THE PEACE PALACE THE HAGUE, THE NETHERLANDS THE CASE CONCERNING OCEAN FERTILIZATION AND MARINE BIODIVERSITY THE FEDERAL STATES OF AEOLIA (APPLICANT)

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1 Team 1771A General list no. 170 INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE THE HAGUE, THE NETHERLANDS THE CASE CONCERNING OCEAN FERTILIZATION AND MARINE BIODIVERSITY THE FEDERAL STATES OF AEOLIA (APPLICANT) V. THE REPUBLIC OF RINNUCO (RESPONDENT) MEMORIAL FOR APPLICANT

2 TABLE OF CONTENTS INDEX OF AUTHORITIES... 5 Page ABBREVIATIONS STATEMENT OF JURISDICTION QUESTIONS PRESENTED STATEMENT OF FACTS SUMMARY OF ARGUMENT ARGUMENT I. THE COURT HAS JURISDICTION ON THE ISSUE OF OCEAN FERTILIZATION PERSUANT TO ARTICLE 36(1) OF THE ICJ STATUTE

3 A. THE COURT HAS JURISDICTION RATIONE CONSENSUS TO ENTERTAIN THE DISPUTE B. THE DEPOSITION OF NOTICE OF REVOCATION DOES NOT EXEMPT THE COURT FROM EXERCISING ITS JURISDICTION ON THE MATTER II. THE COURT HAS JURISDICTION OVER ALL OF AEOLIA S CLAIMS SINCE THE SUBJECT MATTER OF DISPUTE ARISES WITHIN THE TREATIES AND CONVENTION IN FORCE TO WHICH RINNUCO AND AEOLIA ARE STATE PARTIES A. THE CONDUCT OF OFP IS WITHIN THE JURISDICTIONAL CLAUSE OF CBD PURSUANT TO ARTICLE B. THE DEPOSTION OF FFSO4 AMOUNTS TO POLLUTION BY DUMPING UNDER UNCLOS AND THREATENS THE MARINE ENVIRONMENT OF MUKTUK OCEAN

4 III. AEOLIA S CLAIMS CONCERNING OCEAN FERTILIZATION PROJECT AND MARINE ENVIRONMENT PROTECTION ARE ADMISSIBLE BEFORE THE COURT A. THERE IS A PRESENCE OF LEGAL DISPUTE BETWEEN AEOLIA AND RINNUCO B. NEGOTIATION AND MEDIATION PROCEDURES HAVE FAILED TO SETTLE DISPUTE BETWEEN RINNUCO AND AEOLIA C. THERE IS A PRESENCE OF LEGAL INTEREST OF AEOLIA IV. RINNUCO HAS VIOLATED INTERNATIONAL LAW BY CONDUCTING THE OFP IN THE MUKTUK OCEAN A. RINNUCO HAS FAILED TO TAKE PRECAUTIONARY APPROACH FOR OFP BY NOT CONDUCTING AN APPROPRIATE IMPACT ASSESSMENT PROCEDURE AS PER ARTICLE 14(b) OF CBD

5 B. THE CONDUCT OF OFP BY RINNUCO IS IN VIOLATION OF PRINCIPLE NOT TO CAUSE TRANSBOUNDARY HARM MANDATED BY CBD, UNCLOS AND CUSTOMARY INTERNATIONAL LAW V. RINNUCO IS UNDER OBLIGATION TO ABANDON THE PLANNED OFP SINCE IT IS AN INTERNATIONALLY WRONGFUL ACT A. DUTY TO PROTECT MARINE ENVIRONMENT IS AN OBLIGATION ERGA OMNES B. RINNUCO S CONDUCT OF OFP CANNOT BE JUSTIFIED UNDER NECESSITY CONCLUSION

6 INDEX OF AUTHORITIES Books Page(s) Philippe Sands, Principles of International Environmental Law. (2nd ed. 2003) The Statute of The International Court of Justice; A commentary (Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian J. Tams eds.,oxford Commentaries on International Law 2nd ed.) (2012) Vienna Convention on the Law of Treaties A Commentary (Oliver Dorr, Kirsten Schmalenbach eds.) (2012) Christina Verones & SA Sebastian, The Public International Law Study Guide for Students: Exercises and Answers (July 18, 2014)

7 Articles and Journals Bakker D.C.E., Storage of Carbon Dioxide by Greening The oceans? In: The Global Carboncycle: Integrating Humans, Climate and The Natural World (C.B. Field & M.R. Raupach.eds 2004) Climate Change Geo-engineering: Philosophical Perspectives, Legal Issues, and Governance Frameworks (Wil C. G. Burns, Andrew l. Strauss eds., Jul.22, 2013) David Freestone & Rosemary Rayfuse, Ocean Iron Fertilization and International law (2008) Michelle Allsopp, David Santillo & Paul Johnston, Greenpeace Research Laboratories Technical Note, A Scientific Critique Of Oceanic Iron Fertilization As A Climate Change Mitigation Strategy (Sept. 2007) Murky Waters, Ambiguous International Law For Ocean Fertilization And Other Geoengineering (Jun.30, 2016) Xue Hanqin, Transboundary Damage In International Law (2003)

8 Resolutions and Decisions Convention on Biological Diversity Decision XI/20 adopted by Conference of the Parties at its eleventh meeting, (5 Dec., 2012) The Future We Want, G. A. Res. 66/288, U.N. Doc. A/RES/62/288 (July. 27, 2012) Declaration on the Right to Development, G. A. Res. 41/128, U.N. Doc. A/Res/41/128 (Dec. 4, 1986) Oceans and the law of Sea, G. A. Res. 62/215, U.N. Doc. A/Res/66/215 (Dec. 22, 2007) Responsibility of States for internationally wrongful acts, G.A.Res. 56/83, (12 Dec. 2001) LC 35/15 Res. LP.4(8) on the amendment to the London Protocol to regulate the placement of matter for ocean fertilization and other marine geo-engineering activities adopted by The Eight Meeting of the contracting parties to the 1996 protocol to the convention on the prevention of marine pollution by dumping of wastes and other matter 1972., (18 Oct. 2013)

