team code: 213 the international court of justice · 2nd vivekananda institute of professional...

2ND

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES INTERNATIONAL LAW MOOT COURT COMPETITION 2014

TEAM CODE: 213

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

2ND

VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES INTERNATIONAL LAW MOOT

COURT COMPETITION 2014

CASE CONCERNING VIOLATION OF THE SANGALA – JOSHEN PACT 1999

STATE OF SANGALA

(APPLICANT STATE)

V.

STATE OF JOSHEN

(RESPONDENT STATE)

SUBMITTED IN THE REGISTRY OF THE COURT

MEMORIAL FOR THE APPLICANT

TABLE OF CONTENTS WRITTEN SUBMISSION ON BEHALF OF SANGALA

I

TABLE OF CONTENTS

LIST OF ABBREVIATIONS - - - - - - - - IV

INDEX OF AUTHORITIES - - - - - - - - V

STATEMENT OF JURISDICTION - - - - - - - X

STATEMENT OF FACTS - - - - - - - - XI

QUESTIONS PRESENTED - - - - - - - - XIII

SUMMARY OF PLEADINGS - - - - - - - - XIV

PLEADINGS - - - - - - - - - - 1

I. JOSHEN HAS VIOLATED THE SANGALA-JOSHEN PACT 1999 BY DISCONTINUING THE

SUPPLY OF IRON ORE AND THEREFORE SANGALA IS ENTITLED TO SEEK COMPENSATION FROM

JOSHEN.

A. Joshen has violated Treaty obligations - - - - - 1

1. Breach of Bilateral Treaty Obligation by Joshen - - - 1

2. Joshen’s unilateral denunciation is against the provisions of VCLT - 3

3. Joshen has the obligation to perform the Sangala-Joshen Pact 1999 3

B. Sangala is entitled to seek compensation from Joshen for violating the Sangala-

Joshen Pact 1999 - - - - - - - - 5


II

II. RESERVATIONS TO ARTICLE 1 AND 23 ARE INCOMPATIBLE TO ICCPR AND

THEREFORE ARE NULL AND VOID IN ACCORDANCE WITH INTERNATIONAL LAW- 5

A. Reservation to article 1 of ICCPR is an impermissible reservation. - 5

1. Claim of Permanent sovereignty on natural resources by Joshen is invalid-

- - - - - - - - - - -6

2. Right of citizens of Joshen on natural resources cannot be impaired in order to

fulfill the international obligation. - - - - - 7

B. Reservation to article 23 of ICCPR infringes basic human right to marriage and to

form a family. - - - - - - - - 8

III. JOSHEN HAS VIOLATED THE INTERNATIONAL LAW BY ATTACKING THE STEEL

INDUSTRIES OF SANGALA- - - - - - - 10

A. The interference of Joshen in Sangala’s internal affairs by attacking its steel

industries violated the sovereignty and integrity of Sangala - - 10

1. Joshen violated sangala’s sovereignty and integrity. - - 10

2. Joshen violated 4th Geneva convention relative to the Protection of Civilian

Persons in Time of War, 1949 by attacking steel industries. - 11

3. Sangala has the Right to protect its citizens abroad - - 12

B. Sangala has jurisdiction to try and punish General Mathuk and there was no

obligation to return him to Joshen. - - - - - - - 13

C. Joshen is liable to pay compensation for attack on steel industries- - 14


III

IV. JOSHEN HAS VIOLATED INTERNATIONAL HUMAN RIGHTS BY DENYING RIGHT TO

DEVELOPMENT OF ITS CITIZENS WHICH RESULTED IN PROBLEM OF MIGRANTS - 16

A. Joshen failed to progressively realize the development of its citizens. - 16

1. Sangala has the responsibility to protect the human rights of citizens of Joshen

- - - - - - - - - - 17

2. Right to Development is an inalienable Human Right. - - 18

3. ‘Me young Joshen’ Policy of Joshen restricted development of its citizens. 19

4. Non-Industrialization in Joshen led to problem of migrants. - - 19

B. Joshen is liable to pay compensation for burdening Sangala economically by

producing migrants. - - - - - - - - 20

PRAYER FOR RELIEF - - - - - - - - - 21

LIST OF ABBREVIATIONS WRITTEN SUBMISSION ON BEHALF OF SANGALA

2ND


IV

LIST OF ABBREVIATIONS

§ Section

¶ Paragraph

GATT General Agreement on Tariffs and Trade

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ International court of Justice

ILC International Law Commission

ILR International Law Review

Intl International

OECD Organization for Economic Cooperation and Development

PCIJ Permanent Court Of international Arbitration

PSONR Permanent Sovereignty on Natural Resources

Res Resolution

RTD Right to Development

U.N.G.A United Nations General Assembly

UDHR Universal Declaration of Human Rights

UN United Nations

WTO World Trade Organization

INDEX OF AUTHORITIES WRITTEN SUBMISSION ON BEHALF OF SANGALA

V

INDEX OF AUTHORITIES

SR. NO.

UN DOCUMENTS AND RESOLUTIONS

PAGE

NO.

1. Declaration on the right to development, 1986 adopted by the UN General

Assembly Resolution 41/128 on 4th

December 1986

16, 18,

19

2. Draft Articles on Responsibility of States for Internationally Wrongful Acts,

U.N. Doc. A/56/10; GAOR, 56th

Sess., Supp. No. 10 (2001)

5, 15

3. General Comments Adopted by the Human Rights Committee, U.N. Doc.

HRI/GEN/1/Rev.6 at 124 (2003)

6, 9

4. International Covenant on Civil and Political Rights, G.A. res. 2200A

(XXI), 21 U.N., U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171

8, 19

5. International Covenant on Economic, Social and Cultural Rights, G.A. res.

2200A (XXI), U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3

9, 16

6. Report of the International Law Commission - 53rd session (23 April - 1

June and 2nd July - 10 August 2001), UN Doc. (A/56/10). Ibid., para 23

15

7. Rio Declaration on Environment and Development, 1992, UN Doc.

A/CONF.151/26 (vol. I) / 31 ILM 874 (1992)

18

8. The General Assembly, Permanent Sovereignty over Natural Resources,

G.A. res. 1803 (XVII), 17 U.N. GAOR Supp. (No.17) at 15, U.N. Doc.

A/5217 (1962)

7

9. United Nations Security Council Resolution 418, Res. 4/1977 (4th

November

1977)

18

10. United Nations Security Council Resolution, 5/1979 (27th

April 2011) 18


VI

JUDICIAL DECISIONS

11. (New Zealand v. France), 82 ILR 500 (1990) 3

12. Aumeeruddy-Cziffra et al v. Mauritius, UN Human Rights Committee,

Communication No. (35/1978), UN Doc A/36/40

9

13. Cameroon v. Nigeria, ICJ Reports, 1998, pp. 275, 304 4

14. Chief Ominayak and the Lubicon Lake Band v Canada (167/84) 5

15. Competence of the General Assembly for the Admission of a state to the

United Nations case ICJ Reports, 1950, pp.4, 8

3

16. Corfu Channel case (United Kingdom v. Albania) ICJ Reports, 1949, pp.

155, 158

11, 15

17. Democratic Republic of the Congo v. Uganda) [2005] ICJ Rep 168, [244] 7

18. Island of Palmas Case (Netherlands v United States of America) (1928) 2

Rep Intl Arbitral Awards 831

11

19. La Bretagne arbitration (Canada v. France), 82 ILR, pp. 590, 620 4

20. Nicaragua v. Unites States of America, Merits, Judgment, 1986 I.C.J. 14, ¶

177 (June 27)

1, 3, 15

21. North Sea Continental Shelf Cases, Judgment, 1969 I.C.J. 3, at 38–39, ¶ 63

(Feb. 20)

1, 3

22. Nuclear Tests cases ICJ Reports, 1974, pp. 253, 267 4

23. Re Thomas (1874), 23 Fed. Cases, 927 4

24. Texaco v. Libyan Arab Republic (1975), ILR, 53, pp 389, 415-16 7, 14

BOOKS, DIGESTS AND TREATISES

25. A. SHEARER, STARKE‟S INTERNATIONAL LAW, OXFORD UNIVERSITY PRESS, 13, 15


VII

(11TH

ed.) 1994

26. BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1963) 12, 17

27. DIXON, TEXTBOOK OF INTERNATIONAL LAW (2007) 6

28. H. Steinberger, „Sovereignty’, in Max Plank Institute of comparative Public

Law and International Law, Encyclopedia for Public International Law, vol .

