AYASA

Good morning, Your Excellencies!

May it please the court.

My name is Lovella Fe Tacder, Second Counsel, appearing on behalf of the

Republic of Ayasa. I represent all the Ayasan Citizens, who were greatly affected
by the Limara Outbreak.

I will be dealing with the 2 remaining issues before the court today.

The first one concerns the alleged violation of the Republic of Ayasa of the
Indigenous Peoples Rights on their usage of the plant and second, the question
on the unlawful acquisition of Ayasa’s intellectual property rights over the plant
including the smoking process.

We submit primarily, Your Excellencies, that the use of plant by the Republic of
Ayasa is not a violation of the Indigenous People’s Right.

Your excellencies, we acknowledged that:

1. AYASA AND RAMIGO HAS PERMANENT SOVEREIGNTY OVER THEIR NATURAL
RESOURCES
a) In accordance with the United Nations Charter and International
Law
 States have the sovereign right to exploit their own resources
pursuant to their own environmental policies.
This right also includes the right exploit natural resources and
the right to be free from external interference over their
exploitation, provided that it does not violate legitimate rights.

States such as the Republic of Ayasa and the Confederation

of Ramigian Nations have the duty to refrain from intervention
in the internal or external affairs of one another. In fact, the ICJ
approved the duty of non-intervention in the Corfu Channel
Case, and pursuant to the Lotus Principle , both Ayasa and
Ramigo may exercise its State sovereignty in any way it wishes
so long as international law does not prohibit its actions.

However,

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2. Enjoyment of state’s resources may be lawfully subordinated to the interests

of society.
a) Each contracting party shall, cooperate in respect of areas beyond
national jurisdiction to complement activities in order to strengthen
ecosystem management.

 To this view, the Lusewa Rainforest and River System Protection

Agreement was created in order to prevent
i. destruction,
ii. vandalism, or
iii. unlawful taking of flora and fauna.
 Ayasa’s acts comport with the provisions of the CBD. Ayasa is
exercising its State sovereignty by grafting the Ramigian
branches of purahuaca with that of Ayasan branch to improve
the efficacy of Ayasan purahuaca samplesp22 —one that is not
prohibited by the PHR Agreement and international law. It also
does not negatively impact other states or areas beyond its
jurisdiction.

- PHRA, Article 20 states that the methods of harvesting the

purahuaca plants and the subsequent processing of the same
shall be chosen in consultation with the Council of Elders of the
Omeloi. In all undertakings in relation to the harvesting and
processing of the purahuaca, the traditional preparation will
be preferred, unless other methods would create more
effective versions of the drug. A learned expert of the Omeloi
tribe may be chosen to supervise the process of production
when possible.

Based on such agreement, only the method of HARVESTING is

required to be chosen in consultation with the Council of
Elders. In all other undertakings, including the processing of the
purahuaca, other methods may be resorted to if it would
create more effective versions of the drug.

With this in mind,

b) Other methods for harvesting and processing may be resorted to if it

makes the drug more potent.

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 Consistent with Article 20 of the PHR, Ayasa respected the

traditional preparation of the trees from harvesting to its
processing.

It only resorted to other means such as grafting the trees in a

glass house using the Ramigian soil since it would create a
more effective version of the drug.p22 In fact, during the
formulation of the PHR between the Omeloi and the Ayasan
government, the Omelosi allowed the Ayasan people and
machines to enter into their land to harvest the root. Also,
payment for the extraction of plant was discussed and
considered.p20

Since it has already been established that other methods for

harvesting and processing may be resorted to if it makes the
drug more potent, accordingly,

c) Incorporation of new techniques give long term benefits for the entire
community
 The Universal Declaration on Bioethics and Human Rights,
which adopted by acclamation the UNESCO General
Conference, considers the right of every human being to enjoy
the highest attainable standard of health and sharing of
benefits are all instrumental in promoting the right of every
human being.
 Thus, if indigenous communities can incorporate modern
practices, such as Grafting of Purahuaca Trees in a glass house
to make drug more potentp22 and use them to become
economically, politically and culturally empowered, there will
be long-term benefits for the entire community.

