18TH S.P.

SATHE INTERNATIONAL MOOT COURT COMPETION, 2024

TEAM CODE: SP4

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE SHILAHU MANENE

KINGDOM OF DOLOSTAN

APPLICANT

V.

REPUBLIC OF BALTALAND

RESPONDENT

Jointly Notified and Submitted in the Registry of the Court under Article 40(1) of the
Statute of ICJ

MEMORIAL ON THE BEHALF OF THE APPLICANT

----KINGDOM OF DOLOSTAN----

18TH S.P. SATHE INTERNATIONAL MOOT COURT COMPETITION, 2024

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TABLE OF CONTENTS

Contents
LIST OF ABBREVIATIONS ....................................................................................................ii
INDEX OF AUTHORITIES......................................................................................................ii
STATEMENT OF JURISDICTION.......................................................................................... v
STATEMENT OF FACTS ....................................................................................................... vi
ISSUES RAISED ...................................................................................................................... ix
SUMMARY OF ARGUMENTS ............................................................................................... x
ARGUMENTS ADVANCED ................................................................................................... 1
ARGUMENT 1 .......................................................................................................................... 1
Whether or not, Baltaland‘s actions denying access of the Zolo tribe to their cultural heritage
violates international law. .......................................................................................................... 1
A.) Baltalands human rights obligations give rise to the duty to comply with UNCRIT. .................. 1
B) Baltaland is bound to enforce the UNCRIT in good faith as a signatory party. ............................ 3
ARGUMENT 2 .......................................................................................................................... 6
2) Whether Baltaland's expropriation of the Kanawha region is inconsistent with international
law. ............................................................................................................................................. 6
A) The termination of the 1925 lease by Baltaland constitutes a breach of the treaty ........................ 6
obligations and agreements between Dolostan and Baltaland. ........................................................... 6
B.) Baltalands expropriation is in violation of the International Minimum Standards ....................... 7
ARGUMENT 3 .......................................................................................................................... 9
3) whether the relocation is insufficient and baltaland should provide just and fair reparation
to the zolo tribe under international law? .................................................................................. 9
PRAYERS FOR RELIEF ........................................................................................................xii

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LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM

& And

Art. Article

UDHR Universal Declaration on Human Rights

UN United Nations

ICJ International Court of Justice

ICESCR International Covenant on Economic Social and Cultural

Rights
V. Versus

Para Paragraph

Hon‘ble Honorable

VCLT Vienna Convention on the Laws of Treaties

ICCPR International Covenant on Civil and Political Rights

UNCRIT United Nations Convention on the Rights of Indigenous Tribe

UNDRIP United Nations Declaration on the rights of Indigenous People

UNCTID United Nations Conference on Trade and Development

INDEX OF AUTHORITIES

 INTERNATIONAL LAWS

S. No International Treaties, Conventions And Other Relevant Document

1) Vienna Convention on the Laws of Treaty, 1969

2) United Convention on the Rights of Indigenious Tribes, 1910

3) Universal Declaration on Human Rights, 1948

4) UN Charter

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5 The statue of International Court of Justice

6 The International Covenant on Civil and Political Rights

7 The International Covenant on Economic, Social and Cultural Rights

 CASE LAWS

S. No Case Laws

1. Cambodia v. Thailand) Judgment, I.C.J. Reports 2013

2. The Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15)

3. The case concerning the Temple of Preah Vihear (2013

4. The case of the Frontier Dispute between Burkina Faso and Niger

5. The Nuclear Tests case, 1974 (Australlia v France)

6. Hungary v. Slovakia, 1997

7 Armed Activities on the Territory of the Congo (Democratic Republic

of the Congo v. Uganda),

 BOOKS

S. No Books

1. Declaration on the rights of indegenous peoples- michel streich.

Rights of indigenous peoples
Issues and challenges - Angshu J. Fouzder
2. Education Media and the UN Declaration on the Rights of Indigenous
Peoples- Lorie M. Graham and Amy Van Zyl- Chavarro
3. Handbook of Indigenous Peoples' Rights - Coinne Lennox and Damien Short.

