memorial for the federal states of aeolia · pdf file30 united nations ... philippines, gr no....

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

21st ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

MOOT COURT COMPETITION

Questions Relating to

Ocean Fertilization and Marine Biodiversity

FEDERAL STATES OF AEOLIA

(APPLICANT)

V.

REPUBLIC OF RINNUCO

(RESPONDENT)

MEMORIAL FOR THE FEDERAL STATES OF AEOLIA

(APPLICANT)

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TABLE OF CONTENTS

Title Page

Cover Page …………………………………………………………………………... 1

Table of Contents ……………………………………………………………………. 2

Index Authorities ……………………………………………………………….......... 3

Statement of Jurisdiction ………………………………………………...................... 12

Questions Presented ………………………………………………………................. 13

Statement of Facts ………………………………………………………………….... 14

Summary of Arguments ………………………………………………………………18

Main Arguments……………………………………………………………………… 19

I. The jurisdiction of ICJ is based on forum prorogatum…………………….19

II. The respondent committed an International Wrongful Act……..................29

III. The respondent did not abide with CMS: Narwhals are protected

species……………………...........................................................................38

IV. The respondent breached CBD: Narwhals is a part of mass biological

diversity……………………………………………………………………40

V. UNCLOS’protection on biodiversity was breached by respondent……….41

Reliefs…………………………………………………………………………………...43

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INDEX OF AUTHORITIES

Treaties and Conventions

Title Short Citation Page Cited

Addis Ababa Principles Addis Ababa

Principles

24, 41

Articles on Responsibility of States for

International Wrongful Acts

Articles on

Responsibility of

States

29

Charter of the United Nations UN Charter 20, 21

Convention on Biological Diversity CBD 21, 22, 23, 25, 26, 27,

28, 40, 41

Convention on Investment Disputes CID 20

Convention on the Conservation of

Migratory Species of Wild Animals

CMS 21, 22, 23, 25, 26, 38, 39

Convention on the Prevention of Marine

Pollution by Dumping of Wastes and

Other Matter

London Convention 21, 22, 23, 25, 26, 34,

37, 38,

Declaration of the United Nations

Conference on Human Environment

Stockholm

Declaration

29, 35

Hague Convention on Highjacking Hague Convention 20

Paris Climate Change Convention Paris Convention 37

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Protocol to the Convention on the

Prevention of Pollution by Dumping of

Wastes and other Matter (1996 as

amended by 2006 Protocol)

London Protocol,

1996 (as amended by

2006 Protocol)

21, 22, 23, 25, 26, 30,

31, 33, 35, 37, 38

Rio Declaration on Environment and

Development

Rio Declaration 29

Rules of Court of the International Court

of Justice

ICJ Rules of Court 19, 20

Statute of the International Court of

Justice

ICJ Statute 20, 21

United Nations Convention on the Law of

the Sea

UNCLOS 26, 27, 41, 42, 43

United Nations Convention on the

Prevention and Punishment of the Crime

of Genocide

Genocide Convention 20

Vienna Convention on the Law of Treaties VCLT 27, 28, 29, 34, 37, 38,

39, 42

Documents from Conference of Parties on the Convention on Biological Diversity,

London Convention and United Nations General Assembly


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Conference of the Parties, Annex II,

Decision VII/2, Guidelines for the

Sustainable Use of Biodiversity

COP, Annex II,

Decision VII/2

41

Conference of the Parties, Annex to

Recommendation I/8

COP, Annex to

Recommendation I/8

24

Conference of the Parties, Decision V/18,

Impact Assessment, Liability and Redress

COP, Decision V/18 24

Conference of the Parties, Decision VI/11,

Liability and Redress

COP, Decision VI/11 24

Conference of the Parties, Decision VII/2,

Sustainable Use

COP, Decision VII/2 24

Conference of the Parties, Decision VII/5,

Marine and Coastal Biological Diversity

COP, Decision VII/5 24

Conference of the Parties,

Recommendation I/8, Scientific,

Technical and Technological Aspects and

Sustainable Use of Coastal and Marine

Biodiversity

COP,

Recommendation I/8

23, 24

Resolution 1, 2(2010) London Convention,

Resolution 1, 2

(2010)

31

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United Nations General Assembly

A/RES/67/L21

UN General

Assembly,

A/RES/67/L21

30

United Nations General Assembly,

A/RES/62/215

UN General

Assembly,

A/RES/62/215

30

United Nations General Assembly,

A/RES/66/288

UN General

Assembly,

A/RES/66/288

30

International Court of Justice Decisions and Jurisprudence of International Tribunals

and Other Tribunals


Artico v Italy, ECHR, Series A, No. 37,

1980

Artico v Italy 39

Australia vs. Japan: New Zealand

Intervening ICJ Reports 2014, pp. 226

Whaling in the

Antartic

33

Bosnia v. Yugoslavia, ICJ Reports, 1996 Application of the

Genocide Convention

20

Congo v. France, ICJ Press Release,

2007/11

Certain Criminal

Proceedings in

France

20

of 44

Djibouti vs. France, ICJ Reports, 2008 Certain Questions of

Mutual Assistance in

Criminal Matters

20

France v. Norway, 9 I.C.J. 1957 Norwegian Loans

Case

32

Germany v. Poland (Merits), 17 PCIJ

(Series A) 29, 51 (1928)

Chorzów Factory

Case (Merits)

32

Hungary v. Slovakia, ICJ Reports, 1997,

116 ILR, p. 1;

Gabcikovo-

Nagymaros Project

37

Italy v. France, United Kingdom of Great

Britain and Northern Ireland and United

States of America, ICJ Reports, 1954, p

19, 54

Monetary Gold Case 20

Loizidou v. Turkey,

ECHR, Series A, No. 310, p. 23 (1995);

103 ILR, p. 621

Loizidou v. Turkey 39

Minors Oposa v. Secretary of the

Department of Environment and Natural

Resources, Supreme Court of the

Philippines, GR No. 101083, July 31,

1991

Oposa v. Factoran 29, 35

New Zeland v. France, ICJ Reports, 1995,

pp. 288, 341; 106 ILR, pp. 1, 63

Request for an

Examination of the

35

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Situation in

Accordance with

Paragraph 63 of the

Nuclear Tests Case

(Dissenting Opinion:

Judge Weeramantry)

New Zeland vs France, December 20,

1974, ICJ Reports, 20 December 1974, pp.

