Helios argues for her release from any liability.
III.. XARMA IS NOT OBLIGATED UNDER-INTERNATIONAL LAW TO MAKE-

REPARATIONS .TO NEW HELIOS -FOR THE EFFECTS OF THE:DIS-
.CHARGE-INTO THE PEACE'RIVER.
- No-act can be attributed to Karma which violates her: con-
ventional-or customary obligations under international-law.

Besides thisj .however, New Helios has suffered no injuries as a
result of Karma's conduct for which reparations may be awarded.

A. No compensable damages have been suffered-by New-
:: Helios under .international law.
In the absence of proof that actual loss has occurred, a
claim for compensation must be dismissed. Mavrommatis Jerusalem
Concessions Case. [1925] P.C.I.J., ser. A, No. 5, at 51. The
burden of proof rests squarely upon the claimant; 2 S. ROSENNE,
THE LAW AND PRACTICE OF THE INTERNATIONAL COURT 580. (1965); B.
CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL
COURTS AND: TRIBUNALS 326-35 (1953). Furthermore, the Court can.
only award compensation on the basis of a
concrete submission as to the existence and the amount of

each head of damage. Such an award must be based on pre-
cise grounds and detailed evidence concerning those acts
which have been committed, taking into account all relevant
facts of each incident and their consequences in the circum-
stances of the case. It-is only after receiving evidence on.
these matters.that the Court can satisfy itself .that each
concrete claim is well founded in.fact and in law.
Fisheries.Jurisdiction Case (Federal.Republic of Germany v. Ice-
land), supra at 204. Unless New Helios meets these requirements,
the Court must dismiss any claim for compensation.
1. Purification expenses incurred by New Helios and

Lower Peace Brewery are not.compensable.
Riparian rights are not-rights of possession under inter-
national law; rather they are-rights of use. Bourne, The Right
t.Utilize the-Waters of International.-Rivers, 3 CAN. Y.B. INT'L
L. 188 (1965); 1 WATER AND WATER RIGHTS 66-67, 349 (R. Clark ed.
1967). Pollution of international waterways, therefore, does not-
constitute damage or injury to a property right.in the waters in
the sense of. damage or injury to other types of real property.
Nor has discharge of wastes inside Karma.prevented the use by New

Helios of the waters running between the two countries. The only
effect of-.the discharge of wastes into the Upper Peace River has
been-the requiring of.further purification of the water. This
purification does not.result from damage.inflicted by Karma, but
rather from-a-normal condition for .theuse of natural waterways
as.a source of .drinking water.*
Even .if the Court decides that .pollution injures a .prop-
erty right to use the waters, New Helios is estopped from claim-
ing such.damage under .principles and practices of international
adjudication. 1 M. WHITEMAN, DAMAGES IN INTERNATIONAL LAW 187
(1937).:[hereinafter.cited as WHITEMAN]... New Helios is estopped.
in.three-.respects. First, the claim became,.extinguished by New
Helios'..failure .to promptly,notify Karma of its claim for dam-
.ages or to-protest.until 1974. Id.. at 222. Second, by install-
ing the purification equipment without protest, New Helios
acquiesced-in Karma's conduct. Third, delay in presentation of
this claim-.has barred New Helios from-presenting it as a valid
claim-under-international law. Id. at 236.
Any-other claim based on injury or damage -to water rights-
as a-result-.of discharge of wastes must,fail because it is not

"reasonably.capable--of estimation." Yntema, The Treaties with
Germany-.and-.Compensation for War Damage) .24 COLUM. L;,REV. 153
(1924). The only international adjudication that has considered
the effects-of.environmental pollution held that the tribunal
could.consider- only. damage;-for which -the -claimant could-prove a
pecuniary loss.. Trail Smelter.Arbitration ..

supra at 1932-33.
Here any .claim of injury to water rights would lack specific

measurement.
2. The outbreak of typhoid fever in New Helios is

not a compensable damage.
Under international.law, any loss for which the-claimant
asks compensation must have been proximately caused by respond-
ent's-illegal act. There must be no break in the chain of.causa-
tion and-the loss must-be "clearly, unmistakably and definitely
traced, link by link," to the respondent's conduct. United
States-Germauy Mixed Claims Commission Administrative-Decision No.
II,- 7 U.N.R.I.A.A. 23, 29-30 (1923). Any claim for damage that
the claimant cannot prove to be connected with .the illegal act.
must.necessarily fail. Responsibility of-Germany for. Acts Com-
mitted after July 31, 1914, and before Pottugal Entered the-Wari
2 U.N.R.I.I.A. 1040 (1930). The Court may use circumstantial evi-
dence but the proof must leave ."no room for reasonable doubt."
(emphasis added).. Corfu Channel*Case-(Merits), [19491 I.C.J. 4,
18. Specifically, in cases of personal injury, liability depends
on the absence of any demonstration "that any other independent
cause existed of which [the-injury] might have been a result."
Maninat Case-(1905), Report of the French-Venezuelan Mixed Claims,
Commission of 1902-(Prepared by J; Ralston 1906).
A relationship between discharge of sewage into supplies
of drinking water and the incidence of typhoid fever may exist.
New Helios.,. however, cannot,meet its- substantial burden of proof
i any claim to compensation for the .typhoid outbreak-. Typhoid
can be transmitted by agents other than.polluted water-milk
products,. shellfish, and almost any other-foods. C. WINSLOW,

MAN AND EPIDEMICS 44 (1952); I. TAYLOR & J. KNOWELDEN, PRINCIPLES
OF EPIDEMIOLOGY (1957). Moreover, there,is-a "large class of
cases not .traceable to the general water supply.or milk." A.
McLAUGHLIN,. SEWAGE POLLUTION OF INTERSTATE AND INTERNATIONAL WA-
TERS WITH SPECIAL REFERENCE TO THE SPREAD OF TYPHOID FEVERS 14-15
(Treas... Dep.'.t Hygienic Laboratory. Bull.. No.. 77, 1911). In these
cases typhoid is directly transmitted by chronic carriers of the
disease; Id. It is quite likely that the 1970 typhoid outbreak
in New Helios was 'due to one of these other causes.
Furthermore, in developed states typhoid has often been
virtually-eliminated, in spite of existing pollution, through
proper purification techniques for drinking water and through im-
munization... International.Joint Commission (United States and
Canada)., Report .on the Pollution of Boundary Waters 58 (1951)i.
Studies have shown that in countries .having low rates of endemic
enteric disease .there is no serious health risk to bathing in
polluted-waters.. WORLD HEALTH ORGANIZATION, -WATER POLLUTION-CON-
TROL IN DEVELOPING COUNTRIES 10 (Technical Rep. Ser. No.- 404,
1968). It-Is quite .likely.that New Helios' own failure to -purify
its citizens':.drinking water properly caused the 1970 outbreak
and this-may.have been.accompanied by a low level of immuniza-
tion. New Helios might.have closed .the beaches in order to place
responsibility on-Karma and shift attention away. from New-Helios'
own .negligence. Inlight of these .considerations, New Helios has
notmet .the burden.of proof in establishing a causal link between
Karma 's-.conduct and the typhoid.

3. Future expenditures for water cooling and purifi-
. cation-are not compensable.
Simple.logic-.demonstrates that the Court cannot award com-
pensation .for-injuries not yet suffered.. 2 WHITEMAN-supra at
833. Nor can international tribunals take into account "contin-
gent and indeterminate damage" in ordering-reparations. Chorzow
Factory.Case--(Merits), [19281 P.C.I.J., ser. A, No. 17, at 57.
If any damage results from full operation of Karma's nuclear
power .plant, the Court. cannot remedy it at this time but only in
.asubsequent case. -States may-not request advisory opinions on
questions .of liability for future illegal acts and future injur-
ies. Certain.German Interests in Polish Upper Silesia, [1925]
P.C.IJ., ser. A, No. 6, at 21; Southwest Africa Case, Second
Phase, [1966]-.I.C.J. .4,.33-34. Any pronouncement by the Court..on-
the question of liability for the effects of effluent from the
nuclear power plant would have the character of anadvisory
opinion.
M. No future restrictions onKarma's conduct are war-

.ranted underinternational- law.
New Helios will probably request the Court to order Karma
not to pursue her -present course of conductin the future. This-
relief is not available to New Helios.. The remedy of injunction
is not,used in international adjudication, which must only result
in reparations .for the existing effects of illegal acts. Chorzow
Factory Case.(Merits),. supra at 47. The only decision in which
the tribunal employed such a remedy must be interpreted as being
narrowly-restricted by the express-terms of its compromis. Trail
Smelter-Arbitratienisupra at 1908; BARROS-& JOHNSTON, supra at 71.

1; The-1923 Treaty.contemplates no prohibition of
..
Karma's..conduct in present.circumstances.
.... Article II(i) of the 1923 Treaty .of Amity, Friendship,
and Econohic Cooperation provides that pollution that injures
health .or,.property-.in-the other .state.is-prohibited (Appendix).
Only.harmful pollution is forbidden, however.. The treaty does

contemplate .total-prohibition of'all polluting activities. The
states-are .to enter.-into specific .arrangements if a state's pol-
lution imjures .the other state; (Art..II(2), Appendix). These

arrangements.are .to .be directed -at-controlling the polluting
state's-discharge of-wastes, so that .the responsibility in Arti-
cle II(i) may-be furthered.. Thus .the Treaty expresses the inten-
tion .of .the.parties that they must establish a balance of inter-
ests between-.the polluting state'.s use of the waters to dispose
of wastes and .an.acceptable range of the other state's beneficial
uses.
New Helios cannot prove-Karma's use of the waters has inr
jured property or-health in New Helios.. Nor can New Helios prove
with required .certainty that she will suffer serious injury in
the future.. In any event, should the situation contemplated by
Article II(1). arise in the future, the parties are under an -obli-
gation to enter-into specific arrangements.. The parties did not.
intend total prohibition of either state's use.
2. The existing customary regime does not-prohibit

the discharge of wastes into the Peace River.
.... Any Curt order having the -effect of a permanent injunc-
tion-.against.JKarma's dischargeof wastes into the Peace River is
not-consistent with customary:international law. First, if that

law embodies the sovereign right of a state to use its territorial
waters without regard to other riparians, then Karma is not,lia-
ble.. .Second'-.if.customary=.law embodies .the .doctrine of equitable
utilization, then Karma!s conduct-in permitting .discharge of
wastes is not subject .to injunction but,. at-the most, to restric-
tion to a point .where the effluent does not .conflict unreason-
ably with-New Helios'.use of the waters. Since Karma's use of
the waters does not illegally restrict New Helios'.utilization,
the Court..cannot prohibit Karma's conduct.
3. Even if existing conventional and customary inter-

national law permits an.order enjoining Karma's
discharge of wastes, no present or future damage*
.* to New Helios warrants it.
In order to obtain an order .having the effect of-an in-
junction, New-Helios must conclusively.demonstrate that Karma's
acts have.resulted in present harm and will definitely.cause harm
in .the future. Such -aburden was-met, in .the Trail Smelter Arbi-
tration-.through admission of.liability in.the compromis and ex.-
haustive xesearch -of future effects. Trail Smelter Arbitration,
supra.at .1905.
.. With respect-to .the discharge-of wastes -at the mill site,
New Helios cannot prove-that-serious harm.is -inevitable.. New
Helios -has not proved that the discharge of wastes caused the
1970 typhoid increase. In light of -the fact that there have been
no reports..of similar. outbreaks.in .the last five .years, imminent
danger to health in New Helios is.unlikely.. In addition,.fears
of great.destruction to the ecology of the waterways are present-
ly.unwarranted.. "The polluting effect of a particular organic

material ,depends . .. . on many -variable environmental factors."
3 .B. GINDLER,. WATER AND WATER RIGHTS-li- (R. .Clark ed... .1967).. New
Heli6s-.cannot.prove that .in this case.discharge of wastes into
the waters will-necessarily have-the .feared-consequences. . In-
creased..expenses-.for .purification.equipment do not warrant in-
junction-either; Purification is a normal-expense that-accompan-
ies use-of .rivers as a source of drinking water. In any event,
Karma'.s discharge of wastes does not prevent the use of the wa-
ters by New-Helios, and under a regime of equitable apportionment
New Helios can best bear the cost -of ensuring a pure supply of
drinking water-to its citizens.
New-Helios cannot prove that effluent from the power
plant will .cause future harm that .warrants injunction. In some
situations:discharge of heated waters may. actually have a bene-
ficial environmental impact.. Jackson, The Dimensions of-Inter-
national.Pollution, 50 OREG. Li.REV. 236 .(1971)
.C.. Except under the. 1923 Treaty,. Karma has no duty under
-
..--....
international law to. negotiate .a regime for regulat-
.... •ing the-use of boundary-.waters.
- New-Helios may assert that..a.duty..exists -under.customary
international-.law-for Karma and New -Helios-to negotiate a regime
for .the .use-.of-the-waters running between.-them.. This obligation
does not,.exist. The 1923 Treaty does provide in Article 11(2) for
such negotiations when appropriate...In.present circumstances they-
are not .appropriate.. In.any event, New-Helios has not.heretofore
undertaken .to.comply with this treaty provision.. Outside of the
Treatyi the-only.general duty to negotiate-is found in Article.33
of the United-Nations,Charter which applies only in disputes

likely to endanger the maintenance of international peace and
security. 49 ANNUAIRE DE 'INSTITUT DE -DROIT INTERNATIONAL,
tome. II,. .at-.92 .(1961).
IV. THE COURT .SHOULD NOT. INDICATE .INTERIMMEASURES!OF PRO-

DIRECTED AT KARMA,. PENDING FINAL%JUDGMENT.
.TECTION
Court. should not indicate. interim measures of pro-

.The
tection, .IC .J. STAT. art. 41; I.C.J. RULES, art. 61, for several
reasons.. Firstly, New Helios has suffered-no material damages.as
a .result.of.Karma'.s conduct and .cannot prove that such damages
are imminent... Secondly,. even if the Court finds that New Helios
will be.inj.ured, to warrant interim measures the harm must be
irreparable and.incapable of redress by award of damages. Nu-
clear.Tests Case.(Australia v. France)..(Interim Measures- of Pro-
tection)., [19733 I.C.J. 99, 104; Denunciation of the Treaty of
1865.Case, [1927] P.C.I.J., ser. A, No.. 8,,at7;. Here, damages.
would not be .irreparable. Thirdly, interim-measures should only
preserve the rights of the parties, not.effect a judgment in
one .party.. Charz 6w Factory Case (Indemnities), [1927]

favor-of -.
P.C.I.J.., ser; A, No. 12, at 10. The interim measures that New
Helios requests -are ."so close to the actual subject matter of the
case that they-.are practically indistinguishable therefrom."
* Nuclear.-Tests Case$:supra-.at .113 (dissenting opinion of Judge
Forster).. Karma knows.of-no "temporary" waste treatment facili-
ties.. Effectively, New Helios requests a judgment. Id.

The Court should also consider the serious.hardship that
an order directingthe cessation or abatement of waste disposal
at .the-mill-site would have on the-state .and citizens of Karma.

The-private'groups which operate .the mill .complex and Karma's
government are-.financially .unahle-.to..treat-.the-wastes effectively,
and .construction of-suitable facilities-is.physically impossible
in the near.future. Complete-cessation would have-serious eco-
nomic effects .on .the mill owners and disastrous health effects on
the inhabitants-.of the shantytown..-Such interim-measures would
definitely .not "preserve the.......rights"'of Karma. Id. at 103.
Moreover, the Court should not prohibit full operation of the
nuclear power plant. The energy produced by .the plant is desper-
ately needed for the development of Karmays interior and the
needs of-Karmays-capitali which has quadrupled in population
since-1950. (R. 4).
CONCLUSION
Wherefore, for the reasons set forth above, Respondent
respectfully prays that the International Court of Justice render
its decision in favor of Karma, finding that:
(1) Karma has not-breached the 1923 Treaty by allowing the
discharge of wastes into the Peace River.
(2) The discharge 6f wastes is not a breach of general
principles of international law for which Karma is.
responsible.
(3) Karma is not obligated to make reparations to New-
Helios.
(4) The Court should not indicate interim measures of
protection pending final judgment.
Respectfully submitted,
Michael G. Mullen
CERTIFICATE
We certify that this Counter-Memorial complies with the
1975 Rules of.this competition.
Michael G. Mullen
A P P E.N.D I X
1923.TREATY OF AMITY, FRIENDSHIP, AND ECONOMIC COOPERATION
.;Article I
In order...to carry out the purposes and.objectives of this Agree-

ment, the States of Karma and New Helios agree to cooperate and
consult with one another as appropriate.on matters of mutual in-
terest.
-. Article II
Paragraph 1. Both States agree that in keeping with the general

aim of amitr, friendship and economiccooperation, neither State
shall pollute-boundary waters or other waters running between
them so as to injure the health or property in the other State.
Paragraph 2. In furtherance of this responsibility the parties

undertake-to enter into specific arrangements as appropriate.
Article III
The Lower.Peace River shall be open to the ships of both States,

and navigation shall not be impeded or..unreasonable conditions
placed thereon, unless a situation arises in which either State,
upon notification to the other, believes-that health and safety
require the imposition of such conditions.
Article IV
Paragraph 1. Disputes between.the two States shall be settled
amicably and equitably with full regard .to the purposes and
principles set forth .in-this-Agreement.
Paragraph 2. Upon.the request of-either State, both States agree

that questions arising under.this Agreement which have not been
settldd within a reasonable time may.b6 brought to arbitration,
each State choosing one arbitrator and the remaining arbitrator
to be-agreed between them ori if agreement is not reached within
a period-of six months from the datexof the selection of the two
other arbitrators, such third arbitrator shall be selected by the
President of the Permanent Court of-International Justice.
Paragraph 3. At the time a request for arbitration is madel or at

any time before the arbitration commences, either-State may re-
quest that the disputebe submitted to the Permanent Court of
International Justice .or to a special chamber.of that Court. The
agreement.of the other State shall first .be obtained before sub-
mission .is made..to the Court.
COURT COMPETITION
1975


(Applicant)
International Awardi t University of Toronto #27

IN TiE INTERNATIONAL COURT OF JUSTICE
February 1975
Between:
NEW HELIOS
Applicant
and
KARMA
Respondent
MEMORIAL FOR THE APPLICANT

Ci)
INDEX
Page
INDEX OF AUTIORITIES ......... ................. (vi)
JURISDICTION ..................... (xii)
STATEMENT OF FACTS ... ......... . . . . (xiv)
QUESTIONS PRESENTED ................. (xv)
SUMMARY OF ARGUMENT ................. (xvi)
ARGUMENT AND AUTHORITIES ..... ......... . . 1
I. NEW HELIOS IS NOT DEBARRED FROM PURSUING 1

ITS CLAIM EITHER BY LACHES OR ACQUIESCENCE
A. Laches: New Helios has not been dilatory 1

in advancing its claim
B. Acquiescence: New Helios did not acquiesce 1

in the breach of Treaty by Karma
II. KARMA IS RESPONSIBLE FOR THE HARM WHICH HAS BEEN 2

OR MAY BE INFLICTED UPON THE ENVIRONMENT OF NEW
HELIOS UNDER THE 1923 TREATY
A. The 1923 Treaty is legally binding upon the 2

States under general principles of inter-
national law
B. The parties themselves intended that the 2

Treaty be established as an agreement of
legal obligation
C. The Treaty has not been terminated, nor has 2

its operation been suspended, by virtue of
the doctrine rebus sic stantibus.
1. The doctrine has not been established 2

as a rule of international law
2. In any event, the doctrine is inappli- 3

cable to the 1923 Treaty
(a) The doctrine does not apply to a 3

treaty stipulating an interna-
tional servitude
(b) There has been no fundamental change 4

of circumstances
(ii)
Index (continued) Page
D. Karma has breached the provisions of 5

the 1923 Treaty as interpreted accord-
ing to general'prificiples of interna-
tional law
1. The spirit of the Treaty is to be 5

observed
2. The Treaty is to be liberally construed 5

in the light of its object and purpose,
and so as to enlarge rights which may
be claimed under it by the parties
3. The Treaty must be interpreted so that 6

it becomes effective in practice
E. Karma, in polluting the waters of the In- 7

ternational'Lake'and the Lower Peace River,
stands in breach of the 1923 Treaty
1. Karma is responsible at international 7

law for the activities of both the
mill complex and town and of the
nuclear plant
2. Karma has breached the provisions of 7

Article I of the 1923 Treaty

Article II, Paragraph 1, of the 1923
Treaty
(a) The operations of the mill complex 8

and town are in breach of Article
II, Paragraph 1, of the 1923
Treaty
(b) The operations of the nuclear 9

plant are in breach of Article II,
Paragraph 1, of the 1923 Treaty
(c) Karma's violations of the 1923 Treaty 10

have resulted in injury to health
and property in New Helios

Article II, Paragraph 2, of the 1923
Treaty
(iii)
111. KARMA IS RESPONSIBLE UNDER GENERAL PRINCIPLES- OF 10

INTERNATIONAL LAW FOR HARM INFLICTED UPON THE
ENVIRONMENTOF. NEW HELIOS.
A. State responsibility for damage arising from 10

the pollution of international watercourses
is a recognized principle of international
law
1. State responsibility for pollution dam- 11

age is an accepted principle of customary
international law.
(a) State responsibility as evidenced by 11

U.N. declarations and conferences
points to liability for harmful poll-
ution.
(b) State practice as evidenced by bi- 12

lateral and multilateral treaties
establishes the illegality of harmful
pollution in international law.
(c) Formulations of principles by inter- 13

national-associations posit state
responsibility for pollution as a
rule of customary international law.
2. State responsibility for harmful pollution 14

may be based, in the alternative, upon
general principles of law recognized by
civilized nations.
(a) Responsibility may be based on the 14

sic utere tuo ut alienum non laedas
principle.
(b) Responsibility may also be based on 14

the doctrine of abuse of rights.
3. The principle of state liability for harm is

caused by pollution is in accordance with
judicial decisions.
4. The principle of responsibility for harm- 16

ful pollution is accepted by most pub-
licists.
(iv)
B. Karma cannot escape responsibility for harm 16

caused to the environment of New Helios by
reference to any recognized doctrine of
international law.
1. The doctrine of absolute territorial i7

sovereignty is not a recognized principle
of international law.
2. The equitable utilization doctrine is of 17

no avail to Karma.
(a) The equitable utilization doctrine is 17

not an established principle of inter-
national law.
(b) In the event that the doctrine of 18

equitable utilization is accepted as a
principle of international law, it
does not absolve Karma from liability.
(c) The requirement for substantial damage, 19

if it exists, has been met.
C. The state of Karma is responsible for all 19

injuries inflicted on the environment of
New Helios.
D. Karma is in breach of a duty to give notice. 20
lv. NEW HELIOS IS ENTITLED TO RELIEF. 21
A. Harm has been and will further be done to New 21

Helios by Karma.
B. Karma is under a duty to make reparations to 22

New Helios.
1. New Helios is entitled to the restoration 23

of the status quo ante.
(a) The International Court may grant such 23

relief.
(b) Such relief is warranted in the circum- 24

stances.
2. New Helios is entitled to monetary damages 24

with interest.
Cv)
Index (continued) I
CONCLUSION 25
ANNEX A (map) 26
ANNEX B (treaty) 27
(vi)
Page
TREATIES, INTERNATIONAL AGREEMENTS AND CONFERENCES
Border Treaty between Belgium and West Germany, 1956 Art.

