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INTERNATIONAL COURT OF JUSTICE
THE PEACE PALACE
THE HAGUE, THE NETHERLANDS
THE CASE CONCERNING
OCEAN FERTILIZATION AND MARINE BIODIVERSITY
THE FEDERAL STATES OF AEOLIA
(APPLICANT)
V.
THE REPUBLIC OF RINNUCO
(RESPONDENT)
----------------------------------------------------
MEMORIAL FOR THE APPLICANT
----------------------------------------------------
2016
i
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………....................iv
STATEMENT OF JURISDICTION…………………...……………......…………....………..ix
QUESTIONS PRESENTED………………………………………….………………………....x
STATEMENT OF FACTS……………………………………………………...........................xi
SUMMARY OF ARGUMENTS…………………….………………………...........................xiii
ARGUMENTS…….………………………………...…………………………..…...…………..1
I. THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER………………….….1
A. The ICJ has jurisdiction under Article 27(3) of the CBD………………………………....1
1. The requirements of Article 27(3) of the CBD were satisfied…...….………….....1
a. There existed a disagreement on a point of law or fact between Aeolia and
Rinnuco…………………………..……………………….............................….3
b. Rinnuco’s objection to the Court’s jurisdiction lacks basis………………...….4
B. The ICJ has jurisdiction under Article 287(1) of the UNCLOS…………………………..4
1. Rinnuco’s notice of revocation did not divest the Court of its jurisdiction…….…5
a. The case was already pending before the ICJ prior to the effectivity of Rinnuco’s
written revocation………………………………………………………………5
i. The case was pending before the Court on 23 June 2016……………...6
ii. Rinnuco’s notice of revocation takes effect on 28 June 2016………….6
2. Rinnuco failed to observe good faith and abused its rights under UNCLOS……..7
3. There existed a legal dispute between Aeolia and Rinnuco under UNCLOS…….8
ii
4. The ICJ has jurisdiction to settle disputes arising from the interpretation and
application of international agreements………………………...............................9
5. ICJ’s jurisdiction encompasses all rules of international law not incompatible with
the UNCLOS………………………………….............................................…….11
II. RINNUCO BREACHED ITS TREATY OBLIGATIONS UNDER INTERNATIONAL
LAW…………………………....................................................………………………….…12
A. Non-observance of the Precautionary Principle……………..…………....……...…..12
1. The Precautionary Principle is codified in the CBD……….................................13
2. The elements of the Precautionary Principle are present…………………...…..14
B. Rinnuco failed in its obligation not to cause harm to other states…...……..……….....16
1. Transboundary harm is codified in CBD, UNCLOS and LP………..…………...16
a. Transboundary harm is codified in CBD………..………………………….…16
b. Transboundary harm is codified in UNCLOS……………………………...…16
c. Transboundary harm is codified in LP………………..................................…17
2. The elements of transboundary harm are present…………………………...........17
a. Nexus between the activity and the damage………..........................................17
b. Human causality…………………………………......................................…..18
c. Threshold criterion………………………..…………………………….......…18
d. Transboundary movement of harmful effects………………………………....19
C. Rinnuco failed in its duty to conserve and preserve the marine environment….........19
1. Rinnuco failed to cooperate with Aeolia in the conservation of migratory
species....................................................................................................................19
2. Failure to prevent and reduce marine pollution ……………………………........20
iii
a. Introduction of ferrous sulfate through ocean fertilization is dumping……….20
b. Ocean fertilization pollutes the ocean……..…….........................................….21
3. Rinnuco does not have exclusive rights over shared resources within its EEZ.....22
D. Rinnuco failed to promote Sustainable Development…………………………….....23
1. Non-observance of the intergenerational responsibility….……………..…….....23
2. Violation of Sustainable Development……………….……………………..…....24
E. Rinnuco is responsible for an internationally wrongful act…………………..…..….26
1. The act is attributable to Rinnuco…………………………….……………….…26
2. The act constituted a breach of an international obligation of a state………..…..27
CONCLUSION AND PRAYER FOR RELIEF……………………………….......………….28
iv
INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
1996 Protocol to the Convention 1972, November 07, 1996, 36 I.L.M. 1 (LP)……………...passim
Convention on Biological Diversity, June 16,1992, 1760 U.N.T.S. 79 (CBD) .................... passim
United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 3 (UNCLOS)……………………………………………………………………...passim
U.N DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS
1978 UNEP Environmental Law Guidelines and Principles on Shared Natural Resources Principle
1…………………………………………………………………………………………………..23
Commentary on the Articles on State Responsibility, Rep. of the Int’l Law Comm’n,
53rd Sess, UN Doc. A/56/10; GAOR, 56th Sess., Supp. 10 (2001)………………………………26
Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous
Activities, 2001, in Report of The I.L.C. IN ITS 53RD SESSION, (2001) ....................................15
Convention of Parties 9 Decision IX/16, available at:
https://www.cbd.int/decision/cop/?id=11659......................................................................3, 13, 14
Convention of Parties 10 Decision X/33, available at:
https://www.cbd.int/decision/cop/?id=12299.......................................................................3, 13, 14
Decision of Parties 11 Decision XI/20, available at: https://www.cbd.int/doc/decisions/cop-
11/cop-11-dec-20-en.pdf......................................................................................................3, 13, 14
Responsibility of States for Internationally Wrongful Acts (2002) UN Do. A/RES/58/83/Annex
(State Responsibility)……...……………………………………………………………………26
The International Court of Justice: Handbook……………………………………………………..6
United Nations General Assembly Resolution A/RES/66/288 July, 27 2012...............................23
United Nations, Statute of the International Court of Justice, 18 April 1946, available at:
http://www.refworld.org/docid/3deb4b9c0.html.............................................................................1
JUDICIAL DECISIONS
Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Judgement) (Georgia v. Russia)(cited as “Application Elimination of All Forms
Racial Discrimination Case”) [2011] ICJ Report……………………………………………..8, 9
v
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium) (Judgment)
(cited as “Arrest Warrant Case”)[2002]........................................................................................2
Certain Property Case (Lichtenstein v. Germany) [2005] ICJ Rep 6, ICGJ 18 (cites as “Certain
Property Case”) ..........................................................................................................................2, 4
Corfu Channel Case (UK v. Albania) [1949] (Judgment) ICJ Rep 4 (cited as “Corfu Channel
Case”)............................................................................................................................................23
Gabcikovo-Nagymaros Case (Hungary v. Slovakia), [1997] ICJ Reports 78 (cited as “Gabcikovo-
Nagymaros Case”)....…………………………………………………………………..24, 25, 27
Intepretation of Peace Treaties with Bulgaria, Hungary and Romania ( Advisory Opinion) [1950]
ICJ Rep 221 (cited as “Interpretation of Peace Treaties Case”) ................................................2,8
Land and Maritime Boundary Case (Cameroon v. Nigeria: Equatorial Guinea intervening),
Preliminary Objections, (Judgment) [1998] ICJ. Rep (cited as “Land and Maritime Boundary
Case”)..............................................................................................................................................9
Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Reports 226…………………….23
