IN THE INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE THE HAGUE, NETHERLANDS QUESTIONS RELATING TO OCEAN FERTILIZATION AND MARINE BIODIVERSITY

Transcription

1 TEAM 1748A IN THE INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE THE HAGUE, NETHERLANDS QUESTIONS RELATING TO OCEAN FERTILIZATION AND MARINE BIODIVERSITY The Federal States of Aeolia, Applicant, v. The Republic of Rinnuco, Respondent. MEMORIAL OF THE FEDERAL STATES OF AEOLIA 2016

2 TABLE OF CONTENTS TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii STATEMENT OF JURISDICTION...1 QUESTIONS PRESENTED...3 STATEMENT OF FACTS...4 SUMMARY OF ARGUMENTS...5 ARGUMENTS...6 I. How inappropriate to call this planet Earth when it is quite clearly ocean : The damaging and polluting effects of ferrous sulfate ocean fertilization on the high seas caused by Rinnuco s dumping project constitutes a violation of Rinnuco s treaty obligations under UNCLOS... 6 II. III. IV. Give me half a tanker of iron, and I ll give you an ice age : The deleterious impact of ocean fertilization on narwhals violates Rinnuco s obligations under the CBD The Lack of an Applicable Treaty Does Not Constitute Lawlessness; Rinnuco s Dumping Violates Customary Law and the Precautionary Principle A. Customary Law: Principles of environmental protection are binding on all nations not because it [is] prescribed by any superior power, but because [respect for the environment] has been generally accepted as a rule of conduct B. The Precautionary Principle: A nation must apply precautionary measures whenever its acts would cause harm, even if the possibility or extent of the exact harm is not proven The force of the arguments militating in favour of jurisdiction is preponderant : This Court has jurisdiction over this dispute under both the CBD and UNCLOS, and may also consider violations of customary law and general principles A. The parties have satisfied the necessary prerequisites for submitting their dispute to this Court B. Rinnuco s revocation of consent to jurisdiction of this Court under UNCLOS is not effective until three months after notice is deposited with the Secretary-General of the United Nations CONCLUSION...28 SUBMISSIONS...29 APPENDICES...30 ii

3 INDEX OF AUTHORITIES Treaties and Conventions Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S , 13, 24, 26 Convention on the Environmental Impact Assessment, Feb. 25, 1991, 2161 U.N.T.S , 22 London Convention and Protocol, Resolution LC-LP.1 on the Regulation of Ocean Fertilization, LC 30/16 (2008) London Convention and Protocol, Resolution LC-LP.2 (2010) Paris Convention for the Protection of Marine Pollution, Recommendation 89/1 (June 22, 1989) Protocol to the London Convention, Nov. 7, 1996, [2006] A.T.S U.N. Framework Convention on Climate Change, June 4, 1992, 1771 U.N.T.S United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S , 7, 24, 26 UN Documents Conference of the Parties to the CBD at Its Tenth Meeting, Nagoya, Japan, Oct. 2010, X/33 Biodiversity and Climate Change, UNEP/CBD/COP/DEC/X/ Conference on the Parties to the CBD at Its Ninth Meeting, Bonn, Ger., May 2008, IX/16 Biodiversity and Climate Change, UNEP/CBC/COP/9/ Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/48/14/Rev. 1 (1973) G.A. Res. 37/7 (Oct. 28, 1982) Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (June 14, 1992) , 22 U.N. Conference on Environment and Development, Text on Protection of the Oceans, UN Doc. A/CONF.151/26 (Aug. 13, 1992) iii

4 International Court of Justice Decisions Corfu Channel (U.K. v. Albania), 1949 I.C.J. Rep. 244 (Dec. 15) Factory at Chorzów (Germany v. Poland), Merits, Judgment, 1927 P.C.I.J. (ser. A) No. 9 (Jul. 26) Fisheries Jurisdiction (UK v. Iceland), Jurisdiction, 1973 I.C.J. Rep. 3 (Feb. 2) , 15, 23 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25).. 15, 16, 23 German Interests in Polish Upper Silesia (Germany v. Poland), Jurisdiction, 1925 P.C.I.J. (ser. A) No. 6 (Aug. 25) Interpretation of Peace Treaties (Bulgaria/Hungary/Romania), Advisory Opinion, 1950 ICJ Rep. 65 (Mar. 30) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July 8) , 15 Mavromattis Palestine Concessions (Greece v. U.K.), Judgment, 1924 P.C.I.J. (ser. A), No. 2 (Aug. 30) Nottebohm Case (Liechtenstein v. Guatemala), 1954 I.C.J. Rep. 4, 110 (April 1955) Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, 1995 I.C.J. Rep Other Judicial Decisions Bluefin Tuna Case (Australia vs. Japan), Order of Aug. 27, 1999, ITLOS Rep Lac Lanoux (Sp. v. Fr.), 12 R.I.A.A. 281 (1957) The Scotia, 81 U.S. (14 Wall.) 170 (1871) Books and Treatises A. TROUWBORSI, Evolution and Status of the Precautionary Principle in International Law, in 62 INT L ENVT L L. & POL Y SERIES 285 (2002) Environmental Issues, Planning and the Political Process (Michael Clark & John Herington eds., 1988) iv