4. The Challenge of Respecting Indigenous Peoples' Rights

 JOURNALS, ARTICLES AND REPORTS

S. No Journals, Articles and Reports

1. GOOD FAITH IN INTERNATIONAL LAW, Steven Reinhold

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2. Protecting Indigenous Rights in International Adjudication

3. Principle of EU environmental law

4. Peace, dignity and equality on a healthy planet,United Nations

5. What are human rights? Published on 19 june 2019 by equality and

human rights commission
6. Department of Economic and Social Affairs Indigenous Peoples

7. Cultural Rights in the Case-Law of the International Court of Justice

8 The deliberate destruction of cultural heritages and how ( not) to repair

it
9. Public Interest before the ECTHR: Protection of Cultural Heritage and
the Right to Property
10. INTERNATIONAL LEASES AS A LEGAL INSTRUMENT OF
CONFLICT RESOLUTION: THE SHAB‘A FARMS AS A
PROTOTYPE FOR THE RESOLUTION OF TERRITORIAL
CONFLICTS
11. The Concept of Expropriation under the ETC and other Investment
Protection Treaties
12 The NARA document on authenticity (1994)

13 Expropriation ,UNCTAD Series on Issues in International Investment

Agreements II

 IMPORTANT DEFINITIONS

Applicant for the purpose of this memorandum shall stand for ―Kingdom of Dolostan‖

Respondent for the purpose of this memorandum shall stand for ―Republic of Baltaland‖

 DYNAMIC LINKS

Casemine | Legal & Case Research | US, UK, Indian Judgments and Law | CaseMine
JSTOR Home
http:/www.law.justia.com

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STATEMENT OF JURISDICTION

The Kingdom of Dolostan and the Kingdom of Baltaland, have consented to submit the
current dispute concerning the Shilahu Manene and other matters to the International Court of
Justice [“ICJ”/”the court”] conferring jurisdiction to The Court pursuant to Article 36(1) of
the Statute of the Court. The parties have transmitted the Special Agreement thereof
indicating the subject of dispute to the registrar of the Court in accordance with Article 40(1)
of the statute.

The parties under takes to accept any judgment of the Court as final and binding upon them
and shall execute it in its entirety and in utmost good faith.

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STATEMENT OF FACTS

Kingdom of Dolostan Dolostan is described as a "sovereign monarchy" that is ruled by

the House of Manolo. So it has a royal system of governance.
Dolostan is situated to the south of the landlocked country of
Baltaland within the Vozoka continent. Dolostan has a total
population of 40 million people, of which 100,000 are from the
Zolo indigenous tribe. Dolostan's economy primarily relies on
tourism and commercial fishing industries. It has a developing
economy but is also ranked as the happiest country in a WHO well-
being survey. Dolostan's commercial fishing industry follows
sustainable practices and has earned appreciation from
international organizations like the IMO and IUCN. The Kanawha
region was leased to Dolostan for 99 years by Baltaland in 1925 to
enable access for the Zolo tribe members living in Dolostan. Many
Zolo tribe members from Dolostan visit the Kanawha region during
summer and winter solstices to hold spiritual ceremonies and make
offerings to the sacred Shilaya Mana tree and grove.

Kingdom of Baltaland Baltaland is described as a "sovereign, democratic, republic

country". So it has a republican and, democratic system of
governance. Baltaland is a landlocked country situated in the centre
of the Vozoka continent, bordered by other countries including
Chezin, Aroko, Dolostan, and Enzokia. The capital city is Beyanka,
which is also Baltaland's largest city, located in the north-eastern
region. Current population is approximately 100 million people.
Baltaland has an economy mainly dependent on agriculture,
mining, and tourism. Baltaland follows a parliamentary system of
government. Its parliament is unicameral comprised of 127 elected
representatives. Baltaland has long struggled to supply enough
electricity to meet demand. This led to proposals for nuclear power
development in the Kanawha region, which Dolostan opposes.
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Turn of Events In the Early History, Kanawha region was originally inhabited by
indigenous Zolo tribe. The Zolo tribe had strong cultural ties to
sacred Shilahu Manene trees and forests. During Colonial era,
Central Vozoka continent was colonized by European powers in
17th century. Similarly, France retained control over area which is
now known as Baltaland. In 1925, Kanawha region was leased by
Baltaland to Dolostan for 99 years to enable Zolo tribe access.
From 2020 Onwards, Baltaland suffered severe earthquake
damaging infrastructure which led electricity shortage and
proposed nuclear plant in Kanawha region to which Dolostan Zolo
tribe objects to disruption of cultural practices. In 2021, Baltaland
pursues nuclear plant despite Dolostan objections and Proposes for
terminating 1925 Kanawha lease. In 2023, Baltaland unilaterally
terminates 1925 lease over Kanawha region and moves to build
nuclear plant to which Dolostan argues violations of international
law at ICJ.