Mavrommatis Palestine Concessions, 1924, P.C.I.J., Series A No. 2 (cited as “Mavrommatis
Case”)..............................................................................................................................................2
Nuclear Tests Case (Australia v. France) (Judgment) [1974] I.C.J. Rep 253 (cited as “Nuclear
Tests Case”) ..................................................................................................................................23
Question of Interpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom) (Judgement) [1998]
Z.C.J. Rep( cited as “Libyan Arab Jamahiriya v. UK Case”) .......................................................2
Questions of lnterpretation and Application of the 1971 Montreal Convention arising from the
Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. United States of America), Preliminary
Objections, (Judgment) I.C.J. Reports [1998] (cited as “Libyan Arab Jamahiriya v. USA
Case”)..............................................................................................................................................2
Shrimp Turtle Case (India, Malaysia & Pakistan v. United States), [1999] 38 ILM 121 (cited as
“Shrimp/Turtle Case”)................................................................................................................24
South West Africa Case (Cameroon v. Nigeria: Equatorial Guinea Intervining) Preliminary
Objections (Judgement) [1962] ICJ Rep 328 (cited as “South West Africa Case”)........................8
The MOX Plant Case: The Questions of Supplemental Jurisdiction for International Environmental
Claims (Ireland vs. United Kingdom) ICGJ 343 [2001] (cited as “Mox Plant
Case”)............................................................................................................................................11
Trail Smelter Arbitration (U.S. v. Canada) 1938/1941, R.I.A.A. 1905 (cited as “Trail Smelter
Case”)............................................................................................................................................17
United Mine Workers of America v Gibbs (1966) 383 US 715…………………………………..12
vi
United States Diplomatic and Consular Staff in Tehran (United States v. Iran) (Judgment) [1980]
I.C.J. (cited as "United States Diplomatic and Consular Staff in Tehran Case") ...................26
BOOKS AND TREATISES
Best, R. and Fisher, H. D.. Seasonal breeding of the Narwhal (Monodon monoceros L.) Canadian
J. Tool…………………………………………………………………………………………….18
Boczek, Boleslaw Adam. International Law: A Dictionary………………………………………..8
Brownlie, Ian. Principles of Public International Law (2008)………...………………………….27
Burke, W.T.. The International Law of Fisheries: UNCLOS and Beyond.....................................20
D’Amato, Anthony. “Good Faith in Encyclopedia of Public International Law” (1992)…...……8
Eiriksson, Gudmunder. The International Tribunal for the Law of the Sea (2000)……...………..11
International Law Association’s New Delhi Declaration of Principles of International Law
Relating to Sustainable Development (2002)…………………………………………………….24
Freestone, David. The Road from Rio: International Environmental Law After the Earth Summit
(1994) ............................................................................................................................................12
Hazard Jr., Goffrey C. et al. Pleading and Procedure, State and Federal Cases and Materials (8th
ed., 1999)…………………………………………………………………………………………12
Hanqin, Xue. Transboundary Damage in International Law, Cambridge Studies in International
and Comparative Law (2003)………………………………………………………………...17, 18
Koh, Tommy T.B.. A Constitution for the Oceans in the Law of the Sea (1983)………………..11
Sands, Philippe. Principles of International Environmental Law (2003)................................passim
Schachter, Oscar. International Law in Theory and Practice (1991)…...…………………………18
Shadbolt, Tanya, et.al. Breaking the Ice: International Trade in Narwhals, in the Context of a
Changing Arctic………………………………………………………………………………….18
Webersik, Christian, Climate Change and Security: A Gathering Storm of Global Challenges
(2010) ............................................................................................................................................21
vii
ESSAYS, ARTICLES, AND JOURNALS
Allsopp, Michelle, Santillo, David & Johnston, Paul. A Scientific Critique of Ocean Iron
Fertilization as a Climate Change Mitigation Strategy, GRL TN 07
2007...............................................................................................................................................12
Canadian Council of Ministers of the Environment. 1999. Canadian water quality guidelines for
the protection of aquatic life: Dissolved oxygen (marine). In: Canadian environmental quality
guidelines, 1999, Canadian Council of Ministers of the Environment,
Winnipeg...................................................................................................................................21,22
Coale, K. Open Fertilization for Scientific Study and Caron Sequestration. Adapted from
Encyclopedia of Ocean Sciences..............................................................................................15, 21
R.S. Lampitt et al., Ocean Fertilization: A Potential Means of Geoengineering? 366 Phil.
Transactions Royal Soc’y A 3919, 3922, 3935 (2008)…………………………………………15
Sachs, Noah M. Rescuing The Strong Precautionary Principle from Its Critics, U. I11.L Rev 1285
(2011).............................................................................................................................................12
Secretariat of the Convention on Biological Diversity (2009). Scientific Synthesis of the Impacts
of Ocean Fertilization on Marine Biodiversity. Montreal, Technical Series No.
45..............................................................................................................................................14, 23
Wallace, Doug. Intergovernmental Oceanographic Comm’n, U.N. Educ, Scientific & Cultural
Org. [UNESCO] Ocean Fertilization: A Scientific Summary for Policy Makers, 11, U.N. Doc
IOC/BRO/2010/2.....................................................................................................................15, 21
Weiss, E. Brown, Our Rights and Obligations to Future Generations for the Environment, at 199
(84 AJIL 198 1990) .......................................................................................................................23
Wilson, Grant. Murky Waters: Ambiguous International Law for Ocean Fertilization and Ocean
Fertilization and other Geoengineering, at 521-522 (Texas International Law Journal 2014)
..................................................................................................................................................23, 24
Volbeda, M. Bruce. The MOX Plant Case: The Question of “Supplemental Jurisdiction” for
International Environmental Claims Under UNCLOS...................................................................11
MISCELLANEOUS
Danigelis, Alyssa. Geoengineering Nut Dumps Tons of Iron Into Ocean, Discovery News (Oct 16,
2012, 7:53 PM), http://news.discovery.com/earth/geoengineering-nutball-dumps-tons-of-iron-
into- pacific-121016.html; see generally Charles G. Trick et al., Iron Enrichment Stimulates Toxic
Diatom Production in High-Nitrate, Low-Chlorophyll Areas, 107 Proceedings Nat’l Acad. Sci.
5887 (2010)....................................................................................................................................15
viii
Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural
Resource Management. As approved by the 67th meeting of the IUCN Council, 14-16 May 2007.
Available at: http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf..............................14
Keller, James & Drews, Keven. Iron Sulfate Haida Gwaii Dump Defended, Huffington Post (Oct.
