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THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE,
THE HAGUE, THE NETHERLANDS
21st ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL
MOOT COURT COMPETITION
Questions Relating to
Ocean Fertilization and Marine Biodiversity
FEDERAL STATES OF AEOLIA
(APPLICANT)
V.
REPUBLIC OF RINNUCO
(RESPONDENT)
MEMORIAL FOR THE FEDERAL STATES OF AEOLIA
(APPLICANT)
Page 2 of 44
TABLE OF CONTENTS
Title Page
Cover Page …………………………………………………………………………... 1
Table of Contents ……………………………………………………………………. 2
Index Authorities ……………………………………………………………….......... 3
Statement of Jurisdiction ………………………………………………...................... 12
Questions Presented ………………………………………………………................. 13
Statement of Facts ………………………………………………………………….... 14
Summary of Arguments ………………………………………………………………18
Main Arguments……………………………………………………………………… 19
I. The jurisdiction of ICJ is based on forum prorogatum…………………….19
II. The respondent committed an International Wrongful Act……..................29
III. The respondent did not abide with CMS: Narwhals are protected
species……………………...........................................................................38
IV. The respondent breached CBD: Narwhals is a part of mass biological
diversity……………………………………………………………………40
V. UNCLOS’protection on biodiversity was breached by respondent……….41
Reliefs…………………………………………………………………………………...43
Page 3 of 44
INDEX OF AUTHORITIES
Treaties and Conventions
Title Short Citation Page Cited
Addis Ababa Principles Addis Ababa
Principles
24, 41
Articles on Responsibility of States for
International Wrongful Acts
Articles on
Responsibility of
States
29
Charter of the United Nations UN Charter 20, 21
Convention on Biological Diversity CBD 21, 22, 23, 25, 26, 27,
28, 40, 41
Convention on Investment Disputes CID 20
Convention on the Conservation of
Migratory Species of Wild Animals
CMS 21, 22, 23, 25, 26, 38, 39
Convention on the Prevention of Marine
Pollution by Dumping of Wastes and
Other Matter
London Convention 21, 22, 23, 25, 26, 34,
37, 38,
Declaration of the United Nations
Conference on Human Environment
Stockholm
Declaration
29, 35
Hague Convention on Highjacking Hague Convention 20
Paris Climate Change Convention Paris Convention 37
Page 4 of 44
Protocol to the Convention on the
Prevention of Pollution by Dumping of
Wastes and other Matter (1996 as
amended by 2006 Protocol)
London Protocol,
1996 (as amended by
2006 Protocol)
21, 22, 23, 25, 26, 30,
31, 33, 35, 37, 38
Rio Declaration on Environment and
Development
Rio Declaration 29
Rules of Court of the International Court
of Justice
ICJ Rules of Court 19, 20
Statute of the International Court of
Justice
ICJ Statute 20, 21
United Nations Convention on the Law of
the Sea
UNCLOS 26, 27, 41, 42, 43
United Nations Convention on the
Prevention and Punishment of the Crime
of Genocide
Genocide Convention 20
Vienna Convention on the Law of Treaties VCLT 27, 28, 29, 34, 37, 38,
39, 42
Documents from Conference of Parties on the Convention on Biological Diversity,
London Convention and United Nations General Assembly
Title Short Citation Page Cited
Page 5 of 44
Conference of the Parties, Annex II,
Decision VII/2, Guidelines for the
Sustainable Use of Biodiversity
COP, Annex II,
Decision VII/2
41
Conference of the Parties, Annex to
Recommendation I/8
COP, Annex to
Recommendation I/8
24
Conference of the Parties, Decision V/18,
Impact Assessment, Liability and Redress
COP, Decision V/18 24
Conference of the Parties, Decision VI/11,
Liability and Redress
COP, Decision VI/11 24
Conference of the Parties, Decision VII/2,
Sustainable Use
COP, Decision VII/2 24
Conference of the Parties, Decision VII/5,
Marine and Coastal Biological Diversity
COP, Decision VII/5 24
Conference of the Parties,
Recommendation I/8, Scientific,
Technical and Technological Aspects and
Sustainable Use of Coastal and Marine
Biodiversity
COP,
Recommendation I/8
23, 24
Resolution 1, 2(2010) London Convention,
Resolution 1, 2
(2010)
31
Page 6 of 44
United Nations General Assembly
A/RES/67/L21
UN General
Assembly,
A/RES/67/L21
30
United Nations General Assembly,
A/RES/62/215
UN General
Assembly,
A/RES/62/215
30
United Nations General Assembly,
A/RES/66/288
UN General
Assembly,
A/RES/66/288
30
International Court of Justice Decisions and Jurisprudence of International Tribunals
and Other Tribunals
Title Short Citation Page Cited
Artico v Italy, ECHR, Series A, No. 37,
1980
Artico v Italy 39
Australia vs. Japan: New Zealand
Intervening ICJ Reports 2014, pp. 226
Whaling in the
Antartic
33
Bosnia v. Yugoslavia, ICJ Reports, 1996 Application of the
Genocide Convention
20
Congo v. France, ICJ Press Release,
2007/11
Certain Criminal
Proceedings in
France
20
Page 7 of 44
Djibouti vs. France, ICJ Reports, 2008 Certain Questions of
Mutual Assistance in
Criminal Matters
20
France v. Norway, 9 I.C.J. 1957 Norwegian Loans
Case
32
Germany v. Poland (Merits), 17 PCIJ
(Series A) 29, 51 (1928)
Chorzów Factory
Case (Merits)
32
Hungary v. Slovakia, ICJ Reports, 1997,
116 ILR, p. 1;
Gabcikovo-
Nagymaros Project
37
Italy v. France, United Kingdom of Great
Britain and Northern Ireland and United
States of America, ICJ Reports, 1954, p
19, 54
Monetary Gold Case 20
Loizidou v. Turkey,
ECHR, Series A, No. 310, p. 23 (1995);
103 ILR, p. 621
Loizidou v. Turkey 39
Minors Oposa v. Secretary of the
Department of Environment and Natural
Resources, Supreme Court of the
Philippines, GR No. 101083, July 31,
1991
Oposa v. Factoran 29, 35
New Zeland v. France, ICJ Reports, 1995,
pp. 288, 341; 106 ILR, pp. 1, 63
Request for an
Examination of the
35
Page 8 of 44
Situation in
Accordance with
Paragraph 63 of the
Nuclear Tests Case
(Dissenting Opinion:
Judge Weeramantry)
New Zeland vs France, December 20,
1974, ICJ Reports, 20 December 1974, pp.
