in the international court of justice at the ......measures, transmitting a copy to the registrar of...
TRANSCRIPT
Team 2120
25TH STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION, 2020-2021
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE, THE NETHERLANDS
QUESTIONS RELATING TO
PROTECTION OF BATS AND INTERNATIONAL TRADE MEASURES
THE FEDERAL STATES OF ALDUCRA
APPLICANT
VS
THE REPUBLIC OF RUNBETI
RESPONDENT
13TH NOVEMBER 2020
MEMORIAL FOR THE APPLICANT
TABLE OF CONTENTS
INDEX OF AUTHORITIES ........................................................................................................ 4
TABLE OF ABBREVIATIONS .................................................................................................. 9
QUESTIONS PRESENTED ....................................................................................................... 11
STATEMENT OF JURISDICTION ......................................................................................... 12
STATEMENT OF THE FACTS ................................................................................................ 13
Background of the parties ......................................................................................................... 13
Runbeti´s WFP ........................................................................................................................... 13
Alducra´s Trade Policy .............................................................................................................. 14
Controversy ............................................................................................................................... 15
SUMMARY OF THE ARGUMENTS ....................................................................................... 16
I. Runbeti´s WFP violates international law and causes TEH to Alducra ........................... 16
II. Alducra’s 2019-Statute is consistent with the ARTA. ........................................................ 16
ARGUMENTS ............................................................................................................................. 17
I. Runbeti´s WFP violates International Law. ........................................................................... 17
I.1. Runbeti’s planning/operation of the WFP and omission to apply precautionary/mitigation
measures violates the CBD and the PP. ................................................................................ 17
I.1.1. Runbeti is bound to comply with the PP. ................................................................. 19
I.1.2 Runbeti did not adopt precautionary measures in the planning of the WFP, violating
Art.14-a-b of CBD and the PP. .......................................................................................... 19
I.1.3 Runbeti did not adopt conservation/mitigation measures after the operation of the
WFP, violating Art.14.d of the CBD and the PP. .............................................................. 21
I.2.Runbeti’s omission to monitor the effects and manage the impacts of the WFP violates the
CBD. ...................................................................................................................................... 22
I.2.1 Runbeti´s omission to monitor Royal-Noctule´s vital areas located within the WFP,
violates Art.7.b-c and 8.1 of CBD. .................................................................................... 23
I.3. Runbeti violates Eurobats and CMS. .............................................................................. 25
I.3.1 Runbeti violates Art.IV.3. of the CMS, and Art.III.PS.2-3 of Eurobats. .................. 27
I.4. Runbeti is in breach of the obligation not to cause TEH. ............................................... 28
I.4.1 Runbeti violates the TEH principle with the WFP. ................................................... 30
II.Alducra´s 2019-Statute complies with the ARTA. .................................................................. 32
II.1 Alducra´s 20%-tax on sales of tapagium is consistent with Art.VIII.2 first-sentence of the
ARTA. ..................................................................................................................................... 33
II.1.1 Alducra´s 20%-tax is consistent with Art.VIII.2 of the ARTA. .............................. 34
II.2 Alducra´s labeling-requirement is consistent with Art.VIII.4 of the ARTA. ................... 36
II.2.1 Alducra´s labeling-requirement is consistent with Art.VIII:4 of the ARTA. .......... 38
II.3. Alducra´s 2019-Statute falls within Art.X of the ARTA. ................................................ 39
II.3.1 Subparagraphs .......................................................................................................... 40
II.3.2 The chapeau of Art.X. .............................................................................................. 41
II.3.3 Alducra´s 2019-Statute is consistent with Art.X of the ARTA. .............................. 42
CONCLUSION ............................................................................................................................ 45
INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
Agreement on the Conservation of Populations of European Bats, London, 4th December 199129
Convention on Migratory Species, Resolution 7.5 UNEP/CMS/COP12/Doc.21.1.10 ................. 29
Convention on the Conservation of Migratory Species of Wild Animals, Resolution 2.6,
Implementation of Articles IV And V of the Convention, UN (14th October 1988). ............... 28
Convention on the Conservation of Migratory Species of Wild Animals, UN 28395 (8th October
1991). ......................................................................................................................................... 27
Convention on the Conservation of Migratory Species of Wild Animals, UNEP/CMS/Resolution
11.27 (9th November 2014) ...................................................................................................... 29
Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, UN Doc.
A/RES/56/82 (2001), 56 UN GAOR Supp (No. 49) at 498, Supp. (No. 10) A/56/10 (V.E.1) . 33
Eurobats,.MoP8, Resolution 8.4 .................................................................................................... 30
International Law Commission, Commentary on Arts. 31 and 32 (1966). ................................... 28
International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1 .......................... 35
The Convention on Biological Diversity of 5th June 1992 (1760 UNTS 69) ................... 18, 19, 24
Vienna Convention on the Law of treaties United Nations, Treaty Series, vol. 1155, p. 331 ...... 28
JUDICIAL DECISIONS
Appellate Body Report, Brazil — Measures Affecting Imports of Retreaded Tyres, Animals and
Animal Products, WT/DS332/AB/R, adopted on 17th December 2007. .................................. 44
Appellate Body Report, Canada — Certain Measures Concerning Periodicals, WT/DS31/AB/R,
adopted on 30th July 1997. ........................................................................................................ 38
Appellate Body Report, China — Measures Related to the Exportation of Rare Earths, Tungsten
and Molybdenum, WT/DS431/AB/R, adopted on 29th August 2014. ...................................... 45
Appellate Body Report, European Communities — Measures Affecting Asbestos and Products
Containing Asbestos, WT/DS135/AB/R, adopted on 12th March 2001. ................ 38, 41, 42, 44
Appellate Body Report, European Communities — Measures Prohibiting the Importation and
Marketing of Seal Products, WT/DS401/AB/R, adopted on 16th June 2014. .......................... 46
Appellate Body Report, Japan – Taxes on Alcoholic Beverages II, WT/DS8/AB/R, adopted on 1st
November 1996. ........................................................................................................................ 37
Appellate Body Report, Korea — Measures Affecting Imports of Fresh, Chilled and Frozen Beef
WT/DS31/AB/R, adopted on 30th July 1997. ........................................................................... 40
Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp
Products, WT/DS58/AB/R, adopted on 6th November 1998. ............................................. 45, 46
Appellate Body Report, United States — Measures Concerning the Importation, Marketing, and
Sale of Tuna and Tuna Products, WT/DS381/AB/R, adopted on 14th December 2018. .......... 46
Appellate Body Report, United States — Standards for Reformulated and Conventional Gasoline,
WT/DS52/AB/R, adopted on 20th July 1996. ..................................................................... 44, 45
Appellate Body, European Communities — Regime for the Importation, Sale and Distribution of
Bananas, WT/DS27/AB/R, adopted on 25th September 1997. ................................................. 41
Appellate Body, United States — Tax Treatment for "Foreign Sales Corporations",
WT/DS108/AB/R, adopted on 29th January 2002 .................................................................... 41
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua),
Compensation, Judgment, ICJ Reports 2018, p. 15 .................................................................. 33
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports ....................................................................................................................................... 18
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1.C.J. Reports 1996, p. 226
............................................................................................................................................. 32, 34
Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and the Import of
Finished Leather, WT/DS155/R, adopted on 16th February 1996. ........................................... 37
Panel Report, China – Anti-Dumping and Countervailing Duties on Certain Automobiles from the
United States, WT/DS440/R, adopted on 18th June 2014. ....................................................... 37
Panel Report, India — Certain Measures Relating to Solar Cells and Solar Modules, WT/DS456/R,
adopted on 14th October 2016. ................................................................................................. 40
Panel Report, Japan — Measures Affecting Consumer Photographic Film and Paper, WT/DS44/R,
adopted on 22nd April 1998 ...................................................................................................... 42
Panel Report, United States — Certain Measures Relating to the Renewable Energy Sector ,
WT/DS510/R, adopted on 29th June 2019 .......................................................................... 41, 42
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, p. 14 . 19,
33
Rio Declaration,UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874 (1992) ............................... 19, 32
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, ICJ Reports
201 ............................................................................................................................................. 20
ESSAYS, ARTICLES AND JOURNALS
ALEXY ROBERT, TEORÍA DE LOS DERECHOS FUNDAMENTALES (2ND). (2017). ............................. 27
Allaby Michael, Dictionary of Environment & Conservation, OXFORD UNIVERSITY PRESS (2017).
