IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE THE HAGUE THE NETHERLANDS CASE CONCERNING POLLUTION OF THE MUKTUK OCEAN THROUGH OCEAN

Team 1744 IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE THE HAGUE THE NETHERLANDS CASE CONCERNING POLLUTION OF THE MUKTUK OCEAN THROUGH OCEAN FERTILIZATION Federal States of Aeolia AND Republic of Rinnuco MEMORIAL OF THE APPLICANT THE FEDERAL STATES OF AEOLIA

TABLE OF CONTENTS INDEX OF AUTHORITIES... iv STATEMENT OF JURISDICTION... xi QUESTIONS PRESENTED... xii STATEMENT OF FACTS... xiii SUMMARY OF ARGUMENT... xv PLEADINGS... 1 A. RINNUCO BREACHED ITS TREATY OBLIGATIONS... 1 1. Rinnuco contravened UNCLOS... 1 (a) Rinnuco unlawfully polluted the marine environment... 1 (b) Rinnuco reneged on its obligations to prevent, reduce and control pollution... 2 (c) Rinnuco contravened its obligation to preserve the marine environment... 3 (d) Rinnuco violated its obligation to preserve vulnerable marine life... 4 2. Rinnuco violated the CBD... 5 (a) Rinnuco encroached on Article 8 of the CBD... 5 (b) Rinnuco breached Article 14 of the CBD... 7 3. Rinnuco infringed the CMS... 8 4. Rinnuco contravened the London Convention and the London Protocol... 9 B. RINNUCO S EXPERIMENT BREACHES INTERNATIONAL LAW... 11 1. Rinnuco s experiment caused transboundary harm... 11 2. Rinnuco s actions do not comply with the precautionary principle... 12 3. Rinnuco breached the principle of proportionality... 14 C. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION IN THIS MATTER... 16 1. The Court has jurisdiction under UNCLOS... 16 (a) Rinnuco s notice of revocation is invalid... 16 (b) Rinnuco has breached obligations under UNCLOS... 17 (c) The Court has jurisdiction under UNCLOS in relation to breaches of other international treaties... 18 ii

2. The Court has jurisdiction under the Convention on Biological Diversity (CBD)... 19 3. The Court has jurisdiction under London Protocol and London Convention... 19 D. RINNUCO CANNOT RELY ON THE DEFENCE OF MITIGATION OF CLIMATE CHANGE... 20 1. The climate change treaties do not provide justification for carrying out ocean fertilization activities... 20 2. Principles of international law do justify carrying out ocean fertilization activities... 22 3. Rinnuco cannot rely on the defence of climate necessity... 22 CONCLUSION AND PRAYER FOR RELIEF... 24 iii

INDEX OF AUTHORITIES TREATIES AND CONVENTIONS Convention on Biological Diversity, 1760 UNTS 79; 31 ILM 818 (1992) 5,7 Convention on the Conservation of Migratory Species of Wild Animals, 1651 9 UNTS 333; 19 ILM 15 (1980); ATS 1991/32; BTS 87 (1990) London Convention on the Prevention of Marine Pollution by Dumping of 10 Wastes Dec. 29, 1972, 1046 U.N.T.S. 13. Protocol to the Convention on the Prevention of Marine Pollution by 11,12 Dumping of Wastes and Other Matter, 7 November 1996, 2006 ATS 11. Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331(1969). 19 United Nations Convention on the Law of the Sea 1982 21 ILM 1261 (1982). 2,3,4,11,20 United Nations Framework Convention on Climate Change 1771 UNTS 107; 22 S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992) UN DOCUMENTS Draft Articles on Responsibilities of States for International Wrongful Acts, 24 Y.B of the International Law Com., Volume 2 (part 2) (1996). Resolution LC-LP.2 32/15 (2010). 10,11 iv

Rio Declaration on Environment and Development, adopted by the UN 10 Conference on Environment and Development, Rio de Janeiro (Brazil), 3 14 June 1992, UN Doc. JUDICIAL AND ARBITRAL DECISIONS Application of the Convention on the Prevention and Punishment of the 18 Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports (2008). Case concerning fisheries jurisdiction (Spain v Canada) (Jurisdiction of the 17,18 Court), Summaries of judgements, advisory opinions and orders of the International Court of Justice (1998). Case Gabčikovo-Nagymaros Project (Hungary v. Slovakia) [1997] ICJ 13 Reports 1997. European Court Reports 2010 II-00491 14 Joint Declaration Judges Hossain and Oxman International Tribunal on the 12 law of the Sea, Request for Provisional Measures (Malaysia v Singapore), 2003. Legality of the threat or use of nuclear weapons, [Nuclear Weapons case] 13,15 1996 Advisory Opinion of the ICJ - Dissenting opinion of Judge Weeramantry. Pulp Mills on the River Uruguay (Argentina. v. Uruguay) 2010 I.C.J 14. 14 R v Secretary of State for the Environment, ex parte RSCB Case C -44/95. 16 v

Southern Bluefish Tuna Cases (New Zealand v Japan; Australia v Japan) 14,19, 20 Provisional Measures 1999. Trail Smelter arbitration (United States v Canada) RIAA 1941 1907. 12 BOOKS, DIGESTS AND RESTATEMENTS BIRNIE, BOYLE AND REDGWELL, INTERNATIONAL LAW & THE 22 ENVIRONMENT, (3RD EDN. OXFORD UNIVERSITY PRESS 2009). CRAWFORD, THE INTERNATIONAL LAW COMMISSION S ARTICLES 24 ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (CAMBRIDGE, CAMBRIDGE UNIVERSITY PRESS 2002). HEIDE- JORGENSEN AND DIETZ, ENCYCLOPAEDIA OF MARINE 5,6,7 MAMMALS, (1995). FRANK AND BERNANKE, PRINCIPLES OF ECONOMICS (2ND ED, 11 MCGRAW-HILL/IRWIN, NEW YORK, 2004). SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 24 (CAMBRIDGE UNIVERSITY PRESS 2003). SCHEIBER, PAIK, REGIONS, INSTITUTIONS, AND THE LAW OF THE 23 SEA: STUDIES IN OCEAN GOVERNANCE (MARTINUS NIJHOFF PUBLISHERS 2013). vi

