413A

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE

NETHERLANDS

THE 24TH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

QUESTIONS RELATING TO REINTRODUCTION OF BEARS

FEDERAL STATES OF ARCTOS

APPLICANT

v.

REPUBLIC OF RANVICORA

RESPONDENT

MEMORIAL for the APPLICANT

 Preliminary Pages

TABLE OF CONTENTS

TABLE OF CONTENTS 1

INDEX OF AUTHORITIES 3

STATEMENT OF JURISDICTION 9

QUESTIONS PRESENTED 10

STATEMENT OF FACTS 11

SUMMARY OF ARGUMENTS 13

PLEADINGS 14

I. RANVICORA VIOLATED TREATY AND CUSTOMARY INTERNATIONAL

LAW BY REINTRODUCING GREY BEARS. 14

A. Ranvicora’s reintroduction project violated its duty not to cause transboundary harm.

14

1. There is a nexus between Ranvicora’s reintroduction project and the damage to

life, property, and environment. 14

2. The damage caused by the reintroduction of the grey bears is significant. 15

B. Ranvicora failed to comply with its duties under CBD and the Bern Convention. 16

1. Ranvicora violated Articles 5 and 8 of the CBD. 17

a. Ranvicora failed to fulfill its duty to cooperate. 17

i. Ranvicora failed to fulfill its duty to notify and exchange information. 17

b. Ranvicora’s reintroduction of grey bears is inconsistent with its obligation of in-

situ conservation under CBD. 18

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i. Ranvicora violated the obligation of in-situ conservation through their

reintroduction of grey bears. 18

2. Ranvicora violated the provisions of the Bern Convention. 20

a. Ranvicora failed to cooperate with Arctos with respect to the reintroduction of

grey bears. 20

b. Ranvicora did not conduct a prior study for an effective or acceptable

reintroduction. 21

c. Ranvicora did not control the introduction of grey bears to Arctos. 22

A. The responses of Arctos were consistent with its duty to conserve biological diversity

under CBD and the Bern Convention. 23

1. Arctos’ responses were consistent with its obligation to conserve biological

diversity and in-situ conservation under CBD. 24

a. The poleward movement of the grey bears does not alter their invasive character.

24

b. The responses of Arctos complied with its duty to control alien species. 25

2. The responses of Arctos are lawful under the Bern Convention. 25

a. There are no other satisfactory solutions. 26

b. The means used are not detrimental to the survival of the grey bears. 26

B. Arctos did not violate the obligation to protect migratory species under the

Convention on Migratory Species [“CMS”]. 27

1. Arctos has complied with Article II of the CMS. 28

2
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2. Arctos’ protective measures did not violate CMS because it was exempted from

the prohibition on taking. 28

C. The responses of Arctos were protective measures and did not constitute a violation

of its duty not to cause transboundary harm. 31

1. Arctos practiced due diligence in carrying out its protective measures. 31

2. The protective measures taken were not indiscriminate. 32

3. The protective measures did not have a direct negative impact on the species and

Ranvicora. 32

a. The measures did not have a direct negative effect on the grey bear species

because the population growth rate remained positive. 33

b. The measures did not affect the cultural interests of Ranvicora with respect to

the grey bears. 33

B. Assuming arguendo that Arctos caused transboundary harm, the wrongfulness of its

response is precluded because of the necessity to protect the ecological balance of the

environment. 33

1. The responses were proportional. 36

PRAYER FOR RELIEF 38

3
 Preliminary Pages

INDEX OF AUTHORITIES

TREATIES, CONVENTIONS, AND DECLARATIONS

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 12

CBD, art.8(d); Lyle Glowka, A Guide to the Convention on Biological Diversity, 3 J. INT. WILDL.
LAW POLICY 19, 22 (1994). 34
Convention on the Conservation of European Wildlife and Natural Habitats, Dec. 1, 2009, ETS- No.
104 18

Convention on the Protection and Use of Transboundary Watercourses and International Lakes, Mar.
17, 1992, 1936 U.N.T.S. 269 13
Stockholm Declaration on the Human Environment, Prin.7, U.N. Doc.A/CONF.48/14/Rev.1
(1973)
Vienna Convention on the Law of Treaties, Art. 31(1), May 23, 1969, 1155 U.N.T.S. 331 26
U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

CBD Decision VI/23, Alien Species that threatens ecosystems, habitats or species, UNEP/CBD/COP/6/23
(2002) 23
CBD, Sixth Conference of the Parties, The Hague, the Netherlands, 7-19 April 2002: Decision VI/23:
Alien species that threaten ecosystems, habitats or species to which is annexed Guiding principles for the
prevention, introduction and mitigation of impacts of alien species that threaten ecosystems, habitats or species,
Annex 57, (2002). 13

Cooperation between States in the Field of the Environment, A/RES/2995 (XXVII) (Dec. 15, 1972)
ILC Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful
Acts, , 53rd session, A/56/10 (2001)
Int’l. Union for Conservation of Nature [“IUCN”], Guidelines for Reintroductions and Other Conservation
Translocations, version 1.0 (2013).
12
IUCN/SSC, Guidelines for Reintroductions and Other Conservation Translocations. Version 1.0.
Gland, Switzerland: IUCN Species Survival Commission, viiii + 57, 28 - 30 (2013). 16
Report of the International Law Commission, Draft Articles on Prevention of Transboundary Harm
from Hazardous Activities, U.N. GAOR, U.N. Doc. A/56/10 (2001) 12

4
 Preliminary Pages

Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (16 June
1992)
Standing Committee to the Bern Convention, Revised Resolution No. 2: Scope of Articles 8 and 9 of
the Bern Convention, December 2, 2011 ¶7. 24

Standing Committee to the Bern Convention, Recommendation 57: Introduction of Organisms Belonging
to Non-Native Species, (May 12, 1997) 20

Standing Committee to the Bern Convention, Recommendation 77: Eradication of non-native terrestrial
vertebrates, (December 3, 1999) 20

Standing Committee to the Bern Convention, Recommendation No. 115: Conservation and Management
of Transboundary Populations of Large Carnivores, (2005) 18
Standing Committee to the Bern Convention, Recommendation No. 148: Conservation of Large
Carnivores in the Caucasus, (December 9, 2010)
Standing Committee to the Bern Convention, Recommendation No. 158: Conservation translocation under
changing climatic conditions, (November 30, 2012) 19
Standing Committee to the Bern Convention, Recommendation 159: Effective Implementation of Guidance
for Parties on Biodiversity and Climate Change, (November 30, 2012) 19
Standing Committee to the Bern Convention, Recommendation No. 179: Action to Promote and
Complement the Implementation of EU Regulation 1143/2014 on Invasive Alien Species, (December 4, 2015)
18
United Nations General Assembly Resolution A/RES/56/82

