SIL Mooting Exercise (Respondent Nikki)

SPECIAL INTERNATIONAL TRIBUNAL

THE CASE CONCERNING

SEISMIC SURVEYS AND OIL SPILLS

THE REPUBLIC OF ARAGUAIA

(APPLICANT)

V.

THE REPUBLIC OF RISSO

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

NAMES OF COUNSELS:

AGERO, NIKKI ROSE

BOLTIADOR, MARYDITH

FORTUNA, JERYL GRACE

SEBALLOS, ARYAN

VARGAS, HANNAH

11 MARCH 2015

Respondent’s Memorial

TABLE OF CONTENTS

INDEX OF AUTHORITIES I

SUMMARY OF FACTS II

ISSUES PRESENTED III

SUMMARY OF ARGUMENTS IV

DISCUSSION/ARGUMENTS V

A. The acts made by Risso Electric Company (RECO) did violate the

principles of international law and are not attributable to the

Republic of Risso.

1

I. RECO’s actions are not attributable to the State of Risso. 2

II. Assuming ex gratia argumenti that the actions of RECO are

attributable to the Republic of Risso there exist no violation to

the principles of international law.

3

i. An Environmental Impact Assessment required under the

Espoo Convention is no longer necessary for RECO’s

activities.

4

a. Activities of RECO were not one of those listed under

Appendix I of the Espoo Convention which require an

Environmental Impact Assessment (EIA).

5

b. Considering the criteria under Appendix III of the Espoo

Convention, RECO’s activities do not result to a

significant transboundary impact.

6

ii. Assuming the activities required the issuance of an EIA,

RECO undertook necessary mitigating measures so as to

comply with the Espoo Convention.

7

iii. The precautionary approach enshrined under Principle 15 of

the Rio Declaration is not violated.8

iv. Under the Convention on Biodiversity (CBD) and the United

Nations Convention on the Law of the Sea (UNCLOS), the

acts of RECO are in accordance with the State’s right to

explore and exploit their own natural resources.

9

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III. Assuming arguendo that there is a violation of the principles of

international law, States are justified under the doctrine of

necessity.

10

B. Admiral Panfilo Blas, Chairman of the Crisis Military Commission of

the Republic of Araguaia, is criminally responsible for

committing a war crime.

11

CONCLUSION/PRAYER VI

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention on Biological Diversity, 31 I.L.M. 818 (1992). 2

Convention on Environmental Impact Assessment in a Transboundary

Context, Feb. 25, 1991, 1989 U.N.T.S. 309, 30 I.L.M. 802 (Also known as

Espoo Convention)

3

Second Amendment to the Espoo Convention, June 4, 2004. 4

United Nations Convention on the Law of the Sea 5

UNITED NATIONS DOCUMENTS

Consideration of Prevention of Transboundary Harm from Hazardous

Activities and Allocation of Loss in the Case of Such Harm, art.2,

G.A. Res. 62/68 U.N. Doc.A/RES/62/452 62nd sess. Agenda item 84

(2008)

7

Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83,

Annex, U.N. Doc. A/RES/58/83/Annex (2002).

8

BOOKS

Crawford. The International Law Commission’s Articles on State

Responsibility: Introduction, Text and Commentaries. Cambridge:

CUP, 2002.

10

JOURNAL ARTICLES

Beckmann, Alexander. “Modeling Effectiveness of Gradual Increases in

Source level to Mitigate Effects of Sonar on Marine Mammals”,

Conservation Biology 0, 0 2013.

12

Dolman, S. J., C. R. Weir and M. Jasny, “Comparative review of marine

mammal guidance implemented during naval exercises”, Marine

Pollution Bulletin 4:465–477, 2009.

13

Feit, Michael. “Responsibility of the State under International Law for the

Breach of Contract Committed by a State-Owned Entity”. Berkeley

Journal of Internal Law 28, 1 (2010).

14

Weir, “Short-Finned Pilot Whales: Respond to an Airgun Ramp-up

Procedure off Gabon”, Aquatic Mammals 34: 349, 2008.