ESSAYS, ARTICLES, AND JOURNALS Allsopp, Santillo and Johnston, A Scientific Critique of Oceanic Iron 4 Fertilization as a Climate Change Mitigation Strategy, Greenpeace Research Labratories Technical Note 07/2007, (2007). Evans-Pritchard Jayanti, A balancing act: reassessing ocean iron 7,22,24 fertilization s status under international environmental law in conjunction with algae biofuel production, International Energy Law Review (2012). Franck, On Proportionality of Countermeasures in International Law, The 15 American Journal of International Law 102 (4) 715 (2008). Freestone, Rayfuse, Ocean Iron Fertilization and International Law (2008) 8,22 364 Marine Ecology Progress Series 227. Freestone, The Road to Rio: International Environmental Law after the Earth 14 Summit, 6, Journal of Environmental Law 193 at 221 (1994). Ginzky, Herrmann, Kartschall, Leujak, Lipsius, Mäder, Schwermer, Straube, 8 Geoengineering: effective climate protection or megalomania? (2011), available online at http://www.umweltbundesamt.de/uba-info-mediene/4125.html. Koh, A Constitution for the Oceans, in United Nations, The Law of the Sea 2 (New York: United Nations, 1983). Marcinak, Nawożenie Oceanów Żelazem (Ocean Iron Fertilization), Prawo 23 Morskie, t. XXVII (March 31, 2011), available online at: https://ssrn.com/abstract=2400492. vii

Marz, Arctic Sea Ice Ecosystem: A summary of species that depend on and 6 associate with sea ice and projected impacts from sea ice changes (2010), available online at: http://www.caff.is/assessment-series/97-arctic-sea-iceecosystem-a-summary-of-species-that-depend-on-and-associatewith/download. McIntyre and Mosedale, The Precautionary Principle as a norm of customary 13 international law, 9[2] Journal of Environmental Law 1997. Oxman, The Duty to Respect Generally Accepted International Standards, 19,20 New York University Journal of International Law and Politics (1991) Shadbolt, Cooper and Ewins, Breaking the Ice: International Trade in 7,8 Narwhals, in the Context of a Changing Arctic, Traffic and WWF, (2015) at 18, available online at: http://assets.worldwildlife.org/publications/774/files/original/traffic_narw hal.pdf?1426192894. Shepherd, Geo-engineering the Climate: Science, Governance and 2,8,25 Uncertainty, London Royal Society (2009). Tremblay, Eco-terrorists facing Armageddon: The Defence of Necessity and 25 Legal Normativity in the Context of Environmental Crisis, (2012) 58 (2) McGill Law Journal. Verlaan, Geo-engineering, the Law of the Sea, and Climate Change, (2009) 10,21 CCLR 4 446 6 viii

Wittnich, Belanger, Akin, Bandali, Wallen, A wash in a Sea of Heavy Metals: Mercury Pollution and Marine Animals (2004), available online at: http://www.oers.ca/research/mercury-report.pdf. MISCELLANEOUS Bulletin of the Atomic Scientists, 20 Reasons Why Geo-engineering May Be A 2 Bad Idea, May/June 2008, available online at: http://climate.envsci.rutgers.edu/pdf/20reasons.pdf. Information on the Haida Salmon Restoration project is available at 16 www.haidasalmonrestoration.com. Intergovernmental panel on Climate Change, Contribution of Working Group 1 II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, (2007)793. McLeish, The Narwhals Left Tooth, (2011), available Online at: 6 http://narwhalslefttooth.blogspot.ie/2011/05/pollutants-in-narwhal-tissuesraises.html. Owada, International Environmental Law and the International Court of 19 Justice, Inaugural Lecture at the Fellowship Programme on International and Comparative Environmental Law, available online at: http://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf. Proposal for the Inclusion of Species on the Appendices of the Convention on 5 the Conservation of Migratory Species of Wild Animals, Available online at: ix

http://www.cms.int/sites/default/files/document/cms_cop3_ii_07_monodon_ monoceros.pdf. Schneider, Earth systems engineering and management, Nature, 409, (2001). 11 See also Allenby, Climate change negotiations and geoengineering: Is this really the best we can do?, Environmental Quality Management 20, (2010): 1-16 DOI: 10.1002/tqem.20276, available online at: http://doi.wiley.com/10.1002/tqem.20276. x

STATEMENT OF JURISDICTION The Federal States of Aeolia (Applicant) and the Republic of Rinnuco (Respondent) submit their dispute to this Honorable Court, pursuant to Article 36, paragraph 2, and Article 40 of the Statute of the International Court of Justice. On the 11 July 2016, the parties signed a special agreement and submitted it to the Registrar of the Court. See Special Agreement Between the Federal States of Aeolia and the Republic of Rinnuco for Submission to the International Court of Justice on Differences Between Them Concerning Questions Relating to Ocean Fertilization and Marine Biodiversity. (R. at 2 5). The Registrar for the Court addressed notification to the parties on 23 June, 2016. (R. at 2). xi

QUESTIONS PRESENTED 1. WHETHER RINNUCO VIOLATED INTERNATIONAL LAW BY CONDUCTING ITS OCEAN FERTILIZATION EXPERIMENT IN THE MUKTUK OCEAN. 2. WHETHER ANY RE-INITIATION OF THE OCEAN FERTILIZATION PROJECT WOULD BE IN BREACH OF INTERNATIONAL LAW. 3. WHETHER THIS HONORABLE COURT HAS JURISDICTION OVER THIS DISPUTE IN ACCORDANCE WITH ARTICLE 27 OF THE CONVENTION ON BIOLOGICAL DIVERSITY (CBD) AND ARTICLE 287 OF UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS). xii

