INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE THE HAGUE, THE NETHERLANDS THE CASE CONCERNING OIL POLLUTION IN THE MARINE ENVIRONMENT

Transcription

1 Team 1133 R INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE THE HAGUE, THE NETHERLANDS THE CASE CONCERNING OIL POLLUTION IN THE MARINE ENVIRONMENT THE FEDERAL STATES OF ALBACARES (APPLICANT) v. THE REPUBLIC OF REPELMUTO (RESPONDENT) MEMORIAL FOR THE RESPONDENT 2011

2 Team 1133 R I. TABLE OF CONTENTS I. TABLE OF CONTENTS... i II. INDEX OF AUTHORITIES... iv III. STATEMENT OF JURISDICTION... v IV. QUESTIONS PRESENTED... vi V. STATEMENT OF FACTS... vii VI. SUMMARY OF ARGUMENTS...x VII. ARGUMENTS 1. TREATY OBLIGATIONS: THE REPUBLIC OF REPELMUTO ACTED CONSISTENTLY WITH ITS CUSTOMARY INTERNATIONAL LAW AND TREATY OBLIGATIONS...1 A. The Republic of Repelmuto did not ratify the UNCLOS and is therefore not bound by its provisions...1 B. The Republic of Repelmuto protected the marine environment in the Gulf of Sedna in accordance with Customary International Law...2 C. MARPOL is not applicable to pollution discharged from oil platforms STATE RESPONSIBILITY: THE REPUBLIC OF REPELMUTO WAS NOT RESPONSIBLE FOR THE OIL SPILL IN THE GULF OF SEDNA...4 A. The Oil Spill in the Gulf of Sedna was solely caused by the negligence of Fahy Oil Company...4 i. Fahy Oil was not acting under the direction or control of the Republic of Repelmuto...5 i

3 ii. Fahy Oil should be held liable for the injuries suffered by the Federal States of Albacares as a result of the oil spill...6 B. The Republic of Repelmuto established appropriate legislative and administrative safeguards to regulate its oil industry...6 i. The requirement of both a Dead Man switch and hard-wired controller was sufficient to prevent the occurrence of the oil spill in the Gulf of Sedna...6 ii. Repelmuto complied with its obligation to protect the environment by establishing the MEA as a regulatory body...7 C. The actions of the MEA did not amount to a breach of the Republic of Repelmuto s International Obligations...8 D. The Republic of Repelmuto acted in accordance with its obligation to control the sources of pollution within its jurisdiction STATE ACTION: THE USE OF CHEMEX-5000 WAS THE MOST APPROPRIATE MEASURE TO STOP THE OIL SPILL AND DID NOT VIOLATE REPELMUTO S INTERNATIONAL OBLIGATIONS...9 A. Repelmuto s use of ChemEx-5000 as a precautionary measure was necessary given the gravity of the threat posed by the oil spill in the Gulf of Sedna...9 i. The threat posed by the oil spill to the Gulf of Sedna was sufficiently severe to allow the application of the precautionary principle...10 ii. The threat posed to the Gulf of Sedna by the use of ChemEx-5000 was scientifically uncertain and therefore allowed the application of the precautionary principle...11 ii

4 B. The use of ChemEx-5000 was proportionate to the threat posed to the eco-system of Repelmuto and Albacares COMPENSATION: THE REPUBLIC OF REPELMUTO IS NOT LIABLE TO COMPENSATE THE FEDERAL STATES OF ALBACARES...12 A. The Republic of Repelmuto has never committed to compensating the Federal State of Albacares for the damage suffered as a result of the oil spill...12 i. The statements of President Kempii do not amount to a unilateral declarations binding upon the Republic of Repelmuto...12 ii. The diplomatic notes sent by the Republic of Repelmuto to the Federal States of Albacares did not disclose an intention to provide compensation...14 B. The oil spill was not the only cause of damage to the coastal region of the Federal States of Albacares...15 C. The courts of Repelmuto have the exclusive jurisdiction to determine the issue of compensation for damages suffered as a result of the oil spill which occurred in the Gulf of Sedna...15 i. The Repelmutan courts have sole jurisdiction over wrongful acts committed within the Republic of Repelmuto by one of its nationals...15 ii. The Federal States of Albacares failed to exhaust its local remedies...16 VIII. CONCLUSION AND PRAYER OF RELIEF...18 iii

