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Memorial For Respondent

This document contains the memorial for the respondent, the Republic of Rakkab, in the case concerning the Kayleff Yak before the International Court of Justice. It includes a table of contents, index of authorities, statement of jurisdiction, question presented, statement of facts, and summary of pleadings. The main arguments made by Rakkab are that (1) its actions regarding harvesting of the yak are not attributable to it under international law; (2) harvesting of the yak did not violate its obligations relating to endangered species; and (3) it is not obligated to provide profits from sales of the drug Galvectra to Aurok.

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100% found this document useful (1 vote)
539 views33 pages

Memorial For Respondent

This document contains the memorial for the respondent, the Republic of Rakkab, in the case concerning the Kayleff Yak before the International Court of Justice. It includes a table of contents, index of authorities, statement of jurisdiction, question presented, statement of facts, and summary of pleadings. The main arguments made by Rakkab are that (1) its actions regarding harvesting of the yak are not attributable to it under international law; (2) harvesting of the yak did not violate its obligations relating to endangered species; and (3) it is not obligated to provide profits from sales of the drug Galvectra to Aurok.

Uploaded by

Chandra Dio
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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275R

IN THE INTERNATIONAL COURT OF JUSTICE


AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS

THE 2019 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION

THE CASE CONCERNING THE KAYLEFF YAK

THE STATE OF AUROK

(APPLICANT)

V.

THE REPUBLIC OF RAKKAB

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT


275R

TABLE OF CONTENT

Table of Content.......................................................................................................................ii

Index of Authorities ................................................................................................................. v

UN DOCUMENTS ............................................................................................................... v

Statement of Jurisdiction .................................................................................................... viii

Question Presented ................................................................................................................. ix

Statement of Facts .................................................................................................................... x

Summary of Pleadings .......................................................................................................... xvi

Pleadings and Authorities ....................................................................................................... 1

A. RAKKAB IS NOT RESPONSIBLE FOR THE INTERNATIONALLY WRONGFUL ACTS

DESCRIBED IN SUB-PARAGRAPHS (B)-(D), INFRA, BECAUSE DORTA’S ACTIONS ARE

ATTRIBUTABLE TO RAKKAB, OR IN THE ALTERNATIVE, RAKKAB IS RESPONSIBLE FOR

ITS OWN FAILURE TO PREVENT DORTA FROM COMMITTING THOSE WRONGFUL

ACTS; .................................................................................................................................. 1

1. Respondent has no responsibility on Dorta’s act ................................................ 1

A. Respondent has no control to determine Dorta’s Policy ................................ 1

B. Respondent act is to overcome the force majeure. .......................................... 2

B. THE HARVESTING OF THE YAK IN RAKKAB DID NOT VIOLATE RAKKAB’S

INTERNATIONAL OBLIGATIONS RELATING TO THE PROTECTION OF ENDANGERED

SPECIES AND THE ENVIRONMENT, INCLUDING THOSE UNDER RELEVANT

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CONVENTIONS, AND RAKKAB IS OBLIGATED TO END YAK HARVESTING ON ITS

TERRITORY ........................................................................................................................ 4

1. Rakkab consistent with international obligations relating to the protection of

endangered species. ....................................................................................................... 4

A. The situation provides Respondent the exception to harvest the yak ........... 4

1. Respondent harvesting Yak as Scientific Purposes ..................................... 4

2. Extraordinary Situation ................................................................................ 5

3. Respondent act over the CMS decision is consistent with International

obligation ................................................................................................................ 5

4. Respondent already oblige the international law by promulgating

Regulation AG/2017-0300 ..................................................................................... 6

5. Gallvectra trade worldwide in accordance with international law The

sales of Gallvectra should obtain the management authority as stated in

CITES ..................................................................................................................... 7

6. Respondent did not cause any damage to the environment of other States

or of areas beyond the limits of national jurisdiction......................................... 8

7. Implementation of Regulation AG/2017-0300 by Respondent in order to

ensure Environment Standard ............................................................................. 9

C. THE HARVESTING OF THE YAK IN RAKKAB DID NOT VIOLATE THE CULTURAL

AND RELIGIOUS RIGHTS OF THE PEOPLE OF AUROK, AND RAKKAB MUST NOT

PROHIBIT SUCH HUNTING FORTHWITH. ......................................................................... 11

1. The Harvesting of Yak was a measure to fulfil the individual rights of wider

society. .......................................................................................................................... 11

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A. Ensuring the health of wider society .............................................................. 11

