TC No. 417 Petitioner

P - 417
4th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2017
IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS
CASE CONCERNING THE LEGALITY OF DEFENCE OF NECESSITY IN INTERLINKING

OF RIVERS AND OTHER ISSUES.
REPUBLIC OF MEROVIDEA
(APPLICANT)
V.
FEDERATION OF BREZANIA
(RESPONDENT)
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT

TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………………….II
STATEMENT OF JURISDICTION........................................................................................VI
STATEMENT OF FACTS .................................................................................................... VII
STATEMENT OF ISSUES .....................................................................................................IX
LEGAL PLEADINGS ............................................................................................................... 1
I. BREZANIA HAS VIOLATED THE “TREATY OF EQUITY” AND “UBA

AGREEMENT” AND BY DOING THIS BREZANIA HAS VIOLATED THE RIGHT TO
WATER OF MEROVIDEAN PEOPLE. ................................................................................... 1
II. BREZANIA IS RESPONSIBLE FOR ENVIRONMENTAL DAMAGE SUSTAINED

BY MEROVIDEA AND THE LIABILITY OF BREZANIA IS CO-EXTENSIVE WITH
THE CORPORATIONS. ........................................................................................................... 4
III. MEROVIDEA HAS RIGHT TO SUBJECT ASSETS OF CENTRAL BANK OF

BREZANIA TO ENFORCE PROCEEDINGS. ...................................................................... 10
IV. MEROVIDEA DID NOT VIOLATE INTERNATIONAL LAW BY IMPOSING

TRADE RESTRICTIONS ON BREZANIA ........................................................................... 12
V. MEROVIDEA DID NOT VIOLATE INTERNATIONAL LAW BY CONDUCTING

NUCLEAR TEST. ................................................................................................................... 15
VI. MEROVIDEA HAS SOLE RIGHT OVER CREEK OF TENLING AS PER

HISTORICAL EVIDENCE. .................................................................................................... 17
PRAYER ................................................................................................................................... X
Memorial for Applicant

I
INDEX OF AUTHORITIES
JUDICIAL AND ARBITRAL DECISIONS
AIR SERVICES AGREEMENT CASE (France v. United States) (1978) Arbitral 11

Tribunal: Riphagen, President; Ehrlich, Reuter. 18 R.I.A.A. 416.
Bosnian Genocide Case [2007] ICJ Rep 390–415 5
Case Concerning Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), 1989 I.C.J. 15, (July 10
20).
Case Concerning the Barcelona Traction, Light and Power Company Limited, 8
(Belgium. v. Spain), 1970 I.C.J. 3, 6 (Feb. 5).
Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4. 8
Fadeyeva v Russia [2005] ECHR 376. 5,6
Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sept. 25). 7,8,11,
14
Guerra v Italy (1998) 26 EHRR 357. 6
Handelskwekerij G.J. Bier B.V. v. Mines de Potasse d'Alsace S.A., 1976 E.C.R. 8
1735 (Neth.).
International Commission on the River Oder Case, (Denmark, Czechoslovakia, Fr, 8
Ger, U.K, Swe v. Pol) PCIJ, Series A, No. 23 (1959).
International Shoe Co. v. Washington 326 US 310 (1945). 10
ISLAND OF PALMAS ARBITRATION,(NETH V. US) 2 R. INT‟L. ARB. AWARDS, 829, 831 8
(1928).
Lac Lanoux Arbitration (France v. Spain) 24 I.L.R (1957). 8
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon and 18
Equatorial Guinea (intervening) v. Nigeria) Judgment, Merits, [2002] ICJ Rep 303.
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226. 8, 16
Lopez Ostra v Spain (1994) 20 EHRR 277. 6
Lotus Case, (France. v. Turkey.), 1927 P.C.I.J. 5, 18 (Sept. 7). 15
Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award 10
(Aug. 30, 2000). 1
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. Unites 1
States of America) 1986 I.C.J. 14.
Minquiers and Ecrehos case (France v. United Kingdom) Judgment, Merits, [1953] 18

II
ICJ Rep 47.

Mox Plant (Ir. v. U.K.), 42 I.L.M. 1187 (Perm. Ct. of Arb. 2003). 7
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; 1, 19
Federal Republic of Germany v. Netherlands) , [1969] ICJ Rep 3
Nuclear Tests (Aus. v. Fr.), 1974 I.C.J. 253 (Dec. 20). 7, 16
Öneryıldız v Turkey, Merits and just satisfaction, App no 48939/99, ECHR 2004- 6
XII, (2005) 41 EHRR 20, [2004] ECHR 657, 18 BHRC 145, IHRL 3582 (ECHR
2004).
Panel Report, European Communities–Measures Affecting Asbestos and Asbestos– 12
Containing Products, ¶8.171, WT/DS135/R (Sept. 18, 2000). [‘Asbestos Case’].
Portuguese Colonies case (Naulilaa incident) (Portugal v. Germany), UNRIAA, vol. 11
II (Sales No. 1949.V.1), p. 1011, at pp. 1025–1026 (1928).
Report of the Panel, United States–Prohibition of Imports of Tuna and Tuna 14
Products from Canada,L/5198–29S/91 (Dec. 22, 1981).
S.D. Myers, Inc. v. Canada, First Partial Award (Nov. 13, 2000), 40 I.L.M. 1408, 10
1440 (2001).
Southern Blue fin Tuna (Austl. & N.Z. v. Japan), 39 I.L.M. 1359. 7
Sovereignty over Certain Frontier Land, (Belgium v Netherlands), Merits, 18
Judgment, (1959) ICJ Rep 209.
Taskin v Turkey [2006] 42 EHRR 50. 6
Tehran Hostages Case, ICJ Reports (1980) 3. 5
Temple of Preah Vihear [Cambodia v Thailand], Merits, Judgment, [1962] ICJ Rep 18
6.
Territorial Dispute (Libya/Chad), [1994] ICJ Rep 6. 19
Trail Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941). 5, 8, 9
US—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the 13
Panel, WT/DS58/R (1998); Report of the Appellate Body, WT/DS58/AB/R (1998)
68–9 [‘Shrimp-Turtle Case’].
US—Standards for Reformulated and Conventional Gasoline, Report of the 13
Appellate Body, WT/DS2/AB/R (1996); 35 ILM (1996) 274 [‘US Gasoline
Standards Case’].
Verlinden v. Central Bank of Nigeria 79 ILR, p. 548. 10

III
TREATIES AND CONVENTIONS
Civil Liability for Nuclear Damage and the Paris Convention, 1988. 17
Convention on Supplementary Compensation for Nuclear Damage, 1997. 17
Convention on the law of Non Navigational Use of Water Courses, 1997 36 ILM 3,4,6,7
700 (1997); G.A. Res. 51/229, U.N. GAOR, 51st Sess., 99th mtg., UN Doc
A/RES/51/229 (1997).
Convention on the Protection and Use of Trans-Boundary Watercourses and 3
International Lakes, 1936 UNTS 269; 31 ILM 1312 (1992).
General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 194. 12
ICJ Statute, 3 Bevans 1179; 59 Stat. 1031; T.S. 993. 15
Protocol to Amend the 1963 Vienna Convention, 1997. 17
The Convention on Nuclear Safety, 1994, 33 ILM 1514 (1994). 17
Treaty of Equity, 1991. 1, 2, 6
United Nations Convention on the Law of the Sea, 10th December, 1982, 1833 7
UNTS.
United Nations Convention to Combat Desertification, 1954 UNTS 3; 33 ILM 1328 6
(1994).
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679. 15
BOOKS
CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 296 (2012). 15

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 18 (OXFORD 6TH ED. 7
2004).
MALCOLM N. SHAW, INTERNATIONAL LAW 760 (CAMBRIDGE UNIVERSITY PRESS 5th 8
ed., 2003).
MALCOLM N. SHAW, INTERNATIONAL LAW, (6th ed., 2008). 3, 5, 9
PATRICIA BIRNIE, ALAN BOYLE, CATHERINE REDGEWELL, INTERNATIONAL LAW 7,9, 16,
AND THE ENVIRONMENT, 159-160 (Oxford University Press, 3rd ed., 2009). 17
TINKER, STATE RESPONSIBILITY AND THE PRECAUTIONARY PRINCIPLE, IN THE 8
PRECAUTIONARY PRINCIPLE AND INTERNATIONAL LAW: THE CHALLENGE OF
IMPLEMENTATION (1996).
PETER CAMERON ET AL. (EDS) IN NUCLEAR ENERGY AFTER CHERNOBYL, GRAHAM 17
& TROTMAN PUBLISHERS 73 (1988).