5 II. INDEX OF AUTHORITIES A. TREATIES AND CONVENTIONS Convention on Biological Diversity, 31, I/L/M. 818 (1992)...ix, 7 Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S 3...ix,1, 2, 6, International Convention on Civil Liability for Oil Pollution Damage (1969)...6 International Convention for the Prevention of Pollution from Ship (MARPOL), 1973, as modified by the Protocol of ix Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S B. U.N DOCUMENTS Draft Articles on Responsibility of Sates for Internationally Wrongful Acts with Commentaries, United Nations Treaty Collection, Treaty Reference Guide, Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/58/83/Annex (2002) Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/26 (1992)...2,3,9 Resolution on Permanent Sovereignty over National Resources G.A.Res (XVII) 1962, para 4; 17 UN GAOR Supp (No.17)...16 Stockholm Declaration on the Human Environment, U.N. Doc.A/CONF.48/14/ Rev. 1(1973)...2,3 C. CASES AND REPORTS Advisory Opinion in the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Reports 226, at para iv

6 Asylum Case (Columbia v. Peru) ICJ Reports, 1950, Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali) Judgment of 22 December 1986, I.C.J. Reports 1986, p. 573, para ,14 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) ICJ Reports 1986, , 14 Corfu Channel Case (UK v. Albania) ICJ Reports, 1949, 4...5, 9 Factory at Chorzów (Claim for Indemnity) Case (Germany v. Poland) PCIJ Ser. A(1928)...15 Fairén-Garbi and Solís-Corrales v. Honduras, 1987 Inter-Am. Ct. H.R. (ser. C) No.2, 85 (June 26, 1987)...16 Leatch v. National Parks and Wildlife Service (1993) 81 LGERA 270 at Legal Status of Eastern Greenland (Denmark v. Norway) 1933 P.C.I.J Reports Series A/B No Libya-Malta Continental Shelf Case, ICJ Reports, Monsanto Agricoltura Italia v Presidenza del Consiglio dei Ministri, European Court of Justice, Case C-236/0 (13 March 2003) North Sea Continental Shelf Cases ICJ Reports, 1969, pp.3, 25; 41 ILR, pp 29, Nuclear Tests Case (New Zealand v. France) 1974 I.C.J. 457 General List No. 59 December 20, The Interhandel Case (Switzerland v. United States), judgment of 21 March Trail Smelter Arbitration (US v. Canada) 3 RIAA, (1941) , 7 Telstra Corporation Ltd v. Hornsby Shire Council (2006) NSWLEC ,11 U.S. Diplomatic And Consular Staff in Tehran Case (US v Iran) ICJ Reports 1980,3.8 D. SCHOLARLY WRITINGS Birnie & Boyle, International Law and the Environment 110 (2002)...2, 8 Halsbury s Laws of England/Negligence (Volume 78(2010) 5 th Edition)/3...4, 8 v

7 Kathleen Morris, The Emergence of Customary International Law Recognizing Corporate Liability for Violations of International Human Rights and Environmental Law, Gonzaga Journal of International Law...6 Shaw, International Law, 576 (2008)...15 E. MISCELLANEOUS Guiding principles Applicable to Unilateral Declarations of States, capable of creating legal obligations, with commentaries thereto (2006)...13, 14 Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management; Resolution MEPC 67(37). 11 vi

8 III. STATEMENT OF JURISDICTION Pursuant to Article 40(1) of the Statute of the Court 1, this Honourable Court has jurisdiction (ratione personae,ratione temporis, ratione loci and ratione materiae) to hear cases of a legal nature submitted to it by States. The Republic of Repelmuto and the Federal States of Albacares submit the controversy concerning the Oil Pollution in the Marine Environment for final resolution by the International Court of Justice. The parties have agreed to the contents of the Record submitted as part of the Special Agreement, which was signed on June 16, 2010 and submitted to the Registrar of the Court 2. On June 30, 2010, the Registrar addressed the notification of the parties. All parties accept the jurisdiction of this Court without reservation in accordance with article 36(2) of the Court s Statute. Any judgment will therefore be final and binding upon the parties. 1 Statute of the International Court of Justice T.S No. 993 of Record pg. 5. vii

9 IV. QUESTIONS PRESENTED 1. Whether the Republic of Repelmuto acted in accordance with its treaty obligations and customary international law. 2. Whether the Republic of Repelmuto was responsible for the oil spill in the Gulf of Sedna and its effect on the Federal States of Albacares. 3. Whether the methods used by the Republic of Repelmuto to stop the spill were reasonable. 4. Whether the Republic of Repelmuto is liable to pay compensation to the Federal States of Albacares. viii