C. Right to Enjoy the benefits of scientific progress and its applications........ 13

2. The State Sovereignty of Natural Resources ..................................................... 13

D. RAKKAB MUST NOT PAY AUROK, A PORTION OF THE PROFITS REALIZED FROM

SALES OF THE DRUG GALVECTRA, BECAUSE THE APPROPRIATION AND

EXPLOITATION OF TRADITIONAL KNOWLEDGE BELONGING TO THE AUROKAN

PEOPLE WITHOUT COMPENSATION IS CONSISTENT WITH INTERNATIONAL LAW. ...... 14

1. The action conducted by the Respondent already consist with the

international law ......................................................................................................... 14

A. The patent that applied by the respondent has been granted by the

government .............................................................................................................. 14

B. The Yak harvesting conducted by the respondent cause no impact to

applicant Traditional Knowledge .......................................................................... 14

C. The Yak harvesting conducted by the respondent in its own territory ...... 15

Prayer For Relief................................................................................................................... xvi

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INDEX OF AUTHORITIES

UN DOCUMENTS
2001 Articles on Responsibility of States for Internationally

Wrongful Acts, art.5, U.N.Doc. A/56/83

2001 Articles on Responsibility of States for Internationally

Wrongful Acts, art.23, U.N.Doc. A/56/83

Convention on the Conservation of Migratory Species of

Wild Animals Recommendation 32 of the Action Plan

adopted by the United Nations Conference on the Human

Environment (Stockholm,1972), art 3 section 4.

Convention on the Conservation of Migratory Species of

Wild Animals Recommendation 32 of the Action Plan

adopted by the United Nations Conference on the Human

Environment (Stockholm,1972), art 3 section 5.

Convention on the Conservation of Migratory Species of

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Wild Animals Recommendation 32 of the Action Plan

adopted by the United Nations Conference on the Human

Environment (Stockholm,1972), art 3 section 7.

Convention on the Conservation of Migratory Species of

Wild Animals Recommendation 32 of the Action Plan

adopted by the United Nations Conference on the Human

Environment (Stockholm,1972), art 5 section 2.

Convention on the Conservation of Migratory Species of

Wild Animals Recommendation 32 of the Action Plan

adopted by the United Nations Conference on the Human

Environment (Stockholm,1972), art 9 section 1.

Declaration of The United Nations Conference On

Environment and Development adopted at Stockholm

on 16 June 1972, principle 2.

Declaration of The United Nations Conference On

Environment and Development adopted at Stockholm

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on 16 June 1972, principle 8.

Declaration of The United Nations Conference On

Environment and Development adopted at Stockholm

on 16 June 1972, principle 11.

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STATEMENT OF JURISDICTION

The state of Aurok and The Republic of Rakkab have agreed to submit this dispute

‘Concerning the Kayleff Yak’ to the International Court of Justice pursuant to article 40,

paragraph 1 of the statute this court and by virtue of a special agreement (compromise)

signed in The Hague, The Netherlands on the fourteenth day of September in the year two

thousand eighteen. In accordance to Article 36, paragraph 1 of the Statute, the Court has

jurisdiction to decide all matters referred to it for decision. Both parties shall accept the

Court’s decision as final and binding and execute it in good faith.

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QUESTION PRESENTED

I. Whether Rakkab is not responsible for the internationally wrongful acts described

in sub-paragraphs (b)-(d), infra, because DORTA’s actions are attributable to

Rakkab, or in the alternative, Rakkab is responsible for its own failure to prevent

DORTA from committing those wrongful acts

II. Whether The harvesting of the Yak in Rakkab did not violate Rakkab’s

international obligations relating to the protection of endangered species and the

environment, including those under relevant conventions, and Rakkab is obligated

to end Yak harvesting on its territory

III. Whether The harvesting of the Yak in Rakkab did not violates the cultural and

religious rights of the people of Aurok, and Rakkab must prohibit such hunting

forthwith

IV. Whether Rakkab must not pay Aurok, a portion (to be determined in subsequent

proceedings) of the profits realized from sales of the drug Gallvectra, because the

appropriation and exploitation of traditional knowledge belonging to the Aurokan

people without compensation is inconsistent with international law

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STATEMENT OF FACTS

BACKGROUND

Fossil records indicate that the Gaur Highlands have been the exclusive habitat of the

majestic Kayleff Yak (Bos mumuensis, or “the Yak”) for more than 250,000 years. An

average adult male Yak weighs between 800 and 900 kilograms and stands 160 centimeters

tall at the withers; adult females weigh between 400 and 500 kilograms and stand 150

centimeters. Individual herds of Yak once numbered in the hundreds of thousands and have

for millennia migrated thousands of kilometers seasonally. In the (northern hemisphere)

spring and summer, young Yak are born and the herd stays in their northern grazing lands (in

present-day Aurok). Mating season begins after the Yak migrate south to their autumn and

winter range (in present-day Rakkab). The Pivzao civilization that arose in the Gaur

Highlands in 1000 BCE relied upon subsistence hunting of the Yak for virtually every aspect

of their lives, including food, medicine, construction materials, and clothing.

