2016 General List No. 170
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE, THE HAGUE
THE NETHERLANDS
CASE CONCERNING QUESTIONS RELATING TO OCEAN FERTILIZATION AND
MARINE BIODIVERSITY
FEDERAL STATES OF AEOLIA, APPLICANT
V.
REPUBLIC OF RINNUCO, RESPONDENT
MEMORIAL FOR THE RESPONDENT
2016- 2017 Stetson International Environmental Moot Court Competition
2
Contents
ACRONYMS .................................................................................................................................. 4
REFERENCES ............................................................................................................................... 5
TREATIES .................................................................................................................................. 5
CASE LAW................................................................................................................................. 5
SOFT LAW ................................................................................................................................. 6
BOOKS ....................................................................................................................................... 6
ARTICLES .................................................................................................................................. 7
REPORTS ................................................................................................................................... 8
QUESTIONS PRESENTED ........................................................................................................... 9
STATEMENT OF FACTS ........................................................................................................... 10
SUMMARY OF ARGUMENTS. ................................................................................................. 11
STATEMENT OF JURISDICTION............................................................................................. 12
Rinnuco does not recognize the International Court of Justice (ICJ) Jurisdcition as pertains to
the matter between the Federal State of Aeolia and the Republic of Rinnuco on the Ocean
fertilization of the Muktuk Area................................................................................................ 12
Runnico has not accepted the ICJ jurisdiction as compulsory. ............................................. 12
Runnico did not give consent to have the matter heard in the ICJ ........................................ 13
Rinnuco avers that the concept of compromissory jurisdiction is compromising the Court’s
ability to make apt judgments. ............................................................................................... 15
STATEMENT OF THE CASE ON MERITS .............................................................................. 16
A. WHETHER RINUCCO HAS DEROGATED FROM ITS RESPONSIBILITY AS A
STATE UNDER INTERNATIONAL LAW ............................................................................ 16
The republic of Rinucco has not violated any of its obligations under international law ..... 16
The respondents are in line with International law obligations. ............................................ 17
The respondents acted with due dillegence. .......................................................................... 17
The respondents fully co-operated in line with international law. ........................................ 18
WHETHER RINUCCO HAS VIOLATED THE PRINCIPLE OF COOPERATION ............. 18
WHETHER RINUCCO HAS VIOLATED THE PRECAUTIONARY PRINCIPLE ............. 19
Considerations in line with the burden of Proof. ................................................................... 20
D.WHETHER THE RESPONDENTS ACTIONS ARE IN LINE WITH THE DEFENSE OF
STATE NECESSITY. ............................................................................................................... 25
3
The defense of necessity ........................................................................................................... 25
The respondents acted in line with state responsibility in cases of necessity........................ 25
Necessity as defense in response to climate change .............................................................. 26
PRAYERS..................................................................................................................................... 27
APPENDIX 1 ................................................................................................................................ 28
4
ACRONYMS
ASR- Articles on State Responsibility
CBD- Convention on Biological Diversity
CMS- convention on the Conservation of Migratory Species of Wild Animals.
ICJ- International Court of Justice
ITLOS- International Tribunal of the Law of the Sea.
PCIJ- Permanent court of International Justice.
UNCLOS- United Nations Convention on the Law Of the Sea
UNFCCC- United Nations Framework Convention on Climate Change.
VCLT- Vienna Convention on the Law of Treaties.
UNGA Res- United Nations General Assembly Resolution
5
REFERENCES
TREATIES
1.
1988 Convention for the Regulation of Antarctic Mineral Resource Activities,
2.
2005 Antarctic Protocol.
3.
Convention on Biological Diversity
4.
Convention On Biological Diversity; Alien Species: Guiding Principles For The
Prevention, Introduction And Mitigation Of Impacts, Unep/Cbd/Sbstta/5/5, 22 October
1999
5.
Convention on the Conservation of the Migratory Species of Wild Animals
6.
International Court of Justice
7.
Treaty Relating to the Cooperative Development of the Water Resources of the
ColumbiaRiver Basin.
8.
United Nations Convention on the Law Of the Sea
9.
Vienna Convention on the Law of Treaties.
CASE LAW
1.
Al-Adsani v United Kingdom, 34 EHRR (2002) 11, paras 52–67
2.
Anglo-Iranian Oil Co case ICJ reports 1952p 102- 103
3.
Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ
4.
Commonwealth v. Kendall, 883 N.E.2d 269, 272-73 (Mass. 2008).
5.
Islands of Palmas case (Netherlands v USA), PCIJ (1928)
6.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, pp.
241-42,1996
7.
Lillian S v Caltex Kenya Limited 1989 KLR
8.
Lillian S v Caltex Kenya Limited 1989 KLR
9.
Minors Oposa v. Secretary of the Department of Environmental and Natural Resources,
33 ILM 173 (1994)
10.
MOX Plant Case, Ireland v United Kingdom, Order, Request for Provisional Measures,
ITLOS Case No 10, ICGJ 343
11.
Nicaragua v United States, ICJ Reports (1986) 14, paras 172–86;
12.
Norway v France 1957 ICJ Rep 9 18
13.
Norway v France 1957 ICJ Rep 9 18
6
14.
15.
16.
Phosphates in Morroco Italy v France, Preliminary objections, judgment, PCIJ Series
A/B No 74, ICGJ 326 (PCIJ 1938)
Prosecutor v Furundzija, 38 ILM (1999) 317 (ICTY);
United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984).
SOFT LAW
1.
Convention on Biological Diversity; Alien Species: Guiding principles for the
prevention, introduction and mitigation of impacts, [1999]
2.
Declaration of the United Nations Conference on the Human Environment (Stockholm
Principles) [1972]
3.
General Principles Concerning Natural Resources and Environmental Interferences as
adopted by the Brundtland Commission’s Expert Group on Environmental Law.
4.
Goals and Principles of Environmental Impact Assessment, The Governing Council of
the United Nations Environment Programme [1987]
5.
Resolution 56/83 (2001) the UN General Assembly
6.
Responsibility of States for Internationally Wrongful Act (2001), International Law
Commission
7.
Rio Declaration on Environment and Development [1992]
8.