................................................................................................................................................... 29
Arnett Edward & May Roel, Mitigating Wind Energy Impacts on Wildlife: Approaches for
Multiple Taxa. (2017). ............................................................................................................... 29
C RAFFENSPERGER & J TICKNER, PROTECTING PUBLIC HEALTH AND THE ENVIRONMENT:
IMPLEMENTING THE PRECAUTIONARY PRINCIPLE (1999). .......................................................... 18
Correia Ricardo et al, Bat Monitoring System for Wind Farms, IFAC Proceedings
Volumes,Volume 46, Issue 28, 2013, Pages 110-115. .............................................................. 30
GHANEM S.J & VOIGT C.C, Increasing Awareness of Ecosystem Services Provided by Bats (2012);
............................................................................................................................................. 33, 34
GONZALO GONZÁLES, Medidas de Mitigación de Impactos en Aves Silvestres y Murciélagos
(2014). ................................................................................................................................. 21, 22
GYÖRGY SZENASI, THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE IN THE DEVELOPMENT OF
INTERNATIONAL ENVIRONMENTAL LAW (1999). ....................................................................... 18
Hannah Kalsman, Willingness to Pay for Bat-Friendly Tequila, (May, 2020), University of
Nevada, Reno. ........................................................................................................................... 38
Hutson, Anthony, Marnell, Ferdia, Torv, Triinu, A guide to the implementation of the Agreement
on the Conservation of Populations of European Bats (EUROBATS) (March 2015). ............. 28
Jervan Marte, The Prohibition of Transboundary Environmental Harm. An Analysis of the
Contribution of the International Court of Justice to the Development of the No-Harm Rule
(25th August, 2014) PluriCourts Research Paper No.14-17 ..................................................... 31
Justin G Boyles et al., Economic Importance of Bats in Agriculture, Conversation (2011). .. 33, 34
KUNZ T.H ET AL., Ecosystem Services Provided by Bats (2011). .................................................. 33
L. Rodriguez et al, Guidelines for Consideration of Bats in Wind Farm Projects Revision 2014,
Eurobats, Publication No.6 ........................................................................................................ 29
Lina Tran, La mortalidad de Murcielagos es Insostenible, según una investigación global, (6 July
2016), Mongabay Latam. .................................................................................................... 33, 34
Marco Riccucci and Benedetto Lanza, Bat and Insec Pest Control: a Review, (7th October 2018),
Vespertilio 17: 161–169, 2014 ISSN 1213-6123. ..................................................................... 33
REMIRO BROTÓNS ET AL., VIENNA CONVENTION ON THE LAW OF TREATIES: A COMMENTARY
(2010). ....................................................................................................................................... 27
Secretariat of the Convention on Biological Diversity., CBD Technical Series No. 26, Biodiversity
in Impact Assessment (2006). .............................................................................................. 19, 24
Silva, C., Cabral, J. A., Hughes, S. J., & Santos, M. (2017). A modelling framework to predict bat
activity patterns on wind farms: An outline of possible applications on mountain ridges of North
Portugal. Science of The Total Environment, 581-582, 337–349.
doi:10.1016/j.scitotenv.2016.12.135 ......................................................................................... 29
Trail Smelter case, Reports of International Arbitral Awards (16th April 1938), Volume III pp.
1905-1982. ........................................................................................................................... 31, 32
VALVERDE MAX, GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (1996). ....... 19
TABLE OF ABBREVIATIONS
ABBREVIATIONS
FULL MEANING
2019-Statute Alducra's Statute to Institute Specific Requirements Related to the
Import and Sale of tapagium in Alducra
AB WTO Appellate Body
ALDUCRA The Federal States of Alducra
ART. Article
ARTA Architerpo Regional Trade Agreement
Arts. Articles
CBD Convention on Biological Diversity
CITES Convention on International Trade in Endangered Species of Wild
Fauna and Flora
CMS Convention of Migratory Species of Wild Animals
COP Conference of the Parties Resolutions
DSB Dispute Settlement Body of the World Trade Organization
EIA Environmental Impact Assessment
EPA Environmental Protection Agency
EUROBATS Agreement on the Conservation of Populations of European Bats.
GATT General Agreement on Tariffs and Trade 1994
ICJ International Court of Justice
ICJ STATUTE Statute of the International Court of Justice
ILC International Law Commission
NDC Nationally Determined Contribution
NGO Non-Governmental Organization
P Paragraph
PECO Pinwheel Energy Co
PP Precautionary Principle.
PR WTO Panel Report
PS. Paragraphs
RIO DECLARATION Rio Declaration on Environment and Development
RIO+20 United Nations Conference on Sustainable Development, Rio+20
RUNBETI The Republic of Runbeti
STOCKHOLM
CONFERENCE
The 1972 United Nations Conference on the Human Environment at
Stockholm
TEH Transboundary Environmental Harm
UN United Nations
UNFCCC United Nations. Framework Convention on Climate Change
VCLT Vienna Convention on the Law of Treaties
WF Wind farms
WFP Wind Farm Project
WTO World Trade Organization
QUESTIONS PRESENTED
I. Does Runbeti breach any obligation or principle of international law by planning, constructing,
and implementing the WFP?
II. Does Alducra breach some international law provisions, especially the ARTA, with its trade
policies regarding the import and sale of tapagium?
STATEMENT OF JURISDICTION
Pursuant Art.40 of the ICJ Statute, Alducra, and Runbeti have submitted before the ICJ
their differences concerning Questions Relating to Protection of Bats and International Trade
Measures, transmitting a copy to the registrar of the ICJ on 24th July 2020.