15

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GOVERNMENT PUBLICATIONS 16

International Law Commission. Responsibility of States for Internationally

Wrongful Acts: Commentaries, Fifty-third session. (Commentaries)

17

INTERNATIONAL PUBLICATIONS

International Association of Geophysical Contractors (IAGC). Seismic

Surveys and Protecting the Marine Environment, 2004.

19

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SUMMARY OF FACTS

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ISSUES PRESENTED

1. Whether or not the acts made by Risso Electric Company (RECO) violate the

principles of international law and are they attributable to the Republic of Risso.

2. Whether or not Admiral Panfilo Blas, Chairman of the Crisis Military Commission

of the Republic of Araguaia, is criminally responsible for committing a war crime.

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SUMMARY OF ARGUMENTS

RECO’s actions are not attributable to the Republic of Risso. Republic of Risso

did not use its ownership interest to instruct, direct and control the seismic survey

activities conducted by RECO. The fact that RECO initiated and asked permission to

the Republic of Risso to conduct exploration activities refutes the exercise of control by

the state.

Also, assuming that the actions of RECO are attributable to the Republic of

Risso, there is no violation to the principles of international law. RECO’s activities does

not require an EIA because of the following: (a) the activities are not listed in Appendix I

and III, also it is unlikely that it will cause adverse effect or any transboundary harm; (b)

the activities are for exploration only, not for extraction of petroleum and natural gas;

and (c) the requirement for an EIA is merely discretionary only.

Furthermore, assuming the activities required the issuance of an EIA, RECO

undertook necessary mitigating measures to comply with the Espoo Convention by

adopting ramp-up procedures, requiring non-board observer and regulating airguns in

order not use them when a whale is spotted within 500 meters of the vessel.

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DISCUSSION/ARGUMENTS

I. RECO’s actions are not attributable to the Republic of Risso.

The conduct of a corporation is not prima facie attributable to a state under

general international law, even where such corporation is wholly owned by the state or

the state has a controlling interest in it.1

In order to determine that the activities of RECO are attributable to State of

Risso, Articles 4, 5, and 8 on State Responsibility for Internationally Wrongful Acts set

forth a basis for attribution to the state. Article 5 read as follows:

Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under

international law, whether the organ exercises legislative, executive, judicial or

any other functions, whatever position it holds in the organization of the State,

and whatever its character as an organ of the central Government or of a

territorial unit of the State.

2. An organ includes any person or entity which has that status in accordance with

the internal law of the State.

Article 5 states that:

Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity, which is not an organ of the State under

article 4 but which is empowered by the law of that State to exercise elements of

the governmental authority, shall be considered an act of the State under

international law, provided that the person or entity is acting in that capacity in

the particular instance.

Article 8 entails that:

1 Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries (Cambridge: CUP, 2002) (ILC Commentaries) 74 [1].

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Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of

a State under international law if the person or group of persons is in fact acting

on the instructions of, or under the direction or control of that State in carrying out

the conduct.

In order to attribute conduct that constitutes a breach of international law

to the state, it is sufficient if one of the elements is present in the entity that

carried out that conduct: the entity is an organ of the state (structure), it is

empowered to "exercise elements of the governmental authority" (function), or it

is controlled by the state (control).2

However, the above-mentioned elements are not present in RECO. Since

corporate entities, although owned by and in that sense subject to the control of

the State, are considered to be separate, prima facie their conduct in carrying out

their activities is not attributable to the State unless they are exercising elements

of governmental authority within the meaning of article 5.3 In article 8, three terms

are enumerated, namely, “instruction, direction and control”. These terms are

also important if the acts of a corporation entity are attributable to the State. In

the case at hand, Republic of Risso did not use its ownership interest to instruct,

direct and control the activities conducted by RECO, particularly the seismic

surveys. In fact, RECO was the one who initiated and asked permission from the

Republic of Risso in order to begin exploration for hydrocarbon reserves with

Yukule. There was no evidence that the State exercises control especially in

giving instructions or directions to RECO to conduct activities to solve the energy

crisis. If the State of Risso exercised control over RECO, then, there is no need

for RECO to ask permission from the State to conduct exploration for

hydrocarbon. However, this is not the case presented here.

2 Michael Feit, “Responsibility of the State under International Law for the Breach of Contract Committed by a State-Owned Entity”, Berkeley Journal of Internal Law 28, 1 (2010).3 International Law Commission, Responsibility of States for Internationally Wrongful Acts: Commentaries, Fifty-third session.

