2157

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO PROTECTION OF BATS AND INTERNATIONAL TRADE MEASURES (FEDERAL STATES OF ALDUCRA V. REPUBLIC OF RUNBETI)

THE FEDERAL STATES OF ALDUCRA

Applicant

v.

THE REPUBLIC OF RUNBETI

Respondent

MEMORIAL FOR THE APPLICANT

THE 25TH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION 2020-2021

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TABLE OF CONTENTS

INDEX OF AUTHORITIES 3

TABLE OF ABBREVIATIONS 4

STATEMENT OF JURISDICTION 5

QUESTIONS PRESENTED 5

STATEMENT OF FACTS 5

SUMMARY OF ARGUMENTS 7

ARGUMENTS 7

I. THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS WF PROJECT 7

A. THE CONVENTION’S RESOLUTIONS SHOULD BE TAKEN AS SUBSEQUENT PRACTICE UNDER THE VCLT 7

B. RUNBETTI VIOLATED ITS OBLIGATIONS UNDER INTERNATIONAL LAW DURING THE WF PROJECT AND ITS OPERATION 8

i. The duty not to cause TH (art. 8 cbd and arts. Ii and iv cms) 8

ii. The duty to prevent TH 9

1. Runbeti violated its obligations under CBD by limiting its efforts to prevent TH to a scant EIA t and no further actions 10

2. Runbeti Breached its Duty to Cooperate 11

C. The Respondent WF project violated its obligations under CMS 12

D. Runbeti violated article III and EUROBATS Resolutions as they permitted the construction of the WF at a known migratory route to the RNB 13

E. Runbeti’s omission in implementing mitigation measures to avoid bat fatalities in WT violates its obligations under treaties and ARSIWA. 13

II. THE FEDERAL STATES OF ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS TRADE MEASURES FOR TAPAGIUM PRODUCTS 14

A. Alducra's extraterritorial measures are supported by the principle of state sovereignty and have not violated the principle of non-intervention 14

i. Aducra’s measures were extraterritorial 14

ii. The measures are supported by the principle of state sovereingty 15

iii. Alducra did not violate the principle of non-intervention 15

B. Alducra did not violate the General Most-Favored-Nation Treatment (Article VII) 16

C. The Statute does not violate the national treatment principle (Article VIII) 16

D. The trade measures conform to the exceptions in Article X of ARTA. 17

i. The trade measures comply with Article X (b) of ARTA. 17

ii. The trade measures are according to Article X (g) of ARTA. 17

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E. The trade measures comply with the chapeau of Article X of ARTA 18

i. Proportional deadlines for the transitional period constitute compliance to the chapeau. 18

ii. The compatibility of the Statute with the principle of balancing of rights indicates conformity with the chapeau. 19

iii. The practice of Alducra, derivative of the Statue, conveys observance to the chapeau. 19

F. There are limits to addressing WTO decisions as subsidiary means of interpreting ARTA. 20

i. The findings in the Tuna – Dolphin II Case are scarcely applicable for interpreting ARTA. 20

ii. The findings in the Shrimp - Turtle Case are moderately applicable 20

CONCLUSION AND PRAYER 20

INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Agreement on the Conservation of Populations of European Bats .................................................11

Architerpo Regional Trade Agreement ….........................................................................................................................................14, 15

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, 1992 ….................................10, 12

Convention on the Conservation of Migratory Species of Wild Animals, 1979...........................9, 16

General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194.................................................................................14, 15, 16

Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104................................................................................................................. 10 Rio Declaration on Environment and Development 1992 and RIO+20, June, 2012.................7, 11, 16 Statute of the International Court of Justice, 26 June 1945, T.S. 993................................................ 14

Stockholm Declaration: United Nations Conference on Human Environment, 1972 ........................16 The United Nations Guidelines for Consumer Protection (UNGCP)...............................................19

UN General Assembly, United Nations Framework Convention on Climate Change : resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189.............................................................................................................................16

Vienna Convention on the Law of Treaties....................................................................................10, 16

JUDICIAL DECISIONS

Certain Activities Carried Out by Nicaragua In the Border Area (Costa Rica v. Nicaragua), Judgement, General List No.150 (Feb. 2018)..............

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Bluefin Tuna, New Zealand v Japan, Provisional Measures, ITLOS Case No 3, (1999)....................16

Corfu Channel, (U.K.-Alb.), Merits, Judgment, I.C.J (1949). ...................................................5, 7, 10

Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007.................................................9

Nuclear Tests (New Zealand-France) case, ICJ ................................................................................11

Panel Report on United States – Restrictions on Imports of Tuna (1991) DS21/R (Tuna-Dolphin I). …....................................................................................................................................................16, 18

Panel Report on United States – Restrictions on Imports of Tuna (1994) DS29/R (Tuna-Dolphin II) …....................................................................................................................................................16, 18

Pulp Mills on The River Uruguay (Argentina-Uruguay), Judgment, I.C.J (2010) …............................... 8, 9

The Gabčíkovo-Nagymaros Project case, Hungary-Slovakia, ICJ Rep. (1997) …................. 7, 9, 18

Trail Smelter Arbitration (U.S. v. Can.) 1938/1941, 3 R.I.A.A. 1905 …...............................8

United States-India, Shrimp-Turtle, WT/DS58/AB/R (1998). ............................................... 5, 17, 18

Whaling in the Antarctic (Australia-Japan: New Zealand intervening), Judgment, I.C.J (2014) .................6

U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

ARSIWA Responsibility of States for Internationally Wrongful Acts 2001 ….............................11, 17

CBD Decision VI/7; VIII/28 Voluntary Guidelines to Biodiversity-Inclusive Impact Assessment; ...9

CBD Document 23.4.3.2..............................................

