Team 1714

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

CASE CONCERNING PROTECTION OF SHARED RESOURCES AND DEEP

SEABED MINING

FEDERAL STATES OF ANTHOZOA

(APPLICANT)

V.

REPUBLIC OF RHINOPTERRA

(RESPONDENT)

MEMORIAL FOR APPLICANT

2017
 Memorial for the Applicant

TABLE OF CONTENTS

TABLE OF CONTENTS . 2

INDEX OF AUTHORITIES ... 4

STATEMENT OF JURISDICTION .. 6

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

SUMMARY OF FACTS .. 8

ARGUMENTS ............ 14

I. PRESIDENT IMZA YEBV SHOULD BE HELD RESPONSIBLE FOR

THE DEATHS OF MOTONOANS....14

A. President Imza Yebz is acting jure gestionis pertaining to the Deep Seabed

Mining Project (DSBM Project)...14

B. President Imza Yebz is responsible for the destructive effect of the DSBM

Project on the marine environment of the Eismic Ocean which led to the

deaths of forty Motonoans15

II. THE USE OF SUCTION-LIFT MINING EQUIPMENT OF STI IS

ATTRIBUTABLE TO RHINOPTERRA AND THEREFORE THE STATE

OF ANTHOZOA IS ENTITLED TO COMPENSATION FOR THE

ECONOMIC LOSS SUFFERED...17

III. RHINOPTERRA VIOLATED THE EISMIC AGREEMENT...21

A. Rhinoptera failed to take necessary measures with respect to the conduct of

DSBM project in the Eismic Ocean.22

B. Rhinopterra neglect its duty to protect the environment pursuant to

precautionary approach' indicated in the Eismic Agreement.24

2
 Memorial for the Applicant

IV. THE DSBM PROJECT IS NOT MARINE SCIENTIFIC RESEARCH

BECAUSE IT VIOLATES THE COMMON HERITAGE OF MANKIND

DOCTRINE AND PROVISIONS OF THE CBD 26

A. The DSBM project is not a marine scientific research 26

B. The project is violative of the Heritage of Mankind Doctrine. 27

C. The project also violates provisions of the Convention on Biological

Diversity... 28

CONCLUSION AND PRAYER FOR RELIEF .. 29

3
 Memorial for the Applicant

INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

CHARTER OF UNITED NATIONS

MONTEVIDEO CONVENTION ON THE RIGHTS AND DUTIES OF STATES

2001 DRAFT ARTICLES ON PREVENTION OF TRANSBOUNDARY HARM FROM

HAZARDOUS ACTIVITIES

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

CONVENTION ON BIOLOGICAL DIVERSITY

VIENNA CONVENTION ON THE LAW OF TREATIES

RIO DECLARATION (1992)

UNITED NATIONS CONVENTION ON THE LAWS OF THE SEA

INTERNATIONAL CASES AND ARBITRAL DECISIONS

Saudi Arabia v. Nelson, (91-522), 507 U.S. 349 (1993).

Dunhill vs. Republic of Cuba, (73-1288 ) 425 U.S. 682 (1976)

Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, Advisory Opinion,

I.C.J. 221 (1950).

Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons

and Entities with respect to Activities in the Area, February 1, 2011.

BOOKS AND TREATISES

CRUZ, INTERNATIONAL LAW, 2003 ED.

4
 Memorial for the Applicant

RAHUL SHARMA , DEEP-SEA MINING: ECONOMIC, TECHNICAL,

TECHNOLOGICAL AND ENVIRONMENTAL, CONSIDERATIONS FOR

SUSTAINABLE DEVELOPMENT (vol.45(5) 2011).

ESSAYS, ARTICLES AND JOURNALS

2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N.

Doc. A/56/83 (3 August 2001)

2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts, with

commentaries, U.N. Doc. A/56/10, 53rd Session (23 April-1 June and 2 July-10

August 2001)

Ahnert, A.; Borowski, C., Environmental Risk Assessment of Anthropogenic Activity in the

Deep-Sea" Journal of Aquatic Ecosystem Stress and Recovery, (2000).

