STATEMENT OF JURISDICTION

The informant in the present case has approached the domestic courts of Kartina to initiate

the same under Article VII of the River Biffin Water Treaty. The informant most humbly and

respectfully submits to the jurisdiction of the domestic courts of Kartina in the present matter.

Article VII: Settlement of Differences and Disputes

(1) Any question which arises between the Parties concerning the interpretation or

application of this Treaty or the existence of any fact which, if established, might

constitute a breach of this Treaty can be brought to the domestic courts of the two

Parties to this Treaty.

 STATEMENT OF FACTS

1. This case arises from a dispute arising out of the usage of River Biffin, a river which

initiates from the Republic of Kartina, and flows into the Democratic Republic of

Dhall. It is important to emphasise that both the States signed and ratified a bilateral

treaty regarding River Biffin in the year 1979, which was to be in force for 50 years.

2. The Republic of Kartina is a developing ex-colony, which shares its western border

with the easter border of the Democratic Republic of Dhall. Kartina is primarily

engaged in agriculture, and Dhall is primarily engaged in fishing, and agriculture.

Both the states rely heavily on River Biffin.

3. The Republic of Kartina is one of the poorest countries in the world, infested with

various problems such as increase in population and widespread poverty. Mr. Angelo

Mubble, the President of Kartina, announced the construction of a Run-of-River Plant

on River Biffin, named The Great Kartina Dam, to improve the lives of the people of

that State.

4. Ms. Nancy Lu, the Prime Minister of Dhall expressed her displeasure with the Dam,

with the contentions that this could violate the provisions of the bilateral treaty, and

that it would cause major disruptions to the marine ecosystems and the livelihoods of

the people of Dhall. She presents a report to support her contentions.

5. However, Mr. Mubble responded by saying that technological developments to a

country are more important than worrying about environmental preservation.

 STATEMENT OF ISSUES

1. Taking into consideration past cases by River Dispute Tribunals as well as the

generally accepted principles of environmental law, should Kartina be given the

power to dictate how natural resources are distributed?

SUMMARY OF ARGUMENTS

1. THAT KARTINA SHOULD NOT BE GIVEN THE POWER TO DICTATE HOW

NATURAL RESOURCES ARE DISTRIBUTED.

 ARGUMENTS ADVANCED

I. KARTINA SHOULD NOT BE GIVEN THE POWER TO DICTATE HOW

NATURAL RESOURCES ARE DISTRIBUTED.

a. Running water is to be considered as res communes.

1. The Informant would like to submit that running water has always been considered to

be res communes.1 This provides that water is an item which by its very nature can

only be used and not owned, and is adapted to general use. Water cannot be a subject

of private ownership, as this individual control is contrary to the “natural purpose” of

such things, supported by the doctrines of res extra commercium, and res publicae.

State ownership over res communes and res nullius is not ownership in the traditional

sense of dominion, and is rather a kind of guardianship for social purposes, in the

form of imperium.

2. The Opposite Party, by way of dictating how River Biffin is to be used and

distributed, is interfering with the relations that the Informant has with the natural

media, River Biffin. A large portion of the residents of Dhall are fishermen, where fish

is their largest export. The fairly large population which is engaged in farming also

heavily relies on River Biffin for irrigation. Taking this into consideration, where the

lives and livelihood of the Informant state is dependant upon the river, the Opposite

Party infringes the like liberties of the Informant by which its own is measured. As per

1
R.W. Lee, The Elements of Roman Law: With a Translation of the Institutes of Justinian (4 th Edn., Sweet and
Maxwell Ltd. 1956) 109, Book II, “The Law of Property.”
 common law, flowing water is only of public right in the sense that it is public or

common to all who have a right of access to it.

b. The principle of limited territorial sovereignty or limited territorial

integrity applies here.

3. As per the facts, River Biffin qualifies to be an international river. The Informant

submits that, taking into consideration the principle of limited territorial integrity,

every riparian State has a right to use the waters of an international river. This right

comes along with a corresponding duty to ensure that such use does not harm other

riparians, asserting the equality of all riparians in the uses of the waters of the

international river. The construction of the Run-of-River Plant on River Biffin by the

Opposite Party has the potential to cause a lot of damage to the ecosystem as well as

the professions of the people. This contention is supported by a report presented by

Dhall’s leading environmental scientists.

4. As per the report, the harmful environmental effects of building a dam are most often

felt downstream. There would be a degradation in the quality and quantity of the

water, not making it fit for irrigation in Dhall. All the farmers of Dhall will face a

substantial issue, as they will lose both the supply of water and also all the natural

sediments that flow with it that are beneficial to plant life. The health and safety of

marine life is at risk, and so is the livelihood of the fishermen of Dhall. Taking all this

into consideration, the Informant humbly submits that when the activities of the

Opposite Party by using River Biffin has such a negative impact on the Informant,

then the Opposite Party by choosing to build the dam is in contravention of principles

of international law.
 c. The principle of equitable and reasonable utilisation cannot be taken as a

defence by the Opposite Party.

