IN THE INTERNATIONAL COURT OF JUSTICE · IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, ... Scientific Groups of the London Convention and London ... Rinnuco in its diplomatic

2016 General List No. 170

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, NETHERLANDS

Case of Questions Relating to Ocean Fertilization and Marine

Biodiversity

The Federal States of Aeolia

APPLICANT

v.

The Republic of Rinnuco

RESPONDENT

MEMORIAL FOR THE RESPONDENT

THE 21st ANNUAL STETSON INTERNATIONAL MOOT COURT COMPETITION


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TABLE OF CONTENTS

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

STATEMENT OF JURSIDICTION...........................................................................................6

STATEMENT OF FACTS............................................................................................................7

QUESTIONS PRESENTED.......................................................................................................10

SUMMARY OF ARGUMENTS................................................................................................11

ARGUMENTS ADVANCED.....................................................................................................12

I. The International Court of Justice does not have jurisdiction for the settlement this

dispute……………………………………………………………………………………12

II.A. Rinnuco has not violated International law with respect to its ocean fertilization project

as……………………………………………………………………………………………...16

A. There exists a qualified right in international law to conduct such a project

B. Direct obligations under the impugned conventions have been fulfilled

C. There is no contravention of the aims of the impugned conventions

II.B. Rinnuco has not violated its duty with respect to not cause transboundary harm and to

act according to the precautionary principle………………………………………………..24

CONCLUSION............................................................................................................................28


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INDEX OF AUTHORITIES

Text Books, Journals, and Reports

1. Secretariat of the convention on biological diversity, scientific synthesis of the impacts of

ocean fertilization on marine biodiversity 5 (secretariat of the convention on biological

diversity, cbd technical series no. 45 2009) [hereinafter scientific synthesis].

2. J. Ashley Roach, Defining Scientific Research: Marine Data Collection, in Myron H.

Nordquist et al. eds., Law, Science and Ocean Management 541, 543 (2007), citing

comparison of UNCLOS arts. 243, 246(3) and Alfred H.A. Soons, Marine Scientific

Research and the Law of the Sea 124 (1982)

3. The Law of Sea, Churchill & Lowe

4. Towards a 2015 Paris Agreement: Obligations of Results, Obligations of Conduct – or

Both? Sebastian Oberthür Institute for European Studies, Vrije Universiteit Brussel

5. Jonathon I. Charney, International Agreements and the Development of Customary

International Law, 61 WASH. L. REV. 971, 971 (1986)

6. Wladyslaw Czaplinski, Sources of International Law in the Nicaragua Case, 38 INT'L &

COMP. L.Q. 151, 153 (1989).

7. IMO, Ocean Fertilization: Interim Report of the Legal and Intersessional Correspondence

Group on Ocean Fertilization to the Scientific Groups, submitted by the U.K. to the

Scientific Groups of the London Convention and London Protocol, Sess. 31/2, May 19-23,

2008, IMO Doc. LC/SG 31/2/1 (Apr. 1, 2008).


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Cases:

1. Case concerning the northern Cameroons, Judgment of 2 December 1963 page 32

2. Fisheries Jurisdiction Case (Spain Vs Canada) Meaning Of "Conservation And

Management" (Paras. 64-73)

3. Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)

4. Responsibilities and obligations of States with respect to activities in the Area, Advisory

Opinion, 1 February 2011, ITLOS Reports 2011, p. 10

5. Application of The Convention on the Prevention And Punishment of The Crime Of

Genocide (Bosnia And Herzegovina V. Serbia And Montene Gro) (Paras. 202–230)

6. case concerning pulp mills on the river uruguay (argentina v. uruguay) judgment of 20 april

2010

7. Trail Smelter Arbitral Decision (US v. Can.) (1941) 35 Am. J. Int'l L. 684

8. P. Birnie and A. Boyle, International Law and the Environment, 2nd edn, Oxford, Oxford

University Press, 2002, p. 120.

9. P. Martin-Bidou, “Le principe de precaution en droit international de l’environnement”,

RGDIP, 1999, p. 655.

