21A

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THE INTERNATIONAL COURT OF JUSTICE PB-21
AT THE PEACE PALACE
THE HAGUE, THE NETHERLANDS
QUESTIONS RELATING TO
THE CONSERVATION OF THE HIGH SEAS OF SONUMALIA
&
THE PROTECTION OF SAMEENA
(STATE OF RIVERDALE/STATE OF AVALON)
STATE OF AVALON
(APPLICANT)
V.
STATE OF RIVERDALE
(RESPONDENT)
MEMORIAL ON BEHALF OF THE
APPLICANT
-TABLE OF CONTENTS-
TABLE O F CONTENTS
TABLE OF CONTENTS .....................................................................................................I
LIST OF ABBREVIATIONS ........................................................................................... IV
TABLE OF AUTHORITIES ............................................................................................. V
STATEMENT OF JURISDICTION ................................................................................. X
STATEMENT OF FACTS ............................................................................................... XI
STATEMENT OF ISSUES ............................................................................................ XIV
SUMMARY OF ARGUMENTS ......................................................................................XV
PLEADINGS ....................................................................................................................... 1
I. WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS THE

JURISDICTION OVER THE DISPUTE? ..................................................................... 1
A. JURISDICTION OF INTERNATIONAL COURT OF JUSTICE. ....................... 1
B. UNCLOS PREVAILS AS LEX SPECIALIS VIS-À-VIS CBD .............................. 2
C. BOTH THE PARTIES PREFER A DIFFERENT ORGANIZATION TO

SETTLE THE DISPUTE, SO ICJ LACKS JURISDICTION. ...................................... 3
D. CBD IS NOT APPLICABLE TO THE CURRENT DISPUTE. ............................. 4
E. POSSIBLE ALTERNATIVES FOR RESOLUTION OF THE DISPUTE

WITHIN UNCLOS. ...................................................................................................... 5
II. WHETHER THE LIABILITY WITH RESPECT TO THE MARINE

POLLUTION IS ATTRIBUTABLE TO THE STATE OF AVALON OR
RIVERDALE .................................................................................................................. 5
A. THE LIABILITY SHALL BE ATTRIBUTED IN VIEW OF THE POLLUTER’S

PAY PRINCIPLE ......................................................................................................... 5
B. OBSERVANCE OF STRICT LIABILITY IN VIEW OF ULTRA-HAZARDOUS

ACTIVITY .................................................................................................................... 6
C. COMPLIANCE WITH DUE DILIGENCE STANDARDS ................................... 7
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT II

-TABLE OF CONTENTS-
D. AVALON IS NOT LIABLE UNDER ANY OTHER CONVENTIONS ON

POLLUTION ................................................................................................................ 9
E. RIVERDALE VIOLATED EXPRESS PROVISIONS OF UNCLOS .................... 9
F. THE ATTRIBUTION OF LIABILITY UNDER CBD SHALL BE DONE

TOWARDS RIVERDALE .......................................................................................... 10
G. THAT RIVERDALE VIOLATED THE RIGHTS OF INDIGENOUS

COMMUNITIES ........................................................................................................ 11
H. THE UNDISCLOSED CHEMICAL IRIS DELIVERED BY RIVERDALE TO

THE ASP HAS CAUSED THE NEAR EXTINCTION OF SAMEENA: .................... 14
III. RIVERDALE SHALL BE LIABLE FOR THE ENVIRONMENTAL

MISHAPS CAUSED BY HER SOVEREIGN PROPERTY - THE PAYLOAD
CONTAINING CHEMICAL IRIS ............................................................................... 15
A. SPACE LAW FALLS WITHIN THE AMBIT OF CUSTOMARY

INTERNATIONAL LAW ........................................................................................... 15
B. THE DAMAGES CAUSED BY THE CRASH OF VK-14 FALLS UNDER THE

DEFINITION OF DAMAGE IN LIABILITY CONVENTION AND AVALON IS A
VICTIM STATE ......................................................................................................... 17
CONCLUSION AND PRAYER FOR RELIEF ................................................................. 2
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT III

-LIST OF ABBREVIATIONS-
LIS T OF ABBREVIATIONS
Abbreviations Full Forms
Draft Articles on Responsibiity for states for Internationally

ARISWA
Wrongful Acts
ASP Avalon Space Program
CBD Convention on Biological Diversity
CIL Customary International Law
COP Conference of Parties
EIA Environmental Impact Assessment
ICCPR International Covenant on Civil and Political Rights
ICJ International Court of Justice
ILC International Law Commission
PP Precautionary Principle
PPP Polluter’s Pay Principle
SDG Sustainable Development Goals
UN United Nations
UNCLOS United Nations Convention on the Law of the Seas
UNDRIPS United Nations Declaration on Rights of Indigenous People
ITLOS International Tribunal for the Law of the Sea
VCLT The Vienna Convention on the Law of Treaties
FAO Food and Agricultural Organisation
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT IV

-TABLE OF AUTHORITIES-
TABLE O F AUTH ORITIES
S T A T UT E S
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24
October 1945) 3 Bevans 1179 (ICJ Statute) art 36(2). ........................................................ 1
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24
October 1945) 3 Bevans 1179 (ICJ Statute). ...................................................................... 1
F A C T S HE ET
Moot Proposition, Annexure 1 .............................................................................................. 6
Moot proposition, Annexure 1. .............................................................................................. 6
Moot Proposition, Annexure 1............................................................................................. 17
Moot Proposition, Para 11 ..................................................................................................... 6
Moot Proposition, Para 12. .................................................................................................... 6
Moot Proposition, Para 13 ............................................................................................. 2, 4, 7
Moot Proposition, Para 14. .................................................................................................. 17
Moot Proposition, Para 15. .................................................................................................... 9
Moot Proposition, Para 16 ................................................................................................... 11
Moot Proposition, Para 17 ................................................................................................... 14
Moot Proposition, Para 9. ...................................................................................................... 7
.B OOKS
Francis Lyall and Paul B Larsen, Space Law (Ashgate 2007) .............................................. 15
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT V

Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Brill
1972) 136 ........................................................................................................................ 15
Stahl & Voigt, State Responsibility for Climate Change (Penguin 2008) 11 .......................... 7
Stephen J Dick, Remembering the Space Age (National Aeronautics and Space Administration,
Office of External Relations, History Division 2008). ...................................................... 15
Timo Koivurova, Introduction to International Environment law (OUP 2013) 1 ................... 7
Tol and Verheyen, State responsibility and compensation for Climate Change (OUP 2004)
114. ................................................................................................................................... 8
T R E A T IE S AND C ONV E NT I ON S
Convention for the protection of the marine environment of the North-east Atlantic (adopted
22 September 1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR
Convention). ..................................................................................................................... 9
Convention on Biological Diversity (adopted 05 June 1992, entered into force 29 December
1993) 1760 UNTS 79 (Biodiversity Convention) art 11 ..................................................... 3
1993) 1760 UNTS 79 (Biodiversity Convention) art 22(2). ............................................. 14
1993) 1760 UNTS 79 (Biodiversity Convention) art 27 ..................................................... 4
1993) 1760 UNTS 79 (Biodiversity Convention) art 5 ....................................................... 3
1993) 1760 UNTS 79 (Biodiversity Convention) art 8. ...................................................... 3
1993) 1760 UNTS 79 (Biodiversity Convention). ............................................................ 10
Convention on International Liability for Damage Caused by Space Objects (adopted 29 March
1972, entered into force 1 September 1972) 961 UNTS 187 (Liability Convention) art 2. 17
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT VI

