Team code- SIM 06

24THANNUAL STETSON INTERNATIONAL ENVIRONMENTAL

MOOT COURT COMPETITION

MEMORANDUM ON BEHALF OF APPLICANT

 IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

QUESTION RELATING TO

REINTRODUCTION OF BEARS

GENERAL LIST NO. 24

FEDERAL STATE OF ARCTOS

v.

REPUBLIC OF RANVICORA

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANT

 TABLE OF CONTENTS

TABLE OF CONTENTS...............................................................................................................I

LIST OF ABBREVIATIONS.....................................................................................................IV

INDEX OF AUTHORITIES........................................................................................................V

STATEMENT OF JURISDICTION.........................................................................................IX

STATEMENT OF FACTS...........................................................................................................X

ISSUES PRESENTED...............................................................................................................XII

SUMMARY OF PLEADINGS................................................................................................XIII

PLEADINGS.............................................................................................................................XIV

I. THAT THE REPUBLIC OF RANVICORA VIOLATED INTERNATIONAL

LAW WITH RESPECT TO ITS GREY BEAR REINTRODUCTION PROJECT..........XIV

A. REINTRODUCTION: RANVICORA VIOLATED CUSTOMARY AND CONVENTIONAL

INTERNATIONAL LAW...............................................................................................XIV

1. The project is not a mandate under International law...............................................XIV

i. The Convention on Biological Diversity...............................................................XIV

ii. Conservation of Natural Habitats and of Wild Fauna and Flora........................XIV

2. Grey bears were not released at their native territory................................................XV

i. Ranvicora projects amount to introduction of a species........................................XV

ii. Native territory of a species..................................................................................XVI

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 3. Principle of prevention was violated........................................................................XVI

i. Ranvicora should have informed and consulted with Arctos..............................XVII

ii. Ranvicora violated Recommendation 158 (2012) of Bern convention................XVII

iii. Ranvicora did not comply with the IUCN guidelines.........................................XVIII

B. IAS: THAT GREY BEAR IS A NON-NATIVE AND INVASIVE ALIEN SPECIES IN ARCTOS.

XX

1. Ranvicora violated its obligation under the Bern Convention..................................XXI

i. Ranvicora breached Article 11 of the Bern Convention.....................................XXII

ii. Ranvicora did not comply with Recommendation 159 (2012) of Standing

Committee to the Bern Convention............................................................................XXIII

2. Trans-location migratory species may become invasive.......................................XXIII

C. THAT RANVICORA IS LIABLE FOR TRANSBOUNDARY HARM.................................XXIV

1. Violation of Principle of “Good Neighborliness”...................................................XXV

i. Activities caused Significant Transboundary Harm..........................................XXVI

2. Violation of Due Diligence Principle....................................................................XXVI

i. No assessment with Arctos................................................................................XXVII

ii. Efficacious alternative of EIA..........................................................................XXVIII

3. Violation of Precautionary Approach.................................................................XXVIII

4. Principle of State Responsibility............................................................................XXIX

i. Compound 'Primary' Obligation".......................................................................XXX

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II. THE FEDERAL STATES OF ARCTOS DID NOT VIOLATE

INTERNATIONAL LAW WITH RESPECT TO ITS RESPONSES TO RANVICORA’S

REINTRODUCTION OF GREY BEARS............................................................................XXX

A. ARCTOS DO NOT HOLD DUTY TO PROTECT REINTRODUCED POPULATION..............XXXI

1. Did not violate CMS Resolution 12.21..................................................................XXXI

i. The binding nature of a COP decision and resolutions......................................XXXI

ii. The Federal states of Arctos acted in accordance to resolution 12.21..............XXXI

2. Did not contravene Recommendation No. 142 (2009) of the Standing Committee

XXXII

B. ARCTOS IS NOT LIABLE FOR TRANSBOUNDARY HARM.......................................XXXIII

1. No Significant Damage.......................................................................................XXXIII

i. No significant Damage to environment............................................................XXXIV

2. Arctos has not breached its duty under Treaty Obligations................................XXXIV

i. Arctos has not Violated CMS...........................................................................XXXIV

ii. Arctos has not violated CBD............................................................................XXXVI

iii. Arctos has not violated Bern Convention......................................................XXXVIII

C. RANVICORA NEED TO MAKE NECESSARY REPARATION TO ARCTOS FOR DAMAGE

CAUSED......................................................................................................................XLI

1. Levels of reparation...................................................................................................XLI

2. Conventions and conferences prohibits damage to livelihood and biodiversity.......XLI

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 i. CBD prohibits damage to biodiversity..................................................................XLI

ii. Conferences binds the contracting parties to cause such damage......................XLII

3. State responsibility on compensation and end to reintroduction project.................XLII

4. Principle of International liability..........................................................................XLIV

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 LIST OF ABBREVIATIONS

& And

¶ Paragraph

AP Additional Protocol

Art Article

Ed. Edition

EoC Elements of Crime

GROW Grand Road of the World

ICC International Criminal Court

ICRC International Committee of Red Cross

ICTR International Criminal Tribunal of Rwanda

ICTY International Criminal of the Former Yugoslavia

IHL International Humanitarian Law

J. Journal

KLF Kalochistan Liberation Front

No. Number

Para Paragraph

PC/PTC Pre-Trial Chamber

UDHR Universal Declaration of Human Rights

UN United Nations

v. Versus

Vol. Volume

INDEX OF AUTHORITIES

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STATUTES

Statute of the International Court of Justice, April 18, 1946, 313 U.N.T.S. 99

TREATIES AND CONVENTIONS

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79. (Hereinafter CBD)

Piero Genovesi, CBD, European strategy on invasive alien species, 5 (2004).

CBD COP 6, Decision VI/23

CBD‘IAS, Status, Impacts and Trends of Alien Species that Threaten Ecosystems, Habitats

and Species’ above n 126, 8.

COP 6 Decision VI/7

Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention,
19.IX.1979)…….
 Guiding Principles
 Appendix
 Recommendation no. 77
 Recommendation No. 158 (2012).
 Recommendation No. 142 (2009) of the Standing Committee
 Recommendation No. 99 (2003)
 Recommendation No. 142 (2009) 
CMS
Strategic Plan, 2006-2014 (UNEP/CMS/Conf.10.22).
11th meeting of COP on Review of the impact of invasive alien species on species protected
under CMSUNEP/CMS/COP11/Inf.32.
UNEP/CMS/Resolution 11.28¶1 (2 December 2014).
CMS,Secretariat provided by UNEP Twelfth Meeting of the CMS Scientific Council
Glasgow, Scotland, United Kingdom, 31 March-3 April 2004 CMS/ScC12/Doc.8.
Resolution 12.21

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 Resolution 3
Resolution 7.2
Resolution 11.27
The Rio Declaration On Environment And Development (1992)…………….

United Nations Framework Convention on Climate Change, 9 May 1992, 1771 U.N.T.S.107

[UNFCCC],………………

Vienna Convention on the Law of Treaties (VCLT), 1969.........

UN conference on Human Environment at Stockholm, 1972

UNITED NATIONS AND OTHER INTERNATIONAL DOCUMENTS

Council Directive 92/ 43/EEC of 21 May 1992.

De Klemm, C., & Shine, C., Biological diversity conservation and the law: legal

mechanisms for conserving species and ecosystems, IUCN 18 (1993).

EU Habitats Directive (Articles 1 to 7 and 9 to 16).