THE STATE OF AUROK

The State of Aurok is a small, landlocked, least-developed country with a population of

around 1.2 million, composed almost entirely of descendants of the Pivzao civilization. It was

established in 1961, when Jeramia granted independence to all of its colonies worldwide.

Aurok’s territory comprises the northern 70 percent of the Gaur Highlands. A 2015 United

Nations Development Program report indicated that the majority of the population is rural,

living in villages and settlements of fewer than 200 people. To the present day, many

Aurokans continue to observe the Pivzao traditions, and the Yak remains of prime religious

and cultural significance.

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RAKKAB ENCOMPASSES 30 PERCENT OF THE GAUR HIGHLANDS

The Republic of Rakkab borders Aurok to the south and, along with its neighbor, gained

independence from Jeramia in 1961. It encompasses 30 percent of the Gaur Highlands, along

with the fertile plains to the south and east. Its territory includes several deep-water oceanic

trading ports. As a consequence of its geographical advantages and decades of careful

stewardship, Rakkab emerged as a regional power in the 1970s, and today has a diversified

economy including international banking and technology, as well as light manufacturing,

agriculture, and the production of raw and finished textiles. As of 2015, the multi-ethnic

population of Rakkab was 4.5 million. Census reports and informal surveys indicate that

there are fewer than 200 adherents to the Pivzao traditions among the population of Rakkab.

STOCK SHARES OF DORTA

In February 1996, Rakkab’s Parliament adopted legislation to privatize the Department. The

newly private company, DORTA M/S (“DORTA”) was incorporated in Rakkab on 6 April

1996, and public trading of its shares began on the New York Stock Exchange a month later.

According to the legislative act privatizing the Department – and according to DORTA’s

private charter – the government of Rakkab must always own no less than 9.9 percent and no

more than 19.9 percent of the shares of DORTA. As of the present date, Rakkab holds

approximately 12% of DORTA’s stock.

A SIGNIFICANT INCREASE ON LIFESTYLE DISEASES

Rakkab has since the middle of the 20th century witnessed a significant increase in its rates of

childhood and adult obesity, diabetes, and several other lifestyle-related diseases.

LUSTUK ENZYME

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Dr. Bello observed that the incidence of diabetes and obesity was consistently and markedly

lower among his Aurokan patients than among his Rakkabi patients. In 2001, he spent a year

living in rural Aurok, investigating Aurokan dietary and cultural practices. Based upon his

fieldwork and subsequent laboratory studies, Dr. Bello concluded that the discrepancy was

correlated with a never-before-identified enzyme found in the gallbladder of the Yak, a key

ingredient in Tirhinga Nos Lustuk. In an article summarizing his findings, published in the

British peer-reviewed medical journal The Lancet in 2002, Dr. Bello referred to his discovery

as “the Lustuk Enzyme,” and noted “many Aurokans observe their traditional religious rites,

obtaining the meat and organs of the Kayleff Yak according to their age-old processes. I am

quite confident that their ingestion of the Lustuk Enzyme in substantial quantities is what

provides their remarkable protection against diabetes and obesity.

GALLVECTRA

On 11 November 2004, DORTA filed a patent application with the Rakkabi Intellectual

Property Ministry for the medication derived from the Lustuk Enzyme, which it named

“Gallvectra,” to treat insulin resistance-related diseases. The application listed Dr. Bello as

the inventor. According to Rakkabi law, patent applications are published in the Official

Journal and on the Ministry’s website and are open to public comment for a period of 18

months before a final decision is made. Once issued, the term of a patent is 20 years from the

date of first filing.

THE YAK LIFE SCIENCES ACADEMY (YLSA)

The Yak Life Sciences Academy (YLSA) is an international NGO devoted to the study and

preservation of all species of yak. Since 1994, YLSA has surveyed Yak migration along the

Aurok-Rakkab border. YLSA’s 2016 report, published in June of that year, expressed grave

xii
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concern at what it called “the disruption of the delicate balance between the Yak and human

population in the region.”

YAKTRAKKER

On 16 November 2016, the Rakkabi Ministry of Agriculture released on all major digital

platforms an application called “YakTrakker” which drew from government owned and

controlled unmanned drones and satellites to provide real-time tracking of Yak herds in

Rakkab. The Ministry claimed that the purpose of the application was “to allow scientists and

conservationists to make accurate estimates of the health and vitality of the Yak population.”

Two weeks later, YLSA published a press release, observing that “While YakTrakker is

indeed a useful tool for conservationists and Yak activists, we have seen anecdotal evidence

that it is also being used by Yak hunters to follow and hunt the herds more efficiently.”

