119 A

TEAM CODE- 119
THIRD GUJARAT NATIONAL LAW UNIVERSITY INTERNATIONAL MOOT COURT COMPETITION, 2011
MEMORIAL
for
APPLICANTS
COUR INTERNATIONALE DE JUSTICE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE THE HAGUE, THE NETHERLANDS
THE CASE CONCERNING THE INTERPRETATION OF THE EASTERN JIMM ECONOMIC PARTNERSHIP AGREEMENT
PEOPLES DEMOCRACY OF PSHAD (THE APPLICANT) V. REPUBLIC OF ARGUNIA (THE RESPONDENT)
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3rd GNLU International Moot Court Competition, 2011
TABLE OF CONTENTS
INDEX OF TERMS AND ABBREVIATIONS ......................................................................................v INDEX OF AUTHORITIES........................................................................................................... vii STATEMENT OF JURISDICTION.................................................................................................xiv STATEMENT OF FACTS.............................................................................................................. xv ISSUES RAISED ...................................................................................................................... xviii SUMMARY OF ARGUMENTS......................................................................................................xix WRITTEN SUBMISSION................................................................................................................1 I. RAS EXPORT PROHIBITION ON SPACE TECHNOLOGY EXPORT AS A COUNTER MEASURE TO PREVENT HUMAN RIGHT VIOLATIONS IS INCONSISTENT WITH INTERNATIONAL LAW AND EJEPA TREATY......................................................................1 A].RA EXPORT PROHIBITION VIOLATES ARTICLE 15 OF EJEPA TREATY .........................1 1]. Article 15(2) (d) of the treaty is a specific exception to Article 15 ............................... 1 i].Pshad has not violated article 13(2) of UDHR ..................................................2 ii].Pshad has not violated article 12(4) of ICCPR .................................................3 (a).ICCPR is not binding on Pshad .....................................................................3 (b).Pshad has not arbitrarily deprived the right of an individual to enter ............3 (c).Pshad can espouse the right to enter his own country ....................................4 2]. Article 30 of the EJEPA treaty is a general exception to Article 15 ........................... 4 i].Measures should not be arbitrary or unjustifiable discrimination ....................4 ii].Similar conditions should prevail in both the countries ...................................4 (a).necessary to protect public morals ................................................................5 (b).Necessary to protect human, animal or plant life or health cannot be invoked as an exception to Article 15 ...............................................................................6
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B].THE EXPORT PROHIBITION BEING AN ECONOMIC SANCTION VIOLATES INTERNATIONAL

LAW. ..............................................................................................................................7
1]. Export prohibition by the RA was an economic sanction.................................................... 7 2]. The Respondent State violated the U.N. Charter by imposing this extreme economic sanction. ......................................................................................................................................... 7 i].It violated Article 33 of the UN Charter. ..............................................................7 ii].It violated Article 2(4) of the UN Charter. ..........................................................7 iii].It also violated Article 2(7) of the UN Charter. ..................................................8 3]. The Respondent State has also violated the principle of good faith. .......................... 9 i].The right to impose economic sanction was exercised fictitiously. .....................9 ii].The Respondent States actions were backed by malice. .................................. 10 4]. The economic sanctions were contrary to general principles of international law governing economic sanctions. .................................................................................................. 10 II. ICJ DOES NOT HAVE THE JURISDICTION TO ADJUDICATE UPON THE INVESTMENT CLAIMS OF THE PARTIES ............................................................................................... 11 A].ICJ HAS NO JURISDICTION OVER THE DISPUTE11 1]. Article 36(1) of ICJ does not gives the jurisdiction ................................................................. 11 B].THE CENTRE HAS NO JURISDICTION TO HEAR THE INVESTMENT CLAIM..................... 11 1]. legal dispute is not arising directly out of an investment ...................................................... 11 i].legal dispute..................................................................................................... 11 ii].Investment ...................................................................................................... 12 (a).EYE OUT has been incorporated in RA .................................................. 12 (b). Rita Sen is not an investor within the meaning of the treaty for the claimants and hence her stake in EO is not an investment. ........................................ 14 (c).Satellites is not an investment within the meaning of the convention ........... 14
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2]. The Parties are a Contracting State and a National of Another Contracting State ........................................................................................................................................................................ 15 i].Rita Sen is effectively a national of Claimant.................................................. 15 (a).Rita Sen is not an effective and dominant national of the PSHAD ................ 16 (b). Rita Sen has not lost her applicants nationality within the meaning of the treaty .......................................................................................................... 16 (c).Rita Sen has not lost her applicants nationality within international law .... 17 (d).RA cannot claim on behalf of Rita Sen......................................................... 18 3]. Applicant has not given their consent............................................................................................. 19 i].Remedies available have not been exhausted .................................................. 19 (a).Injury caused was an indirect injury............................................................ 19 (b).Article 26 of the ICSID has been violated .................................................... 20 III. ARGUNIA IS NOT ENTITLED TO COMPENSATION FOR THE LOSS OF ITS SATELLITE FROM PSHAD AS A RESULT OF THE COLLISION, PURSUANT TO THE LIABILITY CONVENTION, THE OUTER SPACE TREATY AND THE REGISTRATION CONVENTION. .... 21 A].SPACE LAW TREATIES IS NOT APPLICABLE IN THE PRESENT CASE. ............................ 21 1]. The damage is not caused by a space object.................................................................................. 21 2]. Proximate Causation may not be established ............................................................................... 22 3]. Space object does not include space debris ................................................................................ 22 4]. Registration convention is not applicable since Pshad has no jurisdiction over the object in question ................................................................................................................................. 23 5]. Pshad is not liable to pay compensation to Rita Sen ............................................................ 23 6]. Argunia authorization of the satellite is contrary to Article IX of the Outer Space Treaty ..................................................................................................................................................... 24 REQUEST FOR RELIEF .............................................................................................................. 25
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INDEX OF TERMS AND ABBREVIATIONS

ABBREVIATION / / Art. /Arts. e.g. ECN Ed. EJEPA EO i.e. Ibid. ICCPR ICESCR ICJ ICSID p./pp. RA EXPLANATION Section/sections Paragraph/paragraphs Article/Articles Exemplum gratia (for example) European Convention on Nationality Edition Eastern Jimm Economic Partnership Agreement Eye Out id est (that is) Ibidem (at the same place) International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Center for Settlement of Investment Disputes page/pages Republic of Argunia
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Res Sess Supra UDHR UN UN GAOR UNCOPUOS UNGA VCLT WTO
Resolution Session See above Universal Declaration of Human Rights United Nations United Nations General Assembly Official Records United Nations Committee on the Peaceful Uses of Outer Space United Nations General Assembly Vienna Convention on the Law of Treaties World Trade Organization
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INDEX OF AUTHORITIES
Treaties and Charters Convention on international liability for damage caused by space objects, UNGA Res.2777 29 November 1971, entered into force 9 October 1973 ............................................................... 23 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131, 20th Sess.,107, U.N. Doc. A/'RES/2131(XX)/Rev.1. (1965). ............................................................................................9 European Convention on Nationality , Strasbourg, 6.XI.1997. ................................................... 17 ICCPR ........................................................................................................................................1 ICESCR ......................................................................................................................................1 ICSID convention ..................................................................................................................... 18 Magna Carta, ..............................................................................................................................2 Treaty on Principles Governing the Activities on States in the Exploration and Use of Outer Space, including the Moon and other celestial Bodies, 610 U.N.T.S. 205 (1976). ................... 24 UDHR. ........................................................................................................................................1 UN Charter .................................................................................................................................7 Vienna Convention on the Law of Treaties ..................................................................................3 Books, Journals and Commentaries the standing of dual-nationals before Iran-United States Claims Tribunal, Virginia Journal of International Law (1984) vol. 24, no. 3, 695-728. ................................................................. 16 A. Gonzalez, 'Trade and Morality: Preserving "Public Morals" Without Sacrificing the Global Economy', at 960. ....................................................................................................................5
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A.A Cocca,Convention on Registration of Objects Launched into Outer Space in Manual on Space Law: Vol.1, C.S Sheldon and B.M DeVoe, UN Registry of Space Vehicles (1970),13 Colloquium L Outer Space , p.127 ......................................................................................... 23 Alfred Michael Boll, Multiple Nationality and International Law 2007, p.99. ........................... 16 Andre Beirlaen, Economic Coercion and Justifying Circumstances, 18 Revue beige de droit international 67 (1984-85)........................................................................................................8 Anthony Aust, Modern treaty law and practice 75 (2000). ......................................................... 17 Anthony Aust, Modern treaty law and practice, 75 (2000). ..........................................................3 B.Cheng, Convention on International Liability for damage caused by Space Objects in N. Jasentuliyna and R.S.K Lee. Manual on Space Law:Vol.1, p.83 ............................................. 23 Barry E. Carter, International Economic Sanctions: Improving the Haphazard U.S. Legal Regime, 75 Cal. L. Rev. 1162, 1169 (1987);.............................................................................7 Bret A. Sumner, Due Process and True Conflicts: The Constitutional Limits on Extraterritorial Federal Legislation and the Cuban Liberty ..............................................................................7 Briggs, Domestic Jurisdiction Reservations, 93 Recueil Des Cours, 309, 323 (1958 I). ............ 20 Broches, A., Bilateral Investment Protection Treaties and Arbitration of Investment Disputes,in: The Art of Arbitration, Liber Amicorum Pieter Sanders (Schultz, J./van den Berg, A. eds.) 63, 70 (1982). .............................................................................................................................. 13 Brownlie, Principles of International law, 497-8 (1963); ........................................................... 20 David Cortright & George A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s 2 (2000); ...................................................................................................................... 10 Delaume, G.R., ICSID Arbitration in Practice, 2 International Tax and Business Lawyer 58, 62 (1984);Delaume, ICSID Arbitration, p. 111 ........................................................................... 13 Ernest H. Preeg, Feeling Good or Doing Good with Sanctions ix (1999) at 1...............................7
