IN THE INTERNATIONAL COURT OF JUSTICE

LA COUR INTERNATIONALE DE JUSTICE

Peace Palace, The Hague, Netherlands

2018 GENERAL LIST NO. 237

QUESTIONS RELATING TO USE OF SARGASSO SEA AND THE

PROTECTION OF EELS

THE FEDERAL STATES OF FSA / ÉTATS FÉDÉRAUX DE FSA

APPLICANT / DEMANDEUR

versus

THE REPUBLIC OF ROR / ENTRE LA RÉPUBLIQUE D’ ROR

RESPONDENT / DÉFENDEUR

TWENTY-THIRD ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

MOOT COURT COMPETITION (2018-2019)

MEMORIAL ON BEHALF OF THE APPLICANT

COMMÉMORATIF AU NOM DU DEMANDEUR

1
 TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ 2

List of Abbreviations ...................................................................................................................... 5

Statement of Jurisdiction............................................................................................................... 10

STATEMENT OF FACTS ........................................................................................................... 11

Question raised.............................................................................................................................. 13

Arguments Advanced.................................................................................................................... 14

I. THE COURT HAS JURISDICTION OVER THE APPLICANT’S CLAIM .................. 14

A. The ICJ has KOMPETENZ-KOMPETENZ to determine the jurisdiction .................. 14

B. There is an existence of a dispute within the CBD, UNFCCC and Paris Agreement and

the Court has jurisdiction under the same. ............................................................................ 15

i. There exists a dispute between the parties. ............................................................... 15

C. The ICJ has jurisdiction under the relevant conventions. ............................................. 16

i. The ICJ has jurisdiction under the CBD. .................................................................. 16

ii. The ICJ has jurisdiction under the UNFCCC and Paris Agreement. ........................ 17

D. The CMS will not prevail over CBD, UNFCCC and Paris Agreement as being a Lex

Specialis ................................................................................................................................ 17

i. Absence of conflict between CBD and CMS. .......................................................... 18

ii. Co-application of both CBD and CMS. .................................................................... 18

2
 E. In Any event, the ICJ has jurisdiction under the Customary International law ............ 20

i. The dispute relates to Customary Law of the Sea..................................................... 20

a. Dispute under Customary Law of the Sea ........................................................... 20

b. Invocation of Jurisdiction .................................................................................... 21

ii. The dispute relates to the violation of the Precautionary Principle and the

Transboundary harm. ........................................................................................................ 22

F. FSA’s claim is not barred by the Clean Hands Doctrine .............................................. 23

II. THE ACT OF SEA CORPORATION IS ATTRIBUTABLE TO ROR. ......................... 25

A. SEA Corporation is exercising elements of governmental authority............................ 25

B. Conduct of SEA Corporation is controlled or directed by state ................................... 26

C. Conduct of SEA Corporation is acknowledged and adopted by the state .................... 28

D. Flag state jurisdiction .................................................................................................... 30

III. THE ACT OF SEA CORPORATION HAS LED TO VIOLATION OF TREATY AND

CUSTOMARY OBLIGATIONS.............................................................................................. 32

A. ROR violated the Law of Sustainable Development .................................................... 32

i. ROR’s development process harms marine environment. ........................................ 32

ii. ROR failed to formulate national plans and programmes. ....................................... 33

iii. Environmental law and law of development are not alternatives. ............................ 33

B. Violation of Customary International Law ................................................................... 34

i. The SEA Corporation violated the precautionary principle. .................................... 34

3
 a. ROR’s action may lead to extinction of endangered species. ............................. 35

b. Failure of ROR to adhere to Duty of Cooperation. ............................................. 35

ii. Violation of Transboundary Harm ............................................................................ 36

a. ROR failed the duty to protect interest of neighbouring countries. .................... 37

b. Duty of due diligence has been violated by ROR. .............................................. 37

C. Breach of one treaty in order to comply with another is contrary to Pacta Sunt Servanda

38

D. ROR violated its treaty obligations. .............................................................................. 39

i. ROR violated the duty of conservation under CBD ................................................. 39

ii. ROR violated its obligation under UNCLOS. .......................................................... 40

a. ROR failed to protect and preserve marine environment ......................................... 40

b. ROR constituted abuse of right. .......................................................................... 41

c. ROR breached its Erga Omnes Obligation ......................................................... 41

iii. ROR violated its obligation under UNFCCC. .......................................................... 42

E. The OIF activity does not qualify a state of necessity. ................................................. 43

i. No essential interest involved. .................................................................................. 43

ii. There is no grave and eminent peril. ......................................................................... 43

iii. Activity not the ‘only way’ to mitigate the peril....................................................... 44

4
 LIST OF ABBREVIATIONS

¶ PARAGRAPH.

¶¶ PARAGRAPHS

AJIL AMERICAN JOURNAL OF INTERNATIONAL LAW

Art ARTICLE

ASIL AMERICAN SOCIETY OF INTERNATIONAL LAW

BYBIL BRITISH YEARBOOK OF INTERNATIONAL LAW

CBD CONVENTION ON BIOLOGICAL DIVERSITY

CONVENTION TO THE MIGRATORY SPECIES OF

CMS
WILD ANIMALS

CONF. CONFERENCE

Corr. CORRESPONDENCE

5
 Doc. DOCUMENT

Ed. EDITIONS

Eds. EDITORS

EIA ENVIRONMENTAL IMPACT ASSESSMENT

EJIL EUROPEAN JOURNAL OF INTERNATIONAL LAW

G.A.O.R GENERAL ASSEMBLY OFFICIAL RECORDS

Geo. Int’l Envtl. L. Rev. GEORGETOWN INTERNATIONAL LAW REVIEW

GEORGE WASHINGTON JOURNAL OF

GWJILE
INTERNATIONAL LAW

Harv. L. Rev. HARVARD LAW REVIEW

ICJ INTERNATIONAL COURT OF JUSTICE

INTERNATIONAL AND COMPARATIVE LAW

ICLQ
QUARTERLY

6
 Id IBID

IJA INTERNATIONAL JUDICIAL ACADEMY

ILA INTERNATIONAL LAW ASSOCIATION

ILC INTERNATIONAL LAW COMMISSION

IMO INTERNATIONAL MARITIME ORGANIZATION

INDIANA JOURNAL OF GLOBAL LEGAL

Ind.J.Global Leg.Stud.
STUDIES

ISBN INTERNATIONAL STANDARD BOOK NUMBER

ITLOS INTERNATIONAL TRIBUNAL FOR LAWS OF SEA

INTERNATIONAL UNION FOR CONSERVATION

IUCN
OF NATURE

L.L.R LLOYD’S LAW REPORTS

Mich. L. Rev. MICHIGAN LAW REVIEW

7
 n. NOTE (FOOT NOTE NO.)

