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 PHILIP C. JESSUP
INTERNATIONAL LAW
MOOT COURT
COMPETITION

o, STUDE INTERNATIONAL

00 -t Flo
xr SOCIETY'OF INTERN r 1014
CAN wo

1975 -1976
Library of Congress Catalog Card No. 80-85091
ISBN 0-89941-094;4

Printed in the United States of America

 PHILIP C. JESSUP
INTERNATIONAL LAW
MOOT COURT COMPETITION

INTRODUCTION
This compilation draws together in one place for the first time the Problems, Judges'
Briefs, Rules and leading written Memorials which comprise the PHILIP C. JESSUP
INTERNATIONAL LAW MOOT COURT COMPETITION, its aim to promote
international peace and understanding.

This work will enhance the law student's ability to grasp the practical side of the law
field by presenting award winning responses to hypothetical problems.

The competition began in 1960 with only Harvard, Yale and Columbia competing. The
early years involved domestic schools only, but as the number of foreign schools
increased, an International Division was created in 1972 along with a separate
International Award. Prior to 1972, the National Award was the only award
presented. Since the finalists in the national competition are judged for both their
written and oral performances, the need arose in 1973 for a "Rutgers Award"
signifying the best overall written memorial. Finally, in 1977 the National and
International winner competed for the 'Best Overall Memorial," selected to be
published in the ASILS International Law Journal.

In order to facilitate research, the individual awards are packaged for easy removal
from the binder. Title sheets for each package are color coded as follows:

Blue - National Award

Pink - International Award
Yellow - Rutgers Award
Green - Best Overall Memorial

Beginning with the 1979 Competition, the top three places for the National,
International, and Rutgers Awards have been included. The majority of the
memorials have not been retyped in order to maintain the original quality and
integrity submitted. Memorials which are unobtainable through the A.S.I.L.S.,
American Society of International Law, or the respective schools will be supplied at a
later date, if and when they become available.

Students wishing to enter the Jessup Competition in the future will find this work a
valuable reference tool to prepare themselves for the Competition.

The William S. Hein & Co., Inc. would like to thank the Association of Student
International Law Societies (A.S.I.L.S.), specifically Cynthia S. Huber and Louis E.
Emery, Charles A. Danna Fellow and Executive Secretary, for respectively, 1979-80
and 1980-81 for their cooperation in this endeavor. Additional thanks are extended to
the American Society of International Law (A.S.I.L.), and the many law schools
which aided us.

The William S. Hein & Co., Inc. sincerely believes this compendium will be a valuable
asset to your international collection.
 JESSUP COMPENDIUM PROLOGUE

This compilation represents the energy, both intellectual and physical, of

thousands of law students and professionals from around the world who have been
involved with the Philip C. Jessup International Law Moot Court Competition since
its inception in 1960. It is a compendium of the Jessup problems, winning memorials,
and where available judges' briefs, official rules plus the Competition results.
The Philip C. Jessup International Law Moot Court Competition is a moot court
exercise for students of international law. It began in 1960; the product of efforts by a
small number of highly motivated law students from three American law schools. At
first known only as the International Law Moot Court Competition, it was renamed in
1963 to recognize the notable accomplishments and contributions of Judge Philip C.
Jessup as an international legal practitioner, scholar, teacher, and member of the
International Court of Justice from 1961 until 1970.
The Competition requires teams of law students to research, draft and then orally
defend memorials responsive to the issues posed in a hypothetical problem. Each year
the problem is authored by a leading international scholar or practitioner on the topic
of timely and global significance.
The Jessup is currently separated into two divisions - the National and
International. From its beginning with three law schools participating, the National
Division has grown to involve over 120 law schools from across the United States.
Winners from each of the eleven regional competitions advance to the final rounds
held in Washington, D.C. each spring. Advancement is based upon the combined
scores obtained for both the written and oral segments of the competition. The
regional winners then compete to determine the National Division winner.
The International Division also began very slowly with the participation of a few
Canadian teams within the then soley domestic Jessup. In the late 60's and early 70's
the interest of foreign schools in the Jessup began to expand and with it came the
creation and growth of the International Division. To date over 70 law schools from 38
nations have participated in the Jessup. Each year the International Division
expands. The teams from this division also meet in Washington, D.C. for final rounds.
Some of the teams are selected via regional rounds similar to the ones held in the
U.S., with the winners advancing to Washington, while in the smaller nations a team
is chosen in a more individualized process.
The winners of the National and International Divisions then meet in a Jessup
Round to decide the winner of the Jessup Cup, i.e., the over-all winner of the
Competition. Awards are also given at the regional, National, International, and
Jessup Round levels for the Best Oralist. The best memorials from each domestic
regional are separately judged for the Rutgers Award, which is given to honor the
best memorial submitted in the National Jessup. This is done since the team
submitting the best memorial in each regional may not necessarily be the team which
advances to the finals because that is determined by both oral and written
performances.
There is also a best memorial prize for both the National and International Division
final rounds.
While there are many moot court competitions which take place each year, the
Jessup is truly unique. International in both purpose and scope, the Jessup is a
tremendous vehicle for the advancement of international peace and understanding.
This Compendium represents the elJitome of the written portion of the Jessup and
sets forth the winners of the various categories, but the true winners are all those
who have participated in the Jessup and the world which they will be the leaders of
tomorrow.
 ASSOCIATION OF STUDENT
INTERNATIONAL LAW SOCIETIES

The Association of Student International Law Societies is an unincorporated

association of member international law societies from 114 law schools across the U.S.
and the Carribean. Each year it cosponsors the Philip C. Jessup International Law
Moot Court Competition in conjunction with the American Society of International
Law. It'was begun in 1962 primarily as the umbrella organization to sponsor the
Jessup.
The Jessup was originally coordinated by a student who was one of the officers of
the ASILS. After the Society became a cosponsor of the Jessup, the first Fellow of
the Society was selected to do both research and administer the Jessup. The Fellow
acts as the Executive Secretary, i.e., chief administrative officer, of the ASILS as
well as the coordinator of the Jessup Competition. Originally it was the Henry Luce
Fellow, now the Charles A. Dana Fellow.
Each year a recent law graduate is selected to be the Fellow of the Society. This
compendium is largely the product of extensive efforts on the part of Messrs.
Kenneth Klein and Simon Langer, past Fellows and continuing supporters of both the
Jessup and ASILS.
The ASILS would like to thank Mr. William S. Hein, Jr., the publisher of this
Compendium, for the attention and interest he has shown to this project, and for his
belief that these materialsare as valuable a contribution to legal research as we feel
they are.
Washington, D.C.
September 30, 1980
Cynthia S. Huber
Louis E. Emery
Charles A. Dana Fellows,
Executive Secretaries, respectively
for 1970-80, and 1980-81

PAST EXECUTIVE SECRETARIES OF

THE ASILS AND ASIL FELLOWS*

1969-70 James A.R. Nafziger

1970-71 J. Robert Steelman
1971-72 Jay A. Burgess
1972-73 Carol Per Lee Plumb
1973-74 Judith R. Hall
1974-75 S. Jacob Scherr
1975-76 Kathrine H. Larson
1976-77 Kenneth Kline
1977-78 Ellen B. Behravesh
1978-79 Simon H. Langer
1979-80 Cynthia S. Huber
1980-81 Louis E. Emery

*Prior to this the Jessup was administered by one of the student officers of the ASILS.
 THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION

1975

The Peace River Basin Case,

New Helois v. Harma, 1975.

Best Written Memorial

National Award University of Texas School of Law #26

International Award University of Toronto #27

Rutgers Award Syracuse University College of Law #28*

University of Michigan Law School #29

* Memorial was not available through the ASILS, American Society of

International Law, or the respective school.
 Saturday, April 26, 1975, at 2:00 p.m.
THE PHILIP C. JESSUP INTERNATIONAL LAW
MOOT COURT COMPETITION
The Peace River Basin Case
NEW HELIOS V. KARMA
Judges of the Moot Court:
THE HONORABLE ARTHUR J. GOLDBERG, former Associate Justice of
the United States Supreme Court
PROFESSOR KAROL WOLFKE, University of Wroclaw (Poland); Fellow,
Woodrow Wilson International Center for Scholars
MR. ROBERT E. STEIN, Director of the North American Office of the
International Institute for Environment and Development
Finalists:
Cambridge University (U.K.) v. Georgetown University Law Center
KELVIN R. WmIows DAvID McI. WzumAs
PmLI, J. DAMx FRANCES A. BARNES
MARK R. STEvFv D. EDWARD WILSON, JR.
DInDO HARVi CLARK
Psm.m.E DuMoNr
Cambridge University was awarded the Jessup Championship Cup.
Kelvin R. Widdows was deemed the outstanding oralist, with Frances
A. Barnes as runner-up.
The Georgetown University Law Center was the winner of the National
(U.S.) Division Semifinals. University of California, Hastings College
of Law was second. University of Texas School of Law finished third
and won the award for Best Memorials. David Williams was named
best oralist in the division. The Rutgers Award for Best Memorials
in National Competition was shared by Syracuse University College of
Law and University of Michigan Law School.
In the International Division, Cambridge University (U.K.) won
first place; University of Toronto (Canada) was runner-up; University
of the Philippines College of Law was third; and Calcutta/Kerala
Universities (India) finished fourth. Jose Bascon Tomimbag of the Uni-
versity of the Philippines and Philip Dann of Cambridge were named
best oralists, and University of Toronto received the prize for Best
Memorials.
The semifinal teams were:
National International
Brooklyn Law School National University of Rosario
University of California, Hastings (Argentina)
College of Law University of Toronto (Canada)
Emory University. University of Havana
Georgetown University Law Center . (Cuba)-observers
University of Iowa College of Law Universit6 de Toulon-LaGarde
University of Oregon School of Law . '(France)
Syracuse University College of Law Calcutta and Kirala Universities
University of Texas School -ofLaw (India)
Vanderbilt University College of Law Ahmadu Bello University
(Nigeria)
University of Papua (New Guinea)
University of the Philippines
College of Law
University of Singapore
Cambridge University (U.K.)
University of Zambia School of Law

"As reported in the Proceedings of the American Society of

International Law, 1962 to 1980; reprinted by permission."
THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION

1975

The Peace River Basin Case,

New Helois v. Karma, 1975.

Problem
 INTERNATIONAL COURT OF JUSTICE

REPORTS OF JUDGMENTS,
ADVISORY OPINIONS AND ORDERS

THE PEACE RIVER BASIN CASE

(NEW IELLIOS v. KARMA)

MERITS

JUDGMENT OF 26 APRIL 1975

COUR INTERNATIONALE DE JUSTICE

RECUEIL DES ARRETS,

AVIS CONSULTATIFS ET ORDONNANCES

AFFAI2.r. DU D131AS - rn 7 4L
LA PAI
(NEW HELIOS r. KARMA)

FOND

At'HRf.T DU 26 AVRIL 1975

 THE 3.975 JESSUl PROBLEM

Each year the focus of the Competition is upon a

hypothetical case before the International Court of Justice.
Drafted by Mr. Robert E. Stein, this year's Problem concerns
the law of international drainage basins as well as interna-
tional environmental law. It raises complex questions as to
the responsibility of a State for its own activities or pri-
vate activities within its jurisdiction which cause injury to
the environment of a neighboring State.

A statement of the Problem follows:

The Peace River'Basin consists of the Upper Peace River,

International Lake, and the Lower Peace Pver. The Upper
Peace rises in the State of Karm.a and is within its boundaries
until it flows into the International Lake, which is 20 miles
long and 10 miles wide at its broadest Voint. The International
Lake forms the north-south boundary between Karma and the State
of New Helios. The Lake empties into the Lower Peace River
which then wholly enters Karma until it empties into the ocean.
(See map on the next page.)

The capital of New Helios, a highly industrialized nation

enjoying a high standard of living, is loated on the Lcwer
Peace side of the Internat c - Lakae just before it enters the
Lower Peace River. The capital of Karma is located 50 miles
south of the Lake. Karma, although still relatively pbor, and
primarily agricultural, has exuerienced since 1960 rapid econo-
mic growth, much of which is attributable to the opening up of
the rich mineral deposits and forest lands of its Wilderness
Region, located north of the Upper Peace. %
In 1923, Karma and Newr Helios entered into a Treaty of
Amity, Friendship, and Economic Cooperation. This treaty
provides that neither State shall pollute boundary waters so
as tm injure health or property in the other State. Other
provisions include the obligations to coopera!, consult, and
enter into-specific arrangements-as appropriate.'.n matters of
mutual interest. Karma and New.-Helios, both UI.N. membe:s,have
enjoyed friendly relations for many years; although from time
to time, disputes have developed between them.
The present dispute involves injury to New Helios
resulting from the pollution of the Peace River basin by a
privately-owned paper and pulp mill and a government nuccar
power plant in Karna. Them ill, constructed on the Unper Peace
in 1965 'on the advice of an interaovernmental organization,
the orld Development Authority (WIA), created thou-,ands of
new jobs for the previously impoverished people of the Wilder-
ness Region. These workerS and their families now live in a
 °
o

AM= A
•
e
Wilderness Region

N E W

K E L 0i S

Capital

3r Peace
Brewery

Power
K A R MA

10 miles South
to Capital of Karma
shanty town of some 23,000 people which surrounds the mill
coWIp.lUX.

In spite of WDA's reconmendations, the mill company has

failed to con3truct facilities for the treatment of wastes
from the mill or sewage from the town or to fulfill its
p.ovise to build mc ea'n !.ol-iny for its workers, which woild
alleviate the sew¢a prcbl m. As a result, the water quality
of the Lake has bean di-:inished to such an e;tent that these
waters are no longer fit for human consumption. In addition,
the beaches around the capital of New Helios were closed in
1970 when an increase in typhoid was reported.
Both the State of New Helios and the Lower Peace Brewery,
for over thirty years one of Now Helios's most successful
industries relying on the waters of the basin, have already
installed sophisticated purification facilities at considerable
costs. If no remedial actions are taken by the mill, New Helios
will be forced to eymend a documonted $2,000,000 for further
purification of the waters of the Lake, while the brewery may
be forced to seek a new source of water, at an increased cost,
to assure the quality and taste of its celebrated beers.

In 1970, without notification to New Helios, Karma began

the construction of a ituclear plant at the source of the Lower
Peace River to meet the growing energy demands of industrial
users in its capital and th call for the dev.eo.ment of a
fertilizer production czDa' ility. The plant, with its equip-
ment and fuel supplied by a third nation under strict interna-
tional safeguards, uses as a coolant for its reactors the
waters of the Lower Peace, which are then emptied back into
the river. The plant opened at 10V of its total capacity in
May of 1974.
As early as 1970, the citizens of New Helios protested
to their government about the construction of the plant,
claiming that it would ruin their recreational uses of the
Lower Peace. Also objecting strenuously to the plant was the
management of the Lower Peace Brewery which reguires cool,clear
water in producing beer. If the plant becomes fully opera-
tional, the brewery will be forced to install cooling lagoons
at a documented cost of $900,000 or to find a new supply of
water.

In response, the government of New Helios has protested

to Kar...a against the lccat.ion and construction of the plant.
Karma has alwavs r'.oled that it has the soverign right to
work for the de elo.:.!.ont of its nation in any way possible.

In July, 1974, N.w Helios submitted a formal letter of

protest demanding an end to t-.c pollution of the Peace River
bsin by the r-;l cor"1ex-tnwn and the nuclear Dlant as
ccItrary to the 1923 treaty and general principles of inter-
national law. Karma responded with a statement that none of
thj actions secified in the New Helios letter of protest
constituted a violation of the 1923 Treaty and that its
activities and those of its citizehs are consistent with

The failure to settle the dispute led to increased ten-

sions in both States with citizens and business groups
threatening and lobbying for retalitory boycotts. Recognizing
that a dangerous situation had arisen, Karma and New Helios
agreed first to arbitration and then later to submit the con-
troversy to.the International Court of Justice, pursuant to
Article IV of the 1923 Treaty. Both waiving the defense of
the local remedies rule Karma, as Respondent, and New Helios,
as Applicant, submitted to the Court the following questions:
1. Whether Karma is responsible for the harm which
has been or may be inflicted upon the environment
of New Helios under
a) the 1923 Treaty or
b) general principles of international law?
2. Mhat relief, if any, should be available to New Helios?
The Court agreed to the reauest of Karma and New He!;o
that the case be heard by a three-member Cha-ber of Court; and
such a Chambcr was constituted in accordance with the statute
and Rules of the Court.
THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION

1975

Memorandum for Judges

 1975 PHILIP C. JESSUP INTERNATIONAL LAW
MOOT COURT COMPETITION

MEMORANDUM FOR JUDGES

This memorandum has been specially prepared for judges,

with a view to summarize the issues raised in the prob-
lem. UNDER NO CIRCUMSTANCES IS IT TO BE SHOWN TO CON-
TESTANTS. Regional Administrators are urged to use ut-
most discretion in keeping this memorandum from the eyes
of students.

Association of Student International Law Societies

American Society of International Law
2223 Massachusetts Avenue, N.W.
Washington, D. C. 20008
 1975 Jessup C6mpetitLo..-- -

-SpeCial Memorandum for Judges

I. Overview of the 1975 Problem

The focus of the 1975 Jessup Problem is upon the recurrent

disputes over transnational pollution. It is often said that
pollution knows no national boundaries; and with the transfron-
tier movement of pollutants from a source in one nation so as to
injure individuals and property in a neighboring state, the fol-
lowing primary international legal issue is raised: What is *the
responsibility of a State (here, Karma), for activities (both pub-
lic and private) in its territory which cause injury to the en-
vironment of its neighbor (here, New Helios)?

Only recently with the growing worldwide concern with the

environment, has the above question received much attention. As
a result, the international norms governing transfrontier Dollu-
tion are still in an embryonic stage. Thus, mach of the argument
generated by this Problem willinvolve the nature and extent, un-
der existing international law, of a nation's obligation to re-
frain from, prevent, or give prior consultation on existing or
possible sources of transnational enironmental'injury.

In addition to the emerging body of international law and

customary river law, the parties to this dispute are bound by the
terms of the 1923 Treaty (Annex B which regulates,, in a rudimen-
tary way, the use of the Upper Peace-International Lake-Lower
Peace drainage basin. The rather general language of the Treaty'
will provide ample opportunity for arguments over textual inter-
pretation, while Karma will undoubtedly attempt to avoid any ob-
ligation under the treaty with assertiqns of .rebus sic stantibus
or changed circumstances.

An undercurrent of this year's Problem is the constant con-

flict between the "have" and "have-not" nations. Karma, a devel-
oping nation, will understandably emphasize its severe need for
economic growth and industrial development. To counter, New
Helios will assert the desire for environmental preservation and
the plight of innocent victims of pollution.
 - 2 -

What follows is not a case-book solution. iT

r-yar'sProb-
lem raises a number-of difficult, unresolved questions of int_-
national law, and judges should look for well-reasoned, documented,
and creative arguments. Judges should not consider the substan-
tive merit of the disputants' submissions, but only the quality of
their presentation.

If you wish to do further research, please consult the at-

tached bibliography.

II.- Some Thoughts on the Issues

Issue 1 - Whether Karma's failure to prevent the dumping of

effluents and sewage from the paper mill and town into the Upper
Peace River constitutes a breach of her international obligations?

A. 1923 Treaty, Article II, para. I: "... neither State

shall pollute boundary waters or other waters running between them
so as to injure the health or property in the other State."

New Helios will argue for an interpretation of these words,

which are similar to that of Article IV of the 1909 U.S.-Canadian
Convention Concerning Boundary Waters, "in accordance with their
ordinary meaning" and "in light of [the treaty's] object and pur-
pose." See Vienna Convention on the Law of Treaties, Article 31
(1). Since there is no mention of the source of the pollution,
New Helios will assert that the treaty applies to any public or
private activity harming these "boundary waters" no matter its lot-
cation. Unless the Treaty is held to apply to the entire drainage
basin, the object of the Treaty would be rendered meaningless.

' Although the pollution is a re sult of wholly private activi-

ties, the State of Karma may still be in breach of its treaty ob-
ligations under the concept of "attribution." There is still con-
troversy over this question, but it is generally agreed that a
State must, at a minimum, take reasonable measures to prevent its
citizens from undertaking activities which violate that State's
obligations. There is some authority (see Sohn & Baxter, Draft
Treaty on State Responsibility for Injury to Aliens) for the exis-
tence of absolute liability where a treaty commitment is involved.
Given the inaction of Karma as to the-pollution emanating from
the mill-town-, the standard chosen is not decisive, since a good
argument can be made that'Karma was clearly negligent in her
failure to.fulfill her international obligations.

