Team 1744

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE

THE NETHERLANDS

CASE CONCERNING POLLUTION OF THE MUKTUK OCEAN THROUGH OCEAN

FERTILIZATION

Federal States of Aeolia

AND

Republic of Rinnuco

MEMORIAL OF THE APPLICANT

THE FEDERAL STATES OF AEOLIA

ii

TABLE OF CONTENTS

INDEX OF AUTHORITIES ............................................................................................................... iv

STATEMENT OF JURISDICTION .................................................................................................. xi

QUESTIONS PRESENTED .............................................................................................................. xii

STATEMENT OF FACTS ................................................................................................................ xiii

SUMMARY OF ARGUMENT .......................................................................................................... xv

PLEADINGS ......................................................................................................................................... 1

A. RINNUCO BREACHED ITS TREATY OBLIGATIONS ........................................................... 1

1. Rinnuco contravened UNCLOS .................................................................................................. 1

(a) Rinnuco unlawfully polluted the marine environment ....................................................... 1

(b) Rinnuco reneged on its obligations to prevent, reduce and control pollution ................... 2

(c) Rinnuco contravened its obligation to preserve the marine environment ......................... 3

(d) Rinnuco violated its obligation to preserve vulnerable marine life .................................... 4

2. Rinnuco violated the CBD ............................................................................................................ 5

(a) Rinnuco encroached on Article 8 of the CBD ....................................................................... 5

(b) Rinnuco breached Article 14 of the CBD .............................................................................. 7

3. Rinnuco infringed the CMS ......................................................................................................... 8

4. Rinnuco contravened the London Convention and the London Protocol ............................... 9

B. RINNUCO’S EXPERIMENT BREACHES INTERNATIONAL LAW ................................... 11

1. Rinnuco’s experiment caused transboundary harm ................................................................ 11

2. Rinnuco’s actions do not comply with the precautionary principle ....................................... 12

3. Rinnuco breached the principle of proportionality ................................................................. 14

C. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION IN THIS MATTER

.............................................................................................................................................................. 16

1. The Court has jurisdiction under UNCLOS ............................................................................ 16

(a) Rinnuco’s notice of revocation is invalid ............................................................................. 16

(b) Rinnuco has breached obligations under UNCLOS .......................................................... 17

(c) The Court has jurisdiction under UNCLOS in relation to breaches of other

international treaties ................................................................................................................... 18

iii

2. The Court has jurisdiction under the Convention on Biological Diversity (CBD) ............... 19

3. The Court has jurisdiction under London Protocol and London Convention ...................... 19

D. RINNUCO CANNOT RELY ON THE DEFENCE OF MITIGATION OF CLIMATE

CHANGE ............................................................................................................................................. 20

1. The climate change treaties do not provide justification for carrying out ocean fertilization

activities ........................................................................................................................................... 20

2. Principles of international law do justify carrying out ocean fertilization activities ............ 22

3. Rinnuco cannot rely on the defence of climate necessity ......................................................... 22

CONCLUSION AND PRAYER FOR RELIEF ............................................................................... 24

iv

INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention on Biological Diversity, 1760 UNTS 79; 31 ILM 818 (1992) 5,7

Convention on the Conservation of Migratory Species of Wild Animals, 1651

UNTS 333; 19 ILM 15 (1980); ATS 1991/32; BTS 87 (1990)

9

London Convention on the Prevention of Marine Pollution by Dumping of

Wastes Dec. 29, 1972, 1046 U.N.T.S. 13.

10

Protocol to the Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter, 7 November 1996, 2006 ATS 11.

11,12

Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331(1969). 19

United Nations Convention on the Law of the Sea 1982 21 ILM 1261 (1982). 2,3,4,11,20

United Nations Framework Convention on Climate Change 1771 UNTS 107;

S. Treaty Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM

849 (1992)

22

UN DOCUMENTS

Draft Articles on Responsibilities of States for International Wrongful Acts,

Y.B of the International Law Com., Volume 2 (part 2) (1996).

24

Resolution LC-LP.2 32/15 (2010). 10,11

v

Rio Declaration on Environment and Development, adopted by the UN

Conference on Environment and Development, Rio de Janeiro (Brazil), 3–14

June 1992, UN Doc.

10

JUDICIAL AND ARBITRAL DECISIONS

Application of the Convention on the Prevention and Punishment of the

Crime of Genocide (Croatia v. Serbia), Preliminary Objections, Judgment,

I.C.J. Reports (2008).

18

Case concerning fisheries jurisdiction (Spain v Canada) (Jurisdiction of the

Court), Summaries of judgements, advisory opinions and orders of the

International Court of Justice (1998).

17,18

Case Gabčikovo-Nagymaros Project (Hungary v. Slovakia) [1997] ICJ

Reports 1997.

13

European Court Reports 2010 II-00491 14

Joint Declaration Judges Hossain and Oxman International Tribunal on the

law of the Sea, Request for Provisional Measures (Malaysia v Singapore),

2003.

12

Legality of the threat or use of nuclear weapons, [Nuclear Weapons case]

1996 Advisory Opinion of the ICJ - Dissenting opinion of Judge

Weeramantry.

13,15

Pulp Mills on the River Uruguay (Argentina. v. Uruguay) 2010 I.C.J 14. 14

R v Secretary of State for the Environment, ex parte RSCB Case C -44/95. 16

vi

Southern Bluefish Tuna Cases (New Zealand v Japan; Australia v Japan)

Provisional Measures 1999.

14,19, 20

Trail Smelter arbitration (United States v Canada) RIAA 1941 1907. 12

BOOKS, DIGESTS AND RESTATEMENTS

BIRNIE, BOYLE AND REDGWELL, INTERNATIONAL LAW & THE

ENVIRONMENT, (3RD EDN. OXFORD UNIVERSITY PRESS 2009).

22

CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES

ON STATE RESPONSIBILITY: INTRODUCTION, TEXT AND

COMMENTARIES (CAMBRIDGE, CAMBRIDGE UNIVERSITY PRESS

2002).

24

HEIDE- JORGENSEN AND DIETZ, ENCYCLOPAEDIA OF MARINE

MAMMALS, (1995).

5,6,7

FRANK AND BERNANKE, PRINCIPLES OF ECONOMICS (2ND ED,

MCGRAW-HILL/IRWIN, NEW YORK, 2004).

11

SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW

(CAMBRIDGE UNIVERSITY PRESS 2003).

24

SCHEIBER, PAIK, REGIONS, INSTITUTIONS, AND THE LAW OF THE

SEA: STUDIES IN OCEAN GOVERNANCE (MARTINUS NIJHOFF

PUBLISHERS 2013).

