INTERNATIONAL COURT OF JUSTICE · Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A No. 2...

INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING

OCEAN FERTILIZATION AND MARINE BIODIVERSITY

THE FEDERAL STATES OF AEOLIA

(APPLICANT)

V.

THE REPUBLIC OF RINNUCO

(RESPONDENT)

----------------------------------------------------

MEMORIAL FOR THE APPLICANT

----------------------------------------------------

2016

i

TABLE OF CONTENTS

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

STATEMENT OF JURISDICTION…………………...……………......…………....………..ix

QUESTIONS PRESENTED………………………………………….………………………....x

STATEMENT OF FACTS……………………………………………………...........................xi

SUMMARY OF ARGUMENTS…………………….………………………...........................xiii

ARGUMENTS…….………………………………...…………………………..…...…………..1

I. THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER………………….….1

A. The ICJ has jurisdiction under Article 27(3) of the CBD………………………………....1

1. The requirements of Article 27(3) of the CBD were satisfied…...….………….....1

a. There existed a disagreement on a point of law or fact between Aeolia and

Rinnuco…………………………..……………………….............................….3

b. Rinnuco’s objection to the Court’s jurisdiction lacks basis………………...….4

B. The ICJ has jurisdiction under Article 287(1) of the UNCLOS…………………………..4

1. Rinnuco’s notice of revocation did not divest the Court of its jurisdiction…….…5

a. The case was already pending before the ICJ prior to the effectivity of Rinnuco’s

written revocation………………………………………………………………5

i. The case was pending before the Court on 23 June 2016……………...6

ii. Rinnuco’s notice of revocation takes effect on 28 June 2016………….6

2. Rinnuco failed to observe good faith and abused its rights under UNCLOS……..7

3. There existed a legal dispute between Aeolia and Rinnuco under UNCLOS…….8

ii

4. The ICJ has jurisdiction to settle disputes arising from the interpretation and

application of international agreements………………………...............................9

5. ICJ’s jurisdiction encompasses all rules of international law not incompatible with

the UNCLOS………………………………….............................................…….11

II. RINNUCO BREACHED ITS TREATY OBLIGATIONS UNDER INTERNATIONAL

LAW…………………………....................................................………………………….…12

A. Non-observance of the Precautionary Principle……………..…………....……...…..12

1. The Precautionary Principle is codified in the CBD……….................................13

2. The elements of the Precautionary Principle are present…………………...…..14

B. Rinnuco failed in its obligation not to cause harm to other states…...……..……….....16

1. Transboundary harm is codified in CBD, UNCLOS and LP………..…………...16

a. Transboundary harm is codified in CBD………..………………………….…16

b. Transboundary harm is codified in UNCLOS……………………………...…16

c. Transboundary harm is codified in LP………………..................................…17

2. The elements of transboundary harm are present…………………………...........17

a. Nexus between the activity and the damage………..........................................17

b. Human causality…………………………………......................................…..18

c. Threshold criterion………………………..…………………………….......…18

d. Transboundary movement of harmful effects………………………………....19

C. Rinnuco failed in its duty to conserve and preserve the marine environment….........19

1. Rinnuco failed to cooperate with Aeolia in the conservation of migratory

species....................................................................................................................19

2. Failure to prevent and reduce marine pollution ……………………………........20

iii

a. Introduction of ferrous sulfate through ocean fertilization is dumping……….20

b. Ocean fertilization pollutes the ocean……..…….........................................….21

3. Rinnuco does not have exclusive rights over shared resources within its EEZ.....22

D. Rinnuco failed to promote Sustainable Development…………………………….....23

1. Non-observance of the intergenerational responsibility….……………..…….....23

2. Violation of Sustainable Development……………….……………………..…....24

E. Rinnuco is responsible for an internationally wrongful act…………………..…..….26

1. The act is attributable to Rinnuco…………………………….……………….…26

2. The act constituted a breach of an international obligation of a state………..…..27

CONCLUSION AND PRAYER FOR RELIEF……………………………….......………….28

iv

INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

1996 Protocol to the Convention 1972, November 07, 1996, 36 I.L.M. 1 (LP)……………...passim

Convention on Biological Diversity, June 16,1992, 1760 U.N.T.S. 79 (CBD) .................... passim

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833

U.N.T.S. 3 (UNCLOS)……………………………………………………………………...passim

U.N DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

1978 UNEP Environmental Law Guidelines and Principles on Shared Natural Resources Principle

1…………………………………………………………………………………………………..23

Commentary on the Articles on State Responsibility, Rep. of the Int’l Law Comm’n,

53rd Sess, UN Doc. A/56/10; GAOR, 56th Sess., Supp. 10 (2001)………………………………26

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

Activities, 2001, in Report of The I.L.C. IN ITS 53RD SESSION, (2001) ....................................15

Convention of Parties 9 Decision IX/16, available at:

https://www.cbd.int/decision/cop/?id=11659......................................................................3, 13, 14

Convention of Parties 10 Decision X/33, available at:

https://www.cbd.int/decision/cop/?id=12299.......................................................................3, 13, 14

Decision of Parties 11 Decision XI/20, available at: https://www.cbd.int/doc/decisions/cop-

11/cop-11-dec-20-en.pdf......................................................................................................3, 13, 14

Responsibility of States for Internationally Wrongful Acts (2002) UN Do. A/RES/58/83/Annex

(State Responsibility)……...……………………………………………………………………26

The International Court of Justice: Handbook……………………………………………………..6

United Nations General Assembly Resolution A/RES/66/288 July, 27 2012...............................23

United Nations, Statute of the International Court of Justice, 18 April 1946, available at:

http://www.refworld.org/docid/3deb4b9c0.html.............................................................................1

JUDICIAL DECISIONS

Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Judgement) (Georgia v. Russia)(cited as “Application Elimination of All Forms

Racial Discrimination Case”) [2011] ICJ Report……………………………………………..8, 9

https://www.cbd.int/decision/cop/?id=11659......................................................................3

http://www.refworld.org/docid/3deb4b9c0.html.............................................................................1

v

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Judgment)

(cited as “Arrest Warrant Case”)[2002]........................................................................................2

Certain Property Case (Lichtenstein v. Germany) [2005] ICJ Rep 6, ICGJ 18 (cites as “Certain

Property Case”) ..........................................................................................................................2, 4

Corfu Channel Case (UK v. Albania) [1949] (Judgment) ICJ Rep 4 (cited as “Corfu Channel

Case”)............................................................................................................................................23

Gabcikovo-Nagymaros Case (Hungary v. Slovakia), [1997] ICJ Reports 78 (cited as “Gabcikovo-