STATEMENT OF FACTS The Federal States of Aeolia (Aeolia) and the Republic of Rinnuco (Rinnuco) are neighbouring coastal states located on Scheflutti, a continent surrounded by the Muktuk Ocean, located in the Arctic Ocean. Narwhals (Monodon Monoceros) are commonly seen off the coasts of both Aeolia and Rinnuco. The economy of Aeolia has a strong ecotourism sector that depends primarily on whale-watching and various other expeditions that focus on narwhals. Aeolia has invested in its interests by holding an annual festival celebrating narwhals. In an attempt to enhance its understanding into this endangered species that are essential to the integrity of the marine environment, Aeolia possesses the only research institute on Scheflutti that studies narwhals. Additionally, Aeolia and Rinnuco have enacted legislation that prohibits the hunting of narwhals in the Muktuk Ocean. On 21 November 2014, Rinnuco announced its plans to engage in an ocean fertilization project in Muktuk Ocean. Rinnuco failed to address Aeolia s expressed concerns and on the 5 December 2014, confirmed that each phase of its project would become successively larger in terms of the area covered and the amount of ferrous sulphate added. On 5 January 2015, in the absence of consent from Aeolia, Rinnuco released a research vessel, the Stanlee, to begin depositing ferrous sulphate 175 miles off the Rinnuco coast. xiii

On 13 February 2015, Rinnuco temporarily suspended its ocean fertilization project having completed the initial 6 week phase of the project. Rinnuco has not been able to provide any final determinations on the results from the project. On 22 April 2015, nine dead narwhals were found off the coast of Rinnuco. Researchers from Aeolia s Nautilus Research Institute conducted necropsies however they were unable to conclusively establish the cause of death of the narwhals. From January 2015 to March 2016 additional negotiations followed by mediation were conducted between Aeolia and Rinnuco but the process failed to resolve the dispute. On 4 April 2016, Aeolia submitted an Application instituting proceedings against Rinnuco. On 10 May 2016, Rinnuco submitted a Preliminary Objection contesting the jurisdiction of the International Court of Justice (ICJ) over the matter. The ocean fertilization project has been suspended until the ICJ can consider the matter. xiv

SUMMARY OF ARGUMENT Rinnuco has unlawfully polluted the marine environment and threatened vulnerable marine life that are integral to the biological diversity of the Muktuk Ocean. As such, Rinnuco contravened international treaties and customary international law. Aeolia and Rinnuco are both UN members and parties to the Statute of the International Court of Justice and the Vienna Convention on the Law of Treaties. They are contracting parties to the CBD, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Convention), the 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London Protocol), Convention on the Conservation of Migratory Species of Wild Animals (CMS). Both Aeolia and Rinnuco are parties to the UNCLOS. The scale of Rinnuco s ocean fertilization experiment is disproportionate. The Environmental Impact Assessment conducted was insufficient and failed to properly consider the damages and consequences to the environment. Rinnuco damaged the shared ecosystem of both Rinnuco and Aeolia. Thus, Rinnuco failed to act in accordance with the precautionary principle and the principle not to cause transboundary harm. xv

The ICJ has jurisdiction in relation to the interpretation and application of any dispute arising under UNCLOS. Rinnuco provided a written declaration to submit itself to the jurisdiction of the court in respect of the CBD. Rinnuco violated the CBD and UNCLOS and cannot rely on the defence of mitigation of climate change. Rinnuco cannot rely on the United Nations Framework Convention on Climate Change (UNFCCC) or the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) to renege on its obligation to protect and preserve the marine environment. Rinnuco infringed upon international law by conducting the initial phase of its ocean fertilization project and any re-initiation of this project would violate international law. xvi

PLEADINGS A. RINNUCO BREACHED ITS TREATY OBLIGATIONS 1. Rinnuco contravened UNCLOS (a) Rinnuco unlawfully polluted the marine environment The Muktuk Ocean is a shared resource between Aeolia and Rinnuco located near Greenland in the Arctic Circle. Both states share a duty to protect and conserve the marine environment and cetaceans, such as narwhals, that inhabit it. Rinnuco, without Aeolia s agreement, has undertaken ocean fertilization in the Muktuk Ocean. Ocean fertilization is a climate engineering technique used to remove carbon dioxide from the atmosphere through the artificial introduction of nutrients to the surface of the ocean. The current use of ocean fertilization is opposed because of its negative effects on marine biodiversity. 1 Nine weeks after Rinnuco s ocean fertilization experiment, nine dead narwhals were found off the coast of Rinnuco. Rinnuco s experiment has contributed to the deaths of these narwhals and its experiment will have devastating effects on the delicate marine environment of the Muktuk Ocean. 1 Intergovernmental panel on Climate Change, Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change, (2007)793 at 49. 1

UNCLOS 2 is the primary global instrument on the law of the sea. 3 Rinnuco and Aeolia are bound to comply with its obligations. 4 Article 1 of UNCLOS defines the pollution of the marine environment as an introduction by man, directly or indirectly, of substances or energy into the marine environment, which results, or is likely to result in harm to living resources and marine life. 5 It is not the nature of ferrous sulphate that is decisive here, but the potential deleterious effect on the marine environment. By depositing powdered ferrous sulphate in the Muktuk Ocean, Rinnuco has polluted the marine environment. Without conclusive evidence to support the long-terms effects of ocean acidification, any additional acid deposition would harm the ecosystem. 6 The continued acidification of the ocean threatens the entire biological chain. 7 Ferrous sulphate was introduced artificially which under the terms set out in Article 1, renders it a pollutant. 8 As such, it is subject to UNCLOS provisions. (b) Rinnuco reneged on its obligations to prevent, reduce and control pollution Rinnuco violated Article 210(2) of UNCLOS which provides that states shall take other measures as may be necessary to prevent, reduce and control such pollution. 9 Subsequent to 2 United Nations Convention on the Law of the Sea 1982 21 ILM 1261 (1982) [UNCLOS]. 3 Koh, A Constitution for the Oceans, in United Nations, The Law of the Sea (New York: United Nations, 1983), and xxxiii xxxvii considers UNCLOS to be the Constitution of the ocean. 4 Records, Annex A [9] 5. 5 UNCLOS, Art. 1. 6 Shepherd, Geo-engineering the Climate: Science, Governance and Uncertainty, London The Royal Society (2009), at 61. 7 Bulletin of the Atomic Scientists, 20 Reasons Why Geo-engineering May Be A Bad Idea, May/June 2008, available at: http://climate.envsci.rutgers.edu/pdf/20reasons.pdf. 8 UNCLOS, Art 1. 9 UNCLOS, Art 210(2). 2

