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2016 General List No. 170
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE,
THE HAGUE, NETHERLANDS
Case of Questions Relating to Ocean Fertilization and Marine
Biodiversity
The Federal States of Aeolia
APPLICANT
v.
The Republic of Rinnuco
RESPONDENT
MEMORIAL FOR THE RESPONDENT
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TABLE OF CONTENTS
INDEX OF AUTHORITIES........................................................................................................3
STATEMENT OF JURSIDICTION...........................................................................................6
STATEMENT OF FACTS............................................................................................................7
QUESTIONS PRESENTED.......................................................................................................10
SUMMARY OF ARGUMENTS................................................................................................11
ARGUMENTS ADVANCED.....................................................................................................12
I. The International Court of Justice does not have jurisdiction for the settlement this
dispute……………………………………………………………………………………12
II.A. Rinnuco has not violated International law with respect to its ocean fertilization project
as……………………………………………………………………………………………...16
A. There exists a qualified right in international law to conduct such a project
B. Direct obligations under the impugned conventions have been fulfilled
C. There is no contravention of the aims of the impugned conventions
II.B. Rinnuco has not violated its duty with respect to not cause transboundary harm and to
act according to the precautionary principle………………………………………………..24
CONCLUSION............................................................................................................................28
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INDEX OF AUTHORITIES
Text Books, Journals, and Reports
1. Secretariat of the convention on biological diversity, scientific synthesis of the impacts of
ocean fertilization on marine biodiversity 5 (secretariat of the convention on biological
diversity, cbd technical series no. 45 2009) [hereinafter scientific synthesis].
2. J. Ashley Roach, Defining Scientific Research: Marine Data Collection, in Myron H.
Nordquist et al. eds., Law, Science and Ocean Management 541, 543 (2007), citing
comparison of UNCLOS arts. 243, 246(3) and Alfred H.A. Soons, Marine Scientific
Research and the Law of the Sea 124 (1982)
3. The Law of Sea, Churchill & Lowe
4. Towards a 2015 Paris Agreement: Obligations of Results, Obligations of Conduct – or
Both? Sebastian Oberthür Institute for European Studies, Vrije Universiteit Brussel
5. Jonathon I. Charney, International Agreements and the Development of Customary
International Law, 61 WASH. L. REV. 971, 971 (1986)
6. Wladyslaw Czaplinski, Sources of International Law in the Nicaragua Case, 38 INT'L &
COMP. L.Q. 151, 153 (1989).
7. IMO, Ocean Fertilization: Interim Report of the Legal and Intersessional Correspondence
Group on Ocean Fertilization to the Scientific Groups, submitted by the U.K. to the
Scientific Groups of the London Convention and London Protocol, Sess. 31/2, May 19-23,
2008, IMO Doc. LC/SG 31/2/1 (Apr. 1, 2008).
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Cases:
1. Case concerning the northern Cameroons, Judgment of 2 December 1963 page 32
2. Fisheries Jurisdiction Case (Spain Vs Canada) Meaning Of "Conservation And
Management" (Paras. 64-73)
3. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
4. Responsibilities and obligations of States with respect to activities in the Area, Advisory
Opinion, 1 February 2011, ITLOS Reports 2011, p. 10
5. Application of The Convention on the Prevention And Punishment of The Crime Of
Genocide (Bosnia And Herzegovina V. Serbia And Montene Gro) (Paras. 202–230)
6. case concerning pulp mills on the river uruguay (argentina v. uruguay) judgment of 20 april
2010
7. Trail Smelter Arbitral Decision (US v. Can.) (1941) 35 Am. J. Int'l L. 684
8. P. Birnie and A. Boyle, International Law and the Environment, 2nd edn, Oxford, Oxford
University Press, 2002, p. 120.
9. P. Martin-Bidou, “Le principe de precaution en droit international de l’environnement”,
RGDIP, 1999, p. 655.
