Stetson Law -- 1999 International Environmental Moot Court Problem

Kingdom of Augustine v. Republic of Vinoy

RECORD

[ Record Page 1 ]

NOTIFICATION, DATED 8 JULY 1999, ADDRESSED TO THE MINISTER FOR FOREIGN AFFAIRS FOR THE KINGDOM OF AUGUSTINE AND THE SECRETARY OF STATE FOR THE REPUBLIC OF VINOY

The Hague, 8 July 1999.

On behalf of the International Court of Justice, and in accordance with Article 26 of the Rules of Court, I have the honor to acknowledge receipt of the joint notification dated 4 July 1999. I have the further honor to inform you that the case of Kingdom of Augustine, Applicant v. Republic of Vinoy, Respondent has been entered as 1999 General List No. 104. The written proceedings shall consist of memorials to be submitted to the Court by each Party on or before 8 October 1999. Oral proceedings are scheduled for 29-30 October 1999.

/s

Registrar
International Court of Justice

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JOINT NOTIFICATION, DATED 4 JULY 1999,
ADDRESSED TO THE REGISTRAR OF THE COURT

The Hague, 4 July 1999.

On behalf of the Kingdom of Augustine and the Republic of Vinoy, and in accordance with Article 40, paragraph 1, of the Statute of the International Court of Justice, we have the honor to transmit to you an original copy of the English texts of the Special Agreement Between the Kingdom of Augustine and the Republic of Vinoy for Submission to the International Court of Justice of Differences Between Them Concerning the Transboundary Movement of Hazardous Waste, signed at Tallinn on 15 June 1999.

For the Kingdom of Augustine:	For the Republic of Vinoy:
/s/ Minister for Foreign Affairs	/s/ Secretary of State

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SPECIAL AGREEMENT
BETWEEN
THE KINGDOM OF AUGUSTINE
AND
THE REPUBLIC OF VINOY
FOR SUBMISSION TO THE
INTERNATIONAL COURT OF JUSTICE
OF DIFFERENCES BETWEEN THEM
CONCERNING
TRANSBOUNDARY MOVEMENT OF HAZARDOUS WASTE

The Kingdom of Augustine and the Republic of Vinoy,

Recalling that the Kingdom of Augustine and the Republic of Vinoy are members of the United Nations and that the Charter of the United Nations calls on members to settle international disputes by peaceful means,

Recognizing that differences have arisen over the transboundary movement of hazardous waste by a company incorporated under the laws of the Republic of Vinoy, and the effect of such movement in the Kingdom of Augustine,

Acknowledging that differences have arisen over the decision by the Kingdom of Augustine to ban all shipments of hazardous waste from the Republic of Vinoy,

Noting that the Parties have been unable to settle their differences through negotiation,

Desiring that the International Court of Justice, hereinafter referred to as the Court, resolve these differences,

Desiring further to define the issues to be submitted to the Court,

Have agreed as follows:

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Article I

The Parties shall submit the questions contained in Annex A of this Special Agreement to the Court pursuant to Article 40, paragraph 1, of the Statute of the International Court of Justice.

Article II

1. The Parties shall request the Court to decide this matter on the basis of the rules and principles of general international law, as well as any applicable treaties.

2. The Parties shall also request the Court to decide this matter based on the Agreed Statement of Facts, which is attached as Annex A.

3. The Parties shall also request the Court to determine the legal consequences, including the rights and obligations of the Parties, arising from its Judgment on the questions presented in this matter.

Article III

1. The proceedings shall consist of written pleadings and an oral hearing.

2. The written pleadings shall consist of memorials to be submitted simultaneously to the Court by the Parties.

Article IV

1. The Parties shall accept the Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.

2. Immediately after the transmission of the Judgment, the Parties shall enter into negotiations on the modalities for its execution.

3. If the Parties are unable to reach agreement within six months, either Party may request the Court to render an additional Judgment to determine the modalities for executing its Judgment.

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Article V

This Special Agreement shall enter into force upon signature.

