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PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT 2017–2018 APPLICATION

About Columbia Jessup Application Instructions

Written Application Materials

Welcome to Columbia Law School! We are thrilled that you are considering applying to the Columbia Jessup team and look forward to reading your applications. Enclosed you will find more information about the team, instructions on completing your written submission, a Compromis (a set of agreed upon facts and pleadings; the application problem), and materials for you to use in crafting your argument. Please pay particular attention to the submission rules and deadlines. This year, the team is seeking three new members. We have no class preferences in our selection process. We understand that 1Ls may have relatively limited exposure to legal writing and argumentation; this will not be held against 1L applicants. We merely seek interested and motivated new members with strong writing and speaking skills. No prior competitive public speaking experience or knowledge of international law is necessary.

Please read the entirety of this packet before beginning your application, and email columbia.jessup@gmail.com with any questions about these instructions, the application process, the time commitment, or anything else related to law school. We look forward to reading your submissions.

Good luck!

Phil Andriole ’19 & Anika Havaldar ‘19

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ABOUT COLUMBIA JESSUP The Jessup Competition The Philip C. Jessup International Law Moot Court Competition is the world’s largest moot court competition, with participants from more than 600 law schools across over 95 nations. The competition simulates a dispute between two countries before the International Court of Justice (ICJ), the judicial arm of the United Nations. Each team prepares oral and written submissions arguing both positions (Applicant and Respondent) of the case. The International Rounds, which are held in Washington, D.C., are judged by the world’s top international law practitioners, jurists, and scholars. The final round is regularly judged by sitting ICJ judges. You can learn more about the competition at: www.ilsa.org/jessup. This year’s “Compromis,” or competition problem, concerns topics including the validity of interstate arbitral awards, breach of nuclear disarmament obligations, capture of a marine vessel, and conduct of naval warfare. We strongly encourage you to read the problem on the ILSA website when it is released on September 15th, and see if the subjects engage and excite you.

Columbia’s Team Participation on the Columbia team is a tremendously rewarding experience that gives students access to exceptional coaching in legal writing and oral advocacy, a forum for intellectually stimulating discussions on issues of international law, and an opportunity to meet law students and practitioners from around the world. It also provides an opportunity to connect with Columbia’s world-class international law faculty. In the past years, the team has worked with Professors Lori Damrosch, Sarah Cleveland, and Matthew Waxman; Visiting Professors Claus Kreß, and Mila Versteeg; Visiting Fellow Amal Clooney; and Lecturers-in-law Delyan Dimitrov and Viren Mascarenhas to prepare for the competition. Alumni play an especially important role on the Columbia Jessup Team and collaborate closely with current members.Participants will therefore have access to a superb network of former participants, including alumni in law firms, international organizations, nonprofits, and the federal government. The structure of the Columbia team differs in three important respects from most other Columbia moot court teams. First, the five-person team collaborates on every written submission. As a new member, you will have principal responsibility for writing a portion of one of the two memorials, and you will share responsibility with the other members of the team for editing the remainder of the written submissions. Second, every member of the five-person team can expect to argue in the oral competition, both at the regional and international levels. Finally, Jessup is a two-year commitment.1 In the recent past, several eligible team members have opted to stay on for a third year, though that is by no means mandatory. 1Ls who join the team are excused from the ordinary 1L spring moot court competition and will be placed in a specialized Legal Practice Workshop. 2Ls may also receive up to 3 academic credits and satisfy their minor writing requirement. 1 The two-year requirement does not apply to 3Ls, LLMs, and 2Ls in joint JD-LLM programs.

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2017–2018 SCHEDULE Jessup participation is a significant time commitment. It also is incredibly rewarding. Many, if not most, Jessup alumni describe participation as the highlight of their Columbia Law School experience. Participation will afford you a unique opportunity to engage with dynamic issues of public international law and public policy while honing your legal writing and oral argument skills.

Once selected, the team will immediately begin researching and familiarizing new members with international law, oral advocacy, and the Jessup competition. Research will continue until mid-November. No work is done for the entire month of December until after finals and the holidays. Written submissions are due during the winter vacation period, and the team will reconvene in early January, before the start of classes. During the spring semester, the team will practice oral argument skills at regular meetings and will attend a weekend-long retreat. All team members will participate in oral arguments at the Regional Rounds. If the team succeeds at the regional level, the team will advance to the International Rounds. Travel and accommodation will be funded by Columbia Law School.

