A T P N C F S A R M 25 A S I E M C 2020-2021

TEAM CODE: 2166

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

CASE CONCERNING THE

PROTECTION OF BATS AND INTERNATIONAL TRADE MEASURES

FEDERAL STATES OF ALDUCRA

APPLICANT

V.

REPUBLIC OF RUNBETI

RESPONDENT

MEMORIAL FOR THE APPLICANT

25TH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

2020-2021

-WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT-

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TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………….................... 3

QUESTIONS PRESENTED………………………………………………………………...……. 6

STATEMENT OF JURISDICTION …………………………………………………………...…... 7

STATEMENT OF FACTS ………………………………………………………………….......... 8

SUMMARY OF ARGUMENTS ………………………………………………………………..... 10

THE ARGUMENT …………………………….…………………………………………......... 11

I. THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS

WIND FARM PROJECT …………………………………………………………...…… 11

A. Runbeti violated its obligation to conserve migratory species, particularly the

vulnerable royal noctule and Architerpan long-nosed bat under the CBD, CMS,

and EUROBATS………………………………………………………..…….. 11

1. Runbeti violated its obligations under CMS…………………………. 12

1.1. Article II and IV of CMS………………………………………… 12

1.2. CMS Resolution 7.5…………………………………………….. 13

1.3. CMS Resolution 11.27…………………………………………... 13

2. Runbeti violated his duty to implement mitigation measures to avoid or

reduce bat mortality under the EUROBATS Resolution 8.4………… 14

B. Limiting language in CBD provisions and the Rio Declaration as non-binding..15

C. Runbeti violated customary international law………………………………… 16

1. Runbeti violated the precautionary principle under CBD…………… 18


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2. Runbeti breached its duty to prevent transboundary harm ………....... 18

D. Runbeti’s failure to comply with its obligations is not justified under international

law…………………………………………………………………………….. 20

1. The sovereign right to use its natural sources to comply with its

commitments under the UNFCCC and Paris Agreement is limited and

does not apply to situations that cause damage to the environment of

other States…………………………………………………………... 20

2. Runbeti has invoked its climate change mitigation obligations under the

UNFCCC and PA as justification for its wind farm project ………… 20

3. The wind turbines caused harm ……………………………………… 21

II. THE FEDERAL STATES OF ALDUCRA VIOLATE INTERNATIONAL LAW WITH RESPECT TO

ITS TRADE MEASURES FOR TAPAGIUM PRODUCTS ……………………………….….. 23

A. Alducra`s measures are permissible under conventional law………….…….. 23

1. The response is permissible under the ARTA within the exceptions of

Article X (1) (b), and Article IV (1) and (2) concerning the National

Implementation of EUROBATS agreement text……………….….… 23

2. The response is permissible and mandated under the CBD………….. 23

B. Measures were taken to remedy and prevent transboundary harm.………….. 24

1. Alducra has acted in the promotion of the precautionary principle…. 24

2. Measures comply with the Test of Due Diligence……………………. 25

3. Measures are precluded from being considered an internationally

wrongful act………………………………………………………….. 25

CONCLUSION AND PRAYER………………………………………………………………….. 27


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INDEX OF AUTHORITIES

JUDICIAL DECISIONS

Case Concerning Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 1, 61

(Apr. 20).

Case Concerning the Gabcıkovo-Nagymaros Project, Judgement, 1997 I.C.J. Rep. 7 (Sept. 25).

Certain Activities Carried Out by Nicaragua In the Border Area (Costa Rica v. Nic.), Judgment,

2013 I.C.J. 150 (Apr. 17).

Corfu Channel (U.K. v. Alb.), Merits, 1949 I.C.J. 4, 22 (Apr. 9).

North Sea Continental Shelf (Ger. v. Neth.; Ger. v. Den.), Judgment, 1969 I.C.J. 3, ¶77 (Feb.

20)

Nuclear Tests (Aus.v. Fr), Judgment, 1973 I.C.J. 58. (May. 9).

