SVKM’s NMIMS KIRIT P.

MEHTA SCHOOL OF LAW

MOOT COURT COMPETITION 2020

Before
THE INTERNATIONAL COUT OF JUSTICE

MYSTERY
APPLICANT
v.
ENIGMA
RESPONDENT

CASE CONCERNING
INTERNATIONAL OIL POLLUTION
OFF-SHORE DRILLING IN THE TERRITORIAL WAERS OF ENIGMA COUNTRY

MORIAL FOR THE APPLICANT

SVKM’S NMIMS KIRIT P. MEHTA SCHOOL OF LAW
INTERNATIONAL MOOT COURT COMPETITION
MARCH 2020

Memorial for Plaintiff Page| IX

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TABLE OF CONTENT

TABLE OF ABBREVIATIONS……………………………………………………….1
INDEX OF AUTHORITIES…………………………………………………………II
STATEMENT OF JURISDICTION………………………………………………….…IV

STATEMENT OF FACTS………………………………………………………………VI

ISSUES RAISED…..……...…………………………………………………………….VII

SUMMARY OF ARGUMENNT.……………………………………………………….VIII

ARGUMENTS ADVANCED.…………………………………………………………….1

[ISSUE I] Whether the ICJ has jurisdiction to adjudicate dispute……….1

[1.1]Whether the old 1924 treaty of transboundary harm holds ground for
arbitration
[1.2]Whether in limine litis exception holds good
[ISSUE II]Whether the has violated principles of customary international law
[A]Principle of good neighbourliness and
[B.]
[ISSUE III]Whether Enigma was acting in bad faith
[A]Whether Enigma acted in bad Faith
[A.1] by not informing Mystery of the Oil spill
[A.2]by not informing Mystery of the Forest fire
[B] Whether enigma should have shared with Mystery of the EIA
[ISSUE IV] What would be the quantum of Damages that are to be awarded
[A]Whether travel cost and ecosystem approach can be used to determine the
damages
[A.1]Whether travel cost method should be used
[A.2]Whether Ecosystems approach can be used
[B]Whether ‘Pure Environmental damage can be awarded
[B.1]Can the Damages be Punitive in Nature
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PRAYER
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TABLE OF ABBREVIATION
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INDEX OF AUTHORITIES

BOOKS

STATUTE

ARTICLES

CASES
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STATEMENT OF JURISDICTION

The applicant and the respondent have the honour to submit the following dispute to the international
court of justice by special agreement for resolution, pursuant to article 40(1) of the statute of the court.
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STATEMENT OF FACTS
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ISSUES RAISED
In regard to jurisdiction of the court:
[ISSUE I] Whether the ICJ has jurisdiction to decide the dispute
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SUMMARY OF ARGUMENTS

[ISSUE I] Whether the ICJ has jurisdiction to adjudicate on the dispute

The old treaty of 1924 dealing with transboundary territorial pollution is not valid in this case
on two counts (i)the very nature of the dispute is not in the treaty due to the fact off shore oil
drilling was developed after 1924 therefore there arises no question of the treaty being
relevant (ii) the treaty is not relevant to the issue in question. The question with regards of in
limine litis exception does not stand on two grounds (i) it does not follow the stand form of
residual preliminary objection as illustrated by the Lockbee case (ii) the amount of
compensation falls on the country enigma due to its own indirect propagation and negligent
standard for oil related activity.
[ISSUE II] Whether enigma acted in bad faith

[ISSUE III] What is the amount of compensation and the compensation model that is to
be used

[ISSUE IV] Whether the compensation must be offered by Enigma

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ARGUMENTS ADVANCED

[ISSUE I]THAT THE ICJ HAS CONFIRMED ITS JURISDICTION; ACCORDINGLY THIS COURT
IS THE APPROPRIATE FORUM TO HEAR THE DISPUTE

¶1. Under Art. 40(1) of the ICJ Statue, the Court has jurisdiction over all matters with
regards to dispute as both have dully signed and submitted to the registrar of the International
court of Justice1.The Jurisdiction is also conferred by the recognition of compulsory
jurisdiction by Enigma under article 36(2)C&D as their arises conflict with regards to the
exact nature and extent of compensation.

(A) WHETHER THE OLD 1924 TREATY OF TRANSBOUNDARY RIVER AND

TERRITORIAL WATER HOLDS GROUND FOR ARBITRATION

¶2. The Treaty does not stand on two counts [1.1]The old treaty of transboundary river
and territorial water as signified was dully signed and made in 1924 by which time, mobile
drilling units has not come into existence therefore the ratione materiae of the treaty does not
talk about incidents of this kind. [1.2] As seen in the Ambatielos. (Greece v. United
Kingdom)2 there must be “Sufficient Plausibility”3 between the treaty under which
jurisdiction is being asked for and the issue at hand which is evidently not the case.