23

vii

ESSAYS, ARTICLES, AND JOURNALS

Allsopp, Santillo and Johnston, A Scientific Critique of Oceanic Iron

Fertilization as a Climate Change Mitigation Strategy, Greenpeace Research

Labratories Technical Note 07/2007, (2007).

4

Evans-Pritchard Jayanti, A balancing act: reassessing ocean iron

fertilization’s status under international environmental law in conjunction

with algae biofuel production, International Energy Law Review (2012).

7,22,24

Franck, On Proportionality of Countermeasures in International Law, The

American Journal of International Law 102 (4) 715 (2008).

15

Freestone, Rayfuse, Ocean Iron Fertilization and International Law (2008)

364 Marine Ecology Progress Series 227.

8,22

Freestone, The Road to Rio: International Environmental Law after the Earth

Summit, 6, Journal of Environmental Law 193 at 221 (1994).

14

Ginzky, Herrmann, Kartschall, Leujak, Lipsius, Mäder, Schwermer, Straube,

Geoengineering: effective climate protection or megalomania? (2011),

available online at http://www.umweltbundesamt.de/uba-info-medien-

e/4125.html.

8

Koh, A Constitution for the Oceans, in United Nations, The Law of the Sea

(New York: United Nations, 1983).

2

Marcinak, Nawożenie Oceanów Żelazem (Ocean Iron Fertilization), Prawo

Morskie, t. XXVII (March 31, 2011), available online at:

https://ssrn.com/abstract=2400492.

23

viii

Marz, Arctic Sea Ice Ecosystem: A summary of species that depend on and

associate with sea ice and projected impacts from sea ice changes (2010),

available online at: http://www.caff.is/assessment-series/97-arctic-sea-ice-

ecosystem-a-summary-of-species-that-depend-on-and-associate-

with/download.

6

McIntyre and Mosedale, The Precautionary Principle as a norm of customary

international law, 9[2] Journal of Environmental Law 1997.

13

Oxman, The Duty to Respect Generally Accepted International Standards,

New York University Journal of International Law and Politics (1991)

19,20

Shadbolt, Cooper and Ewins, Breaking the Ice: International Trade in

Narwhals, in the Context of a Changing Arctic, Traffic and WWF, (2015) at

18, available online at:

http://assets.worldwildlife.org/publications/774/files/original/TRAFFIC_Narw

hal.pdf?1426192894.

7,8

Shepherd, Geo-engineering the Climate: Science, Governance and

Uncertainty, London Royal Society (2009).

2,8,25

Tremblay, Eco-terrorists facing Armageddon: The Defence of Necessity and

Legal Normativity in the Context of Environmental Crisis, (2012) 58 (2)

McGill Law Journal.

25

Verlaan, Geo-engineering, the Law of the Sea, and Climate Change, (2009)

CCLR 4 446

10,21

6

ix

Wittnich, Belanger, Akin, Bandali, Wallen, A wash in a Sea of Heavy Metals:

Mercury Pollution and Marine Animals (2004), available online at:

http://www.oers.ca/research/mercury-report.pdf.

MISCELLANEOUS

Bulletin of the Atomic Scientists, 20 Reasons Why Geo-engineering May Be A

Bad Idea, May/June 2008, available online at:

http://climate.envsci.rutgers.edu/pdf/20Reasons.pdf.

2

Information on the Haida Salmon Restoration project is available at

www.haidasalmonrestoration.com.

16

Intergovernmental panel on Climate Change, Contribution of Working Group

II to the Fourth Assessment Report of the Intergovernmental Panel on Climate

Change, (2007)793.

1

McLeish, The Narwhals Left Tooth, (2011), available Online at:

http://narwhalslefttooth.blogspot.ie/2011/05/pollutants-in-narwhal-tissues-

raises.html.

6

Owada, International Environmental Law and the International Court of

Justice, Inaugural Lecture at the Fellowship Programme on International and

Comparative Environmental Law, available online at:

http://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf.

19

Proposal for the Inclusion of Species on the Appendices of the Convention on

the Conservation of Migratory Species of Wild Animals, Available online at:

5

x

http://www.cms.int/sites/default/files/document/cms_cop3_II_07_monodon_

monoceros.pdf.

Schneider, Earth systems engineering and management, Nature, 409, (2001).

See also Allenby, Climate change negotiations and geoengineering: Is this

really the best we can do?, Environmental Quality Management 20, (2010): 1-

16 DOI: 10.1002/tqem.20276, available online at:

http://doi.wiley.com/10.1002/tqem.20276.

11

xi

STATEMENT OF JURISDICTION

The Federal States of Aeolia (Applicant) and the Republic of Rinnuco (Respondent) submit

their dispute to this Honorable Court, pursuant to Article 36, paragraph 2, and Article 40 of the

Statute of the International Court of Justice. On the 11 July 2016, the parties signed a special

agreement and submitted it to the Registrar of the Court. See Special Agreement Between the

Federal States of Aeolia and the Republic of Rinnuco for Submission to the International Court

of Justice on Differences Between Them Concerning Questions Relating to Ocean Fertilization

and Marine Biodiversity. (R. at 2–5). The Registrar for the Court addressed notification to the

parties on 23 June, 2016. (R. at 2).

xii

QUESTIONS PRESENTED

1. WHETHER RINNUCO VIOLATED INTERNATIONAL LAW BY CONDUCTING

ITS OCEAN FERTILIZATION EXPERIMENT IN THE MUKTUK OCEAN.

2. WHETHER ANY RE-INITIATION OF THE OCEAN FERTILIZATION PROJECT

WOULD BE IN BREACH OF INTERNATIONAL LAW.

3. WHETHER THIS HONORABLE COURT HAS JURISDICTION OVER THIS

DISPUTE IN ACCORDANCE WITH ARTICLE 27 OF THE CONVENTION ON

BIOLOGICAL DIVERSITY (CBD) AND ARTICLE 287 OF UNITED NATIONS

CONVENTION ON THE LAW OF THE SEA (UNCLOS).

xiii

STATEMENT OF FACTS

The Federal States of Aeolia (Aeolia) and the Republic of Rinnuco (Rinnuco) are neighbouring

coastal states located on Scheflutti, a continent surrounded by the Muktuk Ocean, located in

the Arctic Ocean. Narwhals (Monodon Monoceros) are commonly seen off the coasts of both

Aeolia and Rinnuco. The economy of Aeolia has a strong ecotourism sector that depends

primarily on whale-watching and various other expeditions that focus on narwhals. Aeolia has

invested in its interests by holding an annual festival celebrating narwhals. In an attempt to

enhance its understanding into this endangered species that are essential to the integrity of the

marine environment, Aeolia possesses the only research institute on Scheflutti that studies

narwhals. Additionally, Aeolia and Rinnuco have enacted legislation that prohibits the hunting

of narwhals in the Muktuk Ocean.

