GJC8011 (R)

PROF. N. R.
MADHAVA MENON GLOBAL MOOTING COMPETITION, 2023
TC: GJC8011 (R)
PROF. N. R. MADHAVA MENON GLOBAL MOOTING COMPETITION, 2023
15TH – 18TH FEBRUARY, 2023
IN THE INTERNATIONAL COURT OF JUSTICE

UNDER ARTICLE 36(2) OF THE STATUTE OF THE ICJ
IN THE MATTER OF
REPUBLIC OF TAN
[APPLICANT]
V.
REPUBLIC OF TOTS
[RESPONDENT]
UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE

INTERNATIONAL COURT OF JUSTICE
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
MEMORANDUM ON BEHALF OF THE RESPONDENT 1 | PAGE

TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................ I - II
LIST OF ABBREVIATIONS ……………….………………..……….……..………..…. III - V
INDEX OF AUTHORITIES ..................................................................................... VI – XIX
STATEMENT OF JURISDICTION ……………………………..……..……..………...…... XX
STATEMENT OF FACTS ....................................................................................XXI - XXII
STATEMENT OF ISSUES ........................................................................................... XXIII
SUMMARY OF PLEADINGS ............................................................................ XXIV - XXV
PLEADINGS............................................................................................................... 1 - 29
ISSUE 1: W HETHER THE PRESENT CLAIM IS MAINTAINABLE BEFORE ICJ?...............1- 6
[A] THE ICJ HAS NO JURISDICTION OVER THE PRESENT DISPUTES………………………..1
[B] TOTS RECOGNIZES ICJ JURISDICTION ON CONDITION OF RECIPROCITY…………..…..2
[C] COURT LACKS JURISDICTION UNDER CBD, PARIS AGREEMENT, AND UNFCCC……..3
[D] THE STATE HAS EXCLUSIVE JURISDICTION TO DETERMINE VIOLATIONS IN CASE OF
CONFLICT UNDER PRIVATE INTERNATIONAL LAW ……………………………………..…..4
[E] THE COMPANY IS NOT STATE FOR DETERMINING ITS LIABILITY UNDER ICJ………....5
ISSUE 2: W HETHER DID BARGIN HAVE ANY RESPONSIBILITY FOR ENSURING HUMAN
RIGHTS AND THE PROTECTION OF ENVIRONMENT ? WHETHER BARGIN CAN BE HELD
ACCOUNTABLE FOR ECOCIDE OR ANY OTHER INTERNATIONAL HARM UNDER
INTERNATIONAL LAW.............................................................................................. . 6 - 12
[A] COMPANY BARGIN LLC HAS NOT VIOLATED HUMAN RIGHTS TO THE CIVILIANS ……6
[B] BARGIN HAS NO LIABILITY FOR VIOLATION OF ECOCIDE IN INTERNATIONAL LAW…10
ISSUE 3: WHETHER TOTS COULD CONFISCATE BARGIN AS IT DID UNDER THE POWERS
GIVEN UNDER THE ORDINANCE AND WHETHER THE PRESIDENT OF BARGIN COMPANY
WAS LAWFULLY DETAINED, AND WHETHER HIS SUBSEQUENT DENIAL OF HIS
MEMORANDUM ON BEHALF OF THE RESPONDENT I | PAGE

DIPLOMATIC RIGHTS WAS JUSTIFIED. I N THE EVENT THEY ARE J USTIFIED DO THEY
DESERVE PAYMENT OF COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES I N
INTERNATIONAL LAW?........................................................................................... 13 - 19
[A] CONFISCATION OF B ARGIN PROPERTY BY REPUBLIC OF TOT IS LEGALLY JUSTIFIED ..13
[B] THE PRESIDENT OF BARGIN WAS LAWFULLY DETAINED ………………………….....15
[C] THE SUBSEQUENT DENIAL OF DIPLOMATIC RIGHTS WAS JUSTIFIED………………...18
[D] DENIAL OF COMPENSATION OR APOLOGY OR ANY OTHER REMEDY IS JUSTIFIED......18
ISSUE 4: WHETHER THERE EXISTS ANY RESPONSIBILITY FOR TAN TO PROVIDE
REFUGEE STATUS TO T HE CITIZENS O F TOTS?...................................................... 19 - 23
[A] ACT OF TAN IS AGAINST THE INTERNATIONAL HUMAN RIGHT LAW…………………19
[B] REPUBLIC OF TAN IS THE SIGNATORY OF THE UNITED NATION……………………..20
[C] ACTION OF VIOLATES THE PROVISION OF ICCPR………………………………...….20
[D] REPUBLIC OF TAN FAILS TO ACT AS PER INTERNATIONAL OBLIGATION………….…21
[E] REPUBLIC OF TAN FAILED TO ACT PER THE NORMS OF CIVILIZED S TATE………….21
[F] PRINCIPLE OF NON-REFOULEMENT AND OBLIGATION OF ERGA OMNES APPLIES..….22
[G] REFUGEE CONVENTION IS APPLICABLE EVEN IN ABSENCE OF DOMESTIC LAW….….22
ISSUE 5: WHETHER T OTS IS RESPONSIBLE FOR ENVIRONMENTAL HARM DONE T O THE
COASTAL AND CORAL REEF-RICH REGION OF THE REPUBLIC OF GRUMP?......... 23 - 29
[A] TOTS HAS MET THE STANDARD OF DUE DILIGENCE………………………………....24
[B] TOTS HAS CONDUCTED ITSELF IN CONSISTENT WITH INTERNATIONAL LAW IN
EXPLOITING ITS OWN NATURAL RESOURCES……………………………………………..26
[C] TOTS IS NOT LIABLE UNDER THE “FAULT LIABILITY ” REGIME……………………...28
[D] “STRICT LIABILITY” REGIME DOES NOT APPLY AGAINST TOTS IN INSTANT CASE…..28
[E] TOTS COMPLIED WITH THE PRECAUTIONARY PRINCIPLES …………………………...28
PRAYER .................................................................................................................. XXVI
MEMORANDUM ON BEHALF OF THE RESPONDENT II | PAGE

LIST OF ABBREVIATIONS
SERIAL NO. ABBREVIATION EXPANSIONS

1. § SECTION
2. ¶ PARAGRAPH NUMBER
3. A.C. APPEAL CASES
4. AHRLR AFRICAN HUMAN RIGHTS LAW REVIEW
5. AIR ALL INDIA REPORTER
6. AJIL AMERICAN JOURNAL OF INTERNATIONAL LAW
7. AMEND. AMENDMENT
8. APP. APPLICATION
9. ARB. ARBITRATION
10. ARSIWA ARTICLES ON THE RESPONSIBILITY OF STATES
FOR INTERNATIONALLY WRONGFUL ACTS
11. ART. ARTICLE
12. BYIL BRITISH YEARBOOK OF INTERNATIONAL LAW
13. CBD CONVENTION ON BIOLOGICAL DIVERSITY
14. CCPR CENTRE FOR CIVIL AND POLITICAL RIGHTS
15. CESCR COMMITTEE ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
16. CH. CHAPTER
17. CIL CUSTOMARY INTERNATIONAL LAW
18. CO. COMPANY
19. COMM. COMMENTARY
20. CONST. CONSTITUTION
21. CUP COLUMBIA UNIVERSITY PRESS
22. DOC. DOCUMENT
23. EC EUROPEAN COURT
24. ECHR EUROPEAN COURT OF HUMAN RIGHTS
25. ECJ EUROPEAN COURT OF J USTICE
26. ED. EDITION
MEMORANDUM ON BEHALF OF THE RESPONDENT III | PAGE

27. EEZ EXCLUSIVE ECONOMIC ZONE

28. EHRR EUROPEAN HUMAN RIGHTS REPORTS
29. EIA ENVIRONMENTAL IMPACT ASSESSMENT
30. FET FAIR AND EQUITABLE TREATMENT
31. G.A. GENERAL ASSEMBLY
32. GAOR GENERAL ASSEMBLY OFFICIAL RECORDS
33. HON’BLE HONOURABLE
34. HRC HUMAN RIGHTS COMMITTEE
35. INTERNATIONAL CENTRE FOR SETTLEMENT OF
ICSID INVESTMENT DISPUTES
36. INTERNATIONAL CRIMINAL TRIBUNAL FOR THE
ICTY FORMER YUGOSLAVIA
37. IACTHR INTER-AMERICAN COURT ON HUMAN RIGHTS
38. ICCPR INTERNATIONAL COVENANT ON C IVIL AND
POLITICAL RIGHTS
39. ICERD INTERNATIONAL CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL
DISCRIMINATION
40. ICESCR INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
41. IL INTERNATIONAL LAW
42. ILC INTERNATIONAL LAW C OMMISSION
43. ILM INTERNATIONAL LEGAL MATERIALS
44. IMS INTERNATIONAL MINIMUM STANDARD
45. INT. INTERNATIONAL
46. INT’L INTERNATIONAL
47. ITLOS INTERNATIONAL TRIBUNAL FOR THE LAW OF
THE SEA
48. LLC LIMITED LIABILITY COMPANY
49. LTD. LIMITED
50. NDC NATIONALLY DETERMINED CONTRIBUTIONS
MEMORANDUM ON BEHALF OF THE RESPONDENT IV | PAGE

51. OHCHR OFFICE OF THE UNITED NATIONS HIGH

COMMISSIONER FOR HUMAN RIGHTS
52. ORS. OTHERS
53. P./PP PAGE(S)
54. PARA/PARAS PARAGRAPH(S)
55. PCIJ PERMANENT COURT OF INTERNATIONAL JUSTICE
56. PM PRIME MINISTER
57. QB QUEEN’S BENCH
58. REP. REPORT
59. RES. RESOLUTION
60. REV. REVIEW
61. S.C. SUPREME COURT
62. SCC SUPREME COURT CASES
63. SUPP. SUPPLEMENT
64. U.N. UNITED NATION
65. U.N.T.S. UNITED NATIONS TREATY SERIES
66. U.S. SC SUPREME COURT OF THE UNITED S TATES
67. UDHR UNIVERSAL DECLARATION OF HUMAN RIGHTS
68. UN UNITED NATIONS
69. UNCLOS UNITED NATIONS CONVENTION O N THE LAW OF
THE SEA
70. UNFCCC UNITED NATIONS FRAMEWORK CONVENTION ON
CLIMATE CHANGE
71. UNGA UNITED NATIONS GENERAL ASSEMBLY
72. UNHCR UNITED NATIONS HIGH COMMISSIONER FOR
REFUGEES
73. UNHRC UNITED NATIONS HUMAN RIGHTS COUNCIL
74. V./VS. VERSUS
75. VCLT VIENNA CONVENTION ON THE LAW OF TREATIES
76. VOL. VOLUME
77. WLR WEEKLY LAW REPORTS
MEMORANDUM ON BEHALF OF THE RESPONDENT V | PAGE

INDEX OF AUTHORITIES
I. INTERNATIONAL AND NATIONAL LEGAL INSTRUMENTS
SERIAL I. INTERNATIONAL AND NATIONAL LEGAL INSTRUMENTS PG. N O.

NO.
1. CHARTER O F ECONOMIC RIGHTS AND DUTIES OF STATES O F 6, 7 & 14

1974
2. CONVENTION ON BIOLOGICAL DIVERSITY, 1992 3 & 14
3. CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED 14

SPECIES OF WILD FAUNA AND FLORA, 1973
4. CONVENTION ON POLITICAL ASYLUM, 1933 5
5. CONVENTION ON THE P REVENTION OF MARINE POLLUTION BY 1

DUMPING OF WASTES AND OTHER MATTER, DEC. 29, 1972
6. CONVENTION ON WETLANDS OF INTERNATIONAL IMPORTANCE 27

ESPECIALLY AS WATERFOWL HABITAT, 1971
7. CONVENTION RELATING TO THE STATUS OF R EFUGEES, 1951 20, 21 & 23
8. DECLARATION OF THE UNITED NATIONS CONFERENCE ON THE 26

HUMAN ENVIRONMENT, 1972
9. DECLARATION ON PRINCIPLES OF INTERNATIONAL LAW 14

CONCERNING FRIENDLY RELATIONS AND COOPERATION AMONG
STATES IN ACCORDANCE WITH THE CHARTER OF THE UNITED
NATIONS, A DOPTED B Y THE GENERAL ASSEMBLY ON 24
OCTOBER, 1970
10. DRAFT ARTICLE ON “CONDUCT OF AN INSURRECTIONAL OR 12

OTHER MOVEMENT”, 2001
MEMORANDUM ON BEHALF OF THE RESPONDENT VI | PAGE

11. DRAFT ARTICLES ON RESPONSIBILITY OF STATES FOR 12

INTERNATIONALLY WRONGFUL ACTS, 2001.
12. DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES, 1949 18
13. DRAFT NORMS ON THE RESPONSIBILITIES OF TRANSNATIONAL 6

CORPORATIONS AND OTHER BUSINESS ENTERPRISES WITH
REGARD TO HUMAN RIGHTS, UN ECONOMIC AND SOCIAL
COUNCIL OF 26 AUGUST 2003.
14. ENERGY CHARTER TREATY, 16 APRIL 1998 13
15. EUROPEAN CONVENTION ON HUMAN RIGHTS, 1950 16
16. UNIVERSAL DECLARATION OF HUMAN RIGHTS , 1948 17
17. GENERAL A GREEMENT ON TRADE IN SERVICES, 1995 14
18. ICJ STATUTE, 2000 17
19. INTERNATIONAL CONVENTION ON C IVIL LIABILITY FOR OIL 17

POLLUTION DAMAGE, 1992
20. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 15, 20 & 21

1966
21. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND 11, 17 & 21

CULTURAL RIGHTS, 1966
22. INTERNATIONAL LAW COMMISSION, DRAFT ARTICLES ON 14

RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL
ACTS, 2001
23. JOHANNESBURG DECLARATION ON SUSTAINABLE DEVELOPMENT 9

OF 2002
MEMORANDUM ON BEHALF OF THE RESPONDENT VII | PAGE

24. MINISTRY OF ENVIRONMENT AFFAIRS, “STOCKHOLM-50”, 2-3 10

JUNE 2022
25. OECD: GUIDELINES FOR MULTINATIONAL ENTERPRISES , 9

REVISION 2000
26. PREVENTION OF TRANSBOUNDARY HARM FROM HAZARDOUS 24

ACTIVITIES, 2001
27. PROTOCOL RELATING TO THE STATUS OF R EFUGEES, 1967 20 & 22
28. PROTOCOL TO THE C ONVENTION ON THE PREVENTION OF 1

MARINE POLLUTION BY DUMPING OF WASTES AND OTHER
MATTER, NOV. 7, 1996
29. REPORT OF THE INTERNATIONAL LAW COMMISSION ON THE 24

WORK OF ITS FIFTY-THIRD SESSION, 2001
30. REPORT OF THE INTERNATIONAL LAW COMMISSION, UN GAOR, 24

49TH SESSION, 1994
31. RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT , 1992 11
32. UN DECLARATION ON THE HUMAN ENVIRONMENT, 1972 14 & 17
33. UN GENERAL ASSEMBLY, DRAFT DECLARATION ON RIGHTS AND 18

DUTIES OF STATES, 1949
34. UN GENERAL ASSEMBLY, PARIS AGREEMENT , DECEMBER 2015 4
35. UN GENERAL ASSEMBLY, ROME STATUTE OF THE 5

INTERNATIONAL CRIMINAL COURT, 17 TH JULY 1998
36. UN GENERAL ASSEMBLY, UNITED NATIONS FRAMEWORK 4

CONVENTION ON CLIMATE CHANGE, 21ST MARCH 1994
MEMORANDUM ON BEHALF OF THE RESPONDENT VIII | PAGE

37. UNCTAD WORLD INVESTMENT REPORT 1994 (NEW YORK AND 7

GENEVA: UNITED NATIONS, 1994)
38. UNESCO DECLARATION ON CULTURAL DIVERSITY, 2001 17
39. UNESCO DECLARATION ON THE RESPONSIBILITIES TOWARDS 14

FUTURE GENERATIONS , 1997
40. UNITED NATION CODE OF CONDUCT ON TRANSNATIONAL 8

CORPORATIONS , 1983
41. UNITED NATION HUMAN RIGHTS COMMITTEE, 1999 16
42. UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT 24

AT STOCKHOLM, 1972
43. UNITED N ATIONS DECLARATION ON THE RIGHT TO 17

DEVELOPMENT, 1986
44. UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS 17

PEOPLES, 2007
45. UNITED NATIONS , STATUTE OF THE INTERNATIONAL C OURT OF 1, 2 & 3

JUSTICE, 18TH APRIL 1946
46. UNITED NATIONS, VIENNA CONVENTION ON CONSULAR 18

RELATIONS , 1963
47. UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN, 21

1980
48. UNIVERSAL DECLARATION OF HUMAN RIGHTS, 10TH DECEMBER 10, 17 & 21

1948
49. WORLD CHARTER FOR NATURE, 1982 14
MEMORANDUM ON BEHALF OF THE RESPONDENT IX | PAGE

50. WORLD HEALTH ORGANIZATION, 2004 29
51. WORLD HERITAGE CONVENTION, 1972 14
II. LIST OF CASES

❖ ICJ AND THE PCIJ CASE
SERIAL CASE NAME CITATION PG. N O.