253, 268; 57 ILR, pp. 398, 413

Nuclear Test Case

(Judgment)

36, 37

Nicaragua v. Honduras, ICJ Reports,

1988, p. 105; 84 ILR, p. 218

Border and

Transborder Armed

Actions case

37

Nicaragua v. Honduras, ICJ Reports,

1988, p 69

Case Concerning

Border and

Transboder Armed

Actions

20

Nicaragua v. United States of America

(Merits), 1986 I.C.J. 14

Military and

Paramilitary

Activities in and

against Nicaragua

(Merits)

32

Portugal v. Australia, ICJ Reports, 1995, p

102

East Timor Case 20

of 44

Qatar v. Bahrain (Merits), ICJ Reports,

2001, paras. 110 ff

Maritime

Delimitation and

Territorial Questions

between Qatar and

Bahrain (Merits)

33

Qatar vs Bahrain, ICJ Reports, 1994, p

112 and ICJ Reports, 1995, p 6

The Case Concerning

the Maritime

Delimitation and

Territorial Questions

Between Qatar and

Bahrain

19

Shrimp Turtle Case, WTO Appellate

Body, 38 ILM, 1999

Shrimp Turtle Case 37

Soering v. United Kingdom, European

Court of Human Rights, Series A, No.

161, p. 34 (1989); 98 ILR, p. 270

Soering v. UK,

European Court of

Human Rights

39

United Kingdom v. Albania (Preliminary

Objection), ICJ Reports, 1948

Corfu Channel Case

(Preliminary

Objection)

19

United Kingdom v. Albania, (Merits), ICJ

Reports, 1949

Corfu Channel Case

(Merits)

32, 35

US Diplomatic and Consular Staff in

Tehran, ICJ Reports, 1980, p 3, 24

The Iranian Hostage

Case

20

of 44

United States vs Canada, 3 RIAA 1905

(1938)

US v Canada 35

Title Page Cited

Chittharanjan Felix. Amerasinghe, Evidence in International

Litigation (Brill, 2005)

32

A. D’Amato, ’Do We Owe a Duty to Future Generations to

Preserve the Global Environment?’, 84 AJIL, 1990

35

Di Torro, D. M., Zarba, C. S., Hansen, W. J., Berry, W. J., Swartz,

R.C., Cowan, C. E., Pavlou, S. P., Allen, H. E., Thomas, H. A.,

and Paquin, P. R., “Technical basis for establishing sediment

quality criteria for non-ionic organic compounds using

equilibrium partitioning.” Environ. Toxicol. Chem. 10(12), 1541-

1583 (1991).

36

E. Weiss, ‘Our Rights and Obligations to Future Generations for

the Environment’, 84 AJIL, 1990, and E. Weiss, Intergenerational

Equity

35

Eduardo Valencia-Ospina, Evidence Before the International

Court of Justice, 1 Int’l L.F. D. Int’l 203 (1999)

32

F.G.Minujin, ’Debt-for-Nature Swops:A Financial Mechanism to

Reduce Debt and Preserve the Environment’, 21 Environmental

Policy and Law, 1991

34

of 44

Harrison, Principles of Internal Medicine (18th edition, McGraw

Hill Companies, Inc, 2012)

35

Jens Evensen, Evidence Before International Courts, 25 Nordisk

Tidsskrift Int’l Ret 44 (1955)

32

Carol Mattson Port, Pathophysiology: Concepts of Altered Health

States (Lippincott Williams and Wilkins, 1993)

36

Neill H. Alford, Jr., Fact Finding by the World Court, 4 Vill. L.

Rev. 37 (1959)

32

D. Polit and C. Beck, Research and Evaluation (6th edition) 36

Shabtai Rosenne, Law and Practice of the International Court (vol

2, M. Nijhoff, 1997)

19

Susan George, The Debt Boomerang: How Third World Debts

Harm Us All, (Pluto Press, London, 1992)

34

S. Yee, ‘Forum Prorogatum in the International Court’, 42

German YIL, 1999

19

Philippe Sands, Principles of International Environmental Law

(Cambridge University Press, 2003)

35

W. Michael Reisman and Eric E. Freedman, The Plaintiff’s

Dilemma: Illegally Obtained Evidence and Admissibility in

International Adjudication, 76 (4) AJIL 737-753 (Oct., 1982)

32

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STATEMENT OF JURISDICTION

The Federal States of Aeolia and the Republic of Rinnuco and pursuant to Article 36 and

Article 40 of the Statute of the International Court of Justice and Article 38 (5) of the Rules of

Court, submit to the International Court of Justice the present Application instituting proceedings

against the Republic of Rinnuco concerning the jurisdiction over this dispute and the case of

Questions Relating to Ocean Fertilization and Marine Biodiversity, through a special agreement

signed in The Hague, The Netherlands, on the eleventh day of July in the year two thousand

sixteen. Applicant submits to the jurisdiction of the Court.

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QUESTIONS PRESENTED

A. Whether or not the Republic of Rinnuco is within the mandatory jurisdiction of the

International Court of Justice under the doctrine of forum prorogatum and the jus cogens

principle of international law

B. Whether or not the Republic of Rinnuco commited International Wrongful Act

C. The Republic of Rinnuco has breached its International Obligation on: London Convention

and its protocols, Convention on the Conservation of Migratory Species and Wild animals,

United Nations Convention on the Law of the Sea, and Convention on Biological Diversity:

the Breach of the treaties is attributable to the State through a state organ.

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STATEMENT OF FACTS

On 15 December 2014, the Republic of Rinnuco, through law, approved and planned the

ocean fertilization project in Muktuk Ocean where a precious shared resource between states is

located. The applicant initiated protests and negotiations on its adverse effect on marine

biodiversity in relation to respondent’s international obligation but was not heeded. On 22 April

2015, nine dead narwhals were found dead off the coast of respondent.