IUCN, Guidelines for Reintroductions and Other Conservation Translocations

IUCN Policy Recommendations on the Sixth meeting of the Conference of the Parties tothe

Convention onBiological Diversity (COP6) at 5, April 2002 IUCN,

Sun, Lin, and Lal Kurukulasuriya. UNEP's New Way Forward: Environmental Law and

Sustainable Development. [Nairobi, Kenya]: United Nations Environment Programme, p.

73, at p. 86 (1995).

United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev. 1,

16 June 1972,

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Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/5/Rev.1 (16

June 1992)

Report of the International Law Commission on the Work of Its Thirty Second Session 'I'll

26-33, U.N. Doc. N35/10 (1980), reprinted in [1980] 2 Y.B

Prevention of Transboundary Harm from Hazardous Activities, [2001] 2 Y.B. Int’l L.

Comm’n 146, 148 U.N. Doc. A/CN.4/SER.A/2001/Add.1 pt. 2.

Report of the International Law Commission [“ILC”], Articles on Prevention of

Transboundary Harm fromHazardous Activities, U.N. GAOR, U.N .Doc A/56/10., (2001)

International Law Commission (ILC), Draft Articles on Prevention of Transboundary Harm

fromHazardous Activities, 2001 with Commentaries, Doc. A/56/10 (2001), Art. 3, ¶7.

Dommelen, A. van, "The Precautionary Principle: Dealing with controversy."

Biotechnology and Development Monitor, No. 43, 8-11 (2000),

https://www.cbd.int/doc/articles/2002-/A-00188.pdf

Guidelines For Applying The Precautionary Principle To Biodiversity Conservation And

Natural Resource Management As approved by the 67 th meeting of the IUCN Council 14-

16 May 2007.

A/10010/Rev.1 Report of the International Law Commission on the work of its twenty-

seventh session, 5 May - 25 July 1975.

A/9010/Rev.1; Report of the International Law Commission on the work of its twenty-fifth

session, 7 May - 13 July 1973, Official Records of the General Assembly, Twenty-eighth

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 session, Supplement No. 10, Extract from the Yearbook of the International Law

Commission:- 1973 , vol. II, pp.170.

Responsibility of States for Internationally Wrongful Acts

Third Report on International Liability for Injurious Consequences Arising out of Acts Not

Prohibited by International Law, UN Doc. A/CN.4/360 and Corr. 1 (1982), sec. 5, Art. 2. I

Fourth Report on International Liability for Injurious Con- sequences Arising out of Acts

Not Prohibited by International Law, UN Doc. A/CN.4/373 and Corr. 1 (1983)

J. Barboza, ‘‘Sixth Report on International Liability for Injurious Consequences Arising out

of Acts not Prohibited by International Law,” March 15, 1990, UN Doc. A/CN.4/428

(Article 2(b) and (e)), reproduced in Yearbook of the ILC (1990), vol. II (Part One)

Report of the International Law Commission on the Work of Its Thirty-Seventh Session en:

108-163, U.N. Doc. N40/10 (1985)

JUDICIAL DECISIONS

Asian Agricultural Products Ltd v. Republic of Sri Lanka, Final Award, 27 June 1990, ICSID

Case no. ARB/87/3.

Commission v Netherlands, Case C-339/87, ECR p.851, §28, 15th March, 1990.

Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica),

Judgment, ICJ Reports (2015) 1.

Corfu.Channel.(U.K..v..Alb.),.1949.I.C.J..4.

Daubert v. Merrel Dow Pharmaceuticals Inc: (1993) 113 S.ct. 2786.

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 Factory at Chorzow {Ger. v. Pol.), 1928, P.C.I.J. (ser. A) No. 17, at 27-28

Legality of the Threator Use of Nuclear Weapons ,Advisory Opinion, I.C.J. 226 (1996)

Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J., 162.

Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J., 162.

R v. Secretary of State2001 UKHL 23.

S.S. Lotus (France v. Turkey) 1927 PCIJ Series A

United States of America v. Venezuela120 US 479 (1887)

United States v. Arjona, 120 US 479 (1887).

Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224.

BOOKS AND COMMENTARIES

"La theorie de la legitimedefense", 3 ACADEMIE DE DROIT INTERNATIONAL,

RECUEIL DES COURS 691-860 (1934).

BALLENTINE'S LAW DICTIONARY 1178 (3d ed. 1969).

C. Meine, in Encyclopedia of the Anthropocene, 2018, Ecological Restoration, 207 (2018).

HARNEK, Animals in the Anthropocene: Critical perspectives on non-human futures, 51

(2015).

Ian Brownline, Principles of Public International Law, 6th Edition.

M. A. Weightman, Self-Defense in International Law, Virginia Law Review, Vol. 37, No. 8

(Dec., 1951)

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 O. Schachter, International Law in Theory and Practice (Dordrecht, MartinusNijhoff,

1991), pp. 366--368.

OPPENHEIM’S INTERNATIONAL LAW: PEACE 23 (Sir Robert Jennings et al eds., 9th

ed. 1992).

Paul A. Rees, The Laws Protecting Animals and Ecosystems, 249 (2017).

Peter Wetterstein, ed., Harm to the Environment: The Right to Compensation and the

Assessment of Damages (Clarendon Press, 1997).

Roe, D., Dalal-Clayton, B., and Hughes. R., A Directory of Impact Assessment Guidelines.

International Institute for Environment and Development. London. (1995).

ShahiraSamy, Reparations to Palestinian Refugees: A Comparative Perspective, Pg. 40.

The Alabama Arbitration, reported in Moore, International Arbitrations, vol. I, p. 495, at

¶¶572-573.

Volker Röben, Institutional Developments Under Modern International Environmental

Agreements, 4 MAX PLANCK UNYB 364, 372 (2000).

Xue Hanqin, Transboundary Damage in International Law, at 4 (2003).

ARTICLES, ESSAY AND JOURNALS

Donna E. Arzt, The Right to Compensation: Basic Principles Under International Law,

Ottawa, July 14-15, 1999.

Franz XaverPerrez, The Relationship between “Permanent Sovereignty” and the obligation

not to case transboundary environmental damage, 26 ENVIRONMENTAL LAW 1187

(1996).

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 Manchester, Sarah J., & Bullock, J. M. The impacts of non-native species on UK

biodiversity and the effectiveness of control,845 Journal of Applied Ecology,  Table 10.

(2000).

Rees, Is there a legal obligation to reintroduce animal species into their former habitats, 218

(2001).

SompongSucharitkul, State Responsibility and International Liability Under International

Law, 1996.

Stanley, Mark & Fa, John E., Reintroductions from zoos: a conservation guiding light or a

shooting star? (2007).

Stuart K. Allison, What "Do" We Mean When We Talk About Ecological Restoration?

Ecological Restoration vol. 22, pp. 281-286 (2004).

The ecological and socio-economic impacts of IAS on island ecosystems, Pg. 12 (2003).

Trouwborst, Aussie Jaws and International Laws: The Australian Shark Cull and the

Convention on Migratory Species, Cornell Intl L. Jour. Online, vol.2, 2014, 42

MISCELLANEOUS DOCUMENTS

Ingrid E. Newkirk, Animal Rights Uncompromised: Predator-Reintroduction Programs,

PETA, 2019.

European Court reports , C-510/99 (Sixth Chamber) of 23 October 2001.

European Union (EIA Directive 85/337/EEC.

SEA Directive (COM 96/511 and COM 99/73).

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Recommendation Number R (85) 15 (1985) of the Council of Europe Committee of

Ministers to Member States.

Habitats Directive (92/43/CEE), Annex II, IV.

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 ISSUES PRESENTED

I. WHETHER THE REPUBLIC OF RANVICORA VIOLATED INTERNATIONAL

LAW WITH RESPECT TO ITS GREY BEAR REINTRODUCTION PROJECT.