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F. Hayak, The Constitution of Liberty (1960). .............................................................................8 Fawcett, Exhaustion of Local Remedies: Substance or Procedure? ,31 BRIT. Y.B. INTL L 452, 458 (1954);. ........................................................................................................................... 20 Fitzmaurice, The Law and Procedure of the International Court of Justice, 1954-9: General Principles and Sources of International Law, 35 BRIT. Y.B. INTL L 183, 200 (1959) ......... 20 G. R Delaume,, ICSID Arbitration and the Courts, 77 AJIL 784, 793/4 (1983); ......................... 13 Gary C. Hufbauer, Economic Sanctions in Support of Foreign Policy Goals 31 (1983) ............. 11 Gary Clyde Hufbauer & Jeffrey J. Schott, Economic Sanctions Reconsidered: History And Current Policy 4 (1985). ...........................................................................................................9 H. Hannum, The Right to Leave and Return in International Law and Practice 3-6 (1987............2 H. Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, cit., pp. 355 ................................................................................................1 H.C.Gutteridge, Abuse of Rights, 5 Cambridge L.J. 22 (1933). .............................................. 10 Higgins, The Legal Limits to the Use of Force by Sovereign States: Untied Nations Practice, 37 Brit. Y.B.IntL L. 269 (1961) ...................................................................................................8 Hossein G. Askari et al., Economic Sanctions: Examining Their Philosophy and Efficacy 1-3 (2003) at 68-69. .......................................................................................................................7 Hossein G. Askari et al., Economic Sanctions: Examining Their Philosophy and Efficacy 1-3 (2003) at 69. ............................................................................................................................8 I.I Kotlyarov, Space Monitoring Facilities and Environment Protection (1982), 25 Colloquium L Outer Space ........................................................................................................................ 23 Ian Brownlie, Principles of Public International Law, 6th edn (Oxford: Oxford University Press, 2003), 580, 602 ff. ...................................................................................................................5
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Jason Davidson & George Shambaugh, Who's Afraid of Economic Incentives? The EfficacyExternality Tradeoff, in Sanctions as Economic Statecraft 37, 64 (Steve Chan & A. Cooper Drury eds., 2000). .................................................................................................................. 10 Joy Fausey, Does the United Nations' Use of Collective Sanctions to Protect Human Rights Violate Its Own Human Rights Standards?, 10 Conn. J. Int'l L. 193, 197-99 (1994). ................8 Kenneth W. Abbott, Coercion and Communication: Frameworks for Evaluation of Economic Sanctions, 19 New York University Journal of International Law and Politics 781, 783, 789 (1987). .....................................................................................................................................7 Lt. Col. Susan S. Gibson, Economic Sanctions: The Importance of Government Structures, 13 Emory Int'l L. Rev. 161, Spring, 1999,pg.169. .........................................................................8 M..S. McDougal and F. Feliciano, Law and Minimum World Public Order (1961) .....................8 Malcom N. Shaw, International Law, 5th edn (Cambridge: Cambridge University Press, 2003), 839; .........................................................................................................................................5 Margaret P. Doxey, International Sanctions in Contemporary Perspective 37 (2d ed. 1996) at 124 .............................................................................................................................................. 11 Meron, The incidence of the rule of exhaustion of local remedies, 35 BRIT. Y.B. INTL L 84, 95 (1959). ................................................................................................................................... 20 Oppenhiem , International Law , A Treatise, 588 ...................................................................... 16 P Acconci,., Determining the Internationally Relevant Link between State and Corporate Investor, 5 Journal of World Investment & Trade 139 (2004). ................................................ 12 P.G Dembling and S.S Kalsi, Pollution of Mans Last Frontier: Adequacy of Present Space Environmental Law in Preserving the Resources of Outer Space (1973),20 Netherlands Intl LJ 125................................................................................................................................... 23 Proceedings UN International Institute on Air and Space Law Workshop on Capacity Building in Space Law, p.28..................................................................................................................... 24
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Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 901, 920-21 (1995). ...............................................................................9 Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 919 (1995). ............................................................................................8 Richard N. Haass, Sanctioning Madness, Foreign Aff., Nov./Dec. 1997, at 84; M.S. Daoudi & M.S. Dajani, Economic Sanctions: Ideals and Experience 26 (1983) ...................................... 10 Shorter Oxford English Dictionary, [7th ed. 1999], 268. ..............................................................5 Simon Chesterman & Beatrice Pouligny, The Politics of Sanctions (La Politique des Sanctions), Int'l Peace Academy (June 2002), at 5.................................................................................... 10 Susan S. Gibson, Economic Sanctions: The Importance of Government Structures, 13 Emory Int'l L. Rev. 161, Spring, 1999,pg.169 .............................................................................................8 Thihan Myo Nyun, Feeling Good or Doing Good: Inefficacy of the U.S. Unilateral Sanctions against the Military Government of Burma/Myanmar, 7 Wash. U. Global Stud. L. Rev. 455, 2008.........................................................................................................................................7 Thomas G. Weiss et al., Economic Sanctions and their Impacts: An Overview, in Political Gain and Civilian Pain (Thomas G. Weiss et al. eds., 1997)............................................................ 11 Thomas G. Weiss et al., Political Gain and Civilian Pain: Humanitarian Impacts of Economic Sanctions 3, (Thomas G. Weiss et al. eds., 1998). ....................................................................9 Tom J. Farer, Political and Economic Coercion in Contemporary International Law, 79 Am. J. Int'l L. 406 (1985). ...................................................................................................................7 Waldock, Plea of Domestic Jurisdiction before International Legal Tribunals, 31 BRIT. Y.B. INTL L 96, 114 (1954); ........................................................................................................ 20 Case Laws Amco v. Indonesia, Decision on Jurisdiction, 25 September 1983, para. 14(ii);.......................... 13
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Award (1937) 3 UNRIAA p. 1719, at p.1751. .............................................................................9 Barcelona Traction Case, (Belg. v. Sp.) 1970 I.C.J. 3 .................................................................1 Bayindir v. Pakistan, Decision on Jurisdiction, 14 November 2005, para. 137. .......................... 15 Bayindir v. Pakistan,Decision on Jurisdiction, 14 November 2005, para. 130;........................... 15 Case concerning East Timor, ICJ. Reports 1995, 90, 22)......................................................... 12 Chorzow Factory Case (Merits) (Germany v. Poland), (1928) P.C.I.J. (Ser. A) No.17, at p.87. ...9 Cong. Research Serv., 106TH Cong., Treaties and other agreements: The role of United States Senate, 113 (Comm. Print 2001) ........................................................................................ 3, 18 CSOB v. Slovakia, Decision on Jurisdiction, 24 May 1999, para. 64. ......................................... 15 Englo Norwegian Fisheries Case (UK. V. Norway), 1951 I.C.J. Rep. 116, at p.142. .................. 10 Ethiopia v. South Africa; Liberia v. South Africa) , Second Phase, Judgment [1966] ICJ Rep 298. ................................................................................................................................................1 Fedax v. Venezuela, Decision on Jurisdiction, 11 July 1997, para. 43 ........................................ 15 Finnish Ships Case, 3 RIAA 1479; ............................................................................................ 20 Fisheries Jurisdiction case, (U.K v Ice.), 1974 I.C.J 1, 26-7. ..................................................... 24 Free Zones Case (Second Phase): Order (France v. Switzerland), (1930) P.C.I.J. (Ser. A) No.24, at p.12. .....................................................................................................................................9 German Interests Case (Germany v. Poland) (Merits), 1926 P.C.I.J. (Ser. A.) No.7, at p.30; .......9 Interhandel case, USA v. Switzerland ICJ Reports (1959) .......................................................... 20 Jan de Nul v. Egypt, Decision on Jurisdiction, 16 June 2006, para. 91 ....................................... 15 Kaiser Bauxite v. Jamaica, Decision on Jurisdiction, 6 July 1975, para. 19. .............................. 13 Kardassopoulos v. Georgia, Decision on Jurisdiction, 6 July 2007, para. 116. .......................... 15 LETCO v. Liberia, Decision on Jurisdiction, 24 October 1984, 2 ICSID Reports 351354. ....... 13 Malaysian Historical Salvors v. Malaysia, Award, 17 May 2007, paras. 72, 106, 124, 130 ....... 15 RFCC v. Morocco, Decision on Jurisdiction, 16 July 2001, para. 60.......................................... 15 RFCC v. Morocco, Decision on Jurisdiction, 16 July 2001, paras. 65, 66. ................................. 15 Rompetrol v. Romania, Decision on Jurisdiction, 18 April 2008, para. 83. ................................ 13 SPP v. Egypt, Decision on Jurisdiction I, 27 November 1985, para. 46. ..................................... 13 The Nottebohm Case (Liechtenstein v. Guatemala) International Court of Justice April 6, 1955 . 1955 I.C.J. 4........................................................................................................................... 16 Tokios Tokeles v. Ukraine, Decision on Jurisdiction, 29 April 2004, para. 63 ........................... 13
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Venezuelan Preferential Claims Case (1904) (Germany, Great Britain, Italy v. Venezuela et al), 1 H.C.R 55,at p.60. ..................................................................................................................9 United Nations Documents G.A. Res. 2200A, U.N. GAOR, 11th Sess., (1966). .....................................................................3 J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including his Own and to Return to his Country at 87. Judge Ingles undertook this study as
special rapporteur of the U.N. (U.N. Doc. E/LN.4/Sub.2/220/Rev.1, Sales No. 64 XIV. 2. (1960). .....................................................................................................................................2 J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including his Own and to Return to his Country at 9. Judge Ingles undertook this study as special rapporteur of the U.N. (U.N. Doc. E/LN.4/Sub.2/220/Rev.1, Sales No. 64 XIV. 2. (1960). .....................................................................................................................................2 L. Kirk Wolcott, Seeking Effective Sanctions, 11 Emory Int'l L. Rev. 351, 364 (1997); Boutros Boutros-Ghali, Supplement to An Agenda For Peace, paras. 75-76, U.N. Doc. A/50/60S/1995/1 (Jan. 3, 1995). ......................................................................................................... 10 of the Sub-Commission on the Promotion and Protection of Human Rights; The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, U.N. Doc. E/CN.41/Sub.2/2000/33, P 9 (1999), ; G.A.Res. 242, U.N. GAOR, 50th Sess., Annex 2, P 2, U.N. Doc. A/RES/51/242 (1995)..............................................................................................9 Supplement to an Agenda for Peace, G.A. Res. 242, U.N. GAOR, 51st Sess., U.N. Doc. A/Res/51/242 (1997). ............................................................................................................. 11 Supplement to an Agenda for Peace, G.A. Res. 242, U.N. GAOR, 51st Sess.,U.N. Doc. A/Res/51/242 at pp 6-17; ...................................................................................................... 11 The Situation in Afghanistan and Its Implications for International Peace and Security: Report of the Secretary-General, U.N. GAOR, 55th sess., Agenda Item 46, at para. 61, U.N. Doc. A/55/907-S/2001/384 ............................................................................................................. 10 U.N. Doc. E/LN.4/Sub.2/220/Rev.1, Sales No. 64 XIV. 2. (1960) ...............................................4 Working Group, Supplement to an Agenda for Peace, G.A. Res. 242, U.N. GAOR, 51st Sess., U.N. Doc. A/Res/51/242 (1997). ............................................................................................ 11
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STATEMENT OF JURISDICTION
As both the states are parties to the UN Charter, and the case is being brought before the Court by the special agreement, the parties submit the dispute to International Court of Justice pursuant to Article 40(1) of The Statute of International Court of Justice (Statute) and in accordance with the compromis notified to the Court on 1 August 2009. Pursuant to Article 36(1) of The ICJ Statute, the Court has Jurisdiction to decide all matters only related to export prohibitions and not of investment claims.