The Parties

The applicant and respondent are neighboring coastal states in Scheflutti which is

surrounded by the Muktuk Ocean. The marine biodiversity is comparable to Greenland and other

countries in the Arctic Circle. Narwhals inhabit the Muktuk Ocean and are seen in the waters

Aeolia and Rinnuco.

The applicant’s diversified industrial economy focuses on fishing and ecotourism including

whale watching. It has a small research institute, the Nautilus Research Institute, which studies

narwhals. The respondent’s developed and diversified industrial economy includes fishing

activities.

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International Obligation

Both States ratified the CBD acknowledging the compulsory jurisdiction of the ICJ;

London Convention, London Protocol; CMS; and Kyoto Protocol also recognizing the compulsory

jurisdiction of the ICJ. The parties ratified the UNCLOS and consented to ICJ’s jurisdiction but

respondent, on March 28, 2016, through notice revoked such jurisdiction.

Both states signed the Paris Convention and attended with full participation to the

Stockholm Declaration, Rio Declaration, 2002 World Summit on Sustainable Development, and

2012 Rio Conference at Rio de Janeiro.

The Dispute

On 21 November 2014, the respondent, after an extensive environmental impact

assessment, announced its plans for Ocean Fertilization hoping to stimulate phytoplankton growth.

It notified the applicant about the planned ocean fertilization where the applicant expressed its

concern on the adverse effect of ocean fertilization on marine environment in Muktuk Ocean and.

Respondent was urged to uphold its international obligation, the precautionary principle, and

abandon the project. The respondent’s legislature approved and funded the project through phases

which are successively large.

On 5 January 2015, respondent’s research vessels, Stanlee, deposited ferrous sulfate

approximately 175 miles off the coast of Rinnuco. The applicant warned that respondent is violating

international law in transgression of the precautionary principle and Article 3.1, Article 3.3,

Article 4, Resolution LC-LP.1 (2008), Resolution LC-LP.2 (2010), Resolution LP.4(8), and other

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provisions of the London Convention and its Protocols. Respondent was urged to terminate the

project immediately and meet with the applicant to discuss more fully and consider other options.

Respondent countered that the project’s purpose was scientific and averred that the London

Convention’s amendments are not yet in force. Respondent did not follow the Assessment

Framework and the Environmental Impact Assessment as the Resolutions to the London Protocol

are non-binding within its legal system. The respondent favored the ocean fertilization and

abstained from voting at conferences of the parties in multilateral environmental agreements which

prohibits ocean fertilization. No domestic action was taken to implement the London Convention’s

Resolutions. Rinnuco temporarily suspended the project after the initial phase and will resume the

project at its discretion.

On 22 April 2015, nine dead narwhals were found off the coast of the respondent. The

Nautilus Research Institute’s necropsy shows that the results were inconclusive. The applicant

attributes this to the Ocean Fertilization Project and urges the respondent to act in accordance with

the precautionary principle and terminate the remainder of its project to avoid causing

transboundary harm.

Rinnuco deposed that the death of the narwhals is not attributable to the project and averred

that it has acted in accordance to CBD, has not caused any transboundary harm, has conducted an

environmental impact assessment and notified the applicant the project. Respondent contends non-

violation on CMS and UNCLOS and has not harmed the marine environment and biodiversity. It

contends that the project is beneficial to marine biodiversity, fish production, and scientific

information and that respondent is authorized under UNCLOS. Respondent claims that the United

Nations General Assembly Resolutions are non-binding, and United Nations General Assembly

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Resolution 62/215 actually encourages States to support the further study and enhance

understanding of ocean iron fertilization.

On 27 February 2015, respondent submitted its intended nationally determined

contribution in anticipation of the Paris Convention and committed to reduce greenhouse gas

emissions by 50% by 2030. This demonstrates respondent’s dedication to reducing greenhouse gas

emissions and mitigating climate change, and its ocean fertilization project and other ocean

fertilization projects could help to sequester carbon dioxide and mitigate climate change which, in

turn, could benefit marine biodiversity in Muktuk Ocean. Rinnuco plans to resume its ocean

fertilization project within the next year.

From January 2015 through March 2016, additional negotiations, followed by mediation,

were conducted between the Federal States of Aeolia and the Republic of Rinnuco, but the process

failed to resolve the dispute regarding Rinnuco’s ocean fertilization project.

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SUMMARY OF ARGUMENTS

1. Respondent must observe ICJ’s mandatory jurisdiction under the CBD to which the CMS,

UNCLOS and London Convention and it Protocols subsidiarily apply; and the mandatory

jurisdiction of the ICJ on VCLT based on jus cogens principle

2. The Republic of Rinnuco committed an International Wrongful Act

a. The act is attributable to a state through a state organ

b. Respondent violated the CMS, CBD, UNCLOS, and London Convention and its

Protocols

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MAIN ARGUMENTS

I. The Jurisdiction of the ICJ based on forum prorogatum

The ICJ Rules of Court provides for the doctrine of forum prorogatum and states that when

an application is made by a state against another state whose consent is yet to be given, no action

shall be taken unless the state against which the application is made consents to the jurisdiction of

the court for the purposes of the case1.

It is submitted that the consent of the state to the Court’s jurisdiction may be established

by means of acts subsequent to the initiation of the proceedings2 to avoid the impression that the

Court is extending its jurisdiction by means of fiction and that there must be a showing that such

1 Art 38 (5), ICJ Rules of Court

2 Shabtai Rosenne, Law and Practice of the International Court (vol 2, M. Nijhoff, 1997), p 672

and S. Yee, ‘Forum Prorogatum in the International Court’, 42 German YIL, 1999, p 147

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consent is voluntary and indisputable3. However in Qatar v. Bahrain4 Minutes of the Meeting

between the two foreign ministers can ground the ICJ of its jurisdiction5.