5 History and Context of the Precautionary Principle, in INTERPRETING THE PRECAUTIONARY PRINCIPLE (Timothy O Riordan & James Cameron eds.,1994) LASSA OPPENHEIM, INTERNATIONAL LAW (2d ed. 1912) MADS HEIDE-JØRGENSEN & KRISTIN LAIDRE, GREENLAND S WINTER WHALES (Jeff Higdon ed., Ilinniusiorfik Undervisningsmiddelforlag 2006) SHABATAI ROSENNE, LAW AND PRACTICE OF THE INTERNATIONAL COURT (2d ed. 1985) , 27 TANYA SHADBOLT ET AL., BREAKING THE ICE, , 11, 12 YUSUF AHMAD & GEORGE SAMMY, GUIDELINES TO ENVIRONMENTAL IMPACT ASSESSMENT (2d ed. 1999) Essays and Articles Aaron Strong et al., Ocean Fertilization: Time to Move On, 461 NATURE 347 (2009) Cortney A. Watt et al., How adaptable are narwhal?, 4 ECOSPHERE (2013) David Freestone & Rosemary Rayfuse, Ocean Iron Fertilization and International Law, 364 MARINE ECOLOGY PROGRESS SERIES 227 (2008)... 7 David VanderZwaag, The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative Tides, 33 OCEAN DEV. & INT L LAW 165 (2002) Gunther Handl, National Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 NAT. RES. J. 405 (1986) Hugh Powell, Fertilizing the Ocean with Iron, 46 OCEANUS MAGAZINE 1 (2008) , 11, 13 James Lovelock, Hands Up for the Gaia Hypothesis, 344 NATURE 100, 102 (1990)... 6 Jon Van Dyke, A Constitution for the Oceans: A Closer Look at the United Nations Law of the Sea Convention, INSIGHTS ON L. & SOC Y, Spring Kathy Burek et al., Effects of Climate Change on Arctic Marine Mammal Health, 18 ECOLOGICAL APPLICATIONS S126 (2008) Kristin L. Laidre et al., Quantifying the Sensitivity of Arctic Marine Mammals to Climate- Induced Habitat Change, 18 ECOLOGICAL APPLICATIONS S97 (2008) , 12 Martin Nweeia et al., Sensory Ability in the Narwhal Tooth Organ System, 297 ANATOMICAL RECORD 599 (2014) , 13 v

6 William Davis, What Does Going Green Mean?: Anthropogenic Climate Change, 43 GA. L. REV. 901 (2009) Reports and Whitepapers ARTIC COUNCIL ON THE CONSERV. OF ARCTIC FLORA & FAUNA, ARCTIC BIODIVERSITY ASSESSMENT 22 (Hans Meltofte ed., 2013), 11 COMM. ON THE STATUS OF ENDANGERED WILDLIFE IN CAN., COSEWIC ASSESSMENT AND UPDATE STATUS REPORT ON THE NARWHAL (2004), 12 Miscellaneous Sources Statute of the International Court of Justice , 27 Tommy Koh, President, Third U.N. Conference on the Law of the Sea, Remarks (Dec. 6, 1982), 6 vi

7 STATEMENT OF JURISDICTION The Federal States of Aeolia submitted its Application concerning the Republic of Rinnuco s ocean fertilization project dated 4 April 2016 to this Court. Rinnuco contested this Court s jurisdiction by its Preliminary Objection dated 10 May The Registrar acknowledged receipt and acceptance of the Application and Preliminary Objection on 23 June Aeolia and Rinnuco are Members of the United Nations and Parties to the Statute of this Court. Accordingly, this Court has jurisdiction rationae personae, pursuant to Article 35(1), of the Statute and Articles 93(1) and 94(1), of the Charter of the United Nations. In its Application, Aeolia invoked this Court s jurisdiction under Article 27 of the Convention on Biological Diversity (CBD) 1 and Article 287 of the United Nations Convention on the Law of the Sea (UNCLOS). 2 The Parties do not agree that this Court has jurisdiction rationae materiae. Rinnuco has consented to jurisdiction under the CBD, but not under Article 16, of the London Convention. Rinnuco claims that this Court lacks jurisdiction under the CBD and UNCLOS, because the issues in Aeolia s Application arise under the London Protocol 3 and not under the CBD or UNCLOS. Aeolia will demonstrate that its claims arise under both the CBD and UNCLOS. Rinnuco further contends that, even if this matter arises under UNCLOS, this Court lacks jurisdiction under UNCLOS, because Rinnuco revoked its consent to such jurisdiction. However, revocations under UNCLOS are ineffective until three months after a notice of 1 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD]. 2 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter UNCLOS]. 3 Protocol to the London Convention, Nov. 7, 1996, [2006] A.T.S. 11 [hereinafter London Protocol]. 1

8 revocation is deposited with the Secretary-General of the United Nations. Aeolia instituted this proceeding after Rinnuco noticed its withdrawal of consent, but before the expiration of three months. Accordingly, this Court also has jurisdiction rationae materiae under UNCLOS. The Parties agreed that the issue of jurisdiction is inextricably linked to the merits of the Application. Pursuant to Article 79, paragraph 10, Rules of Court, which requires this Court to give effect to any agreement between the parties that a jurisdictional objection be heard and determined within the framework of the merits, this Court agreed to hear the issues of jurisdiction concurrently with the merits. Regardless of this Court s ultimate ruling on the issue of jurisdiction, parties to treaties are bound to discharge their treaty obligations in good faith. Accordingly, this Memorial addresses the merits of Aeolia s claim first, before addressing the jurisdictional questions. Aeolia will establish that Rinnuco s dumping project constitutes breaches of Rinnuco s treaty obligations and violates customary international law. 2

9 QUESTIONS PRESENTED I. Whether the International Court of Justice has jurisdiction over this matter. II. Whether the Republic of Rinnuco violated international law by commencing its ocean fertilization project in the Muktuk Ocean on 5 January III. Whether the Republic of Rinnuco would violate international law by continuing its ocean fertilization project in the Muktuk Ocean. 3

