San Beda College- Alabang

School of Law

Case Concerning Environmental Law and Antarctica

STATE OF LEONIA
APPLICANT
v.
STATE OF VULPINIA
RESPONDENT

Submitted by:

DESINGANO, Harris Jayson U.

MIRANDA, Ma. Cristina
RAMOS, Alexandrea D.
VALERIANO, Charles Daniell B.
VENTILACION, Vernis S.
VILLAR, Isabelle Louise J.

MEMORIAL FOR RESPONDENT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES ………………………………………………………………..

STATEMENT OF FACTS …………………………………………………………………..

STATEMENT OF JURISDICTION ……………………………………………………….

QUESTIONS/ ISSUES PRESENTED ……………………………………………………

SUMMARY OF PLEADINGS ……………………………………………………………...

PLEADINGS …………………………………………………………………………………
I. The State of Leonia has no legal standing over the Stella Maris Ice shelf because it is
“Terra Nullius.” It has failed to comply with guidelines provided under the Antarctic
Treaty of 1959.
…………………………………………………………………………………………
II. Leonia is estopped from praying for compensation over the degradation of the Stella
Maris ecosystem. The state’s authorized agents participated in the disposal of the
hazardous waste, alongside the agents of Vulpinia.
………………………………………………………
III. The dumping of the chemical substances at the sea is justified under the “Doctrine of
State of Necessity” …………………………………………………………………………
IV. The new discovered species of asteroid echinoderms (starfish) was unknown to Dr.
Detritus and the Government of Vulpinia
…………………………………………………….

A. The discovery by Prof. Handlin was not disclosed …………………….

V. The State of Leonia has no legal right to claim any damages arising from the marine
research conducted by Prof. Handlin. ……………………………………………………

VI. The waste matters that were disposed of at sea were not categorized as prohibited waste or
other matter and such disposal was in accordance with the permission of the other state under the
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter of
1972. …………………………………………………………………………………………
 A) The five drums which contained highly corrosive and explosive substances are not
prohibited substances …………………………………………………………………

PRAYER FOR RELIEF ………………………………………………………………………

 INDEX OF AUTHORITIES

I.C.J, P.C.I.J CASES 

Gabčíkovo-Nagymaros (International Court of Justice September 25, 1997). ………………….
Germany v Poland, Judgment, Claim for Indemnity, Merits, Judgment No 13, (1928) PCIJ Series
A No 17 …………………………………………………………………………………
Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997] ………………………………..
United States v Netherlands, Award, (1928) II RIAA 829, ICGJ 392 (PCA 1928), 4th April
1928,
Permanent Court of Arbitration [PCA] ………………………………………………
U.K. v. Iran, Judgment, 1952 I.C.J. 93 (July 22,1952) …………………………………………

INTERNATIONAL CONVENTIONS 
Article 240, United Nations Convention for the Law of the Sea of 1982 ……………………
Article 241, United Nations Convention for the Law of the Sea of 1982 ……………………
Article IV, Antarctic Treaty of 1959 ………………………………………………………..
Article IV, Convention on the Control of Transboundary Movements of Hazardous Wastes and
Their Disposal ……………………………………………………………………..
Article IV, London Convention (1972) …………………………………………………….
Article IV, The Convention for the Conservation of Antarctic Marine Living Resources …..
Article X, Convention on the Control of Transboundary Movements of Hazardous Wastes and
Their Disposal ……………………………………………………………………..
Article XI, Antarctic Treaty of 1959 ……………………………………………………….

OTHER AUTHORITIES 
Nuclear Threat Initiative. (2005). Retrieved from
https://media.nti.org/pdfs/anartica_annexVI.pdf ..............................................................................
...........................................................................................
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE. (n.d.). Retrieved from
https://www.icj-cij.org: https://www.icj-cij.org/en/statute ................................................
United Nation Office of Legal Affairs. (n.d.). Retrieved from legal.un.org:
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf ............
 STATEMENT OF THE FACTS

BACKGROUND

Dr. Detritus

Dr. Detritus is a citizen of the state of Vulpinia and considered to be a leading expert in
hazardous waste disposal in the State of Vulpinia . He has an international reputation as one of
the best in his field. He has solved many extremely difficult hazardous waste disposal problems
that posed Vulpinia’s thriving industries. If appropriate sites for disposal were not available in
Vulpinia, he would negotiate with foreign governments for the safety disposal of waste on their
territories in accordance with environmental policies established by those countries and
applicable international agreements.

