Revised 02/09/15

2015 UNIVERSITY OF CEBU COLLEGE OF LAW MOOTING ACTIVITY

SPECIAL INTERNATIONAL TRIBUNAL

SPECIAL AGREEMENT

BETWEEN

THE REPUBLIC OF ARAGUAIA

(APPLICANT)

AND

REPUBLIC OF RISSO

(RESPONDENT)

For Submission to the

Special International Tribunal

of Difference Between them Concerning

Seismic Surveys and Oil Spills

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STATEMENT OF AGREED FACTS

1. The Republic of Araguaia, the Kingdom of Inia and the Republic of Risso are bordering the Middle Sea. Inia is located to the northwest of Araguaia and faces the east coastline of the Republic of Risso. Risso is a highly industrialised country. President Blake of Risso was elected in 2009. 2. Between 2003 and 2010, Araguaia was ruled by a military government led by General Dani Moiss and Admiral Pnfilo Blas, with General Moiss acting as the countrys President. During this period, Admiral Blas chaired the powerful Crisis Military Commission, which acted as the de facto government of the country. Admiral Blas also acted as Commander-in-chief of the Armed Forces. 3. The Yukule Archipelago (Yukule), a system of low-lying islands, lies at about 200 kilometres east of Risso, 300 kilometres south of Inia and 100 kilometres from Araguaias west coast. Yukule Island is the largest island of Yukon, and the only one which is inhabited. Until 2008, Yukule was under Risson control asserting historical claims thereto. For sometime until 2008, the Risson central government stationed naval forces on strategic points on Yukon and other islets of Yukule. 4. Yukule is home to large bird populations. Massive groups of coral reef close to the Yukulean shore attract thousands of tourists every year. Yukule is also known for its large oil reserves on the land and in the surrounding waters. Oil and tourism are the main sources of revenue from the Yukule area. 5. Since the 1980s, Araguaia has been contesting Risson sovereignty over the Yukule. The arguments advanced by successive Araguaian governments were based on the proximity of Yukele to Araguaias coast and the unlawful annexation of the Yukule after the Second World War. 6. In 2006, Risso began to experience energy crisis because the state owned power company, Risso Electric Company (RECO), was unable to import sufficient quantities of oil and natural gas. In 2006, a global financial crisis led to a decline in demand for Risso comodities; accordingly its economy contracted significantly. The following year, unemployment reached 23 percent. Marine Seismic Surveys 6. In December 2007, Risso granted permission to RECO to begin exploration for hydrocarbon reserves within Yukule. In mid-December 2007, RECO used 20-gun arrays to search for natural gas and oil reserves. 7. In July 2008, EcoFin, an international non-governmental organization, reported that its data suggested that the sounds associated with airguns were causing short-beaked common dolphins (Delphinus delphis) and pilot whales (Globicephala macrorhynchus) to avoid the areas where hydrocarbon activities were being conducted. Risso and RECO dispute these findings. 8. On 28 August 2008, the following diplomatic note was forwarded to the government of Risso:

The Embassy of Araguaia presents its compliments to the Government of Risso and has the honor to request that the Republic of Risso enter into consultations

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with the Republic of Araguaia concerning the effect of noise pollution from the Risso Electric Companys (RECOs) hydrocarbon exploration activities. The Government of the Republic of Araguaia notes that the noise associated with airguns is having a significant adverse impact on a number of marine species, including especially dolphins that travel between the exclusive economic zones of our two nations. The Government of the Republic of Araguaia is particularly concerned about the economic impact that these activities may have on its eco-tourism industry. It is observed that the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) requires the Republic of Risso to conduct an environmental impact assessment (EIA) for activities listed in Appendix 1, including [o]ffshore hydrocarbon production. RECOs activities fall within this category, and thus an EIA should have been prepared prior to the authorization of the airgun activities. These hydrocarbon production activities should cease pending the preparation of an EIA that considers the impacts of noise pollution on marine mammals. The Government of the Republic of Araguaia did not receive proper notice in accordance with Article 3 of the Espoo Convention. Because of the transboundary impact of the noise pollution, the Government of the Republic of Araguaia invokes Article 3, paragraph 7, of the Espoo Convention as a prelude to appropriate consultation. The Government of the Republic of Araguaia welcomes the opportunity to discuss these matters at the highest levels. Please accept the assurance of my highest consideration. s/ Gualterio Silvio Ambassador