INTERNET DOCUMENTS

U.S. Department of State, Marine Scientific Research Authorizations,

https://www.state.gov/e/oes/ocns/opa/rvc/

U.S. Department of State, Marine Scientific Research Authorizations,

https://www.state.gov/e/oes/ocns/opa/rvc/

Taylor, Prue, The Common Heritage of Mankind: A Bold Doctrine Kept Within Strict

Boundaries,

http://wealthofthecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-with

in-strict-boundaries

Understanding the Doctrine of Sovereign Immunity International Law,

5
 Memorial for the Applicant

https://www.lawteacher.net/free-law-essays/international-law/understanding-the-doctrine

-of-sovereign-immunity-international-law-essay.php

STATEMENT OF JURISDICTION

The Federal States of Anthozoa (Applicant) and the Republic of Rhinopterra

(Respondent) submit their dispute to this Honorable Court, pursuant to Article 40,

paragraph 1 of the Statute of the International Court of Justice. On January 03, 2017,

Applicant and Respondent have submitted a copy of the Special Agreement

to the Registrar of the Court. See Special Agreement Between the Federal

States of Anthozoa and the Republic of Rhinopterra for Submission to the

International Court of Justice of Differences Between Them Concerning Questions

Relating to the Protection of Shared Resources and Deep Seabed Mining, signed at

Prague, Czech Republic on January 3, 2017. The Registrar addressed notification to the

parties on January 5, 2017.

6
 Memorial for the Applicant

QUESTIONS PRESENTED

THE FEDERAL STATE OF ANTHOZOA RESPECTFULLY REQUESTS THIS

COURT:

1) WHETHER PRESIDENT IMZA YEBV SHOULD BE HELD RESPONSIBLE

FOR THE DEATH OF THE MOTONOANS;

2) THE USE OF SUCTION-LIFT MINING EQUIPMENT OF STI IS

ATTRIBUTABLE TO RHINOPTERRA AND THEREFORE THE STATE OF

ANTHOZOA IS ENTITLED TO COMPENSATION FOR THE ECONOMIC

LOSS SUFFERED.

3) RHINOPTERRA VIOLATED THE EISMIC AGREEMENT; AND

4) THE DSBM PROJECT IS NOT MARINE SCIENTIFIC RESEARCH BECAUSE

IT VIOLATES THE COMMON HERITAGE OF MANKIND DOCTRINE AND

PROVISIONS OF THE CBD.

7
 Memorial for the Applicant

SUMMARY OF FACTS

The Federal States of Anthozoa (Anthozoa) and the Republic of Rhinopterra

(Rhinopterra) are both island states located in the middle of the Eismic Ocean. Anthozoa

has an islet called Motonui, which is the home of Anthozoas ancestors, the tribe of

Motonoa (the Motonoans), which has a declining population of 200 people. The

Motonoans consume fish on a daily basis. (R.1)

Anthozoa is a developing country with a population of approximately 9,000,000

people and its economy is largely based on ecotourism and fishing industries. On the other

hand, Rhinopterra is a developed state with a population of 7,800,000 people and its

economy is largely based on oil export and shipping and cargo industries. (R.2)

On January 9, 2015, Anthozoa and Rhinopterra entered into a treaty called the

Eismic Agreement on the Conservation of Living Resources in the High Seas (Eismic

Agreement). (R.11)

8
 Memorial for the Applicant

On March 4, 2015 the International Seabed Authority (ISA) awarded an

exploration contract for polymetallic nodules to Sakacho-Trevor Inc. (STI). (R.12)

The Government of Rhinopterra conducted an extensive environment impact

assessment (EIA) and invited Anthozoa and other neighboring states to participate.

However, Anathozoa refused to participate the in the EIA on the ground that DSBM

project violates the Eismic Agreement it contracted with Rhinopterra. Consequently, the

results of the EIA were not published. (R.18)

On August 12, 2015, President Yebv announced the intention of the Government

of Rhinopterra, to engage into a Deep Seabed Mining Project (DSBM). (R.13)

Subsequently, the Legislature of Rhinopterra passed a law that fully approved and funded

the planned DSBM project which was expected to last for ten (10) years and would be

done in the High Seas. However, the law did not require publication after the conduct of an

EIA. (R.15)

Rhinopterra entered into a contract with STI whose CEO, Mr. Akshaya

Sakacho-Trevor, is a good friend of President Imza Yebv. (R.12) STI decided to use

suction-lift mining equipment for the project, which is known among environmentalists to

possibly cause injury to the marine environment. (R.13)

On September 11, 2015, STI began the prospecting stage of the project while

Rhinopterra began the exploration and exploitation stage on November 8, 2015. (R.17)

9
 Memorial for the Applicant

From September 2015 to February 2016, the fish yield of local fishermen from

Anthozoa in the High Seas declined by 23%-30%, which in effect caused economic loss

for the fishing industry of Anthozoa. Also during the said period, forty (40) Motonoans

died as a result of deprivation of access to food brought by the destruction caused by the

project on the marine environment and other marine life in the Eismic Ocean. (R.19)

