TEAM 910R

THE 2019 PUBLIC INTERNATIONAL LAW

MOOT COURT COMPETITION

THE CASE CONCERNING THE POPPY TRADE AND THE EL CAIMAN

RIVER CROSSINGS

THE FEDERAL REPUBLIC OF ARREPY

APPLICANT

V.

THE PRINCIPALITY OF RESTHEL

RESPONDENT

MEMORIAL FOR RESPONDENT

January 2019

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TABLE OF CONTENTS

Index of Authorities

Summary of Pleadings

Body of Pleadings

Prayer for Relief

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INDEX OF AUTHORITIES

Law
United Nations, Vienna Convention on the Law of Treaties,

UN General Assembly, Declaration on the Human Rights of Individuals

Who Are Not Nationals of the Country in Which They Live :
resolution / adopted by the General Assembly, 13 December 1985,
A/RES/40/144, available at: https://www.refworld.org/docid/3b00f00864.html
[accessed 18 January 2019]

United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980.
UN General Assembly, Responsibility of States for internationally wrongful acts :
resolution/adopted by the General Assembly, 8 January 2008, A/RES/62/61,
available at: https://www.refworld.org/docid/478f60c52.html
[accessed 18 January 2019]

UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects,

adopted 24 June 1995, Rome

1972 UNESCO World Heritage Convention

The International Covenant on Economic, Social, and Cultural Rights

United Nations Convention against Illicit traffic in Narcotic Drugs and

Psychotropic substances, adopted 1988

The United Nations and European Union have adopted similar definitions.
See for example United Nations Convention against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances Dec. 20, 1988 1582 U.N.T.S. 165, 170,
Article 1(f) and the Council of Europe Convention on Laundering, Search,
Seizure and Confiscation of Proceeds from Crime Approved in 1990, art. 1, para b,
item d

Manual on International Cooperation for the Purposes of Confiscation of Proceeds

of Crime, adopted in New York, 2012

Book
May 23, 1969, 1155 U.N.T.S. 331

Gallant, M. Money laundering and the proceeds of crime

(Edward Elgar: Cheltenham, 2005)


Caire. UNRIAA, vol. V (Sales No. 1952.V.3), p. 516, at p. 531 (1929)

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Financial Action Task Force Financial Action Task Force Guidance Document – Best Practices
Confiscation (Recommendations 3 and 38) (Financial Action Task Force: Paris, 2010) at p. 3.


Jurisprudence
Petrolane, Inc. v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 27, p.
64, at p. 92 (1991).

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SUMMARY OF THE PLEADINGS

I. The 1941 Pelligrino Concordat is not binding on the part of Resthel since the ruling head

of state then withheld his principal consent. Notwithstanding the fact that there was free flow of

people and goods between the parties for several years, the same does not constitute a special

custom between the two states for failing to satisfy the requirement of opnio juris sive

necessitates – the State of Resthel allowed such free flow not on the belief that the same was

mandatory but rather as a result of its exercise of discretion to issue visas and allow tax

exemptions. Regardless, an article that is illegal and violates public morals and policy cannot be

a proper subject of a trade agreement.

II. The State of Resthel did not violate the right to free exercise of religion and freedom of

movement of the Arrepyan citizens. The Applicant failed to establish any fact that would

constitute culpa on the part of Resthel. The alleged violations committed by supposedly

Resthelian law enforcement authorities are not official acts of the state for lack of real and

apparent authority.

III. The Respondent is justified in retaining custody of the El Diente Sagrado on the grounds

that the same is the property of Resthel and that it was properly confiscated as being an

implement of a crime.

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I. THE PRINCIPALITY OF RESTHEL’S LAWS ON CUSTOMS AND RIVER BRIDGES

ACT AND EXPANDED ANTI-EUPHORIA ACT ARE NOT ILLEGAL FOR BEING

CONTRARY TO INTERNATIONAL LAWS AND APPLICABLE TREATIES AND

CONVENTIONS BETWEEN THE PARTIES

A. The 1941 Pellegrino Condordat does not bind the Principality of Resthel

Under Article 11 of the Vienna Convention on the Law of Treaties (VCLT) 1, express

consent is needed to be bound by a treaty; it may be by signature, exchange of instruments

constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so

agreed. In the circumstance before this court, it was submitted that it was a known fact that at the

time the Arrepyan Senate ratified the Pelligrino Concordat, the ruling Prince of Resthel was

against the treaty and therefore withheld his Principal Assent. Therefore, with regard to the

Concordat, as same was signed but was not ratified by the head of State, Prince of Resthel, it

only produced the obligation of the signatory States to desist from any acts which would defeat

the objective and purpose of the treaty prior to its entry into force as provided in Article 18 of the

VCLT2.

