BEFORE THE INTERNATIONAL COURT OF JUSTICE

LA COUR INTERNATIONALE DE JUSTICE

AT THE PEACE PALACE,

THE HAGUE, NETHERLANDS

GENERAL LIST NO.1

CASE CONCERNING PIDGEOTS

STATE OF JOHTO………………………………………….APPLICANT

REPUBLIC OF KANTO……………………………………..RESPONDENT

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 TABLE OF CONTENTS

Index of Authorities.........................................................................................................................2

Table Of Abbreviations...................................................................................................................6

Statement of Issues..........................................................................................................................7

Statement Of Jurisdiction................................................................................................................7

Statement Of Facts...........................................................................................................................8

Legal Pleadings................................................................................................................................1

I. Johto’s Regulation Of Wet Markets Were In Consonance With Obligations Under

International Law.........................................................................................................................1

1.1. The ecological damage caused cannot be attributed to Johto.......................................1

II. Johto’s Response To The Muk-15 Outbreak Is In Consonance With International Law. 3

III. The Patent For Dittrin Is Valid Under International Law.................................................4

2.1. Taking of Pidgeots for the manufacture of Dittrin is valid...........................................4

IV. Kanto’s Expropriation Ordinance violates International law.........................................10

3.1. The expropriation of the assets of the Platinum contravenes the CIL on investment
and therefore, violates the TOG.............................................................................................11

3.2. The expropriation is not a valid countermeasure and constitutes an internationally

wrongful act...........................................................................................................................14

Prayer For Relief............................................................................................................................17

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 INDEX OF AUTHORITIES

CASES

ADC Affiliate Limited and ADC & ADMC Management Limited v. The Republic of Hungary,
ICSID Case No. ARB/03/16, Award, ¶435 12
Application of Convention on Prevention and Punishment of Crime of Genocide (Bosnia &
Herzegovina v. Serbia & Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶208 1
Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. The United
Mexican States, ICSID Case No. ARB (AF)/04/5, Award 16
Armed Activities in the Territory of Congo (Democratic Republic of Congo v. Uganda),
Judgement, 2005 I.C.J. Rep. 168 (Dec. 2005) 1
Azurix Corporation v. Argentine Republic, ICSID Case No. ARB/01/12, Award 11
Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain),
Judgment, 1970 I.C.J. Rep. 3 8
Construction of a Road in Costa Rica along the San Juan River (Costa Rica v. Nicaragua),
Judgment, 2015 I.C.J Rep. 665, ¶176 2
Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Merits, 1949
I.C.J. Rep. 4 7
Corn Products International, Inc. v. United Mexican States, ICSID Case No. ARB (AF)/04/1,
Decision on Responsibility 16
Elettronica Siccula S.p.A (ELSI) (U.S.A. v. Italy), Judgment, 1989 I.C.J Rep. 15 12
Factory at Chorzów (Ger v. Pol), Merits, 1927 P.C.I.J. Series A No. 9 21 (July 1927) 13
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment 1997 I.C.J Rep. 7 5
Illinois Railroad Co. (U.S.A.) v. United Mexican States, 1926 R.I.A.A. 21 (March 1926). 13
Interpretation of Air Services Transport Agreement (U.S.A. v. France), Award, 1963 R.I.A.A. 5
(December 1963) 16
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 6
LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc. v. Argentine Republic,
ICSID Case No. ARB/02/1, Award 13
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A.), Judgment,
1986 I.C.J. Rep. 14, ¶68 1

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Norwegian Shipowners’ claims (Norway v. USA), Award, 1922 R.I.A.A. 307 (October 1922) 14
Nykomb Synergetics Technology Holding AB v. The Republic of Latvia, Award 12
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. Rep. 14, ¶52 7
Saluka Investments B.V. v. The Czech Republic, UNCITRAL Partial Award 13
Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Award, ¶236 14
United States Diplomatic and Consular Staff in Tehran (U.S.A. v. Iran), Judgment, 1980 I.C.J
Rep.3 17
Whaling in the Antarctic (Australia v. Japan), Judgment, 2014 I.C.J. Rep. 216 5

OTHER AUTHORITIES

C. SCHREUER, Protection Against Arbitrary or Discriminatory Measures, available at

https://www.univie.ac.at/intlaw/94.pdf 12
Declaration, London Conference on Illegal Wildlife Trade to Convention on the International
Trade in Endangered Species on Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243 2
EXPROPRIATION: A SEQUEL, available at https://unctad.org/en/Docs/unctaddiaeia2011d7_en.pdf
(UNCTAD ed., 2012). 12
Guilman & Lefkowitz, The Convention on Biological Diversity : Hard Won Global Achievement
3 YB INT’L L. 42 (1993), 6

BOOKS

A. ZIMMERMANN ET AL., THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE – A

COMMENTARY (2nd ed. 2005). 1
J. CRAWFORD, BROWNLIE'S PRINCIPLES OF PUBLIC INTERNATIONAL LAW (8th ed. 2012) 11
JAMES CRAWFORD ET AL., THE LAW OF INTERNATIONAL RESPONSIBILITY (2nd ed., 2010). 8
MALCOLM N SHAW, INTERNATIONAL LAW 828 (6th ed., 2008) 11
MUTHUCUMARASWAMY SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN INVESTMENT (3rd
ed. 2010). 13
PATRICIA BIRNIE ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT 115 (3rd ed., 2009) 6
R. DOLZER AND C. SCHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW 89 (2nd ed.,
2012) 11
XUE HANQUIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003) 7

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 CONVENTIONS

Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, G.A.
Res. 56/83, 2002 2
Bilateral Investment Treaty, Austria-Mexico, Art.4(3), June 29, 1998 12
CESCR General Comment No.21, Right of Everyone to Take Part in Cultural Life,
E/C.12/GC/21 8, 9
CMS CoP, Res. 11.2 Strategic Plan for Migratory Species 2015-2023,
UNEP/CMS/COP11/REPORT Annex VIII 3
Convention on Biological Diversity art.2, June 5, 1992, 1760 U.N.T.S. 79 6
Convention on the Conservation of Migratory Species of Wild Animals, Art. 1(e), Jun. 6, 1979,
1651 U.N.T.S. 333 4
G.A. Res.3281, Charter on Economic Rights and Duties of States 11
ILO Convention No.169, Convention Concerning Indigenous and Tribal Peoples in Independent
Countries 9
International Covenant on Civil and Political Rights art.2(1), Mar. 23, 1976, 999 U.N.T.S. 171 9
International Covenant on Economic, Social and Cultural Rights, art. 15(2), Jan. 3, 1976, 993
U.N.T.S. 3 8
Manila Declaration on Sustainable Development and Migratory Species, UNEP/CMS/Resolution
12.3 5
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits
Arising from their Utilization to the Convention on Biological Diversity art.2(c), October 29,
2010, UNEP/CBD/COP/DEC/X/1 10
Rio Declaration on Environment and Development, June 14, 1992, Principle 2, 31 I.L.M. 874 6
Stockholm Declaration, Principle 21, 11 I.L.M. 1416 6
The Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights, 28th September, 1984, E/CN.4/1985/4 9
Vienna Convention on the Law of Treaties, art. 31, Jan. 27, 1980, 1155 U.N.T.S. 331 5
WHO, International Health Regulations, Art. 5 (1), May 23, 2005, 2509 U.N.T.S. 79 3