No. NUMBER

ORGANIZATION FOR ECONOMIC CO-

OECD
OPERATION AND DEVELOPMENT

p. PAGE

PERMANENT COURT OF INTERNATIONAL

PCIJ
JUSTICE

pp. PAGES.

REPORTS OF INTERNATIONAL ARBITRAL

R.I.A.A
AWARDS.

Sess. SESSION

UN UNITED NATIONS

UNITED NATIONS CONVENTION ON THE LAWS

UNCLOS
OF THE SEA

8
 UNITED NATIONS FRAMEWORK CONVENTION
UNFCCC
ON CLIMATE CHANGE

UNITED NATIONS ENVIRONMENT

UNEP
PROGRAMME

UNGA UNITED NATIONS GENERAL ASSEMBLY

UNTS UNITED NATIONS TREATY SERIES

VANDERBILT JOURNAL OF TRANSNATIONAL

Vand. J. Transnat’l L international law
LAW

Vol. VOLUME

WWF WORLD WILDLIFE FOUNDATION

YEARBOOK, INTERNATIONAL LAW

Y.B.I.L.C
COMMISSION

9
 STATEMENT OF JURISDICTION

The Federal states of Aeolia has the honor to submit the following Dispute to this Court by

a Written Application Instituting Proceedings for Resolution, and transmitted a copy thereof

to the registrar of the International Court of Justice pursuant to Article 40(1) of the Statute

of the Court. The Jurisdiction of this court pursuant to Article 36(6) of the Statute of the

court will be decided by the court itself, to be binding upon both parties as per their

declaration of consent to the Court’s Jurisdiction under Article 27 of the Convention on

Biological Diversity, Article 24 of United Nations Framework Convention on Climate

Change and Article 14 of Paris Agreement. The jurisdiction of the Court is thus rendered

Compulsory and invokes Article 36(2) of the Statute of the Court, in the manner specified

therein.

10
 STATEMENT OF FACTS

Background

1. The Federal States of FSA (hereinafter referred as ‘FSA’) and The Republic of ROR

(hereinafter referred as ‘ROR’) are neighboring coastal sovereign states located on Unagi in North

Atlantic Ocean near the Sargasso Sea. Both countries’ coasts are approx. 250 nautical miles from

the Sargasso Sea. The European eel (Anguilla Anguilla) is a facultatively catadromous migratory

species that is listed as Critically Endangered in the IUCN Red List of Threatened Species. They

are found in a variety of habitats in FSA and ROR. The eels migrate to Sargasso Sea to spawn, and

the leptocephali (larvae) migrate across the Atlantic Ocean to coastal waters and eventually travel

to inland waters. The species is particularly important to FSA and its citizens as they feature

prominently in FSA’s culture, religion, and history. (¶¶ 1-4)

International Obligation

2. FSA and ROR are UN members and States Parties to the Statute of the ICJ. Both States

ratified the CBD acknowledging the jurisdiction of the ICJ; UNFCCC; and PARIS AGREEMENT

recognizing the jurisdiction of the ICJ. The parties ratified the UNCLOS and FSA consented to

ICJ’s jurisdiction and ROR consented to ITLOS jurisdiction. Both states are parties to the Vienna

Convention on Law of Treaties; are parties to CMS and attended with full participation to the

Stockholm Declaration, Rio Declaration, 2002 World Summit on Sustainable Development, and

2012 Rio Conference at Rio de Janeiro. Both the parties are signatories to Hamilton Declaration.

(¶¶ 5-12)

11
Harvesting of Sargassum

3. SEA Corporation a privately-owned company of ROR which launched its latest biofuels

initiatives and began harvesting Sargassum from the Sargasso Sea to use for biofuels production

through its vessel, the Columbus which sailed under the flag of ROR. The SEA Corporation

received a subsidy for the Sargassum initiative from the Govt. of ROR. The Govt. also issues a

press release and a report discussing the progress and success of country’s biofuels program. (¶¶

13-17)

Diplomatic Notes

4. FSA sent a diplomatic note to ROR asking them to stop the Sargassum initiative as

Sargasso Sea is a unique and important ecosystem that plays an integral role in the life cycle of

numerous species many of which are threatened or endangered, especially eels which spawns in

the Sargasso Sea and is of great importance to FSA. Harvesting Sargassum will negatively impact

the ecosystem and will have devastating effects on eels whose population is already in serious

decline. The ROR refused to stop the Sargassum initiatives as they considered that removing

Sargassum will not have any harm on the ecosystem of Sargasso Sea. (¶¶ 18-23)

Dispute

5. For next several months FSA and ROR engaged in negotiations, followed by mediation,

but both of these methods failed to resolve the dispute. After more than two years of fruitless

negotiation and mediation, FSA requested that ROR agree to submit the dispute to the ICJ but

ROR refused, leading to the filing of this application by FSA. The SEA corporation has continued

to harvest sargassum in the Sargasso Sea till date. (¶¶ 24-28)

12
 QUESTION RAISED

The questions presented before the court for a resolution thereof, are: -

I.

WHETHER THE COURT HAS JURISDICTION OVER THE APPLICANT’S CLAIMS.

II.

WHETHER THE ACT OF SEA CORPORATION IS ATTRIBUTABLE TO ROR.

III.

WHETHER THE ACT OF SEA CORPORATION HAS LED TO VIOLATION OF

TREATY AND CUSTOMARY OBLIGATIONS.

13
 ARGUMENTS ADVANCED

I. THE COURT HAS JURISDICTION OVER THE APPLICANT’S CLAIM.

A. THE ICJ HAS KOMPETENZ-KOMPETENZ TO DETERMINE THE JURISDICTION.

Under the principle of kompetenz-kompetenz, ICJ can determine its own jurisdiction should any

dispute arise on the matter.1 ICJ has consistently exercised this power before determining the

merits of the case.2 Thus, the ICJ can exercise its jurisdiction over the dispute upon finding that

the arguments in favor thereof are preponderant.3

Applicant in this case has relied upon the court to determine its jurisdiction in positive based on

the merits of case.