Nagymaros Case”)....…………………………………………………………………..24, 25, 27

Intepretation of Peace Treaties with Bulgaria, Hungary and Romania ( Advisory Opinion) [1950]

ICJ Rep 221 (cited as “Interpretation of Peace Treaties Case”) ................................................2,8

Land and Maritime Boundary Case (Cameroon v. Nigeria: Equatorial Guinea intervening),

Preliminary Objections, (Judgment) [1998] ICJ. Rep (cited as “Land and Maritime Boundary

Case”)..............................................................................................................................................9

Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Reports 226…………………….23

Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A No. 2 (cited as “Mavrommatis

Case”)..............................................................................................................................................2

Nuclear Tests Case (Australia v. France) (Judgment) [1974] I.C.J. Rep 253 (cited as “Nuclear

Tests Case”) ..................................................................................................................................23

Question of Interpretation and Application of the 1971 Montreal Convention arising from the

Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Judgement) [1998]

Z.C.J. Rep( cited as “Libyan Arab Jamahiriya v. UK Case”) .......................................................2

Questions of lnterpretation and Application of the 1971 Montreal Convention arising from the

Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary

Objections, (Judgment) I.C.J. Reports [1998] (cited as “Libyan Arab Jamahiriya v. USA

Case”)..............................................................................................................................................2

Shrimp Turtle Case (India, Malaysia & Pakistan v. United States), [1999] 38 ILM 121 (cited as

“Shrimp/Turtle Case”)................................................................................................................24

South West Africa Case (Cameroon v. Nigeria: Equatorial Guinea Intervining) Preliminary

Objections (Judgement) [1962] ICJ Rep 328 (cited as “South West Africa Case”)........................8

The MOX Plant Case: The Questions of Supplemental Jurisdiction for International Environmental

Claims (Ireland vs. United Kingdom) ICGJ 343 [2001] (cited as “Mox Plant

Case”)............................................................................................................................................11

Trail Smelter Arbitration (U.S. v. Canada) 1938/1941, R.I.A.A. 1905 (cited as “Trail Smelter

Case”)............................................................................................................................................17

United Mine Workers of America v Gibbs (1966) 383 US 715…………………………………..12

vi

United States Diplomatic and Consular Staff in Tehran (United States v. Iran) (Judgment) [1980]

I.C.J. (cited as "United States Diplomatic and Consular Staff in Tehran Case") ...................26

BOOKS AND TREATISES

Best, R. and Fisher, H. D.. Seasonal breeding of the Narwhal (Monodon monoceros L.) Canadian

J. Tool…………………………………………………………………………………………….18

Boczek, Boleslaw Adam. International Law: A Dictionary………………………………………..8

Brownlie, Ian. Principles of Public International Law (2008)………...………………………….27

Burke, W.T.. The International Law of Fisheries: UNCLOS and Beyond.....................................20

D’Amato, Anthony. “Good Faith in Encyclopedia of Public International Law” (1992)…...……8

Eiriksson, Gudmunder. The International Tribunal for the Law of the Sea (2000)……...………..11

International Law Association’s New Delhi Declaration of Principles of International Law

Relating to Sustainable Development (2002)…………………………………………………….24

Freestone, David. The Road from Rio: International Environmental Law After the Earth Summit

(1994) ............................................................................................................................................12

Hazard Jr., Goffrey C. et al. Pleading and Procedure, State and Federal Cases and Materials (8th

ed., 1999)…………………………………………………………………………………………12

Hanqin, Xue. Transboundary Damage in International Law, Cambridge Studies in International

and Comparative Law (2003)………………………………………………………………...17, 18

Koh, Tommy T.B.. A Constitution for the Oceans in the Law of the Sea (1983)………………..11

Sands, Philippe. Principles of International Environmental Law (2003)................................passim

Schachter, Oscar. International Law in Theory and Practice (1991)…...…………………………18

Shadbolt, Tanya, et.al. Breaking the Ice: International Trade in Narwhals, in the Context of a

Changing Arctic………………………………………………………………………………….18

Webersik, Christian, Climate Change and Security: A Gathering Storm of Global Challenges

(2010) ............................................................................................................................................21

vii

ESSAYS, ARTICLES, AND JOURNALS

Allsopp, Michelle, Santillo, David & Johnston, Paul. A Scientific Critique of Ocean Iron

Fertilization as a Climate Change Mitigation Strategy, GRL TN 07

2007...............................................................................................................................................12

Canadian Council of Ministers of the Environment. 1999. Canadian water quality guidelines for

the protection of aquatic life: Dissolved oxygen (marine). In: Canadian environmental quality

guidelines, 1999, Canadian Council of Ministers of the Environment,

Winnipeg...................................................................................................................................21,22

Coale, K. Open Fertilization for Scientific Study and Caron Sequestration. Adapted from

Encyclopedia of Ocean Sciences..............................................................................................15, 21

R.S. Lampitt et al., Ocean Fertilization: A Potential Means of Geoengineering? 366 Phil.

Transactions Royal Soc’y A 3919, 3922, 3935 (2008)…………………………………………15

Sachs, Noah M. Rescuing The Strong Precautionary Principle from Its Critics, U. I11.L Rev 1285

(2011).............................................................................................................................................12

Secretariat of the Convention on Biological Diversity (2009). Scientific Synthesis of the Impacts

of Ocean Fertilization on Marine Biodiversity. Montreal, Technical Series No.

45..............................................................................................................................................14, 23

Wallace, Doug. Intergovernmental Oceanographic Comm’n, U.N. Educ, Scientific & Cultural

Org. [UNESCO] Ocean Fertilization: A Scientific Summary for Policy Makers, 11, U.N. Doc

IOC/BRO/2010/2.....................................................................................................................15, 21

Weiss, E. Brown, Our Rights and Obligations to Future Generations for the Environment, at 199

(84 AJIL 198 1990) .......................................................................................................................23

Wilson, Grant. Murky Waters: Ambiguous International Law for Ocean Fertilization and Ocean

Fertilization and other Geoengineering, at 521-522 (Texas International Law Journal 2014)

..................................................................................................................................................23, 24

Volbeda, M. Bruce. The MOX Plant Case: The Question of “Supplemental Jurisdiction” for

International Environmental Claims Under UNCLOS...................................................................11

MISCELLANEOUS

Danigelis, Alyssa. Geoengineering Nut Dumps Tons of Iron Into Ocean, Discovery News (Oct 16,

2012, 7:53 PM), http://news.discovery.com/earth/geoengineering-nutball-dumps-tons-of-iron-

into- pacific-121016.html; see generally Charles G. Trick et al., Iron Enrichment Stimulates Toxic

Diatom Production in High-Nitrate, Low-Chlorophyll Areas, 107 Proceedings Nat’l Acad. Sci.