These developments led the Government of Anthozoa to send a diplomatic note

to the Government of Rhinopterra pertaining to the said events and reiterate its earlier

opposition to the project which is a violation of Article III paragraphs (1) and (2) of the

Eismic Agreement. Furthermore, the Government of Anthozoa is urging the Government

of Rhinopterra to suspend or terminate the project immediately. (R.21)

The Government of Rhinopterra responded with a diplomatic note to the

Government of Anthozoa that the DSBM project did not violate the Eismic Agreement

and is consistent with the Regulations on Prospecting and Exploration for Polymetallic

Nodules in the Area by the International Seabed Authority. Rhinopterra even considered

the project as a marine scientific research, a right they can exercise under Article 143 of

UNCLOS and that their President acknowledged the importance of deep seabed mining as

it would serve the interest of its people . (R.22)

Unable to settle their differences, the Federal State of Anthozoa and the Republic

of Rhinopterra referred to the International Court of Justice questions of violations of

10
 Memorial for the Applicant

international law. The Federal State of Anthozoa claims that President Imza Yebv was

responsible for the deaths of forty (40) Motonoans, and that Rhinopterra violated the

Eismic Agreement while its DSBM project violated the common heritage of mankind

doctrine and provisions of CBD, and that the Federal State of Anthozoa is entitled for

compensation for the economic loss suffered due to the use suction-lift mining equipment

of STI which is attributable to Rhinopterra. (R.23)

The Republic of Rhinopterra opposes the claims and submits that President Yebv did

not cause the death of the Motonoans and even if he did, he has immunity for acts jure

imperii, and that Rhinopterra did not violate the Eismic Agreement because they

conducted an EIA and the DSBM project was consistent with ISA standards, and that

Rhinopterra has the freedom to conduct marine scientific research in the High Seas

according to the UNCLOS, and that Rhinopterra is not liable for the acts of STI because

the latter acted beyond its authority. (R.24)

11
 Memorial for the Applicant

SUMMARY OF PLEADINGS

I. President Imza Yebv should be held responsible for the deaths of forty (40)

Motonoans.

Being the head of state, President Imza Yebv is responsible for the deaths of the

forty Motonoans in his acts jure gestionis pertaining to the DSBM project. The conduct of

the state-sponsored DSBM project by STI is part of the commercial activity which the

government is covering up as a marine scientific research to justify its contention that the

project is an act jure imperii by the President for the benefit of the people of Rhinopterra.

More so, the destructive effects of the project determine the extent of liability of President

Yebv with the usage of suction-lifting mining equipment by STI that were proven to be

hazardous to the marine environment of the Eismic Ocean, hence led to the reported

deaths of Motonoans.

12
 Memorial for the Applicant

II. The use of suction-lift mining equipment of STI is attributable to Rhinopterra and

therefore the state of Anthozoa is entitled to compensation for the economic loss

suffered.

An internationally wrongful act requires an act or omission which constitutes a breach of an

international obligation and that such act is attributable to the State. Rhinopterras

non-compliance of the Eismic Agreement and STIs breach of the Rio Declaration of 1992 for

using suction-lift mining equipment, disregarding its impact on the environment, constitute an

internationally wrongful act. The acknowledgement of the act in question by the Government

of Rhinopterra served as a ratification, therefore making Rhinopterra responsible for the

violation. An internationally wrongful act or an action or omission in breach of an

international obligation attributable to a State entails the responsibility of that State.

III. The Government of Rhinopterra breached its obligations under the Eismic

Agreement.

By its acts and omission, Indonesia breached its obligations under Eismic

Agreement on the Conservation of Living Resources in the High Seas (Eismic

Agreement). Rhinopterras mere passage of law does not fully comply with its

obligation to ensure the compliance of STI with its exploration contract granted by the

ISA. Also, Rhinopterra enacted a law dispensing with the requirement of publication of

EIA to circumvent compliance with its treaty obligation under UNCLOS and Eismic

Agreement. Rhinopterra cannot invoke its domestic law in order to justify its failure to

comply with its treaty obligations.

13
 Memorial for the Applicant

IV. The DSBM project is not a scientific research because it violates the common

heritage of mankind doctrine and provisions of the CBD.

Although marine scientific research is not defined under the UNCLOS, it has

been identified that activities of prospecting for and exploration of natural resources, like

the DSBM project of Rhinopterra, are not considered as marine scientific research.