JUDICIAL AND ARBITRAL DECISIONS

Case concerning Land Reclamation by Singapore in and around the Straits of Johor (Malaysia v.
Singapore) UNRIAA 133 (2005) 32
Case C-10/96, AVES ASBL v Région, Wallonne E.C.R (1996) 24
Case C-342/05, Commission v Finland, 2007, ECR I-4713. 24
Gabčíkovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25) 45
Lake Lanoux Arbitration (Fr. v. Spain), 1957 R. Int’l. Arb. Awards 281 (Nov. 16, 1957) 56
MOX Plant (Ireland v U.K.), ITLOS Case No. 10, (Dec. 3, 2001) 78
Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 59 (Apr. 20) 16
15

5
 Preliminary Pages

Southern Bluefin Tuna (N.Z., Australia v Japan) ITLOS Case No. 3, (Aug. 27, 1999) 34

BOOKS, TREATISES, AND JOURNALS

Andreas Zedrosser, et al., Brown Bears in Austria 10 Years of Conservation and Actions for the Future, M-117
UMWELTBUNDESAMT 36, 36 (1999) 17
Arie Trouwborst, et al. Border Fences and their Impacts on Large Carnivores, Large Herbivores and Biodiversity:
An International Wildlife Law Perspective, 25 RECIEL 291 (2016). 27
Arie Trouwborst, et al., Norway's Wolf Policy and the Bern Convention on European Wildlife: Avoiding the
“Manifestly Absurd”, 20(2) JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY, 155-167
(2017). 32
Arie Trouwborst, Aussie Jaws and International Laws: The Australian Shark Cull and the Convention
on Migratory Species, 2 CORNELL INTL. L. JOUR. ONLINE 44, 41-46 (2014). 26
Arie Trouwborst,et al., Legal Implications Of Range Expansions In A Terrestrial Carnivore: The Case Of The
Golden Jackal (Canis Aureus) In Europe, 24 BIODIVERS. CONSERV., 2593, 2606 (2015). 18
Black’s Law Dictionary 277 (4th pocket ed. 2011). 27
Carla J. Dove, et al., Birds Consumed by the Invasive Burmese Python (Python molurus bivittatus) in Everglades
National Park, Florida, USA, 123(1) WILSON J. ORNITHOL. 126, (2011).
14
COLIN G. SCANES, ANIMALS AND HUMAN SOCIETY, Chapter 1 - Animal Perception Including Differences
With Humans, (2018). 30
DIANE L. HAASE, ET AL., NATIONAL PROCEEDINGS: FOREST AND CONSERVATION NURSERY
ASSOCIATIONS (2012). 14
L.P. Glenn, et al., Reproductive Biology of Female Brown Bears. 3 THIRD INTERNATIONAL CONVENTION OF BEARS
488, (1975). 28

Hanqin Xue, Transboundary Damage in International Law 4-8 (2003).

12
J. Leighton Reid, Knowledge and Experience Predict Indiscriminate Bat-Killing Intentions among Costa Rican Men,
48(3) BIOTROPICA, 394 (2016). 32
John D. C. Linnell, et al., When Is It Acceptable To Kill A Strictly Protected Carnivore? Exploring The Legal
Constraints on Wildlife Management within Europe’s Bern Convention, 21 NATURE CONSERVATION, 129
(2017). 24
Jon E. Swenson, et al., Action Plan for the Conservation of the Brown Bear (Ursus arctos) in Europe, T-PVS
20, (2000).
14

6
 Preliminary Pages

Jorge Fernandez Orueta & Yolanda Aranda Ramos, Methods to Control and Eradicate Non-native Terrestrial Vertebrate Species,
118 NATURE AND ENVIRONMENT, (2001). 20

Kami A. Barton, et al., Bears Without Borders: Long-distance Movement in Human-dominated Landscapes, 17
GLOB. ECOL. CONSERV., (January 2, 2019). 20

Konstantinos Tsiamis, et al., The EASIN Editorial Board: Quality Assurance, Exchange and Sharing of Alien
Species Information in Europe, 7 MANAG. BIOL. INVASION 321, (2016).
13
Lyle Glowka, A Guide to the Convention on Biological Diversity, 3 J. INT. WILDL. LAW POLICY 19, (1994).
17
Mark A. Hixon, et al., Lionfish: A Major Marine Invasion, 558 MAR. ECOL. PROG. SER. 161, (2016).
13
Measures for Responding to Invasions: Eradication, Containment or Control. A Guide to Designing
Legal and Institutional Frameworks on Alien Invasive Species IUCN (Claire Shine, et.al. (2000).
25
P. Birnie et. al., International Law and the Environment 171 (1992). 32
Pälvi Salo, et al., Alien Predators are more Dangerous than Native Predators to Prey Populations, 274
PROCEEDINGS OF THE ROYAL SOCIETY 1237, (2007). 23
PATRICIA BIRNIE, ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT, OXFORD UNIVERSITY
PRESS, 112 (2009). 29

Peter M. Vitousek, Human Domination of Earth’s Ecosystems, 2 SCIENCE 294, 294-99 (1997). 23
Richard Bischof & Jon E. Swenson, Linking Noninvasive Genetic Sampling and Traditional Monitoring to Aid
Management of a Trans-border Carnivore Population, 22(1) and ECOL. APPL. 361, (2012).
15
Royal Society for the Prevention of Cruelty to Animals, Recreational Hunting and Animal Welfare
4-5, (2017). 25
Sergio Agustin Lambertucci, et al., Apex Scavenger Movements Call for Transboundary Conservation Policies,
170 BIOL. CONSERV. 144, (2014)
15

MISCELLANEOUS

Emergency mode introduced on Novaya Zemlya (Feb. 9, 2019), http://dvinanews.ru/-9bgch7xf.

35

7
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Large Carnivore Initiative for Europe, Brown Bears Ursus Arctos Brown Bear facts
https://www.lcie.org/Large-carnivores/Brown-bear 20

Seth M. Wilson, Lessons Learned from Past Reintroduction and Translocation Efforts with an Emphasis on
Carnivores, (2018), https://www.lifelynx.eu/wpcontent/uploads/2018/10/Lessons-Carnivore-
Reintroduction-Efforts-Final-Version-4.0-2018.pdf.

8
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STATEMENT OF JURISDICTION

The Federal States of Arctos and the Republic of Ranvicora submit their dispute to this

Honorable Court, pursuant to Article 40 of the Statute of the International Court of Justice [ICJ]. On

July 11, 2019, Arctos and Ranvicora, through a Special Agreement, submitted their differences

concerning the reintroduction of the grey bears in Ranvicora and Arctos’ responses to Ranvicora’s

reintroduction project. This Special Agreement has been transmitted to the registrar of the ICJ which

acknowledged receipt of the notification the parties on July 15, 2019.

9
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QUESTIONS PRESENTED

WHETHER THE REPUBLIC OF RANVICORA VIOLATED INTERNATIONAL LAW WITH

RESPECT TO ITS GREY BEAR REINTRODUCTION PROJECT.