NO.
1. AHMADOU SADIO DIALLO (REPUBLIC OF (2012) ICJ REP 324. 16

GUINEA V. DEMOCRATIC REPUBLIC OF THE
CONGO)
2. ARMED ACTIVITIES ON THE TERRITORY OF (2005) ICJ REP 168. 3

CONGO (D EMOCRATIC REPUBLIC V.
UGANDA)
3. BARCELONA TRACTION CASE (B ELGIUM V. 3 I.C.J. (1970). 12, 21,

SPAIN) 22, 26 &
27
4. CASE CONCERNING APPLICATION OF THE (2007) ICJ 2 27

CONVENTION ON THE PREVENTION AND
PUNISHMENT OF THE CRIME OF GENOCIDE
(BOSNIA-HERZEGOVINA V . YUGOSLAVIA)
5. CASE CONCERNING EAST TIMOR 1995 I.C.J. 91 26, 27

(PORTUGAL V. AUSTRALIA)
6. CORFU CHANNEL CASE (UNITED KINGDOM 1949 I.C.J. 4 15, 25 &

OF GREAT BRITAIN V. ALBANIA) 28
7. FISHERIES JURISDICTION CASE (SPAIN V. I.C.J. REPORTS 4

CANADA) 1998
MEMORANDUM ON BEHALF OF THE RESPONDENT X | PAGE

8. GABČÍKOVO-NAGYMAROS PROJECT (1997) ICJ REP 7 16, 17

(HUNGARY V. SLOVAKIA)
9. LEGALITY OF THE THREAT OR USE OF I.C.J. 226 (1996) 25

NUCLEAR WEAPONS, ADVISORY OPINION
10. MILITARY A ND PARAMILITARY ACTIVITIES (1984) ICJ REP 392 3

IN AND AGAINST NICARAGUA (NICARAGUA
V. UNITED STATES OF AMERICA )
11. NORTH SEA CONTINENTAL SHELF CASES I.C.J. REP. 1969 20

(FEDERAL REPUBLIC OF
GERMANY/D ENMARK; FEDERAL REPUBLIC
OF GERMANY/ NETHERLANDS)
12. OIL PLATFORMS (IRAN V . U.S.) (1996) I.C.J. 803. 4
13. PORTUGAL V. AUSTRALIA 1995 I.C.J. 90 26
14. PULP MILLS C ASE (ARGENTINA V. (2006) ICJ REP 113 1, 24, 25
URUGUAY ) & 29
15. THE DEMOCRATIC R EPUBLIC OF THE ICJ GL NO 121 18

CONGO V. BELGIUM
16. TREATMENT IN HUNGARY OF AIRCRAFT (1954) ICJ REP 103 2

AND CREW OF UNITED STATES OF
AMERICA, UNITED STATES V. USSR
17. UNITED STATES DIPLOMATIC AND ICJ REPORTS 29

CONSULAR STAFF IN TEHRAN (UNITED (1980)
STATES OF AMERICA V . IRAN)
18. UNITED STATES V. CZECHOSLOVAKIA 1956 ICJ REP 6 2
MEMORANDUM ON BEHALF OF THE RESPONDENT XI | PAGE

❖ INTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTES
SERIAL CASE NAME CITATION PG. N O.

NO.
1. ANTOINE GOETZ ET C ONSORTS V. ICSID CASE NO. 18

RÉPUBLIQUE DU BURUNDI ARB/95/3
2. CONSORTIUM RFCC V. KINGDOM ICSID, CASE NO. 14

OF MOROCCO ARB/00/6
3. CMS GAS TRANSMISSION COMPANY ICSID CASE NO. ARB/01/8 16 & 17

V. THE REPUBLIC OF ARGENTINA
4. CONTINENTAL CASUALTY ICSID CASE NO. ARB/03/9 16

COMPANY V. THE ARGENTINE
REPUBLIC
5. EL PASO ENERGY INTERNATIONAL ICSID CASE NO. 16

COMPANY V. THE ARGENTINE ARB/03/15
REPUBLIC
6. ENRON CREDITORS RECOVERY ICSID CASE NO. ARB/01/3 16

CORPORATION AND PONDEROSA
ASSETS, L.P. V. ARGENTINE
REPUBLIC
7. IMPREGILO S.P.A. V. ARGENTINE ICSID CASE NO. 16

REPUBLIC ARB/07/17
8. LG & E ENERGY CORP., LG & E ICSID CASE NO. ARB/02/1 16

CAPITAL CORP. AND LG & E
INTERNATIONAL INC. V. ARGENTINA
REPUBLIC
9. SEMPRA ENERGY INTERNATIONAL V. ICSID CASE NO. 16 & 17

ARGENTINE REPUBLIC ARB/02/16
MEMORANDUM ON BEHALF OF THE RESPONDENT XII | PAGE

10. SUEZ, SOCIEDAD GENERAL DE ICSID CASE NO. 16

AGUAS DE BARCELONA , S.A. AND ARB/03/19
VIVENDI U NIVERSAL, S.A. V.
ARGENTINE REPUBLIC
❖ REPORTS OF INTERNATIONAL ARBITRAL AWARDS
SERIAL CASE NAME CITATION PG.

NO. NO.
1. TRAIL SMELTER ARBITRATION 3 R.I.A.A. 1905 1, 25

(U.S. V. CANADA.) & 28
❖ EUROPEAN COURT OF HUMAN RIGHTS

NO. NO.
1. ARZTE FÜR DAS LEBEN V. IHRL 79 (ECHR 1988) 8

AUSTRIA
2. COSTELLO -ROBERTS V. UK ECHR, (1993) SERIES A VOL 8

247
3. FOX, CAMPBELL AND (1990) 13 ECHR 157 16

HARTLEY V. THE UNITED
KINGDOM
4. GUERRA AND OTHERS V. ITALY (1998) ECHR 7 8
5. HATTON AND OTHERS V. THE (2003) ECHR 338 8

UNITED KINGDOM
6. LOPEZ OSTRA V . SPAIN (1995) 20 ECHR 277 8
MEMORANDUM ON BEHALF OF THE RESPONDENT XIII | PAGE

7. POWELL AND RAYNER V. (1990) 12 ECHR 335 8

UNITED KINGDOM
8. X AND Y V. NETHERLANDS (1985) ECHR 4 8
9. YOUNG JAMES AND WEBSTER (1981) ECHR 4 8

V. UNITED KINGDOM
❖ SUPREME COURT OF THE UNITED STATES

NO. NO.
1. BG GROUP PLC. V. THE 572 U.S. 25 (2014) 16

REPUBLIC OF ARGENTINA
2. INTERNATIONAL SHOE CO. V. 1945 SCC ONLINE US SC 158 5

WASHINGTON
❖ SUPREME COURT OF INDIA

NO. NO.
1. MAGANBHAI ISHWARLAL (1970) 3 SCC 400 23

PATEL V . UNION OF INDIA
2. VELLORE CITIZENS WELFARE AIR 1996 SC 2715 23

FORUM V. UNION OF INDIA
3. VISHAKA & ORS. V. STATE OF (1997) 6 SCC 241 23

RAJASTHAN
MEMORANDUM ON BEHALF OF THE RESPONDENT XIV | PAGE

❖ MISCELLANEOUS DECISIONS

NO. NO.
1. BABCOCK V. JACKSON 56 ALB. L. REV. 693 (1993) 5
2. ESSIEN V. THE REPUBLIC OF AHRLR 131 (ECOWAS 2007) 22

THE GAMBIA AND ANR.
3. HAJRIZI D ZEMAJL ET AL. V. CAT/C/29/D/161/2000 21

YUGOSLAVIA
4. ILGAR MAMMADOV V. 15172/13 (2014) 16

AZERBAIJAN
5. IN RE SOUTH AFRICAN 56 F. SUPP. 3D 331 (2014) 9

APARTHEID LITIGATION
6. MEHMET HASAN ALTAN V. CASE NUMBER 13237/17 (2018) 16

TURKEY
7. NATIONAL GRID V. ARGENTINA IIC 361 (2008) 16
8. MOX PLANT CASE (IRELAND V. ICGJ 343 (ITLOS 2001) 29

UNITED KINGDOM )
9. PRESBYTERIAN CHURCH OF 582 F.3D 244 5

SUDAN V. TALISMAN ENERGY
10. RAINBOW WARRIOR (NEW 82 I.L.R. 500, (1990) 12

ZEALAND V. FRANCE)
11. SAHIN V. CANADA (1995) 1 FCR 214 15
12. SELAHATTIN DEMIRTAŞ V. APPLICATION NO. 14305/17 16

TURKEY (NO. 2)
MEMORANDUM ON BEHALF OF THE RESPONDENT XV | PAGE

III. ACADEMIC ARTICLES AND JOURNALS
SERIAL NAME OF THE ARTICLE / JOURNAL PG. N O.

NO.
1. A DRZEMCZEWSKI EUROPEAN HUMAN RIGHTS CONVENTION IN 8

DOMESTIC LAW (OXFORD: OXFORD UNIVERSITY PRESS, 1983)
2. ALVAREZ, J.E., 2011. ARE CORPORATIONS ’ SUBJECTS OF 5

INTERNATIONAL LAW. S ANTA CLARA J. INT’L L., 9, P.1.
3. ANTHONY EWING: UNDERSTANDING THE GLOBAL COMPACT 9

HUMAN RIGHTS PRINCIPLES IN EMBEDDING HUMAN R IGHTS
BUSINESS PRACTICE, UNITED NATIONS GLOBAL COMPACT / OFFICE
OF THE UNHCR, NEW YORK, 2004, P. 38.
4. BEYOND VOLUNTARISM : HUMAN R IGHTS AND THE DEVELOPING 8

INTERNATIONAL LEGAL OBLIGATIONS OF COMPANIES ,
INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, GENEVA,
2002, PG. 125-136.
5. ILIAS BANTEKAS: CORPORATE SOCIAL RESPONSIBILITY IN 7

INTERNATIONAL LAW, BOSTON UNIVERSITY INTERNATIONAL LAW
JOURNAL, VOL. 309 (2004), P. 25.
6. INTERNATIONAL INVESTMENT LAW: A CHANGING LANDSCAPE, 19

ISBN 92-64-01164-1, OECD 2005
7. J. CAMERON AND J. ABOUCHAR, ‘PRECAUTIONARY PRINCIPLE: A 24

FUNDAMENTAL PRINCIPLE OF LAW AND POLICY FOR THE
PROTECTION OF GLOBAL ENVIRONMENT’, (1991) 14(1) BOSTON
COLLEGE INTERNATIONAL COMPARATIVE LAW REVIEW 1–27.
8. KHAYDARALI YUNUSOV, VALERIYA, HUSNIDDIN OCHILDIYEV, 8

ROLES & RESPONSIBILITIES OF TRANSNATIONAL CORPORATIONS
MEMORANDUM ON BEHALF OF THE RESPONDENT XVI | PAGE

WITH REGARD TO HUMAN RIGHTS: P-9 (UNIVERSITY OF WORLD

ECONOMY AND DIPLOMACY, TASHKENT, UZBEKISTAN).
9. KINLEY, DAVID “CORPORATE SOCIAL RESPONSIBILITY AND 11

INTERNATIONAL HUMAN RIGHTS L AW” IN M ULLERAT, RAMON
(ED) CORPORATE SOCIAL R ESPONSIBILITY : THE CORPORATE
GOVERNANCE OF THE 21ST CENTURY, KLUWER, P2 (ON FILE ).
10. KOHEN, M., 2012. THE PRINCIPLE OF NON-INTERVENTION 25 2

YEARS AFTER THE NICARAGUA JUDGMENT. LEIDEN JOURNAL OF
INTERNATIONAL LAW, 25(1), PP.157-164.
11. KURTIS F. J. DOBBLER, TASHKENTSKIY GOSUDARSTVENNIY 7

YURIDICHESKIY ISTITUT , TASHKENT, 2004, P. 6
12. ROSEMARY , B., THE SAFE COUNTRY NOTION IN EUROPEAN 22

ASYLUM LAW, 9 HARV. HUM. RIGHTS J. 187 (1996)
13. ROSS, M.S., 1989. RETHINKING DIPLOMATIC IMMUNITY: A 18

REVIEW O F REMEDIAL APPROACHES TO ADDRESS THE ABUSES OF
DIPLOMATIC PRIVILEGES AND IMMUNITIES. AM. UJ INTL’L L. &
POL’Y, 4, P G. 173.
14. SCHEININ, M.,2007 THE ICJ AND THE INDIVIDUAL INTERNATIONAL 5

COMMUNITY LAW REVIEW, 9(2), PP. 123-137.
15. SIMMONS, ON THE TERRITORIAL RIGHTS OF STATES, 26

PHILOSOPHICAL ISSUES: SOCIAL, POLITICAL AND LEGAL
PHILOSOPHY, VOL.11 (2001) 321
16. TAKANO, A., 2018, DUE DILIGENCE OBLIGATIONS AND 29

TRANSBOUNDARY ENVIRONMENTAL HARM: CYBER SECURITY
APPLICATIONS . LAWS, 7(4), P G. 36.
17. THE INTERNATIONAL CRIMINAL COURT AND UNIVERSAL 2

JURISDICTION : A FRAUGHT R ELATIONSHIP ? NEW CRIMINAL LAW
REVIEW, 12(4), P G. 498-512.
MEMORANDUM ON BEHALF OF THE RESPONDENT XVII | PAGE

18. THE PRINCIPLES ON CHOICE OF LAW IN INTERNATIONAL 4

COMMERCIAL CONTRACTS WERE ALSO PUBLISHED IN THE
UNIFORM LAW REVIEW, AT (2015) 20 UNIF. L. R EV. 362.
19. VIVIEN A. SCHMIDT: THE NEW WORLD ORDER, INCORPORATED : 7

THE RISE OF BUSINESS AND THE DECLINE OF THE NATION STATE ,
DAEDALUS, VOL. 124, NO. 2 (1995).
20. Y. M. KOLOSOV & E. S. KRIVCHIKOVA: MEJDUNARODNOE PRAVO 11

[INTERNATIONAL LAW], UCHEBNIK MEJDUNARODNIE
OTNOSHENIYA, M OSCOW, 2000, P. 86.
IV. BOOKS
SERIAL NAME OF THE BOOK PG. N O.