On 31st July 2020, the registrar of the ICJ addressed notification to the parties. Therefore,
it is understood that Alducra and Runbeti have accepted the ICJ's jurisdiction, in conformity with
Art.36 of the ICJ Statute.
STATEMENT OF THE FACTS
Background of the parties
Alducra and Runbeti are neighboring sovereign States located on the continent of
Architerpo. Both economies rely on agriculture, especially in agave farming and the production of
tapagium, an agave spirit.
Both are members of the UN and parties of the ICJ Statute, VCLT, CBD, CMS, Eurobats,
CITES, and all the documents adopted in the Stockholm-Conference framework Rio-Declaration.
Runbeti is a WTO member State. In contrast, Alducra withdrew from the WTO in 2004 for political
reasons.
In 2000 the States of the Architerpo signed a regional trade agreement called the ARTA.
Runbeti's WFP
In May 2016, Runbeti submitted its NDC under the Paris Agreement, including a subsidy
program for alternative energy projects incorporating a large multi-phase WFP.
The WFP consists of four construction phases between 2016-2026. The first phase includes
constructing 150 2.0 MW wind turbines built on a PECO's large land, located along a portion of
the border between Runbeti and Alducra.
Part of the property is a known migration route for the Royal-Noctule and includes several
critical feedings/roosting/and commuting routes for the mentioned bat. The first phase's
construction began and ended in 2016 and was constructed 5 km from the border.
Chiroptera-Crusaders, a regional bat conservation group, expressed its concerns to Alducra
and Runbeti about the WFP's harmful effects on the Royal-Noctule. It also noted that Runbeti did
not implement mitigation measures to protect bats in the construction process.
Runbeti allowed the Chiroptera-Crusaders to monitor the impact of the WFP on the bats.
Between 2017-2018, they monitored the project finding 237 Royal-Noctules killed in the first year
and 356 in the second. For this reason, Alducra and the Chiroptera-Crusaders requested Runbeti
multiple times to cease the WFP or to implement mitigation measures, to which Runbeti refused
and decided to prohibit the further entrance of the Chiroptera-Crusaders.
Alducra's Trade Policy
In 2015 Alducra developed a domestic regulation to protect the Long-Nose, which feeds
on the agave plant's flowers grown in Alducran and Runbetian fields. Agave is the primary source
of tapagium, a traditional spirit produced in only both countries. Alducra's regulation request
farmers to use bat-safe farming practices, which requires farmers not to harvest 5% of the agave
plants until they flower, to ensure that the Long-Nose has a food source. This regulation became
mandatory for all Agave producers in Alducra by the end of 2015.
In 2019 Alducra passed the 2019-Statute to promote bat-safe practices. The measure
imposed two-requirements, first, a 20%-tax on the sale of tapagium that is not produced with bat-
safe farming methods, and second, a labeling-requirement applied to tapagium bottles traded in
Alducra, it allows consumers to identify if the bottle was produced in accordance or not with the
bat-safe program.
Controversy
On 4th January 2019, Alducra informed Runbeti that it was breaching various provisions of
international law, including the CBD, CMS, and Eurobats, and that it should cease the operation
of the WFP immediately. In response, Runbeti denied and alleged that Alducra's trade policy
favored and gave an advantage to domestic producers in contravention to the ARTA.
On 24th July 2020, after the diplomatic communications failed to reach an agreement, the
two States decided to submit their differences before the ICJ.
SUMMARY OF THE ARGUMENTS
I. Runbeti's WFP violates international law and causes TEH to Alducra
Runbeti consistently violates the precautionary principle (PP), CBD, CMS, and Eurobats
with the WFP for the absence of conservative and favorable measures regarding the Royal-Noctule
protection.
Additionally, Runbeti is violating the TEH principle as it supposes a human activity that
causes significant damage to the environment/agriculture/economy of Alducra.
II. Alducra's 2019-Statute is consistent with the ARTA.
Alducra's 2019-Statute is not breaching the National-Treatment obligation enshrined in the
ARTA since the tapagium produced with bat-safe and not bat-safe practices are not "like".
In the unlikely case that the honorable Court found that the 2019-Statute is breaching the
ARTA, this measure is justified by the exception enshrined in its Art.X as it is necessary to protect
the life and health of the Long-Nose and conserve it as an exhaustible natural resource.
Furthermore, the measure is not arbitrarily or unjustifiably discriminating between the products at
issue, neither a disguised international trade restriction.
ARGUMENTS
I. Runbeti's WFP violates International Law.
I.1. Runbeti's planning/operation of the WFP and omission to apply precautionary/mitigation
measures violates the CBD and the Precautionary Principle (PP).
The CBD establishes numerous obligations related to protecting the environment and
biodiversity to be interpreted in the light of its preamble,1 reaffirming the duty to enact precaution
measures as a principle of law.2 Art.14.a provides that EIA procedures developed in the framework
of projects that are likely to have significant adverse effects on biological diversity must have the
objective of avoiding/minimize such effects.3
Further, Art.14.b obliges States to "introduce appropriate arrangements to ensure that the
environmental consequences of its programs that are likely to have significant adverse impacts on
biological diversity are duly taken into account". 4 Art.14.d obliges States to initiate measures to
prevent or minimize harm and notify the potentially affected States if imminent or grave danger
or damage to biological diversity within its jurisdiction.5
1 UN, CBD (1992).
2 ICJ, Legal Consequences for States (1970).P-53.
3 UN, supra-note 1.Art.14.a.
4 Id.Art.14.b.
5 Id.Art.14.d.
Furthermore, the CBD's preamble provides that the lack of sufficient scientific evidence is
not an excuse to avoid implementing mitigation measures when there is an environmental threat.6
The above reaffirms parties' duty to enact precautionary measures when an activity
represents a threat or damage to the CBD protected values, even when the cause-effect relationship
lacks full scientific-certainty. 7 Indeed, the Rio-Declaration provides that States must apply the PP
in a wide manner in relation to its capabilities.8 Moreover, since the protection of the environment
constitutes a common interest of humanity, its principles are binding to all States.9
The ICJ considered that a precautionary approach might be relevant in interpreting and
applying international law.10 Additionally, the ICJ judge Trindade considered that even though the
ICJ hesitates to apply the PP, there is an increase of experts proving the need for precautionary
measures despite the lack of scientific proof.11
Moreover, Decision VIII-28 adopted guidelines to develop appropriate EIAs, that should
end in a decision-making process to refuse or authorize the project, including mitigation measures
to protect biodiversity. It also establishes that the precautionary approach should be applied in the
6 Id.Preamble.
7 C RAFFENSPERGER & J TICKNER, PROTECTING PUBLIC HEALTH AND THE ENVIRONMENT: IMPLEMENTING THE
PRECAUTIONARY PRINCIPLE (1999).