The following is a tentative schedule for the 2017-2018 Jessup season. Please note that the Northeast Regional qualifying round has not yet been scheduled but will fall on a weekend (probably in mid to late February). Because the Columbia team is so small and relies on the involvement of every member, we cannot accept applications from anyone who cannot return to campus in early January or attend the entire duration of the Regional and International Rounds. If you have questions or concerns about this schedule, please let us know. Date Milestone October 2nd, 2017 Selection of New Members October 3rd, 2017 Anticipated Released of First Batch of Basic Materials: The

Basic Materials are a collection of research materials, designed to ensure that all teams, regardless of budget and access to information, start from the same position.

November 22nd, 2017 Completion of Outlines, Pre-Exam “Freeze” on Jessup Activity December 13th, 2017 Anticipated Release of Second Batch of Basic Materials January 4th, 2018 Return to Columbia for Memorial Writing January 12th, 2018 Deadline for Submission of Memorials February – March, 2018 Qualifying Rounds (Weekend, New York City, Date TBD) April 1st 2018 – April 7th, 2018 International Rounds (Washington, D.C.)

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APPLICATION INSTRUCTIONS Please keep in mind the following application rules. Failure to adhere to these policies will result in disqualification of your application and in particularly egregious cases, referral to the Dean for further disciplinary action. 1. Submissions must be the product of your own original and independent work. Please refrain

from discussing your submission with others. 2. The written application is a “closed universe” problem. You may not reference any law,

facts, or publications not included in the enclosed materials. This prohibition includes past Jessup/ILSA materials, memorials, or publications.

3. Please note that the written application materials have been edited and may deviate from their

original sources and actual law. Submission and Formatting Instructions 1. Review the attached materials and prepare a written submission of no more four pages,

double-spaced, in 12-point Times New Roman font, left-aligned, with 1 inch margins on all sides, and page numbers centered in the footer.

2. Convert your written submission into a PDF document and name this document according to the following naming convention: [1L/2L/3L/LLM]_[last name].pdf. For example, if a 1L named Jane Smith were applying, her submission would be named: 1L_Smith.pdf.

3. Prepare a one-page PDF resume without your name or contact information. Please

name this document according to the following naming convention: [1L/2L/3L/LLM]_Jessup_Resume.pdf.

4. Send an email with your name, class year, email, and phone number in the body of the

email, and attach your resume and written submission, to columbia.jessup@gmail.com with the subject heading “1L Application,” “2L Application,” “3L Application,” or “LLM Application,” as appropriate.

5. In order to preserve the anonymity of the application process, we will be assigning each

applicant a competition number upon receipt of your materials. You do not have a competition number yet, so please do not worry about including it with your materials. With the exception the email and the file name of your written submission, your name or other identifying information should not appear anywhere in your application.

All submissions are due by Thursday, September 21 at 11:59 PM (Eastern Time). Extensions to this deadline will not be granted except in extraordinary circumstances. Submissions must be emailed to columbia.jessup@gmail.com.

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Written Application Instructions Please write an argument that Rahad’s extraction of water from the aquifer either did or did not violate Rahad’s obligations under international law. Keep in mind that, if invited back for the oral argument portion of the tryout, you will be asked to argue the opposite position from that which you chose to argue in the written portion.

The following information is adapted from the Compromis of the 2016-2017 Jessup competition. For the purposes of your argument, please regard the information as full and complete. Do not make factual assertions that are unsupported by the information in the Compromis. You may, however, draw clearly-supported inferences. If you find any factual inconsistencies or omissions, the resolution of which is crucial to your argument, please email columbia.jessup@gmail.com for clarification.

You do not need to acknowledge strong arguments on the opposing side. Instead, advocate your side of the issue – the most convincing arguments, not necessarily the most balanced, will be most successful. Include only your argument, without other traditional brief sections (i.e., no ‘statement of fact,’ ‘questions presented’). You also do not need to write an extensive introduction or conclusion. Either clear headers or a one- or two-sentence roadmap at the outset will suffice. You should focus on developing the substance of your argument.

Strong applications are well organized, draw effectively on the materials provided, identify the most persuasive arguments in support of their positions, and are free of grammar and spelling errors. Clear, concise writing is preferred to flowery, academic styles. Clarity of citation to materials in the packet is more important than any particular form. Cite the sources in conformity with the Table of Authorities, listed below, with an article or paragraph number, if provided. While you may use any source within this packet, do not feel compelled to use everything. You are free to demonstrate your ability to distinguish between relevant and irrelevant information.

Special Instructions for 2L, 3L and LLM candidates: For the 2017-2018 Jessup Application, 2L, 3L, and LLM candidates may submit an independently written and edited brief or portion of a brief. Please submit samples in conformity with the submission instructions above. Candidates should ensure that no identifying information appears anywhere in the writing sample.

