IN THEINTRNATIONAL COURT OF JUSTICE

ATTHE PEACE PALACE, THE HAGUE

THE NETHERLANDS

THE CASE CONCERNING THE HAZE CRISISIN SOUTHEAST SOMCHAI

Republic of Megat,Applicant

V.

Federal Republic of Luka,Respondent

Memorial for the Applicant

Group 2

Ballares, Enricco Albert Bucay, Diannour

Macabalang, Saidaamin Jr.Pepito, Maria Bernadette

Tan, Estelle Marie Ubay-ubay, Princess Kimberly

September 26, 2015

1

TABLE OF CONTENTS

INDEX OF AUTHORITIES...........................................................................................................3

STATEMENT OF JURISDICTION...............................................................................................6

Questions Presented.........................................................................................................................7

Statement of Facts............................................................................................................................8

Summary of Pleadings...................................................................................................................11

Main Pleading................................................................................................................................12

I. The Federal Republic of Luka violated international law by facilitating, allowing and

otherwise failing to prevent the 2013 haze crisis

A. The Federal Republic of Luka facilitated, allowed, and otherwise failed to prevent the

2013 haze crisis......................................................................................................................13

B. State parties must adhere to the Treaty Obligations and perform the same in good faith

16

II. The Federal Republic of Luka Is Responsible for the 2013 Haze Crisis that caused

severe economic and Health Problems for the People of the Republic of Megat and

must correspondingly pay compensation for the damages Caused.

A. The Forest Fire in the Moltres Forest of West Kalimartin is the cause of the Haze that

eventually reached the Republic of Megat.............................................................................21

B. The Federal Republic of Luka failed to exercise due diligence in preventing the forest

fires from raging in the Motres Forests. Likewise, the State is negligent in mitigating its

effects after its discovery........................................................................................................24

Conclusion.....................................................................................................................................26

Prayer for Relief............................................................................................................................27

2

INDEX OF AUTHORITIES

Cases cited in the Memorial

SR. NO. NAME OF CASE AND CITATION

1

Corfu Channel Case (United Kingdom v. Albania). 1949. Retrieved from

http://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-

damrosche/chapter-4/corfu-channel-case-united-kingdom-v-albania/

2Trail Smelter Case (United States v Canada). 1941. Retrieved from

http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf

3

(Argentina v Uruguay). 2010. Retrieved form

http://hsfnotes.com/arbitration/2010/05/07/icj-makes-ruling-on-environmental-

protection-pulp-mills-on-the-river-uruguay-argentina-v-uruguay/

Treaties and International Laws

SR. NO. Name of the Treatise or Law

1 Statute of the International Court of Justice (1945)

2 Charter of the United Nations

3 Vienna Convention on the Law of Treatise

4 Stockholm Convention on Persistent Organic Pollutants

5 Convention on Conversation of Nature in the South Pacific

3

6

Ketteringsa, WibowOb, van NoordwijkC, Penot. Farmers' perspectives on slash-and-

burn as a land clearing method for small-scale rubber producers in Sepunggur, Jambi

Province, Sumatra, Indonesia. (1998) Retrieved from

http://worldagroforestry.org/sea/Publications/files/journal/JA0132-04.pdf

7

Scwabach. Transboundary Environmental Harm and State Responsibility: Customary

International Law. Retrieved from http://www.eolss.net/sample-chapters/c14/e1-36-

02-02.pdf

8Bodansky, Brunnee, and Hey. The Oxford Handbook of International Environmental

Law. Oxford University Press.

9

Tan. The Haze Crisis in Southeast Asia: Assessing Singapore’s Transboundary Haze

Pollution Act. February 2015. Retrieved from

http://law.nus.edu.sg/wps/pdfs/002_2015_Alan%20Khee-Jin%20Tan.pdf

10Brownlie, Ian. Principles of Public International Law (7th ed). 2008. Oxford

University Press.

11Mendis. Sovereignty vs. trans-boundary environmental harm: The evolving

International law obligations and the Sethusamuduram Ship Channel Project. 2006.