8 UN, Rio-Declaration (1992).Principle 15.
9 GYÖRGY SZENASI, THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE. (1999).
10 ICJ, Pulp-Mills (2010).P-164.
11 ICJ, Whaling in the Antarctic (2014).P-73.
decision-making at the end of an EIA, in scientific-uncertainty cases, when there is a risk of
significant harm to biodiversity.12
I.1.1. Runbeti is bound to comply with the PP.
Runbeti is bound to comply with the PP, since it fully attended and participated in different
declarations and conventions where this principle is contained.13 Besides, Runbeti expressed
through diplomatic notes the importance of applying the PP in its environmental legislation.14
Moreover, CBD's preamble informs the conventions' obligations, including the PP.15
In that order, CBD's obligations demand the application of precautionary/mitigation
measures when developing a certain activity may generate that risk of severe or irreversible loss
of biodiversity, even in the absence of scientific-evidence.
I.1.2 Runbeti did not adopt precautionary measures in planning the WFP, violating Art.14-a-b of
CBD and the PP.
Runbeti violated the CBD since it failed in considering the effects of the WFP to implement
conservation/mitigation measures as a precautionary behavior to protect the vulnerable species of
bats. In the planning phase of the WFP, Runbeti was provided with knowledge, from its EIA16 and
12 Secretariat of the Convention on Biological Diversity., CBD Technical Series No.26.
13 Case.P-10
14 Id.P-23
15 VALVERDE MAX, GENERAL PRINCIPLES OF INTERNATIONAL ENVIROMENTAL LAW (1996).
16 Case.P-19
the concerns provided by the Chiroptera-Crusaders,17 that the project could be endangering the life
and health of the Royal-Noctules, since it could cause collisions, barotrauma, et al.18
Runbeti was obliged under Art.14.a of CBD to carry out an EIA to identify the potential
effects of the WFP. According to Art.14.b, it also had to ensure no adverse effects for bats would
come after it. In contrast, Runbeti ignored the potential effects of the WFP that could have been
avoided in the construction phase by applying the appropriate precautionary/mitigation measures.
Some measures could have been modifying the plan/size/high/speed of the Wind
Turbines,19 and/or research about alternatives to prevent WFP to generate
collision/barotrauma/and others.20
Consequently, Runbeti ignored the critical and irreversible risk of biodiversity loss that the
WFP could generate and refused to implement any measures in the framework of precautionary
behavior, in violation of the CBD and the PP.
17 Id.P-18
18 Id.
19 GONZALO GONZÁLES, Medidas de Mitigación de Impactos (2014).
20 As the Colombian environmental authority did when a high numbers of death migratory flamencos were found near
an electric fence.See:http://corpoguajira.gov.co/wp/wp-content/uploads/2018/03/AUTO-No.-0047-DEL-26-DE-
ENERO-DE-2018.pdf
I.1.3 Runbeti did not adopt conservation/mitigation measures after the operation of the WFP,
violating Art.14.d of the CBD and the PP.
The Chiroptera-Crusaders found 237 Royal-Noctule death in 2017 and 356 in 2018 21 near
the WFP. This suggests that the WFP is the cause of such imminent danger and damage, as it
shows that deaths have increased exponentially since the beginning of the operations. Even though
there is no factual evidence that proves that the WFP is the only cause of the deaths, it represents
a risk and danger. Thus, in applying the PP, Runbeti must apply mitigation measures to minimize
such danger.
Since Runbeti knew the imminent and grave damage of the Royal-Noctules, under Art.14.d
of the CBD, it had to initiate urgent measures to minimize such damage. Moreover, since the WFP
became an activity with a high risk of loss of biological diversity, according to the preamble of the
CBD and the PP, Runbeti had to immediately adopt mitigation measures, even when the cause-
effect relationship lacks full scientific-certainty.
Such measures could consist of ceasing the WFP while researching the effects22/monitoring
the zones and looking for persistent risks of harm23/modifying the wind turbines' speed/develop
post-construction assessments/monitor the behavior of bats/deactivating the turbines during the
highest migratory activity.24
21 Case.P-18
22 As the Colombian environmental authority did when a high numbers of death migratory flamencos were found near
an electric fence.See:http://corpoguajira.gov.co/wp/wp-content/uploads/2018/03/AUTO-No.-0047-DEL-26-DE-
ENERO-DE-2018.pdf
23 Id.
24 GONZÁLES, supra-note 19.
Although there are measures that could prevent this damage, Runbeti decides to ignore the
risk of the critical and irreversible loss of biodiversity caused by the WFP. Consequently, it refuses
to implement mitigation measures25 to minimize that current harm, in violation of Art.14.d of the
CBD and the PP.
In conclusion, Runbeti violates the CBD, since it fails to impose
precautionary/conservation measures in planning the WFP and mitigation measures after the
project's operation, as a precautionary behavior to protect this vulnerable species of bats.
I.2. Runbeti's omission to monitor the effects and manage the impacts of the WFP violates the
CBD.
The CBD establishes monitoring obligations regarding the activities that have or are likely
to have significant adverse impacts on biological conservation. First, Art.7.b. provides that States
shall monitor biological components identified by Annex-I, paying particular attention to those
requiring urgent conservation measures.26 Second, Art.7.c. obliges States to identify activities that
have or are likely to have significant adverse impacts on the conservation of biological diversity
and monitor their effects.27 Third, Art. 8.l. establishes that where a significant adverse effect on
biological diversity has been determined under the monitoring procedures from Art.7, States must
regulate or manage the relevant processes and categories of activities for biological conservation.28
25 Case.P-20-23.
26 UN, supra-note 1.Art.7.b.
27 Id.Art.7.c.
28 Id.Art.8.1.
The CBD preamble reaffirms the obligations to anticipate/prevent/and attack the causes of
significant reduction or loss of biological diversity and reiterate that it is a States' responsibility.29
Annex-I establishes the obligation to monitoring ecosystems containing large numbers of
endemic species that are migratory and/or have agricultural/economic value.
Moreover, Decision VIII-28 of CBD adopted guidelines to develop appropriate monitoring
procedures. These procedures should focus on those components of biodiversity most likely to
change due to a project. Its results should provide information for review and modify the
environmental management plans to optimize environmental protection at all project stages.30
I.2.1 Runbeti's omission to monitor Royal-Noctule's vital areas located within the WFP, violates
Art.7.b-c and 8.1 of CBD.
The property of the WFP is a known migratory route for the Royal-Noctule, between
Runbeti and Alducra. The property also includes critical feeding/roosting/commuting routes for
migratory bats.31 Moreover, the Royal-Noctule and the Long-Nosed are ecologically crucial as
pollination/seed-dispersal/insect-control factors, among other things.32 Therefore they represent
economic value to Runbeti and Alducra.33 Thus, the monitoring obligations proceed according to
CBD's Annex-I.