Convention on Registration of Objects Launched into Outer Space (adopted 14 January 1975,
entered into force 15 September 1976) 1023 UNTS 15 (Registration Convention) art 1(1).
........................................................................................................................................ 17
........................................................................................................................................ 17
........................................................................................................................................ 18
entered into force 15 September 1976) 1023 UNTS 15 (Registration Convention). .......... 17
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
(adopted 13 November 1972, entered into force 30 August 1975) 1046 UNTS 120 (London
Dumping Convention). ...................................................................................................... 9
Declaration of the United Nations Conference on the Human Environment (adopted 16 June
1972, entered into force 16 June 1972) 11 ILM 1416 (Stockholm Declaration). ............... 10
FAO Guidelines (adopted 5 December 1995, entered into force 5 December 1995) 995 UNTS
6 (FAO Guidelines) art 6.8 .............................................................................................. 14
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 (ICCPR) art 1 ....................................................... 13
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 (ICCPR) art 1; International Covenant on Economic,
Social and Cultural Rights (adopted 16 December 1966, entered into force 3 March 1976)
993 UNTS 3 (ICESCR). .................................................................................................. 12
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 March 1976) 993 UNTS 3 (ICESCR) art 15(1)(a)............................. 13
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966,
entered into force 3 March 1976) 993 UNTS 3 (ICESCR). .............................................. 13
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT VII

Protocol Between the Government of Canada And the Government of The Union of Soviet
Socialist Republics [1978]. .............................................................................................. 16
Rio Declaration on Environment and Development (adopted 13 June 1992, entered into force
13 June 1992) 31 ILM 874 (Rio declaration). ............................................................ 10, 14
United Nations Convention on Law of the Seas (adopted 10 December 1982, entered into force
16 November 1994) 1833 UNTS 3 (UNCLOS Convention) art 18. ................................. 18
16 November 1994) 1833 UNTS 3 (UNCLOS Convention) art 192................................... 3
16 November 1994) 1833 UNTS 3 (UNCLOS Convention) art 194............................. 3, 15
16 November 1994) 1833 UNTS 3 (UNCLOS Convention) art 287(1)(a). ......................... 5
16 November 1994) 1833 UNTS 3 (UNCLOS Convention) art 287(5). ............................. 4
16 November 1994) 1833 UNTS 3 (UNCLOS Convention) art 3 ...................................... 4
16 November 1994) 1833 UNTS 3 (UNCLOS Convention). ....................................... 9, 10
United Nations Declaration on the Rights of Indigenous Peoples (adopted 12 October 2007,
entered into force 12 October 2007) A/61/L.67/Annex (UNDRIPS). ............................... 12
Vienna Convention on Law of Treaties (adopted 23 May 1969, entered into force 27 January
1980) 1155 UNTS 331 (VCLT) art 38 ............................................................................. 16
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT VIII

J OU R N A L A RT I CL E S
Alexander F Cohen, ‘Cosmos 954 and the International Law of Satellite Accidents’ [1984] YJI.
........................................................................................................................................ 17
Eilene Galloway, ‘Nuclear Powered Satellites: The U.S.S.R. Cosmos 954 and The Canadian
Claim’ [1989] CYIL ........................................................................................................ 16
Gordon R. Munro ‘On the Management of Shared Living Marine Resources’ (Thesis
University of British Columbia). ..................................................................................... 18
Guss W Weiss, ‘Life and Death of Kosmos’ (Central Intelligence Agency, 2008) ............... 16
Smith, State Responsibility and the Marine Environment (Oxford, 1988) 201........................ 6
L A W R E P ORT S
International Law Commission, Identification of customary international law Statement of the

Chair of the Drafting Committee (International Law Commission No 17, 2018). ............. 16
Seabed Activities Case (Merits) [2011] ITLOS Rep 10. ......................................................... 8
U.N. D OC U M EN T S
UN Doc. A/CN.4/428 (1990)................................................................................................. 8
UNDOC/GEN/N95/274/67 (2000). ..................................................................................... 14
UNGA res 1721 B (XVI) (7 March 1962). .......................................................................... 16
UNGA res 1721B (XVI) (4 May 1978). .............................................................................. 16
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT IX

-STATEMENT OF JURISDICTION-
STATEMENT O F JURISDICTION
.
IF THE COURT FINDS THAT IT HAS JURISDICTION OVER THE SUBJECT MATTER
OF THE DISPUTE, IT SHALL HAVE JURISDICTION OVER THE SETTLEMENT OF
THE MATTER AS PER THE PROVISIONS OF THE STATUE OF THE INTERNATIONAL
COURT OF JUSTICE, ART. 36(6), T.S. NO. 993 (1945). AND WOULD ADDRESS THE
CURRENT DISPUTE IN ACCORDANCE WITH THE PROCEDURE ENSHRINED
UNDER ART. 40 OF THE ICJ STATUTE.
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT X

-STATEMENT OF FACTS-
STATEMENT O F FACTS
AVALON IS A DIVERSE DEMOCRATIC COUNTRY WITH A DEVELOPING ECONOMY. ITS

NATIONAL SPACE AGENCY, AVALON SPACE PROGRAM HAS BEEN A LARGE CONTRIBUTOR TO
THE SAME AND IS RECOGNISED AS ONE OF THE BEST SPACE AGENCIES IN THE WORLD.
RIVERDALE IS ONE OF THE MOST DEVELOPED COUNTRIES, POSSESSING THE MOST ADVANCED
MILITARY PROGRAM IN THE WORLD AND ALSO BOASTS OF A VERY STRONG ECONOMY.
AVALON AND RIVERDALE HAVE CONSISTENTLY MAINTAINED FRIENDLY RELATIONS
INCLUDING TRADE. RIVERDALE IS A HIGHLY CARBON DEPENDENT ECONOMY AND ALSO IS A

LEADING CONSUMER OF PLASTIC. ONE OF THE WASTE DISCHARGES OF THEIR INDUSTRIES ARE
CHEMICAL ‘IRIS’, A HIGHLY TOXIC SUBSTANCE WHICH CANNOT BE DISPOSED EASILY, ON
LAND OR THE SEA. FOR YEARS, RIVERDALE HAS BEEN EXPORTING PLASTIC TO DEVELOPING
COUNTRIES TO BE RECYCLED. RIVERDALE HAS BEEN HIGHLY CRITICISED FOR THE UTTER
DISREGARD WITH WHICH IT EXPORTED PLASTIC WASTE WITHOUT ANY CONCERN OVER
WHETHER THE RECEIVING COUNTRIES HAD THE KNOW-HOW TO DISPOSE THE PLASTIC WASTE,
WHAT THE COUNTRIES DID WITH THE RECYCLED PRODUCTS AND WASTE BY-PRODUCTS. IN
THE LAST TWO YEARS, THE IMPORTING COUNTRIES RESCINDED THEIR AGREEMENTS WITH
RIVERDALE AND THE PLASTIC WASTE WAS BEING SENT BACK. WITH NO CHOICE LEFT,
RIVERDALE OFFERED SEVERAL INCENTIVES TO SET UP PLASTIC WASTE RECYCLING
INDUSTRIES LOCALLY, LIKE TAX HOLIDAYS, FREE LANDS AND UNLIMITED ELECTRICITY
SUPPLY. VERY LITTLE OF THE WASTE THAT ARRIVED AT THESE UNITS WAS RECYCLED. MUCH
OF THE WASTE WAS DOWNCYCLED AND THE PLASTIC WASTE THAT COULD NOT BE RECYCLED
INTO REUSABLE PLASTIC WOULD BE COMPRESSED AND STORED IN DESERTED REGIONS OF
RIVERDALE. HOWEVER, VERY SOON, IT WAS REALISED THAT THE SAME PROCUREMENT
ISSUES THAT PLAGUED THE IRIS DISPOSAL PLAGUED THE PLASTIC WASTE INDUSTRY AS WELL.
ON 13 TH SEPTEMBER 2018, A REPRESENTATIVE OF THE GOVERNMENT OF AVALON FROM
THEIR SPACE DEPARTMENT TRAVELLED TO RIVERDALE, MET THEIR MINISTER FOR ENERGY
AND COMMUNICATION AND SIGNED A BILATERAL TREATY (ANNEXURE 1) WHICH
UNDERTOOK THAT THE ASP WOULD SEND A SERIES OF RIVERDALE’S SATELLITES AND
PAYLOADS, COMMERCIAL AND OTHERWISE INTO SPACE. ONE SUCH LAUNCH, TITLED VK14,
CONTAINING PAYLOADS FROM RIVERDALE ALONE, WAS SCHEDULED TO BE LAUNCHED ON
5TH MAY 2019. THE STATED CONTENTS OF THE PAYLOADS WERE THE PLASTIC WASTE THAT
COULD NOT BE RECYCLED OR DOWNCYCLED. SUCH PAYLOADS HAD BEEN SUCCESSFULLY
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT XI