Moreover, the said project violates the Heritage of Mankind Doctrine and the provisions

of the Convention on Biological Diversity because it was undertaken only for the benefit

of the citizens of Rhinopterra and it was carried out in a manner without regards to the

conservation of biological diversity and sustainable use of its components. Such neglect

caused the decline of Anthozoas fish yield and consequently, the economic loss of its

fishing industry.

MAIN PLEADINGS

I. President Imza Yebv should be held responsible for the deaths of forty (40)

Motonoans. .

A. President Imza Yebz is acting jure gestionis pertaining to the Deep Seabed

Mining Project (DSBM Project).

14
 Memorial for the Applicant

As the head of state, President Imza Yebv is regarded as the embodiment of or at

least represents the sovereignty of the Republic of Rhinopterra.1 However, not all actions

of the President can be construe as act jure imperii. His vigorous campaign to conduct the

Deep Seabed Mining in the Eismic Ocean and with the backing of Rhinopterras

Legislature led him to enter into a contract with STI which is commercial in nature2

The Deep Seabed Mining or Deep Sea Mining is a relatively new mineral

retrieval process that takes place on the ocean floor and is a source for valuable metals

such as silver, gold, copper, manganese, cobalt and zinc.3 This form of activity which is

usually conducted for economic consideration, has increase awareness among private

entrepreneurs as an alternative source of minerals for the 21st century.4

Under the restrictive theory, a state is considered to engage in a commercial

activity if such activity can be exercise by a private citizen or entity and is distinct from the

powers peculiar to a sovereigns. 5 The contention of Rhinopterra that it is a marine

scientific research do not hold water as the project itself is commercial in nature due to the

association of such activity as a private economic undertaking that can be conducted by

private individuals or entitites. Therefore in such instance when the state engages in a

1
ISAGANI A. CRUZ, INTERNATIONAL LAW 142 (2003 ed. 2003).

2 R11; R17

3 Ahnert, A.; Borowski, C., Journal of Aquatic Ecosystem Stress and Recovery, 299315 (2000).

4RAHUL SHARMA , DEEP-SEA MINING: ECONOMIC, TECHNICAL, TECHNOLOGICAL AND

ENVIRONMENTAL, CONSIDERATIONS FOR SUSTAINABLE DEVELOPMENT 28-41 (vol.45(5) 2011).

5 Saudi Arabia v. Nelson, (91-522), 507 U.S. 349 (1993).

15
 Memorial for the Applicant

commercial transactions, it acquires the status of a private person and their acts cannot be

considered an act of state or acts jure imperii6

B. President Imza Yebz is responsible for the destructive effect of the DSBM

Project on the marine environment of the Eismic Ocean which led to the

deaths of forty Motonoans.

The destructive effects of the project has lead not only to the economic loss of

Anthozoas fishing industry but also to the disruption of the food chain of the marine life

in the Eismic Ocean, which contributed to the deaths of forty Motonoans. . This human

rights violation committed against the Motonoans for their inaccessibility to their only

food staple, fish which is consume by the said tribe in a daily basis is a manifestation of

non-observance of basic human rights.7 Notwithstanding the use of suction-lifting mining

equipment, which is known among environmentalists to possibly cause injury to the

marine environment, has been instrumental to the destruction of the marine environment

of Eismic Ocean in the conduct of the project by STI.8 The liability of such indirect

international delinquency by the President will attach immediately as such act may not be
9
effectively prevented or reversed under the laws of the state. Even if Rhinopterra does

not violate or contravene any domestic laws, the act shall be characterized as

6 Dunhill vs. Republic of Cuba, (73-1288 ) 425 U.S. 682 (1976)

7 R.1

8 R.13

9 ISAGANI A. CRUZ, INTERNATIONAL LAW 147 (2003 ed. 2003).

16
 Memorial for the Applicant

internationally wrongful as it has breach international obligations which the state, through

the Executive Branch or the President, is obliged to follow or adhere.10

A study of the law of sovereign immunity reveals the existence of two conflicting

concepts of sovereign immunity, each widely held and firmly established. According to

the classical or absolute theory of sovereign immunity, a sovereign cannot, without his

consent, be made a respondent in the courts of another sovereign. According to the newer

or restrictive theory of sovereign immunity, the immunity of a sovereign is recognized

with regard to sovereign or public acts (jure imperii) of a state, but not with respect to

private acts (jure gestionis).11

Therefore, President Imza Yebv should be held responsible for the deaths of the

forty Motonoans due to their inaccessibility to food that was disrupted by a private act

(jure gestionis) pertaining to the DSBM projected conducted by STI in the Eismic Ocean.

