‘624A’

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

JESSUP INTERNATIONAL MOOT COMPETITION, 2019

THE CASE CONCERNING THE DIFFERENCES BETWEEN THE PARTIES

ON THE KAYLEFF YAK

THE STATE OF AUROK

(APPLICANT)

v.

THE REPUBLIC OF RAKKAB

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

1
TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................... 3

STATEMENT OF JURISDICTION .......................................................................................... 5

QUESTIONS PRESENTED ...................................................................................................... 6

STATEMENT OF FACTS........................................................................................................... 7

SUMMARY OF PLEADINGS................................................................................................... 10

PLEADINGS .......................................................................................................................,....... 12

PRAYER FOR RELIEF……………………...………………………..…………………………….. 27

2
 INDEX OF AUTHORITIES

INTERNATIONAL COURT AND ARBITRAL DECISIONS

i. United States v. Canada) ( 1938 and 1941 ) 3 R.I.A.A. 1905…………………………

13
ii. Corfu Channel Case, (UK v. Albania) Judgment of April 9th, 1949 ICJ Reports 1949..
13
iii. Whaling in the Antarctic ( Australia v. Japan: New Zealand intervening)…………….
15
iv. HasanandChaush v.
Bulgaria…………………………………………………………… 22

TREATIES AND CONVENTIONS

i. Article 2 Draft Articles on Responsibility of States for Internationally Wrongful Acts,

adopted in
2001………………………………………………………………………… 12
ii. Article 5 Draft Articles on Responsibility of States for Internationally Wrongful Acts,
adopted in 2001…………………………………………………………………………
.13
iii. Article 13 Draft Articles on Responsibility of States for Internationally Wrongful Acts,
adopted in 2001…………………………………………………………………………
.13
iv. Draft articles on Prevention of Transboundary Harm from Hazardous Activities,
2001.14
v. Article 5 of the Convention on International Trade in Endangered Species of
Wild Flora and
Fauna…………………………………………………………………….14
vi. Article 2(2) of Convention on the Conservation of Migratory Species of Wild
Animals.14
vii. Article 3(2) of Convention on the Conservation of Migratory Species of Wild
Animals.14
viii. Article 3(5) of Convention on the Conservation of Migratory Species of Wild
Animals.15
ix. Article 8(k)of the Convention on Biological diversity, 1992……………………………
15
x. Article 9(c)of the Convention on Biological diversity, 1992……………………………
15
xi. section 7(4) of Endangered Species Act
1973…………………………………………...17
xii. section 18(3) Environment Protection and Biodiversity Conservation Act 1999
……...18
xiii. section 20A (2) Environment Protection and Biodiversity Conservation Act 1999……
18
xiv. article 3 of Convention on the conservation of European wildlife andnatural habitats,
Bern, 1979
……………………………………………………………………………….18
xv. Article (15) on The International Covenant on Economic, Social and Cultural rights…
20
xvi. Article (2) Indigenous and Tribal Peoples Convention,
1989…………………………..20

3
 xvii. Article(22) Part A of General Assembly resolution 217 (III). International Bill
of Human
Rights…………………………………………………………………………20
xviii. Article (1) International Covenant on Civil and Political Rights……………………….
21
xix. Article (18) International Covenant on Civil and Political Rights………………………
21
xx. Article (1) UNESCO Principles on International Cultural Co-
operation……………….21
xxi. Article (1) The UN Declaration on the Right to
Development………………………….22
xxii. Principle (7) The Mexico City Declaration on Cultural
Policies....................................22
xxiii. part1 article (2) Vienna Declaration and Programme of Action
……………………….22
xxiv. Section (1) UN Declaration on Elimination of All Forms of
Intolerance……………...22
xxv. Article (12) (1) AMERICAN CONVENTION ON HUMAN
RIGHTS…………………23
xxvi. Malaysian Patents Act 1983 (MPA), Section
12………………………………………...23
xxvii. Indian Patents Act, 1970, Section 3(d)
…………………………………………………..23
xxviii. Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article
27…………...23
xxix. Malaysian Patents Act 1983 (MPA), Section
11…………………………………………24
xxx. Convention on Biological Diversity, Article 8(j)
………………………………………...24
xxxi. Convention on Biological Diversity, Article
15………………………………………….24
xxxii. The NAGOYA PROTOCOL ON ACCESS TO GENETIC RESOURCES
AND THE FAIR AND EQUITABLE SHARING OF BENEFITS ARISING
FROM THEIR UTILIZATION TO THE CONVENTION ON BIOLOGICAL
DIVERSITY, Article 7………………………………………………………………….
25
xxxiii. The NAGOYA PROTOCOL ON ACCESS TO GENETIC RESOURCES AND
THE FAIR AND EQUITABLE SHARING OF BENEFITS ARISING FROM
THEIR UTILIZATION TO THE CONVENTION ON BIOLOGICAL DIVERSITY,
Articles 5 and 12(3)……………………………………………………………………..
25

UNITED NATIONS DOCUMENTS

i. U.N. SUB-COMMISSION ON PREVENTION OF DISCRIMINATION &

PROTECTION OF MINORITIES, STUDY OF THE PROBLEM OF
DISCRIMINATION AGAINST INDIGENOUS POPULATIONS 39, U.N. Doc.
E/CN.4/Sub.2/1986/7/Add.4, U.N. Sales No. [Link].3 (1986) (Jose R. Martinez
Cobo, special rapporteur)…………………………………………………………….
…….. 17
ii. Draft U.N. Declaration on the Rights of Indigenous Peoples, adopted Aug. 26, 1994,
U.N.

