Post on 27-Apr-2018
IN THE ICJ AT THE PEACE PALACE
THE HAGUE, NETHERLANDS
CASE CONCERNING OCEAN FERTILIZATION
FEDERAL STATE OF AEOLIA
V
REPUBLIC OF RINNUCO
MEMORIAL FOR THE APPLICANT
2016 STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT
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Table of Contents
LIST OF ABBREVIATIONS AND ACRONYMS ...................................................................................... 3
INDEX OF AUTHORITIES ......................................................................................................................... 4
CASES ........................................................................................................................................................ 4
CONVENTIONS ...................................................................................................................................... 4
BOOKS ..................................................................................................................................................... 5
STATEMENT OF JURISDICTION ............................................................................................................. 6
QUESTIONS PRESENTED ......................................................................................................................... 7
STATEMENT OF FACTS ........................................................................................................................... 8
SUMMARY OF ARGUMENTS ................................................................................................................ 11
ARGUMENTS ............................................................................................................................................ 12
THAT THE COURT HAS JURISDICTION TO HEAR THE MATTER ............................................. 12
THAT RINNUCO IS IN VIOLATION OF INTERNATIONAL LAW................................................. 15
RINNUCO IS IN BREACH OF THE PRECAUTIONARY PRINCIPLE ......................................... 15
RINNUCO IS IN BREACH OF THE DUTY NOT TO CAUSE TRANSBOUNDARY HARM ..... 17
RINNUCO IS IN BREACH OF THE FOLLOWING TREATY PROVISIONS ............................... 19
CONCLUSION ........................................................................................................................................... 28
PRAYERS .................................................................................................................................................. 28
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LIST OF ABBREVIATIONS AND ACRONYMS
UNCLOS –UNITED NATIONS CONVENTION ON THE LAW OF THE SEA
CBD- CONVENTION ON BIOLOGICAL DIVERSITY
ICJ-INTERNATIONAL COURT OF JUSTICE
LC –LONDON CONVENTION
LP – LONDON PROTOCOL
UNFCCC – UNITED NATION FRAMEWORK CONVENTION ON CLIMATE CHANGE
CMS –CONVENTION ON CONSERVATION OF MIGRATORY SPECIES OF WILD
ANIMALS
INDC –INTENDED NATIONALLY DETERMINED CONTRIBUTION
EEZ- EXCLUSIVE ECONOMIC ZONE
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INDEX OF AUTHORITIES
CASES Corfu Channel Case ICJ Reports (1949) 18-22
Case Concerning Certain Phosphate Lands in Nauru
(Nauru v. Australia) [1992] ICJ Rep 240
Southern Bluefin Tuna Case29 ILM 1359(2000)
Lake Lanoux Arbitration (1957) ILR 101
Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 35)
Libya/Chad of 3 Feb. 1994 [1994] ICJ Rep 6
Nicaragua V United States ICJ Reports (1986)
Trail Smelter Case (1940) 3 RIAA 1905
CONVENTIONS
1996 Protocol To The Convention On Marine Pollution By Dumping Waste And Other
Matter ,Convention On Biological Diversity 1992
Convention On The Prevention Of Marine Pollution By Dumping Waste And Other
Matter 1996
Convention on The Conservation Of Migratory Species Of Wild Animals
Decisions Adopted By The Conference Of The Parties To The Convention On Bio Diversity At
Its Ninth Meeting
Doha Amendment To Kyoto Protocol United Nations Convention On The Law Of The Sea
1992
Kyoto Protocol (United Nations Framework Convention On Climate Change) 1997
London Protocol 1972
Paris Agreement 2015
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Rio Declaration 1992
Stockholm Declaration 1972
United Nations Framework Convention On Climate Change 1992
United Nations General Assembly Resolution
Vienna Convention 1969
BOOKS
Principles of international environmental law by Sands, Philippe
Kidd, M Environmental Law
Jane, H Environmental Protection Law and Policy 2nd Ed.
Birnie, PW International Law and the Environment (2002)
Sands, P International Law and the Environment (2002)
Birnie, P International law & the environment 3rd edition (2009)
Environmental law by Bell, Stuart
Environmental law by Thornton, Justine.
Elli Louka ,International Environmental Law (2006)
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STATEMENT OF JURISDICTION
The Federal States of Aeolia and Republic of Rinnuco , hereby submit the present dispute to the
International Court of Justice (“I.C.J.”) pursuant to Article 40(1) of the Court’s Statute, in
accordance with the Compromise for submission to the I.C.J. of the differences concerning the
Court’s Jurisdiction and Ocean Fertilization carried out by the State of Rinnuco.
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QUESTIONS PRESENTED
i) Whether the Court has jurisdiction to hear this matter in light of the various treaties
and conventions, entered into between the parties and the general rules of
international law.
ii) Whether, if the Court has Jurisdiction, the actions of the Republic of Rinnuco are in
violation of International Environmental Law.