10. Application of The Convention on the Prevention And Punishment of the Crime Of

Genocide (Bosnia and Herzegovina V. Serbia And Montenegro) (Paras. 202–230)

11. The MOX Plant Case (Ireland v. United Kingdom) Request for provisional measures

12. North Sea Continental Shelf (F.R.G. v. Den. & Neth.), 1969 I.C.J. 3, 37-39 (Feb. 20);

13. The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment,

ITLOS Reports 1999, p. 10, at paragraph 171 Armed Activities on the Territory of the


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Congo (Democratic Republic of Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168,

at paragraph 160

List of Abbreviation:

ICJ International Court of Justice

ITLOS International Tribunal on Law for Law on Sea

LC/LP London Convention/ London Protocol

UNCLOS United Nations Convention on Law of Sea

CBD Convention on Biodiversity

OIF/OFP Ocean Iron Fertilization/ Ocean Fertilization Project

ILC International Law Commission

EEZ Exclusive Economic Zone

MSR Marine Scientific Research

IMO International Maritime Organization

International Conventions:

1. Convention on Biological Diversity

2. London Protocol

3. The London Convention

4. United nations convention on Law of seas

5. Vienna Convention on the Law of Treaties


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STATEMENT OF JURSIDICTION

The Federal State of Aeolia and the Republic of Rinnuco (“Parties”) submit the following dispute to

the International Court of Justice (“ICJ”). In accordance with the meeting with the President of the

Court held on 1 June 2016, the Parties have agreed that the questions regarding the Court’s jurisdiction

raised in the Preliminary Objection are inextricably linked to the merits of the questions raised in the

Application and that the questions regarding the Court’s jurisdiction should therefore be heard and

determined within the framework of the merits. Pursuant to Article 79, paragraph 10, of the Rules of

Court, the Court will give effect to the Parties’ agreement, and the Court thus will consider the

questions as to its jurisdiction simultaneously with the questions on the merits raised in the Application.


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STATEMENT OF FACTS

The Federal states of Aeolia and the Republic of Rinnuco are neighboring coastal Sovereign States

located on a continent surrounded by Muktuk Ocean. Both are developed countries having fishing

industry, and Aeolia has a strong ecotourism sector. Marine biodiversity of Muktuk Ocean is like

that of Greenland and other countries near the artic. Narwhals are inhabitants of Muktuk Ocean

and are commonly seen in waters off coast of Aeolia and Rinnuco.

Aeolia and Rinnuco are Members of UN and parties to the Statute of ICJ. Aeolia has recognized

the compulsory jurisdiction of ICJ. Both the countries are parties to the Vienna Convention, further

are contracting parties to Convention on Biological Diversity(CBD), 1996 Protocol to the

Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972

(London Protocol), Conservation of migratory Species (CMS), United Nations Convention on Law

of Seas (UNCLOS), United Nations Framework Convention on Climate Change (UNFCCC), the

Kyoto Protocol to the UNFCCC (Kyoto Protocol).

On 21st November 2014, Rinnuco announced its plans to conduct Ocean fertilisation after

conducting an extensive environment impact assessment. The major purpose was to simulate the

growth of phytoplankton booms in the Muktuk Ocean, mitigate climate change, stimulate fish

production, generate carbon offsets used to meet emission reduction targets and to conduct

extensive scientific research. This was communicated to Aeolia on 2nd December 2014. In its reply

Aeolia expressed concerns over this project. This was due to the Unknown effects of Ocean

fertilization of this large scale, which would cause serious impact to the marine biodiversity in the

Muktuk Ocean, to the narwhals. It will also effect its economy and insisted Rinnuco to act based

on Precautionary principle. On 5th December 2014, Rinnuco in its diplomatic note stated that

Rinnuco will proceed with Ocean fertilization as it has conducted extensive impact assessment. It


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believes that this project will produce useful information about Ocean fertilization and its uses to

mitigate climate change.

On 15th December Rinnuco passed a domestic legislation approving and funding the ocean

fertilization, where the project will be conducted in phases over the course of several years. During

the Initial phase Rinnuco planned to add 15,000 kg of Ferrous Sulphate over the course of six

weeks to a 2,000 square Km within its exclusive economic zone.