NO.
1. ALEXANDRE KISS & DINAH SHELTON, INTERNATIONAL 25

ENVIRONMENTAL LAW , AT 269 (2ND ED. TRANSNATIONAL
PUBLISHERS INC. 2000)
2. BIRNIE & BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT , 27

AT 131(2 ND ED. OXFORD U. PRESS 2002)
3. BIRNIE ET. AL., INTERNATIONAL LAW AND THE ENVIRONMENT 28

218 (2ND ED. 2004)
4. CHRISTIAN J. TAMS, ENFORCING OBLIGATIONS ERGA OMNES IN 26

INTERNATIONAL LAW, AT 153 (CAMBRIDGE U. PRESS 2005)
5. DE WAART, P.J., DENTERS, E.M. AND SCHRIJVER, N. EDS., 1998. 18

REFLECTIONS ON INTERNATIONAL LAW FROM THE LOW
COUNTRIES: IN HONOUR OF PAUL DE WAART (VOL. 29).
MARTINUS NIJHOFF PUBLISHERS.
MEMORANDUM ON BEHALF OF THE RESPONDENT XVIII | PAGE

6. DICET, MORRIS AND COLLINS, CONFLICT OF LAWS, SWEET AND 5

MAXWELL, 15TH ED., 2018
7. H.S. BURNETT, ‘UNDERSTANDING THE PRECAUTIONARY 29

PRINCIPLE AND ITS THREAT TO HUMAN WELFARE’ (2009) 26(2)
SOCIAL PHILOSOPHY AND POLICY 378–410.
8. MALCOLM N. SHAW, INTERNATIONAL LAW, 6TH ED., CAMBRIDGE 24

PRESS 2008.
9. MAURIZIO RAGAZZI, THE CONCEPT OF INTERNATIONAL 27

OBLIGATIONS ERGA OMNES, AT 153 (CLARENDON PRESS 1997)
10. O. SCHACHTER , INTERNATIONAL LAW IN THEORY AND PRACTICE, 25

AT 336-368 (BRILL ACADEMIC PUBLISHERS 1991)
11. PETER MALANCZUK, INTERNATIONAL LAW AND MUNICIPAL L AW, 23

AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW,
7TH REVISED EDITION, (NEW YORK: ROUTLEDGE, 1997), CHAPTER
4, P. 65.
12. PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL 25

ENVIRONMENTAL LAW, AT 878 (2ND ED. CAMBRIDGE U. PRESS
2003)
13. TIM STEPHENS, INTERNATIONAL COURTS AND ENVIRONMENTAL 25

PROTECTION, AT 134 (C AMBRIDGE U. PRESS 2009)
14. XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL 24

LAW, CAMBRIDGE STUDIES IN INTERNATIONAL AND
COMPARATIVE LAW 164 (CAMBRIDGE UNIVERSITY PRESS, 2003).
MEMORANDUM ON BEHALF OF THE RESPONDENT XIX | PAGE

STATEMENT OF JURISDICTION
The State of Tots [Respondent] have submitted the differences concerning the humanitarian
crisis as well as the environmental degradation to the International Court of Justice pursuant
to further reservations as put forward not affecting the Tots Sovereignty.
The Court’s jurisdiction is invoked under Article 36(2) of the Statute of the International
Court of Justice, 1950. On the basis of the foregoing, the Court is hereby requested to adjudge
the dispute in accordance with the rules and principles of international law, including any
applicable declarations and treaties.
Pursuant to Article 40(1) of the Statute and by virtue of a Special Agreement [“Record”],
both the parties have jointly transmitted a copy thereof to the Registrar of the Court, the ICJ
is hereby requested to adjudge the dispute in accordance with the rules and principles of
international law, including any applicable treaties.
THE PARTIES SHALL ACCEPT ANY JUDGMENT OF THE COURT AS FINAL AND
BINDING AND SHALL E XECUTE IT IN UTMOST GOOD FAITH.
MEMORANDUM ON BEHALF OF THE RESPONDENT XX | PAGE

STATEMENT OF FACTS
BACKDROP TO THE HISTORICAL BACKGROUND OF THE COUNTRIES I NVOLVED :
Tots is a developed country with a diversified economy, including a strong industrial sector
that relies heavily on manufacturing and energy. Grump is a developing country, and its
economy is based largely on fishing and agriculture. The Republic of Grump also shares a coral
reef ecosystem on its west coast and is proud of eco-tourism in that area. The Republic of Tan
is another neighbouring island which has economic agreements with both Grump and Tots and
has good friendly relations with both nations.
THE COAL MINE AND THE BARGAIN LLC:
Tots conducted an extensive Environment impact assessment. Super being a coastal region near
the coral reef ecosystem was made to do an extensive study of its large coal mine area in the
district of Khasra. The coal mine in question was called Prima and was first one to be auctioned.
The most interested Company was that of Republic of Grump named Bargin LLC Ltd. Bargin
LLC is a transnational corporation which has multiple businesses located around world.
BIDDING OF T HE PRIMA:
Bargin LLC participated in auction process and was accepted as highest bidder by government
of Tots. Mr Gavin Belson, Hon’ble Minister announced that “It is a momentous day as we have
created thousands of jobs, and this will boost the economy as well as help in growth and
development and bolster friendly neighbourhood. The energy crisis in Grump began to resolve
and the prices of electricity began to be reduced by as much as 15% due to such direct supply.
REACTION OF NGO PROTECT CORAL REEF:
The NGO, Protect Coral Reef (PCR) stated protest campaigns due to the untreated effluents
being discharged into the pacific in violation of environmental protection norms. They
generated multiple studies stating that the Barrier Reef has started suffering a series of mass
coral bleaching which is caused by rising sea temperature owing to over exploitation of Coal.
MEMORANDUM ON BEHALF OF THE RESPONDENT XXI | PAGE

RISE IN EARTH’S TEMPERATURE AND CARBON EMISSION:
The leader of PCR Dr Haze said burning all the coal approved for mining at Bargin Site in
Khasra site would alone use up 3.3 per cent of the world's remaining 'carbon budget' for limiting
warming to 1.5C. If the mines also go ahead, this will rise to almost 6 per cent.
DETERIORATION OF C ORAL REGION:
The coral region started to deteriorate and there were massive landslides in Khasra due to
mining work and about 2000 people lost their lives due to such massive landslides. The area
became unfit for habitation and was declared a hazardous zone. In the meanwhile, 189,000
people were internally displaced, and Tots was unable to house them in 55 temporary sites.
PROMULGATION OF ORDINANCE:
The President swiftly promulgated an ordinance, measure to deal with the nationalisation of
Bargin LLC was ordained with immediate effect as the only substantial harm done to human
life as well as the environmental degradation and damage which was caused due to such
profiteering and human greed. Ordinance introduced criminal sanctions wherein punishment
of imprisonment of up to 5 years was brought into action for key managerial person.
EXPULSION OF MR. CRISTANINIHO:
Mr Cristaniniho was expelled from the country by an expulsion order dated 19th November
2020 bearing Order No.316 by the Ministry of Internal Protection and Security. He was also
arrested secretly and placed in custody without any legal recourse as he was considered to be
the prime accused in the eco-humanitarian crisis throughout the Tots and Tan.
SUBMISSION BEFORE THE INTERNATIONAL COURT OF JUSTICE:
The humanitarian crisis as well as the environmental degradation took a turn for worse when
there were massive floods and death of fishes in the coastal regions due to such untreated
discharge near the coast of Tan. Tan immediately proceeded to the ICJ to prevent any further
harm and determination of violations as well as rectification under international law.
MEMORANDUM ON BEHALF OF THE RESPONDENT XXII | PAGE

STATEMENT OF ISSUES
ISSUE 1: WHETHER THE PRESENT CLAIM IS MAINTAINABLE BEFORE ICJ?
ISSUE 2: WHETHER DID BARGIN HAVE ANY RESPONSIBILITY FOR ENSURING HUMAN
RIGHTS AND THE PROTECTION OF ENVIRONMENT? WHETHER BARGIN CAN BE HELD
INTERNATIONAL LAW ?
GIVEN UNDER THE ORDINANCE AND WHETHER T HE PRESIDENT OF BARGIN COMPANY WAS
LAWFULLY DETAINED, AND WHETHER HIS SUBSEQUENT DENIAL OF HIS DIPLOMATIC
RIGHTS WAS JUSTIFIED. IN THE EVENT THEY ARE JUSTIFIED DO THEY DESERVE PAYMENT
OF COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN INTERNATIONAL LAW?
ISSUE 4: WHETHER THERE EXISTS ANY RESPONSIBILITY FOR TAN TO P ROVIDE REFUGEE
STATUS TO THE CITIZENS OF TOTS ?
ISSUE 5: WHETHER TOTS IS RESPONSIBLE FOR ENVIRONMENTAL HARM DONE TO THE
COASTAL AND CORAL REEF-R ICH REGION OF THE REPUBLIC OF GRUMP ?
MEMORANDUM ON BEHALF OF THE RESPONDENT XXIII | PAGE

SUMMARY OF PLEADINGS
[1.] WHETHER THE PRESENT CLAIM IS MAINTAINABLE BEFORE ICJ?
It is humbly submitted that the Present claim is not maintainable before the ICJ. To that effect,
the Respondent seeks to establish that; [A] The ICJ has no jurisdiction over the present
disputes, [B] Tots recognizes the ICJ Jurisdiction only on condition of Reciprocity on Part of
Tan, [C] The Court lacks jurisdiction under CBD, the Paris Agreement, and UNFCCC, [D]
The State has exclusive jurisdiction to determine violations in case of Conflict under Private
International Law and [E] The Company is not State for determining its Liability under ICJ.
[2.] WHETHER DID BARGIN HAVE ANY RESPONSIBILITY FOR ENSURING HUMAN RIGHTS
AND THE PROTECTION OF ENVIRONMENT ? WHETHER BARGIN CAN BE HELD
INTERNATIONAL LAW?
It is humbly submitted that Bargin is not responsible for ensuring human rights and protection
of environment. Further, Bargin can’t be held accountable for Ecocide or any other
international harm. To that effect, the Respondent seeks to establish that; [A] The Company
Bargin LLC has not violated Human Rights to the Civilians and [B] Bargin has no liability for
violation of Ecocide in International Law.
[3.] WHETHER TOTS COULD CONFISCATE B ARGIN AS IT DID UNDER THE POWERS
GIVEN UNDER THE ORDINANCE AND WHETHER THE PRESIDENT OF BARGIN COMPANY
WAS LAWFULLY DETAINED, AND WHETHER HIS SUBSEQUENT DENIAL OF HIS
DIPLOMATIC RIGHTS WAS JUSTIFIED. I N THE EVENT THEY ARE J USTIFIED DO THEY
DESERVE PAYMENT OF COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES I N
INTERNATIONAL LAW?
It is humbly submitted that Republic of Torts could confiscate Bargin under ordinance and the
President of Bargin Company was lawfully detained and also, the subsequent denial of
MEMORANDUM ON BEHALF OF THE RESPONDENT XXIV | PAGE

diplomatic rights is justified. To that effect, the Respondent seeks to establish that; [A] The
confiscation of property of Bargin by Republic of Tot was legally justified, [B] The President
of Bargin was lawfully detained, [C] The subsequent denial of diplomatic rights was justified,
[D] The denial of payment of compensation or apology or any other remedy is justified.
[4.] WHETHER THERE EXISTS ANY RESPONSIBILITY FOR TAN TO PROVIDE REFUGEE
STATUS TO THE CITIZENS OF TOTS?
It is humbly submitted that there exists a responsibility for Tan to provide refugee status to the
citizens of Tots. To that effect, the Respondent seeks to established that; [A] Act of Tan is
against the international Human Right Law, [B] Republic of Tan is the signatory of the United
Nation, [C] Action of violates the provision of ICCPR, [D] Republic of Tan fails to act in
accordance with international obligation, [E] Republic of Tan failed to act per the norms of
civilized state, [F] Principle of Non-refoulement and Obligation of Erga Omnes applied in the
instant case and [G] Refugee convention is applicable even in the absence of domestic law.
[5.] WHETHER T OTS I S RESPONSIBLE FOR ENVIRONMENTAL HARM DONE TO T HE
COASTAL AND CORAL REEF-RICH REGION OF THE REPUBLIC OF GRUMP?
It is humbly submitted that Tots is not responsible for environmental harm done to the coastal
and coral reef-rich region of the Republic of Grump. To that effect, the Respondents seeks to
establish that; [A] Tots has met the standard of due diligence, [B] Tots has conducted itself in
consistent with international law in exploiting its own natural resources, [C] Tots is not liable
under the “Fault liability” regime, [D] The “strict liability” regime does not apply against Tots
in the instant case and [E] Tots complied with the Precautionary Principles.
MEMORANDUM ON BEHALF OF THE RESPONDENT XXV | PAGE

PLEADINGS
ISSUE 1: WHETHER THE PRESENT CLAIM IS MAINTAINABLE BEFORE ICJ?
[¶1] It is humbly contended that the Present claim is not maintainable before the ICJ. To that
effect, the Respondent seeks to establish that; [A] The ICJ has no jurisdiction over the present
disputes, [B] Tots recognizes the ICJ Jurisdiction only on condition of Reciprocity on Part of
Tan, [C] The Court lacks jurisdiction under CBD, the Paris Agreement, and UNFCCC, [D]
The State has exclusive jurisdiction to determine violations in case of Conflict under Private
International Law and [E] The Company is not State for determining its Liability under ICJ.
[A] THE ICJ HAS NO JURISDICTION OVER THE PRESENT DISPUTES
[¶2] The jurisdiction of an international tribunal depends … on consent of the States concerned
to accept that jurisdiction. Accordingly, no sovereign State can be made a party to proceedings
before the Court unless it has in some manner or other consented thereto.”1 A State can consent
to ICJ jurisdiction by several methods. First, the Court has jurisdiction over “all cases which
the parties refer to it.”2 Second, the Court has jurisdiction over “all matters specially provided
for … in treaties and conventions in force.” Last, “the states parties to the present Statute may
at any time declare that they recognize … the jurisdiction of the Court in all legal disputes
concerning … any question of international law.” It was recognized in Arbitral Tribunal in
Trail Smelter3 and Pulp Mills4case that evidence concerning transboundary harm and injury
must be “clear and convincing”. It is contended that jurisdiction of this Court is not applicable
because the dispute falls under the regime of the LC5 and LP.6
1
Handbook of the Court, https://www.icjcij.org/files/publications/handbook-of-the-court-en.pdf (last visited Nov.
01, 2022).
2
United Nations, Statute of the International Court of Justice, art. 36(1), 18 April 1946.
3
Trail Smelter Arbitration Award (1941), p. 1949.
4
¶ 119, Pulp Mills Case (Argentina v. Uruguay), 2010 I.C.J. Pg. 55-56.
5
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, Dec. 29, 1972
1046 U.N.T.S. 120.
6
1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter,
Nov. 7, 1996, 36 I.L.M. 1 [hereinafter LP].