5887 (2010)....................................................................................................................................15

viii

Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural

Resource Management. As approved by the 67th meeting of the IUCN Council, 14-16 May 2007.

Available at: http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf..............................14

Keller, James & Drews, Keven. Iron Sulfate Haida Gwaii Dump Defended, Huffington Post (Oct.

19, 2012, 8:19 PM), www.huffingtonpost.ca/2012/10/19/iron-sulfate-haida-gwaii-dump-

defended_n_ 1984574.html............................................................................................................15

Wendy Watson-Wright et al., Climate Change and Geoengineering: Ocean Fertilization

Practicalities, Opportunities and Threats, IISD (Feb. 4, 2013). Available at: http://climate-

l.iisd.org/guest-articles/climate- change- and- geoengineering- ocean- fertilization- practicalities

opportunities-and-threats...............................................................................................................14

ix

STATEMENT OF JURISDICTION

On 4 April 2016, the Federal States of Aeolia submitted the present case by written

Application instituting proceedings against the Republic of Rinnuco pursuant to Article 40(1) of

this Court’s statute, wherein a state may bring a case before the Court by written Application. In

accordance with Article 36(1) of the ICJ Statute, the jurisdiction of the Court comprises all which

the parties refer to it and all matters specially provided for in the Charter of the United Nations

(UN) or in treaties and conventions in force. On 10 May 2016, the Republic of Rinnuco submitted

a Preliminary Objection contesting the ICJ’s jurisdiction over the matter. On 23 June 2016, the

Registrar of the Court (Registrar) notified both parties that the case had been entered as 2016

General List No. 170.

x

QUESTIONS PRESENTED

I. WHETHER THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER.

II. WHETHER 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.

xi

STATEMENT OF FACTS

The Federal States of Aeolia (Aeolia) and the Republic of Rinnuco (Rinnuco) are

neighboring coastal states located on Scheflutti, a continent that is completely surrounded by the

Muktuk Ocean (R.1). Both states have large fishing industries (R.2) and Aeolia’s ecotourism

industry includes whale-watching and excursions that focus on Narwhals (R.3).

On 21 November 2014, following an environmental impact assessment, Rinnuco

announced its intention to engage in ocean fertilization (R.12). The purposes were 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 its emission

reduction targets or commitments; and (4) stimulate fish production (R.12). The project was to

proceed in phases over the course of several years. The initial phase involved adding 15,000 kg.

of ferrous sulfate powder to a 2,000 km2 area located 150-200 miles off Rinnuco’s coast within its

exclusive economic zone (EEZ) (R.15).

On 2 December 2014, Rinnuco notified Aeolia regarding the intended project (R.13).

Aeolia then expressed its concern over the negative impact of ocean fertilization on the Narwhals

and the Muktuk Ocean (R.13).

On 5 January 2015, Rinnuco’s research vessel, Stanlee, began depositing ferrous sulfate

within Rinnuco’s EEZ (R.16).

On 6 January 2015, Aeolia sent a diplomatic note to Rinnuco and alleged that it had

violated international law by conducting its ocean fertilization project. Aeolia emphasized that the

Muktuk Ocean was a shared resource and that Rinnuco had the duty to protect and conserve it.

xii

Aeolia urged Rinnuco to suspend or terminate its ocean fertilization project immediately and

requested for a discussion on the matter (R.17).

On 22 January 2015, Rinnuco denied committing any violation of international law but

agreed to suspend the project after the initial phase (R.18) which was completed on 13 February

2015 (R.19).

On 21 March 2016, after failure of negotiations and mediation, Aeolia requested Rinnuco

to agree to submit the matter to the ICJ (R.22). However, on 28 March 2016, Rinnuco deposited a

notice of revocation of its written declaration pursuant to Article 287 of UNCLOS stating that it

would not submit disputes concerning the interpretation or application of UNCLOS to the ICJ

(R.9). Thereafter, on 4 April 2016, Aeolia submitted an Application to the Court instituting

proceedings against Rinnuco.

On 22 April 2016, nine dead Narwhals were found off the coast of Rinnuco. Researchers

from Aeolia’s Nautilus Research Institute conducted necropsies, the results, however, were

inconclusive as to the cause of death (R.20).

On 4 May 2016, Aeolia reiterated Rinnuco’s violation of international law and maintained

that the ocean fertilization contributed to the death of nine Narwhals and warned that the project

could have other devastating effects on the delicate marine environment around the Muktuk Ocean

(R.20).

Finally, on 10 May 2016, Rinnuco submitted a Preliminary Objection contesting the ICJ’s

jurisdiction (R.23) and suspended its ocean fertilization project until the Court can consider the

matter (R.24).

xiii

SUMMARY OF ARGUMENTS

By the express declaration of the parties recognizing the jurisdiction of the ICJ in the

settlement of any dispute arising from the interpretation or application of the provisions of CBD

and UNCLOS, the Court has jurisdiction over the case. There exists a legal dispute between Aeolia

and Rinnuco concerning the latter’s non-compliance with its treaty obligations, its failure to pursue

in good faith and to bring into conclusion negotiations regarding its ocean fertilization project.

By conducting the initial phase of its ocean fertilization project, Rinnuco breached its legal

obligations to observe the Precautionary Principle and to conserve biodiversity for future

generations as provided under the CBD. Rinucco likewise neglected to conserve and manage

marine living resources, failed to reduce marine pollution and not cause damage to other states as

mandated by the UNCLOS. Furthermore, Rinnuco’s act of conducting its ocean fertilization

project was in violation of the London Protocol.

1

ARGUMENTS

I. THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER.

Article 36(1) of the ICJ Statute provides 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 (UN) or in treaties and conventions in force. Aeolia’s Application

invoking the ICJ’s jurisdiction is made pursuant to the provisions of the CBD and the

UNCLOS.1

A. The ICJ has jurisdiction under Article 27(3) of the CBD.

Article 27(3) provides that for a dispute not resolved by negotiation or mediation,

it accepts one or both means of dispute settlement as compulsory: one, arbitration and two,

submission of the dispute to the ICJ.2

In view thereof, both Aeolia and Rinnuco declared in writing that they would

submit to the jurisdiction of the ICJ whenever a dispute should arise concerning the

interpretation or application of the CBD.3

1. The requirements of Article 27(3) of the CBD were satisfied.

The Court acquires jurisdiction upon fulfillment of three requirements:

first, the failure to resolve any dispute by negotiation or mediation by third person;

second, the applicant must be a contracting party to the CBD; and third, there must

1 CBD of 5 June 1992; UNCLOS of 10 December 1982.

2 Article 27(3), CBD.

3 Record, ¶6.

2

be a dispute arising out of the interpretation or application of the CBD. Moreover,

in the decided cases,4 these requirements must be met as of the date of the filing of

the Application, which date determines when the Court acquires jurisdiction.

