119R PDF

119R
ANNÉE · YEAR
2019
COUR INTERNATIONALE INTERNATIONAL COURT
DE JUSTICE OF JUSTICE
THE CASE CONCERNING THE KAYLEFF YAK
(THE STATE OF AUROK / THE REPUBLIC OF RAKKAB)
________
L'AFFAIRE CONCERNANT LES YAK KAËLEFF
(L’ ÉTAT D’AUROK / LA RÉPUBLIQUE DE RAKKAB)
________
MEMORIAL FOR THE RESPONDENT
MÉMORIAL POUR LE DÉFENDERESSE

PRELIMINARY PAGES
TABLE OF CONTENTS
INDEX OF AUTHORITIES iv
TREATIES
JUDICIAL DECISIONS v
Decisions of the International Court of Justice and the Permanent Court
of International Justice
Decisions of other Courts and Tribunals
ARTICLES vii
UN viii
DOCUMENTS ix
MISCELLANEOUS ix
STATEMENT OF JURISDICTION xviii

QUESTIONS PRESENTED xix
STATEMENT OF FACTS xx
SUMMARY OF PLEADINGS xxv
PLEADINGS AND AUTHORITIES 18
I. RAKKAB IS NOT RESPONSIBLE FOR INTERNATIONALLY WRONGFUL 18
ACTS BECAUSE DORTA’S ACTIONS ARE NOT ATTRIBUTABLE TO
RAKKAB AND FOR ITS FAILURE TO PREVENT DORTA FROM
COMMITTING THE WRONGFUL ACTS.
A. The acts of DORTA are not attributable to Rakkab. 19
B. DORTA’s acts, as a private entity, are not attributable to Rakkab. 22
i
II. THE HARVESTING OF THE YAK IN RAKKAB DOES NOT 23
VIOLATE ITS INTERNATIONAL OBLIGATIONS RELATING TO
THE PROTECTION OF ENDANGERED SPECIES AND THE
ENVIRONMENT.
A. There is sustainable use and harvesting of the Kayleff Yaks. 24
III. RAKKAB DID NOT VIOLATE ANY CULTURAL AND RELIGIOUS 30

RIGHTS OF THE PEOPLE OF AUROK BECAUSE THE HARVESTING
OF THE YAK DOES NOT PREVENT THE TRADITIONAL PRACTICE
OF THE PIVZAO PEOPLE, THUS IN VIEW OF THE PRESSING NEED
AND HEALTH BENEFITS OF GALLVECTRA, THERE IS NO
REASON TO PROHIBIT THE HUNTING OF THE YAK AT A
SUSTAINABLE RATE.
A. Rakkab did not violate any indigenous people’s rights under the 30
Indigenous and Tribal People’s Convention of 1989 (No. 169).
B. Rakkab did not violate any indigenous people’s rights under the 33
International Covenant on Economic, Social and Cultural Rights.
C. Rakkab did not violate any indigenous people’s rights under the 36
International Covenant on Civil and Political Rights.
D. The Yaks, being a migratory species, are res nullius, and thus 37
Rakkab has a right to them when they are within the territory of
Rakkab.
1. As no property rights are involved, there is only a legal obligation
to consult, but not necessarily to agree
IV. RAKKAB HAS NO OBLIGATION TO PAY AUROK, A PORTION 40

OF THE PROFITS REALIZED FROM SALES OF THE DRUG
GALLVECTRA AS NO APPROPRIATION OF TRADITIONAL
KNOWLEDGE WAS COMMITTED BY RAKKAB.
A. Isolating Lustk Enzyme and its transformation into Gallvectra is 42
not Traditional Knowledge.
ii
B. Kayleff Yaks are migratory species and are therefore not of Aurok 43
origin.
C. DORTA lawfully acquired intellectual property rights over
Gallvectra in compliance with the Paris Convention for the Protection of 44
Industrial Property of 1883..
D. DORTA has also lawfully acquired intellectual property rights over

Gallavectra following International Customary Law. 45
PRAYER FOR RELIEF 49
iii
PRELIMINARY PAGES
INDEX OF AUTHORITIES
TREATIES
Convention on Biological Diversity, Dec. 29, 1993: 8, 25
Convention on the Conservation of Migratory Species of Wild Animals,

Nov. 1, 1983:
10, 12, 22, 27
Convention on International Trade in Endangered Species of Wild Fauna and

Flora, Jul. 1, 1975:
9, 10
General Agreement on Tariffs And Trade - Multilateral Trade Negotiations:

Agreement On Trade-Related Aspects Of Intellectual Property Rights,
January 1994,33 I.L.M. 81 [hereinafter TRIPS]:
29, 30
Indigenous and Tribal Peoples Convention, Jun. 27, 1989:

14, 15, 16, 24
International Covenant on Economic, Social and Cultural Rights, Jan. 3,

1976:
16
International Covenant on Civil and Political Rights, Mar. 23, 1976:

19
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable
Sharing of Benefits Arising from their Utilization, Oct. 29, 2010:
25, 27
iv
Paris Convention for the Protection of Industrial Property of 1883:
28, 29, 31
Responsibility of States for Internationally Wrongful Acts, 2001:

1, 2, 4
Statute of the International Court of Justice:

29
Vienna Convention on the Law of Treaties, May 23, 1969:

8, 28
JUDICIAL DECISIONS
Decisions of the International Court of Justice and the Permanent Court

of International Justice
Case Concerning Military and Paramilitary Activities In and Against

Nicaragua (Nicaragua v. United States of America); Merits, International
Court of Justice (ICJ), 27 June 1986, available at:
https://www.refworld.org/cases,ICJ,4023a44d2.html [accessed 11 January
2019]:
3
Factory at Chorzów, Germany v Poland, Order, Indemnity, (1928) PCIJ

Series A No 17, ICGJ 256 (PCIJ 1928), 13th September 1928, League of
Nations (historical) [LoN]; Permanent Court of International Justice
(historical):
7
v
Great Britain v. Spain, ( 1924 ) 2 R.I.A.A. 615.:
6
Reparation for injuries suffered in the service of the Nations, Advisory

Opinion, [1949] ICJ Rep 174, ICGJ 232 (ICJ 1949), 11th April 1949,
International Court of Justice [ICJ]:
7
Whaling in the Antarctic, Australia and New Zealand (intervening) v Japan,

Judgment, ICJ GL No 148, ICGJ 471 (ICJ 2014), 31st March 2014,
International Court of Justice [ICJ]:
11, 12
Decisions of other Courts and Tribunals
AWARD OF THE ARBITRAL TRIBUNAL ESTABLISHED UNDER THE

TREATY SIGNED IN WASHINGTON, ON THE 29TH OF FEBRUARY
1892, BETWEEN UNITED STATES AND HER MAJESTY THE QUEEN
OF UNITED KINGDOM OF GREAT-BRITAIN AND IRELAND
(RELATING TO THE RIGHTS OF JURISDICTION OF UNITED STATES
IN THE BERING’S SEA AND THE PRESERVATION OF FUR SEALS),
DECISION OF 15 AUGUST 1893:
21
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511,

2004 SCC 73:
23
vi
ICSID, Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, Case
No. ARB/05/22:
1
International Corporation v. Government of the Islamic Republic of Iran, 9
Iran-U.S. Cl. Trib. Rep. 72 (Hyatt 1985):
3
Lansman et al. v. Finland, Communication No. 511/1992, U.N. Doc.

CCPR/C/52/D/511/1992 (1994):
20
Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International

Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, available
at: https://www.refworld.org/cases,ICTY,40277f504.html [accessed 11
January 2019]:
5
Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations,

and Cost, Inter-Am. Ct. H.R. (ser. C) No. 174, ¶ 63 (Nov. 28, 2007):
13
United States v. Canada, ( 1938 and 1941 ) 3 R.I.A.A. 1905.:

5
United States v. Mexico, (1931) 4 R.I.A.A. 669.:

3
ARTICLES
Garrison, The Convention on International Trade in Endangered Species of

Wild Fauna and Flora (CITES) and the Debate over Sustainable Use 1994:
8, 9
vii
Glowka, Complementarities between the Convention on Migratory Species
and the Convention on Biological
Diversity,https://www.cbd.int/doc/articles/2002-/a-00309.pdf:
6, 7, 8
Genetic Resources. WIPO. https://www.wipo.int/tk/en/genetic/:

26
Using Traditional Knowledge Related to Genetic Resources. Swedish

Environmental Protection Agency.
http://www.swedishepa.se/Guidance/Guidance/Species-Protection/Genetic-
resourses/Utilizing-traditional-knowledge/:
27
Traditional Knowledge. WIPO. https://www.wipo.int/tk/en/tk/:

26
UN
Sustainable Development Goals, Goal 3: Good Health and Well-Being:

15
UN Committee on Economic, Social and Cultural Rights (CESCR), General

comment no. 21, Right of everyone to take part in cultural life (art. 15, para.
1a of the Covenant on Economic, Social and Cultural Rights), 21 December
2009, E/C.12/GC/21, available at:
https://www.refworld.org/docid/4ed35bae2.html [accessed 9 January 2019]:
17
viii
UN Legislative Series, Materials on the Responsibility of States for
Internationally Wrongful Acts 2012:
1, 2, 4, 5
DOCUMENTS
Morgera and Wingard, Principles for Developing Sustainable Wildlife

Management Laws, 2008 http://www.fao.org/3/a-bb108e.pdf:
8
MISCELLANEOUS
World Health Organization Model List of Essential Medicines:

15
ix
PRELIMINARY PAGES
STATEMENT OF JURISDICTION
The State of Aurok and the Republic of Rakkab have submitted by Special Agreement
this present dispute concerning the differences between the parties concerning the Kayleff Yak
of the Sun and other matters to the International Court of Justice (“I.C.J.”), and have transmitted
a copy thereof to the Registrar of the Court in accordance with Article 40(1) of the Statute of the
I.C.J. (“Statute”). Therefore, both parties have accepted the jurisdiction of the Court pursuant to
Article 36(1) of the Statute.
The Republic of Rakkab undertakes to accept the judgment of the Court as final and
binding and shall execute it in utmost good faith.
x
PRELIMINARY PAGES
QUESTIONS PRESENTED
I.
Whether Rakkab is responsible for the internationally wrongful acts described in sub- paragraphs
(b)-(d), infra, because DORTA’s actions are attributable to Rakkab, or in the alternative, Rakkab
is responsible for its own failure to prevent DORTA from committing those wrongful acts;
II.
Whether the harvesting of the Yak in Rakkab violates Rakkab’s international obligations relating
to the protection of endangered species and the environment, including those under relevant
conventions, and therefore must cease;  
III.
Whether the harvesting of the Yak in Rakkab violates the cultural and religious rights of the
people of Aurok;
IV.
Whether Rakkab must pay Aurok,a portion of the profits realized from sales of the drug
Gallvectra, because of the alleged appropriation and exploitation of traditional knowledge
belonging to the Aurokan people without compensation is inconsistent with international law.
xi
PRELIMINARY PAGES
STATEMENT OF FACTS
THE REPUBLIC OF RAKKAB
The Republic of Rakkab encompasses 30 percent of the Gaur Highlands. As of 2015, the
multi-ethnic population of Rakkab was 4.5 million. Census reports and informal surveys indicate
that there are fewer than 200 adherents to the Pivzao traditions among the population of Rakkab.1
A major component of Rakkab’s economic success has been its investment, beginning in the
1960s, in research and development. The mandate of the government’s Department of Research,
Technology & Application, established in 1965, included “the pursuit and dissemination of
scientific discoveries, including … new medicines and treatments.”2
In February 1996, Rakkab’s Parliament adopted legislation to privatize the Department of

Research, Technology & Application.3 Rakkab has since the middle of the 20th century
witnessed a significant increase in its rates of childhood and adult obesity, diabetes, and several
other lifestyle-related diseases.4
The Republic of Rakkab joined the United Nations, World Health Organization, in 1962.
Both are also parties to the Vienna Convention on the Law of Treaties, the International
Covenant on Civil and Political Rights, the International Covenant on Economic, Social and
Cultural Rights, the Paris Convention for the Protection of Industrial Property of 1883 as
amended, the Convention on International Trade in Endangered Species of Wild Flora and Fauna
of 1973, the Convention on the Conservation of Migratory Species of Wild Animals of 1979, the
Indigenous and Tribal Peoples Convention of 1989, and the Convention on Biological Diversity
of 1992 and its 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from Their Utilization.5
1
R. ¶ 8
2
R. ¶ 9.
3
(R. ¶ 10)
4
(R. ¶ 12)
5
(R. ¶ 48)
xii
THE KAYLEFF YAK
Fossil records indicate that the Gaur Highlands have been the exclusive habitat of the
majestic Kayleff Yak (Bos mumuensis, or “the Yak”) for more than 250,000 years.6 An average
adult male Yak weighs between 800 and 900 kilograms and stands 160 centimeters tall at the
withers; adult females weigh between 400 and 500 kilograms and stand 150 centimeters. A
motivated Yak can reach speeds of up to 45 kilometers per hour, and a migrating herd of Yak
can sustain speeds of 25 kilometers per hour for hours at a time.7 Dr. Isaac Bello, a Rakkabi-
licensed medical doctor and a citizen of Rakkab, during his hospital practice observed that the
incidence of diabetes and obesity was consistently and markedly lower among his Aurokan
patients than among his Rakkabi patients. Dr. Bello concluded that the discrepancy was
correlated with a never-before-identified enzyme found in the gallbladder of the Yak, a key
ingredient in Tirhinga Nos Lustuk.8 Over the years, they determined that the drug was highly
effective in the treatment of diabetes and related disorders.9
THE DEPARTMENT OF RESEARCH, TECHNOLOGY & APPLICATION (“DORTA”)
One of the major components of Rakkab’s economic success is in its in research and
development. The mandate of the government’s Department of Research, Technology &
Application included new medicines and treatments.10 In February 1996, Rakkab’s Parliament
adopted legislation to privatize the Department. The newly private company, DORTA M/S
(“DORTA”) was incorporated in Rakkab on 6 April 1996.11 By 2003, Dr. Bello and a team of
DORTA biologists isolated the Lustuk Enzyme and used it to produce an experimental
medication. DORTA then applied to the Rakkab Ministry of Health for permission to begin
clinical trials, including trials on human subjects, to test its efficacy.
Over the course of two years of testing, they determined that the drug was highly
effective in the treatment of diabetes and related disorders.12 DORTA filed a patent application
with the Rakkabi Intellectual Property Ministry for the medication derived from the Lustuk
Enzyme, which it named “Gallvectra,” to treat insulin resistance-related diseases.13
6
(R. ¶ 2)
7
(R. ¶ 1)
8
(R. ¶ 13)
9
(R. ¶ 14)
10
(R. ¶ 9)
11
(R. ¶ 10)
12
(R. ¶ 14)
13
(R. ¶ 15)
xiii
MEDICINAL IMPORTANCE OF HARVESTING YAK IN PROMOTING RIGHT TO
HEALTH WORLDWIDE
Since the middle of the 20th century, Rakkab, witnessed a significant increase in its rates
of childhood and adult obesity, diabetes, and several other lifestyle-related diseases.14 A team of
DORTA biologists, during a clinical test, isolated the Lustuk Enzyme and used it to produce an
experimental medication. Over the course of two years, the drug was determined highly effective
in the treatment of diabetes and related disorders.15 At the 20th Expert Committee on the
Selection and Use of Essential Medicines in March 2017, Gallvectra was added to the WHO
Model List of Essential Medicines.16 As of 2018, Gallvectra has been approved for use and sale
by DORTA for the treatment of insulin resistance-related diseases in more than 85 countries.17
On 11 November 2004, DORTA filed a patent application with the Rakkabi Intellectual
Property Ministry for the medication derived from the Lustuk Enzyme, which it named
“Gallvectra,” to treat insulin resistance-related diseases.18 The work of Dr. Bello and other
scientists at DORTA led directly to the isolation of the Lustuk Enzyme and its discovery as a
medical treatment of insulin-resistant diseases. Although Aurokan people have consumed Yak
gallbladders for many years and continue to do so, they never produced a reliable, consistent
prescription drug for human use. This will not prevent the use of Aurokans in accordance to their
traditions.19
More so, the Rakkabi Ministry of Agriculture released on all major digital platforms an
application called “YakTrakker” which drew unmanned drones and satellites to provide real-time
tracking of Yak herds in Rakkab to allow scientists and conservationists to make accurate
estimates of the health and vitality of the Yak population.20
14
(R. ¶ 12)
15
(R. ¶ 14)
16
(R. ¶ 37)
17
(R. ¶ 20)
18
(R. ¶ 15)
19
(R. ¶ 18)
20
(R. ¶ 34)
xiv
PRELIMINARY PAGES
SUMMARY OF PLEADINGS
Rakkab is not responsible for internationally wrongful acts because DORTA’s

actions are not attributable to Rakkab and for its failure to prevent DORTA from
committing the wrongful acts.
DORTA’s actions are not attributable to Rakkab as the elements State
Responsibility for International Wrongful Acts are not present.
DORTA does not fall under any of the entities whose acts may be attributable to
the State. It is not a state organ as it is a private company. It is also not an entity exercising
government authority. Neither does Rakkab control DORTA.
DORTA, while incorporated in Rakkab and subsidized by the Rakkabi
government, the company publicly trades its shares on the New York Stocks Exchange. Rakkab
only holds approximately 12% of its shares to date. These shares act as investment and does not
vest Rakkab control over the corporation. These factors support the fact that DORTA is a private
corporation separate from the State of Rakkab.
Thus, as a private entity, its acts cannot be attributable to the State of Rakkab.
II
The harvesting of the yak in Rakkab does not violate its international obligations
relating to the protection of endangered species and the environment.
Rakkab did not commit any breach or violation of its international obligation through the
conduct of DORTA as the harvest of Kayleff Yaks (yaks) is conducted in a sustainable manner at
a sustainable rate in consonance with customary international law.
The listing of species under Appendix III indicates that the Kayleff Yaks are not species
threatened by extinction as differentiated from those listed under Appendix I and II of the CITES
Convention.
CITES does not prohibit exploitation and trade of natural resources but only “over-
exploitation. In the context of DORTA and through the national laws of Rakkab, this model is
maintained.
Rakkab conducted a comprehensive environmental impact assessment, focused on the
impact of continued hunting of the Yak which concluded that Regulation AG/2017-0300 would
xv
be adequate to protect the sustainability of the Yak population. Rakkab did not breach any of its
international obligations relating to the protection of wildlife and environment.
III
Rakkab did not violate any cultural and religious rights of the people of Aurok
because the harvesting of the yak does not prevent the traditional practice of the Pivzao
people, thus in view of the pressing need and health benefits of Gallvectra, there is no
reason to prohibit the hunting of the yak at a sustainable rate.
The harvesting of the yaks in no way prevents the enjoyment of people of Aurok of their
right to enjoy their culture as they are not prevented from engaging of the practice of traditional
yak hunting.
Rakkab had not violated any of Indigenous People’s rights as enshrined in the ILO’s
Convention No. 169, ICESCR, and the ICCPR, and other relevant international instruments.
Indigenous People’s rights cannot interfere with the exercise of other human rights,
among which include, the right to health and the universal right of access to healthcare which
Rakkab is promoting through the sale of Gallvectra, which was included in WHO’s Model List
of Essential Medicines.
Since no property rights of the Indigenous People of Aurok are involved in this case, as
the Yak being a migratory species, is res nullius, the duty to obtain free and prior informed
consent is only limited to the duty to consult, which Rakkab has done so through its legislative
and administrative processes before issuing the Regulation.
IV
Rakkab has no obligation to pay Aurok, a portion of the profits realized from sales of the
drug Gallvectra as no appropriation of traditional knowledge was committed by Rakkab.
Rakkab does not owe Aurok any share of the profits, as the Gallvectra is not traditional
knowledge associated to genetic resources as contemplated under the Nagoya protocol.
The conception of Gallvectra is based on an independent and patented study and the
discovery of the enzyme was made not from the practice of traditional knowledge but from its
subsequent effects.
xvi
The subject matter of the patent is not traditional knowledge thus benefit-sharing under the
Nagoya protocol will not apply.
Gallvectra also fulfills the requisites of patentibility. It is an invention which is novel,