1
ANDREAS ZIMMERMANN, ET AL., STATUTE OF THE INTERNATIONAL COURT OF JUSTICE: A

Commentary, 649, ¶ 109 (2012); Fisheries (Spain v. Can.) 1998 I.C.J. ¶ 37-38; Nuclear Tests (N.Z. v. Fr.),

Admissibility, 1974 I.C.J. 457, ¶ 23.

2
Legality of Use of Force (Serb. and Montenegro v. U. K.), Preliminary Objections, 2004 I.C.J. 1307, ¶ 33; See also

Corfu Channel (U.K. v. Alb.), Preliminary Objection, 1948 I.C.J. 15; Ambatielos (Greece v. U.K.) Preliminary

Objection, 1952 I.C.J. 28; Nottebohm (Liech. v. Guat.), Preliminary Objection (Second phase), 1955 I.C.J. 4;

Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at

Lockerbie (Libya v. U.S.), Preliminary Objections, 1998 I.C.J. 115, ¶ 16.

3
Fisheries (Spain v. Can.), 1998 I.C.J. ¶ 38, citing Border and Transborder Armed Actions, 1988 I.C.J. at 76; see also

Factory at Chorzów (Ger. v. Pol.), Jurisdiction, 1927 P.C.I.J. (Ser. A). 9, ¶ 32.

14
 B. THERE IS AN EXISTENCE OF A DISPUTE WITHIN THE CBD, UNFCCC AND PARIS

AGREEMENT AND THE COURT HAS JURISDICTION UNDER THE SAME.

i. There exists a dispute between the parties.

The ICJ defined “dispute” as “a situation in which the two sides held clearly opposite views

concerning the question of the performance or non-performance of certain treaty obligations.”4

The existence of the dispute is the primary condition for the Court to exercise its jurisdiction and

judicial function.5

For a dispute to exist, it must be shown that negotiations have failed.6 Further, the Respondent

must be ‘aware’ of the existence of the dispute, and that the dispute must exist at the time of the

submission of the application. However, in the case of Nicaragua vs Columbia the court did not

regard awareness as a requirement for the determination of the existence of a dispute, as it was not

mentioned in the general part of the judgement dedicated to the notion of dispute.7

4
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, 1950 ICJ Rep 65, 74 (Mar.

30).

5
Nuclear Tests Case (Australia v France, New Zealand v France), Judgment, 1974 ICJ Rep 253, ¶55 (Dec. 20).

6
Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, 2012 ICJ GL No. 144,

¶58 (Jul. 20).

15
The negotiations between the two Governments concerning the harvesting of Sargassum in the

Sargasso Sea had, by February 2018, in the words of the Court in the Right of Passage8 case,

“reached a deadlock.” The diplomatic exchanges between the Applicant and the Respondent

clearly indicate that the opposing views of the parties were related to the interpretation and

application of the CBD, for conservation of unique biodiversity of Sargasso Sea; UNFCCC and

the Paris Agreement, in the context of the way taken by ROR to fulfill its NDC Commitments.

C. THE ICJ HAS JURISDICTION UNDER THE RELEVANT CONVENTIONS.

i. The ICJ has jurisdiction under the CBD.

FSA and ROR are both parties to the CBD.9 The Applicant submits that the Court has jurisdiction

over this dispute in accordance with Article 27 of the CBD. Both parties declared in writing that

they would submit disputes concerning the interpretation or application of CBD to the ICJ.10

The dispute requires application of ROR’s duty to ensure that activities within its jurisdiction or

control do not cause damage to the environment of other States or of areas beyond the limits of

national jurisdiction, undertake in-situ conservation, and minimize adverse impacts.

8
Right of Passage over Indian Territory, (Portugal v India), Judgment (Merits), 1957 ICJ Reports, 125, 149 (Nov. 26).

9
RECORD 7.

10
RECORD 7.

16
 ii. The ICJ has jurisdiction under the UNFCCC and Paris Agreement.

Both parties declared in writing that they will submit disputes arising from interpretation or

application of UNFCCC to the ICJ.11 The provisions of Article 14 of UNFCCC on dispute

settlement also apply mutatis mutandis to Paris Agreement;12 Thus, ICJ has jurisdiction under

Agreement.

D. THE CMS WILL NOT PREVAIL OVER CBD, UNFCCC AND PARIS AGREEMENT AS BEING

A LEX SPECIALIS.

It is the contention of the Respondent that since the Applicant’s claims is premised on alleged

harms to the European Eel, consequently the dispute will arise under the CMS which will act as

lex specialis, and CMS does not confer jurisdiction on ICJ for settlement of disputes.

The Applicant does not dispute the lex specialis nature of CMS with regard the protection and

conservation of the European Eels. However, we submit that the CMS, although being a lex

specialis will not prevail over CBD, UNFCCC and Paris Agreement in the present case.

11
RECORD 10.

12
The Paris Agreement, Art. 24, Dec. 12 2015, UNFCCC/CP/2015/L.9/Rev.1.

17
 i. Absence of conflict between CBD and CMS.

The principle of lex specialis was understood as a conflict-resolving tool.13 In Neumeister case,

the ECHR refused to hold Article 5(5) of the Convention as lex specialis in regard to Article 50

because of the view that lex specialis must involve a conflict.14 In Indonesia – Certain Measures

Affecting the Automobile Industry, the Panel explained that for a conflict to exist, it must be

between the same parties, deal with the same subject-matter and the provisions must be mutually

exclusive.15

There is no conflict between the provisions of CBD and CMS. Both of them provides for the

conservation and protection of eels and both of them do not require the harm to occur to initiate

the proceedings.

ii. Co-application of both CBD and CMS.

When two States have concluded two treaties on the same subject-matter, but have said nothing of

their mutual relationship, it is usual to first try to read them as compatible (the principle of

13
EMMERICH DE VATTEL, The Law Of Nations; Principles Of The Law Of Nature Applied To The Conduct And

Affairs Of Nations And Sovereigns, Ch. XVII, pp. 311, 316 (1793).

14
Neumeister v. Austria, Judgment, 1974 ECHR Series A, p. 13, ¶30 (May 7).

15
Indonesia - Certain Measures Affecting the Automobile Industry, 1998 WTO, WT/DS54/, WT/DS55/R,

WT/DS59/R, WT/DS64/R, ¶14-¶28 (Jul. 2).