[B] TOTS RECOGNIZES THE ICJ JURISDICTION ONLY ON CONDITION OF RECIPROCITY
[¶3] The Statute of ICJ provides that a State may recognize as compulsory, in relation to any
other State accepting the same obligation, the jurisdiction of the Court in legal disputes.7 The
nature of legal disputes in relation to which such compulsory jurisdiction may be recognized
are listed in Article 36, paragraphs 2-5, of the Statute.8 However, in this present case it is crystal
clear to see the resolution of the republic of Tots with respect to the jurisdiction as compulsory
ipso facto but only on the condition of reciprocity on the part of other State9 as the jurisdiction
of the Court in contentious proceedings is based on consent of the States to which it is open.10
[B.1] TOTS HAS RIGHT TO PUT FORTH RESERVATION IN RESPECT OF JURISDICTION
[¶4] In respect to Jurisdiction the state of Tots put forth its reservations to have compulsory
jurisdiction. These reservations must be respected as the only ground to voluntary consent of
the state for peaceful settlement of disputes. The ICJ in any way has no rights to alter these
reservations or to pass a judgment upon such disputes which has never been submitted.
[B.2] RESPECT FOR S OVEREIGNTY AND INDEPENDENT JUDICIARY OF TOTS
[¶5] Sovereignty in the sense of contemporary public international law denotes the basic
international legal status of a state that is not subject, within its territorial jurisdiction, to the
governmental, executive, legislative, or judicial jurisdiction of a foreign state or to foreign law
other than public international law.11 Under state sovereignty no state has authority to tell
another state how to control its internal affairs. Sovereignty grants and limits power; gives state
complete control over their territory while restricting influence that states have on one another.
[B.3] PRINCIPLE OF NON-INTERVENTION
7
The International Criminal Court and universal jurisdiction: a fraught relationship? New Criminal Law Review,
12(4), pg. 498-512.
8
United Nations, Statute of the International Court of Justice, 18 April 1946, Art. 36.
9
¶ 17, Moot Compromise.
10
Treatment in Hungary of Aircraft and Crew of United States of America, United States v USSR, Removal from
the list, Order, (1954) ICJ Rep 103; United States v Czechoslovakia, 1956 ICJ Rep 6.
11
Kohen, M., 2012. The principle of non-intervention 25 years after the Nicaragua judgment. Leiden Journal of
International Law, 25(1), pp.157-164.

[¶6] Article 2.7 of UN Charter provides that - “Nothing contained in the present Charter shall
authorize the UN to intervene in matters which are essentially within domestic jurisdiction of
any state or shall require Members to submit such matters to settlement under present Charter;
but this principle shall not prejudice application of enforcement measures under Chapter VII.”12
[¶7] The International Court expounded on principle of non-intervention in its 1986 judgment
in the Nicaragua case.13 The Court went on to say that “the principle forbids all States or groups
of States to intervene directly or indirectly in internal or external affairs of other States” and
that “a prohibited intervention must accordingly be one bearing on matters in which each State
is permitted, by principle of State sovereignty, to decide freely. Intervention is wrongful when
it uses methods of coercion which forms very essence of, prohibited intervention” (para. 205).
The Court also dealt with the principle of non-interference in its judgment of 19 December
2005 in Democratic Republic of Congo v. Uganda,14when it concluded “that Uganda had
violated the sovereignty and also the territorial integrity of the DRC. Uganda’s actions equally
constituted an interference in the internal affairs of the DRC and in the civil war raging there.
[C] COURT LACKS JURISDICTION UNDER CBD, PARIS AGREEMENT, A ND UNFCCC
[C.1] CBD IS IRRELEVANT TO THIS DISPUTE
[¶8] CBD focuses on conserving biological diversity through finding sustainable ways to use
Earth’s wealth of living organisms. CBD seeks to conserve biological diversity by using earth’s
living organisms sustainably.15 According to impact assessment obligation in Article 14 of
CBD, Tots conducted an extensive Environmental Impact Assessment16 before allowing
Bargin LLC Ltd. to take over coal mine which was called Prima.17The Court ruled that it could
base itself not only on Application and final submissions, but also on diplomatic exchanges,
12
United Nations, Statute of the International Court of Justice, 18 April 1946, Art. 27.
13
Nicaragua v. United States of America, (1984) ICJ Rep 392.
14
Congo, the Democratic Republic v. Uganda, (2005) ICJ Rep 168.
15
Convention on Biological Diversity, 6 June 1992, pg. 2 and Article 1.
16
17

public statements and other pertinent evidence to determine its jurisdiction.18 CBD is irrelevant
to this dispute, because CBD concerns conserving biological diversity through sustainable use
of organisms, but Tan has went to ICJ for environmental degradation due to floods and death
of fishes in coastal regions.19 Jurisdiction of the Court cannot be based on the interpretation or
application of preambulatory provisions of a treaty.20 So, this Court doesn’t have jurisdiction.
[C.2] T HE COURT LACKS JURISDICTION UNDER THE PARIS AGREEMENT AND
UNFCCC, BECAUSE T OTS VIOLATED NEITHER
[¶9] Objective of UNFCCC is “stabilization of greenhouse gas concentrations in atmosphere
at a level that would prevent dangerous anthropogenic interference with climate system”21, and
Paris agreement is “strengthen global response to threat of climate change”.22Neither the
UNFCCC nor Paris Agreement involves marine biodiversity, so UNFCCC and Paris
Agreement have nothing to do with the issue in this case. For Paris Agreement or UNFCCC to
apply, the Court must find that Tots has state responsibility for the actions of Bargin LLC Ltd.
Yet, even if the Court finds that Tots does bear state responsibility for Bargin LLC Ltd.’s
actions, Paris Agreement and UNFCCC still not apply, because Bargin LLC Ltd.- Tots violated
neither treaty. As both treaties aim stabilize climate change, Tots didn’t violate both treaties.
[D] THE STATE HAS EXCLUSIVE JURISDICTION TO DETERMINE VIOLATIONS IN CASE
OF CONFLICT UNDER PRIVATE INTERNATIONAL LAW
[¶10] The state has jurisdiction23 to determine the violation of Private international law which
consists of principles and rules for dealing with legal disputes that have a foreign element: for
example, a cross-border divorce case, or transnational commercial dispute.24 In US Supreme
18
¶ 30-31, Fisheries Jurisdiction Case (Spain v. Canada), I.C.J. Reports 1998.
19
20
Oil Platforms (Iran v U.S.), (1996) I.C.J. 803.
21
UN General Assembly, United Nations Framework Convention on Climate Change,
https://unfccc.int/resource/docs/convkp/conveng.pdf.
22
UN General Assembly, Paris Agreement, article 2, 12 December 2015.
23
24
The Principles on Choice of Law in International Commercial Contracts were also published in the Uniform
Law Review, at (2015) 20 Unif. L. Rev. 362.

Court’s decision in International Shoe Co. v. Washington.25 It govern personam jurisdiction in
forum state when parties are “non-residents”. It can be applied if the court feels that a person
has “sufficient minimum contacts” which may be the defendant’s physical presence, conferred
jurisdiction through a contract, a stream of commerce, etc.26 Lex situs rule defined by Morris
as “The sovereign of country where it has absolute control over the land within its dominions,
where his courts are alone entitle to exercise its jurisdiction over such land.”27
[E] THE COMPANY IS NOT STATE FOR DETERMINING ITS LIABILITY UNDER THE ICJ
[¶11] It is submitted that only states can submit to the jurisdiction of the ICJ.28 The Montevideo
Convention29 defines the term “State” as it must have a permanent population, a defined
territory, a government and the capacity to conduct international relations. A corporation on
the other hand is a separate legal entity having a corporate personality of its own and do not
fulfil the essential conditions of statehood as stated under the Montevideo Convention. In
Presbyterian Church of Sudan v. Talisman Energy Inc.30 had no problem dismissing
Crawford’s and Greenwood’s respective contentions that, outside Of ATCA decisions by U.S.
courts, corporations have generally not been found liable under international law and are
therefore not “subjects” of international law.
[E.1] ICJ HAS NO JURISDICTION T O DEAL WITH WRONG COMMITTED BY COMPANY
[¶12] The matter related to wrongs committed by corporation falls into the jurisdiction of other
relevant forums for instance the International Criminal Court or Municipal Courts etc.31 Article
5 of the Rome Convention32 states that the ICC has jurisdiction to try cases related to crimes
of genocide, crimes against humanity, war crime & the crime of aggression. ICJ is not
25
International Shoe Co. v. Washington, 1945 SCC OnLine US SC 158.
26
David D. Siegel, A Retrospective on Babcock v. Jackson, A Personal View, 56 Alb. L. Rev. 693 (1993).
27
Dicet, Morris and Collins, Conflict of laws, sweet and Maxwell, 15th Ed., 2018.
28
Scheinin, M.,2007 The ICJ and the Individual International community law review, 9(2), pp. 123-137.
29
Organization of American States (OAS), Convention on Political Asylum, 1933.
30
Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244.
31
Alvarez, J.E., 2011. Are corporations’ subjects of international law. Santa Clara J. Int’l L., 9, p.1.
32
Article 5, UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 1998,
ISBN No. 92-9227-227-6, Available at: https://www.refworld.org/docid/3ae6b3a84.html.

appropriate forum to decide issues related to crime committed by private parties. The municipal
courts are in the best position to deal with the matter as the incident happened in the Tot which
is also in consonance with the principle of respecting the sovereignty of the respective states.
HENCE, IT IS HUMBLY S UBMITTED THAT THE PRESENT CLAIM IS NOT MAINTAINABLE
BEFORE ICJ TO AN EXTENT SUBMITTED WITH RESERVATION.
ISSUE 2: WHETHER DID BARGIN HAVE ANY RESPONSIBILITY FOR ENSURING HUMAN
RIGHTS AND T HE PROTECTION OF ENVIRONMENT ? WHETHER BARGIN CAN BE HELD
ACCOUNTABLE F OR ECOCIDE OR ANY OTHER INTERNATIONAL HARM UNDER
INTERNATIONAL LAW?
[¶13] It is humbly contended that Bargin is not responsible for ensuring human rights and
protection of environment. Further, Bargin can’t be held accountable for Ecocide or any other
international harm. To that effect, the Respondent seeks to establish that; [A] The Company
Bargin LLC has not violated Human Rights to the Civilians and [B] Bargin has no liability for
violation of Ecocide in International Law.
[A] THE COMPANY BARGIN LLC HAS NOT VIOLATED HUMAN RIGHTS TO CIVILIANS
[¶14] Bargin LLC incorporated itself as an LLC in Tots in accordance with its domestic legal
regime33 i.e., after all necessary clearance and approval.34 As according to mandate that
Transnational corporations and other business enterprises shall recognize and respect
applicable norms of international law, national laws and regulations.35 Art. 3 mandate that each
state must co-operate on the basis of a system of information and prior consultation in order to
achieve resources without causing legitimate interest of others.36 Such measures have not been
taken by the Tots which led to the aggressive attack on the 1,100-mile-long reef in two deadly
33
34
35
Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard
to Human Rights, UN Economic and Social Council of 26 August 2003.
36
Charter of Economic Rights and Duties of States of 1974, Art. 3.

ways.37The extension of human rights obligations to corporate actors will create a 'free rider'
problem.38 It is predictable that not all states and not all firms will take the same care to observe
fundamental human rights. Thus, the more conscientious corporations that invest time and
money into observing human rights, and making themselves accountable for their record in this
field, will be at a competitive disadvantage in relation to more unscrupulous corporations that
do not undertake such responsibilities. MNEs themselves appear to be rejecting a purely non-
social role for themselves through adoption of corporate and industry-based codes of conduct.39
[¶15] The framework for determining what human rights issues is linked to transnational
corporations is addressed through the UN Secretary-General’s Global Compact. Some authors
call these scopes as the core CSR Principles,40 which support and respect protection of
internationally proclaimed human rights and try to not with complicit in human rights abuses
as it has been transnational corporations that have persistently lobbied industrialized States
toward trade liberalization through lifting of tariffs and domestic subsidies.41
[A.1] LEGITIMATED OBJECTIVES OF THE REPUBLIC OF TOTS
[¶16] To regulate and supervise the activities of transnational corporations within its national
jurisdiction and take measures to ensure that such activities comply with its laws, rules and
regulations and conform with its economic and social policies.42 In modern society, States carry
out both the protection and the violation of human rights.43 In this case the State has considered
the growth of the economy, industrialized sector44and the reduction to the electricity prices45
beyond the obligation of international norms and protection to the environment and Human
37
38
Ray Vernon in Business and Human Rights (Harvard Law School Human Rights Program. 1999) at 49.
39
UNCTAD World Investment Report 1994 (New York and Geneva: United Nations, 1994) Ch VIII.
40
Ilias Bantekas: Corporate Social Responsibility in International Law», Boston University International Law
Journal, Vol. 309 (2004), p. 25.
41
Vivien A. Schmidt: The New World Order, Incorporated: The Rise of Business and the Decline of the Nation
State, Daedalus, Vol. 124, No. 2 (1995).
42
Charter of Economic Rights and Duties of States of 1974, Art.2, p.2 (b).
43
Kurtis F. J. Dobbler, Tashkentskiy Gosudarstvenniy Yuridicheskiy Istitut, Tashkent, 2004, p. 6
44
45

rights. Through binding treaties in which State entities are the direct addressees of rights and
obligations, but which directly affect and have a domestic impact upon transnational
corporation operations, or by means of soft law that is directly addressed to transnational
corporations.46There is some evidence from the case law under the ECHR that the state may
be under an obligation to ‘secure’ the rights of third persons against interference by a non-state
actor. Failure to do so may result in a violation of the convention.47 However, this case law is
uncertain in its scope and too much cannot be read into it. At most, it is clear that state cannot
absolve itself of its direct human rights responsibilities by giving them off to privatized entity.48
[A.2] OBJECTIVE OF INDUSTRIALIZATION
[¶17] The Republic of Tots looking upon to promote the industrial sector has led the Bargin to
exploit the resources and Bargin as the transnational corporation49 is under obligation to follow
the mandate of Republic of Tots.50 So, accepting that transnational corporations have positive
responsibilities to use its influence to promote human rights could sit uneasily with the
traditional discretion of States to make appropriate choices and exercise balance in designing
policies to fulfil human rights.51 There are four situations where an allegation of complicity
might arise against a company, one of can be when the company is silent or inactive in the face
of human rights violations.52 However, in this present case no instances can be found out where
company i.e., Bargin is silent or inactive. This issue lay at heart of recent Apartheid litigation
46
Khaydarali Yunusov, Valeriya, Husniddin Ochildiyev, Roles & Responsibilities of Transnational Corporations
with Regard to Human Rights: P-9 (University of World Economy and Diplomacy, Tashkent, Uzbekistan).
47
Young James and Webster v. UK, (1981) E Ct HR Series A vol 44; X and Y v Netherlands (1985) ECHR Series
A vol 91; Arzte für das Leben (1988) ECtHR Series A vol 139; Hatton and Others v United Kingdom judgment
ECt IIR 8 July 2003; see also, Charles Bourne 'I'm Noisy Fly Me’ New Law Journal 15 August 2003 at 1262;
Powell and Rayner v. United Kingdom ECHR App no 9310/81 (A/172); Lopez Ostra v. Spain ECHR
[1994] ECHR 46; Guerra and Others v. Italy ECHR, (1998) ECHR 7. See generally A Drzemczewski European
Human Rights Convention in Domestic Law (Oxford: Oxford University Press, 1983) ch 8; Clapham Human
Rights Obligations of Non-State Actors above n 34 at 349-420; Jagers above n 45 at 36-44 and ch VI.
48
Costello-Roberts v. UK ECHR, (1993) Series A vol 247.
49
50
The united Nation code of Conduct on Transnational Corporations, 1983.
51
Report of the Sub-Commission on the Promotion and Protection of Human Rights, ECOSOC. E/CN.4/2005/91
of 15 February 2005, pg. 31-32, www.realizingrights.org/pdf_May09.pdf .
52
Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies,
International Council on Human Rights Policy, Geneva, 2002, pg. 125-136.

