Team No.

xx

THE 2019 PHILIP C. JESSUP INTERNATIONAL LAW

MOOT COURT COMPETITION

IN THE INTERNATIONAL COURT OF JUSTICE

March 2019

The Case Concerning Differences Between the States

Concerning the Kayleff Yak

THE STATE OF AUROK

APPLICANT

v.

THE STATE OF RAKKAB

RESPONDENT

MEMORIAL FOR THE APPLICANT

TABLE OF CONTENTS

1
INDEX OF AUTHORITIES.....................................................................................................
STATEMENT OF THE FACTS ..............................................................................................
SUMMARY OF PLEADINGS..................................................................................................
PLEADINGS...............................................................................................................................
I THE HARVESTING OF YAK IS AN INTERNATIONALLY WRONGFUL
ACT ATTRIBUTABLE TO RAKKAB, AND THUS, RAKKAB MUST
COMPENSATE AUROK.
A Harvesting of Yak is an internationally wrongful-act.
1 There exists a regional customary law between Aurok and Rakkab, that is, Aurok
has a historic right to the Kayleff Yaks.
a Aurok is an injured state

B Rakkab is responsible for its failure to prevent DORTA from harvesting the Yak.
1 Rakkab sanctioned and controlled DORTA’s acts.
2 DORTA is exercising elements of governmental authority
3 Assuming arguendo that DORTA is not a state organ, Rakkab, nevertheless,
adopted and acknowledged the actions of DORTA as its own.

II RAKKAB BREACHED ITS LEGAL OBLIGATIONS UNDER

INTERNATIONAL LAW RELATING TO THE PROTECTION OF
ENDANGERED SPECIES AND THE ENVIRONMENT WHEN IT
INDISCRIMINATELY HARVEST THE YAK.
A Rakkab failed to comply with its obligations under Convention on the Biological
Diversity (CBD)
1 Rakkab’s action is inconsistent with the ‘Precautionary Principle’.
2 Rakkab failed to conduct Environmental Impact Assessment (EIA).
3 Rakkab failed to comply with its ‘sustainable use’ obligations under CBD.

B Rakkab violated its obligations under the Convention on the Conservation of

Migratory Species of Wild Animals of 1979 (CMS)
1 The Yak is listed in Appendix I of the CMS.
2 DORTA’s taking of Yak is inconsistent with the ‘taking’ as contemplated by CMS

C Rakkab violated its obligations under the Convention on International Trade in

Endangered Species of Wild Flora and Fauna of 1973 (CITES)
1 DORTA’s worldwide trade of Gallvectrra without the appropriate permit constitutes
a breach of CITES obligation relating to species listed under Appendix III.

III RAKKAB VIOLATED GENERAL PRINCIPLES OF INTERNATIONAL

ENVIRONMENTAL LAW.
A Rakkab breached its obligation under the ‘principle of equitable utilization of
shared resources.
B Rakkab breached its obligation under the ‘principle of sustainable development’.

PRAYER FOR RELIEF .....................................................................................................

2
 INDEX OF AUTHORITIES

Treaties and Conventions

3
I.C.J Cases

UN Documents

Books and Journals

Miscellaneous Documents

STATEMENT OF JURISDICTION

The State of Aurok and the Republic of Rakkab appear before the International Court

of Justice in accordance with Article 40(1) of its Statute through submission of a Special

4
Agreement for resolution of the all the differences between the Applicant and the Respondent

concerning the Kayleff Yak. This Court has jurisdiction over the dispute pursuant to Article

36(1) of its Statute, as both parties have agreed that this Court will adjudicate the dispute

under its ad hoc jurisdiction. The parties concluded this special agreement and Compromis in

The Hague, The Netherlands and jointly notified this Court of their special agreement on 14

September 2018.

5
 QUESTIONS PRESENTED

1. Whether Rakkab is responsible for DORTA’s internationally-wrongful acts of

harvesting the Kayleff Yak such that the latter’s actions are attributable to Rakkab

2. Whether the harvesting of the Yak in Rakkab violates Rakkab’s international legal

obligations concerning the protection of endangered species and the environment

STATEMENT OF FACTS

6
The Yak

The Gaur Highlands was considered to be the exclusive habitat of the Kayleff Yak for

more than 250,00 years. In the (northern hemisphere) spring and summer, young Yak are

born and the herd stays in their northern grazing lands (in present-day Aurok). Mating season

begins after the Yak migrate south to their autumn and winter range (in present-day Rakkab).

Throughout the 1990s and early 2000s, scientists consistently estimated the Yak population

to be roughly 750,000 individuals.