18
harmonization). This may often be undertaken by a simple examination of party intent, drawn from

the various available readings of the treaty text.16

In Southern bluefish tuna17 case, the CCSBT was both a lex specialis and a lex posterior.

Consequently, Tribunal found that it would have prima facie jurisdiction over the dispute. For the

foregoing reason, the Tribunal indicated provisional measures against Japan.

In present case, the negotiations were not explicitly held under the provisions of the CMS.

Furthermore, CMS is not an implementing Convention with CBD being a framework convention. It is

pertinent to note that CMS came into force before CBD.

The provisions of CBD and CMS are not mutually exclusive. The Applicant submits that there is

indeed an overlapping of subject matter, however it cannot be concluded that the provisions of the

treaties appear to be in conflict with each other nor an intention behind the provision to exclude

the other can be discerned. There is a co-application of CBD, CMS, UNFCCC and Paris

Agreement in the present dispute.

16
http://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf

17

19
 E. IN ANY EVENT, THE ICJ HAS JURISDICTION UNDER THE CUSTOMARY INTERNATIONAL

LAW.

i. The dispute relates to Customary Law of the Sea.

The Applicant did not raise violation of customary international law as a basis for jurisdiction in

its Application to the court.18 However, in Nicaragua v. USA,19 the final jurisdictional issue related

to the 1956 FCN Treaty was relied on in the Nicaraguan memorial although it had not been referred

to in the application.

a. Dispute under Customary Law of the Sea.

The ICJ has made use of its dominant position in the international legal environment on multiple

occasions to declare sections of UNCLOS to be customary international law and therefore binding

on signatories.20 Obligations for the protection of the marine environment embodied in the LOSC

have become part of customary law.”21 Furthermore, the ICJ has stated that the “general obligation

of States to ensure that activities under their jurisdiction and control respect the environment or

18
Record 8.

19
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgement, 1986 ICJ

14 (Jun. 27).

20
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, 2012 I.C.J. Rep. (Nov. 19).

21
YOSHIFUMI TANAKA, The International Law Of The Sea, 222, 224 (2nd ed. 2015).

20
other States or of areas beyond national control is now part of the corpus of international law

relating to the environment.”22

FSA’s claim that SEA Corporation’s project harmed the marine environment is reasonably

connected23 to Art.192 of UNCLOS which requires States to protect and preserve the marine

environment.24 This obligation contains no qualification25 and has attained the status of CIL.26

Moreover, the Icelandic Fisheries Jurisdiction case, as later followed by the Estai case, recognized

all States’ erga omnes obligation to conserve high seas living resources.27

b. Invocation of Jurisdiction.

For invoking the jurisdiction of the Court under customary international law, the Applicant

requests the Court to make a finding in Nicaragua vs USA (Jurisdiction):

“The Court cannot dismiss the claims of Nicaragua under principles of customary and general

international law; simply because such principles have been enshrined in the texts of the

conventions relied upon by Nicaragua. The fact that the abovementioned principles, recognized

22
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 241–242, ¶29 (Jul. 8).

23
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgment (Jurisdiction

and Admissibility), 1984 ICJ Rep. 392 (Nov. 26).

24
YOSHIFUMI TANAKA, The International Law Of The Sea, 276 (2nd ed. 2015).

25
Ibid.

26
M.H. NORDQUIST, United Nations Convention on The Law of the Sea: A Commentary, ¶192 (1991).

27
Yasuhiro Shigeta, Obligations to Protect the Environment in the ICJ's Practice: To What Extent Erga Omnes, 55

Jap. Y.B. Int'l L. 205 (2012).

21
as such, have been codified or embodied in multilateral conventions does not mean that they cease

to exist and to apply as principles of customary law.”28

Thus, the non-applicability of CBD, UNFCCC and Paris Agreement has no further impact on the

sources of international law which Article 38 of the Statute requires the Court to apply. Hence, even if

this Court is of the opinion that it does not have jurisdiction under any of the relevant treaties, or CMS

being the lex specialis will prevail over the other treaties, we submit that the Court still has jurisdiction

over this case as there exists a dispute between both parties under the Customary International Law.

ii. The dispute relates to the violation of the Precautionary Principle and the

Transboundary harm.

The present dispute also relates to the violation of the precautionary principle and the trans-

boundary harm.29 Under customary international law, notification of claims is a precondition to

the existence of a dispute.30 The diplomatic note exchange between the Applicant and the

Respondent indicates that the claim was made by the Applicant regarding the alleged violation of

28
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Judgement (Jurisdiction

and Admissibility), 1984 ICJ Rep. ¶73 (Nov. 26).

29
Record p. 8.

30
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament

(Marshall Islands v United Kingdom, Marshall Islands v India, Marshall Islands v Pakistan), Preliminary Objections,

2016 ICJ, ¶27 (Oct. 5).

22
principles of customary international law.31 Therefore, there exists a dispute between the parties

under CIL.

F. FSA’S CLAIM IS NOT BARRED BY THE CLEAN HANDS DOCTRINE.

Claimant's involvement in illegal activities may bar his claim, thus the clean-hands doctrine can

be invoked as basis for rejecting a claim.32 Accordingly, Revel may argue that FSA’s hydroelectric

projects results in FSA having “dirty hands”. However, said argument must be dismissed. The

‘clean hands’ doctrine has never been upheld by this Court, even though it had various

opportunities to do so.33 The doctrine succeeds only where the breach by the victim was the sole

cause of her damage, that is, where the cause-and-effect relationship between the damage and the

31
Record p. 8.

32
Eastern Greenland Case (Norway v. Denmark) 1933 P.C.I.J. (ser.A/B) No. 53, at 95 (Apr.5); Diversion of Water

from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J (ser. A/B) No. 53, at 172 (Jun. 28); JOHN BASSETT

MOORE, History And Digest Of The International Arbitrations To Which The U. S. Has Been A Party, 2738-39

(1898); BIN CHENG, General Principles Of Law As Applied By International Courts And Tribunals 156 (1987).

33
UN Doc A/CJN.4/546, 9, ¶18.

23
victim’s conduct involved no wrongful act by the respondent State.34 Consequently, the clean-

hands doctrine does not apply.35

34
Report of the International Law Commission, Second Report on State Responsibility, U.N. G.A, at 49, 51st Sess.,

U.N. Doc.A/CN.4/498/Add.2 (1999); J. Salmon, Des mains propres' comme condition de Recevabilite des

Reclamations, A.F.D.I. 249 (1964); Garcia Arias, La Doctrine Des “Clean Hands” En Droit Internacional Public,

Annuaire A.A.D.I. 18 (1960).

