Team No.

1944A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

QUESTIONS RELATING TO

USE OF THE SARGASSO SEA AND THE PROTECTION OF EELS

FEDERAL STATES OF ALLIGUNA

APPLICANT

V.

REPUBLIC OF REVELS

RESPONDENT

______________________________________________________________________________

MEMORIAL FOR THE APPLICANT

23RD ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

MOOT COURT COMPETITION
2018-2019
 TABLE OF CONTENTS

Questions Presented ............................................................................................................................iii

Statement of Jurisdiction..................................................................................................................... iv

Index of Authorities.............................................................................................................................. v

Statement of Facts ................................................................................................................................ v

Summary of Argument........................................................................................................................ xi

Argument .............................................................................................................................................. 1

I. The International Court of Justice has jurisdiction over the present dispute because
Alliguna and Revels have agreed to submit to the Court’s jurisdiction for agreements under
which the dispute directly arises. .................................................................................................... 1

A. The present dispute arises directly under the CBD because Revels has failed to perform
its affirmative obligations concerning conservation of biodiversity in the Sargasso Sea,
which are in addition to, and not inconsistent with, its rights and obligations under the CMS
and UNCLOS. .............................................................................................................................. 1

1. Article 22 of the CBD, rather than the doctrine of lex specialis, should be applied to
resolve conflicts between the CBD and other treaties relating to the same subject-matter. 1

2. The CMS does not limit ICJ jurisdiction under the CBD in this case. ........................ 2

3. UNCLOS does not limit ICJ jurisdiction under the CBD in this case. ........................ 4

B. The present dispute arises under the Paris Agreement because Revels is defending its
wrongful conduct by arguing the SEA Corporation’s Sargassum harvesting project fulfills
Revels’s NDC commitments. ...................................................................................................... 5

II. Revels is responsible for the wrongful conduct at issue because it failed to perform its
affirmative obligations under international law and the SEA Corporation’s harvesting of
Sargassum is attributable to Revels................................................................................................. 6

A. Revels failed to perform its affirmative obligation to take measures to conserve the
biodiversity of the Sargasso Sea. ................................................................................................ 6

B. Revels acknowledged and adopted the wrongful conduct of the SEA Corporation as its
own. ............................................................................................................................................... 8

III. Revels violated international law as a result of the Sargassum harvesting project. .......... 10

A. Revels violated its treaty obligations................................................................................ 10

i
 1. Revels violated its duty to promote the conservation and sustainable use of
biological diversity of the Sea as mandated by the CBD. ................................................... 10

2. Revels violated its obligation to conserve migratory species, particularly the

vulnerable European Eel, under the CMS, CBD, and UNCLOS........................................ 12

B. The limiting language of the CMS does not justify Revels harvesting Sargassum. ...... 13

C. Revels violated customary international law. .................................................................. 14

1. Revels violated the precautionary principle. ................................................................ 15

2. Revels breached its duty to prevent transboundary harm. .......................................... 16

D. Revels’s failure to comply with its obligations is not justified under international law. ..
............................................................................................................................................. 17

1. The freedom of the high seas granted to States under UNCLOS is limited and does
not apply to situations that violate other sections of UNCLOS. ......................................... 17

2. Revels cannot hide behind its climate change mitigation obligations because the
Sargassum harvesting project violates the Paris Agreement and CMS Resolutions. ........ 18

3. Harvesting Sargassum caused harm. ............................................................................ 20

ii
 QUESTIONS PRESENTED

1. Does the International Court of Justice (“ICJ”) have jurisdiction to determine the present

dispute?

2. Is the Republic of Revels (“Revels”) responsible for the alleged internationally wrongful

conduct?

3. Did Revels violate international law by harming Sargasso Sea biodiversity, including the

European eel, through a Sargassum harvesting project it supported, subsidized, and failed to

regulate in accordance with its obligations under treaty and customary law?

iii
 STATEMENT OF JURISDICTION

Under Article 36(2) of the Statute of the International Court of Justice, the ICJ has

jurisdiction over the present dispute as a matter “specifically provided for in . . . treaties and

conventions in force” because the Federal States of Alliguna (“Alliguna”) and Revels have

agreed in writing to submit to the jurisdiction of the ICJ pursuant to Article 27 of the Convention

on Biological Diversity (“CBD”) and Article 24 of the Paris Agreement, under which the

dispute arises. Because the parties have agreed, as expressed in the Joint Written Statement of

the Federal States of Alliguna and the Republic of Revels (“Joint Statement”), that Revels’s

preliminary objections be heard and determined within the framework of the merits, the ICJ shall

decide both the jurisdictional and merits questions of the dispute based on the facts contained in

Annex A of the Joint Statement.1

1
Rules of Court, art. 79, ¶ 10; Statute of the International Court of Justice, art. 36, ¶ 6.

iv
 INDEX OF AUTHORITIES

JUDICIAL DECISIONS

Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 23 (April 9).........................................6, 7, 16

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (July
8)...................................................................................................................................................... 16

Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SFRC),
Case No. 21, Advisory Opinion of Apr. 2, 2015, [2015] ITLOS Rep. 4. ..................................... 7

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, Case No. 17, Advisory Opinion of Feb. 1, 2011, [2011] ITLOS Rep. 10.
........................................................................................................................................................... 7

United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980 I.C.J. 35
(May 24). .......................................................................................................................................... 9

TREATIES & CONVENTIONS

Convention on Biological Diversity art. 1, June 5, 1992, 1760 U.N.T.S. 79. ....... 1, 2, 4, 10, 11, 12

Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 1651
U.N.T.S. 333. ........................................................................................................................3, 12, 14

Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 13,
2015, in Rep. of the Conference of the Parties on the Twenty-First Session, U.N. Doc.
FCCC/CP/2015/10/Add.1 (2016). ................................................................................................. 18

United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3. . 4, 13, 15, 17

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. ...................... 2, 14

