JJUSTICE

USTICEDDIPAK MISHRA
IPAKM ISHRAIINTERNATIONAL
NTERNATIONALMMOOT
OOTCCOURT
OURTCCOMPETITION
OMPETITION,,2(11)
2(11)OF 2021
OF2021
(organised by Geeta Institute of Law, Panipat, Delhi NCR)

TEAM CODE: TC-15

IN THE INTERNATIONAL COURT OF JUSTICE

AT PEACE PALACE
THE HAGUE

QUESTIONS RELATING TO THE ACCOUNTABILITY FOR

CORONAVIRUS (COVID-19)
(UNDER ART. 65 AND ART. 66 OF THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE)

INTERNATIONAL HEALTH ORGANISATION AND ORS. …APPLICANTS

v.

COMMUNIST REPUBLIC OF MANDARIN …RESPONDENT

RESPECTFULLY SUBMITTED BEFORE THE HON’BLE JUDGES IN THE INTERNATIONAL

COURT OF JUSTICE

MEMORANDUM ON BEHALF OF RESPONDENT

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

TABLE OF CONTENTS
• LIST OF ABBREVIATIONS .......................................................................................................III
• INDEX OF AUTHORITIES .......................................................................................................... V
• QUESTIONS PRESENTED .......................................................................................................... X
• STATEMENT OF JURISDICTION .............................................................................................. X
• STATEMENT OF FACTS ........................................................................................................... XI
• SUMMARY OF ARGUMENTS................................................................................................. XII
• ARGUMENTS ADVANCED .........................................................................................................1
I. That the conduct of communist republic of mandarin in informing the international health
organization about the pandemic is not in violation of article 6 & 7 of international health regulations
2005 [“IHR”] .......................................................................................................................................1
A. That there was prompt reporting and cautious conduct on Mandarin’s part………………...…1
1. Mandarin has reported the requisite information to IHO on time .......................................1
2. Mandarin has exhibited cautious& cooperative conduct .....................................................2
B. Mandarin has not breached IHR regulations under Article 6 and 7............................................3
1. Mandarin has abided by obligation under Article 6 ............................................................3
2. Mandarin has abided by obligation under Article 7 ............................................................4
C. Mandarin is not liable under the Responsibility of states for Internationally Wrongful Acts,
2001 .................................................................................................................................................5
D. Mandarin is a sovereign state and therefore, has no legal accountability to other states or
international organisations ...............................................................................................................6
II. That Mandarin cannot be held responsible for spread of the novel coronavirus as it does not
fulfil the criteria of the definition of transboundary harm under Article 1 of the International Law
Commission’s Draft articles on Prevention of Transboundary Harm from Hazardous Activities, 2001
8
A. That Mandarin cannot be held responsible for spread of the novel coronavirus as it does not fulfil
the criteria of the definition of transboundary harm under Article 1 of the International Law
Commission’s Draft articles on Prevention of Transboundary Harm from Hazardous Activities, 2001
1. That the origin of coronavirus in the territory of Mandarin is not scientifically or factually
established with clear and convincing evidence ..........................................................................9
2. Human causation of coronavirus is not established .............................................................9
B. That the State of Mandarin complied with due diligence requirement, procedural obligations
and precautionary approach in the context of regulating wet markets and containment of the spread
of coronavirus within its territory as mandated by international law ............................................10
1. That appropriate procedural duties and regulatory measures for wet markets were in place
11
2. That Mandarin has fulfilled its precautionary obligations under Article 3, 8 and 9 of the
Draft Articles .............................................................................................................................12
3. Strict liability cannot be imputed to Mandarin ..................................................................14
C. That Mandarin cannot be held liable under “polluter pay” principle to pay compensation to
the applicant States for spread of coronavirus ...............................................................................15
• PRAYER....................................................................................................................................XIII

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS

& And

¶ Paragraph

Alb. Albania

Arb. Arbitral

Art. Article

ASEAN Association of Southeast Asian Nations

Cambridge L.J. Cambridge Law Journal

Chin Med J (ENGL) Chinese Medical Journal

Const. Constitution

Doc. Document

ed. Edition

Emerg Microbes Infect Emerging Microbes & Infections

et al and others

Eur. J. Int'l. L European Journal of International Law

Harv. Int'l. L. J Harvard International Law Journal

Hon’ble Honourable

ICJ International Court of Justice

Id. The same

IHO International Health Organization

IHR International Health Regulations

I.L.C International Law Commission \

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

Int’l International

Lancet The Lancet

L.R. Law Report

N Engl J Med New England Journal of Medicine

Neth. Y. B. Int'l. L. Netherlands Yearbook of International Law

No. Number

para Paragraph

P.C.I.J Permanent Court of International Justice

PM Post meridiem

Pol. Poland

Rep Report

Repb. Republic

Res. Resolution

U.K. United Kingdom

U.S.A. United States of America

U.N. United Nations

U.N.T.S. United Nations Treaty Series

UNODC United Nations Office on Drugs and Crime

v. Versus

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

INDEX OF AUTHORITIES

I.C.J. Cases and Arbitral Tribunal Decisions

1949 I.C.J. 4; Lac Lanoux (Fr. v. Spain), 12 R.I.A.A. 281 (1957) ........................................... 7
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep. 2,
p. 279, Case Concerning the Gabcikovo - Nagymaros Project: (Hung. v. Slovak.), 1997 I.C.J.
Rep 88, p.7 (September 25) ................................................................................................... 7
Asylum (Colom. v. Peru), Judgment, 1950 I.C.J. 266, at 277 (Nov. 20) ................................. 13
Case Concerning Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), I.C.J. Reports 1996, pg. 595 (July
11). ......................................................................................................................................... 5
Chorzow Factory Case (Germany v. Pol.) 1928 P.C.I.J. 47 (ser. A) N° 17 (Sept. 13) ............. 4
Corfu Channel Case (U.K. v. Albania); Assessment of Compensation, 15 XII 49, I.C.J. 6
Corfu Channel Case (U.K. v. Albania); Assessment of Compensation, 15 XII 49, I.C.J., (1949)
.............................................................................................................................................. 6
Corfu Channel, (U.K. v. Albania) 1949 I.C.J. 4, (Apr.9) ......................................................... 12
Eritrea-Ethiopia Claim Commission, (Eritria v. Ethiopia) Decision 7 of the ‘Guidance
Regarding Jus Ad Bellum Liability, pg. 7– 14 (2007) ........................................................ 5
Execution of German-Portuguese Arbritral Award (Portugal v. Germany), pg. 1031 (1928.17
GABCIKOVO – NAGYMAROS, supra at note 1; Corfu Channel (U.K. v. Alb.) .......................... 7
Gabčikovo-Nagymaros Project, (Hungary v. Slovakia), Advisory Opinion, (1977) I.C.J. Rep
7, pp. 116 .............................................................................................................................. 4
Island of Palmas case (U.S. v. Netherlands) 2 U.N. Rep. Int’l Arb. Awards 829 (Perm. Ct. Arb
1928)..................................................................................................................................... 6
MOX Plant Case, , ¶75; Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 457, at 362 (Dec.20)
(Weeranmantry J., dissenting ............................................................................................... 13
Pulp Mills in the River Uruguay (Arg. v. Uru.), 2010 I.C.J. (Apr. 20) .................................... 10
Trail Smelter Arbitral Decision (US v. Can.) 3 R.I.A.A. 1905 (1938/1941) ...........................