IV
YEHUDA Z. BLUM, HISTORIC TITLES IN INTERNATIONAL LAW 100 (Ed. 1, 1965). 18
DOCUMENTS
I.L.C., Articles on the Responsibility of States for Int‘lly Wrongful Acts, GA U.N. 4, 5, 9,
Doc. A/56/10 (2001). 10,11,
15
I.L.C. Draft Articles on Responsibility of States for Internationally Wrongful Acts 4, 5
with Commentaries, [2001] 2 Y.B. Int’l L. Comm’n 31.
I.L.C Draft Articles on Transboundary Harm, U.N.Doc.A/CN.4/318/Add.5-7 at 9
392.
Report of the International Law Commission on the Work of its Fifty-Third Session 8
(2001), 150-51, U.N.
United Nations Conference on Environment and Development, June 3-14, 1992, 7
Declaration on Environment and Development, prin. 15, 31 I.L.M. 874.
United Nation, Guidelines for Reducing Flood Losses, 2002, 4
https://www.unisdr.org/we/inform/publications/558.
United Nations Conference on Environment and Development, June 3-14, 1992, 7
Declaration on Environment and Development, prin. 15, 31 I.L.M. 874.
OTHER AUTHORITIES
Alexander B. Murphy, Historical Justifications for Territorial Claims, 80 19

ANNALS ASS’N AM. GEOGRAPHERS 531 (1990).
Committee on Trade and Environment, Note by the Secretariat: Gatt/WTO Dispute 12
Settlement Practice Relating to GATT Article XX, Paragraphs (B), (D) and (G),
WT/CTE/W/203 (Mar. 8, 2002).
O.W. Bowett, Estoppel Before International Tribunals and Its Relation to 18
Acquiescence, 33 British Year Book of International Law 198 (1957).
PAUL C.SZASZ, The Law and Practices of the International Atomic Energy 16
Agency 679. IAEA, VIENNA, 1970 STI/PUB/250.
Professor Andrew F. Burghardt, The Bases of Territorial Claims, 63 18
GEOGRAPHICAL REVIEW 225 (1973).
Rudolf Dolzer, Indirect Expropriations: New Developments?, 11 N.Y.U. ENVTL. 10
L.J. 64, 65 (2002).

V
STATEMENT OF JURISDICTION
Pursuant to the Joint Notification and the compromis concluded on 12th September 2017,
agreed to therein, between the Republic of Merovidea and the Federation of Brezania
(collectively, ‘the parties’), and in accordance with Article 40 1, Para 1 of the ICJ Statute, the
Parties hereby submit to this Court the dispute regarding the differences between the parties
concerning the legality of defence of necessity in interlinking of rivers and other issues. In
accordance with Article 362, Para 1 of the Statute, the Court has jurisdiction to decide all
matters referred to it for decision. Both parties shall accept the Court’s decision as final and
binding and execute it in good faith.
1
Cases are brought before the Court, as the case may be, either by the notification of the special agreement or
by a written application addressed to the Registrar. In either case the subject of the dispute and the parties shall
be indicated.
2
The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided
for in the Charter of the United Nations or in treaties and conventions in force.

VI
STATEMENT OF FACTS
BACKGROUND OF MEROVIDEA AND BREZANIA

The Republic of Merovidea is a democracy and a developed nation. In the year 1991,
Merovidea became the first developed nation in the world to adopt an environment based
economy.
Federation of Brezania is formed of five sovereign states essentially run by five giant
corporations. Brezania is a developing nation and follows a policy of absolute economic
liberalization where the federal government was responsible only for international relations
and defence. Both countries are neighbouring states that occupy the North Amber Sub-
Continent. The North Amber Sub-Continent is characterized by rich natural resources and is
surrounded by the Amberosia Ocean. Both countries share Fountain river system which is
source of water in North Amber Subcontinent. The countries also share the Yak Wetlands
which was recognized as a Ramsar site in the year 2014.
TREATY OF EQUITY AND UBA AGREEMENT
Both nations entered into a treaty “Treaty of Equity” and agreed to share water of the rivers
of the Fountain river system in an equitable manner. In August 1991 this treaty was formally
registered with the United Nations. During the years 1996-1999 Brezania witnessed frequent
devastating floods due to which more than three thousand lives were lost and more than ten
thousand people were displaced. Economic loss was around $100 billion. Following which
Brezania announced its plan to interlink the rivers to mitigate floods. The link decreased
water supply to Merovidea.
In 2002 at City of Uba, both nations had arrived at an understanding according to which
Brezania agreed to carry out an Environmental Impact Assessment of the entire project and
share its report with Merovidea and details about dams being built and quality of water being
released into Merovidea on a monthly basis. Both nations agreed to constitute a joint
commission for this purpose.
ENVIRONMENTAL POLLUTION
In 2008, A BBC report of Merovidea highlighted that how north-western province of
Merovidea was water deprived for many years. Every summer the Zastu River would dry up
on the Merovidean side because of dams built by Brezania. Researchers discovered elevated
levels of mercury, fluorine and selenium in the waters of Niramastu. The report concluded
that Brezanian metallurgical industry, were contributing to mercury poisoning of the

VII
Niramastu. Brezanian research agencies, could not independently verify the link between
mercury poisoning and their industries.
ASSETS OF CENTRAL BANK OF BREZANIA
In August 2013, Merovedian Superior Court while acting on a writ petition filed by a
citizen’s group “Minamata Sufferers” attached the assets of Central Bank of Brezania located
in Merovidea as a security against economic reparations.
TRADE DISPUTE
2016, Merovidea revoked MFN status given to Brezania and put strict import controls over
all imports coming from Brezania and introduced a green cess @12% above all other taxes
and duties on account of environmental damage being sustained by Merovidea.
NUCLEAR TEST
In April 2017, Merovidea conducted a series of contrived nuclear tests within 20km of its
border with Brezania. On 1st May 2017, IAEA conducted a research on the after-effects of
these nuclear tests and concluded that the tests have caused certain irreversible damage to the
ecology of the area and presence of low-grade radiation was also found in the adjoining areas
of Brezania including the Yak wetlands.
CREEK OF TENLING
The Creek of Tenling is one of the largest fishing grounds in North Amber Sub-Continent.
Fishermen from both the nations have been amicably fishing in the creek since ages. The
Creek separates Merovidea from Brezania at the latter’s southern border and opens up into
the Amberosia Ocean. In 2003, Brezania permitted the exploration and exploitation of these
reserves of Shale gas and Hydrocarbons in the Creek of Tenling. This move was vehemently
opposed by Merovidea, which claimed that the entire Creek belonged to Merovidea relying
on certain historical documents and maps from 13th century. And Merovidea rejected
Brezania’s offer to divide the creek mid-channel.
EPILOGUE
Relations between both the countries nosedived and the countries mobilized their troops at
the border. Following which major powers of the world intervened and mediated between
Brezania and Merovidea and was successful in encouraging them to refer their dispute to ICJ.