Terra Nullius

As waste disposal sites have filled up and states have become wary of providing sites for
hazardous waste disposal, Dr. Detritus has found it increasingly difficult to serve his clients. On
the 3rd of April in 1987, Dr. Detritus read a headline on a local newspaper entitled “The Leonia
Biologist Prof. Handlin Back from Expedition in Antarctic Terra Nullius”. The headline
suggested to Dr. Detritus that there may exist an area of land not claimed by any state that he can
freely use for his waste disposal operations.

Antarctic Treaty of 1959

The Antarctic Treaty provides that all states which might make effective claims to the
Antarctic Continent had agreed not to make new claims while the Treaty is in force.
Subsequently, it also prohibits military activities and the disposal of radioactive waste in
Antarctica. No mention is made of the disposal of other waste.
Exploring the safety disposal of hazardous waste

Armed with the information of what the treaty prohibits, Dr. Detritus gathered opinions
of experts familiar with Antarctica's geography. He found that certain places in the region may
be used for long term disposal of hazardous waste.

Dr. Detritus decided to experiment by placing 100 drums of his typical hazardous waste
on an unclaimed isolated tongue of the ice shelf named Stella Maris.

He shipped it to Antarctica on his Vulpinian flag vessel; the placement of the drums
proceeded without incident and without publicity.

State of Leonia

As a consultative party to the 1959 Antarctic Treaty, the Leonian Intelligence Agency
observed the activities of the Vulpinian vessel. The Foreign Office decided not to interfere, but
they still sent the Navy in order to ascertain exactly what had transpired. Thereafter, the Leonian
Navy arrived at the Stella Maris and determined that the drums did not contain radioactive
materials.

Minister of Foreign Affairs

Minister Mr. Darkeye telephoned Vulpinian Minister, Mr. Fox, and explained the facts as
he understood them to be. Mr. Fox said that his government was not aware of the disposal effort,
but no law of Vulpinia prohibits Dr. Detritus to export of such waste. Mr. Darkeye, the Leonian
Minister, took the position that his country had an obligation to ensure that no one engaged in
any activity incompatible with the text or spirit of the Antarctic Treaty. He suggested that the
disposal of the hazardous waste by Dr. Detritus’ Vulpinian company constituted a violation of
the treaty. Minister Fox offered to remove the materials and to arrange for its proper disposal
elsewhere if the Government of Leonia wished to do so. The State of Vulpinia would prefer to
undertake this action without prejudice to its legal position.

Agreement
 On the 2nd of February 1988 the ministers agreed that the question could be settled
discreetly. Due to its executive nature, it was not subjected in either state to parliamentary
approval. Neither government published the agreement nor informed any other state or foreign
officials.

Leonia and Vulpinia agreed that:

1. Vulpinia to recover the 100 drums of waste and remove them from the
Antarctic Treaty Area in order to re-establish the situation that previously existed.

2. Vulpinia shall grant Leonia the right to be represented by observers on

board the vessel responsible for recovering the drums to monitor the activities.

Interim period

Since it was impossible to remove the drums during the Antarctic winter, the expedition
had to wait for months before departing. During the interim, Dr. Detritus and his experts studied
the situation and ran experiments to determine the safest and most expeditious way for them to
remove the drums without damage to the Antarctic environment.

After determining that the drums could be removed safely, they reported this to the
Government of Vulpinia. And they were authorized by the Vulpinian Government to proceed to
Antarctica for the purposes of removing the drums.

Recovery Operation

On the 7th of January 1988, Dr. Detritus’ Vulpinian ship, the “Arianna,” approached the
site where the drums were located. On board were a team of technicians from Dr. Detritus’
company, officials of Vulpinia under the command of Captain Capablanca, and the observers of
Leonia under the command of Lieutenant Rubinetti. The recovery operation went according what
was planned, the 95 drums were transported without a problem to Vulpinia where they were
placed in an active hazardous waste disposal site while a problem arose in regard to five drums.

Five drums
 The five drums contained a highly corrosive and explosive substance which damaged the
drums. Dr. Detritus’ experts recommended that the best solution would be to carefully open the
drums, which could still explode, and let the contents flow into the sea. These experts reported
that experiments conducted before the voyage, established that within no more than ten days the
sea water would dissolve the substance and it would cause no lasting damage. The Government
of Vulpinia responded that their officials should trust the recommendation of Dr. Detritus
experts. The Leonia Government’s response was that its observers should not interfere with the
activities and that they should report on what transpired. The contents of the five drums were
subsequently discharged into the sea. Within ten days after the discharge, all chemical and
physical analyses of the waters in the area showed that there were no traces of the chemical
waste and that the waters had recovered all of their purity and quality.