10 STATEMENT OF FACTS Aeolia and the Rinnuco are neighboring states on the continent of Scheflutti on the coast of the Muktuk Ocean. Aeolia s economy relies significantly on its fishing industry and ecotourism economy. Narwhals habitate the ocean off Aeolia s coast, and are the focus of whalewatching excursions in Aeolia s ecotourism sector. Narwhals are so important to the Aeolian people and economy that Aeolians hold a festival each year to celebrate narwhals. Rinnuco dumped 15,000 kg of ferrous sulfate into the Muktuk Ocean, in violation of international law. Rinnuco hopes that dumping ferrous sulfate into the Ocean will stimulate plankton blooms, leading to reduced atmospheric carbon levels. Even if this is possible, Rinnuco s project will have disastrous effects on the marine biodiversity of the Muktuk Ocean. Rinnuco s dumping operation killed at least nine narwhals, which were recently found dead off of the continent of Scheflutti. Rinnuco s dumping will continue to kill not only narwhals, but also other marine plants and animals that inhabit the Ocean. The dumping will disrupt the food web of Aeolia s fishing industry, which forms the basis for the sustenance of Aeolia s citizens, and the narwhals that are vital to Aeolia s ecotourism industry, which forms the basis for the sustenance of Aeolia s economy. Despite Aeolia s warnings of international law violations, Rinnuco intends to continue dumping ferrous sulfate into the Muktuk Ocean. 4

11 SUMMARY OF ARGUMENTS By initiating its dumping project before the effects of large-scale geo-engineering have been studied, Rinnuco breached its obligations: (1) to ensure that the environmental consequences of its program minimize grave danger to biological diversity in the Muktuk Ocean; (2) to control, and reduce pollution under UNCLOS; and (3) to minimize the adverse impacts to Aeolia and the international community under customary law and general principles. Rinnuco has breached customary international law by initiating its ocean fertilization program and failing to take appropriate measures to ensure that irreparable harm did not occur to the shared Muktuk Ocean. Rinnuco is bound by customary international principles, most notably, the precautionary principle and the obligation to do no harm. These principles are the result of the incorporation of principles of law including good faith, diligence, and duty to avoid abuse of the law. Legality, not scientific consensus, is the basis for the Courts decision. The Court concentrates on rights and responsibilities and there is consequently varied oversight in regard to environmental impact. 5

12 ARGUMENTS [I]n the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment.... Throughout the ages, mankind has... constantly interfered with nature.... without consideration of the effects upon the environment. Owing to new scientific insights and to a growing awareness of the risks for mankind for present and future generations of pursuit of such interventions at an unconsidered and unabated pace, new norms and standards have been developed, set forth in a great number of instruments during the last two decades. Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. Rep. 7, 140 (Sept. 25). I. How inappropriate to call this planet Earth when it is quite clearly ocean : 4 The damaging and polluting effects of ferrous sulfate ocean fertilization on the high seas caused by Rinnuco s dumping project constitutes a violation of Rinnuco s treaty obligations under UNCLOS. [T]he former laissez-faire treatment of... the high seas has been replaced by a recognition of a duty to have due regard to the rights of other States and the needs of conservation for the benefit of all. Fisheries Jurisdiction (U.K. v. Iceland), Judgment, 1974 I.C.J. Rep. 3, 31 (July 25). Then-president of the Third United Nations Conference on the Law of the Sea described UNCLOS as a Constitution for the Oceans countries signed UNCLOS on the first day it was open for signature, a clear reflection of the widely acceptance of the instrument s principles. 6 UNCLOS provides a comprehensive framework for governing conduct at sea, 4 Arthur Clarke, in James Lovelock, Hands Up for the Gaia Hypothesis, 344 NATURE 100, 102 (1990). 5 Tommy Koh, President, Third U.N. Conference on the Law of the Sea, Remarks 1 (Dec. 6, 1982), see also Jon Van Dyke, A Constitution for the Oceans: A Closer Look at the United Nations Law of the Sea Convention, INSIGHTS ON L. & SOC Y, Spring See Koh, supra note 5, at 1. 6

13 including the equitable and efficient utilization of... resources, the conservation of... living resources, and the study, protection, and preservation of the marine environment Under Article 194(1), States must prevent, reduce, and control pollution to the marine environment: States shall take... all measures... necessary to prevent, reduce and control pollution of the marine environment from any source UNCLOS defines pollution broadly, to include any substance that results or is likely to result in harm to marine or human life, the hindrance of marine activities, such as fishing, and the reduction of ocean amenities. 9 Thus, the question of whether a Rinnuco s actions pollutes the marine environment does not relate to Rinnuco s actions themselves, but rather, their result. 10 Specifically, States must adopt laws to prevent, reduce, and control pollution by dumping: 11 any deliberate disposal of... matter.... contrary to the aims of [UNCLOS]. 12 Pollution is not limited to just those substances traditionally viewed as polluting, such as oil and wastewater. Disposal of any matter, whether or not it is waste, can violate UNCLOS. Although Rinnuco s dumping project arises under UNCLOS, UNCLOS does not provide specific guidance regarding ocean fertilization projects. Rather, UNCLOS provides a general legal framework, and leaves the specifics for Contracting Parties to address through 7 UNCLOS, supra note 2, preamble. 8 Id., Article 194(1) (emphasis added). 9 Id., Article 1(4). 10 See David Freestone & Rosemary Rayfuse, Ocean Iron Fertilization and International Law, 364 MARINE ECOLOGY PROGRESS SERIES 227, 229 (2008). 11 UNCLOS, supra note 2, Article 210(1). 12 Id., Articles 1(5)(a)(1) and 1(5)(b)(ii). 7

