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1759
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE, NETHERLANDS
QUESTIONS RELATING TO
OCEAN FERTILIZATION AND MARINE BIODIVERSITY
FEDERAL STATES OF AEOLIA
(APPLICANT)
v.
REPUBLIC OF RINNUCO
(RESPONDENT)
MEMORIAL FOR THE RESPONDENT
2016
ii
TABLE OF CONTENTS
TABLE OF CONTENTS …………………………………………………………………... ii
INDEX OF ABBREVIATIONS ……………………………………………………………. v
INDEX OF AUTHORITIES…………………………………………………………….…. vi
STATEMENT OF JURISDICTION……………………………………………………. xviii
QUESTIONS PRESENTED ……………………………………………………………... xix
STATEMENT OF FACTS………………………………………………………………… xx
SUMMARY OF ARGUMENTS …………………………………………………………. xxi
ARGUMENTS ………………………………………………………………………………. 1
ISSUE I. THE ICJ DOES NOT HAVE THE JURISDICTION OVER THE
DISPUTE BETWEEN AEOLIA AND RINNUCO ……………………………………….. 1
1. AEOLIA LACKS LOCUS STANDI BEFORE THE COURT ………………………... 1
1.1. Aeolia cannot invoke international responsibility of Rinnuco as an injured State … 1
1.1.1. Aeolia is not an injured State under Article 3 of CBD, Article 3.3. of the
London Protocol and Articles 192, 194, 194, 210 of UNCLOS……………………... 1
1.1.2. Aeolia is not an injured State under Article IV of CMS and
Articles 64, 65 of UNLOS……………………………………………………………. 2
1.1.3. Aeolia does not have a right to bring a claim on behalf of a group of
states or international community as a whole based on Article 42 (b)(i)
and (ii) of ARSIWA………………………………………………………………….. 3
1.2. Alternatively, Aeolia cannot raise a claim based on Article 48 of ARSIWA
as a State other than an injured State ……………………………………………... 4
2. THE COURT CANNOT ESTABLISH ITS JURISDICTION UNDER CBD AND
UNCLOS SINCE THE DISPUTE DIRECTLY AROSE OUT OF THE LONDON
PROTOCOL, WHICH IS A SELF-CONTAINED REGIME …………………………… 5
2.1. Dispute concerns the interpretation and application of the London Protocol ……... 5
iii
2.1.1. Both UNCLOS and CBD are lexgeneralis as regards to OFA……………………….. 6
2.1.2. The London Convention and Protocol directly includes OFA within the
scope of its regulation ………………………………………………………………………….. 7
2.2. Since the London Protocol is a self-contained regime in respect of which the
dispute has occurred, recourse to UNCLOS and CBD dispute settlement procedures
is excluded …………………………………………………………………………………... 8
3. IN ANY CASE, UNCLOS DOES NOT AFFORD JURISDICTION
TO THE COURT………………………………………………………………………….. 10
3.1. Limitations to compulsory DSP prevents the Court from assessing the merits
of the dispute ……………………………………………………………………………….. 10
3.2. The Court cannot exercise its jurisdiction via paragraph 2 of Article 16 of the Protocol
since Rinnuco has made a notice of revocation ………………………………... 10
3.3. Article 16 of the London Protocol excludes any further proceedings under
CBD and UNCLOS ……………………………………………………………………….. 11
ISSUE II. RINNUCO HAS NOT VIOLATED INTERNATIONAL LAW WITH
RESPECT TO ITS OFP…………………………………………………………………... 12
1. THROUGH CONDUCT OF OFP RINNUCO ENJOYS ITS RIGHT TO CONDUCT
MARINE RESEARCH ……………………………………………………………………. 12
1.1. Rinnuco`s OFP should be viewed as a legitimate scientific research for the
purpose of UNCLOS ………………………………………………………………………. 12
1.2. OFP project is legitimate for the purposes of LC-LP ………………………………. 14
2. RINNUCO DID NOT BREACH THE PRECAUTIONARY APPROACH AND
NO-HARM PRINCIPLE DURING THE SMR (OFP) …………………………………. 16
2.1.Rinnuco performed all precautionary requirements ……………………………….. 16
2.2.Rinnuco did not cause transboundary harm ………………………………………… 18
iv
3. OFP HAS TO BE TREATED AS A MEAN OF PERFORMANCE OF
DOHA AMENDMENTS …………………………………………………………………..19
3.1. Doha Amendment can be applied in marine environment ………………………… 20
3.2. OF is a type of a sink of GHG for the purpose of the UNFCCC …………………...20
CONCLUSION AND PRAYER ………………………………………………………….. 22
v
INDEX OF ABBREVIATIONS
ARSIWA
Articles on Responsibility of States for internationally wrongful acts
CCSBT
Convention for the Conservation of Southern Bluefin Tuna
DSP
dispute settlement procedure
DSPs
dispute settlement procedures
EEZ
Exclusive economic zone
EIA
Environmental impact assessment
GHG(s)
Greenhouse gas(es)
HMSs
highly migratory species
ICJ
International Court of Justice
IEL
international environmental law
ITLOS
International Tribunal for the Law of the Sea
LC-LP
London Convention and London Protocol
METs
multilateral environmental treaties
OF
ocean fertilization
OFA
ocean fertilization activity
OFP(s)
ocean fertilization project(s)
OIF
ocean iron fertilization
OSPAR
The Convention for the Protection of the Marine Environment of the
North-East Atlantic
PCA
Permanent Court of Arbitration
SMR
Scientific Marine Research
vi
INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
1. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter, Dec. 29, 1972, 1046 U.N.T.S 120, hereinafter cited as London
Convention………………………………………………………………………….15
2. United Nations Framework Convention on Climate Change, May 9, 1992, U.N. Doc.
A/AC.237/18 (Part II)/Add.1, hereinafter cited as UNFCCC……………… 18, 20, 21
3. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331,
hereinafter cited as VCLT……………………………………………………… 12, 20
4. Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, hereinafter cited as
UNCLOS…………………………………………………... 2, 3, 7, 8, 11-14, 16-18
5. Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, hereinafter cited
as CBD……………………………………………………………………….. 2, 16, 18
6. Convention on the Conservation of Migratory Species of Wild Animals1979, Jun 23,
1651 UNTS 333, hereinafter cited as CMS …………………………………….. 3,19
7. 1996 Protocol to the London Convention 1972, Nov. 7, 1996, 36 ILM 1 (1997),
hereinafter cited as London Protocol (1996) …………………………………... 11, 15
U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS
8. 29th Consultative Meeting / 2nd Meeting of Contracting Parties, LC 29/17 (Nov., 2007),
hereinafter cited LC 29/17 (2007) ……………………………………………. 8
9. 30th Meeting Scientific Group of the London Convention / 1st Meeting Scientific Group
of the London Protocol, LC/SG 30/14 (Jun., 2007), hereinafter cited as LC/SG 30/14
(2007) ………………………………………………………………………….. 8
vii
10. 31st Meeting Scientific Group of the London Convention / 2nd Meeting Scientific
Group of the London Protocol, LC/SG 31/16 (May, 2008), hereinafter cited LC/SG
31/16 (2008) ………………………………………………………………………….. 8
11. A compilation of recent international statements, agreements and recommendations
regarding ocean fertilization Submitted by the United Nations Environment Programme
(UNEP). 30th Consultative meeting of Contracting Parties to the London Convention &
3rd meeting of Contracting Parties to the London Protocol, 4.LC 30/INF (Aug 28, 2008),
hereinafter cited as A compilation of recent international statements, UNEP (2008)
………………………………………………………….. 16
12. Annex Six Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, LC
30/16, hereinafter cited as Annex VI, Res. LC-LP.1 (2008) …………………......... 15
13. Appendix II of the Convention on the Conservation of Migratory Species of Wild
Animals on Migratory species conserved through Agreements, 1651 UNTS 333 (Jun,
1979), hereinafter cited as CMS Appendix II (1979) ……………………………… 18
14. COP3 II/7 Proposal for the Inclusion of Narwhal (or Unicorn Whale) Monodonmonoceros in the Appendices of the Convention on the CMS of Wild Animals,
hereinafter cited as COP3 II/7 Proposal for the Inclusion of Narwhal in Appendices
of CMS (1991)……………………………………..…………………… 3
15. Decision IX/16 of the Conference of the Parties to the Convention on Biological
Diversity – Biodiversity and climate change, Doc. UNEP/ CBD/COP/DEC/IX/16 (Oct
9, 2008), hereinafter cited as Dec. IX/16 (2008)……………………………….. 13, 15
16. Doha Amendment to the Kyoto Protocol, FCCC/KP/CMP/2012/13/Add.1, Decision
1/CMP.8 (Dec 8, 2012), hereinafter cited as Doha Amendment (2012) ………. 19, 20
17. G.A. Res. 1803 (XVII) / 17 UN GAOR Supp. (No.17) at 15 / UN Doc. A/5217 (1962),
hereinafter cited as G.A. Res. 1803 (1962) ………………………………………… 13
viii
18. G.A. Res. 62/215, U.N. Doc. A/RES/62/215 (Dec, 2007) ………………………..8, 13
19. G.A. Res. 70/235, U.N. Doc. A/RES/70/235 (Dec., 2015) …………………………... 8
20. Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating
Legal Obligations, U.N. GAOR, 61st Sess., Supp. 10; U.N. Doc. A/61/10 (2006),
hereinafter cited as Guiding Principles applicable to unilateral declarations of States