II

WHETHER THE FEDERAL STATES OF ARCTOS DID NOT VIOLATE

INTERNATIONAL LAW WITH RESPECT TO ITS RESPONSES TO RANVICORA’S

REINTRODUCTION OF GREY BEARS.

10
 Preliminary Pages

STATEMENT OF FACTS

The Federal States of Arctos [“Arctos”] and the Republic of Ranvicora [“Ranvicora”] are

neighboring developed countries located in Suredia in the Northern Hemisphere. Arctos is located to

the north of Ranvicora where the countries share a 75-km border which consists primarily of forests

and privately-owned farms.

Grey bears have been living in Ranvicora, Paddington, and Aloysius for centuries. However,

the grey bear population in Ranvicora has long been isolated from the two latter countries. They are

known to have migrated only within Ranvicora where they are considered culturally important.

In 1963, the grey bears went extinct due to overhunting and habitat destruction. In 2008,

Ranvicora began to plan the reintroduction project for grey bears in their State. Prior to its execution

of the project, Ranvicora conducted a national environmental impact assessment [“EIA”], but failed

to inform or consult with, and did not assess the impacts to other countries about the multi-year

reintroduction project ending in 2026. Based on the results of the EIA, Ranvicora proceeded with the

grey bear reintroduction project.

Ranvicora legally acquired the grey bears for the reintroduction project from Paddington and

Aloysius. Since it was determined in these countries that the grey bear’s range has shifted poleward

due to climate change, Ranvicora decided to release the bears at six locations in the northern region

of Artcos, near the border. However, some biologists questioned whether the said location was part

of the grey bear’s historic range. Ranvicora initially released 20 grey bears in 2013, but only half of

them were equipped with GPS collars.

In 2017, some of the grey bears started to intermittently move back and forth between

Ranvicora and Arctos. In 2018, the bears attacked and killed several sheep and horses in Arctos. The

11
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bears also damaged apple orchards and beehives, and sniffed out and consumed the eggs and nestlings

of the Trouwborst tern, an endangered endemic species in Arctos.

On February 27, 2018, Arctos forwarded a diplomatic note asking Ranvicora to formally end

its harmful reintroduction project because of the property damage caused by the grey bears. On

August 21, 2018, Ranvicora refused to end its reintroduction project, and denied responsibility under

international law. As a result, grey bears continued to cross the border, attacking and killing more

animals, and damaging properties and the environment of Arctos. On April 22, 2019, a female grey

bear attacked two children who were playing outside on a farm, and one of the children suffered

permanent injuries and the other one died as a result of the attack.

Due to the urgency of the situation, Arctos decided to implement measures such as setting of

poisoned carcasses near the farmer previously attacked and an emergency regulation permitting its

citizens to shoot bears spotted in Arctos. Said measures were necessary to protect its citizens and their

property from the imminent threat posed by the grey bears. Further communications and negotiations

failed to resolve the dispute, and the two countries thereby agreed to submit this dispute to the

International Court of Justice (“ICJ”).

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SUMMARY OF ARGUMENTS

I.

The Republic of Ranvicora's grey bear reintroduction project violated international law

specifically those relevant provisions under the CBD and the Bern Convention with respect to its duty

to cooperate, not to cause transboundary harm and its obligation for in-situ conservation.

Ranvicora's failure to meet these obligations resulted not only to the death of one of Arctos'

citizens but also caused serious damage to its environment and to people's livelihood. The nobility of

the purpose of the reintroduction does not preclude the wrongfulness of its effects.

II.

Contrary to Ranvicora's claim, The Federal State of Arctos' responses to the reintroduction

project did not violate international law because they were valid countermeasures.

The damage sustained by its people and its environment necessitated the government of

Arctos to take such measures in order to protect its essential interests. The responses were

proportional and reversible.

13
 Written Submissions of Arctos

PLEADINGS

I. RANVICORA VIOLATED TREATY AND CUSTOMARY INTERNATIONAL

LAW BY REINTRODUCING GREY BEARS.
Ranvicora’s reintroduction project is inconsistent with its duty not to cause transboundary

harm and with its obligations under the Convention on Biological Diversity [“CBD”] and the

Convention on the Conservation of European Wildlife and Natural Habitats [“Bern Convention”].

A. Ranvicora’s reintroduction project violated its duty not to cause transboundary

harm.
States must ensure that the activities within their jurisdiction do not cause damage to the

environment of other States1 and prevent or minimize the risk thereof.2 There exists transboundary

harm if: (a) there is a nexus between the activity and the damage, and (b) the transboundary harm is

significant.3

1. There is a nexus between Ranvicora’s reintroduction project and the damage

to life, property, and environment.
Reintroduction is the human-mediated movement of living organisms from one area, with

release in another.4 Ranvicora chose to release the grey bears in the northern region of Ranvicora

1
Convention on Biological Diversity, art. 3, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD].
2
Report of the International Law Commission, Draft Articles on Prevention of Transboundary Harm
from Hazardous Activities, U.N. GAOR, U.N. Doc. A/56/10 (2001).
3
HANQIN XUE, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4-8 (2003).
4
Int’l. Union for Conservation of Nature [“IUCN”], Guidelines for Reintroductions and Other Conservation
Translocations, Section 2, at 3, version 1.0 (2013).

14
 Written Submissions of Arctos

bordering Arctos.5 Because the shared border is composed of forests and privately owned farms,6 the

grey bears were able to cross the border into Arctos and cause damage.

2. The damage caused by the reintroduction of the grey bears is significant.

Transboundary harm is significant when it impacts, inter alia, human safety, flora and fauna,

causing irreversible damage given the delicateness of ecosystems. 7 Invasive alien species are species,

subspecies or lower taxon, introduced outside its natural past or present distribution, and whose

introduction threaten biological diversity.8 They constitute one of the greatest threats to biodiversity,

causing severe ecological and socio-economic impacts.9 For example, the invasive species of lionfish

causes damage to coral reefs and other nearshore habitats. 10 The Burmese python also invaded the

Everglades in Florida and decimated local mammal and bird populations, prompting concern that they

could drive some species into extinction.11

5
Record¶13.
6
Record¶1.
7
Convention on the Protection and Use of Transboundary Watercourses and International Lakes art
1(2), Mar. 17, 1992, 1936 U.N.T.S. 269; Gabčíkovo-Nagymaros Project (Hung. v. Slovk.),
Judgment, 1997 I.C.J. Rep. 7, p. 78 ¶140 (Sept. 25).
8
CBD, Sixth Conference of the Parties, The Hague, the Netherlands, 7-19 April 2002: Decision
VI/23: Alien species that threaten ecosystems, habitats or species to which is annexed Guiding principles
for the prevention, introduction and mitigation of impacts of alien species that threaten ecosystems, habitats or
species, Annex 57, p. 257 (2002).
9
Konstantinos Tsiamis, et al., The EASIN Editorial Board: Quality Assurance, Exchange and Sharing of
Alien Species Information in Europe, 7 MANAG. BIOL. INVASION 321, 322 (2016).
10
Mark A. Hixon, et al., Lionfish: A Major Marine Invasion, 558 MAR. ECOL. PROG. SER. 161, 161-165
(2016).
11
Carla J. Dove, et al., Birds Consumed by the Invasive Burmese Python (Python molurus bivittatus) in
Everglades National Park, Florida, USA, 123(1) WILSON J. ORNITHOL. 126, 126-131 (2011).