12COMEST. The Precautionary Principle. UNESCO. 2005. 8p retrieved from

http://unesdoc.unesco.org/images/0013/001395/139578e.pdf

13

Myers. The Rise of the Precautionary Principle. Multinational Monitor. September

2004. 9p retrieved from

http://www.glerl.noaa.gov/seagrant/ClimateChangeWhiteboard/Resources/

Uncertainty/climatech/meyers04PR.pdf

14 United Kingdom Interdepartmental Liaison Group on Risk Assessment (UK-

ILGRA). The Precautionary Principle: Policy and Application. Retrieved from

4

http://www.hse.gov.uk/aboutus/meetings/committees/ilgra/pppa.htm#ref5

15

Health and Safety Executive. Offshore Installations (Safety Case) Regulations 2005

Regulation 12 Demonstrating compliance with the relevant statutory provisions.

2006. 2p retrieved from http://www.hse.gov.uk/offshore/is2-2006.pdf

16 Moot Proposition’s Facts of the Case

17 BLACKS LAW DICTIONARY 1380 (6th ed., 1990)

18 In Ban Klang, Ban me, Sanpatong, Mae Rim and Donkaew

5

STATEMENT OF JURISDICTION

On 1 June 2015, the Republic of Megat and the Federal Republic of Luka submit to this

court the dispute concerning the Haze Crisis in Southeast Somchai pursuant Article 40 (1) of the

Statute of the International Court of Justice. In accordance with Article 36 of the ICJ statute, the

Parties shall accept any Judgement of the Court as final and binding upon them and shall execute

it in its entirety and in good faith. Immediately after the transmission of any Judgement, the

Parties shall enter into negotiations on the modalities for its execution.

6

Questions Presented

The Appellant impugns two issues for consideration,

1. Whether the Federal Republic of Luka violated international law by facilitating, allowing

and otherwise failing to prevent the 2013 haze crisis?

2. Whether the Federal Republic of Luka is responsible for the 2013 haze crisis and

therefore for compensation to the Republic of Megat for the damages caused?

7

Statement of Facts

The continent of Somchai has history of suffering under haze crises’. The Republic of

Megat and the Federal Republic of Luka are two of the fourteen states of Southeast Somchai.

Federal Republic of Luka is located at the East of the Republic of Megat.

After three more minor incidents of hazes in the region in the span of 2004 to 2010, the

members of the Association of Somchai’s Southeast Nations (ASSEN) ratified its Agreement on

Transboundary Haze. Only nine (9) states enacted a local legislation transforming the treaty into

a domestic law. These are: Anjadesh, Karo, Valenesia, Klarikistan, Neve, Pandia, Megat, North

Merida, and South Merida.

The on-going land reclamation projects of Megat expanded the country’s land area for

the past years. It has improved economically despite its limited natural resources, thus

developing into a wealthy nation. Azul City, located in the southwestern part of the island, is the

capital of Megat.

Luka has vast areas of wilderness that support one of the world’s largest, as well as

second highest, level of biodiversity. However, poverty remains widespread despite its abundant

natural resources. The country’s two main islands are Miguarta and Kalimartin. To protect its

forest, the Prime Minister James Nobres of the Federal Government of Luka passed a decree

called the Luka Forest Protection Law. Forest specifically designated as Protected Forest are

protected from exploitation, subject to some exceptions. The Lukan Ministry of Environment and

Natural Resources also issued regulations banning the slash-and-burn clearing method. Despite

8

these regulations, some small groups of local farmers and agricultural communities still perform

this method in small-scale.

Some incidents of forest operation or activities are as follows. A local community, called

Ifrit tribes who lived in the Moltres Forest, performs a fire ritual during July, the last month of

the rainy season, or the clearing season of the Ifrit calendar - of which is composed of four

seasons. The Ifrit community performs a fire ritual over small areas of land, including chants,

and dances while lighting animals, shrubs, and trees on fire. In addition to this, the Forest

Technical Services Corporation (FTSC) was granted by the Lukan government a franchise to

operate as a lumbering company, for lumbering and clear cutting at Moltres Forest in Palau

Province of Luka. The FTSC is a subsidiary of CapitaLand Corporation, a corporation organized

and operating in Megat.

From 2011 to 2013, four incidents of small scale slash-and-burn activities sparked

protests by environmental activities. On July 6, 2013, the National Aeronautics and Space

Administration (NASA) of Luka captured images of smoke from wildfires in Kalimartin. Due to

the monsoon winds, the haze from the wildfires was blowing towards west, affecting the

southern portion of Megat. In the 25th, the second quarterly report of Megatian Department of

Health reported an increase of respiratory illness cases. There was an increase of 20% in five

provinces in the southern part of the state, of which 30% of the cases resulted to death.