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STATEMENT OF FACTS
Aeolia and Rinnuco are two neighboring, developed and highly industrialized states that share
the Muktuk Ocean which supports their fishing industries and Aeolia’s large ecotourism sector.
They have a similar marine biodiversity and Aeolia’s ecotourism sector thrives largely because
of the presence of Narwhales in Muktuk Ocean as whale watching is a huge tourism attraction
for tourists to Aeolia. Aeolia has also set up a research facility called Nauritus Research Institute
that particularly studies narwhales.
On 21st November 2014, after conducting an extensive environmental impact assessment, the
Government of Rinnuco announced its plans to engage in an ocean fertilization project that it
hoped would stimulate the growth of phytoplankton blooms in the Muktuk Ocean.
Rinnuco’s stated purposes for the project was to (1) conduct rigorous scientific research on the
short- and long-term benefits of ocean fertilization; (2) mitigate climate change; (3) generate
potential carbon offsets that Rinnuco might use to meet emission reduction targets or
commitments; and (4) stimulate fish production
Rinnuco notified Aeolia about the planned ocean fertilization project, and on 2nd December
2014 Aeolia sent a diplomatic note raising concern over the project stating that: the effects of
ocean fertilization, particularly ocean fertilization of this scale, are largely unknown, and this
project could be disastrous for the marine environment in and around the Muktuk Ocean, that a
proliferation of phytoplankton could disrupt predator-prey relationships and affect numerous
species of fauna and flora. In particular, Aeolia and its citizens are concerned about the potential
effects of Rinnuco’s ocean fertilization project on the narwhals and other cetaceans and fish in
the Muktuk Ocean and that the project could adversely impact the economies of both Rinnuco
and Aeolia. Aeolia urged Rinnuco to act in accordance with the precautionary principle and
abandon this planned ocean fertilization project.
On 5th December 2014 the government responded to this through a diplomatic note stating that it
appreciates the concerns of the Government of Aeolia, but Rinnuco will proceed with its ocean
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fertilization project as planned because it had conducted an extensive environmental impact
assessment before planning this project. And further stated that the ocean fertilization project
has many possible benefits, including, inter alia, carbon sequestration, which could benefit the
marine environment and biodiversity by mitigating the effects of climate change.
On 15th December 2014, the Rinnuco legislature passed a law approving and fully funding the
planned ocean fertilization project that would occur in phases, each later phase being larger than
the previous one.
Despite Aeolia’s persistent pleas that Rinnuco reconsiders the project on 5 January 2015, one of
Rinnuco’s government research vessels, the Stanlee began depositing powdered ferrous sulfate
approximately 175 miles off the coast of Rinnuco.
On 6th January 2015, the Government of Aeolia sent a diplomatic note to the Government of
Rinnuco urging them to reconsider the project as it may have a negative impact on Muktuk
Ocean which is a shared resource. It further asserted that Rinnuco was in violation of
International Law and that they should meet and discuss the matter and hopefully get other
possible options.
On 22nd January 2015, the Government of Rinnuco sent a diplomatic note to the Government of
Aeolia stating that it had not violated any international law, but in the spirit of cooperation it
would temporarily suspend its ocean fertilization project once the initial phase was complete
and would continue to engage in diplomatic discussions with Aeolia, but may resume the project
at their discretion.
On 13th February 2015 ,the government of Rinnuco temporarily suspended its ocean
fertilization project after the Stanlee had completed the initial phase and deposited all of
the planned 15,000kg of ferrous sulfate . However ,Rinnuco was not able to make any
final determinations about the results from the project and said that it would continue
with the process of collecting and analyzing data from initial phase of the project.
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On 22 April 2015, nine dead narwhals were found off the coast of Rinnuco. Researchers from
Aeolia’s Nautilus Research Institute conducted necropsies, but the results were inconclusive as
to what caused the narwhals to die.
On 4 May 2015, the Government of Aeolia sent a diplomatic note to the Government of Rinnuco
that stated in part that the unfortunate recent deaths of the nine narwhals further emphasize the
importance of Rinnuco abandoning its ocean fertilization project.
On 18 May 2015, the Government of Rinnuco sent a diplomatic note to the Government of
Aeolia that stated in part that while the deaths of the nine narwhals were certainly unfortunate,
there was nothing to suggest that these deaths were in any way related to Rinnuco’s ocean
fertilization project and that Rinnuco planned on resuming on 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 and in March 2016,
Aeolia requested that Rinnuco agree to submit the matter to the ICJ in accordance with Article
287 of UNCLOS, but Rinnuco refused.
Aeolia submitted an Application instituting proceedings against the Republic of Rinnuco, dated 4
April 2016 (Annex B), and Rinnuco submitted a Preliminary Objection, dated 10 May 2016,
contesting the ICJ’s jurisdiction over the matter
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SUMMARY OF ARGUMENTS
1. The Court has jurisdiction over this dispute in accordance with Article 27 of the CBD, as well
as Article 287 of UNCLOS. The dispute arises directly under the CBD and UNCLOS since
several CBD Decisions relate directly to ocean fertilization, and UNCLOS explicitly addresses
ocean dumping and the conservation of the marine environment.
