THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS

Transcription

1 THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS 21 st ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION Questions Relating to Ocean Fertilization and Marine Biodiversity FEDERAL STATES OF AEOLIA (APPLICANT) V. REPUBLIC OF RINNUCO (RESPONDENT) MEMORIAL FOR THE FEDERAL STATES OF AEOLIA (APPLICANT)

2 TABLE OF CONTENTS Title Page Cover Page... 1 Table of Contents. 2 Index Authorities... 3 Statement of Jurisdiction Questions Presented Statement of Facts Summary of Arguments 18 Main Arguments 19 I. The jurisdiction of ICJ is based on forum prorogatum.19 II. The respondent committed an International Wrongful Act...29 III. The respondent did not abide with CMS: Narwhals are protected species...38 IV. The respondent breached CBD: Narwhals is a part of mass biological diversity 40 V. UNCLOS protection on biodiversity was breached by respondent.41 Reliefs...43 Page 2 of 44

3 INDEX OF AUTHORITIES Treaties and Conventions Title Short Citation Page Cited Addis Ababa Principles Articles on Responsibility of States for International Wrongful Acts Addis Ababa Principles Articles on Responsibility of States 24, Charter of the United Nations UN Charter 20, 21 Convention on Biological Diversity CBD 21, 22, 23, 25, 26, 27, 28, 40, 41 Convention on Investment Disputes CID 20 Convention on the Conservation of CMS 21, 22, 23, 25, 26, 38, 39 Migratory Species of Wild Animals Convention on the Prevention of Marine Pollution by Dumping of Wastes and London Convention 21, 22, 23, 25, 26, 34, 37, 38, Other Matter Declaration of the United Nations Conference on Human Environment Stockholm Declaration 29, 35 Hague Convention on Highjacking Hague Convention 20 Paris Climate Change Convention Paris Convention 37 Page 3 of 44

4 Protocol to the Convention on the Prevention of Pollution by Dumping of Wastes and other Matter (1996 as amended by 2006 Protocol) London Protocol, 1996 (as amended by 2006 Protocol) 21, 22, 23, 25, 26, 30, 31, 33, 35, 37, 38 Rio Declaration on Environment and Rio Declaration 29 Development Rules of Court of the International Court ICJ Rules of Court 19, 20 of Justice Statute of the International Court of ICJ Statute 20, 21 Justice United Nations Convention on the Law of UNCLOS 26, 27, 41, 42, 43 the Sea United Nations Convention on the Genocide Convention 20 Prevention and Punishment of the Crime of Genocide Vienna Convention on the Law of Treaties VCLT 27, 28, 29, 34, 37, 38, 39, 42 Documents from Conference of Parties on the Convention on Biological Diversity, London Convention and United Nations General Assembly Title Short Citation Page Cited Page 4 of 44

5 Conference of the Parties, Annex II, Decision VII/2, Guidelines for the Sustainable Use of Biodiversity Conference of the Parties, Annex to Recommendation I/8 COP, Annex II, Decision VII/2 COP, Annex to Recommendation I/ Conference of the Parties, Decision V/18, COP, Decision V/18 24 Impact Assessment, Liability and Redress Conference of the Parties, Decision VI/11, COP, Decision VI/11 24 Liability and Redress Conference of the Parties, Decision VII/2, COP, Decision VII/2 24 Sustainable Use Conference of the Parties, Decision VII/5, COP, Decision VII/5 24 Marine and Coastal Biological Diversity Conference of the Parties, Recommendation I/8, Scientific, Technical and Technological Aspects and Sustainable Use of Coastal and Marine Biodiversity Resolution 1, 2(2010) COP, Recommendation I/8 London Convention, Resolution 1, 2 (2010) 23, Page 5 of 44

6 United Nations General Assembly A/RES/67/L21 United Nations General Assembly, A/RES/62/215 United Nations General Assembly, A/RES/66/288 UN General Assembly, A/RES/67/L21 UN General Assembly, A/RES/62/215 UN General Assembly, A/RES/66/ International Court of Justice Decisions and Jurisprudence of International Tribunals and Other Tribunals Title Short Citation Page Cited Artico v Italy, ECHR, Series A, No. 37, Artico v Italy Australia vs. Japan: New Zealand Intervening ICJ Reports 2014, pp. 226 Bosnia v. Yugoslavia, ICJ Reports, 1996 Congo v. France, ICJ Press Release, 2007/11 Whaling in the Antartic Application of the Genocide Convention Certain Criminal Proceedings in France Page 6 of 44

7 Djibouti vs. France, ICJ Reports, 2008 France v. Norway, 9 I.C.J Germany v. Poland (Merits), 17 PCIJ (Series A) 29, 51 (1928) Hungary v. Slovakia, ICJ Reports, 1997, 116 ILR, p. 1; Certain Questions of Mutual Assistance in Criminal Matters Norwegian Loans Case Chorzów Factory Case (Merits) Gabcikovo- Nagymaros Project Italy v. France, United Kingdom of Great Monetary Gold Case 20 Britain and Northern Ireland and United States of America, ICJ Reports, 1954, p 19, 54 Loizidou v. Turkey, Loizidou v. Turkey 39 ECHR, Series A, No. 310, p. 23 (1995); 103 ILR, p. 621 Minors Oposa v. Secretary of the Oposa v. Factoran 29, 35 Department of Environment and Natural Resources, Supreme Court of the Philippines, GR No , July 31, 1991 New Zeland v. France, ICJ Reports, 1995, pp. 288, 341; 106 ILR, pp. 1, 63 Request for an Examination of the 35 Page 7 of 44

