TEAM CODE: T24R

SVKM’s NMIMS KIRIT P. MEHTA SCHOOL OF LAW, MUMBAI

INTERNATIONAL MOOT COURT COMPETITION 2020

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

IN THE MATTER OF

MYSTERY (APPLICANT)

V.

ENIGMA (RESPONDENT)

Case Concerning International Oil Pollution: Off-Shore Drilling In the Territorial Waters of
Enigma Country Causing Significant Environmental Damage to Coastal Areas in Both
Enigma and its Neighbouring Mystery Mountry

MEMORANDUM FILED ON BEHALF OF THE RESPONDENTS

MEMORANDUM for RESPONDENTS [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ______________________________________________ III

INDEX OF AUTHORITIES _______________________________________________ VI

STATEMENT OF JURISDICTION _________________________________________ XV

STATEMENT OF FACTS ________________________________________________ XVI

CLAIMS RAISED _____________________________________________________ XVII

SUMMARY OF ARGUMENTS _________________________________________ XVIII

ARGUMENTS ADVANCED _________________________________________________ 1

ISSUE I:- THE HON’BLE ICJ HAS NO JURISDICTION TO ADJUDICATE

UPON THE PRESENT MATTER ...................................................................................... 1

A. THE EXISTENCE OF A LEX SPECIALIS ARBITRATION AGREEMENT OUSTS THE

JURISDICTION OF ICJ ......................................................................................................... 1

1. The Charter of the United Nations obliges the States to exhaust all means of
peaceful settlement .......................................................................................................... 1

2. Mystery is bound by the Treaty of 1924 to enter into bilateral arbitration............. 2

a) Special law prevails over a general law _______________________________ 2

b) The ICJ promulgates the practice of bilateral arbitration __________________ 3
c) Mystery shall not be permitted to take an advantage of its own wrong _______ 3

B. THE ICJ SHALL NOT INSTITUTE PROCEEDINGS WITHOUT RIDDLE COUNTRY BEING
A PARTY TO THE CASE ........................................................................................................ 3

ISSUE II:- ENIGMA IS NOT LIABLE FOR THE ENVIRONMENTAL

CONSEQUENCES FOR THE ACTIONS OF OILCO. .................................................... 4

A. ENIGMA IS NOT RESPONSIBLE FOR THE ACT OF OILCO. ........................................... 4

1. Enigma did not direct or control OilCo .................................................................. 4

2. OilCo’s negligence is not attributable to Enigma. .................................................. 5

B. THE ACTS OF ENIGMA DOES NOT CONSTITUTE A BREACH OF AN ENVIRONMENTAL

OBLIGATION OF THE STATES. ............................................................................................ 6

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MEMORANDUM for RESPONDENTS [TABLE OF CONTENTS]

1. Such actions are in conformity with International Customary Laws ...................... 6

a) Enigma did not cause Transboundary harm to Mystery ___________________ 6

b) Enigma did not violate Precautionary Principle _________________________ 7

2. There is no violation of erga omnus norms ............................................................. 7

3. Even Assuming Enigma’s Actions Were In Violation Of International Law, The

Doctrine Of Necessity Excuses Those Actions. ............................................................... 8

a) The In-situ burning was the only means to safeguard the Marine and
Biodiversity viability of Enigma and Mystery against grave and imminent peril ___ 8
b) Enigma did not contribute to the situation giving rise to the claim of necessity 9

4. Enigma’s responses comply with Standard Procedure and General Principles of

International Law.......................................................................................................... 10

a) Enigma complied with Common but differentiated Responsibility _________ 10

b) Enigma complied with the principle of Good Neighbourliness ____________ 10

ISSUE III:- ENIGMA HAS VIOLATED INTERNATIONAL LAW IN ITS

TREATMENT OF THE ENVIRONMENT ..................................................................... 11

A. THAT ENIGMA HAS ACTED IN CONSONANCE WITH THE PRINCIPLES ENSHRINED

UNDER THE UNITED NATIONS CONVENTION ON LAW OF THE SEA 1982. ...................... 11

B. THAT ENIGMA DID NOT VIOLATE THE PRINCIPLES ENSHRINED UNDER THE RIO
DECLARATION ON ENVIRONMENT AND DEVELOPMENT 1992. ....................................... 12

C. THAT MYSTERY CANNOT CLAIM UNDER IOPC FUNDS, CLAIMS MANUAL. ........... 13

ISSUE IV:- ENIGMA IS NOT LIABLE TO PAY REPARATIONS OR

COMPENSATION TO MYSTERY ................................................................................. 14

A. ACTS OF OILCO IS NOT ATTRIBUTABLE TO THE ENIGMA ....................................... 14

B. THAT, THE INVOCATION OF NECESSITY DOES NOT REQUIRE COMPENSATION........ 15

C. PURE ENVIRONMENTAL DAMAGES SHALL NOT BE GRANTED TO MYSTERY. .......... 15

D. MYSTERY IS NOT LIABLE TO PAY EXEMPLARY DAMAGES ....................................... 15

E. ENIGMA IS NOT LIABLE TO SATISFY MYSTERY ....................................................... 16

PRAYER _______________________________________________________________ XX

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MEMORANDUM for RESPONDENTS [LIST OF ABBREVIATIONS]

LIST OF ABBREVIATIONS

¶ Paragraph

Annex. Annexure

APTH Articles on Prevention of Transboundary

Harm from Hazardous Activities

Arb. Arbitration

Art. Article

ARSIWA Articles on Responsibility of States for

Internationally Wrongful Acts

CBD Convention on Biological Diversity, 1992

CIL Customary International Law

CLC Civil Liability Convention for Pollution

Damage

CO2 Carbon di-oxide

Comm’n Commission

Doc. Document

EC European Commission

ECHC European Commission Human Rights

EEZ Exclusive Economic Zone

EIA Environment Impact Assessment

Envtl. Environmental

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MEMORANDUM for RESPONDENTS [LIST OF ABBREVIATIONS]

GAOR General Assembly Official Records

GEO. Georgetown

Ger. Germany

I.C.J. Rep. International Court of Justice Reports

ICJ International Court of Justice

Id. Ibid

Int’l International

ILSA International Law Students Association

IOPC International Oil Pollution Compensation

Funds

ITLOS International Tribunal for the Law of the

Sea

IUSCT Iran-United States Claims Tribunal

J. Journal

L. Law

MDU Mobile Drilling Unit

MMED Mystery’s Marine Ecological Department

N.Z. New Zealand

NDC Nationally Determined Contributions

PCIJ Permanent Court of International Justice

L. Rev. Law Review

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MEMORANDUM for RESPONDENTS [LIST OF ABBREVIATIONS]

R.I.A.A Reports of International Arbitral Awards

Ramsar Convention on Wetlands of International

Importance, especially as Waterfowl
Habitat, 1971

Res. Resolution

U.K. United Kingdom

U.N.T.S United Nations Treaty Series

U.S.A. United States of America

UN United Nations Organisation

UNCLOS United Nation Convention on the Law of

the Sea

UNFCCC United Nations Framework Convention on

Climate Change

UNRIAA United Nations of Reports of International

Arbitral Awards

UNEP United Nations Environment Programme

VCLT Vienna Convention on The Law of Treaties,

1969

WHO World Health Organisation

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

I.C.J. CASE LAWS PAGE NO.

Ambatielos Case (Greece v. United Kingdom), 1952 I.C.J. Rep. 28 ( May 3

19)

Applicability of the Obligation to Arbitrate under Section 21 of the United 2

Nations Headquaters Agreement of 26 June 1947, Advisory Opinion, 1988
I.C.J. Rep. 12 (April 26).

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. 3

Belgium), Judgment, 2002 I.C.J. Rep. 3 ¶35 (February 14)

Case Concerning Application of the International Convention on the 1

Elimination of all forms of Racial Discrimination (Georgia v. Russian
Federation), 2011 I.C.J. Rep. 70 (April 1).