The UNEP Draft Principles of Conduct on Shared Natural Resources
9.
United Nations General Assembly Resolution 3129 of 1973
10.
United Nations General Assembly Resolution 66/288
11.
World Summit on Sustainable Development [2002]
BOOKS
1.
Brownlie, System of the Law of Nations: State Responsibility (Oxford, 1983); de
Arechaga, in Sorensen (ed), Manual of Public International Law (London, 1968) 530.
2.
Brudner, ‘The Domestic Enforcement of International Covenants on Human Rights: A
Theoretical Framework’, 35 U Toronto LJ (1985
3.
Dupuy, in Bothe (ed), Trends in Environmental Policy and Law (Gland, 1980) 373.
Kiss and Shelton, in Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law
and Settlement of Disputes (Leiden, 2007) 1131–2.
4.
Edward B. Arnolds & Norman F. Garland, The Defense Of Necessity In Criminal Law:
The Right To Choose The Lesser Evil, 65 The J. Of Crim. L. & Criminology.
5.
Halpern, J. (2003) Reasoning About Uncertainty, The MIT Press, Cambridge,
Massachusetts
6.
J. Crawford, The International Law Commission’s Articles on State Responsibility:
Introduction, Text, and Commentaries (2002)
7
7.
8.
9.
10.
11.
Kenneth S. Johnson & David M. Karl, Is Ocean Fertilization Credible or Creditable?,
296 SCIENCE 467, 467-68 (2002).
M. Shaw, International Law (5th edn, 2003)
Oppenheim, International Law, (5th edn, London, 1955) vol I, 343:
Sand, in Helm (ed), Energy: Production, Consumption and Consequences
(Washington, DC, 1990) 247.
Sunstein, C.R. (2005) Laws of Fear: Beyond the Precautionary Principle, Cambridge
University Press, Cambridge
ARTICLES
1.
17.Takeda, S., and A. Tsuda (2005), An in situ iron-enrichment experiment in the
western subarctic Pacific (SEEDS): Introduction and summary, Progress in
Oceanography.
1.
Barber, R. T., and M. R. Hiscock (2006), A rising tide lifts all phytoplankton: Growth
response of other phytoplankton taxa in diatom-dominated blooms, GLOBAL
BIOGEOCHEMICAL CYCLES.
2.
Blain, S., et al. (2007), Effect of natural iron fertilization on carbon sequestration in the
Southern Ocean,Nature..
3.
Buesseler, K.O. and Boyd, P.W.: 2003, ‘Will ocean fertilization work?’, Science 300,
67–68.
4.
Cushing, D. H. (1995), Population Production and Regulation in the Sea: A Fisheries
Perspective, Cambridge UniversityPress..
5.
Flyvbjerg, B., Bruzeliu, N. and Rothengatter, W. (2003) Megaprojects and Risk: An
Anatomy of Ambition, Cambridge University Press, Cambridge.
6.
Gollier, C., Jullien, B. and Treich, N. (2000), ‘Scientific progress and irreversibility:
an economic interpretation of the “Precautionary Principle”’, Journal of Public
Economics
7.
Holm, S. & J. Harris (1999) “Precautionary principle stifles discovery”. Nature 400
(July 29th),398.
8.
Landry, M. R. (2002), Integrating classical and microbial food web concepts: evolving
views from the open ocean tropical Pacific, Hydrobiologia.
9.
Lindley, S. T., and R. T. Barber (1998), Phytoplankton response to natural and
experimental iron addition,Deep-Sea Research.
10.
Nollkaemper, A. (1996), “‘What you risk reveals what you value’ and other dilemmas
encountered in the legal assaults on risks”. In The precautionary principle and
international law: the challenge of implementation,
11.
Quiggin, J. (2006), ‘Assessing the costs and benefits of reducing emissions of
greenhouse gases’, Submission to Stern Committee of Review into Climate Change,
UK.
12.
Raiswell, R., et al. (2008), Bioavailable iron in the Southern Ocean: the significance of
the iceberg conveyor belt, Geochemical Transactions, 9(1), 7.
8
13.
14.
15.
16.
17.
Raven, J. A. (2005), Ocean Acidification Due to Increasing Atmospheric Carbon
Dioxide, Royal Society.
Ryther, J. H. (1969), Photosynthesis and Fish Production in the Sea, Science
Ryther, J. H. (1969), Photosynthesis and Fish Production in the Sea, Science.
Smetecek, V., and S. W. A. Naqvi (2008), The next generation of iron fertilization
fertilization experiments in the Southern Ocean, Philosophical Transactions of the
Royal Society A.
Smith, K. L., Jr., et al. (2007), Free-Drifting Icebergs: Hot Spots of Chemical and
Biological Enrichment in the Weddell Sea, Science..
REPORTS
1.
ICJ Reports (1949) 18–22.
2.
Intergovernmental panel on climate change, ipcc fourth assessment report, climate
change 2007: synthesis report (2007).
3.
Ago, Roberto. Addendum to the Eighth Report on State Responsibility. UN Doc.
A/CN.4/318/Add.5–7, 29 February, 10 and 19 June 1980. New York: International Law
Commission, 1980.
4.
Intergovernmental Panel on Climate Change (2007), Working Group I Report (WGI):
Climate Change 2007: The Physical Science Basis, IPCC, Geneva
5.
ILC Report (2001) GAOR A/56/10, 385.
9
QUESTIONS PRESENTED
1. WHETHER THE ICJ HAS JURISDICTION OVER THE CASE.
2. WHETHER THE REPUBLIC OF RINNUCO HAS VIOLATED
INTERNATIONAL AND CUSTOMARY LAW BASED ON THE MERITS.
10
STATEMENT OF FACTS
The Federal States of Aeolia and the Republic of Rinnuco are neighbouring coastal states. Having
been notified of the ocean fertilization project by Rinnuco, Aeolia, expressed concern over the
adverse effects the project could have on the marine biodiversity of the Muktuk Ocean, the
narwhals and both states’ economies. Aeolia urged Rinnuco to act in accordance with the
precautionary principle as the impact of the project on the planned scale was largely unknown.
Rinnuco stated that it would continue with the project.