Genesis of Dispute The Kanawha region in Southern Baltaland has been of cultural
significance and importance to the indigenous Zolo tribe since
ancient times. It is home to the sacred Shilahu Manene trees and
grove. In 1925, the Kanawha region was leased by Baltaland to
Dolostan for 99 years, allowing the Zolo tribe of Dolostan to reside
there and carry-on cultural activities. In 2020, Baltaland decided to
terminate this 1925 lease and construct a nuclear power plant in the
Kanawha region instead, to meet its electricity needs. Baltaland
proposed relocating the Zolo tribe residing in Kanawha to another
region in Baltaland called Chokiwa. However, Dolostan and the
Zolo tribe opposed this as it would impact their cultural identity
and heritage. Despite opposition, in 2023 Baltaland terminated the
1925 lease with effect from June 2023 for the purpose of
constructing the nuclear power plant. This unilateral termination of
the lease and takeover of the culturally-important Kanawha region

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by Baltaland forms the genesis of the dispute with Dolostan, which

argues it violates the rights of the Zolo tribe and international law.

Current Status Due to above state of circumstances, both the countries went to the
International Court of Justice through special agreement for
adjudication

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ISSUES RAISED

ISSUE 1

Whether or not, Baltaland‘s actions denying access of the Zolo tribe to their cultural
heritage violate international law?

ISSUE 2

Whether Baltaland's expropriation of the Kanawha region is inconsistent with

international law?

ISSUE 3

Whether the relocation is insufficient and Baltaland should provide just and fair reparation to
the Zolo tribe under international law?

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SUMMARY OF ARGUMENTS

ISSUE 1

It is humbly submitted before the International Court of Justice (ICJ) that Baltaland is bound
by international legal obligations to protect the human rights of indigenous peoples, including
under the UN Convention on the Rights of Indigenous Tribes (UNCRIT) which it has signed.
This includes duties to prevent deprivation of cultural rights or forced assimilation. Relevant
provisions are also found in other instruments like the ICCPR, ICESCR, and UDHR which
uphold minority groups' cultural, religious, economic and self-determination rights without
discrimination. These instruments obligate Baltaland. As a signatory, Baltaland must
implement the UNCRIT in good faith under the pacta sunt servanda principle in the Vienna
Convention on the Law of Treaties. This requires honest, sincere, and fair performance of
treaty duties. By unilaterally terminating the Kanawha region lease and evicting the Zolo
tribe, Baltaland has failed to act in good faith and breached its pacta sunt servanda obligations
under international law. Its actions violate specific UNCRIT provisions protecting indigenous
peoples from forced relocation or assimilation. It also fails to ensure the cultural rights
affirmed in the ICCPR, ICESCR and UDHR. The overarching argument is that Baltaland has
acted contrary to international treaties and customary legal principles governing the
responsibilities of states towards indigenous peoples as well as universal human rights. It
defied good faith compliance with its voluntary legal commitments to this vulnerable
minority group.

ISSUE 2

It is humbly submitted before the International Court of Justice (ICJ) that Baltaland's
expropriation of the Kanawha region from the Zolo indigenous people is inconsistent with
international law standards and norms. It states that unilaterally terminating the 1925 lease
allowing Zolo cultural access breaches the Vienna Convention principle of pacta sunt
servanda, violating the treaty terms. It further argues the expropriation fails to meet
international criteria that forceful takings adhere to due process, serve public necessity, offer
fair compensation, avoid discrimination, and obtain indigenous consent. In particular, human
rights instruments provide protections around minorities' cultural rights linked to ancestral
territories that restrict encroachments. Forcibly removing peoples contradicts commitments to
self-determination over livelihood. There is heightened duty to balance preservation of

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relationships between indigenous communities and traditional lands with resource

development. Relocation tears this bond central to identity. By hurriedly evicting the Zolo
without considering less disruptive alternatives or making effort to obtain consent, Baltaland
defied standards for lawful expropriation under the UN framework. Its actions cannot be
justified by appeals to development or administrative convenience alone. In essence, the key
contention is that inadequate regard was given to international legal constraints around
deprivation of minority cultural rights in land takings by the state. Baltaland abused its
authority and violated norms created to protect vulnerable peoples.