7 U.N. Doc. ST/LEG/Ser. B. no. 151, 533-34, 314 12
U.N.T.S. 196.
Boundary Waters Treaty between Great Britain (Canada) and

the United States, 1909. Art. IV. U.N. Doc. ST/LEG/Ser.
B. No. 79, 260,61, 102 British and Foreign State
Papers 137. 12
Buenos Aires Resolution (Principles of Law Governing the

Use of International Rivers and Lakes, Resolution
Adopted by the Inter-American Bar Association at its
Tenth Conference in Buenos Aires, 1957. 10 Inter-
American Bar Association, Proceedings, 82 (1957). 20
Convention on the Protection of Lake Constance Against

Pollution (between Baden-Wurttemberg, Bavaria, Austria
and Switzerland), 1960 U.N. Doc. ST/LEG/Ser. B. no. 127,
435 et seq. 12
Declaration of Montevideo (Pan American Declaration of 1933

concerning the Agricultural and Industrial Uses of
International Rivers). 28 Am. J. Int'l. Law, Supp.
59-60 (1934). 20
Draft Convention on the Industrial and Agricultural Use

of International Rivers and Lakes O.A.S. Off. Rec.
OEA/Ser. 1/012 (Engligh) CIJ-79, 4,7,13-14, 20-21. 20
Economic Commission for Europe, Conference on Water Pol-

lution Problems in Europe, 1961, in The Future of The
International Legal Order Vol. IV: The Structure of
the International Environment, 148 (Black and Falk ed.
1972) infra. % 1 12
Frontier Treaty between Norway and the U.S.S.R. 1949 Art.
14 U.N. Doc. ST/LEG/Ser. B. no. 238, 880,882, 83 U.N.
T.S. 342. 12
Helsinki Conference of the International Law Association,

1966, International Law Association, Report of the 13,14,17,
Fifty-Second Conference, Helsinki, 1966. 477 et seq. 18,19,20,
493, 496, 500, 501. 21,23
Indus Waters Treaty between India and Pakistan, 1960, Art

4, para. 10 U.N. Doc. ST/LEG/Ser. B. no. 98, 300,05. 12
Madrid Resolution of the International Law Institute, 1911

in Kaeckeenbeek, G. IfiterfiatiofialRiVers, 181 (1918)
infra. 13
(vii)
Index of Authorities cont'd Page
Salzburg Resolution of the International Law Institute,

19 1, Art. 5. 49 Annuaire de l'Institut de Droit
International, 38 (1961). 20
United Nations Conference on the Human Environment, Stock-

holm, 1972, Principle. 21 U.N. Doc. A/Conf. 48/CRP 26,
1972. 9,11,12
Vienna Convention on the'Law of Treaties, Art. 26, 31, 63 2,4,6

Am. J. Int'l. Law, 875 (1969).
CASES
Advisory Opinion on the Competence of the General Assembly

'for the Admission ofa State to the United Nations
[1950] I.C.J. Rep. 4,15 (D.O. Judge Alvarez). 15
Advisory Opinion on the Interpretation of Peace*Treaties

with Bulgaria, HungTar and Romania [1950] I.C.J. Rep.
221,228. 22
Anglo-Norwegian Fisheries Case [1951] I.C.J. Rep. 116,142. 14
Chorzow Factory (Indemnity) Case (Jurisdiction) [1927]

P.C. I.J. ser. A. No. 8, 21. 22
Chorzow Factory (Indemnity) Case (Merits) [1928] P.C.I.J. 22,23,24,

ser. A No. 17, 27, 29, 47, 64. 25
Corfu Channel Case (Merits) [1949] I.C.J. Rep. 4, 8, 23. 22,25
Free Zones of Upper Savoy and the District of Gex Case

[1932] P.C.I.J. ser. A/B No. 46, 167, 172. 14,23
Kolovrat v. Oregon, 360 U.S. 187 (1961). 6
Lake Lanoux Arbitration (France v. Spain) 24 I.L.R. 101,

123. 15
Missouri v. Illinois, 200 U.S. 496 (1906). 16
New Jersey v. New York City, 283 U.S. 473 (1931). 16
New York v. New Jersey, 256 U.S. 296 (1921). 16
Nielson v. Johnson, 279 U.S. 47 (1929). 6
North Sea Continental'Shelf Cases [1969] I.C.J. Rep. 3,

46-47, 53-54. 21
Tipping v. Eckersley (1855) 2 K. & J. 264; 69 E.R. 779. 10

(viii)
Trail Smelter Arbitration (Canada v. United States) 35

Am. J. Int'l Law, 684, 716, 3 U.NoR.I.A.A. 1905 (1941). 16,23
Walker Ice Co. v. American'Steel & Wire Co., 185 Mass.
463; 70 N.E. 937 (1904). 10
Wimbledon Case, [1923] P.C.I.J. ser. A. No. 1, 33. 25
Wurttemberg and Prussia V. Baden (Staatsgerichthof,
Germany) [1927-28] Ann. Dig. 128 (No. 86). 16
Young (John) & Co.' v. Bankier Distillery [1893] A.C.
691,98, (H.L.). 9
TREATISES, DIGESTS, RESTATEMENTS AND MONOGRAPHS
Anzilotti, D., Cours de droitinternational, 527 (1929). 25

Barros, J., and Johnston, D., The International Law of 9,11,17,
Pollution, 6, 17, 71-72, 75 (1974). 18
Berber, F., Rivers in International Law, 25, 40-42 (1959). 17
2 Cavard, L., Le droit international public positif, 284
482, 783 (2d ed. 1962). 16,23
Cheng, Bin, General Principles of Law as Applied by
International Courts'aidTribunals, 114, 118, 121,
174 (1959). 5,14,19
Fauchille, P., Traitede droit international public, 449
(8th ed. 1925). 16
Friedmann, W., Lissitzyn, 0. and Pugh, R., International
Law, 387 note (1969). 8
The Future of the International Legal Order Vol. IV: The
Structure of the International Environment, 100, 130,
148 (Black and Falk ed. 1972). 12,19,20
Harazti, G., Some Fundamental Problems of the Law of
Treaties, 166-67, 168, 384-85, 394 (1973). 3,4,6
Hill, C., The Doctrine of 'Rebus Sic Stantibus' in
International Law, 7, 90, (IX University of Missouri
Studies, 1934). 3
The International DrainageBasin, 23 (Chapman ed. 1963). 18
Jenks, C.W., The Pr6spects 6f*Internati6nal'Adjodication
528, 419, 684 (1964). 12,23,25
(ix)
Index of Authorit-iescont'd Page
Kaeckeenbeeck. G., International Rivers: A*Monograph based

on Diplomatic Documents, 181, (1918). 13
Kiss, A.-C., Llabus de dr6it en drit'international, 10,
190, (1953). 14,15
Koutikov, V., "Quelques aspects de lIfvolution recente du
droit fluvial international" ifiLes coursd'eauinter-
nationaux, Conference de Lagonissi, 15 note 8, 36 (1967). 16,17
Lauterpacht, H., The Fufidti6n6f Law in the International

Community, 298 (1933). 14
3 Private LawSources and Analogies of 2,3,4,
Interfiational'Law, .138, 145, 155, 167, 170 (1927). 19,25
The Law of International Drainage Basins, 49 (Garretson,
Hayton and Olmstead ed. 1967). 18
Lester, P., "Equitable Utilization" in The Law of Inter-
national Drainage Basins, 49 (Garretson, flayton and
Olmstead ed. 1967). 18
Livingston, D., "Science, Technology and International
Law: Present Trends and Future Developments", in The
Future of the International Legal Order Vol. IV: The
Structure of the Interfiati6nal Envitonment, 100 (Black
and Falk ed. 1972). 19
McNair, A., (Lord), The Law of Treaties 29, 55, 467, 493, 1,2,5,
518, 685, 688 (2d rev. ed. 1961). 7,8,10
MacNeill, JoW., Environmental Management, 158 (1971). 21
Oppenheim, L., International Law, 487 (7th ed. Lauterpacht
ed. 1948). 3
_ International Law 345, 346, 877 (8th ed.
Lauterpacht ed. 1955). 2,14,15
Patry, A., Le regime des cours d'eau internationaux, 11
(1960). 16
Saliba, S.,'TheJ6drdanRir Dispute, 49, 66 (1968). 13,17
Sevette, P.;"Legal "Aspects6 fHd6.Elctid' Deiloent
of RiVers and -Lak&s-6f-C6miu 'fiterest,-
U.N. Doc.
D/ECE/136 (1952) E/ECE/EP 98 Rev. 1, 209-13. 21
Smith, H.A.,-The*Ed6n6mic Uses 6f Iternati6nal'Rivdrs,
149 et'seq. 152 (1931). 17,20
Cx)
Index of Authorities conttd Page
Sorenson, M., Manual of Public International Law, 329,30,

565, 566 (1968). 11,23,24
H.& J. Taubenfeld, "Modification of the Human Environment"

in The Futre of the Iiternatioinal Legal Order Vol. IV:
*The Structukie of the* Iiternati6fal Envir6nment, 130
(Black and Falk ed. 1972). 20
Vasarhelye, I.,'Restitti6n ifi Internationa1 Law, 10 (1964). 23
JOURNALS
Andrassy, "Les relations internationales de voisinage",

79 Hague Recueil 112 (1951). 18,19
, "Lutilisation des eaux des bassins fluviaux
internationaux" 16 Revue Egyptienne de Droit Inter-
national, 39 (1960). 21
Austin, "Canadian-United States Practice and Theory Re-

specting the International Law of International Rivers:
A Study of the History and Influence of the Harmon
Doctrine" 37 Can. Bar Rev. 408, 442-43 (1959). 17
Bourne, "Procedure in the Development of International

Drainage Basins" 22 U. of Toronto L.J. 73 et passim
(1972). 20
_ "Procedure
, in the Development of International
Drainage Basins: The Duty to Consult and Negotiate"
1972 Canadian Yearbook of International Law 212. 21
S "The Right to Utilize the Waters of Interna-
tional Rivers", 1965 Canadian Yearbook of International
Law 203, 221, 267-6:8'et passim (1965). 11,13'16
Cardona, "El R6gimen Juridico de Los Rios Internacionales",

56 Revista de Derecho Internacional 24-26 (1949). 16
Clayton, Hearing Before Committee on Foreign Relations

on Treaty with Mexico Relating to Utilization of Waters
of Certain Rivers, 79th Cong. 1st Sess. Pt. 1 (1945)
97-98. 17
Colliard, "Evolution et aspects actuels du regime juridique
des fleuves internationaux", 125 Hague Recueil 359, 384,
390 et'seg. (1968). 12,16,17
Dickstein, "International Law and the Environment: Evolving
Concepts". 1972 Yearbook of World Affairs 251. 15
Eagleton, "The Use of the Waters of International Rivers"

33 Can. Bar Rev. 1021, 1025 (1955). 14,18
(xi)
Fawcett, "The Legal Character of International Agreements",

1953 British Year Book of International Law 387. 2
Goldie, "International Principles of Responsibility for
Pollution", 9 Colum. Journal of Transnational Law 307
(19701. 20
Gottlieb and Dalfen, "National Jurisdiction in International
Responsibility: New Canadian Approaches to International
Law", 67 Am. J. Int'l Law 242 (1973). 20
Griffin, "The Use of Waters of International Drainage

Basins under Customary International Law", 23 Am. J.
Int'l Law 80 (1959). 23
Hambro, "The Human Environment:, Stockholm and After",
1974 Yearbook of World Affairs 211. 11
Jenks, "Liability for Ultra-Hazardous Activities in Inter-
iational Law", 117 Hague Recueil 122, 124, 174 (1966). 15,20
Laylin and Bianchi, "The Role of Adjudication in Interna-

tional River Disputes", 53 Am. J. Int'l Law 31, 48
(1959). 20,24
Levy, "La responsabilite pour omission et la responsabilite
pour risque en droit international public" 65 Revue
Generale de Droit Int. Public 748 (1961). 20
Poch de Caviedes, "De la clause 'rebus sic stantibus' ' la
clause de revision dans les conventions internationales",
118 Hague Recueil 193 (1966). 3
Rubin, "Pollution by Analogy: The Trail Smelter Arbitration"
50 Oregon Law Rev. 247 (1971). 19
Sauser-Hall, "L'utilisation industrielle des fleuves in-

ternationaux", 83 Hague Recueil 524, 554-55 (1953). 16,23
Schwarzenberger, "Uses and Abuses of the 'Abuse of Rights'
in International Law", 1957 Transactions of the Grotius
Society 42. 22,23
Shaker, "Fundamental Change of Circumstances or the Inter-
national Law Commission and the Doctrine Rebus Sic
Stantibis" 23 Revue Egyptienne de Droit International
117 (1967). 3
Smith, "Waters of the Jordan", 1949 International Affairs

415. 1
(xii)
JURISDICTION
The parties submit the present dispute, by special agreement
under Article IV of the 1923 Treaty of Amity, Friendship and Eco-
nomic Cooperation, to a chamber of the International Court of
Justice.
The said Article IV makes provision for the submission of dis-
putes arising under the Treaty "to the Permanent Court of Inter-
national Justice or to a special chamber of that Court."
Article 35 of the Statute of the International Court of Jus-
tice provides that: "1. The Court shall be open to the states
parties to the present Statute." Both Karma and New Helios, as
members of the United Nations, are "... ipso facto parties to the
Statute of the International Court of Justice," by virtue of
Article 93 of the Charter of the United Nations.
Article 36 of the Statute of the International Court then pro-
vides as follows:
1. The jurisdiction of the Court comprises all cases which

the parties refer to it and all matters specially pro-
vided for in the Charter of the United Nations or in
treaties and conventions in force.
And, continuing at Article 37,
Whenever a treaty or convention in force provides for refer-

ence of a matter to a tribunal to have been instituted by the
League of Nations, or to the Permanent Court of International
Justice, the matter shall, as between the parties to the pre-
sent Statute, be referred to the International Court of Justice.
Finally, Article 26 of the Statute allows the Court to form
chambers "composed of three or more judges", which shall deter-
mine cases if the parties so request.
It must therefore follow that the Court as presently composed

(xiii)
has jurisdiction to resolve the present dispute submitted to it.
In addition, by virtue of the enabling provisions of the Statute
of the International Court of Justice (Articles 36 and 38), the
Court may settle the full range of questions presented.

(xiv)
STATEMENT OF FACTS
The parties have agreed to the Statement of Facts which
has been filed before the Court; the parties have also waived
the defences of sovereign immunity and the local remedies
rule (F-5).*
* Page references to the Statement of Facts are cited thus;

e.g. (F-1) for page one of the agreed Statement.
(XV)
QUESTIONS PRESENTED
Whether Karma is responsible for the harm which has been
or may be inflicted upon the environment of New Helios under the
Treaty of 1923.
II
Whether Karma is responsible for the harm which has been
or may be inflicted upon the environment of New Helios under
general principles of international law.
III
The nature of the remedy, if any, to which New Helios
may be entitled.
(xvi)
SUMMARY OF ARGUMI'T
New Helios is not barred from pursuing its claim either by
laches or acquiescence.
Karma is responsible for the harm which has been or may be
inflicted upon the environment of New Helios under the 1923 Treaty
of Amity, Friendship and Economic Cooperation. The Treaty is an
agreement of legal obligation. It has not been terminated, nor has
its operation been suspended, by virtue of the doctrine rebus sic
stantibus which even if it does exist as a rule of international
law, is inapplicable to the 1923 Treaty.
Karma has breached the provisions of the 1923 Treaty as in-
terpreted according to general principles of international law. It
is responsible in international law for the activities of both the
mill complex and town and of the nuclear plant, the operations of which,
having resulted in the pollution of common waters cc'ntrary to the-
provisions of the 1923 Treaty, constitute breaches of the Treaty
rendering Karma liable to New Helios for any resulting injury to health
or property in New Helios.
International law recognizes liability for harm inflicted
through water pollution by one state on another. This liability may
be based upon customary rules of international law or alternatively
on general principl.es of law recognized by civilized nations, and is
attested by judicial decisions and the writings of the most highly
qualified publicists. Karma may not escape liability by reliance

(xVi)
on any recognized doctrine of international law. The doctrine of'
absolute territorial sovoreignity is not a recognized principle
of international law. The equitable utilization doctrine is not a
principle of international law de l lata and even if it. were, it
does not absolve Karma from liability.
New Helios is entitled to relief from Karma due to the ex-
tensive damage done to New Helios by the pollution of the Peace
River system attributable to Karma. The relief should be calculated
to restore the status auo ante insofar as possible and should con-
sist of the cessation of the illegal pollution and an indemnity for
damage caused.
-I -
I. NEW HELIOS IS NOT DEBARRED FROM PURSUING ITS CLAIM EITHER BY

LACHES OR ACQUIESCENCE.
A. Laches: New Helios has not been dilatory in advancing its

claim.
While the mill complex has been operating for ten years, it is
nevertheless to be observed that pollution is, by its very nature,
generally slow to manifest itself. It is, moreover, relevant,
that under Paragraph 1 of Article IV of the 1923 Treaty, disputes
between the two States were to be settled "amicably and equitably",
and, by Paragraph 2 of the same Article, were to be submitted to
arbitration only if not settled "within a reasonable time". New
Helios advanced its claim, accordingly, only after it had become
apparent that the dispute could not be otherwise settled, which
course of action was fully in accord with the legally binding
provisions of the Treaty. New Helios has not, therefore, been
guilty of laches.
B. Acquiescence: New Helios did not acquiesce in the breach

of Treaty by Karma.
New Helios may not be deemed to have acquiesced in the vio-
lations by Karma of the 1923 Treaty unless such acquiescence was
incapable of reasonable explanation and had not been negatived by

1
protests reserving its rights. It has been shown that the course
of action pursued by New Helios in protecting its right under the
Treaty may be explained by the obligations imposed in this respect
by the Treaty itself, namely, to attempt to settle disputes
1. Lord A. McNair, The Law of Treaties 518 (2d rev. ed. 1961)
- 2 --
"amicably"; in addition, New Helios persistently protested the
violations by Karma of the Treaty, although these protests were
ignored by the Respondent.
II. KARMA IS RESPONSIBLE FOR THE HARM WICH HAS BEEN OR MAY BE
INFLICTED UPON THE ENVIRONMENT OF NEW HELIOS UNDER THE 1923
TREATY.
A. The 1923 Treaty is legally binding upon the States under

general principles of international law.
All international treaties are sources of law for the parties

2.
who conclude them. In effect, they are agreements of a contrac-
tual nature between States, creating legal rights and obligations

3
between the parties. Every treaty is binding upon the parties to
4
it and must be performed by them in good faith: pacta sunt servanda.
B. The parties themselves intended that the Treaty be estab-

lished as an agreement of legal obligation.
The intention of the parties to be legally bound by the Treaty
is evidenced by the provision in Article IV for the settlement by

5
judicial process of disputes arising out of it.
C. Thelreaty has not been terminated, nor has its operation

been suspended, by virtue of the doctrine rebus sic stan-
tibus.
1. The doctrine has not been established as a rule of in-

ternational law
The definitions of the doctrine which have been given by pub-
licists "... vary from one another in such a fundamental way,
2. H. .Lauterpacht, Private Law Sources and Analogies of Inter-

national Law 155 (1927).
3. 1 L. Oppenheim, International Law 877 (8th ed., H. Lauterpacht,

ed., 1955).
4. Vienna Convention on the Law of Treaties, art. 26, 63 A.J.I.L.

875 (1969). According to McNair, "no Government would decline
to accept the principle pacta sunt servanda". Lord A. McNair,
supra n. 1 at 493.
5. Fawcett, "The Legal Character of International Agreements",

1953 B.Y.B.I.L. 381, 387.
-3-
despite superficial similarities, that one may safely say that

6
there is no definition upon which a majority of writers agree".
As to state practice, the doctrine has never been invoked by a

7
State without being challenged by other States. It is also note-
worthy that Lauterpacht has referred to the doctrine as being not

8
a rule of law but rather a "maxim of politics".
2. In any event, the doctrine is inapplicable to the 1923

Treaty
a) The doctrine does not apply to a treaty stipulating

an international servitude.
Article II of the Treaty, requiring each party to use its
territory so as not to pollute common waters "so as to injure the
health or property in the other State", stipulates an inter-
national servitude, that is, an "... exceptional restriction made
by a treaty on the territorial supremacy of a State by which a
part or the whole of its territory is in a limited way made per-

9
petually to serve a certain purpose or interest of another State".
The doctrine may not be enforced in respect of treaties stipu-

10
lating international servitudes.
6. C. Hill, The Doctrine of "Rebus Sic Stantibus" in Inter-

national Law 7 (IX University of Missouri Studies, 1934).
2ore recently, this has been affirmed by Shaker, "Fundamental
Change of Circumstances or The International Law Commission
and the Doctrine Rebus Sic Stantibus" 23 Revue Egyptienne De
Droit International 109, 117 (1967), and Poch de Caviedes, "De
la clause 'rebus sic stantibus' a la clause de revision dans
les conventions internationale.' 118 H.R. 105,193 (1966).
7. C. Hill, supra, n. 6, at 90.
8. H. Lauterpacht, supra, n. 2, at 170.
9. 1 L. Oppenheim, International Law 487 (7th ed., H. Lauterpacht,

ed., 1948).
10. G. Haraztiw Some Fundamental Problems of the Law of Treaties

394 (1973).
-4-
b) There has been no fundamental change of circumstances.
It is clear in this respect that even the proponents of the
doctrine have asserted the need to confine its scope within nar-
row limits and to regulate strictly the conditions under which it
may be invoked. The Vienna Convention on the Law of Treaties,

" 11
Article6, outlines the operation of the doctrine as follows:
1. A fundamental change of circumstances which has occurred

with regard to those existing at the time of the conclusion
of a treaty, and which was not foreseen by the parties, may
not be invoked as a ground for terminating or withdrawing
from the treaty unless:
(a) the existence of those circumstances constituted an

essential basis for the consent of the parties to be
bound by the treaty; and
(b) the effect of the change is radically to transform

the extent of obligations still to be performed under
the treaty.
Lauterpacht, on the other hand, would restrict application of
the doctrine to those situations in which there has taken place
such a change of circumstances as to render fulfillment of the
treaty dangerous to the "vital interests" of a State party to the

12
treaty. It is significant that "the fundamental change of cir-
cumstances resulting in such consequences is an objective criterion
which may be established in a manner independent of the appraisal

13
of the parties".
The industrialisation of Karma subsequent to 1923 does not,
upon the stipulated facts, constitute a fundamental change of
circumstances within any of the formulations of the doctrine
rebus sic stantibus. Indeed, it has been stated that "this occurs
11. Supra, n. 4.
12. H. Lauterpacht, supra, n. 2, at 167.
13. G. Harazti, supra n. 10, at 384-385.

most plainly in the case of a physical change such as the per-
14
manent drying-up of a river ... "
In any case, "... if the event alleged to have dissolved the
treat has come about as a result of the action of one of the

parties to it, it is unlikely that an international tribunal would
15
sustain the plea of the party that the treaty has come to an endt'.
Karma may not therefore rely upon its own industrialisation as a
grounds for excusing breach of a legally binding treaty obli-
gation which it now finds inconvenient to fulfil.
D. Karma has breached the provisions of the 1923 Treaty as in-

terpreted according to general principles of international
law.
1. The spirit of the Treaty is to be observed.
International treaties are to be interpreted, and treaty ob-
ligations carried out, in good faith "... according to the common
and real intention of the parties at the time the treaty was con-
cluded, that is to say, the spirit of the treaty and not its mere
16
literal meaning". It follows that "... a party may not be allowed
to make capital out of inexact expressions or mistaken descriptions
in a treaty, when the real and common intention can be ascertained

17
and the error established".
2. The Treaty is to be liberally construed in the light of

its object and purpose, and so as to enlarge rights
which may be claimed under it by the parties.
"Treaties are to be liberally construed, so as to effect the
apparent intention of the parties .... When a treaty provision

/
14. Lord A. McNair, supra n. 1, at 685.
15. Id., at 688.
16. Bin Cheng, General Principles of Law as Applied by Inter-

national Courts and Tribunals 114 (1953).
17. Bin Cheng, supra n. 16,at 118.

-6-
fairly admits of two constructions, one restricting, the other
enlarging, rights which may be claimed under it, the more liberal
18
interpretation is to be preferred". A treaty is therefore to be
19
interpreted "in the light of its object and purpose".
The "object and purpose" of the 1923 Treaty are made manifest
by its title, namely, the development and maintenance of "amity,
friendship and economic co-operation" between Karma and New Helios.
The prohibition against pollution stipulated by Article 11 is
therefore to be construed in this light, and, in any instance of
ambiguity, consistently with the protection of either State
against pollution of common waters by the other, that is, so as
to enlarge rights claimed under the Treaty.
3. The Treaty must be interpreted so that it becomes

effective in practice.
... if by means of the method of interpretation two possible

results have been reached, the one of which guarantees the
effectiveness of the treaty, whereas the other invalidates
it, i.e., precludes its practical prevalence, the former
result haste be accepted as correct.
An interpretation "cannot lead to an absurd result, i.e., it

21
cannot render ineffective the treaty or a provision of it".
To adopt an interpretation of the 1923 Treaty which would have
the effect of permitting Karma to continue its pollution of inter-
national waters would render ineffective the provisions of Art. II
thereof, and must therefore be rejected in principle.
18. Nielson v. Johnson (1929), 279 U.S. 47 (Stone, J.). This has
been affirmed by the United States Supreme Court in Kolovrat v.
Oregon (1961), 360 U.S. 187 (Black, J.).
19. Vienna Convention on the Law of Treaties, Art. 31, supra n. 4.
20. G. Harazti, supra n. 10, at 166-167.
21. Id., at 168.