The 1941 Pelligrino Concordat, while it is not considered a treaty, may neither be

considered as a Special or Local Custom binding the Principality of Resthel. Under paragraph 32

1 United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, vol. 1155, p.331 OR
May 23, 1969, 1155 U.N.T.S. 331
2 Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND PURPOSE OF A
TREATY PRIOR TO ITS ENTRY INTO FORCE A State is obliged to refrain from acts which
would defeat the object and purpose of a treaty when: (a) (b) It has signed the treaty or has
exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until
it shall have made its in tention clear not to become a party to the treaty; or
It has expressed its consent to be bound by the treaty, pending the entry into force of the treaty
and provided that such entry into force is not unduly delayed.

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of the compromis3 on the statement of Prime Minister Yuzof Al-Fez, the free trade and free

movement of Arrepyan nationals into Resthel was just in recognition and respect of the shared

history of these two states. This leads to the inevitable conclusion that the element opinio juris

sive necessitates is not present. The coincidental “compliance” of Resthel to the terms provided

for in the concordat is not on account that the Respondent has a well-founded belief that it is

obligatory but is rather a result of its exercise of discretion to issue visas and allow tax

exemptions. Application of visas necessarily includes the probability that same will be rejected.

Under the concordat, free flow of people shall be mandatory.

B. Principality of Resthel’s Expanded Anti-Euphoria Act did not violate applicable

international treaties and conventions between the Parties.

In the years prior to the enactment of the Expanded Anti-Euphoria Act of 2015 (EAEA)

in the Principality of Resthel, the imposition of penalties for illegal use, possession and trading

was passed in 1998 in response to the United Nations Office on Drugs and Crime (UNODC)

World Drug Report 1997 as provided in paragraph 19 of the compromis. The EAEA was the

reaction to the increasing incidents of serious drug addiction and a significant but negative social

and economic impact on the people of Resthel, accompanied by the massive scandal brought

about the disgrace of the then Prince Sumuntha V. The enactment of the EAEA was rooted

towards the desire of Princess Sarawi to control the Opium-related drug problem in Resthel

which caused the corruption even of the royal family.

3 Compromis, Special Agreement Between the Federal Republic of Arrepy and the Principality
of Resthel to Submit to the International Court of Justice the Differences Between the Two
States Concerning the Poppy Trade and the El Caiman River Crossings, Sept. 15, 2018, I.C.J.

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 C. Principality of Resthel’s Customs and River Bridges Act of 2016 did not violate

applicable international treaties and conventions between the Parties.

The intensified screening brought about the passage of the Customs and River Bridges

Act of 2016 (CURB Act), did not violate any provision of the International Covenant on Civil

and Political Rights. The determination of the search on all entry borders entering the

Principality of Resthel was to eradicate the increasing incidents of smuggling of opium poppy in

their borders and there was nothing in the approved law which singled out to whom the search

applies but it was enforced strictly to anyone who wishes to get across the borders of Resthel.

D. Even if the 1941 Pelligrino Concordat is indeed a binding treaty between

Arrepy and Resthel, the doctrine of Rebus Sic Stantibus applies

The foundation of the 1941 Pelligrino Concordat is instituted on the fact of the

recognition of Arrepy and Resthel’s economic interdependence which has substantially changed

after a few decades has passed. Since the outset of the treaty, the circumstances surrounding the

political and economic standing of both states, most specially Arrepy, have improved greatly

following the intervention of the UN Assistance Mission in Arrepy (UNAMA) to which ensued

to the inauguration of the Federal Republic of Arrepy and the stabilization of the political and

economic situation in Arrepy. Following the provisions on Article 61(1) of the VLCT4, it can be

argued that at the time of the negotiations of the 1941 Pelligrino Concordat, it was impossible to

foresee that the political and economic situation in Arrepy would improve in the near future as

there was continuous discord with the government and the constant coup d’etats of the

government military forces. Moreover, even until the late 1990’s, Arrepy’s government and the

4 May 23, 1969, 1155 U.N.T.S. 331

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police are still powerless as compared to the warlords who were the de facto rulers of the

Arrepyan regions outside government-controlled towns and cities which were the major

producers of opium poppy to which 80% of their products end up in Resthel illegally.