10. Application of The Convention on the Prevention And Punishment of the Crime Of
Genocide (Bosnia and Herzegovina V. Serbia And Montenegro) (Paras. 202–230)
11. The MOX Plant Case (Ireland v. United Kingdom) Request for provisional measures
12. North Sea Continental Shelf (F.R.G. v. Den. & Neth.), 1969 I.C.J. 3, 37-39 (Feb. 20);
13. The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment,
ITLOS Reports 1999, p. 10, at paragraph 171 Armed Activities on the Territory of the
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Congo (Democratic Republic of Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168,
at paragraph 160
List of Abbreviation:
ICJ International Court of Justice
ITLOS International Tribunal on Law for Law on Sea
LC/LP London Convention/ London Protocol
UNCLOS United Nations Convention on Law of Sea
CBD Convention on Biodiversity
OIF/OFP Ocean Iron Fertilization/ Ocean Fertilization Project
ILC International Law Commission
EEZ Exclusive Economic Zone
MSR Marine Scientific Research
IMO International Maritime Organization
International Conventions:
1. Convention on Biological Diversity
2. London Protocol
3. The London Convention
4. United nations convention on Law of seas
5. Vienna Convention on the Law of Treaties
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STATEMENT OF JURSIDICTION
The Federal State of Aeolia and the Republic of Rinnuco (“Parties”) submit the following dispute to
the International Court of Justice (“ICJ”). In accordance with the meeting with the President of the
Court held on 1 June 2016, the Parties have agreed that the questions regarding the Court’s jurisdiction
raised in the Preliminary Objection are inextricably linked to the merits of the questions raised in the
Application and that the questions regarding the Court’s jurisdiction should therefore be heard and
determined within the framework of the merits. Pursuant to Article 79, paragraph 10, of the Rules of
Court, the Court will give effect to the Parties’ agreement, and the Court thus will consider the
questions as to its jurisdiction simultaneously with the questions on the merits raised in the Application.
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STATEMENT OF FACTS
The Federal states of Aeolia and the Republic of Rinnuco are neighboring coastal Sovereign States
located on a continent surrounded by Muktuk Ocean. Both are developed countries having fishing
industry, and Aeolia has a strong ecotourism sector. Marine biodiversity of Muktuk Ocean is like
that of Greenland and other countries near the artic. Narwhals are inhabitants of Muktuk Ocean
and are commonly seen in waters off coast of Aeolia and Rinnuco.
Aeolia and Rinnuco are Members of UN and parties to the Statute of ICJ. Aeolia has recognized
the compulsory jurisdiction of ICJ. Both the countries are parties to the Vienna Convention, further
are contracting parties to Convention on Biological Diversity(CBD), 1996 Protocol to the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972
(London Protocol), Conservation of migratory Species (CMS), United Nations Convention on Law
of Seas (UNCLOS), United Nations Framework Convention on Climate Change (UNFCCC), the
Kyoto Protocol to the UNFCCC (Kyoto Protocol).
On 21st November 2014, Rinnuco announced its plans to conduct Ocean fertilisation after
conducting an extensive environment impact assessment. The major purpose was to simulate the
growth of phytoplankton booms in the Muktuk Ocean, mitigate climate change, stimulate fish
production, generate carbon offsets used to meet emission reduction targets and to conduct
extensive scientific research. This was communicated to Aeolia on 2nd December 2014. In its reply
Aeolia expressed concerns over this project. This was due to the Unknown effects of Ocean
fertilization of this large scale, which would cause serious impact to the marine biodiversity in the
Muktuk Ocean, to the narwhals. It will also effect its economy and insisted Rinnuco to act based
on Precautionary principle. On 5th December 2014, Rinnuco in its diplomatic note stated that
Rinnuco will proceed with Ocean fertilization as it has conducted extensive impact assessment. It
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believes that this project will produce useful information about Ocean fertilization and its uses to
mitigate climate change.
On 15th December Rinnuco passed a domestic legislation approving and funding the ocean
fertilization, where the project will be conducted in phases over the course of several years. During
the Initial phase Rinnuco planned to add 15,000 kg of Ferrous Sulphate over the course of six
weeks to a 2,000 square Km within its exclusive economic zone.