Rinnuco s initial correspondence, Aeolia highlighted the negative consequences of engaging with ocean fertilization. While Rinnuco prepared an environmental impact assessment prior to the project, it did not address the negative effects that flow from polluting the marine environment. In the absence of such measures, Rinnuco breached Article 210(2). Rinnuco contravened Article 210(5) which prohibits states from dumping within its territorial sea and exclusive economic zone without the express prior approval of the coastal State. This further provides that coastal states such as Aeolia, have the right to permit, regulate and control such dumping after due consideration of the matter. 10 On 15 December 2014, Rinnuco passed a law approving and fully funding the planned ocean fertilization project. Rinnuco failed to obtain the consent of Aeolia when enacting this legislation. By engaging in the initial phase of the experiment without the express agreement of Aeolia, Rinnuco breached international law. (c) Rinnuco contravened its obligation to preserve the marine environment Rinnuco violated Articles 192, 194 and 195 of UNCLOS. Articles 192 and 194 provide that states shall take all measures necessary to prevent, reduce and control pollution in order to protect and preserve the marine environment. 11 Ocean fertilization activities can be directly included as prohibited measures through Article 195, which provides states shall act so as not to transfer, directly or indirectly, damage or hazards from one area to another or transform one type of pollution into another. 12 10 UNCLOS, Art 210(5). 11 UNCLOS, Art 192 and Art. 194(1). 12 UNCLOS, Art. 195. 3

The direct transfer of ferrous sulphate, the pollutant, by Rinnuco violated UNCLOS. The release of iron into the ocean causes algae in one region to consume all other nutrients. 13 This results in the circulation of water that is deficient in the key nutrients necessary to maintain a healthy marine environment. 14 While Rinnuco restricted the project within 200 nautical miles of its own coast, the chemical impact of ocean fertilization has resulted in damage to the Muktuk Ocean. Any re-initiation of the project would threaten the future welfare of Aeolia s marine environment. (d) Rinnuco violated its obligation to preserve vulnerable marine life Article 64 provides that all states, whose nationals fish in the region for the highly migratory species that are listed in Annex I, shall cooperate directly or through appropriate international organizations to ensure conservation. 15 This provides for the optimum utilization of such species throughout the region, both within and beyond the Exclusive Economic Zone (EEZ). 16 Annex 1 specifically lists narwhals as being worthy of special protection for these purposes. The migratory nature of the narwhal is demonstrated through the depth of their dives, which can descend up to 5,000 feet. 17 Rinnuco failed to comply with the direction to consider the welfare of migratory species, which resulted in the deaths of nine narwhals. 13 Allsopp, Santillo and Johnston, A Scientific Critique of Oceanic Iron Fertilization as a Climate Change Mitigation Strategy, Greenpeace Research Labratories Technical Note 07/2007, (2007) at 3. 14 Id. 15 UNCLOS, Art. 64(1). 16 UNCLOS, Part V, Art. 56. 17 HEIDE- JORGENSEN AND DIETZ, ENCYCLOPAEDIA OF MARINE MAMMALS, (1995) at 757. See also Clarifications to the Record at 4, no. 24. 4

2. Rinnuco violated the CBD (a) Rinnuco encroached on Article 8 of the CBD Rinnuco violated Article 8, which provides that each contracting party shall, as far as possible, manage biological resources important for the conservation of biological diversity whether within or outside protected areas, with a view to ensuring their conservation and sustainable use. 18 Aeolia s Nautilus Research Institute is the only research institute on Scheflutti that studies narwhals. 19 Rinnuco failed to cooperate with Aeolia in the management of biological resources which are crucial to the conservation of biological diversity in their shared ocean territory. 20 In previous studies, the indirect threat of pesticide contamination has been found to be a risk in the reduction of breeding success in the narwhal. 21 This has been demonstrated through the finding of reports performed by the Conference of Parties, which is the decision making organ of the CMS. The Third Meeting of the Conference of the Parties to CMS, COP 3 11/7, took place in order to consider the proposed listings on the CMS Appendices of narwhals as migratory species under threat. 22 This report showed that heavy metals have been detected in narwhal tissues collected from northern Baffin Island. 23 Other studies have also raised concerns regarding elevated levels of man-made 18 Convention on Biological Diversity, 1760 UNTS 79; 31 ILM 818 (1992) [CBD]. 19 Clarifications to the Records at 4, Q. 26. 20 Id. Article 8 (c). 21 Proposal for the Inclusion of Species on the Appendices of the Convention on the Conservation of Migratory Species of Wild Animals [3.3] at 3, available online at: http://www.cms.int/sites/default/files/document/cms_cop3_ii_07_monodon_monoceros.pdf. 22 Id. 23 Id. 5