CMS RESOLUTION 7.5, 10.3, 11.27.............................................................................................8, 11

Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, Oct. 24, 1970, ............................................................................20

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United Nations Guidelines for Consumer Protection.................................................................18

EUROBATS, Resolution 8.4 …......................................................................................... 6, 7, 8, 9, 11

EUROBATS Guidelines for consideration of bats in WF projects. Publication Series No. 3 (2008)…................................................................................................................................................18 Statute of the International Court of Justice, U.N.T.S.No.933 (1945). R. ¶2. …...................................................................................................................................6, 14

ILA Study Group on Due Diligence in International Law, Second Report, 2016

IUCN 2020. The IUCN Red List of Threatened Species. Version 2020-2. …......................................13

ILC Draft Articles on Prevention TH from Hazardous Activities (2001) with commentaries ............................................................................................................................. 7

ESSAYS, ARTICLES, AND JOURNALS

A. Crowley, Meredith & Howse, Robert. Tuna Dolphin II: A economic analysis of the Appellate Body Report, (2013) …........................................................................................................................13

Aline Schuster, Trade and The Environment: The Legality of Unilateral Measures with Extraterritorial Effect to Protect The Environment Under The WTO/GATT. Diss. University of Cape Town (2012). ….............................................................................................................8, 14, 15, 19, 20 Arnett et al. 2013; Lagrange et al. 2012 In Rodrigues, L., L. Bach, M.-J. Dubourg-Savage, J. Goodwin & C. Harbusch, 2008. Guidelines for consideration of bats in WF projects. EUROBATS Publication Series No. 3........................................................................................................................17

Axel Desmedt ‘Proportionality in WTO Law’ (2001) 4 Journal of International Economic Law 446........................................................................................................................................................18

Clevenger, Anthony P., and Jack Wierzchowski. "Maintaining and restoring connectivity in landscapes fragmented by roads." CONSERVATION BIOLOGY SERIES-CAMBRIDGE- 14 (2006)

EU Guidance on wind energy development in accordance with the EU nature legislation, 2011, 3.4.2, at 97.... Erich Vranes Trade and the Environment, Fundamental Issues in International Law, WTO Law, and Legal Theory (2009) …........................................................................................................................18

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Ilona Cheyne ‘Trade and the Environment: the Future of Extraterritorial Unilateral Measures after the Shrimp Appellate Body’ (2000) 5 Web Journal of Current Legal Issues Introduction.......................................................................................19

James Crawford, Brownlie’s Principles of international Law. ..............................................................6

Joost Pauwelyn ‘Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO’ (2004) 15 European Journal of International Law 575 at 589..............................................................23

Lisseanu, A.G., Voigt, C.C. "Bats on the Move," Journal of Mammalogy, 90(6), 1283-1289, (15 December 2009) ..........................................

Lausche, B. et al. "The legal aspects of connectivity conservation." A Concept Paper, IUCN, Gland, Switzerland (2013) …............................................................................................................................13

Lehnert, L.S.et al. 2014. WF facilities in Germany kill noctule bats from near and far. PloS one, 9(8), p.e103106............................................................................................................................13

Măntoiu, Dragoş Ştefan, et al. "Wildlife and infrastructure: impact of wind turbines on bats in the Black Sea coast region." European Journal of Wildlife Research (2020) ….................................10, 13

Mitsuo Matsushita The World Trade Organisation (2006) 2ed, 111, 112.

Racey P.A. (1982) Ecology of Bat Reproduction. In: Kunz T.H. (eds) Ecology of Bats. Springer, Boston, MA ...........................................10

Voigt, C.C. et al., 2012. The catchment area of WFs for European bats: a plea for international regulations. Biological conservation, 153, pp.80-86.............................................................................13

BOOKS AND DIGESTS

BIRNIE, P. W., & BOYLE, A. E.. INTERNATIONAL LAW AND THE ENVIRONMENT. 3RD ED. (2009) P. 118-119..................................................................................................................................12

FINDLEY, JAMES S. BATS: A COMMUNITY PERSPECTIVE. P.13 - 15 (1993)…......................13

James Crawford, Brownlie’s Principles of international Law. 9th ED. (2019) ......................................................

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KUNZ, THOMAS H., AND M. BROCK FENTON, EDS. BAT ECOLOGY. P.699 (2005)...............13

Malcolm N. Shaw, International Law, at 855(6th ed., Cambridge U. Press 2008 ............................ 8, 9

Sands P., Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 273

SCHACHTER, OSCAR. INTERNATIONAL LAW IN THEORY AND PRACTICE. P.463 (1991) .....................................................................................................................................................12

TABLE OF ABBREVIATIONS

1. AB: Appellate Body 2. ARSIWA: Draft articles on Responsibility of States for Internationally Wrongful Acts 3. ARTA: Architerpo Regional Trade Agreement 4. CBD: Convention on Biological Diversity 5. CC: Chiroptera Crusaders 6. CITES: Convention on International Trade in Endangered Species of Wild Fauna and Flora 7. CMS: Convention on the Conservation of Migratory Species of Wild Animals 8. COP: Conference of the Parties 9. DSB: Dispute Settlement Body 10. EIA: Environmental Impact Assessment 11. EUROBATS: Agreement on the Conservation of Populations of European Bats 12. GATT: General Agreement on Tariffs and Trades 13. ICJ: International Court of Justice 14. IUCN: International Union for Conservation of Nature 15. LNB: Architerpan long-nosed bat 16. MA: Marrakesh Agreement establishing the World Trade Organization 17. PECO: Pinwheel Energy Co. 18. RD: Rio Declaration On Environment And Development 19. PTHHA: Draft articles on Prevention of Transboundary Harm from Hazardous Activities 20. R.: Stetson Record 21. RNB: Royal Noctule 22. TH: Transboundary harm 23. UNFCCC: United Nations Framework Convention on Climate Change 24. UNGCP: United Nations guidelines on consumer protection 25. VCLT: Viena Convention on the Law of Treaties 26. WF: Wind farm 27. WT: Wind turbines 28. WTO: World Trade Organization

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STATEMENT OF JURISDICTION

On July 2020, the Federal States of Alducra and Republic of Runbeti submitted by special agreement

their divergences on questions relating to protection of bats and international trade measures, in

accordance with Article 40 (1) of the Statute of the ICJ.1 Hence, pursuant to Article 36 (1) of the Statute,

the parties have accepted the jurisdiction of the court.2

QUESTIONS PRESENTED

I. WHETHER RUNBETI VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS WF

PROJECT.

II. WHETHER ALDUCRA VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS

TRADE MEASURES FOR TAPAGIUM PRODUCTS.

STATEMENT OF FACTS

The Parties and Dispute

Alducra and Runbeti are neighboring countries in Architerpo. The former is developed, while the latter

has a developing economy. They both depend on agriculture and produce tapagium.3 They are parties

to the ICJ statute, VCLT, CBD, CMS, EUROBATS, CITES, UNFCCC, ARTA, and part of the

consensus at various environmental conferences.4 The RNB and the LNB are endemic species to

Architerpo, ecologically important and listed as vulnerable in the IUCN Red List, CITES, CMS and

EUROBATS.5

1 Statute of the International Court of Justice, U.N.T.S.No.933 (1945). R. ¶2. 2 ICJ Statute. 3 R. ¶¶ 1, 11. 4 R. ¶¶ 2-8, 10, 12. 5 R. ¶ 14.

