TC - IN THE INTERNATIONAL COURT OF JUSTICE … - IN THE INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE, THE HAGUE, THE NETHERLANDS THE ST21 ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

TC -

IN THE INTERNATIONAL COURT OF JUSTICE

THE PEACE PALACE, THE HAGUE,

THE NETHERLANDS

THE 21STANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

MOOT COURT COMPETITION, 2016-17

2016 General List No. 170

QUESTIONS RELATING TO OCEAN FERTILIZATION AND MARINE

BIODIVERSITY

FEDERAL STATES OF AEOLIA

(APPLICANT)

V.

REPUBLIC OF RINNUCO

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT II

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................................. V

STATEMENT OF JURISDICTION .................................................................................. XII

QUESTIONS PRESENTED ............................................................................................. XIII

STATEMENT OF FACTS ................................................................................................ XIV

SUMMARY OF ARGUMENTS ......................................................................................... XV

ARGUMENTS ADVANCED .................................................................................................. 1

I. THE ICJ HAS NO JURISDICTION OVER THIS DISPUTE .................................... 1

A. THE DISPUTE IS NON-JUSTICIABLE ................................................................................ 2

B. THIS COURT DOES NOT HAVE JURISDICTION, RATIONE MATERIAE ............................. 2

1) There is no ‘real dispute’ under UNCLOS and CBD......................................... 2

a) No cause of action under UNCLOS ..................................................................... 3

b) No cause of action under CBD ............................................................................ 4

2) The focal point of this dispute is dealt with by London Protocol, under which

this Court does not have jurisdiction ............................................................................. 4

a) In the absence of jurisdiction over the ‘real issue’, Court cannot assume

jurisdiction over incidental claim .................................................................................. 4

b) Parties have not consented to extend this Court’s jurisdiction to disputes under

Article 288(1) to disputes arising under London Protocol ............................................ 5

c) Application of Lex Specialis Principle excludes the jurisdiction of this Court ... 6

d) CBD is not lex specialis ....................................................................................... 6

C. ASSUMING THIS COURT HAS JURISDICTION RATIONE MATERIAE, THE

JURISDICTIONAL REQUIREMENTS OF PART XV OF UNCLOS ARE NOT SATISFIED ............ 7

1) The parties have agreed to alternative means of dispute settlement under the

London Protocol ............................................................................................................... 7

a) The Parties have agreed to settle the dispute under the alternative dispute

settlement mechanism provided by the London Protocol .............................................. 7

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT III

b) Parties have agreed to exclude further procedure pertaining to compulsory

jurisdiction ..................................................................................................................... 7

2) Agreement to settle disputes that entail a binding decision is present ............. 8

3) In any case, Rinnuco has revoked its declaration submitting to the jurisdiction

of the Court under Article 287 ........................................................................................ 8

D. APPLICABILITY OF PART XV IS EXEMPTED .................................................................. 9

1) This Court does not have jurisdiction over disputes concerning the exercise by

a Coastal State of its sovereign rights or jurisdiction in its EEZ................................. 9

2) This Court does not have jurisdiction over marine scientific research activities

being conducted in Rinnuco’s EEZ ................................................................................ 9

a) Rinnuco’s Ocean Fertilization Project qualifies as Marine Scientific Research

10

b) The dispute concerns Rinnuco’s right to authorize and conduct marine scientific

research in its EEZ....................................................................................................... 10

E. JURISDICTIONAL REQUIREMENTS UNDER ARTICLE 27(3) OF CBD ARE NOT MET ... 10

II. RINNUCO HAS NOT VIOLATED INTERNATIONAL LAW BY CONDUCTING

THE OCEAN FERTILIZATION PROJECT ..................................................................... 11

A. RINNUCO HAS THE SOVEREIGN RIGHT TO CONDUCT THE OCEAN FERTILIZATION

EXPERIMENT IN ITS EEZ ..................................................................................................... 11

B. RINNUCO HAS NOT VIOLATED THE OBLIGATION TO PREVENT TRANSBOUNDARY HARM

UNDER TREATY AND CUSTOMARY LAW ............................................................................... 11

1) No damage has been caused to the territory of Aeolia ..................................... 12

2) No causal nexus has been established ................................................................ 12

a) There is no “clear and convincing” evidence to establish any nexus between

death of narwhals and Rinnuco’s ocean fertilization project ...................................... 13

b) In any case, even circumstantial evidence doesn’t establish nexus ................... 13

c) There are other possible contributing factors causing the death of narwhals .. 13

3) In any case, Rinnuco is not liable for damage resulting from transboundary

harm ............................................................................................................................... 14

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT IV

a) Rinnuco is not liable under the “Fault liability” regime .................................. 14

b) The “strict liability” regime does not apply to ocean fertilization .................... 14

C. RINNUCO HAS NOT VIOLATED ITS OBLIGATIONS UNDER THE PRECAUTIONARY

PRINCIPLE UNDER TREATY AND CUSTOMARY LAW............................................................. 15

1) Rinnuco has taken all reasonable measures to mitigate risks ......................... 15

a) Rinnuco has co-operated and consulted with the State of Aeolia regarding Ocean

Fertilization.................................................................................................................. 15

b) Rinnuco has fulfilled its obligations to conduct an EIA, as required under custom

and treaty law .............................................................................................................. 16

2) The precautionary principle does not entail a stoppage of the activity .......... 16

3) The provisions of the London Protocol relating to the undertaking of an

Assessment Framework do not refrain Rinnuco from conducting the project ........ 17

a) Resolutions ‘being soft law’ are not binding ..................................................... 17

b) In any case, Rinnuco has not assented to the assessment framework ............... 17

c) The provisions of Assessment Framework constitute an Empty Formality ....... 18

D. THE OCEAN FERTILIZATION PROJECT HAS NOT VIOLATED PROVISIONS RELATED TO

‘DUMPING’ ........................................................................................................................... 18

1) Ocean fertilization is not ‘dumping’ .................................................................. 19

a) Placement is not for ‘mere disposal’ ................................................................. 19

b) Placement is in accordance with the aims of UNCLOS and the London Protocol

............................................................................................................................ 19

2) Ocean fertilization carried out for purposes of Legitimate Scientific Research

is permitted ..................................................................................................................... 19

E. RINNUCO HAS NOT VIOLATED ITS DUTY TO CONSERVE THE MARINE ENVIRONMENT

AND BIODIVERSITY .............................................................................................................. 20

1) Rinnuco has complied with its obligations to protect marine biodiversity .... 20

2) Rinnuco has complied with its obligation to prevent, reduce and control

marine pollution ............................................................................................................. 21

PRAYER FOR RELIEF.................................................................................................... XVI

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT V

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT VI

TABLE OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention on Biological Diversity, June 6, 1992, 1760 U.N.T.S. 79.......................... 1, 11, 20

Convention on Environmental Impact Assessment in a Transboundary Context, Feb.25, 1991,

30 I.L.M. 802 ....................................................................................................................... 16

Convention on the Conservation of Migratory Species of Wild Animals, Jun.23, 1979, 1651

U.N.T.S. 333 ........................................................................................................................ 20

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

Other Matter (London) Nov. 7, 1996, 36 ILM 1 (1997) .......................................... 1, 4, 7, 18

STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, T.S. 993 (1945) ..................................... 1

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261 ........ passim

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331 ...................... 6

UNITED NATIONS AND OTHER DOCUMENTS

Articles on Preventing Transboundary Harm from Hazardous Activities, U.N. GAOR, 53rd

Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001) ...................................................... 11, 12, 15

C.B.D. Decision IX/16, UNEP/CBD/COP/DEC/IX/16 (Oct. 29, 2010) ................................... 6

C.B.D. Decision XI/20, UNEP/CBD/COP/DEC/XI/20 (Dec. 5, 2012) .................................... 6

CO2 Sequestration in Sub-Seabed Geological Formations, Report of the Twenty-Ninth

Consultative Meeting and the Second Meeting of Contracting Parties, I.M.O. Doc. LC 29/17