Traditional Yak Hunting

In 1000 BCE, the Pizvao Civilization emerge in the Gaur Highlands. The Pizvao

thrive mainly due to the Yak’s existence. The hunting was a complex community event

where at the end of it, those who participated in the kill were rewarded with a traditional dish

called Tirhinga Nos Lustuk. This kind of soup was considered to confer 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.

Republic of Aurok and Republic of Rakkab

In 1730, the Kingdom of Jeramia colonized the Gaur highlands but, in 1961, Jeramia

granted independence to all its colonies worldwide. In the Gaur Highland, the state of Aurok

arose. Aurok is a small, landlocked, least-developed country with a population of around 1.2

million, composed almost entirely of descendants of the Pivzao civilization. Aurok’s territory

comprises the northern 70 percent of the Gaur Highlands. To the present day, many Aurokans

continue to observe the Pivzao traditions, and the Yak remains of prime religious and cultural

significance. In particular, participation in a successful Yak hunt is considered a rite of

7
passage into adulthood for young Aurokans. On the other hand, Republic of Rakkab borders

Aurok to the south. It encompasses 30 percent of the Gaur Highlands, along with the fertile

plains to the south and east. Due to its geographical advantages, Rakkab emerged as a

regional power in the 1970s.

DORTA

In the 1960s, Rakkab focused heavily in research and development. It established

Department of Research, Technology & Application (DORTA), part of its mandate is the

discoveries of new medicines and treatments. In 1996, the Parliament of Rakkab privatized

DORTA where its board members are composed mostly of former Rakkabi government

ministers. According to the legislative act privatizing the Department – and according to

DORTA’s charter – the government of Rakkab must always own no less than 9.9 percent and

no more than 19.9 percent of the shares of DORTA. As of the present date, Rakkab holds

approximately 12% of DORTA’s stock and continues to subsidizes DORTA’s research and

development activities within and outside Rakkab.

Discovery of Lustuk Enzyme

Due to its lifestyle-related diseases, Dr. Isaac Bello, a Rakkabi-licensed doctor

working in a DORTA-operated hospital in Rakkab near the border of Aurok, found out that

Aurok has lower incidence of diabetes and obesity because of an enzyme found in the

gallbladder of the Yak, a key ingredient of the traditional Aurokan Tirhinga Nos Lustok.

DORTA subjected it to experimentation and found out that indeed the drug was effective in

the treatment of diabetes.

Gallvectra

8
 On November 2011, DORTA was granted patent for the medication derived from the

enzyme of Yak which they named as ‘Gallvectra’. In the global scene, Gallvectra sales

already topped €2 billion. To meet the demands, according to an investigative report Courier

Mail, DORTA since 2011 had been offering substantial cash reward for Yak’s gallbladder

through advertisements to hunters. Hundreds of citizens applied and was granted such

hunting licenses. From October 2015 to February 2016 alone, hunters killed nearly 30,000

Yak within the territory of Rakkab and delivered their gallbladders to DORTA.

YLSA

On November 2016, Rakkab Ministry of Agriculture released the application called

“YakTrakker to supposedly provide real-time tracking of Yak herd in Rakkab to allow

accurate estimates of Yak’s health. However, YLSA observed that the same was used by

hunters to hunt Yak more efficiently. YLSA pleaded its removal but Rakkab did not heed.

Researchers of the Yak Life Sciences Academy (YLSA) have published a report showing that

the delicate balance of the Aurokan way of life and the life cycle of Yak have been disturbed

by the DORTA-financed hunting and if present trends continue, there is a possibility that the

Yak will be extinct by 2040. .

States’ response on Yaks’ declining population

As a consequence of the decline in population of Yak, Aurokan Parliament enacted a

law to provide a 5-year moratorium on hunting of female Yak and to promote successful

breeding programs of Yak, but still to no avail. DORTA promised to institute its own captive

breeding program but to no avail.

9
 In June 2017, the Aurokan Parliament adopted the Yak Protection Act. The Act

prohibited the export of Yak products, subjected hunting of the Yak within Aurok to strict

licensing requirements, and imposed travel and financial sanctions on Rakkab and Rakkabi

companies and individuals present or doing business in Aurok.

International Agreements on Yak

On September 29, 2017, Yak was included in Appendix III of Convention on

International Trade in Endangered Species of Wild Fauna and Flora (“CITES”). It was

followed by the inclusion of Yak in the Appendix I of the Convention on Migratory Species

(“CMS”) in October 2017. By virtue of which, Rakkabi Ministry of Agriculture promulgated

AG/ 2017-03000 which seeks to imposed new and stricter regulation of license permits.

DORTA then suspended its payment to Yak gallbladder hunters until such time it receives a

new license. On January 2018, DORTA applied anew and was swiftly granted by the Rakkabi

government. Consequently, DORTA offered again new payments for gallbladder of the Yak.