253, 268; 57 ILR, pp. 398, 413
Nuclear Test Case
(Judgment)
36, 37
Nicaragua v. Honduras, ICJ Reports,
1988, p. 105; 84 ILR, p. 218
Border and
Transborder Armed
Actions case
37
Nicaragua v. Honduras, ICJ Reports,
1988, p 69
Case Concerning
Border and
Transboder Armed
Actions
20
Nicaragua v. United States of America
(Merits), 1986 I.C.J. 14
Military and
Paramilitary
Activities in and
against Nicaragua
(Merits)
32
Portugal v. Australia, ICJ Reports, 1995, p
102
East Timor Case 20
Page 9 of 44
Qatar v. Bahrain (Merits), ICJ Reports,
2001, paras. 110 ff
Maritime
Delimitation and
Territorial Questions
between Qatar and
Bahrain (Merits)
33
Qatar vs Bahrain, ICJ Reports, 1994, p
112 and ICJ Reports, 1995, p 6
The Case Concerning
the Maritime
Delimitation and
Territorial Questions
Between Qatar and
Bahrain
19
Shrimp Turtle Case, WTO Appellate
Body, 38 ILM, 1999
Shrimp Turtle Case 37
Soering v. United Kingdom, European
Court of Human Rights, Series A, No.
161, p. 34 (1989); 98 ILR, p. 270
Soering v. UK,
European Court of
Human Rights
39
United Kingdom v. Albania (Preliminary
Objection), ICJ Reports, 1948
Corfu Channel Case
(Preliminary
Objection)
19
United Kingdom v. Albania, (Merits), ICJ
Reports, 1949
Corfu Channel Case
(Merits)
32, 35
US Diplomatic and Consular Staff in
Tehran, ICJ Reports, 1980, p 3, 24
The Iranian Hostage
Case
20
Page 10 of 44
United States vs Canada, 3 RIAA 1905
(1938)
US v Canada 35
Title Page Cited
Chittharanjan Felix. Amerasinghe, Evidence in International
Litigation (Brill, 2005)
32
A. D’Amato, ’Do We Owe a Duty to Future Generations to
Preserve the Global Environment?’, 84 AJIL, 1990
35
Di Torro, D. M., Zarba, C. S., Hansen, W. J., Berry, W. J., Swartz,
R.C., Cowan, C. E., Pavlou, S. P., Allen, H. E., Thomas, H. A.,
and Paquin, P. R., “Technical basis for establishing sediment
quality criteria for non-ionic organic compounds using
equilibrium partitioning.” Environ. Toxicol. Chem. 10(12), 1541-
1583 (1991).
36
E. Weiss, ‘Our Rights and Obligations to Future Generations for
the Environment’, 84 AJIL, 1990, and E. Weiss, Intergenerational
Equity
35
Eduardo Valencia-Ospina, Evidence Before the International
Court of Justice, 1 Int’l L.F. D. Int’l 203 (1999)
32
F.G.Minujin, ’Debt-for-Nature Swops:A Financial Mechanism to
Reduce Debt and Preserve the Environment’, 21 Environmental
Policy and Law, 1991
34
Page 11 of 44
Harrison, Principles of Internal Medicine (18th edition, McGraw
Hill Companies, Inc, 2012)
35
Jens Evensen, Evidence Before International Courts, 25 Nordisk
Tidsskrift Int’l Ret 44 (1955)
32
Carol Mattson Port, Pathophysiology: Concepts of Altered Health
States (Lippincott Williams and Wilkins, 1993)
36
Neill H. Alford, Jr., Fact Finding by the World Court, 4 Vill. L.
Rev. 37 (1959)
32
D. Polit and C. Beck, Research and Evaluation (6th edition) 36
Shabtai Rosenne, Law and Practice of the International Court (vol
2, M. Nijhoff, 1997)
19
Susan George, The Debt Boomerang: How Third World Debts
Harm Us All, (Pluto Press, London, 1992)
34
S. Yee, ‘Forum Prorogatum in the International Court’, 42
German YIL, 1999
19
Philippe Sands, Principles of International Environmental Law
(Cambridge University Press, 2003)
35
W. Michael Reisman and Eric E. Freedman, The Plaintiff’s
Dilemma: Illegally Obtained Evidence and Admissibility in
International Adjudication, 76 (4) AJIL 737-753 (Oct., 1982)
32
Page 12 of 44
STATEMENT OF JURISDICTION
The Federal States of Aeolia and the Republic of Rinnuco and pursuant to Article 36 and
Article 40 of the Statute of the International Court of Justice and Article 38 (5) of the Rules of
Court, submit to the International Court of Justice the present Application instituting proceedings
against the Republic of Rinnuco concerning the jurisdiction over this dispute and the case of
Questions Relating to Ocean Fertilization and Marine Biodiversity, through a special agreement
signed in The Hague, The Netherlands, on the eleventh day of July in the year two thousand
sixteen. Applicant submits to the jurisdiction of the Court.
Page 13 of 44
QUESTIONS PRESENTED
A. Whether or not the Republic of Rinnuco is within the mandatory jurisdiction of the
International Court of Justice under the doctrine of forum prorogatum and the jus cogens
principle of international law
B. Whether or not the Republic of Rinnuco commited International Wrongful Act
C. The Republic of Rinnuco has breached its International Obligation on: London Convention
and its protocols, Convention on the Conservation of Migratory Species and Wild animals,
United Nations Convention on the Law of the Sea, and Convention on Biological Diversity:
the Breach of the treaties is attributable to the State through a state organ.
Page 14 of 44
STATEMENT OF FACTS
On 15 December 2014, the Republic of Rinnuco, through law, approved and planned the
ocean fertilization project in Muktuk Ocean where a precious shared resource between states is
located. The applicant initiated protests and negotiations on its adverse effect on marine
biodiversity in relation to respondent’s international obligation but was not heeded. On 22 April
2015, nine dead narwhals were found dead off the coast of respondent.