On 21 November 2014, Rinnuco announced its plans to engage in an ocean fertilization project

in Muktuk Ocean. Rinnuco failed to address Aeolia’s expressed concerns and on the 5

December 2014, confirmed that each phase of its project would become successively larger in

terms of the area covered and the amount of ferrous sulphate added.

On 5 January 2015, in the absence of consent from Aeolia, Rinnuco released a research vessel,

the Stanlee, to begin depositing ferrous sulphate 175 miles off the Rinnuco coast.

xiv

On 13 February 2015, Rinnuco temporarily suspended its ocean fertilization project having

completed the initial 6 week phase of the project. Rinnuco has not been able to provide any

final determinations on the results from the project.

On 22 April 2015, nine dead narwhals were found off the coast of Rinnuco. Researchers from

Aeolia’s Nautilus Research Institute conducted necropsies however they were unable to

conclusively establish the cause of death of the narwhals.

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

conducted between Aeolia and Rinnuco but the process failed to resolve the dispute.

On 4 April 2016, Aeolia submitted an Application instituting proceedings against Rinnuco. On

10 May 2016, Rinnuco submitted a Preliminary Objection contesting the jurisdiction of the

International Court of Justice (ICJ) over the matter. The ocean fertilization project has been

suspended until the ICJ can consider the matter.

xv

SUMMARY OF ARGUMENT

Rinnuco has unlawfully polluted the marine environment and threatened vulnerable marine life

that are integral to the biological diversity of the Muktuk Ocean. As such, Rinnuco contravened

international treaties and customary international law.

Aeolia and Rinnuco are both UN members and parties to the Statute of the International Court

of Justice and the Vienna Convention on the Law of Treaties. They are contracting parties to

the CBD, the Convention on the Prevention of Marine Pollution by Dumping of Wastes and

Other Matter, 1972 (the London Convention), the 1996 Protocol to the Convention on the

Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972 (the London

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

Both Aeolia and Rinnuco are parties to the UNCLOS.

The scale of Rinnuco’s ocean fertilization experiment is disproportionate. The Environmental

Impact Assessment conducted was insufficient and failed to properly consider the damages and

consequences to the environment. Rinnuco damaged the shared ecosystem of both Rinnuco

and Aeolia. Thus, Rinnuco failed to act in accordance with the precautionary principle and the

principle not to cause transboundary harm.

xvi

The ICJ has jurisdiction in relation to the interpretation and application of any dispute arising

under UNCLOS. Rinnuco provided a written declaration to submit itself to the jurisdiction of

the court in respect of the CBD.

Rinnuco violated the CBD and UNCLOS and cannot rely on the defence of mitigation of

climate change. Rinnuco cannot rely on the United Nations Framework Convention on Climate

Change (UNFCCC) or the Kyoto Protocol to the United Nations Framework Convention on

Climate Change (Kyoto Protocol) to renege on its obligation to protect and preserve the marine

environment. Rinnuco infringed upon international law by conducting the initial phase of its

ocean fertilization project and any re-initiation of this project would violate international law.

1

PLEADINGS

A. RINNUCO BREACHED ITS TREATY OBLIGATIONS

1. Rinnuco contravened UNCLOS

(a) Rinnuco unlawfully polluted the marine environment

The Muktuk Ocean is a shared resource between Aeolia and Rinnuco located near Greenland

in the Arctic Circle. Both states share a duty to protect and conserve the marine environment

and cetaceans, such as narwhals, that inhabit it. Rinnuco, without Aeolia’s agreement, has

undertaken ocean fertilization in the Muktuk Ocean. Ocean fertilization is a climate

engineering technique used to remove carbon dioxide from the atmosphere through the

artificial introduction of nutrients to the surface of the ocean. The current use of ocean

fertilization is opposed because of its negative effects on marine biodiversity.1 Nine weeks after

Rinnuco’s ocean fertilization experiment, nine dead narwhals were found off the coast of

Rinnuco. Rinnuco’s experiment has contributed to the deaths of these narwhals and its

experiment will have devastating effects on the delicate marine environment of the Muktuk

Ocean.

1 Intergovernmental panel on Climate Change, Contribution of Working Group II to the

Fourth Assessment Report of the Intergovernmental Panel on Climate Change, (2007)793 at

49.

2

UNCLOS2 is the primary global instrument on the law of the sea.3 Rinnuco and Aeolia are

bound to comply with its obligations.4 Article 1 of UNCLOS defines the pollution of the marine

environment as an “introduction by man, directly or indirectly, of substances or energy into the

marine environment, which results, or is likely to result in harm to living resources and marine

life.”5 It is not the nature of ferrous sulphate that is decisive here, but the potential deleterious

effect on the marine environment. By depositing powdered ferrous sulphate in the Muktuk

Ocean, Rinnuco has polluted the marine environment. Without conclusive evidence to support

the long-terms effects of ocean acidification, any additional acid deposition would harm the

ecosystem.6 The continued acidification of the ocean threatens the entire biological chain.7

Ferrous sulphate was introduced artificially which under the terms set out in Article 1, renders

it a “pollutant.”8 As such, it is subject to UNCLOS provisions.

(b) Rinnuco reneged on its obligations to prevent, reduce and control pollution

Rinnuco violated Article 210(2) of UNCLOS which provides that “states shall take other

measures as may be necessary to prevent, reduce and control such pollution.”9 Subsequent to

2 United Nations Convention on the Law of the Sea 1982 21 ILM 1261 (1982) [UNCLOS].

3 Koh, A Constitution for the Oceans, in United Nations, The Law of the Sea (New York:

United Nations, 1983), and xxxiii–xxxvii considers UNCLOS to be the Constitution of the

ocean.

4 Records, Annex A [9] 5.

5 UNCLOS, Art. 1.

6 Shepherd, Geo-engineering the Climate: Science, Governance and Uncertainty, London

The Royal Society (2009), at 61.

7 Bulletin of the Atomic Scientists, 20 Reasons Why Geo-engineering May Be A Bad Idea,

May/June 2008, available at: http://climate.envsci.rutgers.edu/pdf/20Reasons.pdf.

8 UNCLOS, Art 1.

9 UNCLOS, Art 210(2).

3

Rinnuco’s initial correspondence, Aeolia highlighted the negative consequences of engaging

with ocean fertilization. While Rinnuco prepared an environmental impact assessment prior to

the project, it did not address the negative effects that flow from polluting the marine

environment. In the absence of such measures, Rinnuco breached Article 210(2).