-7-
E. Karma, in polluting the waters of the International Lake

and the Lower Peace River, stands in breach of the 1923
Treaty.
1. Karma is responsible at international law for the ac-

tivities of both the mill complex and town and of the
nuclear plant.
The nuclear plant is a state-owned corporation [F-3]. Its

pollution of the Lower Peace River is therefore a breach of treaty
by Karma itself. While the mill complex, on the other hand is
privately owned [F-2], nevertheless
the responsibility of the State ... consists of a duty

to take all reasonabl'e measures of prevention and punish-
ment to ensure that its subjects shall not do the things
prohibited by the treaty; ,a failure in that duty constltutes
an international delinquency on the partvof the State.
Karma has neither taken nor attempted to take any such measures.
It has therefore been delinquent in fulfilling its obligations
owed to New Helios under the.1923 Treaty.
2. Karma has breached the provisions of Article 1 of the

23
1923 Treaty.
Acts done by Karma which have the effect, actual as well as
potential, of inflicting harm upon the environment of New Helios
must necessarily be "matters of mutual interest" as contemplated
by Art. 1. In the construction and operation of both the mill and
the nuclear plant, Karma was therefore under a legally binding
obligation to co-operateand consult "as appropriate" with New
Helios. Its failure to consult at all constitutes a breach of
the treaty.
Expressions such as "appropriate" occurring in a treaty " ...
are not stereotyped as at the date of the Treaty but must be under-
22. Lord A. McNair, supra, n. 1, 55.
23. See Annex B.

-8-
stood in the light of the progress of events and changes in

24
habits of life". In effect, then, the requirement to co-operate
and consult as appropriate on matters of mutual interest is made
ambulatory.
3. Karma has breached the provisions of Article II,

Paragraph 1, of the 1923 Treaty z
It is significant that the stipulated prohibition against
pollution is said to be "in keeping with the general aim of amity,
friendship and economic co-operation". This manifests the
parties' clear intention that the provision be given a broad and
liberal interpretation consistent and "in keeping with" the stated
objectives underlying the Treaty. In this respect it is to be
noted that "... the discovery of the intention of the parties is

26
the goal of interpretation".
a) The operations of the mill complex and town are in

breach of Article II, Paragraph 1, of the 1923 Treaty
The pollution of the Upper Peace River by the mill complex and
town does, upon a proper interpretation of Para. 1, constitute
pollution of "boundary waters or other waters running between "the
two States notwithstanding that the Upper Peace is in fact wholly
situate within the territory of Karma. Bearing in mind the under-
lying objectives of the Treaty, it follows that the true expressed
intention of the parties was to prohibit either from CAUSING the
pollution of "boundary waters or other waters running between
them", so that the activities of the mill complex and town, having
25. See Annex B.
26. W. Friedmann, 0. Lissitzyn, and R. Pugh, International Law,

378 note (1969).
-9-
the inevitable and clearly foreseeable result of causing the
pollution downstream of the International Lake and Lower Peace
River, constitute a breach of Para. 1 of the Treaty.
b) The operations of the nuclear plant are in breach of

Article II, Paragraph 1, of the 1923 Treaty.
Although the nuclear plant is currently operating at only 10%
of its total capacity [F-3], nevertheless, in response to the
first question presented to the court, Karma is responsible for
any harm which has been AND MAY BE inflicted upon the environment
of New Helios as a result of the plant's operation.
The term "pollution" in Para. 1 contemplates thermal pollution.
Water pollution, in its reference to causes, includes thermal
pollution arising from the increase in temperature caused by

27
hydro-electric works. No distinction in principle may be drawn
between nuclear and hydro-electric works in this respect. The

Secretariat of the United Nations Conference on the Human Environ-
ment includes, as a familiar "substance" contributing to pollution,

28
heat from fossil-fuel and nuclear power stations.
Even as understood in 1923, the concept of "pollution" compre-
hended thermal pollution. It was recognized in 1893 that pollution
consists in the "doing of -something which damages the natural

29
qualities of the water". In fact, the use of water and its return
to the waterway at a raised temperature was held to constitute un-
27. J. Barros and D. Johnston, The International Law of Pollution

6 (1974).
28. Doc. A/Conf. 48/8.
29. John Young & Co. v. Bankier Dist. Co. [1893] A.C. 691,698
(H. L.).
- 10 -
30
lawful pollution at least as early as 1855 in England and
31
1904 in the United States.
c) Karma's violations of the 1923 Treaty have resulted
in injury to health and property in New Helios.

The pollution created by the mill complex and town, having
rendered the waters of the International Lake undesirable for
human potation, and having further resulted in an increase in the
incidence of typhoid around the Capital of New Helios [F-3], has
clearly injured the health of the Applicant's population. In

addition, combined with the pollution from the nuclear plant, it
has adversely affected the operations of the Lower Peace Brewery,
one of the most successful industries of New Helios, and has
thereby injured property in the Applicant State. The pollution

of common waters by Karma is, therefore, actionable under the
Treaty.
4. Karma has breached the provisions of Article II, Para-

graph 2, of the 1923 Treaty3 4
Para. 2 creates a valid obligation upon the parties to negotiate
in good faith; refusal to do so [F-4,5] amounts to breach of the

33
obligation by Karma.
III. KARMA IS RESPONSIBLE UNDER GENERAL PRINCIPLES OF INTERNATIONAL

LAW FOR HiARM INFLICTED UPON THE ENVIRONMENT OF NEW HELIOS.
A. State responsibility for damage arising from the pollution

of international watercourses is a recognized principle of
international law.
30. Tipping v. Eckersley (1855) 2 K & J 264.

31. Walker Ice Co. v. American Steel & Wire Co. 185 Mass. 463; 70
N.E. 937 (1904).
32. See Annex B.

- 11 -
1. State responsibility for pollution damage is an accepted

Principle of customary international law.
The general rules for the utilization of international river
basins "are to be found among the rules of international custom-
ary law .... The basic'rule may be said to express the duty to
use river waters in a manner which is not detrimental to the in-

34
terests of other riparian states," and thus, "a serious inter-
ference ... with the use and enjoyment of an international river

35
[is] ... unlawful."
a) State practice as evidenced by U.N. declarations and

conferences points to liability for harmful pollution.
The deleterious effects of pollution and the formidable threat
it poses to the global environment are matters of increasing con-
cern to international organizations. At the recent U.N. Confer-
ence on the Human Environment held in Stockholm and attended by

36
most of the nations of the world, there was "general acceptance
in Principal 21 of the Stockholm Declaration, of the principle of

37
State responsibility for damage beyond territorial limits ...
although no restrictions were formulated in respect of solely
internal pollution, as follows:
States have, in accordance with the Charter of the United

Nations and the principles of international law, the sovereign
right to exploit their own resources pursuant to their own
34. M. Sorenson, Manual of Public International Law 329,30 (1968).
35. Bourne, "The RighttD Utilize the Waters of International

Rivers" 1965 C.Y.I.L. 221. See also Hambro, "The Human En-
vironment: Stockholm and After" 1974 Ybk. of World Affairs 211.
36. U.N. Doc. A/Conf./48 C.R.P. 26, 1972.
37..J. Barros and D. Johnston, supra n. 27, 71-72.

- 12 -
environmental policies and the responsibility to ensure

that activities within their jurisdiction or control do not
* cause damage to the environment of other States
38 or of areas
beyond the limits of national jurisdiction.
The above principle reiterates a conclusion reached by the U.N.'s
Economic Commission for Europe that:
in accordance with established principles of customary in-

ternational law no state should pass on its waters to its
neighbouring states in such a polluted condition that this
water would seriously damage the interest of its neighbour-
ing states. 3 9
b) State practice as evidenced by bilateral and multi-

lateral treaties establishes the illegality of harm-
ful pollution international law.
An extensive examination of water treaties indicates that such

40
treaties often include articles forbidding pollution. Typical
of these is the Boundary Waters Treaty between Great Britain
(Canada) and the United States, 1909, which provides in Art. IV
that "boundary waters and waters flowing across the boundaries
shall not be polluted on either side to the injury of health and

41
property on the other." A study of European water treaties, dis-
closes "a fairly uniform pattern" which consistently provides that
"that no state may effect any work on that part of the river within
38. U.N. Doc. A/Conf./48 C.R.P. 26, 1972, Principle 21.
39. E.C.E., Conference on Water Pollution Problems in Europe,

1961 in The Future of the International Legal Order Vol. IV:
The Structure of the International Environment 148 (C. Black
and R. Falk ed. 1972). [Hereinafter cited as Black and Falk].
40. eg. Border Treaty between Belgium and W. Germany, 1956, Art.
7. U.N. Doc. ST/LEG/Ser.B/12 no. 151, 533,34; Frontier Treaty
between Norway and the U.S.S.R., 1949, Art. 14 ibid. no. 238,
882. Indus Waters Treaty between India and Pakistan Art. 4
para. 10 ibid. no. 97, 305 and Convention on the Protection of
Lake Constance Against Pollution, 1960 ibid. no. i27, 438. See
further Colliard, "Evolution et aspects actuels du regime
juridique des fleuves internationaux" 125 H.R. 390 et seq. (1968).
41. U.N. Doc. ST/LEG/Ser.B/12 no. 79, 261.

- 13 -
its territory which may result in a serious injury to a co-riparian

42
state, without the consent of that state." This trend, indicative
of state practice, is not belied by treaties from other geograph-
ical areas.
c) Formulations of principles by international associa-

tions posit state responsibility for pollution as a
rule of customary international law.
The learned associations, institutes and other bodies that
have formulated principles relating to the utilization of inter-
national river basins coincide in proposing state responsibility
for harm that results from pollution, at least where the harm is
43
substantial. As long ago as in 1911, the Madrid session of the
International Law Institute resolved, inter alia, that "[a]ll in-
jurious pollution of the water and discharge of noxious matter

44
(from factories, etc.) is forbidden." A similar attitude to pol-
lution is reflected in the Conferences of the International Law
Association at Dubrovnik in 1956 and New York two years later.
This concern of the Association culminated in the authoritative

45
formulation in 1966 of principles known as the Helsinki Rules.
The Helsinki Rules, which may in many respects be considered a
codification of existing customary rules on the subject provide
in Art. X that:
a State (a) must prevent any new form of water pollution or

any increase in the degree of existing water pollution ...
which would cause substantial injury in the territory of a
42. S. Saliba, The Jordan River Dispute 49 (1968).
-43. See Bourne, supra n. 35, 267,68 et passim.

44. Quoted from G. Kaeckeenbeeck, International Rivers 181 (1918).
45. I.L.A., Report of the 52nd Conference, Helsinki, 1966 496

(1967).
- 14 -
co-basin State, and (b) should take all reasonable measures

to abate existing water pollution ...46
2. State responsibility for harmful pollution may be based,

in the alternative, upon general principles of law re-
cognized by civilized nations.
a) Responsibility may be based on the 'sic utere tuo

ut alienum non laedas principle'.
It seems safe ... to state as a general principle of inter-

national law that, while each state has sovereign control
within its own boundaries, insofar as international rivers
are concerned, a state may not exercise that control without
taking into account the effects upon other riparian states
47
... sic utere tuo ut alienum non laedas.
The principle was accepted as a basis for state responsibility

48
by the International Law Association in the Helsinki Rules and
49
is supported by many eminent publicists.
b) Responsibility may also be based on the doctrine of

abuse of rights.
The abuse of rights doctrine has been applied in practice for

50
close to a century and is "one of the basic elements of the in-
51
ternational law of torts." The doctrine which has been"recog-
nized in principle both by the Permanent Court of International
52
Justice and the International Court of Justice" may form the
46. I.L.A., supra n.45, 496.

47. Eagleton, "The Use of the Waters of International Rivers" 33
Can. Bar Rev. 1021 (1955).
48. I.L.A., supra n.45, Comment on Art. X at 497.
49. eg. 1 L. Oppenheim, supra n.3, 346 and B. Cheng, supra n.16,
121.
50. A-C. Kiss, L'abus de droit en droit international 10 (1953).
51. H. Lauterpacht, The Function of Law in the International

Community 298 (1933).
52. B. Cheng, supra n.16, 121 (Free Zones Case [1932] P.C.I.J.
ser. A/B no.46, 167, Anglo-Norwegian Fisheries Case [1951]
- 15 -
53
basis of an international delinquency.
3. The principle of state liability for harm caused by
pollution is in accordance with judicial decisions.
Although there are few international precedents in the field
of transnational pollution, it may safely be said that those in-
ternational and federal judicial tribunals that have dealt with
the problem favour liability for harmful pollution:
Claims by an injured State for abatement or compensation in

respect of damage caused by fresh water pollution originating
within the jurisdiction of another State must be dealt with
on the basis of general international law, including the
principle affirmed in the Corfu Channel Case that every State
has the obligation 'not to allow knowingly its territory
be used for acts contrary to the rights of other States.'
The Lake Lanoux and Trail Smelter Arbitrations may also be looked
to for principles applicable in such cases. The Lake Lanoux Tri-
bunal referred to pollution whereby the waters "would have a
chemical composition or a temperature or some other characteristic

55
which could injure Spanish interests" as a "possible ground of
56
liability". In the Trail Smelter Case, the "locus classicus on
liability for extraterritorial damage to property arising from

57
pollution", the Tribunal concluded that "no State has the right
to use or permit the use of its territory in such a manner as to
I.C.J. Rep. 116,142 and Advisory Opinion on the Competence of

the General Assembly [1950] I.C.J. Rep. 4,15 (D.O. Judge
Alvarez)).
53. 1 L. Oppenheim, supra no.3, 345 and A-C. Kiss, supra n.53, 190.
54. Jenks, "Liability for Ultra-hazardous Activities in Inter-

national Law" 117 H.R. 124 (1966).
55. Lake.LdiotX Arbitration (France v. Spain) 24 I.L.R. 101,23
(1957).
56. Jenks, supra n.54, 122.
57. Dickstein, "International Law and the Environment: Evolving

Concepts" 1972 Ybk. of World Affairs 251.
- 16 -
cause injury ... to the territory of another or the properties or

58
persons therein ." Several American and European municipal
59
tribunals support the above conclusion.
4. The principle of responsibility for harmful pollution
is accepted by most publicists.
The vast majority of modern publicists agree "that all serious
interference by one riparian with the use and enjoyment of an in-

60
ternational river by another is ipso facto unlawful". While good
61
neighbourliness requires that minor inconveniences be overlooked,
the same principle applies "une obligation reciproque de ne pas

62
leser l'Etat voisin." Where this obligation is not met, state
63
responsibility is engaged.
B. Karma cannot escape responsibility for harm caused to the

environment of New Helios by reference to any recognized
doctrine of international law.
58. Trail Smelter Arbitration (Can. v. U.S.) 35 A.J.I.L. 684,716

(1941).
59. eg. Missouri v. Illinois, 200 U.S. 496 (1906), New York v.
New Jersey 256 U.S. 296 (1921) and New Jersey v. New York
City 283 U.S. 473 (1931); Wurttemburg and Prussia v. Baden
(Staatsgerichthof, Germany) [1927-28] Ann. Dig. 128 (No. 86):
"No state has the right to cause substantial injury to the
interest of another State by the use it makes of the waters
of a natural waterway."
60. Bourne, supra n.35, 221. See also Colliard, spra n.39, 384:
"Comme le droit interne, le droit international comporte la
defense contre la pollution"; A. Patry, Le regime des cours
d'eau internationaux 11, (1960); Bourne, supra n.35, 203.
Cardona, "El Regimen Juridico de los Rios Internacionales"
56 Rev. de Derecho Int. 24,26 (1949) and 2 L. Cavare Le droit
international public positif 783 (2d ed. 1962).
61. P. Fauchille, Traite de droit internationale public 449 (8th

ed. 1925).
62. Sauser-Hall, "L'utilisation industrielle des fleuves inter-

nationaux" 83 H.R. 554,55 (1953) transl: "a mutual obligation
not to harm a neighbouring State."
63. Koutikov, in Les cours d'eau internationaux, Conference de

Lagonissi, 36 (1967).
- 17 -
1. The doctrine of absolute territorial soverbignty is not

a recogized rinciple of international law.
The doctrine of absolute territorial sovereignty, commonly
called the Harmon Doctrine, to the effect that "there is no' duty
or obligation in international law on any state to restrain its
use of the waters within its territory to accommodate the needs of

64
another state," has been rejected by "an overwhelming number of
the publicists who have considered the subject of international

65
water rights", and "has never been followed either by the United
66
States oi any other country".
2. The equitable utilization doctrine is of no avail to Karma
a) The equitable utilization doctrine is not an estab-

lished principle of international law.
The doctrine of equitable utilization as formulated by publi-

67
cists and by the International Law Association in the Helsinki
68 69
Rules is not a principle of international law de lege lata.
While some writers on the subject consider that the doctrine has a
place in international law, it would be premature to consider it
as anything but a principle de lege ferenda.
64. Austin, "Canadian-United States Practice and Theory Respec-

ting the International Law of International Rivers" 37 Can.
Bar Rev. 408 (1959).
65. S. Saliba, supra n.42, 66. See also Koutikov, supra n. 63, 15
n.8, H.A. Smith, The Economic Uses of International Rivers,
149 et seq. (1931) and Colliard, supTa n.39, 359.
66. Clayton, Hearings before Comm. on Foreign Relations-on Treaty

with Mexico Relating to Utilization of Waters of Certain
Rivers, 79th Cong. ls.t Sess. Pt. 1 (1945) 97-98.
67. eg. F. Berber, Rivers in International Law 25 (1959), Austin,

supra n.64, 442-43, and J.Barros and D.Johnston, supra n.27,75.
' .
68. I.L.A., supra n.45, 477 et seq.

69. See C. Jenks, The Prospects of International Adjudication
528 (1964) and F. Berber, supra n.67, 40-42.
- 18 -
b) In the event that the doctrine of eqjuitable utiliza-

tion is accepted as a principle of international law,
it does not absolve Karma from liability.
Karma's use of the international drainage basin is not consis-
tent with the principles of equitable utilization, and its waste-
ful and ecologically reprehensible use of shared water resources
should not take precedence over New Helios' existing beneficial

70
uses. That a reasonable and beneficial existing use should be
71
entitled to special protection is self-evident, and New Helios'
use of the Peace River system is eminently reasonable and bene-
ficial, consisting, as it does, primarily of uses traditionally

72
given a high priority: domestic uses. Karma's mill complex, how-
ever, in disregarding the recommendations of the W.D.A. that it
install treatment facilities [F-2] and continuing to discharge
industrial wastes untreated into the Peace River system, cannot
be held to be making a reasonable or equitable use of shared water
resources. In fact, the danger to human life posed by Karma's
polluting the system should suffice, as was held by the I.L.A.,
to render such pollution "inconsistent with the principle of
equitable utilization" and to bring about "an absolute duty to

73
abate the pollution". Moreover, while a legal tribunal may decide
that there should be an equitable apportionment, "it is beyond
the competence of legal learning to decide what should be fair
70. The International Drainage Basin 23 (1963 ed. Chapman).
71. I.L.A., supra n.45, 493 and P.Lester in The Law of Interna-
tional Drainage Basins,49 (Garretson,Hayton and Olmstead ed.
1967).
72, See Eagleton, sura n.47, 1025, J. Barros and D. Johnston

supra n.27 17 and AndTassy, "Les relations internationales de
voisinage" 79 H.R. 112 (1951): "Les usages moderes pour es
besoins domestiques..,Jouissent toujours de la priorite."
73. I.L.A.,sUPra, n.45, 501.

- 19 -
74
shares to two independent states in the same waters."
c) The reguiromient- for substantial damage, if it exists,
has been met.
In the event the Court were to insist on substantial damage to
New Helios as a prerequisite for liability on the part of Karma,

75
and there is authority for the contrary view, such damage has in-
deed been caused. The International Law Association defines 'sub-
stantial damage' as any injury "which materially interferes with

76
or prevents a reasonable use of the water." In polluting Inter-
national Lake, Karma is clearly interfering with New lelios'
reasonable use of the water for drinking purposes and for indus-
trial and recreational purposes.
C. The state of Karma is responsible for all injuries inflic-

ted on the enVironment of New Helios.
Karma is sovereignly responsible for the injurious activities
of the state-owned nuclear power station, the privately-owned
paper mill and the 'shanty-town':
Whenever there is a legal obligation to act, a voluntary in-

action - by which is meant not necessarily an intended in-
action but simply an inaction which is not due to impossibil-
ity of acting otherwise - would constitute a breach of that
obligation, in other words, an unlawful act. 7 7
Thus, "a state is internationally responsible if its acts or those

78
of its citizens ... cause damage ... in another state."
74. Smith, "Waters of the Jordan" Int. Affairs 415 (1949).
75. Rubin, "Pollution by Analogy: The Trail Smelter Arbitration"

50 Ore. L.R. 247 (1971), for example.
76. I.L.A. supra n.45, 500.
77. B. Cheng, sura n.16, 1974. See also H. Lauterpacht, supra n.2,
138; D.Livingston, VScience, Technology and International Lawl,
in Black and Palk supra n.39, 104 and Andrassy, .sypra n.72:
"il y a obligation generald de ne pas faire ou de ne pas laisser
faire que soient provoques des dommages au prejudice de l'Etat
voisin".
- 20 -
D. Karma is in breach of a duty to give notice.
It is a rule of customary international law that states must
"abstain from any unilateral action that may affect the interests
of other riparian states without giving these states every oppor-
tunity of studying and expressing their opinion upon the questions

79
involved." The existence of such a customary rule is evidenced
by its not infrequent adoption by international associations in

80
declarations of principles and by its acceptance by the most
81
highly qualified publicists of the various nations. Indeed,
78. H.&J. Taubenfeld,"Modification of the Human Environment" in

Black and Falk supra n.45, 130. See also Gottlieb and Dalfen,
"National Jurisdiction in International Responsibility", 67
A.J.I.L. 242 (1973): "reflected in the unanimously endorsed
principles [of the Stockholm Declaration] is the idea of state
responsibility for damage arising from pollution caused by
state activities or by organizations or individuals under their
jurisdiction", Levy, "La responsabilite pour omission et la
responsabilite pour risque en D.I.P." 65 R.G.D.I.P. 748 (1961),
Goldie, "International Principles of Responsibility for Pol-
lution" 9 Colum. G.Transnational Law, 307. (1970) and Comment
to Article Xof the Helsinki Rules, I.L.A. supra n.45,500,
where the duty to take action about pollution is said to exist
"regardless of whether the pollution results from public ac-
tivity of the State itself ... or from conduct of private par-
ties-within its territory."
79. H.A. Smith, supra n.65, 152.
80. eg. the 1933 Declaration of Montevideo, 28 A.J.I.L. Supp. 59-

60 (1934),the 1957 Buenos Aires Resolution, 10 Inter-Am. Bar
Ass. Proc. 82 (1957) the Draft Convention on the Industrial and
Agricultural Use of International Rivers and Lakes, O.A.S.Off.
Rec. OEA/Ser.l/012 (English) CIJ-79; 4,7,13-14,20-21 and the
1961 Salzburg Resolution, 49 Annuaire de l'Institute de Droit
International, 38 (1961), which expressly prohibits works or
utilizations before notice (Art.5).
81. Bourne, "Procedure in the Development of International Drain-

age Basins" 22 U. Tor. L.J. 73 et passim (1972), Jenks, supra
n.54, 174: "any State proposing to sponsor or permit an ex-
periment, test or development scheme which may prejudice the
natural environment of another State should notify, in advance
the nature and anticipated and possible consequences...,Laylin
and Bianchi,"The Role of Adjudication in International River
Disputes"53 A.J.I.L. 48(1959):"The right to receive appropriate
and correct information on the existing regime and probable
- 21 -
it has been suggested that the obligation to give notice finds its
82
origin in the Charter of the United Nations. Karma's actions in
constructing the nuclear power station without notifying New
Helios of its intentions or affording New Helios the opportunity
to make representations as to its optimum location, places Karma
in breach of this customary norm and contributes another cogent
argument against Karma's position. Karma's breach was compounded
by its subsequent behaviour in refusing to negotiate with New

83
Helios. [F-4].
IV. NEW HELLOS IS ENTITLED TO RELIEF.
A. Harm has been and will further be done to New Helios by Karma
The raw sewage and industrial wastes emanating from the shanty-
town and mill complex respectively have so polluted boundary

84
waters as to injure both health and property in New Helios con-
trary to the provisions of the 1923 Treaty and to general principles
of international law. The level of pollution in International Lake
has become so high as to constitute a health hazard - as witnessed
changes to be effected in a common river is co-terminous with

the fundamental duty to respect a riparian's legitimate in-
terests" and Servette, U.N.Doc. D/ECE/136 (1952) E/ECE/EP 98
Rev. 1, 209-13.
82. Andrassy, "L'utilisation des eaux des bassins fluviaux inter-

nationaux", 16 Rev. Egyptienne de Droit Int. 39 (1960).
83. The Helsinki Rules, I.L.A., supra n.45, 501 (Art.XI) make ne-
gotiations mandatory in connection with the abatement of ex-
isting water pollution. Precedent of the highest authority
exists for the view that customary international law may re-
quire states to enter into negotiations with a view to
airlying at an agreement in the North Sea Continental Shelf
Cases [1969] I.C.J. Rep. 3, 46-7, 53-4. See also Bourne,
"Procedure in the Development of International Drainage Ba-
sins: The Duty to Consult and to Negotiate" 1972 C.Y.I.L. 212.
84. See MacNeill, Environmental Management 158 (1971): "A single

... paper mill ... can produce an organic waste load equiva-
lent to the sewage discharge from a large city."
- 22 -
by a recent rise in the incicence of typhoid - [F-3] and to render
its waters unfit for human potation or industrial use, thereby.
forcing the capital of New Helios and the world famous Lower Peace
Brewery to install sophisticated new purification facilities at
considerable cost. This state of affairs has restricted the re-
creational uses of the lake and necessitated the closing of the
beaches of the Capital, thereby reducing the amenities of the city
and adversely affecting New Helios' tourist industry. If the mill
and town continue polluting the lake and poisoning the environment
of New Helios, further sums will have to be expended on water
purification. As for the nuclear power plant, its thermal pol-
lution accelerates the eutrophication of the lake and should it
become fully operational will require the installation of cooling
lagoons by the Brewery.
B. Karma is under a duty to make reparation to New Helios.
The breach of any international obligation, whether of a con-

85 86
ventional or a customary nature or a "general principle of law
recognized by civilized nations involves international responsi-

87
bility" and entails the duty to "make reparations in an adequate
88
form". In the case of a conventional obligation, "there is no
89
necessity for this to be stated in the convention itself."
85. Chorzow Factory (Indemnity) Case [1928] P.C.I.J. Ser.A. No.
17, 29.
86. Corfu Channel Case [1949] I.C.J. Rep. 4,23.
87. Schwarzenberger, "Uses and Abuses of the 'Abuse of Rights' in

International Law" 42, 1957 Trans. Grotius. See also Ad-
visory Opinion on Interpretation of Peace Treaties [1950]
I.C.J. Rep. 221,228.
88. Chorzow Factory (Jurisdicti6n) Case [1927] P.C.I.J. Ser. A.