Thus, New Helios will submit that Karma has failed to per-
form its Treaty obligations "in good faith" and in violation of
the well-accepted maxim pacta sund servanda.

Karma will respond to these arguments by attempting to di-

vert the attention of the Court away from the words of the Treaty
.to the course of events thereafter, particularly:

1. New Helios's unreasonably long delay in protesting

against the pollution of the Upper Peace.

2. The willingness of New Helios to install the.water

purification facilities necessary 1o preserve the quality of its
drinking water.

3. The tremendous growth and-development of Karma's

economy.

The first two items lend support for an argument by Karma

that New Helios has acquiesced to the pollution or, by its inac-
tion, permits a less strict interpretation of the Article II
prohibition.

Relying essentially on Item 3, Karma will assert that this

50-year-old treaty clause is no longer binding under the doctrine
of rebus sic stantibus, that is, that a treaty ceases to be bind-
ing when the basic conditions upon which it was founded have es-
sentially changed. Karma will cite the dramatic change in tech-
nology and-its own dramatic economic growth as conditions which
make it unduly burdensome to preserve the prior rather pristine
condition of the lake.

B. 'Customary Internatfonal Environmental Law

State practice in this area is rather limited, and counsel

for New Helios will be hard pressed to show the existence'of a
generally accepted norm of international law barring transfron-
tier pollution. New Helios should be expected to rely on the
following:

l.- Principle 21 of the Stockholm'Declaration: "States

have, in accordance with the Charter of the UN and the principles
of international law .... the responsibility to ensure that acti-
vities within their jurisdiction and control do not cause damage
to the environment of other States ... " (See Documents Aoendix)

2. Trail Smelter Arbitration Between the U.S. and Canada

(1938): "Under principles of international law, as well as the
law of the U.S., no State has the right to use or permit the use
of its territory in such a manner as to cause injury by fumes in
or to the territory of another or the propertie.s or persons there-
in, where the case is of serious consequence and the injury is es-
tablished by clear and convincing evidence."

* New Helios would argue that these two statements are evidence-
of a generally accepted specific obligation to prevent transfron-
tier pollution. Additional support for this proposition may be
found in the writings of the "most highly qualified publicists,"
including Eagleton.

Karma will counter with arguments that international law has

not evolved so as to include such a prohibition. Although adopted
by the Stockholm Conference and affirmed by the U.N. General As-
sembly, the Declaration is not a binding legal document. As to
the Trail Smelter decision, a number of serious objections have
been raised:

a. Canada had already accepted liability by the terms of

the arbitral Convention. Thus, the above statement is technically
dictum.

b. This Convention directed the-.Tribunal to use U.S. Su-

preme Court precedents, which it did so apply, stating, with no
discussion, that.American law on water and air pollution was in
conformity with international law.*-

c. The Tribunal misinterpreted the decisions it applied.

 . - 5 -

C. Customary River Law

l Perhaps the most important codification of existing customary
law regarding riverways is the Helsinki Rules, adopted'in 1966 by*
the International Law Association, which is a private organization
.composed of legal scholars from primarily developed nations.

Judges should examine carefully the excerpts from the Hel-

sinki Rules to be found in the Documents Apoendix. Of particular
importance is Article V which sets out the various criteria to be
considered in deciding whether a State is exceeding its "equitable
share" of the resources of an international drainage basin. Essen-
tially, these principles require a balancing of the "benefit of
the activity" v. "injury inflicted."

Karma might take a hard line by asserting what is known gen-

erally as the Harmon Doctrine -- that is a claim of an absolute
right to use the waters within a State's territory, without any
recognition of claims made by co-riparians. The Harmon Doctrin'e,
although it continues to crop up in river disputes (Indus River,
Columbia River) has generally been considered as obsolete. Fur-
thermore, the doctrine is inconsistent with Karma's.obligations
under the 1923 Treaty.

D. General Principles of Law Recognized by Civilized Na-

tions

New Helios may argue that the pollution of the Upper Peace
constitutes an"'abuse of rights" by Karma. It is generally recog-
nized that there are limits, under international law, to the exer-
cise of sovereign rights by a State. Depending upon the facts pf
the particular situation, the exercise of such rights may be so
unreasonable and reprehensible so as to make such exercise con-
trary to international law.

One expression of this concept of "abuse of rights" is the

Roman doctrine of sic utere tuo ut a lienum (use thine own so
thou dost no harm to another). The Corfu Channel case (ICJ, 1949)
has been called the premier example of the use of sic utere in in-
ternational adjucation. In that case, the Court recognized "every
State's obligation not to allow knowingly its territory to be used
contrary to the rights of others."

Issue 2: Whether Karma's failure to consult with New Helios

concerning the location and construction of the nuclear plant con-
stitutes a violation of international law?
 -6-

New Helios will argue that the source of this duty to consult
may be found in the 1923 Treaty under -Article I and Article II,
para. 2. Under Article I, Karma and New Helios "agreed to co-
dperate and consult" with -one another as appropriate on matters of
mutual interest. Pursuant to Article II, para. 2, these States
*agreed that, in furtherance of their responsibility not to pollute
'the boundary waters, "the parties undertake to enter into specific
arrangements as appropriate."

New Helios will argue that Karma's failure to notify her of

the plans for the construction of the plant is a flagrant viola-
tion of Karma's clear treaty obligations. Karma wtrill respond with
factual arguments to show that the plant, w:rhich is necessary to
meet the growing demand for electrical energy in Karma's expanding
economy, is not a matter of "mutual interest." Further, Karma
will argue that on such a matter of high national importance, bi-
lateral arrangements and consultation would not be "appropriate,"
as such recuirements would only serve to unreasonably delay and
perhaps retard its economic development.
New Helios might attempt to bolster its position by showing
the obligation to consult as generally accepted within interna-
tional law and consistent with Karma's obligation under the U.,.
Chart er.

As evidence of this obligation, New° Helios will rely. on U.N.

General Assembly Resolution 2995 (1972) which is appended to thi s
memorandum. New Helios will dite Karma's failure to provide any
"technical data"_ or o make any attempt to cooperate with New
Helios on the question of the nuclear plant. Karma w-ill empha-
size the provisions of paragraph 3 of the Resolution which state
that the requirement of information exchange should not be "con-
strued as enabling each State to delay the prograsmmes and projects
of expl.oration, exploitation, and develcpment of. the natural re-
sources of the States in whose territory such programmes and proj-
ects are carried out."

Karma might also argue that U.N. Resolutions are not binding
under international.law, despite the fact that this particular
resolution-was adopted by a vote of ll4 vQtes to 0, with 10 ab-
stentions. New Helios will assert, however, that this vote is in-
dicative of a general acceptance of the obligation to consult.
New Helios , in furtherance of this argument, will cite the quasi-
legislative function of the General Assembly where a "legal vacu-
um" exists, a position advanced by a number of publicists.
Other support for the existence of the obligation to consult
is the Helsinki Rules,- Article XXIX, para. 1 and 2 (see Documents
Appendix) and the Lac Lanoux Arbitration. In La .. Lanoux, which
involved a dispute over river diversion between France and Spain,
 - 7

power" in the
the duty to consult was characterized not as a "veto on
State, but rather as an obligation
hands of the lower riparian
the part of the upper riparian State to take into consideration,
in a reasonable manner, the interests of the ,Ioanstream State in a
proposed project.

Issue 3: What relief, if any, is available to New Helios?

that the obligation to make rrin arises

The principle
of an internation- l engatement is 1e
l-- t Iblished
from the breach
in international law. In the Chc-zo: Factory case, the ?ernanent
Court stated:

. reparation must, as far as possible, wipe out all

the conseuences of the ile-al act and re-establish
the situation hich would, in all
.. probability, have
exis-ted .if the act had not been committed."

New Helios might, thus, request the follo-wing forms of repar-

ation:

A. Co? en5 a-, on. As to the injury already ncurred due to

-
the o,:era .. '-.n of ;ne mill-towne e l o s o..:ou, 1d ar.- ue, citJn the
-
Kar a has cino oblliation to cay comilen-
Chorzow F.ct cr. case, that
sazien for materia± damages suffered by N.ew Helios and its citizens.

B. Jdent.
Telarator- As to future damages arising from
the paper mLlan_ o-n, H.e-
eos w:vill ask the Court to declare
these _ollui on =-r'tng activities unlawful to the extent of
their ex-ected extraterritorial inm.act. Karma miz-ht ar-ue that
such a jud.-:ent fixin.g- legal rights is inazropriate, since there
has been no serious injury (this is true of the nuclear plant) and
such a decision leaves no room for reasonable compromise.

C. Injunctive Relief. New Hellos should argue that monetary

compensation is an inadeouate remedy as to the future injury re-
sulting from the mill-to'n and-tho projected full oera- _on of the
nuclear plant. Thus, New should rcquest that the Court de-
_ Karma take meeasures
clarz that to provent further pollution of .the
river system by the mill-Ltown and that Karma should not operate
the nuclear plant beyond its present capacity.

Now Helios wil]. argue that such relief is a -forni of satisfac-

tion, consistent with international law as evidenced by the avail-
 - 8-

ability of equitable remedies in many States (thus, a general

principle of law recognized by civilized nations) and the teach-
ings of publicists (i.e., Schwarzenberger).

Since this remedy is equitable in nature, counsel for Karma

might be expected to argue that the relief requested as to the n-
clear plant would be unduly burdensome in relation to the future
anticipated injury to New Helios.

D. Negotiations. Pursuant to the recently decided Fisher'eS

JurisdictI.ron Cases (U.K. v. Iceland, W. Germany v. Iceland), .
Helios might request that the Court declare both states "under
tual obligations to undertake negotiations in good faith for the
equitable solution of their differences" concerning tle utiliza-
tion of their shared water resources, and that the Parties take
into account in these negotiations the Court's declarations in
this particular case on the future regime for" the river system
i.e., endorsement of the doctrine of equitable utilization).
 Selected Bibliography fqr Judges

of the

1975 Jessup International Law Moot Court Competition

Books

1. BARROS & JOHNSTON, THE INTERNATIONAL LAW OF POLLUTION (1974)

2. GARRETSON, HAYTON & OLMSTEAD (ed.), THE LAW OF INTERNATIONAL

DRAINAGE BASINS (1967)

3. J.L. HARGROVE (ed.), LAW, INSTITUTIONS, AND THE GLOBAL ENVI--

RONMENT (1972)

4. TECLAFF & UTTON (ed.), INTERNATIONAL ENIRONKENTAL LAW (1974)

- reprinted from 13 NATURAL RESOURCES J. (April '73)

Articles

1. C.B. Bourne, International Law and Pollution'of International

Rivers and Lakes, 6 U. BRIT. COLUMBIA L. R. 115 (1971)

2. Laylin & Bianchi, The Role of Adjudication in International

River Disputes: The Lake Lanoux Cdse, 53 AM.* J. INTIL. L. 30
(1959)

3. -Sohn, The Stockholm Declaration on the Human Environment,

14 HARV. INTL. L. J. 423 (1973)
 1975 Phiiip C. Jessup Internaticnal Law

Moot Court Competition

DOCUMENTS FOR ORAL JUDGES

These materials have beer specifically prepared for judges

and may be used for refev'ence during oral arguments.
UNDER N O CIRCUMSTANCES IS IT TO BE SHOW,, 1O COMPETITORS.

INDEX

A. 1923 Treaty - New Helios & Karma ........ Reverse

B. Vienna Convention on the Law of Treaties p. 1
(Excerpts)

C. Stockholm Declaraticn (Excerpts) ....... .p. 2

D. Helsinki Rules (Excerpts) ... ......... p. 4

E. U.N.G.A. Resolutions 2995 &2996 . ...... .. p. 6

 ANNEX B

1923 Treaty of Amity, Friendship, and Economic Cooperation

ARTICLE I

In order to carry out the purposes and objectives of this

Agreement, the States of Karma and New Helios agree to
cooperate and consult with one another as appropriate
on matters of mutual interest.

ARTICLE II

Paragraph 1. Both States agree that in keeping with the

general aim of amity, friendship and economic cooperation,
neither State shall pollute boundary waters or other
waters running between them so as to injure the health
or property in the. other State.

Paragraph 2. In furtherance of this responsibility the

parties undertake to enter into specific arrangements
as appropriate.

ARTICLE III

The Lower Peace River shall be open to the ships of both

States, and navigation shall not be impeded or unreasonable
conditions placed thereon, unless a situation arises in
which either State, upon notification to the other, be-
lieves that health and safety require the imposition of
such conditions.

ARTICLE IV

Paragraph 1. Disputes between the two States shall be

settled amicably and equitably with full regard to the
purposes and principles set forth in this Agreement.

Paragraph 2. Upon the request of either State, both

States agree that questions arising under this Agree-
ment which have not been settled within a reasonable time
may be brought to arbitration, each State choosing one
arbitrator and the remaining arbitrator to be agreed
between them or, if agreement is not reached within a
period of six months from the date of the selection of
the two other arbitrators, such third arbitrator shall be
selected by the President of the Permanent Court of
International Justice.

Paragraph 3. At the time a request for arbitration is

made, or at any time before the arbitration commences,
either State may request that the dispute be submitted to
the Permanent Court of International Justice or to a special
chamber of that Court. The agreemeit of the other State
shall first be obtained before submission is made to the
Court.
 VIENNA CONVENTION ON THE LAW OF TREATIES
Vienna Convention on the Law of Treaties.
. Done at Vienna, on 23 May
1969
SECTION 3. INTEiPRETATION OF TREATIES
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall com-
prise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was'made between all the
parties in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion
with the conclusion of the treaty and accepted by the other parties as an
instrument related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the inter-
pretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which estab-
lishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations be-
tween the parties.
4. A special meaning shall be given to a term if it is established that the
parties so intended.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the application of article 3 1, or
to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or. unreasonable.
Article 62
Fundamentalchange of circumstances
1. A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not
foreseen by the Parties, may not be invoked as a ground for terminating or
withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of
the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obli-
gations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground
for terminating or withdrawing from a treaty:
(a) . if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty or of any other inter-
national obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a
treaty it may also invoke the change as a ground for suspending the operation
of the treaty.
SECTION 4. PROCEDURE
Article 65
Procedure to be followed with respect to invalidity, termination,
it'ithdrawalfrom or suspension of the operation of a treaty
1. A party which, under the provisions of the present Convention, invokes
either a defect in its consent to be bound by a treaty or a ground for
impeaching the validity of a treaty; terminating it, withdrawing from it or
suspending its operation, must notify the other parties of its claim. The noti-
fication shall indicate the measure proposed to be taken with respect to the
treaty and the reasons therefor.
 ATIONS COIFERENCE ON THE RUNAN ENVIROMENT
DECLARf TION OF TIM UlTED ITI

Principle S

Economic and social development is esential for- ensuring a favourable living

and wbrhi. eaviro':,snt for nan and for creating conditions on earth that are
necessary for the improvement of the quality of life.

Princi~1e9
E1viron-mental deficiencies generated by the conditions of underdevelo.ent
and natural cisasters pose grave problems and can 'best be remedied by accelerated
development throu.gh the transfer of substantial quantities of financial nd
technologaical assistance as a supplement to the domestic effort of the developing
contries and such timely assistance as may be required.

Princpiple '10
For the developing .cotutries, stability of prices and adequate earniDgs for
primary ccodities and rar material are essential to environmental men~aament since
econoTic factors as well as ecological processes must be taken into account.
Principle 11

The environmental nolicies of all States should enh--nce and not adversely affect
the present or futu-e development potential of developing countries, nor should
they hamper the attainment of better living conditions for all, and appropriate steis
should be taken by States and international organizations witl a view to reachtu
agreement on reet.g the possible national and international economic consequances
resulting from the application of environmental measures.

Principle 12

Resources should be made available to preserve and improve the enviroz-ent,

takinig into account the circumstances and particular requirements of developing
countries and any costs w.ehich may emanate from their incorporating environmental
safeguards into their development planning and the need forf making available
to them, upon their request,. additional international teclnical and financial
assistance for this purpose.

Principle 13

In order to achieve a more rational management of -resources and thus to improve

the environment, States should adopt an integrated and co-ordinated approach to
their development planrLing so as to ensure that development is compatible ith the
need to protect and improve the human enviroment for the benefit .of their populatiu,
 • •Inciple 21
States have, in accor'dafice 1ith the
of ,..ftcational lavy, the sovereitii r'igt Charter of the United Tations and' tjhe prdiioiplco
to eiploit their own resourcee j,"r.c-scut to
on env--ron0ental~j3icies and 'the responsibility th.i.
ihei' to ensure that -aotivitieswithi
u.riadictjon ox cont-rol do riot Cause da iage
to the enviro-ent of otie, States
or of areas beyond the ).inits of national juiisdictibn.
. .. , :-:-
S.. Pri.cile:22
Statos shall co-operate to develop fu'ther-
liability and compensation for the vicijms the ziuternatioa l]6 rz.rdin
of pollution and othcr environm-.antal . -
caused by activities v "ihi
tELs"jvji'dLcUion or control of such States
to areas beycnd
their jurtsdiction.

- Prici]2Le 2 -

Without prejudice-. to such. criteria as

communIty, or to standa-ds which will have my.-.be agreed, upon .by. the intexaiational
essential in all 6ases to consider the systems to be detez-_ined nationally, it will be
of
aiid the extent of the applicability of standards values prevailinG in each count.-x,
countries but which may be inappropriate and which are valid for the most advan:cd
of unwarranted so-ial cost for the
developing countries.
 HELSINKI RULES
ON TIM.

USES OF THE WATERS OF INTERNATIONAL

RIVERS
RESOLUTION

EQUITAILE UTIIZATION OF. TJ E WATERS OF AN

INTERNATIONAL DRIAM AGE BASIN

Article ET
Each basin State is entitled, vdthin its territory, to a reasonable
and equitable share in the beneficial uses of the waters of an inter-
national dhainage basin.

Comnint. :
(a) GrYERAL. This Article reflects the key principle of inter-
national law in this area that every basin State in an international
drainage basin has the right to the reasonable use of the waters of
the drainage basin. It rejects the unlimited sovereignty position,
exemplified by the " Harmon Doctrine", which has been cited.
as supporting the proposition that a State has the unqualified
right to utilise and dispose of the waters of an international river
flowing through its territory ; such a position imports its logical
corollary, that a State has no right to demand continued .f4.w
from co-basin States.

Article V
(1) What is a reasonable and equitable share within the mean-
r
tug of Article I is to be determaincd in the light of all the relevant
factors in each particular ease.
(2) Relevant factors which are to be considered include, but
are not limited to :
(a) the geography of the basin, including in particular the
extent of the drainage area in the territory of each basin
State ;
(b) the hydrology of the basin, including in particular the
contribution of water by each basin State;
(c) the climate at ecting the basin
(d) the past utilization of the waters of the basin, including in
particular existing utilization ;
(e) the economic and social needs'of each basin State;
(1) the population dependent on the waters of the basin in
each basin State ;
(g) the comparative costs of alternative means of satisfying
the economic and social needs of each basin State;
(h) the availability of other resources :
(i), the avoidance of unnecessary waste in the utilization of
waters of the basin;
(j) the practicability of compensation to one or more of the
co-basin States as a means of adjusting conflicts among
uses ; and
(k) the degree to which the needs of a basin State may be
satisfied, without causing substantial injury to a co-basin
State ;
(3) The weight to be given to each factor is to be determined by
its importance in comparison with that of other relevant factors. In
determining what is a reasonable and equitable share, all relevant
factors are to be considered together and a conclusion reached on the
basis of the whole.
 Article VI 5
A use or category of uses is not entitled to any inherent prefer-
ence over any other use or category of uses.

Article X
1. Consistent with the principle of equitable utilization of the
waters of an international drainage basin, a State
(a) must prevent any new form of water pollution or any
increase in the degree of existing water pollution in an
international draiuage basin which would cause substazi-
tial injury in the terriory of a co-basin State, and
(b) should take all reasonable measures to abate existing
water pollution in an international drainage basin to
such an extent that no sull..ta:tial damage is caused in
the territory of a co-basin State.
2. The rule stated in paragraph I of this Article applies to
water pollution originating:
(a) within a territory of the State, or
(b) outside the territory of the State, if it is caused by the
State's conduct.