The Parties
The applicant and respondent are neighboring coastal states in Scheflutti which is
surrounded by the Muktuk Ocean. The marine biodiversity is comparable to Greenland and other
countries in the Arctic Circle. Narwhals inhabit the Muktuk Ocean and are seen in the waters
Aeolia and Rinnuco.
The applicant’s diversified industrial economy focuses on fishing and ecotourism including
whale watching. It has a small research institute, the Nautilus Research Institute, which studies
narwhals. The respondent’s developed and diversified industrial economy includes fishing
activities.
Page 15 of 44
International Obligation
Both States ratified the CBD acknowledging the compulsory jurisdiction of the ICJ;
London Convention, London Protocol; CMS; and Kyoto Protocol also recognizing the compulsory
jurisdiction of the ICJ. The parties ratified the UNCLOS and consented to ICJ’s jurisdiction but
respondent, on March 28, 2016, through notice revoked such jurisdiction.
Both states signed the Paris Convention and attended with full participation to the
Stockholm Declaration, Rio Declaration, 2002 World Summit on Sustainable Development, and
2012 Rio Conference at Rio de Janeiro.
The Dispute
On 21 November 2014, the respondent, after an extensive environmental impact
assessment, announced its plans for Ocean Fertilization hoping to stimulate phytoplankton growth.
It notified the applicant about the planned ocean fertilization where the applicant expressed its
concern on the adverse effect of ocean fertilization on marine environment in Muktuk Ocean and.
Respondent was urged to uphold its international obligation, the precautionary principle, and
abandon the project. The respondent’s legislature approved and funded the project through phases
which are successively large.
On 5 January 2015, respondent’s research vessels, Stanlee, deposited ferrous sulfate
approximately 175 miles off the coast of Rinnuco. The applicant warned that respondent is violating
international law in transgression of the precautionary principle and Article 3.1, Article 3.3,
Article 4, Resolution LC-LP.1 (2008), Resolution LC-LP.2 (2010), Resolution LP.4(8), and other
Page 16 of 44
provisions of the London Convention and its Protocols. Respondent was urged to terminate the
project immediately and meet with the applicant to discuss more fully and consider other options.
Respondent countered that the project’s purpose was scientific and averred that the London
Convention’s amendments are not yet in force. Respondent did not follow the Assessment
Framework and the Environmental Impact Assessment as the Resolutions to the London Protocol
are non-binding within its legal system. The respondent favored the ocean fertilization and
abstained from voting at conferences of the parties in multilateral environmental agreements which
prohibits ocean fertilization. No domestic action was taken to implement the London Convention’s
Resolutions. Rinnuco temporarily suspended the project after the initial phase and will resume the
project at its discretion.
On 22 April 2015, nine dead narwhals were found off the coast of the respondent. The
Nautilus Research Institute’s necropsy shows that the results were inconclusive. The applicant
attributes this to the Ocean Fertilization Project and urges the respondent to act in accordance with
the precautionary principle and terminate the remainder of its project to avoid causing
transboundary harm.
Rinnuco deposed that the death of the narwhals is not attributable to the project and averred
that it has acted in accordance to CBD, has not caused any transboundary harm, has conducted an
environmental impact assessment and notified the applicant the project. Respondent contends non-
violation on CMS and UNCLOS and has not harmed the marine environment and biodiversity. It
contends that the project is beneficial to marine biodiversity, fish production, and scientific
information and that respondent is authorized under UNCLOS. Respondent claims that the United
Nations General Assembly Resolutions are non-binding, and United Nations General Assembly
Page 17 of 44
Resolution 62/215 actually encourages States to support the further study and enhance
understanding of ocean iron fertilization.
On 27 February 2015, respondent submitted its intended nationally determined
contribution in anticipation of the Paris Convention and committed to reduce greenhouse gas
emissions by 50% by 2030. This demonstrates respondent’s dedication to reducing greenhouse gas
emissions and mitigating climate change, and its ocean fertilization project and other ocean
fertilization projects could help to sequester carbon dioxide and mitigate climate change which, in
turn, could benefit marine biodiversity in Muktuk Ocean. Rinnuco plans to resume its ocean
fertilization project within the next year.
From January 2015 through March 2016, additional negotiations, followed by mediation,
were conducted between the Federal States of Aeolia and the Republic of Rinnuco, but the process
failed to resolve the dispute regarding Rinnuco’s ocean fertilization project.
Page 18 of 44
SUMMARY OF ARGUMENTS
1. Respondent must observe ICJ’s mandatory jurisdiction under the CBD to which the CMS,
UNCLOS and London Convention and it Protocols subsidiarily apply; and the mandatory
jurisdiction of the ICJ on VCLT based on jus cogens principle
2. The Republic of Rinnuco committed an International Wrongful Act
a. The act is attributable to a state through a state organ
b. Respondent violated the CMS, CBD, UNCLOS, and London Convention and its
Protocols
Page 19 of 44
MAIN ARGUMENTS
I. The Jurisdiction of the ICJ based on forum prorogatum
The ICJ Rules of Court provides for the doctrine of forum prorogatum and states that when
an application is made by a state against another state whose consent is yet to be given, no action
shall be taken unless the state against which the application is made consents to the jurisdiction of
the court for the purposes of the case1.
It is submitted that the consent of the state to the Court’s jurisdiction may be established
by means of acts subsequent to the initiation of the proceedings2 to avoid the impression that the
Court is extending its jurisdiction by means of fiction and that there must be a showing that such
1 Art 38 (5), ICJ Rules of Court
2 Shabtai Rosenne, Law and Practice of the International Court (vol 2, M. Nijhoff, 1997), p 672
and S. Yee, ‘Forum Prorogatum in the International Court’, 42 German YIL, 1999, p 147
Page 20 of 44
consent is voluntary and indisputable3. However in Qatar v. Bahrain4 Minutes of the Meeting
between the two foreign ministers can ground the ICJ of its jurisdiction5.
For the doctrine to apply, the consent of the state must (1) must be explicitly and clearly
deduced from the conduct of the state, and (2) the extent of the consent depends upon the matching
of the application made with the expression by the other party of its consent6. The application must
specify the legal grounds to which the jurisdiction of the Court is to be based7. In some instances,
the application of the forum prorogatum were observed due to Security Council’s
recommendation8 but the doctrine will not apply when the rights of third parties will be the subject
matter of the decision9 even in erga omnes obligations10.
