Team Code: ______R

THE 2018 STETSON

INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

2017 General List No. 220

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO RESPONSES TO HIGHLY PATHOGENIC AVIAN

INFLUENZA AND TRANSBOUNDARY WETLANDS

FEDERAL STATES OF AVES

(APPLICANT)

v.

REPUBLIC OF RENAC

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

REPUBLIC OF RENAC
 TABLE OF CONTENTS

INDEX OF AUTHORITIES....................................................................................................
AUTHORITIES....................................................................................................II

STATEMENT OF JURISDICTION................................................................................
JURISDICTION................................................................................VIII
VIII

QUESTIONS PRESENTED.................................................................................................
PRESENTED.................................................................................................IX
IX

STATEMENT OF FACTS.....................................................................................................
FACTS.....................................................................................................X
X

SUMMARY OF ARGUMENTS..........................................................................................
ARGUMENTS..........................................................................................XI
XI

ARGUMENTS..........................................................................................................................
ARGUMENTS..........................................................................................................................1
1

I. THE REPUBLIC OF RENAC DID NOT VIOLATE INTERNATIONAL LAW

WITH RESPECT TO ITS RESPONSES TO THE 2014 AND 2015 OUTBREAKS OF
HIGHLY PATHOGENIC AVIAN INFLUENZA................................................................1
A. RENAC DID NOT VIOLATE ITS TREATY OBLIGATIONS............................................................1
1. Renac was not prohibited from taking the blue-crowned crane............................2
2. Renac has not violated its obligation to conserve the Marsh................................7
3. Renac did not violate its treaty obligations to cooperate with Aves....................11
B. RENAC DID NOT VIOLATE ITS OBLIGATION NOT TO CAUSE TRANSBOUNDARY HARM
……………………………………………………………………………………...12
C. IN ANY CASE, THE DOCTRINE OF CLEAN HANDS PRECLUDES AVES FROM OBTAINING THE RELIEF IT
SEEKS FROM THIS COURT.........................................................................................................13
II. THE REPUBLIC OF RENAC DID NOT VIOLATE INTERNATIONAL LAW
BY DELISTING THE ADEGURI MARSH AS A RAMSAR SITE AND AS A
TRANSBOUNDARY RAMSAR SITE, AND THE PROPOSED COMPENSATION
WAS ADEQUATE.................................................................................................................14
A. RENAC DID NOT VIOLATE INTERNATIONAL LAW BY DELISTING THE ADEGURI MARSH AS A RAMSAR
SITE AND AS A TRANSBOUNDARY RAMSAR SITE...........................................................................14
1. Renac’s decision to delist is consistent with the Ramsar Convention...................14
2. Renac did not violate its obligations under customary international law............17
3. In any case, the wrongfulness of Renac’s acts is precluded by necessity..............18
B. RENAC’S PROPOSED COMPENSATION WAS ADEQUATE......................................................20
1. Renac fully complied with the precautionary principle........................................20
2. Renac has taken all practicable steps to replace the lost habitat........................21
C. RENAC HAS FULLY DISCHARGED ITS OBLIGATION UNDER ARTICLE 5 OF THE RAMSAR CONVENTION
22
CONCLUSION.....................................................................................................................
CONCLUSION.....................................................................................................................XII
XII
 INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Agreement on the Conservation of African-Eurasian Migratory Waterbirds, Aug. 15, 1996,

2365 U.N.T.S. 251...............................................................................................5, 7, 8, 9, 13

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79..............................10, 11

Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 1651

U.N.T.S. 333............................................................................................................2, 4, 9, 13

Convention on Wetlands of International Importance especially as Waterfowl Habitat, Feb. 2,

1971, 996 U.N.T.S. 245.........................................................................................................7

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.......................1

U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

Anni McLeod et al., Economic and Social Impacts of Avian Influenza, FOOD AND

AGRICULTURE ORGANIZATION OF THE UNITED NATIONS [FAO],

http://www.fao.org/avianflu/documents/Economic-and-social-impacts-of-avian-influenza-

Geneva.pdf (2005)..................................................................................................................6

Conference of the Contracting Parties to the Convention on Wetlands [COP], General

guidance for interpreting "urgent national interests" under Article 2.5 of the Convention

and considering compensation under Article 4.2, Resolution VIII.20 (2002).....................14

Conference of the Contracting Parties to the Convention on Wetlands [COP], Issues

concerning the boundary definitions of Ramsar sites and compensation of wetland habitats,

Resolution VII.23 (1999).....................................................................................................22

Conference of the Contracting Parties to the Convention on Wetlands [COP], New

Guidelines for management planning for Ramsar sites and other wetlands, Resolution

VIII.14 (2002)........................................................................................................................7

I
Conference of the Contracting Parties to the Convention on Wetlands [COP], Overview paper

for workshop B: International Law Requirements, Doc.C.4.7 (1990)...........................21, 23

Draft articles on Responsibility of States for Internationally Wrongful Acts, with

commentaries, [2001] 2 Y.B. Int’l L. Comm’n 31, U.N. Doc. A/56/10..............................19

Draft articles on the law of the non-navigational uses of international watercourses and

commentaries thereto and resolution on transboundary confined groundwater, [1994] 2

Y.B. Int’l L. Comm’n 89, U.N.Doc. A/CN.4/L.489............................................................11

Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with

commentaries, [2001] 2 Y.B. Int’l L. Comm’n 148, U.N. Doc. A/56/10......................12, 17

Food and Agriculture Organization of the United Nations [FAO], Biosecurity for Highly

Pathogenic Avian Influenza: Issues and Options (2008), http://www.fao.org/3/a-i0359e.pdf

................................................................................................................................................4

G.A. Res.56/83, Responsibility of States for internationally wrongful acts (Jan. 28, 2002). .18,

19

Jan Hinrichs et al., Some Direct Costs of Control for Avian Influenza, FOOD AND

AGRICULTURE ORGANIZATION OF THE UNITED NATIONS [FAO],

http://www.fao.org/docs/eims/upload/213699/agal_AI_210906.pdf (2006).........................4

Meeting of the Parties to the Agreement on African-Eurasian Waterbird [MOP], Responding

to the spread of highly pathogenic avian influenza H5N1, UNEP/AEWA/MOP4/Res. 4.15

(2008).....................................................................................................................................9

Ramsar Advisory Mission [RAM], Report No. 46: Mühlenberger Loch Ramsar Site, Federal

Republic of Germany (Sept. 24-26, 2001).....................................................................14, 15

Ramsar Advisory Mission [RAM], Report No. 54: Wetlands of Central Kolkheti, Georgia

(Aug. 14-19, 2005)...............................................................................................................21

Ramsar Advisory Mission [RAM], Report No. 59: Tanzania (Feb. 17-29, 2008)..................22

II
Ramsar Advisory Mission [RAM], Report No. 64: Åkersvika, Norway (Apr. 8-9, 2010).....20,

21, 22

Ramsar Convention Secretariat, An Introduction to the Convention on Wetlands, Handbook 1

(5th ed. 2016),

http://www.ramsar.org/sites/default/files/documents/library/handbook1_5ed_introductionto

convention_e.pdf....................................................................................................................8

Ramsar Doc.C.4.7....................................................................................................................23

Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (Aug. 12,

1992)............................................................................................................11, 12, 16, 17, 20

Rio+20 Conference on Sustainable Development, U.N. Doc. A/CONF.216/L.1 (June 19,

2012)..............................................................................................................................16, 20

Roberto Ago, Addendum - Eighth report on State responsibility [1980] 2 Y.B. Int'l L.