organochlorines 24 and heavy metals such as cadmium, selenium and mercury, found in tissue samples collected from 150 narwhals in Greenland. 25 Pollutants such as heavy metals can linger for many decades and even centuries causing serious problems for future generations of animals. 26 Narwhals are near the top of the food chain and have a vital role in the health of the marine environment. 27 The narwhal is an important part of the Inuit culture, both as a source of trade, and as a symbol. 28 Rinnuco s failure to uphold their obligations under the CBD and minimize the potentially harmful effects of ocean fertilization, has resulted in irreversible damage to the ecosystems of the narwhal and their natural habitats. 29 24 HEIDE- JORGENSEN AND DIETZ, supra note 17. 25 McLeish, The Narwhals Left Tooth, (2011), available online at: http://narwhalslefttooth.blogspot.ie/2011/05/pollutants-in-narwhal-tissues-raises.html. 26 Wittnich, Belanger, Akin, Bandali, Wallen, A wash in a Sea of Heavy Metals: Mercury Pollution and Marine Animals (2004), available online at: http://www.oers.ca/research/mercury-report.pdf. 27 Marz, Arctic Sea Ice Ecosystem: A summary of species that depend on and associate with sea ice and projected impacts from sea ice changes (2010) at 37, available online at: http://www.caff.is/assessment-series/97-arctic-sea-ice-ecosystem-a-summary-of-species-thatdepend-on-and-associate-with/download. 28 Shadbolt, Cooper and Ewins, Breaking the Ice: International Trade in Narwhals, in the Context of a Changing Arctic Traffic and WWF, (2015) at 18, available online at: http://assets.worldwildlife.org/publications/774/files/original/traffic_narwhal.pdf?14261 92894. 29 HEIDE-JORGENSEN AND DIETZ, supra note 17. 6

(b) Rinnuco breached Article 14 of the CBD Rinnuco infringed Article 14(1) as it has failed to introduce appropriate measures requiring environmental assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to minimising such effects. 30 Rinnuco contravened Article 14(2) which provides that states shall introduce appropriate arrangements to ensure that the environmental consequences of programmes that are likely to have significant adverse impacts on biological diversity are taken into account. 31 Rinnuco has placed ferrous sulphate in the ocean in order to stimulate the growth of phytoplankton and thus increasing photosynthesis. 32 This results in the reduction of the level of carbon dioxide present in the atmosphere with the overarching aim of reducing the effects of climate change. 33 Model studies have shown that in actuality a greater proportion of carbon (up to 80%) is re-released into the atmosphere subsequent to ocean fertilization processes. 34 The negative consequences of engaging with unknown geoengineering techniques attaches a potential set of problems, the scope and severity of which cannot be foreseen. 35 As such, they cannot be understated. While Rinnuco has conducted their experiment for just six weeks, the sensitive nature of the marine 30 CBD, Art. 14(1). 31 CBD, Art. 14(2). 32 Evans-Pritchard Jayanti, A balancing act: reassessing ocean iron fertilisations status under international environmental law in conjunction with algae biofuel production, IELR, (2012) at 1. 33 Id. 34 Ginzky, Herrmann, Kartschall, Leujak, Lipsius, Mäder, Schwermer, Straube, Geoengineering: effective climate protection or megalomania? (2011) at 25, available at: http://www.umweltbundesamt.de/uba-info-medien-e/4125.html. 35 Shepherd supra note 6 at 17. 7

environment means that this short time-frame has the capacity to manifest grave long-term damage to the health of the Muktuk Ocean. Rinnuco breached Articles 14(1)(c) and 14(1)(d). This requires that Rinnuco shares necessary information in the interests of the marine environment. This information includes investigating the negative impacts of ocean fertilization on the marine environment. Some effects have been shown to relate to the disruption of marine food webs which could have disastrous effects for other organisms and species, and more disturbingly may actually result in the warming of the atmosphere and ocean surface. 36 The deaths of nine narwhals off the coast of Rinnuco demonstrates the grave danger ocean fertilization poses to the marine environment. As discussed, evidence suggests the re-release of carbon can have a negative impact on the environment and increases the consequences of climate change. 37 This results in shrinking ice cover that is vital for narwhals in hiding from predators such as killer whales. 38 In the absence of a precautionary approach, there is a real and grave threat to the sustainability of the narwhal. As such, it is likely further damage will result from Rinnuco continuing their ocean fertilization experiment. 3. Rinnuco infringed the CMS The CMS provides a global platform for the conservation and sustainable use of migratory animals and their habitats. Both Aeolia and Rinnuco are listed as Range States for narwhals under the CMS, which provides for narwhals as near endangered under Appendix II. As such 36 Freestone and Rayfuse, Ocean Iron Fertilization and International Law (2008) 364 Marine Ecology Progress Series 227 at 229. 37 Id. 38 Shadbolt, Cooper and Ewins, supra. note 28 at 2. 8

narwhals have acquired special protection under CMS provisions. Article 4(3) and 4(4) of the CMS provides that Range States shall endeavour to conclude agreements that benefit the species and give priority to those species in an unfavourable conservation status. 39 The CMS further advises that State Parties are encouraged to take action with a view to concluding agreements for any population or any geographically separate part of the population of any species. 40 Rinnuco violated the CMS by failing to mitigate the impacts of ferrous sulphate on the marine environment. In the absence of any agreement to consider the impact of their experiment on marine life, Rinnuco failed to prioritise the unfavourable conservation status of the narwhal as required under the CMS. 4. Rinnuco contravened the London Convention and the London Protocol The London Protocol and London Convention, UNCLOS and CBD are complementary and mutually reinforcing. 41 Resolution LDC.44(14) and Article 3.1 requires parties to the London Convention to comply with the precautionary principle in environmental protection. 42 Article 15 of the Rio Declaration states in order to protect the environment, the precautionary principle will be widely applied by states. 43 In line with this approach, ocean fertilization 39 Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333; 19 ILM 15 (1980); ATS 1991/32; BTS 87 (1990) [CMS], Art 4(3) and Art. 4(4). 40 CMS, Art. I (1). 41 Verlaan, Geo-engineering, the Law of the Sea, and Climate Change, (2009) CCLR 4 446 at 454. 42 London Convention on the Prevention of Marine Pollution by Dumping of Wastes Dec. 29, 1972, 1046 U.N.T.S. 138 [London Convention]. 43 Rio Declaration on Environment and Development, adopted by the UN Conference on Environment and Development, Rio de Janeiro (Brazil), 3 14 June 1992, UN Doc. A/CONF.151/26 (Vol. I), 12 Aug. 1992, Principle 15, available at: 9