10 (North Holand, 1987) 4

10

29. J. THORNTON & S. BECKWITH: ENVIRONMENTAL LAW, (2ND

ed., 2004) 8

30. JAMES PATTINSON, HUMANITARIAN INTERVENTION AND THE RESPONSIBILITY

TO PROTECT – WHO SHOULD INTERVENE? OXFORD UNIVERSITY PRESS, (1ST

ed. 2010)

17

31. MALCOLM SHAW, INTERNATIONAL LAW, CAMBRIDGE UNIVERSITY PRESS,

(6TH

ed.) 2008

3, 6, 13

32. OPPENHEIM, INTERNATIONAL LAW (9TH

ed. 1996) 2, 3, 13,

17

33. PICTET JEAN, COMMENTARY ON THE GENEVA CONVENTION FORTHE

AMELIORATION OF THE CONDITION OF THE WOUNDED AND SICK ARMED

FORCES IN THE FIELD, ICRC, GENEVA, 1952

11

34. WALTER KALIN & JORG KUNZLI, THE INTERNATIONAL HUMAN RIGHTS

PROTECTION, OXFORD UNIVERSITY PRESS

9, 17

35. WILLIAM EDWARD HALL, INTERNATIONAL LAW, CLARENDON PRESS (6TH

ed.

1909)

5

TREATIES AND OFFICIAL DOCUMENTS

36. International Law Commission‟s Draft Declaration on Rights and Duties of 2


VIII

States YBILC (1949)

37. Report of the International Commission on intervention and state

Sovereignty, The Responsibility to Protect, December 2001

17

38. Statement of Deputy Secretary of State Dam, 78 AJIL, 1984, p. 200. See also

W. Gilmore, The Grenada Intervention, London, 1984, and below, p. 1042

13

39. Statements by the US President and the Department of State, 84 AJIL, 1990,

p. 545

13

40. Vienna Conventions on the Law of Treaties 1969 2, 4, 6

41. ARTICLES AND JOURNALS

42. ICRC Opinion Paper, How is the Term “Armed Conflict” Defined in

International Humanitarian Law?, March 2008

11

43. Khurshid Iqbal, Declaration on right to development and implementation,

University of Ulster

16, 18

44. N. Schrijver: Sovereignty over Natural Resources – Balancing Rights and

Duties, p. 128

7, 8

45. Roberto Barata, „Should Invalid Reservation to Human Rights Treaties be

Disregarded?‟ (2000) 11 (2)European Journal of International Law, 413,

413, fn 2

6

46. Daniel Hylton, „Default Breakdown: the Vienna Convention of Law of

Treaties’ Inadequate Framework on Reservations‟ (1994) 27 Vanderbilt

Journal of Transnational Law 419, 430

6

MISCELLANEOUS

47. Ayusgi, Advantages of Industrialization: Revision Notes on December 6, 19


IX

2011

48. Calster, Geert van, International law and sovereignty in the age of

globalization, international Law and Institutions

10

49. Industrialization, urbanization and Immigration: U.S. History, ch. 12, s. 2:

Industrial Revolution

19

50. Michigan Journal of Law Reform, 835 8

51. Miyoshi Masahiro, Sovereignty and International Law, Professor Emeritus

of International Law, Aichi University Japan

10

52. Paust, 'Seizure and Recovery'. See also DUSPIL, 1975, pp. 777-83 13

53. See M. Nowak, CCPR Commentary (N.P. Engel, Kehl, 1993), 409-410, on

the negative/positive distinction between arts 17 and 23

7, 8

STATEMENT OF JURISDICTION WRITTEN SUBMISSION ON BEHALF OF SANGALA

X

STATEMENT OF JURISDICTION

The State of Sangala („Sangala‟) and the State of Joshen („Joshen‟) have agreed to submit this

dispute „concerning Sangala – Joshen Pact 1999 and related issues‟ to the International Court of

Justice pursuant to Article 401, paragraph 1 of the Statute of this Court and by virtue of a Special

Agreement (Fact Sheet) signed in The Hague, The Netherlands, on November 7, 2014 and

jointly notified to the Court on the same date. In accordance with Article 36, paragraph 1 of the

Statute, the Court has jurisdiction to decide all matters referred to it for decision. Both parties

shall accept the Court‟s decision as final and binding and execute it in good faith.

1 1. Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by

written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be

indicated.

2. The Registrar shall forthwith communicate the application to all concerned.

3. He shall also notify the Members of the United Nations through the Secretary-General, and also any other states

entitled to appear before the Court.

STATEMENT OF FACTS WRITTEN SUBMISSION ON BEHALF OF SANGALA

XI

STATEMENT OF FACTS

DESCRIPTION OF STATE PARTIES

SANGALA: State of Sangala is a developing state having presidential form of government with

high population density. It is a capitalist economy and is an industrialized nation. Ms. Parshoo,

the president adopted “earn and live” as the main moto and believed that right to development is

an inalienable right and signed Declaration on RTD, 1986. Steel industries of sangala became

highly recognized all over the world.

JOSHEN: State of Joshen is a least developed state, located at the northeast of Sangala. It is rich

in its natural resources. Citizens did never oppose the policy of the King Mr. Baruawa IV. The

Tribal population worshipped nature and thus preserved it. King Baruawa III participated in the

Stockholm Conference and signed the PSONR, 1956 wherein he declared sovereign power over

natural resources and kept it safe. King took reservation to Article 1 and 23 of ICCPR. King took

active participation in environment related conferences and ratified environment protection

treaties.

THE SANGALA– JOSHEN PACT 1999

The Sangala- Joshen Pact 1999 where Joshen agreed to supply iron ore for 20 years, and agreed

that the supply shall not be stopped until May 2033.Sangala agreed that the payment shall be

made in form of gold n advance. Both the states are expected to respect their unique interest. In

case of violation, the award of compensation shall be mutually agreed by the parties, if not

settled the parties may approach the ICJ, The Hague.

TRANS-BOUNDARY POLLUTION

In 2013, Ms. Parshoo was re-elected and encouraged competition in the market. Sangala was

encouraging industries, and reduced domestic subsides. Sangala encouraged competition in the

market, also adopted policies pertaining to development and industries, and self –employment.

Joshen being affected by the pollution, Mr. Baruawa IV put the issue of trans-boundary pollution

and damage to environment before the world council on environment. Many citizens of Joshen

left the country and moved to sangala due to the employment opportunities available in sangala.

STATEMENT OF FACTS WRITTEN SUBMISSION ON BEHALF OF SANGALA

XII

STAMPEDE AND HUMAN RIGHTS PROTECTION

DFA group was formed for representation s in front of King Baruawa in Joshen for opposing the

policy of „me young Joshen‟ ,in order to disburse rally, King ordered its army to fire in the air in

which people started running and huge stampede occurred. One thousand five hundred people

died, fourty five were citizens of Sangala, who were mere spectators. Ms. Parshoo realizing her

responsibility of protecting human rights of citizens of Joshen extended help of war planes and

ammunitions to the DFA group.

ATTACK ON STEEL INDUSTRIES

His Majesty king Baruawa IV stopped all supply of iron ore to Sangala after coming to know

about the support of Sangala to DFA group. King ordered its army to attack the steel industries

and imposed his responsibility on General Mathuk. General Mathuk planned and supervised the

armed attack to steel industries. He led attack on two steel industries in sangala. Sangala arrested

and took General Mathuk into custody, before he could attack the third steel industry. Ms.