On 6th January 2015 Aeolia sent a diplomatic note alleging violation certain provisions under the
London Protocol and the resolutions, which Rinnuco denied in their reply note.
After the initial phase of Ocean fertilization, Rinnuco suspended the Ocean fertilization project.
On 22nd April, 9 narwhals died of coast of Rinnuco. The Research Centre in Aeolia conducted
necropsies, but the result was inconclusive as to the death of the narwhals. In furtherance to the
death of the Narwhals, Aeolia sent a diplomatic note alleging violation of various provisions under
CBD, UNCLOS, UN General Assembly resolutions and a duty not to cause transboundary harm.
In is reply Rinncuo have denied any violations and held its ground for sequestering carbon and
mitigating climate change.
From January 2015 to March 2016, additional negotiations followed by mediation were conducted
between the two countries. This process failed to resolve the conflict on the ocean fertilization
project.
Aeolia requested Rinncuo to submit to the jurisdiction of the ICJ. On 28th March 2016 Rinncuo
submitted its notice of revocation pursuant to Article 287 of UNCLOS.
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On April 2016 Aeolia filed a case before ICJ. Rinncuo has filed objections for the same and has
suspended ocean fertilization until the matter is heard by ICJ.
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QUESTIONS PRESENTED
I. WHETHER THE COURT HAS JURISDICTION FOR THE SETTLEMENT OF THIS
DISPUTE?
II. HAS RINNICCO VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS
OCEAN FERTILIZATION PROJECT?
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SUMMARY OF ARGUMENTS
1. It is submitted that ICJ does not have jurisdiction in this case. The subject matter in this
present case falls within the ambit of the London Protocol. Under the London Protocol the
Arbitral tribunal has jurisdiction to handle the case. Furthermore, even if the subject matter
falls within the ambit of UNCLOS, there can be alternative methods of settlements.
2. Rinicco has not violated international law with respect to its ocean fertilization project, it
has a substantive right to conduct scientific research activities under United Nations
convention on the Law of Sea and Convention on Biodiversity provided it complies with
the direct and incidental obligations under the said conventions. It is also apparent from
the entire facts that Rinicco has not acted in contravention to the provisions or the aims and
objectives of the conventions.
3. Rinicco has conducted ocean fertilization project in accordance with the precautionary
principle by conducting extensive environmental impact assessment. Further it has invited
Public participation for the same which included the Respondent. Rinncuo has also
complied with domestic and international law.
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ARGUMENTS ADVANCED
I. The International Court of Justice does not have jurisdiction for the settlement this
dispute
The Respondents submit that ICJ does not have jurisdiction in this present case. Applicants have
submitted that the Jurisdiction springs from UNCLOS, London Protocol and CBD. The respondent
contends that the subject matter of the dispute falls only under London protocol and not under any
other convention.
FALLS UNDER THE EXCEPTION PROVIDED IN ARTICLE 297 OF UNCLOS:
It is submitted by the respondent that marine scientific research and fishing in the exclusive
economic zone by the coastal state will not come under the purview of compulsory jurisdiction of
UNCLOS1. The coastal state shall not be obliged to accept to the compulsory jurisdiction under
UNCLOS, if the dispute pertains to the exercise of the coastal state of a right or discretion2. Article
246(1) of UNCLOS gives right to the coastal state the right to regulate, authorize and conduct
marine scientific research in the exclusive economic zone and on the continental shelf.
The respondent conducts ocean fertilization in its exclusive economic zone and thus will come
under the exception provided in UNLCLOS.
SUBJECT MATTER:
The dispute in the present case pertains to ocean fertilization, is covered under the London
protocol. A resolution was passed in this effect to make ocean fertilization a part of London
1United nations convention on Law of seas, Art 297(2)(a), Nov 14,1994
2 UNLCOS, Supra note 1 , art 297(2)(a)(i)
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Protocol. It is submitted by the respondents that these resolutions are not binding on the
respondents.
The applicants have submitted that the ICJ has jurisdiction because the matter direct arises under
UNCLOS and CBD3.