includes an inventive step, and capable of industrial application as evidence of its status as a
commercial medicine. DORTA was the first to lawfully register the patent in compliance with
the Paris Convention.
xvii
WRITTEN SUBMISSIONS ON BEHALF OF RAKKAB
PLEADINGS
I. RAKKAB IS NOT RESPONSIBLE FOR INTERNATIONALLY WRONGFUL ACTS

BECAUSE DORTA’S ACTIONS ARE NOT ATTRIBUTABLE TO RAKKAB AND FOR
ITS FAILURE TO PREVENT DORTA FROM COMMITTING THE WRONGFUL
ACTS.
DORTA’s actions are not attributable to Rakkab. The standards set forth in the 2001 Draft
Articles on State Responsibility (RSIWA) is governing in this case as both parties are signatories
to the United Nations. Aurok alleges that Rakkab is liable for the alleged internationally
wrongful acts committed by the privatized DORTA in harvesting Kayleff Yaks in its territory.
The RSIWA is the codification of the rules of customary international law on the Responsibility
of States for their internationally wrongful acts.21
Article 2 of RSIWA provides for the elements to constitute liability of the state for an
internationally wrongful act: There is an internationally wrongful act of a State when conduct
consisting of an action or omission: (a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State22. This specifies the
conditions required to establish the existence of an internationally wrongful act of the State.23
Rakkab submits that the aforementioned essential elements were not satisfied to constitute
liability upon Rakkab, on the following grounds: (1) The acts of DORTA are not attributable to
the State of Rakkab; and (2) even if it is attributable, Rakkab did not breach any international
obligation.
21
ICSID, Biwater Gauff (Tanzania) Ltd. v. United Republic of Tanzania, Case No. ARB/05/22,
award, 24 July 2008, paras. 773 and 774.
22
Art 2, RSIWA 2001
23
UN Legislative Series, Materials on the Responsibility of States for Internationally Wrongful
Acts 2012
18
A. The acts of DORTA are not attributable to Rakkab.
DORTA does not fall under any of the entities whose acts may be attributable to the state
under RSIWA, mainly: (1) as a State Organ24; (2) an Entity exercising governmental authority25;
and (3) an entity conducted or controlled by the state26.
Firstly, Article 4 of RSIWA provides that: The conduct of any State organ shall be
considered an act of that State under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in the organization of the
State, and whatever its character as an organ of the central Government or of a territorial unit
of the State.27 An organ of a state includes any person or entity which has the status in
accordance with the internal law of the State.28 “State organ” covers all the individual or
collective entities which make up the organization of the State and act on its behalf.29 For an
entity to be a state organ, it must be part of the organization of the state and must also exercise
governmental functions.
DORTA M/S(DORTA) is a private entity operating as a manufacturer of pharmaceuticals

with subsidiaries in over 50 countries.30 While incorporated in Rakkab and subsidized by the
Rakkabi government, the company publicly trades its shares on the New York Stocks Exchange.
Rakkab only holds approximately 12% of its shares to date.31 The entity was incorporated
through legislation of the Rakkab Parliament. Being a private entity with separate personality
which enjoys autonomy to operate as a private business organization. These factors support the
fact that DORTA is a private corporation separate from the State of Rakkab. Therefor, DORTA
is not a state organ of Rakkab.
24
Art 4, RSIWA 2001
25
Art 5, RSIWA 2001
26
Art 8, RSIWA 2001
27
Art 4(1), RSIWA 2001
28
Art 4(2), RSIWA 2001
29
Acts 2012
30
Par 11, Compromis
31
Par 10, Compromis
19
Secondly, DORTA is not an entity exercising governmental authority. Article 5 of the
RSIWA provides that: The conduct of a person or entity which is not an organ of the State under
article 4 but which is empowered by the law of that State to exercise elements of the
governmental authority shall be considered an act of the State under international law, provided
the person or entity is acting in that capacity in the particular instance.32 In prominent cases
decided by international tribunals, the exercise of governmental authority involves the delegation
of the state of its sovereign powers to persons or entities in furtherance of the interest of the state
delegating it.
In the case of Hyatt International Corporation v Government of the Islamic Republic of Iran,
the tribunal held that the conduct of seizure and confiscation of goods belonging to foreigners by
Hyatt, a charitable foundation, under the empowerment given by Iranian authorities was
considered as an act of expropriation by the state.33 Additionally, Military and Paramilitary
Activities in and against Nicaragua case, the ICJ held that the United States of America’s
unilateral control over paramilitary assets in the territory of Nicaragua and its exercise of military
activities were attributable to USA because of the its effective control.34
Article 5’s application for attribution to constitute requires a certain link between the act of
the entity and authority of the state. Generally, this is evident in the form of control, but as courts
have decided, it is not necessary that actual control is exercised to establish this link. 35 However,
it is evident from application that such empowerment or delegation of authority must be to some
form of sovereign act – i.e. expropriation, exercise of police power of the state.
While DORTA was formerly an instrumentality of Rakkab, it lost such status through the
legislation privatizing the entity. From the tenor of the legislation, Rakkab sought to give the
DORTA the full operational capacity to operate as a private entity. This is evident in the
prohibition for the employment or appointment to the Board of current Rakkabi government
32
Art 5, RSIWA 2001
33
Hyatt International Corporation v Government of the Islamic Republic of Iran
34
Military and Paramilitary Activities in and against Nicaragua
35
Dickson Car Wheel Company Case
20
officials.36 While it is true that the Rakkabi government fully subsidizes the research and
development of DORTA, it does not exercise any form of control over the company. The act of
holding 12% of the company’s shares and the subsidy are acta jure gesntionis of Rakkab and
does not establish a link evidencing empowerment to DORTA to exercise governmental
authority or sovereign powers of Rakkab.
Acta jure gestionis or commercial or private acts of the state are distinct from acts performed
by the state in the exercise of its sovereign authority or acta jure empirii. In application, both are
afforded some level of distinction, especially in the issue of state immunity. In this case, Rakkab
submits that Article 5 of RSIWA does not contemplate acta jure gestionis as a link that gives an
entity the power to exercise governmental authority. Such contemplation is only made for Article
4 of RSIWA for this pertains to organs which are part of the structure of the state. 37 Under
Article 5, if it is to be regarded as an act of the State for purposes of international responsibility,
the conduct of an entity must accordingly concern governmental activity and not other private or
commercial activity in which the entity may engage.38
Finally, Article 5 of RSIWA must be read entirely in connection with Article 8 which
provides that 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.39 This article
significantly strengthens the requirement of link between the entity and the state in order for
attribution to be constituted.
As a general principle, the conduct of private persons or entities is not attributable to the
State under international law. Circumstances may arise, however, where such conduct is
nevertheless attributable to the State because there exists a specific factual relationship between
the person or entity engaging in the conduct and the State. Article 8 deals with two such
36
Par 11, Compromis
37
Acts 2012
38
id
39
Art 8, RSIWA 2001
21
circumstances – (1) persons acting on the instructions of the state; and (2) persons acting the
states direction and control.40 In the case of Prosecutor v. Duško Tadić, International Tribunal for
the Former Yugoslavia, the tribunal held that the degree of control necessary for attribution of
state was overall control. The tribunal defined this as control that goes beyond financing and
equipping the entity and also involving participation and supervision of the person or entity.41
Verily, this is not the case for DORTA and the Rakkabi government. DORTA enjoys pure
autonomy as a private entity and is conducting business in its full capacity in multiple
countries.42 While financed through subsidy, Rakkab does not exercise any form of control in its
business operations. Moreover, the 12% share which Rakkab holds is the state’s commercial act
as investment and does not vest Rakkab the power to control the corporation.43
B. DORTA’s acts, as a private entity, are not attributable to Rakkab.
As a rule, Corporations are considered as subjects of international law pursuant to these

