2016 General List No.

170

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE

THE NETHERLANDS

CASE CONCERNING QUESTIONS RELATING TO OCEAN

FERTILIZATION AND MARINE BIODIVERSITY

FEDERAL STATES OF AEOLIA, APPLICANT

V.

REPUBLIC OF RINNUCO, RESPONDENT

MEMORIAL FOR THE APPLICANT

2016- 2017 Stetson International Environmental Moot Court Competition

 2

Table of Contents
ACRONYMS .......................................................................................................................................... 3
INDEX OF AUTHORITIES................................................................................................................... 3
TREATIES AND CONVENTIONS ................................................................................................... 3
SOFT LAW......................................................................................................................................... 3
CASE LAW ........................................................................................................................................ 4
BOOKS ............................................................................................................................................... 4
ARTICLES: ........................................................................................................................................ 4
REPORTS ........................................................................................................................................... 5
STATEMENT OF JURISDICTION ....................................................................................................... 6
QUESTIONS PRESENTED ................................................................................................................... 7
STATEMENT OF FACTS ..................................................................................................................... 8
SUMMARY OF ARGUMENT ............................................................................................................ 10
ARGUMENTS...................................................................................................................................... 11
THE COURT HAS JURISDICTION OVER THIS DISPUTE IN ACCORDANCE WITH
ARTICLE 27 OF THE CBD, AS WELL AS ARTICLE 287 OF UNCLOS.................................... 11
THE NOTICE OF REVOCATION SUBMITTED BY RINNUCO IS NOT A SUFFICIENT
GROUND TO REJECT THE JURISDICTION OF THE ICJ AS PER UNCLOS AND THE
VCLT ............................................................................................................................................ 11
THE NOTICE OF REVOCATION IS IN BREACH OF GOOD FAITH, EQUITY AND AN
ABUSE OF RIGHTS BY RINNUCO .......................................................................................... 12
RINUCCO HAS DEROGATED FROM ITS RESPONSIBILITY ERGA OMNES UNDER
CUSTOMARY LAW ....................................................................................................................... 13
RINUCO HAS VIOLATED THE PRINCIPLE OF COOPERATION AND STATE
RESPONSIBILITY: ......................................................................................................................... 15
THE BURDEN OF PROOF HAD NOT BEEN DISCHARGED IN THE PRESENT MATTER. .. 17
IN ITS ACTIONS RINUCCO IS DENYING THE ATTAINMENT OF SUSTAINABLE
DEVELOPMENT BY VIOLATING EQUITY ................................................................................ 22
CONCLUSION ..................................................................................................................................... 23
 3

ACRONYMS
ASR- Articles on State Responsibility

CBD – Convention on Biological Diversity

CMS- Convention on the Conservation of Migratory Species of Wild Animals

ICJ- International Court of Justice

ITLOS- International Tribunal of The Law of the Sea

PCIJ- Permanent Court of International Justice

UNCLOS- United Nations Convention on the Law of The Sea

UNFCC- United Nations Framework Convention on Climate Change

UNGA Res- Resolutions of the United Nations General Assembly

VCLT- Vienna Convention on the Law of Treaties

INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
1. Charter of the United Nations
2. Convention on Biological Diversity
3. Convention on Environmental Impact Assessment in a Transboundary Context (Espoo
Convention)
4. Convention on the Conservation of Migratory Species of Wild Animals
5. Statute of the International Court of Justice
6. United Nations Convention on the Law of the Sea
7. United Nations Framework Convention on Climate Change
8. Vienna Convention on the Law of Treaties

SOFT LAW
1. Convention on Biological Diversity; Alien Species: Guiding principles for the
prevention, introduction and mitigation of impacts, [1999]
2. Declaration of the United Nations Conference on the Human Environment (Stockholm
Principles) [1972]
3. Goals and Principles of Environmental Impact Assessment, The Governing Council of
the United Nations Environment Programme [1987]
 4

4. Responsibility of States for Internationally Wrongful Act (2001), International Law

Commission
5. Rio Declaration on Environment and Development [1992]
6. United Nations General Assembly Resolution 3129 of 1973
7. United Nations General Assembly Resolution 66/288
8. World Summit on Sustainable Development [2002]

CASE LAW
1. Amco Asia Corp. v. Republic of Indonesia, ICSID Case No. ARB/81/1, Award (Nov.
20, 1984), 89 I.L.R. 405, 495–97 (1992).
2. Case Concerning Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ
3. Case Concerning the Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America) I.C.J. 14 (1986)
4. Gabčíkovo–Nagymaros Project (Hungary v Slovakia) ICJ 1997
5. Islands of Palmas case (Netherlands v USA), PCIJ (1928)
6. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ
7. Malaysia v Singapore ICJ (2008)
8. Minors Oposa v. Secretary of the Department of Environmental and Natural Resources,
(1994)
9. Roodal v Trinidad and Tobago, Case 12.342, Inter-Am Comm’n HR 89, (2001)
10. Trail Smelter Arbitration (United States v. Canada) (1935)

BOOKS
1. Oppenheim on International Law (9th ed. 2008)
2. Principles of International Environmental Law, Phillipe Sands, Jacqueline Peel, Ruth
Mackenzie (3rd ed. 2012)
3. The Precautionary Principle in Marine Environmental Law: with Special Reference to
High Risk Vessels, Benedicte Sage- Fuller (2nd ed. 2013)