Co,,zienz
(a) GENERAL
Itternational law imposes general limitations upon action
that one State may take which would cause injury in the territor-y
of aiother State. In the Corfu Channel Case, the International
Court of justice stated that international law obliges-every State
" not to allow knowingly its territory to be used for acts contrary
to the rights of other States ". 1949i I.C.J. Rep. 4, 22. The Secr -
tarv-General of the United -Nations has expressed the view that
" There has been general recognition of the rule that a State must
not permit the use of its territory for purposes injurious to the
interest of other States in a manner contrary to international
latw". LSurvey of International Law 34 (U.,N. Doc. A/CN.4/1
Re'. 1) (1949).] This statement is no more than a reflection of the
priuciple sic lttre taoitali'ttam non lacdas--" one must so use his
own -s not to do injury to another ". The same general thread of
principle runs throughout the range of State-to-State relationships.
As to the law of water pollution, recently this general principle
was favourably referred to in the Like Lanox Arbitration between
France and Spain, [24 Int'l. L. Rep. 10t,123 (1957).] In discussing
the division of waters of Lake Lanoux and possible bases of France's
reilonsibility, the Tribunal stated : " It 'could have beerr argued
that the works would bring about a definite pollution of- the waters
of the Canal or that the returned waters would have a chemical'
coZiposition or a temperature or some other characteristic which
coild injure Spanish interests."

Artible XI . .
1. In the case of a violation of the rule stated in paragraph
1(a) of Article X of this Chapter, the State responsible shall be required
to cease the wrongful conduct and comrensftte the injured co-basin
Slate for the iniury that has been caused to it.
2. Iu a case falling under tie rule stated in paragraph 1(b) of
'Article X, if a State fails to take reasonable measures, it shall be
required promptly to enter into negofiations with the injured State
with a view toward reaching a settlement equitable under the circum-
stances.
 Article XX. •
1. With a view to 1,reventiug disputes from arising between
basin Lctates as to their lcgal rights or other'int2rcst, it is recom-
mended that each basin S.-te furnish relevant and reasonibly avail-
able infonation to the ofier basin States eoncernin the waters of a
draiuage basin within its ternitory and its use of, and activities with
respec'. to such waters.
2. A Siate, regardle.s'of its locatiou in a drainn'a basin, should
in particu!ar furnish to ny other basin ,!ate, the interests o1 which
may bhasub.tantially aif, tcd, notiec of %uypropose.( constuejiou or
inst".ffl-aion which woulI alter the regime of the bi.in in a way wieh
might givc ri:-e to a di:state as defined hi. Artcle X.V:. The notice
should ineludie such ecscnltial facts.as will permit the recipient to
make an asessnent of the probable eficet of the proposed altcration.
3. A State providing the notice reerre4 to in paragraph 2 of this
Article should aMford to the recipient a reazonable ]iri.ol of tinie to
make an assessmeut of the probable effect of,lhe proposed construct ion
or installation and to submit its views thereon to the '.ae farnishhg
the notice.
4. If a State has failed to give the nlotie referrcd to in Paragraph
I of this Artic!e, the alteration by the Ztafe in the regime of the drain-
age basin shall not be given the weight normally accorlh' to temporal
priority in use in the event- of a determination of what is a reasonable
and cquitable slire of the waters of the basin.

2995 (XXVII). Co-opertion-ibetwceii Stales in

,, the field of :li environment

The General Assembly,

Having considered principle 20 as contained in the
draft text of a pre.umble and principles of the declara- UN
tion on the humian environment. :' referred to it for GENERAL ASSEBLY
consideration by the United Nations Conference on the RESOLUTI :':S
Human Environment, 2995 & 2996
Recalling i.s tesolution 2849 (XXVI) of 20 De-
cember 1971 entitled "Development and environment",
Bearing in mmid that, in exercising their sovereignty
over their natural resources, States must seek, througi
effective bilateral and multilateral co-opcration or
through regional machinery, to preserve and improve
the environment,
1. Emphasizes that, in the exploration, exploitation
and development of their natural resources, States must
not produce sigificant harmful effects in zones situated
outside their national jurisdiction;
2. Recognizes that co-oper'ation between States in
the field of the environment, including co-operation
towards the huplementation of principles 21 and 22 2996 (XXv)lI). Internalional responsibility of
of the Declaration of the United Nations Conference States in regard to the environment
on the Human Environment 4 0 will be effectively
achieved if official and public knowledge is pro idec
of the technical data relating to the work to be carried The General Asscnibly,
out by States within their national jurisdiction, with a Recalling principles 21 arid 22 of the Declaration
view to avoiding significant harm that may occur in of the" United Nations Conference on the Human
the environment of the adjacent area; Environment-" concerning the international responsi-
3. Furtherrecognizes that the technical data referred bility of States in regard to the environment,
to in paragraph 2 above will be given and received in Bearing in nind that those principles lay down the
the best spirit of co-oper-tion and -ood-neiglibourline:s basic rules governing this matter,
without this bein_ construed as enabling each State I Declares that no resolution adopted at the twenty-
delay or impede the programmes and rDrojects of e: seventh session of the General Assemibly can affect
plorafion, exploitaiion and development of the natur principles 21 and 22 of the Declaration of the United
resources of the States in whose territories such pr( Nations Conference on the Human Environment.
gramnies and projects are carried out. 21
121h plenary mneeting
21121h plenary meeting 15 December 1972
15 December 1972
 THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION

1975

The Peace River Basin Case,

New Helois v. Karma, 1975.

Best Written Memorial

(Applicant)

National Award University of Texas School of Law #26

 NO. 1975
I I I. . ... .. . . m

IN THE
INTERNATIONAL-COURT OF JUSTICE AT THE PEACE PALACE
THE HAGUE, NETHERLANDS

THE STATE OF NEW HELIOS,

Applicant

THE STATE OF KARMA,

Respondent

APRIL TERM
1975
On Submission to the

On Submission to the
InternatiQnal.Court of Justice

MEMORIAL FOR THE APPLICANT

George L. Flint, Jr.

Daniel J. Foucheaux, Jr.
Michael G. Mullen
April. 26, 1975 Agents.for Applicant
 TABLE OF CONTENTS

Page

Index of Authorities .................... iii

Jurisdiction .. o o . .. ... * .. .. ......... 1

QdestionsPresented ...................... 2

Statement of Facts . . . .... ............ 2

Summary of Argument ......... .................... 5

Argument and Authorities . . ............... 6

Io KARMA'S POLLUTION OF BOUNDARY.AND OTHER WATERS

VIOLATES THE 1923 TREATY WITH NEW HELIOS .... .... 6

A. Karma has breached the Treaty by allowing

the discharge of sewage and industrial
waste from the paper mill into the Upper
Peace River . ................ 6

B... Karma has breached the Treaty by allowing

the discharge of heated water from the
nuclear power plant into the Lower Peace
River . . . . ... . . ... ......... 9

C. Karma has breached the Treaty by failing

to negotiate specific arrangements for
the use of boundary waters .... ......... ... 11

D. The doctrine of rebus sic stantibus does

not nullify the anti-pollution .provisions
of the Treaty o.................. 12

II. THE DISCHARGE FROM THE PAPER MILL AND NUCLEAR

* POWER PLANT BREACHES KARMA'S OBLIGATIONS
UNDER GENERAL PRINCIPLES OF INTERNATIONAL- LAW . .. 13

A. A state may not alter the natural condi-

- tions of her own territory to the detri-
ment of the territorial environment of a
neighboringstate ... .. ............... ... 14

B. The discharge from Karma's paper mill and

nuclear power plant has significantly.
damaged the territorial environment of
New Helios. ....................... .... . 15
 Page

C. Under principles of state responsibility

Karma is liable for the harmful effects of
governmental and private-pollution in neigh-
.boring countries ...... ................ .16

D. Even if the principle of equitable utiliza-

* tion applies, Karma is liable for the sub-
stantial and preventable .damage to the
territorial environment of New Helios . . . . . 17

III. KARMA IS OBLIGATED UNDER INTERNATIONAL LAW TO

MAKE REPARATIONS FOR THE DAMAGES TO THE TERRI-
* TORIAL ENVIRONMENT OF NEWHELIOS .. ......... . 20

A.. The Court should direct Karma to pay com-

pensation to New Helios for damages caused
by the illegal discharge of wastes into
the Peace-River 20
1; The damage in the form of water purifi-
cation expenses is compensable.......... 20
2. The Damage to the health of New Helios'
citizens is compensable .. .......... ... 21

B. The Court should direct Karma to cease and

refrain from its illegal discharge of
wastes into the PeaceRiver ... .......... .. 22
1.. The Court should declare Karma bound to
take all reasonable measures to prevent
pollution at the paper mill site ..... . 23

2.. The Court should declare Karma bound to

take all reasonable measures to prevent
harmful discharge at the nuclear power
- plant . . . . ............... .26

C. The Court should declare that both states

have a duty to negotiate--an.equitable regime
for regulating legitimate uses of the waters . 27

IV. THE COURT SHOULD INDICATE INTERIM MEASURES TO

PROTECT NEW HELIOS PENDING FINAL JUDGMENT ..... . 28

Conclusion. .. ............. . .......... 30

Certificate....................................... 30
 INDEX OF AUTHORITIES

Page

Cases

Advisory Opinion on Interpretation of the Peace Treaties,

[1950] I.C.J. 221 . . . . . . . . . ........ 6, 8
Ambatielos Case (ist Phase), [1952] I.C.J..45 . . . . . . 8

Anglo-Iranian Oil-Co. Case (Interim Measures of Protec-

tion), [19511 I.C.J. 89 . . . . . . . . . . . . . . 29

Chorzow Factory Case (Jurisdiction), [1927] P.C.I.J., ser.

A,No. 9 . . . . . . . . . . ........... 20

Chorzo w Factory Case (Merits), [1928] P.C.I.J., ser. A,

No. 17 . .............
•. ... 20

Corfu Channel Case (Merits), [1949] I.C.J. 4 . . . . 7, 17, 21

Denunciation of.the Treaty of November 2, 1865, between

China and Belgium, [1927] P.C.I.J., ser. A,..
No. 8 . . . . . . . ................. 22

First-South West Africa Case (Advisory Opinion), [1950]

I:C.J. 128 o..................... 12

Fisheries Jurisdiction Case (Federal Republic of Germany,

v. Iceland) (Merits), [1974] I.C.J. 175 . . ... 20

Fisheries Jurisdiction Case (Interim Measure of Protec-

tion), [1972] I.C.J. 12 .... ............... 29

Fisheries Jurisdiction Case (Jurisdiction), [1973]

I.C.J. 3....... ..................... 12, 13
Fisheries -Jurisdiction Case (United Kingdom v. Iceland)
*(Merits), [1974 I.C.J; 3 ......... .... 28

International Commission on the River Oder Case, [1929]

P..C.I.J., ser. A, No. 23 .... ................ 18

Interpretation of Judgments Nos. 7 and 8 (The Chorz1w

Factory), [1927] P.C.I.J., ser. A; No. 13 . . . . . 22

King of Spain Case, [1960] I.C.J. 191 ......... .. 13

Lac Lanoux Arbitration.(Spain v. France),. 24 I.L.R. 101

(1957) . .. o.o...o. . .. . . .10, 15
iii
 Page

Mason v; Hill, 110 Eng. Rep. 692 (1833) . . . . . . . . . . 10

North Atlantic Coast-Fisheries Case (United States v.

United Kingdom), Hague Court Reports (Scott)
143 (Perm. Ct.-Arb. 1916) . . . . . .. .. . . . . 11

North Sea Continental.Shelf Case, [1969] I.C.J. 3 . . . . . 9

Northern Cameroons Casei [1963] I.C.J. 37 . . . ..... ... 22

Nuclear Tests Case (Australia v. France) (Interim Meas-

ures of Protection),.[1973] I.C.J..99 ......... . 29

Phosphates-in Morocco Case (Preliminary Objections),

[1938] P.C.I.J., ser. A/B, No. 74 . . . . . . ... 16

Polish Nationals in Danzig Case, [1932] P.C.I.J.,.ser.

A/B, No. 44 . ...... .. .. ..... .... 11

Polish Postal Service in Danzig Case, (1925] P.C.I.J.,

ser. B, No. 11 . . . . ............... 8

Second Membership Case, [1950] I.C.J. 4 . ......... .10

Serbian Loans Casei [1929] P..C.I.J., ser. A, Nos. 20-21 . . 21

S.S. Wimbledon-Case, [1923] P.C.I.J.., ser. A, No. 1 . . .. 12-

Temple Case, [1962] I.C.J. 6 ..................... . 13

Trail Smelter Arbitration (United States v. Canada),

3 U.N.R.I.A.A. 1905 (1949). . o o . . . 14, 21, 23, 28

Treatises.and Digests

C. EAGLETON-, RESPONSIBILITY OF STATES IN.INTERNATIONAL

LAW (1928). ....... ... . . . 22

ENGINEERING ASPECTS.OF.THERMAL POLLUTION .(F-.Parker &

P. Krenkel eds. 1969) ........... ....... 26

3 B. GINDLER, WATER AND WATER RIGHTS (R. Clark ed., 1967) . 10

2 L..KLEIN,. RIVER POLLUTION. (1962)................ . . 25

Ai. KNEESE.&.*B. BOWER, MANAGING WATER QUALITY.: ECONOMICS,

TECHNOLOGY,: INSTITUTIONS .(1968) . o . . . . 1 25

THE LAW OF:- INTERNATIONAL DRAINAGE. BASINS (A.- Carretson,.

- et aL-. ed. 1967) . .. . .. .............. 18
 V

Page

MANUAL OF. PUBLIC INTERNATIONAL LAW (M. Sdrenson ed.

1968) . . . ... . . . .. .. . . . ... 16, 22

A. McNAIR, LAW OF TREATIES. (1961) ............ .7., 10, 11

D. O'CONNELL., INTERNATIONAL LAW (1965) ............ 16

1 L; OPPENHEIM, INTERNATIONAL-LAW: -A TREATISE (8th ed.

R. Lauterpacht 1955) . . . . . . . . . 14
TRANSMISSION OF VIRUSES BY THE WATER ROUTE (G.. Berg ed.
1965) . . . . . .. .. . ...... ........... 24

W. VERWEY., ECONOMIC DEVELOPMENT, PEACE AND INTERNATIONAL

LAW (1972) ... . .. ..... .. . . . . . . 19

M. WHITEMAN, DAMAGES IN- INTERNATIONAL LAW (1937) . . . . 20, 21

WORLD.HEALTH ORGANIZATION, INTERNATIONAL STANDARDS FOR

.DRINKING WATER (1963) ......... ......... 24

. Journals

Bourne,. Procedure in .the Development .of International

Draining Basins:. The Duty to Consult and to
Negotiate, 10 CAN. YiB. INT'L L. 233 (1973) ..... 27

Comment,. Thermal. Discharges: A Lega.L: P.roblem, 38 TENN.

L. REV. 369 (1971) ............... . i0

Goldie, Liability for Damages and. the.Progressive De-

.velopmentof International :Law ----
14 INT !L &
COMP.. L.Q. 1189 (1965)- ..... ....... . 19

Gross, The Time Element in the ContentiousProceedings

in .the International Court-of Justice, 63 AM.
J. INT'L-L. 74 (1969) •............... 28

Jackson, The Dimensions of. International Pollution, 50

ORE. L. REV. 236 (1971) . . .......... 25, 27

Kfilz., Further .Water Disputes. Between.India and -Pakistan;

18 INT'L & COMP. L.Q. 734-(1969) ........ . . . 28

Utton,..International Water Quality Law, 13 NATURAL RE-

SOURCESJ. 282 (1973). . ............. 9

Van Alstyne, The Justiciability of.-International River

Disputes:. A Study.in.the Case-Method,.1964-
DUKE L.J. 307 . . . . . . . . .......... 15
 vi

Page

Miscellaneous

Ago,. (Third) Report on State Responsibility, [1971]

2 Y.B. INT'L L. COMM'N 216, U.N. Doc. A/CN.
4/246 (1971) . .............. . . . .. 16

Economic-Commission for Europe, 2 Economic Aspects of

Treatment .and Disposal of Certain industrial
Effluents; U;N. Doc. WATER POLL./ECON./6 (1961) . . 23

G.A. Res. .2625, 25 U.N. GAOR, Supp.. 28, U.N.. Doc-.

A/8082 (1970) ... ... ....... . . . . 29

I .C.J.. RULES, art. 61...... ........... .

. 28

I.C.J.. STAT.. art. 36 . . . . . .............. 1

I.C.J. STAT. art. 37 ................ . .. 1

I.C.J. STAT.. art. 41 ...... ................... . 28

INSTITUT DE DROIT INTERNATIONAL, 49 ANNUAIRE, Tome II

(1961) ........................... 28

International Joint Commission (Canada and United

States)., Report on the Pollution of Boundary
Waters (1951) ................ . .. 9, 24, 25

INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FIFTY-

SECOND. CONFERENCE, HELSINKI (1966) . . . . . 10, 18, 28

Manner., Water Pollution in International Law in 2 U.N.

Doc. WATER POLL./CONF./12..(1960).............. 14

A. McLAUGHLIN., TREASURY DEPARTMENT, SEWAGE POLLUTION

OF INTERSTATE AND INTERNATIONAL WATERS WITH
SPECIAL. REFERENCE TO THE SPREAD OF.TYPHOID
FEVER (Hygenic Laboratory Bull.. No. 77, 1911) . . . 22.

Report. of the United Nations Conference on the Human

Environment, U.N. Doc. A/CONF. 48/14/Rev. 1
(1972) .. ........... .............. 10, 17

Survey on International Law, U.N... Doc.. A/CN. 4/1 Rev. 1

(1949) . ..................... 14

U.N. CHARTER,. art. 1, paras. 2' 3 .............. 29

U.N. CHARTER, art. 2, para. 3 .......... ..... .... . 29

U.N. CHARTER,. art. 55 ... . .... ... .......... . 29

 vii

Page

United Nations. Conference on the Human Environment,

Stockholm, Development and Environment, U.N.
Doe. A/Conf. 48/10 (1971) . ..... . . 0 *.. . .. 19

Vienna Convention on the Law. of Treaties .(1969), U.N.

Doc. A/Conf. 39/27 (1969.) . . . . . . . . 8, 10, 12, 13

WORLD. HEALTH ORGANIZATION,. WATER POLLUTION CONTROL IN

...DEVELOPING. COUNTRIES: (Technical Rep. Ser.
No.. 404,. 1968) . . . . . . . . . . . . . . . . . . 24
 NO. 1975

IN THE
INTERNATIONAL COURT OF JUSTICE

THE STATE OF NEW HELIOS,

Applicant

V.

THE STATE OF KARMA,

Respondent

APRIL TERM
1975

MEMORIAL FOR THE APPLICANT

JURISDICTION

Karma and New Helios have agreed to submit their dispute

to the International Court of Justice under paragraph 3 of Arti-

cle IV- of the 1923 Treaty .of Amity, Friendship and Economic Co-

operation.. The.Court may hear the ,case pursuant to Article 36 and

Article 37 of the.Statute of the-International Court of Justice.

I.C.J. STAT. art. 36, para. 1; art. 37.

 QUESTIONS PRESENTED

I. WHETHER KARMA HAS VIOLATED THE 1923 TREATY. BY ALLOWING

THE DISCHARGE OF. WASTES FROM THE. PAPER MILL AND NUCLEAR
POWER PLANT.

II.. WHETHER KARMA HAS VIOLATED.GENERAL PRINCIPLES. OF INTER-

NATIONALLAW BY ALLOWING THE-DISCHARGE OF WASTES. FROM
THE PAPER MILL AND NUCLEAR POWER PLANT.

WIII..
HETHER KARMA. IS-.OBLIGATED. XO. MAKE- REPARATIONS FOR THE
EFFECTS OF. THE. DISCHARGE. ON THE TERRITORIAL- ENVIRONMENT
OF NEW.HELIOS..

IV. WHETHER THE COURT. SHOULD. INDICATE INTERIM MEASURES OF

PROTECTION: PENDING, A FINAL DECISION.

STATEMENT. OF. FACTS

The, Upper.Peace River,. situate& wholly within the State of'

Karma, flows into the International Lake, which borders Karma on..

the south and the State of New-Helios on the north. The Lake .emp-

ties :into the Lower..Peace River which.runs along the boundary be-

tween the two States. before.reentering Karma and emptying into the

ocean. . (Seemap.)
Ten.years ago a private company in. Karma, on the recom-

mendationof the World Development Authority (WDA) opened a large

pulp .and paper mill on the shores of the Upper .Peace. The mill

has contributed-to the development of Karma's northern Wilderness

- Region.. The WDA further recommended that-the mill company con-

struct pollution control devices to .treat the wastes from the

mill and the raw sewage-from the surrounding Shantytown, but the

company.contends that.the cost is prohibitive. The company has

promised to begin providing suitable..housing .to alleviate the

sewage, but to date no action has been. taken... Since its -construc-

tion the .mill complex has discharged untreated wastes and sewage.
 of the
into the.Upper Peace, thereby affecting New Helios' use

waters of International Lake. For many years the Lake has been

the-source of.drinking water for New Helios' capital,-but the

mill-effluents have made the.water.undrinkable. The-Lower Peace

in the
Brewery, a major .industry in New Helios, uses the water
State of New
production-of its celebrated beer and ale..- Both the.
puri-
Helios and the Brewery have already purchased sophisticated
New
ficationequipment; if-the pollution.continues unchecked,
of
Helios will -be forced to install further devices at a cost
source.
$2,000,000, and the brewery may have to seek. a new water
the-closing
In addition, reports of an increase, of typhoid forced

of the beaches around NewHelios! capital.