14 domestic legislation. However, other international agreements, promulgated under UNCLOS, directly address ocean fertilization. In 2008, the Parties to the London Convention and Protocol adopted LC-LP.1, 13 finding that ocean fertilization activities other than legitimate scientific research should not be allowed and should be considered as contrary to the aims of the Convention and Protocol and do not currently qualify for any exemption from the definition of dumping[.] 14 To be considered legitimate scientific research, the research proposal must have been assessed and then found acceptable under an Assessment Framework, 15 to be developed by the Scientific Groups under the London Convention and Protocol. 16 This assessment framework was established by Resolution LC-LP.2(2010), 17 and, as acknowledged by Rinnuco, not followed. 18 Resolution LC-LP.2 reaffirmed that ocean fertilization research activities constitute dumping unless they are otherwise exempted from being dumping with the process of obtaining an exemption detailed therein. 19 Since Rinnuco did not follow several necessary steps of the Framework, the project constitutes dumping under Article III.1(b) of the Convention and Article of the Protocol and is contrary to the aims of both. 13 London Convention and Protocol [LC-LP], Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, LC 30/16 [hereinafter LC-LP.1 (2008)]. 14 Id. at Id. at Id. at LC-LP, Resolution LC-LP.2 (2010) [hereinafter LC-LP.2 (2010)]. 18 Record, Pages 7 8, LC-LP.2 (2010). 8

15 Rinnuco s dumping also directly implicates the CBD. Decisions IX/16, X/33 and XI/20 20 invoke and acknowledge the work of the London Convention and Protocol in combating the devastating effects of ocean fertilization projects. Decision IX/16 calls on Parties to ensure that ocean fertilization activities do not take place until there is an adequate scientific basis on which to justify such activities... and a global, transparent and effective control and regulatory mechanism is in place[.] 21 At this time, there is no such scientific basis for Rinnuco s activities. Yet, Decision IX allows an exception for small scale scientific research studies within coastal waters and provides that [s]uch studies should only be authorized if justified by the need to gather specific scientific data, and should also be subject to a thorough prior assessment of the potential impacts of the research studies on the marine environment, and be strictly controlled[.] 22 There is no indication that this is a small scale research project; Rinnuco has not identified a need to gather specific data, and has broad, unilateral control over this Project. Furthermore, even if this project could be considered a small scale research stud[y], Rinnuco s purposes are untenable and do not fall within the exception. Under Decision IX/16, ocean fertilization projects cannot be used for generating and selling carbon offsets or any other commercial purposes[.] 23 Rinnuco s stated purposes for its dumping are, among other 20 Conference of the Parties to the CBD at Its Tenth Meeting, Nagoya, Japan, Oct. 2010, X/33 Biodiversity and Climate Change, 8(w), UNEP/CBD/COP/DEC/X/ Conference on the Parties to the CBD at Its Ninth Meeting, Bonn, Ger., May 2008, IX/16 Biodiversity and Climate Change, C.4 UNEP/CBC/COP/9/29 [hereinafter CBD Decision IX/16]. 22 Id. 23 Id. 9

16 reasons, to generate potential carbon offsets, and to stimulate fish production[,] 24 both pointing to commercial rather than purely scientific purposes. Rinnuco s Project contravenes the procedures that the Parties to the London Convention have established and that the parties to the CBD have affirmed for authorizing scientific research projects in a globally conscious manner. For this reason, Rinnuco s project constitutes dumping under Article III.1(b) of the London Convention and Article of the London Protocol, and as defined in UNCLOS. II. Give me half a tanker of iron, and I ll give you an ice age : 25 The deleterious impact of ocean fertilization on narwhals violates Rinnuco s obligations under the CBD. For many Arctic communities, narwhals satisfy cultural, social, nutritional, and financial needs. 26 Narwhals are one of three cetaceans endemic to arctic waters, 27 and are designated as Near Threatened. 28 Narwhals return to the same summering and wintering grounds each year, following specific routes that coincide with sea ice conditions. 29 The animals depend on sea ice, and changes to the pattern or timing of sea ice could affect timing of 24 Record, Page 5, Hugh Powell, Fertilizing the Ocean with Iron, 46 OCEANUS MAGAZINE 1, 1 (2008). 26 TANYA SHADBOLT ET AL., BREAKING THE ICE 2, Id. at 8 28 Id. at 10, 10 n Id. 10

17 migrations, length of feeding, fecundity, and survivorship of the species. 30 Narwhals are classified as highly dependent on sea ice throughout the year. 31 As the heading of this section suggests, dumping of ferrous sulfate, an iron derivative, can cause massive changes in ocean temperature. Large-scale iron dumping causes massive plankton blooms, 32 altering ocean temperatures in two ways. First, the plankton-choked ocean surface blocks sunlight, decreasing temperatures in lower depths. 33 Second, plankton absorb heat-trapping carbon dioxide, warming ocean surface temperatures. 34 Rinnuco s dumping project will thus alter the quality, timing, and distribution of sea ice formation on which narwhals depend. These changes affect not only discrete layers of ocean waters, but also impact circulation patterns between layers. 35 The changes will also severely decrease the area of habitat suitable for narwhals, affecting reproductive and survival rates, causing physical exhaustion as the animals search for colder waters, and increasing the risk of disease Id. at ARTIC COUNCIL ON THE CONSERV. OF ARCTIC FLORA & FAUNA, ARCTIC BIODIVERSITY ASSESSMENT 22 (Hans Meltofte ed., 2013), Science.pdf. 32 Powell, supra note 25, at Id. 34 Id. 35 Id. 36 Kristin L. Laidre et al., Quantifying the Sensitivity of Arctic Marine Mammals to Climate- Induced Habitat Change, 18 ECOLOGICAL APPLICATIONS S97, S (2008) (quantitatively establishing narwhals as one of three Arctic mammal species most sensitive to climate-induced habitat change); Kathy Burek et al., Effects of Climate Change on Arctic Marine Mammal Health, 18 ECOLOGICAL APPLICATIONS S126, S (2008) (correlating changes in sea ice with increased instances of narwhal disease). 11