9 Resolution LC-LP.1(2008) on the regulation of ocean fertilization, adopted by The Thirtieth meeting of the contracting parties to the London Convention and the third meeting of the contracting parties to the London Protocol (2008)... passim Resolution LC-LP.2(2010) on the assessment framework for scientific research involving ocean fertilization adopted by the thirty-second consultative meeting of the contracting partiesto the London Convention and the fifth meeting of the contracting parties to the London Protocol (adopted on 14 Oct. 2010)... passim Laws and International Instruments United Nations Convention on Law of Sea, 1833 U.N.T.S 397 opened for signature at Dec. 10, Convention on Biological Diversity 1760 U.N.T.S. 79 (1992) opened for signature at June 5, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 adopted on 16 June Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, opened for signature May 23,

10 Stockholm Declaration on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1 opened for signature at ICJ/ ITLOS JUDICAL DECISIONS. Advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Judgment, 2011 I.C.J. 84, (April 1) Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), Judgment, 1964 I.C.J. Rep. 6, (July 24) Case concerning United States diplomat and consular staff in Tehran (United States of America v. Iran), Judgment, ICJ Rep (24 May. 1980) Corfu Chanel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment on Preliminary Objection, 1948 I.C.J. Rep. 15, (Mar. 25)

11 Fisheries Jurisdiction Case(United Kingdom v. Iceland), Judgment,1998 ICJ Rep 432 (Dec. 4) Gabcikovo-Nagymaros Project (Hungary. v. Slovakia.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25) La Grande case (Germany v. United States of America), Judgment, ICJ Rep. 2001, (27 Jun. 2001) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 241 (July 8) Mavromamatis Palestine Concessions (The Government of the Greek Republic versus The Government of His Britannic Majesty), 1924 P.C.I.J. (ser. A), No. 2 (August ) Mox Plant Case(Ireland v. United Kingdom), Case No. 10, Order 2001/3 (Dec.10/2016) Nottebohm(Liechtenstein v. Guatemala), Preliminary Objection, I.C.J. Rep. (Nov. 18)

12 Nicaragua v. USA, ICJ Merits (1986) Nuclear tests case (Australia v. France), 1973 I.C.J Oils Platform Case(Islamic Republic of Iran v. United States of America), Judgment, 2003 I.C.J. Rep. 161, (Nov. 6) Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. Rep. 14, (April 20) (Joint Dissenting Opinion of Judges AL-Khasawneh and Simma) Use of Nuclear Weapons Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore), 2004 ITLOS 12, (May 7, 2004) Wimbledon case (The Governments of His Britannic Majesty ; The French Republic of His Majesty the King of Italy ; His Majesty the Emperor of Japan v. The Government of the German Empire), 1923 P.C.I.J. (ser. A) No. at 13 (June ) Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), 1999, ITLOS 3/ African Commission of Human Rights Case The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96, Afr. Comm n H.P.R, (May 27 th 2002)

13 Inter-American Commission of Human Rights Case Maya Indigenous Community of the Toledo District v. Belize, Merits, lnter-am.comm n H.R. Report No. 40/04, OEA/Ser.L/V/II.122 doc. 5 rev. (Oct. 12 th 2004) European Court of Justice Case C-157/96, (The Queen v. Ministry of Agriculture), Fisheries and Food 1998 E.C.R Iran-US Claim Tribunal Case. Federal Reserve Bank of New York v. Bank Murakazi, 5 Iran-US Cl. Trib. Rep. 529 (1984)

14 Abbreviations ICJ UNCLOS CBD VCLT CMS UNFCCC EEZ BD OFP Art. ICCPR LP LC GA PCIJ International Court of Justice. United Nations Convention on Laws of Sea. Convention on Biological Diversity. Vienna Convention on Law of Treaties. Conservation of Migratory Species of Wild Animals. United Nations Framework Convention on Climate Change. Exclusive Economic Zone. Biological Diversity. Ocean Fertilization Project. Article. International Covenant on Civil and Political Rights. London Protocol. London Convention. General Assembly. Permanent Court of International Justice. 13

15 STATEMENT OF JURISDICTION The Federal States of Aeolia submitted written application addressed to the Registrar on 4 April 2016, instituting the following case against the Republic of Rinnuco. Pursuant to Article 40, paragraph 1 of the Statute of the ICJ, States may bring cases before the Court either by the notification of the special agreement or by a written application addressed to the Registrar. Pursuant to article 36, paragraph 1 of the Statute of ICJ, "The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force." Both Aeolia and Rinnuco has declared in writing that they would submit to the jurisdiction of the ICJ to resolve disputes concerning the interpretation or application of the Convention on Biological Diversity. When Aeolia and Rinnuco signed UNCLOS, both parties chose the ICJ for the settlement of disputes, but On 28 March 2016, Rinnuco deposited a notice of revocation of its written declaration stating that Rinnuco would not submit disputes concerning UNCLOS to the ICJ. However, pursuant to article 287, paragraph 6, of the UNCLOS, the declaration shall remain in force until 3 months after the notice of revocation has been deposited. The Registrar acknowledged the receipt on 23 June 2016, of the Application instituting proceedings against the Republic of Rinnuco, submitted by the Federal States of Aeolia on 4 April 2016; and the Preliminary Objection, submitted by the Republic of Rinnuco on 10 May

16 QUESTIONS PRESENTED I. Does ICJ have jurisdiction over the matter instituted by the Federal States of Aeolia? II. Is the ocean fertilization project conducted by the Republic of Rinnuco violation of international laws claimed by the Federal States of Aeolia? 15

17 STATEMENT OF FACT The Federal States of Aeolia is a developed country having diversified industrial economy and large fishing industries. Due to numerous whale-watching, festivals and other excursions that focus on narwhals, Aeolia has a strong eco-tourism sector. The Republic of Rinnuco is also a developed country with diversified industrial economy and like Aeolia, the Republic of Rinnuco also has a large fishing industry. The Federal States of Aeolia and the Republic of Rinnuco are neighboring coastal sovereign states located on Scheflutti, a continent that is completely surrounded by the Muktuk Ocean and is located near Greenland in the Arctic Circle. Aeolia and Rinnuco are parties to International Court of Justice, Vienna Convention on Law of Treaties, United Nations Convention on the Law of the Sea, Convention on Biological Diversity, Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention), 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London Protocol), Conservation of Migratory Species of Wild Animals, United Nations Framework Convention on Climate Change (UNFCCC), Kyoto Protocol, and have signed (but have not yet ratified) the Paris Agreement. Both countries declared in writing that they would submit to the jurisdiction of the ICJ to resolve disputes concerning the interpretation or application of the CBD. Unlike Aeolia, Rinnuco has not recognized the ICJ s jurisdiction as compulsory and when Aeolia and Rinnuco signed UNCLOS, both parties chose the ICJ for the settlement of disputes, but On 28 March 2016, 16