In 1970, without any notification to New Helios, Karma

of the
began.constructing a huge nuclear.power plant at.the mouth-

Lower Peace. The plant, a state-owned corporation, was-con-

structed to meet energy needs in Karma's .capital, located over ten

miles to the south. In May of 1974 the plant began-operation at

into
ten percent capacity,.emptying heated water used for cooling

the river. At-that time the citizens of New Helios protested that

the heated waterwould ruin their recreational use. of the river..

have-
The management-of the Brewery also objected since-they must

cool water for brewing beer. If the plant becomes .fully opera-
la-
tional, the Brewery will be forced either to install cooling

goons at a cost of $900,000 or to seek a new water source.

New Helios made several protests to the-Government of

Karma, but-these received only a curt.-reply that Karma-had the

In July of
sovereign right.to develop in any manner..she chooses. -
 the dis-
1974, New Helios lodged a formal protest, stating that
of
charge into the Peace River system violates the 1923 Treaty
Karma
Amity, Friendship and Economic Cooperation (Appendix).
in both
refuses to acknowledge any.violation; citizens groups

countries are threatening boycotts.

Karma and New Helios have agreed to submit the disputes

paragraph 3 of
to the International Court of Justice pursuant to
immunity
Article IV of the 1923 Treaty. Defenses of sovereign
the Court has
and exhaustion of local remedies have been waived;
the case.
granted the request that a three-judge chamber hear
 SUMMARY OF ARGUMENT

The pollution from Karma'.a paper.mill and nuclear..power

plant-breached the 1923 Treaty.withNewHelios. In Article II of

the.Treaty-Karma and New Helios agreed that neither State would

pollute any part of -the Peace River so as to injure health or prop-

erty in the other State. Karma has also breached the Treaty by

failing to give notice of the construction of the nuclear power

plant. The-doctrine of rebus sic stantibus does-not release Karma

from liability, since.what changes have occurred do not affect

Karma's basis for consent, and Karma has acquiesced in.the validity
of the Treaty.

Karma's pollution violates general principles of inter-

national law. The principle.of sic utere prohibits a State from

using her territory.for purposes detrimental to the interests of

neighboring States. Under the.principle of state responsibility

Karma is responsible for the harmful effects of pollution by her-

private citizens (paper mill) as well as that resulting from di-

rect state action (nuclear power plant). Even applying the theory.

of equitable utilization, the benefit to Karma does not. outweigh

the injury to the environment of New Helios.

Karma is obligated to.make reparations for the damage to

New Helios !- territorial environment. The,Court- should direct

Karma~to pay cQmpensation, for. the damage already suffered, .and to

cease and refrain from the illegal pollution, of the Peace River.

The Court should also recognize the existenc9 of an international

obligation.to negotiate an equitable regime .for the settlement of-

future-water use-disputes.
 The Court should indicate .interimmeasures, of- protection

pending, final ludgment.... Serious and irreparable..consequences are

imminont if Karma's..pollution continues at.present or-increased

levels..

ARGUMENT AND.AUTHORITIES

I;, - KARMA'S POLLUTION OF. BOUNDARY AND. OTHER, WATERS VIOLATES

THE 1923 TREATY.-WITH NEW HELIOS.

A refusal. to fulfill a treaty obligation,involves inter-

national responsibility,. Advisory- Opinion-.on. Interpretation- of -

Peace Treaties-....[1950] I.C.J.. 221,- 228. Karma has breached the

anti-pollution provision of the 1923 Treaty in three instances.

First, the paper mill complex discharged its waste into the-Upper

Peace River.. Second, the nuclear-power plant:discharges its

thermal..wasto into. the Lower.Peace River-. Third. -Karma has-

failed to enter into specific arrangements for the use of bound-

ary waters.

. A.. Karma has breached .the..Treat...bylallowingi.the:-dis-,-.

. .. charge of. sewage and:.industrial.waste, from. the; paper
.mill- into-the Uppe- .eace.River ..--......

S.The anti-pollution provision of .the-1923 Treaty,. Article

If(1), states.that "neither state shall pollute boundary waters

or other waters running between them so as to injure the health

or property-in..theother state." (See-Appendix). The paper

mill complex, owned by citizens of.-the state.of Karma, empties

its waste into. the Upper Peace- River.. .(R. 2). The resulting
polliition.inboundary.waters .has.
injured,. first,..the- health of
N&w Helios' citizens by causing a tyhpoid, outbreak and by creat-

ing non-potable,water necessitating a purification plant and,

 second, .the property of New Helios' brewery by forcing it to in-

stall an expensive purification plant or seek pure water else-

where. (R. 3). Three principles .of international law make Karma

liable.

1. The Treaty obligates Karma .reasonably to control

pollution of boundary.waters by its citizens.

In the absence of a provision creating liability for

breaches committed by.a state's citizens, a state only has a duty

to take all reasonable measures of. prevention and punishment to

ensure that her citizens do not.violate the treaty. A. McNAIR,

LAW OF TREATIES 551 (1961) [hereinafter cited as.McNAlK]t-Karma

has not taken all reasonable measures. The World Development

Authority hasrecommended construction of waste treatment facili-

ties at the mill site for both mill wastes and sewage. (R. 2).

The mill company has promised to erect modern housing,. alleviat-

ing only the sewage .problem. Karma has not begun construction of

treatment facilities, choosing instead .to allocate her funds to

a nuclear power plant.. Nor has-Karma taken any measures to punish

or enjoin the .polluters. Karma, therefore, has breached her.

treaty obligations.

2. Pollution of boundary waters encompasses pollu-

tion of tributaries located wholly within one
state's territory.

Article II(1) states that..the .parties cannot pollute

"boundary.watersor other waters. running-between -themir!'- (empha-

sis added). The surplus words rule of interpretation- requires

that the.Court interpret the Treaty so as to give effect to every

word. Corfu Channel Case (Merits), [1949] I.C.J. 4, 24.. Lower

 Peace River and International Lake form part of. the boundary be-

tween Karma and New Helios; Upper Peace-River does not.Unless

"other waters running between them" is devoid of effect, the words

must mean the actual waters which flow naturally from Upper Peace

River,between the two countries, to -the sea.

Furthermore, the Court interprets treaties according to

their normal.meaning in their context. unless this leadsto an un-

reasonable or absurd result... Polish. Postal Service.in Danzig

Case, [1925] P.C.I.J.,.ser. B, No.. 11, at 39. In the latter situ-

ation, the Court can look to supplementary means of interpreta-

tion. Id.-; Vienna Convention on the Law of Treaties, art. 32,

U.N. Doc. A/Conf.. 39/27 (1969) [hereinafter cited as Vienna Con-

vention]. Excluding a tributary situated wholly within one state

from the 1923 Treaty's designation of waters is unreasonable and

absurd, since water polluted in such a tributary eventually flows-

into boundary-waters and pollutes them as well. The rule of

effectiveness requires that -the Court interpret a treaty .so as .to

give practical effect to the intentions of the parties.. Ambatie-

los Case (lst.Phase), [1952] I.C.J..45; Advisory Opinion on In-

terpretation of Peace Treaties,.supra at.233-38 (dissenting opin-

ion of Judge Read). In the .1923 Treaty, the parties intended to

prohibit pollution that-might cause injury. Therefore,- to give

effect to. this intent the Court must interpret "other waters" so

as to include the Upper -Peace River.

3. The doctrine of estoppel does not apply.

The doctrine of eptoppel by conduct.applies only when a.

state's prior.inaction is inconsistent with her current complaint.

North Sea-Continental Shelf Case, (1969] I.C.J. 3, 27; id. at

121-22 (separate opinion of Judge Ammoun). At the time Karma's

paper mill complex began operation, it was difficult to foresee

the seriousness of the future injury. Pollution causes injury

only when the concentration level exceeds the natural ability of

the river to remove the pollutants. Utton, International Water

Quality Law, 13 NATURAL RESOURCES.J. 282 (1973). This requires

time. See International Joint Commission (Canada and United

States), Report on the Pollution of Boundary Waters 165 (1951)

[hereinafter cited as International Joint Commission,. Report].

Because of the difficulty in forecasting an outbreak of tyhpoid

or the serious water contamination, New Helios lodged no com-

plaint initially. When the gravity of the injury became clear,

Karma persuaded New Helios not to act.by obtaining a promise from

the mill owners to build modern housing to alleviate the sewage

problem. (R. 2). New Helios waited for the mill .to comply.

When it first became clear that Karma did not intend to enforce

the promise, New Helios lodged a formal protest--a step entirely

consistent with its previous inaction. New Helios, therefore,

never-accepted.Karma's interpretation of the treaty and is not

estopped for that reason.

B. Karma has -breached- the, Treaty by allowing, the. dis-

charge of heated water from the nuclear-power plant
into the Lower Peace-River..

The.nuclear power plant's thermal discharge breaches the

The,state-owned utility,
anti-pollution provision of the Treaty.. ..

now operating at ten percent of capacity, .empties its heated

effluent into boundary waters--the Lower Peace River, (R. 3).

 The resulting.thermal pollution will injure New Helios' citizens'

property interest..in the river's recreational use and the-property

of the brewery.by forcing it to install $900,000 cooling lagoons

or seek cool..waters elsewhere. (R. 4)... In anticipation of this

breach New Helios may seek relief having the-effect of an injunc-

tion. See McNAIR, supra at 576.

1. Thermal discharges constitute pollution since

they change the quality of the water.

The Court must give the Treaty terms their ordinary-mean-

ing. Second Membership Case (Advisory.Opinion.-[1950 I.C.J. 4,

8; Vienna Convention,.supra art. 31. The term "pollution" in in-
ternational.law includes thermal pollution. 3 B. GINDLER,. WATER

AND WATER RIGHTS 21 (R. Clark ed. 1967).; Report .of the United Na-

tions Conference .on the Human Environment 4, U.N. Doe. A-Conf.

48/14/Rev. 1 (1973). Article IX .of .the.Helsinki Rules on the

Uses of the Waters of International Rivers defines "water pollu-

tion".as "any detrimental change resulting from human conduct in

the natural .composition, content,. or quality of the waters.. IN-

TERNATIONAL-LAW ASSOCIATION, REPORT.OF THE.FIFTY-SECOND.CONFER-

ENCE, HELSINKI RULES, art. IX (1967) [hereinafter..cited-es HEL-

SINKI RULES]. Pollution, therefore, .encompasses.more than-chemi-

cal.change. It includes changes.in temperature. See Lac Lanoux

Arbitration. (Spain v. France); 24 I.L.R. 101, 121 (1957); Comment,

Thermal- Discharges: A Legal Problem,. 38. TENN. L. REV.... 369, 380

(1971). Furthermore, although nuclear reactors are a recent de-

velopment, thermal pollution from heat exchangers has-existed for

over a century.. See, e.g., Mason.v. Hill, 110 Eng. Rep. 692
 (1833). The 1923 Treaty, therefore, envisioned "thermal pollu-

tion" within the prohibition.

.2. International law allows an action -in anticipa-

tion of a breach..of the. treaty.

Karma in locating her nuclear power.plant .has violated

the requirement of good faith adherence to treaty. obligations for

those situations in which certain state:acts,.though.not in form

a breach, effectively breach a treaty...Polish. Nationals in.Daneig

Case, [1932] P.C.I.J.,, ser. A/B, No.. 44, at 28; McNAMR,.supra at

540. An act technically not a breach of.a treaty that in sub-

stance frustrates the rights -of the other-party constitutes a

breach of good.faith and hence the treaty ....

North-Atlantic.Coast

Fisheries. Case. (United States..v.,.United..Kingdom), -Hague Court

Reports (Scott).143,,170 (Perm. Ct. Arb. 1916); McNAIR-,.supra at

550. The-positioning of the power plant at the mouth of the

Lower Peace River rather than closer to Karma'.s capital where the

energy will be needed or below the brewery where no harm will be

done demonstrates Karma's lack of good faith and has frustrated

New Helios' right, guaranteed by the treaty, of freedom from fear

of damaging pollution. This clearly breaches the good faith re-

quirement of the treaty and exposes Karma to liability.

.C... Karma has breached .the4.Treaty..by. failing, to. negotiate

- --. specific -arrangements, for. the;use.,of.-bounday. waters .

The antl-pollution provision of -the 1923 Treaty, Article

11(2), states that "in furtherance of [the] responsibility [not to

pollute] the parties [agree] to enter into specific arrangements

as appropriate," Karma has breached this-provision by not notify-

ing NeW Helios of the construction of. the nuclear power plant.
The Court looks to other provisions of the same treaty to deter-

mine the parties' intent. S.S. Wimbledon Case, [1923] P.C.I.J.,

ser. A, No. 1, at 23. Article III states that conditions may be

placed on.navigation only when ."either-state, upon notification

to the.other,believes that health and safety require the imposi-

tion of such conditions." It is unlikely that.the states-would

require notification before restricting,navigation and not re-

quire notification before restricting the use of the waters by

pollution. "Specific arrangements,' therefore, includes notifi-

cation. Moreover, interpreting "appropriate, specific arrange-

ments" solely as a requirement to.negotiate would violate-the

surplus word rule. First South West Africa Case .(Advisory..Opin-

ion), [19501 I.C.J. i28, 187. Since Article . contains the re-

quirement to negotiate, it would .deprive Article 11(2) of any

meaning. Karma, thereforei breached Article 11(2) when she lo-

cated and constructed the nuclear .power plant ithout-prior.

notification.

D. The doctrine of rebus..sic.stantibus.-does--not-nullify

the anti-pollution..provisions-:of the Treaty =:

The.doctrine of rebus sic stantibus does not apply to

Karma's situation since not all of the elements.necessary for its

application are met. The conditions that have .changed-must have

been essential to Karma'. consent to the Treaty. Fisheries uris-

diction- Case (Jurisdiction), [1973] I.C.J. 3, 17; Vienna Conven-

tion,:supra, art; 62. What has .changed .isKarma's economy. Noth-

ing indicates that Karma's state of..development was essential to

Karma's agreement not to injure or.be injured by pollution. The

 fact that some. of Karma's motives for entering the agreement have

become less compelling, or have.disappeared-is not a ground for

repudiation of those provisions .of the agreement that remain un-

changed... Fisheries Jurisdiction..Case.:.supra. at.l8. Furthermore,

the object and.purpose-of the pollution provision--protection of

health and property--have .not changed. The change in Karma's

economy, therefore, cannot nullify.the pollution provision. Id.

Furthermore' the principle of acquiescence-applies. A

state may not claima treaty is invalid on grounds .of rebus sic

stantibus if, after becoming aware. of the facts, the state has

expressly agreed that the treaty is valid.. Temple Case, [1962]

I.C.J. 6, 23-32; King of Spain Case. [1960] IC.J. 191, 213-14;

Vienna Convention, art. 45. Karma, in submitting this dispute to

the Court, stipulated that the 1923 Treaty.was the only binding

bilateral agreement between Karma-and New Helios.. Karma has,

therefore,. acquiesced in the validity of .the .treaty-and may not.

argue its.invalidity.

II. THE DISCHARGE FROM-THE PAPER MILL AND.NUCLEAR POWER PLANT

BREACHES KARMA'S OBLIGATIONS UNDER. GENERAL:PRINCIPLES OF
- INTERNATIONAL LAW.

Besides the .obligations .arising under the 1923 .Treaty,

Karma has-violated international.law .by .allowing.the.use of her

territory to cause serious harm in-.New Helios.. Karma is respon-

sible for the..damage.to the environment .of New Helios under.-prin-

ciples of state responsibility. Even .if .the Court .declares a

customary.regime of equitable utilization,,Karma is still liable

for.the harmful.effects of her pollution.

 A. A state may not alter the natural conditions of her
own territory to the detriment-of the.-territorial
environment of a.neighborinS state.
on a state's actions
international law imposes limitations
another stateunder the
that cause injury in the territory.of
ut-alienum non laedas: "one
legal.principle of sic uteretuo
In the words of Judge
must not use his own to injure another."
Law that no state is
Lauterpacht, "it is -a rule of International
of its own territory to
allowed to alter the natural conditions
of the territory of a
the disadvantage of the natural conditions
INTERNATIONAL LAW, 474-75
neighboring state." I L. OPPENHEIM,
has been general recogni-
(8th ed. H. Lauterpacht 1955). "There
not permit the use of its
tion of the rule that a State must
to the interests of other States
territory for purposesinjurious
Survey of Interna-
in a manner contrary to international.law."
4/1 Rev. 1 (1949). Sic.utere is
tional Law 34, U.N. Doc. A/CN.
of territorial sovereignty,
an obligation inherent in the concept
sovereign jurisdiction.
a duty correlative to the right.of
U.N. Doc. WATER
Manner- Water Pollution in International.Law,
2
POLL./CONF./1 , at 21 (1960).
is exactly the.form
Pollution across national boundaries
The Trail Smelter Arbitra-
of injury that sic utere prohibits.
leading arbitral decision
tion, 3 U.N.R.I.A.A. 1905,(1949), the
"under the principles of
on international pollution, held that
right to use or permit
international-law . . . no State has the
as to cause injury by
the use of its territory in such a manner
or the properties or.per-
fumes.on or to the territory of another
consequence and the
sons therein, when the case is of serious
 injury is established by clear and -convincing evidence.". 3 U.N.

R.I.A.A. at 1965 (1949). In .the Lac Lanoux Arbitration the tri-

bunal applied sic%.utere directly-..to .international rivers, and

indicated that each .state's right..to.usethe .water in her. terri-

tory is limited to the extent that right conflicts with the

availability for use by other riparians. Lac Lanolx, supra; cf.

Van Alstyne, The Justiciability of International River Disputes:

A Study in the Case Method, 1964 DUKE L.J. 307, 314.

B:.. The.discharge- from Karma's-paper.mill and.nuclear
power plant has significantly damaged the territorial
........environment of New;Helios...

International Lake, for many years the source of drinking

water .for the capital of New Helios, is now-unfit for human.con-

sumption, a condition requiring sophisticated purification facili-

ties constructed at considerable expense. The waters of the Lower

Peace were once pure enough for use in the acclaimed beer and ale

produced by New Helios' Lower Peace Brewery.. High pollution

levels have forced the brewery to purify .the water before use,

The.1970 increase in typhoid .forced the .closing of resort beaches

around the capital of New Helios, and it.can be proved that in-

creased pollution caused the disease outbreak.

Besides the mill's pollution, .the-partial operation of

the nuclear power plant near .the Lower Peace River threatens New

Helios' property interest in the recreational use of the sur-

rounding waters. If thermal pollution from the power-plant in-

creases, the brewery.may need to seek an .entirely new water

source.. The plant'.s expected .expansion .of capacity will .compound

these problems.
 C......Undert..principles..of. state responsibility Karma.- is
liable-for the harmful. effects:of, governmental and
private pollution..int.neighboring countries.-

A-state .is responsible for..injuries only when, first, the

offensive conduct violates an international.obligation-and, sec-

ond, the conduct can be attributed.-to.the state as a subject of

international law. Phosphates .in-

Morocco- Case .(Preliminary Ob-

jections), [1938] P.C.-I.J., ser. AiB, No. 74, at 28; Ardchaga,

International Responsibility, in MANUAL OF PUBLIC INTERNATIONAL

LAW 534 (S~rensen ed. 1968) [hereinafter cited as ArLchaga].

Since Karma's operation of the paper mill and power plant

violates- the international legal obligation expressed in the

maxim sic.utere, the remaining issue concerns whether Karma is

responsible as a subject of international, law. The actions of

the nuclear power plant,. a state-owned facility, are directly

attributable.to the Karma government. The paper mill, however,

is a private enterprise, and Karma may argue.that-the absence of

state action precludes liability.

Such a position would -be totally without merit under the

acknowledged principles of state responsibility. A state may in-

cur responsibility through an omission when-state .officials

should have prevented the conduct causing the damage..- 2 D. O'CON-

NELL, INTERNATIONAL LAW 1021 (1965). -In fact, cases -invoking

international responsibility on grounds of a state's omission to

act are more numerous than those based .on overt state action.