3. Ayasa did not commit any violation of customary international law

a) No violation of customary international law was committed.
 Generally, while the traditional method of harvesting and
processing purahuaca is preferred, there is no customary
international law obligation governing the method by which
purahuacas are harvested. For a customary international law

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to be considered as legally binding obligations, two

compulsory elements must be satisfied:
i. state practice – the “rule of consistent and
uniform usage” and
ii. opinio juris – a showing that states actions stem
from the belief that such practice is required by
law.

Since the Omelois cannot satisfy the requisite of widespread

state practice and opinio juris, Ramigo cannot create a
binding legal obligation as to the method of harvesting
purahuaca and the smoking in huacasera.

The absence of a uniform method by which purahuacas

should be harvested evidences a clear lack of obligation. The
Omeloi’s cannot impose upon Ayasa to follow the 7 day
process of Huacasera Ritual involving
i. Steam bath and prayers of cleansing for the
harvester
ii. Cutting limited number of trees to get the
taproot
iii. The 3-5th day, drying and smoking of the
taproot with the bark and flowers where the
Elders and priest drink 2 cups of mixture
iv. Where the brew drinking causes elders a
trance-like state which allows them to see
visions and assist them in decision making.p10

Assuming without conceding, that there is a violation of the

indigenous peoples right based on the The ILO 169 convention
which is the most important operative international law
guaranteeing the rights of indigenous peoples, we would like
to point out, Your Excellencies that

4. Ayasa is not bound by the ILO Convention 169

First, a treaty does not confer obligations or rights to a State
that has not consented to it. The ICJ held in the North Sea

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Continental Shelf Cases, that when a State signs but does not
ratify a treaty, the signatory State is not contractually bound
by it.

In that case, Your Excellencies, the ICJ reasoned that because

Germany was “at all times fully able and entitled” to ratify the
Geneva Convention, but chose not to, it is presumed that
Germany did not intend to be bound.

In the case before us, It is thus clear that Ayasa did not intend
to be bound by the ILO 169, and yet, it still respected the right
of the Indigenous Peoples such as the Omeloi through the rise
of the PHRA.

The Purahuaca Harvest and Research Arrangement (Annex B)

was negotiated between the Omeloi and the Ayasan
government, where the Omeloi allowed Ayasan people and
machines to enter into their land to harvest the root, but they
must pay for the extraction of the plants, the use of the
huacasera process, and any damage caused to the ancestral
lands.p20

Everything that Ayasa did was within the bounds of the

agreement.

More than that, Ayasa is not bound by the ILO Convention 169
because its terms are not “the common consent of the
international community.” CIL only binds the international
community only when a custom becomes accepted legal
practice. The alleged CIL is assessed in terms of
i. Generality
ii. Duration
iii. Consistency
iv. Opinio juris which means that a State believes that their
compliance is required by law. Therefore, the State
asserting the presence of a CIL must show that a
general, long- standing, consistent law has emerged
from States practicing in a way they feel legally
obligated to.

5. Ayasa did not violate the UNDRIP, ILO Convention No. 169, ICCPR and
ICESCR.
a) Ayasa acknowledged that the Omelois

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i. hold a legal title for its ancestral territories even

before 1915 andp7
ii. they have close ties to their lands and to the river
which establishes their territorial connection and
retain their own distinctive cultural and political
institutions.
For that reason, it cannot be gainsaid that the Ayasan
government violated the Omelois right as indigenous peoples

b) Altogether, Ayasa did not violate the ILO convention which

guarantees the rights of indigenous peoples and the UNDRIP
which, vis a vis, protects the indigenous people’s cultural heritage
and tradition.

c) Also, Ayasa did not violate the ICCPR and the ICESCR.
 The Ramigian Citizens were never subjected to arbitrary
or unlawful interference nor to unlawful attacks on their
honour and reputation.