YLSA called upon the Rakkabi government to remove the application and cancel

YakTrakker. Prime Minister Sumun also issued a statement referring to the YLSA press

release, adding that “Rakkab should take down the YakTrakker program to bring the country

into compliance with its international obligations.” Rakkab made no reply, and the

YakTrakker app remains in operation and available for download to the present day

CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FLORA AND

FAUNA (“CITES”)

On 1 July 2017, the Aurok Ministry of Foreign Affairs sent a notification to the Secretariat of

the Convention on International Trade in Endangered Species of Wild Flora and Fauna

(“CITES”), requesting that the Kayleff Yak be included in Appendix III of CITES.

THE EXTINCTION OF THE YAK

xiii
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The Prime Minister referred to the northernmost Aurokan settlements, which saw so few Yak

that young residents had no opportunity to participate in a successful Yak hunt. She noted

that without formally passing into adulthood through that rite, strong religious tradition

discouraged them from starting a family, owning a home, or participating in village

governance. The extinction of the Yak, in her words, “would lead to the end of Aurokan life

as we know it. We cannot let that happen. DORTA and Rakkab must bring this cruel and

unsustainable hunting to an end.”

REGULATION AG/2017-0300

In response to the CMS decision, and in accordance with applicable law, on 15 November

2017, the Rakkabi Ministry of Agriculture promulgated Regulation AG/2017-0300, which

provides:

1. All licenses permitting the hunting of the Kayleff Yak issued prior to

the date of this Regulation are hereby terminated and declared no

longer valid, effective immediately;

2. The killing of Yak in the territory of Rakkab by an individual not in

possession of a valid license issued by the Ministry of Agriculture is

prohibited;

3. The Ministry shall issue a license for any taking of Yak it considers to

be consistent with Section 5 of Article III of the CMS and may impose

limits on the number of Yak that any license holder may take, as it

deems appropriate;

4. The Ministry may issue licenses hereunder to private companies,

whose employees or agents of those companies shall be deemed

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licensed individuals pursuant to this Regulation, so long as any hunting

limit imposed on the license holder is understood to apply to its

employees or agents in aggregate; and

UNITED NATIONS

Aurok and Rakkab both joined the United Nations and several of its specialized agencies,

including the World Health Organization, in 1962. Both are also, and at all relevant times

have been, parties to the Vienna Convention on the Law of Treaties, the International

Covenant on Civil and Political Rights, the International Covenant on Economic, Social and

Cultural Rights, the Paris Convention for the Protection of Industrial Property of 1883 as

amended, the Convention on International Trade in Endangered Species of Wild Flora and

Fauna of 1973, the Convention on the Conservation of Migratory Species of Wild Animals of

1979, the Indigenous and Tribal Peoples Convention of 1989, and the Convention on

Biological Diversity of 1992 and its 2010 Nagoya Protocol on Access to Genetic Resources

and the Fair and Equitable Sharing of Benefits Arising from Their Utilization. Neither State

has issued any relevant reservations to those treaties.

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SUMMARY OF PLEADINGS

1. Rakkab (“Respondent”) did not violate the responsibility for internationally wrongful

act by harvesting the yak in their territory. Respondent do not have any control of the

action conducted by Dorta because respondent only has 12% percent of Dorta’s stock.

Respondent is the minority shareholders, so respondent do not have enough power

DORTA’s policy unless with the acception of other shareholders. Therefore, the

respondent did not responsible for any act conducted by DORTA.

2. The action conducted by respondent is to overcome the force majeure because there is

an unforeseen and irresistible situation and beyond the control of the state.

3. Respondent action on promulgating the regulation AG/2017-0300 is consistent with

the CMS decision and in accordance with the applicable law, therefore respondent did

not breach its own international obligation relating on the endangered species.

4. Respondent did not cause any environmental damage to the applicant because

respondent only harvests the Yak only in their own territory and pursuant to the Rio

Declaration on environment and development (1992) States have the rights to exploit

their own resources pursuant to their own environmental and developmental policies

and ensure that acts of exploitation occur within jurisdictions and ensure that activities

from exploitation do not affect the environment of other states The harvesting

activities carried out as respondents, including the activities of exploitation of

resources that exist in any Respondents environment that is available on Respondents

sovereign rights. therefore, respondent did not violate its own international obligation

to the protection of the endangered species.

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5. The DORTA-Sponsored Harvesting conducted by Respondent in its own territory do

not violate the cultural and religious rights of the Aurokan People. Because the rights

are included as a communal right belonging a community in accordance to the

ownership of religion, culture, natural resources, and preservation of the environment.

Hereupon the communal rights shouldn’t contradict the individual rights own by

every person.

6. Republic of Rakkab (“Respondent”) did not damage the right of Indigenous people

due to harvest of the Yak do not impact to the culture rights of the Indigenous people

because the Indigenous can still conduct their culture rights, therefore the respondent

do not have to pay any compensation to the Applicant.