in the US where this concept was rejected.53 The US District Court felt that such an extension
of ATCA liability would have serious, if not disastrous, consequences for flow of international
commerce and was not consistent with the policy of the US, and other leading powers at the
time, of constructive engagement with the Apartheid regime. It would prevent use of economic
investment as means of achieving greater respect for human rights by way of poverty reduction.
[A.3] OBJECTIVE OF REDUCTION I N TO THE PRICE OF ELECTRICITY OR ENERGY
[¶18] Bargin has helped Republic of Tots in order to fulfill intention and objective to boost the
economy in respect of reducing price of electricity or energy for industrial sector.54As Anthony
Ewing, suggests examples of responsibilities to support human rights: as to build capacity of
governments and others effectively to respect, ensure and promote human rights.55 The energy
crisis in Grump began to resolve and prices of electricity began to be reduced by as much as
15% due to such direct supply.56 Asking transnational corporations to respect the human rights
of those affected by their activities consistent with host government’s international obligations
and commitments.57 However, none of activities of Bargin is against the human rights.
[A.4] BARGIN CONTRIBUTION TOWARDS T HE CIVILIAN OF TOTS
[¶19] World summit, 2002 which mandate, in pursuit to of its legitimate activities the private
sector has a duty to contribute to the evolution of equitable and sustainable communities and
societies.58 Similarly, Principle 29 is adamant that: there is need for private sector corporations
to enforce corporate accountability, which should take place within a transparent and stable
regulatory environment.59 The European Union Parliament in its response to the Commission's
Communication concerning Corporate Social Responsibility and business contribution to
53
In re South African Apartheid Litigation 346 F Supp 2d 538; 2004 US Dist LEXIS 23944.
54
55
Anthony Ewing: Understanding the Global Compact Human Rights Principles in Embedding Human Rights
Business Practice, United Nations Global Compact / Office of the UNHCR, New York, 2004, p. 38.
56
57
OECD: Guidelines for Multinational Enterprises, Revision 2000, www.oecd.org/dataoecd/56/36/1922428.pdf
58
¶ 27, Johannesburg Declaration on Sustainable Development of 2002, World Summit on Sustainable
Development, Agenda Item No. 13, revised UN. Doc. A/ CONF.199/L.6/Rev.2/Corr.1
59
¶ 29, Ibidem, Agenda Item No. 13.

sustainable development noted the widespread and increasing recognition that undertakings
have obligations other than just making profits.60
[¶20] Preamble to UDHR proclaims, “A common standard of achievement for all peoples and
all nations, to the end that governments, other organs of society and individuals shall strive, by
teaching and education to promote respect for human rights and freedoms.”61 The Norms
attempt to impose direct responsibilities on transnational corporations as a means of reaching
comprehensive protection of all human rights civil, cultural, economic, political and social. 62
This mining site at Bargin site has ensured giving people rightful employment.63
[B] BARGIN HAS NO LIABILITY FOR VIOLATION OF ECOCIDE IN I NTERNATIONAL LAW
[¶21] It is well established that a country is liable under international law for harm caused by
the transboundary escape of airborne pollutants originating in privately owned facilities within
its borders.64There is no liability of violation of ecocide upon the Bargin, as this transnational
company is working as only tool for republic of Tots65 under its domestic law and its approval
which is granted for the necessary exploitation purposes.66 The consideration of ecocide as an
international crime is the single most powerful measure due to enlarged loss of biodiversity
around the world.67 The world leaders at UN Conference on Sustainable Development held in
Stockholm in June 2022, to stress upon the binding principles and rules for consideration of
ecocide as crime at ICC.68
[¶22] Recently on 22nd June, 2021 a group of lawyers defined ecocide as “unlawful or wanton
acts committed with knowledge that there is a substantial likelihood of severe and widespread
60
Commission of the European Communities: Report on the Communication from the Commission Concerning
Corporate Social Responsibility: A Business Contribution to Sustainable Development, Brussels 2 July 2002.
61
Preamble of Universal Declaration of Human Rights.
62
Report of the Sub-Commission on the Promotion and Protection of Human Rights, cit., On August 13 2003.
63
64
Trail Smelter Arbitration (1938, 1941) 3 RIAA 1905.
65
66
67
68
Ministry of Environment Affairs, “Stockholm-50”, (The Government Offices of Sweden, 2022),
https://www.government.se/government-policy/stockholm50/ (last visited Nov. 25, 2022).

or long-term damage to environment being caused by those acts”.69 We are dependent for our
well- being on well-being of environment and that we have to use various instruments, political,
diplomatic but legal to achieve protection of environment.70 As Art 35(3) of Additional
Protocol, I maintain that destruction of the natural environment may not be used as a weapon.71
Bargin is aware that Transnational corporations correspond to a drastically new level of
international differentiation of labour which gives the right to talk about the foundation of so-
called Transnational Law as a branch of International Economic Law within the framework of
which TNCs could hold not only rights but also obligations.72 It is evident that, where
obligations arising from sustainable development are addressed to all States and people.73
[B.1] BARGIN AS TRANSNATIONAL CORPORATION IS SUBJECT TO CONTROL OF TOTS
[¶23] As Bargin is a transnational corporation is subject to the control by the State where it is
situated74 i.e., republic of Bargin. In line with how economic, social and cultural rights are laid
out in international human rights law, the Norms require that States and corporations must work
towards accomplishment of these rights, which is distinct from the apparently more immediate
requirements under international law as to civil and political rights.75 It does not follow that
from additional sites of responsibility comes a corresponding reduction of the State’s liability
in respect of human rights protection and promotion.76 Rather, the human rights burden is both
increased in size and to some extent differently composed, as the duty to discharge is shared
out across different entities.
69
Siddique, Haroon, Legal Experts Worldwide Draw up “Historic” Definition of Ecocide, The Guardian, 22-6-
2016.
70
Sujit Bhar, A Law for Ecocide, 26-6-2021, https://www.indialegallive.com/column-news/a-law-for-ecocide/
(last visited Nov. 19, 2022).
71
International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12-8-1949, and
relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8-6-1977.
72
Y. M. Kolosov & E. S. Krivchikova: Mejdunarodnoe pravo [International Law], Uchebnik Mejdunarodnie
otnosheniya, Moscow, 2000, p. 86.
73
Rio Declaration on Environment and Development, 199, Principles 5 and 27.
74
75
Article 2, ICESCR.
76
Kinley, David “Corporate Social Responsibility and International Human Rights Law” in Mullerat, Ramon (ed)
Corporate Social Responsibility: The Corporate Governance of the 21st Century, Kluwer, P2 (on file).

[B.2] STATE OBLIGATION IN REGARDS TO VIOLATION OF INTERNATIONAL LAW
[¶24] The rights accorded to states under international law imply responsibilities, it means that
the republic of Tots also under responsibilities to protect the rights. In the “Rainbow Warrior”
case,77 the arbitral tribunal stressed that “any violation by a State of any obligation, of whatever
origin, gives rise to State responsibility”. And in this present case the republic of Tots is liable
for the violation of international law.78
[B.3] OBLIGATION UNDER DRAFT ON RESPONSIBILITY OF STATE, 2001
[¶25] Art. 1 states the basic principle underlying the articles as a whole, which is that a breach
of international law by a State entails its international responsibility. An internationally
wrongful act of a State may consist.79 For the rules governing State responsibility, as for
international humanitarian law, the legitimacy or illegitimacy of the insurrection is of no
importance but “rather, the focus must be on the particular conduct in question, and on its
lawfulness or otherwise under the applicable rules of international law”.80
[¶26] In view of the importance of the rights involved, all States can be held to have a legal
interest in their protection; they are obligations erga omnes.81 By PCIJ in the Phosphates in
Morocco case.82 The Court explicitly linked the creation of international responsibility with
existence of an “act being attributable to the State and described as contrary to treaty rights of
another State”.83 The republic of Tots is under obligation to respect the international law and
protect the rights of the its civilians beyond the economic interest.84
HENCE, BARGIN LLC IS NON-RESPONSIBLE FOR VIOLATION OF ECOCIDE UNDER
INTERNATIONAL LAW.
77
Rainbow Warrior (New Zealand v. France), 82 I.L.R. 500, 551-64 (1990).
78
79
Art.1 of Draft articles on Responsibility of States for Internationally Wrongful Acts, 2001.
80
Draft Article 10 on “Conduct of an insurrectional or other movement”.
81
Barcelona Traction (Belg. v. Spain), 3 I.C.J. (1970).
82
Phosphates in Morocco, Judgment, 74 P.C.I.J. 10, 28, (1938).
83
84

GIVEN UNDER THE ORDINANCE AND WHETHER THE PRESIDENT OF B ARGIN COMPANY
WAS LAWFULLY DETAINED, AND WHETHER H IS SUBSEQUENT DENIAL OF HIS
DIPLOMATIC RIGHTS WAS JUSTIFIED. IN T HE EVENT THEY ARE JUSTIFIED DO T HEY
DESERVE PAYMENT OF COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES IN
INTERNATIONAL LAW?
[¶27] It is humbly contended that Republic of Torts could confiscate Bargin under ordinance
and the President of Bargin Company was lawfully detained and also, the subsequent denial of
diplomatic rights is justified. To that effect, the Respondent seeks to establish that; [A] The
confiscation of property of Bargin by Republic of Tot was legally justified, [B] The President
of Bargin was lawfully detained, [C] The subsequent denial of diplomatic rights was justified,
[D] The denial of payment of compensation or apology or any other remedy is justified.
[A] THE CONFISCATION OF PROPERTY OF BARGIN BY REPUBLIC OF TOT WAS
LEGALLY JUSTIFIED
[¶28] States have a sovereign right under international law to take property held by nationals
or aliens through nationalization or expropriation for economic, political, social or other
reasons. In order to be lawful, exercise of this sovereign right requires, under international law,
that the following conditions be met:85 (a) Property has to be taken for public purpose; (b) On
non-discriminatory basis; (c) In accordance with due process of law; (d) With compensation.
[A.1] T HE ORDINANCE WAS PASSED IN ORDER TO PROTECT T HE LIFE OF THE PUBLIC
AT LARGE AND THUS WAS LEGITIMATE IN NATURE
[¶29] The 1970, UN Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in Accordance with the Charter of the United Nations
(‘the 1970 Declaration’) states ‘the principle concerning the duty not to intervene in matters
85
Energy Charter Treaty (entered into force 16 April 1998) Art 13.

within the domestic jurisdiction of any State, in accordance with the Charter’. The principle
includes the following directives: “No State or group of States has the right to intervene,
directly or indirectly, for any reason whatever, in the internal or external affairs of any other
state…”86 In the instant case it can be seen that the activities of the company named Bargin
was degrading the environment day by day.87 Customary international law acknowledges the
legitimacy of the protection of natural resources, the environment, economy and cultural
heritage.88 The protection of wildlife is widely recognized and even endorsed by international
community.89 In instant case, action of Republic of Tots contributes to each of these objectives.
[A.2] EXPROPRIATION OF PROPERTY IS NOT DENIAL TO FAIR AND EQUITABLE
TREATMENT AND WAS PROPORTIONAL T O INJURY SUFFERED
[¶30] It is an “absolute”, “non-contingent” standard of treatment, i.e., a standard that states the
treatment to be accorded in terms whose exact meaning has to be determined, by reference to
specific circumstances of application, as opposed to the “relative” standards embodied in
“national treatment” and “most favoured nation” principles which define the required treatment
by reference to the treatment accorded to other investment.90 Article 51 states that
countermeasures must be proportional to the injury suffered.91 In Consortium RFCC v.
Kingdom of Morocco,92 it was held that, “The obligation of fair and equitable treatment may
not be predetermined content but simply refers to the notions of justice and equity, understood
86
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in
accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October, 1970
(resolution 26/25 (XXV)).
87
88
Art. XIV (b) GATS regards the protection of humans, animals or plant life or health as legitimate objectives;
Art. 4 World Heritage Convention; Arts 4 (d), (e), (g) GA Res. New International Economic Order, 1974; Art. 2
(2) GA Res. Economic Rights and Duties of States, 1974; cf. preamble to the CITES.
89
Principles 2, 4 UN Declaration on the Human Environment, 1972; I. General Principles, GA Res. World Charter
for Nature, 1982; Arts 5, 6 UNESCO Declaration on the Responsibilities Towards Future Generations, 1997; cf.
Convention on Biological Diversity.
90
Nazioni Unite. Conference on trade, development and Conférence des Nations Unies sur le commerce et le
development, 1998. Bilateral investment treaties in the mid-1990s (Vol. 7).
91
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,
art. 2, Nov. 2001, Sup. No. 10 (A/56/10), chp.IV.E.1
92
¶ 51, Consortium RFCC v. Kingdom of Morocco, ICSID, case no. ARB/00/6. See also, Cambridge University
Press, Kläger, R., 2011. 'Fair and Equitable Treatment International Investment Law (Vol. 83).