19, 2012, 8:19 PM), www.huffingtonpost.ca/2012/10/19/iron-sulfate-haida-gwaii-dump-
defended_n_ 1984574.html............................................................................................................15
Wendy Watson-Wright et al., Climate Change and Geoengineering: Ocean Fertilization
Practicalities, Opportunities and Threats, IISD (Feb. 4, 2013). Available at: http://climate-
l.iisd.org/guest-articles/climate- change- and- geoengineering- ocean- fertilization- practicalities
opportunities-and-threats...............................................................................................................14
ix
STATEMENT OF JURISDICTION
On 4 April 2016, the Federal States of Aeolia submitted the present case by written
Application instituting proceedings against the Republic of Rinnuco pursuant to Article 40(1) of
this Court’s statute, wherein a state may bring a case before the Court by written Application. In
accordance with Article 36(1) of the ICJ Statute, the jurisdiction of the Court comprises all which
the parties refer to it and all matters specially provided for in the Charter of the United Nations
(UN) or in treaties and conventions in force. On 10 May 2016, the Republic of Rinnuco submitted
a Preliminary Objection contesting the ICJ’s jurisdiction over the matter. On 23 June 2016, the
Registrar of the Court (Registrar) notified both parties that the case had been entered as 2016
General List No. 170.
x
QUESTIONS PRESENTED
I. WHETHER THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER.
II. WHETHER THE REPUBLIC OF RINNUCO VIOLATED INTERNATIONAL LAW
BY CONDUCTING THE INITIAL PHASE OF ITS OCEAN FERTILIZATION
PROJECT IN THE MUKTUK OCEAN AND THAT ANY RE-INITIATION OF THIS
PROJECT WOULD VIOLATE INTERNATIONAL LAW.
xi
STATEMENT OF FACTS
The Federal States of Aeolia (Aeolia) and the Republic of Rinnuco (Rinnuco) are
neighboring coastal states located on Scheflutti, a continent that is completely surrounded by the
Muktuk Ocean (R.1). Both states have large fishing industries (R.2) and Aeolia’s ecotourism
industry includes whale-watching and excursions that focus on Narwhals (R.3).
On 21 November 2014, following an environmental impact assessment, Rinnuco
announced its intention to engage in ocean fertilization (R.12). The purposes were to (1) conduct
rigorous scientific research on the short- and long-term benefits of ocean fertilization; (2) mitigate
climate change; (3) generate potential carbon offsets that Rinnuco might use to meet its emission
reduction targets or commitments; and (4) stimulate fish production (R.12). The project was to
proceed in phases over the course of several years. The initial phase involved adding 15,000 kg.
of ferrous sulfate powder to a 2,000 km2 area located 150-200 miles off Rinnuco’s coast within its
exclusive economic zone (EEZ) (R.15).
On 2 December 2014, Rinnuco notified Aeolia regarding the intended project (R.13).
Aeolia then expressed its concern over the negative impact of ocean fertilization on the Narwhals
and the Muktuk Ocean (R.13).
On 5 January 2015, Rinnuco’s research vessel, Stanlee, began depositing ferrous sulfate
within Rinnuco’s EEZ (R.16).
On 6 January 2015, Aeolia sent a diplomatic note to Rinnuco and alleged that it had
violated international law by conducting its ocean fertilization project. Aeolia emphasized that the
Muktuk Ocean was a shared resource and that Rinnuco had the duty to protect and conserve it.
xii
Aeolia urged Rinnuco to suspend or terminate its ocean fertilization project immediately and
requested for a discussion on the matter (R.17).
On 22 January 2015, Rinnuco denied committing any violation of international law but
agreed to suspend the project after the initial phase (R.18) which was completed on 13 February
2015 (R.19).
On 21 March 2016, after failure of negotiations and mediation, Aeolia requested Rinnuco
to agree to submit the matter to the ICJ (R.22). However, on 28 March 2016, Rinnuco deposited a
notice of revocation of its written declaration pursuant to Article 287 of UNCLOS stating that it
would not submit disputes concerning the interpretation or application of UNCLOS to the ICJ
(R.9). Thereafter, on 4 April 2016, Aeolia submitted an Application to the Court instituting
proceedings against Rinnuco.
On 22 April 2016, nine dead Narwhals were found off the coast of Rinnuco. Researchers
from Aeolia’s Nautilus Research Institute conducted necropsies, the results, however, were
inconclusive as to the cause of death (R.20).
On 4 May 2016, Aeolia reiterated Rinnuco’s violation of international law and maintained
that the ocean fertilization contributed to the death of nine Narwhals and warned that the project
could have other devastating effects on the delicate marine environment around the Muktuk Ocean
(R.20).
Finally, on 10 May 2016, Rinnuco submitted a Preliminary Objection contesting the ICJ’s
jurisdiction (R.23) and suspended its ocean fertilization project until the Court can consider the
matter (R.24).
xiii
SUMMARY OF ARGUMENTS
By the express declaration of the parties recognizing the jurisdiction of the ICJ in the
settlement of any dispute arising from the interpretation or application of the provisions of CBD
and UNCLOS, the Court has jurisdiction over the case. There exists a legal dispute between Aeolia
and Rinnuco concerning the latter’s non-compliance with its treaty obligations, its failure to pursue
in good faith and to bring into conclusion negotiations regarding its ocean fertilization project.
By conducting the initial phase of its ocean fertilization project, Rinnuco breached its legal
obligations to observe the Precautionary Principle and to conserve biodiversity for future
generations as provided under the CBD. Rinucco likewise neglected to conserve and manage
marine living resources, failed to reduce marine pollution and not cause damage to other states as
mandated by the UNCLOS. Furthermore, Rinnuco’s act of conducting its ocean fertilization
project was in violation of the London Protocol.
1
ARGUMENTS
I. THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER.
Article 36(1) of the ICJ Statute provides that the jurisdiction of the Court comprises
all cases which the parties refer to it and all matters specially provided for in the Charter
of the United Nations (UN) or in treaties and conventions in force. Aeolia’s Application
invoking the ICJ’s jurisdiction is made pursuant to the provisions of the CBD and the
UNCLOS.1
A. The ICJ has jurisdiction under Article 27(3) of the CBD.
Article 27(3) provides that for a dispute not resolved by negotiation or mediation,
it accepts one or both means of dispute settlement as compulsory: one, arbitration and two,
submission of the dispute to the ICJ.2
In view thereof, both Aeolia and Rinnuco declared in writing that they would
submit to the jurisdiction of the ICJ whenever a dispute should arise concerning the
interpretation or application of the CBD.3
1. The requirements of Article 27(3) of the CBD were satisfied.
The Court acquires jurisdiction upon fulfillment of three requirements:
first, the failure to resolve any dispute by negotiation or mediation by third person;
second, the applicant must be a contracting party to the CBD; and third, there must
1 CBD of 5 June 1992; UNCLOS of 10 December 1982.
2 Article 27(3), CBD.
3 Record, ¶6.
2
be a dispute arising out of the interpretation or application of the CBD. Moreover,
in the decided cases,4 these requirements must be met as of the date of the filing of
the Application, which date determines when the Court acquires jurisdiction.
