Team 10

MEMORIAL FOR THE TEHANKEE CENTER FOR THE LAW MOOT COURT
COMPETITION

REPUBLIC OF AYASA
APPLICANT

CONFEDERATION OF RAMIGIAN NATIONS

RESPONDENT

COUNSEL FOR RESPONDENT

 TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................... 1

INDEX OF AUTHORITIES .......................................................................................................... 5
STATEMENT OF JURISDICTION ............................................................................................... 8
QUESTIONS PRESENTED ........................................................................................................... 9
STATEMENT OF FACTS .................................................................................................................. 10
Background .............................................................................................................. 10
Omeloi and Its Centuries-old Huacasera Ritual ............................................................ 11
The Limara Outbreak and the malaria-treating Capabilities of Purahuaca ....................... 11
The Arrangement and the Omeloi Protest ..................................................................... 12
The Complaint for Nullity of Patent and Recovery of Royalties ..................................... 13
The Fire Caused by Omeloi Tribesmen ........................................................................ 14
Application to the Court ........................................................................................... 14
SUMMARY OF PLEADINGS ..................................................................................................... 15
First Pleading ............................................................................................................ 15
Second Pleading ....................................................................................................... 15
Third Pleading .......................................................................................................... 16
Fourth Pleading ........................................................................................................ 16
MAIN PLEADINGS ..................................................................................................................... 17
I- RAMIGO IS NOT LIABLE FOR THE WORSENING OF THE LIMARA OUTBREAK

IN THE AYASAN BORDER

A. THE CASE IS INADMISSIBLE BEFORE THE ICJ FOR FAILURE OF THE

STATES TO EXHAUST LOCAL REMEDIES……………………………………..17

B. EXCEPTIONS TO LOCAL REMEDY RULE DOES NOT APPLY…………..18

C.THE LIMARA OUTBREAK RESULTED FROM POOR FARMING

PRACTICES OF AYASA …………………………………………………………19

1
 D. RAMIGO DID NOT COMMIT AN INTERNATIONALLY WRONGFUL

ACT………………………………………………………………………………….20

1. THE ACTIVITIES OF THE OMELOI TRIBESMEN ARE NOT

ATTRIBUTABLE TO RAMIGO……………………………………………....20

a. OMELOI TRIBESMEN ARE NOT RAMIGO’S STATE ORGAN……..20

b. THE OMELOI TRIBESMEN HAVE LOCAL AUTONOMY OVER

ECONOMIC MATTERS…………………………………………………...21

c. CONDUCT OF OMELOI TRIBESMEN HAS NOT BEEN ADOPTED

BY RAMIGO………………………………………………………………...22

2. EVEN ASSUMING THAT OMELOI TRIBESMEN'S ACTIONS ARE

ATTRIBUTABLE TO RAMIGO, THEY DID NOT VIOLATE TREATY

AND CUSTOMARY INTERNATIONAL LAWS…………………………….23

a. THE COUNTERMEASURE WAS IN RESPONSE TO THE BREACH

ATTRIBUTABLE TO AYASA……………………………………………23

b. THE OMELOI CALLED UPON THE RYLOV SCIENTISTS AND

RESEARCHERS TO DISCONTINUE ITS INTERNATIONALLY

WRONGFUL ACTS………………………………………………………..24

c. THE RELATIONS TO THE LAND ARE NOT MERELY A MATTER

OF POSSESSION………………………………………………………..…24

d. THE COUNTERMEASURE MET THE REQUISITES OF

VALIDITY………………………………………………………………….25

II. RAMIGO DID NOT VIOLATE ANY ENVIRONMENTAL LAW BY BURNING

THE BORDER TREES

2
 A. THE BURNING OF BORDER TREES BY THE OMELOI TRIBE IS NOT

ATTRIBUTABLE TO RAMIGO………………………………………………….27

B. THE BURNING OF THE BORDER TREES IS DUE TO AYASA’S FAILURE

TO FAITHFULLY EXECUTE THE

AGREEMENT……………………………………………………………………...28

C. RAMIGO DID NOT VIOLATE ANY INTERNATIONAL ENVIRONMENTAL

LAW…………………………………………………………………………………29

III. THE USE OF THE PLANT BY AYASA’S CITIZENS VIOLATED THE

INDIGENOUS PEOPLE’S RIGHTS.

A. THE OMELOI TRIBE IS AN INDIGENOUS COMMUNITY. ………………30

B. AYASA VIOLATED THE RIGHTS OF INDIGENOUS PEOPLES UNDER

THE UNDRIPS, ILO CONVENTION 169, ICCPR AND ICESCR

1. VIOLATION OF THE ILO CONVENTION NO. 169. ………………………….32

2. VIOLATION OF THE UNDRIP. …………………………………………………37

3. VIOLATION OF THE ICCPR AND ICESCR…………………………………...39

4. VIOLATION OF THE CBD. ……………………………………………………...39

C. CULTURAL RIGHTS OF OMELOI PREVAIL OVER AYASA’S PUBLIC

HEALTH EMERGENCY .......................................................................................... 40
IV. AYASA DID NOT ACQUIRE INTELLECTUAL PROPERTY RIGHTS OVER THE
DRUG AND THE SMOKING PROCESS.
A. AYASA IS LIABLE FOR BIOPIRACY. …………………………………………41

B. AYASA DID NOT MEET THE CRITERIA FOR PATENTABILITY. ………..44

C. AYASA VIOLATED BENEFIT SHARING ……………………………………...45

3
 D. AYASA VIOLATED THE PARIS CONVENTION FOR FAILURE TO

RECOGNIZE THE CONTRIBUTION OF THE OMELOI TRIBE FOR ITS

DEVELOPMENT AND PROCESSING…………………………………………...46

E. HOW INDIGENOUS PEOPLE’S CONTRIBUTIONS ARE RECONCILED

WITH INTELLECTUAL PROPERTY LAW…………………………………….49

PRAYER FOR RELIEF ........................................................................................................ 51

4
 INDEX OF AUTHORITIES

ARTICLES
Ian Brownlie, Principles of Public International Law (7th ed. Oxford University Press, Oxford
2008)……. ................................................................................................................................... ..17
José Martinez Cobo, “Study of the Problem of Discrimination Against Indigenous
Populations”…………. ................................................................................................................. 31
Lere Amusan, “Politics Of Biopiracy: An Adventure Into Hoodia/Xhoba Patenting In Southern
Africa”……………………………………………………………………………………………41
Fariba Assadi-Porter. “How Sweet It Is: Detailed Molecular and Functional Studies of Brazzein,
a Sweet Protein and Its Analogs.”…………………………………………..................................42
Giovannini P, Reyes-García V, Waldstein A, Heinrich M. Do pharmaceuticals displace local
knowledge and use of medicinal plants?………………………………………….......................42
Ajeet Mathur. Who Owns Traditional Knowledge?……………………………………………..43
T. Cattier and M. Panizzon, hgal Perspectives on Traditional Knowledge…………...................46

INTERNATIONAL DECISIONS AND ARBITRAL AWARDS

Interhandel, Switzerland vs. United States.. .................................................................................. 17
Case Concerning Elettronica Sicula Spa (US V Italy) [1989].. .................................................... 18
Norwegian loans (France vs. Norway), Judgment, I.C.J. Reports 1957.. ..................................... 19
Panevezys-Saldutiskis Railway case …………………………………..…………………….......19

Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7 ………..……21
Mayagna Awas Tingni Community v. Nicaragua; Judgment of Aug.31, 2001 ………..….........24
Case Concerning the United States Diplomatic and Consular Staff in Tehran, 24 May 1980, ICJ
Reports (1980)…………………………………………………………………………………...26
Samaraka v. Suriname, IACHR Series C No 185………………………………………………..28
Moiwana Community v. Suriname, Judgment of June 15, 2005…………………………….28, 29
Ogoni v. Nigeria, Communication No.155/96, 27 May 2002, African Commission on Human
and People’s Rights ……………………………………………………………………………...29

5
Mayagna (Sumo) Awas Tingni Community v. Nicaragua ……………………………………...33
Apirana Mahuika et al. v. New Zealand………………… …………………………...................34

TREATIES AND CONVENTIONS

Draft Articles On Diplomatic Protection. ................................................................................ 17, 18
Responsibility of States for Internationally Wrongful Acts. ..................... 20, 22, 23, 24, 25, 26, 27
Vienna Convention on the Law of Treaties. .................................................................................. 23
International Convention on the Elimination of All Forms of Racial Discrimination .................. 28
Convention on Biological Diversity ............................................................................ 29, 39, 40, 44
International Labour Convention ........ …………………………………………………………..30
American Convention on Human Rights………………………………………...........................36
International Covenant on Economic, Social and Cultural Rights ………………….............39, 40
International Covenant on Civil and Political Rights ……………………………….............40, 41

