IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

QUESTIONS RELATING TO OCEAN FERTILIZATION AND MARINE BIODIVERSITY

THE FEDERAL STATES OF AEOLIA

(APPLICANT)

V.

THE REPUBLIC OF RINNUCO

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

2016

TC-

ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................ iv

STATEMENT OF JURISDICTION .................................................................................... xi

QUESTIONS PRESENTED ............................................................................................... xii

STATEMENT OF FACTS ................................................................................................ xiii

SUMMARY OF ARGUMENTS ........................................................................................ xv

ARGUMENTS ...................................................................................................................... 1

I. The International Court Of Justice Has Jurisdiction Over The Present Dispute. ............... 1

A. The Court has jurisdiction under the CBD and the UNCLOS. ...................................... 1

i) The Court has jurisdiction in accordance with Article 27 of the CBD. ............................. 2

ii) The Court has jurisdiction under Article 287 of the UNCLOS. ......................................... 3

B. Even if the London Protocol is Applicable, the ICJ has Jurisdiction as it is the Most

Competent Forum to Deal with All Aspects of the Present Claim. ........................................... 9

II. Rinnuco Has Violated International Law Through Its Ocean Fertilization Project. ........ 11

A. Rinnuco has violated its obligations under the London Protocol. ............................... 11

i) Rinnuco’s project constitutes dumping. ........................................................................... 11

ii) Rinnuco has violated its obligation to apply a precautionary approach. .......................... 13

iii) Rinnuco violated its obligation to not transform one form of pollution into another. ..... 15

B. Rinnuco has violated its obligations under the UNCLOS. .......................................... 15

i) Rinnuco has violated its duty to protect and preserve the marine environment. .............. 16

ii) Rinnuco has violated its duty to not cause transboundary harm. ..................................... 19

iii) The right to conduct marine scientific research does not authorize Rinnuco’s project. .. 22

iii

C. Rinnuco has violated its obligations under the CBD. .................................................. 23

D. Rinnuco has violated its obligations under the CMS. .................................................. 24

CONCLUSION AND PRAYER ......................................................................................... 27

iv

INDEX OF AUTHORITIES

TREATIES & CONVENTIONS

1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matter, Nov. 7, 1996, 36 I.L.M. 1 .............................................. 1, 5, 7, 10, 11, 12, 13

Bulgaro-Belgian Treaty of Conciliation, Arbitration and Judicial Settlement, June 23, 1931, 137

L.N.T.S. 191................................................................................................................................ 8

Convention on Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79 ............................. 1, 2, 3, 22

Convention on the Conservation of Migratory Species of Wild Animals, June 6, 1979, 1651

U.N.T.S. 333 ................................................................................................................. 10, 23, 24

Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874 .................... 13

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 ......................

........................................................................................................................... 1, 4, 8, 10, 17, 21

Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331 .............. 10, 11, 17

U.N. DOCUMENTS

G.A. Res. 37/7, U.N. Doc. A/RES/37/7 (Oct. 28, 1982). ............................................................. 13

G.A. Res. 66/215, U.N. Doc. A/RES/66/215 (Mar. 26, 2012) ............................................... 20, 22

G.A. Res. 67/78, U.N. Doc. A/RES/67/78 (Apr. 18, 2013). ......................................................... 12

UNEP, Environmental Law: Guidelines and Principles on Shared Natural Resources (Nairobi,

1978). ........................................................................................................................................ 18

JUDICIAL AND ARBITRAL DECISIONS

Ambatielos Case (Greece v. U.K.), Merits, 1953 I.C.J. 10, (May 19)............................................ 2

v

Case Concerning Legality of Use of Force (Yug. v. U.S.), Provisional Measures, 1999 I.C.J. 916,

(Jun. 2). ....................................................................................................................................... 2

Chorzów Factory (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26). ..................................... 9

Corfu Channel (U.K. v. Albania), 1949 I.C.J. 19 (Apr. 9). .......................................................... 20

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 229 (July 8).

................................................................................................................................................... 18

Military and Paramilitary Activities in and against Nicaragua (Nic. v. U.S.), Jurisdiction and

Admissibility, 1984 I.C.J 392 (Nov. 26) ................................................................................. 2, 4

Mox Plant Case (Ire. v. U.K.), Order, Request for Provisional Measures, ITLOS Case No. 10,

2001 I.C.G.J. 343 (Dec. 3) (Separate Opinion of Judge Treves). ............................................... 7

Pulp Mills (Arg. v. Uru.), 2010 I.C.J. 14 (Apr. 20) ...................................................................... 13

R v. Crown Zellerbach Canada Ltd., [1944] DLR 161 ................................................................. 12

South China Sea Arbitration, Award, PCA Case Nº 2013-19, 12 July 2016................................ 15

Southern Bluefin Tuna (Aust. v. Jap. & N.Z. v. Jap.) Provisional Measures, Order of Aug. 27,

1999 ITLOS Rep. 1624 ............................................................................................................. 13

Southern Bluefin Tuna Cases (Aust. v. Jap. & N.Z. v. Jap.), Award of 4 Aug. 2000, XXIII

R.I.A.A. 1 .................................................................................................................................... 6

Territorial and Maritime Dispute (Nic. v. Col.), Preliminary Objections, Judgment, 2007 ICJ 832

(Dec. 13). .................................................................................................................................. 10

The Electricity Company of Sofia and Bulgaria (Belg. v. Bulg.), Preliminary Objection, 1939

P.C.I.J. (ser. A/B) No. 77 (Apr. 4) .............................................................................................. 8

The Republic of Philippines v. The People’s Republic of China, PCA Case No. 2013-19, Award

on Jurisdiction and Admissibility, 29 October 2015. ................................................................. 6

vi

United Kingdom v. EC Commission [1998] ECR I-265 .............................................................. 12

Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC 2715 .................................... 12

TREATISES

ALFRED H.A. SOONS, MARINE SCIENTIFIC RESEARCH AND THE LAW OF THE SEA (1982). ........... 21

ANTHONY AUST., MODERN TREATY LAW AND PRACTICE (2010). ................................................ 24

BIRNIE, BOYLE & REDGEWELL, INTERNATIONAL LAW AND THE ENVIRONMENT (2009). .............. 18

BRIAN SMITH, STATE RESPONSIBILITY AND THE MARINE ENVIRONMENT (1988). ........................ 19

IBRAHIM F.I. SHIHATA, THE POWER OF THE INTERNATIONAL COURT TO DETERMINE ITS OWN

JURISDICTION (1965). .................................................................................................................. 9

NERINA BOSCHIERO, ET AL., EDS., INTERNATIONAL COURTS AND THE DEVELOPMENT OF

INTERNATIONAL LAW: ESSAYS IN HONOUR OF TULLIO TREVES (2013). ..................................... 4

NORDQUIST, ROSENNE & YANKOV (EDS.), IV UNITED NATIONS CONVENTION ON THE LAW OF THE

SEA 1982: A COMMENTARY (1991). .......................................................................................... 15

RANDALL S. ABATE, CLIMATE CHANGE IMPACTS ON OCEAN AND COASTAL LAW: U.S. AND

INTERNATIONAL PERSPECTIVES (2015). .................................................................................... 15

Riccardo-Pisillo Mazzeschi, Forms of International Responsibility for Environmental Harm, in

INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM (1991). ................................... 20

SHABTAI ROSENNE, I THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920-2005 (2006).