II. THE STATE OF RESTHEL DID NOT VIOLATE THE FREEDOM OF MOVEMENT

AND FREE EXERCISE OF RELIGION OF ARREPYAN NATIONALS

The applicant Federal Republic of Arrepy alleged in Section 43 of herein attached

Compromis that the Principality of Resthel committed official acts and omissions in violation of

the freedom of movement and free exercise of religion of its nationals. The respondent submits

that Honorable Court resolve the issue in its favor based on the following:

A. Freedom of movement is subject to such restrictions as may be provided by law

and which are necessary to advance public welfare.

Article 5 paragraph 2 of the Declaration on the Human Rights of Individuals Who are not

Nationals of the Country in which They Live 5 (“Declaration on Human Rights of Aliens” or

DHRA hereafter) provides that an alien, subject to restrictions as may be provided by law and

which are necessary in a democratic society to protect public safety, order, and morals, among

other things, shall have the right to leave the country and to enjoy the freedoms of movement and

of choice of residence. While aliens, regardless whether sojourning permanently or in mere

transient, are indeed entitled to such rights, the above-cited provisions also unequivocally

provides for limitations in the exercise of these liberties. The State of Resthel is indeed justified

in restricting the movement of the erring pilgrims not only because it is a legitimate exercise of

5 UN General Assembly, Declaration on the Human Rights of Individuals Who Are Not
Nationals of the Country in Which They Live : resolution / adopted by the General Assembly, 13
December 1985, A/RES/40/144, available at:
https://www.refworld.org/docid/3b00f00864.html [accessed 18 January 2019]
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its inherent police power but also because it is valid in international law. As discussed supra, the

Resthelian government has interest in restricting the movement of aforementioned group of

people to prevent the further proliferation of drug abuse, to promote public morals and public

policy, and as well as to facilitate judicial processes and the carriage of justice. Moreover,

freedom of movement, insofar as travel across borders is not an internationally constituted right

and is subject to a state’s power to issue visas and take actions it may deem necessary to protect

its territorial integrity. Noteworthy, the same document provides in its second article that the

declaration shall not be construed as restricting the right of a state to promulgate its own laws

and regulations regarding the entry of aliens and terms and conditions for their stay6.

B. The free exercise of religion of Arrepyans is not unduly burdened in relation to

the requirements provided for in the Declaration on the Human Rights of

Individuals Who are not Nationals of the Country in which They Live,

International Convention on the Civil and Political Rights, and the Universal

Declaration of Human Rights.

Article 5 of DHRA provides that:

“1. Aliens shall enjoy, in accordance with domestic law and subject to the relevant

international obligations of the State in which they are present, in particular the following

rights:

(e) The right to freedom of thought, opinion, conscience and religion; the right to

manifest their religion or beliefs, subject only to such limitations as are prescribed by law and

6 id.

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are necessary to protect public safety, order, health or morals or the fundamental rights and

freedoms of others7”

The aforementioned article of DHRA reveals that insofar as the obligations of the host

country is concerned, what was made incumbent is only for the state to afford aliens the same

rights it guarantees to its citizens. It is also noteworthy that by express provision of the DHRA,

the state’s internal law and those necessary to promote public welfare are deemed limitations

engraved in one’s free exercise of religion. Removing these limitations and reference to the

state’s internal law is to warrant a revolting tension of foreigners, alleging supposed rights from

international laws, demanding privileged position. Thus, the only pertinent question to ask is

whether or not aliens were afforded the same rights as those of the natives and, in the same vein,

if there are any restrictions, if these are applied to everyone of the same class. It is the

Respondent’s firm position that the answer is in the affirmative.

The records are bereft of any fact establishing that the Arrepyans were unduly

discriminated against in the exercise of their religion. The Applicant manifestly failed to produce

any substantial support to the effect that there were certain rights that Resthelian citizens are able

to enjoy and the alien Arrepyans did not. In fact, Sections 28, 33, and 34 of herein compromis

referred to the alleged victims of supposed state interference as “Lathan pilgrims”, not Arrepyans

nor Resthalians, recognizing the fact that the efforts of the Respondent’s government to fight

criminality in its borders have always been blind to nationality – valid restrictions pursuant to

Resthel’s inherent police power were indiscriminate. This is supported by the official report

published by DIBA which stated that there was no any concrete evidence of religious or racial

7 id.
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discrimination. Said report was based on 12,000 pages of testimony given by 550 witnesses,

including those alleged victims.

C. Conceding that there are indeed violations of freedom of movement and free

exercise of religion, such violative acts and omissions are not official acts of the

State of Resthel.