It is alleged by the applicant that UNCLOS expressly addresses ocean dumping4. Though
UNCLOS provides for the definition of activities amounting and not amounting to dumping, it
envisages the state parties to adopt national laws relating to dumping according to the International
standards5. These International standards are now covered under London protocol and convention.
State parties to LC, dumping of non-prohibited substances is only allowed subject to the
requirements of prior EIA, permitting and ongoing monitoring as set out in Annexure III of the
convention. Parties to the London Protocol, dumping of all waste is prohibited except as provided
for in the exception.
Furthermore the application of CBD, is in relation to the components of biological diversity and
in the case of activities and process, regardless of the occurrence of the effect if the activity is
carried within the national jurisdiction or control6.
Thus CBD will come into picture only when there has been any consequences due to carrying of
any activity. Carrying of Ocean fertilization by the respondents have not caused any harm to the
3 R.¶ 11
4 R.¶ 11
5 UNCLOS, supra note 1, art 260(6).
6 Convention on Biological Diversity, Art 4, Jun 5 , 1992
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bio diversity. In the study concluded by the applicant, there was no evidence to link the death of
the Narwhals to the activities conducted by the respondents7.
The real dispute to be covered under any convention, should reasonably relate to the obligation set
forth in the convention8. Real dispute in this present case is whether iron sulphate used for ocean
fertilization will come under the purview of the exceptions mentioned in the London Protocol.
Thus, the acute elements in this present case relate to ocean fertilization and the use of iron sulphate
for the same9. Since it is established that the dispute falls under London Protocol the arbitral
tribunal under the LP has jurisdiction to decide the matter.
NON – SUBJECT MATTER:
It is submitted by the respondents that even if the subject matter falls under the purview of
UNLCOS the ICJ will not have jurisdiction to handle the case based on the following submission.
UNCLOS provides for State parties to conclude agreements modifying or suspending the operation
of provision of UNCLOS provided that such agreement is neither incompatible with UNCLOS nor
is in conflict with its basic principles10. This provides for the state parties to UNCLOS to conclude
any agreement that would preclude the application of settlement of dispute under Section 2 of
UNCLOS. Thus, it is submitted that London protocol will act as the agreement modifying/
suspending the application of UNLCOS.
7 R. ¶ 8
8 Fisheries jurisdiction case ( Spain Vs Canada) , 1998 ICJ at para 30-31
9 Southern Bluefin Tuna Case, 2000 ICJ at para 49
10 UNCLOS, Supra 1, Art 311(3)
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Furthermore UNCLOS provides for the settlement of dispute between the parties regarding the
interpretation and application of this convention by any peaceful means and recourse to UNCLOS
is possible only when the peaceful settlement of dispute is not possible11. If the parties have
otherwise agreed through general, regional or bilateral or other agreements, if the parties agree
shall be submitted to the procedure that entails binding procedure12.
Thus it is submitted that parties can settle their dispute by peaceful means without submitting to
the compulsory jurisdiction of UNLCOS. Arbitral tribunal is constituted under London protocol,
if there is any existence of dispute, where parties to the dispute submit for the same.
It is submitted by the respondents that the arbitral tribunal under LP will act as the peaceful means
for the parties to settle their disputes. Furthermore this method has not been exhausted in this
present case and thus ICJ does not have jurisdiction.
11 UNCLOS, Supra note 1 , Art 281(1)
12 UNCLOS, Supra note 1, Art 282(1)
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II.A. Rinnuco has not violated International law with respect to its ocean fertilization project
Rinicco has not violated international law with respect to its ocean fertilization project, it has a
substantive right to conduct scientific research activities under United Nations convention on the
Law of Sea and Convention on Biodiversity provided it complies with the direct and incidental
obligations under the said conventions. It is also apparent from the entire facts that Rinicco has not
acted in contravention to the provisions or the aims and objectives of the conventions.