..................................................................................................................................................... 9

Shabtai Rosenne, The Time Factor in the Jurisdiction of the International Court of Justice, in AN

INTERNATIONAL LAW MISCELLANY (1993). ................................................................................ 8

WALTER TUCKER & DAVID CATE EDS., THE 1994 ARCTIC OCEAN SECTION: THE FIRST MAJOR

SCIENTIFIC CROSSING OF THE ARCTIC OCEAN (1996). .............................................................. 23

vii

ARTICLES

A.L. Strong et. al, Ocean Fertilization: Science, Policy and Commerce, 22 OCEANOGRAPHY

MAG. 236 (2009). ...................................................................................................................... 23

Aaron Strong et al., Ocean Fertilization: Time to Move On, 461 NATURE 347 (2009). .............. 13

Anna Maria Hubert, The New Paradox in Marine Scientific Research: Regulating the Potential

Environmental Impacts of Conducting Ocean Science 42 OCEAN DEV. & INT’L L. 329 (2011).

................................................................................................................................................... 21

Anna-Maria Hubert, The New Paradox in Marine Scientific Research, 42 OCEAN DEV. & INT’L

L. 329 (2011). ........................................................................................................................... 11

C.S. Law, et al., Predicting and Monitoring the Effects of Large Scale Ocean Fertilization on

Marine Trace Gas Emissions, 364 MAR. ECOLOGY PROG. SER. 283 (2009). ........................... 14

Charles Trick et al., Iron Enrichment Stimulates Toxic Diatom Production in High-Nitrate, Low-

Chlorophyll Areas, 107 PROC. NAT’L ACAD. SCI. 5887 (2010). ............................................... 13

Christopher C. Joyner, Biodiversity in the Marine Environment: Resource Implications for the

Law of the Sea, 28 VAND. J. TRANSNAT’L L. 635 (1995). ........................................................... 2

David Freestone & Rosemary Rayfuse, Iron Ocean Fertilization and International Law, 364

MAR. ECOLOGY PROG. SER., 227 (2008). .................................................................................. 23

David Freestone, The Road from Rio: International Environment Law after the Earth Summit, 6

J. ENVT’L L. 193 (1995). ........................................................................................................... 13

David J. Scheffer, Non-Judicial State Remedies and the Jurisdiction of the International Court of

Justice, 27 STAN. J. INT’L L. 83 (1990). ...................................................................................... 1

Doug Wallace et al., Ocean Fertilization: A Scientific Summary for Policy Makers,

UNESCO/IOC, Paris (IOC/BRO/2012/2) .................................................................................. 6

viii

George C. Kassoulides, Ban on Marine Incineration, 19 MAR. POLLUTION BULL. 648 (1998)... 14

Harald Ginzky, Ocean Fertilization as Climate Change Mitigation Measure - Consideration

under International Law, 7.1 J. FOR EUR. ENVTL. & PLAN. L. 57 (2010). ................................ 22

Hugh Powell, What are the Possible Side-Effects?, 46 OCEANUS MAGAZINE 16 (2008). ............ 16

Karen N Scott, Regulation Ocean Fertilization Under International Law: The Risks, 2013 CCLR

108 (2013); Statement of Concern Regarding Iron Fertilization in Ocean Waters West of

Canada in July 2012, in Report of the 7th mtg. of COP (LC 34/15). ........................................ 19

Ken O. Buesseler et al., Ocean Iron Fertilization: Moving Forward in a Sea of Uncertainty, 319

SCIENCE 162 (2008). ................................................................................................................. 15

Long Cao & Ken Calderia, Can Ocean Iron Fertilization Mitigate Ocean Acidification, 99

CLIMATIC CHANGE 303 (2010). ................................................................................................... 4

Lyle Glowka, Complementarities between the Convention on Migratory Species and the

Convention on Biological Diversity, 3 J. INT’L WILDLIFE L. & POL’Y 205 (2000). .................. 20

Mark Lawrence, Side Effects of Oceanic Iron Fertilization, 297 SCIENCE 1993 (2002). ............. 13

Philip Williamson et al., Ocean Fertilization for Geoengineering: A Review of Effectiveness,

Environmental Impacts and Emerging Governance, 90 PROCESS SAFETY & ENVTL.

PROTECTION 475 (2012). ........................................................................................................... 13

Philomene Verlaan, Geo-engineering, Climate Change and the Law of the Sea, 4 CARBON

CLIMATE L. REV. 446 (2009). ...................................................................................................... 4

R. Dalton, Ocean Tests Raise Doubts Over Use of Algae as Carbon Sink, 420 NATURE 722

(2002). ....................................................................................................................................... 23

Riccardo-Pisillo Mazzeschi, Forms of International Responsibility for Environmental Harm, in

INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM 29 (1991). .............................. 20

ix

Richard J. McLaughlin, UNCLOS and the Demise of the United States’ Use of Trade Sanctions

to Protect Dolphins, Sea Turtles, Whales, and Other International Marine Living Resources,

21 ECOLOGY L. Q. 1 (1994). ........................................................................................................ 8

ROBERT KOLB, THE INTERNATIONAL COURT OF JUSTICE (2013). ................................................... 1

Rosemary Rayfuse et al., Ocean Fertilisation and Climate Change: The Need to Regulate

Emerging High Seas Uses, 23 INT’L J. MARINE & COASTAL L. 297 (2008). ............................ 17

Rosemary Rayfuse, Drowning Our Sorrows to Secure a Carbon Free Future? Some

International Legal Considerations Relating to Sequestering Carbon by Fertilizing the

Oceans, 31 UNSW L.J. 919 (2008) .......................................................................................... 17

S.E. Moore, Marine Mammals As Ecosystem Sentinels, 89 J. MAMMALOGY 534 (2008). ............. 5

S.W Chisholm et al., Dis-crediting Ocean Fertilisation, 294 SCIENCE 309 (2001). .................... 16

MISCELLANEOUS

Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities, 2001 in Report of the International Law Commission on the Work of its Fifty-Third

Session, Report of the Commission to the General Assembly on the work of its fifty-third

session, (Apr. 23-June 1, July 2-Aug. 10, 2001) U.N. Doc. A/CN.4SER.A/2001/Add.1 (Part 2)

(2001) .................................................................................................................................. 19, 20

Decision IX/16, CBD COP 9th mtg., 9 Oct. 2008, UNEP/CBD/COP/DEC/IX/16 ................... 3, 22

Decision X/33, CBD COP 10th mtg., 29 Oct. 2010, UNEP/CBD/COP/DEC/X/33 ........... 3, 22, 23

Decision XI/20, CBD COP 11th mtg., 5 Dec. 2012, UNEP/CBD/COP/DEC/XI/20 .................... 22

IMO, Report of the 35th mtg. of COP to the London Convention & 8th mtg. of COP to the

London Protocol, 2013 LC 35/15 (Oct. 21). ............................................................................. 12

x

IMO, Report of the 37th mtg. of COP to the London Convention & 10th mtg. of COP to the

London Protocol, 2015 LC 37/16 (Oct. 22). ............................................................................. 12

Jessica Marshal, Ocean Engineering Scheme May Prove Lethal: Seeding the Ocean with Iron

Could Result in the Production of Potential Neurotoxin, Putting the Lives of Birds, Fish and

even Humans at Risk, DISCOVERY NEWS, March 15 2010,

http://news.discovery.com/earth/geoengineering-carbon-sequestration-phytoplankton.html. . 16

Monodon monoceros, THE IUCN RED LIST OF THREATENED SPECIES 2012, available at

http://www.iucnredlist.org/details/13704/0 ................................................................................ 7

Narwhal Species, WWF, available at http://www.worldwildlife.org/species/narwhal. ............... 16