First, from January 2015 through March 2016, Aeolia and Rinnuco failed

to resolve the dispute regarding the ocean fertilization project through negotiations

and mediation.5

Second, both states are parties to the CBD and signed in the first year in

which the convention was opened for signature.6 Neither of the two parties made

any withdrawals from the Convention.

Third, there existed between Aeolia and Rinnuco a dispute arising out of the

interpretation or application of the CBD. The Permanent Court of International

Justice (PCIJ) defined the term dispute as a disagreement on a point of law or fact,

a conflict of legal views or of interests between two persons.7 Moreover, in the

Interpretation of Peace Treaties case,8 the ICJ defined dispute as a situation in

which the two sides held clearly opposite views concerning the question of the

performance or non-performance of certain treaty obligations.

4 Arrest Warrant Case, ¶26; Libyan Arab Jamahiriya v. UK Case, at 23-24, ¶38; Libyan Arab

Jamahiriya v USA, at 129, ¶37.

5 Record, ¶22.

6 Id. ¶6.

7 Mavrommatis Case, at 11.

8 Interpretation of the Peace Treaties Case, at 67, 74.

3

a. There existed a disagreement on a point of law or fact between

Aeolia and Rinnuco.

The disagreement stemmed from Rinnuco’s ocean fertilization

project in the Muktuk Ocean. In Aeolia’s diplomatic note to Rinnuco, it

stressed that the project could be disastrous for the marine environment

and could upset the entire food web and negatively impact marine

biodiversity.9 Aeolia urged Rinnuco to act in accordance with the

Precautionary Principle and to abandon its ocean fertilization project.

Aeolia emphasized that ocean fertilization violated Articles 3 and 8

which recognize the responsibility of the state not to cause damage to

the environment of other states as well as its duty to promote and protect

the marine ecosystem.10 Rinnuco’s project likewise violated the CBD

decisions11 which emphasized the duty of states to act in accordance

with the Precautionary Principle.

Rinnuco, on the other hand, denied the allegations of Aeolia12

and proceeded with the initial phase of its ocean fertilization project.13

In the Certain Property case judgment, the Court found that the

complaints of fact and law formulated by Liechtenstein against

9 Record, ¶13.

10 Article 3 and 8, CBD.

11 COP CBD decision IX/16 ¶¶3, 4; X/33 ¶8; XI/20 ¶¶7, 8.

12 Record, ¶14.

13 Id. ¶14.

4

Germany which were denied by the latter concluded that by virtue of

the denial, there is a legal dispute between the states.14

b. Rinnuco’s objection to the Court’s jurisdiction lacks basis.

Rinnuco had made no reservation to limit the scope of Article

27 in the settlement of disputes arising out of the interpretation and

application of the CBD.

As the Court clarified, the mere denial of the existence of a

dispute does not prove its non-existence. In a situation wherein two

sides hold clearly opposite views concerning the question of

performance or non-performance of certain treaty obligations, the Court

must conclude that international disputes have arisen.15

B. The ICJ has jurisdiction under Article 287(1) of the UNCLOS.

Article 287(1) provides that when signing, ratifying or acceding to the Convention

or at any time thereafter, a state shall be free to choose, by means of a written declaration,

one or more means for the settlement of disputes concerning the interpretation or

application of the Convention.16

14 Certain Property Case, at 18, ¶23.

15 Supra note 8, at 74-75.

16 Article 287(1), UNCLOS.

5

Aeolia and Rinnuco have expressly chosen the ICJ by means of written declarations

pursuant to Article 287 and accepted the jurisdiction of the Court for the settlement of

disputes concerning the interpretation or application of the UNCLOS.17

1. Rinnuco’s notice of revocation did not divest the Court of its jurisdiction.

Article 287(6) and (7) emphasizes two important points for the validity and

effectivity of the written revocation. First, the written revocation will take effect

only three months after the notice had been deposited with the Secretary General

of the UN. Second, the notice of revocation will not affect proceedings pending

before a Court or tribunal having jurisdiction, unless otherwise agreed by the

parties.18

a. The case was already pending before the ICJ prior to the effectivity

of Rinnuco’s written revocation.

Aeolia’s Application instituting proceedings against Rinnuco

was acknowledged by the Registrar on 23 June 2016.19 Upon the other

hand, the effectivity of Rinnuco’s revocation was to take effect only on

28 June 2016. Moreover, pursuant to Article 287(7) of the UNCLOS,

the notice of revocation will not affect proceedings pending before a

Court having jurisdiction, unless otherwise agreed to by the parties.

17 Record ¶9.

18 Article 287(6)(7), UNCLOS.

19 Record at 2.

6

There was no agreement between Aeolia and Rinnuco to terminate or

withdraw the proceedings before the ICJ.

i. The case was pending before the Court on 23 June 2016.

The ICJ Handbook provides that proceedings may be

instituted by means of a unilateral Application submitted by an

applicant state against a respondent state. It further provides that

the date of receipt by the Registry of the Application marks the

opening of proceedings before the Court.20

On 4 April 2016, Aeolia filed an Application instituting

proceedings against Rinnuco.21 Thereafter, on 23 June 2016, the

Registrar acknowledged its receipt and informed both parties that

the Case of Questions Relating to Ocean Fertilization and Marine

Biodiversity was entered as 2016 General List No. 170.22

ii. Rinnuco’s notice of revocation takes effect on 28 June 2016.

On 28 March 2016, Rinnuco deposited a notice of revocation

of its written declaration pursuant to Article 287.23 The notice

stated that Rinnuco would not submit disputes concerning the

interpretation or application of the UNCLOS.24 Appyling Article

20 The ICJ: Handbook, at 49-50.

21 Record, Annex B.

22 Id. at 2.

23 Record, ¶9.

24 Id.

7

287(6), the notice of revocation will not take effect until three

months after notification or on 28 June 2016.

2. Rinnuco failed to observe good faith and abused its rights under UNCLOS.

Article 300 provides that states parties shall fulfill in good faith the

obligations assumed under the Convention and shall exercise the rights, jurisdiction

and freedoms recognised in the Convention in a manner which would not constitute

an abuse of right.25

First, Rinnuco’s revocation constituted bad faith. Aeolia’s referral of the

dispute to the Court was premised on Article 286 which provides that subject to

Section 3, when a dispute concerning the interpretation and application of the

Convention is not settled by peaceful means, it shall be submitted at the request of

any party to the Court having jurisdiction under Section 2 of the UNCLOS.26

Negotiations and mediation between the states failed. Hence, the dispute must then

be submitted for resolution before the ICJ based on their written declaration under

Article 287. On 21 March 2016,27 Aeolia requested to submit the dispute before the

Court and seven days later or on 28 March 2016, Rinnuco invoked its written

revocation and contended that the ICJ has no jurisdiction over the matter.