YLSA’s annual survey indicated that DORTA agents killed approximately 28,500 Yak

during January and February 2018.

Both Rakkab and Aurok are also parties of the Vienna Convention on the Law of

Treaties (“VCLT”) and Convention on Biological Diversity of 1992 (“CBD”).

SUMMARY OF PLEADINGS

1st Pleading

The act of harvesting Yak is attributable to Rakkab and constitutes unlawful act for

which Aurok is entitled to compensation. Rakkab is responsible because Rakkab had an

10
obligation to prevent DORTA’s wrongful act of indiscriminate hunting of Yaks but failed to

to do so. Moreover, DORTA, although a private entity, is exercising forms of governmental

authority and is constituted under the effective control of the government of Rakkab. In any

event, Rakkab acknowledges and accepted DORTA’s wrongful act as its very own because

the government of Rakkab defended the necessity of the hunting of Yaks and rejected that

Yaks are in danger of extinction.

2nd Pleading

Rakkab breached its legal obligations under international law relating to the

protection of endangered species and the environment when it indiscriminately harvest the

yaks. Rakkab failed to comply with its obligation under CBD, CMS, and CITES. Rakkab

failed to act on the basis of Precautionary Approach when it did not conduct an

Environmental Impact Assessment (EIA). Furthermore,under CBD, Rakkab has the

obligation to cooperate with Aurok, which it failed to do. Rakkab still continued with its

indiscriminate harvesting, an act contrary to the purposes of CBD. Moreover, the harvesting

of Yak is not ‘taking’ within the contemplation of CMS because the taking was for

commercial purpose. The taking is not for the protection of Yaks, on the contrary, it operate

to the detriment of the Yak population.

3rd Pleading

Rakkab breached its obligations under the ‘principle of equitable utilization of shared

resources’ and the ‘principle of sustainable development’. It is necessary for states to

cooperate with the utilization and preservation of shared resources. Aurok made every effort

to cooperate with Rakkab for the protection of the Yak. However, Rakkab continued to

11
harvest Yaks in spite of the reports of imminent danger of extinction of the Yaks. Such acts

are to the detriment of the future generation to meet its need and benefit from the Yaks.

PLEADINGS

I. THE HARVESTING OF YAK IS AN INTERNATIONALLY WRONGFUL ACT

ATTRIBUTABLE TO RAKKAB, AND THUS, RAKKAB MUST COMPENSATE

AUROK.

A. Harvesting of Yak is an internationally wrongful-act.

12
 Article 1 of the Articles on the Responsibility of States for Internationally

(“ARSIWA”) provides that every internationally wrongful act of the state entails

responsibility. Internationally wrongful acts of States arise when there is an act or omission

attributable to said State, which constitutes a breach of an international obligation of the

state.1 Essentially, DORTA’s harvesting of Yak is an internationally-wrongful act because

the same constitutes a breach of its legal obligations of the custom between the States of

Rakkab and Aurok, specifically, the historical rights of Yak belongs to the State of Aurok.

1. There exists a regional customary law between Aurok and Rakkab, that is, Aurok

has a historic right to the Kayleff Yaks.

In the Asylum case2, the International Court of Justice confirmed as a matter of

principle that there may be sort of custom between two states only as distinguished from the

general customary law. In cases where a State is invoking special customary law, the Court

will look into the (1) evidence of a local custom, (2) if it is "accepted as law" by the parties,

and (3) if it is constant and uniform through passage of time. 3 Such practice emanates from

acquiescence over a period of time of States directly affected4. The practice clearly

established and accepted will now be considered as governing the relations of these States 5.

In this case, the Honorable Court must attribute decisive effect to the traditional

practice of Aurokans to hunt Yaks for the purpose of determining the specific rights and

obligations between Aurok and Rakkab. The practice of Yak hunting is already practiced by

Aurokans continuously and uninterruptedly since 1000 BCE long before Rakkab allowed

1
Draft Articles on Responsibility of States for Internationally Wrongful Acts art. 2, International Law
Commission, U.N.GAOR, 56th Sess., Supp.No.10, U.N.Doc.A/56/10(2001).
2
Asylum Case (Colombia v. Peru), Judgement, ICJ, 20 November 1950, available at:
https://www.refworld.org/cases,ICJ,3ae6b6f8c.html [accessed 3 March 2019]
3
See case concerning Right of Passage over Indian Territory (Portugal v. India), Judgment, 1957 I.C.J. 125
(Nov. 26)
4
id.
5
id.

13
 DORTA to engage in the hunting of Yaks6. Such is attended by constant and long uniform

usage. Rakkab tolerated the tradition practiced by Aurok. This has become a historic right

appertaining to Aurok. Consequently, Rakkab is precluded from hunting the Yaks as it will

violate Aurok’s historic rights.

a. Aurok is an injured state.