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II. Assuming ex gratia argumenti that the actions of RECO are attributable to

the Republic of Risso, there is no violation to the principles of

international law.

i. An Environmental Impact Assessment required under the Espoo Convention is

no longer necessary for RECO’s activities.

a. Activities of RECO were not one of those listed under Appendix I of the

Espoo Convention which require an Environmental Impact Assessment (EIA).

Under Article 2 (3) of the Convention on Environmental Impact

Assessment in a Transboundary Context, also known as Espoo Convention, an

EIA is undertaken prior to a decision to authorize or undertake a proposed

activity listed in Appendix I that is likely to cause a significant adverse

transboundary impact.

In the case at hand, the circumstances stated are not applicable even if

Espoo Convention is legally binding to the Republic of Risso. Marine seismic

surveys are not listed in Appendix I and it is also unlikely that it will cause any

significant adverse effect to short-beaked dolphins.

The contention that the seismic surveys constitute “offshore hydrocarbon

production” is not tenable. This is included in the amendment to Appendix I,

which Republic of Risso has already ratified. According to the Espoo Convention,

hydrocarbon production is an “extraction of petroleum and natural gas for

commercial purposes where the amount extracted exceeds 500 metric tons/day

in the case of petroleum and 500,000 cubic meters per day in the case of gas”.

However, studies show that seismic survey is a key tool in oil and natural

gas exploration and in siting renewable energy facilities. The use of modern

seismic technology is similar to ultrasound technology. Today’s advancements in

seismic technology, which can pinpoint the most fruitful areas for hydrocarbon

potential, have contributed to reducing the overall environmental footprint

associated with oil and gas exploration. Seismic technology has also helped in

decreasing operational and safety risks associated with oil and gas development.

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Contrary to what has been said, seismic surveying is very well understood and a

very safe industry practice.4

Therefore, hydrocarbon production only refers to extraction activities, but it

is obvious that the seismic surveys have not led to the extraction of petroleum or

natural gas. So, the activities of RECO still not included in the list.

On the contention that there is a need for an EIA, Article 204, 205 and 206

of the UNCLOS and Article 4 of CBD entails that an EIA is not a mandatory

requirement for a state to comply. The provisions only states the terms, “as far as

possible”, “as appropriate” and “as far as practicable”, that states undertake an

EIA to regulate the adverse effect. Additionally, the provisions did not even state

the factors and standards that must be considered in order to conduct an EIA.

Therefore, Republic of Risso have no certain obligation to conduct an EIA and it

is merely discretionary on the part of Risso.

b. Considering the criteria under Appendix III of the Espoo Convention,

RECO’s activities do not result to a significant transboundary impact.

Under Article 3 of CBD and Article 56 and 193 of UNCLOS 193, Republic

of Risso has sovereign rights over the Yukule Island. Hence, there is no

transboundary harm that is done. In order to be considered transboundary, the

harm must be caused in the territory of a State other than the State of origin.5

Assuming that the considerations in order to become transboundary were

met, the Espoo Convention Appendix III sets the general criteria to assist in the

determination of the environmental significance of the activities not listed in

Appendix I. The following is likely to have a significant adverse transboundary

impact:

a. Size: the proposed activities are large for the type of the activity;

4 International Association of Geophysical Contractors (IAGC), Seismic Surveys and Protecting the Marine Environment, 2004.5 Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation of Loss in the Case of Such Harm, art.2(c), G.A. Res. 62/68 U.N. Doc.A/RES/62/452 62nd sess. Agenda item 84 (2008)

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b. Location: the proposed activities are located in or close to an area of

special environmental sensitivity or importance, and of proposed activities

in locations where the characteristics of proposed development that would

likely have a significant effects on the population;

c. Effects: the proposed activities with particularly complex and potentially

adverse effects, including those giving rise to serious effects on humans

or on valued species or organisms, threaten the existing or potential use

of an affected area and those causing additional loading that cannot be

sustained by the carrying capacity of the environment.

