TEAM CODE: T24A

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 APPLICANTS

MEMORANDUM for APPLICANT [TABLE OF CONTENTS]

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ______________________________________________ III

INDEX OF AUTHORITIES _______________________________________________ VI

STATEMENT OF JURISDICTION ________________________________________ XIV

STATEMENT OF FACTS _________________________________________________ XV

CLAIMS RAISED ______________________________________________________ XVI

SUMMARY OF ARGUMENTS __________________________________________ XVII

ARGUMENTS ADVANCED _________________________________________________ 1

ISSUE I:- THE HON’BLE INTERNATIONAL COURT OF JUSTICE HAS THE

JURISDICTION TO HEAR THE PRESENT MATTER ................................................. 1

A. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION FORUM

PROROGATUM...................................................................................................................... 1

B. THE INTERNATIONAL COURT OF JUSTICE HAS COMPULSORY JURISDICTION OVER

THE PRESENT MATTER ....................................................................................................... 2

C. THE RULE OF RES SUB-JUDICE PROHIBITS ANY OTHER FORUM TO HEAR THE

PRESENT MATTER ............................................................................................................... 2

D. THE NON-ULTRA PETITA RULE RENDERS THE LATTER JURISDICTIONAL

CONTENTIONS OF THE RESPONDENT STATE INADMISSIBLE ............................................. 3

ISSUE II:- ENIGMA IS LIABLE FOR THE ENVIRONMENTAL

CONSEQUENCES OF THE ACTIONS OF OIL CO. ...................................................... 3

A. OILCO’S ACTION IS ATTRIBUTABLE TO ENIGMA UNDER ARTICLE 8 OF ARSIWA.. 4

B. SUCH ACTIONS AND OMISSIONS ARE NOT IN CONFORMITY WITH CUSTOMARY

INTERNATIONAL LAWS. ..................................................................................................... 5

1. Enigma has caused Transboundary harm to Mystery ............................................. 5

a) Enigma has violated Procedural Obligation ____________________________ 5

(i) The breach of the obligation to consult after carrying out an environmental
impact assessment__________________________________________________ 6
(ii) The breach of an obligation to notify and consult ______________________ 7

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MEMORANDUM for APPLICANT [TABLE OF CONTENTS]

b) Enigma has violated Substantial Obligation ____________________________ 8

2. Enigma has violated the Precautionary Principle .................................................. 8

C. ENIGMA’S ACTION OF OIL SPILLING AND PUTTING FIRE ON THE SEA IS A

VIOLATION OF ERGA OMNES NORMS ................................................................................ 9

D. ENIGMA’S ACTION DOES NOT PRECLUDED DUE TO NECESSITY................................. 9

ISSUE III:- ENIGMA HAS VIOLATED INTERNATIONAL LAW IN ITS

TREATMENT OF THE ENVIRONMENT. .................................................................... 10

A. THAT ENIGMA HAS VIOLATED THE PRINCIPLES ENSHRINED UNDER THE RIO
DECLARATION ON ENVIRONMENT AND DEVELOPMENT 1992 ........................................ 10

1. That Enigma failed to notify Mystery about the accident. ..................................... 11

2. That Enigma has violated the principle of intergenerational equity in its treatment
of the environment......................................................................................................... 12

B. THAT ENIGMA HAS VIOLATED THE PRINCIPLES OF THE UNITED NATIONS

CONVENTION ON LAW OF THE SEA, 1982 ....................................................................... 12

C. THAT ENIGMA HAS VIOLATED THE PRINCIPLES ENSHRINED UNDER UNFCCC ..... 13

D. THAT ENIGMA HAS VIOLATED THE PRINCIPLES ENSHRINED UNDER SOLAS ......... 14

ISSUE IV:- ENIGMA IS LIABLE TO PAY REPARATION AND THE QUANTUM OF SUCH

REPARATION SHALL BE GIVEN TO THE MYSTERY............................................................... 14

A. ENIGMA IS LIABLE TO PAY THE REPARATION FOR THE DAMAGES OCCURRED AS A

RESULT OF OIL SPILL ........................................................................................................ 15

1. Enigma is liable for Pure Environmental Damages .............................................. 15

2. Enigma is liable for loss of well being and post traumatic stress ......................... 16

3. Enigma is liable to pay Exemplary damages for deterrence ................................. 16

B. ENIGMA IS LIABLE TO PAY COMPENSATION FOR THE LOSS OF ECOLOGY AND

BIODIVERSITY .................................................................................................................. 16

C. ENIGMA IS LIABLE TO ENSURE SATISFACTION ........................................................ 17

PRAYER ______________________________________________________________ XIX

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MEMORANDUM for APPLICANT [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

GAOR General Assembly Official Records

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MEMORANDUM for APPLICANT [LIST OF ABBREVIATIONS]

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

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

Ramsar Convention on Wetlands of International Importance,

especially as Waterfowl Habitat, 1971

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MEMORANDUM for APPLICANT [LIST OF ABBREVIATIONS]

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 APPLICANT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

I.C.J. CASE LAWS PAGE NO.

Aegan Sea Continental Shelf Case (Greece v. Turkey), 1978 I.C.J., Rep. 3 2

Aerial Incident of 10 August 1999 (Pak. v. India), 2000 I.C.J. 12 (June 21.) 2

Anglo-Iranian Oil Company case, Jurisdiction, 1952 I.C.J. Rep. 114 (Jul. 22). 1

Arrest Warrant of 11 April 2000 (DRC v. Bel.), Judgment, 2002 I.C.J. 3

Rep.18.

Case Concerning Delimitation of the Maritime Boundary in the Gulf of 2

Maine Area (Canada v United States of America), 1984 I.C.J. 246 ¶130

Case concerning the difference between New Zealand and France concerning 15
the implementation or application of two agreements concluded on 9 July
1986 between the two

Case Concerning the Gabcikovo-Nagymaros Project (ungary/Slovakia) 9

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

Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) 1961 2

I.C.J (May 26)

Case Concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 2

1973 I.C.J. Rep. 347 (Dec. 15)

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

Corfu Channel (United Kingdom v. Albania), Judgment, Assessment of the 16

Amount of Compensation due from the People’s Republic of Albania to the
United Kingdom of Great Britain and Northern Ireland, 1949 I.C.J. Rep. 244
(Dec. 15)

Corfu Channel (United Kingdom v. Albania), Judgment, Merits, 1949 I.C.J. 3

Rep. 4, ¶26 (April 9)

Effect of Awards of Compensation Made by the United Nations 2

Administrative Tribunal, 3 1954 ICJ Rep. 47 (Jul 13)

Legality of the Threat or use of Nuclear Weapons, Advisory Opinion, 1996 12

I.C.J. Rep. 226 ¶29 (Jul. 8).

Oil Platforms (Iran v. USA), 2003 ICJ Rep. 161, ¶271 3

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010, 5

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

Qatar v. Bahrain case, 2001 ICJ Rep. 40, ¶¶96–97. 3

Request for the Interpretation of the Judgment in the Asylum Case, 1950 ICJ 3
Rep. 395

Territorial and Maritime Dispute (Nicaragua v Colombia), 2011 ICJ Rep 18 2

(Dec. 11), ¶3.

Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), 1

Judgment, 2014 I.C.J. Rep. 226.

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

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

Case Concerning the Factory at Chorzow (Claim For Indemnity), Jurisdiction 15

Judgment, 1927, P.C.I.J. Series A, No. 9, ¶ 21.

Mavromattis Palestine Concessions, Judgment No.2, 1924, P.C.I.J, Series A, 1

No.2

Rights of Minorities in Upper Silesia (Minority Schools), Judgment no. 12, 1

1928, P.C.I.J., Series A, No.15, p.24.

