International Environment Moot Court Competition, 2012 TEAM CODE: 12 18 IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE QUESTIONS RELATING TO A NUCLEAR ACCIDENT AND SOVEREIGN DEBT

FEDERAL STATES OF AMUKO V REPUBLIC OF RENTIERS

MEMORIAL FOR THE APPLICANT

THE INTERNATIONAL ENVIRONMENT LAW MOOT COURT COMPETITION, 2012

International Environment Moot Court Competition, 2012 TABLE OF CONTENTS

TABLE OF CONTENTS.ii-iv LIST OF ABBREVIATIONv INDEX OF AUTHORITIES.vi-xi STATEMENT OF JURISDICTION..xii QUESTIONS PRESENTED..xiii STATEMENT OF THE FACTS.xiv SUMMARY OF THE ARGUMENT..xv

ARGUMENT 1. AMUKO HAS THE JUS STANDI TO BRING THE PRESENT CLAIM..1 1.1 Amuko Has The Standing Regarding The First Claim. .1 1.2 Amuko Has The Standing Regarding The Second Claim. 1 1.2.1 Amuko companies are the nationals of Amuko. ...1 1.2.2 Local remedies have been exhausted.2 2. RENTIERS SHALL BE LIABLE FOR COMPENSATION ACCORDING TO ARTICLE 10 OF THE IAEA ASSISTANCE CONVENTION3 2.1 Federal State of Amuko suffered damages as a result of assistance provided to the Republic of Rentiers3 2.2 There is a legal obligation of Republic of Rentiers to reimburse Amuko for the compensation program established by the Amuko Congress.4

II

International Environment Moot Court Competition, 2012 2.2.1 There was no intent of willful harm by Amuko during the accident.4 2.3 The restrictive interpretation of Article 10 of the IAEA Assistance Convention is against the spirit of the international law. .5 2.3.1 Treaty must be interpreted as a whole..5 2.3.2 Treaty must be interpreted in a good faith6 3. THE REPUBLIC OF RENTIERS HAS VIOLATED INTERNATIONAL LAW BY FAILING TO COMPENSATE AMUKO ...6 3.1 The Act of Rentiers is a wrong under 1963 Vienna Convention on Civil Liability for Nuclear Damage7 3.2 Republic of Rentiers had to compensate Amuko under Convention on Supplementary Compensation for Nuclear

Damage...8 3.3. Republic of Rentiers is under the obligation to the general international principles...9 4. RENTIERS EXPROPRIATED WITHOUT JUST COMPENSATION THE INVESTMENTS OF AMUKO COMPANIES IN THE SOVEREIGN BONDS OF RENTIERS THROUGH DEFAULT AND DEBT RESTRUCTURING. .10 4.1 Purchase of Sovereign Bonds Amount To Investment...10 4.2 The Action of Rentiers Amounted Expropriation ..12 4.3 Rentiers Did Not Provide Adequate Compensation ..13 4.3.1 Payment of compensation only in accordance with domestic law is in violation of principles of international investment law. ..14 4.3.2 The aliens must be compensated according to international minimum standard. ...15
III

International Environment Moot Court Competition, 2012 4.4 Breach of State Contract Incurs State Responsibility16 5. THE DEFAULT IN SOVEREGN BOND IS NOT EXCUSED BY ANY OF THE DEFENSES AS PLEASED BY THE RESPONDENT. 17 5.1 Rentiers Cannot Invoke The Plea Of Necessity To Preclude Itself From its International Obligation. .17 5.2 It is inappropriate for Rentiers to invoke the principle of force majure for the closure of the nuclear plants..19 5.2.1 The change of circumstances was present while concluding the treaty..19 5.2.2 The situation of force majeure is due to the conduct of the State invoking it.................19 5.3. Precautionary principle does not justify the act of Nuclear power plant closure.20

6. CONCLUSION/PRAYER..22

IV

International Environment Moot Court Competition, 2012

List of Abbreviations RABBIT RNRA AME IAEA ILC ILR ICJ PCIJ UN NAFTA OECD ELSI G.A. Res. RIAA Rentiers-Amuko Bilateral Business Investment Rentiers Nuclear Regulatory Agency Amuko Ministry of Energy International Atomic Energy Agency International Law Commission International Law Review International Court of Justice Permanent court of International Justice United Nations North American Free Trade Agreement Organization for Economic Cooperation and Development Elettronica Sicula General Assembly Resolution Reports of International Arbitral Awards

International Environment Moot Court Competition, 2012

INDEX OF AUTHORITIES Case Laws ADF Group Inc. v. United States of America (2003) Ahmadou Sadio Diallo, Republic of Guinea v. Democratic Republic of Congo (Preliminary Objections ), (2007)

Amoco International Finance v. Iran, Partial Award No. 310-56-3, 15 (1988) Azurix Corp. v. The Argentine Republic Case Concerning Elettronica Sicula S.P.A. (ELSI) (United States of America v. Italy), 1989 Case Concerning Elettronica Sicula Spa (ELSI) , ICJ Rep, at Paras 61 and 62 (1989) Ceskoslovenska Obchodni Banka, A.S. v. The Slovak Republic (1999) Chorzw Factory Case (1928) De Sabla Case (1934) Fedax N.V. v. Venezuela (1998) Glamis Gold, Ltd. v. United States, (2009) Inc v. Canada (2000) Israel v. Bulgaria, ICJ Pleadings (1955). Losinger Case, PCIJ, (1936) Metalclad Corporation v. Mexico (2000) Mondev International LTD v. United States of America (2002) New Zealand v. France, ICJ Reports, 1995. Rainbow Warrior (New Zealand v. France), (1990)
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International Environment Moot Court Competition, 2012

Republic of Hungary v. The Czech and Slovak Republic, ICJ Reports, 1997. Russian Indemnity case Saluka Investments BV (The Netherlands) v. The Czech Republic Saudi Arabia v Arabian-American Oil Co Shufeldt Case, PCIJ, (1930) Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports, 1994 Texaco v Libya (Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libya) (1977) Texaco v. Libya The Corfu Channel Case (U.K. v. Alb.), (1949) The Loewen Group, Inc. and Raymond L. Loewen v. United States of America

ARTICLES, ESSAYS AND JOURNALS

Andrea

Laura

Mackielo

ILSA

Journal

of

International

&

Comparative

Law

Fall, Core Rules of International Environmental Law, 16ILSA J Int'l & Comp L 257, 2009.

