TEAM CODE: 14 / S 27 - A

IN THE

INTERNATIONAL COURT OF JUSTICE

AT

THE PEACE PALACE, THE HAGUE

THE NETHERLANDS

Questions Relating to Cultural Property and the Protection of Elephants

General List No: 162

Federal States of Aliya / Republic of Rincossi

(Applicant) (Respondent)

Twentieth Annual Stetson International Environmental Moot Court Competition, 2015 - 2016

Memorial for the Applicant

- Federal States of Aliya-

ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

MEMORIAL FOR THE APPLICANT

FEDERAL STATES OF ALIYA

TABLE OF CONTENTS i

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................... I 

INDEX OF ABBREVIATIONS .........................................................................................................III 

INDEX OF AUTHORITIES ............................................................................................................. V 

STATEMENT OF JURISDICTION ................................................................................................. XIII 

SUMMARY OF FACTS ............................................................................................................... XIV 

QUESTIONS PRESENTED ........................................................................................................... XV 

SUMMARY OF ARGUMENTS ..................................................................................................... XVI 

ARGUMENTS ADVANCED ............................................................................................................ 1 

I.  RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY FAILING TO PROSECUTE

AMBASSADOR CUSI AND THE 20 BU MEMBERS...................................................................... 1 

1.1  RINCOSSI HAS BREACHED ITS TREATY OBLIGATIONS ................................................ 1 

1.1.1  Breach of Rincossi’s Obligation to Penalise Under CITES............................... 1 

1.1.2  Rincossi has an Obligation to Prosecute Ambassador Cusi Under UNCAC..... 3 

1.1.3  Rincossi has an Obligation to Prosecute the 20 BU Members under UNTOC . 5 

1.2  RINCOSSI HAS BREACHED ITS CUSTOMARY LAW OBLIGATIONS ................................... 6 

1.2.1  Rincossi has breached the principle of aut dedere aut judicare ......................... 6 

1.2.2  Rincossi has Violated the Principle of Sustainable Development ..................... 9 

1.2.3  Rincossi has State Responsibility to Prosecute for a Violation of International

Law…………………………………………………………………………………...11 

II.  RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY REFUSING TO RETURN ALL THE

CONFISCATED IVORY TO ALIYA………………………………………………………….13 

2.1  RINCOSSI, UNDER CERTAIN TREATY OBLIGATIONS, MUST RETURN THE CONFISCATED

IVORY ............................................................................................................................... 13 

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TABLE OF CONTENTS ii

2.1.1  Rincossi’s obligations to return all the confiscated ivory under the Cultural
Property Convention .................................................................................................... 13 

2.1.2  Rincossi’s obligations to return all the ivory under the CITES ....................... 15 

2.1.3  Rincossi’s obligation to return the ivory confiscated from Ambassador Cusi
under the UNCAC........................................................................................................ 16 

2.1.4  Rincossi’s obligation to return the ivory confiscated from BU’s transport
containers under the UNTOC ...................................................................................... 17 

2.2  RINCOSSI HAS A CUSTOMARY OBLIGATION TO PROVIDE RESTITUTION TO ALIYA AS

PER THE ARSIWA ............................................................................................................ 19 

2.2.1  The act of smuggling of 25 kgs of ivory by Ambassador Cusi in July twenty14
can be attributed to Rincossi ........................................................................................ 20 

2.2.2  The acts of smuggling of 1500 kgs of ivory by the twenty BU members
committed over a span of three years can also be attributed to Rincossi .................... 20 

2.2.3  The acts of smuggling amount to breach of CIL ............................................. 21 

2.2.4  Aliya, as the injured State, can claim restitution. ............................................ 23 

CONCLUSION ........................................................................................................................ 24 

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INDEX OF ABBREVIATIONS iii

INDEX OF ABBREVIATIONS

¶ : Paragraph

Arb. : Arbitration

Art. : Article

ARSIWA : Article on Responsibility of States for

Internationally Wrongful Acts

BU : Barnum Uritovsky

CBD : Convention on Biological Diversity

CITES : Convention on International Trade in

Endangered Species of Wild Fauna and

Flora

Conf. : Conference

CoP : Conference of Parties

Dep’t : Department

Doc. : Document

ECOSOC : Economic, Cultural and Social Council

ed. : Edition

e.g. : Example

GAOR. : General Assembly Official Records.

G.A. : General Assembly

H. R. : Human Rights

I.C.J. : International Court of Justice

ICOM : International Council of Museums

ICRC : International Committee of the Red

Cross

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INDEX OF ABBREVIATIONS iv

I.L.C. : International Law Commission

Int’l L. : International Law

P.C.I.J. : Permanent Court of International Justice

R. : Annex B of the Record

Rep : Report

Res. : Resolution

Rev. : Review

Ser. : Series

Sess. : Session

Supp. : Supplementary

U. N. C. A. C : United Nations Convention Against

Corruption

U. N. E. A : United Nations Environment Assembly

U. N. E. S. C. O : United Nations Educational, Scientific

And Cultural Organisation

U. N. O. D. C : United Nations Office on Drugs and

Crims

U.N.T.S. : United Nations Treaty Series

U. N. T. O. C : United Nations Convention on

Transnational Organised Crime

VCDR : Vienna Convention on Diplomatic

Relations

VCLT : Vienna Convention on the Law of

Treaties

Vol. : Volume

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INDEX OF AUTHORITIES v

INDEX OF AUTHORITIES

Treaties and Convention

African Convention on the Conservation of Nature and Natural Resources, Sept. 15, 1968

1001 U.N.T.S. 3. .................................................................................................................. 22

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S 79.................................... 22

Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3,

1973, 993 U.N.T.S. 243 [CITES]. ................................................................................ passim

Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and

Transfer of Ownership of Cultural Property, November 14, 1970, 823 U.N.T.S.

231…………………………………………………………………………………….passim

United Nations Convention Against Corruption, 14 December 2005, 2349 UNTS 41............. 3

United Nations Convention against Transnational Organized Crime, 8 January 2001, G.A.

Res. A/RES/55/25 ......................................................................................................... passim

Vienna Convention on Diplomatic Relations, art 31, 18 May 1961, 500 U. N. T. S 95….5

Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 ....................... 2

Decisions of the ICJ

Aegean Sea Continental Shelf (Greece v. Turkey); 1978 I.C. J. 22, (December 19). ............. 16

Case Concerning Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), 2007 I. C. J 37 (July 11). ......... 18

Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicarargua.

v. U.S.), 1986 I.C.J. 14 (June 27)........................................................................................... 8

Case Concerning Questions of Interpretation and Application of the 1971 Montreal

Convention Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.

United Kingdom), 161 I.C.J. Reports 1999 ........................................................................... 6

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INDEX OF AUTHORITIES vi

Gabcikovo-Nagymaros Project (Hungary v. Slovakia), 1997 I.C.J. 7 (September 25) ............. 9

Legality of the Threat or the Use of Nuclear Weapons, 1996 I.C.J. 226, 251 (July 8) ............. 8

North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands) 1985 I.

C. J. 1985, ¶ 77 (February 20). ............................................................................................ 22

Pulp Mills in the River Uruguay Case (Arg. V Uru.) 2010 I.C.J. (April 20) ............................ 9

Territorial Dispute (Libya v. Chad), 1994 I.C.J. 7 (Feb. 3). ...................................................... 2

Decisions of the PCIJ

Chorz6w Factory (Germany v. Poland) 1928, P. C. I. J. (ser. A) No. 13, at 70 (September

13)………………………………………………………………………………………….23

Other Decisions

Prosecutor v. Tadić, Case No.IT-94-1-A, ¶131 (1999)............................................................ 21

Velaquez Rodriguez v. Honduras, Merits, Judgement, Inter-Am Ct. H. R. (ser C) No 4 (Jul

29, 1988). ............................................................................................................................. 21

International Arbitral Awards

Franciso Mallén (United Mexican States) v. U. S. A. 4 US-Mexico Cl Trib. Rep 178

(1927)……………………………………………………………………………………...21

Iron Rhine Arbitration, Belgium v Netherlands, Award, ICGJ 373 (Perm. Court Arb. 2005). .9

Petrolane, Inc., Eastman Whipstock Manufacturing, Inc. and others v The Government of the

Islamic Republic of Iran, Iranian Pan American Oil Company and others, 131 Iran-U.S Cl.

