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1975PhilipCJessupIntlLMootCtC PDF
1975PhilipCJessupIntlLMootCtC PDF
1975PhilipCJessupIntlLMootCtC PDF
1975
IN THE
INTERNATIONAL COURT OF JUSTICE-AT THE PEACE PALACE
THE HAGUE, NETHERLANDS
APRIL TERM
1975
On Submission to the
International Court of Justice
Page
Jurisdiction . . . . . . . . . . . . . .i........ 1
QuestionsPresented . . . . . . . . ............ 2
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
Page
Treaties
Cases.
. . . . . .. . . . . . . 15
Asylum-Case, [1950] I.C.J. 26 6 . .
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
Page
Journals
Page
Miscellaneous
Page
IN THE
INTERNATIONAL COURT OF JUSTICE
Vo
APRIL TERM
1975
JURISDICTION
operation. The Court may hear the case pursuant to Article 36 and
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.
STATEMENT .OF-FACTS.
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-
large pulp -and paper mill on .the shores of .the Upper .Peace. The
wastes from .the.mill and the raw .sewage from .the surrounding
housing .to alleviate the sewage .as soon .as .possible, .but no action
has -been -taken.. Since its-construction the mill complex .has dis-
beer and ale. Both.the State-of New Helios and .the Brewery have
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-
capital.
about.ten miles .to the south. In May of 1974, the plant began
..
operation.at .ten percent-capacity, emptying heated water used
-New Helios -and .the brewery protested that the heated water would
affect their uses of the river. If the plant becomes fully opera-
that .the .discharge into the Peace River system violates the 1923
4
has
and exhaustion of local remedies have been waived; the Court
the.anti-:pollution provision.
international law, New Helios cannot prove that any other rule of
I. KARMA'S ACTS HAVE NOT -BREACHED THE 1923 TREATY WITH NEW
.HELIOS.
Vienna Convention, art. 31. Third, .the rebus sic stantibus doc-
Assembly, to which both Karma and New Helios belong, has declared
tries." G.A. Res. 2625, 25 U.N. GAOR, Supp. 28, at 122-24, U.N.
Spain), 24 I.L.R. 101, 123 (1957), the arbitral tribunal made the
of the .water.
..... Analogizing to other treaties-reinforces the ordinary
New Helios and Karma intended .to include thermal discharges .with-
Dominican Republic and Haiti, 105 L.N.T.S. 216, 225 (1929).- In-
ten percent of capacity, New Helios has .not yet sustained any in-
are not.an .attempt to evade the treaty .terms since they are con-
C:*.-
.The ordinary meaning .of .the Treaty permits waste dis-
charges of Karma's paper mill into the Upper Peace
River.
pollution provision.
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.
sion .of the 1909 Treaty states: "boundary waters and waters
countries"--is that part of Lower Peace River that bends just be-
within .one .state such as the Upper Peace River. The mill dis-
A, No. 10, at 89. Private citizens own and operate the mill. In
I.C.J. 3,. 251; Vienna Convention, art. 31. For ten years New
these actions is that the waste discharge by .the mill must not
ers. . Second,. these changes did not .result from any breach of the
discharges accompanied the change but did not cause it. Third,
nuclear energy .became feasible only after 1943. Fourth, the pre-
wastes in .the Peace River, Karma would never have entered into
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
Karma's territory and is, therefore, under her sole and exclusive
OP. ATTY GEN. 274 (1895). The doctrine has continuing vitality
at 274.
exists does not mean that a rule has become customary law. Fish-
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-
specific rule .of customary law exists that prohibits Karma's dis-
Karma liable,
states-.. Karma's usage of the Peace River for the mill and power.
ment, not only of the countries concerned, but .of the world in
Karma and New Helios argues for her release from any liability.
L. 188 (1965); 1 WATER AND WATER RIGHTS 66-67, 349 (R. Clark ed.
effect of-.the discharge of wastes into the Upper Peace River has
erty right to use the waters, New Helios is estopped from claim-
II,- 7 U.N.R.I.A.A. 23, 29-30 (1923). Any claim for damage that
mitted after July 31, 1914, and before Pottugal Entered the-Wari
dence but the proof must leave ."no room for reasonable doubt."
power .plant, the Court. cannot remedy it at this time but only in
questions .of liability for future illegal acts and future injur-
opinion.
cle II(i) may-be furthered.. Thus .the Treaty expresses the inten-
uses.
jured property or-health in New Helios.. Nor can New Helios prove
Article II(1). arise in the future, the parties are under an -obli-
supra.at .1905.