cannot be undertaken until there is an adequate scientific basis to justify this research. The Environmental Impact Assessment (EIA) undertaken by Rinnuco failed to meet the assessment procedure under the London Protocol as these activities were not subject to a thorough scientific assessment. 44 Rinnuco s activities breached the precautionary principle as set out under the Rio Declaration and the London Protocol and which also underpins the CBD. Rinnuco violated the requirements set out under Resolution LC-LP.2 (2010). 45 This provides guidance in respect of assessing the legitimacy of framework for scientific research that involves ocean fertilization experiments. 46 Rinnuco failed to undertake a full environmental assessment of the proposed activity including consideration of the likely environmental impact of the experiment and the risks (both known and unknown) associated with it. Even if Rinnuco s ocean fertilization could be classified as a scientific experiment within the London Protocol, the framework requires Rinnuco to put in place procedures to monitor and facilitate adaptive management in respect of the experiment. 47 Dumping is defined under UNCLOS as the deliberate disposal of waste or other matters at sea. 48 Article 4 clarifies that the placement of matter which is contrary to the aims of the Convention or Protocol is to be regarded as dumping. 49 This provides that particular attention http://www.unep.org/documents.multilingual/default.asp?documentid=78&articleid=1163. [Rio]. 44 London Convention, Art. 14(4). 45 Resolution LC-LP.2 32/15 (2010). 46 Id. 47 Id. Annex 6 at 3. 48 UNCLOS, Art 1(5)(a). 49 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 7 November 1996, 2006 ATS 11 [London Protocol]. 10

shall be paid to opportunities to avoid dumping in favour of environmentally preferable alternatives. 50 The reduction in the burning of fossil fuels provides a more productive and reliable method to mitigating climate change. Furthermore, these measures avoid the moral hazard created by Rinnuco s ocean fertilization experiment. 51 Rinnuco has failed to avoid dumping in favour of an environmentally favourable option 52 and has violated Article 4. 53 B. RINNUCO S EXPERIMENT BREACHES INTERNATIONAL LAW 1. Rinnuco s experiment caused transboundary harm Rinnuco added iron sulphate to the Muktuk Ocean, where currents spread this matter beyond national boundaries and can harm migratory animals such as narwhals. This ocean fertilization experiment has resulted in the death of nine narwhals, which are a shared resource between Aeolia and Rinnuco. These deaths show that Rinnuco have caused significant transboundary harm through their experiment and any re-initiation of this experiment will further breach the no harm principle. 50 Id. 51 FRANK AND BERNANKE, PRINCIPLES OF ECONOMICS (2 ND ED, MCGRAW- HILL/IRWIN, NEW YORK, 2004) AT 316. 52 Schneider, Earth systems engineering and management, Nature, 409, (2001). See also Allenby, Climate change negotiations and geoengineering: Is this really the best we can do?, Environmental Quality Management 20, (2010): 1-16 DOI: 10.1002/tqem.20276, available online at: http://doi.wiley.com/10.1002/tqem.20276. 53 London Protocol, Art. 4. 11

The no harm principle is an established rule of customary law. It was held in the Trail Smelter 54 arbitration case that no state has the right to use or permit the use of its territory in such a manner as to cause injury on or in the territory of another or the properties therein. In the Malaysia v Singapore case 55 the joint declaration noted that States must have due regard to the rights of other states and to the protection and preservation of the marine environment. The EIA failed to take account of the potential damage to the interests of Aeolia in their territory and Rinnuco did not mitigate the potential damage to migrating narwhals. Ocean currents spread the iron sulphate used in ocean fertilization beyond national state boundaries and can infringe on other states territories. This experiment caused transboundary harm outside of Rinnuco s EEZ and is not a legitimate exercise of sovereign rights. 2. Rinnuco s actions do not comply with the precautionary principle The precautionary principle is an established principle of customary international law, 56 which states that where an activity raises threats of harm to the environment or to human health, preventative decision making and measures must be pursued. Rinnuco has breached this principle by carrying out an ocean fertilization experiment on such a large scale and without the requisite scientific certainty. 54 Trail Smelter arbitration (United States v Canada) Arbitral Tribunal 1941 at 1907. 55 Joint Declaration of Judges Hossain and Oxman Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v Singapore) Request for Provisional Measures [2003] ITLOS at paragraph 16. 56 McIntyre and Mosedale, The Precautionary Principle as a norm of customary international law 9[2] Journal of Environmental Law 199 at 222. 12

In the Gabčikovo-Nagymaros Project 57 case both parties recognized the necessity to comply with this principle in the face of scientific uncertainty. Judge Weeramantry stated in the Nuclear Weapons Case, 58 that core principles of environmental law, such as the precautionary principle, do not depend on treaties for their application. These principles should be applied as a rule of international law as they are part of the sine qua non for human survival. 59 The strength of the precautionary principle was further recognized in the Pulp Mills case where it was stated the precautionary principle is not an abstraction or an academic component of desirable soft law, but a rule of law within general international law as it stands today. 60 In Southern Bluefish Tuna (Requests for Provisional Measures) 61 the International Tribunal for the Law of the Sea (ITLOS) applied the precautionary principle and recognized that it was necessary for the parties to act "with prudence and caution" to ensure effective conservation of southern bluefish tuna. Rinnuco must not continue with ocean fertilization on this scale due to the damage that it has caused on the ecosystem of the Muktuk Ocean a shared resource between Rinnuco and Aeolia. Furthermore, Rinnuco must stop this ocean fertilization experiment as there is no adequate scientific basis through which to conduct this experiment. In Artegodan GmbH v Commission of the European Communities 62 the European General Court stated that the high level of 57 Case Gabčikovo-Nagymaros Project (Hungary v. Slovakia) 1997 ICJ Reports. 58 Legality of the threat or use of nuclear weapons, [Nuclear Weapons case] 1996 Advisory Opinion of the ICJ - Dissenting opinion of Judge Weeramantry. 59 Id. 60 Pulp Mills on the River Uruguay (Argentina. v. Uruguay) 2010 I.C.J 14. 61 Southern Bluefish Tuna Cases (New Zealand v Japan; Australia v Japan) Provisional Measures 1999 at paragraph 77. 62 European Court Reports 2010 II-00491. 13