 It was, in fact, the Council of Elders who violated Article

9 (1) of the ICCPR which prohibits unlawful and arbitrary
detention when it detained one of the Rylov researchers
until dawn.
(On the night of November 8, 2015, one of
the researchers was caught by an Omeloi
watchman stripping the bark with a
machete. He was brought by the
watchman to the Council of Elders, who
reprimanded the researcher and detained
him until dawn.)p19

6. THE CULTURAL PRACTICES OF OMELOI SUCH AS THE HUACASERA RITUAL

CANNOT PREVAIL OVER PUBLIC EMERGENCY

 It is wrong to invoke protection of tradition and cultural identity,

which is a de facto right, to prevent individuals from receiving
exact and adequate information on the causes of their
illnesses and obtaining effective treatment during a public
health emergency of international concern.
 A PHEIC is an extraordinary event which is determined to
constitute a public health risk to other States through the

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international spread of disease and to potentially require a

coordinated international response.
 Consequently, the emergence of the Purahuaca Harvest and
Research Arrangement which provides for the methods of
harvesting the Purahuaca plants and the subsequent
processing of the same assure that medical service and
attention, would create more effective versions of the drug.
It must again be stressed that Ayasan citizens
have a right to high-quality health care, regardless
of the medicine they are dealing with.

7. The public health emergency in Ayasa constitute a fundamental change

of circumstances.

a) Under the principle of rebus sic stantibus which is an accepted

customary doctrine following the Fisheries Jurisdiction case, codified
in Article 62 of the Vienna Convention on the Law of Treaties (‘VCLT’),
a Contracting Party may be freed from its obligations where the
circumstances leading to the conclusion of a treaty have changed.

The foundation of the formulation of the Purahuaca

Harvest and Research Arrangement are the agreed
methods of harvesting the purahuaca plants and the
subsequent processing of the same in consultation with
the Council of Elders of the Omeloi. It provided that in
all undertakings in relation to the harvesting and
processing of the purahuaca, the traditional
preparation will be preferred.

However, this provision of the PHR Agreement also

provides that when the situation demands, it may resort
to other methods which would create more effective
versions of the drug. The reoccurrence and severity of
the Limara outbreaksp16,20,32,34 could not have been
foreseen by Ayasa. Besides, Ramigo remained passive
and allowed the Limara disease to further spread the
virus. This resulted in many more human and indigenous
fatalities.p32 It is without question that Ayasa could not

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allow this threat to continue and that a fundamental

change of circumstance has occurred.

b) Ayasa has complied with the principles of the CBD

 Countries at different stages of development have different
capacities, and consequently, different levels and kinds of
responsibility for dealing with international environmental
issues.

The rise of the Limara Disease due to Fersila Island’s extreme

weather condition, specifically:
i. In 2011 when it was found that causes high-
fevers, vomiting, diarrhea, and in a deadly turn,
liver and brain damage within one week if not
treated.p12
ii. July 2015- during the rainy season, the
mosquito population surged in Ayasa, causing
a limara outbreak. From July to August alone,
20,000 cases had been reported.p15
iii. During the negotiation of the PHRA, the
number of infected had risen to 100,000, with
10,000 deaths in Ayasa.p20
iv. February 3, 2018, when the elders, burnt
purahuaca trees on the Ayasan side of the
border, fire raged on for 7 days, destroying 10%
of the Ayasan part of the Lusewa Rainforest. An
estimated 20% of the frog population was
decimated in the blaze. The loss of frog species
in the forest allowed the mosquito population
in Ayasa to grow faster for lack of natural
predators. Cases of limara skyrocketed in
March to 400,000 and the death toll was at
100,000.p32