35
Finnish Ship owners' Arbitration, (Finland V. United Kingdom), 1934 3 R.LA.A. 1479 (May 9); Case Concerning

Elettronica Sicula S.P.A. (U.S. v. Italy), 1989 ICJ Rep. (Jul. 20).

24
 II. THE ACT OF SEA CORPORATION IS ATTRIBUTABLE TO ROR.

ARSIWA36 are widely accepted as codification of international law.37 A state commits an

internationally wrongful act when a) the action or omission is attributable to the state under

international law, and b) the action or omission constitutes a breach of an international obligation.38

SEA’s acts are attributable to Revel because it was under Revel’s control and Revel acknowledged

the conduct as its own.

A. SEA CORPORATION IS EXERCISING ELEMENTS OF GOVERNMENTAL AUTHORITY.

Private entities engage the responsibility of the State even if they are autonomous and they have

discretion to exercise the authority as long as the conduct in question was an exercise of the

elements of governmental authority which the internal law empowers them to carry out.

Article 5 does not attempt to identify precisely the scope of “governmental authority” for the

purpose of attribution of the conduct of an entity to the State. It depends upon the factual

36
ILC Draft ARSIWA, Report of the ILC on the Work of Its Fifty-third, U.N.GAOR, 56th Sess., Supp. No.10, at 43,

U.N.Doc. A/56/10 (2001).

37
Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory, Advisory Opinion, 2004

I.C.J. 136, 199, ¶140 (Jul. 9); Gabcikovo-Nagymaros Project Case (Hungary v. Slovakia), Judgement, 1997 I.C.J. 7

(Sep. 25); Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human

Rights, Advisory Opinion, 1999 I.C.J. 62 (Apr. 29), The Zafiro case (D. Earnshaw & Ors. v United States) 1925, 4

RIAA, 160 (Nov. 30); Stephens Case,(R v Dudley & Stephens) 1927 4 RIAA, 267 (Dec. 9).

38
ILC Draft ARSIWA, Report of the ILC on the Work of Its Fifty-third, U.N.GAOR, 56th Sess., Supp. No.10, Art. 2

at 43, U.N.Doc. A/56/10 (2001).

25
circumstances of the case. Of particular importance will be not just the content of the powers, but

the way they are conferred on an entity, the purposes for which they are to be exercised.39

Under Paris Agreement “Parties recognize the importance of integrated, holistic and balanced non-

market approaches being available to Parties which aims to enhance public and private sector

participation in the implementation of NDC”.40

ROR was assisted by SEA Corporation in order to achieve the state’s NDC commitment which

was a public function.41 This amounts to exercise of element of governmental authority by SEA

Corporation.

B. CONDUCT OF SEA CORPORATION IS CONTROLLED OR DIRECTED BY STATE.

Under Article 8 of the ARSIWA, the conduct of a group or persons shall be considered an act of a

State if the person or group is acting under the instruction or direction or control of that state. 42

The term group includes corporations.43

39
Ilc draft page 43 para 5

40
Unfccc pg 24 point 8.

41
Record

42
ILC Draft ARSIWA, Report of the ILC on the Work of Its Fifty-third, U.N.GAOR, 56th Sess., Supp. No.10, Art. 8

at 47 U.N.Doc. A/56/10 (2001).

43
JAMES CRAWFORD, The International Law Commission's Articles on State Responsibility: Introduction, Text,

and Commentary, 112 (2002).

26
The requirement of international law for the attribution to States of acts performed by private

individuals is that the State exercises control over the individuals. The degree of control may,

however, vary according to the factual circumstances of each case.44 Enough state practice45,

judicial practice46and practice of UN47 exists to support the ‘overall control’ standard for state

responsibility.

In establishing the control test which attributes conducts of private groups to the state, international

decisions have recognized the financing or logistic support of a private group by the state as an

44
Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment, ¶138 (Int’l Crim. Trib. For the Former

Yugoslavia Jul. 15, 1999).

45
Antonio Cassesse, The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on Genocide in Bosnia,

18 EJIL 649, 653 (2007).

46
Loizidou v. Turkey, 40/1993/435/514, Preliminary Objections, (ECHR 23 Mar, 1995); Yeager v. Islamic State of

Iran 17 Iran- U-S- Cl. Trib. Rep. 92 (1987); Jorgić v. Germany App. No. 74613/01 (ECtHR 12 July 2007), Cyprus v.

Turkey App. No. 25781/94 (ECtHR 10 May 2001); Ilascu and Others v. Moldova and Russia, Judgement, 48787/99,

(ECHR 8 July 2004).

47
UN Working Group on Arbitrary Detention in 2000, Situation of Human Rights in East Timor, Report of the UN

Secretary-General, (10 Dec. 1999), UN doc A/54/660; Report of the International Commission of Inquiry on Darfur

to the UN Secretary General, UN doc. S/2005/60, at ¶121–¶123 (1 Feb. 2005).

27
essential factor.48 Corporate actions are attributable to the State when the State uses its interest to

obtain a specific result.49

Through its subsidy program, Revel clearly helped in financing the SEA Corporation’s Sargasso

Sea project to meet its NDCs requirements under the Paris Agreement.50 Clearly Revel is using its

interest in SEA as a vehicle to advance its renewable energy projects, despite its knowledge that

the SEA Corporation harvests Sargassum, which is an essential part of the ecosystem for the

European Eels.

C. CONDUCT OF SEA CORPORATION IS ACKNOWLEDGED AND ADOPTED BY THE STATE.

Article 11 of ARSIWA recognizes that acts of private persons shall be attributed to the state "to

the extent that the State acknowledges and adopts the conduct in question as its own."

Acknowledgement and adoption of conduct by a State might be expressed or implied.51

48
Prosecutor v. Tadic, Case No. IT-94-1-A, Appeals Chamber Judgment, ¶133-¶136 (Int’l Crim. Trib. for the Former

Yugoslavia Jul. 15, 1999).

49
Foremost Tehran v. Iran, 10 Iran-U.S. Cl. Trib. Rep. 228 (1986); American Bell International v. Iran, 12 Iran-U.S.

Cl. Trib. Rep. 170 (1986); JAMES CRAWFORD, The International Law Commission's Articles on State

Responsibility: Introduction, Text, and Commentary 112-13 (2002).