Comm'n 14, U.N. Doc A/CN.4/318/Add.5–7......................................................................19

Standing Committee of the Convention on Wetlands [StC], Analysis and recommendations of

IUCN’s Environmental Law Centre (Decision SC24-10) on Revisions to Ramsar sites

boundaries, interpretation of Articles 2.5 and 4.2, (Resolution VII.23, paragraphs 9, 10, 11

& 13), Ramsar Doc.SC. 25.08 (2000)............................................................................15, 16

Stockholm Declaration, U.N Doc.A/CONF.48/14/Rev.1 (June 16, 1972)..............................16

World Health Organization, Avian influenza: assessing the pandemic threat,

WHO/CDS/2005.29 (Jan, 2005)..........................................................................................15

JUDICIAL DECISIONS

International Court of Justice

Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bos. v. Ser.), Judgment, 2007 I.C.J. Rep. 43 (Feb. 26)......................................................18

III
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo. v. Belg.), Judgment, 2002 I.C.J Rep.

137 (Feb. 14) (dissenting opinion by Van den Wyngaret, J.)..............................................13

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. Rep. 665 (Dec. 16) (separate opinion by Dugard, J.)........................................23

Gabčíkovo–Nagymaros Project (Hung v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept 25). .18,

20

Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8) 12

Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. Rep. 161 (Nov. 6)...................................13

Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 14 (Apr. 20)...12,

17, 18

Permanent Court of International Justice

Diversion of Water from Meuse (Neth. v. Belg.), Judgment, 1937 P.C.I.J. (ser.A/B) No.70

(June 28)...............................................................................................................................13

ITLOS

MOX Plant (Ir. v. U.K.), Case No. 10, Order of Dec 3. 2001, 42 ILM 1187 (ITLOS, 2001). 17

Arbitral Awards

Administrative Decision No. II (U.S. v. Ger.), 7 R.I.A.A. 23 (U.S.-Ger Mixed Cl. Comm’n

1923)....................................................................................................................................18

Alabama claims of the United States of America against Great Britain (U.K. v. U.S.), 29

R.I.A.A. 125 (Arb. Trib. 1872)............................................................................................17

Dix case, 9 R.I.A.A. 119 (American-Venez. Comm’n 1902)..................................................18

Russian Indemnity Case (Russ. v. Turk.), 9 R.I.A.A. 421 (Perm. Ct. Arb. 1912)...................20

IV
Trail Smelter Arbitral Decision (U.S. v. Can.), 3 .R.I.A.A. 1905 (Perm. Ct. Arb.1938/1941)

..................................................................................................................................12, 17, 18

Domestic Cases

Commonwealth of Australia v State of Tasmania, [1983] HCA 21 (Aus. High Ct. 1983).....10

Smith v. Philadelphia Transp. Co., 173 F.2d 721 (3rd Cir. 1949)...........................................18

BOOKS AND TREATISES

INGVILD JAKOBSEN, MARINE PROTECTED AREAS IN INTERNATIONAL LAW: AN ARCTIC

PERSPECTIVE (2016).............................................................................................................22

JULIO BARBOZA, THE ENVIRONMENT, RISK AND LIABILITY IN INTERNATIONAL LAW (2011)

..............................................................................................................................................18

LYLE GLOWKA et al., A GUIDE TO THE CONVENTION ON BIOLOGICAL DIVERSITY (1994)....10

MICHAEL BOWMAN, PETER DAVIES & CATHERINE REDGWELL, LYSTER’S INTERNATIONAL

WILDLIFE LAW (2nd ed., 2010)..........................................................................................6, 7

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (2003)..........................12

ESSAYS, ARTICLES AND JOURNALS

Arie Trouwborst et al., Border Fences and their Impacts on Large Carnivores, Large

Herbivores and Biodiversity: An International Wildlife Law Perspective, 25 REV. EUR.

COMP. & INT’L ENV’T L. 291 (2016)...................................................................................10

Arie Trouwborst, Aussie Jaws and International Laws: The Australian Shark Cull and the

Convention on Migratory Species, 2 CORNELL INT’L L. J. ONLINE 41 (2014)..................2, 4

Burhenne-Guilmin & Casey-Lefkowitz, The Convention on Biological Diversity: a hard won

global achievement, 3 Y.B. INT’L. ENV’T. L 43 (1992).................................................10, 22

Camille Lebarbenchon et al., Persistence of Highly Pathogenic Avian Influenza Viruses in

Natural Ecosystems, 16 EMERG. INFECT. DISEASES 1057 (2010)..........................................8

V
Christiaan Both et. al., Climate change and population declines in a long-distance migratory

bird, 441 NATURE 81 (2006)................................................................................................18

David Stallknecht et al., Avian Influenza Virus in Aquatic Habitats: What Do We Need to

Learn?, 54 AVIAN DIS. 461 (2010)........................................................................................8

Eugene Rice et al., Chlorine Inactivation of Highly Pathogenic Avian Influenza Virus

(H5N1), 13 EMERG. INFECT. DISEASES 1568 (2007).............................................................8

Gerald Fitzmaurice, The General Principles of International Law, Considered from the

Standpoint of the Rule of Law, 92 RECUEIL DES COURS 1 (1957).......................................13

Harjanto Djunaidi & Andrew Djunaidi, The Economic Impacts of Avian Influenza on World

Poultry Trade and the U.S. Poultry Industry: A Spatial Equilibrium Analysis, 39 J. AGR.

APPL. ECON. 313 (2007).........................................................................................................3

Joachim Otte et al., Impacts of avian influenza virus on animal production in developing

countries, 3 CAB REV. 1 (2008)............................................................................................4

Justin Brown et al., Persistence of H5 and H7 Avian Influenza Viruses in Water, 51 AVIAN

DIS. 285 (2007)......................................................................................................................9

Juthatip Keawcharoen et al., Wild Ducks as Long-Distance Vectors of Highly Pathogenic

Avian Influenza Virus (H5N1), 14 EMERG. INFECT. DISEASES 600 (2008)...........................5

Malik Peiris et al., Avian Influenza Virus (H5N1): a Threat to Human Health, 20 CLIN.

MICROBIOL. REV. 243 (2007).................................................................................................3

Marius Gilbert et al., Anatidae migration in the Western Palearctic and Spread of Highly

Pathogenic Avian Influenza H5N1 Virus, 12 EMERG INFECT DISEASES 1650 (2006)...........5

Michael Bowman, The Ramsar Convention Comes of Age, 42 NETH. INT’L L. REV. 1 (1995)

..............................................................................................................................................11

Olubunmi Fasanmi et al., Public health concerns of highly pathogenic avian influenza H5N1

endemicity in Africa, 10 VET. WORLD 1194 (2017)..............................................................4

VI
Richard Wright, Causation in Tort Law, 73 CAL. L. REV. 1735 (1985).................................18

Roman Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3

YALE HUM. RTS & DEV. L. J. 1 (2000)...............................................................................19

Simon Lyster, The Convention on the Conservation of Migratory Species of Wild Animals

(The Bonn Convention), 29 NAT. RESOURCES J. 979 (1989).................................................9

MISCELLANEOUS

Avian Influenza: Question and Answers, FOOD AND AGRICULTURAL ORGANIZATION OF THE

UNITED NATIONS, http://www.fao.org/avianflu/en/qanda.html.............................................3

Fowl Plague & Grippe Aviaire, Avian Influenza, WORLD ORGANISATION FOR ANIMAL

HEALTH,

http://www.oie.int/fileadmin/Home/eng/Animal_Health_in_the_World/docs/pdf/Disease_c

ards/HPAI.pdf........................................................................................................................3

Scientific Task Force on Avian Influenza, Avian Influenza and Wild Birds, UNITED NATIONS

ENVIRONMENTAL PROGRAMME , http://www.unep-

aewa.org/sites/default/files/publication/ai_brochure_english.pdf........................................15

VII
 STATEMENT OF JURISDICTION

The Federal States of Aves and the Republic of Renac (collectively ‘the Parties’) hereby

submit the present dispute concerning Questions Related to Highly Pathogenic Avian

Influenza and a Transboundary Wetland to the International Court of Justice (‘the Court’).