OTHER CASE LAWS PAGE NO.

/V Saiga (No. 2) Case (St. Vincent and the Grenadines v. Guinea), Case No. 14
2, Order of Jan. 20, 1998, 2 ITLOS Rep. 4,5 ¶171

AMCO v. Republic of Indonesia, 89 ILR, pp. 366, 558 2

Case concerning Land Reclamation by Singapore in and around the Straits of 6

Johor (Malaysia v. Singapore), Provisional Measures, ITLOS No. 12, ¶96
(2003).

Charles S. Stephens and Bowman Stephens (U.S.A.) v. United Mexican 4

States, Sales No. 1951.V.1, UNRIAA, vol. IV, pg. 267 (Jul. 15, 1927)

D. Earnshaw and Others (Great Britain) v. United States, Sales No. 1955.V.3, 4
, UNRIAA, vol. VI, Pg. 160

Foremost Tehran, Inc. v. The Government of the Islamic Republic of Iran, 4

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

IUSCT Case Nos. 37, Award No. 220-37/231-1,¶ 228 (Apr. 11, 1986).

Lake Lanoux Arbitration (France v. Spain) 12 R.I.A.A. 281 ¶ 22 (1957). 7

Leo Hertzberg et al. v. Finland, Communication No. 61/1979, U.N. Doc. 4

CCPR/C/OP/1 at 124, Supplement No. 40 (A/37/40), ¶9.1 (Apr. 02, 1982).

Phillips Petroleum Company Iran v. The Islamic Republic of Iran, IUSCT 4

Case No. 39, Award No. 425-39-2, ¶79 (Jun. 29, 1989).

Prosecutor v. Duško Tadić, Case No. IT-94–1-A, Judgment, ¶117 (Nov. 11, 4
1999).

Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), Provisional 6

Measures, ITLOS Nos. 3&4, ¶79

The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, 6

ITLOS No. 10, (2001)

Trail Smelter Arbitration case (US v. Canada) 3 RIAA 1905, (Arb. Trib. 12
1941).

X v. Ireland, Yearbook of the European Convention on Human Rights, 5

Application No. 4125/69, ¶199, (1973)

Young, James and Webster v. the United Kingdom, Eur. Court H.R., Series 5
A, No. 44 (1981).

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

STATUTES, TREATIES & CONVENTIONS PAGE NO.

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

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

Convention on Biological Diversity of 1992, art. 14, U.N. Doc. 1760 6

U.N.T.S. 69, (Jun. 5, 1992).

Convention on Wetlands of International importance especially as Waterfowl 7

Habitat, Preamble, 2 February 1971, 996 U.N.T.S 245

Draft articles on Prevention of Transboundary Harm from Hazardous 6

Activities, with commentaries, Art. 1, 2(a), 7, 2001 Y.B. on ILC, U.N. Sales
No. A/56/10

Draft Principles on Allocation of Laws in the case of Trans Boundary Harm, 8

Principle 2(a)(ii)

Statute of the International Court of Justice art. 36(5), 33 UNTS 993 2

U.N. Conference on Conference on Environment and Development, Rio 6

Declaration on Environment and Development, Principal 17, UN Doc.
A/CONF.151/26 (vol. I) (Aug. 12, 1992).

UNCCC, Report on the Fifth Instalment of F4 Claims, op. cit., ¶103-118, 15

U.N. Doc. S/AC.26/2001/16, EM, Vol. II, Annex 35

United Nation Convention on the Law of the Sea art. 206, Dec. 10, 1982, 6
1833 U.N.T.S. 397

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

United Nations Charter art.2 , Jun. 26, 1945, 892 U.N.T.S. 119; Vienna 7
Convention on the Law of Treaties art. 23, 31(1), opened for signature May
23, 1969, 1155 U.N.T.S. 331.

United Nations Framework Convention on Climate Change art. 3(1), Jan. 20, 13
1994, U.N. Doc. A/RES/48/189

United Nations Security Council, Resolution 687, 2981st Meeting, U.N. Doc. 15
S/RES/687, ¶16 (1991).

United Nations, Convention on Environmental Impact Assessment in a 6

Transboundary Context, art. 5, Treaty Series vol. 1989, p. 309,
C.N.443.2014.Treaties-XXVII.4 of 11 August 2014 (Sept. 10, 1997)

ARTICLES AND JOURNALS PAGE NO.

E Brown Weiss, Our Rights and Obligations for Future Generation for the 12
Environment 84, American Journal of Environment Law, 198 (1990).

G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 3

Cambridge, 1986, vol. I, p. 183

James Cameron & Juli Abouchar, The Precautionary Principle: A 8

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

M. Virally, Review essay: good faith in public international law, 77 7

AJIL,130 (1983)

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

R. Y. Jennings, The Acquisition of Territory in International Law, 2

Manchester University Press (1963)

Robert D. Sloane, On The Use And Abuse Of Necessity In The Law Of State 9
Responsibility, 106 American Journal of International Law 447,473 (2012).

Roman Boed , State of Necessity as a Justification for Internationally 9

Wrongful Conduct, 3 Yale Hum. Rts. & Dev. L.J 4 (1 Feb 18,2014,)

BOOKS PAGE NO.

BARBARA J. LAUSCHE, WEAVING A WEB OF ENVIRONMENTAL LAW: 7

CONTRIBUTIONS OF THE IUCN ENVIRONMENTAL LAW PROGRAMME, 169
(2008)

DAVID CARON AND HARRY SCHEIBER BRINGING NEW LAW TO OCEAN 8

WATERS, 359 (2004

DINAH SHELTON, INTERNATIONAL COOPERATION ON SHARED NATURAL 7

RESOURCES IN SHARED RESOURCES: ISSUES OF GOVERNANCE, 72 IUCN
ENVIRONMENTAL LAW AND POLICY 1

ELLEN HEY, ADVANCED INTRODUCTION TO INTERNATIONAL ENVIRONMENT 10

LAW 71 (2016).

M. RAMAN, DISPUTE SETTLEMENT THROUGH THE UNITED NATIONS, 1977 (5th 2

Ed. 2011).

MARTIN DIXON, ROBERT MCCORQUODALE & SARAH WILLIAMS, CASES AND 10

MATERIAL ON ENVIRONMENT LAW, 452 (5th Ed., 2011)

PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 472- 9

73 (Cambridge University Press, 2003)

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MEMORANDUM for APPLICANT [INDEX OF AUTHORITIES]

SHABTAI ROSENNE. THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1

1920(2005); JURISDICTION, 675 (4th Ed., Martinus Nijhoff Publishers, 2006)

UNITED NATIONS LEGISLATIVE SERIES, MATERIALS ON THE RESPONSIBILITY 4

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

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, 102 3

(2003)

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MEMORANDUM for APPLICANT [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.

IN THE INTERNATIOANL COURT OF JUSTICE

PEACE PALACE, THE HAGUE
NETHERLANDS

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MEMORANDUM for APPLICANT [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.

THE OIL SPILL

On 2nd March 2018, an explosion occurred on the oil rig, it is transpired that the event
happened because the oil rig was not sufficiently sealed and triggered a series of events
leading to uncontrolled pouring of oil, it was estimated that 2 million oil barrels would pour
for 60 days. At the time of the event the oil rig was situated 250km away from the coast of
Mystery. Most affected areas at the Mystery Coast Consist of valuable and protected wetland
areas. Response measure adopted by Enigma was putting fire to the Oil drifting on the sea to
stop the further flow. Enigma did not notify Mystery of the expanding Oil leakage in their
territorial waters. The forest fires lead to loss of protected trees and the fire which was
torched on the Drifting Oil lead killing of Marine Animals. Enigma never shared the EIA
Report conducted by them. It was the Marine Ecology Department of Mystery which
informed the Government about the oil leak after two days of the incident.

