Hazardous Waste Research Essay, Research Paper
08
IN THE INTERNATIONAL COURT OF JUSTICE AT PEACE PALACE, THE HAGUE THE NETHERLANDS
1999 GENERAL LIST NO. 104
KINGDOM OF AUGUSTINE,
APPLICANT
V.
REPUBLIC OF VINOY,RESPONDENT
MEMORIAL FOR APPLICANT
1999 International Environmental Moot Court Competition
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………………………………………………….x
STATEMENT OF JURISDICTION…………………………………………………………………………………….viii
QUESTION PRESENTED…………………………………………………………………………………………………..ix
STATEMENT OF FACTS…………………………………………………………………………………………………….x
SUMMARY OF ARGUMENTS…………………………………………………………………………………………xiii
ARGUMENTS…………………………………………………………………………………………………………………….1
I: VINOY’S ACTIONS VIOLATE ITS DUTIES UNDERTHE INTERNATIONAL LAW…………………………………………………………………………….1
A. The Republic of Vinoy has injured the sovereignty of the Kingdom of Augustine………………………………………………………………………………………………………1
B. Vinoy has acted against the principles of the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration) 1972 …………………….1
C. Vinoy has breached its duties against the Rio de Janeiro Declaration on the Environment and Development (Rio Declaration) 1992 ……………………………………..2
D. Vinoy has not fulfilled its duties under the Rio de Janeiro Convention on Biological Diversity (Rio Convention) 1992……………………………………………………………………..2
1. Vinoy has failed to control environmental damage to another State and has not acted according to the principles of international law………………2
2. Vinoy has not protected biodiversity as the Rio Convention requires…………3
E. Vinoys=s actions do not comply with its duties under the Organization for Economic Co-operation and Development……………………………………………………………………….4
F. Vinoy=s negligence violates the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) 1989 …….5
G. Vinoy is responsible and liable for the environmental and sanitary harm and economic loss………………………………………………………………………………………………..6
1. Vinoys responsible for the FormPlast actions…………………………………………6
1.1 Sic utere pinciple…………………………………………………………………………..6
1.2 Vinoy is responsible for FormPlast?s actions according to Stockholm Declaration and Rio Declaration………………………………………………………7
1.3 Vinoy is responsible for FormPlast=s actions in accordance with the Rio Convention……………………………………………………………………………………7
2. Vinoy is liable for the damage caused to Agustine…………………………………..8
2.1 A general principle of compensation…………………………………………8
2.2 Vinoy as a developed country has a responsibility to compensate damage caused Augustine which is a developing country………………………………………………………………………………..9
2.3 Vinoy is liable for unreasonable environmental harm conducted by FormPlast……………………………………………………………………………10
2.4 Examples of compensation in judicial decisions………………………11
H. Vinoy violates its duties under Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ………………………………………………11
II: AUGUSTINE’S PROTECTION ACT DOES NOT VIOLATE INTERNATIONAL LAW AND THE APPLICABLE TREATIES…………………………………………………….12A. Augustine does not violate its commitment to the 1994 General Agreement on Tariffs and Trade ……………………………………………………………………………………………………12
1. There is no arbitrary or unjustified discrimination where the same conditions prevail………………………………………………………………………………………………13
2. Prohibition is no disguised restriction on international trade……………………13
B. The World Trade organization permits the restriction on environmental grounds…14
C. The measures of Augustine are in accordance with the Agreement on the Application of Sanitary and Phytosanitary Measures 1994 ………………………………..15
1. Prohibition was necessary to protect human life…………………………………….15
2. Measures are not used to discriminate in an arbitrary or unjustifiable manner against other members where identical or similar conditions prevail………..15
3. Prohibition is not disguised restriction on international trade…………………..16
D. Prohibition of hazardous waste import furthers the aims of the precautionary principle……………………………………………………………………………………………………..16