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STATEMENT OF FACTS
I. THE REPUBLIC OF ARGUNIA
The Republic of Argunia (RA) is an industrialized country sharing its boundary with Peoples Democracy of Pshad. RA has been developed for over a century with a stable economy and growth. However, RAs historical lead over its economic rivals in technology development has lessened over last fifteen years. II. PEOPLES DEMOCRACY OF PSHAD
Peoples Democracy of Pshad is a rapidly industrializing country. It has capacity to the point of competitiveness with most industrialized countries in the world in the area of spacecraft and aeronautics. Most of Pshads population is engaged in agriculture, but due to poor agriculture and natural resources much of Pshads population is increasingly struggling to remain above poverty line. The rest Pshadi population enjoy a life of opulence as they gain their incomes from telecommunication and surveillance industry of which Pshad is second largest producer in the world. III. POVERTY DRIVEN EMIGRATION
Due to increasing differential in wealth division in Pshad the last few years have witnessed increased poverty driven emigration, particularly to RA. Unwelcomed in RA, Pshadi are often exploited as cheap unskilled labor. Emigration is also looked unfavorably by the Pshadi government, and returned Pshadi face high probability of mistreatment by border officials. IV. THE SOCCER HOOLIGANS
Laudi, a city in the RA is a home to soccer and soccer fan base. Though most fans turn out to be encouraging, a small group acts otherwise. These soccer hooligans have begun regularly destroying the sportsmanlike fun and property in stadium. The police reports witnessed evidences of serious troubles for outside teams in coming games. In 2004 a violent riot broke out when Laudis team lost to Pshad which resulted in a mass battle which left property destroyed and fans injured.
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V.
EYE OUT (EO)
EO is a private security firm founded by Rita Sen, a Pshadi immigrant to Laudi(RA). It caters to both private and public sectors including aiding the police who lack funds to hire necessary resources. As a result of EOs explosive growth, Sen incorporated the company under laws of RA in 2005. The holding of the company was as follows: 30% of the shares - Rita Sen 40% of the shares - Pension fund in Pshad (of whom Sen;s cousin is MD) Other shares - held by various high value individuals in the two countries
EOs qualification and latest security technology earned it an exclusive contract from the city for maintaining the security of citys sports stadium. But, rumors suggested that the contract was offered to EO due to Sens close friendship with high level authorities of the city. VI. LAUNCH OF EOS SATELLITE
In 2008, EO launched a satellite at a height of 1000 km above earth to maintain a better surveillance over entire Pshad-RA border area. The launch proved to be successful as, 350 soccer hooligans were prosecuted by help of tracking of the satellite and reports suggested that there was dramatic reduction in soccer violence. But, not everyone was pleased about it and several arguments on privacy and persuasions of emigrants were made by scholars, cicil societies and political dissidents from both the countries. VII. COLLISION OF SATELLITES AND EXPORT PROHIBITION
In May 2009, EOs satellite collided with a space object and was put out of function. The expert investigations could figure out that the object in question was a piece of dislodged portion of a satellite which was taken out of space program twenty years ago but left to orbit. The satellite was deemed to be of Pshad as only Pshad and Oxia had satellites that long ago and all satellites registered in Pshad were launched from Oxia until five years ago. Sen and other EO executives were outraged at their loss as the satellite was main source of current tender for RA border control services and main advantage over their competitors. The Parliamentary Committee of RA took prompt action and called for indefinite moratorium on space technology exports to Pshad.
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VIII.
THE EASTERN JIMM ECONOMIC PARTNERSHIP AGREEMENT (EJEPA)
Both Ra and Pshad are parties to EJEPA, an economic agreement aiming at holistic development and investment protection between partners. EJEPA calls for transfer of technology between developing and industrialized countries and its non- economic provisions aim at social and political development and adherence to individual rights and rule of law. It also provides for internal measures in case of violation of provisions by one of the parties and elaborates that in case of disputes, the Parties are to apply to the International Court of Justice for peaceful resolution of disputes.
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ISSUES RAISED
I. WHETHER RAS EXPORT PROHIBITION ON SPACE TECHNOLOGY AS A COUNTER MEASURE TO PREVENT HUMAN RIGHT VIOLATIONS IS CONSISTENT WITH INTERNATIONAL LAW AND EJEPA TREATY?
II.
WHETHER INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION TO HEAR THE INVESTMENT CLAIMS?
III.
WHETHER ARGUNIA IS ENTITLED TO COMPENSATION FOR THE LOSS OF SATELLITE DUE TO COLLISION?
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SUMMARY OF ARGUMENTS
I. RAs EXPORT PROHIBITION ON SPACE TECHNOLOGY AS A COUNTER MEASURE TO PREVENT HUMAN RIGHTS VIOLATION IS INCONSISTENT WITH INTERNATIONAL LAW AND THE EJEPA TREATY. 1. RAs export prohibition is inconsistent with Article 15 of the EJEPA. 2. The exceptions provided in Article 15(2) and General Exception 30 do not apply to the prohibition imposed. 3. Export prohibition is not a countermeasure to human rights violations. II. ICJ DOEN NOT HAVE THE JURISDICTION TO ADJUDICATE UPON THE INVESTMENT CLAIMS OF THE PARTIES. 1. Article 36(1) of the ICJ does not give jurisdiction. 2. The requirements of Chapter 2 of ICSID are not fulfilled. III. ARGUNIA IS NOT ENTITLED TO COMPENSATION FOR THE LOASS OF ITS SATELLITE FROM PSHAD AS A RESULT OF THE COLLISION, PURSUANT TO THE LIABILITY CONVENTION, THE OUTER SPACE TREATY AND THE REGISTRATION CONVENTION. 1. Space law treaties are not applicable to Pshad. 2. Space object does not include space debris. 3. Pshad is not liable under Liability Convention, The Outer Space Treaty and Registration Convention.
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TEAM CODE- 119
WRITTEN SUBMISSION
I. RAS EXPORT PROHIBITION ON SPACE TECHNOLOGY EXPORT AS A COUNTER MEASURE TO PREVENT HUMAN RIGHT VIOLATIONS IS INCONSISTENT WITH INTERNATIONAL LAW AND EJEPA TREATY A]. RA EXPORT PROHIBITION VIOLATES ARTICLE 15 OF EJEPA TREATY Article 151 provides that no prohibition or restrictions shall be instituted or maintained by any contracting party on the exportation or sale for export of any product destined for the territory of any other contracting party. However, there are specific and general exceptions to this rule which are provided in the treaty itself. This has been codified in article 15(2) and Article 30 respectively. RAs export prohibition does not falls within the above exceptions which are as follows: 1]. Article 15(2) (d) of the treaty is a specific exception to Article 15 This article provides that necessary export prohibitions could be invoked only to ensure or to promote international law which has been accepted by international community including the aims set forth in the United Nations Charter. RA had put unnecessary restrictions on export of space technology only to ensure that Rita Sen gets compensation of satellite and lost profit for which applicant has no responsibility and liability. Thus, export prohibition was an actual and preemptive counter measure to coerce applicant to pay the value of the satellite and loss profit to Rita Sen. Human rights have been considered inalienable and universal. It has been codified in various international declarations2, treaties3 and has been unanimously accepted as jus cogens 4 and customary international law. 5 A violation of human right is also considered as erga omnes 6 and thus it also becomes an obligation for international community to thwart such violations. Right to
1 2
Compromis, EJEPA. UDHR. 3 ICCPR;ICESCR. 4 Ethiopia v. South Africa; Liberia v. South Africa) , Second Phase, Judgment [1966] ICJ Rep 298. 5 H. Hannum, The Status of the Universal Declaration of Human Rights in National and International Law, cit., pp. 355. 6 Barcelona Traction Case, (Belg. v. Sp.) 1970 I.C.J. 3.