In a case brought before the International Court of Justice by the United States following

the occupation of its embassy in Tehran by Iranian militants (United States Diplomatic and

Consular Staff in Tehran8), the Court explained that in order to attach responsibility to a state,

which allegedly committed an internationally wrongful act, it must first be established how far,

legally, the act in question may be imputed to the supposedly erring state, and second, that the

same act must be incompatible with its obligations under treaties in force or under any other

rules of international law that may be applicable. The same requirement was adopted in

Responsibility of States for Internationally Wrongful Acts9 (2001) particularly in Article 2 of the

same document, which provides:

“Article 2 – Elements of an Intentionally Wrongful Act of a State

There is an internationally wrongful act of a State when conduct consisting of an action

or omission:

(a) Is attributable to the State under international law; and

(b) Constitutes a breach of an international obligation of the State.”

Whether there has been a breach of a rule may depend on the intention or knowledge of

relevant State organs or agents. In view of this, it can be gainsaid, that the element of attribution

8 United States Diplomatic and Consular Staff in Tehran, Judgment, I.C.J. Reports 1980.
9 UN General Assembly, Responsibility of States for internationally wrongful acts : resolution /
adopted by the General Assembly, 8 January 2008, A/RES/62/61, available at:
https://www.refworld.org/docid/478f60c52.html [accessed 18 January 2019]

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of an internationally wrongful act to a state is highly subjective. In the Convention on the

Prevention and Punishment of the Crime of Genocide10, for example, genocide was defined as

“acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious

group”. In other treaties, on the other hand, the standard for breach of an obligation is more

objective in so far as that the intention of state organs is irrelevant. The question then whether the

attribution of an internationally wrongful act is objective or subjective depends on each attaining

circumstance, including, among other things, the content of the primary obligation in question.

Respondent State of Resthel was put into inquiry for its alleged violations of the

Arrepyan freedom of movement and free exercise of religion in its territory. These rights of non-

citizens are enshrined in Article 5 of the Declaration on the Human Rights of Individuals Who

are not Nationals of the Country in which They Live which provides that:

“1. Aliens shall enjoy, in accordance with domestic law and subject to the relevant

international obligations of the State in which they are present, in particular the following

rights:

(e) The right to freedom of thought, opinion, conscience and religion; the right to

manifest their religion or beliefs, subject only to such limitations as are prescribed by law and

are necessary to protect public safety, order, health or morals or the fundamental rights and

freedoms of others

10 UN General Assembly, Convention on the Prevention and Punishment of the Crime of

Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277, available at:
https://www.refworld.org/docid/3ae6b3ac0.html [accessed 18 January 2019]

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 2. Subject to such restrictions as are prescribed by law and which are necessary in a

democratic society to protect national security, public safety, public order, public health or

morals or the rights and freedoms of others, and which are consistent with the other rights

recognized in the relevant international instruments and those set forth in this Declaration,

aliens shall enjoy the following rights:

(a) The right to leave the country;

3. Subject to the provisions referred to in paragraph 2, aliens lawfully in the territory of a

State shall enjoy the right to liberty of movement and freedom to choose their residence within

the borders of the state.11”

From the foregoing, the Respondent firmly believes that between the subjective and

objective attribution of internationally wrongful act, the former is the appropriate standard for the

determination of this element since the phraseology of the above-cited provisions reveals a

positive obligation, that the “aliens shall enjoy” and that host states shall protect, which more

often than not as revealed by this Honorable Court in United Kingdom v Albania12, requires the

establishment of culpa. Conceding, for example, that there are indeed breaches of the rights of

the Arrepyans within the borders of Resthel, absent culpa, penalizing the Respondent will be

injustice of unimaginable magnitude. To penalize the respondent for alleged violations of the

applicant’s citizens despite the State’s earnest efforts to fulfill its international and domestic

obligations is contrary to the calls of justice and what is ethical.

11 UN General Assembly, Declaration on the Human Rights of Individuals Who Are Not
Nationals of the Country in Which They Live : resolution / adopted by the General Assembly, 13
December 1985, A/RES/40/144, available at:
https://www.refworld.org/docid/3b00f00864.html [accessed 18 January 2019]
12 Corfu Channel, Merits, Judgment, I.C.J. Reports 1949, p. 4, at p. 23.

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 The compromis mutually set forth by herein parties are bereft of any record showing that

the State of Resthel was negligent in protecting the rights of the Arrepyans in its territory.