ESSAYS, ARTICLES, & JOURNALS

Burrus M. Carnahan, Treaty Review Conferences, 81AJIL 226 (1987). ....................................... 20

Jutta Brunnée, COPing with Consent: Law-Makin Under Multilateral Environmental

Agreements, 15 Leiden J. Int’l. 21 (2002). ................................................................................... 20

Lyle Glowka, Complementarities between the Convention on Migratory Species and the
Convention on Biological Diversity, 3 J. Int’l Wildlife L. & Pol’y 205 (2000)........................... 3

v
 U.N. DOCUMENTS & OTHER INTERNATIONAL DOCUMENTS

“Anguilla Anguilla,” The IUCN List of Threatened Species (Version 2018.1),

https://www.iucnredlist.org/search?query=ANGUILLA%20ANGUILLA&searchType=specie
s (last visited Nov. 2, 2018). .......................................................................................................... 20

CMS, Res. 11.27, P 3.3, UNEP/CMS/Resolution 11.27 (4-9 Nov. 2014) (renewable ocean
energy). ........................................................................................................................................... 19

CMS, Res. 12.21, P 9, UNEP/CMS/Resolution 12.21 (15 Dec. 2017) (climate change and
migratory species). ......................................................................................................................... 19

Ecologically or Biologically Significant Marine Areas: The Sargasso Sea, CHM (June 15, 2015),
https://chm.cbd.int/pdf/documents/marineEbsa/200098/4. ......................................................... 11

IUCN, Guidelines for Applying the Precautionary Principle (2007),

http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf. ................................................ 15

Nicholas Ashford, et. al., World Health Org., Wingspread Statement on the Precautionary
Principle (1998), www.who.int/ifcs/documents/forums/forum5/wingspread.doc. ................... 15

Report of the International Law Commission on the Work of Its Fifty-Third Session, [2001] 2
Y.B. Int’l L. Comm’n 34, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2).................. 6, 8, 9, 20

Rules of Court, art. 79, ¶ 10 ................................................................................................................ iv

Sargasso Sea Alliance, Submission of Scientific Information to Describe Ecologically or

Biologically Significant Marine Areas, https://www.cbd.int/doc/meetings/mar/rwebsa-wcar-
01/other/rwebsa-wcar-01-sargasso-sea-alliance-02-en.pdf. ..................................................11, 12

Statute of the International Court of Justice, art. 36, ¶ 6. ................................................................. iv

The Future We Want, G.A. Res. 66/288, P 206, U.N. Doc. A/RES/66/288 (Sept. 11, 2012). ..... 14

U.N. Conference on Environment and Development, Rio Declaration on Environment and

Development, U.N. Doc. A/CONF.151/26/Rev.1 (Aug. 12, 1992). ........................................... 16

U.N., First Global Integrated Marine Assessment, ch. 50 (2016),

http://www.un.org/Depts/los/global_reporting/WOA_RPROC/WOACompilation.pdf.
...................................................................................................................................................11, 12

BOOKS

Daniel Bodansky, et. al., The Oxford Handbook of International Environmental Law 598 (2007).
...................................................................................................................................................15, 16

Godefridus J.H. Hoof, Rethinking the Sources of International Law (1983). ................................ 14

Philippe Sands, et. al., Principles of International Environmental Law (2012). ........................... 20

vi
Xue Hanqin, Transboundary Damage in International Law (2003). ............................................. 16

vii
 STATEMENT OF FACTS

The Sargasso Sea (“Sea”) ecosystem is vital to marine biodiversity, including the

critically endangered European eel (“Eel”).2 The Eel migrates from coastal and inland waters,

including those of Revels and Alliguna, to the Sea to spawn. 3 Eel offspring migrate inland to

grow and develop.4 The Eel has historically played a major role in Alliguna’s cultural and

religious traditions, but Eel populations have steadily declined.5

The Eel and other Sea biodiversity are so important and threatened that Revels and

Alliguna are parties to a variety of agreements calling for their protection, including the CBD,

CMS, UNCLOS, and Hamilton Declaration on Collaboration for the Conservation of the

Sargasso Sea (“Hamilton Declaration”).6 The Eel is listed on Appendix II of the CMS, and

Alliguna and Revels are Range States for the species.7 The Sea has been designated as an

ecologically or biologically significant marine area under the CBD.8 Furthermore, Alliguna and

Revels have expressed a commitment to environmental conservation by sending high-level

representatives to fully participate in the 1972 Stockholm U.N. Conference on the Human

Environment, the 1992 Rio de Janeiro U.N. Conference on Environment and Development, the

2
See R. ¶ 3.
3
Id.
4
Id.
5
R. ¶ 3–4

6
R. ¶¶ 7–9, 11.
7
R. ¶ 8.
8
R. ¶ 18.

viii
2002 Johannesburg World Summit on Sustainable Development, and the 2012 Rio de Janeiro

Rio+20 Conference.9

Despite its commitments to conserve Sea biodiversity, Revels subsidized and supported

the SEA Corporation’s Sargassum harvesting project (“the project”) in the Sea on the high seas

beyond national jurisdiction.10 The corporation, sailing under the flag of Revels, planned to use

the Sargassum in biofuel production.11 Without Revels’s subsidy, the project would not have

occurred.12 Revels funded the project with the expectation the project would help the State meet

its NDC commitments under the Paris Agreement, to which both Revels and Alliguna are

parties.13 There is no evidence Revels examined potential risks to biodiversity or communicated

with affected parties before subsidizing the project.14

Friends of the Eels, a non-governmental organization, notified Alliguna of the project

out of concern the project would adversely impact the Eels.15 After confirming the information it

received, Alliguna communicated to Revels the concerns for Sea biodiversity.16 Although there

is no indication Revels has assessed its impact on Sea biodiversity, it insists its conduct is legal