United Nation and Other Documents

Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, 2001, in REPORT OF THE I.L.C. IN ITS 53RD SESSION, (2001). ............................ 15
Convention on Biological Diversity (CBD), 31 ILM 818 (1992), art.3; Helsinki Rules on the
Uses of Waters of International Rivers, 2 IPE 5741, Art. X (1)(a); United Nations Convention
on the Law of the Sea (UNCLOS), 29 ILM 1261 (1982), art.194 ........................................ 7
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001, Report
of the International Law Commission on the Work of its Fifty-Third Session, 154, art. 1,
U.N. Doc. A/56/10 (2004) .................................................................................................... 8
DRAFT ARTICLES, supra note 8, at 154-155; see also, art.4, 7. ................................................. 10
G.A. Res. 2625(XXV), Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United
Nations (Oct. 24, 1970) ......................................................................................................... 6

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Guidelines for Applying The Precautionary Principle To Biodiversity Conservation And

Natural Resource Management, 67TH MEETING OF THE IUCN COUNCIL,
https://www.iucn.org/sites/dev/files/import/downloads/ln250507_ppguidelines.pdf. (2007).
..............................................................................................................................................12
I.L.C. DRAFT ARTICLES, supra, note 18, art.2 .......................................................................... 4
I.L.C., Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N.
Doc. A/56/10 (2001)............................................................................................................. 4
Marco Martuzzi and Joel A. Tickner (ed.), The Precautionary Principle: Protecting Public
Health, The Environment And The Future Of Our Children, WHO-EUROPEAN UNION,
https://www.euro.who.int/ data/assets/pdf_file/0003/91173/E83079.pdf (2004).............. 12
Report of the Director-General, 146th MEETING OF THE EXECUTIVE BOARD, WORLD HEALTH
ORGANIZATION [WHO], (Feb. 3, 2020), https://www.who.int/director-
general/speeches/detail/report-of-the-director-general-146th-meeting-of-the-executive-
board ..................................................................................................................................... 1
Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), WORLD
HEALTH ORGANIZATION [WHO], (Feb. 24, 2020), https://www.who.int/docs/default-
source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf....................... 4
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, U.N. Doc.
A/RES/56/83 (Jan. 28, 2002)................................................................................................ 4
S.C. Res. 687, ¶ 16 (Apr. 3, 1991) ........................................................................................... 5
SITUATION REPORT, Novel Coronavirus (2019-nCoV), - 1 21 JANUARY 2020, WORLD HEALTH
ORGANIZATION [WHO], (Jan. 20, 2020), https://www.who.int/docs/default-
source/coronaviruse/situation-reports/20200121-sitrep-1-2019-ncov.pdf ........................... 1
Stockholm Declaration on the Human Environment, UN Doc.A/CONF.48/14/ Rev.1 (1973)
(Stockholm Declaration), Principle 21; Rio Declaration on Environment and Development,
UN Doc. A/CONF.151/26 (vol. I), (1992) (Rio Declaration), Principle 2. .......................... 7
THAILAND: How a Strong Health System Fights a Pandemic, COVID-19: WHO’S ACTION IN
COUNTRIES, WORLD HEALTH ORGANIZATION [WHO], (Sept, 2020),
https://www.who.int/publications/m/item/thailand-how-a-strong-health-system-fights-a-
pandemic .............................................................................................................................. 3
Timeline of China releasing information on COVID-19 and advancing international
cooperation, NATIONAL HEALTH COMMISSION FOR THE PEOPLE’S REPUBLIC OF CHINA, (Apr.
6, 2020), http://en.nhc.gov.cn/2020-04/06/c_78861.htm ..................................................... 1
U.N. CHARTER art. 2(1); G.A. Res. 2625( XXV), Declaration on Principles of International
Law concerning Friendly Relations and Cooperation among States in accordance with the
Charter of the United Nations (Oct. 24, 1970) ..................................................................... 6
WHO Coronavirus (COVID-19) Dashboard, World Health Organisation [WHO],
https://covid19.who.int/ ........................................................................................................ 8
WHO Director-General's opening remarks at the media briefing on COVID-19 - 23 November
2020, World Health Organisation, https://www.who.int/director-
general/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-
covid-19---23november-2020. ............................................................................................. 8
Zheming Huan et al., Modelling the effects of Wuhan’s lockdown during COVID-19, China,
BULLETIN OF WHO, (Feb. 13, 2019), https://www.who.int/bulletin/volumes/98/7/20-
254045/en/ ............................................................................................................................ 1

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MEMORANDUM ON BEHALF OF RESPONDENT
JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

Books
A. CASSESE, INTERNATIONAL LAW 52 ( Columbia University 2005) ....................................... 6
A.M. HONORÉ, CAUSATION AND REMOTENESS OF DAMAGE, INTERNATIONAL ENCYCLOPEDIA OF
COMPARATIVE LAW, A. TUNC, ED. (TÜBINGEN, MOHR/THE HAGUE, MARTINUSNIJHOFF,
1983) ..................................................................................................................................... 5
ALEXANDRE KISS & DINAH SHELTON, GUIDE TO INTERNATIONAL ENVIRONMENTAL LAW 20
(Cambridge University Press, 2007) .................................................................................... 10
B. S. MARKESINIS, THE GERMAN LAW OF OBLIGATIONS: VOLUME II THE LAW OF TORTS: A
COMPARATIVE INTRODUCTION, 3RD ED. (Oxford, Clarendon Press, 1997), pp. 95–108 17
Charles Weiss, Expressing Scientific Uncertainty, Law, Probability and Risk, OXFORD
UNIVERSITY PRESS, (2003) 2, 25-56. .................................................................................... 12
D. MAZILU, DREPTUL INTERNAȚIONAL PUBLIC/PUBLIC INTERNATIONAL LAW 130 (Bucharest
Lumina Lex 2001) ................................................................................................................ 5
F.L. MORRISON AND M. WOLFRUM, ED., INTERNATIONAL, REGIONAL AND NATIONAL REGIONAL
ENVIRONMENTAL LAW 19 (Kluwer Law International, 2000); ............................................ 15
H. L. A. HART AND A. M. HONORÉ, CAUSATION IN THE LAW, (Oxford, Clarendon Press, 1985)
..............................................................................................................................................5
JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE
RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES 261 (Cambridge University
Press 2002). .......................................................................................................................... 6
MALCOLM N. SHAW, INTERNATIONAL LAW (Cambridge University Press, 2008) at 851 ........ 7
P. W. BIRNIE AND A. E. BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, 2nd ed., Oxford
University Press, 2002, p. 93-94). ........................................................................................ 15
PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 272 (Cambridge
University Press, 2003)......................................................................................................... 13
S RIPINSKY & K WILLIAMS, DAMAGES IN INTERNATIONAL INVESTMENT LAW, 137 (British
Institute of International and Comparative Law, 2008) ....................................................... 5
STEPHENS, INTERNATIONAL COURTS AND ENVIRONMENTAL PROTECTION 158 (Cambridge
University Press, 2009); BERGKAMP, LIABILITY AND ENVIRONMENT 165 (Kluwer Law, 2001)
.............................................................................................................................................. 14
ULRICH BEYERLIN & THILO MARAUHN, INTERNATIONAL ENVIRONMENTAL LAW 42 (Hart/Beck,
2011) ..................................................................................................................................... 10
XUE HANQUIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (Cambridge University
Press, 2003) at 314 ............................................................................................................... 7

Treaties and Conventions

Convention on Biological Diversity, 1992, art.3, 31 I.L.M. 818; Stockholm Declaration on the
Human Environment, Prin.21, U.N. Doc. A/CONF.48/14/Rev.1 (1973); Rio Declaration on
Environment and Development, Prin.2, U.N. Doc. A/CONF.151/26 (1992) ...................... 10
Convention on Environmental Impact Assessment in a Transboundary Context, 1989 U.N.T.S.
309, 30 I.L.M. 800 (1991) .................................................................................................... 13
Rio Declaration on the Human Environment, Principle 15, U.N. Doc. A/CONF.151/26 Vol. I
(1992) ................................................................................................................................... 12
RIO DECLARATION, supra note 32, Principle 19....................................................................... 13

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MEMORANDUM ON BEHALF OF RESPONDENT

JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

United Nations Framework Convention on Climate Change: Resolution / Adopted by the

General Assembly, A/RES/48/189, (1994) .......................................................................... 12