First, from January 2015 through March 2016, Aeolia and Rinnuco failed
to resolve the dispute regarding the ocean fertilization project through negotiations
and mediation.5
Second, both states are parties to the CBD and signed in the first year in
which the convention was opened for signature.6 Neither of the two parties made
any withdrawals from the Convention.
Third, there existed between Aeolia and Rinnuco a dispute arising out of the
interpretation or application of the CBD. The Permanent Court of International
Justice (PCIJ) defined the term dispute as a disagreement on a point of law or fact,
a conflict of legal views or of interests between two persons.7 Moreover, in the
Interpretation of Peace Treaties case,8 the ICJ defined dispute as a situation in
which the two sides held clearly opposite views concerning the question of the
performance or non-performance of certain treaty obligations.
4 Arrest Warrant Case, ¶26; Libyan Arab Jamahiriya v. UK Case, at 23-24, ¶38; Libyan Arab
Jamahiriya v USA, at 129, ¶37.
5 Record, ¶22.
6 Id. ¶6.
7 Mavrommatis Case, at 11.
8 Interpretation of the Peace Treaties Case, at 67, 74.
3
a. There existed a disagreement on a point of law or fact between
Aeolia and Rinnuco.
The disagreement stemmed from Rinnuco’s ocean fertilization
project in the Muktuk Ocean. In Aeolia’s diplomatic note to Rinnuco, it
stressed that the project could be disastrous for the marine environment
and could upset the entire food web and negatively impact marine
biodiversity.9 Aeolia urged Rinnuco to act in accordance with the
Precautionary Principle and to abandon its ocean fertilization project.
Aeolia emphasized that ocean fertilization violated Articles 3 and 8
which recognize the responsibility of the state not to cause damage to
the environment of other states as well as its duty to promote and protect
the marine ecosystem.10 Rinnuco’s project likewise violated the CBD
decisions11 which emphasized the duty of states to act in accordance
with the Precautionary Principle.
Rinnuco, on the other hand, denied the allegations of Aeolia12
and proceeded with the initial phase of its ocean fertilization project.13
In the Certain Property case judgment, the Court found that the
complaints of fact and law formulated by Liechtenstein against
9 Record, ¶13.
10 Article 3 and 8, CBD.
11 COP CBD decision IX/16 ¶¶3, 4; X/33 ¶8; XI/20 ¶¶7, 8.
12 Record, ¶14.
13 Id. ¶14.
4
Germany which were denied by the latter concluded that by virtue of
the denial, there is a legal dispute between the states.14
b. Rinnuco’s objection to the Court’s jurisdiction lacks basis.
Rinnuco had made no reservation to limit the scope of Article
27 in the settlement of disputes arising out of the interpretation and
application of the CBD.
As the Court clarified, the mere denial of the existence of a
dispute does not prove its non-existence. In a situation wherein two
sides hold clearly opposite views concerning the question of
performance or non-performance of certain treaty obligations, the Court
must conclude that international disputes have arisen.15
B. The ICJ has jurisdiction under Article 287(1) of the UNCLOS.
Article 287(1) provides that when signing, ratifying or acceding to the Convention
or at any time thereafter, a state shall be free to choose, by means of a written declaration,
one or more means for the settlement of disputes concerning the interpretation or
application of the Convention.16
14 Certain Property Case, at 18, ¶23.
15 Supra note 8, at 74-75.
16 Article 287(1), UNCLOS.
5
Aeolia and Rinnuco have expressly chosen the ICJ by means of written declarations
pursuant to Article 287 and accepted the jurisdiction of the Court for the settlement of
disputes concerning the interpretation or application of the UNCLOS.17
1. Rinnuco’s notice of revocation did not divest the Court of its jurisdiction.
Article 287(6) and (7) emphasizes two important points for the validity and
effectivity of the written revocation. First, the written revocation will take effect
only three months after the notice had been deposited with the Secretary General
of the UN. Second, the notice of revocation will not affect proceedings pending
before a Court or tribunal having jurisdiction, unless otherwise agreed by the
parties.18
a. The case was already pending before the ICJ prior to the effectivity
of Rinnuco’s written revocation.
Aeolia’s Application instituting proceedings against Rinnuco
was acknowledged by the Registrar on 23 June 2016.19 Upon the other
hand, the effectivity of Rinnuco’s revocation was to take effect only on
28 June 2016. Moreover, pursuant to Article 287(7) of the UNCLOS,
the notice of revocation will not affect proceedings pending before a
Court having jurisdiction, unless otherwise agreed to by the parties.
17 Record ¶9.
18 Article 287(6)(7), UNCLOS.
19 Record at 2.
6
There was no agreement between Aeolia and Rinnuco to terminate or
withdraw the proceedings before the ICJ.
i. The case was pending before the Court on 23 June 2016.
The ICJ Handbook provides that proceedings may be
instituted by means of a unilateral Application submitted by an
applicant state against a respondent state. It further provides that
the date of receipt by the Registry of the Application marks the
opening of proceedings before the Court.20
On 4 April 2016, Aeolia filed an Application instituting
proceedings against Rinnuco.21 Thereafter, on 23 June 2016, the
Registrar acknowledged its receipt and informed both parties that
the Case of Questions Relating to Ocean Fertilization and Marine
Biodiversity was entered as 2016 General List No. 170.22
ii. Rinnuco’s notice of revocation takes effect on 28 June 2016.
On 28 March 2016, Rinnuco deposited a notice of revocation
of its written declaration pursuant to Article 287.23 The notice
stated that Rinnuco would not submit disputes concerning the
interpretation or application of the UNCLOS.24 Appyling Article
20 The ICJ: Handbook, at 49-50.
21 Record, Annex B.
22 Id. at 2.
23 Record, ¶9.
24 Id.
7
287(6), the notice of revocation will not take effect until three
months after notification or on 28 June 2016.
2. Rinnuco failed to observe good faith and abused its rights under UNCLOS.
Article 300 provides that states parties shall fulfill in good faith the
obligations assumed under the Convention and shall exercise the rights, jurisdiction
and freedoms recognised in the Convention in a manner which would not constitute
an abuse of right.25
First, Rinnuco’s revocation constituted bad faith. Aeolia’s referral of the
dispute to the Court was premised on Article 286 which provides that subject to
Section 3, when a dispute concerning the interpretation and application of the
Convention is not settled by peaceful means, it shall be submitted at the request of
any party to the Court having jurisdiction under Section 2 of the UNCLOS.26
Negotiations and mediation between the states failed. Hence, the dispute must then
be submitted for resolution before the ICJ based on their written declaration under
Article 287. On 21 March 2016,27 Aeolia requested to submit the dispute before the
Court and seven days later or on 28 March 2016, Rinnuco invoked its written
revocation and contended that the ICJ has no jurisdiction over the matter.