MEMORIAL for APPLICANT| 1
enter to his own country is one such right which has been recognized since time immemorial. The first acknowledgment of such right, albeit in national law, is found in the Magna Carta 7 where it guarantees freedom "to go out of our kingdom, and to return, safely and securely, by land or water, saving his allegiance to us."8 However, RAs contention that applicant has violated human rights of returned individuals is baseless and illegitimate under international law as the compromis clearly states that there is probability of mistreatment by border officials. Thus, there is no surety to the fact that returned individuals were subjected to ill-treatment and whether the returned individuals had applicants nationality which makes it illicit under international law. Therefore, there is no violation of their right to return to their own country. Hence, this exception cannot be invoked as export prohibition carried by RA is not promoting international law as there is no breach of such. Assuming but not conceding that the returned individuals were ill-treated by border officials, yet the right to return codified in UDHR and ICCPR is not binding on the applicants which are as follows. i]. Pshad has not violated article 13(2) of UDHR Article 13(2)9 states that every person has the right to leave any country, including his own, and to return to his country. Judge Ingles equated this right to a "right of personal self determination". 10 However, the compromis clearly mentions that there is only a probability of mistreatment by border officials which makes it uncertain to assume that returned individuals were subjected to ill-treatment. Accordingly, the nationality of immigrants cannot be ascertained as the immigrants may have naturalized in RA before entering the territory of the applicant. Therefore, there is no violation of the right as it is only guaranteed to its nationals. 11 Assuming but not conceding that the returned individuals were ill-treated by border officials, yet the right to
7 8
Magna Carta, Article 41. H. Hannum, The Right to Leave and Return in International Law and Practice 3-6 (1987). The French Constitution of 1791 also guaranteed the "freedom of everyone to go, to stay or to leave, without being halted or arrested." In Hannum. 9 UDHR. 10 J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including his Own and to Return to his Country at 9. Judge Ingles undertook this study as special rapporteur of the U.N. (U.N. Doc. E/LN.4/Sub.2/220/Rev.1, Sales No. 64 XIV. 2. (1960). 11 J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including his Own and to Return to his Country at 87. Judge Ingles undertook this study as special rapporteur of the U.N. (U.N. Doc. E/LN.4/Sub.2/220/Rev.1, Sales No. 64 XIV. 2. (1960).
MEMORIAL for APPLICANT | 2
return codified in UDHR is not binding on the applicant as UDHR is only a resolution adopted by the General Assembly which is not legally binding on its member states.12 ii]. Pshad has not violated article 12(4) of ICCPR It was, however, with the passing of the ICCPR on 16 December 196613 by the General Assembly, as a follow-up to the UDHR, that the right to enter was placed in a formally binding legal context. However, Pshad has not violated this provision for the following reasons (a). ICCPR is not binding on Pshad Under international law, a nation does not become a party to a treaty until it expresses its "consent to be bound."14 Traditionally, this consent could be expressed in a variety of ways, including through a nation's signature of the treaty. Under modern practice, however, signature is not typically regarded as a manifestation of consent to be bound, especially for multilateral treaties. Instead, consent is manifested through a subsequent act of ratification -- the deposit of an instrument of ratification or accession with a treaty depositary in the case of multilateral treaties, and the exchange of instruments of ratification in the case of bilateral treaties. 15 It has also long been settled that the act of signing a treaty does not obligate a nation to ratify the treaty. Thus, treaty on the proposed contention is mute on the point of non ratification, since any such provision would not be applicable until the treaty was ratified. Therefore, the provisions of ICCPR are not applicable on Pshad. (b). Pshad has not arbitrarily deprived the right of an individual to enter Article 2(1)16 reads that every state is sovereign and equal. However, the meaning of the term sovereign could well be derived by Article 2(4) 17 which states that every state shall from the threat or use of force against the territorial integrity or political independence of any state. Thus, territorial integrity and political independence are essential ingredients of the term sovereign.
12 13
http://www.aidh.org/uni/Formation/02Charte_a.html./ G.A. Res. 2200A, U.N. GAOR, 11th Sess., (1966). 14 Vienna Convention on the Law of Treaties arts. 2(1)(b), 11-17, May 23, 1969, 1155 U.N.T.S. 331; see also Anthony Aust, Modern treaty law and practice, 75 (2000). 15 Cong. Research Serv., 106TH Cong., Treaties and other agreements: The role of United States Senate, 113 (Comm. Print 2001) [hereinafter CRS Study]. 16 UN Charter. 17 Ibid.
Therefore, every state has an absolute right over its territory and political ambitions guaranteed by the UN Charter. Hence, applicant has absolute control over its territory and the freedom to espouse the right to enter of an individual in its territory. Applicant has not denied the right arbitrarily as applicant was not in favor of immigration of its nationals as they were exploited as cheap unskilled labor in the RA. Thus immigration of its national to RA is seen as an infringement to their political ambition. Therefore, returned individuals could well be denied their right to enter by exercising their sovereign power. Hence, it is not arbitrary. (c). Pshad can espouse the right to enter his own country The nationality of the immigrants cannot be ascertained as the immigrants may have naturalized in RA before entering the territory of the applicant. However, it is also within the ambit of the duty of border official to ascertain the nationality of an individual while allowing the individuals to enter. They can espouse the right to return of an individual if its nationality cannot be ascertained. Therefore, there is no violation of the right if their nationality cannot be ascertained as the right is only guaranteed to its nationals. 18Therefore, Pshad has not violated Article 12 (4) as it has not met the requirements. Thus, export prohibition was an actual and preemptive counter measure to coerce applicant to pay the value of the satellite and loss profit to Rita Sen. 2]. Article 30 of the EJEPA treaty is a general exception to Article 15 The primary rule to invoke this exception is to first establish the following conditions: i]. Measures should not be arbitrary or unjustifiable discrimination RA had put unnecessary restrictions on export of space technology only to ensure that Rita Sen gets compensation of satellite and loss profit for which applicant has no responsibility and liability. It has also been established above that applicant has not violated human rights of individuals entering the territory of the applicant. Thus, export prohibition was an actual and preemptive counter measure to coerce applicant to pay the value of the satellite and loss profit to Rita Sen. Therefore, it was arbitrary and unjustifiable. ii]. Similar conditions should prevail in both the countries
18
J. Ingles, Study of Discrimination in Respect of the Right of Everyone to Leave any Country, Including his Own and to Return to his Country at 87. Judge Ingles undertook this study as special rapporteur of the U.N. (U.N. Doc. E/LN.4/Sub.2/220/Rev.1, Sales No. 64 XIV. 2. (1960) .
The compromis clearly state that RA is an industrialized country19. RAs population has enjoyed the fruits of development for over a century, managing to maintain their democratic values even as national politics sometimes became acrimonious20. The diversified economy has had stable, moderate growth for the past fifty years whereas, Pshad is a developing country. Not yet fully competitive in agriculture and poor in natural resources, much of Pshads population is increasingly struggling to remain above the .poverty line. Therefore, it shows that similar conditions do not prevail in both the countries. Therefore, both the conditions have not been met in order to invoke this exception. Assuming but not conceding that both the conditions have been met, yet the following exceptions to the rule codified in article 15 would not apply (a). necessary to protect public morals21 Pursuant to customary international law on treaty interpretation, codified in Article 31 of the Vienna Convention on the Law of Treaties 22, the provisions of the EJEPA must be analyzed in the following ways: In accordance with the ordinary meaning to be given to the terms
In order to determine the ordinary meaning of a term, the general approach is to resort to definitions stated in recognized dictionaries. The term public moral denotes standards of right and wrong conduct maintained by or on behalf of a community or nation. 23 Therefore Public morals, for example, range from views related to religion, human and fundamental rights to attitudes on alcohol, drugs, sexuality, bigamy, gambling, corruption in business and politics, consumer protection or treatment of nature and animals. 24 Thus, by giving the reasonable interpretation to this term, RA had put unnecessary restrictions on export of space technology only to ensure that Rita Sen gets compensation of satellite and loss profit for which applicant has no responsibility and liability. It has also been established above that applicant has not violated
19 20
Compromis, Para. 1. Ibid. Para 2. 21 Compromis, EJEPA, General exceptions. 22 Malcom N. Shaw, International Law, 5th edn (Cambridge: Cambridge University Press, 2003), 839; Ian Brownlie, Principles of Public International Law, 6th edn (Oxford: Oxford University Press, 2003), 580, 602 ff. 23 Shorter Oxford English Dictionary, [7th ed. 1999], 268. 24 A. Gonzalez, 'Trade and Morality: Preserving "Public Morals" Without Sacrificing the Global Economy', at 960.
human rights of individuals entering the territory of the applicant. Thus, export prohibition was an actual and preemptive counter measure to coerce applicant to pay the value of the satellite and loss profit to Rita Sen. Therefore, RAs contention that export prohibition was necessary to protect public moral in order to prevent human right violations is false. In the light of their object and purpose
The EJEPA non-economic provisions recognize the importance of sustainable social and political policies to development25, requiring adherence to basic individual rights and the rule of law. The treaty also allows for regime-internal countermeasures in the case of violation of any of the provisions by one of the Parties. However, applicant has not violated any provision of this treaty. Thus, the object and the purpose of the treaties do prohibit restrictions if the party has not violated any provisions of the treaty. Therefore, RAs contention that export prohibition was necessary to protect public moral in order to prevent human right violations is false. In their context.
The treaty provides that a state can apply measures that it considers necessary for the fulfillment of its obligations with respect to the maintenance or restoration of international peace or security, or the protection of its own essential security interests 26. Thus, RAs export prohibition is not justified within the meaning of this provision as RA had observed prohibition as a counter measure to coerce applicant to pay the value of the satellite and loss profit to Rita Sen. Thus there was no restoration or maintenance of international peace. Therefore, this condition is also not fulfilled. Hence the rule of public moral cannot be applied as an exception to Article 15 as it has not met the requirements of article 31 27. (b). Necessary to protect human, animal or plant life or health cannot be invoked as an exception to Article 15 It has been established above that the applicant has not violated any right of an individual. RA had observed prohibition as a counter measure to coerce applicant to pay the value of the satellite
25 26
Compromis, Para 11. Compromis, EJEPA, Essential security clause. 27 Vienna Convention on the Law of Treaties arts. 2(1)(b), 11-17, May 23, 1969, 1155 U.N.T.S. 331.
and loss profit to Rita Sen. Thus, it is not protecting the right of an individual codified in UDHR and ICCPR. Hence, this exception would not apply as well. B]. THE EXPORT PROHIBITION BEING AN ECONOMIC SANCTION VIOLATES INTERNATIONAL
LAW.