II. WHETHER THE FEDERAL STATES OF ARCTOS DID NOT VIOLATE

INTERNATIONAL LAW WITH RESPECT TO ITS RESPONSES TO RANVICORA’S

REINTRODUCTION OF GREY BEARS.

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 STATEMENT OF JURISDICTION

Federal State of Arctos and the Republic of Ranvicora submit the following dispute to the

International Court of Justice (“ICJ”). Pursuant to Article 40, paragraph 11 of the Statute of the

ICJ, States may bring cases before the Court “either by the notification of the special agreement

or by a written application addressed to the Registrar.” Statute of the International Court of

Justice, Art. 40(1), T.S. No. 933 (1945). The parties signed a special agreement to submit their

dispute to the Registrar of the Court. See Special Agreement Between the Federal State of Arctos

and the Republic of Ranvicora for Submission to the International Court of Justice of Differences

Between Them Concerning Reintroduction of Bears, signed at Barcelona, Spain, on 11 July

2019.2 The Registrar acknowledged receipt of the joint notification on 15July 2019.3

1
Cases are brought before the Court, as the case may be, either by the notification of the special agreement or by a

written application addressed to the Registrar. In either case the subject of the dispute and the parties shall be

indicated.
2
[R.] Pg.2

3
Id.

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 STATEMENT OF FACTS

I. PRE- REINTRODUCTION PHASE

The Federal States of Arctos and the Republic of Ranvicora are neighbouring sovereign

states located on the continent of Suredia in the Northern Hemisphere. 4The grey bear went

extinct in Ranvicora in 1963 due to overhunting and habitat destruction.5There are no historic or

fossil records of grey bear presence in Arctos.6

II. THE REINTRODUCTION STAGE

Owing to this extinction, the government of Ranvicora planned a reintroduction project

for bringing the bears back to their country. 7The Government of Ranvicora did not inform or

consult with Arctos about potential impacts of the reintroduction project on Arctos. 8 The first

phase was initiated on 23rd day of March, 2013 with a reintroduction of 20 grey bears in the

northern part of Ranvicora very close to the border with Arctos.9

III. POST REINTRODUCTION CONTROVERSY

4
[R.] ¶1.

5
[R.] ¶10.

6
Id.

7
[R.] ¶12.

8
Id.

9
[R.] ¶14.

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 On 19 September 2017, a grey bear was spotted in Arctos near Arctos-Ranvicora

border.10 Bears for the next several months, killed many animals in Arctos and went on sniffing

out the nests and consuming the eggs of the ‘Trouw borst tern’, an endangered endemic species

in Arctos.11 Aggrieved by this, on 9th August 2018, Arctos forwarded a diplomatic note to the

government of Ranvicora stating their concerns.12 Ranvicoran refused to cooperate with Arctos

or provide any compensation for the damage caused.13 Acting under a state of necessity, Arctos

took some measures to keep the wild bears from their country. 14On 22 April 2019, a female grey

bear mauled two children, one of which died as a result of the attack.15

IV. THE UNSETTLED DISPUTE

As a result of this discord, the two countries entered into a Special Agreement to institute

proceedings in the International Court of Justice (ICJ).16

10
[R.] ¶16.

11
[R.] ¶17.

12
[R.] ¶18.

13
[R.] ¶19.

14
[R.] ¶20.

15
[R.] ¶21.

16
[R.] ¶24.

P A G E XVII | MEMORIAL ON BEHALF OF THE APPLICANT

 SUMMARY OF PLEADINGS

The Republic of Ranvicora violated international law with respect to its bear reintroduction

project by not complying with its obligations under CBD, CMS, the Bern Convention and the

IUCN guidelines as it is an Invasive Alien Species in Arctos. Also, it failed to abide by the

principles of customary international law by causing trans-boundary harm. Therefore, Ranvicora

shall make necessary reparation for the loss incurred by the aggrieved state.

II

The Federal States of Arctos did not violate international law regarding its responses to the

reintroduction project as it does not hold any duty to protect the reintroduced population. Also, it

acted under a state of necessity to protect its citizens and property from the attacks of Ursus

smokeysius. Therefore, Arctos adhered to the treaty obligations as there was no significant

damage caused to Ranvicora.

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 PLEADINGS

I. THAT THE REPUBLIC OF RANVICORA VIOLATED INTERNATIONAL LAW WITH RESPECT TO

ITS GREY BEAR REINTRODUCTION PROJECT.

II. REINTRODUCTION: RANVICORA VIOLATED CUSTOMARY AND CONVENTIONAL

INTERNATIONAL LAW.

III. THE PROJECT IS NOT A MANDATE UNDER INTERNATIONAL LAW.17

iv. The Convention on Biological Diversity18

The Contracting Parties should prevent bringing in those alien species into

existence which threaten ecosystems, habitats or species.19

v. Conservation of Natural Habitats and of Wild Fauna and Flora20

Convention replaces original obligation to encourage the reintroduction of native

species21 has by an obligation simply to study the desirability of reintroducing them. 22 No

mention is made in the directive of any specific obligation to reintroduce them.23

17
Newkirk, Animal Rights Uncompromised: Predator-Reintroduction Programs, PETA, 2019.

18
Convention on Biological Diversity, Preamble, 1992, 1760 U.N.T.S. 79 [CBD].

19
Id. at Article 8(h).

20
Council Directive 92/ 43/EEC of 21 May 1992.

21
Rees, The Laws Protecting Animals and Ecosystems, 249 (2017).

22
HARNEC, Animals in the Anthropocene: Critical perspectives on non-human futures, 51 (2015).

23
Article 22, Section 14 (1) of the Act, Britain Wildlife and Countryside Act 1981, R v. Secretary of State 2001

UKHL 23.

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 In a federal court ruling24 Downes J. declared that a programme to reintroduce

wolves Canis lupus to Yellowstone National Park and central Idaho was illegal 25 and

ordered for their removal.26

VI. GREY BEARS WERE NOT RELEASED IN THEIR NATIVE TERRITORY.

i. Ranvicora’s project amount to introduction of a species.27

Where a species is placed in an ecosystem where it has not previously existed, 28

the term `introduction' is more precise. 29 The Habitats Directive 30 requires the careful

regulation of the introduction of non-native species 31 also, such introductions be

prohibited if they prejudice natural habitats,32 or wild fauna.33 The definition of a native

species34 is critical that whether a State should encourage the reintroduction of a species

or prohibit it.35

24
Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224 (2000).

25
Id. at Order 2.

26
Id. at U.S.C. § 706.

27
ISSG, Introduction to invasive alien species, 11 (2005).

28
Shine, Biological diversity conservation and the law: legal mechanisms for conserving species and ecosystems,

IUCN 18 (1993).
29
Id. at Pg. 20.

30
EU Habitats Directive (Directive 92/43/EEC) 1992, Articles 1 to 7 and 9 to 16.

31
Manchester, The impacts of non‐native species on UK biodiversity and the effectiveness of control,845  Journal of

Applied Ecology,  Table 10. (2000).

32
Convention on the Conservation of European Wildlife and Natural Habitats, (Bern Convention), UKTS No. 56

(1979), Recommendation no. 77.