Rinnuco contravened Article 210(5) which prohibits states from dumping within its territorial

sea and exclusive economic zone without the express prior approval of the coastal State. This

further provides that coastal states such as Aeolia, have the right to permit, regulate and control

such dumping after due consideration of the matter.10 On 15 December 2014, Rinnuco passed

a law approving and fully funding the planned ocean fertilization project. Rinnuco failed to

obtain the consent of Aeolia when enacting this legislation. By engaging in the initial phase of

the experiment without the express agreement of Aeolia, Rinnuco breached international law.

(c) Rinnuco contravened its obligation to preserve the marine environment

Rinnuco violated Articles 192, 194 and 195 of UNCLOS. Articles 192 and 194 provide that

states shall take all measures necessary to prevent, reduce and control pollution in order to

protect and preserve the marine environment.11 Ocean fertilization activities can be directly

included as prohibited measures through Article 195, which provides “states shall act so as not

to transfer, directly or indirectly, damage or hazards from one area to another or transform one

type of pollution into another.”12

10 UNCLOS, Art 210(5).

11 UNCLOS, Art 192 and Art. 194(1).

12 UNCLOS, Art. 195.

4

The direct transfer of ferrous sulphate, the pollutant, by Rinnuco violated UNCLOS. The

release of iron into the ocean causes algae in one region to consume all other nutrients.13 This

results in the circulation of water that is deficient in the key nutrients necessary to maintain a

healthy marine environment.14 While Rinnuco restricted the project within 200 nautical miles

of its own coast, the chemical impact of ocean fertilization has resulted in damage to the

Muktuk Ocean. Any re-initiation of the project would threaten the future welfare of Aeolia’s

marine environment.

(d) Rinnuco violated its obligation to preserve vulnerable marine life

Article 64 provides that all states, whose nationals fish in the region for the highly migratory

species that are listed in Annex I, shall cooperate directly or through appropriate international

organizations to ensure conservation.15 This provides for the optimum utilization of such

species throughout the region, both within and beyond the Exclusive Economic Zone (EEZ).16

Annex 1 specifically lists narwhals as being worthy of special protection for these purposes.

The migratory nature of the narwhal is demonstrated through the depth of their dives, which

can descend up to 5,000 feet.17 Rinnuco failed to comply with the direction to consider the

welfare of migratory species, which resulted in the deaths of nine narwhals.

13Allsopp, Santillo and Johnston, A Scientific Critique of Oceanic Iron Fertilization as a

Climate Change Mitigation Strategy, Greenpeace Research Labratories Technical Note

07/2007, (2007) at 3.

14 Id.

15 UNCLOS, Art. 64(1).

16 UNCLOS, Part V, Art. 56.

17 HEIDE- JORGENSEN AND DIETZ, ENCYCLOPAEDIA OF MARINE MAMMALS,

(1995) at 757. See also Clarifications to the Record at 4, no. 24.

5

2. Rinnuco violated the CBD

(a) Rinnuco encroached on Article 8 of the CBD

Rinnuco violated Article 8, which provides that each contracting party shall, as far as possible,

manage biological resources important for the conservation of biological diversity whether

within or outside protected areas, with a view to ensuring their conservation and sustainable

use.18 Aeolia’s Nautilus Research Institute is the only research institute on Scheflutti that

studies narwhals.19 Rinnuco failed to cooperate with Aeolia in the management of biological

resources which are crucial to the conservation of biological diversity in their shared ocean

territory.20 In previous studies, the indirect threat of pesticide contamination has been found to

be a risk in the reduction of breeding success in the narwhal.21

This has been demonstrated through the finding of reports performed by the Conference of

Parties, which is the decision making organ of the CMS. The Third Meeting of the Conference

of the Parties to CMS, COP 3 11/7, took place in order to consider the proposed listings on the

CMS Appendices of narwhals as migratory species under threat.22 This report showed that

heavy metals have been detected in narwhal tissues collected from northern Baffin Island.23

Other studies have also raised concerns regarding elevated levels of man-made

18 Convention on Biological Diversity, 1760 UNTS 79; 31 ILM 818 (1992) [CBD].

19 Clarifications to the Records at 4, Q. 26.

20 Id. Article 8 (c).

21 Proposal for the Inclusion of Species on the Appendices of the Convention on the

Conservation of Migratory Species of Wild Animals [3.3] at 3, available online at:

http://www.cms.int/sites/default/files/document/cms_cop3_II_07_monodon_monoceros.pdf.

22 Id.

23 Id.

6

organochlorines24 and heavy metals such as cadmium, selenium and mercury, found in tissue

samples collected from 150 narwhals in Greenland.25 Pollutants such as heavy metals can linger

for many decades and even centuries causing serious problems for future generations of

animals.26 Narwhals are near the top of the food chain and have a vital role in the health of the

marine environment.27

The narwhal is an important part of the Inuit culture, both as a source of trade, and as a

symbol.28 Rinnuco’s failure to uphold their obligations under the CBD and minimize the

potentially harmful effects of ocean fertilization, has resulted in irreversible damage to the

ecosystems of the narwhal and their natural habitats.29

24 HEIDE- JORGENSEN AND DIETZ, supra note 17.

25 McLeish, The Narwhals Left Tooth, (2011), available online at:

http://narwhalslefttooth.blogspot.ie/2011/05/pollutants-in-narwhal-tissues-raises.html.

26 Wittnich, Belanger, Akin, Bandali, Wallen, A wash in a Sea of Heavy Metals: Mercury

Pollution and Marine Animals (2004), available online at:

http://www.oers.ca/research/mercury-report.pdf.

27 Marz, Arctic Sea Ice Ecosystem: A summary of species that depend on and associate with

sea ice and projected impacts from sea ice changes (2010) at 37, available online at:

http://www.caff.is/assessment-series/97-arctic-sea-ice-ecosystem-a-summary-of-species-that-

depend-on-and-associate-with/download.

28 Shadbolt, Cooper and Ewins, Breaking the Ice: International Trade in Narwhals, in the

Context of a Changing Arctic” Traffic and WWF, (2015) at 18, available online at:

http://assets.worldwildlife.org/publications/774/files/original/TRAFFIC_Narwhal.pdf?14261

92894.

