Applicant 1: Pleading Questions

Question 1

What does lex specialis mean?

Answer 1

The idea that more specific rules should be applied over general rules of international law has long been recognised in international jurisprudence.

In fact, Hugo Grotius himself in De Jure belli ac pacis. Libri Tres. stated that ‘among agreements which are equal…’ preference should be given to that which is most specific.. and ‘near to the subject at hand.’

Also mentioned in Art 30 and 31 in VCLT , with regards to treaty interpretation.

Question 2

When did the Outer Space Treaty enter into force?

Answer 2

October 1967

Question 3

What resolution brought the Outer Space Treaty into force?

Answer 3

General Assembly resolution 2222 (XXI)

Question 4

What does Art 7 of the OST set out?

Answer 4

Each state party to the treaty that LAUNCHES OR PROCURES the launching of an object in outer space,

is INTERNATIONALLY LIABLE for damage to another State Party to the Treaty.

Question 5

Is Maleen a state party to the OST?

Answer 5

In para 27 (part 1) of the case states that Jonam and Maleen are states parties to any relevant treaties cited.

Question 6

When did the Liability Convention enter into force?

Answer 6

entered into force September 1972.

Question 7

What resolution created the SLC?

Answer 7

Res 7777 (XXVI)

Question 8

What does Art 2 of the SLC provide?

Answer 8

That a launching state shall be ABSOLUTELY LIABLE to pay compensation for damage caused by its space objects on the surface of the earth or to aircraft.

Question 9

What does absolutely liable mean under SLC?

Answer 9

Unlimited liability.

This is the first time states were explicitly subjected to this high standard of liability..

Question 10

What does Art 6 of SLC set out?

Answer 10

Liability can be exonerated if launching state can prove:

1. Damage resulted wholly or partially from gross negligence of claimant state;
2. From an act or omission done with intent to cause damage on part of claimant state.

Question 11

What does Art 8(1) of the SLC set out?

Answer 11

A State which suffers damage, or whose natural or juridical persons suffer damage, may present to a launching State A CLAIM FOR COMPENSATION for such damage.

Question 12

What is the three step approach?

Answer 12

1) Whether injury has been established;
2) Whether the injury is a consequence of the wrongful act;
3) Having established the two former steps, the value of compensation.

Question 13

Where can the three step approach be found?

Answer 13

Para 14 of Diallo

Question 14

What happened in Diallo?

Answer 14

The case Ahmadou Sadio Diallo concerns a claim of diplomatic protection brought by the Republic of Guinea (“Guinea”) against the Democratic Republic of Congo (“DRC”) before the International Court of Justice (“ICJ”, “the Court”). Guinea alleged that the DRC had violated the rights of Mr. Ahmadou Sadio Diallo, a Guinean citizen, by arresting and subsequently expelling him from its territory.

Court: Found violations of Diallo’s rights under international human rights law and as a shareholder in two congolese companies.

This was the second time the Court decides on damages and the first time it decided on damages for human rights violations.

Question 15

What is the legal basis for causation in this case?

Answer 15

Art 2 SLC: A launching state shall be absolutely liable for damage CAUSED by its space object on surface of the earth or aircraft in flight.

But also: ILC - clear and unbroken link.

Question 16

What does Art 38 set out?

Answer 16

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

international custom, as evidence of a general practice accepted as law;

the general principles of law recognized by civilized nations;

subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Question 17

What does Art 12 of SLC set out?

Answer 17

Compensation owed by launching state should be determined in accordance with international law and the principles of equity.

Question 18

Why a ‘clear and unbroken causal link?’

Answer 18

The ILC Articles on State Responsibility do not contain an explicit causal test.

The Commentary to Article 31 acknowledges the difficulties of formulating an overarching principle of causation: the question of remoteness of damage “is not a part of the law which can be satisfactorily solved by search of a single verbal formula”’.

Commentary outlines the minimum causal requirements which need to be satisfied to obtain reparations for an internationally wrongful act.

INTERNATIONAL CUSTOM > Judicial decisions

Question 19

What are equitable considerations?

Answer 19

In Al Jedda v UK (ECHR)

Its guiding principle is equity,

which above all involves flexibility and an objective consideration of what is just, fair and reasonable in all the circumstances.

This was cited by the Court in para 24 of Diallo.

Question 20

Can delayed/ future damages be compensated for?

Answer 20

Yes.