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 was however challenged by Enigma to which ICJ already issued an order addressing this
argument and confirmed its Jurisdiction.

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MEMORANDUM for APPLICANT [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 APPLICANT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

[CLAIM -I]: THE HON’BLE INTERNATIONAL COURT OF JUSTICE HAS THE

JURISDICTION TO HEAR THE PRESENT MATTER

It is humbly contended before the Hon’ble International Court of Justice that this Court has
jurisdiction Forum Prorogatum to adjudicate upon the present matter. ICJ further exercises
compulsory jurisdiction in the instant matter as well. Further, that the pre-conditions attached
to the invocation of this Hon’ble Court’s jurisdiction have been met in their entirety.
Furthermore, that the doctrines of Res sub-judice and Res judicata prohibit any other
International forum to hear the present matter. Lastly, that the non-ultrapetita rule renders the
latter jurisdictional submissions of the Respondent State inadmissible.

[CLAIM -II]: ENIGMA IS LIABLE FOR THE ENVIRONMENTAL

CONSEQUENCES OF THE ACTIONS OF OILCO.

It is humbly contended before this Hon’ble Court that, in the present matter, actions of the
OilCo are attributable to Enigma as OilCo was working under the direction of Enigma and it
has caused sufficient harm to the marine life and birds due to oil spill from the oil rig.
Further, Enigma has given the orders to set the oil on fire within sea which has caused
transboundary harm to the Mystery.

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

TREATMENT OF THE ENVIRONMENT.
It is humbly contended on behalf of Mystery that Enigma is legally obligated to abide by the
International Law in its treatment of the environment. This is because firstly, Enigma has
violated the principles and has failed to notify Mystery of the imminent harm caused by the
oil rig enshrined under the Rio Declaration on Environment and Development, 1992;
Secondly, Enigma has violated the principles of the United Nations Convention on Law of
the Sea, 1982 by endangering the species of thousands of marine animals and has also failed
to notify Mystery of the assessment conducted; thirdly, Enigma has violated the principles of
sustainable development by causing grievous harm to the climate and thereby causing climate
change under the United Nations Framework Convention on Climate Change, 1992;
Fourthly, Enigma has violated the principles enshrined under the International Convention
for the Safety of Life at Sea, 1974 in its treatment of the environment and has caused

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MEMORANDUM for APPLICANT [SUMMARY OF ARGUMENTS]

grievous harm to the marine environment by setting up fire to the oil and thereby killing
marine animals.

[CLAIM IV]: WHETHER ENIGMA IS LIABLE TO PAY REPARATION.

It is humbly submitted before this Hon’ble Court that, Enigma is liable to pay reparation to
the Mystery for the Transboundary Harm and the damage caused. It is argued that Enigma is
liable to pay monetary compensation for the act of environmental damages on the land of
Mystery as well as for the loss of ecological services which cannot be restored instantly.
Mystery has lost Forest, Biodiversity, Wetland which has Aesthetic as well as commercial
value, hence Enigma is liable for the ‘Pure’ Environmental Damages. Along with the
Compensation, Enigma shall ensure the satisfaction for the injury caused by the act.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

ISSUE I:- THE HON’BLE INTERNATIONAL COURT OF JUSTICE HAS THE

JURISDICTION TO HEAR THE PRESENT MATTER

(¶ 1.) It is humbly submitted before the Hon’ble International Court of Justice that this
Hon’ble Court has the jurisdiction to hear the present matter for reasons which are five-fold in
nature, that firstly, The International Court of Justice has jurisdiction forum prorogatum [A],
secondly, The international court of justice has compulsory jurisdiction over the present
matter [B], thirdly, The pre-conditions attached to invoking this Hon’ble Court’s Jurisdiction
have not been met [C], Fourthly, The rule of res sub-judice prohibits any other forum to hear
the present matter [D], and lastly, The non-ultra petita rule renders the latter jurisdictional
submissions of the Respondent State inadmissible[E].

A. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION FORUM PROROGATUM

(¶ 2.) It is humbly submitted before the Hon’ble International Court of Justice that this
Hon’ble Court has jurisdiction forum prorogatum. Consent is an absolute necessity for
invocation of this Hon’ble Court’s jurisdiction,1 but there are multiple ways to obtain such
consent.2 One of these means is by the conduct of the respondent State,3 which is referred to
as Forum Prorogatum.4

(¶ 3.) This doctrine has evolved from the practice of PCIJ5 and was later adopted by the
court.6 This Hon’ble Court has held in a plethora of cases,7 the multiple forms of obtaining
consent,8 one of which is the conduct of the Respondent State.9 It is undisputed that Enigma

1
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, 2014 I.C.J. Rep. 226.
2
Nottebohm case (Liechtenstein v. Guatemala), Judgment, 1953 I.C.J. Rep. 1953, pp. 115-116 (November 18).
3
Rights of Minorities in Upper Silesia (Minority Schools), Judgment no. 12, 1928, P.C.I.J., Series A, No.15,
p.24.
4
Article 38, Statute of ICJ.
5
Mavromattis Palestine Concessions, Judgment No.2, 1924 P.C.I.J, Series A, No.2; see also: SHABTAI
ROSENNE. THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920(2005); JURISDICTION, 675 (4th Ed.,
Martinus Nijhoff Publishers, 2006).
6
Anglo-Iranian Oil Company case, Jurisdiction, 1952 I.C.J. Rep. 114 (Jul. 22).
7
Corfu Channel (United Kingdom v. Albania), Judgment, Merits, 1949 I.C.J. Rep. 4, ¶26 (April 9); see also:
Passage through the Great belt (Finland v. Denmark), Provisional Measures, 1991 I.C.J. Rep. 20, ¶35 (July 29);
North Sea Continental Shelf (Germany v. Denmark/Netherlands), Pleadings, Oral Arguments,Vol.-I, 1968.
8
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v. Malaysia), Judgment, 2002 I.C.J. Rep. 630, ¶2
(October 23).
9
Treatment in Hungary of Aircraft and Crew of the USA Case (USA v. USSR), Judgment, 1954 I.C.J. Rep. 99,
¶103 (July 12).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

has agreed to the compulsory jurisdiction of the court,10 and the court has further made orders
as to jurisdiction.11 It is therefore evident from such conduct and the existence of a
compromise between the parties,12that the Respondent State has acquiesced and accorded13 to
the acceptance of this Hon’ble Court’s jurisdiction, which now has a binding effect upon it.14

B. THE INTERNATIONAL COURT OF JUSTICE HAS COMPULSORY JURISDICTION OVER THE

PRESENT MATTER

(¶ 4.) It is submitted before the Hon’ble International Court of Justice that this Hon’ble
Court has the compulsory jurisdiction to hear the present matter which has a binding effect on
the respondent State. After the coming into force of the UN Charter,15 all matters which were
to be referred to the PCIJ16 or any other tribunal17 to be constituted under the provisions of
the Statute of League of Nations18 by means of any special agreements19 whether regional or
otherwise,20 shall only be referred to the ICJ and no other forums.21

C. THE RULE OF RES SUB-JUDICE PROHIBITS ANY OTHER FORUM TO HEAR THE PRESENT
MATTER

(¶ 5.) It is humbly submitted before the Hon’ble International Court of Justice that the rule
of Res Sub-judice prohibits any other forum to hear the present matter. Res Sub-judice is a
general principle of law22 recognized by courts throughout the world.23 It entails within itself
the principle that no two courts can hear the same matter simultaneously.24 The reasoning
behind the same as accepted by the international courts thereof is the possibility of a