33
Id. at Article 11(2)(b).
34
CBD Glossary of Terms, definition.

35
Genovesi, CBD, European strategy on invasive alien species, 5 (2004).
P A G E XX | MEMORIAL ON BEHALF OF THE APPLICANT
 ii. Native territory of a species36

Neither the term native species nor the expression native to their territory are

defined in the Bern Convention.37 Interpretation of ‘native’ suggests, once a species

becomes extinct in a Member State it should no longer be considered native and

reintroduction must be regulated,38 and may even be prohibited if considered

undesirable.39 In reintroducing species we need to ask what it is that we seek to re-

establish.40 We cannot recreate ecosystems that existed in the past, so there is no point in

putting back the extinct species.41

III. PRINCIPLE OF PREVENTION WAS VIOLATED.

i. Ranvicora did not consulted with Arctos.42

Bern Convention 43
provides that a study is first made in the light of the

experiences of other Contracting Parties for establishing effectiveness of

reintroductions.44

36
[R.] ¶18.

37
Rees, Is there a legal obligation to reintroduce animal species into their former habitats, 218 (2001).

38
European Court reports , C-510/99 (Sixth Chamber) of 23 October 2001.

39
Id. at Pg. 219.

40
Meine, Encyclopedia of the Anthropocene, 2018, Ecological Restoration, 207 (2018).

41
Allison, What "Do" We Mean When We Talk About Ecological Restoration? 281-286 (2004).

42
[R.] ¶12.

43
Bern Convention on the Conservation of European Wildlife and Natural Habitats , 19 September 1979, U.K.T.S.

No. 56.
44
Id. at Article 11(2).

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 Council of Europe Committee of Ministers to Member States 45 lays down criteria

for responsible reintroductions.46 It recommends to analyse past and present ecological

characteristics of the area concerned,47 propose remedies for the causes of extinction, 48

evaluate chances of success and possible repercussions,49 prohibit where adverse effects

on the ecosystem is feared,50 inform the local population, interested groups 51

and inform

the government of neighbouring and concerned countries of reintroduction projects.52

ii. Ranvicora violated Recommendation 158 (2012) of Bern convention.53

It provides to follow IUCN Guidelines,54 recommends risk assessments with the

specification of clear measures of performance55 and consider alternative solutions before

starting a translocation.56 It compels to assess the full range of possible hazards of

translocation, including any transboundary impact, risks and even the unintended

45
Recommendation Number R (85) 15 (1985) of the Council of Europe Committee of Ministers to Member States.

46
Stanley, Reintroductions from zoos: a conservation guiding light or a shooting star? (2007).

47
Recommendation Number R (85) 15 (1985) of the Council of Europe Committee of Ministers to Member States

recommendation 1(b).
48
Id. at Recommendation 1(c).

49
Id. at Recommendation 1(f).

50
Id. at Recommendation 3.

51
Id. at Recommendation 4.

52
Id. at Recommendation 8.

53
[R.] ¶18.

54
Guidelines for Reintroductions and Other Conservation Translocations, 2012.

55
Bern Convention, supra 43, standing committee Recommendation No. 158 (2012).

56
Id. at Preamble.

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 damage.57 Also, if inadequate information is available to assess risks, the precautionary

principle58 should be applied avoiding the translocation.59

iii. Ranvicora did not comply with the IUCN guidelines

a. Mere guidance and should not be construed as promoting conservation translocation over

any other form of conservation action.60 Further, specific elements should not be selected

in isolation justifying translocation 61 because of anticipated developments appreciate

uncertainty of ecological knowledge,62 and to understand risks behind any translocation.

States must abide with long-term commitments.63

b. Introductions of species outside their indigenous range can cause extreme, negative

impacts, and are often difficult to foresee.64

c. Exit strategy, for any undesired consequences should be an integral part of any

translocation plan.65

d. Suitable habitat should meet the species total biotic and abiotic needs for all life stages. 66

Habitat suitability includes assurance that subsequent movements of organisms, are

57
Id. at Recommendation 3.

58
Daubert v. Merrel Dow Pharmaceuticals Inc: (1993) 113 S.ct. 2786.

59
Bern Convention, supra 43, Recommendation 4.

60
IUCN, Guideline Section 1.

61
Id. at Section 1 ¶5.

62
Id. at Section 1 ¶7.

63
Id. at Annexure 1.

64
Id. at Section 3.

65
Id. at Section 4.

66
Id. at Section 5.

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 permitted in the affected areas.67 Human communities around the release area have

legitimate interests in reintroduction.68

e. Regulatory compliance provides needs to meet regulatory requirements (permitted and

non-permitted land-uses) at all levels.69

f. In Cross border movements,70 translocation design should be compatible with the

permissive and regulatory requirements of all affected jurisdictions.71

g. Prevention of environmental harm to neighbouring countries and cooperation to manage

risks should be promoted.72 States should carefully consider risks to neighbouring

territories.73

IV. IAS: THAT GREY BEAR IS A NON-NATIVE AND INVASIVE ALIEN SPECIES IN ARCTOS.

‘IAS’ means an alien species whose introduction or spread threaten biological diversity. 74

Non-native refer to alien or Non-indigenous species.75 The risk of introducing a species with a

propensity to become invasive into an ecosystem outweighs the benefit of translocation and
67
Id. at Annex 5.1.2.

68
Id. at Section 5.2 ¶2.

69
Id. at section 5.3.

70
Id. at section 5.3 ¶1.

71
Id. at Section 5.3 ¶7.

72
Id. at Section 6.

73
Id. at annexure 6.1.

74
CBD, Decision VI/23 U.N.DOC.UNEP/CBD/COP/6/20 (2002) Alien Species that Threaten Ecosystems, Habitats

or Species, Annex, footnote 57.

75
Decision VI/23 Adopted by the Conference of the Parties to the Convention on Biological Diversity at Its

Eleventh Meeting, U.N. DOC. UNEP/CBD/COP/6/20 (27 May 2002).

P A G E XXIV | MEMORIAL ON BEHALF OF THE APPLICANT

therefore CBD requires its Parties to 'prevent the introduction of 76, control or eradicate those

alien species which threaten ecosystems, habitats and species.77 The CBD COP adopted a

specific Decision and Guiding Principles78 to help Parties implement this requirement.

Adverse impact79 occasioned by IAS can take the form of competition to native species,

the transmission of disease or harm to native organisms, and the hybridization of IAS and native

species.80 Threat types listed under ‘IAS’81 include competitors, predators, hybridizers, and other

and unknown. In case of IAS, prevention is the best cure.82

Ecological impacts of IAS83 in Europe has been analysed according to the type and cause

of impact. The deleterious impact84 of grey bears is a proof of hampered biodiversity as they are

non-native and IAS in Arctos.

1. RANVICORA VIOLATED ITS OBLIGATION UNDER THE BERN CONVENTION.

The aims of the Convention are to conserve wild flora and fauna species, by

promoting cooperation between several States85 and Ranvicora failed to corporate with

Arctos in this regard.

i. Ranvicora breached Article 11 of the Bern Convention

76
CBD, supra 18, Art. 8(h).

77
Id.

78
CBD, Decision VI/23, supra 75.

79
'The Guiding Principles Annex Decision VI/23 (11).
80
Id.

81
IUCN RED LIST CATEGORIES AND CRITERIA, IUCN, (2012).
82
CBD Guiding Principles, principle 2.
83
The ecological and socio-economic impacts of IAS on island ecosystems, Pg. 12 (2003).

84
CBD ‘IAS, Status, Impacts and Trends of Alien Species that Threaten Ecosystems, Habitats and Species’ 126, 8.

85
Bern Convention, supra 43, art. 1.

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 The Bern Convention, requires Parties “to strictly control the introduction of non-

native species”86 Adoption of preventative measures should be consistent with both the

precautionary principle87 and the ecosystem approach.88 The ruddy duck introduced in UK

was not invasive in that territory, yet its spread from the UK to Spain poses a threat to

endangered white-headed duck.89 The problem of invasive alien species has been

described by the IUCN90 as ‘one of the major threats to biological diversity’, with their

impacts considered to be as damaging as loss of habitat.91

ii. Ranvicora did not comply with Recommendation 159 (2012) of Standing Committee

to the Bern Convention.