Rinnuco proceeded to enact legislation approving and funding the ocean fertilization project within
its exclusive economic zone (EEZ). Aeolia urged Rinnuco to halt the project. Rinnuco asserted
that they had not violated any international law and would temporarily suspend the project to
engage in diplomatic discussions with Aeolia, though maintained that they would resume the
project at its discretion.
The Stanlee vessel had already completed the first phase of the project when Rinnuco temporarily
suspended its ocean fertilization project. Nine dead narwhals washed up on Rinnuco’s coast , this
phenomena not previously observed. Aeolia’s Nautilus Research Institute conducted the
necropsies and although cause of death was not ascertained.
Rinnuco further asserted that it was not in violation of any international law and would resume its
ocean fertilization project within the next. Additional negotiations and mediation between the two
states failed to resolve the dispute regarding Rinnuco’s project.
Aeolia then submitted an application instituting proceedings against the Republic of Rinnuco,
dated 4 April 2016 (Rinnuco submitted a Preliminary Objection, dated 10 May 2016, contesting
the ICJ’s jurisdiction over the matter
11
SUMMARY OF ARGUMENTS.
a. The respondents submit that the ICJ would not have sufficient jurisdiction to the matter.
b. The respondents submit that they have fulfilled their role as concerns state responsibility
as well as the principle of trans-boundary harm.
c. The respondents submit that it has fulfilled all its obligations as concerns the precautionary
principle.
d. The respondents submit that any other actions were done as a result of necessity.
12
STATEMENT OF JURISDICTION
Rinnuco does not recognize the International Court of Justice (ICJ) Jurisdcition as
pertains to the matter between the Federal State of Aeolia and the Republic of Rinnuco on
the Ocean fertilization of the Muktuk Area.
The jurisdiction of the Court comprises all cases, which the parties refer to it, and all
matters especially provided for in the Charter of the United Nations or in Treaties and Conventions
in force1.
The ICJ jurisdiction is applicable in matters where a question is raised as to: the
interpretation of the treaty, any question of International law, the existence of any fact which would
constitute a breach of international obligation and the nature of the reparation to be made.
The Republic of Rinnuco confers that it has not violated any international laws on
environmental protection.
Further it contests the ability of the ICJ to carry out its judicial function in this matter. The
ICJ has previously determined that ‘jurisdiction is conferred upon the court only to the extent to
which the declarations of both parties coincide in conferring it.
Rinnuco therefore avers that it has not recognized this ICJ’s jurisdiction and thus declines
to proceed further in the case because it considers that the proper limits of the ICJ’s judicial
function does not permit an adjudication upon the merits of Aeolia’s claim as thematically
demonstrated below:
Runnico has not accepted the ICJ jurisdiction as compulsory.
1
R.P Anand; Comppulsory Jurisdiction of the International Court of Justice, p 68
13
Compulsory Jurisdiction is an ICJ concept that provides that any international legal dispute
involving those States party to the Statute, may be submitted to the Court.2 The compulsory
jurisdiction of the International Court of Justice is not truly ‘compulsory’.
The Parties to a dispute may assent to the ICJ’s jurisdiction or not as per the Options clause
provided for under article 36(2) of the Statute of the Court. Under the options clause issues may
only be brought before the ICJ, if both parties have made declarations.3 This is seen as a unilateral
act 4 that is both reciprocal.5
As per para 4 of the compromis, Rinucco did not ipso facto accept the ICJ’s jurisdiction as
compulsory. Rinucco rightfully exercised its entitlements as per article 36(2) of the ICJ statute,
which provides the ‘option clause’ that declare that it ascribes to the compulsory jurisdiction of
the ICJ or not.
Although the federal State of Aeolia recognizes the compulsory jurisdiction of the ICJ, the
Republic of Rinucco does not. The Republic of Rinnuco thus has the discretion on this basis to
refute the ICJ’s jurisdiction in this matter.
Runnico did not give consent to have the matter heard in the ICJ
The Consent of State parties to a dispute, is the basis of the Court’s jurisdiction.6 The ICJ
can only exercise jurisdiction over a State with its consent.7 It has become accepted that consent
need not be given in a certain time and form and it is not necessary that it should be given before
proceedings are instituted.8
The ICJ also acknowledges consent as done by acts conclusively establishing it.
9
The
United Kingdom instituted proceedings before the Court against Argentina and Chile concerning
disputes as to the sovereignty over certain lands and islands in the Antarctic. In its Applications
2
www.ijrcenter.org/universal-tribunals-treaty-bodies-and.../international-court-of-justice/
R.P Anand; Comppulsory Jurisdiction of the International Court of Justice, p 143
4
Phosphates in Morroco Italy v France, Preliminary objections, judgment, PCIJ Series A/B No 74, ICGJ 326 (PCIJ
1938)
5
Barcelona Traction, Light and Power Company Ltd, (Belgium v. Spain) I.C.J. 1970. 3
6
Peace Treaties Case ICJ reports p 71
7
Monetary Gold Case ICJ Reports 1954 p 32
8
R.P Anand; Comppulsory Jurisdiction of the International Court of Justice,p118
9
Corfu Chanel case United Kingdom v Albania I.C.J. 1949 i.c.j 4.22
3
14
to the Court, the United Kingdom stated that it submitted to the Court’s jurisdiction for the
purposes of the case, and although, as far as it was aware, Argentina and Chile had not yet accepted
the Court’s jurisdiction, they were legally qualified to do so. Argentina informed the Court of its
refusal to accept the Court’s jurisdiction to deal with the case. In these circumstances, the Court
found that neither Chile nor Argentina had accepted its jurisdiction to deal with the cases, and,
orders were made removing them from its List. The same was decided in the United States of
America v USSR the Court removed the case from it’s list after establishing that it did not have
jurisdiction over the matter on the basis of a lack of consent by the United States as per Article 36
paragraph 1 of the Court’s Statute. A similar result was established: in the case between the United
States of America and Czechoslovakia and the case of United states of America and Hungary.
Furthermore, under then London protocol, as read with para 7 of the compromise the
Republic of Rinnuco’s consent was a prerequisite before the dispute may be settled by means of
Arbitral procedure set forth in annex 3 of the London protocol.