Helios -has not proved that the discharge of wastes caused the
1970 typhoid increase. In light of -the fact that there have been
3 .B. GINDLER,. WATER AND WATER RIGHTS-li- (R. .Clark ed... .1967).. New
Karma'.s discharge of wastes does not prevent the use of the wa-
New Helios can best bear the cost -of ensuring a pure supply of
.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.
does not,.exist. The 1923 Treaty does provide in Article 11(2) for
tection, .IC .J. STAT. art. 41; I.C.J. RULES, art. 61, for several
are imminent... Secondly,. even if the Court finds that New Helios
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
nomic effects .on .the mill owners and disastrous health effects on
CONCLUSION
responsible.
Helios.
(4) The Court should not indicate interim measures of
Respectfully submitted,
Michael G. Mullen
CERTIFICATE
Michael G. Mullen
A P P E.N.D I X
.;Article I
-. Article II
Article III
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.
1975
February 1975
Between:
NEW HELIOS
Applicant
and
KARMA
Respondent
INDEX
Page
INDEX OF AUTIORITIES ......... ................. (vi)
JURISDICTION ..................... (xii)
Index (continued) I
CONCLUSION 25
ANNEX A (map) 26
ANNEX B (treaty) 27
(vi)
INDEX OF AUTHORITIES
Page
TREATIES, INTERNATIONAL AGREEMENTS AND CONFERENCES
CASES
JOURNALS
JURISDICTION
Justice.
putes arising under the Treaty "to the Permanent Court of Inter-
tice provides that: "1. The Court shall be open to the states
members of the United Nations, are "... ipso facto parties to the
vides as follows:
STATEMENT OF FACTS
has been filed before the Court; the parties have also waived
rule (F-5).*
QUESTIONS PRESENTED
Treaty of 1923.
II
III
may be entitled.
(xvi)
SUMMARY OF ARGUMI'T
laches or acquiescence.
inflicted upon the environment of New Helios under the 1923 Treaty
mill complex and town and of the nuclear plant, the operations of which,
rendering Karma liable to New Helios for any resulting injury to health
to restore the status auo ante insofar as possible and should con-
damage caused.
-I -
While the mill complex has been operating for ten years, it is
guilty of laches.
1. Lord A. McNair, The Law of Treaties 518 (2d rev. ed. 1961)
- 2 --
II. KARMA IS RESPONSIBLE FOR THE HARM WICH HAS BEEN OR MAY BE
INFLICTED UPON THE ENVIRONMENT OF NEW HELIOS UNDER THE 1923
TREATY.
doctrine have asserted the need to confine its scope within nar-
rebus sic stantibus. Indeed, it has been stated that "this occurs
11. Supra, n. 4.
and real intention of the parties at the time the treaty was con-
cluded, that is to say, the spirit of the treaty and not its mere
16
literal meaning". It follows that "... a party may not be allowed
enlarging, rights which may be claimed under it, the more liberal
18
interpretation is to be preferred". A treaty is therefore to be
19
interpreted "in the light of its object and purpose".
The "object and purpose" of the 1923 Treaty are made manifest
18. Nielson v. Johnson (1929), 279 U.S. 47 (Stone, J.). This has
been affirmed by the United States Supreme Court in Kolovrat v.
Oregon (1961), 360 U.S. 187 (Black, J.).
Karma has neither taken nor attempted to take any such measures.
the treaty.
are not stereotyped as at the date of the Treaty but must be under-
ambulatory.
The pollution of the Upper Peace River by the mill complex and
them", so that the activities of the mill complex and town, having
any harm which has been AND MAY BE inflicted upon the environment
29. John Young & Co. v. Bankier Dist. Co. [1893] A.C. 691,698
(H. L.).
- 10 -
30
lawful pollution at least as early as 1855 in England and
31
1904 in the United States.
c) Karma's violations of the 1923 Treaty have resulted
Treaty.
ary law .... The basic'rule may be said to express the duty to
"that no state may effect any work on that part of the river within
40. eg. Border Treaty between Belgium and W. Germany, 1956, Art.
