TEAM 1736A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO
OCEAN FERTILIZATION AND MARINE BIODIVERSITY
(FEDERAL STATES OF AEOLIA/REPUBLIC OF RINNUCO)

THE FEDERAL STATES OF AEOLIA

APPLICANT

THE REPUBLIC OF RINNUCO

RESPONDENT

MEMORIAL FOR THE

APPLICANT

THE 2017 STETSON MOOT COURT COMPETITION

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................................... vi

STATEMENT OF JURISDICTION ............................................................................. xiii
QUESTIONS PRESENTED ......................................................................................... xiv
STATEMENT OF FACTS .............................................................................................. xv
SUMMARY OF ARGUMENTS ..................................................................................... xvi
ARGUMENTS .....................................................................................................................1
I. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION OVER
THE DISPUTE. ................................................................................................................. 1
A. THE ICJ HAS JURISDICTION UNDER THE RELEVANT CONVENTIONS ........................ 1
1. THE ICJ HAS JURISDICTION UNDER THE UNCLOS ................................................ 2

a. Rinnuco’s iron fertilization project violates its duties under UNCLOS ......... 2
b. Rinnuco’s belated revocation of its consent does not divest the ICJ of
jurisdiction. .................................................................................................... 3
2. THE ICJ HAS JURISDICTION UNDER THE CBD........................................................ 4

a. The dispute involves the interpretation and application of the CBD ............ 4
3. THE ICJ HAS JURISDICTION UNDER THE UNFCCC, THE KYOTO PROTOCOL,

AND THE PARIS AGREEMENT.................................................................................. 5

a. Rinnuco has consistently invoked its obligations under the UNFCCC, the
Kyoto Protocol, and the Paris Agreement as justification for Rinnuco’s iron
fertilization project ......................................................................................... 5
b. Rinnuco is estopped from denying the ICJ’s jurisdiction under the above
conventions ................................................................................................... 6
B. RINNUCO MAY NOT INVOKE THE LONDON PROTOCOL TO PREVENT THE ICJ
FROM ACQUIRING JURISDICTION OVER THE DISPUTE ............................................. 6
1. THE LONDON PROTOCOL IS NOT THE ONLY CONVENTION GOVERNING
OCEAN IRON FERTILIZATION ................................................................................ 7
2. OCEAN IRON FERTILIZATION VIOLATES UNCLOS AND CBD ........................ 7

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3. THE DISPUTE ARISES UNDER UNCLOS, CBD, UNFCCC, KYOTO

PROTOCOL, AND PARIS AGREEMENT, IN ADDITION TO LC/LP ................ 8
4. RINNUCO CANNOT INVOKE THE RULE OF LEX SPECIALIS TO LIMIT THE ICJ’S
JURISDICTION TO THE LC/LP. .............................................................................. 8

C. THE SOUTHERN BLUEFIN TUNA AND FISHERIES JURISDICTION CASES CITED BY

RINNUCO CONFIRM THAT THE ICJ HAS JURISDICTION OVER THIS DISPUTE. ............. 9

1. SOUTHERN BLUEFIN TUNA .............................................................................. 9

2. FISHERIES JURISDICTION ................................................................................. 10

II. THE REPUBLIC OF RINNUCO VIOLATED INTERNATIONAL LAW ............ 11

A. RINNUCO VIOLATED ITS OBLIGATIONS UNDER UNCLOS, CBD, LC/LP IN

RELATION TO UNCLOS, AND CMS IN RELATION TO UNCLOS AND CBD ............ 11

1. RINNUCO VIOLATED ITS OBLIGATIONS UNDER UNCLOS. ............................. 11
a. Rinnuco breached its obligation to protect and preserve the marine
environment ............................................................................................. 11
b. Rinnuco failed to take strict measures for the conservation and
management of marine mammals, especially cetaceans, in its exclusive
economic zone ......................................................................................... 13
c. Rinnuco transformed atmospheric pollution to marine pollution ............ 14
d. Rinnuco violated its obligation to take the necessary measures to prevent,
reduce, and control marine pollution by dumping ...................................... 14
e. Rinnuco violated its obligation to give due regard to the rights of Aeolia in
expoloiting a shared resource .................................................................... 15
f. UNCLOS mandates that national laws, regulations and measures to prevent,
reduce and control marine pollution shall be no less effective than the global
rules and standards ................................................................................... 16
2. RINNUCO VIOLATED ITS OBLIGATIONS UNDER THE CBD. .............................. 18
a. Rinnuco’s iron fertilization project is contrary to the conservation and
sustainable use of biological diversity ......................................................... 18
b. Rinnuco failed to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States ............................ 19

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c. Rinnuco violated its duty of in-situ conservation ..................................... 20

d. Rinnuco failed to comply with the requirements of an Environmental
Impact Assessment ................................................................................... 21
e. Rinnuco violated its duty to protect the customary use of biological
resources in accordance with traditional cultural practices of Aeolia ............ 23
B. RINNUCO CAUSED TRANSBOUNDARY HARM AND VIOLATED THE PRECAUTIONARY
PRINCIPLE ................................................................................................................. 23
1. RINNUCO CAUSED TRANSBOUNDARY HARM ................................................... 23
a. The harm was a result of human activity ............................................... 24
b. There exists a physical relationship between the activity concerned and the
harm caused ............................................................................................ 25
c. There was a transboundary transfer of the harmful effect. ..................... 25
d. Rinnuco’s iron fertilization project involves a risk of causing significant
harm ........................................................................................................ 25
2. RINNUCO VIOLATED THE PRECAUTIONARY PRINCIPLE [“PP”] UNDER

CONVENTIONAL AND CUSTOMARY INTERNATIONAL LAW .................................... 26

a. Rinnuco failed to observe precautionary principle under the
London Protocol ...................................................................................... 27
b. Rinnuco failed to observe the precautionary principle under CBD ......... 27
c. Rinnuco failed to observe the precautionary principle as customary
international law ....................................................................................... 28
i. Rinnuco’s iron fertilization project poses a threat of environmental
damage .......................................................................................... 29
ii. The harm brought about by Rinnuco’s iron fertilization project is of
a serious and irreversible character ................................................... 29
iii. There exists scientific uncertainty, such that no causal link between
the Rinnuco’s iron fertilization project and environmental damage can
be established, requiring the application of PP ................................. 29
C. RINNUCO CANNOT INVOKE ITS DOMESTIC LEGAL SYSTEM TO JUSTIFY NON-
COMPLIANCE WITH ITS OBLIGATIONS UNDER INTERNATIONAL LAW .................... 30

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1. A state may not invoke the provisions of its internal law as justification for its
failure to perform a treaty. .................................................................................... 31
2. Rinnuco cannot invoke its failure to adopt the necessary implementing
legislation as justification for failure to comply with the Assessment Framework
provided by Resolution LC-LP.2 (2010) ............................................................... 31
D. RINNUCO CANNOT INVOKE THE PERSISTENT OBJECTOR RULE ............................ 32
1. The persistent objector rule is not applicable ................................................ 32
E. RINNUCO CANNOT INVOKE ITS OBLIGATIONS UNDER CLIMATE CHANGE
CONVENTIONS AS JUSTIFICATION FOR BREACH OF ITS OBLIGATIONS UNDER
INTERNATIONAL LAW ............................................................................................. 33
1. Iron fertilization will not enable Rinnuco to comply with its obligations under
the UNFCCC and related climate change conventions ..................................... 33
2. Breach of one treaty in order to comply with another is contrary to pacta sunt
servanda ............................................................................................................... 34
3. Alleged compliance with its obligations under the UNFCCC and related
climate change conventions does not justify Rinnuco’s violation of its duty not
to cause transboundary harm and the precautionary principle .......................... 35

CONCLUSION AND PRAYER FOR RELIEF ............................................................ 36

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Appendices I and II of the Convention on the Conservation of 14

Migratory Species of Wild Animals, appendix II, Feb. 23, 2012.

Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 79 1, 4, 7, 8, 10, 12,

19, 20, 21, 22,
23, 24, 25, 27,
28, 29, 35, 36

Vienna Convention on the Law of Treaties, 23 May 1969, 1155 8, 32, 35

U.N.T.S. 331.

Statute of the International Court of Justice, 18 April 1946, 33 U.S.T.S. 1, 35

993

United Nations Framework Convention on Climate Change, 9 May 1, 5, 8, 10, 33,

1992, 1771 U.N.T.S. 107 35

United Nations Convention on the Law of the Sea, 10 December 1982, 1, 2, 3, 6, 7, 8, 9,

1833 U.N.T.S. 3. 10, 11, 12, 13,
14, 15, 16, 24,
34, 35
1972 Convention on the Prevention of Marine Pollution By Dumping 16
of Wastes and Other Matter, 29 December 1972, 1046 U.N.T.S. 120

1996 Protocol to the Convention on the Prevention of Marine 6, 7, 9, 10, 16,

Pollution By Dumping of Wastes and Other Matter, 7 November 1996, 27
2006 A.T.S. 11

Kyoto Protocol to the United Nations Framework Convention on 1, 2, 5, 6, 8

Climate Change, 11 December 1997, 2303 U.N.T.S. 48

Convention on the Conservation of Migratory Species of Wild Animals, 11, 13, 14, 34
3 June 1979, 1651 U.N.T.S. 333.

Convention for the Conservation of Southern Bluefin Tuna, 20 May 10

1994, 1819 U.N.T.S 360

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U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

Report of the Int’l Law Comm’n, Articles on Prevention of 24

Transboundary from Hazardouse Activities, 53rd Sess., Apr. 23–June 1,
July 2–Aug. 10, 2001, 202-03, UN Doc. A/56/10; GAOR, 56th Sess.,
Supp. 10 (2001).