4
 Sub-Commission on Prevention of Discrimination & Protection of Minorities, 46th
Sess.,
at 105, U.N. Doc. E/CN.4/Sub.2/1994/56 (1994)…………………………………....17

ARTICLES, JOURNALS AND BOOKS

i. ., Three-Gorges Dam: Risk to Ancient Fish, 302 SCIENCE 1149 (2003); Stefan
Lovgren,
World's Largest River Fish Feared Extinct,NAT'L GEOGRAPHIC NEWS, July 26,
2007..............................................................................................................................15
ii. Jeng WS, Cheng-Low TH. Bear bile resources – past and future. Yu-Lan Chinese
Medicine College Bulletin. 1992;15:27–30…………………………………………..16
iii. Andrea L Gaski and Kurt A Johnson, Prescription for extinction: Endagered species
and
patent oriental medicines in trade, a traffic network report…………………………16
iv. Ten threatened and endangered Species used in traditional medicines by Joseph
Stromberg
and Sarah
Zielinski…………………………………………………………………….16
v. LEAD; Access and Benefit Sharing from the indigenous people Perspective: The
TBGRI-
Kani Model by C.R Bijoy……………………………………………………………..24
vi. A Detailed Study of Patent System for Protection of Inventions by G. Karishna Tulsi
and
B. Subba Rao…………………………………………………………………………25
vii. Patent Act:Biopiracy Of Traditional Indian Products - An Overview By Divya
Bhargava………………………………………………………………………………25

STATEMENT OF JURISDICTION

5
The State of Aurok (“Aurok”) and the Federal Republic of Rakkab (“Rakkab”) have
consented to submit this dispute to the International Court of Justice (“this Court”), in
accordance with Article 36(1) of the Statute of the International Court of Justice (“the
Statute”). Pursuant to Article 40(1) of the Statute, the parties submit the questions before this
Court by notification of their special agreement. Aurok and Rakkab have undertaken to
accept the Court’s decision as final and binding on them and also commit to comply with it in
its entirety and in good faith.

6
QUESTIONS PRESENTED

1. Whether Rakkab is responsible for the internationally wrongful acts described

in other questions, 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. Whether the harvesting of the Yak in Rakkab violates 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. Whether the harvesting of the Yak in Rakkab violates the cultural and religious
rights of the people of Aurok, and Rakkab must prohibit such hunting forthwith.
4. Whether Rakkab should pay Aurok, as parens patriae for the Aurokan people, a
portion of the profits realized from sales of the drug Gallvectra.

7
STATEMENT OF FACTS

HISTORY OF YAK AND STATES:

Gaur Highlands have been the exclusive habitat of the majestic Kayleff Yak for more than
250,000 years. Individual herds of Yak migrated thousands of kilometer [Link]
spring and summer, they remain in Aurok and migrated towards Rakkkab in winter and
autumn season. Yak formed the central part of Pivzao Civilization as this civilization relied
upon the subsistence hunting of Yak for virtually every aspect of their [Link] Yak
hunting was a complex community event. Prof. Kuriz reported that at the conclusion of hunt,
those who participated in hunting were awarded with the traditional dish known as Tirhinga
Nos Lustuk. The consumption of this dish not only symbolized gratitude to Kayleff for
nature’s bounty, but also conferred health benefits and longevity on all who took part in this
tradition.
Aurok is the small and least developed state and comprises 70% of Gaur Highlands. This
state harvests Yak for their traditional practices. While the state of Rakkab is well developed
and comprises 30% of Gaur Highlands.
DORTA:
A major component of Rakkab’s economic success is its investment in Research and
technology began in 1960. The mandate of the government’s Department of Research,
Technology and Application, established in 1965 included “the pursuit and dissemination of
scientific discoveries, including… new medicines and treatments.” Over the first three
decades of its existence, the Department of Research, Technology and Application applied
for and was granted with the numerous [Link] government approvals to market its
invemtions, especially in the health care [Link] 1996, the Dapartment became privatized
and newly privatized company M/S DORTA was incorporated in Rakkab in 1996. The public
trading of its shares began on the New York Exchange a month later. Rakkan holds
approximately 12% of DORTA's stock at present day.
Today DORTA is the world's eighth laegest manufacturer of pharmaceuticals with
subsidiaries in over 50 countries. DORTA possesses legislatively granted and government
enforced monopoly on the sale of prescription medication within Rakkab and government
subsidizes DORTA's research and development activities inside and outside Rakkab.
INVENTION OF THE DRUG, GALLVECTRA:
Since the middle of the 20th century, Rakkab witnessed significant increase in its rate of
childhood and adult obesity,diabetes, several other lifestyle related diseases.
Dr. Issac Bello is a Rakkabi licensed medical doctot and employed by DORTA in its
pharmaceutical development division and also works in DORTA operated private hospital in
8
Rakkab near Aurok's border. During his hospital practice in 1998-2000 , he observed thhat
the rate of diabetes and obesity among Aurokan people. In 2001, he spent a year in Aurok
and observed dietary and cultural practices. e concluded that the reason is the never before
identified enzyme found in Yak's gallbladder and key ingredient in Tirhinga Nos Lustuk. In
an article summarizing his findings published in British peer reviewed medical journal The
Lacent in 2002, he referred to his discovery as “ the lustuk enzyme.” By 2003, Dr. Bello and
DORTA's biologists team isolated the enzyme and used it to produce an experimental
medication and then applied to Rakkab Ministry of Health for the permission to begin clinical
trials on human subjects and testing its efficacy. Testing for two years determined that the
drug was highly effective in the treatment of diabetes and eelated disorders
APPLICATION AND GRANT OF PATENT:
By November 2004, DORTA filed a patent application with the Rakkabi intellectual property
for the medication derived from Lustuk enzyme. This application listed Dr. Bello as an
inventor. According to Rakkabi law, patent applications are published in official jourmal and
Ministry ‘s website and open to public comment for a period of 18 months before making of
final decision. Once issued, the term of a patent is 20 yeara from the date of first filing.
In March 2005, the Aurokan Minister of Intellectual Property, Tom Wynet, wrote to his
Rakkabi counterpart a letter which concluded, “Governments grant patents to encourage
creativity and novelty, to protect original inventors. But in this case, DORTA seeks
protection for a drug it did not actually invent. No one except those who first discovered the
health benefits of the gallbladders should be allowed to profit from the Lustuk Enzyme.”
Patent attorneys for DORTA replied to Minister Wynet’s letter in April 2005 stating, “The
work of Dr. Bello and other scientists at DORTA led directly to the isolation of the Lustuk
Enzyme and its discovery as a medical treatment of insulin-resistant diseases. On 6 October
2005, Rakkabi ministry issued order granting patent. On 11 November 2005 DORTA
proceeded to pursue intellectual property protection for Gallvectra as a human
pharmaceutical in all of countries in which it has subsidiaries. In 2011, DORTA began
marketing Gallvectra.
OBJECTIONS ON GRANT OF PATENT:
The people of Aurok considered it ruin for the Aurokan way of life. Although harvesting of
Yak is allowed by giving licemses to the hunters and these are limited too but Aurokan feels
that this is the danger for the sustainability of Yak. In March 2016, the Aurokan Parliament’s
leader met with DORTA researchers to duscuss the sustainably of Yak population. At the end
of meeting DORTA announced that it was initiating a captive breeding programme of its
own. To date, neither the Aurokan nor DORTA efforts have met with any success. An