9. On 15 September 2008, the following diplomatic note was forwarded to the Government of the Republic of Risso:

The Embassy of the Republic of Araguaia presents its compliments to the Government of the Republic of Risso and has the honor to acknowledge receipt of the diplomatic note dated 28 August 2008. As an initial matter, the Government of the Republic of Araguaia appreciates the concerns of the Government of the Republic of Risso over the perceived impacts of marine seismic surveys. The Government of the Republic of Araguaia notes, however, that the marine seismic surveys undertaken entirely within the Republic of Araguaias exclusive economic zone are not activities listed in Appendix I of the Espoo Convention. Marine seismic surveys are exploration activities; they are not hydrocarbon production. The amendment to Appendix I, which the Republic of Risso has ratified, further clarifies what is meant by hydrocarbon production: Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 metric tons/day in the case of petroleum and 500,000 cubic metres/day in the case of gas. To date, the surveys have not led to the extraction of petroleum or natural gas.

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xxx

Furthermore, we are obliged to point out that the Republic of Araguaia has recently been unable to import sufficient quantities of oil and natural gas. The Republic of Araguaia is committed to energy independence. Any interference with this objective must be Viewed as prejudicial to our national security.

xxx We look forward to a continued dialogue, keeping in mind our energy and national security requirements. Please accept the assurance of my highest consideration. s/ Leandro Dimas Ambassador

10. On 10 October 2008, the Government of the Republic of Risso provided the Government of the Republic of Araguaia with a diplomatic note that stated in part:

While we acknowledge your nations energy needs, we note that the use of the Republic of Araguaias natural resources must be done in accordance with, its international obligations, including the Espoo Convention, the United Nations Convention on the Law of the Sea (UNCLOS), and the Convention on Biological Diversity (CBD). We continue to assert that RECOS actions fall under Appendix I of the Espoo Convention. The proposed amendment to Appendix I is irrelevant. It has not entered into force and, in any event, the Republic of Risso has not ratified it. Even if Appendix I is inapplicable, however, RECOs activities also trigger the need for an EIA under the general criteria in Appendix III of the Espoo Convention. The noise pollution, which travels across international boundaries. These activities pose a grave threat to valued transboundary species, such as the dolphins and whales. We also observe that UNCLOS Article 206 and CBD Article 14 reinforce the legal obligation to perform an EIA in these circumstances.

11. On 2 November 2008, the Government of the Republic of Risso responded with a diplomatic note that stated in part:

It is unlikely that RECOS seismic surveys are causing any significant adverse transboundary impacts to short-beaked dolphins. Indeed, it is more likely that the whale watching vessels, through noise production and chase tactics, have a greater impact on marine mammals.

xxx

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We decline to prepare an EIA under the Espoo Convention for several reasons. First, the survey activities do not constitute hydrocarbon production (extraction activities). Second, the surveys are conducted by two vessels and are relatively modest in size; thus, they do not fall under Appendix IIIs criteria. Finally, even if the survey activities did require an EIA, RECO has undertaken mitigation measures beginning on 1 April 2008. When commencing the survey activity, the intensity of the airguns is slowly ramped up. The survey begins with the firing of a single airgun (the smallest airgun in terms of energy output and volume). Additional airguns are gradually activated over a period of 20 to 40 minutes until the desired operating level of the airgun array is reached. These steps reduce any alleged impacts below the significant level.

12. While RECO continued to conduct marine seismic surveys, the Republic of Araguaia and the Republic of Risso continued discussing the matter at the diplomatic level. The Republic of Araguaia continued to request the cessation of marine seismic surveys until an EIA examining the impact to marine species (and the beaked whale in particular) was prepared. 13. On 15 January 2009, a mass stranding of short-beaked dolphins and one pilot whale occurred in the territory of the Republic of Risso. The ceteceans were stranded on Rissos shoreline, approximately twenty kilometers south of the border of the Republic of Araguaia. Although environmental authorities from the Risso Ministry of the Environment attempted to rescue the dolphins and whale and transport them to deeper waters, all thirteen died. Autopsy results were inconclusive. 14. On 20 January 2009, the Government of the Republic of Araguaia provided the Government of the Republic of Risso a de'marche that stated in part:

The Republic of Araguaia deplores the reckless indifference displayed toward the impacts associated with RECOs activities. RECO had conducted surveys with 20-gun arrays in this area the previous week. Obviously, there is a connection between the intense noise pollution and the mass strandings. The Republic of Risso has failed to abide by its treaty obligations. It has still not prepared the ETA required by the Espoo Convention. The energy introduced into the marine environment by the airguns constitutes pollution under UNCLOS Article 1(4). The actions violate CBD Article 3s requirement to avoid transboundary harm. Furthermore, the Republic of Rissos actions and inactions are a clear breach of the precautionary principle. Because much is unknown about short-beaked dolphins, the precautionary principle dictates that RECO halt its actions pending further study.