On 6th January 2015 Aeolia sent a diplomatic note alleging violation certain provisions under the

London Protocol and the resolutions, which Rinnuco denied in their reply note.

After the initial phase of Ocean fertilization, Rinnuco suspended the Ocean fertilization project.

On 22nd April, 9 narwhals died of coast of Rinnuco. The Research Centre in Aeolia conducted

necropsies, but the result was inconclusive as to the death of the narwhals. In furtherance to the

death of the Narwhals, Aeolia sent a diplomatic note alleging violation of various provisions under

CBD, UNCLOS, UN General Assembly resolutions and a duty not to cause transboundary harm.

In is reply Rinncuo have denied any violations and held its ground for sequestering carbon and

mitigating climate change.

From January 2015 to March 2016, additional negotiations followed by mediation were conducted

between the two countries. This process failed to resolve the conflict on the ocean fertilization

project.

Aeolia requested Rinncuo to submit to the jurisdiction of the ICJ. On 28th March 2016 Rinncuo

submitted its notice of revocation pursuant to Article 287 of UNCLOS.


9

On April 2016 Aeolia filed a case before ICJ. Rinncuo has filed objections for the same and has

suspended ocean fertilization until the matter is heard by ICJ.


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QUESTIONS PRESENTED

I. WHETHER THE COURT HAS JURISDICTION FOR THE SETTLEMENT OF THIS

DISPUTE?

II. HAS RINNICCO VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS

OCEAN FERTILIZATION PROJECT?


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SUMMARY OF ARGUMENTS

1. It is submitted that ICJ does not have jurisdiction in this case. The subject matter in this

present case falls within the ambit of the London Protocol. Under the London Protocol the

Arbitral tribunal has jurisdiction to handle the case. Furthermore, even if the subject matter

falls within the ambit of UNCLOS, there can be alternative methods of settlements.

2. Rinicco has not violated international law with respect to its ocean fertilization project, it

has a substantive right to conduct scientific research activities under United Nations

convention on the Law of Sea and Convention on Biodiversity provided it complies with

the direct and incidental obligations under the said conventions. It is also apparent from

the entire facts that Rinicco has not acted in contravention to the provisions or the aims and

objectives of the conventions.

3. Rinicco has conducted ocean fertilization project in accordance with the precautionary

principle by conducting extensive environmental impact assessment. Further it has invited

Public participation for the same which included the Respondent. Rinncuo has also

complied with domestic and international law.


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ARGUMENTS ADVANCED

I. The International Court of Justice does not have jurisdiction for the settlement this

dispute

The Respondents submit that ICJ does not have jurisdiction in this present case. Applicants have

submitted that the Jurisdiction springs from UNCLOS, London Protocol and CBD. The respondent

contends that the subject matter of the dispute falls only under London protocol and not under any

other convention.

FALLS UNDER THE EXCEPTION PROVIDED IN ARTICLE 297 OF UNCLOS:

It is submitted by the respondent that marine scientific research and fishing in the exclusive

economic zone by the coastal state will not come under the purview of compulsory jurisdiction of

UNCLOS1. The coastal state shall not be obliged to accept to the compulsory jurisdiction under

UNCLOS, if the dispute pertains to the exercise of the coastal state of a right or discretion2. Article

246(1) of UNCLOS gives right to the coastal state the right to regulate, authorize and conduct

marine scientific research in the exclusive economic zone and on the continental shelf.

The respondent conducts ocean fertilization in its exclusive economic zone and thus will come

under the exception provided in UNLCLOS.

SUBJECT MATTER:

The dispute in the present case pertains to ocean fertilization, is covered under the London

protocol. A resolution was passed in this effect to make ocean fertilization a part of London

1United nations convention on Law of seas, Art 297(2)(a), Nov 14,1994

2 UNLCOS, Supra note 1 , art 297(2)(a)(i)


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Protocol. It is submitted by the respondents that these resolutions are not binding on the

respondents.

The applicants have submitted that the ICJ has jurisdiction because the matter direct arises under

UNCLOS and CBD3.