The CBD provides qualified commitments, and their

implementation depends on particular national
circumstances and priorities of individual parties and resources
available to them. When:

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i. The Ayasa Department of Health found out about

the Chae-jen and Nadajo study and
recommended the importation of Ramigian
purahuaca,p15 coupled with the
ii. Declaration of a state of emergency due to the
limara outbreak by Ayasan President, Jolan
Votig,p16

the circumstances and particular requirements of developing

countries should be taken into account when considering one
State’s environmental obligations. Besides, as the right to
development is an inalienable human right, States have the
right and the duty to formulate appropriate development
policies to make improvements of the well-being of the entire
population.

Even for the sake of argument, Your Excellencies, that there is

a violation of the indigenous people’s right through the use of
the plant,

8. AYASA’S WRONGFULNESS IS PRECLUDED BY NECESSITY.

a) There is a failure on Omeloi’s part to participate on issues affecting
them
 Ayasa cannot be accused of
i. illegal harvesting under Article 20 of the Lusewa
Rainforest and River System Protection Agreement when
they cut 75p25 more purahuaca trees because the
arrangement was valid for one year and researchers
were allowed to extract more if the need arose.p25

 Given that the Organization for Animal Health has described

outbreaks as a global public health concern, any state
“cannot afford to miss the early signals” of a possible human
influenza pandemic. It is submitted that in this case,
i. despite Ramigo’s knowledge on the results of the
studies of Dr. Li Chae-jen and Dr. Ela Nadajo of
Center for Research on Tropical Medicine in the

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National University of Pattali that there are no

limara cases in Omeloi tribe;p13
ii. smoking ritual drove away the mosquitoes;
iii. purahuaca has malaria-treating capabilities; and
that
iv. it can cure any suffering,
Ramigo did not enter into any agreements which may have
prevented the outbreaks.
 This is contrary to Article 15 of the CBD which
necessitate Ramigo to share in a fair and
equitable way the results of research and
development and the benefits arising out of the
utilization of genetic resources.
Hence,
b) The acts of Ayasa in harvesting and grafting the purahuaca trees
were justified under the doctrine of necessity:
 The ICJ concluded in the Gabcikovo-Nagymaros Project
that under customary international law, several conditions
must be present for a state of necessity to exist. Ayasa
satisfactorily showed that the act
i. must have been occasioned by an
‘essential interest’ of the acting state;
ii. that interest must have been threatened
by a ‘grave and imminent peril,’ and
iii. the act being challenged “must have
been the ‘only means’ of safeguarding
that interest. Furthermore,
iv. the state must not have ‘contributed to
the occurrence of the state of necessity.
These elements are satisfied in the instant case.
i. must have been The increasing number of the
occasioned by an ‘essential infected citizens of the limara
interest’ of the acting state; outbreak is threateningp12,15,20,32

ii. that interest must have For a peril to be grave and

been threatened by a ‘grave imminent,
and imminent peril,’  it must have been a
threat to the interest at

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the time the measures

were taken.
 it must have been a
threat to the interest at
the actual time.
It started in 2011 until 2017
iii. the act being Given the fact that Ramigo is a
challenged “must have been more developed state , despite
the ‘only means’ of its knowledge of the need to
safeguarding that interest. formulate a cure of the limara
diesease, it failed to implement
measures to address the spread
of infection.p5 Ayasa had no
option but to unilaterally act to
the best of its ability to protect its
citizens’ food supply, and
economy.p34
iv. the state must not have The 2015 and 2018 limara
‘contributed to the occurrence outbreaks were due to Fersila
of the state of necessity. island’s extreme weather
condition,p12 a finding not
contested by Ramigo. Despite
being a more developed
country, the latter did not take
any steps to help prevent the
repeated outbreaks. The
situation of necessity is thus
attributable to Ramigo, not to
Ayasa.

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On to our 4th submission, Your Excellencies,

We posit that,

Ayasa rightfully acquired intellectual property rights over the plant.