9
international organization, Yak life sciene academy 2016’ report showed that there is drastic
declinr in the population of Yak by harvesting in both Ralkab and Aurok.
Aurokans started protest and demanded that DORTA cease the harvest for 2016-17 winter
months, to allow the time for the recovery of herds but Rakkab did not do so rather 30,000
Yak were harvested in that year

INCLUSION OF YAK IN APPENDIX III OF CITES AND APPENDIX I OF CMS:

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. Rakkab
did not communicate a reservation or an objection, and the Yak was duly included in
Appendix III effective 29 September 2017.
At the Twelfth Meeting of the Conference of Parties to the Convention on Migratory
Species (“CMS”) in October 2017, the Yak was included in Appendix I of the CMS on the
recommendation of the CMS Scientific Council. The move was taken over the objection of
the delegate from Rakkab, who stated, “while Rakkab appreciates the interest of YLSA and
of other enthusiasts in this majestic species, current cull rates are sustainable. The Yak is not
in danger. There is no credible reason to believe that the Yak will be extinct in any of our
lifetimes. And let me remind my fellow delegates: harvesting the Yak allows the manufacture
of a medicine vital and necessary for the promotion of the right to health worldwide.
INTERNATIONAL COURT OF JUSTICE:
Upon the urging of the Executive Director of the United Nations Environment Programme in
spring 2018, the parties agreed to submit their disputes for resolution by the International
Court of Justice. They negotiated and submitted to the Registry this Special Agreement.

10
SUMMARY OF PLEADINGS

PLEADING I
Clear involvement of the government can be seen in the acts of the DORTA as not only the
former politicians were the part of board of governors of the aforementioned company but the
government also owned 12 percent of the DORTA. It’s apparent that the state of Rakkab was
responsible for the wrongful acts of DORTA as mentioned in other questions because the
actions of DORTA can clearly be attributed to the Government of Rakkab.
Moreover, the Republic of Rakkab has failed to comply to articles of International Law
Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts
and has also caused transboundary harm under Draft articles on Prevention of Transboundary
Harm from Hazardous Activities.

PLEADING II
Yaks had been added in appendix III and I of CITES and CMS respectively to be called as
endangered specie and Rakkab was under an obligation to end hunting of Yaks under these
convention as well the convention on Biological Diversity which the state of Rakkab has
failed to comply with.

PLEADING III
The harvesting of the Yak in Rakkab violates the cultural and religious rights of the people of
Aurok, and Rakkab must prohibit such hunting forthwith. Being venerated by the Pivzao
civilization in the state of Auruk the Yak is of great importance, and the harvesting of the
Yak is not only detrimental to the cultural and religious beliefs of the people of Auruk, in fact
it is also causing the extinction of the specie on earth which needs to be prevented
immediately.

PLEADING IV

The Pivzao civilization has been practicing their rituals relating to the Yaks from around
1000 BCE, a lot before the two current states were made colonies of Kingdom of Jeremia. It
can be clearly extracted out of the facts that Tirhinga Nos Lustuk was the invention of Pivzao
civilization and the facts also shows that it was even than used for health benefits which
DORTA now after almost a century claims to be its invention. The facts even prove this that
this invention was merely a result of the Article written by the so-called inventor of
11
Gallvectra who himself accepted the fact that it is something which has been taken out of the
traditions and knowledge of the people of Aurok which evidently proves people of Aurok as
the inventors this million dollar ingredient for medicines made by Rakkab and Rakkab is
obligated to pay a portion of profits derived from this invention by the people of Pivzao
civilization.

12
PLEADINGS

I. Rakkab is responsible for the internationally wrongful acts described in other

questions, 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.