Journal Articles
A. ALONSO AGUIRRE ET AL., Illicit Wildlife Trade, Wet Markets, and COVID‐19: Preventing
Future Pandemics, WORLD MED HEALTH POLICY (2020). ................................................... 11
Allott, State Responsibility and the Unmaking of International Law, 29 HARV.INT'L.L.J. 1
(1988) ................................................................................................................................... 4
Bodansky & Crook, Introduction and Overview, 96 AM. J. INT'L L. 773 (2002) .................... 4
Combacau & Alland, "Primary" and "Secondary" .................................................................. 4
Crawford, Revising the Draft Articles on State Responsibility, 10 EUR.J.INT'L.L. 435 (1999)
..............................................................................................................................................4
Jana Maftei, Sovereignty in International Law, 11 ACTA UNIV. DANUBIUS, (2015),
http://journals.univ-danubius.ro/index.php/juridica/article/view/2798/2585 ....................... 6
John Kelson, State Responsibility and Abnormally Dangerous Activities, 13 HARV. INT'L. L.J.
197, 200 (1972) .................................................................................................................... 14
Magraw, The International Law Commission's Study of International Liability for Non-
prohibited Acts as It Relates to Developing States, 61 WASH. L. REV. 1041 (1986) ........... 14
Robinson, Problems of Definition and Scope, LAW, INSTITUTIONS AND THE GLOBAL
ENVIRONMENT, 48-49 (1972). .............................................................................................. 14
Rules in the Law of State Responsibility: Categorizing International Obligations, 16
NETH.Y.B.INT'L.L. 81 (1985) ................................................................................................ 4
Sridhar V Basavaraju et al., Serologic Testing of US Blood Donations to Identify Severe Acute
Respiratory Syndrome Coronavirus 2 (SARS-CoV-2)–Reactive Antibodies: December 2019–
January 2020, CLINICAL INFECTIOUS DISEASES, U.S. CENTRE FOR DISEASE CONTROL AND
PREVENTION, 2020, https://doi.org/10.1093/cid/ciaa1785.................................................... 9
Talha Burki, The Origin of SARS-CoV-2, 20 THE LANCET, 1018,
https://doi.org/10.1016/S1473-3099(20)30641-1. ................................................................ 9

News Reports
China achieves notable results in blocking COVID-19 human-to-human transmission: China-
WHO expert team, XINHUANET, (Apr. 20, 2021), http://www.xinhuanet.com/english/2020-
02/25/c_138814701.htm ....................................................................................................... 2
China's legislature adopts decision on banning illegal trade, consumption of wildlife, XINHUA,
(Feb. 24, 2021, 8:34 P.M.), http://www.xinhuanet.com/english/2020-
02/24/c_138814328.htm ....................................................................................................... 11
Fighting COVOD-19 China in Action, THE STATE COUNCIL INFORMATION OFFICE OF THE
PEOPLE’S REPUBLIC OF CHINA, http://www.xinhuanet.com/english/2020-
06/07/c_139120424.htm (2020). .......................................................................................... 13
Full text: Fighting Covid-19, China in Action, XINHUA, (Apr. 12, 2020),
http://www.xinhuanet.com/english/2020-06/07/c_139120424.htm ..................................... 1
Top legislature to inspect enforcement of wildlife protection law, XINHUA, (May 30, 2020, 7:22
P.M.), http://www.xinhuanet.com/english/2020-05/30/c_139101031.htm .......................... 11

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MEMORANDUM ON BEHALF OF RESPONDENT

JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

Wang Chen & Jiang Yifan, The Legal Proposals Shaping the Future of Wildlife in China,
CHINA DIALOGUE (Apr. 3, 2020), https://perma.cc/BHT6-QT7V ........................................ 11
WHO Director-General's statement on IHR Emergency Committee on Novel Coronavirus
(2019-nCoV), WORLD HEALTH ORGANIZATION [WHO], (Jan. 30, 2020),
https://www.who.int/director-general/speeches/detail/who-director-general-s-statement-on-
ihr-emergency-committee-on-novel-coronavirus-(2019-nCoV) .......................................... 3
WHO Statement regarding cluster of pneumonia cases in Wuhan, China, WORLD HEALTH
ORGANIZATION [WHO], (Jan. 9, 2020), https://www.who.int/china/news/detail/09-01-2020-
who-statement-regarding-cluster-of-pneumonia-cases-in-wuhan-china .............................. 3
WHO Timeline - COVID-19, WORLD HEALTH ORGANIZATION [WHO], (Apr. 27, 1019),
https://www.who.int/news/item/27-04-2020-who-timeline---covid-19 ............................... 1

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MEMORANDUM ON BEHALF OF RESPONDENT

JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

QUESTIONS PRESENTED

QUESTION 1

Whether Communist Republic of Mandarin is liable for violation of Articles 6 and 7 of

International Health Regulations?

QUESTION 2

Whether Republic of Mandarin is liable under ‘transboundary harm’ principle because

of its economic policies and laws regulating wet markets in Mandarin?

STATEMENT OF JURISDICTION

The Republic of Mandarin humbly submits to the jurisdiction of International Court of Justice

[hereinafter “ICJ”] pursuant to Article 65(1) of the Statute of the Court which states that,

“The Court may give an advisory opinion on any legal question at the request of whatever

body may be authorized by or in accordance with the Charter of the United Nations to make

such a request.”

In accordance with Article 66 of the ICJ statute, the Court has invited all interested State parties

entitled to appear before the Court to submit memorials through regional intergovernmental

organizations as an efficient way to represent the multiplicity of State interests in the

proceedings. Therefore, the Republic of Mandarin submits this memorial in answer to the

questions presented.

The Respondent requests this Hon’ble Court to issue a decision in accordance with the rules

and principles of international law.

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 JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

STATEMENT OF FACTS

BACKGROUND
COVID-19 is an infectious respiratory disease caused by a newly discovered form of virus.
The first case of COVID-19 was identified in China. COVID-19 has now spread across more
than 200 countries affecting more than 1,400,000 people and killing thousands.

TIMELINE OF THE KEY EVENTS

Date Events
31st December Mandarin reports the outbreak to the International Health Organization [hereinafter,
2019 “IHO”]. Public Notice by Wuhan authorities describes a new flu outbreak with 27
cases, linked to the Huanan Seafood Wholesale Market. No evidence of human-to-
human transmission as of yet as reported by Mandarin’s state-run news agency.
10th January Shanghai laboratory completes genome sequencing of the COVID-19 virus; a report of
2020 this is passed to IHO.
14th January IHO epidemiologist says that COVID-19 shows ‘limited’ human-to-human
2020 transmission.
IHO then says this is a ‘misunderstanding’ and issues a tweet saying that there is no
evidence of human-to-human transmission, citing Chinese health officials.
25th January Lockdown is imposed in the Hebei Province.
29-30 January Supreme Court rebukes Wuhan police for suppressing “rumours” about the outbreak.
11 March IHO declares a Global Pandemic.

ABOUT THE DISPUTE

The International Health Organization, along with other countries has alleged Communist
Republic of Mandarin to be liable for the breach of International Health Regulations 2005. It
has alleged the commission of an Internationally Wrongful Act by Mandarin and violation
of ‘transboundary harm’ principle because of its economic policies and laws regulating wet
markets in Mandarin. IHO and other countries present a different set of facts and hence, have
agreed to submit this dispute to ICJ.

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

SUMMARY OF ARGUMENTS

1. THAT THE CONDUCT OF COMMUNIST REPUBLIC OF MANDARIN IN INFORMING THE

INTERNATIONAL HEALTH ORGANIZATION ABOUT THE PANDEMIC IS NOT IN

VIOLATION OF ARTICLE 6 & 7 OF INTERNATIONAL HEALTH REGULATIONS 2005

It is humbly submitted before the Hon’ble Court that Mandarin has informed IHO on time
and maintained a cautious conduct since the beginning of the pandemic. It has not violated
Article 6 and 7 of International Health Regulations 2005, and is therefore, not responsible
for an internationally wrongful act. The essentials required to establish responsibility for
an Internationally Wrongful Act remain unfulfilled as [A] there is no wrongful conduct by
Mandarin authorities to make it liable under International law; and [B] no international
obligation of the State has been breached. Therefore, the requirement for reparation under
the Act is obliterated. Further, there is no existence of a “causal link" between the alleged
breach of an international obligation and the damage suffered by the injured States.
Moreover, Mandarin is a sovereign state and therefore not legally accountable to any state
or international organisation and has the authority to freely determine and apply laws and
policies governing its people and territory.

2. THAT THE REPUBLIC OF MANDARIN IS NOT RESPONSIBLE UNDER TRANSBOUNDARY

HARM PRINCIPLE BECAUSE OF ITS ECONOMIC POLICIES AND LAWS RELATING TO

WET MARKETS IN MANDARIN.