No. 8, 21.
89. Chorzow Factory (Jurisdiction) Case supra n.88.

-'23 -
Reparation should "wipe out all the consequences of the illegal
act and re-establish the situation which would ... have existed
90
if that act had not been committed."
1. New Helios is entitled to the restoration of the status

quo ante.
a) The International Court may grant such relief.
An international court or tribunal has authority to require

the specific performance of its decisions. The 'nature or
extent of the reparation to be made for the breach of an in-
ternationalcbligation, '...clearly includes the specific per-
formance of the obligation. Specific performance would indeed
appear to be the normal method of giving effect to a declara-
tory judgment. 9 1
The "very minimum of reparation is dissociation by the offending

92
State from its illegal act," and the Court should order Karma to
disist from its illegal 'actions. That international courts and

tribunals may "grant the equivalent of a prohibitory or mandatory
93 94
injunction" is clear in the Free Zones Case and shown also by
95
the Trail Smelter Arbitration.
90. Chorzow Factory (Indemnity) Case [1928].P.C.I.J. Ser. A. No.

17, 47. See also M. Sorenson, supra n.34, 565 and I. Vasarhelye,
Restitution in International Law 10 (1964).
91. C. Jenks, sra n.69, 419. See also 2 L. Cavare, supra n. 60,
482: "La competence pour statuer sur la reparation ... impli-
que la competence pour statuer sur les formes et modalites de
la reparation" and Sauser-Hall, supra n.62, 524: "La plupart
des auteurs [reservent] le droit d'un Etat lese par l'utilisa-
tion abusive d'un cours d'eau pat un Etat riverain, au retab-
lissement du statu quo ante ou a des dommages-interets."
92. Schwarzenberger, sup n.87, 42. See also the Helsinki Rules,
I.L.A., supra n.45, 501 (Art. XI): "the state shall be required
to cease the wrongful conduct and compensate the injured co-
basin State for the injury that has been caused to it."
93. C. Jenks, supra n.69, 120. See also Griffin, "The Use of Waters
of International Drainage Basins under Customary International
Law", 53 A.J.I.L. 80 (1959) and M. Sorenson, supra n.34, 565.
94. [1932] P.C.I.J. ser. A/B.No.46, 172, where France was ordered
to remove a customs cordon that was in breach of a treaty.
95. (Canada v. United States) 35 A.J.I.L. 684 (1941).

- 24 -
b) Such relief is warranted in the circumstancesi
By polluting boundary waters, Karma has placed herself in fla-
grant breach of binding conventional and customary international
law and only an immediate reduction in the discharge of sewage and
industrial wastes coupled with an undertaking to construct pollu-
tion control facilities can wipe out the consequences of this
breach and prevent further injury to New Helios:
The common remedy of response in monetary compensation following

a breach of an international obligation is rarely adequate in
the case of a substantial change in the regime of a river system
on which nations depend for their livelihood. A man dying of
thirst cannot be revived with monetary9 6 compensation for his
water, even when tendered in advance.
Since the nuclear power station is, by its discharge of heated

97
waters, injuring property in New Helios, and will, when fully
operational, do so even more, and since Karma in blithe disregard
of its duty to notify and consult built it on its present location
instead of a few miles downstream where it would have had no
effect on New Helios, Karma should be ordered to suspend its
operations until-such time as a cooling system can be installed.
2. New Helios is entitled to monetary damages with interest.
"It is.a principle of international law that the reparation of
a wrong may consist of an indemnity corresponding to the damage

98
which the nationals of the injured State have suffered ... " In
addition to restitution, New Ielios claims an indemnity for ex-
96. Laylin and Bianchi, supra n. 81, 31 and see M. Sorenson,

supra n. 34, 566.
97. eg. The Lower Peace Brewery [F-4]. The recreational uses of
the Lake are also affected by the discharge of heated waters.
98. Chorzow Factory (Indemnity) Case [1928] P.C.I.J. Ser. A.No.

17, 27.
- 25 -
99
penses incurred due to Karma's illegal actions, with interest
100
at the rate of 9% from the date of the present judgment.
Should the Court find that New lelios had not fully established
the extent of the damage caused by Karma or the amount of the

101
indemnity claimed by the New Helios, it "may award an un-
102
liquidated sum", to be determined in a future judgment after
103
the receipt of a report by experts appointed by the Court.
CONCLUSION
It is respectfully requested that this honourable Court:
1. Grant New Helios a declaration that Karma's pollution of the
Peace River System is illegal and Order Karma to desist
forthwith from such illegal actions.
2. Grant New Helios an indemnity corresponding to the sums spent
and tho losses incurred by its nationals.
All of which is respectfully submitted,
Counsel for New Helios
99. D. Anzilotti, Cours de droit international 527 (1929): "Quand

la restitution ... ne constitue pas une compensation suffis-
ante, [elle] est remplacee ou completee par des dommages-
interets".
100. See H. Lauterpacht, supra n.2, 145 and the Wimbledon Case
[1923] P.C.I.J. ser. A No. 1, 33.
101. But see Corfu Channel Case [1949] I.C.J. Rep.4,8 as to the
evidentiary presumption in favour of a state bringing a claim.
102. C. Jenks, supra n.69, 684.
103. This was done in the Chorzow Factory (Indemnity)Case [1928]

P.C.I.J. ser. A. No. 17, 64.
ANNEX A -26;,
WILbunwass
p~rr. 1 0,J
NEW HELIOS
-% /. CAPITAL
"N -ov/
4
,k/.e
-OL"IER
BfkwmRy
NUCLEAt
pL-AFJ1
KARMA
I.
CAV~YAL. Ov
KAGvft .OI
-27-
ANNEX B
1923 Treaty of'Amity, Friendship, and Economic Cooporation
ARTICLE I
In order to carry out the purposes and objeclives of this
Agreement, the States of Karma and New Helios agree to
cooperate and consult with one another as appropriate
on matters of mutual interest.
ARTICLE II
Paragraph 1. Both States agree that in keeping with the
general aim of amity, friendship and economic cooperation,
neither State shall pollute boundary waters or other
waters running between them so as to injure the health
or property in the other State.
Paragraph 2. In furtherance of this responsibility the
parties undertake to enter into specific arrangements
as appropriate.
ARTICLE III
The Lower Peace River shall be open to the ships of both
States, and navigation shall not be impeded or unreasonable
conditions placed thereon, unless a situation arises in
which either State, upon notification to the other, be-
lieves that health and safety require the imposition of
such conditions.
ARTICLE IV
Paragraph 1. Disputes between the two States shall be
settled amicably and equitably with full regard to the
purposes and principles set forth in this Agreement.
Paragraph 2. Upon the request of either State, both
States agree that questions arising under this Agree-
ment which have not been settled within a reasonable time
may be brought to arbitration, each State choosing one
arbitrator and the remaining arbitrator to be agreed
between them or, if agreement is not reached within a
period of six months from the date of the selection of
the two other arbitrators, such third arbitrator shall be
selected by the President of the Permanent Court of
International Justice.
Paragraph 3. At the time a request for arbitration is
made, or at any time before the arbitration commences,
either State may request that the dispute be submitted to
the Permanent Court of International Justice or to a special
chamber of that Court. The agreement of the other State
shall first be obtained before submission is made to the
Court.
COURT COMPETITION
1975


(Respondent)
International Award University of Toronto #27

IN THE INTERNATIONAL COURT OF JUSTICE
February 1975
Between:
NEW HELIOS
Applicant
and
KARMA
Respondent
MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS
'Page
INDEX OF AUTHORITIES ........................ (vi)
JURISDICTION ...................... (xii)
STATEMENT OF FACTS .................................... (xiv)
QUESTIONS PRESENTED .................................. (xv)
SUMMARY OF ARGUMENT .................... ...... (xvi)

1
ARGUMENT AND AUTHORITIES ... ........ ..... .. .... ...
I. NEW HELIOS' CLAIM IS BARRED IN PART BY THE

PRINCIPLES OF EXTINCTIVE PRESCRIPTION AND
ACQUIESCENCE . ...... .. ....... . ... . ..... ... ... 1
A. The laches of New Helios should extinguish

that part of its claim that is based on the
alleged pollution of the mill. 1
1. It is a recognized principle of inter-

national law that the extinction of
claims may result from lapse of time.
2. The principle of extinctive prescription

applies to bar New Helios' claim insofar
as it relates to the paper mill..........
B. In the alternative, New Helios should be held

to have acquiesced in the activities of the
mill and therefore to be estopped from ob-
jecting thereto. .............................
l. Acquiescence is an accepted principle

of international law.
2. The prolonged silence of New Helios

operates as a tacit consent.
II. KARMA IS NOT RESPONSIBLE UNDER THE 1923 TREATY

FOR ANY HARM INFLICTED UPON THE ENVIRONMENT OF
NEW HELIOS.o ....................................
A. Article"II of the 1923 Treaty is rendered

'inoperative by virtue of'the doctrine of
the clausularebussicstntibus .......
(ii)
Table of Contents (continued)
1. The clausula is enshrined in conventional

international law . ...................... 3
2. The clausula is firmly entrenched in

customary international law* ............ 4
3. The clausula has received the sanction

of judicial decisions ................... 5
4. The clausula has been widely accepted

by publicists.. .................... 5
5. Partial termination may result from the

operation of the clausula . ........... 6
6. Article II of the Treaty should be

terminated by virtue of the clausula .... 7
(a) The fundamental change in the

circumstances of Karma should result
in the termination of Article II. .. 7
(b) The disproportion in the obligations

of Karma and New Helios should result
in the termination of Article II. .. 8
(c) The principle of good faith in treaty

relations requires the termination
of Article II ..................... 8
(d) Article II may be terminated where

performance jeopardizes the very
existence of the state or its vital
interests,. ....... o..................
(e) The changes in the circumstances

of Karma comply with the criteria
proposed by the Vienna Convention on
the Law of Treaties. ............... 9
B. A true construction of Article II absolves

Karma of liability for harm caused to the
environment of New Helios, .................. 10
1. Article II, read as a whole, does not

contemplate the infliction of liability
for harm caused by one party to another., 10
2. The canon of contemporaneous meaning

removes the activities of the nuclear
power station from the scope of Article II. 11
(iii)
(a) It is generally accepted that the

meaning of the words that prevailed
at the time of the conclusion of a
treaty is controlling . ............. 11
(b) The word "pollution" as understood

in 1923 does not apply to the
activities of the nuclear power
station. *...............0............ i
3. Alternatively the principles in dubio

mitius and contra proferentem preclude
the application of the word 'pollution'
in the Treaty to the activities of the
nuclear power station.
. ................. 12
4. A literal interpretation of Article II

is contrary to the spirit of the Treaty.. 12
III. KARMA IS NOT RESPONSIBLE FOR ANY HARM WHICH HAS

BEEN OR MAY BE INFLICTED UPON THE ENVIRONMENT
OF NEW HELIOS UNDER GENERAL PRINCIPLES OF INTER-
NATIONAL LAW. .o................... ......... 13
A. Karma is not responsible for environmental

injury under customary international law ... 13
1. Karma's use of water resources is

consistent with principles adopted
by the United Nations, .................. 13
2. The actions of Karma are not in breach

of any rule of customary international
law found in river treaties. .......... 14
(a) The relevant treaties do not

reflect any principles of customary
international law . .............. 14
(b) If the treaties determine generally

accepted principles, New Helios has
an onus of proving substantial
environmental injury. .............. 14
(c) The treaties indicate that only
reasonable measures are to be taken
in abating pollution . ............. 15
3. Karma has not violated any principles for-

mulated in unofficial statements related
to the use of international drainage
basins.. ..... ..... ....... .... .... is
(iv)
B. Karmais'not resp6nsible for'environmental

injury ufider prificiples of law recognized
by civilized nations, ....... ............ 16
1. The concept "sic utere tuo ut alienum non

laedas" is inadequate to assess environ-
mental responsibility . .................. 16
2. The abuse of rights doctrine has no appli-

cation. **.**........0 ....... .... 16
(a) It is not a general principle of in-

ternational law . ................... 16
(b) Application of the doctrine requires

intent to injure . ................... 17
3. The riparian rights doctrine sanctions

Karma's use of the drainage basin . ...... 17
C. Karma cannot be found responsible for environ-

mental injury on the basis of principles re-
flected in judicial decisions . ............. 17
1. Karma's use of the drainage basin is not in

conflict with the decisions of international
tribunals.. ................... 17
2. The decisions of municipal courts do not

impugn Karma's actions . .............. 18
D. Strict liability for pollution damage is not an

accepted principle of international law . .... 18
E. Karma's exercise of territorial sovereignty is

consistent with general principles of interna-
tional law. ....................*........... 19
1. There can be no responsibility for pollution

in the absence of universally applicable
principles. ............... ..... ...... 0.. 19
2. Karma's exercise of territorial sovereignty

cannot be impugned absent any legal obliga-
tion to the contrary. .................. 19
F. The equitable utilizati6n'ptificiple enables

Karma to cofntinue its use 6f the diainage
basin. . 0000 00... .......... 0.........0........ 19
1. Equitable utilization is an accepted prin-

ciple of international law. ........ 19
Cv)
2. The principle should be applied to enable

Karma to continue its use of the drainage
basin. ............
. .... 20
G. Karma was not requiredtocofisult New Helios

under general prifidiples of'international law. 22
1. The duty to give notice in international

law is not mandatory. ................. 22
2. Karma was not required to obtain the consent

of New Helios for its utilizations. .... 22
IV. NEITHER DAMAGES NOR INJUNCTIVE RELIEF SHOULD BE

AVAILABLE TO NEW HELIOS. ....................... 22
A. If Karma is found responsible for harm caused

to the environment Of New Helios, no injunction
should be granted. ........ . .............. 22
1. The Court does not have the jurisdiction

to grant an injunction. ................ 22
2. Should the Court find that it is authorized

to grant an injunction, such relief would
be inequitable in the circumstances. ... 23
3. Monetary damages constitute sufficient

reparation.. ......................... 23
B. Monetary compensation is not appropriate in
the circumstances . ....................... .. 23
C. The appropriate relief would be the recommen-

dation of a permanent international joint
commission ................................. 24
CONCLUSION ....
-.......................... 25
ANNEX A (Map) .......................................... 26
ANNEX B (Treaty) ...................... . ..... 27

(vi)
Page
TREATIES AND OTHER INTERNATIONAL AGREEMENTS
Boundary Fisheries Treaty Between France and Switzerland

(France-Switzerland Convention), 1904 U.N. Doc.
ST/LEG/SER. B/12 no. 196, 701. .................... 11
"Commentary to the I.L.C. Draft Articles", 2 Yearbook of
the International Law Commission, 256 (1966) . ...... 6
Convention on Treaties, Havana, 1928: 22 Am. J. Int'l.

L., Supp. 139 (1928) . ............................. 3
Convention sur la protection du lac de Constance contre

la pollution, October 27, 1960 U.N. Doc. ST/LEG/SER.
B/12 438, 439 .. . ........ o.....
. ..
.....
- . .. . . .. is
Declaration of the United Nations Conference on the

Human Environment, Stockholm, June 16, 1972 U.N.
Doc. A/CONF. 48/CRP. 26 ........................... 9, 13
Frontier Treaty Between the Netherlands and the Federal

Republic of Germany, April 8, 1960 U.N. Doc. ST/LEG/
SER. B/12 757, 758. .............................. 14, 15
Indus Waters Treaty Between India and Pakistan, Sept. 9,
1960 U.N. Doc. ST/LEG/SER. B/12 300, 305, 312 ... 14, 15
CASES
Advisory Opinion on Namibia [1971] 1 C.J. Rep. 16. 47 ... 5
Advisory Opinion on the I.L.O. [1922] P.C.I.J. ser. B
Nos. 2, 3, 23 .................................... 10
The Ambatielos Case (Greece v. U.K.) 23 I.L.R. 306

314 (1956) ....................................... 1
Anglo-Norwegian Fisheries Case [1951] I.C.J. Rep. 116,

133 .o.........._ .......... ....... 8
Brazilian Federal Loans Case [1929] P.C.I.J. ser. A

Nos. 20, 21, 114 ......... **........ .......... 12
Chorzow Factory (Indemnity) Case (Jurisdiction), [1927]
P.C.I.J. ser. A No. 9 s.. .................. 24
Fisheries Jurisdiction Case [1973] I.C.J. Rep. 3, 18 ... 4,5,8
Free Zones of Upper Savoy and District of Gex Case
[1932] P.C.I.J. ser. A/B.No. 46, 156, 157, 158 ..... 5
(vii)
Index of Authorities (continued)
Gentini Case (Italy v. Venezuela) 10 R.I.A.A. 551 1

(1903) 555 . ......................................
Hooper v. United States 22 Ct. Cl. 408 (1887) ......... 6
Kansas v. Colorado 206 U.S. 46 (1907) ................ 18,19
Lake Lanoux Arbitration (France v. Spain) 24 I.L.R. 88

(1957) o.... ........ ..... ...... ..... ........ 18,19
Lausanne Peace Treaty Case [1925] P.C.I.J. ser. B

No. 12, 25 *0....................... . . ...... 12
Lucerne v. Argau 8 Entscheidungendes Schweizerischen

Bundesgerichten 57 (Switz. S.C. 1882) ............. S
Missouri v. Illinois 200 U.S. 496 (1902) ............ 18
Nebraska v. Wyoming 325 U.S. 589 (1945) ............. 19
New York v. New Jersey 256 U.S. 296 (1920) .......... 18
North Sea Continental Shelf Cases [1969] I.C.J.

Rep. 3,127 .......... . .. ........ ............ 3
River Oder Case [1929] P.C.I.J. ser. A No. 23 ....... 19
Russian Indemnity Case Hague Court Rep. (Scott) 297
(1910) . .... ... ........ ... .. ..... ............ 5
Stransky v. Zivnostenska Bank [1955] I.L.R. 424, 27 ... 6
Temple of Preah Vihear (Merits) Case [1962] I.C.J.

Rep. 3,23 .. 00...................... 3
Trail Smelter Arbitration (United States v. Canada)

3 U.N.R.I.A.A. 1905 (1941) ....................... 17
Tucker v. Alexandroff 183 U.S. 347 (1902) ............ 8
Wyoming v. Colorado 259 U.S. 419 (1922) .............. 18,19
TREATISES, DIGESTS, RESTATEMENTS; MONOGRAPHS AND REPORTS
Anzilotti, D.'Cours de droit international, 113 (1929) . 12
Barros, J., and Johnston, D. TheInternatiOnal'Law of

Pollution, 70, 74, 75 (1974) ..................... 14,16
Berber, F.,'Rivetsin International Law, 25, 149,
209 (1959) .17,19,20
......................................
(viii)
Index of Authorities (continued)
Bin Cheng, General Prindiples6fLawas Applied by Inter-

national Courts and Tribunals 114, 36 (1953) ........ 1,8,12
Brownlie, I., Principles of Public'International'Law 432,

492, 599 (2nd. ed., 1973) ............................ 1,5,16
3 Calvo, C., Le droit international th6orique et pratique,

395 (4th ed., 1888) .................. 12
2 Cavare, L., Le droit international public positif, 109,
372, 816 (2nd ed., 1962) .................................. 1,2,9
Century Dictionary and Encyclopaedia (1911) .............. 11
Corpus Juris (1930) .......... ............................ 11
David Davies Memorial Institute of International Studies,

International Disputes, The Legal Aspects, 137 (1972) .. 24
Degan, L'interpretation des accords en droit international,
S9 (1963) ............................................ 11
Dobbyn, J., Injunctions in a Nutshell, 81 (1974) ......... 23
The Law of International Drainage Basins, 15-88 et passim,

97 (Garretson, A., Hayton, R. and Olmstead, C., ed.
1967) ................................................ 16,20
Guggenheim, P., Traits de droit international public, 232

(2nd ed., 1967) ...................................... 4
Harazti, G., Some Fundamental Problems in the Law of Treaties,

89, 376, 378, 384 .......... .. 4,8,9,11
*.......*...........
Hoijer, 0., Les traites internationaux, 471, 511 (1928) ... 2,6
Huang, T., The Doctrine of Rebus Sic Stantibus in Interna-

tional Law, 17 (1935) ........... ................. 6
International Law Association, Report of the 52nd Conference,
Helsinki, 1966 496 (1967) ........................... 15,20
International Law Association, Report of the 55th Conference,

New York, 1972 499 (1973) ........................... 14
Jenks, C., The Prospects of International Adjudication,

274 (1964) .0.. 0. . ........................... 7
Lauterpacht, H., Private'Law Sources'and Analogies of Inter-

national'Law, 46, 140 (1927) ......................... 6,18
(ix)
Index of Authorities (continued) Page
McClintock, H., Equity, 71 (2nd ed., 1948) .................. I
McNair, A., The Law of Treaties, 169, 412, 465, 467, 484
(2nd rev. ed., 1961) ............... ...... 6,8,11,12
O'Connell, D., International Law, 616, 1016 (2nd ed., 1970).. 1,20
Oppenhelm, I., International Law, 748, 844 (7th ed.

Lauterpacht, 1948) ...... .60...... . .. . ............. ...... 4,9
Ralston, J., Venezuelan Arbitrations of 1903, 689 (1904) ..... 12
Rest.(2nd) Foreign Relations Law of the United States,

153 (1965) .......... o.........................o.......... 6
Rosenne, S., The Law of Treaties, 324, 325 (1970) ........... 3,10
Schwarzenberger, G., A Manual of International Law, 170

(5th ed., 1967) ................................... 8
Sevette, P., "Legal Aspects of Hydro Electric Development

on Rivers and Lakes of Common Interest", U.N. Doc.
E/ECE/I136 (1952) 98 Rev. 1, 212 ........................ 15
Spinoza, B., Tractatus Politicus III, 14 (1677) ............. 6
Starke, J., An Introduction to International Law, 373

(6th ed., 1967) .......... *........ .......... 6
Vattel, E., Le droit des gens, 164, 298 (1758) ............. 9,16
3 Whiteman, M., Digest of International Law, 335 (1964) ..... 22
Wisdom, A., The Law of Pollution, 70 (1966) ................. 23
JOURNALS
de Arechaga, "International Legal Rules Governing Use

of Waters from International Watercourses", 2
Inter Am. L. Rev. 329, 337 (1960) ...................... 22
Austin, "Canadian - United States Practice and Theory

Respecting the International Law of International
Rivers: A Study of the History and Influence of
the Harmon'Doctrine", 37 Can. Bar Rev. 393 (1959) ....... 19
Baker, "The Obligatory Jurisdiction of the P.C.I.J.",

6 B.Y.B.I.L. 100 (1925) ..................... 4
4........
Bentz, "Le silence comme manifestation de volonte

en D.I.P.", 67 R.G.D.I.P. 45 (1963) .................... 3
Bourne, "International Law and Pollution of International

Rivers and Lakes", 6 U.B.C.L. Rev. 23, 117, 118,
127, 132, 136 (1971) ..................... 10,14,16,20,21,24
__ ,."Procedure in the Development of International

Drainage Basins", 22 U. Toronto L.J. 172, 173,
189 (1972) ............................................ 20,21
___ , "The Right to Utilize the Waters of

International Rivers", 3 Can. Yearbook Int'L
L. 187, 195, 244, 258 (1972) .......................... 22,24
Davis, "Themes of Water Pollution Litigation", 3

Environment L. Rev. 237, 241 (1972) ................... 17
Dickstein, "International Law and the Environment:

Evolving Concepts", 1972 Yearbook of World
Affairs 245, 248 ..... . . ......................... 21
Eagleton, "Use of the Waters of International

Rivers", 33 Can. Bar Rev. 1018, 1022, 1023,
1026 (1955) ......................................... 18,20,24
Gutteridge, "Abuse of Rights", 5 Camb. L. J.