LAUNCHED BY AVALON INTO THE HIGH EARTH ORBIT ON PREVIOUS OCCASIONS. PRO BONO
ENVIRO, AN INDEPENDENT INTERNATIONAL THINK-TANK PUBLISHED A REPORT STATING
THAT THE PAYLOADS THAT WERE BEING SENT ON VK14 CONTAINED NOT ONLY PLASTIC
WASTE BY-PRODUCTS, BUT ALSO CHEMICAL IRIS. AVALON DISREGARDED THESE
STATEMENTS AS RUMOURS. VK14 WAS LAUNCHED AS SCHEDULED. UNFORTUNATELY,

WITHIN SECONDS OF THE LAUNCH, TECHNICAL GLITCHES WERE NOTICED. THE LAUNCH
VEHICLE WAS SEVERELY SHAKEN BY ‘POGO OSCILLATIONS’. IN AN UNRELATED FLAW, A
RARE ELECTRICAL FAULT CAUSED THE LAUNCH’S FIRST STAGE ENGINE TO SHUT DOWN
PREMATURELY. NEVERTHELESS, AVALON MANAGED TO PARTIALLY RETRIEVE SITUATION BY
MANOEUVRING THE LAUNCH VEHICLE TO FALL INTO THE HIGH SEAS OF SONUMALIA, OFF THE
COAST OF AVALON AND NOT CRASH INTO LAND. IN THE DAYS FOLLOWING THE CRASH, THE
WATERS OF SONUMALIA WERE TURNING SLIMY AND FISHES WERE FOUND DEAD AND
FLOATING ALONG THE COASTS OF ALL NATIONS SHARING TERRITORIAL WATERS WITH
SONUMALIA SEA. PRO BONO ENVIRO SUBMITTED AN UNSPONSORED STUDY TO THE
SECRETARY-GENERAL OF THE UNITED NATIONS ON THE 5TH JUNE 2019. THE REPORT STATED
THAT THE VK14 HAS CAUSED MASSIVE AND PROBABLY IRREVERSIBLE DAMAGE TO THE
MARINE ENVIRONMENT, SUB-SOIL, SEABED AND ADJACENT SEDIMENTS IN THE HIGH SEA
AREA. BUT MOST IMPORTANTLY, SAMEENA, AN ENDANGERED MARINE SPECIES, NATIVE TO

THE COAST OF AVALON, WAS DYING IN LARGE NUMBERS POST-THE EVENTS.SAMEENA WAS
NOT ONLY ENDANGERED BUT ALSO A SPECIE, REVERED BY THE SOEL TRIBES LIVING ALONG
THE EAST COAST OF AVALON. THE REPORT RAISED GRAVE CONCERNS WITH RESPECT TO THE
SURVIVAL OF THE SAMEENA SPECIES AND URGED IUCN TO CHANGE SAMEENA’S STATUS
FROM ENDANGERED TO CRITICALLY ENDANGERED. RIVERDALE PRESSED THAT AVALON WAS
RESPONSIBLE FOR THE CONSEQUENCES OF THE FAILURE OF VK14. AVALON, ON THE OTHER
HAND, HOPING TO SALVAGE ITS INTERNATIONAL REPUTATION, TOOK STEPS TO MOVE THE
INTERNATIONAL TRIBUNAL OF THE LAW OF THE SEAS (ITLOS) ON THE BASIS OF THE SECOND
REPORT OF PRO BONO ENVIRO. AVALON CONTENDED THAT AS BOTH PARTIES HAVE
DECLARED THAT THE ITLOS WILL DECIDE MATTERS GOVERNED BY UNCLOS, ITLOS SHALL
HAVE JURISDICTION. RIVERDALE INSTEAD CHOSE TO INVOKE THE COMPROMISSORY
JURISDICTION OF THE ICJ UNDER THE BILATERAL TREATY. AVALON, AGREED TO APPEAR
BEFORE THE WORLD COURT THOUGH IT RESERVED THE RIGHT TO OBJECT TO ITS
JURISDICTION. AVALON AND RIVERDALE, AT ALL RELEVANT TIMES, HAVE BEEN MEMBER
STATES OF THE UNITED NATIONS, PARTIES TO THE STATUTE OF THE INTERNATIONAL COURT
OF JUSTICE, THE VIENNA CONVENTION ON THE LAW OF TREATIES, THE VIENNA CONVENTION
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT XII

ON DIPLOMATIC RELATIONS AND THE UNITED NATIONS CONVENTION ON THE LAW OF SEAS,
CONVENTION ON BIOLOGICAL DIVERSITY. AVALON AND RIVERDALE ARE NOT PARTIES TO

ANY CONVENTIONS RELATING TO OUTER SPACE. FOR THE PURPOSE OF CONVENIENCE,
AVALON HAS OPTED TO BE THE APPLICANT AND RIVERDALE THE RESPONDENT.
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT XIII

-ISSUES RAISED-
STATEMENT O F ISSUES
1. WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS THE
JURISDICTION OVER THE DISPUTE?
2. WHETHER RIVERDALE SHOULD BE SOLELY HELD LIABLE UNDER
THE INTERNATIONAL SPACE LAW REGIME FOR THE ENVIRONMENTAL
MISHAP CAUSED BY THE CRASH OF VK 14?
3. WHETHER THE LIABILITY WITH RESPECT TO THE MARINE POLLUTION
IS ATTRIBUTABLE TO THE STATE OF AVALON OR RIVERDALE?
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT XIV

-SUMMARY OF ARGUMENTS-
SUMMARY OF ARGUMENTS
THE HON’BLE COURT LACKS JURISDICTION IN THE INSTANT DISPUTE.
The ICJ lacks jurisdiction over the current dispute. First, UNCLOS is lex specialis for this
dispute and prevails over CBD. Second, both the parties prefer a different organization to settle
the dispute and Avalon has not consented to ICJ’s jurisdiction. Third, CBD is not applicable to
the current dispute and hence the matter should be governed by Part XII of UNCLOS which
qualifies as the lex specialis in the case at hand. Moreover, there are other possible alternatives
enshrined within Article 287 of UNCLOS which have not even been resorted to. Hence, it is
humbly submitted that the ICJ lacks jurisdiction in this given issue.
THAT THE LIABILITY WITH RESPECT TO THE MARINE POLLUTION SHALL

BE ATTRIBUTED TO THE STATE OF RIVERDALE ALONE
It is the contention of the Applicant that the liability with respect to the damage to the marine
environment shall be attributed to Riverdale wholly. It is further submitted that Avalon acted
in compliance with the conventions it is part of and also in line with the recognised principles
of environment law that have attained the status of International customary law. The liability
shall be attributed to the State of Riverdale because it did not adhere to various recognised
principles of International Environment Law. To state a few the respondent did not comply
with the proper due diligence and the principle of no-harm. It must also be observed that the
polluter’s pay and strict liability for ultra-hazardous activity principles prompts the liability to
be attribute to the State of Riverdale. The respondent also failed in its duty to inform the other
coastal states and failed to conduct any environmental impact assessment.
It is the contention of the counsel that the respondents violated various provisions of UNCLOS
and CBD and thus the liability shall be attributed to it.
The respondents also violated various rights of the SOEL tribes who live along the east coast
of Avalon and revered the Sameena species which have been critically harmed due to the
pollution caused by Chemical IRIS, hence the respondent is liable under ICCPR, ICESCR and
CBD for the same.
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT XV

-SUMMARY OF ARGUMENTS-
RIVERDALE SHALL BE INTERNATIONALLY LIABLE FOR THE

ENVIRONMENTAL MISHAPS CAUSED BY ITS SOVEREIGN PROPERTY - THE
PAYLOAD CONTAINING CHEMICAL IRIS
The international space law, which is majorly in the form of codified law has taken the shape
of Customary International Law over a period of time owing to the evolving Opinio Juris and
the consistent State Practice, thereby providing with International principles which binds both
on Avalon and Riverdale. Further, A joint reading of the Art 3(1) of the Bilateral treaty along
with the Art II of the Liability Convention prima facie holds Riverdale liable for the
Environmental Catastrophe.
WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT XVI