Paris Agreement, FCCC/CP/2015/10/Add.1 (13 December 2015) 5, 6, 8

UNEP/CBD/COP/DEC/IX/16 (9 October 2008) 4, 20

UNEP/CBD/COP/DEC/X/33 (29 October 2010) 4, 20

UNEP/CBD/COP/DEC/XI/20 (5 December 2012) 4, 20

U.N. General Assembly Resolution, Oceans and the Law of the Sea, 17
G.A. Res. 62/215, 62nd Sess. (22 December 2007)

Resolution LC/LP.1 (2008) on the Regulation of Ocean Fertilization 16

(31 October 2008)

Resolution LC/LP.2 (2010) on the Assessment Framework for 16, 31, 32

Scientific Research Involving Ocean Fertilization (14 October 2010)

Resolution LP.4(8) on the Amendment to the London Protocol To 16

Regulate the Placement of Matter for Ocean Fertilization and Other
Marine Geoengineering Activities (18 October 2013)

Rio Declaration on Environment and Development, U.N. Doc. 28

A/CONF.151/5/Rev.1 (16 June 1992)

Stockholm Declaration, U.N. Doc. A/CONF.48/14/Rev.1 (16 June 24

1972)

JUDICIAL DECISIONS

International Cases and Arbitral Decisions

Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4, 22. 19, 24

Exchange of Greek and Turkish Populations (Greece v. Turkey), 31

Advisory Opinion, 1925 P.C.I.J., Ser. B, No. 10.

Fisheries Jurisdiction Case (Spain v. Can.), 1998 I.C.J. Rep. 432 10

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Gabčíkovo–Nagymaros Project (Hungary v. Slovakia), 1977 I.C.J. 7 34, 35

International Responsibility for the Promulgation and Enforcement of 31
Laws in Violation of the Convention, Advisory Opinion, OC-14/94,
Ser. A, No. 14, ¶35, 116 I.L.R. 320

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 24

I.C.J. 226 (1996).

North Sea Continental Shelf (Ger. v. Den.; Ger. v. Neth.), 1969 I.C.J. 3. 6

Southern Bluefin Tuna Case (N.Z. v. Japan, Aus. v. Japan), I.T.L.O.S. 6, 7, 9, 10

Case No. 3 (1999)

Trail Smelter Arbitral Decision (U.S. v. Can.), 3 R.I.A.A. 1905 24

(1938/1941).

Pulp Mills in the River Uruguay Case (Arg. v. Uru.), 2010 I.C.J. 55-56. 22

Barcelona Traction Case (Belgium v. Spain), 1970 I.C.J. para. 33-34. 6

Tinoco Arbitration (Great Britain v. Costa Rica), 1 U.N. Rep. Int’l Arb. 6
Awards 369 (1923)

Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. 8

(ser. B) No. 3 (Aug. 30).

Application of the Convention on the Prevention and Punishment of 3

the Crime of Genocide (Croatia v. Serbia), Preliminary Objections,
Judgment, I.C.J. Reports 2008.

Alleged Violations of Sovereign Rights and Maritime Spaces in the 3, 8

Caribbean Sea (Nicaragua v. Colombia), 2016 I.C.J. Rep.

BOOKS

AUST, HANDBOOK OF INTERNATIONAL LAW (2010) 6

CASSESE, INTERNATIONAL LAW (2004). 27, 35

DE KLEMM, BIOLOGICAL DIVERSITY CONSERVATION AND THE LAW: 13

LEGAL MECHANISMS FOR CONSERVING SPECIES AND ECOSYSTEMS
(1993).

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FREESTONE & HEY, THE PRECAUTIONARY PRINCIPLE AND 28

INTERNATIONAL LAW (1995).

HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (2003). 25

HERMAN, ET. AL., MARINE GEOLOGY AND OCEANOGRAPHY OF THE 25

ARCTIC SEAS (1974).

HOHMANN, ET. AL., PRECAUTIONARY LEGAL DUTIES AND 24

PRINCIPLES OF MODERN INTERNATIONAL LAW (1994).

KOLB, THE INTERNATIONAL COURT OF JUSTICE (2013). 3, 9

KRASKA, MARITIME POWER AND THE LAW OF THE SEA: 15

EXPEDITIONARY OPERATIONS IN THE WORLD POLITICS (2011).

LAWS, AQUATIC POLLUTION: AN INTRODUCTORY TEXT ( 2ND ED. 19

1993).

RAYFUSE & SCOTT, INTERNATIONAL LAW IN THE ERA OF CLIMATE 7, 30

CHANGE (2012).

RIORDAN & CAMERON, INTERPRETING THE PRECAUTIONARY 28

PRINCIPLE (1994).

SCHACHTER, INTERNATIONAL LAW IN THEORY AND PRACTICE (1991). 24, 26

TROUWBORST, EVOLUTION AND STATUS OF PRECAUTIONARY 28

PRINCIPLE IN INTERNATIONAL LAW (2002).

ESSAYS, ARTICLES, AND JOURNALS

Abate & Greenlee, Sowing Seeds Uncertain: Ocean Iron Fertilization, Climate 14
Change, and the International Environmental Law Framework, 27 Pace Envtl.
L. Rev. 555 (2010).

Blackstock & Long, The Politics of Geoengineering, Science, New Series, 33

Vol. 327, No. 5965, 527 (2010).

Bluhm & Gradinger, Regional Viability in Food Availability for Arctic Marine 19
Mammals, Ecological Applications, 18(2) Supplement, pp. S77–S96
(2008).

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Boyd & Doney, The impact of climate change and feedback processes on the ocean 20
carbon cycle, in: Fasham (Ed.) Ocean biogeochemistry — the role of the ocean
carbon cycle in global change. Springer, Berlin, p. 157–193 (2003).

Branson, A Green Herring: How Current Ocean Fertilization Regulation 17

Distracts from Geoengineering Research, 54 Santa Clara L. Rev. 163 (2014).

Brunnée, COPing with Consent: Law-Making Under Multilateral 20

Environmental Agreements, 15 Leiden Journal Int’l. L. 21 (2002).

Buesseler, et.al., Ocean Iron Fertilization: Moving Forward in a Sea of 11

Uncertainty, Science, New Series, Vol. 319, No. 5860, 162 (2008).

Chisholm, et.al., Dis-Crediting Ocean Fertilization, Science, New Series, 14, 34

Vol. 294, No. 5541, 309-310 (2001).

Cullen & Boyd, Predicting and Verifying the Intended and Unintended 12, 15, 20
Consequences of Large-Scale Ocean Iron Fertilization, Mar. Ecol. Prog. Ser.
364, pp. 295-301(2008).

Dean, Iron Fertilization: A Scientific Review with International Policy 30

Recommendations, 32 Environs. Env. Law and Policy Journal 321 (2009).

De La Fayette, The London Convention 1972: Preparing for the Future, 13 16

Int’l J. Marine & Coastal L. 515 (1998).

Division for Ocean Affairs and the Law of the Sea Office of Legal 13
Affairs, The Law of the Sea: National Legislation on the Exclusive Economic
Zone, United Nations. New York (1993).

Forster, Some Legal and Institutional Aspects of Economic Utilization of 23

Wildlife, in: IUCN Sustainable Use Of Wildlife (a compendium of papers
arising from a 1993 workshop held during the 18th Session of the IUCN
General Assembly, Perth, Australia) (1993).

Fuhrman & Capone, Possible Biogeochemical Consequences of Ocean 34

Fertilization, Limnol. Oceanogr. 36, 1951-1959 (1991).

Gnanadesikan, et.al., Effects of Patchy Ocean Fertilization on Atmospheric 12

Carbon Dioxide and Biological Production, Global Biogeochem Cycles 17, p.
1050 (2003)

Hale & Dilling, Geoengineering, Ocean Fertilization, and the Problem of 11

Permissible Pollution, Science, Technology, & Human Values, Vol. 36, No.
2, 190-212 (2011).

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Henriksen, Conservation and Sustainable Use of Arctic Marine Biodiversity: 21

Challenges and Opportunities, Arctic Review on Law and Politics, vol. 1,
2/2010 p. 249-278. (2010)

Johnson, et.al., Is Ocean Fertilization Credible and Creditable?, Science, New 11

Series, Vol. 296, No. 5567, 467-468 (2002).

McNeely, Diverse nature, diverse cultures, People and the Planet 2.3, p. 11- 23
13 (1993).

Lampitt, et al., Ocean Fertilization: a Potential Means of Geoengineering?, Phil. 34

Trans. R. Soc. A 366 (2008).

Lueker, Coastal Upwelling Fluxes of O2, N2O, and CO2 Assessed From 12
Continuous Atmospheric Observations at Trinidad, California, Biogeosciences
1, pp. 101–111 (2004).

Radcliffe, Geoengineering: Ocean Iron Fertilization and the Law of the Sea, 16
L.L.M. Research Paper, Victoria University of Wellington (2014).

Smetacek & Naqvi, The Next Generation of Iron Fertilization Experiments in 11

the Southern Ocean, Phil. Trans. R. Soc. A 366, 3947-3967 (2008).

The Royal Society, Geoengineering the Climate: Science, Governance, and 11

Uncertainty, September 2009.

Wilson, Murky Waters: Ambiguous International Law for Ocean Fertilization 17

and Other Geoengineering, 49 Tex. Intl. Law Journal 507 (2014)

MISCELLANEOUS

Intergovernmental Oceanographic Commission - UNESCO (IOC - 17

UNESCO), Statement of the IOC Ad Hoc Consultative Group on Ocean
Fertilization, June 2008.

Woodgate, R., Arctic Ocean Circulation: Going Around at the Top of the World 25
(2013), available at
http://www.nature.com/scitable/knowledge/library/arctic-ocean-
circulation-going-around-at-the-102811553 (last accessed: 23 October
2016).

IUCN Guidelines for Applying the Precautionary Principle to 20

Biodiversity Conservation and Natural Resource Management, IUCN
Council, 67th Meeting, (2007).