¶3. In the US v. Nicaragua 4 also, the ICJ had clearly stated that the treaty under which
the compulsory jurisdiction is asked for lacked coherence to the subject matter, in this
scenarios it is clearly understood that transboundary river and territorial waters treaty refer to
dispute with regards to issues in relation of the waters themselves but that is clearly not the
case. Also a clear demarcation has been given in the case of Islamic republic of Iran v. United
States of America.5

1
RECORD¶

2
Ambatielos. (Greece v. United Kingdom). Merits, Judment. I.C.J. Reports 1953, p. 10, at p. 18.

3
Ambatielos. (Greece v. United Kingdom). Merits, Judment. I.C.J. Reoorts 1953, p. 10, at p. 18.
4
(Nicaragua v. United States of America), Jurisdiction and Adrnissibilitv. Judgrnent, I.C.J. Revorts 1984, p.
392, at pp. 427-429.
5
Oil Platforms, Islamic Republic of Iran v United States of America, 1996, 810, para 16
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¶4. It also must be noted that arbitration in general for the case of transboundary
environmental damages results in long and laborious process as such can be seen in the trail
smelter arbitration case6.

(B) THAT IN LIMINE LITIS EXCEPTION IS INVALID

¶5. In limine Litis exception does not hold up as a preliminary objection as a residual
objection7 doesn’t stand due to the fact that the cause for litigation here is the a nature of the
damages that are asked for. The Normal course of action has very well been determined
under IOPC Funds documents but punitive damages and pure environmental damages are of
awarded under the convention.

¶6. It has also been concurrently surfaced that an international court or tribunal which has
jurisdiction with respect to a claim of State responsibility has, as an aspect of that
jurisdiction, the power to award compensation for damage suffered.

(C) WHETHER ENIGMA VIOLATED ANY INTERNATIONAL OBLIGATION TOWARDS

MYSTERY TO BIND IT UNDER ART. 36(2) C

¶7. In this case it is Evident that there is a dispute regarding the nature and form of
compensation and the actions that have been committed in violation of international
obligation, under Art 36(2) C8.

¶8. The actions of Enigma are in clear violation of the principle of good neighbourliness
and also In violation of the principles enshrined in Rio Declaration9

[ISSUE II] THAT THE HAS VIOLATED PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW

¶ The actions of enigma are in clear violation of international law thereby entailing
responsibility. An internationally wrongful act is committed by a State only when a conduct

6
7

8
Statute of internation court of justice
9
Principle 15
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1
consisting of an action or omission is attributable to that State under international law; and
2
that conduct constitutes a breach of an international obligation of that State. The Applicant
seeks to establish in the below mentioned manner that the Engima stands in clear
contravention of the international obligations casted upon it.

¶ In accordance with the principle of sic utero tuo, ut alienum non laedas (Principle of
Good Neighbourliness) which is a well-established principle of Customary international law
10
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” 11. The ICJ also
confirmed the customary nature of the principle in saying “certain general and well
recognized principles ,namely every state’s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other states” 12.To ensure that activities within their
jurisdiction and control are such that they do not affect their neighbours.

¶ Hence the obligation to prevent transboundary harm is there upon Enigma. 13and this
obligation has further been reaffirmed in very many judicial decisions.14 The duty to prevent
10
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) [Hereinafter
Shaw].
11
Trail Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941) [Hereinafter Trail Smelter Arbitration
Case];
12
Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21; Lac Lanoux Arbitration (Fr v. Spain)24 I.L.R (1957)
[Hereinafter Lac Lanoux Arbitration].

13
Art. 3, ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with
Commentaries, [2001] 2 Y.B Int‟l L Comm‟n 392, [Hereinafter I.L.C. Draft Articles on Transboundary harm];
Principle 21, Declaration of the United Nations Conference on the Human Environment, June, 16, 1972, 11
I.L.M 1416; Art. 2, Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M 849
[Hereinafter Rio declaration]; Art. X, Helsinki Rules on the Uses of the Waters of International Rivers, 52 Int‟l
L. Ass‟n 477, 484 (1966) [Hereinafter Helsinki Rules]; Art. 194, U.N. Convention on the Law of the Sea,
(Hereinafter UNCLOS), Dec.10, 1982; 1833 U.N.T.S 3, 397; Principle 3, UNEP Principles on Conservation and
Harmonious Utilisation of Natural Resources Shared By Two or More States, 17 I.L.M 1094 (1978);
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London), 11 I.L.M.
(1972), 1294; Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 1302 U.N.T.S 217;
Basel Convention on the control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar.
22, 1989, 1673 U.N.T.S 126; G.A. Res. 1974/3281 (XXIX); G.A. Res. 34/186 (1979).