ARTICLES

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Anthea Roberts, Triangular Treaties: The Extent and Limits of Investment Treaty Rights, 56
HARV. INT. LAW J. 353 (2015) 15
Antonio Cassese, The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on
Genocide in Bosnia, 18 EUR. J. INT. LAW 649 (2007) 3
Chittharanjan F. Amerasinghe, State Breaches of Contracts with Aliens and International Law,
58 AM. J. INT. LAW 881–913 (1964). 14
F. A. Mann, State Contracts and State Responsibility, 54 AM. J. INT. LAW 572 (1960). 14
Jan Schokkaert & Yvon Heckscher, Investment Contracts between Sovereign States and Private
Companies - Link between BITS and State Contracts, 11 J. WORLD INVEST. TRADE 903
(2010). 14
Joseph Sinchak, The Extraterritorial Application of Human Rights Treaties: Al-Skeini et al. v.
United Kingdom, 3 PACE INT'L L . REV 416 9
Junianto James Losari & Michael Ewing-Chow, A Clash of Treaties: The Lawfulness of
Countermeasures in International Trade Law and International Investment Law, 16 J. WORLD
INVEST. TRADE 274 (2015). 15
Thomas Pogge, Montreal Statement on the Human Right to Essential Medicines, 16 CAMBRIDGE
Q. HEALTHCARE ETHICS 97, 107 (2007). 9

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 TABLE OF ABBREVIATIONS

¶ Paragraph

Art. Article

CBD Convention on Biological Diversity

CIL Customary International Law

CITES Convention on the International Trade in

Endangered Species on Wild Fauna and Flora
CMS Convention on the Conservation of Migratory
Species of Wild Animals
CoP Conference of Parties

FAO Food and Agriculture Organization

G.A. Res. General Assembly Resolution

GATT General Agreement on Tariffs and Trade

ICCPR International Covenant on Civil and Political

Rights
ICESCR The International Covenant on Economic,
Social and Cultural Rights
ILC International Law Commission

OIE World Organisation for Animal Health

Res. Resolution

TK Traditional Knowledge

SOF. Statement of Facts

UDHR Universal Declaration of Human Rights

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 7
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 STATEMENT OF ISSUES

I. WHETHER JOHTO’S REGULATION OF WET MARKETS WAS IN CONSONANCE

WITH INTERNATIONAL LAW?

II. WHETHER JOHTO’S RESPONSE TO THE MUK-15 OUTBREAK WAS IN

CONSONANCE WITH INTERNATIONAL LAW?

III. WHETHER THE PATENT FOR DITTRIN VIOLATES INTERNATIONAL LAW?

IV. WHETHER THE EXPROPRIATION ORDINANCE VIOLATES INTERNATIONAL

LAW?

STATEMENT OF JURISDICTION

In accordance with Art. XXV of the Treaty of Gardevoir [“TOG”], which recognizes the
jurisdiction of the ICJ ipso facto, the State of Johto [“Johto”] and the Republic of Kanto
[“Kanto”], have agreed to resolve their differences regarding the questions relating to the
Pidgeots, its commercial use and the expropriation of the Platinum Group.

Johto filed an application before the Registry of the Court, pursuant to which, Kanto
communicated its intention to file counterclaims. Johto and Kanto are obligated to recognize the
jurisdiction of the ICJ in accordance with Art.XXV of the TOG.

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 STATEMENT OF FACTS

Introduction

The State of Johto and Republic of Kanto are neighbouring countries in the continent of ARES
separated by the Mount Silver. Johto is located in Western ARES and Kanto in Eastern ARES.
The international boundary of the States follows along the peaks of Mount Silver in the north and
runs through the ‘Swamp Marsh’ (hereinafter ‘Marsh’), which is listed under the Ramsar
Convention on Wetlands of International Importance, in the south. Marsh is shared by the two
countries almost equally by area. Marsh has a famous ‘Lake Aquity’ which lies in Kanto’s
boundaries.

Historical Background

In 1910, all areas East of the Mount Silver unified into the Republic of Kanto and a democracy
was established. The principalities west of the Mount Silver were unified in 1921 into the State
of Johto. Subsequently, a dispute arose regarding the border determination between the states,
which resulted in the ‘Treaty of Gardevoir’ in 1954.

The Pidgeots

Pidgeots is a migratory bird endemic to the western slope of the Mount Silver and is found
nowhere else on Earth. Young Pidgeots are called Pidgeys. Pidgeots are on the ICUN Red List of
Threatened Species. Pidgeots migrate to Lake Aquity annually to lay eggs and return back to the
Mount Silver with their young ones. Researchers have reported that the red plume of the
Pidgeots, and their bodies in general, is home to many virus strains including the‘Muk Virus’.
The virus is not present in the Pidgeots eggs and Pidgeys. Pidgeots are generally not consumed
by any ethnic group in Johto or Kanto except the Rocketeers who are a group in Johto that
consume Pidgeys and Pidgeot eggs.

Unfolding of events

In August 2015, Plasma Labs announced that they had made a significant discovery of a
compound on Pidgeots which has therapeutic properties. In October 2015, unsubstantiated
reports of Johto citizens ailing from an unexplainable fever appeared on social media. On 20 th
December 2015 New Bark Town health authority released a statement reporting an illness which

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was controllable and presented no evidence of human transmission. On 15 th January 2016, the
state media of Johto reported its first death from the illness. It was reported that the illness was
caused by ‘Muk Virus’ virus found in Pidgeots. The State of Johto imposed strict lockdown in
New Bark Town and notified the WHO of a public health emergency. The disease was named
‘Muk-15’ by WHO. On January 26th , the first case in Kanto was reported in an individual who
had a history of travel to New Bark Town. On January 27, the Government of Johto released a
statement that confirmed that Muk-15 originated in Johto’s wet markets near New Bark Town.
All wet markets in Johto were thereafter closed. The first case of suspected local transmission
was reported in Kanto in a patient with no travel history to Johto nor contact with anyone
diagnosed with the virus.