18 Rinnuco deposited a notice of revocation of its written declaration stating that Rinnuco would not submit disputes concerning UNCLOS to the ICJ. The Republic of Rinnuco after conducting Extensive Impact Assessment and announcing its plans to engage in ocean fertilization project in the Muktuk Ocean with the aims to mitigate climate change, generate carbon offsets, stimulate fish production, and understanding the benefits of ocean fertilization, deposited powdered ferrous sulfate approximately 175 miles off the coast of Rinnuco within Rinnuco s EEZ in the Muktuk Ocean on 5 January Rinnuco had plans to add 15,000 kg of ferrous sulfate powder over the course of six weeks to a 2,000-km2 area. After the announcements by Rinnuco to involve in ocean fertilization, Aeolia had repeatedly expressed its concerns over the potential negative impacts of ocean fertilization and had urged the Government of Rinnuco to act in accordance to precautionary principle and abandon the project. Diplomatic notes had been sent by Aeolia by mentioning that Rinnuco is violating multiple international law by conducting ocean fertilization. Whereas, the Government of Rinnuco had maintained that ocean fertilization has no negative impacts on the marine environment and is not in violation of any international law. However after second diplomatic by Aeolia reiterating its concerns over the initiation of first phase of ocean fertilization, Rinnuco suspended the project from 13 February 2015 in the spirit of co-operation. On 22 April 2015, nine dead narwhals were found off the coast of Rinnuco. The cause of the deaths were inconclusive. Through a diplomatic note, Aeolia mentioned that the ocean fertilization project conducted by Rinnuco could have caused the death of narwhals and urged Rinnuco to halt the project in accordance to precautionary principle. Aeolia reiterated that Rinnuco is breaching various international laws by conducting ocean fertilization. Answering Aeolia, 17

19 Rinnuco maintained its position that ocean fertilization project did not cause the death of the narwhals and Rinnuco did not violate any international laws. It was further mentioned that Rinnuco had plans to resume the project. From January 2015 through March 2016, additional negotiations, followed by mediation, were conducted between Aeolia and Rinnuco, but the dispute could not be resolved. Rinnuco rejected the request of Aeolia to submit the matter to ICJ. Aeolia submitted an Application instituting proceedings against the Republic of Rinnuco, dated 4 April 2016 in the ICJ and Rinnuco submitted a Preliminary Objection, dated 10 May Rinnuco expressed its objection to the ICJ's jurisdiction over the matter. The question before the court is whether the court has jurisdiction over the matter instituted by the Federal States of Aeolia and whether the ocean fertilization project is a violation to international law. SUMMARY OF ARGUMETS 18

20 I. THE COURT HAS JURISDICTION ON THE ISSUE OF FERTILIZATION PERSUANT TO ARTICLE 36(1) OF THE STATUTE. A. THE COURT HAS JURISDICTION RATIONE CONSENSUS TO ENTERTAIN THE DISPUTE. i. Both Rinnuco and Aeolia have declared in writing their acceptance of I.C.J s jurisdiction under UNCLOS and CBD. ii. The consent expressed by Rinnuco to be bound by court s jurisdiction is clear, voluntary and indisputable. B. THE DEPOSITION OF NOTICE OF REVOCATION DOES NOT EXEMPT THE COURT FROM EXERCISING ITS JURISDICTION ON THE MATTER. i. The court has been validly seized prior to the effect of Rinnuco s notice pursuant to Art. 287(6) of UNCLOS. ii. Even if the Rinnuco s notice is in effect, it does not affect the proceedings of the pending case of Aeolia s pursuant to Art 287(7) of UNCLOS. II. THE COURT HAS JURISDICTION OVER ALL OF AEOLIA S CLAIMS SINCE THE SUBJECT MATTER OF DISPUTE ARISES WITHIN THE TREATIES AND 19

21 CONVENTION IN FORCE TO WHICH RINNUCO AND AEOLIA ARE STATE PARTIES. A. THE DEPOSITION OF FESO4 IN MUKTUK OCEAN IS WITHIN THE SCOPE OF JURISDICTIONAL CLAUSE, ART. 4 OF CBD. i. Deposition of FeSO4 under Ocean Fertilization is an activity involving components of BD affecting the BD of Aeolia beyond Rinnuco s EEZ. a) OFP uses phytoplankton, which is a component of BD. b) OFP s use of FeSO4 affects BD of Muktuk Ocean beyond Rinnuc s EEZ. B. THE DEPOSTION FeSO4 AMOUNTS TO POLLUTION BY DUMPING UNDER UNCLOS AND THREATENS THE MARINE ENVIRONMENT OF MUKTUK OCEAN. i. Rinnuco s deposition of FeSO4 causes pollution defined by UNCLOS in Art. 1(4). Pollution to be defined as per the object and purpose of UNCLOS under VCLT Art. 31(1). a) FeSO4 has deleterious effect on marine life of Muktuk Ocean. b) FeSO4 affects Ni, S, P ratio and changes nutrition ratio. c) FeSO4 alters the food chain affecting the highly migrating species like Narwahls and Cetaceans. ii. Rinnuco s deposition of FeSO4 is an act of dumping defined by UNCLOS in Art. 1(5). i. The deposition of FeSO4 is deliberate. ii. iii. The deposition did not arise from normal operation of Rinnuco s vessels. The deposition of FeSO4 is against the object and purpose of UNCLOS 20