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Romm, J., Nature: Ocean fertilization for geoengineering “should be abandoned ,” 16

https://thinkprogress.org/nature-ocean-fertilization-for-
geoengineering-should-be-abandoned-e7f918b516ef#.5n919iu7j (last
accessed: 13 September 2016).

Omand, Controversial Haida Gwaii ocean fertilizing experiment pitched to Chile, 17

CBC News, 24 April 2016, available at
http://www.cbc.ca/news/canada/british-columbia/haida-gwaii-ocean-
fertalizing-chile-1.3550783 (last accessed: 28 September 2016).

Barrera, Haida company facing controversy over Pacific Ocean iron dust dump says 17
it’s “creating life,” Geoengineering Motor, 17 October 2012, available at:
http://www.geoengineeringmonitor.org/2012/10/haida-company-
facing-controversy-over-pacific-ocean-iron-dust-dump-says-its-creating-
life/ (last accessed: 03 October 2016).

LOHAFEX: An Indo-German iron fertilization experiment - What are 17

the effects on the ecology and carbon uptake potential of the Southern
Ocean, 13 January 2009, available at: https://www.awi.de/en/about-
us/service/press/archive/lohafex-an-indo-german-iron-fertilization-
experiment-what-are-the-effects-on-the-ecology-and-carb.html (last
accessed: 29 August 2016).

Narwhal (Monodon monoceros) - Order Cetacea, available at: 20

https://sites.google.com/site/ordercetacea/home/narwhal (last
accessed: 12 October 2016).

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STATEMENT OF JURISDICTION

The Federal States of Aeolia [“Applicant”] and the Republic of Rinnuco [“Respondent”]

submit this dispute to this Honorable Court, pursuant to Article 36(1) of the Statute of the

International Court of Justice. On 4 April 2016, Applicant filed an application instituting

proceedings against Respondent, to which Respondent filed its Preliminary Objection on 10 May

2016. On 11 July 2016, Applicant and Respondent submitted a Joint Written Statement to the

Registrar, requesting that the Court decide the jurisdictional questions and merits of this matter

on the basis of the rules and principles of general international law, as well as any applicable

treaties, and that the Court to determine the legal consequences, including the rights and

obligations of the Parties, arising from any judgment on the questions presented in this matter.

The Registrar addressed a notification to the parties on 23 June 2016.

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QUESTIONS PRESENTED

I.

WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION OVER

THE DISPUTE.

II.

WHETHER THE REPUBLIC OF RINNUCO VIOLATED INTERNATIONAL LAW BY

IMPLEMENTING ITS OCEAN FERTILIZATION PROJECT

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STATEMENT OF FACTS

The Federal States of Aeolia [“Aeolia”] and Republic of Rinnuco [“Rinnuco”] are

neighboring coastal states surrounded by the Muktuk Ocean(R¶1). Both are developed countries

with diverse, industrialized economies and large fishing industries(R¶2).

Rinnuco unilaterally announced its plans to dump tons of iron into the Muktuk Ocean.

Aeolia immediately objected on the ground that such dumping would damage the marine

environment(R¶12). However, Rinnuco refused to listen(R¶14) and dumped 15,000 kg of iron in

a 2,000-km2 area located approximately 150–200 miles off Rinnuco’s coast(R¶16). Rinnuco also

planned to conduct further dumping in successively larger areas(R¶15).

Barely two months later, nine narwhals were found dead off the coast of Rinnuco(R¶20).

It was the first recorded instance of multiple narwhals being found dead off Rinnuco’s coast.

Notably, narwhals are significant to Aeolia’s ecotourism and culture, with one coastal town

holding an annual festival celebrating narwhals(R¶3). The dumping of iron by Rinnuco was the

only recent disturbance in the Muktuk Ocean.

After more than a year of fruitless negotiation, Aeolia requested that Rinnuco agree to

submit the dispute to the ICJ but Rinnuco refused(R¶22), leading to the filing of this application

by Aeolia.

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SUMMARY OF ARGUMENTS

The ICJ has jurisdiction. Aeolia and Rinnuco issued declarations binding them to submit

disputes arising under UNCLOS, CBD, UNFCCC, and Kyoto Protocol to the ICJ. Rinnuco

cannot invoke the London Protocol to prevent the ICJ from acquiring jurisdiction over the

dispute, as it is not the sole instrument governing the dispute, and the cases cited by Rinnuco are

inapplicable.

Rinnuco violated international law. It failed to comply with its obligation under UNCLOS

to protect and preserve the marine environment; take appropriate and necessary measures for the

conservation and protection of living resources in the marine ecosystem; not to transform one

type of pollution from another; reduce, control, and prevent pollution by dumping; protect a

shared resource; and to control marine pollution following global rules and standards.

Rinnuco likewise violated its obligation under CBD to ensure conservation and sustainable

use of biological diversity; ensure that activities within a State’s jurisdiction do not cause damage

to the environment of other States; conduct in-situ conservation; comply with EIA requirements;

and protect customary use of biological resources in accordance with traditional cultural practices.

Rinnuco caused transboundary harm and violated the precautionary principle.

Rinnuco cannot invoke its domestic legal system, the persistent objector rule, and climate

change conventions to justify breach of its obligations under international law.

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ARGUMENTS

I. THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION OVER

THE DISPUTE.

Under Art. 36(1) of the Statute of the International Court of Justice [“ICJ”], the Court has

jurisdiction over all matters specially provided for in treaties and conventions in force.1 Jurisdiction

over this dispute is thus conferred on the ICJ by compromissory clauses of the relevant conventions,

under which Aeolia and Rinnuco consented to the ICJ’s jurisdiction. Rinnuco is estopped from

denying this consent, and cases it cites are inapplicable to the case at bar.

A. THE ICJ HAS JURISDICTION UNDER THE RELEVANT CONVENTIONS

The parties issued declarations binding them to submit disputes arising out of the application

and interpretation of the United Nations Convention on the Law of the Sea [“UNCLOS”], 2

Convention on Biological Diversity [“CBD”],3 United Nations Framework Convention on Climate

1 Statute.of.the.International.Court.of.Justice,.art..36(1),.18.April.1946,.33.U.S.T.S..993.[hereinafter.ICJ.Statute].
2.United.Nations.Convention.on.the.Law.of.the.Sea,.10.December.1982,.1833.U.N.T.S..3.[hereinafter.UNCLOS];.Record

...¶9.

3 Convention.on.Biological.Diversity,.5.June.1992,.1760.U.N.T.S..79.[hereinafter.CBD];.Record¶6.

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Change [“UNFCCC”], 4 and Kyoto Protocol to the ICJ. 5 The parties have complied with the

prerequisite of negotiation under these conventions.6

1. THE ICJ HAS JURISDICTION UNDER THE UNCLOS

Both parties granted the ICJ jurisdiction to settle disputes concerning the interpretation or

application of UNCLOS under Article 287.7

a. Rinnuco’s iron fertilization project [“RIFP”] violates its duties under

UNCLOS.

The dispute involves interpretation and application of Rinnuco’s duty to 1) take measures to

prevent, reduce and control pollution of the marine environment;8 2) protect and conserve highly

migratory species 9 and marine mammals; 10 3) refrain from transferring damage or hazards or

transforming one type of pollution into another; 11 4) prevent, reduce, and control pollution by

4.United.Nations.Framework.Convention.on.Climate.Change,.9.May.1992,.1771.U.N.T.S..107.[hereinafter.UNFCCC];….

..Record¶10.

5.Kyoto.Protocol.to.the.United.Nations.Framework.Convention.on.Climate.Change,.11.December.1997,.2303.U.N.T.S....

..48.[hereinafter.Kyoto.Protocol];.Record¶10.

6 Record¶¶¶14,18,21.

7 Record¶9

8 UNCLOS,.art..194.

9 UNCLOS,.art..64.

10 UNCLOS,.art..65.

11 UNCLOS,.art..195.

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dumping;12 5) give due consideration to rights of other States which by reason of their geographical

situation may be adversely affected thereby;13 6) give due regard to rights and duties of other States in

protecting a shared resource;14 and 7) take measures to prevent, reduce, and control marine pollution

no less effective than global rules and standards,15 all of which Rinnuco violated.16

b. Rinnuco’s belated revocation of its consent does not divest the ICJ of

jurisdiction.

When read in conjunction with Article 36(1) of the ICJ Statute, a treaty provision may confer

jurisdiction on the ICJ.17 Such provision must be in force on the date when the application is filed

with the Court,18 but if it ceases to be in force between the parties after the filing of application, that

fact does not deprive the ICJ of jurisdiction.19

In this case, the ICJ had jurisdiction at the time Aeolia filed its application on 4 April 2016, 20

pursuant to the parties’ written declarations submitting disputes arising under UNCLOS to the

12 UNCLOS,.art..210.

13 UNCLOS,.art..210(5).

14 UNCLOS,.art..56(2).

15 UNCLOS,.art..210(6).

16 See.infra.Part.II.A.1.

17 Robert.Kolb,.The.International.Court.of.Justice,.at.414.(2013).

18.Application.of.the.Convention.on.the.Prevention.and.Punishment.of.the.Crime.of.Genocide.(Croatia.v..

...Serbia),.Preliminary.Objections,.2008.I.C.J..437,¶79-80

19.Alleged.Violations.of.Sovereign.Rights.and.Maritime.Spaces.in.the.Caribbean.Sea.(Nicar..v..Colom.),.2016.I.C.J..155…..

...(Mar..17)

20 Record¶23.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

jurisdiction of the ICJ.21 The subsequent effectivity of Rinnuco’s revocation of consent on 28 June

201622 is thus immaterial to the Court’s jurisdiction .

2. THE ICJ HAS JURISDICTION UNDER THE CBD

Both parties declared in writing that they would submit disputes concerning the interpretation

or application of CBD to the ICJ23 pursuant to CBD.24

a. The dispute involves the interpretation and application of the CBD.