29 HEIDE-JORGENSEN AND DIETZ, supra note 17.

7

(b) Rinnuco breached Article 14 of the CBD

Rinnuco infringed Article 14(1) as it has failed to introduce appropriate measures “requiring

environmental assessment of its proposed projects that are likely to have significant adverse

effects on biological diversity with a view to minimising such effects.”30 Rinnuco contravened

Article 14(2) which provides that states shall introduce “appropriate arrangements” to ensure

that the environmental consequences of programmes that are likely to have significant adverse

impacts on biological diversity are taken into account.31 Rinnuco has placed ferrous sulphate

in the ocean in order to stimulate the growth of phytoplankton and thus increasing

photosynthesis.32 This results in the reduction of the level of carbon dioxide present in the

atmosphere with the overarching aim of reducing the effects of climate change.33 Model studies

have shown that in actuality a greater proportion of carbon (up to 80%) is re-released into the

atmosphere subsequent to ocean fertilization processes.34 The negative consequences of

engaging with unknown geoengineering techniques attaches a potential set of problems, the

scope and severity of which cannot be foreseen.35 As such, they cannot be understated. While

Rinnuco has conducted their experiment for just six weeks, the sensitive nature of the marine

30 CBD, Art. 14(1).

31 CBD, Art. 14(2).

32 Evans-Pritchard Jayanti, A balancing act: reassessing ocean iron fertilisations status under

international environmental law in conjunction with algae biofuel production, IELR, (2012)

at 1.

33 Id.

34 Ginzky, Herrmann, Kartschall, Leujak, Lipsius, Mäder, Schwermer, Straube,

Geoengineering: effective climate protection or megalomania? (2011) at 25, available at:

http://www.umweltbundesamt.de/uba-info-medien-e/4125.html.

35 Shepherd supra note 6 at 17.

8

environment means that this short time-frame has the capacity to manifest grave long-term

damage to the health of the Muktuk Ocean.

Rinnuco breached Articles 14(1)(c) and 14(1)(d). This requires that Rinnuco shares necessary

information in the interests of the marine environment. This information includes investigating

the negative impacts of ocean fertilization on the marine environment. Some effects have been

shown to relate to the disruption of marine food webs which could have disastrous effects for

other organisms and species, and more disturbingly may actually result in the warming of the

atmosphere and ocean surface.36 The deaths of nine narwhals off the coast of Rinnuco

demonstrates the grave danger ocean fertilization poses to the marine environment. As

discussed, evidence suggests the re-release of carbon can have a negative impact on the

environment and increases the consequences of climate change.37 This results in shrinking ice

cover that is vital for narwhals in hiding from predators such as killer whales.38

In the absence of a precautionary approach, there is a real and grave threat to the sustainability

of the narwhal. As such, it is likely further damage will result from Rinnuco continuing their

ocean fertilization experiment.

3. Rinnuco infringed the CMS

The CMS provides a global platform for the conservation and sustainable use of migratory

animals and their habitats. Both Aeolia and Rinnuco are listed as Range States for narwhals

under the CMS, which provides for narwhals as near endangered under Appendix II. As such

36 Freestone and Rayfuse, Ocean Iron Fertilization and International Law (2008) 364 Marine

Ecology Progress Series 227 at 229.

37 Id.

38 Shadbolt, Cooper and Ewins, supra. note 28 at 2.

9

narwhals have acquired special protection under CMS provisions. Article 4(3) and 4(4) of the

CMS provides that Range States shall endeavour to conclude agreements that benefit the

species and give priority to those species in an unfavourable conservation status.39 The CMS

further advises that State Parties are encouraged to take action with a view to concluding

agreements for any population or any geographically separate part of the population of any

species.40 Rinnuco violated the CMS by failing to mitigate the impacts of ferrous sulphate on

the marine environment. In the absence of any agreement to consider the impact of their

experiment on marine life, Rinnuco failed to prioritise the unfavourable conservation status of

the narwhal as required under the CMS.

4. Rinnuco contravened the London Convention and the London Protocol

The London Protocol and London Convention, UNCLOS and CBD are complementary and

mutually reinforcing.41 Resolution LDC.44(14) and Article 3.1 requires parties to the London

Convention to comply with the precautionary principle in environmental protection.42 Article

15 of the Rio Declaration states “in order to protect the environment, the precautionary

principle will be widely applied by states.”43 In line with this approach, ocean fertilization

39 Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333;

19 ILM 15 (1980); ATS 1991/32; BTS 87 (1990) [CMS], Art 4(3) and Art. 4(4).

40 CMS, Art. I (1).

41 Verlaan, Geo-engineering, the Law of the Sea, and Climate Change, (2009) CCLR 4 446 at

454.

42 London Convention on the Prevention of Marine Pollution by Dumping of Wastes Dec. 29,

1972, 1046 U.N.T.S. 138 [London Convention].

43 Rio Declaration on Environment and Development, adopted by the UN Conference on

Environment and Development, Rio de Janeiro (Brazil), 3–14 June 1992, UN Doc.

A/CONF.151/26 (Vol. I), 12 Aug. 1992, Principle 15, available at:

10

cannot be undertaken until there is an adequate scientific basis to justify this research. The

Environmental Impact Assessment (EIA) undertaken by Rinnuco failed to meet the assessment

procedure under the London Protocol as these activities were not subject to a thorough

scientific assessment.44 Rinnuco’s activities breached the precautionary principle as set out

under the Rio Declaration and the London Protocol and which also underpins the CBD.

Rinnuco violated the requirements set out under Resolution LC-LP.2 (2010).45 This provides

guidance in respect of assessing the legitimacy of framework for scientific research that

involves ocean fertilization experiments.46 Rinnuco failed to undertake a full environmental

assessment of the proposed activity including consideration of the likely environmental impact

of the experiment and the risks (both known and unknown) associated with it. Even if

Rinnuco’s ocean fertilization could be classified as a scientific experiment within the London

Protocol, the framework requires Rinnuco to put in place procedures to monitor and facilitate

adaptive management in respect of the experiment. 47

Dumping is defined under UNCLOS as the deliberate disposal of waste or other matters at

sea.48 Article 4 clarifies that the placement of matter which is contrary to the aims of the

Convention or Protocol is to be regarded as dumping.49 This provides that particular attention

http://www.unep.org/documents.multilingual/default.asp?documentid=78&articleid=1163.

[Rio].

44 London Convention, Art. 14(4).

45 Resolution LC-LP.2 32/15 (2010).

46 Id.

47 Id. Annex 6 at 3.

48 UNCLOS, Art 1(5)(a).

49 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matter, 7 November 1996, 2006 ATS 11 [London Protocol].