(2006)………………………………………………………………………... 11
21. Kyoto Protocol to the United Nations Framework Convention on Climate Change, UN
Doc FCCC/CP/1997/7/Add.1, Dec. 10, 1997, hereinafter cited as
Kyoto
Protocol`…………………………………………………………………………… 20
22. Note
by
the
International
Maritime
Organization
(IMO),
Input
to
the
FCCC/AWGLCA/2008/16 (2008), hereinafter cited as Note by IMO (2008) … 14, 16
23. Official Records of the Third United Nations Conference on the Law of the Sea, IV U.
N. publ., Draft Articles on marine scientific research, Doc. A/CONF.62/WP.8,
hereinafter cited as Draft Articles on marine scientific research, 1975…………. 12
24. Official Records of the Third United Nations Conference on the Law of the Sea, IV U.
N. publ., Draft Articles on marine scientific research, Doc. A/CONF.62/C.3/L.29,
hereinafter cited as Draft Articles on marine scientific research, 1976 …………. 12
25. Report of the 21st consultative meeting of Contracting Parties to Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, LC/SG 21/13
(Nov., 1999),hereinafter cited as LC/SG 21/13 (1999) ………………………. 7
26. Report of the 22nd meeting of the Scientific Group, LC/SG 22/13 (Jun., 1999),
hereinafter cited as LC/SG 22/13 (1999) ……………………………………………. 7
27. Report of the Study Group of the ILC, A/CN.4/L.682 (Apr., 2006) ……………… 8, 9
28. Report of the Thirtieth Consultative Meeting and the Third Meeting of Contracting
Parties, Doc. LC 30/16 (2008), hereinafter cited as Report LC 30/16 (2008) …….. 13
ix
29. Resolution LC-LP.1 (2008) on the Regulation of Ocean Fertilization, hereinafter cited
as Resolution LC-LP.1 (2008) ………………………………………………… 14, 15
30. Resolution LC-LP.2 (2010) on the Assessment Framework for Scientific Research
Involving Ocean Fertilization, hereinafter cited as Resolution LC-LP.2 (2010) ….. 14
31. Rio Declaration, A/CONF.151/26 Vol. I (1992), hereinafter cited as Rio Declaration
(1992) …………………………………………………………………………… 2, 17
32. Special Rapporteur on State Responsibility, Fifth Rep. on State Responsibility, Int’l
Law Comm’n, A/CN.4/291 and Add.1 & 2 and Corr.1 (1976) (by Robert Ago),
hereinafter cited as Ago`s Fifth Report (1976)……………………………………... 9
33. Special Rapporteur on State Responsibility, First Rep. on State Responsibility, Int’l Law
Comm’n, U.N.Doc.A/CN.4/490 and Add.1–7 (1998) (James Crawford), hereinafter
cited as Crawford`s First Report (1998) ……………………………….. 9
34. Statement of concern regarding iron fertilization of the oceans to sequester CO2, LCLP.1/Circ.14 (Jul., 2007), hereinafter cited as Statement of concern (2007) … 7, 15
35. Stockholm Declaration, A/CONF.48/14/Rev.1 (1972) …………………………... 3, 18
JUDICIAL DECISIONS AND ARBITRAL AWARDS
36. Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicar. v. Colom.), 2016 I.C.J. 1, hereinafter cited as Sovereign Rights and Maritime
Spaces case (2016)…………………………………………………………………... 5
37. Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Georg. v. R.F.), 2011 I.C.J. 70, hereinafter cited as Convention on the
Elimination of All Forms of Racial Discrimination (2011)…………………... 5
38. Armed Activities on the Territory of the Congo (New Application: 2002) (Congo v.
Rwanda), 2006 I.C.J. 6, hereinafter cited as Armed Activities case (2006)……. 5, 10
x
39. Barcelona Traction, Light and Power Company, Limited (Belg. v Spain), Judgment,
1970 I.C.J. 3, hereinafter cited as Barcelona Traction case (1970)………………… 1
40. Case concerning the Frontier Dispute (Burk. Faso v. Mali), 1986 I.C.J. 554, hereinafter
cited as Frontier Dispute (1986)………………………………….…. 11
41. Certain Norwegian Loans (Fr. v. Norw.), 1957 I.C.J. 9, hereinafter cited as Certain
Norwegian Loans case (1957)……………………………………………………... 10
42. Chagos Marine Protected Area Arbitration (Maurit. v U.K.), Final Award, 2015 P.C.A.,
hereinafter cited as Chagos Marine Protected Area (2015)... …………….10
43. Dispute Concerning Access to Information under Article 9 of the OSPAR Convention
(Ir. v U.K.), Final Award, 2003 P.C.A., XXIII RIAA 59, hereinafter cited as Dispute
concerning access to information (2003)……………………………………...…… 8
44. Dispute regarding Navigational and Related Rights (Costa Rica v. Nicaragua), 2009
I.C.J. 213, hereinafter cited as Navigational and Related Rights (2009)…………. 17
45. East Timor (Port. v. Austr.), 1995 I. C.J. 90, hereinafter cited as East Timor case
(1995)………………………………………………………………………………… 1
46. Gabcikovo-Nagymaros (Hung. v. Slovak.), 1997 I.C.J 7, hereinafter cited as
Gabcikovo-Nagymaros case (1997)………………………………………… 2, 17, 18
47. Guyana v Suriname, Award, 2007 P.C.A. 6, hereinafter cited as Guyana v Suriname
(2007) ……………………………………………………………………………… 10
48. Interhandel case (Switz. v. U.S.), 1959 I.C. J. 6, hereinafter cited as Interhandel case
(1959)………………………………………………………………………………… 5
49. Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, Advisory
Opinion, 1950 I.C.J 221, hereinafter cited as Interpretation of Peace Treaties
Advisory Opinion (1950)…………………………………………………………… 5
xi
50. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226,
hereinafter cited as Nuclear Weapons Advisory Opinion (1996)……………… 2, 18
51. M/V ‘Louisa’ case (St. Vinc. and Gren. v. Spain), 2013 ITLOS 4, hereinafter cited as
M/V ‘Louisa’ case (2013)……………………………………………………… 10, 11
52. M/V ‘Saiga’ (St. Vin. and Gren. v Guin.), 1999 ITLOS 4, hereinafter cited as M/V
'Saiga' case (1999)…………………………………………………………………. 10
53. MOX Plant Case (Ir. v. U.K.), Suspension of proceedings on jurisdiction and merits and
request for further provisional Measures (Order 3), 2003 P.C.A. 2, hereinafter cited as
MOX Plant case (2003) P.C.A…………………………………………… 8
54. MOX Plant case, Request for Provisional Measures Order (Ir. v. the U.K.), ITLOS Case
No 10, ICGJ 343 (ITLOS 2001), 3rd December 2001, hereinafter cited as MOX Plant
(2001), ITLOS………………………………………………………………… 8
55. Nuclear Tests case (New Zeal. v. Fr.), 1974 I.C.J. 457, hereinafter cited as Nuclear
Tests (1974) ………………………………………………………………………… 17
56. On Responsibilities and Obligations of States sponsoring persons and entities with
respect to activities in the Area, Advisory Opinion, 2011 I.T.L.O.S. 5, hereinafter cited
as Activities in the Area (2011) ………………………………………………….. 17
57. Pulp Mills on the River Uruguay (Arg. v. Urug.), 2010 I.C.J. 14, hereinafter cited as
Pulp Mills (2010)…………………………………………………….……… 2, 17, 18
58. Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), 2012 I.C.J
422, hereinafter cited as Obligation to Prosecute or Extradite (2012)………. 4
59. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion,
1949 I.C. J. 174, hereinafter cited as Reparation for Injuries Advisory Opinion
(1949)………………………………………………………………………. 1
60. S.S. “Wimbledon” (Brit. et al. v. Germ.), Ser A, No. 1, 1923 P.C.I.J., hereinafter cited
as “Wimbledon” case (1923)………………………………………………………... 9
xii
61. South West Africa cases (Lib. v. South Afr.), 1966 ICJ 6, hereinafter cited as South
West Africa (1966)……………………………………………………….……. 1, 4, 5
62. Southern Bluefin Tuna, Award on Jurisdiction and Admissibility (New Zeal.-Jap.,
Aust.-Jap.), August 4, 2000, XXIII U.N.R.I.A.A. 1, hereinafter cited as Southern
Bluefin Tuna Award (2000)……………………………………………………….. 11
63. The M/V ‘Virginia G’ (Pan. v Guin.-Bissau), 2014 ITLOS 5, hereinafter cited as M/V
‘Virginia G’ case (2014)…………………………………………………………… 10
64. The Mavrommatis Palestine Concessions Case, Ser A, No 2, 1925 PCIJ, hereinafter
cited as Mavrommatis case (1925)…………………………………………….. 1, 5, 9
65. Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905 (1941), hereinafter Trail