22, 42 (1932) .......... ............................ 17
Jenks, "Liability for Ultra-hazardous Activities

in International Law", 117 Hague Recueil
188, 189 (1966) ............. o.. ................... .. 2
King, "Prescription of Claims in International

Law", 15 B.Y.B.I.L. 82 (1934) ........................ 1
Kunz, "Sanctity of Treaties", 39 Am. J. Int'l L.
194, 195 (1945) ................ ................... 6
Lester, "River Pollution in International Law",
47 Am. J. Int'l L. 828, 848 (1963) .................... 23,24
MacGibbon, "The Scope of Acquiescence in

International Law", 31 B.Y.B.I.L. 143 (1953) ........ 2
McNair, "La terminaison et la dissolution des

traites", 22 Hague Recueil 467 (1928) ................ 8
Pinto, "La prescription en droit international",

87 Hague Recueil 438, 439 (1955) ...................... 1,2
(xi)
Poch de Caviedes, "De la clause rebus sic

stantibus " la clause de r'vision dans
les conventions internationales", 18
Hague Recueil 149, 166, 168 (1966) ................... 8,9
Rubin, "Pollution by Analogy: The Trail Smelter

Arbitration", 50 Ore. L. Rev. 259, 274 (1971) ........ 13,17
Schwarzenberger, "The Fundamental Principles

of International Law", 87 Hague Recueil
256 (1955) ........................................... 3
, "Uses and Abuses of the

'Abuse of Rights' in International Law",
42 Transactions of the Grotius Society
1479 150 (1950) ...................................... 16
van Bogaert, "Le sens de la clause rebus sic

stantibus dans le droit des gens actuel",
70 R.G.D.I.P. 50 (1966) .............................. 5
Williams, "The Permanence of Treaties", 22

Am. J. Int'l L. 89 (1928) ............................ 6
(xii)
JURISDICTION
The parties submit the present dispute, by special agreement
under Article IV of the 1923 Treaty of Amity, Friendship and Eco-
nomic Cooperation, to a chamber of the International Court of
Justice.
The said Article IV makes provision for the submission of dis-
putes arising under the Treaty "to the Permanent Court of Inter-
national Justice or to a special chamber of that Court."
Article 35 of the Statute of the International Court of Jus-
tice provides that: "1. The Court shall be open to the states
parties to the present Statute." Both Karma and New Helios, as
members of the United Nations, are "...ipso facto parties to the
Statute of the International Court of Justice", by virtue of
Article 93 of the Charter of the United Nations.
Article 36 of the Statute of the International Court then pro-
vides as follows:
1. The jurisdiction of the Court comprises all cases which

the parties refer to it and all matters specially pro-
vided for in the Charter of the United Nations or in
treaties and conventions in force.
And, continuing at Article 37,

Whenever a treaty or convention in force pr6vides for
reference of a matter to a tribunal to have been instit-
uted by the League of Nations, or to the Permanent Court
of International Justice, the matter shall, as between
the parties to the present Statute, be referred to the
International Court of Justice.
Finally, Article 26 of the Statute allows the Court to form
chambers "composed of three or more judges", which shall deter-
mine cases if the parties so request.

(xiii)
It must therefore follow that the Court as presently composed
has jurisdiction to resolve the present dispute submitted to it.
In addition, by virtue of the enabling provisions of the Statute
of the International Court of Justice (Articles 36 and 38), the
Court may settle the full range of questions presented.

(xiv)
STATEMENT OF FACTS
The parties have agreed to the Statement of Facts which
has been filed before the Court; the parties have also waived
the defenses of sovereign immunity and the local remedies
rule [F-5"1.*
* Page references to the.Statement-of Facts are cited thus;

e.g. [F-1] for page one of the agreed Statement.
(xv)
QUESTIONS PRESENTED
Whether Karma is responsible for the harm which has
been or may be inflicted upon the environment of New Helios
under the Treaty of 1923.
Whether Karma is responsible for the harm which has
been or may be inflicted upon the environment of New Helios
under general principles of international law.
III
The nature of the remedy, if any, to which New Helios
may be entitled.
(xvi)
SUMMARY OF ARGUMENT
Karma is not responsible for any environmental harm which
has been or may be inflicted upon New Helios.
The doctrines of rebus sic stantibus, extinctive prescription,
acquiescence, and the canons of treaty interpretation apply to bar
New Helios' claims, and to absolve Karma of liability under the
Treaty of 1923.
Karma is entitled to continue its utilization of the drain-
age basin for purposes of economic development under general
principles of international law.
Should Karma be found responsible for environmental harm,
neither reparations nor injunctive relief are appropriate.
Instead, the Court should recommend the establishment of a
joint commission to supervise the drainage basin.

- 1-
I. NEW HELIOS' CLAIM IS BARRED IN PART BY THE PRINCIPLES OF EX-

TINCTIVE PRESCRIPTION AND ACQUIESCENCE.
A. The lacres of New Helios should extinguish that part of

its claim that is based on the alleged pollution of the mill.
1. It is a recognized principle of international law that

the extinction of claims may result from lapse of time.
"International law contains a rule for the extinction or bar-
ring of claims upon lapse of time." 1 The principle of extinctive
prescription is a general principle of law recognized by civi-
lized nations, 2 and is attested by publicists 3 and international

4
tribunals. The principle finds its foundation in the highest
'
equity - the avoidance of possible injustice to the defendant."
2. The principle of extinctive prescription applies to bar

New Helios' claim insofar as it relates to the paper mill.
The factors that substantiate a claim of prescription are 1)
unreasonable delay, 2) actual or constructive knowledge of the
events constituting the alleged wrong and 3) prejudice. 6 While

7
"no rule of international law lays down a time limit" and it is
1. 2 D,P. O'Connell International Law 1066 (2d ed., 1970)

2. Pinto, 'La prescription en droit international' 87 Hague
Recueil [hereinafter cited as H.R.] 438 (1955)
3. eg. Bin Cheng General Principles of Law as Applied by Inter-
national Courts and Tribunals 386 (1953): "Prescription
appears as the rational basis of certain rules of law admitted
in all legal systems and...is dictated by the sense of justice
and equity common to civilized mankind," and I. Brownlie
Principles of Public International Law 492 (2d ed. 1973)
4. eg. Gentini Case (Italy v. Venez.) 10 RIAA 551, 555 (1903),
Ambatielos Case (Greece v. U.K.) 23 I.L.R. 306, 314 (1956).
S. Gentini Case supra no.4. See also 2-L. Cavare'Le droit inter-
national public positif 372 (2d ed. 1962).
6. H. McClintock Equity 71 (2d ed. 1948), King, 'Prescription of
Claims in International Law' 15 B.Y.B.I.L. 82 (1934)
7. I. Brownlie supra n.3 loc. cit.
-2-
generally agreed that the amount of time that suffices cannot be
arbitrarily fixed,8 periods from six to forty years have been
accepted. 9 It has been suggested that in modern times, two years
from the date of actual or presumed awareness should suffice in

10
the case of "cumulative" pollution. In the present case, ten
years elapsed between the official opening of the mill complex
in 1964 and New Hellos' first protest in 1974, which delay con-
stitutes unconscionable laches. The proximity of the two States
and the international character of the mill project fix New
Helios with constructive, if not actual, knowledge. Finally,
Karma has been gravely prejudiced by the laches of New Helios in-
asmuch as Karma is thereby precluded from adducing evidence as
to the extent of pre-existing pollution in the boundary waters.
B. In the alternative, New Helios should be held to have ac-

quiesced in the activities of the mill and therefore to be
estopped from objecting thereto.
1. Acquiescence is an accepted principle of international
law
Acquiescence "takes the form of silence or absence of protest
in circumstances which generally call for a positive reaction sig-
nifying an objection" 11 and is "numbered among the general prin-
ciples of law accepted by international law as forming part of
8. Pinto, supra n.2 439

9. 0. Hoijer, Les traites internationaux 471 (1928)
10. Jenks, 'Liability for Ultra-hazardous Activities in Interna-
tional Law'117 H.R. 188-89 (1966-I)
11. MacGibbon, 'The Scope of Acquiescence in International Law'
31 B.Y.B.I.L. 143 (1953) See also 2 L. Cavare supra n.4 816:
"Silence is eqlivalent to a tacit manifestation of the will,
in short, o acquiescence" (transl.)
-3-
12
the law of nations". Jurists of every age have recognized the
13
juridical effects of silence.
2. The prolonged silence of New Helios operates as a tacit

Consent
New Helios' ten year silence should estop it from protesting
now. Good faith would require New Helios to have taken "active
steps of some kind in order to preserve its right of freedom of
action" 14 and its failure to take such steps should preclude it
from objecting at this late stage.
II. KARMA IS NOT RESPONSIBLE UNDER THE 1923 TREATY FOR ANY HARM
INFLICTED UPON THE ENVIRONMENT OF NEW HELLOS
A. Article II of the 1923 Treaty is rendered inoperative by

virtue of the doctrine of the clausula rebus sic stantibus
1. The clausula is enshrined in conventional international

law
The clausula was codified in 1928 by the Havana Convention on
Treaties and most recently by the Vienna Convention on the Law
of Treaties in 1969, which provides in Article 62, as follows:
1. A fundamental change of circumstances which has occured

with regard to those existing at the time of the conclu-
sion of a treaty, and which was not foreseen by the par-
ties, may not be invoked as a ground for terminating or
withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an
essential basis of the consent of the parties to be
bound by the treaty; and
(b) the effect of the change is radically to transform
the extent of obligations still to be performed un-
der the treaty.16
12. North Sea Continental Shelf Cases [1969] I.C.J. Rep. 3, 127
13. Bentz, 'Le silence comme manifestation de volonte en D.I.P2
67 R.G.D.I.P. 45 (1963)
14. Schwarzenberger, 'The Fundamental Principles of International
Law' 87 H.R. 256 (1955); See also the Temple of Preah Vihear
(Merits) Case [1962] I.C.J. Rep. 3, 23
15. Art.10, Convention on Treaties, Havana, 1928: 22 A.J.I.L.,
Supp. 139 (1928)
16; In S. Rosenne, The Law of Treaties 324-25 (1970)
-4-
2. The clausula is firmly entrenched in customary interna-

tional law
"[T]he principle included in the rebus sic stantibus clause
belongs to the objective rules of international law, enforceable
irrespective of the express or tacit intention of the parties at
treaty-making and in the given instance bringing about the termi-

partly" 1 7
nation of the treaty, wholly or
The clausula has recently received the stamp of approval of
the World Court: "This principle, and the conditions and excep-
tions to which it is subject, have been embodied in Art. 62 of
the Vienna Convention on the Law of Treaties, which may in many
respects be considered as a codification of existing customary
law..."18 The clausula has been frequently invoked "dans la
pratique diplomatique:"'1 9 "The doctrine of rebus sic stantibus
...can be, and has been justifiably applied in the practical

20
legal relations of states." In many respects, the clausula is
"as necessary for International Law and international intercourse

21
as the very rule pacta sunt servanda". Far from being mutually
exclusive, "nous pouvons trouver dans la regle pacta sunt servanda
17. G. Harazti Some Fundamental Problems in the Law of Treaties

376 (1973).
18. Fisheries Jurisdiction Case [1973] I.C.J. Rep. 3, 18.
19. 1 P.Guggenheim Traite'de droit international public 232
(2d ed. 1967)
20. Baker, 'The Obligatory Jurisdiction of the P.C.I.J.' 6 B.Y.B.
I.L. 100 (1925). The clausula has been relied on by many
countries eg. the U.S. with respect to the Loadline Conven-
tion and Clayton-Bulwer Treaty; China, to bolster claims for
the revision.of unequal treaties; Russia, on denouncing Art.
59 of the Treaty of Berlin and France, on her withdrawal from
N.A.T.O.
21. 1 L. Oppenheim International Law 844 (7th ed. Lauterpacht
1948)
-5-
et la regle rebus sic stantibus les doux eements qui doivent

assurer 1'existence d'un droit efficient et en mame temps equi-
22
table."
3. The clausula has received the sanction of judicial de-
cisions.
The World Court has considered the clausula on several occa-

sions. In 1932, the Court assumed its existence "while reserv-
ing its position on its extent and the precise mode of its appli-
cation."2 3 In 197124 and 1973 again, the Court was more cate-
gorical:
"International law admits that a fundamental change in the
circumstances which determine the parties to accept the
treaty, if it has resulted in a radical transformation of the
extent of the obligations imposed by it may, under certain
conditions, afford the party affected a grounhsfor invoking
the termination or suspension of the treaty."
26
The clausula has been accepted by other international tribunals
and by courts in federal jurisdictions dealing with inter-state
problems. 27
4. The clausula has been widely accepted by publicists.
"Almost all modern jurists, however reluctantly, admit the
existence in international law of the principle...commonly
spoken of as the doctrine of rebus sic stantibus:" 24'la plus grande
22. van Bogaert, 'Le sens de la clause rebus sic stantibus dans
le droit des gens actuel' 1966 R.G.D.I.P. 50 Transl. "in the
twin rules: pacta sunt servanda and rebus sic stantibus, we
find the two ingredients necessary to ensure the existence
of an efficient and equitable law"
23. I. Brownlie supra n.3 599 (Free Zones Case [1932] P.C.I.J.
ser. A/B No.46, 156-58)
24. Advisory Opinion on Namibia [1971] I.C.J. Rep. 16, 47
25. Fisheries Jurisdiction Case [1973] I.C.J. Rep. 3, 18
26. eg. Russian Indemnity Case Hague Court Rep. (Scott) 297 (1910)
27. eg. Lucerne v. Argau 8 B.G.E. 57 (Switz.S.C. 1882): "There is
no doubt that treaties may be denounced unilaterally by a
party under obligation, if their continuance is incompatible
-6-
partie des auteurs dedroit ont poncho en faveur do la clause...
avec plus ou moins de reserves et en interpretant celle-ci d'une
fagon plus ou moins restrictive." 29 It is the overwhelming con-

modern 3 0
sensus of the most qualified publicists, both ancient and
31
that "treaties may be discharged as a result of the...doctrine."
S. Partial termination may result from the operation of the

clausula.
"[W]here treaties consist of different parts, dealing with

completely different subjects, it is now recognized by the
majority of writers, by the treaties themselves, by interna-
tional tribunals and by the practice of states, that the pro-
blem of the validity or termination of treaty-created norms
can arise not only with regard to the treaty as a whole, but 3 2
also with regard to certain parts or articles of the treaty".
with its vital interests...or if there has taken place such

a change of the circumstances as...constituted, at the time
of its creation, an implied condition of its continued exis-
tence." See also Hooper v. United States 22 Ct.Cl. 408 (1887)
and Stransky v. Zivnostenska Bank [1955] I.L.R. 424, 27.
28. 'Commentary to the I.L.C. Draft Articles' 1966 2 Ybk. I.L.C.
256.
29. Poch de Caviedes, tDe la clause rebus sic stantibus A la
clause de revision dans les conventions internationales' (18
H.R. 149 (1966) Transl.: the vast majority of legal writers
have accepted the clausula, with more or less reservations
and interpreting it with varying degrees of strictness. See
also H. Lauterpacht, Private Law Sources and Analogies of In-
ternational Law 46 (1927).
30. eg. B. Spinoza, Tractatus Politicus III, 14 (1677). T. Huang,
The Doctrine of Rebus Sic Stantibus in International Law 17
(1935), Bluntschli Le droit public general in 0. Hoijer, supra
n.9, 511: "lorsqu'un ordre de faits determine forme la base
et la condition d'existence d'un traite, et que cette base
vient d'-tre renversele, la validit4 du traite s'ecroule en
meme temps," Williams, 'The Permanence of Treaties' 22 A.J.I.L.
89 (1928): "There has been a general acquiescence in the doc-
trine that an essential change of conditions involves the
obsolescence that is to say, the supervening invalidity of
treaty obligations". G. Schwarzenberger A Manual of Interna-
tional Law 170 (5th ed. 1967) and Rest.(2nd) Foreign Relations
Law of the United States Art. 153 (1965).
31. J. Starke An Introduction to International Law 373 (6th ed.
1967)
32. Kunz, 'Sanctity of Treaties' 39 A.J.I.L. 194-95 (1945). Cf. A.
McNair The Law of Treaties 484 (2d rev. ed. 1961): [C]ircum-
stances frequently arise which make it necessary to regard
-7-
In view of the separate and discrete nature of Article II of the
1923 Treaty, it may be terminated without affecting the validity
of the rest of the treaty.
6. Article II of the Treaty should be terminated by virtue

of the clausula.
a. The fundamental change in the circumstances of Karma

should result in the termination of Article II.
Karma contends that the state of affairs that obtained at the
time the treaty was concluded more than half a century ago, has
undergone a radical change inasmuch as at that time, Karma was
a poor, underdeveloped and sparsely populated nation whose eco-
nomy was almost wholly agricultural, (F-l) whereas at the present
time, Karma is a rapidly developing nation with an increasing
population which depends heavily for its economic survival on the
mill complex and related industries and which is in urgent need
of an adequate supply of electrical energy. (F-4) Karma's recent
reasonable and equitable use of the drainage basin is vital if
Karma is to alleviate the poverty that for too long has been the
lot of its citizens and to provide them with a standard of living
in conformity with U.N. recommendations. This radical change in
the economic conditions prevailing in Karma is a strong reason
for the termination of Art. II. The I.C.J. recognized the legi-
timacy of arguments based on economic conditions in the Anglo-
Norwegian Fisheries Case: "Finally, there is one consideration
not to be overlooked...that of certain economic interests peculiar
one or more of the provisions of a treaty as forming a self-

contained unit and requiring separate legal treatment" and
C. Jenks The Prospects of International Adjudication 274
(1964).
-8-
to a region," and held traditional fishing rights to be buttressed

33
by "the vital needs of the population."
b. The disproportion in the obligations of Karma and New

Helios should result in the termination of Article II
It is Karma's contention that the Court should adopt the cri-
tericn that "any change of circumstances provides a basis for in-
vocation of the doctrine if the change satisfies the following
requirement: the change of circumstances has to be of an extent
which decisively affects the burden devolving from the treaty on
the parties..."34 The burden devolving on Karma from the Treaty
as interpreted by New Helios is immensely greater than in 1923
as compliance with Art. II now, would have catastrophic effects
on Karma's economy. In fact the Treaty has become virtually one-
sided and the result of this disproportion should be the termi-
nation of Art. II.
c. The principle of good faith in treaty relations re-

quires the termination of Article II
"The performance of treaties is subject to an over-riding
obligation of mutual good faith."3 5 It would be a substantial
iniquity and a flagrant injustice3 6 for New Helios to require
Karma to adhere to treaty provisions and where there has been a
fundamental change in the circumstances of Karma:
33. [1951] I.C.J. Rep. 116, 133. With respect to the part econo-
mic factors can play in the termination of a treaty, see
G. Schwarzenberger supra n.30, 169 and generally McNair, 'La
terminaison et la dissolution des traits22 H.R. 467 (1928).
34. G. Harazti, supra n.17 384, see also Fisheries Jurisdiction
Case supra n.25.
35. A. McNair supra n.32 465. See also B. Cheng supra n.3 ch.3.
36. Poch de Caviedes supra n.29 166. See also Tucker v. Alexan-
droff 183 U.S. 347 (1902)
-9 -
"[L]a maxime pacta sunt servanda no peut s'imposer avec un

caractere universel et irrefutable, mais bicn plut~t condi-
tionnel et toujours subordonne au principe regulateur de la
bonne foi qui, a son tour, fera entrer en scene le principe
rebus s.s. quand le changement de circonstances impliquera
la violation de la bonne foi elle-m~me... ''37
d. Article II may be terminated where performance jeo-

pardizes the very existence of the state or its vital
interests.
If treaty obligations are "incompatible with the duties of a
Nation towards itself...it is necessarily implied that the treaty
does not apply in such a case."'3 8 As Oppenheim puts it,

"when the existence or the vital development of a state
stands in unavoidable conflict with its treaty obligations,
the latter must give way for self-preservation and develop-
ment in accordance with the growth and vital requirements of
a nation, are the primary duties of every state."'3 9
As Karma's vital development4 0 and economic future are clearly
impinged upon and placed in jeopardy by Art. II, Art. II should
be terminated.
e. The changes in the circumstances of Karma comply with

the criteria proposed by the Vienna Convention on the
Law of Treaties.
In the event the Court adopts the formulation of the clausula
in the Vienna Convention, it is Karma's contention that the
change of circumstances meets its standards inasmuch as a) the
3 . Poch de CaviedesSupra n.29, 168 Transl.: The maxim pacta sunt

servanda may not be applied universally or irrefutably but
under certain conditions and always subject to the ruling
principle of good faith which in its turn will call into play
the rebus principle when a change of circumstances results in
a breach of good faith.
38. E. Vattel Le droit des gens 164 (1758).
39. L. Oppenheim supra n.21 748 (8th ed. 1955). Cf. the words of
Bismarck in 1 L. Cavare supra n.4, 109. Rien ne prevaut con-
tre l'interft de l'Etat," and G. Harazti supra n.17, 378.
40. See, in this connection Principle 11 of the Stockholm Decla-
ration. U.N. Doc. A/Conf. 48/C.R.P. 26, which stressed the
special needs of developing nations.
- 10 -
change was not foreseen by the parties since the main factor in
Karma's recent development program - the Wilderness Region -
was until 1955 inaccessible; (F-2) b) the state of Karma's econo-
my in 1923 constituted "an essential basis of the consent of the
parties" 4 1 as evidenced by the very title of the Treaty which
refers to "Economic Cooperation" (Annex B) and c) as was argued
above (supra p.8), "the effect of the change is radically to
transform the extent of obligations still to be performed under

42
the treaty."
B. A true construction of Article II absolves Karma of liabi-

lity for hai caused to the environment of New Helios.
1. Article II, read as a whole, does not contemplate the

infliction of liability for harm caused by one party to
another.
The prohibition on pollution in para. 1 of Art. II must be
read in conjunction with para. 2 which displaces any presump-
tion that might otherwise arise in favour of liability in case
of non-compliance with para. 1. Para. 2 plainly contemplates
the establishment of a joint commission to supervise the treaty
waters, and to combat any possible pollution problem: "The exist-
ing customary international law on pollution of drainage basins
will...be displaced by treaties providing for the management and
control of international drainage basins by international joint

44
agencies"
41. In S. Rosenne supra n. 16 loc.cit.

42. In S. Rosenne ibid. loc.cit.
43. See Advisory Opinion on the I.L.O. [1922] P.C.I.J. ser. B.
Nos. 2,3. 23
44. Bourne,'International Law and Pollution of International
Rivers and Lakes' 6 U.B.C.L.Rev. 136 (1971)
- 11 -
2. The canon of contemporaneous meaning removes the activi-

ties of the nuclear power station from the scope of
Article II.
a. It is generally accepted that the meaning of the

words that prevailed at the time of the conclusion
of a treaty is controlling.
It is "a generally accepted principle that by the ordinary
meaning of the words, the meaning that prevailed at the time

45 This
when the treaty was concluded has to be understood."
time of Vattel46
principle has been accepted at least since the
and applies "where there is a doubt as to the sense in which the

47
parties to a treaty used words." "Les mots doivent Btre pris
dans le sens qu'dtait le leUr a l'poque de la redaction et de

-
. •,48
la conclusion du traite.
b. The word "pollution" as understood in 1923 does not

apply to the activities of the nuclear power station.
The discharge of heated waters by the nuclear power station
does not constitute -'pollution' since in 1923, the word 'pollu-
tion' as used in the Treaty and as understood contemporaneously
did not extend to the raising of the temperature in a watercourse.
Contemporary dictionaries 4 9 as well as legal dictionaries and
encyclopaedias and bilateral treaties, 5 1 coincide in restricting
45. G. Harazti, supra n.17, 89.

