Team Code: R014

THE 2019 STETSON

INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

2018 General List No. 237

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO USE OF THE SARGASSO SEA

AND THE PROTECTION OF EELS

FEDERAL STATES OF ALLIGUNA

(APPLICANT)

v.

REPUBLIC OF REVELS

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

REPUBLIC OF REVELS
 TABLE OF CONTENTS

INDEX OF AUTHORITIES....................................................................................................I

STATEMENT OF JURISDICTION.....................................................................................II

QUESTIONS PRESENTED.................................................................................................III

STATEMENT OF FACTS....................................................................................................IV

SUMMARY OF ARGUMENTS............................................................................................V

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

I. THE ICJ DOES NOT HAVE JURISDICTION TO DETERMINE THE

MATTER AND THE CONDUCT AT ISSUE IS NOT ATTRIBUTABLE TO THE
REPUBLIC OF REVELS........................................................................................................1
A. THE ICJ DOES NOT HAVE JURISDICTION TO DETERMINE THE MATTER...................1
1. The ICJ does not have jurisdiction pursuant to the CBD..............................................1
2. The ICJ does not have jurisdiction pursuant to UNFCCC and PA.................................4
3. UNCLOS bars the jurisdiction of the ICJ to adjudicate upon the dispute concerning
the freedom at high seas...........................................................................................................5
B. THE CONDUCT OF SEA CORPORATION IS NOT ATTRIBUTABLE TO REVELS.............7
1. The conduct of SEA Corporation is not attributable to Revels pursuant to Article 5
of the ARSIWA...........................................................................................................................7
2. The conduct of the SEA Corporation is not attributable to Revels pursuant to
article 8 of the ARSIWA.............................................................................................................8
3. Conduct of SEA Corporation is not attributable to Revels pursuant to Article 11 of
ARSIWA. 9
II. EVEN IF THE ICJ HAS JURISDICTION, THE REPUBLIC OF REVELS
HAS NOT VIOLATED INTERNATIONA LAW WITH RESPECT TO THE
HARVESTING OF SARGASSUM IN THE SARGASSO SEA........................................10
A. THE PROJECT IS IN FURTHERANCE OF REVELS OBLIGATION TO MITIGATE CLIMATE
CHANGE AND CONSERVE THE EELS...................................................................................10
1. The Project is in furtherance of Revels’ obligation to mitigate climate change under
the UNFCCC and the PA...........................................................................................................10
2. The Project is in furtherance of Revels' obligation to conserve the Eels and its
habitat under the UNCLOS and the CBD..................................................................................10
B. REVELS DID NOT VIOLATE ITS TREATY OBLIGATIONS..........................................12
1. Revels did not breach its obligations under the UNCLOS..........................................12
2. Revels did not breach its obligations under the CBD................................................13
3. Revels has not violated its obligations under the CMS.............................................14
C. REVELS HAS NOT VIOLATED THE PRECAUTIONARY PRINCIPLE (‘PP’) AND IN FACT
ACTED IN FURTHERANCE OF IT.........................................................................................15
1. Revels has not violated the PP in respect of the Eels................................................15
2. The PP favours the continuation of the Project........................................................16
D. REVELS HAS NOT VIOLATED ITS DUTY TO PREVENT TRANSBOUNDARY HARM....16
1. Revels did not cause transboundary harm to Alliguna or any other State...............16
2. Revels discharged its due diligence obligations........................................................17
E. REVELS DID NOT BREACH ITS DUTY TO COOPERATE............................................19
1. Revels complied with its duty to cooperate in respect of biodiversity in ABNJ.........19
2. Revels fulfilled its duty to cooperate with Alliguna...................................................20

CONCLUSION...................................................................................................................XXI
 INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79................1, 3, 13, 16, 19

Convention on the Conservation of Antarctic Marine Living Resources, Aug. 11, 1983, 1329

U.N.T.S. 47............................................................................................................................3

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

U.N.T.S. 333..........................................................................................................2, 3. 14, 15

Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12,

2015, U.N. Doc. FCCC/CP/2015/L.9/REV.1..................................................................4, 10

The Antarctic Treaty, June 23, 1961, 402 U.N.T.S. 71.............................................................3

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 17 U.S.T. 138, 1833

U.N.T.S. 3..................................................................................................................6, 12, 19

United Nations Framework Convention on Climate Change, May 9, 1992, 1771 U.N.T.S. 10

....................................................................................................................................4, 10, 16

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331.....................12

JUDICIAL AND ARBITRAL DECISIONS

THE INTERNATIONAL COURT OF JUSTICE (ICJ)

Ambatielos Case (Greece v. U.K.), Jurisdiction, Judgment, 1952 I.C.J. Rep. 28 (July 1)........2

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

(Bosn. & Herz. v. Serb. & Montenegro), Preliminary Objections, Judgment, 1996 I.C.J.

Rep. 595 (July 11)..................................................................................................................4

I
Application of the International Convention on the Elimination of All Forms of Racial

Discrimination (Geor. v. Russ.), Preliminary Objections, Judgment, 2011 I.C.J. Rep. 85

(Apr. 1)...................................................................................................................................5

Barcelona Traction Light & Power Company Ltd. (Belg. v. Spain), Preliminary Objection

Judgment, 1964 I.C.J. Rep. 6 (July 24) (dissenting opinion of Armand-Ugon, J.)................1

Border and Transborder Armed Actions (Nicar. v. Hond.), Jurisdiction and Admissibility,

Judgment, 1988 I.C.J. Rep. 69 (Dec. 20)...............................................................................4

Case concerning the Northern Cameroons (Cameroon v. U.K.), Preliminary Objections,

Judgment, 1963 I.C.J. Rep. 15 (Dec. 2).................................................................................4

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).......................................................................................17, 18

Fisheries Jurisdiction Case (Spain v. Can.), Jurisdiction of the Court, Judgment, 1998 I.C.J.

Rep. 432 (Dec. 4)...................................................................................................................4

Interpretation of Peace Treaties, Advisory Opinion, 1950 I.C.J. Rep. 65 (Mar. 30).................1

Judgments of the Administrative Tribunal of the I.L.O. Upon Complaints Made Against the

U.N.E.S.C.O., Advisory Opinion, 1956 I.C.J. Rep. 77 (Oct. 23)..........................................1

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226

(July 8).................................................................................................................................11

Military and Paramilitary Activities in and against Nicaragua (Nicar. v U.S.), Jurisdiction and

Admissibility, Judgment, 1984 I.C.J. Rep. 431 (Nov. 26).....................................................2

Military and Paramilitary Activities in and against Nicaragua (Nicar. v U.S.), Merits,

Judgment, 1986 I.C.J. Rep. 14 (June 27)...........................................................................8, 9

North Sea Continental Shelf (Ger. v. Den. & Neth.), Judgment, 1969 I.C.J. Rep. 3 (Feb. 20)

..............................................................................................................................................20

II
Nuclear Tests (N.Z. v. Fr.), Judgment, 1974 I.C.J. Rep. 4 (Dec. 20)......................................19

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to

Nuclear Disarmament (Marsh. Is. v. U.K.), Preliminary Objections, Judgment, 2016 I.C.J.