Ocean Fertilization, The Potential of Ocean Fertilization for Climate Change Mitigation,

REPORT TO CONGRESS, (2010), available at

http://www.gc.noaa.gov/documents/2010_climate_fert_rept_Congress_final.pdf .................. 12

Planktos’s commercial ocean iron fertilization carbon-trading gambit: Brakes on Flakes, ETC

GROUP, 22 June 2007, available at http://www.etcgroup.org/fr/node/641............................... 14

Resolution LC-LP.1(2008) on the Regulation of Ocean Fertilization, London Protocol COP 3rd

mtg. ........................................................................................................................................... 11

Resolution LC-LP.2(2010) on the Assessment Framework for Scientific Research Involving

Ocean Fertilization, London Protocol COP 5th mtg., 14 Oct. 2010 .......................................... 11

Resolution LP.4(8) on the Amendment of the London Protocol to Regulate the Placement of

Matter for Ocean Fertilization and Other Marine Geoengineering Activities, London Protocol

COP 8th mtg., 18 Oct. 2013) ..................................................................................................... 11

Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts of

Ocean Fertilization on Marine Biodiversity, CBD TECHNICAL SERIES NO. 45 (2009) .............. 3

xi

STATEMENT OF JURISDICTION

Pursuant to the Joint Notification and the Record concluded on 23rd June, 2016 including

the Clarifications agreed to therein, between the Federal States of Aeolia and the Republic of

Rinnuco, and Article 287 of the United Nations Convention on the Law of the Sea and Article 27

of the Convention on Biodiversity, Aeolia submits to this Honourable Court its dispute regarding

the differences between the parties concerning the Questions Relating to Ocean Fertilization and

Marine Biodiversity. In accordance with Article 36(1) and Article 40(1) of the Statute of the

International Court of Justice, the Court has jurisdiction to decide all matters referred to it for

decision.

This Honourable Court is requested to adjudge the dispute in accordance with the rules

and principles of general international law, including any applicable treaties.

xii

QUESTIONS PRESENTED

-I-

Whether the Court has jurisdiction to hear the present matter?

-II-

Whether Rinnuco has violated international law through its ocean fertilization project?

xiii

STATEMENT OF FACTS

The Federal States of Aeolia [“Aeolia”] and the Republic of Rinnuco [“Rinnuco”] are

developed, neighbouring coastal States. They are surrounded by Muktuk Ocean, a shared natural

resource, which is a habitat to narwhals. Both States are range-States for narwhals which

constitute a major part of Aeolia’s eco-tourism industry (R.¶1-¶3).

Aeolia and Rinnuco are parties to the United Nations Convention on the Law of the Sea

[“UNCLOS”], the Protocol to the Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter [“London Protocol”] and the Convention on Biological

Diversity [“CBD”]. Both States have submitted to the jurisdiction of the International Court of

Justice [“ICJ” or the “Court”] under the UNCLOS and the CBD. While ratifying the London

Protocol, Rinnuco declared that its consent will be required before submitting a dispute to

London Protocol’s Arbitral Procedure regarding the application of Article 3.1 of the London

Protocol (R.¶6-¶9).

After conducting an environmental impact assessment [“EIA”] in the year 2014, Rinnuco

initiated an ocean fertilization project in its exclusive economic zone [“EEZ”], despite Aeolia’s

protests over its possible side-effects (R.¶12-¶13). A few months later, nine narwhals were

found dead off the coast of Rinnuco, which had never happened in the past. While Aeolia

requested Rinnuco to halt the project, Rinnuco intends to continue with it. However, it has

suspended the project till the ICJ’s decision on the dispute (R.¶18-¶21).

The States failed to resolve their dispute regarding Rinnuco’s project through

negotiations and mediation. On 21 March 2016, Aeolia requested Rinnuco to submit the matter

to the ICJ under Article 287 of the UNCLOS (C. 13). However, Rinnuco refused and instead, on

xiv

28 March 2016, revoked the ICJ’s jurisdiction for disputes arising out of the UNCLOS (R.¶9).

Thereafter, Aeolia instituted proceedings against Rinnuco by an application dated 4 April 2016

in the ICJ (R.¶23).

xv

SUMMARY OF ARGUMENTS

-I-

The ICJ has jurisdiction over the present dispute under Article 27 of the CBD as well as

Article 287 of the UNCLOS. This is because the dispute pertains to the interpretation and

application of both the treaties. Under the CBD, the obligation to conserve biodiversity requires

the protection of the marine environment which may get adversely affected by large scale ocean

fertilization projects such as the one being conducted by Rinnuco. This is evidenced from several

CBD reports and decisions which concern the impact of ocean fertilization on marine

biodiversity.

Under the UNCLOS, the express inclusion of the Monodontidae family, which includes

narwhals, as well as the presence of substantive provisions relating to the preservation of marine

biodiversity show that the present dispute concerns its interpretation or application. The

exceptions to ICJ jurisdiction under Article 281 and Article 282 do not apply because the parties

have exhausted all other agreed means of settlement and the present dispute concerns the

substantive provisions of the UNCLOS. Moreover, Rinnuco’s notice of revocation is not relevant

to this dispute as it did not come into force when the dispute was brought to the Court. In any

case, being the Court first seized of the dispute, the jurisdiction of the ICJ would prevail in case

of any overlap with other forums.

-II-

Rinnuco has violated its obligations under the London Protocol through its ocean

fertilization experiment in the Muktuk Ocean as its project is not for legitimate scientific

research and constitutes dumping. Moreover, Rinnuco has contravened the precautionary

xvi

principle by conducting the project without assessing it as per the assessment framework

formulated under the Protocol, despite the high risks involved. Further, as the project causes

harm to the marine environment and highly migratory species, Rinnuco has contravened the

provisions of the UNCLOS. Considering that the Muktuk Ocean is a shared resource, Rinnuco

has also violated its duty not to cause transboundary harm under the UNCLOS.

Large scale ocean fertilization is considered impermissible by the Conference of Parties

to the CBD [“COP”] as it can adversely affect the marine ecosystem. By conducting such a

project, Rinnuco has violated its duty to conserve biological resources under the CBD.

Moreover, as the project is not scientifically justified, Rinnuco has violated its duty to minimize

adverse effects. Further, by failing to take conservation measures for narwhals, Rinnuco has

violated its obligations under the Convention on the Conservation of Migratory Species of Wild

Animals [“CMS”].

1

ARGUMENTS

I. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION OVER THE PRESENT

DISPUTE.

The ICJ has jurisdiction over the present dispute under the CBD1 and the UNCLOS2 [A].

Further, the ICJ retains jurisdiction even if the dispute falls under the London Protocol3 as it is

the most competent forum to deal with all aspects of the present claim [B].

A. THE COURT HAS JURISDICTION UNDER THE CBD AND THE UNCLOS.

When a preliminary objection to its jurisdiction is raised, in practice, the ICJ reads

jurisdiction clauses liberally.4 In order to establish the Court’s jurisdiction under a particular

treaty, the applicant must only prove that the dispute is about a question concerning the

‘interpretation or application’ of the treaty,5 and need not establish the correctness of any

1 Convention on Biological Diversity, Jun. 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD].

2 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3 [hereinafter

UNCLOS].

3 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matter, Nov. 7, 1996, 36 I.L.M. 1 [hereinafter London Protocol].

4 David J. Scheffer, Non-Judicial State Remedies and the Jurisdiction of the International Court

of Justice, 27 STAN. J. INT’L L. 83, 140-42 (1990).