29 Id.Preamble.
30 Secretariat of the Convention on Biological Diversity., supra-note 12.
31 Case.P-17.
32 Id.
33 Id.P-15.
After Runbeti declined to adopt mitigation measures to protect the Royal-Noctule,
Chiroptera-Crusaders monitored the project construction area to determine the WFPs' impact34
until Runbeti forbade their entrance in 2019.35
Runbeti had the obligation under Art.7.b. of monitoring the impact of the WFP on
migratory species of bats. Additionally, under Art.7.c. Runbeti must continue monitoring the
effects of the WFP on bats as an activity that has a potential negative impact on them.
Under Art.8.l, since a significant adverse effect on bats was determined from the
monitoring performed by the Chiroptera-Crusaders, Runbeti must regulate the WFP for conserving
bats. By contrast, Runbeti forbids the monitoring of the WFP. Moreover, even with the results of
the monitoring that the Chiroptera-Crusaders could perform for two years, Runbeti did not take
any management or regulation over the WFP for bats conservation.
Additionally, regarding the WFP planning phase, Runbeti declined to take any
conservation management of the WFP.36 Furthermore, after its operation, Runbeti showed its
intention not to do so; Indeed, in diplomatic statements, Runbeti admitted that while the bat
mortalities are unfortunate, the instruments that encourage to protect them are non-binding37 and
emphasized it had more pressing issues to address before trying to pass legislation to protect bats
in Runbeti.38
34 Id.P-20.
35 Id.P-21-24.
36 Id.
37 Id.P-23
38 Id.P-25
In conclusion, Runbeti violates the CBD as it fails to continue monitoring the adverse
effects of the WFP over the vital areas of endemic and vulnerable species of bats and consequently
fails to adopt appropriate management of the WFP for their conservation.
I.3. Runbeti violates Eurobats and CMS.
The CMS is the conceptual and legal framework of Eurobats. Art.II.C of the CMS provides
that States shall celebrate agreements to protect the species listed in Appendix II.39 For this reason,
States celebrated Eurobats attending to the principles and guidelines settled in Art.IV-V of the
CMS. Therefore, when violating any Eurobats provisions, CMS obligations are necessarily
breached.40
Equally important is to address the COP binding nature of conventional bodies. According
to the VCLT, it qualifies as an instrument made in connection with the conclusion of the
CMS/Eurobats and subsequent practice in the application of those treaties".41 Also, the ICJ has
recognized it as customary international law.42 Hence, conventional dispositions and the COP
constitute legal standards43 to interpret CMS and Eurobats provisions. Henceforth, CMS
39 UN, CMS (1983).
40 UN, VCLT (1969); REMIRO BROTÓNS ET AL., VIENNA CONVENTION ON THE LAW OF TREATIES: A COMMENTARY
(2010).
41 UN, supra-note 40.
42 ILC, Commentary on Arts.31- 32 (1966).
43 ALEXY ROBERT, TEORÍA DE LOS DERECHOS FUNDAMENTALES. (2017).
acknowledges the importance of considering "the full scope of conservation measures envisaged
by the convention".44
Under the CMS, parties shall identify: in which areas the migratory species could be
affected by wind turbines45; evaluate their negative impacts to the environment before permitting
them46; and "undertake appropriate survey and monitoring both before and after deployment of
renewable energy technologies to identify impacts on migratory species and their habitats in the
short and long-term, as well as to evaluate mitigation measures".47 Regarding wind energies, the
CMS establishes that parties must give special attention to bats given the increased death risk
resulting from collisions with wind turbines.48
Eurobats has the objective to guide the conservation of the bats' population.49 Moreover,
the resolutions relating to this agreement "are adopted to help expand on, interpret, and provide
advice to Parties on the implementation of these fundamental obligations".50
Art.III:2 obliges to identify areas under which are important for conservation, especially
protecting feeding areas from "disturbance or damages". Likewise, Art.III:3 provides that when
States must decide which habitats to protect, bat ones shall be adequately considered.51
44 UN, CMS-resolution 2.6 (1988).
45 UN, CMS-resolution 7.5. (2017).
46 Id.
47 UN, CMS-resolution 11.27. (2014).
48 Id.
49 Anthony Hutson et Al., A Guide for the Implementation of EUROBATS (2015).
50 Id.
51 EUROBATS, (1991).
Eurobats Resolution 8.4 (in the context of Art.III) provides that States should intervene
considering "the impacts that onshore and offshore wind turbines have on bat populations on
different geographical scales". Also, if a negative impact on bats is predicted in some areas, it
would not be recommended for wind turbines.52
I.3.1 Runbeti violates Art.IV.3. of the CMS, and Art.III.PS.2-3 of Eurobats.
Runbeti violates the CMS and Eurobats when planning/developing the first phase of the
WFP located on the route of migration/feeding/roosting areas of Royal-Noctule.53 When
implementing the WFP, Runbeti ignored the particularities of the Royal-Noctules'
anatomy/habitat/and current vulnerability conditions.54Besides the possible benefits of the
transition to sustainable energy, Runbeti did not consider the possible harm to biodiversity.55
As reported by the IUCN, vulnerable species are likely to move into the endangered
category when the causal factors continue to operate.56 Indeed, the Royal-Noctule is listed in
CITES Appendix II l(likely to be threatened). The WFP infrastructure causes disturbance or
damage as turbines vibrations/noise/lighting disturb their foraging and commuting activity,
52 EUROBATS-RESOLUTION 8.4, (2018).
53 Case.P-17.
54 Id.P-14.
55 Arnett Edward & May Roel, Mitigating Wind Energy Impacts. (2017).
56 Allaby Michael, Dictionary of Environment & Conservation, OXFORD UNIVERSITY PRESS (2017).
roosting, and hibernation.57 Undeniably, there is plenty of evidence on bat disturbance and
mortality due to wind turbines.58
Although the disturbed land is vital for feeding/roosting/and migration,59 Runbeti initiated
the WFP. Even under the risk for the Royale-Noctules' conservation, the State has not taken any
appropriate survey and monitoring. On the contrary, since 2019, the Chiroptera-Crusaders were
denied access to the WFP,60 leaving this vulnerable species at the expense of a government
unwilling to conserve it.
In conclusion, the harm inflicted by Runbeti to the Royal-Noctule habitat and population is
a clear violation of CMS and Eurobats.
I.4. Runbeti is in breach of the obligation not to cause TEH.