Professor Handlin’s discovery

Professor Handlin, who is also a Leonian citizen, is a prominent authority in Antarctic

marine biology. In his Antarctic expedition in 1987, he discovered a new species of asteroid
echinoderm (commonly known as starfish.). It was completely different from any kind of starfish
he knew, and was extraordinarily adapted to live in the unique environment in which it was
found, the waters in the immediate vicinity of the unclaimed isolated tongue of the shelf used by
Dr. Detritus for his hazardous waste disposal experiment. His studies showed that the starfish
rapidly dies if there were any changes in the unique balance of temperature, purity and salinity or
transparency of the water in which they were located. Professor Handlin returned to Antarctica to
conduct further on site studies of the starfish before publicly announcing his discovery. What he
discovered when he arrived at Stella Maris was that the entire species had been wiped out by the
hazardous waste discharges from Dr. Detritus’ five drums. Professor Handlin returned to Leonia
to make the announcement.

Pressure

When the entire story became known, the Governments of both Leonia and Vulpinia
were put under strong pressure by the world scientific community, environmental associations,
and the public at large. The Governments of Leonia and Vulpinia issued a joint communique
expressing their deepest regret for the loss of the species, and restated their full commitment to
the preservation and protection of the unique and delicate Antarctic environment.

Negotiations

Negotiations were conducted between the two ministers to explore the question of
remedies.

Minister Darkeye strongly insisted that Vulpinia had to pay Leonia, as an Antarctic
Treaty Consultative Party, compensation that would provide satisfaction for the irreparable loss
of the species. Min. Darkeye alleged that Vulpinia had violated international obligations found in
customary and conventional international law including the exchange of notes of February 2,
1988.

Minister Fox argued that his government had taken the most careful steps to correct the
situation and the Leonian officers onboard were fully aware of the situation. It was not his
government’s fault that Professor Handlin kept his alleged discovery secret and thereby failed to
alert the public to the otherwise unknown risks to the starfish. He concluded that the dumping of
hazardous waste was not forbidden under international law binding on Vulpinia or by Vupinia’s
domestic law. After months of negotiations it became apparent that they had reached an impasse.

Treaties and other International agreements the parties adhere to.

The state of Leonia and the state of Vulpinia have also signed and ratified the following
international agreements and conventions 1. The United Nations Charter 2. The Vienna
Convention on the Law of Treaties of 1969 while with regards to the Convention on the Control
of Transboundary Movements of Hazardous Wastes and their Disposal of 1989 and the United
Nations Convention on the Law of the Sea of 1982 both parties are only signatories.

Lastly, only the State of Leonia have both signed and ratified these international
Conventions:

1. The Antarctic Treaty of 1959;

2. Convention on the Conservation of the Antarctic Marine Resources of 1980;
and
 3. Convention on the Prevention of Marine Pollution by dumping wastes and
other Matter of 1972 with the state of Vulpinia taking no action on these
treaties.

Application to the Court

The State of Leonia and the State of Vulpinia decided to submit the dispute to this Court
by Special Agreement.

STATEMENT OF JURISDICTION

The State of Leonia, as applicant, and the State of Vulpinia, as respondent, are the parties to this
case submitted to the International Court of Justice (ICJ) for disposition. In accordance with
Article 36, Paragraph 1 of the Statute of the International Court of Justice, the State of Leonia
and the State of Vulpinia submitted the following dispute to the Court as reflected by a special
agreement. There being no other procedural impediment. The issues being raised are hereby
submitted and ripe for adjudication.
 QUESTIONS PRESENTED

Is the State of Leonia entitled for the payment of the compensable damage for the loss of the
newly discovered starfish species?

II

Should the state of Vulpinia be made liable for the loss of the newly discovered starfish species
found in the Stella Marie Ice Shelf?

III.

Is the use of the Stella Maris Ice Shelf as a dump site for the use of the State of Vulpinia in
accordance with International law?
 SUMMARY OF PLEADINGS

First Pleading

The facts and circumstances stated above have indicated that the State of Leonia does not
have a legal standing before the International Court of Justice to pray for compensation over the
damages caused by the wasted materials dumped by Dr. Detritus and his company. Such was
due to the reason that the Stella Marie Ice Shelf is incapable of being subjected to ownership by
any state by virtue of the Antarctic Treaty of 1959. Leonia is a signatory to such treaty.