Parshoo suffered a major setback due to non- supply of iron-ore from Joshen and the attack on

steel industries, which was the backbone of Sangala.

ASYLUM SEEKERS AND SEALING OF SAJO BORDER

Due to internal conflict, many citizens of Joshen, mostly the elderly citizens took asylum in

Sangala. Sangala took this issue of Asylum Seekers to UN and WTO. More than 10,000 people

took asylum in Sangala and adopted „earn and live policy‟ of Ms. Parshoo. Ms Parshoo ordered

sealing of its territorial border, called as „Sajo border‟ stating that the influx of Asylum Seekers

have disrupted their economy and forcefully repatriated the citizens of Joshen at the sajo border.

Citizens of Sangala got worried due to increase in number of asylum seekers who provided

cheap labour.

EPILOUGE

Sangala sought compensation from Joshen for the violation of Sangala-Joshen Pact and urged for

continuance of the pact as Joshen had agreed for the same. Joshen denied the same and requested

to release General Mathuk. With no agreements in sight, both states consented to submit the

dispute to the ICJ with a special agreement signed on 7th

November 2014.

SUMMARY OF PLEADINGS WRITTEN SUBMISSION ON BEHALF OF SANGALA

XIII

STATEMENT OF ISSUES

The parties have placed before this Hon’ble Court, the following Questions for its

consideration:

I. Whether Joshen has violated Sangala – Joshen Pact 1999 by discontinuing the supply

of iron ore and therefore Sangala is entitled to seek compensation from Joshen.

II. Whether Reservation to Article 1 and 23 are incompatible to ICCPR therefore null

and void in accordance with International Law.

III. Whether Joshen has violated International Law by attacking the Steel Industries of

Sangala.

IV. Whether Joshen has violated International human rights by denying right to

development of its citizens which resulted in problem of migrants.


XIV

SUMMARY OF PLEADINGS

1. JOSHEN HAS VIOLATED SANGALA-JOSHEN PACT 1999 BY

DISCONTINUING THE SUPPLY OF IRON ORE AND THEREFORE SANGALA

IS ENTITLED TO SEEK COMPENSATION FROM JOSHEN.

The obligation to perform the treaty for the supply of was till 2033. Sangala

suffered a major setback due to non –supply of iron ore and from the attack to steel

industries. There is a violation of the unique interest of Sangala by Joshen, under Article

6 of the Sangala-Joshen Pact 1999.

The general rule then is clear that a treaty which has been violated by one of the

parties to it is not binding upon the other, by not fulfilling the objective Joshen as

violated the Sangala- Joshen Pact, 1999. Hence, Joshen is liable to pay compensation to

Sangala for the breach of the pact.

2. RESERVATIONS TO ARTICLE 1 AND 23 ARE INCOMPATIBLE WITH ICCPR AND

THEREFORE ARE NULL AND VOID IN ACCORDANCE WITH INTERNATIONAL

LAW.

Article 1 is a very important right; in no case may a people be deprived of its own

means of subsistence. Where a state makes a reservation to a treaty, any other contracting

state may object to that reservation and specify that the treaty will not enter into force

between the objecting and reserving states.

King Mr. Baruawa IV retained exclusive ownership of natural resources and also

profited from earning from the businesses related to natural resources which implies that

the extraction of earning from natural resources was not been distributed among the

citizens which goes against the abovementioned norms of development and well-being of

the citizens. Hence, the reservation to Article 1 should be considered as impermissible.


XV

Article 23 is an express right, the right to found a family implies, in principle, the

possibility to procreate and live together. Right to marry and start a family is a right

under international human right provided under the universal declaration of human rights.

The King believed „Lesser the population, less pollution in environment‟. Hence, the

policy is not justified.

3. JOSHEN HAS VIOLATED INTERNATIONAL LAW BY ATTACKING THE STEEL

INDUSTRIES OF SANGALA.

The act of interference on the part of Joshen has resulted in the violation of the

sovereignty and territorial integrity of Sangala; both of which have acquired a firm

footing in the world of international law and have been accepted worldwide. This act is in

clear violation of the well settled and accepted international law.

The attack on the steel industries by the army of Joshen; led by General Mathuk,

would fall under the category of an armed conflict as armed force was used against

Sangala which led to an armed intervention in Sangala. In the stampede which took place

in Joshen due to the firing of army included 45 citizens of Sangala who were been also

killed of which the Sangala has a right and responsibility to protect its remaining citizens

at Joshen. This very well implies that the General Mathuk‟s act has been commanded by

the head of the state and thereby giving all jurisdiction to Sangala to try him locally for

attacking the integrity through attack on steel industries which is a internationally

wrongful act. Hence, Joshen is liable for compensation.

4. JOSHEN HAS VIOLATED INTERNATIONAL HUMAN RIGHTS BY DENYING

RIGHT TO DEVELOPMENT OF ITS CITIZENS WHICH RESULTED IN

PROBLEM OF MIGRANTS.

Joshen fails for progressive realization of its country and its citizens. States have the

duty and the obligation to remove or eliminate obstacles from the right to development. It


XVI

is a clear violation of the human rights as Joshen‟s army caused the large scale loss of life

by firing and stampede which was without a warning. Hence, the intervention of sangala

is justified. Right to development is human right under UDHR and human rights are

universal and inalienable.

The policy „Me Young Joshen‟ is a restrictive policy to the development to its

citizens. Joshen is liable to pay compensation to Sangala because the artificial conditions

created by Joshen led the influx of migrants in Sangala thereby disrupting the economy.

The citizens of Sangala were also unhappy with the increasing number of asylum seekers

from Joshen, who provided cheap labour

PLEADINGS WRITTEN SUBMISSION ON BEHALF OF SANGALA

1

PLEADINGS

I. JOSHEN HAS VIOLATED SANGALA-JOSHEN PACT 1999 BY DISCONTINUING

THE SUPPLY OF IRON ORE AND THEREFORE SANGALA IS ENTITLED TO

SEEK COMPENSATION FROM JOSHEN.

It is humbly submitted that a Treaty2 was signed between contracting parties

Sangala and Joshen whereby the continuous supply of iron ore was to be done by Joshen

to Sangala for period of 20 years starting from May 2013 till May 2033.3 The payment

was to be in form of gold and paid in advance at the beginning of each financial

year.4

Joshen has unilaterally denunciated from the Sangala-Joshen Pact 1999 by

discontinuing the supply of the Iron Ore which is a breach of bilateral treaty obligation by

Joshen.

A. Joshen has violated Treaty Obligations

1. Breach of Bilateral Treaty Obligation by Joshen

Obligations may arise for a State by a treaty and by a rule of customary international law

or by a treaty and a unilateral act.5

Sangala suffered a major setback due to non-supply of iron ore from Joshen and attack on

steel industries which was a backbone of Sangala‟s economy. The economy of Sangala took a

huge hit. The Stock Exchange index went down by 1000 points in two days. Domestic market

got affected. Worries of unemployment came to fore in the mind of the citizens of Sangala.6

2 Sangala –Joshen Pact 1999

3Sangala – Joshen Pact 1999, art. 5.1

4Sangala – Joshen Pact 1999, art. 5.2

5 Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. Unites States of America), Merits,

Judgment, 1986 I.C.J. 14, ¶ 177 (June 27) [hereinafter Nicaragua]; See also North Sea Continental Shelf Cases,

Judgment, 1969 I.C.J. 3, at 38–39, ¶ 63 (Feb. 20) [hereinafter North Sea Continental Shelf] 6 Fact Sheet ¶ 17


2

Furthermore, same treaty states “The both contracting parties Sangala and Joshen shall

respect the each Party’s unique interests, including, but not limited to, in the case of contracting

party Sangala the protection of industries which is the icon of Sangala and in case of contracting

party Joshen the protection of ecology and environment which is the icon of Joshen.”7

The acts and omissions by Joshen that violate Article 6.1 of the Treaty are: firstly, failure

to protect Sangala‟s unique interest i.e.; Protection of industries, secondly, setback due to non-

supply of iron ore on which the economy of Sangala was developing.