22 III. AEOLIA S CLAIMS CONCERNING OFP AND MARINE ENVIRONMENT PROTECTION ARE ADMISSIBLE BEFORE THE COURT. A. THERE IS PRESENCE OF A LEGAL DISPUTE BETWEEN AEOLIA AND RINNUCO. i. There is a dispute between Aeolia and Rinnuco in the treaty regime that governs OFP in Muktuk Ocean. ii. There is dispute in point of laws of UNCLOS; inter alia Art.246 and Art.3, Art.8, Art.14 of CBD. B. THE FAILURE OF ALTERNATIVE SETTLEMENT OF DISPUTE BETWEEN AEOLIA AND RINNUCO. i. The negotiation and mediations procedures adopted by Aeolia and Rinnuco have failed to settle the dispute. ii. iii. The point of finality has reached between Aeolia and Rinnuco in respect to their claims. There is no agreed procedure to settle the dispute between Aeolia and Rinnuco other than the judicial settlement. C. AEOLIA HAS LEGAL INTEREST IN SEEKING THE COURT S JUDGMENT LEADING TO THE ABANDONMENT OF RINNUCO S PLANNED OFP. i. OFP s threat to Muktuk Ocean impedes Aeolia s economic rights, inter alia, right to development. ii. OFP s threat to Muktuk Ocean impedes Aeolia s cultural rights under ICCPR. 21

23 IV. RINNUCO HAS VIOLATED INTERNATIONAL LAW BY CONDUCTING THE OFP IN THE MUKTUK OCEAN A. RINNUCO HAS ACTED IN CONTRAVENTION TO DUTY TO PROTECT THE MARINE ENVIRONMENT OF MUKTUK OCEAN UNDER UNCLOS, CBD. i. Rinnuco has acted contrary to Art. 14(a) of CBD and failed to apply preacautionary principle in conducting OFP. a) Rinnuco s impact assessment of OFP is not valid and appropriate measure. b) Rinnuco is under obligation to follow LP framework of impact assessement of OFP. c) Rinnuco is under obligation to abide by CBD decisions d) The interpretation of Art. 14(a) is as per article 31(1) and 31(2) of VCLT. B. RINNUCO HAS ACTED IN CONTRAVENTION TO PRINCIPLE NOT TO CAUSE TRANSBOUNDARY HARM MANDATED BY CBD AND UNCLOS. i. Rinnuco has violated Art. 210, 193, 194 of UNCLOS and Art. 1,3,5 of CBD. ii. The principle is a customary international law. iii. Rinnuco has failed to abide by due diligence principle. iv. The damage done by OFP is beyond nuisance or insignificant. 22

24 V. RINNUCO IS UNDER OBLIGATION TO ABANDON THE PLANNED OFP SINCE IT IS AN INTERNATIONALLY WRONGFUL ACT. A. Rinnuco s large scale deposition of FeSO4 in muktuk ocean is an act constituting a breach of erga omnes obligation. i. Duty to protect marine environment is an obligation erga omnes. ii. iii. Rinnuco s conduct of OFP cannot be justified under necessary. Rinnuco s internal law cannot justify the breach of obligation erga omnes. ARGUMENTS 23

25 I. THE COURT HAS JURISDICTION ON THE ISSUE OF OCEAN FERTILIZATION PERSUANT TO ARTICLE 36(1) OF THE STATUTE. The dispute concerning the ocean fertilization and marine protection between Aeolia and Rinnuco is, a legal dispute requiring consent of the states. 1 Rinnuco s consent to be bound by ICJ jurisdiction is, in line with international law, clearly expressed, voluntary and indisputable 2 manifested in written declaration pursuant to CBD and UNCLOS [A]. The notice of revocation deposited by Rinnuco does not exempt the court from exercising its jurisdiction on the matter of OFP [B]. A. THE COURT HAS JURISDICTION RATIONE CONSENSUS TO ENTERTAIN THE DISPUTE. Rinnuco has consented to be bound by the jurisdiction of ICJ pursuant to Art (b) of CBD. 3 Rinnuco has consented to the jurisdiction by the form of CBD which is a convention in force, as required by Art. 36(1) of ICJ Statute. The compromissory clause provides the court jurisdiction ratione consensus on the dispute under Art. 36(1) of the statute. 4 This court has found jurisdiction on several contentious cases based on 1 Corfu Chanel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgment on Preliminary Objection, 1948 I.C.J. Rep. 15, 27 (Mar. 25). 2 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.A.), Merits and Admissibility, 1984 I.C.J. Rep. 14, 44 (Jun. 27). 3 R See Christina Verones, SA Sebastian, The Public International Law Study Guide For Students: Exercises and Answers (July 18, 2014), 24

26 the compromissory clauses of treaties and convention in force reasoning the treaty to be a manifestation of consent. 5 Similarly, Rinnuco has consented to be bound by the jurisdiction of ICJ pursuant to Art b of UNCLOS. There has been no acceptance of the same procedure to settle the dispute between Aeolia and Rinnuco other than the written declaration, which could be resorted to. B. THE DEPOSITION OF NOTICE OF REVOCATION DOES NOT EXEMPT THE COURT FROM EXERCISING ITS JURISDICTION ON THE MATTER i. Rinnuco s deposition of notice of revocation of declaration accepting jurisdiction of the court 6 had not come into effect when the court was seized of the dispute. Article 287(6) of UNCLOS mandates the passage of three months time duration for the notice of revocation to be effective. 7 Aeolia has instituted =consensual%20jurisdiction&f=false (last visited Nov. 1, 2016). 5 See, Case concerning United States diplomat and consular staff in Tehran (United States of America v. Iran), Judgment, ICJ Rep (24 May. 1980), La Grande case (Germany v. United States of America), Judgment, ICJ Rep. 2001, (27 Jun. 2001). 6 R. at 9. 7 United Nations Convention on the Law of the Sea, art. 287(6), Dec.10, 1982, 1833 U.N.T.S. 397 [hereinafter, UNCLOS]. 25