The Convention on Biological Diversity stated the need for legitimate scientific research into the
actual outcomes and effectiveness of OIF. 13
The CBD decisions IX/16, X/33, and XI/20; and the General Assembly Resolutions 66/288,
62/215, and 67/78 do not have any definitive legal effect which is a requirement for an instrument
to be binding in nature, thus it is only recommendatory in nature.14
A. There exists a qualified right in international law to conduct such a project
In international law two types of measures taken by a coastal State could, in practice, be regarded
as "conservation and management measures": those relating to the State's exclusive economic
zone; and those relating to areas outside that zone, insofar as these came within the framework of
an international agreement or were directed at stateless vessels. Measures not satisfying these
conditions are not conservation and management measures but unlawful acts pure and simple.
13 Secretariat of the convention on biological diversity, scientific synthesis of the impacts of ocean fertilization on
marine biodiversity 5 (secretariat of the convention on biological diversity, cbd technical series no. 45 2009)
[hereinafter scientific synthesis].
14 Case concerning the northern Cameroons, Judgment of 2 December 1963 page 32
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According to international law, in order for a measure to be characterized as a "conservation and
management measure", it is sufficient that its purpose is to conserve and manage living resources
and also satisfies various technical requirements. It is in this sense that the terms "conservation
and management measures" have long been understood by States in the treaties which they
conclude. Typically, in their enactments and administrative acts, States describe such measures by
reference to factual and scientific criteria15. Thus, the Ocean Fertilization project undertaken by
Rinnuco is purely a scientific experiment and research for the benefit of mankind as a whole.
All States have a sovereign right, jurisdiction to regulate, authorize, and conduct marine scientific
research in its EEZ provided that it is conducted exclusively for peaceful purposes and for the
benefit of mankind as a whole. Research should be conducted with appropriate scientific methods,
means compatible with the UNCLOS and must comply with all relevant regulations adopted under
the UNCLOS. It includes protection and preservation of the marine environment and must respect
the rights and duties of other States and other provisions of the UNCLOS.16
Marine scientific research’ means any study of, or related experimental work in, the marine
environment that is designed to increase man’s knowledge and is conducted for peaceful
purposes17, including its resources.18 Furthermore oceanography, marine biology,
geological/geophysical scientific surveying, as well as other activities with a scientific purpose
15 Fisheries Jurisdiction Case (Spain Vs Canada) Meaning Of "Conservation And Management" (Paras. 64-73)
16 Article 57 read with Article 238 and 246 of UNCLOS
17 4 Commentary ¶ 238.7, quoting draft art. 1 of nine Socialist States, 1975, A/CONF.62/C.3/L.26, 4 Off. Rec. 213
(1975).
18 4 id. ¶ 238.7, p. 447 (emphasis in original).
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will fall under this ambit19. The convention differentiates between pure and applied research in
Convention designated areas, e.g., the EEZ.20
In order for Ocean fertilization to come within the ambit of marine scientific research there has to
be evidence that the projects’ design and implementation are reasonable in relation to achieving
its stated objectives21. The burden of proving the reasonableness of the project with the credible
evidence lies with the applicant22
London Protocol
The LP requires state parties to take appropriate preventative measures when there is reason to
believe that wastes or other matter introduced into the marine environment are likely to cause harm
even when there is no conclusive evidence to prove a causal relation between inputs and their
effects.23 Thus, appropriate preventive measures are to be taken even when there is no conclusive
evidence to prove a casual relation of the impact of an activity like ocean fertilization. It is
submitted that the said duty is satisfied.
Thus, the qualifications which a State has to satisfy when undertaking an activity like ocean
fertilizations, within their jurisdiction is to exercise with ‘Due diligence’ i.e., the obligation to
apply a precautionary approach; to apply best environmental practices; to take measures to ensure
that provision guarantees in the event of an emergency an order by the Authority for protection of