Trail Smelter Arbitration (U.S. v. Can.) 1938/1941, 3 R.I.A.A. 1905

United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 35

(May 24).

Whaling in the Antarctic (Aus. v. Jap. New Zealand), Judgment, 2014 I.C.J. 148 (Mar. 31).

INTERNATIONAL LEGAL INSTRUMENTS

Agreement on the Conservation of Populations of European Bats (EUROBATS).

Articles on Responsibility of States for Internationally Wrongful Acts and Commentary,

art.30, G.A. Res. 56/83, 2002 (Jan. 28, 2002).


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Convention on Biological Diversity (CBD)., June 5, 1992, 1760 U.N.T.S. 79.

Convention on the Conservation of Migratory Species of Wild Animals (CMS)., June 23,

1979, 1651 U.N.T.S. 333.

Paris Agreement to the United Nations Framework Convention on Climate Change, (Dec. 13,

2015).

United Nations Framework Convention on Climate Change (UNFCCC).

Rio Declaration on Environment and Development, June 14, 1992.

Vienna Convention on the Law of Treaties (VCLT)., May 23, 1969, 1155 U.N.T.S. 331

OTHER LEGAL AUTHORITIES

CMS Resolution 7.5 Wind Turbines and Migratory Species (Dec. 07, 2017).

CMS Resolution 11.27 Renewable Energy and Migratory Species (April 07, 2020)

EUROBATS Resolution 8.4 Wind Turbines and Bat Populations (Oct. 10, 2018).

Declaration of the Right to Development, G.A. Res. 41/128 (Dec. 4, 1986).

Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec. 14, 1962).

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to

Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011.

Report of the International Law Commission on the Work of Its Fifty-Third Session, (2001) 2

Y.B. Int’l L. Comm’n 34, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2).


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BOOKS

JAMES CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW

8 (2008).

GODEFRIDUS J.H. HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW

75 (1983).

PHILIPPE SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 881

(4th ed., 2018).

TIMOTHY STEPHENS, INTERNATIONAL COURTS AND ENVIRONMENTAL

PROTECTION 158 (2009).

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 164 (2003).


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QUESTIONS PRESENTED

I. WHETHER THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH RESPECT TO

ITS WIND FARM PROJECT.

II. WHETHER THE FEDERAL STATES OF ALDUCRA VIOLATED INTERNATIONAL LAW WITH

RESPECT TO ITS MEASURES FOR TAPAGIUM PRODUCTS.


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STATEMENT OF JURISDICTION

In conformity with Article 40, paragraph 1 of the Statute of the International Court of Justice

(“the Court”), the Federal States of Alducra (“Alducra”) and the Republic of Runbeti

(“Runbeti”), have submitted by Special Agreement their differences concerning questions

contained in Annex A, relating to the Protection of Bats and International Trade Measures and

transmitted a copy thereof to the Registrar of Court on 24th July 2020.

The Registrar of the Court addressed a notification to the parties on 22nd April 2020. Therefore,

Runbeti and Alducra have accepted the jurisdiction of the Court.


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STATEMENT OF FACTS

Alducra and Runbeti are neighbors at Architerpo, they develop agave and tapagium, the royal

noctule, and the long-nosed bat provide them the benefits of pollution, seed dispersal, and insect

control in agave farms. Alducra in January 2015 established that all agave farmers in Alducra

use bat-safe farming practices and needed to allow 5% of the agave crops to flower. They are

parties to the Paris Agreement and of various conferences.

Runbeti´s Government received, for a subsidy program, a proposal for a multi-phase wind farm.

The wind farm consists of the construction of four phases, the first phase was constructed on

roosting areas, migration route, and commuting routes for the royal noctule bat and the long-

nosed bat.

The Chiroptera Crusaders, regional bat conservation, urged Runbeti´s Government to

implement mitigation measures for the operation of the wind turbines to help protect the royal

noctule and other species, but the Government of Runbeti declined. The Chiroptera Crusaders

found 237 dead royal noctules near the wind turbine during 2017 and 356 in 2018, they reported

to the Government of Runbeti and Alducra.

