THE TWENTY-FIFTH ANNUAL ENVIRONMENTAL MOOT COURT COMPETITION

QUESTION RELATING TO THE PROTECTION OF BATS AND INTERNATIONAL TRADE MEASURES

FEDERAL STATES OF ALDUCRA

(APPLICANT)

V. 

REPUBLIC OF RUNBETI

(RESPONDENT)

____________________________________

MEMORIAL FOR THE RESPONDENT

____________________________________

2020

TABLE OF CONTENTS

TABLE OF CONTENTS

LIST OF SOURCES

STATEMENT OF RELEVANT FACTS

SUMMARY OF ARGUMENTS

ARGUMENTS

SUBMISSIONS
LIST OF SOURCES 

Judicial Decisions

1.  INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC. v.

GREENPEACE SOUTHEAST ASIA (PHILIPPINES), GR NO 209271, July 26, 2016

2. Mosqueda v. Pilipino Banana Growers and Exporters [2016] G.R. No. 189185 (SC)

Treaties and Conventions

1. The Precautionary Principle: Protecting Public Health, The Environment and The Future of Our
Children. [pdf] United Kingdom: University Press Oxford, p.42. Available at:
<https://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf?ua=1> [Accessed
17 September 2020].

2. IUCN. 2007. GUIDELINES FOR APPLYING THE PRECAUTIONARY PRINCIPLE TO BIODIVERSITY

CONSERVATION AND NATURAL RESOURCE MANAGEMENT. [pdf] p.2. Available at:
<https://www.iucn.org/sites/dev/files/import/downloads/ln250507_ppguidelines.pdf>
[Accessed 17 September 2020

Books and Periodicals

1. Paz MC (2013) Precautionary Principle: Case Law in Colombia. J Civil Legal Sci 3: 108.
doi:10.4172/2169-0170.1000108

Online Sources

1. Free Law Dictionary. 2020. FREE Black's Legal Dictionary Online - Free Law Dictionary. [online]
Available at: <https://www.freelawdictionary.org/> [Accessed 18 September 2020. 

2. Federico Cheever and Celia I. Campbell-Mohn, Environmental Law, Principles of Environmental

Law, September 19, 2016, https://www.britannica.com/topic/environmental-law

STATEMENT OF RELEVANT FACTS

ARCHITERPO NEIGHBORS AND THE TRADE AGREEMENT

The Federal States of Alducra and the Republic of Runbeti are neighboring sovereign states,
both located on the continent of Architerpo in the Northern Hemisphere. Both states rely heavily on
agriculture with Alducra having an approximate land area of 1,100,000 km 2 and Runbeti at
approximately 1,300,000 km2.

To support and bolster their trade relations, Alducra and Runbeti, along with the other States of
Architerpo, entered into a regional trade agreement in 2000. The agreement formerly called the
Architerpo Regional Trade Agreement (ARTA) sought to further strengthen trade relations and
cooperation between the States, to ensure that the trade relations were conducted with the objective of
sustainable development to protect and preserve the environment. Also, any differences or disputes
regarding the agreement must be submitted to the International Court of Justice with the agreement of
both parties if they were unable to settle such differences or disputed through negotiations. 

THE VULNERABLE SPECIES OF BATS

Thirteen species of bats live in Architerpo, including Aldcura and Runbeti.  They are considered to be
ecologically important for they act as indicator species and provide benefits such as pollination, seed
dispersal, and insect control.

The royal noctule (Nyctalus royalis) and the Architerpan long-nosed bats (Leptonycteris yerbabuenae)
are listed as vulnerable on the International Union for Conservation of Nature’s (IUCN) Red List and

are listed in international treaties where both Alducra and Runbeti are parties which are the Convention
on the Conservation on International Trade in Endangered Species of Wild Fauna and Flora (CITES),

Convention of Migratory Species of Wild Animals (CMS)

and Conservation of Populations of European Bats (EUROBATS). Both the royal noctule and the
Architerpan long-nosed bats are protected under Alducra’s national laws. 

Alducra and Runbeti are producers and exporters of tapagium, an agave spirit that tastes similar to
tequila and is made in the same way as tequila. 

The Architerpan long-nosed bats (Leptonycteris yerbabuenae), play an important role in agave farms in
Alducra and Runbeti for these bats fed on and pollinated agaves. 

In January 2015, Alducra passed domestic legislation that required all farmers to use bat-safe farming
practices after a concern was raised on the impact of the growing demand for tapagium on the long-
nosed bats. 