It is humbly submitted before the Hon’ble Court that Mandarin cannot be held responsible
under ‘Transboundary Harm’ principle as [A] the origin of coronavirus in the territory of
Mandarin is not scientifically or factually established with clear and convincing evidence; and
[B] human causation of coronavirus is not established. Further, Mandarin has complied with
due diligence requirement, procedural obligations and precautionary approach in the context
of regulating wet markets and containment of the spread of coronavirus within its territory as
mandated by international law by ensuring appropriate procedural duties and regulatory
measures for wet markets & fulfilling its precautionary obligations under Article 3, 8 and 9 of
the Draft Articles. Moreover, Mandarin cannot be held liable under “polluter pay” principle to
pay compensation to the applicant States for spread of coronavirus since Mandarin opted a pro-
active approach of Mandarin administration & allegation of negligence cannot be accepted
beyond reasonable doubt.

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

ARGUMENTS ADVANCED

I. THAT THE CONDUCT OF COMMUNIST REPUBLIC OF MANDARIN IN INFORMING

THE INTERNATIONAL HEALTH ORGANIZATION ABOUT THE PANDEMIC IS NOT IN
VIOLATION OF ARTICLE 6 & 7 OF INTERNATIONAL HEALTH REGULATIONS 2005
[“IHR”]
It is humbly submitted before the Hon’ble Court that the Communist Republic of Mandarin
[hereinafter, “Mandarin”] by upholding the vision of building a community with a shared
future for humanity, has timely released information on COVID-19 since the onset of the
epidemic in an ‘open, transparent and responsible manner’, unreservedly sharing with the IHO
and the international community its experience in epidemic response and medical treatment,
and strengthening cooperation on scientific research. We have also provided assistance to all
the countries to the best of our ability.1
Therefore, in the present case, it is submitted that Mandarin (A) has not violated International
Health Regulations 2005[hereinafter, “IHR”]; (B) is not responsible for an internationally
wrongful act and (C)as a sovereign state has no legal accountability to other states or
international organizations.
A. That there was prompt reporting and cautious conduct on Mandarin’s part
It is humbly submitted to the hon’ble court that Mandarin has abided by the IHR and has not
violated Article 6 & 7 as has been alleged. Conversely, through prompt reporting and cautious
conduct, Mandarin has fulfilled its international obligations and bought the world time to deal
with the pandemic.
1. Mandarin has reported the requisite information to IHO on time
In late December, ‘Wuhan Center for Disease Control and Prevention’ (CDC) in central
Mandarin's Hubei Province detected cases of pneumonia of unknown cause. On December 30,
2019, the same was notified to the country’s medical institutions2 and further on 31st December
2019, the IHO Mandarin Country Office was informed of cases of pneumonia unknown
etiology (unknown cause) detected in Wuhan City3 and an expert team sent to Wuhan to

1
Full text: Fighting Covid-19, China in Action, XINHUA, (Apr. 12, 2020),
http://www.xinhuanet.com/english/2020-06/07/c_139120424.htm.
2
Id.
3
SITUATION REPORT, Novel Coronavirus (2019-nCoV), - 1 21 JANUARY 2020, WORLD HEALTH
ORGANIZATION [WHO], (Jan. 20, 2020), https://www.who.int/docs/default-source/coronaviruse/situation-
reports/20200121-sitrep-1-2019-ncov.pdf.

1
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scrutinise the scenario.4 On January 2, Mandarin CDC received the first batch of samples of
four patients from Hubei and began pathogen identification.5From January 3, Mandarin had
been regularly informing the IHO, and other foreign countries concerned, about this outbreak.6
On January 9, an expert team from the National Health Commission (NHC) made public the
existence of the pathogen, saying a new type of coronavirus was initially identified as the cause
of the viral pneumonia in Wuhan. On the same day, Mandarin informed the IHO about the
epidemic, sharing with it the initial progress in determining the cause of the viral pneumonia
in Wuhan. On January 11, Mandarin scientists shared the genetic sequence of the virus
internationally, at an unprecedented speed.
Therefore, from the above facts, it is prima facie evident that Mandarin has reported to IHO on
time and has not breached its duty in any way.
2. Mandarin has exhibited cautious& cooperative conduct
It is humbly submitted before the Hon’ble Court that from January 23 to April 8, the city of
Wuhan had been locked down for 76 days to contain the spread of COVID-197. It is widely
believed and highly probable that this quarantine has slowed the spread of the virus to the rest
of the world by at least two or three weeks at the enormous sacrifice of Mandarin’s own
economy. For this reason, Tedros Adhanom Ghebreyesus, IHO Director General, stated that,
“[Mandarin’s] actions actually helped prevent the spread of coronavirus to other countries,”8
and that we have “bought the world time"9for containing the spread of the virus.
Starting Feb. 16, the Mandarin-WHO joint expert team, which consists of 25 experts from
Mandarin, Germany, Japan, Republic of Korea (ROK), Nigeria, Russia, Singapore, the United
States and WHO, conducted a nine-day field visit in Mandarin, inspecting cities including
Beijing, Chengdu, Guangzhou and Wuhan.10On Feb. 24, the Mandarin-WHO joint expert team
held a press conference in Beijing, at which the team members said Mandarin's unprecedented
public health responses to the COVID-19 outbreak have yielded notable results in slowing the

5
Id.
6
WHO Timeline - COVID-19, WORLD HEALTH ORGANIZATION [WHO], (Apr. 27, 1019),
https://www.who.int/news/item/27-04-2020-who-timeline---covid-19.
7
Zheming Huan et al., Modelling the effects of Wuhan’s lockdown during COVID-19, China, BULLETIN OF
WHO, (Feb. 13, 2019), https://www.who.int/bulletin/volumes/98/7/20-254045/en/.
8
Report of the Director-General, 146th MEETING OF THE EXECUTIVE BOARD, WORLD HEALTH ORGANIZATION
[WHO], (Feb. 3, 2020), https://www.who.int/director-general/speeches/detail/report-of-the-director-general-
146th-meeting-of-the-executive-board.
9
Id.
10
XINHUA, supra note 1.

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spread of the epidemic and blocking human-to-human transmission of the virus, preventing or
at least delaying hundreds of thousands of cases.11
Mandarin has timely shared with more than 100 countries and over 10 international and
regional organizations the whole gene sequence, primers and probes of the coronavirus,
diagnosis and treatment guidelines and other technical documents.
Therefore, the conduct of Mandarin has been extremely cautious and even laudatory 12 with
respect to its international duties and obligations.
B. Mandarin has not breached IHR regulations under Article 6 and 7
It is humbly submitted before the Hon’ble Court that Mandarin has not breached IHR
regulations under Article 6 and Article 7. This has been established in the following manner.
1. Mandarin has abided by obligation under Article 6
Article 6, paragraph 1 of the IHR stipulates each state party to notify IHO….by way of the
National IHR Focal Point, and within 24 hours of assessment of public health information, of
all events which may constitute a public health emergency of international concern within its
territory in accordance with the decision instrument, as well as any health measure
implemented in response to those events.
It is humbly submitted to the Hon’ble Court that Mandarin has shown strict adherence to the
provisions of IHR, where Article 4 requires that each member designate a National IHR Focal
Point and also “the authorities responsible” for the “implementation of health measures under
these regulations”. Mandarin government has declared that the IHR apply to the entire territory
of the Communist Republic of Mandarin, wherein the ‘Ministry of Health’ is designated as
Mandarin's National Focal Point, pursuant to Paragraph 1 of Article 4 of the IHR.
Furthermore, the facts make it evidently clear that Mandarin promptly notified IHO of all the
events occurring in its territory, and kept it updated as under Article 6 of the IHR.
2. Mandarin has abided by obligation under Article 7
Article 7 of the IHR states that if a State Party has evidence of an unexpected or unusual public
health event within its territory, irrespective of origin or source, which may constitute a public
health emergency of international concern, it shall provide to IHO all relevant public health
information. In such a case, the provisions of Article 6 shall apply in full. The data presented

11
China achieves notable results in blocking COVID-19 human-to-human transmission: China-WHO expert
team, XINHUANET, (Apr. 20, 2021), http://www.xinhuanet.com/english/2020-02/25/c_138814701.htm.
12
REPORT, supra note 8.