Furthermore, being considered as “Terra Nullius”, the Stella Maris Ice Shelf is owned by
all countries, whether or not it is a signatory of the Antarctic treaty. Hence, by operation of law
and through application of the general principles accepted by the international community,
Vulpinia has a share over the ice shelf involved. Moreover, Leonia has failed to observe the
procedural guidelines under the treaty before any case can be filed. Therefore, the State of
Leonia cannot insist that it has sole jurisdiction over the Stella Mari Ice Shelf.
Second Pleading

The State of Leonia is estopped from claiming compensation from Vulpinia. Agent
Lieutenant Rubenetti of Leonia and the whole Leonian government participated during the
disposal operations conducted by Dr. Detritus’ team. And he who comes to court must come in
clean hands. It is evident from the foregoing that both the applicant and the respondent are
equally responsible for the damage caused in the Stella Maris ecosystem.

Third Pleading

The Antarctic Treaty was intended to protect the ecosystem of the Antarctic. Although
the State of Vulpinia is not a signatory thereto, the respondents posit that even if it ratifies the
Antarctic Treaty and its Annexes, it cannot be made liable for e the extinction of the newly-
founded starfish species because the Environmental Protocol and the Doctrine of State of
Necessity dictates that no liability may be imputed to the operator of an environmental
emergency if the act was done to in view of a grave and imminent peril and environmental
damage was necessary and the only way, as may be reasonably contemplated, to protect the
essential interest of the operator.

Fourth Pleading

Under Article III of the Antarctic Treaty of 1959, paragraph 3, to promote international
cooperation in scientific investigation in Antarctica, as provided for in Article II of the present
treaty, the Contracting Parties agree that, to the greatest extent feasible and practicable, scientific
observations and results from Antarctica shall be exchanged and made freely available.
Considering this treaty, State of Leonia, Prof. Handlin did not freely make available his research
about the newly discovered species of asteroid echinoderm (starfish). His study showed that
these species rapidly die if there were any changes in the unique balance of temperature, purity,
salinity or transparency of water in which they were located. Knowing this information is crucial
in his part, he should have made it known publicly to properly protect these fragile species. The
result of his lack of action, did not bear negligence or incompetence on the part of Dr. Detritus
and his team who disposed of the substances at sea.

Fifth Pleading

The marine research conducted on the Stella Maris Ice Shelf should not be made as a
basis on the part of the State of Leonia to claim any damages from the Government of Vulpina.
Under United Nations Convention on the Law of the Sea, marine research should be conducted
for peaceful purposes, hence the argument of the State of Leonia should not prosper. The Stella
Maris Ice Shelf should be free to all states who wish to conduct their study or research.

Sixth Pleading

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter of 1972, specifically Article IV provides that contracting parties shall prohibit the
dumping of any wastes or other matter in whatever form or condition except as otherwise
specified such as:

a) The dumping of the wastes or other matter listed in Annex I is prohibited

b) The dumping of wastes or other matter listed in Annex II requires a prior special
permit

c) The dumping of all other wastes or matter requires a prior general permit

The matters that were to be dealt with were the five drums that contained a highly
corrosive and explosive substance which were risky for both the crew of the vessel and can result
in further marine pollution. It can be said that the waste matter that was disposed by the parties
involved was not under the categories defined by the law. Even though the substances were
highly corrosive and explosive, the experts, knowing very well that these substances can be
dissolved by sea water within ten days and there will be no lasting damage that will be caused.
Thus, the purpose of the law was not defeated by the action that was made by the team.

PLEADINGS

I. THE STATE OF LEONIA HAS NO LEGAL STANDING OVER THE

STELLA MARIS ICE SHELF BECAUSE IT IS “TERRA NULLIUS.” IT HAS
FAILED TO COMPLY WITH GUIDELINES PROVIDED UNDER THE
ANTARCTIC TREATY OF 1959.

Leonia is barred from recovering compensable damages against the Vulpinia because the
Stella Maris Ice Shelf is “Terra Nullius” or uninhabited and no state has ever exercised
jurisdiction over it. Pursuant to jurisprudence decided by this Honorable Court in the case of
Island of Palmas, only those who exercised acts of sovereignty and occupation are considered to
have exclusive dominion over the lands in question1.

In the case at bar, it is evident from the foregoing facts that the discovery of the Stella
Maris Ice Shelf was only tackled on April 9, 1987 by Professor Hardin and thereafter, made
known to the public through a newspaper headline. Hence, before 1987, both parties were
strangers to the Stella Maris Ice Shelf and had no definitive claim over it. Being strangers to the
ice shelf, how could Leonia acquire the prescribed juridical personality to sue the Vulpinia for
the damages caused to the Stella Maris Ice Shelf and considering that it is not even part of its
territory.