(Dec. 14, 2008) .................................................................................................................... 17

G.A. Res. 2995 (XXVII), U.N. GAOR, 27th Sess., 42, U.N. Doc. A/RES/2995 (1972) ........ 16

G. A. Res. 62/215, U.N. GAOR, 62nd Sess., U.N. Doc. A/Res/62/215 (Dec. 22, 2007) ........ 19

G.A. Res. 62/68, U.N. GAOR, 62nd Sess., U.N. Doc. A/RES/62/68 (Jan.8, 2008) ............... 12

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT VII

International Law Commission, Report of the International Law Commission on the Work of

its Fiftieth Session, U.N. GAOR, 53rd Sess., Supp. No. 10, Chp.VI, UN Doc. A/53/10 (1998)

................................................................................................................................................ 8

International Law Commission, Second Report on International Liability for Injurious

Consequences Arising out of Acts not Prohibited by International Law (Prevention of

Transboundary Damage from Hazardous Activities), by Mr. Pemmaraju Sreenivasa Rao,

Special Rapporteur, 2(1) Y.B. INT’L. L. COMM’N 111, UN Doc. A/CN.4/501, (1999) ....... 14

International Law Commission, Second Report on International Liability for Injurious

Consequences Arising out of Acts not Prohibited by International Law, by Mr. Julio

Barboza, Special Rapporteur, 2(1) Y. B. INT’L L. COMM’N. 145, UN Doc. A/CN.4/402,

(1986) ................................................................................................................................... 16

International Law Commission, Third Report on International Liability for Injurious

Consequences Arising out of Acts not Prohibited by International Law, by Mr. Robert Q.

Quentin-Baxter, Special Rapporteur, 2(1) Y.B. INT’L. L. COMM’N 51, U.N. Doc.

A/CN.4/360 and Corr. 1 (1982) ........................................................................................... 14

International Law Commission, Third report on the Law of the Non-Navigational Uses of

International Watercourses, by Mr. Stephen M. Schwebel, Special Rapporteur, U.N. GAOR,

34th Sess., UN Doc. A/CN.4/348 and Corr.1 (1982) ........................................................... 20

Report of the Thirtieth Consultative and the Third Meeting of Contracting Parties, IMO Doc

LC 30/16 (Dec. 9, 2008) ...................................................................................................... 19

Res. LC-LP.1 on the Regulation of Ocean Fertilization, I.M.O. Doc. LC 10/16/Annex 6 (Oct.

31, 2008) ................................................................................................................................ 4

Res. LC-LP.2 on the Assessment Framework for Scientific Research Involving Ocean

Fertilization, I.M.O. Doc. LC 32/15/Annex 6 (Oct. 14, 2010) .............................................. 4

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT VIII

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

for Ocean Fertilization and Other Marine Geoengineering Activities, I.M.O. Doc. LC 35/15,

Annex 4 (Oct. 18, 2013) .................................................................................................. 4, 17

Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (1992)

.............................................................................................................................................. 11

Stockholm Declaration on the Human Environment, U.N. Doc. A/CONF.48/14/Rev.1 (1973)

.............................................................................................................................................. 11

Study of the Relationship between the CBD and UNCLOS with Regard to the Conservation

and Sustainable Use of Genetic Resources on the Deep Seabed, UN Doc.

UNEP/CBD/SBSTTA/8/INF/3/Rev.1 ................................................................................... 9

I.C.J. AND P.C.I.J. JUDGMENTS

Anglo-Iranian Oil Co. (U.K. v. Iran), 1952 I.C.J. 93 (July 22) ................................................. 1

Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malay. v.

Sing.), 2003 I.T.L.O.S. 10 (Oct. 8) ...................................................................................... 18

Case concerning Questions of Interpretation and Application of the 1971 Montreal Convention

arising from the Aerial Incident at Lockerbie, Preliminary Objections, (Libya v. U.K.), 1998

I.C.J. 9 (Feb. 27) .................................................................................................................... 4

Case Concerning the Gabčikovo-Nagymaros Project (Hung./Slov.), 1997 I.C.J. 7 (Sept. 25)12

Corfu Channel (U.K. v. Alb.), Merits, 1949 I.C.J. 4 (Apr. 9) ............................................ 13, 14

Fisheries Jurisdiction Case (Spain v. Can.), 1998 I.C.J. 432 (Dec. 4) ....................................... 2

Judgments of the Administrative Tribunal of the ILO, Advisory Opinion, 1956 I.C.J. 77 (Oct.

23) .......................................................................................................................................... 3

Jurisdiction of European Commission of the Danube between Galatz and Braila, Advisory

Opinion, 1927 P.C.I.J. Ser. B, No. 14 (Dec. 8) ...................................................................... 6

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT IX

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (Jul 8)

................................................................................................................................................ 2

Mavromattis Palestine Concessions (Greece v. Gr.Brit.), 1924 P.C.I.J. Ser. A, No.2 (Aug. 30)

............................................................................................................................................ 2, 6

Nuclear Tests (Aus. v. Fr.), 1974 I.C.J. 253 (Dec. 20) .............................................................. 5

Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457 (Dec. 20) ............................................................ 12

Oil Platforms (Iran v U.S.), Preliminary Objection, 1996 I.C.J. 803 (Dec. 12) .................... 3, 4

Phosphates in Morocco Case (Italy v. Fr.), 1938 P.C.I.J. Ser. A/B, No.74 (June 14) ............... 5

Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 14 (Apr. 20) ....................... 11, 16

South West Africa (Ethiopia v. South Africa) (Preliminary Objections), 1962 I.C.J. 319 (Jul.18)

................................................................................................................................................ 2

Status of Eastern Carelia, Advisory Opinion, 1923 P.C.I.J. Ser. B, No.5 (July 23) .................. 1

Territorial Jurisdiction of International Commission on the River Oder (U.K. v. Pol.) 1929

P.C.I.J. Ser. A, No. 23 (Sept. 10) ......................................................................................... 12

OTHER JUDGMENTS

Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malay. v.

Sing.), 2003 I.T.L.O.S. 10 (Oct. 8) ...................................................................................... 18

Case concerning the difference between New Zealand and France concerning the interpretation

or application of two agreements concluded on 9 July 1986 between the two States and which

related to the problems arising from the Rainbow Warrior affair, (1990) 20 U.N.R.I.A.A.

215 (Apr. 30) ........................................................................................................................ 18

Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), Award on Jurisdiction and

Merits, 2015 I.C.G.J. 486 (Mar. 18) ...................................................................................... 5

Cinnamond v. British Airports Authority, [1980] 2 All E.R. 368 (Eng. C.A.)........................ 18

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT X

De Jong,, Baljet and Van Den Brink v. The Netherlands, Eur. Ct. H.R. Ser. A No. 77 (1984) ..

................................................................................................................................................ 6

Indus Waters Kishenganga Arbitration (Pak. v. India), 2013 I.C.G.J. 478 (PCA, Dec. 20) ..... 2

Island of Palmas (Neth./U.S.A), 1928 R.I.A.A 829 (Apr. 4) ................................................... 12

Lake Lanoux Arbitration (Fr. v. Sp.), 12 R.I.A.A. 281 (1957) .......................................... 15, 16

M.C. Mehta v. Union of India, [1999] 6 S.C.C. 237 ............................................................... 18

MOX Plant Case (Ir. v. U.K.), 126 I.L.R. 310 (2003) ............................................................. 15

R. v. Governors of Haberdashers’ Aske’s Hatcham College Trust Ex p. T., [1995] E.L.R. 350

(Q. B. 1994) ......................................................................................................................... 18

Southern Bluefin Tuna (Austl. & N.Z. v. Japan), 23 R.I.A.A. 1 (2000)................................ 7, 8

Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1938 & 1941) .................. 12, 13, 14

BOOKS AND TREATISES

1 L. OPPENHEIM, INTERNATIONAL LAW (5th ed. 1955) ............................................................. 14

5 NORDQUIST ET. AL., THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A

COMMENTARY (2002) ..................................................................................................... 2, 5, 9

BIRNIE ET. AL., INTERNATIONAL LAW AND THE ENVIRONMENT (2nd ed. 2004) ............... 4, 5, 14

D. P. O’CONNELL, INTERNATIONAL LAW (1970) ........................................................................ 5

IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW (2003) ..................................... 11

IAN BROWNLIE, STATE RESPONSIBILITY (1983) ....................................................................... 14

JOHN COLLIER AND VAUGHAN LOWE, THE SETTLEMENT OF DISPUTES IN INTERNATIONAL LAW

(2000) ..................................................................................................................................... 9

JORGE E. VINUALES, THE RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT: A

COMMENTARY (2015) ............................................................................................................. 3

NATALIE KLEIN, DISPUTE SETTLEMENT IN THE UN CONVENTION ON THE LAW OF THE SEA

(2004) ..................................................................................................................................... 9

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XI

PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2nd ed. 2003) ...........