DONE at Tallinn, this fifteenth day of June 1999, in two copies, each in the English language, and each being equally authentic.

For the Kingdom of Augustine:	For the Republic of Vinoy:
/s/ Minister for Foreign Affairs	/s/ Secretary of State

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ANNEX A
AGREED STATEMENT OF FACTS

1. The Kingdom of Augustine is a developing country. It is not a member of the Organisation for Economic Co-operation and Development (OECD).

2. The Republic of Vinoy is a developed country. It is a member of the OECD.

3. Both nations are parties to the Vienna Convention on the Law of Treaties and the United Nations Convention on Biological Diversity.

4. Both nations are signatories to the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development.

5. The Republic of Vinoy is a party to the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The Kingdom of Augustine is not a party to the Convention. [NOTE: For purposes of this Competition, assume that the Convention on Combating Bribery entered into force on 15 February 1997.]

6. The Kingdom of Augustine is a party to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the Basel Convention).

7. In Geneva in 1995, the Third Conference of the Parties to the Basel Convention adopted Decision III/1. Decision III/1 contains an amendment that, when it enters into force, will prohibit the movement of hazardous waste from OECD countries to non-OECD countries (Article 4A). The Kingdom of Augustine has ratified Article 4A.

8. The Republic of Vinoy has signed, but not ratified, the Basel Convention. Because it is not a party to the Basel Convention, the Republic of Vinoy did not formally participate in the adoption of Decision III/1.

9. The Basel Convention generally prohibits parties from exporting covered wastes to or importing covered wastes from non-parties. Article 11 of the Basel Convention permits such exports and imports where such activities are governed by an appropriate bilateral, multilateral, or regional agreement. The Kingdom of Augustine and the Republic of Vinoy entered into the Bilateral Agreement on Transboundary Hazardous Shipments (BATHS) in 1992. BATHS was an agreement that expressly allowed, subject to export and import permits, the movement of wastes covered by the Basel Convention between the Kingdom of Augustine and the Republic of Vinoy.

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10. The Kingdom of Augustine has entered into two other bilateral agreements with Basel Convention non-parties: the 1990 Convention between Augustine and Deland (CAD) and the 1991 Treaty between Augustine and Pinellas (TAP). CAD and TAP specify that the Kingdom of Augustine will accept hazardous waste exports from the countries of Deland and Pinellas, respectively, solely for the purpose of recycling or recovery operations. CAD and TAP currently remain in force.

11. The Kingdom of Augustine and the Republic of Vinoy are members of the World Trade Organization (WTO). Accordingly, both nations are parties to the 1994 General Agreement on Tariffs and Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures. Deland and Pinellas are also WTO members.

12. From 1996-97, FormPlast, Inc., a petrochemical company doing business in and incorporated under the laws of the Republic of Vinoy, produced 4,500 metric tons of mercury-laden sludge within the territory of the Republic of Vinoy.

13. In December 1997, FormPlast officials illegally paid a Republic of Vinoy customs official $25,000 (USD) to improperly classify the sludge as non-hazardous construction debris. The Republic of Vinoy customs officials granted an export permit.

14. In January 1998, FormPlast officials illegally paid Kingdom of Augustine customs officials $1 million (USD) to issue an import permit for the mercury-laden sludge.

15. FormPlast packed the 4,500 metric tons of mercury-laden sludge in large plastic shipping bags. The shipping bags contained no warnings regarding their content and, in February 1998, were shipped to Khemboville, a port town in the Kingdom of Augustine, which is known for its resort beach. The population of Khemboville is 20,000. Tourists that visit Khemboville's beach contribute approximately $5 million (USD) annually to the local economy.

16. After dock workers unloaded the shipping bags, the shipping bags were dumped in a low-lying field in Khemboville.

17. Residents of Khemboville quickly emptied the mercury-laden sludge from the shipping bags to use the bags for tents, canopies, and bedding. The bags were also used for storing rice.

