Inaugural Problem 2006

 

 

Susan J. Ferrell Intercultural Human Rights
Moot Court Competition

The Aratite Aquene Controversy

The Aquene are an indigenous people who have lived in what is now the region of Etania in the country of Cyzarine since time immemorial. Their central places of worship, including the sacred Novoa Hall, are located on their territory within Cyzarine. During the winter seasons, which last for about six months of the year, the Aquene travel across the border of Cyzarine into Bhoomi, the neighboring country to the South. Bhoomi is lower in elevation and is more favorable to the Aquene’s health, due to their minimal tolerance of cold weather. This seasonal migration has been a common practice of the Aquene even prior to the subdivision of the land into two independent countries approximately two centuries ago. The Aquene were made citizens of Cyzarine via a Cyzarine statute of 1923.

Since its inception, Cyzarine has considered the land where the Aquene live to be without any economic value to the country. In a treaty between Cyzarine and the Aquene, entered into in 1852, Cyzarine recognized the Aquene’s right to reside on their ancestral lands. It was expressly stipulated that the sole purpose of the grant of land to the Aquene was to ensure their use of its surface for sustenance in the traditional ways, i.e. for hunting, gathering, and limited forms of agriculture. This was agreed to by the then President of Cyzarine, Mykel Telir, and the Aquene tribal council. Unfortunately, there is only one copy of the “Treaty of Aquene” left, and this copy had not been signed by the tribal council. This copy of the treaty was signed only by the President of Cyzarine. Still, President Telir’s letter of ratification has been preserved and left on display within Novoa Hall since 1852.In 1954, an earthquake hit Etania, causing massive loss of life and devastation of property. The earthquake, however, also revealed the presence of a rare and valuable mineral in the soil of the Aquene territory. The mineral contained a high concentration of Aratite, a substance used in manufacturing phosphate fertilizers, and one essential for various industries. The Aquene named this compound mineral “Aratite Aquene” and, in certain doses and applications, found it to be extremely useful in combating certain illnesses that befell their people. Over a couple of years, the Aquene began extracting this substance from the earth and applying it to their people as part of their stock of traditional medicines.In 2000, a team of medical anthropologists and, soon thereafter, the Cyzarine Department of Agriculture and Mining became aware of the medicinal and corresponding economic value of this newly discovered mineral. Informed by the Department, the Cabinet of Cyzarine saw the enormous potential of this discovery for the economic development of the country and, in particular, the region of Etania. It quickly dispatched an exploratory team into Etania in an effort to extract the mineral and manufacture it for use as a pharmaceutical substance that could be marketed and sold around the globe. The Department of Agriculture and Mining hired a private contractor, Stavros, Linden, and Beltic, SL&B, who it had entrusted with governmental projects before, to conduct the process of excavation and manufacturing. SL&B constructed a mining plant within Etania, excavated the mineral, and manufactured the new drug. As part of this process, SL&B entered into labor contracts with the Aquene. A majority of the members of the Aquene tribal council had agreed to these contracts, arguing that this cooperative venture would provide the “last best chance” for the tribe’s economic development. Before the vote on the contract was taken, each of the members of this majority of the tribal council had received payment of $150,000 from SL&B.In relevant part, the contracts stated the following:

 Members of the Aquene tribe over the age of eighteen (18) shall provide all labor-related services for SL&B including, but not limited to mining, field work (moving stones, rocks, and debris) and all work needed in the manufacturing plant. Payment for services rendered shall be in the form of shelter on the Aquene territory, which is partially being excavated. Shelter shall consist of any home already constructed on the land. In addition SL&B shall provide 1/8 acre to each worker for farming. For workers belonging to the same family, SL&B shall provide ¼ acre if the family unit is greater than two (2) but not more than four (4); if greater than four (4), SL&B will have the discretion to provide the necessary acreage. This, by no means, confers any ownership rights to the land provided. The use of the land shall consist solely of farming and shall last for the duration of each worker’s employment with SL&B. Breach of this agreement subjects any offending member of the Aquene tribe, as well as the tribe itself, to civil and criminal liability, including but not limited to monetary damages and incarceration.

The rank and file of the Aquene protested vigorously against the invasion of their land, the excavation and appropriation of the Aratite Aquene, and the labor contracts in an effort to regain possession and full enjoyment of their land. In a new election, the members of the tribal council who had consented to the labor contracts were ousted, and the new tribal council attempted to enforce the claims of the rank and file in domestic tribunals. They found, however, no relief in the court system of Cyzarine. The President’s nephew, Sheldon Beltic, is the chief justice of the Supreme Court of Cyzarine. Upon losing the battles in Cyzarine courts, the Aquene sought the help of the Bhoomi government.The Bhoomi government attempted to engage the Cyzarine government in discussions about the efforts of the Aquene to regain control of their territory and rights to the mineral found on their land. These talks ended in more controversy when the Bhoomi government decided, via statute in 2004, to confer Bhoomi citizenship upon the Aquene and thus establish Bhoomi’s right to diplomatic protection on their behalf. Cyzarine rejects that grant of citizenship and does not accept Bhoomi’s diplomatic protection of the Aquene. Upon the failure of diplomatic channels, Bhoomi now submits the dispute to the International Court of Justice. The Bhoomi government asks the International Court of Justice to adjudge and declare the actions by the Government of Cyzarine in invading the lands of the Aquene, extracting their mineral resources, and violating their rights to traditional knowledge, as well as forcing members of the tribe to provide labor under unlawful contracts as violative of international law. The Government of Cyzarine asks the International Court of Justice to dismiss this application, since the Court lacks jurisdiction. In the alternative, it asks that the complaint be declared inadmissible or manifestly ill-founded.

Both Bhoomi and Cyzarine have ratified the 1928 General Act for the Pacific Settlement of International Disputes, as well as the UN Charter and the 1966 International Covenant on Civil and Political Rights without any reservations.