.................................................................................................................................. 11, 14, 17

R. JENNINGS AND A. WATTS (eds.), OPPENHEIM’S INTERNATIONAL LAW (9th ed. 1992) ........... 5

RENATA SZAFARZ, THE COMPULSORY JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE

(1993) ..................................................................................................................................... 1

SHABTAI ROSENNE, THE WORLD COURT: WHAT IT IS AND HOW IT WORKS (3rd ed., 1975) ..... 1

SHAW, PUBLIC INTERNATIONAL LAW (7th ed. 2014) ............................................................... 11

SIMON MARR, THE PRECAUTIONARY PRINCIPLE IN THE LAW OF THE SEA (2003) ..................... 15

TANYA SHADBOLT, BREAKING THE ICE: INTERNATIONAL TRADE IN NARWHALS IN THE CONTEXT

OF A CHANGING ARCTIC (2005) ........................................................................................... 13

THE OXFORD HANDBOOK OF INTERNATIONAL ENVIRONMENTAL LAW (Daniel Bodansky et. al.,

eds. 2007) ............................................................................................................................. 21

YOSHIFUMI TANAKA, THE INTERNATIONAL LAW OF THE SEA (2nd ed. 2015) ........................... 3

ARTICLES, ESSAYS AND JOURNALS

Alfred P. Ruben, The International Legal Effects of Unilateral Declarations, 71(1) AM. J. INT’L

L. 1 (1977) ............................................................................................................................. 8

Bernard H Oxman, Complementary Agreements and Compulsory Jurisdiction, 95

AM.J.INT’L.L 277 (2001) ....................................................................................................... 7

Cyril De Klemm, Migratory Species In International Law, 29 NAT. RESOURCES J. 935 (1994)

.............................................................................................................................................. 12

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

MAR. ECOL. PROG. SER. 227 (2008) ..................................................................................... 19

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

IOC/UNESCO, (IOC/BRO/2010/2) .................................................................................... 13

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XII

G Handl, State Liability for Accidental Transnational Environmental Damage by Private

Person, 74 AM. J. INT’L L. 525 (1980) ................................................................................. 14

Karen N. Scott, International Law in the Anthropocene: Responding to the Geoengineering

Challenge, 34 MICH. J. INT'L L. 309 (2013) ......................................................................... 19

Kim Jung Eun, International Liability Regime for Regulation of Marine Geoengineering

(ASIAN SOC’Y INT’L L Working Paper No. 8, 2012) ............................................................ 14

Pierre-Marrie Dupoy, Soft Law and the International Law of the Environment, 12 MICH. J.

INT’L. L. 420 (1991) ............................................................................................................. 17

R. R. Churchill and G. Ulfstein, Autonomous Institutional Arrangements in Multilateral

Agreements, 94 AM. J. INT’L L. 623 (2000) ......................................................................... 21

Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4:

Treaty Interpretation and Other Treaty Points, 33 BRIT. Y.B. INT'L L. 236 (1957) .............. 5

OTHER SOURCES

Rebecca Lindsey and Michon Scott, What are Phytoplankton? (July 13, 2010),

http://earthobservatory.nasa.gov/Features/Phytoplankton/page2.php ................................. 21

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XIII

STATEMENT OF JURISDICTION

The Governments of the State of Aeolia and the Republic of Rinnuco, being parties to CBD

and UNCLOS have recognized the jurisdiction of the International Court of Justice in

accordance with Article 287 of UNCLOS and Article 27(3) of CBD read with Article 36,

paragraph 1 of the Statute of ICJ.

Rinnuco objects to this Court's jurisdiction on several grounds. It observes that dispute

primarily arises under the London Protocol, under which Rinnuco has not agreed to submit

the dispute to this Court. Additionally, this matter does not arise under UNCLOS and CBD.

In any case, Rinnuco has revoked its declaration under Article 287 of UNCLOS.

Accordingly, Rinnuco requests that the Court decline jurisdiction.

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XIV

QUESTIONS PRESENTED

I.

WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION TO

DETERMINE THE PRESENT MATTER.

II.

WHETHER RINNUCO HAS VIOLATED INTERNATIONAL LAW BY

CONDUCTING THE INITIAL PHASE OF ITS OCEAN FERTILIZATION IN MUKTUK

OCEAN AND THAT ANY RE-INITIATION OF ITS PROJECT WOULD VIOLATE

INTERNATIONAL LAW.

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XV

STATEMENT OF FACTS

Aeolia and Rinnuco are two developed and neighboring coastal states located near Greenland

(R.¶1). On 5th January 2014, Rinnuco implemented its ocean fertilization project after

notifying Aeolia regarding this project, further Rinnuco has conducted an extensive EIA

regarding the adverse impacts of the project pursuance to inviting Aeolia and the public to

participate in the said EIA (R.¶¶12, 13).

This project is authorized under Article 246 of UNCLOS to conduct marine scientific research

for the purposes of reducing adverse impact of climate change (R.¶12).

On 22nd April 2015, nine dead narwhals were found off the coast of Rinnuco. Rinnuco has

allowed Aeolia to conduct necropsies of these narwhals. However, the results were

inconclusive as to the cause of death. Despite of inconclusive evidence, Aeolia has sent a

diplomatic note to Rinnuco attributing the cause of death of these narwhals to the ocean

fertilization project and asked them to terminate the remainder of the project (R.¶20).

Rinnuco, in response maintained its stance that its ocean fertilization project is not in violation

of any international law (R.¶21).

In disregard to Rinnuco’s refusal to submit this dispute to the ICJ, Aeolia has initiated

proceedings before this court under Article 287 of UNCLOS and Article 27 of CBD (R.¶22).

After considering the preliminary objections of Rinnuco, in pursuance with Article 79(10) of

the Rules of ICJ, this court has decided to deal with this case, wherein the issue of jurisdiction

and merits will be dealt simultaneously.

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XVI

SUMMARY OF ARGUMENTS

ISSUE 1

This Court does not have jurisdiction to deal with the present dispute since it is not legally

justiciable. In any case, the dispute does not arise under CBD and UNCLOS, falling primarily

under London Protocol, for which ICJ is not the chosen forum for dispute settlement. Even if

the dispute arises under CBD and UNCLOS, the jurisdictional requirements under the

respective treaties have not been satisfied.

ISSUE 2

Rinnuco is not in violation of international law, as it has the sovereign right to conduct ocean

fertilization within its EEZ. Further Rinnuco has effectively fulfilled its obligations under

customary law, regarding transboundary harm and precautionary principle and its obligations

under London Protocol, CBD, UNCLOS and other relevant treaties.