It is alleged by the applicant that UNCLOS expressly addresses ocean dumping4. Though

UNCLOS provides for the definition of activities amounting and not amounting to dumping, it

envisages the state parties to adopt national laws relating to dumping according to the International

standards5. These International standards are now covered under London protocol and convention.

State parties to LC, dumping of non-prohibited substances is only allowed subject to the

requirements of prior EIA, permitting and ongoing monitoring as set out in Annexure III of the

convention. Parties to the London Protocol, dumping of all waste is prohibited except as provided

for in the exception.

Furthermore the application of CBD, is in relation to the components of biological diversity and

in the case of activities and process, regardless of the occurrence of the effect if the activity is

carried within the national jurisdiction or control6.

Thus CBD will come into picture only when there has been any consequences due to carrying of

any activity. Carrying of Ocean fertilization by the respondents have not caused any harm to the

3 R.¶ 11

4 R.¶ 11

5 UNCLOS, supra note 1, art 260(6).

6 Convention on Biological Diversity, Art 4, Jun 5 , 1992


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bio diversity. In the study concluded by the applicant, there was no evidence to link the death of

the Narwhals to the activities conducted by the respondents7.

The real dispute to be covered under any convention, should reasonably relate to the obligation set

forth in the convention8. Real dispute in this present case is whether iron sulphate used for ocean

fertilization will come under the purview of the exceptions mentioned in the London Protocol.

Thus, the acute elements in this present case relate to ocean fertilization and the use of iron sulphate

for the same9. Since it is established that the dispute falls under London Protocol the arbitral

tribunal under the LP has jurisdiction to decide the matter.

NON – SUBJECT MATTER:

It is submitted by the respondents that even if the subject matter falls under the purview of

UNLCOS the ICJ will not have jurisdiction to handle the case based on the following submission.

UNCLOS provides for State parties to conclude agreements modifying or suspending the operation

of provision of UNCLOS provided that such agreement is neither incompatible with UNCLOS nor

is in conflict with its basic principles10. This provides for the state parties to UNCLOS to conclude

any agreement that would preclude the application of settlement of dispute under Section 2 of

UNCLOS. Thus, it is submitted that London protocol will act as the agreement modifying/

suspending the application of UNLCOS.

7 R. ¶ 8

8 Fisheries jurisdiction case ( Spain Vs Canada) , 1998 ICJ at para 30-31

9 Southern Bluefin Tuna Case, 2000 ICJ at para 49

10 UNCLOS, Supra 1, Art 311(3)


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Furthermore UNCLOS provides for the settlement of dispute between the parties regarding the

interpretation and application of this convention by any peaceful means and recourse to UNCLOS

is possible only when the peaceful settlement of dispute is not possible11. If the parties have

otherwise agreed through general, regional or bilateral or other agreements, if the parties agree

shall be submitted to the procedure that entails binding procedure12.

Thus it is submitted that parties can settle their dispute by peaceful means without submitting to

the compulsory jurisdiction of UNLCOS. Arbitral tribunal is constituted under London protocol,

if there is any existence of dispute, where parties to the dispute submit for the same.

It is submitted by the respondents that the arbitral tribunal under LP will act as the peaceful means

for the parties to settle their disputes. Furthermore this method has not been exhausted in this

present case and thus ICJ does not have jurisdiction.

11 UNCLOS, Supra note 1 , Art 281(1)

12 UNCLOS, Supra note 1, Art 282(1)


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II.A. Rinnuco has not violated International law with respect to its ocean fertilization project

Rinicco has not violated international law with respect to its ocean fertilization project, it has a

substantive right to conduct scientific research activities under United Nations convention on the

Law of Sea and Convention on Biodiversity provided it complies with the direct and incidental

obligations under the said conventions. It is also apparent from the entire facts that Rinicco has not

acted in contravention to the provisions or the aims and objectives of the conventions.

The Convention on Biological Diversity stated the need for legitimate scientific research into the

actual outcomes and effectiveness of OIF. 13

The CBD decisions IX/16, X/33, and XI/20; and the General Assembly Resolutions 66/288,

62/215, and 67/78 do not have any definitive legal effect which is a requirement for an instrument

to be binding in nature, thus it is only recommendatory in nature.14

A. There exists a qualified right in international law to conduct such a project

In international law two types of measures taken by a coastal State could, in practice, be regarded

as "conservation and management measures": those relating to the State's exclusive economic

zone; and those relating to areas outside that zone, insofar as these came within the framework of

an international agreement or were directed at stateless vessels. Measures not satisfying these

conditions are not conservation and management measures but unlawful acts pure and simple.