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PECO, a company subsidized by the government of Runbeti, proposed the design of a WF to be built

in phases, on the border between Alducra and Runbeti, where routes for migration, feeding and roosting

areas and commuting routes of the RNB are located.6 In 2015, there was an EIA for the first phase of

construction, and despite the request from CC (a regional bat conservation group) for mitigation

measures to avoid the negative impact of WT on the RNB, Runbeti and PECO refused to do so.7 In

2016, the first phase was completed.8 CC monitored the WF during 2017 and 2018 and found 237 dead

RNBs near the WT in 2017 and 356 in 2018.9 In 2019 Alducra sent a diplomatic note to Runbeti

requesting that the WF be shut down and the latter refused.10

Tapagium producers began using clones of the agave mother plant and cutting the stalks instead of

leaving the agave to flower, hence risking the LNBs which feed from and pollinate agave. To protect

the LNBs, in 2015, the Alducra government passed domestic legislation requiring Alducran farmers to

use bat-safe farming practices.11 The applicant also compelled Runbeti to pass bat-safe legislation,

however, it refused.12 In 2019, Alducra approved a statute that taxed 20% of all tapagium imported or

domestic tapagim sold in its territory produced from agave from farms that did not implement the bat-

safe farming practices. The statute also required that every bottle of tapagium be labeled as bat-safe or

not bat-safe.

This 2019 statute went into effect on 1 December 2019 but allowed other countries to transition until

29 August 2020.13 Runbeti requested Alducra to repeal the trade measures, and the latter refused.14 After

further failed negotiations, they entered into a Special Agreement to resolve the dispute by instituting

proceedings at the ICJ. Runbeti agreed to issue licenses for the construction of the second phase of the

WF project only after the ICJ rendered a decision.15

6 R. ¶ 17. 7 R. ¶¶ 19-20. 8 R. ¶ 19. 9 R. ¶ 21. 10 R. ¶ 22. 11 R. ¶ 15. 12 R. ¶ 25. 13 R. ¶ 26. 14 R. ¶¶ 27, 28. 15 R. ¶ 29.

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SUMMARY OF ARGUMENTS

I. RUNBETI VIOLATED INTERNATIONAL LAW WITH ITS WF PROJECT AND OPERATION.

Runbeti violated: (1) the duty not to cause TH, as the RNB losses constitute a significant harm,

because such serious impacts on the endangered bat population result in losses in ecosystem functions

and connectivity. (2) Runbeti violated the duty to prevent TH, since it did not act with due diligence,

in conducting an inappropriate EIA, and also because it did not cooperate with Alducra. (3) Runbeti

violated the CMS as it had the treaty obligation to follow the precautionary principle, but it did not.

(4) The respondent violated the EUROBATS considering its breach of the duty to safeguard

populations of bats. (5) Runbeti violated the ARSIWA for its omission to implement mitigation and

monitoring measures.

II. ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS

TRADE MEASURES FOR TAPAGIUM PRODUCTS

Alducra’s trade measures are in conformity with the principle of state sovereignty and did not violate

the principle of non-intervention. The applicant did not breach the General Most-Favored-Nation

Treatment or the National Treatment principle with its 2019 statute. Alducra’s trade measures

conform to the exceptions in Article X of ARTA, namely to paragraph b and g. That is because the

state’s activities were necessary to protect animal life and health and were relating to the conservation

of exhaustible natural resources. The measures also comply with the chapeau of Article X of ARTA.

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ARGUMENTS

I. THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH RESPECT

TO ITS WF PROJECT

A. THE CONVENTION’S RESOLUTIONS SHOULD BE TAKEN AS SUBSEQUENT

PRACTICE UNDER THE VCLT

Treaty recommendations and Scientifics reports historically have taken a significant role on

determining disputes on the international court of justice16. They aggregate a path to safely interpretate

the will of the conventions through the resolutions made by the decision-making organs17 and the

contracting parties18 are obliged to pay due regards to them.

VCLT Article 31 provides that posterior agreements between the parties should be taken as

subsequent practice of a convention. The meaning must emerge in the context of the treaty as a whole,

including the text, its preamble, annexes, and any posterior agreement.19 Therefore, as this court

previously ruled, since the Applicant and the Respondent fully participated of COPs20, parties are

obliged to comprehend as subsequent practice all the treaties recommendations that were unanimously

approved.

B. RUNBETTI VIOLATED ITS OBLIGATIONS UNDER INTERNATIONAL LAW DURING

THE WF PROJECT AND ITS OPERATION

Although the transition to renewable sources of energy is desirable and a contributes to the

commitments assumed under UNFCCC21 and Paris Agreement22, renewable energy projects and

16 Whaling in the Antarctic, ¶ 83, (2014). 17 CMS, art 7.1, https://www.cms.int/en/document/cms-convention-text. 18 R. ¶ 3-6. 19 James Crawford, Brownlie’s Principles of international Law, at 367. 20 Clarifications, A5. 21 UNFCCC, Art. 3.4., https://unfccc.int/resource/docs/convkp/conveng.pdf. 22 Paris Agreement, Art. 4.2, https://unfccc.int/sites/default/files/english_paris_agreement.pdf.

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operation, as any other activities under the State‘s territory, should not cause TH23. In accordance with

Principles 3 and 4 of Rio24, the right to develop or achieve sustainable development cannot override

international law concerning conservation of biodiversity, instead, must reinforce conducts to comply25.

In this respect, States are obliged to i) follow the duty not to cause TH, in accordance with Rio

Principle 226 and ii) comply with the duty to prevent TH from its activities27.

i. THE DUTY NOT TO CAUSE TH (ART. 8 CBD AND ARTS. II AND IV CMS)

In Gabcikovo-Nagymaros, the ICJ28 emphasized the obligation to ensure that activities respect the

environment of other states beyond national control. Thus, TH occurs when there is a significant

consequence to a State(s) environment and/or wildlife as a result of human activities held in another

State's territory29.

