IN THE ICJ AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

CASE CONCERNING OCEAN FERTILIZATION

FEDERAL STATE OF AEOLIA

V

REPUBLIC OF RINNUCO

MEMORIAL FOR THE APPLICANT

2016 STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT

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Table of Contents

LIST OF ABBREVIATIONS AND ACRONYMS ...................................................................................... 3

INDEX OF AUTHORITIES ......................................................................................................................... 4

CASES ........................................................................................................................................................ 4

CONVENTIONS ...................................................................................................................................... 4

BOOKS ..................................................................................................................................................... 5

STATEMENT OF JURISDICTION ............................................................................................................. 6

QUESTIONS PRESENTED ......................................................................................................................... 7

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

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

ARGUMENTS ............................................................................................................................................ 12

THAT THE COURT HAS JURISDICTION TO HEAR THE MATTER ............................................. 12

THAT RINNUCO IS IN VIOLATION OF INTERNATIONAL LAW................................................. 15

RINNUCO IS IN BREACH OF THE PRECAUTIONARY PRINCIPLE ......................................... 15

RINNUCO IS IN BREACH OF THE DUTY NOT TO CAUSE TRANSBOUNDARY HARM ..... 17

RINNUCO IS IN BREACH OF THE FOLLOWING TREATY PROVISIONS ............................... 19

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

PRAYERS .................................................................................................................................................. 28

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LIST OF ABBREVIATIONS AND ACRONYMS

UNCLOS –UNITED NATIONS CONVENTION ON THE LAW OF THE SEA

CBD- CONVENTION ON BIOLOGICAL DIVERSITY

ICJ-INTERNATIONAL COURT OF JUSTICE

LC –LONDON CONVENTION

LP – LONDON PROTOCOL

UNFCCC – UNITED NATION FRAMEWORK CONVENTION ON CLIMATE CHANGE

CMS –CONVENTION ON CONSERVATION OF MIGRATORY SPECIES OF WILD

ANIMALS

INDC –INTENDED NATIONALLY DETERMINED CONTRIBUTION

EEZ- EXCLUSIVE ECONOMIC ZONE

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INDEX OF AUTHORITIES

CASES Corfu Channel Case ICJ Reports (1949) 18-22

Case Concerning Certain Phosphate Lands in Nauru

(Nauru v. Australia) [1992] ICJ Rep 240

Southern Bluefin Tuna Case29 ILM 1359(2000)

Lake Lanoux Arbitration (1957) ILR 101

Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 35)

Libya/Chad of 3 Feb. 1994 [1994] ICJ Rep 6

Nicaragua V United States ICJ Reports (1986)

Trail Smelter Case (1940) 3 RIAA 1905

CONVENTIONS

1996 Protocol To The Convention On Marine Pollution By Dumping Waste And Other

Matter ,Convention On Biological Diversity 1992

Convention On The Prevention Of Marine Pollution By Dumping Waste And Other

Matter 1996

Convention on The Conservation Of Migratory Species Of Wild Animals

Decisions Adopted By The Conference Of The Parties To The Convention On Bio Diversity At

Its Ninth Meeting

Doha Amendment To Kyoto Protocol United Nations Convention On The Law Of The Sea

1992

Kyoto Protocol (United Nations Framework Convention On Climate Change) 1997

London Protocol 1972

Paris Agreement 2015

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Rio Declaration 1992

Stockholm Declaration 1972

United Nations Framework Convention On Climate Change 1992

United Nations General Assembly Resolution

Vienna Convention 1969

BOOKS

Principles of international environmental law by Sands, Philippe

Kidd, M Environmental Law

Jane, H Environmental Protection Law and Policy 2nd Ed.

Birnie, PW International Law and the Environment (2002)

Sands, P International Law and the Environment (2002)

Birnie, P International law & the environment 3rd edition (2009)

Environmental law by Bell, Stuart

Environmental law by Thornton, Justine.

Elli Louka ,International Environmental Law (2006)

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STATEMENT OF JURISDICTION

The Federal States of Aeolia and Republic of Rinnuco , hereby submit the present dispute to the

International Court of Justice (“I.C.J.”) pursuant to Article 40(1) of the Court’s Statute, in

accordance with the Compromise for submission to the I.C.J. of the differences concerning the

Court’s Jurisdiction and Ocean Fertilization carried out by the State of Rinnuco.

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QUESTIONS PRESENTED

i) Whether the Court has jurisdiction to hear this matter in light of the various treaties

and conventions, entered into between the parties and the general rules of

international law.

ii) Whether, if the Court has Jurisdiction, the actions of the Republic of Rinnuco are in

violation of International Environmental Law.

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STATEMENT OF FACTS

Aeolia and Rinnuco are two neighboring, developed and highly industrialized states that share

the Muktuk Ocean which supports their fishing industries and Aeolia’s large ecotourism sector.

They have a similar marine biodiversity and Aeolia’s ecotourism sector thrives largely because

of the presence of Narwhales in Muktuk Ocean as whale watching is a huge tourism attraction

for tourists to Aeolia. Aeolia has also set up a research facility called Nauritus Research Institute

that particularly studies narwhales.