Rep. 833 (Oct. 5)....................................................................................................................5

Oil Platforms (Iran v. U.S.), Merits, Judgment, 2003 I.CJ. Rep. 161 (Nov. 6).........................5

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

17

South West Africa (Eth. v. S. Afr. & Liber. v. S. Afr.), Preliminary Objections, Judgment,

1962 I.C.J. Rep. 319 (Dec. 21)...............................................................................................4

THE PERMANENT COURT OF INTERNATIONAL JUSTICE (PCIJ)

Free Zones of the Upper Savoy and the District of Gex (Fr. v. Switz.), 1932 P.C.I. J. (ser.

A /B) No. 46 (June 7).............................................................................................................1

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

..........................................................................................................................................2, 12

INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEAS (ITLOS)

MOX Plant Case (Ir. v. U.K.), Case No. 10, Order of Dec. 3, 2001, [2001] ITLOS Rep. 89. 15

Request for Advisory Opinion submitted by the Sub-Regional Fisheries Commission (No.

21), Case No. 21, Advisory Opinion of April 2, 2015, ITLOS Rep. 4................................12

INTERNATIONAL ARBITRAL AWARDS

Alfred W. Short v. Islamic Republic of Iran, 16 Iran-U.S. Cl. Trib. Rep. 76 (1987)................9

Lac Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281 (Perm. Ct. Arb. 1957)......................20

South China Sea Arbitration (Phil. v. China), 2015 P.C.A. Case No. 2013-19 (Oct. 29, 2015)6

South China Sea, (Phil. v. China), PCA Case No 2013-19, Award (July 12, 2016)..............12

Southern Bluefin Tuna, (Austl. v. Japan; N.Z. v. Japan), 23 R.I.A.A. 1 (Arbitral Tribunal

constituted under Annex VII of the U.N.C.L.O.S. 2000)..................................................3, 6

III
The Indo-Pakistan Western Boundary (Rann of Kutch) (India v. Pak.), Award, 17 R.I.A.A.

553 (Perm. Ct. Arb.1965).....................................................................................................19

INTERNATIONAL CONVENTION FOR SETTLEMENT OF INVESTEMENT DISPUTES (ICSID)

TRIBUNAL

Ampal-American Israel Corp. and Others v. Arab Republic of Egypt, ICSID Case No.

ARB/12/11, Award on Liability and Loss (Feb. 21, 2017)....................................................9

Ceskoslovenska Obchodni Banka, A. S. v. The Slovak Republic, ICSID Case No. ARB/97/4,

Award (Dec. 29, 2004)...........................................................................................................8

Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No.

ARB/04/13, Decision on Jurisdiction (Nov. 6, 2008).......................................................7, 8

DOMESTIC AND REGIONAL COURT CASES

Commonwealth of Australia v State of Tasmania, [1983] HCA 21 (Aus. High Ct. 1983).....14

UN DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

Conference of Contracting Parties of the CBD, Marine and Coastal Biodiversity,

UNEP/COP/CBD/DEC/X/29 (2010).............................................................................12, 14

Conference of Contracting Parties of the CBD, Marine and Coastal Biodiversity,

UNEP/COP/DEC/IX/20 (2008)...........................................................................................14

Conference of Contracting Parties of the CBD, Marine and Coastal Biodiversity: Ecologically

or Biologically Significant Areas, UNEP/COP/CBD/DEC/XIII/12 (2016).......................14

Conference of Contracting Parties of the UNFCCC Five-year programme of work of the

Subsidiary Body for Scientific and Technological Advice on adaptation to climate change,

FCCC/CP/2005/5/Add.1, 2/CP.11 (Mar. 30, 2006)...............................................................7

Conference of Contracting parties of the UNFCCC, Dialogue on long-term cooperative action

to address climate, ¶10, FCCC/CP/2005/Add., 1/CP.11 (Mar. 30, 2005).............................7

IV
Conference of the Contracting Parties of the CMS, Establishment of a Review Mechanism

and a National Legislation Programme, UNEP/CMS/ UNEP/CMS/Resolution 12.9 (Oct.

2017)......................................................................................................................................3

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.................17, 18, 19

G.A. Res. 56/83, 2002 Articles on Responsibility of States for Internationally Wrongful Acts

(Jan. 28, 2002)................................................................................................................7, 8, 9

G.A. Res. 69/292 (July 6, 2015)...............................................................................................20

Int’l L. Comm'n Report on the Fragmentation of International Law: Difficulties Arising from

the Diversification and Expansion of International Law, U.N. Doc. A/CN.4/L.682 (April

13, 2006)................................................................................................................................2

Intn’l Law Comm. Report on the Work of its Eighth Session, U.N. Doc. A/CN.4/96 (Jan. 20,

1956)......................................................................................................................................7

Panel Report, Turkey - Restrictions on Imports of Textile and Clothing Products, WTO Doc.

WT/DS34/R (adopted May 31, 2009)....................................................................................2

Rio Declaration on Environment and Development, U.N.Doc.A/CONF.151/5/Rev.1 (Aug.

12, 1992)........................................................................................................................15, 16

Subsidiary Body on Scientific, Technical and Technological Advice of the CBD, Marine and

Coastal Biodiversity: Review, Further Elaboration and Refinement of the Programme of

Work UNEP/CBD/SBSTTA/8/INF/3/Rev.1 (Mar. 7, 2003).................................................3

BOOKS AND TREATISES

4 UNIVERSITY OF VIRGINIA SCHOOL OF LAW, UNITED NATIONS CONVENTION ON THE LAW

OF THE SEA 1982: A COMMENTARY (M. Nordquist, et. al. ed, 1993)..................................11

A. TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN

INTERNATIONAL LAW (2002)...............................................................................................15

V
A. EPINEY AND M. SCHEYLI, UMWELTVOKERRECHT. VOLKERRECHTLICHE BEZUGSPUNKTE

DES SCHWEIZERISCHEN UMWELTRECHTS 234 (2000)............................................................2

B. CHENG, GENERAL PRINCIPLES OF INTERNATIONAL LAW 25 (1987)....................................2

J. CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART (2013)...................................8, 9

J. SATHAYE & S. MEYERS, GREENHOUSE GAS MITIGATION ASSESSMENT GUIDEBOOK (1995)

..............................................................................................................................................10

J. BARBOZA, THE ENVIRONMENT, RISK AND LIABILITY IN INTERNATIONAL LAW (2011)......17

P. BIRNIE, A. BOYLE & C. REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT (3rd

ed, 2009).........................................................................................................................11, 19

P. SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2003)............................15

U. BEYERLIN, P.T. STOLL AND R. WOLFRUM, ENSURING COMPLIANCE WITH MULTILATERAL

ENVIRONMENTAL AGREEMENTS. A DIALOGUE BETWEEN PRACTITIONERS AND ACADEMIA

(2006).....................................................................................................................................3

ESSAY, ARTICLES AND JOURNALS

K.D. Friedland et. al., Oceanic changes in the Sargasso Sea and declines in recruitment of

the European Eel, 64 ICES J. MAR. SCI. 519 (2007)..........................................................11

L.M. Díaz Vazquez et. al., Demineralization of Sargassum Spp. Macroalgae Biomass:

Selective Hydrothermal Liquefaction Process for Bio-oil Production, FRONT. ENERGY

RES., Feb. 2015....................................................................................................................16

Lavanya Rajamani, The Durban Platform for Enhanced Action and the Future of the Climate

Regime, 61 ICLQ 501 (2015).................................................................................................5

M.J. Miller, Ecology of Anguilliform Leptocephali: Remarkable Transparent Fish Larvae of

the Ocean Surface Layer, ABSM, Oct. 2009.......................................................................13