18. Dozens of residents used their teeth to open the shipping bags to extract the bags' strings. The strings were used as clotheslines and to fasten oxcarts.

19. Two male dock workers, ages 28 and 35, who unloaded the shipping bags, developed severe headaches and vomiting, and died two days later.

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20. A healthy male resident of Khemboville, age 17, died from a seizure he suffered after using a shipping bag for bedding.

21. On 10 March 1998, two representatives from Human Watch, a human rights organization, announced at a Khemboville town meeting that the shipping bags contained hazardous waste. After heated discussions with town officials, fighting broke out at the meeting. As word spread about the content of the shipping bags, a riot occurred in Khemboville.

22. During the riot, residents destroyed the Kingdom of Augustine's customs building and the home of Khemboville's Deputy Governor. Damage to the customs building was $1.2 million (USD), and damage to the Deputy Governor's house was $300,000 (USD).

23. When residents of Khemboville learned about the content of the shipping bags, over fifteen thousand attempted to evacuate the area. During this evacuation, six residents were killed in vehicular accidents.

24. At the request of the Kingdom of Augustine, the World Health Organization (WHO) was invited to inspect the field where the shipping bags were deposited. The WHO determined that the sludge contained mercury concentrations of 1.8 micrograms per gram (µ g/g). Normal mercury levels in soil range from 0.05 - 0.08 µ g/g.

25. In accordance with BATHS, the Kingdom of Augustine requested that the Republic of Vinoy arrange for the re-import of the 4,500 metric tons of hazardous waste and any contaminated soil to the Republic of Vinoy. The Republic of Vinoy complied with this request.

26. The Kingdom of Augustine prosecuted four Kingdom of Augustine customs officials for accepting bribes. These officials were convicted, sentenced to serve 15 years in prison, and each fined $500,000 (USD).

27. The Republic of Vinoy prosecuted one Republic of Vinoy customs official for accepting a bribe. This official was convicted, sentenced to a one year prison term, which was suspended, and ordered to perform 500 hours of community service. The maximum penalty was a ten year prison term and a $1 million (USD) fine.

28. The Kingdom of Augustine requested that the Republic of Vinoy bring a criminal action against FormPlast for its actions. In exchange for not indicting FormPlast or its officers for bribing a Republic of Vinoy official, FormPlast agreed to donate $500,000 (USD) to the Vinoy Environmental and Scientific Cooperative Organization (VESCO), a not-for-profit corporation engaged in environmental remediation activities in Vinoy.

29. The Republic of Vinoy declined to prosecute FormPlast for bribery of foreign public officials, stating that its laws do not apply to such conduct.

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30. On 30 August 1998, the following diplomatic note was forwarded to the Republic of Vinoy:

The Embassy of the Kingdom of Augustine presents its compliments to the Government of the Republic of Vinoy and has the honor to respectfully request that the Republic of Vinoy enter into consultations with the Kingdom of Augustine to discuss compensation concerning the FormPlast incident.

The Kingdom of Augustine notes that the Stockholm Declaration on the Human Environment and the Rio Declaration on Environment and Development provide that states have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states. This customary duty to avoid transboundary harm is now enshrined in binding international agreements, such as the Convention on Biological Diversity and the Basel Convention. A concomitant international legal principle is that a breach of a duty invokes an obligation to make reparations. It is the view of the Kingdom of Augustine that reparations or compensation is appropriate in this matter.

As an initial matter, the Kingdom of Augustine observes that FormPlast, Inc. is a legal person under the control and jurisdiction of the Republic of Vinoy. FormPlast illegally enticed a Republic of Vinoy government official to fraudulently issue an export permit that caused hazardous waste to enter the territory of the Kingdom of Augustine. The Republic of Vinoy has not satisfied its international obligations to prevent such actions from occurring. For example, the Kingdom of Augustine notes that the Republic of Vinoy has not fulfilled its duties required by The Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

The illegal export of hazardous waste to the Kingdom of Augustine resulted in serious damages. In addition to an injury to the sovereignty of the Kingdom of Augustine, several individuals have died as a direct result of the illegal export, including dock workers, a Khemboville resident exposed to the hazardous waste, and six people attempting to evacuate the area. The Kingdom of Augustine must now institute a medical monitoring program for those Khemboville residents who were exposed to the hazardous waste, a program that is estimated to cost over $5 million (USD). Additionally, as a result of the presence of the hazardous waste, a civil disturbance caused more than $1.5 million (USD) in property damage. Finally, the Kingdom of Augustine notes that adverse publicity relating to this incident has destroyed Khemboville's tourist industry.