entities possessing juridical personality. Verily, states have the responsibility over entities under
its jurisdiction and for the use of its territory.44 Rakkab respectfully submits that it has exercised
the necessary diligence of the State over the operation of DORTA as corporation under its
jurisdiction. It is in the Trail Smelter Case where the ICJ held that the obligation of diligent
control and regulation arises when there is actual and serious harm which is likely to occur
whereas according to the Corfu Channel Case the obligation arises if there is a known risk to
other States.45
DORTA has remained compliant with all the necessary requirements to legally operate under
the laws of Rakkab and that there is separability of liability between Rakkab as a state and
DORTA as a subject of the state. What is required for a State in the regular exercise of its powers
40
Acts 2012
41
Prosecutor v. Duško Tadić, International Tribunal for the Former Yugoslavia
42
Par 11, compromis
43
id
44
Trail Smelter Case
45
id
22
is the diligence and Rakkab has properly performed this diligence in the form of legislation and
regulation. As held in the Spanish Zone of Morocco Claims, if a State has not or could not
reasonably have been aware of a potential harm of an activity or, if it did not know and could not
reasonable have known it cannot be obligated to regulate such activities. Risk is a difficult matter
because one has to regard various elements; probability and scale of harm, causes of harm,
effects of the activities, and their interaction over time. Not often can judgements be given with
certainty. Sometimes States declare that they do not need to take measures in order to control
transboundary or global risks until there is scientific proof of eventual harm. Although it is
understandable that States want to know the origin and character of the problem before they take
action, such a high standard of proof could endanger the environment. It is when deciding the
standard of proof in situations like this that the precautionary principle comes into play.46
The precautionary principle requires approaching questions of sustainability of

use with the commitment to act in the way least likely to impair the viability of
the species or the integrity of the ecosystem affected. This may result in
decisions not to use. This precautionary principle is especially important when
estimating sustainable use levels.47
Therefor, following the precautionary principle, Rakkab, through its own studies and
consultation with the stakeholders of the issue of harvesting Kayleff Yaks, has exercised due
diligence in the conduct of regulating the business activities of DORTA, necessary to avoid a
breach in the states international obligations.
II. THE HARVESTING OF THE YAK IN RAKKAB DOES NOT VIOLATE ITS
INTERNATIONAL OBLIGATIONS RELATING TO THE PROTECTION OF
ENDANGERED SPECIES AND THE ENVIRONMENT.
As discussed above, for a state to be liable for an internationally wrongful act, the act or
omission must constitute a breach of an obligation of a state. A breach of obligation is
46
Spanish Zone of Morocco Claim
47
Glowka, Complementarities between the Convention on Migratory Species and the
Convention on Biological Diversity,https://www.cbd.int/doc/articles/2002-/a-00309.pdf
23
contemplated by customary international law as a breach of an engagement48 or any violation of
a state of any of its international obligations.49 Such conduct or omission must be contrary to the
agreement or a right. Rakkab respectfully submits that it did not commit any breach or violation
of its international obligation through the conducts of DORTA through the following grounds
that the harvest of Kayleff Yaks (Yaks) is conducted in a sustainable at a sustainable rate in
consonance with customary international law.
Rakkab and Aurok are both signatories of conventions relating to the protection wildlife and
environment, namely: (1) The Convention on International Trade in Endangered Species of Wild
Flora and Fauna of 1973(CITES); (2) The Convention on the Conservation of Migratory Species
of Wild Animals of 1979(CMS); and (3) The Convention on Biological Diversity of
1992(CBD).50 Rakkab mostly owes its thriving economy from its investments and its success in
the realm of research and development.51
A. There is sustainable use and harvesting of the Kayleff Yaks.
The aforementioned conventions all espouse the fundamental principle of environment and
natural resources coupled by the underlying principle of sustainable use of these resources. On
the first level, The Convention on Biological Diversity of 1992(CBD) and The Convention on
the Conservation of Migratory Species of Wild Animals of 1979(CMS), complement each other
in their implementation through trans-boundary coordinated and concerted action on a regional,
continental and global scale.52 As a signatory to both convention, Rakkab undertook the
international obligation to protect the environment and its wildlife. Rakkab has remained
compliant with its international obligations in pursuance with the principle of Pacta Sunt
Servanda under the Vienna Convention on the Law on Treaties.53
48
Factory at Chorzow case,
49
Reparation for Injuries Case
50
Par 48, Compromis
51
Par 9, Compromis
52
Glowka, Complementarities between the Convention on Migratory Species and the
Convention on Biological Diversity,https://www.cbd.int/doc/articles/2002-/a-00309.pdf
53
Art 26 ,Vienna Convention on the Law on Treaties1969
24
Article 6 of The Convention on Biological Diversity of 1992 (CBD) provides that: Each
Contracting Party shall, in accordance with its particular conditions and capabilities: (a)
Develop national strategies, plans or programmes for the conservation and sustainable use of
biological diversity or adapt for this purpose existing strategies, plans or programmes which
shall reflect, inter alia, the measures set out in this Convention relevant to the Contracting Party
concerned; and (b) Integrate, as far as possible and as appropriate, the conservation and
sustainable use of biological diversity into relevant sectoral or cross-sectoral plans, programmes
and policies.54 "Sustainable use" means the use of components of biological diversity in a way
and at a rate that does not lead to the long-term decline of biological diversity, thereby
maintaining its potential to meet the needs and aspirations of present and future generations.55
Such sustainable use has beenpracticed by Rakkab from the time the research for Lustuk Enzyme
was commenced, the inclusion of the yak to Appendix III of CITES, and finally, the inclusion of
the yak to Appendix I of CMS.
The Kayleff Yak was first listed among the protected species of Appendix III of the
Convention on International Trade in Endangered Species of Wild Flora and Fauna of 1973 on
29 September 2017.56 CITES does not prohibit exploitation and trade of natural resources but
only “over-exploitation”.57 Instead, CITES seeks to balance the need for conservation and
trade.58 In the context of DORTA and through the national laws of Rakkab, this model is
maintained.
The listing of species under Appendix III indicates that the Kayleff Yaks are not species
threatened by extinction as differentiated from those listed under Appendix I and II of the
convention.59 This Appendix contains species that are protected in at least one country, which
has asked other CITES Parties for assistance in controlling the trade. Changes to Appendix III
follow a distinct procedure from changes to Appendices I and II, as each Party’s is entitled to
54
Article 6, CBD
55
Morgera and Wingard, Principles for Developing Sustainable Wildlife Management Laws,
2008 http://www.fao.org/3/a-bb108e.pdf
56
Par 40, Compromis
57
Garrison, The Convention on International Trade in Endangered Species of Wild Fauna and
Flora (CITES) and the Debate over Sustainable Use 1994
58
id
59
https://www.cites.org/eng/disc/how.php
25
make unilateral amendments to it.60The convention, while does not necessarily provide an
operative definition of sustainable use, applies a graduated stringency of procedural requirement
for the prohibition or regulation of trade of the species in the respective appendices.61
The graduation of the procedural requirements represent that while States have the power to
impose a more stringent legislation in order to protect these species, 62 the criteria for sustainable
use is the least stringent among those listed in Appendix III of the convention. Given this,
Rakkab submits that it has duly complied with this requirement according to the tenor of the said
convention. sustainable use, according to the varying acceptance and application of the parties to
CITES. Following the 1994 General Assembly of the International Union of Conservation and
Nature (IUCN) in Buenos Aires, Argentina, the IUCN Draft Guidelines for the Ecological
Sustainability of Non-Consumptive and Consumptive Use of Wild Species (Draft Guidelines),
the use of wildlife is sustainable if: a) it does not reduce the future use potential of the target
population or impair its long term viability; b) it is compatible with maintenance of the long term
viability of supporting and dependent ecosystems; and c) it does not reduce the future use
potential or impair long term viability of other species.63
These requisites is best represented by Article IX(1) of CITES which provide that: Each
party shall designate for the purposes of the present Convention: (a) one or more Management
Authorities competent to grant permits or certificates on behalf of that Party; and (b) one or
more Scientific Authorities64.The Ministry of Agriculture of Rakkab as the designated
Management Authority under Article IX of the CITES. Since 29 September 2017, the Ministry
has issued certificates of origin for the Lustuk Enzyme in all batches of Gallvectra exported from
Rakkab. The Ministry keeps appropriate records with respect to all such certificates issued.65
Rakkab has remained compliant with all the requirements and conditions imposed by CITES and
have therefor not breached any obligation so far relating to the convention.
60
id
61
Garrison, The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and
the Debate over Sustainable Use 1994
62
Art __, CITES
63
Garrison, The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and
the Debate over Sustainable Use 1994
64
Art IX(1), CITES
65
Par 6, Compromis
26
Subsequently, The Kayleff Yak was listed under Appendex I of CMS on October 2017 66
where the convention provides that: Parties that are Range States of a migratory species listed in
Appendix I shall prohibit the taking of animals belonging to such species. Exceptions may be
made to this prohibition only if: a) the taking is for scientific purposes; b) the taking is for the
purpose of enhancing the propagation or survival of the affected species; c) the taking is to
accommodate the needs of traditional subsistence users of such species; or d) extraordinary
circumstances so require.67 Procedurally, CMS requires that: The Parties shall as soon as
possible inform the Secretariat of any exceptions made pursuant to paragraph 5 of this Article.68
Generally, the taking of species listed in appendix I is prohibited but following the conditions
and procedural guidelines enumerated above, the harvesting of Kayleff Yaks can be permitted.
Rakkab has been compliant with both requirements under the CMS through Regulation
AG/2017-0300. Rakkab is harvesting the Yaks for scientific purpose, enhancing propagation or
survival of the species, to accommodate traditional subsistence, and extraordinary circumstance.
Additionally, all licenses issued under section 3 of Regulation AG/2017-0300 are notified to the
CMS Secretariat in a manner consistent with Article III(7) of the CMS.69
The main purpose of harvesting the Yaks is for the medical benefits that can be derived from
the Lustuk Enzyme which provides protection against diseases like diabetes and obesity. 70 The
convention itself does not necessarily provide for the metes and bounds that define “scientific
purpose”.The ICJ, in the case of Whaling in the Antartic (Australia v. Japan), held that the scope
of determining whether an issuance of permit is for a scientific purpose is examining whether, in
the use of lethal methods, the programme’s design and implementation are reasonable in relation
to achieving its stated objectives.71 The court held here that:
66
Par 44, Compromis
67
Art III(5), CMS
68
Art III(7), CMS
69
Par 8, Clarifications
70
Par 13, Compromis
71
WHALING IN THE ANTARCTIC (AUSTRALIA v. JAPAN: NEW ZEALAND)
27
“In order to ascertain whether a programme’s use of lethal methods is for purposes of
scientific research, the Court will consider whether the elements of a programme’s
design and implementation are reasonable in relation to its stated scientific objectives
(see paragraph 67 above). As shown by the arguments of the Parties, such elements may
include: decisions regarding the use of lethal methods; the scale of the programme’s use
of lethal sampling; the methodology used to select sample sizes; a comparison of the
target sample sizes and the actual take ; the time frame associated with a programme; the
programme’s scientific output; and the degree to which a programme co-ordinates its
activities with related research projects”72
The study conducted by DORTA in determining the benefits of consuming Kayleff Yaks
and the methodology applied by the company is pursuant to the to the definition set forth by ICJ
in the case of Australia v. Japan. In fact, Rakkab attempted to breed the yaks in captivity but it
has been unsuccessful.73 The hunting of the yaks for their bladder is sustainable through the
regulation provided by Rakkab in pursuance to its scientific benefit.
Moreover, the commercial aspect of the activity does not necessarily devolve the conduct
and purpose of DORTA as not a scientific pursuit. The case of Australia v. Japan further
provides that the fact that a programme involves the sale of whale meat and the use of proceeds
to fund research is not sufficient, taken alone, to cause a special permit to fall outside Article
VIII. Other elements would have to be examined, such as the scale of a programme’s use of
lethal sampling, which might suggest that the whaling is for purposes other than scientific
research. In particular, a State party may not, in order to fund the research for which a special
permit has been granted, use lethal sampling on a greater scale than is otherwise reasonable in
relation to achieving the programme’s stated objectives.74
Rakkab is also home to around 200 Pivzao adherent population.75 In fact, apart from the
license granted to DORTA, between December 2017 and the present date, the Rakkabi Ministry
72
Id.
73
Par 8, Compromis
74
Australia v. Japan
75
Id.
28
of Agriculture has issued licenses to 20 individuals to hunt Yak. Seventeen of these licenses were
granted to individuals who provide Yak meat to traditional users and three to academic
institutions for biological study. All licenses are issued for three years and may be renewed. Each
license limits the number of Yak that the licensee is permitted to take.76
The conduct of assessment was in pursuance of the fundamental principles stated under
Article II of CMS: The Parties acknowledge the importance of migratory species being
conserved and of Range States agreeing to take action to this end whenever possible and
appropriate, paying special attention to migratory species the conservation status of which is
unfavourable, and taking individually or in co-operation appropriate and necessary steps to
conserve such species and their habitat.77 Aurok and Pivzao adherents were involved in the
determination of the impact of the harvesting of the yaks and were never excluded from the
process.
Taking the entirety of the acts of DORTA and the regulation imposed by Rakkab, it simply
evidences that in all manners where Kayleff Yaks were harvested, they were made in accordance
with the conditions and requirements as set forth under the CMS. In fact, beginning in October
2017, as part of the administrative rule-making process that resulted in the issuance of
Regulation AG/2017-0300, Rakkab conducted a comprehensive environmental impact
assessment, focused on the impact of continued hunting of the Yak. The assessment involved
consultation with DORTA scientists, YLSA representatives, Rakkabi Pivzao adherents,
government officials from Aurok, licensed Yak hunters, and members of the general public.78
The assessment concluded that Regulation AG/2017-0300 would be adequate to protect the
sustainability of the Yak population.79 Following this, Rakkab did not breach any of its
international obligations relating to the protection of wildlife and environment.
76
77
Art II(1), CMS
78
79
29
III. RAKKAB DID NOT VIOLATE ANY CULTURAL AND RELIGIOUS RIGHTS OF
THE PEOPLE OF AUROK BECAUSE THE HARVESTING OF THE YAK DOES NOT
PREVENT THE TRADITIONAL PRACTICE OF THE PIVZAO PEOPLE, THUS IN
VIEW OF THE PRESSING NEED AND HEALTH BENEFITS OF GALLVECTRA,
THERE IS NO REASON TO PROHIBIT THE HUNTING OF THE YAK AT A
SUSTAINABLE RATE.
Indigenous People and their rights must be heavily protected, such that the obligation to
protect is a substantive obligation and a primary obligation to the conduct of third parties to the
extent that States are also obliged to ensure that private actors will not violate indigenous land
rights. The State, however, cannot be responsible for every indigenous land rights violation by a
private party, as held in the case of the Saramaka People v. Suriname80. States may only be held
accountable for third-party infringements on indigenous land rights only if the third party was
acting with the State’s authorization, acquiescence, or tolerance.
Assuming arguendo, this to be true in this case, there was still no violation of religious and
cultural rights of the Pivzao people by either Rakkab or DORTA.
A. Rakkab did not violate any indigenous people’s rights under the Indigenous and
Tribal People’s Convention of 1989 (No. 169).
The International Labor Organization’s Convention (No. 169) concerning Indigenous and
Tribal Peoples in Independent Countries is the only international treaty solely concerned with
indigenous peoples. It is significant to the extent it creates treaty obligations among ratifying
states in line with current trends in thinking prompted by indigenous peoples’ demands. The
Convention contextualizes indigenous land and resource—or territorial--rights as having a
collective character, and they include a combination of possessory, use, and management rights.
80
Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Cost, Inter-
Am. Ct. H.R. (ser. C) No. 174, ¶ 63 (Nov. 28, 2007) (suggesting that, within the Inter-American
human rights system, states may be held accountable for third-party infringements on indigenous
land rights only if the third party was acting with the state’s authorization, acquiescence, or
tolerance).
30
In its article 14(1), Convention No. 169 affirms:
The rights of ownership and possession of [indigenous peoples] over the lands, which
they traditionally occupy, shall be recognised. In addition, measures shall be taken in
appropriate cases to safeguard the right of the peoples concerned to use lands not
exclusively occupied by them, but to which they have traditionally had access for their
subsistence and traditional activities.81
Modern notions of cultural integrity, nondiscrimination, and self-determination join property