46. E. Vattel supra n.38 s.298.
47. A. McNair supra n.32, 467.
48. Border Dispute (U.K.-U.S.) int. Degan L'interpretation des
accords en droit international 59 (1963) Transl.: "Words should
be given the meaning they had at the time of the drawing up
and the conclusion of the treaty."
49. eg. Century Dictionary & Encyclopaedia (1911) which defines
'pollute' as follows: "to make foul or unclean, render impure,
defile, soil, taint".
50. eg. Corpus Juris (1930) verbo pollution: "contamination
caused by impurities".
51. eg. France-Switzerland Convention, 1904 U.N.Doc. ST/LEG/SER/
B/12 no. 196, 701
- 12 -
water pollution to the dirtying or befouling of rivers.
3. Alternatively the principles in dubio mitius 5 2 and con-

tra proferentem56 preclude the application of the word
'pollution' in the Treaty to the activities of the nuclear
power station.
'Pollution' is a "slippery word, especially when used in re-
lation to water resources. It denotes nothing precise about the
state of any given waters; it is thus capable of meaning differ-
ent things to different people." 5 4 In view of the ambiguity of
the word 'pollution', "that meaning should be preferred which is
less onerous to the obligated party, causing less interference
with its personal and territorial supremacy." 55 This principle
has been sanctioned by the World Court 5 6 as has the cognate 'con-
tra proferentem' principle. The word 'pollution' should be so
interpreted as to exclude from its scope the raising of the tem-
perature of the waters in issue.
4. A literal interpretation of Article II is contrary to

the spirit of the Treaty.
To interpret the provisions of Art. II in such a way as to
prohibit Karma from having an equitable share in the use of the
shared water resources is contrary to the "common and real inten-

57
tion of the parties at the time the treaty was concluded, is
52. See the Sambiaggio Case in J. Ralston Venezuelan Arbitrations

of 1903, 689 (1904).
53. See the Brazilian Federal Loans Case [1929] P.C.I.J. ser.A
Nos. 20, 27, 114: 1[T]here is a familiar rule for the con-
struction of instruments that where they are found to be
ambiguous, they should be taken contra proferentem."
54. Bourne, supra n.44, 117.
55. A. McNair supra n.32, 412. Cf. D. Anzilotti Cours de droit
international 113 (1929).
56. Lausanne Peace Treaty Case [1925] P.C.I.J. ser.B No. 12, 25.
57. B. Cheng supra n.3, 114. See also 3 C. Calvo Le droit inter-
national theorique et pratique 395 (4th ed. 1888).
- 13 -
garnered from the very title of the Treaty and the provisions of
Art. I. The spirit of the Treaty is one of amity, friendship
and co-operation and this aim is incompatible with the position
taken by New Helios, whose inevitable result would be to stifle
Karma's economy.
III. KARMA IS NOT RESPONSIBLE FOR ANY HARM WHICH HAS BEEN OR MAY
BE INFLICTED UPON THE ENVIRONMENT OF NEW HELIOS UNDER GENER-
AL PRINCIPLES OF INTERNATIONAL LAW.
A. Karma is not responsible for environmental injury under

customary international law.
1. Karma's use of water resources is consistent with princi-
ples accepted by the'United Nations.
The Stockholm Declaration accepts the legitimate development
concerns of emergent nations. "The environmental policies of all
states should enhance and not adversely affect the present or
future development potential of developing countries, nor should

58
they hamper the attainment of better living conditions fbr all..."
The United Nations conference recognized the special position of
such nations as they attempt to reconcile economic development
with perfection of the environment. "...standards which are
valid for the most advanced countries...may be inappropriate and

59
of unwarranted social cost for the developing countries."
Karma's use of water resources to further its economic development
is consistent with this approach. Any interference with such
58. Declaration of the United Nations Conference on the Human En-

vironment - Stockholm (1972) U.N. DOC. A/CONF. 48/CRP. 26,
Article 11
59. Id., Article 13 "It would be a complete and adequate answer
if the countries wishing pollution abatement would finance
such abatement rather than pass the cost on to those countries
who can less afford it." Rubin, "Pollution by Analogy: The
Trail Smelter Arbitration", So Ore. L. Rev. 259 (1971), 274.
- 14 -
uses without regard for the economic consequences would violate

60
this widely accepted statement of principle.
2. The actions of Karma are not in breach of any rule of cus-

tomary international law found in river treaties.
a) The relevant treaties do not reflect any principles of

customary international law.
No uniform approach to state responsibility for environmental

61
damage has been adopted in river treaties. "The way these
treaties deal with pollution suggests that special criteria for
each drainage basin are more desirable than general principles
capable of application to all basins." 62 No customary rules of
international law can be derived from these regional arrangements.
b) If the treaties determine generally accepted principles,

New Helios has an onus of proving substantial environ-
mental injury.
The treaties refer to obligations to prevent only "substantial"
60. The Stockholm Conference was to establish "principles of con-

duct for states in dealing with environmental problems of in-
ternational significance." The representatives of the 114
countries present adopted the Declaration on the Human Envi-
ronment. International Law Association, Report of the 55th
Conference, New York 1972 499 (1973).
61. "...the problems of pollution control in internationally
shared waters are essentially regional and subject to differ-
ent treaty arrangements." J. Barros and D. Johnston, The In-
ternational Law of Pollution 70 (1974). For example, see:
Article 11(2) of the Indus Waters Treaty: "Nothing in this
Treaty shall be construed...as in any way establishing any
general principle of law or any precedent." Indus Waters
Treaty Between India and Pakistan, Sept. 19, 1960 U.N. DOC.
ST/LEG/SER.B/12, 300, 312. See also Article 56(2) of the
Frontier Treaty Between the Netherlands and the Federal Re-
public of Germany, April 8, 1960 U.N. DOC. ST/LEG/SER.B/12,
757.
62. Bourne, supra note 44, 132.
- is -
harm, and "excessive" pollution. 6 3 If they indicate rules of
customary international law, New Helios must satisfy the Court
that it has suffered "substantial" injury through "excessive"
pollution.
c) The treaties indicate that only reasonable measures are

to be taken in abating pollution.
Only reasonable pollution control measures are required by

64
treaties. It is submitted that the prohibitive cost of pollu-
tion control devices for the paper mill, and the economic hard-
ship involved in any-halt of power plant operations, represent
unreasonable control measures which Karma should not be obliged
to institute.
3. Karma has not violated any principles formulated in unoffi-

cial statements relatedto theuse of international drain-
age basins.
The Helsinki Rules formulated by the International Law Asso-
ciation exempt a state from liability for pollution consistent
with its reasonable share of the beneficial uses of a river sys-
tem. "...as pollution may be a by-product of an otherwise
63. See Article 4(10) of the Indus Waters Treaty, supra note 61,
305; Article 58(2)(e) of the Frontier Treaty, supra note 61,
758. The distinction between substantial and minor damage
could be understood as the difference in the relative value
of the modification in relation to the utility of the develop-
ment. P. Sevette, "Legal Aspects of Hydro Electric Develop-
ment on Rivers and Lakes of Common Interest", U.N. Doc. E/
ECE/136 (1952) E/ECE/EP 98 Rev. 1, 212.
64. See Article 4(10), Indus Waters Treaty, supra note 61, 305;
Article 58(3), Frontier Treaty, supra note 61, 758; Article
1(2), Convention sur la protection du lac de Constance contre
la pollution, October 27, 1960 U.N. DOC. ST/LEG/SER.B/12 438,
439.
65. International Law Association, Report of the 52nd Conference
Helsinki 1966 496 (1967), Article X.
- 16 -
beneficial use of the waters of an international drainage basin,

so." 6 6
...international law...does not prohibit pollution per
Moreover, any duty to take control measures need only be reason-
able. 67 It is submitted that Karma's use of water resources is
a reasonable and necessary consequence of the pressing require-
ments for economic development, thereby excusing even substantial
environmental harm.68
B. Karma is not responsible for environmental injury under

principles of law recognized by civilized nations.
1. The concept "sic utere tuo ut alienum non laedas" is in-

adequate to assess environmental responsibility.
Without specific criteria to determine the existence and ex-
tent of state responsibility for pollution, this maxim cannot
be invoked to establish Karma's responsibility for injury to the

7 0
environment of New Helios.
2. The abuse of rights doctrine has no application.
a) It is not a general principle of international law.
While this doctrine may be significant in civil law systems,

71
it cannot be considered a principle de lege lata.
66. Id., 500.

67. "This duty,...does not apply to a state whose use of the waters
is consistent with the equitable utilization of the drainage
basin." Id., 499.
68. "If...an existing use causing pollution is found to be reason-
able, then it is not illegal even if it causes serious injury
and may be continued." Bourne, supra note 44, 127.
69. "Use your property so as not to injure that of another."
70. J. Barros and D. Johnston, supra note 61, 75.
71. Schwarzenberger, "Uses and Abuses of the "Abuse of .Rights'in
International Law", 42 The Grotius Society 147 (1957) 150;
I. Brownlie, spra note 3, 432; A. Garretson, R. Hayton, C.
Olmstead (ed.7TWe Law of International Drainage Basins 97 (1967).
- 17 -
b) Application of the doctrine requires intent to injure.

Karma's actions were based on legitimate self-interest, with-
out intent to injure a co-riparian. Absent such intent, no ques-

tion of abuse of rights can arise in international law.7 2
3. The riparian rights doctrine sanctions Karms's use of

the drainage basin.
The doctrine of riparian rights entitles an upper riparian to
make any reasonable use of river waters which does not substan-
tially interfere with the beneficial uses of a lower riparian.73
It is submitted that Karma's utilization of water resources in
support of economic development is reasonable. Moreover, New

Helios must prove substantial damage to its beneficial use under
the doctrine in order to establish Karma's liability.
C. Karma cannot be found responsible for environmental injury

on the basis of principles reflected in judicial decisions.
1. Karma's use of the drainage basin is not in conflict
with the decisions of international tribunals.
Since liability had already been admitted, and as the Tribunal
relied almost exclusively on American municipal precedent, the
Trail Smelter Arbitration is of dubious international authority. 74
Even if the decision is regarded as authoritative, liability was
confined to cases of "substantial injury", established by "clear
and convincing evidence." 7 5 New Helios must satisfy the Court

that these conditions have been met. The Lake Lanoux Arbitration,
72. Gutteridge, "Abuse of Rights", 5 Camb. L.J. 22 (1932) 42; F.

Berber, Rivers in International Law 209 (1959).
73. Davis, "Themes of Water Pollution Litigation," 3 Environment
L. Rev. 237 (1972) 241.
74. Rubin, spra note 59, 268.
75. Trail Smelter Arbitration, (United States v. Canada), 3
U.N.R.I.A.A. 1905 (1941), 1965.
- 18 -
in stipulating that states must make mutual concessions to accom-

76
modate inconsistent uses, lends its authority to a principle
of reasonable apportionment of beneficial uses under which Karma's
needs as a developing nation should be recognized.
2. The decisions of municipal courts do not impugn Karma's

actions.
Municipal judicial decisions based on relationships between
the states of a federal system are of uncertain value. 7 7 However,
the United States Supreme Court has determined that a state seek-
ing to impose liability for pollution on another must establish
a case sufficient to outweigh all considerations in favour of
the polluting state. 7 8 New Helios cannot establish such a case
in view of Karma's reasonable use of water resources for purposes
of economic development.
D. Strict liability for pollution damage is not an accepted

principle of international law.
Karma cannot be held strictly liable for environmental injury.
The doctrine of absolute liability in international law is
limited to treaties pertaining to areas of very hazardous acti-

79
vities. The general assessment of responsibility for injury
80
is still based on considerations of fault.
76. Lake Lanoux Arbitration(France v. Spain) 24 I.L.R. 88 (1957) 120.

77. Eagleton, "Use of the Waters of International Rivers", 33
Can. Bar Rev. 1018 (1955) 1022.
78. Missouri v. Illinois 200 U.S. 496, 521 (1906); See also
Wyoming v. Colorado 259 U.S. 419 (1922), New York v. New
Jersey 256 U.S. 296 (1920), Kansas v. Colorado 206 U.S. 46
(1907).
79. J. Barros and D. Johnston, supra note 61, 74.
80. H. Lauterpacht, Private Law Sources and Analogies of Inter-
national Law 140 (1927).
- 19 -
E. Karma's exercise of territorial sovereignty is consistent

with general principles of international law.
1. There can be no responsibility for pollution in the ab-

sence of universally applicable principles.
There is no general agreement as to what constitute principles

81
of international law governing liability for pollution. In the
absence of such opiniojuris, no legal consequences attach to
Karma's activities.
2. Karma's exercise of territorial sovereignty cannot be

impugned absent any legal obligation to the contrary.
International law does not extend to acts committed within the
territory of a sovereign state in the absence of any contrary

82
binding legal obligation.
F. The equitable utilization principle enables Karma to con-

tinue its use of the drainage basin.
1. Equitable utilization is an accepted principle of inter-

national law.
International and municipal decisions have accepted equitable
utilization as a means of resolving conflicting uses of interna-
tional drainage basins.83 The 1966 Helsinki Rules adopted by the
81. Austin, "Canadian-U.S. Practice and Theory Respecting the In-

ternational Law of International Rivers", 37 Can. Bar Rev. 393
(1959); "Only regional practices may be discovered, and they
must remain clearly and narrowly restricted to those cases
where they can be proved beyond doubt." F. Berber Rivers in
International Law 149 (1959).
82. "Territorial sovereignty-plays the part of a presumption. It
must bend before all international obligations,...but only be-
fore such obligations." Lake Lanoux Arbitration, supra note
76, 120.
83. "This community of interests becomes the basis of a common
legal right, ...the perfect equality of all riparian states in
the user of the whole or the course of the river. ..." River
Oder Case [1929] P.C.I.J. ser. A, No. 23, 27. See also the
Lake Lanoux Arbitration, supra note 82, 57; Wyoming v. Colorado
259 U.S. 419 (1922); Nebraskav. Wyoming 325 U.S. 589 (1945);
'Kansas v. Colorado 206 U.S. 46 (1907).
- 20 -
International Law Association were a detailed statement of the
principle. 8 4Publicists have advanced it as indicative of current

85
in the development of international drainage basin law.
trends
2. The principle sh6uld'be applied to enable Karma to con-

tinue its useof the drainage basin.
Karma should be allowed to continue its utilizations as part of
its reasonable and equitable share in the beneficial uses of the
river system. In essence, equitable utilization "balances the

86
harm done to the other."
needs and benefits of one state against the 87
There can be no question of preferred uses. Prior appropriations
are not entitled to protection above the competing needs of co-

.1 88
riparian states.
Karma's utilizations are essential for its continued development.
Exploitation of resources in the Wilderness Region is the basis
of Karma's economic growth, and the operations of the paper mill
are a significant part of that development [F-l-2]. The prohibi-
tive cost of pollution control devices [F-2], if forced upon the
mill, would make further operations uneconomic, resulting in a
84. Report of the 52nd Conference, supra note 65, 1023.

85. These include: F. Berber, supra note 72, 25; Bourne, supra. note
44, 23; J. Lipper, "Equitable Utilization", upra note 71, 15
(1967); Eagleton, supra note 77, 1023; 1 D. O'Connell, Interna-
tional Law 616 (2nd ed., 1970); A. Garretson (ed.), supra note
71, 15-88 passim.
86. Eagleton, sura note 77, 1023.
87. "It has been said that domestic use has succeeded navigqtion
as a preferential use. However, substantial authority support-
ing the proposition has not been found ....the granting of such
a preference would be inconsistent with a principle of equita-
ble utilization ...." Report of the 52nd Conference, supra note
65, 491 Article VI.
88. Id., 493 Article VIII; see also Bourne, "Procedure in the
Development of International Drainage Basins", 22 U. Toronto
L.J. 172 (1973) 189.
- 21 -
halt to production. This would threaten further development in
the region and jeopardize Karma's economic stability. Power from
the nuclear plant is essential if Karma's growing manufacturing
and industrial potential is to be realized [F-3]. Power shortages
have already curtailed industrial expansion [F-4]. Without an in-
creasing supply of power Karma's industrial development will be
seriously jeopardized.
New Helios, as an advanced and wealthy nation [F-l], can easily
absorb the cost of purification facilities, especially since the
alternative involves interference with a co-riparian's development.
The needs of a brewery cannot outweigh those of a power plant
which must supply energy for industrialization and food production
[F-4]. The brewery can distribute any additional expenses in-
curred among consumers of its products. Lost recreational ameni-
ties are insignificant when contrasted with the economic well-being
of thousands of mill workers.
Pollution is just one factor to be considered in determining

89
"the proper utilization of a water resource." It is a consequence
of development utilizations, and as such is part of Karma's right
to a "reasonable and equitable share in the beneficial uses of the
drainage basin."9 0 The injuries suffered by New Helios cannot
compare with the economic and social costs involved in halting
Karma's utilizations. 91

91. "It is of little value now to warn nations saddled with concrete,
visible and pressing economic problems that they must...revise
their goals, because they are contributing to a vaguely defined
ecological crisis." Dickstein, "International Law and the Envi-
ronment: Evolving Concepts", Yearbbok of World Affairs 245 (1972)
248.
- 22 -
G. Karma was not required to consult New lelios under general

1. The duty to give notice in international law is not man-

datory.
The requirement to give notice of utilizations to co-riparians
92
is confined to cases involving a threat of serious injury. Karma
was not required to notify New Helios with respect to the power
plant since the utility operates under strict international safe-
guards [F-3]. Moreover, it is impossible to determine at the pre-
sent time whether future power operations will inflict serious
injury on New Helios.
2. Karma was not required to obtain the consent of New Helios

for its utilizations.
"...the idea that a riparian state has a veto over development
in the territories of co-riparian states is...no longer accepted."9 3
The difficulty of determining the extent of possible future injury
flowing from a proposed utilization does not entitle the co-riparian
to withhold its consent and thereby paralyse development in the
basin. Accordingly, Karma was entitled to proceed With its uses
without consent.
IV. NEITHER DAMAGES NOR INJUNCTIVE RELIEF SHOULD BE AVAILABLE TO

NEW HELIOS.
A. If Karma is found responsible for harm caused to the environ-

ment of New Helios, no injunction should be granted.
1. The Court does not have the jurisdiction to grant an

injunction.

93. Bourne, "The Right to Utilize the Waters of International
Rivers", 3 Canadian Yearb66k 6f International Law 187 (1972)
244; "...co-riparians do not have what in effect would amount
to a right of veto; ...." de Arechaga, "International Legal
Rules Governing Use of Waters from International Watercourses",
2 Inter American L. Rev. 329 (1960) 337.
- 23 -
While interlocutory injunctive relief is authorized by Article
41(1) of the Stature of the Court, final injunctive relief is no-
where authorized.94 No international judicial authority supports
the grant of a permanent injunction.
2. Should the Court find that it is authorized to grant an

injunction, such relief wouldbe inequitable in the cir-
cumstances.
The harm suffered by the applicant, "is actually far less serious
than the harm that would be suffered by the respondent in obeying
an injunction... ''95 Cessation of the paper mill operations would
result in harm to Karma far in excess of any injury suffered by
New Helios. "...it is doubtful whether injunctive relief could
provide sufficient flexibility and compromise. It would clearly
be inappropriate to prohibit any ue resulting in trans-boundary
injury....",96A quia timet injunction with respect to the nuclear

power station is inappropriate as "the mere prospect of probabili-
ty of injury does not entitle the plaintiff to this relief" unless
the damage would be irreparable. 9 7 It is'submitted that any injury
resulting from the power plant when fully operational would not be
irreparable.
3. Monetary damages constitute sufficient compensation.
Should Karma be found responsible for environmental injury, in-
demnification for additional water purification facilities, and the

98
installation of cooling lagoons, would be adequate compensation,
94. 3 M. Whiteman, Digest of International Law, 335 (1964).

95. J. Dobbyn, Injunctions in d Nutshell, 81 (1974).
96. Lester, "River Pollution in International Law", 47 Am. J.
Int'l. L. 828 (1963), 848.
97. A. Wisdom, The Law of Pollution, 70 (1966).
98. ChorzowFacto±y (Jurisdicti6n>)Case [1927] P.C.I.J., ser. A,
No. 9, 27.
- 24 -
thereby obviating the need for an injunction.
B. Monetary compensation is not appropriate in the circumstances.
"...one can deny the existence of a rule that compensation must

injured."9 9
always be paid when existing beneficial uses are seriously
A state may cause injury to th beneficial uses of co-basin states
if its own activities involve a reasonable and equitable share in

100
the beneficial uses of the river basin. Since Karma's use of
the drainage basin for the purposes of economic development must
be viewed as reasonable and equitable, compensation for attendant
injury to New Helios is not necessary.
C. The appropriate relief would be the recommendation of a per-

manent joint commission.
"In this complex situation, a regulatory rather than an adjudi-

01 The complexity of the
cative process would seem appropriate."
factors which the Court should consider in "prescribing the level
of cleanliness that is tolerable in light of the dominant water
needs of the community'I02 is such that a regional commission to

103
regulate the use of the river system is appropriate.
The typical judgment of the Court is "a declaration of law

1 04
rather than an order as to particular relief or a specific relief.
It is submitted that the Court may follow this practice and strongly
recommend that the parties establish a permanent joint commission
to regulate boundary waters.

99. Bourne* supra note 88, 195.
100. Id., 258.
101. Lester, supra note 96, 848.
103. "...law or judicial action alone is not able to provide a per-
manent solution to the continuing and changing problems of a
river system." Eagleton, supra note 77, 1026.
104. David Davies Memorial Institute of International Studies,
International'Disputes, The Legal'Aspects 137 (1972).
- 25 -
CONCLUSION
It is respectfully requested that this Honourable Court:
1. Dismiss all claims for declarations or damages sought by
New Helios.
2. Grant Karma a declaration that it may continue to utilize
the waters of the drainage basin for purposes of economic
development.
3. Recommend the establishment of an international commission
to supervise the use of boundary waters.
All of which is respectfully submitted.
Counsel for Karma.