Under Customary International Law, an “injured State” can invoke responsibility of

another State if the obligation breached is owed to a group of States including the claiming

State and if the breach of the obligation specially affects that State. 7Aurok is specifically

injured by the harvesting of Yak by Rakkab because their Pizvao tradition of Yak hunting

and the drinking of Tirhinga Nos Lustok where it is considered as a rite of passage to

adulthood for young Aurokans8, is impinged.

B. Rakkab is responsible for its failure to prevent DORTA from harvesting the

Yak.

In Zafiro case,9 the Court held that although private individuals are not regarded as

state officials that would warrant liability, the state may still be responsible for failing to

exercise the control necessary to prevent such acts. Despite several objections raised by

Aurok against DORTA’s harvesting of the Yaks, Rakkab did not heed to Aurok’s objection

nor once and for all categorically stop the hunting by Rakkabi citizens financed by DORTA.

Instead, they justified DORTA’s action on manufacturing Gallvectra as helpful to promote

the right of health worldwide.10

6
Compromis ¶ 4
7
James Crawford, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE
RESPONSIBILITY INTRODUCTION, TEXT AND COMMENTARIES 257 (2002).
8
Compromis, ¶ 2
9
Zafiro case (Great Birtain v. The United States), R.I.A.A. 60 (1925)
10
Compromis, ¶ 31

14
1. Rakkab sanctioned and controlled DORTA’s acts.

Basic is the rule in State responsibility that if an action bears no relation to the state,

the state cannot, and will not be held responsible.11 Further, ARSIWA provides that conduct

will be attributable to the state if such conduct of a person or group of persons is in fact

acting ‘on the instructions of, or under the direction or control of, that state. 12 In Nicaragua

case13, the ‘effective control test’ was adopted by the ICJ in determining whether the United

States was responsible of the acts of the Nicaragua’s contras. The requisites for effective

control test are: (a) existence of de facto link by virtue of factors such as financing,

organising, training, selecting targets and planning, and (b) existence of control such that it is

clear that the acts had been ordered or imposed on the relevant individuals and entities by the

state14.

The acts of DORTA bear relation to Rakkab as in fact the latter is in control of the

former with respect to the continuous harvesting of Yak. The privatization of DORTA cannot

be conveniently used as a mere guise to avoid responsibility in the decline of the population

of Yak. As can be gleaned in the records, Rakkab financed the activities of DORTA as it

subsidizes the activities of DORTA, whether inside or outside of Rakkab.15 Rakkab must

always own no less than 9.9 percent and no more than 19.9 percent of the shares of DORTA,

as in fact Rakkab owned 12% stock of DORTA as of the present.16 On top of that, the

government of Rakkab enforces DORTA as the only entity that can engaged in the sale of

prescription medications.17 In other words, Rakkab exercises effective control over DORTA

11
Jan Klabbers, The Law of Responsibility, in International Law 124–139 (2013).
12
supra note 1, art. 8
13
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
14
id.
15
Compromis, ¶ 9
16
Compromis, ¶ 8
17
id

15
because without the subsidy and the government-enforced monopoly, DORTA cannot

proceed with its mandate in the first place.

2. DORTA is exercising elements of governmental authority.

Articles of State Responsibility considers an action or conduct of a non-state organ as

an act of the State under international law provided it exercises some elements of

governmental authority and the same is empowered by the law of the state and, provided

further that the entity is acting in that capacity in the particular instance.18

The records show DORTA is established initially in 1965 as an organ of the state with

the mandate of research and development which includes the discovery and dissemination of

new medicines and treatments19. However, when Rakkab endeavored to privatize DORTA in

1996 by legislation20, such privatization did not take away the governmental nature of its

mandate in view of the government-enforced monopoly on the prescription medicines and the

government subsidies on the research and development activities of DORTA within and

outside Rakkab which the Parliament of Rakkab itself granted. Simply stated, the functions

of DORTA are delegated governmental functions.

3. Assuming arguendo that DORTA is not a state organ, Rakkab, nevertheless, adopted

and acknowledged the actions of DORTA as its own.

Under Article 11 of ARSIWA, where a state subsequently acknowledges and adopts

conduct as its own, then it will be considered as an act of state under international law

entailing responsibility, even though such conduct was not attributable to the state

18
supra note 1, art. 5
19
Compromis, ¶ 7
20
Compromis, ¶ 8

16
beforehand.21 Acknowledgement and adoption of conduct by a State might be express or it

might be inferred from the conduct of the State in question22. In Lighthouse Arbitration and

Bichmann case23, the arbitral tribunal held Greece liable for the breach of a concession

agreement entered into by Crete when Crete was a territory of the Ottoman Empire. In such

case, condoning an unlawful act constitutes a sufficient acknowledgment24.