8 New Zeland vs France, December 20, 1974, ICJ Reports, 20 December 1974, pp. 253, 268; 57 ILR, pp. 398, 413 Nicaragua v. Honduras, ICJ Reports, 1988, p. 105; 84 ILR, p. 218 Nicaragua v. Honduras, ICJ Reports, 1988, p 69 Nicaragua v. United States of America (Merits), 1986 I.C.J. 14 Situation in Accordance with Paragraph 63 of the Nuclear Tests Case (Dissenting Opinion: Judge Weeramantry) Nuclear Test Case (Judgment) Border and Transborder Armed Actions case Case Concerning Border and Transboder Armed Actions Military and Paramilitary Activities in and against Nicaragua (Merits) 36, Portugal v. Australia, ICJ Reports, 1995, p East Timor Case Page 8 of 44

9 Qatar v. Bahrain (Merits), ICJ Reports, 2001, paras. 110 ff Qatar vs Bahrain, ICJ Reports, 1994, p 112 and ICJ Reports, 1995, p 6 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits) The Case Concerning the Maritime Delimitation and Territorial Questions Between Qatar and Bahrain Shrimp Turtle Case, WTO Appellate Shrimp Turtle Case 37 Body, 38 ILM, 1999 Soering v. United Kingdom, European Court of Human Rights, Series A, No. 161, p. 34 (1989); 98 ILR, p. 270 United Kingdom v. Albania (Preliminary Objection), ICJ Reports, 1948 United Kingdom v. Albania, (Merits), ICJ Reports, 1949 US Diplomatic and Consular Staff in Tehran, ICJ Reports, 1980, p 3, 24 Soering v. UK, European Court of Human Rights Corfu Channel Case (Preliminary Objection) Corfu Channel Case (Merits) The Iranian Hostage Case , Page 9 of 44

10 United States vs Canada, 3 RIAA 1905 US v Canada 35 (1938) Title Page Cited Chittharanjan Felix. Amerasinghe, Evidence in International 32 Litigation (Brill, 2005) A. D Amato, Do We Owe a Duty to Future Generations to 35 Preserve the Global Environment?, 84 AJIL, 1990 Di Torro, D. M., Zarba, C. S., Hansen, W. J., Berry, W. J., Swartz, 36 R.C., Cowan, C. E., Pavlou, S. P., Allen, H. E., Thomas, H. A., and Paquin, P. R., Technical basis for establishing sediment quality criteria for non-ionic organic compounds using equilibrium partitioning. Environ. Toxicol. Chem. 10(12), (1991). E. Weiss, Our Rights and Obligations to Future Generations for 35 the Environment, 84 AJIL, 1990, and E. Weiss, Intergenerational Equity Eduardo Valencia-Ospina, Evidence Before the International 32 Court of Justice, 1 Int l L.F. D. Int l 203 (1999) F.G.Minujin, Debt-for-Nature Swops:A Financial Mechanism to 34 Reduce Debt and Preserve the Environment, 21 Environmental Policy and Law, 1991 Page 10 of 44

11 Harrison, Principles of Internal Medicine (18th edition, McGraw 35 Hill Companies, Inc, 2012) Jens Evensen, Evidence Before International Courts, 25 Nordisk 32 Tidsskrift Int l Ret 44 (1955) Carol Mattson Port, Pathophysiology: Concepts of Altered Health 36 States (Lippincott Williams and Wilkins, 1993) Neill H. Alford, Jr., Fact Finding by the World Court, 4 Vill. L. 32 Rev. 37 (1959) D. Polit and C. Beck, Research and Evaluation (6th edition) 36 Shabtai Rosenne, Law and Practice of the International Court (vol 19 2, M. Nijhoff, 1997) Susan George, The Debt Boomerang: How Third World Debts 34 Harm Us All, (Pluto Press, London, 1992) S. Yee, Forum Prorogatum in the International Court, German YIL, 1999 Philippe Sands, Principles of International Environmental Law 35 (Cambridge University Press, 2003) W. Michael Reisman and Eric E. Freedman, The Plaintiff s 32 Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication, 76 (4) AJIL (Oct., 1982) Page 11 of 44

12 STATEMENT OF JURISDICTION The Federal States of Aeolia and the Republic of Rinnuco and pursuant to Article 36 and Article 40 of the Statute of the International Court of Justice and Article 38 (5) of the Rules of Court, submit to the International Court of Justice the present Application instituting proceedings against the Republic of Rinnuco concerning the jurisdiction over this dispute and the case of Questions Relating to Ocean Fertilization and Marine Biodiversity, through a special agreement signed in The Hague, The Netherlands, on the eleventh day of July in the year two thousand sixteen. Applicant submits to the jurisdiction of the Court. Page 12 of 44

13 QUESTIONS PRESENTED A. Whether or not the Republic of Rinnuco is within the mandatory jurisdiction of the International Court of Justice under the doctrine of forum prorogatum and the jus cogens principle of international law B. Whether or not the Republic of Rinnuco commited International Wrongful Act C. The Republic of Rinnuco has breached its International Obligation on: London Convention and its protocols, Convention on the Conservation of Migratory Species and Wild animals, United Nations Convention on the Law of the Sea, and Convention on Biological Diversity: the Breach of the treaties is attributable to the State through a state organ. Page 13 of 44

14 STATEMENT OF FACTS On 15 December 2014, the Republic of Rinnuco, through law, approved and planned the ocean fertilization project in Muktuk Ocean where a precious shared resource between states is located. The applicant initiated protests and negotiations on its adverse effect on marine biodiversity in relation to respondent s international obligation but was not heeded. On 22 April 2015, nine dead narwhals were found dead off the coast of respondent. The Parties The applicant and respondent are neighboring coastal states in Scheflutti which is surrounded by the Muktuk Ocean. The marine biodiversity is comparable to Greenland and other countries in the Arctic Circle. Narwhals inhabit the Muktuk Ocean and are seen in the waters Aeolia and Rinnuco. The applicant s diversified industrial economy focuses on fishing and ecotourism including whale watching. It has a small research institute, the Nautilus Research Institute, which studies narwhals. The respondent s developed and diversified industrial economy includes fishing activities. Page 14 of 44