RUNBETI’S WIND FARM PROJECT

In April 2015, to meet their commitments under the United Nations Framework Convention on
Climate Change (UNFCCC) and in anticipation of the Paris Agreement, Runbeti announced a new
program that would provide substantial government subsidies to approved alternative energy projects. 
One of the promising proposals received by Runbeti was a submission from Pinwheel Energy Co. (PECO)
for a large, multi-phase wind farm. I

t would consist of four construction phases in 2016, 2021, 2024, and 2026. The first phase would include
the construction of 150 2.0 MW wind turbines which will be built on 75  km2 of a large undeveloped
tract of land owned by PECO. The land is located along a portion of the border between Runbeti and
Alducra where a part of the land is a known migration route for the royal nocturne and the property also
includes several critical feeding and roosting areas and commuting routes for the royal nocturne. The
subsequent phases would be constructed on other sections on the same tract of land owned by PECO. 

In the second half of 2015, the first phase of the wind farm project was approved and was issued the
necessary permits after an extensive environmental impact assessment was conducted and reviewed by
Runbeti. The construction began in January 2016 and the first phase was completed and began
operating in December 2016. 

CHIROPETRA CRUSADERS

Before and during the construction of the first phase of the project, the Chiropetra Crusaders, a regional
bat conservation group, expressed their concerns to Runbeti and PECO about the potential negative
impacts of the wind farm project on bats due to the proposed location for the wind farm project.

Although their request for mitigation measures were denied, Runbeti and PECO agreed to let Chirpetra
Crusader monitor the area after the completion of the construction to determine the wind farm’s impact
on the bats. 

In the surveys they conducted in 2017 and 2018, they found several dead bat species including the royal
nocturne. These results were then reported to PECO, Runbeti and Alducra. 

REQUEST TO SHUTDOWN

Following the report received from the Chirpetra Crusaders, Alducra forwarded a diplomatic note to
Runbeti stressing that the wind farm project 

ALDUCRA’S VIOLATION OF THE ARTA

In November 2019, Alducra passed a statute that imposed tax on all sales of tapagium produced from
farms that do not comply with bat-safe farming requirements and that all tapagium products imported
and/or sold must have a specific label indicating whether the tapagium was “bat safe” or was “not bat
safe.” 

In a diplomatic note sent by Runbeti to Alducra on 13 December 2019, they stated that provisions of the
statute were clearly favorable and advantageous to Alducra’s domestic product and that it was a blatant
violation of the ARTA. They further stated that the farmers may lose a significant income due as a direct
result of its tax and labeling requirements and that Alducra was wrong to impose its own environmental
policy agenda on other countries. 
Both parties entered into a Special Agreement to institute proceedings in the International Court of
Justice (ICJ) after the countries failed to resolve the issue. 

SUMMARY OF ARGUMENTS

i. [Summary on Obli to coop]

ii. [Summary on duty to conserve]

iii. [Duty as regards in-situ conservation]

iv. That Runbeti did not violate the precautionary principle because the elements for its application
did not apply; and even if it did, Alducra cannot use the precautionary principle to shutdown the
wind farm project

ARGUMENTS

I. THE CREATION OF THE WIND FARM PROJECT IS CONSISTENT WITH THE CONVENTION ON
BIODIVERSITY WITH RESPECT TO:

A. Obligation to cooperate

B. Duty to conserve

1.The Government of Runbeti complied with its duty to conserve under the Convention of Biological
Diversity and has not violated conventional or customary international law.

i.There was an inclusion of biodiversity when the Government of Runbeti conducted an extensive
environmental impact assessment (EIA) for the first phase of its wind farm project. Impact assessment is
such a process, which can be used to ensure that necessary measures needed to protect biodiversity
and its sustainable use are applied in the process of development planning. The CBD’s main objectives
are to conserve biological diversity while at the same time recognizing “that economic and social
development and poverty eradication are the first and overriding priorities of developing countries. The
Government of Runbeti, as a developing country, opted to pursue alternative energy projects without
disregarding biodiversity.
 

ii.The Government of Runbeti introduced appropriate arrangements to ensure that the environmental
consequences of its project that are likely to have significant adverse impacts on biological diversity are
duly taken into account. Prior to the approval of the wind farm project, the Government of Runbeti
reviewed the environmental impact assessment it conducted before issuing the necessary permits for
the first phase. The Government of Runbeti is aware that the location of the project covers a portion of
the migration route for the royal noctule and so it proceeded with extreme caution.  