Article 26 of the Vienna Conventions on the Law Treaties (Hereinafter referred as

VCLT) provides: „Every treaty in force8 is binding upon the parties to it and must be performed

by them in good faith‟.9 The Treaties are legally binding, because there exists a customary rule if

international law the treaties are binding.10

The binding effect of that rule rests in the last resort

on the fundamental assumption, which is neither consensual nor necessarily legal, of the

objectively binding force of international law.11

The effect of a treaty upon the contracting parties is that they only are bound by its

provisions and must perform it in good faith.12

As between the parties, the provisions of a treaty

prevail over any inconsistent rule of customary international law, unless it constitutes a rule of

jus covens’ party may not invoke the provisions of its internal law as justification for a failure to

perform a treaty;13

this applies particularly to its failure to enact suitable laws to give effect to its

7 Sangala – Joshen Pact 1999, art. 6.1

8 This includes treaties provisionally in force under Art. 25 of the Vienna Conventions: See ILC Commentary

(treaties), Art 23, para (3); YBILC (1966), ii, p 211 9 The obligation of good faith includes the obligation of a party to a treaty to abstain from acts calculated to frustrate

the object and purpose of the treaty: See ILC Commentary (Treaties), Art 23, para (4); YBILC (1966), ii, p 211. See

also § 620, n2; and § 12, nn 6,7 and § 105, as to the seventh „Principle of Friendly Relations‟. 10

OPPENHEIM, INTERNATIONAL LAW (9TH

ed. 1996), pg 1206 11

That assumption is frequently expressed in the form of the principle pacta sunt servanda 12

Vienna Conventions on the Law of Treaties 1969, Art 26. That provision has been referred to by the ILC as a

„definition of the very essence of treaties‟: YBILC (1982), ii, pt. 2, p 38. And see Rosenne, Developments in the

Law of Treaties 1945-1986 (1989), pp 135-79; and § 584, n 2 13

Vienna Conventions on the Law of Treaties 1969, Art 27


3

treaty obligations. Obligations may arise for a State by a treaty and by a rule of customary

international law or by a treaty and a unilateral act.14

It was noted that International Law did not distinguish between contractual and tortious

responsibility, so that any violation by a state of any obligation of whatever origin gives rise to a

state responsibility and consequently to the duty of reparation.15

Article 37 of the ILC Articles

provides that a state responsible for a wrongful act is obliged to give satisfaction for the injury

thereby caused in so far as it cannot be made good by restitution or compensation. Satisfaction

may consist of an acknowledgement of the breach, an expression of regret, a formal apology or

another appropriate modality.16

2. Joshen’s unilateral denunciation is against the provisions of VCLT

Article 56 of the Vienna Convention lays down that the general rule is that in the absence

of provision in the treaty, a party may not withdraw from it or denounce it: but denunciation or

withdrawal are permitted on at least 12 months‟ notice if it is established that the parties intended

to admit the possibility, or if a right of denunciation or withdrawal may be implied by the nature

of the treaty.17

It is evident from the facts of the case that there was no notice provided by Joshen or

intimation to Sangala regarding its denunciation from the Sangala-Joshen Pact 1999 and

stoppage of supply of Iron ore on part of Joshen was invalid as it did not conform to the Article

56 of Vienna convention as the treat is silent on the intimation part of denunciation.

3. Joshen has the obligation to perform the Sangala-Joshen Pact 1999

The ICJ noted in the Competence of the General Assembly for the Admission of a state to

the United Nations case18

that the first duty of a tribunal which is called upon to interpret and

14

Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. Unites States of America), Merits,

Judgment, 1986 I.C.J. 14, ¶ 177 (June 27) [hereinafter Nicaragua]; See also North Sea Continental Shelf Cases,

Judgment, 1969 I.C.J. 3, at 38–39, ¶ 63 (Feb. 20) [hereinafter North Sea Continental Shelf] 15

Rainbow Warrior Case, (New Zealand v. France), 82 ILR 500 (1990) pp. 801; MALCOLM SHAW, INTERNATIONAL

LAW, CAMBRIDGE UNIVERSITY PRESS, (6TH

ed.) 2008 See pg. 779 16

See ILC Commentary 2001, p. 263. Satisfaction is not to be disproportionate to the injury and not in a form which

is humiliating to responsible state, art. 37(3) 17


ed. 1996), pg 1299 18

ICJ Reports, 1950, pp.4, 8; 17 ILR, pp. 326, 328


4

apply the provisions of a treaty is to endevour to give effect to them in their natural and ordinary

meaning in the context in which they occur.19

The International Court declared in the Nuclear Tests cases20

that:

One of the basic principles governing the creation and performance of legal obligations,

whatever their source, is the principle of good faith. Trust and confidence are inherent in

international co-operation, in particular in an age when this co-operation in many fields is

becoming increasingly essential. Just as the very of pacta sunt servanda21

in the law of treaties is

based on good faith, so also is the binding character of an international obligation assumed by

unilateral obligations. As the International Court has noted, the principle of good faith relates

„only to the fulfillment of existing obligations.22

In re Thomas23

, it was said by the United States Circuit Court that:

“Where a treaty is violated by one of the contracting parties, it rests alone with the

injured party to pronounce it broken, the treaty being, in such case, not absolutely void, but

voidable, at the election of the injured party, who may waive or remit the infraction committed,

or may demand a just satisfaction, the treaty remaining obligatory if he chooses not to come to a

rupture.”

Hall observes that:

In organized communities it is settled by municipal law whether a contract which has

been broken shall be enforced or annulled; but internationally, as no superior coercive power

exists, and as enforcement is not always convenient or practicable to the injured party, the

individual state must be allowed in all cases to enforce or annul for itself as it may choose. The

general rule then is clear that a treaty which has been broken by one of the parties to it is not

19

See also the La Bretagne arbitration (Canada v. France), 82 ILR, pp. 590, 620 20

ICJ Reports, 1974, pp. 253, 267;57 ILR, pp. 398, 412 21

Vienna Conventions on the Law of Treaties 1969, Art 26 22

Cameroon v. Nigeria, ICJ Reports, 1998, pp. 275, 304 23

(1874), 23 Fed. Cases, 927


5

binding upon the other, through the fact itself of the breach, and without reference to any kind of

tribunal.24

B. Sangala is entitled to seek compensation for violating the Sangala –

Joshen Pact 1999.

The violation of the Sangala – Joshen Pact 1999 by Joshen entitles Sangala for

compensation under the pact.25

The violation of the unique interest of Sangala leads to breach of

the pact.26

As the attack on steel industries is violation of the sovereignty and integrity of

Sangala which indeed constitutes an internationally wrongful act.27

The state responsible for an

internationally wrongful act is under an obligation to compensate for the damage caused thereby,

insofar as such damages is not made good by restitution.28

II. RESERVATIONS TO ARTICLE 1 AND 23 ARE INCOMPATIBLE TO ICCPR AND

THEREFORE ARE NULL AND VOID IN ACCORDANCE WITH

INTERNATIONAL LAW.