ARTICLES:
1. Jurisprudence on Ecologically Sustainable Development: Paul Steins Contribution,
Justice Brian J. Preston
2. Sovereignty vs. Trans-boundary Environmental Harm: The Evolving International Law
Obligations and the Sethusamuduram ship Channel Project, Chinthaka Mendis - United
Nations / Nippon Foundation Fellow (2006)
 5

3. The Content of the Rule Against Abuse of Rights in International Law, British
Yearbook of International Law, G.D.S. Taylor (2004)
4. The Precautionary Principle in Biodiversity Conservation and Natural Resource
Management An issues paper for policy-makers, researchers and practitioners, IUCN
Policy and Global Change Group, Rosie Cooney (2004)

REPORTS
1. Communication from the Commission on the precautionary principle COM/2000/0001
2. Ocean Fertilization, A Scientific Summary for Policy Makers, Report Commissioned
by the Intergovernmental Oceanographic Commission IOC/UNESCO
3. Report of the Nordic Council’s International Conference on Pollution of the Seas
(1989)
4. Report of the Thirtieth Meeting of the Scientific Group of the London Convention and
the First Meeting of the Scientific Group of the London Protocol
5. Scientific Synthesis of the Impacts of Ocean Fertilization on Marine Biodiversity, CBD
Technical Series No. 45, Secretariat of the Convention on Biological Diversity.
6. The Conference of the Parties to the Convention on Biological Diversity at its Fifth
Meeting (2000)
 6

STATEMENT OF JURISDICTION
The Federal States of Aeolia and the Republic of Rinnuco are Parties to the Statute of the
International Court of Justice (ICJ). Pursuant to the Statute of the ICJ, art. 36(2), T.S. No. 993
(1945), Aeolia has unconditionally recognized the ICJ’s jurisdiction as compulsory. Rinnuco
has not recognized the ICJ’s jurisdiction as compulsory. (R. at 4). Both states are parties to the
Convention on Biological Diversity (CBD) and in accordance with art. 27(3) of the CBD, 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. (R. at 4). Both are also states parties to the United Nations Convention on the Law
of the Sea (UNCLOS), and both parties made written declarations pursuant to art. 287 of
UNCLOS choosing the ICJ for the settlement of disputes concerning the interpretation or
application of UNCLOS.
 7

QUESTIONS PRESENTED
1. WHETHER THE COURT HAS JURISDICTION OVER THIS DISPUTE IN
ACCORDANCE WITH ARTICLE 27 OF THE CBD, AS WELL AS ARTICLE 287
OF UNCLOS
2. WHETHER 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
 8

STATEMENT OF FACTS
The Federal States of Aeolia and the Republic of Rinnuco are neighbouring coastal states and
have industrial economies and large fishing industries. (R. at 4). Aeolia has a strong ecotourism
sector, the Nautilus Research Institute and an annual festival, all centred around narwhals. (R.
at 4).

Both are members of the United Nations and are parties to the Statute of the International Court
of Justice (ICJ); the Vienna Convention on the Law of Treaties (VCLT); the Convention on
Biological Diversity (CBD); the Convention on the Prevention of Marine Pollution by
Dumping of Wastes and Other Matter (London Convention); the 1996 Protocol to the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,
1972 (London Protocol); and the Convention on the Conservation of Migratory Species of Wild
Animals (CMS). (R. at 4). They are also parties to the United Nations Framework Convention
on Climate Change (UNFCCC), the Kyoto Protocol to the UNFCCC, and the United Nations
Convention on the Law of the Sea (UNCLOS). (R. at 5). They also attended and fully
participated in the 1972 United Nations Conference on the Human Environment at Stockholm,
the 1992 United Nations Conference on Environment and Development at Rio de Janeiro, the
2002 World Summit on Sustainable Development at Johannesburg, and the 2012 Rio+20
Conference at Rio de Janeiro. (R. at 5).

Having been notified of the ocean fertilization project by Rinnuco, Aeolia in a diplomatic note
dated 2 December 2014, expressed concern over the adverse effects the project could have on
the marine biodiversity of the Muktuk Ocean, the narwhals and both states’ economies. Aeolia
urged Rinnuco to act in accordance with the precautionary principle as the impact of the project
on the planned scale was largely unknown. (R. at 4- 5). Rinnuco replied with a diplomatic note
dated 5 December 2014 that it would continue with the project, acknowledging that it would
‘produce useful information and data about the potential benefits and uses of ocean
fertilization…’ and, ‘possible benefits, including...carbon sequestration’. (R. at 6).

Rinnuco proceeded to enact legislation approving and funding the ocean fertilization project
on 15 December 2014 and on 5 January 2015 the Stanlee (one of Rinnuco government research
vessels) began depositing powdered ferrous sulphate within its exclusive economic zone
(EEZ). (R. at 7). Aeolia urged Rinnuco to halt the project to seek and consider other alternatives
due to the adverse effects the project may have on marine biodiversity and the violation of
international law, in a diplomatic note dated 6 January 2015. (R. at 7). Rinnuco responded in a
 9

diplomatic note dated 22 January 2015 asserting that they have not violated any international
law and would suspend the project to engage in diplomatic discussions with Aeolia, though
maintained that they would resume the project at its discretion. (R. at 7- 8).