Case Concerning the Barcelona Traction, Light and Power Company, 8

Limited (Belgium v. Spain) ,1970 I.C.J.Rep. 3., ¶ 32( February 5).

Case Concerning the Barcelona Traction, Light and Power Company, 4

Limited (Belgium v. Spain) ,1970 I.C.J.Rep. 3.,( February 5).

Case Concerning the Continental Shelf (Libya Arab Jamahiriya/Malta), 11

1985 I.C.J. Rep. 33, ¶265 (June 3).

Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 8

Gabcikovo-Nagymaros, Judgment, I.C.J. Rep. 1997, p. 7 ¶ 52 (Sep. 25).

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), 3

Judgment, 1963 I.C.J. Rep. 15, ¶27 (December 02).

Case of the Monetary Gold removed from Rome in 1943 (Italy v. France, 4
United Kingdom of Great Britain and Northern Ireland and United States of
America), 1954 I.C.J. Rep 19 (June 15).

Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary 4

Objection, 1992 I.C.J. Rep 240 (June 26).

Corfu Channel (United Kingdom v. Albania), Judgment, Merits, 1949 I.C.J. 15

Rep. 4, ¶26 (April 9)

East Timor Case (Portugal v. Australia), 1995 I.C.J. Rep. 90, ¶101 4
(February 22).

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 3

Advisory Opinion (Second Phase), 1950 I.C.J. Rep. 221 (July 18)

Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, 3

Advisory Opinion, 1950 I.C.J. Rep. 65 (July 18)

Land and Maritime boundary between Cameroon and Nigeria (Camroon v. 3

Nigeria), 1998 I.C.J. Rep. 303, ¶56.

Maritime Delimitation in the Black Sea (Romania v. Ukarine), 2009 I.C.J. 11

Rep. 61, ¶89 (February 3).

Military And Paramilitary Activities In And Against Nicaragua (Nicaragua 2

v United States Of America),Merits, 1986 I.C.J. Rep. 14, ¶274 (June 27)

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

North Sea Continental Shelf Case (Federal Republic of Germany/ Denmark; 11

Federal Republic of Gemarny/ Netherlands), 1969 I.C.J. Rep. 3, ¶22
(February 20)

North Sea Continental Shelf Cases (Federal Republic of Germany v 2

Denmark; Federal Republic of Germany v Netherlands), 1969 I.C.J. Rep 3
42, ¶72 (February 20).

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010, 7

I.C.J. Reports 2010, p.14, ¶204 (April 20)

South West Afrrica Cases, (Ethiopia v. South Africa; Liberia v. South 3

Africa), Preliminary Objection, 1962 I.C.J. Rep. 319, p. 328 (December
21).

Tehran Hostages (United States v. Iran), 1980 I.C.J. Rep. 3. 3

The Minquiers and Ecrehos Case, 1953 I.C.J. Rep. 17–19 3

P.C.I.J. CASE LAWS PAGE NO.

Advisory Opinion of 23 July 1923 (including the text of the joint 3

declaration by Judge Weiss, Judge Nyholm, Judge de Bustamante and
Judge Altamira, 1923 P.C.I.J. Rep. (Ser. B, No. 5).

Charzow Factory case(Germany v Poland), Judgment, Claim for Indemnity, 15

Merits, 1928 PCIJ Series A No 17, (September 13).

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

Mavrommatis Palestine Concessions case (Greece v Great Britain), 2

Judgment, 1924 P.C.I.J. 2, 31 (Aug. 30).

OTHER CASE LAWS PAGE NO.

Beagle Channel Arbitration (Argentina v Chile), 1979 ILR 52, ¶141 2

Case concerning the difference between New Zealand and France 15

concerning the implementation or application of two agreements concluded
on 9 July 1986 between the two States and which related to the problems
arising from the Rainbow Warrior Affair, Reports of International Arbitral
Awards, Vol. XX (1990), p. 215, ¶75 (Apr. 30, 1990).

Guyana v. Suriname Award, 2007 ICGJ 370 (PCA), ¶421 (September 17). 3

INA Corporation v Government of the Islamic Republic of Iran, 1985 CTR 2

8 378

Riggs v. Palmer, 115 NY 506 (Court of Appeal of New York Judgment) 3

(Oct. 8, 1889).

United States v. The Palestine Liberation Organization and Others, 2

Southern District New York, 695 Fed. Supp. 1456 (1988)

STATUTES, CONVENTIONS AND TREATIES PAGE NO.

Articles on Responsibility of States for Internationally Wrongful Acts art. 8, 4

Dec. 12, 2001, Supp. No. 10 A/56/10

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

CISDL LEGAL BRIEF, The Principle of Common but Differentiated 10

Responsibilities: Origins and Scope 1
http://cisdl.org/public/docs/news/brief_common.pdf

Declaration of the United Nations Conference on the Human Environment 14

Principal 17, 16 June 1972, 11 ILM 1416

Draft articles on Prevention of Transboundary Harm from Hazardous 6

Activities, with commentaries, Art. 3, 2001 Y.B. on ILC, U.N. Sales No.
A/56/10

Fragmentation Of International Law: Difficulties Arising From The 2

Diversification And Expansion Of International Law - Summaries Of The
Work Of The International Law Commission - International Law
Commission’ (Legal.un.org, 2019),
http://legal.un.org/ilc/summaries/1_9.shtml.

Guiding Principles Applicable to Unilateral Declarations of States Capable 16

of Creating Legal Obligations, Yearbook of the International Law
Commission, 2006, vol. II, Part Two (2006) (GPUD)

International Convention on Civil Liability for Oil Pollution Damage art. 1, 13

27 November 1992, U.N.T.S. Vol. No. 973 (p.3)

International Oil Pollution Compensation Funds 1992, 15

http://www.iopcfund.org/

Johannesburg Declaration, Report of the World Summit on Sustainable 5

Development 2, U.N. Doc. A/CONF.199/20 (2002).

Manual, International Oil Pollution Compensation Funds 1992, 13

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

http://www.iopcfund.org/

N. Conference on Conference on Environment and Development, Rio 7

Declaration on Environment and Development, Principal 15, UN Doc.
A/CONF.151/26 (vol. I) (Aug. 12, 1992)

Report of the International Law Commission on the work of its fifty-second 8

session, 18 August 2000, Y.B. Int’l L. Comm’n, 54 U.N. Doc. A/55/10, at
30 (2000)

Report of the International Law Commission, 57th Session, UN Doc 3

A/60/10, ¶ 236.

Report of the United Nations Conference on Environment and Development 5

Agenda 21 ¶ 39.7, (Vol. I-III) 1992, U.N. Doc. A/CONF.151/26

Statute of the International Court of Justice art. 38(c), 33 UNTS 993 3

United Nation Convention on the Law of the Sea art. 56, Dec. 10, 1982, 11
1833 U.N.T.S. 397

United Nations Documents on Conference on International Organization 1

(UNCIO), UN Information

United Nations Framework Convention on Climate Change art. 3(1), Jan. 10

20, 1994, U.N. Doc. A/RES/48/189

Vienna Convention on the Law of Treaties art. 26, opened for 3

signature May 23, 1969, 1155 U.N.T.S. 331.

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

JOURNAL AND ARTICLES PAGE NO.

Barnea Nir, Health and Safety Aspects of In-Situ Burning of Oil, National 7
Oceanic and Atmospheric Administration Seattle WA 98115 USA.

Boyte, Common but Differentiated Responsibilities: Adjusting the 10

Developing/Developed Dichotomy in International Environmental Law, 14
N.Z. J. ENVTL. L. 63, 64 (2010)

Evan Hamman, Katie Woolastin and Bridget Lewis, Legal Responses To 8

Human-Wildlife Conflict: The Precautionary Principle, Risk Analysis And
The ‘Lethal Management’ Of Endangered Species, 7 IUCNAEL E Journal
57,60 (2016).