A. Reservation to article 1 of ICCPR is an impermissible reservation

Article 1(2) is a very important right. For example, its terms suggest that a government

cannot permit mining on a people‟s land without its approval.29

Paragraph 2 affirms a particular

aspect of the economic content of the right of self-determination, namely the right of peoples, for

their own ends, freely to “dispose of their natural wealth and resources without prejudice to any

obligations arising out of international economic cooperation, based upon the principle of mutual

benefit, and international law.30

In no case may a people be deprived of its own means of subsistence”. This right entails

corresponding duties for all States and the international community. States should indicate any

24

WILLIAM EDWARD HALL, INTERNATIONAL LAW, CLARENDON PRESS (6TH

ed. 1909) See pg. 343 25

Sangala – Joshen Pact 1999, art. 7.1 26

Sangala – Joshen Pact 1999, art. 6.1 27

Draft Articles on Responsibility of States for Internationally Wrongful Acts, [2001] 2 Y.B. Int‟l L. Comm‟n 26,

U.N. DOC. A/56/49(Vol. I)/Corr.4 28

Draft Articles on Responsibility of States for Internationally Wrongful Acts, Art. 36 29

Chief Ominayak and the Lubicon Lake Band v Canada (167/84) 30

Ibid


6

factors or difficulties which prevent the free disposal of their natural wealth and resources

contrary to the provisions of this paragraph and to what extent that affects the enjoyment of other

rights set forth in the Covenant.31

A state may not formulate a reservation which is incompatible

with the object and purpose of the treaty.32

Where a state makes a reservation to a treaty, any other contracting state may object to

that reservation and specify that the treaty will not enter into force between the objecting and

reserving states.33

According to the object and purpose test34

, if a reservation is challenged before

a competent International Court or tribunal even many years after the reservation was initially

drafted, it can still be declared invalid on the grounds of incompatibility.35

The UNHRC has also

affirmed that at least some of elements of those reservations are incompatible with the object and

purpose of ICCPR and constantly, invalid.36

Since, Both Sangala and Joshen are parties to the ICCPR, Sangala can take the issue of

incompatibility of the reservations to the ICJ for declaring it to be null and void.

1. Claim of Permanent sovereignty on natural resources by Joshen is invalid

One of the limitations of a states permanent sovereignty right over its own natural

resources is that it has to be exercised for the national development and well being of its

people.37

The right to self-determination, as a newly emerged peremptory norm,38

includes the

31

UN Human Rights Committee, General Comment No. 12: Right to Self-Determination of People (Art 1) as

contained in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty

Bodies, UN Doc HRI/Gen/1/Rev.9 32

Vienna Conventions on the Law of Treaties 1969, Art 19(c) 33

Roberto Barata, „Should Invalid Reservation to Human Rights Treaties be Disregarded?‟ (2000) 11 (2)European

Journal of International Law, 413, 413, fn 2 34

Baratta, above n 33, 413, fn 1; Daniel Hylton, „Default Breakdown: the Vienna Convention of Law of Treaties’

Inadequate Framework on Reservations‟ (1994) 27 Vanderbilt Journal of Transnational Law 419, 430 35

Roslyn Moloney, „Incompatible reservations to Human Rights treaties: Severability and the problem of State

consent”, Melbourne Journal of International Law, 2004 vol. 5, See at pg. 3 36

Human Rights Committee, Report of the human Rights Committee, UN GAOR, 50th

Session, supp. No. 40, (279),

UN Doc A/50/40 (3rd

October 1995) 37

G.A. Res. 17/1803, U.N. GAOR, 17th Sess., at 15, U.N. Doc. A/RES/17/5217 (1962); International Convention

on Civil and Political Right, entered into force March 23, 1976, art.1(2), 999 U.N.T.S. 171 („ICCPR‟) 38

FROWEIN, JUS COGEN; DIXON, TEXTBOOK OF INTERNATIONAL LAW (2007), 164; SHAW, INTERNATIONAL LAW

(2008), 40, 255, 808 Fn. 198


7

inherent element of free disposal of States over their natural wealth and resources connected with

their territory, to be exercised in the interest of the well-being of their population.39

This principle is confirmed by the UNGA Resolution on „Permanent Sovereignty over

Natural Resources‟ which provides that „[t]he right of peoples and nations to permanent

sovereignty over their natural wealth and resources must be exercised in the interest of their

national development and of the well-being of the people of the State concerned.‟40

The

customary law character of this resolution was affirmed by the ICJ in the case of Armed

Activities on the Territory of the Congo.41

King Mr. Baruawa IV retained exclusive ownership of natural resources and also profited

from earning from the businesses related to natural resources42

which implies that the extraction

of earning from natural resources was not been distributed among the citizens which goes against

the abovementioned norms of development and well-being of the citizens. Also, the demand

from DFA group that the King of Joshen should share profit of iron mining43

are valid

representations to which the citizens are entitled. Hence, the claim for permanent sovereignty on

natural resources by Joshen is invalid.

Sangala‟s objection to the reservation is supported by the fact that Joshen had failed to

provide favorable conditions to work for its citizens as result creating unemployment. So, the

young generation developed an attraction for Sangala due to employment opportunities and

development available there.44

2. Right of citizens of Joshen on natural resources cannot be impaired in order to

fulfill the international obligation

39

Texaco Case, 30; UNGA – Res. 1803 (XVII); Chowdhury, Permanent Sovereignty over Natural Resources in

International Law, 59, 61, 64-65; Perrez, The relationship between “permanent sovereignty” and the obligation not

to cause trans-boundary environmental damage, 1193; Cassese, Self-determination of Peoples (1995), 55-56;

Nowak, Commentary on the UN Covenant on Civil and Political Rights (2005), 8, para. 3 and 14, para. 14;

Schrijver, Sovereignty over Natural Resources – Balancing Rights and Duties (1997), 11-19 40

UNGA Res 1803 (XVII) (14 December 1962) Article 1 41

Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (Judgement)

[2005] ICJ Rep 168, [244]. 42

Fact Sheet ¶ 4 43

Fact Sheet ¶ 12 44

Fact Sheet ¶ 11


8

The UN general assembly resolutions have led to the insertion of more rules and

regulations on nature management and exploitation requirements.45

Every state has the right to

freely dispose off their natural resources.46

The main purpose for regulating the exploitation and

conservation of shared resources is to maintain balance between interests of parties concerned.47

Reasonableness is fundamentally a base for determining opposing allegations where

otherwise lawful activities divergence. 48

Even though, State of Joshen has its international

obligation for protecting ecology and environment, King Baruawa IV cannot destruct the rights

of its citizen from natural resources.

The reservation by the king to Article 1 of ICCPR should hence be considered as

impermissible on the ground that the policy of safeguarding environment and natural resources

has remained continued from ancestors.49

Asserting sovereign powers over natural resources and

claiming exclusive ownership is not justifiable.

King also profited from the earning from the business related to natural resources, and the

profit from export went into the King‟s personal treasure and did not share the profit with its

population as he considered its population as subjects of state.50

Therefore, the reservation

should be declared as null and void.

B. Reservation to article 23 of ICCPR infringes basic human right to

marriage and to form a family.

Article 23(2) is expressed as an absolute right. However, it is likely that certain common

restrictions are permissible, such as restrictions on incestuous marriages or on persons who are

already married.51

45

J. THORNTON & S. BECKWITH: ENVIRONMENTAL LAW, (2ND

ed., 2004), See p. 29; N. Schrijver: Sovereignty over

Natural Resources – Balancing Rights and Duties, p. 128 46

International Covenant on Civil and Political Rights, Art 1(2) 47

PATRICIA BIRNIE ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, OXFORD UNIVERSITY PRESS, (2nd

ed.), See p.140 48

Ibid, See p.147 49

Fact sheet ¶ 4 50

Fact sheet ¶ 7 51

See M. Nowak, CCPR Commentary (N.P. Engel, Kehl, 1993), 409-410, on the negative/positive distinction

between arts 17 and 23. However, he concedes that the distinction is „difficult to maintain in practice‟. See also F.

Olsen, „The Myth of State Intervention in the Family‟ (1985) 18 Michigan Journal of Law Reform 835, arguing that

the distinction between „intervention‟ and „non-intervention‟ in the family is meaningless


9

The right to found a family implies, in principle, the possibility to procreate and live

together. When states parties adopt family planning policies, they should be compatible with the

provisions of the Covenant and should, in particular, not be discriminatory or compulsory.

Hence, coercive methods of population control are incompatible with article 23(2).52

Article

23(2) also includes a right of family unity or reunification. Such a right is also subsumed within

article 23(1).53

Human right is defined as internationally assured and guaranteed legal entitlements of

individual‟s vis-à-vis the state, which serve to protect the essential distinctiveness of a human

person.54

The widest possible protection and assistance should be accorded to the family, which

is the natural and fundamental group unit of society, particularly for its establishment and while

it is responsible for the care and education of dependent children. Marriage must be entered into

with the free consent of the intending spouses.55

Men and women of full age without any limitation…have right to marry and to found a

family.56

Marriage shall be entered into only with the free and full consent of the intending

spouses.57

Right to marry and start a family is a right under international human right provided

under the universal declaration of human rights.

