08 IN THE INTERNATIONAL COURT OF JUSTICE AT PEACE PALACE, THE HAGUE THE NETHERLANDS 1999 international environmental Moot Court Competition INDEX OF AUTHORITIES………………………………………………………………………………………………….x STATEMENT OF JURISDICTION…………………………………………………………………………………….viii QUESTION PRESENTED…………………………………………………………………………………………………..ix STATEMENT OF FACTS…………………………………………………………………………………………………….x SUMMARY OF ARGUMENTS…………………………………………………………………………………………xiii ARGUMENTS…………………………………………………………………………………………………………………….1 I: VINOY’S ACTIONS VIOLATE ITS DUTIES UNDERTHE INTERNATIONAL LAW…………………………………………………………………………….1 A. The Republic of Vinoy has injured the sovereignty of the Kingdom of Augustine………………………………………………………………………………………………………1 B. Vinoy has acted against the principles of the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) 1972 …………………….1 C. Vinoy has breached its duties against the Rio de Janeiro Declaration on the Environment and Development (Rio Declaration) 1992 ……………………………………..2 D. Vinoy has not fulfilled its duties under the Rio de Janeiro Convention on Biological Diversity (Rio Convention) 1992……………………………………………………………………..2 1. Vinoy has failed to control environmental damage to another State and has not acted according to the principles of international law………………2 2. Vinoy has not protected biodiversity as the Rio Convention requires…………3 E. Vinoys=s actions do not comply with its duties under the Organization for Economic Co-operation and Development……………………………………………………………………….4 F. Vinoy=s negligence violates the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) 1989 …….5 G. Vinoy is responsible and liable for the environmental and sanitary harm and economic loss………………………………………………………………………………………………..6 1. Vinoys responsible for the FormPlast actions…………………………………………6 1.1 Sic utere pinciple…………………………………………………………………………..6 1.2 Vinoy is responsible for FormPlast?s actions according to Stockholm Declaration and Rio Declaration………………………………………………………7 1.3 Vinoy is responsible for FormPlast=s actions in accordance with the Rio Convention……………………………………………………………………………………7 2. Vinoy is liable for the damage caused to Agustine…………………………………..8 2.1 A general principle of compensation…………………………………………8 2.2 Vinoy as a developed country has a responsibility to compensate damage caused Augustine which is a developing country………………………………………………………………………………..9 2.3 Vinoy is liable for unreasonable environmental harm conducted by FormPlast……………………………………………………………………………10 2.4 Examples of compensation in judicial decisions………………………11 H. Vinoy violates its duties under Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ………………………………………………11 II: AUGUSTINE’S PROTECTION ACT DOES NOT VIOLATE INTERNATIONAL LAW AND THE APPLICABLE TREATIES…………………………………………………….12A. Augustine does not violate its commitment to the 1994 General Agreement on Tariffs and Trade ……………………………………………………………………………………………………12 1. There is no arbitrary or unjustified discrimination where the same conditions prevail………………………………………………………………………………………………13 2. Prohibition is no disguised restriction on international trade……………………13 B. The World Trade organization permits the restriction on environmental grounds…14 C. The measures of Augustine are in accordance with the Agreement on the Application of Sanitary and Phytosanitary Measures 1994 ………………………………..15 1. Prohibition was necessary to protect human life…………………………………….15 2. Measures are not used to discriminate in an arbitrary or unjustifiable manner against other members where identical or similar conditions prevail………..15 3. Prohibition is not disguised restriction on international trade…………………..16 D. Prohibition of hazardous waste import furthers the aims of the precautionary principle……………………………………………………………………………………………………..16 CONCLUSION