Cornelius F. Murphy, Jr. Limitations upon the Power of a State to Determine the Amount of Compensation Payable to an Alien upon Nationalization, R.B. LILLICH, THE VALUATION OF NATIONALIZED PROPERTY IN INTERNATIONAL LAW 58, 59 (1975)

D. Bowett, State Contract with Aliens, 59 BRIT. Y.B. INTL L 49, 68 (1988). Daniel Bodansky, Remarks: New Developments in International Environmental Law, 85 Am. Soc'y Int'l L. Proc. 401, 413 (1991)

VII

International Environment Moot Court Competition, 2012

Daniel Bodansky, Scientific Uncertainty and the Precautionary Principle, 33 Env't 4, 8 (Sept. 1991)

Daniel K. Tarullo, Conference on Sovereign Debt Restructuring: The View From The Legal Academy: Neither Order Nor Chaos: The Legal Structure Of Sovereign Debt Workouts, 53 Emory L.J. 657 (2004)

Denver Journal of International Law and Policy, Liability and Compensation for Harm Caused by Nuclear Activities, 35 Denv. J. Int'l L. & Pol'y 13 2006.

Dupuy, in Jaye Ellis, Overexploitation of Valuable Resource? New Literature on the Precautionary Principle, 17 European Journal of International Law 445, 448 (2006).

Georgetown International Environmental Law Review, 17 (2004) Gregory D. Fullem, The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty, 31 Willamette L. Rev. 495 (1995).

H.W.Shawcross, The Problems of Foreign Investment in International Law, 102 RECUEIL DES COURS 339 (1962).

Harvard Research, Draft Conventions and Comments on Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners(1929), 23 AJIL Special Supp. 167.

Horacio T. Liendo, Sovereign Debt Litigation Problems in the United States: A Proposed Solution 9 Or. Rev. Int'l L. 107( 2007)

ICSID Review-FILJ 251 (1999) Indirect Expropriation and the Right to Regulate in International Investment Law, OECD Doc. No. 2004/4, 10 (2004)

VIII

International Environment Moot Court Competition, 2012

International Minimum Standard of Treatment, Adriana Snchez Mussi, available at http://asadip.files.wordpress.com/2008/09/mst.pdf

James E. Hickey, Jr. & Vern R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 Va. Envtl. L.J. 423 (1995)

Juan Pablo Bohoslavsky, Responsibility for Abusive Granting of Sovereign Loans 14 Law & Bus. Rev. Am. 495 ( 2008)

Lisa Bennett , Are Tradable Carbon Emissions credits investments? characterization and ramifications under international investment law 85 N.Y.U.L. Rev. 1581 (2010);

Orrego Vicuna, Some International Law Problems Posed by the Nationalization of the Copper Industry in Chile, 67 AM. J. INTL. L 711, 718-719 (1973).

Owen McIntyre and Thomas Mosedale, The Precautionary Principle As A Norm of Customary International Law, 9 Journal of Environmental Law 221, 231 (1997).

P.M. Norton, A Law of the Future or A Law of the Past? Modern Tribunals and the International Law of Expropriation, (1991) 85 AJIL 474.

Rudolf Dolzer, New Foundations Of The Law Of Expropriation Of Alien Property, 75 AJIL 553 (1981).

State Responsibility and Liability for Nuclear Damage, Denver Journal of International Law and Policy Winter, 35 Denv. J. Int'l L. & Pol'y 67, 2006.

State Responsibility for The Exportation Of Nuclear Power Technology, 74 Va. L. Rev. 1011 (1988). Anthony DAmato Northwestern University School of Law Kirsten Engel University of Arizona.

BOOKS, TREATISES AND OTHER MATERIALS

IX

International Environment Moot Court Competition, 2012

Alina Kaczorowska , PUBLIC INTERNATIONAL LAW, , Old bailey press London (2002) BLACKS LAW DICTIONARY, 8th Ed., 2004. Brownlie, Ian, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, Oxford University Press, Sixth Ed. 2003

C.N. Brower & J.D. Brueschke, THE IRAN-UNITED STATES CLAIMS TRIBUNAL (The Hague: Martinus Nijhoff Publishers, 1998)

Dixon Martin, "TEXTBOOK ON INTERNATIONLA LAW", Sixth Edition (oxford university press: oxford 2007).

G.H. Aldrich, THE JURISPRUDENCE OF THE IRAN-UNITED STATES CLAIMS TRIBUNAL (Oxford: Clarendon Press, 1996)

INTERNATIONAL LAW, CLASSIC AND CONTEMPORARY READING, edited by Charlotte Ko. And Paul F. Diehl;Lynne Rienner Publishers, Boulder London 2000.

J.G Starke, Introduction to International Law, Butterworths Tenth Edition 1998. Louis Henkin ET. Al., INTERNATIONAL LAW CASES AND MATERIALS, American Casebook Series, West publishing Co. Second Ed. 1987

Mouri, THE INTERNATIONAL LAW OF EXPROPRIATION AS REFLECTED IN THE WORK OF THE IRAN-U.S. CLAIMS TRIBUNAL (Dordrecht: Kluwer Academic, 1994)

OPPENHEIMS INTERNATIONAL LAW, INTRODUCTION AND PART I, (Sir Robert Jennings and Sir Arthur Watts eds.) Universal Law Pub. Co. Pvt. Ltd., First Indian Reprint 2003

Shaw, Malcolm N., INTERNATIONAL LAW, Cambridge University Press, Fifth Ed. 2005.

UN DOCUMENTS, INTERNATIONAL INSTRUMENTS, DECLARATIONS Charter for Economic Rights and Duties
X

International Environment Moot Court Competition, 2012 Commentary on ILC draft Articles on State Responsibility Convention on Supplementary Compensation for Nuclear Damage, 1997. G.A. Res. 1803, 17 UN GAOR Supp (No 17) G.A. Res. 56/83, Annex art. 1-2, U.N. Doc. A/RES/56/83 (Dec. 12, 2001) ILC Draft Articles on State Responsibility. International Atomic Energy Agency Assistance Convention International Atomic Energy Agency Convention on Early Notification of a Nuclear Accident North American Free Trade Agreement Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage 1997. Stockholm Declaration adopted by the 1972 Stockholm Conference The Declaration on Environment and Development, adopted by the 1992 Conference held in Rio United Nations Resolution 1803. Vienna Convention on Civil Liability for Nuclear Damage 1963. Vienna Convention on the Law of Treaties, 1969.

STATEMENT OF JURISDICTION
XI

International Environment Moot Court Competition, 2012

The government of The Federal States of Amuko and the Republic of Rentiers agreed to submit the matters to the International Court of Justice under a Special Agreement pursuant to Article 36, paragraph 1, of the Statute of the International Court of Justice. Both Parties recognize and submit to the jurisdiction of the International Court of Justice to resolve this matter

XII

International Environment Moot Court Competition, 2012

QUESTIONS PRESENTED

A. Does the Federal States of Amuko have the jus standi to bring the following claim before the

International Court of Justice?

B. Has the Republic of Rentiers violated international law by failing to properly compensate and/or reimburse Amuko for expenses related to: the deaths of two Amuko ministry of energy employees; the property losses suffered by the former residents of Robelynch; and the medical monitoring and related medical expenses of the former residents of Robelynch?