To reinforce this premise, Article IV of the Antarctic Treaty provides that no exercise of
sovereignty or new claim can be done on all parts of the polar continent whether they are
discovered or not. It is also stated in Article IV of the Convention for the Conservation of
Antarctic Marine Living Resources that contracting parties, whether or not signatories to the
Treaty, shall not create any right of sovereignty in the Antarctic Treaty Area 2. Clearly, filing a
case founded on a cause of action for parts of the said land is a manifestation that Leonia
imposes an act of sovereignty over the Stella Maris Ice Shelf3.

In addition, since the ice shelf in question is agreed upon by the parties as “Terra Nullius”
and with the treaty of Antarctic in force, means that the Stella Maris Ice Shelf can be enjoyed by
any state as part of the common heritage of mankind. Even if assuming that the dumping of the
waste materials over the said ice shelf is contrary to customary international law, Leonia has no
legal personality to sue because the procedural guidelines are not compiled with. Leonia cannot
file a case against Vulpinia because Article XI of the same treaty states that before any legal
procedure can be undertaken the controlling members must first be consulted. In this case,
Leonia has failed to observe such requirements. Thereby, Leonia is stripped of any legal standing
to sue solely for the damage caused to the Stella Maris Starfishes4.

1
United States v Netherlands, Award, (1928) II RIAA 829, ICGJ 392 (PCA 1928), 4th April
1928, Permanent Court of Arbitration [PCA]
2
Article IV, The Convention for the Conservation of Antarctic Marine Living Resources
3
Article IV, Antarctic Treaty of 1959
4
Article XI, Antarctic Treaty of 1959
II. LEONIA IS ESTOPPED FROM PRAYING FOR COMPENSATION OVER THE
DEGRADATION OF THE STELLA MARIS ECOSYSTEM. THE STATE’S
AUTHORIZED AGENTS PARTICIPATED IN THE DISPOSAL OF THE HAZARDOUS
WASTE, ALONGSIDE THE AGENTS OF VULPINIA.

Leonia is barred by estoppel to sue Vulpinia. It also participated in the retrieval

operations together with Dr. Detritus. It is evident from the foregoing facts that the two
governments remained in constant contact with one another from planning to the actual
undertaking of the disposal participated by Lieutenant Rubenelli of the Leonian Navy. Hence,
the doctrine on State of Responsibility has also set in5. for under this cardinal rule in international
law the actions of authorized state agents are reflections of the will of its governments. Thus, the
Leonian government cannot deny this fact and it cannot stand to be benefited from a wrong
doing that it too is a participant.

Furthermore, as a participant in the disposal operation, the doctrine on “Pari Delicto”

would also apply. From the exchanges between the ministers of the two nations and the acts of
those who participated, it can be concluded that both of the parties have knowledge and are
aware of the act of discharging the waste materials around the Stella Maris Ice Shelf 6. As the
term “Pari Delicto” states, Vulpinia cannot deny its liability in the incident because the acts of
their agents would also constitute state responsibility. It was their acquiescence to the proposal of
Dr. Detritus that led to the faithful decision.

In addition, the term “compensable damages” is defined under international law as the
breach of obligation of an engagement involves an obligation to make reparation 7. And under
Philippine jurisdiction, “damages” is defined as a sum of money levied upon anybody by
mandate of law as pecuniary compensation for the satisfaction of an injury done or a wrong
sustained either for a breach of contract or a tortious act. In the case at bar, it could be
established that there is neither an existing contract between the two states as to the proper
disposal of the waste materials dumped by Vulpinia nor it can be considered as tortious act by

5
Hungary v Slovakia, Judgment, Merits, ICJ GL No 92, [1997]
6
E. Sabbath The International and Comparative Law Quarterly Vol. 8, No. 4 (Oct., 1959)
7
Germany v Poland, Judgment, Claim for Indemnity, Merits, Judgment No 13, (1928) PCIJ
Series A No 17
the respondent considering that Leonia cannot exercise powers of administration or ownership
over the Stella Maris Ice Shelf8.

III. THE DUMPING OF THE CHEMICAL SUBSTANCES AT THE SEA IS JUSTIFIED

UNDER THE “DOCTRINE OF STATE OF NECESSITY”

The State of Vulpinia is not a signatory to the Antarctic Treaty. However, even under the
coverage of the Antarctic Treaty, the action of the State of Vulpinia is exempted from liability
under the Protocol on Environmental Protection to the Antarctic Treaty. Noting that the Protocol
is a 2005 issuance, its application would be a mere assumption but the same argument is reached
with the application of the Doctrine State of Necessity in Customary International Law, which
will be further discussed in this argument.