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above is cognizant to the fact that Mandarin acted in full obedience to such provisions and has
provided timely, accurate and sufficiently detailed information about Covid-19available for
public health. Therefore, Mandarin has not violated Article 7 of the IHR.
Furthermore, IHO Director-General Tedros Adhanom Ghebreyesus on Jan. 24 thanked on
social media the Mandarin government for its cooperation and transparency, saying that the
Mandarin government has been successful in isolating and sequencing the virus very quickly
and has shared that genetic sequence with the WHO and the international community.13
Henceforth, it is humbly submitted that COVID-19 is a new virus with many details remaining
unknown, it takes time to truly understand the virus and be able to contain the spread of the
disease. Therefore, when the first case of “a mysterious pneumonia” was discovered in Wuhan
in December 2019, there was not enough knowledge and information to piece together an
accurate picture of a yet-to-be-identified new virus, let alone to predict its risk of quick
spreading and the later global pandemic. After the first case was identified on 31 December
2019, Wuhan airport started to screen passengers from 3 Jan 2020, IHO issued travel restriction
instruction on 5 Jan,14 and COVID-19 was only identified on 7 Jan.15 On 8 Jan, the first
suspected case was reported in Thailand.16 It shows that the Mandarin government responded
quickly and the virus spread out of Mandarin before enough information was collected to
understand it. After the seriousness of COVID-19 was confirmed, Mandarin has adopted the
most restrictive measures, including lockdown the City of Wuhan17 and put the whole country
under full or partial quarantine to contain the disease, which was a critical move to slow the
spread of the virus to the rest of the world by two or three weeks.
Therefore, Mandarin has not breached any obligation in any way.

13
WHO Director-General's statement on IHR Emergency Committee on Novel Coronavirus (2019-nCoV),
WORLD HEALTH ORGANIZATION [WHO], (Jan. 30, 2020), https://www.who.int/director-
general/speeches/detail/who-director-general-s-statement-on-ihr-emergency-committee-on-novel-coronavirus-
(2019-nCoV).
14
WHO Statement regarding cluster of pneumonia cases in Wuhan, China, WORLD HEALTH ORGANIZATION
[WHO], (Jan. 9, 2020), https://www.who.int/china/news/detail/09-01-2020-who-statement-regarding-cluster-of-
pneumonia-cases-in-wuhan-china.
15
SITUATION REPORT, supra note 3.
16
THAILAND: How a Strong Health System Fights a Pandemic, COVID-19: WHO’S ACTION IN COUNTRIES,
WORLD HEALTH ORGANIZATION [WHO], (Sept, 2020), https://www.who.int/publications/m/item/thailand-how-
a-strong-health-system-fights-a-pandemic.
17
Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19), WORLD HEALTH
ORGANIZATION [WHO], (Feb. 24, 2020), https://www.who.int/docs/default-source/coronaviruse/who-china-
joint-mission-on-covid-19-final-report.pdf.

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C. Mandarin is not liable under the Responsibility of states for Internationally Wrongful
Acts, 200118
International Law Commission’s (‘ILC’ hereinafter) Draft Articles on Responsibility of
States for Internationally Wrongful Acts, the portions of which the Hon’ble Court has
determined to be customary international law,19Article 2 stipulates the fulfilment of the
following 2 essentials to make the state liable under this:
i. That the conduct is attributable to the State under international law; and
ii.
it constitutes a breach of an international obligation of the State.20
It is humbly submitted to the hon’ble court that since there has been no violation of Article 6
& 7 of the IHR, therefore, no international obligation has been breached and the essential
elements to constitute an internationally wrongful act stand unfulfilled.
Further, the state committing an internationally wrongful act has an obligation to make full
reparation in an adequate form21,for the injury caused by the Internationally Wrongful
Act22.However, there needs to be a “causal link" between the alleged breach of an international
obligation and the damage suffered by the injured States, i.e., the fulfilment of a “sufficiently
direct and certain causal nexus test” as established by the ICJ in the Bosnian Genocide Case
(2007)23. Causation must be direct, foreseeable, and proximate.24However, there is no evidence
to demonstrate that Mandarin breached the IHR or any international obligation so far.
Moreover, there is no direct causal link to establish the losses or the injuries suffered by States
attributable directly to the breach of such obligations by the Mandarin government or any of
its organs acting in official capacity.25

18
I.L.C., Articles on the Responsibility of States for Internationally Wrongful Acts, GA U.N. Doc. A/56/10
(2001).
19
Gabčikovo-Nagymaros Project, (Hungary v. Slovakia), Advisory Opinion, (1977) I.C.J. Rep 7, pp. 116, ¶ 35;
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, U.N. Doc. A/RES/56/83 (Jan. 28,
2002).
20
I.L.C. DRAFT ARTICLES, supra, note 18, art.2; Bodansky & Crook, Introduction and Overview, 96 AM.
J. INT'L L. 773 (2002); Crawford, Revising the Draft Articles on State Responsibility, 10 EUR.J.INT'L.L. 435
(1999); Allott, State Responsibility and the Unmaking of International Law, 29 HARV.INT'L.L.J. 1 (1988);
Combacau & Alland, "Primary" and "Secondary" Rules in the Law of State Responsibility: Categorizing
International Obligations, 16 NETH.Y.B.INT'L.L. 81 (1985).
21
Chorzow Factory Case (Germany v. Pol.) 1928 P.C.I.J. 47 (ser. A) N° 17 (Sept. 13).
22
I.L.C. DRAFT ARTICLES, supra note 18, art. 34.
23
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia-Herzegovina v. Yugoslavia), I.C.J. Reports 1996, pg. 595 (July 11).
24
S RIPINSKY & K WILLIAMS, DAMAGES IN INTERNATIONAL INVESTMENT LAW, 137 (British Institute of
International and Comparative Law, 2008) ; Eritrea-Ethiopia Claim Commission, (Eritria v. Ethiopia) Decision
7 of the ‘Guidance Regarding Jus Ad Bellum Liability, pg. 7– 14 (2007).
25
I.L.C. DRAFT ARTICLES, supra note 18, art. 4.

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Furthermore, causality in fact is a necessary but not a sufficient condition for reparation. There
is a further element, associated with the exclusion of injury that is too “remote” or
“consequential” to be the subject of reparation. Moreover, the criterion of “directness”, 26 in
“foreseeability”27 or “proximity”28may also be used. Further, whether State organs deliberately
caused the harm in question, or whether the harm caused was within the ambit of the rule which
was breached, having regard to the purpose of that rule is also to be determined before fixing
the responsibility for reparation.
Therefore, since the damage or any injury is not directly attributable to Mandarin, nor is
foreseeable or proximate, therefore, Mandarin is not responsible for any reparation resulting in
response to the same. Conversely, the efforts made by the Mandarin government has effectively
postponed the international spread of the virus.
D. Mandarin is a sovereign state and therefore, has no legal accountability to other states
or international organisations
It is humbly submitted before the hon’ble court that “the political and legal basis of the
international personality of the state is its sovereignty.”29State Sovereignty is the quality of
state power to be supreme in relation to any other existing social power within its territorial
limits and independence compared to the power of any state or international body, the quality
being expressed in the State's right to determine freely, without any interference from the
outside, the purpose of his activities internally and externally,....respecting the sovereignty of
other states and international law provisions.30Therefore, Madarin is not legally accountable to
any state or international organisation and has the authority to freely determine and apply laws
and policies governing its people and territory.31 Mandarin exercises its sovereignty as an

26
S.C. Res. 687, ¶ 16 (Apr. 3, 1991).
27
Execution of German-Portuguese Arbritral Award (Portugal v. Germany), pg. 1031 (1928).
28
see, H. L. A. HART AND A. M. HONORÉ, CAUSATION IN THE LAW, (Oxford, Clarendon Press, 1985); A. M.
HONORÉ, CAUSATION AND REMOTENESS OF DAMAGE, INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW,
A. TUNC, ED. (TÜBINGEN, MOHR/THE HAGUE, MARTINUSNIJHOFF, 1983); B. S. MARKESINIS, THE GERMAN LAW
OF OBLIGATIONS: VOLUME II THE LAW OF TORTS: A COMPARATIVE INTRODUCTION, 3RD ED. (Oxford, Clarendon
Press, 1997), pp. 95–108, WITH MANY REFERENCES TO THE LITERATURE.
29
D. MAZILU, DREPTUL INTERNAȚIONAL PUBLIC/PUBLIC INTERNATIONAL LAW 130 (Bucharest Lumina Lex
2001).
30
Jana Maftei, Sovereignty in International Law, 11 ACTA UNIV. DANUBIUS, (2015), http://journals.univ-
danubius.ro/index.php/juridica/article/view/2798/2585.
31
U.N. CHARTER art. 2(1); G.A. Res. 2625( XXV), Declaration on Principles of International Law concerning
Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (Oct. 24,
1970); Corfu Channel Case (U.K. v. Albania); Assessment of Compensation, 15 XII 49, I.C.J., (1949); Island of
Palmas case (U.S. v. Netherlands) 2 U.N. Rep. Int’l Arb. Awards 829 (Perm. Ct. Arb 1928);)A. CASSESE,
INTERNATIONAL LAW 52 ( Columbia University 2005).