Alducra informed Runbeti of the violation and continuous violation of international law.

Runbeti´s actions violated provisions of EUROBAT. The wind farms were causing

transboundary harm to Alducra. Alducra requested the shutdown of the wind farm until they

implement appropriate mitigation measures.

In response, Runbeti forwarded a diplomatic note, which established that they have the right to

use their natural resources and that the bat mortalities were unfortunate but didn´t violate


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conventional or customary international law. Runbeti´s Government refused to legislate bat-

safe agave farming practices in their territory.

Alducra established requirements of import and sale of tapagium, that imposed a 20% tax on

all sales of tapagium from farms that did not implement bat-safe farming requirements applied

to all tapagium sold in Alducra. The requirements also established that all imported or sold

tapagium would be labeled with a specific label indicating if tapagium was “bat safe” or “not

bat safe”. Runbeti objected to the protectionist’s international trade restrictions of Alducra´s

legislation. Alducra responded that they are protecting the environment, bats, and farmers with

their trade measures.


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SUMMARY OF ARGUMENTS


WIND FARM PROJECT.

The wind turbines had a significant negative effect on the royale noctule and Architerpan long-

nosed bats (“bats”), an ecologically significant migratory species that is protected

internationally and nationally in Alducra. The wind farm is on land that is part of a migration

route and includes feeding and roosting areas and commuting routes for the bats. Runbeti’s

actions contravene several provisions of the CBD and CMS Resolutions 7.5 and 11.27.

Furthermore, Runbeti has violated provisions of EUROBATS AND EUROBATS Resolution

8.4. Additionally, the project is causing transboundary harm to Alducra and defies the

precautionary principle. The project also infringes on various principles under the Rio

Declaration.

II. THE FEDERAL STATES OF ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW WITH

RESPECT TO ITS TRADE MEASURES FOR TAPAGIUM PRODUCTS.

Alducra’s measures are justified under the Architerpo Regional Trade Agreement (ARTA)

within the exceptions of Article X (1) (b), and Article IV (1) and (2) concerning National

Implementation of EUROBATS agreement text.1

Besides, the measures were taken to remedy the transboundary harm caused by Runbeti, in

advocacy of the precautionary and due diligence approaches. For the sake of argument, they

are precluded from being considered internationally wrongful acts as they were done in the

promotion of the defense of necessity.

1 EUROBATS Resolution 8.4 Wind Turbines and Bat Populations (Oct. 10, 2018).


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ARGUMENTS POINT HEADINGS


WIND FARM PROJECT.

Runbeti’s project it’s against international law as it violated under the CMS,2 the obligation

to implement proper impact assessments of wind turbines on migratory species, to assess

the cumulative environmental impacts of installed wind turbines on these species, and to

take full account of the precautionary principle in the development of the wind turbine plant.

A. Runbeti violated its obligation to conserve migratory species, particularly the

vulnerable royal noctule and Architerpan long-nosed bat under the CBD, CMS, and

EUROBATS.

Runbeti is responsible for the deaths of the bat species because by subsidizing, supporting,

and declining to regulate the wind farm project, the State miscarry to perform its affirmative

obligation to take settled conservation measures specified by treaty and customary law. In

addition, a State may be responsible for an internationally wrongful act not only by acting

directly to contrary international law or through the attributed actions of private entities

under the jurisdiction of the State but also by failing to act in conformity with its

obligations.3

2 Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 1651 U.N.T.S. 333

[hereinafter CMS].

3 Report of the International Law Commission on the Work of Its Fifty-Third Session, (2001) 2 Y.B. Int’l L.

Comm’n 34, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2)


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1. Runbeti violated its obligations under CMS.