50
RECORD PARA 14

51
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, at 29 (May 24).; Draft ARSIWA,

International Law Commission, 53rd Sess., G.A. Supp. No. 10 (A/56/10) (2001).

28
Under art 11 acknowledgement means state acknowledges the factual existence of conduct or

expresses its verbal approval of it. The language of “adoption”, carries with it the idea that the

conduct is acknowledged by the State as, in effect, its own conduct.

While states may publicly endorse acts without attracting responsibility for them, ROR went beyond

mere support by exploiting the SEA Corporation’s Sargassum initiative for its national benefit.52

Subsequent acknowledgment of acts of individuals by the State as serving State purposes,

translates as adoption.53

In United States Diplomatic and Consular Relations in Teheran, this Court held Iran

internationally responsible for the student takeover of the U.S. embassy when Iran gave its

approval to the students' unlawful actions subsequently54 which made the militants de facto agents

of the Iranian State and their acts became internationally attributable to that State.55

Revel is therefore liable for the acts of the SEA Corporation as it fundamentally transformed the

acts from a private nature to an act of state.

52
Record para 14.

53
United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3, at 29 (May 1980); ROSALYN

HIGGINS, Problems and Process, 150 (1995); IAN BROWNLIE, System of the Law of Nations: State Responsibility

(Part 1), 160-61 (1986).

54
Id.at 33-34.

55
Id.at 34.

29
 D. FLAG STATE JURISDICTION.

Art 9456 enlists the duties of the flag state and it states “Every State shall effectively exercise its

jurisdiction and control in administrative, technical and social matters over ships flying its flag.”

The basic principle relating to jurisdiction on the high seas was elaborated in the Lotus case,57

where it was held that ‘vessels on the high seas are subject to no authority except that of the state

whose flag they fly’.58 When a state assumes legal authority over a ship by grant of its flag, the

state also assumes a certain obligation to take measures to ensure that the vessel, acts in a fashion

consistent with international law.59

Arguendo, even if the act of SEA corp is not attributable to state, ROR is liable since it failed to

exercise the control necessary to prevent such acts.60

56
Art. 94, UNCLOS, 1982.

57
Sellers v. Maritime Safety Inspector, 2 NZLR 44, 46–8, 120 ILR, p. 585(1999).

58
Art. 92,94,97,98,99,113 and 115, UNCLOS, 1982.

59
PG 18 hardcopy

60
Macloms shaw pg 598

30
31
THE ACT OF SEA CORPORATION HAS LED TO VIOLATION OF INTERNATIONAL LAW.

III. THE ACT OF SEA CORPORATION HAS LED TO VIOLATION OF TREATY

AND CUSTOMARY OBLIGATIONS.

A. ROR VIOLATED THE LAW OF SUSTAINABLE DEVELOPMENT.

i. ROR’s development process harms marine environment.

The right to development should be fulfilled so to meet equitably the developmental and

environmental needs of the present and future generations.61 This need to reconcile development

with protection of the environment is aptly expressed in the concept of sustainable development.62

The development decision should not disregard environmental consideration63 and States are

obligated to use its elements sustainably.64

61
Stockholm declaration principle 1 Paris agreement CP.21, Rio declaration principle 3, International law & the

environment , patricia birnie, alan boyle, Catherine redgwell, age no. 115.

62
gabcikovo- nagymars case ICJ report (1997)7, para 140; iron rhone arbitration, PCA (2005) para 59; lowe and

Higgins, in boyle ajd freestone(eds), international law and sustainable development(oxford, 1999) chs2 and 5.

63
International law & the environment , patricia birnie, alan boyle, Catherine redgwell, age no. 117

64
CBDart.8(I),8(c),UNFCCCart.3(4)Tore.Henriksen,.Conservation.and.Sustainable.Use.of.Arctic.Marine.Biodiversit

y:.Challenges.and .Opportunities,.Arctic.Review.on Law.and.Politics.(2010).

32
 ii. ROR failed to formulate national plans and programmes.

Parties are obliged to develop national plans and programs for conservation and sustainable use of

biological diversity.65 This necessarily includes the duty to formulate strategies to avoid

biodiversity loss.66

iii. Environmental law and law of development are not alternatives.

Environmental law and law of development stands not as alternatives but as mutually reinforcing,

integral concepts, which requires where development may cause significant harm to the

environment there is a duty to prevent, or at least mitigate such harm.67 It is the responsibility of

the state to protect the environment and the earth’s natural resources. 68 NDC commitments need

to be fulfilled considering sustainable development and environmental integrity.69

Therefore, harvesting of sargassum by ROR harms the environment and biological diversity of

sargasso sea which also includes critically endangered species like european eels. Thus, by

harming the biodiversity of these species there is a serious threat of extinction which violates the

65
Art. 1,6 10(a) CBD, Art. 6 1760 UNTS 79; 31 ILM 818 (1992), paris agreement 109.

66

67
CBD, art 10(b) rhine arbitration, PCA (2005) para 59. Sustainable development in international and national alw,

ch 2 and 3.

68
Stockholm declaration,Principle 1 and 2.

69
Article 6,7,8(1), 10 paris agreement.

33
principle of sustainable development. Also, ROR cannot violate the principle of sustainable

development in order to fulfil its NDC commitments.

B. VIOLATION OF CUSTOMARY INTERNATIONAL LAW.

i. The SEA Corporation violated the precautionary principle.

There is sufficient state practice and opinio juris to consider PP custom. 70 The Precautionary

principle receives high connotation as per the treaty obligations of ROR under UNCLOS71, CBD72

and Rio declaration73. The precautionary principle ensure that a state shall act with a view to

achieving acceptable solutions regarding measures to be adopted to prevent or minimize the risk74

and is a requirement of general international law.75

70
See.Arie.Trouwborst,.Evolution.and.Status.of.the.Precautionary.Principle.in.International.Law.(2002);Agne.Sirins

kiene,The.Status.of.Precautionary.Principle:.Moving.Towards.a.Rule.of.Customary.International.Law.(2009),.David

Freestone.&.Ellen.Hey,.The.Precautionary.Principle.and.International.Law.(1995);.and.Tim.O’Riordan.&.JamesCa

meron,.Interpreting.the.Precautionary.Principle.(1994).