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absolute, perpetual, indivisible, inalienable and imprescriptible32 powerto take all

administrative decisions within its own territory with utmost ‘internal supremacy’33and
‘external independence’34 .
The collaboration between states is achieved according to principles where respecting the state
sovereignty occupies an important place.35No states or group of states has the right to intervene,
‘directly or indirectly’, for any reason whatsoever, in the internal or external affairs of any other
state.36 The handling of the pandemic in its own territory constitutes the ‘internal affairs’ of
Mandarin and no state or organization can interfere with the same.
A State is responsible only for acts of its organs or of persons acting under its control and
authorization.37 It is impossible for a state to control all events on its territory;38 thus, territorial
sovereignty per se cannot entail responsibility.39
Therefore, the handling of the pandemic by Mandarin in its own territory cannot be questioned
in the ICJ as it is a part of Mandarin’s sovereign function and the mere origin of the virus in
Mandarin should not entail responsibility on country’s part.
Conclusively, it is humbly submitted to the Hon’ble court that Mandarin has not breached its
international obligations under the International Health Regulations 2005, and is therefore, not
liable for any internationally wrongful act. Mandarin is not liable for any reparations to the
affected states as no harm or injury has occurred as a direct consequence of its actions.
Conversely, Mandarin imposed a lockdown at the cost of its economy to contain the spread of
the disease in the initial months of the pandemic and has outdone itself in providing aid to the
countries affected.
II. THAT THE REPUBLIC OF MANDARIN IS NOT RESPONSIBLE UNDER TRANSBOUNDARY HARM
PRINCIPLE BECAUSE OF ITS ECONOMIC POLICIES AND LAWS RELATING TO WET MARKETS

IN MANDARIN.

32
JANA, supra note 30
33
MAZILU, supra note 29.
34
Id.
35
JANA, supra note 30.
36
G.A. Res. 2625(XXV), Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States in accordance with the Charter of the United Nations (Oct. 24, 1970).
37
I.L.C. DRAFT ARTICLES, supra note 18, art. 8.
38
JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY:
INTRODUCTION, TEXT AND COMMENTARIES 261 (Cambridge University Press 2002).
39
Corfu Channel Case (U.K. v. Albania); Assessment of Compensation, 15 XII 49, I.C.J., (1949).

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The obligation to prevent transboundary harm is a well-established customary norm40 in

international law expressed in declarations41 and crystallized in conventions.42 It imposes a
basic obligation upon states not to act as to injure other states. 43 Mandarin is bound by this
obligation under treaty44 and custom.45 However, harmful consequences to other States would
not give rise to international liability unless they resulted from a failure on the part of the acting
State to observe its international obligations.46
A. That Mandarin cannot be held responsible for spread of the novel coronavirus as
it does not fulfil the criteria of the definition of transboundary harm under Article
1 of the International Law Commission’s Draft articles on Prevention of
Transboundary Harm from Hazardous Activities, 2001
It is humbly submitted before the Hon’ble Court that the ILC’s Draft Articles deal with
activities that fulfill four criteria – (a) they are human activities not prohibited by international
law; (b) they are planned or carried out in the jurisdiction of one State; (c) there is a risk of the
activities causing significant transboundary harm; and (d) significant transboundary harm is a
‘physical consequence’ of these activities.47 Territory is a conclusive evidence of jurisdiction
of the State and human causation is a necessary criteria for establishing transboundary harm,
both of which are not satisfied in the present case against the State of Mandarin.
1. That the origin of coronavirus in the territory of Mandarin is not scientifically or
factually established with clear and convincing evidence
For the purposes of the Draft Articles, territorial jurisdiction is the dominant criterion.
Consequently, when an activity covered by the present articles occurs within the territory of a

40
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep. 2, p. 279, Case
Concerning the Gabcikovo - Nagymaros Project: (Hung. v. Slovak.), 1997 I.C.J. Rep 88, p.7 (September 25).
41
Stockholm Declaration on the Human Environment, UN Doc.A/CONF.48/14/ Rev.1 (1973) (Stockholm
Declaration), Principle 21; Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol.
I), (1992) (Rio Declaration), Principle 2.
42
Convention on Biological Diversity (CBD), 31 ILM 818 (1992), art.3; Helsinki Rules on the Uses of Waters
of International Rivers, 2 IPE 5741, Art. X (1)(a); United Nations Convention on the Law of the Sea
(UNCLOS), 29 ILM 1261 (1982), art.194.
43
MALCOLM N. SHAW, INTERNATIONAL LAW (Cambridge University Press, 2008) at 851.
44
CBD, supra note 3, art.3.
45
Trail Smelter Arbitral Decision (US v. Can.) 3 R.I.A.A. 1905 (1938/1941); GABCIKOVO – NAGYMAROS, supra
at note 1; Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4; Lac Lanoux (Fr. v. Spain), 12 R.I.A.A. 281 (1957).
46
XUE HANQUIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (Cambridge University Press, 2003) at
314.
47
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, 2001, Report of the
International Law Commission on the Work of its Fifty-Third Session, 154, art. 1, U.N. Doc. A/56/10 (2004).

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State, that State must comply with the obligations of prevention. “Territory” is, therefore, taken
as conclusive evidence of jurisdiction.48
That though the first case of the novel coronavirus was detected in Mandarin before it spread
to more than 192 countries49 as of April 2021, it does not imply that the origin of the novel
coronavirus took place within the territory of Mandarin. Various studies in several countries
and by reputed scientific think tanks have established different reasons for the origins of the
coronavirus, including separate outbreaks in different countries as stated by the IHO in a press
statement on November 23rd, 2020.50 The possibility origin of the coronavirus in the United
States of America cannot be ignored. US Centre for Disease Control and Prevention (CDC)
has suggested Americans may have first been infected in mid-December as antibodies were
found in blood samples in US States. CDC report found COVID-19 antibodies in blood samples
as early as Dec 13, 2019, before Wuhan reported its first case.51
In such a case of the origin of the novel coronavirus in some other State, the State of Mandarin
is not the creator of the transboundary harm but itself a victim of the negligence of other States.
Hence, until the origin of coronavirus is not established, the same cannot be solely or jointly
attributed to the State of Mandarin.
2. Human causation of coronavirus is not established
It is humbly submitted that the origin of novel coronavirus was a human conduct specifically
in the wet markets of Mandarin is not scientifically or factually established. Further, that the
novel coronavirus originated in a laboratory have itself been denied by the IHO that considered
such a possibility as “extremely unlikely” and recommended no further study into this
possibility. There have been numerous studies by credible scientific think tanks and research
bodies that suggest natural origins of the virus.52
It is further submitted that the argument that human activities in the wet markets of Mandarin
were solely responsible for the novel coronavirus cannot be admitted as such activities take

48
Id., art 1, at 150.
49
WHO Coronavirus (COVID-19) Dashboard, World Health Organisation [WHO], https://covid19.who.int/.
50
WHO Director-General's opening remarks at the media briefing on COVID-19 - 23 November 2020, World
Health Organisation, https://www.who.int/director-general/speeches/detail/who-director-general-s-opening-
remarks-at-the-media-briefing-on-covid-19---23november-2020.
51
Sridhar V Basavaraju et al., Serologic Testing of US Blood Donations to Identify Severe Acute Respiratory
Syndrome Coronavirus 2 (SARS-CoV-2)–Reactive Antibodies: December 2019–January 2020, CLINICAL
INFECTIOUS DISEASES, U.S. CENTRE FOR DISEASE CONTROL AND PREVENTION, 2020,
https://doi.org/10.1093/cid/ciaa1785.
52
Talha Burki, The Origin of SARS-CoV-2, 20 THE LANCET, 1018, https://doi.org/10.1016/S1473-
3099(20)30641-1.