The inaction of the Rakkab to once and for all prohibit the further harvest Yak is an

evidence enough of its acknowledgement or approval, albeit impliedly. The records would

show that Rakkab, in the heat of many objections by Aurok and conservationist, condoned

the unlawful taking of Yaks. Rakkab, through its delegate at the Twelfth Meeting of the

Conference of Parties to the CMS in October 2017 where the Yak was included in Appendix

I, expressed its objection and disapproval of the such inclusion saying that the ‘Yak is not in

danger and there is no reason to believe that the Yak will be extinct in our lifetimes’. The

delegate further said that “harvesting the Yak allows the manufacture of a medicine vital and

necessary for the promotion of the right to health worldwide25.” Such condonation by Rakkab

is sufficient acknowledgement or approval of DORTA’s acts which in effect translated the

latter’s acts into the former’s acts.

II. RAKKAB BREACHED ITS LEGAL OBLIGATIONS UNDER INTERNATIONAL

LAW RELATING TO THE PROTECTION OF ENDANGERED SPECIES AND THE

ENVIRONMENT WHEN IT INDISCRIMINATELY HARVEST THE YAKS.

Rakkab, as a member of the international community, should comply in good faith

with its treaty obligations. Any state party to a treaty is under an obligation not to contravene

21
Malcolm Shaw, INTERNATIONAL LAW, 707 (5th edition 2003).
22
Svitlana Andreichenko, Attribution of conduct which is acknowledged and adopted by a state as its own:
employing the conception ex post facto, Visegrad Journal on Human Rights, 8 (2015),
http://vjhr.sk/archive/2015_1/3.pdf.
23
Lighthouses Case (France v. Greece), 1934 P.C.I.J. (ser. A/B) No. 62 (Mar. 17)
24
Id.
25
Compromis, ¶ 31

17
its provisions.26 In this case, Rakkab has failed to comply in good faith with its treaty

obligations under CBD, CMS, and CITES.

A. Rakkab failed to comply with its obligations under Convention on the Biological

Diversity (CBD)

Rakkab, as a signatory to the CBD, failed to undertake measures towards conservation

and protection of biodiversity, particularly the protection of the Yak. The harvesting of Yak

for the manufacture of Gallvectra did not undergo an Environmental Impact Assessment

(EIA). Furthermore, it was not in accordance with the sustainable use of resources as

contemplated by CBD and is not in conformity with the precautionary principle.

1. Rakkab’s action is inconsistent with the ‘Precautionary Principle’.

Numerous international instruments have long compelled State parties to proceed on

the basis of a ‘Precautionary Approach or Principle’ in recognition of the State’s obligation to

protect the environment from harm or prospective harm despite the lack of scientific

certainty.27 Being a customary principle of international law, the Precautionary Principle is

also subsumed under CBD. Pursuant to CBD Preamble, it states that when there is a “threat

of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason

for postponing cost-effective measures to prevent environmental degradation.”28

Interpretation on the Precautionary Principle varies, on one hand, it mandates that state would

not have to wait for proof of harm before taking action; and on the other, it mandates that

26
Vienna Convention on the Law of Treaties, Art. 26, May 23, 1969, 1155 U.N.T.S. 331
27
See Owen Mclntyre & Thomas Mosedale, The Precautionary Principle as a Norm of Customary International
Law, Journal of Environmental Law 221–242 (1997)
28
Convention on Biological Diversity, preamble, June 5, 1992, 1760 U.N.T.S. 9 (No. 30619) [hereinafter
CBD].

18
states wishing to undertake certain activities will have to prove that the activities will not

cause harm to the environment29.

The ‘YLSA’s 2016 Report’ on the possibilities of extinction by 2040 based on the

observed trend of high rates of decline among the young and female of the species is a

manifestation that there is already a scientific certainty of threat of serious or irreversible

damage to the Yak population30. On that basis alone, Rakkab ought to have acted more

cautiously. On the contrary, Rakkab acted recklessly, in view of the failure of the captive

breeding program by DORTA, the least that Rakkab could have done, is to provide a

moratorium, as what Aurok did, on the the hunting of female Yak of breeding age in order

that the Yak population can recover.31 But even then, before the YLSA Report was published

providing scientific certainty on the threats to the Yak population, Rakkab in allowing

DORTA to hunt Yaks failed to prove that such activities will not cause harm to the Yak

population.