VIII
STATEMENT OF ISSUES
ISSUE I:
WHETHER BREZANIA HAS VIOLATED THE “TREATY OF EQUITY” AND THE
“UBA AGREEMENT” AND IS IT ENTITLED TO THE DEFENCE OF NECESSITY
FOR INTERLINKING THE RIVERS AND CONSTRUCTING DAMS FOR
MITIGATING FLOODS.
ISSUE II:
WHETHER BREZANIA IS RESPONSIBLE FOR ENVIRONMENTAL DAMAGE
SUSTAINED BY MEROVIDEA AND CAN IT BE HELD LIABLE FOR THE
ACTIONS OF ITS CORPORATIONS.
ISSUE III:
WHETHER MEROVIDEA HAS A RIGHT TO SUBJECT THE ASSETS OF
CENTRAL BANK OF BREZANIA.
ISSUE IV:
WHETHER MEROVIDEA HAS A RIGHT TO PUT STRICT IMPORT CONTROLS
ON BREZANIAN BEING A MEMBER OF WTO.
ISSUE V:
WHETHER MEROVIDEA HAS VIOLATED PRINCIPLES OF INTERNATIONAL
LAW BY CONDUCTING NUCLEAR TESTS CLOSE TO ITS BORDER WITH
BREZANIA.
ISSUE VI:
WHETHER MEROVIDEA HAS A SOLE RIGHT OVER THE CREEK OF
TENLING.

IX
LEGAL PLEADINGS
I. BREZANIA HAS VIOLATED THE “TREATY OF EQUITY” AND “UBA

AGREEMENT” AND BY DOING THIS BREZANIA HAS VIOLATED
THE RIGHT TO WATER OF MEROVIDEAN PEOPLE.
International Obligations may arise for a State by a treaty and by a rule of

customary international law or by a treaty and a unilateral act. 3 Brezania has failed in
honoring its International obligations through its wrongful acts which has led to deprivation
of the right to water of Merovidean people, Brezania has also violated two bilateral
agreements namely “Treaty of Equity” and “Uba Agreement”, further Brezania has also
violated certain Multi-Lateral treaties signed for protection of water and its equitable sharing
by both the parties.
1. Brezania has violated right to water of Merovidean people.
Brezania through its act has violated the right of water of Merovidean people as
there is a extensive reduction in the supply of water from all the three main rivers namely
Zastu-Ayastu-Niramastu by the interlinking, further the concentration of the mercury has
increased over the period of time leading to an increase the number of cases of people
suffering with the disease named Minamata which rose from 300 in 2010 to 7000 in 2013 and
25000 in 2015.4
A. Brezania has violated bilateral treaties signed between Merovidea and

Brezania.
i. Brezania has violated the “Treaty of Equity”
Brezania has violated the bilateral treaty named “Treaty of

Equity”. Treaty of Equity was entered by both the nations on 5th June 1991 aiming an
equitable distribution of water.5 Firstly, Brezania has violated Article 26 of the Treaty which
provided sharing of water of the Fountain river system for various purposes by the parties
without polluting its water but Brezania in the instant case has violated it through the disposal
3
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. Unites States of America), Merits,
Judgment, 1986 I.C.J. 14, ¶ 177 (June 27) [hereinafter Nicaragua]; North Sea Continental Shelf Cases,
Judgment, 1969 I.C.J. 3, at 38–39, ¶ 63 (Feb. 20) [hereinafter North Sea Continental Shelf].
4
Compromis ¶17.
5
Compromis ¶5.
6
Treaty of Equity, 1991.

1
of Mercury7 in the river Niramastu, which is one of the most important sources of fresh water
for Merovidea8.
Secondly, Brezania has also violated provisions of Article 49 and
510 of the Treaty which provided equitable sharing of water and preservation of water sharing
by both the parities but Brezania by interlinking of river deprived Merovidean people of their
right to water. This was further highlighted in the BBC report 11 in which it was stated that
how north-western province of Merovidea was water deprived for many years and how the
Zastu River which was another source of fresh water in Merovidea would dry up every
summer because of the interlinking.12
ii. Brezania has violated the “Uba Agreement”
Uba agreement was a bilateral summit held at City of Uba,

Brezania in 2002, in order to provide the report of interlinking of the Fountain river system,
the agreement provided Brezania to carry out an Environment Impact Assessment of the
entire project and to provide Merovidea the details about dams being built and the quality of
water being released on a monthly basis. Lastly a joint commission was to be formed for this
purpose.13
In the Instant case Brezania has also violated the provisions that
were laid in the Uba Agreement. Firstly, the understanding regarding the meeting of joint
commission that was agreed by both the parties in the Uba agreement were being conducted
at a very slow pace and the joint commission had only met thrice in 7 years this unilateral act
of Brezania was also criticized by Merovidea even the Prime Minister of Merovidea
reminded her counterpart regarding their conduct.14
Secondly, the first Environmental Impact Assessment Report of
the project was published in the year 2011 after 9 years of the signing agreement and the
report was lacking in considering of some important parameters.15
B. Brezania has violated Multilateral Treaties and Conventions.
7
Compromis ¶12.
8
Compromis ¶1.
9
10
Ibid.
11
Compromis ¶12.
12
Compromis ¶1.
13
Compromis ¶9.
14
Compromis ¶14.
15
Compromis ¶16.

2
Brezania has violated other water sharing treaties to which both Brezania and
Merovidea were parties.
i. Convention on the Protection and Use of Trans-boundary

watercourses and International Lakes.
In the instant case Brezania has violated the provisions of the

Convention on Protection and Use of Trans-boundary watercourses and International Lakes16
as under this Convention, all parties must take all appropriate measures to prevent, control
and reduce any significant adverse effect on the environment resulting from a change in the
conditions of Transboundary waters caused by a human activity. Such effects on the
environment include effects on human health and safety, flora, fauna, soil, air, water, climate,
landscape and also effects on the cultural heritage.17
Firstly, Brezania has violated Annexure III (c) of the convention
which guides a country for developing water quality (raw water for drinking-water purposes,
irrigation, etc.); Secondly, Brezania has violated provisions of Article 2 (2) (a) and 2 (2) (b)
of the convention which directs a country to take appropriate measures for protection and
equitable distribution of Transboundary water courses which in the instant case was not
followed by Brezania.
ii. Convention on the law of Non Navigational Use of Water

Courses.
Brezania in the instant case was also a party to the Convention

on the law of Non Navigational Use of Water courses18 which aimed at ensuring the
utilization, development, conservation, management and protection of international
watercourses hence considering the facts of the instant case it is clear that Brezania has also
violated the above convention.
Firstly, Article 1 of the Convention deals with the measures of
protection, preservation and management related to the uses of those watercourses and their
waters. Secondly, Article 5 of the Convention refers to the Equitable and Reasonable
utilization of watercourses in such a manner, taking into account the interest of the Riparian
16
Convention on the Protection and Use of Trans-Boundary Watercourses and International Lakes, 1936 UNTS
269; 31 ILM 1312 (1992).
17
MALCOLM N. SHAW, INTERNATIONAL LAW 884 (6th Ed, 2008).
18
Convention on the law of Non Navigational Use of Water Courses, 199736 ILM 700 (1997); G.A. Res.
51/229, U.N. GAOR, 51st Sess., 99th mtg., UN Doc A/RES/51/229 (1997).

3
States (water sharing states) and duly Corporate in the maintenance of the watercourse.
Thirdly, it obliges the state to take all appropriate measures to prevent causing of significant
harm to the other watercourse states.19 Therefore, the provisions of this convention were not
followed by Brezania.
2. The Interlinking of River was not a necessity.
The defence of necessity invoked by Brezania is no valid in the instant case.

Article 2520 of the ASR provides the condition in which defence of necessity can be
claimed.21 But in the instant case the defence of necessity that is being claimed by Brezania is
not maintainable as it does not fulfill the required conditions that are required to entail the
defence of necessity,
Firstly, Article 25 of the ASR specifies that the defence of necessity can be
invoked when it is the only mean to safeguard an essential interest but “UN Guidelines for
Reducing Flood Losses”22 guides other measures like Using Supportive Technologies23,
Building of reservoirs24, Techniques like Flood Plan Management25 etc. That could have
been exercised instead of the interlinking of the rivers hence would have caused no shortage
of water in Merovidea.
Secondly, Article 25 also provides that the act of Necessity should not cause any
damage to any other state26 but in the instant case it is not so the act of Brezania that has
caused a violation of “Right to Water” of Merovidean people.
II. BREZANIA IS RESPONSIBLE FOR ENVIRONMENTAL DAMAGE

SUSTAINED BY MEROVIDEA AND THE LIABILITY OF BREZANIA IS
CO-EXTENSIVE WITH THE CORPORATIONS.
19
Art. 7, Convention on the law of Non Navigational Use of Water Courses, 199736 ILM 700 (1997); G.A. Res.
20
Article 25, I.L.C., Articles on the Responsibility of States for Int‘lly Wrongful Acts, GA U.N. Doc. A/56/10
(2001). [hereinafter ASR ]
21
Article12, ¶6, Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries,
[2001] 2 Y.B. Int’l L. Comm’n 31.
22
United Nation, Guidelines for Reducing Flood Losses, 2002,
https://www.unisdr.org/we/inform/publications/558.
23
Ibid, at 30.
24
Ibid, at 31.
25
Ibid.
26
Art. 25, ASR.