10
Moot Proposition ¶16.
11
See Id. at ¶18.
12
See Special Agreement, Id at 5.
13
Territorial and Maritime Dispute (Nicaragua v Colombia), 2011 ICJ Rep 18 (Dec. 11), ¶3.
14
Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States
of America), 1984 I.C.J. 246 ¶130. See also: R. Y. Jennings, The Acquisition of Territory in International Law,
Manchester University Press (1963).
15
United Nations Charter, Jun. 26, 1945, 892 U.N.T.S. 119.
16
Statute of the International Court of Justice art. 36(5), 33 UNTS 993.
17
See Id. art. 37.
18
Id.
19
M. RAMAN, DISPUTE SETTLEMENT THROUGH THE UNITED NATIONS, 1977 (5th Ed. 2011).
20
Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) 1961 I.C.J (May 26); See also: Case
Concerning Trial of Pakistani Prisoners of War (Pakistan v. India), 1973 I.C.J. Rep. 347 (Dec. 15); Aerial
Incident of 10 August 1999 (Pak. v. India), 2000 I.C.J. 12 (June 21.).
21
Aegan Sea Continental Shelf Case (Greece v. Turkey), 1978 I.C.J., Rep. 3.
22
MALCOLM N SHAW, INTERNATIONAL LAW, 609 (8th Ed 2017).
23
CPC section 10; USA; UK.
24
Cheng, General Principles, chapter 17.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

difference in findings.25 It is a scenario of legal conundrum26 with no definite solution but

prevention.27 Thus, it becomes absolutely necessary for one court to await the outcome of a
pending litigation in another court, lest our legal system loses all meaning and
effectiveness.28

D. THE NON-ULTRA PETITA RULE RENDERS THE LATTER JURISDICTIONAL CONTENTIONS

OF THE RESPONDENT STATE INADMISSIBLE

(¶ 6.) It is humbly submitted before the Hon’ble International Court of Justice that the Non-
Ultra Petita rule, which dictates that the Court is under a duty to abstain from deciding points
not included in the submissions of the parties,29 renders the latter jurisdictional contentions30
of the respondent State. Since the function of the Court is to adjudicate the claims submitted
before it by the parties, this duty to refrain31 from adjudication upon claims not submitted is
incumbent upon the Court32 and the Court is restricted to include only claims which have
been submitted before the Court.33 Any submissions made at a later point in time cannot be
included in the same matter without the consent of the other State.34 The Court, thus, as is
incumbent upon it, shall not include in its view any claims or contentions submitted before it
beyond the State’s initial submissions.35

ISSUE II:- ENIGMA IS LIABLE FOR THE ENVIRONMENTAL

CONSEQUENCES OF THE ACTIONS OF OIL CO.

(¶ 7.) It is humbly submitted before the Hon’ble International Court of Justice that Enigma
is liable for the Environmental Consequences of the actions of OilCo in the present matter for
reasons which are four-fold in nature, that firstly, OilCo’s action is attributable to Enigma
under Article 8 of ARSIWA [A]; secondly, Such actions and omissions are not in conformity

25
Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, 3 1954 ICJ Rep. 47
(Jul 13).
26
AMCO v. Republic of Indonesia, 89 ILR, pp. 366, 558; Cheng, General Principles, chapter 17; S. ROSENNE,
THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920 (4th ed. 2005).
27
MALCOLM N SHAW, INTERNATIONAL LAW, 72 (8th Ed 2017).
28
G. Fitzmaurice, The Law and Procedure of the International Court of Justice, Cambridge, 1986, vol. I, p. 183.
29
Oil Platforms (Iran v. USA), 2003 ICJ Rep. 161, ¶271.
30
Moot Proposition ¶18.
31
Arrest Warrant of 11 April 2000 (DRC v. Bel.), Judgment, 2002 I.C.J. Rep.18.
32
XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, 102 (2003).
33
Request for the Interpretation of the Judgment in the Asylum Case, 1950 ICJ Rep. 395, ¶402; Qatar v. Bahrain
case, 2001 ICJ Rep. 40, ¶¶96–97. See also Rosenne, Supra Note 26, p. 576.
34
Corfu Channel (United Kingdom v. Albania), Judgment, Merits, 1949 I.C.J. Rep. 4, ¶26 (April 9).
35
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objection, 1992 I.C.J. Rep 240, ¶261
(June 26).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

with International Customary Laws [B]; thirdly, Enigma’s action of oil spilling and putting
fire on the sea is a violation of erga omnes norm [C] and; lastly, Enigma’s action does not
precluded due to Necessity [D].

A. OILCO’S ACTION IS ATTRIBUTABLE TO ENIGMA UNDER ARTICLE 8 OF ARSIWA

(¶ 8.) It is humbly contended that, the conduct of a person or group of persons shall be
considered an act of a State under international law if the person or group of persons are in
fact acting on the instructions of, or under the direction or control of, that State in carrying
out the conduct.36

(¶ 9.) It is contended that, the OilCo, won a bid for setting up a floating oil rig within the
Exclusive Economic Zone (hereinafter referred to as ‘EEZ’) of the Enigma to explore
hydrocarbon reservoir.37 Enigma has conducted the Environmental Impact Assessment
(hereinafter referred to as ‘EIA’) of the OilCo for the exploration purpose. Therefore Oil Co.
was working under instruction and control of Enigma in carrying out the conduct of
exploration.

(¶ 10.) It is further contended that, the attribution to the State of conduct in fact authorized by
it is widely accepted in international jurisprudence.38 It does not matter that the corporation
involved are private individuals nor whether the conduct of OilCo. involves “governmental
activity”.39 State responsibility of Enigma arises when Enigma supplement their own action
by recruiting a multinational company, OilCo, which act as “auxiliaries” while remaining
outside the official structure of the State.40 Therefore, Enigma is liable for the conduct of
OilCo.

(¶ 11.) It is contended that the requirement of international law for the attribution to States of
acts performed by private individuals is that the State exercises control over the individuals.
The degree of control may, however, vary according to the factual circumstances of each
case.41

36
Articles on Responsibility of States for Internationally Wrongful Acts art. 8, Dec. 12, 2001, Supp. No. 10
A/56/10 [hereinafter ARSIWA].
37
Moot Proposition ¶3.
38
D. Earnshaw and Others (Great Britain) v. United States, Sales No. 1955.V.3, , UNRIAA, vol. VI, Pg. 160
(1925)[hereinafter Zafiro Case]; see also: Charles S. Stephens and Bowman Stephens (U.S.A.) v. United
Mexican States, Sales No. 1951.V.1, UNRIAA, vol. IV, pg. 267 (Jul. 15, 1927)[hereinafter the Stephens case].
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).
40
Id.
41
Prosecutor v. Duško Tadić, Case No. IT-94–1-A, Judgment, ¶117 (Nov. 11, 1999).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

(¶ 12.) It is contended that, where there is evidence that the corporation is exercising public
powers,42 or that the State is using its ownership interest in or control of a corporation
specifically in order to achieve a particular result,43 the conduct in question has been
attributed to the State.44 There is circumstantial evidence that OilCo was exercising the
ownership interest of the Enigma and such corporation is controlled by Enigma in order to
undertake ultra-deepwater oil exploration within the EEZ of the State. 45 Therefore it can
established that OilCo was acting under the instruction of Enigma, hence make the State
liable for the conduct of OilCo.

B. SUCH ACTIONS AND OMISSIONS ARE NOT IN CONFORMITY WITH CUSTOMARY

INTERNATIONAL LAWS.

(¶ 13.) That actions and omission of the State are not in conformity with CIL which can be in
two folds of arguments, that firstly, it is established that, Enigma has caused transboundary
harm to Mystery and [1] and; secondly, Enigma has violated the Precautionary Principle [2].