Prevention of environmental harm,92 also enshrined in the second part of both

Stockholm Principle 2193 and Rio Principle 294 establishes a State’s responsibility95 to

ensure that activities within its control do not cause damage to the environment 96 of areas
86
Id. at (Article 11.2.b).

87
CBD Preamble ,CBD Guiding Principles, Principle 1.

88
CBD Guiding Principles, Principle 3.
89
IUCN Policy Recommendations on the Sixth meeting of the Conference of the Parties to the Convention on

Biological Diversity (COP6) at 5, 2002 IUCN.

90
The International Union for the Protection of Nature (1948).
91
IUCN, ‘Guidelines for the Prevention of Biodiversity Loss Caused by IAS Species Survival Commission of

IUCN (IUCN, 2000), section 1.

92
Kurukulasuriya, UNEP's New Way Forward: Environmental Law and Sustainable Development, 73, at p.86

(1995).
93
United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev. 1, 16 June 1972,

principle 21 [Stockholm Conference].

94
Rio Declaration on Environment and Development, U.N. Doc.A/CONF.151/5/Rev.1 (16 June 1992), Principle 2.

95
Report of ILC on the Work of Its Thirty Second Session 26-33, U.N. Doc. N35/10 (1980).

96
Trail Smelter Case (U.S. v. Can.), 3 ILA.A. 1905, 1965 (Apr. 16, 1938 & Mar. 11, 1941).

P A G E XXVI | MEMORIAL ON BEHALF OF THE APPLICANT

 beyond national jurisdiction (sic uteretuoutalienum non laedas)97 or control.98 Moreover,

the Pulp Mills99 decision clearly confirms that the State’s obligation of prevention is one

of due diligence.

2. TRANS-LOCATION MIGRATORY SPECIES MAY BECOME INVASIVE (CMS RESOLUTION

11.28)

IAS is considered in the updated CMS Strategic Plan 100 as one of the threats to

migratory species, recognizing the inter-linkages between IAS and migratory species 101

and the need to deal with this issue.

Parties and non-Parties should address threats from IAS and particularly to

undertake concrete actions aimed at preventing and mitigating the negative impact of IAS

on migratory species.102 The risk of migratory species to become invasive, can help

understand the complexities which characterize the interactions between IAS and

threatened migratory species.103 Grey bear is a trans-located migratory species which has

become invasive in Arctos.

97
BALLENTINE'S LAW DICTIONARY 1178 (1969).

98
Hanqin, Transboundary Damage in International Law, 4 (2003).
99
Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J., 162.

100
CMS Strategic Plan, 2006-2014 (UNEP/CMS/Conf.10.22).

101
UNEP/CMS/COP11/Inf.32.

102
UNEP/CMS/Resolution 11.28 ¶1 (2 December 2014).

103
Id.

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 III. THAT RANVICORA IS LIABLE FOR TRANSBOUNDARY HARM.

Transboundary harm means harm caused to persons, property or the environment 104 in the

territory or under the jurisdiction of other State, irrespective of the States sharing a common

border.105 It deals with acts not prohibited by international law 106, planned or carried out in the

jurisdiction of one State107 risk of the activities causing significant Transboundary harm 108 and

‘physical consequence’109 of these activities.110

1. VIOLATION OF PRINCIPLE OF “GOOD NEIGHBORLINESS”

A State should not be permitted to alter its natural conditions to the disadvantage

of the territory of a neighbouring State,111 especially when it relates to serious

consequence and injury112 established by clear and convincing evidence. 113 Every State's

obligation114 of not allowing its territory to be used for acts contrary to the rights of other

104
Prevention of Transboundary Harm from Hazardous Activities, U.N.GAOR, U.N .Doc A/56/10., (2001), Article

2(b).
105
Id. at Article 2(c).

106
Id. at Article 1.
107
Id. at Article 2(d).

108
Id. at Article 2(a).

109
Id. at Article 1.

110
Id.

111
Sir Robert Jennings et al eds, OPPENHEIM’S INTERNATIONAL LAW: PEACE 9th ed 23 (1992).

112
Latin maxim Sic UtereTuo Ut Alienum Non Laedas (you should use your property in such a way as not to cause

injury to your neighbour’s).

113
Trail Smelter Case (U.S. v. Can.), 3 ILA.A. 1905, 1965 (Apr. 16, 1938 & Mar. 11, 1941).

114
Judge Weeramantry and Judge Korona also noted that States have an obligation to not cause serious damage,

Request for an Examination of the Situation in Accordance with the Court’s judgment in the Nuclear Tests case,

P A G E XXVIII | MEMORIAL ON BEHALF OF THE APPLICANT

 States115 is recognized part of Customary International law. 116 But, Ranvicora has violated

this by causing Transboundary harm.

i. Activities caused Significant Transboundary Harm

Reintroduction entails the risk of causing Significant Transboundary Harm 117 and

of damage caused to persons, property and environment. There was imminent threat to

life of the people in Arctos118 as children died and others were injured.119Grey bears killed

more than 27 animals, damaged orchards, beehives120 and consuming the eggs of the

endangered species in Arctos.121 The conservation or restoration of ecosystem

interactions122 and processes is of greater significance than simply protection of

species,123 because human beings are of utmost concern for sustainable development.124

II. VIOLATION OF DUE DILIGENCE PRINCIPLE

(New Zealand/France), ICGJ 58 ICJ 1995, (September 22).

115
Corfu.Channel.(U.K..v..Alb.),.1949.I.C.J..4.

116
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. 226 (1996); CBD, Principle 3.

117
PTHHA, supra 104, art. 2(a).

118
[R.] ¶18.

119
[R.] ¶21.

120
[R.] ¶17.

121
[R.] ¶17.

122
CBD, supra 18,Article 2.

123
Id. at Guiding Principle 5.

124
Rio Declaration, supra 94, Principle 1.

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 States are bound125 and obligated126 to exercise due diligence,127 may have a

significant adverse impact in a transboundary context,128 in order to prevent129 the

commission within its dominions of criminal acts against another nation130 and to prevent

the occurrence or recurrence of such wrongs’131, therefore, any violation thereof creates

automatically a “strict liability” on behalf of the host State’.132

i. No assessment with Arctos.

The environmental management plans and strategies contained in the EIA should

consider regional and transboundary impacts, w.r.t the ecosystem approach.133 Ranvicora

125
Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ

Reports (2015) 1.
126
Case of the S.S. Lotus (France v. Turkey) 1927 PCIJ Series A, No. 10. Justice Moore at 88, referencing the US

Supreme Court case of United States v. Arjona, 120 US 479 (1887).

127
International Law Commission (ILC), Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities, with Commentaries, U.N. GAOR, U.N Doc. A/56/10 (2001), Art. 3, ¶7.
128
Pulp Mills on the River Uruguay (Arg. v. Uru.), 2010 I.C.J., 162.

129
The Alabama Arbitration, reported in Moore, International Arbitrations, vol. I, p. 495, at ¶¶572-573.

130
S.S. Lotus case (France v. Turkey) 1927 PCIJ Series A, No. 10., referencing the US Supreme Court case of

United States v. Arjona, 120 US 479 (1887).

131
United States of America v. Venezuela 120 US 479 (1887), History and Digest of the International Arbitrations

to Which the United States Has Been a Party, vol. 3 (1898–1906), at 3041.
132
Asian Agricultural Products Ltd v. Republic of Sri Lanka, Final Award, 27 June 1990, ICSID Case no.