The Stanlee vessel had already completed the first phase of the project when Rinnuco
suspended its ocean fertilization project, and had not been able to make any final
determinations about the results from the project. (R. at 8). Nine dead narwhals washed up on
Rinnuco coast on 22 April 2015, phenomena not previously observed. (R. at 8). Aeolia’s
Nautilus Research Institute conducted the necropsies and although cause of death was not
ascertained, Aeolia asserted the position that the ocean fertilization project may have
contributed to their deaths and Rinnuco was in violation of international law and the duty not
to cause transboundary harm, as noted in a diplomatic note dated 4 May 2015. (R. at 8- 9).

Rinnuco further asserted that it was not in violation of any international law and would resume
its ocean fertilization project within the next year in a diplomatic note dated 18 May 2015. (R.
at 9). Additional negotiations and mediation between the two states failed to resolve the dispute
regarding Rinnuco project. (R. at 9). In March 2016, Aeolia requested Rinnuco to submit the
matter to the ICJ in accordance with article 287 of UNCLOS, but Rinnuco refused on 21 March
2016. (R. at 10). Rinnuco then proceeded to deposit a notice for revocation of its written
declaration pursuant to article 287 of UNCLOS, stating that it would not submit disputes
concerning interpretation or application of UNCLOS to the ICJ on 28 March 2016. (R. at 5).

Aeolia then applied instituting proceedings against the Republic of Rinnuco, dated 4 April 2016
(Annex B). (R. at 11). Rinnuco submitted a Preliminary Objection, dated 10 May 2016,
contesting the ICJ’s jurisdiction over the matter (Annex C). (R. at 12).
 10

SUMMARY OF ARGUMENT
The Republic of Rinnuco by ratification of the UN Charter makes it ipso facto a party to the
statute of the ICJ. This in effect creates a reciprocal bilateral agreement between Aeolia and
Rinnuco recognizing the ICJ's jurisdiction to hear disputes that arise between the two States.
Furthermore, both states have made written declarations that they would submit to the
jurisdiction of the ICJ regarding disputes arising from the CBD, UNCLOS, UNFCCC, and the
Kyoto Protocol. The notice of revocation by Rinnuco stating that it will not submit disputes to
the ICJ under the UNCLOS does not excuse Rinnuco from its obligations under the treaty, and
is a breach of good faith, equity and abuse of rights by Rinnuco. Therefore, the ICJ has
jurisdiction to hear the present dispute.

The Republic of Rinnuco’s ocean fertilization project in the Muktuk Ocean is in breach if its
obligations under international law. Its actions are in violation of the precautionary principle,
the principle of cooperation, the duty of State responsibility and the duty not to cause
transboundary harm. Through its actions, Rinnuco does not seek to conserve the marine
environment.
 11

ARGUMENTS
THE COURT HAS JURISDICTION OVER THIS DISPUTE IN ACCORDANCE
WITH ARTICLE 27 OF THE CBD, AS WELL AS ARTICLE 287 OF UNCLOS

The Republic of Rinnuco may not recognize the Court’s jurisdiction as compulsory, but by
being a member of the United Nations, ratification of the UN Charter makes Rinnuco ipso facto
a party to the statute of the ICJ. This would, in effect, create a reciprocal bilateral agreement
between Aeolia and Rinnuco recognizing the ICJ's jurisdiction to hear disputes that arise
between the two States. Furthermore, both states have made written declarations that they
would submit to the jurisdiction of the ICJ regarding disputes arising from the CBD, under art.
27 (3), UNCLOS, under article 287, UNFCCC, under art. 14, and Kyoto Protocol, under art.19.
The notice of revocation by Rinnuco stating that it will not submit disputes to the ICJ under
the UNCLOS has not taken effect under the UNCLOS or the VCLT, and is a breach of good
faith, equity and abuse of rights by Rinnuco. Therefore, the ICJ has jurisdiction to hear the
present dispute under the multilateral treaties.

THE NOTICE OF REVOCATION SUBMITTED BY RINNUCO IS NOT A SUFFICIENT

GROUND TO REJECT THE JURISDICTION OF THE ICJ AS PER UNCLOS AND THE
VCLT

Rinnuco seeks to object to the jurisdiction of the Court on the grounds of the notice of
revocation of its written declaration, pursuant to Article 287 of UNCLOS, deposited on 28
March 2016. (R. at 5). Under Article 287 (6) of UNCLOS, the declaration made by Rinnuco
accepting the ICJ’s jurisdiction, as a compulsory dispute mechanism under UNCLOS, shall
remain in force until three months after notice of revocation has been deposited with the
Secretary-General of the United Nations. The VCLT, under Article 65 (2), states:

If, after the expiry of a period which, except in cases of special urgency, shall not be less than
three months after the receipt of the notification, no party has raised any objection, the party
making the notification may carry [out]…. the measure which it has proposed.

Rinnuco legal obligations and responsibility for any breaches remain unabated before and
during the notice of revocation, and survive it once the revocation comes into force as was
noted in the case of Roodal v Trinidad and Tobago, concluding that:

‘[n]otwithstanding Trinidad and Tobago’s denunciation of the Convention…., the Commission

will retain jurisdiction over complaints of violations of the Convention by Trinidad and Tobago in
respect of acts taken by that State prior to [the date the denunciation became effective as well as over]
 12

acts taken by the State prior to [that date] even if the effects of those acts continue or are not manifested
until after that date’.1

Therefore, the acts undertaken by Rinnuco prior to and during the notice of revocation, are not
exempt from the legal obligations created by UNCLOS nor preclude the ICJ from hearing this
dispute.