15. On 2 February 2009, the Government of the Republic of Risso responded with a diplomatic note that stated in part:

As regrettable as the mass strandings were, we note that there is no specific evidence that establishes that RECOs marine seismic surveys caused the strandings. Chronology does not establish causation, and correlation does not imply causation. Moreover, the whales beached themselves on the territory of the Republic of Risso; thus, there is no transboundary impact. To attempt to alleviate such concerns, however, the Republic of Risso has taken the additional step of requiring that all survey vessels have an on-board observer

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and the airguns may not used when a whale is spotted within 500 meters of the vessel. The Republic of Risso takes its international legal obligations very seriously. We have not breached any obligation imposed by UNCLOS or CBD. Indeed, those treaties recognize the Republic of Rissos right to explore and exploit its natural resources. We also strongly dispute that we have acted inconsistently with any customary international law obligations. Consider, for example, the precautionary approach as enshrined in Principle 15 of the Rio Declaration:

In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

The Republic of Araguaia reads into this general principle duties that simply do not exist. To the extent that there may be a violation of an obligation (which we most certainly do not concede), any such action is excused under the doctrine of necessity. As the ICJ recognized in Gabczkovo-Nagymaros Project (Hungary/Slovakia), the state of necessity is a ground recognized by customary international law for precluding the wrongfulness of an act not in conformity with an international obligation. To be sure, necessity may be properly invoked only on an exceptional basis. The worst economic conditions since the 1930s present such an exceptional case.

16. On 15 February 2009, in accordance with Article 3, paragraph 7, of the Espoo Convention, the Republic of Araguaia and the Republic of Risso submitted to an inquiry commission the question of whether RECOs activities in the Yukule had resulted or were likely to result in significant adverse transboundary impacts. 17. On 15 April 2009, the inquiry commission presented its final opinion. One member found that RECOs activities were likely to have caused and were likely to continue to cause significant adverse transboundary impacts because of the effect on short-beaked dolphins. One member found that RECOs past activities were not likely to have caused any significant adverse transboundary impacts, and similar activities proposed for the future similarly would not likely cause any significant adverse transboundary impacts. The third member found that although RECOs activities may have caused significant adverse transboundary impacts in the past, the mitigation measures now in force make it unlikely that such impacts would occur in the future. 18. In a public statement, the Prime Minister of the Republic of Araguaia expressed disappointment at the inquiry commissions final opinion, stating that it is inconceivable to me that an inquiry member could find that mitigation measures that did not prevent mass strandings were somehow dispositive. She further reported that the Republic of Araguaia would continue to review all its legal options, specifically referencing Article 2, paragraph 10, of the Espoo Convention, which states that provisions of this Convention shall not prejudice any obligations of the Parties under international law with regard to activities having or likely to have a transboundary impact.