Section 28 provides that “overland traffic across the river bridges became hellish as every

vehicle was searched for smuggled poppy”, Section 33 “many Lathan pilgrims complained that

they were subjected to … body searches in ports of entry… accused of smuggling poppy”, and

Section 36 “56 were arrested and detained for smuggling opium-poppy”. These averments of

facts, if indeed violative of their rights and not legitimate exercises of Resthel’s sovereignty, in

no way establish the State’s alleged culpa. Did the State of Resthel feign a blind eye? What

actions or inactions did the Respondent commit? Was there any failure to institute measures to

prevent these alleged violations? These are the questions that the elusive compromis manifestly

failed to answer. Clearly, the first element of intentionally wrongful act of a state, as provided in

Article 2 of RSIWA and insofar as the Applicant failed to establish the culpa of the Respondent,

is wanting in this case.

The argument that the acts of an agent of a state is the acts of the state itself also finds no

application in the present case. Article 7 of the RSIWA provides:

“Article 7 – Excess of authority or contravention of instructions

The conduct of an organ of a State or of a person or entity empowered to exercise

elements of the governmental authority shall be considered an act of the State under

international law if the organ, person, or entity acts in that capacity, even if it exceeds it

authority or contravenes instructions.13”

13 UN General Assembly, Responsibility of States for internationally wrongful acts : resolution /

adopted by the General Assembly, 8 January 2008, A/RES/62/61, available at:
https://www.refworld.org/docid/478f60c52.html [accessed 18 January 2019]
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 While, indeed, pursuant to the above-cited provision, as a general rule, the act of a state’s

agent is the act of the state itself, a review of the jurisprudence enunciated by this Honourable

Court reveals that the present case is an exception.

In the Caire14 case, which involved the murder of a French national by Mexican officers

who, after failing to extort money, executed the victim, it was held:

“that… even if they are deemed to have acted outside their competence… have involved

the responsibility of the State, since they acted under cover of their status as officers and used

means placed at their disposal on account of that status.”

From the foregoing, it can be established that the central issue to be determined in

applying Article 7 to unauthorized conduct of official bodies is whether the conduct was

performed in an official capacity or not. Thus, the cases where officials acted in their state-

delegated capacity, albeit unlawfully or contrary to instructions, must be distinguished from

cases where the conduct of the alleged offender is so removed from the scope of their office that

it should be treated as having been performed by a private individual rather attributing it to a

state. This is the position adopted in Petrolane Inc v. the Government of Islamic Republic of

Iran15.

The pertinent question then to be answered is whether or not the conduct of supposed

agent comprises only the actions and omissions of organs carrying out their official functions

with real or apparent authority, and not the private actions or omissions of individuals who

merely happen to be organs or agents of the State. In the instant case, it is the latter.

14 Caire. UNRIAA, vol. V (Sales No. 1952.V.3), p. 516, at p. 531 (1929)

15 Petrolane, Inc. v. The Government of the Islamic Republic of Iran, Iran-U.S. C.T.R., vol. 27,
p. 64, at p. 92 (1991).

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 In Section 43(b) of herein compromis, the Applicant admonished the official acts of

customs and police agents of Respondent Resthel for allegedly violating the rights of Arrepyan

citizens. Other than the justified seizure of the Diente Sagrado, the discussion of which will be

had infra, the only fact established by the Applicant which has colorable effect is found in

Section 34. Said section narrated how some Lathan pilgrims complained of being subjected to

body searches and reported being falsely accused of smuggling poppy. They further claimed that

these same officials extorted money from them to “settle the violation”.

Interposing these violations allegedly committed by the Resthalian law enforcers and the

generally recognized responsibility of the police of maintaining public safety and enforcing the

law, the position that these officers acted with real or even the less stringent apparent authority

escapes reason. Needless to say, to “settle the violation” is a judicial power that can be exercised,

generally, only after a fair hearing that necessarily includes the observance of due process and

the advancement of all other relevant rights. It involves the establishment of facts, resolution of a

controversy, and the application of relevant laws. Clearly, these are beyond the real authority of a

police or customs officer who lack the necessary training to understand the rigidities of the legal

system. Moreover, to claim that the complained actions fall squarely under the less stringent

requirement that the agents need only appear to have authority is a ridiculous and unwarranted

stretch intended only to serve the interests of the Applicant. Not only are police officers in this

case without competency to “settle the violation” (as they are not clothed with judicial power),

but they are also without apparent authority owing to the fact that the power they sought to

exercise is so far-flung from their official duties, so much so that it belongs to another branch of

government. To mistake a police officer for a judge is too far from human experience. In fact,

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more than anything, the Arrepyans who opted to “settle the violation” should be held

accountable for attempting to corrupt the system.

III. RESTHEL MUST IMMEDIATELY RETURN THE DIENTE SAGRADO TO

ARREPY, ITS LAWFUL OWNER.