DORTA was originally inaugurated as the Government’s flagship department of Research,

Technology and Application in 1965. This division used to get between 3-5 percent of the
total national budget of Rakkab until 1996. In 1996 the government decided to privatise the
department. The newly denationalized department was incorporated on 6 th April 1996.
According to the legislative act which privatised this department and according to the charter
of DORTA the government of Rakkab must always own 9.9 percent of the total shares and
the maximum cap was set to 19.9 percent of total shares. Right now, the government of
Rakkab owns 12 percent of the shares. It is germane to cite that DORTA is now the 8 th largest
pharmaceutical company and has its subsidiaries in almost 50 states.
Moreover the board of governors of DORTA comprises 4 former Rakkabi ministers along
with three former leaders of major political parties of Rakkab.
One thing that is confirmed is that there was clear involvement of the government in the acts
of the DORTA as not only the former politicians were the part of board of governors of the
aforementioned company but the government also owned 12 percent of the DORTA. It’s
apparent that the state of Rakkab was responsible for the wrongful acts of DORTA as
mentioned in para (b-d) because the actions of DORTA can clearly be attributed to the
Government of Rakkab.
It is further noted that according to the Rakkabi law the patent application is first published in
the journal and is open for public criticism for 18 month before the govt makes a decision.
DORTA filed for the patent on November 11, 2014 and was granted this patent before the
minimum period of 18 months on 6th October 2006, the laws were clearly bypassed which
shows that the government was clearly involved.
A. Violation of International Law Commission’s Draft Articles on Responsibility of
States for Internationally Wrongful Acts, adopted in 2001
For the act of the state to be declared internationally wrongful, there must be two elements 1
 The act must be attributable to the State under international law; and
 That act constitutes a breach of an international obligation of the State

1
Article 2 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001
13
The conduct of the entity which is not an organ of the state but which is empowered by the
state to exercise a part of government authority shall be considered an act of the state under
International law.2
Moreover, there is a breach of an international obligation by a State when an act of that State
is not in conformity with what is required of it by that obligation, regardless of its origin or
character.3
There’s a contravention of international obligation as the government of Rakkab not only
violated the convention on the Conservation of Migratory Species of Wild Animals to which
it was a party but also the Convention on International Trade in Endangered Species of Wild
Fauna and Flora by failing to stop DORTA from hunting Yaks.
Thus the actions of DORTA can’t only be attributed to the govt of Rakkab but because of its
failure to prevent DORTA from committing wrongful acts, the govt of Rakkab is directly
responsible.
Same principle can be invoked in this case as has been enunciated in the Trail smelter case
where because of the wrongful conduct of the trail smelter in the dominion of Canada, was
held liable and was ordered by the arbitration tribunal to pay reparation to the United States. 4
The principle involved is that no state will allow its territory to be used in such a way to as to
damage the environment of another state. The same but a more general principle was
enunciated in the Corfu channel case that the State is under the obligation not to allow
knowingly its territory to be used for acts contrary to the rights of the other States. In this
case the government of Albania was ordered to pay the reparations to the United Kingdom.5
The duty to protect other states against harmful acts by individuals from within its
jurisdiction at all times is the responsibility of a state.
The government of Rakkab didn’t do anything considerable to prevent the killing of Yaks and
because of its omission; the population of yaks was clearly reduced. Moreover the
government itself is one of the owners of DORTA, its inability to take due diligence resulted
in the massive reduction of Yaks. As kayleef Yak are the cardinal part of Pivzao Civilisation,
the inaction of Rakkab affected the environment of the state of Aurok. Thus this case invokes
the transboundry harm principle as enunciated in the trail smelted case.
According to the Draft articles on Prevention of Transboundary Harm from Hazardous
Activities, the articles apply to the situations which are not barred by international law but
cause or involve significant transboundary harm through physical consequences. These draft
articles cover all those cases where one country causes transboundary harm to another
2
Article 5 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001
3
Article 13 Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001
4
United States v. Canada) ( 1938 and 1941 ) 3 R.I.A.A. 1905
5
ICJ GL No 1 (Official Case No) [1949] ICJ Rep 4
14
country. The result of the actions of DORTA without any shadow of doubt effected the
environment of Aurok thus these draft articles are applicable in this case.6
II. The harvesting of the Yak in Rakkab violates 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.
Yak hunting is a complex community event and at the conclusion of the hunt, those who
participated in the kill were rewarded with a traditional dish called Tirhinga Nos Lustuk
(“soup of the nasty bits of the Yak”). To the present day, many Aurokans continue to observe
the Pivzao traditions and the Yak remains of prime religious and cultural significance while
state of Rakkab through DORTA has kept on increasing the harvesting ratio of Yaks for
economical gains which has endangered this specie which is regarded with great sanctity by
Aurokans. By continuing this practice the State of Rakkab has violated its international
obligations relating to the protection of endangered species and the environment.
A. Violation of Convention on International Trade in Endangered Species of Wild
Fauna and Flora

It is submitted that 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. And with this request to CITES the govt. of Rakkab amazingly did not communicate
any reservation or any objection and as result of which the Yak was duly included in
appendix III of CITES on 29th of September, 2017.
Article 3, 4 and 5 of the same convention has abandoned the trade of specie included in the
appendix I, II or III respectively by any country.7
B. Violation of Convention on the Conservation of Migratory Species of Wild
Animals

CMS has also included Yak in its appendix I by the recommendation of CMS scientific
council in October, 2017. In Article 2 of CMS it is stated that “The Parties acknowledge the
need to take action to avoid any migratory species becoming endangered”8.
According to article 3(2)9 of the same convention the council which recommended Yak to be
included had sufficient evidence of the specie becoming endangered which is a sine qua non
for any specie to be rendered as endangered and the article 5 of the same convention as