James Cameron & Juli Abouchar, The Precautionary Principle: A 7

Fundamental Principle of Law and Policy for the Protection of the Global
Environment, 4 14 B.C. Int'l & Comp. L. Rev. (1991)

Martti Koskenniemi, The Function And Scope Of The Lex Specialis Rule 2
And The Question Of Self- Contained Regimes, Legal – UN (2019)

Paul Burrows, Charles Rowley and David Owen, Torrey Canyon: A Case 13
Study in Accidental Pollution, Scottish Journal of Political Economy Vol.
XXI, 3 (1974).

Soto, Max Valverde, General Principles Of International Environmental 11

Law, 3(1) ILSA Journal of International & Comparative Law Article
194,197(1996)

Sucharitkul, Sompong, The Principles of Good-Neighborliness in 10

International Law, 559, Golden Gate University School of Law GGU Law

SVKM'S NMIMS KIRIT P. MEHTA SCHOOL OF LAW, IMCC, 2020 PAGE | XII
MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

Digital Commons Publications (1996).

BOOKS PAGE NO.

CRAWFORD, THE INTERNATIONAL COMMISSION’S ARTICLES ON STATE 6

RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES, 123 (2002).

IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, 14

132-166 (1983)

J. AUSTIN, PROVINCE OF JURISPRUDENCE DETERMINED (1995). 2

L. BOISSON DE CHAZOURNES & LEIDEN, DIPLOMATIC AND JUDICIAL MEANS 1

OF DISPUTE SETTLEMENT, 2 (2012)

MALCOLM N SHAW, INTERNATIONAL LAW, 424 (7th Ed 2017). 12

MALCOLM N SHAW, INTERNATIONAL LAW, 609 (8th Ed 2017). 16

O. SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE, 366-368 7

(1991).

P.W. BIRNIE & A.E. BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, 5
469 (2nd ed. 2002)

PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2d 4

ed. 2003).

United Nations Charter art.33, Jun. 26, 1945, 892 U.N.T.S. 119 1

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MEMORANDUM for RESPONDENTS [INDEX OF AUTHORITIES]

UNITED NATIONS LEGISLATIVE SERIES, MATERIALS ON THE RESPONSIBILITY 5

OF STATES FOR INTERNATIONALLY WRONGFUL ACTS at 70, U.N. Doc.
ST/LEG/SER B/25 (2012)

WILLIAM D. WALTON, IN SITU BURNING OF OIL SPILLS, 68 (1999). 7

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, 129 3

(2003).

YASUHIRU SHIGETA, INTERNATIONAL JUDICIAL CONTROL OF 5

ENVIRONMENTAL PROTECTION 270- 71 (2010).

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MEMORANDUM for RESPONDENTS [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

Mystery and Enigma hereby agree to submit the present dispute to the International Court of
Justice (ICJ) in accordance with Article 40(1) of the Statute of the Court and by virtue of a
Special Agreement (Compromis) signed in The Hague, The Netherlands, on January 30, 2020
and jointly notified to the Court on the same date. Both parties have agreed that the
Compromis is without prejudice to the burden of proof. In accordance with Article 36,
paragraph 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.

Enigma has reserved its right to contend the jurisdiction of the court under Art. 36(3) of the
Statute of the Court.

IN THE INTERNATIOANL COURT OF JUSTICE

PEACE PALACE, THE HAGUE
NETHERLANDS

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MEMORANDUM for RESPONDENTS [SUMMARY OF FACTS]

STATEMENT OF FACTS

THE BACKGROUND

Both Enigma and Mystery country are seafaring nations, both nations are dependent upon oil
imports to meet their energy and industrial requirements. Enigma encouraged off-shore
drilling activities in its exclusive economic zone to discover large amount of oil sources.
OilCo, which is a multinational company, won a bid to set up the oil rig, to undertake ultra
deep water oil explorations in the hope to discover large amount of oil sources at EEZ.

THE OIL SPILL

The day before the OilCo temporarily sealed the oil rig well by using cement casings and
various other multiple barriers, to ensure that there would be no hydrocarbon flow, until it
would revisit the oil rig well at a later stage. On 2nd March 2018, an explosion occurred at the
oil rig, causing the collapse and completely sink. At the time of the event the oil rig was
situated 250km away from the coast of Mystery. Once Enigma came to know about the
spreading oil leak and the ability of the OilCo to stop the leakage, it dispatched the rescue
missions who put the drifting oil parts on fire, this being the best, quickest and the most cost
effective manner to address such large oil spills. An EIA was conducted by OilCo prior to the
commencement of its exploration activities. OilCo informed the Environment Department
only after 2 days and hence delay in notification was not due to bad faith and by that time
Mystery’s Marine Ecology Department was already aware of the situation.

THE DISPUTE

On 28th May 2018, Mystery filed a Unilateral Application before the ICJ against Enigma for
all Environmental Damages including “pure” environmental damages. The Jurisdiction of the
ICJ is challenged by Enigma as an Old Treaty of 1924 pertaining to all Transboundary River
and territorial water disputes binds both countries.

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MEMORANDUM for RESPONDENTS [CLAIMS RAISED]

CLAIMS RAISED

Preliminary Objections

_________________[CLAIM I]_________________

WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS THE JURISDICTION TO

ADJUDICATE UPON THE PRESENT MATTER.

Merits

_________________[CLAIM II]_________________

WHETHER ENIGMA IS LIABLE FOR THE ENVIRONMENTAL CONSEQUENCES OF THE ACTIONS

OF OILCO.

_________________[ CLAIM III]_________________

WHETHER ENIGMA HAS VIOLATED INTERNATIONAL LAW IN ITS TREATMENT OF THE

ENVIRONMENT.

_________________[ CLAIM IV]_________________

WHETHER ENIGMA IS LIABLE TO PAY REPARATIONS TO MYSTERY AND WHAT SHALL BE

THE QUANTUM OF SUCH REPARATIONS.

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MEMORANDUM for RESPONDENTS [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

[CLAIM -I]: THE HON’BLE INTERNATIONAL COURT OF JUSTICE HAS NO

JURISDICTION TO ADJUDICATE UPON THE PRESENT MATTER

It is humbly submitted before the Hon’ble International Court of Justice that the Treaty of
1924, being a lex specialis arbitration agreement ousts the jurisdiction of the court as it an
obligation arising out of UN Charter and a pre-condition to the invocation of this Hon’ble
Court’s jurisdiction. Furthermore, that all appropriate parties need to be present before the
Hon’ble in order to commence proceedings. Since OilCo is incorporated in Riddle and has its
headquarters there, it also needs to be made a party to the proceedings, without which this
Hon’ble Court shall not proceed further.

[CLAIM -II]: ENIGMA IS NOT LIABLE FOR THE ENVIRONMENTAL

CONSEQUENCES FOR THE ACTIONS OF OILCO

It is humbly submitted before this Hon’ble Court that Enigma is not responsible for the act of
OilCo as the plant was directed and controlled by the OilCo and not by the Enigma. Further,
there is no evidence which shows that Enigma has control over the OilCo. It is further
submitted that all the actions of Enigma was inconformity with the International Customary
Laws. Act of in-situ burning was the requirement of necessity as the oil slick was flowing
toward the shoreline of Mystery where Nuclear Power Plant was situated. In order to stop the
flowing of oil and greater harm to the Humanity and Environment, Enigma had to act under
those circumstances.

[CLAIM -III]: ENIGMA HAS VIOLATED INTERNATIONAL LAW IN ITS

TREATMENT OF THE ENVIRONMENT.

It is humbly contended on behalf of Enigma that it has acted in consonance with the
international law in its treatment of the environment. This is because firstly, Enigma has
sovereign rights for the purpose of exploring and exploiting the natural resources within the
EEZ under the United Nations Convention on Law of the Sea, 1982; Secondly, Enigma has
only offered a bid to set up oil rig for the exploration and survey of Hydrocarbons at the EEZ
and has EIA was conducted by the OilCo for the same and has not violated the principles

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MEMORANDUM for RESPONDENTS [SUMMARY OF ARGUMENTS]

enshrined under the Rio Declaration on Environment and Development, 1992; Thirdly, That
Mystery cannot claim under International Oil Pollution Compensation Funds as the oil rig
does not fall under the definition of the ‘ship’ and the IOPC funds are only applicable to the
ships which carry oil as cargo on a voyage.