Pursuant to Article 40(1) of the Statute of the International Court of Justice the Parties have

concluded a Special Agreement, in Cape Town, South Africa on the 4 th day of July, 2017 and

it has been submitted to the Registrar of the Court.

The Parties have accepted the jurisdiction of this Court in accordance with Article 36(1) of

the Statute of the Court. As provided in Article IV (1) of the Special Agreement, each party

shall accept the judgment of the Court as final and binding and shall execute it in good faith.

VIII
 QUESTIONS PRESENTED

I. WHETHER THE REPUBLIC OF RENAC VIOLATED INTERNATIONAL LAW WITH

RESPECT TO ITS RESPONSES TO THE 2014 AND 2015 OUTBREAKS OF HIGHLY

PATHOGENIC AVIAN INFLUENZA.

II. WHETHER THE REPUBLIC OF RENAC VIOLATED INTERNATIONAL LAW BY

DELISTING THE ADEGURI MARSH AS A RAMSAR SITE AND AS A

TRANSBOUNDARY RAMSAR SITE, AND PROVIDED ADEQUATE

COMPENSATION.

IX
 STATEMENT OF FACTS

The Federal States of Aves (‘Aves’) and the Republic of Renac (‘Renac’) are neighboring

States. Renac is a developing country with an economy based on poultry production. Aves

and Renac share a transboundary wetland, the Adeguri Marsh, which is listed as a Wetland of

International Importance under the Ramsar Convention. The 20000 hectare Marsh provides

habitat to wild waterbirds, including the endangered blue-crowned crane. Both States have

experienced outbreaks of highly pathogenic avian influenza (‘HPAI’) in 2009 and 2012.

In response to the outbreaks of HPAI in 2014 and 2015 in Renac which is believed to have

originated from Aves, Renac culled potentially infected wild waterbirds including the blue-

crowned cranes and dispensed disinfectants into the Adeguri Marsh in 2015 to prevent further

spread of the virus. The outbreaks had caused the death of citizens, food shortages to

subsistence poultry farmers and financial losses to commercial poultry facilities in Renac.

In order to prevent cross-infection between wildbirds and its domestic poultry in the future,

Renac decided to delist its portion of the Adeguri Marsh as a Ramsar site and as a

Transboundary Ramsar Site. Renac conducted an Environmental Impact Assessment with

respect to this plan, involving Aves’ citizens, its government and relevant stakeholders in the

process. In October, 2016 it cited urgent national interests and officially delisted its portion of

the Marsh. It proposed to compensate for the same by enhancing and designating a 17000

hectare coastal salt marsh, which Aves claims to be inadequate.

X
 SUMMARY OF ARGUMENTS

I.

Renac did not violate its treaty obligations under the Convention on the Conservation of

Migratory Species of Wild Animals (‘CMS’), the Agreement on the Conservation of African-

Eurasian Migratory Waterbirds (‘AEWA’), the Convention on Wetlands of International

Importance especially as Waterfowl Habitat (‘Ramsar Convention’) and the Convention on

Biological Diversity (‘CBD’). Renac was exempted from its prohibition on culling the blue-

crowned crane. Further, Renac complied with its obligation to conserve the Adeguri Marsh

by fighting the HPAI outbreak and also discharged its obligation to cooperate with Aves.

Additionally, Renac did not violate its duty not to cause transboundary harm under customary

international law as there exists no causation.

II.

Renac did not violate its obligations under the Ramsar Convention by delisting its portion of

the Adeguri Marsh as it was a valid exercise of its sovereign right with respect to the Marsh.

Renac fully discharged its obligations under the Ramsar Convention to adequately

compensate for the delisting by complying with the precautionary principle and by

cooperating with Aves and the other Parties to the Convention. Furthermore, it did not violate

its duty not to cause transboundary harm as it discharged its due diligence obligations.

XI
 ARGUMENTS

I. THE REPUBLIC OF RENAC DID NOT VIOLATE INTERNATIONAL LAW

WITH RESPECT TO ITS RESPONSES TO THE 2014 AND 2015 OUTBREAKS
OF HIGHLY PATHOGENIC AVIAN INFLUENZA.
In response to the HPAI outbreaks in Renac in 2014 and 2015, Renac culled wild waterbirds

including the endangered blue-crowned crane1 and dispensed disinfectants into the Adeguri

Marsh (‘Marsh’)2 to prevent the spread of the virus. Renac submits that its responses are in

conformity with both its treaty obligations (A) as well as its obligations under customary

international law (B). In any case, the doctrine of clean hands precludes Aves from obtaining

the relief it seeks from this Court (C).

A. RENAC DID NOT VIOLATE ITS TREATY OBLIGATIONS.

Parties must comply with their treaty obligations in good faith, pursuant to the principle of

pacta sunt servanda.3 Renac submits that it did not violate its obligations to prohibit the

taking of the blue-crowned crane (1), conserve the Marsh (2) and cooperate with Aves (3)

under the CMS, AEWA, Ramsar Convention and CBD, all of which Aves and Renac are

Parties to.4

1. Renac was not prohibited from taking the blue-crowned crane.

1
Record, ¶¶19, 24.
2
Record, ¶24.

3
Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331.

4
Record, ¶¶5-7.

1
 a. Renac has not violated its obligation to prohibit the taking of endangered migratory
species under the CMS.
Article III(5) of the CMS prohibits Parties that are Range States from the “taking of”

endangered migratory species listed in Appendix I.5 This includes any act of deliberate killing

or attempt to engage in such conduct. 6 However, Range States may be exempt from this

obligation if “extraordinary circumstances so require”. 7 Renac being a Range state under the

CMS for the blue-crowned crane,8 an endangered species under Appendix I,9 is not in

violation of its obligation as it has validly invoked the exception 10 due to the existence of

such extraordinary circumstances (i) and absence of reasonable alternative actions to respond

to the HPAI outbreaks in its territory (ii). Additionally, culling the blue-crowned cranes will

not operate to the disadvantage of the species (iii).

i. The HPAI outbreaks in Renac were extraordinary circumstances that required Renac
to cull the blue-crowned crane.
While the phrase “extraordinary circumstances” has not been defined in the text of the CMS,

Parties have a considerable degree of discretion in determining such circumstances. 11 HPAI

H5N1 outbreaks pose a serious threat to human life as the virus can be transmitted from

poultry to humans with fatal consequences.12 Though the virus does not spread among

humans, studies have shown that only a minor reassortment is necessary for the disease to

5
Convention on the Conservation of Migratory Species of Wild Animals art. III(5), June 23, 1979, 1651
U.N.T.S. 333 [hereinafter CMS].
6
CMS, art. I(1)(i).
7
CMS, art. III(5)(d).
8
Record, ¶13.
9
Record, ¶13.
10
Clarifications, A10.
11
Arie Trouwborst, Aussie Jaws and International Laws: The Australian Shark Cull and the Convention on
Migratory Species, 2 CORNELL INT’L L. J. ONLINE 41, 42 (2014) [hereinafter Trouwborst].
12
Malik Peiris et al., Avian Influenza Virus (H5N1): a Threat to Human Health, 20 CLIN. MICROBIOL. REV. 243,
245 (2007).