9
R. ¶ 12.
10
R. ¶ 14.
11
R. ¶ 13.
12
C. ¶ A18.
13
R. ¶¶ 10, 14, 19.

14
R. ¶¶ 1–28.
15
R. ¶ 17.
16
Id.

ix
under international law.17 Revels has failed to cooperate with Alliguna in finding a means to

minimize the harm of the harvesting project or to accept Alliguna’s invitation to discuss the

matter in greater detail.18 Despite agreeing to submit to ICJ jurisdiction for disputes involving

interpretation of the CBD and Paris Agreement, Revels refused to submit the matter to the ICJ.19

17
R. ¶¶ 1–28.

18
R. ¶¶ 19, 24.
19
R. ¶¶ 7, 10, 24.

x
 SUMMARY OF ARGUMENT

I. The ICJ has jurisdiction in this case because Alliguna and Revels agreed to submit to ICJ

jurisdiction for disputes concerning the CBD and Paris Agreement. The present dispute arises

under those agreements because Alliguna alleges Revels has failed to perform its affirmative

obligations under the CBD to conserve biodiversity in the Sargasso Sea, and Revels contends the

conduct at issue was in furtherance of its NDC commitments under the Paris Agreement and

therefore lawful. The Conservation of Migratory Species of Wild Animals (“CMS”) and the

United Nations Convention on the Law of the Sea (“UNCLOS”) do not bar ICJ jurisdiction in

this case because, under Article 22 of the CBD, the terms of the CBD do not affect the rights and

obligations of Revels under the CMS, and Revels’s obligations under the CBD are consistent

with its obligations under UNCLOS with respect to living resources of the high seas.

II. Per customary international law, Revels is responsible for the internationally wrongful

conduct at issue because it failed to perform its affirmative obligations under treaty and

customary law and acknowledged and adopted as its own conduct the SEA Corporation’s

harvesting of Sargassum.

III. Revels violated international law by harvesting Sargassum to the detriment of the Sea

environment and the Eel’s habitat, by failing to create regulations which protect the marine

environment, and by failing to cooperate with Alliguna to preserve biological diversity. Revels

violated the duty to promote the conservation and sustainable use of biological diversity of the

Sea as mandated by the CBD. Additionally, Revels violated its obligation to conserve migratory

species, particularly the vulnerable Eel, under the CMS, CBD, and UNCLOS. The limiting

language of the Conventions does not excuse the harvesting of Sargassum because applicable

conventions have as their object and purpose the conservation of biodiversity and the protection

xi
of habitats. Revels violated customary international law, including the precautionary principle

and duty to prevent transboundary harm. Revels’s failure to comply with its obligations is not

justified under international law because the freedom of the high seas granted to States under

UNCLOS is limited. The freedom of high seas is subject to several other duties under UNCLOS.

Revels cannot hide behind Paris Agreement obligations to create harm to another country

because harvesting Sargassum goes against the purpose the Paris Agreement—to promote

protection of biodiversity and sustainable development. Additionally, Revels has caused an

imminent threat or harm to the Eel by damaging the Eel’s habitat.

xii
 ARGUMENT

I. The International Court of Justice has jurisdiction over the present dispute because
Alliguna and Revels have agreed to submit to the Court’s jurisdiction for
agreements under which the dispute directly arises.

A. The present dispute arises directly under the CBD because Revels has failed to
perform its affirmative obligations concerning conservation of biodiversity in the
Sargasso Sea, which are in addition to, and not inconsistent with, its rights and
obligations under the CMS and UNCLOS.

Alliguna primarily alleges Revels violated the CBD by failing to take measures required

under the convention for the conservation of the Sea, which includes, but is not limited to, the

Eel.20 This misconduct directly implicates the CBD because the principal objective of the

convention is the “conservation of biological diversity,”21 which includes the endangered Eel.

While Alliguna is particularly concerned by Revels’s harm to Eel populations, this concern does

not diminish Revels’s harm or threat to other species living in the Sea or the applicability of the

CBD, which contemplates the protection of individual threatened species.22 Because Alliguna

and Revels have agreed to submit to ICJ jurisdiction under Article 27 of the CBD,23 the ICJ has

jurisdiction in the present dispute.

1. Article 22 of the CBD, rather than the doctrine of lex specialis, should be applied to
resolve conflicts between the CBD and other treaties relating to the same subject-
matter.

Lex specialis should not be applied to limit the ICJ’s jurisdiction in this case because the

Vienna Convention on the Law on Treaties (“Vienna Convention”) should control. By ratifying

20
R. Annex B (emphasis added); see infra Section III.A.1.

21
Convention on Biological Diversity art. 1, June 5, 1992, 1760 U.N.T.S. 79, 146 [hereinafter CBD].
22
See, e.g., id. art. 8, at 148–49.
23
R. ¶ 4.

1
the Vienna Convention, 24 Revels has agreed to be bound by the interpretive doctrines it invokes.

Lex specialis is not an interpretive doctrine of the Vienna Convention. Instead, the Vienna

Convention gives effect to the specific conflict provisions contained in treaties.25 Article 22 of

the CBD contains conflict clauses similar to the those described by Article 30, ¶ 2 of the Vienna

Convention, but they contain limiting language. Because “a treaty shall be interpreted in good

faith in accordance with the ordinary meaning to be given to the terms of the treaty in their

context and in the light of its object and purpose,”26 the conflict clauses and limiting language

should be given effect.

2. The CMS does not limit ICJ jurisdiction under the CBD in this case.

Article 22, ¶ 1 of the CBD provides, “The provisions of this Convention shall not affect

the rights and obligations of any Contracting Party deriving from any existing international

agreement, except where the exercise of those rights and obligations would cause a serious

damage or threat to biological diversity.”27 While the CMS is an “existing international

agreement,” the CBD obligates Revels without affecting its rights and obligations under the

CMS. Moreover, even if it were determined that the CBD affected the rights and obligations of

Revels under the CMS, the CBD would be controlling because Revels’s wrongful conduct poses

a serious threat to biological diversity.