King Baruawa IV reserved Article 23 of ICCPR to the extent that people of Joshen were

required to take the prior permission of the king before getting married and before starting a

family. The King believed „Lesser the population, less pollution in environment‟ and to support

this, the king had laid down such a policy.

The policy is not justified as it is in violation of basic human rights provided under the

article 16 of universal declaration of human right. Even if, Joshen has international obligation to

52

UN Human Rights Committee, General Comment No. 19: Protection of the Family, the Right to marriage and

equality of the spouses (Art 23) as contained in Compilation of General Comments and General Recommendations

Adopted by Human Rights Treaty Bodies, UN Doc HRI/Gen/1/Rev.8 53

See Aumeeruddy-Cziffra et al v. Mauritius, UN Human Rights Committee, Communication No. (35/1978), UN

Doc A/36/40 54

WALTER KALIN & JORG KUNZLI, THE INTERNATIONAL HUMAN RIGHTS PROTECTION, OXFORD UNIVERSITY PRESS,

See p. 32 55

International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), U.N. Doc. A/6316

(1966), 993 U.N.T.S. 3, Art. 10 56

Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), Art. 16(1) 57

Ibid, Art. 16(2)


10

be fulfilled to protect ecology and environment, it has no right to violate and take away the basic

human rights of the people, which are universal and inalienable.58

III. JOSHEN HAS VIOLATED INTERNATIONAL LAW BY ATTACKING THE STEEL

INDUSTRIES OF SANGALA.

A. The interference of Joshen in Sangala’s internal affairs by

attacking its steel industries violated the sovereignty and

integrity of Sangala.

The act of interference on the part of Joshen has resulted in the violation of the

sovereignty and territorial integrity of Sangala; both of which have acquired a firm

footing in the world of international law and have been accepted worldwide. This act is in

clear violation of the well settled and accepted international law. International law is

based upon the sovereign equality of states.59

1. Joshen violated Sangala’s sovereignty and integrity

During the 17th

and the 18th

centuries, State sovereignty meant that a State‟s autonomy

and independence from and lawful and authorized impermeability with regard to foreign powers

on the one part and State‟s exclusive control, jurisdiction and supremacy over its territory and

population on the other.60

The authenticity of the sovereign states was considered to be no longer spiritual and

religious but worldly secular.61

In simpler words, State Sovereignty connotes the basic

international legal status of a state.62

The theory of Sovereign equality of states is a well recognized principle of international

law.63

Such a principle signifies that: (a) States are judicially equal; (b) each State enjoys the

58

Supra note 43 59

Calster, Geert van, International law and sovereignty in the age of globalization, international Law and Institutions 60

Sovereignty and International Law, Miyoshi Masahiro, Professor Emeritus of International Law, Aichi University

Japan 61

Steinberger, loc. Cit., note 1 , at 507 62

H. Steinberger, „Sovereignty‟, in Max Plank Institute of comparative Public Law and International Law,

Encyclopedia for Public International Law, vol . 10 (North Holand, 1987) 4 63

Such principle is recognized by the Charter of the United Nations (adopted June 26 1945, entered into force

October 24 1945) 1 UNTS 16, Article 2(1); furthermore this principle is reaffirmed in the Declaration on the


11

rights intrinsic in full sovereignty; (c) each State has the duty to respect the character of other

States.64

State sovereignty is a significant ground for the organization and expansion of

international relations.65

The Permanent Court of International Justice (PCIJ) pointed out that

„Sovereignty in the relations between States signifies independence,‟66

which „gives the right to a

State to exercise its State functions within certain territory.‟

The principle of sovereign equality of States is a well established principle of

international law.67

2. Joshen violated Convention (IV) relative to the Protection of Civilian Persons in

Time of War, 1949 by attacking steel industries

Under International Humanitarian Law, “…the present Convention shall apply to all

cases of declared war of any other armed conflict which may arise between two or more High

Contracting Parties, even if the state of war is not recognized by one of them.”68

. High

Contracting Parties here means the states.

An International Armed Conflict is said to occur when one or more states have the access

to the use of armed force against another state, regardless of the reasons or the intensity of such a

conflict between armed attacks.69

No formal recognition or declaration of the war is required.70

Even if any difference arises between two states that leads to the intervention by armed

forces would be treated as an armed conflict under Article 2, even if one of the parties denies the

existence of the state of war.71

Principles of International Law Concerning Friendly Relations and Co-operation Among States, G.A. Res. 2625

(XXV), Annex, U.N. Doc. A/8082 (Oct. 24, 1970), annex, preamble 64

Declaration on the Principles of International Law Concerning Friendly Relations and Co-operation among

States, Art. 1 65

Corfu Channel case (United Kingdom v Albania) [1949] ICJ Rep 35 66

Island of Palmas Case (Netherlands v United States of America) (1928) 2 Rep Intl Arbitral Awards 831 67

Such principle is recognized by the Charter of the United Nations (adopted June 26 1945, entered into force

October 24 1945) 1 UNTS 16, Article 2(1); furthermore this principle is reaffirmed in the UNGA Res 2625 (XXV)

(24 October 1970), annex, preamble 68

Convention (IV) relative to Protection of Civilian Persons in Time of War, 1949, Article 2 69

ICRC Opinion Paper, How is the Term “Armed Conflict” Defined in International Humanitarian Law?, March

2008 70

Ibid 71

PICTET JEAN, COMMENTARY ON THE GENEVA CONVENTION FORTHE AMELIORATION OF THE CONDITION OF THE

WOUNDED AND SICK ARMED FORCES IN THE FIELD, ICRC, GENEVA, 1952, See at p. 32

https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=AE2D398352C5B028C12563CD002D6B5C




12

The attack on the steel industries by the army of Joshen; led by General Mathuk, would

fall under the category of an armed conflict as armed force was used against Sangala which led

to an armed intervention in Sangala and is against Article 2 of the Fourth Geneva Convention

relative to the Protection of Civilian Person in Time of War, 1949. Hence, Joshen violated this

convention by attacking the steel industries of Sangala.

Joshen has also violated the provisions of Geneva Convention for damaging the property

of Sangala which is the Steel Industries. Grave breaches to which the preceding Article relates

shall be those involving any of the following acts, if committed against persons or property

protected by the present Convention………. taking of hostages and extensive destruction and

appropriation of property, not justified by military necessity and carried out unlawfully and

wantonly.72

Any destruction by the Occupying Power of real or personal property belonging

individually or collectively to private persons, or to the State, or to other public authorities, or to

social or co-operative organizations, is prohibited, except where such destruction is rendered

absolutely necessary by military operations.73

3. Sangala has the right to protect its citizens abroad

In the nineteenth century, it was clearly regarded as lawful to use force to protect

nationals and property situated abroad and many incidents occurred to demonstrate the

acceptance of this position.74

It has been argued by many that an attack by a state to protect its nationals is justified.

Also, the principle of Responsibility to Protect enumerates that a state has the responsibility and

the duty to take such steps that would ensure that the rights of its citizens are protected, both in

the state as well as out of the state.

In 1964, Belgium and the United States sent forces to the Congo to rescue hostages

(including nationals of the states in question) from the hands of rebels, with the permission of the

Congolese government," while in 1975 the US used force to rescue an American cargo boat and

72

Convention (IV) relative to Protection of Civilian Persons in Time of War, 1949, Article 147 73

Ibid, Article 53 74

See eg. Brownlie, Use of Force, pp. 289 ff


13

its crew captured by Cambodia.75

The most famous incident, however, was the rescue by Israel

of hostages held by Palestinian and other terrorists at Entebbe, following the hijack of an Air

France airliner.76

The United States has in recent years justified armed action in other states on the grounds

partly of the protection of American citizens abroad. It was one of the three grounds announced

for the invasion of Grenada in 198477

and one of the four grounds put forward for the

intervention in Panama in December 1989.78

But in situations where the lives of the nationals are in imminent danger, an intervention

by the state would be considered to be lawful. Also, it has to be sown that the territorial

authorities were unable to take such measures that would give proper protection to the citizens of

the other state.79

In the stampede which took place in Joshen due to the firing of army included 45

citizens80

of Sangala who were been also killed of which the Sangala has a right and

responsibility to protect its remaining citizens at Joshen.