C. Has the Republic of Rentiers violated international law by expropriating without just

compensation the investments of Amuko companies in the sovereign bonds of Rentiers through default and debt restructuring?

XIII

International Environment Moot Court Competition, 2012 STATEMENT OF FACT

An earthquake occurred in the Rentiers due to which its nuclear plants got damaged and as a result, nuclear reaction was there. Rentiers then notified Amuko and asked help to assist Rentiers. But, while assisting Rentiers, Amuko suffered from nuclear and radiological damages. Amuko then established compensation fund for the people. Then, Amuko asked reimbursement with Rentiers in accordance with Article 10 of the IAEA Assistance Convention. But it refused to do so, instead, Rentiers giving various reasons decided to close other nuclear plants which were the investments of Amuko. Due to this difference and not being able to solve it through negotiation, the case was brought before ICJ.

XIV

International Environment Moot Court Competition, 2012 SUMMARY OF ARGUMENT

A. Amuko has the jus standi to bring the following two claims against Rentiers in the ICj. The first

claim being a direct one, arising from the violation of the treaty obligation of Rentiers as well as principle of international law. Amuko can espouse the second claim by the exercise of the right of diplomatic protection vis--vis its nationals. B. Rentiers violated international law by not reimbursing Amuko in accordance with Article 10 of IAEA Convention and general principles of international law. Article 10 of IAEA Convention should not be interpreted in restrictive way and the objective of the Convention should be taken into account. C. Rentiers violated international law by expropriating the investment of the Amuko companies. The purchase of sovereign bonds amount to investment according the RABBIT as well as general international law. The fresh start act which would enable the investors to get 10% of what they would otherwise get amounted to indirect expropriation for which adequate compensation must be provided which has not been provided by the Rentiers.
D. Rentiers cannot take the defense of necessity/force majeure and precautionary principle as there

was no threat to any of vital interest and even if so conceded, the debt restructuring was not the only means available.

XV

International Environment Moot Court Competition, 2012 1. AMUKO HAS THE JUS STANDI TO BRING THE PRESENT CLAIM.

1.1 Amuko has the standing regarding the first claim. The claim regarding the compensation according to the IAEA and customary international law is a direct claim against the respondent. When a direct breach of international law is committed against a state, such as when the breached obligation flows from a treaty, 1 the aggrieved State is entitled to bring a suit2 as well as claim for reparation.3 A State is considered injured, if the obligation breached is owed to that state individually or if it is specially affected by a breach of an obligation. 4 The breach by Rentiers of its obligation under the IAEA and customary international law caused a direct injury to Amoko thus provided it with the authority to bring the claim against Rentiers. 1.2 Amuko has the standing regarding the second claim. The claim regarding expropriation being an indirect claim i.e. on behalf of the Amuko companies, Amuko will have the right to exercise diplomatic protection vis--vis those companies if the requirements of nationality of claims and exhaustion of local remedy is fulfilled. 1.2.1 Amuko Companies Are The Nationals Of Amuko.

Phosphates in Morocco, PCIJ Ser.A./B., No. 74, 1938; Aerial Incident of July 27, 1955 (Israel v. Bulgaria) ICJ Pleadings (1955) 530; Case Concerning Elettronica Sicula S.P.A. (ELSI) (United States of America v. Italy), 1989 I.C.J. 15; Rainbow Warrior (New Zealand v. France), 20 UNRIAA 217 (1990). See also Oppenheim.s International Law-Vol. I (Sir R. Jennings and Sir A. Watts ed., 9th edn., New York: Longman, 1996) at 512; R.Y.Jennings, .General Course in International Law., 121 Recueil des Cours, 323 (1967-II); D.J. Harris, Cases and Materials on International Law, (5th edn., London: Sweet & Maxwell, 1998) at 85; I. Brownlie, Principles of Public International Law (6th edn., Oxford: Oxford University Press, 2003) 472.
2 3

Alina Kaczorowska , Public International Law, Old bailey press London (2002) 175

Oppenheim, at 511-512; The Panevezys Saldustiskis Railway Case (Estonia v. Lithuania), (1939) PCIJ Rep, Series A/B, No. 76; The Mexican Eagle Oil Company Dispute, Grotius Socy. (1957); Corfu Channel Case (Merits), I.C. J. 1949.
4

Articles on State Responsibility, 42(a), 42(b)(i).

International Environment Moot Court Competition, 2012 Corporations, like individuals are the nationals of a state and diplomatic protection can be exercised on them as well.5The Amuko companies being incorporated in Amuko are presumed to be Amuko nationals.6 This presumption can be rebutted when a company is controlled by foreign nationals in another State and has no significant business dealings in the State of incorporation.7 In absence of any evidence to rebut the presumption, the Amuko companies are held to be the nationals of Amuko. 1.2.2 Local Remedies Have Been Exhausted. Local remedies are deemed to have been exhausted when a decision has been rendered by the highest tribunal prior to submission before this Court.8 The affected Amuko companies sought compensation in the domestic courts of Rentiers and those claims were denied.
9

The Court applied the rule of

exhaustion of local remedies together with the rule of reason, which required that the respondent should prove the effectiveness of the further remedy in order to preclude the admissibility of the international claim10. It is for the respondent to convince the Court that there were effective remedies in its domestic legal system that was not exhausted.11

Barcelona traction case, OPPENHEIMS INTERNATIONAL LAW, INTRODUCTION AND PART I, (Sir Robert Jennings and Sir Arthur Watts eds.) Universal Law Pub. Co. Pvt. Ltd., First Indian Reprint (2003)517
6

Draft Articles on Diplomatic Protection, Article 9.; also see Tim Hiller, principles of public international law, pg 175, Cavendish publishing limited second edition (1999 )
7

Draft Articles on Diplomatic Protection, Article 9.

8

Case Concerning Eletronica Sicula S.P.A. (ELSI) (United States of America v. Italy),I.C.J. Rep., 1989, 15; Ambatielos Arbitration, 23 I.L.R. 306; Trindale, The Rule of Exhaustion of Local Remedies, at p. 58 (Cambridge University Press, 1983).
9

Agreed fact Para 35

1 10

ICJ, Case Concerning Elettronica Sicula Spa (ELSI) , Judgment 20 JulyICJ Rep, at para 61 and 62 (1989)
1 11

ICJ , Ahmadou Sadio Diallo, Republic of Guinea v. Democratic Republic of Congo (PreliminaryObjections ), Judgment of 24 May 2007.