15
 Written Submissions of Arctos

The grey bear is essentially an invasive alien species in Arctos as evidenced by the absence of

historic or fossil records of grey bear presence.12 These invasive bears have caused human casualties,13

agricultural damage,14 and damage to beehives, and Trouwborst tern nests in Arctos.15 This is

significant because bees are a crucial part of agricultural production and natural ecosystem function,16

and the Trouwborst tern is endangered and endemic in Arctos. 17 Being a continuing threat to Arctos,

the bears would decimate domestic livestock, insect, and bird populations.18 Hence, the transboundary

harm posed by the invasive grey bear predators in the environment of Arctos is significant.

B. Ranvicora failed to comply with its duties under CBD and the Bern Convention.
Ranvicora failed to comply with its obligation to (a) cooperate and (b) under in-situ

conservation as provided by the CBD and to (a) cooperate, (b) conduct prior study for an effective

and acceptable reintroduction project, and (c) strictly control the introduction to Arctos of non-native

grey bears of the Bern Convention.

12
Record¶18.
13
Record¶21.
14
Damage to beehives and apple orchards, and death of seven horses and twenty sheep.
15
Record¶17.
16
DIANE L. HAASE, ET AL., NATIONAL PROCEEDINGS: FOREST AND CONSERVATION NURSERY
ASSOCIATIONS (2012).
17
Record¶17.
18
Jon E. Swenson, et al., Action Plan for the Conservation of the Brown Bear (Ursus arctos) in Europe, T-PVS
20, 34 (2000).

16
 Written Submissions of Arctos

1. Ranvicora violated Articles 5 and 8 of the CBD.

Ranvicora failed to fulfill its duty to cooperate,19 and its obligation under in-situ conservation20

when it reintroduced the grey bears.

a. Ranvicora failed to fulfill its duty to cooperate.

The duty to cooperate entails prior notification to a State that would be adversely affected by

an activity under the jurisdiction or control of the State origin.21 Here, Ranvicora did not fulfill this

obligation.

i. Ranvicora failed to fulfill its duty to notify and exchange

information.
The obligation to notify is important to enable States to assess the impact of an activity in

order to eliminate risks, or minimize the effects thereof.22 Reintroduction of species that are inherently

mobile,23 such as the bears in Sweden, Finland and Russia24 that crossed political borders require prior

notification with the neighboring States. Considering the fact that Ranvicora shares a border with

Arctos,25 and that the releasing site of the grey bears was in the northern region of Ranvicora near the

19
CBD, art. 5.
20
CBD, art. 8(h).
21
CBD, art. 5.
22
Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J. 59 (Apr. 20), ¶115.
23
Sergio Agustin Lambertucci, et al., Apex Scavenger Movements Call for Transboundary Conservation Policies,
170 BIOL. CONSERV. 144, 145-150 (2014).
24
Richard Bischof & Jon E. Swenson, Linking Noninvasive Genetic Sampling and Traditional Monitoring to
Aid Management of a Trans-border Carnivore Population, 22(1) ECOL. APPL. 361, 361-373 (2012).
25
Record¶1.

17
 Written Submissions of Arctos

border, it should have notified Arctos prior to the activity. However, Ranvicora failed to do so 26 and

in effect Arctos was unable to prevent or minimize the adverse effects of the reintroduction project.

b. Ranvicora’s reintroduction of grey bears is inconsistent with its

obligation of in-situ conservation under CBD.
The act of reintroducing the grey bears without proper assessment and management measures

is contrary to in-situ conservation.27 Successful reintroduction programs rely on a comprehensive

approach to planning and monitoring.28

i. Ranvicora violated the obligation of in-situ conservation

through their reintroduction of grey bears.
In-situ conservation includes the protection of ecosystems and the maintenance of viable

populations of species in their natural surroundings.29 It also includes the duty to identify processes

and categories which are likely to have significant impacts on biological diversity. 30 This requires

special management measures to ensure the survival of the species such as the conduct of a feasibility

26
Record¶13.
27
IUCN/SSC, Guidelines for Reintroductions and Other Conservation Translocations. Version 1.0. Gland,
Switzerland: IUCN Species Survival Commission, viiii + 57, 28 - 30 (2013).
28
Seth M. Wilson, Lessons Learned from Past Reintroduction and Translocation Efforts with an Emphasis on
Carnivores, 11 ¶ 2 (2018), https://www.lifelynx.eu/wpcontent/uploads/2018/10/Lessons-Carnivore
-Reintroduction-Efforts-Final-Version-4.0-2018.pdf.
29
CBD, art.8(d); Lyle Glowka, A Guide to the Convention on Biological Diversity, 3 J. INT. WILDL. LAW
POLICY 19, 22 (1994).

30
CBD, art. 7(c).

18
 Written Submissions of Arctos

study and post-release monitoring.31 The reintroduction of the brown bears to Upper Austria failed

because there was no comprehensive planning32 and monitoring of the bears.33

Here, acquiring the grey bears from other countries34 and releasing them outside their natural

range35 unmonitored and without identifying possible adverse effects it may have on the surrounding

community where it was released36 is contrary to in-situ conservation. There were concerns from

biologists with regard to the release region but Ranvicora failed to practice precaution and disregarded

those concerns.37 Proper post-execution monitoring is a measure of the performance and provides the

basis for adjusting or adapting management regimes which could ensure viable populations of grey

bears. The failure to provide for this measure would lead to the failure of the reintroduction project

as it does not maintain a viable population of the grey bears. Lack of post-release monitoring was

evident when Ranvicora released the grey bears and fitted only half of them with GPS collars. 38

31
Lyle Glowka, A Guide to the Convention on Biological Diversity, 30 J. INT. WILDL. LAW POLICY 19, 42
(1994).
32
IUCN/SSC, Guidelines for Reintroductions and Other Conservation Translocations. Version 1.0. Gland,
Switzerland: IUCN Species Survival Commission, viiii + 57, 28 - 30 (2013).
33
Andreas Zedrosser, et al., Brown Bears in Austria 10 Years of Conservation and Actions for the Future, M-
117 UMWELTBUNDESAMT 36, 36 (1999).
34
Record¶14.
35
Record¶13.
36
Id.
37
Id.
38
Record¶14.