On 21st November 2014, after conducting an extensive environmental impact assessment, the

Government of Rinnuco announced its plans to engage in an ocean fertilization project that it

hoped would stimulate the growth of phytoplankton blooms in the Muktuk Ocean.

Rinnuco’s stated purposes for the project was to (1) conduct rigorous scientific research on the

short- and long-term benefits of ocean fertilization; (2) mitigate climate change; (3) generate

potential carbon offsets that Rinnuco might use to meet emission reduction targets or

commitments; and (4) stimulate fish production

Rinnuco notified Aeolia about the planned ocean fertilization project, and on 2nd December

2014 Aeolia sent a diplomatic note raising concern over the project stating that: the effects of

ocean fertilization, particularly ocean fertilization of this scale, are largely unknown, and this

project could be disastrous for the marine environment in and around the Muktuk Ocean, that a

proliferation of phytoplankton could disrupt predator-prey relationships and affect numerous

species of fauna and flora. In particular, Aeolia and its citizens are concerned about the potential

effects of Rinnuco’s ocean fertilization project on the narwhals and other cetaceans and fish in

the Muktuk Ocean and that the project could adversely impact the economies of both Rinnuco

and Aeolia. Aeolia urged Rinnuco to act in accordance with the precautionary principle and

abandon this planned ocean fertilization project.

On 5th December 2014 the government responded to this through a diplomatic note stating that it

appreciates the concerns of the Government of Aeolia, but Rinnuco will proceed with its ocean

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fertilization project as planned because it had conducted an extensive environmental impact

assessment before planning this project. And further stated that the ocean fertilization project

has many possible benefits, including, inter alia, carbon sequestration, which could benefit the

marine environment and biodiversity by mitigating the effects of climate change.

On 15th December 2014, the Rinnuco legislature passed a law approving and fully funding the

planned ocean fertilization project that would occur in phases, each later phase being larger than

the previous one.

Despite Aeolia’s persistent pleas that Rinnuco reconsiders the project on 5 January 2015, one of

Rinnuco’s government research vessels, the Stanlee began depositing powdered ferrous sulfate

approximately 175 miles off the coast of Rinnuco.

On 6th January 2015, the Government of Aeolia sent a diplomatic note to the Government of

Rinnuco urging them to reconsider the project as it may have a negative impact on Muktuk

Ocean which is a shared resource. It further asserted that Rinnuco was in violation of

International Law and that they should meet and discuss the matter and hopefully get other

possible options.

On 22nd January 2015, the Government of Rinnuco sent a diplomatic note to the Government of

Aeolia stating that it had not violated any international law, but in the spirit of cooperation it

would temporarily suspend its ocean fertilization project once the initial phase was complete

and would continue to engage in diplomatic discussions with Aeolia, but may resume the project

at their discretion.

On 13th February 2015 ,the government of Rinnuco temporarily suspended its ocean

fertilization project after the Stanlee had completed the initial phase and deposited all of

the planned 15,000kg of ferrous sulfate . However ,Rinnuco was not able to make any

final determinations about the results from the project and said that it would continue

with the process of collecting and analyzing data from initial phase of the project.

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

Aeolia’s Nautilus Research Institute conducted necropsies, but the results were inconclusive as

to what caused the narwhals to die.

On 4 May 2015, the Government of Aeolia sent a diplomatic note to the Government of Rinnuco

that stated in part that the unfortunate recent deaths of the nine narwhals further emphasize the

importance of Rinnuco abandoning its ocean fertilization project.

On 18 May 2015, the Government of Rinnuco sent a diplomatic note to the Government of

Aeolia that stated in part that while the deaths of the nine narwhals were certainly unfortunate,

there was nothing to suggest that these deaths were in any way related to Rinnuco’s ocean

fertilization project and that Rinnuco planned on resuming on its ocean fertilization project

within the next year.

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

conducted between the Federal States of Aeolia and the Republic of Rinnuco, but the process

failed to resolve the dispute regarding Rinnuco’s ocean fertilization project and in March 2016,

Aeolia requested that Rinnuco agree to submit the matter to the ICJ in accordance with Article

287 of UNCLOS, but Rinnuco refused.

Aeolia submitted an Application instituting proceedings against the Republic of Rinnuco, dated 4

April 2016 (Annex B), and Rinnuco submitted a Preliminary Objection, dated 10 May 2016,

contesting the ICJ’s jurisdiction over the matter

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SUMMARY OF ARGUMENTS

1. The Court has jurisdiction over this dispute in accordance with Article 27 of the CBD, as well

as Article 287 of UNCLOS. The dispute arises directly under the CBD and UNCLOS since

several CBD Decisions relate directly to ocean fertilization, and UNCLOS explicitly addresses

ocean dumping and the conservation of the marine environment.