On 20 th February 2016 the WHO declared the Muk-15 outbreak to be a

Public Health Emergency of International Concern (PHEIC). Scientific Reports by experts in
Immunology and Microbiology reported that the virus had evolved from natural processes and
was not human engineered. In March 2016, Plasma Labs announced that they had discovered a
compound ‘Ditto’ in the bone extract of Pidgeots which had significant benefits in treatment of
Muk-15. Subsequently, they developed a vaccine which was named ‘Dittrin’, and applied for a
patent. The application was made public. The Kantonese alleged appropriation of TK in creating
the vaccine. Upon scrutinization of the patent application the patent was granted in July 2016.

In a public statement, the President of Kanto made several unsubstantiated claims.

In August, 2016, the Government of Kanto passed an ordinance expropriating the assets and
properties of Platinum Group’s outlets in Kanto, and put to halt all contractual payments to the
Platinum Group. The actions were widely condemned by the State of Johto. Subsequently the
relations between the countries deteriorated and under the Treaty of Gardevoir, Johto instituted
proceedings against the Republic of Kanto alleging violations of international law by Kanto
before the International Court of Justice.

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 LEGAL PLEADINGS

I. JOHTO’S REGULATION OF WET MARKETS WERE IN CONSONANCE WITH

OBLIGATIONS UNDER INTERNATIONAL LAW.

Johto cannot be held liable for the ecological damage caused [1.1.]. While the Muk-15 virus
originated in a wet market at Campos, Johto’s response to the virus did not violate international
obligations [1.2.]. Therefore, Johto is not liable for the damage caused due to the virus.

1.1. The ecological damage caused cannot be attributed to Johto.

The Republic of Kanto relies on a report, to claim that Kanto failed to regulate its wet markets.
The report is unsubstantiated and must be treated with caution by this court [A.]. Even if this
Court finds that the report is reliable, Johto cannot be held responsible for the illegal sourcing of
Pidgeys by Plasma Labs and, its trade in the wet markets [B.].

A. The report claiming that Johto has failed to regulate wet markets and the digital
evidence, is biased and inconclusive.

The ICJ has held that the party that brings a claim must show conclusive evidence of a “high
level of certainty appropriate to the allegation made.” 1 Kanto relies on media reports and digital
evidence to show that illegal trade of Pidgeys took place in the wet markets of Johto. 2 This Court
has previously dealt with media reports with a certain amount of caution. 3 In the Nicaragua case4
and the Genocide case,5 this Court described media reports as “secondary sources” and stated
that they were of corroboratory nature, unless they are widespread. Even if the reports are
widespread, this Court has found that these reports are likely to be based on one source. 6 The
Goldenrod Daily, is a biased source as its journalists are based Kanto. Furthermore, there is no
supplementary evidence to substantiate the report by the media and it is the only report on the

1 Application of Convention on Prevention and Punishment of Crime of Genocide (Bosnia & Herzegovina v. Serbia
& Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶208 (Feb. 2007) [hereinafter Genocide].
2 SOF. ¶30.
3 A. ZIMMERMANN ET AL., THE STATUTE OF THE INTERNATIONAL COURT OF JUSTICE – A COMMENTARY (2 nd ed.,
2005).
4 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.A.), Judgment, 1986 I.C.J. Rep.
14, ¶68 (June 1986) [hereinafter Armed Activities in Nicaragua].
5 Genocide, supra note 1, at ¶357.
6 Armed Activities in the Territory of Congo (Democratic Republic of Congo v. Uganda), Judgement, 2005 I.C.J.
Rep. 168 (Dec. 2005) [hereinafter Armed Activities in Congo].

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basis of which Kanto makes further claims. The probative weakness of the reports indicates that
Kanto has not discharged its burden of proof and this court should take a prima facie cautious
approach while hearing Kanto’s claims.7

B. Even if the report is admissible, Johto cannot be held liable for the illegal trade of
species and Plasma Labs actions of sourcing Pidgeys from the wet markets.

CITES requires that State parties enact national legislations and implement them to ensure that
all supply and demand sources of illegal trade of species are eliminated. 8 Johto enacted laws to
ensure that the illegal trade of species did not take place and they were in accordance with the
minimum standard prescribed by international law. 9 Therefore, responsibility cannot be
attributed to the State of Johto for the illegal smuggling and trade of Pidgeys in its territory [a.]
and the use of the bird by Plasma Labs [b.].

a. Johto cannot be held responsible for illegal trade of species in its territory.

The responsibility of a State for an internationally wrongful act only arises when it can be
attributed to a State organ,10 or when governmental authority was exercised by a person. 11 The
persons trading Pidgeys in the wet markets of Johto were not exercising governmental authority
in any manner. The legislations of the State of Johto ensured, to best effect that the such offences
were deterred. Despite such legislations, illegal hunting and poaching continued. Such activities
cannot be attributed to the State of Johto and it cannot be held liable for the actions of those
involved in the poaching of animals. Moreover, hunting and other such activities can take place
within ecological limits.12 Kanto has failed to show that the hunting and smuggling of Pidgeys
have contributed to the detriment of the species.

b. The illegal sourcing of Pidgeys by Plasma Labs cannot be attributed to Johto.

7 Construction of a Road in Costa Rica along the San Juan River (Costa Rica v. Nicaragua), Judgment, 2015 I.C.J
Rep. 665, ¶176 (Dec. 2015).
8 Declaration, London Conference on Illegal Wildlife Trade to Convention on the International Trade in
Endangered Species on Wild Fauna and Flora, Mar. 3, 1973, 993 U.N.T.S. 243 (Feb. 12-13, 2014).
9 Clarifications to the SOF.
10 Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, G.A. Res. 56/83,
2002, art.4 (Jan. 28, 2002) [hereinafter ARSIWA].
11Id. art. 5.
12 CMS CoP, Res. 11.2 Strategic Plan for Migratory Species 2015-2023, UNEP/CMS/COP11/REPORT Annex
VIII, (Nov. 4-9, 2014).

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A journalist produced a video showing the sourcing of Pidgey from wet markets. Even if the
authenticity of such a video were established by Kanto; Johto cannot be held liable for the acts.