Trib. Rep. 518 (1991)........................................................................................................... 20

Societe Generale de Surveillance S.A v. Republic of the Phil., ICSlD Case No. ARB/oz/6.

Objections to Jurisdiction, ¶ 154 (Jan. 29, 2004), 8 lCSlD Rep. 518 (2005) ...................... 16

Thomas H. Youmans (U.S.A.) V. United Mexican States, 4 R.I.A.A. 61 (Perm. Court Arb.

1926) .................................................................................................................................... 11

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INDEX OF AUTHORITIES vii

UN Resolutions and Documents

Articles on the Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83,

art 2, U.N. GAOR, 56th Sess., Supp. No. 49, U.N. Doc. A/RES/56/83. ...................... passim

Declaration of the United Nations Conference on the Human Environment,

U.N.Doc.A/CONF.48/ 14/Rev.1 (1972) ......................................................................... 10,23

Doha Declaration on Integrating Crime Prevention and Criminal Justice, “Future we Want,”

A/CONF.222/L.6 ................................................................................................................... 5

ECOSOC Res. 2013/40, U.N. DOC. E/RES/2013/40 (Oct 17, 2013)……………………..8, 9

G.A Res 55/25, U.N. GAOR, 55th Sess., Supp No. 25, U.N Doc A/RES/55/25 (Vol III) (Jan.

8, 2002). ............................................................................................................................... 19

G.A Res 65/161 U.N. GAOR, 65th Sess., Supp No. 161, U.N. Doc. A/RES/65/161 (Vol. III)

(Mar. 11, 2010) .................................................................................................................... 22

Rep. of the Int'l law Comm'n, 56th sess., Preliminary Remarks, 3 May-4 June and 5 July-6

August 2004, U.N. Doc. A/59/10 .......................................................................................... 6

Rep. of the Int'l law Comm'n, 66th sess, May 5-June 6, July 7- Aug 8, 2014, U.N Doc.

A/69/10 ............................................................................................................................... 4,7

Strengthening the United Nations crime prevention and criminal justice programme, in

particular its technical cooperation capacity, G.A. Res. 68/193, U.N. Doc.

A/RES/68/193/Annex (2013)8Rio Declaration on Environment and Development, June 14,

1992, 31 I.L.M. 874 ............................................................................................................. 22

Sir Humphrey Waldock, Special Rapporteur, 3rd Report on Law of Treaties, 1964 2 I.L.C.

Yearbook 7 (1964), U.N. Doc. A/CN.4/SER.A/1964/ADD.1 ............................................... 2

The Future We Want, G.A Res 66/288 U.N. GAOR, 66th Sess., Supp No. 288, U.N. Doc.

A/RES/66/288 (Vol III) (Sept. 11, 2011)............................................................................. 22

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INDEX OF AUTHORITIES viii

U.N. Conference of Parties to the U.N. Convention against Transnational Organised Crime,

Vienna, Austria Oct. 15-19, 2012, Technical assistance provided to States in the

application of the United Nations Convention against Transnational Organized Crime to

new forms and dimensions of transnational organized crime, U.N. Doc.

CTOC/COP/2012/7 (2012). ................................................................................................. 18

U.N.E.S.C.O., Operational Guidelines for the Implementation of the Convention on the

Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership

of Cultural Property (1970) .................................................................................................. 14

U.N.O.D.C., Global Programme for Combating Wildlife and Forest Crime Annual Report 3

(2014) ..................................................................................................................................... 8

U.N.O.D.C., LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS

CONVENTION AGAINST CORRUPTION (2012) .................................................................. 3, 4, 8

U. N. O. D. C., LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS

CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME (2009). ................................... 4

U.N.O.D.C., TECHNICAL GUIDE TO THE UNITED NATIONS CONVENTION AGAINST

TRANSNATIONAL ORGANIZED CRIME (2009) ................................................................ 3, 4, 8

United Nations Conference of the Parties to the United Nations Convention Against

Transnational Organized Crime, Vienna, Austria, Oct. 18-22, 2010, Report of the

Conference of the Parties to the United Nations Convention against Transnational

Organized Crime, U.N. Doc. CTOC/COP/2010/17 (2010) ................................................. 18

United Nations Environment Assembly, Illegal Trade In Wildlife, Res. AMCEN/15/Ref/3 .... 8

UNITED NATIONS OFFICE ON DRUGS AND CRIME, TRAVAUX PRÉPARATOIRES OF THE

NEGOTIATIONS FOR THE ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST

TRANSNATIONAL ORGANIZED CRIME AND THE PROTOCOLS THERETO (2006) ...................... 8

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INDEX OF AUTHORITIES ix

Other International Resolutions and Documents

Commission on Crime Prevention and Criminal Justice (CCPCJ) Resolution 23/1 (2014)...... 9

CITES Secretariat, Notification to the Parties, No. 951 (29 January 1997). ............................. 2

CITES, China Increases Prosecutions In Response To Illegal Trade In Elephant Ivory, Nov.

29 2013................................................................................................................................... 7

CITES, Disposal of confiscated and accumulated specimens, Res. Conf. 9.10 (Rev.

COP15)…………………………………………………………………………………….16

CITES, Sustainable Use of Biodiversity: Addis Ababa Principles and Guidelines, Res. Conf.

13.2 (Rev. COP14)............................................................................................................... 10

CITES, Trade in Elephant Specimens, Res. Conf. 10.10 (Rev. CoP12) ................................... 8

CITES, Wildlife Trade Policy Reviews, Res. Conf. 15.2; CITES, African Elephant Action

Plan and African Elephant Fund, Res. Conf. 16.9. ............................................................... 2

Council Decision (EU) 2015/451 of 6 March 2015 Concerning the Accession of the European

Union to the Convention on International Trade in Endangered Species of Wild Fauna and

Flora (CITES). ....................................................................................................................... 8

International Council for Museums, ICOM Code of Ethics for Museums (Nov 4, 1986). ..... 15

IUCN Council, Guidelines for Legislation to Implement CITES, available at

https://portals.iucn.org/library/efiles/documents/EPLP-026.pdf (last accessed July 24,

2015). ..................................................................................................................................... 3

London Conference on The Illegal Wildlife Trade, Declaration, Feb. 2014 ............................. 8

Memorandum of Understanding concerning Conservation Measures for the West African

Populations of the African Elephant, Nov. 22, 2005. .......................................................... 23

O.E.C.D., Background Paper, Conference on Economic Aspects of Environmental

Compliance Assurance 7 (2004) .......................................................................................... 10

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INDEX OF AUTHORITIES x

Treatises and Commentaries

A GILLESPIE, CONSERVATION, BIODIVERSITY AND INTERNATIONAL LAW (2011). ................... 16

BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2008) ............................................. 2

CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY:

INTRODUCTION, TEXT AND COMMENTARIES(2002) ............................................................. 20

DAVID MCCLEAN, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY ON THE UN

CONVENTION AND ITS PROTOCOLS (2007) ............................................................................. 4

DAVID S. FAVRE, INTERNATIONAL TRADE IN ENDANGERED SPECIES: A GUIDE TO THE CITES

(1989) ................................................................................................................................... 10

JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART (1st ed. 2013)..................... 11

LORD MCNAIR, THE LAW OF TREATIES, (1961). ..................................................................... 15

M CHERIF BASSIOUNI & EDWARD M WISE, AUT DEDERE AUT JUDICARE: THE DUTY TO

PROSECUTE OR EXTRADITE IN INTERNATIONAL LAW (1995).................................................. 6

OPPENHEIM, INTERNATIONAL LAW (9th ed., 1992). ................................................................... 4

P ASKERUD AND E CLEMENT, PREVENTING THE ILLICIT TRAFFICKING IN CULTURAL PROPERTY

(1997). .................................................................................................................................. 15

ROSALIND REEVE, POLICING INTERNATIONAL TRADE IN ENDANGERED SPECIES – THE CITES

TREATY AND COMPLIANCE (2002) ........................................................................................ 7

SANDS & PEEL, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2012) ..................... 7

SATOW, DIPLOMATIC PRACTICE (6th ed. 2011). .......................................................................... 5

SHAW, PUBLIC INTERNATIONAL LAW (2008) ............................................................................. 7

VAUGHAN LOWE, SUSTAINABLE DEVELOPMENT AND UNSUSTAINABLE ARGUMENTS, reprinted

in International Law and Sustainable Development (Alan Boyle and David Freestone eds.