CONCLUSION AND PRAYER FOR RELIEF……………………………………………………………………..17
APPENDIX
INDEX OF AUTHORITIES
SPECIAL AGREEMENT BETWEEN AUGUSTINE AND THE REPUBLIC ON VINOY FOR SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE OF DIFFERENCES BETWEEN THEM CONCERNING TRANBOUNDARY MOVEMENT OF HAZARDOUS WASTE enacted by Augustine and Vinoy at Tallinn, June 15,1999
BILATERAL AGREEMENT BETWEEN ON TRANSBOUNDARY HAZARDOUS SHIPMENTS, enacted by Augustine and Vinoy , 1992
INTERNATIONAL AGREEMENTS AND DECLARATIONS
AGREEMENT ESTABLISHING THE WORLD TRADE ORGANISATION, adopted at Marrakesh, April 15,1994…………………………………………………………………………………………………….14
AGREEMENT OF THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES, Marrakesh, April 15,1994……………………………………………………………………………….15
CHARTER OF THE UNITED NATIONS, adopted at San Francisco,
June 26, 1945.Stat 59.1031…………………………………………………………………………………………………1,3
CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS, adopted at Paris, December 17,1997…………11
CONVENTION ON THE CONTROL OF TRANSBOUNDARY MOVEMENTS OF HAZARDOUS WASTES AND THEIR DISPOSAL, adopted at Basel, March 22,1989…………..5,13
DECLARATION OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT, adopted at Rio De Janeiro, June 14, 1992, U.N. Doc. A/CONF .151/5 (1992)………………………………………………………………………………………………………………………….2,7,13
DECLARATION OF THE UNITED NATIONS CONFERENCE ON THE HUMAN ENVIRONMENT, adopted at Stockholm, June 5, 1972, U.N. Doc. A/CONF. 48/14 (1972)………1,7
GENERAL AGREEMENT ON TARIFFS AND TRADE, adopted at Geneva, October 30 , 1947.61 Stat A 11.T.I.A.S 1700.55 U.N.T.S 194…………………………………………………………………………….12,13
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, adopted at San Francisco, June 26, 1945. Stat 59. 1055………………………………………………………………………………………………………….8
TREATY ESTABLISHING THE EUROPEAN COMMUNITY, adopted at Rome, March 25, 1957………………………………………………………………………………………………………………………………….12.
UNITED NATIONS CONVENTION ON BIOLOGICAL DIVERSITY, adopted at Rio De Janeiro, June 5, 1992, I.L.M.814………………………………………………………………………………….1,2,3,4,7,9,10,13
VIENNA CONVENTION ON LAW OF TREATIES, May 23, 1969, U.N. Doc.
A/CONF.39/27………………………………………………………………………………………………………………..5,11
THE OECD COUNCIL DECISION-RECOMMENDATION ON EXPORTS OF HAZARDOUS WASTES FROM THE OECD AREA C(86)64/Final, June 5, 1986……………………………………………4
THE OECD COUNCIL DECISION-RECOMMENDATION ON THE REDUCTION OF TRANSFRONTIER MOVEMENTS OF WASTES C (90)178/Final, January 31, 1991………………..4
THE OECD COUNCIL DECISION C(98)202/Final………………………………………………………………..4
JUDICAL DECISIONS
Corfu Channel Case (United Kingdom v. Albania) 1949. I.C.J. (April 22)………………………….7,10,11
Trail Smelter Arbitration (United States v. Canada), 11 March 1941. RIAA. Vol. III (1905-1982)………………………………………………………………………………………………………………………….6,10,11
Chorz?w Factory Indemnity Case (Germany v. Poland). PCIJ 1928 (Ser. A) No. 17 (1-27)…………11
Wallonian Wastes Case (Commission of the European Communities v Belgium). European Court Reports 1992 (I-4431)…………………………………………………………………………………………………………13
BOOKS
Alder, J. & Wilkinson, D. Environmental Law & Ethics. 1999. Creative Print and Design, Ebbw Vale, Great Britain……………………………………………………………………………………………………………….5
Birnie, P.W. and Boyle, A.E. International Law & The Environment. Oxford University Press Inc., New York. United States……………………………………………………………………………………………………..10
Glowka, L., Burhenne-Guilmin, F. and Synge H. in collaboration with. McNeely, J. A. and G?ndling,L.. A Guide to the Convention on Biological Diversity. 1994. Environmental Policy and Law Paper No. 30. IUCN – The World Conservation Union. ATAR, Geneva, Switzerland….3,4,7,10
STATEMENT OF JURISDICTION
Kingdom of Augustine and Vinoy submit the following dispute to the International Court of Justice (ICJ) by special agreement signed by these two states June 15, 1999, pursuant to Article 40, paragraph 1, of statute of the ICJ.