19 NWP 1–14M Annotated ¶ 2.4.2.1.
20 Churchill & Lowe 405.
21 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
22 Judge Owada in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)
23 Article 3.1 LP
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the marine environment; to ensure the availability of recourse for compensation in respect of
damage caused by pollution and to conduct environmental impact assessments.24
It is maintained that Rinnuco should not be held liable for damage (if any) since it has taken all
necessary and appropriate measures to secure effective compliance with the qualification and
duties. Appropriate measures here mean to adopt laws and regulations and to take administrative
measures which are, within the framework of its legal system, “reasonably appropriate” for
securing compliance for the activities under its jurisdiction. What are the measures to be taken by
the Respondent can be determined by the state within the framework of its legal system and
international law. This determination is, therefore, left to the discretion of the State undertaking
the activity.25
B. Direct obligations under the impugned conventions have been fulfilled
Convention on Biodiversity
There exists two types of obligation. Obligation of conduct and obligation of result. obligations of
result’ gives more certainty regarding the actual outcome, obligations of conduct provide an entry
point for changing underlying behavior in a desired direction Obligations of result allow a
24 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011,
ITLOS Reports 2011, p. 10, para 122
25 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011,
ITLOS Reports 2011, p. 10, paras 228-229
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compliance assessment ex post, whereas obligation of conduct can be assessed on the way to a
target year/period.26
Clauses (a) to (e) of Article 8 of CBD deal with obligation of conduct, clauses (f), (i) and (l) deal
with obligation of conduct where the time is all most immediate.
This project was in furtherance to Art 8(f) for the recovery of threatened species, Art 8(i) for
balancing the viability and the health of existing biodiversity in the Muktuk Ocean and was
implemented as plan under the said obligation.
However, Art. 8(l) read with Art. 7 (c) and (d), this ocean fertilization project is one of such
categories of activities which is alleged to have adverse impact on the conservation and sustainable
use of biological diversity. All arrangements are made to fulfill the obligations under the said
provisions such as monitoring the effects of such activities through sampling and other techniques,
maintaining of data derived from such activity. This project is going to be carried in phases where
each phase is going to be monitored by the respondents. Its effects are going to be studied and the
respondent believes that its project will produce useful information and data about the potential
benefits and uses of ocean fertilization, including its potential uses to mitigate climate change.
Furthermore, the obligation left under Art. 8(l) is to regulate or manage the ocean fertilization
project when a significant adverse effect on biological diversity has been determined pursuant to
Article 7. No such negative impact on the biodiversity has been conclusively proved and the burden
to prove harm under Article 3 is on the Applicant state.
26Towards a 2015 Paris Agreement: Obligations of Results, Obligations of Conduct – or Both? Sebastian Oberthür
Institute for European Studies, Vrije Universiteit Brussel
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It is submitted that Rinnuco has absolutely complied with Article 14 of the CBD. There is no
violation of Article 14(d) of CBD since the death of the Narwhals in the jurisdiction of Rinnuco is
not an outcome of the ocean fertilization project.
Article 22(2) which requires the State parties to implement the CBD in compliance with the
relevant provisions governing the rights and obligations under the law of the sea which shall be
explained under the arguments advanced under the London protocol.
London Convention
The London Convention (“LC”) shall not be considered for this dispute as the London Protocol
(“LP”) supersedes the LC as between the parties to both instruments.27
The test of responsibility28
To ascertain whether the international responsibility of the Respondent have been incurred, on
whatever basis, about the Ocean fertilization project must be determined on the following basis.
First, it needs to be determined whether the ocean fertilization project could be attributed to the
Respondent on the basis that the acts were committed by its organs or persons whose acts are
attributable to it under customary rules of State Responsibility. Second, the Court needs to
ascertain whether acts of the kind governed by the Protocol, were committed by persons or organs
whose conduct is attributable to the Respondent. Finally, it will be for the Court to rule on the issue
as to whether the Respondent complied with Protocol.