10 V. STATEMENT OF FACTS The Federal States of Albacares ( hereinafter Albacares ) is a developing country with a population of 10 million people, concentrated along the coastline. The coastline is heavily used for commercial, sporting and subsistence fishing, agriculture and tourism. In an attempt to develop its tourism product and take advantage of its ecosystems and relatively pristine beaches, the government has subsidized the construction of hotels and beach resorts. 3 High water temperatures have contributed to a notable decline in the country s coral reefs. The Republic of Repelmuto ( hereinafter Repelmuto ) is an industrialised democracy with a population of approximately 220 million. 4 As a member of the United Nations and member of the International Maritime Organisation (IMO), it has signed the United Nations Convention on the Law of the Sea (UNCLOS). 5 It is a party to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 (MARPOL) 6 and the Convention on Biological Diversity (CBD) 7. Repelmuto has also fully participated in various UN environmental conferences between 1972 and Repelmuto relies on energy resources importing 65% of its petroleum. 9 This prompted the government to authorise the increase of oil exploration, drilling and extraction within its Exclusive Economic Zone (EEZ) in the Gulf of Sedna to become more energy independent Record 2. 4 Record 2. 5 Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S 3. 6 Record pg Record 9, Convention on Biological Diversity, 31 I.L.M. 818 (1992). 8 Record Record Record 4. ix

11 These activities are regulated by the Minerals Extraction Agency (MEA), which grants licenses to private companies. 11 On February 02, 2009, there was an explosion in the Gulf of Sedna on the Blue Ocean oil rig, owned by Fahy Oil. 12 Crude oil flowed from the broken wellhead into the Gulf. Albacares was promptly notified about the spill and kept informed about the efforts to stop it. 13 Eight days later, after initial attempts by Fahy Oil failed to halt the flow, the Repelmuto Environmental Protection Organisation (REPO) authorised the use of the chemical dispersant, ChemEx to mitigate the environmental impact of the accident. 15 On February 17, 2009, the first diplomatic note sent to Repelmuto by Albacares requested that all necessary measures to stop the oil flow be taken and the use of ChemEx-5000 halted. Ambacares also outlined the negative impact of ChemEx-5000 on its marine life. 16 Repelmuto responded on February assuring that it was taking all available actions to stop the flow. On March 10, 2009, newly elected Albacarean President Elle Kempii in a national address, stated that Fahy Oil would pay and those persons injured in Albacares would be compensated for damages incurred. 17 This was re-affirmed by the Minister of REPO one week later. On March 25, 2009, President Kempii repeated her statement in Albacarean language in a press conference Record Record Record Record Record Record Record Record 26. x

12 On July 04, 2009 Fahy Oil succeeded in halting the oil flow, after having released approximately 7,600 kilolitres of ChemEx-5000 into the Gulf of Sedna. 19 The oil spill had devastating economic and environmental effects in both Albacares and Repelmuto. 20 On August 28, 2009, a diplomatic note was sent to Repelmuto asserting that it had breached its international duty to avoid transboundary harm and requesting negotiations over compensation for damages incurred. 21 The final note from Repelmuto to Albacares on November 02, 2009 asserted Fahy Oil, which filed for bankruptcy protection, was the responsible party liable for compensation. After failed negotiations between the parties, the States submitted the case to the International Court of Justice ( hereinafter The Court ) under a Special Agreement Record Record 29, Record Record 36. xi

13 VI. SUMMARY OF ARGUMENTS The Republic of Repelmuto has consistently acted in accordance with its international obligation to protect the environment. It was not responsible for the oil spill on February 02, 2009, from the Blue Ocean oil rig owned by Fahy Oil Company. The negligence of the Fahy Oil Company was the sole cause of the injury to the marine environment shared by the Republic of Repelmuto and the Federal States of Albacares. In compliance with its international obligations, Repelmuto ensured that a regulatory and administrative framework was set up for the operation of its drilling activities. Its use of ChemEx-5000 in response to the threat posed by the oil spill was a necessary precaution and in compliance with its obligations under international law. The government of Albacares was always kept fully informed of the developments related to the scale of the threat posed by the oil leak and of the measures used to address it. The Federal Sates of Albacares is therefore not entitled to compensation from the Repelmutan government. The Republic of Repelmuto exercised its right to exploit its natural resources in furtherance of domestic economic policies whilst acting in a manner that protected its marine environment. xii

14 Team 1133 R VII. ARGUMENTS 1. TREATY OBLIGATIONS: THE REPUBLIC OF REPELMUTO ACTED CONSISTENTLY WITH ITS CUSTOMARY INTERNATIONAL LAW AND TREATY OBLIGATIONS. A State s signature is an intermediary step in the adoption of the text a treaty. 23 It is not the final expression of consent to be bound by its terms, unless otherwise intended, since this remains subject to ratification. 24 Ratification is an act by which a State signifies its agreement to be legally bound by the terms of a particular treaty. 25 The obligations placed on a State that has not ratified a treaty are different to those placed on States that have ratified treaty provisions. The sole obligation of a State that has signed a treaty is to act in good faith and refrain from acts calculated to frustrate its object. 26 A. The Republic of Repelmuto did not ratify the UNCLOS and is therefore not bound by its provisions. The Republic of Repelmuto has signed but it has not ratified the United Nations UNCLOS). 27 In the North Sea Continental Shelf Cases, 28 this Court held that a State was under no obligation to heed the terms of an unratified treaty. Consequently, the Repelmutan government is not bound by the terms of the UNCLOS. The duties placed on States who have ratified the UNCLOS should not be applied to Repelmuto. It ought not to be held liable for any perceived non-compliance with the provisions of the UNCLOS. 23 Vienna Convention on the Law of Treaties, May 23, 1969, art.11 & 12, 1155 U.N.T.S Ibid. 25 United Nations Treaty Collection, Treaty Reference Guide, supra note 23, art Supra note North Sea Continental Shelf Cases ICJ Reports, 1969, pp.3, 25; 41 ILR, pp 29, 54. 1