Smelter Arbitration Award (1941)…………………………………………….. 2, 18
66. United States Diplomatic and Consular Staff in Tehran (U.S.A v. Iran), 1980 I.C.J. 3,
hereinafter cited asDiplomatic and Consular Staff in Tehran (1980)……………. 9
BOOKS
67. Alexander Gillespie, Whaling Diplomacy: Defining Issues in International
Environmental Law (2005), hereinafter cited as Gillespie (2005)…………………... 3
68. Andreas Zimmermann et al., The Statute of the International Court of Justice: A
Commentary (OUP Oxford, 2012), hereinafter cited as Zimmermann et
al.`(2012)`…………………………………………………………………………….. 8
69. Charles ChernorJalloh, Olufemi Elias, Shielding Humanity: Essays in International Law
in Honour of Judge Abdul G. Koroma (2015), hereinafter cited as Jalloh&Elias
(2015)……………………………………………………………………………… 10
70. Christian Tomuschat et al., Conciliation in International Law: The OSCE Court of
Conciliation and Arbitration (2016), hereinafter cited as Tomuschat et al. (2016).. 10
xiii
71. David Hunter et al., International Environmental Law and Policy (3d ed., 2007),
hereinafter cited as Hunter &Salzman (2007)…………………………….………… 6
72. David J. Attard et al., The IMLI Manual on International Maritime Law: Volume I: the
Law of the Sea (2014), hereinafter cited as Attard et al. (2014)………………... 3
73. Gerd Winter, Towards Sustainable Fisheries Law: A Comparative Analysis (2009),
hereinafter cited as Winter (2009)…………………………………………………... 3
74. Herbert L.A. Hart, The Concept of Law (1961), hereinafter cited as Hart (1961)….. 9
75. Ian Brownlie, Principles of Public International Law(2nd ed., 1973) hereinafter cited as
Brownlie(1973) …………………………………………………………….………. 18
76. Ian Brownlie, Principles of Public International Law (7th ed., 2008), hereinafter cited
as Brownlie (2008)…………………………………………………………………... 2
77. James Crawford, Brownlie's Principles of Public International Law (8th ed., 2012),
hereinafter cited as Crawford (2012)………………………………………………. 10
78. John G.Merrils, International Dispute Settlement (5th ed., 2011), hereinafter cited as
Merrils (2011)……………………………………………………………………… 10
79. John Shepherd et al., Geoengineering the Climate: Science, governance and uncertainty
(2009), hereinafter cited as Shepherd et al. (2009) …………………… 20
80. Malcolm N. Shaw QC: International Law (6th ed., 2008), hereinafter cited as Shaw
(2008)……………………………………………………………………………… 17
81. Malgosia Fitzmaurice, Whaling and International Law (2015), hereinafter cited as
Fitzmaurice (2015)………………………………………………………………….. 3
82. Mario Prost, The Concept of Unity in Public International Law, hereinafter cited as
Prost (2012)………………………………………………………………………….. 9
xiv
83. Myron H. Nordquist&Satya N. Nandan, UNCLOS 1982 Commentary: Supplementary
Documents
(2012),
hereinafter
cited
as
Nordquist&Nandan`(2012)…………………………………………………………..7
84. NicoSchrijv, Sovereignty Over Natural Resources: Balancing Rights and Duties (1st ed.,
2008), hereinafter cited as Schrijv (2008) …………………………………...… 13
85. Patricia Birnie& Alan Boyle, International Law & the Environment (2002), hereinafter
cited as Birnie& Boyle (2002) ………………………………………...…………… 17
86. Patricia Birnie et al., International Law and the Environment (3rd ed., 2009), hereinafter
cited as Birnieet al. (2009)……………………………………………… 2
87. Randall S. Abate, Climate Change Impacts on Ocean and Coastal Law: U.S. and
International Perspectives (2015), hereinafter cited as Abate (2015) ……………… 7
88. Robin Warner &Clive H. Schofield,Climate Change and the Oceans: Gauging the Legal
and Policy Currents in the Asia Pacific and Beyond (2012), hereinafter cited as Warner
&Schofield (2012) ………………………………………………….…..… 15
89. Voeffray, Franc¸ois, L’actio popularis – ou la de´fense de l’inte´reˆt collectif devant les
juridictions internationales (2004), hereinafter cited as Voeffray (2004)............... 4
ESSAYS, ARTICLES AND JOURNALS
90. Bingyu Liu, Pros and Cons of the Obligation to Conserve Biodiversity as Obligation
Erga Omnes, 6 Intern. Rev. of Soc. Sciences and Humanities 264, 268 (2014),
hereinafter cited as Liu (2014) ……………………………………………………….. 5
91. David Freestone & Rosemary Rayfuse, Ocean Iron Fertilization and International Law,
364 MAR. ECOL. PROG. SER. 227, 233 (2008), hereinafter cited as Freestone
&Rayfuse (2008)……………………………………………………………………. 6
92. Doug Wallace et al., Ocean Fertilization: A scientific summary for policy maker,
Intergovernmental Oceanographic Commission, IOC/UNESCO (IOC/BRO/2010/2),
xv
hereinafter cited as Ocean fertilization Scientific Summary IOC/UNESCO
(2010)`……………………………………………………………………………….. 15
93. Jennie Dean,Iron Fertilization: A Scientific Review with International Policy
Recommendations, 32 University of California 321, (2009) 344, hereinafter cited as
Dean (2009) ………………………………………………………………………… 15
94. K.O Buesseler, S.C. Doney, D.M. Karl et al. Ocean Iron Fertilization – Moving Forward
in a Sea of Uncertainty’, 319 Science 162 (2008), hereinafter cited as Buesseler et al.
(2008) ……………………………………………………………… 19
95. Karen N. Scott, International Environmental Governance: Managing Fragmentation
through Institutional Connection, 12 Melbourne Journal of Intern. Law177, 216 (2011),
hereinafter cited as Scott (2011)…………………………………………… 8
96. Myres S. McDougal & William T. Burke, Community Interest in a Narrow Territorial
Sea Inclusive Versus Exclusive Competence Over the Oceans, 45 CORNELL L. Q. 171,
253 (1960), hereinafter cited as McDougal & Burke (1960)………………….. 3
97. Rex J. Zedalis,“Peaceful purposes” and other relevant provisions of the revised
composite negotiating text: a comparative analysis of the existing and the proposed
military regime for the high seas, 7 Syrac. Journ. of Intern. Law and Comm. 1, 35
(1979), hereinafter cited as Zedalis (1979) ………………………………………… 12
98. Rosemary Rayfuse et al., Ocean Fertilisation and Climate Change: The Need to
Regulate Emerging High Seas Uses, 23 The Intern. Jour. of Marine and Coastal Law
297, 326 (2008), hereinafter cited as Rayfuse et al. (2008) ………………………... 15
99. Russell Unger, Brandishing the Precautionary Principle through the Alien Tort
ClaimsAct, 9 N.Y.U. ENVTL. L.J 638, 647 (2001), hereinafter cited as Unger
(2001)………………………………………………………………………………... 17
xvi
MISCELLANEOUS
100. Canada-Greenland Joint Commission on Beluga and Narwhal (JCBN), hereinafter
cited as MOU concerning establishment of Canada-Greenland JCBN (1991), available
at: http://www.nwmb.com/en/2-uncategorised/83-canada-greenland-joint-commissionon-beluga-and-narwhal (last visited at 17 Nov, 2016), hereinafter cited as CanadaGreenland JCBN ……………………………………………………………………. 3
101. Jane A. Hofbauer, The Principle of Permanent Sovereignty over Natural Resources
and Its Modern Implications (2009), available at: goo.gl/yORR9I (last visited at 12 Nov,
2016), hereinafter cited as Hofbauer (2009)………………………………... 13
102. Katinka M. van den Brink, Geoengineering: An analysis of the rules of international
environmental law governing geoengineering (master thesis, 2011), hereinafter cited as
Van den Brink (2011) ………………………………………………………. 19, 21
103. Letter from Secretary General of United Nations to the Governments of the Kyoto
Protocol
Parties
(February
13,
2013),
available
at:
http://unfccc.int/files/kyoto_protocol/doha_amendment/application/pdf/attachment_sg
_letter_doha_amendment.pdf (last visited at 12 Nov, 2016), hereinafter cited as Letter
(2013)……………………………………………………………………………….. 19
104. Marine Scientific Research A revised guide to the implementation of the relevant
provisions of the United Nations Convention on the Law of the Sea,U. N. Public. Sales,