precepts in the affirmation of sui generis indigenous land and resource rights, as evident in ILO
Convention No. 169. The land rights provisions of Convention No. 169 are framed by article
13(1), which states:
In applying the provisions of this Part of the Convention governments shall respect the
special importance for the cultures and spiritual values of the peoples concerned of
their relationship with the lands or territories, or both as applicable, which they occupy
or otherwise use, and in particular the collective aspects of this relationship.82
Article 15, furthermore, requires states to safeguard indigenous peoples' rights to the natural
resources throughout their territories, including their right "to participate in the use, management
and conservation" of the resources. The concept of indigenous territories embraced by the
convention is deemed to cover “the total environment of the areas which the peoples concerned
occupy or otherwise use.”83
Rakkab submits that there has been no violation of such provisions by itself or by
DORTA. The harvesting of the yaks does not inhibit the use of the gallbladder in accordance of
Aurokan Pivzao traditions.84 It must be emphasized that Gallvectra is part of the WHO Model
81
Art. 14, ILO Convention No. 169, 1989
82
83
84
Par 18, Compromis
31
list of Essential Medicines85, defined by the World Health Organization (WHO), as the
medicines that "satisfy the priority health care needs of the population". These are the
medications to which people should have access at all times in sufficient amounts.86 Access to
essential medicines is part of the Sustainable Development Goals under Goal 3.8. Goal 3.8
specifically mentions the importance of “access to safe, effective, quality and affordable essential
medicines and vaccines for all” as a central component of Universal Health Coverage (UHC).87
The rights of Indigenous Peoples must be balanced with the Universal Human Right to Health,
which in this case has been done through the efforts of both DORTA and Rakkab. Rakkab has
acted in good faith in imposing a cap of 30,00088 annually for three years, which is still
significantly lesser than the yaks killed annually by the Aurokan people. Rakkab has done its part
to protect the common interest of both the Aurokan and Rakkabi people.
ILO Convention No. 169 further provides under Article 35 that:
Article 35
The application of the provisions of this Convention shall not adversely affect rights and
benefits of the peoples concerned pursuant to other Conventions and Recommendations,
international instruments, treaties, or national laws, awards, custom or agreements.89
Thus the Convention may not be used as a defense in order to infringe on the Right to Health
as embodied in the Sustainable Development Goals, the World Health Organization Constitution,
and the United Nations Charter, among other international instruments. There is no possibility of
completely ceasing the harvesting of yak gallbladders, to the detriment of the populations of over
85 countries90 relying on it, as the Lustuk enzyme is an essential and unique component of
Gallvectra.
85
Par 37, Compromis
86
World Health Organization Model List of Essential Medicines
87
Sustainable Development Goals, Goal 3: Good Health and Well-Being
88
Par 45, Compromis
89
90
Par. 20, Compromis
32
B. Rakkab did not violate any indigenous people’s rights under the International
Covenant on Economic, Social and Cultural Rights.
The International Covenant on Economic, Social and Cultural Rights provides under Article
15, paragraph (a) that:
1. The States Parties to the present Covenant recognize the right of everyone:
(a) To take part in cultural life;91
The right to take part in cultural life can be characterized as a freedom. There are three
interrelated main components of the right to participate or take part in cultural life as provided
under the General comment No. 21 (2009) on Right of everyone to take part in cultural life92 (art.
15, para. 1 (a), of the International Covenant on Economic, Social and Cultural Rights, by the
Committee on Economic, Social and Cultural Rights, in their Forty-third session.
These include: (a) participation in, (b) access to, and (c) contribution to cultural life.
Participation covers in particular the right of everyone to act freely, to choose his or her own
identity, to identify or not with one or several communities or to change that choice, to take part
in the political life of society, to engage in one’s own cultural practices and to express oneself in
the language of one’s choice. Access covers in particular the right of everyone know and
understand his or her own culture and that of others through education and information, and to
receive quality education and training with due regard for cultural identity. Finally, Contribution
to cultural life refers to the right of everyone to be involved in creating the spiritual, material,
intellectual and emotional expressions of the community. This is supported by the right to take
part in the development of the community to which a person belongs, and in the definition,
91
Art. 15, ICESCR
92
UN Committee on Economic, Social and Cultural Rights (CESCR), General comment no. 21,
Right of everyone to take part in cultural life (art. 15, para. 1a of the Covenant on Economic,
Social and Cultural Rights), 21 December 2009, E/C.12/GC/21, available at:
https://www.refworld.org/docid/4ed35bae2.html [accessed 9 January 2019]
33
elaboration and implementation of policies and decisions that have an impact on the exercise of a
person’s cultural rights.
The Covenant imposes on States parties the immediate obligation to guarantee that the right
set out in article 15, paragraph 1 (a) is exercised without discrimination, to recognize cultural
practices and to refrain from interfering in their enjoyment and development.
As in the case of the other rights set out in the Covenant, regressive measures taken in
relation to the right of everyone to take part in cultural life are not permitted. Consequently, if
any such measure is taken deliberately, the State party has to prove that it was taken after careful
consideration of all alternatives and that the measure in question is justified, bearing in mind the
complete set of rights recognized in the Covenant.
In the same General Comment No. 21 (2009), it was stated that the right of everyone to take
part in cultural life, like the other rights enshrined in the Covenant, imposes three types or levels
of obligations on States parties: (a) the obligation to respect; (b) the obligation to protect; and (c)
the obligation to fulfill. 93
The obligation to respect requires States parties to refrain from interfering, directly or
indirectly, with the enjoyment of the right to take part in cultural life. The obligation to protect
requires States parties to take steps to prevent third parties from interfering in the right to take
part in cultural life. Lastly, the obligation to fulfill requires States parties to take appropriate
legislative, administrative, judicial, budgetary, promotional and other measures aimed at the full
realization of the right enshrined in article 15, paragraph 1 (a), of the Covenant.
Assuming arguendo that the actions of DORTA may be attributed to Rakkab, Rakka submits
that DORTA’s actions are not in any way in violation of their international obligations under the
Covenant.
93
Ibid.
34
Rakkab submits that DORTA and Rakkab has fully complied with Article 15 (a) of the
Covenant, as exemplified by its recognition of the Pivzao people and their religious and cultural
practices.
Neither DORTA nor Rakkab has in any way prevented the Pivzao people of both Aurok and
Rakkab from performing their religious and cultural traditions. Rakkab has in fact complied with
all the levels of its obligations to Indigenous People.
Under the obligation to respect, Rakkab has refrained from interfering in the Pivzao people’s
right to take part in their cultural life. The harvesting by DORTA of the Yak gallbladders also
does not prevent the Aurok and Rakkab Pivzao people from continuing with their religious
practice. In fact, the licensed hunters of DORTA, even provide Yak meat to Traditional users in
order that they may cook and consume the Tirhinga Nos Lustuk as stated in the Clarifications
paragraph (9).94
Similarly, under the obligation to protect, assuming without conceding that DORTA had
interfered with the right to take part in cultural life of the Pivzao people, Rakkab in connection
with its obligation to fulfill, promulgated Regulation AG/2017-0300, in order to set strict
guidelines for the harvesting of the Kayleff Yak and suspended the licenses issued prior to the
regulation in fulfillment of their obligations under the Convention on Migratory Species and the
recent CMS decision in October 2017. DORTA also faithfully complied with this regulation. 95
With all of the above, Respondent submits that contrary to violating its international
obligations, it in fact has complied with the same. The same is submitted for DORTA.
94
95
Par 44, Compromis
35
C. Rakkab did not violate any indigenous people’s rights under the International
Covenant on Civil and Political Rights.
The International Covenant on Civil and Political Rights contain a similar provision under
Article 27 which provides:
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language.96
In the case of Lansman et al. v. Finland97, Ilmari Länsman and other reindeer breeders of
Sami ethnic origin, all members of the Muotkatunturi Herdsmen's Committee (Herdsmen),
complained to the U.N. Human Rights Committee that a contract by Finland’s Central Forestry
Board to allow stone quarrying on the side of a mountain they considered sacred, and
transportation of the stone directly through a “complex system of reindeer fences” and along a
road through territory traditionally claimed by the Herdsmen, violated their rights under Article
27 of the ICCPR. Finland contended that reindeer husbandry is protected under national law and
that local officials paid “special attention” in granting their permit “to avoid disturbing reindeer
husbandry in the area. In addition Finland asserted that the impact of the quarrying activities
would not threaten “the survival and continued development of the cultural, religious and social
identity” of the Sami, which is the central concern of Article 27. The Herdsmen, it argued, could
“continue to practise reindeer husbandry and are not forced to abandon their lifestyle.”
Similarly in this case, the Rakkab Ministry of Agriculture carefully regulated the granting of
licenses for the harvesting of Yak gallbladders. The Pivzao people were also not forced to
abandon their traditional practice of killing the Yaks. The Pivzao people in Rakkab are given due
96
Art. 27, ICCPR
97
Lansman et al. v. Finland, Communication No. 511/1992, U.N. Doc. CCPR/C/52/D/511/1992
(1994).
36
recognition by the State of Rakkab and are not forced to assimilate with the rest of the
population.
After weighing the competing claims, the Committee found that there was no violation of
Article 27 primarily because of two reasons, those being, that the impact of the quarrying was
minimal and that the Herdsmen were sufficiently consulted.
Here, as provided by the Clarifications Paragraph (7), before issuing Regulation AG/2017-
0300 there was a consultative process focused on the continued impact of hunting the Yak
DORTA scientists, YLSA representatives, Rakkabi Pivzao adherents, government officials from
Aurok, licensed Yak hunters, and members of the general public. It was concluded that the
regulation would be adequate to protect the sustainability of the Yak population, thus such
impact of the harvesting can be said to be only minimal.98
D. The Yaks, being a migratory species, are res nullius, and thus Rakkab has a right to
them when they are within the territory of Rakkab.
States have sovereign rights over all animals which happen to be present on their territory at
any moment in time, as a consequence of the universal recognition of the sovereignty of States
over their natural resources.
Animals that migrate from one jurisdiction to another are subject, in succession, to the
sovereign rights and jurisdiction of all the States along their migration route.
In the absence of a rule of international law conferring upon migratory species a special
legal status in recognition of their international nature, restrictions to the exercise of sovereign
rights may only be voluntary through treaties.
98
37
Wild animals continue to be res nullius as they were in Roman law. National legislation
tends to provide for state or public ownership of such animals unless they have been lawfully
obtained by private persons by hunting, trapping, fishing, or collecting.
The Bering Sea fur seals. Arbitration Case99 is illustrative. The seals breed almost
exclusively on the Pribiloff Islands, which belong to the United States. Sealing on the high sea
by British boats had developed to such an extent that the seal population had become severely
depleted. The United States then declared that the animals were their property and that pelagic
sealing should cease. British boats were seized and their captains fined. The dispute was
eventually submitted to arbitration. The British held on the basis of customary law that the seals
were ferae naturae (of wild nature) universally regarded as res nullius until they were caught.
The court of arbitration ruled in 1893 that "[tihe United States had not any right of protection or
property in the fur seals frequenting the islands of the United States in the Bering Sea when such
seals are found inside the ordinary three mile limit”.
Here, the DORTA-licensed hunters harvest the Yak gallbladders within Rakkabi territory
when they cross state borders, thus making them under the sovereign jurisdiction of Rakkab.
Being as the harvesting of the Yaks is lawful under Rakkabi domestic law provided that the
harvester has a legal license issued by the State, the harvesting thus does not violate nor infringe
on the sovereignty of Aurok. Neither does it violate Rakkab’s obligations under the Convention
on the Conversation of Migratory Species of Wild Animals (CMS), as Article II, paragraph (5)
provides that:
Parties that are Range States of a migratory species listed in Appendix I shall prohibit
the taking of animals belonging to such species. Exceptions may be made to this prohibition
only if:
99
AWARD OF THE ARBITRAL TRIBUNAL ESTABLISHED UNDER THE TREATY
SIGNED IN WASHINGTON, ON THE 29TH OF FEBRUARY 1892, BETWEEN UNITED
STATES AND HER MAJESTY THE QUEEN OF UNITED KINGDOM OF GREAT-BRITAIN
AND IRELAND (RELATING TO THE RIGHTS OF JURISDICTION OF UNITED STATES
IN THE BERING’S SEA AND THE PRESERVATION OF FUR SEALS), DECISION OF 15
AUGUST 1893
38
a) the taking is for scientific purposes;
b) the taking is for the purpose of enhancing the propagation or survival of the affected
species;
c) the taking is to accommodate the needs of traditional subsistence users of such
species; or
d) extraordinary circumstances so require;100
The exception applies in this case, as the harvesting of the gallbladders is necessary for
scientific purposes, the production of Gallvectra, which is a revolutionary medicine that has
made and continues to make the lives of countless people in Rakkab and worldwide.101
Although the Kayleff Yak is essential to the traditional practice of the Pivzao, it is
emphasized that the practice continues to be preserved complimentarily with the sustainable
harvesting of the Kayleff Yak for essential scientific and health purposes.
1. As no property rights are involved, there is only a legal obligation to consult, but
not necessarily to agree.
In the case of Haida Nation v. British Columbia102, the Supreme Court of Canada the
State, or in this case The Crown, and the State alone, has a legal duty to consult with
aboriginals when making decisions that could infringe upon their rights or lands, including
decisions that could affect rights or lands that are currently being sought through legislation.
It was clear that the legal duty to consult and possibly accommodate only applies to the
State, and not third parties. There is no duty to come to an agreement - there is only a duty to
consult. If consent is not achieved the state must show that indigenous concerns were heard
and accommodated.
100
Art. 2(5), CMS
101
Par 20, Compromis
102
Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73
39
Applying the jurisprudence in this case, DORTA has no legal obligation to consult with
the Aurok Pivzao people. Such legal obligation was complied with when Rakkab conducted
a multi-sectoral consultative process as shown in the Clarifications, paragraph (7). 103
B. Prior free and informed full consent was obtained.
It has become a generally accepted principle in international law that indigenous peoples
should be consulted as to any decision affecting them. This norm is reflected in articles 6 and 7
of I.L.O. Convention No. 169, the Indigenous and Tribal People’s Convention of 1989. This
widespread acceptance of the norm of consultation demonstrates that it has become part of
customary international law.
In applying the Convention, the ILO has held that consultations must be held when a variety
of indigenous interests are involved, including legislative measures regulating the consultation
process itself.
ILO committees emphasized article 6(2), which requires that consultations must be in good
faith, through culturally appropriate procedures, and with the objective of reaching an agreement
with the affected indigenous peoples.104
Such duty to consult was complied in this case by Rakkab.
IV. RAKKAB HAS NO OBLIGATION TO PAY AUROK, A PORTION (TO BE