1. Enigma has caused Transboundary harm to Mystery

(¶ 14.) That, Enigma has caused transboundary harm to the Mystery which can further be
established in two folds of arguments, firstly it is established that, Enigma has violated
Procedural Obligation [a]; and secondly, Enigma has violated Substantial Obligation [b].

a) Enigma has violated Procedural Obligation

(¶ 15.) That, Enigma has breached Procedural Obligation by, Breaching the obligation to
consult after carrying out an Environmental Impact Assessment [i] and; Breaching of an
obligation to notify and consult [ii].

42
Phillips Petroleum Company Iran v. The Islamic Republic of Iran, IUSCT Case No. 39, Award No. 425-39-2,
¶79 (Jun. 29, 1989).
43
Foremost Tehran, Inc. v. The Government of the Islamic Republic of Iran, IUSCT Case Nos. 37, Award No.
220-37/231-1,¶ 228 (Apr. 11, 1986).
44
Leo Hertzberg et al. v. Finland, Communication No. 61/1979, U.N. Doc. CCPR/C/OP/1 at 124, Supplement
No. 40 (A/37/40), ¶9.1 (Apr. 02, 1982). See also: X v. Ireland, Yearbook of the European Convention on
Human Rights, Application No. 4125/69, ¶199, (1973); Young, James and Webster v. the United Kingdom, Eur.
Court H.R., Series A, No. 44 (1981).
45
Moot Proposition ¶3.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

(i ) T he breach of t he o bl i gat i on t o consul t af t er carryi ng out an

envi ronment al i mpa ct assessment

(¶ 16.) It is humbly submitted that the Enigma holds the obligation to protect and preserve
the common marine water which causes prior assessment of transboundary impacts which is
not merely a treaty based obligation but a requirement of general international law to
undertake an environmental impact assessment where there is a risk that the proposed
commercial activity may have a significant adverse impact in a transboundary context, in
particular, on a shared resource.46 Moreover, due diligence, and the duty of vigilance and
prevention is required in exercising activities like hydro drilling and hydrocarbon
extraction,47 which had not been exercised by the Enigma. This is clear from the fact that the
quality of sea water has been affected due to negligence of the State in carrying such
dangerous activity under the sea water.48

(¶ 17.) It is contended that Enigma has failed to consult Mystery for its potential
transboundary impact.49 It is a breach of a duty on part of Enigma to not to call for an EIA to
be undertaken for ‘proposed activities that are likely to have a significant adverse impact on
the environment’.50

(¶ 18.) It is submitted that, where activities with a known risk of potentially significant
pollution are involved, the necessity of an EIA can be presumed, even if the actual risk is a
small one,51 the risk of harm to the marine environment ‘could not be excluded’. 52 Therefore,
it is contended that Enigma must have consulted Mystery after undertaking EIA 53 keeping in
consideration that Enigma has been a nuclear power across the world and four more nuclear
power plants has been added to its existing plant which is located on the shoreline close to the

46
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].
47
Moot Proposition ¶3.
48
Pulp Mills Case, supra note 46 at ¶204.
49
United Nations, Convention on Environmental Impact Assessment in a Transboundary Context, art. 5, Treaty
Series vol. 1989, p. 309, C.N.443.2014.Treaties-XXVII.4 of 11 August 2014 (Sept. 10, 1997)[hereinafter Espoo
Convention].
50
U.N. Conference on Conference on Environment and Development, Rio Declaration on Environment and
Development, Principal 17, UN Doc. A/CONF.151/26 (vol. I) (Aug. 12, 1992).
51
Draft articles on Prevention of Transboundary Harm from Hazardous Activities, with commentaries, Art. 1,
2(a), 7, 2001 Y.B. on ILC, U.N. Sales No. A/56/10 [hereinafter APTH]; See also: United Nation Convention on
the Law of the Sea art. 206, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]; Espoo Convention, supra
note 49, art. 2(3); Convention on Biological Diversity of 1992, art. 14, U.N. Doc. 1760 U.N.T.S. 69, (Jun. 5,
1992).
52
Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), Provisional Measures, ITLOS Nos. 3&4, ¶79
(1999); Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v.
Singapore), Provisional Measures, ITLOS No. 12, ¶96 (2003).
53
Espoo Convention, supra note 49, Art. 5.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

area where the oil accident happened,54 having potential of a risk of significant harm to the
human or natural environment and even if the risk is uncertain and the potential harm not
necessarily irreparable.55

(¶ 19.) It is contended that Enigma has been negligent in continuous monitoring56 of the
floating oil rig or the mobile drilling unit (MDU) that has been set up by the OilCo57 located
only 250 km away from the coast of Mystery58 causing significant transboundary harm.59

(i i ) T he breach of an ob l i gat i on t o not if y and consul t

(¶ 20.) It is submitted that, Good faith60 is the essence of the obligation to cooperate.61 State
practice demonstrates awareness in terms of the importance of reaching agreement over
shared resources.62 The principle also applies to unilateral acts.63 The duty to consult is aimed
at achieving acceptable solutions64 based on equitable balance of interests.65

(¶ 21.) It is contended that, Enigma has merely notified Mystery with respect to its ultra-
deepwater oil exploration nor did Enigma notify about the happening of the accident and
uncontrolled pouring of oil from Hydra well. It has failed to consult and negotiate in good
faith. Consultation is not restricted to formal compliance. Good faith demands genuine
attempts of reconciliation.66 Enigma has not attempted to reach an acceptable solution. Due to
Enigma’s negligence of not notifying, about 400 km of Mystery’s shoreline has been fouled
by the oil slick leading to affect valuable wetlands areas which has contributed in the
ecosystem.67

54
Moot Proposition ¶1.
55
The MOX Plant Case (Ireland v. United Kingdom), Provisional Measures, ITLOS No. 10, (2001); Pulp Mills
Case, supra note 46 at ¶204.
56
See Pulp Mills Case at ¶205.
57
Moot Proposition ¶3.
58
Moot Proposition ¶5.
59
Pulp Mills Case, supra note 46 at ¶205.
60
United Nations Charter art.2, Jun. 26, 1945, 892 U.N.T.S. 119; Vienna Convention on the Law of Treaties art.
23, 31(1), opened for signature May 23, 1969, 1155 U.N.T.S. 331.
61
APTH, supra note 51, commentary to Art. 4, ¶ 2.
62
Id.
63
M. Virally, Review essay: good faith in public international law, 77 AJIL, 130 (1983).
64
APTH, supra note 51, Art. 9(1).
65
See Id Art. 9(2).
66
Lake Lanoux Arbitration (France v. Spain) 12 R.I.A.A. 281 ¶ 22 (1957).
67
Moot Proposition ¶5.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

b) Enigma has violated Substantial Obligation

(¶ 22.) It is contended that, Sea water and its marine species are international,68 ‘common,’69
trans-boundary resources70 which are subjects of mutual concern for countries sharing same
sea water and its species. The aggressive off-shore drilling activities71 and putting fire to the
oil drifting on the sea,72 causing fire in the territory of Mystery were human activities
conducted by Enigma. Oil pollution due to negligence of Enigma has caused significant harm
to the valuable and protected wetland areas earmarked as a “Ramsar Site.” Enigma’s activity
has heavily impacted the crustaceans, birds, protected sea turtles, phytoplankton which forms
a critical part of the food chain, marine mammals, fish, oyster habitats, marshes, mangroves,
sand beaches and dunes, aquatic vegetation, the ocean floors, etc. and also driven protected
national park of Mystery in negative growth.73 Dispensing oil slick has a clear nexus with the
reduction of protected trees, natural habitats, birds, marine mammals etc.74 Hence, Enigma’s
response violates Mystery’s right to protect and preserve biodiversity and ecology which is
culturally indispensable for Mystery. Significant trans boundary harm has been caused to
Mystery’s environment, culture75 and economy.76