The Court may assume jurisdiction over the dispute is when there is a compromise clause
contained in the treaty to which the applicant and the respondent is a state party11. There have been
3 Corfu Channel Case (Preliminary Objection), United Kingdom v. Albania, ICJ Reports, 1948, p
27; Application of the Genocide Convention, ICJ Reports, 1996, p 595
4The Case Concerning the Maritime Delimitation and Territorial Questions Between Qatar and
Bahrain, ICJ Reports, 1994, p 112 and ICJ Reports, 1995, p 6
5 Ibid, ICJ Reports, 1995, p 17, 25
6Certain Criminal Proceedings in France, ICJ Press Release, 2007/11
7Certain Questions of Mutual Assistance in Criminal Matters, ICJ Reports, 2008, par 163
8 Article 25, UN Charter
9 Monetary Gold Case, ICJ Reports, 1954, p 19, 54
10 East Timor Case, ICJ Reports, 1995, p 102
11Article 40, ICJ Statute; Article 38, ICJ Rules of Court
Page 21 of 44
a number of international instruments which grants jurisdiction on the ICJ such as: (1) The
Genocide Convention, (2) Convention on Investment Disputes and (3) Hague Convention on
Highjacking, and numerous others. These have been applied also in some cases such as: (1)
Application of the Genocide Convention12, (2) US Diplomatic and Consular Staff in Tehran13 and
(3) Case Concerning Border and Transboder Armed Actions14.
In view of this is the competence of the ICJ to decide its own jurisdiction15 where
jurisdiction is exercised over all disputes which parties refer to it and matters specially provided
for in the UN Charter, Treaties and Conventions in force16. The disputes may refer to: (1)
interpretation of treaty, (2) questions of international law, and (3) existence of fact which
constitutes a breach of international obligation and the nature and extent of the reparation to be
made17. From the foregoing principles, the applicant therefore submits the following:
A. Respondent must observe ICJ’s mandatory jurisdiction under the CBD to which the
CMS and London Convention and it Protocols subsidiarily apply
12Bosnia v Yugoslavia, ICJ Reports, 1996, p 595
13The Iranian Hostage Case, ICJ Reports, 1980, p 3, 24
14Nicaragua v Honduras, ICJ Reports, 1988, p 69, 76
15Article 36 (6), ICJ Statute
16 Article 36 (1), Ibid
17 Article 36 (2), Ibid
Page 22 of 44
The applicant and the respondent are state parties to the CBD18 where they made an
unqualified submission on the mandatory jurisdiction of the ICJ over disputes concerning the
interpretation and application of the treaty19 when the solution through negotiation, good offices,
or request by mediation by a third party failed20. The issue therefore is whether or not there has
been a failure to exhaust the modes of conciliation under paragraph two (2) or three (3) of Article
27 of the CBD.
It is humbly submitted that there has been exhaustion of the remedies under Article 27 (1
& 2) of the said convention. The exchange of diplomatic notes constitutes a negotiation by the
parties21. There have been mediations and other modes of dispute resolution to the effect which
also failed22. These events trigger the jurisdiction of the ICJ albeit the disjunctive language of
Article 27 (3) of the CBD23.
CBD also provides for the applicability of other conventions for it reaffirms that while
states have sovereign rights over their own biological resources, there is a note that it is vital to
anticipate, prevent, and attach the causes of significant reduction or loss of biological diversity at
source and that the lack of full scientific certainty should not be used as a reason for postponing
18 Paragraph 5, Record
19 Article 27 (3), CBD
20 Article 27 (2 & 3), Ibid
21 Paragraphs 13, 14, 17, 18, 20, & 21, Record
22 Paragraph 22, Record
23 *** dispute settlement as compulsory: *** (b) Submission of the dispute to the International
Court of Justice
Page 23 of 44
measures to avoid or minimize such threat24. The convention should be understood in the light of
other conventions pertaining to the conservation of life since CBD desires to enhance and
complement existing international arrangements for the conservation of biological diversity and
sustainable use of its components for the benefit of the present and future generations25.
The applicant submits the applicability of the CMS and the London Convention and its
Protocols, as a subsidiary source of obligations on the present action against the respondent. It was
provided by the CBD that it shall not affect the rights and obligations of any contracting party
deriving from any existing international agreement except there the exercise of those rights and
obligations would cause a serious damage and threat to biological diversity26. The following
obligations under the CMS therefore are activated by the quoted article:
1. That the parties acknowledge the need to take action to avoid any migratory species
becoming endangered27 since the narwhals move in between the coasts of the Rinnuco
and Aeolia28 and have been listed on the Appendix II of the CMS29
24 Preamble, CBD
25 Preamble, Ibid
26 Article 22 (1), Ibid
27 Article II (2), CMS
28 Article I (1) (a), Ibid
29 Paragraph 8, Record
Page 24 of 44
2. The benefits of the migratory species should be given priority and those species in an
unfavorable conservation status30. The respondent refuses to settle with its obligation
to desist from its Ocean Fertilization Project31
While the London Convention provides for arbitration as a mode of dispute resolution32,
the Court is not precluded to apply such convention since the state parties, in their conference to
the CBD, have provided the taking into account of the existing conventions and the applicability
of liability regimes under other international instruments pertaining to the dumping of wastes and
other matters such as:
1. The minimization of municipal waste and the promotion of the integrated marine and
coastal biodiversity with the undertaking of an environmental impact assessment33
2. The inclusion on national plans the basic management elements recommended for the
reduction of waste which affects biological diversity34
3. The implementation of environmentally sustainable mariculture practices on the use of
chemicals and minimization of high nutrient release35
4. The recognition on the use of mariculture but with the precaution its threat to marine
and biological diversity such as wide scale destruction and degradation of natural
30 Article IV (3), CMS
31 Paragraph 20, Record
32 Article 16, London Protocol, 1996 (as amended by 2006 Protocol)
33 No. 10 (a), COP, Recommendation I/8
34 No. 12 (c), Ibid
35 No. 15 (I) (a), Ibid
Page 25 of 44
habitats and the observation of the precautionary approach in mariculture
development36
5. The applicability of other conventions with regards to the development and application
of liability regimes under other multilateral agreements37
6. The making available to the international community the information and issues
regarding those that may cause damage to biological diversity38
7. Development of effective methods for effluent and waste control39
8. The application of the Addis Ababa Principle 11 stating that users of biodiversity
components should minimize waste and adverse environmental impact and optimize
benefits from uses40
The jurisdictional scope of the applicability of the CBD includes thereon the applicability
of the CMS and the London Convention and its Protocols. They shall apply in the following
instances:
1. In the case of components of biological diversity, in areas within the limits of its
national jurisdiction
36 No. 11, COP, Annex to Recommendation I/8
37 No. 7, COP, Decision V/18
38 No. 2, COP, Decision VI/11
39 Operational Objective No 4.1 (a) (iii), COP, Decision VII/5
40 Practical Principle 11, Addis Ababa Principles; Annex II, Decision VII/2
Page 26 of 44
2. In the case of processes and activities, regardless of where their effects occur, carried
out under its jurisdiction or control, within the area of its national jurisdiction or beyond
the limits of national jurisdiction.41
The respondent’s consent refers to those activities that are: (1) made within its jurisdiction
but their effects extend outside its national jurisdiction and (2) made outside its jurisdiction and
their effects extent to another state’s jurisdiction. Hence, there should be a due observance by the
respondent on the provisions of the treaties, and the appropriation of regulation, management, or
control of risk associated with the use and release of living modified organisms resulting from
biotechnology which are likely to have adverse environmental impacts affecting the conservation
and sustainable use of biological diversity42 including the use of elements that adversely affect the
habitats of the narwhals.