2. Rakkab failed to conduct Environmental Impact Assessment (EIA).

Under CBD, Environmental Impact Assessment is required in order to conserve

species and their habitat. Article 14 of the same convention reads:

“1. Each Contracting Party, as far as possible and as appropriate,

shall:

(a) Introduce appropriate procedures requiring environmental

impact assessment of its proposed projects that are likely to

have significant adverse effects on biological diversity with a

view to avoiding or minimizing such effects and, where

29
See Max Soto, General Principles Of International Environmental Law, 3 ILSA Journal of International &
Comparative Law: 201 (1996), https://nsuworks.nova.edu/ilsajournal/vol3/iss1/10.
30
Compromis,¶17
31
Compromis,¶16

19
 appropriate allow for public participation in such procedures.” xxx

(Emphasis Supplied)

In this case, as discussed above, Rakkab did not put in place any procedures for

assessing the environmental impacts of DORTA’s activities on the Yak population. Hence,

Rakkab violated Article 14 of the CBD.

3. Rakkab failed to comply with its ‘sustainable use’ obligations under CBD.

As an essential element of sustainable development, sustainable use means using the

components of biodiversity “in a way and at a rate that does not lead to the long-term decline

of biological diversity”32. It cannot be gainsaid that CBD itself stresses the right of states to

determine how their resources are utilized provided that states caused no harm to the

environment of the other state.33 Further, CBD mandates cooperation between contracting

parties.

a. Rakkab failed to cooperate with Aurok with respect to Yak protection.

Article 5 of CBD requires that parties, “as far as possible and as appropriate,

cooperate with other Contracting Parties, directly or where appropriate, through competent

international organizations, in respect of areas beyond national jurisdiction and on other

matters of mutual interest, for the conservation and sustainable use of biological diversity” 34.

In the present case, when Prime Minister Sumun of Aurok visited Rakkab in order to

asked the DORTA to cease Yak harvest in order that the herds can recover, the CEO of

DORTA, Ms. Alexander declined to comment on any particular course of action.35 Later, in

an annual shareholder meeting, Ms. Alexander dismissed fears of declining Yak population

as unfounded even if the YLSA has already published its report that ‘if present trends of

32
Patricia Birnie & Alan Boyle, International Law And The Environment, 621, (3rd ed. 2008)
33
CBD, art. 3.
34
CBD, art. 5
35
Compromis, ¶ 20

20
harvest will continue, Yak will in all likelihood be extinct by 2040’.36 Thus, if Rakkab will

continuously deny the alarming declining of Yak population, cooperation between Aurok and

Rakab for the protection of Yak will never materialize.

b. Rakkab caused environmental harm to Aurok.

Article 3 of CBD recognizes the right of the Rakkab to exploit their own resources

within their jurisdiction, however, it does not mean that they can exploit resources without

limitation, they have the “responsibility to ensure that activities within their jurisdiction or

control do not cause damage to the environment of other States or of areas beyond the limits

of national jurisdiction.37” Just as Yak is important for Rakkab for the manufacturing of

Gallvectra, Yak is also important for Aurok for their tradition. Being a shared resource,

DORTA’s indiscriminate hunting of Yaks threatening its population will certainly cause

environmental damage to Aurok.

c. Indiscriminate harvesting of Yaks threatened its population.

Article 8 of CBD requires Parties to ensure the conservation and sustainable use of

biological resources38. In the guise of conserving the yaks, the Rakkabi Ministry of

Agriculture issued Regulation AG/2017-0300 which revoked the existing permits, however,

the government swiftly granted permit to DORTA when it applied again 39. In effect, hunting

of Yak indiscriminately continues. It is indiscriminate due to the fact that remunerations are

given to Rakkabi hunters without any safeguards for its protection or conservation. This

patently shys away from the principle of sustainable use under CBD.

36
Compromis, ¶ 17
37
CBD, art. 3
38
CBD, art. 8(c)
39
Compromis, ¶ 32

21
B. Rakkab violated its obligations under the Convention on the Conservation of

Migratory Species of Wild Animals of 1979 (CMS)

The CMS stresses that Parties must conserve and restore endangered migratory

species to a favorable conservation status.40 Rakkab violated its obligations under CMS by

indiscriminately harvesting the Yak for its medicinal use.

1. Yak is listed in Appendix I of the CMS.

Article III, paragraph 4 of the CMS provides that the parties that are Range States of a

migratory species listed in Appendix I shall endeavour:

xxx b) to prevent, remove, compensate for or minimize, as

appropriate, the adverse effects of activities or obstacles that

seriously impede or prevent the migration of the species; and

c) to the extent feasible and appropriate, to prevent, reduce or

control factors that are endangering or are likely to further

endanger the species, including strictly controlling the

introduction of, or controlling or eliminating, already introduced

exotic species. xxx (Emphasis Supplied)

In the present case, Regulation AG/2017-0300 was enacted by the Rakkab Ministry of

Agriculture which terminates all existing and at the same time grants new licensing permits

for the hunting of Yak.41 The issuance of licensing permit to hunt Yaks even with an allowed

limit of 30,000 Yak annually will still prevent the Yak to migrate and, thereby, seriously

impede the mating of the Yaks because of its indiscriminate nature, there is no regulation to

40
See Convention on Migratory Species, June 23, 1979,1651 U.N.T.S. 333 [hereinafter CMS].
41
Compromis, ¶ 32

22
the effect that only male yak will be hunted. If there is no moratorium on the hunting of

female yaks, mating will be adversely affected.