Second, Rinnuco’s exercise of its rights under Article 287 constitutes an

abuse of rights. The doctrine of abuse of rights emanates from the premise that even

when undertaking acts that are not prohibited by international law, states ought to

25 Article 300, UNCLOS.


27 Clarifications, A13.

8

avoid acting in an arbitrary manner and exercise their rights with reasonable regard

to the interests of other states.28 While right to revoke is recognized under the

Convention, Rinnuco’s act in revoking its consent is arbitrary and without regard

to the interests of Aeolia.

Abuse of rights is further illustrated in the Trail Smelter Arbitration case

wherein the legitimate activities of Canada resulted in transborder pollution

affecting the United States.29 A state may not exercise its international rights for

the sole purpose of causing injury nor fictitiously to mask an illegal act or to evade

an obligation.30 Should the question regarding the legality of the ocean fertilization

project remain pending, its continuation shall pollute the Muktuk Ocean and cause

harm to Aeolia.

3. There existed a legal dispute between Aeolia and Rinnuco under UNCLOS.

The ICJ emphasized that the expression positive opposition must not be

taken literally.31 Whether there is a dispute in a given case was a matter for objective

determination by the Court.32 It must be shown that the claim of one party was

positively opposed by the other.33 The Court’s determination must turn to an

examination of the facts. The matter is one of substance, not of form.34 The Court

28 International Law: A Dictionary by Boleslaw Adam Boczek, at 37.

29 Id. at 28.

30 Antony D’Amato, “Good Faith in Encyclopedia of Public International Law” (1992), at 600.

31 Application Elimination of All Forms Racial Discrimination Case, at 16, ¶30.

32 Supra note 8, at 74.

33 South West Africa Case, at 328.

34 Supra note 31, at 84.

9

has recognized that the existence of a dispute may be inferred from the failure of a

state to respond to a claim in circumstances where a response is called for.35 While

the existence of a dispute and the undertaking of negotiations are distinct as a matter

of principle, negotiations may help demonstrate the existence of a dispute and

delineate its subject-matter.36

The legal dispute under UNCLOS arose from Rinnuco’s implementation of

its ocean fertilization project which caused the death of the Narwhals. Particularly,

Rinnuco violated Articles 64, 65, 192, 195 and 210 which encompass ocean

dumping, the conservation of the marine environment, and the protection of the

Monodontidae family, which include Narwhals and other cetaceans. Aeolia

strongly opposed the project and stated that any re-initiation was a violation of

UNCLOS.

4. The ICJ has jurisdiction to settle disputes arising from the interpretation

and application of international agreements.

Article 288(2) provides that the Court or tribunal referred to in Article 287

shall also have jurisdiction over any dispute concerning the interpretation or

application of an international agreement related to the purposes of the UNCLOS,

which is submitted to it in accordance with the agreement.37 Four requirements38

must be satisfied: first, the parties must have chosen a procedure of dispute

35 Land and Maritime Boundary Case, at 315, ¶89.

36 Supra note, 31.


38 Id. at 36.

10

settlement under Article 287; second, the international agreement must be related

to the purposes of the Convention; third, the non-UNCLOS agreement expressly

conferred jurisdiction upon UNCLOS tribunals; and fourth, there was a dispute in

the interpretation or application of an international agreement.

First, by express stipulation of the parties, both states chose the ICJ as a

means for the settlement of disputes concerning the interpretation or application of

international treaty obligations.39

Second, both the preamble of the UNCLOS40 and the London Protocol

(LP)41 express the need to protect the marine environment and to promote the

sustainable use and conservation of marine resources. Furthermore, there is

similarity of legal obligations set forth in both Article 195 of the UNCLOS which

emphasizes the duty not to transfer damage or hazards or transform one type of

pollution into another42 and Article 3(3) of the LP which calls on the duty of

contracting parties not to transfer, directly or indirectly, damage or likelihood of

damage from one part of the environment to another or transform one type of

pollution into another.43

Third, there was an express reference to the UNCLOS tribunal in matters of

dispute settlement in the LP. Article 16(3) provides that, “In the event an agreement

to use one of the procedures listed in paragraph 1 of Article 287 of the UNCLOS is

39 Record ¶7.

40 Preamble (4), UNCLOS.

41 Preamble (1), LP.


43 Article 3(3), LP.

11

reached, the provisions set forth in Part XV of that Convention that are related to

the chosen procedure would also apply, mutatis mutandis.”44

Fourth, there existed a dispute arising from the interpretation and

application of LP. Rinnuco admitted that the matter of ocean fertilization arose

primarily under the LP and its Resolutions but contended that it had withheld its

consent to the Court’s jurisdiction under Article 16. Aeolia alleged that Rinnuco

had violated Article 3.3 on transboundary harm and Article 4 on dumping of wastes.

5. ICJ’s jurisdiction encompasses all rules of international law not

incompatible with the UNCLOS.

Article 293(1) provides that a court or tribunal having jurisdiction under this

section shall apply the Convention and other rules of international law not

incompatible with the Convention. UNCLOS represents a multinational

undertaking that remains to be the most complex and all-encompassing treaty in the

history of the UN.45 It is famously characterized as a constitution for the oceans.46

The UNCLOS assumes an integrating function, allowing and encouraging

Tribunals to implement a wider body of law than those contained strictly within the

four corners of the Convention’s articles.47 Thus, supplemental jurisdiction is


45 Gudmunder Eiriksson, The International Tribunal for the Law of the Sea at 145-47 (Kluwer Law

Intl., The Hague, 2000).

46 Tommy T.B. Koh, A Constitution for the Oceans, in The Law of the Sea, xxxiii (U.N. Pub. Sales

No. E.83.V.5, 1983).

47 The MOX Plant Case: The Question of “Supplemental Jurisdiction” for International

Environmental Claims Under UNCLOS by M. Bruce Volbeda, at 226.

12

recognized and permits the hearing of several related claims together in a single

forum, thereby avoiding the inefficiency of a myriad of claims in multiple fora.48

II. RINNUCO BREACHED ITS TREATY OBLIGATIONS UNDER

INTERNATIONAL LAW.