5. The principle of equitable and reasonable utilisation can only be used by a State if it

takes up an obligation that such use will not cause significant harm. This is supported

by Article 12 of the Berlin Rules, 2 where it provides that states shall manage such

waters in an equitable and reasonable manner, having due regard for the obligation

not to cause significant harm to other basin States. Article 16 of the Berlin Rules

further talks about such transboundary harm, and how it needs to be avoided.

However, apart from the report stating how harmful the construction of the dam will

be upon the Informant, the President of Kartina, Mr. Mubble himself has explicitly

stated that he believes that the way to propel a nation into future is to rely on

technological developments, rather than worrying about environmental preservation.

This statement provides that the Opposite Party has no regard for avoiding any sort of

a transboundary harm, and is fully aware of the highly negative consequences that the

construction of the dam will have on the Informant. Hence, such construction will not

be justified under Article 13 of the Berlin Rules, and is actually in contravention of

Article 12 of the Berlin Rules.

5.1. Cooperation: There is no cooperation between the two States which are

parties to the bilateral treaty regarding River Biffin. The Opposite Party has

not cooperated and has not acted in good faith in the management of waters of

River Biffin, which is for the mutual benefit of the participating States.

5.2. Equitable utilization: There is no equitable utilization, as the construction of

the dam will have a significant harm and negative impacts on the Informant.

5.3. Avoidance of transboundary harm: The Opposite Party does not work upon

reducing or mitigating the harm the construction of the dam can have on the
2
 Informant. The environmental damage is something extremely harmful,

destructive and irreparable; the solution that the Opposite Party will provide

electricity generated from the plant to the Informant at subsidized rate does not

in any way justify its actions, or mitigate any harm, to the environment or

livelihoods of the people, that has been caused.

5.4. Equitable participation: There is no equitable participation too, as the

building of the Run-of-River Plant goes against the consent of the Informant,

as it is both the Informant and the Opposite Party that entered into a treaty

providing that none of the governments of any of the countries or any private

parties are permitted to take any action that could change the flow rate or the

course of River Biffin. Hence, the Opposite Party has neglected the principle

of equitable participation.

d. Kartina as an upstream riparian violated its obligation of prior

notification.

6. The Informant submits that since both the upstream and downstream riparians have

the ability to harm each other, in international law there is a requirement of

notification by both. Therefore, downstream riparians are entitled to be notified of

projects on shared rivers by upstream riparians.

7. However, no information about the same was given to Dhall prior to the public

announcement. This goes against the mandates under international law, such as the

Helsinki Rules, 1966. As per Article XXIX of the Rules, “a State, regardless of its

location in a drainage basin, should in particular furnish to any other basin State, the

interests of which may be substantially affected, notice of any proposed construction

or installation which would alter the regime of the basin.” This is required so that the
 notice will permit the recipient to make an assessment of the probable effect of the

proposed alteration. Neither did the Opposite Party give a particular notice to the

Informant, nor did it afford to Dhall a reasonable period of time to make an

assessment of the probable effect of the proposed construction or installation, and to

submit its views thereon to the Opposite Party. The 1992 Rio Declaration on

Environment and Development also mandates the same, where it provided that such

States shall provide prior and timely notification, when its activities might have

significant transboundary harm, and also made it a requirement for States to ‘consult’

with the other States at an early stage, and in good faith. The same is also supported

by Articles 11 and 12 of the 1997 UN Watercourses Convention. There was no

foreclosure of future use by the Opposite Party.

e. The Opposite Party violates the doctrine of equitable apportionment.

8. The doctrine of equitable apportionment is invoked for allocation of a shared water

resource between two or more States.3 The doctrine’s “guiding principle” is that States

“have an equal right to make a reasonable use” of a shared water resource. 4 However,

there is no unfettered ownership or control over the flowing interstate waters under

this principle. Each State has an interest that should be respected by the other. 5 The

Informant submits that the Opposite Party does not make a reasonable use of the

shared water resource, and does not also take into consideration the effects it’s

activities will have on Dhall, on their environment and livelihood activities. Hence,

the doctrine of equitable apportionment is violated by the Opposite Party. The

3
Colorado v. New Mexico, 1982 SCC OnLine US SC 219
4
Florida v. Georgia, 2021 SCC OnLine US SC 18
5
Wyoming v Colorado, 1922 SCC OnLine US SC 129
doctrine of prior application can also not be a defence for the Opposite Party here, as

it exceeds the equitable share of Kartina in the first place.