TREATISES AND BOOKS

James R Crawford And Thomas D Grant, ‘Exhaustion Of Local Remedies’ [2007] Max Planck
Encyclopedia Of Public International Law. .................................................................................. 18
E. Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures…………………..25
Dorothea Anthony, Indivisibility of Human Rights: A Theoretical Critique……………………41
Daniel Gervais, Traditional Knowledge and Intellectual Property: A TRIPS- Compatible
Approach…………………………………………………………………………………………41
Stephen Hansen & Justin Vanfleet, Traditional Knowledge And Intellectual Property. ...... ……42
John A. Beutler. Natural Products as a Foundation for Drug Discovery. Curr Protoc
Pharmacol………………………………………………………………………………………..42
Merryman, The Public Interest in Cultural Property. ……………………………………………45
Chimento, Comment: Lost Artifacts of the Incas: Cultural Property and the Repatriation
Movement………………………………………………………………………………………..45
Juan B, Bioprospecting and Drug Development, Parameters for a Rational Search and Validation
of Biodiversity (2017)…..………………………………………………………………………..45

6
Scott Holwick, Developing Nations and the Agreement On Trade-Related Aspects of Intellectual
Property Rights…………………………………………………………......................................48
Carlos M Correa, “Traditional Knowledge and intellectual property”………..............................49

U.N. RESOLUTIONS AND OTHER DOCUMENTS

Affaire relative a la concession des phares de l’Empire ottoman, UNRIAA, vol. XII . .............. 23
Materials on the Responsibility of States For Internationally Wrongful Acts, United Nations
Legislative Series …………………………………………………………………………..........25
The United Nations Declaration on the Rights of Indigenous Peoples….………………………35
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms
of Indigenous People U.N. Doc. E/CN.4/2003/90 (Jan. 21, 2003)................................................35
WIPO Report On Fact-Finding Missions On Intellectual Property And Traditional Knowledge
(1998-1999)....................................................................................................................................41

MISCELLANEOUS
Compromis………………………………………………………………………………………18,
19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 35, 36, 37, 38, 39, 40, 41, 44, 45, 46, 47, 48, 50

7
 STATEMENT OF JURISDICTION

Pursuant to the Compromis concluded on 15 August 2018, between the Republic of

Ayasa and the Confederation of Ramigian Nations [“the Parties”], and in pursuant to Article 40

(1) of the Statute of the International Court of Justice, the Parties hereby submit to this Court

their dispute concerning questions relating to the harvest and processing of purahuaca and the

destruction of the Lusewa Rainforest.

In accordance with Article 3 of the Special Agreement, the International Court of Justice

is hereby requested to adjudge the dispute on the basis of the rules and principles of general

international law, as well as any applicable treaties. The Court is also requested to determine the

legal consequences, including the rights and obligations of the Parties, arising from its Judgment

on the questions presented. The Parties have agreed to accept any Judgment of the Court as final

and binding upon them and shall execute it in its entirety and in good faith.

8
 QUESTIONS PRESENTED

I.

WHETHER OR NOT RAMIGO IS LIABLE FOR THE WORSENING OF THE

OUTBREAK DUE TO THE LOSS OF CULTIVATED PLANTS

II.

WHETHER OR NOT RAMIGO VIOLATED ENVIRONMENTAL LAW BY BURNING

THE BORDER TREES

III.

WHETHER OR NOT THE USE OF THE PLANT BY AYASA’S CITIZENS IS A

VIOLATION OF INDIGENOUS PEOPLE’S RIGHTS

IV.

WHETHER OR NOT AYASA HAS RIGHTFULLY ACQUIRED INTELLECTUAL

PROPERTY RIGHTS OVER THE PLANT

9
 STATEMENT OF FACTS

BACKGROUND

The Republic of Ayasa (Ayasa) occupies the western half of the island of Fersila, while

the Confederation of Ramigian Nations (Ramigo) is on the eastern half. Bordering them is the

Lusewa River which runs through a dense tropical rainforest named after it. The forest extends

on either side of the river.

Lusewa Forest is inaccessible to many researchers and has its abundant flora and fauna. It

is home to several mostly endangered species of bird, insect, mammals, frogs, trees, orchids and

mangroves. Thus, the rainforest was declared a protected area by both Ayasa and Ramigo under

the Lusewa Rainforest and River System Protection Agreement (LRRSPA).

Ayasa is a low middle income country with a unitary presidential system of government.

Its economy is largely based on agriculture. Poor farming practices have resulted in declining

soil fertility, resulting in less productive harvests and less nutritious crops.

Ramigo is a middle income country composed of autonomous regions reporting to a

central government with limited powers. The autonomous regions decide on their own including

infrastructure, natural resource utilization and use of allocated funds from the central

government. Its main industry is also agriculture, specially raising of livestock.

10
OMELOI AND ITS CENTURIES-OLD HUACASERA RITUAL

One of the autonomous regions is Sanagu, the ancestral domain of the Omeloi, a semi-

nomadic tribe. Omeloi customs are considered the law of the land, subject only to the

Constitution of Ramigo.

While Omeloi have started to embrace modern medicine and political participation, their

educational, technological, environmental conservation, and dispute settlement systems are still

based on their centuries-old traditions.

The Omeloi highly value a tree which grows in clusters on the riverbank, locally called

purahuaca. Its taproot is brewed by the tribe elders for a communal healing and decision-making

ritual called huacasera. It includes drying and smoking of the taproot with the bark and flowers

of the tree. The tea is then brewed over a communal fire. It can cure malaria, diarrhea, and

diseases of the blood.

THE LIMARA OUTBREAK AND THE MALARIA-TREATING CAPABILITIES OF

PURAHUACA

In 2011, the Fersila started experiencing extreme weather conditions and as a result,

certain disease microbes have started mutating. One of these diseases is locally called limara, in

which a mosquito-borne parasite that causes high-fevers, vomiting, diarrhea, and in a deadly

turn, liver and brain damage within one weak if not treated.

In 2012, doctors discovered that the Omeloi had no cases of limara. The smoking ritual

drove away the mosquitoes and that the malaria-treating capabilities of purahuaca would have

cured any suffering villager. Injecting the brew killed the parasite within a week in 90% of
11
infected tissue samples. Out of respect for the Omeloi, the researchers did not patent the

formulation and declined lucrative offers from pharmaceutical companies to develop a drug.

In July 2015, during the rainy season, limara outbreak surged in Ayasa. Importation of

the Ramagian purahuaca was recommended.

An agreement was negotiated but did not push forward because according to the

Ramigian Prime Minister, Aliph Reino, the tribe considered the purahuaca communal property

and the elders of the tribe were not unanimous in agreeing to harvest the tree’s roots for trade.

THE ARRANGEMENT AND THE OMELOI PROTEST

Ayasa bought 40% of the shared of Rylov Corporation, a pharmaceutical company, and

subsidized it to develop treatment. It was found that not only were the Ramigian samples in

themselves more potent, but it was huacasera ritual of smoking and drying with flowers and bark

which actually distilled and purified the disease-combating properties of purahuaca.

Rylov researchers started to cross the river at night to pluck out purahuaca flowers and

strip the bark from the trees at the Ramigian side of the River. When caught, the researchers and

their assistants would bribe the Ramigian border guards. One of the researchers was once caught

by an Omeloi watchman. He was brought to the Council of Elders, who reprimanded him and

was detained until dawn.

They Omeloi elders manifested that they understood the desperation of the Ayasans to

find a cure and allowed limited harvesting of purahuaca. The Purahuaca Harvest and Research

Arrangement (PHRA) was negotiated between them, where Omeloi allowed Ayasan people and

12
machines to enter into their land to harvest the root. But they must pay any damage caused to the

ancestral lands..

The researchers tried and grafted the Ayasan purahuaca with the branches of Ramigian

purahuaca, but the elders protested when they saw the abbreviated version, saying that it was

against tribal custom to graft plants since it would make the original plant unclean. No

community involvement and no prayers were said. Instruments used would also hurt the spirit of

the purahuaca tree.

Rylov researchers had invested 100 trees, 75 more than what was agreed upon in the PHR

Agreement. Feeling insulted, they told the researchers to remove personnel and equipment. The

latter refused to leave so the elders rebuked them, saying that they should pay first and plant new

seedlings before cutting additional trees.