The dispute requires interpretation and application of Rinnuco’s duty to ensure that activities

within its jurisdiction or control do not cause damage to the environment of other States or of areas

beyond the limits of national jurisdiction, 25 undertake in-situ conservation, 26 conduct impact

assessment and minimize adverse impacts,27 and protect and encourage customary use of biological

21 Supra.note.7..
22 See.UNCLOS,.art..287

23 Record¶6.

24 CBD, art..27.

25 CBD,.art..3.

26 CBD,.art..8.

27 CBD,.art..14.

4
 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

resources in accordance with traditional cultural practices that are compatible with conservation or

sustainable use requirements,28 which it violated.29

Furthermore, interpretation and application of Rinnuco’s duties under Decisions

IX/16,.X/33,.XI/20 of CBD30 is required. Hence, the dispute must be settled under the CBD.

3. THE ICJ HAS JURISDICTION UNDER THE UNFCCC, THE KYOTO PROTOCOL,

AND THE PARIS AGREEMENT

Both parties declared in writing that they will submit disputes arising from interpretation or

application of UNFCCC and Kyoto Protocol to the ICJ.31 The provisions of Article 14 of UNFCCC

on dispute settlement also apply mutatis mutandis to Paris Agreement; 32 thus, the ICJ also has

jurisdiction under said Agreement.

a. Rinnuco has consistently invoked its obligations under the UNFCCC, the

Kyoto Protocol, and the Paris Agreement as justification for Rinnuco’s iron

fertilization project. 33

28 CBD,.art..10(C).

29 See.infra.Part.II.A.2.

30 See.infra.Part.II.A.2.c.

31 Record¶10.

32 UNFCCC,.art..14(8);.Paris.Agreement,.art..24,.12.December.2015..

33 Record¶14.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

According to Rinnuco, RIFP will enable it to fulfill its obligations under these conventions, 34

as RIFP will allegedly mitigate climate change, generate potential carbon offsets that Rinnuco might

use to meet emission reduction targets or commitments,35 and result in carbon sequestration.36 The

dispute thus involves the interpretation and application of Rinnuco’s obligations under these

conventions.

b. Rinnuco is estopped from denying the ICJ’s jurisdiction under the above

conventions.

Estoppel is a general principle of law,37 recognized by ICJ and other tribunals.38 Having alleged

that its actions are justified under UNCLOS, Kyoto Protocol, and Paris Agreement, Rinnuco is

estopped from denying ICJ’s jurisdiction under these conventions. While the Paris Agreement had

not been ratified39 and was not yet effective at the time of RIFP, 40 Rinnuco itself puts its obligations

in issue and is estopped from denying ICJ’s jurisdiction under this Convention.

34 Record¶21.
35 Record¶21.

36 Record¶14.

37 Aust,.Handbook.of.International.Law.(2010).

38.See.Barcelona.Traction.(Belgium.v..Spain),.1970.I.C.J..50,.¶33,34;.Tinoco.Arbitration.(Great.Britain.v..Costa.Rica),…….

....1.U.N..Rep.Int’l.Arb..Awards.369.(1923);.North.Sea.Continental.Shelf.(Ger.v..Den.;.Ger..v..Neth.),.1969.I.C.J..3.

39 Record¶10.

40 Record¶21.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

B. RINNUCO MAY NOT INVOKE THE LONDON PROTOCOL TO PREVENT THE ICJ

FROM ACQUIRING JURISDICTION OVER THE DISPUTE.

There is no reason a State’s act may not violate obligations under more than one treaty.41

Given its scale, purposes, and effects, any dispute arising out of OIF cannot be settled under the

terms of a single treaty.

1. THE LONDON PROTOCOL [“LP”] IS NOT THE ONLY CONVENTION

GOVERNING OCEAN IRON FERTILIZATION

OIF has never been governed solely under the terms of any single convention, or the terms

of LP in particular. For instance, parties to both the London Convention/London Protocol

[“LC/LP”] and CBD have discussed OIF under the respective frameworks of each convention.42 The

relationship between OIF and harm to the marine environment has always been recognized. 43

2. OIF VIOLATES UNCLOS AND CBD.

Conclusion of an implementing convention, such as LC/LP, does not necessarily vacate

obligations imposed by the framework convention, such as UNCLOS .44 While the LC/LP specifies

41 Southern.Bluefin.Tuna.(N.Z..v..Japan,.Aus..v..Japan),.I.T.L.O.S..Case.No..3(1999).

42 Rosemary.Rayfuse.&.Shirley.V..Scott,.International.Law.in.the.Era.of.Climate.Change.(2012).

43 Id.

44 Southern.Bluefin.Tuna,.supra.note.41.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

and explains what broad obligations45 under UNCLOS entail, UNCLOS remains a source of these

obligations.

With respect to CBD, there is no reason RIFP cannot violate Rinnuco’s obligations under

both CBD and LC/LP. It is commonplace of international law and State practice for more than one

treaty to bear upon a particular dispute. There is no reason why a given act of a State may not violate

its obligations under more than one treaty.46

3. THE DISPUTE ARISES UNDER UNCLOS, CBD, UNFCCC, KYOTO PROTOCOL,

AND PARIS AGREEMENT, IN ADDITION TO LC/LP.

A dispute is a disagreement on a point of law or fact, a conflict of legal views or interests

between two persons.47 There is a dispute over the interpretation or application of a treaty if the

actions complained of can reasonably be measured against standards or obligations prescribed by that

treaty.48 It is beyond argument that RIFP can be measured against standards and obligations prescribed

by UNCLOS,.CBD, and climate change conventions, and not solely against those in LC/LP.

4. RINNUCO CANNOT INVOKE THE RULE OF LEX SPECIALIS TO LIMIT THE ICJ’S

JURISDICTION TO THE LC/LP.

45 See.supra.Part.I.A.1.a,.particularly.dumping.under.Art..210.of.UNCLOS.

46 Id.

47 Mavrommatis.Palestine.Concessions.(Greece.v..U.K.),.1924.P.C.I.J..(ser..B).No.3.(Aug..30)

48 Id.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

Under the Vienna Convention on the Law of Treaties [“VCLOT”], treaties must be

interpreted in light of their object and purpose.49 Provisions of treaties should be interpreted in such

a way as to render them effective.50 Rinnuco’s argument that the Court’s jurisdiction must be limited

to LC/LP as the convention most specific to OIF is contrary to these rules, as this would render

ineffective any other declaration of consent under other relevant conventions. Furthermore, the ICJ

has interpreted dispute settlement clauses in treaties as also covering provisions of other treaties

related to the treaty containing said clauses,51 contrary to Rinnuco’s overly restrictive reasoning.

C. THE SOUTHERN BLUEFIN TUNA AND FISHERIES JURISDICTION CASES CITED BY

RINNUCO CONFIRM THAT THE ICJ HAS JURISDICTION OVER THIS DISPUTE.

The Southern Bluefin Tuna and the Fisheries Jurisdiction cases cited by Rinnuco do not support its

contention that the ICJ lacks jurisdiction.

1. The Southern Bluefin Tuna52 case

Under Article 281(1) of UNCLOS, if States which are parties to a dispute concerning the

interpretation or application of UNCLOS have agreed to seek settlement of the dispute "by a peaceful

means of their own choice", the dispute settlement procedures53 of UNCLOS apply only (a) where no

49 Vienna.Convention.on.the.Law.of.Treaties,.art..31(1),.[1969].1155.U.N.T.S.331.[hereinafter.VCLOT].

50 Alleged.Violations.Of.Sovereign.Rights.And.Maritime.Spaces.In.The.Caribbean.Sea,.supra.note.19.

51 Kolb,.supra.note.17,.at.435-436.

52 Southern.Bluefin.Tuna,.supra.note.41.

53 See UNCLOS, Part XV.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

settlement has been reached by recourse to such means and (b) the agreement between the parties

"does not exclude any further procedure."54

Rinnuco’s argument that the reasoning of the Arbitral Tribunal in ruling that it had no

jurisdiction is applicable in the present case and supports its contention that the ICJ has no jurisdiction

under the LP, and thus no jurisdiction over the entire dispute, is incorrect, as there are several material

differences between the two disputes. First, Southern Bluefin Tuna involved a dispute arising under only

two conventions, UNCLOS and the Convention for the Conservation of Southern Bluefin Tuna

[“CCSBT”]. The present dispute arises under UNCLOS, CBD, UNFCCC, LC/LP, and custom.

Determination of the legality and consequences of RIFP will have important implications for

Rinnuco’s obligations under said conventions and custom, and for development of international law

governing OIF. Second, the dispute resolution provisions of the CCSBT and the LP are dissimilar.

While the CCSBT provides that “failure to reach agreement on reference to the International Court

of Justice or to arbitration shall not absolve parties to the dispute from the responsibility of continuing

to seek to resolve it by any of the various peaceful means referred to in paragraph 1 above,”55 LP

imposes no such duty, creating a situation where application of Article 281(1) would leave the parties

with no possible forum from which to obtain relief. Such a situation is unacceptable in the present

case, given RIFP’s scale and potential for destruction.

2. The Fisheries Jurisdiction56 case

54 Id.

55.Convention.for.the.Conservation.of.Southern.Bluefin.Tuna,.art..16,.[1994].1819.U.N.T.S.360.[hereinafter.CCSBT]

56 Fisheries.Jurisdiction.(Spain.v..Can.),.1998.I.C.J..Rep..432.(Dec..4).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

This case involved interpretation of a reservation made to an acceptance of jurisdiction under

Article 36 of the ICJ Statute. The ICJ held that it had no jurisdiction due to the reservation to

acceptance of jurisdiction made by Canada.57

Rinnuco alleges that this case supports its view that the ICJ does not have jurisdiction.