Under Article 8(1) of the Protocol , it is stated that “an operator shall not be liable
pursuant to Article 6 if it proves that the environmental emergency was caused by: (a) an act or
omission necessary to protect human life or safety9”. From the facts, the action of the State of
Vulpinia was a recovery operation or in the words of the Protocol, a “response action” made to
clean up the hazardous waste in the Stella Maris Ice Shelf. In effecting the recovery operations,
the last five drums were heavily damaged and may explode at any time. The explosion would
create an environmental emergency of possible cracking of the Stella Maris Ice Shelf; possible
explosion and release into the ocean of the 95 other drums of hazardous material; the possible
death of the personnel of the State of Vulpinia involved in the recovery operation and the
personnel of the State of Leonia who accompanied the recovery operation; and the possible
explosion and release of oil from the engine of MV Arianna. In this environmental emergency,
the protocol requires that the response action and preventive measure be reasonable. Under
Article 2 of the Protocol, Reasonable means the actions appropriate based on the following
criteria:

(i) risks to the Antarctic environment, and the rate of its natural recovery;

8
Oscar Ventanilla vs Gregorio Centeno G.R. No. L-14333 January 28, 1961
9
Nuclear Threat Initiative. (2005). Retrieved from
https://media.nti.org/pdfs/anartica_annexVI.pdf
 (ii) risks to human life and safety; and

(iii) technological and economic feasibility10;

Since the application of the Protocol is a mere assumption, its similarity to the Doctrine of State
of Necessity needs to be discussed for it to be applicable in the herein dilemma. The Doctrine of
State of Necessity was discussed thoroughly in the Gabčíkovo-Nagymaros case or more
commonly known as Hungary vs Slovakia case of 1997. In the judgement, the ICJ took note of
what was formerly a draft of the International Responsibility of States and the discussions of the
International Law Commissions. It was stated therein that for the Doctrine of State of Necessity
to apply in justifying the non-compliance to an international obligation, it must conform strictly
to the conditions set forth in Article 33 as follows:

 “it must have been occasioned by an “essential interest” of the State which is the
author of the act conflicting with one of its international obligations;
 that interest must have been threatened by a “grave and imminent peril”;
 the act being challenged must have been the “only means” of safeguarding that
interest; that act must not have "seriously impair[ed] an essential interest" of the State
towards which the obligation existed; and
 the State which is the author of that act must not have “contributed to the occurrence
of the state of necessity11.”

The Protocol and the International Responsibility of States were not yet in effect at the
time of occurrence of the case at bar but the concept of State of Necessity has always been part
of International Customary Law and the Discussions of the International Law Commission
enlightens the both the parties debating on the liability for the extinction of a starfish species in
the Antarctic, that the Antarctic Treaty was established not for the purpose of imputing liability
in every instance that the environment of the Antarctic be exposed to hazardous substance, but
to afford actions dealing with hazardous substances enough leeway or justification when they
will inevitably affect the environment, for the prevention of a grave and imminent peril, and

10
Nuclear Threat Initiative. (2005). Retrieved from
https://media.nti.org/pdfs/anartica_annexVI.pdf
11
Gabčíkovo-Nagymaros (International Court of Justice September 25, 1997).
considering the proportionality of the danger to the environment and the essential interest being
preserved. In interpreting what the Antarctic Treaty leans upon the respondents posit that the
State of Vulpinia’s decision-making was in consonance with Article 18 of the 1969 Vienna
Convention on the Law of Treaties, to which the State of Vienna indicated its ratification, that it
is acted having in mind its obligation not to defeat the purpose and objective of the treaty12.

Going back to what transpired before the hazardous waste was poured into the ocean, the
State of Vulpinia consulted with the experts of Dr. Detritus on how to deal with the damaged
drums of hazardous waste. That consultation enlightened the personnel of the State of Vulpinia
that the 5 drums could explode upon contact--that the lives and safety of the people present
during the response action were at risk; that further transportation of the 5 drums may still result
in explosion because of the damage in the container; and most importantly, that leaving the
drums and pouring its contents into the ocean would be the best way to accommodate all
interests because as far as science knows, the environment under the Stella Maris Ice Shelf could
dissolve the substance and no lasting damage would occur. At the time of the incident, the expert
opinions of Dr. Detritus and his colleagues were reached having no knowledge of the existence
of the new starfish species, and no knowledge may be attributed thereto because Prof. Hadlin had
not released any sort of information regarding their existence. If at the time, they knew of the
existence of the new starfish species, surely, another course of action would have been adopted.
This presents a case of a mistake of fact. The principle of “Mistake of Fact” per se is not what is
contemplated by the respondents, since it is primarily applied in Criminal Law to debunk the
mens rea of the criminal act. As a counterpart or in close-relation in civil law obligations, the
respondents resort to the application of the Good Faith Doctrine, a general principle of
International law recognized by civilized nations, therefore, a source of law under Article 38 of
the Statute of the International Court of Justice13.