1.1. Articles II and IV of CMS.

According to Article I (1) (h) of the CMS, about a particular migratory species “Range State”

means any State that exercises jurisdiction over any part of the range of that migratory

species.4 Article IV (3) determines that parties that are Range States of migratory species listed

in Appendix II shall endeavor to conclude agreements where these would benefit the species

and should give priority to those in unfavorable conservation status. 5

Therefore the parties of those agreements should follow the fundamental principles contained

in Article II by which they acknowledge the importance of migratory species being conserved

and of the Range States agreeing to take action to this end whenever possible and appropriate,

paying special attention to migratory species, the conservation status of which is unfavorable,

and taking individually or in co-operation appropriate and necessary steps to conserve such

species and their habitat. 6

Rather than addressing to conserve the species and its habitat, Runbeti as a Range State for the

bats, neglects its duty by attempting to invade the migration route of a vulnerable species,

despite the fact that bats are a shared resource between both States.

4 CMS, supra note 1, art. I (1) (h).

5 Id. art. IV (3).

6 Id. art. II.


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1.2. CMS Resolution 7.5

Resolution 7.5 requests the Parties to take action to avoid that migratory species get

endangered.7 Migratory species are the most vulnerable and most likely to be affected by the

wind farms settled. The 7.5 CMS resolution establishes the following: “Recalling that Article

II of the Convention acknowledges the need to take action to avoid any migratory species

becoming endangered.”8

According to the CMS 7.5 resolution, Article II of the Convention acknowledges the

importance of the species conserved, the States force themselves to pay special attention to the

unfavorable species and promote support to the migratory species.9 The CMS 11.27 resolution

forces the States to apply properly a Strategic Assessment.10

1.3. CMS Resolution 11.27

Resolution 11.27 urges Parties to apply appropriate Strategic Environment Assessment (SEA)

and EIA procedures, including an appropriate ecological assessment if protected and sensitive

areas in particular for migratory species are likely to be affected when planning the use of

renewable energy technologies and avoiding existing protected areas in the broadest sense and

other sites of importance to migratory species. 11

7 CMS Resolution 7.5 Wind Turbines and Migratory Species (Dec. 07, 2017).

8 CMS supra note 7, art. II.

9 Id.

10 CMS Resolution 11.27 Renewable Energy and Migratory Species (April 07, 2020).

11 Id. art. 2 (a).


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Also urges Parties to implement the following priorities in their development of renewable

energy technologies regarding wind energy to make strategic planning and monitoring for the

management of renewable energy projects mitigating the impact of bats which collide with the

wind turbines and barotrauma. 12

Renewable energy projects must be undertaken in such a way that negative impacts on

migratory species are avoided. CMS Resolution 12.21 further elaborates on Parties’ duty to

have an action plan to avoid damage to migratory species in the process of climate change

mitigation.13 Runbeti did not perform any assessment after the construction, being merely

satisfied with the EIA conducted previous to the construction.

2. Runbeti violated its duty to implement mitigation measures to avoid or reduce bat

mortality under the EUROBATS Resolution 8.4.

Resolution 8.4. of EUROBATS recognizes the main importance of developing the mitigation

measures, the statistical ways to evaluate mortality rates, and the impact it has on bat

populations.14 The mitigation measures can be the blade feathering, the higher turbine cut-in

wind speed,15 and the shutdown of the turbines are proven to be the only mitigations that

effectively reduce the bat mortality.16

12 Id. art. 3 (a).

13 CMS Resolution 12. 21 Climate Change and Migratory Species (Dec. 15, 2017).

14 EUROBATS supra note 1, at 15.

15 Id.

16 Id.


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The Parties need to ensure the post-construction monitoring and mitigation measures to

continue with the guaranteed effectiveness to ensure that the proper mitigation measures are

being implemented during the approval procedure.17 Therefore, according to this resolution,

Alducra has the right to claim to Runbeti. The wind farms affect not only the Royal noctule

and the Long-nosed bat, but it also affects different species of bats.