14
Trail Smelter, supra note 19; Lac Lanoux supra note 20; 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, (Belg. 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 (8th July); Gabčĭkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept.
25).
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transboundary harm has even attained the status of customary international law relating to
environment.15Hence, it is unequivocally clear that under customary international law,
Enigma is under a strict obligation to prevent transboundary harm.

(A) DIRECT CONSEQUENCES OF THE FAILURE TO REGULATE THE ACTIVITIES OF OIL

CO.WITHIN THEIR JURISDICTION ARE ATTRIBUTABLE TO THE REPUBLIC OF
REPELMUTO

A.1. THE CUSTOMARY INTERNATIONAL OBLIGATIONS THAT ENIGMA HAS TOWARDS

MYSTERY
¶ In accordance with the principle of sic utero tuo, ut alienum non laedas (Principle of
Good Neighbourliness) which is a well-established principle of Customary international law
16
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” 17. The ICJ also
confirmed the customary nature of the principle in saying “certain general and well
recognized principles ,namely every state’s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other states” 18.To ensure that activities within their
jurisdiction and control are such that they do not affect their neighbours.

15
Prue Taylor, An Ecological Approach to International Law: Responding to Challenges of Climate Change, 70
(Routledge, 1998); Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3
16
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) [Hereinafter
Shaw].
17
Trail Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941) [Hereinafter Trail Smelter Arbitration
Case];
18
Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21; Lac Lanoux Arbitration (Fr v. Spain)24 I.L.R (1957)
[Hereinafter Lac Lanoux Arbitration].
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¶ Hence the obligation to prevent transboundary harm is there upon Enigma. 19and this
obligation has further been reaffirmed in very many judicial decisions. 20 The duty to prevent
transboundary harm has even attained the status of customary international law relating to
environment.21Hence, it is unequivocally clear that under customary international law,
Enigma is under a strict obligation to prevent transboundary harm.

A.2 THE CONDUCT OF OIL CO. CAN BE CONSIDERED AN ACT OF STATE

¶ Oil Co. having won the bid to Mobile Drilling Unit (MDU) from Enigma22 is seen as
acting under the authorization of the state (enigma) in pursuant of the goal to drill oil.
Therefore making it under Art.6 of the ILC Draft articles on state responsibility. 23Further the
negligent action of Oil Co. will be taken as a wrongful conduct as mentioned under Art.12
and in furtherance Art.1324.

The ILC Articles on State Responsibility define a state organ as "any person or entity which

5
has that status in accordance with the internal law of the state." It includes an organ of any

19
Art. 3, ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with
Commentaries, [2001] 2 Y.B Int‟l L Comm‟n 392, [Hereinafter I.L.C. Draft Articles on Transboundary harm];
Principle 21, Declaration of the United Nations Conference on the Human Environment, June, 16, 1972, 11
I.L.M 1416; Art. 2, Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M 849
[Hereinafter Rio declaration]; Art. X, Helsinki Rules on the Uses of the Waters of International Rivers, 52 Int‟l
L. Ass‟n 477, 484 (1966) [Hereinafter Helsinki Rules]; Art. 194, U.N. Convention on the Law of the Sea,
(Hereinafter UNCLOS), Dec.10, 1982; 1833 U.N.T.S 3, 397; Principle 3, UNEP Principles on Conservation and
Harmonious Utilisation of Natural Resources Shared By Two or More States, 17 I.L.M 1094 (1978);
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London), 11 I.L.M.
(1972), 1294; Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 1302 U.N.T.S 217;
Basel Convention on the control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar.
22, 1989, 1673 U.N.T.S 126; G.A. Res. 1974/3281 (XXIX); G.A. Res. 34/186 (1979).

20
Trail Smelter, supra note 19; Lac Lanoux supra note 20; 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, (Belg. 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 (8th July); Gabčĭkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept.
25).
21
Prue Taylor, An Ecological Approach to International Law: Responding to Challenges of Climate Change, 70
(Routledge, 1998); Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3
22
RECORD ¶
23
ILC draft article
24
ILC draft articles on state responsibility
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territorial governmental entity within the State on the same basis as the central governmental

6
organs of that State.

[ISSUE III]WHETHER ENIGMA ACTED IN BATH FAITH

¶ In accordance with the principle of sic utero tuo, ut alienum non laedas (Principle of
Good Neighbourliness) which is a well-established principle of Customary international law
25
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” 26. The ICJ also
confirmed the customary nature of the principle in saying “certain general and well
recognized principles ,namely every state’s obligation not to allow knowingly its territory to
be used for acts contrary to the rights of other states” 27.To ensure that activities within their
jurisdiction and control are such that they do not affect their neighbours.
¶ Hence the obligation to prevent transboundary harm is there upon Enigma. 28and this
obligation has further been reaffirmed in very many judicial decisions.29 The duty to prevent
25
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) [Hereinafter
Shaw].
26
Trail Smelter Arbitration, (U.S. v. Can.), 35 Am. J. Int'l L. 684 (1941) [Hereinafter Trail Smelter Arbitration
Case];
27
Corfu Channel Case, (U.K. v. Alb.), 1949 I.C.J, 21; Lac Lanoux Arbitration (Fr v. Spain)24 I.L.R (1957)
[Hereinafter Lac Lanoux Arbitration].