2
become a human pandemic.13 Further, HPAI outbreaks have serious economic implications

due to substantial losses to the poultry industry and possible poultry trade restrictions. 14 Such

consequences were seen in Renac where the 2014 and 2015 outbreaks led to the death its

citizens, caused food shortages to the subsistence poultry farmers and financial losses to the

commercial poultry facilities15 thereby constituting extraordinary circumstances.

The spread of HPAI among poultry farms is largely through the fecal-oral and respiratory

routes as close contact between poultry and wild waterfowl facilitates transmission of the

virus.16 This likelihood of transmission was higher due to the presence of hundreds of poultry

farms and facilities near the Marsh in Renac.17 Therefore, culling the potentially infected wild

waterbirds including the blue-crowned crane 18 was essential to limit the spread of the virus

and contain the HPAI outbreaks.

ii. Renac had no other reasonable alternatives to contain the HPAI outbreak.

13
Avian Influenza: Question and Answers, ¶A4, FOOD AND AGRICULTURAL ORGANIZATION OF THE UNITED
NATIONS, http://www.fao.org/avianflu/en/qanda.html (last visited Nov. 15, 2017).
14
Harjanto Djunaidi & Andrew Djunaidi, The Economic Impacts of Avian Influenza on World Poultry Trade
and the U.S. Poultry Industry: A Spatial Equilibrium Analysis, 39 J. AGR. APPL. ECON. 313, 314 (2007).
15
Record, ¶¶19, 24.

16
Fowl Plague & Grippe Aviaire, Avian Influenza, WORLD ORGANISATION FOR ANIMAL HEALTH, at 5,
http://www.oie.int/fileadmin/Home/eng/Animal_Health_in_the_World/docs/pdf/Disease_cards/HPAI.pdf (last
visited Nov. 15, 2017).
17
Record, ¶10.
18
Record, ¶¶17, 21.

3
To validly invoke the given exception clause under the CMS, there must be no reasonable

alternatives to respond to the extraordinary circumstances. 19 While enhancement of

biosecurity on poultry farms can limit HPAI transmission from one species to another, 20

implementation of the same is financially unviable in developing countries. 21 Biosecurity

measures such as building sheds to confine poultry in commercial and backyard poultry

farms involve substantial investment costs and increase costs of feeding the poultry. 22 Even

countries like Nigeria and Egypt that are economically more developed than Renac have been

unable to adhere to these standards.23 Therefore, as a developing country, 24 Renac could not

have implemented biosecurity measures as an alternative to contain the outbreaks.

iii. Culling the blue-crowned crane will not operate to the disadvantage of the species.
The taking of endangered migratory species under extraordinary circumstances is justified if

such taking does not operate to the disadvantage of the species. 25 The HPAI outbreaks in

Renac were the cause of mortality in 750 wild waterbirds including 200 blue-crowned

cranes.26 Studies suggest that certain wild birds can act as vectors of the disease by shedding

the virus along their migratory flyways.27 This was observed in the HPAI outbreaks in
19
Trouwborst, supra note 11, at 42.

20
Food and Agriculture Organization of the United Nations [FAO], Biosecurity for Highly Pathogenic Avian
Influenza: Issues and Options, at 23 (2008), http://www.fao.org/3/a-i0359e.pdf.

21
Joachim Otte et al., Impacts of avian influenza virus on animal production in developing countries, 3
CAB REV. 1, 8 (2008).

22
Jan Hinrichs et al., Some Direct Costs of Control for Avian Influenza, at 6, FOOD AND AGRICULTURE
ORGANIZATION OF THE UNITED NATIONS [FAO],
http://www.fao.org/docs/eims/upload/213699/agal_AI_210906.pdf (2006).

23
Olubunmi Fasanmi et al., Public health concerns of highly pathogenic avian influenza H5N1 endemicity in
Africa, 10 VET. WORLD 1194, 1197 (2017).

24
Record, ¶1.
25
CMS, art. III(5).
26
Record, ¶¶16, 20.
27
Juthatip Keawcharoen et al., Wild Ducks as Long-Distance Vectors of Highly Pathogenic Avian Influenza
Virus (H5N1), 14 EMERG. INFECT. DISEASES 600, 604 (2008).

4
Turkey, Romania, Ukraine and other countries in Western Europe. 28 Since the blue-crowned

cranes could be carriers of the virus,29 culling the potentially infected blue-crowned cranes

and other wild waterbirds will ensure that the HPAI virus does not spread further and thereby

not operate to the disadvantage of the species.

b. Renac has not violated its obligation to prohibit the taking of endangered migratory
waterbirds under the AEWA.
The AEWA obligates Parties to accord the same protection for endangered migratory

waterbirds as provided under Article III(5) of the CMS.30 In particular, Parties are to prohibit

the taking of such birds in their territory. 31 However, Parties may be exempted from this

obligation, where there is no other satisfactory solution, in the interests of public health and

public safety, or for other imperative reasons of overriding public interest, including those of

a social or economic nature.32 Renac is not in breach of its obligation as it has validly invoked

the given exemption33 to protect the health of its citizens and its economic interests (i) there

being no other satisfactory solution available to it (ii). Further, such culling would not be to

the detriment of the population of the blue-crowned crane (iii).

i. Renac culled the blue-crowned to protect public health and its economic interests.
The HPAI outbreaks in Renac resulted in severe consequences to Renac’s population and its

poultry industry.34 Considering that its economy was based primarily on poultry production, 35
28
Marius Gilbert et al., Anatidae migration in the Western Palearctic and Spread of Highly Pathogenic Avian
Influenza H5N1 Virus, 12 EMERG INFECT DISEASES 1650, 1653 (2006).

29
Clarifications, A36.
30
Agreement on the Conservation of African-Eurasian Migratory Waterbirds art. III(2)(a), Aug. 15, 1996, 2365
U.N.T.S. 251 [hereinafter AEWA].
31
AEWA, annex 3, Action Plan, § 2.1.1(a).
32
AEWA, annex 3, Action Plan, § 2.1.3(b).
33
Clarification, A11.
34
Record, ¶¶19, 24.
35
Record, ¶¶1, 10.

5
Renac’s response of culling the blue-crowned cranes to contain the outbreaks was necessary

to protect both the health of its citizens and its economic interests.

ii. No other satisfactory solutions to combat the HPAI outbreaks existed.

To invoke the given exemption under the AEWA, there must be no satisfactory solution to the

problem in question, which entails that alternative approaches are ineffective or

impracticable.36 With regards to preventing the spread of HPAI outbreaks, solutions such as

implementation of stringent biosecurity measures on poultry farms are financially

impracticable in developing countries.37 Since there were no satisfactory alternatives

available, Renac’s act of culling the blue-crowned cranes was not in breach of its obligation.

iii. Culling the blue-crowned crane will not operate to the detriment of its population.
The exemptions to the taking of birds shall not operate to the detriment of the populations of

such birds.38 Therefore, such taking must not be pursued to the extent of precipitating the

extinction of the population in question.39 As aforementioned,40 culling the potentially

infected blue-crowned cranes was intended to curb the spread of the HPAI virus and therefore

not to their detriment.

2. Renac has not violated its obligation to conserve the Marsh.

a. Renac has complied with its obligation to conserve listed wetlands under the Ramsar
Convention.
The Ramsar Convention obligates Parties to promote the conservation of wetlands included

in the List of Wetlands of International Importance (‘List’) and as far as possible, ensure the

36
MICHAEL BOWMAN, PETER DAVIES & CATHERINE REDGWELL, LYSTER’S INTERNATIONAL WILDLIFE LAW
319 (2nd ed., 2010) [hereinafter Lyster].