International Environment Moot Court Competition, 2012 Also, the provision in any contract cannot take away from a state, its right to exercise diplomatic protection vis--vis its nationals.12
2. Rentiers shall be liable for compensation according to Article 10 of the IAEA Assistance

Convention. 2.1 Federal State Of Amuko Suffered Damages As A Result Of Assistance Provided To The Republic Of Rentiers. On 8 February 2010, in accordance with Article 2.2 of the IAEA Assistance Convention, Rentiers requested assistance from Amuko.13 On 9 February 2010, in accordance with Article 2.3 of the IAEA Assistance Convention, Amuko promptly responded that the Amuko Ministry of Energy (AME) would remove the fuel rods and transport them via highways in specially manufactured vehicles.14

On 12 February 2010, one of the vehicles, while in the territory of Amuko, crashed through a guard rail and tumbled down a 75-meter ravine. 15 As a result, the following damages took place:

1 12

The driver and one security guard, also an AME employee, were killed.16 The property losses suffered by the former residents of Robelynch.17 The medical monitoring and related medical expenses of the former residents of Robelynch. 18

Louis Henkins et al International Law Cases and Materials American casebook series second edition, west publishing co. (1987) 1056.
13

Para 18 of the Agreed Facts Para 19 of the Agreed Facts Para 21 of the Agreed Facts Para 22 of the Agreed Facts Para 25 of the Agreed Facts

14

15

16

17

International Environment Moot Court Competition, 2012 Thus, the above damages suffered to Amuko because of its fulfilling of the duty as per Article 2 of the Convention on Early Notification of a Nuclear Accident. 2.2 There Is A Legal Obligation Of Republic Of Rentiers To Reimburse Amuko For The Compensation Program Established By The Amuko Congress. The damages, as previously proven, were the one which occurred during providing assistance to the Rentiers. Thus, as per Article 10 of the IAEA Assistance Convention, the Republic of Rentiers shall take all the necessary measures to fully reimburse the Federal States of Amuko for the compensation program established by the Amuko Congress. 2.2.1 There Was No Intent Of Willful Harm By Amuko During The Accident. Article 10 of the IAEA Assistance Convention is a provision which gives the assisting state the security towards assistance. It encourages the assisting state by providing the compensation in case of any loss to the assisting state. Article 10(2) makes it clear that countries that render aid to others who face harm will not be liable for death, harm to property, or environmental damage during rescue efforts unless the harm is willful.19 But, in this case, Amuko Congress established a compensation fund for people affected by the accident near Robelynch. The duty of Rentiers was to compensate Amuko, but instead, it took excuse saying that there was no environmental damage and the incident took place in the territory of Amuko which does not come under the jurisdiction of the Article. Thus, it shall be the legal obligation of Rentiers to fully reimburse Amuko for its expenses during the assistance to Rentiers. 2.3 The Restrictive Interpretation Of Article 10 Of The IAEA Assistance Convention Is Against The Spirit Of The International Law.
18

Para 25 of the Agreed Facts

19

Georgetown International Environmental Law Review Georgetown International Environmental Law Review Fall, 17 (2004)

International Environment Moot Court Competition, 2012

2.3.1 Treaty Must Be Interpreted As A Whole. Any treaty shall be interpreted in the light of the text and also on the basis of its objective and preamble.20 It is a cardinal principle of interpretation that words must be interpreted in the sense which they would normally have in their context, unless such interpretation would lead to something unreasonable or absurd.21 The terms cannot be determined abstractly but in their context and by reference to the objective and the purpose of the treaty.22 Amuko had helped Rentiers during its nuclear reaction. While providing assistance, Amuko suffered damages. The objective of the IAEA Assistance Convention was to provide security to the assisting state if any harm occurred to it. Thus, Article 10 is to be interpreted in the context of whole and not only by certain words. The objective of the convention will not be meeting if only the part of the treaty is taken. Thus, to give the words, a proper meaning and to encourage other states to assist during nuclear accidents, Article 10 (the requesting state) should be applied only in the context of environmental damages or no state will be encouraged to help other state in future. 2.3.2 Treaty Must Be Interpreted In A Good Faith. Amuko and Rentiers both are parties to the IAEA Assistance Convention.23 They must both follow the treaty in good faith and it must be applied to both. The principle of Pacta Sunt Servanda 24 is an important principle of international law. Thus, Rentiers is to be abided by it.
20

Vienna Convention on the Law of Treaties, Article 31(1); Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, I.C.J. Reports 1994, pp. 21-22, Para. 41
21

Case of Polish Postal Service in Danzig, PCIJ (Series B, number II, page 39) ILC, Yearbook, pg 242 Agreed Facts Vienna Convention on the Law of Treaties, Article 26

22

23

24

International Environment Moot Court Competition, 2012 The accident took place in Amuko but while providing assistance to Rentiers. Thus, the good faith shall be that Amuko shall get the compensation for helping Rentiers. The phrase requesting state is only applicable to the environmental damages and not to other damages. Thus, Rentiers shall be liable for compensating Amuko Congress in accordance with Article 10 of the IAEA Assistance Convention. 3. The Republic of Rentiers has violated international law by failing to compensate Amuko. As a matter of customary law, reaffirmed by the UN International Law Commission, breach of an international obligation gives rise to an independent and automatic duty to cease the wrongful act and to make reparation.25 International liability for risk means in this field that even without any actual damage to the environment of a foreign country a state would be liable for activities which could possibly ceases such damage.26 A state that exports, or allows to be exported, dangerous technology to another state may arguably be liable under the international law of "state responsibility," regardless of the fact that the injury occurs outside the exporting nation's territory and involves foreign nationals, rather than citizens of the state.27 Nuclear activities are included in the general obligation resulting from customary international law.28 3.1 The Act of Rentiers Is a Wrong Under 1963 Vienna Convention On Civil Liability For Nuclear Damage. The general principles of nuclear liability under Articles II and IV give rise to absolute liability 29, from the operator's side. The claimant is only required to prove the relationship of cause and effect between
25

G.A. Res. 56/83, Annex art. 1-2, U.N. Doc. A/RES/56/83 (Dec. 12, 2001), Articles 30(a), 31(1)

26

International Law, Classic and Contemporary Reading, edited by Charlotte Ko. and Paul F. Diehl;Lynne Rienner Publishers, Boulder London.
27

State Responsibility for The Exportation Of Nuclear Power Technology, 74 Va. L. Rev. 1011 (1988). Anthony DAmato Northwestern University School of Law Kirsten Engel University of Arizona.
28

35 Denv. J. Int'l L. & Pol'y 67, State Responsibility and Liability for Nuclear Damage, Denver Journal of International Law and Policy Winter, 2006

International Environment Moot Court Competition, 2012 the nuclear incident and the damage for which compensation is sought, and the operator cannot escape liability by proving diligence on their part.30Nuclear activities are governed by the strict-liability regime.31 Reinter is the operator of the nuclear power, which in turn makes it absolutely liable for every acts resulted by the nuclear activities. Reinters assistance was on the other hand the cause which when was followed by the accident then resulted into the explosion of radioactive gas into the air that brought the effect of evacuation of the people from the village. The case of property loss of people is therefore directly related with the assistance provided to Reinters.32 The remedy of legal liability and

compensation is feasible where the damage is identifiable, traceable to a state of origin, and reasonably foreseeable by that state. 33 The act of Rentiers is a wrong as suggested upon this convention and according to the Art 6 (para 6) Compensation for damage caused to the means of transport upon which the nuclear material involved was at the time of the nuclear incident shall not have the effect of reducing the liability of the operator in respect of other damage. Henceforth, this explains the violation of general principle of international law from the part of Rentiers by avoiding compensating Amuko for the damages caused by the nuclear accident.