13 Secretariat of the convention on biological diversity, scientific synthesis of the impacts of ocean fertilization on

marine biodiversity 5 (secretariat of the convention on biological diversity, cbd technical series no. 45 2009)

[hereinafter scientific synthesis].

14 Case concerning the northern Cameroons, Judgment of 2 December 1963 page 32


17

According to international law, in order for a measure to be characterized as a "conservation and

management measure", it is sufficient that its purpose is to conserve and manage living resources

and also satisfies various technical requirements. It is in this sense that the terms "conservation

and management measures" have long been understood by States in the treaties which they

conclude. Typically, in their enactments and administrative acts, States describe such measures by

reference to factual and scientific criteria15. Thus, the Ocean Fertilization project undertaken by

Rinnuco is purely a scientific experiment and research for the benefit of mankind as a whole.

All States have a sovereign right, jurisdiction to regulate, authorize, and conduct marine scientific

research in its EEZ provided that it is conducted exclusively for peaceful purposes and for the

benefit of mankind as a whole. Research should be conducted with appropriate scientific methods,

means compatible with the UNCLOS and must comply with all relevant regulations adopted under

the UNCLOS. It includes protection and preservation of the marine environment and must respect

the rights and duties of other States and other provisions of the UNCLOS.16

Marine scientific research’ means any study of, or related experimental work in, the marine

environment that is designed to increase man’s knowledge and is conducted for peaceful

purposes17, including its resources.18 Furthermore oceanography, marine biology,

geological/geophysical scientific surveying, as well as other activities with a scientific purpose

15 Fisheries Jurisdiction Case (Spain Vs Canada) Meaning Of "Conservation And Management" (Paras. 64-73)

16 Article 57 read with Article 238 and 246 of UNCLOS

17 4 Commentary ¶ 238.7, quoting draft art. 1 of nine Socialist States, 1975, A/CONF.62/C.3/L.26, 4 Off. Rec. 213

(1975).

18 4 id. ¶ 238.7, p. 447 (emphasis in original).


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will fall under this ambit19. The convention differentiates between pure and applied research in

Convention designated areas, e.g., the EEZ.20

In order for Ocean fertilization to come within the ambit of marine scientific research there has to

be evidence that the projects’ design and implementation are reasonable in relation to achieving

its stated objectives21. The burden of proving the reasonableness of the project with the credible

evidence lies with the applicant22

London Protocol

The LP requires state parties to take appropriate preventative measures when there is reason to

believe that wastes or other matter introduced into the marine environment are likely to cause harm

even when there is no conclusive evidence to prove a causal relation between inputs and their

effects.23 Thus, appropriate preventive measures are to be taken even when there is no conclusive

evidence to prove a casual relation of the impact of an activity like ocean fertilization. It is

submitted that the said duty is satisfied.

Thus, the qualifications which a State has to satisfy when undertaking an activity like ocean

fertilizations, within their jurisdiction is to exercise with ‘Due diligence’ i.e., the obligation to

apply a precautionary approach; to apply best environmental practices; to take measures to ensure

that provision guarantees in the event of an emergency an order by the Authority for protection of

19 NWP 1–14M Annotated ¶ 2.4.2.1.

20 Churchill & Lowe 405.

21 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)

22 Judge Owada in Whaling in the Antarctic (Australia v. Japan: New Zealand intervening)

23 Article 3.1 LP


19

the marine environment; to ensure the availability of recourse for compensation in respect of

damage caused by pollution and to conduct environmental impact assessments.24

It is maintained that Rinnuco should not be held liable for damage (if any) since it has taken all

necessary and appropriate measures to secure effective compliance with the qualification and

duties. Appropriate measures here mean to adopt laws and regulations and to take administrative

measures which are, within the framework of its legal system, “reasonably appropriate” for

securing compliance for the activities under its jurisdiction. What are the measures to be taken by

the Respondent can be determined by the state within the framework of its legal system and

international law. This determination is, therefore, left to the discretion of the State undertaking

the activity.25

B. Direct obligations under the impugned conventions have been fulfilled

Convention on Biodiversity

There exists two types of obligation. Obligation of conduct and obligation of result. obligations of

result’ gives more certainty regarding the actual outcome, obligations of conduct provide an entry

point for changing underlying behavior in a desired direction Obligations of result allow a