27 Article 23, London Protocol
28 Application of The Convention on the Prevention And Punishment of The Crime Of Genocide (Bosnia And
Herzegovina V. Serbia And Montene Gro) (Paras. 202–230)
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It is alleged by the applicant that Rinnuco has not fulfilled its general obligations under the LP and
they are to apply a precautionary approach with respect to environmental protection from the
probable impact of dumping of wastes or other matter29 and to not transfer, directly or indirectly,
damage or likelihood of damage from one part of the environment to another or transform one type
of pollution into another.30
Responsibility and liability arising out the violation of the LP would be in accordance with the
principles of international law regarding State responsibility. Such State responsibility will be
applicable only to the extent of damage caused to the environment of other States or to any other
area of the environment by dumping or incineration at sea of wastes or other matter. 31
LP is neither applicable nor enforceable on vessels entitled to sovereign immunity under
international law if such vessels act in a manner consistent with the object and purpose of the LP
and their actions are informed to the International Maritime Organization (“IMO”) by the
concerned contracting party.32
While a precautionary approach may be relevant in interpretation and application of the provisions
of the Statute, it does operate as a reversal of burden of proof.33 Whether the LP places the burden
of proof equally on the parties is the real question and the answer is that the burden of proof has
not been displaced but has only been made stricter for the adverse party to a dispute.
29 Article 3.1
30 Article 3.3
31 Article 15
32 Article 10.4
33 Pulp Mills Case
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C. There is no contravention of the aims of the impugned conventions
The contracting parties to a treaty are competent to adopt authoritative interpretations,34 however
it is maintained that the resolutions35 are too expansive in scope as an authoritative interpretation
and regardless of such fact, it is not binding on Rinnuco.
The said interpretation has resulted in a change of the essential basis of the consent of the parties
to be bound by the treaty and the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty. The change alleged above is the transfer of
assessing and approving the activities regulated under the protocol from sovereign States upon
whom the substantive conventional obligations lie upon to an intergovernmental scientific group.
This assertion can be justified by the statement of the first legal working group, in April 2008 that
although the LC/LP are "the most appropriate legal instruments to regulate [OIF]," the treaties
would need textual amendments to bring OIF officially within their regulatory scope.36
The Assessment Framework's purpose and design is to limit OIF activities to legitimate scientific
research and to bar large-scale, commercial OIF. However, the massive amount of information
that the Assessment Framework requests may prove too stringent and burdensome for qualified
scientists of even the most legitimate OIF scientific research project.
34 See Vienna Convention on the Law of Treaties, Article 31(3)(a).
35 Resolution Lc-Lp.1(2008) On The Regulation Of Ocean Fertilization; Resolution Lc-Lp.2(2010) On The
Assessment Framework For Scientific Research Involving Ocean Fertilization
36 IMO, Ocean Fertilization: Interim Report of the Legal and Intersessional Correspondence Group on Ocean
Fertilization to the Scientific Groups, submitted by the U.K. to the Scientific Groups of the London Convention and
London Protocol, Sess. 31/2, May 19-23, 2008, IMO Doc. LC/SG 31/2/1 (Apr. 1, 2008).
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II.B. Rinnuco has not violated its duty with respect to not cause transboundary harm and to
act per the precautionary principle
Rinicco has conducted ocean fertilization project in accordance with the precautionary principle
by conducting extensive environmental impact assessment. Further it has invited Public
participation for the same which included the Respondent. Rinncuo has also complied with
domestic and international law. Further no State has the right to use or permit the use of its territory
in such a manner as to cause injury by fumes in or to the territory of another or the properties or
persons therein, when the case is of serious consequence and the injury is established by clear and
convincing evidence.37
Precautionary principle
The precautionary principle is part of a new development of law. The aim is not strict international
regulation. The establishment of a process accompanied by a body of occasionally explicit, but
usually implicit, rules guiding the behavior of the various agents in the international arena.38
37 Trail Smelter Arbitral Decision (US v. Can.) (1941) 35 Am. J. Int'l L. 684
38 Birnie and Boyle, after having stressed the uncertainties in the application of the precautionary principle (and even
in its meaning), affirm that “the proposition that [the precautionary principle] is, or … is not, customary international
law is too simplistic. Use by national and international courts, by international organizations, and in treaties, shows
that the precautionary principle does have a legally important core on which there is international consensus – that in
performing their obligations of environmental protection and sustainable use of natural resources states cannot rely on
scientific uncertainty to justify inaction when there is enough evidence to establish the possibility of a risk of serious
harm, even if there is as yet no proof of harm. In this sense the precautionary
principle is a principle of international law on which decision makers and courts may rely in the same way that they
may be influenced by the principle of sustainable development.” P. Birnie and A. Boyle, International Law and the
Environment, 2nd edn, Oxford, Oxford University Press, 2002, p. 120.