II. The use of suction-lift mining equipment of STI is attributable to Rhinopterra and

therefore the state of Anthozoa is entitled to compensation for the economic loss

suffered.

10 Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001

11 Understanding the Doctrine of Sovereign Immunity International Law,

https://www.lawteacher.net/free-law-essays/international-law/understanding-the-doctrine-of-sovereign-immunity-i
nternational-law-essay.php

17
 Memorial for the Applicant

The existence of an internationally wrongful act committed by a State depends

upon the presence of a breach, may it be an act or omission, of an international

obligation and that the act in question can be attributed to the State under International

Law.12 Aside from the obligations imposed by UNCLOS13 and CBD14, the Doctrine of

State Responsibility for acts imposing risks to our environment is also anchored upon

two customary international law duties of a State, to wit: (1) the duty to prevent, reduce,

and control pollution and environmental harm; and (2) the duty to cooperate in

mitigating environmental risks and emergencies, through notification, consultation,

negotiation, and environmental impact assessment,15 upon the existence of threat to the

environment. Such duties are not only imposed upon States within their territory or those

within any other State, but also to all parts of the sea.16

A. STIs act of using Suction-lift mining equipment is an internationally

wrongful act.

As already discussed, Rhinopterras act of non-compliance of Eismic

Agreement, especially of Article XV thereof, is a violation of International Law. The act

of STI of using the suction-lift mining equipment without instruction nor consent from

Rhinopterra, disregarding its effect on the marine environment, is also a breach of the

12 Draft articles on Responsibility of States

13 Article 145, UNCLOS

14 Article 14, par. D, CBD

15 65KURUKULASURIYA AND ROBINSON, TRAINING MANUAL ON INTERNATIONAL ENVIRONMENTAL LAW (2006), 17;
see also Gunther Handl, State Liability for Accidental Transnational Environmental Damage by Private Person, 74
A.J.I.L. 525 (1980).

16 UNCLOS

18
 Memorial for the Applicant

Rio Declaration of 1992.17 It is already clear that an International Law has been violated

through the act of STI and the omission of action by Rhinopterra.

B. Rhinopterras inaction and acknowledgement constitutes ratification.

Moreover, the inaction of Rhinopterra to address the environmental concerns

raised by the Applicant was a breach of its duty to ensure effective protection for the

marine environment from harmful effects of the activity.18 It failed to act upon the

violation blatantly committed by STI. In fact, the Government of Rhinopterra even

acknowledged STIs use of suction-lift mining equipment through its diplomatic note

sent to the Applicant.19 Such act, aside from the failure to stop the violation, comprises

ratification of the breach of International Law done by a private entity. 20 Ratification, to

be imputable to the State, is sufficient where there is acknowledgement of the act and

there is adoption which is unequivocal and unqualified, either express or inferred from

the conduct of the State.21

C. Rhinopterra is liable for the internationally wrongful act.

An internationally wrongful act or an action or omission in breach of an

international obligation attributable to a State entails the responsibility of that State.22The

wrongdoing State incurs the obligation to wipe out all consequences of the illegal act and

17 Rio Declaration, Principle 15 (1992)

18
Article 145, UNCLOS

19
Par. 22, Record

20
Article 11, Draft articles on Responsibility of States

21
Ibid.

22
Articles on State Responsibility, supra note 47, at arts.1 ,2 [3]

19
 Memorial for the Applicant

reestablish the situation which would have existed if the act had not been committed.23

Where restitution is impossible or insufficient, the wrongdoing State must pay

compensation.24 Compensation is due for any financially assessable loss which in the

ordinary course of events would not have occurred if the unlawful act had not been

committed.25 The use of suction-lift mining equipment of STI has an adverse impact to

the Eismic Ocean and reduces the mortality rate of the aquatic animals including the fish.

As a result, the Republic of Anthozoas fishing industry suffered an economic loss. This

violation of Anthozoas rights constitute a direct injury to Anthozoa in its quality as a

State. Subsequently, it also caused deaths of the Motonoans due to scarcity of the fish

which is their only source of food for survival. Thus, appropriate compensation is due to

Anthozoa.

Environment in the context of deep seabed mining covers more than just the

direct ecological surrounding of the mining area. When considering the environmental

impacts in an Environmental Impact Assessment (EIA) both the positive and negative

impacts of a project on the ecological, social and economic aspects are taken into

account, including alternatives for certain parts of the project and a base-line study.26

Under Article XV of the Eismic Agreement, States are obliged to participate

and conduct an extensive environmental impact assessment and publish the results

23
Articles on State Responsibility, supra note 47, at art. 36[43]

24
Articles on State Responsibility, supra note 47, at art. 37[441

25
Articles on State Responsibility, supra note 47, at art.37/2[44]

26 http://www.marineinsight.com/

20
 Memorial for the Applicant

thereafter27. Further, the Convention on Biological Diversity also provides that each

contracting party should introduce appropriate procedures regarding the conduct of

environmental impact assessment and there should be a participation of the public.