A. Limiting language in CBD provisions and the Rio Declaration as non-binding.

Runbeti attempts to argue these resolutions are not binding but cannot avoid their obligations

with the argument that they are not compulsory. Moreover, the language of a convention must

be read in the context of its object and purpose. 18 The objectives of this Convention are the

conservation of biological diversity and the sustainable use of its components.19

The principle of pacta sunt servanda dictates that every convention be executed in good faith.20

This duty applies to any pact or agreement between parties.21 Both countries are Parties to the

agreement and both articles use obligatory language, including “shall,” thereby binding parties

to the obligations under the CBD.22

Alducra and Runbeti consented to the established conventions and agreements in the first year

they opened for signature and participated in all of the conferences and meetings of the parties

17 Id.

18 Vienna Convention on the Law of Treaties art. 31(1), May 23, 1969, 1155 U.N.T.S. 340. [hereinafter VCLT]

19 Convention on Biological Diversity art.1, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD].

20 VCLT, art. 26, (1), supra note 18, at 339.

21 GODEFRIDUS J.H. HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW, 75 (1983).

22 CBD art. 6, supra note 19.


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since then. Runbeti never objected to any of the resolutions of the parties therefore cannot now

dispute the resolutions of the Conference of the Parties.

According to the case of Whaling in the Antarctic (Australia v. Japan), the Court determined

that if a State is under a regulation which program is ongoing in their territory, they have to

revoke any implementation made by the State, in pursuance of that program. The Court

established to Japan the following: “Since JARPA II was an ongoing program, it ordered Japan

to revoke any extant authorization, permit or license to kill, or take or treat whales in relation

to it [...], in pursuance of that program.”23 Consequently, the programs and conventions of the

CBD and Rio Declaration24 are definitely binding to the State, it is a program in a course that

has the main purpose to protect biodiversity.

B. Runbeti violated customary international law.

Particular international law cases demonstrate that under customary international law, a State

is responsible for an internationally wrongful act if it fails to act as stipulated within its

obligations.

Runbeti does not want to take measurements to mitigate the deaths of the different species of

bats. Therefore, Runbeti is causing specific damage to Alducra because they have not

established the measurements needed to protect the environmental damages they have created,

affecting the productions and farms of agave in Alducra. The bats can no longer migrate to the

farms at Alducra to pollinate the agave farms, and the farms can´t any longer achieve their

production normal rates. Consequently, Runbeti has incurred international responsibility, and

23 Whaling in the Antarctic (Aus. v. Jap. New Zealand), Judgment, 2014 I.C.J. 148 (Mar. 31).

24 Rio Declaration on Environment and Development, June 14, 1992. [hereinafter Rio Declaration].


17

is liable to cease its activities and adequately compensate Alducra based on the case of Costa

Rica v. Nicaragua. The Court determined that “[....]the damage to the environment, in

particular the consequent impairment or the loss of the ability to provide goods and services,

and the cost of the restoration of the damaged environment, was compensated under the

international law.25” Consequently, Runbeti has the responsibility for the damages the wind

farm has caused to the environment and its compensation needs to be under international laws

according to the precedent of Costa Rica v. Nicaragua.

In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court determined

that both parties have the legal obligation to cooperate and create solutions to their problems.

The court determined the following: “[t]he Parties have a legal obligation… to continue their

co-operation through CARU and to enable it to devise the necessary means to promote the

equitable utilization of the river while protecting its environment.”26

Consequently, they could have proper use of their equity parts of the territory, but they need to

protect each other's environment. By this determination of the Court, Runbeti has the legal

obligation to execute the need to create solutions for the dispute between both countries.

Runbeti has the obligation to submit to the measurements Alducra imposed so they could stop

the wind farm from the damages they are causing to agave farms, farmers, and multiple species

of bats.

The Court determined in the case of United States Diplomatic and Consular Staff in Tehran

(United States v. Iran) that a State had violated the obligations he had with another State

25 Certain Activities Carried Out by Nicaragua In the Border Area (Costa Rica v. Nic.), Judgment, 2013 I.C.J. 150

(Apr. 17).

26 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 1, 61 (Apr. 20).