71
UNCLOS, Article 194

72
CBD Preamble, ARTICLE 6; Rio Declaration Principle 15; Stockholm Declaration, Article 1.

73
Principle 15.

74
Articles on Transboundary Harm, Article 9(1).

75
Pulp Mills Case, ICJ Reports 2010, 1, 51, ¶164; Supra n. 67. See also Memorial Submitted by Argentina, 15.1.2007,

199, ¶5.13; Rejoinder of Uruguay, Vol.I, 29.7.2008, 311, ¶. 5.66.

34
 a. ROR’s action may lead to extinction of endangered species.

“Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not

be used as a reason for postponing cost-effective measures to prevent environmental

degradation”.76 It is impermissible to carry out an activity unless it can be shown that it will not

cause unacceptable harm to the environment.”77 Although the risk posed to the marine biodiversity

from harvesting is uncertain but that does not in any way affect the duty to take full precaution in

order to mitigate such uncertain harm.78

b. Failure of ROR to adhere to Duty of Cooperation.

The Duty of Cooperation affirms the responsibility of the state to provide prior and timely

notification79 and relevant information to potentially affected States on activities that may have a

significant adverse Transboundary environmental effect.80 The spirit of Cooperative action among

all countries in matters concerning the environment has been established to be a customary

76
Rio Declaration.on.Environment.and Development, Principle.15,.U.N .Doc A/CONF 151/5/Rev1 (16.June.1992).

77
P. BIRNIE AND A. BOYLE, International Law and the Environment, 118 (2nd ed., 2002).

78
CBD, Article 7(3), UNCLOS Article 198.

79
Claim for Factory at Chorzow (Claim for Indemnity) Case [Germany v. Poland], Merits, 1928, PCIJ, Series A, No.

17, p. 29.

80
Articles on Transboundary Harm, Article 8.

35
international law.81 One of the main components of the duty of international environment

cooperation includes prior consultation82 to ensure information sharing and participation of the

affected states in the decision making.83

ii. Violation of Transboundary Harm.

“Activities within the jurisdiction of a state should not cause harm to the environment of the other

states or common spaces.”84 States are required to take prior permission and consult in good faith

before undertaking activities that may have significant adverse transboundary environmental

effects.85 In the exploration, exploitation and development of natural resources, states must not

produce significant harmful effects in zones situated outside their national jurisdiction.86

81
Sands, Principles of International Environmental Law, Cambridge; 2nd edition (2003) at 249; Stolkholm

Declaration, Principle 24; UN Charter, Article 74; Rio Declaration, Principle 27.

82
Supra n. 19, MOX Plant Case Order of 3 December2001.

83
Supra n.100 at p. 250.

84
Principle 2 of rio declaration

85
Principle 19of rio declaration

8686
UNGA Res 2995 XXVII(1972).

36
 a. ROR failed the duty to protect interest of neighbouring countries.

States may be liable for transboundary damage caused by wrongful acts or omissions to other

neighboring states.87 Under this obligation, States should not knowingly allow its territory to be

used for acts contrary to the rights of other States.88

b. Duty of due diligence has been violated by ROR.

In complying with a State’s duty to prevent trans-boundary harm,89 the standard of conduct

required to be observed is due diligence i.e., the best possible efforts to minimize the risk.90

Diligence is proportioned to the magnitude of the subject and to the dignity and strength of the

power which is to exercise it.91

87
Trail Smelter Arbitration (United States of America v. Canada) Arbitral Award, 1941 UNRIAA, vol. III, p.1965.

(Mar. 11).

88
Corfu Channel Case (United States v Albania) 1949 ICJ Rep. 22 (Dec. 15); Trail Smelter Arbitration (United States

of America v. Canada) Arbitral Award, 1941 UNRIAA, vol. III, p.1965. (Mar. 11); Nuclear Tests (Australia v France)

Question of Jurisdiction and Admissibility, 1974 ICJ Rep. (Dec. 20).

89
Articles on Transboundary Harm, Article 3

90
Pulp Mills in the River Uruguay Case (Argentina v. Uruguay), I.C.J .Reports 55-56 (Apr. 20, 2010); Report of the

International Law Commission on the Work of its Fifty-Third Session, 154, U.N. Doc.A/56/10 (2004). [hereinafter

‘Pulp Mills Case’]

91
Alabama case, the Geneva Arbitration (claims of the United States of America against Great Britain), in Moore,

History and Digest, vol. IV, p. 4144, at pp. 4156 and 4157 (1872)

37
Conduct of the state must be compared to what a ‘good government’ would do in a particular

situation of transboundary pollution.92 Due diligence is a ‘framework concept’, which means that

its legal meaning depends on the specific risks and activities in question.93 The specific framework

for production of renewable energy is provided in the paris agreement94 which should have been

followed by ROR.

C. BREACH OF ONE TREATY IN ORDER TO COMPLY WITH ANOTHER IS CONTRARY TO PACTA

SUNT SERVANDA.

Every treaty in force is binding upon the parties to it and must be performed by them in good

faith.95 this rule consists of two elements.96 First, every treaty in force is binding upon the parties

to it: a state which is party to several conventions cannot choose to comply with one treaty at the

expense of another. Second, a treaty should be applied in a reasonable way and in such a manner

that their purpose can be realized:97

92
Voigt, Christina, State Responsibility for Climate Change Damages, NORDIC JOURNAL OF INTERNATIONAL LAW,

vol. 77 (2008) p. 11 [hereinafter ‘State responsibility for Climate Change’], Timo Koivurova, Due Diligence, Max

Planck Encyclopedia of Public International Law, 2013 pp. 1 -3.

93
Ibid, State Responsibility for Climate Change (2008), p. 10.

94

95
Art..26, VCLT.

96
Gabčíkovo–Nagymaros.Project.(Hung..v..Slov.),.1977.I.C.J..7.(1997).

97
Ibid.

38
ROR by harvesting sargassum from the Sargasso Sea have violated its obligation under CBD 98

and customary international law. Sargassum prevents the carbon dioxide level of the marine

ecosystem from rising.99 Harvesting sargassum on one hand fulfil ROR’s duty of NDC

commitments however causes failure of UNFCCC itself.

D. ROR VIOLATED ITS TREATY OBLIGATIONS.

i. ROR violated the duty of conservation under CBD.