QUESTIONS PRESENTED
I Whether Vinoy is liable under international law for damage caused by illegal shipment of hazardous waste from its territory.
II Whether Kingdom of Augustine’s prohibition on the importation of hazardous waste from Vinoy is contrary to international law.
STATEMENT OF FACTS
Two countries, the Kingdom of Augustine (Augustine) and the Republic of Vinoy (Vinoy), drifted into differences on a matter concerning transboundary movements of hazardous waste. Augustine is a developing country and not a member of OECD. Vinoy is a developed country and a member of OECD.
Differences aroused when FormPlast, Inc., a petrochemical company doing business in and incorporated under the laws of Vinoy, shipped 4,500 metric tons of mercury-laden sludge into Khemboville, a port in Augustine. To get export and import permit FormPlast had illegally bribed both Vinoy’s, and Augustine’s custom officials.
The mercury-laden sludge was packed into large plastic shipping bags. Shipping bags were dumped in a low-lying field in Khemboville. The residents of Khemboville emptied the shipping bags and used them for householding purposes. Three people died after being in contact with shipping bags.
On 10 March 1998, the Human Watch institute announced in Khemboville town meeting that the shipping bags contained hazardous waste. The announcement caused a riot in Khemboville, during which property worth $ 1.5 million (USD) was destroyed by angry citizens of Khemboville. When Khemboville residents learned about the content of the shipping bags, over fifteen thousand attempted to leave the area. During the evacuation six residents were killed.
Augustine and Vinoy entered into a Bilateral Agreement on Transboundary Hazardous Shipments (BATHS) in 1992. BATHS was an agreement that expressly allowed, subject to export and import permits, movement of wastes between Augustine and Vinoy. In accordance with BATHS, Augustine requested that Vinoy arrange re-import of the 4,500 metric tons of hazardous waste and any contaminated soil to Vinoy. Vinoy complied with this request.
After the incident Augustine prosecuted its customs officials for accepting bribes. These officials were convicted, sentenced to serve 15 years in prison, and each fined $500,000 (USD). Also Vinoy prosecuted one of its 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 according to Vinoy?s criminal code was a ten year prison term and a $1 million (USD) fine. Augustine requested Vinoy bring a criminal action against FormPlast for its actions. Vinoy did not comply with the request, stating that its laws do not apply to such conduct.
On 30 August 1998, Ambassador of Augustine delivered a diplomatic note to the Government of Vinoy requesting Vinoy to enter into consultation with Augustine to discuss compensation concerning the FormPlast incident. 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 activities within their jurisdiction or control do not cause damage to the environments 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. In addition Augustine notes that Vinoy has not fulfilled its duties required by the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions by declining to prosecute FormPlast Inc. of its actions.
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, Augustine notes that adverse publicity relating to this incident has destroyed Khemboville’s tourist industry. Ambassador of Vinoy answered Augustine=s note on 10 September 1998. In the answer, 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 Vinoy is not a party, contains no liability provisions. To the question of prosecuting FormPlast, Vinoy states that it has vigorously prosecuted those persons responsible to the fullest extent permitted by its national laws. Vinoy submits that these actions have fulfilled any legal duties that may be owed to Augustine.
After additional exchanges of correspondence, on 24 November 1998, Augustine terminated BATHS in accordance with its terms. On 25 November 1998, Augustine enacted the Basel Convention Implementation Act. The implementation act included a prohibition of hazardous waste importation from Vinoy.
As a result of the termination of BATHS and Augustine’s domestic legislation, Vinoy may no longer export hazardous waste to Augustine. Vinoy asserts that such a prohibition on international trade violates international law.
On 1 December 1998, Augustine and 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.
SUMMARY OF ARGUMENTS
Vinoy is a party to several treaties, which require their parties to protect environment. By neglecting to control the dumping of hazardous waste to Augustine=s territory Vinoy has acted in violation of those treaties and international customary law. As a sovereign state, Vinoy has a duty to ensure that companies and citizens under its jurisdiction do not violate other countries= rights. Therefore, Vinoy is liable for the damage that FormPlast=s actions caused to Augustine.
In Response to Vinoy’s violation of international law, Augustine has right to prohibit import of hazardous wastes from Vinoy. This prohibition is not in violation of GATT or any other treaty. Prohibition is a necessary measure to protect the environment and it promotes the goals of international environmental conventions and declarations.