ARB/87/3, ¶86.
133
COP 6 Decision VI/7, ¶26.

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 by not informing or consulting with Arctos134 has violated Principle 19 of Rio

Declaration135 principle 5(a) of Trans-boundary Rules, 2006.136

ii. Efficacious alternative of EIA

It is widely recognized that137 SEA provides an appropriate framework for

incorporating biodiversity issues including migratory species into planning and decision

making.138 SEA addresses a greater range of potential impacts on projects, including:

Induced impacts of projects, Synergistic impacts, and Global impacts.139

III. VIOLATION OF PRECAUTIONARY APPROACH.

134
[R.] ¶12.

135
Rio Declaration, supra 94 Principle 19.

136
Transboundary rules 2006, Principle 5.

137
Examples include: the European Union (EIA Directive 85/337/EEC as amended 97/11/EC by the Proposal for

an SEA Directive (COM 96/511 and COM 99/73)); New Zealand (e.g., Resource Management Act 1991 and

Hazardous Substances and New Organisms Act 1991) and in Canada (the Canadian 1999 Cabinet Directive on

Environmental Assessment, Policy, Plan and Program Proposals).

138
Roe, D., Dalal-Clayton, B., and Hughes. R., A Directory of Impact Assessment Guidelines. International

Institute for Environment and Development. London. (1995).

139
CMS, Secretariat provided by UNEP Twelfth Meeting of the CMS Scientific Council Glasgow, Scotland,

United Kingdom, 31 March-3 April 2004 CMS/ScC12/Doc.8.

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 Rio Declaration 1992140, CBD141 and UNFCCC 1992142 recognize that lack of

certainty regarding the threat of environmental harm should not be used as an excuse for

not taking action to avert that threat. 143 The Precautionary Principle requires careful

anticipation, avoidance and mitigation of potential harm from human activities for the

future.144 The movement of Grey bears to Arctos was easily anticipated.

IV. PRINCIPLE OF STATE RESPONSIBILITY.

It implies “responsibility of States for internationally wrongful acts”.145146 Every

internationally wrongful act of a State entails the international responsibility 147 of that

140
Rio Declaration on Environment and Development, U.N. Doc A/CONF151/5/Rev.1 (June 16, 1992)

(Hereinafter Rio Declaration), Principle 15.

141
CBD, supra 18, preamble.

142
United Nations Framework Convention on Climate Change, 9 May 1992, 1771 U.N.T.S. 107 [UNFCCC],

Article 3.3.
143
Dommelen, A. van, "The Precautionary Principle: Dealing with controversy." Biotechnology and Development

Monitor, No. 43, 8-11 (2000).

144
Guidelines for Applying The Precautionary Principle To Biodiversity Conservation And Natural Resource

Management As approved by the 67th meeting of the IUCN Council 14-16 May 2007.
145
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,

November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1, article 1.

146
Report of the International Law Commission on the work of its twenty-seventh session, A/10010/Rev.1 5 May -

25 July 1975.
147
Report of the International Law Commission on the work of its twenty-fifth session, 7 May - 13 July 1973,

Official Records of the General Assembly, Twenty-eighth session, Supplement No. 10, Extract from the

Yearbook of the International Law Commission:- A/9010/Rev.1; vol. II, pp.170. (1973).

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 State.148 International obligation is violated when an act of the State is not in conformity

with its required obligation.149

i. Compound 'Primary' Obligation"

The schematic outline contains a "compound 'primary' obligation" consisting of a

series of four duties: to prevent150, inform151, negotiate152 and repair.153154 Those duties are

based upon cooperation, good faith and bon voisinage between the "acting state" and the

"affected state".155

II. THE FEDERAL STATES OF ARCTOS DID NOT VIOLATE INTERNATIONAL LAW WITH

RESPECT TO ITS RESPONSES TO RANVICORA’S REINTRODUCTION OF GREY BEARS.

A. ARCTOS DO NOT HOLD DUTY TO PROTECT REINTRODUCED POPULATION

1. DID NOT VIOLATE CMS RESOLUTION 12.21156

i. The binding nature of a COP decision and resolutions.

148
RSIWA, supra 145, art. 1.

149
Id. at Article 12.

150
Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by

International Law, UN Doc. A/CN.4/360 and Corr. 1 (1982), Sec. 5, Art. 2. i.

151
Id sec. 2, Articles 1, 3.

152
Id, sec. 3, Article L.

153
Id.

154
Fourth Report on International Liability for Injurious Con- sequences Arising out of Acts Not Prohibited by

International Law, UN Doc. A/CN.4/373 and Corr. 1 pg.29 (1983) [hereinafter cited as Quentin-Baxter's 4th

report].
155
Id.

156
UNEP/CMS/Resolution 12.21(October 2017).

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 Nature of such resolutions are contingent upon the power ascribed to the COP in

the treaty text.157 An explicit grant of power to make binding decisions is needed to issue

binding resolutions.158 The text of the CMS solely grants COP the power to make

recommendations to Parties for effective implementation of the Convention. 159

Accordingly, CMS Resolution 12.21, the violation of which is claimed by Ranvicora,160

are not binding on Arctos.

ii. The Federal states of Arctos acted in accordance to resolution 12.21.

It provides to account socio environmental impacts due to use of land for personal

benefits161 and not for security purpose. Contradictorily, Ranvicora has violated the

resolution by not following SEA and EIA for CMS-listed species.162

The resolution envisages to develop partnerships, share and implement protocols

and regulations.163 Ranvicora did not even informed Arctos regarding the project.164

157
Volker Röben, Institutional Developments Under Modern International Environmental Agreements, 4 MAX

PLANCK UNYB 364, 372 (2000).

158
Id.

159
Convention on Migratory Species, June 23, 1979,1651 U.N.T.S. 333 [CMS], Article VII(5)(g).

160
[R.] ¶19.

161
Resolution 12.21, supra 156.

162
UNEP/CMS/Resolution 7.2 (18-24 September 2002) on impact assessment and migratory species and

UNEP/CMS/Resolution 11.27 (4-9 November 2014) on renewable energy and migratory species.
163
Resolution 12.21, supra 156.

164
[R.] ¶12.

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 “Favourable” conservation status is “the distribution and abundance of the

migratory species approach historic coverage.”165 It merely invites the parties to consider

cases of beyond historic coverage.166

III. DID NOT CONTRAVENE RECOMMENDATION NO. 142 (2009) OF THE STANDING

COMMITTEE167

“Alien species”,168 Invasive Alien Species169 should not be interpreted to include

‘native species naturally extending their range in response to climate change.’ 170 Grey

bear was introduced outside its natural territory and conditioned habitat which became

invasive subsequently.171

IV. ARCTOS IS NOT LIABLE FOR TRANSBOUNDARY HARM.

Out of four conditions172 of transboundary environmental harm, one being, the harm must

be significant173 or substantial174 or harm which is not insignificant.175

1. NO SIGNIFICANT DAMAGE
165
CMS, supra 159,Article I (1)(c)(4).

166
Id.

167
Bern Convention, supra 43, Standing Committee Recommendation No. 142 (2009).

168
CBD decision VI/23, supra 75.

169
Bern Convention, supra 43, Standing Committee Recommendation No. 99 (2003) on the European Strategy on

IAS.
170
Id at Recommendation No. 142 (2009) .