THE NOTICE OF REVOCATION IS IN BREACH OF GOOD FAITH, EQUITY AND AN

ABUSE OF RIGHTS BY RINNUCO

State parties to UNCLOS, recognizing that the ocean floor and its resources are the common
heritage of mankind, are to act in good faith, and exercise the rights and freedoms under the
treaty in a manner which would not constitute an abuse of right, under Article 300. The 7-day
timeframe, between the request by Aeolia to submit the dispute to the ICJ and the deposit of
the notice of revocation by Rinnuco raises suspicion as to the motivation of the revocation. In
the Nicaragua2 case, the Court noted that the 3 days that elapsed between the revocation filed
by the US and the application by Nicaragua to the Court, was not enough to constitute ‘a
reasonable time for withdrawal’ from a treaty.

The doctrine of pacta sunt servada means that international agreements are binding on the
parties3. Under art. 287 (4) of UNCLOS, once parties have selected the same procedure for the
settlement of disputes, only that procedure may be used, unless the parties agree otherwise
which is not the case here. Rinnuco attempt to extricate itself from its obligations under
UNCLOS without following the procedure set out, amounts to the exercise of power 'contrary
to the purpose for which international law contemplates the power will be used’4.

The principles of good faith and equity are imputed on states negotiating with each other, 'a
mutual willingness to discuss in good faith actual and potential environmental risks'5,
especially with shared resources like the Muktuk Ocean. The re-initiation of the ocean
fertilization project by Rinnuco when attempts at resolving the dispute were made by Aeolia,
does not exemplify the mutual trust, confidence and good faith contemplated by Article 2 (2)

1
Roodal v Trinidad and Tobago, Case 12.342, Inter-Am Comm’n HR 89, OEA/ser L/V/II114, doc 5 rev (2001)
2
Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States
of America) (1986) I.C.J. 14
3
Amco Asia Corp. v. Republic of Indonesia, ICSID Case No. ARB/81/1, Award (Nov. 20, 1984), 89 I.L.R. 405,
495–97 (1992).
4
G.D.S. Taylor, 'The Content of the Rule Against Abuse of Rights in International Law', 46 British Yearbook of
International Law 322 at 352 (1972-73)
5
Gabcikovo-Nagymaros Dam Case (Hungary v Slovakia) (1998) 37 ILM 162, at para. 142.
 13

of the UN Charter and Article 26 of the VCLT. By attempting to withdraw from UNCLOS,
Rinnuco sought to undermine and frustrate Aeolia’s claim arising from the obligations placed
upon Rinnuco under the treaty.

Therefore, the act of filing a notice for revocation by Rinnuco, is an act in breach of good faith,
equity and an abuse of rights.

RINUCCO HAS DEROGATED FROM ITS RESPONSIBILITY ERGA OMNES

UNDER CUSTOMARY LAW

The International Court of Justice (ICJ) recognised in an advisory opinion in the Legality of
the Threat or Use of Nuclear Weapons that, “The existence of the general obligation of states
to ensure that activities within their own jurisdiction and control respect the environment of
other states beyond national control.”6 The Rio principle 27 adopted at the 1992 Rio Conference
on the Environment and Development, although part of non-binding texts is well established and
can be regarded as customary international law. They were reaffirmed in declarations during
the 2002 World Summit on Sustainable Development. Their contents are included in the United
Nations Convention on the Law of the Sea. Principle 21 also appears in article 3 of the 1992
Convention on Biological Diversity to which both states are Parties to.

The sovereign right that states have, has a limitation through the duty to prevent damage to
neighbouring environments. States have, 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 and developmental 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.8 This was
brought out further in the Island of Palmas9 case where it was argued that the territorial
sovereignty also included an obligation for states to protect the rights of other states within its
territory.

In the Barcelona Traction10 case [cb, the ICJ stated “an essential distinction should be drawn
between the obligations of a state towards the international community as a whole, and those

6
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, pp. 241-42,1996
7
1972 Stockholm Declaration, Principle 21, ‘States have the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that activities within their
jurisdiction do not cause damage to the environment of other States beyond the limits of national jurisdiction’
8
United Nations Framework Convention on Climate Change (1992) Preamble
9
Islands of Palmas case (Netherlands v USA), PCIJ (1928)
10
Case Concerning the Barcelona Traction, Light, and Power Company, Ltd [1970] ICJ
 14

arising vis-à-vis another state in the field of diplomatic protection. By their very nature, the
former is the concern of all states. In the view of the importance of the rights involved, all states
can be held to have a legal interest in their protection; they are obligations erga omnes.”

In his separate opinion in the Gabcikovo Nagymaros11 Case, Judge Weeramantry stated that:
“There is substantial evidence to suggest that the general protection of the environment beyond
national jurisdiction has been received as obligations erga omnes. Further, in his dissenting
opinion in a different case, the Legality of the Threat or Use of Nuclear Weapons case, he
states that: “the Global environment constitutes a huge, intricate, delicate interconnected web
in which a touch there or a palpitation there sends tremors throughout the whole system.
Obligations erga omnes, rules jus cogens and international crimes respond to this state of
affairs by permitting environmental wrongs to be guarded against by all nations.”