The Ocean Fertilization Project is an in-situ activity for it stimulates of the growth of
phytoplanktons43, which are foods for the narwhals44, by respondent45 through the introduction of
ferrous sulfate within its exclusive economic zone46. This is because the genetic resources exist
within the ecosystem and natural habitats47. It is therefore mandated, with due observance to the
41 Article 4, CBD
42 Article 8 (f), Ibid
43 Paragraph 12, Record
44 Paragraph 13, Ibid
45 Paragraph 15, Ibid
46 Paragraph 15, Ibid
47 Article 2, CBD
Page 27 of 44
provisions of the CBD, that respondent observe the provisions of the CMS and the London
Convention and its 1996 and 2006 Protocols.
B. ICJ has jurisdiction over the dispute within UNCLOS
The contracting parties shall implement the CBD with respect to the marine environment
consistently with the rights and obligations of states under the law of the sea48. This refers to the
rights of the state under the UNCLOS which shall not be reduced except insofar as it contravenes
the provisions of the CBD and other related treaties and conventions. Hence the identification and
enjoyment of the specific rights of the state within those zones or territories as identified by the
UNCLOS is effectively limited by and is subject to the provisions of the CBD, CMS and the London
Convention and its Protocols.
It is undisputed that the Ocean Fertilization Project was conducted in the Muktuk Ocean
in a 2, 000 sqkm land area which is located approximately 150 to 200 miles off the coast of
Rinnuco49. While the respondent has the sovereign right to explore, conserve, exploit and manage
the natural resources within its exclusive economic zone50, the respondent has the obligation to
observe due regard to the rights and duties of other states51 taking into account all relevant
circumstances and conventions to which the states are state parties, and the interests involved to
48 Article 22 (2), Ibid
49 Paragraph 15, Record
50 Article 56 (1) (a), UNCLOS
51 Article 56 (2), Ibid
Page 28 of 44
the parties as well as to the international community as a whole52 which in this case includes the
jus cogens principles and customary international law such as right to environment and balanced
ecology, and precautionary principles. The UNCLOS obliges the coastal state, in its exclusive
economic zone, to ensure the proper conservation and management measures to the maintenance
of the living resources in the area53 which makes a stricter approach on marine mammals where
states shall conserve small cetaceans and work with international organizations for their
conservation and management54.
The respondent’s notice of revocation on the jurisdiction of the ICJ on the interpretation
and application of the UNCLOS 55 must fail since Article 59 (2) and Article 30(3) of the VCLT
provides for the application of an earlier treaty insofar as they are compatible with the provisions
of the latter treaty and when the earlier treaty is suspended, the suspension shall be removed if it
appears in the latter treaty that such is the intention of the parties. Since the CBD is the latter treaty,
its provisions with respect to jurisdiction should prevail56.
C. ICJ has jurisdiction over the dispute based on jus cogens principles
52 Article 59, Ibid
53 Article 61 (2), Ibid
54 Article 65, Ibid
55 Paragraph 9, Record
56 Answer to Question No. 5, Clarifications
Page 29 of 44
In reference to Article 66 of the VCLT on jus cogens principles, the applicant submits the
application to the ICJ57 and not through arbitration. The language of the self-executing provision
of the law suggests the mandatory jurisdiction of the ICJ when the issue involves the applicability
of jus cogens principles. The applicant submits that the existing conventions regarding biological
diversity and the environment are jus cogens principles since the CBD defines the conservation is
a common concern of all mankind which is important to the evolution and maintenance of
life sustaining systems of the biosphere58. To this is the responsibility of the states to ensure that
the activities within their control or jurisdiction do not cause damage to the environment of other
states or of areas beyond the limits of their jurisdiction59. There are three principles that apply
regarding state responsibility and consequently on the jurisdiction of the ICJ: (1) biological
diversity is a common concern of all mankind, (2) biological diversity contributes to the proper
maintenance of the biosphere, and (3) it is the biosphere that maintains life on the Gaea which
benefits all its inhabitants most especially humans.
Biological diversity, as a common concern of all mankind, is a res communis which
requires a strict regulation on exploration and exploitation and needs the establishment of
management mechanisms which would employ the criterion of equity in distributing the benefits
of such activity. This is consistent with the precautionary approach and states are mandated to
observe the strict liability doctrine because any act that adversely affect the right of other states
and consequently its inhabitants both with respect to their right to life and their right to a healthful
57 Article 66 (a), VCLT
58 Preamble, CBD
59 Article 3, Ibid
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and balance ecology as espoused by the provisions of the Stockholm Declaration and the Rio
Declaration which codifies environmental law as a jus cogens principle.