AND PRAYER FOR RELIEF……………………………………………………………………..17 SPECIAL AGREEMENT BETWEEN AUGUSTINE AND THE REPUBLIC ON VINOY FOR SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE OF DIFFERENCES BETWEEN THEM CONCERNING TRANBOUNDARY MOVEMENT OF HAZARDOUS WASTE enacted by Augustine and Vinoy at Tallinn, June 15,1999 BILATERAL AGREEMENT BETWEEN ON TRANSBOUNDARY HAZARDOUS SHIPMENTS, enacted by Augustine and Vinoy , 1992 INTERNATIONAL AGREEMENTS AND DECLARATIONS AGREEMENT ESTABLISHING THE WORLD TRADE ORGANISATION, adopted at Marrakesh, April 15,1994…………………………………………………………………………………………………….14 AGREEMENT OF THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES, Marrakesh, April 15,1994……………………………………………………………………………….15 CHARTER OF THE UNITED NATIONS, adopted at San Francisco, June 26, 1945.Stat 59.1031…………………………………………………………………………………………………1,3 CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS, adopted at Paris, December 17,1997…………11 CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL, adopted at Basel, March 22,1989…………..5,13 DECLARATION OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, adopted at Rio De Janeiro, June 14, 1992, U.N. Doc. A/CONF .151/5 (1992)………………………………………………………………………………………………………………………….2,7,13 DECLARATION OF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT, adopted at Stockholm, June 5, 1972, U.N. Doc. A/CONF. 48/14 (1972)………1,7 GENERAL AGREEMENT ON TARIFFS AND TRADE, adopted at Geneva, October 30 , 1947.61 Stat A 11.T.I.A.S 1700.55 U.N.T.S 194…………………………………………………………………………….12,13 STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, adopted at San Francisco, June 26, 1945. Stat 59. 1055………………………………………………………………………………………………………….8 TREATY ESTABLISHING THE EUROPEAN COMMUNITY, adopted at Rome, March 25, 1957………………………………………………………………………………………………………………………………….12. UNITED NATIONS CONVENTION ON BIOLOGICAL DIVERSITY, adopted at Rio De Janeiro, June 5, 1992, I.L.M.814………………………………………………………………………………….1,2,3,4,7,9,10,13 VIENNA CONVENTION ON LAW OF TREATIES, May 23, 1969, U.N. Doc. A/CONF.39/27………………………………………………………………………………………………………………..5,11 THE OECD COUNCIL DECISION-RECOMMENDATION ON EXPORTS OF HAZARDOUS WASTES FROM THE OECD AREA C(86)64/Final, June 5, 1986……………………………………………4 THE OECD COUNCIL DECISION-RECOMMENDATION ON THE REDUCTION OF TRANSFRONTIER MOVEMENTS OF WASTES C (90)178/Final, January 31, 1991………………..4 THE OECD COUNCIL DECISION C(98)202/Final………………………………………………………………..4 Corfu Channel Case (United Kingdom v. Albania) 1949. I.C.J. (April 22)………………………….7,10,11 Trail Smelter Arbitration (United States v. Canada), 11 March 1941. RIAA. Vol. III (1905-1982)………………………………………………………………………………………………………………………….6,10,11 Chorz?w Factory Indemnity Case (Germany v. Poland).
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PCIJ 1928 (Ser. A) No. 17 (1-27)…………11 Wallonian Wastes Case (Commission of the European Communities v Belgium).
European Court Reports 1992 (I-4431)…………………………………………………………………………………………………………13 Alder, J. & Wilkinson, D. environmental law & Ethics. 1999. Creative Print and Design, Ebbw Vale, Great Britain……………………………………………………………………………………………………………….5 Birnie, P.W. and Boyle, A.E. international law & The Environment. Oxford University Press Inc., New York. United States……………………………………………………………………………………………………..10 Glowka, L., Burhenne-Guilmin, F. and Synge H. in collaboration with. McNeely, J. A. and G?ndling,L.. A Guide to the Convention on Biological Diversity. 1994. Environmental Policy and Law Paper No. 30. IUCN – The World Conservation Union. ATAR, Geneva, Switzerland….3,4,7,10 Kingdom of Augustine and Vinoy submit the following dispute to the International Court of Justice (ICJ) by special agreement signed by these two states June 15, 1999, pursuant to Article 40, paragraph 1, of statute of the ICJ.
