Case Concerning the Aerial Spraying

THE LAS APLAYAS APPLICANT

v.

THE STATE OF LOS PUEBLOS RESPONDENT

On Submission to the International Court of Justice The Peace Palace, The Hague, The Netherlands

MEMORIAL FOR THE RESPONDENT 1

TABLE OF CONTENTS

Table of Contents ........................................................................................................................i Index of Authorities ..................................................................................................................... Statement of Jurisdiction ............................................................................................................ Questions Presented .................................................................................................................... Statement of Facts ...................................................................................................................... Pleadings ....................................................................................................................................... Summary of Pleadings .............................................................................................................

INDEX OF AUTHORITY UNITED NATIONS TREATIES AND CONVENTION Montevideo Convention on the rights and duties of the state BOOKS AND ARTICLES International law, Isagani Cruz, 2003 Nii Lante Wallace Bruce, Claims to Statehood in International Law Montevideo Convention 1979 Convention on Long-range Transboundary Air Pollution http://en.wikipedia.org/wiki/Glyphosate Article 2 Draft Declaration on Rights and Duties of States 1949

STATEMENT OF JURISDICTION

On behalf Pueblos of you of the an (the

of

Las

Aplayas in of

(the

Applicant) with have

and

the 40(1)

State of to the

of

Los

Respondent), Court the

accordance Justice, for we

Article the to

Statute to

International original of the of the

honour the and

transmit

Compromis

submission the

International the in

Court

Justice

Differences spraying the

between and

Applicant matters, of

Respondent The Hague, two

concerning The

aerial on

other day

signed in

Netherlands, thirteen.

twenty-fifth

February

the

year

thousand

QUESTIONS PRESENTED I. Whether the court it is no longer lacks a jurisdiction over the claims of Las Aplayas, as

state;

II.

Whether Los Pueblos sovereignty over its

aerial

spraying

is

legitimate

exercise

of

territory;

III.

Whether Los Pueblos glyphosate not listed does as of an not

acts

of

spraying

herbicides

with as

the it to on to

use is

of presently

cause

environmental pollutant (Annex

damage I, Air

organic

Protocol Pollution damage the

the

1979

Convention Organic

Long-Range that all,

Transboundary cause spraying

Persistent the of the

Pollutants) If at

could aerial

potential falls

environment; state of

under

doctrine

necessity;

IIV.

Whether Los Pueblos of the migrants in

has

not

violated Las

international Aplayas as

law the

in

its

treatment are being in

from (former)

migrants

treated any to

accordance with its Las Aplayas

obligations

under

international claims

law with

and, respect

event, those to

is foreclosed from of

making take

individuals protect

because

its failure to

available

affirmative

steps

them.

STATEMENT OF FACTS Las Aplayas became an independent republic in 1898. Pueblos, a federal coastal state with a developed industrial economy and a population of almost 50 million people, is located to the immediate east of Las Aplayas Los Pueblos economy has blossomed in recent years, in large part due to its agriculture and known as the world leader in cultivation of banana, pineapple, and other valuable crops. Other than agriculture, Los Pueblo also has heavy metal and agricultural processing economy, Starting year 2000, the Federal Republic of Los Pueblos initiated its so-called Plan Alpha, a vital part of which is the aerial spraying of crops from small airplanes and helicopters with powerful, broad-spectrum herbicides Plan Alpha became a huge 4

success, and attributed to the increase of agricultural production and consequently, industrial activity using fossil fuels. The impacts of Los Puebloss spraying, however, have not been confined to its side of the border. In the meantime, others (about 10,000 of them) decided to flee to its neighboring state, Los Pueblos, to look for a better life. Los Pueblos border patrol intercepted the environmentally displaced Las Aplayans and brought them to an Immigration Processing and Detention Center. While there, the migrants complained of maltreatment and unfavorable living conditions. The situation was also reported by the Los Pueblos Human Rights Commission, which reported of overcrowded facilities, inadequate food and water, and limited access to medical facilities. This report was dismissed by the Immigration Department. Las Aplayans petitioned their government to address the plight of the migrants detained in Los Pueblos. Throughout the years since the spraying started in 2000, Los Pueblos has made repeated and sustained efforts to negotiate an end to the fumigations. PLEADINGS

I.

The Court lacks jurisdiction over the claims of Las Aplayas, As it is no longer a state;

1. Las Aplayas is no longer a state.

The state as a person of international law should possess the following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.1

(Article 1 Montevideo Convention).

It is error to suppose that a state is immortal, for the fact is that it is possible for it to be extinguished or die in a legal sense. For example, the population may be completely wiped out by an epidemic or a thermonuclear explosion; or it may emigrate in masse.2 Effective government is crucial to an entitys statehood. However, it is uncertain what is meant by the term government, given the various forms of government. It appears that what is required is a complete system of institutions regulating all aspects of life within the territory under government control. Effective governance may be determined by the degree of calm or chaos within the territory. If, for example, a civil war breaks out, the effectiveness of the institutions is doubtful.3 In the case at bar, Las Aplayas failed to maintain one of the qualifications of a state set by the Montevideo Convention. Specifically speaking, it failed to maintain a permanent population, most of its inhabitants moved to Los Pueblos in masses. And that the government of the Las Aplayas did not provide adequate protection to its inhabitant, as manifested by its failure to identify the real cause of the health issues or problems suffered by the inhabitants and blaming the same to be caused by the aerial spraying of Los Pueblos, in which, they cannot establish an unbroken link from what they allege and what they conclude. Thus causing its cessation as a state in a legal sense. 2. Only states may be parties in cases before the International Court o Justice.