15 Article 194 of the UNCLOS, for example, addresses measures to prevent, reduce and control pollution of the marine environment. It imposes on States a duty to police or regulate, to the fullest possible extent, activities which may result in the pollution of the marine environment. 29 This absolute standard of care does not adequately take into account the need to balance a State s developmental goals with its duty to the environment. 30 As a result, the application of this provision would place too heavy a burden on Repelmuto s fledgling oil industry. B. The Republic of Repelmuto protected the marine environment in the Gulf of Sedna in accordance with Customary International Law. Customary International Law (CIL) is consistent and uniform usage of a rule or custom practiced by States that occurred in a manner showing a general recognition that a legal obligation is involved. 31 It is, however, found not only in the practice of States but is to be looked for in their opinio juris. 32 When applied to international environmental law, a State has a duty to use its territory in a manner that will not cause injury to the territory of another. 33 Principle 2 of the Rio Declaration 34 and principle 21 of the Stockholm Declaration 35 recognise the State s sovereign right to exploit its resources pursuant to developmental policies, once it is able to ensure that it does not cause transboundary environmental damage. In the Advisory Opinion in the Legality of the Threat or Use of Nuclear Weapons 36, this Court also recognised that the obligation placed upon States to ensure that the activities within its jurisdiction and 29 supra note 22, art.194(3). 30 Birnie & Boyle, International Law and the Environment 110 (2002). 31 Asylum Case (Columbia v. Peru) ICJ Reports, 1950, Libya-Malta Continental Shelf Case, ICJ Reports, Trail Smelter Arbitration (US v. Canada) 3 RIAA, (1941) Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/26 (1992). 35 Stockholm Declaration on the Human Environment, U.N. Doc.A/CONF.48/14/ Rev. 1(1973). 36 (1996) ICJ Reports 226, at para 29. 2

16 control respect the environment of other States is a part of the corpus of international law relating to the environment. Repelmuto s subscription to this principle is evidenced by the full participation of its high-level representatives at both the Rio and Stockholm conferences. 37 In addition, Repelmuto has enacted legislation, formulated regulations and policies to ensure compliance with this principle. The MEA was established as a regulatory body to ensure adherence to the legal framework. The requirement that oil rigs, like Blue Ocean, have hard-wired controllers and Dead Man switches was geared at ensuring that the marine environment of the Gulf of Sedna was protected in the event of any damage to the oil rig drill pipes. C. MARPOL is not applicable to pollution discharged from oil platforms. The International Convention for the Prevention of Pollution from Ships (MARPOL) 38 does not regulate oil spills arising from offshore oil-drilling facilities. Though Article 2 defines a ship as a fix or floating platform 39, the type of discharge the treaty seeks to regulate does not include the release of harmful substances directly arising from the exploration, exploitation and associated offshore processing of seabed mineral resources. 40 Consequently, although the Republic of Repelmuto is a Member State of the International Maritime Organization, the body responsible for the enforcement of the MARPOL, this treaty does not have any application to incidents like the oil spill in the Gulf of Sedna. The Federal States of Albacares have also 37 Record International Convention for the Prevention of Pollution from Ship (MARPOL), 1973, as modified by the Protocol of Id. at art Id. at Summary. 3

17 conceded that MARPOL therefore does not cover Blue Ocean, the oil rig located in the Gulf of Sedna STATE RESPONSIBILITY: THE REPUBLIC OF REPELMUTO WAS NOT RESPONSIBLE FOR THE OIL SPILL IN THE GULF OF SEDNA. A. The Oil Spill in the Gulf of Sedna was solely caused by the negligence of Fahy Oil Company. The explosion on the Blue Ocean rig on February 2 nd, 2009, and the subsequent flow of oil into the Gulf of Sedna, established a prima facie case of negligence. 42 On the evidence as it stands, it is more likely than not that the cause of the accident was an act or omission by Fahy Oil Company, as owners of the rig. Whilst MEA regulated the Repelmutan oil industry, it was not directly involved in the process of extracting oil from the seabed. This process was solely under the control of the Fahy Oil Company. 43 The company, through its workers, had been warned of its faulty safety systems in the days leading up to the explosion 44. However, they failed to take note of these warnings and also failed to ensure that the Dead Man switch was outfitted with a fully-functioning battery. 45 It is important to note that if the switch had been operational, the flow of oil from the rig would have been cut-off. The Fahy Oil Company failed to ensure that it was in compliance with the safety regulations governing the extraction of oil in the Repelmutan EEZ. As a consequence, Fahy Oil Company remains solely liable for the oil spill and the damage done to the marine environment of both the Republic of Repelmuto and the Federal States of Albacares. 41 Record Halsbury s Laws of England/Negligence (Volume 78(2010) 5 th Edition)/3. 43 Record Clarifications Answer# Record 16. 4

