ISSUE B: THAT RESTOVIA DID NOT BREACH ANY TREATY OR CUSTOMARY

INTERNATIONAL LAW OBLIGATION RELATED TO CONSULTATION OR FREE,

PRIOR, AND INFORMED CONSENT IN CONDUCTING ITS PROPOSED
DEVELOPMENT OF THE GORDIAN GORGE;
The Republic of Restovia submits that it has complied with all treaty and customary
international law obligations about consultation and participation regarding the development
of the Gordian Gorge. The claims made by the Alekostria, asserting a breach of the ARPA
and a failure to obtain FPIC under customary international law, are legally unfounded,
misinterpreting the specific commitments undertaken by Restovia and mischaracterizing the
current status of international indigenous rights standards.
I. RESTOVIA'S ACTIONS WERE IN FULL COMPLIANCE WITH
ARTICLE 18 OF ARPA.
The Republic of Restovia maintains that it has acted in full and demonstrable compliance
with its treaty obligations under the Alekostria-Restovia Plateau Agreement (ARPA) which
states that “Restovia agrees to ensure that duly authorized representatives of the Pilemon
communities in both High Contracting Parties are included in decision-making before it
makes any substantial change to the condition of the Plateau as of the effective date of
this Treaty.”1 This language sets a precise threshold as inclusion in decision-making before
a substantial change, only limiting the parties' intent to establish consultation and inclusion,
not a co- management or a mandatory veto. The core legal dispute hinges on the temporal
trigger for the consultation requirement and the standard of consultation required under the
treaty.
i. INTERPRETATION OF ARTICLE 18 OF ARPA:
In Botswana v. Namibia, this Hon’ble court held that “for the purpose of understanding this
Article, the intention of the drafters at the time of the conclusion of the Treaty shall be
taken into account”2 which is also mandated by Article 32 of the Vienna Convention on the
Law of Treaties (VCLT), which permits recourse to the preparatory works of the Treaty to clear
ambiguities. While in the present case, Restovia agreed to allow access to the Torngat Plateau
but refused to give decision-making authority to the Elders, viewing that as a threat to its
sovereignty. Instead, it allowed that Pilemon Elders from both the states would be consulted on
plans that might significantly affect sacred site, which was accepted by both Alekostria and
Sollania.3 This demonstrates that the formulation of Article 18 was a deliberate compromise,
where reflects that the Parties chose consultation and inclusion over an FPIC requirement. This
preparatory work is similar to the drafting history of Article 6 of ILO Convention No. 169,
where a proposal to mandate “consent” was ultimately rejected in favour of good-faith
consultation.4

1
Article 18, Alekostria-Restovia Plateau Agreement (ARPA)
2
International Court of Justice, Botswana v. Namibia, Para 88
3
Fact 17, Moot Compromis
4
Article 6 of ILO Convention No. 169
 ii. RESTOVIA’S FULFILLMENT OF THE DUTY TO CONSULT THROUGH
GOOD FAITH, AND ROBUST PARTICIPATION:
The foundation of treaty performance rests upon the principle of good faith. 5 The conduct of
Restovia must be assessed not as an obligation of guaranteed result, but as an obligation of
conduct along with the diligent effort to meet the treaty's requirements. 6 As Restovia
demonstrated immediate good faith by establishing the Indigenous Consultation Mechanism
(ICM) "a few days later" than the tender announcement. 7 The duty to consult mandates that
the process be "prior," meaning it must be initiated early enough to be influential. By
launching the ICM at the tender stage, before the state authorized physical implementation,
Restovia ensured the consultation was meaningfully prior to the executory decision, and To
satisfy the informed criterion, the Ministry of Natural Resources posted copies of the
thousands of pages of highly technical DPRs, accompanied by accessible synopses, to its
public website. Furthermore, a toll-free hotline staffed by technical advisers was provided,
which logged 61 instances of use by Elders, confirming active engagement and accessibility.
Along with it, To ensure inclusion, five forums were held, accommodating both Alekostrian
and Restovian Elders.8 Approximately 60 percent of Elders (200 individuals) attended at
least one forum. Crucially, the process was designed for maximum impact as individual
Elders proposed specific safeguards, primarily related to the use of explosives and road
construction in the Gordian Gorge. These recommendations were "accepted and incorporated
by all three bidders into revised DPRs".9 This modification of the project proposals, driven
directly by Pilemon input, constitutes a strong evidence of accommodation and fulfillment of
the “principle of good faith” and "due consideration" requirement on the part of Restovia in
establishing that the consultation was not perfunctory but genuinely capable of altering the
outcome and execution of the plan.