There is an internationally wrongful act of a State when conduct consisting of an action or

omission is attributable to a State under international law and constitutes a breach of an
international obligation to another State.12 The breach of international obligation is when the
act of a State is not in conformity with what is required of him from the same obligation. The
actions performed by the Respondents in within their jurisdiction constitutes of violations of
international obligations to Aeolia and to other States through the damage of the environment.
The nature of the act of initiating the Ocean fertilisation project is one which renders Aeolia as
per the definition provided by Article 42(ILC Articles SR) as an injured state as the breach of
obligation affects them specifically. In addition to that the breach of this obligation is such of
a character as radically change the position of all other States to which the obligation is owed
with respect to. Therefore, any reinitiating of the project would constitute a further violation of
international law.

To illustrate, global ocean models have predicted that ongoing fertilization would lead to
depletion of macronutrients in the downstream water column. This means that if iron-addition
removes carbon and nutrients from HNLC surface waters, it could lead to a reduction of
nutrients (and thereby phytoplankton production) in other areas. Deep water forms in certain
high latitude regions by the sinking of highly saline, cold surface waters, driving the “conveyor
belt” ocean circulation processes. Increased surface nutrient depletion in areas where deep
water is formed can lower the concentration of preformed nutrients in the sinking water masses.

11
Gabčíkovo–Nagymaros Project (Hungary v Slovakia) 1997
12
Responsibility of States for Internationally Wrongful Acts, (2001) Article 2, International Law Commission
 15

The reduction of nutrients in surface waters could re-emerge to challenge the sustainability of
future primary productivity, thousands of kilometres away from the fertilized site and many
years after experimentation, as deeper waters recirculate to the surface layer.13

RINUCO HAS VIOLATED THE PRINCIPLE OF COOPERATION AND STATE

RESPONSIBILITY:

The previous concept of absolute territorial sovereignty is no longer absolute. Consequently,

the scope for discretionary action arising from the principle of territorial sovereignty is
determined by such principles ‘good neighbourliness’, the maxim sic utere tuo ut alienum non
laedas, as well as by the principle of State responsibility for actions causing transboundary
damage, and more importantly, the prohibition of the abuse by a State of the rights enjoyed by
it by virtue of international law.14 Oppenheim noted: ‘A State, in spite of its territorial
supremacy, is not allowed to alter the natural conditions of its own territory to the
disadvantage of the natural conditions of the territory of a neighbouring State.’15 In the Trail
Smelter Case (United States v. Canada, awards in 1938 and 1941) the Arbitral Tribunal
decided that, ‘Under the principles of international law, no State has the right to use or permit
the use of its 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 the
injury is established by clear and convincing evidence’.
Principle 2 of the Rio Declaration states that ‘States shall prevent transboundary damage:
States have, 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 and developmental 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 and the health of human beings, including
generations unborn’.
Under the Convention on the Conservation of Migratory Species of Wild Animals, the duty of
good neighbourliness is espoused through encouraging Range States of migratory species to

13
Secretariat of the Convention on Biological Diversity, Scientific Synthesis of the Impacts of Ocean Fertilization
on Marine Biodiversity, CBD Technical Series No. 45,
14
Chinthaka Mendis, Sovereignty vs. trans-boundary environmental harm: The evolving International law
obligations and the Sethusamuduram Ship Channel Project, -United Nations / Nippon Foundation Fellow
2006(Nov. 5, 2016, 10:06 a.m.),
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/mendis_0607_sri_l
anka.pdf
15
L.F.L Oppenheim, Oppenheim’s International Law (9th ed. 2008)
 16

endeavour to conclude Agreements which benefit the species that have unfavourable
conservation status by giving them priority.16 These type of agreements between cooperating
states would prevent, reduce the release into the habitat of a migratory species of substances
harmful to that migratory species. It is a duty for the riparian States of an international
watercourse to conduct in good faith consultations and negotiations designed to arrive through
agreements at settlements of conflicts of interests. In the ICJ decision in the Gabcikovo-
Nagymaros case, which was concerned with a dispute between Hungary and Czechoslovakia
over building two dams on the Danube. The judgment of the ICJ in this case indicates the
concept of community of interest in the international rivers as well as the necessity of co-
operation of the States in the area of prevention of environmental harm arising out of activities
regarding these common rivers.
The UN General Assembly stated in unambiguous terms that information and prior
consultation were the basis of the duty of cooperation between states sharing natural resources,
in Resolution 3129 of 1973. In so far as the precautionary principle introduces legal duties in
situations where risks of harm are suspected but not confirmed, it is argued that it is closely
linked with the duty of cooperation. It gives rise to the application of the principles of exchange
of information, notification, prior consultation and EIA earlier than when the risks of damage
are known. Principle 14 of the Rio Declaration emphasises the necessity for rational planning
in order to reconcile any conflict between the needs for development and the need to protect
and improve the environment. Principle 15 stresses the need to avoid adverse effects on the
environment and obtaining maximum environmental benefits for all.