18 i. Fahy Oil was not acting under the direction or control of the Republic of Repelmuto. A State is not generally responsible for the conduct of private citizens or entities. However, the conduct of a person will be attributable to the State under international law if: the person or private entity is in fact acting under the direction or control of the State in carrying out the conduct; 46 or the private person or entity is acting on specific instructions of the State in carrying out a wrongful act. 47 In the Case concerning Military and Paramilitary Activities In and Against Nicaragua, 48 it was held that the conduct of a private entity can only give rise to legal responsibility on the part of the State where it had effective control of the operations in the course of which the act in question was committed. To satisfy the requirement of attribution, it is not merely sufficient that the State had overall control over the entity. 49 Fahy Oil was a company incorporated under the laws of Repelmuto. 50 The Repelmutan government, through the MEA, controlled and regulated the oil industry, in which Fahy Oil operated as a private company. It cannot be concluded from the mere fact of the control exercised by a State that the State necessarily knew, or ought to have known of any unlawful act perpetrated therein. 51 Neither the MEA nor the government was directly involved in the oil drilling process. This activity was exclusively under the control of Fahy Oil, therefore, any negligence arising there from cannot be attributed to the State. 46 Draft Articles on Responsibility of Sates for Internationally Wrongful Acts with commentaries, 2001, Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/58/83/Annex (2002), art Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. US) ICJ Reports 1986, Ibid, Record 14. supra Corfu Channel Case (UK v. Albania) ICJ Reports, 1949, 4. 5

19 ii. Fahy Oil should be held liable for the injuries suffered by the Federal States of Albacares as a result of the oil spill. Emerging CIL recognizes the international responsibility of corporations for environmental devastation violations. There is significant support for the contention that transnational corporations (TNCs) should be held liable for international environmental violations under customary international law. 52 The voluntary acceptance of code of conduct by TNCs based on international environmental law and the increasingly uniform practice of States holding corporations legally liable violations of environmental laws, further demonstrates that there is international custom regarding corporate responsibility for environmental violations. 53 Even long-standing multilateral treaties, such as the 1969 Convention on Civil Liability for Oil Pollution Damage provides that the owner of a ship (which may be a company) shall be liable for any pollution damage caused by it. 54 The UNCLOS also prohibits not only States but natural and juridical persons from appropriating parts of the seabed or its minerals. 55 This trend should be upheld by this Honourable Court considering the unprecedented economic and environmental impacts of the oil spill caused by Fahy Oil Company. B. The Republic of Repelmuto established appropriate legislative and administrative safeguards to regulate its oil industry. i. The requirement of both a Dead Man switch and hard-wired controller was sufficient to prevent the occurrence of the oil spill in the Gulf of Sedna. The two devises required by the MEA were sufficient to trigger the blowout preventer and stop the flow of oil in the event that the connection between the oil rig and the subsea unit 52 Kathleen Morris, The Emergence of Customary International Law Recognizing Corporate Liability for Violations of International Human Rights and Environmental Law, Gonzaga Journal of International Law,. 53 supra note International Convention on Civil Liability for Oil Pollution Damage (1969), art III. 55 supra note 26, art 137(1). 6

20 was severed. 56 There is no established rule of customary international law requiring the use of anything more than a Dead Man switch and a hard-wired controller. A rule or principle is only transformed into customary international law when there has been extensive and virtually uniform State practice, including that of States whose interests are specially affected 57. The use of the acoustical trigger by both Brazil and Norway, as asserted by the Albacares, 58 is insufficient evidence of extensive and uniform State practice, to transform the use of this device into customary international law. ii. Repelmuto complied with its obligation to protect the environment by establishing the MEA as a regulatory body. A State is obligated under Customary International Law to set up domestic controls to prevent environmental damage. 59 Article 6 of the Convention on Biological Diversity, requires states to implement national strategies, plans and programs to ensure the sustainable use of the environment in accordance with its particular conditions and capabilities. 60 This requirement is stated in broad terms and highlights the wide margin of discretion given to States in satisfaction of this requirement. The infancy of the Repelmutan oil industry was a condition that required the government to be more flexible in its regulatory framework. The MEA was an integral part of this system; it regulated all oil exploration, drilling, and extraction within Repelmuto. 61 Its duties also extended to the inspection of the companies operations to ensure that all laws, regulations, and policies 56 Record supra note Record Trail Smelter Arbitration (US v. Canada) 3 RIAA, (1941) supra note Record 12. 7