11

shall be paid to opportunities to avoid dumping in favour of environmentally preferable

alternatives.50 The reduction in the burning of fossil fuels provides a more productive and

reliable method to mitigating climate change. Furthermore, these measures avoid the moral

hazard created by Rinnuco’s ocean fertilization experiment.51 Rinnuco has failed to avoid

dumping in favour of an environmentally favourable option52 and has violated Article 4.53

B. RINNUCO’S EXPERIMENT BREACHES INTERNATIONAL LAW

1. Rinnuco’s experiment caused transboundary harm

Rinnuco added iron sulphate to the Muktuk Ocean, where currents spread this matter beyond

national boundaries and can harm migratory animals such as narwhals. This ocean fertilization

experiment has resulted in the death of nine narwhals, which are a shared resource between

Aeolia and Rinnuco. These deaths show that Rinnuco have caused significant transboundary

harm through their experiment and any re-initiation of this experiment will further breach the

no harm principle.

50 Id.

51 FRANK AND BERNANKE, PRINCIPLES OF ECONOMICS (2ND ED, MCGRAW-

HILL/IRWIN, NEW YORK, 2004) AT 316.

52 Schneider, Earth systems engineering and management, Nature, 409, (2001). See also

Allenby, Climate change negotiations and geoengineering: Is this really the best we can do?,

Environmental Quality Management 20, (2010): 1-16 DOI: 10.1002/tqem.20276, available

online at: http://doi.wiley.com/10.1002/tqem.20276.

53 London Protocol, Art. 4.

12

The no harm principle is an established rule of customary law. It was held in the Trail Smelter54

arbitration case that “no state has the right to use or permit the use of its territory in such a

manner as to cause injury on or in the territory of another or the properties therein”. In the

Malaysia v Singapore case55 the joint declaration noted that “States must have due regard to

the rights of other states and to the protection and preservation of the marine environment.”

The EIA failed to take account of the potential damage to the interests of Aeolia in their

territory and Rinnuco did not mitigate the potential damage to migrating narwhals.

Ocean currents spread the iron sulphate used in ocean fertilization beyond national state

boundaries and can infringe on other states territories. This experiment caused transboundary

harm outside of Rinnuco’s EEZ and is not a legitimate exercise of sovereign rights.

2. Rinnuco’s actions do not comply with the precautionary principle

The precautionary principle is an established principle of customary international law,56 which

states that where an activity raises threats of harm to the environment or to human health,

preventative decision making and measures must be pursued. Rinnuco has breached this

principle by carrying out an ocean fertilization experiment on such a large scale and without

the requisite scientific certainty.

54 Trail Smelter arbitration (United States v Canada) Arbitral Tribunal 1941 at 1907.

55 Joint Declaration of Judges Hossain and Oxman Case concerning Land Reclamation by

Singapore in and around the Straits of Johor (Malaysia v Singapore) Request for Provisional

Measures [2003] ITLOS at paragraph 16.

56 McIntyre and Mosedale, The Precautionary Principle as a norm of customary

international law 9[2] Journal of Environmental Law 199 at 222.

13

In the Gabčikovo-Nagymaros Project57 case both parties recognized the necessity to comply

with this principle in the face of scientific uncertainty. Judge Weeramantry stated in the

Nuclear Weapons Case,58 that core principles of environmental law, such as the precautionary

principle, do not depend on treaties for their application. These principles should be applied as

a rule of international law as “they are part of the sine qua non for human survival.”59

The strength of the precautionary principle was further recognized in the Pulp Mills case where

it was stated “the precautionary principle is not an abstraction or an academic component of

desirable soft law, but a rule of law within general international law as it stands today.”60 In

Southern Bluefish Tuna (Requests for Provisional Measures)61 the International Tribunal for

the Law of the Sea (ITLOS) applied the precautionary principle and recognized that it was

necessary for the parties to act "with prudence and caution" to ensure effective conservation of

southern bluefish tuna. Rinnuco must not continue with ocean fertilization on this scale due to

the damage that it has caused on the ecosystem of the Muktuk Ocean – a shared resource

between Rinnuco and Aeolia.

Furthermore, Rinnuco must stop this ocean fertilization experiment as there is no adequate

scientific basis through which to conduct this experiment. In Artegodan GmbH v Commission

of the European Communities62 the European General Court stated that the high level of

57 Case Gabčikovo-Nagymaros Project (Hungary v. Slovakia) 1997 ICJ Reports.

58Legality of the threat or use of nuclear weapons, [Nuclear Weapons case] 1996 Advisory

Opinion of the ICJ - Dissenting opinion of Judge Weeramantry.

59 Id.

60 Pulp Mills on the River Uruguay (Argentina. v. Uruguay) 2010 I.C.J 14.

61 Southern Bluefish Tuna Cases (New Zealand v Japan; Australia v Japan) Provisional

Measures 1999 at paragraph 77.

62 European Court Reports 2010 II-00491.

14

protection of the environment requires the application of the precautionary principle. This

requires a change in emphasis “in favour of a bias towards safety and caution.”63 The

precautionary principle must be applied prospectively in this case, in order to prevent Rinnuco

from damaging further the delicate ecosystem of the Muktuk Ocean and threatening more

irreversible transboundary harm to narwhals and to their marine environment.

3. Rinnuco breached the principle of proportionality

Rinnuco has breached the general principle of proportionality in undertaking an ocean

fertilization experiment on this scale, which threatens narwhals and marine biodiversity in the

Muktuk Ocean. The principle of proportionality is used to assess the lawfulness of measures

where there is conflict between the interests of parties. 64 Furthermore, as stated in the Nuclear

Weapons case the ICJ held that respect for the environment is a key element in assessing

whether an action “is in conformity with the principles of necessity and proportionality.”65

Firstly, the scale of Rinnuco’s experiment is disproportionate. Resolution LC-LP.1 (2008) on

the Regulation of Ocean Fertilization states that due to the scientific uncertainties surrounding

ocean fertilization, activities other than legitimate scientific research are prohibited. As

Rinnuco is dumping 15,000kg of ferrous sulphate powder in a 2,000 km2 area, this completely

exceeds small scale scientific research. This large scale hazardous experiment, coupled with

63 Freestone, The Road to Rio: International Environmental Law after the Earth Summit 6,

Journal of Environmental Law 193 at 221 (1994).

64 Franck, On Proportionality of Countermeasures in International Law, The American

Journal of International Law 102 (4) 715 (2008).

65 Nuclear Test cases supra note 58.

15

the inadequate EIA, further display that Rinnuco has acted disproportionately and recklessly in

carrying out this ocean fertilization experiment.