1]. Export prohibition by the RA was an economic sanction. Economic sanctions are defined as coercive economic measures taken by the sending State against the target State to coerce a change in the policies and practices of the target State. 28 Imposition of economic sanctions is designed to compel a behavior or policy change in a target country by inducing economic losses. 29 Restrictions on normal trade relations intended to inflict economic loss on a target country are a form of economic sanction. 30 2]. The Respondent State violated the U.N. Charter by imposing this extreme economic sanction. i]. It violated Article 33 of the UN Charter. It is humbly submitted that by not resorting to peaceful means of settling the dispute, the Respondent State has violated the obligations under UN Charter. It is mandatory for all the members to enter into pacific means of settlement of disputes,31 which requires that, when States interests coincide, they are bound to enter into negotiations in first place. 32 The necessity for coercion between States will arise only when forum for diplomacy, communication, and negotiation has been utilized and has failed.
33
The attempt to reach prior agreement and
notification, before enacting unilateral economic sanctions decides their legitimacy. 34 ii]. It violated Article 2(4) of the UN Charter.
28
Barry E. Carter, International Economic Sanctions: Improving the Haphazard U.S. Legal Regime, 75 Cal. L. Rev. 1162, 1169 (1987); Kenneth W. Abbott, Coercion and Communication: Frameworks for Evaluation of Economic Sanctions, 19 New York University Journal of International Law and Politics 781, 783, 789 (1987). 29 Thihan Myo Nyun, Feeling Good or Doing Good: Inefficacy of the U.S. Unilateral Sanctions against the Military Government of Burma/Myanmar, 7 Wash. U. Global Stud. L. Rev. 455, 2008. 30 Hossein G. Askari et al., Economic Sanctions: Examining Their Philosophy and Efficacy 1-3 (2003) at 68-69. 31 UN Charter, Article 33. 32 Tom J. Farer, Political and Economic Coercion in Contemporary International Law, 79 Am. J. Int'l L. 406 (1985). 33 Ibid. 34 Ernest H. Preeg, Feeling Good or Doing Good with Sanctions ix (1999) at 1; Bret A. Sumner, Due Process and True Conflicts: The Constitutional Limits on Extraterritorial Federal Legislation and the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996, 46 Cath. U.L. Rev. 907, 907-908 (1997).
It is an obligation upon every member of UN Charter to refrain from using any means of coercion or threat in their international relations. Any use of force or threat against the political independence and territorial integrity of a State is prohibited. 35 Force constitutes a form of coercion, because it aims at the deliberate and drastic restriction or suppression by one actor of the choices of another.36 The application of economic instead of military force makes no difference in characterizing the behavior as use of force even though it may be legal under International Law.37 Economic coercion applied at extremes is capable of destruction of value comparable to the effect of employment of military force. 38 Extreme economic sanctions, which could have a major impact on the political stability of the recipient State, are prohibited. 39 Severe hardship brought about by economic losses due to extreme economic sanctions, foster political discontent among the population in the target country. 40 Extreme economic sanction compels civilian population in the target country to rise up against its leaders to demand change, forcing the target government to reverse its policies, which could have a major impact on its political stability. 41 Such extreme economic sanctions lead government crackdowns on democratic rights to free speech and the like. 42 UN Charter and other General Assembly resolutions constitute sufficient state practice and opinio juris to create a new rule of customary international law prohibiting the use of such extreme economic sanctions. 43 iii]. It also violated Article 2(7) of the UN Charter. The enactment of economic sanctions by a sending State if designed to infringe upon the sovereignty of the target State and not necessarily benefit the sending State's economic position, are prohibited.44 The principle of non-intervention creates a rule against the use of
35 36
UN Charter, Article 2(4); F. Hayak, The Constitution of Liberty (1960). 37 M..S. McDougal and F. Feliciano, Law and Minimum World Public Order (1961); Higgins, The Legal Limits to the Use of Force by Sovereign States: Untied Nations Practice, 37 Brit. Y.B.IntL L. 269 (1961) at pp. 276-77. 38 Ibid. 39 Joy Fausey, Does the United Nations' Use of Collective Sanctions to Protect Human Rights Violate Its Own Human Rights Standards?, 10 Conn. J. Int'l L. 193, 197-99 (1994). 40 Hossein G. Askari et al., Economic Sanctions: Examining Their Philosophy and Efficacy 1-3 (2003) at 69. 41 Supra at 35 . 42 Lt. Col. Susan S. Gibson, Economic Sanctions: The Importance of Government Structures, 13 Emory Int'l L. Rev. 161, Spring, 1999,pg.169. 43 Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 919 (1995). 44 Andre Beirlaen, Economic Coercion and Justifying Circumstances, 18 Revue beige de droit international 67 (1984-85) U.N. CHARTER Article 1, para. 2, and U.N. CHARTER Article 2, para. 1 and 7.
economic sanctions.45 Similar prohibitions on intervention into a State's sovereignty by economic means are included in the U.N. Declaration on Intervention, 46 the Declaration on Friendly Relations, and the Charter of Economic Rights and Duties of States. 47 When economic sanctions are used, the sending State must justify its action because economic sanctions are coercive measures designed, to interfere in the internal affairs' of the target government.48 It is, well settled that economic sanction motivated by a general political policy that rejects the validity of target States political system or is based on invalid political objectives, is patently impermissible under international law.49 3]. The Respondent State has also violated the principle of good faith. The principle of good faith governs international relations. 50 A State must fulfill its obligations bona fide.51 Good faith thus governs the exercise of rights. These rights must not be exercised fictitiously so to evade such obligations or rules of law, or maliciously to injure others. A violation of these requirements of the principle of good faith constitutes abuse of rights, prohibited by law.52 i]. The right to impose economic sanction was exercised fictitiously. Ex re sed non ex nomin is a principle of good faith.53 This principle inter alia precludes the form of law from being used to cover the commission of what in fact is an unlawful act. If international law prescribes certain rights to a State, which can be exercised under certain
45
Richard D. Porotsky, Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo Against Cuba, 28 Vand. J. Transnat'l L. 901, 920-21 (1995). 46 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131, 20th Sess.,107, U.N. Doc. A/'RES/2131(XX)/Rev.1. (1965). 47 Supra note 43. 48 Gary Clyde Hufbauer & Jeffrey J. Schott, Economic Sanctions Reconsidered: History And Current Policy 4 (1985). 49 Report of the Sub-Commission on the Promotion and Protection of Human Rights; The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, U.N. Doc. E/CN.41/Sub.2/2000/33, P 9 (1999), ; G.A.Res. 242, U.N. GAOR, 50th Sess., Annex 2, P 2, U.N. Doc. A/RES/51/242 (1995); Thomas G. Weiss et al., Political Gain and Civilian Pain: Humanitarian Impacts of Economic Sanctions 3, (Thomas G. Weiss et al. eds., 1998). 50 Venezuelan Preferential Claims Case (1904) (Germany, Great Britain, Italy v. Venezuela et al), 1 H.C.R 55,at p.60. 51 Award (1937) 3 UNRIAA p. 1719, at p.1751. 52 German Interests Case (Germany v. Poland) (Merits), 1926 P.C.I.J. (Ser. A.) No.7, at p.30; Free Zones Case (Second Phase): Order (France v. Switzerland), (1930) P.C.I.J. (Ser. A) No.24, at p.12. 53 Chorzow Factory Case (Merits) (Germany v. Poland), (1928) P.C.I.J. (Ser. A) No.17, at p.87.
circumstances for a specific purpose, it is not permissible for the State to exercise such a right under the pretext of that purpose, to achieve a completely distinct unlawful purpose. 54 ii]. The Respondent States actions were backed by malice. The principle of good faith, which governs international relations, controls also the exercise of rights by States. The theory of abuse of rights recognized in principle by the Permanent Court of Justice, 55 and International Court of Justice, 56 is merely an application of this principles to the exercise of rights. The prohibition of malicious injury is an important aspect of theory of abuse of right, as it has been applied in most legal system. 57 , RAs export prohibition is not justified within the meaning of this provision as RA had observed prohibition as a counter measure to coerce applicant to pay the value of the satellite and loss profit to Rita Sen. Thus, RA was acting in malice. 4]. The economic sanctions were contrary to general principles of international law governing economic sanctions. It is humbly submitted that the Respondent State has also violated the general principles of international law. When a State imposes sanctions against a target state, it must formulate a specific policy mandate ahead of time that outlines a "sunset clause", in detail what the regime is expected to accomplish, and what actions the sanction is expected to garner from the target. 58 It must outline the foreign policy objectives of the sanctions and the ways in which the particular sanctions regime will meet those policy objectives. 59 It should also state an assessment of the measures taken to minimize collateral damage in the target nation and the region to the civilian
54 55
Ibid. Ibid. 56 Englo Norwegian Fisheries Case (UK. V. Norway), 1951 I.C.J. Rep. 116, at p.142. 57 H.C.Gutteridge, Abuse of Rights, 5 Cambridge L.J. 22 (1933). 58 Simon Chesterman & Beatrice Pouligny, The Politics of Sanctions (La Politique des Sanctions), Int'l Peace Academy (June 2002), at 5; David Cortright & George A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s 2 (2000); The Situation in Afghanistan and Its Implications for International Peace and Security: Report of the Secretary-General, U.N. GAOR, 55th sess., Agenda Item 46, at para. 61, U.N. Doc. A/55/907S/2001/384; Jason Davidson & George Shambaugh, Who's Afraid of Economic Incentives? The EfficacyExternality Tradeoff, in Sanctions as Economic Statecraft 37, 64 (Steve Chan & A. Cooper Drury eds., 2000). 59 Richard N. Haass, Sanctioning Madness, Foreign Aff., Nov./Dec. 1997, at 84; M.S. Daoudi & M.S. Dajani, Economic Sanctions: Ideals and Experience 26 (1983) (quoting Boycotts and Peace, A Report by the Committee on Economic Sanctions 21 (Evans Clark ed., 1932)); L. Kirk Wolcott, Seeking Effective Sanctions, 11 Emory Int'l L. Rev. 351, 364 (1997); Boutros Boutros-Ghali, Supplement to An Agenda For Peace, paras. 75-76, U.N. Doc. A/50/60- S/1995/1 (Jan. 3, 1995).