THE COMPLAINT FOR NULLITY OF ISSUANCE OF PATENT AND RECOVERY OF

ROYALTIES

Consequently in May 2017, Rylov was able to produce a drug branded as Huacaxin. They

patented both the drug and the smoking process. The drug was made commercially available.

Aneesa Wygai, a member of the Omeloi tribe who became a lawyer, found out about the

patenting of the chemical compounds used and the huacasera process and asked whether the

elders had been paid royalties. She filed a complaint in the Ayasa courts asking to nullify the

issuance of the patent and for the recovery of royalties based on the PFR Agreement, but it was

dismissed.

13
 Upon receipt of the unfavorable decision, she requested from the Ramigian government

legal assistance. It was granted and Ramigo sent a note verbale to Ayasa, requesting for a

consultative process to settle the dispute.

THE FIRE CAUSED BY OMELOI TRIBESMEN

On the night of February 3, 2018, some of the Omeloi tribesmen, burnt purahuaca trees

on the Ayasan side of the border, angry that the drug was patented without recognition of their

contribution to its development and processing of the drug. The fire reached the edge of the

forest and spread to the farming communities in Ayasa.

The border guards of Ramigo stood by claiming that they had no jurisdiction to intervene

with occurrences on the Ayasan side of the river.

Ramigo refused to take responsibility saying that the Omeloi people are autonomous and

that the Ramigian state did not condone as such us not an act of the state of Ramigo but only of

Omeloi, who are autonomous.

APPLICATION TO THE COURT

Ramigo argues that there was an agreement for the proper use of Ramigo’s natural

resources, yet, Ayasa chose not to abide by the agreement.

Unable to come up with an acceptable solution to the concern of both Ryvol and the

Omeloi, talks between the foreign affairs departments collapsed. The Republic Ayasa and

Confederation of the Ramigian Nations agreed to submit the case to the Court.

14
 SUMMARY OF PLEADINGS

FIRST PLEADING

The Confederation of Ramigian Nations is not liable for the worsening of the limara

outbreak in the Ayasan border. The case is inadmissible before the ICJ for failure of the states to

exhaust local remedies. Furthermore, exceptions to local remedy rule does not apply. The limara

outbreak even resulted from poor farming practices of Ayasa.

Ramigo did not commit an internationally wrongful act for the activities of the Omeloi

tribesmen are not attributable to Ramigo. They are not Ramigo’s state organ by the fact that they

have local autonomy over economic matters. Moreover, conduct of Omeloi tribesmen has not

been adopted by Ramigo.

Even assuming that Omeloi tribesmen's actions are attributable to Ramigo, they did not

violate treaty and customary international laws because the cutting of Ayasa’s access to Sanagu

is a valid countermeasure. This was in response to the breach attributable to Ayasa. The Omeloi

called upon the Rylov scientists and researchers to discontinue its internationally wrongful acts

by manifestation of protest. The relations to the land are not merely a matter of possession that’s

why the countermeasure met the requisites of validity.

SECOND PLEADING

Ramigo did not violate any environmental law for the burning of border trees by the

Omeloi tribe is not attributable to Ramigo. It is is due to Ayasa’s failure to faithfully execute the

agreement.

15
THIRD PLEADING

The use of the plant by Ayasa’s citizens violated the indigenous people’s rights under the

UNDRIPS, ILO convention 169, ICCPR AND ICESCR. The Omeloi tribe is an indigenous

community under ILO 169.

It is important to note that Omeloi acknowledged the necessity of responding to Ayasa’s

health emergency, however, in accordance to the indivisibility principle- that civil and political

rights on one hand, and economic, social and cultural rights on the other, are complementary,

mutually reinforcing and best realized when implemented together, Ayasa’s right to health

cannot prevail over Omeloi’s cultural rights.

FOURTH PLEADING

Ayasa did not acquire intellectual property rights over the drug and the smoking process

for they did not meet the criteria for patentability. Ayasa is liable for Biopiracy and has violated

benefit sharing.

Ayasa also violated the Paris Convention for failure to recognize the contribution of the

Omeloi tribe for its development and processing for how indigenous people’s contributions are

reconciled with intellectual property law.

16
 MAIN PLEADINGS

I. RAMIGO IS NOT LIABLE FOR THE WORSENING OF THE LIMARA

OUTBREAK IN THE AYASAN BORDER

A. THE CASE IS INADMISSIBLE BEFORE THE ICJ FOR FAILURE OF THE

STATES TO EXHAUST LOCAL REMEDIES

“Local remedies” means legal remedies which are open to the injured person before the

judicial or administrative courts or bodies, whether ordinary or special, of the State alleged to be

responsible for causing the injury.1

Brownlie observed that “a claim will not be admissible on the international plane unless

the individual alien or corporation concerned has exhausted the legal remedies available to him

in the state which is alleged to be the author of injury.”2 In Interhandel, the Court exhorted that

the exhaustion of local remedies is a well-established rule of customary international law”

generally applied in diplomatic protection claims, to give “the State where the violation occurred

… an opportunity to redress it by its own means, within the framework of its domestic legal

system,” before resorting to international proceedings.3 Neither Ramigo, Omeloi nor Ayasa have

1
Article 14 (2), Draft Articles on Diplomatic Protection

2
Ian Brownlie, Principles of Public International Law (7th ed. Oxford University Press, Oxford 2008)
492

3 Interhandel, Switzerland v United States, Preliminary Objections, Judgment, ICJ GL No 34, [1959] ICJ
Rep 6, ICGJ 171 (ICJ 1959), 21st March 1959

17
attempted redress in local Ayasan or Ramigian Courts as they were obliged to by customary

international law and by the Protection Agreement.4

B. EXCEPTIONS TO LOCAL REMEDY RULE DOES NOT APPLY.

While Crawford stated that the local remedies rule may be waived by “treaty between the

Forum State and the State of Nationality”,5 in ELSI, the ICJ found itself “unable to accept that an

important principle of customary international law should be held to have been tacitly dispensed

with, in the absence of any words making a clear intention to do so”.6

Article 15 of the Draft Articles on Diplomatic Protection enumerates exceptions to the

local remedies rule7, all of which does not apply in the dispute. Specifically, none of the injured

are manifestly precluded from pursuing local remedies8 and neither States have waived the

requirement9 as evidenced by Article 20 of the Protection Agreement.10 Further, the dispute

4
Article 20, Annex A, Compromis.

5
James R Crawford and Thomas D Grant, ‘Exhaustion of local remedies’ [2007] Max Planck
Encyclopedia of Public International Law
6
Case concerning Elettronica Sicula SpA (ELSI) (US v Italy) [1989] ICJ Rep 15 50

7
Article 15, Draft Articles on Diplomatic Protection

8
Id. (d)

9
Id. (e)

10
Annex A, Compromis.

18
failed to meet the obvious futility test11 - that local remedies need not be exhausted where the

local court has no jurisdiction over the dispute in question12 precisely because a criminal case

may be filed in the courts of the country where the offense took place.13

C. THE LIMARA OUTBREAK RESULTED FROM POOR FARMING

PRACTICES OF AYASA

Ayasa’s soil is fertile due to the sediments deposited by the Lusewa River. This is why

agriculture is Ayasa’s primary industry. However, soil fertility declined due to poor farming

activities which eventually resulted to less productive harvests and less nutritious crops.14 It is

therefore reasonable to conclude that the outbreak was caused by the insufficiency of Purahuaca

which did not grow as abundantly and as potent as those in Sanagu due to Ayasa’s poor farming

practices which lead to the decline of their soil’s fertility.