However, the case is patently inapplicable to the present dispute, which arises under several

conventions with various dispute settlement clauses, and does not involve the interpretation of a

reservation to jurisdiction.

57 Id.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

II. THE REPUBLIC OF RINNUCO VIOLATED INTERNATIONAL LAW.

OIF is Carbon Dioxide Removal [“CDR”] geoengineering58 aimed at reducing atmospheric

carbon concentrations by dumping iron in the ocean to encourage plankton bloom.59 In conducting

RIFP, Rinnuco violated its obligations under UNCLOS, CBD, LC/LP in relation to UNCLOS, and

Convention on Migratory Species [“CMS”] in relation to UNCLOS and CBD. Rinnuco also caused

transboundary harm and violated the precautionary principle [“PP”].

A. RINNUCO VIOLATED ITS OBLIGATIONS UNDER UNCLOS, THE CBD, THE LC/LP IN

RELATION TO UNCLOS, AND THE CMS IN RELATION TO UNCLOS AND CBD.

1. RINNUCO VIOLATED ITS OBLIGATIONS UNDER UNCLOS.

a. Rinnuco breached its obligation to protect and preserve the marine

environment.60

Parties are required to undertake all possible measures necessary to prevent, reduce and

control pollution of the marine environment from any source,61 including those necessary to protect

58.Geoengineering.the.Climate:.Science,.Governance,.and.Uncertainty.(The.Royal.Society),.Sept..2009.(defining.Geoengineering.as…

....“deliberate.large.scale.manipulation.of.the.planetary.environment.to.counteract.anthropogenic.climate.change”).

59.Benjamin.Hale.&.Lisa.Dilling,.Geoengineering,.Ocean.Fertilization,.and.the.Problem.of.Permissible.Pollution,.36.Science,………....

....Technology,.&.Human.Values.190.(2011)..See.also.V..Smetacek,.The.Next.Generation.of.Iron.Fertilization.Experiments.in.the...
....Southern.Ocean,.366.Philosophical.Transactions.of.The.Royal.Society.A;.Karl.Johnson,.et.al.,.Is.Ocean.Fertilization.Credible..
....and.Creditable?,.296.Science,.New.Series.467.(2002);.Ken.Buesseler,.et.al.,.Ocean.Iron.Fertilization:.Moving.Forward.in.a.Sea.of.
...Uncertainty,.319.Science,.New.Series,.162.(2008).

60 UNCLOS,.art..192.

61 UNCLOS,.art..194(1).

12
 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

and preserve rare or fragile ecosystems, as well as habitats of depleted, threatened or endangered

species and other forms of marine life.62

“Pollution” is introduction by man, directly or indirectly, of substances or energy into the

marine environment, which results or is likely to result in deleterious effects such as harm to living

resources and marine life.63

The dumping of iron conducted by Rinnuco falls under the above provision. Studies note

several possible deleterious effects of large-scale OIF, such as decrease in productivity of plankton

communities, leading to a decrease in the ocean’s ability to support fisheries, 64 and lowered

concentrations of oxygen below the surface layer, 65 which could lead to the decimation of fish

populations.66

b. Rinnuco failed to take strict measures for conservation and management

of marine mammals, especially cetaceans, 67 in its exclusive economic

zone.

62 UNCLOS,.art..194(5).

63 UNCLOS,.art..1(1)(4).
64.Anand.Gnanadesikan,.et.al.,.Effects.of.Patchy.Ocean.Fertilization.on.Atmospheric.Carbon.Dioxide.and.Biological.Production,.17…

Global.Biogeochem.Cycles.19.(2003).

65.John.J..Cullen.&.Phillip.C..Boyd,.Predicting.and.Verifying.the.Intended.and.Unintended.Consequences.of.Large-

Scale.Ocean.Iron.Fertilization,.364.Marine.Ecology.Progress.Series.295.(2008).

66.T..J..Lueker,.Coastal.Upwelling.Fluxes.of.O ,.N2O,.and.CO2.Assessed.From.Continuous.Atmospheric.Observations.at.Trinidad,…….
2

....California,.1.Biogeosciences.101.(2004).

67 UNCLOS,.art..65.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

Rinnuco has an affirmative duty to take special measures for the protection and conservation

of living resources in the marine ecosystem.68 Narwhals, as marine mammals, enjoy special protection

under Article 65 of UNCLOS.69

Marine mammals are also the subject of several agreements, including CMS, to which both

parties are bound.70 The purpose of the CMS is conservation and effective management of migratory

species.71

Narwhals are Appendix II species under CMS,72 and both parties are their Range States.73 CMS

contains guidelines for creating agreements that Range States should endeavor to conclude, listing

measures to be taken by Range States.74 These measures are intended to ensure conservation and

management of migratory species by the parties, 75 and include protection of habitats from

disturbances76 and prevention, reduction, or control of the release into the habitat of migratory species

of substances harmful to them.77

68.Division.for.Ocean.Affairs.and.the.Law.of.the.Sea.Office.of.Legal.Affairs,.The.Law.of.the.Sea:.National.Legislation.on.the….

...Exclusive.Economic.Zone,.United.Nations.(1993).

69 Id.

70 Record¶8.
71.Convention.on.the.Conservation.of.Migratory.Species.of.Wild.Animals,.Preamble,.¶3,.3.June.1979,.1651.U.N.T.S..333..

....[hereinafter.CMS]..
72 CMS,.Appendix.II.

73 Record¶8.

74 CMS,.art..V.

75 Cyril.De.Klemm,.Biological.Diversity.Conservation.and.the.Law.(1993).

76 CMS,.art..V(5e).

77 CMS,.art..V(5i).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

RIFP is clearly contrary to such measures. By dumping iron into the Muktuk Ocean,

completely disregarding possible deleterious effects on the environment of narwhals, Rinnuco violated

its obligation to take measures for conservation and management of marine mammals.

c. Rinnuco transformed atmospheric pollution to marine pollution. 78

In conducting RIFP, Rinnuco violated its obligation not to transform one type of pollution to

another79 and to take the necessary measures to minimize the release of toxic, harmful and noxious

substances from or through the atmosphere to the fullest possible extent.80 OIF, by design, introduces

anthropogenic CO2 from the atmosphere into the ocean,81 leading to increased marine levels of nitrous

oxide and methane, damaging the ocean floor and marine biodiversity.82

d. Rinnuco violated its obligation to take the necessary measures to prevent,

reduce, and control marine pollution by dumping. 83

“Dumping” is “any deliberate disposal of wastes or other matter from vessels, aircraft,

platforms or man-made structures at sea.”84 Rinnuco’s deliberate disposal of iron in the ocean is clearly

78 CMS,.art..V(5i).
79 UNCLOS,.art..195.

80 UNCLOS,.art..194(3)(a).

81 Sallie.W..Chisholm,.et.al.,.Dis-Crediting.Ocean.Fertilization,.294.Science.309.(2001).

82.Randall.S..Abate.&.Andrew.B..Greenlee,.Sowing.Seeds.Uncertain:.Ocean.Iron.Fertilization,.Climate.Change,.and.the.International..

...Environmental.Law.Framework,.27.Pace.Envtl..L..Rev..555.(2010).

83 UNCLOS,.art..210.

84 UNCLOS,.art..1(5)(a).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

dumping prohibited by UNCLOS. Rinnuco likewise failed to comply with its obligation85 to give due

consideration to other States that might be adversely affected by RIFP in Rinnuco’s EEZ by reason

of their geographical location.

e. Rinnuco violated its obligation to give due regard to the rights86 of Aeolia

in expoloiting a shared resource.

In exploiting shared resources in the EEZ, Rinnuco is required to give due regard to rights

of other States. “Due regard” requires all states, in exercising their freedoms, to refrain from acts that

might adversely affect the use of marine resources by other States.87 Rinnuco failed to give due regard

to Aeolia in conducting RIFP in the Muktuk Ocean, impairing the latter’s rights over a shared resource,

and in conducting RIFP despite Aeolia’s objections.88 Rinnuco also violated its duty to protect the

Muktuk Ocean as a shared resource, and instead deliberately interfered with and altered it.89

f. UNCLOS mandates that national laws, regulations and measures to

prevent, reduce and control marine pollution shall be no less effective

than global rules and standards.90

85 UNCLOS,.art..210(5)

86 UNCLOS,.art..56(2).

87 James.Kraska,.Maritime.Power.and.the.Law.of.the.Sea:.Expeditionary.Operations.in.World.Politics.(2011).

88 See.infra.Part II.D;.Record¶¶¶14,17,20.

89 Cullen.&.Boyd,.supra.note.65.

90 UNCLOS,.art..210(6).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

Global rules and standards governing OIF are universally considered to be those adopted

under the 1972 London Convention [“LC”],91 superseded by the LP,92 to which Rinnuco and Aeolia

are parties.93 By violating the rules and standards of LC/LP, which prescribes the proper framework

for assessing OIF projects, Rinnuco breached this duty.

Under Resolution LC-LP.1(2008), 94 OIF may only be considered for a permit if it is for

legitimate scientific research.95 Permissible OIF is limited to small-scale fertilization,96 as there exists

no adequate means to verify model predictions of the long-term side effects of OIF.97 In Resolution

LC-LP.2(2010),98 the parties adopted an Assessment Framework [“AF”] specific to OIF. In LP.4(8),99

the parties amended the LP, confirming that OIF specifically falls within the coverage of the LC/LP

and that the AF under LC-LP.2(2010) contains the rules and standards governing OIF. Rinnuco

disregarded the rules and standards of these Resolutions.100

91 Louise.De.La.Fayette,.The.London.Convention.1972:.Preparing.for.the.Future,.13.Int’l..J..Marine.&.Coastal.L..515.(1998).

92.Saadi.Radcliffe,.Geoengineering:.Ocean.Iron.Fertilization.and.the.Law.of.the.Sea,.Victoria.University.of.Wellington.(2014).