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The Kingdom of Augustine looks forward to resolving these issues in an expeditious and equitable manner.

Please accept the assurance of my highest consideration.

/s/

M. Fahy
Ambassador

31. On 10 September 1998, the following diplomatic note was forwarded to the Kingdom of Augustine:

The Embassy of the Republic of Vinoy presents its compliments to the government of the Kingdom of Augustine and has the honor to acknowledge receipt of the diplomatic note dated 30 August 1998.

While the Republic of Vinoy regrets the loss of life in the Kingdom of Augustine, the Republic of Vinoy suggests that no compensation is appropriate in this case. First, the Bilateral Agreement on Transboundary Hazardous Shipments contains no liability provisions. Second, the Basel Convention, a treaty to which the Republic of Vinoy is not a party, contains no liability provisions.

The Republic of Vinoy notes that it has expeditiously accepted back the hazardous waste along with the contaminated soil. The Republic of Vinoy vigorously prosecuted those Republic of Vinoy persons responsible to the fullest extent permitted by its national laws. The Republic of Vinoy submits that these actions have fulfilled any legal duties that may be owed to the Kingdom of Augustine.

Please accept the assurance of my highest consideration.

/s/

K. Aosiung
Ambassador

32. After additional exchanges of correspondence, on 24 November 1998, the Kingdom of Augustine terminated BATHS in accordance with its terms.

33. On 25 November 1998, the Kingdom of Augustine enacted the Basel Convention Implementation Act (BCI Act). The text of the BCI Act is as follows:

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§ 1. Findings

The Parliament makes the following findings:

(a) The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal prohibits parties from importing covered wastes from non-parties in the absence of an appropriate international agreement.

(b) The Third Conference of the Parties to the Basel Convention adopted an amendment that prohibits the movement of hazardous waste from members of the Organisation for Economic Co-operation and Development to non-member countries.

(c) The Kingdom of Augustine, its territory, and its people have suffered serious injury from the illegal importation of hazardous waste from the Republic of Vinoy.

§ 2. Prohibition on the importation of hazardous waste

(a) The importation of any hazardous waste produced within the Republic of Vinoy is hereby prohibited.

(b) The importation of any hazardous waste that is or has been located in the Republic of Vinoy is hereby prohibited.

(c) For purposes of this Act, the term "hazardous waste" shall be given the same meaning as the term "hazardous wastes" in the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal.

34. As a result of the termination of BATHS and the Kingdom of Augustine's domestic legislation, the Republic of Vinoy may no longer export hazardous waste to the Kingdom of Augustine. The Republic of Vinoy asserts that such a prohibition on international trade violates international law, specifically Articles I and XI of the GATT.

35. On 1 December 1998, the Kingdom of Augustine and the Republic of Vinoy entered into formal negotiations in an effort to resolve their differences. After many months of negotiations, no resolution was forthcoming and the two countries agreed to submit this dispute to the International Court of Justice.

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36. The Kingdom of Augustine opposes the claim in paragraph 37 of this Annex and seeks an order of the Court declaring that international law requires the Republic of Vinoy to pay reparations for the damage suffered by the Kingdom of Augustine as a result of the illegal shipment of hazardous waste.

37. The Republic of Vinoy opposes the claim in paragraph 36 of this Annex and seeks an order of this Court that the Kingdom of Augustine's prohibition on the importation of hazardous waste from the Republic of Vinoy is contrary to international law.