I Whether Vinoy is liable under international law for damage caused by illegal shipment of hazardous waste from its territory. II Whether Kingdom of Augustine’s prohibition on the importation of hazardous waste from Vinoy is contrary to international law. Two countries, the Kingdom of Augustine (Augustine) and the Republic of Vinoy (Vinoy), drifted into differences on a matter concerning transboundary movements of hazardous waste. Augustine is a developing country and not a member of OECD. Vinoy is a developed country and a member of OECD. Differences aroused when FormPlast, Inc., a petrochemical company doing business in and incorporated under the laws of Vinoy, shipped 4,500 metric tons of mercury-laden sludge into Khemboville, a port in Augustine. To get export and import permit FormPlast had illegally bribed both Vinoy’s, and Augustine’s custom officials. The mercury-laden sludge was packed into large plastic shipping bags. Shipping bags were dumped in a low-lying field in Khemboville. The residents of Khemboville emptied the shipping bags and used them for householding purposes. Three people died after being in contact with shipping bags. On 10 March 1998, the Human Watch institute announced in Khemboville town meeting that the shipping bags contained hazardous waste. The announcement caused a riot in Khemboville, during which property worth $ 1.5 million (USD) was destroyed by angry citizens of Khemboville. When Khemboville residents learned about the content of the shipping bags, over fifteen thousand attempted to leave the area. During the evacuation six residents were killed. Augustine and Vinoy entered into a Bilateral Agreement on Transboundary Hazardous Shipments (BATHS) in 1992. BATHS was an agreement that expressly allowed, subject to export and import permits, movement of wastes between Augustine and Vinoy. In accordance with BATHS, Augustine requested that Vinoy arrange re-import of the 4,500 metric tons of hazardous waste and any contaminated soil to Vinoy. Vinoy complied with this request. After the incident Augustine prosecuted its customs officials for accepting bribes. These officials were convicted, sentenced to serve 15 years in prison, and each fined $500,000 (USD).
Also Vinoy prosecuted one of its customs official for accepting a bribe. This official was convicted, sentenced to a one year prison term, which was suspended, and ordered to perform 500 hours of community service. The maximum penalty according to Vinoy?s criminal code was a ten year prison term and a $1 million (USD) fine. Augustine requested Vinoy bring a criminal action against FormPlast for its actions. Vinoy did not comply with the request, stating that its laws do not apply to such conduct. On 30 August 1998, Ambassador of Augustine delivered a diplomatic note to the Government of Vinoy requesting Vinoy to enter into consultation with Augustine to discuss compensation concerning the FormPlast incident. Augustine notes that the Stockholm Declaration on the Human Environment and the Rio Declaration on Environment and Development provide that states have the responsibility to ensure activities within their jurisdiction or control do not cause damage to the environments of other states. This customary duty to avoid transboundary harm is now enshrined in binding international agreements, such as the Convention on Biological Diversity and the Basel Convention. A concomitant international legal principle is that a breach of a duty invokes an obligation to make reparations. In addition Augustine notes that Vinoy has not fulfilled its duties required by the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions by declining to prosecute FormPlast Inc. of its actions. Augustine must now institute a medical monitoring program for those Khemboville residents who were exposed to the hazardous waste, a program that is estimated to cost over $5 million (USD).
