In the Chorzow Case, Permanent Court of International Justice established that violating any international obligation brings about a responsibility to compensate regardless of the content of the convention. Vinoy has acted against several international agreements and is thus responsible to compensate the harm caused to Augustine. In addition, in the cases of Corfu Channel and Trail Smelter compensation was paid for damage caused to another State.
H. Vinoy violates its duties under Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
As a party to the Convention, Vinoy has a responsibility according to article 1 to take such measures as may be necessary to establish that it is a criminal offence under its law for any person intentionally to offer, promise or give any undue pecuniary or other advantage to a foreign public official in order that the official act or refrain from acting in relation to the performance of official duties, in order to obtain or retain business or other improper advantage in the conduct of international business. In addition, according to article 2 of the Convention, Vinoy has a duty to take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons for the bribery of a foreign public official. Article 3 of the Convention demands that the punishments for the bribery of foreign officials shall be effective proportionate and dissuasive criminal penalties.
Vinoy has declined to prosecute FormPlast. It argues that it has taken necessary measures and prosecuted those persons responsible to the fullest extent permitted by its national law. According to Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Vinoy has not fulfilled its duties to establish the liability of legal person for the bribery of foreign public officials.
II: AUGUSTINE’S PROTECTION ACT DOES NOT VIOLATE INTERNATIONAL LAW AND THE APPLICABLE TREATIES
A. Augustine does not violate its commitment to the 1994 General Agreement on Tariffs and Trade
The prohibition of hazardous waste importation from Vinoy was designed to protect human life. The Most-Favoured-Nation provision of Article I prohibits trade measures that treat products from one country differently than like products from another country. The interpretation of “like products” defines the scope of the GATT’s MFN principle. However, waste is a matter of a special kind because of the differences between waste produced in different places and to the connection of the waste with its place of production. Although Augustine accepts hazardous waste exports from such non-Basel countries as Deland and Pinellas, it is solely for the purpose of recycling or recovery operations, and so it does not treat like products differently. Furthermore, in the case of Wallonian Waste, the European Court of Justice gave environmental protection a special status in the field of free movement of goods.
Moreover, in the Wallonian Waste Case, the Belgian government argued that waste which is not recyclable and not reusable could not be regarded as @goods@ within the meaning of article 30 of the Treaty Establishing the European Community (which deals with the free movement of goods), because it has no intrinsic commercial value and thus operations for the disposal of such waste should be considered as services. Article I and XI (general elimination of quantitative restrictions) do not apply to services.
However, even if wastes were regarded as *like products=, the measures of Augustine woud fall into the GATT environmental exemption of Article XX(b), which allows environmental factors to moderate the concerns of free trade provided that the measure is justified for the protection of health and life of humans, animals or plants. So, the measures are not applied in a non-arbitrary or discriminatory manner. Nor is it a disguised restriction on trade between member states.
1. There is no arbitrary or unjustifiable discrimination where the same conditions prevail
Vinoy has breached its duties under international environmental law and treaties. In addition, it is a developed country and thus expected to have a better infrastructure for waste management than Augustine, which is a developing country. The same conditions do not prevail. Furthermore, the GATT does accept multilateral environmental agreements in its area including the Basel Convention. Article 4 (1)(a) of the Convention generally prohibits parties from importing hazardous wastes from non-parties and as Vinoy has not ratified the Convention, Augustine is entitled to prohibit hazardous waste originating from Vinoy.
2. Prohibition is no disguised restriction on international trade
The import prohibition is justified on sanitary grounds and it should not be considered disguised restriction on trade. Augustine adopts the precautionary principle in this context, which permits states to determine their own level of acceptable risk in relation to their environments. Precautionary principle is embodied in the Rio Declaration principle 15 and is realized, e.g., in many European directives. Precautionary principle states Awhere there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat@. Rio Convention preamble paragraph 9. Moreover, the purpose of the measures was to protect the environment and human life, which in this case takes precedence.
B. The World Trade Organization (WTO) permits the restrictions on environmental grounds
In 1994, ministers of the WTO members adopted a Decision on Trade and the Environment, which called for the establishment of a WTO Committee on Trade and Environment. The Decision defines the tasks of the Committee as: “to identify the relationship between trade measures and environmental measures in order to promote sustainable development”. In addition, the Decision gives a special consideration to the needs of developing countries.
The agreement establishing the World Trade Organization (WTO), entered into force on 1 January 1995, permits its members to adopt trade measures to promote conservation goals. The preamble of the agreement states that “… while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development”. The preamble acknowledges the importance of environmental concerns.
The prohibition of hazardous waste exports from Vinoy that had violated its obligations by neglecting to control hazardous waste exportation conforms to the objective to promote sustainable development. A petrochemical company that was under its jurisdiction had imported 4,500 metric tons of mercury-laden sludge into Augustine. The sludge was shipped to a resort beach and had caused considerable harm to the region. For example, WHO inspected the field where the shipping bags were deposited and found mercury concentrations of 1.8 micrograms per gram, which is as much as 3.6 times more than normal mercury levels in soil.
C. The measures of Augustine are in accordance with the Agreement on the Application of Sanitary and Phytosanitary Measures (1994)
The Agreement on the Application of Sanitary and Phytosanitary Measures gives detailed requirements for the use of sanitary and phytosanitary measures whilst preserving the rights of governments to implement food safety, animal and plant regulations in circumstances where they are necessary to protect human, animal or plant life. So, it elaborates rules for the application of the provisions of GATT 1994, in particular the provisions of Article XX (b).
1. Prohibition was necessary to protect human life
According to Article 2 of the Agreement members have the right to take sanitary and phytosanitary measures that are necessary for the protection of human life or health. In Khemboville, several individuals had already died as a result of the illegal export and many were exposed to the hazardous waste.
2. Measures are not used to discriminate in an arbitrary or unjustifiable manner against other members where identical or similar conditions prevail
The World Health Organization (WHO) inspected the field where the shipping bags were deposited. It determined that the sludge contained mercury concentrations of 1.8 micrograms per gram, i.e. even 3,6 times more than normal mercury levels in soil. Two male dockworkers that had unloaded the shipping bags died two days after the unloading and a healthy male resident died after using a shipping bag for bedding. The measures of Augustine are based on this available pertinent information.
The prohibition only applies to Vinoy, which has violated its duties under international law. It should also be remembered that Augustine is a developing country and the conditions – in particular, infrastructure for waste management – are very different compared to those of Vinoy. So, the measures were not used to arbitrarily or unjustifiably discriminate Vinoy.
3. Prohibition is not a disguised restriction on international trade
The prohibition was designed to protect human, animal and plant life and health. The information from the WHO justifies its actions. In other words, Augustine=s actions correspond to appropriate level of protection. Accumulation of waste can become a health hazard, and so the prohibition of hazardous waste imports was justified.
D. Prohibition of hazardous waste import furthers the aims of the precautionary principle
Augustine prohibited the importation of hazardous wastes originating in Vinoy, because there is no guarantee that the import will not endanger its citizens= health and environment. Augustine protects the health of its residents and its environment.
CONCLUSIONS AND PRAYER FOR RELIEF
In consideration of the aforementioned, the Kingdom of Augustine respectfully requests this Honorable Court to:
1a Declare that Republic of Vinoy has breached it duties under international environmental law to conserve and protect environment.
2a Declare that Republic of Vinoy is liable for the damage that has been caused for Kingdom of Augustine due to its failure to ensure that a company under its jurisdiction is not violating Augustine=s rights.
3a Declare that Kingdom of Augustine=s prohibition to import hazardous waste from Republic of Vinoy is in consist with international law.
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