37
Anni McLeod et al., Economic and Social Impacts of Avian Influenza, at 7, FOOD AND AGRICULTURE
ORGANIZATION OF THE UNITED NATIONS [FAO], http://www.fao.org/avianflu/documents/Economic-and-social-
impacts-of-avian-influenza-Geneva.pdf (2005).

38
AEWA, annex 3, Action Plan, § 2.1.3.
39
Lyster, supra note 36, at 320.
40
See supra part I.A.1.a.iii.

6
wise use of wetlands in their territory. 41 Subsequent practice under the Convention does not

make any distinction between ‘conservation’ and ‘wise use’42 with both obligations aimed at

ensuring the maintenance of the ecological character of the wetland. 43 In cases of threats to

wetlands, Parties are required to actively intervene to diminish the same, bearing in mind the

biological diversity of the wetland.44

Renac dispensed bleach into the Marsh,45 a listed wetland,46 to combat the 2015 HPAI

outbreak in its territory. The HPAI H5N1 virus is found to survive in wetlands 47 and can be

transmitted to wild waterfowl through the fecal-oral route via contaminated water. 48 Studies

have shown that disinfection by bleach or sodium hypochlorite solution inactivates the H5N1

virus in water.49

Drainage from Aves’ poultry facilities had contaminated the Marsh with the HPAI virus that

caused the death of 250 wild waterbirds.50 Therefore, by dispensing bleach, Renac sought to

41
Convention on Wetlands of International Importance especially as Waterfowl Habitat art. 3.1, Feb. 2, 1971,
996 U.N.T.S. 245 [hereinafter Ramsar Convention].
42
Conference of the Contracting Parties to the Convention on Wetlands [COP], New Guidelines for
management planning for Ramsar sites and other wetlands, ¶5, Resolution VIII.14 (2002).
43
Lyster, supra note 36, at 417.

44
Ramsar Convention Secretariat, An Introduction to the Convention on Wetlands, at 16, Handbook 1 (5th ed.
2016),
http://www.ramsar.org/sites/default/files/documents/library/handbook1_5ed_introductiontoconvention_e.pdf.

45
Clarifications, A46.
46
Record, ¶9.
47
David Stallknecht et al., Avian Influenza Virus in Aquatic Habitats: What Do We Need to Learn?, 54 AVIAN
DIS. 461, 461 (2010).
48
Camille Lebarbenchon et al., Persistence of Highly Pathogenic Avian Influenza Viruses in Natural
Ecosystems, 16 EMERG. INFECT. DISEASES 1057, 1060 (2010).
49
Eugene Rice et al., Chlorine Inactivation of Highly Pathogenic Avian Influenza Virus (H5N1), 13 EMERG.
INFECT. DISEASES 1568, 1569 (2007).
50
Record, ¶20.

7
inactivate the virus and prevent further spread of infection amongst the wild waterbirds at the

Marsh51 in conformity with its obligation to conserve listed wetlands.

b. Renac has fulfilled its obligation to conserve migratory waterbirds under the AEWA.
Parties to the AEWA are obligated to take measures to conserve migratory waterbirds, giving

special attention to endangered species.52 In furtherance of this, Parties are to encourage the

rehabilitation and restoration of habitats for migratory waterbirds within their territory.53

Outbreaks of HPAI can cause severe mortality in migratory waterbirds leading to significant

reduction in their population.54 Since the virus can survive for longer durations in freshwater

habitats55 like the Marsh56 risk of infection is higher. Having already caused the death of 50

blue-crowned cranes in 2015,57 inactivation of the virus by dispensing disinfectants was

essential to conserve the population of blue-crowned cranes wintering at the Marsh in the

near future.

c. Renac has not violated its obligation to conserve the habitat of endangered migratory
species under the CMS.
Article III(4)(a) of the CMS requires Range States of an endangered migratory species to

endeavour to conserve, and where feasible and appropriate, restore their habitats which are of

importance in removing the species from danger of extinction. 58 The travaux preparatoires of

the CMS indicates that the term “endeavour” was specifically incorporated in the Convention

51
Record, ¶11.
52
AEWA, art. III(1).
53
AEWA, art. III(2)(c).
54
Meeting of the Parties to the Agreement on African-Eurasian Waterbird [MOP], Responding to the spread of
highly pathogenic avian influenza H5N1, Appendix 3 at 38, UNEP/AEWA/MOP4/Res. 4.15 (2008).
55
Justin Brown et al., Persistence of H5 and H7 Avian Influenza Viruses in Water, 51 AVIAN DIS. 285, 287
(2007).
56
Record, ¶9.
57
Record, ¶20.
58
CMS, art. III(4)(a).

8
to afford parties a degree of discretion in the performance of their obligations. 59 Accordingly,

the obligation is one of effort rather than result 60 and only requires Parties to strive to achieve

the identified objectives.61

The presence of the HPAI virus in the Marsh62 made it imperative for Renac to dispense

disinfectants to prevent further infection amongst the wild waterbirds in compliance with its

obligation to conserve the habitat of the blue-crowned crane. Since this obligation was not

absolute, even assuming that Renac’s response led to the reduction in the number of

waterbirds including the blue-crowned cranes at the Marsh, Renac cannot be held to be in

breach of its obligation under the CMS.

d. Renac has not breached its in-situ conservation duties under the CBD
The CBD requires Parties to implement measures for in-situ conservation of biodiversity only

“as far as possible and as appropriate”. 63 Such a formulation is reflective of the principle of

common but differentiated responsibilities64 implying that implementation of the Convention

must be proportional to the capabilities, conditions and resources of each Party. 65 In this

context, economic and social development and eradication of poverty are the overriding

priorities of developing country Parties.66

59
Simon Lyster, The Convention on the Conservation of Migratory Species of Wild Animals (The Bonn
Convention), 29 NAT. RESOURCES J. 979, 987 (1989).

60
Arie Trouwborst et al., Border Fences and their Impacts on Large Carnivores, Large Herbivores and
Biodiversity: An International Wildlife Law Perspective, 25 REV. EUR. COMP. & INT’L ENV’T L. 291, 299
(2016).

61
Commonwealth of Australia v State of Tasmania, [1983] HCA 21, 530 (Aus. High Ct. 1983).

62
Record, ¶20.
63
Convention on Biological Diversity art. 8, June 5, 1992, 1760 U.N.T.S. 79 [Hereinafter CBD].

64
LYLE GLOWKA et al., A GUIDE TO THE CONVENTION ON BIOLOGICAL DIVERSITY 4 (1994).

65
Burhenne-Guilmin & Casey-Lefkowitz, The Convention on Biological Diversity: a hard won global
achievement, 3 Y.B. INT’L. ENV’T. L 43, 51 (1992) [hereinafter Guilmin].
66
CBD, preamble, art. 20(4).

9
The 2015 HPAI outbreak caused the death of three people, food shortages for Renac’s

citizens, temporary closure of poultry farms and financial losses for the commercial poultry

facilities in Renac.67 As a developing country with an economy based on poultry production, 68

Renac was entitled to prioritize the needs of its people and its economic conditions.

Therefore, disinfecting the Marsh was in accordance with Renac’s limited and differential

duties under the CBD.