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 1

ARGUMENTS ADVANCED

I. THE ICJ HAS NO JURISDICTION OVER THIS DISPUTE

It is well established that the jurisdiction of the Court to decide a case on merits depends upon

the will of the parties.1 This fundamental concept correlates with the principle of state

sovereignty, therefore, the decision to confer jurisdiction to the court is necessarily a deliberate

political decision.2

A State may accept ICJ’s jurisdiction by being a party to a treaty that conveys jurisdiction on the

Court.3 Pursuant to the written declarations submitted by both parties4, Aeolia alleges jurisdiction,

under Article 27 of the CBD,5 as well as Article 287 of UNCLOS.6 Although Rinnuco is a party

to both CBD and UNCLOS, this Court does not have jurisdiction under either of these treaties.

Moreover, the dispute primarily arises under the London Protocol,7 under which the Parties have

not agreed to this Court’s jurisdiction.8

1 Anglo-Iranian Oil Co. (U.K. v. Iran), 1952 I.C.J. 93, 102-03 (July 22); Status of Eastern Carelia, Advisory

Opinion, 1923 P.C.I.J. Ser. B, No.5, at 27 (July 23).

2 RENATA SZAFARZ, THE COMPULSORY JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE 3 (1993);

SHABTAI ROSENNE, THE WORLD COURT: WHAT IT IS AND HOW IT WORKS 65 (3rd ed., 1975).

3 STATUTE OF THE INTERNATIONAL COURT OF JUSTICE, art. 36 ¶1, T.S. 993 (1945).

4 R.¶¶6, 9.

5 Convention on Biological Diversity, art. 27, June 6, 1992, 1760 U.N.T.S. 79 [CBD].

6 United Nations Convention on the Law of the Sea, art.287, Dec. 10, 1982, 21 I.L.M. 1261 [UNCLOS].

7 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter

(London) Nov. 7, 1996, 36 ILM 1 (1997) [London Protocol].

8 R.¶7.


A. THE DISPUTE IS NON-JUSTICIABLE

In order to determine the question of jurisdiction, it is necessary that this Court address the

preliminary question of existence of a ‘legal dispute’.9 A dispute is a disagreement on a point of

law or fact, a conflict of legal views or of interests.10 In ascertaining whether there is a legal

dispute, the Court shall look for the essence of the dispute.11 At the core of this dispute is a

disagreement over the evaluation of scientific evidence concerning the impact of the ocean

fertilization project on the marine ecosystem. These are questions of scientific policy which are

not susceptible to legal judgment.

The courts have previously rejected jurisdiction on the basis that it would assume the role of

policymaker in determining the balance between acceptable environmental change and other

priorities.12

B. THIS COURT DOES NOT HAVE JURISDICTION, RATIONE MATERIAE

Aeolia has invoked Article 287 of UNCLOS and Article 27 of CBD to establish jurisdiction of

this court. It is submitted that this Court does not have jurisdiction ratione materiae for the

following reasons:

1) There is no ‘real dispute’ under UNCLOS and CBD

Aeolia alleges breach of Articles 64, 65, 192, 194 and 210 of UNCLOS and Articles 3, 8 and 14

of CBD.13 In order to determine the jurisdiction of the Tribunal, it is necessary to ascertain

9 5 NORDQUIST ET. AL., THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY 43

(2002).

10 South West Africa (Ethiopia v. South Africa) (Preliminary Objections), 1962 I.C.J. 319, 328 (Jul.18);

Mavromattis Palestine Concessions (Greece v. Gr.Brit.), 1924 P.C.I.J. Ser. A, No.2, at 11 (Aug. 30).

11 Fisheries Jurisdiction Case (Spain v. Can.), 1998 I.C.J. 432, 450 (Dec. 4).

12 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (Jul 8); Indus Waters

Kishenganga Arbitration (Pak. v. India), 2013 I.C.G.J. 478 (PCA, Dec. 20).

13 R.¶20.


whether the provisions invoked appear to have a substantial and not merely an artificial

connection.14 References to these provisions in the Statement of Claim and diplomatic notes are

abstract in nature and do not indicate a genuine relationship between the complaint and the

provisions invoked. Hence there is no real dispute under UNCLOS or CBD. In any case, no cause

of action arises under UNCLOS or CBD.

a) No cause of action under UNCLOS

Articles 64 and 65 impose on States, general duties to cooperate with each other in relation to

highly migratory species15 and marine mammals.16 The normativity of Article 64(1) remains

preambulatory,17 as it contains no specific mechanism for ensuring co-operation in this matter.18

Allegations based on the remaining provisions19 of UNCLOS would not result in any legal

dispute, as they are merely directory in nature. In any case, these obligations will be superseded

by those contained in other specific conventions like the London Protocol.20

Additionally, UNCLOS, adopted in 1982, was negotiated before the emergence of the

precautionary principle.21 Therefore, Aeolia’s claim on this basis does not stand.

14 Judgments of the Administrative Tribunal of the ILO, Advisory Opinion, 1956 I.C.J. 77, 89 (Oct. 23).

15 UNCLOS, supra note 6, art.64.

16 UNCLOS, supra note 6, art. 65.

17 Oil Platforms (Iran v U.S.), Preliminary Objection, 1996 I.C.J. 803, 813 (Dec. 12).

18 YOSHIFUMI TANAKA, THE INTERNATIONAL LAW OF THE SEA 240 (2nd ed. 2015).

19 UNCLOS, supra note 6, arts.192, 194, 210.

20 UNCLOS supra note 6, art. 237.

21 JORGE E. VINUALES, THE RIO DECLARATION ON ENVIRONMENT AND DEVELOPMENT: A COMMENTARY 414

(2015).


b) No cause of action under CBD

The allegation of transboundary harm embodied under Article 3 of CBD is unsubstantiated, as

no evidence has been adduced in support of the same.22

Articles 8 and 14 require parties to undertake a few measures to preserve in situ conservation of

biodiversity and to introduce appropriate procedures requiring EIA as far as possible and

appropriate. By using vague terms and leaving much detail to the individual judgment of state

parties, Articles 8 and 14 do not create any precise obligations.23

Jurisdiction of the Court cannot be based on the interpretation or application of preambulatory

provisions of a treaty.24 Hence, this Court does not have jurisdiction.

2) The focal point of this dispute is dealt with by London Protocol, under which this

Court does not have jurisdiction

The artificial reformulation and description of a dispute arising under the London Protocol in

terms of UNCLOS or CBD provisions, is not sufficient to convert this matter into a genuine

dispute under the latter. Such a conversion is an artifice that ought not to beguile this Court.25

Those facts and situations which constitute the real cause must be determined.

a) In the absence of jurisdiction over the ‘real issue’, Court cannot assume jurisdiction over

incidental claim

The subject matter of the present dispute is ocean fertilization, which is directly and extensively

dealt under London Protocol26 and its Resolutions.27 Further, the diplomatic notes show that the

22 R.¶20.

23 BIRNIE ET. AL., INTERNATIONAL LAW AND THE ENVIRONMENT 575 (2nd ed. 2004).

24 Oil Platforms case, supra note 17.

25 Lockerbie case, Preliminary Objections, (Libya v. U.K.), 1998 I.C.J. 9, 102 (Feb. 27) (Dissenting Opinion of

Judge Jennings).

26 London Protocol, supra note 7, art. 3.1, 3.3, 4.

27 Res. LP.4(8) on the Amendment to the London Protocol to Regulate the Placement of Matter for Ocean

Fertilization and Other Marine Geoengineering Activities, I.M.O. Doc. LC 35/15, Annex 4 (Oct. 18, 2013); Res.