24 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011,

ITLOS Reports 2011, p. 10, para 122

25 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 1 February 2011,

ITLOS Reports 2011, p. 10, paras 228-229


20

compliance assessment ex post, whereas obligation of conduct can be assessed on the way to a

target year/period.26

Clauses (a) to (e) of Article 8 of CBD deal with obligation of conduct, clauses (f), (i) and (l) deal

with obligation of conduct where the time is all most immediate.

This project was in furtherance to Art 8(f) for the recovery of threatened species, Art 8(i) for

balancing the viability and the health of existing biodiversity in the Muktuk Ocean and was

implemented as plan under the said obligation.

However, Art. 8(l) read with Art. 7 (c) and (d), this ocean fertilization project is one of such

categories of activities which is alleged to have adverse impact on the conservation and sustainable

use of biological diversity. All arrangements are made to fulfill the obligations under the said

provisions such as monitoring the effects of such activities through sampling and other techniques,

maintaining of data derived from such activity. This project is going to be carried in phases where

each phase is going to be monitored by the respondents. Its effects are going to be studied and the

respondent believes that its project will produce useful information and data about the potential

benefits and uses of ocean fertilization, including its potential uses to mitigate climate change.

Furthermore, the obligation left under Art. 8(l) is to regulate or manage the ocean fertilization

project when a significant adverse effect on biological diversity has been determined pursuant to

Article 7. No such negative impact on the biodiversity has been conclusively proved and the burden

to prove harm under Article 3 is on the Applicant state.

26Towards a 2015 Paris Agreement: Obligations of Results, Obligations of Conduct – or Both? Sebastian Oberthür

Institute for European Studies, Vrije Universiteit Brussel


21

It is submitted that Rinnuco has absolutely complied with Article 14 of the CBD. There is no

violation of Article 14(d) of CBD since the death of the Narwhals in the jurisdiction of Rinnuco is

not an outcome of the ocean fertilization project.

Article 22(2) which requires the State parties to implement the CBD in compliance with the

relevant provisions governing the rights and obligations under the law of the sea which shall be

explained under the arguments advanced under the London protocol.

London Convention

The London Convention (“LC”) shall not be considered for this dispute as the London Protocol

(“LP”) supersedes the LC as between the parties to both instruments.27

The test of responsibility28

To ascertain whether the international responsibility of the Respondent have been incurred, on

whatever basis, about the Ocean fertilization project must be determined on the following basis.

First, it needs to be determined whether the ocean fertilization project could be attributed to the

Respondent on the basis that the acts were committed by its organs or persons whose acts are

attributable to it under customary rules of State Responsibility. Second, the Court needs to

ascertain whether acts of the kind governed by the Protocol, were committed by persons or organs

whose conduct is attributable to the Respondent. Finally, it will be for the Court to rule on the issue

as to whether the Respondent complied with Protocol.

27 Article 23, London Protocol

28 Application of The Convention on the Prevention And Punishment of The Crime Of Genocide (Bosnia And

Herzegovina V. Serbia And Montene Gro) (Paras. 202–230)


22

It is alleged by the applicant that Rinnuco has not fulfilled its general obligations under the LP and

they are to apply a precautionary approach with respect to environmental protection from the

probable impact of dumping of wastes or other matter29 and to not transfer, directly or indirectly,

damage or likelihood of damage from one part of the environment to another or transform one type

of pollution into another.30

Responsibility and liability arising out the violation of the LP would be in accordance with the

principles of international law regarding State responsibility. Such State responsibility will be

applicable only to the extent of damage caused to the environment of other States or to any other

area of the environment by dumping or incineration at sea of wastes or other matter. 31

LP is neither applicable nor enforceable on vessels entitled to sovereign immunity under

international law if such vessels act in a manner consistent with the object and purpose of the LP

and their actions are informed to the International Maritime Organization (“IMO”) by the

concerned contracting party.32

While a precautionary approach may be relevant in interpretation and application of the provisions

of the Statute, it does operate as a reversal of burden of proof.33 Whether the LP places the burden

of proof equally on the parties is the real question and the answer is that the burden of proof has

not been displaced but has only been made stricter for the adverse party to a dispute.