protection of the environment requires the application of the precautionary principle. This requires a change in emphasis in favour of a bias towards safety and caution. 63 The precautionary principle must be applied prospectively in this case, in order to prevent Rinnuco from damaging further the delicate ecosystem of the Muktuk Ocean and threatening more irreversible transboundary harm to narwhals and to their marine environment. 3. Rinnuco breached the principle of proportionality Rinnuco has breached the general principle of proportionality in undertaking an ocean fertilization experiment on this scale, which threatens narwhals and marine biodiversity in the Muktuk Ocean. The principle of proportionality is used to assess the lawfulness of measures where there is conflict between the interests of parties. 64 Furthermore, as stated in the Nuclear Weapons case the ICJ held that respect for the environment is a key element in assessing whether an action is in conformity with the principles of necessity and proportionality. 65 Firstly, the scale of Rinnuco s experiment is disproportionate. Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization states that due to the scientific uncertainties surrounding ocean fertilization, activities other than legitimate scientific research are prohibited. As Rinnuco is dumping 15,000kg of ferrous sulphate powder in a 2,000 km 2 area, this completely exceeds small scale scientific research. This large scale hazardous experiment, coupled with 63 Freestone, The Road to Rio: International Environmental Law after the Earth Summit 6, Journal of Environmental Law 193 at 221 (1994). 64 Franck, On Proportionality of Countermeasures in International Law, The American Journal of International Law 102 (4) 715 (2008). 65 Nuclear Test cases supra note 58. 14

the inadequate EIA, further display that Rinnuco has acted disproportionately and recklessly in carrying out this ocean fertilization experiment. Secondly, Rinnuco has already met its targets under the Kyoto Protocol. 66 This ocean fertilization experiment is therefore not necessary to comply with international treaties. Thus, it is probable that Rinnuco is undertaking this experiment mainly for commercial reasons, in order to increase fish production and to trade carbon offsets. 67 Commercial interests cannot prevail where a threat to biodiversity exists. 68 In the Haida Salmon Ocean Fertilization Project 69 the objective of the project was clearly commercial to stimulate the marine ecosystem in order to boost the salmon population and to sell carbon credits. This experiment was widely condemned for breaching international law for commercial gain. Here, Rinnuco are hiding behind the guise of climate change mitigation, despite the fact that they have already met their Kyoto Protocols obligations. Rinnuco cannot justify a large scale dangerous experiment for economic reasons and for potential climate change purposes. 66 Record Annex A [10] at 5. 67 Id. [12]. 68 As set out by the European Court of Justice in R v Secretary of State for the Environment (ex parte RSCB) Case C 44/95. 69 Information on the Haida Salmon Restoration project is available at www.haidasalmonrestoration.com. 15

C. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION IN THIS MATTER 1. The Court has jurisdiction under UNCLOS (a) Rinnuco s notice of revocation is invalid Both Aeolia and the Rinnuco are parties to UNCLOS and both submitted declarations pursuant to Article 287 of UNCLOS consenting to the jurisdiction of the Court in relation to disputes arising under the convention. Judge Benjaoul stated that any state is who consents to join the club, must abide by the rules governing the club s activities. 70 Article 288 of UNCLOS provides that a court or tribunal referred to in Article 287 shall have jurisdiction over any dispute concerning the interpretation or application of the convention. A declaration made under Article 287 remains in force three months after the notice of revocation has been deposited with the Secretary-General of the United Nations and a notice of revocation does not, in any way, affect proceedings pending before the Court having jurisdiction. Rinnuco has deposited the notice of revocation on 28 March 2016, only a few days before the proceedings in the Court have been instituted. Therefore, Rinnuco s declaration was still in force when the proceedings were instituted and Rinnuco must accept the jurisdiction of this Honorable Court on this basis. The revocation is not valid and the Court has jurisdiction to decide on this matter. It was stated by this Court in the Croatian Genocide case that, if at the date of the filing of an application 70 Case concerning fisheries jurisdiction (Spain v Canada) (Jurisdiction of the Court), Summaries of judgements, advisory opinions and orders of the International Court of Justice (1998), at 56, available online at: www.icj-cij.org/docket/files/96/7535.pdf. 16

all the conditions necessary for the Court to have jurisdiction were fulfilled, it would be unacceptable for that jurisdiction to cease to exist as the result of a subsequent event. 71 By revoking the UNCLOS declaration, Rinnuco attempted to deprive Aeolia of its rights and means of redress under UNCLOS. In Judge Benjaoul s opinion in the Spain v Canada case, Canada placed a reservation to a declaration of the Court s jurisdiction in order to protect itself in advance against any judicial proceedings. 72 Similarly, Rinnuco revoked its declaration in order to protect itself against a legal action in relation to its ocean fertilization experiment. Moreover, Rinnuco violated international law and provisions of UNCLOS when it deposited powdered ferrous sulphate into the Muktuk Ocean before the notice of revocation was filed. (b) Rinnuco has breached obligations under UNCLOS Rinnuco has breached UNCLOS, 73 including Article 192 of UNCLOS which provides a general obligation for states to protect and preserve the marine environment. This applies to areas within and beyond national jurisdiction (including the EEZ). The regime created by international treaties is governed by the principle of pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith. 74 Once a state commits itself to a regime for environmental protection, a violation of its commitment would result in an injury to the rights of another state and thus incur international 71 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports (2008) at 438. 72 Spain v Canada, supra note 70 at 56. 73 See Section A. 74 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331(1969), Art. 26. 17