-PLEADINGS-
PLEADINGS
I. WHETH ER TH E INTERNATIO NAL COURT O F JUSTICE HAS

THE JURISDICTIO N OVER THE DISPUTE?
The ICJ lacks jurisdiction over the current dispute. First, UNCLOS is lex specialis for this
dispute and prevails over CBD. Second, both the parties prefer a different organization to settle
the dispute and Avalon has not consented to ICJ’s jurisdiction. Third, CBD is not applicable to
the current dispute and hence the matter should be governed by Part XII of UNCLOS which
qualifies as the lex specialis in the case at hand. Moreover, there are other possible alternatives
enshrined within Article 287 of UNCLOS which have not even been resorted to. Hence, it is
humbly submitted that the ICJ lacks jurisdiction in this given issue.
A. JURISDICTION OF INTERNATIONAL COURT OF JUSTICE.
“The jurisdiction of any International Tribunal strictly depends upon the agreement of the
States to accept that jurisdiction. Accordingly, no sovereign State can be made a party to
proceedings before the Court unless it has in some manner or other consented thereto.”1 A State
can consent to ICJ jurisdiction by several methods. First, the Court has jurisdiction over “all
cases which the parties refer to it.”2 Second, the Court has jurisdiction over “all matters
specially provided for in treaties and conventions in force.” And lastly, “the states parties to
the present Statute may at any time declare that they recognize the jurisdiction of the Court in
all legal disputes concerning any question of international law.”3
The Court lacks jurisdiction over Avalon in the matter pertaining to the conservation of marine
biodiversity of the Sonumalia Sea. First, Avalon never referred the matter to the Court. 4
Second, the matter arises under the United Nations Convention on the Law of Seas, 1982. It
1
ICJ, ‘Handbook of the Court’ <www.icjcij.org/files/publications/handbook-of-the-court-en.pdf> accessed 7
November 2018.
2
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 3 Bevans
1179 (ICJ Statute).
3
Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) 3
Bevans 1179 (ICJ Statute) art 36(2).
4
Moot Proposition, Para 19.
1|Page
-PLEADINGS-
is submitted that the treaty does not provide for ICJ’s jurisdiction over the current dispute.
Also, Avalon never declared that it recognizes the court’s jurisdiction with regard to the matter
of the Sonumalia Sea.5 The applicants contend that the first and the last contention are
undisputed. The current matter invokes no treaty for which the applicant has provided for ICJ’s
jurisdiction in particular, but rather invokes UNCLOS. The respondent argues that the matter
arises under the Convention on Biological Diversity (hereafter CBD), but this convention
governs more general law, not applicable to this matter, which therefore infringes the lex
specialis of UNCLOS.
B. UNCLOS PREVAILS AS LEX SPECIALIS VIS-À-VIS CBD
It is submitted that UNCLOS is lex specialis in this matter and hence has the power to resolve
the matter. The doctrine of Lex specialis says lex specialis derogat legi generali, i.e., law
governing specific subject matter overrides law governing general subject matter. In the current
dispute, Part XII of UNCLOS is the specific law that should govern the relevant subject matter
6
concerning the marine environment of the Sonumalia Sea. The doctrine has often been
recognised in ICJ cases.7 On the PCIJ Mavrommatis Palestine Concessions Case, the Court
held that, in conflicts between legal provisions, preference should be given to the “special and
more recent agreement.”8 Consequently, whenever two or more norms regard the same subject-
matter, preference should be given to the more specific norm.
In the present matter, Riverdale specifically requested the Court to hold Avalon responsible for
“negatively impacting the high seas of the Sonumalia Sea by the VK-14 launch vehicle. 9 In
such, the claims of the respondents are solely related to the project’s possible effects on the
marine environment of the high seas of Sonumalia. Hence, the law applicable here, for this
specific dispute, is the United Nations Convention on the Law of the Seas and not CBD. The
Convention on Biological Diversity (CBD) aims for the conservation of biological diversity
and the sustainable use of its components. To that extent, it determines that State parties shall
5
6
US Legal, ‘Lex Specalis’ <www.definitions.uslegal.com/l/lex-specialis/> accessed 4 October 2019.
7
Maritime Delimitation in the Indian Ocean (Somalia v Kenya) (Merits) [2017] ICGJ 508; Pulp Mills Case
(Argentina v Uruguay) (Merits) [2006] ICJ Rep 101.
8
Mavrommatis Palestine Concessions (Greece v. UK) (Merits) [1924] PCIJ 31.
9
2|Page
-PLEADINGS-
cooperate with each other10, develop national strategies11 and adopt economically and socially
sound measures as an incentive to foster its objectives. 12
The UNCLOS, however, directly addresses the issue at hand. It is submitted that Part XII of
the UNCLOS should govern this dispute as it clearly addresses the issues of Protection and
preservation of the Marine Environment. The Applicants also contend that CBD does not
specifically address the matter of non-migratory species nor does it regulate the protection of
the non-migratory species; (Sameena in the present matter) but rather establishes a broad
regime for the protection of all biological diversity. However, UNCLOS on the other hand
clearly addresses the question of law involved here. It has provisions for states to have a general
obligation to preserve the marine environment,13 to take up relevant measures to prevent,
reduce and control the pollution of the marine environment.14 Hence, it is humbly submitted
that since UNCLOS is the lex specialis governing the current issue, the dispute resolution
mechanism prescribed under Part XV of the convention which talks about dispute resolution
through conciliations and arbitration15through the International Tribunal for Law of the Sea
established in accordance with Annex VI of the convention.16
C. BOTH THE PARTIES PREFER A DIFFERENT ORGANIZATION TO

SETTLE THE DISPUTE, SO ICJ LACKS JURISDICTION.
When a State signs, ratifies, or accedes to UNCLOS, it may choose a procedure to resolve “any
dispute concerning the interpretation or application of this Convention. 17 If the parties to a
dispute have chosen different procedures, then they may submit their dispute “only to
10
Convention on Biological Diversity (adopted 05 June 1992, entered into force 29 December 1993) 1760
UNTS 79 (Biodiversity Convention) art 5.
11
12
13
United Nations Convention on Law of the Seas (adopted 10 December 1982, entered into force 16 November
1994) 1833 UNTS 3 (UNCLOS Convention) art 192.
14
15
16
17
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arbitration in accordance with Annex VII, unless the parties otherwise agree. 18 Under Annex
VII, the arbitral tribunal shall consist of five arbitrators43 chosen from a list of arbitrators
“drawn up and maintained by the Secretary-General of the United Nations.” 19
Avalon and Riverdale have chosen different procedures. Riverdale chose the ICJ, but Avalon
chose the International Tribunal for the Law of the Sea. Therefore, any dispute between Avalon
and Riverdale arising under UNCLOS must submit to Article VII arbitration, not to ICJ
judgment.
D. CBD IS NOT APPLICABLE TO THE CURRENT DISPUTE.
CBD seeks to conserve biological diversity by using the earth’s living organisms sustainably. 20
This treaty also requires Parties to settle disputes by negotiation, but if they cannot, by
arbitration or submission to the International Court of Justice. 21 However, for a treaty to apply
to a legal dispute, the facts of the dispute must reasonably relate to the legal standards of the
treaty.22 The Court decides whether a treaty relates to a dispute. The Court should consider not
only the Application and Final Submission but also diplomatic exchanges, public statements,
and other pertinent evidence.23 CBD is irrelevant to this dispute, because CBD concerns
conserving biological diversity through sustainable use of organisms. However, in the current
there has been no unsustainable use of the high seas. Assuming arguendo that there was indeed
an unsustainable use, it was clearly accidental and was a result of a completely unrelated
electrical flaw in the spacecraft, which compelled the launch vehicle to dump the chemical
waste into the high seas of Sonumalia and not proceed further towards the higher orbit. 24 Hence,
it is humbly submitted that factual matrix of the case does not invoke CBD per se, the hon’ble
Court lacks jurisdiction.
18
1994) 1833 UNTS 3 (UNCLOS Convention) art 287(5).
19
20
21
22
Southern Bluefin Tuna case (New Zealand-Australia v Japan) (Merits) [2000] AT 1.
23
Fisheries Jurisdiction Case (Spain v Canada) (Merits) ICJ Rep 1998.
24
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E. POSSIBLE ALTERNATIVES FOR RESOLUTION OF THE DISPUTE