Ove Hoegh-Guldberg & John F. Bruno, The Impact of Climate Change on the World’s

Marine Ecosystems, 328 SCIENCE 1523 (2010)...................................................................12

VI
R.C. Kleckner et.al., The northern limit of spawning by Atlantic eels (Anguilla spp.) in the

Sargasso Sea in relation to thermal fronts and surface water masses, 46 J. MAR. RES. 647

(1988)...................................................................................................................................11

S. Bonhommeau et. al., Impact of Climate on Eel Populations of the Northern

Hemisphere, 373 MAR. ECO. PROG. SER. 71 (2008)......................................................11, 13

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

(The Bonn Convention), 29 NAT. RESOURCES J. 979 (1989)...............................................14

Volker Röben, Institutional Developments Under Modern International Environmental

Agreements, 4 MAX PLANCK UNYB 364 (2000)................................................................15

W.K.W. Li, Macroecological patterns of phytoplankton in the northwestern North Atlantic

Ocean, 419 NATURE 154, 155 (2002)..................................................................................13

W.W. Gregg et. al., Ocean Primary Production and Climate: Global Decadal Changes, 30

GEOPHYS. RES. LETT. 1809 (2003)......................................................................................11

MISCELLANEOUS

Adaptation Action Plan of the German Strategy for Adaptation to Climate Change, 2011;

Commission White Paper on Adapting to Climate Change: Towards a European

Framework for Action, COM (2009) 147 Final, (April 1, 2009)...........................................7

Guidelines for Ecological Impact Assessment in the UK and Ireland Terrestrial, Freshwater,

Coastal and Marine (2018)...................................................................................................18

M. Gollock, et. al., Anguilla Anguilla. IUCN Red Book of Threatened Species (2014).........17

Netherland Commission for environmental assessment, Key Sheet: Dealing with uncertainties

in EA (Sept. 2011)................................................................................................................18

VII
 STATEMENT OF JURISDICTION

Pursuant to Article 79, paragraph 1, of the International Court of Justice Rules of Court

(1978), the Republic of Revels (‘Revels’ or ‘Respondent’) has filed a timely preliminary

objection as to this Honorable Court’s jurisdiction over the subject matter of the dispute

between Respondent and the Federal States of Alliguna (‘Alliguna’ or ‘Applicant’). See

Preliminary Objection of the Republic of Revels, Dated 5 May 2018. In accordance with

Statute of the International Court of Justice, art. 36(6), this Court has jurisdiction to settle the

matter of jurisdiction.

If this Court determines that it does have jurisdiction to decide the subject matter of the

dispute, this Court would have jurisdiction over this matter pursuant to Statute of the

International Court of Justice, art. 40(1), since Applicant submitted an application instituting

proceedings. See Application Instituting Proceedings, Dated 28 April 2018.

VIII
 QUESTIONS PRESENTED

I. WHETHER THE ICJ HAS JURISDICTION TO DETERMINE THE MATTER AND

WHETHER REVLS IS RESPONSIBLE FOR THE CONDUCT AT ISSUE.

II. WHETHER REVELS HAS VIOLATED INTERNATIONAL LAW BY

NEGATIVELY IMPACTING THE EUROPEAN EELS THROUGH THE

SARGASSUM HARVESTING PROJECT IN THE SARGASSO SEA.

IX
 STATEMENT OF FACTS

Alliguna and Revels are neighboring coastal states in the North Atlantic Ocean. They are

both at a distance of approximately 250 nautical miles from the Sargasso Sea (‘Sea’). While

Alliguna is a developed country, with an economy based on energy and manufacturing,

Revels is a developing country whose economy relies primarily on fishing and agriculture.

The European Eel (‘Eel’) is a migratory species that is critically endangered. The Eel spends

a major part of its life in the internal waters of various countries, including Alliguna and

migrates to the Sea for spawning purposes. On 22 April, 2016, both Alliguna and Revels

submitted their Nationally Determined Contribution (‘NDC’) under the Paris Agreement.

In July 2016, Sea Energy Alternatives, Inc. (‘SEA Corporation’), a private company based in

Revels, began harvesting of Sargassum (‘Project’) from the Sea for production of biofuels.

The Project was being subsidized by Revels and was carried out by a vessel flying the flag of

Revels.

In the end of 2016, Revels issued a press release where it highlighted the success of the

Project. On 13 January, 2017, Alliguna sent a diplomatic note to Revels, expressing its

concerns over the continuation of the Project. Revels responded to these concerns on 11

March, 2017. The negotiations between the countries continued till Alliguna unilaterally

submitted the dispute before the ICJ on 21 April, 2018.

X
 SUMMARY OF ARGUMENTS

I.

The ICJ does not have jurisdiction over this dispute because Revels has not agreed to submit

this dispute to the ICJ, under the Convention on Biodiversity (‘CBD’), the United Nations

Framework on Climate Change (‘UNFCCC’) and the Paris Agreement (‘PA’). The ICJ

should acknowledge the existence of specific agreements which provide specialized

mechanisms to resolve the present dispute and hold that it does not have jurisdiction to

adjudicate this dispute. Furthermore, the conduct of SEA Corporation is not attributable to

Revels under the Articles on Responsibility of states for internationally wrongful acts

(‘ARSIWA’).

II.

Even if the ICJ has jurisdiction over this dispute, Revels did not violate international law by

implementing the Project. Rather, by acting responsibly to combat climate change; acting in

accordance with the United Nations Convention on The Law of the Sea (‘UNCLOS’), the

CBD and Convention on the Conservation of Migratory Species of Wild Animals (‘CMS’)

and; fulfilling its duty under the precautionary principle, Revels complied with its

international law obligations.

XI
 ARGUMENTS

I. THE ICJ DOES NOT HAVE JURISDICTION TO DETERMINE THE MATTER

AND THAT THE CONDUCT AT ISSUE IS NOT ATTRIBUTABLE TO THE
REPUBLIC OF REVELS
A. THE ICJ DOES NOT HAVE JURISDICTION TO DETERMINE THE MATTER.
Revels has not recognized the ICJ’s jurisdiction as compulsory ipso facto. 1 Applicant has

invoked the CBD, the UNFCCC and the PA as the basis of jurisdiction. However, these are

not relevant instruments and do not confer jurisdiction upon the ICJ.

1. The ICJ does not have jurisdiction pursuant to the CBD.

a. The dispute concerning protection of migratory species emanates solely from the CMS
and not the CBD.
Article 27 of the CBD confers compulsory jurisdiction upon the ICJ only when there exists a

dispute regarding the interpretation and application of the CBD.2 Such a jurisdictional clause

must be strictly construed3 and should be applied only when there exists an express

manifestation of the intention to confer jurisdiction over a specific subject matter.4

Alliguna consistently and from the outset has treated the dispute as one concerning the impact

of the Project on the Eel habitat.5 The CBD provides no obligations specifically pertaining to

Eels or any migratory species. The remarkably general nature of obligations contained within

1
Record, ¶5.
2
Convention on Biological Diversity art. 27(3), June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD].
3
Free Zones of the Upper Savoy and the District of Gex (Fr. v. Switz.), 1932 P.C.I. J. (ser. A /B) No. 46, at 138
(June 7); Interpretation of Peace Treaties, Advisory Opinion, 1950 I.C.J. Rep. 65, ¶227 (Mar. 30).
4
Barcelona Traction Light & Power Company Ltd. (Belg. v. Spain), Preliminary Objection, Judgment, 1964
I.C.J. Rep. 6, ¶147,148 (July 24) (dissenting opinion of Armand-Ugon, J.); Judgments of the Administrative
Tribunal of the I.L.O. Upon Complaints Made Against the U.N.E.S.C.O., Advisory Opinion, 1956 I.C.J. Rep.
77, ¶89 (Oct. 23).
5
Record, ¶24.