For the doctrine to apply, the consent of the state must (1) must be explicitly and clearly

deduced from the conduct of the state, and (2) the extent of the consent depends upon the matching

of the application made with the expression by the other party of its consent6. The application must

specify the legal grounds to which the jurisdiction of the Court is to be based7. In some instances,

the application of the forum prorogatum were observed due to Security Council’s

recommendation8 but the doctrine will not apply when the rights of third parties will be the subject

matter of the decision9 even in erga omnes obligations10.

The Court may assume jurisdiction over the dispute is when there is a compromise clause

contained in the treaty to which the applicant and the respondent is a state party11. There have been

3 Corfu Channel Case (Preliminary Objection), United Kingdom v. Albania, ICJ Reports, 1948, p

27; Application of the Genocide Convention, ICJ Reports, 1996, p 595

4The Case Concerning the Maritime Delimitation and Territorial Questions Between Qatar and

Bahrain, ICJ Reports, 1994, p 112 and ICJ Reports, 1995, p 6

5 Ibid, ICJ Reports, 1995, p 17, 25

6Certain Criminal Proceedings in France, ICJ Press Release, 2007/11

7Certain Questions of Mutual Assistance in Criminal Matters, ICJ Reports, 2008, par 163

8 Article 25, UN Charter

9 Monetary Gold Case, ICJ Reports, 1954, p 19, 54

10 East Timor Case, ICJ Reports, 1995, p 102

11Article 40, ICJ Statute; Article 38, ICJ Rules of Court

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a number of international instruments which grants jurisdiction on the ICJ such as: (1) The

Genocide Convention, (2) Convention on Investment Disputes and (3) Hague Convention on

Highjacking, and numerous others. These have been applied also in some cases such as: (1)

Application of the Genocide Convention12, (2) US Diplomatic and Consular Staff in Tehran13 and

(3) Case Concerning Border and Transboder Armed Actions14.

In view of this is the competence of the ICJ to decide its own jurisdiction15 where

jurisdiction is exercised over all disputes which parties refer to it and matters specially provided

for in the UN Charter, Treaties and Conventions in force16. The disputes may refer to: (1)

interpretation of treaty, (2) questions of international law, and (3) existence of fact which

constitutes a breach of international obligation and the nature and extent of the reparation to be

made17. From the foregoing principles, the applicant therefore submits the following:

A. Respondent must observe ICJ’s mandatory jurisdiction under the CBD to which the

CMS and London Convention and it Protocols subsidiarily apply

12Bosnia v Yugoslavia, ICJ Reports, 1996, p 595

13The Iranian Hostage Case, ICJ Reports, 1980, p 3, 24

14Nicaragua v Honduras, ICJ Reports, 1988, p 69, 76

15Article 36 (6), ICJ Statute

16 Article 36 (1), Ibid


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The applicant and the respondent are state parties to the CBD18 where they made an

unqualified submission on the mandatory jurisdiction of the ICJ over disputes concerning the

interpretation and application of the treaty19 when the solution through negotiation, good offices,

or request by mediation by a third party failed20. The issue therefore is whether or not there has

been a failure to exhaust the modes of conciliation under paragraph two (2) or three (3) of Article

27 of the CBD.

It is humbly submitted that there has been exhaustion of the remedies under Article 27 (1

& 2) of the said convention. The exchange of diplomatic notes constitutes a negotiation by the

parties21. There have been mediations and other modes of dispute resolution to the effect which

also failed22. These events trigger the jurisdiction of the ICJ albeit the disjunctive language of

Article 27 (3) of the CBD23.

CBD also provides for the applicability of other conventions for it reaffirms that while

states have sovereign rights over their own biological resources, there is a note that it is vital to

anticipate, prevent, and attach the causes of significant reduction or loss of biological diversity at

source and that the lack of full scientific certainty should not be used as a reason for postponing

18 Paragraph 5, Record

19 Article 27 (3), CBD

20 Article 27 (2 & 3), Ibid

21 Paragraphs 13, 14, 17, 18, 20, & 21, Record


23 *** dispute settlement as compulsory: *** (b) Submission of the dispute to the International

Court of Justice

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measures to avoid or minimize such threat24. The convention should be understood in the light of

other conventions pertaining to the conservation of life since CBD desires to enhance and

complement existing international arrangements for the conservation of biological diversity and

sustainable use of its components for the benefit of the present and future generations25.

The applicant submits the applicability of the CMS and the London Convention and its

Protocols, as a subsidiary source of obligations on the present action against the respondent. It was

provided by the CBD that it shall not affect the rights and obligations of any contracting party

deriving from any existing international agreement except there the exercise of those rights and

obligations would cause a serious damage and threat to biological diversity26. The following

obligations under the CMS therefore are activated by the quoted article:

1. That the parties acknowledge the need to take action to avoid any migratory species

becoming endangered27 since the narwhals move in between the coasts of the Rinnuco

and Aeolia28 and have been listed on the Appendix II of the CMS29

24 Preamble, CBD

25 Preamble, Ibid


27 Article II (2), CMS

28 Article I (1) (a), Ibid


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2. The benefits of the migratory species should be given priority and those species in an

unfavorable conservation status30. The respondent refuses to settle with its obligation

to desist from its Ocean Fertilization Project31

While the London Convention provides for arbitration as a mode of dispute resolution32,

the Court is not precluded to apply such convention since the state parties, in their conference to

the CBD, have provided the taking into account of the existing conventions and the applicability

of liability regimes under other international instruments pertaining to the dumping of wastes and

other matters such as:

1. The minimization of municipal waste and the promotion of the integrated marine and

coastal biodiversity with the undertaking of an environmental impact assessment33

2. The inclusion on national plans the basic management elements recommended for the

reduction of waste which affects biological diversity34

3. The implementation of environmentally sustainable mariculture practices on the use of

chemicals and minimization of high nutrient release35

4. The recognition on the use of mariculture but with the precaution its threat to marine

and biological diversity such as wide scale destruction and degradation of natural