2.Secondly, that Rinnuco’s ocean fertilization project in the Muktuk Ocean is in breach of its
obligations under international law, including, but not limited to, violations of several
multilateral environmental agreements such as the 1996 Protocol to the Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (London
Protocol), the Convention on Biological Diversity (CBD), the United Nations Convention on the
Law of the Sea (UNCLOS), and the Convention on Migratory Species of Wild Animals (CMS).
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ARGUMENTS
THAT THE COURT HAS JURISDICTION TO HEAR THE MATTER
The court herein has Jurisdiction to hear the matter which it derives from the following;
Article 36(1) of the Statute of the ICJ which states that “The jurisdiction of the Court
comprises all cases which the parties refer to it and all matters specially provided for in
the Charter of the United Nations”
1. The parties have referred to the ICJ as a recourse for dispute resolution under: Article
27 of the 1992 Convention on Biodiversity hereafter referred to as the CBD which
provides that “In the event of a dispute between Contracting Parties concerning the
interpretation or application of this Convention, the parties concerned shall seek
solution by negotiation… If the parties concerned cannot reach agreement by
negotiation, they may jointly seek the good offices of, or request mediation by, a third
party…a dispute not resolved in accordance with paragraph 1or paragraph 2 above, it
accepts one or both of the following means of dispute settlement as
compu1sory…Arbitration..” or “..Submission of the dispute to the International Court
of Justice.”
When Aeolia and Rinnuco ratified the CBD ,both countries declared in writing
that they would submit to the jurisdiction of the ICJ to resolve disputes
concerning the interpretation or application of the CBD. It is therefore
undisputable about the jurisdiction of ICJ in this matter. This position can be
supported by the Land, Island, and Maritime Frontier Dispute (El
Salvador/Honduras; Nicaragua Intervening)1 case where the court herein derived its
jurisdictional basis from a special agreement entered into by Honduras and El
Salvador in 1986. The written declarations by both Aeolia and Rinnuco herein also
serves as a special agreement from which the court should derive jurisdiction.
1 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 351; Schulte, supra note 15, at 214–215.
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2. The parties have also referred to the ICJ under Article 287 of the UNCLOS which
provides that the ICJ has jurisdiction over disputes concerning interpretation or
application of the convention. Both states are parties to this convention and
when signing and ratifying UNCLOS both made a written declaration pursuant
to article 287 paragraph 1(b) choosing the ICJ to handle the case. Article 287
of the UNCLOS provides that “When signing, ratifying or acceding to this
Convention or at any time thereafter, a State shall be free to choose, by
means of a written declaration, one or more of the following means for the
settlement of disputes concerning the interpretation or application of this
Convention.” Section 1b of the same provides the The international court of justice
as a possible avenue to solve the dispute and pursuant to their written declarations
to submit the case to the ICJ to handle the dispute the parties have thereby
accepted the Court’s Jurisdiction to hear this matter. In the matter above which
regards Narwhales which are part of the biological diversity of the Muktuk Ocean the
parties have already exploited the avenues of negotiation and mediation
unsuccessfully hence it is now permissible for them to seek to solve the dispute in the
ICJ.
However, as the case stands Rinnuco submitted a notice of revocation on 28th
March 2016 to the secretary general , pursuant to Article 287 paragraph 6
which makes provision on revocation and provides that “ a declaration made
under paragraph 1 shall remain in force until three months after notice of
revocation has been deposited with the Secretary-General of the United
Nations.’’ The application instituting proceedings was made on 4th April 2016,
it is therefore evident that three months have not yet lapsed and their written
declarations thereby still have effect and grant the ICJ jurisdiction to hear this
dispute.
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3. That the Court also derives Jurisdiction from Article 14(2) of the 1992 Climate
Convention to which both Aeolia and Rinnuco are parties to which provides that “…a
party……..may declare in a written instrument submitted to the depository that in
respect of any dispute concerning the interpretation or application of the convention,
it recognizes the court’s jurisdiction as compulsory ipso facto and without special
agreement in relation to any party accepting the same obligation. (A) Submission of
the dispute to the International Court of Justice…” Both Aeolia and Rinnuco herein
submitted the declarations providing that under this article they recognize the
jurisdiction of the ICJ as compulsory as regards to any dispute between them as under
the ambit of this convention. The dispute regards the application of principle 3 under
Article 3 of this convention which is the precautionary principle and therefore this
matter falls under the ambit of this convention and the ICJ has the Jurisdiction to
entertain it
To support this argument is the case of Libya V Chad 2 where both parties had signed
a framework agreement on the peaceful settlement of the territorial dispute. The
parties undertook to submit the dispute to the ICJ in the absence of political
settlement within a period of approximately one year and on that basis, the ICJ drew
Jurisdiction. Similarly in the present case the ICJ can draw its jurisdiction from the
undertaking of the parties to submit any dispute under the UNFCCC to the ICJ
4. Further the Court’s Jurisdiction is affirmed by the Kyoto Protocol to which both
states are members which provides that the dispute resolution mechanism provided
under Article 14 of the UNFCC shall. apply mutatis mutandis which means that
pursuant to the parties written declaration under the UNFCC regarding jurisdiction
the court herein has jurisdiction over the matter.