2.Secondly, that Rinnuco’s ocean fertilization project in the Muktuk Ocean is in breach of its

obligations under international law, including, but not limited to, violations of several

multilateral environmental agreements such as the 1996 Protocol to the Convention on the

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

Protocol), the Convention on Biological Diversity (CBD), the United Nations Convention on the

Law of the Sea (UNCLOS), and the Convention on Migratory Species of Wild Animals (CMS).

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ARGUMENTS

THAT THE COURT HAS JURISDICTION TO HEAR THE MATTER

The court herein has Jurisdiction to hear the matter which it derives from the following;

Article 36(1) of the Statute of the ICJ which states that “The jurisdiction of the Court

comprises all cases which the parties refer to it and all matters specially provided for in

the Charter of the United Nations”

1. The parties have referred to the ICJ as a recourse for dispute resolution under: Article

27 of the 1992 Convention on Biodiversity hereafter referred to as the CBD which

provides that “In the event of a dispute between Contracting Parties concerning the

interpretation or application of this Convention, the parties concerned shall seek

solution by negotiation… If the parties concerned cannot reach agreement by

negotiation, they may jointly seek the good offices of, or request mediation by, a third

party…a dispute not resolved in accordance with paragraph 1or paragraph 2 above, it

accepts one or both of the following means of dispute settlement as

compu1sory…Arbitration..” or “..Submission of the dispute to the International Court

of Justice.”

When Aeolia and Rinnuco ratified the CBD ,both countries declared in writing

that they would submit to the jurisdiction of the ICJ to resolve disputes

concerning the interpretation or application of the CBD. It is therefore

undisputable about the jurisdiction of ICJ in this matter. This position can be

supported by the Land, Island, and Maritime Frontier Dispute (El

Salvador/Honduras; Nicaragua Intervening)1 case where the court herein derived its

jurisdictional basis from a special agreement entered into by Honduras and El

Salvador in 1986. The written declarations by both Aeolia and Rinnuco herein also

serves as a special agreement from which the court should derive jurisdiction.

1 Land, Island, and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 351; Schulte, supra note 15, at 214–215.

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2. The parties have also referred to the ICJ under Article 287 of the UNCLOS which

provides that the ICJ has jurisdiction over disputes concerning interpretation or

application of the convention. Both states are parties to this convention and

when signing and ratifying UNCLOS both made a written declaration pursuant

to article 287 paragraph 1(b) choosing the ICJ to handle the case. Article 287

of the UNCLOS provides that “When signing, ratifying or acceding to this

Convention or at any time thereafter, a State shall be free to choose, by

means of a written declaration, one or more of the following means for the

settlement of disputes concerning the interpretation or application of this

Convention.” Section 1b of the same provides the The international court of justice

as a possible avenue to solve the dispute and pursuant to their written declarations

to submit the case to the ICJ to handle the dispute the parties have thereby

accepted the Court’s Jurisdiction to hear this matter. In the matter above which

regards Narwhales which are part of the biological diversity of the Muktuk Ocean the

parties have already exploited the avenues of negotiation and mediation

unsuccessfully hence it is now permissible for them to seek to solve the dispute in the

ICJ.

However, as the case stands Rinnuco submitted a notice of revocation on 28th

March 2016 to the secretary general , pursuant to Article 287 paragraph 6

which makes provision on revocation and provides that “ a declaration made

under paragraph 1 shall remain in force until three months after notice of

revocation has been deposited with the Secretary-General of the United

Nations.’’ The application instituting proceedings was made on 4th April 2016,

it is therefore evident that three months have not yet lapsed and their written

declarations thereby still have effect and grant the ICJ jurisdiction to hear this

dispute.

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3. That the Court also derives Jurisdiction from Article 14(2) of the 1992 Climate

Convention to which both Aeolia and Rinnuco are parties to which provides that “…a

party……..may declare in a written instrument submitted to the depository that in

respect of any dispute concerning the interpretation or application of the convention,

it recognizes the court’s jurisdiction as compulsory ipso facto and without special

agreement in relation to any party accepting the same obligation. (A) Submission of

the dispute to the International Court of Justice…” Both Aeolia and Rinnuco herein

submitted the declarations providing that under this article they recognize the

jurisdiction of the ICJ as compulsory as regards to any dispute between them as under

the ambit of this convention. The dispute regards the application of principle 3 under

Article 3 of this convention which is the precautionary principle and therefore this

matter falls under the ambit of this convention and the ICJ has the Jurisdiction to

entertain it

To support this argument is the case of Libya V Chad 2 where both parties had signed

a framework agreement on the peaceful settlement of the territorial dispute. The

parties undertook to submit the dispute to the ICJ in the absence of political

settlement within a period of approximately one year and on that basis, the ICJ drew

Jurisdiction. Similarly in the present case the ICJ can draw its jurisdiction from the

undertaking of the parties to submit any dispute under the UNFCCC to the ICJ

4. Further the Court’s Jurisdiction is affirmed by the Kyoto Protocol to which both

states are members which provides that the dispute resolution mechanism provided

under Article 14 of the UNFCC shall. apply mutatis mutandis which means that

pursuant to the parties written declaration under the UNFCC regarding jurisdiction

the court herein has jurisdiction over the matter.