The main objective of CBD is the conservation of biodiversity.100 States has a fundamental

obligation for in-situ conservation of biological diversity in the ecosystem even in the areas beyond

national jurisdiction101 cooperating with non-governmental sector,102 and other states.103 States

shall manage biological resources in order to conserve biodiversity within protected area104 and

maintain viable population of species.105

98
Art. 22, CBD

99

100
Art. 1 CBD

101
Art. 5, CBD

102
Preamble, CBD

103
Art. 5, CBD

104
Art. 8(c), CBD

105
Art. 8(d), CBD

39
ROR has failed its obligations under CBD for conservation of biodiversity as harvesting sargassum

from the sargasso sea (protected area)106 negetively affects the ecosystem of sargasso sea on which

many species are dependent for there development and reproduction including the critically

endangered species.

ii. ROR violated its obligation under UNCLOS.

a. ROR failed to protect and preserve marine environment.

States have the obligation to adopt measures107 for protection and preservation of marine

environment108 which includes conservation of the living resources.109 These obligations range

from within110 and beyond111 the respective territories of states. States shall not be released

106
EBSA

107
United Nations Convention on the Law of the Sea, Art.61, 10 Dec.1982, 21 I.L.M.1261.

108
United Nations Convention on the Law of the Sea, Art. 192, 1982 21 I.L.M.1261 (Dec. 10).

109
Southern Bluefin Tuna Case (New Zealand v Japan, Australia v Japan), Award on Jurisdiction and Admissibility,

2000, 38 ILM 1624 p.19 (Aug. 4).

110
Ibid. Art.61, ¶2; Art.56, ¶1.

111
Ibid. Art. 117.

40
 from its obligation to protect and preserve the marine environment in exercising sovereign

right to exploit marine living resources.112

b. ROR constituted abuse of right.

States Parties in good faith shall fulfill the obligations under UNCLOS and shall exercise the

rights, jurisdiction and freedoms recognized in this in order that it would not constitute an

abuse of right.113 The concept of “abuse of rights” provides that States are responsible for their

acts, which are not unlawful in the sense of being prohibited (general principle of law),114

however cause injury to other states.115

c. ROR breached its Erga Omnes Obligation.

ROR failed its duty to take, or to cooperate with other States in taking such measures for their

respective nationals as may be necessary for the conservation of the living resources of the

112
Art. 193, UNCLOS, RUDIGER WOLFRUM & NELE MATZ, The Interplay of the United Nations Convention on

the Law of the Sea and the Convention on Biological Diversity (2000).

113
Article 300, UNCLOS.

114
Michael Byers, Abuse of Rights: An Old principle, a New Age, 47 MCGILL L. J., 390, 391 (2002).

115
HERSCH LAUTERPACHT, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY 286

(2011).

41
 high seas.116 It is considered as an erga omnes obligation to conserve high seas living

resources.117

Ror by harvesting sargassum from the high sea harms the essential biodiversity of marine

species including European eels which are a part of culture heritage and tradition of FSA.

Thus, ROR violated its international obligation under UNCLOS.

iii. ROR violated its obligation under UNFCCC.

UNFCCC acknowledge the role and importance in marine ecosystems of sinks and reservoirs of

greenhouse gases.118 States shall promote enhancement of sinks and reservoirs of all greenhouse

gases like oceans as well as other terrestrial, coastal and marine ecosystems.119 The oceans, are

known as “carbon sinks, and fix as much as 30% of carbon dioxide emissions caused by humans.”120

ROR by harvesting sargassum has breached its obligation under UNFCCC to promote sinks in the

sargasso sea and hence liable under the international law.

116
UNCLOS, Art. 117, 10 Dec.1982, 21 I.L.M.1261.

117
The Icelandic Fisheries Jurisdiction case, as later followed by the Estai case, recognized

118
UNFCCC, Preamble.

119
UNFCCC, Article 4 (1) (d).

120

42
 E. THE OIF ACTIVITY DOES NOT QUALIFY A STATE OF NECESSITY.

State of necessity can only be invoked under certain strictly defined conditions which must be

cumulatively satisfied.121 The two essentials to claim the defense of necessity122 being, (1) act the

only way to safeguard essential interest against grave and imminent peril and, (2) the act does not

impair an essential interest of the state(s) against whom the obligation existed.

i. No essential interest involved.

ROR is harvesting sargassum for the production of biofuels which can also be produced by other

means hence it cannot be regarded as a grave and essential interest.

ii. There is no grave and eminent peril.

A peril has to be objectively established and not merely assessed as possible.123 The peril must

pose grave danger to “the survival of the State itself, or its political or economic survival,” among

other disastrous consequences.124 There is only a possibility that global warming might affect the

121
Gabcikovo-Nagymoros Project Case at p. 40– 41, ¶¶51–52; Supra n. 52.

122
ARSIWA, Article 25.

123
Netherlands Yearbook of International Law Volume 41, 2010, Necessity Across International Law, pg. 163

124
Report of the International Law Commission to the General Assembly on the Work of its Thirty-third Session, Int’l

Law Commission Y.B., Vol. 2, part II, 35 (1980), U.N. Doc. A/CN.4/SER.A/1980/Add1 .

43
economy which is merely apprehensive or contingent. ROR cannot be the sole judge of the

necessity125 and has to prove that the peril is inevitable.

iii. Activity not the ‘only way’ to mitigate the peril.

The course of action taken must be the “only way” available to safeguard that interest. The plea is

excluded if there are other (otherwise lawful) means available, even if they may be costlier or less

convenient.126 Considering the fact that Climate changes might have certain adverse impacts on

the marine biodiversity, commencing biofuel projects unilaterally on such a large scale do not

mitigate the peril. There various other valid and successful means of carbon sequestration and

GHG emission limits to curb the menace.127

125
Gabcikovo-Nagymoros Project Case at p. 42–43, ¶5; Supra n. 52.

126
Articles on State Responsibility Commentary to Article 25 ¶15.

127
Kyoto Protocol, Article 3(3).

44
 CONCLUSION AND PRAYER FOR RELIEF

Wherefore, in the light of the questions raised, arguments advanced, reasons given and authorities

cited, The Federal States of Alliguna seeks an order of this Hon’ble court to adjudge and declare

that:

1. The ICJ has jurisdiction to determine the matter.

2. The Republic of Revels is liable for the act of the SEA Corporation.

3. The Republic of Revels has violated International Law by harvesting Sargassum from the

Sargasso Sea.

4. The Republic of Revels is barred from further carrying of the project as this is violative of

International Law.

And any other relief that this Hon'ble Court may be pleased to grant in the interests of justice,

equity, and good conscience.

For Which the APPLICANTS Shall Forever Pray.

45
ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE APPLICANTS

46