28
Contracting party shall publish a notice informing the public that the draft of EIS is

available for public review, that written submissions will be received and that the public is

invited to participate in the public hearing on the Draft EIS29.

The refusal of the Republic of Anthozoa to participate in the EIA is immaterial

because the Federal States of Rhinopterra has the obligation to comply their treaty

obligation. Publication of the result of EIA is indispensable in accordance with Section 4,

Part XII of the UNCLOS which provides that the States shall publish reports of the results

obtained pursuant to article 204 or provide such reports at appropriate intervals to the

competent international organizations, which should make them available to all States.30

In the case of Rhinopterra, the results of the EIA were not published, hence it is a

clear violation of their treaty obligation. 31 The resulting report of an EIA, an

Environmental Impact Statement (EIS), should contain minimization, mitigation and

monitoring measures for the remaining environmental impacts. 32 This EIS generally

27 Article XV, Eismic Convention

28 Article 14, CBD

29 Article 17, Law on Envrironmental Impact Assessment

30 Section 4, Part XII of the UNCLOS

31 R.18

32 https://www.cbd.int/
21
 Memorial for the Applicant

forms a compulsory part of the mining license application of the concession holder to the

government. Failure to comply with this requirement, Rhinopterra is liable and Anthozoa

is entitled to compensation for the economic loss suffered.

III. The Government of Rhinopterra breached its obligations under the Eismic

Agreement.

Treaties are binding upon parties and must be complied with in good faith.33

Pacta sunt servanda obligates parties to perform treaty obligations in a reasonable

manner that its object and purpose can be realized.34 Thus, states are required to take

necessary measures to fulfil their duties under the treaty and may not invoke restrictions

imposed by domestic law as good reason for not complying with their treaty obligations.35

State responsibility arises if the parties to the treaty failed to observe pacta sunt

servanda.36

A. Rhinoptera failed to take necessary measures with respect to the conduct of

DSBM project in the Eismic Ocean

33
Vienna Convention on the Law of Treaties, Art. 26, May 23, 1969.
34
Ibid.
35
Vienna Convention on the Law of Treaties, Art. 27, May 23, 1969.
36
Interpretation of Peace Treaties with Bulgaria, Hungary, and Romania, Advisory Opinion, I.C.J. 221
(1950).

22
 Memorial for the Applicant

Freedoms of the high seas are open to all States.37 The right of a State to these

freedoms is qualified by the duty to have due regard for the interests of other States

and also to the protection and preservation of the marine environment.38

States parties are obliged to ensure that activities in the Area, whether carried out

by States Parties, or state enterprises or natural or juridical persons which possess the

nationality of States Parties or are effectively controlled by them or their nationals,

shall be carried out in conformity with the terms of its contract and its obligations

under the UNCLOS.39

Under the Eismic Agreement, the Parties are responsible to take necessary and

appropriate measures to prevent and control activities related to the Eismic Ocean that

may cause harm and destruction to the marine environment.40 A necessary and

appropriate measure requires formulation of policies expressed in legislation and

administrative regulations and effective implementation of policies through various

enforcement mechanisms to guarantee the State-contractors compliance with the

State obligations under the treaty and to ensure effective protection of the

environment.41

37
Vienna Convention on the Law of Treaties, Art. 86, May 23, 1969.
38
Ibid.
39
United Nations Convention on the Law of the Seas, Article 139(1), Nov. 16, 1994.
40
Eismic Agreement, Article III (2)
41
Advisory Opinion on the Responsibilities and Obligations of States Sponsoring Persons and Entities with
respect to Activities in the Area.

23
 Memorial for the Applicant

Rhinopterras mere passage of law does not fully comply with its obligation to

ensure the compliance of STI with its exploration contract granted by the ISA. The

passage of the law merely signifies the recognition of their Government to undertake

into deep seabed mining without formulating proper legislative and administrative

regulations as well as preventive measures in the conduct of its activities in the

Eismic Ocean.42

State parties under the Eismic Agreement are obliged to participate and conduct

an EIA and publish the results thereof. Likewise, UNCLOS requires that States shall

publish reports of the results it obtained from EIA which should be available to all
43
States who will be affected by such activities.