objectively, and take into account the circumstances of the case.” However, in this present case
the ground for the expropriate of property is justifiable.
[B] THE PRESIDENT OF BARGIN WAS LAWFULLY DETAINED
[¶31] The republic of Tots has its own legal system for criminal and fiscal offences within its
territory. It is essential to emphasize that States are at the heart of the international legal system
and the prime subjects of international law, while the principle of the protection of the integrity
of the territorial expression of States is bound to assume major importance.93 This Court clearly
underlined that “between independent States, respect for territorial sovereignty is an essential
foundation of international relations”.94 Most states and courts presumptively view national
and international legal systems as discrete entities and routinely discuss in dualist fashion
incorporation of rules from one system to the other.95 Unlike monist counties, under the Indian
Constitution, international law does not become binding until appropriate domestic legislation
is enacted to give it effect.96 Many states have legislated for or require that the ‘availability,
effectiveness and appropriateness of alternatives to detention must be considered’.97
[B.1] GROUND FOR THE DETENTION OF PRESIDENT OF BARGIN HAS BEEN JUSTIFIED
[¶32] Essentially, detention involves the deprivation of liberty in a confined place, such as a
prison or a purpose-built closed reception or holding centre.98 Article 9 (2) of the ICCPR reads
as follows: Anyone who is arrested shall be informed, at the time of his arrest, of the reasons
for his arrest and shall be promptly informed of the charges against him.99 In Republic of
Guinea v. Democratic Republic of Congo, the Court observed that the scope of these provisions
is not confined to criminal proceedings, but apply also to any measures that deprive individuals
93
Castellino, J. and Allen, New York: Oxford University Press, Netherlands Yearbook of International Law, 13,
pp.61-91; Hill, N.L., 1945.
94
Corfu Channel Case (United Kingdom v. Albania), I.C.J. Reports 1949, pg. 244.
95
Aspen Treatise for International Law Wolters Kluwer, Janis, M.W., 2016.
96
Implementation of International Law in Indian Legal System, Sehrawat, V., 2019, 31, pg.97.
97
Sahin v. Canada, (1995) 1 FCR 214 pg. 229–31.
98
Inter-American Commission on Human Rights (IACHR), Resolution 1/08, Principles and Best Practices on the
Protection of Persons Deprived of Liberty in the Americas, 13 March 2008, No. 1/08.
99
Article 9, ICCPR.

of their liberty that are taken in the context of any administrative procedure, such as those
undertaken necessarily to remove an alien from the national territory.100
[¶33] The “reasonableness” of suspicion on which an arrest must be based forms an essential
part of the safeguard laid down in Article 5 (1)101 of ECHR.102 A “reasonable suspicion” that a
criminal offence has been committed presupposes the existence of facts or information which
would satisfy an objective observer that the person concerned may have committed an
offence.103The question whether an alien is lawfully within the territory of a State is a matter
governed by domestic law, which may subject entry of an alien to the territory of a State to
restrictions, provided they are in compliance with the State’s international obligations.104
Therefore, once a person is lawfully within a state, any restrictions on freedom of movement
or choice of residence must be judged according to aliens generally standard. Any restrictions
imposed on aliens would need to conform with international law. Art. 12(1) of ICCPR provides
for example, an exhaustive list of justifications for differential treatment in Art. 12(3). 105
[B.2] ACTION OF REPUBLIC OF TOTS IS JUSTIFIED ON THE GROUNDS OF NECESSITAS
NON HABET LEGUM
[¶34] The state of necessity constitutes a rule of customary international law.106 It includes
economic necessity,107 environmental necessity108 and considers the humanitarian situation as
100
Ahmadou Sadio Diallo, Guinea v. Congo, the Democratic Republic of the, (2012) ICJ Rep 324.
101
European Convention on Human Rights, Article 5(1).
102
Selahattin Demirtaş v. Turkey (no. 2), Application No. 14305/17; Mehmet Hasan Altan v. Turkey, Case
Number 13237/17 (2018).
103
Selahattin Demirtaş v. Turkey (no. 2), Application No. 14305/17; Ilgar Mammadov v. Azerbaijan, 15172/13
(2014); Fox, Campbell and Hartley v. the United Kingdom, (1990) 13 ECHR 157.
104
UN Human Rights Committee (HRC), CCPR General Comment No. 27: Article 12, 2 November 1999,
CCPR/C/21/Rev.1/Add.9, https://www.refworld.org/docid/45139c394.html (last visited Dec. 01, 2022).
105
Article 12, UN Human Rights Committee (HRC), CCPR General Comment No. 27, 2 November 1999,
CCPR/C/21/Rev.1/Add.9.
106
Gabčíkovo-Nagymaros Case (Hungary v. Slovakia), (1997) ICJ Rep 7.
107
¶ 214, CMS v. Argentina, ICSID Case No. ARB/01/8; ¶ 226, LG&E v. Argentina, (2007) 46 ILM 36; ¶ 322,
Sempra v. Argentina, 2007, 374; ¶ 173, Continental v. Argentina, 2008, ICSID Case No. ARB/03/9; ¶ 168, Sempra
v. Argentina, Annulment, 2010, ICSID Case No. ARB/02/16, ¶ 359, Enron v. Argentina, Annulment, ICSID Case
No. ARB/01/3; ¶ 236, Suez v. Argentina, ICSID Case No. ARB/03/19; ¶ 75, Impregilo v. Argentina, ICSID Case
No. ARB/07/17; ¶ 203, El Paso v. Argentina, ICSID Case No. ARB/03/15; ¶ 408, BG v. Argentina, 572 U.S. 25
(2014); ¶ 78, National Grid v. Argentina, IIC 361 (2008).
108
¶ 51, Gabčíkovo-Nagymaros Case (Hungary v. Slovakia), (1997) ICJ Rep 7.

a state’s primary obligation is to protect its citizens.109 The rule and its application by courts
was shaped by its codification in Art. 25 ILC DARS in 2001.110 Therefore, Republic of Tots
can rely on the element of necessity a formulated in Article 25 ILC DARS. International law
requires the act in question to be the only way to safeguard an essential interest against a grave
and imminent peril without seriously impairing another state’s essential interest.111
[B.3] THE REPUBLIC OF TOTS INTENDED T O PROTECT ITS ESSENTIAL INTEREST
[¶35] The President of Republic of Tots seeks to protect its (i) Its Environment; and (ii) Its
Citizens human rights. Safeguarding the ecological balance and the environment constitutes an
essential interest.112 The term “environment” includes wildlife.113 Environmental matters
transcend the bilateralism of international law and are global concerns.114 Safeguarding human
rights is a fundamental interest of the international community and as such is imbued with great
legitimacy.115 The economic and ecological crisis correlates with human rights infringements
such as human right to development,116 health or life.117 Protecting the population from famine
is recognized as an essential interest with regard to necessity.118 Furthermore, international
human rights law protects the people’s right to take part in cultural life, 119 and to have their
cultural heritage respected based on concept of human dignity.120
109
Sloane, AJIL, 2012, pg. 463.
110
Although not an international convention in terms of Art. 38 (1) (a), the ILC DARS represent international
custom in terms of Art. 38 (1) (b) ICJ Statute: Morton, 2000, pp. 1-5.
111
¶ 140, Gabčíkovo-Nagymaros Case (Hungary v. Slovakia), (1997) ICJ Rep 7, ¶ 355, CMS v. Argentina, ICSID
Case No. ARB/01/8, ¶ 313, Sempra v. Argentina, ICSID Case No. ARB/02/16.
112
¶ 53, Gabčíkovo-Nagymaros Case (Hungary v. Slovakia), (1997) ICJ Rep 7.
113
Article 2 (10) Convention on Civil Liability; Principles 2, 4 of the UN Declaration on the Human Environment,
1972; Johnson et al, JEQ, 1997, pg. 581 ff.
114
Proclamation 2 UN Declaration on the Human Environment, 1972; Rio Declaration on Environment and
Development, 1992, Principle 7.
115
¶ 33, Barcelona Traction, Article 55 (c), 56 UN Charter; Art. I (1) UNESCO Constitution; GA Res. Universal
Declaration of Human Rights, 1948; Ryngaert, NYIL, 2010, pg. 81, 92.
116
Declaration on the Right to Development, 1986; GA Res. Declaration on the Rights of Indigenous Peoples,
2007; Rio Declaration on Environment and Development, 1992.
117
Gabčíkovo-Nagymaros Project (Separate Opinion Weeramantry), pg. 91.
118
Ryngaert, NYIL, 2010, p. 93 citing the Neptune Case of 1797.
119
Art. 15 (1) (a) International Covenant on Economic, Social and Cultural Rights; Art. 27 GA Res. Universal
Declaration of Human Rights, 1948; GA Res. Human Rights and Cultural Diversity, 2005, para. 3.
120
Art. 22 GA Res. Universal Declaration of Human Rights, 1948; Art. 4 UNESCO Declaration on Cultural
Diversity, 2001; Francioni, MJIL, 2004, p. 1212.

[C] SUBSEQUENT DENIAL OF HIS DIPLOMATIC RIGHT WAS JUSTIFIED
[¶36] As diplomatic immunity is a fundamental principle of international relations, 121 and it
was established to promote international relations by protecting diplomats ‘from retaliation in
time of international conflicts’.122 It is contended that if the observation of the International
Court of Justice (ICJ) in the case of Democratic Republic of Congo v. Belgium,123 is taken into
account, even the mere passing of the restraining order is sufficient to constitute a violation of
the diplomat’s right to leave the territory. The textual provisions of both the VCDR and the
VCCR broadly mandate that not only foreign officials but also ‘all persons enjoying such
privileges and immunities’ have the duty to respect the laws and regulations of the receiving
state.124 So, in this present case the subsequent denial of diplomatic rights is justifiable.
[C.1] T OTS OBLIGATED TO PROTECT RIGHTS AS SOVEREIGN AND RIGHTS O F CITIZEN
[¶37] Article 1 of the Draft Declaration on Rights and Duties of States, mandate that every
State has the right to independence and hence to exercise freely, without dictation by any, other
State, all its legal powers, including the choice of its own form of government.125 Additionally,
Art. 2 mandate, every State has the right to exercise jurisdiction over its territory and over all
persons and things therein, subject to the immunities recognized by international law.126
[D] THE DENIAL OF PAYMENT OF COMPENSATION OR APOLOGY OR ANY OTHER
REMEDY IS JUSTIFIED
[¶38] An ICSID Tribunal in Goetz v Burundi127 held, irrespective of the explicit requirement
to pay compensation for expropriation contemplated by Article 4 of the Belgium–Burundi
121
De Waart, P.J., Denters, E.M. and Schrijver, N. eds., 1998. Reflections on international law from the low
countries: In honour of Paul de Waart (Vol. 29). Martinus Nijhoff Publishers.
122
Ross, M.S., 1989. Rethinking diplomatic immunity: A review of remedial approaches to address the abuses of
diplomatic privileges and immunities. Am. UJ Intl’l L. & Pol’y, 4, pg. 173.
123
The Democratic Republic of the v Belgium, Judgment, Merits, Preliminary Objections, ICJ GL No 121.
124
Article 41(1) and Article 55 (1), United Nations, Vienna Convention on Consular Relations, 24 April 1963,
https://www.refworld.org/docid/3ae6b3648.html (last visited Dec. 21, 2022)
125
Article 1, UN General Assembly, Draft Declaration on Rights and Duties of States, 6 December 1949,
A/RES/375, https://www.refworld.org/docid/3b00f1ec54.html (last visited Dec. 15, 2022).
126
Article 2, Id Draft Declaration on Rights and Duties of States.
127
Antoine Goetz et consorts v. République du Burundi, ICSID Case No. ARB/95/3

bilateral investment treaty (BIT), that the lack of compensation was not sufficient ‘to taint this
measure as illegal under international law’. The updated Canada’s model Foreign Investment
Promotion and Protection Agreement (FIPA) stipulates that it: “incorporates a clarification of
indirect expropriation which provides that, except in rare circumstances, non-discriminatory
measures designed and applied to protect legitimate public welfare objectives, such as health,
safety and the environment, do not constitute indirect expropriation and are not subject,
therefore, to any compensation requirements.”128
HENCE, IT IS HUMBLY S UBMITTED THAT THE R EPUBLIC OF TORTS COULD CONFISCATE
BARGIN UNDER THE ORDINANCE AND THE PRESIDENT OF BARGIN COMPANY WAS
LAWFULLY DETAINED AND ALSO, THE SUBSEQUENT DENIALS OF DIPLOMATIC RIGHTS
ARE JUSTIFIED AND IN THE EVENT OF THIS THEY ALSO DESERVE COMPENSATION .
ISSUE 4: WHETHER THERE EXISTS ANY RESPONSIBILITY FOR TAN TO PROVIDE
REFUGEE STATUS TO THE CITIZENS OF TOTS?
[¶39] It is humbly contended that there exists a responsibility for Tan to provide refugee status
to the citizens of Tots. To that effect, the Respondent seeks to established that; [A] Act of Tan
is against the international Human Right Law, [B] Republic of Tan is the signatory of the
United Nation, [C] Action of violates the provision of ICCPR, [D] Republic of Tan fails to act
in accordance with international obligation, [E] Republic of Tan failed to act per the norms of
civilized state, [F] Principle of Non-refoulement and Obligation of Erga Omnes applied in the
instant case and [G] Refugee convention is applicable even in the absence of domestic law.
[A] ACT OF TAN IS AGAINST THE INTERNATIONAL HUMAN RIGHT LAW
[¶40] Human Rights have acquired a customary status in International Law.129 Custom in
principle requires to be established, both consistent State practice and evidence of a belief that
128
International Investment Law: A Changing Landscape, ISBN 92-64-01164-1, OECD 2005
129
L. Henkin, The Age of Rights 19 (1990).

this practice is obligatory by rule of law (opinio juris sivenecessitis).130 Under CIL ‘refugees’
are granted a status of subsidiary protection and are essentially provided with rights as set forth
in 1951 Refugee Convention.131 Refugees are people who have forced to leave their traditional
habitat, temporarily or permanently, b/c of environmental disruption which seriously affects
quality of their life.132 The mass migration of people from Tots was a result of oil environmental
degradation which had adverse effect on economy and health of on these people.133 Tan failed
to accord status of ‘environmental refugees’ which is in violation of international law.
[B] REPUBLIC OF TAN IS THE SIGNATORY OF THE UNITED NATION
[¶41] Tan have signed Convention Relating to the Status of Refugees of 1951, they have also
agreed to extend relevant rights to refugees in accordance with international human rights
obligations.134 Tan, being a party to the 1951 Refugee Convention and its Protocol, has a duty
to comply with all the obligations under international law. The said convention lays down that
the States must facilitate UNHCR or any other agency of the UN in exercising their functions
and facilitate its duty of supervising the application of the provisions of the present Protocol.135
[C] A CTION OF VIOLATES THE PROVISION OF ICCPR
[¶42] Art. 6 of ICCPR prohibits a Contracting Party from refusing a person to a country where
he or she faces a real risk of irreparable harm as contemplated under Arts. 6 or 7. 136 Art. 6
preserves the inherent right to life of every individual; while Art. 7 protects an individual from
torture or cruel, inhuman or degrading treatment.137 The intentional razing of settlements with
the consent or acquiescence of a public official constitutes cruel, inhuman or degrading
130
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J. Rep.
1969 (Feb. 20), pg. 3.
131
Convention relating to the Status of Refugees (Geneva, 28 July 1951) 189 UNTS 137, entered into force 22
April 1954.
132
Essam-El-Hinnawi, Environmental Refugees 41 (UNEP 1985).
133
¶ 12, Moot Proposition
134
Frances Nicholson and Judith Kumin, A guide to international refugee protection and building state asylum
systems - Handbook for Parliamentarians, UNHCR 16 2017, https://www.unhcr.org/3d4aba564.pdf .
135
Protocol Relating to the Status of Refugees art 2, Jan. 31 1967, 606 U.N.T.S. 267.
136
International Covenant on Civil and Political Rights art. 6, Dec. 16, 1996, 999 U.N.T.S. 171.
137
International Covenant on Civil and Political Rights Article 7, Dec. 16, 1996, 999 U.N.T.S. 171.