Under para 9, Rinnuco withdrew permission to be bound by the Court due to the UNCLOS
agreement as read with article 31(1) of the Vienna Convention on the Law of Treaties since the
Vienna convention on the law of treaties upholds the principle of free consent and good faith10 and
the pacta sunt servanda rule 11 universally.12 The convention governs the treaties formed between
states13 either bilaterally or multi-laterally. The UNCLOS identifies State parties as states that have
consented to be bound by it in order for the Convention to be in force.14 Disputes under this
convention may be submitted to the ICJ15 provided that the State signs, ratifies or accedes to the
Convention.16 On 28 March 2016, the republic of Rinnuco deposited a notice of revocation of its
written declaration pursuant to Article 287. The notice of revocation explicitly avowed that
Rinnuco would not submit disputes concerning the interpretation or application of UNCLOS to
the ICJ. The exit provisions authorize the treaty parties to end their obligations under an
10
Article 31(1), Vienna Convention on The Law of Treaties
Article 26, Vienna Convention on The Law of Treaties
12
Preamble, Vienna Convention on The Law of Treaties
13
Article 1, Vienna Convention on The Law of Treaties
14
Article 1(2), United nations convention on the Law of the Seas
15
Article 287(b),United nations convention on the Law of the Seas
16
Article 287, United nations convention on the Law of the Seas
11
15
international treaty.17
Rinnuco avers that the concept of compromissory jurisdiction is compromising the Court’s
ability to make apt judgments.
Compromissory jurisdiction arises from a compromissory clause usually found in the
Treaties, Conventions or other international Law instruments. Compromissory clauses presuppose
the existence of a perfect symmetry between the scope of the jurisdictional clause and the law
applicable to it18 However, the need to obtain that symmetry might lead to a narrow construction
of the notion of ‘dispute on the interpretation and application of the treaty’.19.
Rinnucco maintains that the sole treaty application of the Convention on Biological
diversity in line with the compromissory clause, whereas the other treaties necessary to give a just
and fair ruling are not within the ambit of the ICJ would result in an unfair judgment against the
Republic of Rinnuco. This limited jurisdiction weighed against a wider jurisdiction that would
include all other treaties as stated in annex A of the compromis would result in a miscarriage of
justice where the Republic of Rinnuco is concerned.
In light of the arguments presented we submit that this honorable court has no jurisdiction
over this matter.
R Helfer, Exiting Treaties’(2005) 91 Virginia L R 1579, 1582
The ICJ judgment of 18 July 1966, South West Africa cases (Ethiopia v South Africa; Liberia v South Africa),
Second Phase [1966] ICJ Rep 6.
19
Enzo Cannizaro and Beatrice Bonafe, Fragmenting International law through Compromissory Clauses/ Some
Remarks on the Decision of the ICJ in the Oil Platforms Case.
17
18
16
STATEMENT OF THE CASE ON MERITS
A. WHETHER RINUCCO HAS DEROGATED FROM ITS RESPONSIBILITY AS A
STATE UNDER INTERNATIONAL LAW.
The republic of Rinucco has not violated any of its obligations under international law20
The concept of state responsibility as founded in the ILC articles on state responsibility21 as
concerns environmental law is backed by the Mox plant case22 , isaland of Palmas case23 as well
as the Barcelona Traction case24. Thus from these cases, state responsibility may be interpreted
that states are responsible or liable in international law to make reparation for trans-boundary
damage25, or the risk of damage, resulting from their own failure to regulate and control potentially
harmful activities to the standard of due diligence required by international law, or from their
failure to cooperate.26
The International Court of Justice (ICJ) recognised in an advisory opinion in the Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion, “The existence of the general obligation of
states to ensure that activities within their own jurisdiction and control respect the environment of
J. Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text, and
Commentaries (2002)
21
See ILC 2001 Articles on State Responsibility [‘ILC Articles’], ILC Report (2001) GAOR A/56/10, 43–365,
reproduced in Crawford (ed), Th e ILC’s Articles on State Responsibility (Cambridge, 2002). This final draft reflects
important changes made in 1998 and 2000: see Crawford et al, 94 AJIL (2000) 660 and 96 AJIL (2002) 874. In
Resolution 56/83 (2001) the UN General Assembly ‘took note’ of the draft articles.See generally Brownlie, System
of the Law of Nations: State Responsibility (Oxford, 1983); de Arechaga, in Sorensen (ed), Manual of Public
International Law (London, 1968) 530; id, 159 Recueil des Cours (1978) 267;Brunnée, 36 NYIL (2005) 21–56.
22
MOX Plant Case, Ireland v United Kingdom, Order, Request for Provisional Measures, ITLOS Case No 10, ICGJ
343 (ITLOS 2001), 3rd December 2001, International Tribunal for the Law of the Sea [ITLOS]
23
Islands of Palmas case (Netherlands v USA), PCIJ (1928)
24
Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ
25
Sand, in Helm (ed), Energy: Production, Consumption and Consequences (Washington, DC, 1990) 247.
26
In Sorensen, Manual of Public International Law, 535. See ILC Report (1998) Ch VIII, para 340: ‘There was no
general requirement of fault or damage for a State to incur responsibility for an internationally wrongful act.’ See also
Brownlie, State Responsibility, 44 ff ; Smith, State Responsibility and the Marine Environment, 15–20, but contrast
the dissent of Judge Krylov, Corfu Channel Case, ICJ Reports (1949) 72, requiring dolus or culpa, and Oppenheim,
International Law, (5th edn, London, 1955) vol I, 343: ‘An act of state injurious to another is nevertheless not an
international delinquency if committed neither wilfully and maliciously nor with culpable negligence.’
20
17
other states beyond national control.”27 The Rio principle 228 adopted at the 1992 Rio Conference
on the Environment and Development, although part of non-binding texts is well established and
can be regarded as customary international law. They were reaffirmed in declarations during the
2002 World Summit on Sustainable Development. Their contents are included in the United
Nations Convention on the Law of the Sea. Principle 21 also appears in article 3 of the 1992
Convention on Biological Diversity to which both states are Parties to.
The respondents are in line with International law obligations.