29 Article 3.1

30 Article 3.3

31 Article 15

32 Article 10.4

33 Pulp Mills Case


23

C. There is no contravention of the aims of the impugned conventions

The contracting parties to a treaty are competent to adopt authoritative interpretations,34 however

it is maintained that the resolutions35 are too expansive in scope as an authoritative interpretation

and regardless of such fact, it is not binding on Rinnuco.

The said interpretation has resulted in a change of the essential basis of the consent of the parties

to be bound by the treaty and the effect of the change is radically to transform the extent of

obligations still to be performed under the treaty. The change alleged above is the transfer of

assessing and approving the activities regulated under the protocol from sovereign States upon

whom the substantive conventional obligations lie upon to an intergovernmental scientific group.

This assertion can be justified by the statement of the first legal working group, in April 2008 that

although the LC/LP are "the most appropriate legal instruments to regulate [OIF]," the treaties

would need textual amendments to bring OIF officially within their regulatory scope.36

The Assessment Framework's purpose and design is to limit OIF activities to legitimate scientific

research and to bar large-scale, commercial OIF. However, the massive amount of information

that the Assessment Framework requests may prove too stringent and burdensome for qualified

scientists of even the most legitimate OIF scientific research project.

34 See Vienna Convention on the Law of Treaties, Article 31(3)(a).

35 Resolution Lc-Lp.1(2008) On The Regulation Of Ocean Fertilization; Resolution Lc-Lp.2(2010) On The

Assessment Framework For Scientific Research Involving Ocean Fertilization

36 IMO, Ocean Fertilization: Interim Report of the Legal and Intersessional Correspondence Group on Ocean

Fertilization to the Scientific Groups, submitted by the U.K. to the Scientific Groups of the London Convention and

London Protocol, Sess. 31/2, May 19-23, 2008, IMO Doc. LC/SG 31/2/1 (Apr. 1, 2008).


24

II.B. Rinnuco has not violated its duty with respect to not cause transboundary harm and to

act per the precautionary principle

Rinicco has conducted ocean fertilization project in accordance with the precautionary principle

by conducting extensive environmental impact assessment. Further it has invited Public

participation for the same which included the Respondent. Rinncuo has also complied with

domestic and international law. Further no State has the right to use or permit the use of its territory

in such a manner as to cause injury by fumes in or to the territory of another or the properties or

persons therein, when the case is of serious consequence and the injury is established by clear and

convincing evidence.37

Precautionary principle

The precautionary principle is part of a new development of law. The aim is not strict international

regulation. The establishment of a process accompanied by a body of occasionally explicit, but

usually implicit, rules guiding the behavior of the various agents in the international arena.38

37 Trail Smelter Arbitral Decision (US v. Can.) (1941) 35 Am. J. Int'l L. 684

38 Birnie and Boyle, after having stressed the uncertainties in the application of the precautionary principle (and even

in its meaning), affirm that “the proposition that [the precautionary principle] is, or … is not, customary international

law is too simplistic. Use by national and international courts, by international organizations, and in treaties, shows

that the precautionary principle does have a legally important core on which there is international consensus – that in

performing their obligations of environmental protection and sustainable use of natural resources states cannot rely on

scientific uncertainty to justify inaction when there is enough evidence to establish the possibility of a risk of serious

harm, even if there is as yet no proof of harm. In this sense the precautionary

principle is a principle of international law on which decision makers and courts may rely in the same way that they

may be influenced by the principle of sustainable development.” P. Birnie and A. Boyle, International Law and the

Environment, 2nd edn, Oxford, Oxford University Press, 2002, p. 120.