93 Record¶7.

94 Resolution.LC-LP.1.(2008).on.the.Regulation.of.Ocean.Fertilization.(31.October.2008).

95 Id.
96 Id.

97.Dr..Joe.Romm,.Nature:.Ocean.fertilization.for.geoengineering.“should.be.abandoned”.,.ThinkProgress.(2009),…………………

…https://thinkprogress.org/nature-ocean-fertilization-for-geoengineering-should-be-abandoned.

98.Resolution.LC-LP.2.(2010).on.the.Assessment.Framework.for.Scientific.Research.Involving.Ocean.Fertilization.

...(14.October.2010).[Hereinafter.LC-LP.2(2010)]

99.Resolution.LP.4(8).on.the.Amendment.to.the.London.Protocol.To.Regulate.the.Placement.of.Matter.for.Ocean………

....Fertilization.and.Other.Marine.Geoengineering.Activities.(18.October.2013).

100 Record¶18.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

RIFP is large-scale OIF clearly outside the bounds of permissible OIF. When considered in

terms of physical ocean processes, large-scale refers to a length of tens of kilometres.101 Past OIF

projects, including Haida Gwaii Projet (2012), 102 LOHAFEX (2009), 103 and EisenEx (2000), 104

conducted over varying ocean areas, were deemed large-scale OIF and either prohibited or

discontinued. RIFP’s first phase already covers an area significantly larger than the previous OIF

projects mentioned; each successively larger phase 105 would again constitute large-scale OIF in

violation of the LC/LP.

Rinnuco cites U.N. General Assembly Resolution 62/215106 to support its argument that RIFP

is not prohibited under international law. However, while said Resolution “[e]ncourages States to

support the further study and enhance understanding of OIF,” nowhere does it sanction violation of

global rules and standards governing OIF in order to promote such further study and understanding.

2. RINNUCO VIOLATED ITS OBLIGATIONS UNDER CBD.

101.Intergovernmental.Oceanographic.Commission-UNESCO,.Statement.of.the.IOC-AdHoc.Consultative.Group.on.Ocean.

…Fertilization.(June.2008).

102.Geordon.Omand,.Controversial.Haida.Gwaii.ocean.fertilizing.experiment.pitched.to.Chile,.CBC.News.(2016),.http://www.cbc.

ca/news/canada/british-columbia/haida-gwaii-ocean-fertalizing-chile-1.3550783.;.See.also.Barrera,.Haida.company.
facing.controversy.over.Pacific.Ocean.iron.dust.dump.says.it’s.“creating.life,”.Geoengineering.Motor.(2012),.http://www.geoengineer
ingmonitor.org/2012/10/haida-company-facing-controversy-over-pacific-ocean-iron-dust-dump-says-its-creating-life.

103.Michael.C..Branson,.A.Green.Herring:.How.Current.Ocean.Fertilization.Regulation.Distracts.from.Geoengineering.Research,.54…

….Santa.Clara.L..Rev..163.(2014);.Press.Release,.Alfred.Wegener.Institute,.LOHAFEX:.An.Indo-German.iron.
….fertilization.experiment.(2009).

104.Grant.Wilson,.Murky.Waters:.Ambiguous.International.Law.for.Ocean.Fertilization.and.Other.Geoengineering,.49.Tex..Int’l..Law

….Journal.507.(2014).

105 Clarifications,A16.

106 Oceans.and.the.Law.of.the.Sea,.G.A..Res..62/215,.U.N..Doc..A/RES/62/215.(22.December.2007).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

CBD 107 mandates conservation of biodiversity and sustainable use of its components,

emphasizing in situ conservation, or conservation of ecosystems and natural habitats and maintenance

and recovery of viable populations of species in their natural surroundings.108 In conducting RIFP,

Rinnuco acted contrary to these objectives and failed to perform its obligations under CBD.

a. RIFP is contrary to conservation and sustainable use of biological

diversity.

Parties are obliged to develop national plans and programmes for conservation and sustainable

use of biological diversity. 109 This necessarily includes the duty to formulate strategies to avoid

biodiversity loss. In complete contravention of this duty, Rinnuco dumped iron into the Muktuk

Ocean, causing biodiversity loss.

The death of the narwhals 110 is an Unusual Mortality Event [“UME’], which “involves a

significant die-off of any marine mammal population.”111 RIFP is the most likely cause of this UME,

given the amount of iron the narwhals consumed. Narwhals eat as much as 10% of their body mass

every day, their primary food being Greenland halibut, polar and Arctic cod, shrimp, and Gonatus

107 CBD,.art..1.

108 CBD,.art..2.

109 CBD,.art..6.

110 Record¶20.

111 Marine Mammal Protection Act,.§404.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

squid.112 Through the process of “biomagnification,”113 narwhals absorb the iron consumed by each

of these species. Hence, with no previous instance of multiple narwhals being found dead off

Rinnuco’s coast,114 no other recent disturbances in the Muktuk Ocean, and given narwhals’ diet, the

only logical conclusion is that RIFP caused these deaths. While this may be circumstantial evidence,

the ICJ has accepted circumstantial evidence to prove an assertion when based on a series of facts,

linked together and leading logically to a single conclusion.”115

b. Rinnuco failed to ensure that activities within its jurisdiction or control

do not cause damage to the environment of other States.116

Introduction of pollutants into aquatic systems during RIFP is a perturbation that can set off

a complicated series of biological and chemical reactions117 not limited to a defined area. In conducting

RIFP, Rinnuco affected not just the marine environment within its jurisdiction, but also that of other

States, particularly Aeolia. Given the large-scale impact of RIFP, unexpected and larger-scale changes

of ecosystems not limited to Rinnuco’s jurisdiction must be expected.118

112.Bodil.Bluhm.&.Rolf.Gradinger,.Regional.Viability.in.Food.Availability.for.Arctic.Marine.Mammals,.Ecological.Applications,

…18(2).Supplement.S77.(2008).

113 W.B..Neely,.Chemicals.in.the.Environment:.Distribution,.Transport,.Fate,.Analysis..Marcel Dekker 245.

114 Clarifications,A27.

115 Corfu.Channel.(U.K..v..Alb.),.1949.I.C.J..4,¶22.

116 CBD,.art..3.
117 Edward.Laws,.Aquatic.Pollution:.An.Introductory.Text.(2nd.ed..1993).

118.P.W..Boyd.&.S.C..Doney,.The.impact.of.climate.change.and.feedback.processes.on.the.ocean.carbon.cycle,.in:.Fasham.(Ed.).Ocean…

….biogeochemistry.—.the.role.of.the.ocean.carbon.cycle.in.global.change.(2003).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

c. Rinnuco violated its duty of in-situ conservation.119

Rinnuco failed to promote protection of ecosystems, natural habitats and maintenance of

viable populations of species in natural surroundings,120 which may be done through legislatively based

planning controls.121 These may include special management measures, which are listed in Decisions

IX/16, X/33 and XI/20. While Decisions of the Conference of Parties [“COP”] are generally non-

binding,122 they are authoritative interpretations123 of states-parties’ duties under CBD.

Instead of protecting the marine ecosystem, Rinnuco conducted OIF, which intentionally

alters the ecosystems and biogeochemical cycles of the oceans.124 The first known casualties of RIFP

were the nine narwhals, which, as keystone species in the arctic oceanic system,125 play an important

role in the balancing of the ecosystem. The possibility of more deaths may lead to their population

being below the Minimum Viable Population, greatly increasing the risk of short-term extinction126

and resulting in imbalance and danger to the ecosystem. Instead of taking special management

measures to ensure the survival of the narwhals, Rinnuco conducted OIF in complete disregard of the

Muktuk Ocean’s ecosystem.

119 CBD,.art..8.

120 CBD,.art..8(d).
121.Lyle.Glowka,.A.Guide.to.the.Convention.on.Biological.Diversity,.International.Union.for.Conservation.of.Nature.[IUCN],.at

…41.(1994).

122.Jutta.Brunnée,.COPing.with.Consent:.Law-Making.Under.Multilateral.Environmental.Agreements,.15.Leiden Journal Int’l..L..

…21.(2002).

123.Georg.Nolte,.Treaties.and.Subsequent.Practice.(2013)..See.also.Burrus.M..Carnahan,.Treaty.Review.Conferences,.81…

…AJIL.226,.229.(1987).

124 Cullen.&.Boyd,.supra.note.65.

125 Narwhal.(Monodon.monoceros).-.Order.Cetacea

126 Supra note 126,.at.42.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

States are further obligated to take concrete measures to conserve biodiversity and to ensure

that its elements are used sustainably. 127 Conservation of biodiversity entails maintaining the

populations of species and their interaction with the non-living environment.128 Rinnuco failed to

provide for conditions that are needed for compatibility between present uses and the conservation

of biological diversity and the sustainable use of its components 129 in conducting OIF without

considering that one of its possible effects is decrease in nutrient supply and biological productivity,

leading to reduction in economic activities such as fisheries.130

d. Rinnuco failed to comply with the requirements of an Environmental

Impact Assessment [“EIA”]131

First, Rinnuco failed to adopt appropriate procedures to assess any possible effects of RIFP, 132

as it did not follow the requirements of the AF under LC/LP, which is recognized as containing the

global rules and standards governing OIF. 133 Second, Rinnuco failed to introduce appropriate

arrangements to ensure that the environmental consequences of RIFP are duly taken into account;

127.Tore.Henriksen,.Conservation.and.Sustainable.Use.of.Arctic.Marine.Biodiversity:.Challenges.and.Opportunities,.Arctic.Review.on

….Law.and.Politics.(2010).