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place in other States and there is lack of clear and concurring evidence on the exact origin of
the coronavirus.
The Arbitral Tribunal in Trail Smelter53 held that no State has the right to use or permit the use
of its territory in such a manner as to cause injury by fumes in or to the territory of another or
the properties or persons therein, when the case is of serious consequence and the injury is
established by clear and convincing evidence. The existence of “clear and convincing
evidence” is absent in the present case.
Therefore, it is humbly submitted that the conduct of Mandarin cannot be held responsible for
causing transboundary harm as the essential conditions of human causation and territoriality
are not satisfied with clear and convincing evidence as established in Article 1 of the Draft
Articles are not satisfied.
B. That the State of Mandarin complied with due diligence requirement, procedural
obligations and precautionary approach in the context of regulating wet markets
and containment of the spread of coronavirus within its territory as mandated by
international law
In complying with a State’s duty to prevent transboundary harm, the standard of conduct
required to be observed is due diligence.54 When a state has taken the necessary measures to
prevent transboundary harm, it is generally not held responsible under international law 55. In
other words, such obligation is one to be fulfilled with ‘due diligence’.56 Article 3 of ILC Draft
on Transboundary Harm, provides that the state of origin shall take “all appropriate measures”
to prevent significant transboundary harm or at any event to minimise the risk thereof. In the
Pulp Mills case57, this Court has ruled that the notification to other countries of activities with
possible transboundary effects58 is important factor in determining if a state respected the due
diligence obligation. The State of Mandarin fulfilled the duty of due diligence in the following
manner-

53
TRAIL SMELTER, supra at note 6.
54
Convention on Biological Diversity, 1992, art.3, 31 I.L.M. 818; Stockholm Declaration on the Human
Environment, Prin.21, U.N. Doc. A/CONF.48/14/Rev.1 (1973); Rio Declaration on Environment and
Development, Prin.2, U.N. Doc. A/CONF.151/26 (1992).
55
ALEXANDRE KISS & DINAH SHELTON, GUIDE TO INTERNATIONAL ENVIRONMENTAL LAW 20 (Cambridge
University Press, 2007).
56
ULRICH BEYERLIN & THILO MARAUHN, INTERNATIONAL ENVIRONMENTAL LAW 42 (Hart/Beck, 2011).
57
Pulp Mills in the River Uruguay (Arg. v. Uru.), 2010 I.C.J. (Apr. 20).
58
Id.

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1. That appropriate procedural duties and regulatory measures for wet markets were in
place
It is humbly submitted before this Hon’ble Court that some measures that may be appropriate
to discharge the duty of due diligence include continuous monitoring or supervision, risk
assessments, legislation, administrative policies and regulation, enforcement action and, most
notably, international cooperation (Article 3,4,7). 59 The duty not to cause transboundary harm
is never an absolute duty to prevent all harm, instead, it only requires a state to prohibit
activities known to cause damage to the environment and to mitigate possible environmental
harm.60
Article 5 of the Draft Articles mandates the States concerned to take “the necessary legislative,
administrative or other action” to implement the provisions of the present articles. However,
due diligence leaves room for States to determine which measures are necessary, appropriate,
feasible and available within their capacities to achieve the given objective.61
It is humbly submitted before this Hon’ble Court that Mandarin has exercised due diligence by
fulfilling its procedural obligations with regards to the prevention of outbreaks of diseases in
its wet markets. Mandarin’s Wildlife Protection Law prohibits the sale, purchase, or use of
state-protected wild animals and products made from these animals, but allows the trade and
use of “artificially-bred wild animals” if approvals are in place.62 Wildlife falling outside of
the state protection catalogue may be legally traded if quarantine certificates and other
mandatory licenses and approvals are obtained.
The existing Wildlife Protection Law bans food products made from state-protected wild
animals. A land wildlife protection regulation prohibits the sale or purchase of state-protected
wild animals and products at marketplaces, but allows hunting license holders to sell non-state
protected wild animals at certain marketplaces designated by local government authorities.63
In response to the COVID-19 pandemic, a fast-track legislative decision was passed on
February 24, 2020, banning consumption of any wild land animals as food, including any

59
DRAFT ARTICLES, supra note 8, at 154-155; see also, art.4, 7.
60
ALEXANDRE, supra at note 16.
61
XUE, supra note 7, at 164.
62
Wang Chen & Jiang Yifan, The Legal Proposals Shaping the Future of Wildlife in China, CHINA DIALOGUE
(Apr. 3, 2020), https://perma.cc/BHT6-QT7V.
63
A. ALONSO AGUIRRE ET AL., Illicit Wildlife Trade, Wet Markets, and COVID‐19: Preventing Future
Pandemics, WORLD MED HEALTH POLICY (2020).

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artificially bred or farmed wild animals.64 It also bans hunting, trading, or transporting, for the
purpose of eating, any land animals that grow and reproduce naturally in the wild.65 The
decision does not ban other uses of wildlife, such as for scientific research, medicine, or
exhibition. The Wildlife Protection Law is expected to be revised during 2020.66
It is humbly submitted before this Hon’ble Court that Mandarin has complied with the
requirement of due diligence by enacting appropriate laws, regulations, timely inspections of
the wet markets.
2. That Mandarin has fulfilled its precautionary obligations under Article 3, 8 and 9 of
the Draft Articles
It is humbly submitted that the required degree of care required to be taken by Mandarin should
have been proportional to the degree of hazard involved. The degree of harm itself should be
foreseeable and the State must know or should have known that the given activity has the risk
of significant harm (Article 3).67 The principle is applicable when there is a threat of a serious
or irreversible damage and scientific uncertainty.68 Therefore, in order to act accordingly to
this a rigorous scientific proof is not needed.69 The application of the precautionary measure
has to be: proportional between the measure and the desired level of protection70 and be cost-
effective (Principle 15, Rio Declaration).71
The Preamble of the Convention on Biological Diversity72 (that has been ratified by Mandarin)
and Article 3(3) of the UNFCCC73 all impose precautionary obligations on their contracting
parties. Under Article 874 of the Draft Articles, “the State of origin shall provide the State likely

64
China's legislature adopts decision on banning illegal trade, consumption of wildlife, XINHUA, (Feb. 24,
2021, 8:34 P.M.), http://www.xinhuanet.com/english/2020-02/24/c_138814328.htm.
65
Id.
66
Top legislature to inspect enforcement of wildlife protection law, XINHUA, (May 30, 2020, 7:22 P.M.),
http://www.xinhuanet.com/english/2020-05/30/c_139101031.htm.
67
DRAFT ARTICLES, supra note 8, at 155.
68
Guidelines for Applying The Precautionary Principle To Biodiversity Conservation And Natural Resource
Management, 67TH MEETING OF THE IUCN COUNCIL,
https://www.iucn.org/sites/dev/files/import/downloads/ln250507_ppguidelines.pdf. (2007).
69
Charles Weiss, Expressing Scientific Uncertainty, Law, Probability and Risk, OXFORD UNIVERSITY PRESS,
(2003) 2, 25-56.
70
Marco Martuzzi and Joel A. Tickner (ed.), The Precautionary Principle: Protecting Public Health, The
Environment And The Future Of Our Children, WHO-EUROPEAN UNION,
https://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf (2004).
71
Rio Declaration on the Human Environment, Principle 15, U.N. Doc. A/CONF.151/26 Vol. I (1992).
72
CBD, supra note 3, art. 3(3).
73
United Nations Framework Convention on Climate Change: Resolution / Adopted by the General Assembly,
A/RES/48/189, (1994).
74
DRAFT ARTICLES, supra note 8, art. 8.