iii. THE STATUS OF RESTOVIA’S PARLIAMENTARY RESOLUTION AS A

NON-TRIGGERING PRELIMINARY ACT:
If Alekostria contends that the Parliamentary resolution of October 2020 showed a “firm
intent” that required consultation, then we the respondents submit that the Resolution was
simply an internal policy directive and not a binding kegal action as it only instructed the
government to “develop a plan” for exploiting the deposits, calling the discovery “of urgent
and paramount importance.10 In International Law, internal parliamentary resolutions are
usually seen as a non-binding policy recommendations to the government, not actions that
have immediate legal effect.11 The Resolution lacked the direct legal force necessary to
5
ICJ, Nuclear Tests Case (Australia v France), I.C.J. Reports 1974, Page 268, Para 46
6
P. F. V. Visscher, Due Diligence (Environmental Law), Max Planck Encyclopedia of Public International Law
(2011).
7
Fact 21, Jessup Moot Compromise
8
Fact 29, Jessup Moot Compromise
9
Fact 30 & 31, Jessup Moot Compromise
10
Fact 20, Jessup Moot Compromise
11
C. F. Amerasinghe, Principles of the Institutional Law of International Organizations (2d rev. ed. 2005) ; UN
commence the physical work, instead it required additional government action such as
specific legislation, tender process, evaluation of DPR’s and ultimately awarding of a
contract. The International Court of Justice in the Pulp Mills case established the requirement
that an Environmental Impact Assessment (EIA) must be conducted prior to the
implementation of a project and the State is not entitled to implement a planned activity
without waiting for the consultation to conclude, thus confirming that the consultation
process must precede the final executory decision.12 Similarly in the present case, Restovia
has fulfilled its procedural obligations with due diligence. The Ministry’s public
announcement required all bidding companies to include detailed plans outlining how they
would protect the cultural heritage sites of the Pilemon people, in line with Restovia’s
commitments under the ARPA and SRPA treaties. Moreover, bidders were required to
pledge efforts to restore mining areas and repair any environmental or cultural harm resulting
from their operations.13 Additionally, the government sent the Indigenous Consultation
Mechanism (ICM) documents to all Pilemon Elders, ensuring their participation in the
decision-making process before any executory act took place. 14 The consultation process
began in December 2020 and concluded with the revision of the DPRs in late 2022. No
substantial changes
occurred before the project’s official approval. Since the government had not yet made its
final decision during this period, the process remained open and consultative. Therefore,
Article 18 had not been triggered by any executive act of Restovia as the Consultation phase
concluded properly before any executory decision was taken, fully satisfying the procedural
and environmental requirements under international law.

II. RESTOVIA DID NOT INFRINGE CUSTOMARY INTERNATIONAL LAW.

The state of Restovia contends that no international custom was breached as the actions of
the state were in compliance wth the customs recognized in the international law.
i. THE CUSTOMARY INTERNATIONAL LAW RECOGNIZES
CONSULTATION, NOT A FREE, PRIOR, AND INFORMED CONSENT:
the Applicants have contended that the Republic of Restovia has violated customary international
law by failing to obtain the Free, Prior, and Informed Consent (hereinafter, FPIC) of the Pilemon
people. However, in Nicaragua V. United States of America, this Hon’ble court has held
“Identifying Customary International Law requires the concurrent existence of two
elements: State practice and Opinio Juris.” 15 While in the present case, neither element
supports the Applicant’s claim that FPIC constitutes a binding rule of customary international
law. As the Inter-American Court of Human Rights in the case of Kalina and Lokono v.
Suriname (para 47), has referred the FPIC term as “Free, Prior and Informed Consultation,

General Assembly, “How Decisions are Made at the UN” (2021).