Despite the existence of such provisions, Rhinopterra did not publish the results

of the EIA due to the adamant refusal of Anthozoa to participate in the conduct of

EIA on the ground that the DSBM project is in violation of the Eismic Agreement
44
which both states are parties thereof. Subsequently, Rhinopterra enacted a law

dispensing with the requirement of publication of the results of EIA.45 Enactment of

such law is a blatant breach of Rhinopterra with its treaty obligations under Eismic

42
R.15
43
United Convention on the Law of the Seas, Art. 204 205, Section 4, Part XII, Nov. 16, 1994.
44 R.18

45 R.15

24
 Memorial for the Applicant

Agreement46 and UNCLOS. Rhinopterra cannot invoke restrictions imposed by its

47
domestic law as a reason for not complying with their treaty obligations.

Failure of Rhinopterra to enact and implement legislative and administrative

regulations and preventive measures with respect to conduct of deep seabed mining in

the Eismic Ocean and for dispensing with the publication of EIA which is an

indispensable requirement under the Eismic Agreement, Rhinopterra committed a

wilful violation of its treaty obligations.48 Consequently, Rhinopterra should be held

responsible for negative effects brought about by its acts and omissions to marine

environment and the people of Anthozoa.

B. Rhinopterra neglect its duty to protect the environment pursuant to

precautionary approach' indicated in the Eismic Agreement

The precautionary principle shall be widely applied by States according to their

capabilities in order to protect the environment.49 If there is a reasonable degree of

certainty that the conduct of an activity may have environmentally harmful

consequences, it should desist in performing the activity instantly rather than to wait

46 R. 11

47 Vienna Convention on the Law of Treaties, Art. 26, May 23, 1969.

48 Vienna Convention on the Law of Treaties, Art. 26, May 23, 1969.
49
Rio Declaration, Principle 15 (1992)

25
 Memorial for the Applicant

for incontrovertible scientific evidence. This principle is expressly provided under the

Rio Declaration of 1992 which states that:

Where there are threats of serious or irreversible damage, lack of full

scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.50

Reasonable certainty is sufficient to terminate or suspend the DSBM project.

Absolute certainty, supported with adequate and extensive research is not necessary

under the precautionary principle to cease and desist in conducting an activity which
51
environmental degradation is likely to occur.

Prior to the start of DSBM project, Anthozoa adamantly opposes to its

implementation due to its unknown and negative effects on marine environment and

other marine life. However, Rhinopterra disregarded the opposition of Anthozoa and

continued with the project. Rhinopterra even enacted a law to circumvent the

requirement under its treaty obligations to publish the EIA which Anthozoa refused to

participate. 52
At the outset of the exploration and exploitation stage of DSBM

project conducted by Rhinopterra, the fish yield of Anthozoan fishermen declined and

as a result the fishing industry of the State of Anthozoa suffered economic

50
Ibid.
51 Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities In The Area, Feb. 1, 2011

52 R.18

26
 Memorial for the Applicant

loss. 53 Consequently, Monotoans died due to deprivation of food as a result of

decrease in fish yield.54

Despite the occurrence of these events and the requests of Anthozoa to terminate

or suspend the project, Rhinopterra continued such activity alleging that it will serve

for the benefit of mankind which contention is belied by the next argument.

IV. The DSBM project is not a scientific research because it violates the common

heritage of mankind doctrine and provisions of the CBD.

A. The DSBM project is not a marine scientific research.

The Government of Rhinopterra stated that the DBSM is considered as marine

scientific research and that Rhinopterra has the freedom to conduct scientific research in

the High Seas pursuant to Article 143 of UNCLOS.55

Marine scientific research is not defined under the Law of the Sea Convention but

it generally pertains to those activities undertaken in the ocean to expand knowledge of the

marine environment and its processes56. The United States has identified some marine

data collection activities that are not marine scientific research. These include prospecting

53 R.19

54 R.19

55
R22
56
U.S. Department of State, Marine Scientific Research Authorizations,
https://www.state.gov/e/oes/ocns/opa/rvc/
27
 Memorial for the Applicant

for and exploration of natural resources; hydrographic surveys (for enhancing the safety of

navigation); military activities including military surveys; activities related to the laying

and operation of submarine cables; and environmental monitoring and assessment of

marine pollution pursuant to section 4 of Part XII of the Convention,57 to mention a few.