2. Enigma has violated the Precautionary Principle

(¶ 23.) It is submitted that, Precautionary principle is an emerging principle of customary

international law.77 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.78 Nations
should proceed slowly “in the face of uncertainty, constantly testing and monitoring the
effects of their activities” relating to the environment.79

68
Convention on Wetlands of International importance especially as Waterfowl Habitat, Preamble, 2 February
1971, 996 U.N.T.S 245 [hereinafter Ramsar].
69
BARBARA J. LAUSCHE, WEAVING A WEB OF ENVIRONMENTAL LAW: CONTRIBUTIONS OF THE IUCN
ENVIRONMENTAL LAW PROGRAMME, 169 (2008).
70
DINAH SHELTON, INTERNATIONAL COOPERATION ON SHARED NATURAL RESOURCES IN SHARED RESOURCES:
ISSUES OF GOVERNANCE, 72 IUCN ENVIRONMENTAL LAW AND POLICY 1.
71
Moot Proposition ¶2.
72
See Id at ¶6.
73
See Id at ¶9.
74
See Id at ¶23.
75
Draft Principles on Allocation of Laws in the case of Trans Boundary Harm, Principle 2(a) (ii).
76
Moot Proposition ¶23 (f).
77
James Cameron & Juli Abouchar, The Precautionary Principle: A Fundamental Principle of Law and Policy
for the Protection of the Global Environment 14 B.C. Int'l & Comp. L. Rev. 1991, at 4.
78
Rio Declaration, supra note 50, Principle 15.
79
DAVID CARON AND HARRY SCHEIBER BRINGING NEW LAW TO OCEAN WATERS, 359 (2004).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

(¶ 24.) It is contended that, oil slick causes serious and reversible harm to the environment.80
There was scientific uncertainty with respect to accident and uncontrolled pouring of oil from
the Hydro oil well.81 Temporary sealing of the well was considered to be the primary
facilitator for such leakage. Enigma did not take any precautions related to the Hydro oil well
project in its country. Erring to implement precautionary guidelines despite awareness has the
effect of contributing to the peril.

C. ENIGMA’S ACTION OF OIL SPILLING AND PUTTING FIRE ON THE SEA IS A VIOLATION OF
ERGA OMNES NORMS

(¶ 25.) It is contended that, Erga Omnes Partes are said to be ‘collective obligations,’ i.e.
obligations binding on a group of States and established in common interest, transcending the
‘sphere of the bilateral treaties of State parties’.82 These include the environment and human
rights.83 Enigma’s action heavily impacted the protected wetland area consisting of forest
area, with trees of over 100 years old,84 marine life including fish species, dolphins, marine
mammals, sea turtles and seabirds85, and also, more than 100 species of birds have been
affected.86 Such impact has been caused by Enigma’s negligence and further putting fire on
the sea without informing and consulting its neighbouring country Mystery,87 has caused
great harm to the environment. The inability to carry out surveillance during the drilling of
the Hydro oil well lead to the transboundary harm to the Mystery.88

D. ENIGMA’S ACTION DOES NOT PRECLUDED DUE TO NECESSITY

(¶ 26.) It is submitted that, a state is precluded from wrongful acts in breach of international
obligations in a state of necessity.89 The ICJ mandates strict requirement of all fulfilling
conditions to establish necessity.90 The plea of necessity in the presence of alternative

80
Moot Proposition ¶5.
81
See Id at ¶4.
82
APTH, supra note 51, Commentary on Art.48.
83
Id.
84
Moot Proposition ¶5.
85
Id. at ¶23.
86
Id. at ¶23 (a)(iv).
87
Id. at ¶6.
88
Id. at ¶3.
89
PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 472-73 (Cambridge University Press,
2003).
90
Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) Gabcikovo-Nagymaros, Judgment,
I.C.J. Rep. 1997, p. 7 ¶ 52 (Sep. 1997).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

measures cannot be provoked.91 The defense of necessity implies the notion of balancing the
essential interests of States against one another or against the essential interests of “the
international community as a whole.”92 The state invoking a state of Necessity Doctrine must
not itself have been provoked, either deliberately or by negligence.93

(¶ 27.) It is contended that, it was due to the negligence of Enigma that there was a leakage of
oil from the Hydro drilling well Enigma taking a defence of necessity of the state cannot be
provoked as the negligence is on the part of the Enigma. The Enigma has failed to
implement94 the precautionary measures that had been suggested as a part of the adopted
customary international laws.

ISSUE III:- ENIGMA HAS VIOLATED INTERNATIONAL LAW IN ITS

TREATMENT OF THE ENVIRONMENT.

(¶ 28.) It is humbly submitted before the Hon’ble International Court of Justice that Enigma
has violated international law in its treatment of the environment in the instant case which are
four-fold in nature, that firstly, Enigma has violated the principles enshrined under the Rio
Declaration on Environmental and Development, 1992 [A]; Secondly, Enigma has violated
the principles of the United Nations Convention on Law of the Sea [B]; Thirdly, That Enigma
has violated the principles enshrined under The United Nations Framework Convention on
Climate Change, 1992 [C]; Fourthly, That enigma has violated the principles enshrined under
International Convention for the Safety of Life at Sea, 1974 [D].

A. THAT ENIGMA HAS VIOLATED THE PRINCIPLES ENSHRINED UNDER THE RIO
DECLARATION ON ENVIRONMENT AND DEVELOPMENT 1992

(¶ 29.) It is humbly submitted that the principle 295 of the Rio Declaration provides for the
right to exploit the resources within a country but should not harm the other neighbouring
states. The more risky or dangerous an activity and the more vulnerable the environment the
higher the degree of due diligence and thus preventive action is expected from a state.96 But
in the instant case such huge distress has been caused by Enigma due to the offshore oil

91
Y.B. Int’l L. Comm’n, 52-54, A/CN.4/SER.A/1980/Add.l (Part 1) ; Roman Boed , State of Necessity as a
Justification for Internationally Wrongful Conduct, 3 Yale Hum. Rts. & Dev. L.J 4 (1 Feb 18,2014,).
92
Robert D. Sloane, On The Use And Abuse Of Necessity In The Law Of State Responsibility, 106 American
Journal of International Law 447,473 (2012).
93
Y.B. Int’l L. Comm’n, 36, A/CN.4/SER.A/1980/Add.l (Part 1).
94
Id.
95
Rio Declaration, supra note 50, Principle 2.
96
ELLEN HEY, ADVANCED INTRODUCTION TO INTERNATIONAL ENVIRONMENT LAW 71 (2016).

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drilling activity undertaken by them at the sea which affected the forest area of the national
park97 and heavily impacted the marine mammals, food chain of the aquatic animals, their
habitat and the tourist spot of the Mystery. It is generally agreed that the prevention principle
imposes an obligation of conduct, instead of obligation of result.