Hence, it can be conclusively stated that Sangala not only has the right but also has a

responsibility to protect its nationals abroad.

B. Sangala has jurisdiction to try and punish General Mathuk and

there was no obligation to return him to Joshen

A state clearly bears international responsibility for the official acts of its administrative

officials and members of its armed forces.81

States, being juristic persons, can only act through

the institutions and agencies of the state, its officials and employees. Their acts and omissions

75

Paust, 'Seizure and Recovery'. See also DUSPIL, 1975, pp. 777-83 76

See e.g, Akehurst, 'Use of Force'; Green, 'Rescue at Entebbe', and Shaw, 'Legal Aspects' 77

See the statement of Deputy Secretary of State Dam, 78 AJIL, 1984, p. 200. See also W. Gilmore, The Grenada

Intervention, London, 1984, and below, p. 1042 78

See the statements by the US President and the Department of State, 84 AJIL, 1990, p. 545 79


ed. 1996), See pg 442 80

Fact sheet ¶14 81


ed. 1996), See pg 545


14

when acting officially in their capacity as state organs are acts of the state, and the state bears

responsibility for all such acts as involve a breach of the state‟s international obligations,82

With regard to members of armed forces the state will usually be held responsible for

their acts if they have been committed in the line of duty, or in the presence of and under the

orders of an official superior.83

As all persons and things within the territory of a state fall under its territorial authority,

each state normally has jurisdiction over them. The Permanent Court of International Justice said

in the Lotus case, „a state…may not exercise its power in any form in the territory of another

state‟; jurisdiction „cannot be exercised by a state outside its territory except by virtue of a

permissive rule derived from international custom or from a convention‟.84

The conduct of a

person or group of persons shall be considered an act of a State under international law if the

person or group of persons is in fact acting on the instructions of, or under the direction or

control of that State in carrying out the conduct.85

It is very evident from the facts that The King Mr. Baruawa IV ordered its army to attack

the steel industries of Sangala and imposed this responsibility once again on General Mathuk. To

perform this responsibility, General Mathuk personally planned and supervised the armed attacks

the steel industries and led attack on two steel industries in Sangala.86

This very well implies that the General Mathuk‟s act has been commanded by the head of

the state and thereby giving all jurisdictions to Sangala to try him locally for attacking the

integrity through attack on steel industries which is an internationally wrongful act.

C. Joshen is liable to pay compensation for attack on steel

industries.

82

Texaco v. Libyan Arab Republic (1975), ILR, 53, pp 389, 415-16 83

Ibid, See pg. 548 84

PCIJ, Series A, No. 10, at pp 18-19 85

Responsibility of States for Internationally Wrongful Acts 2001, art. 8 86

Fact sheet ¶16


15

Under international law, "reparation must, as far as possible, wipe out all the

consequences of the illegal act and re-establish the situation which would, in all probability, have

existed if that act had not been committed."87

The right to reparation is a well-established principle of international law. This principle

was affirmed by the International Law Commission in its 53rd Session when it adopted the Draft

Articles on Responsibility of States for Internationally Wrongful Acts.88

Also, states are responsible to make full reparation for the injury that us caused by an

internationally wrongful act and the injury can be either material or moral89

as every

internationally wrongful act entails the responsibility of a state.90

The state that has committed the internationally wrongful act is liable and is under and

obligation to compensate for the damages caused and such “…compensation shall cover any

financially assessable damage including loss of profits insofar as it is established.”91

Joshen also violated the Article 6 of the Sangala-Joshen Pact, 1999 by attacking the steel

industries of Sangala. The steel industries are an important part of the economy of Sangala and

Joshen by attacking the steel industries disrespected the unique interest of Sangala, and thus

violated the pact.

Hence, Joshen shall be liable to compensate Sangala for attacking its steel industries and

thereby causing harm to its economy and disrespecting its unique interest and it would entail the

international responsibility of Joshen.

87

See Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17, at 47

(September 13); International Court of Justice: Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. U.S.), Merits 1986 ICJ Report, 14, 114 (June 27); Corfu Channel Case; (UK v. Albania); Reparations

for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, p. 184 ;

Interpretation des traites de paix conclus avec la Bulgarie, la Hongrie et la Romanie, deuxieme phase, avis

consultatif, C.I.J., Recueil, 1950, p. 228. See also Article 1 of the draft Articles on State Responsibility adopted by

the International Law Commission in 2001: "Every internationally wrongful act of a State entails the international

responsibility of that State. (UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001" (ILC draft Articles on State

Responsibility) 88

See Report of the International Law Commission - 53rd session (23 April - 1 June and 2nd July - 10 August

2001), UN Doc. (A/56/10). Ibid., ¶ 23 89

Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law

Commission on the Work of its Fifty-third Session, UN GAOR 56th Sess., Supp. No. 10, at 43, U.N. Doc. A/56/10

(2001), Art. 31 90

Ibid, Art. 1 91

Ibid, Art. 36


16

IV. JOSHEN HAS VIOLATED INTERNATIONAL HUMAN RIGHTS BY DENYING

RIGHT TO DEVELOPMENT OF ITS CITIZENS WHICH RESULTED IN

PROBLEM OF MIGRANTS.

Human rights are rights inherent to all human beings. Human Rights are universal

and inalienable.92

They should not be taken away, except by due process or under specific

situation. Inalienable as the term suggest „which cannot be taken away‟.

A. Joshen failed to progressively realize the development of its

citizens

Progressive realization connotes that the states obligation in connection to the

economic, social and cultural rights under international human rights.93

Each state has the

responsibility to achieve progressively and full realization of their rights.94

The main basis of the connection that lies in the notion of the right to

development is that recognizes development as a comprehensive economic, social,

cultural and political process in which all human rights can be fully realized.95

All human beings are the central subject to development and should be active

participant to the opinion of right to development.96

Every human has the right to take part

in the process of development.97

States have the primary obligation to create conditions

favorable for realization of the right to development.98

States have the duty and the

obligation to remove or eliminate obstacles from the right to development.99

92

Your Human rights, United Nations Human Rights, Office of the High Commissioner for Human rights 93

FAQ‟s on Economic, Social and cultural rights, Fact sheet 33, by office of the United Nations high commissioner

for human rights 94

International Covenant on Economic, Social and Cultural Rights, Art. 2 95

Khurshid Iqbal, Declaration on right to development and implementation, University of Ulster 96

Declaration on the right to development, 1986 adopted by the UN General Assembly Resolution 41/128 on 4th

December 1986, Art. 2 97

Ibid, Art. 1(1) 98

Ibid, Art. 3(1) 99

Ibid, Art. 3(3)


17

Also, the arrival of migrants to Sangala is a consequence of failure of Joshen to

provide employment and development to its citizens along with violation of their human

rights in the stampede massacre which led to violation of the pact by stopping the supply

of iron ore thereby committing a breach of International treaty.

1. Sangala has the responsibility to protect the human rights of citizens of Joshen

The responsibility to protect resides first and foremost with the state whose people are

directly affected.100

Where a population is suffering serious harm, as a result of internal war,

insurgency, repression or state failure, and the state in question is unwilling to cease it, the

principle of non-intervention yields to the international responsibility to protect.101

A substantial body of opinion102

and of practice has supported the view that there are

limits to that discretion and that when a state commits cruelties against its nationals in such a

way as to deny their fundamental rights, in that case there can be humanitarian intervention

which would be justified.103

In the present case, Sangala did intervene in Joshen by supplying warplanes and

ammunitions to the DFA group as a international responsibility to protect the rights of the

citizens of Joshen which is justified ground for the intervention.