18

because of the conventions they have signed up for, between the parties, the State that violated

the obligations had responsibility so he had to pay the damages to the other State. The Court

determined the following: “had violated and was still violating obligations owed by it to the

United States under conventions in force between the two countries and rules of general

international law, that the violation of these obligations engaged its responsibility.”27

1. Runbeti violated the precautionary principle under CBD.

In the preamble to the CBD, the Precautionary Principle (PP) is adopted with the statement 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.” 28

Runbeti has the duty to protect the other states against the harmful acts their jurisdiction causes

at all times and has the responsibility to respond under international law. According to the

precedent of The Trail Smelter Arbitration United States v. Canada “The duty to protect other

states against harmful acts by individuals from within its jurisdiction at all times is the

responsibility of a state.”29

2. Runbeti breached its duty to prevent transboundary harm.

The duty of preventing transboundary harm is a rule provided in CBD as it establishes in its

Article 3 the responsibility of States to ensure that activities within their jurisdiction or control

27 United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 35 (May 24).

28 CBD Preamble ¶ 9 supra note 19.

29 Trail Smelter Arbitration (U.S. v. Can.) 1938/1941, 3 R.I.A.A. 1905.


19

do not cause damage to the environment of other States when exercising their sovereign right

to use their natural resources pursuant to their own environmental policies.30

Runbeti is causing transboundary harm to Alducra, Runbeti has the duty to protect other states

against harmful acts by individuals from within its jurisdiction at all times. Runbeti´s actions

directly affect the vulnerable species of Architerpo, which are responsible for the pollination

of the agave farms produced in both States, consequently, negatively influence their ecosystem.

Runbeti does not want to take measurements to mitigate the deaths of the different species of

bats. Therefore, Runbeti is violating Alducra's sovereignty because they have not established

the measurements needed to protect the environmental damages they have created, affecting

the productions and farms of agave in Alducra. The bats can no longer migrate to the farms at

Alducra to pollinate the agave farms. Consequently, they incurred international responsibility.

The precedent of the Corfu Channel establishes the following: “The exclusive control exercised

by a State within its frontiers might make it impossible to furnish direct proof of facts incurring

its international responsibility.” 31

Accordingly, the precedent establishes that there is a duty to prevent transboundary harm. A

state has the right and obligation of not allowing in their territory the use of acts that are

contrary to the rights that another State has. Runbeti´s acts are contrary to the rights of

Alducra´s Government, they do not want their territory to be used contrary to their ideals.

30 CBD art. 3, supra note 19.

31 Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 23.


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C. Runbeti’s failure to comply with its obligations is not justified under international law.

1. The sovereign right to use its natural sources to comply with its commitments

under the UNFCCC and Paris Agreement is limited and does not apply to

situations that cause damage to the environment of other States.

Within the “sovereign principle” States are free to decide how to manage their natural resources

and their environment; whether and to what extent they will protect the environment.32

However, the sovereign right to exploit the natural resources is limited and conditioned by

customary law, treaty law, and other principles of international environmental law. 33 The

sovereign principle of the CBD convention establishes the responsibility that the activities in a

State's jurisdiction will not cause damage to the environment of any other State or areas beyond

limits of national jurisdiction.

2. Runbeti has invoked its climate change mitigation obligations under the

UNFCCC and Paris Agreement as justification for its wind farm project.

Runbeti claims the precautionary principle weighs in favor of continuing the renewable energy

project to help mitigate climate change. However, the Paris Agreement prohibits harming the

environment in the process of developing renewable energy because increased environmental

harm cuts against the purpose of the agreement.34

32 United Nations Framework Convention on Climate Change (UNFCCC).

33 Declaration on Permanent Sovereignty over Natural Resources Pe1803 (XVII) (Dec. 14, 1962); See also

Declaration of the Right to Development, G.A. Res. 41/128 (Dec. 4,1986).

34 See Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 13, 2015, in Rep.

of the Conference of the Parties on the Twenty-First Session, U.N. Doc. FCCC/CP/2015/10/Add.1, (2016).