12. New York (2010), hereinafter cited as Guide to implementation of UNCLOS
(2010) …………………………………………………………………… 12
105. Revised single negotiating text (part III).Document A/CONF.62/WP.8/Rev.1/Part III.
Extract from the Official Records of the Third United Nations Conference on the Law
of the Sea, Volume V (1976), hereinafter cited as Revised single negotiating text, part
III (1976) ……………………………………………………………………… 12
xvii
106. Statement of UNESCO/IOC ad hoc Consultative Group on Ocean Fertilization made
on June 14, 2008, available at goo.gl/5p72I8 (last visited at 10 Nov, 2016), hereinafter
cited as Statement UNESCO/IOC (2008) ………………………………………… 16
xviii
STATEMENT OF JUTISDICTION
On 4th April 206 the Federal States of Aeolia filed theApplication instituting
proceedings against the Republic of Rinnuco.On 10 May 2010 the Preliminary Objection were
submitted by the Republic of Rinnuco. Register acknowledged receipt of these documents on
23 June 2016in accordance with Article 26 of the Rules of Court.
On 11 July 2016 the Federal States of Aeolia and the Republic of Rinnucosubmit this
Joint Written Statement regarding the facts in the case of Questions Relating to Ocean
Fertilization and Marine Biodiversity (2016 General List No. 170) in accordance with Article
40, paragraph 1, of the Statute of the International Court of Justice. Parties agreed to request
the Court to decide the jurisdictional questions and merits of this matter on the basis of the rules
and principles of general international law, as well as any applicable treaties. According 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.
Parties also request the Court to determine the legal consequences, including the rights
and obligations of the Parties, arising from any judgment on the questions presented in this
matter.
xix
QUESTIONS PRESENTED
–I–
WHETHER THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER?
– II –
WHETHER RINNUCO HAS VIOLATED INTERNATIONAL LAW
BY CONDUCTING ITS OCEAN FERTILIZATION PROJECT?
xx
STATEMENT OF FACTS
The Federal State of Aeolia [Aeolia] and the Republic of Rinnuco [Rinnuco] are two
neighboring coastal States located on Scheflutti near Greenland in the Arctic Circle [R.¶1].
Their marine biodiversity is similar to the marine biodiversity around Greenland. Among other
cetaceans, narwhals inhabit the Muktuk Ocean in the waters off the coast of both States [R.¶2].
Aeolia and Rinnuco are Parties to UNFCCC and the Kyoto Protocol. Pursuant to the
later, both States committed to reduce GHG emission by at least 8% below 1990 levels during
2008-2012. Rinnuco met its defined limitation, while Aeolia did not. Since Rinnoco has also
ratified the Doha Amendment, it committed GHG emission by at least 20% in the second
commitment period [R.¶8]. To achieve this goal, after conducting an extensive environmental
assessment, Rinnuco decided to conduct ocean fertilization, which can stimulate the growth of
phytoplankton blooms [R.¶12].
On 2 December 2014 Aeolia sent the first diplomatic note and asked Rinucco to abandon
planned OFP [R.¶13]. Rinucco responded that it had conducted an impact assessment and
expressed its hopes that received data and information would help to fight against climate
change [R.¶14]. On 13 February 2015, Rinnuco completed the initial phase of its OFP and
decided to suspend it temporally. However, Rinnuco still in process of collecting date about
results of OFP [R.¶19].
On 22 April 2015, nine dead narwhals were found off the coast of Rinnuco. There is no
information about what caused death. Aeolia`s Nautilus Research Institute has conducted
necropsies, but results are inconclusive. Aeolia argues that it is Rinnuco`s project caused harm
to the marine biodiversity [R.¶20].From January 2015 to March 2016 both States tried to settle
the dispute by means of additional negotiations and mediation, but in vain. On 4 April 2016,
Aeolia submitted an Application against Rinnuco to the Register [R.¶22-23].
xxi
SUMMARY OF ARGUMENTS
–I–
The Court cannot consider the matter due to the lack of locus standi under Article 42 of
ARSIWA. Aeolia is not an injured State since no injury was caused to it. Moreover, it does not
have a right to act on behalf of a group of states or the international community as a whole.
Neither UNCLOS nor CBD explicitly confers such right of action. They also do not contain
any references to collective interest, which may give entitlement to act on a basis of erga omnes
partes or erga omnes obligations. The obligations concerned do not possess such character as
to allow Aeolia to bring a claim on a basis of Article 48 of ARSIWA.
The dispute directly arose out of the London Protocol, which is a self-contained regime
due to the existence of certain deviation fromthe provisions contained in UNCLOS and CBD
(e.g., an exclusion of OFA from the scope of notion ‘dumping’ etc.). Since a self-contained
regime is a “strong form” of lex specialis, the unity between primary norms and DSP underthe
Protocol must be remained.
The Court does not have a right to exercise the jurisdiction under Article 287 due to
Article 297 exemption in respect to the rights of a State in EEZ pursuant to Article 246. The
notice of revocation also prevents the Court from the exercise of jurisdiction. Finally, like in
Bluefin Tuna case, the further procedures are excluded as it is a single dispute which from the
very beginning was put within the framework of the Protocol. Thus, a proceeding under
UNCLOS and CBD may lead to the creation of artificial case.
– II –
OFP of Rinnuco is a legitimate scientific marine research, since it falls within the
definition provided in UNCLOS travaux préparatoires and meets the requirements of
UNCLOS. Furthermore, the OFP is in consistency with provisions of LC-LP, namely Article 3
xxii
(does not fall within the scope of dumping and pollution) of Convention and Articles 1 and 3of
Protocol. Also Respondent performed all the recommendations including the zone of conduct,
non-commercial aim and scale of the project.
There is no breach of precautionary and no-harm principles. Regarding the
precautionary, Rinnuco conducted the OFP pursuant to requirements of UNCLOS for SMR
projects. Moreover, since there is no connection between the death of narwhals and OFP,
Applicant did not follow the well-developed approach of ‘clear and convincing evidence’,
which is viewed as obligatory for recognition of transboundary harm.
OFP is a mean of performing obligations pursuant to Doha Amendment to Kyoto
protocol because firstly it can be applied in the marine environment and secondly it falls within
the definition of ‘sink’ according to UNFCCC.
1
ARGUMENTS
ISSUE I. THE ICJ DOES NOT HAVE THE JURISDICTION OVER THE DISPUTE
BETWEEN AEOLIA AND RINNUCO
1. AEOLIA LACKS LOCUS STANDI BEFORE THE COURT
A State to which obligation is due can invoke international responsibility of another
State1 if it regarded to be injured or has a right of action conferred by a treaty.2 There is no room
for the concept of action popularis in international law.3
Under the Articles on State Responsibility of States for internationally wrongful acts
(hereinafter: “ARSIWA”), recommended for application by the UNGA Resolution 56/83, a
State may be regarded an injured, if the obligation breached is owed to that State, 4 to a group
of States or the international community as a whole.5
1.1. Aeolia cannot invoke international responsibility of Rinnuco as an injured State
Aeolia does not have a right to raise a claim since it was not injured by Rinnico`s OFP
under the either obligation alleged (1.1.1-1.1.2) and cannot act on behalf of a group of states or
the international community (1.1.3.).