4
The Brezanian corporations have caused an irreversible environmental damage to

Merovidea hence for the act of the Corporation the state of Brezania should be held
responsible therefore Brezania should provide reparations for the damage caused.
1. The acts of the Brezanian corporations are Attributable to the State
Article 5 of the ASR deals with “Conduct of an entity” exercising elements of

governmental authority.27 Article 5 deals with the attribution to the State of conduct of bodies
which are not State organs in the sense of article 428, but which are nonetheless authorized to
exercise governmental authority29. The generic term “entity” reflects the wide variety of
bodies which, though not organs, may be empowered by the law of a State to exercise
elements of governmental authority.30 The formulation of article 5 clearly limits it to entities
which are empowered by internal law to exercise governmental authority.31
In the instant case the five giant corporations are running the five different states
of the federation of Brezania, hence they are authorized to exercise governmental authority.
Thereby their conduct is attributable to state. In general, states must ensure that their
international obligations are respected on their territory.32
Even where an activity causing environmental harm is conducted by private

parties, as in the Trail Smelter or Pulp Mills Cases33, the issue remains one of the state’s
responsibilities for prevention, cooperation, and notification, which cannot be avoided by
surrendering the activity itself into private hands.34 It is irrelevant that the state itself does not
own or operate the plant or industry in question. As the Court said in Fadeyeva,35 the state’s
responsibility in environmental cases ‘may arise from a failure to regulate private industry’.
27
Art. 5, ASR.
28
Art. 4, ASR.
29
Art. 5, ¶1, Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries,
[2001] 2 Y.B. Int’l L. Comm’n 31.
30
Art. 5, ¶2, Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries,
[2001] 2 Y.B. Int’l L. Comm’n 31..
31
Ibid.
32
MALCOLM N. SHAW, INTERNATIONAL Law 859 (6th Ed., 2008).
33
Trail Smelter Arbitration, (U.S.A v. Canada), 35 Am. J. Int'l L. 684 (1941) [Hereinafter Trail Smelter
Arbitration Case].
34
Tehran Hostages Case, ICJ Reports (1980) 3; Bosnian Genocide Case [2007] ICJ Rep 390–415.
35
Fadeyeva v Russian Federation, App No 55723/00, ECHR 2005-IV, [2005] ECHR 376, (2007) 45 EHRR 10,
IHRL 3161 (ECHR 2005). ¶89.

5
In Oneryildiz36 it was emphasized by the court that ‘The positive obligation to

take all appropriate steps to safeguard life for the purposes of Article 2 entails above all a
primary duty on the State to put in place a legislative and administrative framework designed
to provide effective deterrence against threats to the right to life’.37 States have a positive
duty to take appropriate measures to prevent industrial pollution or other forms of
environmental nuisance from seriously interfering with health or the enjoyment of private life
or property.38 Hence in the instant case Brezania would be liable for the acts of its
corporations.
2. Brezania has caused irreversible environmental damage to Merovidea
Brezania has caused an irreversible environmental damage to Merovidea and has

violated the principle of International law by violating Treaties, Conventions and General
Principles of International law.
A. Brezania has violated Treaties and Conventions of International Law
Brezania had ratified various multilateral treaties on environment protection and

has certain obligations towards environment. Corporations of Brezania have violated these
obligations by their hazardous means of production which has caused irreversible
environmental and huge amount of economic damage to Merovidea. Firstly, Brezania
through its act has violated Article 2 & 3 of the Treaty of Equity39 signed by both the Parties.
Secondly, Provisions of the Convention of protection and conservation of
Transboundary lakes and watercourses40 has been violated, Article 2 of the convention which
deals with the General Provisions of the treaty has not been followed, further Provisions of
Article 3(1) has not been taken into consideration, also Annex III of the convention which
lays guidelines for developing water-quality has not been followed by Brezania.
Thirdly, another environment protection Convention viz. UN Convention to
combat desertification41 has been violated by Brezania as the General Obligations under
article 4 of the convention has not been taken into consideration.
36
Öneryıldız v Turkey, Merits and just satisfaction, App no 48939/99, ECHR 2004-XII, (2005) 41 EHRR 20,
[2004] ECHR 657, 18 BHRC 145, IHRL 3582 (ECHR 2004).
37
Ibid, ¶89.
38
Lopez Ostra v Spain (1994) 20 EHRR 277; Guerra v Italy (1998) 26 EHRR 357; Fadeyeva v Russia [2005]
ECHR 376; Oneryildiz v Turkey [2004] ECHR 657; Taskin v Turkey [2006] 42 EHRR 50.
39
40
41
United Nations Convention to Combat Desertification, 1954 UNTS 3; 33 ILM 1328 (1994).

6
Fourthly, Brezania has violated the principle of the Convention on Non-

Navigational use of watercourses,42 Article 5 provides with the general guidelines which are
not followed in the instant case further Article 7 of the Convention provides obligation not to
cause a significant harm but it has also been violated.
Lastly, Article 192 of the UN Convention on Law of Seas 43 obligates state to
protect and preserve the marine environment which in the instant case has not been followed,
by Brezania.
B. Brezania has violated the General Principles of International Law
The general principles of international law establish basic standard of behavior for
international society.44 Brezania has violated various general principles owing to its wrongful
conduct.
i. Precautionary Principle
This precautionary principle is a tenant of customary

international law.45 The principle, as memorialized in Principle 15 of the Rio Declaration,
requires a party taking an action which may potentially have adverse environmental
consequences to show that its activity would not cause significant harm.46 Moreover, when
there are threats 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.”47 In this case the mercury poisoning that was witnessed by Niramastu was a
serious irreversible damage hence the defences stated above cannot be exercised by Brezania.
Several international tribunals have also recognized the precautionary principle as customary
international law.48 In the instant case, the principle has been violated by Brezania.
ii. Transboundary Harm
42
43
United Nations Convention on the Law of the Sea, 10th December, 1982, 1833 UNTS.
44
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 18 (Oxford 6th ed. 2004).
45
PATRICIA BIRNIE, ALAN BOYLE, CATHERINE REDGEWELL, INTERNATIONAL LAW AND THE ENVIRONMENT,
159-160 (Oxford University Press, 3rd ed., 2009).
46
United Nations Conference on Environment and Development, June 3-14, 1992, Declaration on Environment
and Development, prin. 15, 31 I.L.M. 874.
47
Ibid.
48
Gabcikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7 (Sept. 25); Nuclear Tests (Aus. v. Fr.), 1974
I.C.J. 253 (Dec. 20); Southern Bluefin Tuna (Austl. & N.Z. v. Japan), 39 I.L.M. 1359 (Arb. Trib. constituted
under Annex VII of the U.N. Conv. on the Law of the Sea 2000); Mox Plant (Ir. v. U.K.), 42 I.L.M. 1187 (Perm.
Ct. of Arb. 2003).