19
 Written Submissions of Arctos

2. Ranvicora violated the provisions of the Bern Convention.

Ranvicora’s failure to cooperate with Arctos, to conduct prior study before the reintroduction,

and to control the introduction of bears to Arctos constitute violations to the provision of the Bern

Convention.

a. Ranvicora failed to cooperate with Arctos with respect to the

reintroduction of grey bears.
States parties are mandated to cooperate with each other39concerning, particularly the

conservation of large carnivores40 and invasive alien species.41 State cooperation calls for states to

exchange information and experience, and coordinate their conservation and management actions.42

Although the States involved are neighboring countries which share a border consisting of

forests and privately owned farms,43 Ranvicora did not inform or consult with other countries,

including Arctos, when it proceeded with its reintroduction project.44 Ranvicora also failed to inform

39
Convention on the Conservation of European Wildlife and Natural Habitats [hereinafter Bern
Convention], art. 11.1, Dec. 1, 2009, ETS- No. 104.
40
Standing Committee to the Bern Convention, Recommendation No. 115: Conservation and
Management of Transboundary Populations of Large Carnivores, 2005, Standing Committee to the
Bern Convention, Recommendation No. 148: Conservation of Large Carnivores in the Caucasus,
(December 9, 2010).
41
Standing Committee to the Bern Convention, Recommendation No. 179: Action to Promote and
Complement the Implementation of EU Regulation 1143/2014 on Invasive Alien Species, (December 4,
2015).
42
Arie Trouwborst, et al., Legal Implications of Range Expansions in a Terrestrial Carnivore: The Case of the
Golden Jackal (Canis Aureus) in Europe, 24 BIODIVERS. CONSERV., 2593, 2606 (2015).
43
Record¶1.
44
Record¶12.

20
 Written Submissions of Arctos

Arctos that grey bears had been moving back and forth between the States. 45 Although the

reintroduced grey bears had entered the territory of Artcos, Ranvicora refused to act and claim

accountability.46

b. Ranvicora did not conduct a prior study for an effective or acceptable

reintroduction.
A prior study, taking into consideration the experiences of other States, must be conducted to

ascertain whether the reintroduction would be effective and acceptable.47 This must take into account

that any conservation introduction brings additional risks that species can become invasive aliens

because of the unpredictability of ecological outcomes brought about

by climate change.48 Furthermore, States must adopt measures to prevent or lessen the adverse

impacts caused by the said species.49

Despite the fact that the grey bear’s range has been shifting poleward due to climate change,50

Ranvicora failed to consider this and its potential impact to Arctos,51 most especially that there are no

45
Record¶16.
46
Record¶19.
47
Convention on the Conservation of European Wildlife and Natural Habitats, art. 11.2, Dec. 1, 2009,
ETS- No. 104.
48
Standing Committee to the Bern Convention, Recommendation No. 158: Conservation translocation
under changing climatic conditions, (November 30, 2012).
49
Standing Committee to the Bern Convention, Recommendation No. 159: Effective Implementation of
Guidance for Parties on Biodiversity and Climate Change, (November 30, 2012)
50
Record¶13.
51
Record¶12.

21
 Written Submissions of Arctos

other species of grey bears and large carnivores in Suredia. 52 Despite national scope of the EIA and

the lack of information on the potential impact, Ranvicora proceeded with the reintroduction.53

c. Ranvicora did not control the introduction of grey bears to Arctos.

States are mandated to strictly control the introduction of non-native species, particularly those

that are not naturally occurring or self-sustaining in an environment of a given territory, those that

spreads easily to neighboring countries,54 and those that cause serious harm to biological diversity and

public life.55 Control can be physical, biological, and chemical.56 The grey bears have only lived in

Ranvicora, as evidently shown by the absence of their historic or fossil records in Arctos, 57 making

them non-native in Arctos.

Large carnivores, such as brown bears, travel in long-distance movements due to their low

densities and large spatial requirements.58 This allows them to expand their range from 120 to 1600

km2 for males and 60 to 300 km2 for females.59 In this case, the border between the two states acted as

52
Record¶10.
53
Record¶12.
54
Standing Committee to the Bern Convention, Recommendation 57: Introduction of Organisms Belonging
to Non-Native Species, (May 12, 1997).
55
Standing Committee to the Bern Convention, Recommendation 77: Eradication of non-native terrestrial
vertebrates, (December 3, 1999).
56
Jorge Fernandez Orueta & Yolanda Aranda Ramos, Methods to Control and Eradicate Non-native
Terrestrial Vertebrate Species, 118 NATURE AND ENVIRONMENT, 28-31 (2001).
57
Record¶10.
58
Kami A. Barton, et al., Bears Without Borders: Long-distance Movement in Human-dominated Landscapes, 17
GLOB. ECOL. CONSERV., January 2, 2019.
59
Large Carnivore Initiative for Europe, Brown Bears Ursus Arctos Brown Bear facts
https://www.lcie.org/Large-carnivores/Brown-bear

22
 Written Submissions of Arctos

a pathway60 for the grey bears to cross to Arctos.61 Since their releasing site was near the border, where

the nearest was 50 km to Arctos,62 and that the border consists only of forests and privately-owned

farms,63 the bears easily cross over from Ranvicora to Arctos. Evidently, Ranvicora failed to undertake

measures to strictly control the introduction of the grey bears to Arctos.

II. THE FEDERAL STATE OF ARCTOS DID NOT VIOLATE INTERNATIONAL LAW
WITH RESPECT TO ITS RESPONSES TO RANVICORA’S REINTRODUCTION OF
GREY BEARS.
The acts of setting up the poisoned carcasses in the farms and the implementation of a

regulation permitting the shooting of grey bears spotted in Arctos to address the negative impacts of

the reintroduction project conform with its duties to (a) conserve biological diversity under the CBD

(b) provide special protection under the Bern Convention and (c) prevent transboundary harm.

A. The responses of Arctos were consistent with its duty to conserve biological
diversity under CBD and the Bern Convention.
Arctos’ responses complied with its obligation to conserve biological diversity and in-situ

conservation in controlling alien species under CBD and to use all possible means that are detrimental

to the survival of the grey bears population.

60
“Pathway” means, the geographic route by which a species moves outside its natural range.
61
Record¶16.
62
Record¶14.
63
Record¶1.