ISSUE 3

It is humbly submitted before the International Court of Justice (ICJ) that Cultural heritage
encompasses the tangible and intangible elements of identity and meaning for communities,
including sites, objects, traditions, and more. Destruction of cultural heritage during conflict
causes deep symbolic and social harm, attacking relationships between a community and its
sense of meaning and origins. International law recognizes duties to protect the cultural rights
of indigenous peoples in particular. However, heritage preservation requires going beyond
just rebuilding damaged sites to address immaterial connections people have with their
heritage and culture. Overall, cultural heritage protection is an rising challenge in conflict
scenarios as well as post-conflict responses in order to address the multi-layered spiritual,
emotional, and social trauma such destruction inflicts.

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ARGUMENTS ADVANCED

ARGUMENT 1

Whether or not, Baltaland’s actions denying access of the Zolo tribe to their cultural
heritage violates international law?

Baltaland violated its International Legal Obligation vis-a-vis UN Convention on the Rights
of Indigenous Tribes, 2010 [UNCRIT]. UNCRIT aims to protect the rights of the Indigenous
people as recognized in the Charter of the United Nations and UDHR.1

A.) Baltaland‘s human rights obligations give rise to the duty to comply with UNCRIT.

Human rights are rights inherent to all human beings, regardless of race, sex, nationality,
ethnicity, language, religion, or any other status. Human rights include the right to life and
liberty, freedom from slavery and torture, freedom of opinion and expression, the right to
work and education, and many more. Everyone is entitled to these rights, without
discrimination.
Human rights are the basic rights and freedoms that belong to every person in the world, from
birth until death. An abuse of right is said to occur when a State exercises its rights in such a way as
to encroach on the rights of another State, and that the exercise ―... is unreasonable, and pursued in an
arbitrary manner, without due consideration of the legitimate expectations of the other State.
Abuse of rights may take place in three distinct sets of circumstances:2

(a) A State exercises its right in such a way as to hinder another State enjoying its own
rights;
(b) A State exercises a right for an end which it was not intended for (improper purposes);
(c) Arbitrary exercise of a right causing injury to another party.

1
Preamble of UNCRIT 2010, UNDRIP_E_web.pdf
2
Cf Kiss (n 56) para 4; this is based on the maxim sic utere tuo ut alienum non laedas or "use
your property so as not to harm another"; Lauterpacht (n 43) 346., 7097031-47.2.Byers.pdf
(mcgill.ca)

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Therefore it clearly shows that the action taken by Baltaland has also abused the rights of the
individual and that directly violates international law.
Abuse of rights can also become particularly relevant when environmental resources are
shared.3

Indigenous Peoples are inheritors and practitioners of unique cultures and ways of relating to
people and the environment. ―Indigenous people‖ means people identified as ‗indigenous‘ by
each state party in accordance with its domestic law and practice. 4 Indigenous communities
have for long faced various human rights violations and have been denied the basic right to
their culture; while recognizing the development of human kind, as a whole.5 Indigenous
Peoples have sought recognition of their identities, way of life and their right to traditional
lands, territories and natural resources for years, throughout history, yet their rights have
always been violated. Indigenous Peoples today are arguably among the most disadvantaged
and vulnerable groups of people in the world. The international community now recognizes
that special measures are required to protect their rights and maintain their distinct cultures
and way of life.