7
Transboundary harm is recognized under Customary

International Law.49 It was first observed in the Trail Smelter Arbitration50. For
Transboundary harm to be significant;51 there must be a real detrimental effect on matters
such as human health, property or environment in other States52. In the instant case the
reports and the researches have clearly shown the presence of Mercury in the Niramastu
River53 further Independent research groups has also assessed the loss of lives that was due to
direct or indirect environmental impacts.54 In the instant case, the principle has been violated
by Brezania.
iii. Principle of good neighborliness
In accordance with the principle of sic utero tuo, ut alienum

non laedas it is a well established custom of international environmental law that no state has
the right to use or permit the use of its territory in such a manner as to cause injury to the
territory of another or the properties or person therein. 55 Every state is thus under an
obligation not to allow knowingly its territory to be used for acts contrary to the rights of
other States56. This principle has further been reaffirmed in various judicial decisions.57 In
this case the above principle is completely neglected by Brezania. Therefore, Brezania should
be held liable for the same.
iv. Due-Diligence
It is the primary duty of the states to try to prevent harmful

activities within their States and as far as the obligation to prevent is concerned there is no
49
Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 226, 241-42.
50
Trail Smelter Arbitration, (U.S.A v. Canada), 35 Am. J. Int'l L. 684 (1941).
51
Report of the International Law Commission on the Work of its Fifty-Third Session (2001), 150-51, U.N.
Doc.A/56/10 [ILC Report]; Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22.
52
TINKER, STATE RESPONSIBILITY AND THE PRECAUTIONARY PRINCIPLE, IN THE PRECAUTIONARY PRINCIPLE AND
INTERNATIONAL LAW: THE CHALLENGE OF IMPLEMENTATION 53 (1996).
53
Compromis ¶1.
54
Compromis ¶17.
55
PATRICIA BIRNIE AND ALAN BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT 109 (Oxford University
Press, 2nd ed, 2004); Trail Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941); International
Commission on the River Oder Case, (Denmark, Czechoslovakia, Fr, Ger, U.K, Swe v. Pol) PCIJ, Series A, No.
23 (1959); Island of Palmas Arbitration,(Neth v. US) 2 R. Int‟l. Arb. Awards, 829, 831 (1928); MALCOLM N
SHAW, INTERNATIONAL LAW 760 (CAMBRIDGE UNIVERSITY PRESS 5th ed.., 2003).
56
Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21; Lac Lanoux Arbitration (France v. Spain) 24 I.L.R
(1957).
57
Trail Smelter, (U.S.A v. Canada), 35 Am. J. Int'l L. 684 (1941); Lac Lanoux(France. v. Spain), 12 R.I.A.A.
281 (1957) ; Handelskwekerij G.J. Bier B.V. v. Mines de Potasse d'Alsace S.A., 1976 E.C.R. 1735 (Neth.); Case
Concerning the Barcelona Traction, Light and Power Company Limited, (Belgium. v. Spain), 1970 I.C.J. 3, 6
(Feb. 5); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J 226 (8 th July);
Gabcikovo-Nagymaros Project case, (Hungary v. Slovakia) 1997 I.C.J 7 (Sept.25).

8
doubt that it is conditioned by due diligence. It is well established that the obligation of a
State to prevent Transboundary harm is one of “due diligence” or “best effort” obligation;
which requires all States to have taken all reasonable or necessary measures to prevent a
given event from occurring.58 Due diligence is the standard basis for environmental
protection and is also expounded in the widely supported ILC Draft Articles.59 In fact, the
obligation to observe due diligence in preventing pollution is absolute, and for the breach, the
states are liable irrespective of any fault.60
In the instant case it was on the state of Brezania to exercise
Due Diligence on the conduct of the state corporations to protect Transboundary harm and
therefore, in this case Brezania should be held liable for the same.
3. Brezania is liable to make Reparations to Merovidea
Where the responsibility of the state is established, an obligation arises first to

discontinue the wrongful conduct, second to offer guarantees of non-repetition, and the third
to make full reparation for the injury caused.61 Draft Article62 on state responsibility defines
full reparation as restitution, compensation and satisfaction, either singly or in combination.
And restitution as to re-establish the situation which existed before the wrongful act was
committed, that is, to establish the status quo ante.
In the instant case, Brezania has caused an irreversible environmental and economic
damage to Merovidea by its wrongful acts which later transformed into Hazardous act
causing environmental damage. The adverse effects of the project were evident by May,
2012. As the volume of water in Niramastu decreased the concentration of mercury
gradually increased which resulted in increased number of people diagnosed Minamata to
25,000 in 2015. Further it was also assessed by an independent group that 10,000 lives were
lost. Economic impact was computed to be in excess of $170 bn annually. 63 Hence in the
instant case Merovidea seeks Reparation64 which states that a state is responsible to make
58
Trail Smelter Arbitration, (U.S.A. v. Canada), 35 Am. J. Int'l L. 684 (1941).
59
I.L.C Draft Articles on Transboundary Harm, U.N.Doc.A/CN.4/318/Add.5-7 at 392.
60
MALCOLM N. SHAW, INTERNATIONAL LAW, 762 (6TH ed., 2008).
61
Arts. 30-31, 35-37, ILC Draft Articles on State Responsibility; P ATRICIA BIRNIE, ALAN BOYLE, CATHERINE
REDGEWELL, INTERNATIONAL LAW AND THE ENVIRONMENT, 226 (Oxford University Press, 3rd ed., 2009).
62
Article 34, ASR.
63
Compromis ¶17.
64
Art. 31, ASR.

9
full reparation for the injury caused by the internationally wrongful act. Further Merovidea
also seeks cessation65 on the activities of Brezanian corporations.
III. MEROVIDEA HAS RIGHT TO SUBJECT ASSETS OF CENTRAL BANK OF

BREZANIA TO ENFORCE PROCEEDINGS.
1. Merovidea has right to initiate judicial proceedings against the Central Bank
of Brezania.
In the instant case the bank is situated in the territory of Marovidea and comes under
jurisdiction of the Merovidean court. In case of Verlinden v. Central Bank of Nigeria66 the
Supreme Court of US permitted to initiate proceedings against central bank of Nigeria.
Similar was done in case of International Shoe Co. v. Washington67. So in the current case
by considering these decisions it is very clear that Merovidea can initiate judicial proceedings
against the Central Bank of Brezania.
2. There is no expropriation by Merovidea.
Attaching the assets of the bank is not an expropriation in violation of any treaty or
customary international law. No treaty, agreement, or practice suggests a definition of the
aforementioned “expropriation, nationalization” or equivalent neither measures, nor is there
any indication of a source from which a definition should be sought. No generally-accepted
ordinary meaning of “expropriation” exists. It is therefore appropriate to define the term as it
is generally defined under customary international law.
Under customary international law, expropriation need not be a direct taking—indirect
interference may be sufficient. The International Court of Justice addressed this issue in
Elettronica Sicula S.p.A., in which the United States argued expropriation includes “not
merely outright expropriation of property, but also unreasonable interference with its use,
enjoyment or disposal.”68
To properly examine a claim of expropriation requires a tribunal weigh “the real
interests involved and the purpose and effect of the government measure.”69 Here the court
65
Art. 30, ASR.
66
Verlinden v. Central Bank of Nigeria 79 ILR, p. 548.
67
International Shoe Co. v. Washington 326 US 310 (1945).
68
Case Concerning Elettronica Sicula S.p.A. (ELSI) (U.S. v. It.), 1989 I.C.J. 15, ¶ 114 (July 20); accord
Metalclad Corp. v. United Mexican States, ICSID Case No. ARB(AF)/97/1, Award (Aug. 30, 2000), 16 ICSID
REV. FOREIGN INVESTMENT L.J. 168 (2001); Rudolf Dolzer, Indirect Expropriations: New
Developments?, 11 N.Y.U. ENVTL. L.J. 64, 65 (2002).
69
54 S.D. Myers, Inc. v. Canada, First Partial Award (Nov. 13, 2000), 40 I.L.M. 1408, 1440 (2001).