Secondly, Rinnuco has already met its targets under the Kyoto Protocol.66 This ocean

fertilization experiment is therefore not necessary to comply with international treaties. Thus,

it is probable that Rinnuco is undertaking this experiment mainly for commercial reasons, in

order to increase fish production and to trade carbon offsets.67 Commercial interests cannot

prevail where a threat to biodiversity exists.68 In the Haida Salmon Ocean Fertilization Project69

the objective of the project was clearly commercial – to stimulate the marine ecosystem in

order to boost the salmon population and to sell carbon credits. This experiment was widely

condemned for breaching international law for commercial gain. Here, Rinnuco are hiding

behind the guise of climate change mitigation, despite the fact that they have already met their

Kyoto Protocols obligations. Rinnuco cannot justify a large scale dangerous experiment for

economic reasons and for potential climate change purposes.

66 Record Annex A [10] at 5.

67 Id. [12].

68 As set out by the European Court of Justice in R v Secretary of State for the Environment

(ex parte RSCB) Case C – 44/95.

69 Information on the Haida Salmon Restoration project is available at

www.haidasalmonrestoration.com.

16

C. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION IN THIS

MATTER

1. The Court has jurisdiction under UNCLOS

(a) Rinnuco’s notice of revocation is invalid

Both Aeolia and the Rinnuco are parties to UNCLOS and both submitted declarations pursuant

to Article 287 of UNCLOS consenting to the jurisdiction of the Court in relation to disputes

arising under the convention. Judge Benjaoul stated that any state is who consents to join the

club, must abide by the rules governing the club’s activities.70 Article 288 of UNCLOS

provides that a court or tribunal referred to in Article 287 shall have jurisdiction over any

dispute concerning the interpretation or application of the convention. A declaration made

under Article 287 remains in force three months after the notice of revocation has been

deposited with the Secretary-General of the United Nations and a notice of revocation does

not, in any way, affect proceedings pending before the Court having jurisdiction. Rinnuco has

deposited the notice of revocation on 28 March 2016, only a few days before the proceedings

in the Court have been instituted. Therefore, Rinnuco’s declaration was still in force when the

proceedings were instituted and Rinnuco must accept the jurisdiction of this Honorable Court

on this basis.

The revocation is not valid and the Court has jurisdiction to decide on this matter. It was stated

by this Court in the Croatian Genocide case that, if at the date of the filing of an application

70 Case concerning fisheries jurisdiction (Spain v Canada) (Jurisdiction of the Court),

Summaries of judgements, advisory opinions and orders of the International Court of Justice

(1998), at 56, available online at: www.icj-cij.org/docket/files/96/7535.pdf.

17

all the conditions necessary for the Court to have jurisdiction were fulfilled, it would be

unacceptable for that jurisdiction to cease to exist as the result of a subsequent event.71

By revoking the UNCLOS declaration, Rinnuco attempted to deprive Aeolia of its rights and

means of redress under UNCLOS. In Judge Benjaoul’s opinion in the Spain v Canada case,

Canada placed a reservation to a declaration of the Court’s jurisdiction in order to protect itself

in advance against any judicial proceedings.72 Similarly, Rinnuco revoked its declaration in

order to protect itself against a legal action in relation to its ocean fertilization experiment.

Moreover, Rinnuco violated international law and provisions of UNCLOS when it deposited

powdered ferrous sulphate into the Muktuk Ocean before the notice of revocation was filed.

(b) Rinnuco has breached obligations under UNCLOS

Rinnuco has breached UNCLOS,73 including Article 192 of UNCLOS which provides a

general obligation for states to protect and preserve the marine environment. This applies to

areas within and beyond national jurisdiction (including the EEZ). The regime created by

international treaties is governed by the principle of pacta sunt servanda.

Every treaty in force is binding upon the parties to it and must be performed by them in good

faith.74 Once a state commits itself to a regime for environmental protection, a violation of its

commitment would result in an injury to the rights of another state and thus incur international

71 Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Croatia v. Serbia), Preliminary Objections, Judgment, I.C.J. Reports (2008) at 438.

72 Spain v Canada, supra note 70 at 56.

73 See Section A.

74 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331(1969), Art. 26.

18

responsibility.75 Rinnuco has breached international environmental law and caused an injury

to the rights of Aeolia. Therefore, this Honorable Court is the most appropriate organ to decide

on Rinnuco’s responsibility.

(c) The Court has jurisdiction under UNCLOS in relation to breaches of other

international treaties

UNCLOS complements and reinforces other conventions containing specific provisions in

relation to protection of marine biodiversity.76 This is consistent with the terms of Article

311(2) and (5) of UNCLOS, and with Article 30(3) of the Vienna Convention on the Law of

Treaties.77 On this basis, in relation to specific breaches of CBD, CMS, London Convention

and London Protocol, the method used to resolve this dispute should be provided under

UNCLOS and this Honorable Court has jurisdiction in this matter.

Bernard H. Oxman78 states that the overarching power of UNCLOS results from the following

elements: the unqualified obligation on states to take all measures consistent with UNCLOS to

prevent, reduce and control pollution of the marine environment in Article 192; the

incorporation of the obligations of more detailed global or generally accepted international

rules by competent international organizations or diplomatic conferences; and the requirement

75 Owada, International Environmental Law and the International Court of Justice, Inaugural

Lecture at the Fellowship Programme on International and Comparative Environmental Law,

available online at http://ias.jak.ppke.hu/hir/ias/200634sz/owada.pdf.

76 Oxman, The Duty to Respect Generally Accepted International Standards, New York

University Journal of International Law and Politics (1991), 109 – 159.

77 Southern Bluefin Tuna, supra note 61, at 40-41.

78 Oxman, supra note 76.

19

that national laws and regulations shall be no less effective than those of UNCLOS.79 In the

Southern Bluefin Tuna case, the ITLOS recognized that an antecedent implementing

convention does not vacate the obligations imposed by the framework convention. Therefore,

UNCLOS is viewed as a framework treaty extending beyond the reach of other treaties

applicable in this case.80

2. The Court has jurisdiction under the Convention on Biological Diversity (CBD)

Article 27 of the CBD provides that, in the event of a dispute between contracting parties

concerning the interpretation or application of the CBD, where the parties concerned cannot

reach an agreement by negotiation or mediation, the parties have a choice of fora to resolve a

dispute. Rinnuco has provided a written declaration submitting itself to the jurisdiction of the

Court in respect of the CBD.81

The failure by Rinnuco to comply with its declaration represents a clear attempt to renege on

its obligations under the CBD, and moreover to deprive Aeolia of its rights and means of

redress under this instrument.