[CLAIM -IV]: ENIGMA IS NOT LIABLE TO PAY REPARATION OR

COMPENSATION TO MYSTERY

It is humbly submitted before this Hon’ble Court that Enigma is not liable to pay reparations
or compensation to Mystery as the act of OilCo is not attributable to the Enigma. Enigma’s
mere licencing OilCo does not establish clear nexus for the attribution of actions and
effective control over OilCo. Further, it is submitted that, Article 27 of the ARSIWA leaves
open the question of compensation for material loss despite a State’s invocation of necessity.
Also, ‘Pure’ environmental damages cannot be given and no admission to any responsibility
is made by the Enigma.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

ISSUE I:- THE HON’BLE ICJ HAS NO JURISDICTION TO ADJUDICATE

UPON THE PRESENT MATTER

It is humbly submitted before the Hon’ble International Court of Justice that this court
has no jurisdiction to adjudicate upon the present matter the reasons for which are two-fold in
nature, that firstly, The existence of a lex specialis arbitration agreement ousts the jurisdiction
of the Court [A], and secondly, The ICJ shall not institute proceedings without Riddle
Country being a party to the case [B].

A. THE EXISTENCE OF A LEX SPECIALIS ARBITRATION AGREEMENT OUSTS THE

JURISDICTION OF ICJ

It is humbly submitted before this Hon’ble Court that the existence of a lex specialis
arbitration agreement ousts the jurisdiction of the Court, the reasons of which are two-fold in
nature, that firstly, The Charter of the United Nations obliges the States to exhaust all means
of peaceful settlement [1], and secondly, Mystery is bound by the Treaty of 1924 to enter into
bilateral arbitration. [2].

1. The Charter of the United Nations obliges the States to exhaust all means of peaceful
settlement

It is humbly submitted that the UN Charter envisages a scenario where all disputes
would be peacefully resolved by the State parties.1 The means to achieve this end2 are forged
in Article 333 which casts a duty upon each State to resolve every dispute peacefully as well
as pacifically.4 The travaux préparatoires of the UN Charter5 reflect that it was a conscious
decision to list down the forms of peaceful means the State Parties are obliged to undergo.6
Further, the obligations of UN Charter supersede all other international obligations of States7

1
L. BOISSON DE CHAZOURNES & LEIDEN, DIPLOMATIC AND JUDICIAL MEANS OF DISPUTE SETTLEMENT, 2 (2012).
2
Id.
3
United Nations Charter art.33, Jun. 26, 1945, 892 U.N.T.S. 119.
4
Case Concerning Application of the International Convention on the Elimination of all forms of Racial
Discrimination (Georgia v. Russian Federation), 2011 I.C.J. Rep. 70 (April 1).
5
United Nations Documents on Conference on International Organization (UNCIO), UN Information
Organization (1945), https://digitallibrary.un.org/record/1300969/files/UNIO-Volume-6-E-F.pdf.
6
Id.
7
UN Charter, Supra note 3, art. 103.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

since only the UN Charter contains the provisions as to enforcement,8 without which a ‘law’
loses its meaning.9

2. Mystery is bound by the Treaty of 1924 to enter into bilateral arbitration

It is humbly submitted that Mystery is bound by the Treaty of 1924 to enter into
bilateral arbitration the reasons for which are three-fold, that firstly, special law prevails over
a general law (a), secondly, The ICJ promulgates the practice of bilateral arbitration (b), and
lastly, Mystery shall not be permitted to take an advantage of its own wrong (c).

a) Special law prevails over a general law

The maxim lex specialis derogat legi generali is a generally accepted technique of
interpretation and conflict resolution in international law.10 It suggests that whenever two or
more norms deal with the same subject matter, priority should be given to the norm that is more
specific.11 A special rule is more to the point than a general one and it regulates the matter
more effectively than general rules do.12 It is well understood that, in practice, rules of
general international law can, by agreement, be derogated from in particular cases or as
between particular parties.13 Arbitration agreements are lex specialis14 and shall therefore
prevail.15

8
See Id. Chapter VII.
9
J. AUSTIN, PROVINCE OF JURISPRUDENCE DETERMINED (1995).
10
Beagle Channel Arbitration (Argentina v Chile), 1979 ILR 52, ¶141; See also: Brannigan and McBride v The
United Kingdom, 1993 Eur. Ct. H.R. 258; De Jong, Baljet and van den Brink v the Netherlands, 1982 Eur. Ct.
H.R. Application no. 8805/79; 8806/79; 9242/81; Murray v the United Kingdom, 1994 Eur. Ct. H.R. 300, 37,
¶98; Nikolova v Bulgaria, 1999 Eur. Ct. H.R. (1999-II) 25, ¶69; Mavrommatis Palestine Concessions case
(Greece v Great Britain), Judgment, 1924 P.C.I.J. 2, 31 (Aug. 30).
11
INA Corporation v Government of the Islamic Republic of Iran ,1985 CTR 8 378; See also: Case Concerning
Military And Paramilitary Activities In And Against Nicaragua (Nicaragua v United States Of America),Merits,
1986 I.C.J. Rep. 14, ¶274 (June 27).
12
Martti Koskenniemi, The Function And Scope Of The Lex Specialis Rule And The Question Of Self-
Contained Regimes, Legal – UN (2019); Fragmentation Of International Law: Difficulties Arising From The
Diversification And Expansion Of International Law - Summaries Of The Work Of The International Law
Commission - International Law Commission’ (Legal.un.org, 2019),
http://legal.un.org/ilc/summaries/1_9.shtml.
13
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany
v Netherlands), 1969 I.C.J. Rep 3 42, ¶72 (February 20).
14
Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquaters Agreement of
26 June 1947, Advisory Opinion, 1988 I.C.J. Rep. 12 (April 26).
15
United States v. The Palestine Liberation Organization and Others, Southern District New York, 695 Fed.
Supp. 1456 (1988).

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

b) The ICJ promulgates the practice of bilateral arbitration

As is laid down in the UN Charter,16 the ICJ also favours bilateral arbitration
proceedings as an expedient mode of adjudication.17 Exhaustion of all forms of negotiation is
an essential to the invocation of the Court’s jurisdiction.18 Arbitration is also a form of
negotiation19 making it mandatory for the State parties to undergo the same before
approaching the court.20

c) Mystery shall not be permitted to take an advantage of its own wrong

Clean hands doctrine21 is a general principle of law recognized by civilized nations.22

It establishes that the State which seeks a remedy must come with clean hands.23 The State
which is wrong itself, loses the locus to stand before the court in the capacity of an ‘aggrieved
State’.24 In the present matter, Mystery is under an obligation vide Treaty of 192425 to enter
into arbitration. This obligation, alike all other, must be discharged with nothing but bona
fides.26 Therefore, by not agreeing to the institution of an arbitral tribunal, Mystery is
attempting to seek a benefit of its own wrong, which, as a matter of principle, shall never be
permitted27 lest the law loses its meaning.28