5 ROBERT KOLB, THE INTERNATIONAL COURT OF JUSTICE 440 (2013).

2

particular interpretation.6 In fact, the Court only rejects jurisdiction if the interpretation sought to

be advanced is manifestly ill-conceived.7

Moreover, in Nicaragua, the Court held that in order to establish its jurisdiction under a

particular treaty, the applicant must establish a reasonable connection between the treaty and the

claims submitted.8 This threshold is met once the applicant proves that its claims under the

particular treaty are arguable.9 Consequently, it is irrelevant whether these constructions of the

treaty will ultimately prevail in the merits stage.10

Here, the Court has jurisdiction because Aeolia’s claims fall within the arguable

constructions of the CBD [i] and the UNCLOS [ii].

i) The Court has jurisdiction in accordance with Article 27 of the CBD.

The obligation to conserve biodiversity under the CBD11 requires protection of interlinked

components in the marine environment including species, habitats and ecosystems.12 Large scale

6 Id.

7 See, e.g., Case Concerning Legality of Use of Force (Yug. v. U.S.), Provisional Measures, 1999

I.C.J. 916, 923-926, ¶21 et seq (Jun. 2).

8 Military and Paramilitary Activities in and against Nicaragua (Nic. v. U.S.), Jurisdiction and

Admissibility, 1984 I.C.J 392, 427, ¶81 (Nov. 26) [hereinafter Nicaragua].

9 Ambatielos Case (Greece v. U.K.), Merits, 1953 I.C.J. 10, at 18 (May 19).

10 Id.

11 CBD, supra note 1, art. 8.

3

ocean fertilization projects can adversely affect these marine ecosystems.13 Accordingly, several

CBD reports14 and decisions15 concern the impact of ocean fertilization on marine biodiversity.

Both Aeolia and Rinnuco have agreed under Article 27 to submit disputes arising under the

CBD to the ICJ.16 As this matter concerns ocean fertilization and marine biodiversity, it involves

the “interpretation or application”17 of the CBD. Therefore, the Court has jurisdiction.18

ii) The Court has jurisdiction under Article 287 of the UNCLOS.

The ICJ has jurisdiction under Article 287 of the UNCLOS as the present dispute concerns

the “interpretation or application” of the UNCLOS [a]. Moreover, both parties have already

12 Christopher C. Joyner, Biodiversity in the Marine Environment: Resource Implications for the

Law of the Sea, 28 VAND. J. TRANSNAT’L L. 635, 644-46 (1995).

13 Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts of

Ocean Fertilization on Marine Biodiversity, CBD TECHNICAL SERIES NO. 45, at 9 (2009)

[hereinafter CBD Report].

14 See, e.g., id.

15 See, e.g., Decision X/33, CBD COP 10th mtg., 29 Oct. 2010, UNEP/CBD/COP/DEC/X/33 at

¶8(w) [hereinafter X/33]; Decision IX/16, CBD COP 9th mtg., 9 Oct. 2008,

UNEP/CBD/COP/DEC/IX/16 at Part C [hereinafter IX/16].

16 Record, ¶6.

17 CBD, supra note 1, art. 27(1).

18 Id., art. 27(3).

4

exhausted other peaceful means agreed between them for settlement of disputes [b]. Further, the

notice of revocation filed by Rinnuco is not applicable to this dispute [c].

a. The dispute concerns the “interpretation or application” of the UNCLOS.

Under the UNCLOS, States have a duty to protect and preserve the marine environment.19 In

particular, Article 194 requires them to prevent, reduce and control pollution of the marine

environment from any source. Pollution in this context is defined according to its effects such as

harm to marine life, and not the substance causing it.20 As ocean fertilization has the potential of

harming marine biodiversity,21 any dispute relating to an ocean fertilization project concerns the

“interpretation or application”22 of the UNCLOS.23

Further, the Court looks at all the parts of a treaty to determine whether the dispute pertains

to the “interpretation or application” of the treaty.24 The UNCLOS expressly includes the

19 UNCLOS, supra note 2, arts. 56(2), 64, 65, 192, 194(5) & 210(6).

20 Id., art. 1(1)(4); Philomene Verlaan, Geo-engineering, Climate Change and the Law of the

Sea, 4 CARBON CLIMATE L. REV. 446-48 (2009).

21 Long Cao & Ken Calderia, Can Ocean Iron Fertilization Mitigate Ocean Acidification, 99

CLIMATIC CHANGE 303 (2010).

22 UNCLOS, supra note 2, art. 287(1).

23 NERINA BOSCHIERO, ET AL., EDS., INTERNATIONAL COURTS AND THE DEVELOPMENT OF

INTERNATIONAL LAW: ESSAYS IN HONOUR OF TULLIO TREVES 407 (2013).

24 Nicaragua, supra note 8, at 428, ¶83.

5

Monodontidae family25 within Part V of the treaty.26 Considering that narwhals fall within this

family27 and the present dispute relates to their protection,28 the matter is covered by the

UNCLOS.

b. No settlement has been reached by Aeolia and Rinnuco by recourse to the means

agreed under the London Protocol.

Under Article 281, the compulsory means of dispute settlement of UNCLOS are applicable

only where no settlement has been reached after recourse to other peaceful means agreed

between the parties [1]. Further, their applicability is contingent on the condition that no further

procedure of settlement is excluded by such other peaceful means [2].

1. The procedure agreed under the London Protocol has been exhausted.

Under the London Protocol, disputes can be resolved through negotiation, mediation or

conciliation;29 failing which parties may have recourse to the Arbitral Procedure.30 However, for

disputes relating to Article 3.1 of the Protocol, the parties may notify the Secretary-General that

their prior consent will be required before initiating the second stage, i.e. the Arbitral

25 UNCLOS, supra note 2, annex I.

26 Id., art. 64.

27 S.E. Moore, Marine Mammals As Ecosystem Sentinels, 89 J. MAMMALOGY 534 (2008).

28 Record, ¶¶13, 20, annex B.

29 London Protocol, supra note 3, art. 16(1).

30 Id., art. 16(2); annex III.

6

Procedure.31 Article 3.1 covers disputes where parties introduce new matter into the marine

environment, without any conclusive evidence as to the effects of these inputs. Similarly,

introduction of large quantities of ferrous sulfate powder into the marine environment by

Rinnuco, without knowledge of its effects,32 falls within the ambit of Article 3.1 of the Protocol.

Here, Rinnuco has notified the Secretary-General that for disputes concerning Article 3.1, its

prior consent will be required before initiating the Arbitral Procedure.33 As Rinnuco has not

given its consent for the Arbitral Procedure yet, the only applicable settlement procedures under

the London Protocol that it has agreed to, are negotiation and mediation. Rinnuco and Aeolia

have conducted “prolonged and serious”34 negotiations and mediation to resolve the present

dispute.35 As all peaceful means agreed upon by the parties have been exhausted, the ICJ has

jurisdiction under Article 287 as the forum for compulsory dispute settlement.

2. The London Protocol does not exclude further procedure of settlement.

In the South China Sea Arbitration, it was held that to exclude Article 287 procedures, the

peaceful means of settlement agreed upon by parties must have an express exclusion of recourse

31 Id., art. 16(5).

32 Doug Wallace et al., Ocean Fertilization: A Scientific Summary for Policy Makers,

UNESCO/IOC, Paris (IOC/BRO/2012/2) at 1 [hereinafter UNESCO].

33 Record, ¶7.

34 Southern Bluefin Tuna Cases (Aust. v. Jap. & N.Z. v. Jap.), Award of 4 Aug. 2000, XXIII

R.I.A.A. 1, 42, ¶55.