Revels’s obligation to take measures to conserve biodiversity in the Sea does not affect

its rights and obligations under the CMS. While CMS Instruments operate primarily at the

24
R. ¶ 6.

25
Vienna Convention on the Law of Treaties art. 30, ¶ 2, May 23, 1969, 1155 U.N.T.S. 331, 339.
26
Id. art. 31, ¶ 1, at 340.
27
CBD art. 22, ¶ 1, supra note 21, at 156.

2
“global and regional levels in the context of a specific, globally significant component of

biological diversity[—]migratory species”—the CBD operates primarily at the national level by

placing on nation States broader obligations aimed at conserving biodiversity in general.28

Revels violated the CBD by failing to implement specific national measures to protect the

biodiversity of the Sea as a whole.29 These measures are distinct from, but not inconsistent with,

the obligations Revels has under the CMS with respect to specific migratory species, such as

Revels’s obligation to “endeavor to conclude AGREEMENTS where these should benefit”

Appendix II migratory species, such as the Eel.30 Furthermore, the CBD does not “affect the

rights” Revels has under the CMS because the CMS does not grant Revels any rights that

conflict with the terms of the CBD. Although the CMS requires only that Range States

“endeavor to conclude” Agreements for the conservation of Appendix II species, this should not

be construed as giving Range States the “right” to harm endangered migratory species because

this interpretation would be antithetical to the very purpose of the CMS—to encourage, rather

than inhibit, actions aimed at conserving migratory species with unfavorable conservation

statuses.

Even if it was determined that the CBD affected Revels’s rights and obligations under the

CMS, the ICJ would still have jurisdiction in this case. As discussed in Part III of this memorial,

28
Lyle Glowka, Complementarities between the Convention on Migratory Species and the Convention on

Biological Diversity, 3 J. Int’l Wildlife L. & Pol’y 205, 216 (2000). Lyle Glowka, as the former Senior Legal

Advisor to the CBD Secretariat and the current Executive Coordinator of the Abu Dhabi office of the CMS

Secretariat, is among “the most highly qualified publicists.”

29
See infra Section III.A.1.

30
Convention on the Conservation of Migratory Species of Wild Animals art. IV, June 23, 1979, 1651 U.N.T.S.

333, 362–63; R. ¶ 8 [hereinafter CMS].

3
Revels’s harvesting of Sargassum and failure to satisfy its obligations under the CBD poses a

serious threat to the Eel and other biodiversity of the Sea. Thus, pursuant to the limiting

language of Article 22 of the CBD, Article 27 of the CBD, which provides for ICJ jurisdiction in

this case, would apply.

3. UNCLOS does not limit ICJ jurisdiction under the CBD in this case.

Article 22, ¶ 2 of the CBD states, “Contracting Parties shall implement this Convention

with respect to the marine environment consistently with the rights and obligations of States

under the law of the sea.”31 The obligations imposed by the CBD are additional to, but entirely

consistent with, the rights and obligations imposed by UNCLOS with respect to living resources

of the high seas. UNCLOS Articles 116 through 119 provide that States have the right to fish the

high seas, 32 subject to duties to take necessary measures to conserve the living resources of the

high seas, 33 to cooperate with other States in taking such conservation measures, 34 and to “take

in consideration the effects on species associated or dependent upon harvested species with a

view to maintaining or restoring populations of such associated or dependent species above

levels at which their reproduction may become seriously threatened.” 35 Each of these UCNLOS

articles is consistent with the more detailed provisions of the CBD; while UNCLOS establishes

the general principle that parties should cooperate to conserve living resources of the high seas,

31
CBD art. 22, ¶ 2, supra note 21, at 157.
32
United Nations Convention on the Law of the Sea art. 116, Dec. 10, 1982, 1833 U.N.T.S. 3, 441 [hereinafter

UNCLOS] (emphasis added).

33
Id. art. 117, at 441.
34
Id. art. 117–18, 441.
35
Id. art. 119, at 441–42.

4
the CBD and related Decisions flesh this principle out by imposing more specific obligations on

States to conserve biodiversity, and in particular, the biodiversity of the Sea.36 Because Revels’s

obligations under the CBD are additional to but perfectly consistent with UNCLOS provisions

concerning the high seas, UNCLOS does not limit ICJ jurisdiction in this case.

B. The present dispute arises under the Paris Agreement because Revels is defending
its wrongful conduct by arguing the SEA Corporation’s Sargassum harvesting
project fulfills Revels’s NDC commitments.

The present dispute also arises under the Paris Agreement because one of Revels’s

principle arguments is that since its subsidy and support of Sargassum harvesting helps to curtail

climate change and fulfill its NDC commitments under the Paris Agreement, Revels is not

violating international environmental law.37 For example, Revels contends the project does not

conflict with its obligations under customary international law, stating “[t]he precautionary

principle actually weighs in favor of continuing the renewable energy project to help mitigate

climate change.”38 Because Alliguna alleges Revels has violated both treaty and customary

international law through its Sargassum harvesting and regulatory failures, evaluating the extent

to which Revels’s obligations under the Paris Agreement limit or are subject to Revels’s rights

and obligations under the CBD, CMS, UNCLOS, and customary international law is essential for

resolving the present dispute. Thus, the ICJ has jurisdiction under the Paris Agreement because

the present dispute arises directly under it and Revels has agreed to submit to ICJ jurisdiction in

such cases.39

36
See infra Section III.A.1.
37
See R. ¶ 14, 19.

38
R. ¶ 19.
39
R. ¶ 10.

5
II. Revels is responsible for the wrongful conduct at issue because it failed to perform
its affirmative obligations under international law and the SEA Corporation’s
harvesting of Sargassum is attributable to Revels.

A. Revels failed to perform its affirmative obligation to take measures to conserve the
biodiversity of the Sargasso Sea.