ANNEX A -26-;, d
OC2
WILbDgItomus-6
Kutr.1o
NEW HELIOS
CAPITAL
0% * '%04 ,
LOIE
.IW6Ry
N UGLEAR
PLAPT
Ic ifnmus
SOOxIATO
CAIAL. ow
. ° ... , .
-27-
ANNEX B
1923 Treaty of Amity, Friendship, and Economic Cooperation
ARTICLE I
In order to carry out the purposes and objectives of this

Agreement, the States of Karma and New Ilelios agree to
cooperate and consult with one another as appropriate
on matters of mutual interest.
ARTICLE II
Paragraph 1. Both States agree that in keeping with the
general aim of amity, friendship and economic cooperation,
neither State shall pollute boundary waters or other
waters running between them so as to injure the health
or property in the other State.
Paragraph 2. In furtherance of this responsibility the
parties undertake to enter into specific arrangements
as appropriate.
ARTICLE III
The Lower Peace River shall be open to the ships of both
States, and navigation shall not be impeded or unreasonable
conditions placed thereon, unless a situation arises in
which either State, upon notification to the other, be-
lieves that health and safety require the imposition of
such conditions.
ARTICLE IV
Paragraph 1. Disputes between the two States shall be
settled amicably and equitably with full regard to the
purposes and principles set forth in this Agreement.
Paragraph 2. Upon the request of either State, both
States agree that questions arising under this Agree-
ment which have not been settled within a reasonable time
may be brought to arbitration, each State choosing one
arbitrator and the remaining arbitrator to be agreed
between them or, if agreement is not reached within a
period of six months from the date of the selection of
the two other arbitrators, such third arbitrator shall be
selected by the President of the Permanent Court of
International Justice.
Paragraph 3. At the time a request for arbitration is
made, or at any time before the arbitration commences,
either State may request that the dispute be submitted to
the Permanent Court of International Justice or to a special
chamber of that Court. The agreement of the other State
shall first be obtained before submission is made to the
Court.
COURT COMPETITION
1975


(Applicant & Respondent)
Rutgers Award** Syracuse University College of Law #28*
* Memorial was not available through the ASILS, American Society of

International Law, or the respective school.
** There was a tie for Rutgers Award between Syracuse University

College of Law and University of Michigan Law School.
-COURT COMPETITION
1975


(Applicant)
Rutgers Award** University of Michigan Law School #29
** There was a tie for Rutgers Award between Syracuse University

College of Law and University of Michigan Law School.
IN THE INTERNATIONAL COURT OF JUSTICE
THE GOVERNMENT OF NEW HELIOS, Applicant
V.
THE GOVERNMENT OF KARMA, Respondent
Memorial for APPLICANT, The Government of New Helios
Team Number 2
March 14 & 15, 1975
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................... iii
JURISDICTION . . . . . . . . . . . .. . . . . . .. vi
STATEMENT OF FACTS .A. .......... .................. . vi
QUESTIONS PRESENTED ........ ................... viii
SUMMARY OF ARGUMENT . .......... .................. ix
ARGUMENT AND AUTHORITIES ........ ................. 1

I. KARMA IS RESPONSIBLE FOR ALL DAMAGE INFLICTED
ON NEW HELIOS AS A RESULT OF TRANSBOUNDARY
POLLUTION ....... . . . . . . . . ................. 1
A. Karma Has Failed to Meet Its Obligations

Under the 1923 Treaty of Amity, Friendship,
and Economic Cooperation with New Helios.. 1
1. Activities taking place within the
territorial jurisdiction of Karma have
resulted in pollution, causing injury
to the health and property of New Helios
and its citizens. . ...... ........... 2
2. Karma is responsible to New Helios for

the transboundary effects of this pollu-
tion even though the wastes of the
paper mill and shantytown result from
private activity.. ..... ........... 4
3. Karma has failed to cooperate and consult
with New Helios on treaty matters of
mutual interest .... ................ 6
4. There can be no question of the continu-
ing validity and enforceability of the
1923 Treaty ....... .............. 8
B. The Release of Untreated Municipal Sewage,
Raw Industrial Waste, and Unmoderated Nuclear
Reactor Thermal Discharge into the Waters of
an International Drainage Basin which Causes
Injury within the Territory of a Neighboring
State and Deprivation of the Beneficial Use of
Those Boundary Waters by That State is a
Violation of Customary International Law.. 9
C. Karma's Claims upon the Beneficial Uses
of these International Waters Are Not
Acceptable as an Arguably -Reasonable
and Equitable Share or those uses, even
Considering its Special Needs as a
Developing State . . ............... 18
1. None of the Present or Proposed Uses

by Karma Meet the Standard of Equitable
Utilization as set forth in Articles IV
through XIII of the Helsinki Rules . . . . 19
2. Karma As an Equal and Sovereign State

Must Be Responsible for Injurious Conduct
to the Same Degree as Other States . . . . 21
3. Karma Has Abused its Right to Use the

River in a Reasonable Manner ............ 23
II. KARMA'S RESPONSIBILITY TO NEW HELIOS FOR DAMAGE

DUE TO TRANSBOUNDARY POLLUTION GIVES RISE TO AN
OBLIGATION BY KARMA TO MAKE REPARATIONS ..... . 23
PRAYER FOR RELIEF . . ...................... 25
APPENDIX .......... .......................... 26

TABLE OF AUTHORITIES
Page
TREATIES AND OTHER INTERNATIONAL AGREEMENTS
Additional Protocol to the Treaty of Bayonne,

56 Brit. and For. State Papers 212 (1865-6) ............. 7
Treaty with Great Britain Relating to Boundary

Waters, and Questions Arising Between the United
States and Canada, January 11, 1909, 36 Stat.2448,
T.S. No.548 (1910) ..................................... 2
Vienna Convention on the Law of Treaties,

U.N. Doc.A/Conf.39/27 (1969); 63 A.J-.I.L. 875
(Oct. 1969) .............................................. 1, 8
CASES
Anglo-Iranian Oil Case, Order of July 5, 1951,
/1951/ I.C.J. Reports .......................... 25
Corfu Channel Case,/T9497 I.C.J. 4;
43 A.J.I.L. 558 (1949)................................. 6,12,
13,24
Case Concerning the Polish Agrarian Reform
and the German Minories, Interim Measures of
Protection, /1933/P.C.I.J., Ser.A/B, No.58 ........... 25
Case of the Factory at Chorzow,
/1928/ P.C.I.J., Ser.A, No.17................... ...... 23,24
Diverson of Waters of the Meuse,
/1937/ P.C.I.J. Ser. A/B, No.70 ........ .... 24
Fisheries Case, Judgment of December 18, 1951,

/1951/ I.C.J. 116 ...... ............ ... . ...... 20
Free Zones of Upper Savoy and the District of

Gex, /1932/ P.C.I.J., Ser.A/B, No.46; 2 Hudson,
WorldCourt Reports 448 (1935).......................... 8
International Commission of the River Oder Case,
/1929/ P.C.I.J., Ser.A, No.23 ......................... 18
Lac Lanoux arbitration, 62 Revue Generale de Droit
International Public 79 (1958); 53 A.J.I.L. 156 (1959)... 7,14
North Sea Continental Shelf Case,
/1969/ I.C.J. 3 .............................. 19
iii
Page
Nuclear Tests Cases, Interim Protection,
£1973/ I.C.J. 99, I.C.J. 135 .......................... 12, 13,
24
Nuclear Tests Judgment of December 20, 1974,
/1974/ I.C.J. 253, I.C.J. 457 ........................... 14
Societe Energie Electrique du Littoral Mediterraneen
v. Compagnia Imprese Elettriche Liguri, Judgment of
February 13, 1939, /1938-1940/ Ann.Dig. No.47 (Corte
di Cassazione) .................. ............. 15
Trail Smelter, Decision of 1938,

33 A.J.I.L. 200 (1939) ................................ 24
Trail Smelter, 35 A.J.I.L. 684 (1941) ................... 5, 11,

12, 24
United Mexican States (Mall6n) v. United States,

General Claims Comm'n., Opinion of Commissioners
254 (1927)...................... ....................... 24
Wgrttemberg v. Baden, /1927-19287 Ann.Dig. 128, No.86... 19
UNITED NATIONS DOCUMENTS

Sevette, Legal Aspects of Hydro-Electric Development
of Rivers and Lakes of Common Interest, U.N. Doc.
E/ECE/136, at 211 (1952) ................................ 17, 25
U.N. Conference on the Human Environment,
U.N. Doc.A/CONF.48/14 (1972) ........................... 10, 22
JOURNALS
Andrassy, "Les Relations Internationales de Voisinage",
79 Recueil des Cours II 72 (1951)....................... 17
Lissitzyn, "Treaties and Changed Circumstances
(Rebus Sic Stantibus)", 61 A.J.I.L. 895 (1967)...........9
Wright, "Subversive Intervention", 54 A.J.I.L.
521 (1960) ................................ ........... 15
TREATISES, DIGESTS, RESTATEMENTS Page
Barros and Johnston, The International Law

of Pollution 104 (1974) ............................. 4
Bin Cheng, General Principles of Law as Applied

by International Courts and Tribunals (1953) ........... 23
3 Blackstone, Commentaries on the Laws of England
(Chitty ed., 1827) ......... ...................... 15
Brierly, Law of Nations (4th ed., 1949) ................ 8

1 Hackworth, Digest of International Law (1940) ....... 10
Lauterpacht, 1 Oppenheim's International Law
(8th ed., 1955) ........................................ 10, 14,
15
Smith, The Economic Uses of International Rivers

(1931) ................................................. 18
3 Whiteman, Digest of International Law (1964) ......... 15, 17
STATUTES
U.S. Federal Water Pollution Control Act
Amendments of 1972, 33 U.S.C.A. S1362 ................... 4
OTHER DOCUMENTS AND MISCELLANEOUS
Christ, "Assessment of economic Damaged Caused By

Water Pollution", 13 W.H.O. Public Health Papers (1962).. 4
Final Report of the International Joint Commission,

U.S.-Canada, on the Pollution of Boundary Waters
Reference 34 (1918).................................... 20
McNaughton, "The Financial and Economic Aspects of

Water-Pollution Prevention", 13 W.H.O. Public Health
Papers (1962) .............. ................... ... . 20
U.S.-Canada I.C.J. Reports 1918; 1951; 1963; 1965;

and 1970 ......................................... ... 3
W.H.O., International Standards for Drinking

Water (3rd.ed., 1971) ......... ................. 20
JURISDICTION
New Helios and Karma jointly submit to the jurisdiction of
the International Court of Justice on the basis of Article 36
of its Statute waiving the defenses of sovereign immunity and
exhaustion of local remedies.
STATEMENT OF FACTS
New Helios and Karma are neighboring states and co-riparians
to the international drainage basin composed of the Peace River
and International Lake. (See map in appendix). A 1923 Treaty
of Amity, Friendship, and Economic Cooperation provides, inter
alia, that.."neither State shall pollute boundary waters to the
injury of the health or property of the other,'and that both
States shall "cooperate and consult on matters of mutual inter-
est."
In 1964, a large commercial pulp and paper mill was opened
on the Upper Peace River. The wastes from this mill and the
human sewage from the rapidly growing settlement of 20,000 sur-
rounding it, are discharged into the Upper Peace River untreated.
The World Development Authority, an intergovernmental organiza-
tion, has recommended that the mill construct facilities for the
treatment of its wastes and those of the boom town. The mill
company has promised to build modern housing, thereby alleviating
the sewage problem, but has done nothing yet.

The untreated wastes from the paper mill have rendered the
waters of International Lake unfit for human potation. Since
both the capital of New Helios and the world-famous Lower Peace
Brewery draw their drinking and brewing water from the Lake,
they have been forced to install sophisticated water purification
facilities at considerable costs. Unless the paper mill takes

some action to treat its wastes, New Helios will be forced to
spend another $2,000,000 to purify the Lake's water and the
Brewery may have to find a new source of water at additional
cost. Most critically, an increase in the incidence of typhoid
among New Helios' citizens was reported in 1970. As a result,
health authorities were forced to close the beaches along Inter-
national Lake.
In 1970, without either notifying or consulting New Helios,
a state-owned utility in Karma began construction of a very
large nuclear power generating plant at the point where the
waters of the Lake enter the Lower Peace. In May, 1974, the
plant became operative at 10% of capacity, emptying its heat-
laden cooling waters back into the Lower Peace River. The citi-
zens of New Helios have found that this interferes with their
recreational uses of the River. The Lower Peace Brewery,
located downstream from the plant requires clear and cool waters
to produce its premium beers and will be forced, should the plant
vii
go fully operational, to spend $900,000 for special cooling
lagoons or else find a new source of water. The State of New
Helios has protested several times against the location and
construction of the plant, but Karma has always reacted with a
blunt assertion of a sovereign right to develop in any way it
chooses.
Finally in July, 1974, New Helios formally and vigorously
protested._askng that the dumping of wastes from the paper mill
and sewage from the shantytown as well as the thermal discharge
from the nuclear plant be halted immediatelyas violations of the
1923 Treaty and of customary international law. Karma rejected
New Helios assertions of law and claimed a right to continue on
its present course. This dispute now threatens the long, peace-
ful, and productive relationship between the two states and is
submitted to this Court for adjudication.
QUESTIONS PRESENTED
I. Whether Karma has failed to fulfill its obligations to New

Helios under the 1923 Treaty of Amity, Friendship, and
Economic Cooperation.
II. Whether the actions of Karma are violations of the general

III. What reparations are due New-Helios in compensation for

injuries and imminent losses.
viii
SUMMARY OF ARGUMENT
The Peace River and International Lake form a common and
potentially very productive resource for both parties to this
adjudication. Claims to the river based on strict territorial
sovereignty could split this natural system in two, yet the
physical indivisibility of the system necessarily transmits the
effects of any act from one territory to the other.
This community of interests is the basis of the treaty to
protect the river and lake from abuse by pollution substantial
enough to Cause injury to health and property. Karma's release
of raw sewage, noxious industrial wastes, and unmoderated heat
from-its nulcear power plant are clear violations of the Treaty.
Each is causing serious injury to the citizens and territory of
New Helios. International'law requires that treaty obligations be
respected and imposes indemnities and other reparation for such
violations. Karma must comply with the treaty or be sanctioned.
Karma has also violated the duty not to pollute an international
waterway which arises from the more general duty not to use or
permit the use of one's territory in such a manner that injury
is inflicted on the territory, property, or persons of another
nation. This is a well-recognized rule of customary internation-
al law, which is based in the traditional doctrine of sic utere
tuo, and is recognized in the recent private codification of

customary international river law, the Helsinki Rules. Even
when the claims of Karma are examined as mere assertions of
equitable utilization, they must be found to be an abuse of the
rights which flow from a reasonable and equitable share of
beneficial uses.
Although the needs of the developing nations must be given
consideration by all industrialized nations, the international
community cannot condone the creation of a double standard for
state responsibility or the interposition of absolute sovereign
immunity to the detriment of the principles of equality and
neighborliness.
Karma's violations of its treaty obligations and the duties
of customary international law require this Court to order repa-
rations and equitable relief for the injuries done New Helios.
Damages must be assessed. Sewage which threatens human life must
be abated. Untreated industrial wastes which prevent any further
beneficial use of the waters of the lake and river must be moder-
ated so that New Helios with its present sophisticated purifi-
cation facilities again has a safe and economic source of water
for drinking and brewing. Water should be suitable for recrea-
tion as well. The volume of effluent from the nuclear power plant
must not be increased until Karma can prove to this Court that it
will not cause injury in New Helios or until cooling towers are
installed. Finally, damages in the mture of economic rents must

be ordered if the final regime governing this common resource
allows future injury. Alternatively, this Court should impose
provisional measures to protect the rights of both parties until
further proofs can be submitted and a permanent regime can be
tailored to provide a reasonable sharing of this valuable com-

mon resource.
KARMA IS RESPONSIBLE FOR ALL DAMAGE INFLICTED ON NEW HELIOS AS

A RESULT OF TRANSBOUNDARY POLLUTION.
Karma's responsibility to New Helios for the damage result-

ing from transboundary pollution derives from its obligations
under international law, that is, treaty, customary international
law, general principles of municipal law and, subsidiarily, the
writings of publicists and judicial decisions. Article 38 of the
Statute of the International Court of Justice. Careful con-
sideration of these sources will reveal that Karma has violated
its obligations under international law.
A. Karma Has Failed to Meet Its Obligations Under

the 1923 Treaty of Amity, Friendship, and
Economic Cooperation with New Helios.
As the only bilateral treaty between Karma and New Helios,
the 1923 Treaty is the principal source of law expressly recog-
nized by both parties to this dispute. The principles on treaty
interpretation enunciated in Article 31 of the Vienna Convention
on the Law of Treaties, U.N. Doc.A/Conf.39/27, 23 May 1969; 63
A.J.I.L. 875 (Oct.1969), is the latest expression of the inter-
national community on the law of treaties, although it is not as
yet in force as conventional international law.
Article 31 provides that a treaty be interpreted by the
ordinary meaning of its terms in context and in light of the pur-
poses of the treaty. Neither contemporary documents nor
subsequent agreements relating to the treaty are available, and
the Court must therefore consider customary rules of internation-
al law applicable in the relations between co-riparian states as
well as the ordinary meaning of the terms in the light of the
treaty's purpose.
1. Activities taking place within the territorial
jurisdiction of Karma have resulted in pollu-
tion, causing injury to the health and property
of New Helios and its citizens.
Article II, paragraph 1, of the 1923 Treaty provides that
"/b7oth parties agree that . . . neither State shall pollute
boundary waters or other waters running between them so as to

injure the health or property in the other State." Although the
obligation assumed by Karma is a limited one, i.e. not to pollute
to the injury of health and property in New Helios, it is to be
observed "in keeping with the general aim of amity, friendship,
and economic cooperation". As "pollution" is defined in terms of
"injury", the Court may wish to make reference to other inter-
national agreements concerning transboundary pollution.
The Treaty with Great Britain Relating to Boundary Waters,
and Questions Arising Between the United States and Canada, Jan.ll0
1909, 36 Stat.24 4 8, T.S. No.548 (Article IV), contains a provision
that " boundary waters or waters flowing-across the bound-
ary shall not be polluted on either side to the injury of health
or property on the other". This virtually identical treaty lan-
guage definition of pollution in terms of injury has been
amplified by the work of the U.S.-Canada International Joint
Commission. In the Final Report of the International Joint Com-
mission, U.S.-Canada, on the Pollution of Boundary Waters
Reference 34 (1918) (hereinafter 1918 Final Report), the IJC
found the term'!njury as used in the treaty to have a meaning
analogous to the term 'injuria' in jurisprudence, i.e. "harm or
damage . . . in excess of Lthat7 . . . which the sufferer, in
view of all the circumstances of the Case, . . . and of the
paramount importance of human health and life, should reasonably

be called upon to bear".
New Helios has been called upon to bear unreasonable damage
to the health and property of its citizens as a result of
pollution originating within Karma. Moreover, the complete
failure of the paper mill to treat its wastes has rendered the
water of the International Lake, drawn upon by the capital of
New Helios for domestic uses, unfit for human consumption. This
threat to the health of New Helios' citizens has been averted
for the moment only by the installation of sophisticated water
purification systems at considerable expense, which constitutes
an "injury to property" of the State of New Helios in violation
of the 1923 Treaty, as interpreted by all of the U.S.-Canada IJC
Reports: 1918, at 23; 1951, at 168; 1963, at 68; 1970, at 122-126.
Moreover, untreated sewage from the shantytown around the
nill has contributed to an increase in the reported cases of
typhoid on International Lake, an injury to health in violation
of the 1923 Treaty. The U.S.-Canada IJC has documented the
causal connection between discharge of untreated human waste and
typhoid, 1951 Report at 167-168. Since the beaches have had to
be closed, there is also an injury to public property, recognized
by the U.S.-Canada IJC as being within the scope of that treaty.
1965 Report, cited at Barros and Johnston, The International Law
of Pollution. 104 (1974).
There is the further injury to property represented by the
necessity of the Lower Peace Brewery's installation of sophisti-
cated water purification facilities to overcome the combined
effects of untreated discharges from both the paper mill and the
shantytown. The importance of high water quality to an exporter
of internationally celebrated beer cannot be underestimated. In
addition, the heat discharged from the reactor threatens the use
of reliably cool waters by the neighboring brewery to the extent
that cooling lagoons costing $900,000 will have to be installed.
Heat, along with sewage and chemical wastes, is recognized as a
pollutant by Section 502 of the United States Federal Water
Pollution Control Act Amendments of 1972. 33 U.S.C.A. §i362.
A rise in ambient water temperature reduces a river's capacity
for self purification, raises the toxicity of many domestic and
industrial effluents, and adversely affects the spawning and
survival of fish. Christ, "Assessment of Economic Damage Caused
by Water Pollution", 13 W.H.O. Public Health Papers 87, 97 (1962).
In short, excess-heat can cause ecological catastrophe in the
Lower Peace River.
2. Karma is responsible to New Helios for the trans-
boundary effects of this pollution even though
the wastes of the paper mill and shantytown result
from private activity.
Since Karma has waived the procedural prerequisite of ex-

haustion of local remedies, the state of Karma can be held
directly responsible under international law for violations of
the 1923 Treaty, even though the activity creating the viola-
tions was essentially private. Article II, paragraph 1 provides
that "neither State shall pollute . . .P This refers not only
to its obligation to take no action on its own part to pollute,
but also to its duty to insure that pollution which originates
within its territorial jurisdiction does not cross into New
Helios.
Support for this .interpretation can be found in both the
Treaty's object and purpose and in relevant rules of internation-
al law. For Karma to eschew pollution on its own part but
permit it by its citizens would render nugatory the object of
controlling transboundary pollution on the Peace Rivers and in
International Lake. Permitting such private pollution with
transboundary effects is neither amicable nor friendly, nor,
considering the costs that New Helios must accordingly bear,
economically cooperative. This is especially true in light of
the fact that New Helios has protested this situation to Karma
and the latter has taken no responsive action.
This interpretation finds further support in the rules of
international law applied by arbitral tribunals and international
adjudications. In the Trail Smelter case, the tribunal observed
that "under principles of international law . . . no state has
the right to use or permit the use of its territory in such a

manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein ....
35 A.J.I.L. 684 (1941). Although not pursuant to a term of the

reference, this rule received further recognition and articula-
tion in The Corfu Channel Case, /19497 I.C.J. 4; 43 A.J.I.L. 558
(1949). In that case, the Court held Albania liable to Great
Britain for damage caused by mines laid with the knowledge of
Albania. Due to Albania's control over the evidence of its know-
ledge, Great Britain was allowed "a more liberal recourse to
inferences of fact and circumstantial evidence". 43 A.J.I.L.
at 567. The Court, noting Albania's attitude before and after

the disaster and the feasibility of its observance of the area
where the mines were laid, found that Albania had knowledge of
the facts.
There is an analogous situation here. Karma has indicated
an intention to rapidly develop its Wilderness region. It is
doing so in cooperation with the WDA, which has recommended the

construction of facilities for the treatment of sewage from the
mill and shantytown. The mill company, in apparent recognition
of the problem, has promised to build modern housing for the
workers. Moreover, New Helios' diplomatic protest of July 1974,
has given Karma official notice of the transboundary effect of
the F31lution. Karma's attitude has favored unimpeded develop-
ment with no thought to social cost (e.g. living conditions of
the pulp mill workers). Under the Corfu Channel standard, there
is a clearly permissible inference of knowledge and responsibi-

lity on the part of Karma.
3. Karma has failed to cooperate and consult with
New Helios on treaty matters of mutual interest.
Article I of the 1923 Treaty provides that Karma and New
Helios "agree to cooperate and consult with one another as
appropriate on matters of mutual interest" with a view to carry-
ing out "the purposes and objectives of this Agreement". Karma
has completely failed to fulfill this obligation, most egregiously
in the case of the proposed nuclear power plant. In conjunction
with the complaints of citizens' groups, New Helios has protested
several times against the location and construction of the power
plant. Instead of cooperating on this matter of obvious mutual
interest, evidenced by the very fact of New Helios' protest,
Karma has answered with an assertion of the sovereign right to
develop in any way possible.
The long-accepted international rule that pacta sunt
servanda requires the enforcement of Karma's obligation to con-
sult or cooperate. However much a sovereign right Karma has to
develop, it must do so in the context of its other international
obligations, including prior treaty obligations. The general aim
of amity, friendship, and economic cooperation through consulta-
tion and cooperation is certainly not achieved by curt assertions
of sovereign rights. An analogous situation, the Lac Lanoux
arbitration, 62 Revue Generale de Droit International Public 79
(1958), 53 A.J.I.L. 156 (1959), found a binding obligation ex-
pressed in Article XVI of the Additional Protocol to the Treaty
of Bayonne, 56 Brit. and For. State Papers 212, 226, 229 (1865-6),
for France to consult with Spain whenever the general interests of
the parties in water utilization were involved. Similarly,
Karma's undertakings to consult and cooperate are binding in
international law.
4. There can be no question of the continuing
validity and enforceability of the 1923 Treaty.
Despite the considerable lapse of time since the 1923
Treaty came into force, there has been no fundamental change of
circumstances such as might justify the termination or suspension
of the Treaty on the grounds of clausula rebus sic stantibus.
Although noted in Article 62 of the Vienna Convention on the Law
of Treaties, supra, the principle of fundamental change of cir-
cumstances has never been officially invoked by this Court, its
predecessor, or any other international tribunal. Brierly, Law
of Nations 244 (4th ed., 1949). In fact, the present case is
closely analogous to the Case of the Free Zones of Upper Savoy
and the District of Gex, /19327 P.C.I.J., Ser.A/B, No.46, at 156-8;
2 Hudson, World Court Reports 448, 553 (1935), in which the
Permanent Court of International Justice expressly reserved the
question of the existence of this rule. There, France failed to
prove that the existence of the allegedly changed circumstance
was the basis for the parties' consent to be bound by the treaty.
Similarly, Karma can present no evidence showing that any circum-
stances which have changed since 1923 were essential bases for
the parties' consent to the treaty.
In reality, the only fundamental circumstance which has
changed is Karma's desire to develop itself "in any way possible".
This is a change of policy, not of circumstance. The attempt to
escape the obligations of the treaty is based on a desire to
avoid the cost of treating its sewage and charging the effect of
that nontreatment to New Helios. See, generally, Lissitzyn,
"Treaties and Changed Circumstances (Rebus Sic Stantibus)", 61
A.J.I.L. 895 (1967). In its official commentary to Draft Article
59 on changed circumstances, the International Law Commission
explained that it would allow rebus only for those policy changes,
such as political realignment, which both parties might prefer
to terminate. 61 A.J.I.L. 433-4 (1967). There is no such policy
change, here, however. No realignment is taking place and only
one party wishes to terminate.
B. The Release of Untreated Municipal Sewage, Raw Indus-