7. U.N. Doc. ST/LEG/Ser.B/12 no. 151, 533,34; Frontier Treaty
between Norway and the U.S.S.R., 1949, Art. 14 ibid. no. 238,
882. Indus Waters Treaty between India and Pakistan Art. 4
para. 10 ibid. no. 97, 305 and Convention on the Protection of
Lake Constance Against Pollution, 1960 ibid. no. i27, 438. See
further Colliard, "Evolution et aspects actuels du regime
juridique des fleuves internationaux" 125 H.R. 390 et seq. (1968).
ical areas.
for harm that results from pollution, at least where the harm is
43
substantial. As long ago as in 1911, the Madrid session of the
in Art. X that:
49. eg. 1 L. Oppenheim, supra n.3, 346 and B. Cheng, supra n.16,
121.
50. A-C. Kiss, L'abus de droit en droit international 10 (1953).
53
basis of an international delinquency.
3. The principle of state liability for harm caused by
pollution is in accordance with judicial decisions.
The Lake Lanoux and Trail Smelter Arbitrations may also be looked
53. 1 L. Oppenheim, supra no.3, 345 and A-C. Kiss, supra n.53, 190.
59. eg. Missouri v. Illinois, 200 U.S. 496 (1906), New York v.
New Jersey 256 U.S. 296 (1921) and New Jersey v. New York
City 283 U.S. 473 (1931); Wurttemburg and Prussia v. Baden
(Staatsgerichthof, Germany) [1927-28] Ann. Dig. 128 (No. 86):
"No state has the right to cause substantial injury to the
interest of another State by the use it makes of the waters
of a natural waterway."
60. Bourne, supra n.35, 221. See also Colliard, spra n.39, 384:
"Comme le droit interne, le droit international comporte la
defense contre la pollution"; A. Patry, Le regime des cours
d'eau internationaux 11, (1960); Bourne, supra n.35, 203.
Cardona, "El Regimen Juridico de los Rios Internacionales"
56 Rev. de Derecho Int. 24,26 (1949) and 2 L. Cavare Le droit
international public positif 783 (2d ed. 1962).
called the Harmon Doctrine, to the effect that "there is no' duty
While some writers on the subject consider that the doctrine has a
65. S. Saliba, supra n.42, 66. See also Koutikov, supra n. 63, 15
n.8, H.A. Smith, The Economic Uses of International Rivers,
149 et seq. (1931) and Colliard, supTa n.39, 359.
71. I.L.A., supra n.45, 493 and P.Lester in The Law of Interna-
tional Drainage Basins,49 (Garretson,Hayton and Olmstead ed.
1967).
74
shares to two independent states in the same waters."
c) The reguiromient- for substantial damage, if it exists,
reasonable use of the water for drinking purposes and for indus-
77. B. Cheng, sura n.16, 1974. See also H. Lauterpacht, supra n.2,
138; D.Livingston, VScience, Technology and International Lawl,
in Black and Palk supra n.39, 104 and Andrassy, .sypra n.72:
"il y a obligation generald de ne pas faire ou de ne pas laisser
faire que soient provoques des dommages au prejudice de l'Etat
voisin".
- 20 -
"abstain from any unilateral action that may affect the interests
it has been suggested that the obligation to give notice finds its
82
origin in the Charter of the United Nations. Karma's actions in
A. Harm has been and will further be done to New Helios by Karma
The raw sewage and industrial wastes emanating from the shanty-
83. The Helsinki Rules, I.L.A., supra n.45, 501 (Art.XI) make ne-
gotiations mandatory in connection with the abatement of ex-
isting water pollution. Precedent of the highest authority
exists for the view that customary international law may re-
quire states to enter into negotiations with a view to
airlying at an agreement in the North Sea Continental Shelf
Cases [1969] I.C.J. Rep. 3, 46-7, 53-4. See also Bourne,
"Procedure in the Development of International Drainage Ba-
sins: The Duty to Consult and to Negotiate" 1972 C.Y.I.L. 212.
forcing the capital of New Helios and the world famous Lower Peace
and town continue polluting the lake and poisoning the environment
act and re-establish the situation which would ... have existed
90
if that act had not been committed."