29

The 1997 Vienna Convention on Civil Liability for Nuclear Damage and the 1997 Convention on Supplementary Compensation for Nuclear Damage, Explanatory Texts, A comprehensive study of the Agency's nuclear liability regime by the IAEA International Expert Group on Nuclear Liability (INLEX) to aid the understanding and authoritative interpretation of that regime (2004)
30

ibid

31

35 Denv. J. Int'l L. & Pol'y 13 Copyright (c) 2006 Denver Journal of International Law and Policy, Liability and Compensation for Harm Caused by Nuclear Activities,
32

Agreed Fact 16-25

33

Trail Smelter Arbitration, The Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (Apr. 9), The efficacy of international environmental law: a personal reflection.

International Environment Moot Court Competition, 2012 3.2 Republic Of Rentiers Had To Compensate Amuko under Convention On Supplementary Compensation For Nuclear Damage. Art 3 [1(a)] of the convention clearly mentions Compensation in respect of nuclear damage per nuclear incident shall be ensured by the installation state. This provision has created an obligation on the side of installation state for all nuclear damage that occurs due to the nuclear incident. Nuclear damage applies to property losses suffered by former residents of Robelynch as well as medical monitoring and related medical expenses of them.34 The installation state of the nuclear power i.e Reintiers 35 hence should have compensated for the nuclear damage in Robelynch. Also, art 3[2(b)] of the same convention explicitly mentions Compensation for nuclear damage is to be distributed equitably without discrimination on the basis of nationality, domicile or residence [also in art XIA of 1963 Convention] . The convention in its Article VII.2 for the case where the operator is itself a State incident, the State (or its constituent sub-division) has to ensure the payment of claims for compensation, if any, of its liability as operator.36

3.3. Republic Of Rentiers Is Under the Obligation To The General International Principles. Principle 21 of the Stockholm Declaration adopted by the 1972 Stockholm Conference on the Human Environment stresses that states have the responsibility to ensure that activities under their jurisdiction or control do not cause damage to the environment of other states or areas beyond national

34

Protocol to Amend The Vienna Convention on Civil Liability For Nuclear Damage 1997, Art II 2[ ii, iii, iv] Agreed Facts, Para 3 ibid

35

36

International Environment Moot Court Competition, 2012 jurisdiction.37 Principle 21 of Stockholm Declaration formulates a customary international law rule, which can be considered as being the general foundation for the prohibition of transfrontier pollution. 38 Principle 22 further explains the scheme of liability and compensation of the environmental damage caused to areas beyond their jurisdiction. The nuclear damage although took place in Robelynch which is beyond the jurisdiction of Rentiers, but since the cause of the accident that resulted into damage was the assistance provided to the Rentiers by ministry of Amuko, it makes Rentiers liable to compensate for the damage. The Declaration on Environment and Development, adopted by the 1992 Conference held in Rio de Janeiro reaffirms the same principle in its Principle 13.39 The Gut Dam case also consists of an instance of state practice inasmuch as Canada had agreed to indemnify the United States for any damage caused by the dam.40 In cases of Mura River case41 and Juliana Ship42, there is an implicit assumption that other states' environment should not be damaged, and if it were, those states deserve to be compensated.

37

Conference on the Human Environment, Stockholm, Swed., June 5-16, 1972, Report of the United Nations Conference on the Human Environment, Principle 21, U.N. Doc. A/CONF.48/14/REV.1 (Jan. 1, 1973)
38

International Law, Classic and Contemporary Reading, edited by Charlotte Ko. and Paul F. Diehl; Lynne Rienner Publishers, Boulder London; 397
39

Conference on Environment and Development, Rio de Janeiro, Braz., June 3-14, 1992, Report of the United Nations Conference on Environment and Development, vol. I, Principle 2, U.N. Doc. A/CONF.151/26/REV.1(VOL.I) (Jan. 1, 1993)
40

Gut Dam Claims (Can. v U.S.), 8 ILM 114, 128 (Sept. 27, 1969)

41

The river Mura, forming the International Boundary between Yugoslavia and Austria, was extensively polluted by the sediments and mud which several Austrian hydroelectric facilities had released. Yugoslavia claimed compensation for the economic loss incurred and for damage to fisheries. 16 ILSA J Int'l & Comp L 257. ILSA Journal of International & Comparative Law Fall, 2009, Core Rules of International Environmental Law, Andrea Laura Mackielo
42

A Liberian oil tanker washed ashore and extensively damaged local fisheries in Niigata, the west coast of Japanese island of Honshu. The Liberian Government paid compensation to the fishermen for damage. ibid

International Environment Moot Court Competition, 2012 4. RENTIERS EXPROPRIATED WITHOUT JUST COMPENSATION THE INVESTMENTS OF AMUKO COMPANIES IN THE SOVEREIGN BONDS OF RENTIERS THROUGH DEFAULT AND DEBT RESTRUCTURING.

4.1 Purchase of Sovereign Bonds Amount to Investment. RABBIT defines investment as all kinds of assets that have been invested in accordance with the laws of the Contracting Party receiving them
43

and includes interalia title or claim to money or to any

contract having a financial value.44 The sovereign bonds were purchased according to the law of Rentiers and amounted to title or claim to money by the bond holders as well as could be a contract having a financial value thus qualifying themselves as investments under the RABBIT. In the case of Fedax v Venezuela45, the tribunal regarded promissory notes as investments.46 Similarly in CSOB v Slovak Republic47, a consolidation agreement regarding loan was held as investment. 48 Also, various scholars49 view sovereign bonds as investments. In S.D. Myer50 and Metalclad51 it was assumed
4 43

Article 1 of RABBIT , agreed fact Para 13

4 44

Article 1(1) (b) of RABBIT. Agreed fact Para 13

45

Fedax N.V. v. Venezuela (1998), 37 I.L.M. 1378 (ICSID) Opening Pandoras Box , pg 720.