3. Renac did not violate its treaty obligations to cooperate with Aves.
The Ramsar Convention requires Parties to consult and endeavour to coordinate with each

other in cases of shared wetlands.69 Similarly, Parties to the CBD are required to cooperate, as

far as possible and as appropriate, on matters of mutual interest for the conservation of

biodiversity.70 Timely notification to potentially affected States and subsequent consultation

are key elements of cooperation in cases of transboundary environmental risk. 71 However,

Parties need not engage in extensive consultations where planned measures require urgent

implementation in order to protect public health and safety. 72 Since the HPAI outbreaks

necessitated urgent action by Renac to protect its citizens, the prior notification to Aves

regarding the planned response73 and reasons for the same74 fulfilled Renac’s cooperation

obligations under the Ramsar Convention and CBD.

67
Record, ¶¶19, 24.
68
Record, ¶1.
69
Ramsar Convention, art. 5.
70
CBD, art. 5.

71
Rio Declaration on Environment and Development, Principle 19, UN Doc. A/CONF.151/26 (Aug. 12, 1992)
[hereinafter Rio Declaration]; Michael Bowman, The Ramsar Convention Comes of Age, 42 NETH. INT’L L.
REV. 1, 23 (1995).

72
Draft articles on the law of the non-navigational uses of international watercourses and commentaries
thereto and resolution on transboundary confined groundwater, at 118, [1994] 2 Y.B. Int’l L. Comm’n 89,
U.N.Doc. A/CN.4/L.489.

73
Record, ¶¶17, 21.
74
Record, ¶¶18, 23.

10
 B. RENAC DID NOT VIOLATE ITS OBLIGATION NOT TO CAUSE TRANSBOUNDARY HARM.
States are obligated under customary international law to ensure that activities within their

jurisdiction or control do not cause harm or injury to other States. 75 To prove transboundary

harm there must be a causal link between the activity and the harm caused. 76 Such causation

must be established by “clear and convincing evidence”77 as required by this Court in the

Pulp Mills case.78

Though Aves has been monitoring the ecology of the Marsh79 for over two years,80 it has

been unable to determine the effects the disinfectants may have had on the wetland or

produce any evidence that the dispensation caused a reduction in fish population. Since there

has been no significant degradation in water quality in the Marsh in Aves81 no clear causal

link can be established between Renac’s response and the reduction in the number of wild

waterbirds.

C. IN ANY CASE, THE DOCTRINE OF CLEAN HANDS PRECLUDES AVES FROM OBTAINING THE RELIEF IT SEEKS
FROM THIS COURT.

75
Legality of Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶29 (July 8); Trail Smelter
Arbitral Decision (U.S. v. Can.), 3 .R.I.A.A. 1905, 1965 (Perm. Ct. Arb.1938/1941) [hereinafter Trail Smelter];
Rio Declaration, supra note 71, Principle 2.

76
Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, with commentaries, at
148, [2001] 2 Y.B. Int’l L. Comm’n 148, U.N. Doc. A/56/10 [hereinafter DAPTH]; XUE HANQIN,
TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 178 (2003).
77
Trail Smelter, supra note 75, at 1965.
78
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 14, ¶¶228, 259 (Apr. 20)
[hereinafter Pulp Mills].
79
Record, ¶25.
80
Clarifications, A38.
81
Record, ¶25.

11
 This Court has recognized the principle of clean hands on several occasions.82 The clean

hands doctrine deprives a State guilty of illegal conduct from bringing claims of

corresponding illegalities on the part of other States that have resulted as a consequence. 83

This determination can be made at the merits stage of a case and consequently precludes a

State from seeking any relief from the Court.84

Pursuant to its treaty obligations, Aves had a duty to conserve endangered species 85 and listed

wetlands.86 Aves’ failure to implement strict biosecurity measures to contain the outbreak in

its territory87 led to the cross-infection between domestic poultry in Aves and wild

waterbirds,88 contamination of the Marsh89 and spread of the virus to Renac 90 that resulted in

the alleged unlawful response. Therefore, Aves is in breach of the same international

obligations it seeks to invoke against Renac. Resultantly, Aves is foreclosed from obtaining a

declaratory judgment due to the operation of the doctrine of clean hands.

II. THE REPUBLIC OF RENAC DID NOT VIOLATE INTERNATIONAL LAW BY

DELISTING THE ADEGURI MARSH AS A RAMSAR SITE AND AS A
TRANSBOUNDARY RAMSAR SITE, AND THE PROPOSED COMPENSATION
WAS ADEQUATE.
A. RENAC DID NOT VIOLATE INTERNATIONAL LAW BY DELISTING THE ADEGURI MARSH AS A RAMSAR SITE
AND AS A TRANSBOUNDARY RAMSAR SITE.
82
Arrest Warrant of 11 April 2000 (Dem. Rep. Congo. v. Belg.), Judgment, 2002 I.C.J Rep. 137, ¶84 (Feb. 14)
(dissenting opinion by Van den Wyngaret, J.); Diversion of Water from Meuse (Neth. v. Belg.), Judgment, 1937
P.C.I.J. (ser.A/B) No.70, at 25 (June 28).

83
Gerald Fitzmaurice, The General Principles of International Law, Considered from the Standpoint of the Rule
of Law, 92 RECUEIL DES COURS 1, 119 (1957).

84
Oil Platforms (Iran v. U.S.), Judgment, 2003 I.C.J. Rep. 161, ¶29 (Nov. 6).
85
AEWA, art. III(1); CMS, art. III.
86
Ramsar Convention, art. III.
87
Clarifications, A54.
88
Record, ¶¶16, 20.
89
Record, ¶20.
90
Record, ¶23.

12
 1. Renac’s decision to delist is consistent with the Ramsar Convention.
Article 2.5 of the Ramsar Convention allows Parties to delete wetlands from the List because

of their urgent national interests. This provision must be read with Article 2.3 which

recognizes the exclusive sovereign rights of States over listed wetlands which fall within their

territory.91 Renac submits that it validly exercised its right to delist the Marsh under the

Ramsar Convention as the interests cited by it were of a national character (a), there was an

urgent need to delist the Marsh to protect these interests (b) and the importance of these

interests outweighed Aves’ and Renac’s joint interest in the conservation of the Marsh (c).

Therefore, Renac did not violate the obligation to conserve the Marsh under Article 3.1.92

a. The interests cited by Renac were of a national character.

Article 2.5 requires that the interest being cited must affect or be shared by the nation as a

whole.93 Aves and Renac have acknowledged that HPAI outbreaks may have serious negative

effects on human health and domestic poultry.94 In fact, outbreaks in the past have led to the

death of Renac’s citizens and have debilitated its poultry industry95 which is the primary

contributor to its economy.96

Since the adverse impacts of HPAI outbreaks were felt by the entire nation, Renac’s cited

interests in the protection of its population and its economy from imminent outbreaks were of

a national character.97

91
Conference of the Contracting Parties to the Convention on Wetlands [COP], General guidance for
interpreting "urgent national interests" under Article 2.5 of the Convention and considering compensation under
Article 4.2, ¶5, Resolution VIII.20 (2002).
92
Ramsar Advisory Mission [RAM], Report No. 46: Mühlenberger Loch Ramsar Site, Federal Republic of
Germany, ¶35, (Sept. 24-26, 2001) [hereinafter RAM46].
93
Id. ¶31.
94
Record, at 3.
95
Record, ¶¶19, 25.
96
Record, ¶1.
97
Record, ¶34.