The harm caused by Runbeti is significant as it accounts for high losses30 of a migratory species

classified as “endangered”31 and considered to be a k-selected species, meaning that decreases in

population size take considerable time to be recovered 32. Furthermore, such serious impacts in bats

population result in losses in ecosystem functions, since bats are considered to be keystone species

responsible for significant pollination, soil fertilization, insect control and seed dispersal33. Moreover,

23 PTHHA, art.3. https://legal.un.org/ilc/texts/instruments/english/commentaries/9_7_2001.pdf; Corfu Channel, at. 22, 1949. 24 Rio Declaration (1992) https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf.[RIO] 25 Birnie, P. W., & Boyle, A. E. International law and the environment. 3rd ed., at. 118-119 (2009). 26 Rio supra 27 supra 23 ILA Study Group on Due Diligence in International Law, Second Report, 2016, at. 47. http://www.ila-hq.org/index.php/study-groups 28 Gabcikovo-Nagymaros, at. 53, 1997. 29 Schachter, O. International law in theory and practice, at. 463, 1991. 30 R ¶ 21. 31 IUCN 2020, https://www.iucnredlist.org. 32 K-strategist species have a few offspring and populations fluctuate near the carrying capacity of the environment. Findley, J. S. Bats: a community perspective. p.13-15 (1993) 33 Kunz, T. H., and M. Brock Fenton. Bat ecology. p.699 (2005)

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extensive scientific studies34 have shown that the high fatality rates of bats due to WTs have far-reaching

consequences, particularly for populations of migratory bats, as it has been shown through isotope

methods that bat individuals found dead near WTs were originally from areas beyond the State border35.

Furthermore, in present-day science, connectivity is widely recognized as a key component of nature

conservation and a requirement for effective protected area systems and networks36 has gained attention

particularly for its potential to reverse the accelerating rates of biodiversity loss and its benefits

concerning climate change37. The preservation of connectivity is in conformity with Article 31 of the

VCLT38 and customary international law. Several provisions are of relevance to the topic, particularly

the following paragraphs of CBD Article 839 on in-situ conservation.

Also, CMS Resolution 10.340, is specifically devoted to critical sites and ecological networks in the

CMS context. Its Preamble recognizes that “habitat destruction and fragmentation are among the

primary threats to migratory species, and that the identification and conservation of habitats, in

particular the critical sites and connecting corridors, are thus of paramount importance for the

conservation of these species”.

In the present case, the WF is an obstacle to bats movements and migrations41. Therefore, since

connectivity 'operates in the degree to which the landscape facilitates species movement and other

ecological flows’42, Runbeti violated its obligation to do not cause TH as its activities impaired

connectivity in respect of migratory wildlife43.

34 Voigt, C.C. et al., 2012. The catchment area of WFs for European bats: a plea for international regulations. Biological conservation, 153, pp.80-86., Lehnert, L.S.et al. 2014. WF facilities in Germany kill noctule bats from near and far. PloS one, 9(8), p.e103106. 35 Măntoiu, D.Ş. et al. 2020. Wildlife and infrastructure: impact of wind turbines on bats in the Black Sea coast region. European Journal of Wildlife Research, 66(3), pp.1-13. 36 Lausche, B. et al. "The legal aspects of connectivity conservation." A Concept Paper, IUCN, (2013). 37 Id. at.29-40 38 VCLT (1969) https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. 39 CBD (1992) https://www.cbd.int/convention/text/ 40 CMS Resolution 10.3 (25 Nov 2011) https://www.cms.int/en/documents/cop-resolutions 41 R. ¶ 21 42 Lausche, supra at. 16 43 R. ¶ 21.

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Finally, the respondent cannot plead irresponsibility in causing such harm. Since PECO operated in its

territory, the State also accounts to the impacts from the company conducts and it had the obligation to

regulate the activities of the company in order to do not cause TH. 44

ii. THE DUTY TO PREVENT TH

According to the ICJ Judgment on the Pulp Mills Case45, the Duty to Prevent TH obliges a State to use

all the means available in order to avoid activities from causing significant damage to the environment

of another State. Furthermore, a party does not comply with its duty to prevent TH when it neglects due

diligence,46 as obligation of conduct rather than one of result.47 In energy infrastructure projects, due

diligence comprehends substantial studies to account for possible impacts on environment and effort to

mitigate and monitor such impacts, where they might occur 48.

Another significant aspect of due diligence is the duty to cooperate with other States in order to inform

possible harm affecting their territories and to conduct good-faith strategies so together they could

address eventual side effects from its activities49. Here, Runbeti did not comply with its international

legal obligation to conduct an appropriate EIA and adopt the implementation of mitigation d monitoring

measures50. Therefore, the State did not observe due diligence, regardless of whether the harmful result

occurred or not.

1. Runbeti violated its obligations under CBD by limiting its efforts to prevent TH

to an inadequate EIA and no further actions

44Corfu Channel, at. 22, 1949. 45 Pulp Mills, 2010, ¶ 101. 46 Malcolm N. Shaw, International Law, at 855(6th ed.2008); Pulp Mills, ¶ 101, 2010; Corfu, at. 22. 47 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p.43, ¶ 430. 48 CMS Resolution 11.27 49 The Gabcikovo-Nagymaros Project, supra, ¶ 140. 50 R ¶ 19-20, 24

Formatted: Indent: First line: 0", Line spacing: Double

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The need, under general international law, for an EIA, where the planned activity is likely to cause TH

is already well established by the ICJ51. Although the respondent may reason that the extent and content

of assessment if not specified under the international law to which Runbeti is binded, according to the

Court judgement in Pulp Mills, the assessment must have regard to “the nature and magnitude of the

proposed development and its likely adverse impact on the environment” 52. In that sense, the ILC 2001

Commentaries53 clarifies that relating to Article 7 of PTHHA, “in order for the States likely to be

affected to evaluate the risk to which they might be exposed, they need to know what possible harmful

effects that activity might have on them”, thus, the EIA must be as in-depth as possible to permit the

recognition of harmful effects to other States.

Runbeti’s EIA is insufficient and does not comply with such need, also violating CBD Article 14, which

urges parties to run EIA of its proposed projects that are likely to have significant adverse effects on

biological diversity with a view to avoiding or minimizing such effects. Although Runbeti carried an

EIA for the first phase of the WF project, the study was conducted only during the second half of 201554,

pointing its precariousness, as explained below.

CBD Decisions VI/7 and VIII/28 urge parties to apply the voluntary guidelines on biodiversity-

inclusive EIA as appropriate in the context of their implementation of paragraph 1 (a) of Article 14 of

the Convention. The guidelines document under the referred decisions emphasizes the need of including

meaningful analyses with broad, long-term perspective enabling cause-effect chains to be tracked in

order to access the activities impacts on biodiversity55.

Considering the notorious fact that many bat species have their movement patterns altered through the

seasons and the RNBs, especially, migrate to spend the winter in warmer areas and during early

51 Pulp Mills in the River Uruguay (Apr 2010), Judgments, ¶ 205 52 Id. 53 PTHHA, p. 157-9. 54 R. ¶ 19 55 CBD, Decision VIII/28 Voluntary Guidelines to Biodiversity-Inclusive Impact Assessment. ¶ 27, https://www.cbd.int/decision/cop/?id=11042.