11
Norwegian Loans (France v. Norway), Judgment, I.C.J. Reports 1957, at p. 39.

12
Panevezys-Saldutiskis Railway case, at p. 18, Arbitration under Article 181 of the Treaty of Neuilly,
reported in AJIL, vol.28. (1934), p. 760 at p. 789;
13
Annex A, Compromis
14
Ibid ¶33

19
 D. RAMIGO DID NOT COMMIT AN INTERNATIONALLY WRONGFUL ACT

3. THE ACTIVITIES OF THE OMELOI TRIBESMEN ARE NOT

ATTRIBUTABLE TO RAMIGO

a. OMELOI TRIBESMEN ARE NOT RAMIGO’S STATE ORGAN

In theory, the conduct of all human beings, corporations or collectivities linked to the

State by nationality, habitual residence or incorporation might be attributed to the State, whether

or not they have any connection to the Government. In international law, such an approach is

avoided, both with a view to limiting responsibility to conduct which engages the State as an

organization, and also so as to recognize the autonomy of persons acting on their own account

and not at the instigation of a public authority. Thus the general rule is that the only conduct

attributed to the State at the international level is that of its organs of government, or of others

who have acted under the direction, instigation or control of those organs, i.e. as agents of the

State.15

The Omeloi tribe were not, in any way, exercising any executive, legislative, judicial or

other governmental function in any and all of their acts, to be considered a state organ.16 Further,

internal laws of the Confederation of Ramigian Nations has not classified nor characterized the

tribe to be as such.17 Elements of governmental authority are exercised when a particular entity

has been empowered by the law of that state to exercise functions of a public character normally

15
I. Brownlie, System of the Law of Nations: State Responsibility, Part I (Oxford, Clarendon Press, 1983),
pp. 132–166; The Iran-United States Claims Tribunal: Its Contribution to the Law of State Responsibility,
R. B. Lillich and D. B. Magraw, eds. (Irvington-on-Hudson, N.Y., Transnational, 1998), p. 109;
16
Article 4(1), Responsibility of States for Internationally Wrongful Acts, 2011
17
Id. Article 4(2)

20
exercised by state organs.18 When there is no performance of a public function, and the conduct

is partially commercial in nature, such could not be attributed to the State.19

b. THE OMELOI TRIBESMEN HAVE LOCAL AUTONOMY OVER

ECONOMIC MATTERS

Internationally wrongful acts of States arise when there is an act or omission attributable

to said State, which constitutes a breach of an international obligation.20Hence, conduct of

private individuals or entities, not acting on behalf of the State, is not considered as an act of the

State under international law.21 Such conduct may be attributed to the State if and only to the

extent that it has acknowledged and adopted said conduct as its own22, clearly and

unequivocally.23 Ramigo refused to take responsibility, with Prime Minister Reino saying that

the Omeloi people are autonomous and that the Ramigian state did not condone as such is

not an act of the state of Ramigo but only of the Omeloi, who are autonomous (¶33,

Compromis). Autonomous areas are regions of a State, usually possessing some ethnic or

cultural distinctiveness, which have been granted separate powers of internal administration, to

18
Id. Article 5(1)
19
Emilio Agustín Maffezini v. The Kingdom of Spain, ICSID Case No. ARB/97/7
20
Articles of State Responsibility (ASR), G.A. Res. 56/83, Annex UN Doc. A/RES/58/83/Annex
(January 28, 2002), art.2.
21
Id. art.11, in relation to arts.5-10; Harris, supra note 63 at 431.
22
ASR, supra note 95.
23
Crawford, The International Commission’s Articles on State Responsibility: Introduction, Text and
Commentaries (2002) at 123.

21
whatever degree.24 Confederation of Ramigian nations is composed of autonomous regions

reporting to a central government with limited powers. The autonomous regions decide on their

own infrastructure, natural resource utilization, local taxes, business laws, and use of allocated

funds from the central government (R.5). The Purahuaca Harvest and Research Arrangement

(Annex B) was negotiated ONLY between the Omeloi and the Ayasan government—it did not

involve Ramigo (¶20, Compromis).

c. CONDUCT OF OMELOI TRIBESMEN HAS NOT BEEN ADOPTED

BY RAMIGO

One of the exceptions to the aforementioned rule of non-attribution of conduct is when

the state acknowledges or adopts private conduct as its own.25 This does not mean mere factual

acknowledgement26 i.e. to say mere ‘approval’ or ‘endorsement’ of conduct, does not involve

assumption of responsibility.27 For example, in the Lighthouses arbitration, Greece was held

liable for the breach of a concession agreement initiated by Crete at a period when the latter was

an autonomous territory of the Ottoman Empire, partly on the basis that the breach had been

“endorsed by Greece and eventually continued by her, even after the acquisition of territorial

24
James Crawford, The Creation of States in International Law 323 (Oxford Univ. Press 2d ed. 2006).
25
Article 11, Responsibility of States for Internationally Wrongful Acts, 2011
26
SHAW, INTERNATIONAL LAW 119 (2008).
27
supra note 2, Art.11,Responsibility of States for Internationally Wrongful Acts

22
sovereignty over the island”.28 Herein, Ramigo has acknowledged only the factual existence of

the breaches but it has not assumed responsibility to adopt these activities as its own. It clearly

denied the existence of any control of the government over such private acts.

4. EVEN ASSUMING THAT OMELOI TRIBESMEN'S ACTIONS ARE

ATTRIBUTABLE TO RAMIGO, THEY DID NOT VIOLATE TREATY AND
CUSTOMARY INTERNATIONAL LAWS

a. THE COUNTERMEASURE WAS IN RESPONSE TO THE BREACH

ATTRIBUTABLE TO AYASA

Article 49(1) of ASR requires that the countermeasure be (1) directed against a State that

committed an internationally wrongful act in order (2) to induce that State’s compliance with its

international obligations.29 On the first element, the prohibition was directed against Rylov

researchers who are employees of Rylov Corporation, a state organ of Ayasa. Rylov Corporation

is Ayasa’s state organ for it was bought by the government to develop treatment- a function of

public character (¶17, Compromis).30 In violating the Purahuaca Harvest and Research

Agreement (PHRA), Ayasa failed to carry out the principle of pacta sunt servanda which

demands that sovereign parties to an international treaty should abide by the terms of a treaty in

good faith.31 Further, violation of the PHRA falls squarely as a breach of an international

28
Affaire relative a la concession des phares de l’Empire ottoman, UNRIAA, vol. XII (Sales No. 63.V.3),
p. 155, at p. 198 (1956).
29
Article 49(1), Responsibility of States for Internationally Wrongful Acts, 2011
30
Article 5(1), Responsibility of States for Internationally Wrongful Acts, 2011
31
Article 26, Vienna Convention on the Law of Treaties
23
obligation for the act of Ayasa is not in conformity with what is required of it by its

obligations.32

b. THE OMELOI CALLED UPON THE RYLOV SCIENTISTS AND

RESEARCHERS TO DISCONTINUE ITS INTERNATIONALLY
WRONGFUL ACTS

Before resorting to countermeasures, the injured State must call on the responsible State

to cease its violations.33 The Omeloi elders manifested their protest upon seeing processes

contrary to theirs and to the agreement.34The Rylov researchers were made aware that before

they can extract more, they should pay first and plant more seedlings.35

c. THE RELATIONS TO THE LAND ARE NOT MERELY A MATTER

OF POSSESSION

Among indigenous peoples there is a communitarian tradition regarding a communal

form of collective property of the land, in the sense that ownership of the land is not centered on

an individual but rather on the group and its community.36 For indigenous communities, relations

to the land are not merely a matter of possession and production but a material and spiritual

32
Article 12, Responsibility of States for Internationally Wrongful Acts, 2011
33
Id.Article 52 (1a)
34
(¶23, 24, Compromis).
35
Ibid. ¶25
36
Mayagna Awas Tingni Community v. Nicaragua; Judgment of Aug.31, 2001, par.149

24
element which they must fully enjoy, even to preserve their cultural legacy and transmit it to

future generations.37

d. THE COUNTERMEASURE MET THE REQUISITES OF VALIDITY

It is recognized both by Governments and by the decisions of international tribunals that

countermeasures are justified under certain circumstances.38 In prohibiting Rylov’s access to

Sanagu, the Omeloi carried out a “reciprocal countermeasure”- one which involve suspension of

performance of obligations towards the responsible State “if such obligations correspond to, or

are directly connected with, the obligation breached”.39 It is also recognized that

countermeasures are strictly limited to the requirements of the situation and that there are

adequate safeguards against abuse.40

First, it must concern only non-forcible countermeasures.41 As previously stated,

Omeloi’s countermeasure was only a prohibition with no use of force or threat (¶34,

Compromis). Second, countermeasures are limited by the requirement that they be directed at the

37
Ibid.
38
E. Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Dobbs Ferry, N.Y.,
Transnational, 1984), pp. 179–189;
39
William Riphagen, article 8 of Part Two of the draft articles, Yearbook . . . 1985, vol. II (Part One), p.
10, document A/ CN.4/389.
40
Materials on the Responsibility of States For Internationally Wrongful Acts, United Nations Legislative
Series, New York, 2012, Book 25, pp. 306
41
Article 50(1a), Responsibility of States for Internationally Wrongful Acts,2011