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PLEADINGS AND AUTHORITIES

a. RAKKAB IS NOT RESPONSIBLE FOR THE INTERNATIONALLY WRONGFUL ACTS

DESCRIBED IN SUB-PARAGRAPHS (B)-(D), INFRA, BECAUSE DORTA’S ACTIONS

ARE ATTRIBUTABLE TO RAKKAB, OR IN THE ALTERNATIVE, RAKKAB IS

RESPONSIBLE FOR ITS OWN FAILURE TO PREVENT DORTA FROM COMMITTING

THOSE WRONGFUL ACTS;

Respondent is not responsible for the internationally wrongful acts because

Respondent has no control to determine Dorta’s harvest of the Yak. The responsibility

for internationally wrongful act article 5 stipulated that government authorities are

granted to privatize the department and article 23 stipulated that the unforeseen and

irresistible situation is included to force majeure

1. Respondent has no responsibility on Dorta’s act

Dorta’s conducted the harvest of the Yak was fully its own work without

Respondent responsibility. Respondent holds only approximately 12% of Dorta’s

stock1, therefore Respondent is the minority shareholders and Respondent has no

power to be responsible for Dorta’s act.

A. Respondent has no control to determine Dorta’s Policy

In February 1996, Respondent parliament adopted legislation to

privatize the Department of Research, Technology, & Application. And by 6

April 1996, DORTA was incorporated in Rakkab. According to DORTA

private charter, Respondent government must always own no less than 9,9%

and no more than 19,9% of the shares of DORTA. in present date, Respondent

1
Compromise paragraph 10

1
275R

holds approximately 12% of DORTA’s stock.2 Respondent is the minority

shareholders, in which sound by the 12% ownership of shares. Therefore,

respondent did not have power to control the policy of Dorta.

Based on the fact above, the Government authorities are granted by

legislation to privatize the Department, but no specific law to regulating

DORTA activities.3 by privatizing the Department, DORTA is no longer

determined as Organ of State. As in DORTA private charter Respondent

owned stock is limited minimum 9,9% and maximum 19,9% of DORTA

stock. As a Private company, DORTA policy determined from shareholder

meetings, With the limitation, Respondent has not enough power to set

DORTA’s policy unless with the acception of other shareholders.

B. Respondent act is to overcome the force majeure.

In the middle of 20th century, Respondent has witnessed a significant

increase in it rates of childhood and adult obesity, diabetes, and several other

lifestyle-related diseases.4 The unforeseen and irresistible situation and beyond

the control of the state.5 The solution to solve the situation is very needed. As

the DORTA tagline “the pursuit and dissemination of scientific discoveries,

including new medicines and treatments”,6 DORTA starting to find the way

out of this problem.

2
Ibid
3
Responsibility of States for Internationally Wrongful Acts article 5
4
Ibid Paragraph 12
5
Responsibility of States for Internationally Wrongful Acts article 23
6
Compromis Paragraph 9

2
275R

Dr. Issac Bello, DORTA pharmaceutical division employee, discover

never-before-identified enzyme found in the Gallbladder of the yak that

provides remarkable protection against diabetes and obesity.7 The enzyme is

the main ingredients of “Gallvectra” to treat insulin resistance-related disease,

and they started to mass produce Gallvectra due enormous global demand for

more than 85 country.8

Then DORTA filed a patent for “Gallvectra” to Rakkabi Intellectual

Property Ministry. The patent itself purposed to encourage creativity and

novelty and to protect original inventor.9 Although Aurokan people have

consumed Yak Gallbladders for many years and continue to do so, Dr. Bello is

the first to discover the Lustuk Enzyme as medical treatment of insulin-

resistant disease.10 The Patent poses no threat to inhibit the use of yak

gallbladders in accordance with Aurokan traditions.11

7
Compromis Paragraph 13
8
Ibid
9
Ibid Paragraph 17
10
Ibid Paragraph 18
11
Ibid

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b. THE HARVESTING OF THE YAK IN RAKKAB DID NOT VIOLATE RAKKAB’S

INTERNATIONAL OBLIGATIONS RELATING TO THE PROTECTION OF ENDANGERED

SPECIES AND THE ENVIRONMENT, INCLUDING THOSE UNDER RELEVANT

CONVENTIONS, AND RAKKAB IS OBLIGATED TO END YAK HARVESTING ON ITS

TERRITORY

Respondent did not violate its own international obligation because respondent

is consistent relating to the protection of the endangered species and respondent act on

the decision of CMS is consistent with its own international obligation.

1. Rakkab consistent with international obligations relating to the protection of

endangered species.