15 International Obligation Both States ratified the CBD acknowledging the compulsory jurisdiction of the ICJ; London Convention, London Protocol; CMS; and Kyoto Protocol also recognizing the compulsory jurisdiction of the ICJ. The parties ratified the UNCLOS and consented to ICJ s jurisdiction but respondent, on March 28, 2016, through notice revoked such jurisdiction. Both states signed the Paris Convention and attended with full participation to the Stockholm Declaration, Rio Declaration, 2002 World Summit on Sustainable Development, and 2012 Rio Conference at Rio de Janeiro. The Dispute On 21 November 2014, the respondent, after an extensive environmental impact assessment, announced its plans for Ocean Fertilization hoping to stimulate phytoplankton growth. It notified the applicant about the planned ocean fertilization where the applicant expressed its concern on the adverse effect of ocean fertilization on marine environment in Muktuk Ocean and. Respondent was urged to uphold its international obligation, the precautionary principle, and abandon the project. The respondent s legislature approved and funded the project through phases which are successively large. On 5 January 2015, respondent s research vessels, Stanlee, deposited ferrous sulfate approximately 175 miles off the coast of Rinnuco. The applicant warned that respondent is violating international law in transgression of the precautionary principle and Article 3.1, Article 3.3, Article 4, Resolution LC-LP.1 (2008), Resolution LC-LP.2 (2010), Resolution LP.4(8), and other Page 15 of 44

16 provisions of the London Convention and its Protocols. Respondent was urged to terminate the project immediately and meet with the applicant to discuss more fully and consider other options. Respondent countered that the project s purpose was scientific and averred that the London Convention s amendments are not yet in force. Respondent did not follow the Assessment Framework and the Environmental Impact Assessment as the Resolutions to the London Protocol are non-binding within its legal system. The respondent favored the ocean fertilization and abstained from voting at conferences of the parties in multilateral environmental agreements which prohibits ocean fertilization. No domestic action was taken to implement the London Convention s Resolutions. Rinnuco temporarily suspended the project after the initial phase and will resume the project at its discretion. On 22 April 2015, nine dead narwhals were found off the coast of the respondent. The Nautilus Research Institute s necropsy shows that the results were inconclusive. The applicant attributes this to the Ocean Fertilization Project and urges the respondent to act in accordance with the precautionary principle and terminate the remainder of its project to avoid causing transboundary harm. Rinnuco deposed that the death of the narwhals is not attributable to the project and averred that it has acted in accordance to CBD, has not caused any transboundary harm, has conducted an environmental impact assessment and notified the applicant the project. Respondent contends nonviolation on CMS and UNCLOS and has not harmed the marine environment and biodiversity. It contends that the project is beneficial to marine biodiversity, fish production, and scientific information and that respondent is authorized under UNCLOS. Respondent claims that the United Nations General Assembly Resolutions are non-binding, and United Nations General Assembly Page 16 of 44

17 Resolution 62/215 actually encourages States to support the further study and enhance understanding of ocean iron fertilization. On 27 February 2015, respondent submitted its intended nationally determined contribution in anticipation of the Paris Convention and committed to reduce greenhouse gas emissions by 50% by This demonstrates respondent s dedication to reducing greenhouse gas emissions and mitigating climate change, and its ocean fertilization project and other ocean fertilization projects could help to sequester carbon dioxide and mitigate climate change which, in turn, could benefit marine biodiversity in Muktuk Ocean. Rinnuco plans to resume its ocean fertilization project within the next year. From January 2015 through March 2016, additional negotiations, followed by mediation, were conducted between the Federal States of Aeolia and the Republic of Rinnuco, but the process failed to resolve the dispute regarding Rinnuco s ocean fertilization project. Page 17 of 44

18 SUMMARY OF ARGUMENTS 1. Respondent must observe ICJ s mandatory jurisdiction under the CBD to which the CMS, UNCLOS and London Convention and it Protocols subsidiarily apply; and the mandatory jurisdiction of the ICJ on VCLT based on jus cogens principle 2. The Republic of Rinnuco committed an International Wrongful Act a. The act is attributable to a state through a state organ b. Respondent violated the CMS, CBD, UNCLOS, and London Convention and its Protocols Page 18 of 44

19 MAIN ARGUMENTS I. The Jurisdiction of the ICJ based on forum prorogatum The ICJ Rules of Court provides for the doctrine of forum prorogatum and states that when an application is made by a state against another state whose consent is yet to be given, no action shall be taken unless the state against which the application is made consents to the jurisdiction of the court for the purposes of the case 1. It is submitted that the consent of the state to the Court s jurisdiction may be established by means of acts subsequent to the initiation of the proceedings 2 to avoid the impression that the Court is extending its jurisdiction by means of fiction and that there must be a showing that such 1 Art 38 (5), ICJ Rules of Court 2 Shabtai Rosenne, Law and Practice of the International Court (vol 2, M. Nijhoff, 1997), p 672 and S. Yee, Forum Prorogatum in the International Court, 42 German YIL, 1999, p 147 Page 19 of 44