The Governing Council of the United Nations Environment Programme adopted in 1987 a set
of Goals and Principles of Environmental Impact Assessment which emphasised the role of the
EIA in planning and programme implementation at international level. The Goals set three
main objectives to EIA: to ensure that the impact of planned activities is integrated in the
decision making processes, to ensure procedures for EIA in domestic legislation and to
encourage notification, exchange of information and consultation between states.17 Suggesting
mutual cooperation and good neighbourliness as opposed to unilateral decision making
regarding EIA’s. States likely to be affected by any impacts have the right to participate in the
EIA procedure to determine the contents of the EIA documentation.18 It can therefore already

16
Article 4(2) Convention on the Conservation of the Migratory Species of Wild Animals
17
Benedicte Sage-Fuller, THE PRECAUTIONARY PRINCIPLE IN MARINE ENVIRONMENTAL LAW: with
Special Reference to High Risk Vessels (2nd ed. 2013)
18
Second Amendment to the Espoo Convention, (Article 2(11)), 2004 Amendments
 17

be seen that the precautionary principle and EIA’s are closely linked and that the former plays
a substantive role in international environmental governance by ensuring cooperation between
States. The lack agreements between the two States for the protection of the migratory species
suggests a violation of the principle of cooperation between Rinnuco and Aeolia.

THE BURDEN OF PROOF HAD NOT BEEN DISCHARGED IN THE PRESENT

MATTER.

The precautionary principle enables rapid response in the face of possible danger to animal
health or to protect the environment. Judge Weeramanty, in the Gabcikovo-Nagymaros case,
saw precautionary measures as a part of the wider legal principle of sustainable development.
The precautionary principle fosters the sustainable development goal by preserving the
environment by bringing the types and levels of production and consumption on a global level
into line with the finite ability of the earth to sustain them. Without such an approach, an
activity or substance might have an irreversible impact on the environment while scientists
determine its precise effects. This principle was enshrined at the 1992 Rio Conference on the
Environment and Development, during which the Rio Declaration was adopted, whose
Principle 15 states that: "In order to protect the environment, the precautionary approach shall
be widely applied by States according to their capability. 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".19 The CBD has developed
Guiding Principles for the Prevention, Introduction and Mitigation of Impacts of Alien Species
that Threaten Ecosystems, Habitats or Species.20 The Guidelines highlight the precautionary
approach as the first Guiding Principle, understood as meaning that lack of scientific certainty
about the environmental, social and economic risk posed by a potentially invasive alien species
or by a potential pathway should not be used as a reason for not taking preventative action
against the introduction of potentially invasive alien species, and that lack of certainty about
the long-term implication of an invasion should not be used as a reason for postponing
eradication, containment or control measures.21 The precautionary principle has subsequently
been extensively included in decisions marine and coastal biodiversity (e.g., Decision II/10,

19
Principle 15, Rio Declaration
20
UNEP/CBD/COP/6/20, Alien Species that threaten ecosystems, habitats or species (November 5th 2016,
10:30am),https://www.cbd.int/doc/decisions/cop-06-dec-23-en.pdf
21
CONVENTION ON BIOLOGICAL DIVERSITY; ALIEN SPECIES: GUIDING PRINCIPLES FOR THE
PREVENTION, INTRODUCTION AND MITIGATION OF IMPACTS, UNEP/CBD/SBSTTA/5/5, (22 October
1999)
 18

SBSTTA I/8). It partly states that ‘the "Executive Secretary should identify options for a
pragmatic but comprehensive approach in addressing marine and coastal biological diversity
on the basis of an ecosystems approach, review the activities under international agreements
that affect marine and coastal biological diversity and the general approaches that should be
applied in addressing these issues begin with the precautionary approach; interaction with other
organizations; capacity-building and technology transfer.’ The “ecosystem approach” is used
in a variety of ways, but has been defined within the CBD as “a strategy for integrated
management of land, water and living resources that promotes conservation and sustainable
use in an equitable way” (Decision V/6).22 The ecosystem approach characteristically
incorporates the understanding that ecosystems are dynamic and inherently largely
unpredictable, and uncertainty is therefore endemic.23 The approaches stipulated by the COP
admonishes the following principles which are to guide States. Principle 3 outlines that
ecosystem managers should consider the effects (actual or potential) of their activities on
adjacent and other ecosystems. Principle 5 further provides that, conservation of ecosystem
structure and functioning, to maintain ecosystem services, should be a priority target of the
ecosystem approach. The rationale for this being, ecosystem functioning and resilience depends
on a dynamic relationship within species, among species and between species and their abiotic
environment, as well as the physical and chemical interactions within the environment. The
conservation and, where appropriate, restoration of these interactions and processes is of
greater significance for the long-term maintenance of biological diversity than simply
protection of species. Principle 8 recognizes the varying temporal scales and lag-effects that
characterize ecosystem processes, and states that objectives for ecosystem management should
be set for the long term. The rationale being, ecosystem processes are characterized by varying
temporal scales and lag-effects. This inherently conflicts with the tendency of humans to favour
short-term gains and immediate benefits over future ones.24
BURDEN OF PROOF STANDARD
The precautionary principle is often put into practice by reversing the evidentiary burden (the
“burden of proof”), by establishing a presumption that certain activities should not be allowed