Additionally, the concerned parties shall consider the prosed activities that

are located close to an international frontier, as well as more remote proposed

activities that could give rise to significant transboundary effects far removed

from the site of the environment.6

In the case at hand, the criteria in determining the significant adverse

transboundary impact were not met. In terms of size, two vessels were used by

RECO, which are relatively modest in size. Thereby, RECO’s activities will not

cause any adverse effect because it will not constitute a large type of activity,

considering its size.

When it comes to the criterion on location, it is Republic of Risso’s

sovereign right to exploit and explore their natural resources in accordance to

Article 56 and 93 of the UNCLOS and Article 3 of CBD. Thereby, RECO’s

activities did not meet the criterion based on location.

Pertinent to the third criterion on the adverse effects caused by the

activities, it failed to establish a correlation between RECO’s activities and

transboundary harm. Even the final opinion conducted by the inquiry commission

in accordance to Article 3 (7) of the Espoo Convention, one member concluded

that the connection was “likely” to cause and continued to cause adverse impact.

One member also stated that past activities were not likely to have caused any

significant adverse transboundary impacts. The third member also found out that 6 Espoo Convention, Appendix III

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even if the activities may have caused adverse effect, the mitigation measures

will prevent the effect in the future.

Additionally, according to the study conducted by the International

Association of Geophyisical Contractors (IAGC), more than four decades of

worldwide seismic surveying and various scientific research indicate that the risk

of direct physical injury to marine mammals is extremely low and there is

currently no specific evidence demonstrating biologically significant negative

impacts on marine mammal populations7. Therefore, there is a lack of evidence

in proving that RECO’s activities caused harmful effects.

ii. Assuming the activities required the issuance of an EIA, RECO undertook

necessary mitigating measures to comply with the Espoo Convention.

Under the Espoo Convention, the parties must be mindful of the need and

importance to develop anticipatory policies and of preventing, mitigating and

monitoring significant adverse environmental impact in general and more

specifically in a transboundary context. This mitigating measures warrant that

adverse transboundary impacts will not occur.

Several navies have adopted ramp-up procedures in an attempt to

mitigate effects on marine mammals of sonar used in anti-submarine warfare8.

Ramp-up schemes are used for seismic surveys9. It uses a gradual build-up of

airgun sound level over time, usually 20-40 minutes, to warn marine mammals,

allowing them to depart from the vicinity of an airgun source before full operating

level is projected10. Additionally, according to the study conducted, their results

suggest that ramp-up protocols can be effective at reducing the number of

7 Ibid, note 4.8 S. J. Dolman, C. R. Weir and M. Jasny, “Comparative review of marine mammal guidance implemented during naval exercises”, Marine Pollution Bulletin 4:465–477, 2009.9 Ibid, note 8.10 Weir, “Short-Finned Pilot Whales: Respond to an Airgun Ramp-up Procedure off Gabon”, Aquatic Mammals 34:349 (2008).

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marine mammals experiencing sounds that are high enough to cause temporary

or permanent threshold shifts.11

In the case at hand, RECO has undertaken a ramp up procedure

beginning on 1 April 2008, which is one of the mitigating measures presented.

The survey begins with the firing of a single airgun (the smallest airgun in terms

of energy output and volume). Additional airguns are gradually activated over a

period of 20 to 40 minutes until the desired operating level of the airgun array is

reached. Furthermore, it has taken additional steps of requiring all survey vessels

to have a non-board observer and of regulating airguns to not use them when a

whale is spotted within 500 meters of the vessel. These steps reduce any alleged

impacts below the “significant” level, thereby complying the requirement under

the said convention.

CONCLUSION/PRAYER

11 Alexander Beckmann, “Modeling Effectiveness of Gradual Increases in Source level to Mitigate Effects of Sonar on Marine Mammals”, Conservation Biology 0, 0 2013.

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Respondent, the State of Risso, respectfully prays that the judgment be rendered

that:

1. The acts made by RECO did not violate the principles of international law and

are not attributable to the Republic of Risso.

2. Admiral Panfilo Blas, Chairman of Crisis Military Commission of the Republic of

Araguaia is criminally responsible for committing the war crime.

Respectfully submitted,

AGENTS OF RESPONDENT

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Documents

SIL Mooting Exercise (Respondent Nikki)