6
Draft articles on Prevention of Transboundary Harm from Hazardous Activities, 2001
7
Article 5 of the Convention on International Trade in Endangered Species of Wild Flora and Fauna
8
Article 2(2) of Convention on the Conservation of Migratory Species of Wild Animals
9
Article 3(2) of Convention on the Conservation of Migratory Species of Wild Animals
15
clearly states that “the Parties that are Range States of a migratory species listed in
Appendix I shall prohibit the taking of animals belonging to such species”.10
In a recent whaling in Antarctic case the ICJ has ordered Japan to cease operation to kill or
treat whales by using the scientific purpose provision and stop giving licenses to people for
Whale hunting.11
C. Convention of Biological Diversity

Both the state of Aurak and Rakkab are also parties to the convention on biological diversity
which binds the states to “Develop or maintain necessary legislation and/or other regulatory
provisions for the protection of threatened species and populations” while the state Rakkab
has evidently failed to fulfill its obligations under this article. 12 Article 9(c) of the same
convention also confine the state parties to Adopt measures for the recovery and
rehabilitation of threatened species and for their reintroduction into their natural habitats
under appropriate conditions13 which is also being clearly breached by the State of Rakkab as
it has consistently failed to impose and imply restrictions on DORTA in this matter.
D. Essential Migration of Yaks

For some animals complete migration without any hurdle is necessary for their existence like
the Chinese paddlefish is now possibly extinct due to the Three Gorges Dam, which blocked
its migration route.14 In the same way the Yaks are born and they live in Aurok while they
migrate to Rakkab for mating season. They’re being hunted in Rakkab during their mating
season which is the main cause of them getting in the list of endangered species as the people
from Pivzao civilization has been hunting them from around 1000 BCE but the gradual
decrease in their number was only seen after they have been getting hunted in their mating
season in recent past years.
E. Endagered species used for scientific research

Bear bile has been used in Traditional Chinese Medicine (TCM) for thousands of years.
Modern investigations showed that it has a wide range of pharmacological actions with little
toxicological side effect and the pure compounds have been used for curing hepatic and
biliary disorders for decades. However, extensive consumption of bear bile made bears
endangered species. In the 1980's, bear farming was established in China to extract bear bile
from living bears with "Free-dripping Fistula Technique". Bear farming is extremely
inhumane and many bears died of illness such as chronic infections and liver cancer. Efforts
10
Article 3(5) of Convention on the Conservation of Migratory Species of Wild Animals
11
Whaling in the Antarctic ( Australia v. Japan: New Zealand intervening)
12
Article 8(k)of the Convention on Biological diversity, 1992
13
Article 9(c)of the Convention on Biological diversity, 1992
14
See Ping Xie et al., Three-Gorges Dam: Risk to Ancient Fish, 302 SCIENCE 1149 (2003); Stefan Lovgren,
World's Largest River Fish Feared Extinct, NAT'L GEOGRAPHIC NEWS, July 26, 2007
16
are now given by non-governmental organizations, mass media and Chinese government to
end bear farming ultimately.15
In the US, medicinal products listed as containing protected species are confiscated upon
import if and when they are detected and if they are not covered by legal documentation. Of
the 1.8 million medicine items in US, approximately 30percent contained or were listed as
containing protected species and were seized by the US government because it was to violate
the endangered species act, Lacey act and other laws.16
Rhino poaching reached epidemic levels in the 20th century, nearly driving all five species
into extinction. But in the 1990s, China removed the animal from its list of ingredients
approved for manufacturing medicines—rhino horn was supposed to relieve fevers and lower
blood pressure, though any such effect was debunked by science—and rhino populations
began to recover.17
F. Indigenous People Protection

It has become a generally accepted principle in international law that indigenous peoples
should be consulted as to any decision affecting them. This norm is reflected in articles 6 and
7 of I.L.O. Convention No. 169, and has been articulated by United Nations treaty
supervision bodies in country reviews. The existence of a duty to consult indigenous peoples
is also generally accepted by states in their contributions to discussions surrounding the draft
declarations on indigenous peoples’ rights, at both the United Nations and in the Inter-
American system. This widespread acceptance of the norm of consultation demonstrates that
it has become part of customary international law.
These aspirations are reflected in article 26 of the United Nations Draft Declaration on the
Rights of Indigenous Peoples, produced by the U.N. Working Group on Indigenous
Populations, through a process in which indigenous representatives had a great deal of
participation. Article 26 reads:
“Indigenous peoples have the right to own, develop, control and use the lands and
territories, including the total environment of the lands, air, waters, coastal seas, sea-ice,
flora and fauna and other resources which they traditionally owned or otherwise occupied or
used. This includes the full recognition of their laws, traditions and customs, land-tenure
systems and institutions for the development and management of resources, and the right to

15
Jeng WS, Cheng-Low TH. Bear bile resources – past and future. Yu-Lan Chinese Medicine College
Bulletin. 1992;15:27–30
16
Andrea L Gaski and Kurt A Johnson, Prescription for extinction: Endagered species and patent oriental
medicines in trade, a traffic network report
17
Ten threatened and endangered Species used in traditional medicines by Joseph Stromberg and Sarah
Zielinski
17
effective measures by States to prevent any interference with, alienation of or encroachment
upon these rights.”18
Although indigenous representatives were not as heavily involved in its drafting, a proposed
declaration on the rights of indigenous peoples produced by the InterAmerican Commission
on Human Rights for approval by the Organization of American States contains a similar
provision: “Indigenous peoples have the right to the legal recognition of their varied and
specific forms and modalities of their . . . control, [ownership, use] and enjoyment of
territories and property. Indigenous peoples [have the right] to [the] recognition of their
property and ownership rights with respect to lands, territories and resources they have
historically [occupied, as well as] to the use of those to which they have historically had
access for their traditional activities and livelihood.”19
These broad assertions of the nature and extent of indigenous peoples’ rights over land and
resources are not merely aspirational, but can already be seen as part of international law. The
importance of lands and resources to the survival of indigenous cultures and, by implication,
to indigenous self-determination. That understanding is a widely accepted tenet of
contemporary international concern over indigenous peoples. 20 The same is the case with
Yaks which are indigenous to the people of Pivzao civilization and their beliefs and certain
rituals and customs depends on this specie and acc. to the well established customary norms
they should’ve been consulted before treating them for any purpose.
G. Protection of endangered species