10
just attached the assets of bank as a security but not hampered the functioning of the bank as
“In August 2013, Merovedian Superior Court while acting on a writ petition filed by a
citizen’s group “Minamata Sufferers” attached the assets of Central Bank of Brezania
located in Merovidea as a security against economic reparations.”70 So here it is clear that it
was not expropriation against the bank.
3. Merovidea can subject the assets under countermeasure
The wrongfulness of an act of a State not in conformity with an international

obligation towards another State is precluded if and to the extent that the act constitutes a
countermeasure taken against the latter State in accordance with chapter II of Part Three.71
In the Gabˇcíkovo-Nagymaros Project case72, ICJ clearly accepted that

countermeasures might justify otherwise unlawful conduct “taken in response to a previous
international wrongful act of another State and … directed against that State.”73 Similar
recognition of the legitimacy of measures of this kind in certain cases can be found in arbitral
decisions, in particular the “Naulilaa”74 and Air Service Agreement75 awards. In the
Gabˇcíkovo-Nagymaros Project case when it stressed that the measure in question must be
“directed against” the responsible State.76 Essentials of defense of countermeasure are
fulfilled in the instant case. It includes in particular the requirement of proportionality, the
temporary or reversible character of countermeasures and the status of certain fundamental
obligations which may not be subject to countermeasures.77
Here in the case even after repeated warnings and requests Brezania government
did not check its pollution that was creating a lot of economic loss as well as loss of human
lives. Independent research groups assessed that at least 10,000 lives were annually lost due
to direct or indirect environmental impact in Merovidea. Economic impact was computed to
be in excess of $170 bn annually.78
70
Compromis, ¶18.
71
Art. 22, ASR.
72
Gabčikovo-Nagymaros Project (Hungary v. Slovakia) Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7.
73
Ibid , ¶88.
74
Portuguese Colonies case (Naulilaa incident) (Portugal v. Germany), UNRIAA, vol. II (Sales No. 1949.V.1),
p. 1011, at pp. 1025–1026 (1928).
75
AIR SERVICES AGREEMENT CASE (France v. United States) (1978) Arbitral Tribunal: Riphagen,
President; Ehrlich, Reuter. 18 R.I.A.A. 416.
76
Gabčikovo-Nagymaros Project, (Hungary v Slovakia), Judgment, Merits, ICJ GL No 92, [1997] ICJ Rep 7.
77
Art. 22, ASR.
78
Compromis ¶17.

11
Merovidea tried to resist practicing countermeasure by giving repeated warnings

to Brezania. In the instant case loss incurred by Merovidea due to acts of Brezania is $170 bn
annually which is very large amount. So the first requirement of proportionality in this case
is fulfilled. Now the Merovidea just attached the assets of the bank as security to the loss
incurred due to the acts of Brezania. Merovedian Superior Court attached the assets of
Central Bank of Brezania located in Merovidea as a security against economic reparations.79
So it is clear that the act is reversible in nature as attachment is temporary in nature and will
continue only till the time Brezania would pay for the losses. So the act done by Merovidea
was not appropriation and it can be justified by the defence of counter-measure.
IV. MEROVIDEA DID NOT VIOLATE INTERNATIONAL LAW BY

IMPOSING TRADE RESTRICTIONS ON BREZANIA
Considering Brezania’s continuous breach of its international obligations,

Merovidea’s restriction on the import from Brezania to its territory is consistent with
provisions of WTO and customary International Law. While the Article 1 of GATT seeks to
grant MFN status to all the contracting parties, nevertheless Article XX admits exceptions.
1. The trade restriction complied with Article XX of GATT80.
Trade restrictions may be justified under Article XX of GATT provided they are
“(b) necessary to protect human, animal or plant life or health; (g) relating to the conservation
of exhaustible natural resources.”
A. The Restrictions are necessary to protect human health.
A measure protecting animal life or health must seek to protect humans81 from a
risk to their life or health.82 In this case, the restrictions are imposed on Brezanian industries
to protect Merovidean citizens from harm caused by industries. The Brezanian industries are
releasing mercury which is causing Minamata disease. Independent research groups assessed
that at least 10,000 lives were annually lost due to direct or indirect environmental impact in
Merovidea.83 Huge amount of loss of life was the reason for trade restrictions imposed on
79
Compromis ¶18.
80
General Agreement on Tariffs and Trade, Oct. 30, 1947, 55 U.N.T.S. 194.[GATT]
81
Committee on Trade and Environment, Note by the Secretariat: Gatt/WTO Dispute Settlement Practice
Relating to GATT Article XX, Paragraphs (B), (D) and (G), ¶23, WT/CTE/W/203 (Mar. 8, 2002).
82
Panel Report, European Communities–Measures Affecting Asbestos and Asbestos–Containing Products,
¶8.171, WT/DS135/R (Sept. 18, 2000). [‘Asbestos Case’].
83
Compromis ¶17.

12
Brezania. Merovidean Foreign Minister took this matter at once to Brezanian counterpart.
Brezanian PM promised but still the level of mercury remained at threshold levels.84
B. The Restrictions are necessary for conservation of natural resources.
Merovidea has imposed restrictions on trade for conservation of the exhaustible

natural resources which are exploited by Brezania while adopting hazardous methods of
production. The first issue that must be addressed under Article XX (g) is whether the
particular trade measure85 concerns the conservation of exhaustible natural resources.86 In this
case, the trade measure has been adopted with regard to conserve water from pollution which
is an exhaustible resource. The second element is that it must be ‘primarily aimed at’
conservation.87 In this case, the restrictions are primarily aimed to conserve natural resources.
A third requirement of Article XX (g) is that the measure in question must be ‘made eﬀective
in conjunction with restrictions on domestic production or consumption’. In this case,
Merovidea is a first developed nation to adopt environment based economy, all vocations
which are considered to be even slightly harmful to environment are banned in Merovidea
88
and the public is enjoined to adopt robust sustainable living measures in their way of life.
Thereby, all the requirements of the article XX (g) are fulfilled by Merovidea in exercising
trade restrictions upon Brezania which are imposed with an objective to conserve natural
resources in the territory of Merovidea.
C. The trade restrictions complied with the chapeau under GATT.
While exercising the exceptions under Article XX, it is necessary to fulfill the
requirements in the chapeau or introductory clause. The chapeau of Article XX reads as,
“Subject to the requirement that such measures are not applied in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the
same conditions prevail, or a disguised restriction on international trade”. In This case, the
trade measure is not arbitrary because it is enacted to protect the environment and to deter
Brezanian industries from causing pollution. Also, restriction is not disguised in nature as the
84
Compromis ¶13.
85
By ‘measure’ is meant the law or rule challenged as inconsistent with WTO/GATT norms : US—Standards
for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS2/
AB/R (1996); 35 ILM (1996) 274 [‘US Gasoline Standards Case’].
86
US—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Panel, WT/DS58/R (1998);
Report of the Appellate Body, WT/DS58/AB/R (1998) 68–9 [‘Shrimp-Turtle Case’].
87
US—Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS2/
AB/R (1996); 35 ILM (1996) 274 [‘US Gasoline Standards Case’].
88
Compromis ¶3.

13
country explicitly announced the restrictions .In US–Canadian Tuna, the Panel held that a
measure is not a disguised restriction if it is publicly announced as such.89 Thus, the
restrictions are duly complied with the requirement under the ‘GATT’.
2. The trade restriction is valid countermeasure in customary international law.
For the countermeasure to be valid, first, it must be in response to an

internationally wrongful act; second, the injured State must have called upon the responsible
State to discontinue its internationally wrongful act; third, the countermeasure must be
proportional; fourth, it must be reversible; and fifth, it must be temporary in character.90
Merovidea complied with these requirements.
A. The Countermeasure is taken in response to a breach attributable to Brezania.
Under the first condition, Article 49(1) of ASR requires that the countermeasure be
(1) directed against a State that committed an internationally wrongful act in order (2) to
induce that State’s compliance with its international obligations.91 In this case, the Brezania
committed a wrongful act by breaching bilateral and multilateral treaties. Countermeasure is
directed to induce compliance i.e. to restrain environmental damage.
B. Merovidea called upon Brezania to discontinue its internationally wrongful

act and countermeasure must be proportional to and necessary for the interest
of health of Merovidean people.
Before resorting to countermeasures, the injured State must call on the responsible
State to cease its violations.92 In Gabcikovo, this requirement was satisfied when
Czechoslovakia informed Hungary that it would impose measures if Hungary continues to
violate International Law.93 In this case, Merovidea asked Brezania to stop pollution but still
the level remained at threshold. Article 51 of ASR requires that countermeasures be
proportional in character.94 Proportionality must be assessed based on (1) the interest
89
Report of the Panel, United States–Prohibition of Imports of Tuna and Tuna Products from Canada, ¶4.8,
L/5198–29S/91 (Dec. 22, 1981). [‘Tuna Case’].
90
Articles on the Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, U.N. GAOR, 56 th
Sess., Supp. No. 49, U.N. Doc. A/RES/56/83, arts. 49–53 (Dec.12, 2001) [ASR]; Gabcikovo-Nagymaros
(Hungary. v. Slovakia.), 1997 I.C.J. 7, 55–57.
91
Art. 49 (1), ASR.
92
Art. 52(1) (a). ASR.
93
Gabcikovo-Nagymaros, (Hungary v. Slovakia), 1997 I.C.J. at 56.
94
Art. 51, ASR.