For state responsibility to be invoked in international law, a corporate entity must exercise
governmental authority.13 The burden is on Kanto to show that the government of Johto
exercised effective control14 over Plasma Labs.15 The mere establishment of an entity by a State
does not establish its responsibility for the conduct of that entity at a later stage. 16

Johto did not exercise effective control17 over Plasma Labs for two reasons. First, Platinum
Group. is a private entity that operates for commercial gains. Second, Plasma Labs in its
statement, made reference to Platinum’s endeavors to protect cultural beliefs of the Brocks. No
reference was made to Johto Biotech or the government of Johto. 18 This is indicative of
Platinum’s control of Plasma Labs. Hence, Johto cannot be held liable for the ecological damage
caused.

II. JOHTO’S RESPONSE TO THE MUK-15 OUTBREAK IS IN CONSONANCE WITH

INTERNATIONAL LAW.

Johto followed appropriate procedure under the International Health Regulations [hereinafter
referred to as IHR] upon assessment of public health information. 19 Under the IHR, Johto was
obligated to inform the WHO within 24 hours of assessment of public health information in case
of an event that may cause a PHEIC. 20 Annex 2 of the IHR provides for a Decision Instrument
For The Assessment And Notification of Events That May Constitute A Public Health
Emergency of International Concern. it is in accordance with this Annex 2 that the Government
of Johto has acted.

13 ARSIWA, supra note 10, art. 8 at ¶6.

14 Armed Activities in Nicaragua, supra note 4.
15 ARSIWA, supra note 10, art.8.
16 Antonio Cassese, The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia,
18 EUR. J. INT. LAW 649 (2007).
17 Id.
18 SOF. ¶21.
19 WHO, International Health Regulations, Art. 5 (1), May 23, 2005, 2509 U.N.T.S. 79, Annex II [hereinafter
IHR].
20 Id., at art. 6
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The nature of the disease Muk-15 was not clear until 15 th January 2016, when a death was
reported that was found to be the result of the Muk Virus. Immediately following this report, the
Government of Johto began its assessment in accordance with the IHR to determine whether the
Muk-15 virus could be a public health emergency of international concern. Johto imposed the
necessary health measures in New Bark Town, including implementing a lockdown in the town
as well as halting all transport to the region.

The Government of Johto informed the WHO of the public health emergency, after thorough and
clear assessment of the public health information as prescribed by Article 6 of the IHR 21. While it
was not notified to the WHO within 24 hours after the report of the death caused by the virus,
Article 6 of the IHR requires that State Parties must notify the WHO within 24 hours of
assessment of public health information. To that extent, Johto has acted in consonance with the
Regulations. Upon such communication of information Johto shared detailed information with
the WHO and coordinated with them22.

The Government of Johto has, in accordance with international law, acted to the best of its ability
to mitigate the effects of the Muk-15 virus. The measures taken by Johto were fully in
consonance with the IHR. Therefore, the Government of Johto has not violated international law
in its response to the Muk-15 outbreak.

III. THE PATENT FOR DITTRIN IS VALID UNDER INTERNATIONAL LAW.

2.1. Taking of Pidgeots for the manufacture of Dittrin is valid.

Taking of the Pidgeots was in consonance with CMS [A.] and CBD [B.]. Moreover, the
manufacturing process of Dittrin does not cause significant transboundary harm [C.].
Furthermore, using Pidgeots for making Dittrin which counters Muk-15 does not appropriate the
TK of Kantonese not does it cause loss of cultural heritage [D.]. Therefore, Johto is not obligated
to provide benefit sharing [E.].

A. Taking of Pidgeots does not violate CMS and CITES.

21 Id., at art. 6(1).

22 SOF. ¶12.
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Pidgeots is an endangered23 species listed under Appendix I of the CMS. CMS envisages
exceptional circumstances under which taking of Pidgeots by a Range State24 is allowed.25

a. Pidgeots was taken for scientific purposes.

CMS makes taking of a species permissible if done so for scientific purposes. There exists an
apparent lack of jurisprudence that defines what such scientific purposes are. However, relevant
explanation is found in “Whaling in the Antarctic”, where the Court iterated that a program’s
design and implementation are pertinent for determining the purpose of scientific research
undertaken.26

In this context, Plasma Labs was set-up with the aim of researching novel compounds and bio
actives. Subsequently, they discovered Ditto in the bone of the Pidgeots, which is now being
used to create Dittrin. Plasma Labs has not used any lethal method in extracting the compound
from the Pidgeots, pursuant to the wise use of the species. 27 Thus, the taking of the Pidgeots is
done in furtherance of the manufacturing Dittrin, which is an essential medicine in the context of
the Muk-15 outbreak. This falls in the ordinary interpretation of “scientific purposes”. 28
Moreover, the actions are in consonance with the objectives of CMS, while identifying the
scientific potential of the species.29

b. Extraordinary circumstances require the use of Pidgeots.

Under CMS, States are also permitted to take and utilise species if there exist extraordinary
circumstances. Under the convention, the term is given a non-exhaustive interpretation.
Moreover, the provisions of CMS are to be interpreted keeping the objective of the convention
i.e. recognizing the conservation is for “the good of the mankind”. 30 Additionally, Art.14 of
CITES permits the taking for the purpose of public health.

23 Convention on the Conservation of Migratory Species of Wild Animals, Art. 1(e), Jun. 6, 1979, 1651 U.N.T.S.
333 [hereinafter CMS]; SOF. ¶3.
24 Id. art. 1(h).
25 CMS, supra note 26, art. 3(5).
26 Whaling in the Antarctic (Australia v. Japan), Judgment, 2014 I.C.J. Rep. 216 (Mar. 2014).
27 SOF. ¶ 9,27.
28 Vienna Convention on the Law of Treaties, art. 31, Jan. 27, 1980, 1155 U.N.T.S. 331 [hereinafter VCLT].
29 Manila Declaration on Sustainable Development and Migratory Species, UNEP/CMS/Resolution 12.3 (2017).
30 CMS, supra note 26, Preamble.
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Therefore, the spread of a PHEIC caused by a virus against which humans have no natural
immunity clarifies as an extraordinary circumstance. 31 Moreover, the use of Pidgeots is to
develop Dittrin, which is the only effective medicine against Muk-15; is an essential medicine.
The effectiveness of Ditto against Muk-15 is unparalleled and there exist no alternatives other
than the use of Pidgeots.32 Therefore, Johto is justified in taking the species.