30 Article IV (3), CMS


32 Article 16, London Protocol, 1996 (as amended by 2006 Protocol)

33 No. 10 (a), COP, Recommendation I/8

34 No. 12 (c), Ibid

35 No. 15 (I) (a), Ibid

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habitats and the observation of the precautionary approach in mariculture

development36

5. The applicability of other conventions with regards to the development and application

of liability regimes under other multilateral agreements37

6. The making available to the international community the information and issues

regarding those that may cause damage to biological diversity38

7. Development of effective methods for effluent and waste control39

8. The application of the Addis Ababa Principle 11 stating that users of biodiversity

components should minimize waste and adverse environmental impact and optimize

benefits from uses40

The jurisdictional scope of the applicability of the CBD includes thereon the applicability

of the CMS and the London Convention and its Protocols. They shall apply in the following

instances:

1. In the case of components of biological diversity, in areas within the limits of its

national jurisdiction

36 No. 11, COP, Annex to Recommendation I/8

37 No. 7, COP, Decision V/18

38 No. 2, COP, Decision VI/11

39 Operational Objective No 4.1 (a) (iii), COP, Decision VII/5

40 Practical Principle 11, Addis Ababa Principles; Annex II, Decision VII/2

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2. In the case of processes and activities, regardless of where their effects occur, carried

out under its jurisdiction or control, within the area of its national jurisdiction or beyond

the limits of national jurisdiction.41

The respondent’s consent refers to those activities that are: (1) made within its jurisdiction

but their effects extend outside its national jurisdiction and (2) made outside its jurisdiction and

their effects extent to another state’s jurisdiction. Hence, there should be a due observance by the

respondent on the provisions of the treaties, and the appropriation of regulation, management, or

control of risk associated with the use and release of living modified organisms resulting from

biotechnology which are likely to have adverse environmental impacts affecting the conservation

and sustainable use of biological diversity42 including the use of elements that adversely affect the

habitats of the narwhals.

The Ocean Fertilization Project is an in-situ activity for it stimulates of the growth of

phytoplanktons43, which are foods for the narwhals44, by respondent45 through the introduction of

ferrous sulfate within its exclusive economic zone46. This is because the genetic resources exist

within the ecosystem and natural habitats47. It is therefore mandated, with due observance to the

41 Article 4, CBD

42 Article 8 (f), Ibid


44 Paragraph 13, Ibid



47 Article 2, CBD

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provisions of the CBD, that respondent observe the provisions of the CMS and the London

Convention and its 1996 and 2006 Protocols.

B. ICJ has jurisdiction over the dispute within UNCLOS

The contracting parties shall implement the CBD with respect to the marine environment

consistently with the rights and obligations of states under the law of the sea48. This refers to the

rights of the state under the UNCLOS which shall not be reduced except insofar as it contravenes

the provisions of the CBD and other related treaties and conventions. Hence the identification and

enjoyment of the specific rights of the state within those zones or territories as identified by the

UNCLOS is effectively limited by and is subject to the provisions of the CBD, CMS and the London

Convention and its Protocols.

It is undisputed that the Ocean Fertilization Project was conducted in the Muktuk Ocean

in a 2, 000 sqkm land area which is located approximately 150 to 200 miles off the coast of

Rinnuco49. While the respondent has the sovereign right to explore, conserve, exploit and manage

the natural resources within its exclusive economic zone50, the respondent has the obligation to

observe due regard to the rights and duties of other states51 taking into account all relevant

circumstances and conventions to which the states are state parties, and the interests involved to



50 Article 56 (1) (a), UNCLOS


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the parties as well as to the international community as a whole52 which in this case includes the

jus cogens principles and customary international law such as right to environment and balanced

ecology, and precautionary principles. The UNCLOS obliges the coastal state, in its exclusive

economic zone, to ensure the proper conservation and management measures to the maintenance

of the living resources in the area53 which makes a stricter approach on marine mammals where

states shall conserve small cetaceans and work with international organizations for their

conservation and management54.

The respondent’s notice of revocation on the jurisdiction of the ICJ on the interpretation

and application of the UNCLOS 55 must fail since Article 59 (2) and Article 30(3) of the VCLT

provides for the application of an earlier treaty insofar as they are compatible with the provisions

of the latter treaty and when the earlier treaty is suspended, the suspension shall be removed if it

appears in the latter treaty that such is the intention of the parties. Since the CBD is the latter treaty,

its provisions with respect to jurisdiction should prevail56.

C. ICJ has jurisdiction over the dispute based on jus cogens principles

52 Article 59, Ibid


54 Article 65, Ibid


56 Answer to Question No. 5, Clarifications

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In reference to Article 66 of the VCLT on jus cogens principles, the applicant submits the

application to the ICJ57 and not through arbitration. The language of the self-executing provision

of the law suggests the mandatory jurisdiction of the ICJ when the issue involves the applicability

of jus cogens principles. The applicant submits that the existing conventions regarding biological

diversity and the environment are jus cogens principles since the CBD defines the conservation is

a common concern of all mankind which is important to the evolution and maintenance of

life sustaining systems of the biosphere58. To this is the responsibility of the states to ensure that

the activities within their control or jurisdiction do not cause damage to the environment of other

states or of areas beyond the limits of their jurisdiction59. There are three principles that apply

regarding state responsibility and consequently on the jurisdiction of the ICJ: (1) biological

diversity is a common concern of all mankind, (2) biological diversity contributes to the proper

maintenance of the biosphere, and (3) it is the biosphere that maintains life on the Gaea which

benefits all its inhabitants most especially humans.

Biological diversity, as a common concern of all mankind, is a res communis which

requires a strict regulation on exploration and exploitation and needs the establishment of

management mechanisms which would employ the criterion of equity in distributing the benefits

of such activity. This is consistent with the precautionary approach and states are mandated to

observe the strict liability doctrine because any act that adversely affect the right of other states

and consequently its inhabitants both with respect to their right to life and their right to a healthful

57 Article 66 (a), VCLT

58 Preamble, CBD

59 Article 3, Ibid

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and balance ecology as espoused by the provisions of the Stockholm Declaration and the Rio

Declaration which codifies environmental law as a jus cogens principle.