25
responsible State and not at third parties.42 The prohibition was directed to Rylov Researchers

who are employees of Rylov Pharmaceutical owned by Ayasa. Third, since they are taken with a

view to procuring cessation of and reparation for the internationally wrongful act and not by way

of punishment—they are temporary in character and must be as far as possible reversible in their

effects in terms of future legal relations between the two States.43 It is deducible that the

prohibition is only until the States have arrived to an equitable solution through their negotiation

(¶34, Compromis). Fourth, countermeasures must be proportionate.44 Proportionality requires

not only employing the means appropriate to the aim chosen, but implies, above all, an

assessment of the appropriateness of the aim itself.45 And the aim of the prohibition is to

conserve and protect the integrity of their territory and culture. In the words of the ICJ in the

Case Concerning The United States Diplomatic and Consular Staff in Tehran46, there is the “use

of the mildest means of self-redress”.47 Considering the excessive harvest of purahuaca, (¶25,

Compromis), and the abbreviation of the process (¶24, Compromis), a mere prohibition to access

Sanagu could even be less than equitable. Fifth, they must not involve any departure from

42
Article 49(1) & (2), Responsibility of States for Internationally Wrongful Acts, 2011
43
Id at par. (2) & (3), Article 53
44
Art.51,Responsibility of States for Internationally Wrongful Acts, 2011
45
Case Concerning the United States Diplomatic and Consular Staff in Tehran, 24 May 1980, ICJ Reports
(1980) 2.
46
Judgment of 24 May 1980, ICJ Reports (1980) 2.
47
Id.

26
certain basic obligations, in particular those under peremptory norms of general international

law.48

II. RAMIGO DID NOT VIOLATE ANY ENVIRONMENTAL LAW BY BURNING

THE BORDER TREES

B. THE BURNING OF BORDER TREES BY THE OMELOI TRIBE IS NOT

ATTRIBUTABLE TO RAMIGO

Ultimately, “physical control of territory and not sovereignty or legitimacy of title, is the

basis of State Liability for acts affecting other States”.49 In burning the purahuaca on the side of

Ayasa50, Omeloi was neither performing an act as a state organ51, nor performing a governmental

function to be considered a state organ52, nor classified by Ramigo as such.53 Even the PHRA is

explicitly an agreement only between Ayasa and the Omeloi tribe.54

Further, Ramigian guards could not be faulted with the burning owing to the fact that

they simply stood by without doing anything.55 Under the provision on Border Protection each

party shall send a contingent to patrol the rainforest in order to prevent destruction, vandalism or

48
Article 50(1), Responsibility of States for Internationally Wrongful Acts,2011
49
Legal Consequences for States of the Continued Presence of South Africa in Namibia notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, (1971) ICJ Rep.16, 54, ¶118
50
Compromis, ¶29
51
I. Brownlie, System of the Law of Nations: State Responsibility, Part I (Oxford, Clarendon Press, 1983),
pp. 132–166
52
Article 4(1), Responsibility of States for Internationally Wrongful Acts, 2011
53
Id. Article 4(2)
54
Compromis, ¶20

55
Id. ¶31

27
unlawful.56 It is thus incumbent, first and foremost, upon Ayasan guards to respond to the

occurrences on their side of the river.

C. THE BURNING OF THE BORDER TREES IS DUE TO AYASA’S

FAILURE TO FAITHFULLY EXECUTE THE AGREEMENT

Rather than serving as a mere source of subsistence, the lands and resources of

indigenous communities are part of their social, ancestral and spiritual essence, and are necessary

to the tribe’s survival.57 Further, cultural and economic survival of indigenous tribal people

depends on their ability to use the natural resources that are linked with their traditions.58 Justice

and collective responsibility are central tenets within traditional society. If the community is

wronged, there is an obligation to avenge the offense committed.59 The non-recognition of the

contributions of the Omeloi to the development of the drug, which is a form of discrimination,60

prompted the tribe to burn the purahuacas in the Ayasan side of the river.61 Internationally

accepted ideas of the various obligations engendered by human rights indicate that all rights,

both civil and political rights and social and economic, generate at least four levels of duties for a

State that undertakes to adhere to a rights regime, namely the duty to respect, protect, promote,

56
Id. Annex A, Art.15
57
Samaraka v. Suriname, IACHR Series C No 185, IHRL 3058 (IACHR 2008), 12th August 2008, Inter-
American Court of Human Rights [IACtHR], para.82;
58
Ibid. para.120
59
Moiwana Community v. Suriname, Judgment of June 15, 2005, para.86(10)
60
International Convention on the Elimination of All Forms of Racial Discrimination, Art.1
61
Compromis, ¶29

28
and fulfil these rights.62 Governments have a duty to protect their citizens, not only through

appropriate legislation and effective enforcement but also by protecting them from damaging

acts that may be perpetrated by private parties. 63This duty calls for positive action on [the] part

of governments in fulfilling their obligation under human rights instruments.64 Since Ayasa

failed to comply with its duties and obligations to the detriment of the Omeloi, it subjected itself

to the anger of the tribe, manifested through the burning of the purahuaca on the Ayasan side of

the river65 which is deducible as the perceived measure of the tribe to avenge the offenses

committed against them.66

D. RAMIGO DID NOT VIOLATE ANY INTERNATIONAL

ENVIRONMENTAL LAW

NO VIOLATION OF THE CONVENTION ON BIOLOGICAL DIVERSITY

Article 5 states that Contracting Parties shall cooperate with other Contracting Parties for the

conservation and sustainable use of biological diversity as far as possible and as appropriate.67

Omeloi elders eventually manifested to have understood the desperation of the Ayasan to find a

62
Ogoni v. Nigeria, Communication No.155/96, 27 May 2002, African Commission on Human and
People’s Rights, para.44.
63
Id. Para.57
64
Id.
65
Compromis, ¶29
66
Moiwana Community v. Suriname, Judgment of June 15, 2005, para.86(10)
67
Convention on Biological Diversity, United Nations 1992

29
cure and allowed harvesting of the Purahuaca.68 As a result of such cooperation, the PHRA was
69
negotiated between parties. Under Article 8(c) contracting parties shall regulate and manage

biological resources within or outside protected areas with a view to ensuring their conservation

and sustainable use.70 This has been complied with through the Protection Agreement71

particularly the provision on border.

III. THE USE OF THE PLANT BY AYASA’S CITIZENS VIOLATED THE

INDIGENOUS PEOPLE’S RIGHTS.

C. THE OMELOI TRIBE IS AN INDIGENOUS COMMUNITY.

The UN Declaration on the Rights of Indigenous Peoples identifies “indigenous peoples”

72
as being the beneficiaries of the rights contained in the Declaration. The International Labour

Convention No.169 of 1989 defines indigenous peoples as descendants of populations that

inhibited a country at the time of conquest, colonization and the establishment of extant state

borders.73 They form at present non-dominant sectors of society and are determined to preserve,

develop and transmit to future generations their ancestral territories, and their ethnic identity, as

68
Compromis, ¶20
69
Id.
70
Id. Article 8(c)
71
Annex A, Compromis
72
UN Document A/61/L.67 12 September 2007: The United Nations Declaration on the Rights of

Indigenous Peoples
73
Article 1(b), International Labour Convention No.169

30
the basis of their continued existence as peoples, in accordance with their own cultural, social

institutions and legal systems.74

The Omelois have lived in both sides of the Lusewa Rainforest for centuries75 until they

were allowed to go back to Sanagu in the 18th century.76 Since Sanagu became an autonomous

region in 1915,77 Omeloi customs are considered the law of the land. The Omeloi tribe’s

historical continuity is a descent from pre-colonization societies78; they have a territorial

connection to Sanagu79 and they retain their own distinctive social, economic, cultural and

political institutions.80 Thus, the Omelois are considered indigenous peoples under ILO 169.81

74
José Martinez Cobo, “Study of the Problem of Discrimination Against Indigenous Populations”, supra.
75
Compromis, ¶6.
76
Compromis, ¶7.
77
Ibid.
78
Compromis, ¶6.
79
Compromis, ¶7.
80
Compromis, ¶8..
81
ILO, “Indigenous & Tribal peoples’ rights in practice – A guide to ILO Convention No. 169”
Programme to Promote ILO Convention No. 169 (PRO 169), International Labour Standards Department,
2009, p. 9; Case of Ituango-massacre v. Colombia, 2006 Inter-Am. Ct. H.R (ser. C) No. 148, (July 1,
2006),

31
 D. AYASA VIOLATED THE RIGHTS OF INDIGENOUS PEOPLES UNDER THE
UNDRIPS, ILO CONVENTION 169, ICCPR AND ICESCR.

1. VIOLATION OF THE ILO CONVENTION NO. 169.

The Declaration and Convention No. 169 are based on the recognition of the particular

significance and cultural and spiritual values that indigenous peoples attach to their lands and

territories, which go far beyond their simple monetary or productive value.82 Both instruments

stipulate that indigenous peoples have the right to determine their priorities and strategies for

development and use of their lands, territories, and resources.83 In general, indigenous peoples’

rights to land, territories, and resources must be understood in the broader context of these

peoples’ right to self- determination84 as well the rights to property85, non-discrimination86,

cultural integrity, and development,87 traditional occupation, ownership, or use.88

a. Right to property.