Baltaland is responsible for the protection of human rights of the indigenous people as it has
binding force of UNCRIT, ICCPR, UDHR and ICESCR:
States shall provide effective mechanisms for prevention of, or redressal for:6
i. Any action which may have the aim and effect of depriving them of their integrity as
distinct peoples, or of their cultural values or ethnic identities;
ii. Any action which has the aim and effect of dispossessing them of their lands, territories, or
resources;
iii. Any form of forced population transfer which has the aim and effect of violating or
undermining any of their rights; and

3
Cf Kiss (n 56) para 4; this is based on the maxim sic utere tuo ut alienum non laedas or "use
your property so as not to harm another"; Lauterpacht (n 43) 346., (PDF) Good Faith in
International Law | Steven Reinhold - Academia.edu
4
Article 2 of UNCRIT 2010, UNDRIP_E_web.pdf
5
Preamble of UNCRIT 2010, UNDRIP_E_web.pdf
6
Article 4 of UNCRIT 2010, UNDRIP_E_web.pdf

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iv. Any form of forced assimilation or integration.

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language.7 Nothing in the present Covenant shall be interpreted as impairing the inherent
right of all peoples to enjoy and utilize fully and freely their natural wealth and resources.
Everyone has the right to the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author. ICESCR also Upholds the
right of all peoples to self-determination and to freely pursue economic, social and cultural
development and reinforces indigenous autonomy over livelihoods and territories. It also
recognizes the right of everyone to take part in cultural life and to benefit from protection of
moral and material interests resulting from any scientific, literary or artistic production and
significant basis for indigenous cultural protections.

The strong communal dimension of indigenous peoples' cultural life is indispensable to their
existence, well-being and full development...and includes the right to the lands, territories and
resources which they have traditionally owned, occupied or otherwise used or acquired.8
The ICJ now sees that people and territory go together‘, that ‗nomads have their history and
their modus vivendi, projected in time immemorial‘ and that, ‗even in the determination of
frontiers in regions inhabited by human groups of such dense cultural features, one should not
simply draw entirely and admittedly ‗artificial‘ lines, overlooking the human element‘

B) Baltaland is bound to enforce the UNCRIT in good faith as a signatory party.

Few rules for the ordering of society have such a deep moral and religious influence as the
principle of sanctity of contracts: PACTA SUNT SERVANDA.9 The principle that the Treaty
obligation must be fulfilled in good faith is one of the fundamental rules that requires all
subjects of international law to exercise in good faith their rights and duties under that law. It
7
Article 27 of ICCPR 1966, International Covenant on Civil and Political Rights | OHCHR

8
The UN Committee on Economic, Social and Cultural Rights General Comment No. 21 on Right to Take Part in
Cultural Life (2009), General comments | OHCHR
9
PACTA SUNT SERVANDA, The Principle Pacta Sunt Servanda and the Nature of Obligation Under International
Law on JSTOR

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is the jus necessarium.10 Men must be able to assume that those with whom they deal in the
general intercourse of society will act in good faith.11 The ordinary meaning of good faith is
‗honesty of purpose or sincerity of declaration‘ or the ‗expectation of such qualities in
others‘.12 ‗Good faith‘ is often used interchangeably with ‗bona fides‘, which is defined as
‗freedom from intent to deceive‘.13 The touchstone of good faith is therefore honesty, a
subjective state of mind, but the principle can also incorporate notions of fairness and
reasonableness, both of which concern an objective state of affairs. Good faith was
recognized as a general principle of law during the drafting of the Statute of the Permanent
Court of International Justice.14 The declaration on principles of international law concerning
friendly relations and co-operation among states in accordance with the charter of the United
Nations and the Final Act of Conference on security and co-operation in Europe contain the
following provisions of the principle:
1) Every state is obliged to fulfill in good faith its obligation
a) Under the UN charter
b) Under the generally recognized principles and rules of international law; and
c) Under treaties valid in accordance with the generally recognized principles and rules
of international law

2) The principle of pacta sunt servanda is also codified in the Vienna Convention of Law Of
Treaties under Article- 26:
a) Every treaty in force is binding upon the parties to it and must be performed by them
in good faith.