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pregnancy of females - around April - they fly back to their maternal colonies56, the EIA conducted by

Runbeti was evidently deficient. Several relevant scientific studies have shown that the rate of bat

accidents with WT vary through the year due to their reproductive cycle and migration periods57. Thus,

Runbeti’s insufficient EIA is a clear violation to its duties under CBD article 14 which emphasizes the

importance of good quality EIA involving complete consideration of possible effects concerning

impediments to migration.

Furthermore, Runbeti did not conduct monitoring activities after the operations have started58, and even

interrupted the monitoring procedures being undertaken by an independent conservation group59,

violating the customary law60 and violating article 7 (c) of CBD61 and CMS Resolution 11.2762 which

urges parties to “undertake appropriate surveying and monitoring both before and after deployment of

renewable energy technologies to identify impacts on migratory species and their habitats in the short-

and long-term, as well as to evaluate and assess the effectiveness of mitigation measures, making

modifications where necessary”

2. Runbeti Breached its Duty to Cooperate

The duty to cooperate is an established principle of International Environmental Law, particularly when

the interests of neighboring Countries are at stake, and is reinforced by multiple agreements and

conventions, such as CBD63, CMS64, Stockholm Declaration65. It balances the principle of sovereignty

of States, thus ensures the consideration of community interests in vis-à-vis individualistic State

interests.

56 Racey P.A. (1982) Ecology of Bat Reproduction. In: Kunz T.H. (eds) Ecology of Bats. Lisseanu, A.G. , Voigt , C.C. "Bats on the Move," Journal of Mammalogy, 90(6), 1283-1289, (2009). 57 Voigt, C.C. et al., 2012; Lehnert, L.S.et al. 2014; Măntoiu, D.Ş. et al. 2020 58 R ¶20 59 R ¶24 60 Pulp Mills on The River Urugay, ¶ 266. 61 CBD, 1992, art. 7, https://www.cbd.int/doc/legal/cbd-en.pdf 62 CMS Resolution 11.27, ¶ 2(c) 63 CBD, art. 5, https://www.cbd.int/doc/legal/cbd-en.pdf. 64 Resolution 7.5, May 18 2017; Decision 13.130, https://www.cms.int/en/documents/cop-resolutions. 65 Stockholm Declaration, art. 24. https://www.ipcc.ch/apps/njlite/srex/njlite_download.php?id=6471.

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According to PTHHA, to cooperate is notifying, consulting and negotiating66, which Runbeti made no

effort to comply. The Respondent did not follow ICJ ruling on the Corfu Channel Case67 to notify nor

consult68 the applicant about the construction of the WF, despite being at a known important area to

RNBs and close to border69, and refused to negotiate when reached70. Therefore, Runbeti unjustifiably

breached its duty to cooperate in a matter of mutual interest with its neglect behavior and must be

evaluated on that.

C. The Respondent’s WF project violated its obligations under CMS

CMS provisions71 urge parties to act towards the conservation of migratory species, especially

those which the conservation status are unfavorable. In the present case the. RNB and LNB are in the

Red List as Least Concern and Near Threatened72, respectively, and are also present in CMS Appendix

II73. Furthermore, the RNB and LNB are of the utmost importance for the ecosystem of the countries at

dispute since they are together responsible for pollination, seed dispersal and insect control throughout

Architerpo. Therefore, through the implementation of the WF project and the posterior death of

hundreds of these animals74, the respondent violated the treaty art. 2.1.

Furthermore, CMS Resolution 7.5 calls upon the parties to take full account of the

precautionary principle in the development of WT plants while monitoring EIA data75. Therefore, since

the COPs are the decision organs of the convention76 and this resolution should be interpreted as a

subsequent practice under the VCLT, the Respondent has the treaty obligation of preventing harm.

66 PTHHHA, 2001, art. 4,8,9. 67 Corfu, p. 23. 68 R. ¶ 16, 22 69 R. ¶ 17 70 R .¶ 25 71 CMS, art 2.1, https://www.cms.int/en/convention-text. 72 R. ¶ 14 73 R. ¶ 14 74 R ¶ 21 75 CMS Resolution 7.5 1(b). 76 CMS, art 7.1.

8

Principle 15 of Rio entails that in risk of irreversible damages to the environment, states need

to take precaution77. Furthermore, as sustained by New Zealand in the Nuclear Test Case78, and

defended by judge Weeramantry in his decision79, states are responsible for demonstrating, before

authorizing an activity, that there will be no damage80. Nevertheless, the Respondent failed to prove

that its WF project would not harm the population of threatened bat species by conducting a flawed

EIA, as previously mentioned, that would result in hundreds of avoidable deaths. Therefore, Runbeti

violated its obligations to abide to the precautionary principle under CMS Resolution 7.5.

D. Runbeti violated article III and EUROBATS Resolutions as they permitted the construction

of the WF at a known migratory route to the RNB

Being a contracting party to EUROBATS81, as in the EU Guidance on Wind Energy

Development, Runbeti�82�83�84�, in a property that also includes several critical feeding and roosting

areas and commuting routes for the RNB, Runbeti85�.

Also, Runbeti did not ensure that post-construction monitoring of the WFs86 continued as long

as needed to guarantee effectiveness, violating Eurobats Resolutions – 8.487 and 8.11, in addition to the

CMS Resolution 11.27. Beyond that, Runbeti prohibited the CC to continue to monitor the WF88,

making clear their intention to obstruct the correct data about bat losses due to the WFs, that were of

77 Rio, p.15. 78 Nuclear Tests, ¶ 34, 1995. 79 Id., ¶ 342. 80 P. Sands, Principles of International Environmental Law (2nd edn, Cambridge, CUP, 2003), 273. 81 R. ¶ 3. 82 EUROBATS, art. III, 2, https://www.eurobats.org/sites/default/files/documents/pdf/Agreementtexts/FCO_Agreement_Text_engl.pdf 83 EU Guidance on wind energy development in accordance with the EU nature legislation, 2011, 3.4.2, at 97, https://ec.europa.eu/environment/nature/natura2000/management/docs/Wind_farms.pdf. 84 R. ¶ 17. 85 EUROBATS, art. III. 86 R. ¶ 20. 87 EUROBATS, Resolution 8.4, 6-8, 9, https://www.eurobats.org/sites/default/files/documents/pdf/Meeting_of_Parties/MoP8.Resolution%208.4.%20Wind%20Turbines%20and%20Bat%20Populations_0.pdf. 88 R. ¶ 24.

9

237 and 356 dead RNBs during 2017 and 201889. That is an attempt to hide the WF damages to the bat

population and an effort not to be held accountable for their actions and cannot pass unnoticed by the

Court.