20 consent is voluntary and indisputable 3. However in Qatar v. Bahrain 4 Minutes of the Meeting between the two foreign ministers can ground the ICJ of its jurisdiction 5. For the doctrine to apply, the consent of the state must (1) must be explicitly and clearly deduced from the conduct of the state, and (2) the extent of the consent depends upon the matching of the application made with the expression by the other party of its consent 6. The application must specify the legal grounds to which the jurisdiction of the Court is to be based 7. In some instances, the application of the forum prorogatum were observed due to Security Council s recommendation 8 but the doctrine will not apply when the rights of third parties will be the subject matter of the decision 9 even in erga omnes obligations 10. The Court may assume jurisdiction over the dispute is when there is a compromise clause contained in the treaty to which the applicant and the respondent is a state party 11. There have been 3 Corfu Channel Case (Preliminary Objection), United Kingdom v. Albania, ICJ Reports, 1948, p 27; Application of the Genocide Convention, ICJ Reports, 1996, p The Case Concerning the Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, ICJ Reports, 1994, p 112 and ICJ Reports, 1995, p 6 5 Ibid, ICJ Reports, 1995, p 17, 25 6 Certain Criminal Proceedings in France, ICJ Press Release, 2007/11 7 Certain Questions of Mutual Assistance in Criminal Matters, ICJ Reports, 2008, par Article 25, UN Charter 9 Monetary Gold Case, ICJ Reports, 1954, p 19, East Timor Case, ICJ Reports, 1995, p Article 40, ICJ Statute; Article 38, ICJ Rules of Court Page 20 of 44

21 a number of international instruments which grants jurisdiction on the ICJ such as: (1) The Genocide Convention, (2) Convention on Investment Disputes and (3) Hague Convention on Highjacking, and numerous others. These have been applied also in some cases such as: (1) Application of the Genocide Convention 12, (2) US Diplomatic and Consular Staff in Tehran 13 and (3) Case Concerning Border and Transboder Armed Actions 14. In view of this is the competence of the ICJ to decide its own jurisdiction 15 where jurisdiction is exercised over all disputes which parties refer to it and matters specially provided for in the UN Charter, Treaties and Conventions in force 16. The disputes may refer to: (1) interpretation of treaty, (2) questions of international law, and (3) existence of fact which constitutes a breach of international obligation and the nature and extent of the reparation to be made 17. From the foregoing principles, the applicant therefore submits the following: A. Respondent must observe ICJ s mandatory jurisdiction under the CBD to which the CMS and London Convention and it Protocols subsidiarily apply 12 Bosnia v Yugoslavia, ICJ Reports, 1996, p The Iranian Hostage Case, ICJ Reports, 1980, p 3, Nicaragua v Honduras, ICJ Reports, 1988, p 69, Article 36 (6), ICJ Statute 16 Article 36 (1), Ibid 17 Article 36 (2), Ibid Page 21 of 44

22 The applicant and the respondent are state parties to the CBD 18 where they made an unqualified submission on the mandatory jurisdiction of the ICJ over disputes concerning the interpretation and application of the treaty 19 when the solution through negotiation, good offices, or request by mediation by a third party failed 20. The issue therefore is whether or not there has been a failure to exhaust the modes of conciliation under paragraph two (2) or three (3) of Article 27 of the CBD. It is humbly submitted that there has been exhaustion of the remedies under Article 27 (1 & 2) of the said convention. The exchange of diplomatic notes constitutes a negotiation by the parties 21. There have been mediations and other modes of dispute resolution to the effect which also failed 22. These events trigger the jurisdiction of the ICJ albeit the disjunctive language of Article 27 (3) of the CBD 23. CBD also provides for the applicability of other conventions for it reaffirms that while states have sovereign rights over their own biological resources, there is a note that it is vital to anticipate, prevent, and attach the causes of significant reduction or loss of biological diversity at source and that the lack of full scientific certainty should not be used as a reason for postponing 18 Paragraph 5, Record 19 Article 27 (3), CBD 20 Article 27 (2 & 3), Ibid 21 Paragraphs 13, 14, 17, 18, 20, & 21, Record 22 Paragraph 22, Record 23 *** dispute settlement as compulsory: *** (b) Submission of the dispute to the International Court of Justice Page 22 of 44

23 measures to avoid or minimize such threat 24. The convention should be understood in the light of other conventions pertaining to the conservation of life since CBD desires to enhance and complement existing international arrangements for the conservation of biological diversity and sustainable use of its components for the benefit of the present and future generations 25. The applicant submits the applicability of the CMS and the London Convention and its Protocols, as a subsidiary source of obligations on the present action against the respondent. It was provided by the CBD that it shall not affect the rights and obligations of any contracting party deriving from any existing international agreement except there the exercise of those rights and obligations would cause a serious damage and threat to biological diversity 26. The following obligations under the CMS therefore are activated by the quoted article: 1. That the parties acknowledge the need to take action to avoid any migratory species becoming endangered 27 since the narwhals move in between the coasts of the Rinnuco and Aeolia 28 and have been listed on the Appendix II of the CMS Preamble, CBD 25 Preamble, Ibid 26 Article 22 (1), Ibid 27 Article II (2), CMS 28 Article I (1) (a), Ibid 29 Paragraph 8, Record Page 23 of 44

24 2. The benefits of the migratory species should be given priority and those species in an unfavorable conservation status 30. The respondent refuses to settle with its obligation to desist from its Ocean Fertilization Project 31 While the London Convention provides for arbitration as a mode of dispute resolution 32, the Court is not precluded to apply such convention since the state parties, in their conference to the CBD, have provided the taking into account of the existing conventions and the applicability of liability regimes under other international instruments pertaining to the dumping of wastes and other matters such as: 1. The minimization of municipal waste and the promotion of the integrated marine and coastal biodiversity with the undertaking of an environmental impact assessment The inclusion on national plans the basic management elements recommended for the reduction of waste which affects biological diversity The implementation of environmentally sustainable mariculture practices on the use of chemicals and minimization of high nutrient release The recognition on the use of mariculture but with the precaution its threat to marine and biological diversity such as wide scale destruction and degradation of natural 30 Article IV (3), CMS 31 Paragraph 20, Record 32 Article 16, London Protocol, 1996 (as amended by 2006 Protocol) 33 No. 10 (a), COP, Recommendation I/8 34 No. 12 (c), Ibid 35 No. 15 (I) (a), Ibid Page 24 of 44