1
the CBD6 vitiates its reasonable connection with the present factual causality.7 Hence, there

exists no dispute concerning interpretation and application of the CBD.

The Eels are listed in Appendix II of the CMS and Article IV stipulates States’ obligation to

negotiate in good faith for concluding agreements aimed at enhancing the conservation status

of Appendix II species.8 Accordingly, the CMS has a substantive connection9 with the factual

causality and there exists a dispute regarding interpretation and application of the CMS only

and not the CBD. Since the CMS does not contemplate compulsory jurisdiction of the ICJ,10

the ICJ resultantly does not have jurisdiction over the present dispute.

b. Even if the matter arises within the CBD, the CMS excludes the jurisdiction of the ICJ by
the virtue of being lex specialis.
Doctrine of lex specialis provides that when a dispute is regulated by a general and a specific

instrument,11 in case of inconsistency 12 between such instruments, the latter takes precedence

over the former in both substantive and procedural matters. 13 The threshold of inconsistency

is that of an impossibility of harmonization.14

In the instant case, the CMS is the lex specialis dealing categorically with rights and

obligations pertaining to migratory species whereas the CBD is the lex generali with its

6
A. EPINEY AND M. SCHEYLI, UMWELTVOKERRECHT. VOLKERRECHTLICHE BEZUGSPUNKTE DES
SCHWEIZERISCHEN UMWELTRECHTS 234 (2000).
7
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Jurisdiction and Admissibility,
Judgment, 1984 I.C.J. Rep. 431, ¶81 (Nov. 26).
8
Convention on the Conservation of Migratory Species of Wild Animals art. IV, June 23, 1979, 1651 U.N.T.S.
333 [hereinafter CMS].
9
Ambatielos Case (Greece v. U.K.), Jurisdiction, Judgment, 1952 I.C.J. Rep. 28, at 12 (July 1).
10
CMS art. XVII.
11
Int’l L. Comm’n. Report on the Fragmentation of International Law: Difficulties Arising from the
Diversification and Expansion of International Law, ¶188, U.N. Doc. A/CN.4/L.682 (April 13, 2006).
12
Mavrommatis Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3, at 31 (Aug. 30)
[hereinafter Mavrommatis].
13
B. CHENG, GENERAL PRINCIPLES OF INTERNATIONAL LAW 25 (1987).
14
Panel Report, Turkey - Restrictions on Imports of Textile and Clothing Products, WTO Doc. WT/DS34/R,
¶9.92-9.96 (adopted May 31, 2009).

2
general obligations of sustainable development and conservation.15 There exists an

irreconcilable procedural inconsistency between the CMS and the CBD. While the CBD

provides for compulsory jurisdiction of ICJ over the dispute,16 the CMS stipulates mutuality

as a condition precedent for submission of dispute to arbitration. 17 In this respect, the latter

treaty mirrors several other multilateral environmental agreements in which States have

deliberately not conferred compulsory jurisdiction upon any international tribunal.18

Accordingly, the obligation to submit to the compulsory jurisdiction of any tribunal is

antithetical to the mutuality contemplated by Parties to the CMS.19 Therefore, in light of this

irreconcilable inconsistency, the dispute resolution mechanism of the CMS overrides the

CBD and the ICJ cannot exercise jurisdiction.

c. In any case, the essentially scientific nature of the dispute bars the admissibility of the
present matter.
The CMS compliance review mechanism is based on a non-adversarial and facilitative

approach towards dispute resolution.20 In particular, the scientific council of the CMS

examines the conduct complained of and provides technical advice and capacity-building

support to Parties concerned.21

The present dispute fundamentally emanates from the scientific uncertainty regarding the

dependence of Eel on the Sargassum.22 Such an uncertainty and an absence of evidence has

15
Subsidiary Body on Scientific, Technical and Technological Advice of the CBD, Marine and Coastal
Biodiversity: Review, Further Elaboration and Refinement of the Programme of Work, at 20,
UNEP/CBD/SBSTTA/8/INF/3/Rev.1 (Mar. 7, 2003).
16
CBD art. 27(3).
17
CMS art. XIII.
18
The Antarctic Treaty art. XI, June 23, 1961, 402 U.N.T.S. 71; Convention on the Conservation of Antarctic
Marine Living Resources art. XXV, Aug. 11, 1983, 1329 U.N.T.S. 47.
19
Southern Bluefin Tuna, (Austl. v. Japan; N.Z. v. Japan), 23 R.I.A.A. 1, ¶58 (Arbitral Tribunal constituted
under Annex VII of the U.N.C.L.O.S. 2000) [hereinafter Bluefin Tuna Jurisdiction].
20
Conference of the Contracting Parties of the CMS, Establishment of a Review Mechanism and a National
Legislation Programme, at 5, UNEP/CMS/Resolution 12.9 (Oct. 2017).
21
U. BEYERLIN, P.T. STOLL & R. WOLFRUM, ENSURING COMPLIANCE WITH MULTILATERAL ENVIRONMENTAL
AGREEMENTS. A DIALOGUE BETWEEN PRACTITIONERS AND ACADEMIA 86 (2006).
22
Record, ¶24.

3
been acknowledged by the applicants as well.23 An examination by the scientific council of

the CMS can provide the missing factual linkages and resolve the scientific uncertainty

inherent in the present dispute. On the contrary, the adjudication of this matter by the ICJ will

involve implicitly approving this scientifically uncertain stance of Alliguna, without

examining the complex bio-chemical inter-linkages. This is inconsistent with the judicial

character of the ICJ.24 Accordingly, the ICJ should not admit the present dispute and

recommend Parties to approach the CMS review mechanism.

2. The ICJ does not have jurisdiction pursuant to the UNFCCC and the PA.
Article 24 of the PA and Article 14 of the UNFCCC confer compulsory jurisdiction upon the

ICJ when there exists a dispute regarding the interpretation and application of the respective

agreements.25 There exists a dispute when Parties hold positively opposed views concerning

the question of the performance or non-performance of certain international obligations.26

The burden of establishing the dispute is upon the applicant 27 and its determination is

contingent upon diplomatic exchanges, public statements, conduct28 and other pertinent

evidence.29 A statement can give rise to a dispute only if it refers to the subject-matter of a

claim with sufficient clarity to enable the State against which a claim is made to identify that

there is, or maybe, a dispute with regard to that subject-matter. 30 Accordingly, a dispute does

23
Record, ¶19, 24.
24
Case concerning the Northern Cameroons (Cameroon v. U.K.), Preliminary Objections, Judgment, 1963 I.C.J.
Rep. 15, at 29 (Dec. 2).
25
Paris Agreement to the United Nations Framework Convention on Climate Change art. 24, Dec. 12, 2015,
U.N. Doc. FCCC/CP/2015/L.9/REV.1. [hereinafter PA]; United Nations Framework Convention on Climate
Change art. 24, May 9, 1992, 1771 U.N.T.S. 10 [hereinafter UNFCCC].
26
South West Africa (Eth. v. S. Africa & Liber. v. S. Afr.), Preliminary Objections, Judgment, 1962 I.C.J. Rep.
319, ¶80 (Dec. 21).
27
Border and Transborder Armed Actions (Nicar. v. Hond.), Jurisdiction and Admissibility, Judgment, 1988
I.C.J. Rep. 69, ¶16 (Dec. 20).
28
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v.
Serb. & Montenegro), Preliminary Objections, Judgment, 1996 I.C.J. Rep. 595, ¶32 (July 11).
29
Fisheries Jurisdiction Case (Spain v. Can.), Jurisdiction of the Court, Judgment, 1998 I.C.J. Rep. 432, ¶31
(Dec. 4).