1999). ................................................................................................................................... 10

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INDEX OF AUTHORITIES xi

VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER’S GUIDE TO THE INTERNATIONAL

CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (1995). ............................................ 11

WILLEM WIJNSTEKERS, EVOLUTION OF THE CITES (9th ed. 2011). ............................................ 16

Journal Articles

Allott, State Responsibility and the Unmaking of International Law, 29 HARV.INT'L.L.J. 1

(1988). .................................................................................................................................. 20

Andre De Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadić

Case and Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of

Yugoslavia, 72 BRIT. Y. B. INT’L L. 255 (2002) ................................................................... 21

Dinah Shelton, Righting Wrongs: Reparations In The Articles On State Responsibility, 96

AM. J. INT'L L. 833 (2002).................................................................................................... 23

James Nafziger, The New International Legal Framework For The Return, Restitution Or

Forfeiture Of Cultural Property, 15 N.Y.U. J. INT'L L. & POL. 789 (1982-1983). ................. 14

John Merryman, Two Ways of Thinking About Cultural Property, 80 AM J. INT’L LAW 834

(1986). .................................................................................................................................. 14

L. Cameron, Private military companies: their status under international humanitarian law

and its impact on their regulation., 88 INT’L REV OF RED CROSS. 863, 869 (2006)............ 21

Miscellaneous 

Environment and Natural Resources Division, U.S. Dep’t of Justice, The Fight Against

Wildlife Trafficking………………………………………………………………………….7

CITES, China Increases Prosecutions In Response To Illegal Trade In Elephant Ivory, Nov.

29 2013................................................................................................................................... 7

I.C.R.C., Customary IHL Database ........................................................................................... 7

Lusaka Agreement Task Force, Operation Cobra II Evaluation Report 8 (2014) ..................... 7

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INDEX OF AUTHORITIES xii

UNODC, Successful operation highlights growing international cooperation to combat

wildlife crime, June 18, 2015 ................................................................................................. 7

  

-MEMORIAL FOR THE APPLICANT-

STATEMENT OF JURISDICTION xiii

STATEMENT OF JURISDICTION

The Federal States of Aliya (“Applicant”) and the Republic of Rincossi (“Respondent”)
submit their dispute to this honourable court, pursuant to Art. 40 of the Statute of the ICJ.

On June 19, 2015, the Applicant and Respondent have submitted a copy of the special
agreement to the registrar of the court. See Special Agreement Between The Federal States
Of Aliya And The Republic Of Rincossi For Submission To The ICJ Of Differences Between
Them Concerning Questions Relating Cultural Property And The Protection Of Elephants,
signed at Libreille, Gabon on June 19, 2015.

Subsequently, the Registrar addressed a notification to the parties on June 25, 2015, adding
the matter to the general list of the court.

-MEMORIAL FOR THE APPLICANT-

 SUMMARY OF FACTS xiv

SUMMARY OF FACTS

I. Aliya and Rincossi are coastal nations on two different continents. Aliya is a

developing country and the Thornon elephant plays a significant role in its culture. Various

legislations have been enacted in Aliya to prevent poaching and illegal trade, in addition to

the setting up of a National Park. Rincossi is a rapidly developing state and its law permits

domestic trade of legal ivory, but has a legislation to protect wildlife and to check trade in

illegally obtained ivory.

II. In July 2014, Ambassador Pam C. Cusi from Rincossi travelled to Thorno on a

diplomatic mission and was involved in transporting 25 kg of illegal Thornon ivory from

Aliya to Rincossi. Rincossi confiscated the same and informed Aliya, pursuant to which the

two countries agreed to conduct a joint investigation. It was later discovered that Cusi’s act

was part of a 20-member operation of BU, who had been trafficking illegal ivory from

Thornon elephants from Aliya to Rincossi for three years. BU is a private group engaged in

international transport. About 1500 kg of ivory was confiscated from their transport

containers, but no members were arrested.

III. Between 15 January 2015 and 17 April 2015, several diplomatic notes were

exchanged between the governments of the two states. In them, Aliya requested for

prosecution of Ambassador Cusi and the 20 BU members, as well as return of the Thornon

ivory confiscated from all of them, as under various treaties and CIL. Rincossi denied both.

IV. The negotiations between the two states having failed, both decided to submit the

matter before the International Court of Justice under a Special Agreement. In this regard,

Rincossi agreed to suspend destruction of ivory till the matter was determined by the ICJ.

-MEMORIAL FOR THE APPLICANT-

 QUESTIONS PRESENTED xv

QUESTIONS PRESENTED

I. WHETHER OR NOT, RINCOSSI VIOLATED INTERNATIONAL LAW BY FAILING TO ARREST OR

PROSECUTE AMBASSADOR PAM C CUSI AND THE 20 BU MEMBERS?

II. WHETHER OR NOT, RINCOSSI IS IN VIOLATION OF INTERNATIONAL LAW BY DESISTING TO

RETURN ALL THE CONFISCATED IVORY AND DESTROYING THE SAME?

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SUMMARY OF ARGUMENTS xvi

SUMMARY OF ARGUMENTS

1. Prosecution of Ambassador Cusi and 20 BU Members

Rincossi has breached international law by failing to prosecute Ambassador Pam C. Cusi and

the 20 BU members for their illegal smuggling of Aliyan ivory under various treaties and

customary international law. Rincossi is in breach of its obligations to prosecute all the

perpetrators under the CITES. Further, Rincossi has an obligation to prosecute Ambassador

Cusi the UNCAC and the 20 BU members under the UNTOC. Additionally, Rincossi has

also breached customary international law by violating the principles of aut dedere aut

judicare and Sustainable Development. Therefore, per the ARSIWA, it can be held

responsible.

2. Return of Confiscated Ivory

Rincossi has breached its treaty and customary obligations by refusing to return the ivory

confiscated from both perpetrators back to Aliya. It has an obligation to return the ivory

smuggled by both Ambassador Cusi and the 20 BU members under the Cultural Property

Convention and the CITES. Rincossi also has an obligation to return the ivory confiscated

from Ambassador Cusi under the UNCAC and from BU’s transport containers under the

UNTOC. Lastly, Rincossi can be held responsible as under the ARSIWA, enabling Aliya to

claim return of all the ivory as a mode of reparation.

-MEMORIAL FOR THE APPLICANT-

 ARGUMENTS ADVANCED 1

ARGUMENTS ADVANCED

I. RINCOSSI HAS VIOLATED INTERNATIONAL LAW BY FAILING TO

PROSECUTE AMBASSADOR CUSI AND THE 20 BARNUM URITOVSKY

MEMBERS

By failing to prosecute Ambassador Cusi and 20 BU members, Rincossi has breached its

obligations under various international treaties [1.1]. It has further violated its customary

international law obligations [1.2].