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The precautionary principle must be analyzed as a symbiosis of legal obligations of means and
obligations of result. As an obligation of result, the precautionary principle imposes the obligation
of preventing possible negative effects on the environment. In extreme circumstances, the principle
can lead to the establishment of a preventive prohibition of certain activities and the suggested
activity would be thus forbidden until its innocuity is proven.39
The ICJ shall not overrule a state's impact assessment unless another party proves that assessment
"clearly," "convincingly," or "conclusively" wrong.40
The burden or onus of proof, the standard of proof, and the methods of proof. It is well established
in general that the applicant must establish its case and that a party asserting a fact must establish
it.41
Thus, the precautionary principle has no application when there is a failure in supplying proof that
there will be either irreparable damage to the rights of the Respondent or serious harm to the marine
environment resulting from Ocean Fertilization Project.42
Transboundary Harm
The ICJ has identified three relatively uncontroversial circumstances in which international
conventions may be relevant to finding customary international law. These circumstances are when
a convention: (1) codifies existing customary international law; (2) causes customary international
39 P. Martin-Bidou, “Le principe de precaution en droit international de l’environnement”, RGDIP, 1999, p. 655.
40 Pulp Mills Case
41 Application O F The Con Vent Ion On T He Prevent Ion And Punishment O F The Crime Of Geno Cide (Bosn Ia
And Herzegovina V. Serbia And Montene Gro) (Paras. 202–230)
42 Para 75 Mox Plant Case
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law to crystallize; and (3) initiates the progressive development of new customary international
law. In each of these circumstances, states negotiation and adoption of certain international
agreements are evidence of customary international law.43 ILC Draft Articles are considered to
reflect customary international law. Certain provisions of the ILC Draft Articles on State
Responsibility, even in its earlier versions, have been invoked as such by the ITLOS44 as well as
by the ICJ.45
Article 3 of the Draft Articles on the prevention of transboundary harm from hazardous activities
requires the state of origin to take all appropriate measures to prevent significant transboundary
harm or at any event to minimize the risk thereof.
In order for the Ocean fertilization project to fall within the scope of the Draft Articles the OF
project should not be prohibited by international Law, must be planned or carried out in the
territory or otherwise under the jurisdiction or control of the state of origin, must contain an
element of causing significant transboundary harm, the risk should take the form of high
probability of causing significant transboundary harm. The term significant’ is something more
than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial.
43 Jonathon I. Charney, International Agreements and the Development of Customary International Law, 61 WASH.
L. REV. 971, 971 (1986); see North Sea Continental Shelf (F.R.G. v. Den. & Neth.), 1969 I.C.J. 3, 37-39 (Feb. 20);
Wladyslaw Czaplinski, Sources of International Law in the Nicaragua Case, 38 INT'L & COMP. L.Q. 151, 153
(1989).
44 The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, p.
10, at paragraph 171
45 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, I.C.J.
Reports 2005, p. 168, at paragraph 160
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However, the mere fact that harm eventually results from an activity does not mean that the activity
involved a risk, and conversely, that an activity may involve a risk even though the State of origin
underestimated the risk or was unaware of the risk.The impact of the OF project must have a
physical link with the transboundary effects
On reprising the arguments with respect to burden of proof, it is maintained that the quintessential
element of invoking state responsibility being the physical link between the impact of the OF
project and the transboundary effects is not provable by the Applicant and hence no transboundary
harm is established.
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CONCLUSION
For the foregoing reasons, the Republic of Rinnuco respectfully requests that
this Court:
1. Declare that the Court does not have jurisdiction to determine the matter.
2. Declare that the Republic of Rinnuco has not violated international law with respect to its
ocean fertilization project.
Respectfully submitted,
Agents for the Republic of Rinnuco