The TEH is a general principle of international environmental law enshrined in numerous
treaties and conventions. It also has been recognized as customary international law, and integrates
the so-called Corpus of international law related to the environment, making it a duty for States.61
According to Art.2 of the Rio-Declaration, States have the sovereign power to exploit natural
resources within their territory following their environmental and development policies. However,
57 EUROBATS, Publication No.6 (2014).
58 Correia Ricardo et al., Bat Monitoring System for Wind Farms, 2013.
59 Case.P-17.
60 Case.P-24.
61 ICJ, Nuclear Weapons, (1996).P-29.
the responsibility to ensure that this exploitation and its consequences do not extend beyond their
jurisdiction, and they cause no harm to other States.62
In Trail-Smelter, the tribunal concluded that a State must ensure that its activities will not
adversely affect another State in the present context. 63
A test of four-steps analysis must be taken to declare the violation of this principle: First,
the damage should be the result of human activity, second, it should be a consequence of human
activity, third, there must be an effect that transcends national borders and, fourth, the damage
exceeds a certain level of severity to exercise legal actions.64
According to the ICJ, the breach of the TEH principle includes transboundary economic
damage to the citizens/their property/65agriculture/and the environment66 within the concept of
ecosystem-services.67
According to the ICJ, the term "exceeds a certain level of severity" involves "significant
damage to the environment,"68 which the ILC clarified as "something more than detectable".69
62 UN, supra-note 7.Princple 2.
63 UN, Trail-Smelter (1941).P-1965.
64 MARTE JERVAN, The Prohibition of Transboundary Environmental Harm. (2014).
65 UN, supra-note 65.P-1965.
66 ICJ, Certain Activities by Nicaragua (2018).P-42.
67 “Ecosystem services are the direct and indirect contributions of ecosystems to human well-being”.
See:https://biodiversity.europa.eu/topics/ecosystem-servicesgment.
68 ICJ, supra-note 10.P-101.
69 ILC, Draft articles on Prevention of Transboundary Harm. (2001).
Also, when assessing the damage caused to the environment, it must be taken into account the
damage to the environment as a whole and the damage of its individual components.70
I.4.1 Runbeti violates the TEH principle with the WFP.
Runbeti is breaching the TEH principle as it has caused environmental damage to Alducra
with the construction of the WFP. It disturbs the migratory route of the Royal-Noctule,71 which
has left a 50% increase in the death rate of this species from one year to the other,72 causing damage
to the environment as a whole, its components and to Alducra's crops and its citizens.
The Royal-Noctule, protected by international conventions,73 has a feeding base on
insects,74 scientific-studies describe them as natural regulators of pests in different crops.75 Thus,
the loss of these individuals would cause two types of damages. Firstly, damages to Alducra's
ecosystem-services76 because the Royal-Noctule is an essential natural pest-regulator that avoids
plant degradation. One of the most critical ecosystem-services of insectivorous bats is the control
of herbivorous arthropods, including pest insects.77 Thus, bats have significant benefits in the
70 ICJ, supra-note 68.
71 Case.P-17.
72 Id.P-21.
73 Id.P-14.
74 Id.
75 Justin G Boyles et al., Economic Importance of Bats in Agriculture (2011).
76 ICJ, supra-note 64.
77 GHANEM S.J & VOIGT C.C, Increasing Awareness of Ecosystem Services Provided by Bats (2012); KUNZ T.H ET
AL., Ecosystem Services Provided by Bats (2011).
ecosystem balance and severe damage to the ecosystem-services results when the bats are harm
and killed.78
Second, pests, such as anthropoids, destroy up to 26% of the annual production of crops
worldwide, for a value of over 470 billion USD.79 One of the most critical ecosystem services of
insectivorous bats is the control of herbivorous arthropods, including pest insects.80 Many insects
are of great economic importance as pests of crops, and most are active at night dusk, like bats.81
Accordingly, bats have significant economic benefits in insect pest-controls, and severe
economic damage results from the erosion of the ecosystem services and biodiversity when bats
are injured and killed.82 Economic damage would be caused to farmers due to unexpected expenses
on pesticides, which will imply a tremendous economic loss estimated at approximately 3.7 billion
USD per year.83
Hence, applying the Schachter-test, the WFP is first, a human activity attributable to the
State. 84 Second, according to recent scientific studies, each wind turbine may kill up to 12 bats
78 Lina Tran, La mortalidad de Muciélagos es Insostenible (2016).
79 Marco Riccucci, Bats and Insect Pest Control, 2018.
80 S.J AND C.C, supra-note 79.
81 POLLINI A, Entomologia Applicata. (2013).
82 Lina Tran, supra-note 80.
83 Boyles et al., supra-note 77.
84According to the Draft Articles on State Responsibility a Conduct is Attributable to the State when is
Ordered/Directed by it. See:Art.8.
per-year85 due to barotrauma.86 Thus, the WFP directly causes Royal-Noctule deaths. Third,
damages transcend borders as bats die while flying through the WFP87 in their migration routes,
inhibiting farmers from the natural pest-control and disrupting environmental services and
ecosystems.
Fourth, damages to Alducra's environment/agriculture/and economy are more than just
detectable. Alducra lost a considerable number of internationally protected species, the equilibrium
of the ecosystem is significantly disrupted, and farmers suffer high economic losses.
In conclusion, the damage caused by the WFP constructed by Runbeti supposes a human
activity that causes significant damage to Alducra and therefore is violating the TEH principle.
II.Alducra's 2019-Statute complies with the ARTA.
The 2019-Statue scope of application is the tapagium produced with and without bat-safe
farming practices and not Alducras and Runbetis products.
This statute does not violate any ARTA provision since the products at issue are not like
products. Hence, they are not in a relationship of competition. However, in the unlikely case that
they are considered as like, Runbeti submits that Art.X of the ARTA justifies this inconsistency.
85 Chantelle Lafleur & Let´s Talk Science, How Do Wind Farms Affects Birds and Bats? (2019).
86 “Barotrauma describes injuries that occur when a bat (or other animal) encounters sudden and extreme changes in
atmospheric pressure”. See:https://www.nrel.gov/docs/fy14osti/60427.pdf 87 Case.P-14.
Further, under the ARTA, 88 the decisions of the AB and the Panel of the WTO are auxiliary
sources of interpretation to the Arts of this treaty.89
II.1 Alducra's 20%-tax on sales of tapagium is consistent with Art.VIII.2 first-sentence of the
ARTA.
The Panel and AB decisions of the WTO are a useful tool of interpretation since Art.VIII.2
of ARTA is an exact copy of Art.III:2 of the GATT.90
Art.VIII.2 first-sentence prohibits discrimination between imported and domestic
products,91 stating that products imported by a contracting State another contracting State shall not
be subject either directly or indirectly to internal taxes of any kind in excess of those directly or
indirectly apply to like domestic products.92
The AB has clarified that three-requirements must be fulfilled in order for a measure to
violate this Art: First, it must fall within the scope of the Art., that is to say, a measure must trigger
the obligation to pay an internal tax93 or charge inside the customs territory.94 Second, the products
under consideration must be like products, i.e., that those products are in a relationship of
88 Case.P-9. 89 Id.Art.XV. 90 Id.P-13. 91 AB, Japan-Alcoholic Beverages II (1996).P-16.
92 Case.Art.VIII.2.
93 PR, Argentina-Hides and Leather (2001).P-11.145.
94 PR, China-Autos (US) (2014).P-7.128.
competition.95 The analysis of likeness is based on four factors: the product characteristics, the
end-uses of the products, the consumers' taste and habits96 and, the tariff classification of the
products97.