treatment; as prohibited under Art. 7.138 In the present case the action of Tan is in the clear
violation of article 6 and article 7 of ICCPR.
[D] TAN FAILS TO ACT IN ACCORDANCE WITH INTERNATIONAL OBLIGATION
[¶43] A State owes international obligations to the whole world or to all alike, obligations
ergaomnes.139 It is an obligation ergaomnes of a State to protect everyone under their
jurisdiction, including non-citizens and those with specific needs.140 A non-citizen is any
individual who is not a national of a State in which he or she is present.” Migrants Tots are
non-citizens of Republic of Tan. Republic of Tan does not provide status of refugee status to
the citizens of Tots.141 This act amounts to breach of international law.
[E] REPUBLIC OF TAN FAILED TO ACT PER T HE NORMS OF CIVILIZED STATE
[¶44] All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law.142 A refugee, is a person who has fled their own country because
they are at risk of serious human rights violations.143 The State has a duty to provide Refugees,
lawful residence, to accord the most favourable treatment as of the foreign nationals in their
territory144 and to provide the right to engage in wage earning employment.145 Everyone who
works has the right to just and favourable remuneration ensuring existence worthy of human
dignity.146 Every person has a right to fair wages with equal pay for equal work, which is
sufficient to provide a decent living for workers147 In United States v. Iran.,148 it was delivered
that, principles underlying the Conventions are recognized by civilized States which are
138
Hajrizi Dzemajl v. Yugoslavia, Complaint No. 161/2000.
139
Belgium v. Spain, Judgment, I.C.J. Rep. 1970 (Feb. 5), pg. 3.
140
Alice Edwards, Human Security & Non-Citizens: Law, Policy & International Affairs 536 (2010).
141
¶ 12, Moot Proposition
142
Article 26, International Covenant on Civil and Political Rights (New York, 16 Dec. 1966) 999 UNTS 171 and
1057 UNTS 407, entered into force 23 Mar. 1976.
143
Amnesty International, https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/ ,
(last visited October 18, 2022).
144
Article 24(1), Convention relating to the Status of Refugees (1951 Refugee Convention) 189 UNTS 137, 1954.
145
Article 17(1), 1951 Refugee Convention.
146
Article 23, UDHR.
147
Article 7, International Covenant on Economic, Social and Cultural Rights (New York, 16 Dec. 1966).
148
United states Diplomatic and Consular Staff in Tehran, I.C.J. Reports 1980, pg. 42.

binding on States, even without any conventional obligation. In Essien v. The Republic of The
Gambia and Anr.,149 it was held that human rights are political, social, economic and cultural
rights, rights falling under these breakdowns of human rights are justiciable.150 In Chahal v.
The United Kingdom,151 government issued an expulsion order on grounds of destruction of
public order and threat to National Security. Court held that such expulsions cannot be justified.
[F] PRINCIPLE OF NON -REFOULEMENT AND O BLIGATION O F ERGA O MNES APPLIED
IN THE INSTANT CASE
[¶45] The principle of non-refoulement precludes states from returning individuals to countries
where they might face life degradation, must act as the final bulwark of international
protection.152 This principle has been affirmed under Art. 33 of the 1951 Refugee Convention
and the 1967 Protocol relating to the Status of Refugees.153 The ICJ in the Barcelona Traction
Case had opined that erga omnes partes obligations are obligations of a State towards the
international community as a whole which are ‘the concern of all States’ and for whose
protection all States have a ‘legal interest’.154 Erga Omnes obligations have further been
defined in the Institute of International Law Resolution on Obligations and Rights erga omnes
in International Law under Art. 1(a) as general principles of international law which a state
owes at large to the international community.155 In the instant case appellant have an erga
omnes obligation for the principle of non-refoulement.
[G] REFUGEE CONVENTION IS APPLICABLE EVEN IN THE ABSENCE OF DOMESTIC LAW
[¶46] Tan is a signatory to the 1951 Refugee Convention & its 1967 protocol.156 Article 33(1)
of the Convention lays down the rule of non-refoulement. Accordingly, no state shall return a
149
Essien v. The Republic of The Gambia and Anr., (2007) AHRLR 131 (ECOWAS 2007).
150
Oliver De Schutter, International Human Rights Law, 32 (Cambrige University Press).
151
Council of Europe: European Court of Human Rights, 15 November 1996.
152
Rosemary, B., The Safe Country Notion in European Asylum Law, 9 Harv. Hum. Rights J. 187 (1996).
153
Article 2, Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267.
154
Belgium v. Spain, 1970 I.C.J. 3, 6 (Feb. 5).
155
Institute of International Law Res. 71(2) Ann IDI 286, Obligations and Rights Rrga Omnes in International
Law (Oct., 2005).
156
¶ 17, Moot Proposition.

refugee to where his freedom or life would be threatened on the grounds of membership to a
particular social or political group, race, religion, nationality etc.157 In dualist nations, being a
signatory does not mean automatic entry into force of the treaty, but consistency in the attitude
of domestic courts and administrative practice.158 Furthermore, it has been held in various
decisions that principles accepted as part of Customary International Law, 159 and not
contradictory to Municipal Law, shall be incorporated by Courts into domestic law.160 Mere
absence of domestic legislation thus does not prevent Tan from being bound to act as per object
and purpose of Refugee Convention.161 A State is said to be indirectly committing torture, by
sending a person back to the concerned country where he/she is subjected to cruel treatment.162
HENCE, IT IS HUMBLY S UBMITTED THAT THERE EXISTS A RESPONSIBILITY FOR TAN TO
PROVIDE REFUGEE STATUS TO THE CITIZENS OF TOTS.
ISSUE 5: WHETHER TOTS IS RESPONSIBLE FOR ENVIRONMENTAL HARM DONE TO T HE
COASTAL AND C ORAL REEF-RICH REGION OF THE REPUBLIC OF GRUMP?
[¶47] It is humbly contended that Tots is not responsible for environmental harm done to the
coastal and coral reef-rich region of the Republic of Grump. To that effect, the Respondents
seeks to establish that; [A] Tots has met the standard of due diligence, [B] Tots has conducted
itself in consistent with international law in exploiting its own natural resources, [C] Tots is
not liable under the “Fault liability” regime, [D] The “strict liability” regime does not apply
against Tots in the instant case and [E] Tots complied with the Precautionary Principles.
157
Article 33(1) of the Refugee Convention, 1951.
158
Peter Malanczuk, International Law and Municipal Law, Akehurst’s Modern Introduction to International Law,
7th Revised Edition, (New York: Routledge, 1997), chapter 4, p. 65.
159
160
Vellore Citizens Welfare forum v. Union of India, (1996) 5 SCC 647: AIR 1996 SC 2715; Vishaka v. State of
Rajasthan, (1997) 6 SCC 241.
161
Maganbhai Ishwarlal Patel v. Union of India, (1970) 3 SCC 400.
162
David Weissbrodt & Isabel Hortreiter, The Principle of Non-Refoulement: Article 3 of the Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non
Refoulement Provisions of Other International Human Rights Treaties, 5 Buff. Hum. Rts. L. Rev. 1, 18 (1999) pg
61-62.

[A] TOTS HAS MET THE STANDARD OF DUE DILIGENCE
[¶48] Whether has a State acted in consistent with the due diligence163 obligation is recognized
as a test when determining an obligation of causing transboundary harm by the customary
law,164 which further states that a due diligence is a duty of conduct rather than result. 165
Therefore, a state shall be regarded as has fulfilled the duty of due diligence if it has make the
best effort to minimize the risks considering its economic conditions, the successful prevention
of the harm is not required.166 Several elements are set when classify the duty of due diligence,
i.e., the assessment of risk and the cooperation with other states.167 In complying with a state’s
duty to prevent transboundary harm, the standard of conduct required to be observed is due
diligence.168 Due diligence is addressed by reasonable efforts to take appropriate measures in
a timely manner.169 Thus, state becomes responsible under international law if it fails to take
necessary measures to address the harm.170 Due diligence leaves room for States to determine
which measures are necessary, appropriate, feasible and available within their capacities to
achieve given objective.171 In Casu, Tots had taken due diligence as an extensive Environment
Impact Assessment has been conducted172 before Auctioning process of coal mine.173
[A.1] T OTS HAS NOT BREACHED ITS OBLIGATION UNDER CUSTOMARY
INTERNATIONAL LAW OF NOT CAUSING TRANSBOUNDARY HARM
163
J. Cameron and J. Abouchar, ‘Precautionary Principle: A Fundamental Principle of Law and Policy for the
Protection of Global Environment’, (1991) 14(1) Boston College International Comparative Law Review 1–27.
164
Pulp Mills Case, 2010 I.C.J. pg. 55-56; Malcolm N. Shaw, International Law, 6th Ed., Cambridge Press 2008.
165
Report of the International Law Commission, UN GAOR, 49th Sess., Supp. No.10, at 195, 237, UN Doc.
A/49/10 (1994) (49th ILC Report).
166
Report of the International Law Commission on the Work of its Fifty-Third Session (2001), 150-51, U.N. Doc.
A/56/10 (56th ILC Report).
167
Prevention of Transboundary Harm from Hazardous Activities, Article 2, U.N. Doc. A/56/10 (2001);
Stockholm Declaration, Principle 24; Rio Declaration, Principle 7, 18; Lake Lanoux, para 314.
168
Convention on Biological Diversity, 1992, art.3, 31 I.L.M. 818; Stockholm Declaration on the Human
Environment, Prin.21, U.N. Doc. A/CONF.48/14/Rev.1 (1973); Rio Declaration on Environment and
Development, Prin.2, U.N. Doc. A/CONF.151/26 (1992).
169
53rd ILC Report.
170
Pulp Mills, 2010 I.C.J. pg. 55-56.
171
Xue Hanqin, Transboundary Damage in International Law, Cambridge Studies in International And
Comparative Law 164 (Cambridge University Press, 2003).
172
173

[¶49] The obligation not to cause transboundary harm has been acknowledged as customary
international law.174 To constitute a violation of this rule, not only a physical relationship
between the activity concerned and the damage caused needs to be established, 175 but the
threshold of the harm caused which allows claims to be brought also should reach the standard
of “significant”.176 Besides, even if the transboundary harm exists, the inobservance of the due
diligence obligation on the part of the accused State must be established.177 There are no agreed
international standards that establish a threshold for environmental damage which triggers
liability,178 but it is believed that since all human activity alters environment, it is necessary to
determine proper threshold transboundary harm.179 In instant case, due diligence was observed
as extensive Environmental Assessment was done.180
[A.2] EVEN I F THE TRANSBOUNDARY HARM IS SIGNIFICANT, TOTS HAS ACTED IN
CONSISTENT WITH THE DUE DILIGENCE OBLIGATION
[¶50] The test of due diligence is generally accepted as the most appropriate standard to assess
the obligation of not causing significant transboundary harm.181 The Court of International
Justice also recognized this test in the 2010 Pulp Mills case.182 The duty of due diligence is an
obligation of conduct, not an obligation of result.183 It is not intended to guarantee that
significant harm is totally prevented, but only that the State concerned exerts its best possible
efforts to minimize the risk.184 In the case in hand, the due diligence has been taken by Tots
174
Legality of the Threat or Use of nuclear weapons, Advisory Opinion, I.C.J. 226 (1996).
175
O. Schachter, International Law in Theory and Practice, at 336-368 (Brill Academic Publishers 1991); Tim
Stephens, International Courts and Environmental Protection, at 134 (Cambridge U. Press 2009).
176
Report of the International Law Commission, UN GAOR, 56th Sess., Supp. No. 10, at 150-151, UN Doc.
A/56/10 (2001) (56th ILC Report); Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. at 4, 22.
177
Pulp Mills Case (Argentina v. Uruguay), 2010 I.C.J. pg 55-56.
178
Philippe Sands, Principles of International Environmental Law, at 878 (2nd ed. Cambridge U. Press 2003).
179
Alexandre Kiss & Dinah Shelton, International Environmental Law, at 269 (2nd ed. Transnational Publishers
Inc. 2000); Trail Smelter Arbitral Decision (U.S. v. Canada), 3 R.I.A.A. (1938/1941)
180
181
Malcolm N. Shaw, International Law, at 855 (6th ed., Cambridge U. Press 2008).
182
Pulp Mills Case, 2010 I.C.J. at 55-56; Lac Lanoux (France v. Spain), 12 R.I.A.A. 281 (1957).
183
Report of the International Law Commission, UN GAOR, 49th Sess., Supp. No. 10, at 195, 237, UN Doc.
A/49/10 (1994) (49th ILC Report).
184
Report of the International Law Commission, UN GAOR, 56th Sess., Supp. No. 10, at 155, UN Doc. A/56/10
(2001) (56th ILC Report).

time to time like by conducting Environmental Impact Assessment and by stopping all the
mining and exploration activities of Bargin LLC with immediate effect.185
[B] TOTS HAS CONDUCTED ITSELF IN CONSISTENT WITH INTERNATIONAL LAW IN
EXPLOITING ITS OWN NATURAL RESOURCES
[B.1] THE OBLIGATION TO CONSERVE BIODIVERSITY IS NOT ERGA O MNES
[¶51] Article 3 applies the customary law186 of a state’s sovereign right to use its natural
resources187 pursuant to its national environmental policies.188 The power to exploit natural
resources within a State’s territory189 embraces the power to control its use.190 The obligations
erga omnes have been recognized in the Barcelona Traction case, which is referred to as the
obligations of a State towards the international community as a whole.191 Meanwhile,
obligations erga omnes may also derive from dispositive rules of international law.192 Some
factors may be considered when deciding whether the obligations could be deemed sufficiently
important to achieve the status of erga omnes,193 for instance, its recognition in treaties,
preferably universal treaties.194 The obligation to conserve biodiversity is highlighted in the
CBD, it has been recognized as the common concern of all human kind.195
[¶52] Considering the jurisprudence on this norm, the most widely accepted and recognized
obligations erga omnes includes the prohibitions of aggression, genocide, slavery, racial
discrimination, crimes against humanity and torture, and the right to self-determination.196 All
185
186
Rio Declaration on Environment and Development, prin.2, U.N Doc A/CONF.151/5/Rev.1 (1992) [Rio].
187
UN General Assembly, Res.1803 (XVII), 14 Dec.1962.
188
Article 3, Convention on Biological Diversity, 1992.
189
Declaration of the United Nations Conference on the Human Environment, prin.21, U.N. Doc. A/CONF.48/
14/Rev.1 (1972).
190
Simmons, On the Territorial Rights of States, Philosophical Issues: Social, Political and Legal Philosophy,
vol.11 (2001) 321; Cassesse, International Law, 88-89 (2001).
191
Barcelona Traction Case (Belgium v. Spain), 1970 I.C.J. para. 33-34.
192
Commentary on the Articles on State Responsibility, Rep. of the Int’l Law Comm’n, 53rd Sess., Apr. 23–June
1, July 2–Aug. 10, 2001, 202-03, UN Doc. A/56/10; GAOR, 56th Sess., Supp. 10 (2001).
193
Christian J. Tams, Enforcing Obligations Erga Omnes in International Law, at 153 (Cambridge U. Press 2005).
194
East Timor Case (Portugal v. Australia), 1995 I.C.J. (Weeramantry, dissenting), pg. 194, 196 and 213-216.
195
Preamble, Convention on Biological Diversity, Principle 3, 31 I.L.M. 818 (1992).
196
Portugal v. Australia, 1995 I.C.J. 90; ILC Commentary on the Draft Articles on Responsibility of States,
Yearbook of the International Law Commission, 2001, vol. II (Part Two), at 85.