iii. There was reciprocity of information and consultation on activities between the Government of
Runbeti and Alducra regarding the wind farm project through the active participation of the Chiroptera
Crusaders. In fact, the granting of the Government of Runbeti and PECO to let the Chiroptera Crusaders
monitor the area after the construction was completed to determine the wind farm’s impact on the bats
was evidence of its commitment to uphold its duty to conserve it swore to observe under the
Convention of Biodiversity.

iii. Reports submitted by the Chiroptera Crusaders is not conclusive as to what caused the death of
several royal noctules near the wind turbines. The diplomatic note of the Federal  States of Alducra
forwarded to the Government of Runbeti contained an admission that the former had no knowledge
how the construction process may have impacted the bats. In its reply to the diplomatic note, the
Government of Runbeti is also not convinced that it had caused transboundary harm to the Federal
States of Alducra. It is therefore premature to conclude that the wind farm project is the direct cause of
the death of royal noctules. Suffice to say, in case of an imminent grave or danger or damage, originating
under the jurisdiction of the Government of Runbeti to the biological diversity within the area of
jurisdiction of the Federal States of Alducra, the Government of Runbeti  is bound under Art.14 of the 
Convention of Biodiversity, and willing, to notify the Federal States of Alducra, an undertaking which the
Chiroptera Crusader assumed when it apprised both governments regarding the results of the surveys it
made.

Place holder

C. Duty as regards in-situ conversation

Place holder

II. RUNBETI HAS ACTED IN ACCORDANCE WITH THE PRECAUTIONARY PRINCIPLE 

The Principle
The unwillingness to cooperate in the enacted statute of The Government of Alducra that the
Government of Runbeti introducing bat-safe farming practices for tapagium production in Runbeti is in
accordance with the precautionary principle of environmental law. 

The precautionary principle requires that, if there is a strong suspicion that a certain activity may have
environmentally harmful consequences, it is better to control that activity now rather than to wait for
incontrovertible scientific evidence.

In the case of INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS, INC. v.
GREENPEACE SOUTHEAST ASIA (PHILIPPINES), the precautionary principle is reiterated as follows:

In a Decision dated December 8, 2015, the Court denied the petitions and accordingly, affinned with
modification the ruling of the CA.46 Agreeing with the CA, the Court held that the precautionary
principle applies in this case since the risk of harm from the field trials of Bt talong remains uncertain
and there exists a possibility of serious and irreversible harm. The Court observed that eggplants are a
staple vegetable in the country that is mostly grown by small-scale farmers who are poor and
marginalized; thus, given the country's rich biodiversity, the consequences of contamination and genetic
pollution would be disastrous and irreversible.

Unlike the Government of Alducra, the Government of Runbeti has a developing economy and its
farmers may not be able to afford compliance with Alducra’s legislation and may lose significant income
as a direct result. Sec 1, Rule 20 of the Rules of Procedure for Environmental Cases provides:

Section 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link
between human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it. The constitutional right of the people to a balanced and healthful ecology
shall be given the benefit of the doubt.

In the present case, the growing demand for tapagium has caused farmers to use practices that are
detrimental to bats and the environment and thus are ultimately detrimental to the farmers themselves
as there have been no scientific records to show the certainty of these practices.

Limitations in scientific tools and in the ability to identify or to quantify causal relationships are
occasionally misinterpreted as evidence of safety. Thus, when proposed or ongoing technologies or
activities entail potential long-term, unknown adverse health effects, the need for more accurate
scientific information has often been used as a reason for inaction. Further, government agencies
frequently have to wait until sufficient evidence of harm is established beyond a reasonable doubt
before they can act to prevent harm. This constraint can result in public health and environmental
policies based on reaction, involving remedial action after a hazard has caused adverse effects, rather
than preventive, precautionary action. The increasing complexity and uncertainty of risks and the
frequent lack of information on risks as well as the limits of science and policy structures to adequately
address them require the development of tools to further support decision making when health and
welfare might be affected.

Absent of showing any guarantee from the government of alducra to the safety of the introduced
practices to the safety of the environment, the bats and the farmers render the refusal of the
government reasonable. Given the diversity of the Government of Runbeti, it is only essential to protect
not only the bats but the interest of the farmers as well. 

Stated briefly, the precautionary principle holds that when “scientific information is insufficient,
inconclusive or uncertain” with regard to an action and its environmental consequences, actors must err
on the side of caution and take steps to prevent the environmental harm from happening. Alducra’s
contention that Runbeti has violated this principle presupposes the materialization of a variety of
conditions necessary for the application of the principle, most of which are non-existent in the case at
bar. Assuming arguendo that the precautionary principle even applies, Runbeti’s continued pursuance of
the wind farm project cannot be regarded as a violation when what the principle merely requires is not
the halting of the project but the adoption of measures to mitigate the uncertain environmental
aftermath, which Runbeti has undoubtedly complied with.