91. C. Jenks, sra n.69, 419. See also 2 L. Cavare, supra n. 60,
482: "La competence pour statuer sur la reparation ... impli-
que la competence pour statuer sur les formes et modalites de
la reparation" and Sauser-Hall, supra n.62, 524: "La plupart
des auteurs [reservent] le droit d'un Etat lese par l'utilisa-
tion abusive d'un cours d'eau pat un Etat riverain, au retab-
lissement du statu quo ante ou a des dommages-interets."
92. Schwarzenberger, sup n.87, 42. See also the Helsinki Rules,
I.L.A., supra n.45, 501 (Art. XI): "the state shall be required
to cease the wrongful conduct and compensate the injured co-
basin State for the injury that has been caused to it."
93. C. Jenks, supra n.69, 120. See also Griffin, "The Use of Waters
of International Drainage Basins under Customary International
Law", 53 A.J.I.L. 80 (1959) and M. Sorenson, supra n.34, 565.
94. [1932] P.C.I.J. ser. A/B.No.46, 172, where France was ordered
to remove a customs cordon that was in breach of a treaty.
97. eg. The Lower Peace Brewery [F-4]. The recreational uses of
the Lake are also affected by the discharge of heated waters.
99
penses incurred due to Karma's illegal actions, with interest
100
at the rate of 9% from the date of the present judgment.
Should the Court find that New lelios had not fully established
CONCLUSION
100. See H. Lauterpacht, supra n.2, 145 and the Wimbledon Case
[1923] P.C.I.J. ser. A No. 1, 33.
101. But see Corfu Channel Case [1949] I.C.J. Rep.4,8 as to the
evidentiary presumption in favour of a state bringing a claim.
WILbunwass
p~rr. 1 0,J
NEW HELIOS
-% /. CAPITAL
"N -ov/
4
,k/.e
-OL"IER
BfkwmRy
NUCLEAt
pL-AFJ1
KARMA
I.
CAV~YAL. Ov
KAGvft .OI
-27-
ANNEX B
ARTICLE I
In order to carry out the purposes and objeclives 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 agreement of the other State
shall first be obtained before submission is made to the
Court.
THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION
1975
February 1975
Between:
NEW HELIOS
Applicant
and
KARMA
Respondent
'Page
CONCLUSION ....
-.......................... 25
ANNEX A (Map) .......................................... 26
INDEX OF AUTHORITIES
Page
TREATIES AND OTHER INTERNATIONAL AGREEMENTS
CASES
Advisory Opinion on Namibia [1971] 1 C.J. Rep. 16. 47 ... 5
Advisory Opinion on the I.L.O. [1922] P.C.I.J. ser. B
Nos. 2, 3, 23 .................................... 10
Hoijer, 0., Les traites internationaux, 471, 511 (1928) ... 2,6
McNair, A., The Law of Treaties, 169, 412, 465, 467, 484
(2nd rev. ed., 1961) ............... ...... 6,8,11,12
O'Connell, D., International Law, 616, 1016 (2nd ed., 1970).. 1,20
Rosenne, S., The Law of Treaties, 324, 325 (1970) ........... 3,10
Vattel, E., Le droit des gens, 164, 298 (1758) ............. 9,16
JOURNALS
JURISDICTION
Justice.
The said Article IV makes provision for the submission of dis-
putes arising under the Treaty "to the Permanent Court of Inter-
tice provides that: "1. The Court shall be open to the states
parties to the present Statute." Both Karma and New Helios, as
members of the United Nations, are "...ipso facto parties to the
vides as follows:
STATEMENT OF FACTS
has been filed before the Court; the parties have also waived
rule [F-5"1.*
QUESTIONS PRESENTED
III
may be entitled.
(xvi)
SUMMARY OF ARGUMENT
Treaty of 1923.
in 1964 and New Hellos' first protest in 1974, which delay con-
Karma has been gravely prejudiced by the laches of New Helios in-
12
the law of nations". Jurists of every age have recognized the
13
juridical effects of silence.