(investigation of the Megatian Pollution Control Agency)

In response to the NASA images, Lukan government conducted investigations. In August

24, 2013, Lukan authorities reported 139 hotspots of fires in the Kalimartin area, particularly in

the Moltres Forest, which is a good source of lumber for the country. The Moltres Forest in the

9

province of Palau in Kalimartin island, having not much biodiversity, has never been classified

as a protected forest in accordance with the Forest Protection Law.

President Bruce Quanyu of Megat called for an emergency meeting with the Association

of Somchai’s South-East Nations (ASSEN) to discuss possible solutions to the continuous

damaging effects of the Haze problems. During the meeting, Prime Minister Nobres made a

formal apology for the illness and deaths caused by the Haze coming from the wildfire. He then

stated that proper investigations concerning the haze were on-going and proper penalties are to

be imposed on the erring parties.

By October 20, 2013, Greg Garces, a forest ranger, reported that the monsoon winds

blowing west have intensified and fires are spreading faster than usual. Three days after said

report, Lukan authorities reported an increase in hotspots detected. Meantime, the Ministry of

Health of Megat reported an increase in respiratory illness to 40%. By October 30, Lukan

military personnel, as well as helicopters and aircraft were being deployed to fight the fires.

Lukan civilians also extended help.

10

Summary of Pleadings

The very nature of justice itself is in the fair and equal treatment of all its subjects, as

well as providing the means to equity between parties. As such, the Federal Republic of Megat,

as an appellant, pleads for the realization of the violation of international law by the Federal

Republic of Luka in allowing and otherwise failing to prevent the 2013 haze crisis. The said haze

had originated from Luka and had spread into the territory of Megat, making the Republic of

Luka responsible for the subsequent damages as per international law and the transboundary

haze agreement. Furthermore, regardless of whether or not the haze resulted from Luka’s

negligence, the responsibility of its containment and control belongs the territory in which the

haze originated from.

The Republic of Megat pleads for the indemnification of any and all damages caused by

the 2013 haze crisis to its state. The crisis had endangered and even cost the lives of innocent

citizens of the state, as well as leaving a considerable dent in the Republic’s economic ability.

For much of the time the haze existed, Megat had concentrated its efforts into reducing and

removing the engulfing haze. All of these had made Megat incur significant costs for a crisis

caused by a neighboring state. Under the rules of equity under the international law, as well as

the transboundary haze act, we can clearly say that Luka holds responsibility for the 2013 haze

crisis, as well as the subsequent violation of the transboundary haze act and the treaty obligations

attached along with it.

11

Main Pleading

I. The Federal Republic of Luka violated international law by facilitating, allowing

and otherwise failing to prevent the 2013 haze crisis

Under the Statute of the International Court of Justice, article 381 states that,

1. The Court, whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings

of the most highly qualified publicists of the various nations, as subsidiary

means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex

aequo et bono, if the parties agree thereto.

This article is regarded as the sources of international law where the court bases

its decisions. For the Republic of Megat and the Federal Republic of Luka, both parties

are bound by the following treaties and conventions: Charter of the United Nations;

Vienna Convention on the Law of Treaties; Stockholm Convention on Persistent Organic

Pollutants; and the Convention on Conversation of Nature in the South Pacific.

1 Statute of the International Court of Justice (1945), Article 38

12

Furthermore, being a member of Association of Somchai’s Southeast Nations (ASSEN),

both parties have ratified the Agreement on Transboundary Haze. These treaties and

conventions are the source of the parties’ obligations.

A. The Federal Republic of Luka facilitated, allowed, and otherwise failed to prevent

the 2013 haze crisis

The continent of Somchai has long been suffering from the haze crisis. Farmers of the

Southeast Somchai have been using the slash-and-burn clearing method, it being the cheapest

and the fastest method. However, this method has resulted in a thick haze blanketing the enitre

affected area. Such haze “impairs visibility and becomes a threat to respiratory health”. The thick

haze that eventually spread across the Southeast Somchai was caused by the slash-and-burn

clearing method. Furthermore, the appearance of El Nino, a dry weather and atmospheric

condition, aggravated the air pollution2.

Lukan territory has abundant natural resources composed heavily of forests. Under the

Luka Forest protection law, the country has allowed the exploitation of its forest provided that a

license is obtained and that the Indigenous People living in the forest are also allowed to exploit

the natural resources of said forest. Said law unfortunately provides of but a few restrictions on

these exploitations. By these acts alone, the Lukan government has implicitly consented to the

exploitation of the natural resources which would encourage abuse of these resources.