The responsibility to protect transfers to the International community when the state

involved is unable or unwilling to look after its citizen‟s human rights and military intervention

meets the just cause threshold in circumstances of „serious and irreparable harm occurring to

human beings, or immediately likely to occur‟ and, in particular, actual or apprehended “large-

scale loss of life”.104

100

Report of the International Commission on intervention and state Sovereignty, The Responsibility to Protect,

December 2001 101

WALTER KALIN AND JORG KUNZLI, “THE LAW OF INTERNATIONAL HUMAN RIGHTS PROTECTION”, OXFORD

UNIVERSITY PRESS, (1ST

ed. 2009) 102

ILA Report (54th

Conference, 1970), pp 633-41; See BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY

STATES (1963), PP338-42 103

OPPENHEIM‟S INTERNATIONAL LAW, (9TH

ed. Volume 1) See pg. 442 104

JAMES PATTINSON, HUMANITARIAN INTERVENTION AND THE RESPONSIBILITY TO PROTECT – WHO SHOULD

INTERVENE? OXFORD UNIVERSITY PRESS, (1ST

ed. 2010) See pg. 14


18

Sangala‟s intervention is justified as large DFA group gathered in the capital of Joshen.

They organized a huge rally in front of King‟s palace. The citizens demanded development for

themselves and for Joshen. Mr. Baruawa IV, ordered its army to fire in the air to disburse the

rally and also ordered jailing of the members of DFA group. General Mathuk undertook this

responsibility. The army first rounded the people, numbering around five thousand, and then,

started firing in the air. As there was no warning from the army, the people in the rally started

running but found themselves surrounded by army. A huge stampede occurred, in which, as per

the estimate of government, one thousand and five hundred people died.105

It is a clear violation of the human rights as Joshen‟s army caused the large scale loss of

life by firing and stampede which was without a warning. Hence, the intervention of sangala is

justified.

2. Right to Development is an inalienable Human Right

Human Rights are universal and inalienable.106

The Commission passed two resolutions107

as the right to development as human right.108

Every human and all persons and every human

being have the right to enjoy and participate in the development and fully realization of rights.109

First generation and Second generation rights are to be treated at par for its promotion,

implementation and safe-guarding on the urgent basis.110111

. Right to development must be

fulfilled so as to equitably meet developmental environmental needs of present and future

generations.112

In the Vienna conference, 1993, the consensus between the developed and developing

countries emerged as right to development as human right.113

Sustained actions are required to be

taken for rapid development in the developing countries.114

105

Fact Sheet ¶ 13 106

Your Human rights, United Nations Human Rights, Office of the High Commissioner for Human rights 107

United Nations Security Council Resolution 418, Res. 4/1977 (4th

November 1977); United Nations Security

Council Resolution, 5/1979 (27th

April 2011) 108

Khurshid Iqbal, Declaration on right to development and implementation, University of Ulster 109


December 1986, Art. 1(1) 110

Supra note 108 111

Ibid, Art. 6 112

Rio Declaration on Environment and Development, 1992, Principle 3 113

Supra note 108


19

Hence, Right to development can be considered as an inalienable human right, Joshen as

a state has the obligation to fully realize the right to development.

3. ‘Me young Joshen’ Policy of Joshen restricted development of its citizens.

The policy „Me young Joshen‟ is restricting the development to its citizens. State have

the duty and obligation to formulate policies for the full realization of the right to

development.115

State should take steps at the national level for realization of the right to development. 116

and must ensure access to the basic resources, food, housing, health services, education and

employment.117

Joshen as a State fails to provide for the employment to its citizens.

Everyone has the right to freedom of movement and residence within the borders of each

state and everyone has the right to leave any country, including his own and to return his

country.118

State must ensure full establishment and exercise of right to development including

formation, adoption and implementation of policies and other measures at national or

international level.119

Popular participation of people for development is necessary120

4. Non-Industrialization in Joshen led to problem of migrants.

Industrialization is the condition where there is an increase in the importance of the

industry to an economy; it creates employment opportunities and development of skills.121

During

the 1880s and 1890s, the industrialization era in the United States, many black‟s migrated to the

States for employment from the rural to the urban cities.122

114


December 1986, Art. 4(1) 115

Supra note 114 116


December 1986, Art. 8(1) 117

Supra note 116 118

Universal Declaration of Human Rights, Art. 13; International Covenant on Civil and Political Rights, Art. 12 119

Ibid, Art. 10 120

Ibid, Art. 8(2) 121

Ayusgi, Advantages of Industrialization: Revision Notes on December 6, 2011 122

Industrialization, urbanization and Immigration: U.S. History, ch. 12, s. 2: Industrial Revolution


20

Joshen has failed to provide development and employment to its citizens, as a resulting

the citizens of Joshen have started migrating to Sangala for seeking employment. The Policy‟ Me

Young Joshen‟ is curbing the movement of the citizens of Joshen and hence, is restricting

development.

B. Joshen is liable to pay compensation for burdening Sangala

economically by producing migrants.

Everyone has the right to work, to free choice of employment, to just and favorable

conditions of work and to protection against unemployment.123

Joshen is liable to pay

compensation to Sangala because the artificial conditions created by Joshen led the influx of

migrants in Sangala thereby disrupting the economy. The citizens of Sangala were also unhappy

with the increasing number of asylum seekers from Joshen to their state as these asylum seekers

were providing cheap labour.124

123

Universal Declaration of Human Rights, Art. 23(1) 124

Fact Sheet ¶ 17

PRAYER WRITTEN SUBMISSION ON BEHALF OF SANGALA

2ND


21

PRAYER

WHEREFORE, IN THE LIGHT OF FACTS STATED, QUESTIONS PRESENTED, ARGUMENTS

ADVANCED AND AUTHORITIES CITED, SANGALA MOST RESPECTFULLY REQUESTS THIS

HON’BLE COURT TO ADJUDGE AND DECLARE THAT:

1) J o s h e n h a s v i o l a t e d S a n g a l a - J o s h e n p a c t 1 9 9 9 b y d i s c o n t i n u i n g

t h e s u p p l y o f i r o n o r e . J o s h e n s h o u l d p a y t h e c o m p e n s a t i o n f o r

t h e s a m e a n d s h o u l d c o n t i n u e t h e p a c t t i l l 2 0 3 3 .

2 ) R e s e r v a t i o n t o A r t i c l e 1 a n d 2 3 a r e i n c o m p a t i b l e t o I C C P R ,

t h u s , b o t h s h o u l d b e d e c l a r e d n u l l a n d v o i d .

3) J o s h e n h a s v i o l a t e d I n t e r n a t i o n a l h u m a n r i g h t s l a w b y d e n y i n g

r i g h t t o d e v e l o p m e n t o f i t s c i t i z e n s .

4 ) J o s h e n h a s v i o l a t e d F o u r t h G e n e v a C o n v e n t i o n R e l a t i v e t o t h e

P r o t e c t i o n o f C i v i l i a n s , 1 9 4 9 b y a t t a c k i n g s t e e l i n d u s t r i e s .

5 ) J o s h e n s h o u l d p a y a p p r o p r i a t e c o m p e n s a t i o n f o r a t t a c k o n s t e e l

i n d u s t r i e s a n d a l s o f o r b u r d e n i n g S a n g a l a e c o n o m i c a l l y b y

p r o d u c i n g m i g r a n t s .

6 ) S a n g a l a h a s j u r i s d i c t i o n t o t r y a n d p u n i s h G e n e r a l M a t h u k a n d

t h e r e w a s n o o b l i g a t i o n t o r e t u r n h i m t o J o s h e n .

AND TO PASS ANY SUCH OTHER ORDER, DISCRETION & JUDGMENT AS THIS HON’BLE COURT

MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

All of which is respectfully submitted

Sd/- ______________________

AGENTS FOR THE STATE OF SANGALA

Place: The Hague, The Netherlands

team code: 213 the international court of justice · 2nd vivekananda institute of professional...

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