4
not exist where statements relied upon by the applicant do not articulate a breach of treaty

obligations regarding which a dispute is alleged.31

Climate change obligations are the subject matter of the claims based on the UNFCCC and

the PA.32 Alliguna’s statements or conduct do not aver to the issue of climate change or allege

a violation of climate change obligations. In fact, Alliguna agrees that the current dispute

concerns an alleged possibility of harm to Eels due to the Project.33 Accordingly, it cannot be

established that Revels was aware or could not have been unaware regarding allegations

concerning breach of the UNFCCC or the PA. Hence, there exists no dispute concerning

interpretation and application of the UNFCCC and the PA.

3. The UNCLOS bars the jurisdiction of the ICJ to adjudicate upon the dispute concerning
the freedom at high seas.
Alliguna claims that harvesting of Sargassum exceeds the limitations on freedom at high sea

prescribed by Articles 117, 118 and 192. 34 Revels negates such a claim. 35 Hence, there exists

a dispute concerning interpretation and application of the UNCLOS. The CBD does not

provide for a legal framework for evaluating such dispute concerning the freedom at the high

sea.36 Instead, Article 22(2) of the CBD imposes a positive obligation upon the state parties to

implement activities concerning marine environment consistently with the UNCLOS.37

Accordingly, to the extent the present dispute pertains to exercise of freedom at high seas, the

UNCLOS is the lex specialis as it deals specifically and explicitly38 with rights and
30
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Geor.
v. Russ.), Preliminary Objections, Judgment, 2011 I.C.J. Rep. 85, ¶30 (Apr. 1).
31
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v. U.K.), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 833 ¶51 (Oct. 5).
32
Lavanya Rajamani, The Durban Platform for Enhanced Action and the Future of the Climate Regime, 61
ICLQ 501, 521 (2015).
33
Record, ¶24.
34
Record, ¶22.
35
Record, ¶23.
36
Oil Platforms (Iran v. U.S.), Merits, Judgment, 2003 I.CJ. Rep. 161, ¶177 (Nov. 6).
37
South China Sea Arbitration (Phil. v. China) 2015 P.C.A. Case No. 2013-19, Decision on Jurisdiction, ¶288
(Oct. 29, 2015).
38
Mavrommatis, supra note at 12, at 31.

5
obligations at high seas. Hence, the dispute emerges solely within the UNCLOS and the ICJ

cannot exercise its jurisdiction upon it pursuant to the CBD.

Any dispute concerning the UNCLOS, at the request of any party, is to be submitted to the

court or tribunal having jurisdiction under part XV of the UNCLOS.39 Jurisdiction of such a

forum is excluded solely by an agreement whereby Parties agree to a separate dispute

resolution mechanism entailing a binding decision and exclude the compulsory dispute

procedure within UNCLOS.40 Therefore, to bar recourse to the UNCLOS mechanism, the

terms of Parties’ agreement to resolve their dispute by other peaceful means must expressly

exclude the dispute settlement procedures under Part XV.41 However, nothing in the wording

of Article 27 of the CBD specifically excludes proceedings under Part XV of the UNCLOS.

In the present case, due to different preferences of forum by each party, 42 Annexure VII

Arbitral tribunal is the default forum43 and has exclusive jurisdiction over the present dispute

concerning the exercise of freedom at high seas. Therefore, ICJ does not have jurisdiction

over such a dispute.

B. THE CONDUCT OF SEA CORPORATION IS NOT ATTRIBUTABLE TO REVELS.

1. The conduct of SEA Corporation is not attributable to Revels pursuant to Article 5 of
the ARSIWA.
a. The SEA Corporation is not empowered by law to exercise elements of governmental
authority.
Article 5 of ARSIWA stipulates that the conduct of a person or entity involving exercise of

elements of the governmental authority entrusted upon it by the law of the state, is

attributable to the state.44 Attribution through entrustment of government function is a narrow

39
United Nations Convention on the Law of the Sea art. 286, Dec. 10, 1982, 17 U.S.T. 138, 1833 U.N.T.S. 3
[hereinafter UNCLOS].
40
UNCLOS art. 281(1).
41
Bluefin Tuna Jurisdiction, supra note 19, ¶19 (Dissenting Opinion by Keith, J.).
42
Record, ¶9.
43
UNCLOS art. 287(5).
44
G.A. Res. 56/83, 2002 Articles on Responsibility of States for Internationally Wrongful Acts, art. 5 (Jan. 28,
2002) [hereinafter ARSIWA].

6
category45 and solely includes activities of legislative or administrative character 46 which

involve exercise of prerogative associated with state power.47 However, the function of

climate change mitigation involves sharing of investment, risk, reward and responsibilities

between the public and private sector.48 These actions are often driven solely by commercial

considerations and do not involve engagement of any governmental initiative. 49 Accordingly,

climate change mitigation does not necessarily involve exercise of State prerogative and does

not have an element of governmental authority.

b. In any case, the harvesting of Sargassum by SEA Corporation did not involve exercise of
governmental authority.
In determining whether SEA Corporation exercised governmental functions, the focus must

be on the nature of the specific conduct and not its purpose. 50 The Project was clearly of a

commercial nature as it was performed only when harvesting became financially viable due

to subsidization.51 The SEA Corporation cannot be said to exercise governmental authority

merely because Revels’ policies enable it to become competitive in a free market. 52

Accordingly, the SEA Corporation did not exercise governmental authority while

implementing the Project.

2. The conduct of the SEA Corporation is not attributable to Revels pursuant to article 8 of
the ARSIWA.
45
Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, at 72, [2001]
2 Y.B. Int’l L. Comm’n 31, U.N. Doc. A/56/10.
46
Intn’l Law Comm. Report on the Work of its Eighth Session, at 225, U.N. Doc. A/CN.4/96 (Jan. 20, 1956).
47
Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID Case No. ARB/04/13,
Decision on Jurisdiction, ¶149, (Nov. 6, 2008) [hereinafter Jan De Nul].
48
Commission White Paper on Adapting to Climate Change: Towards a European Framework for Action, COM
(2009) 147 Final, (April 1, 2009); Conference of Contracting parties of the UNFCCC, Dialogue on long-term
cooperative action to address climate, FCCC/CP/2005/Add., 1/CP.11 (Mar. 30, 2005).
49
Conference of Contracting Parties of the UNFCCC Five-year program of work of the Subsidiary Body for
Scientific and Technological Advice on adaptation to climate change, ¶8, FCCC/CP/2005/5/Add.1, 2/CP.11
(Mar. 30, 2006).
50
Jan De Nul, supra note 47, ¶168.
51
Clarification, A18.
52
Ceskoslovenska Obchodni Banka, A. S. v. The Slovak Republic, ICSID Case No. ARB/97/4, Award, ¶23
(Dec. 29, 2004).