Revels is responsible for the wrongful harvesting of Sargassum in the Sea by the SEA

Corporation because by subsidizing, supporting, and failing to regulate the project, Revels failed

to perform its affirmative obligation to take certain conservation measures specified by treaty

and customary law.40 A State may be responsible for an internationally wrongful act not only by

acting directly contrary to international law or through the attributed actions of private entities

under the jurisdiction of the State but also by failing to act in accordance with its obligations

under treaty or customary law.41

Several international law cases demonstrate that under customary international law, a

State is responsible for an internationally wrongful act if it fails to act in accordance with its

affirmative obligations. For example, in the Corfu Channel case, the ICJ held that Albania was

responsible under international law for the losses the United Kingdom incurred when its

warships suffered damage from mine explosions in Albanian territorial waters.42 Although the

ICJ determined there was no evidence Albania had laid the mines itself, Albania was still

responsible for the damage caused because it knew about the mines and breached its obligation

under customary international law to warn the United Kingdom of the location of the mines.43

40
See infra Part III for the measures Revels failed to take.
41
Report of the International Law Commission on the Work of Its Fifty-Third Session, [2001] 2 Y.B. Int’l L.

Comm’n 34, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2) [hereinafter ILC, Fifty-Third Session].

42
Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 23 (April 9).
43
Id. at 17, 22.

6
 In the Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries

Commission (SRFC) case, the International Tribunal for the Law of the Sea held that a State is

responsible for an internationally wrongful act where it fails to comply with its “due diligence

obligation” to safeguard the rights of other parties by monitoring, adopting and enforcing rules

and measures regulating, and administering control over private vessels sailing under its flag and

engaged in illegal, unreported, and unregulated (“IUU”) fishing activities in the exclusive

economic zones of SFRC member States.44 In other words, the flag State was responsible for

failing to meet its “due diligence obligation” to take all necessary measures to prevent IUU

fishing by fishing vessels flying its flag.45

In the Responsibilities and Obligations of States Sponsoring Persons and Entities with

Respect to Activities in the Area case, the Seabed Disputes Chamber of the International

Tribunal for the Law of the Sea held that a State is liable for damage caused by private,

sponsored entities engaged in deep seabed mining if the States fails, through act or omission, “to

carry out responsibilities” under the UNCLOS.46 Specifically, a sponsoring State is liable for

failing to adopt laws and regulations and take administrative measures “reasonably appropriate

for securing compliance [with UNCLOS and related contracts and other instruments] by persons

under its jurisdiction.”47

44
Request for an Advisory Opinion Submitted by the Sub-Regional Fisheries Commission (SFRC), Case No. 21,

Advisory Opinion of Apr. 2, 2015, [2015] ITLOS Rep. 4, 41, 44.

45
Id. at 40.
46
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area,

Case No. 17, Advisory Opinion of Feb. 1, 2011, [2011] ITLOS Rep. 10, 55–58 [hereinafter Case No. 17].
47
Id. at 38–39.

7
 The conduct of the SEA Corporation need not be directly attributed to Revels for Revels

to be responsible for an internationally wrongful act. Revels committed an internationally

wrongful act by failing to perform its affirmative obligations under treaty and customary law to

prevent the SEA Corporation from harming or threatening the biodiversity of the Sea.

B. Revels acknowledged and adopted the wrongful conduct of the SEA Corporation as
its own.

Although the SEA Corporation’s activities in the Sea need not be attributable to Revels

for Revels to be responsible for an international wrongful act, the SEA Corporation’s wrongful

conduct is so attributable because Revels acknowledged and adopted the corporation’s conduct

as its own. The Articles on Responsibility of States for Internationally Wrongful Acts codify

customary international law principles of state responsibility. According to these articles, a State

is responsible for its internationally wrongful acts.48 An international wrongful act is an act or

omission attributable to a State that violates an international obligation of the State.49 Conduct is

attributable to a State “if and to the extent that the State acknowledges and adopts the conduct in

question as its own.”50 This is true even if (1) the State did not direct or control the private

conduct in question and (2) the private party did not exercise elements of government authority.51

A State “acknowledges and adopts” the conduct of a private party if it assumes responsibility for

that conduct.52 Where a State gives approval to the internationally wrongful conduct of a private

48
ILC, Fifty-Third Session, supra note 41, at 32
49
Id. at 34.

50
Id. at 26.
51
Id. at 52.
52
Id. at 53.

8
entity so as to perpetuate it, the conduct may be attributed to the State.53 Acknowledgement and

adoption may be express or inferred from the State’s conduct.54

Revels did not merely support or endorse the SEA Corporation’s harvesting of

Sargassum; it assumed responsibility and expressed approval for the SEA Corporation’s conduct

so as to perpetuate it. For example, Revels subsidized the Sargassum harvesting project to such

an extent that had the SEA Corporation not received the subsidy from Revels, the project would

not have occurred.55 Not only did Revels make the project possible, it has effectively taken

responsibility for the project by treating the project as a partial fulfillment of its NDC

commitments under the Paris Agreement.56 With a press release and report, Revels even

highlighted the government’s success at actively developing the State’s new renewable energy

program by subsidizing and supporting projects like the SEA Corporation’s harvesting project.57

If Revels is permitted to take credit for the “success” of the project, it should be held responsible

for any resulting internationally wrongful conduct. In sum, because Revels acknowledged and

adopted the SEA Corporation’s project as its own, Revels is directly responsible for the harm and

threat the project is causing to biodiversity of the Sea, including the Eel.

53
Id. at 52–53 (discussing United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), Judgment, 1980

I.C.J. 35 ¶ 74 (May 24)).

54
Id. at 53–54.
55
C. ¶ A18.

56
R. ¶ 14, 19.
57
See R. ¶ 16.

9
III. Revels violated international law as a result of the Sargassum harvesting project.

A. Revels violated its treaty obligations.

1. Revels violated its duty to promote the conservation and sustainable use of biological
diversity of the Sea as mandated by the CBD.