18 These changes in sea ice will also reduce the availability of narwhal food sources and protection from predators. Narwhals have a specialized diet, 37 and changes to the timing of sea ice formation will alter migration patterns of prey. Narwhals will arrive in feeding grounds after their prey have left for warmer waters. 38 Also, narwhals depend sea ice for protection from predatory killer whales. 39 When killer whales are present, narwhals seek shelter in cracks in sea ice, and return back to open waters when predators retreat. 40 Thus, melting sea ice will increase exposure of narwhals to predation. Narwhals are widely recognized by their unique, spiralled tusk. 41 Narwhals are the only cetacean with such a tusk. 42 Some suggest that narwhals use their tusk to capture prey, but recent research concludes that the tusk is actually a sensory organ, used to detect changes in the chemistry of the surrounding ocean. 43 Researchers have linked changes in ocean salinity detected 37 Cortney A. Watt et al., How adaptable are narwhal?, 4 Ecosphere, at 2 (2013) (describing narwhal diet). See generally MADS HEIDE-JØRGENSEN & KRISTIN LAIDRE, GREENLAND S WINTER WHALES (Jeff Higdon ed., Ilinniusiorfik Undervisningsmiddelforlag 2006). 38 COMM. ON THE STATUS OF ENDANGERED WILDLIFE IN CAN., COSEWIC ASSESSMENT AND UPDATE STATUS REPORT ON THE NARWHAL (2004), [hereinafter COSEWIC] (describing interaction between narwhals and their prey). 39 SHADBOLT ET AL., supra note 26, at 14; HEIDE-JØRGENSEN & LAIDRE, supra note 37; COSEWIC, supra note 38, at SHADBOLT ET AL., supra note 26, at 14 15; see also Laidre et al., supra note 36, at S101 (stating that narwhals move into ice-covered waters to seek refuge from killer whales). 41 See SHADBOLT ET AL., supra note 26, at Id. 43 See generally Martin Nweeia et al., Sensory Ability in the Narwhal Tooth Organ System, 297 ANATOMICAL RECORD 599 (2014). 12

19 through narwhal tusks to changes in heart rate and other vital signs. 44 Increased amounts of sinking, decomposing plankton will futher alter the ocean s chemistry, depriving deeper waters of oxygen, and producing greenhouse gases such as methane and nitrous oxide. 45 These changes in chemistry, sensed by narwhals through their tusks, will result in adverse health impacts. At the very least, changes to the timing and pattern of sea ice will shift the natural habitat of narwhals to colder waters. The CBD requires in-situ conservation of biological diversity conservation of narwhals in their natural habitat, 46 so Rinnuco cannot evade liability simply by showing the availability of a substitute habitat. Although evidence strongly suggests that ocean fertilization will negatively impact narwhals, Rinnuco argues that there is no link between the death of the narwhals off the continent of Scheflutti, and the environmental changes spurred by Rinnuco s dumping program. Yet, a showing of adverse impact to narwhals is not required to a violation of environmental law. The CBD requires contracting parties to [i]ntroduce appropriate arrangements to ensure that the environmental consequences of its programmes... are duly taken into account[,] and to initiate action to prevent or minimize imminent or grave danger or damage to biological diversity[.] 47 Rinnuco has not complied with either of these mandates. Rinnuco has not accounted for the effects of its ocean fertilization program on narwhals, whether or not those effects negatively impact narwhal populations. 44 See id. at Powell, supra note 25, at CBD, supra note 1, art Id., art

20 III. The Lack of an Applicable Treaty Does Not Constitute Lawlessness; Rinnuco s Dumping Violates Customary Law and the Precautionary Principle. [T]he environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, (July 8). A. Customary Law: Principles of environmental protection are binding on all nations not because it [is] prescribed by any superior power, but because [respect for the environment] has been generally accepted as a rule of conduct. 48 The absence of a binding treaty does not constitute lawlessness. Breach by a state of an international obligation, regardless of its source, engages a responsibility of the state for the consequences of that breach. As outlined in Corfu Channel, 49 the entitlement to amends, or in cases of injury, reparations, is a fundamental principle of law. 50 In certain instances, even before the entry into force of a treaty, the treaty can represent a mere codification of customary law. For example, in the Fisheries Jurisdiction case, 51 the Court did not hesitate to describe the Vienna Convention as representing a codification of customary law. 52 The Court reaffirmed this view in the Gabčíkovo-Nagymaros Project case The Scotia, 81 U.S. (14 Wall.) 170, 187 (1871). 49 Corfu Channel (U.K. v. Albania), 1949 I.C.J. Rep. 244 (Dec. 15). 50 See id. at Fisheries Jurisdiction (UK v. Iceland), Jurisdiction, 1973 I.C.J. Rep. 3 (Feb. 2). 52 Id. at Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. Rep. 7, 38 (Sept. 25). 14

21 Beginning with the 1973 Stockholm Declaration, 54 UN declarations on the environment developed to include over 150 international mechanisms exemplifying state obligations under environmental law: From rather hesitant and tentative beginnings, environment law has progressed rapidly under the combined stimulus of over more powerful means of inflicting irrevocable environmental damage and an ever-increasing awareness of the fragility of global environment. Together these have brought about a Universal concern with activities that may damage the global environment which is the common inheritance of all nations[.] 55 The court concluded, [P]rinciples of Environmental Law thus do not depend for their validity on treaty provisions. They are part of customary international law. They are part of the sine qua non for human survival. 56 While Rinnuco and Aeolia have engaged in multilateral treaties, both remain bound by customary principles. Rinnuco cannot evade its international obligations while in pursuit of a goal, no matter how admirable. Although Rinnuco asserts that its dumping is lawful, conduct causing harm or injurious consequences will constitute violation of international law. 57 The source of an obligation is irrelevant if the obligation is sufficiently established. This Court may hold a state to its customary obligations even if a specific norm is not explicitly stated in treaty. For example, in Factory at Chorzów, 58 the court held that even though reparation was not provided for in the convention, it is a principle of international law that the breach of an 54 Declaration of the United Nations Conference on the Human Environment, June 16, 1972, U.N. Doc. A/48/14/Rev. 1 (1973). 55 Nuclear Weapons, 1996 I.C.J. Rep. at Id. at See Gunther Handl, National Uses of Transboundary Air Resources: The International Entitlement Issue Reconsidered, 26 NAT. RES. J. 405, (1986). 58 Factory at Chorzów (Germany v. Poland), Merits, Judgment, 1927 P.C.I.J. (ser. A) No. 9 (Jul. 26). 15