B. THE ICJ SHALL NOT INSTITUTE PROCEEDINGS WITHOUT RIDDLE COUNTRY BEING A
PARTY TO THE CASE

16
UN Charter, Supra note 3, art. 33.
17
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1950 I.C.J. Rep. 65
(July 18);see also: Advisory Opinion of 23 July 1923 (including the text of the joint declaration by Judge Weiss,
Judge Nyholm, Judge de Bustamante and Judge Altamira, 1923 P.C.I.J. Rep. (Ser. B, No. 5).; Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion (Second Phase), 1950 I.C.J. Rep. 221
(July 18); Ambatielos Case (Greece v. United Kingdom), 1952 I.C.J. Rep. 28 ( May 19); The Minquiers and
Ecrehos Case, 1953 I.C.J. Rep. 17–19; Case Concerning the Northern Cameroons (Cameroon v. United
Kingdom), Judgment, 1963 I.C.J. Rep. 15, ¶27 (December 02).
18
Land and Maritime boundary between Cameroon and Nigeria (Camroon v. Nigeria), 1998 I.C.J. Rep. 303,
¶56.
19
South West Afrrica Cases, (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objection, 1962
I.C.J. Rep. 319, p. 328 (December 21).
20
XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, 129 (2003).
21
Report of the International Law Commission, 57th Session, UN Doc A/60/10, ¶ 236.
22
Statute of the International Court of Justice art. 38(c), 33 UNTS 993.
23
Guyana v. Suriname Award, 2007 ICGJ 370 (PCA), ¶421 (September 17).
24
Military and Paramilitary Activities Supra note 11, at ¶ 392; See also: Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), Judgment, 2002 I.C.J. Rep. 3 ¶35 (February 14); Tehran
Hostages (United States v. Iran), 1980 I.C.J. Rep. 3.
25
Moot Proposition ¶18.
26
Vienna Convention on the Law of Treaties art. 26, opened for signature May 23, 1969, 1155 U.N.T.S. 331.
27
Riggs v. Palmer, 115 NY 506 (Court of Appeal of New York Judgment) (Oct. 8, 1889).
28
Id.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

It is humbly submitted before this Hon’ble Court that no proced0ings can be initiated
in this Court unless all appropriate parties are appearing in that matter before the Court.29
This is referred to as the monetary gold principle.30 Since OilCo has its headquarters in
Riddle Country,31 the liability of OilCo’s actions is upon Riddle and not Enigma.32 Therefore,
Riddle shall also be made a party to the proceedings before this Hon’ble Court,33 lest this
court shall not proceed.34

ISSUE II:- ENIGMA IS NOT LIABLE FOR THE ENVIRONMENTAL

CONSEQUENCES FOR THE ACTIONS OF OILCO.

It is humbly submitted before the Hon’ble this Court that Enigma is not liable for the
Environmental Consequences of the actions of OilCo, the reasons for which are two-fold in
nature, that firstly, Enigma is not responsible for the act of OilCo. [A], and secondly, The acts
of Enigma does not constitute a breach of an environmental obligation of the States [B].

A. ENIGMA IS NOT RESPONSIBLE FOR THE ACT OF OILCO.

It is humbly submitted that Enigma is not responsible for the act of OilCo, the
arguments for which are two-fold in nature, that firstly, Enigma did not direct or control
OilCo [1]; and secondly, OilCo’s negligence is not attributable to Enigma [2].

1. Enigma did not direct or control OilCo

It is submitted that, damages stemming from the oil leakage of the Hydro Drilling
Plant cannot be attributed to Enigma, because the plant was operated by a private
multinational corporation OilCo.35 A corporation’s acts can only be attributed to Enigma if
the corporation was an organ of the State,36 was exercising governmental authority,37 or was

29
Case of the Monetary Gold removed from Rome in 1943 (Italy v. France, United Kingdom of Great Britain
and Northern Ireland and United States of America), 1954 I.C.J. Rep 19 (June 15).
30
Id.
31
Moot Proposition ¶3.
32
Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) ,1970
I.C.J.Rep. 3,(February 5).
33
East Timor Case (Portugal v. Australia), 1995 I.C.J. Rep. 90, ¶101 (February 22).
34
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objection, 1992 I.C.J. Rep 240 (June
26).
35
Moot Proposition ¶3.
36
Articles on Responsibility of States for Internationally Wrongful Acts art. 8, Dec. 12, 2001, Supp. No. 10
A/56/10 [hereinafter ARSIWA]. See also: PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL
LAW (2d ed. 2003).
37
Id. Art. 5, 9.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

controlled by the State.38 International law does not generally treat private citizens and
corporations as agents of a State,39 and no evidence suggests that the OilCo operating
corporation was owned or controlled by the government of Enigma. Mystery’s attempt to
recover from the government of Enigma an alleged debt attributable to a private corporation
should be denied.

It is further submitted that, the damage was not internationally wrongful, because
Enigma and the plant operator properly applied due diligence in all phases of the construction
and operation of the Hydro Drilling plant. While a State has an undisputed duty to avoid
imposing damages on other States.40 Customary international law only imposes liability for
damages caused by a State’s failure to exercise due diligence.41

It is submitted that, the Enigma complied with its obligation to perform due diligence
in the siting and approval of the Oil Co by conducting its EIA prior to the commencement of
its exploration activities, and had obtained all necessary environmental permits.42 While
customary law only requires a state to perform due diligence according to its own national
standards.43

It is submitted that, Mystery seeks to impose liability on Enigma due to the mere fact
that Enigma constructed a Hydro drilling well near the States’ shoreline. Such a basis for
liability has never been recognized,44 and the international community continues to promote
the use of “safe and environmentally sound Oil Exploration Plants.”45 Enigma intended no
harm to Mystery, and damage from the oil slick fouling was completely contained.

2. OilCo’s negligence is not attributable to Enigma.

It is submitted that, Internationally wrongful acts of States arise when there is an act
or omission attributable to said State, which constitutes a breach of an international

38
Id. Art. 8.
39
UNITED NATIONS LEGISLATIVE SERIES, MATERIALS ON THE RESPONSIBILITY OF STATES FOR
INTERNATIONALLY WRONGFUL ACTS at 70, U.N. Doc. ST/LEG/SER B/25 (2012) [hereinafter ARSIWA
Commentary]; See also: Trail Smelter Arbitration case (US v. Canada) 3 RIAA 1905, ¶912 (Arb. Trib. 1941).
40
P.W. BIRNIE & A.E. BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, 469 (2nd ed. 2002); YASUHIRU
SHIGETA, INTERNATIONAL JUDICIAL CONTROL OF ENVIRONMENTAL PROTECTION 270- 71 (2010).
41
See BIRNIE & BOYLE, at 467-68; SHIGETA, at 271-72.
42
Moot Proposition ¶11.
43
SHIGETA, supra note 40, at 278-80.
44
BIRNIE & BOYLE, supra note 40, at 470.
45
Report of the United Nations Conference on Environment and Development Agenda 21 ¶ 39.7, (Vol. I-III)
1992, U.N. Doc. A/CONF.151/26 [hereinafter Rio Declaration]; Johannesburg Declaration, Report of the
World Summit on Sustainable Development 2, U.N. Doc. A/CONF.199/20 (2002).

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

obligation.46 Hence, conduct of private individuals or entities, not acting on behalf of the
State, is not considered as an act of the State under international law.47 Such conduct may be
attributed to the State if and only to the extent that it has acknowledged and adopted said
conduct as its own48, clearly and unequivocally.49

It is further submitted that, the negligence committed by OilCo through its employees
cannot be attributed to Enigma because it did not acknowledge nor adopt the conduct of
OilCo.50 It has consistently condemned the actions of OilCo and declared it as the party
responsible for the incident.51 Therefore, no action for damages will lie against Enigma.

B. THE ACTS OF ENIGMA DOES NOT CONSTITUTE A BREACH OF AN ENVIRONMENTAL

OBLIGATION OF THE STATES.

It is humbly submitted that the acts of Enigma does not constitute a breach of an
environmental obligation of the States, the arguments for which are four-fold in nature, that
firstly, such actions are in conformity with International Customary Laws [1]; secondly, there
is no violation of erga omnis norms [2]; thirdly, even assuming Enigma’s actions were in
violation of international law, the doctrine of necessity excuses those actions [3] and; lastly,
Enigma’s responses comply with standard procedure and general principles of international
law [4].