Additionally, as a result of the presence of the hazardous waste, a civil disturbance caused more than $1.5 million (USD) in property damage. Finally, Augustine notes that adverse publicity relating to this incident has destroyed Khemboville’s tourist industry. Ambassador of Vinoy answered Augustine=s note on 10 September 1998. In the answer, Vinoy suggests that no compensation is appropriate in this case. First, the Bilateral Agreement on Transboundary Hazardous Shipments contains no liability provisions. Second, the Basel Convention, a treaty to which Vinoy is not a party, contains no liability provisions. To the question of prosecuting FormPlast, Vinoy states that it has vigorously prosecuted those persons responsible to the fullest extent permitted by its national laws. Vinoy submits that these actions have fulfilled any legal duties that may be owed to Augustine. After additional exchanges of correspondence, on 24 November 1998, Augustine terminated BATHS in accordance with its terms. On 25 November 1998, Augustine enacted the Basel Convention Implementation Act. The implementation act included a prohibition of hazardous waste importation from Vinoy. As a result of the termination of BATHS and Augustine’s domestic legislation, Vinoy may no longer export hazardous waste to Augustine. Vinoy asserts that such a prohibition on international trade violates international law. On 1 December 1998, Augustine and Vinoy entered into formal negotiations in an effort to resolve their differences. After many months of negotiations, no resolution was forthcoming and the two countries agreed to submit this dispute to the International Court of Justice. Vinoy is a party to several treaties, which require their parties to protect environment. By neglecting to control the dumping of hazardous waste to Augustine=s territory Vinoy has acted in violation of those treaties and international customary law. As a sovereign state, Vinoy has a duty to ensure that companies and citizens under its jurisdiction do not violate other countries= rights. Therefore, Vinoy is liable for the damage that FormPlast=s actions caused to Augustine. In Response to Vinoy’s violation of international law, Augustine has right to prohibit import of hazardous wastes from Vinoy. This prohibition is not in violation of GATT or any other treaty. Prohibition is a necessary measure to protect the environment and it promotes the goals of international environmental conventions and declarations. I: VINOY’S ACTIONS VIOLATE ITS DUTIES UNDER THE INTERNATIONAL LAW A. The Republic of Vinoy has injured the sovereignty of the Kingdom of Augustine Sovereignty is one of the basic elements in international law. According to Article 2 (1) of the Charter of the United Nations Athe Organization is based on the principle of the sovereign equality of all its Members@. Sovereignty is also acknowledged in the Rio Convention on Biological Diversity, which expresses that States have the sovereign right to exploit their own resources. By neglecting to control importation of hazardous wastes, the Republic of Vinoy (Vinoy) has injured the territory of the Kingdom of Augustine (Augustine).
B. Vinoy has acted against the principles of the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) 1972 As a signatory to the Stockholm Declaration Vinoy is committed Ato protect and improve the environment for the present and the future generationsA. Stockholm Declaration principle 2. In addition, the Declaration particularly states that Athe discharge of toxic substances Y in such quantities or concentrations as to exceed the capacity of the environment to render them harmless, must be halted in order to ensure that serious or irreversible damage is not inflected upon ecosystems@. Stockholm Declaration principle 6. As Vinoy has not controlled the actions of the FormPlast, it has failed to prevent environmental damage caused by the mercury-laden sludge. C. Vinoy has breached its duties against the Rio de Janeiro Declaration on Environment and Development (Rio Declaration)1992 Vinoy is a signatory to the Rio Declaration which states that AHuman beings are the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with natureA. Rio Declaration principle 1. The Declaration also expresses the principle of sustainable development that is one of the key principles of the international environmental law. @The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations@ Rio Declaration 3 principle. Vinoy has not acted upon the principle of sustainable development as it did not control the environmentally harmful actions. According to the Declaration Athe special situation and needs of developing countries Y shall be given special priority@. Rio Declaration principle 6. Furthermore itexpresses that AStates should cooperate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries@. Rio Declaration principle 12. Vinoy has neglected the special needs of a developing country. D. Vinoy has not fulfilled its duties under the Rio de Janeiro Convention on Biological Diversity (Rio Convention) 1992 1. Vinoy has failed to control environmental damage to another State and has not acted according to the principles of international law FormPlast is a company functioning under Vinoy`s laws. According to the Rio Convention States have Athe sovereign right to exploit their own recourses pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States@. Rio Convention principle 3. As a party to the Rio Convention has thus failed its duty to prevent environmental and humanitarian harm that FormPlast has caused Augustine. The sovereign right must be exercised in Aaccordance with the Charter of the United Nations 1945 and the principles of international lawA. Rio Convention principle 3. The UN Charter article 55 obligates States to cooperate in order to promote higher standards of living and to seek solutions to international economic, social and health problems. These objectives require environmental conservation. Principles of international law include principles of environmental protection and conservation at both the international and national levels. The principles express that the States have to ensure that their activities do not cause environmental damage in other States and that the States are to inform and consult each other, for example, about certain activities which may result in transfrontier hazards. Glowka & Al, A Guide to the Convention on Biological Diversity. Vinoy has not acted in accordance with the UN Charter and the principles of international law for a company under its control caused serious environmental and humanitarian damage.