A. Non-observance of the Precautionary Principle.

The Precautionary Principle is a tool for decision-making in a situation of

scientific uncertainty49 and places a default hold on certain activities that may pose

serious risks. The principle establishes a stop and think mechanism under which the

risk creator bears the burden both to quantify the risk and to disclose relevant risk data

to regulators.50

The act of Rinnuco in proceeding with the initial phase of its ocean fertilization

project is non-observance of the Precautionary Principle. The principle calls for

Rinnuco to postpone the project since the introduction of artificial substances such as

ferrous sulfate into the ocean causes the depletion of other essential nutrients used up

by the phytoplankton population. This would adversely affect biological productivity

and change the structure of the marine food web. 51

48 Gibbs, 383 U.S. at 725-26; see also Goffrey C. Hazard, Jr. et al., Pleading and Procedure, State

and Federal Cases and Materials at 423 (8th ed., 1999).

49 Freestone, The Road from Rio: International Environmental Law After the Earth Summit, 6 JEL

at 211(1994).

50 Noah M. Sachs., Rescuing The Strong Precautionary Principle From Its Critics, U.Ill.L.Rev 1285 (2011).

51 Michelle Allsopp, David Santillo & Paul Johnston, A Scientific Critique of Ocean Iron

Fertilization as a Climate Change Mitigation Strategy, GRL TN 07 2007. 1, 11 (2007).

13

1. The Precautionary Principle is codified in the CBD.

The CBD’s Preamble provides that where there is a threat of significant

reduction or loss of biological diversity, lack of full scientific certainty should not

be used as a reason for postponing measures to avoid or minimize such a threat.52

This definition is an embodiment of the Precautionary Principle.53

First, CBD decision IX/16 requests parties to act in accordance with the

precautionary approach and to ensure that ocean fertilization activities do not take

place until there is adequate scientific basis on which to justify the activities.54

Second, CBD decision X/33 provides that no climate change related

geoengineering activity that may affect biodiversity take place until there is

adequate scientific basis on which to justify such activities.55

Furthermore, CBD decision XI/20 notes and reaffirms the need for the

precautionary approach for geoengineering activities that have a potential to cause

significant and adverse transboundary effects.56

52 Preamble (9), CBD.

53 Philippe Sands, Principles of International Environmental Law, at 270 (2nd ed. 2003).

54 Supra note 11.

55 Id.

56 Id.

14

2. The elements of the Precautionary Principle are present.57

First, there is uncertainty as to the ocean fertilization project’s risks. CBD

decisions58 recognize the absence of reliable data covering all relevant aspects of

ocean fertilization and the potential risk of harm it may produce. The eleven59 major

ocean iron fertilization (OIF) projects also express the lack of data as to whether

the projects are safe. The process of ocean fertilization intends to change and

interfere with the natural processes of nature thereby bearing the likelihood of an

adverse outcome on marine biodiversity.60 Furthermore, studies suggest that ocean

fertilization poses unknown risks to biogeochemical cycles of nutrients which may

be harmful to marine animals and plant life.61

Second, the threat of harm is present. The Precautionary Principle cautions

against activities that may cause harm or damage. The excessive dumping of ferrous

sulfate into the ocean causes an abnormal rapid growth of phytoplankton that

collect carbon dioxide from the atmosphere and changes the natural chemistry of

sea water. This harmful effect is known as ocean acidification and is harmful to

57 Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural

Resource Management .As approved by the 67th meeting of the IUCN Council, 14-16 May

2007. Available at: http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf.

58 Supra note 11.

59 Secretariat of the Convention on Biological Diversity (2009). Scientific Synthesis of the Impacts

of Ocean Fertilization on Marine Biodiversity. Montreal, Technical Series No. 45, at 46 &

50.

60 Supra note 58.

61 Wendy Watson-Wright et al., Climate Change and Geoengineering: Ocean Fertilization

Practicalities, Opportunities and Threats, IISD (Feb. 4, 2013). Available at: http://climate-

l.iisd.org/guest-articles/climate- change-and-geoengineering-ocean-fertilization-

practicalities-opportunities-and-threats.

15

marine corals, plants and animals. Furthermore, ferrous sulfate alters the ratio of

ocean nutrients which may contribute to the expansion of harmful algal blooms.62

Finally, the threat of harm is serious and irreversible in nature. Present

global warming is attributed to the accumulation of greenhouse gases (GHG) such

as carbon dioxide, nitrous oxide and methane. Ocean fertilization causes an increase

in GHG produced from higher levels of nitrous oxide, about 320 times more potent

than carbon dioxide and methane, thereby hastening climate change.63 It further

causes the phytoplankton to release a deadly poison 64 and excessive artificial

ferrous sulfate can spur a type of algal bloom which may cause illness and even

death in humans and marine life.65 These effects contribute to risks of serious

damage to the surrounding environment.66

62 Coale, K. Open Ocean Fertilization for Scientific Study and Carbon Sequestration. Adapted from

Encyclopedia of Ocean Sciences (Eds. Steele, Yentch and Turekian).

63 Doug Wallace, Intergovernmental Oceanographic Comm’n, U.N. Educ., Scientific & Cultural

Org. [UNESCO], Ocean Fertilization: A Scientific Summary for Policy Makers, at 11,

U.N. Doc. IOC/BRO/2010/2 (2010).

64 Alyssa Danigelis, Geoengineering Nut Dumps Tons of Iron Into Ocean, Discovery News (Oct

16, 2012, 7:53 PM), http://news.discovery.com/earth/geoengineering-nutball-dumps-tons-

of-iron-into- pacific-121016.html; see generally Charles G. Trick et al., Iron Enrichment

Stimulates Toxic Diatom Production in High-Nitrate, Low-Chlorophyll Areas, 107

Proceedings Nat’l. Acad. Sci. 5887 (2010).

65 R.S. Lampitt et al., Ocean Fertilization: A Potential Means of Geoengineering? 366 Phil.

Transactions Royal Soc’y A 3919, 3922, 3935 (2008).

66 James Keller & Keven Drews, Iron Sulfate Haida Gwaii Dump Defended, Huffington Post (Oct.

19, 2012, 8:19 PM), www.huffingtonpost.ca/2012/10/19/iron-sulfate-haida-gwaii-dump-

defended_n_ 1984574.html.

16

B. Rinnuco failed in its obligation not to cause harm to other states.

1. Transboundary harm is codified in CBD, UNCLOS and LP.

Transboundary harm is defined as the harm caused in the territory of or in

other places under the jurisdiction or control of a state other than the state of origin,

whether or not the states concerned share a common border.67

a. Transboundary harm is codified in CBD.

The Draft Articles on Transboundary Harm’s definition of the

principle is substantially similar to Article 3 of the CBD which stipulates

that states have, in accordance with the Charter of the UN and the

principles of international law, the sovereign right to exploit their own

resources pursuant to their 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 to areas beyond the limits

of national jurisdiction.

b. Transboundary harm is codified in UNCLOS.