46 4 47

Ceskoslovenska Obchodni Banka, A.S. v. The Slovak Republic, Decision on Jurisdiction, 24 May, 1999, 14 ICSID ReviewFILJ 251 (1999)
4 48

Opening Pandoras Box pg 721

4 49

Horacio T. Liendo, Sovereign Debt Litigation Problems in the United States: A Proposed Solution 9 Or. Rev. Int'l L. 107( 2007) ; Lisa Bennett , Are Tradable Carbon Emissions credits investments? characterization and ramifications under international investment law 85 N.Y.U.L. Rev. 1581 (2010); Juan Pablo Bohoslavsky, Responsibility for Abusive Granting of Sovereign Loans 14 Law & Bus. Rev. Am. 495 ( 2008) ; Daniel K. Tarullo, Conference on Sovereign Debt Restructuring: The View From The Legal Academy: Neither Order Nor Chaos: The Legal Structure Of Sovereign Debt Workouts, 53 Emory L.J. 657 (2004)
50 51

S.D. Myers, Inc v. Canada (2000), 40 I.L.M. 1408, 1437 (NAFTA) [S.D.Myers]; Pope & Talbot II, n129, 373.

10

International Environment Moot Court Competition, 2012 that an investment made prior to NAFTA was an investment for the purposes of that treaty. Thus, the purchase made before as well as after the RABBIT, both are investments under the RABBIT.

4.2 The Action of Rentiers Amounted Expropriation.52 In the Amoco/Iran Case it was held that Expropriation ... can be defined as a compulsory transfer of property rights, and may extend to any right which can be the object of a commercial transaction, i.e., freely sold and bought, and thus has a monetary value.53 Further, with regard to the scope of an expropriation, the Iran-U.S. Claims Tribunal took the position that an expropriation of property encompasses all kinds of takings, whether formal and direct such as nationalization, or informal and indirect such as so-called constructive takings and creeping expropriation.54 In Starrett Housing Corporation v. Islamic Republic of Iran the tribunal held that [it] is recognized in international law that measures taken by a state can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the state does not purport to have expropriated them and the legal title
5 to the property formally remains with the original owner.55

Metalclad Corporation v. Mexico (2000), 40 I.L.M. 36, 47 (ICSID)

5 52

Blacks Law Dictionary, 8th Ed., 2004

5 53

Amoco International Finance Corp. and Islamic Republic of Iran, 6 C.T.R. 149, 168, at p. 220 (1984-11).
5 54

Allahyar Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-U.S. Claims Tribunal 70 (1994).
5 55

Starrett Housing Corporation v. Islamic Republic of Iran (1983) 4 Iran-U.S. C.T.R. 122 at 154 per Lagergren [hereinafter Starrett]. For a discussion of the expropriation jurisprudence of the Iran-US Claims Tribunal see A. Mouri, The International Law of Expropriation as Reflected in the Work of the Iran-U.S. Claims Tribunal (Dordrecht: Kluwer Academic, 1994), G.H. Aldrich, The Jurisprudence of the Iran-United States Claims Tribunal (Oxford: Clarendon Press, 1996) and C.N. Brower & J.D. Brueschke, The Iran-United States Claims Tribunal (The Hague: Martinus Nijhoff Publishers, 1998)

11

International Environment Moot Court Competition, 2012 The effect of the fresh start act was be such that the economic value of the property interest [was] radically diminished.56It is a norm of custom that measures having such an effect constitute an indirect expropriation.57 The present state of customary international law regarding expropriation of alien property has remained obscure in its basic aspects.58 Nevertheless, pursuant to principles of international law,59expropriation can be justified only if the Host State can prove it is: (i) for a public purpose; (ii) provided for by law; (iii) nondiscriminatory; and (iv) accompanied by adequate compensation. Also, according to RABBIT, any measure amounting to expropriation is unlawful unless the measures are taken for a purpose authorized by law, on a non-discriminatory basis, in accordance with its laws and in return for payment of just compensation, which shall be made without unreasonable delay.60

4.3 Rentiers Did Not Provide Adequate Compensation In principle, expropriation as an exercise of territorial competence is lawful, but the compensation rule makes the legality conditional.61 The expropriation amounting from the fresh start act did not provide adequate compensation. In the Chorzw Factory Case, the PCIJ held that the minimum pecuniary

5 56

Metalclad, n163, 50; Glamis Gold, Ltd. v. United States, Award, 8 June 2009 (NAFTA)
5 57

Starrett Housing Corporation v. Iran (1984), 4 Iran-US C.T.R. 123, 164; TAMS-AFFA, n204, 226; Compania Del Desarrollo de Santa Elena, S.A. v. Costa Rica (2000), 39 I.L.M. 1317, 1330 (ICSID) [Santa Elena]; Glamis, n203, 355.
5 58

Texaco v Libya (Texaco Overseas Petroleum Co and California Asiatic Oil Co v Libya) 53 ILR 389 (1977), 17 ILM 1 (1978); UN Conference on Trade and Development, Second Committee Meeting, UN Doc A/C.2/L.1404 (1974); Rudolf Dolzer, New Foundations Of The Law Of Expropriation Of Alien Property, 75 AJIL 553 (1981).
5 59

Resolution 1803, supra; Indirect Expropriation and the Right to Regulate in International Investment Law, OECD Doc. No. 2004/4, 10 (2004); Shaw, International Law (4th ed, 2003) 1206; D J Harris, cases and materials on international law sweet and Maxwell pg 541 fourth edition 1991
6 60

RABBIT, Article 10 (1)

6 61

Brownlie pg 532- 533 ; Also see, J.G Starke , Introduction To International Law, pg 300, Butterworths Tenth Edition 1998

12

International Environment Moot Court Competition, 2012 obligation in all cases was the payment of the full value of the property taken; and what distinguished unlawful from lawful takings was the additional obligation in the former case to compensate for consequential loss.62 The United States-Panama General Claims Commission, in the De Sabla Case,63 decided that acts of a government in depriving an alien of his property without compensation imposes international responsibility, claimants are entitled to full compensation in accordance with international standards. Furthermore, as expropriation of alien property expresses principles of international law, it requires compensation on the level of international law.64This means that the adequacy of compensation is to be judged by reference to international criteria rather than the provisions of the national law of the expropriating state.65 If foreign property is taken in breach of a State contract, the compensation to be paid should be enhanced to include damages payable on account of the breach of contract, over and above the compensation ordinarily payable for expropriation66

4.3.1 Payment Of Compensation Only In Accordance With Domestic Law Is In Violation Of Principles Of International Investment Law. Under A.2(2)(e) of the Charter for Economic Rights and Duties67, in disputes concerning expropriation of foreign property, the applicability of domestic law, as evidence of a standard practice and opinio

6 62

Chorzw Factory Case (1928) PCIJ Series A, No. 17

6 63

De Sabla Case 28 AJIL 602 (1934)

6 64

ANNUAIRE FRANCAIS DE DROIT INTERNATIONAL 57 (1974); Castaneda, La Charte des droits et devoirs economiques des etats, Note sur son processus d'elaboration, (1974).
6 65

P.M. Norton, A Law of the Future or A Law of the Past? Modern Tribunals and the International Law of Expropriation, (1991) 85 AJIL 474.
6 66

Amoco International Finance v. Iran, Partial Award No. 310-56-3, 15 Iran-US Cl Trib Rep 189, para 197 (1987); D. Bowett, State Contract with Aliens, 59 BRIT. Y.B. INTL L 49, 68 (1988).
6 67

BROWNLIE, at 509.