25

The precautionary principle must be analyzed as a symbiosis of legal obligations of means and

obligations of result. As an obligation of result, the precautionary principle imposes the obligation

of preventing possible negative effects on the environment. In extreme circumstances, the principle

can lead to the establishment of a preventive prohibition of certain activities and the suggested

activity would be thus forbidden until its innocuity is proven.39

The ICJ shall not overrule a state's impact assessment unless another party proves that assessment

"clearly," "convincingly," or "conclusively" wrong.40

The burden or onus of proof, the standard of proof, and the methods of proof. It is well established

in general that the applicant must establish its case and that a party asserting a fact must establish

it.41

Thus, the precautionary principle has no application when there is a failure in supplying proof that

there will be either irreparable damage to the rights of the Respondent or serious harm to the marine

environment resulting from Ocean Fertilization Project.42

Transboundary Harm

The ICJ has identified three relatively uncontroversial circumstances in which international

conventions may be relevant to finding customary international law. These circumstances are when

a convention: (1) codifies existing customary international law; (2) causes customary international

39 P. Martin-Bidou, “Le principe de precaution en droit international de l’environnement”, RGDIP, 1999, p. 655.

40 Pulp Mills Case

41 Application O F The Con Vent Ion On T He Prevent Ion And Punishment O F The Crime Of Geno Cide (Bosn Ia

And Herzegovina V. Serbia And Montene Gro) (Paras. 202–230)

42 Para 75 Mox Plant Case


26

law to crystallize; and (3) initiates the progressive development of new customary international

law. In each of these circumstances, states negotiation and adoption of certain international

agreements are evidence of customary international law.43 ILC Draft Articles are considered to

reflect customary international law. Certain provisions of the ILC Draft Articles on State

Responsibility, even in its earlier versions, have been invoked as such by the ITLOS44 as well as

by the ICJ.45

Article 3 of the Draft Articles on the prevention of transboundary harm from hazardous activities

requires the state of origin to take all appropriate measures to prevent significant transboundary

harm or at any event to minimize the risk thereof.

In order for the Ocean fertilization project to fall within the scope of the Draft Articles the OF

project should not be prohibited by international Law, must be planned or carried out in the

territory or otherwise under the jurisdiction or control of the state of origin, must contain an

element of causing significant transboundary harm, the risk should take the form of high

probability of causing significant transboundary harm. The term significant’ is something more

than ‘detectable’ but need not be at the level of ‘serious’ or ‘substantial.

43 Jonathon I. Charney, International Agreements and the Development of Customary International Law, 61 WASH.

L. REV. 971, 971 (1986); see North Sea Continental Shelf (F.R.G. v. Den. & Neth.), 1969 I.C.J. 3, 37-39 (Feb. 20);

Wladyslaw Czaplinski, Sources of International Law in the Nicaragua Case, 38 INT'L & COMP. L.Q. 151, 153

(1989).

44 The M/V “SAIGA” (No. 2) Case (Saint Vincent and the Grenadines v. Guinea), Judgment, ITLOS Reports 1999, p.

10, at paragraph 171

45 Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), Judgment, I.C.J.

Reports 2005, p. 168, at paragraph 160


27

However, the mere fact that harm eventually results from an activity does not mean that the activity

involved a risk, and conversely, that an activity may involve a risk even though the State of origin

underestimated the risk or was unaware of the risk.The impact of the OF project must have a

physical link with the transboundary effects

On reprising the arguments with respect to burden of proof, it is maintained that the quintessential

element of invoking state responsibility being the physical link between the impact of the OF

project and the transboundary effects is not provable by the Applicant and hence no transboundary

harm is established.


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CONCLUSION

For the foregoing reasons, the Republic of Rinnuco respectfully requests that

this Court:

1. Declare that the Court does not have jurisdiction to determine the matter.

2. Declare that the Republic of Rinnuco has not violated international law with respect to its

ocean fertilization project.

Respectfully submitted,

Agents for the Republic of Rinnuco

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IN THE INTERNATIONAL COURT OF JUSTICE · IN THE INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE, ... Scientific Groups of the London Convention and London ... Rinnuco in its diplomatic