25 habitats and the observation of the precautionary approach in mariculture development The applicability of other conventions with regards to the development and application of liability regimes under other multilateral agreements The making available to the international community the information and issues regarding those that may cause damage to biological diversity Development of effective methods for effluent and waste control The application of the Addis Ababa Principle 11 stating that users of biodiversity components should minimize waste and adverse environmental impact and optimize benefits from uses 40 The jurisdictional scope of the applicability of the CBD includes thereon the applicability of the CMS and the London Convention and its Protocols. They shall apply in the following instances: 1. In the case of components of biological diversity, in areas within the limits of its national jurisdiction 36 No. 11, COP, Annex to Recommendation I/8 37 No. 7, COP, Decision V/18 38 No. 2, COP, Decision VI/11 39 Operational Objective No 4.1 (a) (iii), COP, Decision VII/5 40 Practical Principle 11, Addis Ababa Principles; Annex II, Decision VII/2 Page 25 of 44

26 2. In the case of processes and activities, regardless of where their effects occur, carried out under its jurisdiction or control, within the area of its national jurisdiction or beyond the limits of national jurisdiction. 41 The respondent s consent refers to those activities that are: (1) made within its jurisdiction but their effects extend outside its national jurisdiction and (2) made outside its jurisdiction and their effects extent to another state s jurisdiction. Hence, there should be a due observance by the respondent on the provisions of the treaties, and the appropriation of regulation, management, or control of risk associated with the use and release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts affecting the conservation and sustainable use of biological diversity 42 including the use of elements that adversely affect the habitats of the narwhals. The Ocean Fertilization Project is an in-situ activity for it stimulates of the growth of phytoplanktons 43, which are foods for the narwhals 44, by respondent 45 through the introduction of ferrous sulfate within its exclusive economic zone 46. This is because the genetic resources exist within the ecosystem and natural habitats 47. It is therefore mandated, with due observance to the 41 Article 4, CBD 42 Article 8 (f), Ibid 43 Paragraph 12, Record 44 Paragraph 13, Ibid 45 Paragraph 15, Ibid 46 Paragraph 15, Ibid 47 Article 2, CBD Page 26 of 44

27 provisions of the CBD, that respondent observe the provisions of the CMS and the London Convention and its 1996 and 2006 Protocols. B. ICJ has jurisdiction over the dispute within UNCLOS The contracting parties shall implement the CBD with respect to the marine environment consistently with the rights and obligations of states under the law of the sea 48. This refers to the rights of the state under the UNCLOS which shall not be reduced except insofar as it contravenes the provisions of the CBD and other related treaties and conventions. Hence the identification and enjoyment of the specific rights of the state within those zones or territories as identified by the UNCLOS is effectively limited by and is subject to the provisions of the CBD, CMS and the London Convention and its Protocols. It is undisputed that the Ocean Fertilization Project was conducted in the Muktuk Ocean in a 2, 000 sqkm land area which is located approximately 150 to 200 miles off the coast of Rinnuco 49. While the respondent has the sovereign right to explore, conserve, exploit and manage the natural resources within its exclusive economic zone 50, the respondent has the obligation to observe due regard to the rights and duties of other states 51 taking into account all relevant circumstances and conventions to which the states are state parties, and the interests involved to 48 Article 22 (2), Ibid 49 Paragraph 15, Record 50 Article 56 (1) (a), UNCLOS 51 Article 56 (2), Ibid Page 27 of 44

28 the parties as well as to the international community as a whole 52 which in this case includes the jus cogens principles and customary international law such as right to environment and balanced ecology, and precautionary principles. The UNCLOS obliges the coastal state, in its exclusive economic zone, to ensure the proper conservation and management measures to the maintenance of the living resources in the area 53 which makes a stricter approach on marine mammals where states shall conserve small cetaceans and work with international organizations for their conservation and management 54. The respondent s notice of revocation on the jurisdiction of the ICJ on the interpretation and application of the UNCLOS 55 must fail since Article 59 (2) and Article 30(3) of the VCLT provides for the application of an earlier treaty insofar as they are compatible with the provisions of the latter treaty and when the earlier treaty is suspended, the suspension shall be removed if it appears in the latter treaty that such is the intention of the parties. Since the CBD is the latter treaty, its provisions with respect to jurisdiction should prevail 56. C. ICJ has jurisdiction over the dispute based on jus cogens principles 52 Article 59, Ibid 53 Article 61 (2), Ibid 54 Article 65, Ibid 55 Paragraph 9, Record 56 Answer to Question No. 5, Clarifications Page 28 of 44

29 In reference to Article 66 of the VCLT on jus cogens principles, the applicant submits the application to the ICJ 57 and not through arbitration. The language of the self-executing provision of the law suggests the mandatory jurisdiction of the ICJ when the issue involves the applicability of jus cogens principles. The applicant submits that the existing conventions regarding biological diversity and the environment are jus cogens principles since the CBD defines the conservation is a common concern of all mankind which is important to the evolution and maintenance of life sustaining systems of the biosphere 58. To this is the responsibility of the states to ensure that the activities within their control or jurisdiction do not cause damage to the environment of other states or of areas beyond the limits of their jurisdiction 59. There are three principles that apply regarding state responsibility and consequently on the jurisdiction of the ICJ: (1) biological diversity is a common concern of all mankind, (2) biological diversity contributes to the proper maintenance of the biosphere, and (3) it is the biosphere that maintains life on the Gaea which benefits all its inhabitants most especially humans. Biological diversity, as a common concern of all mankind, is a res communis which requires a strict regulation on exploration and exploitation and needs the establishment of management mechanisms which would employ the criterion of equity in distributing the benefits of such activity. This is consistent with the precautionary approach and states are mandated to observe the strict liability doctrine because any act that adversely affect the right of other states and consequently its inhabitants both with respect to their right to life and their right to a healthful 57 Article 66 (a), VCLT 58 Preamble, CBD 59 Article 3, Ibid Page 29 of 44