2 Libya/Chad of 3 Feb. 1994 [1994] ICJ Rep 6 at paras 17, 19–21.
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THAT RINNUCO IS IN VIOLATION OF INTERNATIONAL LAW
RINNUCO IS IN BREACH OF THE PRECAUTIONARY PRINCIPLE
5. That Rinnuco is in breach of the Precautionary principle which is a general principle
of international law. The principle is defined under the Principle 15 of the Rio
Declaration which then provides that where there threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason of postponing
cost-effective measures to prevent environmental degradation.
Further, Article 3(3) of the 1992 United Nations Framework convention on
Climate Change provides that “3….parties are to take precautionary measures to,
inter alia, mitigate the adverse effects of climate change, and lack of scientific
certainty should not be used as a reason for postponing such measures.
Rinnuco by failing to stop the ocean fertilization project on account of there being no
scientific certainty as to it having caused the death of the 9 Narwhales, is in violation
of this principle. The position of this principle in International Law was reasserted by
the International Tribunal on the Law of the Sea in the 2001 MOX case4between
Ireland and the United Kingdom at Par 34 of the Judgment in which the Judges stated
that “… the precautionary principle is a rule of customary international law which is
binding to the United Kingdom and relevant to the assessment of the United
Kingdom’s actions by reference to [UNCLOS]…”
Further the Corfu Channel Case5suggests that it also arises when there is a known
risk to other states. In general, however, foreseeability of harm, in the sense of an
objectively determined risk, will usually be sufficient to engage the state’s duty of
regulation and control. Therefore the risk to Aeolia is an objectively determined risk
since ocean water is not static and it flows in between the territories of Aeolia and
Rinnuco and Aeolia’s apprehension is warranted because the ferrous sulphate from
Rinnuco’s ocean fertilization project is bound to flow into Aeolia’s territory and
affect its sea creatures including the Narwhales.
3www.int-res.com/articles/theme/m364p227.pdf ( pg. 230) ( accessed on 11/11/2016) 4 Order of 3 December 2001 5 ICJ Reports (1949) 18-22
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Further the International Tribunal of the Law of the Sea in the Southern Bluefin
Tuna Case6 supported the precautionary approach by stating that the fact that one
couldn’t conclusively assess scientific evidence regarding provisional measures
sought by New Zealand did not oust the fact that action should be taken as a
measure of urgency to avert further deterioration of the Tuna Stock. Likewise
herein the Rinnuco is in breach of this principle by not taking action to stop its
Ocean Fertilization project which might cause a deterioration of the state of
cetaceans in Muktuk Ocean.
6. That Rinnuco is in violation of its obligations under Article 3 of The 1996 Protocol
To The Convention On The Prevention Of Marine Pollution By Dumping Of
Wastes And Other Matter which states that “….Contracting Parties shall apply a
precautionary approach to environmental protection from dumping of wastes or other
matter whereby appropriate preventative measures are taken when there is 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 a causal relation
between inputs and their effects.” By putting the ferrous Sulphate in Muktuk Ocean,
Rinnuco is in breach of this provision because the ferrous sulphate contains iron
which may affect the food web by causing a change in the make-up of the cetaceans
in the two lowest levels of the food chain which stimulates them into a race to
capitalize on the resources of sunlight and nutrients which in turn creates a scenario
where other factors such as nutrient levels and preexisting populations of planktons
could cause the number of these organisms terribly which causes a subsequent
negative effect on the secondary and tertiary members of the chain by reducing their
food supply and ipso facto their number.
Further Rinnuco is in breach of its obligation under Article 3(1) of the Protocol which
provides that the application of a precautionary approach to environmental protection
is included as a general obligation.
6 29 ILM 1359(2000)
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RINNUCO IS IN BREACH OF THE DUTY NOT TO CAUSE TRANSBOUNDARY
HARM
7. That Rinnuco is in breach of the duty not to cause transboundary harm which forms
part of International Customary Law together with the principle of sic utere tuo, ut
alienum non laedas(principles of good neighborliness).Rinnuco by conducting the
Ocean Fertilization Project which involves the depositing of ferrous sulphate amongst
other harmful substances to Muktuk Ocean is in breach of this principle because
Muktuk Ocean is a shared resource and the substances are likely to flow to Aeolia’s
part of the Ocean and harm their marine animals including the Narwhales, 9 of which
have already died in a manner that suggests the Ocean Fertilization as a probable
cause of their death. This will cause harm not only to Aeolia’s Biodiversity but also
to its economy as it is highly reliant on ecotourism which arises from the presence of
Narwhales in its territorial waters. These impacts are not confined to any one national
jurisdiction, such that activities occurring in one jurisdiction can result in impacts in
another, or impacts in one jurisdiction can be transported to another. 7
8. This Principle was reasserted in the Trail Smelter Case8 where the tribunal held that
“Under the principles of International Law… no state has the right to use or permit
the use of territory in such a manner as to cause injury by fumes in or to the territory
of another or the properties or persons therein, when the case is of serious
consequence…”
And although this passage relates specifically to atmospheric emissions, it is clear
that it may be applied equally to other forms of pulling activity.