3. The Court has jurisdiction under London Protocol and London Convention

Rinnuco submitted a declaration under Article 16 of the London Protocol stating that when it

is a party to a dispute in relation to the application and interpretation of Article 3.1 and 3.2 of

London Protocol, its consent is required before the dispute may be settled by arbitral procedure.

79 UNCLOS, Arts. 207-212.

80 Southern Bluefish Tuna, supra note 61.

81 Records, Annex A,4.

20

As this matter falls within these Articles82 and Rinnuco has not given consent, this Court is the

proper forum to adjudicate in this matter. Rinnuco breached other Articles of the London

Protocol including Article 483 and therefore this Honorable Court has jurisdiction to resolve a

dispute in relation to London Protocol. As the London Protocol is consistent with the

overarching aims to protect the marine life and biodiversity, it further implements UNCLOS84.

Subsequently, this Court is the most appropriate forum to rule on the breach by Rinnuco of

these principles.

D. RINNUCO CANNOT RELY ON THE DEFENCE OF MITIGATION OF

CLIMATE CHANGE

1. The climate change treaties do not provide justification for carrying out ocean

fertilization activities

Both Rinnuco and Aeolia are parties to UNFCCC and Kyoto Protocol. The UNFCCC contains

vague commitments regarding stabilisation of climate, and no commitment at all on reductions

of greenhouse gases. 85

The UNFCCC places an obligation on its parties to promote and cooperate in the conservation

and enhancement, as appropriate, of sinks, which are the mechanisms removing greenhouse

82 See Section A.

83 Id.

84 Verlaan, supra note 41, at 453.

85 BIRNIE, BOYLE AND REDGWELL, INTERNATIONAL LAW & THE ENVIRONMENT,

(3RD EDN. OXFORD UNIVERSITY PRESS 2009), at 370.

21

gases from the atmosphere86 and include biomass, forests and oceans.87 This is as far as this

general obligation goes, and does not justify ocean fertilization.88 Although sinks include

oceans under the UNFCCC, the Kyoto Protocol does not provide for ocean fertilization

activities as means to protect sinks and climate change mitigating measures.89 The Kyoto

Protocol imposes obligations on states to reduce greenhouse gas emissions globally, and

allows them to trade in carbon offsets. Ocean sink offsets are not permitted under the Kyoto

Protocol.

Moreover, carbon offsets under the Kyoto Protocol only relate to projects in another country’s

territory.90 Since the seventh Conference of the Parties (COP7) to the UNFCCC in 2001, the

only projects that have been considered in the category of sinks were related to the use of land

and forests. Therefore, Rinnuco cannot rely on the UNFCCC and Kyoto Protocol as they do

not permit ocean fertilization as the climate change mitigating method. Additionally, due to the

precautionary principle and obligations stemming from UNCLOS, the CBD, the London

Convention, and the London Protocol, the Kyoto obligations cannot be used as a justification

of activities contrary to the international law of the sea. Therefore, the reduction of global

warming cannot be pursued at the cost of or with risk to biodiversity.91

86 United Nations Framework Convention on Climate Change 1771 UNTS 107; S. Treaty

Doc No. 102-38; U.N. Doc. A/AC.237/18 (Part II)/Add.1; 31 ILM 849 (1992) [UNFCCC]

Art. 1(8).

87 UNFCCC, Art. 4(1)(d).

88 Freestone, Rayfuse, supra note 36 at 7.

89 Evans-Pritchard Jayanti, supra note 32, at 53.

90 SCHEIBER, PAIK, REGIONS, INSTITUTIONS, AND THE LAW OF THE SEA: STUDIES

IN OCEAN GOVERNANCE (MARTINUS NIJHOFF PUBLISHERS 2013), at 193.

91 Marcinak, Nawożenie Oceanów Żelazem (Ocean Iron Fertilization), Prawo Morskie t.

XXVII (2011), available online at https://ssrn.com/abstract=2400492

22

2. Principles of international law do justify carrying out ocean fertilization activities

Rinnuco’s ocean fertilization experiment breached principles of international law.92 As such

Rinnuco cannot rely on these principles in an attempt to evade its responsibility to the marine

environment and further encroach upon the bedrock that underpins international environmental

law. As discussed, Rinnuco has met its obligation under the Kyoto Protocol.93

Rinnuco is not entitled to further their own state interests by compromising the welfare of the

marine environment in its shared ocean territory, nor does there exist any international

framework that would permit it to do so.94

3. Rinnuco cannot rely on the defence of climate necessity

The defence of necessity in international law is used to justify acts taken where there is a “grave

danger either to essential interests of the state or of the international community as a whole.”95

The plea of necessity exists only in exceptional circumstances precluding wrongfulness. It is a

limited defence and Rinnuco cannot plead that this experiment is necessary to combat climate

change. In Gabcikovo-Nagymaros this Honorable Court based its assessment of necessity on

92 See section B.

93 Evans-Pritchard Jayanti, supra note 32.

94 SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (CAMBRIDGE

UNIVERSITY PRESS 2003), at 249.

95 CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE

RESPONSIBILITY: INTRODUCTION, TEXT AND COMMENTARIES (CAMBRIDGE

UNIVERSITY PRESS 2002), at 178.

23

the International Law Commissions Draft Article on State Responsibility,96 which established

that an essential interest to the state was threatened by a “grave and immediate peril” and that

the act challenged was the only means of safeguarding this interest.

Rinnuco can not claim that this ocean fertilization experiment is necessary to halt climate

change, as ocean fertilization is not an effective or safe means of halting climate change.

The ocean fertilization experiment, as carried out by Rinnuco is not a “golden bullet of

geoengineering”97 and it will not prevent climate change and global warming on a large scale

in the long term. The absence of “immediate peril”98 and the presence of legal alternatives99 in

order to mitigate climate change further clarify that Rinnuco has not acted through necessity –

but indeed for commercial gain.

96 Draft Articles on Responsibilities of States for International Wrongful Acts, 2 (2)

Yearbook of the International Law Commission 1996, Article 33.

97 Shepherd, supra note 6.

98 Tremblay, Eco-terrorists facing Armageddon: The Defence of Necessity and Legal

Normativity in the Context of Environmental Crisis, 58 (2) McGill Law Journal 2012 322,

331.

99 Such as further reducing fossil fuel consumption.

24

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the Federal States of Aeolia respectfully requests that this

Honorable Court adjudicate and declare that:

1. Rinnuco violated principles of UNCLOS, the CBD and the London Protocol

2. Rinnuco violated principles of international law

3. Any re-initiation of this experiment by Rinnuco will further violate international law

4. The ICJ has jurisdiction to determine this matter

Respectfully submitted,

_______________________________

Agents for the Federal States of Aeolia