responsibility. 75 Rinnuco has breached international environmental law and caused an injury to the rights of Aeolia. Therefore, this Honorable Court is the most appropriate organ to decide on Rinnuco s responsibility. (c) The Court has jurisdiction under UNCLOS in relation to breaches of other international treaties UNCLOS complements and reinforces other conventions containing specific provisions in relation to protection of marine biodiversity. 76 This is consistent with the terms of Article 311(2) and (5) of UNCLOS, and with Article 30(3) of the Vienna Convention on the Law of Treaties. 77 On this basis, in relation to specific breaches of CBD, CMS, London Convention and London Protocol, the method used to resolve this dispute should be provided under UNCLOS and this Honorable Court has jurisdiction in this matter. Bernard H. Oxman 78 states that the overarching power of UNCLOS results from the following elements: the unqualified obligation on states to take all measures consistent with UNCLOS to prevent, reduce and control pollution of the marine environment in Article 192; the incorporation of the obligations of more detailed global or generally accepted international rules by competent international organizations or diplomatic conferences; and the requirement 75 Owada, International Environmental Law and the International Court of Justice, Inaugural Lecture at the Fellowship Programme on International and Comparative Environmental Law, available online at http://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf. 76 Oxman, The Duty to Respect Generally Accepted International Standards, New York University Journal of International Law and Politics (1991), 109 159. 77 Southern Bluefin Tuna, supra note 61, at 40-41. 78 Oxman, supra note 76. 18

that national laws and regulations shall be no less effective than those of UNCLOS. 79 In the Southern Bluefin Tuna case, the ITLOS recognized that an antecedent implementing convention does not vacate the obligations imposed by the framework convention. Therefore, UNCLOS is viewed as a framework treaty extending beyond the reach of other treaties applicable in this case. 80 2. The Court has jurisdiction under the Convention on Biological Diversity (CBD) Article 27 of the CBD provides that, in the event of a dispute between contracting parties concerning the interpretation or application of the CBD, where the parties concerned cannot reach an agreement by negotiation or mediation, the parties have a choice of fora to resolve a dispute. Rinnuco has provided a written declaration submitting itself to the jurisdiction of the Court in respect of the CBD. 81 The failure by Rinnuco to comply with its declaration represents a clear attempt to renege on its obligations under the CBD, and moreover to deprive Aeolia of its rights and means of redress under this instrument. 3. The Court has jurisdiction under London Protocol and London Convention Rinnuco submitted a declaration under Article 16 of the London Protocol stating that when it is a party to a dispute in relation to the application and interpretation of Article 3.1 and 3.2 of London Protocol, its consent is required before the dispute may be settled by arbitral procedure. 79 UNCLOS, Arts. 207-212. 80 Southern Bluefish Tuna, supra note 61. 81 Records, Annex A,4. 19

As this matter falls within these Articles 82 and Rinnuco has not given consent, this Court is the proper forum to adjudicate in this matter. Rinnuco breached other Articles of the London Protocol including Article 4 83 and therefore this Honorable Court has jurisdiction to resolve a dispute in relation to London Protocol. As the London Protocol is consistent with the overarching aims to protect the marine life and biodiversity, it further implements UNCLOS 84. Subsequently, this Court is the most appropriate forum to rule on the breach by Rinnuco of these principles. D. RINNUCO CANNOT RELY ON THE DEFENCE OF MITIGATION OF CLIMATE CHANGE 1. The climate change treaties do not provide justification for carrying out ocean fertilization activities Both Rinnuco and Aeolia are parties to UNFCCC and Kyoto Protocol. The UNFCCC contains vague commitments regarding stabilisation of climate, and no commitment at all on reductions of greenhouse gases. 85 The UNFCCC places an obligation on its parties to promote and cooperate in the conservation and enhancement, as appropriate, of sinks, which are the mechanisms removing greenhouse 82 See Section A. 83 Id. 84 Verlaan, supra note 41, at 453. 85 BIRNIE, BOYLE AND REDGWELL, INTERNATIONAL LAW & THE ENVIRONMENT, (3RD EDN. OXFORD UNIVERSITY PRESS 2009), at 370. 20

gases from the atmosphere 86 and include biomass, forests and oceans. 87 This is as far as this general obligation goes, and does not justify ocean fertilization. 88 Although sinks include oceans under the UNFCCC, the Kyoto Protocol does not provide for ocean fertilization activities as means to protect sinks and climate change mitigating measures. 89 The Kyoto Protocol imposes obligations on states to reduce greenhouse gas emissions globally, and allows them to trade in carbon offsets. Ocean sink offsets are not permitted under the Kyoto Protocol. Moreover, carbon offsets under the Kyoto Protocol only relate to projects in another country s territory. 90 Since the seventh Conference of the Parties (COP7) to the UNFCCC in 2001, the only projects that have been considered in the category of sinks were related to the use of land and forests. Therefore, Rinnuco cannot rely on the UNFCCC and Kyoto Protocol as they do not permit ocean fertilization as the climate change mitigating method. Additionally, due to the precautionary principle and obligations stemming from UNCLOS, the CBD, the London Convention, and the London Protocol, the Kyoto obligations cannot be used as a justification of activities contrary to the international law of the sea. Therefore, the reduction of global warming cannot be pursued at the cost of or with risk to biodiversity. 91 86 United Nations Framework Convention on Climate Change 1771 UNTS 107; S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992) [UNFCCC] Art. 1(8). 87 UNFCCC, Art. 4(1)(d). 88 Freestone, Rayfuse, supra note 36 at 7. 89 Evans-Pritchard Jayanti, supra note 32, at 53. 90 SCHEIBER, PAIK, REGIONS, INSTITUTIONS, AND THE LAW OF THE SEA: STUDIES IN OCEAN GOVERNANCE (MARTINUS NIJHOFF PUBLISHERS 2013), at 193. 91 Marcinak, Nawożenie Oceanów Żelazem (Ocean Iron Fertilization), Prawo Morskie t. XXVII (2011), available online at https://ssrn.com/abstract=2400492 21