30 and balance ecology as espoused by the provisions of the Stockholm Declaration and the Rio Declaration which codifies environmental law as a jus cogens principle. The respondent, it is bound to observe the declarations pertaining to the environment, biodiversity and biosafety since attendance is a signification of an intent to be bound by the provisions of the said declarations 60. None other than the VCLT provided that a state is mandated to refrain from acts that would defeat the object and purpose of the treaty 61. Both declarations refer to the primordial requirement of the right to life referring to the environment since man is both a creature and molder of the environment 62 which must be understood in the light of the interdependence of earth 63 and commonly known as the rhythm and harmony of nature or ecology 64. II. The respondent committed an International Wrongful Act The respondent's legislation to effect the ocean fertilization plan equates to attribution by a state organ 65. The issue leans towards to plan to stimulate phytoplanktons growth through ocean 60 Paragraph 11, Record 61 Article 18, VCLT 62 Preamble, Stockholm Declaration 63 Preamble, Rio Declaration 64 Oposa v. Factoran, GR No (Philippines), (1991) 65 Article 4 (1) (2), Articles on Responsibility of States Page 30 of 44

31 fertilization 66 where, despite the stern warning of applicant 67, respondent continued, with its national legislation, by dumping 15,000 kg of ferrous sulfate over the Muktuk Ocean 68. This caused the death of nine Narwhals off the Coast of Rinnuco 69. The exchange of diplomatic notes 70 shows direct espousal of the respondent on the ocean fertilization rendering direct attribution of liability to state. A. Respondent violated the 1996 Protocol to the London Convention The preambular clause of the treaty seeks to establish the prevention and elimination of pollution of the marine environment from dumping at the sea 71. It emphasizes the intent of the state parties on the obligation to apply a precautionary approach 72 to environmental protection upon reason to believe that wastes or other matter introduced into the marine environment are likely to cause harm even when there is no conclusive evidence to prove causal relation between 66 Paragraph 12, Record 67 Paragraph 13, Ibid 68 Paragraph 15, Ibid 69 Paragraph 20, Ibid 70 Paragraphs 13-20, Ibid 71 Preamble, London Protocol, 1996 (as amended by 2006 Protocol) 72 Paragraphs 158, 162 & 167, United Nations General Assembly, A/RES/66/288; Preamble, Paragraphs 82, 88, 98 (B), 110, United Nations General Assembly, A/RES/62/215; Paragraph 48, 171 in relation to 146 & 173, United Nations General Assembly, A/RES/67/L21 Page 31 of 44

32 inputs and their effects 73. The treaty, both states are parties 74, renders operative all provisions therein vesting every enforceable and demandable rights under its purview. 1. Ferrous Sulfate is prohibited by the Protocol. Any deliberate disposal into the sea of wastes or other matters 75 which does not fall under the exception clauses 76 is prohibited. The used of Ferrous Sulfate 77 for alleged reduction of the carbon emission is ineligible for dumping under the protocol being an inert inorganic geological material 78 and bulky items comprising of iron 79 which are generated not in a small island with small community and has practicable access other than dumping. The release of 15,000 kg. of ferrous sulfate over a 6 week period to a 2000 square kilometer area within the respondent s exclusive economic zone 80 falls at par with the criteria of the protocol to be includible within the prohibition of dumping wastes and other matter Article 3(1) London Protocol, 1996 (as amended by 2006 Protocol); Resolution 1, 2 (2010), 4 (8) London Convention-Protocol (2008) 74 Paragraph 17, Record 75 Article 1, 8, London Protocol, 1996 (as amended by 2006 Protocol) 76 Section 1 Annex 1, Ibid 77 Paragraph 15, Record 78 Article 1(5), Annex 1, London Protocol, 1996 (as amended by 2006 Protocol) 79 Article 1(7) Annex 1, Ibid 80 Paragraph 15, Record 81 Article 4, London Protocol, 1996 (as amended by 2006 Protocol) Page 32 of 44

33 2. Extensive study as a condition precedent for dumping wastes The treaty calls the duty on the respondent make a detailed description and characterization of the waste and a precondition for consideration of alternatives in deciding whether it may be dumped. The records do not show compliance on the requisites aside from the conduct of the extensive environmental impact assessment 82. The applicant submits that there should be a convincing evidence to this effect 83 and not on self-serving assertions 84 when an ample opportunity to prove the fact in issue 85 is given. The respondent s extensive environmental assessment findings is disputed 86 as it modifies the food web of marine biodiversity. The disputed fact appears to be in the possession of the respondent. The burden of evidence is upon the respondent on this matter Paragraph 12, Record 83 Military and Paramilitary Activities in and against Nicaragua (Merits), 1986 I.C.J Chorzów Factory Case (Merits), 17 PCIJ (Series A) 29, 51 (1928) 85 Eduardo Valencia-Ospina, Evidence Before the International Court of Justice, 1 Int l L.F. D. Int l 203 (1999); Jens Evensen, Evidence Before International Courts, 25 Nordisk Tidsskrift Int l Ret 44 (1955); W. Michael Reisman and Eric E. Freedman, The Plaintiff s Dilemma: Illegally Obtained Evidence and Admissibility in International Adjudication, 76 (4) AJIL (Oct., 1982); Neill H. Alford, Jr., Fact Finding by the World Court, 4 Vill. L. Rev. 37 (1959) 86 Paragraph 13, Record 87 Corfu Channel Case, 1949 I.C.J.; Chittharanjan Felix. Amerasinghe, Evidence in International Litigation (Brill, 2005); Norwegian Loans Case, 9 I.C.J Page 33 of 44