The UNCLOS provides that in taking measures to prevent,

reduce and control pollution of the marine environment, states shall act

as not to transfer, directly or indirectly, damage or hazards from one

area to another or transform one type of pollution into another.68

67 Article 2, Draft Articles on Transboundary Harm.


17

c. Transboundary harm is codified in LP.

The LP contains a provision analogous to that of the CBD and

UNCLOS codifying the principle of transboundary harm. One of the

general obligations of contracting parties in implementing the LP is not

to act in a way as to transfer, directly or indirectly, damage or likelihood

of damage from one part of the environment to another or transform one

type of pollution into another.69

2. The elements of transboundary harm are present.

Four requisites must concur for transboundary harm to be caused, as

discussed below.70

a. Nexus between the activity and the damage.

There should be a physical linkage between the activity in

question and the damage caused by it. The activities in one state must

directly give rise to harm in a neighboring state or states.71 Before

Rinnuco implemented the first phase of its ocean fertilization project and

after its suspension, there were no recorded deaths of Narwhals in the

Muktuk Ocean.72

69 Article 3.3, LP.

70 Trail Smelter Arbitration Case (USA versus Canada).

71 Xue Hanqin, Transboundary Damage in International Law, at 5.

72 Clarifications, A27.

18

b. Human causality.

Transboundary damage should have some reasonably proximate

causal relation to human conduct.73 The death of the Narwhals was

caused by the dumping of 15,000 kg. of ferrous sulfate powder, an

artificial and unnatural substance, into the Muktuk Ocean.

c. Threshold criterion.

The threshold criterion presupposes that the damage caused

should be at least greater than mere nuisance or insignificant harm

which is normally tolerated.74

Ocean fertilization is the process of introducing man-made

nutrients in enormous quantities into the ocean. Narwhals are near

threatened species as assessed by the IUCN Red List of Threatened

Species.75 There are only approximately eighty thousand narwhals

existing today.76 Narwhals are seasonal breeders and gestation involves

only a single calf.77 Therefore, the loss of nine Narwhals greatly affects

the species’ population.

73 Schachter, International Law, at 366; Id. at 6.

74 Supra note 70 at 8.

75 Tanya Shadbolt et.al., Breaking the Ice: International Trade in Narwhals, in the Context of a

Changing Arctic, at 1.

76 Id.

77 Best, R. and H.D. Fisher, Seasonal breeding of the narwhal (Monodon monoceros L.) Canadian

J. Tool, at 429-431.

19

Ocean fertilization causes the proliferation of harmful algal

blooms which may lead to oxygen deficiency in the Muktuk Ocean.

d. Transboundary movement of harmful effects.

The Muktuk Ocean is a shared resource of both Aeolia and

Rinnuco. The ocean fertilization project, although conducted within

Rinnuco’s EEZ, causes prejudice and damage to Aeolia’s ecotourism

and fishing industry.

C. Rinnuco failed in its duty to conserve and preserve the marine environment.

The UNCLOS requires states to follow two main environmental objectives: first,

to conserve and manage marine living resources and second, to prevent, reduce and control

marine pollution.78

The LP further requires parties to: first, protect and preserve the marine

environment from all sources of pollution and second, take measures to prevent, reduce

and eliminate pollution caused by dumping at sea of waste or other matter.79

1. Rinnuco failed to cooperate with Aeolia in the conservation of migratory

species.

Article 64 of UNCLOS provides that coastal states shall cooperate to ensure

conservation of migratory species both within and beyond the EEZ. Cooperation

does not only mean that states exchange views, but also concrete suggestions on

78 Supra note 53 at 396; UNCLOS, Preamble.

79 Article 2, LP.

20

specific conservation and optimum utilization of resources that would eventually

lead to an agreement.80

On 2 December 2014, Rinnuco notified Aeolia regarding its planned ocean

fertilization project.81 Aeolia responded by requesting Rinnuco to act in accordance

with the Precautionary Principle and to abandon the same due to serious concerns

that the project would adversely affect the Narwhals and fish.82 Unheeded, on 5

January 2015, Rinnuco commenced the first phase of the project which failed to

take into account the protection of the Narwhal’s population.83

2. Failure to prevent and reduce marine pollution.

a. Introduction of ferrous sulfate through ocean fertilization is

dumping.

Under Article 1(1) of the UNCLOS and Article 1(4.1) of the LP,

dumping is defined as any deliberate disposal of waste or other matter

from vessels.84 Waste and other matter is thereafter defined as any

material and substance of any kind, form or description.85 Ferrous

sulfate is a material or substance of some kind, form or description.

80 Burke, W.T., The New International Law of Fisheries: UNCLOS 1982 and Beyond at 219 (1994).

81 Record, ¶14.

82 Record, ¶13.

83 Record, ¶16.

84 Article 1(1), UNCLOS; Article 1(4), LP.


21

b. Ocean fertilization pollutes the ocean.

The UNCLOS provides that states shall take all measures that

are necessary to prevent, reduce, and control pollution of the marine

environment from any source86 or by dumping.87 On the other hand, the

LP prohibits the dumping of any wastes or other matter.88 The pollution

of the marine environment is defined as the introduction by man of

substance or energy into the marine environment which results or is

likely to result in the deleterious effects as harm to living resources and

marine life.89

The dumping of ferrous sulfate into the ocean causes pollution.

It leads to the abnormal growth of phytoplankton in large quantities that

depletes oxygen in the deep ocean.90 Since oxygen is essential for the

respiration of marine life,91 the lack of oxygen shall result in the death

of some species and marine plant life.92 Furthermore, ferrous sulfate



88 Article 4.1, LP.

89 Article 1(4)(10), LP.

90 Christian Webersik, Climate Change and Security: A Gathering Storm of Global Challenges

(2010), at 95.

91 Canadian Council of Ministers of the Environment. 1999. Canadian water quality guidelines for

the protection of aquatic life: Dissolved oxygen (marine). In: Canadian environmental

quality guidelines, 1999, Canadian Council of Ministers of the Environment, Winnipeg.

92 Supra note 62 at 9-10.

22

increases deep-ocean acidification, thereby hindering the growth of

organisms which directly impact the marine food chain.93

3. Rinnuco does not have exclusive rights over shared resources within its

EEZ.