The Endangered Species Act requires that federal agencies "insure that any action authorized,
funded, or carried out by such agency[ies] ... is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or
adverse modification of [critical] habitat of such species.21
According to Environment Protection and Biodiversity Conservation Act 1999 a person must
not take an action that:

18
Draft U.N. Declaration on the Rights of Indigenous Peoples, adopted Aug. 26, 1994, U.N. Sub-Commission
on Prevention of Discrimination & Protection of Minorities, 46th Sess., at 105, U.N. Doc.
E/CN.4/Sub.2/1994/56 (1994
19
Proposed American Declaration on the Rights of Indigenous Peoples, approved Feb. 26, 1997, Inter-Am.
C.H.R., OEA/Ser/L/V/.II.95, doc. 6 at 9 (1997).
20
See U.N. SUB-COMMISSION ON PREVENTION OF DISCRIMINATION & PROTECTION OF
MINORITIES, STUDY OF THE PROBLEM OF DISCRIMINATION AGAINST INDIGENOUS
POPULATIONS 39, U.N. Doc. E/CN.4/Sub.2/1986/7/Add.4, U.N. Sales No. [Link].3 (1986) (Jose R.
Martinez Cobo, special rapporteur) ("It must be understood that, for indigenous populations, land does not
represent simply a possession or means of production. . . . It is also essential to understand the special and
profoundly spiritual relationship of indigenous peoples with Mother Earth as basic to their existence and to all
their beliefs, customs, traditions and culture.")
21
16 U.S.C. § 1536(a)(2) (1988). section 7(4) of Endangered Species Act 1973

18
(a) has or will have a significant impact on a listed threatened species included in the
endangered category; or
(b) is likely to have a significant impact on a listed threatened species included in the
endangered category.
A person must not take an action that:
(a) has or will have a significant impact on a listed threatened species included in the
endangered category; or
(b) is likely to have a significant impact on a listed threatened species included in the
endangered category.22
A person commits an offence if:
(a) the person takes an action; and
(b) the action is likely to have a significant impact on a species; and
(c) the species is a listed migratory species.23
(179 categories of threatened species)
And the Convention on the conservation of European wildlife andnatural habitats,Bern, 1979
(The Bern Convention) also binds Each Contracting Party to take steps to promote national
policies for the conservation of wild flora, wild fauna and natural habitats, with particular
attention to endangered and vulnerable species, especially endemic ones, and endangered
habitats, in accordance with the provisions of this Convention.24
H. Moral obligations:
In 2017, four rivers have been given the status of legal persons: The Whanganui River in
New Zealand, the Ganges and Yamuna Rivers in India, and most recently, the Rio Atrato,
in Colombia. If rivers can be granted protection, why not those animals which are
religiously sacred and are culturally revered and important.
Animals are a living things, similar to humans. They deserve to be treated as a part of the
family, since there is a fact that animals share a large percent of homologous genes with
humans - typical example are chimpanzees who are 96% to 98% similar to humans.
As matter of fact, each organism on Earth has a unique place in food chain that actually helps
contribute to the ecosystem in its own special way.
Why Animal Protection?

o Because animals have the same right as humans to live free from pain

22
section 18(3) Environment Protection and Biodiversity Conservation Act 1999

23
section 20A (2) Environment Protection and Biodiversity Conservation Act 1999
24
article 3 of Convention on the conservation of European wildlife andnatural habitats,Bern, 1979

19
 o Because millions of people depend on animals
o Because we all have the power to improve animal welfare
o Because a sustainable and worthwhile future for the planet can only be
achieved if both people and animals are part of it
o Because we can also study how animals survive in different conditions and
climates and learn from them
o Because with the protection of animals we actually protect ourselves and
protect the environment
Because we owe it to future generations (we want our children and grandchildren
respectively to be able to see and enjoy what we have seen)

III. The harvesting of the Yak in Rakkab violates the cultural and religious rights of
the people of Aurok, and Rakkab must prohibit such hunting forthwith.
The harvesting of the Yak in Rakkab violates the cultural and religious rights of the people of
Aurok, and Rakkab must prohibit such hunting forthwith.

Being venerated by the Pivzao civilization in the state of Auruk the Yak is of great
importance, and the harvesting of the Yak is not only detrimental to the cultural and religious
beliefs of the people of Auruk, in fact it is also causing the extinction of the specie on earth
which needs to be prevented immediately.

The following international laws are being violated by Rakkab by hunting down the Kayleff
Yak;

A. International Covenant on Economic, Social and Cultural Rights:

The International Covenant on Economic, Social and Cultural Rights in its article
15(1)(a) recognizes the right of everyone to take part in cultural life and also states in
it’s article 15(2) that the state parties to the Covenant shall work for the conservation
and development of culture.
In the present case, however Rakkab is doing the opposite of the law by damaging the
culture and also hurting the religious sentiments of the people of Auruk.
Article (15):
1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

20
2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for the conservation, the development
and the diffusion of science and culture. 25

B. Indigenous and Tribal Peoples Convention, 1989:

According to Article 2(1)(2) of the Indigenous and Tribal Peoples Convention, 1989, the
governments of the state parties are under obligation to protect the rights and integrity of the
people and to respect the cultural identity of the people rather than indulging in practices
which hurts the culture of the people as done by the Republic of Rakkab.