The respondent, it is bound to observe the declarations pertaining to the environment,
biodiversity and biosafety since attendance is a signification of an intent to be bound by the
provisions of the said declarations60. None other than the VCLT provided that a state is mandated
to refrain from acts that would defeat the object and purpose of the treaty61. Both declarations refer
to the primordial requirement of the right to life referring to the environment since man is both a
creature and molder of the environment62 which must be understood in the light of the
interdependence of earth63 and commonly known as the rhythm and harmony of nature or
ecology64.
II. The respondent committed an International Wrongful Act
The respondent's legislation to effect the ocean fertilization plan equates to attribution by
a state organ65. The issue leans towards to plan to stimulate phytoplanktons growth through ocean
60 Paragraph 11, Record
61 Article 18, VCLT
62 Preamble, Stockholm Declaration
63 Preamble, Rio Declaration
64 Oposa v. Factoran, GR No. 101083 (Philippines), (1991)
65Article 4 (1) (2), Articles on Responsibility of States
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fertilization66 where, despite the stern warning of applicant67, respondent continued, with its
national legislation, by dumping 15,000 kg of ferrous sulfate over the Muktuk Ocean68. This
caused the death of nine Narwhals off the Coast of Rinnuco69. The exchange of diplomatic notes70
shows direct espousal of the respondent on the ocean fertilization rendering direct attribution of
liability to state.
A. Respondent violated the 1996 Protocol to the London Convention
The preambular clause of the treaty seeks to establish the prevention and elimination of
pollution of the marine environment from dumping at the sea71. It emphasizes the intent of the
state parties on the obligation to apply a precautionary approach72 to environmental protection
upon 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 causal relation between
66 Paragraph 12, Record
67 Paragraph 13, Ibid
68 Paragraph 15, Ibid
69 Paragraph 20, Ibid
70 Paragraphs 13 - 20, Ibid
71 Preamble, London Protocol, 1996 (as amended by 2006 Protocol)
72 Paragraphs 158, 162 & 167, United Nations General Assembly, A/RES/66/288; Preamble,
Paragraphs 82, 88, 98 (B), 110, United Nations General Assembly, A/RES/62/215; Paragraph
48, 171 in relation to 146 & 173, United Nations General Assembly, A/RES/67/L21
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inputs and their effects73. The treaty, both states are parties74, renders operative all provisions
therein vesting every enforceable and demandable rights under its purview.
1. Ferrous Sulfate is prohibited by the Protocol.
Any deliberate disposal into the sea of wastes or other matters75 which does not fall under
the exception clauses76 is prohibited. The used of Ferrous Sulfate77 for alleged reduction of the
carbon emission is ineligible for dumping under the protocol being an inert inorganic geological
material78 and bulky items comprising of iron79 which are generated not in a small island with
small community and has practicable access other than dumping. The release of 15,000 kg. of
ferrous sulfate over a 6 week period to a 2000 square kilometer area within the respondent’s
exclusive economic zone80 falls at par with the criteria of the protocol to be includible within the
prohibition of dumping wastes and other matter81.
73 Article 3(1) London Protocol, 1996 (as amended by 2006 Protocol); Resolution 1, 2 (2010), 4
(8) London Convention-Protocol (2008)
74 Paragraph 17, Record
75 Article 1, 8, London Protocol, 1996 (as amended by 2006 Protocol)
76 Section 1 Annex 1, Ibid
77 Paragraph 15, Record
78 Article 1(5), Annex 1, London Protocol, 1996 (as amended by 2006 Protocol)
79 Article 1(7) Annex 1, Ibid
80 Paragraph 15, Record
81 Article 4, London Protocol, 1996 (as amended by 2006 Protocol)
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2. Extensive study as a condition precedent for dumping wastes
The treaty calls the duty on the respondent make a detailed description and characterization
of the waste and a precondition for consideration of alternatives in deciding whether it may be
dumped. The records do not show compliance on the requisites aside from the conduct of the
extensive environmental impact assessment82. The applicant submits that there should be a
convincing evidence to this effect83 and not on self-serving assertions84 when an ample opportunity
to prove the fact in issue85 is given. The respondent’s extensive environmental assessment findings
is disputed86 as it modifies the food web of marine biodiversity. The disputed fact appears to be in
the possession of the respondent. The burden of evidence is upon the respondent on this matter87.
82 Paragraph 12, Record
83 Military and Paramilitary Activities in and against Nicaragua (Merits), 1986 I.C.J. 14
84 Chorzów Factory Case (Merits), 17 PCIJ (Series A) 29, 51 (1928)
85 Eduardo Valencia-Ospina, Evidence Before the International Court of Justice, 1 Int’l L.F. D.
Int’l 203 (1999); Jens Evensen, Evidence Before International Courts, 25 Nordisk Tidsskrift
Int’l Ret 44 (1955); W. Michael Reisman and Eric E. Freedman, The Plaintiff’s Dilemma:
Illegally Obtained Evidence and Admissibility in International Adjudication, 76 (4) AJIL 737-
753 (Oct., 1982); Neill H. Alford, Jr., Fact Finding by the World Court, 4 Vill. L. Rev. 37
(1959)
86 Paragraph 13, Record
87 Corfu Channel Case, 1949 I.C.J.; Chittharanjan Felix. Amerasinghe, Evidence in International
Litigation (Brill, 2005); Norwegian Loans Case, 9 I.C.J. 1957
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The bare assertion of compliance of having extensive environmental impact fails to convince as
it is a conclusion of fact warranting recalibration of evidence. In Whaling in the Antarctic
Case88 the respondent has the burden of evidence relative to the remedial measures done contrary
to the precautionary principle.
3. No assessment finding was given to the applicant
The respondent cannot ignore the facts89 that warrant the availability of relevant
information to the other contracting party relative to the scientific and technical activities and
measures undertaken90; vigilant monitoring and assessment conducted91; and scientific and
technological programs and their objectives.92 The diplomatic notes93 equate into an international
agreement94 and a negotiation vehicle for the absence of formal compliance renders not its
efficacy95. This is a request96 to make information available as discussed above. Though not
88 ICJ Reports 2014, pp. 226
89 Paragraph 13,14,16-21, Record
90 Article 14 (2.1), London Protocol, 1996 (as amended by 2006 Protocol)
91 Article 14 (2.3), Ibid
92 Article 14 (2.2), Ibid
93 Paragraph 13 & 17, Record
94 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Merits), ICJ
Reports, 2001, paras. 110 ff.
