Madam/Mr. President, your excellency, good morning. May it please the court.

My name is,
Florabelle Perez, 2nd counsel for the applicant. As counsel, I shall present one submission that the
harvesting of the Yak in Rakkab is a violation of Rakkab’s international obligations relating to
the protection of endangered species and the environment, including those under relevant
conventions, and that Rakkab is obligated to end Yak harvesting on its territory.
Unless this honorable court has any preliminary observations, I shall now proceed with my
submission.
For the applicant’s second submission, this agent would like to establish that the Respondent
violated the following international obligations: first, the obligation to prevent transboundary
harm; second, the obligation to observe international cooperation in protecting the environment;
third, the principle of sustainable development; fourth, the Convention on Migratory Species
(CMS); and fifth, the Convention on Biological Diversity (CBD).
On the applicant’s first point which is the violation of the obligation to prevent
transboundary harm, in the Trail Smelter case, the Court ruled that a State has the obligation to
protect other states from injurious acts committed within its jurisdiction. Transboundary harm is
an example of this injurious act. In order to establish that the Respondent is in violation of its
obligation to prevent transboundary harm, the following elements provided under the Articles on
Prevention of Transboundary Harm from Hazardous Activities must be shown: first, the harm
must result from human activity; second, the harm must be a physical consequence of the human
activity; third, physical effect crossing national boundaries must be present; and fourth, the harm
must cause a significant damage to the environment.
The first and second elements are shown by the alarming decline in the Yak population caused
by the aggressive harvesting by DORTA. This can be seen from paragraphs 23, 24, 25, and 27 of
the compromis.
- Paragraph 24 shows that for a period of 4 months alone, nearly 30,000 Yak were killed
which were then delivered to DORTA. This figure is still significant, considering that the
evolution of Yak is slow as stated in paragraph 27.
The third element is established by the fact that extreme decline in population of Yak, which is
considered a migratory species crossing boundaries of Aurok and Rakkab, disrupted the balance
between the Yak and the Aurokan people. This can be seen from paragraphs 27 and 43 of the
compromis. Thus, the physical consequence of the aggressive harvesting posted negative effect
on Applicant’s territory.
The fourth element is shown by damage to the Yak population and Aurokan way of life. In
Nayudu case, severe depletion and extinction of species was considered to constitute irreversible
damage to the environment. The study of the Yak Life Sciences Academy (YLSA) shows that if
the current decline rate of population continues, Yak will be extinct by 2040. This can be seen
from paragraphs 27 and 36 of the compromis.
Clearly, all the elements of the violation of the obligation to prevent transboundary harm are
satisfied.
This agent will now move to the applicant’s second point which is the violation of the
obligation of international cooperation.
According to the Nayudu case, international obligation to cooperate in protecting the
environment reflects customary international law. Notwithstanding the promise of Respondent’s
Prime Minister to monitor the issue and cooperate with the Applicant, the aggressive harvesting
of Yak by DORTA continued. The captive breeding measure promised by DORTA proved not to
be successful. This can be seen from paragraphs 26 and 31 of the compromise.
Clearly, Respondent failed to fulfill its obligation to cooperate with the Applicant in protecting
the Yak population and the environment.
This agent will now move to the applicant’s third point which is the violation of the
principle of sustainable development.
Brundtland Report defined sustainable development as practice that meets the needs of the
present without compromising the ability of future generations to meet their own needs.
According to the most highly qualified publicists, Boyle and Birnie, the concept of
sustainable development has been embodied in vast international conventions. Even ICJ
Judge Weeramantry in Gabcikovo-Nagymaros case said that the concept of sustainable
development is widely and generally recognized principle of international law.
In the Pulp Mills case, among the determining factors of sustainable development are: first, the
reasonable and equitable use of shared natural resources is; second, a balance between
commercial and environmental objectives; and, third, fulfillment of inter-generational equity.
The first and second factors were not fulfilled by the Respondent. The harvesting of Yak was not
reasonable and equitable because the aggressive harvesting of the Yak is the main contributor of
extinction of the species. The development in the field of medicine does not justify this
extinction. In fact, even the captive breeding program initiated by DORTA did not prove to be
successful as we can see from paragraph 26 of the compromis.
The third factor, or the inter-generational equity, was also not met. Considering that the Yak is
threatened by extinction, future generations of Aurokan will no longer benefit from the current
resources of Yak. The future generation will also no longer be able to continue the Aurokan
tradition and culture. This can be seen from paragraph 41 of the compromis.
Clearly, Rakkab failed to fulfill the principle of sustainable development.
This agent will now move to the applicant’s fourth point, which is the violation of CMS.
According to Article III, paragraph 5 of the CMS, States are obligated to prohibit the taking of
species included in Appendix I. Rakkab, notwithstanding the inclusion of Yak in Appendix I of
CMS, allowed the taking of Yak by promulgating Regulation 17-0300 which granted license to
DORTA for Yak harvesting. This can be seen from paragraphs 43, 44, and 46.
The prohibition on taking of species listed in Appendix I of the CMS admits exceptions. These
are: first, the taking must be for scientific purposes; second, taking is for propagation; third, the
taking is for traditional substance purposes; and third, the presence of extraordinary
circumstance. None of these exceptions are present which would warrant the taking of Yak
because the taking is no longer for scientific purposes but driven solely by business motives; the
taking is neither for propagation; the taking of Yak by DORTA is not done for the subsistence of
Aurokan tradition; and no extraordinary circumstance is present. This can be seen from
paragraphs 9, 14, 15, 21, and 44 of the compromis.
Since Rakkab allowed the taking of the Yak notwithstanding its inclusion in Appendix I of the
CMS and the absence of any of the exceptions, clearly, Rakkab is in violation of its obligations
under CMS.
This agent will now move to the applicant’s last point, which is the violation of CBD.
Under Article 7 paragraph d of the CBD, State parties are obliged to identify and monitor the
components of biological diversity for its conservation and sustainable use. Respondent failed to
fulfill its commitment to monitor the declining population of Yak as a component of biological
diversity. The Respondent even allowed the use of YakTrakker, which is supposed to monitor
the herds, but was used by hunters in hunting Yak. This can be seen from paragraphs 34 and 35
of the compromis.
Under Article 8 of the CBD, State parties must observe in-situ conservation. Paragraph b
requires development of areas which special measures are needed to conserve biological
diversity, paragraph j requires equitable sharing of the and paragraph m requires financial
provisions for in-situ conservation.
- Under Article 2 of the CBD, in-situ conservation means the conservation of ecosystems
and natural habitats and the maintenance and recovery of viable populations of species
in their natural surroundings.
The Court in Southern Bluefin Tuna case, provisional measures for conservation and
management of species are necessary where there is significant depletion of species.
Respondent’s violation of Article 8 of CBD is established by its failure to address the significant
decline in Yak population. Nothing was shown that Respondent took actions in addressing this
issue. In fact, they even granted further licenses for Yak harvesting. The Respondent also denied
the payment for Aurokan people’s rightful shares in the profits of DORTA from harvesting of
Yak.
Clearly, the Respondent failed to comply with its obligations under the CBD.
This agent submits that the Court should rule in favor of the applicant for the respondent’s
violation of its obligation to prevent transboundary harm, its obligation to observe international
cooperation, its obligation to observe sustainable development, its obligation under the CMS,
and its obligation under the CBD.
Unless this honorable court has any further need of my assistance, I shall now see the podium to
my next co-counsel for her submission.