35 Record, ¶22.

7

to further procedures of settlement.36 No such express exclusion of further procedures is present

in the London Protocol. In fact, Article 16(2) of the Protocol refers to the procedure under

Article 287 of the UNCLOS as an alternative to the Arbitral Procedure, thereby incorporating it

under the Protocol. Therefore, the ICJ’s jurisdiction under Article 287 of the UNCLOS has not

been excluded.

c. The present dispute does not concern the interpretation or application of the

substantive provisions of the London Protocol.

According to Article 282, if States have entered into a separate agreement for settlement of

disputes pertaining to the interpretation or application of the UNCLOS, then the dispute

settlement mechanism under such agreement would prevail over that of the UNCLOS. However,

this is only applicable where the dispute substantively falls within the provisions of the other

agreement.37

The present dispute relates to the legality of Rinnuco’s large scale ocean fertilization project

as well as its impact on the Muktuk Ocean’s marine biodiversity and its migratory species like

the narwhals.38 The London Protocol only regulates the dumping of wastes or other matter in the

36 The Republic of Philippines v. The People’s Republic of China, PCA Case No. 2013-19,

Award on Jurisdiction and Admissibility, 87, ¶223, 29 October 2015.

37 Mox Plant Case (Ire. v. U.K.), Order, Request for Provisional Measures, ITLOS Case No. 10,

2001 I.C.G.J. 343 (Dec. 3) (Separate Opinion of Judge Treves).

38 Monodon monoceros, THE IUCN RED LIST OF THREATENED SPECIES 2012, available at

http://www.iucnredlist.org/details/13704/0 [hereinafter IUCN Red List].

8

seas and is not concerned with the preservation of marine biodiversity.39 Therefore, the present

dispute does not substantively fall within the provisions of the London Protocol. Consequently,

the dispute settlement mechanism of the UNCLOS prevails and the ICJ retains jurisdiction over

the dispute.

d. The notice of revocation filed by Rinnuco is not applicable to this dispute.

States parties to the UNCLOS can choose the ICJ for settlement of disputes pertaining to the

UNCLOS by way of a declaration.40 Once chosen, the parties may submit such disputes only to

the ICJ.41 The UNCLOS requires such declarations to remain in force until three months after

notice of revocation.42 This is consistent with the Court’s practice of preventing States from

acting in bad faith and suddenly changing their choice of settlement before expected

proceedings.43 For instance, in Electricity Company of Sofia, the Bulgaro-Belgian Treaty44 was

39 London Protocol, supra note 3, art. 2.

40 UNCLOS, supra note 2, art. 287(1).

41 Id., art. 287(4).

42 Id., art. 287(6).

43 Richard J. McLaughlin, UNCLOS and the Demise of the United States’ Use of Trade

Sanctions to Protect Dolphins, Sea Turtles, Whales, and Other International Marine Living

Resources, 21 ECOLOGY L. Q. 1, 53 (1994).

44 Bulgaro-Belgian Treaty of Conciliation, Arbitration and Judicial Settlement, June 23, 1931,

137 L.N.T.S. 191.

9

denounced by Bulgaria prior to the institution of proceedings. However, since the denunciation

took effect later according to the terms of the Treaty, the Court retained its jurisdiction.45

Both Aeolia and Rinnuco made written declarations choosing the ICJ as the forum to settle

disputes, while signing the UNCLOS.46 On 21 March 2016,47 when Aeolia requested Rinnuco to

submit the present matter to the Court in accordance with their declarations,48 Rinnuco refused

and immediately deposited a notice of revocation of the declaration on 28 March 2016.49 As the

present dispute was instituted within the three-month period, that is, on 4 April 2016,50 the notice

of revocation is without effect.

B. EVEN IF THE LONDON PROTOCOL IS APPLICABLE, THE ICJ HAS JURISDICTION AS IT IS THE

MOST COMPETENT FORUM TO DEAL WITH ALL ASPECTS OF THE PRESENT CLAIM.

45 The Electricity Company of Sofia and Bulgaria (Belg. v. Bulg.), Preliminary Objection, 1939

P.C.I.J. (ser. A/B) No. 77, at 64 (Apr. 4); Shabtai Rosenne, The Time Factor in the Jurisdiction

of the International Court of Justice, in AN INTERNATIONAL LAW MISCELLANY 18 (1993).

46 Record, ¶9.

47 Clarifications, A13.

48 Record, ¶22.

49 Record, ¶9.

50 Record, ¶23.

10

Where a case falls within the jurisdiction of multiple international tribunals, the Court gives

preference to that jurisdiction which encompasses all the aspects of the claim.51 For instance, in

Chorzów Factory,52 the PCIJ established its own jurisdiction over other specialized tribunals as it

held that they were not competent to deal with all aspects of the claim or to give parties the kind

of satisfaction they could get from the Court.53 Further, the tribunal first seized of the dispute

assumes jurisdiction in cases where other overlapping jurisdictions are also possible.54 Such

jurisdiction is not affected even when there is another court with jurisdiction from a later treaty

which is lex specialis.55

Under Article 293 of the UNCLOS, the ICJ can adjudicate claims based on other applicable

treaties including the CBD, London Protocol and the CMS.56 In contrast, the Tribunal under the

51 IBRAHIM F.I. SHIHATA, THE POWER OF THE INTERNATIONAL COURT TO DETERMINE ITS OWN

JURISDICTION 258-59 (1965).

52 Chorzów Factory (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26).

53 Id., at 27-31.

54 SHABTAI ROSENNE, I THE LAW AND PRACTICE OF THE INTERNATIONAL COURT, 1920-2005 39

(2006).

55 Territorial and Maritime Dispute (Nic. v. Col.), Preliminary Objections, Judgment, 2007 ICJ

832, 872-873, ¶133 (Dec. 13).

56 Convention on the Conservation of Migratory Species of Wild Animals, June 6, 1979, 1651

U.N.T.S. 333 [hereinafter CMS]; UNCLOS, supra note 2, art. 293; Vienna Convention on the

Law of Treaties, Jan. 27, 1980, art. 31(3), 1155 U.N.T.S. 331 [hereinafter VCLT].

11

London Protocol can only adjudicate upon matters within the purview of the Protocol.57

Therefore, the ICJ is the most competent forum to deal with all the claims of the present matter.

Further, the ICJ was first seized of the present dispute and can thus assume jurisdiction over it.

II. RINNUCO HAS VIOLATED INTERNATIONAL LAW THROUGH ITS OCEAN FERTILIZATION

PROJECT.

Rinnuco has violated its obligations under the London Protocol [A], the UNCLOS [B], the

CBD [C] and the CMS [D].

A. RINNUCO HAS VIOLATED ITS OBLIGATIONS UNDER THE LONDON PROTOCOL.

Rinnuco has violated its obligations under the London Protocol as its project constitutes

dumping [i], contravenes the precautionary approach [ii] and transforms one form of pollution

into another [iii].

i) Rinnuco’s project constitutes dumping.

Article 4 of the London Protocol prohibits the dumping of matter into the sea. In practice,58

States consider ocean fertilisation to fall within the scope of “dumping” under Article 4.59

Accordingly, only those ocean fertilization projects which constitute legitimate scientific

research are not considered dumping.60 In order to determine whether such a project constitutes

57 London Protocol, supra note 3, art. 16.

58 VCLT, supra note 56, art. 31(3)(a).

59 Resolution LC-LP.1(2008) on the Regulation of Ocean Fertilization, London Protocol COP 3rd

mtg. at ¶8 [hereinafter Resolution LC-LP.1(2008)].