Ago,.(Third). Report on State Responsibility, [1971] 2 Y.B. INT'L

L. COMH'N 216, U.N. Doc. A/CN. 4/246- (1971). The 1972 United Na-
tions Conference -on .the Human Environment in Stockholm accepted
 imputed responsibility in Principle 21, which proclaims that

states have the.."responsibility to ensure that activities within

their jurisdiction orcontrol.do not causedamage to the environ-

ment of- other- states .or .of areas beyond the limits .of national

jurisdiction." Report of the United Nations Conference on the

Human.Environment 5, U.N. Doc.. AtConf. 48/14/Rev. 1 (1973).

Karma has permitted -the operation .of -the paper mill and the con-

comitant discharge of sewage and wastes into the Upper Peace.

Karma, took no action whatsoever .to abate the pollution, even

after protests from New Helios. (R. 4).

In .the Corfu .Channel-Case the Court held that it is

"every State's obligation not to allow knowingly its territory to

be used for acts contrary to the rights of other .States." Corfu

Channel- Case .(Merits), [1949] I.C.J. 3, 22. A state' because of

her exclusive territorial control, cannot .beviewed as having con-

structive knowledge of all illegal acts committed within her ter-

ritory; however, the Court should allow a complaining state ."lib-

eral.recourse to inference .of fact .and circumstantial evidence"

in proving facts .giving rise to responsibility. Id. at 18. In

light of the -WorldDev.elopment Authority's recommendation Karma

can scarcely plead .ignorance .of the mill's harmful conduct and,.

therefore, must beresponsible for it.

D.....Evenif. -the-.principle of.. equitable- utilization

applies,-Karma is liable for the substantial and-pre-
ventable .damage to the- territorial environment of
... New Helios.

The violation: of-sic...utere. provides a sufficient basis

for holding Karma liable for the damage to the environment of New
 Hellos. However, there is some support of the international com-

munity for settlement of water use disputes by the doctrine of

equitable:utilization.. HELSINKI RULES,.supra at 486-94. Article

IV of the Rules states that ."each basin State is.entitled, .within

its territory, to a reasonable and .equitable share in the benefi-

cial uses of the waters of an international drainage basin."

Article.V provides that "what is a xeasonable and equitable share

within the meaning of Article -IV is to be determined in .the light

of all the relevant factors in each -particular case." A consider-

ation .of equitable-utilization is not.warranted when one State so

blatantly ignores .the sic utere obligation. Application of equi-

table utilization, however, in no way-excuses Karma's pollution.

Each riparian state has.a right under international law

"to have its own interests taken into account together with those

of other states." J. BRIERLY, THE LAW OF NATIONS 231 (6th ed.

1963). The Permanent Court of International .Justice recognized

the right -to equality of use with respect to navigation.. - Inter-

national Commission-on the River Oder Case, [1929] P.C.I.J., ser.

A, No. -23, at 26-27. Equitable apportionment, however, modifies

the equality principle by requiring that the division of water

use be in accordance with -the ."legitimate economic and social

-needs" of each .riparian State. . Lipper, Xquitable Utilization,. in

THE LAW .OR INTERNATIONAL-DRAINAGE BASINS .15, 63 (A. Garretson, et

al. ed. 1967).

The-benefit Karma receives from the unrestricted pollution

does not.counterbalance'the serious .damage done to New Helios'

environment. New Helios faces the loss of a natural source of

 drinking water, the recreational .use of its beaches, and the con-

tinued economical operation of .one of -its major industries.

Karma may assert that its fragile development policy cannot be

burdened with pollution control.. Any benefit .Karma receives,

however, is -only-temporary, since early and effective -pollution

control measures are immediately necessary if global prosperity

is.to.be sustained. W. VERWEY, .ECONOMIC DEVELOPMENT, PEACE AND

INTERNATIONAL.LAW 314 (1972). The developing countries should

attempt .to-.avoid the worst-environmental problems that accompany

industrial development.: See United Nations Conference on the

Human Environment, Development and Environment, Stockholm, U.N.

Doc. A/CONF. 48/10 (1971).

Professor Goldie has developed another basis for holding

Karma liable under an application of equitable principles. Since

any industrial.development involves the possibility of injury to

those who come into contact with the operation, an enterprise

should be responsible.for the risk it .creates:

To exonerate such an enterprise would have the effect .of en-

abling it-to -conduct its operations at the expense of others
and.throw-.a valid operating cost onto-the shoulder of its
neighbors, or onto those .of the ultimate consumers of its
products or services. Professor Cowan has aptly called the
emerging judicial policy which gives recovery under these
conditions "the policy of [viewing a] deliberately created
risk as [an] expropriation.

Goldie,. Liability for-Damage and-.thed.rogressive Development of

International Law, 14 INT'L &.COMP. L.Q.. 1189, 1212-13 (1965).

Karma's practice of shifting its-environmental costs and risks to

-another riparian -destroys New Helios. interest in an -unpolluted

river system and thereby expropriates.that interest -without any

 form of compensation.

III. KARMA IS OBLIGATED UNDER INTERNATIONAL LAW TO MAKE REPA-

RATIONS FOR THE-DAMAGES TO THE'.TERRITORIAL ENVIRONMENT
"* OF NEW HELIOS.

-. -"It is a .principle of international law that .the, breach

of an engagement involves an.obligation .to make reparation in an

adequate form..". Chorz6w Factory.Case (Jurisdiction), [1927]

P.C.I.J., ser. A, No. 9, at 21. Karma's :illegal conduct has pro-

duced a complex array of effects that demand various types of re-

lief. The principle requirement is that-reparations must elimi-

nate all consequences of the illegal act .and restore the status

quo. Chorz6w Factory Case (Merits), [1928] P.C.I.J., ser. A, No.

17, at 47.

A.. The..Court should Airect Karma .to pay compensation to

-.. New..Helios for damages :.caused by the illegal dis-
.. .charge of wastes-.into.the-Peace River.

Reparations may-include monetary compensation-for injur-

ies. Chorz6w Factory Case-(Merits)., supra at 27-28. New Helios

has suffered material damages to property.and to health as a

direct .result of Karma'v.s illegal conduct. In conformance with

its practice, the Court should establish that compensation is due

and, in a subsequent.phase- of.these proceedings, receive evidence

and -determine .the amount of .damage... Fisheries Jurisdiction Case

*.(Federal Republic of Germany. v..-Iceland), [1974] I.C.J. 175, 204.

1. The damage in .the form of.water purification ex-

penses is compensable.
Under-international law injuries to or destruction of

property are compensable. See.2 M...WHITEMAN, DAMAGES IN INTER-

NATIONAL LAW 1413 [hereinafter cited as .WHITEMAN]. Particularly

 when pollution -to -the environment has caused damages, .tribunals

have awarded compensation. . Trail: Smelter- supra at 1905.. New

Helios' expenses for-water purification -are-the measure .of the

compensation requited -for the injury .to -NewHelios' property in-

terest in the use of her waters.

Neither New Helios' lack--f protest or notice to Karma

nor her action in undertaking to install the purification equip-

ment estops her from .presenting this claim. Estoppel operates

only in-cases involving many years of failure to notify. 1 WHITE-

MAN, supra at 244-47. The Court has held as many as fourteen

years does noticreate an -estoppel for failure to give notice.

Serbian Loans -Case, [1929] .P.C.I.J., ser. A, Nos. 20-21, at 37-

39. Nor can installation of the .equipment estop New Helios.

Under the exigencies -of the situation, -ew Helios and the brewery

had no recourse but to protect citizens.and beer customers from

the dangers of polluted waters.

.- 2.. Damage to the health of New Helios' citizens is

-.compensable.
Damages to personal health caused -by breaches of interna-

tional law are compensable. 1 -WHITEMAN,,

.supra at 517. The
causal link between Karma's -conduct-.in allowing .sewage pollution

.of the.Upper.Peace .River and the 1970 typhoid outbreak in New

Helios (R..3).-is clear from the-evidence. The Court may use cir-
cumstantial .evidence to establish the causal connection since .
"the .proof.may'be-drawn from inferences .of fact, provided
they
leave'.no'room for reasonable doubt.'- -.
Corfu Channel Case (Merits),

[19491I.C.J. 4, 18. The causal -relation of a sewage-polluted

 water supply to the incidence .and.spread.of .typhoid fever is well

known. A. McLAUGHLIN, .SEWAGE POLLUTION .OF.INTERSTATE AND INTER-

NATIONAL .WATERS. WITH- .SP.ECIAL REFERENCE .TO -THE SPREAD .OE .TYPHOID

FEVER (Treasury Department Hygienic Laboratory -Bull /-No-. 77,

1911); International Joint Commission, Report, supra at 57.

Moreover, the 1970 outbreak was -the first time that an increase

in typhoid .was.reported in New Helios. (R. 3).. Karma should

compensate New Helios -in an .amounut measured .by the loss to life

and to .earning capacity and ..

the pain -and suffering cf the -citi-

zens affected by the typhoid .fever.. Such compensation .for direct

and .indirect .injuries is well within .the-limits .established by

international law.. C.. EAGLETON, RESPONSIBILITY .OF STATES IN

INTERNATIONAL •LAW.201-03 (1928).

3... The Court-.should .direct -Karma. to .cease..and..refrain.

.''.from its -illegal: discharge-.of wastes into -the.-Peace
.River.
.- -.- . -

Although New Helios requests .monetary compensation for

material injuries suffered as a result of Karma's-conduct, mere

demand for compensation or .restitution cannot remedy certain con-.

sequences .of illegal acts. ..

Denunciation of the Treaty of .Novem-

ber 2, 1865,.between China andBelgium, [1927] P.C.I.J., ser. A,-

No. 8, at 7. In particular, liabilities -for interference with

water rights enjoyed by a neighboring state may-not be susceptible

to pecuniary relief.. Arechaga, su2ra at 566. In these situa-

tions, the International Court of .Justice may. declare .the ongoing

obligations of the .litigants-.under.international law. Northern

Cameroons-.Case, [1963] .IC..J..37; Interpretation of Judgments Nos.

7 and 8 (The .Chorz6w.Factory), (1927] .P.C..I.J., ser. A, No. 13,

at 20. The judgment.of an international tribunal may .assume the

character of an injunction where pollution of the environment by

one state will cause future .injuries to .a neighboring state.

Trail Smelter, .supra at.1966.

1. The Court should declare Karma bound to take all

reasonable measures to prevent pollution at the
. paper mill site.
a. Continued pollution will necessitate further
expense to purify the waters.

In addition to the considerable expenses already incurred

to purify.the waters, continued pollution will force New Helios

to bear .adocumented expense of $2,000,000 for further purifica-

tion. (R. 3). M4oreover, the brewery may have to develop a.new

source-of water for .the production of its beer.

The untreated sewage from the shanty town is deleterious

to the coloration, odor and taste of the water. In addition,

effluent from pulp and paper mills contains suspended solids and

dissolved .organic and .inorganic compounds--fibres and fibre de-

bris, -china .clay, titanium dioxide, and aluminum sulfate, among

others..-Economic Commission for Europe, .2 Economic.Aspects of

Treatment and Disposal of.Certain.Industrial Effluents 26, 86,

U.N. Doc..WATER .POLL./Econ./6 (1967). These affect the water's

taste, color and odor, and eventually cause an oxygen deficiency,

which eliminates the-natural decomposition process of organic

wastes by which-all waterways purify themselves. Id. at 26. The

combination of.industrial wastes and .sewage.tends.toinhibit the

natural.process.of-self-purification in the waters, compounds the

pollution .problem, and makes necessary ever-increasing purifica-

tion.measures.
 b. Continued .pollution will .endanger .the.health
of New Helios.
"The most .serious result .of water .pollution is .the .threat

to health that it causes, which alone .makes .it .essential that hu-

man .and.industrial wastes -be.effectively treated.'" WORLD HEALTH

ORGANIZATION, WATER POLLUTION .CONTROL -IN DEVELOPING COUNTRIES 8

(Technical Rep. Ser. No. 404, -1968) .[hereinafter cited as WHO,

- WATER.POLLUTION.. The presence of untreated .sewage .and.other

organic wastes .in water increases -the bacteriological concentra-

tion associated with the .cause and spread of such.diseases as

typhoid,.cholera, and bacillary dysentery.. Id..at-9; Interna-

tional.Joint.Commission,.Repor.t,.supra at.57-58. In addition,

"at some time.almost.any-virus could be transmitted through wa-

ter," causing infectious hepatitis, viral gastroentritos, and

diarrhea, among other things. Mosely, Transmission of Viral Dis-

eases -by Drinking-Water, inTRANSMISSION-OF VIRUSES.BY THE WATER

ROUTE.5 (G. Berg ed'. 1965). The danger of -disease is especially

prevalent when .polluted waters are used for human consumption.

WORLD.HEALTH.ORGANIZATION, INTERNATIONAL-.STANDARDS FOR DRINKING

WATER.14- 15.(19.63)-. -Not only is .the health of the citizens of

New.Helios .in .danger, but a .substantially greater peril to health

* exists .in.developing countries,' such as Karma, as .a.result of.

polluted..water.. WHO, WATER POLLUTION-,.supra at 9.

c. Continued pollution will adversely affect

.-. property values-and -the-recreational use
....and.ecology -of -the.waters.

The .undesirable
-... effects.of polluted water will diminish

the.value .of.beaches -and-waterfront .property.for several aesthetic

 and health .reasons. .Great economic losses will result from con-

tinued pollution .of.the waters running into International Lake

and.Lower Peace River.: See.International Joint.Commission, Re-

port,.sura-at 17.-In addition, continued pollution will inter-

fere with.the -variousrecreational uses of.the .waters by the

citizens.of.New.Helios.

Continued.pollution will also have.far-reaching.harmful

effects upon.the.ecological balance.in.the.waters.of International

Lake and Peace River. The polluting-effluents kill many aquatic

plant.and .animal .species, and, by .lowering the levels of oxygen

in -the:waters, endanger others.. A. KNEESE & B. BOWER, MANAGING

WATER.QUALITY-.ECONOMICS, TECHNOLOGY, INSTITUTIONS 17-29 (1968);

see.2.L. KLEIN, .RIVER.POLLUTION 22-109 (1962). One serious con-

sequence.of pollution -by organic substances -is entrophication--

the rampant .growth of algae and aquatic plants, which can .ulti-

mately lead .to death of all lifeforms. -Lakes are particularly

susceptible.to entrophication.. Jackson, .The-Dimensions-of-Inter-

national.Pollution, 50 ORE. L. REV..236 (1971) [hereinafter cited

as-Jackson].

.-
- d.- Reasonable measures of waste.-treatment -at the
mill site could prevent.continued pollution.

...... Karma's .economic.position.possibly-.militates against the

most -obvious.solution--complete-cessation-of waste discharge into

the.Upper Peace-River.-In light of -the substantial likelihood of

serious .future.harm, however, the :Court should order Karma to take

immediate .steps .to.reduce the amount.of .untreated.discharge from

the mill .site.. Long term measures should encompass remedial leg-
 islation, government .subsidy of the .private interests involved,

and-preparation of .aplan for.submission-to.international.lending

agencies--!all.aimed at eventual construction.of suitable waste

treatment.facilities. -The Court may determine-specific require-

ments at .a.subsequent.phase..of .these .proceedings.

2. The Court should.declare Karma.bound.to take all

.-....reasonable.measures .to prevent .harmful .discharge
.-. .at the nuclear power plant.

S. a.- Effluent from the plant will necessitate

great expense by the brewery.

.If the Court .permits full capacity operation of the nu-

clear .power plant, Lower.Peace Brewery must either install cool-

ing lagoons at an expense of $900,000 or find a new supply of

- water.. (R. 4). As a private-enterprise within the state of New

Helios, the brewery-has a.right to the use of the.territorial wa-.

ters pf New.Helios,.and the Court should prohibit any illegal

interference with that-use.

-. .b. Effluent from the plant will adversely affect

.. property values and the recreational use and
ecology of the waters.
...... Thermal.pollution can.not only conflict with specific uses

.of-the.watersi.but.it is detrimental to the.entire ecology of a

river basin.. Hawkes,.Ecological -Changes .of-Applied Significance

.Induced by.the.Discharge of Heated.Waters, in ENGINEERING ASPECTS

OF .THERMAL POLLUTION 16-18 (F. Parker & P. Krenkel eds. 1969).

.The most.harmful effect is the reduction of the water's oxygen

content, .which.slows downwaste assimilation rates -and compounds

. . .all pollution.problems. Id. at-51. In addition,.thermal pollu-

tion.kills fish .and accelerates.eutrophication.which can lead to

 destruction of-.all aquatic life. .Jackson, supra at 236. Thermal

pollution,.thereby, directly and indirectly.tends to diminish

waterfront.property values .and .interfere with recreational uses

of the .waters;

c. Effluent from .the.plant could .reasonably be

- prevented from harming New Helios and its
environment.

.Since Karma has a substantial investment in the .nuclear

.power plant and,.therefore,.is.unlikely to move it, and since

thermal .pollution.has serious environmental .effects, the most

.. efficient way .to .solve the problem is to cool the effluent before

it enters.the .Lower Peace River...Karma.could use several-meth-

ods,.including .cooling towers and .cooling lagoons. Alternatively

Karma.could .channel the effluent.away from its present outlets

for.discharge downriver from the brewery..or for .irrigation of the.

plains .around the .capital of .Karma. -(R. 4). - . The Court should

order .Karma not to put.the power. plant into full operation until

Karma .makes available -facilities for -rendering the -discharge

...
harmless..to.the interests of.New Helios.

.. G.- The .Court.should.declare that both states have -a duty

..... to negotiate an equitable regime for'.regulating
---legitimate-uses of-the-.waters.

.The-.conflicting interests.which appear.in this dispute

will.surface .again, .NewHelios therefore requests that the Court

.recognize .the .existence of a .customary:obligation "to consult and

.to negotiate-in.good faith with co-basin states that .object to a.

.....proposed work.or .utilization of waters on the ground that it might

cause serious injury." Bourne, Procedure -in the Development of

International Drainage Basins: The Duty to Consult and to .Nego-

 tiate, .10 CAN. Y.B. INT'L L. 233.(1973). The Institute of .Inter-
national .Law.has .recognized this -obligation, .49 ANNUAIRE DE

L'INSTITUT.DE.DROIT INTERNATIONAL, Tome.II, at.383 (1961), and it

is embodied .in .Articles 3134 .of .the Helsinki Ruies, which repre-

sent.obligatory .customary law. .Kulz, Further Water Disputes Be-

- tween..India..and-.Pakistan, .18 .INT'L 4.COMP. L.Q. .734.(1969)..

..Recognition of this duty .would also .be.consistent with .the Court's

judgment .in .the .Fisheries Jurisdiction Case involving a .similar

. conflict.of.interests;.the Court held that-all parties had.a duty

to.undertake good faith negotiations to.settle their differences.

- Fisheries-.Jurisdiction Case..(United- Kingdom v.-Iceland).-(Merits),

[1974].IC.J..3,.34-35. In the.present.situation, the.parties

should.exercise .the duty with .the goal .of establishing .an equita--

ble.regime for.regulating the-use of.the-waters.involved.

IV. THE COURT-SHOULD INDICATE.INTERIM MEASURES.TO-PROTECT NEW

...... HELIOS PENDING FINAL JUDGMENT.

The.average.duration.of contentious.cases.before this

.Court.is.550.days, and.the Trail.Smelter arbitration lasted

. nearly four .years.. See Gross, The Time Element .in the Conten-

tious -Proceedings .in .the International .Court of .Justice,..63 AM.

.J.INT'L .L..74,.79, 83.(1959). Since.subsequent phases .of these

* proceedings.may be required to-settle.the question of compensation

for.injuries,.New.Helios requests that the-Court indicate interim

..measures of protection-to safeguard the.interests of New Helios

.and her -citizens,-pending final .decision.in.this:case.. I.C.J.

STAT. art.-41;.I.-C.J..RULES, art. 61.

The Court.has indicated interim measures-of protection on

 several occasions, e.g., Fisheries Jurisdiction Case (Interim

Measures .of.rotection), [1972] I.C.J..12; Anglo-Iranian Oil Co.

Case-(Interim 2easures of Protection).,.[1951] I.C.J. 89. Most

recently, .in.the.Nuclear Tests Case-(Australia -v...Erance)..(Inter-

imMeasures.of-.Protection), [1973] I.C.J. 99, the Court indicated

interim measures in .a situation-where .the.health.and.safety of

Australias.citizens.were endangered .because of .the serious en-

.vironmental-.consequences.of.France's.actions. Id. at 104. The.

.Court.ordered that '!the French Government .should avoid.nuclear

tests.causing.the.deposit.of radio-active fallout on Australian

territory.' Id..at 106.