The Customary Environmental Law, or practice of states as international actors, may

have given a state the sovereign rights to exploit its natural resources, but such right is restricted

2 Ketteringsa, WibowOb, van NoordwijkC, Penot. Farmers' perspectives on slash-and-burn as a land clearing method for small-scale rubber producers in Sepunggur, Jambi Province, Sumatra, Indonesia. (1998) Retrieved from http://worldagroforestry.org/sea/Publications/files/journal/JA0132-04.pdf

13

when the “exploitation causes harm to the territory of a neighboring state”3. A state has the duty

to prevent transboundary harm as a result of the exploitation of its natural resources.

The use of slash-and-burn in forest areas is prevalent especially amongst the local

farmers and agricultural communities. Even though the slash-and-burn method is used by private

actors, these actors are not directly addressed by international law. Thus, a state, where these

private actors situate, have at least three different types of obligations in controlling this method,

namely: “obligations to refrain, obligations to prevent, and obligations to preserve”4. Although

the treaties and conventions are binding among the parties, each state party is obliged to facilitate

and regulate actions and activities within its border.

Despite the regulations issued by the Lukan Ministry of Environment and Natural

Resources, local farmers and agricultural communities still perform them said clearing act. This

is shown in the four incidents of small scale slash-and-burn activities which were protested by

environmental activists. The state is obliged to refrain from “transboundary environmental

harm”, such as the release of particular substances into the atmosphere. They are also obliged to

prevent the “environmentally harmful conduct of non-state actors”, or the private actors.

Following this would lead to the preservation of the ecosystem as well as its improvement and

protection5.

Although the Federal Republic of Luka may have taken steps to prevent the slash-and-

burn methodnby issuing regulations and agreements, it failed to provide alternatives for the

farmers and agricultural communities to take. Because if this, such prevention was not have

effective as shown by the continued practice of said method in small-scale.

3 Scwabach. Transboundary Environmental Harm and State Responsibility: Customary International Law. Retrieved from http://www.eolss.net/sample-chapters/c14/e1-36-02-02.pdf4 Bodansky, Brunnee, and Hey. The Oxford Handbook of International Environmental Law. Oxford University Press. 734p5 Ibid

14

The objective of the Stockholm Convention on Persistent Organic Pollutants6, in which

the Federal Republic of Luka is a signatory, is “to protect human health and the environment

from persistent organic pollutants.” Under Article 5 of said convention states that,

Each Party shall at a minimum take the following measures to reduce the total releases

derived from anthropogenic sources of each of the chemicals listed in Annex C, with the

goal of their continuing minimization and, where feasible, ultimate elimination:

(a) Develop an action plan or, where appropriate, a regional or subregional action

plan … subsequently implement it as part of its implementation plan … designed

to identify, characterize and address the release of the chemicals listed in Annex C

and to facilitate implementation of subparagraphs (b) to (e).

(b) Promote the application of available, feasible and practical measures that can

expeditiously achieve a realistic and meaningful level of release reduction or

source elimination;

(e) Promote, in accordance with its action plan, the use of best available

techniques and best environmental practices

Thus, from the said provision, the state is obliged to prevent the release of anthropogenic

sources and those pollutants coming from human activity, by banning the slash-and-burn

method. Furthermore, such state is also made to develop alternative action plans that these

private actors can take. It is not enough that the Lukan government issued regulations to address

6 Stockholm Convention on Persistent Organic Pollutions (2001)

15

the haze crisis. The Federal Republic of Luka failed to “control fires and the transboundary haze

that the fires caused”7.

B. State parties must adhere to the Treaty Obligations and perform the same in good

faith

A treaty does not bind a state if it has not consented or ratified it. Ratification,

acceptance, approval, and accession mean in each case the international act so named whereby a

State establishes on the international plane its consent to be bound by a treaty8. Although Luka

has not made the treaty or the Agreement on Transboundary Haze into its domestic law, it is still

bound by the treaty being a member of ASSEN and has ratified the same. Under Article 26 of the

Vienna Convention of the Law of Treaties, Every treaty in force is binding upon the parties to it

and must be performed by them in good faith9.