2 Libya/Chad of 3 Feb. 1994 [1994] ICJ Rep 6 at paras 17, 19–21.

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THAT RINNUCO IS IN VIOLATION OF INTERNATIONAL LAW

RINNUCO IS IN BREACH OF THE PRECAUTIONARY PRINCIPLE

5. That Rinnuco is in breach of the Precautionary principle which is a general principle

of international law. The principle is defined under the Principle 15 of the Rio

Declaration which then provides that where there threats of serious or irreversible

damage, lack of full scientific certainty shall not be used as a reason of postponing

cost-effective measures to prevent environmental degradation.

Further, Article 3(3) of the 1992 United Nations Framework convention on

Climate Change provides that “3….parties are to take precautionary measures to,

inter alia, mitigate the adverse effects of climate change, and lack of scientific

certainty should not be used as a reason for postponing such measures.

Rinnuco by failing to stop the ocean fertilization project on account of there being no

scientific certainty as to it having caused the death of the 9 Narwhales, is in violation

of this principle. The position of this principle in International Law was reasserted by

the International Tribunal on the Law of the Sea in the 2001 MOX case4between

Ireland and the United Kingdom at Par 34 of the Judgment in which the Judges stated

that “… the precautionary principle is a rule of customary international law which is

binding to the United Kingdom and relevant to the assessment of the United

Kingdom’s actions by reference to [UNCLOS]…”

Further the Corfu Channel Case5suggests that it also arises when there is a known

risk to other states. In general, however, foreseeability of harm, in the sense of an

objectively determined risk, will usually be sufficient to engage the state’s duty of

regulation and control. Therefore the risk to Aeolia is an objectively determined risk

since ocean water is not static and it flows in between the territories of Aeolia and

Rinnuco and Aeolia’s apprehension is warranted because the ferrous sulphate from

Rinnuco’s ocean fertilization project is bound to flow into Aeolia’s territory and

affect its sea creatures including the Narwhales.

3www.int-res.com/articles/theme/m364p227.pdf ( pg. 230) ( accessed on 11/11/2016) 4 Order of 3 December 2001 5 ICJ Reports (1949) 18-22

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Further the International Tribunal of the Law of the Sea in the Southern Bluefin

Tuna Case6 supported the precautionary approach by stating that the fact that one

couldn’t conclusively assess scientific evidence regarding provisional measures

sought by New Zealand did not oust the fact that action should be taken as a

measure of urgency to avert further deterioration of the Tuna Stock. Likewise

herein the Rinnuco is in breach of this principle by not taking action to stop its

Ocean Fertilization project which might cause a deterioration of the state of

cetaceans in Muktuk Ocean.

6. That Rinnuco is in violation of its obligations under Article 3 of The 1996 Protocol

To The Convention On The Prevention Of Marine Pollution By Dumping Of

Wastes And Other Matter which states that “….Contracting Parties shall apply a

precautionary approach to environmental protection from dumping of wastes or other

matter whereby appropriate preventative measures are taken when there is reason to

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

to cause harm even when there is no conclusive evidence to prove a causal relation

between inputs and their effects.” By putting the ferrous Sulphate in Muktuk Ocean,

Rinnuco is in breach of this provision because the ferrous sulphate contains iron

which may affect the food web by causing a change in the make-up of the cetaceans

in the two lowest levels of the food chain which stimulates them into a race to

capitalize on the resources of sunlight and nutrients which in turn creates a scenario

where other factors such as nutrient levels and preexisting populations of planktons

could cause the number of these organisms terribly which causes a subsequent

negative effect on the secondary and tertiary members of the chain by reducing their

food supply and ipso facto their number.

Further Rinnuco is in breach of its obligation under Article 3(1) of the Protocol which

provides that the application of a precautionary approach to environmental protection

is included as a general obligation.

6 29 ILM 1359(2000)

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RINNUCO IS IN BREACH OF THE DUTY NOT TO CAUSE TRANSBOUNDARY

HARM

7. That Rinnuco is in breach of the duty not to cause transboundary harm which forms

part of International Customary Law together with the principle of sic utere tuo, ut

alienum non laedas(principles of good neighborliness).Rinnuco by conducting the

Ocean Fertilization Project which involves the depositing of ferrous sulphate amongst

other harmful substances to Muktuk Ocean is in breach of this principle because

Muktuk Ocean is a shared resource and the substances are likely to flow to Aeolia’s

part of the Ocean and harm their marine animals including the Narwhales, 9 of which

have already died in a manner that suggests the Ocean Fertilization as a probable

cause of their death. This will cause harm not only to Aeolia’s Biodiversity but also

to its economy as it is highly reliant on ecotourism which arises from the presence of

Narwhales in its territorial waters. These impacts are not confined to any one national

jurisdiction, such that activities occurring in one jurisdiction can result in impacts in

another, or impacts in one jurisdiction can be transported to another. 7

8. This Principle was reasserted in the Trail Smelter Case8 where the tribunal held that

“Under the principles of International Law… no state has the right to use or permit

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

of another or the properties or persons therein, when the case is of serious

consequence…”

And although this passage relates specifically to atmospheric emissions, it is clear

that it may be applied equally to other forms of pulling activity.