60 Id.

12

legitimate scientific research and is not contrary to the aims of the London Protocol, the

Assessment Framework under Resolution LC-LP.2 (2010) [“Assessment Framework”] has to

be used.61 Such a restrictive framework is required to protect the marine environment, due to the

high degree of risk involved in ocean fertilization.62 While the Assessment Framework is not

binding, the subsequent practice of States which have been involved in ocean fertilization such

as US63, Germany64, UK65and Canada66 evidences compliance with this framework. In fact, the

61 Id ¶4; Resolution LC-LP.2(2010) on the Assessment Framework for Scientific Research

Involving Ocean Fertilization, London Protocol COP 5th mtg., 14 Oct. 2010, at ¶3 [hereinafter

Resolution LC-LP.2(2010)]; Resolution LP.4(8) on the Amendment of the London Protocol to

Regulate the Placement of Matter for Ocean Fertilization and Other Marine Geoengineering

Activities, London Protocol COP 8th mtg., 18 Oct. 2013), at ¶3 [hereinafter Resolution LP.4(8)].

62 Anna-Maria Hubert, The New Paradox in Marine Scientific Research, 42 OCEAN DEV. & INT’L

L. 329, 341 (2011).

63 Ocean Fertilization, The Potential of Ocean Fertilization for Climate Change Mitigation,

REPORT TO CONGRESS, 30 (2010), available at

http://www.gc.noaa.gov/documents/2010_climate_fert_rept_Congress_final.pdf [hereinafter

CONGRESS].

64 IMO, Report of the 35th mtg. of COP to the London Convention & 8th mtg. of COP to the

London Protocol, 2013 LC 35/15, ¶4.6 (Oct. 21).

65 IMO, Report of the 37th mtg. of COP to the London Convention & 10th mtg. of COP to the

London Protocol, 2015 LC 37/16, ¶5.12 (Oct. 22).

13

UN General Assembly has also recognized this framework.67 In Rinnuco’s own admission, it has

not complied with the terms of the Assessment Framework.68 Thus, Rinnuco’s project constitutes

dumping.

ii) Rinnuco has violated its obligation to apply a precautionary approach.

The precautionary principle is a norm of customary international law as evidenced through

State practice,69 judicial decisions,70 and international instruments,71 and is backed by the

requisite opinio juris.72 This principle obliges States to take preventive action even if there is

66 IMO, Background and Literature Review Addressing Main Elements in the LC/LP Scientific

Groups’ Statement of Concern on Ocean Fertilization Submitted by Canada, 2008 LC/SG 31/2,

¶5.5 (Mar. 14).

67 G.A. Res. 67/78, ¶167, U.N. Doc. A/RES/67/78 (Apr. 18, 2013).

68 Record, ¶18.

69 United Kingdom v. EC Commission [1998] ECR I-265, ¶99; R v. Crown Zellerbach Canada

Ltd., [1944] DLR 161, 173-4; Vellore Citizens’ Welfare Forum v. Union of India, AIR 1996 SC

2715 ¶¶10, 11, 15.

70 Pulp Mills (Arg. v. Uru.), 2010 I.C.J. 14 (Apr. 20) [hereinafter Pulp Mills]; Southern Bluefin

Tuna (Aust. v. Jap. & N.Z. v. Jap.) Provisional Measures, Order of Aug. 27, 1999 ITLOS Rep.

1624 ¶¶77-80.

71 Rio Declaration on Environment and Development, June 14, 1992, 31 I.L.M. 874, Principle

15; London Protocol, supra note 3, art. 3.3.

72 G.A. Res. 37/7, ¶11, U.N. Doc. A/RES/37/7 (Oct. 28, 1982).

14

uncertainty about the consequences of an activity on the environment.73 Under Article 3.1 of the

London Protocol, States have to apply this principle to any dumping of matter. The possible

consequences of dumping iron for ocean fertilization are increased ocean acidification,74

disruption of marine ecosystems,75 creation of harmful algal blooms,76 and increase in the

emission of greenhouse gases such as nitrous oxide,77 as observed in previous ocean fertilization

experiments.78 This is more so in the case of large scale ocean fertilization, where the effects

spread over a large period of time79 and are irreversible.80 For instance, the US refused to allow

the large scale ocean fertilization project “Planktos” to be carried out due to its possible effects

73David Freestone, The Road from Rio: International Environment Law after the Earth Summit,

6 J. ENVT’L L. 193, 210 (1995).

74 Philip Williamson et al., Ocean Fertilization for Geoengineering: A Review of Effectiveness,

Environmental Impacts and Emerging Governance, 90 PROCESS SAFETY & ENVTL. PROTECTION

475, 482 (2012).

75 Aaron Strong et al., Ocean Fertilization: Time to Move On, 461 NATURE 347 (2009).

76 Charles Trick et al., Iron Enrichment Stimulates Toxic Diatom Production in High-Nitrate,

Low-Chlorophyll Areas, 107 PROC. NAT’L ACAD. SCI. 5887 (2010).

77 Mark Lawrence, Side Effects of Oceanic Iron Fertilization, 297 SCIENCE 1993 (2002).

78 C.S. Law, et al., Predicting and Monitoring the Effects of Large Scale Ocean Fertilization on

Marine Trace Gas Emissions, 364 MAR. ECOLOGY PROG. SER. 283, 288 (2009).

79 UNESCO, supra note at 32.

80 Id. at 7.

15

on the marine environment.81 As Rinnuco did not assess its project according to the Assessment

Framework or take any other preventive measures,82 its actions violated Article 3.1 of the

London Protocol.

iii) Rinnuco violated its obligation to not transform one form of pollution into another.

Under Article 3.3 of the London Protocol, States cannot transform one form of pollution into

another. For instance, burning of wastes at sea violates this obligation as it transfers atmospheric

pollution into marine pollution.83 Similarly, Rinnuco added iron into the Muktuk Ocean to

increase the production of phytoplankton which absorb atmospheric carbon dioxide [“CO2”],

thereby transferring it into the ocean.84 Thus, Rinnuco has violated this obligation as its project

transforms air pollution into marine pollution.85

B. RINNUCO HAS VIOLATED ITS OBLIGATIONS UNDER THE UNCLOS.

81 Planktos’s commercial ocean iron fertilization carbon-trading gambit: Brakes on Flakes, ETC

GROUP, 22 June 2007, available at http://www.etcgroup.org/fr/node/641.

82 Record, ¶18.

83 George C. Kassoulides, Ban on Marine Incineration, 19 MAR. POLLUTION BULL. 648 (1998).

84 Ken O. Buesseler et al., Ocean Iron Fertilization: Moving Forward in a Sea of Uncertainty,

319 SCIENCE 162 (2008).

85 RANDALL S. ABATE, CLIMATE CHANGE IMPACTS ON OCEAN AND COASTAL LAW: U.S. AND

INTERNATIONAL PERSPECTIVES 387 (2015).

16

Rinnuco has violated its duty to protect and preserve the marine environment [i] and duty to

not cause transboundary harm [ii]. Further, its project is not authorized under Article 246 of the

UNCLOS [iii].

i) Rinnuco has violated its duty to protect and preserve the marine environment.

Under Article 192 of the UNCLOS, States have the obligation to protect and preserve the

marine environment in all areas of the ocean, including the EEZ.86 This includes prevention of

harm that would affect marine life indirectly through the destruction of their habitat.87 Rinnuco

violated this obligation as it violated the duty to protect highly migratory species [a] and caused

pollution by dumping [b].

a. Rinnuco has violated its duty to protect highly migratory species.

