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 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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 2
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 3
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 4
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
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 5
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 6
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.
35 UNCLOS, supra note 6, art. 311.
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 7
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].
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 8
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.
45 UNCLOS, supra note 6, art.282.
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 9
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 10
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 11
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).
57 UNCLOS, supra note 6, art.246.
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 12
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 13
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 14
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 15
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).
82 UNCLOS, supra note 6, art. 61.
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 16
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 17
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 18
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 19
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).
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 20
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.
WRITTEN SUBMISSIONS ON BEHALF OF RESPONDENT 21
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.