B. Johto complied with CBD.

One of the primary objectives of the Convention is to ensure the sustainable use 33 of biological
resources, such use is in furtherance of sovereign rights 34 of the States to use their own biological
resources.35 Therefore, Contracting Parties ought to use their biological resources keeping in
mind their sustainability.36 Moreover, the phrase “as far as possible and appropriate” as
mentioned in the Convention provides scope for the Contracting parties to have the discretion on
how they uphold their obligations.37 Furthermore, CBD obligates the Contracting Parties to
sustain viable populations of biological resources.38

Accordingly, the use of Pidgeots for scientific purposes and for making Dittrin is well within the
sovereign rights of Johto. Evidently, Johto has not been utilizing Pidgeots while subjecting it to
any lethal procedures. The extraction of Ditto is done in a non-lethal way, which ensures the
survival of Pidgeots.39 Thus, Johto has been using Pidgeots keeping in mind its sustainable use.

C. Manufacturing of Dittrin does not cause significant transboundary harm.

a. There has been no tangible loss of biodiversity.

31 Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment 1997 I.C.J Rep. 7 (Sept. 1997) [hereinafter
Nagymaros].
32 SOF. ¶19.
33 Convention on Biological Diversity art.2, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD].
34 Stockholm Declaration, Principle 21, 11 I.L.M. 1416; Rio Declaration on Environment and Development, June
14, 1992, Principle 2, 31 I.L.M. 874 [hereinafter Rio]; PATRICIA BIRNIE ET AL., INTERNATIONAL LAW AND THE
ENVIRONMENT 115 (3rd ed., 2009) [hereinafter BIRNIE].
35 CBD, supra note 36.
36 Id., arts.5,8.
37 Guilman & Lefkowitz, The Convention on Biological Diversity : Hard Won Global Achievement 3 YB INT’L L.
42 (1993), available at https://www.mpil.de/files/pdf2/mpunyb_wolfrum_matz_4.pdf,
38 CBD, supra note 36 art. 8(d).
39 SOF. ¶27.
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Johto is obligated to ensure that no action within its jurisdiction causes harm to the environment
or to common spaces of any other State.40 Such actions ought to be causally related to the harm
so inflicted upon the other State. Moreover, such harm to be considered a course for legal action
ought to attain a certain degree of severity.41

Currently, Johto has been using Pidgeots is a non-lethal way. Thus, ensuring its sustainability.
The allegation of the environmental harm caused to the Marsh wetlands, is mere speculative and
conditional. Johto has not caused significant decrease in the population of Pidgeots, which would
effectively cause environmental harm.42

b. Spread of the virus cannot be attributed to Johto.

Although the virus originated in Johto, there exists no evidence that Johto deliberately caused the
spread of the virus to Kanto.43 Johto wet markets primarily trade in Pidgeys and Pidgeots eggs,
neither of which are home to the virus. Moreover, citizens of Kanto with no travel history to
Johto or contact history with any returning passenger from Johto also contracted the virus.
Therefore, no evidence exists to attribute liability of Johto to the economic damage and loss of
human life caused in Kanto.

D. Johto did not appropriate TK of Kantonese or cause loss of cultural heritage.

a. TK of Kantonese has not been appropriated.

It is undisputed that Kantonese have been consuming Pidgeots for centuries, moreover using
them for medical purposes too. However, Kantonese have never used Pidgeots bones to counter
symptoms of Muk-15. Traditionally, Kantonese have used Pidgeots bones for strength.44

Moreover, Dittrin is derived from Ditto which is a separately isolated compound. Dittrin is made
by subjecting the extracted compound to several procedures to enhance the medicial properties
of Ditto to effectively counter the Muk Virus virus. 45 Kantonese have never used Pidgeots to

40 Rio, supra note 37; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226
(July 1996); BIRNIE, supra note 27 at 138.
41 XUE HANQUIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003); Corfu Channel (United Kingdom
of Great Britain and Northern Ireland v. Albania), Merits, 1949 I.C.J. Rep. 4 (April 1949).
42 SOF. ¶27.
43 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. Rep. 14, ¶52 (April 2010).
44 SOF. ¶4.
45 Id. at ¶ 19 & 21.
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combat the Muk Virus virus. The spread of the virus was immediate and Kantonese did not know
about the compound Ditto nor did they know about its ability to fight the Muk Virus virus.
Therefore, Johto has not appropriated the TK of Kantonese.

b. Even if Kantonese’s rights over natural resources are applicable, Johto is obligated to
only consult them.

Pidgeots is a shared resource between Kanto and Johto. Therefore, Kantonese do not have an
exclusive right over the species. Under ILO Convention No.169 Johto is required to merely
consult indigenous people affected by its activities.46 The method of such consultation is flexible
and ought to be done in good faith.47

Following its obligations, Johto duly published the patent application of Dittrin, to invite dissent
and objections to the patent.48 The view of the Kantonese was taken into consideration as all
procedures set under TRIPS were followed. Moreover, the opinion of the Kantonese were taken
into consideration while suggesting the use of lethal means of extracting Ditto from Pidgeys and
Pidgeots eggs.49 Additionally, even indigenous population have the onus to act in good faith and
have no right of denial, when the other party is acting in furtherance of legitimate public
interest.50

c. Kanto cannot bring a claim to invoke Johto’s duty to uphold rights of citizens of Kanto.

Kanto ought to have a legal standing so as to invoke the responsibility of Johto. 51 As human
rights obligations are owed to individuals; Kanto lacks the standing to claim such invocation as
an injured state.52 Human rights treaties govern the responsibility of States to uphold the rights of

46 International Covenant on Economic, Social and Cultural Rights, art. 15(2), Jan. 3, 1976, 993 U.N.T.S. 3
[hereinafter ICESR].
47 International Labour Organisation [ILO] Convention (No. 169) concerning Indigenous and Tribal Peoples in
Independent Countries, Sept. 5, 1991, Art.14, 1650 U.N.T.S. 383).
48 SOF. ¶19.
49 Id. at ¶27.
50 CESCR General Comment No.21, Right of Everyone to Take Part in Cultural Life, E/C.12/GC/21 at ¶61
(November 2009).
51 JAMES CRAWFORD ET AL., THE LAW OF INTERNATIONAL RESPONSIBILITY (2nd ed., 2010).
52 Id.
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individuals, this status is pertaining to a narrow category of obligations. 53 And cultural rights are
not obligations owed to the international community at large.

d. Johto is not obligated to protect the cultural rights of Kantonese.

Under ICCPR and ICESCR, State’s obligations to individuals are limited to those in their
territory or within their jurisdiction. 54 Such jurisdiction is territorial and applies extra-territorially
exceptionally.55 Such exceptional circumstances have precedentially been when State’s agents
violate such rights abroad, or when they have control over the other State’s territory.56

Accordingly, Johto has been using a biological resource which belongs to the State, within its
territory.57 Therefore, it does not invoke extra-territorial application of the treaties.