Thus in the present context a state may well be under an obligation arising from
customary law to ensure that its activities are not such as will cause water pollution to
adversely affect another state.9
7 www.law.mq.edu.au/public/download.jsp?id=170874 (pg. 42)(accessed on 11 /11/2016) 8 (1940) 3 RIAA 1905 9 Lake Lanoux Arbitration (1957) ILR 101
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This was further re-asserted by the ICJ in its Advisory Opinion on the Legality of the
Threat of Nuclear Weapons 10where it stated that “The existence of the general
obligation of states to ensure that activities within their jurisdiction and control
respect the environment of other states or of areas beyond national control is now part
of the corpus of international law relating to then environment.”11
Further as indicated by the court in Nicaragua V United States (Merits), customary
international law continues to exist and apply even where it is identical in content to
international treaty law which therefore means that the presence of treaty law on this
matter does not prejudice the application of customary international law and vice
versa.
Further ,provided under principle 2 of Rio declaration as an articulation of
principle 21 Stockholm it reaffirms sovereignty of states over their natural
resources .Its repeated in the principle that states have the responsibility to
ensure that activities within their jurisdiction and control do not cause damage
to the environment of other states or of areas beyond limits of national
jurisdiction12.13The obligation to prevent transboundary harm requires the state to
exercise due diligence.14
9 .That Rinnuco is in breach of the Precautionary principle under Article
10(6) of the 2000 Cartagena Protocol on Biosafety which was/is premised
on the 1992 Convention on Biodiversity which provides that “ In accordance
with the precautionary approach contained in Principle 15 of the Rio
10Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 22, [29]; Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (Judgement), [1997] ICJ Rep 7, [53]; Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgement), [2010] ICJ Rep 14, [193]; as cited in CBD Technical Series No. 66, above n 3, 115. 11 ICJ Reports (1996) 226, para 29 [ ‘Nuclear Weapons AO’] 12 Rio Declaration on Environment and Development, UN Doc A/CONF151/26 (vol. I) (14 June 1992) annex I (‘Rio Declaration’), principle 2; Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993), art 3 (‘CBD’) 13 www.law.mq.edu.au/public/download.jsp?id=170874(accessed on 11/11/2016) pg. 46 ,47 14 International Law Commission, ‘Draft articles on prevention of transboundary harm from hazardous activities’, UN Doc. A/56/10, [98], Article 3 [8]. For a good overview of the requirements for attributing responsibility for transboundary harm, see CBD Technical Series No. 66, above n 3, 114-5.
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Declaration on Environment and Development, the objective of this protocol
is to contribute to ensuring an adequate level of protection in the field of the
safe transfer and use of biological diversity, taking also into account risks to
human health, and specifically focusing on Transboundary movements.’’
And thus the protocol advises safe transfer of LMOs so as not to cause
Transboundary harm to other states with due consideration to be given to the
Precautionary Approach, Rinnucco has not acted in line with this principle as
although not conclusive there is a scientific likelihood that their actions with
regard to the deliberate dumping of hazardous ferrous sulphate into the
Muktuk Ocean did cause the death of Narwhales and there is nothing
stopping the hazardous material from flowing to Aeolia’s side and harming
cetaceans on their part of Muktuk Ocean.
RINNUCO IS IN BREACH OF THE FOLLOWING TREATY PROVISIONS
Article 26 of the Vienna convention enunciates on the principle of pacta sunt
servanda that every treaty in force is binding upon the parties to it and must be performed by
them in good faith. This implies that since Rinnuco is party to various conventions it was
obliged to perform them in good faith.
1. The basic legal framework for the protection and preservation of marine
environment is set out under the UNCLOS , which gives content to the customary
international law obligation binding on all state . To that end, all states are obliged to
take individually and jointly all measures necessary to prevent, reduce and control
pollution of the marine environment, this is envisaged in the articles discussed below.
2. Rinnucos stated that the purpose of the ocean fertilization project was to
conduct scientific research , however, Article 87(f) 15 UNCLOS provides that
marine scientific research has the status of a ‘freedom of the high seas’ and needs to
be conducted with appropriate methods and means compatible with the Convention.
15 www.law.mq.edu.au/public/download.jsp?id=170874 (Accessed on 11/11/2016) pg. 60
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However ,Rinnuco conducted its ocean fertilization project contrary to the
provisions of this act as it was the probable cause of death of the narwhals .