WITHIN UNCLOS.
Article 286 and 287 of UNLCOS talk about the dispute resolution mechanism in case of any
issue arising out of the application and interpretation of this treaty. The provisions of the Article
clearly provide for the redressal of the disputes through peace making negotiations and
arbitrations. But the same has not been resorted to in the present dispute. Rather, Riverdale
directly moved the hon’ble court without obtaining the consent of Avalon. This is in clear
violation of Part XV of UNCLOS, that established ITLOS as the adjudicating authority for any
disputes arising out of the treaty.25 Hence, it is humbly submitted that issue before the Hon’ble
court be addressed in accordance with the provisions of UNCLOS, which is the lex specialis
governing the instant dispute
II. WHETH ER TH E LIABILITY WITH RESPECT TO TH E MARINE

POLLUTION IS ATTRIBU TABLE TO THE STATE O F AVALON OR
RIVERDALE
The counsel humbly submits before this hon’ble court that that the liability with respect to the
damage to the marine environment shall be attributed to Riverdale wholly. It is further
submitted that Avalon acted in compliance with the conventions it is part of and also in line
with the recognised principles of environment law that have attained the status of International
customary law. That the State of Riverdale is liable for the pollution caused by Chemical IRIS
due to its non-observance of various recognised principles of International environment law
A. THE LIABILITY SHALL BE ATTRIBUTED IN VIEW OF THE POLLUTER’S

PAY PRINCIPLE
It is pertinent to note at this juncture that the payload that caused the marine pollution and the
subsequent death of Sameena, which was revered by the SOEL tribes, belonged to Riverdale;
25
1994) 1833 UNTS 3 (UNCLOS Convention) art 287(1)(a).
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on a close perusal of the Bilateral treaty, especially Art 3(1)26 it is amply clear that Riverdale
possessed sovereignty over the payloads and satellites. To consider a similar proposition in the
case of an oil spill, a flag state is responsible for the harm caused to the environment by its
vessel in the high seas27, when the payload and the vessel both belonged to the same flag state,
since at the facts at hand, the supply of payload 28, which essentially caused pollution, was done
by Riverdale, while Avalon through ASP just provided for a spacecraft to put the payloads into
the higher earth orbit. The above stated contentions are a clear enunciation of the polluter’s pay
principle in the International environment law. The principle imposes liability on the polluter
and ensures that the costs of dealing with the damage are borne by the polluting state. The
principle has come to be accepted as a general principle of International law, and has been even
codified in many international agreements such as Oil pollution liability and funds convention,
1992 and Convention on Liability and compensation for the Carriage of Hazardous and
Noxious Substances by Sea, 1996.
B. OBSERVANCE OF STRICT LIABILITY IN VIEW OF ULTRA-HAZARDOUS

ACTIVITY
It is the contention of the applicant before this hon’ble court that Riverdale did not fulfil its
essential obligation under the Bilateral Treaty and hence the applicant has a valid ground to
impute the liability on it; it must be seen that Art. 629 of the Bilateral Treaty clearly imposes an
obligation on Riverdale to disclose the detailed contents and purpose of every satellite and
payload to be launched by ASP, it can further be seen that Riverdale clearly failed in its
obligation to do so when it stated the contents of the payload to be the plastic waste that could
not be recycled or downcycled, while the actual contents vastly differed from the stated
contents, the actual contents of the payload also included Chemical IRIS 30, which were
essentially ultra-hazardous in nature.
26
Moot Proposition, Annexure 1.
27
Smith, State Responsibility and the Marine Environment (Oxford, 1988) 201.
28
29
Moot proposition, Annexure 1.
30
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C. COMPLIANCE WITH DUE DILIGENCE STANDARDS
The counsel further submits that the Avalon complied with all possible due diligence and the
cause of the failure of the space launch was completely alien and something that could not be
controlled by reasonable human conduct; at this juncture it is important to note that the ASP
previously had conducted 23 successful launches 31, and the failure in the launch had occurred
due to a rare electrical fault which was completely unrelated to the amount of care that was
expected of ASP32. It shall be taken into account that quickly after realising that the spacecraft
has suffered some defects, the ASP took imminent measures in order to eliminate the loss of
human lives and manoeuvred the space craft into the high seas of Sonumalia. 33 Historically,
the concept of due diligence had its main importance in the context of state responsibility for
private actors, where it refers to the preventive measures expected of a state when international
law is breached by private persons or entities within the exclusive control of the state, and not
by the state as such.34 However, In the context of the no-harm rule there seems to be a growing
consensus on the basic elements of the standard and on the obligation being a minimum
standard that provides a test where the conduct of the state must be compared to what a “good
government” would do in a particular situation of transboundary pollution. 35
At this juncture it become important to peruse a few cases where the ICJ and other adjudicatory
bodies had an occasion to deal with the concept of due diligence. One of the most significant
ICJ case in this regard is of Pulp Mills. The ICJ here gave a definition of the duty to act with
due diligence which corresponds with the definition given in the Articles of Prevention. 36 The
Court stated that the obligation is one to “use all the means at its disposal 37” in order to avoid
that activities which take place in its territory or under its jurisdiction cause significant damage
to the environment of another state, and explained that this obligation requires both that
appropriate regulations and measures are adopted, and moreover that these regulations are
enforced.38 Under the obligation, states are furthermore required to ensure enforcement of these
measures: to exercise administrative control applicable to public and private operators and
31
32
33
Ibid.
34
Timo Koivurova, Introduction to International Environment law (OUP 2013) 1.
35
Stahl & Voigt, State Responsibility for Climate Change (Penguin 2008) 11.
36
Pulp Mills Case (Argentina v Urugway) (Merits) [2006] ICJ Rep 101.
37
Ibid.
38
Pulp Mills Case (Argentina v Uruguay) (Merits) [2006] ICJ Rep 197.
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careful consideration of the technology to be used. The International Tribunal for Law of the
Seas later in its advisory opinion rendered in the Seabed Activities case drew upon the definition
given in the Pulp Mills case and held that, the standard of due diligence has to be more severe
for the riskier activities.39 It must be noted that juxtaposition of the clear legal position
emanating from the above mentioned judicial dictums, it must be seen that the degree of care
that was required was actually taken to the fullest extent by the State of Avalon and there exists
a causal link between the damage and the cause of the marine pollution which was effectively
Chemical IRIS, hence it is contented that the liability should be wholly attributed to the State
of Riverdale for its deliberate negligence in not disclosing the contents of the payload.
ISSUE I. VIOLATION OF PRINCIPLE OF NO-HARM
It is the humble submission of the counsel appearing on behalf of Avalon that Riverdale should
be made liable under the no-harm rule and the rule of environmental impact assessment. The
no-harm entails that states should take all reasonable precautions in order to avoid the harm
caused to the environment, to further elucidate, it must be understood that states are obliged to
achieve actual prevention; states are thus generally responsible for damage caused by their
behaviour, regardless of negligence or fault. It is thus one of strict liability, and a causal link 40
between the activity and the occurring damage is generally enough to trigger the no-harm rule,
as long as the required threshold is exceeded. The approach thus places considerable emphasis
on what level of harm that must be tolerated under the obligation, and on causation.
An early work of ILC is thus of utmost importance and its perusal necessary, it was suggested
that activities involving risk of harm are as such unlawful and therefore prohibited.41 The
approach of actual prevention becomes amply clear keeping in sight the Trail Smelter
arbitration; having a smelter plant was lawful, but Canada was still held responsible for the
harm that the smelter plant caused to areas within US territory. A distinction between lawful
and unlawful activities with regard to the no-harm rule therefore generally seems unfavourable.
Juxtaposing the clear legal position in the international sphere, it becomes amply clear that the
causal link between the pollution occurring from the payloads and discreet addition of
39
Seabed Activities Case (Merits) [2011] ITLOS Rep 10.
40
Tol and Verheyen, State responsibility and compensation for Climate Change (OUP 2004) 114.
41
UN Doc. A/CN.4/428 (1990).
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Chemical IRIS in the payload is established and thus the State of Riverdale has violated the
internationally recognised principles of no-harm and actual prevention.
D. AVALON IS NOT LIABLE UNDER ANY OTHER CONVENTIONS ON