Right to cultural life is enshrined under the ICESCR. 58 While Kanto has the responsibility
to fulfil this right, Johto is required to take appropriate steps in the context of
Kantonese.59 Such requirement of taking appropriate steps is in view of ensuring other rights too.
Moreover, the right to cultural life can be subjected to limitations.60

Accordingly, Johto is required to consider the right to healthcare and essential medicines of its
own citizens too.61 Dittrin is an essential medicine to combat the Muk-15 outbreak not only in
Johto but Kanto as well. For this purpose, utilisation of Pidgeots is a necessity. The use of

53 Case Concerning Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Judgment, 1970
I.C.J. Rep. 3 (Feb. 1970).
54 International Covenant on Civil and Political Rights art.2(1), Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter
ICCPR]; ICESR, supra note 49.
55 Joseph Sinchak, The Extraterritorial Application of Human Rights Treaties: Al-Skeini et al. v. United Kingdom,
3 PACE INT'L L . REV 416 (2011).
56 ILO Convention No.169, Convention Concerning Indigenous and Tribal Peoples in Independent Countries
(September 1991).
57 Rio, supra note 37.
58 ICESR, supra note 49, art. 15(1)(a).
59 CESCR General Comment No.21, Right of Everyone to Take Part in Cultural Life, E/C.12/GC/21 (November
2009).
60 ICCPR, supra note 57, art 18(3); ICESCR, art 4.
61 Thomas Pogge, Montreal Statement on the Human Right to Essential Medicines, 16 CAMBRIDGE Q.
HEALTHCARE ETHICS 97, 107 (2007).

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Pidgeots by Johto is justified as it serves the purpose of public health 62 and promotes general
welfare.63 Lastly, the limitation if imposed by the utilization of Pidgeots is necessary.64

E. Johto is not obligated to provide access to benefit sharing.

a. CBD does not compel Johto to provide benefit sharing.

Under article 8(j) of CBD, states are only to act ‘subject to their national legislation’ and further
to ‘encourage’ benefit sharing.65 The provision does not impose compulsory benefit sharing on
Contracting Parties.66 Therefore, Johto is not obligated to provide any form of benefit sharing to
Kantonese or Kanto.

b. Johto is not obligated to provide benefit sharing pursuant to Nagoya Protocol.

The Nagoya Protocol directs contracting parties to provide benefit sharing arising out of
utilization of genetic resources67 that are held by indigenous communities.68 Furthermore, it
provides for such benefit sharing arising out of Contracting Parties accessing the TK related to
concerned genetic resources.69 However, Knot has a sovereign right over the utilization of
Pidgeots. It is not exclusive genetic resource held by Kantonese. Moreover, as established under
D. [c.], Johto has not utilized the TK of Kantonese. Therefore, Johto is not obligated to provide
access to benefit sharing to Kantonese or Kanto.

IV. KANTO’S EXPROPRIATION ORDINANCE VIOLATES INTERNATIONAL LAW.

Kanto’s Ordinance expropriating the assets of the Platinum violates the CIL on investment and
therefore, its treaty obligations [3.1.]. Assuming, arguendo, that the expropriation was taken as a

62 The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights, 28th September, 1984, E/CN.4/1985/4 [hereinafter Siracusa].
63 ICESCR, supra note 49, art. 4.
64 Siracusa, supra note 65.
65 VCLT, supra note 31, art. 31.
66 BIRNIE, supra note 37.
67 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from
their Utilization to the Convention on Biological Diversity art.2(c), October 29, 2010, UNEP/CBD/COP/DEC/X/1
[hereinafter Nagoya].
68 CBD, supra note 26 art.5(2); Aphrodite Smagadi, Analysis of the Objective of the Convention on Biological
Diversity: Their Interrelation and Implementation Guidance for Access and Benefit Sharing, 31 COLUMBIA J.
ENVIRON. LAW 243 (2006).
69 Nagoya, supra note 70, arts. 1, 7, 12.
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countermeasure, it was not a valid countermeasure and constitutes an internationally wrongful
act [3.2.].

3.1. The expropriation of the assets of the Platinum contravenes the CIL on investment
and therefore, violates the TOG.

The TOG requires both State parties to accord investments with treatment in consonance with the
CIL on investment.70 International law recognizes the rights of States to have permanent
sovereignty over their wealth.71 Expropriation of foreign property is legitimate under
international law72 and the host State’s right to expropriate 73 has been recognized in principle by
international law.74

For an expropriation to be valid under international law, it must fulfil certain fundamental
requirements,75 each of which must be met.76 The expropriation of the assets of the Platinum does
not meet the criteria of a valid expropriation [A.]. The selective default on contractual payments,
violates the CIL on investment as well as treaty obligations [B.].

A. The expropriation does not meet the criteria prescribed by the CIL on investment.

State parties, under the CIL on investment are obliged to provide fair and equitable treatment to
investors in their jurisdiction without prejudice to disputes that may arise with the home State of
the investor.77 For an expropriation to be valid under the CIL on investment, it must be taken in
furtherance of a legitimate state aim, it must not be arbitrary or discriminatory, it must be in
accordance with the due process of law and it must be compensated fairly and adequately. 78 The
expropriation of the assets of the Platinum and a selective default on contractual payments was
arbitrary [a.], discriminatory [b.], and was not compensated fairly and adequately [c.].
70 The Treaty of Gardevoir, Art. XIV (signed 15th January, 1954) [hereinafter TOG].
71 G.A. Res.3281, Charter on Economic Rights and Duties of States (Dec.12, 1974) [hereinafter CERDS].
72 MALCOLM N SHAW, INTERNATIONAL LAW 828 (6th ed., 2008) [hereinafter SHAW].
73 CERDS, supra note 74, art.2(c).
74 R. DOLZER AND C. SCHREUER, PRINCIPLES OF INTERNATIONAL INVESTMENT LAW 89 (2nd ed., 2012) [hereinafter
DOLZER AND SCREUER].
75 Id. 91.
76 Azurix Corporation v. Argentine Republic, ICSID Case No. ARB/01/12, Award,
https://www.italaw.com/sites/default/files/case-documents/ita0060.pdf [hereinafter Azurix]; DOLZER AND
SCREUER, supra note 69.
77 J. CRAWFORD, BROWNLIE'S PRINCIPLES OF PUBLIC INTERNATIONAL LAW (8th ed. 2012) [hereinafter
BROWNLIE].
78 SHAW, supra note 75.
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a. The expropriation is arbitrary in nature and disregards the due process of law.