14
protected by the rule violated; (2) the extent of injury and seriousness of breach; 95 and (3) the
necessity to induce the responsible State to comply with its obligations.96 In this case,
Merovidea’s countermeasure is proportional to breach by Brezania
C. The countermeasure is reversible and temporary.
The countermeasure must also be reversible: it must allow the imposing State to
resume performing its international obligation that was suspended due to the
countermeasure.97 Here, the countermeasure is reversible since the restrictions will be waived
when Brezania stops pollution. Following Article 49(2) of ASR,98 the countermeasure is
temporary as Merovidea will remove cess as and when Brezania stops pollution. Considering
the existence of the foregoing requisites required for a valid countermeasure, the trade
restriction on Brezania does not violate International Law.
V. MEROVIDEA DID NOT VIOLATE INTERNATIONAL LAW BY

CONDUCTING NUCLEAR TEST.
Merovidea has a right to conduct nuclear test in its territory. It is a sovereign nation
and it is not party to treaties prohibiting conduct of nuclear test. Also, conduct of nuclear test
is not prohibited in the customary international law.
1. Merovidea is not a party to treaty prohibiting nuclear test.
Article 34 of VCLT99 states that, “A treaty does not create either obligations or
rights for a third State without its consent.” It implies that when a party is not a signatory to a
treaty prohibiting ban on conduct of nuclear test as it is mentioned in CTBT (Comprehensive
Test Ban Treaty), the party cannot be bound to prohibit conduct of test on its soil. Moreover,
Article 38 Para 1 of ICJ Statute100 states that, “international conventions, whether general or
particular, establishing rules expressly recognized by the contesting states”. A party is only
bound by the conventions to which it has given express consent. In the Lotus Case101, the
court held, essentially, that a nation is legally permitted to take any action that is not strictly
proscribed under the rules of international law.
95
CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 296 (2012).
96
Ibid.
97
Art. 49(3), ASR.
98
Art. 49(2), ASR.
99
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679.
100
ICJ Statute, 3 Bevans 1179; 59 Stat. 1031; T.S. 993.
101
Lotus Case, (France. v. Turkey.), 1927 P.C.I.J. 5, 18 (Sept. 7).

15
In this case, Merovidea has not signed the treaties which prohibit nuclear test and
thus has a right to conduct nuclear tests in its boundary. CTBT remains unratified by China,
India, Israel, Iran, Pakistan, and the United States, moreover in 1998, both India and Pakistan
conducted nuclear tests.102At the same time the ICJ has held that the threat or use of nuclear
weapons is not per se unlawful under customary international law.103 It has been recognized
by the ICJ that mere conduct of a nuclear test is not unlawful. In the instant case, Merovidea
conducted nuclear test with due diligence and has not violated international obligation.
2. Prohibition on conduct of nuclear test is not customary in nature.
In the Nuclear Tests Case,104 the ICJ declined to decide whether atmospheric tests
carried out by France violated customary international law. Moreover, in Advisory Opinion
on Nuclear Weapons, the International Court did not find the threat or use of nuclear weapons
in all circumstances illegal.105 Regarding customary nature, the court was unable to find
an opinio juris (that is, legal consensus) that nuclear weapons are illegal to possess.
However, in practice, nuclear weapons have not been used in war since 1945 and there have
been numerous UN resolutions condemning their use. But there is no general consensus
regarding the same as various countries still in possession of nuclear weapons. The ICJ did
not find that these facts demonstrated a new and clear customary law absolutely forbidding
nuclear weapons.
Nothing in the Statute confers any binding force on IAEA health and safety
standards, or requires member states to comply with them.106 In the case of Chernobyl reactor
accident the court held that it does not, per se represent a violation of international law
without showing a failure of due diligence, nor does it imply that the actual use of nuclear
weapons is forbidden by international law.107In this case, Merovidea did not violate
international law as it did not failed in acting without due diligence.
102
Press, 2nd ed., 2004).
103
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226; De
Chazournes and Sands (eds), International Law, the ICJ and Nuclear Weapons; S. Mahmoudi.The International
Court of Justice and Nuclear Weapons, Nordic JIL 66 (1997) 77.
104
The Nuclear Test case (Australia v. France), 1974 I.C.J. 253 (Dec. 20).
105
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports (1996) 226.
106
PAUL C.SZASZ, The Law and Practices of the International Atomic Energy Agency 679. IAEA, VIENNA,
1970 STI/PUB/250.
107

16
3. Merovidea has a right to conduct nuclear test close to the international

border.
Every state has a right to sovereignty over its territory. Merovidea is a signatory to
The Convention on Nuclear Safety (1994)108, Protocol to Amend the 1963 Vienna
Convention109 on 1988, Civil Liability for Nuclear Damage and the Paris Convention110,
1997, Convention on Supplementary Compensation for Nuclear Damage111 (CSC).112 None
of these treaties gives neighboring states a veto, nor suggests that the siting of nuclear
installations near borders is impermissible or subject to any equitable balance of interests.113
The states are not debarred by international law from acquiring and using nuclear technology
simply because it poses a risk of injury to other states or the environment, nor are they
precluded from siting nuclear installations near borders.114 Each state is free to act within the
limits of its sovereignty’,115 and to act on its own assessment of the risk. In this case,
Merovidea has rightfully conducted nuclear test in the limits of its sovereignty and the
presence of law – grade radiation is merely incidental and not intentional.
VI. MEROVIDEA HAS SOLE RIGHT OVER CREEK OF TENLING AS PER

HISTORICAL EVIDENCE.
Merovidea has sole ownership over the creek of Tenling on the basis of historical
evidence and gratuitous agreement between the parties.
1. The claim of Merovidea is based on Historical and Legal Evidence.
In this case there is a right of the ownership of the creek is with Merovidea through
Historical Evidence. It is clear that Merovidea owns the creek with the help of map from 13th
century. It is clearly stated in the facts “in the 13th century, entire creek belonged to the
ruling clan of Merovidea and only fishing rights were shared as a gesture of magnanimity
with the tribes on the other side of the creek which forms part of the present-day
108
The Convention on Nuclear Safety, 1994, 33 ILM 1514 (1994).
109
Protocol to Amend the 1963 Vienna Convention, 1997.
110
Civil Liability for Nuclear Damage and the Paris Convention, 1988.
111
Convention on Supplementary Compensation for Nuclear Damage, 1997.
112
Compromis ¶17.
113
Peter Cameron et al. (eds) in Nuclear Energy After Chernobyl, Graham & Trotman Publishers 73 (1988).
114
115
The Nuclear Test case (Australia v. France), 1974 I.C.J. 253 (Dec. 20).