2. Vinoy has not protected biodiversity as the Rio Convention requires As stated in the preamble of The Rio Convention, the conservation of biological diversity is a Acommon concern of the humankindA. According to that statement States should respect biodiversity in all the countries. Article 10 (e) expresses that States should Aencourage cooperation between its governmental authorities and its private sector in developing methods for sustainable uses of biological diversity@. The private sector including business and industry has an important role not only in taking and consuming biological resources but also in the production of waste. Glowka & Al, A Guide to the Convention on Biological Diversity. The Convention also states that AThe Contracting Parties shall facilitate the exchange of the information, from all publicly available sourcesA. Rio Convention article 17 (1).
The special needs of the developing countries have to be taken into account. The exchange Ashall include results of the technical, scientific and socio-economic research as well as information on training and surveying programs and specialized knowledgeA. Rio Convention article 17 (1).
The State of Vinoy, its authorities and FormPlast as a private company have not been cooperating for the benefit of environment and the inhabitants of a developing country.
E. Vinoy ‘s actions do not comply with its duties under the Organization for Economic Co-operation and Development
As a party to the Organization for Economic Co-operation and Development, Vinoy does not comply with its duties. The Council Decision-Recommendation on the Reduction of Transfrontier Movements of Wastes includes important principles for the environmentally sound management of wastes. The Decision-Recommendation requires that wastes not destined for recovery operations be disposed of within the Member country in which they are generated. According to this self-sufficiency principle, only if it is not possible for a member country to manage wastes in its own territory, it can enter into bilateral or regional agreements to transport wastes to another country. Furthermore, in the Council Decision-Recommendation on Exports of Hazardous Wastes from the OECD area, the Environment Committee decided that the member countries should prohibit movements of hazardous wastes to a non-member country unless the wastes are directed to an adequate disposal facility in that country. However, developing countries usually possess inadequate management facilities and – what is more important – limited understanding of the risks involved. In this case it does not seem likely that Augustine – as being a developing country – has a better waste management infrastructure than Vinoy. In addition, the Council Decision-Recommendation requires its members to use no less strict standards on controlling exports to non-members than to members. Furthermore, the mercury-laden sludge belongs to the so-called amber list (see OECD Council Decision C(98)202/Final), which means that its transports should be strictly controlled as it presents sufficient risk to justify waste controls. F. Vinoy=s negligence violates the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) 1989 Vinoy argues that since it has not ratified but only signed the Basel Convention it has no obligation pursuant to the convention. However, article 18 of the Vienna Convention sets an obligation to states not to defeat the object and purpose of a treaty prior to its entry into force. A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when it has signed the treaty until it shall have made its intention clear not to become a party to the treaty. Furthermore, a treaty entered into by many states may be used as evidence of an underlying custom thus binding even those states that were not parties to the treaty. Alder & Wilkinson. Law and Ethics. The main goals of the Basel Convention are to reduce the generation of hazardous wastes, to encourage their disposal as close as possible to the source of generation (proximity principle) and to ensure that all hazardous wastes are managed in an environmentally sound manner. The primary concern is to safeguard the environment in countries with less developed technical and regulatory infrastructures against the uncontrolled influx of hazardous wastes originating in industrialized nations. In 1994, the Parties to the Convention adopted a decision to enhance the protection afforded to less industrialized countries by prohibiting transboundary movements of hazardous wastes from OECD to non-OECD countries. The Convention requires prior informed consent from the country that waste are transported to. This requirement is the main element in the procedure of waste transportation according the Convention. These principles of waste management disposal are recognized as international customary law. Vinoy has neglected to control importation of hazardous waste to the developing country, i.e., Augustine, and has thus violated the spirit of the Basel Convention and therefore international law. G.Vinoy is responsible and liable for the environmental and sanitary harm 1. Vinoy is responsible for the FormPlast actions There are several principles supported by judicial decisions according to which states may be held accountable for transboundary pollution or other kind of environmental harm originating from their territory. According to the maxim ‘sic utere tuo, ut alienum non laedas’ (principle of good neighborliness), States