Respondent 1 Speech

7/28/2019 Respondent 1 Speech

1/4

RESPONDENT 1 SPEECH

Good day your Excellencies. I am Samantha Tirthdas, agent for the respondent the Republic of

Redox. We come before this honorable court today with two submissions.

Foremost, that Redox has NOT violated international law on transboundary harm.

And Secondly, that the proposed controlled burn is within the sovereign right of Redox to

utilize its own resources.

I will be discussing the first submission for 16 minutes and my co-agent Railla Puno will be

discussing the second submission for 14 minutes.

If the court no longer has any preliminary observations, I shall proceed, may it please the court.

In support of our first submission,

I would like to discuss my first main argument, that

Redox is NOT bound by the HRA and has on good faith NOT defeated the object and

purpose of the HRA.

Simple signature, absent the ratification of Redox is NOT consent to be bound by the HRA.

None of the situations under Article 12 of the Vienna Convention Law of Treaties in which

signature is tantamount to consent to be bound to a treaty is present in the case at bar. The HRA

does not expressly provide that mere signature binds a state as a party, NOR can it be established

that the negotiating states in the Heinz region agreed to give mere signature such binding effect.

There is likewise no showing that Redox expressed during negotiations any intent to be bound by

mere signature.

Thus the obligation of Redox as a signatory to the HRA is limited to an obligation NOT to defeat

the object and purpose of a treaty prior to its entry into force as stated in Article 18 of the Vienna

Convention on the Law of Treaties.

Redox has in good faith complied with its obligation NOT to defeat the object and purpose of the

HRA. What distinguishes a signatory from a party to a treaty is precisely the extent of its legal

obligations a party to a treaty is legally bound to comply with the treatys obligations andprovisions while a signatory is NOT legally bound by a treaties specific provisions. The

obligation imposed by Article 18 is NOT an affirmative duty to execute treaty provisions but

rather a passive duty to refrain from acts which would subsequently impair the carrying out of

the HRA.


2/4

As supported by the Official Records of the UN Convention on the Law of Treaties, the

threshold to be met in defeating the object and purpose of a treaty is when acts make the

subsequent performance of treaty rendered meaningless or inoperative. None of the acts imputed

to Redox have impaired the carrying out of the HRA provisions by the treaty parties. As

supported by paragraph 10 of the record, all the parties to the HRA have been able to rigorously

enforce and comply with the provisions of the HRA. Similarly should Redox subsequently ratify

the HRA, none of the acts imputed to it will prevent Redox from subsequently performing the

treaty obligations of the HRA thus it does NOT render the HRA meaningless or inoperative.

The assertion of Abelii that the obligation imposed by Article 18 requires Redox to take

affirmative action in the prevention of transboundary haze would render ratification superfluous

by completely dispensing with the need for ratification. The institution of ratification grants

states the necessary time-frame to seek the required approval for the treaty on the domestic level

and to enact the necessary legislation to give domestic effect to that treaty as most Federal

governments such as Redox require ratification as a check-and-balance mechanism to ensure that

its state representatives to treaty negotiations do NOT exceed the extent of their authority. Thus

it can be said that when a treaty such as the HRA requires ratification it recognizes that

ratification is of fundamental importance to the treaty making process.

Now moving on to my second main argument, that

The provisions of the HRA do NOT form regional customary norm and as such are not

binding upon Redox

This honorable court has been constant in ruling that a customary rule must contain both of the

two essential elements namely State Practice and Opinio Juris. This honorable court stated inparagraph 74 of the North Sea Continental Shelf Case that practice must be both extensive and

uniform in order to constitute state practice. The HRA does NOT specifically prescribe specific

and uniform measures and only obligates parties to develop their own legislative and

administrative measures to prevent and monitor transboundary haze.

Even if we were to consider the practices of the other states in Heinz Region as state practice, the

element of opinion juris is sorely lacking.

In establishing regional customary norms, the standard of proof is higher than in cases where

only a general rule is alleged. ALL the states within the region MUST have consented to the rule;

positive acceptance of all the parties to the rule is indispensible. Redox has never made such a

positive acceptance.

In the Asylum case between Columbia and Peru, Columbia was asserting that the 1911 Bolivian

agreement and the 1928 Havana Convention had formed a regional customary norm in Latin

America. There the court held that Columbia failed to prove that uniform usage was practiced by


3/4

states and that such usage is an expression of a duty incumbent on the states DISTINCT from

obligations to the treaty.

Similarly Abelii has likewise failed to show that the actions of the states in the Heinz region was

out of sense of duty DISTINCT from the treaty obligations of the HRA. As reflected in

paragraph 10 of the record, the states in the Heinz region on enacted the provisions of the HRAAFTER they ratified the HRA and the treaty entered into force. This clearly illustrates that the

states acted NOT because of a sense of obligation to a customary norm but rather they were

acting merely in compliance with their treaty obligations as state parties to the HRA.

Moving on to my third main argument, that

Redox did not violate the customary rule on the prevention of transboundary harm by

complying with the requisite standard of due diligence.

One of the conditions which must exist for damage to constitute significant transboundary harm

is the physical relationship between the imputed activity and the damage. The alleged damage to

GDP via tourism does not satisfy this condition. When the ILC embarked on the topic of

International Liability for Injurious Consequences Arising from Acts NOT prohibited by

international law, the ILC along with the approval of the General Assembly decided NOT to

include economic and financial activities specifically excluding activities which may cause

although may cause damage across a border are NOT of a physical character. Thus although a

reduction in GDP may be tangible, it is not physical in form and does NOT fall under the

obligation to prevent transboundary harm.

BUT even assuming arguendo that GDP loss may fall under the obligation to prevent

transboudary harm, Redox did NOT breach this obligation as it has complied with the requisites

standards of due diligence. As established by paragraph 101 of this courts decision in the Pulp

Mills Case, in compliance with the customary rule of prevention of transboundary harm, the

standard of care required is that of due diligence. In order to meet this standard, Redox must

have done what another similarly situated government would do in that situation. Due diligence

leaves room for states to determine which measures are necessary, appropriate, feasible, and

available within their capacities to achieve the given objective because the observation of this

obligation can differ from well-developed and developing states. As supported by paragraph 3 of

the record, Redox is a developing country with a population of approximately 20 million people,

as such it could not have been expected to have the resources to employ sophisticated andexpensive mechanisms to completely guarantee that harm would be completely prevented even if

we were to assume that the absolute prevention of harm is even possible. Redox had done

everything within its capacities to meet the standard of due diligence. As supported by the

Clarifications to the Record at Question 6, each province in Redox has had provincial laws

prohibiting ANY type of outdoor burning without a permit since the late 1980s. And as

supported by the record at paragraph 14, Redox has investigated, prosecuted, and penalized the


4/4

arsonists who caused the second fire. Moreover as supported by the record at paragraph 23, there

are mechanisms for the regulation of government-permitted controlled burns which require

Environmental Impact Assessments to assure that no transboundary haze will result from the

controlled burn.

In sum your excellencies, Redox has not violated international law on transboundary harmbecause Redox has complied with its obligation NOT to defeat the object & purpose of the HRA

and more importantly because Redox has complied with its obligation of prevention of

transbounadary harm by its exercise of the requisite due diligence required by international

customary law.

We therefore pray for this honorable court NOT to punish Redox for an imputed wrong that it

clearly did NOT commit.

Documents

Respondent 1 Speech