Revels failed to promote conservation and the sustainable use of the Sea as required by

the CBD58 by violating its obligations, including ensuring activities within and beyond national

jurisdiction “as far as possible and as appropriate” do not cause harm to the environment.59

Parties must cooperate to conserve biological diversity beyond national jurisdiction,60 regulate to

protect threatened species,61 identify threats to such species, 62 and when imminent danger exists

“initiate action to prevent or minimize such danger or damage.”63

Revels has failed to cooperate with Parties under the CBD by failing to work with

Alliguna towards conservation of the Sea, especially since Alliguna requested the end of the

harvesting project.64 Revels is harming a vital part of the Sea ecosystem because Sargassum

seaweed “provides essential habitat for a wide diversity of species, many of which are

58
CBD art. 8, supra note 21, at 149.
59
Id. art. 3, at 147.
60
Id. art. 5, at 147–48.
61
Id. art. 8(k)–(l), at 149.

62
Id. art. 7(b), at 148.
63
Id. art. 14(d), at 151.
64
See generally, R. ¶¶ 18–28.

10
endangered or threatened.65 The Sea is also “the only breeding location” for the “European and

American eels and is on the migration route of numerous other iconic and endangered species.”66

According to a report by CBD Parties, “[e]xtraction of Sargassum has the potential to pose a

direct threat to the Sargasso Sea ecosystem.”67 The Sea is an ecologically or biologically

significant marine area (“EBSA”) under the CBD.68 EBSA status of the Sea is legally significant

because the CBD is a legally binding treaty of which Revels is a party to.69 Revels allowed the

project to continue through regulatory inaction, thereby failing to protect the Sea ecosystem as

required by the CBD.

Revels knowingly violated its obligations under the CBD. As noted in Part II of this

Memorial, Revels is responsible for harvesting Sargassum in the Sea. An Environmental Impact

Assessment determined that the impacts on the marine biodiversity, including the Eel, were

uncertain.70 Nonetheless, Revels allowed the project to continue even though the CBD

community acknowledges Sargassum’s importance to the Sea’s habitat. Revels violated

65
See Sargasso Sea Alliance, Submission of Scientific Information to Describe Ecologically or Biologically

Significant Marine Areas 2, https://www.cbd.int/doc/meetings/mar/rwebsa-wcar-01/other/rwebsa-wcar-01-sargasso-

sea-alliance-02-en.pdf.
66
Id.; See also U.N., First Global Integrated Marine Assessment, ch. 50, 1–2 (2016),

http://www.un.org/Depts/los/global_reporting/WOA_RPROC/WOACompilation.pdf [hereinafter U.N.

Marine Assessment].
67
Id. at 17–18; see also U.N. Marine Assessment, supra note 66, at 1–2.
68
Ecologically or Biologically Significant Marine Areas: The Sargasso Sea, CHM (June 15, 2015),

https://chm.cbd.int/pdf/documents/marineEbsa/200098/4.
69
R. ¶ 7; CBD art. 7, supra note 21, at 148.
70
C. ¶ A17.

11
international law because it did not ensure the project would not cause harm to marine

diversity.71

Revels violated CBD obligations even though the extent of harm is yet unknown. The

CBD does not simply create a duty once harm occurs to biological diversity but obligates parties

to take preventive measures to ensure conservation and sustainable use of biological diversity of

the Sea.72

2. Revels violated its obligation to conserve migratory species, particularly the vulnerable
European Eel, under the CMS, CBD, and UNCLOS

Under the CMS, Parties must restore73 and conserve74 endangered migratory species to

satisfactory conservation standards. The Eel is protected by the CMS.75 Revels violated the

CMS by haphazardly diminishing a vital part of the Eel’s environment in a manner incompatible

with a legitimate endeavor to conclude and abide by Article IV Agreements.

Parties must “respect, preserve and maintain knowledge, innovations and practices of

indigenous and local communities embodying traditional lifestyles relevant for the conservation

and sustainable use of biological diversity.”76 Historically, large populations of the Eel thrived in

71
Sargasso Sea Alliance, supra note 65, at 3, 17–18; See also U.N. Marine Assessment, supra note 66.
72
See Sargasso Sea Alliance, supra note 65, at 3, 17–18; See also U.N. Marine Assessment, supra note 66.
73
CMS, art. V,.¶ 1, supra note 30, at 363.
74
Id. art. III, ¶ 4, at 361.
75
Id. art. II, at 360 ([Parties] shall endeavour to conclude Agreements covering the conservation and management

of migratory species included in Appendix II,” which includes the European Eel); see also U.N. Env’t, Convention

on Migratory Species, Certified Action on the European Eel (Anguilla anguilla), Oct. 2017,

https://www.cms.int/sites/default/files/document/cms_cop12_ca.12.1_european-eel_e.pdf.
76
CBD, art. 8(j), supra note 21, at 149.

12
Alliguna’s waters, and the Eel holds a prominent place in Alliguna’s culture, religion, and

history.77 Harming the Eel directly affects these communities in contravention of the CBD.

Revels is violating its obligations under UNCLOS by harvesting Sargassum. Parties

must conserve living resources of the high seas, cooperate with other States, take responsibility

for nationals who exploit national resources, protect and preserve the marine environment, and

act in good faith.78 “States whose nationals exploit identical living resources, or different living

resources in the same area, shall enter into negotiations with a view to taking the measures

necessary for the conservation of the living resources concerned.”79 Revels failed to conserve

vital living resources in the Sea and is not cooperating with other Parties.

The Eel migrates to the Sea to spawn, and the migrates across the Ocean.80 They

eventually travel to inland waters and continue to develop and grow.81 By subsidizing a major

Sargassum harvesting project in the Sea, Revels is negatively altering the ecological habitat of

the protected Eel.

