Memorial For Respondent
Memorial For Respondent
(APPLICANT)
V.
(RESPONDENT)
TABLE OF CONTENT
Table of Content.......................................................................................................................ii
UN DOCUMENTS ............................................................................................................... v
ACTS; .................................................................................................................................. 1
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TERRITORY ........................................................................................................................ 4
A. The situation provides Respondent the exception to harvest the yak ........... 4
obligation ................................................................................................................ 5
CITES ..................................................................................................................... 7
6. Respondent did not cause any damage to the environment of other States
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
1. The Harvesting of Yak was a measure to fulfil the individual rights of wider
society. .......................................................................................................................... 11
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D. RAKKAB MUST NOT PAY AUROK, A PORTION OF THE PROFITS REALIZED FROM
A. The patent that applied by the respondent has been granted by the
government .............................................................................................................. 14
C. The Yak harvesting conducted by the respondent in its own territory ...... 15
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INDEX OF AUTHORITIES
UN DOCUMENTS
2001 Articles on Responsibility of States for Internationally
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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
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QUESTION PRESENTED
I. Whether Rakkab is not responsible for the internationally wrongful acts described
Rakkab, or in the alternative, Rakkab is responsible for its own failure to prevent
II. Whether The harvesting of the Yak in Rakkab did not violate Rakkab’s
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
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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
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
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
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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
stewardship, Rakkab emerged as a regional power in the 1970s, and today has a diversified
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.
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
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
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
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
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concern at what it called “the disruption of the delicate balance between the Yak and human
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
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.
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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
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
REGULATION AG/2017-0300
In response to the CMS decision, and in accordance with applicable law, on 15 November
provides:
1. All licenses permitting the hunting of the Kayleff Yak issued prior to
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;
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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
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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.
DORTA’s policy unless with the acception of other shareholders. Therefore, the
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.
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
sovereign rights. therefore, respondent did not violate its own international obligation
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not violate the cultural and religious rights of the Aurokan People. Because the rights
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
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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
Dorta’s conducted the harvest of the Yak was fully its own work without
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
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meetings, With the limitation, Respondent has not enough power to set
increase in it rates of childhood and adult obesity, diabetes, and several other
the control of the state.5 The solution to solve the situation is very needed. As
including new medicines and treatments”,6 DORTA starting to find the way
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
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and they started to mass produce Gallvectra due enormous global demand for
consumed Yak Gallbladders for many years and continue to do so, Dr. Bello is
resistant disease.10 The Patent poses no threat to inhibit the use of yak
7
Compromis Paragraph 13
8
Ibid
9
Ibid Paragraph 17
10
Ibid Paragraph 18
11
Ibid
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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
endangered species.
extraordinary situation.12
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
force majeure,16 which unforeseen event and beyond the control of the
problem not just for Respondent, but worldwide scale as yak was
International obligation
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
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
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to hunting yak for three years with limitation just for 30.000 yak
unless the company has killed more than 30.000 yak in a year, as the
with its applicable law. The decision is making the Yak to be included
species.
22
Compromis Paragraph 45
23
Ibid Paragraph 44
24
Ibid
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advised that there are more than enough Yak to sustain harvesting at
this level, and the scientist are researching a synthetic alternative to the
worldwide.27
Ministry of Health.28
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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countries.30
that State for the protection of fauna and flora.31 As the purposes of
circumstances.32
jurisdiction.
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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need and that includes the respondent's sovereign rights and does not
individual Yak hunting licenses, and only issue new license that only
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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has regulated yak killing only for licenses holders that consistent with
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
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
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.
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
derivative of individual right itself. As of that, communal rights should not infringe
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
Anne- Marie Gardner, United Nations University Press, New York, 2003
45
Universal Declaration of Human Rights Article 25
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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
in order to fulfil the right of adequate health standards, medical services and
individual rights not only for Respondent citizens, but for the citizens of the
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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Moreover, to achieve the full realization of this rights the states has to
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
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
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
international law
A. The patent that applied by the respondent has been granted by the
government
with the applicable national law, there is no need for compensation to the
Applicant. Therefore, The Respondent has obliged the national law and there
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
Aurokan people.
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States have the sovereign right to exploit their own resources regulated
Ministry of Agriculture.57
56
Convention on Biological Diversity Article 3
57
Compromise Paragraph 44
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in the alternative, Rakkab is responsible for its own failure to prevent DORTA from
2. The harvesting of the Yak in Rakkab did not violate Rakkab’s international
including those under relevant conventions, and Rakkab is obligated to end Yak
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
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