12
ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010. Page 83, Para 132
and 205
13
Fact 20, Jessup Moot Compromise
14
Fact 21, Jessup Moot Compromise
15
Nicaragua V. United States of America (Para 183)
without addressing the term “Consent”.16 the Human Rights Committee of the United Nations,
have further stated that “it only recognizes an obligation to consult in good faith, rather than
an obligation to obtain to their Free, Prior and Informed Consent” 17 This reflects that the
only binding and recognized standard under Customary International Law is Consultation and
Inclusion, rather than Free, Prior, and Informed Consent. Restovia’s creation and operation of the
Indigenous consultation mechanism provides evidence of its compliance with the Customary
International Law duty of good-faith consultation and Inclusion. Moreover, The Canadian
Supreme Court highlighted the elements of a Meaningful Consultation in the case of Saugeen
First Nation v. Ontario, “the duty to consult requires the government to (i) give a notice to
the indigenous community (ii) provide them with details of the project; (iii) communicate
with them and review their advices and (v) follow a reasonable process to complete
adequate consultations.18 While in the present case, Restovia fulfilled each of these
requirements as It announced the mining project on two occasions and formally communicated
the invitation to participate through diplomatic channels, including emails sent to the
governments of Alekostria and Sollania. It provided comprehensive project details to the
Pilemon elders both physically and through virtual meetings. Moreover, the advice of the
Pilemon elders was duly considered and incorporated into the Detailed Project Report submitted
by the bidder.19 Lastly, Restovia exercised due diligence to ensure that the consultation process
proceeded smoothly and in good faith.

ii. UNDRIP LACKS NECESSARY OPINIO JURIS TO BE A BINDING LAW;

In accordance with UNDRIP there are certain rights vested to the indigenous people
however due to the lack of opinion juris on the UNDRIP the rights vested are not binding.20
Moreover the entire framework of UNDRIP is built on the premise that states have duties
toward the indigenous populations within their borders.21

iii. THE PRINCIPLE OF FREE, PRIOR, AND INFORMED CONSENT (FPIC) IS

NOT A CRYSTALLIZED RULE OF CUSTOMARY INTERNATIONAL
LAW;
In accordance with the international customs, UNDRIP is still a soft law 22 hence the principle
of FPIC which it creates23 is not binding upon Restovia, hence the binding factor in the
compromis is indeed the ARPA only which as mentioned prior was honored. Moreover

16
Kalina and Lokono v. Suriname (para 47),
17
Human Rights Committee of the United Nations
18
Saugeen First Nation v. Ontario
19
Fact 30, Moot Compromis
20
Free, Prior, and Informed Consent: A Struggling International Free, Prior, and Informed Consent: A Struggling
International Principle Emily M. McCulloch. Page 257
21
United Nation Declaration on the Rights of Indigenous people’s. Preamble.
22
Free, Prior, and Informed Consent: A Struggling International Free, Prior, and Informed Consent: A Struggling
International Principle Emily M. McCulloch. Page 257.
23
Article 11. United nations declaration on the rights of indigenous people.
scholarly analysis confirm that the FPIC is yet an “emerging” rule and not a hard law”24
hence making FPIC into a veto power for Alekostria to bar the development project is not
only ultravires to the state practice but also to the sovereignty of the state of Restovia.
This lack of widespread, consistent and uniform state practice particularly regarding the ability
of indigenous community to impose an absolute VETO to any development project solely on
the principle of FPIC, demonstrate the absence of opinio juris required to transform FPIC into
a bonding custom under CIL.25