9. That Rinnuco is in breach of Article 192 of the United Nations Convention on the
Law of the Sea herein thereafter referred to as the UNCLOS which provides that
states have the obligation to protect and preserve marine environment.
Rinnucos oceanic fertilization is therefore in contravention of this provision as
it was the possible cause of death of Narwhals which constitute the marine
environment . And that after the death of the narwhals it (Rinnuco) should have
taken measures to prevent greater harm to the marine environment. Instead
Runnico declined to take any measures and even said that it would proceed
with its project regardless.
10. That Rinnuco is in breach of Article 194 (1) of the UNCLOS16 which provides that
“” States shall take, individually or jointly as appropriate, all measures
consistent with this Convention that are necessary to prevent, reduce and
control pollution of the marine environment from any source, using for this
purpose the best practicable means at their disposal and in accordance with
their capabilities, and they shall endeavor to harmonize their policies in this
connection.” Pollution is defined under Article 1(4) as ‘the introduction by man,
directly or indirectly, of substances or energy into the marine environment, including
estuaries, which results or is likely to result in such deleterious effects as harm to
living resources and marine life, hazards to human health, hindrance to marine
activities, including fishing and other legitimate uses of the seas, impairment of
quality for use of sea water and reduction of amenities .In light of this provisions
Rinnucos ocean fertilization project is therefore a form of pollution and thus a
contravention of article 194 . Rinnuco has violated this provision through its
response dated dated 5th December in which it stated that it would continue with the
project despite the concerns that Aeolia had raised with regards to the project thus
failing to play its part in preventing, reducing or otherwise controlling the pollution
16 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 ILM (1982), (entered into force 16 November 1994)
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that was ongoing in Muktuk Ocean by its ocean fertilization project which involved
the deliberate dumping of Ferrous Sulphate into the Ocean surface.
11. That Rinnuco is in breach of Article 194(2) of the UNCLOS which provides that
“States shall take all measures necessary to ensure that activities under their
jurisdiction or control are so conducted as not to cause damage by pollution to other
States and their environment, and that pollution arising from incidents or activities
under their jurisdiction or control does not spread beyond the areas where they
exercise sovereign rights in accordance with this Convention.”
17Ocean fertilization has the potential to have widespread, long-lasting, and
severe impacts on the marine environment, with implications for human health.18 The
risks include changes in biological diversity and possible damage to marine
ecosystems; changes in dominant phytoplankton species; eutrophication (i.e. growth
of unexpected and potentially harmful algal blooms); the creation of anoxic areas, or
dead zones, in the ocean; the formation of toxic materials; decreasing fish stocks due
to nutrient depletion; and the creation and release of greenhouse gases such as nitrous
oxide.19 This implies that ocean fertilization may have adverse effects than
advantages and therefore calling for Rinnuco to abandon it as requested by
Aeolia through a letter dated 2nd December 2014. Rinnucos failure to abandon
the project ,is therefore in contravention of the provisions of this article to take
measure to ensure activities within their jurisdiction don’t cause damage to
other states and their environment. Rinnucos ocean fertilization project was the
most probable cause of Narwhals death which form part of Aeolia’s ecotourism
.
17www.law.mq.edu.au/public/download.jsp?id=170874i (accessed on 11/11/2016) pg. 42
18 International Maritime Organization, ‘International concerns over ocean fertilization receives
unanimous backing from key meeting in London’ (Press Release, 20 November 2012)
<http://www.imo.org/blast/blastData.asp?doc_id=14525&filename=J-14%20Rev.doc>.
19 See variously Mayo-Ramsey, above n 12, 832; Gi-Hoon Hong, ‘Ocean Fertilization’ (Speech delivered
at IMO/HELCOM Regional Workshop for the Promotion of the London Protocol and the Helsinki
Convention, 68 April 2011) < www.imo.org/blast/blastData.asp?doc_id=14055 >; Christine Bertram,
‘Ocean Iron Fertilization in the Context of the Kyoto Protocol and the Post-Kyoto Process’ (Working
Paper No 1523, Kiel Institute for the World Economy, June 2009) 10.
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This is also in line with each state’s duty not to cause Transboundary Harm to
another state. Based on the fact that the Muktuk ocean is a shared resource this
means that the substances deposited by Aeolia in pursuance to its Ocean Fertilization
Project spread over to the geographical boundaries of Aeolia and hence
violating this provision by causing numerous effects to both sides of the ocean
and a possible net negative effect to Aeolia’s economy as the death of narwhales
would harm it’s strong ecotourism sector.
12. That Rinnuco is in violation of Article 207 of the UNCLOS which provides that
states have the obligation “to minimize to the fullest extent possible, the release of
toxic, harmful or noxious substances, especially those which are persistent, into the
marine environment.” The release of Ferrous Sulphate with the intent of enhancing
the Ocean Fertilization Project qualifies as a harmful substance as per the wording of
the above article since it is harmful to Narwhales which are part of marine life.