Second, Rinnuco’s exercise of its rights under Article 287 constitutes an
abuse of rights. The doctrine of abuse of rights emanates from the premise that even
when undertaking acts that are not prohibited by international law, states ought to
25 Article 300, UNCLOS.
26 Article 286, UNCLOS.
27 Clarifications, A13.
8
avoid acting in an arbitrary manner and exercise their rights with reasonable regard
to the interests of other states.28 While right to revoke is recognized under the
Convention, Rinnuco’s act in revoking its consent is arbitrary and without regard
to the interests of Aeolia.
Abuse of rights is further illustrated in the Trail Smelter Arbitration case
wherein the legitimate activities of Canada resulted in transborder pollution
affecting the United States.29 A state may not exercise its international rights for
the sole purpose of causing injury nor fictitiously to mask an illegal act or to evade
an obligation.30 Should the question regarding the legality of the ocean fertilization
project remain pending, its continuation shall pollute the Muktuk Ocean and cause
harm to Aeolia.
3. There existed a legal dispute between Aeolia and Rinnuco under UNCLOS.
The ICJ emphasized that the expression positive opposition must not be
taken literally.31 Whether there is a dispute in a given case was a matter for objective
determination by the Court.32 It must be shown that the claim of one party was
positively opposed by the other.33 The Court’s determination must turn to an
examination of the facts. The matter is one of substance, not of form.34 The Court
28 International Law: A Dictionary by Boleslaw Adam Boczek, at 37.
29 Id. at 28.
30 Antony D’Amato, “Good Faith in Encyclopedia of Public International Law” (1992), at 600.
31 Application Elimination of All Forms Racial Discrimination Case, at 16, ¶30.
32 Supra note 8, at 74.
33 South West Africa Case, at 328.
34 Supra note 31, at 84.
9
has recognized that the existence of a dispute may be inferred from the failure of a
state to respond to a claim in circumstances where a response is called for.35 While
the existence of a dispute and the undertaking of negotiations are distinct as a matter
of principle, negotiations may help demonstrate the existence of a dispute and
delineate its subject-matter.36
The legal dispute under UNCLOS arose from Rinnuco’s implementation of
its ocean fertilization project which caused the death of the Narwhals. Particularly,
Rinnuco violated Articles 64, 65, 192, 195 and 210 which encompass ocean
dumping, the conservation of the marine environment, and the protection of the
Monodontidae family, which include Narwhals and other cetaceans. Aeolia
strongly opposed the project and stated that any re-initiation was a violation of
UNCLOS.
4. The ICJ has jurisdiction to settle disputes arising from the interpretation
and application of international agreements.
Article 288(2) provides that the Court or tribunal referred to in Article 287
shall also have jurisdiction over any dispute concerning the interpretation or
application of an international agreement related to the purposes of the UNCLOS,
which is submitted to it in accordance with the agreement.37 Four requirements38
must be satisfied: first, the parties must have chosen a procedure of dispute
35 Land and Maritime Boundary Case, at 315, ¶89.
36 Supra note, 31.
37 Article 288(2), UNCLOS.
38 Id. at 36.
10
settlement under Article 287; second, the international agreement must be related
to the purposes of the Convention; third, the non-UNCLOS agreement expressly
conferred jurisdiction upon UNCLOS tribunals; and fourth, there was a dispute in
the interpretation or application of an international agreement.
First, by express stipulation of the parties, both states chose the ICJ as a
means for the settlement of disputes concerning the interpretation or application of
international treaty obligations.39
Second, both the preamble of the UNCLOS40 and the London Protocol
(LP)41 express the need to protect the marine environment and to promote the
sustainable use and conservation of marine resources. Furthermore, there is
similarity of legal obligations set forth in both Article 195 of the UNCLOS which
emphasizes the duty not to transfer damage or hazards or transform one type of
pollution into another42 and Article 3(3) of the LP which calls on the duty of
contracting parties not to 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.43
Third, there was an express reference to the UNCLOS tribunal in matters of
dispute settlement in the LP. Article 16(3) provides that, “In the event an agreement
to use one of the procedures listed in paragraph 1 of Article 287 of the UNCLOS is
39 Record ¶7.
40 Preamble (4), UNCLOS.
41 Preamble (1), LP.
42 Article 195, UNCLOS.
43 Article 3(3), LP.
11
reached, the provisions set forth in Part XV of that Convention that are related to
the chosen procedure would also apply, mutatis mutandis.”44
Fourth, there existed a dispute arising from the interpretation and
application of LP. Rinnuco admitted that the matter of ocean fertilization arose
primarily under the LP and its Resolutions but contended that it had withheld its
consent to the Court’s jurisdiction under Article 16. Aeolia alleged that Rinnuco
had violated Article 3.3 on transboundary harm and Article 4 on dumping of wastes.
5. ICJ’s jurisdiction encompasses all rules of international law not
incompatible with the UNCLOS.
Article 293(1) provides that a court or tribunal having jurisdiction under this
section shall apply the Convention and other rules of international law not
incompatible with the Convention. UNCLOS represents a multinational
undertaking that remains to be the most complex and all-encompassing treaty in the
history of the UN.45 It is famously characterized as a constitution for the oceans.46
The UNCLOS assumes an integrating function, allowing and encouraging
Tribunals to implement a wider body of law than those contained strictly within the
four corners of the Convention’s articles.47 Thus, supplemental jurisdiction is
44 Article 16(3), LP.
45 Gudmunder Eiriksson, The International Tribunal for the Law of the Sea at 145-47 (Kluwer Law
Intl., The Hague, 2000).
46 Tommy T.B. Koh, A Constitution for the Oceans, in The Law of the Sea, xxxiii (U.N. Pub. Sales
No. E.83.V.5, 1983).
47 The MOX Plant Case: The Question of “Supplemental Jurisdiction” for International
Environmental Claims Under UNCLOS by M. Bruce Volbeda, at 226.
12
recognized and permits the hearing of several related claims together in a single
forum, thereby avoiding the inefficiency of a myriad of claims in multiple fora.48
II. RINNUCO BREACHED ITS TREATY OBLIGATIONS UNDER
INTERNATIONAL LAW.