now. Good faith would require New Helios to have taken "active
II. KARMA IS NOT RESPONSIBLE UNDER THE 1923 TREATY FOR ANY HARM
INFLICTED UPON THE ENVIRONMENT OF NEW HELLOS
12. North Sea Continental Shelf Cases [1969] I.C.J. Rep. 3, 127
13. Bentz, 'Le silence comme manifestation de volonte en D.I.P2
67 R.G.D.I.P. 45 (1963)
14. Schwarzenberger, 'The Fundamental Principles of International
Law' 87 H.R. 256 (1955); See also the Temple of Preah Vihear
(Merits) Case [1962] I.C.J. Rep. 3, 23
15. Art.10, Convention on Treaties, Havana, 1928: 22 A.J.I.L.,
Supp. 139 (1928)
16; In S. Rosenne, The Law of Treaties 324-25 (1970)
-4-
the World Court: "This principle, and the conditions and excep-
ing its position on its extent and the precise mode of its appli-
cation."2 3 In 197124 and 1973 again, the Court was more cate-
gorical:
"International law admits that a fundamental change in the
circumstances which determine the parties to accept the
treaty, if it has resulted in a radical transformation of the
extent of the obligations imposed by it may, under certain
conditions, afford the party affected a grounhsfor invoking
the termination or suspension of the treaty."
26
The clausula has been accepted by other international tribunals
problems. 27
4. The clausula has been widely accepted by publicists.
22. van Bogaert, 'Le sens de la clause rebus sic stantibus dans
le droit des gens actuel' 1966 R.G.D.I.P. 50 Transl. "in the
twin rules: pacta sunt servanda and rebus sic stantibus, we
find the two ingredients necessary to ensure the existence
of an efficient and equitable law"
23. I. Brownlie supra n.3 599 (Free Zones Case [1932] P.C.I.J.
ser. A/B No.46, 156-58)
24. Advisory Opinion on Namibia [1971] I.C.J. Rep. 16, 47
25. Fisheries Jurisdiction Case [1973] I.C.J. Rep. 3, 18
26. eg. Russian Indemnity Case Hague Court Rep. (Scott) 297 (1910)
27. eg. Lucerne v. Argau 8 B.G.E. 57 (Switz.S.C. 1882): "There is
no doubt that treaties may be denounced unilaterally by a
party under obligation, if their continuance is incompatible
-6-
time the treaty was concluded more than half a century ago, has
Karma is to alleviate the poverty that for too long has been the
for the termination of Art. II. The I.C.J. recognized the legi-
33. [1951] I.C.J. Rep. 116, 133. With respect to the part econo-
mic factors can play in the termination of a treaty, see
G. Schwarzenberger supra n.30, 169 and generally McNair, 'La
terminaison et la dissolution des traits22 H.R. 467 (1928).
34. G. Harazti, supra n.17 384, see also Fisheries Jurisdiction
Case supra n.25.
35. A. McNair supra n.32 465. See also B. Cheng supra n.3 ch.3.
36. Poch de Caviedes supra n.29 166. See also Tucker v. Alexan-
droff 183 U.S. 347 (1902)
-9 -
be terminated.
change was not foreseen by the parties since the main factor in
has been sanctioned by the World Court 5 6 as has the cognate 'con-
garnered from the very title of the Treaty and the provisions of
Karma's economy.
III. KARMA IS NOT RESPONSIBLE FOR ANY HARM WHICH HAS BEEN OR MAY
BE INFLICTED UPON THE ENVIRONMENT OF NEW HELIOS UNDER GENER-
AL PRINCIPLES OF INTERNATIONAL LAW.
pollution.
tion control devices for the paper mill, and the economic hard-
to institute.
63. See Article 4(10) of the Indus Waters Treaty, supra note 61,
305; Article 58(2)(e) of the Frontier Treaty, supra note 61,
758. The distinction between substantial and minor damage
could be understood as the difference in the relative value
of the modification in relation to the utility of the develop-
ment. P. Sevette, "Legal Aspects of Hydro Electric Develop-
ment on Rivers and Lakes of Common Interest", U.N. Doc. E/
ECE/136 (1952) E/ECE/EP 98 Rev. 1, 212.
64. See Article 4(10), Indus Waters Treaty, supra note 61, 305;
Article 58(3), Frontier Treaty, supra note 61, 758; Article
1(2), Convention sur la protection du lac de Constance contre
la pollution, October 27, 1960 U.N. DOC. ST/LEG/SER.B/12 438,
439.
65. International Law Association, Report of the 52nd Conference
Helsinki 1966 496 (1967), Article X.
- 16 -
environmental harm.68
make any reasonable use of river waters which does not substan-
the United States Supreme Court has determined that a state seek-
of economic development.