population.60 More significantly the time frame of sanctions should be monitored to minimize unnecessary suffering by the population. 61 It must be imposed with provision for regular review and precise conditions for being lifted. 62 It is also necessary and essential for economic sanctions to stress an expression of a clear warning before sanctions are applied. 63 II. ICJ DOES NOT HAVE THE JURISDICTION TO ADJUDICATE UPON THE INVESTMENT CLAIMS OF THE PARTIES A]. ICJ HAS NO JURISDICTION OVER THE DISPUTE The claimant needs to fulfill the requirement of chapter II in order to claim the jurisdiction of ICJ under Eastern Jimm Economic Partnership Agreement provided in chapter 7: consent of each party to Arbitration. 1]. Article 36(1) of ICJ does not gives the jurisdiction The claimant has no jurisdiction under article 36(1) of ICJ. Article 36(1) requires matters specially provided for in the (i) charter of the United Nations (ii) treaties and convention in force. Thus, Eastern Jimm Economic Partnership Agreement provides in chapter 7: consent of each party to Arbitration that each party consents to the submission to the international court of justice of a claim to arbitration. This satisfies the second requirement of article 36(1) but the consent and submission of a claim shall satisfy the requirement of chapter II of the ICSID convention B]. THE CENTRE HAS NO JURISDICTION TO HEAR THE INVESTMENT CLAIM 1]. legal dispute is not arising directly out of an investment i]. legal dispute
60
Margaret P. Doxey, International Sanctions in Contemporary Perspective 37 (2d ed. 1996) at 124; Gary C. Hufbauer, Economic Sanctions in Support of Foreign Policy Goals 31 (1983); Thomas G. Weiss et al., Economic Sanctions and their Impacts: An Overview, in Political Gain and Civilian Pain (Thomas G. Weiss et al. eds., 1997). 61 Supplement to an Agenda for Peace, G.A. Res. 242, U.N. GAOR, 51st Sess., U.N. Doc. A/Res/51/242 (1997). 62 Working Group, Supplement to an Agenda for Peace, G.A. Res. 242, U.N. GAOR, 51st Sess., U.N. Doc. A/Res/51/242 (1997). 63 Supplement to an Agenda for Peace, G.A. Res. 242, U.N. GAOR, 51st Sess.,U.N. Doc. A/Res/51/242 at pp 6-17;
The Report states that by using the expression legal dispute the Convention implied that the dispute must refer to the scope, existence, and/or exercise of a legally enforceable right. In order to clarify the definition of legal dispute, ICSID tribunals have relied on case law from the International Court of Justice (ICJ). The Maffezini64 case quoted the ICJs definition of legal dispute as a disagreement on a point of law or fact, a conflict of legal views or interests between parties and concluded that: dispute must relate to clearly identified issues between the parties and must not be merely academic. The dispute must go beyond general grievances and must be susceptible of being stated in terms of a concrete claim 65 The case at hand does not satisfy the requirements, for a dispute to be legal, given in the above definition. The definition requires a disagreement or conflict of law but in the present case the dispute is about the compensation for a damaged satellite as a result of its collision with space debris. And space debris does not include space object as explained later in the memorial and thus space law is not applicable to space debris. Therefore, there is no legal dispute. ii]. Investment (a). EYE OUT has been incorporated in RA Under traditional international law, there are several possible criteria for the determination of a juridical persons nationality66. The most widely used test looks at the place of incorporation or registered office. The Preliminary Draft to the Convention further reiterated by offering two possible criteria for the nationality of a company: nationality under the domestic law of a Contracting State or a controlling interest of the nationals of such a State Nationality under a States domestic law was later explained to mean that the company either had its seat in that country or was incorporated under the law of that country. In addition, most of the authors have considered place of incorporation as one of the criteria for determining the nationality of the company. According to Delaume, it is generally agreed that, within the framework of the ICSID Convention, the nationality of a corporation is determined on the basis of its si`ege social or
64
Maffezini, at 417, 94 (quoting International Court of Justice: Case concerning East Timor, ICJ. Reports 1995, 90, 22). 65 Ibid. (quoting Schreuer I, at 337). 66 P Acconci,., Determining the Internationally Relevant Link between State and Corporate Investor, 5 Journal of World Investment & Trade 139 (2004).
place of incorporation67. In Broches68 view, the Convention clearly assumes that the companys place of establishment will or may be held to determine its nationality. ICSID tribunals have uniformly adopted the test of incorporation or seat rather than control when determining the nationality of claimants that are juridical persons. In Kaiser Bauxite v. Jamaica, the Tribunal held that the Claimant was a national of another Contracting State on the basis of the finding that Kaiser is a private corporation organized under the laws of the State of Nevada in the United States of America.69 In SPP v. Egypt, the Tribunal consistently referred to both Claimants as Hong Kong corporations70. Documents filed by the Claimants satisfied the Tribunal that they were, in fact, Hong Kong corporations domiciled in Hong Kong71. In Tokios Tokeles v. Ukraine the majority observed that ICSID tribunals have consistently applied a test of incorporation or seat, when determining the nationality of a corporate person, and, of these, reference to the state of incorporation is the most common method of defining the nationality of business entities under modern BITs and traditional international law72. Thus by applying the principle of place of incorporation for determining the nationality of company, EO is a claimants Company within the meaning of the convention as it was incorporated under the laws of RA. Alternatively, the claimant will not qualify the effective test as EO was providing all its operation in the territory of the claimant and had done nothing in the territory of the respondent. The company was also managed in RA. Thus, it has no nexus with the respondent. It also qualifies the definition of enterprise in the treaty as EO is an entity constituted and organized under the laws of RA. Therefore, EO in all circumstances is a claimants company.
67
G. R Delaume,, ICSID Arbitration and the Courts, 77 AJIL 784, 793/4 (1983); Delaume, G.R., ICSID Arbitration in Practice, 2 International Tax and Business Lawyer 58, 62 (1984);Delaume, ICSID Arbitration, p. 111. 68 Broches, A., Bilateral Investment Protection Treaties and Arbitration of Investment Disputes,in: The Art of Arbitration, Liber Amicorum Pieter Sanders (Schultz, J./van den Berg, A. eds.) 63, 70 (1982). 69 Kaiser Bauxite v. Jamaica, Decision on Jurisdiction, 6 July 1975, para. 19. 70 SPP v. Egypt, Decision on Jurisdiction I, 27 November 1985, para. 46. 71 Amco v. Indonesia, Decision on Jurisdiction, 25 September 1983, para. 14(ii); LETCO v. Liberia, Decision on Jurisdiction, 24 October 1984, 2 ICSID Reports 351354. 72 Tokios Tokeles v. Ukraine, Decision on Jurisdiction, 29 April 2004, para. 63, and see para. 42; also Rompetrol v. Romania, Decision on Jurisdiction, 18 April 2008, para. 83.
(b). Rita Sen is not an investor within the meaning of the treaty for the claimants and hence her stake in EO is not an investment. Rita Sen doesnt qualify the definition of an investor given in the chapter 7 73 of the treaty which says that national of a party to the treaty has made an investment in the territory of the other party. Rita Sen is a national of Pshad and has made no efforts to renounce her nationality. Thus Rita Sen is not a national of the claimants and had made no investment in the territory of Respondent as it has been proved that EO was the claimants company. Alternatively, the claimants contention that Rita Sen is an effective national of their country would not qualify as it was held in Micula v. Romania that there is a clear reluctance in international law to apply the test of a genuine or effective link where only a single nationality is at issue. Therefore, Rita Sen is not a Claimants investor. Accordingly, Rita Sen does not even qualify the definition of investment within the meaning of the treaty which says that every asset that an investor own or controls, directly or indirectly, that has the characteristics of an investment 74. Rita Sen is not an investor within the meaning of the treaty. Therefore Rita Sen doesnt hold any asset within the meaning of the treaty. Thus, Rita Sens stake in EO is not an investment within the meaning of the treaty (c). Satellites is not an investment within the meaning of the convention EO had launched a satellite in the year 2008 to improve its surveillance services. It also enhanced their ability to maintain surveillance over the entire RA-Pshad border area. However, Satellite is not an investment within the meaning of the convention and the treaty as EO, a claimants company, has done the investment in the claimants territory. Therefore, the claimant is a host sate and there is no international transaction, which is one of the essential requirements to acquire the jurisdiction of the convention. Even if there is an international transaction and the respondent is a host state, satellite would not qualify the meaning of an investment within the convention as they fail to fulfill the requirement of host States development.
73 74
Compromis, EJEPA Compromis, EJEPA, Chapter 7.
Apart from the three criteria mentioned in Salini test, Contribution to the host States development has turned out to be the most important indicator of an investment. In some cases tribunals examined and confirmed the projects contribution to the host States development as part of their application of the test75. In Bayindir v. Pakistan, the Tribunal added that this condition was often already included in the other three conditions of the Salini test76.In CSOB v. Slovakia77, the Tribunal pointed to the Conventions Preamble and its reference to economic development. It concluded that this permitted an inference that an international transaction that is designed to promote a States economic development may be deemed to be an investment in the sense of the Convention78. Thus, launching of satellite has done no good to Pshad in all circumstances. The satellite was in operation for providing surveillance services in the territory of claimant. It also assisted the local police in providing the security during the football matches being played in the claimants territory79. The satellite was not put to use for any specific purposes of the respondent. Thus, respondent had reaped no benefits out of the launch of the satellite. Therefore, it is not fulfilling this requirement of an investment within the meaning of the convention. It was also held in RFCC v. Morocco, that the criteria of investment should not be seen as distinct jurisdictional requirements each of which must be met separately. In fact, tribunals have pointed out repeatedly that the criteria that they applied were interrelated and should be looked at not in isolation but in conjunction80. Therefore, satellite is not an investment within the meaning of the convention as it is not meeting the requirement of contribution to the host sate development which must be met as all the requirement of investment are in conjunction. 2]. The Parties are a Contracting State and a National of Another Contracting State i]. Rita Sen is effectively a national of Claimant
75
Fedax v. Venezuela, Decision on Jurisdiction, 11 July 1997, para. 43; RFCC v. Morocco, Decision on Jurisdiction, 16 July 2001, paras. 65, 66. 76 Bayindir v. Pakistan, Decision on Jurisdiction, 14 November 2005, para. 137. 77 Decision on Jurisdiction, 24 May 1999, para. 64. 78 CSOB v. Slovakia, Decision on Jurisdiction, 24 May 1999, para. 64. 79 Compromis, Para 7. 80 RFCC v. Morocco, Decision on Jurisdiction, 16 July 2001, para. 60; Bayindir v. Pakistan,Decision on Jurisdiction, 14 November 2005, para. 130; Jan de Nul v. Egypt, Decision on Jurisdiction, 16 June 2006, para. 91; Malaysian Historical Salvors v. Malaysia, Award, 17 May 2007, paras. 72, 106, 124, 130; Kardassopoulos v. Georgia, Decision on Jurisdiction, 6 July 2007, para. 116.