7
Article 8 of the ARSIWA purports that a state may, either by specific instructions or by

exercising control over a non-state entity, in effect assume responsibility for their conduct. 53

The threshold of control exercised by the state over a non-state entity for its conduct to be

attributable to the state is that of effective control. 54 Effective control is said to exist when the

degree of control of state over a specific conduct is sufficiently enough for it to be directed or

enforced by the state itself.55 Such a direction or enforcement is achieved where specific

instructions or directives aimed at the commission of a particular conduct is specifically

charged upon a non-state entity.56

The Project had been conceived, planned and executed 57 by the SEA Corporation. A

dependence of SEA corporation on subsidies does not imply that Revels itself directed and
58
executed the Project, especially when its implementation of the Project was not

specifically charged by Revels.59 Furthermore, there exists no evidence which establishes the

interference of Revels in administrative or technological aspects of the Project. Accordingly,

the Project was not under effective control of Revels and is not attributable to it.

3. The conduct of SEA Corporation is not attributable to Revels pursuant to Article 11 of

ARSIWA.
Article 11 provides for the attribution to a State of conduct that was not attributable to it at

the time of commission, but which is subsequently acknowledged and adopted by the State as

its own.60 A mere approval or endorsement of a conduct is not attributable to state. 61 For

53
ARSIWA, supra note 44, art. 5; J. CRAWFORD, STATE RESPONSIBILITY: THE GENERAL PART 111 (2013)
[hereinafter State Responsibility].
54
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, Judgment, 1986 I.C.J.
Rep. 14, ¶115 (June 27) [hereinafter Nicaragua].
55
Id.
56
Id at ¶75; Alfred W. Short v. Islamic Republic of Iran, 16 Iran-U.S. Cl. Trib. Rep. 76, ¶83 (1987) ; Jan de Nul,
supra note 47, ¶163.
57
Nicaragua, supra note 54.
58
Id.
59
Id at ¶16 (separate opinion by Ago, J.).
60
ARSIWA, supra note 44, art. 11.
61
State Responsibility, supra note 53, at 187.

8
 attribution, a State must acknowledge and adopt the conduct in question as its own.62 Such an

adoption must be unequivocal63 and is strictly interpreted.64

Revels issued a press release discussing the success of the renewable energy program. 65 This

was merely a recognition of the effectiveness of the policy which involved subsidization of

entities, including SEA Corporation.66 Revels has repeatedly characterized the program as a

private sector operation.67 Hence, Revels has not adopted the conduct of the SEA Corporation

as its own.

II. EVEN IF THE ICJ HAS JURISDICTION, THE REPUBLIC OF REVELS HAS
NOT VIOLATED INTERNATIONA LAW WITH RESPECT TO THE
HARVESTING OF SARGASSUM IN THE SARGASSO SEA.
A. THE PROJECT IS IN FURTHERANCE OF REVELS’ OBLIGATION TO MITIGATE CLIMATE
CHANGE AND CONSERVE THE EELS.
1. The Project is in furtherance of Revels’ obligation to mitigate climate change under the
UNFCCC and the PA.
Under the UNFCCC and the PA, Parties are under a duty to take effective measures to

mitigate climate change.68 In furtherance of this, Parties have often relied on biofuel

production to reduce their GHG emissions.69 In its NDC, submitted under the PA,70 Revels

included the aim of increasing its reliance on biofuels. 71 In furtherance of this commitment,

Revels allowed the Project and therefore acted in furtherance of its obligations under the

UNFCCC and the PA.

62
Id.
63
Ampal-American Israel Corp. and Others v. Arab Republic of Egypt, ICSID Case No. ARB/12/11, Award on
Liability and Loss, ¶144 (Feb. 21, 2017).
64
State Responsibility, supra note 53, at 188.
65
Record, ¶16.
66
Id.
67
Record, ¶19.
68
UNFCCC art. 3; PA, art. 4.
69
J. SATHAYE & S. MEYERS, GREENHOUSE GAS MITIGATION ASSESSMENT GUIDEBOOK 9-6 (1995).
70
PA art. 4(2).
71
Clarification A9.

9
 2. The Project is in furtherance of Revels' obligation to conserve the Eels and its habitat
under the UNCLOS and the CBD.
The Eel population has experienced a serious decline in the last few decades. 72 By addressing

climate change, which has been recognized as the major cause of their decline (a), Revels has

acted in furtherance of its obligations under the UNCLOS and the CBD (b).

a. Climate change is the major cause of decline in the Eels.

Climate change has been recognized as the primary cause for the decline in the recruitment

and population of the Eels.73 It has led to a reduction in the availability of food for the Eel

larvae by causing an increase in the surface temperature of the Sea.74 It has also affected the

ocean-atmospheric conditions necessary for successful recruitment of the Eels.75 Studies have

shown that these alterations have had and continue to have a negative impact on the growth,

transport, and eventual recruitment of the Eels.76

b. The Project is in compliance with Revels' obligations under the UNCLOS and the CBD.
Under the UNCLOS and the CBD, Parties are under a duty to protect and conserve the marine

environment77 within and beyond their national jurisdiction. 78 In furtherance of these

obligations, Parties must to take active measures,79 but enjoy the discretion of choosing their

preferred means to achieve these objectives.80 In particular, Parties are encouraged to take

72
Record, ¶3.
73
S. Bonhommeau et. al., Impact of Climate on Eel Populations of the Northern Hemisphere, 373 MAR. ECO.
PROG. SER. 71, 78 (2008) [hereinafter Bonhommeau et. al.].
74
W.W. Gregg et. al., Ocean Primary Production and Climate: Global Decadal Changes, 30 GEOPHYS. RES.
LETT. 1809, 1811 (2003).
75
R.C. Kleckner et.al., The northern limit of spawning by Atlantic eels (Anguilla spp.) in the Sargasso Sea in
relation to thermal fronts and surface water masses, 46 J. MAR. RES. 647, 650 (1988).
76
K.D. Friedland et. al., Oceanic changes in the Sargasso Sea and declines in recruitment of the European Eel,
64 ICES J. MAR. SCI. 519, 525-27 (2007).
77
UNCLOS arts. 117, 192; CBD art. 8(d).
78
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, ¶29 (July 8).
79
4 UNIVERSITY OF VIRGINIA SCHOOL OF LAW, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982:
A COMMENTARY, ¶192.9 (M. Nordquist, et. al. ed, 1993).
80
P. BIRNIE, A. BOYLE & C. REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT 386 (3rd ed, 2009)
[hereinafter Birnie et. al.].

10
measures for climate change mitigation in light of the negative impact that it has on

biodiversity, specifically on marine ecosystems.81

As discussed above, climate change is a major threat to marine ecosystems 82 and the Eel

population.83 The Project is instrumental in shifting the energy consumption pattern in favour

of renewables which would help in mitigating the aforementioned threats in the long run. 84

Therefore, by taking effective steps for climate change mitigation, Revels fulfilled its positive

duties under the UNCLOS and the CBD.