1.1.1 Aeolia is not an injured State under Article 3 of CBD, Article 3.3. of the London Protocol
and Articles 192, 194, 194, 210 of UNCLOS
1
Reparation for Injuries Advisory Opinion (1949), pp. 181-182; Barcelona Traction case (1970); para.35, East
Timor case (1995), para.22; ARSIWA, Art. 42.
2
ARSIWA commentary, p. 117.
3
South West Africa cases (1966), p. 47; Barcelona Traction case (1970), p. 32; Mavrommatis case (1925), p. 12.
4
Article 42(a).
5
Article 42 (b).
2
The either obligation alleged by the Applicant foresees a duty of a State “to prevent,
reduce and control pollution of marine environment”.6 The prevention principle is a part of
corpus of IEL7 that has a customary nature.8 It may be found in a number of instruments and
decisions of international bodies.9.
To claim to be injured under the obligations concerned, “damage to other States and
their environment” must be established. 10 It was recognized by Arbitral Tribunalin Trail
Smelter11and more recently by the ICJ Pulp Mills12 that evidence concerning transboundary
harm and injury must be “clear and convincing”. In contract, Aeolia did not produce any
convincing evidence that it was subjected to transboundary harm or that Rinnuco has failed to
prevent, reduce or control pollution.13 Without evidence about an injury, it is impossible to
proceed with the merits of the case and treat Aeolia as a State having the status of injured and
entitled to raise a claim. In fact, no injury has been caused to Aeolia.
1.1.2. Aeolia is not an injured State under Article IV of CMS and Articles 64, 65 of UNLOS
Aeolia argues that Rinnuco has failed to comply with the provisions of CMS and
UNCLOS, which require conservation of HMSs. However, CMS provides a general framework
for conservation of narwhals. They are enlisted in Appendix II to CMS due to a risk of hunting
6
Articles 194 para. 1, 195, 210 paras.1 and 2 of UNCLOS.
7
Nuclear Weapons Advisory Opinion (1996), para. 29; Pulp Mills (2010), para. 101.
8
Brownlie (2008) 275-285; Birnie et al. (2009) 143-152.
9
Articles 194(2), 195 of UNCLOS; Trail Smelter Award(1941), p.1965; Nuclear Weapons Advisory Opinion
(1996), para. 29; Gabcikovo-Nagymaros (1997), para.53; Pulp Mills(2010), para. 101; Principles 21 and 2 of the
Stockholm and Rio Declarations, Article 3 of CBD.
10
Articles 194(2), 195 of UNCLOS.
11
Trail Smelter Arbitration Award (1941), p.1949.
12
13
Pulp Mills(2010), para. 119.
Record, para. 20.
3
and industrial activities. 14 Being included in Appendix II, 15 narwhals are subject to special
agreements between State Parties to CMS.16 This means that CMS only encourages States to
cooperate and lacks specific obligation in respect to narwhals and other species enlisted in
Appendix II.17 States must cooperate directly on the conservation of narwhals,18 like it has been
done by Canada and Greenland.19 The same idea is represented in UNCLOS establishing “a
duty to cooperate directly or through appropriate international organization”.20
Therefore, the obligation to conserve narwhals in Muktuk Ocean is not due to Aeolia
owing to the absence of special agreement pursuant to CMS and UNCLOS. Moreover,
UNCLOS stipulates to negotiate and conclude fisheries agreement, not an agreement on
conservation. 21 Since narwhals did not suffer from fishery activity in this case and are not
protected by a particular agreement between Parties to the dispute, Aeolia cannot claim to be
injured State having the right to bring a claim.
1.1.3. Aeolia does not have a right to bring a claim on behalf of a group of states or the
international community as a whole based on Article 42 (b)(i) and (ii) of ARSIWA
14
COP3 II/7 Proposal for the Inclusion of Narwhal in Appendices of CMS, p. 4; CMS Report on the Narwhal
(1991), p. 4.
15
CMS Report on the Narwhal, p. 3.
16
Article IV of CMS.
17
Fitzmaurice (2015) 297; Gillespie (2005) 300, 315.
18
Ibid.
19
Canada-Greenland JCBN.
20
Article 64 of UNCLOS.
21
Ibid.,Attard et al. (2014) 368; Winter (2009) 21; McDougal & Burke (1960) 219.
4
A State can bring a claim on behalf of a group of States if it was specifically affected by
the breach alleged, 22 in a way distinguishing it from the generality of other States. 23
Commentary to ARSIWA exemplifies differences between general interest of States Parties to
UNCLOS and State Parties directly affected by pollution.24 According to it, while pollution of
the high seas represents a general interest, a coastal State having been polluted by toxic residues
or forced to close fisheries is considered to be injured.25 In contrast, Aeolia is not affected by
the either breach alleged.
There is also no reason to conclude that the breaches alleged were “of such character
as radically to change the position of all the other States to which the obligation is owed with
respect to the further performance”.26
1.2. Alternatively, Aeolia cannot raise a claim based on Article 48 of ARSIWA as a State
other than an injured State
Under ARSIWA invocation of international responsibility by a State other than an
injured is permitted for the protection of common interest.27 A common interest in compliance
with erga omnes partes obligations may entitle State to make a claim.28 A right to enforce
common interest “must be clearly vested by some text or instrument, or rule of law”.29State
Parties to a particular treaty are free to agree on special jurisdiction clause irrespective of caused
22
ARSIWA, Article 42 (b) (i).
23
ARSIWA, commentary to Article 42, p.119, para. 12.
24
Ibid.
25
Ibid.
26
ARSIWA, Article 42 (b) (ii).
27
ARSIWA, Article 48 (1) (a).
28
Obligation to Prosecute or Extradite (2012), para 69.
29
South West Africa (1966), para 44; Voeffray (2004) 91–92; Tams (2005) 67; ARSIWA, commentary to Art 42,
para 2.
5
individual injury.30 However, the treaties concerned do not grant Aeolia with the right to act on
behalf of a group of states. The absence of reference to common interest in UNCLOS and CBD
also proves inability of Aeolia to act on behalf of a group of states or the international
community. Merely an interest in the conservation of biodiversity does not grant a State with
locus standi due to the lack of erga omnes and erga omnes partes character.31
2. THE COURT CANNOT ESTABLISH ITS JURISDICTION UNDER CBD AND
UNCLOS SINCE THE DISPUTE DIRECTLY AROSE OUT OF THE LONDON
PROTOCOL, WHICH IS A SELF-CONTAINED REGIME
A dispute “is a disagreement between the parties on a point of law or fact”.32 The Court
has emphasized that the Parties must keep clearly opposite views in respect to “the performance
or non-performance of certain international obligations.”33 Despite the existence of a dispute
is an issue of “objective determination”,34 dispute arises when a request of one State is rejected
by another.35 Hence, this dispute occurred in respect to the provisions of the Protocol when the
claim of Aeolia to suspend OFP was for the first time rejected by Rinnuco.36
2.1. Dispute concerns the interpretation and application of the London Protocol
This dispute arose with respect to the interpretation and application of the London
Protocol, what may be proven by diplomatic notes, submitted by the Parties. Although
30
South West Africa (1966), para 67; Tams (2005) 67.
31
Liu (2014) 266.
32
Mavrommatis case (1924), at 11.
33
Sovereign Rights and Maritime Spaces (2016), para.50; Interpretation of Peace Treaties Advisory Opinion
(1950), p. 74; South West Africa case (1962), p. 328. Armed Activities case (2006) para. 90.
34
Interpretation of Peace Treaties Advisory Opinion (1950), p. 74
35
Interhandel case (1959), p. 6, 21.
36
Record, para 14.
6
negotiations do not necessarily evidence of the existence of a dispute, 37 they may help to
establish its existence and define its subject-matter.38
In the present case, the Applicant made a clear specification in diplomatic notes
concerning the subject-matter of this dispute. Though the first diplomatic note does not contain
references to any treaty provisions, the second diplomatic note mentions Article 3.1., Article
3.3., Article 4 of the London Protocol and Resolutions of LC-LP therein.39 No mentions of CBD
or UNCLOS were made.
The reference to the London Protocol is also present in the third diplomatic note of Aeolia,
dated 4 May 2015.40 Following the wording of that note, the allegations that Rinnuco`s project
violates the provisions of the CBD, CMS and UNCLOS were “in addition” to that raised with
regard to the Protocol.41
Opposing views between the Parties primary concern the provisions of the London
Protocol that has lex specialis character. Applicant`s statement that existing dispute “arises
directly under the CBD and UNCLOS” 42 is misleading. UNCLOS and CBD possess lex
generalis character in respect to OIF (2.1.1.), while the Protocol directly includes OFA within
its scope (2.1.2.).