POLLUTION
It is the submission of the counsel that Avalon is not to be made liable under the London
Dumping Convention, 197242 since Avalon is not stated to be a party to it, even if the
respondent raises a claim as to its nature of being International Customary law, it shall be seen
that first para of Article 5 to the said convention gives immunity to Avalon from liability under
the convention, since the act of manoeuvring the spacecraft was essentially to secure the safety
of human life since if not manoeuvred the spacecraft would have caused excessive damage to
the human lives. It is further submitted that Avalon is not a party state to any of the convention
such as OSPAR43 and hence the provisions of such conventions are not binding on Avalon.
E. RIVERDALE VIOLATED EXPRESS PROVISIONS OF UNCLOS
It is submitted that Riverdale acted in violation of Article 116, 117, 118, 119 and 120 of the
United Nations Convention on Laws of the Seas44 when it did not disclose the contents of the
payload and mischievously included Chemical IRIS in the contents of the payload which
caused the excessive pollution in the high seas of Sonumalia. The above stated articles of
UNCLOS talk about conservation and management of the living resources of the high seas, it
is pertinent to conclude that as Riverdale’s actions have prima facie culminated into the near
extinction of Sameena species of Fish which is even revered by SOEL tribes 45 which are an
indigenous community living along the east coast of Avalon and as Riverdale is a party state
42
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (adopted 13
November 1972, entered into force 30 August 1975) 1046 UNTS 120 (London Dumping Convention).
43
Convention for the protection of the marine environment of the North-east Atlantic (adopted 22 September
1992, entered into force 25 March 1998) 2354 UNTS 67 (OSPAR Convention).
44
1994) 1833 UNTS 3 (UNCLOS Convention).
45
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to UNCLOS and has no prior reservations mentioned, whole of the liability shall be attributed
to the state of Riverdale.
It is submitted that Riverdale acted in violation of Article 193 of the UNCLOS when even after
knowing that the payloads consisting Chemical IRIS has resulted in a huge environmental
disaster leading to Sameena getting critically endangered, it did not take any steps to reduce
the effects of the pollution. Article 193(3)46 talks about measures to minimize to the fullest
possible extent the cause of the pollution.
It is the submission of the counsel on behalf of state of Avalon that Riverdale did not comply
with the principle of Environmental Impact Assessment enshrined in Article 206 of UNCLOS.
Article 206 talks about the responsibility of the states to conduct environmental impact
assessment when it considers that the activities undertaken by it may cause substantial
environmental pollution. It is further submitted that Riverdale ought to have conducted a
meticulous environmental impact assessment when it thought of including Chemical IRIS as
part of the contents of Arjun 7. Thus, it can be reasonably be concluded depending upon the
UNCLOS and the principle of environmental impact assessment that Riverdale shall be
exclusively be liable for the marine damage that has took place in the high seas of Sonumalia.
F. THE ATTRIBUTION OF LIABILITY UNDER CBD SHALL BE DONE

TOWARDS RIVERDALE
It is submitted by the applicant that Riverdale shall be liable to account for the marine pollution
under the convention of biological diversity (CBD); it must be seen that Article 8 and 9 47 of
CBD imposes obligation on party states to constantly strive for the preservation of endangered
and threatened species. It must be seen that the Convention on Biological Diversity along with
the Stockholm declaration48 and Rio declaration49 provide an elaborate framework for
46
1994) 1833 UNTS 3 (UNCLOS Convention).
47
UNTS 79 (Biodiversity Convention).
48
Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972, entered
into force 16 June 1972) 11 ILM 1416 (Stockholm Declaration).
49
Rio Declaration on Environment and Development (adopted 13 June 1992, entered into force 13 June 1992)
31 ILM 874 (Rio declaration).
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Protection of the Oceans and all kinds of seas and their biodiversity. Chapter 17 of UNCED
Agenda 21 also addressed the same concern and advocates for conservation and sustainable
development of marine living resources. It talks about prior environmental impact assessment
and a precautionary and anticipatory approach to protection from degradation. The concerns
first raised in the Agenda 21 are reflected again in the Convention on Biological Diversity
through its various Conference of Parties (COP). The CBD aims to achieve; the conservation
of biodiversity and the sustainable use of its components. Article 5 of the CBD requires states
to co-operate directly or through international organisations concerning areas beyond national
jurisdiction and other matter of mutual interest for conservation and sustainable use of
biological diversity also Article 14 requires parties to conduct environmental impact
assessment of proposed projects likely to have significant adverse impacts on biological
diversity with a view to avoiding or minimizing such effects and to introduce appropriate
arrangements to ensure that the environmental consequences of its programmes and policies
that are likely to have significant adverse impacts on biological diversity are duly taken into
account. There has been significant codification of the principle of Environmental Impact
Assessment by way of Environmental Impact Assessment, 1991. Article 8 also talks about in
situ conservation where by it imposes an obligation on the party states to protect ecosystems
and promote sustainable development in the natural habitat of the biodiversity. The actions of
Riverdale such as inclusion of Chemical IRIS in the payload of Arjun 7 discreetly, has resulted
in extensive loss of marine biodiversity in the high seas of Sonumalia and has led to a demand
of putting Sameena species in the category of critically endangered. 50 Thus, looking at the
grave and deliberate errors on the part of Riverdale, it should be wholly held liable for the
damage caused at the high seas of Sonumalia
G. THAT RIVERDALE VIOLATED THE RIGHTS OF INDIGENOUS