Only exceptionally do treaties adopt a form of state liability for damage without fault 29. More
often, as in Articles 139 and 235 of the 1982 UNCLOS, they specify expressly that only for the
non-fulfillment of international obligations will states parties be responsible30 The trial smelter
arbitral award remains the seminal case concerning state responsibility in cases of environmental
damage and trans boundary harms. However, in the Corfu Channel case, a caveat was added, that
no responsibility of any kind will attach to harms resulting from risks of which the state concerned
could not have been objectively aware.31 The Respondents point out that ocean fertilization as
illustrated below does not result to immensely harmful consequences.
The respondents acted with due dillegence.
As Dupuy points out, whatever the Trail Smelter Case decides, it must be read in the light of
subsequent state practice, which in his view favours liability in such cases if there is a failure to
act with due diligence, but not liability without fault nor violation of the principles of
environmental law32
The respondents aver that all due diligence was carried out in accordance with international laws
seen in the Land Reclamaton case as well as the pulp mills case, the respondents have carried out
the necessary research as well as the necessary Environmental Impact Assessments in order to
ensure the utmost diligence before carrying out the process of ocean fertilization. Further the fact
that the project was to be carried out in phases only serves to further speak as to the level of caution
and diligence taken by the state.
27
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, pp. 241-42,1996
1972 Stockholm Declaration, Principle 21, ‘States have the sovereign right to exploit their own resources pursuant
to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction do not
cause damage to the environment of other States beyond the limits of national jurisdiction’
29
See Lefeber, Transboundary Environmental Interference, 159–66
30
See also 1961 Treaty Relating to the Cooperative Development of the Water Resources of the ColumbiaRiver Basin,
Article 18; 1988 Convention for the Regulation of Antarctic Mineral Resource Activities, Article 8; 2005 Antarctic
Protocol, Liability Annex VI, Article 10.
31
ICJ Reports (1949) 18–22. See ILC Report (2001) GAOR A/56/10, 385, para (14).
32
Dupuy, in Bothe (ed), Trends in Environmental Policy and Law (Gland, 1980) 373. See also Kiss and Shelton, in
Ndiaye and Wolfrum (eds), Law of the Sea, Environmental Law and Settlement of Disputes (Leiden, 2007) 1131–2.
28
18
The respondents fully co-operated in line with international law.
The Respondent is fully aware of the need for state cooperation especially as concerns violations
of peremptory norms, It is far from clear, however, whether any environmental obligations have
been recognized as non-derogable peremptory norms by the international community as a whole
in accordance with Article 53 of the Vienna Convention on the Law of Treaties33. International
courts have so far applied the concept of peremptory norms34 only to aggression, torture, and
genocide35. In recognition of the importance of environmental law, the respondents however
contend that their actions were in line with International environmental law in so far as state
responsibility is concerned.
WHETHER RINUCCO HAS VIOLATED THE PRINCIPLE OF COOPERATION
The Convention on the Conservation of Migratory Species of Wild Animals emphasizes
the duty of good neighbourliness as espoused through encouraging Range States of
migratory species to endeavour to conclude Agreements which benefit the species that have
unfavourable conservation status by giving them priority.36 These type of agreements
between cooperating states would prevent, reduce the release into the habitat of a migratory
species of substances harmful to that migratory species. In the ICJ decision in the
Gabcikovo-Nagymaros case, which was concerned with a dispute between Hungary and
Czechoslovakia over building two dams on the Danube. The judgment of the ICJ in this
case indicates the concept of community of interest in the international rivers as well as the
necessity of co-operation of the States in the area of prevention of environmental harm
arising out of activities regarding these common rivers.
The UN General Assembly stated in unambiguous terms that information and prior
consultation were the basis of the duty of cooperation between states sharing natural
resources, in Resolution 3129 of 1973.This gives rise to the application of the principles of
33
This point is developed by James Crawford, Creation of States in International Law (2006), at 102. Vienna
Convention on the Law of Treaties.
34
M. Shaw, International Law (5th edn, 2003), at 116–119; ILC, State Responsibility (2002); ‘The Relationship
between Jus Cogens, Obligations Erga Omnes and International Crimes: Peremptory Norms in Perspective’, 42
Austrian J Public Int’l L (1991), at 183, 190, 193–196; Danilenko, ‘International Jus Cogens: Issues of LawMaking’, 2 EJIL (1991) 42; Brudner, ‘The Domestic Enforcement of International Covenants on Human Rights: A
Theoretical Framework’, 35 U Toronto LJ (1985) 219, at 249–250.
35
Nicaragua v United States, ICJ Reports (1986) 14, paras 172–86; Prosecutor v Furundzija, 38 ILM (1999) 317
(ICTY); Al-Adsani v United Kingdom, 34 EHRR (2002) 11, paras 52–67
36
Article 4(2) Convention on the Conservation of the Migratory Species of Wild Animals
19
exchange of information, notification, prior consultation and EIA earlier than when the
risks of damage are known. Principle 14 of the Rio Declaration emphasises the necessity
for rational planning in order to reconcile any conflict between the needs for development
and the need to protect and improve the environment.
The result of the above UNGA resolution was compounded in the Progress reports on
implementation of the principles were submitted to the General Assembly through the
UNEP
Governing
Council
in
1981
(UNEP/GC.9/5/Add.2)
and
in
1985
(UNEP/GC.13/9/Add.1). The republic of Rinucco went over and above its responsibilities
as it conducted the activities within its territorial jurisdiction and also informed the republic
of Aelioa and carried an environmental impact Assessment in line with the requirements
as per international law.37
Further the principle of Co-operation is set as a balance so as to not limit the capacity of
states to conduct its activities while ensuring that the interests of the neighbouring states
are placed in consideration. Important criteria for determining what is permissible and what
is prohibited might be: (a) the likelihood of significant harmful effects on the environment
and on potential or current activities in another State; (b) the ratio between prevention costs
and any damage; (c) the impact on other States’ capacity to use their natural wealth and
resources in a similar way; and (d) the health of the population of another State.38 The
republic of Rinucco provides that on a balance, all the above have been fulfilled in a manner
so as to ensure the best possible outcome for both parties.