III. THE DOCTRINE OF PERMANENT SOVEREIGNTY OVER NATURAL

RESOURCES (PSNR) PRECLUDES THE EXISTENCE OF A CIL-BASED
VETO RIGHT;
The platue is the territory of restovia 26 and the rare mineral found under the Gorge were of
paramount importance.27 The principle of permenant sovereignty over natural recources is a
fundamental principle of the international law, codified in ICJ jurisprudence and UNGA
resolutions28 it is one of the most basic principles of international law, which entails the
authority of a state within it’s territory 29 which is also enshrined in the UN charter 30 and
entails to the maximum authority of a state.
Restovia has exercised it’s authority in it’s own territory, there is no proof that the treaty
barred Restovia from the mining process and restrictions upon independent state’s cannot be
presumed31

IV. ARTICLE 27 CREATES NEGATIVE OBLIGATIONS, NOT A POSITIVE

RIGHT TO VETO DEVELOPMENT:

ICCPR protects the right of minorities to enjoy their own culture.32 The jurisprudence of
the HRC establishes that this is primarily a negative right a right to be free from denial or
destruction.33 It is not a positive right that confers a veto over all economic development
projects. It is essential to understand whether the measures "deny the right enjoyed under
Article 27" or have a "substantial impact" that threatens the survival of the culture itself.34
A temporary bridge closure and the initiation of mining, while disruptive, do not meet this

24
Free, Prior, and Informed Consent: A Struggling International Free, Prior, and Informed Consent: A Struggling
International Principle Emily M. McCulloch.
25
The Right to Free, Prior, and Informed Consent: Indigenous Peoples' Participation Rights within
International Law. Para 85.
26
Fact 8. Jessup moot compromise.
27
Fact 20. Jessup moot compromise.
28
From Sovereignty to Self-Determination: Emergence of Collective Rights of Indigenous Peoples in Natural
Resources Management - Georgetown Law, accessed October 14, 2025. Page 72.
29
Sovereignty. Samantha Besson. Encyclopedia entries. April 2011. Oxford public international law.
30
Article 2 (1). United Nations Charter.
31
Series a.-no. 70 September 7th, 1927, collection of judgments the case of the s.s. "lotus".
32
Article 27. International Covenant on Civil and Political Rights.
33
CCPR General Comment No. 23: Article 27 (Rights of Minorities).
34
Lansman (Ilmari) et al. v. Finland. Para 7.10.
high threshold of causing the cultural extinction.

The duty imposed on states is one of consultation and participation, not an obligation to
secure consent. The Committee has consistently used the language of "effective
participation," which aligns with the "inclusion" offered by Restovia's ICM, not the "FPIC
as a veto". In accordance with ICCPR, the state is obliged to respect and ensure religious,
ethnic, linguistic etc groups35 and Restovia has respected the elder and members of
Pilemon community36 from respecting the elders in governmental matters of discussions
regarding the preservation of the plateau. Hence the actions of Restovia was in compliance
with article 27 of ICCPR, as, “A state may understandably wish to encourage
development or allow economic activity by enterprises. The scope of its freedom to do so
is not to be assessed by a reference to a margin of appreciation, but by reference to the
obligations it has undertaken in article 27.” 37 Moreover in accordance with the ICCPR, the
right to profess religion has certain limitations of public safety, fundamental rights and
freedom of others etc38 hence the actions of Restovia were mandated by the exceptions as
the actions were prescribed by law, as they were passed by due process of the
parliament.39

Therefore, In light of the absence of consistent State practice and opinio juris supporting FPIC as
a consent-based obligation, the Applicant’s claim fails as Restovia has fully complied with its
obligations under customary international law by conducting meaningful, inclusive, and good-
faith consultations with the Pilemon people. So accordingly, no violation of customary
international law can be attributed to the Respondent.

35
Article 27. International covenant on civil and political rights.
36
Fact 12 & 17. Jessup moot compeomis.
37
Länsman I, HRC, Ilmari Länsman et al. v Finland (Communication No. 511/1992), para. 9.4.
38
Article 18. International covenant on civil and political rights.
39
Fact 20. Jessup moot compromise.