Article (2):

1) Governments shall have the responsibility for developing, with the participation of the
peoples concerned, coordinated and systematic action to protect the rights of these peoples
and to guarantee respect for their integrity.

2) Such action shall include measures for:

(b) Promoting the full realization of the social, economic and cultural rights of these peoples
with respect for their social and cultural identity, their customs and traditions and their
institutions.26

C. A Universal Declaration of Human Rights Resolution adopted by the General

Assembly 217 (III). International Bill of Human Rights

According to article (22) of International Bill of Human Rights, everyone as a member of

society, has the right to social security and is entitled to realization, through national effort
and international co-operation and in accordance with the organization and resources of each
State, of the economic, social and cultural rights indispensable for his dignity and the free
development of his personality.27
In the present case, however the Republic of Rakkab is not cooperating, in fact is inventing
new methods and technologies to effectively track and hunt down the Yak which proves it
beyond any doubt that it is adamant to carry out the harvest even if there is apprehension that
the specie is going extinct. Moreover, as the Yak are reducing in numbers on yearly basis, the
young residents of Auruk can not participate in a successful Yak hunt and as a result of which

25
Article (15) on The International Covenant on Economic, Social and Cultural rights.
26
Article (2) Indigenous and Tribal Peoples Convention, 1989.
27
Article(22) Part A of General Assembly resolution 217 (III). International Bill of Human Rights
21
they are barred from passing into adulthood, discouraged from starting a family, owing a
home or participating in village governance.

D. International Covenant on Civil and Political Rights

Article 1 (Customs)

(1) All peoples have the right of self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development. 28

Article 18 (Religion)

(2) 1. Everyone shall have the right to freedom of thought, conscience and religion. This
right shall include freedom to have or to adopt a religion or belief of his choice, and
freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching. 29
E. UNESCO Principles on International Cultural Co-operation:

The UNESCO Principles again lays down the common rule of protection, respect and
preservation of cultural values and declares it as the heritage of all mankind in its article
(1), which states that:
1. Each culture has a dignity and value which must be respected and preserved.
2. Every people has the right and the duty to develop its culture.
3. In their rich variety and diversity, and in the reciprocal influences they exert on one
another, all cultures form part of the common heritage belonging to all mankind.30

F. The UN Declaration on the Right to Development

according to article (1) of the UN Declaration on the Right to Development;

The right to development is an inalienable human right by virtue of which every human
person and all peoples are entitled to participate in, contribute to, and enjoy economic, social,
cultural and political development, in which all human rights and fundamental freedoms can
be fully realized.31

28
Article (1) International Covenant on Civil and Political Rights

29
Article (18) International Covenant on Civil and Political Rights
30
Article (1) UNESCO Principles on International Cultural Co-operation
31
Article (1) The UN Declaration on the Right to Development
22
The Republic of Rakkab also violates this UN declaration by harvesting the Yak on such a
large scale that is damaging the hundreds of years old culture of the Aurukans which needs to
be stopped forthwith.

G. The Mexico City Declaration on Cultural Policies

The Mexico City Declaration on Cultural Policies also in its principle (7) lays down that the
protection of cultural identity must be ensured by the international community;
The international community considers it its duty to ensure that the cultural identity of each
people is preserved and protected.32
H. Vienna Declaration and Programme of Action:
This Declarations also recognizes and grants the very right of cultural development
and discourages those who violates violates this right of others for their own ends
indifferent ways. It says in it’s part 1 section 2;
2. All peoples have the right of self-determination. By virtue of that right they freely
determine their political status, and freely pursue their economic, social and cultural
development. 33
I. UN Declaration on the Elimination of All Forms of Intolerance:
In it’s section (1) Reaffirms that freedom of thought, conscience, religion and belief is a
human right derived from the inherent dignity of the human person and guaranteed to all
without discrimination.
As the Yak forms a central part of the Pivzao culture and religion, and their number is
decreasing on a very large and unsustainable scale, which is a violation of the cultural rights
of the Aurukans as they can not take part in successful hunt which is a part of their religion.34
In Hasan and Chaush v. Bulgaria, which dealt with interference in the organization and
leadership of the Muslim community. The Court affirmed that participation in the life of a
community is a manifestation of one’s religion.35
J. AMERICAN CONVENTION ON HUMAN RIGHTS
Article (12) (1) of the American Convention on Human Rights states that; Everyone has the
right to freedom of conscience and of religion. This right includes freedom to maintain or to
change one's religion or beliefs, and freedom to profess or disseminate one's religion or
beliefs, either individually or together with others, in public or in private.36

32
Principle (7) The Mexico City Declaration on Cultural Policies
33
part1 article (2) Vienna Declaration and Programme of Action
34
Section (1) UN Declaration on Elimination of All Forms of Intolerance
35
Hasan and Chaush v. Bulgaria
36
Article (12) (1) AMERICAN CONVENTION ON HUMAN RIGHTS
23
IV. Rakkab must 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.
The Pivzao civilization has been practicing their rituals relating to the Yaks from around
1000 BCE, a lot before the two current states were made colonies of Kingdom of Jeremia. It
can be clearly extracted out of the facts that Tirhinga Nos Lustuk was the invention of Pivzao
civilization and the facts also shows that it was even than used for health benefits which
DORTA now after almost a century claims to be its invention. The facts even prove this that
this invention was merely a result of the Article written by the so-called inventor of
Gallvectra who himself accepted the fact that it is something which has been taken out of the
traditions and knowledge of the people of Aurok which evidently proves people of Aurok as
the inventors this million dollar ingredient for medicines made by Rakkab.
A. Invention
According to the Section 11 of Malaysian Patent Act (MPA) an invention means an idea of
an inventor which permits in practice the solution to a specific problem in the field of
technology37 while according to section 3(d) of the Indian Patents act excludes those
inventions which are a new form, property or use of a known substance, unless they differ
significantly in efficacy.38 A patent cannot be valid unless it is new in all its elements as well
as in combination. In the present case the so-called invention claimed by Dr. Bello on behalf
of DORTA is already been accepted by Dr. Bello himself in his article that it is an idea
coming from the practices of Aurokans as well as it is a same new form with a different name
of what people related to Pivzao civilization has been practicing as their custom.
B. Violation of Trade-Related Aspects of Intellectual Property Rights (TRIPS)