Applicant humbly submits it is without contention that the UNCRIT is not a mere political
document, it is a binding legal document and is the subject of legal scrutiny and binding legal
sanctions. The nature of UNCRIT is of a treaty and the observance of a treaty implies that the
signatory party is to implement the treaty in good faith, or to give effect to it. This obligation
derives from the PACTA SUNT SERVANDA obligation, codified in the Vienna
10
PACTA SUNT SERVANDA, The Principle Pacta Sunt Servanda and the Nature of Obligation Under
International Law on JSTOR
11
Roscoe Pound, An Introduction to the Philosophy of Law (1922) 188.
12 nd
Arthur Delbridge et al (eds), The ,Macquarie Dictionary (2 ed, 1991) 754.
13 nd
John Simpson abd Edmund Weiner (eds), The Oxford English Dictionary (2 Ed, 1989) vol. 2,379
14
Lord Phillimore in Permanent Court of International Justice: Advisory Committee of Jurists, Proces-verbaux
th th
of the Proceedings of the Committee, June 16 -July 24 , 1920, with Annexes (1920) 335.

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Convention.15 However Baltaland‘s action violated its International Legal Obligation vis-a-
vis UN Convention on the Rights of Indigenous Tribes, 2010 [UNCRIT], violating both the
principle of Good faith and Pacta Sunt Servanda. According to the International Court of
Justice, although good faith is ‗one of the basic principles governing the creation and
performance of legal obligations.‘16 The principle of Good Faith obliges the parties to apply it
in such a manner that its purpose can be realized.17

15
VIENNA CONVENTION ARTICLE 2(1) (a), 1_2_1986.pdf (un.org)
16
Nuclear Tests (Australlia v France) (Merits) [1997] ICJ Rep 253,268 (Nuclear Tests Case), Nuclear Tests
(Australia v. France) (icj-cij.org)
17
Hungary v Slovakia (merits) [1997] ICJ Rep 7,79, Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (icj-
cij.org)

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ARGUMENT 2

2) Whether Baltaland's expropriation of the Kanawha region is inconsistent with

international law?

A) The termination of the 1925 lease by Baltaland constitutes a breach of the treaty

obligations and agreements between Dolostan and Baltaland.

The leasing of territory between two states, a common practice for military, economic, and
other purposes, alters the normal exercise of sovereignty in the leased zone, as the right
assigned to the lessee or the Tenant , state allow it to display aspects of its sovereign authority
in the area designated by the lease.18

The Kanawha region was leased by the Government of Baltaland to the Kingdom of Dolostan
for a period of 99 years in 1925. As per the terms of the lease, the Zolo people have the
freedom to reside in Kanawha region, and carry on with their cultural activities. Dolostan will
have full control of the territory, and Baltaland will provide unhindered access to the
Kanawha region for any Zolo citizen of Dolostan who wishes to visit the territory. Baltaland
will not carry out any activity or exercise which would create any impediment in the exercise
of their rights by the Zolo tribe in the Kanawha region.19

Baltaland issued an order terminating the 1925 lease, effective from 1 June 2023, and the
Government of Dolostan was sent a notice to relocate its citizens to its own territories before
that date. Any further attempts by the Government of Dolostan to reopen negotiations
failed.20

Baltaland's alleged breach of the 1925 bilateral treaty leasing the Kanawha region comes to
violate Article 26 - Pacta sunt servanda21 as well as Article 60(3)(b) of Vienna Convention
also does not satisfy the requirement under Article 54 of VCLT which states :

The termination of a treaty or the withdrawal of a party may take place:

18
19
Para no.21, Fact of the case
20
Para no.31, Fact of the case
21
Article 26 of VCLT 1969, 1_2_1986.pdf (un.org)

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(b) At any time by consent of all the parties after consultation with the other contracting
States.

However the consent and consultation with the zolo tribe was not taken which again violates
the international law.

B.) Baltalands expropriation is in violation of the International Minimum Standards

"Expropriation is the compulsory transfer of property rights from a private owner to a state
for reasons unrelated to a breach of law. Expropriations can be total (depriving the owner of
the entire property) or partial (just part of it)."22 The Key aspects in UN definitions of
expropriation include:23
 Compulsory acquisition of property by the state
 Transfer of ownership against the wishes of legal owners
 Absence of illegal conduct by the owner
 May include full or partial takings of property

ICJ now sees that people and territory go together‘, that ‗nomads have their history and their
modus vivendi, projected in time immemorial‘ and that, ‗even in the determination of
frontiers in regions inhabited by human groups of such dense cultural features, one should not
simply draw entirely and admittedly ‗artificial‘ lines, overlooking the human element‘.24