171
Bern Convention, supra 43, Article 14.

172
O. Schachter, International Law in Theory and Practice (Dordrecht, MartinusNijhoff, 1991), pp. 366--368.

173
Trail Smelter Case (U.S. v. Can.), 3 ILA.A. 1905, 1965 (Apr. 16, 1938 & Mar. 11, 1941).

174
Schachter, Supra 172.

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 To constitute trans-boundary harm, there should be harm to persons176, property177

or environment.178 The Act of Arctos does not harm any person and property of

Ranvicora.179

i. No significant Damage to environment

Transboundary damage should reach a certain level of harm 180 or a degree of

severity.181 To be legally relevant, such damage should be ‘‘greater than the mere

nuisance or insignificant harm which is normally tolerated.” 182 Killing of bears under

certain circumstances does not create significant harm to the environment.

II. ARCTOS HAS NOT BREACHED ITS DUTY UNDER TREATY OBLIGATIONS.

i. Arctos has not Violated CMS

175
International Law Commission, Report on the work of its fifty-third session: Commentary on Draft Articles on

Prevention of Transboundary Harm from Hazardous Activities, U.N. GAOR, U.N Doc. A/56/10 (2001) 148,

(2001).

176
Id. at Article 2(a).

177
Id. at Article 2(e).

178
Id. at Article 2(b).

179
[R.]. ¶17.

180
Franz Xaver Perrez, The Relationship between “Permanent Sovereignty” and the obligation not to case

transboundary environmental damage, 26 ENVIRONMENTAL LAW 1187 (1996).

181
Xue Hanqin, Transboundary Damage in International Law, 4 (2003).

182
J. Barboza, ‘‘Sixth Report on International Liability for Injurious Consequences Arising out of Acts not

Prohibited by International Law,” UN Doc. A/CN.4/428 (Article 2(b) and (e)), reproduced in Yearbook of the ILC

(1990), vol. II (Part One), p. 83, at pp. 88--89 and 105 (March 15, 1990).

P A G E XXXVI | MEMORIAL ON BEHALF OF THE APPLICANT

 Parties that are the range states are encouraged to implement 183 an agreement for

the migratory species.184 Therefore, Arctos has not acted in contravention of his

obligations under CMS.

a. Arctos is not a range state for the grey bears.

The predictability of routes of migration leads to predictability of range states.

The specification of range states indicates the states to be involved in conservation

programmes concerning migratory species.185 There was no historic or fossil records of

grey bear presence in Arctos.186 Therefore Arctos has not acted in contravention to Art.

III (4).187

b. Arctos’s actions are permissible under ‘extraordinary circumstances.’

Even if Arctos was considered as a ‘Range State’ for the grey bears 188, its actions

are permissible under CMS Article III(5)(d).189 It permits the taking of migratory species

if ‘extraordinary circumstances so require.’190 The extraordinary circumstances exception

is a common feature of many conservation agreements.191 It grants states a considerable

183
CMS, supra 159, Art IV.

184
Id.

185
Id. at Article I (1)(h).

186
R.¶ 10.

187
CMS, supra 159, Article III (4).

188
R. ¶ 23.

189
CMS, supra 159, Article III(5)(d).

190
Id.

191
Bern Convention, supra 43, Art. 4, Art. 9.

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 degree of discretion in determining when it should be invoked. 192 The threat posed to

Arctos’s citizens, property and livestock clearly justify the invocation of this exception

under CMS.193

ii. Arctos has not violated CBD

The Convention on Biological Diversity (“CBD”) requires Parties to ensure the

conservation and sustainable use194 of biological resources. Arctos actions did not

contravene CBD as it acted under a state of necessity.

a. Principle of State Necessity

Article 25 of RSIWA 2001195 considers Act of Necessity as a recognized

principle. Therefore, Arctos has not violated the provisions of establishing a system of

protected areas, management of protected areas and regulation of biological resources.196

b. Principle of Self-Defence

Self-defense as an "inherent right"197 been incorporated under UN Charter198 and

ARSIWA2001.199 The exercise of self-defense was justified because danger was

192
Trouwborst, Aussie Jaws and International Laws: The Australian Shark Cull and the Convention on Migratory

Species, Cornell Intl L. Jour. Online, vol.2, 42 (2014).

193
R. ¶ 23.

194
CBD, supra 18, art. 8(c).

195
RSIWA, supra 145, Article 25.

196
CBD, supra 18, art. 8.

197
M. A. Weightman, Self-Defense in International Law, Virginia Law Review, Vol. 37, No. 8 1109 (Dec., 1951).

198
Article 51 of UN Charter.

199
RSIWA, supra 145, Article 21.

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 imminent200, real and present with no other alternative method of escape; 201 therefore,

Arctos has not violated the objective of CBD and provisions of protection of ecosystem

and rehabilitation of threatened species.

c. Principle of Countermeasures

Under Article 49 of RSIWA 2001 202, State can take countermeasures in an order

to induce the other state to comply with its obligation. Before taking countermeasures,

Arctos has notified to Ranvicora through Diplomatic Notes.203 Failure to cooperate with

Arctos, takes up proportional countermeasures204. Therefore, act of Arctos is precluded to

be wrongful.205

d. Exception of Distress

The act of Arctos in question has no other reasonable way, in a situation of

distress, of saving the Citizens’ and animals’ life 206.

iii. Arctos has not violated Bern Convention

The aims of this Convention are to conserve wild flora and fauna and their natural

habitats, especially those species and habitats whose conservation requires the co-

200
Weightman, supra 197.

201
Giruad, La theorie de la legitimedefense, Academie de droit international, recueil des cours, 3 691-860 (1934).

202
RSIWA, supra 145, Part III Chapter II Article 49.

203
Id. at Article 43 and Article 52.

204
Id. at Article 51.

205
Id. at Article 22.

206
Id. at Part 1, Chapter V, Article 24.

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 operation of several States, and to promote such co-operation. 207Arctos’s actions are

justified as per article 9 of the convention.

a. Arctos has not acted in contradiction to Article 1, 2 and 10 of the Bern Convention.

The word ‘protection’208 referred to “inclusion in a legal framework” rather than

“protect all individuals from deliberate killing”. Article 2 “contains a main obligation that

follows from the aims stated in Article 1209 and formulates the goals of the Convention

recognizing that conservation of a species need to take into account a diversity of

interests210, in addition to the ecological requirements.211 This recognises the explicit need

to find compromises between competing interests. Arctos has not violated Article 1and 2

of the Bern Convention as the laid provision states about the conservation of ‘natural

habitats’and also the ‘co-operation’ of several states. On the contrary, Arctos is not the

natural habitat of grey bears212; also, Ranvicora did not consult or informed Arctos about

the reintroduction project.213 Therefore state co-operation could not be maintained. Arctos

has not violated Article 10 as Arctos is not a ‘range state’ of grey bear as enumerated in

CMS.

b. Article 9 is an exception to Article 6214 and 8215 of the Bern Convention.

207
Bern Convention, supra 43,Article 1.

208
Id. at Preamble.

209
Explanatory Report to the Convention, which succinctly states (in para. 21).

210
Explanatory Report, ¶40; Commission vs Belgium, Case 247/85, ECR p.3029 §8.

211
Bern Convention, supra 43, Article 2.

212
[R.] ¶ 10.

213
[R.] ¶12.

214
Bern Convention, supra 43, Article 6.

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 Article 9 states various criteria that need to be met before exceptions from strict

protection can be made216 and sets two preconditions for prohibition on killing ‘strictly

protected species’217 can be granted. Since the motives for the derogations are not spelled

out in Article 9 and States are free to decide for what reasons derogations have to be

granted, taking into account the goals218 of the Convention, it is up to them to ensure that

the condition "no other satisfactory solution"219 is satisfied. A treaty220 should be

interpreted “in good faith221 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.”222

 There is no other satisfactory solution223

The existence of another satisfactory solution224 should be appreciated by

considering possible alternatives which, in fact, depend on the motives for the derogation

whilst ensuring that the survival of the population is not threatened. 225 The competent

national authority should choose, among possible alternatives226, while solving the
215
Id. at Article 8.