27 proceedings against Rinnuco five days after the notice of revocation was deposited. On 23 rd June 2016, I.C.J. had issued notice to Aeolia and Rinnuco notifying the entrance of the case in the general list of the court. 8 The proceedings have taken place within three months of deposition of the revocation notice. ii. Even in assuming that the notice of revocation has come into effect, it does not affect the proceedings initiated by Aeolia which is pending before the court since the court has been seized within three months of the deposition of the notice. After the court has been validly seized, [T]he expiry of the period fixed for one of the Declarations on which the Application was founded is an event which is unrelated to the exercise of the powers conferred on the Court by the Statute... 9 In the Nicaragua case, this court has adhered to the aforementioned reasoning for the supervening withdrawal, modification of the declaration made by the United States. 10 II. THE COURT HAS JURISDICTION OVER ALL OF AEOLIA S CLAIMS SINCE THE SUBJECT MATTER OF DISPUTE ARISES WITHIN THE TREATIES AND 8 R. at 2. 9 Nottebohm(Liechtenstein v. Guatemala), Preliminary Objection, I.C.J. Rep. 11, 122 (Nov. 18). 10 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.A.), Merits and Admissibility, 1984 I.C.J. Rep. 14, (Jun. 27). 26

28 CONVENTION IN FORCE TO WHICH RINNUCO AND AEOLIA ARE STATE PARTIES. The dispute between Aeolia and Rinnuco is a legal dispute 11 that requires interpretation by the court. The scope of the conduct of Ocean Fertilization 12 by Rinnuco in the Muktuk Ocean arises within the purview of the compromissory clauses of CBD and UNCLOS, pursuant to which both Aeolia and Rinnuco have deposited declarations to submit the dispute to the ICJ. 13 The compromissory clauses contained in both of the treaties should be interpreted in connection with the substantive provisions of the treaties. 14 CBD as a comprehensive global Treaty substantively encompasses issues relating components of biological diversity including issues of genetic resource, technology and bio safety 15 ; consequently, the deposition of FeSO4 in the Muktuk 11 Mavromattes Palestine Concessions (The Government of the Greek Republic versus The Government of His Britannic Majesty), 1924 P.C.I.J. (ser. A), No. 2 at 11 (August ), A dispute is a disagreement between a point of law or a fact, a conflict of legal views or of interests between two parties. 12 Philip Williamson et al., Ocean Fertilization for Geo-engineering: A Review of Effectiveness, Environmental Impacts and Emerging Governance, 90 Process Safety and Environment Protection Rev. at (2012). 13 R The Statute of The International Court of Justice : A Commentary 588 (Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Frahm & Christian J. Tams eds., Oxford University Press, 2d ed. 2012); See, Case concerning application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 ICJ Rep., 152 (26 Feb.2007). 15 Glowka, et al., A Guide to the Convention on Biological Diversity 3 (IUCN Gland and Cambridge 1994) (1999). 27

29 Ocean 16 is within the purview of CBD s jurisdiction [A]. The deposition by Rinnuco as part of the Marine Scientific Research within its EEZ is the matter of dispute regulated by UNCLOS vis-àvis protection and preservation 17 of Marine Environment [B].Thus, court has rationae materiae jurisdiction over the issue of ocean fertilization by Rinnuco. A. THE CONDUCT OF OFP IS WITHIN THE JURISDICTIONAL CLAUSE OF CBD PERSUANT TO ART. 4. i. Deposition of FeSO4 under Ocean Fertilization is an activity involving components of BD affecting the BD of Aeolia beyond Rinnuco s EEZ. a) Ocean fertilization uses FeSO4 to boost the growth of phytopanktons. 18 Phytoplanktons are abundantly living marine plants with chlorophyll and form the basis of aquatic food chain. 19 The chain attributes to the lives of wide range of marine organisms thereby maintaining the biological diversity. Furthermore, since component of biodiversity involves not only the tangible biotic 16 R. at Philippe Sands, Principles of International Environmental Law 41 (2d ed. 1995) (2003). 18 Grant Wilson, Murky waters: Ambiguous International Law for Ocean Fertilization and Other Geo-engineering 515 (Jun.30, 2016). 19 Michelle Allsopp et al., infra note 77, at 5. 28

30 components but to the attribution of life 20, phytoplanktons are the components of BD and is within the jurisdiction of CBD. b) Rinnuco s planned ocean fertilization is a marine geo-engineering activity whose effects are widespread and has potential to result in 21 deleterious effect. The activity has a chain of effects; eutrophication, hypoxia, anoxia leading to loss of oxygen 22 beyond the tipping point. 23 The further acidification during the phases of the activity hinders the growth of organisms impacting the food chain 24 of the Muktuk Ocean disrupting the habitat leading to the extinction of the species. Thus, waters off the coast of Aeolia are in danger of losing the species as an effect of the deposition beyond, Aeolia s EEZ. B. THE DEPOSTION FeSO4 AMOUNTS TO POLLUTION BY DUMPING UNDER UNCLOS AND THREATENS THE MARINE ENVIRONMENT OF MUKTUK OCEAN. 20 EPLP 21 Id. at Bakker D.C.E., Storage of carbon dioxide by greening the oceans? In: the Global Carboncycle: Integrating humans, climate and the natural world (C.B. Field & M.R. Raupach.eds 2004). 23 Murky Waters, supra note 18, at Id. at

31 i. UNCLOS defines pollution as introduction of substances or energy which results or is likely to result in deleterious effects as harm to living resources and marine life, hazards to human life. 25 This definition should be interpreted as per the object and purpose of UNCLOS pursuant to Art. 31(1) of VCLT. 26 The recognized purpose of the UNCLOS has been to protect and preserve the marine environment 27. The definition encompasses the activities that are likely to harm indicating the futuristic implication of the definition. The definition in this regard focuses on the deleterious effects to the marine life and the likelihood of following effects qualifies the deposition to marine pollution. 28 a) The introduction of FeSO4 by Rinnuco alters the uptake ratio of nitrate and silicate at very low levels. The shift in ratios of N:P or N:Si and phytoplankton community structure creates an imbalance in production and consumption at larger trophic levels in the Muktuk Ocean. The deposition results to altered Species combination in the marine ecosystem UNCLOS, supra note 7, art. 1(4) 26 Vienna Convention on the Law of Treaties, art 31(1), 1155 U.N.T.S. 331, opened for signature May 23, 1969 [hereinafter VCLT]. 27 UNCLOS, supra note 7, pmbl. 28 David Freestone, Rosemary Rayfuse, Ocean Iron Fertilization and International Law 364, Marine Ecology Progress Ser. 227, 229 (2008). 29 Scientific Synthesis of The Impacts of Ocean Fertilization on Marine Biodiversity, CBD Technical Ser. NO (Secretariat of The Convention on Biological Diversity, 2009). 30