23
 Written Submissions of Arctos

1. Arctos’ responses were consistent with its obligation to conserve biological

diversity and in-situ conservation under CBD.
Arctos is duty-bound to conserve biological diversity64 by preventing the introduction of, or

controlling or eradicating, those alien species which threaten ecosystems, habitats, or species. 65 Here,

Arctos complied with these duties by protecting its ecosystem against the invasive alien grey bears that

are endangering their flora and fauna.66

a. The poleward movement of the grey bears does not alter their
invasive character.
The grey bear’s range has been shifting poleward in response to rising temperatures and

shifting vegetation due to climate change.67 Nevertheless, the grey bears are still invasive species by

nature and are a threat to the ecosystem of Arctos.68 Invasive alien species are species, subspecies or

lower taxon, introduced outside its natural past or present distribution, and whose introduction

threaten biological diversity. 69 Pertinently, invasive alien predators are more dangerous than native

64
CBD, art. 1.
65
CBD, art. 8(h).
66
Record¶17.
67
Record¶13.
68
Record¶17.
69
CBD. Sixth Conference of the Parties, The Hague, the Netherlands, 7-19 April 2002: Decision
VI/23: Alien species that threaten ecosystems, habitats or species to which is annexed Guiding principles
for the prevention, introduction and mitigation of impacts of alien species that threaten ecosystems, habitats
or species, Annex 57, p. 257 (2002).

24
 Written Submissions of Arctos

predators70 and are considered a significant cause of the decline and extinction of species worldwide.71

Furthermore, the threat posed by these invasive species is increasing due to climate change.72

b. The responses of Arctos complied with its duty to control alien

species.
States must recognize the risk that activities within their jurisdiction may pose to other States

as a potential source of invasive alien species73 in relation to their duty to control or eradicate the

species. Where it is feasible and cost-effective, the best course of action is to eradicate them at the

earliest stage of invasion.74

The grey bears started to become invasive alien species in 2018 when they crossed to Arctos

subsequently causing damage to their flora and fauna and endangering the lives of the citizens in

Arctos.75 By eradicating the invasive bears in Arctos, the government protected the ecosystem and

maintained the viable population of the Trouwborst tern.

2. The responses of Arctos are lawful under the Bern Convention.

The response of Arctos to address the invasion of grey bears in its state is permissible since

there are (1) no other satisfactory solutions and (2) not detrimental to the survival of the population

concerned.76

70
Pälvi Salo, et al., Alien Predators are more Dangerous than Native Predators to Prey Populations, 274
PROCEEDINGS OF THE ROYAL SOCIETY 1237, 1237-43 (2007).
71
Peter M. Vitousek, Human Domination of Earth’s Ecosystems, 2 SCIENCE 294, 294-99 (1997).
72
CBD Decision VI/23, Alien Species that threaten ecosystems, habitats or species, UNEP/CBD/COP/6/23
(2002) p. 249.
73
Id. at p. 258.
74
Id. at p. 261.
75
Record¶17.
76
Convention on the Conservation of European Wildlife and Natural Habitats, art. 9, Dec. 1, 2009,
ETS- No. 104.
25
 Written Submissions of Arctos

a. There are no other satisfactory solutions.

Competent national authorities of the contracting states are given the discretion to identify

and make necessary comparisons of solutions.77 In AVES ASBL v. Région Wallonne, it was held that it

is important to demonstrate that there are compelling reasons based on the need and its purpose to

justify the derogation.78

Large carnivores have never existed in Arctos.79 Ranvicora's inaction towards addressing the

negative effects of its reintroduction project80 left Arctos to act on its own in protecting its citizens

and its environment.81

b. The means used are not detrimental to the survival of the grey bears.
Where the means employed by the State will not result or worsen the unfavorable conservation

status or not prevent their restoration at a favorable conservation status, taking is permissible. 82 For

instance, the elimination of a limited number of wolves in Finland was allowed as it had no adverse

effect to its conservation status in its natural range.83

77
Standing Committee to the Bern Convention, Revised Resolution No. 2: Scope of Articles 8 and 9
of the Bern Convention, December 2, 2011 ¶7.
78
Case C-10/96, AVES ASBL v Région, Wallonne E.C.R (1996).
79
Record¶17.
80
Record¶21.
81
Record¶23.
82
Case C-342/05, Commission v Finland, 2007, ECR I-4713.
83
John D. C. Linnell, et al., When Is It Acceptable To Kill A Strictly Protected Carnivore? Exploring The Legal
Constraints on Wildlife Management within Europe’s Bern Convention, 21 NATURE CONSERVATION,
129 (2017).

26
 Written Submissions of Arctos

Furthermore, shooting and setting poisoned carcasses are some of the methods allowed

provided that they are selective and are not indiscriminate.84 In the case of poisoning, it must also be

proved that there is no risk for other species, such as in New Zealand wherein due to the absence of

native species of mammals, it is relatively safe to use poison against introduced predators. 85Shooting

order was also issued by the government of Hungary to control alien species. 86 This method differs

from poaching or animal hunting as a sport because the former is carried out with the aim of reducing

the negative impacts on agricultural production and natural resource systems, using the most humane,

target specific, cost effective and efficacious techniques available. 87 Here, the setting up of the

poisoned carcasses in the farms and the issuance of the emergency regulation permitting the shooting

of grey bears are lawful.

B. Arctos did not violate the obligation to protect migratory species under the
Convention on Migratory Species [“CMS”].
The measures of Arctos were in conformity to Article II of CMS and did not constitute a

violation thereof because it falls under the exemptions listed under Article 3.5(d) specifically

extraordinary circumstances.

84
Convention on the Conservation of European Wildlife and Natural Habitats, art. 8, Dec. 1, 2009,
ETS- No. 104.
85
Jorge Fernandez Orueta & Yolanda Aranda Ramos, Methods to Control and Eradicate Non-native
Terrestrial Vertebrate Species, 118 Nature and Environment, 28-31 (2001).
86
Measures for Responding to Invasions: Eradication, Containment or Control. A Guide to Designing
Legal and Institutional Frameworks on Alien Invasive Species IUCN (Claire Shine, et.al.
(2000).
87
Royal Society for the Prevention of Cruelty to Animals, Recreational Hunting and Animal Welfare
(2017) pg 4-5.

27
 Written Submissions of Arctos

1. Arctos has complied with Article II of the CMS.

CMS states that Parties shall endeavour to provide immediate protection for migratory

species.88 When interpreting terms in a treaty, it shall be interpreted in good faith, giving the ordinary

meaning to the terms of the treaty in their context and in the light of its object and purpose. 89

“Endeavour”, in its ordinary sense, means to attempt something--such as fulfilment of towards an

obligation, it does not necessarily need to be successful. 90 Here, Arctos attempted to protect the

interest of the grey bears when it initiated correspondence with Ranvicora to address their concerns.91

However, Arctos was forced to resort to other measures after continued damage persisted and human

casualties and injuries occurred.