LC-LP.2 on the Assessment Framework for Scientific Research Involving Ocean Fertilization, I.M.O. Doc. LC


core of this dispute lies in the disagreement concerning whether ocean fertilization constitutes

ocean dumping or legitimate scientific research, while the issue regarding conservation of marine

ecosystem is merely ancillary. An incidental connection between the dispute and some matter

regulated by the Convention is insufficient to bring the dispute, as a whole, within the ambit of

Article 288(1).28 Since the London Convention and its 1996 Protocol are the primary conventions

on dumping,29 this dispute is and must necessarily be a dispute concerning the interpretation or

application of the London Protocol and not a dispute concerning the interpretation or application

of UNCLOS or CBD.

b) Parties have not consented to extend this Court’s jurisdiction to disputes under Article

288(1) to disputes arising under London Protocol

Jurisdictional clauses must on no account be interpreted in such a way as to exceed the intention

of States that subscribed to it.30 For extending the jurisdiction of any court functioning under

Article 287 beyond disputes relating to the interpretation or application of the UNCLOS, three

requirements must be fulfilled: an international agreement, relation to some aspect of the law of

the sea, and an express agreement for submission to any court or tribunal functioning under

Article 287.31 Although London Protocol is one such related agreement, the parties have not

expressly agreed to submit disputes arising under the London Protocol to this Court under Article

287. The clear words of the compromissory clauses indicate that the important requirement of

consent for this Court’s jurisdiction is not present.

32/15/Annex 6 (Oct. 14, 2010); Res. LC-LP.1 on the Regulation of Ocean Fertilization, I.M.O. Doc. LC

10/16/Annex 6 (Oct. 31, 2008).

28 Nuclear Tests (Aus. v. Fr.), 1974 I.C.J. 253, 263 (Dec. 20); Chagos Marine Protected Area Arbitration

(Mauritius v. U.K.), Award on Jurisdiction and Merits, 2015 I.C.G.J. 486 (Mar. 18).

29 BIRNIE ET. AL., supra note 23, at 357.

30 Phosphates in Morocco Case (Italy v. Fr.), 1938 P.C.I.J. Ser. A/B, No.74, at 23-24 (June 14).

31 NORDQUIST ET. AL., supra note 9, at 46.


c) Application of Lex Specialis Principle excludes the jurisdiction of this Court

UNCLOS is lex generalis and the London Protocol is lex specialis.32 In such circumstances lex

specialis prevails over lex generalis. This principle, which is a general principle of law

recognized by all legal systems,33 also extends to the procedural provisions of the lex specialis,

including those relating to the settlement of disputes.34 Furthermore, international agreements

expressly permitted by the UNCLOS prevail over the provisions of UNCLOS.35 Hence, this Court

does not have jurisdiction under the London Protocol.

d) CBD is not lex specialis

Although, several CBD decisions relate to ocean fertilization.36 They have recognised the primacy

of the London Protocol regarding the regulation of ocean fertilization project.37 This is in

consistency with the lex posterior rule.38

32 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 1951-4: Treaty

Interpretation and Other Treaty Points, 33BRIT. Y.B. INT'L L. 236, 236 (1957); R. JENNINGS AND A. WATTS (eds.),

OPPENHEIM’S INTERNATIONAL LAW 1280 (9th ed. 1992); D. P. O’CONNELL, INTERNATIONAL LAW 12-13 (1970).

33 Jurisdiction of European Commission of the Danube between Galatz and Braila, Advisory Opinion, 1927

P.C.I.J. Ser. B, No. 14, at 23 (Dec. 8); De Jong,, Baljet and Van Den Brink v. The Netherlands, Eur. Ct. H.R. Ser.

A No. 77 (1984).

34 Mavromattis, supra note 10, at 30-31.


36 C.B.D. Decision XI/20, UNEP/CBD/COP/DEC/XI/20 (Dec. 5, 2012); C.B.D. Decision IX/16,

UNEP/CBD/COP/DEC/IX/16 (Oct. 29,2010).

37 C.B.D. Decision IX/16, id.

38 Vienna Convention on the Law of Treaties, art. 30(3), May 23, 1969, 1155 U.N.T.S. 331.


C. ASSUMING THIS COURT HAS JURISDICTION RATIONE MATERIAE, THE

JURISDICTIONAL REQUIREMENTS OF PART XV OF UNCLOS ARE NOT SATISFIED

1) The parties have agreed to alternative means of dispute settlement under the London

Protocol

Parties can ‘at any time’ agree to depart from the provisions of Part XV and agree to use instead

‘any peaceful means of their own choice.’39 Article 281 provides that the compulsory jurisdiction

will apply where no settlement has been reached by recourse to means of the Parties’ own choice

and the agreement between the Parties does not ‘exclude any further procedure’.40

a) The Parties have agreed to settle the dispute under the alternative dispute settlement

mechanism provided by the London Protocol

Under Article 16, the parties have agreed to submit the disputes arising under the London

Protocol to arbitration.41 Since both the states have agreed to an alternative dispute settlement

mechanism, this should prevail over the compulsory jurisdiction of UNCLOS. When the dispute

between the parties is the same under UNCLOS and the London Protocol, Article 16 of the

London Protocol will constitute an agreement for alternative settlement of dispute under

UNCLOS, notwithstanding the fact that it expressly refers only to a dispute concerning the

interpretation or application of the London Protocol and not that of UNCLOS.42 Since Parties'

have not exhausted this mechanism to reach a settlement, Article 281 does not apply.

b) Parties have agreed to exclude further procedure pertaining to compulsory jurisdiction

The Parties’ act of concluding Article 16 of the London Protocol is tantamount to an agreement

excluding further procedure notwithstanding the absence of an express statement by the parties

39 UNCLOS supra note 6, art.279, 280.

40 Bernard H Oxman, Complementary Agreements and Compulsory Jurisdiction, 95 AM.J.INT’L.L 277, 292

(2001).

41 London Protocol, supra note 7, art. 16.

42 Southern Bluefin Tuna (Austl. & N.Z. v. Japan), 23 R.I.A.A. 1, 42 ¶54 (2000) [SBT Award].


to this effect.43 Since the arbitral award rendered under Article 16 of the London Protocol is

binding and without appeal,44 this Court does not have compulsory jurisdiction under Article 287,

thereby satisfying the third condition.

2) Agreement to settle disputes that entail a binding decision is present

Article 282 of UNCLOS provides that, if there is a procedure open to the parties that entails a

binding decision, such procedure would apply in lieu of UNCLOS procedures.45 In the present

case, the parties have agreed under Article 16 to settle disputes by way of arbitration, which is

final and binding upon parties. The procedure under Article 16 shall apply, notwithstanding the

fact that the London Protocol does not expressly refer only to a dispute concerning the

interpretation or application of the UNCLOS.46 Since the requirements of Article 282 are

satisfied, the procedure chosen under Article 16 of the London Protocol shall apply in lieu of

UNCLOS procedures.

3) In any case, Rinnuco has revoked its declaration submitting to the jurisdiction of the

Court under Article 287

The legal relations created by a unilateral promise are not reciprocal in nature. Such a promise

should be presumed to be revocable at will by the State which made it.47 Accordingly, Rinnuco

has revoked its declaration under Article 287 by which it had submitted to the jurisdiction of the

court. Hence, this Court cannot deal with this case.

43Id. at 43 ¶¶56-57.

44 London Protocol, supra note 7, art. 9, annex 3.


46 SBT Award, supra note 42, at 43 ¶¶56-57.

47 International Law Commission (ILC), Report of the International Law Commission on the Work of its Fiftieth

Session, U.N. GAOR, 53rd Sess., Supp. No. 10, Chp.VI, at 58 ¶185, UN Doc. A/53/10 (1998); Alfred P. Ruben,

The International Legal Effects of Unilateral Declarations, 71(1) AM. J. INT’L L. 1 (1977).


D. APPLICABILITY OF PART XV IS EXEMPTED

1) This Court does not have jurisdiction over disputes concerning the exercise by a

Coastal State of its sovereign rights or jurisdiction in its EEZ

Questions directly related to the territorial integrity of States are exempted from the compulsory

jurisdiction set out in Section 2 of Part XV,48 except those listed in sub-paragraphs (a)-(c) of

Article 297 (1).49

The Applicant claims that the present dispute falls under the exception contained in sub-

paragraph (c). The scope of Article 297 (1) (c) is limited to an allegation by the Flag State that a

Coastal State’s law on the protection and preservation of marine environment is in contravention

of internationally adopted rules and standards.50 The subject-matter of the present dispute is

Rinnuco’s act of implementing the ocean fertilization project and not Rinnuco’s law on the

protection and preservation of marine environment. Hence, this court does not have jurisdiction.