COMMUNITIES
The counsel humbly submits before this hon’ble court that that the actions of the State of
Riverdale has actually resulted in violation of the rights of the indigenous community, more
specifically the SOEL tribes, and the liability for the damage must actually be attributed to the
State of Riverdale.
50
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It must be stated at the outset that the SOEL tribes do fall within the meaning of indigenous
community, there is no singularly authoritative definition of indigenous peoples under
international law and policy, and the Indigenous Declaration51 does not set out any definition.
In fact, its articles 9 and 33 state that indigenous peoples and individuals have the right to
belong to an indigenous community or nation, in accordance with the traditions and customs
of the community or nation concerned, and that they have the right to determine their own
identity.
It does, however, formulate three principles which also figure in ILO Convention52
concerning Indigenous and Tribal Peoples in Independent Countries of 1989 and which may
well reflect customary international law. First, a group’s self-identification is a fundamental
consideration in determining its status and scope. Second, non-recognition or misrecognition
by the territorial State does not alter the applicable international law. Third, matters of
membership are to be determined by the group itself, within some limits.
Despite the lack of an authoritative definition, there are criteria that help to define indigenous
peoples. The main one is the criterion of self-identification and those proposed by José
Martínez Cobo which include: (i) historical continuity with pre-invasion and/or pre-colonial
societies that developed on their territories; (ii) distinctiveness; (iii) non-dominance; and (iv) a
determination to preserve, develop and transmit to future generations their ancestral territories
and identity as peoples in accordance with their own cultural patterns, social institutions and
legal system. The United Nations Permanent Forum on Indigenous Peoples has stressed, in
addition to the above: (i) a strong link to territories and surrounding natural resources; (ii)
distinct social, economic or political systems; and (iii) distinct language, culture and beliefs.
One of the rights of the indigenous community is the right of non-deprivation of the means of
subsistence, Peoples are entitled to freely dispose of their natural wealth and resources for their
own ends53 and in no case, may a people be deprived of its own means of subsistence. 54 This
51
United Nations Declaration on the Rights of Indigenous Peoples (adopted 12 October 2007, entered into force
12 October 2007) A/61/L.67/Annex (UNDRIPS).
52
The Indigenous and Tribal Peoples Convention (adopted 27 June 1989, entered into force 27 June 1989) 1650
UNTS 383 (ILO Convention).
53
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 1; International Covenant on Economic, Social and Cultural Rights (adopted
16 December 1966, entered into force 3 March 1976) 993 UNTS 3 (ICESCR).
54
United Nations Declaration on the Rights of Indigenous Peoples (adopted 12 October 2007, entered into force
12 October 2007) A/61/L.67/Annex (UNDRIPS).
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right entails corresponding duties for all States and the international community. The right to
permanent sovereignty over natural wealth and resources55 is linked to self-determination and
is a rule of customary international law, 56 non-derogable as jus cogens. 57 It extends to
indigenous peoples. Survival of indigenous peoples’ particular way of life depends on access
and rights to their traditional land and natural resources thereon.
The acts on the part of State of Riverdale have also violated the rights of SOEL tribes since
they have a Right to culture. Indigenous population has a distinct culture and way of life centred
and dependent on some natural resource. Manifestations of their culture include traditional
clothes, distinct way of practicing rituals, customs, traditional knowledge, tools and shelter
which distinguishes them from other communities. They have the right to take part in cultural
life. 58 It comprises of the right to access and participate in the political life of society and
engage in one’s own cultural practices. The depletion of Sameena Species has specifically led
to the violation of the right of SOEL tribes to culture since the species were revered by the
Tribes.
Another right which has been violated due to the marine pollution caused by Chemical IRIS is
the right to religion. Religion serves an important part in the formation of identity and is
intertwined with culture of indigenous peoples. Freedom of religion’s 59 fundamental character
is demonstrable in its non-derogable nature, bestowing the right to have a religion and manifest
it in community with others. It is protected unconditionally. Freedom to manifest one’s religion
extends to rituals associated with certain stages of life, ceremonial acts, rites and customs. The
interference with accessing their natural resource caused by unsustainable use of indigenous
resources, severely constrains their ability to conduct or engage in religious rituals with
considerable repercussion on the enjoyment of their freedom of worship.
55
International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force
3 March 1976) 993 UNTS 3 (ICESCR).
56
Armed Activities on the Territory of the Congo Case (Dem. Rep. of Congo v Uganda) ICJ Rep 168.
57
3 March 1976) 993 UNTS 3 (ICESCR).
58
3 March 1976) 993 UNTS 3 (ICESCR) art 15(1)(a).
59
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR) art 1.
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Thus, looking at the gross violations of rights of Indigenous community the liability with
respect to the marine pollution which led to the near depletion of Sameena species, which the
SOEL tribes revered, shall be wholly attributed to the State of Riverdale.
H. THE UNDISCLOSED CHEMICAL IRIS DELIVERED BY RIVERDALE TO

THE ASP HAS CAUSED THE NEAR EXTINCTION OF SAMEENA:
Sameena a straddling endemic species depleted in huge numbers post the crash of VK-14 and
the Pro Bono Enviro In an unequivocal report had stated that the same shall be attributed to the
Chemical IRIS which leaked from the crash of VK-1460. The non-disclosure of the contents of
the payload by Riverdale per se establishes the utter disregards of the State of Riverdale to the
“Precautionary Approach” which was ought to be complied with as enumerated under principle
15 of the Rio Declaration61.
Furthermore, by not complying with the bilateral treaty requirements, Riverdale failed to fulfill
its obligations under the FAO guidelines on responsible fisheries 62. In addition to this, the
Agreement on Migratory and Straddling Fish Stocks of 1995 imposes positive obligation on
states to take measure to ensure minimalization of Discharge of waste and pollution, especially
with regards to the endangered marine species 63. It may very likely be claimed that neither
Riverdale nor Avalon were parties to these treaties, but the deconstruction of “travaux
préparatoires” of these agreements and guidelines indicate that they are to be applied as
ancillary interpretative documents64 which bridge the gaps in The UNCLOS, thereby, the
relevancy of these conventions cannot be negated as such. There was also a failure on the part
of Riverdale in complying with Art. 22(2) of the CBD 65, which explicitly mandates the
contracting states to implement the convention in accordance to the existing obligation, i.e.,
60
61
Rio Declaration on Environment and Development (adopted 13 June 1992, entered into force 13 June 1992)
31 ILM 874 (Rio declaration).
62
FAO Guidelines (adopted 5 December 1995, entered into force 5 December 1995) 995 UNTS 6 (FAO
Guidelines) art 6.8.
63
UNDOC/GEN/N95/274/67 (2000).
64
FAO, ‘Obligations to protect marine ecosystems under international conventions and other legal instruments’
(FAO, 1 March 2010) <http://www.fao.org/tempref/FI/DOCUMENT/reykjavik/pdf/02Aqorau.pdf> accessed 7
September 2019.
65
UNTS 79 (Biodiversity Convention) art 22(2).
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the FAO guidelines and Agreement on Migratory and Straddling Fish Stocks of 1995 in the
given case.
Thus, it is hereby argued that the depletion of Sameena shall be solely attributable to the State
of Riverdale considering its callousness in fulfilling its international obligations in pursuance
to the UNCLOS66, CBD and other existing Environmental Law Principles.
III. RIVERDALE SHALL BE L IABLE FOR THE ENVIRO NMENTAL

MISHAPS CAUS ED BY HER SOVEREIGN PRO PERTY - THE
PAYLOAD CO NTAINING C H EMICAL IRIS
The international space law, which is majorly in the form of codified law has taken the shape
of Customary International Law over a period of time owing to the evolving Opinio Juris and
the consistent State Practice, thereby providing with International principles which binds both
on Avalon and Riverdale. Further, A joint reading of the Art 3(1) of the Bilateral treaty along
with the Art II of the Liability Convention prima facie holds Riverdale liable for the
Environmental Catastrophe.
A. SPACE LAW FALLS WITHIN THE AMBIT OF CUSTOMARY

INTERNATIONAL LAW
The first major international space convention was signed in the form of the Outer Space treaty
in the year of 1967, followed by the Liability Convention in 1972 and the Registration
Convention in 1974. Space exploration started way back in the 1940’s when the Nazis had
utilized the V-2 Rockets as a means to transgress the gravitational force of earth 67. Rockets
were consistently sent to the space thereafter, in a vacuum of any regulation, thereby paving
way for certain General Principles.
The interaction between the space law and the Customary International Law could be seen
through two precepts. Firstly, the customary Law being codified into treaty68 and secondly, the
66
67
Stephen J Dick, Remembering the Space Age (National Aeronautics and Space Administration, Office of
External Relations, History Division 2008).
68
Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-Making (Brill 1972) 136;
Francis Lyall and Paul B Larsen, Space Law (Ashgate 2007).
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treaties taking shape of Customary rules 69.In the case on hand where the liability is to be
ascertained, falls within the ambit of the latter perception. To prove the existence of customary
international law it is required to put forth the elements of state practice and Opinio Juris70.
The Opinio Juris with regards to the registration has been inexistence way since 1962 when the
U.N. registry was established. Further the genesis of the state practice could be traced when
the United States (US) became the first country to submit information regarding its 72 space
objects under the UN Resolution71 and For the period from 1962 to 1976, the US habitually
continued its practice as it forwarded information not only about 4000 launched space objects
but also about 1200 objects that had decayed and brief mentions of about 50 objects that did
not reach orbits72.This initiative and example of the US has been followed by, as noted above,
other launching States (as well as those that procured the launches), like the Soviet
Union/Russian Federation73, France, Japan, India, Nigeria, Saudi Arabia, the United Kingdom,
Venezuela, and so on. Furthermore, an important example, in this regard, is that of Luxembourg
(which is not a Party to the Registration Convention), as it has registered its 116 space objects
under the UN Resolution74.
Along with the aforementioned principle on ascertaining the sovereignty of a space object,
there was a simultaneous development pertaining to the attribution of liability arising out of
damage caused by space objects within the atmosphere of earth. The case of Kosmos 954 75 is
of much relevance in the given scenario. Though the dispute was settled by a series of
negotiations between Canada and the erstwhile U.S.S.R.76, it gave rise to few fundamental
principles, one of which was that the state whose satellite had crashed has the duty to
69
Vienna Convention on Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155
UNTS 331 (VCLT) art 38.
70
International Law Commission, Identification of customary international law Statement of the Chair of the
Drafting Committee (International Law Commission No 17, 2018).
71
UNGA res 1721 B (XVI) (7 March 1962).
72
United Nations Office for Outer Space Affairs (United Nations Register of Objects Launched into Outer Space)
<http://www.unoosa.org/oosa/en/spaceobjectregister/submissions/rf.html > accessed 1 October 2019.
73
UNGA res 1721B (XVI) (4 May 1978).
74
United Nations Office for Outer Space Affairs (United Nations Register of Objects Launched into Outer
Space) <http://www.unoosa.org/oosa/en/spaceobjectregister/submissions/rf.html > accessed 1 October 2019.
75
Guss W Weiss, ‘Life and Death of Kosmos’ (Central Intelligence Agency, 2008); Eilene Galloway, ‘Nuclear
Powered Satellites: The U.S.S.R. Cosmos 954 and The Canadian Claim’ [1989] CYIL.
76
Protocol Between the Government of Canada And the Government of The Union of Soviet Socialist Republics
[1978].
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compensate a state injured as a result of the crash77. In the case on hand, the term satellite shall
be seen in consonance with the payload which contained the chemical IRIS.
The general principle which shall be applicable in the given instance is mandated under Art II
of the Liability Convention78, which is to be read in consonance with the Registration
convention, 79 for the purpose of ascertaining the launching state80 which is at fault. A further
reading of the Registration Convention by means of juxtaposing it with Art 3(1) of the Bilateral
Treaty81 establishes that the state of Riverdale shall be construed as the sole launching state,
thereby it shall be solely attributable and absolutely liable for the damages. By adopting Art.
3(1) of the Bilateral Treaty Riverdale has indeed waived its possibilities to indemnify itself for
the reparations paid, henceforth, exonerating Avalon from all possible liabilities.
B. THE DAMAGES CAUSED BY THE CRASH OF VK-14 FALLS UNDER THE