B. The limiting language of the CMS does not justify Revels harvesting Sargassum.

Revels tries to circumvent Alliguna’s claims by citing the limiting language in CMS

Articles II and IV.82 However, the language of a convention must be read in the context of its

77
R. ¶ 4.
78
UNCLOS, art. 117–18, 192, & 300, supra note 32, at 441, 477, & 516.
79
Id. art. 118, at 441.

80
R. ¶ 3.
81
Id.
82
R. ¶ 21.

13
object and purpose.83 The purpose and object of the CMS are to promote conservation of

biodiversity84 and the protection of habitats.85 The principle of pacta sunt servanda dictates that

every convention be executed in good faith.86 This duty applies to any pactum or agreement

between parties.87 Both countries are Parties to the agreement and both articles use obligatory

language, including “shall,” thereby binding parties to the obligations under the CMS.88

C. Revels violated customary international law.

Revels violated customary international law, which Revels has made efforts in the past to

uphold. For example, high-level representatives from Revels attended the Rio+20 meetings.89

The Rio+20 outcome document “The Future We Want” provides States have a “[c]ommitment to

sustainable development and to ensuring the promotion of an economically, socially and

environmentally sustainable future for our planet and for present and future generations.”90

Additionally, harvesting Sargassum flouts the efforts being made to develop an international

83
Vienna Convention, art. 31, ¶ 1, supra note 25, at 340.

84
CMS art. II, ¶ 1, supra note 30, at 360.
85
Id.
86
Vienna Convention, art. 26, ¶ 1, supra note 25, at 340.
87
Godefridus J.H. Hoof, Rethinking the Sources of International Law, 75 (1983).
88
R. ¶ 8; See, e.g., CMS art. II, ¶ 3, supra note 30, at 360 (“Parties shall endeavour to conclude AGREEMENTS

covering the conservation and management of migratory species included in Appendix II.”) (emphasis added); id.

art. IV, at 362 (“Parties that are Range States of migratory species listed in Appendix II shall endeavour to conclude

AGREEMENTS where these would benefit the species and should give priority to those species in an unfavourable

conservation status.”) (emphasis added).

89
R. ¶ 12.
90
The Future We Want, Annex, ¶ I.2, G.A. Res. 66/288, P 206, U.N. Doc. A/RES/66/288, 1 (Sept. 11, 2012).

14
legally binding instrument under UNCLOS on the conservation and sustainable use of marine

biological diversity of areas beyond national jurisdiction.91 Revels also signed the Hamilton

Declaration showing the Revels understands the importance of preserving the Sea and its

habitat.92

Revels’s activities violate the precautionary principle and the duty to prevent

transboundary Harm.

1. Revels violated the precautionary principle.

The precautionary principle mandates States anticipate, avoid, and mitigate threats to the

environment.93 The precautionary principle is an established customary international law

principle94 requiring countries to avoid transboundary pollution, prevent pollution at the source,

minimize environmental damage, and reduce risk of harm.95 Measures must be taken even if

causal connections are not fully established by the scientific community.96 There must be a

potentially risky activity and the proponent of the activity bears the burden of proving that the act

91
See UNCLOS pmbl., art. 64, supra note 32, at 1271, 1282.
92
R. ¶ 11.
93
IUCN, Guidelines for Applying the Precautionary Principle 1 (2007),

http://cmsdata.iucn.org/downloads/ln250507_ppguidelines.pdf.
94
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area,

Case No. 17, Advisory Opinion of Feb. 1, 2011, 15 ITLOS Rep. 10, P 41, ¶ 135.

95
Daniel Bodansky, et. al., The Oxford Handbook of International Environmental Law 598 (2007).
96
Nicholas Ashford, et. al., World Health Org., Wingspread Statement on the Precautionary Principle 1 (1998),

www.who.int/ifcs/documents/forums/forum5/wingspread.doc.

15
does not pose a risk to the environment or human health.97 Here, each element is met because

harvesting Sargassum directly harmed the environment.98

2. Revels breached its duty to prevent transboundary harm.

Under the duty to prevent transboundary harm,99 States must keep activities within their

jurisdiction or control from causing damage to the environment in other States or outside the

boundaries of national jurisdiction.100 The duty is a recognized principle of customary

international law.101 This duty is breached if there is a physical connection between the activity

concerned and the damage caused, human causation, harm that meets a level of gravity that

demands legal action, and transboundary movement of injurious effects.102 In the Corfu

Channel case, the ICJ articulated the general the principle that every State is obliged not to

knowingly allow its territory to be used to commit acts against the rights of any other State.103

Here, the elements of the duty to prevent transboundary harm are met. Harvesting

Sargassum physically depleted vital portions of the Eel’s habitat and was a direct cause of the

harm. The harm rises to a level of gravity that it demands legal action and the injurious effects

cross boundaries because the Eel is a migratory species.

97
Bodansky, supra note 95, at 598.
98
Id.
99
U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N.

Doc. A/CONF.151/26/Rev.1, Principle 2 (Aug. 12, 1992).

100
Id.

101
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, 19, ¶ 29 (July 8).
102
Xue Hanqin, Transboundary Damage in International Law 4 (2003).
103
Corfu Channel (U.K. v. Alb.), Judgment, 1949 I.C.J. 23 (April 9).

16
 D. Revels’s failure to comply with its obligations is not justified under international
law.

Revels argues its conduct is allowed under the freedom of the high seas under

UNCLOS104 and that harvesting Sargassum is justified by mitigating climate change pursuant to

its obligations under the Paris Agreement.105 Revels also argues Alliguna has shown no causal

link between harvesting Sargassum and harm to the Eel. 106 However, each of these arguments

fails, as outlined below.

1. The freedom of the high seas granted to States under UNCLOS is limited and does not
apply to situations that violate other sections of UNCLOS.

The freedom of the high seas granted to States under UNCLOS is limited. Damaging the

marine resources and biodiversity of the Sea goes beyond what is permitted on the high seas and

violates UNCLOS.107 The freedom of the high seas is counter-balanced with the duty to

conserve “living resources of the high seas,”108 protect and preserve the marine environment,109

cooperate with other States to conserve and manage living resources in the high seas,110 and

104
R. ¶ 21.
105
R. ¶¶ 19, 23.
106
R. ¶ 23.
107
See, e.g., UNCLOS, art. 117–18, 192, & 300, supra note 32, at 441, 477, & 516.