DETERMINED IN SUBSEQUENT PROCEEDINGS) OF THE PROFITS REALIZED
FROM SALES OF THE DRUG GALLVECTRA. NO APPROPRIATION OF
TRADITIONAL KNOWLEDGE WAS COMMITTED BY RAKKAB.
Aurok claims that Rakkab has the obligation to pay the for the profits realized from the sale
of the drug Gallvectra on the ground that the Traditional Knowledge of Pivzao has been
103
104
Art. 6(2), ILO Convention No. 169, 1989
40
appropriated by DORTA in the process of creating the said drug. Both Rakkab and Aurok are
signatories to 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable
Sharing of Benefits Arising from Their Utilization (Nagoya Protocol).
Article 5(1) of the Nagoya Protocol provides: xxx benefits arising from the utilization of
genetic resources as well as subsequent applications and commercialization shall be shared in a
fair and equitable way with the Party providing such resources that is the country of origin of
such resources or a Party that has acquired the genetic resources in accordance with the
Convention. Such sharing shall be upon mutually agreed terms.105 Additionally, Article 5(5) of
the convention also provides that: Each Party shall take legislative, administrative or policy
measures, as appropriate, in order that the benefits arising from the utilization of traditional
knowledge associated with genetic resources are shared in a fair and equitable way with
indigenous and local communities holding such knowledge. Such sharing shall be upon mutually
agreed terms.106 This is in pursuance of the obligations set forth under Article 8(j) of CBD:
Subject to its national legislation, respect, preserve and maintain knowledge, innovations and
practices of indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity and promote their wider application
with the approval and involvement of the holders of such knowledge, innovations and practices
and encourage the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices.107 Rakkab did not breach any of these obligations.
It must be noted that the benefit sharing as mandated to the Parties of the convention only
applies to traditional knowledge associated to genetic resources.108 Therefore, the source of
benefit sharing must (1) qualify as traditional knowledge; and (2) it must be associated to a
genetic resource that originates from the other contracting party entitled to such benefit sharing.
Rakkab respectfully submits that the process of extracting the Lustuk Enzyme from the Kayleff
Yaks, for the purpose of producing the drug Gallvectra, does not qualify as traditional knowledge
associated to a genetic resource which isendemic to the Pivzao and Aurok.
105
Art 5(1), Nagoya Protocol
106
107
Art 8(j), CBD
108
Art 2, Nagoya Protocol
41
A. Isolating Lustk Enzyme and its transformation into Gallvectra is not Traditional
Knowledge.
There is no internationally accepted definition of Traditional Knowledge at the international