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International Environment Moot Court Competition, 2012 juris, has been rejected68. The UN Resolution 180369 lays down that the owner shall be paid appropriate compensation ensuring that the subject of compensation is governed by international law70. The term appropriate clearly implies some minimum conditions to be observed while granting compensation, to avoid the arbitrariness that will result from the exclusive application of municipal laws71. Also RABBIT requires that such compensation shall be the value of the investment immediately before the expropriation, taking into account customary norms of international law.72 The amount of compensation to be provided to the Amuko Companies thus must be adequate i.e. according to the international standard and not according to the Fresh Start Act.

4.3.2 The Aliens Must Be Compensated According To International Minimum Standard. Every state must treat foreigners within its territory with reference to minimum international standard73 irrespective of how national law allows that state to treat its citizens.74 As defined by OECD: The international minimum standard is a norm of customary international law which governs the treatment of aliens, by providing for a minimum set of principles which States, regardless of their domestic legislation and practices, must respect when dealing with foreign nationals and their property 75. Further,
6 68

Texaco v. Libya
6 69

U.N. GAOR, 17th Sess., A/RES/17/1803 (1962).

7 70

Orrego Vicuna, Some International Law Problems Posed by the Nationalization of the Copper Industry in Chile, 67 AM. J. INTL. L 711, 718-719 (1973); Cornelius F. Murphy, supra note 91, at 58, 59.
7 71

Orrego Vicuna, Some International Law Problems Posed by the Nationalization of the Copper Industry in Chile, 67 AM. J. INTL. L 711, 718-719 (1973);
7 72

RABBIT, Article 10 (1)

7 73

As defined by OECD," The international minimum standard is a norm of customary international law, which governs the treatment of aliens, by providing for a minimum set of principles which States, regardless of their domestic legislation and practices, must respect when dealing with foreign nationals and their property."
7 74

Dixon Martin'"Textbook on INternationla Law" ,pg 256,Sixth Edition (oxford university press:oxford 2007)
75

14

International Environment Moot Court Competition, 2012 various national laws76, regional treaties
77

and case laws78 require the aliens to be treated according to

international minimum standard. Thus, irrespective of how the national investors are compensated, Rentiers must compensate Amuko investors according to international minimum standard.

4.4 Breach Of State Contract Incurs State Responsibility. Although the investment agreement cannot be classified as a treaty, it constitutes an international legal duty,79 built upon the principle of pacta sunt servanda.80 Breach of State contract, i.e. a contract between a State and a private party, incurs State responsibility.81 The principle of pacta sunt servanda applies not only in agreements concluded between States, but also to agreements between a State and a foreigner82, therefore, requiring the State to honour its obligations in good faith 83. The arbitrary violation or termination of a State contract is in itself in violation of principles of international law84. .

International Minimum Standard of http://asadip.files.wordpress.com/2008/09/mst.pdf

7 76

Treatment,

Adriana

Snchez

Mussi,

available

at

The American Law Institutes Restatement (Third) of Foreign Relations Law of the United States, in 711 e) refers to the protection ought by a state to a foreign national or his property making it responsible for injury when the protection falls below a minimum standard of reasonableness.
7 77

NAFTA Chapter XI , Article 1105 (1)

7 78

Mondev International LTD v. United States of America, ICSID Case No. ARB (AF)/99/2. 11 October, 2002; ADF Group Inc. v. United States of America, ICSID Case No ARB (AF)/00/1, 9 January, 2003; The Loewen Group, Inc. and Raymond L. Loewen v. United States of America; Azurix Corp. v. The Argentine Republic; Saluka Investments BV (The Netherlands) v. The Czech Republic
79

Harvard Research, Draft Conventions and Comments on Responsibility of States for Damage done in their Territory to the Person or Property of Foreigners, (1929), 23 AJIL Special Supp. 167, Article 8; ILA, Report of the Forty-Eighth Conference (1958), 161; Landreau Claim (1921) RIAA i. pp 347, 365.
80

Saudi Arabia v Arabian-American Oil Co, 27 ILR 117; Hyde, Economic Development Agreements, (1962-I) 105 Hague Recueil 315.
81 82

H.W.Shawcross, The Problems of Foreign Investment in International Law, 102 RECUEIL DES COURS 339 (1962). Losinger Case, (1936) PCIJ, Series C, No.78; Shufeldt Case, (1930) UNRIAA ii. 1083; Delagoa Bay Railway Case, LA FONTAINE, PASICRISIE INTERNATIONALE, Pg 389 (1902) Para 8, G.A. Res. 1803, 17 UN GAOR Supp (No 17) at 15 on Permanent Sovereignty over Natural Resources, (1962) (hereinafter UN Resolution 1803).
83

15

International Environment Moot Court Competition, 2012 When a state uses its domestic law to annul a contract, the position is regulated by general principles governing the treatment of aliens.
85

The situation in which the state exercises its executive or

legislative power authority to destroy the contractual rights as an asset comes within the ambit of expropriation. 86

5. THE DEFAULT IN SOVEREGN BOND IS NOT EXCUSED BY ANY OF THE DEFENSES AS PLEASED BY THE RESPONDENT. 5.1 RENTIERS CANNOT INVOKE THE PLEA OF NECESSITY TO PRECLUDE ITSELF FROM ITS INTERNATIONAL OBLIGATION.