The ICJ has defined an arbitrary measure as one that is opposed to the rule of law and surprises a
sense of judicial propriety.79 This definition has been approved by tribunals as well. 80 Kanto
willfully disregarded the due process81 of law and acted in bad faith.82 For an expropriation to
fulfil the due process requirement, it must have a legal basis, and take place through a process
established beforehand.83 In ADC Affiliate Ltd. v. Hungary, the tribunal stated that there were
certain basic substantive and due process requirements; some of which include, reasonable
advance notice, a fair hearing and an unbiased and independent adjudicator, none of which were
granted to Platinum.84 The ordinance expropriating the assets of Platinum was promulgated
immediately after Mr. Khunx’s speech with no formal notice. 85 Furthermore, certain BITs require
impartial adjudicators to provide for the valuation of the assets of an investor. 86 The executive of
Kanto settled claims of compensation on its own, not on a legal basis but on its discretion and
prejudice87, thereby violating the due process of law.

b. The expropriation is discriminatory in nature.

The expropriation of all of the subsidiaries of the Platinum is discriminatory in nature as the
Platinum operates in several sectors ranging from pharmaceuticals to electronics. 88 All outlets of
the Platinum in Kanto were expropriated, regardless of the sector in which they operate. 89 There
is no reasonable justification for expropriating all the subsidiaries of the Platinum and ignoring
other investors who operate in the same sectors. Such an action, is discriminatory in nature as the
other investors are similarly placed.90 The discriminatory intent is further substantiated by the

79 Elettronica Siccula S.p.A (ELSI) (U.S.A. v. Italy), Judgment, 1989 I.C.J Rep. 15 (July 1989) [hereinafter ELSI].
80 Azurix, supra note 79 at ¶385.
81 ELSI, supra note 82.
82 DOLZER AND SCHREUER, supra note 77.
83 EXPROPRIATION: A SEQUEL, available at https://unctad.org/en/Docs/unctaddiaeia2011d7_en.pdf (UNCTAD ed.,
2012).
84 ADC Affiliate Limited and ADC & ADMC Management Limited v. The Republic of Hungary, ICSID Case No.
ARB/03/16, Award, ¶435, https://www.italaw.com/cases/41.
85 SOF. ¶32.
86 Bilateral Investment Treaty, Austria-Mexico, Art.4(3), June 29, 1998.
87C. SCHREUER, Protection Against Arbitrary or Discriminatory Measures, available at
https://www.univie.ac.at/intlaw/94.pdf (accessed Sept. 24th, 2020).
88 SOF. ¶9.
89 SOF. ¶31, 32.
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 91
racial remarks made by Prime Minister, Mr. Khunx, indicating discriminatory intent on the
basis of nationality, which is sufficient to constitute a discriminatory measure.92

c. Kanto is obligated to compensate Johto fairly and adequately.

The duty to compensate an investor fairly and adequately is considered a rule of CIL and has
been incorporated in several BITs.93 Fair and adequate compensation, by practice has been the
market value of the property94 that has been nationalized by the host State. 95 While the ordinance
did provide a valuation of the assets of the Platinum, it also took into account the satisfaction of
other claims of losses, which is arbitrary.

B. Default on contractual payments is a measure tantamount to expropriation.

The Republic of Kanto, promulgated an ordinance which provided for the selective default on
contractual payments for previous procurements from the Platinum. 96 This court has the
jurisdiction to decide on claims for contracts as it falls within the TOG, and involves the
interpretation of a Treaty.97 The contracts between Kanto and the Platinum constituted an
investment under the TOG [a.], and the default on contractual payments therefore constituted an
unlawful expropriation [b.].

a. The contracts fall within the definition of investment provided by the TOG.

The TOG provides that an investment means every asset an entity owns or controls, directly or
indirectly, having characteristics such as commitment of resources, capital, or other, the potential
for gain or profit, or risk assumption.98 Contracts for goods and services fall under the definition
of investment under the TOG as there was a commitment of resources when the Platinum entered

90 Nykomb Synergetics Technology Holding AB v. The Republic of Latvia, Award,

https://www.italaw.com/cases/759.
91 SOF. ¶15.
92 LG&E Energy Corp., LG&E Capital Corp., and LG&E International, Inc. v. Argentine Republic, ICSID Case
No. ARB/02/1, Award, https://www.italaw.com/cases/621 (July 2007).
93 Saluka Investments B.V. v. The Czech Republic, UNCITRAL Partial Award , https://www.italaw.com/cases/961
(March 2006).
94 Factory at Chorzów (Ger v. Pol), Merits, 1927 P.C.I.J. Series A No. 9 21 (July 1927) [hereinafter Chorzów
Factory].
95 MUTHUCUMARASWAMY SORNARAJAH, THE INTERNATIONAL LAW ON FOREIGN INVESTMENT (3rd ed. 2010).
96 SOF ¶31(d) & 32.
97 Illinois Railroad Co. (U.S.A.) v. United Mexican States, 1926 R.I.A.A. 21 (March 1926).
98 TOG, supra note 73, art. XIV.
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into contracts with Kanto. The Platinum had performed its obligations under these contracts and
did not get payments for services it had already rendered.99

b. Breach of contracts by Kanto constitutes an unlawful expropriation.

CIL recognizes contracts as property since investors derive vested rights from them. 100 The
breach of contract by a State towards a foreign alien is determined by the capacity in which the
State was acting while entering into the contract. 101 A breach of contract by a State vis-à-vis an
investor occurs when specific contract rights as a whole are repudiated. 102 In this particular case,
Kanto did not breach contracts in its commercial capacity, but did so through its public authority.
The expropriation of contractual rights occurred the moment Kanto promulgated an Ordinance to
the effect of defaulting on contractual payments. 103 This Court104 and certain tribunals105 have
found that intangible property such as contracts can be the subject of nationalization. The
expropriation of Platinum’s contractual rights was arbitrary, did not serve a public purpose and
was not compensated by Kanto. Therefore, Kanto violated CIL and is obligated to pay
compensation for the loss it caused.

3.2. The expropriation is not a valid countermeasure and constitutes an internationally

wrongful act.

Assuming, arguendo, that the expropriation was taken as a countermeasure, it does not meet the
criteria prescribed by CIL to be lawful [A.]. Hence, Johto is entitled to an order of restitution
[B.].