This was foreseen by the Legal Sub-Committee of the LC which made allowance for delayed damages in the provisions. This dealt with time limits for the submission of claims.

Foster 170-171.

Question 21

Can the ICJ apply decisions for Inter American Court of Human Rights and European Court of Human Rights?

Answer 21

The Court has often applied decisions within the Inter American Court and the ECtHR to guide its decisions under the ICJ Statute.

For example, in para 24 of Diallo (Guinea v DRC), the Court used the definitions applied in Al Jedda v UK and Cantoral Benavides v Peru to guide it application of equitable considerations.

Question 22

What happened in Al Jedda v UK?

Answer 22

Al Jedda involved the indefinite detention of a dual British/Iraqi citizen in a Basra facility run by British forces.

In 2007, the House of Lords ruled unanimously that the detention was lawful because the UK government had been authorised by UN Security Council resolution 1546.

On 7 July 2011, the Grand Chamber held that the Security Council resolution did not displace the UK government’s obligations to protect the right to liberty under Article 5 of the European Convention on Human Rights.

Question 23

What does Art 36 (1) say?

Answer 23

State liable for internationally wrongful act has a duty to pay compensation for the damage, if it is not made good by restitution.

Question 24

What does Art 36(2) say?

Answer 24

2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.

Question 25

Why is restitution not applicable here?

Answer 25

Articles 35 and 36(1): restitution constitutes the PRIMARY FORM of full reparation, with compensation being owed where restitution is materially impossible or involves “a burden out of all proportion to the benefit deriving from restitution instead of compensation.”

However, as SLC is lex specials, only compensation is recognised as the appropriate reparation to return a state to the situation it would have been in had the breach not occurred.

Question 26

What is ‘financially assessable’ damage?

Answer 26

As phrased by renown scholar James Crawford, financially assessable damage is damage that can be measured in financially terms.

As supported by subsequent case law, and the ILC’s commentary on Art 36, this is intended to include material and moral damage.

Question 27

Why is compensation necessary for material and moral damage in the present case?

Answer 27

As the Umpire said in the “Lusitania” case (page 39):

The remedy should be commensurate with the loss, so that the injured party may be made whole.

or Chorzow Factory: should be returned to the original position had the damage not occurred.

Here, material and moral damages are required to full restore the parties their original position.

Question 28

What are the facts of Al Mahdi?

Answer 28

On 17 August 2017, Trial Chamber VIII of the ICC issued its Reparations Order in the Al Mahdi case.

The Chamber found that Al Mahdi was liable for 2.7 million euros for (a) the damage caused by the attack of nine mosques and the Sidi Yahia Mosque door; (b) the economic loss caused to the individuals whose livelihoods depended upon the tourism and maintenance of these ‘Protected Buildings’ and to the community of Timbuktu as a whole; and (c) the moral harm caused by the attacks.

It is one of the rare opportunities public international law has been applied to award reparations for cultural heritage destruction.

Question 29

What is the UN Claims Commission? What was its mandate?

Answer 29

The Commission was established in Geneva as a subsidiary organ of the UN Security Council under Security Council resolution 687 (1991) to process claims and pay compensation for losses and damage suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait in 1990-1991; https://www.ungeneva.org/en/news-media/press-release/2022/02/governing-council-united-nations-compensation-commission-holds

The applicable decision was the Decision taken by the Governing Council of the UN Compensation Commission during its second session, at the 15th meeting, held on 18 October 1991. It ruled on Personal Injury and Mental Pain and Anguish.

Question 30

Who is Beate Ritz?

Answer 30

Beate Ritz, MD and PHD, is a professor of epidemiology at UCLA.

Question 31

Who is Scott Helmers?

Answer 31

Department of Orthopedic Surgery, Naval Medical Center Portsmouth

Question 32

What does Art 12 of SLC state?

Answer 32

Compensation for the liability of the launching state shall be determined in accordance with international law and the principles of justice and equity.

Question 33

The case states the death of 28 pangolins and the severe harm to 28 pangolins.

Why are you arguing death of 54 pangolins?

Answer 33

Ask Gian

Question 34

Why are animals property?

Answer 34

To determine whether animals constitute damage as property, Jonam applies general principles of the law of civilised nations (Art 38 of ICJ Statute).

Art 90a German Civil Code: Animals are not things. They are protected by special statutes.

Art 641a: Under section of ‘ownership,’ (1) Animals are not objects but (2) where no special provisions exist for animals, they are subject to provisions governing objects.