level. However, Traditional Knowledge, as defined by the World Intellectual Property
Organization(WIPO), are knowledge, know-how, skills and practices that are developed,
sustained and passed on from generation to generation within a community, often forming part of
its cultural or spiritual identity.109
Genetic resources, on the other hand, is defined by WIPO as Genetic resources (GRs) as
genetic material of actual or potential value. Genetic material is any material of plant, animal,
microbial or other origin containing functional units of heredity. Examples include material of
plant, animal, or microbial origin, such as medicinal plants, agricultural crops and animal
breeds.110
Rakkab submits that there are clear-cut differences between the process of extracting Lustuk
Enzyme and using it as the major component of Gallvectra and the Traditional Yak Hunting and
consumption of the traditional dish called Tirhinga Nos Lustuk by the Pivzao. The process of
extracting the Lustuk Enzyme and its transformation into Gallvectra is not part of or the same
with the traditional practices of Pivzao.
The Yak hunting is considered a rite of passage into adulthood for young Aurokans and the
consumption of Tirhinga Nos Lustuk symbolized gratitude to Kayleff for nature’s bounty, and
conferred health benefits and longevity on all who partook in it. A monthly communal meal
including the soup was a solemn, ritualized event that also included a liturgical component of
prayers and hymns.111 The more specific detail of the inclusion of the yak in Pivzao tradition is
109
https://www.wipo.int/tk/en/tk/
110
https://www.wipo.int/tk/en/genetic/
111
Par. 3, Compromis
42
the people’s consumption of the whole Yak itself. The Tirhinga Nos Lustuk is a soup dish made
from the nasty bits or innards of the yak.112
On the other hand, the isolation of Lustuk Enzyme and its usage for medication involves a
completely different process. In Gallvectra, the enzyme is separated from the gall bladder and is
not consumed as a dish but is used as an ingredient in a medication. Galvectra undergoes a
completely different process distinct from that of Tirhinga Nos Lustuk where the ingredients,
while includes the Yaks bladder, includes other parts of the yaks innards as well as other edible
parts of the animal. The conception of Gallvectra is based on an independent and patented study
and the discovery of the enzyme was made not from the practice of traditional knowledge but
from its subsequent effects, as evidenced by the study conducted by Dr. Isaac Bello.113
B. Kayleff Yaks are migratory species and are therefore not of Aurok origin.
On the second level, there must be a link between the Traditional Knowledge and the
Genetic Resource. Traditional knowledge that relates to genetic resources is traditional
knowledge possessed by an indigenous people or a local community and that is relevant for the
utilisation of genetic resources. The knowledge-bearer is the right-holder where traditional
knowledge relating to genetic resources is concerned. It is the knowledge-bearer who can
approve the access to traditional knowledge.114 What the Nagoya Protocol covers for benefit
sharing to apply, therefor, is the use of Traditional Knowledge.
It is essential for the genetic resource to be originating from the party who claims to be
entitled to a share of the benefits derived from the genetic resource. 115 This condition is not
fulfilled in this case for the Kayleff Yaks are classified as migratory species under the CMS.
Article I(1.a) of CMS defines m igratory species as: "Migratory species" means the entire
population or any geographically separate part of the population of any species or lower taxon
of wild animals, a significant proportion of whose members cyclically and predictably cross one
112
Id.
113
Compromis
114
http://www.swedishepa.se/Guidance/Guidance/Species-Protection/Genetic-
resourses/Utilizing-traditional-knowledge/
115
43
or more national jurisdictional boundaries.116 And as already submitted by Rakkab in the
preceding issue, Migratory Species are considered as Rus Nulluis.
Rakkab submits that for Aurok and Pivzao to be entitled to the share of benefits of the sale
of Gallvectra, the genetic resource must be of Aurokan origin as required by the Nagoya
Protocol. This is most definitely not the case for the Kayleff Yaks are not endemic resource of
Aurok but is in fact mutually shared with Rakkab as a range state. Having established that
Gallvectra is not derived from traditional knowledge and that Lustuk Enzyme and Kayleff Yak is
not a genetic resource of Aurok, benefit sharing under the convention can not be invoked by
Aurok therefor.
C. DORTA lawfully acquired intellectual property rights over Gallvectra in

compliance with the Paris Convention for the Protection of Industrial Property of 1883.
The Paris Convention provides an international system of granting and recognizing patents.
117
Both Aurok and Rakkab are signatories to the Paris Convention . Following the principle of
Pacta Sunt Servanda under the Vienna Convention on the Law on Treaties 118, Aurok must
respect the grant of patent to DORTA considering that it has complied with the provisions of the
Convention.
The Convention provides for the right of priority in the case of patents. This right means
that, on the basis of a regular first application filed in one of the Contracting States, the applicant
may, within twelve months apply for protection in any of the other Contracting States. These
subsequent applications will be regarded as if they had been filed on the same day as the first
application. In other words, they will have priority over the same invention. Moreover, these
subsequent applications, being based on the first application, will not be affected by any event
that takes place in the interval, such as the publication of an invention. 119
116
Art I(1.a), CMS
117
Par 48, Compromis
118
Art 26 ,Vienna Convention on the Law on Treaties, 1969
119
Article 4, The Paris Convention for the Protection of Industrial Property of 1883
44
As provided by the Compromis, On 11 November 2004, DORTA filed a patent application
with the Rakkabi Intellectual Property Ministry for Gallvectra120. The patent was then granted on
21 May 2006121 in compliance with domestic laws. All subsequent applications within twelve
months of the aforementioned date thus retroacts to the first application on 11 November 2004.
The grant of the patent within Rakkab also has the effect of being recognized under the Paris
Convention.
In addition, the Paris Convention also provides that the grant of a patent may not be refused,
and a patent may not be invalidated, on the ground that the sale of the patented product, or of a
product obtained by means of the patented process, is subject to restrictions or limitations
resulting from the domestic law122. Thus, even if there was no patent granted in Aurok owing to
the fact DORTA has no subsidiary there, it does not invalidate the patents already granted in
Rakkab and other countries.
D. DORTA has also lawfully acquired intellectual property rights over Gallvectra
following International Customary Law.
The elements of customary international law is the widespread repetition of the same act
within the international community and that the acts must occur out of a sense of obligation
(opinion juris)123.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) draws