WHETHER RINUCCO HAS VIOLATED THE PRECAUTIONARY PRINCIPLE
The precautionary principle is found in articles 290 of the UNCLOS as well as article 41
of the ICJ
39
. This was also enshrined in principle 15 at the 1992 Rio Conference on the
Environment and Development, during which the Rio Declaration was adopted.40
37
1991 ECE Convention on Environmental Impact Assessment in a Transboundary Context, Espoo (Finland)
See Principle 3 of the UNEP Draft Principles of Conduct on Shared Natural Resources and Articles 10–12 of the
General Principles Concerning Natural Resources and Environmental Interferences as adopted by the Brundtland
Commission’s Expert Group on Environmental Law.
39
Article 290(1) of the LOS Convention gives provisions for the Tribunal to order provisional measures to prevent
serious harm
40
Principle 15 Rio Declaration
38
20
The definition put forward by the Wingspread Conference (1998)41 provides a useful basis
for analysis. Critics such as Sunstein42 have pointed out that, taken literally, the
precautionary principle is self-contradictory. All activity of any significance raises threats
of harm to human health or the environment in one way or another. In particular,
unnecessary precautions waste resources that could be used to promote health or the
environment.
Moreover, the phrasing of the principle with reference to ‘an activity’ embodies the implicit
assumption that there exists a status quo (figure two- appendix one)option in which no
activity is undertaken. This assumption may be appropriate for some applications. In
general, however, no such option exists, and it is necessary to choose between alternatives,
all of which involve change and may potentially create risks. As the saying has it, ‘not to
decide is to decide’.
However, it is possible to rationalise the precautionary principle as a guide to management
of complex systems. Complete understanding of such systems is unattainable. However, it
is often possible to distinguish between decisions where the consequences are understood
fairly clearly, at least in a probabilistic sense, and those that are likely to generate
unanticipated possibilities or surprises.
In order to understand the measurement of risks, it is possible to derive notions of
reasonable belief that are appropriate to problems of this kind as stated by noted authors
Halpern43 and Quiggin44.
Using these approaches, it is possible to integrate concepts such as ‘burden of proof’ into
a decision-theoretic analysis.
Considerations in line with the burden of Proof.
The analysis of the precautionary principle presented here supports a range of heuristics
regarding complex choices that have proved useful in a variety of contexts.
Wingspread Conference (1998), ‘Wingspread Statement on the Precautionary Principle’, Press release, February,
Racine, Washington.
42
Sunstein, C.R. (2005) Laws of Fear: Beyond the Precautionary Principle (the Seeley Lectures), Cambridge
University Press, Cambridge
43
Halpern, J. (2003) Reasoning About Uncertainty, The MIT Press, Cambridge, Massachusetts.
44
Quiggin, J. (2006), ‘Assessing the costs and benefits of reducing emissions of greenhouse gases’, Submission to
Stern Committee of Review into Climate Change, UK.
41
21
1. Risk analysis
The risks involved in the case above involves the following:
The threat of climate change and the need to reduce the extent of carbon emissions. The
most stringent emission scenarios published by the Intergovernmental Panel on Climate
Change (IPCC) would result in the stabilization of atmospheric carbon dioxide (CO2) at
concentrations of approximately 550 ppm which would produce a global temperature
increase of at least 2 ◦C by 2100. Given the large uncertainties regarding the potential risks
associated with this degree of global warming, it would be more prudent to stabilize
atmospheric CO2 concentrations at or below current levels which, in turn, would require
more than 20-fold reduction (i.e., ≥95%) in per capita carbon emissions in industrialized
nations within the next 50–100 years.45
The possibility of harm to marine biology and ecosystems: The CBD has developed
Guiding Principles for the Prevention, Introduction and Mitigation of Impacts of Alien
Species that Threaten Ecosystems, Habitats or Species.46 The Guidelines highlight the
precautionary approach as the first Guiding Principle.47
Conclusion: the republic of Rinnuco is committed to the Kyoto Protocol as well as the
Doha amendment requiring them to reduce the green house emissions.48 This creates an
obligation. Similarly it is also party to the CBD49 as well as the Convention on the
Conservation of Migratory Species but not to the Agreement for the conservation of Small
Cetaceans of the Baltic, North East Atlantic, Irish and North seas (ASCOBANS)
50
It is
worth noting that with an increase of only 1.5 degrees, as many as one-third of all species
would be at risk of extinction. With more rapid increases, a mass extinction event is
increasingly likely. The full consequences of such an extinction event are beyond out
capacity to predict, or even to consider.
The effects of not taking on this colllosal task dwarfs the possible risks associated with
Ocean Iron Fertilisation (OIF).
45
Intergovernmental Panel on Climate Change (2007), Working Group I Report (WGI): Climate Change 2007: The
Physical Science Basis, IPCC, Geneva.
46
https://www.cbd.int/doc/decisions/cop-06-dec-23-en.pdf
47
Convention On Biological Diversity; Alien Species: Guiding Principles For The Prevention, Introduction And
Mitigation Of Impacts, Unep/Cbd/Sbstta/5/5, 22 October 1999
48
Para 10 of the Compromis.
49
Para 6 of the compromis.
50
Para 8 of the compromise.
22
2. Sensitivity to megaprojects
Although some sensitivity analysis is commonly undertaken in benefit–cost analysis,
evidence suggests that allowance for unexpected variations is commonly inadequate,
particularly in relation to large-scale ‘megaprojects.51
The project of iron fertilization52 and its impact have been widely disputed and perhaps too
quickly misjudged.
a. The necessity of ocean iron fertilization.
Global CO2 emissions have increased faster than the most extreme scenarios developed
for IPCC assessments (Figure 1). New data published in 2008 show that GHG emission
rates more than tripled between the 1990s and 2007, increasing from 0.9 %/year to 3.5
%/year53.
The response to date has been emission reduction frameworks. However, so far, these
have not been effective in reducing atmospheric CO2 levels—in fact, they have failed
to even slow the rate of emissions growth.54.
b. The effect of ocean iron fertilization to climate change.