Likewise, the enacted regulation does not provide specific measures on how to closely

monitor the total number of Yak killed, on the contrary, it will highly encourage continuous

killing of Yaks without registering it due to the monetary reward by DORTA. This regulation

does not at all prevent, reduce or control the factors that are endangering the Yak population,

but quite the opposite, it promotes the hunting of Yak in exchange of money in disregard of

its adverse impacts on the population as well as to the cultural traditions of Aurok.

2. DORTA’s taking of Yak is inconsistent with the ‘taking’ as contemplated by CMS

The CMS prohibits party-states in taking of animals or species listed in Appendix I of

the same convention.42 Under CMS, taking is broadly defined as ‘hunting, fishing, capturing,

harassing, deliberate killing or attempting to engage in any such conduct." 43 Concededly,

certain exception are admitted by the CMS for such prohibition, these are namely: (1) if the

taking is for scientific purposes; (2) if the taking is for the purpose of enhancing the

propagation or survival of the affected species; (3)if the taking is to accommodate the needs

of traditional subsistence users; or (4) extraordinary circumstances so require. 44 Moreover,

the taking must be precise as to content and limited in space and time for any of the aforesaid

exceptions to apply. Most importantly, such taking should not operate to the disadvantage of

the species.45 In the present case, DORTA’s actions did not fall under any exceptions

provided for by the CMS.

a. The taking of Yaks was for commercial purpose.

42
CMS, art. 5
43
CMS, art. 1(i)
44
CMS, art. 5, par. a to d
45
ibid

23
 In Whaling in the Antarctic,46 the ICJ did not provide a definition of ‘scientific

purposes’, however it considers: (1) whether the programme under which these activities

occur involves scientific research; and (2) whether the means used in the taking such as the

use of lethal methods are reasonable in relation to achieving its stated objectives.47

The case at hand would readily show that the taking of Yaks were neither undertaken

for scientific research nor was it for the purpose of survival of the Yak and for the subsistence

of traditional users, as it was clearly for commercial purposes under the pretext of serving the

mankind. But even if the taking of the Yaks was for scientific purpose, the means employed

for the taking particularly of remunerating hunters, is manifestly unreasonable for it

encourages rather than limits the number of Yaks to be hunted. No safeguards were put in

place to protect the Yak population.

b. There was no extraordinary circumstance that would warrant the taking of

Yak.

In order that ‘extraordinary circumstance’ could be invoked as an exception, a Party

must show that it lacked reasonable alternatives, and that the taking is the only available

option.48 In this case, there is no showing that the rate of persons diagnosed with diabetes is

uncontrollable, and surely, Gallvectra is not the only effective treatment available.

Assuming there was an extraordinary circumstance, the exception is unavailing because such

exception is interpreted in light of the object and purpose of the CMS which is the protection

of listed species under CMS rather than affording discretion to party states in the taking of

species.49

46
See Whaling in the Antarctic (Australia v Japan: New Zealand Intervening) (31 March 2014)
47
Hamish Reid , LET OFF THE HOOK: WESTERN AUSTRALIAN DRUM LINING OF GREAT WHITE
SHARKS A DISCUSSION OF AUSTRALIAN ENVIRONMENTAL LAW, 29 (2014),
https://www.otago.ac.nz/law/research/journals/otago085116.pdf (last visited Mar 3, 2019).
48
ibid
49
ibid

24
 c. The taking of Yaks is not limited in space and time.

Essentially, the taking of Yaks by DORTA is not regulated; there is no showing that

the hunting will only be for a certain period of time. For as long as Yak exist, the hunting

continues. Such operates to the extreme disadvantage of the Yak population.

C. Rakkab violated its obligations under the Convention on International Trade in

Endangered Species of Wild Flora and Fauna of 1973 (CITES)

The aim of CITES is to ensure that international trade in specimens of wild animals

and plants does not threaten survival of the species.50 More specifically, CITES forbids the

international trade of listed species through a three-appendix listing regime. Yak is listed

under Appendix III. Appendix III consists of “species that are protected in at least one

country, which has asked other CITES Parties to garner international assistance in controlling

their trade.”51 Rakkab subjected Gallvectra to worldwide trade where a derivative of Yak is

an essential ingredient.