A. The situation provides Respondent the exception to harvest the yak

Respondent intention is to taking yak for scientific purposes and

extraordinary situation.12

1. Respondent harvesting Yak as Scientific Purposes

Gallbladder yak contain Lustuk Enzyme, the key ingredients of

Gallvectra.13 Due enormous demand for Gallvectra worldwide, it’s

necessary to produce the Gallvectra to fulfill the demand.14 Therefore,

Respondent has to cull the yak in limited amount based on the

regulation.15

12
Convention on the Conservation of Migratory Species of Wild Animals Section 5 Article 3
13
Compromis Paragraph 14
14
Ibid Paragraph 20
15
Ibid Paragraph 44

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2. Extraordinary Situation

The childhood and adult obesity, diabetes, and several other

lifestyle-related disease situation in Respondent state categorized as

force majeure,16 which unforeseen event and beyond the control of the

state.17 Hence, Gallvectra existent is very important to solve the

problem not just for Respondent, but worldwide scale as yak was

included in appendix 1 at the twelve meeting of the Conference of

Parties to the CMS,18 Respondent delegation inform their exception to

the secretary of CMS right away.19

3. Respondent act over the CMS decision is consistent with

International obligation

On 15 November 2017, Respondent ministry of agriculture

promulgated regulation AG/2017-0300 to response CMS decision on

the Yak.20 The regulation prior to prevent, reduce, and control factors

that endangering the species by set new regulation on new license for

yak hunting and terminate last license, and DORTA suspended all
21
payments for yak gallbladders. DORTA granted new license on 20

December 2017 that allows whole employees or agent of the company

16
Ibid Paragraph 12
17
Responsibility of States for Internationally Wrongful Acts article 23
18
Compromis Paragraph 43
19
Convention on the Conservation of Migratory Species of Wild Animals Section 7 Article 3
20
Compromise Paragraph 44
21
Convention on the Conservation of Migratory Species of Wild Section 4 point c Article 3

5
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to hunting yak for three years with limitation just for 30.000 yak

annually.22 Despite on January to February DORTA agent has killed

approximately 28.500 yaks, DORTA has not violating the license

unless the company has killed more than 30.000 yak in a year, as the

Ministry of Agriculture will monitor the compliance with the

requirements of the regulation and may impose fines on violators of

the conditions attached to any license.23

4. Respondent already oblige the international law by

promulgating Regulation AG/2017-0300

Respondent on 15 November 2017 promulgated regulation

AG/2017-030024 to respond to the CMS decision and in accordance

with its applicable law. The decision is making the Yak to be included

to the appendix I of the CMS, so Respondent respect and oblige the

decision by promulgating the new regulation to protect the Yak to

become extinct. Therefore, Respondent already oblige its own

international obligation relating on the protection on the endangered

species.

22
Compromis Paragraph 45
23
Ibid Paragraph 44
24
Ibid

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5. Gallvectra trade worldwide in accordance with international

law The sales of Gallvectra should obtain the management

authority as stated in CITES

Gallvectra worldwide sales at 2014 was reached 2 Billion euro

for more than 85 countries worldwide.25 The key ingredients of

Gallvectra is Lustuk Enzyme, specimen of the Yak gallbladder.

Gallvectra sales worldwide has been granted by management authority

of the state and for scientific authorities.26 DORTA expert have

advised that there are more than enough Yak to sustain harvesting at

this level, and the scientist are researching a synthetic alternative to the

Lustuk enzyme, meanwhile Gallvectra continue to help people

worldwide.27

Management authority that DORTA Granted is:

a. Permission for begin clinical and human trials from Respondent

Ministry of Health.28

b. A patent of Gallvectra from Respondent Intellectual Property

Ministry.29

25
Compromis paragraph 21
26
Convention on International Trade in Endangered Species of Wild Fauna and Flora section

1 Article 9
27
Compromis Paragraph 33
28
Ibid Paragraph 14
29
Ibid Paragraph 15

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c. Intellectual Property protection for Gallvectra on more than 85

countries.30

The management authorities obtained in contravention of the laws of

that State for the protection of fauna and flora.31 As the purposes of

producing Gallvectra is for scientific purposes and solve extraordinary

circumstances.32

6. Respondent did not cause any damage to the environment of

other States or of areas beyond the limits of national

jurisdiction.