22
UNEP, COP 5 Decision V/6, Convention on Biological Diversity, (November 20 th 2016 20:20)
< https://www.cbd.int/decision/cop/?id=7148>
23
Chinthaka Mendis, Sovereignty vs. Trans-boundary Environmental Harm: The Evolving International Law
Obligations and the Sethusamuduram ship Channel Project, - United Nations / Nippon Foundation Fellow
(November 22nd 2016)
http://www.sehn.org/pdf/PrecautionaryPrincipleissuespaper.pdf (2006)
24
Decisions adopted by the Conference of the Parties to the Convention on Biological Diversity at its Fifth
Meeting; Decision V/6 (15 - 26 May 2000 - Nairobi, Kenya)
 19

to proceed without a demonstration that they are not harmful, rather than operating on the
presumption that certain activities should be allowed to proceed unless there is evidence that
they are harmful. This then places the evidentiary burden on the Respondents. The evidentiary
burden is placed on the proponent of an activity to demonstrate that it will not cause harm.25The
shift of the burden of proof gives the principle operational effect. Proponents of potentially
harmful activities may be required to demonstrate that such activities are safe or acceptable,
rather than those opposing the activities being required to argue that they are harmful 26

Rinnuco has violated international law by not fully discharging its burden of proof and not
aligning its conduct with the precautionary principle. In line with principle 8 of the guiding
principles of the CBD, Rinnuco ought to have come up with a better long term plan that doesn’t
not impact on the ecosystem and its survival adversely. In recognising whether an action will
result in sound ecosystem management, Rinnuco should have kept the precautionary principle
enshrined under Rio Principle 15 close to its endeavours. The precautionary principle operates,
when activated, to create an assumption that the threat is not uncertain but rather certain. Hence,
if there is a threat of serious or irreversible environmental damage and there is the requisite
degree of scientific uncertainty, the precautionary principle will be activated. A decision–
maker must assume that the threat of serious or environmental damage is no longer uncertain
but is a reality. The burden of showing that this threat does not, in fact, exist or is negligible
effectively reverts to Rinnuco. If the burden is not discharged, the decision-maker proceeds on
the basis that there is threat of serious or irreversible environmental damage and determines
what preventative measures ought to be taken. The decision-maker is in the same position as if
there had been a relatively certain threat of serious or irreversible damage. 27 Environmental
measures must anticipate, prevent and attack the causes of environmental degradation.
Preventive measures are to be taken where there are reasonable grounds for concern even when
there is no conclusive evidence of a causal relationship between the inputs and the alleged
effect. The 1989 report of the Nordic Council’s International Conference on Pollution of the
Seas calls for an effective precautionary approach with the principle intended to safeguard the

25
Communication from the Commission on the precautionary principle
COM/2000/0001 final EUR-Lex, Access to European Union Law, (November 21 st 2016 10:00 am) http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=celex:52000DC0001
26
Chinthaka Mendis, Sovereignty vs. Trans-boundary Environmental Harm: The Evolving International Law
Obligations and the Sethusamuduram ship Channel Project, - United Nations / Nippon Foundation Fellow
(November 22nd 2016)
27
Justice Brian J. Preston, JURISPRUDENCE ON ECOLOGICALLY SUSTAINABLE DEVELOPMENT:
PAUL STEINS CONTRIBUTION, at Sydney Conference (2009) (Sept. 26, 2016, 7:30am)
<http://www.lec.justice.nsw.gov.au/Documents/preston_jurisprudence%20on%20ecologically%20sustainable%
20development.pdf>
 20

marine ecosystem by eliminating and preventing pollution emissions where there is reason to
believe the harmful effects are likely to be caused even with inconclusive scientific evidence
to prove a causal link between emissions and effects. 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. Such a project could
upset the entire food web and negatively impact the marine biodiversity of the Muktuk Ocean.
A proliferation of phytoplankton could disrupt predator-prey relationships and affect numerous
species of fauna and flora. 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. Not only could this project have negative effects on the marine environment
and biodiversity, but the project could adversely impact the economies of both Rinnuco and
Aeolia. Although Rinnuco claims that its EIA assessment was sufficient, it didn’t not discharge
the burden of proof to Aeolia and given the transboundary effects likely to be felt by Aeolia
and other nearby states, has violated the right of each of the neighbouring states to a clean and
healthy environment.
Following the issues brought out in the United Nations General Assembly Resolution 66/288,
it was noted that there was a significant threat which alien invasive species pose to marine
ecosystems and resources, and provided that commitments be made to implement measures to
prevent the introduction and manage the adverse environmental impacts of alien invasive
species. In most experiments done, the dominant phytoplankton group changed, with a shift in
community composition from smaller groups (cyanobacteria), via medium-sized
phytoplankton (haptophytes), to larger diatoms. There is yet, no information from experimental
studies on responses further up the food chain (e.g. by fish). The principle of prevention, would
require the taking of preventative measures to control or regulate the relatively certain threat
of serous or irreversible environmental damage.