It has been alleged that following the establishment of a special task force to address the

illegal importation of opium-poppy into Resthel, it had been determined that seventy percent of

such importation was done through drug mules posting as Lathan Pilgrims. In addition to this, in

August 2017, a total of 500 grams of poppy bulbs were found inside the hollowed joints and

holes of the carriage of the Diente Sagrado, while some were found inside the other religious

paraphernalia. In response to this, the Bureau of Investigation of Resthel (BIR) confiscated the

carriage components as well as the religious paraphernalia found to have been used to transport

the illegal substances prohibited by the local law on the matter. Due to the territorial nature of

criminal law, Resthel took criminal jurisdiction, including the custody and safekeeping of the

arrested Arrepyan pilgrims and the religious paraphernalia including the Diente Sagrado.

As a result of this action by the Resthelian government, the Arrepyan government hereby

requested the immediate return of the Diente Sagrado to Arrepy, among several other demands.

Respondent hereby stands its ground that the Applicant is in no position to demand such request

based on several grounds, and that such return therefore is not obligatory upon Resthel.

A. Resthel should not be compelled to return the Diente Sagrado to Arrepy

The respondent is on the position that the Court should dismiss the Applicant’s claim as

the lawful owner of the Diente Sagrado. Before going into the details of this argument, the

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Respondent wants to resolve the issue of ownership through historical facts as its basis which

would determine and administer who has a better right to retain the Diente Sagrado.

Relying on the facts of the case, it can be established that the Diente Sagrado is owned by

the Resthelian Empire through historical basis, as regards the origin of the Lathan Faith. It can be

deduced that dating back to the year 1635, where the Resthelians worshipped in honor of Latha,

the great alligator god. Resthel’s Capital Juril became an important trade center in the region and

it was during this time, Tevazu Sanctuary was completed atop the Sacred Hill outside the walls

of Juril. The ancient Resthelians believed that Latha caused the annual flooding of the El Caiman

River with a single whip of his large tail. Nearly after 200 years, Resthel has conquered many

neighboring states, including Arrepy, making the citizens of the latter as citizens of the

Resthelian Empire. With great influence of the priests of Latha, they have aggressively

propagated the Lathan faith making Arrepyan devotees practice the Sacred Pilgrimage of

Cleansing.

With these observations in mind, Respondent submits that the applicant cannot claim

ownership over the Diente Sagrado. As Resthel being the primary owner of the Diente Sagrado,

they have a better right to retain and take care of the Cultural object. There can be no repatriation

as their basis under Article 1 of the UNIDROIT Convention on Stolen or Illegally exported

Cultural Objects16, to wit:

“Article 1

This Convention applies to claims of an international character for:

16 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, adopted 24 June

1995, Rome (hereinafter, UNIDROIT)
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 (a) the restitution of stolen cultural objects;

(b) the return of cultural objects removed from the territory of a Contracting
State contrary to its law regulating the export of cultural objects for the purpose
of protecting its cultural heritage (hereinafter "illegally exported cultural
objects").”

The Diente Sagrado is not a stolen cultural object under the terms stated in the

convention. Their claim is bereft of merit and none of the facts state that they have legal

ownership of the Diente Sagrado but ultimately, although they have a right to take care of the

cultural property under the Operational Guidelines for the implementation of the World Heritage

Convention, as a state party, they should respect the sovereignty where the Cultural property may

be found, as quoted:

“I.C The States parties to the World Heritage Convention

xxx

15. While fully respecting the sovereignty of the States on whose territory the
Cultural and natural heritage is situated, States parties to the Convention
recognize the collective interest of the international community to cooperate in
the protection of this heritage. State Parties to the World Heritage Convention…”

There may be a shared cultural interest in the Diente Sagrado between Arrepy and

Resthel because of the wave of decolonization what led to the birth of new nations and the

redrawing of national boundaries. As a result of this successor influx, property claims, both

territorial and personal and, obligations, both treaty and contractually based, have arisen.

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B. The approval of the proposal of Arrepy to make Diente Sagrado as World Heritage does

not confer ownership to them. –

One of the main bones of contention of the Applicant in its demand for the return of the

disputed artifact is because of its registration to the World Heritage Convention as a cultural

heritage property by said country. According to the 1972 World Heritage Convention 17, of which

both parties have signed and ratified, the rationale of such international convention is to protect

the destruction, decay, and loss of those designated as World Heritage. By virtue of the Act to

Legally Protect Arrepy's Cultural Assets (ALPACA) providing for the strict enforcement of laws

in relation to the protection and preservation of cultural assets, said government submitted a

proposal that the Diente Sagrado be included on the UNESCO's World Heritage List which was

approved on March 5, 1992. Due to the religious significance of the Dente Sagrado, it is

considered a cultural heritage as defined in Article 1 of the World Heritage Convention.