Respondents who harvest yak have met the provisions of the

Rio Declaration on environment and development (1992) stated that

states have sovereign rights to exploit their own resources pursuant to

their own environmental and developmental policies and ensure that

acts of exploitation occur within jurisdictions and ensure that activities

from exploitation do not affect the environment of other states The

harvesting activities carried out as respondents, including the activities

of exploitation of resources that exist in any Respondents environment

that is available on Respondents sovereign rights,33 and the action does

not affect the respondent in the compromise of paragraph twelve

30
Ibid Paragraph 20
31
Convention on International Trade in Endangered Species of Wild Fauna and Flora Section

2 Point a Article 5
32
Convention on the Conservation of Migratory Species of Wild Animals Section 5 Article 3
33
Rio Declaration on environment and development Principle 2

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Rakkab since the mid-20th century witnessed an increase which is

significant in childhood and adult obesity rates, diabetes, and some

other lifestyle-related diseases that occur at the Convention on Wildlife

Living Species Migrant Conservation (CMS) Article III Endangered

Species: Appendix I which says that there are ignorance regarding

harvesting of Endangered Migrant Species in extraordinary

circumstances so require,34 Environmental exploitation carried out by

respondents in the form of harvesting does not violate the international

obligations by respondents for the interests of the country that is in dire

need and that includes the respondent's sovereign rights and does not

affect the region's applicants.

7. Implementation of Regulation AG/2017-0300 by Respondent in

order to ensure Environment Standard

Beside promulgated of the regulation as response on CMS


35
decision of the Yak being Appendix 1, Another purposes of the

regulation is to ensure the environment standard by terminating all

individual Yak hunting licenses, and only issue new license that only

consistent with section 5 of Article 3 of the CMS that only issued to

private companies.36 With Respondent discretion, may require the

license applicants to demonstrate their familiarity with relevant safety

and environmental rules, also may monitor and impose fines of the

34
Convention on the Conservation of Migratory Species of Wild Section 5 Article 3
35
Compromis Paragraph 44
36
Ibid

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violation on the compliance with the requirements of this regulation.37

Respondent has enact effective environment legislation to set

environmental standard reflect with environmental and developmental

to which they apply,38 and regulating to prohibit the disposal Yak

carcasses at the Gaur Highland.39

To achieve sustainable development and a higher life quality

for all people, Respondent reduce and eliminate unsustainable patterns

of productions and consumptions40. Application of regulation

AG/2017-0300 by Respondent Ministry of Agriculture,41 Respondent

has regulated yak killing only for licenses holders that consistent with

section 5 of Article 3 of the CMS and with limited number of yaks,42

and the Yak Gallbladder used as key ingredients of Gallvectra, the

medicines that vital and necessary to promote the right to health

worldwide.43

37
Ibid
38
Rio Declaration on environment and development Principle 11
39
Compromis Paragraph 24
40
Rio Declaration on environment and development Principle 8
41
Compromis Paragraph 44
42
Ibid
43
Ibid Paragraph 43

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c. THE HARVESTING OF THE YAK IN RAKKAB DID NOT VIOLATE THE CULTURAL AND

RELIGIOUS RIGHTS OF THE PEOPLE OF AUROK, AND RAKKAB MUST NOT PROHIBIT

SUCH HUNTING FORTHWITH.

The Yak harvesting done by Respondent in their own territory did not violate

the cultural and religious rights of the Applicant Citizens. Because of the mentioned

rights is included as a communal right belonging a community in accordance to the

ownership of religion, culture, natural resources, and preservation of the environment.

Hereupon the communal rights shouldn’t contradict the individual rights own by

every person.

1. The Harvesting of Yak was a measure to fulfil the individual rights of wider

society.

Individual rights were a form of human rights that is characterized as

universal, where every person have that rights as an inherent as a human being.

Groups may have rights of same kind, but they cannot be human rights. Human rights

must be borne by human individuals.44 Whereas communal or collective rights is a

derivative of individual right itself. As of that, communal rights should not infringe

the individual rights.

A. Ensuring the health of wider society

An adequate health standards and medical services classified as

individual human rights as on UDHR.45 For supporting the right of health and

44
Claire Archbold. The Incorporation of Civic and Social rights in domestic law, The

Globalization of Human Rights”, edited by Jean-Marc Coicaud, Michael W. Doyle, and

Anne- Marie Gardner, United Nations University Press, New York, 2003
45
Universal Declaration of Human Rights Article 25

11
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medical services as on UDHR, based on ICESCR, States has an obligation to

implement the prevention, treatment and control of epidemic, endemic,

occupational and other diseases.46 And assure all medical services and medical

attention are given in the event of sickness.47 More than that, states have an

obligation for protecting public health of its citizens to.48

Harvesting Yak for producing Galvectra is a step taken by Respondent

in order to fulfil the right of adequate health standards, medical services and

attention, and control of the diseases. Even become a form of protection of

public health because of the pathetic condition on significant increase in rates

of childhood and adult obesity, diabetes, and several other lifestyle-related

diseases that occur, and become threat of public health.49

Hence, harvesting Yaks by Respondent was a form to fulfil the

individual rights not only for Respondent citizens, but for the citizens of the

world, where Galvectra become a very important medicine on the worldwide,

proofed by Galvectra was added to the WHO Model List of Essential

Medicines.50 Therefore, the fulfilling of individual rights in the form of

producing Galvectra from the Yak harvesting can’t be blocked by the rights

from some group of peoples to using the natural resources only for benefiting

its group.