22 engagement involves an obligation to make reparation in an adequate form. Reparation is... [an] indispensable complement of a failure to apply a convention and there is no necessity to be stated in the convention itself. 59 Rinnuco s actions constitute a violation of its obligation to adhere to and apply the no-harm principle and precautionary principle. Both are recognized as customary international and as pillars of environmental law. 60 Notably, the Court has recognized customary obligations related to shared water resources, in the Gabčíkovo-Nagymaros case. 61 Rinnuco has seen large success concerning their carbon offsets and wants to continue the trend. 62 As positive as these goals are, the negative consequences are not understood. Global scholarship establishes that scientific research through large-scale ocean dumping is inadvisable because the negative consequences severely outweigh the carbon sequestration potential. 63 There has been significant movement towards imposition of a complete moratorium on ocean fertilization. 64 Absolute territorial sovereignty is eroded by the no-harm principle, and rooted in sic utere tuo ut alienum non laedas, the use of one s territory so as to avoid injury to others. A nation s sovereign discretion is tempered by principles like the duty to prevent transboundary damage, and more broadly, the prohibition of abuse by a state of rights granted by virtue of 59 Id. at A. TROUWBORSI, Evolution and Status of the Precautionary Principle in International Law, in 62 INT L ENVT L L. & POL Y SERIES 285 (2002). 61 Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. Rep. 7, 36 (Sept. 25). 62 Record, at Page 5, 12, Page 6, Aaron Strong et al., Ocean Fertilization: Time to Move On, 461 Nature 347, (2009). 64 See generally William Davis, What Does Going Green Mean?: Anthropogenic Climate Change, 43 GA. L. REV. 901 (2009). 16

23 international law. The legality of behavior cannot be determined in isolation where activities of one state affect another: A State, in spite of its territorial supremacy, is not allowed to alter the natural conditions of its own territory to the disadvantage of the natural conditions of the territory of a neighboring state. 65 Rinnuco s actions constitute breaches of custom. Rinnuco stated that its dumping project was intended to induce plankton blooms in the Muktuk Ocean, a shared body of water and a crucial resource for Aeolia and Rinnuco. Rinnuco s purpose of rigorous scientific research displays disregard of its obligation to limit the impact of its activities to prevent unintended harm to the Muktuk Ocean. Scientific goals are not a permissible defense under no-harm principles. B. The Precautionary Principle: A nation must apply precautionary measures whenever its acts would cause harm, even if the possibility or extent of the exact harm is not proven. 66 Precaution is the foundation of diligence. 67 By nature, precaution must be exercised ex ante, as a forecasting of risk. This is particularly true in ocean fertilization, which represents the fringe of accepted geo-engineering methods. The purpose Rinnuco s dumping program is to cause a significant change in the biochemistry and natural composition of the Muktuk Ocean, by targeting plankton, the foundation of the marine ecosystem. Rinnuco asserts that the environmental impacts were minimal and have not caused lasting damage. 65 LASSA OPPENHEIM, INTERNATIONAL LAW 220 (2d ed. 1912). 66 History and Context of the Precautionary Principle, in INTERPRETING THE PRECAUTIONARY PRINCIPLE 12, 12 (Timothy O Riordan & James Cameron eds.,1994). 67 David VanderZwaag, The Precautionary Principle and Marine Environmental Protection: Slippery Shores, Rough Seas, and Rising Normative Tides, 33 OCEAN DEV. & INT L LAW 165, 165 (2002). 17

24 The primary aim of the precautionary principle is best stated in the 1982 World Charter for Nature: [W]here potential adverse effects are not fully understood, the activities should not proceed. 68 In the Nuclear Tests case, in which New Zealand called on France to show evidence that its nuclear testing program would not negatively harm the environment, the Court found that a strict evaluation of impact must be pursued where activities may have a significant effect on the environment. 69 The Rio Declaration 70 obligates states to prevent transboundary damage, reaffirming states obligations to use due care and refrain from activities that pose an insurmountable risk or uncertainty. The right to exploit one s resources is coupled with a responsibility to ensure that activities... do not cause damage to the environment of other States[.] 71 Precaution has always had a significant role in the evaluation of environmental risks. Rinnuco s sovereignty over the management and use of its economic zone is tapered by an obligation to refrain from harming its neighbors or the shared resources of the Muktuk Ocean. In some cases, a state may alter shared riparian resources. In the Lac Lanoux arbitration, 72 France used the shared waters of Lake Lanoux to produce electricity, diverting small 68 G.A. Res. 37/7, 11(b) (Oct. 28, 1982). 69 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Order of 22 September 1995, 1995 I.C.J. Rep Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26 (June 14, 1992) [hereinafter Rio Declaration]. 71 Id., Principle Lac Lanoux (Sp. v. Fr.), 12 R.I.A.A. 281 (1957). 18