First, it
1. Met all the criteria of Patentability
 The exclusive privilege granted to the inventor gives the patent
holder the right to manufacture use or sell the patented product
provided that it meets the three required criteria before a patent
protection can be applied. It has to be
i. new,
ii. non-obvious, and
iii. useful
new The newness requirement is difficult to prove for
Indigenous Peoples because cultural knowledge
is passed down from generation to generation.
 Contrary to the claim of the Omeloi’s
that the Drug was patented without
recognition of tribes contribution to its
development and process, still,29 it
cannot be denied that there is yet
any printed publication regarding
the smoking process of the
puruhuaca.
Non-obvious The non-obvious requirement is designed to
advance the state of useful arts by limiting the
issuance of patents. the US Supreme court held in
the Diamond v. Chakrabarty, has allowed
pharmaceutical and agrochemical companies
to appropriate Indigenous Peoples’ plants by
taking them back to the laboratory and
extracting the “active” ingredient and claiming it
as their own invention.
 The Chief Elder protested when he
saw the grafting process, saying that
it was against tribal custom to graft

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plants since it would make the

original plant unclean.p23
This shows that the art of grafting in
making the plant more potentp23 has
never been done by the Omeloi’s
 the best evidence of right the
Omeloi’s have is the declaration of
the UNESCO as a World Heritage Site
due to its “outstanding universal
value from the point of view of
science or conservation.”p26
Assuming arguendo that, the invention has been
known to belong to the Omelois
 Article 30 of TRIPS provides that
Compulsory licenses are allowed in
situations where there are overriding
political or social objective that
require a compulsory license. TRIPS
provides limited exceptions to this
right of exclusivity under which,
compulsory licenses are allowed.
useful The patent was granted in the situation of national
emergency.
The Declaration on the TRIPS Agreement and
Public Health grants to each Member the right to
determine what constitutes a national
emergency.
 Limara, in the light of the meaning of
“epidemic,” is something that
spreads rapidly and extensively by
infection and affects many
individuals in an area or population
at the same time.

2. Similarly, the patent issued is valid and no biopiracy was committed.

 The appropriation of plants and cultural knowledge is called
biopiracy.

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 Huacaxin specifically treats Limara Disease and such claim did not
incorporate the 7-day ritual process known as the Huacasera Ritual.
Thus the use of Purahuaca trees in mitigating the widespread
of Limara disease, when Rylov patented the Huacaxin using
modern technologies, is rightfully recognized as an unknown
invention at the time of patentability.

This extended coverage defies the basic premises of patent

law that inventions should receive protection only when
disclosed, and that the disclosure of a broader scope of
invention dedicates what is not claimed to the public.

The Omeloi’s have no claim over the use of purahuaca trees

in the Huacaxin relating it to be an equivalent of the smoking
ritual which drove away the mosquitoes.

The protection of Huacaxin is protection of the chemical

combination that makes up Huacaxin.

In this light, Ramigo has the burden of showing that Ayasa infringes the former’s
inexistent patent. An alleged infringer is not required to go forward with evidence
to suggest that his conduct does not infringe the rights of the patent owner.

The Republic of Ayasa, with all due respect, prays that this court declares:

1. That the Confederation of Ramigian Nations be held liable for the

worsening of the outbreak due to the loss of cultivated plants and
2. In violating Environmental Laws by burning the border trees
3. That the use of the plant by Ayasa’s citizens is not violation of indigenous
peoples’ rights and lastly,
4. That the Republic of Ayasa has rightfully acquired intellectual property
rights over the plant

In and on behalf of the

 400,000 Ayasan Citizens who were infected by the Limara Disease and the
 100,000 Ayasan Citizen who have gone before us due to the outbreak, the
 500 Ayasan citizens who were injured during the fire and
 70 others who were killed,

we thank you for listening. Good Morning, Your Excellencies. May it Please the
court.

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