It is widely accepted that the terrestrial biological carbon sink can be enhanced to
reduce atmospheric CO2 through forestation and agriculture practices. However, the
deep ocean is the single largest reservoir of mobile carbon on the planet, and ocean
phytoplankton (microscopic algae) are responsible for nearly half the annual CO2
exchange and a majority of all carbon sequestered over geologic time. This is as a result
of the “biological pump”, a process that begins at the surface where microscopic
organisms called phytoplankton use energy from sunlight to convert CO2 and other
nutrients to biomass in events called ‘blooms’ (Figure 3- Appendix one). As a
phytoplankton bloom matures over a period of about 60 days, the organisms can be
eaten or die. A fraction of the dead phytoplankton, and fecal pellets from the organisms
that feed on them, aggregate into falling particles and sink towards the deep ocean.
51
Flyvbjerg, B., Bruzeliu, N. and Rothengatter, W. (2003) Megaprojects and Risk: An Anatomy of Ambition,
Cambridge University Press, Cambridge.
52
Para 12 and 15 of the Compromis.
53
Available at : http://cdiac.ornl.gov/trends/emis/meth_reg.html
54
Canadell, J. G., et al. (2007), Contributions to accelerating atmospheric CO2 growth from economic activity,
carbon intensity, and efficiency of natural sinks, Proceedings of the National Academy of Sciences,
0702737104v0702737101.
23
Some of this material decomposes and dissolves back into the water column as it sinks.
Carbon that reenters the water column in this way can be trapped in deep water for long
periods of hundreds to a thousand years or so. A smaller portion sinks all the way to
the ocean bottom and accumulates as sediment, where it can be stored for millions of
years or more.. The manual adding of Iron to the ocean only serves to enhance the
activity of the pump and reduce the amount of CO2 in the atmosphere.
c. The effect of ocean iron fertilization on phytoplankton.
Lindley and Barber55 studied the response of photosynthesizers to natural iron
stimulation in waters that are ”downstream” of the iron-rich Galapagos Islands. They
found that the species changes were identical to those of the IronEx II experiment,
Blain and coauthors also found a succession of photosynthesizers in the Kerguelen
Island natural iron enrichment56 . Thus, natural blooms stimulated by increased light or
nutrients, natural blooms stimulated by iron, and artificially stimulated blooms all show
a succession of phytoplankton, often climaxing with dominance by a group that was
rare before the bloom originated. There is no evidence from the 12 prior experiments
of permanent species changes and no reason to believe that moderate scale experiments
would be different.
In the case of continuous fertilization process, Barber and Hiscock discuss this issue in
detail and observe that “ …over the years a few very careful observers from Ryther57
to Landry58, who work in oceanic as opposed to coastal habitats, have quietly noted
that there is no replacement of the ambient non-diatom assemblage during diatom
bloom formation.”59.
d. The effect of Ocean iron fertilization on ocean acidity
Ocean acidification’ is the decrease in surface water pH being caused by rapid
dissolution of CO2 from the atmosphere into surface waters60. OIF does not contribute
55
Lindley, S. T., and R. T. Barber (1998), Phytoplankton response to natural and experimental iron addition,
Deep-Sea Research Part II, 45(6), 1135-1150.
56
Blain, S., et al. (2007), Effect of natural iron fertilization on carbon sequestration in the Southern Ocean,
Nature, 446(26 April), 1070-1074.
57
Ryther, J. H. (1969), Photosynthesis and Fish Production in the Sea, Science, 166(3901), 72-76.
58
Landry, M. R. (2002), Integrating classical and microbial food web concepts: evolving views from the open ocean
tropical Pacific, Hydrobiologia, 480(1), 29-39.
59
Barber, R. T., and M. R. Hiscock (2006), A rising tide lifts all phytoplankton: Growth response of other
phytoplankton taxa in diatom-dominated blooms, GLOBAL BIOGEOCHEMICAL CYCLES, 20(4).
60
Raven, J. A. (2005), Ocean Acidification Due to Increasing Atmospheric Carbon Dioxide, Royal Society.
24
to surface ocean acidification because the biological pump removes CO2 from surface
waters by photosynthesis (where acidification is a problem for marine organisms that
secrete calcareous skeletal material). Thus, there is a temporary increase in pH in the
fertilized patch as a result of CO2 drawdown that takes a few months to re-equilibrate
with atmospheric CO2 levels. After this time pH levels will be similar to those before
the OIF project.
e. The effect of ocean iron fertilization on fisheries.
In thinking about large-scale OIF it is important to note that there is a historic
association between greater diatom new production and enhanced fisheries61. In
addition, the melting of icebergs in the Southern Ocean HNLC region creates a natural
iron fertilization that supports higher productivity and a diverse trophic community
around the icebergs62, as well as higher CO2 sequestration63. Indeed, OIF has been
suggested as a mechanism to enhance krill growth and support marine mammal
populations64. In the single experiment that investigated the effect of OIF up the food
chain to fish (SEEDS I), the results were positive rather than negative.”65
3. Flexibility and maintenance of options
The relationship between option value and the precautionary principle has been discussed
by Gollier, Jullien and Treich66
4. Reliability
Finally, the precautionary principle gives some support to the use of rules of thumb with a
track record of reliability, even where a formal risk analysis suggests that these rules of
61
Ryther, J. H. (1969), Photosynthesis and Fish Production in the Sea, Science, 166(3901), 72-76. See also:
Cushing, D. H. (1995), Population Production and Regulation in the Sea: A Fisheries Perspective, Cambridge
University
Press..
62
Smith, K. L., Jr., et al. (2007), Free-Drifting Icebergs: Hot Spots of Chemical and Biological Enrichment in
the Weddell Sea, Science, 317(5837), 478-482.
63
Raiswell, R., et al. (2008), Bioavailable iron in the Southern Ocean: the significance of the iceberg conveyor
belt, Geochemical Transactions, 9(1), 7.
64
Smetecek, V., and S. W. A. Naqvi (2008), The next generation of iron fertilization fertilization experiments in
the Southern Ocean, Philosophical Transactions of the Royal Society A.
65
Takeda, S., and A. Tsuda (2005), An in situ iron-enrichment experiment in the western subarctic Pacific
(SEEDS): Introduction and summary, Progress in Oceanography, 64(2-4), 95-109.
66
Gollier, C., Jullien, B. and Treich, N. (2000), ‘Scientific progress and irreversibility: an economic interpretation of
the “Precautionary Principle”’, Journal of Public Economics, 75, 229–53.