108
Id. art. 117, at 441.
109
Id. art. 192, at 477.
110
Id. art. 118, at 441.

17
“fulfil in good faith the obligations assumed under this Convention.”111 Revels’s argument goes

against the spirit of UNCLOS to protect living resources and marine environments.112

2. Revels cannot hide behind its climate change mitigation obligations because the
Sargassum harvesting project violates the Paris Agreement and CMS Resolutions.

Revels argues the precautionary principle weighs in favor of continuing the renewable

energy project to help mitigate climate change.113 However, Revels cannot hide behind Paris

Agreement obligations if it harms another country, the Sea ecosystem, and the Eel. The Paris

Agreement prohibits harming the environment in the process of developing renewable energy

because increased environmental harm cuts against the very spirit of the agreement.114 For

example, the Preamble notes “the importance of ensuring the integrity of all ecosystems,

including oceans, and the protection of biodiversity.”115 Additionally, Article 2 states the

“Agreement, in enhancing the implementation of the [UNFCCC], including its objective, aims to

strengthen the global response to the threat of climate change, in the context of sustainable

development.”116 While Revels is encouraged to take measures to mitigate climate change, the

Paris Agreement does not justify the Sargassum harvesting project, an instance of unsustainable

development that violates the integrity of the Sea ecosystem and its biodiversity.

111
Id. art. 300, at 516.
112
See id., art. 117–18, 192, & 300, at 441, 477, & 516.
113
R. ¶ 19.
114
See Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 13, 2015, in Rep.

of the Conference of the Parties on the Twenty-First Session, U.N. Doc. FCCC/CP/2015/10/Add.1, pmbl. (2016)

[hereinafter Paris Agreement].

115
Id.
116
Id. art. 2 (emphasis added).

18
 Revels’s argument also contravenes its obligations under CMS Resolutions 11.27 and

12.21.117 Resolution 11.27 recognizes the importance of renewable energy sources but expresses

concern with the effects exploiting renewable energy can have on migratory species, such as the

Eel:118

Recognizing also that increased use of technologies to exploit renewable energy

may potentially affect many migratory species listed by CMS and other legal
frameworks, and concerned about the cumulative effects of such technology on the
movement of migratory species, their ability to utilize critical staging areas, the loss
and fragmentation of their habitats, and mortality from collisions with
infrastructural developments;119

Renewable energy projects must be “undertaken in such a way that negative impacts on

migratory species are avoided.”120 CMS Resolution 12.21 further elaborates on Parties’ duty to

have an action plan to avoid damage to migratory species in the process of climate change

mitigation.121

Revels attempts to argue these resolutions are not binding, but Revels cannot avoid its

obligations by arguing that the agreements are not compulsory.122 Alliguna and Revels

consented to these conventions and agreements on the first year that they opened for signature,123

117
See CMS, Res. 11.27, P 3.3, UNEP/CMS/Resolution 11.27 (4-9 Nov. 2014) (renewable ocean energy)

[hereinafter CMS Res. 11.27]; CMS, Res. 12.21, P 9, UNEP/CMS/Resolution 12.21 (15 Dec. 2017) (climate change

and migratory species) [hereinafter CMS Res. 12.21].

118
CMS Res. 11.27 supra note 117.
119
Id.
120
Id.

121
CMS Res. 12.21 supra note 117.
122
R. ¶ 21.
123
C. ¶ A4.

19
and fully participated in all of the Conferences and Meetings of the Parties since then.124 Revels

never objected to any of the resolutions of the parties. Though Decisions of the Conference of

Parties are not generally binding,125 they set forth an authoritative interpretation of international

agreements.126 Revels cannot now dispute the resolutions of the Conference of the Parties.127

3. Harvesting Sargassum caused harm.

Revels argues there is no demonstrable negative impact from the biofuels project on the

Sea or the Eel,128 but harm does not need to be serious or substantial in order to be actionable.129

Destroying part of the Eel’s spawning habitat certainly will harm the species. It is sufficient that

the harm be susceptible of being measured by factual and objective standards.130 Due to the

highly protected status of the Eel,131 the fact it is listed as a “critically endangered species,”132 and

the steep declines in Eel populations,133 the damage is objectively shown by the destruction of the

124
Id. at ¶ A5.

125
Jutta Brunnée, COPing with Consent: Law-Makin Under Multilateral Environmental Agreements, 15 Leiden J.

Int’l. 21 (2002).
126
Philippe Sands, et. al., Principles of International Environmental Law 109 (2012); Burrus M. Carnahan, Treaty

Review Conferences, 81AJIL 226, 229 (1987).

127
Id.
128
R. ¶ 19.
129
See ILC, Fifty-Third Session, supra note 41, at 152, ¶ 4.
130
Id.

131
The European eel is listed on Appendix II of CMS, and both countries are Range States for the species. R. ¶ 8.
132
R. ¶ 3.
133
Id.

20
habitat upon which the species so importantly relies. Revels directly harmed the Eel by harming

its environment. The extinction of the Eel is not necessary to prove harm.

Revels further argues the Eel has been in decline for years, Alliguna has failed to describe

any causal link between the SEA Corporation’s initiative and any detriment to the species,134 and

that Alliguna is harming Eel itself by its hydropower facilities.135 However, Revels cannot avoid

liability by merely shifting blame to Alliguna or the preexisting decline in populations especially

when it is a party to multiple treaties which create an affirmative duty to protect the Eel.

134
R. ¶ 23.
135
R. ¶ 19.

21
 CONCLUSION AND PRAYER FOR RELIEF

Applicant, the Federal States of Alliguna, respectfully requests the ICJ to adjudge and

declare that:

1. The ICJ has jurisdiction to determine the present dispute.

2. The Republic of Revels is responsible for the internationally wrongful conduct at issue.

3. The Republic of Revels violated international law through the Sargassum harvesting

project it supported, subsidized, and failed to regulate, to the detriment of European eel

populations and other Sargasso Sea biodiversity.

RESPECTFULLY SUBMITTED,

AGENTS OF THE APPLICANT

22