.The.illegal-pollution will have .serious and irreparable

effects upon.the health of New.Helios' citizens, property values,

recreational uses.of the.waters, and the-ecology of the terri-

torial waters .of New .Helios. .In the -immediate future, if pollu-

tion.is.notabated, New Helios will incur.a $2,000,000-expense

for.water..purification,.and -the.Lower..Peace Brewery will incur a

$900,000.expensefor.cooling-lagoons. -In addition,.the Court

should.consider-:the.beginnings.of-economic aggression by Karma

and the justifiable response by the citizens of New Helios in the

- form of.consumer.-boycotts. (R. 5). .This situation frustrates

the.purposes.of.the 1923 Treaty.and contravenes the United Na-

.. tions-Charter.and customary.international law. U.N. CHARTER,

art .l, paras..2, 3, art. 2, para. 2, art. 55; G.A. Res. 2625,

.25 U.N..GAOR, .Supp. 28, at 122-24, U.N. Doc. A/8082 (1970).

these reasons the Court-should indicate -the following

For-..

interim-measures of protection: First, the Court.should order

 Karma not-to increase the level of operation of .the nuclear power
plant; second, .the Court should order Karma to take immediate

steps to .reduce .the -level of industrial -and human waste .discharge

.at-the paper mill site; third, the Court should order Karma to

ensure that-no .action of any kind is taken which might aggravate

or extend .the .dispute or prejudice the rights of New Helios.

CONCLUSION
Wherefore, for the reasons set forth above, Applicant re-
spectfullyprays that the International Court of Justice render

its decision in favor of New Helios, finding that: (1) Karma has

breached.the 1923 Treaty by allowing the-discharge of wastes into

the Peace-.River .system. (2) The-discharge -of wastes violates

general principles of international law. (3) Karma must pay com-

pensition .to New Helios, cease and -refrain its illegal activi-

ties, and -undertake good-faith negotiations with New Helios.

(4) Interim measuresare warranted, .pending final judgment,

Respectfully submitted,

George L. Flint, Jr.

Daniel J. Foucheaux, Jr.

Michael G. Mullen

CERTIFICATE
..We .certify that this Memorial complies with the 1975

Rules-.of-this competition.

George L. Flint, Jr.

Daniel J. Foucheaux, Jr.

Michael G. Mullen
 APPENDIX

1923 TREATY OF AMITY, FRIENDSHIP, AND ECONOMIC COOPERATION

:Article I

In order to carryout the purposes and objectives of this Agree-

ment, the States of Karma and New Helios agree to cooperate and
consult with one another as appropriate on matters of mutual in-
terest.

Article II

Paragraph I.. Both States agree that in keeping with the general
aim of amit friendship and economic.cooperation, neither State
shall pollute:boundary waters or other waters running between
them so as to injure the health or property in the other State.

Paragraph .2. In furtherance of this responsibility the parties

undertake to enter into specific arrangements as appropriate.

Article III

The Lower.Peace River shall be open to the ships of both States,

and navigation shall not be impeded or unreasonable conditions
placed thereon, unless a situation arises in which either State,
upon notification to the other, believes that-health and safety
require the imposition of such conditions.

Article IV

Paragraph 1. Disputes between the two States shall be settled

amicably and equitably with full regard to the purposes and
principles set forth in this Agreement.

Paragraph 2. Upon.the request of either State, both States agree

that questions arising under.this Agreement which have not been
settldd within a reasonable time may be brought to arbitration,
each State choosing one arbitrator and the remaining arbitrator
to be agreed between them or, if agreement is not reached within
a period of six months from the date-of the selection of the two
other arbitrators, such third arbitrator shall be'selected by the
President of the Permanent Court of International Justice.

Paragraph 3. At the time a request for arbitration is made, or at

any time before the arbitration commences, either-State may re-
quest that the dispute be submitted to .the Permanent Court of
International Justice or to a special chamber of that Court. The
agreement of the other State shall first be obtained before sub-
mission is made ..
to the Court.
 THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION

1975

The Peace River Basin Case,

New Helois v. Karma, 1975.

Best Written Memorial

(Respondent)

National Award University of Texas School of Law #26

 NO. 1975

IN THE
INTERNATIONAL COURT OF JUSTICE-AT THE PEACE PALACE
THE HAGUE, NETHERLANDS

THE STATE OF NEW HELIOS,

Applicant

THE STATE OF KARMA,

Respondent

APRIL TERM
1975

On Submission to the
International Court of Justice

COUNTER-MEMORIAL FOR THE RESPONDENT

George L. Flint, Jr.

Daniel J. Foucheaux, Jr.
Michael G. Mullen
April 26, 1975 Agents for Respondent
 TABLE OF CONTENTS

Page

Index of Authorities .......... iii

Jurisdiction . . . . . . . . . . . . . .i........ 1
QuestionsPresented . . . . . . . . ............ 2

Statement of Facts .............. . 2

Summary of Argument . . . ......... ..... 5

Argument and Authorities .................. 6

I. KARMA'S ACTS HAVE NOT BREACHED -THE 1923 TREATY.

WITH NEW HELIOS . ...... . o 6

A. The Treaty objectives of amity, friendship,

and economic cooperation include the right.
of the underdeveloped Karma to develop its
resources without undue restraint ....... 6

B. The ordinary meaning of the Treaty permits

thermal discharges by Karma's nuclear power
plant into the Lower Peace River ....... 8

C. The ordinary meaning of the Treaty permits

waste discharges of Karma's paper mill into
the Upper PeaceRiver . . ............ 10
D. The doctrine of rebus sic.stantibus nulli-
fies'the anti-pollution restriction of the
Treaty o o...12

II. THE DISCHARGE FROM THE PAPER MILL AND NUCLEAR

POWER PLANT DOES NOT BREACH.KARMA'S OBLIGA-
* TIONS UNDER GENERAL PRINCIPLES OF: INTERNATIONAL
- LAW.. .. . ....... 13

A. . Under the principle of state sovereignty

international law does not recognize lia-
bility where a state's use of its natural
resources affects another state. . . . . . . . 13

B. The principle of equitable utilization per-

mits the discharge from Karma's paper .mill
and nuclear power plant ...... ........ 16
 ii

Page
III. KARMA IS NOT OBLIGATED UNDERNATIONALLAW TO
MAKE REPARATIONS TO NEW HELIOS FOR THE EFFECTS
OF THE DISCHARGE INTO THE PEACE RIVER . . . . . . .19
A. No compensable damages have been suffered
- by New Helios under international law . . . . . . 20

1.- Purification expenses incurred by New

Helios and Lower Peace Brewery are
not compensable ............ 20
2. The outbreak of typhoid fever in New
Helios is not.a compensable damage . . . . . 22

3. Future expenditures for water cooling

. and purification are not compensable . . . . 24

B. No future restrictions on Karma's conduct

are warranted under international law ........ 24

1; The 1923 Treaty contemplates no prohi-

bition of.Karma's conduct in present
circumstances ................... 25
2. The existing customary regime does not
prohibit the discharge of wastes into
the Peace River ..... ............... .25
3. Even if existing conventional .and cus-
tomary international law permits an
order enjoining Karma's discharge of
wastes, no present or future damage to*
New Helios warrants.it ..... ........... 26
C.. Except under.the 1923 Treaty, Karma has no
duty under international law to negotiate
a regime for regulating the -use of bound-
ary waters ....... .................... 27
IV. THE COURT SHOULD NOT INDICATE INTERIM MEASURES
.OF PROTECTION DIRECTED AT KARMA, PENDING FINAL
JUDGMENT . ........................... 28

Conclusion . ........ . . . .. . . . . . ..... 29

Certificate ............ ........... 30

 INDEX OF AUTHORITIES

Page

Treaties

Treaty between the Dominican Republic and Haiti, 105

L.N.T.S. 216 (1929) . . . .......... . . . 9

Treaty between Germany and Lithuania, 89 L.N.T.S. 337

(1928) . . . . . . . . . . . . . . . . . . . . . . .9

Treaty Relating to Boundary Waters and Questions Aris-

ing Between United States and Canada, Jan. 11,
1909, 36 Stat, 2448; T.S. No. 548 ............. 10

U.N. CHARTER, art. -55, para. a .............. ...... 6

Cases.
. . . . . .. . . . . . . 15
Asylum-Case, [1950] I.C.J. 26 6 . .

Certain German Interests in Polish Upper Silesia, [1925]

P.C.I.J., ser. A, No. 6 .............. 24

Chorzow Factory Case (Indemnities), [1927] P.C.I.J.,

set. A, No. 12...... ......... . . . . 28

Chorzow Factory Case (Jurisdiction), [1927] P.C.I.J.,

ser. A, No. 9 ....... ................. 9, 10

Chorzow Factory Case (Merits), (1928] P.C.I.J., ser. A,

No. 17............. . . . . . . . 24

Corfu Channel Case (Merits), [1949] I.C.J. 4 . .......... 22

Denunciation of the Treaty of 1865 Case, [1927] P.C.I.J.,

set. A, No. 8 ...... ............ 28

Fisheries Case (United Kingdom v. Norway), [1951] I.C.J.

116 . . . . . . . . . . . . . ... . . . . .. . 15, 19

Fisheries Jurisdiction Case (Federal Republic of Germany

v. Iceland) (Merits), (1974] I.C.J. 175 ...... 20

Fisheries Jurisdiction Case (Jurisdiction), [1973]

IC.J. 3 .. ...... ... ........ 6

Fisheries Jurisdiction Case (United Kingdom v. Iceland)

(Merits), [1974] I.C.J. 3 .............. 15, 19
 iv

Page
Jaworzina Case, [1923] P.C.I.J., ser. B, No. 8 ... ...... 7
Lac Lanoux Arbitration (France v. Spain), 24 I.L.R.
101 (1957) . .... 8

Maninat Case (1905), Report of the French-Venezuelan

Mixed Claims Commission of 1902 (Prepared by
J. Ralston 1906) ....... ...... 22

Mavrommatis Jerusalem Concessions Case, [1925] P.C.I.J.,

ser. A, No. 5 ........ . . . . 20
North Atlantic Coast Fisheries Case, Hague Court Re-
ports (Scott) 143 (Perm. Ct. Arb. 1916) ....... o 10
North Sea.Continental Shelf Cases, (1969] I.C.J. 3 . . 12, 15
Nuclear Tests Case (Australia v. France) (Interim
Measures of Protection), [1973] I.C.J. 99 . . . . . 28

Responsibility of Germany for Acts Committed after

July 31, 1914, and before Portugal Entered
the War, 2 U.N.R.I.A.A. 1040 (1930) ........ 22
Second Membership Case (Advisory Opinion), [1950]
I.C.J. 4 .......... ..................... 6
Southwest Africa Case, Second Phase, (1966] I.C.J. 4 . . . 24

S.S. Lotus Case, [1927] P.C.I.J., ser. A, No. 10 . 11, 14, 15

S.S. Wimbledon Case, [1923] P.C.I.J., ser. A, No. 1 . 7, 9, 10

Trail Smelter Arbitration, 3 U.N.R.I.A.A. 1905

(1941) ...... ................ . 16, 21, 24, 26

Treatment of- Polish Nationals in Danzig Case, [1932]

P.C.I.J., ser. A/B, No. 44. . .......... 9, 10

United States-Germany Mixed Claims .Commission Admin-

istrative Decision No. II, 7 U.N.R.I.A.A. 23
(1923) ....... ...................... 22

United States Nationals in Morocco Case; [1952]

I.C.J. 176 ...... ...................... 6

Treatises and Digests

F. BERBER, RIVERS IN INTERNATIONAL LAW (1959) ........ ... 16

H. BRIGGS, THE LAW OF NATIONS (1952) .............. 14, 15

 V

Page

B. CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY

INTERNATIONAL-COURTS AND TRIBUNALS (1953) . .. . . 20

THE INTERNATIONAL LAW OF POLLUTION (J. Barros & D.

Johnston eds.. 1974) ................ 16, 24

H. MALMGREN, INTERNATIONAL ECONOMIC PEACEKEEPING IN

PHASE-II (1972) ... . .............. .... 18

A. McNAIR, LAW OF TREATIES (1961)....... ........... .. 11

G. OHLIN-, FOREIGN AID POLICY RECONSIDERED (1966) .. . . . . 18

1 L. OPPENHEIM, INTERNATIONAL LAW (8th ed. H. Lauter-

pacht 1955) ................... .. 14

2 S. ROSENNE., THE LAW AND PRACTICE OF THE INTERNATIONAL

COURT (1965) ....... ................... .... 20

I. TAYLOR & J. KNOWELDEN, PRINCIPLES OF EPIDEMIOLOGY

(1957) ..................... ... 23

W. VERWEY, ECONOMIC DEVELOPMENT., PEACE AND INTERNATIONAL

LAW (1972) ........ .................... .. 19

WATER AND.WATER RIGHTS (R. Clark ed. 1967) . ...... . 20, 27

M. WHITEMAN, DAMAGES .IN INTERNATIONAL LAW. (1937) . ... 21, 24

C. WINSLOW, MAN AND EPIDEMICS (1952).... ............ . 22

Journals

Bains, The Diversion .of International Rivers, 1 INDIAN J.

.INT'L L. 38 (1960) .... ................ 14

Bourne,. Pollution of International Rivers and Lakes,

21 U. TORONTO L.J. 193 (1971)........ ....... 17

Bourne, The Right to Utilize the Waters of International

-. Rivers, 3 CAN. Y.B. INT'L L. 188 (1965) ....... .. 20

Comment, Thermal Discharges: A Legal Problem, 38 TENN.

L. REV. 369 (1971) ............... ........ 8

Goldie, International Principles of Responsibility for

Pollution, .9 COLUM. J. TRANSNAT'L L. 283 (1970) . 14

Jackson,- The-Dimensions of International Pollution, .50

OREG.-L. REV. 235 (1971) .... ............. . 27
 vi

Page

Rubin, Pollution by Analogy: The Trail Smelter Arbi-

tration, 50 OREG. L. REV. 259 (1971) . ...... 16

Utton, International Water Quality Law, 13 NATURAL.

RESOURCES J. 282 (1973) 17

Yn:tema., The Treaties with Germany and Compensation

for War Damage, 24 COLUM. L. REV. 153 (1924) . . . 21

Miscellaneous

I.C.J. STAT. art. 36 . . ................. 1

I.C.J. STAT-. art. 37 .......... ................... 1

I.C.J. STAT. art. 41 . . ................ 28

I.C.J. STAT. art. 61 ....... ................... . 28

INSTITUT DE DROIT INTERNATIONAL, 49 ANNOAIRE (1961) . . . . 28

International Joint Commission (United States and

Canada).,. Report on the Pollution of Bound-
-ary Waters (1951) ...................... 23
INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FIFTY-
SECOND CONFERENCE, HELSINKI: (1966) . . . . 16, 17, 18

INTERNATIONAL LAW ASSOCIATION, REPORT OF THE FORTY-

. . EIGHTH CONFERENCE, NEW YORK (1958)... ....... ... 17

Manner-,: Water, Pollution in International Law, U.N.

Doc, WATER POLL./CONF./12 (1960) .. ......... . 15

A. McLAUGHLIN, SEWAGE POLLUTION OF INTERSTATE AND

INTERNATIONAL WATERS WITH SPECIAL REFERENCE
TO THE SPREAD OF TYPHOID FEVER (Treas. Dep't
Hygienic.Laboratory Bull. No.. 77, 1911) ....... .. 23

21 OP..ATT'Y GEN. 274 (1895) ........ ............. . 14

21 U.N. ECOSOC 5, U.N. Doc. E/3066 (1958) .. ......... ... 18

United Nations Conference on the Human-Environment,

Development and Environment, U.N. Doc..
A/Conf. 48/10 (1971) ..... ............... ... 18

Vienna Convention on the.Law of Treaties, U.N. Doc.

A/Conf, 39/27 (1969). ............. 6, 7, 12.
 vii

Page

WORLD HEALTH ORGANIZATION,- WATER POLLUTION. CONTROL

IN DEVELOPING COUNTRIES -(Technical: Rep. Ser.
No. 404.,: 1968) . . .. . . . . . 0
- 23
 NO. 1975

IN THE
INTERNATIONAL COURT OF JUSTICE

THE STATE OF NEW HELIOS,

Applicant

Vo

THE STATE OF KARMA.,

Respondent

APRIL TERM
1975

COUNTER-MEMORIAL FOR THE RESPONDENT

JURISDICTION

Karma and New Helios have agreed to submit their dispute

to the International Court of Justice under paragraph 3 of Arti-

cle IV of .the 1923 Treaty of Amity, Friendship and Economic Co-

operation. The Court may hear the case pursuant to Article 36 and

Article 37 of the Statute of the :International Court of -Justice.

I.C.J. STAT. art. 36, para. 1; art. 37.

 QUESTIONS..PRESENTED

I.; WHETHER ..
THE MISCHARGE OF.WASTES INTO .THE -UPPER AND: IOWER
PEACE RIVERS- .CONSTITUTES A BREACH -OF .THE 19.23. TREATY FOR
WHICH KARMA .IS RESPONSIBLE.

-1 . .. -WHETHER .THE DISCHARGE OF. WASTES, INTO -THE .UPER AND. 1OWER
PEACE -.RIVERS .CONSTITUTES A .BREACH -OF .P.RINCIP.LES OF .INTER-
NATIONAL -.LAW .FOR WHICH KARMA-.IS RESPONSIBLE.

.... III. -.WHETHER .KARMA; IS OBLIGATED ..TO. MAKE REPARATIONS TO NEW

., HELIOS.

IV-. WHETHER THE COURT SHOULD INDICATE :INTERIM MEASURES OF

.: .- PROTECTION.

STATEMENT .OF-FACTS.

The Upper -Peace River,. situated wholly within the .sover-

eign -territory of the state of Karma,. flows into .the Internation-

al Lake, which borders .Karma .on the -south .and .the -State of New

Helios .on the .north.. The Lake empties into the Lower -Peac-e River

which runs along -the boundary .between-the -two .States before re-

entering .Karma-and .emptying into .the .ocean.- (-See map.)

.Ten years .ago -a -private-company in Karma, -on the -recom-

mendation .of the -World Development Authority (WDA)., opened a.

large pulp -and paper mill on .the shores of .the Upper .Peace. The

mill .has been -avital .contribution.to the development of .Karma's

northern .Wilderness.Region.. -The .WDA-further-recommended that the

mill .company construct pollution control .devices to treat the

wastes from .the.mill and the raw .sewage from .the surrounding

shantytown, but to date this has-proved .to be financially impos-

sible. The .company has promised to begin providing suitable

housing .to alleviate the sewage .as soon .as .possible, .but no action

has -been -taken.. Since its-construction the mill complex .has dis-

. charged wastes and sewage into the Upper Peace.. .For.many..

years
 International Lake has been-the source-of drinking water.for New

Helios-capital, but othe mill effluents'have made.the water un-

drinkable-.without prior purification. The Lower Peace Brewery, a

major .industry in-New Helios,. uses .the water-in the-.production of

beer and ale. Both.the State-of New Helios and .the Brewery have

already.purchased .purification equipment; .if .the pollution becomes

more serious, New Helios will have .to install further .devices at

a cost of-.$2,000,000, and the brewery may have to seek a new wa-

ter source...In addition, in 1970 reports of an increase of

typhoid forced .the .closing .of .the.beaches around New Helios'

capital.

.... -n .iR70,. without .any notification to New Helios,. Karma

began :constructing a huge nuclear power plant at the mouth of the

* Lower Peace River.. The plant, a state-owned corporation, was

.constructed .to meet -energy needs In !Karma'-s capital, located

about.ten miles .to the south. In May of 1974, the plant began

..
operation.at .ten percent-capacity, emptying heated water used

for.cooling into the-river. At that time some.of the .citizens of.

-New Helios -and .the brewery protested that the heated water would

affect their uses of the river. If the plant becomes fully opera-

tional, .the brewery will be forced either to install cooling

lagoons at a cost of $900,000 or to seek a new water source.

New -Helios made-several protests concerning the power.

plant .to .the.Government of Karma,.and Karma .replied by asserting

her sovereign-right .to develop in .any manner -she -chooses. Not

until July-of-1974 did .NewHelios .lodge .aformal protest,.stating

that .the .discharge into the Peace River system violates the 1923
 4

Treaty of Amity, Friendship and Economic Cooperation (Appendix).

Karma refuses to acknowledge any violation; citizens groups in

both countries are threatening boycotts.

Karma and.New Helios have agreed to submit the dispute to

the International Court of Justice pursuant to paragraph 3 of

Article IV of the 1923 Treaty. Defenses of sovereign immunity

has
and exhaustion of local remedies have been waived; the Court

granted the request that a three-judge chamber hear the case.