These broadminded visions of international law have been developed further by the same
Judge in other cases, including the Kosovo advisory opinion (2010) and the recent judgement
regarding Request for interpretation of the judgment of 15 June 1962 in the case concerning
the Temple of Preah Vihear (2013)25

Also the Universal Declaration of Human Rights (UDHR):

 Article 17 prohibits arbitrary deprivation of property without due process of law or
fair compensation.
22
Trade and Development Report 2023 | UNCTAD
23
UNCTAD, Trade and Development Report 2023 | UNCTAD
24
Judge Antonio Cançado-Trindade, separate opinion, Chapter IX. The human factor and frontiers., 166-
20191108-JUD-01-03-EN.pdf (icj-cij.org)
25
Temple of Preah Vihear (Cambodia v. Thailand) Judgment, I.C.J. Reports 2013 (11 November 2013), Temple
of Preah Vihear (Cambodia v. Thailand) (icj-cij.org)

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International Covenant on Civil and Political Rights (ICCPR) also provides:

 Restricts government takings that interfere with minorities' cultural rights under
Article 27.
 Allows restrictions only when "necessary to promote the general welfare in a
democratic society" under Articles 18-27. High bar to justify.
International Covenant on Economic, Social and Cultural Rights (ICESCR) provides in:
 Article 1 upholds peoples' self-determination over resources and livelihoods,
restricting external control.
UN also has provided some Framework for it:
 Expropriation only permitted for public purpose following due process and reasonable
compensation per UNCTAD principles.
 Emphasis on non-discrimination in takings under law (UDHR Article 2).
 Balancing of cultural rights vs resource development - favoring alternatives with least
disruption per UNDRIP.
 Requiring consultation and consent from indigenous peoples on decisions affecting
rights/resources.
So in essence, key minimums are: clear public purpose, due process, adequate compensation,
non-arbitrariness, non-discrimination, necessity analysis, balancing competing interests, and
obtaining consent. Any expropriations must meet these under international standards.
Also Article 13 UNCRIT has provided that. ‗Indigenous peoples have the right to the lands,
territories and resources which they have traditionally owned, occupied or otherwise used or
acquired.‘
Article 54 of VCLT states: The termination of a treaty or the withdrawal of a party may take
place:

(b) At any time by consent of all the parties after consultation with the other contracting
States.

However it is applicant‘s submission that the consent and consultation with the zolo tribe was
not taken which again violates the international law. The action of Baltaland in expropriation
of Kanawha Region is inconsistent with the International law.Indigenous people see their
lands as gifts from their creator which they hold in trust for future generations. Expropriation
of land is a violation of this belief. Native spirituality is intimately linked to the landforms
and the natural world. The land is a source of food, medicine and clothing.

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ARGUMENT 3

3) Whether the relocation is insufficient and baltaland should provide just and fair
reparation to the zolo tribe under international law?

A) Material Reparations for Cultural Destruction is not fair and justifiable under
International Law
Cultural heritage includes artifacts, monuments, a group of buildings and sites, museums that
have a diversity of values including symbolic, historic, artistic, aesthetic, ethnological or
anthropological, scientific and social significance. It includes tangible heritage (movable,
immobile and underwater), intangible cultural heritage (ICH) embedded into cultural, and
natural heritage artifacts, sites or monuments.26 Cultural Heritage is an expression of the
ways of living developed by a community and passed on from generation to generation,
including customs, practices, places, objects, artistic expressions and values.27
The involvement of indigenous peoples and local communities in decision making,
monitoring and evaluating the state of conservation of properties was encouraged by the
world heritage committee in 2011.28 Indigenous peoples and individuals have the right not to
be subjected to forced assimilation or destruction of their culture.29 Indigenous peoples shall
not be forcibly removed from their lands or territories unless it is in the public interest. No
relocation shall take place without the free, prior, and informed consent of the indigenous
peoples concerned and after agreement on just and fair compensation and, where possible,
with the option of return.30

Armed Activities on the Territory of the Congo (DRC v. Uganda, 2005) - The ICJ determined
Uganda had violated international law through its military actions in the DRC. It held Uganda
liable to make reparations for loss of life, lost property, and natural resources exploitation.