(¶ 30.) It is further submitted that, it requires the present generation to take into account the
long term effect of its activities such as the difficulties encountered and time lines involved in
restoring disturbed ecosystems. As formulated in principle 398 of the Rio Declaration, inter-
generational equity is closely related to the right to development. As a member of present
generation, we hold the earth for future generations and at the same time we are beneficiaries
entitled to use the benefit from it.99 The no harm principle has evolved to include every
state’s duty to prevent environmental harm to areas beyond national jurisdiction.100

(¶ 31.) It is humbly submitted that the Rio Declaration in its principle 17101 refers to
Environmental Impact Assessment that EIA 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. Furthermore, in Pulp Mills,102 the ICJ found
that requirements regarding the conduct of an environment assessment may be violated if
procedural standards, for example regarding the proper notification and consultation of the
other party, have not been met.103 In the instant case Enigma never shared the EIA
undertaken domestically with Mystery country which is a grave procedural violation to
undertake such potentially harmful activities.104

1. That Enigma failed to notify Mystery about the accident.

(¶ 32.) It is humbly submitted that the principle 18105 of the Rio Declaration, which states the
requirement to notify other states in case of emergency and the principle 19 of the Rio
Declaration formulates the obligation of states to notify and consult each other in case they
plan to engage in an activity that may cause significant adverse trans boundary effects and
makes it obligatory to provide prior and timely notification. In the instant case, not only did

97
Moot proposition ¶4.
98
Rio Declaration, supra note 50, Principle 3.
99
MARTIN DIXON, ROBERT MCCORQUODALE & SARAH WILLIAMS, CASES AND MATERIAL ON ENVIRONMENT
LAW, 452 (5th Ed., 2011).
100
Ellen Hey, supra note 96 at 58.
101
Rio Declaration, supra note 50, Principle 17.
102
Pulp Mills Case, supra note 46 at ¶¶112-122.
103
Ellen Hey, supra note 96 at 81.
104
Moot Proposition ¶12.
105
Rio Declaration, supra note 50, Principle 18.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

Enigma not notify its neighbouring countries of the expanding oil leakage into the territorial
water and did not inform its neighbouring countries when the forest fire crossed boundary
lines,106 Enigma has failed to not only notify Mystery prior to the harm or notify timely and
provided the relevant information but has also added on the distress by setting fire on the oil
spill. It was the Marine Ecology Department of the Mystery which notified its own Central
Government about the oil leak entering its territorial waters in day two of the oil spill.107

2. That Enigma has violated the principle of intergenerational equity in its treatment of
the environment

(¶ 33.) It is humbly submitted that the intergenerational equity has three basic principles;
first, each generation should be required to conserve the diversity of the natural and cultural
resource base, this principle is also called the ‘conservation of options.’ Second, each
generation should be required to maintain the quality of the planet so that it is passed in no
worse condition than that it was received, this principle is called the ‘conservation of quality.’
Third, each generation should provide its members with equitable rights of access to the
legacy of past generations and should conserve this access for future generations; this is the
principle of access.108

(¶ 34.) It is most respectfully submitted that the existence of the general obligation of states
to ensure that activities within their jurisdiction and control respect the environment of other
states or areas beyond national control is now part of the corpus of international law relating
to the environment.109 Further, that no state has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes in or the territory of another110 as many
birds died due to the fumes eliminated by the burning of oil on the sea. Thus, in the light of
the above arguments Enigma has violated the fundamental principles of the 1992 Rio
Declaration.

B. THAT ENIGMA HAS VIOLATED THE PRINCIPLES OF THE UNITED NATIONS CONVENTION
ON LAW OF THE SEA, 1982

(¶ 35.) It is humbly submitted that the Article 61(2) of the UNCLOS states that the coastal

106
Moot Proposition ¶7.
107
Id. ¶12.
108
E Brown Weiss, Our Rights and Obligations for Future Generation for the Environment 84, American
Journal of Environment Law, 198 (1990).
109
Legality of the Threat or use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 ¶29 (Jul. 8).
110
Trail Smelter Arbitration case (US v. Canada) 3 RIAA 1905, (Arb. Trib. 1941).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

state shall ensure through proper conservation and management methods that the
maintenance of the living resources in the exclusive economic zone is not endangered by over
exploitation.111 However due to the cross boundary impact of spreading oil pollution and also
because of spreading fire, Mystery has lost many sea mammals and birds which are found in
the coastal area, there has been an increase of 80% in death of the prevalent dolphin species
typical for this coastal area.112

(¶ 36.) It is further submitted that enigma has violated the obligation of state under Article
198113 of the UNCLOS, where the state has an obligation to aware the states as to maintain
regional cooperation in cases where the environment is in imminent danger of being damaged
or has been damaged by pollution, however Enigma failed to notify Mystery of the imminent
danger caused by the oil rig.

(¶ 37.) It is humbly submitted that Article 206114 of the UNCLOS, requires that the potential
effects of activities on the marine environment be assessed115 and shall communicate reports
of the results of such assessment in the manner provided under Article 205,116 Furthermore,
under Article 205 the State is under an obligation to publish the reports of the results obtained
or provide such reports at appropriate intervals to the competent international organizations.
However, Enigma neither provided any such result of the assessment conducted to any
international organization nor to Mystery country.117

C. THAT ENIGMA HAS VIOLATED THE PRINCIPLES ENSHRINED UNDER UNFCCC

(¶ 38.) That Enigma has violated principle enshrined under the Article 3(1)118 of the
UNFCCC under which the States which are parties to it have an obligation to protect the
climate system for the benefit of present and future generations of humankind, however
Enigma failed to protect the climate change caused due to drifting oil parts on fire, Enigma
worsened the air pollution situation further, thereby further infringing its climate change
obligation to reduce CO2 emission.119

111
UNCLOS, supra note 51, Art. 61(2).
112
Moot Proposition ¶23(a)(ii).
113
UNCLOS, supra note 51, Art. 198.
114
Id., Art. 206.
115
Ellen Hey, supra note 96 at 81.
116
UNCLOS, supra note 51, Art.205.
117
Moot Proposition ¶12.
118
United Nations Framework Convention on Climate Change art. 3(1), Jan. 20, 1994, U.N. Doc. A/RES/48/189
[hereinafter UNFCCC].
119
Moot Proposition ¶13.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

(¶ 39.) It is most respectfully submitted that Enigma has violated the principles of
Sustainable Development which is the essence of the UNFCC Convention by not utilizing the
resources in an equitable manner thereby compromising the ability of future generations,
such utilization could not be considered to be equitable and reasonable if the interests of other
riparian state in the shared resources and the environmental protection of the latter were not
taken into account,120 such interconnectedness between equitable and reasonable utilization
of a shared resource and the balance between economic development and environmental
protection is the essence of sustainable development.121 Furthermore, the ruling in Pulp Mills
suggests that for international watercourses, the principle of equitable and reasonable
utilization has attained customary international law status122 and Enigma in its treatment of
the environment has caused grievous harm to the marine environment by setting up fire to the
oil and thereby killing dolphins, fishes, sea turtles for which it would take decades to restore
back to the original position.

D. THAT ENIGMA HAS VIOLATED THE PRINCIPLES ENSHRINED UNDER SOLAS

(¶ 40.) It is humbly submitted that polluting substances enter the environment due to
accidents that may occur during the production, transportation or use of harmful
substances.123 The SOLAS convention like other treaties administered by the IMO, instead
addresses safety at sea and thereby indirectly serves to protect the marine environment 124 and
Enigma in its treatment of the environment has caused grievous harm to the marine
environment by setting up fire to the oil and thereby killing dolphins fishes sea turtles for
which it would take decades to restore back to the original position.

ISSUE IV:- ENIGMA IS LIABLE TO PAY REPARATION AND THE QUANTUM

OF SUCH REPARATION SHALL BE GIVEN TO THE MYSTERY.

(¶ 41.) It is humbly submitted before the Hon’ble International Court of Justice that Enigma
is liable for reparation to Mystery in the present matter in three forms in respect to the act and
omission committed by Enigma, that firstly, Enigma is liable to pay the reparation for the
damages occurred as a result of oil spill [A]; secondly, Enigma is liable to pay compensation
for the loss of Ecology and Biodiversity [B]; and; lastly, Enigma is liable to ensure

120
Pulp Mills Case, supra note 46 at ¶177.
121
Id.
122
Ellen Hey, supra note 96 at 62.
123
Ellen Hey at 25.
124
Ellen Hey at 30.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

Satisfaction [C].