 SUMMARY OF ARGUMENT

Karma.has not breached the 1923.Treaty with New Helios.

Development of Karma's resources is in.accord with the Treaty's

stated purpose. .The .ordinary meaning .of the .Treaty's language

doesnot forbid.discharge of wastes from the mill and power

plant. Moreover, the doctrine .of rebus sic .stantibus nullifies

the.anti-:pollution provision.

..Karma has-not .violated general-principles of international

law by allowing the-discharge from the mill and power plant.

Under the principle of state sovereignty .and the Harmon-Doctrine

states.are .not.liable for the consequences of their use of inter-

national rivers. Even if the Harmon.Doctrine is not customary

international law, New Helios cannot prove that any other rule of

customary..international.law restricts Karma's use -of her terri-

torial waterways. If such use is.restricted .by customary inter-

national law, it must-.be through an application of the doctrine

of-equitable utilization. The discharge from the mill and power

plant are-.equitable uses under international law.

- Krma is not .obligated .to make reparations to New Helios.

New-Helios cannot-prove that she has suffered any material dam-

ages.for which compensation is required. The Court should not-

order.Karma to.cease and.refrain from discharging wastes into the

Peace-.River.... There is no general duty to negotiate a regime for

the disposal of wastes in the Peace River system.

• - The Court should not indicate interim measures of protec-

tion pending-.final...udgment. Any such measures that the Court

might indicate would have-the effect of a judgment, and would not
preserve the .rights of Karma. Moreover, an order requiring abate-

ment. or cessation of .waste .discharge would cause. great ha~rdship

toKarma and her-citizens.

ARGUMENT AND AUTHORITIES

I. KARMA'S ACTS HAVE NOT -BREACHED THE 1923 TREATY WITH NEW
.HELIOS.

Application .of three principles -of treaty interpretation

demonstrates that Karma's.resource development does not .violate-

the anti-pollution provision of the 1923 Treaty. First, the

Court must.interpret the Treaty.in light of its .stated purpose.

United.States Nationals .inMorocco.Case, [1952] I.C.J. 176, 196;

Vienna.Convention on the Law of Treaties, art 31, U.N. Doc.'

A/Conf. 39/27 .(1969). [hereinafter cited as Vienna Convention].

Second, the Court.must..give .the Treaty .terms.their ordinary mean-

ing.... Second Membership Case.(Advisory.Opinion), [1950] I.C.J. 8;

Vienna Convention, art. 31. Third, .the rebus sic stantibus doc-

trine nullifies the Treaty's antipollution provision. Fisheries

Jurisdiction Case (Jurisdiction), [1973] I.C.J. 3,17; Vienna

Convention,. art. 62.

A. .The.Treaty objectives of amity, friendship, and eco-

.nomic,.cooperation.include.-the right of the .under--
developed Karma to develop its resources without
undue restraint.

The-.interpretation of the anti-pollution clause must.

agree with.the.purposes ofthe 1923 Treaty as stated in its title--

to foster amity, friendship, and economic cooperation.. Economic

cooperation .encompasses economic development. U.N. CHARTER, art.

55, .para. a. Two techniques of treaty interpretation .indicate

 the Treaty permits pollution resulting from economic development.

First, the Court may interpret a treaty article by exam-

ining subsequent agreements .between the same parties regarding

its application.. Jaworzina Case, [1923] P.C.I.J., ser. B, No. 8,

at 38; Vienna Convention, art. 31. The United Nations General

Assembly, to which both Karma and New Helios belong, has declared

that "States have the duty to co-operate . . . in the promotion

of economic growth . . . especially that of the developing coun-

tries." G.A. Res. 2625, 25 U.N. GAOR, Supp. 28, at 122-24, U.N.

Doc. A/8082 (1970). Article I of the 1923 Treaty expresses this

obligation (Appendix). Karma uses the Peace River to provide a

higher standard of living for its Wilderness inhabitants and to

support its developing manufacturing industry. In contrast, New

Helios' interpretation of the anti-pollution restriction violates

the purpose of economic cooperation by requiring protective mea-

sures so financially prohibitive as to restrict Karma's develop-

ing industry and threaten the standard of living now enjoyed by

the inhabitants of Karma's Wilderness Region.

Second, the Court uses other provisions of the same

treaty to determine the parties' intent. S.S. Wimbledon Case,

[1923] P.C.I.J., ser. A, No. 1, at 23. Article II contains the

limiting language of "in keeping with the general aim of . . .

economic.cooperation." Article III of the 1923 Treaty prohibits

only unreasonable conditions placed on navigation. By analogy,

Article II prohibits only.unreasonable pollution, inconsistent

with economic-.development. The alternative to Karma's present

use of the.Peace River is the construction of expensive purifica-

 tion and cooling lagoon facilities--neither of which she can eco-

nomically afford to build. The paper mill was constructed upon

recommendation of .the World Development Authority (R. 2), and the

equipment.of the nuclear power plant comes from a .thlrd nation

under .strict .international safeguards.. (R. 3). This demon-

strates .that, consistent with the 1923 Treaty, Karma is develop-

ing economically by the most reasonable means available.

3... The ordinary meaning of the. Treaty permits thermal

. ..... discharges by Karma '.s.nuclear power plant into the
Lower Peace River.

Article II(i) of the 1923 Treaty states that "neither

state shall-pollute . . . so as to injure . . . ." (emphasis

added). Application of the ordinary meaning rule to Article

II(i). reveals that the thermal discharges.comply.

1. The thermal discharges do not constitute pollu-

tion.

The word "pollute" generally peans seriously to contami-

nate water by mixing it with other matter in such a fashion as

to destroy its purity. The addition of heated water to the river

does not change .the river's chemical content or affect its

purity.. It -only adds energy to the river's water, not matter.

Comment, Thermal Discharges: a Legal Problem, 38 TENN. L. REV.

369, 379-80 (1971). In the Lac Lanoux Arbitration (France v.

Spain), 24 I.L.R. 101, 123 (1957), the arbitral tribunal made the

distinction between a change of chemical composition and a change

in temperature by listing them separately.. Chemical discharges

constitute pollution while thermal discharges only hinder the uses

of the .water.
 ..... Analogizing to other treaties-reinforces the ordinary

meaning result.. ...Wimbledon,. supra at 25-28; cf. Chorz6w Factory

Case (Jurisdiction), [1927] P.C.I.J., ser. A, No. 9, at 22. If

New Helios and Karma intended .to include thermal discharges .with-

in the prohibition, they would have used language liiiting the

states to "just. and equitable uses.."' Eg., Treaty between the

Dominican Republic and Haiti, 105 L.N.T.S. 216, 225 (1929).- In-

stead, they used language prohibiting material discharges into

the river..., Treaty between Germany and Lithuania, 89 L.N.

T.S. 337, 361 (1928). The Lac Lanouxtribunal recognized this

distinction between "material discharges" and "equitable uses" by

suggesting that either a change in chemical composition or a

change in.temperature affecting the water's use would have vio-

lated.the ."equitable-use"-treaty involved in that.dispute. New

Helios .and.Karma,.*therefore, intended to exclude "thermal dis-

charges'" from the .prohibition.

2. The thermal discharges do not cause any injury to

health or property in New Helios.

Only pollution that leads to injury violateg the anti-

pollutionprovision. Since the plant has-never operated above,

ten percent of capacity, New Helios has .not yet sustained any in-

jury from the .thermal discharge. Under customary international

law, however, an act.not literally a breach may yet constitute a

breach of .the good faith requirement of a treaty and hence be a

violation .Treatment of Polish Nationals in Danzig Case, [1932]

P.C.I.J., ser. A/B, No. 44, at 28 (discriminatory legislation

breached good faith). A breach of good faith requires the cer-

 tainty of a breach in the future.. See id. The future impact of

operation of the nuclear power-plant is only speculative. Fur-

thermore, only those regulations passed to evade the treaty are

prohibited..:.-.North-Atlantic Coast Fisheries Case, Hague Court Re-

port (Scott) 170 (Perm. Ct.-Arb. 1916). The.thermal discharges

are not.an .attempt to evade the treaty .terms since they are con-

sistent with .the purposes of the Treaty. The plant, therefore,

does not breach the good .faith requirement of the 1923 Treaty.

C:*.-
.The ordinary meaning .of .the Treaty permits waste dis-
charges of Karma's paper mill into the Upper Peace
River.

Article.II(l) of the 1923 Treaty states that "neither

state shall pollute boundary waters or other waters running be-

tween them .... .".(emphasis added)...- Application of the ordinary

meaning rule to Article II(1) reveals that the waste discharges

of Karma'.s paper mill facility do not violate the Treaty's anti-

pollution provision.

.. Boundary waters do not directly receive the

mill's sewage.
The Court may look to analogies in other treaties to de-

termine the meaning of-terms. Wimbledon, supra at 25-28; cf.

Chorz6w Factory (Jurisdiction).,..supra at 22-23. The 1909 Treaty
between Canada and the United States, similar to the 1923 Treaty

between .NewHelios and Karma, defines.boundarywaters as:

the waters . . . of the lakes and .rivers along which the in-
ternational boundary . . . passes .. but not including
tributary waters which in their natural channels would flow
into such lakes [and] rivers ..... or waters flowing from
-such lakes[and] rivers .... . or the waters of rivers flow-
*ing across the boundaryi
Treaty Relating to Boundary Waters and Questions Arising Between
U.S. and Canada, Jan. 11, 1909, 36 Stat. 2448; T.S. No. 548.

In this case,. "boundary waters" include only.International Lake

and a portion of the Lower Peace River. The anti-pollution provi-

sion .of the 1909 Treaty states: "boundary waters and waters

flowing across the boundary shall not be polluted on either side

to the .injury of -health or property on the other." (emphasis

added). In the present situation, the only waters that flow

across .the-.boundary--which is equivalent to "between the two

countries"--is that part of Lower Peace River that bends just be-

fore it .enters Karma. Since the brewery is situated there, it is

likely that .the .parties added these words to cover pollution by

the brewery. Upper.Peace River, on the other hand, neither con-

stitutes boundary waters nor-does it flow "between the two coun-

tries.." The prohibition does not include tributaries entirely

within .one .state such as the Upper Peace River. The mill dis-

charges its wastes into a river not covered by the prohibition.

2. The State of Karma does not participate in the

mill's waste disposal.

The .prohibition:applies only to state action. Prohibited

acts committed-by a state's citizens do not ipso facto involve

their state in a breach. S.S. Lotus.Case, [1927] P.C.I.J., ser.

A, No. 10, at 89. Private citizens own and operate the mill. In

the absence of .a liability provision for breaches committed by

her citizens, a state has only a duty to take reasonable measures

of prevention to ensure that its citizens do not violate the

treaty. A. McNAIR, LAW OF TREATIES -551-(1961). Karma has taken-

such reasonable measures. Since she cannot construct treatment

 facilities herself due .to the huge expense, Karma obtained a prom-

ise from the mill company to alleviatethe sewage problem by pro-

viding modern housing.

.3.,.New Helios .consented to the alleged breach by the

mill.

The Court looks to subsequent actions of a state to inter-

pret treaty provisions. North Sea Continental Shelf .Cases, [1969]

I.C.J. 3,. 251; Vienna Convention, art. 31. For ten years New

Helios never complained. When typhoid occurred in 1970, she

merely closed her-beaches. When the water became nonpotable, she

constructed .purification facilities. The only explanation for

these actions is that the waste discharge by .the mill must not

have violated the 1923 Treaty.

Furthermore, estoppel applies to New Helios' actions. In

customary international law, estoppel by conduct prevents a state

from benefiting from her own inconsistency to the detriment of a

state-who has relied upon the representation. Continental Shelf,

.supra-at-.27; id. at 121-22 (dissenting opinion of Judge Ammoun).

Karma has- relied on the inaction of New Helios to continue her

development-by allocating her scarce capital resources to the

power.plant rather than to purification plants for the mill.

D. The doctrine of rebus sic stantibus nullifies the

anti-pollution restriction of the Treaty.

The rebus sic .stantibus doctrine has five elements.

Vienna .Convention, art. 62. First, the changed circumstances

must be fundamental. Second,. they cannot-result from a breach of

treaty obligations.. Third, the change must be unforeseeable.

Fourth, the change must affect the essential basis of consent.

 Fifth, the change-must have radically altered the treaty obliga-

tions...Karma's situation meets these criteria.

:First, .few changes are more fundamental than those occur-

ring when a poor,.underdeveloped nation with its inhabitants liv-

ing as .hunters becomes a developing nation with industrial .work-

ers. . Second,. these changes did not .result from any breach of the

Treaty:since the mill's waste discharges and the plant's thermal

discharges accompanied the change but did not cause it. Third,

these developmentswere unforeseeable .in•1923 since development

of the Wilderness Region became feasible only after 1955 and

nuclear energy .became feasible only after 1943. Fourth, the pre-

vious conditions were essential to Karma's consent. In 1923,

•Karma!.s .economy was.underdeveloped. Had progress toward a higher

standard-.of-.living at that time depended on the need to discharge

wastes in .the Peace River, Karma would never have entered into

the:anti-pollution agreement. The fact of her underdevelopment

was, therefore, essential to Karnm's.consent. Fifth, the,changes

radically alter the obligations of the parties. Whereas before

the anti-pollution restriction had no effect on Karma, it now im-

poses.a huge financial burden.on Karma at.a time when she cannot

afford it... Thus. the Court.should nullify the 1923 Treaty pursuant

to Articles .62 and .65 of the Vienna Convention, leaving only the

negotiation-.provisions which Karma has admitted are still valid.

II.- .THEDISCHARGE FROM THE.PAPER MILL AND NUCLEAR POWER PLANT

-DOES NOT BREACH KARMA'S OBLIGATIONS UNDER GENERAL PRINCI-
-. PLESOF INTERNATIONAL LAW..

A... 1nder .the principle .of state sovereignty, inter-.

.. national law does.not:.recognize liability where-a
state's use of its natural-resources affects a neigh-
boring state.
..b- . . .
 The principle of state'sovereignty is inconsistent with a

theory-that nations are absolutely liable for any .damage resulting

from their actions.. - Goldie,. -International Principles- of Responsi-

bility for.-Pollution, 9 COLUM. J.'TRANSNAT'L L. 283, 306 (1970).

"An act .of state injurious to another. state is nevertheless not

an international delinquency if committed neither willfully and

maliciously nor with culpable negligence." 1 L. OPPENHEIM, INTER-

NATIONAL LAW 343 (8th ed. H. Lauterpacht .1955).

Under international law theUpper Peace River is part of

Karma's territory and is, therefore, under her sole and exclusive

control. H. BRIGGS, THE LAW OF NATIONS 274 (1952); 1 L. OPPEN-

HEIM, INTERNATIONAL LAW 464-65 (8th-ed. H. Lauterpacht 1955).

Under the Harmon doctrine, .co-riparians-owe no obligation to each

other with-respect to the uses of -connected inland waterways. 21.

OP. ATTY GEN. 274 (1895). The doctrine has continuing vitality

since Indian writers asserted it-during the recent Indo-Pakistan.

dispute over waters of the Indus River. Bains, The Diversion of

International Rivers, 1 INDIAN J. INT'L L. 38 (1960). Under this

doctrine,. Karma is not liable for the effects of waste and sewage

discharge into the Upper Peace-River.

Even if the Harmon doctrine is itself not-customary inter-

national-law, co-riparians are not bound by-any other customary

norm which restricts their uses -of territorial waters. One of

the most basic principles of international.law is that states are-

bound only by their own consent:. "Restrictions upon the independ-

ence of States cannot therefore be presumed." S.S. Lotus Case,

supra at-18. "No general principle:.of international law prevents

a riparian State'from . . . polluting its waters." BRIGGS, supra

at 274.

Moreover, the Court has always used a strict standard for

determining whether-a rule-has.achieved .status as .acustomary

norm: general acceptance asevidenced .by uniform state practice

over a considerable-period of timej accompanied by opinio juris

sive necessitatis.. North Sea.Continental Shelf Cases .supraat

41-45; Fisheries Case, [1951] I.C.J. 116, 131; Asylum Case,

[1950] I.C.J. 266, 277-78. New Helios, as claimant, has, there-

fore, a heavy burden of proof to establish that a customary rule

not-to pollute exists. The mere fact that a majority trend

exists does not mean that a rule has become customary law. Fish-

eries Jurisdiction Case (United Kingdom v. Iceland) (Merits),

[1974] I.C.J.- 89-90 (separate Opinion of.Judge De Castro). And

state inaction does not create a presumption of support for a

norm.. Lotus .Casei.supra at 28. Even if the Court were to de-

clare the maxim of sic utere- tuo ut alienum non -laedas to be cus-

tomary law..it would only have the character of a very broad gen-

eral principle. Manner, Water Pollution in International Law,

U.N. Doc.. WATER POLL./CONF./12 at 21 (1960). It "provides no

conclusive answer to what are the rights and obligations of a

state," id., and-therefore it cannot create liability in a spe-

cific case.- In the absence-of a showing by New Helios that a,

specific rule .of customary law exists that prohibits Karma's dis-

charge of wastes, .the Court-cannot hold Karma liable.

No international decision can serve as authority for the

prqposition that states are strictly liable for the effects of

 16

their waste-.disposal in international waterways. The decision in

the TrailSmelter Arbitration, 3 U.N.R.I.A.A. 1905 (1941), is re-

stricted by..its compromis. The judgment did not- establish the

principle.of liability, because -liability was accepted in advance

by Canada' THE.INTERNATIONAL LAW OF POLLUTION 71 .(J:. Barros & D.

Johnston eds. 1974)-[hereinafter cited as BARROS & JOHNSTON].

The decision's dicta-that recognizes a rule of responsibility for

the effects.of.environmental pollution was taken by analogy from

.domestic law and cannot be considered an international legal

norm. F. BERBER, RIVERS IN INTERNATIONAL LAW 177 (1959). More-

over, the tribunal did not-attempt to examine whether the notion

of.liability was.appropriate'in the international context. Rubin,

Pollution byAnalogy: The Trail Smelter Arbitration, 50 OREG. L.

REV. 259, 269 (1971). "Thus, its worth as-precedent appears

questionable," id. at 271 and .the Court cannot use it to hold

Karma liable,

3.. The .principle.of equitable..utilization permits the

.- .. discharge from Karmaals paper-mill -and nuclear power
-plant.
I.; Equitable utilization approaches the status of
international law.

If-a state's sovereignty over her.rivers is limited at

"all, it can only be.limited by the.principle of equitable utili-

zation,. a doctrine most authoritatively stated in .the Helsinki

Rules on the Use of the Waters of International Rivers. INTER-

NATIONAL LAW.ASSOCIATION, REPORT OF THE FIFTY-SECOND CONFERENCE,

HELSINKI 484. (1966) [hereinafter .cited-.as!HELSINKI RULES].

Rules .represent a .comprehensive attempt at

.The.Helsinki.

formulation-.of-.prlnciples for the settlement .of .conflicting water-

 uses, but, at-present, they are-only rudimentary. Bourne,. Pollu-

tion of International Rivers.and Lakes, 21 U. TORONTO L.J. 193,

195 (1971).-If any-of.the concep-s in the.Rules approach the

status of a-general principle of international law, it can-only

be equitable utilization. Id. at 201. The ILA included equita-

ble .utilization among its "Agreed Principles of-International.

Law" as .early as 1958. INTERNATIONAL-LAW ASSOCIATION, REPORT OF

THE.FORTY-EIGHTH CONFERENCE, NEW YORK-99: (1958). In addition,

the Trail Smelter -arbitration supports the doctrine to the extent

that.it required-serious consequences .before the imposition of

liability..-Utton,..International Water Quality Law, 13 NATURAL

RESOURCES J.. 282, 291 (1973).

The principle of equitable utilization is stated in Arti-

cle IV of the-Helsinki Rules-,"each basin State is entitled,

within its territory, to a reasonable and equitable share in the

beneficial.uses-of the waters of an international drainage

basin.". Article V provides that "what-is a reasonable and .equi-

table share within the meaning of article IV is-to be determined

in the light.of-all the relevant factors in each particular

case." HELSINKI-RULES,. -supra at 486-88.

2. The utility of the mill and .power plant-to Karma

.. far .outweighs the .injury-to New Helios occa-
sioned.by their operati6n.
.-Equitable utilization contemplates a decision on-water

-usage-based on-.a balancing of.the interests of the riparian

states-.. Karma's usage of the Peace River for the mill and power.

plant.is equitable-. Karma is a-developing state, still concerned

with.-feeding her -population,,.whereas -NewHelios is an.industrial-

ized country., able to bear the burden of .pollution control.

The Court must consider all .relevant factors, including

"the economic-and .sociAl.needs of each basin state . the

population dependent on.the waters of the basin .... [and] the

comparative costs of alternative means of satisfying the eco-

nomic and social needs ... " HELSINKI-RULES, supra at 488.