34 The bare assertion of compliance of having extensive environmental impact fails to convince as it is a conclusion of fact warranting recalibration of evidence. In Whaling in the Antarctic Case 88 the respondent has the burden of evidence relative to the remedial measures done contrary to the precautionary principle. 3. No assessment finding was given to the applicant The respondent cannot ignore the facts 89 that warrant the availability of relevant information to the other contracting party relative to the scientific and technical activities and measures undertaken 90 ; vigilant monitoring and assessment conducted 91 ; and scientific and technological programs and their objectives. 92 The diplomatic notes 93 equate into an international agreement 94 and a negotiation vehicle for the absence of formal compliance renders not its efficacy 95. This is a request 96 to make information available as discussed above. Though not 88 ICJ Reports 2014, pp Paragraph 13,14,16-21, Record 90 Article 14 (2.1), London Protocol, 1996 (as amended by 2006 Protocol) 91 Article 14 (2.3), Ibid 92 Article 14 (2.2), Ibid 93 Paragraph 13 & 17, Record 94 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits), ICJ Reports, 2001, paras. 110 ff. 95 Ibid, paras. 143 ff. 96 Article 14 (2), London Protocol, 1996 (as amended by 2006 Protocol) Page 34 of 44

35 denominated as such, the treaty provisions must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose 97. This renders operative the duty to make available the disputed information which the respondent omitted. 4. No consultation was made with the applicant The London Convention required the consultation with the other party who may be affected and promptly recommend the most appropriate procedures adopted. This is pursuant to mandatory duty of the avoidance of damage to marine environment. The respondent s action and manner of informing is blue-sky and perfunctory 98 because the overt act failed to seek opinion or information to make a decision as it is commonly understood 99. The subsequent exchange of notes negates the respondent s contention. 5. The precautionary principle was not observed The respondent s ocean fertilization 100 upon the applicant s dissent 101 is a reasonable nexus upon the death of the narwhals 102. This error is what precautionary seeks to abhor by taking 97 Article 31, VCLT 98 Paragraph 13, Record 99 Article 31, VCLT 100 Paragraphs 13, 15, 18, & 21, Record 101 Paragraphs 14, & 17, Ibid 102 Paragraph 20, Ibid Page 35 of 44

36 preventive and reactive remedial measures 103. Parties must strive to take precautionary measures to prevent or minimize environmental degradation and agree that the polluter should bear the cost of pollution, transboundary or otherwise, with due regard to the public interest and without distorting investment in the energy cycle or international trade. 104 The fact that huge mass of biodiversity is at stake upon the execution of the ocean fertilization should have called a higher degree of diligence to take preventive measures proportionate to its economic and scientific capabilities 105 to avoid any environmental degradation with reasonable nexus 106 to the disputed 103 F.G.Minujin, Debt-for-NatureSwops: A Financial Mechanism to Reduce Debt and Preserve the Environment, 21 Environmental Policy and Law, 1991, p. 146, and Susan George, The Debt Boomerang: How Third World Debts Harm Us All, (Pluto Press, London, 1992), pp A. D Amato, Do We Owe a Duty to Future Generations to Preserve the Global Environment?, 84 AJIL, 1990, p. 190; Philippe Sands, Principles of International Environmental Law (Cambridge University Press, 2003), p. 199; E. Weiss, Our Rights and Obligations to Future Generations for the Environment, 84 AJIL, 1990, p. 198, and E. Weiss, Intergenerational Equity.; Oposa v.factoran, Supreme Court of the Philippines, GR No , July 31, 1991, 33 ILM, 1994, pp. 173, 185, and The Request for an Examination of the Situation in Accordance with Paragraph 63 of the Nuclear Tests Case (Dissenting Opinion: Judge Weeramantry), ICJ Reports, 1995, pp. 288, 341; 106 ILR, pp. 1, Article 2, London Protocol, 1996 (as amended by 2006 Protocol) 106 Stockholm Declaration Page 36 of 44

37 act. The strict liability doctrine 107 and the maxim sic utere tuo ut alienum non laedas 108 mandate nations with responsibility to ensure that activities do not cause damage to the environment. Respondent should have cautioned in doing the ocean fertilization and should have calculated the propensity of hurting the mass biodiversity and human threats because iron substances when taken into the body may cause physiologic imbalances and pathophysiologic conditions causing fatality if left medically unattended 109. The nexus between the dumping and the Narwhals death is supported by a study 110 finding that iron compounds leads to toxic levels and debilitation. It shows only 1 percent margin of error 111. The reactive measure of the respondent to temporarily cease its project and upon completion of the first phase assessment findings, discretion will be exercised to meet the exigencies 112 is flawed. 107 US v Canada, 3 RIAA 1905 (1938) 108 Corfu Channel Case (Merits), ICJ Reports, Harrison, Principles of Internal Medicine (18th edition, McGraw Hill Companies, Inc, 2012), p ; Carol Mattson Port, Pathophysiology: Concepts of Altered Health States (Lippincott Williams and Wilkins, 1993), p Di Torro, D. M., Zarba, C. S., Hansen, W. J., Berry, W. J., Swartz, R.C., Cowan, C. E., Pavlou, S. P., Allen, H. E., Thomas, H. A., and Paquin, P. R., Technical basis for establishing sediment quality criteria for non-ionic organic compounds using equilibrium partitioning. Environ. Toxicol. Chem. 10(12), , (1991). 111 Polit and Beck, Research and Evaluation (6 th ed), pp. 56; 112 Paragraph 19, Record Page 37 of 44