2) This Court does not have jurisdiction over marine scientific research activities being

conducted in Rinnuco’s EEZ

Article 297(2) of UNCLOS specifically denies the jurisdiction to ICJ over cases concerning the

exercise by the coastal state of a right to regulate, authorize and conduct marine scientific research

in its EEZ.51

48 UNCLOS supra note 6, art. 297 (1).

49 UNCLOS, supra note 6, art. 297(1); JOHN COLLIER AND VAUGHAN LOWE, THE SETTLEMENT OF DISPUTES IN

INTERNATIONAL LAW 92 (2000).

50 NORDQUIST ET AL., supra note 9, at 85; NATALIE KLEIN, DISPUTE SETTLEMENT IN THE UN CONVENTION ON THE

LAW OF THE SEA 121 (2004).

51 R.¶9.


a) Rinnuco’s Ocean Fertilization Project qualifies as Marine Scientific Research

Marine scientific research could be defined as an activity that involves collection and analysis of

information, data or samples aimed at increasing humankind's knowledge of the environment.52

Rinnuco’s ocean fertilization project is marine scientific research as it seeks to reduce the adverse

impacts of climate change on the marine ecosystem and biodiversity of the Muktuk Ocean.53

b) The dispute concerns Rinnuco’s right to authorize and conduct marine scientific

research in its EEZ

Admittedly, Rinnuco’s ocean fertilization project is authorized under Article 246.54 Since it is a

question of Rinnuco’s right to conduct marine scientific research in its EEZ, this dispute is

exempted under Article 297(2)(a) from the jurisdiction under Article 287.

E. JURISDICTIONAL REQUIREMENTS UNDER ARTICLE 27(3) OF CBD ARE NOT MET

As already elucidated above, the present dispute does not arise under CBD and the Applicant’s

allegations regarding Rinnuco’s violation of provisions of CBD are unsubstantiated, as no

evidence has been adduced in support of the same.55 Therefore, this Court does not have

jurisdiction ratione materiae as the present dispute is not a dispute concerning the interpretation

or application of CBD.

52 Study of the Relationship between the CBD and UNCLOS with Regard to the Conservation and Sustainable

Use of Genetic Resources on the Deep Seabed, UN Doc. UNEP/CBD/SBSTTA/8/INF/3/Rev.1.

53 R.¶12.

54 R.¶21.

55 R.¶20.


II. RINNUCO HAS NOT VIOLATED INTERNATIONAL LAW BY

CONDUCTING THE OCEAN FERTILIZATION PROJECT

Rinnuco, in conducting the ocean fertilization project, has complied with all its obligations under

treaty, customary as well as other subsidiary sources of law.

A. RINNUCO HAS THE SOVEREIGN RIGHT TO CONDUCT THE OCEAN FERTILIZATION

EXPERIMENT IN ITS EEZ

States have permanent sovereignty over their natural resources, pursuant to their environmental

policies.56 UNCLOS in specific gives States the sovereign right to conduct ocean fertilization

project in their EEZ.57 The ocean fertilization activity was and is to be conducted entirely within

Rinnuco’s EEZ and therefore forms part of Rinnuco’s internal affairs.

A necessary corollary to this right is the freedom in domestic affairs, provided the interests of no

other State are violated.58 As would be understood from the subsequent arguments, no such

damage has been caused to the territory of Aeolia as a result of the ocean fertilization experiment.

Hence Rinnuco’s sovereign right to exploit its own resources should not be impaired.

B. RINNUCO HAS NOT VIOLATED THE OBLIGATION TO PREVENT TRANSBOUNDARY HARM

UNDER TREATY AND CUSTOMARY LAW

The duty not to cause transboundary harm obliges a State to ascertain that activities within its

territory do not cause harm to other States.59 It is a principle of treaty law60 as well as customary

56 Rio Declaration on Environment and Development, prin. 2, U.N. Doc. A/CONF.151/5/Rev.1 (1992); PHILIPPE

SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 236 (2nd ed. 2003).


58 SHAW, PUBLIC INTERNATIONAL LAW 211 (7th ed. 2014); IAN BROWNLIE, PRINCIPLES OF PUBLIC

INTERNATIONAL LAW 290 (2003).

59 Rio Declaration, supra note 56, princ. 2; Stockholm Declaration on the Human Environment, prin. 21, U.N.

Doc. A/CONF.48/14/Rev.1 (1973); Articles on Preventing Transboundary Harm from Hazardous Activities, art.

2, U.N. GAOR, 53rd Sess., Supp. No. 10, U.N. Doc. A/56/10 (2001).

60 CBD supra note 5, art. 3; UNCLOS, supra note 6, art. 194(2).


international law.61 Rinnuco’s conduct of the ocean fertilization project is consistent with this

principle of international law.

1) No damage has been caused to the territory of Aeolia

Narwhals travel between the EEZ’s of Aeolia and Rinnuco and are highly migratory species.62

The narwhals being shared resources are not under the absolute sovereignty of either of the two

States.63 Hence the harm to the Narwhals cannot constitute harm to the territory of Aeolia.

Further, the traditional context for transboundary harm requires the harm to be crossing territorial

borders.64 The harm, even if it did occur because of the ocean fertilization, took place in Rinnuco’s

territory as the narwhals were found dead on the shores of Rinnuco.65 The essential requirement

of transboundary harm has thus not been fulfilled.

2) No causal nexus has been established

One of the major requirements of transboundary harm as required by treaty law as well as

international jurisprudence is that of a causal nexus, i.e. a link between the activity and the

damage caused.66

61 Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 14, 55 ¶101 (Apr. 20); Trail Smelter Arbitration

(U.S. v. Can.), 3 R.I.A.A. 1905 (1938 & 1941).

62 UNCLOS, supra note 6, annex I.

63 Cyril De Klemm, Migratory Species in International Law, 29 NAT. RESOURCES J. 935, 949 (1994).

64 G.A. Res. 62/68, art.2(c), U.N. GAOR, 62nd Sess., U.N. Doc. A/RES/62/68 (Jan.8, 2008); Stockholm

Declaration, supra note 59, prin.21.

65 R.¶20.

66 Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457 (Dec. 20) [Nuclear Tests II]; Territorial Jurisdiction of International

Commission on the River Oder (U.K. v. Pol.) 1929 P.C.I.J. Ser. A, No. 23 (Sept. 10).


a) There is no “clear and convincing” evidence to establish any nexus between death of

narwhals and Rinnuco’s ocean fertilization project

The transboundary damage must be ascertained by clear and convincing evidence through

numerous records, statistics, testimonies etc.67 Aeolia has adduced no evidence to prove that there

is any causal link between the ocean fertilization project and the death of the nine narwhals. Even

necropsies conducted by their research institute were inconclusive in establishing Rinnuco’s

liability.68 To date, no damage to the marine ecosystem has been conclusively attributed to ocean

fertilization.69 Hence the allegations of transboundary harm are unsubstantiated.

b) In any case, even circumstantial evidence doesn’t establish nexus

In certain cases, where direct proof cannot be presented as a result of the obstacles placed by the

sovereignty of other States, the Court permits the submission of circumstantial evidence.70 In the

present case, circumstantial evidence should not be considered as Rinnuco handed over the nine

narwhals to the State of Aeolia71 thereby eliminating any such impediment. However, even if the

Court were to consider circumstantial evidence, the facts presented by Aeolia would not

substantiate a causal nexus.

c) There are other possible contributing factors causing the death of narwhals

The presence of multiple contributing factors to the resultant damage negates the establishment

of a causal nexus.72 In the present case, there could have been various reasons for the death of the

67 Case Concerning the Gabčikovo-Nagymaros Project (Hung./Slov.), 1997 I.C.J. 7 (Sept. 25); Trail Smelter

Arbitration, supra note 61, at 1964; Articles on Transboundary Harm, supra note 59, art. 1, comm. 17.