Considering that both States are parties to the Convention on the Control of
Transboundary Movements of Hazardous Wastes and Their Disposal or also known as the Basel

12
United Nation Office of Legal Affairs. (n.d.). Retrieved from legal.un.org:
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
13
STATUTE OF THE INTERNATIONAL COURT OF JUSTICE. (n.d.). Retrieved from
https://www.icj-cij.org: https://www.icj-cij.org/en/statute
Convention, they are bound by the obligations stated in Article 4 of the same law 14. It can be
inferred that Vulpinia, through the initiative of Minister Fox and Dr. Detritus, had taken an
environmentally sound management of hazardous wastes or other wastes in exporting the 95
drums and the discharge of the remaining drums into the sea. Vulpina has been receptive in the
proposition of Leonia to recover the drums evident by the immediate response of sending
“Arianna” to Stella Maris. They had taken necessary steps to prevent pollution that may have
caused the further destruction of the Antarctic and the people assigned in the recovery mission.
Likewise, Vulpinia had been diligent in following protocols and consistent in communicating
with Leonia all findings on the remaining 5 drums and effects that may arise from them, which
later proved that the sea water indeed dissolved the substance and did not cause lasting damage
to the sea.

Although the drums contained highly corrosive and explosive substances, these were not
included in the list mentioned above as it does not result in long term damage or no damage at all
to the marine ecosystem. Furthermore before dumping them, the experts provided by Dr. Detritus
were better equipped with past successful experiments conducted by them in regard with the
substances. After the lapse of ten days all chemical and physical analyses of the waters in the
area showed that there were no traces of the chemical waste and that the waters had recovered all
their purity and quality. Thus, the dumping of these chemical substances did not defeat the
purpose of the convention in maintaining the cleanliness or natural state of the sea waters. had
been diligent in following protocols and consistent in communicating with Leonia all findings on
the remaining 5 drums and effects that may arise from them, which later proved that the sea
water indeed dissolved the substance and did not cause lasting damage to the sea.

IV. THE NEW DISCOVERED SPECIES OF ASTEROID ECHINODERMS (STARFISH)

WAS UNKNOWN TO DR. DETRITUS AND THE GOVERNMENT OF VULPINIA

A. The discovery by Prof. Handlin was not disclosed

The Antarctic Treaty of 1959 ensured that the use of Antarctica is only for peaceful
purposes only and continuance of international harmony. Under its terms specifically under
Article IV, Convention on the Control of Transboundary Movements of Hazardous Wastes and
14

Their Disposal
Article III paragraph 3, to promote international cooperation in scientific investigation in
Antarctica, as provided for in Article II of the present treaty, the Contracting Parties agree that,
to the greatest extent feasible and practicable, scientific observations and results from Antartica
shall be exchanged and made freely available15. This being said, the new discovery of Prof.
Handlin should have been made available to the public in order to harmonize the actions,
observations, explorations, experiments or tests conducted in Antarctica. Thus, if it was only
known to the team of Dr. Detritus that there was a new species living in the Stella Maris Ice
Shelf, they could have considered a new plan to dispose of the chemical substance. In addition,
the delay of information about the new species is conspicuous of a failure to co-operate pursuant
to Article 10 of the Basel Convention which provides that parties shall work side by side in
monitoring the effects of the management of hazardous wastes on human health and the
environment16; The lack of knowledge on their part was not considered negligence or
incompetence because they have followed a very safe protocol backed with successful results,
except for the part of the new species. In order for a successful international cooperation between
the two states, the study of Prof. Handlin should have been given to them beforehand. The State
of Vulpinia should not be made liable for the inadequacy of information given to them.

V. THE STATE OF LEONIA HAS NO LEGAL RIGHT TO CLAIM ANY DAMAGES

ARISING FROM THE MARINE RESEARCH CONDUCTED BY PROF. HANDLIN.

According to Artice 241 of United Nations Convention on the Law of the Sea
(UNCLOS), the non-recognition of marine scientific research activities as the legal basis for
claims. It provides that marine scientific research activities shall not constitute the legal basis for

Article III, paragraph. 3, Antarctica Treaty of 1959

15

Article X, Convention on the Control of Transboundary Movements of Hazardous Wastes and

16

Their Disposal
any claim to any part of the marine environment or its resources 17. The discovery of Prof.
Handlin of the new species of asteroid echinoderms (starfish) should not be raised as the basis of
the State of Leonia to recover damages from the Government of Vulpinia.