1. Such actions are in conformity with International Customary Laws.

It is humbly submitted that such actions are in conformity with International

Customary Laws, the arguments for which are two-fold in nature, that firstly, Enigma did not
cause transboundary harm to Mystery [a]; and secondly, Enigma did not violate
Precautionary Principle [b].

a) Enigma did not cause Transboundary harm to Mystery

It is submitted that, the transboundary harm is a customary rule.52 In order to

46
ARSIWA, supra note 36, art. 2.
47
Id. art.11.
48
ARSIWA, supra note 36, art. 2.
49
CRAWFORD, THE INTERNATIONAL COMMISSION’S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT
AND COMMENTARIES, 123 (2002).
50
Moot Proposition ¶13.
51
Id.
52
Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries, Art. 3,
2001 Y.B. on ILC, U.N. Sales No. A/56/10 [hereinafter APTH].

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

constitute a violation, the four conditions of human activity, physical relationship between
activity and damage, significant harm and transboundary transfer should be established.53

It is submitted that act of in-situ burning of oil had been necessary for the protection
of the spreading of the oil further.54 Enigma has not only stopped oil from further flowing
and damaging the forests of Mystery totally but also protected great number of marine life of
the sea. It is further submitted that there is no evidence55 which shows that there has been a
significant harm to the Mystery.

b) Enigma did not violate Precautionary Principle.

It is submitted that, Precautionary principle is an emerging principle of customary

international law.56 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 degradation.57 The
Precautionary Principle dictates that when there is a likelihood of significant harm to the
environment, States must act in accordance with the degree of the risk and their own
capabilities and priorities to mitigate or prevent this harm.58

It is submitted that Enigma has taken the full diligence in undertaking an EIA, prior to
the commencement of exploration activities of the Oil Co. Enigma had also followed the
standard measure to control the oil leak from flowing further toward the shoreline of Enigma
where nuclear power plant is been situated, which would have lead to a greater disaster, in
case not followed. In-situ burning is the best quickest and most cost-effective manner to
address such large oil spill which is accepted Internationally.59

2. There is no violation of erga omnus norms

It is submitted that, the ILC limits the coverage of the concept of erga-omnes to
“fundamental human rights deriving from general international law and not just from a treaty

53
O. SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE, 366-368 (1991).
54
WILLIAM D. WALTON, IN SITU BURNING OF OIL SPILLS, 68 (1999).
55
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010, I.C.J. Reports 2010, p.14, ¶204
(April 20) [hereinafter Pulp Mills Case].
56
James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy
for the Protection of the Global Environment, 4 14 B.C. Int'l & Comp. L. Rev. (1991).
57
N. Conference on Conference on Environment and Development, Rio Declaration on Environment and
Development, Principal 15, UN Doc. A/CONF.151/26 (vol. I) (Aug. 12, 1992).
58
Id.; see also: BIRNIE & BOYLE, supra note 40 at 120; SANDS, supra note 40 at 270.
59
Barnea Nir, Health and Safety Aspects of In-Situ Burning of Oil, National Oceanic and Atmospheric
Administration Seattle WA 98115 USA.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

regime”.60 The ICJ recognizes as erga-omnes obligations those concerning protection of

fundamental human rights, like genocide, slavery, torture, racial discrimination, and the right
to self-determination.61

It is submitted that, the only option that Enigma had, was to prevent the flowing of oil
towards the shoreline of Enigma where the nuclear power plant is situated.62 The standard
practice of in-situ burning during was an act of necessity and hence, does not constitute a
gross violation of environmental law and human rights.63 Not dispatching of rescue mission
would lead to a gross violation of human rights for the people of Enigma.

3. Even Assuming Enigma’s Actions Were In Violation Of International Law, The

Doctrine Of Necessity Excuses Those Actions.

It is submitted that, the doctrine of necessity excuses the wrongfulness of an act so

long as the act is the only way for a state “to safeguard an essential interest against a grave
and imminent peril”; and does not “seriously impair an essential interest” of another state or
of the international community.64 The circumstances surrounding Enigma meet both
conditions. Thus, even if the act damages the environment, the doctrine of necessity
precludes the wrongfulness of this act.

a) The In-situ burning was the only means to safeguard the Marine and Biodiversity
viability of Enigma and Mystery against grave and imminent peril.

It is humbly submitted that, in the Gabcikovo-Nagymaros Project case, the ICJ found
that an act is excused by necessity when; (a) the act “must have been occasioned by an
‘essential interest’” of the acting State; (b) that interest must have been threatened by a ‘grave
and imminent peril’; and (c) the act at issue “must have been the ‘only means’ of
safeguarding that interest.”65

It is further submitted that, Enigma’s survival is without question an essential interest.

60
Report of the International Law Commission on the work of its fifty-second session, 18 August 2000, Y.B.
Int’l L. Comm’n, 54 U.N. Doc. A/55/10, at 30 (2000).
61
Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain) ,1970
I.C.J.Rep. 3., ¶ 32( February 5).
62
Moot Proposition ¶1.
63
Evan Hamman, Katie Woolastin and Bridget Lewis, Legal Responses To Human-Wildlife Conflict: The
Precautionary Principle, Risk Analysis And The ‘Lethal Management’ Of Endangered Species, 7 IUCNAEL
E Journal 57,60 (2016).
64
ARSIWA, supra note 36, art. 25.
65
Case Concerning the Gabcikovo-Nagymaros Project (ungary/Slovakia) Gabcikovo-Nagymaros, Judgment,
I.C.J. Rep. 1997, p. 7 ¶ 52 (Sep. 25).

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

A State’s “essential interests” by definition include the existence of the state itself, its
economic survival, and the continued functioning of essential services.66 Enigma is a nuclear
country having existing nuclear plants, located near the shoreline where the oil accident
happened.67 If the oil accident would have affected the shoreline of Enigma where nuclear
power plant is situated then it could have lead to a greater disaster. A peril may be grave and
imminent even if it threatens long-term rather than immediate consequences.68 This could
have damaged the whole biodiversity as well the human life would have been also affected of
Enigma and Mystery. Therefore keeping in mind to avoid greater damage and keeping the
welfare of our own country, there was a necessity of doing in-situ burning.

It is submitted that, the second prong of the necessity doctrine requires a weighing of
the essential interest safeguarded by the acting State against the allegedly impinged-upon
interest of the complaining state.69 The relevant question is the proportion between the two
interests rather than absolute value.70 This prong supports Enigma’s claim of necessity. If
such necessary step of in-situ burning of oil would have not been taken by the Enigma then
the Enigma would have suffered huge environmental as well as humanity loss due to nuclear
explosion situated near the shoreline where the accident had happened. Mystery has suffered
nominal environmental loss which can be recovered by the passage of time. The survival of
the population and biodiversity of the Enigma, each several times larger than that of Mystery,
clearly outweighs the minor environmental loss faced by a small shoreline of Mystery.

b) Enigma did not contribute to the situation giving rise to the claim of necessity.

It is submitted that, the leakage of the oil from the oil rig cannot be attributed to
Enigma; the rig was privately owned and operated,71 and Enigma and the operator acted with
full due diligence in the rig’s construction, operation, and inspection. Nor did Enigma
contribute to the resulting explosion occurred in the oil rig near shoreline of the Enigma; this
act was necessitated by the Precautionary Principle. The Precautionary Principle dictates that
when there is a likelihood of significant harm to the environment, States must act in
accordance with the degree of the risk and their own capabilities and priorities to mitigate or

66
ARSIWA Commentary, supra note 39, at 202-03.
67
Moot Proposition ¶1.
68
Gabcikovo-Nagymaros Project, supra note 65 at ¶ 54.
69
ARSIWA Commentary, supra note 39, at 202-03.
70
Id.
71
Moot Proposition ¶3.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

prevent this harm.72 Enigma acted accordingly, as soon as OilCo informed the Enigma’s
environment department73, and thus cannot have contributed to the circumstances of
necessity.

4. Enigma’s responses comply with Standard Procedure and General Principles of

International Law.