The Inter-American Court of Human Right (IACHR) has extended the right to property in

Awas Tingni to the rights of members of an indigenous community to hold communal

82
INTER-AGENCY SUPPORT GROUP ON INDIGENOUS PEOPLES’ ISSUES, “Land, Territories
and Resources”
<http://www.un.org/en/ga/president/68/pdf/wcip/IASG%20Paper%20_%20Lands%20territories%20and
%20resources%20-%20rev1.pdf> (last visited October 21, 2018)
83
UNDRIP art. 32(1); ILO Convention 169 art. 7(1).
84
UNDRIP, Article 3.
85
UNDRIP, Article 31.
86
UNDRIP, Article 2.
87
UNDRIP, Article 8.
88
UNDRIP, Article 26.

32
property.89 “Property” can be defined as those material things which can be possessed, as well as

any right which may be part of a person’s patrimony; that concept includes all movables and

immovables, corporeal and incorporeal elements and any other intangible object capable of

having value.90 In this case, the purahuaca is considered a communal property by an indigenous

community.91

In Samaraka People v. Suriname92, the IACHR established safeguards when granting

concessions to avoid violation of the indigenous community’s right to property.93 Ayasa failed to

ensure the effective participation of the indigenous people, in conformity with their customs and

traditions, regarding the harvesting and smoking process of the purahuaca.94 Ayasa also failed to

guarantee that the indigenous people will receive a reasonable benefit from the harvesting of

purahuaca because they had 75 more trees that was agreed upon in the PHR Agreement.95

b. Right to consultation and free, prior and informed consent.

Both UNDRIP and Convention No. 160 comprise general provisions related to the duty

of states to consult and cooperate with indigenous peoples, in order to obtain free, prior, and

89
Mayagna (Sumo) Awas Tingni Community v. Nicaragua, ¶148-149
90
Id. ¶144. See also, Ivcher Bronstein Case. Judgment of February 6, 2001. C Series No. 74, para. 122
91
Compromis, ¶ ¶9,16.
92
Saramaka People v Suriname,IACHR Series C No 185, IHRL 3058 (IACHR 2008), 12th August 2008,
Inter-American Court of Human Rights [IACtHR]
93
Id. ¶129
94
Compromis, ¶24,
95
Compromis, ¶25.

33
informed consent.96 States have a duty to consult indigenous peoples “in order to obtain their

free, prior and informed consent prior to the approval of any project affecting their lands or

territories and other resources, particularly in connection with the development, utilization or

exploitation of mineral, water or other resources”.97 Such consultations should include a genuine

dialogue between governments and indigenous and tribal peoples characterized by

communication and understanding, mutual respect, good faith98 and undertaken with the

objective of reaching agreement or consent to the proposed measures.99 The indigenous

community must be able to influence the actual decision-making. 100This duty requires the State

to consult in good faith, through culturally appropriate procedures and with the objective of

reaching an agreement.101 It must also be highlighted that even if the consultation process has

been concluded without agreement or consent, the decision taken by the state must still respect

the substantive rights of indigenous peoples, e.g. the rights to land and to property.102

96
UNDRIP Article 19,32(1); ILO Convention 169 article 6 and15(2).
97
UNDRIP, Article 32(2)
98
ILO, “Procedures for Consultaitons with Indigenous Peoples”
<http://www.ilo.org/wcmsp5/groups/public/---dgreports/---
gender/documents/publication/wcms_534668.pdf> (last vivisted October 21, 2018)
99
ILO, 2013:13.
100
Apirana Mahuika et al. v. New Zealand (17th session, 2000), U.N. Doc. CCPR/C/70/D/547/1993, Nov.
15, 2000, para. 9.6
101
Saramaka People v. Suriname, supra. ¶133.
102
ILO, 2013: 16.

34
 Ayasa did not meet this requirement because the Omeloi initially refused the harvesting

of the plant root for trade. 103 Further, no prior and informed consent was obtained because Rylov

researchers had to resort to illicitly pluck out purahuaca flowers and bribe Ramigian border

guards once caught.104 The initial negotiations was also between Ayasan’s Department of Trade

and Commerce and Ramigo, not between Ayasa and Omeloi.105 While the Purahuaca Harvest

and Research Arrangement106 provides for consultations with the community in Article 20107,

Rylov researchers fell short in compliance as evidenced by their unpermitted grafting process,

abbreviation of the smoking and drying process, and the barbaric use of metal cutters.108

c. Right to receive reasonable benefit

Indigenous peoples contribute with natural resources and thus are entitled to share in the

benefits.109 The concept of benefit-sharing, which can be found in various international

instruments regarding indigenous and tribal peoples’ rights110 can be said to be inherent to the

103
Compromis, ¶16.
104
Compromis, ¶17.
105
Compromis, ¶16.
106
Annex B, Compromis
107
Article 20, Annex B, Compromis
108
Compromis, ¶¶20, 24.
109
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People, Mr. Rodolfo Stavenhagen, U.N. Doc. E/CN.4/2003/90 (Jan. 21, 2003), paras. 52 and
70.
110
United Nations Declaration on the Rights of Indigenous Peoples, Article 32; d I.L.O. Convention No.
169, Article 15(2).

35
right of compensation recognized under Article 21(2) of the Convention111 which states that “no

one shall be deprived of his property except upon payment of just compensation, for reasons of

public utility or social interest, and in the cases and according to the forms established by

law”.112 The Court considers that the right to obtain compensation under Article 21(2) of the

Convention extends not only to the total deprivation of property title by way of expropriation by

the State, for example, but also to the deprivation of the regular use and enjoyment of such

property.113

In the present context, the right to obtain “just compensation” pursuant to Article 21(2) of

the Convention translates into a right of the Omeloi tribe to reasonably share in the benefits made

as a result of a restriction or deprivation of their right to the use and enjoyment of the purahuaca

necessary for their survival.114 This is also not met by Ayasa. The amount Ayasa paid was only

worth 25 purahuaca trees, but their harvest went as far as 100 trees.115 Further, the Omeloi Tribe

were not paid royalties for the smoking and drying process after the patenting of the drug and the

smoking process.116

111
American Convention on Human Rights.
112
Id. ¶21(2)
113
Saramaka People v. Suriname, p.139
114
Compromis, ¶¶20,21.
115
Compromis, ¶¶21,25.
116
Compromis, ¶¶26,27.

36
 d. Prior environmental and social impact assessments

The Purahuaca Harvest and Research Arrangement did not provide for any environmental

or social impact assessments.117 Even the negotiations only resulted to an agreement wherein

Omeloi will allow Ayasan people and machines to enter their land and harvest the roots while

Ayasa will pay for the extraction of the plants, use of the huacasera process and any damage to

the ancestral lands.118

2. VIOLATION OF THE UNDRIP.

Control by indigenous peoples over developments affecting them and their lands,

territories and resources will enable them to maintain and strengthen their institutions, cultures

and traditions, and to promote their development in accordance with their aspirations and

needs”.119 Ayasa violated the Omeloi’s (a) right to conserve vital medicinal plants; and (b) the

right to use resources possessed by reason of traditional ownership.

a. Right to conserve vital medicinal plants

Indigenous peoples have the right to their traditional medicines and to maintain their

health practices, including the conservation of their vital medicinal plants, animals and

minerals.120 The Omeloi has limited the harvesting to only 25 trees121 considering the fact that

117
Annex B, Compromis.
118
Compromis, ¶20.
119
UNDRIP,Preamble
120
UNDRIP, Article 24.
121
Compromis, ¶21.

37
the purahuaca blooms only once in every four years122 and in harvesting an excess of 75
123
puruahaca trees, Ayasa disregarded the Omeloi’s right to conserve their vital medicinal

plants.124

b. Right to use, develop and control resources possessed by reason of traditional

ownership

Indigenous peoples have the right to own, use, develop and control the lands, territories

and resources that they possess by reason of traditional ownership or other traditional occupation

or use, as well as those which they have otherwise acquired.125 The right to control is apparent in

the agreement126 to the effect that the methods of harvesting and the subsequent processing of the

purahuaca shall be chosen in consultation with the Elders of the Omeloi Tribe.127 In grafting the

plant128 and by abbreviating the smoking process129, Ayasa has violated such right.