21

Additionally, Article 2 states the “Agreement, in enhancing the implementation of the

UNFCCC”, including its objective, aims to strengthen the global response to the threat of

climate change, in the context of sustainable development.”35 While Runbeti is encouraged to

take measures to mitigate climate change, the Paris Agreement does not justify the wind farm

project as it causes harm to the environment.36

3. The wind turbines caused harm.

Runbeti argues that there is no verifiable negative impact from the wind farm project on the

bats, but the harm does not need to be serious or substantial in order to be actionable. In

addition, according to Principle 15 of the Rio Declaration “Where there are threats of serious

or irreversible damage, lack of full scientific certainty shall not be used as a reason for

postponing cost-effective measures to prevent environmental degradation.”37 Destroying and

obstructing part of the bat’s migration route certainly will harm the species. It is sufficient that

the harm is susceptible to being measured by factual and objective standards.

The International Court of Justice determined that the parties need to establish and determine

provisional measurements while the dispute settles. The Court dictates the judgment both

parties do to stop causing any other dispute or controversy.

Consequently, the Government of Runbeti needs to shut down the wind farm, so there could

no longer be any other effect on the environment of Alducra or other countries. The Court

determined that the parties needed to indicate measurements, inter alia, meaning while the

35 UNFCCC supra note 32, art II.

36 Paris Agreement to the United Nations Framework Convention on Climate Change, (Dec. 13, 2015).

37 Rio Declaration, Principle 15 supra note 24.


22

Court dictates the judgment. The Court determined the following in the case Nuclear Tests

(Australia v. Francia): “the Court, at the request of Australia and New Zealand, indicated

provisional measures to the effect, inter alia, that pending judgment France should avoid

nuclear tests causing radioactive fall-out on Australian or New Zealand territory.”38

38 Nuclear Tests (Aus.v. Fr), Judgment, 1973 I.C.J. 58. (May. 9).


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II. THE FEDERAL STATES OF ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW WITH

RESPECT TO ITS TRADE MEASURES FOR TAPAGIUM PRODUCTS.

A. Alducra’s measures are permissible under conventional law.

1. The response is permissible under the ARTA within the exceptions of Article X

(1) (b), and Article IV (1) and (2) concerning the National Implementation of

EUROBATS agreement text.

Article X (b) of the ARTA mentions the general exception in which nothing in that Agreement

will be constructed to prevent the adoption or enforcement by any contracting party of

measures, to protect the humans, animals, or any plant life or health.39

Meanwhile, article IV of the EUROBATS establishes that it is a national implementation of

each party to adopt and enforce legislative and administrative measures necessary to the

protection and effectiveness of the Agreement.40 The provisions of this Agreement can not

affect the main right of the parties to implement stricter measures concerning the conservation

of the population of bats.41

Consequently, the measures Alducra imposed are intended to stop Runbeti from executing the

wind farm construction and also to take the necessary precautionary measures in order to

prevent any further damage to this species.

2. The response is permissible and mandated under the CBD.

The measurement of Alducra is based on a tax imposed of 20% in tapagium products that do

not guarantee bat-friendly practices on the agave farms that produce it, according to the law.

39 EUROBATS supra note 1, at 11.

40 Id.

41 Id.


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Article 10 of the CBD establishes that a State needs to take into consideration the use of

sustainable resources. It also states the following: “Each Contracting Party shall, as far as

possible and as appropriate:(a) Integrate consideration of the conservation and sustainable

use of biological resources into national decision-making.” 42

The CBD dictates in article 8 of the Convention that the Parties need to develop, as far and

appropriate, legislation or other regulatory provisions for the protection of the species and

populations. The Royal Noctule and the Long-Nosed Bat are endemic species of the region of

Architerpo, they are explicitly protected by the Treaties of the Republic of Runbeti. The Royal

Noctule and Long-nosed bat are part of the IUCN Red List, CITES Appendix II, CMS

Appendix II, and EUROBATS.