28
Art. 3, ILC Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with
Commentaries, [2001] 2 Y.B Int‟l L Comm‟n 392, [Hereinafter I.L.C. Draft Articles on Transboundary harm];
Principle 21, Declaration of the United Nations Conference on the Human Environment, June, 16, 1972, 11
I.L.M 1416; Art. 2, Rio Declaration on Environment and Development, June 13, 1992, 31 I.L.M 849
[Hereinafter Rio declaration]; Art. X, Helsinki Rules on the Uses of the Waters of International Rivers, 52 Int‟l
L. Ass‟n 477, 484 (1966) [Hereinafter Helsinki Rules]; Art. 194, U.N. Convention on the Law of the Sea,
(Hereinafter UNCLOS), Dec.10, 1982; 1833 U.N.T.S 3, 397; Principle 3, UNEP Principles on Conservation and
Harmonious Utilisation of Natural Resources Shared By Two or More States, 17 I.L.M 1094 (1978);
Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter (London), 11 I.L.M.
(1972), 1294; Convention on Long-Range Transboundary Air Pollution, Nov. 13, 1979, 1302 U.N.T.S 217;
Basel Convention on the control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar.
22, 1989, 1673 U.N.T.S 126; G.A. Res. 1974/3281 (XXIX); G.A. Res. 34/186 (1979).

29
Trail Smelter, supra note 19; Lac Lanoux supra note 20; 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, (Belg. 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 (8th July); Gabčĭkovo-Nagymaros Project case, (Hung. v. Slovk.) 1997 I.C.J 7 (Sept.
25).
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transboundary harm has even attained the status of customary international law relating to
environment.30Hence, it is unequivocally clear that under customary international law,
Enigma is under a strict obligation to prevent transboundary harm.

[A]WHETHER ENIGMA ACTED IN BAD FAITH BY NOT INFORMING MYSTERY OF

THE FOREST FIRE

¶ The precautionary principle lays down that where 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 degradation31. The
precautionary principle has been quite controversial because it advocates action despite the
lack of scientific certainty as taking action under such condition could be proven wrong.

¶ Moreover, this does not mean that science ceases to be relevant in judging the
existence of risk, or that states are required or permitted to act on the basis of mere hypothesis
or purely theoretical assessments of risk.32

¶ On the contrary, recourse to the precautionary principle presupposes that potentially

dangerous effects deriving from a phenomenon, product or process have been identified, and
that the scientific evaluation does not allow the risk to be determined with sufficient actually
facilitated the transboundary harm caused33. Hence, Enigma omission or failure to act with
due diligence has permitted to act on the basis of mere hypothesis or purely theoretical
assessments of risk certainty

30
Prue Taylor, An Ecological Approach to International Law: Responding to Challenges of Climate Change, 70
(Routledge, 1998); Daniel Bodansky, Customary (and Not So Customary) International Environmental Law, 3
31
U.N Convention on Biological Diversity, Preamble, June 5, 1992, 31 I.L.M. 818 [Hereinafter CBD]; Principle
11, World Charter for Nature, , UNGA Res. 37/7, 37 U.N. GAOR, Suppl. (No. 51), at 17, U.N.Doc. A/37/51
(Oct. 28, 1982); principle 15, Rio Declaration supra note 21; Art. 10, Cartagena Protocol on Biosafety to the
Convention on Biological Diversity, Jan. 29, 2000, 39 I.L.M 1027; See also David Freestone and Ellen Hey,
The Precautionary Principle and International Law: The Challenge of Implementation, 10 (Kluwer Law Int‟l ,
1st ed. 1996).
32
Id.

33
EC, Communication on the Precautionary Principle, COM(2000)1, at pg.4.
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[B] WHETHER ENIGMA SHOULD HAVE SHARED WITH MYSTERY OF THE EIA

[ISSUE IV] WHAT WOULD BE THE QUANTUM OF DAMAGES THAT ARE TO BE AWARDED

1¶
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PRAYER

WHEREFORE, considering the foregoing submissions, Mystery most respectfully requests

the Honourable International Court of Justice to adjudge and declare that:

(A)  Declare that the Republic of Enigma has failed to properly regulate the activities within
its jurisdiction.

(B)  Declare that it has in general acted in bad faith towards Mystery.

(C) To pass an order that the Enigma is liable for reparation to Mystery for the pure
Environmental Damages and also the damages to be paid are to be punitive in nature.

RESPECTFULLY SUBMITTED.

X__________________________

Agents for Mystery