122
Compromis, ¶11.
123
Compromis, ¶25.
124
UNDRIP, Article 24.
125
Id. Art.26(2)
126
Annex B, Compromis
127
Art.20, Annex B, Compromis
128
Compromis, ¶22.
129
Compromis, ¶24.

38
 3. VIOLATION OF THE ICCPR AND ICESCR.

Having ratified both conventions, Ayasa recognizes that in accordance with the Universal

Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and

want can only be achieved if conditions are created whereby everyone may enjoy his economic,

social and cultural rights.130 Ayasa’s failure to comply with the PHRA131, failure to observe the

safeguards for the protection of Omeloi’s right to property132 negates their recognition of the

principle,and their observance of the basic principle of pacta sunt servanda. 133

4. VIOLATION OF THE CBD.

Ayasa has the responsibility to rehabilitate and restore degraded ecosystems and

recovery of threatened species, inter alia, through the development and implementation of plans

or other management strategies.134 Ayasa’s failure to implement mechanisms to address their

poor farming practices135, and merely opting to graft their purahuaca with Ramigian’s

130
Preamble, International Covenant on Economic, Social and Cultural Rights
131
Annex B, Compromis
132
Saramaka People v Suriname,IACHR Series C No 185, IHRL 3058 (IACHR 2008), 12th August 2008,
Inter-American Court of Human Rights [IACtHR]
133
Pacta Sunt Servanda Versus The Social Role of Contracts: Case of Brazilian Agriculture Contracts,
Rezende & Zylbersztajn, June 2012.
134
Art. 8(F), Convention on Biological Diversity
135
Compromis, ¶4

39
purahuaca136in an attempt to grow a more potent plant, readily shows Ayasa’s failure to comply

with the responsibility to rehabilitate and restore, as part of in-situ conservation.137

Further, Ayasa is bound to respect, preserve and maintain knowledge, innovations and

practices of indigenous communities embodying traditional lifestyles relevant for the

conservation of biological diversity and promote wider application, with the approval and

involvement of the holders of such knowledge and practices and encourage the equitable sharing

of the benefits arising from the utilization of such knowledge and practices.138 Ayasa’s failure to

faithfully execute the provisions of the Purahuaca Harvest and Research Agreement139, negates

Ayasa’s fulfillment of such responsibility.

C. CULTURAL RIGHTS OF OMELOI PREVAIL OVER AYASA’S PUBLIC HEALTH

EMERGENCY
Having ratified both ICCPR140 and ICESCR141, Ayasa acknowledges the right of

everyone to take part in cultural life142 and to benefit from the protection of the moral and

material interests resulting from any scientific, literary or artistic production of which he is the

author.143 Further, in those States in which ethnic minorities exists, persons belonging to such

136
Ibid. ¶22
137
Art. 8(F), Convention on Biological Diversity
138
Ibid. Art. 8(J)
139
Compromis, Annex B
140
International Covenant on Civil and Political Rights
141
International Covenant on Economic, Social and Cultural Rights
142
Ibid. Art.15 (A)
143
Ibid. Art. 15(C)

40
minorities shall not be denied the right, in community with the other members of their group, to

enjoy their own culture.144 It is important to note that Omeloi acknowledged the necessity of

responding to Ayasa’s health emergency145 , however, in accordance to the indivisibility

principle- that civil and political rights on one hand, and economic, social and cultural rights on

the other, are complementary, mutually reinforcing and best realized when implemented

together,146 Ayasa’s right to health cannot prevail over Omeloi’s cultural rights.

IV. AYASA DID NOT ACQUIRE INTELLECTUAL PROPERTY RIGHTS OVER

THE DRUG AND THE SMOKING PROCESS.

A. AYASA IS LIABLE FOR BIOPIRACY.

Traditional knowledge is knowledge developed by indigenous communities147 or

tradition-based intellectual activity.148 Examples of traditional knowledge include the use of the

hoodia149 cactus by the Kung Bushmen in Africa to stave off hunger, the use of j'oublie150 in

144
Art. 27, International Covenant on Civil and Political Rights
145
Compromis, ¶20
146
Dorothea Anthony, Indivisibility of Human Rights: A Theoretical Critique

147
See Daniel Gervais, Traditional Knowledge and Intellectual Property: A TRIPS- Compatible
Approach, MICH. ST. L. REV. 137, 140 (2005).
148
WORLD INTELLECTUAL PROP. ORG., INTELLECTUAL PROPERTY NEEDS AND
EXPECTATIONS OF TRADITIONAL KNOWLEDGE HOLDERS: WIPO REPORT ON FACT-
FINDING MISSIONS ON INTELLECTUAL PROPERTY AND TRADITIONAL KNOWLEDGE
(1998-1999), at 25 (Apr. 2001),

149
Lere Amusan,, “Politics Of Biopiracy: An Adventure Into Hoodia/Xhoba Patenting In Southern
Africa”, African Journal, Traditional, Complementary and Alternative Medicine 2017; 14(1): 103–109.

41
Cameroon and Gabon as a sweetener, and the use of ground roots151 in Mexico for removing

teeth.152 Like the purahuaca and huacasera, each natural product has its own method of

preparation153that has been developed from generation to generation within these communities. It

is this specialized knowledge that is now sought by Ayasa.

The misappropriation and commercialization of genetic resources and traditional

knowledge of rural and indigenous people is termed as biopiracy.154 It refers to unauthorized

extraction of biological resources and/or associated traditional knowledge from developing

countries or to the patenting of spurious ‘inventions’ based on such knowledge155 or resources

without compensation’.156 The patent acquired by Ayasa is illegal because it does not recognize,

150
Fariba Assadi-Porter . “How Sweet It Is: Detailed Molecular and Functional Studies of Brazzein, a
Sweet Protein and Its Analogs.”. Department of Biochemistry, University of Wisconsin-Madison,
Madison
151
Giovannini P, Reyes-García V, Waldstein A, Heinrich M. Do pharmaceuticals displace local
knowledge and use of medicinal plants? Estimates from a cross-sectional study in a rural indigenous
community, Mexico. Social Science & Medicine. 2011; 72, 928–936.
152
STEPHEN HANSEN & JUSTIN VANFLEET, TRADITIONAL KNOWLEDGE AND
INTELLECTUAL PROPERTY: A HANDBOOK ON ISSUES AND OPTIONS FOR TRADITIONAL
KNOWLEDGE HOLDERS IN PROTECTING THEIR INTELLECTUAL PROPERTY AND
MAINTAINING BIOLOGICAL DIVERSITY 3 (2003)
153
John A. Beutler. Natural Products as a Foundation for Drug Discovery. Curr Protoc Pharmacol. 2009
Sep 1; 46: 9.11.1–9.11.21.
154
Divyangana Dhankar. Commercialisation and Biopiracy of Genetic Resources in the 21st Century: The Imminent
Need for Stronger Regulation. 2016 April 17
155
Barnes EC. The use of isolated natural products as scaffolds for the generation of chemically diverse
screening libraries for drug discovery. 2016 Mar;33(3):372-81. doi: 10.1039/c5np00121h. Epub 2016 Jan
156
Dutfield G, Intellectual Property, Biogenetic Resources and Traditional Knowledge (Earthscan
Publications, London), 2004, p. 52.

42
respect or adequately compensate the rightful owners of the life forms appropriated or the

traditional knowledge related to their propagation, use and commercial benefit.157

Biopiracy is the illegal appropriation of life—microorganisms, plants and animals

including humans—and the traditional cultural knowledge that accompanies it. It infringes on a

community’s rights to a plant or substance.158 Such misappropriation of TK results in grant of

patent for the invention to the “first–to–file” (the pharmaceutical company) rather than to the

“first–to–invent” (the indigenous community).159

Such examples of importance are the patents of Neem160, Turmerich161, Ayahuasca162, the

Hoodia cactus163and the Tepezcohuite164, which all can be read about below. Such an

understanding of misappropriation would also be mutually supportive to Article 2 of the CBD

which acknowledges that states have a sovereign right over the resources within their jurisdiction

157
Ajeet Mathur. Who Owns Traditional Knowledge? Economic and Political Weekly

Vol. 38, No. 42 (Oct. 18-24, 2003), pp. 4471-4481

158
Supra 4

159
Ibid

160
65 patents are filed on the Neem.
161
U.S. Pat. 5,401,504
162
U.S. Pat PP 05751.
163
WO 9846243.
164
U.S. Pat. 4,883,663 and U.S. Pat. 5,122,374.