The exploration contract for polymetallic nodules awarded by the ISA to STI58 is

under the prospecting and exploration of natural resources, which is not considered as a

marine scientific research according to the United States.59

B. The project is violative of the Heritage of Mankind Doctrine.

The common heritage of mankind is an ethical concept and a general concept of

international law. It establishes that some localities belong to all humanity and that their

resources are available for everyones use and benefit, taking into account future

generations and the needs of developing countries.60

The Government of Rhinopterra stated that their President has acknowledged the

importance of deep seabed mining to serve the interests of the people of Rhinopterra.61

57
Ibid
58
R12
59
U.S. Department of State, Marine Scientific Research Authorizations,
https://www.state.gov/e/oes/ocns/opa/rvc/
60
Taylor, Prue, The Common Heritage of Mankind: A Bold Doctrine Kept Within Strict
Boundaries,
http://wealthofthecommons.org/essay/common-heritage-mankind-bold-doctrine-kept-within-strict
-boundaries
61
R22
28
 Memorial for the Applicant

This statement is inconsistent with the common heritage of mankind doctrine in relation to

the UNCLOS provisions: on the declaration of the Area and its resources as common

heritage of mankind62; on the legal status of the Area and its resources which cannot be

claimed by States as theirs nor be available for appropriation and which rights in such

resources are vested in mankind as a whole63; and on the carrying out of activities for the

benefit of mankind.64

C. The project also violates provisions of the Convention on Biological Diversity.

The Convention on Biodiversity seeks the conservation of biological diversity,

the sustainable use of its components, and the fair and equitable sharing of the benefits

arising out of the utilization of genetic resources.65

The decline of the fish yield of Anthozoan fishermen in the High Seas which led to

an economic loss in the fishing industry of Anthozoa66 can be attributed to the failure of

Rhinopterra to integrate consideration of the conservation and sustainable use of

biological resources into national decision-making67 , adopt measures relating to the

use of biological resources to avoid or minimize adverse impacts on biological diversity68

, and protect and encourage customary use of biological resources in accordance with

62
United Nations Convention on the Law of the Seas, Article 136, Nov. 16, 1994.
63
United Nations Convention on the Law of the Seas, Article 137, Nov. 16, 1994.
64
United Nations Convention on the Law of the Seas, Article 140 (1), Nov. 16, 1994.
65
Convention on Biological Diversity, Art. 1, Dec. 29, 1993.
66
R19
67
Convention on Biological Diversity, Art. 10 (a), Dec. 29, 1993.
68
Convention on Biological Diversity, Art. 10 (b), Dec. 29, 1993.
29
 Memorial for the Applicant

traditional cultural practices that are compatible with conservation or sustainable use

requirements.69

The convention also provides that States have the right to exploit their own

resources 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.70

69
Convention on Biological Diversity, Art. 10 (c), Dec. 29, 1993.
70
Convention on Biological Diversity, Art. 3, Dec. 29, 1993.
30
 Memorial for the Applicant

CONCLUSION AND PRAYER RELIEF

Applicant, the Federal State of Anthozoa, respectfully requests that the International Court

of Justice adjudge and declare that:

1) President Imza should be held responsible for the deaths of the Motonoans; and

2) The use of suction-lift mining equipment of STI is attributable to Rhinopterra and

therefore the State of Anthozoa is entitled to compensation for the economic loss

suffered;

Anthozoa requests the court to adjudge and declare that Rhinopterra violated international

law by:

1) Committing breach of its obligations under the Eismic Agreement; and

2) Conducting DSBM project which is not a marine scientific research since it

violates the common heritage of mankind doctrine and provisions of the CBD.

Respectfully Submitted,

AGENTS FOR THE APPLICANT

Members:

MIKE JOSEPH M. CRUIZ (Applicant)

Special Issues in International Law - Wednesday 8:00-10:00PM M4

Public International Law - Monday 6:00-8:00PM M7

ROSHALANE JANE B. GABUTAN (Applicant)

31
 Memorial for the Applicant

Human Rights Law - Thursday 8:00-10:00PM M4

ROSEVE BATOMALAQUE (Applicant)

Human Rights Law - Thursday 8:00-10:00PM M4

Special Issues in International Law - Wednesday 8:00-10:00PM

MARICHEL BAYADOG (Respondent)

Human Rights Law - Saturday 8:00-10:00PM M7

Special Issues in International Law - Tuesday 8:00-10:0PM

KRISTINA GINN ESTOY (Respondent)

Human Rights Law - Saturday 8:00-10:00PM M7

Legal Writing Wednesday 6:00-8:00PM M6

ELLEN NIEBRES (Respondent)

Human Rights Law - Saturday 8:00-10:00PM M7

32