In 2003, the International Tribunal for the Law of the Sea prescribed provisional measures on
the basis of Article 290(5) of the UNCLOS in a dispute between Malaysia and Singapore
concerning a project of land reclamation carried out by the latter and claimed by the former to
have adverse effects on its marine environment. 28The ITLOS therefore clearly linked exchange
of information and EIA with the precautionary principle. While acknowledging that there is

As one of the grounds for its decision the Tribunal considered that, ‘… given the possible implications on the
28

marine environment, prudence and caution require that Malaysia and Singapore establish mechanisms for
exchanging information and assessing the risks or effects of land reclamation works and devising ways to deal
with them in the areas concerned.’
 21

uncertainty as to the future effects of Ocean fertilisation, it is evident that the consequences
will be complex due to the dynamic nature of the coastal environment. The range of impacts
may well be beyond the predictive capability of current assessment techniques. In the face of
such evidence a course of action is warranted to prevent irreversible or severe harm. The ICJ
has the power to indicate, if it considers that circumstances so require, any provisional
measures which ought to be taken to preserve the respective rights of either party. 29 In
determining the actual irreparable harm that may be occasioned to the marine environment,
scientific evidence does not often back the concept of irreparable harm therefore appropriate
measures may suffice.30

An important far-field consequence of largescale fertilization with limiting nutrients (e.g. with
iron in a high nutrient region) involves the depletion of other non-limiting nutrients, such as
nitrate or phosphate. This depletion can, in turn, reduce the productivity of remote regions
downstream of the fertilization location, particularly where natural sources of the fertilizing
nutrient are available (e.g. iron from shelf sea sediments or atmospheric dust) This potential
far-field impact has been referred to as ‘nutrient robbing’. 31 Thus, it is possible that fertilization
of an open ocean location in international waters could reduce productivity around islands and
productivity is indicated. These reductions could have significant consequences, including a
re-distribution or overall decrease in fish production. In its diplomatic note to Rinnuco, Aeolia
put forward its concern that,

‘Such a project could upset the entire food web and negatively impact the marine biodiversity
of the Muktuk Ocean. 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’ (R. at 13)

The findings from small scale fertilization experiments cannot be directly scaled up to the much
larger scales envisioned for commercial and geoengineering applications. Purposeful
fertilization on a scale large enough to cause a measurable change in atmospheric carbon
dioxide concentration will also cause major alterations to the structure of regional planktonic

29
Article 41, Statute of the International Court of Justice
30
Article 290(1) of the LOS Convention gives provisions for the Tribunal to order provisional measures to prevent
serious harm
31
Report Commissioned by the Intergovernmental Oceanographic Commission IOC/UNESCO, Ocean
Fertilization, A Scientific Summary for Policy Makers, Paris (IOC/BRO/2010/2)
 22

ecosystems, since large-scale sequestration of carbon requires a major shift in plankton

community composition. If large-scale fertilization were to lead to substantive additional CO2
sequestration at depth, this would increase the acidification of ocean interior waters. Such
changes would alter the depth at which carbonate biominerals start to dissolve, potentially
restricting the habitat of deep-ocean organisms that build shells and other structures out of these
biominerals, e.g. deep-sea corals.32

IN ITS ACTIONS RINUCCO IS DENYING THE ATTAINMENT OF

SUSTAINABLE DEVELOPMENT BY VIOLATING EQUITY

Rinnuco’s responsibility towards intergenerational equity can be found under Article 3(1) of
the United Nations Framework Convention to Climate Change (UNFCC) as does the last pre-
ambular paragraph to the 1992 CBD. Similarly, Principle 3 of the 1992 Rio Declaration states
that, “the right to development must be fulfilled so as to equitably meet developmental and
environmental needs of present and future generations”. Some national Courts have referred
to the right of future generations in cases before them; the Supreme Court of the Republic of
the Philippines decided in the Minors Oposa case33in considering the concept of
intergenerational responsibility stated that, ‘every generation has a responsibility to the next to
preserve that balance necessary for the full enjoyment of a balanced and healthful ecology’,

Pursuant to the fact that both parties are signatories to the UNFCC, it is important to note the
concern in its preamble that human activities have been substantially increasing the
atmospheric concentrations of greenhouse gases, that these increases enhance the natural
greenhouse effect, and that this will result on average in an additional warming of the Earth’s
surface and atmosphere and may adversely affect natural ecosystems and humankind. In 2007,
at the 30th Meeting of the Scientific Group of the London Convention and the 1st Meeting of
the Scientific Group of the London Protocol, the issue of large-scale ocean iron fertilization
operations was considered by the meeting, leading to the release of a ”Statement of Concern”,
which noted the recent commercial interest in the large-scale fertilization of ocean waters in
order to sequester CO2; the indication by the Intergovernmental panel on Climate Change
(IPCC) of ocean fertilization as a potential but largely speculative strategy for removing carbon
dioxide from the atmosphere; and noted with concern the potential for large-scale ocean iron

32
Report Commissioned by the Intergovernmental Oceanographic Commission IOC/UNESCO, Ocean
Fertilization, A Scientific Summary for Policy Makers, Paris (IOC/BRO/2010/2)
33
Minors Oposa v. Secretary of the Department of Environmental and Natural Resources, (1994)
 23

fertilization to have negative impacts on the marine environment and human health.34 The
actions taken by Rinucco on the question are not taking into consideration the health of the
ecological system and moreover, their actions are violating the rights of future generations of
Aeolia to enjoy this same balanced environment.

CONCLUSION
The Applicant, the Federal States of Aeolia respectfully requests the International Court of
Justice adjudge and declare that:

1. The court has jurisdiction over the ocean fertilization project in the Muktuk Ocean carried
out by Rinnuco;

2. Rinnuco is in breach of its obligations under international law; and

3. Order Rinnuco to cease and desist from its ocean fertilization project.

Respectfully Submitted,

X__________________

Representatives for the

Federal States of Aeolia

34
Report of the Thirtieth Meeting of the Scientific Group of the London Convention and the First Meeting of the
Scientific Group of the London Protocol