95 Ibid, paras. 143 ff.
96 Article 14 (2), London Protocol, 1996 (as amended by 2006 Protocol)
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denominated as such, the treaty provisions must be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose97. This renders operative the duty to make available the disputed information
which the respondent omitted.
4. No consultation was made with the applicant
The London Convention required the consultation with the other party who may be affected
and promptly recommend the most appropriate procedures adopted. This is pursuant to mandatory
duty of the avoidance of damage to marine environment. The respondent’s action and manner of
informing is blue-sky and perfunctory98 because the overt act failed to seek opinion or information
to make a decision as it is commonly understood99. The subsequent exchange of notes negates the
respondent’s contention.
5. The precautionary principle was not observed
The respondent’s ocean fertilization100 upon the applicant’s dissent101 is a reasonable nexus
upon the death of the narwhals102. This error is what precautionary seeks to abhor by taking
97 Article 31, VCLT
98 Paragraph 13, Record
99 Article 31, VCLT
100 Paragraphs 13, 15, 18, & 21, Record
101 Paragraphs 14, & 17, Ibid
102 Paragraph 20, Ibid
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preventive and reactive remedial measures103. Parties must strive to take precautionary measures
to prevent or minimize environmental degradation and agree that the polluter should bear the cost
of pollution, transboundary or otherwise, with due regard to the public interest and without
distorting investment in the energy cycle or international trade.104 The fact that huge mass of
biodiversity is at stake upon the execution of the ocean fertilization should have called a higher
degree of diligence to take preventive measures proportionate to its economic and scientific
capabilities105 to avoid any environmental degradation with reasonable nexus106 to the disputed
103 F.G.Minujin,’Debt-for-NatureSwops: A Financial Mechanism to Reduce Debt and Preserve
the Environment’, 21 Environmental Policy and Law, 1991, p. 146, and Susan George, The
Debt Boomerang: How Third World Debts Harm Us All, (Pluto Press, London, 1992), pp. 30–
1.
104 A. D’Amato, ’Do We Owe a Duty to Future Generations to Preserve the Global Environment?’,
84 AJIL, 1990, p. 190; Philippe Sands, Principles of International Environmental Law
(Cambridge University Press, 2003), p. 199; E. Weiss, ‘Our Rights and Obligations to Future
Generations for the Environment’, 84 AJIL, 1990, p. 198, and E. Weiss, Intergenerational
Equity.; Oposa v.Factoran, Supreme Court of the Philippines, GR No. 101083, July 31, 1991,
33 ILM, 1994, pp. 173, 185, and The Request for an Examination of the Situation in
Accordance with Paragraph 63 of the Nuclear Tests Case (Dissenting Opinion: Judge
Weeramantry), ICJ Reports, 1995, pp. 288, 341; 106 ILR, pp. 1, 63.
105 Article 2, London Protocol, 1996 (as amended by 2006 Protocol)
106 Stockholm Declaration
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act. The strict liability doctrine107 and the maxim “sic utere tuo ut alienum non laedas”108
mandate nations with responsibility to ensure that activities do not cause damage to the
environment. Respondent should have cautioned in doing the ocean fertilization and should have
calculated the propensity of hurting the mass biodiversity and human threats because iron
substances when taken into the body may cause physiologic imbalances and pathophysiologic
conditions causing fatality if left medically unattended109. The nexus between the dumping and
the Narwhals death is supported by a study110 finding that iron compounds leads to toxic levels
and debilitation. It shows only 1 percent margin of error111. The reactive measure of the
respondent to temporarily cease its project and upon completion of the first phase assessment
findings, discretion will be exercised to meet the exigencies112 is flawed.
107 US v Canada, 3 RIAA 1905 (1938)
108Corfu Channel Case (Merits), ICJ Reports, 1949
109 Harrison, Principles of Internal Medicine (18th edition, McGraw Hill Companies, Inc, 2012),
p. 676-684; Carol Mattson Port, Pathophysiology: Concepts of Altered Health States
(Lippincott Williams and Wilkins, 1993), p. 1432.
110 Di Torro, D. M., Zarba, C. S., Hansen, W. J., Berry, W. J., Swartz, R.C., Cowan, C. E., Pavlou,
S. P., Allen, H. E., Thomas, H. A., and Paquin, P. R., “Technical basis for establishing
sediment quality criteria for non-ionic organic compounds using equilibrium partitioning.”
Environ. Toxicol. Chem. 10(12), 1541-1583, (1991).
111 Polit and Beck, Research and Evaluation (6th ed), pp. 56;
112 Paragraph 19, Record
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6. No proper observance of the pacta sunt servanda
The rule of pacta sunt servanda is based on good faith113 in the exercise of international
obligations114. The requirement of compliance and good faith militates against the respondent for
there was no compliance with the precautionary principle and London Protocol. The reservation
clause cannot be invoked115 because the act is contrary to the object and purpose of the treaty116.
7. Paris Convention does not justify non-compliance with the London Convention and its
Protocols
Respondent’s defense on reduction of the greenhouse gases in compliance with the Paris
Convention may not be invoked because it is only a signatory and not a state party. The obligation
is limited only to non-performance of any act defeats the purpose of the Treaty117. Respondent
failed to consider that by doing so, it made a unilateral discretion to curtail and suspend the treaty’s
operation which is not sanctioned by VCLT. Non-compliance of the other state is not an excuse to
113 Nuclear Tests Cases (Judgment), ICJ Reports, 20 December 1974, pp. 253, 268; 57 ILR, pp.
398, 413
114 Border and Transborder Armed Actions Case, ICJ Reports,
1988, p. 105; 84 ILR, p. 218;
115 Paragraph 7, Record
116Article 19, VCLT
117Article 18, Ibid
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justify the non-compliance of a State party because the purpose treaty remains.118 Declarations of
a State agent bind the State which cloaked the authority119. State parties are bound to comply in
good faith120 on every obligation and may not invoke its internal law121 to justify non-
compliance122 with the London Convention and its Protocols. The respondent’s violation of the
doctrine of pacta sunt servanda123 warrants a breach of its international obligation.