2.1.1. Both UNCLOS and CBD are lex generalis as regards to OFA
37
Convention on the Elimination of All Forms of Racial Discrimination case, para. 30.
38
Ibid.
39
Record, p. 7.
40
Record, p. 8.
41
Ibid.
42
Annex B, Application Instituting Proceedings (2016), part II.
7
CBD and UNCLOS are lex generalis in respect to OFA. The latter is a framework
agreement binding upon all states,43 often called the constitution of the seas.44 Since UNCLOS
consists of basic obligations on dumping, it makes recourse to the London Convention and
Protocol through reference to “the global rules and standards”.45. This obliges State Parties to
UNCLOS to adopt laws and regulations no less effective than those enshrined in the London
Convention.46 The same hold true for the CBD, which does not specifically address the issue
of OFA. The Applicant has mentioned CBD Decisions on ocean fertilization, but they have no
binding force47 and are not implemented within the system of CBD.
More importantly, OFA exhausts provisions of UNCLOS as the latter lacks any mentions
of the precautionary principle.
2.1.2. The London Convention and Protocol directly includes OFA within the scope of its
regulation
State Parties to the London Convention recognized that carbon dioxide disposal relates to
the London Convention 48 and any development in this field requires the attention of the
governing body.49 Starting from 2007 it became a priority topic50 discussed under the auspice of
both the London Convention and Protocol. 51 To find different options for instrument`s
43
Freestone &Rayfuse (2008) 228.
44
Hunter &Salzman (2007).
45
Article 210(6) of UNCLOS.
46
Nordquist&Nandan (2012) 821.
47
Abate (2015) 374.
48
LC/SG 22/13(1999), para. 11.12.
49
LC 21/13(1999) para 5.26.
50
Statement of concern(2007).
LC/SG 30/14(2007), paras. 2.22 – 2.28; LC 29/17(2007), paras. 4.14 – 4.29, Annexes 5, 6; LC/SG 31/16 (2008)
51
Chapter 2 and Annex 2.
8
application, in 2008 the governing body declared that scope of both instruments covers OFA.52It
also defined OFA as “any activity undertaken by humans with the principle intention of
stimulating primary productivity in the oceans”.53
Resolutions of the UNGA, when touching the matter of OFA, encouraged such activity to
be carried within the framework of the London Convention and Protocol.54 This is explained by
the fact that LC-LP regime provides “the best available guidance” on evaluating the scientific
research proposals for ensuring the protection of the marine environment.55
More recently, the UNGA emphasized the importance of work undertaken by the contracting
states to the London Protocol “towards a global, transparent and effective control and regulatory
mechanism for ocean fertilization activities and other activities that fall within the scope of the
London Convention and Protocol”.56 Therefore, the London Convention and Protocol is a selfcontained regime explicitly covering OFA.
2.2. Since the London Protocol is a self-contained regime in respect of which the dispute
has occurred, recourse to UNCLOS and CBD dispute settlement procedures is excluded
The clashing of different legal regimes is a common phenomenon in international law.57 It
gives rise to a problem of defining a legal regime which should be applied, 58 especially, when
52
Resolution LC-LP.1(2008), para. 1.
53
Ibid, para. 2.
54
G.A. Res. 62/215, U.N. Doc. A/RES/62/215 (Dec., 2007), para. 98.
55
Resolution LC-LP.1(2008), para. 6.
56
G.A. Res. 70/235, U.N. Doc. A/RES/70/235 (Dec., 2015), para. 207.
57
Report of the Study Group of the ILC, A/CN.4/L.682 (Apr., 2006), p. 11-12.
58
Scott (2011) 177-178.
9
the Parties to a dispute have ratified a few METs with different DSPs like was in the situation
with the operation of MOX plant at Sellafield.59
The lexspecialis principle deems the most effective and practicable solution. In the
Mavrommatis case the PCIJ while analyzing relationships between two instruments, the 1922
Mandate and the 1923 Protocol XII of the Treaty of Lausanne, and their impact on the
jurisdiction of the Court has found that “in cases of doubt, the Protocol, being a special and
more recent agreement, should prevail”.60 Thus, it applied two principles lex specialis and lex
posterior.
The ICJ also has endorsed the concept of a self-contained regime,61 which is a “strong form
of lex spexialis”.62 Self-contained regimes not only form a cluster of primary and secondary
rules63 but have its internal system with “its own principles, its own form of expertise and its
own “ethos”.64
The London Protocol definitely is a self-contained regime. Its provisions deviate from
those established in UNCLOS and CBD. Under the London Protocol OFA is not a dumping.65
In this regard, it is impossible to deal with the subject of the Application clearly covered by the
Protocol and, at the same time, to ignore Article 16 on DSP of the Protocol. States are free to
agree to a specific regime of responsibility in respect to a particular set of primary norms.66
59
MOX Plant (2001), ITLOS ; Dispute concerning access to information (2003); MOX Plant case (2003) P.C.A;
Zimmermann et al. (2012) 129.
60
Mavrommatis case (1924) p. 31.
61
“Wimbledon” case (1923) pp. 23-24; Diplomatic and Consular Staff (1980) p. 41, para. 86.
62
ARSIWA, Commentary to Article 55.
63
Hart (1961) 78-80; Crawford`s First report (1998).
64
Report of the Study Group of the ILC, A/CN.4/L.682 (Apr., 2006), p. 14.
65
66
Resolution LC-LP.1(2008) on Ocean Fertilization, para. 3.
Ago`s Fifth Report (1976), p. 6, paras. 14, 17, 71.
10
Nevertheless, the unity of norms must remain.67 Thus, to determine the merits of the case under
UNCLOS or CBD means to destroy the connection between the chosen dispute settlement
procedure and primary norms of the London Protocol on OFA that constitute a self-contained
regime.
3. IN ANY CASE, UNCLOS DOES NOT AFFORD JURISDICTION TO THE COURT
3.1. Limitations to compulsory DSP prevents the Court from assessing the merits of the
dispute
The compulsory dispute settlement procedure is not applicable in this case. Article 297
contains automatic exceptions which have not to be declared. 68 However, cases before the
ITLOS evidence that the lack of mentioning may be regarded as waiving them.69 It thus must
be submitted by one of the Party to dispute.70 In this regard, the Respondent invokes Article
297 of UNCLOS establishing an exemption if a coastal state exercise“a right or discretion in
accordance with article 246”. Among the main rights listed in Article 246 is conducting of
marine scientific research in EEZ. Since Rinnuco`s project was carried out within its EEZ71 and
satisfies requirements of Article 297 in conjunction with Article 246, the Respondent shall not
be subjected to compulsory DSP enshrined in Article 287 of UNCLOS.
3.2. The Court cannot exercise its jurisdiction via paragraph 2 of Article 16 of the Protocol
since Rinnuco has made a notice of revocation
67
Prost (2012) 48.
68
Merrils (2011) 172, Jalloh & Elias (2015) 198; Tomuschat et al. (2016) 174.
Tomuschat et al. (2016) 174; M/V 'Saiga' case (1999); M/V ‘Louisa’ case (2013); M/V ‘Virginia G’ case (2014).
69
70
Guyana v Suriname (2007), pp. 114-115; Chagos Marine Protected Area (2015), p. 119.
71
Record, para 15.
11
The jurisdiction of the Court depends on two Declarations made by the Parties and their
coincidence in conferring jurisdiction.72 If a common will of the Parties are opposite, arbitration
procedure foreseen by UNCLOS shall be applied.73 The London Protocol contains the same
reference to arbitration in a case of disagreement.74 Importantly, UNCLOS allows choosing any
means of DSP at any time after ratification.75 According to the ICJ and ITLOS, in the case of
unilateral acts,“all depends on the intention of the State in question”.76By making such notice
Rinnuco had the intent to replace former DSP with immediate effect. Thus it must be respected.
Furthermore, to submit the dispute to the ICJ jurisdiction by means of Article 16 papa 2 of
the Protocol, the States shall agree to use one of the listed DSPs. Owing to the lack of agreement,
only arbitral tribunal set under Annex 3 may have jurisdiction over this dispute. However,
Rinnuco`s consent is required for arbitration.77
3.3. Article 16 of the London Protocol excludes any further proceedings under CBD and
UNCLOS
The Respondent calls attention upon the conclusion reached in Bluefin Tuna case.78 The
main issue before the Tribunal was whether Article 16 of CCSBT on DSPs excludes proceeding
under UNCLOS. The answer was affirmative, despite the lack of explicit provision on such
exclusion in CCSBT. The rationale is that it was “a single dispute arising under both
Certain Norwegian Loans case (1957), p.23; Armed Activities in Congo case (2006), para 88; the M/V ‘Louisa’
72
case (2013), para 81.