32 b) Changes to phytoplankton and bacterial population has unpredictable pathways and consequences for the global ocean food chains (depending on location) leading to harmful algae bloom. 30 Narwahls listed as highly migrating species under UNCLOS 31 and CMS 32 and Cetaceans that inhabit the Ocean are in danger of extinction due to such alteration in food chain. ii. UNCLOS defines dumping as a deliberate disposal of matter from vessels or other man-made structure at sea. 33 Rinnuco s legislature deliberately approved the planning and implementation of the OFP. The act of deposition of FeSO4 by Stanlee 175 miles off its coast amounts to dumping under Art. 1.5(a) because : a) The deposited matter FeSO4 did not arise from normal operation of Rinnuco s vessels, aircrafts or other structures and did not rise from transport or treatment of wastes, rather it was a deliberate and planned project of large scale. b) The conduct of OFP is contrary to the aims of the convention because of the aforementioned deleterious effects mentioned in argument B. ( i ). (a), (b) on the Marine Environment of Muktuk Ocean. The conduct of deposition of FeSO4 when interpreted in conjunction with Art Woods Hole Oceanographic Institution 46, Oceanus Magazine at 16 (2008). 31 UNCLOS, supra note 7, annex I. 32 Convention on the Conservation of Migratory Species of Wild Animals, 1651 U.N.T.S 333, appendix 2 opened for signature at 23 June UNCLOS, supra note 7, 1(5). 31

33 and 193 of UNCLOS, which puts Rinnuco under obligation to protect and preserve marine environment, amounts to dumping 34 in the Muktuk Ocean. III. AEOLIA S CLAIMS CONCERNING OFP AND MARINE ENVIRONMENT PROTECTION ARE ADMISSIBLE BEFORE THE COURT. Objections to admissibility refers to the assertion that even if the court has jurisdiction.there are reasons for the court to not proceed into an examination of merits. 35 Such a reason is of de limine litis nature and generally consists of issues relating to presence of dispute, locus standi of applicant state, exhaustion of local remedies 36, alternative method of pacific settlement of dispute 37, presence of appropriate legal interest Climate Change Geoengineering: Philosophical Perspectives, Legal Issues, and Governance Frameworks 231 (Wil. C. G. Burns, Andrew L. Strauss eds., Jul.22, 2013). 35 Oils Platform Case(Islamic Republic of Iran v. United States of America), Judgment, 2003 I.C.J. Rep. 161, 29 (Nov. 6). 36 See, Nottebohm(Liechtenstein v. Guatemala), Preliminary Objection, I.C.J. Rep. 11, (Nov. 18). 37 Andreas Zimmerman et al., supra note 12, at Wimbledon case (The Governments of His Britannic Majesty ; of the French Republic ; of His Majesty the King of Italy ; of His Majesty the Emperor of Japan v. The Government of the German Empire), 1923 P.C.I.J. (ser. A) No. at 13 (June ). 32

34 A. THERE IS PRESENCE OF LEGAL DISPUTE BETWEEN AEOLIA AND RINNUCO. i. A dispute is defined as [A] dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. 39 In its application, Aeolia asserts the unlawfulness in international law of the OFP conducted by Rinnuco in the Muktuk Ocean. On its side, Rinnuco asserts that OFP as a scientific research is legal under international law. ii. The dispute also relates to the identification of the treaty regime that governs the OFP in Muktuk ocean. There is dispute point of laws of UNCLOS; inter alia Art.246 and Art.3, Art.8, Art.14 of CBD. The dispute also relates to the point of legal views, whether UNCLOS and CBD regulates the OFP and whether the resolutions and decisions of CBD and LP Resolutions are binding to Rinnuco. Thus, there is a dispute in regards to application and interpretation of UNCLOS and CBD between Aeolia and Rinnuco of which the court is confronted with. B. NEGOTIATION AND MEDIATION PROCEDURES HAVE FAILED TO SETTLE DISPUTE BETWEEN RINNUCO AND AEOLIA. Art. 33 of UN charter directs the member states to resort to peaceful means of settlement of dispute through negotiation, enquiry, mediation, conciliation, arbitration before judicial settlement of dispute. 39 Mavromattes Palestine Concessions (The Government of the Greek Republic versus The Government of His Britannic Majesty), 1924 P.C.I.J. (ser. A), No. 2 at 11 (August ), A dispute is a disagreement between a point of law or a fact, a conflict of legal views or of interests between two parties. 33

35 i. The dispute regarding the conduct of OFP had been subjected to a series of negotiation and mediation that continued for thirteen months from January 2015 to March 2016 between Aeolia and Rinnuco. 40 ii. The point of finality whereby parties definitely refuse to give away claims marks the end of negotiation. 41 These methods have failed to settle the dispute with both Rinnuco and Aeolia reaching to the final point where Rinnuco continued to declare its adherence to its OFP 42 and Aeolia continued to demand OFP s abandonment, without giving away their initial claims. iii. Art. 287(4) of UNCLOS allows the disputing states to resort to the procedure of settlement of dispute which the parties have agreed to. There is no prior agreement between Rinnuco and Aeolia to submit the dispute other than the declarations deposited accepting ICJ s jurisdiction under UNCLOS and CBD. Thus, the failure of negotiations and mediations, and the absence of other common agreement to settle the dispute other than the agreement to judicial settlement make the claims of Aeolia admissible before this court, making dispute settlement clause of CBD, Art. 27.3(b) and Art. 287 operative. C. THERE IS A PRESENCE OF LEGAL INTEREST OF AEOLIA. 40 R. at See, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, 2011 I.C.J. Rep. 70, 30 (Apr. 1), The existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for. 34