A treaty is an obligation “resulting from express agreement” among the parties who have

ratified it. Treaties that bind states are considered “particular international law” 10. A treaty,

regarded as an international law, creates legal obligations that governs future conduct of the

parties “in terms of legal propositions, and the obligations are basically the same for all

parties”11. ‘The treaties embody commitments that are binding at international law on

Governments, which are party to them’12.

An internationally wrongful act exists when one of the states who have ratified the treaty

violated the provisions therein. It is that conduct constitutes a breach of an international

7 Tan. The Haze Crisis in Southeast Asia: Assessing Singapore’s Transboundary Haze Pollution Act. February 2015. Retrieved from http://law.nus.edu.sg/wps/pdfs/002_2015_Alan%20Khee-Jin%20Tan.pdf 8 Vienna Convention of the Law of Treaties (1969). Article 29 Id, Article 2610 Brownlie, Ian. Principles of Public International Law (7th ed). 2008. Oxford University Press. 4p11 Id, 13p12 Mendis. Sovereignty vs. trans-boundary environmental harm: The evolving International law obligations and the Sethusamuduram Ship Channel Project. 2006. 17p

16

obligation of the State13. In the case at bar, the Federal Republic of Luka breached the Agreement

on Transboundary Haze when it facilitated, allowed, and otherwise failed to prevent the 2013

haze crisis. The principles outlined in the said Agreement, under article 3 said that the state has

the “sovereign right to exploit their own resources”. However, it also states that:

The Parties should take precautionary measures to anticipate, prevent and monitor

tranboundary haze pollution as a result of land and/or forest fires which should be

mitigated, to minimise its adverse effects. Where there are threats of serious or

irreversible damage from transboundary haze pollution, even without full scientific

certainty, precautionary measures shall be taken by Parties concerned. (x agreement)

In the underlying principles, a state has sovereignty over its territory but this is restrained

when it affects the territorial sovereignty and integrity of another or neighboring State. Even

without the “full scientific certainty” a state concerned should take measures to prevent

transboundary haze pollution as it would threaten or cause serious damages to other state/s. A

state party should have taken precautionary measures beforehand as established in General

Principle. The principle of territorial sovereignty is limited to the state’s duty as “good

neighbors”; as embodied in the maxim sic utere tuo ut alienum non laedas or “you should use

your property in such a way as not to cause injury to your neighbour’s”14.

The principle above stated incorporates the Precautionary principle (PP), which is “a

strategy to cope with scientific uncertainties in the assessment and management of risks” 15 and

13 Ibid14 Id, 8p15 COMEST. The Precautionary Principle. UNESCO. 2005. 8p retrieved from http://unesdoc.unesco.org/images/0013/001395/139578e.pdf

17

“lack of full scientific certainty”16 does not justify the acts of a state. The PP expresses the duty

of the state to take precautionary measures when an activity would harm or threaten to harm

human health. Merriam Webster defines precaution as an advanced care in order to “prevent

possible harm or trouble from happening in the future”17. Since the practice of the slash-and-burn

method have resulted to the haze crisis and shown to adversely affect the environment and the

health of the people, precaution should have been taken by Luka directed to the giving of license

and in its local farmers. Thus, in approving the license given to FTSC precautionary measures

should have been taken by Luka, such as conducting an environmental and company study and

whether the benefits of the company outweighs the damage it brings to the environment. Aside

from the FTSC license, precaution should also be taken against the local farmers, such as

supervising or prohibiting their exercise of the slash-and-burn method before matters got worse.

In the US, the Precautionary Principle has been applied in many of its areas. In Texas, a

group of residents use the principle in preventing United Copper Industries, a local copper wire

manufacturer, from obtaining an air permit which would allow the company to emit lead. The

residents point out “that a safer process was available and insisted that the wise course was not to

issue the permit,” instead of regulating the level of lead emissions, which would endanger

people’s health18. Los Angeles adopts the principle for the pesticide use. The Greater Los

Angeles School District created an Integrated Pest Management (IPM) to control pests without

using toxic chemicals. This was used by the Denton group in preventing the city to spray four

problem chemicals19.