43
and if those resources were utilised in patents or in any other system without the consent of the

sovereign then misappropriation or bio piracy is said to have taken place. 165

B. AYASA DID NOT MEET THE CRITERIA FOR PATENTABILITY.

Minimum standards for patent law exist internationally, as evidenced by Article 27 of the

Trade-Related Aspects of Intellectual Property Rights (TRIPs) agreement. This article provides

that “patents shall be available for any inventions, whether products or processes, in all fields of

technology, provided that they are new, involve an incentive step and are capable of industrial

application. However, nations can choose to exclude certain inventions, such as those that harm

the public, types of medical treatments, and certain plants from patentability.

If a patent does not respect one of the three criteria for access (novelty, inventiveness and

commercial application), it is not legally admissible and must be canceled. Thus, a patent based

on traditional knowledge is illegal, because it does not respect the principle of novelty, nor does

it respect the criteria of inventiveness.

Rylov contends that they acquired a patent over the drug and the smoking process. (r. 26)

However, the smoking process (r. 10) was not followed by the researchers in making the drug.

What was covered by the patent were thus limited to the “modern techniques”. (r. 26)

The smoking process of the huacasera is a traditional knowledge that belongs exclusively

to the Omelois.166 Cultural property is property which has a special cultural significance to a

165
Art.2, Convention on Biological Diversity
166
Compromis, ¶17

44
nation, being intertwined with the very identity of the group claiming it,167 serving as basis for

cultural memory,168 and reflecting the history of lost civilizations. Thus, the Huacasera ritual and

the Puruhuaca tree are cultural properties. 169

C. AYASA VIOLATED BENEFIT SHARING

Pharmaceutical bio-prospecting has been sharply criticized for what has become known as

‘biopiracy’ in which large international pharmaceutical corporations make use of local

indigenous or traditional knowledge without acknowledging that it is indigenous intellectual

170
property. Thus, profits have accrued solely to the pharmaceutical companies and indigenous

peoples received little or nothing in return. 171, this the Omelois never had.172

167
Cohan, An Examination of Archaelogical Ethics and the Repatriation Movement Respecting Culural
Property (Part Two), 28 Environs Envt’l. L. & Pol’y J. 1 (2004).

168
Merryman, The Public Interest in Cultural Property, 77 Calif. L. Rev. 339 (1989).

169
Chimento, Comment: Lost Artifacts of the Incas: Cultural Property and the Repatriation Movement, 54
Loy. L. Rev. 209 (2008).

170
Juan B (2017) Bioprospecting and Drug Development, Parameters for a Rational Search and Validation of
Biodiversity. J Microb Biochem Technol 9:e128. doi:10.4172/1948-5948.1000e128

171
Ibid.

172
Compromis, p. 27

45
 D. AYASA VIOLATED THE PARIS CONVENTION FOR FAILURE TO
RECOGNIZE THE CONTRIBUTION OF THE OMELOI TRIBE FOR ITS
DEVELOPMENT AND PROCESSING.

Ayasa violated its duty under Section 20 of the Purahuaca Harvest and Research

Agreement. (r. Annex B, Art. 20). ¶ A patent is a legal document granted by a government giving

exclusive rights to the inventor. The original theory behind patent law is that one who “invents”

or “discovers” something should be rewarded for his/her work.

Under the Paris Convention, the inventor has the right to be named in the patent.
173
Contrary to the patent secured by Rylov, the Omelois were not mentioned as the inventors of

the mixture, nor were their contributions cited in the application. Rylov assumed authorship over

Huacaxin, disregarding its people who originally concocted it- the Omelois. 174

1. Newness or Novelty Requirement

The requirement of newness, as defined by U.S. patent law is that one may not patent an

invention if the invention is any of the following:

o ...known or used by others in this country, or patented or described in a

printed publication in this or a foreign country,...or

o ...described in a printed publication in this or a foreign country or in public use or

on sale in this country,...or

173
T. Cattier and M. Panizzon, hgal Perspectives on Traditional Knowledge: The Case f.r Intellectual Property

Protection, 7 Journal of International Economic Law, 2004, p. 371, at p. 387.

174
Compromis, ¶ 26

46
 o he has abandoned the invention, or

o the invention was first patented or caused to be patented...by the applicant...in a

foreign country prior to the date of the application in this country....175 This was not

complied by Ayasa becase the Omelois had already been using the mixture before it

was developed by Rylov. 176

2. . Non-Obviousness or Inventive Requirement

The non-obvious requirement is designed to advance the state of useful arts177 by limiting

the issuance of patents. The statutory requirement for non-obviousness states that:

A patent may not be obtained...if the differences between the subject

matter sought to be patented and the prior art are such that the subject

matter as a whole would have been obvious at the time the invention was

made to a person having ordinary skill in the art to which said subject

matter pertains. 178

The US Supreme Court held in Graham v. John Deere179 that four basic inquires should

be made when addressing non- obviousness.First, the scope and content of the prior art should be

175
35 U.S.C. § 102 (1994).
176
Compromis ¶ 9
177
The term art comes from Article I, Section 8 of the U.S. Constitution, “Science and Useful Arts,” and
refers to a particular subject matter in a field of study.
178
35 U.S.C. § 103 (1994).
179
383 U.S. 1 (1966)

47
 180
ascertained. Second, the level of ordinary skill in the particular field should be assessed.
181
Third, the difference between the prior art and the claims at issue is examined.182 Finally, a

determination is made as to whether these differences would have been obvious to a layperson in
183
the applicable field at the time the invention was made.

3. Usefulness or Utility Requirement

The third element assessed under an application for a patent requires that an invention

must be capable of achieving some minimal useful purpose.184 However, under international law

the usefulness requirement is more stringent and must be able to generate profits.185 Indigenous

tribe’s production of medicinal applications and religious ceremonies do not usually include

profitability. 186

180
Ibid.
181
Ibid.
182
Ibid.
183
Drahos, P. (ed.), 1999: Intellectual Property, Aldershot, Ashgate.

184
BURGE, supra note 9, at 43.

185
Scott Holwick, Developing Nations and the Agreement on

Trade-Related Aspects of Intellectual Property Rights, 1999 COLO. J. INT’L ENVTL. L. & POL’Y 49,
57 (2000).
186
Compromis, ¶9

48
 E. HOW INDIGENOUS PEOPLE’S CONTRIBUTIONS ARE RECONCILED WITH

INTELLECTUAL PROPERTY LAW

The Convention also recognizes the "knowledge, innovations and practices of indigenous

and local communities" and specifically "encourage[s] the equitable sharing of benefits arising

from the utilization of such knowledge, innovations and practices".187The CBD sanctions

bilateral agreements by making repeated reference to "mutually agreed terms" for access to

genetic materials188 subject to "prior informed consent" of the State189.

The concept of benefit sharing is appropriate in situations where exclusive property rights

are considered inappropriate. It is believed that the benefits accruing to communities enable them

to continue their lifestyle and thereby can help in preservation of TK.190

From a perspective of patent law, Traditional Knowledge refers to documented or

undocumented information of indigenous communities that is already in existence. A

documented traditional knowledge attains the character of prior art under patent law. Since such

information is available to public, a patent cannot be granted over it but at the same time, there is

187
Article 8(j) CBD

188
Article 15(4) id.

189
Article 15(5) id.

190
Carlos M Correa, “Traditional Knowledge and intellectual property” 6-7 (QUNO, Geneva,
2001).

49
no restraint in the use of such traditional knowledge for commercial purposes, as it is not

affecting the right of any individual or group.

Recognition by the UNESCO of the huacasera ritual by the Omeloi’s constitute a prior

art. In fact, both the purahuaca tree and the huacasera ritual are included in its List of Intangible

Cultural Heritage. 191

191
Compromis, ¶11

50
 PRAYER FOR RELIEF

The Confederation of Ramigian Nations respectfully requests this Court to adjudge and declare

that:

I.

Ramigo is not liable for the worsening of the outbreak;

II.

Ramigo did not violate environmental law;

III.

The use of the plant by Ayasa’s citizens is a violation of indigenous peoples’ rights; and

IV.

Ayasa has not rightfully acquired intellectual property rights over the plant.

51