36 This court has noted that the applicant should demonstrate that it has rights of its own, distinct from general community interest or is suffered or has threatened by real damage for the application to be admissible before the court. 43 Aeolia having been state parties to UNCLOS, CBD, LP and CMS has rights related to the protection of the Marine biodiversity and Marine environment 44 duty of which is to be borne by Rinnuco being a state of origin of OFP and an adjacent neighbor to Aeolia. 45 i. Aeolia has interest to obtain judgment of Rinnuco s abandonment of OFP because large scale OFPs pose a deleterious effect to the marine environment 46, inter alia causing altercations in food chain, change in nutrient composition, thereby, distorting the marine habitat. The deposition of FeSO4 in Muktuk Ocean subjects Narwahls of monodon monocerous family to a threat of extinction due to the aforementioned impacts of OFP. a) Narwhals range of migration is between waters off the coasts of Aeolia and Rinnuco, with greater degree of exposure to the deposition under OFP. They form an important base of Aeolia s ecotourism with numerous excursions focused on it. 47 With narwhals in danger, Aeolia s economic interests are jeopardized. This leads 43 See, Nuclear Test(Australia v. France) 1974 I.C.J. Rep. 253 (Dec. 20). 44 UNCLOS, supra note 7, 192, 193; Convention on Biological Diversity art U.N.T.S signed on 5 June 1992;See CMS, supra note R See Michelle Allsopp et al., infra note R

37 to the impediment of Aeolia s right to development highlighted by GA resolutions, declarations and human rights instruments. 48 b) Conventions 49 and regional practice 50 have shown how the protection of environment links with the rights of human beings. 51 IACHR notes that, development activities should not be carried out at the expense of the fundamental rights of persons who may be particularly and negatively affected, including indigenous communities and the environment upon which they depend for interalia cultural rights. 52 Aeolia s right to enjoy the culture is impeded by OFP since 48 Declaration on the Right to Development, UNGA Res. 41/128 (1986), Article 2(3); 1992 Rio Declaration on Environment and Development, Principle 3; 1966 UN Covenants on Civil and Political Rights and Economic, Social and Cultural Rights, Common Article 1(1). The right to development, embraces not just the promotion of economic development by states but also the broader human development elements found in the 1966 UN Covenant on Economic, Social and Cultural Rights. 49 Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 U.N.T.S 447 pmbl adopted on 25th June, 1998; See, Stockholm Declaration on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1 adopted on 1973 [hereinafter Stockholm Declaration]; Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992) [hereinafter Rio Declaration]. 50 The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Comm. No. 155/96, Afr. Comm n H.P.R, 51 (May 27 th 2002), Maya Indigenous Community of the Toledo District v. Belize, Merits, lnter-am.comm n H.R. Report No. 40/04, OEA/Ser.L/V/II.122 doc. 5 (Oct. 12 th 2004), 51 International Covenant on Economic, Social, and Cultural Rights,993 U.N.T.S 3, 12 adopted on Dec. 16, 1966; International Covenant on Civil and Political Rights, 999 U.N.T.S 171, 27 adopted on Dec. 16, Maya Indigenous Community of the Toledo District v. Belize, Merits, lnter-am.comm n H.R. Report No. 40/04, OEA/Ser.L/V/II.122 doc. 5 rev (Oct. 12 th 2004), 36

38 Narwahls is linked to the annual festival in Aeolia. 53 Right to enjoy one s own culture is an ICCPR right, an instrument upheld by this court for transboundary application. 54 IV. RINNUCO HAS VIOLATED INTERNATIONAL LAW BY CONDUCTING THE OFP IN THE MUKTUK OCEAN. A. RINNUCO HAS ACTED IN CONTRAVENTION TO DUTY TO PROTECT THE MARINE ENVIRONMENT OF MUKTUK OCEAN UNDER UNCLOS, CBD. UNCLOS, CBD has provided that coastal states have sovereign rights to explore and exploit the natural resources in the EEZ. 55 The phrase sovereign rights are exclusive not preferential. 56 However, international law obliges a state to protect and preserve the marine environment 57 and states also have mutual obligation of due regard in the exercise of the rights and duties in 53 R. at 3 54 Advisory opinion on Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports UNCLOS supra note 7, arts. 55, 56; CBD supra note 44, art Robert Beckman, Tara Davenport, The EEZ Regime: Reflections After 30 Years, LOSI Conference Paper (Prof. Harry N. Scheiber, Emily A. Gardner eds., 2012). 57 G. A. Res. 62/215, Oceans and the law of Sea, 3, U.N. Doc. A/Res/66/215 (Dec. 22, 2007), G. A. Res. 66/288, The Future We Want, Art. 2(3), U.N. Doc. A/RES/62/288 (July. 27, 2012). 37

39 the EEZ. 58 This principle is iterated in numerous treaties customary law and this court s past decisions. 59 a) RINNUCO HAS FAILED TO TAKE PRECAUTIONARY APPROACH TO OFP BY NOT CONDUCTING AN APPROPRIATE IMPACT ASSESSMENT PROCEDURE AS PER ART. 14(b) OF CBD. Precautionary Principle obliges states to act carefully and with foresight when taking decisions which concern activities may have an adverse impact on the environment. 60 Rio Declaration asserts that the lack of scientific research cannot be a hindrance for a country to adopt cost effective measures to prevent environmental degradation. 61 Under the principle, Rinnuco is bound by an obligation to introduce appropriate 58 Fisheries Jurisdiction Case(United Kingdom v. Iceland), Judgment,1998 ICJ Rep (Dec. 4)., See also, Trail Smelter (U.S. v. Can.), 3 R.I.A.A (1941). 59 CBD supra note54, art. 3 ; United Nations Charter, as amended June 26, 1945, 892 U.N.T.S. 119 ; Stockholm Declaration on the Human Environment, princ. 21, U.N. Doc. A/CONF.48/14/Rev.1 (1973) [hereinafter Stockholm Declaration]. 60 Philippe Sands, supra note 15 at 272; See, Case C-157/96, The Queen v. Ministry of Agriculture, Fisheries and Food 1998 E.C.R , Use of Nuclear Weapons Case concerning Land Reclamation by Singapore in and around the Straits of Johor(Malaysia v Singapore), 2004, ITLOS 12, 61 (May. 7); Southern Bluefin Tuna Cases (New Zealand v Japan; Australia v Japan), 1999, ITLOS 3/4, 77 ( act with prudence and caution to ensure that effective conservation measures are taken to prevent serious harm to the stock of southern bluefin tuna ); Gabcikovo- Nagymaros Project (Hung./Slovk.), 1997 I.C.J. 7, (Sept. 25). 61 Rio Declaration supra note 49, art