16 Id, 11p17 Merriam Webster retrieved from http://www.merriam-webster.com/18 Myers. The Rise of the Precautionary Principle. Multinational Monitor. September 2004. 9p retrieved from http://www.glerl.noaa.gov/seagrant/ClimateChangeWhiteboard/Resources/Uncertainty/climatech/meyers04PR.pdf19 Id, 10p

18

The United Kingdom through its Interdepartmental Liaison Group on Risk Assessment

(UK-ILGRA) use this principle when there “good reason to believe that harmful effects may

occur to human, animal or plant health or to the environment”20. In the UK, it has the Health and

Safety at Work Act (HSWA) for the Offshore Installation (Safety Case). It requires duty holders

to ensure the “the health, safety and welfare at work of employees, and others” and requires the

strict adherence to the relevant statutory provisions21.

Since it has been recognized that a state’s territorial rights is restrained when it affects

neighboring state, article 4 of the Agreement on Transboundary Haze embodies the state’s

obligation “when the transboundary haze pollution originates from within their territories”.

Notwithstanding the measures that Luka took, farmers and agricultural communities have

continued to violate the agreement.

The 2010 decision of the ICJ in the Pulp Mills on the River Uruguay Case (Argentina v

Uruguay), the court noted that “the obligation to undertake an environmental impact assessment

where there is a risk that the proposed activity may have a significant adverse impact in a trans-

boundary context, has gained so much acceptance among States that it may now be considered ‘a

requirement under general international law’”22. The court held that Uruguay failed to comply

with the obligations imposed upon the states in the transboundary context when it fails to inform

Argentina in its plan to build the two pulp mills23.

20 United Kingdom Interdepartmental Liaison Group on Risk Assessment (UK-ILGRA). The Precautionary Principle: Policy

and Application. Retrieved from http://www.hse.gov.uk/aboutus/meetings/committees/ilgra/pppa.htm#ref521 Health and Safety Executive. Offshore Installations (Safety Case) Regulations 2005 Regulation 12 Demonstrating compliance with the relevant statutory provisions. 2006. 2p retrieved from http://www.hse.gov.uk/offshore/is2-2006.pdf

22 ICJ makes ruling on environmental protection – Pulp Mills on the River Uruguay (Argentina v Uruguay). 2010. Retrieved

form http://hsfnotes.com/arbitration/2010/05/07/icj-makes-ruling-on-environmental-protection-pulp-mills-on-the-river-uruguay-argentina-v-uruguay/

23 The Hague Justice Portal. Pulp Mills on the River Uruguay (Argentina v. Uruguay). 2010 retrieved from

http://www.haguejusticeportal.net/index.php?id=6180

19

In the case at bar, assuming that the Federal Republic of Luka did not violate

international law with respect to actions related to the 2013 haze crisis as it was not caused by

any state organ, the country is still responsible for the actions of the people within its

jurisdiction. This notion can be found in the jurisprudence of international law cases.

With regards to the limited territorial rights or sovereignty, the ICJ stated in the Corfu

Channel case that “every state has an obligation not to knowingly allow its territory to be used

for acts contrary to the rights of other states”24. Base from the facts, the issuance of license by the

Lukan government indicates that it has allowed the licensee to exploit its natural resources and

any actions of the licensee that may violate the transboundary agreement is accounted against

Luka.

In the trail smelter arbitration case, the ICJ held that it is a state’s responsibility to protect

other states from harmful acts of individuals within such state’s jurisdiction. A state has the duty

to protect neighboring or other states and their respective territories. The main argument laid

down in said case is the “duty to protect other states against harmful acts by individuals from

within its jurisdiction at all times is the responsibility of a state”25

24 Corfu Channel Case (United Kingdom v. Albania). 1949. Retrieved from http://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-damrosche/chapter-4/corfu-channel-case-united-kingdom-v-albania/25 Trail Smelter Case (United States v Canada). 1941. Retrieved from http://legal.un.org/riaa/cases/vol_III/1905-1982.pdf

20

II. The Federal Republic of Luka Is Responsible for the 2013 Haze Crisis that

caused severe economic and Health Problems for the People of the Republic of

Megat and must correspondingly pay compensation for the damages Caused.

The two significant events prior to the breakout and widespread of Haze Pollution in the

region are outlined as follows:

On 6 July 2013, the Lukan Government received the images from NASA showing

captured images of smoke wildfires originating from their territory, specifically in Luka’s

eastern main island of West Kalimartin.26

On 24 August 2013, after investigations, the report of the Lukan authorities

wherein 139 hotspots of fires yield to no effective measures to mitigate the risk of haze.