Third, the tax should be applied in excess of those applied to domestic products.98 The AB
mentioned that the requirements are cumulative in nature. Therefore, if the products at issue are
considered not like, there is no need to assess this requirement. 99
II.1.1 Alducra´s 20%-tax is consistent with Art.VIII.2 of the ARTA.
Alducra's 20%-tax on the sale of tapagium products is not breaching Art.VIII.2 of the
ARTA. Although it is an internal tax applied to the sale of tapagium100 produced without bat-safe
practices, there is not a relationship of competition with the tapagium produced with bat-safe
practices.
This is because the products' extrinsic characteristics are different as the labeling-
requirement that distinguished each tapagium bottle sold in Alducra has a distinctive and eye-
catching color,101 allowing for easier differentiation between the products.
95 AB, supra-note 93.
96 The AB defined this term as: “the extent to which consumers perceive and treat the products as alternative means
of performing particular functions in order to satisfy a particular want or demand”. See:AB, EC-Asbestos.
97 AB, EC-Asbestos (2001).P-101.
98 AB, Canada-Periodicals, (1997).P-23.
99 Id.
100 Case.P-26.
101 Case.Appendix-1.
Likewise, Alducran consumers differentiate their consumption tastes and habits based on
their concern for bats' protection based on recent scientific studies,102 proving that consumers
mostly prefer eco-friendly products.103
A recent study proves that consumers of agave spirits in Mexico, who knew the importance
of bats to the ecosystems, would prefer to buy a product that supported bat-safe practices, and that
even if the price of the bat-safe agave spirit were 5 USD more expensive, consumers would still
prefer it as they understand the importance of these species.104
Alducra has been characterized by its intentions to protect bats, encourage bat-safe
practices105 throughout its territory with national laws, and encourage foreign States to protect
them.106 Thus, consumers in Alducra have knowledge and awareness about the importance of bats
and their relationship with the production of agave spirits.
In conclusion, consumers in Alducra prefer a tapagium made with bat-safe practices over
the others. The likeness analysis comprises a question of whether there is a competitive
relationship between two products in a particular market that considers consumer preferences. 107
Consumers in Alducra prefer bat-safe labeled products because they want to promote bat-safe
102 Hannah Kalsman, Willingness to Pay for Bat-Fiendly Tequila (2020).
103“Eco-friendly literally means earth-friendly or not harmful to the environment”,
See:https://homeguides.sfgate.com/ecofriendly-mean-78718.html
104 HANNAH KALSMAN, supra-note 104.
105 Case.P-26.
106 Id.P-25.
107 HANNAH KALSMAN, supra-note 104.
practices to be applied in the tapagium, and the labeling shows that those practices have been
conducted.
Finally, having demonstrated that the products are not like, there is no need to assess
whether there is taxation "in excess to" in those that do not have bat-safe practices. Accordingly,
the 20%-tax imposed by Alducra on the sale of not bat-safe tapagium does not promote a National-
Treatment, and therefore, it is consistent with the ARTA.
II.2 Alducra's labeling-requirement is consistent with Art.VIII.4 of the ARTA.
Art.VIII:4 is an exact copy of Art.III:4 of the GATT108 ; therefore, it shall be interpreted in
the same manner.
The AB has clarified that for a measure to violate this Art., four-requirements must be
fulfilled: First, the measure at issue must be a law/regulation/or requirement, second, that the
measure affects the sale/offering-for-sale/purchase/and transportation, third, the products at issue
shall be like products and, fourth, the imported products have to be treated less favorable than the
domestic products.109
Regarding the first requirement, the Panel concluded that the term laws/regulation refers to
legally enforceable conduct conditions under the domestic legal system.110 As to the second
108 Case.P-13.
109 AB, Korea-Various Measures on Beef (2001).P-133.
110 PR, India-Solar Cells (2016).P-7.310.
requirement, the AB has considered the measure's intention to determine the scope of 'affection'
over the sale/offering for sale/purchase/transportation/distribution/or use of imported products.111
Although the word 'affecting' has a broad scope of application, it is reduced to the specific
transactions of internal sale/offering for sale/purchase/and the activities of transportation and
use.112 Additionally, the AB has concluded that to analyze whether a measure affects the previous,
it should be considered "whether such measure has an impact on the conditions of competition
between domestic and imported like products".113
Concerning the third requirement, the AB clarified that "The concept of "likeness" is a
relative one that evokes the image of an accordion. The accordion of "likeness" stretches and
squeezes in different places as different provisions of the WTO Agreements are applied".114 The
AB also mentioned that the likeness analysis embedded in Art.III:2 is narrower than under
Art.III:4, as Art.III:2 contains two separate sentences, each imposing distinct obligations. By
contrast, Art.III:4 applies only to 'like products' and does not include a provision equivalent to the
second sentence of Art.III:2.115
Finally, the AB noted that the analysis of less favorable treatment (fourth requirement)
involves: first, if the detrimental impact of the products generates discrimination against the
111 AB, EC-Bananas III (1997).P-211.
112 AB, US-FSC (2002).P-208.
113 PR, US-Renewable Energy (2019). P-7.161.
114 AB, supra-note 99.
115 Id.
imported products116 and, second if the measure modifies the competition conditions causing the
detriment of imported products in relation with the domestic products.117
The DSB held that the evidence of actual market effects is unnecessary to make out a case
of less favorable treatment. It considered that the implications of a measure for competitive
conditions are explicit from the relevant provisions' text/design/and structure.118
II.2.1 Alducra's labeling-requirement is consistent with Art.VIII:4 of the ARTA.
Alducra's 2019-Statute is consistent with Art.VIII:4 for the following: First, it is a
regulation as it was passed by domestic legislation.119 Second, it does not affect the internal sale
of tapagium as the labeling-requirement does not have a specific effect in the transactions of
internal sale/offering for sale/purchase/transportation/distribution/or use since this measure is
purely informative. The labeling-requirement does not constitute a burden on
sellers/customers/transporters/and distributors of Runbeti's tapagium that hinder those
transactions' performance.120
Additionally, the label does not impact the conditions of competition between domestic
and imported like products since the measure was applied on all tapagium sold in Alducra,
including imported and domestic tapagium. Besides, the label distinguishes the bat-safe tapagium
and not bat-safe.
116 Id.
117 PR, Japan-Film (1998).P-10.379.
118 PR, supra-note 115.
119 Case.P-5-26.
120 Id.
Third, these products are not like under Art.VIII:2 first sentence of ARTA, and neither
under Art.VIII:4. They are not in a relationship of competition, as the consumers' tastes and habits
are significantly different.
Fourth, the distinction created by the labeling-requirement does not discriminate between
imported or domestic tapagium rather distinguished between the bat-safe and the not bat-safe
products with independence of its origin. Since the products are not like products, the labeling
requirement could not affect the competitive opportunities between Alducra's and Runbeti's
tapagium.
Finally, the label does not have the design/architecture/structure to alter the competitive
conditions since it was created to protect the bats and not distinguish between Alducra's and
Runbeti's tapagium.