2. Arctos’ protective measures did not violate CMS because it was

exempted from the prohibition on taking.
Range States Parties of the CMS are prohibited from taking migratory species listed in its

Appendix I, except when extraordinary circumstances so require.92 The open-ended clause “if

extraordinary circumstances so require” appears to grant States a considerable degree of discretion in

determining when it should be invoked.93

88
CMS, art. 2(3)(b).
89
Vienna Convention on the Law of Treaties, Art. 31(1), May 23, 1969, 1155 U.N.T.S. 331.
90
Endeavour, Merriam - Webster Dictionary, (11th ed.).
91
Record¶18.
92
CMS, art. 3(5)(d).
93
Arie Trouwborst, Aussie Jaws and International Laws: The Australian Shark Cull and the Convention on
Migratory Species, 2 CORNELL INTL. L. JOUR. ONLINE 44, 41-46 (2014).

28
 Written Submissions of Arctos

a. The presence of the grey bears in Arctos is an extraordinary

circumstance.
An extraordinary circumstance is defined as a highly unusual set of facts that are not

commonly associated with a particular thing or event.94 Given that grey bears are invasive and their

unusual presence is foreign to Arctos, the biodiversity of Arctos is jeopardized and native species

could become extinct.95 In line with the purpose of CMS, which is to conserve wild animals in their

innumerable forms as an irreplaceable part of the earth's natural system,96 the biodiversity of Arctos

cannot be jeopardized for the protection of the grey bears. Arctos may also be exempted from the

prohibition against taking97 because it was for the survival of affected native species—specifically the

endangered endemic species of the Trouwborst tern—which were being consumed by the grey bears.

b. The taking of the grey bears is precise, limited, and not

disadvantageous to the targeted species.
The taking was precise as to content, limited in space and time, and did not operate to the

disadvantage of the species.

i. The taking was precise as to content.

It was precise as to content since the method of taking employed was limited98 to specific grey

bears which became invasive and dangerous upon approaching the farm settlements in Arctos. The

setting out of poisoned carcasses was lawful because they were specifically set out near farms that

94
BLACK’S LAW DICTIONARY 277 (4th pocket ed. 2011).
95
COLIN G. SCANES, ANIMALS AND HUMAN SOCIETY, Chapter 1 - Animal Perception Including Differences
with Humans, (2018).
96
CMS, Pmbl. 1.
97
CMS, Art. 3(5)(b).
98
Arie Trouwborst, et al. Border Fences and their Impacts on Large Carnivores, Large Herbivores and Biodiversity:
An International Wildlife Law Perspective, 25 RECIEL 291 (2016).

29
 Written Submissions of Arctos

were previously attacked by grey bears.99 As for the permission to shoot grey bears,100 it was limited to

grey bears sighted in Arctos which also pose a direct threat to human safety.

ii. The taking was limited in space and time.

It was limited in space and time, because the taking was solely conducted within the territory

of Arctos101 and only for such time imperative to contain the movement of the grey bears.102

iii. The taking did not operate to the disadvantage of the grey
bears.
The taking was not disadvantageous to the grey bears because it did not reverse the

sustainability of the grey bear population. Their population growth rate calculated from their

reintroduction in 2013 to present is 19.5%, or an annual increment of 11-12 units. This was calculated

using the formula for calculating percentage growth rate;103 using two cubs as the average number of

offspring from a female bear per alternate year, and the breeding age of 4.5 years old.104 The nine grey

bears lost105 was less than the average annual increment. Therefore, the population growth rate of the

grey bears is still positive and sustainable.

99
Record¶20.
100
Record¶21.
101
Id.
102
Record¶16.
103
PR = ((VPresent-VPast)/VPast x 100)/(Number of Years)).

104
L.P. Glenn, et al.., Reproductive Biology of Female Brown Bears. 3 THIRD INTERNATIONAL CONVENTION
OF BEARS 488, 381-389, (1975).

105
Record¶¶20,21.

30
 Written Submissions of Arctos

C. The responses of Arctos were protective measures and did not constitute a
violation of its duty not to cause transboundary harm.
Arctos did not violate its duty not to cause transboundary harm when it (a) set out poisoned

carcasses near farms previously attacked by grey bears106 and (b) permitted the shooting of grey bears

spotted in Arctos107 as a response to transboundary harm caused by grey bears.

1. Arctos practiced due diligence in carrying out its protective measures.

Due diligence is a standard of conduct to take reasonable precaution to prevent or respond to

certain types of harm.108 Flexibility is an essential characteristic of this standard of conduct such that,

even if a State behaves in a desired manner, it cannot guarantee total prevention of harm. 109 A State

does not breach its customary international law obligation concerning transboundary harm merely by

causing damage; a potentially affected State has to prove a lack of diligent efforts on the part of the

origin State.110

In the instant case, Arctos made efforts to correspond with Ranvicora through diplomatic

notes to address their concern on the grey bear’s movement into Arctos and their subsequent

106
Record¶20.
107
Record¶21.
108
See X. Hanquin, Transboundary Damage in International Law (2003), at 162–165; See, contra,
Barral, ‘Sustainable Development in International Law: Nature and Operation of an
Evolutive Legal Norm’, 23 European Journal of International Law (2012) 377, at 391, who
argues that ‘due diligence’ obligations in international law are obligations ‘to employ best
efforts’.
109
PATRICIA BIRNIE, ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT, OXFORD UNIVERSITY
PRESS, 112 (2009).
110
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and
Construction of a Road in Costa Rica along the San Juan River (Nicar. v. Costa Rica), 2015
I.C.J. 14 (Dec. 16) ¶217.

31
 Written Submissions of Arctos

damage.111 However, Ranvicora refused to take responsibility for the incidents,112 forcing Arctos to

adopt protective measures for the life, property, and environment of Arctos and its people.

2. The protective measures taken were not indiscriminate.

Attacks are indiscriminate if there is no distinction among targets and the means employed are

disproportionate.113 Non-target species are inadvertently killed as a result of these attacks.114 The

employment of guns and poisoned carcasses as protective measures did not result in indiscriminate

attacks. Firstly, the shoot to kill order did not indiscriminately fire at bears and other species; it only

targeted problem bears spotted within the territory of Arctos.115 Secondly, the spreading of poisoned

carcasses did not result in an indiscriminate attack on other species because the delivery of the measure

was area-specific to farms previously attacked by grey bears.116

3. The protective measures did not have a direct negative impact on the
species and Ranvicora.
The protective measures of Arctos did not have a direct negative impact on the grey bear

species with regard to its population sustainability or on Ranvicora’s cultural interest with regard to

the grey bears.

111
Record¶18.
112
Record¶19.
113
J. Leighton Reid, Knowledge and Experience Predict Indiscriminate Bat-Killing Intentions among Costa Rican
Men, 48(3) BIOTROPICA, 394 (2016).
114
Id.
115
Record¶21.
116
Record¶20.