In a developing state such as Karma capital investment .for pollu-

tion control involves a "direct trade-off with increased employ-

ment opportunities or increased exports or other economic growth

objectives, .which are necessary simply to sustain life." H.

MALMGREN, INTERNATIONAL ECONOMIC PEACEKEEPING IN PHASE II 165

(1972)...International borrowing would only increase debt-

servicing .paymients and thereby restrict investment, already in-

adequatetdue to low domestic. savings. .G. OHLIN, FOREIGN AID

POLICY RECONSIDERED a8 (1966).

Conflict over the use of international rivers can be a

major impediment to economic growth "with the result that prog-

ress in development is often held up for years, to the detri-

ment, not only of the countries concerned, but .of the world in

general." .21-,U.N. ECOSOC 5, U.N. Doc. E/3066 (1958). The Founex

Report recognized the importance of continued development:

The less industrialized countries cannot forego growth or

transformation in.the name of -conservation of natural re-
sources.or for the.sake.of preserving an unaltered natural
habitatb -Actions taken -to protect the environment by divert7
ing resources-from development might in-the long run prove to
be self-defeating, since they might~reduce development there-
by-limiting.the-magnitude of resources ultimately available
for .improving theo.human-environment.

Unit-d Nations:-Conference on the Human .Environment,.Development

 and Environment, 5 U.N. Doc. A/Conf. 48/10 (1971). Moreover, the
continued economic development of less-developed countries creates

new markets .for .the increased production in .the industrialized

states and thereby.helps avert the problem .of large-scale.future

unemployment.- W.. VERWEYi. ECONOMIC DEVELOPNENT, PEACE AND'INTER-

NATIONALLAW 253 (1972).

The Court has not been blind to arguments of economic

necessity--in.the Fisheries Case (United Kingdom v. Norway),

[1951] I.C.J. 116, the Court attached significance to the fact

that the Norwegians depended on the fish for their livelihood.

And in the recent Fisheries Jurisdiction Case the Court noted

widespread acceptance of the concept of "preferential rights,"

particularly where the exploitation of a natural resource is of'

fundamental importance to the economic development of the .state

requesting .the.privileged conduct... Fisheries Jurisdiction

Case .(United Kingdom v.. Iceland)., [1974] I.C.J. 3, 23.

A balancing of interests at the present time favors plac-

ing the burden-on.New Helios.. As development proceeds, Karma may.

be able-to assume someresponsibilities in the protection .of the

environment, but the .present disparity in economic power.between

Karma and New Helios argues for her release from any liability.

III.. XARMA IS NOT OBLIGATED UNDER-INTERNATIONAL LAW TO MAKE-

REPARATIONS .TO NEW HELIOS -FOR THE EFFECTS OF THE:DIS-
.CHARGE-INTO THE PEACE'RIVER.

- No-act can be attributed to Karma which violates her: con-

ventional-or customary obligations under international-law.

Besides thisj .however, New Helios has suffered no injuries as a

result of Karma's conduct for which reparations may be awarded.

 A. No compensable damages have been suffered-by New-
:: Helios under .international law.

In the absence of proof that actual loss has occurred, a

claim for compensation must be dismissed. Mavrommatis Jerusalem

Concessions Case. [1925] P.C.I.J., ser. A, No. 5, at 51. The

burden of proof rests squarely upon the claimant; 2 S. ROSENNE,

THE LAW AND PRACTICE OF THE INTERNATIONAL COURT 580. (1965); B.

CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL

COURTS AND: TRIBUNALS 326-35 (1953). Furthermore, the Court can.

only award compensation on the basis of a

concrete submission as to the existence and the amount of

each head of damage. Such an award must be based on pre-
cise grounds and detailed evidence concerning those acts
which have been committed, taking into account all relevant
facts of each incident and their consequences in the circum-
stances of the case. It-is only after receiving evidence on.
these matters.that the Court can satisfy itself .that each
concrete claim is well founded in.fact and in law.
Fisheries.Jurisdiction Case (Federal.Republic of Germany v. Ice-

land), supra at 204. Unless New Helios meets these requirements,

the Court must dismiss any claim for compensation.

1. Purification expenses incurred by New Helios and

Lower Peace Brewery are not.compensable.

Riparian rights are not-rights of possession under inter-

national law; rather they are-rights of use. Bourne, The Right

t.Utilize the-Waters of International.-Rivers, 3 CAN. Y.B. INT'L

L. 188 (1965); 1 WATER AND WATER RIGHTS 66-67, 349 (R. Clark ed.

1967). Pollution of international waterways, therefore, does not-

constitute damage or injury to a property right.in the waters in

the sense of. damage or injury to other types of real property.

Nor has discharge of wastes inside Karma.prevented the use by New

 Helios of the waters running between the two countries. The only

effect of-.the discharge of wastes into the Upper Peace River has

been-the requiring of.further purification of the water. This

purification does not.result from damage.inflicted by Karma, but

rather from-a-normal condition for .theuse of natural waterways

as.a source of .drinking water.*

Even .if the Court decides that .pollution injures a .prop-

erty right to use the waters, New Helios is estopped from claim-

ing such.damage under .principles and practices of international

adjudication. 1 M. WHITEMAN, DAMAGES IN INTERNATIONAL LAW 187

(1937).:[hereinafter.cited as WHITEMAN]... New Helios is estopped.

in.three-.respects. First, the claim became,.extinguished by New

Helios'..failure .to promptly,notify Karma of its claim for dam-

.ages or to-protest.until 1974. Id.. at 222. Second, by install-

ing the purification equipment without protest, New Helios

acquiesced-in Karma's conduct. Third, delay in presentation of

this claim-.has barred New Helios from-presenting it as a valid

claim-under-international law. Id. at 236.

Any-other claim based on injury or damage -to water rights-

as a-result-.of discharge of wastes must,fail because it is not

"reasonably.capable--of estimation." Yntema, The Treaties with

Germany-.and-.Compensation for War Damage) .24 COLUM. L;,REV. 153

(1924). The only international adjudication that has considered

the effects-of.environmental pollution held that the tribunal

could.consider- only. damage;-for which -the -claimant could-prove a

pecuniary loss.. Trail Smelter.Arbitration ..

supra at 1932-33.

Here any .claim of injury to water rights would lack specific

measurement.

2. The outbreak of typhoid fever in New Helios is

not a compensable damage.

Under international.law, any loss for which the-claimant

asks compensation must have been proximately caused by respond-

ent's-illegal act. There must be no break in the chain of.causa-

tion and-the loss must-be "clearly, unmistakably and definitely

traced, link by link," to the respondent's conduct. United

States-Germauy Mixed Claims Commission Administrative-Decision No.

II,- 7 U.N.R.I.A.A. 23, 29-30 (1923). Any claim for damage that

the claimant cannot prove to be connected with .the illegal act.

must.necessarily fail. Responsibility of-Germany for. Acts Com-

mitted after July 31, 1914, and before Pottugal Entered the-Wari

2 U.N.R.I.I.A. 1040 (1930). The Court may use circumstantial evi-

dence but the proof must leave ."no room for reasonable doubt."

(emphasis added).. Corfu Channel*Case-(Merits), [19491 I.C.J. 4,

18. Specifically, in cases of personal injury, liability depends

on the absence of any demonstration "that any other independent

cause existed of which [the-injury] might have been a result."

Maninat Case-(1905), Report of the French-Venezuelan Mixed Claims,

Commission of 1902-(Prepared by J; Ralston 1906).

A relationship between discharge of sewage into supplies

of drinking water and the incidence of typhoid fever may exist.

New Helios.,. however, cannot,meet its- substantial burden of proof

i any claim to compensation for the .typhoid outbreak-. Typhoid

can be transmitted by agents other than.polluted water-milk

products,. shellfish, and almost any other-foods. C. WINSLOW,

MAN AND EPIDEMICS 44 (1952); I. TAYLOR & J. KNOWELDEN, PRINCIPLES

OF EPIDEMIOLOGY (1957). Moreover, there,is-a "large class of

cases not .traceable to the general water supply.or milk." A.

McLAUGHLIN,. SEWAGE POLLUTION OF INTERSTATE AND INTERNATIONAL WA-

TERS WITH SPECIAL REFERENCE TO THE SPREAD OF TYPHOID FEVERS 14-15

(Treas... Dep.'.t Hygienic Laboratory. Bull.. No.. 77, 1911). In these

cases typhoid is directly transmitted by chronic carriers of the

disease; Id. It is quite likely that the 1970 typhoid outbreak

in New Helios was 'due to one of these other causes.

Furthermore, in developed states typhoid has often been

virtually-eliminated, in spite of existing pollution, through

proper purification techniques for drinking water and through im-

munization... International.Joint Commission (United States and

Canada)., Report .on the Pollution of Boundary Waters 58 (1951)i.

Studies have shown that in countries .having low rates of endemic

enteric disease .there is no serious health risk to bathing in

polluted-waters.. WORLD HEALTH ORGANIZATION, -WATER POLLUTION-CON-

TROL IN DEVELOPING COUNTRIES 10 (Technical Rep. Ser. No.- 404,

1968). It-Is quite .likely.that New Helios' own failure to -purify

its citizens':.drinking water properly caused the 1970 outbreak

and this-may.have been.accompanied by a low level of immuniza-

tion. New Helios might.have closed .the beaches in order to place

responsibility on-Karma and shift attention away. from New-Helios'

own .negligence. Inlight of these .considerations, New Helios has

notmet .the burden.of proof in establishing a causal link between

Karma 's-.conduct and the typhoid.

 3. Future expenditures for water cooling and purifi-
. cation-are not compensable.

Simple.logic-.demonstrates that the Court cannot award com-

pensation .for-injuries not yet suffered.. 2 WHITEMAN-supra at

833. Nor can international tribunals take into account "contin-

gent and indeterminate damage" in ordering-reparations. Chorzow

Factory.Case--(Merits), [19281 P.C.I.J., ser. A, No. 17, at 57.

If any damage results from full operation of Karma's nuclear

power .plant, the Court. cannot remedy it at this time but only in

.asubsequent case. -States may-not request advisory opinions on

questions .of liability for future illegal acts and future injur-

ies. Certain.German Interests in Polish Upper Silesia, [1925]

P.C.IJ., ser. A, No. 6, at 21; Southwest Africa Case, Second

Phase, [1966]-.I.C.J. .4,.33-34. Any pronouncement by the Court..on-

the question of liability for the effects of effluent from the

nuclear power plant would have the character of anadvisory

opinion.

M. No future restrictions onKarma's conduct are war-

.ranted underinternational- law.

New Helios will probably request the Court to order Karma

not to pursue her -present course of conductin the future. This-

relief is not available to New Helios.. The remedy of injunction

is not,used in international adjudication, which must only result

in reparations .for the existing effects of illegal acts. Chorzow

Factory Case.(Merits),. supra at 47. The only decision in which

the tribunal employed such a remedy must be interpreted as being

narrowly-restricted by the express-terms of its compromis. Trail

Smelter-Arbitratienisupra at 1908; BARROS-& JOHNSTON, supra at 71.

 1; The-1923 Treaty.contemplates no prohibition of
..
Karma's..conduct in present.circumstances.

.... Article II(i) of the 1923 Treaty .of Amity, Friendship,

and Econohic Cooperation provides that pollution that injures

health .or,.property-.in-the other .state.is-prohibited (Appendix).

Only.harmful pollution is forbidden, however.. The treaty does

contemplate .total-prohibition of'all polluting activities. The
states-are .to enter.-into specific .arrangements if a state's pol-

lution imjures .the other state; (Art..II(2), Appendix). These

arrangements.are .to .be directed -at-controlling the polluting

state's-discharge of-wastes, so that .the responsibility in Arti-

cle II(i) may-be furthered.. Thus .the Treaty expresses the inten-

tion .of .the.parties that they must establish a balance of inter-

ests between-.the polluting state'.s use of the waters to dispose

of wastes and .an.acceptable range of the other state's beneficial

uses.

New Helios cannot prove-Karma's use of the waters has inr

jured property or-health in New Helios.. Nor can New Helios prove

with required .certainty that she will suffer serious injury in

the future.. In any event, should the situation contemplated by

Article II(1). arise in the future, the parties are under an -obli-

gation to enter-into specific arrangements.. The parties did not.

intend total prohibition of either state's use.

2. The existing customary regime does not-prohibit

the discharge of wastes into the Peace River.

.... Any Curt order having the -effect of a permanent injunc-

tion-.against.JKarma's dischargeof wastes into the Peace River is

not-consistent with customary:international law. First, if that

law embodies the sovereign right of a state to use its territorial

waters without regard to other riparians, then Karma is not,lia-

ble.. .Second'-.if.customary=.law embodies .the .doctrine of equitable

utilization, then Karma!s conduct-in permitting .discharge of

wastes is not subject .to injunction but,. at-the most, to restric-

tion to a point .where the effluent does not .conflict unreason-

ably with-New Helios'.use of the waters. Since Karma's use of

the waters does not illegally restrict New Helios'.utilization,

the Court..cannot prohibit Karma's conduct.

3. Even if existing conventional and customary inter-

national law permits an.order enjoining Karma's
discharge of wastes, no present or future damage*
.* to New Helios warrants it.

In order to obtain an order .having the effect of-an in-

junction, New-Helios must conclusively.demonstrate that Karma's

acts have.resulted in present harm and will definitely.cause harm

in .the future. Such -aburden was-met, in .the Trail Smelter Arbi-

tration-.through admission of.liability in.the compromis and ex.-

haustive xesearch -of future effects. Trail Smelter Arbitration,

supra.at .1905.

.. With respect-to .the discharge-of wastes -at the mill site,

New Helios cannot prove-that-serious harm.is -inevitable.. New

Helios -has not proved that the discharge of wastes caused the

1970 typhoid increase. In light of -the fact that there have been

no reports..of similar. outbreaks.in .the last five .years, imminent

danger to health in New Helios is.unlikely.. In addition,.fears

of great.destruction to the ecology of the waterways are present-

ly.unwarranted.. "The polluting effect of a particular organic

 material ,depends . .. . on many -variable environmental factors."

3 .B. GINDLER,. WATER AND WATER RIGHTS-li- (R. .Clark ed... .1967).. New

Heli6s-.cannot.prove that .in this case.discharge of wastes into

the waters will-necessarily have-the .feared-consequences. . In-

creased..expenses-.for .purification.equipment do not warrant in-

junction-either; Purification is a normal-expense that-accompan-

ies use-of .rivers as a source of drinking water. In any event,

Karma'.s discharge of wastes does not prevent the use of the wa-

ters by New-Helios, and under a regime of equitable apportionment

New Helios can best bear the cost -of ensuring a pure supply of

drinking water-to its citizens.

New-Helios cannot prove that effluent from the power

plant will .cause future harm that .warrants injunction. In some

situations:discharge of heated waters may. actually have a bene-

ficial environmental impact.. Jackson, The Dimensions of-Inter-

national.Pollution, 50 OREG. Li.REV. 236 .(1971)

.C.. Except under the. 1923 Treaty,. Karma has no duty under
-

..--....
international law to. negotiate .a regime for regulat-
.... •ing the-use of boundary-.waters.

- New-Helios may assert that..a.duty..exists -under.customary

international-.law-for Karma and New -Helios-to negotiate a regime

for .the .use-.of-the-waters running between.-them.. This obligation

does not,.exist. The 1923 Treaty does provide in Article 11(2) for

such negotiations when appropriate...In.present circumstances they-

are not .appropriate.. In.any event, New-Helios has not.heretofore

undertaken .to.comply with this treaty provision.. Outside of the

Treatyi the-only.general duty to negotiate-is found in Article.33

of the United-Nations,Charter which applies only in disputes

 likely to endanger the maintenance of international peace and

security. 49 ANNUAIRE DE 'INSTITUT DE -DROIT INTERNATIONAL,

tome. II,. .at-.92 .(1961).

IV. THE COURT .SHOULD NOT. INDICATE .INTERIMMEASURES!OF PRO-

DIRECTED AT KARMA,. PENDING FINAL%JUDGMENT.
.TECTION

Court. should not indicate. interim measures of pro-

.The

tection, .IC .J. STAT. art. 41; I.C.J. RULES, art. 61, for several

reasons.. Firstly, New Helios has suffered-no material damages.as

a .result.of.Karma'.s conduct and .cannot prove that such damages

are imminent... Secondly,. even if the Court finds that New Helios

will be.inj.ured, to warrant interim measures the harm must be

irreparable and.incapable of redress by award of damages. Nu-

clear.Tests Case.(Australia v. France)..(Interim Measures- of Pro-

tection)., [19733 I.C.J. 99, 104; Denunciation of the Treaty of

1865.Case, [1927] P.C.I.J., ser. A, No.. 8,,at7;. Here, damages.

would not be .irreparable. Thirdly, interim-measures should only

preserve the rights of the parties, not.effect a judgment in

one .party.. Charz 6w Factory Case (Indemnities), [1927]

favor-of -.

P.C.I.J.., ser; A, No. 12, at 10. The interim measures that New

Helios requests -are ."so close to the actual subject matter of the

case that they-.are practically indistinguishable therefrom."

* Nuclear.-Tests Case$:supra-.at .113 (dissenting opinion of Judge

Forster).. Karma knows.of-no "temporary" waste treatment facili-

ties.. Effectively, New Helios requests a judgment. Id.

The Court should also consider the serious.hardship that

an order directingthe cessation or abatement of waste disposal

at .the-mill-site would have on the-state .and citizens of Karma.

The-private'groups which operate .the mill .complex and Karma's

government are-.financially .unahle-.to..treat-.the-wastes effectively,

and .construction of-suitable facilities-is.physically impossible

in the near.future. Complete-cessation would have-serious eco-

nomic effects .on .the mill owners and disastrous health effects on

the inhabitants-.of the shantytown..-Such interim-measures would

definitely .not "preserve the.......rights"'of Karma. Id. at 103.

Moreover, the Court should not prohibit full operation of the

nuclear power plant. The energy produced by .the plant is desper-

ately needed for the development of Karmays interior and the

needs of-Karmays-capitali which has quadrupled in population

since-1950. (R. 4).

CONCLUSION

Wherefore, for the reasons set forth above, Respondent

respectfully prays that the International Court of Justice render

its decision in favor of Karma, finding that:

(1) Karma has not-breached the 1923 Treaty by allowing the

discharge of wastes into the Peace River.

(2) The discharge 6f wastes is not a breach of general

principles of international law for which Karma is.

responsible.

(3) Karma is not obligated to make reparations to New-

Helios.
 (4) The Court should not indicate interim measures of

protection pending final judgment.

Respectfully submitted,

George L. Flint, Jr.

Daniel J. Foucheaux, Jr.

Michael G. Mullen

CERTIFICATE

We certify that this Counter-Memorial complies with the

1975 Rules of.this competition.

George L. Flint, Jr.

Daniel J. Foucheaux, Jr.

Michael G. Mullen
 A P P E.N.D I X

1923.TREATY OF AMITY, FRIENDSHIP, AND ECONOMIC COOPERATION

.;Article I

In order...to carry out the purposes and.objectives of this Agree-

ment, the States of Karma and New Helios agree to cooperate and
consult with one another as appropriate.on matters of mutual in-
terest.

-. Article II

Paragraph 1. Both States agree that in keeping with the general

aim of amitr, friendship and economiccooperation, neither State
shall pollute-boundary waters or other waters running between
them so as to injure the health or property in the other State.

Paragraph 2. In furtherance of this responsibility the parties

undertake-to enter into specific arrangements as appropriate.

Article III

The Lower.Peace River shall be open to the ships of both States,

and navigation shall not be impeded or..unreasonable conditions
placed thereon, unless a situation arises in which either State,
upon notification to the other, believes-that health and safety
require the imposition of such conditions.

Article IV
Paragraph 1. Disputes between.the two States shall be settled
amicably and equitably with full regard .to the purposes and
principles set forth .in-this-Agreement.

Paragraph 2. Upon.the request of-either State, both States agree

that questions arising under.this Agreement which have not been
settldd within a reasonable time may.b6 brought to arbitration,
each State choosing one arbitrator and the remaining arbitrator
to be-agreed between them ori if agreement is not reached within
a period-of six months from the datexof the selection of the two
other arbitrators, such third arbitrator shall be selected by the
President of the Permanent Court of-International Justice.

Paragraph 3. At the time a request for arbitration is madel or at

any time before the arbitration commences, either-State may re-
quest that the disputebe submitted to the Permanent Court of
International Justice .or to a special chamber.of that Court. The
agreement.of the other State shall first .be obtained before sub-
mission .is made..to the Court.