are required to take adequate steps to control and regulate sources of serious transboundary harm within their territory. So, a state has a duty to prevent, reduce and control environmental harm. Support for such an obligation can be found in arbitral and judicial decisions. For example, in the Trial Smelter arbitration, a tribunal awarded damages to the United States and concluded that ‘no state has the right to use or permit the use of its territory in such a manner as to cause injury in or to the territory of another and that measures of control were necessary. Furthermore, the judgment of the International Court of Justice in the Corfu Channel case supports a similar principle. In this case, the Court indicated that it was ‘every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states’. The state can be seen as a guarantor of private conduct, although its responsibility is direct. 1.2.Vinoy is responsible for FormPlast?s actions according to the Stockholm Declaration and Rio Declaration The principle 21 of the Stockholm Declaration implies that states have Ato ensure that activities within their jurisdiction or control do not cause damage to the environment of other States beyond the limits of national jurisdictionA. This principle widens the traditional concept of *sic utere= to all the actions conducted under the state=s laws B not only in its territory . The same principle is expressed again in Rio Declarations principle 2. In international law this Ano harm principleA is understood so that it requires States to do their best to prevent Asignificant transboundary harmA. Glowka & Al, A Guide to the Convention on Biological Diversity. 1.3.Vinoy is responsible for FormPlast`s actions in accordance with the Rio Convention The principle is also to be found in the third article of the binding Rio Convention. The states have Asovereign right to exploit their own resources pursuant to their own environmental policiesA, but that right is linked to responsibility to ensure environmental protection. States have to Aensure that activities within their jurisdiction or control do not cause damage to other StatesA. Rio Convention principle 3. The actions of FormPlast caused serious damage to Augustine=s environment, inhabitants and economy. The most severe consequence was the loss of several human lives. Vinoy is responsible for the actions of FormPlast, because that was functioning under Vinoy?s jurisdiction and control. 2.Vinoy is liable for the damage caused to Augustine 2.1 A general principle of compensation The signatories to the Rio Declaration have stated in principle 7 that States should cooperate Ato develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdictionA. International law does not only mean the conventions, but also for example customary law and general principles. The Statute of the International Court of Justice goes on to provide that the international law to be applied by the Court is to be derived from the following sources: “(a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law”. The Statute of the ICJ article 38 (1).
2.2. Vinoy as a developed country has a responsibility to compensate damage caused Augustine which is a developing country According to principle 5 of the Rio Declaration Aall states and all people shall cooperate in essential task of eradicating poverty as an indispensable requirement for sustainable developmentA. Also the preamble of the Rio Convention states that economic and social development and poverty eradication are the first and overriding priorities of developing countries. It also stresses the importance of the cooperation among States, intergovernmental organizations and the non-governmental sector for the conservation of biological diversity and the sustainable use of its components for the benefit of the present and future generations. FormPlast, functioning under Vinoy?s laws destroyed the economy of Khemboville, which used to be a famous tourist resort in Augustine. The mercury sludge also destroyed biodiversity in the dumping area and caused several deaths. The after-effects caused social disorder and economic loss to Augustine. The fact that Vinoy has accepted back the polluted soil does not eliminate the effects on surrounding environment, human lives and the State?s economy. Augustine is facing a considerable human and environmental catastrophe, and it is not able to repair the damages. Rebuilding the residential areas and tourist industry demand remarkable financial investments and technical knowledge. Instead of directing resources to improving standard of living and developing methods for sustainable use and better environmental management, they have to be directed to repairing work. All developed countries, but especially parties to the Rio Convention, are obligated to support the aims of the developing countries to reach higher standard of living and, for example, assist in developing more sustainable ways of living, production, tourism and treatment of wastes. Glowka & Al, A Guide to the Convention on Biological Diversity. Vinoy has an obligation to promote the recovery in Khemboville. 