25 portions of water through the shared Carol River. 73 Spain argued that the diversion impaired the interests of Spanish residents. 74 France assured Spain of its comprehensive restoration plan and guaranteed that Spanish residents would be protected. 75 The tribunal held that there was no infringement of rights, because France s measures were adequate to prevent damage. 76 Rinnuco s project, unlike France s in Lac Lanoux, is on a massive scale. Also unlike France, Rinnuco has not taken appropriate precautionary measures to protect Aeolia s interests. The large-scale dumping triggers Rinnuco s precautionary obligations to Aeolia, and also Rinnuco s obligation erga omnes to the international community. Alteration of the ocean is a common concern of mankind. 77 For Rinnuco to meet its obligations to Aeolia and the international community, it must stop dumping until it can provide adequate assurance of the environmental impact, in the form of thorough scientific research, conducted in accordance with the London Protocol Assessment Framework. 78 In cases applying the precautionary principle, the burden of proof reverses; the nation intending to implement the action must show that it poses no threat to the environment. The petitioning party does not shoulder the burden of strong scientific certainty. A precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine 73 Id. 74 Id. 75 Id. 76 Id. 77 U.N. Framework Convention on Climate Change, June 4, 1992, 1771 U.N.T.S See supra Part I. 19

26 environment. 79 The precautionary principle is designed for cases like Aeolia s, where it is reasonable to conclude that damage will occur, albeit lacking scientific certainty. This is a fundamental aspect of the no-harm principles. In safeguarding marine ecosystems, the precautionary principle applies especially when there is reason to assume that certain damage or harmful effects on the living resources of the sea are likely to be caused[,]... even where there is no scientific evidence to prove a causal link. 80 The burden falls on Rinnuco to show compliance with the precautionary principle, no matter what its intended goals. In cases for which there is an obvious impact on the environment as Rinnuco intends the precautionary principle must be applied to stop activity from causing damage to other nations and shared resources. The reasoning in the Bluefin Tuna case 81 is instructive. Rinnuco s behavior is more uncertain and expansive than, for example, Japan s fishing experiments in the Bluefin Tuna case, for which the scientific research and consequences were generally assured. In the Bluefin Tuna case, there was also a fundamental disagreement between the parties over the extent of environmental risk. 82 Considering that there [was] scientific uncertainty regarding measures to be taken to conserve the stock of southern bluefin tuna and that there [was] no agreement among the parties[,] 83 the Tribunal applied the precautionary principal: [A]lthough the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should 79 U.N. Conference on Environment and Development, Text on Protection of the Oceans, UN Doc. A/CONF.151/26, ch. 17, (Aug. 13, 1992). 80 Paris Convention for the Protection of Marine Pollution, Recommendation 89/1 (June 22, 1989). 81 Bluefin Tuna Case (Australia vs. Japan), Order of Aug. 27, 1999, ITLOS Rep. 1999, p Id. 83 Id. 20

27 be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration of the southern bluefin tuna stock. 84 This Court should rule similarly in this case, and operate to halt Rinnuco s dumping for failure to take adequate precautionary measures. The preventative component is enshrined in environmental law. Although the science and technology are rapidly changing, fundamental duties remain. The Environmental Impact Assessment (EIA) requirement, for example, evidences the preventative approach. 85 An appropriate EIA necessarily includes post-assessment analysis. 86 Planning as an obligation was cemented in the Rio Declaration: Environmental impact assessment[s], as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse effect on the environment[.] 87 An EIA is a systematic, expansive, and detailed study and assessment of all impacts of an activity on the environment. 88 There are no rigid templates, and EIAs are prepared for a wide range of procedures. 89 However, an EIA does follow a generally-accepted process, including impact identification, and a decision based on the magnitude, extent, and significance of potential 84 Id. 85 See generally Convention on the Environmental Impact Assessment, Feb. 25, 1991, 2161 U.N.T.S Id., art Rio Declaration, supra note 70, Principle Id. 89 YUSUF AHMAD & GEORGE SAMMY, GUIDELINES TO ENVIRONMENTAL IMPACT ASSESSMENT 9 (2d ed. 1999). 21

28 harms. 90 The greater the uncertainty, the more mitigation measures are considered. Although Rinnuco s EIA may have been adequate, it became inadequate after the discovery of the dead narwhals. The sheer number of variables involved in dumping require extensive study and impact evaluation greater than Rinnuco has evidenced. Generally, a nation offsets its carbon footprint by lowering its emissions. But Rinnuco, which has already met its primary emission goals, has sought an unsuitable method of offsetting, rather than reducing, carbon emissions. It has presented no compelling reason to use this geo-engineering method over others, has not showed any balancing of alternatives, and has not taken measures to mitigate damage. Notwithstanding the uncertainty in Rinnuco s EIA, this Court need not determine whether Rinnuco s EIA was scientifically sound; it may hold that Rinnuco violated the precautionary principle based solely on Rinnuco s erga omnes obligations. 91 IV. The force of the arguments militating in favour of jurisdiction is preponderant 92 : This Court has jurisdiction over this dispute under both the CBD and UNCLOS, and may also consider violations of customary law and general principles. Whether or not States accept the jurisdiction of the Court, they remain in all cases responsible for acts attributable to them that violate the rights of other States. 93 States must discharge their treaty obligations in good faith. Disputes must be resolved peacefully, by means 90 Introduction: Environmental Issues, Planning and the Political Process 1, 4 (Michael Clark & John Herington eds., 1988). 91 See Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, 1997 I.C.J. Rep. 7, 36 (Sept. 25) (finding it unnecessary to determine which EIC most accurately measured potential risk and instead ruling based on state obligations). 92 Fisheries Jurisdiction (Spain v. Canada), Jurisdiction, Judgment, 1998 I.C.J. Rep. 432, 38 (Dec. 4) (citations omitted). 93 Id. at