There were no follow-up investigations conducted regarding the extent of damages, not

even a review on the franchise agreement between Luka and Lumbering Companies on

whether or not it is properly followed or implemented.27 The authorities have not

punished the perpetrators, otherwise there should have been reports of penalized

companies;28

A. The Forest Fire in the Moltres Forest of West Kalimartin is the cause of the

Haze that eventually reached the Republic of Megat.

Noting that the cause of the Haze is the forest fire in the Moltres Forest of West

Kalimartin, the Federal Republic of Luka is responsible for the natural, logical and direct

consequences of acts done within its jurisdiction because every right entails responsibility. Every

state has the responsibility to protect the environment. Thus, whenever a State breaches its

26 Moot Proposition’s Facts of the Case, Schedule A, Par. 9 27 Id. at Par. 14 & 1728 Id. at Par. 21 & 22

21

obligations such as preventing harmful or injurious consequences of certain lawful acts within its

jurisdiction, state responsibility apply. This is expressed in the case of lake Lanoux Arbitration

and the Corfu Channel case involving failure of State to warn imminent danger in an area within

its jurisdiction that was normally safe for international navigation.

The wind that carried the haze to Megat, though reported by the Lukan authorities as

caused by force majeure during such inevitable weather changes, is predictable and thus its

possible harmful effects can be controlled or mitigated, if not totally prevented. Thus,

inevitability is not an excuse for Luka. Under international law, for an occurrence to be force

majeure, (a) it must be irresistible, (b) unforeseeable, and (c) external to the party relying on it.

Haze as a result of forest fires, although irresistible especially during El Niño, is foreseeable as

this has been an ongoing problem for the past decades.

The general principles of international law and customary law recognize the principle of

good neighborliness and sic utere tuo ut alienum non laedas which means “use your property in

such a way as not to harm others,”29 In the case at bar, the results of Luka’s use of property hold

them liable for the damages. This concept of liability is expressed in the Trail Smelter Case, 30 the

Lake Lanoux Arbitration,31 the Corfu Channel Case,32 and the Settlement of gut Dam claims.33

Likewise, Luka conducted insufficient preventive measure when, as of July 2013 report it

was revealed that there are 139 hotspots in the territory, this increased to 170 hotspots according

to October 2013 report34. The country remains a main contributor of haze pollution and fails to

29 BLACKS LAW DICTIONARY 1380 (6th ed., 1990).30 US vs Canada31 France vs Spain32 Uk vs Albania, the Court ruled that Albania is responsible because “nothing was attempted by the Albanian authorities to prevent the disaster. These grave omissions involve the international responsibility of Albania based on its failure to warn ships near the danger zone…whereas the ICJ reserved the assessment of compensation for a separate judgement.33 US vs Canada34 Moot Proposition’s Facts of the Case, Schedule A, Par. 14 & 26

22

mitigate its harmful effects in contrast with other countries continuously act on solving haze

problems and controlling forest fires such as Thailand and Singapore.

In Thailand, several provinces prohibit open burning.35 To solve haze problems and

control forest fires, decisions on response and strategy at the grass-root level are made in the

level of community and village agreement. In one district anyone who cut one tree must plant 10

trees to compensate (Rayanakorn, 2010). Urban people agreed to minimize the burning of

garbage and tree leaves to promote compost making. Campaign for ‘burning-free village’ was

implemented among communities where a successful model was portrayed by the community of

Ban Samkha in Hua Sua Sub-district of Mae Tha District of Lampang. Instead of the

conventional slash-and-burn farming, weed plowing is an alternative model for farming which is

now practiced to grow vegetables and crops in Thailand (Tiyapairat, 2012). To minimize forest

fires and haze pollution a biomass powerplant in Chiang Rai province was built to provide green

and renewable energy. Finally, Green Energy business is widely encouraged among cooperatives

and community enterprises.

In Singapore, in order to promote clean air, the government developed innovative ways to

manage industries to promote environmental technology, certify environmental management

systems, encourage the use of cleaner energy, e.g., solar energy, and require industry to plant

trees or undertake measures to mitigate their carbon dioxide emissions. Particularly, drivers are

not allowed to keep their engines running when waiting for passengers, companies are given

incentives in using solar and wind energy, the county import electricity from local and foreign

companies who only produce by cleaner energy sources such as hydro-power and natural gas,

cycling as alternative mode of transportation and so much more (Koh Kheng-Lian, 2002).