1.1 Rincossi Has Breached Its Treaty Obligations

Rincossi is in breach of its obligations to prosecute all the perpetrators under the CITES

[1.1.1]. Further, Rincossi has an obligation to prosecute Ambassador Cusi the UNCAC

[1.1.2] and the 20 BU members under the UNTOC [1.1.3].

1.1.1 Breach of Rincossi’s Obligation to Penalise Under CITES

Rincossi, being a signatory1, is required to penalize those who partake in the illegal trade or

possession of endangered species or their derivatives in contravention of the CITES.2 By

failing to prosecute Ambassador Cusi and the 20 BU members for their illicit smuggling of

ivory, Rincossi has violated its obligation under CITES.

1
R. 8.
2
Convention on International Trade in Endangered Species of Wild Flora and Fauna, art. VII (1)(a), March 3,

1973, 993 U.N.T.S. 243 [hereinafter CITES].

-MEMORIAL FOR THE APPLICANT-

ARGUMENTS ADVANCED 2

(a) Interpretation of the word ‘penalize’

While interpreting the provisions of a treaty, importance must be given to its object and

purpose, enshrined in the preamble3, so as to maximize the effectiveness of the provisions

therein.4 Here, the preamble states that the objective of CITES is to protect and conserve

endangered species, and to achieve this goal the parties are to regulate the trade of such

species5 - with due importance and ‘strict regulation’ to be given to the Appendix I species,6

to which the Thornon Elephants belong.7 In this regard, Article VIII mandates penalization

by the parties.8 We submit that a narrow interpretation alluded to ‘penalize’ so as to read

mere enactment of legislation would prove to be ineffective. The CITES Secretariat9 and

various Conference of Parties10 have stated that it is actual enforcement, and not merely

enacting of legislation, that lies at the crux of this Convention.

(b) Monitoring and Warning are not Sufficient to Satisfy Obligation

It is submitted that mere monitoring and warning do not satisfy the obligations under CITES.

The IUCN Legislative Guidelines have stated that without effective penalties, enforcement

3
BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 281 (2008); Vienna Convention on the Law of

Treaties, art. 31(1), January 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT].
4
Sir Humphrey Waldock, Special Rapporteur, 3rd Report on Law of Treaties, 1964 2 I.L.C. Yearbook 7 (1964),

U.N. Doc. A/CN.4/SER.A/1964/ADD.1; Territorial Dispute (Libya v. Chad), 1994 I.C.J. 7, ¶ 47 (February 3).
5
CITES, Art. III(B)(1).
6
CITES, Art. II(1).
7
R. 8.
8
CITES, Art. VIII(1)(a).
9
CITES Secretariat, Notification to the Parties, No. 951 (29 January 1997).
10
CITES, Wildlife Trade Policy Reviews, Res. Conf. 15.2; CITES, African Elephant Action Plan and African

Elephant Fund, Res. Conf. 16.9.

-MEMORIAL FOR THE APPLICANT-

ARGUMENTS ADVANCED 3

becomes impossible.11 The most severe punishment must be meted out to those who commit

offences with respect to Appendix I species.12

In the present matter, the Thornon elephants have witnessed a decline of nearly half their

population in the past decade13 and are of immense cultural and ecological significance to

Aliya14. Rincossi is therefore breaching it’s obligations under this convention by failing to

prosecute Ambassador Cusi and the 20 BU Members for their illicit smuggling of vast

quantities of ivory.

1.1.2 Rincossi has an Obligation to Prosecute Ambassador Cusi Under UNCAC

Rincossi’s obligations under the UNCAC mandate prosecution of individuals who act in

violation of the provisions of this treaty.15 This is evinced by the usage of ‘shall’ in the

Article 30(1), as contrasted with provisions that are ‘weak’ in form as shown by the usage of

‘shall consider’ or ‘shall endeavour’ thereunder.16 By failing to prosecute Ambassador Cusi,

Rincossi has breached its obligation under this treaty. Furthermore, non-criminal sanctions

may accompany criminal sanctions, but may not be a substitute for them.17 Therefore,

11
IUCN Council, Guidelines for Legislation to Implement CITES, available at

https://portals.iucn.org/library/efiles/documents/EPLP-026.pdf (last accessed July 24, 2015).

12
Id.
13
R. 2.
14
R. 15.
15
United Nations Convention Against Corruption, art. 30, 31, 14 December 2005, 2349 UNTS 41 [hereinafter

UNCAC].
16
U.N.O.D.C., LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF THE UNITED NATIONS CONVENTION AGAINST

CORRUPTION 104 (2012) [hereinafter UNCAC Legislative Guide].

17
Id, at 83.

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ARGUMENTS ADVANCED 4

Rincossi cannot state that it has fulfilled its obligation by monitoring and sending a written

warning in lieu of prosecution.

We further submit that Aliya is not breaching upon Rincossi’s sovereignty by calling upon it

to fulfill their treaty obligations. Sovereign protection pertains to matters purely domestic in

nature.18 In the instant case, the matter is not solely domestic since the ivory in question has

been smuggled from Aliyan territory.19 In any case, sovereign discretion, as per article 4, only

extends to interference that is forcible or otherwise coercive in nature, depriving the state of

control over domestic matters.20 Under the UNCAC, prosecution is mandatory, while

discretion may be exercised in determining the degree of punishment. 21 Further, the principle

of aut dedere aut judicare, or the obligation to prosecute, is embodied in this convention.22

Therefore, Rincossi is violating its obligations under this treaty by failing to prosecute

Ambassador Cusi for illicit enrichment and misuse of her official capacity by smuggling

25kgs of ivory.

Rincossi also cannot invoke the justification of diplomatic immunity or privileges since the

instant matter falls outside the scope of VCDR. As per Article 31(1), immunity to diplomats

is granted only in the receiving state and does not absolve the diplomat’s liability

18
UNTOC, Art. 3; DAVID MCCLEAN, TRANSNATIONAL ORGANIZED CRIME: A COMMENTARY ON THE UN

CONVENTION AND ITS PROTOCOLS 83 (2007); U.N.O.D.C., LEGISLATIVE GUIDE FOR THE IMPLEMENTATION OF

THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME 16 (2009).

19
R. 16, 31.
20
OPPENHEIM, INTERNATIONAL LAW 432 (9th ed., 1992).
21
U.N.O.D.C., TECHNICAL GUIDE TO THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL

ORGANIZED CRIME 82 (2009) [hereinafter UNTOC Technical Guide].

22
Rep. of the Int'l law Comm'n, 66th sess, May 5-June 6, July 7- August 8, 2014, U.N Doc. A/69/10 [hereinafter

ILC Final Report]; See also UNCAC LEGISLATIVE GUIDE, Supra note 16, at 135.

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ARGUMENTS ADVANCED 5

altogether.23 Therefore, Rincossi cannot extend special treatment to Ambassador Cusi as per

this Convention.

Thus, we submit that Rincossi has breached its specific obligation to prosecute Ambassador

Cusi under the UNCAC.

1.1.3 Rincossi has an Obligation to Prosecute the 20 BU Members under UNTOC

The object of the UNTOC is to deny safe haven to those who partake in transnational

organized crimes, with emphasis given to crimes concerning wildlife trafficking and

corruption.24 Article 11(1), pertaining to prosecution, is mandatory, as evinced by usage of

‘shall.’ While exercising discretion under this provision, due importance must be given to the

gravity of the offence.25 In this regard, the Convention has stated that a crime is serious if it

constitutes 4 years imprisonment.26 This is further evinced by the Resolutions of Parties at the

Doha Conference,27 calling for prosecution of offences relating to cultural property and

wildlife trafficking. Therefore, non-prosecution of the 20 BU members violates Rincossi’s

obligations under the UNTOC.