1. DORTA’s worldwide trade of Gallvectrra without the appropriate permit constitutes

a breach of CITES obligation relating to species listed under Appendix III.

Compliance with CITES requires that Parties to the Convention “take appropriate

measures to enforce the provisions of the present Convention and to prohibit trade in

specimens in violation thereof.”52 In so doing, CITES provides that the export of any

specimen of a species included in Appendix III from any State which has included that

species in Appendix III shall require the prior grant and presentation of an export permit.53

50
See Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973, 993
U.N.T.S. 243 [hereinafter CITES].
51
CITES, art. II (3)
52
CITES, art. VIII (1).
53
CITES, art. V (2)

25
Under CITES, specimen is ‘any readily recognizable part or derivative thereof specified in

Appendices III in relation to the species’.54

In this case, Yak is a specie listed under Appendix III after Aurok sought for its

inclusion without objection from Rakkab.55 Rakkab is thereby bound with the inclusion of the

Yak in Appendix III. Essentially, the Gallvectra is the Yak, without the latter’s enzyme

sourced from its gallbladder, Gallvectra is nothing. In other words, the enzyme taken in the

Yak in the Gallevctra is a derivative thereof. Hence, the worldwide trade of Gallvectra is a

prohibited trade in violation of the CITES. There is nothing to show that DORTA applied a

permit or exerted efforts to apply for a permit for its trade. In fact, Rakkab failed to secure the

appropriate permits allowing them to trade Gallvectra worldwide.

III. RAKKAB VIOLATED GENERAL PRINCIPLES OF INTERNATIONAL

ENVIRONMENTAL LAW.

Rakkab failed to act within the general notions forming part of the International

Environmental legal system relating to the ‘Principle of Equitable Utilization of Shared

Resources’ and the ‘Principle of Sustainable Development’. These principles emerged

because of the generality of rules and principles derived from treaties, agreements, and

customs.56

A. Rakkab breached its obligation under the ‘principle of equitable utilization of shared

resources.

The principle of Equitable Utilization of shared resources between two or more states

asserts that it is necessary that ‘States cooperate with a view to controlling, preventing,

54
CITES, art. I-b (ii)
55
Compromis, ¶ 28
56
Soto, supra note 27, p. 194-207

26
reducing or eliminating adverse environmental effects which may result from the utilization

of such resources. Such cooperation is to take place on an equal footing and taking into

account the sovereignty, rights and interests of the States concerned.’ 57 Such obligation is

based primarily on cooperation grounded on the system of information and prior consultation

and notification in order to achieve optimum use of such resources without causing damage

to the legitimate interests of other states.58

In the present case, Rakkab, in granting DORTA a permit for Yak harvesting, did not

consult Aurok prior to the granting of permit knowing that it is a shared resource and such

resource is an important part of the tradition of Aurok. Neither was there any cooperation

regarding the utilization of Yak resources nor prior consultation. Rakkab unilaterally

permitted the hunting of a shared and protected species.

B. Rakkab breached its obligation under the ‘principle of sustainable development’.

Commonly accepted definition of Sustainable Development by the international

community is that “Development that meets the needs of the present without compromising

the ability of future generations to meet their own needs.”59

The act of indiscriminately harvesting of Yak by DORTA such as giving

remuneration to Rakkabi hunters encourages citizens to hunt Yaks as many as possible

without limitation. Concededly, the government of Rakkab issued a license to DORTA where

it stipulates that “DORTA, its employees and agents, in view of the important scientific and

medical benefits of the gallbladder of the Yak, to harvest on the territory of Rakkab as many

Yak as are required for the development and manufacture of Gallvectra, but in no event more

57
UNEP Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the
Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States A/CN.4/L.353.,
Principle 1, May 19, 1978
58
Soto, supra note 27, p. 196
59
United Nations General Assembly – Res. 42/187, Report of the World Commission on Environment and
Development, Dec. 11, 1987

27
than 30,000 Yak annually, for a period of three years.”60 The 30,000 limit annually for three

years is unsustainable in view of the alarming study that possibilities of extinction are

nearing. Rakkab has a burden of showing that the 30,000 limit would allow the Yak

population to recover, which, in this case, Rakkab failed to do so. Such is to the detriment of

future generations to enjoy the benefits derived from the Yaks. .

PRAYER FOR RELIEF

WHEREFORE, considering the foregoing submissions, Aurok most respectfully requests the

Honorable International Court of Justice to:

1. Declare that Rakkab is responsible for the internationally-wrongful act of preventing

the harvesting of Yak

2. Adjudge that Rakkab has violated its legal obligations relating to the protection of

endangered species and the environment.

Respectfully submitted,
Agents of the Applicant State of Aurok

60
Compromis, ¶ 33

28