A. Non-observance of the Precautionary Principle.
The Precautionary Principle is a tool for decision-making in a situation of
scientific uncertainty49 and places a default hold on certain activities that may pose
serious risks. The principle establishes a stop and think mechanism under which the
risk creator bears the burden both to quantify the risk and to disclose relevant risk data
to regulators.50
The act of Rinnuco in proceeding with the initial phase of its ocean fertilization
project is non-observance of the Precautionary Principle. The principle calls for
Rinnuco to postpone the project since the introduction of artificial substances such as
ferrous sulfate into the ocean causes the depletion of other essential nutrients used up
by the phytoplankton population. This would adversely affect biological productivity
and change the structure of the marine food web. 51
48 Gibbs, 383 U.S. at 725-26; see also Goffrey C. Hazard, Jr. et al., Pleading and Procedure, State
and Federal Cases and Materials at 423 (8th ed., 1999).
49 Freestone, The Road from Rio: International Environmental Law After the Earth Summit, 6 JEL
at 211(1994).
50 Noah M. Sachs., Rescuing The Strong Precautionary Principle From Its Critics, U.Ill.L.Rev 1285 (2011).
51 Michelle Allsopp, David Santillo & Paul Johnston, A Scientific Critique of Ocean Iron
Fertilization as a Climate Change Mitigation Strategy, GRL TN 07 2007. 1, 11 (2007).
13
1. The Precautionary Principle is codified in the CBD.
The CBD’s Preamble provides that where there is a threat of significant
reduction or loss of biological diversity, lack of full scientific certainty should not
be used as a reason for postponing measures to avoid or minimize such a threat.52
This definition is an embodiment of the Precautionary Principle.53
First, CBD decision IX/16 requests parties to act in accordance with the
precautionary approach and to ensure that ocean fertilization activities do not take
place until there is adequate scientific basis on which to justify the activities.54
Second, CBD decision X/33 provides that no climate change related
geoengineering activity that may affect biodiversity take place until there is
adequate scientific basis on which to justify such activities.55
Furthermore, CBD decision XI/20 notes and reaffirms the need for the
precautionary approach for geoengineering activities that have a potential to cause
significant and adverse transboundary effects.56
52 Preamble (9), CBD.
53 Philippe Sands, Principles of International Environmental Law, at 270 (2nd ed. 2003).
54 Supra note 11.
55 Id.
56 Id.
14
2. The elements of the Precautionary Principle are present.57
First, there is uncertainty as to the ocean fertilization project’s risks. CBD
decisions58 recognize the absence of reliable data covering all relevant aspects of
ocean fertilization and the potential risk of harm it may produce. The eleven59 major
ocean iron fertilization (OIF) projects also express the lack of data as to whether
the projects are safe. The process of ocean fertilization intends to change and
interfere with the natural processes of nature thereby bearing the likelihood of an
adverse outcome on marine biodiversity.60 Furthermore, studies suggest that ocean
fertilization poses unknown risks to biogeochemical cycles of nutrients which may
be harmful to marine animals and plant life.61
Second, the threat of harm is present. The Precautionary Principle cautions
against activities that may cause harm or damage. The excessive dumping of ferrous
sulfate into the ocean causes an abnormal rapid growth of phytoplankton that
collect carbon dioxide from the atmosphere and changes the natural chemistry of
sea water. This harmful effect is known as ocean acidification and is harmful to
57 Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural
Resource Management .As approved by the 67th meeting of the IUCN Council, 14-16 May
2007. Available at: http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf.
58 Supra note 11.
59 Secretariat of the Convention on Biological Diversity (2009). Scientific Synthesis of the Impacts
of Ocean Fertilization on Marine Biodiversity. Montreal, Technical Series No. 45, at 46 &
50.
60 Supra note 58.
61 Wendy Watson-Wright et al., Climate Change and Geoengineering: Ocean Fertilization
Practicalities, Opportunities and Threats, IISD (Feb. 4, 2013). Available at: http://climate-
l.iisd.org/guest-articles/climate- change-and-geoengineering-ocean-fertilization-
practicalities-opportunities-and-threats.
15
marine corals, plants and animals. Furthermore, ferrous sulfate alters the ratio of
ocean nutrients which may contribute to the expansion of harmful algal blooms.62
Finally, the threat of harm is serious and irreversible in nature. Present
global warming is attributed to the accumulation of greenhouse gases (GHG) such
as carbon dioxide, nitrous oxide and methane. Ocean fertilization causes an increase
in GHG produced from higher levels of nitrous oxide, about 320 times more potent
than carbon dioxide and methane, thereby hastening climate change.63 It further
causes the phytoplankton to release a deadly poison 64 and excessive artificial
ferrous sulfate can spur a type of algal bloom which may cause illness and even
death in humans and marine life.65 These effects contribute to risks of serious
damage to the surrounding environment.66
62 Coale, K. Open Ocean Fertilization for Scientific Study and Carbon Sequestration. Adapted from
Encyclopedia of Ocean Sciences (Eds. Steele, Yentch and Turekian).
63 Doug Wallace, Intergovernmental Oceanographic Comm’n, U.N. Educ., Scientific & Cultural
Org. [UNESCO], Ocean Fertilization: A Scientific Summary for Policy Makers, at 11,
U.N. Doc. IOC/BRO/2010/2 (2010).
64 Alyssa Danigelis, Geoengineering Nut Dumps Tons of Iron Into Ocean, Discovery News (Oct
16, 2012, 7:53 PM), http://news.discovery.com/earth/geoengineering-nutball-dumps-tons-
of-iron-into- pacific-121016.html; see generally Charles G. Trick et al., Iron Enrichment
Stimulates Toxic Diatom Production in High-Nitrate, Low-Chlorophyll Areas, 107
Proceedings Nat’l. Acad. Sci. 5887 (2010).
65 R.S. Lampitt et al., Ocean Fertilization: A Potential Means of Geoengineering? 366 Phil.
Transactions Royal Soc’y A 3919, 3922, 3935 (2008).
66 James Keller & Keven Drews, Iron Sulfate Haida Gwaii Dump Defended, Huffington Post (Oct.
19, 2012, 8:19 PM), www.huffingtonpost.ca/2012/10/19/iron-sulfate-haida-gwaii-dump-
defended_n_ 1984574.html.
16
B. Rinnuco failed in its obligation not to cause harm to other states.
1. Transboundary harm is codified in CBD, UNCLOS and LP.
Transboundary harm is defined as the harm caused in the territory of or in
other places under the jurisdiction or control of a state other than the state of origin,
whether or not the states concerned share a common border.67
a. Transboundary harm is codified in CBD.
The Draft Articles on Transboundary Harm’s definition of the
principle is substantially similar to Article 3 of the CBD which stipulates
that states have, in accordance with the Charter of the UN and the
principles of international law, the sovereign right to exploit their own
resources pursuant to their environmental policies and the responsibility
to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other states or to areas beyond the limits
of national jurisdiction.
b. Transboundary harm is codified in UNCLOS.