obligations erga omnes involved are in the strict sense of the term, to the exclusion of other
fundamental legal conceptions, and the obligations are essentially prohibitions rather than
positive obligations with no derogation.197 However, outside the human-rights context,
international courts have made little use of the concept of erga omnes obligations.198 The
Court’s statement concerning the dictum of erga omnes raised in the Barcelona Caseis that the
obligation is “towards the international community as a whole” and “all States can be held to
have a legal interest in their protection”.199 This statement indicates that it is not the individual
State but rather the international community as a whole which is bearer of a right to response.200
[B.2] TOTS HAS T HE SOVEREIGN RIGHT TO E XPLOIT ITS NATURAL R ESOURCES I N
ACCORDANCE WITH ITS OWN POLICY
[¶53] 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 and developmental policies.201 As the right to development is an inalienable
human right,202 States have the right and the duty to formulate appropriate development
policies to make improvements of the well-being of the entire population. International law
requires States to conduct environmental impact assessments for evaluating the likely impact
of a proposed activity on the environment.203 Tots has conducted the environmental impact
assessment before the exploitation to avoid or minimize adverse impacts on biological
diversity204 which shows that Tots has not violated any international law.
197
Maurizio Ragazzi, The Concept of International Obligations Erga Omnes, at 153 (Clarendon Press 1997).
198
Birnie & Boyle, International Law and the Environment, at 131(2nd ed. Oxford U. Press 2002).
199
¶ 33, Barcelona Traction Case, 1970 I.C.J.
200
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia-Herzegovina v. Yugoslavia), 1996 I.C.J. Judge Oda's Declaration 626, para.4; Case Concerning East
Timor (Portugal v. Australia), 1995 I.C.J. Australian counter-memorial, para.263.
201
Convention on Biological Diversity, Principle 3, 31 I.L.M. 818 (1992); Convention on Wetlands of
International Importance especially as Waterfowl Habitat, 2 February 1971, U.N.T.S. 14583.
202
Declaration on the Right to Development, Article 1, GA Res. 41/128, Annex, 41 UN GAOR Supp. No. 53 at
186, UN Doc. A/41/53 (1986).
203
Convention on Biological Diversity, 1992, Principle 3, 31 I.L.M. 818 (1992); Neil Craik, The International
Law of Environmental Impact Assessment, at 135 (Cambridge U. Press 2008).
204

[C] TOTS IS NOT LIABLE UNDER THE “FAULT LIABILITY” REGIME
[¶54] Fault liability requires that a conduct be proved as intentional, negligent or reckless in
order to impute liability.205 Under this regime the State is not an absolute guarantor of the
prevention of harm, and compliance with due diligence negates all liability.206 Tots has
complied with all/any due diligence obligation207 and can’t held liable for harm caused.208
[C.1] STRINGENT ACTIONS WERE TAKEN AGAINST RESPONSIBLE PERSONNEL
[¶55] Tots took strict action against company by passing an ordinance for the nationalization
of the Bargin LLC and criminal sanctions were also brought into place for the key managerial
persons. All mining and exploration activities were stopped with immediate effect.
[D] THE “STRICT LIABILITY” REGIME DOES NOT APPLY AGAINST TOTS
[¶56] Even when there exists a likelihood of damage, a state can undertake the proposed
activity provided it complies with certain mitigating measures.209 Strict liability is not accepted
as a general rule of international law.210 The general applicability of strict liability was
concluded to be an unwarranted intrusion upon liberty of action of sovereign States, 211 except
by way of mutual agreement.212 Only ultra-hazardous activities are identified as a distinct
category for which strict liability is an exceptional principle213 which is not present.214
[E] TOTS COMPLIED W ITH THE PRECAUTIONARY PRINCIPLES
[¶57] A/C to Article 15 in Precautionary Principle: protecting health, environment & future of
our children, effective approach to applying precautionary principle in these areas can be based
205
Corfu Channel (U.K. v. Alb.), Merits, 1949 I.C.J. 4, 18 (Apr. 9) at 72 (Dissenting opinion of Judge Krylov).
206
Mr. Pemmaraju Sreenivasa Rao, Special Rapporteur, ILC, Prevention of Transboundary Damage from
Hazardous Activities, 2(1) Y.B.INT’L.L. COMM’N 111, at 118, UN Doc. A/CN.4/501, (1999).
207
¶ 5 & 15, Moot Compromise.
208
209
Mr. Julio Barboza, Special Rapporteur, ILC, Second Report on International Liability for Injurious
Consequences Arising out of Acts not Prohibited by International Law, 2(1) Y. B. INT’L L. COMM’N. 145.
210
Handle, State Liability for Transnational Environmental Damage by Private Person, 74 AM.J. 525 (1980).
211
ILC, Third Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by
Int. Law, by Mr. Robert Q. Quentin-Baxter, Special Rapporteur, 2(1) Y.B. INT’L. L. COMM’N 51 (1982).
212
Trail Smelter Arbitration (U.S. v. Canada.), 3 R.I.A.A. 1905; Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 18.
213
Birnie Et. Al., International Law And The Environment 218 (2 nd ed. 2004).
214

on policy actions, such as increasing the transparency of decision-making.215 Article 15 also
illustrates that applying this priciple also in need of scientific research. Rio Declaration claims
that precautionary approach shall be applied by States according to their capabilities.216 Tots
did follow precautionary principles based on fact that it conducted an extensive Environment
Impact Assessment217 before it started the auction.
[E.1] TOTS HAS C ONDUCTED AN EIA AS PER I NTERNATIONAL OBLIGATIONS
[¶58] As there is no international standard for an EIA, it is “subject to decision of a competent
national authority” and must be determined by “domestic legislation.”218 Tots has carried out
an EIA in accordance with domestic legislation219 complying with international obligations.220
[E.2] ACTIONS OF T HE COMPANY ARE NOT THE ACTIONS OF T HE STATE
[¶59] A state is not required to prevent all significant transboundary harm,221 as the principle
of “due diligence” applies222: a state must take the normal standard of care, meaning that
sufficient procedures must be in place to prevent environmental harm and these procedures
must be implemented by the state (see, ICJ 2010 Argentina v. Uruguay)223. Thus, while “do-
no-harm principle” has been recognized as customary international environmental law, 224 a
state is in principle only liable for environmental harm as a result of its active disposition.225
HENCE, IT IS SUBMITTED THAT TOTS IS NOT RESPONSIBLE FOR ENVIRONMENTAL HARM
DONE TO THE COASTAL AND CORAL REEF-RICH REGION OF REPUBLIC OF GRUMP.
215
The precautionary principle: protecting public health, the environment and the future of our children, World
Health Organization 2004, Article 15.
216
Rio Declaration, 1992, Principle 15.
217
218
Plant (Ireland v United Kingdom) Provisional Measures, Order of 3 December 2001.
219
220
H.S. Burnett, ‘Understanding the Precautionary Principle and its Threat to Human Welfare’ (2009) 26(2) Social
Philosophy and Policy 378–410.
221
Rieu-Clarke, A., 2020, International Environmental Agreements: Politics, Law and Economics, 20(4), pg. 667.
222
Tehran Hostage Case, ICJ Reports (1980).
223
Argentina v. Uruguay, ICJ GL No 135.
224
¶ 53, Responsibility v. Sovereignty, ICJ Rep. 1997 41.
225
Takano, A., 2018, Due diligence obligations and transboundary environmental harm: cyber security
applications. Laws, 7(4), pg. 36.

PRAYER
It is hereinafter humbly prayed before this Hon’ble Court that in the light of issue raised,
argument advanced, authorities cited and pleadings made, the Hon’ble Court may be pleased
to adjudge and declare that:
1. The Court has jurisdiction over only such limited jurisdiction which is non derogatory
to Tots Sovereignty.
2. Bargin LLC is not responsible for ensuring human rights and protection of environment
and can’t be held accountable for Ecocide or any other international harm.
3. The expropriation of property and arrest was well entailed under the Municipal Laws
of Tots and is not within jurisdiction of this court.
4. There exists responsibility for Tan to provide refugee status to the citizens of Tots.
5. Tots is not responsible for environmental harm done to the coastal and coral reef-rich
region of the Republic of Grump.
AND / OTHERWISE
PASS ANY OTHER ORDER OR DIRECTION T HAT THIS HON’BLE COURT MAY DEEM FIT
IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE
FOR THIS ACT OF KINDNESS, THE COUNSELS SHALL FOREVER PRAY
IN RESPECTFUL SUBMISSION BEFORE THE INTERNATIONAL COURT O F JUSTICE
ALL OF WHICH IS RESPECTFULLY AFFIRMED AND SUBMITTED
X_________________
AGENT(S) ON BEHALF OF THE RESPONDENT
MEMORANDUM ON BEHALF OF THE RESPONDENT XXVI | PAGE

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PROF. N. R.

MADHAVA MENON GLOBAL MOOTING COMPETITION, 2023

TC: GJC8011 (R)

PROF. N. R. MADHAVA MENON GLOBAL MOOTING COMPETITION, 2023

15TH – 18TH FEBRUARY, 2023

IN THE INTERNATIONAL COURT OF JUSTICE

UPON SUBMISSION TO THE HON’BLE JUSTICES OF THE

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MEMORANDUM ON BEHALF OF THE RESPONDENT 1 | PAGE

TABLE OF CONTENTS ................................................................................................ I - II

LIST OF ABBREVIATIONS ……………….………………..……….……..………..…. III - V

INDEX OF AUTHORITIES ..................................................................................... VI – XIX

STATEMENT OF JURISDICTION ……………………………..……..……..………...…... XX

STATEMENT OF FACTS ....................................................................................XXI - XXII

STATEMENT OF ISSUES ........................................................................................... XXIII

SUMMARY OF PLEADINGS ............................................................................ XXIV - XXV

ISSUE 1: W HETHER THE PRESENT CLAIM IS MAINTAINABLE BEFORE ICJ?...............1- 6

[A] THE ICJ HAS NO JURISDICTION OVER THE PRESENT DISPUTES………………………..1

[B] TOTS RECOGNIZES ICJ JURISDICTION ON CONDITION OF RECIPROCITY…………..…..2

[D] THE STATE HAS EXCLUSIVE JURISDICTION TO DETERMINE VIOLATIONS IN CASE OF

CONFLICT UNDER PRIVATE INTERNATIONAL LAW ……………………………………..…..4

RIGHTS AND THE PROTECTION OF ENVIRONMENT ? WHETHER BARGIN CAN BE HELD

ACCOUNTABLE FOR ECOCIDE OR ANY OTHER INTERNATIONAL HARM UNDER

[B] BARGIN HAS NO LIABILITY FOR VIOLATION OF ECOCIDE IN INTERNATIONAL LAW…10

WAS LAWFULLY DETAINED, AND WHETHER HIS SUBSEQUENT DENIAL OF HIS

MEMORANDUM ON BEHALF OF THE RESPONDENT I | PAGE

DESERVE PAYMENT OF COMPENSATION AND APOLOGY OR ANY OTHER REMEDIES I N

[A] CONFISCATION OF B ARGIN PROPERTY BY REPUBLIC OF TOT IS LEGALLY JUSTIFIED ..13

[B] THE PRESIDENT OF BARGIN WAS LAWFULLY DETAINED ………………………….....15

[C] THE SUBSEQUENT DENIAL OF DIPLOMATIC RIGHTS WAS JUSTIFIED………………...18

[D] DENIAL OF COMPENSATION OR APOLOGY OR ANY OTHER REMEDY IS JUSTIFIED......18

ISSUE 4: WHETHER THERE EXISTS ANY RESPONSIBILITY FOR TAN TO PROVIDE

REFUGEE STATUS TO T HE CITIZENS O F TOTS?...................................................... 19 - 23

[A] ACT OF TAN IS AGAINST THE INTERNATIONAL HUMAN RIGHT LAW…………………19

[B] REPUBLIC OF TAN IS THE SIGNATORY OF THE UNITED NATION……………………..20

[C] ACTION OF VIOLATES THE PROVISION OF ICCPR………………………………...….20

[D] REPUBLIC OF TAN FAILS TO ACT AS PER INTERNATIONAL OBLIGATION………….…21

[F] PRINCIPLE OF NON-REFOULEMENT AND OBLIGATION OF ERGA OMNES APPLIES..….22

[G] REFUGEE CONVENTION IS APPLICABLE EVEN IN ABSENCE OF DOMESTIC LAW….….22

ISSUE 5: WHETHER T OTS IS RESPONSIBLE FOR ENVIRONMENTAL HARM DONE T O THE

COASTAL AND CORAL REEF-RICH REGION OF THE REPUBLIC OF GRUMP?......... 23 - 29

[A] TOTS HAS MET THE STANDARD OF DUE DILIGENCE………………………………....24

[B] TOTS HAS CONDUCTED ITSELF IN CONSISTENT WITH INTERNATIONAL LAW IN

EXPLOITING ITS OWN NATURAL RESOURCES……………………………………………..26

[C] TOTS IS NOT LIABLE UNDER THE “FAULT LIABILITY ” REGIME……………………...28

[E] TOTS COMPLIED WITH THE PRECAUTIONARY PRINCIPLES …………………………...28

PRAYER .................................................................................................................. XXVI

MEMORANDUM ON BEHALF OF THE RESPONDENT II | PAGE

SERIAL NO. ABBREVIATION EXPANSIONS

MEMORANDUM ON BEHALF OF THE RESPONDENT III | PAGE

27. EEZ EXCLUSIVE ECONOMIC ZONE

MEMORANDUM ON BEHALF OF THE RESPONDENT IV | PAGE

51. OHCHR OFFICE OF THE UNITED NATIONS HIGH

MEMORANDUM ON BEHALF OF THE RESPONDENT V | PAGE

I. INTERNATIONAL AND NATIONAL LEGAL INSTRUMENTS

SERIAL I. INTERNATIONAL AND NATIONAL LEGAL INSTRUMENTS PG. N O.

1. CHARTER O F ECONOMIC RIGHTS AND DUTIES OF STATES O F 6, 7 & 14

2. CONVENTION ON BIOLOGICAL DIVERSITY, 1992 3 & 14

3. CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED 14

4. CONVENTION ON POLITICAL ASYLUM, 1933 5