Note: we cannot accept applications from anyone currently licensed to practice law in any jurisdiction.

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WRITTEN APPLICATION MATERIALS – TABLE OF AUTHORITIES

Authority Cite As Page

Compromis Compromis 1

Pleadings Pleadings 4

Statute of the International Court of Justice ICJ Statute 5

“The Sources of International Law,” from Brownlie’s Principles of Public International Law Brownlie’s 6

The Gabcikovo-Nagymaros Project Case Gabcikovo 8

The Armed Activities Case Armed Activities 9

The Nuclear Tests Case Nuclear Tests 10

The Berlin Rules on Water Resources Berlin Rules 11

Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries

Thereto

Guiding Principles 12

International Law Commission, Articles on the Law of Transboundary Aquifers ILC Articles 13

Vienna Convention on the Law of Treaties VCLT 14

Articles on the Responsibility of States for Internationally Wrongful Acts ARSIWA 15

Ninth Report of Special Rapporteur Mr. Cedano on the Unilateral Acts of States, DOCUMENT A/CN.4/569 and Add.1

Unilateral Acts Report 16

International Law for a Water-Scarce World Water-Scarce 17

Oxford English Dictionary Oxford 18

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INTERNATIONAL COURT OF JUSTICE

THE FEDERATION OF THE CLANS OF THE ATAN v. THE KINGDOM OF RAHAD

1. Applicant, the Federation of the Clans of the Atan (“Atania”), and Respondent, the

Kingdom of Rahad (“Rahad”), are neighboring states that occupy the Nomad Coast. The Nomad Coast, characterized by arid and semi-arid lands, is bounded to the north by the Great Garnet Desert and is otherwise surrounded by the Emerald Ocean.

2. Atania is a newly-industrializing state located in the eastern two-thirds of the Nomad

Coast. As of 1 January 2015, Atania had a population of just over 22 million. Seventy-five percent of the GDP of Atania is based on the extraction and exportation of hydrocarbons; the country’s other major sources of revenue are tourism and grain exports. In January 2010, the country’s GDP was US$102 billion, although by January 2016, it had fallen to US$80 billion.

3. The Kingdom of Rahad, a constitutional monarchy, occupies the western third of the

Nomad Coast. Rahad’s largest export is natural gas. Rahad’s GDP in January 2016 was estimated at US$11 billion. According to the February 2014 census, its population was 3.5 million.

4. The Greater Inata Aquifer (“the Aquifer”) is the largest underground source of fresh

water in the Nomad Coast and is one of the largest aquifers in the world. People of the Nomad Coast have relied upon discharge from the Aquifer for many generations, but a definitive map of the Aquifer itself was not produced until 1990.

5. As a result of record low rainfall, the entire Nomad Coast experienced sustained drought

conditions in each year from 1983 to 1988. Both Atania and Rahad were forced to import water from other countries at great expense. In order to reduce its reliance on imported water, Rahad permitted the drilling of wells on public land for private, agricultural, and commercial use.

6. In 1988, the Rahadi Ministry of Water and Agriculture hired a team of hydrologists from

Alberta, Canada to map the sources of its subterranean fresh water. Using ground-penetrating radar, the hydrologists conducted the first in-depth study of the Greater Inata Aquifer. Their initial report, published in 1990, included a detailed map and concluded that the Aquifer covered more than 274,000 square kilometers within the Nomad Coast, of which 65% was located in Rahad and 35% in Atania. The Ministry then commissioned the hydrologists to undertake a more in-depth study to monitor the recharge rate and salinization of the Aquifer over the next 10 years.

7. On the first UN World Water Day, 22 March 1993, Queen Teresa and the Atanian

President, Alexander Vhen, appeared together at a ceremony in Atanagrad, the Atanian

COMPROMIS

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capital, to recognize and celebrate the importance of water to all peoples. In a nationally-televised address, the Rahadi Minister of Water and Agriculture said:

The people of Rahad today join our Atanian neighbors and the world in recognizing the importance of water to all who live on the Nomad Coast. In honor of this World Water Day, Rahad promises to make every reasonable effort to preserve and protect the shared fresh water resources of our Nomad Coast and to ensure their equitable use. Future generations must be assured that they will never be denied access to these valuable, unique resources, on which life and prosperity depend, and without which we cannot survive.

The Minister’s Atanian counterpart responded with a message communicating the “appreciation of the Atanian people for this neighborly gesture of cooperation and brotherhood.”