Thus in the present context a state may well be under an obligation arising from

customary law to ensure that its activities are not such as will cause water pollution to

adversely affect another state.9

7 www.law.mq.edu.au/public/download.jsp?id=170874 (pg. 42)(accessed on 11 /11/2016) 8 (1940) 3 RIAA 1905 9 Lake Lanoux Arbitration (1957) ILR 101

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This was further re-asserted by the ICJ in its Advisory Opinion on the Legality of the

Threat of Nuclear Weapons 10where it stated that “The existence of the general

obligation of states to ensure that activities within their jurisdiction and control

respect the environment of other states or of areas beyond national control is now part

of the corpus of international law relating to then environment.”11

Further as indicated by the court in Nicaragua V United States (Merits), customary

international law continues to exist and apply even where it is identical in content to

international treaty law which therefore means that the presence of treaty law on this

matter does not prejudice the application of customary international law and vice

versa.

Further ,provided under principle 2 of Rio declaration as an articulation of

principle 21 Stockholm it reaffirms sovereignty of states over their natural

resources .Its repeated in the principle that states have the responsibility to

ensure that activities within their jurisdiction and control do not cause damage

to the environment of other states or of areas beyond limits of national

jurisdiction12.13The obligation to prevent transboundary harm requires the state to

exercise due diligence.14

9 .That Rinnuco is in breach of the Precautionary principle under Article

10(6) of the 2000 Cartagena Protocol on Biosafety which was/is premised

on the 1992 Convention on Biodiversity which provides that “ In accordance

with the precautionary approach contained in Principle 15 of the Rio

10Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 22, [29]; Case Concerning the Gabcikovo-Nagymaros Project (Hungary v. Slovakia) (Judgement), [1997] ICJ Rep 7, [53]; Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgement), [2010] ICJ Rep 14, [193]; as cited in CBD Technical Series No. 66, above n 3, 115. 11 ICJ Reports (1996) 226, para 29 [ ‘Nuclear Weapons AO’] 12 Rio Declaration on Environment and Development, UN Doc A/CONF151/26 (vol. I) (14 June 1992) annex I (‘Rio Declaration’), principle 2; Convention on Biological Diversity, opened for signature 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993), art 3 (‘CBD’) 13 www.law.mq.edu.au/public/download.jsp?id=170874(accessed on 11/11/2016) pg. 46 ,47 14 International Law Commission, ‘Draft articles on prevention of transboundary harm from hazardous activities’, UN Doc. A/56/10, [98], Article 3 [8]. For a good overview of the requirements for attributing responsibility for transboundary harm, see CBD Technical Series No. 66, above n 3, 114-5.

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Declaration on Environment and Development, the objective of this protocol

is to contribute to ensuring an adequate level of protection in the field of the

safe transfer and use of biological diversity, taking also into account risks to

human health, and specifically focusing on Transboundary movements.’’

And thus the protocol advises safe transfer of LMOs so as not to cause

Transboundary harm to other states with due consideration to be given to the

Precautionary Approach, Rinnucco has not acted in line with this principle as

although not conclusive there is a scientific likelihood that their actions with

regard to the deliberate dumping of hazardous ferrous sulphate into the

Muktuk Ocean did cause the death of Narwhales and there is nothing

stopping the hazardous material from flowing to Aeolia’s side and harming

cetaceans on their part of Muktuk Ocean.

RINNUCO IS IN BREACH OF THE FOLLOWING TREATY PROVISIONS

Article 26 of the Vienna convention enunciates on the principle of pacta sunt

servanda that every treaty in force is binding upon the parties to it and must be performed by

them in good faith. This implies that since Rinnuco is party to various conventions it was

obliged to perform them in good faith.

1. The basic legal framework for the protection and preservation of marine

environment is set out under the UNCLOS , which gives content to the customary

international law obligation binding on all state . To that end, all states are obliged to

take individually and jointly all measures necessary to prevent, reduce and control

pollution of the marine environment, this is envisaged in the articles discussed below.

2. Rinnucos stated that the purpose of the ocean fertilization project was to

conduct scientific research , however, Article 87(f) 15 UNCLOS provides that

marine scientific research has the status of a ‘freedom of the high seas’ and needs to

be conducted with appropriate methods and means compatible with the Convention.

15 www.law.mq.edu.au/public/download.jsp?id=170874 (Accessed on 11/11/2016) pg. 60

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However ,Rinnuco conducted its ocean fertilization project contrary to the

provisions of this act as it was the probable cause of death of the narwhals .

9. That Rinnuco is in breach of Article 192 of the United Nations Convention on the

Law of the Sea herein thereafter referred to as the UNCLOS which provides that

states have the obligation to protect and preserve marine environment.