73
Article 287(3) of UNCLOS; Crawford (2012) 736.
74
Article 16 para 2 of the London Protocol.
75
Article 287(1) of UNCLOS.
76
Frontier Dispute (1986), para. 39; Guiding Principles applicable to unilateral declarations of States (2006),
commentary to Principle 1, at 370; the M/V ‘Louisa’ case(2013), paras. 74-75.
77
Record, para 7.
78
Southern Bluefin Tuna Award (2000).
12
Conventions. To find that […] there is a dispute actually arising under UNCLOS which is
distinct from the dispute that arose under the CCSBT would be artificial”.79In the same vein,the
dispute between Aeolia and Rinnuco is a single one. Therefore, Article 16 of the Protocol within
the contemplation of Article 281(1) of UNCLOS excludes recourse to DSP provided by
UNCLOS so as to avoid the creation of artificial case.
ISSUE II. RINNUCO HAS NOT VIOLATED INTERNATIONAL LAW WITH
RESPECT TO ITS OFP
1. THROUGH CONDUCT OF OFP RINNUCO ENJOYS ITS RIGHT TO CONDUCT
MARINE RESEARCH
1.2.
Rinnuco`s OFP should be viewed as a legitimate scientific research for the
purpose of UNCLOS
Respondent claims that Rinnuco`s OFP falls within the definition of SMR. Since the
term “scientific marine research” is not defined in UNCLOS80, following the provisions of the
VCLT 81 , Respondent uses travaux préparatoiresfor interpretation of it. Analyzing the
preparatory works, SMR can be defined as “any study or related experimental work designed
to increase mankind’s knowledge of the marine environment”82 “and is conducted for peaceful
purposes”83. All the purposes of the project (research of the effect of OF, mitigation of climate
change, develop a new way of meeting emission reduction targets or commitments and increase
79
Ibid., para 54.
80
Guide to implementation of UNCLOS (2010) 4, para. 7.
81
VCLT, Art. 32.
82
Revised single negotiating text, part III (1976), art. 48; Draft Articles on marine scientific research, 1976, Arts.
1,2.
83
Draft Articles on marine scientific research, 1975, Arts. 1, 2, para. 4.
13
fish production)84 satisfy the traits of abovementioned definition. Thus, the OFP of Rinnuco
can be considered as aSMR for the purposes of UNCLOS.
Moreover, the project of Rinnuco meets the demands of general principles, set for the
SMRs85 , namely it has a peaceful purpose, because it has non-aggressive and non-military
character 86 . The fact that international bodies support OF in the context of “small-scale
scientific research studies within coastal waters87” and even encourage the states to study it88,
means that OF is regarded as compatible with Art, 240(b) of UNCLOS. Pursuant to Art.238 of
UNCLOS “all States, irrespective of their geographical location, and competent international
organizations have the right to conduct marine scientific research” in consistency with
provisions of the Convention89. Furthermore, as a coastal state Rinnuco has a sovereign “right
to regulate, authorize and conduct marine scientific research90” in its EEZ. Since the project
was carried out in EEZ, the research does not interfere with others “legitimate use of the sea91”.
Finally, Rinnuco highlights the existing permanent sovereignty over the natural
resources92 and right to exploit them93owned by each state, which includes resources of EEZ94.
84
Record, para. 12
85
UNCLOS, Art. 240.
86
Zedalis (1979) 18.
87
Report LC 30/16 (2008) 20, para. 4.6; Dec. IX/16 (2008), section C, para. 4.
88
G.A. Res. 62/215, U.N. Doc. A/RES/62/215 (Dec, 2007) 18, para. 98.
89
UNCLOS, Art. 238.
90
Ibid, Art. 246.
91
Ibid, Art.240 (c).
92
See G.A. Res. 1803 (1962)
93
UNCLOS, Art. 193; Schrijv (2008) 212.
94
Hofbauer (2009) 72.
14
Regarding referral of Applicant to Articles 64 and 65 of UNCLOS, Respondent
considers it groundless. Rinnuco`s economic sector, in comparison with Aeolia, is not
connected with narwhals95. Rinnuco does not fish for highly migratory species and the OFP has
no purpose to influence the narwhals96. What is more, Respondent highlights that the OFP has
non-commercial purposes97. Consequently, it is not connected with the articles claimed.
Taking into consideration that Rinnuco`s OFP project should be regarded as a SMR and
satisfies the criteria of UNCLOS, it should be treated as legitimate.
1.2 OFP project is legitimate for the purposes of LC-LP
Respondent notes that as a party to LC and LP Rinnuco was developing the OFP in strict
accordance withprovisions of these documents. LC and LP should be considered as a
specialized act on issues of OF98. It is presumed that OF can be conducted only as a legitimate
scientific research according to the purposes of LC-LP99.
The assessment of effects is considered an obligatory preliminary part of any SMR
connected with the placement of matters 100 and especially for OFPs 101 .Rinnuco not only
conducted an ‘extensive EIA102’, however also developed a special effective mechanism of
monitoring and control. According to this mechanism,all the project is divided into several
stages for several years. Such division gives an ability to control the condition of the marine
95
Record, para.1, 2.
96
Ibid, para. 12.
97
Ibid.
98
Resolution.LC-LP.1(2008), para.1; Note by IMO (2008), para. 3.2.
99
Resolution LC-LP.2 (2010), para. 3.
100
UNCLOS, Art. 204(2) 206.
101
Resolution LC-LP.2 (2010), para.3; Resolution.LC-LP.1 (2008), para. 4,
102
Record, para. 12.
15
environment, get broader scientific results and perform the precautionary principle and duty not
to cause transboundary harm.
To provide for legitimate SMR under LC-LP, “such research should be regarded as
placement of matter for a purpose other than the mere disposal thereof under Article III
(1)(b)(ii) of the LC and Article 1(4)(2)(2) of the LP”103. As it was already argued that OFP is a
legitimate SMR, thus pursuant to LC104 and LP105 OF is excluded from the concept of dumping
and pollution.
To summarize abovementioned, the fact that OF as a phenomenon cannot be regarded
as pollution or dumping, Rinnuco did not breach rules of UNCLOS, LC-LP and other acts,
governing pollution and dumping.
Respondent argues that a project started by Rinnuco is in consistency with LC-LP
provisions in a whole. Under joint statement of the Scientific Group of the LC and LC, it was
recommended a careful evaluation of every ocean fertilization project to ensure that it is not
contrary to the aim of the Convention and Protocol106. Furthermore, the Parties permitted all
legitimate scientific research activities on ocean fertilization by regarding them not contrary to
the aim of the LC and LP107. Thus, since the Rinnuco`s OFP is a legitimate SMR and it meets
the requirements of LC and LP, it has to be treated as the one, which is allowed for the purposes
of the treaties.
103
Resolution.LC-LP.1 (2008), para. 3.
104
London Convention (1972), Art, III (1)(b).
105
London Protocol (1996), Art.1(4)(2),1(9).
106
Statement of concern (2007), p. 1.
107
Annex VI, Res. LC-LP.1 (2008).
16
Also, there are established demands for OFPs, including a prohibition of large-scale
projects108and conduct of commercial-aimed109 OFPs especially in non-coastal (not controlled
by the state) waters 110 . Respondent states that these requirements are also performed by
Rinnuco. Despite the planned total duration of the project 111 and total amount of substances to
be disposed112 the project cannot be characterized as a large scale because of its division into
phases for control of the result of each of them and due to absence of characteristics of the term
‘large-scale’, which can be applied to OFPs113. In spite of the absence of obligation to conduct
OFPs only in coastal waters 114 , Rinnuco still decided to follow the COP of CBD
recommendations in order to be able to exercise enough authority and to provide control over
all the processesand to the conduct the project in its EEZ, since in EEZ states exercise
“jurisdiction…as regards to…SMR”115.
To summarize the abovementioned, Rinnuco performed all the duties and even
recommendations, which arise during conduct of such a specific type of SMR as OFP, thus it
is legitimate for the purpose of LC-LP.
2. RINNUCO DID NOT BREACH THE PRECAUTIONARY APPROACH AND NOHARM PRINCIPLE DURING THE SMR (OFP)
2.1.Rinnuco performed all precautionary requirements
108
Dec. IX/16 (2008), section C; Note by IMO (2008) 15, para. 3.1; Rayfuse et al. (2008) 298-299; Dean (2009)
341.
109
Dec. IX/16 (2008), section C, para. 4; Warner & Schofield (2012) 253.