26
Cultural heritage | UNESCO UIS
27
https://www.heritageforpeace.org/heritage-for-peace/what-is-cultural-heritage
28
World Heritage Centre - World Heritage and Indigenous Peoples (unesco.org)
29
Article 4(a) of UNCRIT, Fact of the case
30
Article 5 of UNCRIT, Fact of the case

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This affirmed the principle that reparations should aim to wipe out consequences of illegal
acts.31

Cultural heritage is not just a resource to be protected: It is a central element in the stories
that society tells itself about itself—its origins, character, future projects, its values, and
aspirations. Little wonder then that it becomes a target when tensions break out. The first case
heard at the International Criminal Court (ICC) exclusively for crimes against culture in The
Prosecutor v. Ahmad Al Faqi Al Mahdi (ICC-01/12-01/15). Al Mahdi, a member of the
group, pleaded and was found guilty of intentionally directing attacks against religious and
historic buildings in Timbuktu.32

In focusing only on the materiality of heritage reconstruction, we miss important aspects of

heritage‘s meaning and value; instead, we should move toward more diverse forms of
reparation that seek to restore heritage‘s immaterial features.33 The authenticity, significance,
and social value of heritage do not lie exclusively or even primarily in the materiality of an
object or site. They lie in people‘s relationships with it, in the emotions, stories, meanings,
and values ascribed to it, and these are much harder to recover after a site has been destroyed,
because the destruction does not occur in a vacuum but in a cycle of cultural violence with a
long history and long-term consequences.34

Indigenous peoples have the right to manifest, practice, develop, and teach their spiritual and
religious traditions, customs, and ceremonies; the right to maintain, protect, and have access
in privacy to their religious and cultural sites; the right to the use and control of their
ceremonial objects; and the right to the repatriation of their human remains with the duty to
cooperate with the State in ensuring development. And the States may seek, wherever
possible, to enable the access and/or repatriation of ceremonial objects and human remains in

31
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v.
Uganda), https://www.icj-cij.org/case/116
32
International Criminal Court, Public Reparations Order in the case of The Prosecutor v. Al
Mahdi, para. 85, 34–35. ICC-01/12-01/15, August 17, 2017, Reparations Order | International
Criminal Court (icc-cpi.int)
33
Dacia Viejo Rose and Marie Louise Stig Sørensen, “Cultural Heritage and Conflict: New Questions for an
Old Relationship”
34
The Nara Document on Authenticity (1994), The NARA document on authenticity (1994) -
International Council on Monuments and Sites (icomos.org)
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their possession through fair, transparent, and effective mechanisms developed in

consultation with indigenous peoples concerned.35 It is applicant‘s submission that Baltaland
has not acted in accordance with the above mentioned provisions so it clearly shows the
violation of international law that is binding to it as a party.
UNCRIT also provides States shall provide redress through effective mechanisms, which
may include restitution, developed in conjunction with indigenous peoples, with respect to
their cultural, intellectual, religious, and spiritual property taken without their free, prior and
informed consent or in violation of their laws, traditions and customs.36

The right to restitution of traditional lands, territories and resources, and cultural, intellectual
and spiritual property taken without proper authorization is recognized by the UN Draft
Declaration on the Rights of Indigenous Peoples, and the Principles and Guidelines for the
Protection of Heritage of Indigenous peoples. The criminalization of cultural heritage
destruction and the attempt to develop meaningful reparations is, however, a contemporary
challenge that demands more research, and a first step in this is a deeper understanding of the
harm caused by violence.

35
Article 6 of UNCRIT, Fact of the Case
36
Article 9 of UNCRIT, Fact of the Case

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PRAYERS FOR RELIEF

In the light of the issues raised, arguments advanced and authorities cited, may this Hon‘ble
International Court of Justice be pleased to:

1) Hold that the Baltaland's actions, denying the Zolo tribe access to their cultural heritage,
violate international law.

2) Declare that Baltaland's expropriation of the Kanawha region is inconsistent with

international law.

3) Hold that the relocation is insufficient and should provide just and fair reparation for the
Zolo tribe under international law.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Applicant as in duty bound, shall humbly pray.

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