B. Measures were taken to remedy and prevent further transboundary harm.

1. Alducra has acted in the promotion of the precautionary principle.

The precautionary principle is an established customary international law principle43 requiring

countries to avoid transboundary pollution, prevent pollution at the source, minimize

environmental damage, and reduce the risk of harm.44

The precautionary principle is grounded in principle 15 of the Rio Declaration, which has the

approach to be applied by States according to each one's capabilities, where there are threats or

42 CBD art. 10 (a), supra note 19.

43 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the

Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, [2011] ITLOS Rep. 10.

44 DANIEL BODANSKY, ET. AL., THE OXFORD HANDBOOK OF INTERNATIONAL

ENVIRONMENTAL LAW 598 (2007).


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irreversible damages, the lack of certainty does not need to be a reason for the cost-effective

measures to the prevention of environmental degradation or irreversible damages. 45

2. Measures comply with the Test of Due Diligence.

Due diligence is an accepted standard for the duty to prevent transboundary harm, and States

are not automatically liable for damage caused. The test requires reasonable efforts to take

appropriate measures in time,46 with States having the discretion to take measures that are

necessary, appropriate, and feasible.47 States may become liable if they fail to take measures to

address transboundary harm caused, and are considered to have fulfilled their duty when due

diligence is exercised, whether or not harm has already occurred.48 Due diligence is not a

guarantee that harm will be prevented, but an obligation for a State to exert its best efforts to

minimize risk.49

3. Measures are precluded from being considered an internationally wrongful act.

To plead necessity as a ground for precluding the wrongfulness of an international obligation,

a State must show that the act was: (a) the only way to safeguard against a grave and imminent

peril; and (b) does not seriously impair an essential interest of the State or States towards which

45 Rio Declaration supra note 24.

46 TIMOTHY STEPHENS, INTERNATIONAL COURTS AND ENVIRONMENTAL PROTECTION 158

(2009);

47 XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 164 (2003).

48 Report of the International Law Commission, UN GAOR, 56th Sess., Supp. No. 10, UN Doc. A/56/10 ¶7

(2001). 49 North Sea Continental Shelf (Ger. v. Neth.; Ger. v. Den.), Judgment, 1969 I.C.J. 3, ¶77 (Feb. 20); JAMES

CRAWFORD, BROWNLIE’S PRINCIPLES OF PUBLIC INTERNATIONAL LAW 8 (2008).


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the obligation exists.50 A state of necessity, therefore, contemplates the “safeguarding an

essential interest” of a State.

The ICJ, for example, highlighted this exceptionality in the Gabčíkovo-Nagymaros case. It

stated that: “The Court considers, first of all, that the state of necessity is a ground recognized

by customary international law for precluding the wrongfulness of an act not in conformity

with an international obligation. It observes moreover that such ground for precluding

wrongfulness can only be accepted on an exceptional basis.”51 It also held that safeguarding

ecological balance has become to be considered an “essential interest” for all states.52

Alducra was forced to invoke the defense of necessity and take measures to prevent further

damage to its essential ecological interests. Considering the construction of the wind farm had

already killed several bats.

50 Articles on Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess., Supp. No. 10

at Ch. 4, U.N. Doc. A/56/10, Article 33 (2001). The International Law Commission first formally adopted

necessity as a defense in 1980 as part of its 32d Session Reports on State Responsibility.

51 Case Concerning the Gabcıkovo-Nagymaros Project, Judgement, 1997 I.C.J. Rep. 7 (Sept. 25)

52 Id.


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CONCLUSION AND PRAYER

The Applicant, the Federal States of Alducra, respectfully requests the Court to adjudge and

declare that:

1. The Republic of Runbeti violated international law with respect to its wind farm project.

2. The Federal States of Alducra did not violate international law with respect to its trade

measures of tapagium products.

(Respectfully Submitted)

Agents on behalf of the Applicant State.

Documents

A T P N C F S A R M 25 A S I E M C 2020-2021