46
International Covenant on Economic, Social and Cultural Rights Article 12 Point 2 (c)
47
International Covenant on Economic, Social and Cultural Rights Article 12 Point 2 (d)
48
Trade Related Aspect of Intellectual Property Rights Article 8 Point 1
49
Compromise Paragraph 12
50
Compromise 37

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C. Right to Enjoy the benefits of scientific progress and its applications.

Every state has an obligation to recognize rights of everyone in terms

of enjoy the benefits of scientific progress and its applications.51 The

development of Galvectra from the Yak harvesting itself is a scientific

progress on a pharmaceutical scope. Accordingly, development and

application of scientific in the development of Galvectra as a medicine is

classified into these recognized rights. Applicant should respect freedom

indispensable for this scientific research.52

Moreover, to achieve the full realization of this rights the states has to

notice step in the context of conservation activities.53 Whereas Yak

Harvesting by Respondent has followed and doesn’t violate the provision of

CITES & CMS, so the Yak harvesting done by Respondent didn’t violate this

conservation step that must be done to ensuring the sustainability of the Yak.54

2. The State Sovereignty of Natural Resources

The natural resource on the territorial of the state is an owned by its state. In

another words Respondent have a sovereignty over its natural resource on the

respondent territory.55 The access of the Yak harvesting on Respondent territory is

regulated by Respondent national law. Such matter is appropriate within article 15 of

CBD. Other states should respect the sovereignty owned by Respondent over its

natural resource.

51
International Covenant on Economic, Social and Cultural Rights Article 15 Point 1(b)
52
International Covenant on Economic, Social and Cultural Rights Article 15 Point 3
53
International Covenant on Economic, Social and Cultural Rights Article 15 Point 2
54
Compromise Paragraph 44 & 45
55
Convention on Biological Diversity Article 15 Point 1

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d. RAKKAB MUST NOT PAY AUROK, A PORTION OF THE PROFITS REALIZED FROM

SALES OF THE DRUG GALVECTRA, BECAUSE THE APPROPRIATION AND

EXPLOITATION OF TRADITIONAL KNOWLEDGE BELONGING TO THE AUROKAN

PEOPLE WITHOUT COMPENSATION IS CONSISTENT WITH INTERNATIONAL LAW.

1. The action conducted by the Respondent already consist with the

international law

A. The patent that applied by the respondent has been granted by the

government

The granting patent by Respondent government already in accordance

with the applicable national law, there is no need for compensation to the

Applicant. Therefore, The Respondent has obliged the national law and there

is no breach for its own international obligation.

B. The Yak harvesting conducted by the respondent cause no impact to

applicant Traditional Knowledge

The Yak harvesting done by Respondent did not affect traditional

knowledge owned by the Aurokan people. In the fact that the Yak still

unharmed and still available to fulfil its original purposes. The Yak harvesting

didn’t make the Yak extinct, Respondent has done all measure to ensure the

Yak sustainability included limiting the hunter license. The patent doesn’t

make Aurokan people will be outlawed from using it as their traditional

knowledge. Therefore, there is no impact for traditional knowledge of the

Aurokan people.

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C. The Yak harvesting conducted by the respondent in its own territory

States have the sovereign right to exploit their own resources regulated

by its own policies as long as it still responsible within their jurisdiction or

control to make no damage to the environment of other states. 56 In case of

ensuring no damage, the action conducted by respondent is consistent with the

CMS and CITES, by Regulation AG/2017-0300 promulgated by Rakabi

Ministry of Agriculture.57

56
Convention on Biological Diversity Article 3
57
Compromise Paragraph 44

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PRAYER FOR RELIEF

1. Rakkab is not responsible for the internationally wrongful acts described in

subparagraphs (b)-(d), infra, because DORTA’s actions are attributable to Rakkab, or

in the alternative, Rakkab is responsible for its own failure to prevent DORTA from

committing those wrongful acts.

2. The harvesting of the Yak in Rakkab did not violate Rakkab’s international

obligations relating to the protection of endangered species and the environment,

including those under relevant conventions, and Rakkab is obligated to end Yak

harvesting on its territory.

3. The harvesting of the Yak in Rakkab did not violate the cultural and religious rights

of the people of Aurok, and Rakkab must prohibit such hunting forthwith.

4. Rakkab must not pay Aurok, a portion (to be determined in subsequent proceedings)

of the profits realized from sales of the drug Gallvectra, because the appropriation and

exploitation of traditional knowledge belonging to the Aurokan people without

compensation is inconsistent with international law.

xvi

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