influence from the Paris Convention. Furthermore, the requisites of patentability as provided
under TRIPS has developed as to be considered customary international law as evidenced by
having been ratified by 152 out of 162 countries respectively124.
120
Par 15, Compromis
121
Par 2, Corrections
122
Article 4(A), The Paris Convention for the Protection of Industrial Property of 1883
123
Article 38, Par (1), Statute of the International Court of Justice
124
General Agreement on Tariffs And Trade - Multilateral Trade Negotiations: Agreement On
Trade-Related Aspects Of Intellectual Property Rights, January 1994,33 I.L.M. 81 [hereinafter
TRIPS].
45
Meanwhile, the grant of the patent in Rakkab as well as in multiple other countries
necessarily implies that the patents have been granted by a sense of obligation such that they are
no longer necessarily strictly limited as being governed only by the Paris Convention.
Thus being international customary law, the conditions of patentability as provided under
TRIPS, applies to both Rakkab and Aurok, despite not being parties to the Agreement.
The TRIPS Agreement provides under Article 27 that patents shall be available for any
inventions, whether products or processes, provided that they are new, involve an innovative step
and are capable of industrial application.125
The only material which can be excluded from patent protection under TRIPS are plants and
animals and essentially biological processes for the production of plants and animals. However,
what is being patented here is not the Kayleff Yak, nor even its gall bladder, but the invention of
Gallvectra.
The requirement for patentability under TRIPS is that it shall be (a) new, (b) involve an
inventive step, and (c) capable of industrial application. Gallvectra fulfills all of these
requirements.
Gallvectra and the process to derive medication from the Lustuk Enzyme is new or novel,
not having been created elsewhere prior to the application of the patent by DORTA.
The novelty is not defeated by the prior references of the Kayleff Yak by Professor Wim
126
Kurriz or in the account of Chinese explorer Zheng He127. Both referenced the Kayleff Yak,
or specifically Traditional Yak hunting, highlighting the cultural significance, but not the health-
related benefits. Furthermore, Rakkab submits that it is not the traditional Yak hunting process
for which DORTA applied a patent for, but the end product of a different process, which is the
Gallvectra. As the references pertain to a different subject matter only, they may not be
125
Art. 27, TRIPS Agreement
126
Par 3, Compromis
127
Par 5, Compromis
46
considered the prior art contemplated under TRIPS and other international patent systems, which
would defeat the element of novelty of Gallvectra.
Neither may the article by Cressida Cauty128 be considered prior art as the article was
published after the first patent application had been filed on 11 November 2004. The Paris
Convention provides that subsequent applications, being based on the first application, will not
be affected by any event that takes place in the interval, such as the publication of an
invention.129
Gallvectra also involves an inventive step, as the process involves deriving the medication
from the Lustuk enzyme, which itself was isolated to produce an experimental medication.
Finally, Gallvectra is capable of industrial application.
Industrial applicability means that an invention can be made in industry. ‘Industry’ is

broadly understood in accordance with article 1(3) of the Paris Convention for the Protection of
Industrial Property, including what is applicable “to industry and commerce proper”. 130 Another
factor to consider is whether the invention has a ‘profitable use’ or ‘beneficial use’. Both
requirements apply. Clinical trials were conducted to test the efficacy of what would be
Gallvectra131. It was determined that the same is highly effective in treatment of diabetes and
related disorders. It was also replicated in industry as shown by how it was marketed in 2011,
and as of 2018 has been approved for use and sale in 85 countries. Profitable use was also shown
as when Gallvetra sales topped two billion in 2014132 and more than 3.2 billion in June 2017133.
Thus, with all of the foregoing, it is respectfully submitted by Rakkab that DORTA was
able to acquire lawful intellectual property rights over Gallvectra, both procedurally and
substantively.
128
Par 16, Compromis
129
Article 4(B), The Paris Convention for the Protection of Industrial Property of 1883
130
Article 3(1), The Paris Convention for the Protection of Industrial Property of 1883
131
Par 14, Compromis
132
Par 21, Compromis
133
Par 38, Compromis
47
PRAYER FOR RELIEF
For the foregoing reasons, Rakkab requests the Court to declare that:
Rakkab is not responsible for the internationally wrongful acts described in sub-
paragraphs (b)-(d), infra, and DORTA’s actions are attributable to Rakkab;
The harvesting of the Yak in Rakkab does not violate Rakkab’s international obligations
relating to the protection of endangered species and the environment, including those under
relevant conventions, and Rakkab is not obligated to end Yak harvesting on its territory;
The harvesting of the Yak in Rakkab does not violates the cultural and religious rights of
the people of Aurok, and Rakkab does not need to prohibit such hunting forthwith; and
Rakkab owes no compensation to Aurok, a portion of the profits realized from sales of the
drug Gallvectra, because there was no appropriation and exploitation of traditional knowledge
belonging to the Aurokan people.
Respectfully submitted,
Agents of Rakkab
48

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COUR INTERNATIONALE INTERNATIONAL COURT

THE CASE CONCERNING THE KAYLEFF YAK

(THE STATE OF AUROK / THE REPUBLIC OF RAKKAB)

L'AFFAIRE CONCERNANT LES YAK KAËLEFF

(L’ ÉTAT D’AUROK / LA RÉPUBLIQUE DE RAKKAB)

MEMORIAL FOR THE RESPONDENT

MÉMORIAL POUR LE DÉFENDERESSE

STATEMENT OF JURISDICTION xviii

III. RAKKAB DID NOT VIOLATE ANY CULTURAL AND RELIGIOUS 30

IV. RAKKAB HAS NO OBLIGATION TO PAY AUROK, A PORTION 40

D. DORTA has also lawfully acquired intellectual property rights over

PRAYER FOR RELIEF 49

Convention on Biological Diversity, Dec. 29, 1993: 8, 25

Convention on the Conservation of Migratory Species of Wild Animals,

Convention on International Trade in Endangered Species of Wild Fauna and

General Agreement on Tariffs And Trade - Multilateral Trade Negotiations:

Indigenous and Tribal Peoples Convention, Jun. 27, 1989:

International Covenant on Economic, Social and Cultural Rights, Jan. 3,

International Covenant on Civil and Political Rights, Mar. 23, 1976:

Responsibility of States for Internationally Wrongful Acts, 2001:

Statute of the International Court of Justice:

Vienna Convention on the Law of Treaties, May 23, 1969:

Decisions of the International Court of Justice and the Permanent Court

Case Concerning Military and Paramilitary Activities In and Against

Factory at Chorzów, Germany v Poland, Order, Indemnity, (1928) PCIJ

Reparation for injuries suffered in the service of the Nations, Advisory

Whaling in the Antarctic, Australia and New Zealand (intervening) v Japan,

Decisions of other Courts and Tribunals

AWARD OF THE ARBITRAL TRIBUNAL ESTABLISHED UNDER THE

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511,

Lansman et al. v. Finland, Communication No. 511/1992, U.N. Doc.

Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, International

Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations,

United States v. Canada, ( 1938 and 1941 ) 3 R.I.A.A. 1905.:

United States v. Mexico, (1931) 4 R.I.A.A. 669.:

Garrison, The Convention on International Trade in Endangered Species of

Genetic Resources. WIPO. https://www.wipo.int/tk/en/genetic/:

Using Traditional Knowledge Related to Genetic Resources. Swedish

Traditional Knowledge. WIPO. https://www.wipo.int/tk/en/tk/:

Sustainable Development Goals, Goal 3: Good Health and Well-Being:

UN Committee on Economic, Social and Cultural Rights (CESCR), General

Morgera and Wingard, Principles for Developing Sustainable Wildlife

World Health Organization Model List of Essential Medicines:

THE REPUBLIC OF RAKKAB

In February 1996, Rakkab’s Parliament adopted legislation to privatize the Department of

THE DEPARTMENT OF RESEARCH, TECHNOLOGY & APPLICATION (“DORTA”)

Rakkab is not responsible for internationally wrongful acts because DORTA’s

Gallvectra also fulfills the requisites of patentibility. It is an invention which is novel,

I. RAKKAB IS NOT RESPONSIBLE FOR INTERNATIONALLY WRONGFUL ACTS

DORTA M/S(DORTA) is a private entity operating as a manufacturer of pharmaceuticals

B. DORTA’s acts, as a private entity, are not attributable to Rakkab.

As a rule, Corporations are considered as subjects of international law pursuant to these

The precautionary principle requires approaching questions of sustainability of

A. There is sustainable use and harvesting of the Kayleff Yaks.

Modern notions of cultural integrity, nondiscrimination, and self-determination join property

ILO Convention No. 169 further provides under Article 35 that:

(a) To take part in cultural life;91

In those States in which ethnic, religious or linguistic minorities exist, persons

B. Prior free and informed full consent was obtained.

Such duty to consult was complied in this case by Rakkab.

IV. RAKKAB HAS NO OBLIGATION TO PAY AUROK, A PORTION (TO BE

There is no internationally accepted definition of Traditional Knowledge at the international