It is humbly submitted that Enigma’s responses comply with ‘Standard Procedure’

and ‘General Principles of International Law,’ the arguments for which are two-fold in
nature, that firstly, Enigma complied with common but differentiated responsibility [a]; and
secondly, Enigma complied with the principle of good neighbourliness [b].

a) Enigma complied with Common but differentiated Responsibility

It is submitted that, the principle of ‘common but differentiated responsibility’ is

premised on the concept of equality.74 The applicability of standard which may be valid for a
developed country stands inappropriate and unwarranted social cost for the developing
country.75 The principle has been formulated in multilateral environmental conventions in
their wordings such as ‘as far as possible and appropriate’ action for States.76

It is submitted that, Enigma being a nuclear power based country and Mystery being a
renewable source based country , holds the ‘common but differentiated responsibilities and
respective capabilities in light of different national circumstances’.77 Hence the response of
Enigma was appropriate regarding the oil leakage.

b) Enigma complied with the principle of Good Neighbourliness.

It is submitted that, the principle requires closer attention, especially when the
neighbouring States share common resources.78 This principle requires the ‘duty to co-
operate’ by good faith consultation with potentially affected states by the actions of

72
Rio Declaration, Supra note 57, Principle 15; see also: BIRNIE & BOYLE, supra note 40 at 120; SANDS,
supra note 40 at 270.
73
Moot Proposition ¶12.
74
CISDL LEGAL BRIEF, The Principle of Common but Differentiated Responsibilities: Origins and Scope 1
http://cisdl.org/public/docs/news/brief_common.pdf.
75
Boyte, Common but Differentiated Responsibilities: Adjusting the Developing/Developed Dichotomy in
International Environmental Law, 14 N.Z. J. ENVTL. L. 63, 64 (2010).
76
Id.
77
United Nations Framework Convention on Climate Change art. 3(1), Jan. 20, 1994, U.N. Doc. A/RES/48/189
[hereinafter UNFCCC].
78
Sucharitkul, Sompong, The Principles of Good-Neighborliness in International Law, 559, Golden Gate
University School of Law GGU Law Digital Commons Publications (1996).

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

neighbouring State.79 Also, The acting state is bound to inform about the potential harm to
the affecting State.

It is submitted that, pursuant to this principle, respondents in good faith informed the
applicant about the leakage of oil and fire reaching to the shoreline of their country as soon as
the information reached to the respondent State.

ISSUE III:- ENIGMA HAS VIOLATED INTERNATIONAL LAW IN ITS

TREATMENT OF THE ENVIRONMENT.

It is humbly submitted before the Hon’ble International Court of Justice that Enigma
has not violated international law in its treatment of the environment in the instant case which
are three-fold in nature, that, Firstly, Enigma has acted in consonance with the principles
enshrined under the United Nations Convention on Law of the Sea, 1982 [A]; Secondly,
Enigma did not violate the principles enshrined under the Rio Declaration on Environment
and Development 1992 [B]; Thirdly, That Mystery cannot claim under IOPC Funds, Claims
Manual [C].

A. THAT ENIGMA HAS ACTED IN CONSONANCE WITH THE PRINCIPLES ENSHRINED UNDER
THE UNITED NATIONS CONVENTION ON LAW OF THE SEA 1982.

It is humbly submitted that the exclusive economic zone is shown by the practice of
states to have become a part of customary law.80 That under article 56,81 the coastal state in
the exclusive economic zone has complete sovereign rights for the purpose of exploring and
exploiting the natural resources of the waters superjacent to the seabed and of the sea bed
with regard to other activities for the economic exploitation and exploration of the zone, in
short there is an inherent right,82 the oil rig was installed at the exclusive economic zone to
undertake ultra deep water oil explorations within the EEZ to survey83 the hydrocarbons
reservoir available at EEZ.

It is further submitted that a coastal state have an exclusive right under article 60 to

79
Soto, Max Valverde, General Principles Of International Environmental Law, 3(1) ILSA Journal of
International & Comparative Law Article 194,197(1996).
80
Case Concerning the Continental Shelf (Libya Arab Jamahiriya/Malta), 1985 I.C.J. Rep. 33, ¶265 (June 3).
81
United Nation Convention on the Law of the Sea art. 56, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter
UNCLOS].
82
North Sea Continental Shelf Case (Federal Republic of Germany/ Denmark; Federal Republic of Gemarny/
Netherlands), 1969 I.C.J. Rep. 3, ¶22 (February 20); see also: Maritime Delimitation in the Black Sea (Romania
v. Ukarine), 2009 I.C.J. Rep. 61, ¶89 (February 3).
83
Moot Proposition ¶3.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

construct and to authorize and regulate the construction, operation and use of installations and
structures for the purpose provided for in article 56 and other economic purposes. With due
respect to the said provision, OilCo won a bid to set up a floating oil rig84 in the hope to
discover large amounts of oil sources which would take care of the future energy security.85

It is further contended that Enigma conducted lawful use of sea by setting up the oil
rig at the EEZ as it has freedom to do so under article 58 86 read with article 8787 which
enumerates the rights of the states in an exclusive economic zone88 It is thus most
respectfully submitted that Enigma has not violated the provision of UNCLOS for the lawful
use of exclusive economic zone.

B. THAT ENIGMA DID NOT VIOLATE THE PRINCIPLES ENSHRINED UNDER THE RIO
DECLARATION ON ENVIRONMENT AND DEVELOPMENT 1992.

It is most humbly submitted that Enigma has not violated the principles enshrined
under the Rio Declaration as it has not violated the principle 2 89 of the Rio Declaration which
enumerates the right to exploit the resources within a country but should not harm the other
neighbouring States, as the floating oil rig was installed only to undertake ultra deep water oil
exploration within the EEZ.90 Such exploration was only done with a view to survey the
hydrocarbon reservoir91 and was it was temporarily sealed using cement casings and various
other multiple barriers, to ensure that there would be no hydrocarbon flow, until OilCo would
revisit the hydra well at a later stage.92

It is further submitted that Enigma has not violated the principle 17 of the Rio
declaration which enumerates that environmental impact assessment shall be undertaken as a
national instrument for proposed activities that are likely to have a significant adverse impact
on the environment and are subject to a decision of a national authority, as OilCo has
undertaken an EIA prior to the commencement of its exploration activities, and had obtained
all necessary environmental permits,93 Which was subjected to a decision of a national

84
Id.
85
Id. at ¶2.
86
UNCLOS, supra note 81, Art. 58.
87
See Id. Art. 87.
88
MALCOLM N SHAW, INTERNATIONAL LAW, 424 (7th Ed 2017).
89
Rio Declaration, Supra Note 57, Principle 2.
90
Moot Proposition ¶3.
91
Id.
92
Id.
93
See Id.at ¶11.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

authority i.e. Enigma itself.

Further, it is respectfully submitted that Enigma has not violated the principle 1894 of
the Rio Declaration which enumerates that the requirement to notify other States in case of
emergency, as Enigma did fulfil its duty by informing Mystery once the fires crossed the
borders,95also as it could not be foreseen with scientific accuracy that the fires will, indeed
cross their borders.96 Moreover OilCo informed its Enigma’s Environment Department only
after two days, and, hence the delay in notification was not due to bad faith and by that time
Mystery’s Ecology Department was already aware of the situation.97

It is further submitted that the principle 1998 of the Rio Declaration has not been
violated, which casts an obligation on states to notify and consult each other in case they plan
to engage in an activity that may cause significant adverse transboundry effects and makes it
obligatory to provide prior and timely notification, the provision is incumbent only when
there is actual threat of transboundary harm, as in the instant case oil rig was only installed
with an objective to survey and explore the hydrocarbon reservoir and had no significant
adverse transboundary effect to just carry out survey of natural resources within the EEZ.99
Thus owing to the above arguments Enigma claims that it has not violated the principles
enshrined under the Rio Declaration.