216
Id. at Article 9.

217
Id. at Appendix II.

218
Id. at Preamble.

219
Id. at Article 9.

220
Id.

221
“Appendix to Resolution No. 2.”

222
Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, (Hereinafter VCLT).

223
EU Habitats Directive (Directive 92/43/EEC) 1992, “No satisfactory alternative”.

224
Bern Convention, supra 43, Article 9.

225
Bern Convention, Standing Committee 30th meeting Strasbourg, 6-9 December 2010.

226
Commission v Netherlands, Case C-339/87, ECR p.851, §28, 15th March, 1990.

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 problem. Even if it involves derogation, it must be objectively limited to the extent

necessary to resolve the specific problem or situation.227

 The exception will not be detrimental to the survival of the population

concerned.228

The assessment should be based on current data on the state of the population,

including its size, distribution, state of the habitat and future prospects. 229 The Standing

Committee of the Bern Convention can examine this condition if the State who presents

the report provides in appropriate cases additional information on the reasoning. Since

the grey bears were continuously causing harm to the citizens, environment and property,

Arctos adopted the best possible measure to keep them from their state.230

IV. RANVICORA NEED TO MAKE NECESSARY REPARATION TO ARCTOS FOR DAMAGE

CAUSED.

1. LEVELS OF REPARATION

Reparations are made basing upon different levels, the first-level of duty which is

actually a continuing duty which requires the source state is required to take “measures of

prevention that as far as possible avoid a risk of loss or injury.” 231 Failure to inform might
227
Draft Revised Resolution No. 2 (1993) on the scope of Articles 8 and 9 of the Bern Convention, adopted on

December 2010.
228
Under the habitats Directive, must not be detrimental to “the maintenance of the populations of the species in

their natural range”.

229
Bern Convention, Appendix to Resolution No. 2.

230
R. ¶ 20.

231
Third Report on International Liability for Injurious Consequences Arising out of Acts Not Prohibited by

International Law, UN Doc. A/CN.4/360 and Corr.1 (1982) [hereinafter cited as Quentin-Baxter’s 3d report]

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 increase the amount of any reparations required.232 Failure to negotiate, however, might

increase the amount of any reparations to be made. 233 The amount is to be determined

according to a balance of interests test enumerated in sections 5, 6 and 7, and the states’

actions with respect to the duties to prevent, inform and negotiate.234

II. CONVENTIONS AND CONFERENCES PROHIBITS DAMAGE TO LIVELIHOOD AND

BIODIVERSITY

i. CBD prohibits damage to biodiversity

CBD under Impact assessment and minimizing adverse impacts compel parties to

examine by studies the liabilities and provide compensation for damage to biological

diversity.235

ii. Conferences binds the contracting parties to cause such damage

UN conference on Human Environment236 principle 22 and the Rio Declaration on

environment and development237 principle 13 provide that state shall co-operate to

develop further the international law regarding liability and compensation for victims of

environmental damage caused by activities within the jurisdiction or control of such

states to area beyond their jurisdiction.238

Schematic outline, sec. 5, Art. 2.

232
Id. at 15 and 16.

233
Id. at pg. 16.

234
Id. at Article 3.
235
CBD, supra 18,Article 14(2).

236
Stockholm Conference, supra 93.

237
Rio Declaration, supra 94.

238
Stockholm Conference, supra 93, Principle 22 and Rio Declaration, supra 94, Principle 13.

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 3. STATE RESPONSIBILITY ON COMPENSATION AND END TO REINTRODUCTION PROJECT

RSIWA 2001 drafted by the ILC reflects customary international law on State

responsibility239 provides full reparation for the injury caused by the internationally

wrongful act shall be taken in the form of compensation or other. 240 Further on clear lines

of compensation it compel state responsible for wrongful act, an obligation to

compensate for damage caused covering all financially assessable damage including loss

of profits.241

International tribunals usually follow the theory of objective responsibility. 242

Even where a state's agents have acted ultra vires, 243 or, for that matter, in the absence of

intention to harm (dolus malus)244, it will bear responsibility for all its acts which fail to

conform to international legal standards.245

In Chorzow Factory Case246 involving Polish expropriation of German owned

industrial property inside Poland, the Permanent Court of International Justice stated

"Reparation must, as far as possible, wipe out all the consequences of the act and

239
Bosnia and Herzegovina v. Serbia and Montenegro (genocide Project) ICJ 2 (2007), ¶ 385.

240
RSIWA, supra 145, Article 34.

241
Id. at Article 36.

242
Ian Brownline, Principles of Public International Law, 6th Edition. Clarendon Press, (1973).

243
Shahira Samy, Reparations to Palestinian Refugees: A Comparative Perspective, Routledge 1st ed., 40 (2010).

244
Donna E. Arzt, The Right to Compensation: Basic Principles Under International Law, Ottawa, July 14-15,

(1999).
245
See Ian Brownlie, Principles of Public International Law 2nd ed 423-428 (1973).

246
Factory at Chorzow {Ger. v. Pol.), 1928, P.C.I.J. (ser. A) No. 17, at 27-28 (Sept. 13) Judgment No. 13, Merits).

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 reestablish the situation which would, in all probability, have existed if that act had not

been committed."247

In effect, the claimant is not former but future generations, whose equitable

interests in a clean and healthy environment need to be protected now, putting an end to

project and removing them from wild in the present is one way to discourage additional

spoilation.248

4. PRINCIPLE OF INTERNATIONAL LIABILITY249

It denotes a State's "civil responsibility," or obligation to pay compensation or

make reparations for injuries that non-nationals suffer outside its national boundaries as a

result of activities within its territory or under its control.250

Even if the act was not wrongful, international liability is based on the proposition

that absence of wrongfulness does not prejudge the question of compensation for damage

caused by an act of a State.251 The liability of a State does not stem from its fault or the

wrongfulness of its act, but from the injurious consequences suffered by persons beyond

247
Id. at ¶47.

248
See e.g. Peter Wetterstein, ed., Harm to the Environment: The Right to Compensation and the Assessment of

Damages, Clarendon Press, (1997).

249
United Nations International Law Commission (ILC), 1980.

250
Sompong Sucharitkul, State Responsibility and International Liability Under International Law, Loy. LA Int'l

& Comp. LJ 18 821 (1995).

251
Report of the International Law Commission on the Work of Its Thirty-Seventh Session en: 108-163, U.N. Doc.

N40/10 (1985).

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 its boundaries.252 The “cry of bears” one day again in Ranvicora but do not consider the

extensive suffering that could be expressed in these cries.253

252
Responsibility of states for internationally wrongful acts, supra 145, article 1.

253
Ingrid E. Newkirk, Animal Rights Uncompromised: Predator-Reintroduction Programs, PETA, (2019).

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 CONCLUSION AND PRAYER FOR RELIEF

Applicant, the Federal States of Arctos, respectfully requests the ICJ to adjudge and declare that:

1. Republic of Ranvicora violated international law with respect to its grey bear

reintroduction project;

2. Federal States of Arctos did not violate international law with respect to its responses to

Ranvicora’s reintroduction of grey bears; and hence adequate compensation must be

granted.

RESPECTFULLY SUBMITTED,

AGENTS OF THE APPLICANT

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