Rinnucos oceanic fertilization is therefore in contravention of this provision as

it was the possible cause of death of Narwhals which constitute the marine

environment . And that after the death of the narwhals it (Rinnuco) should have

taken measures to prevent greater harm to the marine environment. Instead

Runnico declined to take any measures and even said that it would proceed

with its project regardless.

10. That Rinnuco is in breach of Article 194 (1) of the UNCLOS16 which provides that

“” States shall take, individually or jointly as appropriate, all measures

consistent with this Convention that are necessary to prevent, reduce and

control pollution of the marine environment from any source, using for this

purpose the best practicable means at their disposal and in accordance with

their capabilities, and they shall endeavor to harmonize their policies in this

connection.” Pollution is defined under Article 1(4) as ‘the introduction by man,

directly or indirectly, of substances or energy into the marine environment, including

estuaries, which results or is likely to result in such deleterious effects as harm to

living resources and marine life, hazards to human health, hindrance to marine

activities, including fishing and other legitimate uses of the seas, impairment of

quality for use of sea water and reduction of amenities .In light of this provisions

Rinnucos ocean fertilization project is therefore a form of pollution and thus a

contravention of article 194 . Rinnuco has violated this provision through its

response dated dated 5th December in which it stated that it would continue with the

project despite the concerns that Aeolia had raised with regards to the project thus

failing to play its part in preventing, reducing or otherwise controlling the pollution

16 United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 21 ILM (1982), (entered into force 16 November 1994)

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that was ongoing in Muktuk Ocean by its ocean fertilization project which involved

the deliberate dumping of Ferrous Sulphate into the Ocean surface.

11. That Rinnuco is in breach of Article 194(2) of the UNCLOS which provides that

“States shall take all measures necessary to ensure that activities under their

jurisdiction or control are so conducted as not to cause damage by pollution to other

States and their environment, and that pollution arising from incidents or activities

under their jurisdiction or control does not spread beyond the areas where they

exercise sovereign rights in accordance with this Convention.”

17Ocean fertilization has the potential to have widespread, long-lasting, and

severe impacts on the marine environment, with implications for human health.18 The

risks include changes in biological diversity and possible damage to marine

ecosystems; changes in dominant phytoplankton species; eutrophication (i.e. growth

of unexpected and potentially harmful algal blooms); the creation of anoxic areas, or

dead zones, in the ocean; the formation of toxic materials; decreasing fish stocks due

to nutrient depletion; and the creation and release of greenhouse gases such as nitrous

oxide.19 This implies that ocean fertilization may have adverse effects than

advantages and therefore calling for Rinnuco to abandon it as requested by

Aeolia through a letter dated 2nd December 2014. Rinnucos failure to abandon

the project ,is therefore in contravention of the provisions of this article to take

measure to ensure activities within their jurisdiction don’t cause damage to

other states and their environment. Rinnucos ocean fertilization project was the

most probable cause of Narwhals death which form part of Aeolia’s ecotourism

.

17www.law.mq.edu.au/public/download.jsp?id=170874i (accessed on 11/11/2016) pg. 42

18 International Maritime Organization, ‘International concerns over ocean fertilization receives

unanimous backing from key meeting in London’ (Press Release, 20 November 2012)

<http://www.imo.org/blast/blastData.asp?doc_id=14525&filename=J-14%20Rev.doc>.

19 See variously Mayo-Ramsey, above n 12, 832; Gi-Hoon Hong, ‘Ocean Fertilization’ (Speech delivered

at IMO/HELCOM Regional Workshop for the Promotion of the London Protocol and the Helsinki

Convention, 68 April 2011) < www.imo.org/blast/blastData.asp?doc_id=14055 >; Christine Bertram,

‘Ocean Iron Fertilization in the Context of the Kyoto Protocol and the Post-Kyoto Process’ (Working

Paper No 1523, Kiel Institute for the World Economy, June 2009) 10.

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This is also in line with each state’s duty not to cause Transboundary Harm to

another state. Based on the fact that the Muktuk ocean is a shared resource this

means that the substances deposited by Aeolia in pursuance to its Ocean Fertilization

Project spread over to the geographical boundaries of Aeolia and hence

violating this provision by causing numerous effects to both sides of the ocean

and a possible net negative effect to Aeolia’s economy as the death of narwhales

would harm it’s strong ecotourism sector.

12. That Rinnuco is in violation of Article 207 of the UNCLOS which provides that

states have the obligation “to minimize to the fullest extent possible, the release of

toxic, harmful or noxious substances, especially those which are persistent, into the

marine environment.” The release of Ferrous Sulphate with the intent of enhancing

the Ocean Fertilization Project qualifies as a harmful substance as per the wording of

the above article since it is harmful to Narwhales which are part of marine life.

13. That Rinnuco is in violation of Article 210 (1) provides that States shall adopt laws

and regulations to prevent, reduce and control pollution of the marine environment by

dumping. Dumping is defined under Article 1(5) as ‘any deliberate disposal of wastes

or other matter from vessels, aircraft, platforms or other manmade structures at sea’.