The respondent, it is bound to observe the declarations pertaining to the environment,

biodiversity and biosafety since attendance is a signification of an intent to be bound by the

provisions of the said declarations60. None other than the VCLT provided that a state is mandated

to refrain from acts that would defeat the object and purpose of the treaty61. Both declarations refer

to the primordial requirement of the right to life referring to the environment since man is both a

creature and molder of the environment62 which must be understood in the light of the

interdependence of earth63 and commonly known as the rhythm and harmony of nature or

ecology64.

II. The respondent committed an International Wrongful Act

The respondent's legislation to effect the ocean fertilization plan equates to attribution by

a state organ65. The issue leans towards to plan to stimulate phytoplanktons growth through ocean


61 Article 18, VCLT

62 Preamble, Stockholm Declaration

63 Preamble, Rio Declaration

64 Oposa v. Factoran, GR No. 101083 (Philippines), (1991)

65Article 4 (1) (2), Articles on Responsibility of States

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fertilization66 where, despite the stern warning of applicant67, respondent continued, with its

national legislation, by dumping 15,000 kg of ferrous sulfate over the Muktuk Ocean68. This

caused the death of nine Narwhals off the Coast of Rinnuco69. The exchange of diplomatic notes70

shows direct espousal of the respondent on the ocean fertilization rendering direct attribution of

liability to state.

A. Respondent violated the 1996 Protocol to the London Convention

The preambular clause of the treaty seeks to establish the prevention and elimination of

pollution of the marine environment from dumping at the sea71. It emphasizes the intent of the

state parties on the obligation to apply a precautionary approach72 to environmental protection

upon reason to believe that wastes or other matter introduced into the marine environment are

likely to cause harm even when there is no conclusive evidence to prove causal relation between





70 Paragraphs 13 - 20, Ibid

71 Preamble, London Protocol, 1996 (as amended by 2006 Protocol)

72 Paragraphs 158, 162 & 167, United Nations General Assembly, A/RES/66/288; Preamble,

Paragraphs 82, 88, 98 (B), 110, United Nations General Assembly, A/RES/62/215; Paragraph

48, 171 in relation to 146 & 173, United Nations General Assembly, A/RES/67/L21

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inputs and their effects73. The treaty, both states are parties74, renders operative all provisions

therein vesting every enforceable and demandable rights under its purview.

1. Ferrous Sulfate is prohibited by the Protocol.

Any deliberate disposal into the sea of wastes or other matters75 which does not fall under

the exception clauses76 is prohibited. The used of Ferrous Sulfate77 for alleged reduction of the

carbon emission is ineligible for dumping under the protocol being an inert inorganic geological

material78 and bulky items comprising of iron79 which are generated not in a small island with

small community and has practicable access other than dumping. The release of 15,000 kg. of

ferrous sulfate over a 6 week period to a 2000 square kilometer area within the respondent’s

exclusive economic zone80 falls at par with the criteria of the protocol to be includible within the

prohibition of dumping wastes and other matter81.

73 Article 3(1) London Protocol, 1996 (as amended by 2006 Protocol); Resolution 1, 2 (2010), 4

(8) London Convention-Protocol (2008)


75 Article 1, 8, London Protocol, 1996 (as amended by 2006 Protocol)

76 Section 1 Annex 1, Ibid


78 Article 1(5), Annex 1, London Protocol, 1996 (as amended by 2006 Protocol)

79 Article 1(7) Annex 1, Ibid



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2. Extensive study as a condition precedent for dumping wastes

The treaty calls the duty on the respondent make a detailed description and characterization

of the waste and a precondition for consideration of alternatives in deciding whether it may be

dumped. The records do not show compliance on the requisites aside from the conduct of the

extensive environmental impact assessment82. The applicant submits that there should be a

convincing evidence to this effect83 and not on self-serving assertions84 when an ample opportunity

to prove the fact in issue85 is given. The respondent’s extensive environmental assessment findings

is disputed86 as it modifies the food web of marine biodiversity. The disputed fact appears to be in

the possession of the respondent. The burden of evidence is upon the respondent on this matter87.


83 Military and Paramilitary Activities in and against Nicaragua (Merits), 1986 I.C.J. 14

84 Chorzów Factory Case (Merits), 17 PCIJ (Series A) 29, 51 (1928)

85 Eduardo Valencia-Ospina, Evidence Before the International Court of Justice, 1 Int’l L.F. D.

Int’l 203 (1999); Jens Evensen, Evidence Before International Courts, 25 Nordisk Tidsskrift

Int’l Ret 44 (1955); W. Michael Reisman and Eric E. Freedman, The Plaintiff’s Dilemma:

Illegally Obtained Evidence and Admissibility in International Adjudication, 76 (4) AJIL 737-

753 (Oct., 1982); Neill H. Alford, Jr., Fact Finding by the World Court, 4 Vill. L. Rev. 37

(1959)


87 Corfu Channel Case, 1949 I.C.J.; Chittharanjan Felix. Amerasinghe, Evidence in International

Litigation (Brill, 2005); Norwegian Loans Case, 9 I.C.J. 1957

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The bare assertion of compliance of having extensive environmental impact fails to convince as

it is a conclusion of fact warranting recalibration of evidence. In Whaling in the Antarctic

Case88 the respondent has the burden of evidence relative to the remedial measures done contrary

to the precautionary principle.

3. No assessment finding was given to the applicant

The respondent cannot ignore the facts89 that warrant the availability of relevant

information to the other contracting party relative to the scientific and technical activities and

measures undertaken90; vigilant monitoring and assessment conducted91; and scientific and

technological programs and their objectives.92 The diplomatic notes93 equate into an international

agreement94 and a negotiation vehicle for the absence of formal compliance renders not its

efficacy95. This is a request96 to make information available as discussed above. Though not

88 ICJ Reports 2014, pp. 226

89 Paragraph 13,14,16-21, Record

90 Article 14 (2.1), London Protocol, 1996 (as amended by 2006 Protocol)

91 Article 14 (2.3), Ibid

92 Article 14 (2.2), Ibid

93 Paragraph 13 & 17, Record

94 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits), ICJ

Reports, 2001, paras. 110 ff.