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

to be affected with timely notification of the risk and the assessment and shall transmit to it the
available technical and all other relevant information on which the assessment is based.” The
obligation to notify other States of the risk of significant harm to which they are exposed is
reflected in the Corfu Channel case75, where ICJ characterized the duty to warn as based on
“elementary considerations of humanity”. In addition to the utilization of international
watercourses, the principle of notification has also been recognized in respect of other activities
with transboundary effects, for example, article 3 of the Convention on Environmental Impact
Assessment in a Transboundary Context76 and Principle 19 of the Rio Declaration77.
That it is humbly stated and submitted before this Hon’ble Court that after cases of viral
pneumonia were reported in Hubei Provincial Hospital of Integrated Chinese and Western
Medicine on December 27, 2019, the Wuhan city government arranged for experts to look into
these cases through an analysis of the patients’ condition and clinical outcome, the findings of
epidemiological investigations, and preliminary laboratory testing results.78 On 1st January,
2021. the NHC set up a leading group on the disease response. The next day, it formulated
Guidelines on Early Detection, Early Diagnosis and Early Quarantine for Prevention and
Control of Viral Pneumonia of Unknown Cause.79 Since January 3, 2021 China began to update
the WHO, relevant countries, and regional organizations, as well as its own regions of Hong
Kong, Macao and Taiwan, on the development of the disease, even before the human-to-human
transmission was confirmed on January 19, 2021.80
In addition, the international community currently have not yet had a clear and uniform
understanding of the precautionary principle.81 Consequently, uniform practice does not
exist.82 Further, the International Tribunal for the Law of the Sea and this Court have shown
reluctance to examine the merits based on precautionary approach while it was submitted
multiple times in arguments by states.83

75
Corfu Channel, (U.K. v. Albania) 1949 I.C.J. 4, (Apr.9).
76 Convention on Environmental Impact Assessment in a Transboundary Context, 1989 U.N.T.S. 309, 30
I.L.M. 800 (1991)
77
RIO DECLARATION, supra note 32, Principle 19.
78
Fighting COVOD-19 China in Action, THE STATE COUNCIL INFORMATION OFFICE OF THE PEOPLE’S REPUBLIC
OF CHINA, http://www.xinhuanet.com/english/2020-06/07/c_139120424.htm (2020).
79
Id.
80
Id.
81
PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 272 (Cambridge University Press,
2003).
82
Asylum (Colom. v. Peru), Judgment, 1950 I.C.J. 266, at 277 (Nov. 20).
83
MOX Plant Case, , ¶75; Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 457, at 362 (Dec.20) (Weeranmantry J.,
dissenting).

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

Therefore, it is humbly submitted that the State of Mandarin acted proactively by ensuring due
diligence in regulating its wet markets and by informing the IHO about the existence of a
“pneumonia like illness” even before human-to-human transmission was established with
scientific certainty.
3. Strict liability cannot be imputed to Mandarin
Strict liability principle establishes liability for harm caused by abnormally dangerous activities
on the original state irrespective of fault or ownership.84 Under fault liability, the test of due
diligence is accepted as a standard for the duty to prevent transboundary harm,85 and States are
not automatically liable for damage caused.86 It only requires reasonable efforts by a State to
take appropriate measures in a timely fashion.87
Publicists also opine that strict liability is anathema to developing countries as they often lack
the information needed to predict the extent of transnational harm that will result from domestic
activities, especially the activities of foreign entities upon whom these states often rely for
economic development.88
Strict liability may also hinder developing states' ability to compete internationally and thus
impede their economic growth.89 The economic level of States is one of the factors to be taken
into account in determining whether a State has complied with its obligation of due diligence.90
It is humbly submitted before the Hon’ble Court that Mandarin has appropriate and robust laws
in place to regulate wet markets in conformity with international standards, further, Mandarin
took timely measures to contain the spread of the novel virus, by timely and consistent
notification to the IHO and cooperation with other States through assistance in sharing of
information related to scientific discovery concerning coronavirus, medical equipments and
other mechanisms of containment of the novel coronavirus, and has thus fulfilled its condition
for due diligence.

84
John Kelson, State Responsibility and Abnormally Dangerous Activities, 13 HARV. INT'L. L.J. 197, 200
(1972).
85
DRAFT ARTICLES, supra note 8, art. 8; SHAW, supra note 4.
86
SHAW, supra note 11 at 855.
87
STEPHENS, INTERNATIONAL COURTS AND ENVIRONMENTAL PROTECTION 158 (Cambridge University Press,
2009); BERGKAMP, LIABILITY AND ENVIRONMENT 165 (Kluwer Law, 2001).
88
Magraw, The International Law Commission's Study of International Liability for Non-prohibited Acts as It
Relates to Developing States, 61 WASH. L. REV. 1041 (1986).
89
Robinson, Problems of Definition and Scope, LAW, INSTITUTIONS AND THE GLOBAL ENVIRONMENT, 48-49
(1972).
90
DRAFT ARTICLES, supra note 8, art. 3(13).

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

Therefore, it is humbly submitted before the Hon’ble Court that Mandarin has complied with
all the requisite precautionary measures accepted as a standard of due diligence with utmost
good faith and sincerity, with all the means well within its economic capability, and therefore,
it cannot be held liable for strict liability even if its imputability for the transboundary harm is
established, as it is safeguarded by the meeting the standard of due diligence.
C. That Mandarin cannot be held liable under “polluter pay” principle to pay
compensation to the applicant States for spread of coronavirus
The “polluter pay” principle argues for internalizing the true economic costs of pollution
control measures clean-up and protection measures within the costs of the operation of the
activity itself. However, the principle has certain limitations.91 The extent to which civil
liability makes the polluter pay for environmental factors depends on a variety of factors. If
liability is based on negligence, not only does this have to be proved, but harm which is neither
reasonably foreseeable nor reasonably avoidable will not be compensated.92
It is humbly submitted before this Hon’ble Court that after the first case of “pneumonia like
illness” was reported in Hubei Provincial Hospital on Dec. 27, 201993, the local government in
tandem with the central government took all urgent and reasonably precautionary measures to
contain the spread the of the new disease the severity of which was not foreseeable, using its
experience of fighting previous SARS outbreak and maintained all international standards of
reporting the disease to the IHO and cooperating with timely information to other States, even
before human-to-human transmission had been scientifically established.
Further, it is humbly submitted that as adopted at Rio, the ‘polluter pays’ principle is neither
absolute nor obligatory.94 The principle is not a part of customary international law.95
Therefore, given the pro-active approach of Mandarin administration as stated supra, the
allegation of negligence cannot be accepted beyond reasonable doubt.
Conclusively, it is humbly submitted that Mandarin cannot be held liable for transboundary
spread of the coronavirus given that the essential conditions of human causation and territorial

91
P. W. BIRNIE AND A. E. BOYLE, INTERNATIONAL LAW AND THE ENVIRONMENT, 2nd ed., Oxford University
Press, 2002, p. 93-94).
92
Id.
93
XINHUA, supra note 78.
94
BERNIE, supra note 91, p. 93.
95
F.L. MORRISON AND M. WOLFRUM, ED., INTERNATIONAL, REGIONAL AND NATIONAL REGIONAL
ENVIRONMENTAL LAW 19 (Kluwer Law International, 2000); Commentary on the Draft Articles on Prevention
of Transboundary Harm from Hazardous Activities, 2001, in REPORT OF THE I.L.C. IN ITS 53RD SESSION,
(2001).

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JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

origin of the coronavirus have not yet been established with scientific certainty. In addition to
the same, Mandarin has complied with due diligence and precautionary measures to the best of
its capability in order to prevent transboundary spread of the coronavirus soon after the initial
diagnosis of the existence of such a pathogen and therefore, cannot be held liable for COVID-
19 under strict liability principle and polluter pay principle of the international law.

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MEMORANDUM ON BEHALF OF RESPONDENT
JUSTICE DIPAK MISHRA INTERNATIONAL MOOT COURT COMPETITION, 2(11) OF 2021

PRAYER

IN LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED, THE COUNSEL FOR
THE RESPONDENT HUMBLY REQUESTS THE HON’BLE COURT TO ADJUDGE, HOLD AND DECLARE

THAT:

1) Communist Republic of Mandarin is not liable for violation of Articles 6 and 7 of

International Health Regulations.
2) Republic of Mandarin is not liable under ‘transboundary harm’ principle because of its
economic policies and laws regulating wet markets in Mandarin

And pass any other order, direction or relief that the court may deem fit in the best interests
of justice, fairness, equity and good conscience.

FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND FOREVER PRAYS.

Place Drafted and filed

Date Sd/-

COUNSELS APPEARING FOR RESPONDENT

XIII
MEMORANDUM ON BEHALF OF RESPONDENT