Under Articles 64 and 65 of the UNCLOS, States have an obligation to conserve highly

migratory species and cetaceans, which includes narwhals.88 Ocean fertilization involves the

addition of iron into the ocean to artificially increase the production of phytoplankton.89 Such

addition can change the natural composition of phytoplankton itself, which is the basis of the

marine food chain, causing changes in all species that depend on it.90 Further, the phytoplankton

86 NORDQUIST, ROSENNE & YANKOV (EDS.), IV UNITED NATIONS CONVENTION ON THE LAW OF

THE SEA 1982: A COMMENTARY 36 (1991).

87 South China Sea Arbitration, Award, PCA Case Nº 2013-19, 381, ¶959, 12 July 2016.

88 Record, ¶3.

89 S.W Chisholm et al., Dis-crediting Ocean Fertilisation, 294 SCIENCE 309, 310 (2001).

90 Id.

17

bloom consequent to Rinnuco’s project can produce toxins that harm marine mammals.91

Moreover, as a result of this bloom, the coastal waters will become warm, leading to melting of

sea ice.92 As narwhals depend on sea ice for their existence, this would lead to a decline in their

population.93 In fact, pursuant to the first phase of Rinnuco’s ocean fertilization project, nine

narwhals have already been found dead,94 an incident which had not occurred previously.95 Thus,

Rinnuco has violated the obligation to conserve highly migratory species.

b. Rinnuco has caused pollution by dumping.

Under Article 210(1) and (2) of the UNCLOS, States have an obligation to prevent pollution

to the marine environment by dumping. Dumping is the deliberate disposal of matter from

vessels into the sea.96 Such disposal, as per its ordinary meaning,97 occurs when matter is

91 Jessica Marshal, Ocean Engineering Scheme May Prove Lethal: Seeding the Ocean with Iron

Could Result in the Production of Potential Neurotoxin, Putting the Lives of Birds, Fish and even

Humans at Risk, DISCOVERY NEWS, March 15 2010,

http://news.discovery.com/earth/geoengineering-carbon-sequestration-phytoplankton.html.

92 Hugh Powell, What are the Possible Side-Effects?, 46 OCEANUS MAGAZINE 16 (2008).

93 Narwhal Species, WWF, available at http://www.worldwildlife.org/species/narwhal.

94 Record, ¶20.

95 Clarifications, A27.

96 UNCLOS, supra note 2, art. 1(1)(5)(a).

97 VCLT, supra note 56, art. 31(1).

18

deposited in the sea for the purpose of abandonment.98 Considering that ocean fertilization

involves the deposition of iron into the ocean with no intention of recovery,99 it constitutes

dumping. While dumping excludes placement for purposes other than mere disposal, such

placement cannot be contrary to the aims of the UNCLOS.100 Ocean fertilization can harm living

resources and marine life,101 and is therefore, contrary to the aim of the UNCLOS.102

Further, pollution is the introduction of substances which are likely to result in damaging effects

to living resources and marine life.103 Accordingly, States are mandated to minimize the release

of harmful substances.104 The release of ferrous sulfate into the ocean for Rinnuco’s project is

likely to result in damage to the marine environment.105 Thus, Rinnuco has violated its duty to

not cause pollution by dumping.

98 Rosemary Rayfuse et al., Ocean Fertilisation and Climate Change: The Need to Regulate

Emerging High Seas Uses, 23 INT’L J. MARINE & COASTAL L. 297, 313 (2008).

99 Id., at 312.

100 UNCLOS, supra note 2, art. 1(1)(5)(b)(ii).

101 Rosemary Rayfuse, Drowning Our Sorrows to Secure a Carbon Free Future? Some

International Legal Considerations Relating to Sequestering Carbon by Fertilizing the Oceans,

31 UNSW L.J. 919, 923 (2008) [hereinafter Rayfuse].

102 UNCLOS, supra note 2, Preamble.

103 Id., art. 1(1)(4).

104 Id., art. 194(3)(a).

105 Supra, S.(II)(A)(ii).

19

ii) Rinnuco has violated its duty to not cause transboundary harm.

Under Article 194 of the UNCLOS, Article 3 of the CBD and customary international law,106

States have an obligation to ensure that activities under their jurisdiction do not cause damage to

other States, including shared natural resources.107 Such damage must be reasonably foreseeable

and significant.108 The harm from Rinnuco’s project was foreseeable [a] and significant [b].

Moreover, Rinnuco failed to fulfill its obligations of due diligence [c].

a. The harm was foreseeable.

The state of knowledge regarding the risks of an activity determines the foreseeability of

harm.109 Rinnuco had conducted an EIA before undertaking its project.110 Accordingly, it had

knowledge of the nature and extent of the risk involved.111 Further, Aeolia had informed Rinnuco

106 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶29

(July 8).

107 UNEP, Environmental Law: Guidelines and Principles on Shared Natural Resources

(Nairobi, 1978).

108 Pulp Mills, supra note 70, at 101.

109 BIRNIE, BOYLE & REDGEWELL, INTERNATIONAL LAW AND THE ENVIRONMENT 153 (2009).

110 Record, ¶12.

111 Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities, 2001 in Report of the International Law Commission on the Work of its Fifty-Third

Session, Report of the Commission to the General Assembly on the work of its fifty-third

session, (Apr. 23-June 1, July 2-Aug. 10, 2001) U.N. Doc. A/CN.4SER.A/2001/Add.1 (Part 2)

(2001), art. 7, 157 [hereinafter ILC Transboundary].

20

of the possible risks of its project before its initiation.112 Moreover, the Muktuk Ocean, where the

project is being conducted, is a shared resource113 and Aeolia and Rinnuco have adjacent

coastlines.114 Thus, the risk of transboundary harm was foreseeable.

b. The harm was significant.

Harm is significant if it is more than detectable, it need not be serious or substantial.115 Large

scale iron fertilization can reduce marine biodiversity, suppress marine productivity by depleting

nutrients and decrease oxygen levels.116 In fact, large scale ocean fertilization projects such as

the one carried out off the coast of Canada, was condemned due to the possible harm to the

marine environment.117 Further, harm to marine life that affects the economic interests of a state

also meets this threshold.118 Aeolia has a large fishing industry and ecotourism sector that

depends on marine life.119 Consequently, any harm to the Muktuk Ocean affects Aeolia’s

economic interests. Additionally, since narwhals are migratory species, threats within Rinnuco’s

112 Record, ¶13.

113 Record ¶17.

114 Clarifications, A31.

115 ILC Transboundary, supra note 111 art. 2, at 152.

116 UNESCO, supra note 32.

117 Karen N Scott, Regulation Ocean Fertilization Under International Law: The Risks, 2013

CCLR 108 (2013); Statement of Concern Regarding Iron Fertilization in Ocean Waters West of

Canada in July 2012, in Report of the 7th mtg. of COP (LC 34/15).

118 BRIAN SMITH, STATE RESPONSIBILITY AND THE MARINE ENVIRONMENT 239 (1988).

119 Record, ¶¶2, 3.

21

jurisdiction have repercussions for the species throughout its entire range.120 Moreover,

Rinnuco’s project can harm the ecosystem of the Muktuk Ocean121 and such harm to the

ecosystem even without any other physical manifestations within the territory of Aeolia,

constitutes significant harm.122 Thus, the risk of transboundary harm was significant in nature.

c. Rinnuco failed to fulfil its obligations of due diligence.