A. ENIGMA IS LIABLE TO PAY THE REPARATION FOR THE DAMAGES OCCURRED AS A

RESULT OF OIL SPILL

(¶ 42.) It is submitted that, reparation may be in the form of ‘restitution in kind,

compensation, satisfaction and assurances and guarantees of non-repetition, either singly or
in combination’.125 Reparation may take the form of monetary compensation for
economically quantifiable damage as well as for non-material damage, depending on the
circumstances of the case.126 Enigma is liable to pay monetary compensation for the act of
environmental damages on the land of Mystery as well as for the loss of ecological services
which cannot be restored instantly.

1. Enigma is liable for Pure Environmental Damages

(¶ 43.) It is submitted that the UNCC decided that pure environmental damage could be
compensable, and dealt at length with the issue of quantifying the level of compensation. It
decided that where a resource had commercial value, such as a crop, and was damaged for a
period of time, compensation should be awarded on the basis of the market price for the
period of time that the damage persisted, adjusted as appropriate to take into account the
influence of other sources of damage.127

(¶ 44.) It is a principle of international law that the breach of an engagement involves an

obligation to make reparation in adequate form.128 Any violation by a State of any obligation,
of whatever origin, gives rise to state responsibility, and consequently, to the duty of
reparation.129 It is submitted that the Mystery has violated the international law as well as
obligation which gives rise to state responsibility and hence liable for the duty to reparation.

(¶ 45.) It is submitted that reparation must, as far as possible, wipe out all the consequences
of the illegal act and re-establish the situation which would, in all probability, have existed if

125
ARSIWA Supra note 36, Art. 42.
126
M/V Saiga (No. 2) Case (St. Vincent and the Grenadines v. Guinea), Case No. 2, Order of Jan. 20, 1998, 2
ITLOS Rep. 4,5 ¶171.
127
UNCCC, Report on the Fifth Instalment of F4 Claims, op. cit., ¶103-118, U.N. Doc. S/AC.26/2001/16, EM,
Vol. II, Annex 35[hereinafter UNCCC].
128
Case Concerning the Factory at Chorzow (Claim For Indemnity), Jurisdiction Judgment, 1927, P.C.I.J. Series
A, No. 9, ¶ 21.
129
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).

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

that act had not been committed.130 Similarly, the environmental damages in the state of
Mystery shall be wiped out and re-established by the Enigma. Enigma shall be liable to pay
Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value
which a restitution in kind would bear; the award, if need be, of damages for loss sustained
which would not be covered by restitution in kind or payment in place of it.131

2. Enigma is liable for loss of well being and post traumatic stress

(¶ 46.) It is submitted that the applicant state is also liable to pay compensation for loss of
well-being suffered by the Mystery due to post-traumatic stress disorder, although there is
insufficient evidence to support awards in these instances.132

3. Enigma is liable to pay Exemplary damages for deterrence

(¶ 47.) It is submitted that Enigma is liable under international law for any direct loss,
damage, including environmental damage and the depletion of natural resources, and injury
to foreign Governments and nationals, as a result of Enigma’s conduct.133 The UNCC
awarded compensation for the monitoring and assessment of damage, for response costs, and
for remediation of damage.134

(¶ 48.) It is submitted that, as regards damage to resources which did not have a market
reference price, such as a loss of biodiversity that persisted for several years, Enigma would
be liable to compensate for the natural resource losses by reference to the costs of other
environmental projects that were put in place to compensate for the loss of ecological
services that the natural resources would have provided had they not been damaged, so long
as there was “sufficient evidence that primary restoration will not fully compensate for any
identified losses”.135

B. ENIGMA IS LIABLE TO PAY COMPENSATION FOR THE LOSS OF ECOLOGY AND

BIODIVERSITY

(¶ 49.) It is a well-established rule of international law that an injured State is entitled to

obtain compensation from the State which has committed an internationally wrongful act for

130
Factory at Chorzów, supra note 128 at ¶ 47.
131
Id.
132
UNCCC, supra note 127 at ¶289.
133
United Nations Security Council, Resolution 687, 2981st Meeting, U.N. Doc. S/RES/687, ¶16 (1991).
134
UNCCC, supra note 127 at ¶289.
135
Id., ¶82.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

the damage caused by it.136 It is submitted that the Mystery has suffered great environmental
loss for the act of Enigma and OilCo, which makes them liable to compensation for the
retreatment of the damages such suffered.

(¶ 50.) It is submitted that Applicant State is under a duty to pay compensation to the
Mystery for the damages suffered as a result of burning of oil137 and it is equally well
established that an international court 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.138 Thus it is well settled that this Hon’ble Court holds the jurisdiction to
determine the amount of compensation.

(¶ 51.) It is submitted that, under special agreement between Enigma and Mystery,139 both
the countries recognise the jurisdiction of the court in all disputes of a juridical nature that
arise between them concerning, inter alia, the nature and extent of the reparation to be made
for the breach of an international obligation.

(¶ 52.) In the present case, Enigma is under an obligation to indemnify Mystery for all the
loss and damage caused by its internationally wrongful acts, including in particular for the
following: [1] Affected water column, with its numerous fish species, marine mammals, sea
turtles and sea birds; [2] Affected wetland area of Mystery identified as Ramasar site; [3]
Affected environment and sand of the Mystery’s beach area; [4] Affected National Park and
Forest area of Mystery; [5] Affecting Forest soil; [6] the cost of “lost recreational use”; [7]
compensation on behalf of local towns whose renowned topography will now remained
changed; [8] the costs of monitoring to identify and assess future risks to public health,
human rights and the environment and; [9] compensation be assessed as to fit the wrongful
conduct of Enigma.

C. ENIGMA IS LIABLE TO ENSURE SATISFACTION

(¶ 53.) Insofar as damage cannot be made good by restitution or compensation, the State
responsible for an internationally wrongful act is under an obligation to give satisfaction for

136
Gabcikovo-Nagymaros Project, supra note 90 at ¶152.
137
Corfu Channel (United Kingdom v. Albania), Judgment, Merits, 1949 I.C.J. Rep. 4, ¶26 (April 9); See also:
Corfu Channel (United Kingdom v. Albania), Judgment, Assessment of the Amount of Compensation due from
the People’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland, 1949 I.C.J. Rep.
244 (Dec. 15) .
138
ARSIWA Supra note 36,, Art. 36 ¶2.
139
Special Agreement, Moot Proposition.

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MEMORANDUM for APPLICANT [ARGUMENTS ADVANCED]

the injury caused by that act.140 It is submitted that, Court is requested to make a declaration,
as a form of satisfaction, of the environmental damages and transboundary has been caused to
the Mystery by the Enigma.141

(¶ 54.) In addition to its claims for cessation and non-repetition, reparation and
compensation, Mystery requests that the court declare that Enigma has transboundary harm to
the Mystery, and other obligations under international law, by causing the oil pollution in the
sea and burning of forest of the Mystery.

140
ARSIWA Supra note 36, Art. 37.
141
Corfu Channel supra note 7 at 35.

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MEMORANDUM for APPLICANT [PRAYER]

PRAYER

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

b. That Enigma is liable for the environmental consequences of the actions of OilCo.
c. That Enigma has violated any principles of International Law in its treatment of the
environment.

Adjudicate:
d. That Enigma is liable to pay reparations in the amount of $100 Billion only (US
Dollars) 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 the principles of
Justice, Equity, and Good Conscience enshrined in Article 38(2) of this Hon’ble Court’s
Statute.

And for this act of kindness, the Applicant State shall forever humbly pray.

Sd/-
AGENTS FOR THE APPLICANT STATE

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