The term Nationality is described as primary relation between the state and an individual, which gives rise to particular rights and obligations in relation to the individual on the plane of law of the nations or, it is the principle link between individuals and the benefits of the law of nations. 81There are different modes of determining an individuals nationality with reference to the two basic principles of the international jurisprudence of nationality: the ius soli (right of land, or ground) and the ius sanguinis (right of blood). Birthplace, or jus soli, the fact of being born in a territory over which the state maintains, has maintained, or wishes to extend its sovereignty. Bloodline, or jus sanguinis, citizenship as a result of the nationality of one parent or of other, more distant ancestors.
82
The other determinant is dominant and effective nationality.
This principle was laid down in Nottebohm case83. According to the principle of effective or dominant nationality or genuine link, the multiple national is to be treated as only possessing one nationality , either the nationality of the country in which he is habitually and principally resident , or the nationality of the country with which in the circumstances , he appears to be in fact most closely connected . 84 (a). Rita Sen is not an effective and dominant national of the PSHAD According to the principle of the international jurisprudence of nationality, Rits Sens ius soli (right of land, or ground) and the ius sanguinis (right of blood) lies with the applicant as she holds the nationality of it. The principle of effective and dominant nationality will not apply in this case as Rita Sen does not have social fact of attachment, a genuine connection of existence, interests and sentiments together with reciprocal rights and duties. In Nottebohm case, the applicant was denied effective and dominant nationality despite of the fact that the applicant was a habitual resident of the respondent state. The court said that the contention of habitual resident will only apply if the ancestors of the citizen had been habitually residing in the territory of respondent. Thus, by applying the principle laid down in the above case, Rita Sen do not have strong ties with RA to conclude that she is an effective and dominant national of it. (b). Rita Sen has not lost her applicants nationality within the meaning of the treaty
81 82
Oppenhiem , International Law , A Treatise, 588. Alfred Michael Boll, Multiple Nationality and International Law 2007, p.99. 83 The Nottebohm Case (Liechtenstein v. Guatemala) International Court of Justice April 6, 1955 . 1955 I.C.J. 4. 84 the standing of dual-nationals before Iran-United States Claims Tribunal, Virginia Journal of International Law (1984) vol. 24, no. 3, 695-728.
Chapter 7 of EJEPA85 treaty provides that natural person who is a dual national shall be deemed to be an exclusively a national of a state of her dominant and effective nationality. However, it only applies to an investor of a party within the meaning of the treaty. Therefore, following conditions have to be met to apply this provision. Rita Sen is an investor
It has been established above that Rita Sen is not an investor of a party within the meaning of the treaty86 and thus this requirement is not fulfilled. Rita Sen is a dominant and effective national of the claimant
It has also been established above that Rita Sen is a not dominant and effective national of the claimant for not maintaining very close ties with it. Therefore, this requirement has also not been fulfilled. Hence, Rita Sen is an exclusively a national of the applicant as both the requirement of this provision has not been met. Therefore, she does not lose the nationality of the applicant. (c). Rita Sen has not lost her applicants nationality within international law The two basic principles of the international jurisprudence of nationality are ius soli and the ius sanguinis. According to this principle, Rita Sen is national of the applicant. However, it can be further corroborated with various provisions of international law which are as follows. Art 7 (1) (e) of ECN87does not apply to the applicant
Under international law, a nation does not become a party to a treaty until it expresses its "consent to be bound."88 Traditionally, this consent could be expressed in a variety of ways, including through a nation's signature and ratification of the treaty. However, in the present case, applicant has neither signed the treaty nor ratified it. Therefore, the provisions of ECN are not applicable on applicant. Art. 15 Para 2 of the Universal Declaration will not apply
85 86
Compromis, pg. 12. Supra Note 85. 87 European Convention on Nationality , Strasbourg, 6.XI.1997. 88 Vienna Convention on the Law of Treaties arts. 2(1)(b), 11-17, May 23, 1969, 1155 U.N.T.S. 331; see also Anthony Aust, Modern treaty law and practice 75 (2000).
It contains that an individual has a right to change her nationality. Even if the binding character of this provision is not disputed, one could conclude from the state practice that the rule of renunciation of nationality will only apply after adopting the process of naturalization 89. According to this provision, Rita Sen has no right to change her nationality because she has not followed the process of naturalization. This can be further corroborated by the fact that she has not applied for dual citizenship in RA90. Therefore, Rita Sen should not lose the nationality of the applicant. Art 1291 of the Covenant on Civil and Political Rights
Under international law, a nation does not become a party to a treaty until it expresses its "consent to be bound."92 Traditionally, this consent could be expressed in a variety of ways, including through a nation's signature of the treaty. Under modern practice, however, signature is not typically regarded as a manifestation of consent to be bound, especially for multilateral treaties. Instead, consent is manifested through a subsequent act of ratification -- the deposit of an instrument of ratification or accession with a treaty depositary in the case of multilateral treaties, and the exchange of instruments of ratification in the case of bilateral treaties. 93 It has also long been settled that the act of signing a treaty does not obligate a nation to ratify the treaty. Thus, treaty on the proposed contention is mute on the point of non ratification, since any such provision would not be applicable until the treaty was ratified. Therefore, the provisions of ICCPR are not applicable on Pshad. Thus, it has been established that Rita Sen has not lost previous nationality. (d). RA cannot claim on behalf of Rita Sen Article 25(1)94 of the ICSID provides that a dispute shall be between a state and an individual investor. State cannot claim on behalf of its national. However, it has been provided in dispute settlement of EJEPA that either Party, on behalf of a national, may submit to arbitration
89 90
(see Randelzhofer 2000: 506). Compromis, Clarification I. 91 Supra note 12 92 Vienna Convention on the Law of Treaties arts. 2(1)(b), 11-17, May 23, 1969, 1155 U.N.T.S. 331; see also Anthony Aust, Modern treaty law and practice, 75 (2000). 93 Cong. Research Serv., 106TH Cong., Treaties and other agreements: The role of United States Senate, 113 (Comm. Print 2001) [hereinafter CRS Study]. 94 ICSID convention
under this Section a claim that the respondent has breached an obligation under this Chapter and that its national has incurred loss or damage by reason of that breach. Therefore following conditions should not meet in order to prove that RA cannot come on behalf of Rita Sen Rita Sen is a not national of the RA
It has been established that Rita Sen is not a national of the RA. Thus, RA cannot bring a claim on behalf of a Rita Sen. Therefore; this requirement has not been fulfilled. claimant has not breached an obligation under this Chapter
Claimant has not breached the non discrimination clause as Rita Sen has done no covered investment95 in the territory of the respondent. Therefore, claimant has no obligation to treat Rita Sen with no less favorable than its own investors with disposition of investments in its territory. However, even if there is an obligation for the applicant, the obligation needs to be contested with in the domestic system of the applicant as Rita Sen is a national of it. Assuming but not conceding that Rita Sen is a covered investor for the applicant, yet the breakdown of satellite cannot be covered within the meaning of the disposition of asset as applicant has not contributed to its breakdown. Therefore, this provision is not applicable on applicant. Rita Sen has not incurred loss or damage by reason of that breach
It has been established above that applicant has no obligation with in this treaty to the respondent. Thus, Rita Sen has not incurred any loss or damage by reason of breach of obligation. Thus, Applicant should not compensate Rita Sen for the loss of the satellite. Thus, Claimant can bring a claim on behalf of Rita Sen as it has fulfilled the requirements. 3]. Applicant has not given their consent i]. Remedies available have not been exhausted (a). Injury caused was an indirect injury
95
Supra Note 85.