21 were adhered to. 62 The MEA therefore functioned as the Republic of Repelmuto s administrative arm, enforcing its legislative policies and ensuring compliance with its international obligations. C. The actions of the MEA did not amount to a breach of the Republic of Repelmuto s International Obligations. An internationally wrongful act consists of conduct which is attributable to a State and which is inconsistent with what is required of that State by one or more of the international obligations binding upon it. 63 States must take the appropriate steps to ensure domestic compliance with their international obligations. 64 Inaction by a State by itself constitutes a clear violation of its obligations. 65 Repelmuto was required under CIL to set up the necessary domestic controls to ensure the protection of the marine environment. 66 The MEA s failure to conduct rigorous inspections of rigs in the Gulf in Sedna, between and its suspected conflict of interest may be argued by Albacares as a violation of this obligation. However, following the change in government in 2008, the Repelmutan government took the appropriate steps to investigate and remedy the alleged misconduct. D. The Republic of Repelmuto acted in accordance with its obligation to control the sources of pollution within its jurisdiction. A duty is imposed on States by CIL to provide other States with notification once they become aware of imminent or actual pollution of the marine environment. 67 Article 14.1(c) of the 62 Ibid. 63 Halsbury's Laws of England/International Law Relations (Volume 61 (2010) 5th Edition)/ U.S. Diplomatic And Consular Staff in Tehran Case(US v Iran) ICJ Reports 1980, p.3 65 Ibid. 66 supra note 32 & Birnie & Boyle, International Law & The Environment, (2002) at

22 CBD, requires contracting parties to promote the notification of information on activities under their jurisdiction or control which are likely to significantly affect adversely the biological diversity of other States 68. A state is also required to respond immediately to pollution-based emergencies. Failure to do so may amount to a breach of the State s obligations under international law, even if the emergency is not directly attributable to the state s action or inaction. 69 The government of Repelmuto promptly notified the Federal State of Albacares of the explosion and subsequent oil spill aboard the Blue Ocean rig. 70 The Repelmutan government kept the Federal State of Albacares fully informed about the state of the spill, the projected flow and movement of the oil and Repelmuto s efforts to stop it. 71 The Republic of Repelmuto therefore acted in accordance with its international obligations. 3. STATE ACTION: THE USE OF CHEMEX-5000 WAS THE MOST APPROPRIATE MEASURE TO STOP THE OIL SPILL AND DID NOT VIOLATE REPELMUTO S INTERNATIONAL OBLIGATIONS. A. Repelmuto s use of ChemEx-5000 as a precautionary measure was necessary given the gravity of the threat posed by the oil spill to the gulf of Sedna. Principle 15 of the Rio Declaration allows a State to apply a precautionary approach. This may be done without delay, to protect the environment from the threat of serious harm, even where there is no scientific information. 72 The proposed measures must, however, be necessary to prevent further deterioration of the environment. The application of the 68 Convention on Biological Diversity, 31 I.L.M. 818 (1992). 69 supra note Record Ibid. 72 supra note 32. 9

23 precautionary principle is triggered by two conditions precedent: the threat of serious harm; and a lack of scientific evidence as to the effects of the methods used to address the threat. These threats are cumulative in application but once satisfied, the principle may be applied. 73 i. The threat posed by the oil spill to the Gulf of Sedna was sufficiently severe to allow the application of the precautionary principle. A threat to the environment may be considered sufficiently grave where it reaches the threshold of serious or irreversible harm. 74 This assessment of the severity of the threat posed must, however, be made on the basis of scientific evidence. 75 The evidence must be more than subjective belief or unsupported speculation. The requirement for evidence that pertains to scientific knowledge establishes a standard of evidentiary reliability. 76 Approximately thirty-five thousand (35,000) to sixty-thousand (60,000) barrels 77 of crude oil flowed into the gulf of Sedna as a result of the damage to the Blue Ocean rig. Though more precise estimates were not available 78, this quantification of the oil that threatened the marine life in the gulf, and the coast of both Albacares and Repelmuto, was sufficient scientific evidence to establish the severity of the threat posed by the oil spill. 73 Telstra Corporation Ltd v. Hornsby Shire Council [2006] NSWLEC Ibid. 75 Monsanto Agricoltura Italia v Presidenza del Consiglio dei Ministri, European Court of Justice, Case C-236/0 (13 March 2003) U.S. 579, 113 S.Ct U.S.Cal., Record Ibid. 10