8. In a speech on the 5th World Water Day in 1998, UN Secretary General Kofi Annan

recalled the Rahadi Minister’s statement:

Rahad’s commitment to preserve and protect the water resources it shares with Atania and to make sure that they are used equitably is a testament to the inspiration that lies behind the UN World Water Day.

9. In 2000, the follow-up report from the team of hydrologists found that the Aquifer

contained approximately 35 cubic kilometers of extractable fresh water. The report indicated that the major deposit of the Aquifer’s waters occurred more than 10,000 years ago; because of the arid climate of the Nomad Coast, the recharge rate of the Aquifer is negligible, and any water extracted from it would not be replenished for many generations.

10. Drought conditions returned to the region, beginning in 1999 and continuing to the

present day, with record-low rainfall recorded throughout the Nomad Coast. In 2001, meteorologists in the Atanian State Weather Service reported that there had been a 1.6-degree Celsius average temperature increase throughout the Nomad Coast during the period 1970 to 2000. The head of the Service repeatedly expressed concern that “the combined impact of these meteorological and climatological changes on fresh water sources in the Nomad Coast is likely to result in a long-term shortage of water for the people of both Rahad and Atania.”

11. In her annual birthday address on 16 June 2002, Queen Teresa stated that it was her

government’s desire to improve access to the waters of the Aquifer, to ensure that the needs of the Rahadi people could be met. She described the Aquifer as “a fundamental natural resource of our country,” and declared that, “as a developing nation suffering the effects of extreme drought and climate changes, Rahad has the right and indeed the obligation to seek out ways of using that resource to sustain our people.” On the next day, she formally directed the Inata Logistic and Scientific Association (“ILSA”), a Rahadi government-funded scientific organization, to study the feasibility and long-term effects of directly tapping the Aquifer to meet Rahad’s domestic need for water.

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12. ILSA released its report on 17 January 2003. It concluded that, in light of projected consumption, growth and development, completely ending Rahad’s reliance on imported water and re-establishing self-sufficiency would require an alternative supply of approximately 1.2 cubic kilometers of water per year. Extraction of water from the Aquifer at this rate would deplete its total extractable fresh water reserve in approximately 30 years.

13. On 2 February 2003, Queen Teresa made a televised appearance to the nation, setting out

her plans to address the increasingly serious water crisis in Rahad:

Our nation is confronted with a very grave dilemma, and I want all of our people to understand how your government is proposing to deal with it. We simply do not have enough water to sustain our farmers, who grow our food and provide our sustenance, and there is no obvious solution to this problem that is economically viable and practically possible. None, that is, except one. I am today ordering the Bureau of the Interior to begin implementation of a comprehensive program to extract water from the Greater Inata Aquifer. I certainly realize that this is a short-term solution. If we exhaust the Aquifer, we risk bankrupting our future generations. But we must do something. All of our people are affected by this crisis. So we will explore means of taking life-giving water from the Aquifer so long as drought conditions continue, and so long as we have no other way of preserving the life and culture of the great Rahadi nation.

14. President Vhen responded by thanking the Queen for her remarks but noting his ongoing

concern about the “equitable division of the waters of the Inata Aquifer.” President Vhen reminded the Rahadi government of its obligation to respect the commitment it made on 22 March 1993, “when carrying out any plan to tap the largest source of fresh water on the Nomad Coast for its own exclusive domestic use.” He concluded, “unless and until my Government is assured that any Rahadi extraction of Aquifer waters will not negatively affect our use of the shared resource, we must express our serious concerns about the potential dangers that this unilateral action may provoke.” He called on the Queen to stop plans to tap the waters of the Aquifer immediately and to seek alternative sources.

15. The Bureau of the Interior prepared a plan for a network of 30 pump wells located in

Rahad’s northern territories to be connected by a subterranean pipeline system (“the Savali Pipeline”), which would provide a reliable source of water to Rahad’s farmlands and natural gas industry.

16. In 2009, Atanian farmers in the region south of the Complex reported that wells, springs,

and small streams were drying up, and land that had been rich and arable five years earlier was becoming dry and difficult to farm. Alarmed by the loss of important farmland, the Atanian Ministry of Water and Agriculture commissioned an international panel of climatologists, geologists, and hydrologists to determine whether the changing hydrology of the region was the result of the Savali Pipeline project.

17. The panel released a study in June 2010 that concluded that operation of the Savali

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Pipeline had caused a permanent lowering of the water table in the region. As a result, discharge from the Aquifer could no longer provide a sufficient natural source of water for Atanian agriculture. The study found that 20% of what had been Atanian farmland could no longer be farmed, and that within 10 years an additional 30% would be lost if extraction continued at the same rate.