13. That Rinnuco is in violation of Article 210 (1) provides that States shall adopt laws
and regulations to prevent, reduce and control pollution of the marine environment by
dumping. Dumping is defined under Article 1(5) as ‘any deliberate disposal of wastes
or other matter from vessels, aircraft, platforms or other manmade structures at sea’.
Rinnucos ocean fertilization project therefore falls under the definition of
dumping and is therefore a violation of international laws.
14. That Rinnuco is in breach of Article 210(2) of the UNCLOS which provides that
states shall take other measures other than adopting legislations, as may be
necessary to prevent ,reduce and control such pollution .This requires states to
adopt national laws to prevent and regulate dumping that must be no less
effective than internationally agreed global rules and standards .These rules and
standards are currently found in the LC20 (to which Rinnuco is party ) and the
London Protocol21. Rinnucco is therefore under an international obligation to
20 London convention on the prevention of marine pollution by dumping wastes and other matter. 21 London convention on the prevention of marine pollution by dumping wastes and other matter
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take all measures to conserve the marine environment and its internal actions of
continuing with the Ocean Fertilization project clearly show that it has violated these
provisions.
15. That Rinnuco is in violation of Article 210 (6) of the UNCLOS which provides that
“Dumping within the territorial sea and the exclusive economic zone or onto the
continental shelf shall not be carried out without the express prior approval of the
coastal State, which has the right to permit, regulate and control such dumping after
due consideration of the matter with other States which by reason of their
geographical situation may be adversely affected thereby.” On 5th December
Rinnuco stated that it would proceed with the fertilization project despite
Aeolia’s disapproval. Rinnuco has therefore violated its international obligations
by conducting dumping of oceanic fertilizer without Aeolia’s approval.
16. That Rinnuco, through conducting the ocean fertilization project and dumping ferrous
sulphate which is harmful to cetaceans into Muktuk Ocean is in breach of Article II of
the Convention on the Conservation of Migratory Species which provides that parties
to the convention should take action while paying attention to migratory species
whose conservation status is unfavorable. Narwhales are listed under appendix II of
the Convention as a type of migratory species and the Ocean Fertilization project by
Rinnuco does not pay attention to them as it makes use of substances such as ferrous
sulphate which are likely to harm the narwhales
.
17. That Rinnuco is in breach of Article 235(1) UNCLOS ,which affirms that
states are responsible for the fulfilment of their international obligations
concerning the protection and preservation of the marine environment .The
article goes on to say that they shall be liable in accordance with international
law.
18. That Rinnuco is in breach of Article 238 of the UNCLOS which provides that all
states have a right to conduct marine scientific research irrespective of their
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geographical location subject to the rights and duties of other states as
provided for under the convention .However , from the facts of the case
Rinnuco did not consider the rights of Aeolia as a neighboring state sharing
the same ocean and is therefore in contravention of this article.
19. That Rinnuco is in breach of the 1971 London Dumping Convention in article IV
which provides that dumping of highly hazardous wastes is prohibited except in
emergency situations and after consultations with countries likely to be affected and
with the IMO by using ferrous sulphate which is a hazardous substance. Further
Article III of the same Convention provides the definition of dumping as “… any
deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms, or
other man made creatures at sea…” Runnico using the Vessel called Stanlee
deliberately disposed of Ferrous Sulphate amongst other hazardous material at sea
thereby endangering the cetaceans in Muktuk Ocean.
20. Rinnuco is in violation of Article 3 of the Convention on Biological Diversity
which states that States “in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that
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.” Rinnuco is in
breach of this provision because it is conducting an ocean fertilization project that is
likely to injure the narwhales on the Aeolian side of the Muktuk Ocean. This ground
is in furtherance of the court’s affirmation of the principle of general international law
that a state which is responsible for the administration of territory is under an
obligation not to bring about changes in the condition of the territory which will cause
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irreparable damage to or substantially prejudice the existing legal interest of another
state in the Case Concerning Phosphate Land In Nauru (Nauru V Australia)22.
Rinnuco is also in violation of Article 8 of the CBD which provides for In situ
conservation giving states an obligation to promote the protection of ecosystems,
natural habitats and the maintenance of viable populations of species in natural
surroundings: Rinnuco’s ocean fertilization project is instead doing the opposite by
harming the cetaceans in Muktuk Ocean through their Ocean Fertilization Project that
involves the depositing of hazardous ferrous sulphate into the ocean. In addition,
Rinnuco is in violation of its obligatory duty under section (h) of the above article to
prevent the introduction of, control or eradicate those alien species which threaten
ecosystems, habitats or species: Herein the ferrous sulphate used during the ocean
fertilization is threatening the cetacean species present in Muktuk Ocean.