110
A compilation of recent international statements, UNEP (2008) 3.
111
Ocean fertilization Scientific Summary IOC/UNESCO (2010) 14.
112
Record, para. 15.
113
UNESCO/IOC Statement (2008), p. 2.
114
Ibid, p. 3, para. 2.
115
UNCLOS, Art. 56(i)(b)(2)
17
Article 206 of UNCLOS read together with Article 14 of CBD support the states to
conduct EIA, if the project is likely “to have significant adverse effects on biological
diversity”116 to prevent any negative changes of the marine environment 117. The obligation ‘to
protect and preserve’, which exists in international law, was confirmed by this Court118.EIA is
viewed as a tool of performing this obligation and is necessary to be held in case of possibility
of significant impact on marine environment119.
Respondent as a coastal state, which economic situation is closely connected with the
marine environment and marine biodiversity, is interested in conducting the effective EIA.
Also, Rinnuco was performing its obligations and as environmentally friendlystate was
following the recommendations in the sphere of OF. Respondent informed Applicant about the
plan of the project120 pursuant to Article 205 of UNCLOS121. Thus it is possible to conclude
that Rinnuco performed its obligations concerning prevention of risk through taking all the
necessary steps.
However, Aeolia claims that Rinnuco breached a customary norm of international law
– the precautionary principle. Respondent objects to this and provides the following arguments.
Firstly, it is disputable whether precautionary principle can be considered a customary
norm of international law 122 , what is supported by the Court 123 .Secondly, Rio Declaration,
116
CBD, Art. 14.
117
UNCLOS, Art. 206.
118
Pulp Mills(2010) 18-19; Navigational and Related Rights (2009), para. 64.
119
Activities in the Area (2011), para. 145.
120
Record, para. 13.
121
UNCLOS, Art. 205.
122
Unger (2001) 638.
Nuclear Tests (1974), at 63; Gabčíkovo-Nagymaros(1997), at 113.
123
18
which refers to precautionary approach124, is a piece of ‘soft law’, which is non-binding one125.
Consequently, there is no clear legal basis of ‘precautionary approach’126. Rinnuco could not
breach, what does not exist in a form of an obligation for it.
Even if the Court considers that precautionary approach can serve as a customary norm
and creates obligations for Rinnuco in another way, Respondent has still performed all duties
pursuant to UNCLOS and CBD.
2.2.Rinnuco did not cause transboundary harm
Principle not to cause transboundary harm as a norm of customary international law127
and as an obligation arising also under UNCLOS 128 and CBD 129 , enlisted in Stockholm130
Declaration, UNFCCC131 demands the states to conduct actions under their jurisdiction in such
manner not to cause damage to other states. The principle is reinforced by numerous judicial
practice of different judicial institutions including this Court132.Respondent argues that there
was no breach of this principle because Applicant failed to meet the ‘clear and convincing
evidence’ standard that was firstly applied in Trail Smelter case. The standard (rule, principle)
demands the presence of a connection between actions and serious consequence and the injury
124
Rio Declaration(1992), principle 15.
125
Shaw (2008) 117.
126
Brownlie (1973) 277-278.
127
Birnie (2002), p.
128
UNCLOS, para.2, Art. 194.
129
CBD, Art. 3.
130
Stockholm Declaration (1972), Principle 21.
131
UNFCCC (1992), recital 8 of Preamble.
Nuclear Weapons (1996), at 26, para.229; Gabčíkovo-Nagymaros (1997), at 41, para.53; Pulp Mills (2010), at
132
38, para. 101.
19
in or on the territory of another state133. Respondent argues that there is neither any connection
between the incident of 22 April 2015 because Rinnuco took all the necessary preventive
measure, nor this connection was shown by the Applicant. As an opponent of the project, Aeolia
used the death of narwhals to make Rinnuco stop the OFP. The fact that narwhals are regarded
as migratory species 134 taken together with the information concerning the place of their
detection135 and geographical characteristics of Muktuk Ocean136, can bring to the conclusion
that death of mammals could have been caused by Aeolia. What is more, an ecological situation
of Aeolia does not meet international standards137, what can also have an influence on its natural
resources. However there is no clear information about the result of the death of mammals138,
thus it is not possible to make any statements including presumptions and use them as a basis
for a claim. Due to the absence of evidence Respondent states that it did not cause
transboundary harm.
What is more, since there is no breach by Rinnuco of duty not to cause transboundary
harm, no facts that OFP has caused some damage to narwhals or other species Respondent
states that there was no breach of provisions of CMS or CBD. The fourth aim of the project, to
stimulate fish production139, is a consequence of ocean fertilization140. The development of fish
production is in consistency of the aims and principles of both these acts.
133
Trail smelter, at 1965.
134
CMS Appendix II (1979), p. 6.
135
Record, para. 20.
136
Ibid, paras.1, 3
137
Ibid, para. 10.
138
Ibid, para. 20.
139
Ibid, para. 12.
140
Buesseler et al. (2008), p. 53; Van den Brink (2011) 7-11.
20
To summarize stated above, Rinnuco did not breach such claimed norms of customary
international law as precautionary and no-harm principles.
3. OFP has to be treated as a mean of performance of Doha Amendments
Rinnuco is a state that actively participates in solving the GHG issues. The positive
experience of implementation of Kyoto Protocol 141 let the country to take on the new
obligations in the sphere. Respondent argues that OPF which was elaborated by Rinnuco is a
tool for implementation of obligations arising pursuant to Doha Amendments to Kyoto
Protocol. By claiming this Respondent relies upon the following arguments.
3.1. Doha Amendment can be applied in marine environment
Doha Amendment is an act establishing the second commitment period of the Kyoto
Protocol142. Thus as part of the Protocol, it is guided by the same principles as the Protocol
itself. Relying on the rules of interpretation of a treaty143, Respondent states that Kyoto Protocol
can be applied in the marine environment. Despite Kyoto Protocol regulates issues concerning
reduction of GHGs in land-use and forestry activities144, it still functions according to the aims
and principles of the main document – the UNFCCC145. It is adopted for the implementation of
this document. UNFCCC contains an obligation of State Parties to “Promote sustainable
management, and promote and cooperate in the conservation and enhancement, as appropriate,
of sinks and reservoirs of all greenhouse gases… including … oceans as well as other terrestrial,
coastal and marine ecosystems”146. The Convention also mentions the importance and necessity
141
Ibid, para. 10.
142
Letter (2013) 1.
143
VCLT, Art. 31.
144
Kyoto Protocol (1998), Art.3(3).
145
Ibid, Preamble.
146
UNFCCC, Art. 4(1)(d).
21
of use of the marine environment for fighting GHGs in Preamble. Thus, since the UNFCCC as
the main act regulates the usage of marine ecosystems, all the substituting documents, including
the Protocol and Doha Amendment, are covered by these basic provisions.
3.2. OF is a type of a sink of GHG for the purpose of the UNFCCC
UNFCCC considers as legitimate the use of different sinks, usage of which is not
contrary to other international obligations of the parties. Respondent states that OFP of Rinnuco
satisfies the definition, provided by UNFCCC. For the purpose of the Convention, sink is any
“process, activity or mechanism which removes a greenhouse gas, an aerosol or a precursor
of a greenhouse gas from the atmosphere”147. OF, as one of the geoengineering methods, tends
to increase the rate of transfer of carbon dioxide into the deep sea by manipulating the ocean
carbon dioxide cycle148.Algae and microscopic plants absorb carbon dioxide. And consequently
“…deep-sea bacteria consume the algae and by their respiration release the carbon dioxide into
the deep ocean. This surface absorption of carbon dioxide followed by its release in deep waters,
functions as a ‘biological pump’ which removes carbon dioxide from the atmosphere.The
application of carbon dioxide removal is especially beneficial in combination with GHG
emission reductions…” 149 , what is exactly done by Rinnuco. In result of analysis of the
mechanism of OF, it is clear that it falls within the definition of a sink for the purpose of
UNFCCC.
As OF is in consistency with the definition of ‘sink’ pursuant to UNFCCC, the project
of Rinnuco is a legitimate tool for performing the obligations.
147
Ibid, Art. 1(8).
148
Shepherd et al. (2009), p. 16.
149
Van den Brink (2011), p. 7.
22
CONCLUSION AND PRAYER
In light of the above, the Republic of Rinnuco requests this Honourable Court to adjudge
and declare that:
1. the ICJ does not have jurisdiction to determine the matter;
2. Rinnuco has not violated international law with respect to its OFP.
Respectfully Submitted
Agents for the Republic of Rinnuco