Specifically:

“Article 1

For the purposes of this Convention, the following shall be considered as “cultural
heritage”:

– monuments: architectural works, works of monumental sculpture and painting, elements

or structures of an archaeological nature, inscriptions, cave dwellings and combinations
of features, which are of outstanding universal value from the point of view of history, art
or science;

– groups of buildings: groups of separate or connected buildings which, because of their

architecture, their homogeneity or their place in the landscape, are of outstanding
universal value from the point of view of history, art or science;

17 1972 UNESCO World Heritage Convention (hereinafter, “World Heritage”)

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 – sites: works of man or the combined works of nature and of man, and areas including
archaeological sites which are of outstanding universal value from the historical, aesthetic,
ethnological or anthropological points of view.”

This being noted, it does not follow that when a State Party to the Convention nominates

a cultural heritage property and is thereafter approved by the UNESCO, such property belongs to

that State.

The 1972 World Heritage Convention’s 18 approval that the Diente Sagrado as their

cultural property is of no moment. Under the Operational Guidelines of the World Heritage

Convention:

“14. State parties are encourage to bring together their cultural and natural heritage
experts at regular intervals to discuss the implementation of the Convention. States
parties may wish to involve representatives of the Advisory bodies and other experts
as appropriate
.
15. While fully respecting the sovereignty on whose territory the cultural
and natural heritage is situated, States Parties to the Convention recognize the collective
interest of the international community to cooperate in the protection of this heritage.
States parties to the World Heritage Convention, have the responsibility to19:

a) ensure the identification nomination, protection, conservation, presentation, and

transmission to future generation of the cultural and natural heritage found within their
territory, and give help in these tasks to other States parties that request it20;

b) adopt general policies to give the heritage a function in the life of the community21;

c) integrate heritage protection into comprehensive planning programmes;

d) establish services for the protection, conservation and presentation of the

heritage;
xxx

18 id. at note 7.
19 Article 6(1) of the World Heritage Convention.
20 Article 4 and 6(2) of the World Heritage Convention
21 Article 5 of the World Heritage Convention

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 f) take appropriate legal, scientific, technical, administrative and financial measures to
protect the heritage;
xxx

h) not take any deliberate measures that directly or indirectly damage their heritage or
that of another state party to the convention22;

i) submit to the World Heritage Committee an inventory of properties suitable for

inscription on the World Heritage List (referred to as Tentative List)23;

xxx”

In addition to these, Article 11, Paragraph 3 of the World Heritage Convention 24 states

that:

“3. The inclusion of a property in the World Heritage List requires the consent

of the State concerned. The inclusion of a property situated in a territory,

sovereignty or jurisdiction over which is claimed by more than one State

shall in no way prejudice the rights of the parties to the dispute.”

That the Diente Sagrado is a religious property of universal significance is of no

contention, as it is sacred and an important symbol of the Lathan Faith. Said religion is practiced

not only in the territories of both parties, but also other countries adjacent to it, as was stated in

the compromis. In other words, it was included in the list by reason of its religious significance

and not on the basis of mere location or property of one single country, since the Lathan Faith,

although a majority resides in Arrepy, is scattered or is present in several countries, even in

Respondent country. Proceeding from this, Arrepy cannot be said to have the sole control and

authority over the disputed religious artifact precisely because as a cultural artifact and a

moveable property, it does not belong to Arrepy alone.

22 Article 11(1) of the World Heritage Convention.

23
Article 6(3) of the World Heritage Convention.
24 Article 11 (3) World Heritage Convention.

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 Furthermore, the Respondent government has the obligation to protect its citizens and to

enforce the law to protect its state interest. By virtue of the Expanded Anti Euphoria Act

(EAEA), the Customs and River Bridges Act of 2016 (CURB Act) and the Drug Intelligence

Board Act of 2016 (DIBA), which are local laws, Resthel is within its rights to arrest the

pilgrims and to confiscate the Dente Sagrado for sfekeeping and investigation, since its laws

were violated by said persons.

Moreover, pursuant to binding force of the stipulations in Article 21 of the Pelligrino

Concordat of 1941 as agreed by both parties, while freedom of movement shall be secured, the

respective states may enforce prohibitions and regulations if validly justified on the grounds of

public morality, public policy, and public security, among others. Specifically, Article 21,

Paragraph 1 of the Concordat provides:

“(1) Freedom of movement of persons shall be secured between the respective

territories of the Contracting Parties without prejudice to any exception

justified on the grounds of public morality; public policy or public safety;

the protection of health and life of humans, animals or plants and of the

environment; the protection of national treasures possessing artistic, historic

or archaeological value; or the protection of industrial and commercial property.”