Under international law as per ICJ, the legal remedies must be exhausted before international proceedings are initiated.96 This stems from the basic rule of international law preserving states sovereignty; that is, the state where the violation occurred should have an opportunity to redress it by its own means, within the framework of its domestic legal system. 97 The rule of local remedies is established to be applicable in all cases of indirect injury to a state, that is, injury to its nationals. 98 In cases of indirect injury where the injured alien has established a link with the state whose actions are impugned, the rule of legal remedies is applicable. 99 This link between the alien and a particular state confers jurisdiction on domestic courts and renders the issue subject to the application of local law. 100 The rule of local remedies is thus applicable to indirect injury to a State, that is, injury caused to its nationals or their property, in which case they would have to institute proceedings in the court of the State at fault.101 Thus it is binding on RA to exhaust the remedies as it is coming on behalf of a national [according to them]. 102 (b). Article 26 of the ICSID has been violated Article 26103 provides that if two Parties consent to arbitration under this convention shall, unless otherwise stated in the treaty, not be required to exhaust any local remedies. But if it is stated in the treaty then it becomes a precondition to exhaust such local remedies. The facts of the case clearly state that in case of a dispute the Parties must first resort to conciliation and negotiation and then approach the ICJ if unsatisfied by the decision. Thus it is
96
Interhandel case, USA v. Switzerland ICJ Reports (1959) 6 [Interhandel case hereinafter]; Briggs, Domestic Jurisdiction Reservations, 93 Recueil Des Cours, 309, 323 (1958 I). 97 Finnish Ships Case, 3 RIAA 1479; Interhandel case, Supra note 7, at 26-7. 98 Brownlie, Principles of International law, 497-8 (1963); Waldock, Plea of Domestic Jurisdiction before International Legal Tribunals, 31 BRIT. Y.B. INTL L 96, 114 (1954); Fitzmaurice, The Law and Procedure of the International Court of Justice, 1954-9: General Principles and Sources of International Law, 35 BRIT. Y.B. INTL L 183, 200 (1959) 99 Interhandel case, Supra note 1. 100 Meron, The incidence of the rule of exhaustion of local remedies, 35 BRIT. Y.B. INTL L 84, 95 (1959). 101 Fawcett, Exhaustion of Local Remedies: Substance or Procedure? ,31 BRIT. Y.B. INTL L 452, 458 (1954);. 102 Compromis, Para. 14. 103 See Art.26 of the ICSID Convention.
binding on them to exhaust these remedies first.104 Even if RA wishes to use the exception105 mentioned in the treaty they must first show logical reasoning to go directly to the ICJ. III. ARGUNIA IS NOT ENTITLED TO COMPENSATION FOR THE LOSS OF ITS SATELLITE FROM PSHAD AS A RESULT OF THE COLLISION, PURSUANT TO THE LIABILITY CONVENTION, THE OUTER SPACE TREATY AND THE REGISTRATION CONVENTION.
A]. SPACE LAW TREATIES IS NOT APPLICABLE IN THE PRESENT CASE. Under international law, a nation does not become a party to a treaty until it expresses its "consent to be bound."106 Traditionally, this consent could be expressed in a variety of ways, including through a nation's signature of the treaty. Under modern practice, however, signature is not typically regarded as a manifestation of consent to be bound, especially for multilateral treaties. Instead, consent is manifested through a subsequent act of ratification -- the deposit of an instrument of ratification or accession with a treaty depositary in the case of multilateral treaties, and the exchange of instruments of ratification in the case of bilateral treaties. 107 It has also long been settled that the act of signing a treaty does not obligate a nation to ratify the treaty. Thus, treaty on the proposed contention is mute on the point of non ratification, since any such provision would not be applicable until the treaty was ratified. Therefore, the provisions of space law are not applicable on Pshad. Assuming but not conceding, that space law treaties is applicable in the present case, yet it is not binding due to the following reasons. 1]. The damage is not caused by a space object The Liability Convention applies only to damage caused by a space object. However, the term space object has not been clearly defined in Liability Convention. It is only provided that the component parts of space objects as well as its launch vehicle parts therefore are included in a
104 105
Compromis, EJEPA, Dispute Settlement. Ibid. The exception provides that, either Party, on behalf of a national, may submit to arbitration under this Section a claim that the respondent has breached an obligation under this Chapter and that its national has incurred loss or damage by reason of that breach. 106 Vienna Convention on the Law of Treaties arts. 2(1)(b), 11-17, May 23, 1969, 1155 U.N.T.S. 331; see also Anthony Aust, Modern treaty law and practice 75 (2000). 107 Cong. Research Serv., 106TH Cong., Treaties and other agreements: The role of United States Senate, 113 (Comm. Print 2001) [hereinafter CRS Study].
space object. Thus, it is still unclear whether space debris is at all covered by the convention. 108Nor there is any state practice to clarify the issue at hand. The meaning of the term being such obscure and ambiguous recourse may be made to the travaux preparatories to the convention. 109 In the debate on the space object issue some states indicated a desire to include a broader definition of component parts to the Liability Convention including objects intentionally or unintentionally detached, thrown or launched from a space craft.110 However, this definition was not accepted in the text of the convention- a fact that majority of states did not approve the broad definition. In addition, the doctrinal commentary on the convention text and travaux preparatories has demonstrated that debris does not fall within the scope of space object.111 Therefore, convention does not apply in the present case. 2]. Proximate Causation may not be established As the name of the convention suggests, before compensation may be recovered under the Liability Convention, the claimant state has to show that it has suffered damage caused by space object. In addition to the space object element discussed above, another condition also is to be fulfilled namely; a proximate casual connection between the damage and the malfunctioning of the space object shall be established.112 This means the claimant is required to show that the harm flowed directly or immediately from, and as the probable result of the malfunctioning of the space object.113 No such proximate casual connection exists in the present case. There is nothing in the facts to show that the harm was caused directly. 3]. Space object does not include space debris
108 109
Hobe 1992 , p.197 Ibid. 110 The space object debate as cited in Christol 1984 , p.84 111 Baker 1988 p.213; Wirin 1992 , p.50 112 See Bedjaoui 1987 p.361 ; Gorove 1983 p.375; Stamps 1990 , p. 154 113 Christol 1980 p.351. in general international law principle of proximate causation has been stated simply that of normal consequence.
If a functional approach is taken, any space instrumentality in its operational state is a space object.114 The definition of operational state is derived from Article 7(b) of the Liability Convention115 and extends from time of space objects launching or attempted launching or at any other stage thereafter until its descent.116 In the present case the Space junk was a dislodged portion of a satellite that had been taken out of the space program twenty years ago but left to orbit117. Thus it was not operational. 4]. Registration convention is not applicable since Pshad has no jurisdiction over the object in question The basic purpose of the Registration Convention is the identification of the space object. A well designed system of registration may provide for identification of space objects 118 and for attribution of nationality. The latter is required for purpose of jurisdiction, international responsibility, return of fallen space objects and liability 119 and for preventing collisions between space objects.120 But, Registration Convention is necessary only for a space object according to Article 1(b) of the convention. However, it is still unclear which objects launched into space, other than active satellites are included in this description. 121 Moreover, as is clear from Article 4, identification of space objects is principally oriented to regulation of satellites with fixed orbital parameters; therefore, the need to register space objects in varying objects may prove problematic. 5]. Pshad is not liable to pay compensation to Rita Sen
114
B.Cheng, Convention on International Liability for damage caused by Space Objects in N. Jasentuliyna and R.S.K Lee. Manual on Space Law:Vol.1, p.83 115 Convention on international liability for damage caused by space objects, UNGA Res.2777 29 November 1971, entered into force 9 October 1973 116 Cheng, supra, note 7 117 Compromis, Para 9. 118 P.G Dembling and S.S Kalsi, Pollution of Mans Last Frontier: Adequacy of Present Space Environmental Law in Preserving the Resources of Outer Space (1973),20 Netherlands Intl LJ 125 119 A.A Cocca,Convention on Registration of Objects Launched into Outer Space in Manual on Space Law: Vol.1, C.S Sheldon and B.M DeVoe, UN Registry of Space Vehicles (1970),13 Colloquium L Outer Space , p.127 120 I.I Kotlyarov, Space Monitoring Facilities and Environment Protection (1982), 25 Colloquium L Outer Space 121 Christol, supra note 6
The Liability Convention sets a state to state liability; it does not consider the relationship between a state and a private company or individual for which state is liable or responsible. 122 Article 7123 of the Liability Convention states clearly that the provisions of the convention do not apply to Nationals of that launching state and Foreign nationals participating in the launch. Therefore, it is concluded that nationals of the launching state cannot seek compensation under the Liability Convention whether they are on earth or in space. Since Rita Sen is a Pshadi citizen, she is not entitled to compensation under the provisions of the said convention. 6]. Argunia authorization of the satellite is contrary to Article IX of the Outer Space Treaty Argunia violates its duty to conduct all outer space activities with due regard to the corresponding interests of all other parties to the treaty pursuant to Article IX 124. This is a general rule of international law and was applied by the court in the 1974 Fisheries Jurisdiction case125. According to that ruling, a State has to take into consideration legitimate interests of other States when in exercises freedom of action. The surveillance made by the satellite created a potential risk of violation of privacy. Civil society groups and scholars in RA had voiced their concern over the potential of the satellites collected information to violate right to privacy, and several political dissidents from Pshad claimed that the information could be taken by their government to control political opposition and to pursue emigrants or their families. Thus it violated the interests of the Pshadi citizens. 126
122
Proceedings UN International Institute on Air and Space Law Workshop on Capacity Building in Space Law, p.28 123 Article 7 of the Liability Convention provides that, The provisions of this Convention shall not apply to damage caused by a space object of a launching State to: (a) Nationals of that launching State; (b) Foreign nationals during such time as they are participating in the operation of that space object from the time of its launching or at any stage thereafter until its descent, or during such time as they are in the immediate vicinity of a planned launching or recovery area as the result of an invitation by that launching state. 124 Treaty on Principles Governing the Activities on States in the Exploration and Use of Outer Space, including the Moon and other celestial Bodies, 610 U.N.T.S. 205 (1976). [Outer Space Treaty]. 125 Fisheries Jurisdiction case, (U.K v Ice.), 1974 I.C.J 1, 26-7. 126 Compromis, Para. 8.
REQUEST FOR RELIEF

In light of the questions presented, arguments advanced and authorities cited, this Honble Court may be pleased to adjudge and DECLARE that the Export Prohibition invoked by RA is inconsistent with International Law and does violate EJEPA DECLARE that RA has approached the Court with invoking in wrong Jurisdiction DECLARE that RA is not entitled to compensation by Pshad due to loss of its satellite as a result of collision The Court may also be pleased to pass any other order, which the Court may deem fit in light of justice, equity, and good conscience.
RESPECTFULLY SUBMITTED, ______________________
AGENTS FOR THE APPLICANT

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AT THE PEACE PALACE THE HAGUE, THE NETHERLANDS

PEOPLES DEMOCRACY OF PSHAD (THE APPLICANT) V. REPUBLIC OF ARGUNIA (THE RESPONDENT)

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INDEX OF TERMS AND ABBREVIATIONS

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Res Sess Supra UDHR UN UN GAOR UNCOPUOS UNGA VCLT WTO

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EYE OUT (EO)

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