128 Id.

129 CBD,.art..8(i).

130 Id.

131 CBD,.art..14.

132 CBD,.art..14(1)(a).

133 See.supra.Part.II.A.1.f.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

instead, it conducted RIFP without acknowledging any of OIF’s negative effects on the

environment.134

Third, Rinnuco failed to promote consultation on RIFP through conclusion of bilateral,

regional or multilateral arrangements, 135 despite the fact that Aeolia houses the Nautilus Research

Institute, the only research institute in Scheflutti136 that studies narwhals.137 This obligation is even

more pressing when a shared resource is involved, which can only be protected through close and

continuous co-operation between the adjacent States.138

Finally, Rinnuco failed to take action to minimize the grave and imminent danger to the

biological diversity of the Muktuk Ocean; nor did it promote national arrangements for emergency

responses to RIFP or encourage international cooperation to establish joint contingency plans with

Aeolia.139 Rinnuco categorically stated that it will resume RIFP at its discretion, dismissing Aeolia’s

concerns and the death of the narwhals.140

e. Rinnuco violated its duty to protect customary use of biological resources

in accordance with traditional cultural practices.141

134 See.supra.Part.II.A.

135 CBD,.art..14(1)(c).
136 Clarifications,A26.

137 Record¶3

138 Pulp.Mills.in.the.River.Uruguay.(Arg..v..Uru.),.2010.I.C.J..55-56,.¶82.

139 CBD,.art..14(1)(e).

140 Record¶¶18,21.

141 CBD,.art..10(c).

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Parties are required to protect and encourage customary use of biological resources, like

narwhals, in accordance with traditional cultural practice, as such use serves as control mechanisms 142

for their protection and conservation, with local people ultimately controlling the fate of these

biological resources.143 Rinnuco violated this obligation when it caused the death of the narwhals,

which are culturally significant animals celebrated in an annual festival in Aeolia.144

B. RINNUCO CAUSED TRANSBOUNDARY HARM AND VIOLATED THE PRECAUTIONARY

PRINCIPLE [“PP’’].

RIFP caused transboundary harm to Aeolia and violated PP, in breach of Rinnuco’s duties

under both conventional and customary international law.

1. RINNUCO CAUSED TRANSBOUNDARY HARM.

No State has the right to make use of its own territory in any manner that might cause serious

and clearly provable damage to the territory of another State. 145 The right to exploit and explore,

142 Jeffrey.McNeely,.Diverse.Nature,.Diverse.Cultures,.People.and.the.Planet.2.3.(1993).
143.M..Forster,.Some.Legal.and.Institutional.Aspects.of.Economic.Utilization.of.Wildlife,.in:.IUCN..Sustainable.Use.of.Wildlife.(a…

…compendium.of.papers.arising.from.a.1993.workshop.held.during.the.18th.Session.of.the.IUCN.General.Assembly,…
…Perth,.Australia).(1993).

144 Record¶3.

145.Trail.Smelter.Arbitral.Decision.(U.S..v..Can.),.3.R.I.A.A..1905.(1938/1941);.Stockholm.Declaration,.Principle.21,.U.N

….Doc..A/CONF.48/14/Rev.1.(16.June.1972).See.also.Harold.Hohmann,.et.al.,.Precautionary.Legal.Duties.and.Principle
….of.Modern.International.Law.(1994).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

conserve and manage natural resources146 must be exercised without causing transboundary harm, or

damage upon a State caused by the acts of another in the territory of the State of origin. 147 This

obligation is customary international law.148

A violation of this obligation has four elements: the harm must result from human activity;

there must be a physical relationship between the activity concerned and the harm; there must be

transboundary transfer of the harmful effect; and the activity must involve “a risk of causing significant

harm”.149 All four elements are present in this case.

a. The harm was a result of human activity

Dumping of iron into the ocean can only be done through deliberate human action. It is not

disputed that RIFP was conducted through Rinnuco’s actions.150

b. There exists a physical relationship between the activity concerned

and harm caused.

146 UNCLOS,.art..56.

147.Report.of.the.International.Law.Commission.[“ILC”],.Articles.on.Prevention.of.Transboundary.Harm.from…………

…Hazardous.Activities,.U.N..GAOR,.U.N..Doc..A/56/10.(2001);.Corfu.Channel,.supra.note.115;.Trail.Smelter,.supra…
…note.145.

148 Legality.of.the.Threat.or.Use.of.Nuclear.Weapons,.Advisory.Opinion,.I.C.J..226.(1996);.CBD,.Principle.3.

149 Report.of.the.ILC,.supra.note.147,.art.1;.Oscar.Schachter,.International.Law.in.Theory.and.Practice,.at.336.(1991).

150 Record¶16.

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A physical relationship requires that the activity directly or indirectly involving natural

resources151 results in bodily, materially or environmentally harmful consequences.152 RIFP affects the

marine life and other natural resources in the Muktuk Ocean, and resulted in harmful consequences.153

c. There was a transboundary transfer of the harmful effect.

Any harmful effect from RIFP will not be contained within the EEZ of Rinnuco. Due to the

density of surface waters of the Arctic Ocean especially in winter, all intermediate and deep water in

the Arctic Ocean is advected in from adjacent areas.154 Thus, iron dumped into the ocean will be

carried along the ocean circulation within the Arctic Circle.

d. Rinnuco’s iron fertilization project involves a risk of causing

significant harm.

“Risk of causing significant harm” refers to the combined effect of the probability of

occurrence of an accident and the magnitude of its injurious impact.155 The risk need not be of high

probability, so long as the harm caused is significant.156

151 Xue.Hanqin,.Transboundary.Damage.in.International.Law,.at.4.(2003).

152 Supra.note.149,.at.5.

153 See.supra.Part.II.B.1.a.

154.Yvonne.Herman,.et.al.,.Marine.Geology.and.Oceanography.of.the.Arctic.Seas,.at.9.(1974);.Rebecca.Woodgate,.Arctic.Ocean…

…Circulation:.Going.Around.at.the.Top.of.the.World,.4.Nature.Education.Knowledge.8.(2013).

155 Report.of.the.ILC,.supra.note.147.

156 Id.

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“Significant” means greater than mere nuisance or significant harm normally tolerated. It is

“something more than ‘detectable,’ but need not be ‘serious’ or ‘substantial.’”157 The death of the

narwhals is a significant loss to the marine biodiversity of Aeolia and its eco-tourism, heavily relied

upon by Aeolia.158

An activity may involve a risk of causing significant transboundary harm even though those

responsible for carrying out the activity underestimated the risk or were unaware of it. 159 Thus,

Rinnuco cannot claim unawareness of significant transboundary harm caused by RIFP to exculpate it

from liability.

2. RINNUCO VIOLATED THE PRECAUTIONARY PRINCIPLE UNDER

CONVENTIONAL AND CUSTOMARY INTERNATIONAL LAW

Both LC/LP and CBD incorporate PP, which is also customary international law. In

conducting RIFP, Rinnuco committed an egregious breach of this obligation under both treaty and

custom.

a. Rinnuco failed to observe PP under LP.

157 Schachter,.supra.note.149.

158 Record¶¶2-3.

159 Report.of.the.ILC,.supra.note.147.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

Under LP, Rinnuco is required to adopt “appropriate preventative measures” when an activity

is “likely to cause harm” even when there is “no conclusive evidence to prove a causal relation between

the inputs and their effects”160.

Rinnuco breached this duty when it implemented RIFP despite the significant body of

scientific work identifying harm likely to result from OIF.161 It again violated PP when it refused to

discontinue RIFP despite the narwhals’ death.162

The EIA conducted by Rinnuco 163 is not an “appropriate preventative measure.” The

requirement of an AF specific to OIF is proof that an EIA does not provide sufficient standards by

which to measure OIF. Following lex specialis, the specific AF adopted under LC/LP prevails over the

general requirement of an EIA under customary law.164

b. Rinnuco failed to observe the PP under CBD.

Parties are required to undertake appropriate measures to “avoid or minimize threats of

significant reduction or loss of biological diversity, despite the lack of full scientific certainty.”165 The

PP under CBD thus imposes a dual obligation: first to avoid, and second to minimize, the above

threats.

160.1996.Protocol.to.the.Convention.on.the.Prevention.of.Marine.Pollution.By.Dumping.of.Wastes.and.Other.Matter,.art

….3,.(1996).2006.A.T.S.1..[hereinafter.London.Protocol].

161 See.supra Part II.A.

162 Record¶20.

163 Record¶12.

164 Antonio.Cassese,.International Law,.at.199.(2004).

165 CBD,.Preamble.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

In conducting OIF despite the threat posed to biological diversity,166 Rinnuco failed to comply

with the first half of this obligation. In subsequently failing to take action after the death of the

narwhals, Rinnuco failed to comply with the second. The significant threat posed to the narwhals

triggered Rinnuco’s duty to minimize threats of significant reduction or loss of biological diversity.

Rinnuco acted in complete disregard of this duty when it refused to discontinue RIFP or take any

other measures to minimize the harm caused.

c. Rinnuco failed to observe PP as customary international law.

PP mandates 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”. 167 There is sufficient state practice and opinio juris to consider PP

custom.168

Application of PP as custom requires threat of environmental damage, of a serious or

irreversible nature, and scientific uncertainty, such that no causal link between an action and

environmental damage can be established.169 Each element is present.

166 See.supra.Part.II.A.2.
167 Rio.Declaration.on.Environment.and.Development,.Principle.15,.U.N..Doc.A/CONF.151/5/Rev.1 (16.June.1992)

168.See.Arie.Trouwborst,.Evolution.and.Status.of.the.Precautionary.Principle.in.International.Law.(2002);Agne.Sirinskiene,

…The.Status.of.Precautionary.Principle:.Moving.Towards.a.Rule.of.Customary.International.Law.(2009),.David………
…Freestone.&.Ellen.Hey,.The.Precautionary.Principle.and.International.Law.(1995);.and.Tim.O’Riordan.&.James……
…Cameron,.Interpreting.the.Precautionary.Principle.(1994).