68 R.¶20.

69 DWR Wallace et. al., Ocean Fertilization: A Scientific Summary for Policy Makers, IOC/UNESCO,

(IOC/BRO/2010/2), at 10.

70 Corfu Channel (U.K. v. Alb.), Merits, 1949 I.C.J. 4, 18 (Apr. 9).

71 R.¶20.

72 Trail Smelter, supra note 61, at 1965.


narwhals, which includes hunting, shipping, commercial fisheries, industries, tourism, and noise

disturbance from these activities.73 As no evidence has been provided to preclude the above

possibilities, Aeolia has failed to establish a nexus.

3) In any case, Rinnuco is not liable for damage resulting from transboundary harm

a) Rinnuco is not liable under the “Fault liability” regime

Fault liability requires that a conduct be proved as intentional, negligent or reckless in order to

impute liability.74 Under this regime the State is not an absolute guarantor of the prevention of

harm, and compliance with due diligence negates all liability.75 Rinnuco has complied with all

and any due diligence obligations and hence cannot be held liable for harm caused by the ocean

fertilization project, if there is any.

b) The “strict liability” regime does not apply to ocean fertilization

Strict liability is not accepted as a general rule of international law.76 The general applicability of

strict liability was concluded to be an unwarranted intrusion upon the liberty of action of

sovereign States,77 except by way of mutual agreement.78 Only ultra-hazardous activities are

identified as a distinct category for which strict liability is an exceptional principle.79 As ocean

73 TANYA SHADBOLT, BREAKING THE ICE: INTERNATIONAL TRADE IN NARWHALS IN THE CONTEXT OF A CHANGING

ARCTIC 12 (2005).

74 Corfu Channel, supra note 70, at 72 (Dissenting opinion of Judge Krylov); 1 L. OPPENHEIM, INTERNATIONAL

LAW 343 (5th ed. 1955); BIRNIE ET AL, supra note 23, at 180.(215)

75 ILC, Second Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited

by International Law (Prevention of Transboundary Damage from Hazardous Activities), by Mr. Pemmaraju

Sreenivasa Rao, Special Rapporteur, 2(1) Y.B.INT’L.L. COMM’N 111, at 118, UN Doc. A/CN.4/501, (1999).

76 PHILIPPE SANDS, supra note 56, at 620; BIRNIE ET. AL., supra note 23, at 150; G Handl, State Liability for

Accidental Transnational Environmental Damage by Private Person, 74 AM.J.INT’LL. 525 (1980).

77 ILC, Third Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited by

International Law, by Mr. Robert Q. Quentin-Baxter, Special Rapporteur, 2(1) Y.B. INT’L. L. COMM’N 51, at 52,

U.N. Doc. A/CN.4/360 and Corr. 1 (1982).

78 Trail Smelter, supra note 61, at 1908, 1933; Corfu Channel, supra note 70, at 18.

79 BIRNIE ET. AL., supra note 23, at 218; IAN BROWNLIE, STATE RESPONSIBILITY 50 (1983).


fertilization is not an ultra-hazardous activity80 and no previous treaty exists between Rinnuco

and Aeolia, strict liability cannot be imposed on Rinnuco.

C. RINNUCO HAS NOT VIOLATED ITS OBLIGATIONS UNDER THE PRECAUTIONARY

PRINCIPLE UNDER TREATY AND CUSTOMARY LAW

The precautionary principle is yet to attain the status of customary international law.81 Even

UNCLOS has applied the principle of best scientific evidence, instead of scientific uncertainties

pursuant to the precautionary principle.82 Hence, it could be argued that treaty law has limited the

application of the precautionary principle.83

Further even if the precautionary principle is considered customary law, Rinnuco has complied

with its obligations.

1) Rinnuco has taken all reasonable measures to mitigate risks

a) Rinnuco has co-operated and consulted with the State of Aeolia regarding Ocean

Fertilization

The ILC has recognized co-operation among States as a reasonable measure of risk

management.84 The ocean fertilization project from the very beginning was notified to Aeolia85

and has even been negotiated through various diplomatic notes over the course of one year. Even

after the death of the nine narwhals, Rinnuco has in the utmost good faith handed over the

possession of the narwhals to Aeolia for the conduction of necropsies.86 Finally when Aeolia

80 Kim Jung Eun, International Liability Regime for Regulation of Marine Geoengineering, at 12(ASIAN SOC’Y

INT’L L Working Paper No. 8, 2012).

81 Nuclear Tests II, supra note 66; MOX Plant Case (Ir. v.U.K.), 126 I.L.R. 310 (2003).


83 SIMON MARR, THE PRECAUTIONARY PRINCIPLE IN THE LAW OF THE SEA 202 (2003).

84 Lake Lanoux Arbitration (Fr. v. Sp.), 12 R.I.A.A. 281 (1957); Articles on Transboundary Harm, supra note 59.

85 R.¶13.

86R¶ 22.


approached the Court, Rinnuco halted the ocean fertilization project as a further measure in good

faith.87 All these acts demonstrate Rinnuco’s wish to co-operate with Aeolia in implementing the

ocean fertilization project with prudence and caution.

b) Rinnuco has fulfilled its obligations to conduct an EIA, as required under custom and

treaty law

An EIA is a procedure for evaluating the likely impact of a proposed activity on the

environment.88 It is for each State to determine in its domestic policies, the assessment of the

project.89 It is submitted that Rinnuco has complied with its procedural as well as substantive

obligation to conduct an environmental impact assessment.

2) The precautionary principle does not entail a stoppage of the activity

Even when there exists a likelihood of damage, a state can undertake the proposed activity

provided it complies with certain mitigating measures.90 Accordingly Rinnuco’s act of conducting

the ocean fertilization experiment against Aeolia’s consent is not in violation of its obligations to

take precautionary measures. A strict duty to obtain consent arises only when there is an explicit

stipulation within a treaty.91 Since no treaty contains such provisions, Rinnuco is not under an

obligation to suspend the ocean fertilization project.

87 R.¶18.

88 Convention on Environmental Impact Assessment in a Transboundary Context, art.1 & art. 3, Feb.25, 1991, 30

I.L.M. 802.

89 Pulp Mills case, supra note 61, at 83¶205.

90 ILC, Second Report on International Liability for Injurious Consequences Arising out of Acts not Prohibited

by International Law, by Mr. Julio Barboza, Special Rapporteur, 2(1) Y. B. INT’L L. COMM’N. 145, at 146-147,

UN Doc. A/CN.4/402, (1986).

91 Lake Lanoux Arbitration, supra note 84, at 306; G.A. Res. 2995, U.N. GAOR, 27th Sess., 42, U.N. Doc.

A/RES/2995 (1972).


3) The provisions of the London Protocol relating to the undertaking of an

Assessment Framework do not refrain Rinnuco from conducting the project

It is Aeolia’s contention that Rinnuco’s failure to comply with the Assessment Framework, which

is embodied in a resolution to the London Protocol, has violated the obligation to undertake

precautionary measures. As an assessment framework is a risk assessment technique that deals

with ocean fertilization activities,92 there is no objective criterion to determine what compliance

of the precautionary principle would amount to and it must be dealt with on a case-to-case basis.93

Admittedly Rinnuco has not conducted an Assessment Framework prior to the ocean fertilization

project. However, for the following reasons, Rinnuco has not violated London Protocol.

a) Resolutions ‘being soft law’ are not binding

The Assessment Framework embodied under a resolution passed by the Parties to the London

Protocol constitutes soft international law94 as the provisions are merely directory and not binding

on the parties.95 Further Rinnuco being a dualist country, the Assessment Framework is not

binding, as it has not yet been incorporated it into its domestic legal system.

b) In any case, Rinnuco has not assented to the assessment framework

Rinnuco has consistently spoken in favor of ocean fertilization and has abstained from any votes

at conferences and meetings of the Parties to multi-lateral environmental agreements that would

92 Res. LP. 4(8), supra note 27.

93 CO2 Sequestration in Sub-Seabed Geological Formations, Report of the Twenty-Ninth Consultative Meeting

and the Second Meeting of Contracting Parties, I.M.O. Doc. LC 29/17 (Dec. 14, 2008).