A. The expropriation does not fulfil the criteria of a valid countermeasure under CIL.

CIL recognizes the right of a State to take countermeasures against the wrongful acts of another
State. Countermeasures constitute a special branch of international law 106 that allows states to
99 SOF. ¶.32.
100 F. A. Mann, State Contracts and State Responsibility, 54 AM. J. INT. LAW 572 (1960).
101 Chittharanjan F. Amerasinghe, State Breaches of Contracts with Aliens and International Law, 58 AM. J. INT.
LAW 881–913 (1964).
102 Siemens A.G. v. The Argentine Republic, ICSID Case No. ARB/02/8, Award, ¶236,
https://www.italaw.com/cases/1026 (Sep. 24, 2020).
103 Jan Schokkaert & Yvon Heckscher, Investment Contracts between Sovereign States and Private Companies -
Link between BITS and State Contracts, 11 J. WORLD INVEST. TRADE 903 (2010).
104 Chorzów Factory, supra note 97.
105 Norwegian Shipowners’ claims (Norway v. USA), Award, 1922 R.I.A.A. 307 (Oct. 1922).
106 ARSIWA, supra note 10, art.21.
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take the measure of “self-help” for the purposes of cessation or restitution. 107 For a
countermeasure to be lawful under CIL, it must be preceded by an internationally wrongful act
[a.] and must be taken against the State that breached the international obligation [b.].108

a. The countermeasure was not preceded by an internationally wrongful act.

This court in the has stated that a countermeasure must be preceded by an internationally
wrongful act for it to be valid.109 This has been codified by the ILC in their Draft Articles on
Responsibility of States for Internationally Wrongful Acts 110 as reflective of CIL.111 Since
countermeasures are unilateral actions, the State that takes a countermeasure does so at its own
peril; if its judgment is found to be wrong, responsibility may be attributed to it for an
internationally wrongful act.112 Johto did not violate its obligations under international law,
therefore, the expropriation was not preceded by an internationally wrongful act. Hence, Kanto’s
measure constitutes an internationally wrongful act.

b. The countermeasure was not directed at Johto.

CIL prescribes that countermeasures must be directed at State parties. 113 State parties are
obligated to ensure that third parties who have individual rights are not affected by the
countermeasure.114 Investors are considered to be the beneficiaries115 of treaties that guarantee
protection to investments.116 Countermeasures cannot be taken against investors of a State to
ensure compliance with international obligations. This position of law has been adopted by the
Corn Products International117 and the Archer Daniels Midlands Co.118 tribunals when they

107 BROWNLIE, supra note 78.

108 ARSIWA, supra note 10, art.49.
109 Id.
110 ARSIWA, supra note 10, art.49.
111 Id. at ¶1.
112 Id.
113 Nagymaros, supra note 25.
114ARSIWA, supra note 10, p.130 at ¶5.
115 Anthea Roberts, Triangular Treaties: The Extent and Limits of Investment Treaty Rights, 56 HARV. INT. LAW J.
353 (2015).
116 Junianto James Losari & Michael Ewing-Chow, A Clash of Treaties: The Lawfulness of Countermeasures in
International Trade Law and International Investment Law, 16 J. WORLD INVEST. TRADE 274 (2015).
117 Corn Products International, Inc. v. United Mexican States, ICSID Case No. ARB (AF)/04/1, Decision on
Responsibility, https://www.italaw.com/cases/345 (Jan. 2008).
118 Archer Daniels Midland Company and Tate & Lyle Ingredients Americas, Inc. v. The United Mexican States,
ICSID Case No. ARB (AF)/04/5, Award, https://www.italaw.com/cases/91 (Nov. 2007).

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rejected Mexico’s defence of taking measures against the investor, to ensure that the home State
complies with international obligations.

In the case at hand, Kanto, as a countermeasure expropriated the biggest contributor to Johto’s
119
economy, the Platinum. Since the Platinum is an investor, incorporated in Johto, it is a
beneficiary to the TOG. The expropriation Ordinance was directed at a third party that had
individual rights and is therefore, unlawful.

B. Johto is entitled to an order of restitution.

Countermeasures are pacific unilateral actions of States against the wrongful act of another
State.120 Since such acts are unilateral in nature, the States take such measures at their own risk,
and will be subject to the CIL on State responsibility if their assessment of the situation was
wrong and the State against which the countermeasure was taken, did not breach its international
obligations.121 In this case, the measures taken by Kanto were internationally wrongful [a.] and
Kanto must make reparation for its wrongful act.

a. The measure constituted an internationally wrongful act.

An act, or omission of a State is internationally wrongful, when it breaches international

obligations and can be attributed to the State. 122 Once the responsibility of a State is established,
reparation for any material or moral damage becomes its duty. 123 The expropriation of the assets
of the Platinum and a selective default on contractual payments constituted an internationally
wrongful act, as it violates obligations under the TOG, and can be attributed to the executive of
the government of Kanto.124 Therefore, Kanto is obligated to make reparations for the damage
caused.

b. Kanto must make reparations for its wrongful actions.

119SOF. ¶9.
120 CRAWFORD, supra note 53.
121 Interpretation of Air Services Transport Agreement (U.S.A. v. France), Award, 1963 R.I.A.A. 5 (Dec. 1963).
122 ARSIWA, supra note 10, art.2.
123 Id., art.31.
124 Id., art.4.
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The remedy for wrongful acts under international law must wipe out all its consequences. 125 This
court126 and its predecessor, the PCIJ127, have stated that the remedy for an internationally
wrongful act is generally restitutio in integrum unless, the court finds that an order of restitution
will cause one party to gain significantly more than another. The ILC has acknowledged that this
principle forms a part of custom.128 Kanto is obligated to restore the property 129 and honour the
contracts it had with the Platinum as these remedies fall well within the threshold of “material
impossibility” prescribed by the ILC.130

PRAYER FOR RELIEF

Wherefore in light of the issues raised, authorities cited and arguments advanced, the State of
Johto respectfully requests this Court to adjudge and declare that:

1) Johto’s response to the Muk-15 outbreak was in consonance with international law
obligations.

125 Chorzów Factory, supra note 96.

126 United States Diplomatic and Consular Staff in Tehran (U.S.A. v. Iran), Judgment, 1980 I.C.J Rep.3 (May
1980).
127 Chorzów Factory, supra note 95.
128 ARSIWA, supra note 10, art.35.
129 ARSIWA, supra note 10.
130 ARSIWA, supra note 10, art.35(a).
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 2) The grant of the patent on Dittrin does not violate international law nor does it
appropriate the traditional knowledge of Kantonese, and is therefore valid.
3) Johto is not obligated to provide access to benefit sharing to Kantonese.
4) Kanto’s expropriation ordinance is violative of international law.

Therefore, it is humbly prayed for the Hon’ble Court to pass appropriate directions and grant an
order of restitution.

(Respectfully Submitted)

Agents on behalf of the State of Johto.

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