In UNCLOS, all states have the right to conduct and promote marine scientific research.
Such research is subject to the following principles18:

● It shall be conducted exclusively for peaceful purposes;

● It shall be conducted with appropriate scientific methods and means

compatible with this convention;

● Marine scientific research shall not unjustifiably interfere with other

legitimate uses of the sea compatible with this convention

● Marine scientific research shall be conducted in compliance with all

relevant regulations adopted in conformity with UNCLOS including those for
the protection and preservation of marine environment.

VI. THE WASTE MATTERS THAT WERE DISPOSED OF AT SEA WERE NOT
CATEGORIZED AS PROHIBITED WASTE OR OTHER MATTER AND SUCH
DISPOSAL WAS IN ACCORDANCE WITH THE PERMISSION OF THE OTHER
STATE UNDER THE CONVENTION ON THE PREVENTION OF MARINE
POLLUTION BY DUMPING OF WASTES AND OTHER MATTER OF 1972.

17
Article 241, United Nations Convention for the Law of the Sea of 1982
18
Article 240, United Nations Convention for the Law of the Sea of 1982
 A. The five drums which contained highly corrosive and explosive substances are
not prohibited substances
1. Only prohibited substances can be made liable.

The Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other
Matter of 1972, known as the London Convention, is one of the first international agreements for
the protection of the marine environment from human activities. The London Convention applies
to the deliberate disposal at sea of wastes or other matter from vessels, aircraft, platforms and
other man-made structures at sea, as well as to the deliberate disposal at sea of vessels, aircraft,
platforms or other man-made structures themselves 19. Article IV provides that contracting
parties shall prohibit the dumping of any wastes or other matter in whatever form or condition
except as otherwise specified such as20:

a) The dumping of the wastes or other matter listed in Annex I is prohibited

b) The dumping of wastes or other matter listed in Annex II requires a prior special
permit

c) The dumping of all other wastes or matter requires a prior general permit

Prohibited substances were listed down below Annex I and II of the said convention.
Among the prohibited substances are the following21:

Annex I

● Organohalogen compounds

● Mercury and mercury compounds

● Cadmium and cadmium compounds

19
Ocean Dumping: International Treaties, (2019). Retrieved 2020, from
https://www.epa.gov/ocean-dumping/ocean-dumping-international-treaties
20
Article IV, London Convention (1972)
21
Annexes I, II, London Convention (1972)
 ● Persistent plastics and other persistent synthetic materials, for example, netting and
ropes, which may float or may remain in suspension in the sea in such a manner as to
interfere materially with fishing, navigation or other legitimate uses of the sea.

● Crude oil, fuel oil, heavy diesel oil, and lubricating oils, hydraulic fluids, and any
mixtures containing any of these, taken on board for the purpose of dumping.

● High-level radio-active wastes or other high-level radio-active matter, defined on

public health, biological or other grounds, by the competent international body in this
field, at present the International Atomic Energy Agency, as unsuitable for dumping
at sea.

● Materials in whatever form (e.g. solids, liquids, semi-liquids, gases or in a living

state) produced for biological and chemical warfare.

● The preceding paragraphs of this Annex do not apply to substances which are rapidly
rendered harmless by physical, chemical or biological processes in the sea provided
they do not:

(i) make edible marine organisms unpalatable, or

(ii) endanger human health or that of domestic animals.

The consultative procedure provided for under Article XIV should be followed by a Party
if there is doubt about the harmlessness of the substance.

● This Annex does not apply to wastes or other materials (e.g. sewage sludges and
dredge spoils) containing the matters referred to in paragraphs 1-5 above as trace
contaminants. Such wastes shall be subject to the provisions of Annexes II and III as
appropriate.

Annex II

● The following substances and materials requiring special care are listed for the
purposes of Article VI(1)(a).

PRAYER FOR RELIEF

In light of the issues raised and the arguments presented by us, the counsels for the state of
Vulpinia, we humbly request that this Court to adjudge and declare:

The state of Leonia does not have legal standing to file a case against the state of Vulpinia for the
Stella Maris Ice Shelf is considered as “Terra Nullius” and it does not belong to any state.

II

The state of Leonia failed to observe the procedural guidelines provided under the Antarctic
Treaty of 1959 before a case may be filed.

III

The state of Leonia is not entitled to the payment of compensable damage since it participated
with the waste removal operation conducted by Dr. Detritus and his team.

IV

The waste disposal operation conducted by Dr. Detritus and his team is not considered illegal per
se under international law.

The recovery operation made by the State of Vulpinia which wiped out the new starfish species
is an environmental emergency justified under the Doctrine of State of Necessity.

Respectfully Submitted,

Counsels for the State of Vulpinia