ISSUE 1: ARCTOS IS NOT LIABLE FOR TRANSBOUNDARY HARM.

Issue 1.1: No violation of No-Harm Principle:

The above four elements -- physical nature, human causation, damage criterion, and

boundary movement -- limit the scope of the term ‘‘transboundary damage. 1 (not exact

words but citation has been copied)

Article 2(c) of Prevention of Transboundary Harm from Hazardous Activities 2001:

“transboundary harm” means harm caused in the territory of or in other places under the

jurisdiction or control of a State other than the State of origin, whether or not the States

concerned share a common border.

Article 2(e ) of Draft principles on the allocation of loss in the case of transboundary

harm arising out of hazardous activities 2006 “transboundary damage” means damage

caused to persons, property or the environment in the territory or in other places under

the jurisdiction or control of a State other than the State of origin;

Article 2(b) of Prevention of Transboundary Harm from Hazardous Activities 2001:

“harm” means harm caused to persons, property or the environment;

Article 2(a) of Draft principles on the allocation of loss in the case of transboundary

harm arising out of hazardous activities 2006 “damage” means significant damage

caused to persons, property or the environment; and includes:

(i) loss of life or personal injury;

(ii) loss of, or damage to, property, including property which forms part

of the cultural heritage;

(iii) loss or damage by impairment of the environment;

1
O. Schachter, International Law in Theory and Practice (Dordrecht, Martinus Nijhoff, 1991), pp. 366--368.
 (iv) the costs of reasonable measures of reinstatement of the property, or

environment, including natural resources;

(v) the costs of reasonable response measures;

Article 2 (b) of Draft principles on the allocation of loss in the case of

transboundary harm arising out of hazardous activities 2006

“environment” includes natural resources, both abiotic and biotic,

such as air, water, soil, fauna and flora and the interaction between

the same factors, and the characteristic aspects of the landscape;

Issue 1.1.1: No significant Damage to environment:

Trail Smelter decision was significant since it showed that restrictions on

sovereignty could occur only once the transboundary damage reached a certain

level of harm.2 Prevent or abate any Transboundary environmental interference

or a significant risk thereof which causes substantial harm—i.e. harm which is

not minor or insignificant.3

Sovereignty of States may be restricted only when the damage reaches a

degree of severity.4

The rationale notes that conservation and restoration of ecological interactions

and processes is of greater significance for the long term maintenance of

biological diversity than simply protection of species.5

2
Franz Xaver Perrez, The Relationship between “Permanent Sovereignty” and the obligation not to case
transboundary environmental damage, 26 ENVIRONMENTAL LAW 1187 (1996).
3
International Law Commission, Report on the work of its fifty-third session: Commentary on Draft Articles on
Prevention of Transboundary Harm from Hazardous Activities, 148, (2001).
4
Xue Hanquin, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, 3-4 (2003).
 To be legally relevant, damage should be at least ‘‘greater than the mere

nuisance or insignificant harm which is normally tolerated.”6

Issue 1.2: Arctos act was not Internationally Wrongful Acts

The act of Arctos of killing and poisoning does not fall under the internationally wrongful Act.

Article 2 of Responsibility of States for Internationally Wrongful Acts 2001 : There is an

internationally wrongful act of a State when conduct consisting of an action or omission: (a) is

attributable to the State under international law; and (b) constitutes a breach of an international

obligation of the State.

Issue 1.2.1: Principle of State Necessity

The Act of Necessity is the recognized principle under Article 51 of the UN

Charter. The act of killing the grey bear is permissible under the exception

clause of Responsibility of States for Internationally Wrongful Acts 2001 7.

5
Principle 5 of Ecosystem Approach of CBD; Principle 5: Conservation of ecosystem structure and functioning, in
order to maintain ecosystem services, should be a priority target of the ecosystem approach.
Ecosystem functioning and resilience depends on a dynamic relationship within species, among species and between
species and their abiotic environment, as well as the physical and chemical interactions within the environment. The
conservation and, where appropriate, restoration of these interactions and processes is of greater significance for the
long-term maintenance of biological diversity than simply protection of species.
6
J. Barboza, ‘‘Sixth Report on International Liability for
Injurious Consequences Arising out of Acts not Prohibited by International Law,”
March 15, 1990, UN Doc. A/CN.4/428 (Article 2(b) and (e)), reproduced in Yearbook of the
ILC (1990), vol. II (Part One), p. 83, at pp. 88--89 and 105.
7
Article 25 of Responsibility of States for Internationally Wrongful Acts 2001: Necessity - 1. Necessity may not be
invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international
obligation of that State unless the act:
(a) is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
 Due to immediate threat and danger to the lives of the citizens and animals of

Arctos, the government had only way to safeguard their citizens, lives and

environment against the grave and imminent peril. Arctos was compelled to

the act under necessity because the Ranvicora does not cease its internationally

wrongful acts.

Issue 1.2.2: Principle of Self-Defence

Article 51 of the United Nation has confirmed the principle of self defence.