94 Pierre-Marrie Dupoy, Soft Law and the International Law of the Environment, 12 MICH. J. INT’L. L. 420, 422

(1991).

95 PHILIPPE SANDS, supra note 56, at 141.


prohibit all ocean fertilization activities.96 Accordingly the assessment framework is not binding

on Rinnuco.

c) The provisions of Assessment Framework constitute an Empty Formality

Empty formality theory is a general principle of law in civilized nations97 and International

Courts98 which permits States to overlook procedures which are mere formalities, if the object of

the same is being met with. The object of mandating an Assessment framework under the London

Protocol’s resolution is to conduct an EIA at a higher threshold. The EIA conducted by Rinnuco

has also complied with all the international standards,99 thereby complying with the object of the

Assessment framework. Hence, the obligation to conduct an Assessment framework can be done

away with.

D. THE OCEAN FERTILIZATION PROJECT HAS NOT VIOLATED PROVISIONS RELATED TO

‘DUMPING’

Article 4 of the London Protocol and Article 210 of the UNCLOS regulate the dumping of

substances into the ocean with a view to conserve and protect the marine eco system. Dumping

is defined as the deliberate disposal of wastes or other matter.100

96 R.¶18.

97 Cinnamond v. British Airports Authority, [1980] 2 All E.R. 368 (Eng. C.A.); R. v. Governors of Haberdashers’

Aske’s Hatcham College Trust Ex p. T., [1995] E.L.R. 350 (Q. B. 1994); M.C. Mehta v. Union of India, [1999] 6

S.C.C. 237.

98 Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malay. v. Sing.), 2003

I.T.L.O.S. 10, 39 ¶11 (Oct. 8) (Separate Opinion of Judge Chandrasekhara Rao); Rainbow Warrior Case, (1990)

20 U.N.R.I.A.A. 215 (Apr. 30).

99 R. Clarification No. 22.

100 UNCLOS, supra note 6, art. 1.1.5 (a).


1) Ocean fertilization is not ‘dumping’

Placement of matter does not constitute dumping if a) it is not for the mere disposal of the matter

and b) if the placement is in accordance with the aims of the treaties.101

a) Placement is not for ‘mere disposal’

Only those placements that are carried out with the objective of disposal constitute dumping. As

the purpose of ocean fertilization is for the creation of an algal bloom in order to combat global

warming and bring down the level of aerial pollution102, it can be argued that the placement of

iron is not for its mere disposal.

b) Placement is in accordance with the aims of UNCLOS and the London Protocol

The Preamble of the London Protocol and UNCLOS both lay down the conservation and

preservation of the environment as one of their major objectives. In the present case, the ocean

fertilization project is being carried out with a view to mitigate climate change, stimulate fish

production and conduct scientific research103, all of which are in consonance with the objectives

of UNCLOS and London Protocol.

2) Ocean fertilization carried out for purposes of Legitimate Scientific Research is

permitted

Further the Parties to the London Protocol have in unambiguous terms recognized the exception

of ocean fertilization that is conducted for legitimate scientific research.104 In the present case the

101 London Protocol, supra note 7, art. 1.4.2; UNCLOS, supra note 6, art. 1.1.5(b).

102 Karen N. Scott, International Law in the Anthropocene: Responding to the Geoengineering Challenge, 34

MICH. J. INT'L L. 309, 337 (2013);David Freestone and Rosemary Rayfuse, Ocean Iron Fertilization and

International Law,364 MAR. ECOL. PROG. SER. 227, 229 (2008).

103 R.¶12.

104 Report of the Thirtieth Consultative and the Third Meeting of Contracting Parties, IMO Doc LC 30/16, ¶¶4.1,

4.18, annexes 5 and 6 (Dec. 9, 2008); G. A. Res.62/215, U.N. GAOR, 62nd Sess., U.N.Doc. A/Res/62/215 (Dec.

22, 2007).


ocean fertilization activity is being done for legitimate scientific research105 , has been authorized

under UNCLOS106 and has been sanctioned by a law that has been passed by Rinnuco.107 Hence

the ocean fertilization experiment is not in violation of the framework for the regulation of

dumping.

E. RINNUCO HAS NOT VIOLATED ITS DUTY TO CONSERVE THE MARINE ENVIRONMENT

AND BIODIVERSITY

1) Rinnuco has complied with its obligations to protect marine biodiversity

Aeolia claims that Rinnuco in its conduct of the ocean fertilization activity has violated Article

192 of UNCLOS as well as the Article 8 of CBD108 requiring the State to take measures to

preserve and conserve the environment. As elucidated previously, Rinnuco has taken all requisite

measures to protect marine biodiversity. Further to demonstrate any violation of such duty,

substantial damage is necessary to be proven.109 In the present case, as no harm to the biodiversity

has been proven, the allegations are merely speculative.

Further UNCLOS110 and CMS111 require States the duty to cooperate with each other in relation

to the conservation, utilization and management of highly migratory species and mammals. These

provisions contain no specific mechanism to ensure cooperation and hence it needs to be

105 R.¶12.

106 UNCLOS, supra note 6, art. 246; R.¶21.

107 R.¶15.

108 CBD, supra note 5, art. 8(c)(h).

109 ILC, Third report on the Law of the Non-Navigational Uses of International Watercourses, by Mr. Stephen M.

Schwebel, Special Rapporteur, U.N. GAOR, 34th Sess., UN Doc. A/CN.4/348 and Corr.1, at 93-94 ¶113 (1982).

110 UNCLOS, supra note 6, arts. 64, 65.

111 Convention on the Conservation of Migratory Species of Wild Animals, preamble & art. 3, Jun. 23, 1979, 1651

U.N.T.S 333.


adjudged subjectively. In any case, Rinnuco, by giving due consideration to Aeolian concerns,

has cooperated with Aeolia.

Further it is Rinnuco’s contention that decisions of the CBD-COP112 are merely directory in

nature113 and hence they do not bind Rinnuco.

2) Rinnuco has complied with its obligation to prevent, reduce and control marine

pollution

Article 194 of UNCLOS obliges States to take measures to prevent, reduce and control pollution.

Rinnuco has made arrangements to ensure that the ocean fertilization experiment is continuously

and extensively monitored and controlled by its research vessels.114 Further ocean fertilization

itself is a technique to bring down the levels of CO2 from the atmosphere thus reducing and

controlling pollution.

Further, Article 195 of UNCLOS and Article 3.3 of the London Protocol oblige States to refrain

from converting one type of pollution to another. The carbon that is absorbed by the

phytoplankton is naturally occurring carbon that is not harmful to the environment.115 Hence, it

does not qualify as a pollutant under UNCLOS and thus the same does not cause pollution.

In conclusion, the Republic of Rinnuco has not violated international law with respect to its ocean

fertilization project. Hence any further re-initiation of the project would be in consonance with

Rinnuco’s sovereign rights under international law.

112 R.¶20.

113 Gehring, Treaty-Making and Treaty Evolution, 467, at 491 in THE OXFORD HANDBOOK OF INTERNATIONAL

ENVIRONMENTAL LAW (Daniel Bodansky et. al., eds. 2007).

114 R.¶16.

115 Rebecca Lindsey and Michon Scott, What are Phytoplankton? (July 13, 2010),

http://earthobservatory.nasa.gov/Features/Phytoplankton/page2.php.

WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT XVI

PRAYER FOR RELIEF

For the foregoing reasons, Rinnuco respectfully requests that this Court:

- Declare that the ICJ does not have the jurisdiction to determine the matter.

- In the event that this Court is pleased to assume jurisdiction over the said dispute, declare

that the Republic of Rinnuco has not violated international law in the course of executing

its ocean fertilization project.

Respectfully Submitted,

Agents for the Republic of Rinnuco.

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