The duty to not cause transboundary harm is one of due diligence requiring States to take

appropriate measures to prevent the risk of significant harm.123 In case of ocean fertilization,

States have accepted only small scale operations, avoiding large scale operations consistently.124

Rinnuco however conducted a large scale ocean fertilization project.125 Moreover, it did not

assess this project as per the commonly accepted Assessment Framework.126 Despite conducting

120 Lyle Glowka, Complementarities between the Convention on Migratory Species and the

Convention on Biological Diversity, 3 J. INT’L WILDLIFE L. & POL’Y 205, 211 (2000).

121 Supra, S.II(A)(ii).

122 Riccardo-Pisillo Mazzeschi, Forms of International Responsibility for Environmental Harm,

in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM 29 (1991).

123 ILC Transboundary, supra note 111, art. 3 at 154; Corfu Channel (U.K. v. Albania), 1949

I.C.J. 19 (Apr. 9).

124 G.A. Res. 66/215, ¶97, U.N. Doc. A/RES/66/215 (Mar. 26, 2012) [hereinafter G.A. Res.

66/215]; UNESCO, supra note 32 at 1.

125 Record, ¶15.

126 Record, ¶18.

22

an EIA, it did not take any preventive measures on the basis of the same.127 Thus, Rinnuco

violated its due diligence obligations.

iii) The right to conduct marine scientific research does not authorize Rinnuco’s project.

Under Article 246 of the UNCLOS, States have the right to conduct marine scientific

research [“MSR”]. However, this right is subject to the rights of other States128 and the

requirements of UNCLOS.129 Accordingly, in the course of MSR, States must avoid activities

that can damage marine habitats.130 Although Rinnuco’s project is being carried out in its EEZ, it

has the potential of causing damage to the entire marine environment of the Muktuk Ocean.131

Further, MSR has to be conducted using appropriate scientific methods,132 which are not

unnecessarily damaging to the marine environment.133 Presently, there are insufficient techniques

to conduct large scale ocean fertilization and reverse its side-effects.134 Moreover, the potential

for ocean fertilization to remove CO2 from the atmosphere is negligible in comparison to actual

127 Record, ¶14.

128 UNCLOS, supra note 2, art. 238.

129 Id., art. 240(b).

130 Anna Maria Hubert, The New Paradox in Marine Scientific Research: Regulating the

Potential Environmental Impacts of Conducting Ocean Science 42 OCEAN DEV. & INT’L L. 329,

339 (2011).

131 Record, ¶13.

132 UNCLOS, supra note 2, art. 240(d).

133 ALFRED H.A. SOONS, MARINE SCIENTIFIC RESEARCH AND THE LAW OF THE SEA 325 (1982).

134 UNESCO supra note 32 at 15.

23

CO2 emissions.135 Thus, the possible side effects of the project outweigh any possible benefits.136

Therefore, the right to conduct MSR does not authorize Rinnuco’s project.

C. RINNUCO HAS VIOLATED ITS OBLIGATIONS UNDER THE CBD.

Under Article 8(c) and (d) of the CBD, States have an obligation to ensure conservation of

biological resources and protection of ecosystems. However, large-scale ocean fertilization can

adversely affect the marine ecosystem.137 Given that the ecosystem around the Arctic Ocean is

especially fragile and vulnerable, this threat is further enhanced.138 Due to the difficulties

involved in assessing the potential risks of ocean fertilization, the COP permits ocean

fertilization only on a small scale.139 An EIA, such as the one by Rinnuco, is considered

inadequate by the COP for assessing ocean fertilization activities.140 While the COP decisions

are advisory, in order to comply with the purpose of the CBD, States must respect these

decisions.141

135 UNESCO supra note 32 at 2.

136 Rayfuse, supra note 101, at 929.

137 CBD Report, supra note 13 at 9.

138 G.A. Res. 66/215, supra note 124 at.

139 IX/16, supra note 15, ¶C4; X/33, supra note 15, ¶(d)(w).

140 Decision XI/20, CBD COP 11th mtg., 5 Dec. 2012, UNEP/CBD/COP/DEC/XI/20, at ¶11.

141 Harald Ginzky, Ocean Fertilization as Climate Change Mitigation Measure - Consideration

under International Law, 7.1 J. FOR EUR. ENVTL. & PLAN. L. 57, 69 (2010).

24

Further, under Article 14 of the CBD, activities that may affect biodiversity are permissible

only when scientifically justified.142 Rinnuco’s project is not scientifically justified as ocean

fertilization is not an effective CO2 mitigation technique.143 Moreover, ocean fertilization is not

recognized as a carbon sink method under the Kyoto Protocol.144 In any case, ocean fertilization

is ideal in high nutrient low chlorophyll [“HNLC”] areas which lack iron.145 Scheflutti is located

in the Arctic Circle146 which is not a HNLC area147 and already has a relatively high

concentration of iron.148 Thus, Rinnuco’s project is not scientifically justified. Hence, Rinnuco

has violated its obligations under Article 14 to minimize adverse impacts on biodiversity.

D. RINNUCO HAS VIOLATED ITS OBLIGATIONS UNDER THE CMS.

142 X/33, supra note 15 at ¶(w).

143 R. Dalton, Ocean Tests Raise Doubts Over Use of Algae as Carbon Sink, 420 NATURE 722

(2002).

144 David Freestone & Rosemary Rayfuse, Iron Ocean Fertilization and International Law, 364

MAR. ECOLOGY PROG. SER., 227, 228 (2008).

145 CONGRESS, supra note 63; UNESCO, supra note 32 at 2.

146 Record, ¶1.

147 A.L. Strong et. al, Ocean Fertilization: Science, Policy and Commerce, 22 OCEANOGRAPHY

MAG. 236, 261 (2009).

148 WALTER TUCKER & DAVID CATE EDS., THE 1994 ARCTIC OCEAN SECTION: THE FIRST MAJOR

SCIENTIFIC CROSSING OF THE ARCTIC OCEAN 27 (1996).

25

Under Article II of the CMS, range States must endeavour to conclude agreements for the

conservation of species listed in Appendix II.149 For this purpose, priority has to be given to

species with an unfavorable conservation status.150 Rinnuco is a range State for narwhals151

which are listed in Appendix II of the CMS152 and are near threatened species with an

unfavorable conservation status.153 While, this provision uses best endeavour terms, Rinnuco

was required to make serious efforts towards concluding agreements for the conservation of

narwhals,154 especially as the activity affecting them was under taken by Rinnuco.155 Thus,

Rinnuco violated its obligations under the CMS.

Further, range States have to take action, wherever possible and appropriate, for the conservation

of migratory species whose conservation status is unfavourable.156 Rinnuco is a developed

country157 and as such had the resources to take measures for conservation. Moreover, due to the

149 CMS, supra note 56, art. II(c).

150 CMS, supra note 56, art. IV(3).

151 Record, ¶8.

152 CMS, supra note 56, Appendix II.

153 IUCN Red List, supra note 38.

154 ANTHONY AUST., MODERN TREATY LAW AND PRACTICE 27 (2010).

155 Supra, S.I(B)(i).

156 CMS, supra note 56, art. II(1).

157 Record, ¶2.

26

potential harm from Rinnuco’s project to narwhals,158 it was appropriate for it to take

conservation measures. Thus, Rinnuco violated its obligations under the CMS.

158 Supra, S.II(A)(ii).

27

CONCLUSION AND PRAYER

In light of the above, the Federal States of Aeolia requests the Honourable Court to adjudge and

declare that:

1. The ICJ has jurisdiction to determine the matter.

2. 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

Agents for the Federal States of Aeolia