The UNCLOS provides that in taking measures to prevent,
reduce and control pollution of the marine environment, states shall act
as not to transfer, directly or indirectly, damage or hazards from one
area to another or transform one type of pollution into another.68
67 Article 2, Draft Articles on Transboundary Harm.
68 Article 195, UNCLOS.
17
c. Transboundary harm is codified in LP.
The LP contains a provision analogous to that of the CBD and
UNCLOS codifying the principle of transboundary harm. One of the
general obligations of contracting parties in implementing the LP is not
to act in a way as to 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.69
2. The elements of transboundary harm are present.
Four requisites must concur for transboundary harm to be caused, as
discussed below.70
a. Nexus between the activity and the damage.
There should be a physical linkage between the activity in
question and the damage caused by it. The activities in one state must
directly give rise to harm in a neighboring state or states.71 Before
Rinnuco implemented the first phase of its ocean fertilization project and
after its suspension, there were no recorded deaths of Narwhals in the
Muktuk Ocean.72
69 Article 3.3, LP.
70 Trail Smelter Arbitration Case (USA versus Canada).
71 Xue Hanqin, Transboundary Damage in International Law, at 5.
72 Clarifications, A27.
18
b. Human causality.
Transboundary damage should have some reasonably proximate
causal relation to human conduct.73 The death of the Narwhals was
caused by the dumping of 15,000 kg. of ferrous sulfate powder, an
artificial and unnatural substance, into the Muktuk Ocean.
c. Threshold criterion.
The threshold criterion presupposes that the damage caused
should be at least greater than mere nuisance or insignificant harm
which is normally tolerated.74
Ocean fertilization is the process of introducing man-made
nutrients in enormous quantities into the ocean. Narwhals are near
threatened species as assessed by the IUCN Red List of Threatened
Species.75 There are only approximately eighty thousand narwhals
existing today.76 Narwhals are seasonal breeders and gestation involves
only a single calf.77 Therefore, the loss of nine Narwhals greatly affects
the species’ population.
73 Schachter, International Law, at 366; Id. at 6.
74 Supra note 70 at 8.
75 Tanya Shadbolt et.al., Breaking the Ice: International Trade in Narwhals, in the Context of a
Changing Arctic, at 1.
76 Id.
77 Best, R. and H.D. Fisher, Seasonal breeding of the narwhal (Monodon monoceros L.) Canadian
J. Tool, at 429-431.
19
Ocean fertilization causes the proliferation of harmful algal
blooms which may lead to oxygen deficiency in the Muktuk Ocean.
d. Transboundary movement of harmful effects.
The Muktuk Ocean is a shared resource of both Aeolia and
Rinnuco. The ocean fertilization project, although conducted within
Rinnuco’s EEZ, causes prejudice and damage to Aeolia’s ecotourism
and fishing industry.
C. Rinnuco failed in its duty to conserve and preserve the marine environment.
The UNCLOS requires states to follow two main environmental objectives: first,
to conserve and manage marine living resources and second, to prevent, reduce and control
marine pollution.78
The LP further requires parties to: first, protect and preserve the marine
environment from all sources of pollution and second, take measures to prevent, reduce
and eliminate pollution caused by dumping at sea of waste or other matter.79
1. Rinnuco failed to cooperate with Aeolia in the conservation of migratory
species.
Article 64 of UNCLOS provides that coastal states shall cooperate to ensure
conservation of migratory species both within and beyond the EEZ. Cooperation
does not only mean that states exchange views, but also concrete suggestions on
78 Supra note 53 at 396; UNCLOS, Preamble.
79 Article 2, LP.
20
specific conservation and optimum utilization of resources that would eventually
lead to an agreement.80
On 2 December 2014, Rinnuco notified Aeolia regarding its planned ocean
fertilization project.81 Aeolia responded by requesting Rinnuco to act in accordance
with the Precautionary Principle and to abandon the same due to serious concerns
that the project would adversely affect the Narwhals and fish.82 Unheeded, on 5
January 2015, Rinnuco commenced the first phase of the project which failed to
take into account the protection of the Narwhal’s population.83
2. Failure to prevent and reduce marine pollution.
a. Introduction of ferrous sulfate through ocean fertilization is
dumping.
Under Article 1(1) of the UNCLOS and Article 1(4.1) of the LP,
dumping is defined as any deliberate disposal of waste or other matter
from vessels.84 Waste and other matter is thereafter defined as any
material and substance of any kind, form or description.85 Ferrous
sulfate is a material or substance of some kind, form or description.
80 Burke, W.T., The New International Law of Fisheries: UNCLOS 1982 and Beyond at 219 (1994).
81 Record, ¶14.
82 Record, ¶13.
83 Record, ¶16.
84 Article 1(1), UNCLOS; Article 1(4), LP.
85 Article 1(8), LP.
21
b. Ocean fertilization pollutes the ocean.
The UNCLOS provides that states shall take all measures that
are necessary to prevent, reduce, and control pollution of the marine
environment from any source86 or by dumping.87 On the other hand, the
LP prohibits the dumping of any wastes or other matter.88 The pollution
of the marine environment is defined as the introduction by man of
substance or energy into the marine environment which results or is
likely to result in the deleterious effects as harm to living resources and
marine life.89
The dumping of ferrous sulfate into the ocean causes pollution.
It leads to the abnormal growth of phytoplankton in large quantities that
depletes oxygen in the deep ocean.90 Since oxygen is essential for the
respiration of marine life,91 the lack of oxygen shall result in the death
of some species and marine plant life.92 Furthermore, ferrous sulfate
86 Article 194(1), UNCLOS.
87 Article 210(2), UNCLOS.
88 Article 4.1, LP.
89 Article 1(4)(10), LP.
90 Christian Webersik, Climate Change and Security: A Gathering Storm of Global Challenges
(2010), at 95.
91 Canadian Council of Ministers of the Environment. 1999. Canadian water quality guidelines for
the protection of aquatic life: Dissolved oxygen (marine). In: Canadian environmental
quality guidelines, 1999, Canadian Council of Ministers of the Environment, Winnipeg.
92 Supra note 62 at 9-10.
22
increases deep-ocean acidification, thereby hindering the growth of
organisms which directly impact the marine food chain.93
3. Rinnuco does not have exclusive rights over shared resources within its
EEZ.