E. Runbeti’s omission in implementing mitigation measures to avoid bat fatalities in WT

violates its obligations under CBD, CMS, EUROBATS and ARSIWA.

CBD obliges parties to ensure mitigation measures, when possible, in order to minimize negative

impacts on biodiversity caused by human activities.90 Moreover, CMS and EUROBATS, in their

articles 2.1 and 3.2, respectfully, as well as in its resolutions91, establish that parties shall minimize, as

appropriate, the adverse effects of activities that impede the migration of the species. Nevertheless,

Runbeti did not take any possible mitigation measure to minimize bat fatalities in WT and also declined

all mitigation measures proposed.92

CBD stipulates that parties shall “promote and cooperate in the use of scientific advances in biological

diversity research in developing methods for conservation and sustainable use of biological

resources”93. Currently, there is comprehensive and solid scientific knowledge revealing effective

mitigation measures to be considered in WFs94. Curtailment by increasing the cut-in speed and changing

the blade angles of turbines during the periods of low wind speeds has been proven to reduce bat

mortality by significant levels with less than 1% loss in total annual power output95. Thus, Runbeti

cannot reason that the country did not have alternatives to mitigate the negative impacts on RNBs or

that such measures were not taken due to economic and productivity reasons.

89 R. ¶ 21. 90 CBD, art. 5. 91 CMS, Resolution 7.5, art. 2; CMS, Resolution 11.27 art. 2 g.; EUROBATS, Resolution 8.4. 92 R. ¶ 23. 93 CBD, art. 12. 94 Măntoiu, D.Ş.,et al 2020 and CMS Renewable Energy Technologies and Migratory Species: Guidelines for Sustainable Deployment, Doc 23.4.3.2 , 2 Oct 2014. https://www.cms.int/sites/default/files 95 See Arnett et al. 2013; Lagrange et al. 2012 In Rodrigues, L. et al. 2008. Guidelines for consideration of bats in WF projects. EUROBATS Publication Series No. 3

10

The respondent must, therefore, also respond for violating Article III, paragraph 4 (b) of EUROBATS,

for having had no real demonstration of efforts to compensate or minimize the effects of turbines, in

this case the death of bats.

As decided in Costa Rica v. Nicaragua, environmental damages should be compensated, in consistency

with principles of international law governing the consequences of internationally wrongful acts.96

These consequences are disciplined in ARSIWA according to which negligent actions, such as the

construction of the WF devoid of sufficient EIAs and cooperation, that resulted in injuries, like the

deaths of RNBs and other bat species, entail reparation97. Bearing in mind the nature of the injury at

hand, reparation should be in form of environmental mitigation measures, albeit the Respondent

declined issuing them.98

I. THE FEDERAL STATES OF ALDUCRA DID NOT VIOLATE INTERNATIONAL

LAW WITH RESPECT TO ITS TRADE MEASURES FOR TAPAGIUM

PRODUCTS

A. Alducra's extraterritorial measures are supported by the principle of state sovereignty

and have not violated the principle of non-intervention.

i. Aducra’s measures were extraterritorial

The trade measures applied by Alducra were directed at regulating conducts taking place on foreign

territory, that is, the non-bat-safe cultivation of agave for tapagium production which could only occur

within the jurisdiction of Runbeti.99 In this sense, reference should be made to the concept of

extraterritoriality, which represents any measure that regulates an action occurring outside the

96 Costa Rica v. Nicaragua, ¶ 41-43, 2018; R. ¶ 19

97 PTHHA, Art. 34-39; R. ¶ 21. 98 R. ¶ 20. 99 Clarifications, A10, A15.

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regulating country.100 Hence, Alducra did apply extraterritorial measures, because the LNBs that the

state aimed to protect also occurred in Runbeti’s territory.101

ii. The measures are supported by the principle of state sovereingty

Moreover, by establishing restrictions on the export of tapagium to its territory,102 Alducra acted in

accordance with the general principle of state sovereignty, admitted by the statute of this court103 as a

source of international law. It asserts that States have the right to establish their economic and political

systems,104 as well as their foreign policies. It also deals with the right to self-determination which

comprises a state’s internal and external competence.105 Just as Runbeti has the right to sovereignty,

Alducra also has the right to implement extraterritorial measures, thus making use of the right to self-

determination106 as it will be discussed further.

iii. Alducra did not violate the principle of non-intervention

Alducra made the export of tapagium of Runbeti conditioned to certain requirements of the 2019

statute.107 Furthermore, the principle of non-intervention asserts that the country implementing the

extraterritorial measure cannot force the other country to change its policies.108 But Alducra did not

force any country to follow the statute and change its internal policies. And even if there was an

intervention by the applicant, like the right to sovereignty, the principle of non-intervention is also not

absolute.109 Thus, articles X of ARTA and XX of GATT advocates some interests that, when pursued,

exclude other obligations under the conventions. This is the case of the extraterritorial measure of

100 Aline Schuster, Trade and The Environment: The Legality of Unilateral Measures with Extraterritorial Effect to Protect The Environment Under The WTO/GATT. Diss. University of Cape Town, 45 (2012). 101 R. ¶ 15. 102 R. ¶ 26. 103 ICJ Statute, art. 36(1)(C). 104 Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations, Oct. 24, 1970, https://www.un.org/ruleoflaw/files/3dda1f104.pdf 7-8. 105 Schuster, supra at 48. 106 Id. at 49. 107 R. ¶ 26. 108 Schuster, supra at 49. 109 Id. at 50.

12

Alducra, which, in pursuing the interest in conserving exhaustible natural resources, did not violate the

principle of non-intervention, but rather fits the applicant's right to sovereignty.

B. Alducra did not violate the General Most-Favored-Nation Treatment (Article VII)

Alducra created the 2019 statute and directed it to all tapagium producing countries, including the

applicant's national producers.110 In doing so, Alducra has limited equal time for all countries in the

world to comply with the statute requirements, and this period of almost 10 months was reasonable.111

Therefore, Alducra did not draft a rule or formality in connection with imports that benefited or harmed

one country or another, but created a taxation rule that extended to all states equally, without

discrimination, thus, the applicant complied with article VII of ARTA (General Most-Favored-Nation

Treatment), since there was no nation more favored than the others.