18. President Vhen addressed the findings in a Parliamentary speech given on 6 July 2010, in

which he said:

Not long ago, our Rahadi neighbors agreed that the waters of the Greater Inata Aquifer are a shared resource. It is with great sadness that we must now observe the plundering of this resource to benefit economic interests in Rahad, with scant regard for the harm they are doing to the people of Atania. The destruction of our farmland has already cost Atania more than US$300 million annually in the loss of food and other agricultural products. If this terrible trend continues, these losses will double in 10 years. We must implore the government of Rahad to stay true to its commitment to ensure the equitable use of shared water in the Nomad Coast, and to end the disastrous pipeline experiment.

19. Atania and Rahad are both members of the United Nations, and are parties to the Statute

of the International Court of Justice and the Vienna Convention on the Law of Treaties.

ATANIA respectfully requests that this Court adjudge that extraction of water from the Aquifer violates international obligations undertaken by Rahad and constitutes an inequitable use of a shared resource. RAHAD respectfully requests that this Court adjudge that Rahad’s extraction of water from the Aquifer does not violate Rahad’s international legal obligations governing the proper use of shared resources.

PLEADINGS

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Statute of the International Court of Justice

Article 38(1) The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

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

b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. 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.

Article 59 The decision of the Court has no binding force except between the parties and in respect of that particular case.

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The Sources of International Law

adapted from Brownlie’s Principles of Public International Law, 8th ed., by James Crawford The formally recognized sources of international law are reflected in Article 38 of the Statute of the International Court of Justice, and are as follows2:

I. INTERNATIONAL CUSTOM Article 38 refers to ‘international custom, as evidence of a general practice accepted as law.’ The sources that can evidence custom are manifold and include: diplomatic correspondence, policy statements, press releases, the actions of governments, international and national judicial decisions, recitals in international instruments, an extensive pattern of treaties in the same terms, the practice of international organs, and resolutions relating to legal questions in UN organs, notably the General Assembly. The value of these sources varies and will depend on the circumstances. Complete uniformity of practice is not required, but substantial uniformity is. Provided the consistency and generality of a practice are established, the formation of a customary rule requires no particular duration. A long practice is not necessary, an immemorial one even less so. In North Sea Continental Shelf the Court said:

Although the passage of only a short period of time is not necessarily a bar to the formation of a new rule of customary international law, an indispensable requirement would be that within the period in question, State practice should have been both extensive and uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.

The Statute of the International Court specifically refers to “a general practice accepted as law.” [The requirement that the practice be “accepted as law” implies that it need not only be widespread, but also be supported by the belief that it reflects a legal obligation to constitute customary law.] II. TREATIES

Treaties are the most important source of obligation in international law. So-called ‘law-making’ treaties create general norms to govern the conduct of the parties. The Declaration of Paris of 1856 (on neutrality in maritime warfare), the Hague Conventions of 1899 and of 1907 (on the law of war and neutrality), the Geneva Protocol of 1925 (on prohibited weapons), the General Treaty for the Renunciation of War of 1928, the Genocide Convention of 1948, and the four Geneva Conventions of 1949 (on the protection of civilians and other groups in time of war) are examples of this type.

2In addition to these four formally recognized sources, the ICJ in the Nuclear Tests and Armed Activities cases has recognized that unilaterally made declarations may have the effect of creating legal obligations in certain circumstances.

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When norms of treaty origin crystallize into new principles or rules of customary law, the customary norms retain a separate identity even where the two norms may be identical in content. III. GENERAL PRINCIPLES OF LAW

Article 38(l)(c) of the Statute of the International Court refers to ‘the general principles of law recognized by civilized nations.’ The Court has used Article 38(l)(c) sparingly. However, the Court has on occasion referred to general notions of responsibility. [For example,] the Court has relied on occasion on the principle of estoppel or acquiescence. At other times references to abuse of rights and to good faith may occur. But the most frequent and successful use of domestic law analogies has been in the field of evidence, procedure, and jurisdiction. IV. SUBSIDIARY SOURCES OF LAW The Statute of the International Court includes, among the “subsidiary means for the determination of rules of law” the “teachings of the most highly qualified publicists.” The opinions of publicists enjoy wide use, [and] there are many references to writers in pleadings before the Court. Judicial decisions are not strictly a formal source of law, but in many instances they are regarded as evidence of the law. It is true that the Court does not observe a doctrine of precedent, except perhaps on matters of procedure. But it strives to maintain judicial consistency.