Therefore, Respondent’s acts of confiscation and safekeeping of the artifacts and the

arrest of the pilgrims cannot be said as an attack to the freedom of religion and of travel, nor is

the enforcement of said law a violation of the rights enunciated in the International Covenant on

Economic, Social and Cultural Rights (ICESCR) 25 to which both parties are signatories.

25 The International Covenant on Economic, Social, and Cultural Rights (hereinafter ICESCR)

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Respondent is well within its mandate and obligation to enforce its laws to protect its citizens

and the well-being of the State.

C. Confiscation of the Diente Sagrado is valid.

Herein Applicant and Respondent as state members of the United Nations, may use or

take credence on United Nations Convention against Illicit Traffic in Narcotic Drugs and

Psychotropic Substances 26 , even though Arrepy and Resthel are not signatories to this

convention, it is one of the three major drug control treaties currently in force. Wherein, this

convention may be applied in cases of illegal drug trades as a customary law.

One of the essential parts of a country’s criminal justice system is its ability to deprive

criminals of their illegal earnings. Confiscation or forfeiture is the most common mechanisms to

deprive criminals of their financial benefit of their illegal activities 27. As a penalty measure,

Confiscation takes place by permanent dispossession, or removal of finances, or other resources

by an order of a competent authority or as a result of criminal or civil proceedings 28. There are

three types of confiscation mechanisms:

“1. confiscation of the proceeds of the instrumentum sceleris, or instrumentalities

of crime,

26 United Nations Convention against Illicit traffic in Narcotic Drugs and Psychotropic
substances, adopted 1988
27 Financial Action Task Force Financial Action Task Force Guidance Document – Best
Practices Confiscation (Recommendations 3 and 38) (Financial Action Task Force: Paris, 2010)
at p. 3.


28 The United Nations and European Union have adopted similar definitions. See for example
United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances
Dec. 20, 1988 1582 U.N.T.S. 165, 170, Article 1(f) and the Council of Europe Convention on
Laundering, Search, Seizure and Confiscation of Proceeds from Crime Approved in 1990, art. 1,
para b, item d
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 2. consfiscation of the objectum sceleris or subject of the crime, and

3. fractum sceleris, or fruits of the crime. “

It must be noted that an important part of confiscation is the forfeiture of the proceeds of

crime. Forfeiture can be defined as “the surrender or loss of property or rights without

compensation” 29 . It was usually used to dispossess “a traitor or felon of all his personal

property”, and it permits the court to “take property that is immediately connected with the

criminal offense”.

Under the Manual on International Cooperation for the Purposes of Confiscation of

Proceeds of Crime30, to wit:

29. “Administrative confiscation generally involves a summary mechanism for

confiscating assets used or involved in the commission of the offense that have been seized in the
course of the investigation. It may occur by operation of statute, most often seen in the field of
customs enforcement of illicit drug laws, when the possession of the property seized is the
offense. This process is effective when the seized item can be moved and taken under the State’s
control…”

In line with the foregoing, the Principality of Resthel was well within its power to enforce

the confiscation of the Diente Sagrado in its exercise of its sovereignty to deprive the Arrepyans

of the Diente Sagrado for the reason that they have used the Diente Sagrado as an instrument to

smuggle illegal drugs to Resthel while going through the Customs check of the Resthelian

customs officers stationed at the Colgando Bridge. The Customs officer have a probable cause to

arrest and confiscate the Diente Sagrado and other implements used in the offense. Resthel, as a

sovereign state, has an obligation to prohibit the smuggling or trade of illegal drugs to protect the

interests of its citizens.

29 Gallant, M. Money laundering and the proceeds of crime (Edward Elgar: Cheltenham,
2005)

30 Manual on International Cooperation for the Purposes of Confiscation of Proceeds of Crime,
adopted in New York, 2012

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PRAYER FOR RELIEF

Considering these arguments, the Principality of Resthel prays for this Honorable Court to grant

the following affirmative reliefs:

1. To dismiss the case for lack of merit;

2. To declare that the Customs and River bridges Act and Expanded Anti- Euphoria Act

are not illegal;

3. To declare that the acts of Resthelian customs and Police agents are not illegal and thus did

not violate their right to exercise religion, freedom of movement, and right to consular

assistance.

4. To declare that Resthel is the lawful owner of the Diente Sagrado

5. To declare that the Confiscation of the Diente Sagrado is valid.

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