In Rainbow Warrior arbitration, the arbitral tribunal expressed doubt as to the existence of the excuse of necessity. It noted that the Commissions draft article allegedly authorizes a State to take unlawful action invoking a state of necessity and described the Commissions proposal as controversial.87 The situation arises where there is an irreconcilable conflict between essential interests on the one hand and an obligation of the State invoking necessity on the other.88 The compliance with an international

84

International Fisheries Company case, UNRIAA iv. 691, 700; Sapphire International Petroleum Ltd. v. National Iranian Oil Co., 35 ILR 136 (1967); Cornelius F. Murphy, Jr. Limitations upon the Power of a State to Determine the Amount of Compensation Payable to an Alien upon Nationalization, in R.B. LILLICH, THE VALUATION OF NATIONALIZED PROPERTY IN INTERNATIONAL LAW 58, 59 (1975)
85

Brownlie, 547

86

Brownlie pg 548 citing shufeldt claim (1930) RIAA ii. 1083; valentine petroleum arbitration (1967) , ILR 44, 79, Texaco v Libyan Government, ILR 53, 389 ; BP exploration company v Libya, ILR 53, 297; LIAMCO v Libya ILR 62, 140.
8 87

Rainbow Warrior, p. 254. In Libyan Arab Foreign Investment Company and the Republic of Burundi, p. 319, the tribunal declined to comment on the appropriateness of codifying the doctrine of necessity, noting that the measures taken by Burundi did not appear to have been the only means of safeguarding an essential interest against a grave and imminent peril.
88

Commentary on draft article, Article 25

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International Environment Moot Court Competition, 2012 obligation must be self-destructive for the wrongfulness of the conduct not in conformity with the obligation to be precluded. 89 According to the International Law Commission as well as the ICJ 90 , the ground of necessity for precluding wrongfulness can only be accepted on an exceptional basis under certain strictly defined conditions which must be cumulatively satisfied.91 Those conditions reflect customary international law.92 In the present case, the situation in Rentiers was not characterized by grave and imminent peril of any essential interest of Rentiers. Further, even if such interest existed, the default was not the only means available for Rentiers to safeguard its interest. Rentiers, without having tried any other alternatives means enacted the Fresh Start Act which ostensibly amounted expropriation. 93

5.2 It Is Inappropriate For Rentiers To Invoke The Principle Of Force Majure For The Closure Of The Nuclear Plants. It is in appropriate for Rentiers to apply the principle of force majeure in this given situation.The wrongfulness of an act of a State not in conformity with an international obligation of that State is precluded if the act is due to force majeure that is the occurrence of an irresistible force or of an

89

Russian Indemnity case Gabckovo-Nagymaros), pp. 40 41, paras. 5152. a. It must have been occasioned by an essential interest of the State which is the author of the act conflicting with one of its international obligations; b. That interest must have been threatened by a grave and imminent peril; c. The act being challenged must have been the only means of safeguarding that interest; d. That act must not have seriously impair[ed] an essential interest of the State towards which the obligation existed; e. The State which is the author of that act must not have contributed to the occurrence of the state of necessity. supra note 90 Clarifications to the record

90
91

92

93

17

International Environment Moot Court Competition, 2012 unforeseen event, beyond the control of the State, making it materially impossible in the circumstances to perform the obligation.94 5.2.1 The Change Of Circumstances Was Present While Concluding The Treaty. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty95. Rentiers knew about the Diablo Canyon Fault and the ongoing earthquakes in the particular place. 5.2.2 The Situation Of Force Majeure Is Due To The Conduct Of The State Invoking It.96 ILC Draft Articles on State responsibility has made it clear that Force Majeure cannot be invoked if the situation of force majeure is due to the conduct of the State invoking it. In Libyan Arab Foreign Investment Company and the Republic of Burundi, the arbitral tribunal rejected a plea of force majeure because the alleged impossibility [was] not the result of an irresistible force or an unforeseen external event beyond the control of Burundi. In fact, the impossibility is the result of a unilateral decision of that State ...97 In this case, Rentiers had invoked Force Majeure for closing the nuclear plants due to the reasons of earthquake. But Rentiers knew this fact previously, and the earthquakes of that range were very frequent in that area. Despite of that, Rentiers allowed Amuko to invest and later invoking force majeure to close those plants means that Force Majeure was the conduct of the Rentiers. 5.3. Precautionary Principle Does Not Justify The Act Of Nuclear Power Plant Closure.

94

ILC Draft Articles on State Responsibility, Article 23 Vienna Convention on the Law of Treaties, Article 62 ILC Draft Articles on State Responsibility, Article 23 ILR, vol. 96, p. 318, Para. 55 (1994)

95

96

97

18

International Environment Moot Court Competition, 2012 Principle 15 of Rio Declaration on Environment and Development elucidates that precautionary approach for environment protection. However, the principle has provided certain limitations for it to be used. First, States must use the principle according to their capabilities. The act of nuclear closure brings about huge loss to the investors of the company, which is to be beard by the Rentiers. Secondly, the principle further explains that the threat should bear full scientific certainty and should not be used as a reason for postponing cost-effective measures. The principle has been criticized as being too vague98 and unrealistic99. Similarly, the principle also suffers from an apparent paucity in terms of it being recognized in international courts. In many instances, when international courts and tribunals have been called to examine the principle, courts have simply refused to do so100, owing to the ambiguity of the principle.101

98

See, e.g., Daniel Bodansky, Scientific Uncertainty and the Precautionary Principle, 33 Env't 4, 8 (Sept. 1991) ("Although the precautionary principle provides a general approach to environmental issues, it is too vague to serve as a regulatory standard because it does not specify how much caution should be taken."). But see Daniel Bodansky, Remarks: New Developments in International Environmental Law, 85 Am. Soc'y Int'l L. Proc. 401, 413 (1991) ("Indeed, so frequent is its invocation that some commentators are even beginning to suggest that the precautionary principle is ripening into a norm of customary international law."). See generally James E. Hickey, Jr. & Vern R. Walker, Refining the Precautionary Principle in International Environmental Law, 14 Va. Envtl. L.J. 423 (1995) and Gregory D. Fullem, The Precautionary Principle: Environmental Protection in the Face of Scientific Uncertainty, 31 Willamette L. Rev. 495 (1995).
99

ibid See, EC Measures Concerning Meat and Meat Products (Hormones), Report of the Appellate Body WT/DS26/AB/R, WT/DS48/AB/R 16 January 1998 http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds26_e.htm; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Courts judgment of 20 December 1974 in Nuclear Tests (New Zealand v. France) ICJ Reports 1995, pg 288; Gabcikovo-Nagymaros project Case (Republic of Hungary v. The Czech and Slovak Republic), ICJ Reports 1997 pg. 7, in Owen McIntyre and Thomas Mosedale, The Precautionary Principle As A Norm of Customary International Law, 9 Journal of Environmental Law 221, 231 (1997). Dupuy (citation omitted), in Jaye Ellis, Overexploitation of Valuable Resource? New Literature on the Precautionary Principle, 17 European Journal of International Law 445, 448 (2006).

100

101

19

International Environment Moot Court Competition, 2012

CONCLUSION/ PRAYER For the foregoing reasons, Federal States of Amuko respectfully submits before the honorable court to declare, that; Republic of Rentiers violated international law by failing to properly compensate and/or reimburse Amuko for expenses related to: the deaths of two Amuko ministries of energy employees; the property losses suffered by the former residents of Robelynch; and the medical monitoring and related medical expenses of the former residents of Robelynch.

Republic of Rentiers violated international law by expropriating without just compensation. Rentiers cannot take the defense of necessity/force majeure and precautionary principle.

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International Environment Moot Court Competition, 2012

Respectfully Submitted ____________________________ Agents for the Federal States of Amuko

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