B. REVELS DID NOT VIOLATE ITS TREATY OBLIGATIONS.

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

pacta sunt servanda.85 Revels submits that it did not violate its obligations under the

UNCLOS (1), CBD (2) and CMS (3), all of which it is a Party to.86

1. Revels did not breach its obligations under the UNCLOS.

All States have freedom of the high seas.87 However, Parties must ensure that their vessels are

not involved in activities which undermine their duty to conserve and manage marine living

resources, and abuse this right.88 It entails a due diligence obligation89 which requires Parties

to prevent vessels flying their flag from engaging in activities which inflict significant

damage on the marine environment.90

81
Conference of Contracting Parties of the CBD, Marine and Coastal Biodiversity, ¶7,
UNEP/COP/CBD/DEC/X/29 (2010) [hereinafter UNEP/COP/CBD/DEC/X/29].
82
Ove Hoegh-Guldberg & John F. Bruno, The Impact of Climate Change on the World’s Marine Ecosystems,
328 SCIENCE 1523, 1525 (2010).
83
See supra Part II.A.2.a.
84
See supra Part II.A.1.
85
Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331.
86
Record, ¶7-9.
87
UNCLOS art. 87.
88
UNCLOS arts. 117, 192, 300; Request for Advisory Opinion submitted by the Sub-Regional Fisheries
Commission (No. 21), Case No. 21, Advisory Opinion of April 2, 2015, ITLOS Rep. 4, ¶119.
89
South China Sea, (Phil. v. China), PCA Case No 2013-19, Award, ¶951 (July 12, 2016).
90
Id at ¶961.

11
In the instant case, existing scientific data indicates that the Eels do not show any direct or

indirect dependence on Sargassum for purposes like protection or nutrition. 91 Moreover, the

productivity of the Sea, upon which the food availability of the Larvae depends,92 is primarily

controlled by climate-affected factors.93 Even Alliguna failed to present any evidence of

demonstrable negative impact from the Project.94 Therefore, as harvesting large amounts of

Sargassum has not caused any significant harm to the Eels, and in any case is unlikely to pose

a threat to them, Revels did not violate its obligations under the UNCLOS.

2. Revels did not breach its obligations under the CBD.

a. Revels has not violated its duty to sustainably utilize biological resources.
The CBD requires Parties to ensure sustainable utilisation of biodiversity by not causing a

long-term decline through their usage of biological resources.95 Accordingly, Parties are

required to regulate activities involving such utilisation of resources which are likely to have

an adverse impact on other components of biodiversity. 96 As there is no indication of any

adverse impact that Sargassum harvesting has had or will have on the Eels, Revels is not

required to regulate the Project. Hence, Revels has not contravened its obligation to

sustainably utilise biological resources.

b. The status of Ecologically or Biologically Significant Area (‘ EBSA’) does not connote any
legal significance.

91
M.J. Miller, Ecology of Anguilliform Leptocephali: Remarkable Transparent Fish Larvae of the Ocean
Surface Layer, ABSM, Oct. 2009, at 7.
92
Bonhommeau et. al., supra note 73, at 72.
93
W.K.W. Li, Macroecological patterns of phytoplankton in the northwestern North Atlantic Ocean, 419
NATURE 154, 155 (2002).
94
Record, ¶20.
95
CBD arts. 2, 10.
96
CBD art. 10(b).

12
The Sea has been designated as an EBSA under the CBD.97 The conferment of the status of

EBSA is strictly a scientific exercise and does not give rise to any legal obligations. 98 In any

case, Parties enjoy the discretion to choose any method for conservation and management of

such areas as they deem fit.99 Revels took effective measures for climate change mitigation in

furtherance of the conservation of the Sea’s ecosystem. Therefore, Revels conduct is in

accordance with the objective of this exercise.100

3. Revels has not violated its obligations under the CMS.

a. Revels has not violated articles II and IV of the CMS.
Articles II(3)(c) and IV(3) of the CMS require the Range States of Appendix II species to

endeavour to conclude agreements with a view to restore them to a favourable conservation

status.101 The term “endeavour” was specifically incorporated in the convention to afford

Parties a degree of discretion in the performance of this obligation. 102 Accordingly, the

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

identified objectives.103

The Eels are Appendix II migratory species under the CMS,104 and both Alliguna and Revels

are its Range States.105 Revels has fully participated in the Range State meetings and

approved, along with other CMS Parties, a Concerted Action for conservation of the Eels.106

97
Record, ¶18.
98
Conference of Contracting Parties of the CBD, Marine and Coastal Biodiversity: Ecologically or Biologically
Significant Areas, ¶4, UNEP/COP/CBD/DEC/XIII/12 (2016).
99
UNEP/COP/CBD/DEC/X/29, supra note 81, ¶26.
100
Conference of Contracting Parties of the CBD, Marine and Coastal Biodiversity, ¶18,
UNEP/COP/DEC/IX/20 (2008).
101
CMS arts. II, IV.
102
Simon Lyster, The Convention on the Conservation of Migratory Species of Wild Animals (The Bonn
Convention), 29 NAT. RESOURCES J. 979, 987 (1989).
103
Commonwealth of Australia v State of Tasmania, [1983] HCA 21, 530 (Aus. High Ct. 1983).
104
Record, ¶8.
105
Id.
106
Record, ¶20.

13
Therefore, Revels has not violated its obligations under the CMS, but instead has acted in

furtherance of them by working with other Range States.

b. CMS Resolutions are not legally binding on the Parties.

The binding nature of a COP decision and resolutions is contingent upon the power ascribed

to the COP in the treaty text.107 An explicit grant of power to make binding decisions is

needed to issue binding resolutions.108 The text of the CMS solely grants COP the power to

make recommendations to Parties for effective implementation of the Convention. 109

Accordingly, CMS Resolutions 11.27 and Resolution 12.21, the violation of which is claimed

by Alliguna,110 are not binding on Revels.

C. REVELS HAS NOT VIOLATED THE PRECAUTIONARY PRINCIPLE (‘PP’) AND IN FACT
ACTED IN FURTHERANCE OF IT.
1. Revels has not violated the PP in respect of the Eels.
The PP is a customary norm111 which obligates States to take cost-effective measures to

protect the environment when there is threat of serious or irreversible damage, despite lack of

full scientific certainty.112 For a State to be held in violation of the PP, the party alleging the

possibility of harm must provide proof of risk113 through existing scientific data.114

Alliguna alleged risk of harm based on a mere inference that harvesting Sargassum will harm

the Eels by affecting the Sea’s ecosystem.115 In fact, as discussed above, harvesting of

107
Volker Röben, Institutional Developments Under Modern International Environmental Agreements, 4 MAX
PLANCK UNYB 364, 372 (2000).
108
Id at 373.
109
CMS, article VII(5)(g).
110
Record, ¶20.
111
A. TROUWBORST, EVOLUTION AND STATUS OF THE PRECAUTIONARY PRINCIPLE IN INTERNATIONAL LAW
284 (2002).
112
Rio Declaration on Environment and Development, Principle 15, U.N.Doc.A/CONF.151/5/Rev.1 (Aug. 12,
1992) [hereinafter Rio].
113
MOX Plant Case (Ir. v. U.K.), Case No. 10, Order of Dec. 3, 2001, [2001] ITLOS Rep. 89, ¶75.
114
P. SANDS, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 222 (2003).
115
Record, ¶20.

14
Sargassum does not pose any risk of serious harm to the Eels.116 Therefore, Revels has not

violated the PP in respect of the Eels.

2. The PP favours the continuation of the Project.

Under the PP, Revels is required to take cost effective measures117 to mitigate climate

change118 and prevent significant loss of biodiversity.119 The threats of climate change to

marine ecosystems and the Eel population have been discussed above.120

Under its renewable energy program, Revels provided subsidy to the Project121 in furtherance

of its obligation to combat climate change.122 The Project is a cost effective measure as

Sargassum is a good source of biofuel due to its fast growth rate, ease of harvesting and low

production cost.123 Therefore, through the Project, Revels is acting in accordance with the PP

for mitigating climate change and conserving the Eels.