Rinnuco is also in violation Article 4(d) of the CBD which provides that “In the case
of imminent or grave danger or damage, originating under its jurisdiction or control,
to biological diversity within the area under jurisdiction of other States or in areas
beyond the limits of national jurisdiction, notify immediately the potentially affected
this States of such danger or damage, as well as initiate action to prevent or minimize
such danger or damage.” This is because its Ocean Fertilization Project is posing an
imminent danger to the cetaceans in Muktuk Ocean and will potentially affect
Aeolia’s cetaceans as well but Rinnuco is not taking any action to minimize the
danger or possible damage.
That further Rinnuco is breach of Decision IX/16 of the which provides that
“...Parties and urges other Governments, to ensure, in
accordance with the precautionary approach, that ocean fertilization activities do not
take place until there is an adequate scientific basis on which to justify such
activities”23 There is no adequate scientific evidence that cogently supports the
benefits of Ocean Fertilization as Rinnuco alleges.
22 (Nauru v. Australia) [1992] ICJ Rep 240 23 Conference of the Parties, Convention on Biological Diversity, Report of the Conference of the Parties to the
Convention on Biological Diversity on the Work of its Ninth Meeting, Held in Bonn from 19 to 30 May 2008,
UNEP/CDB/COP/9/29* (9 October 2008) annex (‘Decisions Adopted by the Conference of the Parties to the
Convention on Biological Diversity at its Ninth Meeting’) decision Decision IX/16, Section C Ocean
Fertilisation see also Decisions Adopted by the Conference of the Parties to the Convention on Biological
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Further Rinnuco is in breach of Decision XI/20 which emphasized that climate
change should primarily be addressed by reducing anthropogenic emissions by
sources and by increasing removals by sinks under the UNFCCC but not through geo-
engineering techniques such as Ocean Fertilization “until there is
an adequate scientific basis on which to justify such activities”24,
21. That Rinnuco is in violation of Principle 8 of the 1972 Stockholm Declaration by
continuing with the ocean fertilization project despite Aeolia’s persistent objections.
Principle 8 states that states should “take all possible steps to prevent pollution of the
seas by substances that are liable to create hazards to human health, to harm living
resources and marine life, to damage amenities or to interfere with other legitimate
uses of the sea.” The Ocean fertilization project involves the use of ferrous sulphate
which is likely to cause to the Marine life in Muktuk Ocean.
22. Article 204 (1)UNCLOS provides that states are required to conduct
environmental assessment test for activities likely to cause harm on the marine
environment. As in line with the provisions of principle 7 Rio declaration ,to
apply environmental impact assessment test for activities likely to have adverse
effects.
That Rinnuco is in violation of paragraph 4 of resolution LC-LP.1 (2008), which
provides that scientific research proposals should be assessed on a case-by-case basis
using the Assessment Framework “to determine, with utmost caution, whether a
proposed activity constitutes legitimate scientific research that is not contrary to the
aims of the Convention or Protocol .Rinnuco did not comply with this provision.
That Rinnuco is in violation of Resolution LC-LP.2 (2010) 25of the London Protocol
as its environmental impact assessment was not in line with the guidelines given
under the above protocol as they have accepted in their diplomatic note dated 22nd
Diversity at its Tenth Meeting’ UN Doc UNEP/CDB/COP/10/27, 24 Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth
Meeting’ UN Doc UNEP/CDB/COP/10/27 25 On the Assessment Framework for Scientific Research Involving Ocean Fertilisation, Resolution LC-LP 2 (2010) (the thirty-second consultative meeting of the contracting parties to the London Convention and the fifth meeting of the contracting parties to the London Protocol)
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January 2015. In as much as resolutions may not be binding they do give rise to
estoppel and in this case Rinnuco is stopped from denying that they had agreed to a
specific manner in which environmental impact assessments are conducted, which
they have subsequently violated.
23. Rinnucos ocean fertilization project is in violation of the 26UNFCCC which
imposes an obligation on its parties to ‘promote and cooperate in the conservation and
enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases …
including biomass, forests and oceans’ (Article 4[1][d]. Rinnucos ocean fertilization
project does not promote the conservation and enhancement of oceans , since it
was the most probable cause of death of the narwhals .
24. Rinnuco claims under a diplomatic note dated 18th May 2015 that their ocean
fertilization project is in fulfilment of its obligation under INDC in anticipation
of the Paris climate change conference .However ,Rinnuco has signed but not
ratified the Paris agreement . Article 14 of the Vienna convention provides that
consent to be bound by a treaty is expressed by ratification , acceptance or
approval. Rinnuco cannot claim therefore to be acting on the basis of provisions
of a treaty which they have not ratified ,since they are not binding on them .
26 www.int-res.com/articles/theme/m364p227.pdf (accessed on 11/11/2016) pg. 230
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CONCLUSION
PRAYERS
The Federal States of Aeolia seeks an order from the ICJ declaring that
(1) That the ICJ has jurisdiction to determine the matter;
(2) That the Republic of Rinnuco violated international law by conducting the initial phase of its
ocean fertilization project in the Muktuk Ocean and that any re-initiation of this project would
violate international law.
Respectfully submitted
XX
Representatives from the Federal State of Aeolia