The EEZ is an area beyond and adjacent to the territorial sea not extending
beyond 200 nautical miles from the baselines from which the breadth of the
territorial sea is measured.94 Within the EEZ, a state has the sovereign right to
explore, exploit, and do marine scientific research.95 There is no absolute right over
the shared resources since it also comes with the duty to protect and preserve the
marine environment.96
Article 56(2) and Article 58(3) of the UNCLOS provides that in exercising
rights within the EEZ, coastal states shall have due regard to the rights and duties
of other states and shall act in a manner compatible with the provision of this
Convention.97
The 1978 UNEP Draft Principles on Shared Natural Resources also provide
that states have the duty to cooperate in the field of environment concerning the
93 Supra note 91.
94 Article 55, 57, UNCLOS.
95 Article 56(1), UNCLOS.
96 Article 192, UNCLOS.
97 Article 56(2), 58(3), UNCLOS.
23
conservation and harmonious utilization of natural resources shared by two or more
states.98
Furthermore, sovereignty embodies the obligation of every state not to
allow its territory to be used for acts contrary to the rights of other states.99
D. Rinnuco failed to promote Sustainable Development.
1. Non-observance of the intergenerational responsibility.
The UN General Assembly provides that states commit to protect and
restore the health, productivity and resilience of oceans and marine ecosystems, to
maintain their biodiversity, enabling their conservation and sustainable use for
present and future generations.100 The idea, that as members of the present
generation, we hold the earth in trust for future generations,101 is well known to
international law, having been relied upon as early as 1893 by the United States in
the Pacific Fur Seals Arbitration case.102 Moreover, in its Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, the ICJ recognizes that the
environment is not an abstraction but represents the living space, the quality of life
and the very health of human beings, including generations yet unborn.103
98 1978 UNEP Environmental Law Guidelines and Principles on Shared Natural Resources Principle 1.
99 Corfu Channel Case at 22.
100 United Nations General Assembly Resolution 66/288, July 27, 2012, (UNGA).
101 E. Brown Weiss, Our Rights and Obligations to Future Generations for the Environment, at 199
(84 AJIL 198 1990).
102 Supra note 53 at 256.
103 ICJ Reports 1996, at 226.
24
At present, only one of the eleven ocean fertilization projects conducted
worldwide since the 1990s had published promising results regarding carbon
sequestration.104 Therefore, Rinnuco’s claim that ocean fertilization may help
mitigate climate change lacks evidentiary basis.
2. Violation of Sustainable Development.
Article 8 of the CBD provides that states shall regulate or manage biological
resources important for the conservation of biological diversity whether within or
outside protected areas, with a view to ensure their conservation and sustainable
use.
Sustainable Development is development that meets the needs of the present
without compromising the ability of the future generations to meet their own
needs.105 The term is now established as an international legal concept.106 In the
Shrimp/Turtle case, the WTO Appellate Body characterizes sustainable
development as a concept which has been generally accepted as integrating
economic and social development and environmental protection.107
Four elements comprise the legal elements of sustainable development:
first, the principle of intergenerational equity; second, the principle of sustainable
104 Grant Wilson, Murky Waters: Ambiguous International Law for Ocean Fertilization and Ocean
Fertilization and other Geoengineering, at 521-522 (Texas International Law Journal
2014).
105 1987 Brundtland Report, supra note 53, at 252.
106 International Law Association’s New Delhi Declaration of Principles of International Law
Relating to Sustainable Development (2002).
107 Supra note 52, at 257, citing Shrimp/Turtle case, ¶129.
25
use; third, the principle of equitable use or intragenerational equity; and fourth, the
principle of integration.108
The first element focuses on the need to preserve natural resources for the
benefit of future generations. The second element provides that natural resources
are to be exploited in a manner which is sustainable, prudent, rational, wise or
deemed appropriate. The third element refers to the equitable use of natural
resources which implies that the use by one state must take into account the needs
of other states. Finally, the fourth element requires that environmental
considerations are integrated into economic and other development plans,
programmes and projects, and that the same are taken into account in applying
environmental objectives.109
In the Gabcikovo-Nagymaros case,110 the concept declaring that the need to
reconcile economic development with the protection of the environment is aptly
expressed in the concept of Sustainable Development. No reconciliation of the
possible advantages of Rinnuco’s project with the protection of both states’ shared
resource after the first phase of ocean fertilization was conducted.
108 Id. at 253.
109 Supra note 53 at 253.
110 Gabcikovo-Nagymaros, at ¶ 140.
26
E. Rinnuco is responsible for an internationally wrongful act.
An internationally wrongful act exists when an act or omission is one, attributable
to the state and two, it constitutes a breach of an international obligation of a state.111 Both
elements are necessary to find a state responsible.112 This Court referred to two elements:113
first, it must first determine how the acts in question may be regarded to the state and
second, it must show the compatible obligations of the state under treaties in force or under
any rule of international law that may be applicable.114
1. The act is attributable to Rinnuco.
On 21 November 2014, Rinnuco announced its intention to engage in an
ocean fertilization project and notified Aeolia on 2 December 2014.115
On 15 December 2014, Rinnuco’s legislative body passed a law approving
and fully funding the project.116
Finally, on 5 January 2015, Rinnuco conducted the initial phase of the
project by dumping ferrous sulfate into the ocean which led to the death of the
Narwhals.117
111 Responsibility of States for Internationally Wrongful Acts, Art.2, G.A. Res. 56/ 83, Annex.
UN.Doc. A/RES/58/83/Annex (2002).
112 Commentary on the Articles on State Responsibility, Rep. of the Int’l Law Comm’n, 53rd Sess.,
Apr. 23- June 1, July 2- August 10, 2001, 202-03, UN.Doc. A/56/10; GAOR, 56th Sess.,
Supp. 10 (2001).
113 Id. at 34.
114 United States Diplomatic and Consular Staff in Tehran Case, at 3 & 29 ¶56, Cf. at 41, ¶90.
115 Record, ¶12.
116 Id. ¶15.
117 Id. ¶16, 20.
27
2. The act constituted a breach of an international obligation.
An act which produces a result which on its face is a breach of legal
obligation gives rise to responsibility in international law, whether the obligation
rests in treaty, custom, or some other basis.118 This element has also been expressed
as failure to comply with treaty obligations.119
Rinnuco failed to comply with its CBD obligations by the non-observance
of the Precautionary Principle and the principle of Sustainable Development and
by causing great damage to the marine biodiversity of the Muktuk Ocean and the
death of the Narwhals.
Rinnuco likewise violated its UNCLOS treaty obligations when it failed to
cooperate with Aeolia in the conservation of migratory species, caused pollution
and abused its rights over the shared marine resources within its EEZ.
Finally, Rinnuco failed to comply with treaty obligations under the LP when
it proceeded to dump ferrous sulfate into the ocean and caused transboundary
damage to Aeolia.
118 Ian Brownlie, Principles of Public International Law, at 429 (Oxford U. Press, 2008).
119 Supra note 110, ¶57.
28
CONCLUSION AND PRAYER
The Federal States of Aeolia respectfully requests the Court to adjudge and declare that:
1. The Court has jurisdiction to determine the matter; and
2. The Republic of Rinnuco violated international law by conducting the initial phase of its
ocean fertilization project in the Muktuk Ocean and that any re-initiation of this project
would violate international law.
RESPECTFULLY SUBMITTED,
AGENTS FOR THE APPLICANT