Article 21 of Responsibility of States for Internationally Wrongful Acts

2001The wrongfulness of an act of a State is precluded if the act constitutes a

lawful measure of self-defence taken in conformity with the Charter of the

United Nations. Principle 5 of CBD Ecosystem Approach: Ecosystem

functioning and resilience depends on a dynamic relationship within species,

among species and between species and their abiotic environment, as well as

the physical and chemical interactions within the environment. The

conservation and, where appropriate, restoration of these interactions and

processes is of greater significance for the long-term maintenance of biological

diversity than simply protection of species.8 Self-defense as an "inherent right"

makes its first appearance in an international treaty or world constitution with

the drafting of the Charter of the United Nations in 19459

Issue 1.2.2.1: Immediate threat:

(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the
international community as a whole.
8
Principle 5 of Guiding Principles of the CBD Ecosystem Approach.
9
Self-Defense in International Law Author(s): M. A. Weightman Source: Virginia Law Review, Vol. 37, No. 8 (Dec.,
1951), pp. 1109 Published by: Virginia Law Review
 The basic element of self-defence is immediate threat.10 There was

no prior knowledge of migration of grey bears to the Arctos and

the sudden encounter of people with these wild animals pose

immediate threat on them.

The defense must be "necessary."

a. The danger must be real and present. While a threat to life is not

sufficient provocation, the attack need not be con- summated to

give rise to legitimate self-defense; it need only be imminent.

b. There must be no available alternative to the use of force.

c. The defense must be in proportion to the danger run and must

cease when the danger ceases. When the attacker runs away, the

defender may not pursue and inflict injury.11

Issue 1.2.3: Principle of Countermeasures

Under Article 49, the injured state may take countermeasures against a state

which responsible for an internationally wrongful act in an order to induce that

state to comply with its obligation. Before taking countermeasures, under

article 4312 and Article 5213, the republic of Arctos had call upon the federal
10
Self-Defense in International Law Author(s): M. A. Weightman Source: Virginia Law Review, Vol. 37, No. 8 (Dec.,
1951), pp. 1099 Published by: Virginia Law Review

11
"La theorie de la legitime defense", 3 ACADEMIE DE DROIT INTERNATIONAL, RECUEIL DES COURS 691-860
(1934).
12
Article 43 :Notice of claim by an injured State
1. An injured State which invokes the responsibility of another State shall give notice of its claim to that State.
2. The injured State may specify in particular:
(a) the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing;
(b) what form reparation should take in accordance with the provisions of part two.
13
Article 52 of Responsibility of States for Internationally Wrongful Acts 2001
Conditions relating to resort to countermeasures
1. Before taking countermeasures, an injured State shall:
(a) call upon the responsible State, in accordance with article 43, to fulfil its obligations under part two;
(b) notify the responsible State of any decision to take countermeasures and offer to negotiate with that State.
 state of Ravicora through Diplomatic notes to cease its international wrongful

acts. Failure of the opponent state to respond and prevent Transboundary harm

and internationally wrongful acts, the injured state i.e. Arctos under article 51

take up proportional countermeasures. Under Article 2214, the wrongfulness of

an act of a State not in conformity with an international obligation towards

another State is precluded if and to the extent that the act constitutes a

countermeasure taken against the responsible state.

Issue 1.2.4: Exception of Distress

The act of Arctos of killing of Grey bear is protected under Article 24(1) of

International Law Commission, Responsibility of States for Internationally

Wrongful Acts 2001. The wrongfulness of an act of a State not in conformity

with an international obligation of that State is precluded if the author of the

act in question has no other reasonable way, in a situation of distress, of saving

the author’s life or the lives of other persons entrusted to the author’s care.

Issue 1.2.5: Saving Clause of Berne Convention:

Article 9 of Convention on the Conservation of European Wildlife and Natural

Habitats *Bern, 19.IX.1979:

(1) Each Contracting Party may make exceptions from the provisions of

Articles 4, 5, 6, 7 and from the prohibition of the use of the means mentioned

in Article 8 provided that there is no other satisfactory solution and that the

exception will not be detrimental to the survival of the population concerned:

2. Notwithstanding paragraph 1 (b), the injured State may take such urgent countermeasures as are necessary to
preserve its rights.
14
Article 22of Responsibility of States for Internationally Wrongful Acts 2001: Countermeasures in respect of an
internationally wrongful act - The wrongfulness of an act of a State not in conformity with an international
obligation towards another State is precluded if and to the extent that the act constitutes a countermeasure taken
against the latter State in accordance with chapter II of part three.
 – for the protection of flora and fauna;

– to prevent serious damage to crops, livestock, forests, fisheries, water and

other forms of property;

– in the interests of public health and safety, air safety or other overriding

public interests;

Issue 1.2.5: No violation of International Conventions:

Article 8 of Bern Convention :

Each Contracting Party may make exceptions from the provisions of Articles

4, 5, 6, 7 and from the prohibition of the use of the means mentioned in Article

8 provided that there is no other satisfactory solution and that the exception

will not be detrimental to the survival of the population concerned:

– to prevent serious damage to crops, livestock, forests, fisheries, water and

other forms of property;

– in the interests of public health and safety, air safety or other overriding

public interests;

Considering the exceptions of Berne convention and above arguments, Arctos

has not violated Article 1 and 8 of CBD, Article III of CMS and Article 1,2,6,

8 and 10 of the Bern Convention.

Issue 1.3: Arctos is not liable for conservation of Invasive alien species.

The Ranvicoran bears populationwere not known to have moved into any other country. 15

These grey bears historically migrated only within Ranvicora and had not lived in

Arctos.16 Infact, there are no historic or fossil records of grey bear presence in Arctos. 17

15
Record page 6, para 10.
16
Record page 7, para 12.
17
Record page 7, para 10.
Therefore, the land of Arctos has never been the Range state of these bears and therefore

the liability to conserve these bears does not fall on Arctos.