D. REVELS HAS NOT VIOLATED ITS DUTY TO PREVENT TRANSBOUNDARY HARM.

1. Revels did not cause transboundary harm to Alliguna or any other State.
To prove transboundary harm there must be a direct evidence of significant harm 124 and a

causal link between the activity and that harm. 125 Such causation must be established by

“clear and convincing evidence”.126

116
See supra Part II.B.1.
117
Rio, supra note 112, Principle 15.
118
UNFCCC art. 3(3).
119
CBD Preamble ¶9.
120
See supra Part II.A.2.
121
Record, ¶14.
122
See supra Part II.A.1.
123
L.M. Díaz Vazquez et. al., Demineralization of Sargassum Spp. Macroalgae Biomass: Selective
Hydrothermal Liquefaction Process for Bio-oil Production, FRONT. ENERGY RES., Feb. 2015, at 1.
124
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and Construction of
aRoad in Costa Rica along the San Juan River (Nicar. v. Costa Rica), 2015 I.C.J. Rep 665, ¶203, 204 (Dec. 16)
[hereinafter Certain Activities].
125
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].
126
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 14, ¶265 (Apr. 20) [hereinafter
Pulp Mills].

15
Revels submits, not only that Alliguna has failed to establish a certain causal link between the

Project and any negative impact on the Eels,127 but also that the Eel population has been

declining as a consequence of various factors ranging from habitat destruction to climate

change.128 As a causation cannot be established due to multiple intervening factors affecting

the Eels,129 no transboundary harm been caused to Alliguna or any other State.

1. Revels discharged its due diligence obligations.

Duty to prevent transboundary harm is an obligation of conduct,130 which requires States to

observe an appropriate standard of due diligence while conducting an activity 131 in order to

avert significant transboundary harm.132 Revels did not breach this duty because it observed

the required standard of due diligence by assessing possible impacts of the Project (a) and is

not under any further obligation to cease or regulate the Project (b).

a. Revels observed the required standard of due diligence by assessing possible impacts
of the Project.
The due diligence obligation requires a State to make reasonable efforts to inform itself of the

foreseeable impacts of the activity it seeks to conduct, and decide its subsequent actions on

the basis of this assessment. 133 Conducting an EIA is the most commonly accepted form of

risk assessment resorted to by States for discharging this obligation. 134 The SEA Corporation

conducted an EIA before commencing the Project. Given the indeterminate nature of the

EIA, Revels’ only available option was to place reliance on available scientific data. 135 This

was sufficient in discharging this obligation.

127
Record, ¶20.
128
M. Gollock, et. al., Anguilla Anguilla. IUCN Red Book of Threatened Species 431 (2014).
129
J. BARBOZA, THE ENVIRONMENT, RISK AND LIABILITY IN INTERNATIONAL LAW 11 (2011) .
130
Pulp Mills, supra note 126, ⁋197.
131
Certain Activities, supra note 124, ¶10 (separate opinion Donoghue, J.).
132
DAPTH, supra note 125, at 154.
133
DAPTH, supra note 125, at 154.
134
Pulp Mills, supra note 126, ¶204.
135
Record, ¶19.

16
 b. There is no further obligation on Revels to cease or regulate the Project.
Duty to take preventive measures in the context of authorization and regulation is limited to

activities where States could have reasonably foreseen 136 a risk of significant transboundary

harm arising from the activity.137 In the instant case, Revels was not required to take

preventive measures as drastic as cessation or regulation of the Project. 138 This is because

uncertainty in the result of the EIA does not require States to take such measures (i), and

Alliguna did not establish risk of significant harm (ii). The burden of proving a breach of this

obligation lies on the Claimant State. However, Alliguna must establish that the Project poses

a risk of significant harm and it requires Revels to cease or regulate the Project.

i. The indeterminate EIA does not warrant cessation or regulation of the Project.
With respect to due diligence obligations, state practice evinces that the mere factum of

uncertainty in the result of an EIA does not preclude the operation of activity itself. 139

Likewise, Revels cannot be expected to cease or terminate the Project unless Alliguna can

provide evidence of risk of significant harm to the Eels, as the burden of proof lies on the

Claimant State. 140

ii. Alliguna failed to prove risk of significant harm.

Duty to take preventive measures does not arise in situations where there is a low probability

of significant harm.141 As established above, the Eels are neither directly nor indirectly

dependent on Sargassum. 142 Such an absence of dependence indicates that the likelihood of

the Project causing any harm to the Eels is very low. In light of these facts, and considering

136
Certain Activities, supra note 124, ¶10 (separate opinion Donoghue, J.).
137
DAPTH, supra note 125, at 148.
138
Id at 152.
139
Guidelines for Ecological Impact Assessment in the UK and Ireland Terrestrial, Freshwater, Coastal and
Marine, ¶5.38 (2018); Netherland Commission for environmental assessment, Key Sheet: Dealing with
uncertainties in EA, at 2 (Sept. 2011).
140
Pulp Mills, supra note 126, ¶162,163.
141
DAPTH, supra note 125, at 152.
142
See supra Part II.B.1.

17
that Alliguna has failed to substantiate its allegations with evidence, any claims that Revels

must cease or regulate the Project are baseless.

E. REVELS DID NOT BREACH ITS DUTY TO COOPERATE.

1. Revels complied with its duty to cooperate in respect of biodiversity in ABNJ.
Duty to cooperate in respect of ABNJ has been recognized in the UNCLOS,143 the CBD144 and

customary international law.145 It requires States to negotiate in good faith 146 and not act in a

way which defeats the legitimate expectations of other States.147

The negotiations for development of a legally binding instrument for the conservation and

sustainable utilisation of biodiversity in ABNJ are still in progress.148 Pending the adoption of

such an instrument, Revels submits that the Project is not opposed to, but in furtherance of

the object of these negotiations,149 as it seeks to mitigate climate change which is a major

threat to marine biodiversity.

2. Revels fulfilled its duty to cooperate with Alliguna.

Duty to cooperate requires States to enter into good faith negotiations with other States 150 and

not adamantly reject any concern which runs contrary to their own interest. 151 However, it

does not imply that one State must concede to the unwarranted concerns of the other.152

143
UNCLOS art. 118.
144
CBD art. 5.
145
Birnie et. al., supra note 80, at 194.
146
Nuclear Tests (N.Z. v. Fr.), Judgment, 1974 I.C.J. Rep. 4, ¶46 (Dec. 20).
147
The Indo-Pakistan Western Boundary (Rann of Kutch) (India v. Pak.), Award, 17 R.I.A.A. 553, at 47 (Perm.
Ct. Arb.1965).
148
Record, ¶22.
149
G.A. Res. 69/292, at 2 (July 6, 2015).
150
Lac Lanoux Arbitration (Fr. v. Spain), 12 R.I.A.A. 281, at 23 (Perm. Ct. Arb. 1957) [hereinafter Lac
Lanoux].
151
North Sea Continental Shelf (Ger. v. Den. & Neth.), Judgment, 1969 I.C.J. Rep. 3, ¶85 (Feb. 20).
152
Lac lanoux, supra note 150, at 26.

18
Revels' participation in negotiations and mediation with Alliguna, immediately after both

parties expressed their opposing concerns, sufficiently demonstrates that Revels discharged

this duty in good faith.

19
 CONCLUSION

Revels respectfully requests the Court to adjudge and declare that:

1. The ICJ does not have jurisdiction to determine the present matter and the

conduct of the SEA Corporation is not attributable to Revels.

2. Revels has not violated international law by conducting the Project.

Respectfully Submitted,

Agents for the Respondent

XII