25
thumb may be overly cautious. The case-based decision theory of Gilboa and Schmeidler67
provides a useful approach to the application of such rules.
Conclusion
Based on the analysis above and following the precautionary principle, uncertainty is not
an argument for delaying action, as the UNFCCC acknowledges in Article 3.3: Pursuing
this principle, mitigation and adaptation measures are to be implemented before full
information is available and uncertainties regarding the scope and timing of climate change
are resolved.
D.WHETHER THE RESPONDENTS ACTIONS ARE IN LINE WITH THE DEFENSE
OF STATE NECESSITY.
The defense of necessity
The respondents acted in line with state responsibility in cases of necessity
Necessity codified by Article 25 of the International Law Commission’s (ILC’s) Articles
on State Responsibility (ASR), is a circumstance precluding the wrongfulness of an
otherwise internationally wrongful act. It is traditionally defined as a situation in which the
sole means by which a state can safeguard an essential interest from a grave and imminent
peril is to sacrifice another state’s interest of lesser importance. The plea is unavailable
where the rule from which derogation is sought precludes its invocation, where the state
invoking necessity has contributed to peril’s onset, or where the act to safeguard the
essential interest is contrary to a peremptory norm68. As traditionally understood, the
essential interests safeguarded in necessity are state interests, but the ILC included as
progressive development in Article 25 ASR the possibility for a state—or several states
acting together unilaterally—to safeguard in necessity an essential interest of the
international community as a whole69. The ILC’s Draft Articles on the Responsibility of
International Organizations (DARIO), now also provides as progressive development for
Gilboa, I. and Schmeidler, D. (1995), ‘Case-based decision theory’, Quarterly Journal of Economics, 110, 605–39.
The International Court of Justice (ICJ) had handed down its 1997 Gabcikovo-Nagymaros decision (International
Court of Justice 1997) in which the Court accepted that, although not applicable to the facts of that case, state of
necessity as then provisionally codified by the ILC, was a rule of customary international law.( International Court of
Justice. “Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia): Judgment of 25 September 1997.”
ICJ Reports (1997): 7–84.)
69
ILC Special Rapporteur on State Responsibility, Roberto Ago, reconceptualized state of necessity, arguing in Ago
1980 that rather than being a mere expression of the raison d’état, state of necessity was a principle to be associated
with a just and equitable application of the law: summum jus, suma injuria. For Ago, were state of necessity cast out
the door, it would return through the window; codified, it would be domesticated.( Ago, Roberto. Addendum to the
Eighth Report on State Responsibility. UN Doc. A/CN.4/318/Add.5–7, 29 February, 10 and 19 June 1980. New York:
International Law Commission, 1980.)
67
68
26
the possibility of an international organization, acting in necessity, to safeguard an essential
interest of the international community as whole, subject to the organization having the
role of protecting the interest in question as well as the other conditions traditionally
associated with state of necessity, as set out above, being met.
Necessity as defense in response to climate change
On May 15, 2013, Jay O’Hara and Ken Ward navigated a small fishing boat named the
“Henry DavidT.” to block the steam ship “Energy Enterprise” from unloading 40,000 tons
of coal at the Brayton Point Power Plant on the coastal border of Massachusetts and Rhode
Island.70 Later that year, prosecutors charged the pair with disturbing the peace, conspiracy,
failure to act to avoid a collision, and negligent operation of a motor vessel in connection
with the incident.71 At trial, the pair’s attorneys intended to present a novel variation of
the ancient necessity defense, arguing that the imminent threat of global climate change
left them with no choice but to act as they did that morning.72
The doctrine of necessity can be traced back to the 1551 case Reninger v. Fagoss , stating,
"A man may break the words of the law, and yet not break the law itself ... where the words
of them are broken to avoid greater inconvenience, or through necessity, or by
compulsion."73 Four elements must be proved in order to institute such claim:
a. The respondent is faced with a clear and imminent danger.74
b. The respondent can reasonably expect that his action will be effective as a direct cause
in abating danger.
c. There is no legal alternative in abating the said danger.
d. The legislature has not acted to preclude the defense by a clear and deliberate choice
regarding the values at issue75.
The respondents aver that in light of the imminent effects of global warming and the research
backed promise in line with ocean fertilization, the actions taken were necessary in abating the
danger and reducing the effects of global warming even if in the slightest.
Ken Ward & Jay O’Hara, The Action, LOBSTER BOAT BLOCKADE, http://lobsterboatblockade.org/the-action/.
Ken Ward & Jay O’Hara, The Legal Case, LOBSTER BOAT BLOCKADE, http://lobsterboatblockade.org/thelegal-case/.
72
John Vidal, Not guilty: the Greenpeace activists who used climate change as a legal defence , THE GUARDIAN
(September
10,
2008),available
at
http://www.theguardian.com/environment/2008/sep/11/activists.kingsnorthclimatecamp
73
Edward B. Arnolds & Norman F. Garland, The Defense Of Necessity In Criminal Law: The
Right To Choose The Lesser Evil, 65 The J. Of Crim. L. & Criminology 289, 291 (1974) (Citing [1551] 1 Plowd. 1,75
Eng. Rep. 1.).
74
United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984).
75
Commonwealth v. Kendall, 883 N.E.2d 269, 272-73 (Mass. 2008).
70
71
27
PRAYERS
The respondents submit the following as prayers:
1. That the ICJ lacks jurisdiction on the matter.
2. That the republic of rinnuco has not violated international law as concerns state
responsibility.
3. That the Republic of Rinnuco has not violated the precautionary principle.
4. That the actions done by the republic of Rinucco are in line with the defense of necessity.
28
APPENDIX 1
Figure 1: Actual emissions (black lines) now exceed worst case scenario used by the IPCC 4th
Assessment Report (red line) - source [Raupach et al. , 2007]. Updated with 2005-7 data.
[http://cdiac.ornl.gov/trends/emis/meth_reg.html].
29
Figure 2: Global Cost Curve for carbon mitigation (abatement). Shows the wide range of
technology and practices needed to achieve meaningful carbon sequestration.
30
Figure3- the process of the biological pump.