Rinnucos ocean fertilization project therefore falls under the definition of

dumping and is therefore a violation of international laws.

14. That Rinnuco is in breach of Article 210(2) of the UNCLOS which provides that

states shall take other measures other than adopting legislations, as may be

necessary to prevent ,reduce and control such pollution .This requires states to

adopt national laws to prevent and regulate dumping that must be no less

effective than internationally agreed global rules and standards .These rules and

standards are currently found in the LC20 (to which Rinnuco is party ) and the

London Protocol21. Rinnucco is therefore under an international obligation to

20 London convention on the prevention of marine pollution by dumping wastes and other matter. 21 London convention on the prevention of marine pollution by dumping wastes and other matter

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take all measures to conserve the marine environment and its internal actions of

continuing with the Ocean Fertilization project clearly show that it has violated these

provisions.

15. That Rinnuco is in violation of Article 210 (6) of the UNCLOS which provides that

“Dumping within the territorial sea and the exclusive economic zone or onto the

continental shelf shall not be carried out without the express prior approval of the

coastal State, which has the right to permit, regulate and control such dumping after

due consideration of the matter with other States which by reason of their

geographical situation may be adversely affected thereby.” On 5th December

Rinnuco stated that it would proceed with the fertilization project despite

Aeolia’s disapproval. Rinnuco has therefore violated its international obligations

by conducting dumping of oceanic fertilizer without Aeolia’s approval.

16. That Rinnuco, through conducting the ocean fertilization project and dumping ferrous

sulphate which is harmful to cetaceans into Muktuk Ocean is in breach of Article II of

the Convention on the Conservation of Migratory Species which provides that parties

to the convention should take action while paying attention to migratory species

whose conservation status is unfavorable. Narwhales are listed under appendix II of

the Convention as a type of migratory species and the Ocean Fertilization project by

Rinnuco does not pay attention to them as it makes use of substances such as ferrous

sulphate which are likely to harm the narwhales

.

17. That Rinnuco is in breach of Article 235(1) UNCLOS ,which affirms that

states are responsible for the fulfilment of their international obligations

concerning the protection and preservation of the marine environment .The

article goes on to say that they shall be liable in accordance with international

law.

18. That Rinnuco is in breach of Article 238 of the UNCLOS which provides that all

states have a right to conduct marine scientific research irrespective of their

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geographical location subject to the rights and duties of other states as

provided for under the convention .However , from the facts of the case

Rinnuco did not consider the rights of Aeolia as a neighboring state sharing

the same ocean and is therefore in contravention of this article.

19. That Rinnuco is in breach of the 1971 London Dumping Convention in article IV

which provides that dumping of highly hazardous wastes is prohibited except in

emergency situations and after consultations with countries likely to be affected and

with the IMO by using ferrous sulphate which is a hazardous substance. Further

Article III of the same Convention provides the definition of dumping as “… any

deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms, or

other man made creatures at sea…” Runnico using the Vessel called Stanlee

deliberately disposed of Ferrous Sulphate amongst other hazardous material at sea

thereby endangering the cetaceans in Muktuk Ocean.

20. Rinnuco is in violation of Article 3 of the Convention on Biological Diversity

which states that States “in accordance with the Charter of the United Nations and the

principles of international law, the sovereign right to exploit their own resources

pursuant to their own environmental policies, and the responsibility to ensure that

activities within their jurisdiction or control do not cause damage to the environment

of other States or of areas beyond the limits of national jurisdiction.” Rinnuco is in

breach of this provision because it is conducting an ocean fertilization project that is

likely to injure the narwhales on the Aeolian side of the Muktuk Ocean. This ground

is in furtherance of the court’s affirmation of the principle of general international law

that a state which is responsible for the administration of territory is under an

obligation not to bring about changes in the condition of the territory which will cause

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irreparable damage to or substantially prejudice the existing legal interest of another

state in the Case Concerning Phosphate Land In Nauru (Nauru V Australia)22.

Rinnuco is also in violation of Article 8 of the CBD which provides for In situ

conservation giving states an obligation to promote the protection of ecosystems,

natural habitats and the maintenance of viable populations of species in natural

surroundings: Rinnuco’s ocean fertilization project is instead doing the opposite by

harming the cetaceans in Muktuk Ocean through their Ocean Fertilization Project that

involves the depositing of hazardous ferrous sulphate into the ocean. In addition,

Rinnuco is in violation of its obligatory duty under section (h) of the above article to

prevent the introduction of, control or eradicate those alien species which threaten

ecosystems, habitats or species: Herein the ferrous sulphate used during the ocean

fertilization is threatening the cetacean species present in Muktuk Ocean.