C. The Statute does not violate the national treatment principle (Article VIII)

Alducra enacted the 2019 statute with the taxation of tapagium products that were produced with agave

whose planting has not been bat-safe and regarding to the labeling of these products as bat-safe or non-

bat-safe.112 Further, those measures were applied to all tapagium being sold in Alducra’s territory,

including the domestic products.113

Thus, article VIII of ARTA states that internal taxes or requirements affecting internal sales are

prohibited when taken to afford protection for domestic production, or when they are taken in excess of

trade restrictions on similar domestic products. In this sense, when Alducra passed the 20% taxation on

tapagium products and labeling requirements,114 it did so with no discrimination, since both measures

extended to the tapagium produced domestically.115 Accordingly, there was no attempt to afford

110 R. ¶ 26. 111 Id. 112 Id. 113 Id.; C. ¶ 12. 114 R. ¶ 26. 115 Id.; C. ¶ 12.

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protection to Alducra’s domestic products as well as there was no excess of restrictive measure on

foreign products in relation to domestic products.

Also, Alducra had its statute that requires bat-safe agave farm practices implemented with a term of less

than one year.116 As for Runbeti, the requirements for bat-safe practices were proposed in March 2019

by Alducra,117 and only started to be required on August 29, 2020,118 that is, the respondent had more

time to adapt to the requirements than the applicant.

The taxable event in issue is the production of tapagium using agave whose planting are non-bat-

safe.119 Similarly, Alducra tapagium producers could easily utilize non-bat-safe agave for the

production of the tapagium, by importing agave from Runbeti. Thus, Alducra nationals could fit into

the taxable event and into the premises for the labeling requirement and, therefore, they are also

subject to the trade restrictive measures. In this sense, there is no national treatment in the present

case.

D. The trade measures conform to the exceptions in Article X of ARTA.

The taxation of non-bat-safe tapagium and labeling of tapagium fulfill requirements of paragraphs b

and g of Article X. ARTA resembles the GATT text.120 Hence, findings of the GATT panel and the

WTO AB about the GATT are instrumental for interpreting ARTA and applying it to the present

dispute. Similarities may be identified between the former’s Article XX and the latter’s Article X,

including their paragraphs b and g.

i. The trade measures comply with Article X (b) of ARTA.

Paragraph b prescribes that parties in the convention may not be hindered from adopting and enforcing

measures “necessary to protect human, animal, or plant life or health”, hence it is an exception to the

principle of non-intervention.121 As reasoned in the Tuna-Dolphin case II report, the beforementioned

116 R. ¶ 15. 117 R. ¶ 25. 118 R. ¶ 26. 119 Id. 120 R. ¶ 12, 13. 121 R. ¶ 13.

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exception is compatible with general international law and does not require, in its text, the protected

animals to be located within the jurisdiction of the country implementing the measure at stake.122

Furthermore, noting that paragraph b does not specify the location of the protected life, the panel

sustained that benefit of the doubt should be considered.123 Hence, it is legitimate that Alducra seeks to

protect bats which may be located in the territory of Runbeti.

ii. The trade measures are according to Article X (g) of ARTA.

In order to analyze the applicability of paragraph g of ARTA, the WTO AB report on the Turtle-shrimp

case is an important subsidiary source. Like sea turtles in the Turtle-shrimp case, the LNB is an

exhaustible natural resource, especially when understood in light of conventions to which both parties

are bound and declarations which Runbeti and Alducra agreed to.124 This treaty interpretation rule is

prescribed in the VCLT.125 The beforementioned species is especially protected under the appendices

of CITES, CMS, EUROBATS and declared as vulnerable in the IUCN Red List.126 Furthermore, the

sustainable development principle is in the preamble of ARTA, as well as in the UNFCCC, MA and

RD.127 The AB also sustained that paragraph g was applicable under the argument of the ‘sufficient

nexus’, due to two conditions which are also identified in the present case: reasonable relation between

policy and intent and the exploitability of the species.

Regarding the first condition in recognizing ‘sufficient nexus’, the trade measures are “reasonably

related” to the policy goal of conserving LNBs. Taxing and labeling agave spirits is a commercial

measure based on scientific analyses of production methods that endanger the LNB, as an exhaustible

resource.128 In addition, the 2019 statute endorsed not only the methods applied in Alducra but all that

122 Tuna-Dolphin II, DS29/R, ¶ 5.31-2 (1994). 123 Id. ¶ 5.33. 124 R. ¶ 4-8, 10. 125 R. ¶ 3; VCLT, Art. 31.3.c; Joost Pauwelyn, Recent Books on Trade and Environment: GATT Phantoms Still Haunt the WTO ,15 European Journal of International Law 589 (2004). 126 R. ¶ 14. 127 R. ¶ 13. MA, Preamble, https://www.wto.org/english/docs_e/legal_e/04-wto_e.htm. RIO, Principle 1, https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf. UNFCCC, Art. 3. 128 R. ¶ 15.

15

were the same or equivalent to those under the 2015 Statute, therefore establishing as its requirement

the effectiveness of the conservation.129 Furthermore, since the AB found that the U.S. measure,

substantially stricter than the present one, was an effective incentive for policy changes by other

countries by allowing in Section 609 multiple sustainable fishing methods, it would be reasonable to

sustain that the policy at stake, which is also flexible, is similarly not disproportionately wide.130

Additionally, Alducra subjected its own farmers to the labeling requirements of the 2015 statute.131

The second condition under ‘sufficient nexus’ is exploitability. The exploitability of an exhaustible

resource by a State is defined as a State’s practice of preserving it. Despite that the population of

LNBs to be conserved under the 2019 Statute is not permanently in Alducran territory, the 2015

preservation policies already indicate that Alducra has a certain degree of control over the exhaustible

resource, hence it exploits the resource. Therefore, due to the measures being “reasonably-related”

to the policy goal and the LNBs being exploitable by Alducra, there is a sufficient nexus between the

bat species and this State.

E. The trade measures comply with the chapeau of Article X of ARTA The provision in the chapeau of Article X of ARTA is satisfied in the enactment of the 2019 statute and

in the concrete actions concerning the imminent taxation of non-bat-safe tapagium and labeling of

tapagium. Insofar as the regulation was applied in a manner which does not constitute a means of

“arbitrary or unjustifiable discrimination” between Alducra and Runbeti, the measures do not violate

international law.132

In abstract, the taxation and labeling regulation in the 2019 statute is compatible with the chapeau of

Article X of ARTA. According to the principles of international law, a state may not, by invoking

domestic law, claim exemption of an international norm that it is bound to.133 For instance, the AB panel

in the Turtle-Shrimp case judged Section 609, enacted by the U.S., as compatible with the chapeau of

129 R. ¶ 26. 130 Shrimp-Turtle, ¶138, 141. 131 Id. ¶ 145. R. ¶ 28. 132 R. ¶ 13. 133 ARSIWA, art. 3, https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.