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19. Meanwhile, in January 2008, Araguaia was struck by a political crisis which led to large-scale civil unrests against the Moiss government. In order to divert the populations resentment towards the government, Admiral Blas suggested to the Crisis Military Commission to take control of the Yukule Archipelago. On 4th February 2008, the Araguaian Armed Forces invaded Yukule and quickly gained control of Yukon. 20. On 10th February 2008, a Military Administration was established to govern Yukele directly under the supervision of the Crisis Military Commission. However, there was continued local resistance to Araguaias rule. Inhabitants and the remaining members of the Risson armed and police forces on Yukele formed a resistance militia, led by Colonel Spartan from the Risson army. The militia mostly used naval guerilla tactics. Meanwhile, Risso promoted Spartan to Major General, and instructed him to drive the invaders out of Yukule. Risso was the main source of military supply to the resistance. 22. Facing an increasingly volatile situation in Yukule, on 1st July 2008, the Military Administration established check-points in key areas of Yukele. On several occasions, fishing boats were caught transporting weapons and explosive devices to Yukule. Araguaian vessels also suffered from surprise attacks launched from Risson fishing boats. 23. With a view to securing Yukule, Blass Military Administration that all foreign vessels entering a maritime control zone around Yukule had to request permission from the military administration. Araguaia vessels routinely patroled Yukule to deter fishermen from entering. In one incident, a boat that entered the maritime control zone was fired upon causing the death of a fisherman. Risso Daily News reported the incident and accused Araguaia patrol of reckless use of force against a civilian. 24. During the following months, both Araguaia and Risso reported intermittent skirmishes around Yukule. By the end of 2009, hostilities escalated prompting Araguaia to tighten its control over Yukule, shooting unauthorized movement along the coasts. As a result, a group of fishermen were stranded on one of the island without food. 25. On 15th April 2010, ten NGOs (eight from Risso and two from Araguaia) decided to form a coalition under the name of Yukule Humanitarian Movement (the Movement). The Movement was led by the Risson NGO Divinity Fighters, whose chairman was Mr Jose Burgos. Divinity Fighters was listed by several countries as a terrorist group. Other members of the Movement included the Araguaian NGO Yukule Watch. 26. On 30th May 2010, the Free Yukule Movement announced on its website and various social media that it had chartered a Inia-registered merchant vessel, Nirvana, to deliver humanitarian packages to civilians stranded in Yukule. The stated aim was to send a message of alarm to the international community by breaking the blocking line and confronting the occupying invaders. The Risson government expressed support for the just cause of the Movement. Thirty employees of a Risson private security company, Sphinx, were hired to provide escort to the convoy. All were former Risson soldiers. Jonas Borman explained it was out of security considerations that Sphinx was hired. Operation Maelstrom 27. Meanwhile, Admiral Blas received intelligence that the Nirvana was also carrying a stock of weapons, notably rifles, ammunition and grenades. He soon established a commando of 60 marines to deal with the potential threat. The operation was named Maelstrom. Blas appointed

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Commander Tagle to lead operation. During a predeployment briefing, Tagle instructed the marines that the inviolability of the Maritime Control Zone should under no circumstances be compromised. 28. When Nirvana was 40 nautical miles away from the maritime control zone, its master was radioed that approaching Yukule was not authorized. Despite, repeated warnings, Nirvana kept on its course. When it was 24 nautical miles from the maritime control zone, Tagle issued a final warning through the radio that all available measures would be taken to prevent unlawful entry. Araguaia naval patrol boats fired warning shots towards Nirvana. Nirvana turned around to avoid an armed encounter. 28. Operation Maelstrom drew international condemnation. Demonstrations were held in major cities in Risso to pressure the government to take real actions against Araguaia. In a press conference, the Risson President denounced Operation Maelstrom as serious violation of international humanitarian law for preventing humanitarian aid. Faced with international pressure, Araguaia conducted inquiries into Operation Maelstrom. Araguaian Ministry of Defense concluded that Operation Maelstrom was conducted lawfully on the grounds of national security and self-defense. The conclusions of the Araguaian report were met with skepticism. Risso, Inia and various other countries called the inquiry a sham. Oil Spills and Oil Fires 29. Following the post-Nirvana demonstrations and the weakening of Araguaias government, the Risson government decided that time had come to recapture Yukule. On 25th August 2010, a Risson naval task force set sail for Yukule. On 17th September, Risso launched an intensive air campaign against the Araguaian land and naval forces in Yukule, while the Risson navy engaged Araguaian navy on the seas. 30. On 20th September 2010, the commander of the Araguaian fleet, Rear Admiral Freeman, reported to Admiral Blas that he was unable to stop the advancement of the Risson Navy. Admiral Blas told Freedman to resort to all resources available to stall the enemy. In the ensuing days, several pro-government magazines stated that the Risson government should re-consider any attempt to disrupt Araguaias sovereignty over Yukule, which would only lead to unforeseen consequences. 31. On 24th September 2010, Captain Barret, after consulting Rear Admiral Freeman, ordered to open the valves of an offshore oil platform (oil rig) operated by a Risso-registered company, while Araguaias ships moved eastward towards the Araguaian coast. Also, three Aragua resgistered oil tankers also started to discharge oil into the same sea area. 32. The Risson naval forces were slowed down by the oil slicks offshore Yukule, but on 15th October, the Risson forces managed to occupy the southern parts of Yukule. The positions in the southern part of Yukule were poorly defended, so the Risson forces rapidly started to make their way towards the north. 33. On 16th October 2010, Admiral Blas told the Araguaian paper Hashtag Daily that the Risson attacks would only lead to the destruction of Yukule. Admiral Blas told Captain Barret to take all measures possible to stop the advancement of the Risson forces. On the same day, large oil storage tanks on the oil rig, burst into huge fires (approx. 60 million litres of oil were stored on the site). Araguaian soldiers in Yukule retreated to the mainland.