23
Vienna Convention on Diplomatic Relations, art 31, 18 May 1961, 500 U. N. T. S 95 [hereinafter VCDR];

SATOW, DIPLOMATIC PRACTICE, 150 (6th ed. 2011).

24
United Nations Convention against Transnational Organized Crime, preamble, art. 11(1), 8 January 2001,

G.A. Res. A/RES/55/25 [hereinafter UNTOC].

25
UNTOC, art. 11(2) ; MCCLEAN, supra note 18, at 78.
26
UNTOC, Art. 2(b).
27
Doha Declaration on Integrating Crime Prevention and Criminal Justice, “Future we Want,”

A/CONF.222/L.6.

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ARGUMENTS ADVANCED 6

Additionally, as explained above, Aliya’s claim for prosecution does not breach Rincossi’s

sovereignty as per Article 4.28 Therefore, by failing to prosecute the 20 Barnum Uritovsky

members, Rincossi has violated and failed to fulfill its obligations under the UNTOC.

In conclusion, Rincossi’s failure to prosecute is in violation of its obligations under the

CITES, the UNCAC and the UNTOC.

1.2 Rincossi has breached its customary law obligations

By failing to prosecute Ambassador Cusi and the 20 BU Members, Rincossi has breached the

principle of aut dedere aut judicare [1.2.1] and of Sustainable Development [1.2.2].

Consequently, Rincossi therefore attracts international responsibility for its acts as per the

ARSIWA [1.2.3].

1.2.1 Rincossi has breached the principle of aut dedere aut judicare

Rincossi has an obligation under customary international law to prosecute Ambassador Cusi

and the 20 BU members for their illicit smuggling of ivory, and a failure to prosecute them is

a breach of the principle aut dedere aut judicare.

This principle, which has acquired the status of custom, refers to the obligation upon states to

prosecute or extradite individuals who commit serious international crimes.29 The offences

28
See Section 1.1.2.
29
Rep. of the Int'l law Comm'n, 56th sess., Preliminary Remarks, 3 May-4 June and 5 July-6 August 2004, U.N.

Doc. A/59/10; Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention

Arising From the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom), 161 I.C.J. Reports

1999 (Weeramantry J., Dissenting); M CHERIF BASSIOUNI & EDWARD M WISE, AUT DEDERE AUT JUDICARE:

THE DUTY TO PROSECUTE OR EXTRADITE IN INTERNATIONAL LAW 3 (1995).

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ARGUMENTS ADVANCED 7

that fall under this principle are not exhaustive and it extends to several other crimes.30 To

ascertain what kind of offences this applies to, the progressive development in this regard

needs to be assessed.31

While assessing such progressive development, due importance must be given to the practice

followed by States and the opinion juris that has evolved.32 State Practice is reflected through

the international acts of a State.33 The prosecution of individuals for wildlife trafficking

crimes, especially those concerning elephants and rhinoceros, is now widely practiced by

States, as is evidenced through the vast number arrests for the same.34 Further, the increase in

the quantity of legislations enacted by countries reflects the categorisation of such offences as

being serious in nature. 35 Moreover, the ‘aut dedere aut judicare’ principle is embodied in

30
ILC Final Report, Supra note 22, at 3.
31
See BASSIOUNI at 29; See also ILC Final Report, supra note 22, at 17.
32
BASSIOUNI, Supra note 29, at 23; See also ILC Final Report supra note 22, at 17.
33
SHAW, PUBLIC INTERNATIONAL LAW 82 (2008); SANDS & PEEL, PRINCIPLES OF INTERNATIONAL

ENVIRONMENTAL LAW 112 (2012).

34
Lusaka Agreement Task Force, Operation Cobra II Evaluation Report 8 (2014), available at

http://lusakaagreement.org/wp-content/uploads/2015/04/OPERATION-COBRA-II-EVALUATION-

REPORT_Final_dist..pdf <last accessed: 11th October 2015>; UNODC, Successful operation highlights

growing international cooperation to combat wildlife crime, June 18, 2015,

https://www.unodc.org/unodc/en/frontpage/2015/June/successful-operation-highlights-growing-international-

cooperation-to-combat-wildlife-crime.html; Environment and Natural Resources Division, U.S. Dep’t of Justice,

The Fight Against Wildlife Trafficking, available at http://www.justice.gov/enrd/wildlife-trafficking; CITES,

China Increases Prosecutions In Response To Illegal Trade In Elephant Ivory, Nov. 29 2013, available at

https://www.cites.org/eng/news/sundry/2013/20131128_china_ivory_prosecutions.php.
35
I.C.R.C., Customary IHL Database, https://www.icrc.org/customary-ihl/eng/docs/v2_rul_rule45 <last

accessed July 24, 2015>; ROSALIND REEVE, POLICING INTERNATIONAL TRADE IN ENDANGERED SPECIES – THE

CITES TREATY AND COMPLIANCE 134 (2002).

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ARGUMENTS ADVANCED 8

both the UNCAC36 and the UNTOC37; and has been extensively discussed in relation to

wildlife trafficking crimes.38

There is also sufficient evidence of opinion juris in this regard. International resolutions,

signing of treaties and declarations are forms of opinio juris.39 Multiple resolutions40 and

declarations41 call upon states to implement efficient legislative and enforcement mechanisms

to combat and deter trade in threatened species.42 These resolutions, as well as bodies such as

the UNODC, have categorically defined such crimes as being ‘serious crimes’ in

36
UNCAC LEGISLATIVE GUIDE, supra note 16, at 163; UNTOC TECHNICAL GUIDE, supra note 21 at 183.
37
UNITED NATIONS OFFICE ON DRUGS AND CRIME, TRAVAUX PRÉPARATOIRES OF THE NEGOTIATIONS FOR THE

ELABORATION OF THE UNITED NATIONS CONVENTION AGAINST TRANSNATIONAL ORGANIZED CRIME AND THE

PROTOCOLS THERETO 163 (2006)

38
U.N.O.D.C., Global Programme for Combating Wildlife and Forest Crime Annual Report 3 (2014), available

at https://www.unodc.org/documents/Wildlife/WLFC_Annual_Report_2014.pdf <last accessed October 25,

2015>.
39
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J.

14, ¶188– 91 (June 27); Legality of the Threat or the Use of Nuclear Weapons, 1996 I.C.J. 226, 251, ¶70 (July

8); SHAW, supra note 33.

40
CITES, Trade in Elephant Specimens, Res. Conf. 10.10 (Rev. CoP12); United Nations Environment

Assembly, Illegal Trade In Wildlife, Res. AMCEN/15/Ref/3; Strengthening the United Nations Crime

Prevention and Criminal Justice Programme, in particular its Technical Cooperation Capacity, G.A. Res.

68/193, U.N. Doc. A/RES/68/193/Annex (2013); ECOSOC Res. 2013/40, U.N. DOC. E/RES/2013/40 (Oct 17,

2013) [hereinafter ECOSOC Res].

41
London Conference on The Illegal Wildlife Trade, Declaration, ¶15, Feb. 2014, available at

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/281289/london-wildlife-

conference-declaration-140213.pdf.
42
Council Decision (EU) 2015/451 of 6 March 2015 Concerning the Accession of the European Union to the

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

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ARGUMENTS ADVANCED 9

international law.43 In particular, the correlation between transnational wildlife trafficking

crimes and corruption has been noted as a grave threat to endangered species.44

In the instant matter, the gravity of the offence committed is extremely serious in nature. The

said activities have been continued for a period of over three years,45 there has been the

involvement of a high level government official,46 and the quantity of ivory smuggled is over

1.5 tonnes.47 The offence is grave in nature and poses a serious threat to the Thornon

elephants that have witnessed a decline of nearly half their population in the past decade

itself.48 We therefore submit that the present case evokes this principle of aut dedere aut

judicare, and Rincossi, by failing to prosecute Ambassador Cusi and the 20 Barnum

Uritovsky Members, in in breach of this customary principle.