13
 b. There was an urgent need to delist the Marsh to protect Renac’s national interests.
Developments may be considered as “urgent” under the Ramsar Convention when they abate

imminent threats to human life, health and the economy of the State. 98 The practice of States

also supports this interpretation.99

Given that HPAI outbreaks were endemic to areas surrounding the Marsh,100 Renac’s failure

to act immediately would have exposed it to a high risk of sporadic outbreaks. 101 In order to

prevent these, it had to take such measures to prevent cross-infection between wild waterbirds

and domestic poultry102 located near the Marsh. Since Renac lacked the financial means to

implement biosecurity measures to prevent such cross-infection,103 delisting the Marsh was

the only course of action which would give it the flexibility to achieve this end.104

c. The importance of Renac’s cited interests outweigh Aves’ and Renac’s joint interest in
the conservation of the Marsh.
The circumstances invoked by a State as constituting “urgent national interests” must be

contrasted against the interest in maintaining wetlands.105 By fully participating in the 1992

United Nations Conference on Environment and Development and the 2012 Rio+20

Conference,106 both Aves and Renac have affirmed that “human beings are at the centre of
98
RAM46, supra note 92, ¶42.

99
Standing Committee of the Convention on Wetlands [StC], Analysis and recommendations of IUCN’s
Environmental Law Centre (Decision SC24-10) on Revisions to Ramsar sites boundaries, interpretation of
Articles 2.5 and 4.2, ¶73 (Resolution VII.23, paragraphs 9, 10, 11 & 13), Ramsar Doc.SC. 25.08 (2000)
[hereinafter RamsarDoc.SC25.08].
100
Record, ¶¶15-16, 20.

101
World Health Organization, Avian influenza: assessing the pandemic threat, at 55, WHO/CDS/2005.29 (Jan,
2005).

102
Scientific Task Force on Avian Influenza, Avian Influenza and Wild Birds, UNITED NATIONS
ENVIRONMENTAL PROGRAMME, http://www.unep-
aewa.org/sites/default/files/publication/ai_brochure_english.pdf (last visited Nov. 15, 2017).
103
Record, ¶26; See supra Part I.A.1.a.ii.
104
Record, ¶23.
105
RamsarDoc.SC25.08, supra note 99, at 71.
106
Record, ¶8.

14
concerns for sustainable development”.107 Nevertheless, since Renac is a developing country,

it is allowed to subject its environmental policy decisions to its development potential and the

attainment of better living conditions of its citizens.108

Therefore, Renac’s decision to prioritize its interests in the safety and health of its population

and its economy over the conservation of the Marsh is justified and consistent with

environmental principles.

2. Renac did not violate its obligations under customary international law.
a. Renac discharged its due diligence obligations.
The duty not to cause transboundary harm requires States to observe due diligence, 109 which

is an obligation of conduct and not of result.110 It requires the State concerned to take the best

possible efforts to minimize the risk of transboundary harm. 111 Therefore, Renac was required

to notify112 and cooperate with Aves113 and conduct an Environmental Impact Assessment114

(‘EIA’). Accordingly, prior to delisting its portion of the Marsh, Renac notified Aves115 and
107
Rio+20 Conference on Sustainable Development, ¶6, U.N. Doc. A/CONF.216/L.1 (June 19, 2012)
[hereinafter Rio+20]; Rio Declaration, supra note 71, Principle 1.
108
Stockholm Declaration, Principle 11, U.N Doc.A/CONF.48/14/Rev.1 (June 16, 1972).
109
Pulp Mills, supra note 78, at 55-56.
110
Report of the International Law Commission, UN GAOR, 49th Sess., Supp. No. 10, at 195, 237, UN Doc.
A/49/10 (1994).
111
DAPTH, supra note 76, at 155.
112
Pulp Mills, supra note 78, ¶110.
113
MOX Plant (Ir. v. U.K.), Case No. 10, Order of Dec 3. 2001, 42 ILM 1187, ¶82 (ITLOS, 2001).
114
Pulp Mills, supra note 78, ¶205; Rio Declaration, supra note 71, Principle 17; DAPTH, supra note 76, art. 7.
115
Record, ¶¶27, 29.

15
in order to satisfy Aves’ concerns also conducted an EIA involving Aves.116 By taking such

preventive measures,117 Renac fully discharged its due diligence obligations.

b. Renac did not cause transboundary harm to Aves.

Renac recognizes its duty under customary international law to not cause significant harm to

any other State.118 The burden of proving a breach of this obligation lies on the Claimant

State.119 However, Aves must establish that the Renac’s acts caused significant harm to it, 120

in order to prove such breach. The standard of proof in cases involving transboundary harm is

that the harm should be established through “clear and convincing evidence”.121

Aves has claimed that delisting “could” jeopardize the future of the Marsh and the species

dependent on it.122 However, with respect to the potential impacts of delisting on the blue-

crowned crane, a direct and certain causal link123 is absent due to multiple intervening

causes.124 A population decline in the blue-crowned crane may be a consequence of various

threats ranging from HPAI to climate change.125 At the same time, while delisting gives

116
Record, ¶28.
117
Alabama claims of the United States of America against Great Britain (U.K. v. U.S.), 29 R.I.A.A. 125, 130
(Arb. Trib. 1872).
118
Trail Smelter, supra note 75, at 1965.
119
Pulp Mills, supra note 78, ¶¶162-163.
120
DAPTH, supra note 76, art. 1.
121
Pulp Mills, supra note 78, ¶¶220, 265; Trail Smelter, supra note 75, at 1965.
122
Record, ¶30.
123
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. v. Ser.),
Judgment, 2007 I.C.J. Rep. 43, ¶462 (Feb. 26).
124
Administrative Decision No. II (U.S. v. Ger.), 7 R.I.A.A. 23, 30 (U.S.-Ger Mixed Cl. Comm’n 1923); Dix
case, 9 R.I.A.A. 119, 121 (American-Venez. Comm’n 1902); JULIO BARBOZA, THE ENVIRONMENT, RISK AND
LIABILITY IN INTERNATIONAL LAW, 11 (2011).
125
Christiaan Both et. al., Climate change and population declines in a long-distance migratory bird, 441
NATURE 81, 82 (2006).

16
Renac the flexibility to make certain modifications to the Marsh to prevent HPAI

outbreaks,126 it cannot be established that this will significantly affect the birds.127

3. In any case, the wrongfulness of Renac’s acts is precluded by necessity.

Even if Renac has violated its international obligations by delisting its portion of the Marsh,

the wrongfulness of its act is precluded by necessity. 128 This is because Renac’s essential

interests were threatened by a grave and imminent peril (1), and undertaking the wrongful act

was the only means available to it (2).129 Further, such an act would not seriously impair

Aves’ essential interests (3).130

a. Renac’s essential interests were threatened by a grave and imminent peril.

HPAI outbreaks have had grave consequences on Renac’s economy and its citizens, 131 the
132
protection of which constitute Renac’s essential interests. Since a future outbreak was

imminent133 and the risk that it posed to its interests was outside Renac’s control, 134 the

threshold of grave and imminent peril was met.

b. Delisting the Marsh was the only means of safeguarding such interests.

126
Record, ¶¶16, 20.
127
Smith v. Philadelphia Transp. Co., 173 F.2d 721, ¶281 (3rd Cir. 1949); Richard Wright, Causation in Tort
Law, 73 CAL. L. REV. 1735, 1791-1803 (1985).

128
Gabčíkovo–Nagymaros Project (Hung v. Slovk.), Judgment, 1997 I.C.J. Rep. 7, ¶¶51, 52 (Sept 25)
[hereinafter Gabčíkovo–Nagymaros]; G.A. Res.56/83, Responsibility of States for internationally wrongful acts
art. 25 (Jan. 28, 2002) [hereinafter ARSIWA].