17
Brezania.”116 The facts clearly tell about the historical ownership and the rights of
Merovidea. Here the principle of estoppels also applies as the validity of map was not
considered till now. A claim of historic right is bolstered by the passage of time; when the
encroached state does not act to counter the claimant’s right, it is deemed to have acquiesced
in that right and is estopped from rejecting the title for lack of consent. 117 Similar was held in
case of Temple of Preah Vihar118, where estoppel was practiced for a map from 1908. So here
in the instant case the principle of estoppels is applicable for the from 13th century and
Merovidea has complete rights over the creek.
The court said that history is very important to reach a decision in the case of Minquiers and
Ecrehos case119. Historical claims are greatly strengthened by duration, by the existence over
a long period of time (preferably to the present day) of those features that form the basis of
the claim.120 Here the duration is around 8 centuries that is a very large duration as the map
presented dates to 13th century.
2. There is an agreement between Merovidea and tribes of Brezania region.
Here in the facts there is a gratuitous agreement between kingdom of Merovidea and
tribes of Brezania regarding the fishing rights of the creek. Only fishing rights were shared as
a gesture magnanimity with the tribes on the other side of creek which forms part of present
day Brezania.121 The tribes were only given the fishing rights of the creek which does not
mean transfer of ownership. Merovidea is ready to share the fishing rights even now.
This agreement clearly shows that ownership of the creek was undisputed and agreed
upon by both the parties in the past. The court also said similar in the Land and Maritime
Boundary case122. The court even said that Agreement between the parties is above all in case
of international territorial disputes in case of Sovereignty over Certain Frontier lands123.
116
Compromis ¶11.
117
O.W. Bowett, Estoppel Before International Tribunals and Its Relation to Acquiescence, 33 British Year
Book of International Law 198 (1957) ; YEHUDA Z. BLUM, HISTORIC TITLES IN INTERNATIONAL LAW 100 (Ed.
1, 1965).
118
Temple of Preah Vihear [Cambodia v Thailand], Merits, Judgment, [1962] ICJ Rep 6.
119
Minquiers and Ecrehos case (France v. United Kingdom) Judgment, Merits, [1953] ICJ Rep 47.
120
Professor Andrew F. Burghardt, The Bases of Territorial Claims, 63 Geographical Review 225 (1973).
121
Compromis ¶11.
122
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon and Equatorial Guinea
(intervening) v. Nigeria) Judgment, Merits, [2002] ICJ Rep 303.
123
Sovereignty over Certain Frontier Land, (Belgium v Netherlands), Merits, Judgment, (1959) ICJ Rep 209.

18
“Discussing postcolonial interstate territorial conflicts in sub Saharan and West Africa
In attempting to resolve these disputes, cross-claimants have relied on old royal documents,
decrees, and agreements as evidence to demonstrate the intention of the powers in dividing
their colonial territories.”124 The agreement between the paties was also used as ground in
case of Territorial Dispute (Libya/Chad)125.
3. There is no applicability of equidistance principle.
Merovidea is not a member of Geneva Convention on Continental shelf 1958, so the

principle of equidistance is not applicable on it. In case of North Sea Continental Shelf126 the
court concluded that the equidistance principle was not binding on Germany by way of treaty
or customary international law. In the case of the latter, the principle had not attained a
customary international law status at the time of the entry into force of the Geneva
Convention or thereafter. As such, the Court held that the use of the equidistance method is
not obligatory for the delimitation of the areas concerned in the present proceedings. 127 So the
decision of court in this case also shows that there is no customary international law that says
about dividing it on the basis of equidistance. So in the instant case as Merovidea has not
signed this convention so it is not bound the principle of equidistance mentioned in this
convention. Moreover it has also been held that the equidistance principle is not a part of
customary international law, so this principle holds no value in this case.
In any case if the court thinks otherwise then also mining of oil is not permissible as it
will create a lot of damage to the environment and will also cause environmental damage in
the territory of Merovidea. So in the interest of justice it is submitted that court shall see these
conditions and grant the ownership of creek to Merovidea.
124
Alexander B. Murphy, Historical Justifications for Territorial Claims, 80 ANNALS ASS’N AM.
GEOGRAPHERS 531 (1990).
125
Territorial Dispute (Libya/Chad), [1994] ICJ Rep 6.
126
North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany
v. Netherlands), [1969] ICJ Rep 3.
127
Ibid.

19
PRAYER
For the foregoing reasons, the Republic of Merovidea, respectfully requests this Honourable
Court to declare that:
1. Brezania has violated the “Treaty of Equity” and “Uba Agreement” governing the
equitable sharing of water and by doing this Brezania has violated the right to water
of Merovidean people.
2. Brezania has caused irreversible environmental damage to Merovidea and must make
reparations to Merovidea for all direct and indirect expenses incurred and accruing as
a result of its actions (and inactions) regarding environmental and economic damage
and the liability of Brezania in respect to environmental damage is co-extensive with
the corporations directly causing this damage.
3. Merovidea has a right to subject assets of Central Bank of Brezania to enforcement

proceedings.
4. Merovidea has a right to put strict import controls on Brezanian imports until its
industries continue to cause environmental damage to Merovidea and the same is
within its rights being a member of WTO.
5. Merovidea has a right to conduct nuclear tests on its soil and has not violated any
principle of international law.
6. Merovidea has sole right over the creek of Tenling as per historical evidence.
Respectfully Submitted,
Agents for Merovidea

X

TC No. 417 Petitioner

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P - 417

4th VIPS INTERNATIONAL LAW MOOT COURT COMPETITION, 2017

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

CASE CONCERNING THE LEGALITY OF DEFENCE OF NECESSITY IN INTERLINKING

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT

STATEMENT OF FACTS .................................................................................................... VII

STATEMENT OF ISSUES .....................................................................................................IX

LEGAL PLEADINGS ............................................................................................................... 1

I. BREZANIA HAS VIOLATED THE “TREATY OF EQUITY” AND “UBA

II. BREZANIA IS RESPONSIBLE FOR ENVIRONMENTAL DAMAGE SUSTAINED

III. MEROVIDEA HAS RIGHT TO SUBJECT ASSETS OF CENTRAL BANK OF

IV. MEROVIDEA DID NOT VIOLATE INTERNATIONAL LAW BY IMPOSING

V. MEROVIDEA DID NOT VIOLATE INTERNATIONAL LAW BY CONDUCTING

VI. MEROVIDEA HAS SOLE RIGHT OVER CREEK OF TENLING AS PER

Memorial for Applicant

JUDICIAL AND ARBITRAL DECISIONS

AIR SERVICES AGREEMENT CASE (France v. United States) (1978) Arbitral 11

Memorial for Applicant

ICJ Rep 47.

Memorial for Applicant

TREATIES AND CONVENTIONS

CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 296 (2012). 15

Memorial for Applicant

YEHUDA Z. BLUM, HISTORIC TITLES IN INTERNATIONAL LAW 100 (Ed. 1, 1965). 18

Alexander B. Murphy, Historical Justifications for Territorial Claims, 80 19

Memorial for Applicant

Memorial for Applicant

BACKGROUND OF MEROVIDEA AND BREZANIA

Memorial for Applicant

Memorial for Applicant

Memorial for Applicant

I. BREZANIA HAS VIOLATED THE “TREATY OF EQUITY” AND “UBA

International Obligations may arise for a State by a treaty and by a rule of

1. Brezania has violated right to water of Merovidean people.

A. Brezania has violated bilateral treaties signed between Merovidea and

i. Brezania has violated the “Treaty of Equity”

Brezania has violated the bilateral treaty named “Treaty of

Memorial for Applicant

ii. Brezania has violated the “Uba Agreement”

Uba agreement was a bilateral summit held at City of Uba,

B. Brezania has violated Multilateral Treaties and Conventions.

Memorial for Applicant

i. Convention on the Protection and Use of Trans-boundary

In the instant case Brezania has violated the provisions of the

ii. Convention on the law of Non Navigational Use of Water

Brezania in the instant case was also a party to the Convention

Memorial for Applicant

2. The Interlinking of River was not a necessity.

The defence of necessity invoked by Brezania is no valid in the instant case.

II. BREZANIA IS RESPONSIBLE FOR ENVIRONMENTAL DAMAGE

Memorial for Applicant

The Brezanian corporations have caused an irreversible environmental damage to

1. The acts of the Brezanian corporations are Attributable to the State

Article 5 of the ASR deals with “Conduct of an entity” exercising elements of

Even where an activity causing environmental harm is conducted by private

Memorial for Applicant

In Oneryildiz36 it was emphasized by the court that ‘The positive obligation to

2. Brezania has caused irreversible environmental damage to Merovidea

Brezania has caused an irreversible environmental damage to Merovidea and has

A. Brezania has violated Treaties and Conventions of International Law

Brezania had ratified various multilateral treaties on environment protection and

Memorial for Applicant

Fourthly, Brezania has violated the principle of the Convention on Non-