trial Waste, and Unmoderated Nuclear Reactor Thermal
Discharge into the Waters of an International Drainage
Basin which Causes Injury within the Territory of a
Neighboring State and Deprivation of the Beneficial
Use of Those Boundary Waters by That State is a
Violation of Customary International Law.
The customs and general principles of international law for-
bid a state and individuals resident in its territory from taking
actions which result in injury to the rights of another state.
New Helios will show that this rule is recognized in the state-
ments of sovereign nations, in decisions of international judicial
bodies, in the writings of publicists analyzing traditional state
practices, and in the provisions of modern "private" codifica-
tions of international law, and that this rule should be used in
interpreting the 1923 Treaty of Amity, Friendship, and Economic
Cooperation. Even if this Court should hold the Treaty inappli-
cable to the present case, Karma and New Helios 'are bound by the
more general but obligatory requirements of the customary inter-
national law recognized by all civilized states. 1 Hackworth,
Digest of International Law 17 (1940).
The doctrine of state responsibility for wrongs caused to
other states is long established. Lauterpacht, 1 Oppenheim's
International Law 335-8 (8th ed., 1955), hereinafter Lauter-
pacht. However, the circumstances of the present case subject
this rule of law to two new considerations. The first is that
there is an increasing disparity in wealth between the developed
and the less-developed nations and consequently special responsi-
bilities on governments of less-developed states to encourage
rapid industrialization. The second is the recent realization
that the earth's natural resources are limited, and unless pro-
tected from abuse those resources might no longer support the
needs of human civilization. The Court is-asked to balance these
two factors. They should not be viewed as in opposition to each
other; each must be given weight in the evolving legal patterns.
The United Nations Conference on the Human Environment, in
which most developing countries participated, dealt with this
very problem and declared in Principle 21 that:
States have, in accordance with the Charter of the United
Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant
to their own environmental policies, and the responsi-
bility to ensure that activities within their jurisdic-
tion or control do not cause damage to the environment
of other States or of areas beyond the limits of national
jurisdiction. (U.N. Doc.A/CONF.48/14, at 7 (1972)).
Thus the sovereign right of a nation to exploit its own resources
in accordance with its needs for development is limited by its
duty not to impose injury on its neighbors. New Helios notes
that the Stockholm Conference did not suggest what the law ought
to be, but only recognized what the "principles of international
law" require. No less is required of Karma.
In the Trail Smelter case, 35 A.J.I.L. 684 (1941), an
Arbitral Tribunal created by the United States and Canada was
asked to consider whether Canada must pay for damage in the State
of Washington allegedly caused by fumes from a privately owned
smelter on Canadian territory. Although the terms of reference
made clear that if injury were found there would be a duty to
compensate, the finding of the Tribunal and the basis for its
decision was based in the more general duty found in internation-
al law:
The Tribunal, therefore, finds . . . that under the
principles of international law, as well as the law
of the United States, no state has a right to use or
permit the use of its territory in such a manner as to
cause injury by fumes in or to the territory of another
or the properties or persons therein, when the case is
of serious consequence and the injury is established by
clear and convincing evidence. (Final Decision of
March 11, 1941; 35 A.J.I.L. 684, 716.)
Although the Tribunal did not assign damages for injury within
their terms of reference, it stated that the governments should
fix the indemnity. It held that Canada was "responsible in
international law for the conduct of the Trail Smelter . . ." and
further required that the smelter "refrain from causing any

damage through fumes in the State of Washington". 35 A.J.I.L. at
717. The Tribunal set out an injunctive regime which governed
the operation of the smelter in such a way as to prevent trans-
boundary pollution.
Similarly, Karma has allowed the privately owned pulp and
paper mill and the sewerless mill town to cause substantial
damage. Not only has it permitted the use of its territory to
the detriment of New Helios, but its government has itself caused
damage through the state-owned utility.
As in Trail Smelter, the harmful agents have been transmit-
ted through a medium that must be viewed as a resource common to
both countries. The injury has been inflicted on New Helios'
beaches and waters, on its brewing and tourist interests, and on
the increased number of persons who have suffered from typhoid.
There can be little doubt that the loss of a public drinking
water source because of noxious industrial wastes and the rise of
an often fatal disease transmitted through untreated sewage are
of serious consequence. Nor do the documented costs of addition-
al water purification facilities and cooling lagoons fail to meet
the standard of "clear and convincing evidence".
The central principle in the Trail Smelter decision, that
territoriality is not a bar to responsibility for injury caused
to others, is reaffirmed in three decisions of the International
Court of Justice: The Corfu Channel Case, /_19497 I.C.J. 41
43-A.J.I.L. 558 (1949); and the Nuclear Tests Cases, (Australia
v. France) Interim Protection /19737 I.C.J. 99, and (New Zealand
v. France) Interim Protection /9737 I.C.J. 135.
Thq Corfu Channel case arose after explosions caused by
mines in Albanian territorial waters killed British seamen and
severely damaged ships in transit through the North Corfu channel.
This Court ordered Albania to compensate for its failure to warn
the approaching warships of imminent danger. The obligation was
based
On certain general and well-recognized principles,
namely: elementary considerations of humanity, . ..
the principle of the freedom of maritime communication;
and every State's obligation not to allow knowingly its
territory to be used for acts contrary to the rights of
other States. (143 A._J.L. at 570-571) (Emphasis-added).
This decision was based in part upon a finding that Albanian
authorities' knowledge of the minefield could be fairly imputed
from the facts in spite of spirited denials. The Court reasoned:
By reason of its exclusive control, the other State,

the victim of a breach of international law, is often
unable to furnish direct proof of facts giving rise to
responsibility. Such a State should be allowed a more
liberal recourse to inferences of fact and circumstantial
evidence. This indirect evidence is admitted in all sys-
tems of law, and its use is recognized by international
decisions. It must be regarded as of special weight when
it is based on a series of facts linked together and
leading logically to a single conclusion. (43 A.J.I.L.
at 567).
The implication of this rule for the difficult problems of proof

in the present case is obvious and justified by the magnitude and
severity of the injury involved.
Most recently, in the Nuclear Test Cases, supra, this Court
was confronted with evidence that the testing of nuclear weapons
by France in its Pacific territory would result in radioactive
fallout causing injury in the territories of the applicants. The
Court granted provisional measures forbidding testing which could

cause such fallout and consequent injury. Although the Court
dissolved its original protective orders and dismissed the case

following French declarations that testing had permanently ter-
minated, it must be recognized that the protective orders show
that one nation cannot take action detrimental outside its own
territory. See Nuclear Tests (Australia v. France) Judgment of
December 20, 1974 L97±7 I.C.J. 253; and (New Zealand v. France)
Judgment of December 20, 1974 /f9747 I.C.J. 457. The orders
indicate this Court's willingness to take injunctive action to
prevent likely future injury by transfrontier propagation of
harmful agents.
Although there are not yet any international decisions re-
lating specifically to the pollution of an international river,
this Court should note the remarks of the Arbitral Tribunal
created by France and Spain to settle the Lake Lanoux case,
62 Revue Generale de Droit International Public 79-119 (1958);
53 A.J.I.L. 156 (1959). The tribunal found that it was unable
under the treaty involved to declare that France had violated
international obligations by diverting a volume of water from
the Carol River and later returning a similar volume via a tunnel
before entry into Spain. However, the Tribunal set out grounds
which, had they been argued, would have justified a finding of
injury:
It could have been argued that the works would bring
about a definitve pollution of the waters of the Carol
or that the returned waters would have a chemical com-
position or a temperature or some other characteristic
which would injure Spanish interests. (53 A.J.I.L. at 160).
Thus the very injuries complained of by New Helios have been
found to violate the international obligation that an upper
reparian state refrain from inflicting harm on a lower riparian.
See Lauterpacht, at 474-475.
This same principle has been recognized by the highest
Italian appellate court in Societe Energie Electrique du Littoral
M~diterraneen v. Compagnia Imprese Elettriche Liguri, Judgment of
February 13, 1939, L-938-19407 Ann.Dig. 120-122 (No.47)(Corte di
Cassazione); 3 Whiteman, Digest of International Law 1050.
This rule also finds support in the traditional doctrine of
sic utere tuo ut non alienum laedas (so use your own property as
not to injure your neighbor). Blackstone recognized this as the
essence of the common law of nuisance, noting as an example the
poisoning of a water course. 3 Blackstone, Commentaries on the
Laws of England 218 (Chitty ed., 1827). Its importance in inter-
national law is stated in Lauterpacht, at 346-347:
The maxim, sic utere tuo ut non alienum non laedas, is ap-
plicable to relaions of States no less than to those of
individuals; . .. it is one of those general principles
of law recognized by civilized States which the Permanent
Court is bound to apply . . . (footnotes omitted).
Quincy Wright classed the principle with the obligations of a

government to abstain from and prevent aggression and subversive
intervention launched from its territory. Wright, "Subversive
Intervention", 54 A.J.I.L. 521, 528 (1960). He includes in this
classification river pollution and diversion, as well as indust-
rial air pollution, atmospheric nuclear tests, and obstructions
to navigation as possible violations of sic utere tuo. Certainly
the transmission of typhoid contagion and toxic pulp waste are
violations.
The Helsinki Rules, International Law Association, Report
of the Fifty-Second Conference 484 et seq. (1966) , which set
forth the "general rules of international law applic-
able to the use of the waters of an international drainage
basin", Article I, state that when pollution originating in the
territory of one state causes substantial injury in another, the
doctrine of sic utere tuo demands that new or increased pollution
be abated by reasonable measures, Article X. Pollution is "any
detrimental change resulting from human donduct in the natural
composition, content, or quality of the waters of an internation-
al drainage basin", Article IX. The waters of International Lake
and the Peace River have obviously been polluted under this de-
finition. Although pollution must normally be consistent with
the "equitable utilization" rules in Chapter 2 of the Rules and
must be balanced with the relevant factors in Article V, the
obligation to abate existing pollution by "reasonable measures"
becomes an absolute duty when human life is threatened. Comment
(e) to Article X. Typhoid undoubtedly threatens human life.
Indeed, Illustration 2 to Article XI specifies that typhoid
caused by untreated upstream urban-sewage requires abatement and
reasonable measures to prevent substantial injury.
Comment (c) to Article X states "an injury is considered
'substantial' if it materially interferes with or prevents
a
reasonable use of the water". New Helios strongly urges that
use as municipal drinking water is reasonable, and that the dis-
charge of industrial effluent and untreated sewage by Karma is
preventing such use in violation of Article X(b).
Finally, Article XXIX of the Helsinki Rules imposes an obli-
gation on a state to give "notice of any proposed construction or
installation which would alter the regime of the basin in a way
which might give rise to a dispute" concerning another state's
legal rights and interests when those interests may be "sub-
stantially affected" so as to provide reasonable time for "an
assessment of the probable effect". Failure to give such notice
deprives the project of the preferential status of an existing
use normally given to reasonable and equitable uses under
Articles V(d) and VIII. Karma gave no notice of either planning
or construction of the large nuclear plant, and the plant
should, accordingly, be denied that priority.
One European study suggests that "when the injury liable to
be caused is serious and lasting, development works may only be
undertaken under a prior agreement". Sevette, Legal Aspects of
Hydro-Electric Development of Rivers and Lakes of Common Inter-
est, U.N. Doc.E/ECE/136, at 211 (1952); 3 Whiteman, Digest of
International Law 931. New Helios has already pointed out the
serious consequences of the thermal discharge into its terri-
torial river waters. Relief ought to be granted for this breach
of the duty of co-riparians to consult. Relations between neigh-
boring states require the greatest restraint and good faith.
Karma has not only a treaty obligation but a customary legal duty
to consult and cooperate with New Helios on the placement and
operation of the nuclear power plant. See Andrassy, "Les Rela-
tions Internationales de Voisinage", 79 Recueil des Cours II 72,
169-171 (1951).
In sum, the duty of a state to refrain from acts within its
territory which cause injury in that of another does not abso-
lutely prohibit the transmission of any effects to neighboring
territory. But when there is certain injury, this Court is
bound by the principles of customary international law tol find
Karma responsible. This responsibility for the injurious con-
sequences of a state's action flows directly from the right of
sovereign action asserted by Karma.
C. Karma's Claimsupon the Beneficial Uses of these

International Waters Are Not Acceptable as an
Arguably Reasonable and Equitable Share of those
Uses, even Considering its Special Needs as a
Developing State.
Chapter 2 of the Helsinki Rules enunciates the principle
that each basin state within its own territory has a right "to a
reasonable and equitable share in the beneficial uses" of an
international drainage basin as established by a balancing of
several co-equal "relevant factors". Implicit in this statement
are two important yet conflicting considerations - first, that
each state is sovereign in its territory and territorial waters;
and second, that an international drainage basin is a shared
resource that physically interrelates the two territories in such
a way that any action in one territory necessarily affects the
other. The negative and protective aspect of this conflict is
expressed by the doctrine of sic utere tuo; the affirmative and
productive aspect is expressed by the doctrine of equitable
utilization. Both require an ultimate recognition of a community
of interests and a balancing of the rights of all members of the
community. See Smith, The Economic Uses of International Rivers
150-153 (1931); and the International Commission of the River
Oder Case /_19297 P.C.I.J., Ser.A, No.23, at 27. This approach
to this
is the direct opposite of that which Karma has adopted
Doctrine" -
point, a resurrection of the long dead "Harmon
in other states.
absolute sovereignty without regard for effects
"relevant
Although Article V of the Helsinki Rules suggests
setting priorities or
factors", the Rules carefully refrain from
this case, New
assigning weights to those factors.. In deciding
these competing
Helios believes that the Court's approach to
Court of Germany:
factors was best defined in 1927 by the Supreme
caused to the
One must consider not only the absolute injury
the advantage
neighboring State, but also the relation ofother. (W~irttem-
gained by one to the injury caused to the
berg v. Baden, /1927-19217 Ann.Dig. 128, 131(No.86)).
in the North Sea
An identical approach was taken by this Court
beneficial use
Continental Shelf Case, /9697 I.C.J. 3, 47. A
it must not, on
need not be the most productive possible use but
balance, be injurious.
1. None of the Present or Proposed Uses by Karma

Meet the Standard of Equitable Utilization as
set forth in Articles IV through XIII of the
Helsinki Rules.
urban set-
First, the discharge of raw human sewage from an
of the
tlement of 20,000 people directly threatens the lives
citizens of New Helios. The use of water for domestic purposes
where no alternative source is available is per se reasonable.

purification
New Helios has already invested large sums in water
have
facilities to protect its citizens; yet typhoid incidents
human life is
risen. No citation is necessary to establish that
process.
the one value of compelling importance in this balancing
Nor is the danger limited to the present:
No nation can afford to neglect water pollution pre-
vention; without it, the nation will eventually be
confronted with a far more onerous burden to secure
wholesome and adequate supplies of water . . . If the
less developed countries embark now on suitable pollu-
tion prevention policies they may avoid the costly
errors made in the past by the more developed
countries. (McNaughton, "The Financial and Economic
Aspects of Water-Pollution Prevention", 13 W.H.O.
Public Health Papers 101, 114-115 (1962)).
Second, although there is undoubtedly great economic bene-
fit accruing to the people of Karma's wilderness region from the
use of the Peace River as an open and free sewer, this economic
"externality" imposes serious harm on those in New Helios who
are also economically dependent upon the common waters. Indust-

rial wastes have rendered the waters unpotable and have over-
burdened both municipal and inudstrial water purification systems.
In addition, the water is no longer suitable for recreational
uses. This Court has long recognized "economic interests pecu-
liar to a region" . . . "clearly evidenced by a long usage".
Fisheries Case, Judgment of December 18, 1951, /19517 I.C.J. 116,

133. The Court must now strike a balance between such interests.
A W.H.O. study suggests how best to draw the balance:
Removal of pollutants from an industrial effluent
before it is discharged into a body of water is
often simpler and more reliable than an attempt
to remove them from water intended for domestic
use taken from some other point in the same body
of water. (World Health Organization, Inter-
national Standards for Drinking Water 13 (3rd.
ed., 1971)).
Third, Karma's nuclear power plant has, without notice, be-
gun to use the Lower Peace as a receptacle for its thermal wastes.
The danger of such heat has already been noted. The social and
economic needs of Karma's population must be balanced against
other considerations. The failure to consult New Helios about
the placement of the plant in accordance with both the 1923
Treaty and Article XXIX of the Helsinki Rules ought to deprive
the plant of the status of an existing use. There has been no
showing that an alternative placement would not have equally
satisfied Karma's needs without harming New Helios. Finally,
cooling towers powered by the electric plant itself could insure
that Karma's needs were met without causing substantial injury to
the territory of New HelioS.
After weighing the factors cited above, this Court should
declare that Karma's claims do not constitute a reasonable and
equitable share of the basin's beneficial uses. Accordingly,
the Court must assess damages or impose the equitable relief
sought by New Helios.
2. Karma As an Equal and Sovereign State Must Be
Responsible for Injurious Conduct to the Same
Degree as Other States.
Although Article V(e) of the Helsinki Rules recognizes "the
economic and social needs of each basin state" and although the
special needs of developing states should be recognized by the
international community, international law does not recognize a
"double standard" for the rights and responsibilities of such
states. It is true that the developed states have recognized a
special responsibility to include developing states in any agree-
ment extending trade and economic concessions. However, this re-
sponsibility to assist developing nations cannot be twisted into
a duty to suffer substantial harm at the hands of Karma.
Developing countries have asserted the privilege of deter-
mining environmental standards in light of their own national
economic development priorities, insisting that pollution stan-
dards applicable in developed states are inappropriate for
developing states. U.N. Conference on the Human Environment,
Principle 23, U.N. Doc.A/CONF.48/14 (1972), at 7. New Helios can
accept this assertion but insists this is not an unqualified right
or pvilege and points to Principles 21 and 22 and Recommendation
103(a) and (e) of that Conference. Recommendation 103(e) at 56
states that:
all countries agree that uniform environmental
standards should not be expected to be applied
universally by all countries . . . except in
those cases where environmental disruption may
constitute a concern to other countries.
According to Principle 21, states do have the sovereign right to
exploit natural resources pursuant to their own environmental
policies but subject to the obligations of state responsibility
not to inflict harm on others. Principle 22 anticipates the need
for a legal framework in which problems concerning "compensation
for victims of pollution and other environmental damage caused by
activities within the jurisdiction or control of such States to
areas beyond their jurisdiction" can be solved. An international
double standard for liability-creating conduct is not contempla-
ted by the Declaration. Recommendation 103(a) states: "/A7s a
general rule, no-country should solve or disregard its environ-
mental problems at the expense of other countries". Id., at 55.
Clearly, if Karma has not chosen simply to disregard an important
human and environmental problem, then it has certainly sought a
solution at the expense of New Helios.
3. Karma Has Abused its Right to Use the River in
a Reasonable Manner.
The common thread in both the doctrine of state responsi-
bility and the doctrine of equitable utilization is that equity
ought to be done among those who are equals. But whatever may be
the rights which have accrued to Karma by an equitable utiliza-
tion of the Peace River basin, Karma has nevertheless abused them.
There is a community of interests in the river and its waters
which requires absolute good faith.
The principle of good faith which governs international
relations controls also the exercise of rights by States.
The theory of abuse of rights (abus de droit) recognized
in principle both by the Permanent Court of International
Justice and the International Court of Justice is merely
an application of this principle to the exercise of rights.
(Bin Cheng, General Principles of Law as Applied by Inter-
national Courts and Tribunals, 121-123 (1953); citations
omitted.)
Karma is responsible for existing and future injuries to New
Helios under both the theory of state responsibility and the
theory of abuse of the rights of equitable utilization.
II.
KARMA'S RESPONSIBILITY TO NEW HELIOS FOR DAMAGE DUE TO TRANS-

BOUNDARY POLLUTION GIVES RISE TO AN OBLIGATION BY KARMA TO
MAKE REPARATIONS.
Karma's violations of obligations under the 1923 Treaty and
customary rules of international law obligate it to make repara-
tion to New Helios for the wrongs done. 1 Lauterpacht 352. In
the Case of the Factory at Chorzow /_928.7 P.C.I.J. Ser.A, No.17,
at 29, hereinafter Chorz6w, the Court found the obligation
to make reparations "a general principle of international law,
and even a general conception of law . . . ." The most common
form of reparation is an indemnity, or payment of money damages.

Chorzow at 28. If the Court is unable to determine the amount of
damages it may order further proceedings on the subject, Corfu
Channel, supra, at 574; and it may indicate provisional measures
under Article 41 of its statute "to preserve the respective
rights of either party" pending the final decision. Additional-
ly the Court has full power to order "equitable" remedies, as in
Trail Smelter. See Hudson, J., Dissent in The Diversion of
Waters of the Meuse, /_9377 P.C.I.J. Ser.A/B, No.70, at 4, 76.
New Helios seeks indemnification for the injuries inflicted
on its citizens due to typhoid caused by Karma's untreated
sewage, United Mexican States (Mallen) v. United States, General
Claims Comm'n., Opinion of Commissioners 254 (1927); and for the
economic loss caused to owners of beachfront property and to the
Lower Peace Brewery, the value of whose property was reduced.
Trail Smelter, Decision of 1938, 33 A.J.I.L. 200 (1939).
New Helios also requests the Court to establish a comprehen-
sive permanent regime including: primary treatment of human sewage
to make the water safe for bathing, lessening of the chemical
wastes of the pulp mill to the point that the existing purifica-
tion facilities of the capital and the brewery can make up any
necessary difference in water quality, Trail Smelter, 35 A.J.I.L.
684 (1941); and an order that the present thermal output of~the
nuclear plant must not be exceeded until cooling towers are built
or Karma can prove that ecological harm will not be inflicted.
Nuclear Tests Cases, supra.
Until and unless Karma establishes the permanent regime so
ordered, it should also indemnify New Helios for future damage,
Trail Smelter, 35 A.J.I.L. 684 (1941), including the documented
costs of new water-treatment facilities for the capital
($2,000,000) and brewery ($900,000), or the costs of finding a
new source of water for the latter. The Court may designate
these costs as economic rents or royalties for using a natural
resource. If Karma is unable to pay, the Court may order payment
in kind, e.g. nuclear power, for the use of the river. Sevette,
supra.
If the Court feels it has insufficient facts to establish a
comprehensive permanent regime, it may invoke provisional meas-
ures under Article 41 of the Statute. See Case Concerning the
Polish Agrarian Reform and the German Minorities, Interim Meas-
ures of Protection, LT932.7 P.C.I.J., Ser.A/B, No.58, at 175.
To protect rights against continued pollution, the Court may
order the creation of an ad hoc board of supervision, as was done
in the Anglo-Iranian Oil Case, Order of July 5, 1951, /19517
I.C.J. Reports, at 89.
PRAYER FOR RELIEF
New Helos respectfully requests the Court to find that Karma

has violated its obligations under the 1923 Treaty and general
principles of customary international law, and to order Karma to
indemnify New Helios and abate its pollution, or alternatively,
to impose the recommended provisional measures.
'APPENDIX o
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The Peace River Basin Case,

Best Written Memorial

National Award University of Texas School of Law #26

THE STATE OF NEW HELIOS,

THE STATE OF KARMA,

COUNTER-MEMORIAL FOR THE RESPONDENT

George L. Flint, Jr.

Index of Authorities .......... iii

Statement of Facts .............. . 2

Summary of Argument . . . ......... ..... 5

Argument and Authorities .................. 6

I. KARMA'S ACTS HAVE NOT BREACHED -THE 1923 TREATY.

A. The Treaty objectives of amity, friendship,

B. The ordinary meaning of the Treaty permits

C. The ordinary meaning of the Treaty permits

II. THE DISCHARGE FROM THE PAPER MILL AND NUCLEAR

A. . Under the principle of state sovereignty

B. The principle of equitable utilization per-

1.- Purification expenses incurred by New

3. Future expenditures for water cooling

B. No future restrictions on Karma's conduct

1; The 1923 Treaty contemplates no prohi-

Conclusion . ........ . . . .. . . . . . ..... 29

Certificate ............ ........... 30

Treaty between the Dominican Republic and Haiti, 105

Treaty between Germany and Lithuania, 89 L.N.T.S. 337

Treaty Relating to Boundary Waters and Questions Aris-

U.N. CHARTER, art. -55, para. a .............. ...... 6

Certain German Interests in Polish Upper Silesia, [1925]

Chorzow Factory Case (Indemnities), [1927] P.C.I.J.,

Chorzow Factory Case (Jurisdiction), [1927] P.C.I.J.,

Chorzow Factory Case (Merits), (1928] P.C.I.J., ser. A,

Corfu Channel Case (Merits), [1949] I.C.J. 4 . .......... 22

Denunciation of the Treaty of 1865 Case, [1927] P.C.I.J.,

Fisheries Case (United Kingdom v. Norway), [1951] I.C.J.

Fisheries Jurisdiction Case (Federal Republic of Germany

Fisheries Jurisdiction Case (Jurisdiction), [1973]

Fisheries Jurisdiction Case (United Kingdom v. Iceland)

Maninat Case (1905), Report of the French-Venezuelan

Mavrommatis Jerusalem Concessions Case, [1925] P.C.I.J.,

Responsibility of Germany for Acts Committed after

S.S. Lotus Case, [1927] P.C.I.J., ser. A, No. 10 . 11, 14, 15

Trail Smelter Arbitration, 3 U.N.R.I.A.A. 1905

Treatment of- Polish Nationals in Danzig Case, [1932]

United States-Germany Mixed Claims .Commission Admin-

United States Nationals in Morocco Case; [1952]

Treatises and Digests

F. BERBER, RIVERS IN INTERNATIONAL LAW (1959) ........ ... 16

H. BRIGGS, THE LAW OF NATIONS (1952) .............. 14, 15

B. CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY

THE INTERNATIONAL LAW OF POLLUTION (J. Barros & D.

H. MALMGREN, INTERNATIONAL ECONOMIC PEACEKEEPING IN

A. McNAIR, LAW OF TREATIES (1961)....... ........... .. 11

G. OHLIN-, FOREIGN AID POLICY RECONSIDERED (1966) .. . . . . 18

1 L. OPPENHEIM, INTERNATIONAL LAW (8th ed. H. Lauter-

2 S. ROSENNE., THE LAW AND PRACTICE OF THE INTERNATIONAL

I. TAYLOR & J. KNOWELDEN, PRINCIPLES OF EPIDEMIOLOGY

W. VERWEY, ECONOMIC DEVELOPMENT., PEACE AND INTERNATIONAL