Karma's activities.
seriously jeopardized.
Karma's utilizations. 91
without consent.
The harm suffered by the applicant, "is actually far less serious
resulting from the power plant when fully operational would not be
irreparable.
It is submitted that the Court may follow this practice and strongly
CONCLUSION
New Helios.
development.
OC2
WILbDgItomus-6
Kutr.1o
NEW HELIOS
CAPITAL
0% * '%04 ,
LOIE
.IW6Ry
N UGLEAR
PLAPT
Ic ifnmus
SOOxIATO
CAIAL. ow
. ° ... , .
-27-
ANNEX B
ARTICLE I
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 agreement of the other State
shall first be obtained before submission is made to the
Court.
THE PHILIP C. JESSUP INTERNATIONAL LAW MOOT
COURT COMPETITION
1975
1975
V.
Team Number 2
March 14 & 15, 1975
TABLE OF CONTENTS Page
TABLE OF AUTHORITIES .................... iii
JURISDICTION . . . . . . . . . . . .. . . . . . .. vi
STATEMENT OF FACTS .A. .......... .................. . vi
Page
TREATIES AND OTHER INTERNATIONAL AGREEMENTS
iii
Page
Nuclear Tests Cases, Interim Protection,
£1973/ I.C.J. 99, I.C.J. 135 .......................... 12, 13,
24
Nuclear Tests Judgment of December 20, 1974,
/1974/ I.C.J. 253, I.C.J. 457 ........................... 14
Societe Energie Electrique du Littoral Mediterraneen
v. Compagnia Imprese Elettriche Liguri, Judgment of
February 13, 1939, /1938-1940/ Ann.Dig. No.47 (Corte
di Cassazione) .................. ............. 15
JOURNALS
Andrassy, "Les Relations Internationales de Voisinage",
79 Recueil des Cours II 72 (1951)....................... 17
Lissitzyn, "Treaties and Changed Circumstances
(Rebus Sic Stantibus)", 61 A.J.I.L. 895 (1967)...........9
Wright, "Subversive Intervention", 54 A.J.I.L.
521 (1960) ................................ ........... 15
TREATISES, DIGESTS, RESTATEMENTS Page
STATUTES
U.S. Federal Water Pollution Control Act
Amendments of 1972, 33 U.S.C.A. S1362 ................... 4
STATEMENT OF FACTS
est."
on the Upper Peace River. The wastes from this mill and the
rounding it, are discharged into the Upper Peace River untreated.
tion, has recommended that the mill construct facilities for the
treatment of its wastes and those of the boom town. The mill
both the capital of New Helios and the world-famous Lower Peace
Brewery draw their drinking and brewing water from the Lake,
national Lake.
waters of the Lake enter the Lower Peace. In May, 1974, the
plant became operative at 10% of capacity, emptying its heat-
laden cooling waters back into the Lower Peace River. The citi-
zens of New Helios have found that this interferes with their
located downstream from the plant requires clear and cool waters
to produce its premium beers and will be forced, should the plant
vii
go fully operational, to spend $900,000 for special cooling
chooses.
its present course. This dispute now threatens the long, peace-
QUESTIONS PRESENTED
viii
SUMMARY OF ARGUMENT
waterway which arises from the more general duty not to use or
beneficial uses.
neighborliness.
rations and equitable relief for the injuries done New Helios.
beneficial use of the waters of the lake and river must be moder-
tion as well. The volume of effluent from the nuclear power plant
must not be increased until Karma can prove to this Court that it
will not cause injury in New Helios or until cooling towers are
Helios.
Support for this .interpretation can be found in both the
Treaty's object and purpose and in relevant rules of internation-
al law. For Karma to eschew pollution on its own part but
permit it by its citizens would render nugatory the object of
controlling transboundary pollution on the Peace Rivers and in
International Lake. Permitting such private pollution with
transboundary effects is neither amicable nor friendly, nor,
considering the costs that New Helios must accordingly bear,
economically cooperative. This is especially true in light of
the fact that New Helios has protested this situation to Karma
and the latter has taken no responsive action.
This interpretation finds further support in the rules of
international law applied by arbitral tribunals and international
adjudications. In the Trail Smelter case, the tribunal observed
that "under principles of international law . . . no state has
international law.