40 procedures requiring impact assessment of the projects likely to have adverse impacts on BD. 62 i. The word appropriate should be interpreted in light of CBD s object and purpose 63 ; in a teleological manner. 64 The object and purpose, however cannot be considered in isolation of the terms of CBD. 65 This court has highlighted, in the field of environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage. 66 By not conducting the impact assessment framework within the Assessment Framework prescribed by Resolution of LP 67, Rinnuco has failed to take appropriate measure to avoid and minimize the effects of OFP as mandated by CBD. The above interpretation is within the term of CBD and does not contradict with the clear text of Art 14 (b) of CBD. ii. VCLT also directs the interpretation of the text with regards to the context 68 of the treaty including the agreements relating to the treaty. The term agreement connotes wider 62 CBD, supra note 44, art. 14(b). 63 VCLT, supra note 26, art. 31(1). 64 Vienna Convention on The Law of Treaties A Commentary 545 (Oliver Dorr, Kirsten Schmalenbach eds., Springer, 2012). 65 Federal Reserve Bank of New York v. Bank Murakazi, 5 Iran-US Cl. Trib. Rep (1984). 66 Mox Plant Case(Ireland v. United Kingdom), Case No. 10, Order 2001/3 of Dec /2016, 67 R VCLT, supra note 23, art.31(2). 39

41 scope 69 and encompasses decisions of CBD. Rinnuco has acted in contravention of CBD by disregarding the concern of contracting parties that the present status of global regulation of impact assessment is inadequate in case of geo-engineering activities like that of OFP 70 conducted by Rinnuco. This agreement obliges Rinnuco to take the comprehensive form of impact assessment as recommended by LP resolution, which Rinnuco has failed to abide by. 71 b) THE CONDUCT OF OFP BY RINNUCO IS IN VIOLATION OF PRINCIPLE NOT TO CAUSE TRANSBOUNDARY HARM MANDATED BY CBD, UNCLOS AND CUSTOMARY INTERNATIONAL LAW. International law including CBD and UNCLOS puts Rinnuco under obligation to not cause damage beyond the limits of its national jurisdiction. 72 Sic utere tuo ut alienum non laedus, or the duty to not cause transboundary harm, has achieved the status of 69 Oliver Dorr, Kirsten Schmalenbach, supra note 62 at Convention on Biological Diversity Decision XI/20 adopted by Conference of the Parties at its eleventh meeting, 8, 10 &11 (5 Dec., 2012). 71 See Resolution LC-LP.2(2010) on the assessment framework for scientific research involving ocean fertilization adopted by the thirty-second consultative meeting of the contracting parties to the London Convention and the fifth meeting of the contracting parties to the London Protocol (adopted on 14 Oct. 2010). 72 Stockholm Declaration, supra note 57, art.21; UNCLOS,supra note 6, arts.210, 193, 194 ; CBD supra note,54 art. 1, 3, 5. 40

42 customary international law. 73 In its Advisory Opinion, the ICJ stated the existence of the general obligation of States to ensure that activities within their jurisdiction and control and 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. 74 i. Transboundary damage refers to the environmental damage caused by or originating in one state and affecting the territory of another. More broadly, the scope of transboundary damage can encompass the damage on the high seas. The damages to be legally relevant should be greater than the mere nuisance or insignificant harm which is normally tolerated. 75 The principle is also a substantive principle. 76 ii. Rinnuco s OFP project is of large scale in nature. The operation has intended to cover area of 2,000 km 2, miles off Rinnuco s coast. 77 The deposition has already reached 175 miles off the coast of Rinnuco. 78 The operation is 25 miles away from reaching the Area of High Seas. Research has shown that deposition within km 2 spread to about See, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. pp (July 8); See Gabcikovo-Nagymaros Project (Hungary. v. Slovakia.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25).; Trail Smelter (U.S. v. Can.), 3 R.I.A.A (1941). 74 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 241 (July 8). 75 Xue Hanqin, Transboundary Damage in International Law, 3 (James Crawford, John S. Bell eds., Cambridge University Press 2003). 76 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. Rep. 14, 26 (April 20)(Joint Dissenting Opinion of Judges AL-Khasawneh and Simma). 77 R R

43 km 2 by end of the operation. 79 This shows that Aeolia is in high risk of being affected by the transboundary effect of OFP. IV. RINNUCO IS UNDER OBLIGATION TO ABANDON THE PLANNED OFP SINCE IT IS AN INTERNATIONALLY WRONGFUL ACT. A. DUTY TO PROTECT MARINE ENVIRONMENT IS AN OBLIGATION ERGA OMNES. Numerous scientific researches 80 show that the effects of large scale OFP are wide range and pose a global catastrophic risk to the marine environment. 81 Rinnuco is a party to UNCLOS and CBD; they are not bilateral treaties vis-à-vis Aeolia but multilateral treaties that put Rinnuco under obligation towards 165 states parties to CBD and 168 state parties to UNCLOS. 82 Protection of Marine environment and biological components thus have a global interest, which can be satisfied only if all members are engaged in the protection. 83 This interpretation fits with ICJ s cognizance of erga omnes obligation in Barcelona Traction Case as [t]he obligations of a State towards the international community as a whole and are the concern of all States. 84 The 79 Michelle Allsopp, David Santillo & Paul johnston, Greenpeace Research Laboratories Technical note, A Scientific Critique of Oceanic Iron Fertilization as a Climate Change Mitigation Strategy 9 (sept. 2007) 80 Murky Waters, supra note 18, at Id. at See Chronological lists of ratifications of, accessions and successions to the Convention and the related Agreements, See CBD List of Parties 83 Santiago Villalpando, The Legal Dimension of The International Community: How Community Interests are protected in International law 21 EIJL at 391 (2010). 84 Barcelona Traction, Light and Power Company Limited (Belgium v. Spain), Judgment, 1964 I.C.J. Rep. 6, 33 (July 24). 42