16

Article XX of GATT. Since the latter mirrors the chapeau of Article X of ARTA, the criteria outlined

by the AB to evaluate conformity will be applied between the analogous chapeau and the 2019 statute.

These criteria are: proportional deadlines for the transitional period and compliance with the principle

of balancing of rights.

i. Proportional deadlines for the transitional period constitute compliance to the chapeau. The 2019 statute does not constitute a means of “arbitrary or unjustifiable discrimination”, as prohibited

in the chapeau, because the given domestic legislation does not violate the chapeau, given that it

institutes proportional deadlines for the transitional period.134 On 1 December 2019, the statute was

already effective in Alducra. Contrastingly, Runbeti had until 29 August 2020 to transition to

sustainable agave farming methods.135

ii. The compatibility of the Statute with the principle of balancing of rights indicates conformity with the chapeau. Furthermore, the principle of balancing of rights in the chapeau is not hindered by the trade measures

in question. The right of Alducra to invoke exceptions b and g does not nullify the rights of Runbeti

under ARTA. This principle may be structured by the proportionality principle along with the principles

of good faith, the prohibition of abus de droit and reasonableness.136 The three standards for balancing

conflicting rights were met by Alducra.137 The adoption of sustainable farming methods is causally

connected or suitable to the objective of conserving LNBs.138 Furthermore, Alducra chose the least

restrictive measures to promote the policy goal, since this state could have banned the import of

tapagium. Rather, it only regulated taxes and labeling requirements as incentives.139 Furthermore, the

trade measures were proportional, strictu sensus. The possible transitory disadvantage of adapting to

alternative farming techniques is outweighed by the advantage of conserving a red listed vulnerable

134 Shrimp-Turtle, ¶ 174. 135 R. ¶ 26. 136 Erich Vranes, Trade and the Environment, Fundamental Issues in International Law, WTO Law, and Legal Theory 134 (2009). Shrimp-Turtle, ¶ 154, 158. 137 Schuster, supra at 53. 138 R. ¶ 15, 26; Shrimp-Turtle, ¶ 160. 139 A. ¶ 12; R. ¶ 26; Shrimp-Turtle, ¶ 171.

17

species and providing consumers access to accurate information with regards to environmental hazards

of consumer products.140

iii. The practice of Alducra, derivative of the Statue, conveys observance to the chapeau. In addition to accomplishing the normative requirements of the chapeau, Alducra also ensured that its

practice conformed to the chapeau of Article X. Contrastingly, in the Turtle-Shrimp case, the U.S. had

a dissenting practice.141 In order rule accordingly, the AB understood the duty to cooperate as a criteria

for analyzing U.S. practice.

Alducra seriously negotiated with Runbeti before instituting the trade restrictions. As stated in Principle

12 of the RD, states “should” cooperate and avoid unilateral commercial measures when addressing

environmental questions. However, they may resort to them once negotiations have failed. 142 The

Government of Alducra, between March and May 2019, seriously negotiated with Runbeti, however,

the latter dismissed the cause.143 Hence, the trade restrictions which only became effective on 29 August

2020, a year and a half after these negotiations, conform to the duty to cooperate.144

F. There are limits to addressing WTO decisions as subsidiary means of interpreting ARTA.

i. The findings in the Tuna – Dolphin II Case are scarcely applicable for interpreting ARTA.

In the Tuna-Dolphin II Case, the panel ruled against the legality of the US embargoes. This ruling was

based on the panel’s interpretation of Article XX of GATT, according to which the latter did not allow

trade measures executed to impel other States to modify their policies within their own jurisdictions

and that required such changes to be effective.� However, today145 the concept of sustainable

development is solid in international law, especially since the drafting of the Marrakesh Agreement.�

140 R. ¶ 14, 2. Axel Desmedt, Proportionality in WTO Law, 4 Journal of International Economic Law 446 (2001). Shrimp-Turtle, ¶ 153 and 155. UNGCP, art. 1, 29, 30, 49-62 and 91, https://unctad.org/topic/competition-and-consumer-protection/un-guidelines-on-consumer-protection. Tuna-Dolphin I, DS21/R, ¶ 4.6, 7.3. 141 Shrimp-Turtle, ¶ 166, 167. 142 R. ¶ 10; Shrimp-Turtle, ¶ 167. 143 R. ¶ 25. 144 R. ¶ 26. 145 Shrimp-Turtle, ¶ 133.

18

Thereby146 the interpretation of Article XX now includes extraterritorial trade measures, as verified in

the �Shrimp-Turtle case�. In addition, under the GATT solely and before the foundation of the WTO,

unless each party agreed to the panel report, its ruling are not mandatory. Consequently, if the panel

report had not been adopted by a consensus, the decision had no binding legal effects.147Hence, the

Tuna-Dolphin II Case has limited application to the present dispute and the trade measures of Runbeti

comply with ARTA, due to its anteriority to the concept of sustainable development and the institution

of the WTO.

. The findings in the Shrimp - Turtle Case are moderately applicableapplicable

The AB ruled against the legality of the U.S. embargoes especially due to this State’s lack of

cooperation.148 Diversely, Alducra did enter into serious negotiation, thus abiding to the duty to

cooperate.149 To this extent, the WTO decision against the U.S. has limited application to the present

dispute. However, the findings of the AB weigh more than those of the GATT panel and hence of

Dolphin-tuna II since they are more trustworthy and consistent, given that it is a standing body

composed by experts. 150 Although in case of disagreement of the DSB the rulings will not generate

binding interpretations or precedents, the subsequent panels still refers to previous decisions and are

always aligned with that.151

146 Schuster, supra at 9. Gabcikovo-Nagymaros, ¶ 140. MA, supra. Rio. Principle 1. UNFCCC. Art. 3.

148 Shrimp-Turtle, WT/DS58/AB/R, ¶ 166, 167. 149 R. ¶ 25 150 Article 17 (1) and (3) of the DSU. Ilona Cheyne ‘Trade and the Environment: the Future of Extraterritorial Unilateral Measures after the Shrimp Appellate Body’ (2000) 5 Web Journal of Current Legal Issues Introduction, available at http://webjcli.ncl.ac.uk/2000/issue5/cheyne5.html, 18 January 2012. 151 Mitsuo Matsushita The World Trade Organisation (2006) 2ed, 111, 112.

19

CONCLUSION AND PRAYER

Applicant, Federal States of Alducra, respectfully requests the ICJ to adjudge and declare that:

1. The Republic of Runbeti violated international law with respect to its WF project.

2. The Federal States of Alducra did not violate international law with respect to its trade

measures for tapagium products.

RESPECTFULLY SUBMITTED,

AGENTS OF THE APPLICANT.