DEFINITION OF DAMAGE IN LIABILITY CONVENTION AND AVALON IS A
VICTIM STATE
Article I of the Liability Convention states that damage shall cover “The term “damage” means
loss of life, personal injury or other impairment of health or loss of or damage to property of
States or of persons, natural or juridical, or property of international intergovernmental
organisations”82. This present case falls under the ambit of damage caused to the property. The
reason being that contamination of the high seas of Sonumalia adjoining the coast of Avalon
depleted the fisheries resource for Avalon. The same was also manifested when the countries
had issued advisories instructing the fishermen of their respective countries not to fish in the
Seas of Sonumalia in pursuant to the widespread effect of Chemical IRIS 83.
77
Alexander F Cohen, ‘Cosmos 954 and the International Law of Satellite Accidents’ [1984] YJI.
78
Convention on International Liability for Damage Caused by Space Objects (adopted 29 March 1972, entered
into force 1 September 1972) 961 UNTS 187 (Liability Convention) art 2.
79
Convention on Registration of Objects Launched into Outer Space (adopted 14 January 1975, entered into
force 15 September 1976) 1023 UNTS 15 (Registration Convention).
80
force 15 September 1976) 1023 UNTS 15 (Registration Convention) art 1(1).
81
Moot Proposition, Annexure 1.
82
83
17 | P a g e
-PLEADINGS-
Every country has a vested right in the form of “Freedom to Fish” 84 in the high seas. This
freedom is construed as the property rights of the countries 85. Therefore, the depletion of
Sameena and other potential fishery resource amount to damage incurred by Avalon under the
liability convention. Henceforth, Avalon shall reserve its right to claim reparations under Art
VIII of the Liability Convention86, from Riverdale in case if the suits under other conventions
fail.
84
85
Gordon R. Munro ‘On the Management of Shared Living Marine Resources’ (Thesis University of British
Columbia).
86
2|Page
-PRAYER-
CONCLUSIO N AND PRAYER FO R RELIEF
In the light of arguments advanced and authorities cited, Applicant, State of Avalon
respectfully requests the hon’ble to adjudge and declare that:
1. The ICJ lacks jurisdiction in the current dispute.

2. The liability with respect to the marine pollution is attributable to the State of
Riverdale.
3. The State of Riverdale shall be liable for the mishaps caused by its Sovereign
Property (the payload containing the chemical IRIS).
Respectfully submitted,
AGENTS FOR THE APPLICANT.
2|Page

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THE INTERNATIONAL COURT OF JUSTICE PB-21

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CONSERVATION OF THE HIGH SEAS OF SONUMALIA

THE PROTECTION OF SAMEENA

(STATE OF RIVERDALE/STATE OF AVALON)

MEMORIAL ON BEHALF OF THE

TABLE OF CONTENTS .....................................................................................................I

LIST OF ABBREVIATIONS ........................................................................................... IV

TABLE OF AUTHORITIES ............................................................................................. V

STATEMENT OF JURISDICTION ................................................................................. X

STATEMENT OF FACTS ............................................................................................... XI

STATEMENT OF ISSUES ............................................................................................ XIV

SUMMARY OF ARGUMENTS ......................................................................................XV

I. WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS THE

A. JURISDICTION OF INTERNATIONAL COURT OF JUSTICE. ....................... 1

B. UNCLOS PREVAILS AS LEX SPECIALIS VIS-À-VIS CBD .............................. 2

C. BOTH THE PARTIES PREFER A DIFFERENT ORGANIZATION TO

D. CBD IS NOT APPLICABLE TO THE CURRENT DISPUTE. ............................. 4

E. POSSIBLE ALTERNATIVES FOR RESOLUTION OF THE DISPUTE

II. WHETHER THE LIABILITY WITH RESPECT TO THE MARINE

A. THE LIABILITY SHALL BE ATTRIBUTED IN VIEW OF THE POLLUTER’S

B. OBSERVANCE OF STRICT LIABILITY IN VIEW OF ULTRA-HAZARDOUS

C. COMPLIANCE WITH DUE DILIGENCE STANDARDS ................................... 7

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT II

D. AVALON IS NOT LIABLE UNDER ANY OTHER CONVENTIONS ON

E. RIVERDALE VIOLATED EXPRESS PROVISIONS OF UNCLOS .................... 9

F. THE ATTRIBUTION OF LIABILITY UNDER CBD SHALL BE DONE

G. THAT RIVERDALE VIOLATED THE RIGHTS OF INDIGENOUS

H. THE UNDISCLOSED CHEMICAL IRIS DELIVERED BY RIVERDALE TO

III. RIVERDALE SHALL BE LIABLE FOR THE ENVIRONMENTAL

A. SPACE LAW FALLS WITHIN THE AMBIT OF CUSTOMARY

B. THE DAMAGES CAUSED BY THE CRASH OF VK-14 FALLS UNDER THE

CONCLUSION AND PRAYER FOR RELIEF ................................................................. 2

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT III

Abbreviations Full Forms

Draft Articles on Responsibiity for states for Internationally

ASP Avalon Space Program

CBD Convention on Biological Diversity

CIL Customary International Law

COP Conference of Parties

EIA Environmental Impact Assessment

ICCPR International Covenant on Civil and Political Rights

ICJ International Court of Justice

ILC International Law Commission

PPP Polluter’s Pay Principle

SDG Sustainable Development Goals

UNCLOS United Nations Convention on the Law of the Seas

UNDRIPS United Nations Declaration on Rights of Indigenous People

ITLOS International Tribunal for the Law of the Sea

VCLT The Vienna Convention on the Law of Treaties

FAO Food and Agricultural Organisation

WRITTEN SUBMISSION ON BEHALF OF THE APPLICANT IV

TABLE O F AUTH ORITIES

Moot Proposition, Annexure 1 .............................................................................................. 6

Moot proposition, Annexure 1. .............................................................................................. 6

Moot Proposition, Annexure 1............................................................................................. 17

Moot Proposition, Para 11 ..................................................................................................... 6

Moot Proposition, Para 12. .................................................................................................... 6

Moot Proposition, Para 13 ............................................................................................. 2, 4, 7

Moot Proposition, Para 14. .................................................................................................. 17

Moot Proposition, Para 15. .................................................................................................... 9