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The Gabcikovo-Nagymaros Project Case International Court of Justice, 1997

The Court will now consider the question of whether there was, in 1989, a state of necessity which would have permitted Hungary, without incurring international responsibility, to suspend and abandon works that it was committed to perform in accordance with the 1977 Treaty and related instruments. The Court observes that such ground for precluding wrongfulness can only be accepted on an exceptional basis. The Court has no difficulty in acknowledging that the concerns expressed by Hungary for its natural environment in the region affected by the Gabcikovo-Nagymaros Project related to an "essential interest" of that State. Hungary on several occasions expressed, in 1989, its "uncertainties" as to the ecological impact of putting in place the Gabcikovo-Nagymaros barrage system, which is why it asked insistently for new scientific studies to be carried out. The Court considers, however, that, serious though these uncertainties might have been they could not, alone, establish the objective existence of a "peril" in the sense of a component element of a state of necessity. The word "peril" certainly evokes the idea of "risk"; that is precisely what distinguishes "peril" from material damage. But a state of necessity could not exist without a "peril" duly established at the relevant point in time: the mere apprehension of a possible "peril" could not suffice in that respect. It could moreover hardly be otherwise when the "peril" constituting the state of necessity has at the same time to be "grave" and "imminent." "Imminence" is synonymous with "immediacy" or "proximity" and goes far beyond the concept of "possibility."

. . . A fundamental change of circumstances must have been unforeseen; the existence of the circumstances at the time of the Treaty’s conclusion must have constituted an essential basis of the consent of the parties to be bound by the Treaty. The negative and conditional wording of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover that the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases.

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The Armed Activities Case International Court of Justice, 2006

The Court will begin by examining Rwanda’s argument that it cannot be legally bound by the statement in question inasmuch as a statement made not by a Foreign Minister or a Head of Government “with automatic authority to bind the State in matters of international relations, but by a Minister of Justice, cannot bind the State to lift a particular reservation.” It is a well-established rule of international law that the Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of the said State, of unilateral acts having the force of international commitments. The Court notes, however, that with increasing frequency in modern international relations other persons representing a State in specific fields may be authorized by that State to bind it by their statements in respect of matters falling within their purview. In this case, the Court notes first that Ms. Mukabagwiza spoke before the United Nations Commission on Human Rights in her capacity as Minister of Justice of Rwanda and that she indicated inter alia that she was making her statement “on behalf of the Rwandan people.” It is the Court’s view that the possibility cannot be ruled out in principle that a Minister of Justice may, under certain circumstances, bind the State he or she represents by his or her statements. The Court recalls that a statement of this kind can create legal obligations only if it is made in clear and specific terms. In this regard the Court observes that in her statement the Minister of Justice of Rwanda indicated that “past reservations not yet withdrawn [would] shortly be withdrawn”, without referring explicitly to the reservation made by Rwanda to Article IX of the Genocide Convention. The statement merely raises in general terms the question of Rwandan reservations. It follows from the foregoing that the statement by the Rwandan Minister of Justice was not made in sufficiently specific terms in relation to the particular question of the withdrawal of reservations. Given the general nature of its wording, the statement cannot therefore be considered as confirmation by Rwanda of a previous decision to withdraw its reservation to Article IX of the Genocide Convention, or as any sort of unilateral commitment on its part having legal effects. It follows from the foregoing that the statement by the Rwandan Minister of Justice was not made in sufficiently specific terms in relation to the particular question of the withdrawal of reservations. Given the general nature of its wording, the statement cannot therefore be considered as confirmation by Rwanda of a previous decision to withdraw its reservation to Article IX of the Genocide Convention.

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The Nuclear Tests Case International Court of Justice, 1974

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. A State may choose to take up a certain position in relation to a particular matter with the intention of being bound—the intention is to be ascertained by interpretation of the act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is called for. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the world at large, including the Applicant, its intention effectively to terminate these tests. The validity of these statements and their legal consequences must be considered within the general framework of the security of international intercourse, and the confidence and trust which are so essential in the relations among States. It is from the actual substance of these statements and from the circumstances attending their making, that the legal implications of the unilateral act must be deduced.