38 6. No proper observance of the pacta sunt servanda The rule of pacta sunt servanda is based on good faith 113 in the exercise of international obligations 114. The requirement of compliance and good faith militates against the respondent for there was no compliance with the precautionary principle and London Protocol. The reservation clause cannot be invoked 115 because the act is contrary to the object and purpose of the treaty Paris Convention does not justify non-compliance with the London Convention and its Protocols Respondent s defense on reduction of the greenhouse gases in compliance with the Paris Convention may not be invoked because it is only a signatory and not a state party. The obligation is limited only to non-performance of any act defeats the purpose of the Treaty 117. Respondent failed to consider that by doing so, it made a unilateral discretion to curtail and suspend the treaty s operation which is not sanctioned by VCLT. Non-compliance of the other state is not an excuse to 113 Nuclear Tests Cases (Judgment), ICJ Reports, 20 December 1974, pp. 253, 268; 57 ILR, pp. 398, Border and Transborder Armed Actions Case, ICJ Reports, 1988, p. 105; 84 ILR, p. 218; 115 Paragraph 7, Record 116 Article 19, VCLT 117 Article 18, Ibid Page 38 of 44

39 justify the non-compliance of a State party because the purpose treaty remains. 118 Declarations of a State agent bind the State which cloaked the authority 119. State parties are bound to comply in good faith 120 on every obligation and may not invoke its internal law 121 to justify noncompliance 122 with the London Convention and its Protocols. The respondent s violation of the doctrine of pacta sunt servanda 123 warrants a breach of its international obligation. III. The respondent did not abide with CMS: Narwhals are protected species Both state parties ratified 124 the Convention which cloaked protection over Narwhals 125 that inhabit the Muktuk ocean 126 which are included in Annex I 127. The protection is not limited to 118 Gabcikovo-Nagymaros Project, ICJ, 1997,pp.78, 116 ILR, p. 1; Shrimp Turtle Case, WTO Appellate Body, 38 ILM, 1999, p. 121 para Nuclear Test Case (Judgment), 20 December Section 26, VCLT 121 Paragraph 18, Record 122 Section 27, VCLT 123 Article 26, Ibid 124 Paragraph 8, Record 125 Section 4, Appendix I & II, CMS 126 Paragraph 3, Record 127 Section 4, Appendix I & II, CMS Page 39 of 44

40 the named species 128 and migratory species with higher taxon 129, it is subject to expansion to species with unfavorable conditions which require international agreements for their conservation and management 130. The treaty imposed upon the state parties to take necessary steps to conserve the species and their habitats 131 to avoid being endangered 132. Migratory species may be listed in both Appendices because of the possibility of avoiding distinction between those covered by independent agreement and not. This is to give effect to the doctrine that provisions of a treaty should be harmonized to give effect to all without defeating the treaty s purpose 133 or intendment. 134 States are and must be the protectors of the migratory species that live or pass through their jurisdiction 135, which respondent violated. Furthermore, the respondent must protect the Cetaceans and its higher taxon being in Appendix I 136 through habitat restoration 137 and to 128 Section 1 (a), Appendix I & II, Ibid 129 Section 1 (b), Appendix I & II, Ibid 130 Article IV (1), Ibid 131 Article II (1), Ibid 132 Article IV (2), Ibid 133 Article 18, VCLT 134 Soering v. UK, European Court of Human Rights, Series A, No. 161, p. 34 (1989), 98 ILR, p. 270; Artico v. Italy, ECHR, Series A, No. 37 (1980) and Loizidou v. Turkey, ECHR, Series A, No. 310, p. 23 (1995); 103 ILR, p Preamble, CMS 136 Section 4, Appendix I & II, Ibid 137 Article 3 (4) (a), Ibid Page 40 of 44

41 prevent, remove, compensate for or minimize as appropriate, the adverse effects of activities or obstacles that seriously impede or prevent the migration of species 138. There were several treaties and multilateral conventions entered relative to the Conservation of Cetaceans and Their Habitats in different global regions with a bolstered scheme to protect Appendix I and II-listed species with distinction only on the relative capability of each state thus, evidencing state practice and opinio juris as a legally binding customary international law. IV. The respondent breached CBD: Narwhals is a part of the Mass Biological Diversity 139 The respondent, in the exercise of its sovereign right to exploit their own resources, is obliged to ensure that the activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction. 140 The respondent must also adapt 141 its existing national strategies for conservation of the mass biodiversity; identify processes which are likely to have significant impact 142 on the conservation 143 of the cetaceans and Narwhals vis à vis regulation and management 144 of biological diversity conservation. 138 Article 3 (4) (b), Ibid 139 Paragraph 3, Record 140 Article 3, CBD 141 Article 6(a), Ibid 142 Article 6(c), Ibid 143 Article 8(c), Ibid 144 Article 8(f), Ibid Page 41 of 44

42 The respondent also failed to make its environmental impact assessment 145 conform with the CBD guidelines 146 because it did not allow public participation on the ocean fertilization study relative to its adverse effects on biological diversity. Moreover, it is imperative to introduce arrangements 147, consultation 148, and immediate notification upon imminent or grave danger 149 to affected states, conjunctive with initiation of remedial measures to prevent or minimize danger 150. Herein, the respondent' cessation with reservation banking on its political discretion 151 of the ocean fertilization hardly suffice the requirement because the collection and analysis of the initial phase of the project again failed to satisfy the consultation requirement as discussed above; thus evading the obligation imposed upon by CBD cloaked by inchoate compliance. Evidently, compliance in good faith is more apparent than real. The Addis Ababa principle 152 states that users of biodiversity components should seek to minimize waste and adverse environmental impact and optimize benefits from uses. V. UNCLOS protection on biodiversity was breached by respondent 145 Paragraphs 12-15, Record 146 Article 14, CBD 147 Article 14 (b), Ibid 148 Article 14 (c), Ibid 149 Article 14 (d), Ibid 150 Article 14 (d), Ibid 151 Paragraph 19, Record 152 COP, Annex II, Decision VII/2 Page 42 of 44