129
Id. art. 25(1)(a).
130
Id. art. 25(1)(b).
131
Record, ¶¶19, 24.
132
Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, ¶15, [2001] 2
Y.B. Int’l L. Comm’n 31, U.N. Doc. A/56/10.
133
See supra Part II.A.1.b.
134
Roberto Ago, Addendum - Eighth report on State responsibility at 20, [1980] 2 Y.B. Int'l L. Comm'n 14, U.N.
Doc A/CN.4/318/Add.5–7.

17
The impacts of HPAI on its people and economy compelled Renac to prevent future

outbreaks by exercising its sovereign right to delist its portion of the Marsh. This was the

only means of safeguarding its interests because its lack of resources made it incapable of

implementing biosecurity measures135 without posing a threat in itself to its own essential

interests.136

c. The essential interests of Aves would not be seriously impaired.

Whether or not Aves’ interests in the conservation of its environment were seriously impaired

depends on a reasonable assessment of the competing interests. 137 Unlike an HPAI outbreak,

Renac’s act of delisting the Marsh would not directly affect Aves’ citizens or its economy to

the point that its internal or external situation would be endangered. 138 Even if such delisting

were to affect Aves’ interest in its environment, Renac’s interest in protecting human health

and safety must be given precedence.139

B. RENAC’S PROPOSED COMPENSATION WAS ADEQUATE.

Under Article 4.2 of the Ramsar Convention, Renac was required to compensate as far as

possible for the loss of wetland resources due to the delisting of the Marsh. While the habitat-

type of the coastal salt marsh proposed as compensation is different from the Marsh, which is

a freshwater marsh,140 its designation does not amount to a violation of Renac’s obligation to

135
Record, ¶23.
136
Roman Boed, State of Necessity as Justification for Internationally Wrongful Conduct, 3 YALE HUM. RTS &
DEV. L. J. 1, 18 (2000).
137
Gabčíkovo–Nagymaros, supra note 128, ¶58.
138
Russian Indemnity Case (Russ. v. Turk.), 9 R.I.A.A. 421, 443 (Perm. Ct. Arb. 1912).
139
Rio Declaration, supra note 71, Principle 1; Rio+20, supra note 107, ¶6.
140
Record, ¶9.

18
compensate as it has complied with the precautionary principle (1) and taken all practicable

steps to adequately replace the lost habitat (2).

1. Renac fully complied with the precautionary principle.

Owing to the uncertainty in the re-occurrence of lost species and habitats through

compensatory measures, Parties are expected to include a substantial “margin of error” as

part of their compensation scheme in accordance with the precautionary principle. 141 This

uncertainty exists because of the operation of numerous ecological variables including

seasonal bird usage and hydrological viability of the compensation site. 142 Therefore, the

surface area designated as compensation must cover a larger surface area than that which is

lost.143

Renac’s proposed compensation site supports endangered species and provides refuge to

plants and animals during adverse conditions.144 These functions are also performed by the

Marsh.145 Considering the difference in habitat types and the uncertainty in full replacement

of such wetland functions, Renac designated an area larger than its portion of the Marsh as

compensation.146 Therefore, it fully complied with the precautionary principle.

2. Renac has taken all practicable steps to replace the lost habitat.

141
Ramsar Advisory Mission [RAM], Report No. 64: Åkersvika, Norway, ¶¶10.7, 10.14 (Apr. 8-9, 2010)
[hereinafter RAM64].
142
Id. ¶10.7.
143
Id. ¶10.8; Ramsar Advisory Mission [RAM], Report No. 54: Wetlands of Central Kolkheti, Georgia, ¶32
(Aug. 14-19, 2005).
144
Clarifications, A32.
145
Record, ¶12.
146
Record, ¶¶29, 31.

19
To the extent that the coastal salt marsh cannot perform the functions that were performed by

the Marsh, such as housing the blue-crowned crane,147 Renac submits that it does not amount

to a violation of Article 4.2 of the Ramsar Convention.

This obligation is not absolute and is conditioned by the phrase “as far as possible”,

recognizing that it may be impossible for the lost wetland functions to be fully replaced by

the compensation site.148 Such a qualifier makes its implementation conditional on the

capabilities of the State.149 Therefore, Parties are required to conduct an EIA150 to identify

wetlands which may be best suited as compensation.151

In this case, Renac’s proposal that the coastal salt marsh would be designated as

compensation was based on an EIA.152 While there were five small shallow freshwater

wetlands in Renac, the total area covered by these wetlands was approximately 9,500

hectares less than the area covered by Renac’s portion of the Marsh.153 These wetlands did

not provide significant habitat to migratory birds,154 unlike the Marsh.155 Additonally, since

Renac’s economy had been crippled by HPAI outbreaks it could not bear the additional cost

of enhancing these wetlands to replicate the functions of the Marsh. Therefore, designating

147
Record, ¶29.
148
Conference of the Contracting Parties to the Convention on Wetlands [COP], Overview paper for workshop
B: International Law Requirements, at 218, Doc.C.4.7 (1990) [hereinafter RamsarDoc.C.4.7].
149
INGVILD JAKOBSEN, MARINE PROTECTED AREAS IN INTERNATIONAL LAW: AN ARCTIC PERSPECTIVE 150
(2016); Guilmin, supra note 65, at 51.
150
Conference of the Contracting Parties to the Convention on Wetlands [COP], Issues concerning the boundary
definitions of Ramsar sites and compensation of wetland habitats at ¶12, Resolution VII.23 (1999).
151
RAM64, supra note 141, ¶14.11.
152
Clarifications, A40.
153
Clarifications, A27.
154
Clarifications, A27.
155
Record, ¶11.

20
and enhancing the coastal salt marsh was necessary and adequate for Renac to discharge its

obligations under Article 4.2.

C. RENAC HAS FULLY DISCHARGED ITS OBLIGATION UNDER ARTICLE 5 OF THE RAMSAR CONVENTION.
Article 5 of the Ramsar Convention requires Parties to consult other Parties, particularly

those with which they share wetlands, in the implementation of the Convention obligations.

The minimum requirement under this provision is to exchange information 156 with and

provide a copy of the EIA to the concerned Parties to seek their inputs before finalizing plans

concerning such wetlands.157 Renac conducted an EIA before delisting the Marsh and

determining the proposed compensation.158 In doing so, it involved Aves, its citizens and all

relevant stakeholders.159

Since Renac had fully discharged its obligation to consult, the second limb of Article 5,

namely, the obligation to endeavor to coordinate is not attracted. 160 This is because the

obligation is not absolute161 and is contingent on the outcome of the consultations. 162

Considering that Aves and Renac had contrary stances on Renac’s plans of delisting the

Marsh and its proposed compensation, a coordination of policies between them was

inconceivable and therefore Renac did not breach its obligation under Article 5.

156
Ramsar Advisory Mission [RAM], Report No. 59: Tanzania, at 5 (Feb. 17-29, 2008).
157
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. Rep. 665, ¶44 (Dec. 16)
(separate opinion by Dugard, J.).
158
Record, ¶27; Clarifications, A40.
159
Record, ¶¶27.
160
Ramsar Convention, Art. 5.
161
RamsarDoc.C.4.7, supra note 148, at 221.
162
Id. at 220.

21
 CONCLUSION

Renac respectfully requests the Court to adjudge and declare that Renac did not violate

international law:

1. With respect to its responses to the 2014 and 2015 outbreaks of HPAI.

2. By delisting the Adeguri Marsh as a Ramsar Site and as a Transboundary Ramsar

Site, and the proposed compensation was adequate.

Respectfully Submitted,

Agents for the Respondent.

XII