II.3. Alducra's 2019-Statute falls within Art.X of the ARTA.
In the unlikely case that the honorable Court found that the 2019-Statute is breaching the
ARTA, the measure at issue is under the exception of Art.X of the ARTA.
Art.XX of the GATT informs the interpretation of Art.X of the ARTA, as they provide the
same wording. The AB clarified that a two-tier test must be carried out to analyze this provision:
First, the measure must fall within the scope of one or more of the subparagraphs, and second, the
measure must fulfill the requirements of the chapeau. 121
121 AB, US-Gasoline (1996). P-22.
II.3.1 Subparagraphs
Art.X.b allows members to apply measures that otherwise may be inconsistent with the
ARTA, necessary to protect human/animal/plant life or health. The AB concluded that in order to
determine if a measure is necessary, a holistic-analysis of three-factors must be carried out: First,
the importance of the legitimate objective, second, the contribution made by the measure to the
enforcement of the legitimate objective, and, third, the restrictiveness of the measure. 122
Additionally, it shall be compared with alternative measures less trade-restrictive,123 which
must be reasonably expected for the State applying the measure at issue.124 The burden of proof of
the existence of the alternative measure relies on the Applicant.125
Art.X.g provides for measures aiming to protect exhaustible natural resources that are
"made effective in conjunction with restrictions on domestic production or consumption".126 The
AB clarifies that to fall under the scope of this subparagraph, a holistic assessment must be carried
out: "First, that the measure is related to the legitimate policy objective and second, that the
measure is made effective in conjunction with restrictions on domestic production or
consumption".127
Regarding the legitimate objective, there is a need for establishing a direct connection
between the measure imposed by the maintaining member and the objective, which is the
122 AB, Brazil – Retreaded Tyres (2008).P-156.
123 Id.
124 AB, supra-note 99.P-170.
125 Id.
126 Case:Art.X.
127 AB, China-Rare Earths (2014).P-5.88.
conservation of an exhaustible natural resource. Hence, a measure that is mere "incidentally" or
"inadvertently" would not satisfy this requirement.128The AB has also clarified that living natural
resources can also be exhaustible natural resources.129
Concerning the second element, the AB concluded that such measure must be 'operative',
as having 'come into effect" equivalent to the restriction on domestic production or consumption.
Further, "in conjunction with' should be read as 'together with'.130
II.3.2 The chapeau of Art.X.
Following the WTO jurisprudence, for a measure to be consistent with the chapeau of
Art.X, it must not: First, be applied in a manner that would constitute "arbitrary or unjustifiable
discrimination" between countries where the same conditions prevail and; second, be applied in a
manner that would constitute "a disguised restriction on international trade".131
Concerning the first, three-elements must be analyzed: (i) the application of the measure
must result in discrimination, i.e., a treatment less favorable. (ii) the discrimination must be
arbitrary or unjustifiable."132 According to the AB, arbitrary or unjustifiable discrimination include
an analysis of the cause of the discrimination "or the rationale put forward to explain its existence"
128 Id.P-5.90.
129 AB, US – Shrimp (1998).P-128.
130 AB, supra note 123.
131 AB, supra-note 124.P-215.
132 AB, supra note 131.
and its objective.133 The ordinary meaning of the term "arbitrary" is "based on random choice or
personal whim." The term "unjustifiable" means "not able to be shown right or reasonable".134
(iii) Discrimination must occur between countries where the same conditions prevail. 135
The AB concluded that the term "condition" is only applied to those relevant to establish arbitrary
and unjustifiable discrimination, "the question is whether the conditions prevailing in different
countries are relevant 'the same".136
Regarding the second, the AB clarified that the protective application of a measure could
be ascertained by its design/architecture/and its revealing structure. They allow the interpreter to
conclude that there is an objective to restrict international trade rather than protect animal health
and life or conserve exhaustible natural resources.137
II.3.3 Alducra's 2019-Statute is consistent with Art.X of the ARTA.
§ 2019-Statute falls within the scope of Art.X.b-g.
The trading measures imposed by Alducra are necessary to protect the life and health of
the Long-Nose since the legitimate objective of the 2019-Statute is to encourage bat-safe
133 AB, US-TUNA II (MEXICO) (2018).P-7.316.
134 See:https://www.lexico.com/definition/unjustifiable.
135 AB, supra note 131.
136 AB, EC-Seal Products (2014).P-5.299.
137 AB, supra note 93.P-29.
practices138 in the tapagium production process,139 as it obliges farmers to allow the Agave plant
to flower,140 to protect the feeding areas of this species.
Regarding the alternative measure, it is important to point out that the burden of proof relies
on Runbeti. However, there is no less restrictive alternative measure reasonably available to protect
bats and encourage good agricultural and sustainable practices to produce tapagium.
Regarding Art.X.g, the Long-Nosed is an exhaustible natural resource as it is listed as
vulnerable141. This species has been affected by unsustainable practices while producing tapagium.
Moreover, the measure is directly related to bats' conservation as they persuade the tapagium
producers to use bat-safe practices.
The measure also induces the consumers to choose eco-friendly tapagium and increase the
awareness of no bat-safe practices by imposing a visible labeling-requirement and increasing the
price of not bat-safe tapagium with the tax. Furthermore, the measures are clearly in conjunction
with restrictions on domestic production or consumption of Alducra's tapagium, since in January
2015, Alducra required all agave farmers to use bat-safe farming practices.142
§ 2019-Statute falls under the chapeau of Art.X of the ARTA.
138 Case.P-21
139 Id.
140 Id.P-15
141 Id.
142 Id.P-15.
The 2019-Statute is consistent with Art. X's chapeau since it is applied objectively to bat-
safe and not bat-safe practices indistinctly of its origin, in a justifiable and no-arbitrable manner.
Also, the bats' welfare conditions while producing tapagium are different.
Finally, the design/architecture/and revealing structure of the measure reveals the objective
to protect bat species of the damage derived from not bat-safe farming practices. Therefore, the
measure does not constitute a disguised restriction on international trade.
In conclusion, Alducra's 2019-Statute is justified by Art.X of the ARTA., given that the
measures imposed by Alducra fit the tests previously mentioned.
CONCLUSION
The Federal States of Alducra respectfully request the Honorable Court to find that:
I. Runbeti's WPF and its omission to implement conservation/mitigation measures
violate the PP, CBD, CMS, and Eurobats. Additionally, Runbeti is violating the TEH principle as
it causes damage to the environment/agriculture/and economy of Alducra. Therefore, Runbeti is
obliged to implement immediate mitigation measures to protect the life and health of the Royal-
Notule.
II. Alducra's 2019-Statute does not violate the ARTA since there is no discrimination
between tapagium imported from Runbeti and the domestic tapagium as those products are not in
a relationship of competition. However, in the unlikely case that the honorable Court considers
that they are like products, Runbeti is justified by Art.X of the ARTA.
(respectfully submitted)
Agents on behalf of the applicant State.