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The Berlin Rules on Water Resources 2004

Article 13 - Determining an Equitable and Reasonable Use

1. Relevant factors to be considered include, but are not limited to: a. Geographic, hydrographic, hydrological, hydrogeological, climatic, ecological,

and other natural features; b. The social and economic needs of the basin States concerned; c. The population dependent on the waters of the international drainage basin in

each basin State; d. The effects of the use or uses of the waters of the international drainage basin in

one basin State upon other basin States; e. Existing and potential uses of the waters of the international drainage basin; f. Conservation, protection, development, and economy of use of the water

resources of the international drainage basin and the costs of measures taken to achieve these purposes;

g. The availability of alternatives, of comparable value, to the particular planned or existing use;

h. The sustainability of proposed or existing uses; and i. The minimization of environmental harm.

2. The weight of each factor is to be determined by its importance in comparison with

other relevant factors. In determining what is a reasonable and equitable use, all relevant factors are to be considered together and a conclusion reached on the basis of the whole.

Article 14 - Preferences among Uses

1. In determining an equitable and reasonable use, States shall first allocate waters to satisfy vital human needs.

2. No other use or category of uses shall have an inherent preference over any other use

or category of uses. Commentary to Article 14 Legal institutions have long recognized a preference in municipal law for “domestic uses” of water. The concept “vital human needs” does not extend to water needed to support general economic activity even though some have argued as much. Article 16 - Avoidance of Transboundary Harm Basin States, in managing the waters of an international drainage basin, shall refrain from and prevent acts or omissions within their territory that cause significant harm to another basin State having due regard for the right of each basin State to make equitable and reasonable use of the waters. Commentary to Article 16 This Article sets forth the basic rule of customary international law that States are to avoid and prevent significant harm to other States arising from activities of the State or subject to the State’s jurisdiction directed at the waters of an international drainage basin.

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Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, with Commentaries Thereto

2006 Principle 1 Declarations publicly made and manifesting the will to be bound may have the effect of creating legal obligations. When the conditions for this are met, the binding character of such declarations is based on good faith; States concerned may then take them into consideration and rely on them; such States are entitled to require that such obligations be respected. Principle 4 A unilateral declaration binds the State internationally only if it is made by an authority vested with the power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations. Other persons representing the State in specified areas may be authorized to bind it, through their declarations, in areas falling within their competence. Principle 5 Unilateral declarations may be formulated orally or in writing. Principle 7 A unilateral declaration entails obligations for the formulating State only if it is stated in clear and specific terms. In the case of doubt as to the scope of the obligations resulting from such a declaration, such obligations must be interpreted in a restrictive manner. In interpreting the content of such obligations, weight shall be given first and foremost to the text of the declaration, together with the context and the circumstances in which it was formulated. Principle 10 A unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily. In assessing whether a revocation would be arbitrary, consideration should be given to:

a. Any specific terms of the declaration relating to revocation; b. The extent to which those to whom the obligations are owed have relied on such

obligations; c. The extent to which there has been a fundamental change in the circumstances.

Commentary to Principle 10 There can be no doubt that unilateral acts may be withdrawn or amended in certain specific circumstances. The Commission has drawn up an open-ended list of criteria to be taken into consideration when determining whether or not a withdrawal is arbitrary. . . . A unilateral declaration may also be rescinded following a fundamental change of circumstances within the meaning and within the strict limits of the customary rule enshrined in article 62 of the 1969 Vienna Convention on the Law of Treaties.

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International Law Commission, Articles on the Law of Transboundary Aquifers 2008

Article 3 – Sovereignty of aquifer States Each aquifer State has sovereignty over the portion of a transboundary aquifer or aquifer system located within its territory. It shall exercise its sovereignty in accordance with international law and the present draft articles. Commentary to Article 3: Many treaties and other legal instruments refer to sovereignty of States over natural resources. In essence, each aquifer State has sovereignty over the transboundary aquifer or aquifer system to the extent located within its territory. Article 4 – Equitable and reasonable utilization Aquifer States shall utilize transboundary aquifers or aquifer systems according to the principle of equitable and reasonable utilization, as follows:

(a) they shall utilize transboundary aquifers or aquifer systems in a manner that is consistent with the equitable and reasonable accrual of benefits therefrom to the aquifer States concerned;

(b) they shall aim at maximizing the long-term benefits derived from the use of water contained therein;

(c) they shall not utilize a recharging transboundary aquifer or aquifer system at a level that would prevent continuance of its effective functioning.