4. There can be no question of the continuing
validity and enforceability of the 1923 Treaty.
Despite the considerable lapse of time since the 1923
Treaty came into force, there has been no fundamental change of
circumstances such as might justify the termination or suspension
of the Treaty on the grounds of clausula rebus sic stantibus.
Although noted in Article 62 of the Vienna Convention on the Law
of Treaties, supra, the principle of fundamental change of cir-
cumstances has never been officially invoked by this Court, its
predecessor, or any other international tribunal. Brierly, Law
of Nations 244 (4th ed., 1949). In fact, the present case is
closely analogous to the Case of the Free Zones of Upper Savoy
and the District of Gex, /19327 P.C.I.J., Ser.A/B, No.46, at 156-8;
2 Hudson, World Court Reports 448, 553 (1935), in which the
Permanent Court of International Justice expressly reserved the
question of the existence of this rule. There, France failed to
prove that the existence of the allegedly changed circumstance
was the basis for the parties' consent to be bound by the treaty.
Similarly, Karma can present no evidence showing that any circum-
stances which have changed since 1923 were essential bases for
the parties' consent to the treaty.
In reality, the only fundamental circumstance which has
changed is Karma's desire to develop itself "in any way possible".
This is a change of policy, not of circumstance. The attempt to
escape the obligations of the treaty is based on a desire to
avoid the cost of treating its sewage and charging the effect of
that nontreatment to New Helios. See, generally, Lissitzyn,
"Treaties and Changed Circumstances (Rebus Sic Stantibus)", 61
A.J.I.L. 895 (1967). In its official commentary to Draft Article
59 on changed circumstances, the International Law Commission
explained that it would allow rebus only for those policy changes,
such as political realignment, which both parties might prefer
to terminate. 61 A.J.I.L. 433-4 (1967). There is no such policy
change, here, however. No realignment is taking place and only
based
On certain general and well-recognized principles,
namely: elementary considerations of humanity, . ..
the principle of the freedom of maritime communication;
and every State's obligation not to allow knowingly its
territory to be used for acts contrary to the rights of
other States. (143 A._J.L. at 570-571) (Emphasis-added).
This decision was based in part upon a finding that Albanian
authorities' knowledge of the minefield could be fairly imputed
from the facts in spite of spirited denials. The Court reasoned:
harmful agents.
Although there are not yet any international decisions re-
lating specifically to the pollution of an international river,
this Court should note the remarks of the Arbitral Tribunal
created by France and Spain to settle the Lake Lanoux case,
62 Revue Generale de Droit International Public 79-119 (1958);
53 A.J.I.L. 156 (1959). The tribunal found that it was unable
under the treaty involved to declare that France had violated
international obligations by diverting a volume of water from
the Carol River and later returning a similar volume via a tunnel
before entry into Spain. However, the Tribunal set out grounds
which, had they been argued, would have justified a finding of
injury:
It could have been argued that the works would bring
about a definitve pollution of the waters of the Carol
or that the returned waters would have a chemical com-
position or a temperature or some other characteristic
which would injure Spanish interests. (53 A.J.I.L. at 160).
Thus the very injuries complained of by New Helios have been
found to violate the international obligation that an upper
reparian state refrain from inflicting harm on a lower riparian.
See Lauterpacht, at 474-475.
This same principle has been recognized by the highest
Italian appellate court in Societe Energie Electrique du Littoral
M~diterraneen v. Compagnia Imprese Elettriche Liguri, Judgment of
February 13, 1939, L-938-19407 Ann.Dig. 120-122 (No.47)(Corte di
Cassazione); 3 Whiteman, Digest of International Law 1050.
This rule also finds support in the traditional doctrine of
sic utere tuo ut non alienum laedas (so use your own property as
not to injure your neighbor). Blackstone recognized this as the
essence of the common law of nuisance, noting as an example the
poisoning of a water course. 3 Blackstone, Commentaries on the
Laws of England 218 (Chitty ed., 1827). Its importance in inter-
national law is stated in Lauterpacht, at 346-347:
The maxim, sic utere tuo ut non alienum non laedas, is ap-
plicable to relaions of States no less than to those of
individuals; . .. it is one of those general principles
of law recognized by civilized States which the Permanent
Court is bound to apply . . . (footnotes omitted).
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