2.3. Vinoy is liable for unreasonable environmental harm conducted by FormPlast According to the polluter pays principle – which is a generally accepted principle of customary international law – a state is liable if it fails to prevent its territory being used in such a way as to prevent unreasonable transboundary damage. Birnie & Boyle. International Law & The Environment. The origins of this principle can be traced to the Trail Smelter arbitration and the Corfu Channel case. The polluter pays principle is also included in a number of treaties (e.g. the International Convention on Civil Liability for Oil Pollution Damage in 1969) and it has become a central feature of European environmental law and policy. Also the principle 16 of the Rio Declaration states that the polluter should bear the costs of pollution. States can be held accountable for unreasonable environmental harm conducted by private parties as in the Trail Smelter case. Although private parties have conducted the activity causing environmental harm, the States responsibility for environmental harm is derived from the state’s duty of control. As stated earlier, the State?s have an obligation to Aensure that activities within their jurisdiction or control do not cause damage in other StatesA. Rio Declaration, principle 3. The environmental harm caused to Khemboville must be considered unreasonable. While the FormPlast was functioning under Vinoy?s control, Vinoy is liable for the damage that FormPlast caused to Augustine. 2.4. Examples of compensation in judicial decisions In the Chorzow Case, Permanent Court of International Justice established that violating any international obligation brings about a responsibility to compensate regardless of the content of the convention. Vinoy has acted against several international agreements and is thus responsible to compensate the harm caused to Augustine. In addition, in the cases of Corfu Channel and Trail Smelter compensation was paid for damage caused to another State. H. Vinoy violates its duties under Convention on Combating Bribery of Foreign Public Officials in International Business Transactions As a party to the Convention, Vinoy has a responsibility according to article 1 to take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage to a foreign public official in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business. In addition, according to article 2 of the Convention, Vinoy has a duty to take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official. Article 3 of the Convention demands that the punishments for the bribery of foreign officials shall be effective proportionate and dissuasive criminal penalties. Vinoy has declined to prosecute FormPlast. It argues that it has taken necessary measures and prosecuted those persons responsible to the fullest extent permitted by its national law. According to Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Vinoy has not fulfilled its duties to establish the liability of legal person for the bribery of foreign public officials. II: AUGUSTINE’S PROTECTION ACT DOES NOT VIOLATE INTERNATIONAL LAW AND THE APPLICABLE TREATIES A. Augustine does not violate its commitment to the 1994 General Agreement on Tariffs and Trade The prohibition of hazardous waste importation from Vinoy was designed to protect human life. The Most-Favoured-Nation provision of Article I prohibits trade measures that treat products from one country differently than like products from another country. The interpretation of “like products” defines the scope of the GATT’s MFN principle. However, waste is a matter of a special kind because of the differences between waste produced in different places and to the connection of the waste with its place of production. Although Augustine accepts hazardous waste exports from such non-Basel countries as Deland and Pinellas, it is solely for the purpose of recycling or recovery operations, and so it does not treat like products differently. Furthermore, in the case of Wallonian Waste, the European Court of Justice gave environmental protection a special status in the field of free movement of goods. Moreover, in the Wallonian Waste Case, the Belgian government argued that waste which is not recyclable and not reusable could not be regarded as @goods@ within the meaning of article 30 of the Treaty Establishing the European Community (which deals with the free movement of goods), because it has no intrinsic commercial value and thus operations for the disposal of such waste should be considered as services. Article I and XI (general elimination of quantitative restrictions) do not apply to services. However, even if wastes were regarded as *like products=, the measures of Augustine woud fall into the GATT environmental exemption of Article XX(b), which allows environmental factors to moderate the concerns of free trade provided that the measure is justified for the protection of health and life of humans, animals or plants. So, the measures are not applied in a non-arbitrary or discriminatory manner. Nor is it a disguised restriction on trade between member states. 1. There is no arbitrary or unjustifiable discrimination where the same conditions prevail Vinoy has breached its duties under international environmental law and treaties. In addition, it is a developed country and thus expected to have a better infrastructure for waste management than Augustine, which is a developing country. The same conditions do not prevail. Furthermore, the GATT does accept multilateral environmental agreements in its area including the Basel Convention. Article 4 (1)(a) of the Convention generally prohibits parties from importing hazardous wastes from non-parties and as Vinoy has not ratified the Convention, Augustine is entitled to prohibit hazardous waste originating from Vinoy. 