24 ii. The threat posed to the Gulf of Sedna by the use of Chem-Ex 5000 was scientifically uncertain and therefore allowed the application of the precautionary principle. The second condition precedent required for the application of the precautionary principle is "a lack of full scientific certainty". That is, uncertainty as to the nature and scope of the threat of environmental damage by the proposed measure. 79 The Repelmuto Environmental Protection Organization (REPO) admitted that ChemEx 5000 had never been used at the depths required to stop the flow of oil. 80 They also acknowledged that the long-term effects on aquatic life were unknown. 81 The Republic of Repelmuto was therefore unaware of the precise nature of the damage that might occur as a result of the use of ChemEx. This, coupled with the gravity of the threat posed by the plum of oil, was sufficient to trigger the application of the precautionary principle. B. The use of ChemEx-5000 was proportionate to the threat posed to the ecosystem of Repelmuto and Albacares. A reasonable balance must be struck between the stringency of the precautionary measures and the seriousness and irreversibility of the potential threat. The degree of uncertainty must also be taken into account in this weighing process. 82 Where the relevant degree or magnitude of potential environmental damage is greater, the degree of certainty about the threat is lower Leatch v National Parks and Wildlife Service (1993) 81 LGERA 270 at Record Record Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management; Resolution MEPC 67(37). 83 Telstra Corporation Ltd v Hornsby Shire Council (2006) NSWLEC

25 The danger posed by the oil spill to the Gulf of Sedna could potentially eradicate its marine environment if left untreated and have severe long-term impact on the economy of the coastal States. The tourism industry in the Republic of Repelmuto, was hit by the closure of coastal hotels and restaurants as a result of tar balls washing ashore. 84 The local fishing industry collapsed, commercial and recreational fishing was banned and dead zones appeared throughout the EEZ. Coastal marshes died, and marine and bird nurseries destroyed 85. Every type of plant and animal life in the area had been adversely affected. On the other hand, while the effects of ChemEx-5000 were unpleasant, they were not as severe. Seven thousand six hundred (7600) kiloliters of Chem-Ex were used to stem the massive plum of oil that had threatened to swallow the Gulf of Sedna. Approximately thirty-five (35) percent of the organisms living 500 feet below the surface died 86.The use of ChemEx-5000 did not cause as much damage as the oil spill itself. Its use in the gulf of Sedna was therefore proportionate to the danger it was used to remedy. 4. COMPENSATION: THE REPUBLIC OF REPELMUTO IS NOT LIABLE TO COMPENSATE THE FEDERAL STATES OF ALBACARES. A. The Republic of Repelmuto has never committed to compensating the Federal State of Albacares for the damage suffered as a result of the oil spill. i. The statements of President Kempii do not amount to unilateral declarations binding upon the Republic of Repelmuto. A State may be bound by the unilateral statements of the members of its government, where the circumstances surrounding the making of the statement evince an intention that it 84 Record Ibid. 86 Record

26 would be bound by the terms of the declaration 87. It makes no difference whether the statement is made orally or in writing 88. In the case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), this Court was careful to point out that it all depends on the intention of the State in question. 89 Statements of President Kempii, as head of State may legitimately be viewed as declarations representing the position of the Republic of Repelmuto. A similar effect may be given to statements made by other members of the government functioning under her authority. These two types of statements, viewed as a whole, may constitute an engagement of the State. Consideration must, however, be given to the intention and the circumstances in which they were made. 90 In their communiqués with the Albacarean government, Repelmuto was careful to identify Fahy Oil Company as the party liable for the oil spill. 91 The only commitment made by the government of Repelmuto was that it would ensure that Fahy Oil Company compensated the people of Repelmuto. The statements of the President and the Minister of REPO assuring the people of Albacares that they would be compensated for the injury suffered as a result of the oil spill must be interpreted contextually. The people of Repelmuto were upset at Fahy Oil s failure to stem the flow of oil. The Repelmutan coast had also been badly affected by the spill and had even been declared a dead 87 Nuclear Tests Case (New Zealand v. France) 1974 I.C.J. 457 General List No. 59 December 20, Guiding principles Applicable to Unilateral Declarations of States, capable of creating legal obligations, with commentaries thereto (2006), principle Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), Judgment of 22 December 1986, I.C.J. Reports 1986, p. 573, para Legal Status of Eastern Greenland (Denmark v. Norway) 1933 P.C.I.J Reports Series A/B No Record