Article 5 – Factors relevant to equitable and reasonable utilization

1. Utilization of a transboundary aquifer or aquifer system in an equitable and reasonable manner within the meaning of draft article 4 requires taking into account all relevant factors, including:

(a) the population dependent on the aquifer or aquifer system in each aquifer State; (b) the social, economic and other needs, present and future, of the aquifer States

concerned; (c) the natural characteristics of the aquifer or aquifer system; (d) the contribution to the formation and recharge of the aquifer or aquifer system; (e) the existing and potential utilization of the aquifer or aquifer system; (f) the actual and potential effects of the utilization of the aquifer or aquifer system in

one aquifer State on other aquifer States concerned; (g) the availability of alternatives to a particular existing and planned utilization of the

aquifer or aquifer system; (h) the development, protection and conservation of the aquifer or aquifer system and the

costs of measures to be taken to that effect; (i) the role of the aquifer or aquifer system in the related ecosystem.

2. The weight to be given to each factor is to be determined by its importance with regard to a specific transboundary aquifer or aquifer system in comparison with that of other relevant factors. In determining what is equitable and reasonable utilization, all relevant factors are to be considered together and a conclusion reached on the basis of all the factors. However, in weighing different kinds of utilization of a transboundary aquifer or aquifer system, special regard shall be given to vital human needs.

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Vienna Convention on the Law of Treaties 1969

Article 31 General Rule of Interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

4. A special meaning shall be given to a term if it is established that the parties so

intended. Article 62 Fundamental Change of Circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of

the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

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Articles on the Responsibility of States for Internationally Wrongful Acts 2001

Article 25 Necessity

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave and

imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.

Commentary to Article 25: The term “necessity” (état de nécessité) is used to denote those exceptional cases where the only way a State can safeguard an essential interest threatened by a grave and imminent peril is, for the time being, not to perform some other international obligation of lesser weight or urgency. Under conditions narrowly defined in article 25, such a plea is recognized as a circumstance precluding wrongfulness. Necessity has been invoked to preclude the wrongfulness of acts contrary to a broad range of obligations, whether customary or conventional in origin. It has been invoked to protect a wide variety of interests, including safeguarding the environment, preserving the very existence of the State and its people in time of public emergency, or ensuring the safety of a civilian population.

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Ninth Report of Special Rapporteur Mr. Cedano on the Unilateral Acts of States, DOCUMENT A/CN.4/569 and Add.1

2006

It has been maintained that articles 61 (Supervening impossibility of performance) and 62 (Fundamental change of circumstances) of the 1969 Vienna Convention could be applied mutatis mutandis [with respective differences having been considered] to certain unilateral acts (particularly those which give rise to obligations), given that the conditions for modification and termination are very close to those provided for in treaty law with respect to the suspension or termination of obligations arising from an international treaty. The invocation of a fundamental change of circumstances as a ground for terminating an international treaty is one of the most extensively studied issues in the legal literature. The importance of this ground for termination may be the primary and ultimate reason for the degree of detail and the negative wording of article 62 of the 1969 Vienna Convention, which limit the possibility of invoking that circumstance. This reflects the restrictive position taken in the literature on the possible invocation of this ground, as a logical consequence of the need to prevent arbitrary actions which otherwise might be taken. Regarding the fundamental character that the changed circumstance must have, it has been logically affirmed in the literature that:

[t]he changed circumstance must be fundamental; it must affect, as has been said, the fundamentum or very basis of the treaty, and must be extraordinary in that it transcends or exceeds the ordinary changes that are rightly and typically anticipated in the drawing up of private contracts or international treaties.

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International Law for a Water-Scarce World Edith Weiss, 2013

In 2003, the ILC [International Law Commission] began work on the topic “Shared Natural Resources,” with work initially focusing on confined transboundary ground waters. In exploring the topic, the ILC intended to create international legal norms for the treatment of transboundary ground waters, whether connected to surface waters or not. In 2008, the ILC adopted a preamble and 19 draft articles of substantive and procedural norms for the utilization, protection, and preservation of transboundary aquifers. In December 2011 the United Nations General Assembly adopted a Resolution encouraging States to consider the Draft Articles in negotiating arrangements for management of transboundary aquifers. In 2004, while the ILC was in the process of drafting the articles on transboundary aquifers, the International Law Association adopted the Berlin Rules on Water Resources, which includes a chapter on ground water. Except for Article 42, which deals specifically with transboundary aquifers, the rules of this chapter apply to all aquifers, including aquifers that are not hydrologically connected to surface waters and aquifers that are not connected to international drainage basins. In this respect, these rules go beyond the ILC draft articles. Though intended to codify international norms, the Berlin Rules do not themselves impose binding international obligations.

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Oxford English Dictionary 2017

Reasonable adj.

1. Having sound judgement; fair and sensible. 2. As much as is appropriate or fair; moderate.

Equitable adj.

1. Fair and impartial. 2. Valid in equity as distinct from law.