95 Ibid, paras. 143 ff.

96 Article 14 (2), London Protocol, 1996 (as amended by 2006 Protocol)

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denominated as such, the treaty provisions must be interpreted in good faith in accordance with

the ordinary meaning to be given to the terms of the treaty in their context and in the light of its

object and purpose97. This renders operative the duty to make available the disputed information

which the respondent omitted.

4. No consultation was made with the applicant

The London Convention required the consultation with the other party who may be affected

and promptly recommend the most appropriate procedures adopted. This is pursuant to mandatory

duty of the avoidance of damage to marine environment. The respondent’s action and manner of

informing is blue-sky and perfunctory98 because the overt act failed to seek opinion or information

to make a decision as it is commonly understood99. The subsequent exchange of notes negates the

respondent’s contention.

5. The precautionary principle was not observed

The respondent’s ocean fertilization100 upon the applicant’s dissent101 is a reasonable nexus

upon the death of the narwhals102. This error is what precautionary seeks to abhor by taking

97 Article 31, VCLT


99 Article 31, VCLT

100 Paragraphs 13, 15, 18, & 21, Record

101 Paragraphs 14, & 17, Ibid


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preventive and reactive remedial measures103. Parties must strive to take precautionary measures

to prevent or minimize environmental degradation and agree that the polluter should bear the cost

of pollution, transboundary or otherwise, with due regard to the public interest and without

distorting investment in the energy cycle or international trade.104 The fact that huge mass of

biodiversity is at stake upon the execution of the ocean fertilization should have called a higher

degree of diligence to take preventive measures proportionate to its economic and scientific

capabilities105 to avoid any environmental degradation with reasonable nexus106 to the disputed

103 F.G.Minujin,’Debt-for-NatureSwops: A Financial Mechanism to Reduce Debt and Preserve

the Environment’, 21 Environmental Policy and Law, 1991, p. 146, and Susan George, The

Debt Boomerang: How Third World Debts Harm Us All, (Pluto Press, London, 1992), pp. 30–

1.

104 A. D’Amato, ’Do We Owe a Duty to Future Generations to Preserve the Global Environment?’,

84 AJIL, 1990, p. 190; Philippe Sands, Principles of International Environmental Law

(Cambridge University Press, 2003), p. 199; E. Weiss, ‘Our Rights and Obligations to Future

Generations for the Environment’, 84 AJIL, 1990, p. 198, and E. Weiss, Intergenerational

Equity.; Oposa v.Factoran, Supreme Court of the Philippines, GR No. 101083, July 31, 1991,

33 ILM, 1994, pp. 173, 185, and The Request for an Examination of the Situation in

Accordance with Paragraph 63 of the Nuclear Tests Case (Dissenting Opinion: Judge

Weeramantry), ICJ Reports, 1995, pp. 288, 341; 106 ILR, pp. 1, 63.


106 Stockholm Declaration

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act. The strict liability doctrine107 and the maxim “sic utere tuo ut alienum non laedas”108

mandate nations with responsibility to ensure that activities do not cause damage to the

environment. Respondent should have cautioned in doing the ocean fertilization and should have

calculated the propensity of hurting the mass biodiversity and human threats because iron

substances when taken into the body may cause physiologic imbalances and pathophysiologic

conditions causing fatality if left medically unattended109. The nexus between the dumping and

the Narwhals death is supported by a study110 finding that iron compounds leads to toxic levels

and debilitation. It shows only 1 percent margin of error111. The reactive measure of the

respondent to temporarily cease its project and upon completion of the first phase assessment

findings, discretion will be exercised to meet the exigencies112 is flawed.

107 US v Canada, 3 RIAA 1905 (1938)

108Corfu Channel Case (Merits), ICJ Reports, 1949

109 Harrison, Principles of Internal Medicine (18th edition, McGraw Hill Companies, Inc, 2012),

p. 676-684; Carol Mattson Port, Pathophysiology: Concepts of Altered Health States

(Lippincott Williams and Wilkins, 1993), p. 1432.

110 Di Torro, D. M., Zarba, C. S., Hansen, W. J., Berry, W. J., Swartz, R.C., Cowan, C. E., Pavlou,

S. P., Allen, H. E., Thomas, H. A., and Paquin, P. R., “Technical basis for establishing

sediment quality criteria for non-ionic organic compounds using equilibrium partitioning.”

Environ. Toxicol. Chem. 10(12), 1541-1583, (1991).

111 Polit and Beck, Research and Evaluation (6th ed), pp. 56;


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6. No proper observance of the pacta sunt servanda

The rule of pacta sunt servanda is based on good faith113 in the exercise of international

obligations114. The requirement of compliance and good faith militates against the respondent for

there was no compliance with the precautionary principle and London Protocol. The reservation

clause cannot be invoked115 because the act is contrary to the object and purpose of the treaty116.

7. Paris Convention does not justify non-compliance with the London Convention and its

Protocols

Respondent’s defense on reduction of the greenhouse gases in compliance with the Paris

Convention may not be invoked because it is only a signatory and not a state party. The obligation

is limited only to non-performance of any act defeats the purpose of the Treaty117. Respondent

failed to consider that by doing so, it made a unilateral discretion to curtail and suspend the treaty’s

operation which is not sanctioned by VCLT. Non-compliance of the other state is not an excuse to

113 Nuclear Tests Cases (Judgment), ICJ Reports, 20 December 1974, pp. 253, 268; 57 ILR, pp.

398, 413

114 Border and Transborder Armed Actions Case, ICJ Reports,

1988, p. 105; 84 ILR, p. 218;


116Article 19, VCLT

117Article 18, Ibid

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justify the non-compliance of a State party because the purpose treaty remains.118 Declarations of

a State agent bind the State which cloaked the authority119. State parties are bound to comply in

good faith120 on every obligation and may not invoke its internal law121 to justify non-

compliance122 with the London Convention and its Protocols. The respondent’s violation of the

doctrine of pacta sunt servanda123 warrants a breach of its international obligation.