Provided in Article 34., Statute of the International Court of Justice, Only states may be parties in cases before the Court. With the cessation of Las Aplayas statehood, it cannot, therefore, be qualified as a party in cases before the International Court of Justice.
2

(International law, Isagani Cruz, 2003)

(See Nii Lante Wallace Bruce, Claims to Statehood in International Law)

II. Los Pueblos Aerial spraying is a legitimate exercise of sovereignty over its territory; 1. Exercise of sovereignty.

Sovereignty is defined as The supreme, absolute and uncontrollable power by which any independent state is governed; supreme political authority; paramount control of the constitution and form of government and its administration; the self sufficient source of political power, from which all specific powers are derived; the international independence of a state, combined with the right and power of regulating its internal affairs without foreign dictation; also a political society, or state A member state of the united nations has the rights of sovereignty, which is the right to prohibit another state from intervening in its internal affairs and carries with it the duty of any other state from not intervening; the right of equality of state which entitles it to equal treatment; the right to self defense or the right to take steps necessary to protects its security. States are juridically equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law. 4 No state has the right to intervene in the internal or external affairs of another.5

2. Aerial spraying is a legitimate exercise over its territory.

(Article 4 Montevideo Convention) (Article 8 Montevideo Convention.)

Every State has the right to exercise jurisdiction over its territory and over all persons and things therein, subject to the immunities recognized by international law.6 Plan alpha is a legitimate exercise of los pueblos over its jurisdiction. Plan alpha was born of a legitimate legislative exercise, with the purpose of economic improvement. Los Pueblos, as a developing state, aim to increase its agricultural production through utilizing the uninhabited land of the state as farm land. Aerial spraying was performed to clear the subject land. III. Los pueblos act of spraying herbicides with the use of glyphosate does not cause environmental damage as it is presently not listed as an organic pollutant that caused potential damage to the environment, if at all, aerial spraying falls under the doctrine of the state of necessity,

Spraying herbicides with the use of glyphosate does not cause environmental damage. Based on the 1979 Convention on Long-range Transboundary Air Pollution on Persistent Organic Pollutants 16 substances or groups of substances were selected by a screening. The substances which were included are aldrin, chlordane, chlordecone, DDT, dieldrin, endrin, heptachlor, hexabromobiphenyl, hexachlorobenzene, mirex, PCB, toxaphene. This substances are mainly pesticides with well-demonstrated persistence and toxicity.7 Glyphosate is a broad-spectrum systemic herbicide used to kill weeds, especially annual broadleaf weeds and grasses known to compete with commercial crops grown around the globe. Studies by the United States Environmental Protection Agency have concluded that glyphosate showed no toxic effects when fed to animals for two years, and had no effect on
6

(Article 2 Draft Declaration on Rights and Duties of States 1949).

1979 Convention on Long-range Transboundary Air Pollution

their cancer rates. It is poorly absorbed in the digestive tract, and has no significant potential to accumulate in animal tissue. The EPA considered a "worst case" risk model of an individual eating a lifetime of food entirely from glyphosate-sprayed fields, and with residue levels remaining at their maximum levels, and concluded no adverse effects would exist under these conditions.8 If however, it is indeed a harmful substance, the aerial spraying still is justified for it falls under the doctrine of state necessity. Under the doctrine of state necessity , that which is otherwise not lawful is made lawful by necessity. Los Pueblos economy is for most part dependent to agriculture. Known as the world leader in cultivation of banana, pineapple, and other valuable crops, there is no other way to sustain these crops continuously other than an aerial spraying, thus, If aerial spraying is not used, the agriculture industry would be paralyzed.

IV.

Los pueblos has not violated international law in its treatment of migrants from (former) Las Aplayas as the migrants are being treated in accordance with its obligation under the international law and, in any event, Las Aplayas is foreclosed from making claim with respect to those individuals because of its failure to take available affirmative steps to protect them.

The migrants were being treated in accordance with the obligation of a state under the international law. Under Article 9 of the Montevideo Convention on the rights and duties of the state, The jurisdiction of states within the limits of national territory applies to all the inhabitants.

http://en.wikipedia.org/wiki/Glyphosate

Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.9

The migrants from Las Aplayas were certainly accorded with adequate food, water and and medical facilities by the government of Los Pueblos. Such treatment is the same and equal with the inhabitants of Los Pueblos. Hence, the maltreatment and unfavorable living conditions as reported is not an accurate report.

In any event, Las Aplayas is foreclosed from making claim with respect to those individuals because of its failure to take available affirmative steps to protect them. Article 8 of the same convention provides that No state has the right to intervene in the internal or external affairs

of another.10 The treatment of the migrants is an internal affairs of Los Pueblos, hence, Las Aplayas is precluded from making claim with respect to those individuals.

Montevideo Convention on the rights and duties of the state ibid

10

10