C. THAT MYSTERY CANNOT CLAIM UNDER IOPC FUNDS, CLAIMS MANUAL.

It is most respectfully submitted that Mystery cannot claim under IOPC Funds,
Claims manual,100 as the International Convention on Civil Liability for Oil Pollution
Damage, 1992,101 was developed after the Torrrey Canyon102 oil spill case which defines a
ship under Article 1103 as;

“Ship” means any sea-going vessel and seaborne craft of any type
whatsoever constructed or adapted for the carriage of oil in bulk as cargo,

94
Rio Declaration, Supra Note 57, Principle 18.
95
Moot Proposition ¶12.
96
Id.
97
Id.
98
Rio Declaration, Supra Note 57, Principle 19.
99
Moot Proposition ¶2.
100
Manual, International Oil Pollution Compensation Funds 1992, http://www.iopcfund.org/.
101
International Convention on Civil Liability for Oil Pollution Damage art. 1, 27 November 1992, U.N.T.S.
Vol. No. 973 (p.3) [hereinafter CLC Convention].
102
Paul Burrows, Charles Rowley and David Owen, Torrey Canyon: A Case Study in Accidental Pollution,
Scottish Journal of Political Economy Vol. XXI, 3 (1974).
103
CLC Convention, supra note 101, Art. 1.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

provided that a ship capable of carrying oil and other cargoes shall be
regarded as a ship only when it is actually carrying oil in bulk as cargo and
during any voyage following such carriage unless it is proved that it has no
residues of such carriage of oil in bulk aboard.”

The IOPC funds regulate the ships and ship owners, the definition of the ship under
the Article 1 of CLC makes it very clear that a vessel to fulfil the conditions of a ship must
carry oil in bulk as cargo during any voyage, the oil rig by the virtue of it being not able to
carry oil in bulk and was not in voyage at sea cannot be termed as ship.

It is lastly submitted that the oil rig was only installed for the purpose of survey and
exploration104 only and does not fit in the definition of a ship under the above provision,
therefore Enigma is not liable under the IOPC funds claim owing to the above mentioned
arguments.

ISSUE IV:- ENIGMA IS NOT LIABLE TO PAY REPARATIONS OR

COMPENSATION TO MYSTERY

It is humbly submitted before the Hon’ble this Court that Enigma is not liable to pay
reparations or compensation to Mystery, the reasons for which are five-fold in nature, that
firstly, Acts of OilCo is not attributable to the Enigma. [A]; secondly, That, the invocation of
necessity does not require compensation [B]; thirdly, Pure environmental damages shall not
be granted to Mystery [C]; fourthly, Mystery is not liable to pay exemplary damages[D] and;
lastly, Enigma is not liable to satisfy Mystery[E].

A. ACTS OF OILCO IS NOT ATTRIBUTABLE TO THE ENIGMA.

States are only responsible for its own conduct105 or the conduct of entities acting on
its behalf.106 In this instance, Oilco has won a bid,107 that too merely for survey.108 Effective
control upon each action needs to be established in order to establish any liability upon
Enigma. In Nicaragua, where the United States’ planning, directing, and supporting of the
Contras were held inadequate to meet the high threshold for effective control.109 Similarly,

104
Moot Proposition ¶3.
105
ARSIWA, supra note 36, art. 1.
106
IAN BROWNLIE, SYSTEM OF THE LAW OF NATIONS: STATE RESPONSIBILITY, 132-166 (1983).
107
Moot Proposition ¶3.
108
Id.
109
Military and Paramilitary Activities Supra note 11, at ¶109,¶115.

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

Enigma’s mere licensing of OilCo establishes no clear nexus for attribution of actions110 and
effective control over OilCo.111 Therefore, Enigma cannot be said to have been liable for the
environmental consequences of drilling by OilCo112 as responsibility arises only when the
action can be directly linked to the State.113

B. THAT, THE INVOCATION OF NECESSITY DOES NOT REQUIRE COMPENSATION.

Article 27 leaves open the question of compensation for material loss despite a State’s
invocation of necessity, but this Court is not the proper place for the formulation of an
answer.114 The record is silent as to Mystery’s material losses as well as Enigma’s capacity to
pay, if any, and so this tribunal cannot properly decide the question of compensation.
Enigma’s actions were motivated by necessity, which precludes any wrongfulness.
Accordingly, Enigma has no legal obligation to compensate Mystery.

C. PURE ENVIRONMENTAL DAMAGES SHALL NOT BE GRANTED TO MYSTERY.

Pure environmental damages115 sought by Mystery shall not be granted by this Court
as it is impossible to calculate appealing value of anything due to high level of subjectivity.
The ICJ has always been reluctant in granting pure environmental damages116 and has further
warned about the problems associated with the same.117 IOPC Funds118 to which both the
states are parties to119 clearly lay down that no compensation shall be granted for pure
environmental damages.120

D. MYSTERY IS NOT LIABLE TO PAY EXEMPLARY DAMAGES

Damages can be sought for any grievances suffered by a State.121 These damages,

110
Declaration of the United Nations Conference on the Human Environment Principal 17, 16 June 1972, 11
ILM 1416; ARSIWA, supra note 36, art..5¶(5),(7).
111
See Id. at art..8.
112
Moot Proposition ¶4.
113
ARSIWA, supra note 36, art. 5, art. 8.
114
See Id. art. 27.
115
certain activities (sep. op. donoghue), p.85.
116
Corfu Channel (United Kingdom v. Albania), Judgment, Merits, 1949 I.C.J. Rep. 4, ¶26 (April 9).
117
Id.
118
International Oil Pollution Compensation Funds 1992, http://www.iopcfund.org/.
119
Moot Proposition ¶17.
120
Guidelines for Presenting Claims for Environmental Damage, 1.14 (2018).
121
Charzow Factory case(Germany v Poland), Judgment, Claim for Indemnity, Merits, 1928 PCIJ Series A No
17, (September 13).

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MEMORANDUM for RESPONDENTS [ARGUMENTS ADVANCED]

however, shall be calculated on intrinsic value122 of the loss. Damages of an amount higher
than what is suffered cannot be granted as it violates the principle of sovereign equality123
since exemplariness implies retribution, and retribution implies penalisation.124 Amongst two
equals, one does not have the right to punish the other, but seek of him what he has lost.125

E. ENIGMA IS NOT LIABLE TO SATISFY MYSTERY

Enigma did not admit to any responsibility for the damage suffered by Mystery.
Instead, it has consistently pointed to OilCo as the responsible party. 126 The totality of these
declarations,127 considered in light of the circumstances, does not amount to a unilateral act of
undertaking to compensate Mystery for its losses, but to make OilCo pay in accordance with
the laws of Enigma, where the actual remedy lies.

122
Case concerning the difference between New Zealand and France concerning the implementation or
application of two agreements concluded on 9 July 1986 between the two States and which related to the
problems arising from the Rainbow Warrior Affair, Reports of International Arbitral Awards, Vol. XX (1990),
p. 215, ¶75 (Apr. 30, 1990).
123
UN Charter, supra note 3, art. 2(1).
124
MALCOLM N SHAW, INTERNATIONAL LAW, 609 (8th Ed 2017).
125
Id.
126
Moot Proposition ¶13.
127
Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations,
Yearbook of the International Law Commission, 2006, vol. II, Part Two (2006) (GPUD).

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MEMORANDUM for RESPONDENTS [PRAYER]

PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced, and authorities
cited; Enigma humbly prays that the Hon’ble International Court of Justice may be pleased
to:
Declare:
a. That this Hon’ble Court lacks the jurisdiction to adjudicate upon the present matter
Decide:

b. That an arbitral tribunal shall be constituted to adjudicate the claims between the
parties

if not for the aforesaid

Decide:

a. that Enigma is not liable for the environmental consequences of the actions of OilCo.

Declare:
b. that Enigma has not violated any principles of International Law in its treatment of the
environment.

Adjudicate:
c. that Enigma is not liable to pay any compensation in any form to Mystery.

And/or
Pass any such order or judgment as this Hon’ble Court may deem fit in the light of the
sources of law enshrined in Article 38(1) of this Hon’ble Court’s Statute.
And for this act of kindness, the Respondent State shall forever be duty bound.

Sd/-
AGENTS FOR THE RESPONDENT STATE

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