1.2.2 Rincossi has Violated the Principle of Sustainable Development

We submit that Rincossi has breached the principle of ‘sustainable development’ by failing to

prosecute Ambassador Cusi and the 20 BU Members as it fails to deter crimes. Several ICJ

Judgements and Opinions49 acknowledge the translation of this concept into a custom. It is

used as an approach to decision‐making that necessitates consideration of environmental

43
ECOSOC Res, supra note 60; Commission on Crime Prevention and Criminal Justice (CCPCJ) Res 23/1

(2014).
44
Doha Declaration, supra note 27; See also London Conference, Supra note 41.
45
R. 26.
46
R. 25.
47
R. 26.
48
R. 2.
49
Gabcikovo-Nagymaros Project (Hungary v. Slovakia.), 1997 I.C.J. 7, ¶75, (September 25) (Weeramantry J,

Dissenting); Pulp Mills in the River Uruguay Case (Argentina v. Uruguay.) 2010 I.C.J. ¶55, (April 20); Iron

Rhine Arbitration, Belgium v Netherlands, Award, ICGJ 373 (Perm. Court Arb. 2005).

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ARGUMENTS ADVANCED 10

protection so as to sustain its use for future generations.50 This includes within its scope the

undertaking of efficient deterrent measures such as prosecution of environmental violations.51

Moreover, the CITES Conference of Parties have constantly reiterated the importance of

‘sustainable use’ of endangered species.52 This has been further elucidated upon by various

Conferences,53 recognizing prosecutions as a means of reducing the dramatic increase in

elephant poaching incidents and the severe threat it poses to sustainable development.54

The non-prosecution of Cusi and the Barnum Uritovsky members fails to achieve the purpose

of deterring illegal trade, encouraging this illegal market at the detriment of the elephants.

Thus, Rincossi violates the principle of Sustainable Development by failing to prosecute its

nationals.

It is therefore submitted that Rincossi has further breached its obligations under customary

international law of the principles aut dedere aut judicare and sustainable development.

50
VAUGHAN LOWE, SUSTAINABLE DEVELOPMENT AND UNSUSTAINABLE ARGUMENTS, reprinted in International

Law and Sustainable Development 19 (Alan Boyle and David Freestone eds. 1999).
51
O.E.C.D., Background Paper, Conference on Economic Aspects of Environmental Compliance Assurance 7

(2004); See also ECOSOC Res. 2013/40, supra note 43.

52
DAVID S. FAVRE, INTERNATIONAL TRADE IN ENDANGERED SPECIES: A GUIDE TO THE CITES 257 (1989);

CITES, Sustainable Use of Biodiversity: Addis Ababa Principles and Guidelines, Res. Conf. 13.2 (Rev.

COP14).
53
Declaration of the United Nations Conference on the Human Environment, U.N.Doc.A/CONF.48/ 14/Rev.1

(1972) [hereinafter Stockholm Declaration]; See also London Conference, Supra note 41; Doha Declaration,

Supra note 27.

54
London Declaration, supra note 41.

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ARGUMENTS ADVANCED 11

1.2.3 Rincossi has State Responsibility to Prosecute for a Violation of International Law

Rincossi has committed an internationally wrongful act by failing to prosecute Ambassador

Cusi and the 20 Barnum Uritovsky members and hence its international responsibility is

invoked.55 For the satisfaction of the first criteria under Article 2 of ARSIWA, the conduct

that is being questioned must be attributable to the State.56 Instantly, the non-prosecution of

the aforementioned individuals is the act in question. The duty to prosecute rests squarely on

the shoulders of the State.57 For a conduct to be attributable to a State, it may also be an

omission58 - for example, in the Diplomatic Consular Staff Case the Court made reference to

the “inaction” and “failure to take appropriate steps” by the Government of Iran.59 Similarly,

Rincossi has failed to prosecute these individuals - an omission on its part. Thus, act in

question is directly attributable to the State, fulfilling the first criteria. Secondly, the conduct

must constitute a breach of an international legal obligation in force for that State at that

time.60 The same has already been established in [1.1], [1.2.1] and [1.2.2]. Therefore,

Rincossi bears responsibility for its act of non-prosecution under international law.

55
JAMES CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART 94 (1st ed. 2013).
56
Id.
57
Thomas H. Youmans (U.S.A.) V. United Mexican States, 4 R.I.A.A. 61 (Perm. Court Arb. 1926); VIRGINIA

MORRIS & MICHAEL P. SCHARF, AN INSIDER’S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE

FORMER YUGOSLAVIA 64-65 (1995).

58
Id.
59
Id.
60
Articles on the Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, art 2, U.N.

GAOR, 56th Sess., Supp. No. 49, U.N. Doc. A/RES/56/83 [hereinafter ARSIWA].

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ARGUMENTS ADVANCED 12

In Conclusion: By failing to prosecute Ambassador Cusi and the 20 BU members, Rincossi

has breached its treaty obligations under the CITES, the UNCAC and the UNTOC. It has

further violated its customary international law obligations of ‘aut dedere aut judicare’ and

of Sustainable Development.

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 ARGUMENTS ADVANCED 13

II. RINCOSSI HAS AN OBLIGATION TO RETURN ALL THE

CONFISCATED IVORY TO ALIYA.

Rincossi, being a signatory, has certain binding treaty obligations to return the confiscated

ivory to Aliya. The relevant treaties in this regard are the Cultural Property Convention; the

CITES; the UNCAC and the UNTOC [2.1].

Further, Rincossi also has a customary obligation under the ARSIWA to provide restitution to

Aliya [2.2].

2.1 Rincossi, under certain treaty obligations, must return the confiscated ivory

As under the Cultural Property Convention and the CITES, Rincossi has an obligation to

return the ivory confiscated from both Ambassador Cusi and the Transport Containers of BU

[2.1.1]

Further Rincossi has an obligation to return the ivory confiscated from Ambassador Cusi

under the UNCAC [2.1.2] and from BU’s transport containers under the UNTOC [2.1.3].

2.1.1 Rincossi’s obligations to return all the confiscated ivory under the Cultural Property

Convention

The Cultural Property Convention is aimed at curbing theft of a State’s cultural property.61 In

addition to prevention, it also establishes recovery mechanisms.62

61
James Nafziger, The New International Legal Framework For The Return, Restitution Or Forfeiture Of

Cultural Property, 15 N.Y.U. J. INT'L L. & POL. 789, 791-92 (1982-1983).

62
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership

of Cultural Property, art 7(b), 13(b), November 14, 1970, 823 U.N.T.S. 231[hereinafter Cultural Property

Convention]; U.N.E.S.C.O., Operational Guidelines for the Implementation of the Convention on the Means of

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ARGUMENTS ADVANCED 14

It is submitted that as per Article 7(b), (a) the ivory is cultural property of Aliya; (b) an

inventory of the same has been maintained and (c) the Thorno Elephant Wildlife Park comes

under “similar public institution”, enabling Aliya to claim return.

(a) Ivory of the Thornon elephants is cultural property of Aliya.

This Convention is premised on the concept of cultural nationalism, by virtue of

which State possess immense discretion in ascertaining their cultural property. 63

For any property to become “cultural property”, it must be so specifically designated

by the State along with its purpose, and must fall under one of the broad categories

listed in Article 1.64 Aliya has declared the Thorno elephants and their “parts and

derivatives” to be of cultural and scientific significance.65 The ivory of the Thorno

elephants is also a rare specimen of fauna as per Article 1(a) of the Convention.

(b) Aliya has kept an inventory of the ivory.

Article 5(b) lays down the requirement for States to maintain proper inventories of

their cultural property to evince ownership.66 An estimate of the elephants in the

Thorno National Wildlife Park is maintained by Aliya.67 This acts as an inventory of

their ivory as well.

(c) The said Wildlife Park is a “public institution” as per Article 7(b).

Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 10, 14

(1970) [hereinafter Operational Guidelines].

63
John Merryman, Two Ways of Thinking About Cultural Property, 80 AM J. INT’L L. 834, 842-43 (1986).
64
Cultural Property Convention, art 4, 6.
65
R. 15.
66
P ASKERUD AND E CLEMENT, PREVENTING THE ILLICIT TRAFFICKING IN CULTURAL PROPERTY 23 (1997).
67
R. 16.

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ARGUMENTS ADVANCED 15

The interpretation of “similar public institutions” in Article 7(b) should as per the rule

of ejusdem generis68. “Museums” and “monuments” are institutions whose activities

are aimed at preservation of “cultural property”.69 The Thorno Elephant National

Park, from where the ivory was obtained70, is also one such institution.

If all the conditions under Article 7(b) are satisfied, the ordinary meaning, along with the

object and purpose of the treaty, of “taking appropriate steps” with regard to return would be

facilitation of the same. Thus, in the instant case, Rincossi is obligated to return all the

confiscated ivory.

2.1.2 Rincossi’s obligations to return all the ivory under the CITES

One objective of the CITES is to curb the trade of species and specimen of fauna listed under

Appendix 1, so as to increase their numbers.71

First, the convention is only applicable with regard to “readily recognisable” specimen as per

Article I(b)(ii). The Thornon elephants are listed under Appendix 1 of the Cites.72 Further,

use of DNA testing for identification, as adopted in the instant case73, makes the specimen

“readily recognisable”.74

Second, the CITES also lays down the measures that States are required to undertake. As per

Article VIII(1)(b) and (4), one such measure is return of confiscated specimen to the victim

68
LORD MCNAIR, THE LAW OF TREATIES, 402 (1961).
69
International Council for Museums, ICOM Code of Ethics for Museums (Nov 4, 1986).
70
R. 16, R. 31.
71
CITES, Preamble; WILLEM WIJNSTEKERS, EVOLUTION OF THE CITES 50 (9th ed. 2011).
72
R. 8.
73
R. 16.
74
A GILLESPIE, CONSERVATION, BIODIVERSITY AND INTERNATIONAL LAW 23 (2011).

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 ARGUMENTS ADVANCED 16

State. Here, the principle of effective interpretation75 is to be adopted. An interpretation of

Article VIII(1)(b) favouring return effectively achieves the objectives of the Convention, as

such return acts as a strong deterrent, if for example, the persons accused of smuggling could

be made to pay for transport costs.76

As explained earlier, Rincossi cannot claim satisfaction of its obligations under the CITES by

enacting a legislation.77 Further, the amendment to the Rincossi Flora and Fauna Trafficking

Act provides for destruction of confiscated ivory “where practicable”.78 Here, destruction

would not be practicable. The Thornon ivory is cultural property of Aliya. It also contains a

special DNA strand, making it scientifically significant79, especially in light of them being a

“keystone” species80. Further, Aliya intends to store the ivory in a secure governmental

facility and use it for educational and cultural purposes.81

2.1.3 Rincossi’s obligation to return the ivory confiscated from Ambassador Cusi under the

UNCAC

The objective of the UNCAC is to combat corruption, by calling for increased international

cooperation.82

75
See Libya/Chad, 1994 I.C.J. 1, ¶ 51 (February 3); Aegean Sea Continental Shelf (Greece v. Turkey); 1978 I.C.

J. 22, ¶ 52 (December 19).

76
CITES, Disposal of confiscated and accumulated specimens, Res. Conf. 9.10 (Rev. COP15); see also

Clarification No. 15.

77
VCLT, art. 27.
78
R. 18; R.21.
79
R. 16.
80
R. 15.
81
Clarification No. 14.
82
UNCAC, Preamble.

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 ARGUMENTS ADVANCED 17

First, it is submitted that the Convention is applicable. The smuggled ivory is a “proceed

from a crime”83 and Ambassador Cusi is a “public official”84. Also, the smuggling of ivory

by her is an abuse of her power amounting to “illicit personal enrichment”85.

Second, a fundamental aspect of the UNCAC is asset recovery.86 Article 57 imposes upon

States an obligation to return confiscated assets and the procedure for return of different kinds

of assets, if a request for the same is made by another State. In instant case, the applicable

provision for return of the confiscated ivory is Article 57(3)(c). However conduct of a State

pursuant to this provision has to be in good faith.87 In the instant case, the ivory had been

confiscated by Rincossi as per Article 31.88 Further, the status of the ivory as cultural

property and the DNA test performed89 evinces Aliya’s ownership of the same. Thus, a good

faith interpretation of “priority consideration” as under Article 57(3)(c) would mean return of

such ivory to Aliya.

2.1.4 Rincossi’s obligation to return the ivory confiscated from BU’s transport containers

under the UNTOC

The object and purpose of the UNTOC is to combat transnational organized crime by

increasing cooperation between States. The Convention also establishes a mechanism for

83
UNCAC, art 2(e).
84
UNCAC, art 2(a).
85
UNCAC art 20.
86
See UNCAC, art 51.
87
VCLT, art 26; Case Concerning Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), 2007 I. C. J 37, ¶ 142 (July 11).

88
R. 26.
89
R. 31.

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ARGUMENTS ADVANCED 18

disposa of confiscated asset through return.90 It is first submitted that this Convention is

applicable. Rincossi is a signatory to the UNTOC.91 Additionally, as per Article 2, trafficking

of wildlife is a “serious crime”92 as the Rincossi Flora and Fauna Trafficking Act imposes a

penalty of 8 years of prison for the same; BU is an “organized crime group”; and the ivory

amounts to “proceeds of a crime”.

Further, a claim for return under Article 14 requires (i) such return to be in accordance with

the domestic legislation of the requested State and (ii) a prior request for confiscation of the

said asset to be made as well.

(i) Return is in accordance with the domestic law of Rincossi

Here, return of the ivory would be in accordance with the amended Rincossi Flora

and Fauna Act, as the same would be more “practicable”93 than destruction, as

elaborated earlier.

(ii) A prior request for confiscation as per Article 13 was made by Aliya

In the instant case, the confiscation was undertaken as per Article 13.94 Further,

the investigation that unearthed the ivory smuggling by BU was a joint

90
See United Nations Conference of the Parties to the United Nations Convention Against Transnational

Organized Crime, Vienna, Austria, Oct. 18-22, 2010, Report of the Conference of the Parties to the United

Nations Convention against Transnational Organized Crime, U.N. Doc. CTOC/COP/2010/17 (2010).
91
R. 12.
92
U.N. Conference of Parties to the U.N. Convention against Transnational Organised Crime, Vienna, Austria

Oct. 15-19, 2012, Technical assistance provided to States in the application of the United Nations Convention

against Transnational Organized Crime to new forms and dimensions of transnational organized crime, U.N.

Doc. CTOC/COP/2012/7 (2012).

93
See R. 21.
94
R. 26.

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ARGUMENTS ADVANCED 19

investigation undertaken by Aliya and Rincossi.95 This indicates an implied

request made by Aliya for confiscation of any smuggled ivory discovered in the

course of the said investigation.

Additionally, if the assets also constitute cultural property of the victim State, then increased

importance is given to return of such assets.96 Thus, “priority consideration” as per Article

14(2) would mean returning the confiscated assets in the instant case.

In conclusion, Rincossi has treaty obligations under the (i) Cultural Property Convention; (ii)

the CITES; (iii) the UNCAC and (iv) the UNTOC to return the confiscated ivory to Aliya.