III. The respondent did not abide with CMS: Narwhals are protected species

Both state parties ratified124 the Convention which cloaked protection over Narwhals125

that inhabit the Muktuk ocean126 which are included in Annex I127. The protection is not limited to

118 Gabcikovo-Nagymaros Project, ICJ, 1997,pp.78, 116 ILR, p. 1; Shrimp Turtle Case, WTO

Appellate Body, 38 ILM, 1999, p. 121 para. 129

119 Nuclear Test Case (Judgment), 20 December 1974

120 Section 26, VCLT


122Section 27, VCLT

123 Article 26, Ibid


125 Section 4, Appendix I & II, CMS


127 Section 4, Appendix I & II, CMS

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the named species128 and migratory species with higher taxon129, it is subject to expansion to

species with unfavorable conditions which require international agreements for their conservation

and management130. The treaty imposed upon the state parties to take necessary steps to conserve

the species and their habitats131 to avoid being endangered132. Migratory species may be listed in

both Appendices because of the possibility of avoiding distinction between those covered by

independent agreement and not. This is to give effect to the doctrine that provisions of a treaty

should be harmonized to give effect to all without defeating the treaty’s purpose133 or

intendment.134 States are and must be the protectors of the migratory species that live or pass

through their jurisdiction135, which respondent violated. Furthermore, the respondent must protect

the Cetaceans and its higher taxon being in Appendix I136 through habitat restoration137 and to

128 Section 1 (a), Appendix I & II, Ibid

129 Section 1 (b), Appendix I & II, Ibid

130Article IV (1), Ibid

131Article II (1), Ibid

132 Article IV (2), Ibid

133 Article 18, VCLT

134 Soering v. UK, European Court of Human Rights, Series A, No. 161, p. 34 (1989), 98 ILR, p.

270; Artico v. Italy, ECHR, Series A, No. 37 (1980) and Loizidou v. Turkey, ECHR, Series A,

No. 310, p. 23 (1995); 103 ILR, p. 621.

135 Preamble, CMS

136 Section 4, Appendix I & II, Ibid

137 Article 3 (4) (a), Ibid

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prevent, remove, compensate for or minimize as appropriate, the adverse effects of activities or

obstacles that seriously impede or prevent the migration of species138. There were several

treaties and multilateral conventions entered relative to the Conservation of Cetaceans and Their

Habitats in different global regions with a bolstered scheme to protect Appendix I and II-listed

species with distinction only on the relative capability of each state thus, evidencing state practice

and opinio juris as a legally binding customary international law.

IV. The respondent breached CBD: Narwhals is a part of the Mass Biological Diversity139

The respondent, in the exercise of its sovereign right to exploit their own resources, is

obliged to ensure that the activities within their jurisdiction or control do not cause damage to the

environment of other states or of areas beyond the limits of national jurisdiction. 140 The respondent

must also adapt141 its existing national strategies for conservation of the mass biodiversity; identify

processes which are likely to have significant impact142 on the conservation143 of the cetaceans and

Narwhals vis à vis regulation and management144 of biological diversity conservation.

138 Article 3 (4) (b), Ibid


140 Article 3, CBD

141 Article 6(a), Ibid

142 Article 6(c), Ibid

143 Article 8(c), Ibid

144 Article 8(f), Ibid

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The respondent also failed to make its environmental impact assessment145 conform with

the CBD guidelines146 because it did not allow public participation on the ocean fertilization study

relative to its adverse effects on biological diversity. Moreover, it is imperative to introduce

arrangements147, consultation148, and immediate notification upon imminent or grave danger149 to

affected states, conjunctive with initiation of remedial measures to prevent or minimize danger150.

Herein, the respondent' cessation with reservation banking on its political discretion151 of the ocean

fertilization hardly suffice the requirement because the collection and analysis of the initial phase

of the project again failed to satisfy the consultation requirement as discussed above; thus evading

the obligation imposed upon by CBD cloaked by inchoate compliance. Evidently, compliance in

good faith is more apparent than real.

The Addis Ababa principle152 states that users of biodiversity components should seek to

minimize waste and adverse environmental impact and optimize benefits from uses.

V. UNCLOS’ protection on biodiversity was breached by respondent

145 Paragraphs 12 - 15, Record

146 Article 14, CBD

147 Article 14 (b), Ibid

148 Article 14 (c), Ibid

149 Article 14 (d), Ibid

150 Article 14 (d), Ibid


152 COP, Annex II, Decision VII/2

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A. Respondent is a state party to the UNCLOS153

The notice of revocation was deposited on March 28, 2016154 while the case was filed on

June 23,2016155 effecting a 2 month-25 day interval which failed to satisfy the 3 month156

minimum reglementary period in the treaty. The effect of the withdrawal is prospective157 which

does not affect rights, obligations or legal situations of parties in the treaty prior to its

termination158.

B. UNCLOS mandates the protection and preservation of marine environment159

Respondent is duty-bound to protect and preserve the marine environment relative to its

exploitation of natural resources160 as well as to undertake control pollution of the marine



155 Registrar's Notice, ICJ

156 Article 65(2), VCLT


158 Article 71(2) (b), VCLT

159 Article 192, UNCLOS

160Article 193, Ibid

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environment from any source161, dumping162, so as not to cause transboundary harm163. The

UNCLOS mandates the respondent to abstain from releasing noxious substances164 and devices

used in exploration165 as protective measure over fragile ecosystems and the habitat of threatened

or endangered species and marine life166. The protection over migratory species167 and marine

mammals168 applies beyond the EEZ. The Narwhals, including the phytoplanktons being an

essential component of their habitats, are enclosed within the protection.

RELIEFS

The Applicant prays before this Honorable International Court the following:

A. That ICJ has jurisdiction over the case

B. That respondent violated International Law by conducting the initial phase of its

fertilization project

C. That any re-examination of this project would violate international law


162 Article 210 (1 - 5), Ibid

163Articles 194 (2) & 195, Ibid

164Article 194 (3) (a), Ibid

165 Article 194 (3) (d), Ibid