Rakkab cannot register patent for Gallvectra as their invention because Article 27(1) of the
Trade-Related Aspects of Intellectual Property Rights (TRIPS)39 mandates patent protection
for all new products and processes generated using any field of technology. Pursuant to
Article 27 TRIPS, an invention is patentable upon fulfillment of three conditions, namely if it
is new, involves an initiative step and is industrially applicable and the three aforementioned
conditions are currently applied to any invention under section 11 of the Malaysian Patents
Act 1983 (MPA).40Neither this Gallvectra is a new incention Gallvectra is derived from the
Lustuk Enzyme which the Aurokans already use as Tirhinga Nos Lustuk in their soup nor it is
an initiative step because it initiated in the customs and traditions of the people of Pivzao
37
Malaysian Patents Act 1983 (MPA), Section 12
38
Indian Patents Act, 1970, Section 3(d)
39
Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 27
40
Malaysian Patents Act 1983 (MPA), Section 11
24
Civilization. Section 3(d) of the Patents act excludes those inventions which are a new form,
property or use of a known substance, unless they differ significantly in efficacy. A patent
cannot be valid unless it is new in all its elements as well as in combination.
C. Violation of Convention on Biological Diversity (CBD)

Article 8(j) of the CBD is specifically concerned with the traditional knowledge and
recognizes indigenous peoples’ status as both providers of knowledge and as conservers of
biodiversity. Due to indigenous peoples’ contributions in both the knowledge and
conservation of biodiversity, Article 8(j) states that their contributions must be “respected”
and consent must be sought before such knowledge can be disseminated or used, as well as
‘encouraging’ the equitable sharing of the benefits.41 The provision calls upon states to
include such communities in negotiation for benefit-sharing and prior, informed consent
(PIC) mechanism. Article 8(j) seeks to protect traditional knowledge, by establishing
obligations for the recognition of traditional knowledge and requirements concerning PIC, as
well as attempting to ensure equitable ABS. On the other hand Article 15(7) of the same
convention also obliges each party to take legislative, administrative or policy measure for
sharing of a fair and equitable way the results of research and development and the benefits
arising from the commercial and other utilization of genetic resources with the Contracting
Party providing such resources.42 The TBGRI-Kani model is one of the of the cases in which
Article 8(j) and 15 of this convention were completely applied and where the Kani on just
providing the knowledge and with the mutual consent of using their knowledge to make a
medicine were given the shares among the benefits derived from that invention.43
While in the present case the government of Rakkab has failed to comply with this
convention and neither did approached the government of Aurok to ask for prior consent
neither did they agreed to give them the benefits which they enjoyed of the invention by
people of Pivzao Civilization.

D. Violation of The Nagoya Protocol on Access to Genetic Resources and the Fair
and Equitable Sharing of Benefits arising from their utilization to the
Convention on Biological Diversity
The govt. of Rakkab has also failed to comply with Article 7 of The Nagoya Protocol on
Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from
their utilization to the Convention on Biological Diversity which puts certain obligation on
the party to take measures, as appropriate, with the aim of ensuring that traditional knowledge
41
Convention on Biological Diversity, Article 8(j)
42
Convention on Biological Diversity, Article 15
43
LEAD; Access and Benefit Sharing from the indigenous people Perspective: The TBGRI-Kani Model by C.R
Bijoy
25
associated with genetic resources that is held by indigenous and local communities is
accessed with the prior and informed consent or approval and involvement of these
indigenous and local communities, and that mutually agreed terms have been established 44
and the Articles 5, 7 and 12 which puts them under obligation to give Indigenous people
access to the fair and equitable sharing of benefits arising out of the utilization of such
knowledge.45
An example such patents which were granted without the prior consent of the original
inventors can be taken out of India where the Indian government took an initiative to develop
a traditional knowledge digital library and revoked the patent on wound healing properties of
turmeric at the USPTO46 and the patent granted by the European Patent Office (EPO) on the
antifungal properties of neem.47

44
The NAGOYA PROTOCOL ON ACCESS TO GENETIC RESOURCES AND THE FAIR AND
EQUITABLE SHARING OF BENEFITS ARISING FROM THEIR UTILIZATION TO THE CONVENTION
ON BIOLOGICAL DIVERSITY, Article 7
45
The NAGOYA PROTOCOL ON ACCESS TO GENETIC RESOURCES AND THE FAIR AND
EQUITABLE SHARING OF BENEFITS ARISING FROM THEIR UTILIZATION TO THE CONVENTION
ON BIOLOGICAL DIVERSITY, Articles 5 and 12(3)
46
A Detailed Study of Patent System for Protection of Inventions by G. Karishna Tulsi and B. Subba Rao
47
Patent Act:Biopiracy Of Traditional Indian Products - An Overview By Divya Bhargava

26
PRAYER FOR RELIEF

Aurok respectfully requests that the Court adjudge and declare that:

1. Rakkab is responsible for the internationally wrongful acts described in other

questions, 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 violates 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 violates the cultural and religious rights of the
people of Aurok, and Rakkab must prohibit such hunting forthwith.
4. Rakkab must 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.

27
28