2.2 Rincossi has a customary obligation to provide restitution to Aliya as per the

ARSIWA

The ARSIWA is a codification of the customary law pertaining State Responsibility.97 Article

2 of the ARSIWA lays down two conditions that are required to be satisfied to invoke

responsibility of a State – first, attribution of an act or an omission to the State; and second,

consequent breach of international law.98

It is submitted that, the acts of smuggling by [2.2.1] Ambassador Cusi and [2.2.2] the twenty

BU members can be attributed to Rincossi. [2.2.3] The said acts constitute a breach of

customary international law. Thus, [2.2.4] Aliya can claim restitution as a form of reparation.

95
R. 23.
96
See G.A Res 55/25, U.N. GAOR, 55th Sess., Supp No. 25, U.N Doc A/RES/55/25 (Vol III) (Jan. 8, 2002).
97
Bosnia Genocide, 2007 I. C. J 37, ¶ 379, 385,398.
98
CRAWFORD, THE INTERNATIONAL LAW COMMISSION'S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION,

TEXT AND COMMENTARIES (2002); Allott, State Responsibility and the Unmaking of International Law, 29

HARV.INT'L.L.J. 1, 10 (1988).

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 ARGUMENTS ADVANCED 20

2.2.1 The act of smuggling of 25 kgs of ivory by Ambassador Cusi in July twenty14 can be

attributed to Rincossi

First, if any individual performing the alleged act is an official of a State as under Article 4 of

the ARSIWA, the State is held responsible. In addition to the person must also be an organ of

the state as per domestic law,99 the test is whether the said person was acting under the cloak

of governmental authority.100 Ambassador Cusi, by virtue of being a diplomat as per

Rincossian law and visiting Aliya for the purpose of a diplomatic mission101 is clearly an

official and therefore an agent of the State. She also engaged in smuggling while performing

her diplomatic functions.

Second, even if her conduct is said to be ultra vires, the same is not a bar for holding the State

responsible.102

2.2.2 The acts of smuggling of 1500 kgs of ivory by the twenty BU members committed over a

span of three years can also be attributed to Rincossi

The acts of private groups can be attributed to the State if they were performed under the

“control, instructions or direction” of the State.103 As laid down by the ICTY in Prosecutor

99
CRAWFORD, supra note. 23, at 98.
100
Petrolane, Inc., Eastman Whipstock Manufacturing, Inc. and others v The Government of the Islamic

Republic of Iran, Iranian Pan American Oil Company and others, 131 Iran-U.S Cl. Trib. Rep. 518 ¶ 82, 83

(1991).
101
R. 23.
102
ARSIWA, art. 7; See also Franciso Mallén (United Mexican States) v. U. S. A. 4 US-Mexico Cl Trib. Rep

178 (1927); Velaquez Rodriguez v. Honduras, Merits, Judgement, Inter-Am Ct. H. R. (ser C) No 4 (Jul 29,

1988).
103
Article 8, ARSIWA; L. Cameron, Private Military Companies: Their Status Under International

Humanitarian Law And Its Impact On Their Regulation, 88 INT’L REV OF RED CROSS. 863, 869 (2006).

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ARGUMENTS ADVANCED 21

v. Dusko Tadic104, the test to determine the existence of control by the State is the “overall

control” test. According to the same, a general amount of control, exercised by the State over

the functioning the said group, instead of control over every act, is enough to attribute their

conduct to the State.105 In the instant case, BU is politically well-connected106 and regularly

makes campaign contributions for the ruling party in the government107. They also receive

governmental contracts108 in the course of their transport business109. In addition, BU has

been monitored by Rincossian officials for three years110, and in the same duration the said

1500 kgs of ivory was smuggled. In such a situation, it can be inferred that the Rincossian

government was either aware of the smuggling undertaken by BU or participated in the same.

Thus, these acts can be attributed to Rincossi.

2.2.3 The acts of smuggling amount to breach of CIL

The acts of smuggling amount to a breach of the customary obligations of Protection of

Biodiversity and Sustainable Development.

104
Prosecutor v. Tadić, Case No.IT-94-1-A, ¶131 (1999).
105
Andre De Hoogh, Articles 4 and 8 of the 2001 ILC Articles on State Responsibility, the Tadić Case and

Attribution of Acts of Bosnian Serb Authorities to the Federal Republic of Yugoslavia, 72 BRIT. Y. B. INT’L L.

255, 257 (2002).

106
R. 25.
107
Clarification No. 26.
108
Clarification No. 24, 26.
109
R. 25.
110
Id.

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ARGUMENTS ADVANCED 22

To prove custom, there must be evidence of both State Practice and Opinion Juris.111 With

regard to the Protection of Biodiversity, the signing of treaties112 as well as agreements113

between States evince the same. Opinio Juris is evinced by GA Resolutions114 along with

participation of States in various conferences and the declarations115 issued therein and a

MoU signed under the CMS116. With regard to sustainable development, as explained,

sustainable development has acquired the status of a custom.117

Various jurists also recognize the importance of conservation of endangered species in the

interest of biodiversity and sustainable development.118

111
North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. Netherlands) 1985 I. C. J. 1985, ¶ 77

(February 20).
112
CITES, Preamble; Convention on Biological Diversity, art 1,5, June 5, 1992, 1760 U.N.T.S 79 [hereinafter

CBD].
113
African Convention on the Conservation of Nature and Natural Resources, art. II, Sept. 15, 1968 1001

U.N.T.S. 3.
114
G.A Res 65/161 U.N. GAOR, 65th Sess., Supp No. 161, U.N. Doc. A/RES/65/161 (Vol. III) (Mar. 11, 2010);

The Future We Want, G.A Res 66/288 U.N. GAOR, 66th Sess., Supp No. 288, U.N. Doc. A/RES/66/288 (Vol

III) (Sept. 11, 2011).

115
Stockholm Declaration, supra note 53, Principle 2; Rio Declaration on Environment and Development, June

14, 1992, 31 I.L.M. 874, Chapter 15;

116
Memorandum of Understanding concerning Conservation Measures for the West African Populations of the

African Elephant, Nov. 22, 2005.

117
see Section 1.2.2.
118
Louis Sohn, The Stockholm Declaration on the Human Environment, 14 HARVARD INT’L L.J 424 (1973);

Gabcikovo, 1997 I.C.J. 7, ¶ 75

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ARGUMENTS ADVANCED 23

2.2.4 Aliya, as the injured State, can claim restitution.

As per Article 42 of the ARSIWA, the State raising a claim for a remedy needs to be the

“injured” State. In the instant case, the above-mentioned obligations are owed to the

international community at large. In breaching them, Rincossi has caused injury to Aliya

specifically, as the ivory was obtained from Thorno Elephants in Aliya119. Thus, Aliya is an

“injured” State.

Further, as per Article 35, restitution can be claimed as a remedy, if it is neither materially

impossible nor a disproportionate burden.120 The purpose of restitution is to re-establish

status quo.121 Here, since physical return of the elephants poached for the ivory is physically

impossible, return of the confiscated ivory is the next best alternative for Aliya. It is further

submitted that the same would not amount to a disproportionate financial or infrastructural

burden upon Rincossi.

In conclusion, Aliya can hold Rincossi responsible for all the acts of smuggling, and claim

return of all the confiscated ivory as a mode of reparation.

119
R. 31.
120
ARSIWA, art 31, 35.

See also Dinah Shelton, Righting Wrongs: Reparations In The Articles On State Responsibility, 96 AM. J. INT'L

L. 833, 835-6 (2002).

121
Chorz6w Factory (Germany v. Poland) 1928, P. C. I. J. (ser. A) No. 13, at 70 (September 13).

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CONCLUSION 24

CONCLUSION

The Applicant, the Federal States of Aliya, respectfully asks this Court to adjudge and declare

that the Republic of Rincossi has breached its international law obligations with respect to:

I. The refusal to arrest or prosecute Ambaasador Cusi and the 20 BU members.

II. Desisting return of the ivory confiscated from the said perpetrators to Aliya.

Respectfully Submitted,

-Agents for Applicant-

Federal States of Aliya

-MEMORIAL FOR THE APPLICANT-