32
 Written Submissions of Arctos

a. The measures did not have a direct negative effect on the grey bear
species because the population growth rate remained positive.
The measures taken resulted in the loss of 9 grey bears. This number does not reverse the

positive annual population growth rate of the grey bear which is calculated at 19.5%, or an annual

increment of 11-12 units.117

b. The measures did not affect the cultural interests of Ranvicora with
respect to the grey bears.
Greys bears are of great value to Ranvicora’s culture. 118 The preservation of the grey bears is

tantamount to the preservation of Ranvicora’s culture. The protective measures of Arctos do not

prejudice Ranvicora’s interest to preserve the survival of the grey bear species because despite the

losses, the grey bears species is still preserved since the population continues to grow at a steady rate.119

B. Assuming arguendo that Arctos caused transboundary harm, the wrongfulness of

its response is precluded because of the necessity to protect the ecological balance
of the environment.

Necessity may be invoked by a State as a ground to preclude the wrongfulness of an act,

provided: (1) the act is the only way for the State to safeguard an essential interest against a grave and

imminent peril; and (2) it does not seriously impair an essential interest of the State or States towards

which the obligation exists, or of the international community as a whole.120

1. The responses of Arctos was the only way for the Arctos to safeguard

an essential interest against a grave and imminent peril.

117
See supra Part II.B.2.b.iii.
118
Record¶17.
119
See supra Part II.B.2.b.iii.
120
Report of the International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongfully Acts, U.N. GAOR, U.N. Doc. A/56/10 (2001), art. 25 ¶1,17.
33
 Written Submissions of Arctos

Invasive alien species is one of the primary threats to biodiversity. 121 Considering there are no

historic or fossil records of grey bear presence in Arctos and no other species of bear or other large

carnivore lives in Suredia,122 the introduction of such invasive mammalian predator would damage the

ecological balance and biodiversity of Arctos. Setting out poisoned carcasses near the farms previously

attacked by the bears123—which are only 5km away from the border[5]—is the only way to prevent

the bears from settling in the environment of Arctos. Since the invasive grey bears are the only large

carnivorous species in Arctos,[6] only they would consume and fall trap to poisoned carcasses.

Conflict between bears and agricultural producers or homeowners may arise where bears cause

damage to people or property in search of food in human settlements.124 For example, fifty-two polar

bears attacked the village of Belushya Guba in Russia for food because climate change melted ice

sheets. Russian officials then declared a state of emergency and adopted measures to combat the

aggression. Officials are considering shooting the polar bears to combat the aggression.125Analogously,

grey bear’s movement poleward126 into human settlements in Arctos is causing conflict between grey

bears and civilians. Granting permission to farmers to shoot grey bears spotted in Arctos 127 is the only

121
CBD Decision, Alien species that threaten ecosystems, habitats or species,
UNEP/CBD/COP/6/20, 249, (2002).
122
Record¶10.
123
Record¶ 20.
124
Record ¶ 17.
125
Record ¶10.
126
Black Bear Conservation Committee, Black bear management handbook for Louisiana, Mississippi,
and east Texas, 28 (1992).
127
Emergency mode introduced on Novaya Zemlya (Feb. 9, 2019), http://dvinanews.ru/-9bgch7xf.
34
 Written Submissions of Arctos

way to protect civilian safety and their property, considering citizens have never dealt with bears

before.

2. The responses did not seriously impair an essential interest of Ranvicora.

The responses of Arctos did not seriously impair an essential interest of Ranvicora because

there are still many other grey bears as a result of the reintroduction project.128 The killing of a small

number of bears does not jeopardize the reintroduction project since it is focused only on the problem

bears within the sovereign territory of Arctos in response to the dangers posed by their presence. 129

E. The responses were valid countermeasures.

The wrongfulness of an act of a State not in conformity with an international obligation

towards another State is precluded if, and to the extent that, the act constitutes a countermeasure

taken against the latter State.130 In the Gabčíkovo-Nagymaros Project case, the ICJ clearly accepted that

countermeasures might justify an otherwise unlawful conduct “taken in response to a previous

internationally wrongful act of another State and … directed against that State.”131 Countermeasures

taken by the State are justified provided that they are (a) proportional and (b) temporary or

reversible.132

128
Record 13.
129
Record 21.
130
ARSIWA, art 22.
131
Gabčíkovo–Nagymaros Project (Hungary v Slovakia) (1997) ICJ Rep 7.
132
Report of the International Law Commission, Draft Articles on the Responsibility of States for
Internationally Wrongful Acts, U.N. GAOR, U.N. Do c. A/56/10 (2001) art. 52
[hereinafter ARSIWA].

35
 Written Submissions of Arctos

1. The responses were proportional.

Proportionality is the principle used to assess the lawfulness of the countermeasures. 133 To be

proportional, countermeasures must be commensurate with the injury suffered, taking into account

the gravity of the internationally wrongful act and the rights in question. 134 In the case of the wolves

in Norway, although they were nationally red-listed as “critically endangered”, the Norwegian

Parliament issued an order to shoot the species to reduce sheep depredation. In comparison to what

happened to the wolves in Norway, we have more reason to address the invasive grey bears. 135

In this case, the public’s safety and homeostasis of the ecosystem were at risk. A life of a child

of tender years was lost and another permanently injured;136 several horses and sheep were killed; apple

orchards and beehives were damaged; eggs and nestlings of the Trouwborst tern were consumed.137

Arctos cannot afford to sustain more damage by not taking action against Ranvicora’s negligence. The

protection of the life of its people and its environment are the duties of the State, thus, the actions

taken by Arctos were only proportional to the damage it sustained.

133
Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102.4 AMERICAN
JOURNAL OF INTERNATIONAL LAW, 715-767 (2008).
134
ARSIWA, art 51.
135
Arie Trouwborst, et al., Norway's Wolf Policy and the Bern Convention on European Wildlife: Avoiding the
“Manifestly Absurd”, 20(2) JOURNAL OF INTERNATIONAL WILDLIFE LAW & POLICY, 155-167
(2017).
136
Record¶21.
137
Record¶17.

36
 Written Submissions of Arctos

2. The responses were reversible.

Countermeasures should be taken in such a way as to permit the resumption of performance

of the obligations in question.138 However, the duty to choose measures that are reversible is not

absolute. It affords flexibility since it may not be possible in all cases to reverse all of the effects of

countermeasures after the occasion for taking them has ceased.139 Here, the poisoned carcasses can

easily be collected and dispensed with once a settlement has been reached or the need for the

countermeasure has ceased; and the permission to shoot grey bears can easily be reversed through the

issuance of an order revoking it.

138
ARSIWA, art. 49(3).
139
ILC Commentary on the Draft Articles on Responsibility of States for Internationally Wrongful
Acts, p. 131 ¶9, 53rd session, A/56/10 (2001).

37
 Written Submissions of Arctos

PRAYER FOR RELIEF

The Federal State of Arctos respectfully requests this Court to adjudge and declare that:

1. Ranvicora violated customary and conventional international law by reintroducing the

grey bears; and

2. Arctos has acted in accordance with its duty to prevent transboundary harm in

addressing the serious negative effects of the reintroduction project.

Respectfully submitted,

Agents of Applicant

38