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34. The oil rig and the surrounding areas were awash in smoke, soot and ash. Also a large amount of the oil found its way into the sea. As the site was surrounded by mines placed by Araguaian navy, access was difficult and dangerous for firefighters and civil defence personnel. It took 10 days to get the fires under control, by then, several million litres of oil had already been released into the sea. 35. In January 2011, United Nations Environment Programme (UNEP) pointed out that the oil spills could have a major effect on the massive reef habitation offshore Yukule. According to UNEP, certain habitations of coral reefs were extremely susceptible to hydro carbon pollution. Thousands of birds in the region were found dead. Marine turtles, which use the Yukule Archipelago as nesting sites, were also endangered. 36. Meanwhile, Dr Pecina from the Inian Meteorology and Environmental Protection Administration assured the public that the damage to the marine environment in the region was not devastating, but added that it might take a few years for the environment to return to its former state. In June 2011, prominent public health experts attending an international conference projected that the air and maritime pollution in the aftermath of the war would spread throughout the states bordering the middle sea. 37. In November 2013, a study on coral reefs offshore Yukule was concluded by a joint team consisted of members from national science institutes of Araguaia, Risso and Inia. Two-way analysis of variance between those oiled and non-oiled reefs off Yukulean coastline showed no significant differences for either species or families. 38. In view of the international community's concern over the ongoing conflict between Araguaia and Risso and its impact on the maintenance of international peace and security, the United Nations Security Council convened an emergency meeting on 2 December 2013 and adopted Resolution 1279 calling upon all parties to the conflict to put an end to the hostilities immediately. Under the pressure of foreign governments threatening the adoption of economic sanctions against the country, Araguaia and Risso however agreed that the allegations of violations of international law be referred to a Special International Tribunal (SIT). On 25 August, the Security Council adopted Resolution 1280 which established the SIT. 39. Under the Statute of the SIT, the Tribunal has jurisdiction to cases cognizable before the ICJ and ICC, and adopts by reference the relevant treaties therefor when resolving diputes involving responsibility of states and individual criminal responsibility, respectively. The Tribunal is authorized to rule on the issues submitted on the basis of treaty, customary international law, and generally acccepted principles of law. 40. The Republic of Araguaia opposes the claim under paragraph 41 and seeks an order declaring that Risso violated international law with respect to the seismic surveys, and that Pnfilo Blas is not criminally responsible for the war crime of intentionally launching an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated relative to the oil spills. 41. The Republic of Risso opposes the claims under paragraph 40 and seeks and order declaring that Risso did not violate international law with respect to the seismic surveys, and that Pnfilo Blas is criminally responsible for the war crime of intentionally launching an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the

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natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated relative to the oil spills. Participation to Treaties: At all material times Araguaia and Risso are state parties to the following:

United Nations Charter

1949 Geneva Conventions and their 1977 Additional Protocols I & II

1969 Vienna Convention on the Law of Treaties

1976 UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques

1982 UN Convention on the Law of the Sea

1998 Statute of the International Criminal Court

Convention on Environmental Impact Assessment in a Transboundary Context

Convention on Biodiversity At all relevant times Araguaia is a state party to the following:

Convention on the Conservation of Migrant Species of Wild Animals

Convention on International Trade in Endangered Species of Wild Fauna and Flora Both parties participated in the following:

1972 United Nations Conference on the Human Environment

1992 United Nations Conference on Environment and Development Special Instructions

1. The foregoing are the agreed facts between the parties. You may make reasonable inferences thereof.

2. Limit discussion to the two main submissions. 3. Submissions/contentions on jurisdiction or on procedure are not allowed.