27 zone. In light of the vast devastation to its economy caused by the oil spill, Repelmuto could not have intended to make assurances of compensation to the Federal of Albacares. In these circumstances, the assurances given by the government of the Republic of Repelmuto cannot constitute a commitment by the Republic of Repelmuto to compensate the Federal States of Albacares for the damage suffered as a result of the oil spill. The Repelmutan government simply sought to officially assure the people of Albacares that they would assist in resolving the spillage and ensuring that compensation is obtained from the Fahy oil company. ii. The diplomatic notes sent by the Republic of Repelmuto to the Federal States of Albacares did not disclose an intention to provide compensation. In order to determine the legal effects of such statements, it is necessary to take account of their content, of all the factual circumstances in which they were made, and of the reactions to which they gave rise. 92 In the Military and Paramilitary Activities in and against Nicaragua and Frontier Dispute cases, the Court found nothing in the content of the declarations cited or the circumstances in which they were made from which it [could] be inferred that any legal undertaking was intended to exist. 93 The same conclusion should be drawn in this case. Repelmuto continually asserted that the statements made by its President did not create any legal obligations. After the President s statements, the diplomatic notes sent to the Federal States of Albacares, carefully explained the reasons why Repelmuto could not be held liable for the damage caused by the oil spill. The diplomatic documents clearly identified Fahy Oil 92 Guiding principles Applicable to Unilateral Declarations of States, capable of creating legal obligations, with commentaries thereto (2006), principle Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgment of 27 June 1986, I.C.J. Reports 1986, p. 132, para. 261, and Case concerning the Frontier Dispute (Burkina Faso v. Republic of Mali), I.C.J. Reports 1986, 573, para

28 Company as the party responsible. Repelmuto s only commitment was to work with the people of Albacares to ensure that Fahy Oil provided adequate compensation in accordance with the laws of Repelmuto. 94 B. The oil spill was not the only cause of damage to the coastal region of the Federal States of Albacares. An injured State is entitled to obtain compensation for the damaged caused by an internationally wrongful act committed by another State. 95 In assessing the quantum of compensation due by a State found liable, only the value of the property, rights and interests of the injured State must be taken into account. 96 As such, the Court must be mindful of the condition of the property before the damage occurred. In this case, the health of Albacares coral reefs were on the decline in recent years. 97 The extent of this decline, at the time of the oil spill, must be determined and deducted from any compensation that may be awardable to the Federal States of Albacares. C. The courts of Repelmuto have the exclusive jurisdiction to determine the issue of compensation for damages suffered as a result of the oil spill which occurred in the Gulf of Sedna. i. The Repelmutan courts have sole jurisdiction over wrongful acts committed within the Republic of Repelmuto by one of its nationals. State sovereignty within its own territorial limits is an undeniable foundation of international law. 98 Under local law, the courts of Repelmuto All wrongful acts committed 94 Record 24, 32, supra note 44, art Factory at Chorzów (Claim for Indemnity) Case (Germany v. Poland) PCIJ Ser A. (1928) No Record Shaw, International Law, 576 (2008). 15

29 within the territorial jurisdiction of a State may come before the municipal courts. Repelmuto is responsible for the conduct of law within its jurisdiction. ii. The Federal States of Albacares failed to exhaust its local remedies. The general rule of international law and long established principle of practice is that States must exhaust domestic remedies before invoking the jurisdiction of the International Court. 99 The rationale for the exhaustion rule is to afford the national courts, the opportunity to prevent or put right the alleged violations. In any case where the question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. 100 The importance of the exhaustion of domestic remedies was underscored by the Inter-American Court of Human Rights in Fairén-Garbi and Solís-Corrales v. Honduras as it allows the State to remedy the breach before it is brought on the international arena. 101 While decisions of that Court are not binding on this Court, it is submitted that it represents an accepted international legal principle and should therefore be used as persuasive authority. There were effective and available remedies available to the Federal States of Albacares. The Albacarean government had the option of requesting that the Republic of Repelmuto allowed Fahy Oil to face legal proceedings within their jurisdiction. In that case, Albacares would have been able to block Fahy Oil s assets to satisfy any plausible judgments and establish a pro-rata distribution system for the remaining funds. Any doubts about the effectiveness of the domestic remedies available to the Federal States of Albacares did not absolve it from exhausting 99 The Interhandel case (Switzerland v. United States), judgment of 21 March Resolution on Permanent Sovereignty over National Resources G.A.Res (XVII) 1962, para 4; 17 UN GAOR Supp(No. 17_, pp Fairén-Garbi and Solís-Corrales v. Honduras, 1987 Inter-Am. Ct. H.R. (ser. C) No.2, 85 (June 26, 1987). 16

30 them. Any holding by the Albacarean courts can affect the reputation of Fahy Oil for compliance with international law. 17

31 VIII. CONCLUSION AND PRAYER OF RELIEF The Republic of Repelmuto humbly requests this Honourable Court to adjudge and declare that: 1. The Republic of Repelmuto upheld its international legal obligations under the UNCLOS, CBD and customary international law; 2. The Republic of Repelmuto was not responsible for the oil spill and the effects thereof; 3. No reparation or damages are to be paid to the Federal States of Albacares. 4. Each party pays their own costs. Respectfully Submitted Agents for the Respondents 18