169.IUCN.Council,.Guidelines.for.Applying.the.Precautionary.Principle.to.Biodiversity.Conservation.and.Natural.Resourc

e.Management,.67th.Meeting.(2007).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

i. RIFP poses a threat of environmental damage.

Rinnuco’s dumping of iron into the ocean poses a threat to the ecological balance and marine

biodiversity of the Muktuk Ocean.170

ii. The harm brought about by Rinnuco’s iron fertilization project is

of a serious and irreversible character.

The danger is undisputedly grave and irreversible. Nine narwhals were found dead off the

coast of Rinnuco.171 These deaths took place after the first and smallest phase of RIFP; there is no

way to predict or measure the extent of the harm that RIFP in successively larger phases will cause to

the Muktuk Ocean and its biodiversity.

iii. There exists scientific uncertainty, such that no causal link

between the Rinnuco’s iron fertilization project and environmental

damage can be established, requiring the application of PP.

The nature of OIF as a large-scale CDR measure,172 the number of variables at play,173 and the

dearth of conclusive scientific evidence as to all its possible effects on the environment and

170 See.supra.Part II.A.2.c.

171 Record¶20.
172 Rayfuse.&.Scott,.supra.note.42.

173.Jennie.Dean,.Iron.Fertilization:.A.Scientific.Review.with.International.Policy.Recommendations,.32.Environs..Env..Law.and……

….Policy.Journal.321.(2009).

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biodiversity 174 result in a situation where requiring proof of a causal link between OIF and

environmental damage before taking action would be impractical, if not impossible, and grave

environmental harm would go unchecked.

Rinnuco violated PP as custom when it failed to adopt cost-effective measures to prevent

environmental degradation resulting from RIFP, an activity which raises threats of serious and

irreversible damage to marine biodiversity.175

C. RINNUCO CANNOT INVOKE ITS DOMESTIC LEGAL SYSTEM TO JUSTIFY NON-

COMPLIANCE WITH ITS OBLIGATIONS UNDER INTERNATIONAL LAW.

Rinnuco’s failure to enact domestic implementing legislation for Resolution LC-LP.2(2010)176

does not excuse Rinnuco from complying with its obligations under LC/LP.

1. A state may not invoke the provisions of its internal law as justification for

its failure to perform a treaty.177

Pursuant to international law, all obligations imposed by it must be fulfilled in good faith, and

domestic law may not be invoked to justify non-fulfillment. 178 A State which has assumed valid

174 See.supra.Part II.A.2.

175 See supra Part II.A.

176 Record¶18.
177 VCLOT,.art..27.

178.International.Responsibility.for.the.Promulgation.and.Enforcement.of.Laws.in.Violation.of.the.Convention,.Advisory

…Opinion,.OC-14/94,Ser.A,No14,.¶35,.116.I.L.R..320

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

international obligations is bound to make such modifications in its legislation necessary to ensure

their fulfillment.179

Rinnuco failed to comply with the LC/LP in good faith when it failed to enact domestic

implementing legislation to make LC-LP.2 effective. As a Resolution interpreting states-parties’

obligations under the LC/LP, good faith compliance with the LC/LP requires compliance with this

Resolution.

2. Rinnuco cannot invoke its failure to adopt the necessary implementing

legislation as justification for failure to comply with the Assessment

Framework provided by Resolution LC-LP.2 (2010)

This resolution is an authoritative interpretation of the duties of state parties under the

LC/LP.180 As such, good faith in the performance of its obligations under LC/LP requires Rinnuco

to comply with this AF.

In disregarding Resolution LC-LP.2(2010), Rinnuco acted contrary to the rule of pacta sunt

servanda. Rinnuco implemented RIFP in bad faith, deliberately bypassing the requirements of the AF

despite its knowledge that AF was adopted by the Conference of the Parties as the proper procedure

by which parties to the LC/LP could conduct OIF while still complying with obligations under

LC/LP.181 No effort was made to comply with the requisites of the AF, despite Rinnuco’s resources

and capabilities as a developed country.182

179 Exchange.of.Greek.and.Turkish.Populations.(Greece.v..Turk.),.Advisory.Opinion,.1925.P.C.I.J.,.Ser.B,.No.10.

180 LC-LP.2(2010),.supra.note.98,.Annex.6,.1.5.

181 LC-LP.2(2010),.supra.note.98.

182 Record¶2.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

D. RINNUCO CANNOT INVOKE THE PERSISTENT OBJECTOR RULE.

Rinnuco’s consistent stance in favor of OIF, as well as its refusal to vote for a measure

completely banning it183 do not justify breach of its obligations under international law.

1. The persistent objector rule is not applicable.

This rule has been proposed in situations wherein a new rule of customary law is developing

and a State objects to said rule, resulting to its inapplicability to that State.184 It finds no application in

situations where the disputed rules are conventional law. Rinnuco’s declarations and statements in

favor of OIF and against a complete ban were made during conferences or meetings of the parties of
185
multilateral environmental agreements. They were thus made within the context of the

interpretation of states-parties’ obligations under conventional law, and not in response to the

emergence of a new norm of customary law.

Moreover, there is no state practice to support this rule, and commentators question its very

existence.186

183 Record¶18.

184 Malcolm.Shaw,.International.Law.(6th.ed..2008).

185 Record¶18

186 Malcolm.Evans,.International.Law,.at.127.(3rd.ed..2010).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

E. RINNUCO CANNOT INVOKE ITS OBLIGATIONS UNDER CLIMATE CHANGE

CONVENTIONS AS JUSTIFICATION FOR BREACH OF ITS OBLIGATIONS UNDER

INTERNATIONAL LAW.

Rinnuco has maintained that OIF is beneficial to the oceans and marine biodiversity, and that

its obligations under climate change conventions justify RIFP. However, current scientific research

denies Rinnuco’s first claim, and international law refutes the second.

1. Iron fertilization will not enable Rinnuco to comply with its obligations under

the UNFCCC and related climate change conventions.

Rinnuco claims that OIF will result in the mitigation of climate change. However, current

scientific research does not support this claim. First, technical challenges and large uncertainties

surrounding large-scale OIF, along with long delays in the climatic response, mean that it would take

decades to have any notable effect.187 Second, it is suggested that other factors may prevent successful

fertilization, and models indicate that the potential gains of even completely successful fertilization are

small. 188 Third, because deep ocean CO2 reservoirs are eventually re-exposed to the atmosphere

through global ocean circulation, this would not be a permanent solution.189 Finally, some suggest that

187 Jason.Blackstock.&.Jane.Long,.The.Politics.of.Geoengineering,.327(5965).Science.527.(2010).

188.J.A..Fuhrman.&.D.G..Capone,.Possible.Biogeochemical.Consequences.of.Ocean.Fertilization,.36.Limnol..Oceanogr..1951.(1991)

189 Chisholm,et.al.,.supra.note.81.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

the enhanced release of nitrous oxide could totally negate any potential benefit from fertilization and

likely worsen global warming and ozone depletion.190

Rinnuco also claims that OIF will result in carbon sequestration191and could generate potential

carbon offsets that Rinnuco might use to meet emission reduction targets or commitments. 192 Again,

these claims are unsupported by conclusive scientific research.193

2. Breach of one treaty in order to comply with another is contrary to pacta sunt

servanda.

Regardless of any alleged benefits of OIF, Rinnuco’s obligations under climate change

conventions cannot justify the conduct of RIFP in breach of Rinnuco’s obligations under UNCLOS,

CBD, LC/LP in relation to UNCLOS, and CMS.

The rule of pacta sunt servanda is clear: every treaty in force is binding upon the parties to it and

must be performed by them in good faith.194 The ICJ has held that this rule consists of two elements

of equal importance.195 First, every treaty in force is binding upon the parties to it: a state which is party

to several conventions cannot choose to comply with one treaty at the expense of another. Second,

good faith under pacta sunt servanda obliges parties to a treaty to apply treaties in a reasonable way and

190 Fuhrman & Capone,.supra.note.188.

191 Record¶14.

192 Record¶20.
193 Lampitt,et.al.,.Ocean.Fertilization:.a.Potential.Means.of.Geoengineering?,.Phil..Trans..R..Soc..A.366.(2008).

194 VCLOT,.art..26.

195 Gabčíkovo–Nagymaros.Project.(Hung..v..Slov.),.1977.I.C.J..7.(1997).

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

in such a manner that their purpose can be realized:196 state parties to multiple conventions owe this

duty of good faith under each convention.

Good faith compliance with treaty obligations thus requires compliance in a manner that does

not breach any other treaty obligation. Pacta sunt servanda requires that Rinnuco fulfill its obligations

under climate change conventions through means that do not violate its obligations under UNCLOS

and CBD. Rinnuco bound itself to comply with the obligations of each convention, and cannot now

evade liability for breach of obligations to which it gave its consent.

3. Alleged compliance with its obligations under climate change conventions

does not justify Rinnuco’s violation of its duty not to cause transboundary harm

and PP.

Article 38 of the ICJ Statute provides that both custom and treaty are sources of law.197 There

exists no hierarchy between the two sources. 198 Custom and treaty equally being sources of law,

Rinnuco cannot invoke its obligations under UNFCCC and related climate change conventions to

justify breach of obligations under customary international law, i.e. its duty not to cause transboundary

harm and its duty to observe the precautionary principle.

196 Id.

197 ICJ.Statute,.art..38.

198 Cassese,.supra.note.164.

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 WRITTEN SUBMISSIONS ON BEHALF OF AEOLIA

CONCLUSION AND PRAYER FOR RELIEF

Applicant, the Federal States of Aeolia, respectfully requests the Court to adjudge and declare

that:

1. The International Court of Justice has jurisdiction over the dispute; and

2. The Republic of Rinnuco violated international law by conducting the RIFP, and that any re-

initiation of this project would violate international law.

Respectfully submitted,

AGENTS FOR THE APPLICANT

37