This means that where, for example in the present case, animals are not provided for by otherwise special provisions, then they will be considered to be objects owned by the state. They are considered ‘legal things’ as opposed to legal persons.

Question 35

What is the ecosystem services approach?

Answer 35

(para 47, Costa Rica v Nicaragua 2018):

The value of an environment is comprised of goods and services that may or may not be traded on the market.

Goods and services that are traded on the market have a direct use value whereas those that are not (such as flood preventing or gas regulation) have an indirect use value; See also other journal articles.

Question 36

Does the ICJ support the ecosystem services approach?

Answer 36

(Para 52, Costa Rica 2018): The Court notes that the valuation methods proposed by the parties are sometimes used for environmental damage valuation in the practice of national and international bodies, and are not therefore devoid of relevance to the task at hand.

However, they are not the only methods used by such bodies for that purpose, nor is their use limited to valuation of damage since they may also be used to carry out cost/benefit analysis of environmental projects and programmes for the purpose of public pol- icy setting (see for example UNEP, “Guidance Manual on Valuation and Accounting of Ecosystem Services for Small Island Developing States” (2014), p. 4).

The Court will not therefore choose between them or use either of them exclusively for the purpose of valuation of the damage caused to the protected wetland in Costa Rica. Wherever certain elements of either method offer a reasonable basis for valuation, the Court will nonetheless take them into account.

Question 37

Monitoring and remedying: What happened in UNCC ‘Report and recommendations made by the panel of commissioners concerning the fifth installment of “F4” claims’ (30 June 2005) para 27?

Answer 37

Para 27 – ‘Direct environmental damage and the depletion of natural resources’ includes losses or expenses resulting from:

(b) Reasonable measures already taken to clean and restore the environment or future measures which can be documented as reasonably necessary to clean and restore the environment;

© Reasonable monitoring and assessment of the environmental damage for the purposes of evaluating and abating the harm and restoring the environment;

(d) Reasonable monitoring of public health and performing medical screenings for the purposes of investigation and combating increased health risks as a result of the environmental damage; and

As well as ‘depletion of or damage to natural resources.’

Question 38

What are direct use values?

Answer 38

CR v Nic: Goods traded on the market.

Jason Rudall, ‘Compensation for Environmental Damage’(pg 6) direct use values compromise economic utility to individuals. Goods or services consumed directly or indirectly in production process or experience value.

Question 39

What are indirect use values?

Answer 39

CR v Nic: They are not goods traded on the market.

Rudall (96): They include the functional value or ecosystem services rendered by the environment. As such, society derives benefits from the functions of the environment (eg carbon sequestration, flood control, storm protection).

Question 40

What are non-use values?

Answer 40

Rudall (96): May comprise existence values, altruistic or bequest values.

Existence – the utility derived from knowing the natural environment exists and is protected. This is determined by individuals’ willingness to pay to keep a resource for the sake of its existence.

Bequest – utility derived from knowing that the environment will be preserved for future generations.

Altruistic value – utility in the knowledge that natural goods may be available for others in the present generation to enjoy.

Question 41

Why not use the overall approach?

Answer 41

In paragraph 79 of CR v Nic, the Court observed that an overall valuation would account for the most significant damage that occurred – the removal of trees – as removal of trees could be correlated to the harm caused to other environmental goods.

Here, damage to an elephant, for example, does not caused damage to the pangolins. They are not correlated.

Question 42

Is there a hierarchy of sources under international law?

Answer 42

Under Art 38(1)(d), judicial decisions and the teachings of the most highly qualified publicists of the various nations are subsidiary means for the determination of rules of law.

Question 43

What was the DRC v Uganda’s causation standard?

Answer 43

Sufficiently direct and certain causal nexus.

Not an uninterrupted chain of events linking the damage to Uganda’s wrongful conduct.

Question 44

Why do we adopt ILC Report, before the recent judgment of DRC v Uganda, in order to assess causation?

Answer 44

ILC and general principles of international law > judicial decisions.

The ILC Articles on State Responsibility do not contain an explicit causal test. The Commentary to Article 31 acknowledges the difficulties of formulating an overarching principle of causation: can’t be resolved by single verbal formula.

The requirements of sufficiency (‘a sufficient causal link’) and proximity (‘that is not too remote’) emerge from the text as the main yardsticks

Clear and unbroken causal link.