The EEZ is an area beyond and adjacent to the territorial sea not extending

beyond 200 nautical miles from the baselines from which the breadth of the

territorial sea is measured.94 Within the EEZ, a state has the sovereign right to

explore, exploit, and do marine scientific research.95 There is no absolute right over

the shared resources since it also comes with the duty to protect and preserve the

marine environment.96

Article 56(2) and Article 58(3) of the UNCLOS provides that in exercising

rights within the EEZ, coastal states shall have due regard to the rights and duties

of other states and shall act in a manner compatible with the provision of this

Convention.97

The 1978 UNEP Draft Principles on Shared Natural Resources also provide

that states have the duty to cooperate in the field of environment concerning the

93 Supra note 91.

94 Article 55, 57, UNCLOS.



97 Article 56(2), 58(3), UNCLOS.

23

conservation and harmonious utilization of natural resources shared by two or more

states.98

Furthermore, sovereignty embodies the obligation of every state not to

allow its territory to be used for acts contrary to the rights of other states.99

D. Rinnuco failed to promote Sustainable Development.

1. Non-observance of the intergenerational responsibility.

The UN General Assembly provides that states commit to protect and

restore the health, productivity and resilience of oceans and marine ecosystems, to

maintain their biodiversity, enabling their conservation and sustainable use for

present and future generations.100 The idea, that as members of the present

generation, we hold the earth in trust for future generations,101 is well known to

international law, having been relied upon as early as 1893 by the United States in

the Pacific Fur Seals Arbitration case.102 Moreover, in its Advisory Opinion on the

Legality of the Threat or Use of Nuclear Weapons, the ICJ recognizes that the

environment is not an abstraction but represents the living space, the quality of life

and the very health of human beings, including generations yet unborn.103

98 1978 UNEP Environmental Law Guidelines and Principles on Shared Natural Resources Principle 1.

99 Corfu Channel Case at 22.

100 United Nations General Assembly Resolution 66/288, July 27, 2012, (UNGA).

101 E. Brown Weiss, Our Rights and Obligations to Future Generations for the Environment, at 199

(84 AJIL 198 1990).


103 ICJ Reports 1996, at 226.

24

At present, only one of the eleven ocean fertilization projects conducted

worldwide since the 1990s had published promising results regarding carbon

sequestration.104 Therefore, Rinnuco’s claim that ocean fertilization may help

mitigate climate change lacks evidentiary basis.

2. Violation of Sustainable Development.

Article 8 of the CBD provides that states shall regulate or manage biological

resources important for the conservation of biological diversity whether within or

outside protected areas, with a view to ensure their conservation and sustainable

use.

Sustainable Development is development that meets the needs of the present

without compromising the ability of the future generations to meet their own

needs.105 The term is now established as an international legal concept.106 In the

Shrimp/Turtle case, the WTO Appellate Body characterizes sustainable

development as a concept which has been generally accepted as integrating

economic and social development and environmental protection.107

Four elements comprise the legal elements of sustainable development:

first, the principle of intergenerational equity; second, the principle of sustainable

104 Grant Wilson, Murky Waters: Ambiguous International Law for Ocean Fertilization and Ocean

Fertilization and other Geoengineering, at 521-522 (Texas International Law Journal

2014).

105 1987 Brundtland Report, supra note 53, at 252.

106 International Law Association’s New Delhi Declaration of Principles of International Law

Relating to Sustainable Development (2002).

107 Supra note 52, at 257, citing Shrimp/Turtle case, ¶129.

25

use; third, the principle of equitable use or intragenerational equity; and fourth, the

principle of integration.108

The first element focuses on the need to preserve natural resources for the

benefit of future generations. The second element provides that natural resources

are to be exploited in a manner which is sustainable, prudent, rational, wise or

deemed appropriate. The third element refers to the equitable use of natural

resources which implies that the use by one state must take into account the needs

of other states. Finally, the fourth element requires that environmental

considerations are integrated into economic and other development plans,

programmes and projects, and that the same are taken into account in applying

environmental objectives.109

In the Gabcikovo-Nagymaros case,110 the concept declaring that the need to

reconcile economic development with the protection of the environment is aptly

expressed in the concept of Sustainable Development. No reconciliation of the

possible advantages of Rinnuco’s project with the protection of both states’ shared

resource after the first phase of ocean fertilization was conducted.

108 Id. at 253.


110 Gabcikovo-Nagymaros, at ¶ 140.

26

E. Rinnuco is responsible for an internationally wrongful act.

An internationally wrongful act exists when an act or omission is one, attributable

to the state and two, it constitutes a breach of an international obligation of a state.111 Both

elements are necessary to find a state responsible.112 This Court referred to two elements:113

first, it must first determine how the acts in question may be regarded to the state and

second, it must show the compatible obligations of the state under treaties in force or under

any rule of international law that may be applicable.114

1. The act is attributable to Rinnuco.

On 21 November 2014, Rinnuco announced its intention to engage in an

ocean fertilization project and notified Aeolia on 2 December 2014.115

On 15 December 2014, Rinnuco’s legislative body passed a law approving

and fully funding the project.116

Finally, on 5 January 2015, Rinnuco conducted the initial phase of the

project by dumping ferrous sulfate into the ocean which led to the death of the

Narwhals.117

111 Responsibility of States for Internationally Wrongful Acts, Art.2, G.A. Res. 56/ 83, Annex.

UN.Doc. A/RES/58/83/Annex (2002).

112 Commentary on the Articles on State Responsibility, Rep. of the Int’l Law Comm’n, 53rd Sess.,

Apr. 23- June 1, July 2- August 10, 2001, 202-03, UN.Doc. A/56/10; GAOR, 56th Sess.,

Supp. 10 (2001).

113 Id. at 34.

114 United States Diplomatic and Consular Staff in Tehran Case, at 3 & 29 ¶56, Cf. at 41, ¶90.

115 Record, ¶12.

116 Id. ¶15.

117 Id. ¶16, 20.

27

2. The act constituted a breach of an international obligation.

An act which produces a result which on its face is a breach of legal

obligation gives rise to responsibility in international law, whether the obligation

rests in treaty, custom, or some other basis.118 This element has also been expressed

as failure to comply with treaty obligations.119

Rinnuco failed to comply with its CBD obligations by the non-observance

of the Precautionary Principle and the principle of Sustainable Development and

by causing great damage to the marine biodiversity of the Muktuk Ocean and the

death of the Narwhals.

Rinnuco likewise violated its UNCLOS treaty obligations when it failed to

cooperate with Aeolia in the conservation of migratory species, caused pollution

and abused its rights over the shared marine resources within its EEZ.

Finally, Rinnuco failed to comply with treaty obligations under the LP when

it proceeded to dump ferrous sulfate into the ocean and caused transboundary

damage to Aeolia.

118 Ian Brownlie, Principles of Public International Law, at 429 (Oxford U. Press, 2008).

119 Supra note 110, ¶57.

28

CONCLUSION AND PRAYER

The Federal States of Aeolia respectfully requests the Court to adjudge and declare that:

1. The Court has jurisdiction to determine the matter; and

2. 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,

AGENTS FOR THE APPLICANT

INTERNATIONAL COURT OF JUSTICE · Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A No. 2...

Documents

Transcript of INTERNATIONAL COURT OF JUSTICE · Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A No. 2...