29 agreed to by the parties. 94 The existence of jurisdiction is a question of law for the Court to decide; 95 with reference to the relevant facts, the Court must [determine] whether the force of the arguments militating in favour of jurisdiction is preponderant[.] 96 Rinnuco does not contest this Court s jurisdiction under the CBD, but rather, contends that its actions fall outside the scope of CBD 97 However, as demonstrated above, Rinnuco s actions implicate Rinnuco s treaty obligations under the CBD. Article 27, of the CBD relates to this Court s jurisdiction: When ratifying... [the CBD],... a State or regional economic integration organization may declare in writing... that for a dispute not resolved [by negotiation or mediation], it accepts.... [s]ubmission of the dispute to [this Court]. 98 Article 288, of UNCLOS also relates to this Court s jurisdiction: [This Court] shall have jurisdiction over any dispute concerning the interpretation or application of [UNCLOS and]... any dispute concerning the interpretation or application of an international agreement related to the purposes of [UNCLOS]. 99 There is a dispute between the Parties about the interpretation or application of both the CBD and UNCLOS, which the parties have been unable to resolve through other peaceful means. 94 Id. 95 Id. at Id. at 38 (citations omitted). 97 Record, Page CBD, supra note 1, art. 27(3). 99 UNCLOS, supra note 2, arts. 288(1) and 288(2). 23

30 A. The parties have satisfied the necessary prerequisites for submitting their dispute to this Court. The function of this Court is to decide disputes concerning matters of international law. 100 The Court has jurisdiction over all matters specifically provided for... in treaties and conventions in force. 101 As such, the Court must determine whether a dispute exists regarding the interpretation and application of a treaty that remains in force between parties. A treaty is in force if both litigants are contracting parties to the treaty at commencement of the case. 102 In this case, Aeolia and Rinnuco are Contracting Parties to the CBD 103 and States Parties to UNCLOS. 104 A dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. 105 A dispute between parties exists as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views. 106 The fact that a dispute exists regarding the interpretation and application of both the CBD and UNCLOS cannot be contested. Rinnuco contends that its dumping of ferrous sulfate into the Muktuk Ocean does not violate international law. 107 Following the discovery of the deceased narwhals off the coast of 100 Statute, art. 38(1). 101 Id., art. 36(1). 102 SHABATAI ROSENNE, LAW AND PRACTICE OF THE INTERNATIONAL COURT (2d ed. 1985). 103 Record, Page 4, Id. at Page 5, Mavromattis Palestine Concessions (Greece v. U.K.), Judgment, 1924 P.C.I.J. (ser. A), No. 2, at 11 (Aug. 30). 106 German Interests in Polish Upper Silesia (Germany v. Poland), Jurisdiction, 1925 P.C.I.J. (ser. A) No. 6, at 14 (Aug. 25). 107 Record, Page 10, 26(2). 24

31 Rinnuco, Aeolia has consistently maintained that Rinnuco s actions violated or will violate international law. The difference of opinion between the Parties is apparent from various diplomatic notes exchanged between the parties. 108 These notes show that the Parties have profoundly differing views regarding not only the applicability of the CBD and UNCLOS to Rinnuco s ocean fertilization project, but also the legality of Rinnuco s ocean fertilization project under the terms of the CBD and UNCLOS. As shown above, Rinnuco s actions have violated, and will continue to violate, international law, including the CBD and UNCLOS. The parties must first attempt to resolve a dispute through other peaceful means before submitting the dispute to this Court. 109 The Parties attempted to resolve the dispute through both diplomatic negotiation and mediation. 110 Despite these attempts, the Parties have been unable to resolve their dispute. Aeolia still contends that Rinnuco s ocean fertilization project violates international law, and Rinnuco disagrees. 111 Therefore, the Parties have satisfied the prerequisite procedures for alternative dispute resolution before submitting this dispute to the Court. 108 Compare Record, Page 8, 20 (noticing Rinnuco s violations of the CBD), and id., Page 11 (same), with id. Page 9, 21 (disagreeing with Aeolia s contention that Rinnuco violated the CBD, and id., Page 12 (claiming that this matter does not arise under the CBD). 109 CBD, supra note 1, art. 27; UNCLOS, supra note 2, arts. 283 and Record, Page 9, Compare id. at Page 10, 25 (requesting a determination that Rinnuco violated international law), with id. at 26 (requesting a determination that Rinnuco did not violate international law). 25

32 B. Rinnuco s revocation of consent to jurisdiction of this Court under UNCLOS is not effective until three months after notice is deposited with the Secretary- General of the United Nations. Rinnuco contends that this Court is without jurisdiction to consider disputes arising under UNCLOS because Rinnuco revoked its consent to jurisdiction. 112 Although the parties agree that Rinnuco did revoke its consent, the revocation did not divest this Court of jurisdiction because the revocation was not effective until after Aeolia instituted these proceedings. On 28 March 2016, Rinnuco noticed its notice of revocation of consent to submit disputes arising under UNCLOS to this Court. 113 However, Article 287, of UNCLOS provides that a declaration of consent to jurisdiction shall remain in force until three months after notice of revocation has been deposited[.] 114 Accordingly, Rinnuco s revocation of consent under UNCLOS was effective only on 28 June 2016, three months after Rinnuco deposited its notice of revocation. Aeolia submitted its Application, instituting these proceedings, on 4 April 2016, while Rinnuco s consent was still effective. Further, Rinnuco revoked its consent to jurisdiction only after Aeolia confronted Rinnuco with its intent to initiate proceedings in this Court. 115 It is axiomatic that the consent of 112 Record, Page Id., Page 5, 9; Clarifications, A UNCLOS, supra note 2, art. 287(6). 115 Compare Record, Page 5, 9 (noting that Rinnuco noticed its revocation of consent on 28 March 2016), with id. at Pages 9 10, 22 (noting that Aeolia requested that Rinnuco agree to submit the dispute to this Court in March 2016) and Clarifications, A13 (noting that Aeolia made such request on 21 March 2016). 26