Rinnuco is also in violation Article 4(d) of the CBD which provides that “In the case

of imminent or grave danger or damage, originating under its jurisdiction or control,

to biological diversity within the area under jurisdiction of other States or in areas

beyond the limits of national jurisdiction, notify immediately the potentially affected

this States of such danger or damage, as well as initiate action to prevent or minimize

such danger or damage.” This is because its Ocean Fertilization Project is posing an

imminent danger to the cetaceans in Muktuk Ocean and will potentially affect

Aeolia’s cetaceans as well but Rinnuco is not taking any action to minimize the

danger or possible damage.

That further Rinnuco is breach of Decision IX/16 of the which provides that

“...Parties and urges other Governments, to ensure, in

accordance with the precautionary approach, that ocean fertilization activities do not

take place until there is an adequate scientific basis on which to justify such

activities”23 There is no adequate scientific evidence that cogently supports the

benefits of Ocean Fertilization as Rinnuco alleges.

22 (Nauru v. Australia) [1992] ICJ Rep 240 23 Conference of the Parties, Convention on Biological Diversity, Report of the Conference of the Parties to the

Convention on Biological Diversity on the Work of its Ninth Meeting, Held in Bonn from 19 to 30 May 2008,

UNEP/CDB/COP/9/29* (9 October 2008) annex (‘Decisions Adopted by the Conference of the Parties to the

Convention on Biological Diversity at its Ninth Meeting’) decision Decision IX/16, Section C Ocean

Fertilisation see also Decisions Adopted by the Conference of the Parties to the Convention on Biological

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Further Rinnuco is in breach of Decision XI/20 which emphasized that climate

change should primarily be addressed by reducing anthropogenic emissions by

sources and by increasing removals by sinks under the UNFCCC but not through geo-

engineering techniques such as Ocean Fertilization “until there is

an adequate scientific basis on which to justify such activities”24,

21. That Rinnuco is in violation of Principle 8 of the 1972 Stockholm Declaration by

continuing with the ocean fertilization project despite Aeolia’s persistent objections.

Principle 8 states that states should “take all possible steps to prevent pollution of the

seas by substances that are liable to create hazards to human health, to harm living

resources and marine life, to damage amenities or to interfere with other legitimate

uses of the sea.” The Ocean fertilization project involves the use of ferrous sulphate

which is likely to cause to the Marine life in Muktuk Ocean.

22. Article 204 (1)UNCLOS provides that states are required to conduct

environmental assessment test for activities likely to cause harm on the marine

environment. As in line with the provisions of principle 7 Rio declaration ,to

apply environmental impact assessment test for activities likely to have adverse

effects.

That Rinnuco is in violation of paragraph 4 of resolution LC-LP.1 (2008), which

provides that scientific research proposals should be assessed on a case-by-case basis

using the Assessment Framework “to determine, with utmost caution, whether a

proposed activity constitutes legitimate scientific research that is not contrary to the

aims of the Convention or Protocol .Rinnuco did not comply with this provision.

That Rinnuco is in violation of Resolution LC-LP.2 (2010) 25of the London Protocol

as its environmental impact assessment was not in line with the guidelines given

under the above protocol as they have accepted in their diplomatic note dated 22nd

Diversity at its Tenth Meeting’ UN Doc UNEP/CDB/COP/10/27, 24 Decisions Adopted by the Conference of the Parties to the Convention on Biological Diversity at its Ninth

Meeting’ UN Doc UNEP/CDB/COP/10/27 25 On the Assessment Framework for Scientific Research Involving Ocean Fertilisation, Resolution LC-LP 2 (2010) (the thirty-second consultative meeting of the contracting parties to the London Convention and the fifth meeting of the contracting parties to the London Protocol)

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January 2015. In as much as resolutions may not be binding they do give rise to

estoppel and in this case Rinnuco is stopped from denying that they had agreed to a

specific manner in which environmental impact assessments are conducted, which

they have subsequently violated.

23. Rinnucos ocean fertilization project is in violation of the 26UNFCCC which

imposes an obligation on its parties to ‘promote and cooperate in the conservation and

enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases …

including biomass, forests and oceans’ (Article 4[1][d]. Rinnucos ocean fertilization

project does not promote the conservation and enhancement of oceans , since it

was the most probable cause of death of the narwhals .

24. Rinnuco claims under a diplomatic note dated 18th May 2015 that their ocean

fertilization project is in fulfilment of its obligation under INDC in anticipation

of the Paris climate change conference .However ,Rinnuco has signed but not

ratified the Paris agreement . Article 14 of the Vienna convention provides that

consent to be bound by a treaty is expressed by ratification , acceptance or

approval. Rinnuco cannot claim therefore to be acting on the basis of provisions

of a treaty which they have not ratified ,since they are not binding on them .

26 www.int-res.com/articles/theme/m364p227.pdf (accessed on 11/11/2016) pg. 230

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CONCLUSION

PRAYERS

The Federal States of Aeolia seeks an order from the ICJ declaring that

(1) That the ICJ has jurisdiction to determine the matter;

(2) That the Republic of Rinnuco violated international law by conducting the initial phase of its

ocean fertilization project in the Muktuk Ocean and that any re-initiation of this project would

violate international law.

Respectfully submitted

XX

Representatives from the Federal State of Aeolia

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