35 In Ban Klang, Ban me, Sanpatong, Mae Rim and Donkaew

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B. The Federal Republic of Luka failed to exercise due diligence in preventing the

forest fires from raging in the Motres Forests. Likewise, the State is negligent in

mitigating its effects after its discovery.

The state has no local legislation evidence of mechanisms in place pertaining specifically

forest fire prevention. Although Luka is not a signatory of the Agreement on Transboundary

Haze but the State is obligated under Article 35 of the VCLT as a third party State to respect the

rights of its neighboring countries who conduct measures in combatting Haze pollution in the

region.36

Both states in pacta sunt servanda is bounded by its treaty obligations to perform all

necessary measures in order to mitigate, if not completely eradicate haze pollution and its

transboundary effects in the region. In the case of Luka’s negligent acts in mitigating the effects

of forest fires after discovery, the state becomes liable to damages. As a result of the

transboundary pollution, on July 25, 2013, the Department of Health of Megat reported 20%

increase in cases of respiratory illnesses, 30% of which resulted in death.37 Before this report, it

was preceded by the July 6, 2013 NASA report of smoke from wildfires coming from the Lukan

territory and capturing images of the event. However, with failure to exercise due diligence, it

resulted in the increase of cases of respiratory illnesses in Megat by 40%.38

Also, Luka and Megat, both signatories of the Stockholm Convention on Persistent

Organic Pollutants recognize that persistent organic pollutants transported through air, water and

migratory species, across international boundaries is harmful .39 In the instant case concerning

Haze pollution, it resulted to transboundary damages. This happening should have been 36 Article 35 of the VCLT states that an obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing.37 Moot Proposition’s Facts of the Case, Schedule A, Par. 1038 Id. at Par. 2739 This Convention recognizes, as set forth in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Convention is to protect human health and the environment from persistent organic pollutants.

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prevented if local legislations enacting the purpose of the Convention was passed and executed.

This act is an evident neglect of duty on the objectives of the abovementioned convention.

The VCLT sets forth the legal consequences of a treaty obligation breach.40 Its initial

failure in observing the Stockholm Convention on Persistent Organic Pollutants particularly on

the transboundary haze pollution holds Luka legally responsible to reparations. It is principle of

international law that the breach of an engagement involves an obligation to make reparation in

an adequate form. In the Trail Smelter Case, the Court held Canada liable for the damage caused

to crops, trees, etc. in the US state of Washington and fixed the amount of compensation to be

paid. In the Corfu Channel Case, the Court held Albania responsible for the damage to the

warships and the loss of life of the British sailors and accordingly determined the amount of

compensation to be paid.

40 Vienna Convention on the Law of Treaties, opened for signature on May 23, 1969, entered into force on January 27, 1980.

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Conclusion

The very nature of justice itself is in the fair and equal treatment of all its subjects, as

well as providing the appropriate penalty to be prescribed to any offending parties. Such is the

way society operates under to maintain the balance and prevent the possibility of abuse and harm

on one another. However, such harm has already been incurred by the Megat government – in

the form of a haze that had negatively affected the area. The resulting crisis caused numerous

civilian casualties and fatalities, as well as a major reduction to the area’s economic and

industrial capacity. Since evidence is present of how the haze originated from Luka, their

government is thereby responsible for the haze crisis. Various international laws dictate the

obligations that governments hold in regards to their environment, as well as the repercussions

that come with breaking these obligations.

Luka is wholly responsible for the management of its factories – of which one was the

cause of the haze. Even with the various laws on this, the fact that a haze had been effected

shows the disregard their government had with regards to their transboundary impact. This is

further compounded by the lack of immediate action on their part, as well as a failure to contain

said haze. We pray for the courts to realize the responsibility that Luka had on the Haze crisis.

Furthermore, we pray for the damages and loss incurred by Megat due to the said crisis to be

borne by the government of Luka.

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Prayer for Relief

In sum, the Federal Republic of Megat, as an appellant as well as a relevant and affected

party, humbly requests the International Court of Justice to take notice of the issues and facts

cited herein, and adjudge and declare that:

1. The Federal Republic of Luka violated international law by allowing, and

otherwise failing to prevent the 2013 haze crisis.

2. The Federal Republic of Luka is responsible for damages caused by said haze.

3. The Federal Republic of Luka is obligated to indemnify the Federal Republic of

Megat on the damages the latter incurred from the said haze.

The Honorable court is also free to dispense with any other order as they may deem fit in

the spirit of lawful justice, equity and good conscience.

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