2. Prohibition is no disguised restriction on international trade The import prohibition is justified on sanitary grounds and it should not be considered disguised restriction on trade. Augustine adopts the precautionary principle in this context, which permits states to determine their own level of acceptable risk in relation to their environments. Precautionary principle is embodied in the Rio Declaration principle 15 and is realized, e.g., in many European directives. Precautionary principle states Awhere there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat@. Rio Convention preamble paragraph 9. Moreover, the purpose of the measures was to protect the environment and human life, which in this case takes precedence. B. The World Trade Organization (WTO) permits the restrictions on environmental grounds In 1994, ministers of the WTO members adopted a Decision on Trade and the Environment, which called for the establishment of a WTO Committee on Trade and Environment. The Decision defines the tasks of the Committee as: “to identify the relationship between trade measures and environmental measures in order to promote sustainable development”. In addition, the Decision gives a special consideration to the needs of developing countries. The agreement establishing the World Trade Organization (WTO), entered into force on 1 January 1995, permits its members to adopt trade measures to promote conservation goals. The preamble of the agreement states that “… while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development”. The preamble acknowledges the importance of environmental concerns. The prohibition of hazardous waste exports from Vinoy that had violated its obligations by neglecting to control hazardous waste exportation conforms to the objective to promote sustainable development. A petrochemical company that was under its jurisdiction had imported 4,500 metric tons of mercury-laden sludge into Augustine. The sludge was shipped to a resort beach and had caused considerable harm to the region. For example, WHO inspected the field where the shipping bags were deposited and found mercury concentrations of 1.8 micrograms per gram, which is as much as 3.6 times more than normal mercury levels in soil. C. The measures of Augustine are in accordance with the Agreement on the Application of Sanitary and Phytosanitary Measures (1994) The Agreement on the Application of Sanitary and Phytosanitary Measures gives detailed requirements for the use of sanitary and phytosanitary measures whilst preserving the rights of governments to implement food safety, animal and plant regulations in circumstances where they are necessary to protect human, animal or plant life. So, it elaborates rules for the application of the provisions of GATT 1994, in particular the provisions of Article XX (b).
1. Prohibition was necessary to protect human life According to Article 2 of the Agreement members have the right to take sanitary and phytosanitary measures that are necessary for the protection of human life or health. In Khemboville, several individuals had already died as a result of the illegal export and many were exposed to the hazardous waste. 2. Measures are not used to discriminate in an arbitrary or unjustifiable manner against other members where identical or similar conditions prevail The World Health Organization (WHO) inspected the field where the shipping bags were deposited. It determined that the sludge contained mercury concentrations of 1.8 micrograms per gram, i.e. even 3,6 times more than normal mercury levels in soil. Two male dockworkers that had unloaded the shipping bags died two days after the unloading and a healthy male resident died after using a shipping bag for bedding. The measures of Augustine are based on this available pertinent information. The prohibition only applies to Vinoy, which has violated its duties under international law. It should also be remembered that Augustine is a developing country and the conditions – in particular, infrastructure for waste management – are very different compared to those of Vinoy. So, the measures were not used to arbitrarily or unjustifiably discriminate Vinoy. 3. Prohibition is not a disguised restriction on international trade The prohibition was designed to protect human, animal and plant life and health. The information from the WHO justifies its actions. In other words, Augustine=s actions correspond to appropriate level of protection. Accumulation of waste can become a health hazard, and so the prohibition of hazardous waste imports was justified. D. Prohibition of hazardous waste import furthers the aims of the precautionary principle Augustine prohibited the importation of hazardous wastes originating in Vinoy, because there is no guarantee that the import will not endanger its citizens= health and environment. Augustine protects the health of its residents and its environment. In consideration of the aforementioned, the Kingdom of Augustine respectfully requests this Honorable Court to: 1a Declare that Republic of Vinoy has breached it duties under international environmental law to conserve and protect environment. 2a Declare that Republic of Vinoy is liable for the damage that has been caused for Kingdom of Augustine due to its failure to ensure that a company under its jurisdiction is not violating Augustine=s rights. 3a Declare that Kingdom of Augustine=s prohibition to import hazardous waste from Republic of Vinoy is in consist with international law.