 The element of uncertainty

For the concerned principle to apply three (3) elements must concur. The uncertainty of the
environmental damage, the threat of environmental damage, and that the threat is serious and
irreversible. First, the requirement of a lack of scientific certainty comes with it the pre-condition that
scientific study has been done in the first place, to which uncertainty arises from. As aptly explained in
the Philippine case of Mosqueda v. Pilipino Banana Growers

“We should not apply the precautionary approach in sustaining the ban against aerial spraying if little or
nothing is known of the exact or potential dangers that aerial spraying may bring to the health of the
residents within and near the plantations and to the integrity and balance of the environment. It is
dangerous to quickly presume that the effects of aerial spraying would be adverse even in the absence
of evidence”

            A study conducted on the cases of Columbia has also concluded that the element of uncertainty is
met when an act “of which there is no certainty, but there is some scientific evidence which does not
make it possible to rule out the protection”. Hence the importance of scientific basis in the claim, a
condition Alducra has sorely failed to comply with. In its stead, they base their allegations on the
Chiroptera Crusader’s blind assertion that wind farms negatively affect the bat population, and a mere
report that dead bats were found in the vicinity of the wind farms.

            The report itself cannot be considered scientific evidence; it involves no other application of the
scientific process besides the initial observation. Neither has the report considered that the likely reason
why dead bats were found is precisely because it is a migratory path of which some die of natural causes
along the way. They do not compare the number of dead bats in their report to that before the wind
project and the fact that bat corpses increased in 2018 compared to 2017 when no additional
construction of wind turbines had been made is glaring proof that some variable besides the wind
project is the likely culprit, a variable Alducra would have known about had it actually conducted a
proper scientific study.

 The element of potential harm

            Second, the potential for harm. That a hazard has been identified or is at least plausible in
relation to the activity. Although the principle provides that proof of harm is not necessary, indication of
its existence is still required for the principle to apply. Black’s legal dictionary defines indication as a fact,
sign, or token pointing to some inference or conclusion. Hence, not only must a fact of detrimental
environmental damage exist, it must also point with inference and reasoning towards the activity
contemplated in an action.

            Although the report finding a number of dead bats is indeed a fact or token, it can in no way be
considered to be pointing towards the wind farm project. In other words, no cause and effect can be
established when all Alducra has to offer is the mere allegation that the wind farms are responsible. In
contrast Runbeti has conducted an EIA even before the implementation of the project that established
the safety of the activity, only this time with scientific basis as per guidelines for an EIA.

Furthermore, the potential harm resulting from certain activities should always be judged in view of the
potential benefits they offer. In essence what Alducra asks Runbeti is that the latter, who only has a
developing economy and has even then invested funds to secure its obligation in the Paris agreement,
to halt this entire endeavor solely on the basis of an allegation that it affects the bat population; even
though an EIA that concludes otherwise. To grant Alducra’s prayer is to go against the principles of
equity and justice.

Runbeti is not obligated under the Precautionary principle to shut down the wind farm

            The government of Alducra, through a letter by its ambassador, cites the precautionary principle
as a basis in its prayer for the shutdown of the wind farms. Its use of the principle as basis is invalid, the
rule only requires that preventive measures be taken if at all the precautionary principle even applies.[9]
Measures which the Republic of Runbeti have undoubtedly taken.

    Not only has it conducted the appropriate EIA before project implementation, it has also placed upon
itself obligations in international law to safeguard the environment under the CBD, Eurobat convention,
etc… A feat no state in the right mind would subject itself to, if it had no intention of adopting
appropriate measures if the situation calls for, which in this case calls for none.

          Runbeti’s position of not adopting bat measures despite the international obligations it willingly
imposed on itself demonstrates the absolute lack of need of adopting them in the first place. Neither
Runbeti’s EIA, Alducra, or the Chiropetra Crusaders have data to hold to the contrary.
SUBMISSIONS

The Republic of Runbeti respectfully requests the court to adjudge and declare that:

1. The Republic of Runbeti Did not violate the Convention on Biodiversity

2. It acted in accordance with the Precautionary Principle

Respectfully Submitted

Agents of the Applicant

Alvizo, Pierre Judd B.

Fernandez, Klmn Moises

Floren, Jensen

Gicum, Ian Mark

Kin, Ok

Llego, Paolo

Mante, Katrina Isabela