III. The respondent did not abide with CMS: Narwhals are protected species
Both state parties ratified124 the Convention which cloaked protection over Narwhals125
that inhabit the Muktuk ocean126 which are included in Annex I127. The protection is not limited to
118 Gabcikovo-Nagymaros Project, ICJ, 1997,pp.78, 116 ILR, p. 1; Shrimp Turtle Case, WTO
Appellate Body, 38 ILM, 1999, p. 121 para. 129
119 Nuclear Test Case (Judgment), 20 December 1974
120 Section 26, VCLT
121 Paragraph 18, Record
122Section 27, VCLT
123 Article 26, Ibid
124 Paragraph 8, Record
125 Section 4, Appendix I & II, CMS
126 Paragraph 3, Record
127 Section 4, Appendix I & II, CMS
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the named species128 and migratory species with higher taxon129, it is subject to expansion to
species with unfavorable conditions which require international agreements for their conservation
and management130. The treaty imposed upon the state parties to take necessary steps to conserve
the species and their habitats131 to avoid being endangered132. Migratory species may be listed in
both Appendices because of the possibility of avoiding distinction between those covered by
independent agreement and not. This is to give effect to the doctrine that provisions of a treaty
should be harmonized to give effect to all without defeating the treaty’s purpose133 or
intendment.134 States are and must be the protectors of the migratory species that live or pass
through their jurisdiction135, which respondent violated. Furthermore, the respondent must protect
the Cetaceans and its higher taxon being in Appendix I136 through habitat restoration137 and to
128 Section 1 (a), Appendix I & II, Ibid
129 Section 1 (b), Appendix I & II, Ibid
130Article IV (1), Ibid
131Article II (1), Ibid
132 Article IV (2), Ibid
133 Article 18, VCLT
134 Soering v. UK, European Court of Human Rights, Series A, No. 161, p. 34 (1989), 98 ILR, p.
270; Artico v. Italy, ECHR, Series A, No. 37 (1980) and Loizidou v. Turkey, ECHR, Series A,
No. 310, p. 23 (1995); 103 ILR, p. 621.
135 Preamble, CMS
136 Section 4, Appendix I & II, Ibid
137 Article 3 (4) (a), Ibid
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prevent, remove, compensate for or minimize as appropriate, the adverse effects of activities or
obstacles that seriously impede or prevent the migration of species138. There were several
treaties and multilateral conventions entered relative to the Conservation of Cetaceans and Their
Habitats in different global regions with a bolstered scheme to protect Appendix I and II-listed
species with distinction only on the relative capability of each state thus, evidencing state practice
and opinio juris as a legally binding customary international law.
IV. The respondent breached CBD: Narwhals is a part of the Mass Biological Diversity139
The respondent, in the exercise of its sovereign right to exploit their own resources, is
obliged to ensure that the activities within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national jurisdiction. 140 The respondent
must also adapt141 its existing national strategies for conservation of the mass biodiversity; identify
processes which are likely to have significant impact142 on the conservation143 of the cetaceans and
Narwhals vis à vis regulation and management144 of biological diversity conservation.
138 Article 3 (4) (b), Ibid
139 Paragraph 3, Record
140 Article 3, CBD
141 Article 6(a), Ibid
142 Article 6(c), Ibid
143 Article 8(c), Ibid
144 Article 8(f), Ibid
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The respondent also failed to make its environmental impact assessment145 conform with
the CBD guidelines146 because it did not allow public participation on the ocean fertilization study
relative to its adverse effects on biological diversity. Moreover, it is imperative to introduce
arrangements147, consultation148, and immediate notification upon imminent or grave danger149 to
affected states, conjunctive with initiation of remedial measures to prevent or minimize danger150.
Herein, the respondent' cessation with reservation banking on its political discretion151 of the ocean
fertilization hardly suffice the requirement because the collection and analysis of the initial phase
of the project again failed to satisfy the consultation requirement as discussed above; thus evading
the obligation imposed upon by CBD cloaked by inchoate compliance. Evidently, compliance in
good faith is more apparent than real.
The Addis Ababa principle152 states that users of biodiversity components should seek to
minimize waste and adverse environmental impact and optimize benefits from uses.
V. UNCLOS’ protection on biodiversity was breached by respondent
145 Paragraphs 12 - 15, Record
146 Article 14, CBD
147 Article 14 (b), Ibid
148 Article 14 (c), Ibid
149 Article 14 (d), Ibid
150 Article 14 (d), Ibid
151 Paragraph 19, Record
152 COP, Annex II, Decision VII/2
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A. Respondent is a state party to the UNCLOS153
The notice of revocation was deposited on March 28, 2016154 while the case was filed on
June 23,2016155 effecting a 2 month-25 day interval which failed to satisfy the 3 month156
minimum reglementary period in the treaty. The effect of the withdrawal is prospective157 which
does not affect rights, obligations or legal situations of parties in the treaty prior to its
termination158.
B. UNCLOS mandates the protection and preservation of marine environment159
Respondent is duty-bound to protect and preserve the marine environment relative to its
exploitation of natural resources160 as well as to undertake control pollution of the marine
153 Paragraph 9, Record
154 Paragraph 9, Ibid
155 Registrar's Notice, ICJ
156 Article 65(2), VCLT
157 Paragraph 28, Record
158 Article 71(2) (b), VCLT
159 Article 192, UNCLOS
160Article 193, Ibid
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environment from any source161, dumping162, so as not to cause transboundary harm163. The
UNCLOS mandates the respondent to abstain from releasing noxious substances164 and devices
used in exploration165 as protective measure over fragile ecosystems and the habitat of threatened
or endangered species and marine life166. The protection over migratory species167 and marine
mammals168 applies beyond the EEZ. The Narwhals, including the phytoplanktons being an
essential component of their habitats, are enclosed within the protection.
RELIEFS
The Applicant prays before this Honorable International Court the following:
A. That ICJ has jurisdiction over the case
B. That respondent violated International Law by conducting the initial phase of its
fertilization project
C. That any re-examination of this project would violate international law
161 Article 194 (1), Ibid
162 Article 210 (1 - 5), Ibid
163Articles 194 (2) & 195, Ibid
164Article 194 (3) (a), Ibid
165 Article 194 (3) (d), Ibid
166 Article 194 (5), Ibid
167 Article 64, Ibid
168 Article 65, Ibid