Stetson International Environmental Law Moot Court Competition Bench Memo for Case of Beaked Whales and Marine Seismic Surveys Kingdom of Aduncus, Applicant v. Republic of Mersenne, Respondent Facts Aduncus and Mersenne are neighboring coastal states along the Sedna Sea. Aduncus is directly north of Mersenne. Their EEZs (Exclusive Economic Zones) are adjacent to each other (see attempted drawing at end of bench memo) Aduncus o Small developing country (population: 240,000) that depends on heavily on tourism, its 2nd largest source of hard currency o Whale watching activities generate approx $5 million. Out of 80,000 visitors in 2008, 12,000 of them participated in whale watching activities o The constitutional monarchy is committed to maintaining and developing ecotourism activities, including beach resorts, sports fishing, and whale watching o Designated half of its territorial sea and EEZ as an MPA (Marine Protected Area) Through domestic legislation, Aduncus prohibits mineral extraction and all fishing in MPA (except for sport and subsistence fishing) Aduncus’s MPA borders Mersenne’s territorial sea and EEZ Mersenne o Newly industrialized country (population: 22 million) with abundant natural resources o Had strong economic growth from 2003-2008. The global financial crisis in 2008 led to decline in demand for and prices of Mersenne’s commodities. Additionally, in 2007, the state-owned power company MECO was unable to import sufficient quantities of oil/gas. The combination of these two factors led to a significant contraction of the economy. In 2009, unemployment reached 29% o Mersenne declined Aduncus’s request to establish an MPA Dispute concerns underwater sound produced by airguns used to conduct seismic surveys. Seismic surveys are used to search for oil/natural gas. Beaked whales, which comprise 25% of cetacean species, are a poorly understood species and may be adversely affected by underwater sound. However, underwater sound damage depends on many variables, including distance between sound and animal, the animal’s hearing sensitivity, frequency, decibel level, etc. Mersenne allowed MECO to conduct seismic surveys starting Dec 2007 for hydrocarbon exploration using 20-gun arrays 250 nautical miles (288 miles) from Aduncus. In Jan 2009, 12 beaked whales strand themselves on Mersenne’s shoreline, 20 km south of Aduncus. Mersenne tried to rescue them but they all died. Autopsy results were inconclusive Aduncus’s arguments in the record: o Int’l non-profit Bluewatch reports that airgun sounds cause beaked whales to avoid areas of hydrocarbon exploration o Mersenne’s seismic surveys hurt Aduncus’s economy and pose a grave threat to the transboundary beaked whales o UNCLOS Art. 206, CBD 14, and Espoo convention requires Mersenne to conduct an environmental impact assessment (EIA) for activities listed in Appendix I, including “offshore hydrocarbon production,” or alternatively Appendix III because the noise pollution reaches an area of special enviro concern, Aduncus’s MPA o Mersenne didn’t give proper notice under Espoo Article 3. Aduncus invokes Article 3, ¶7 of Espoo. o Seismic surveys are pollution under UNCLOS Art. 1(4). Mersenne violated CBD Art. 3 duty to avoid transboundary harm and breached the precautionary principle Mersenne’s arguments in the record: o Mersenne disagrees with Bluewatch reports that airgun sounds cause beaked whales to avoid areas of hydrocarbon exploration o Its surveys are done within its own EEZ and seismic surveys are not hydrocarbon production, merely exploration, so it doesn’t fall under Espoo Appendix I. Under the amendment to Appendix I, which Aduncus has ratified and Mersenne as not, hydrocarbon production means extraction. The seismic surveys have not led to extraction. Also, Mersenne is in an energy crisis and are committed to energy independence. This is a matter of national security (their necessity argument) o Its unlikely our seismic surveys are causing transboundary impact; in fact it’s more likely your whale watching ships are having a greater impact through noise production and chase tactics. We’re not going to do an EIA under Espoo because 1) they’re not hydrocarbon production/extraction activities, 2) surveys are done by 2 modestly sized vessels so they don’t fall under Appendix III criteria, and 3) even if the activities did require an EIA, MECO has undertaken mitigation measures starting April 2008 (slowly ramping up airgun intensity and gradual activation). These steps reduce impacts below a significant level. In Feb 2009, Mersenne also put on-board observers on all survey vessels and airguns can’t be used when a whale is spotted within 500 meters of the vessel o We haven’t breached UNCLOS or CBD legal obligations. UNCLOS and CBD recognize Mersenne’s right to explore and exploit it’s own natural resources. We haven’t transgressed on customary int’l law o Major point: even if we violated any obligations, we’re excused by the doctrine of necessity. Since we’re going through the worst economic conditions since the 1930s, this is an exceptional basis that triggers a necessity defense In accordance w/Espoo Art. 3 ¶7, Aduncus and Mersenne submitted to an inquiry commission the question of whether MECO’s activities had resulted or were likely to result in significant adverse transboundary impacts. The commission’s opinion is purely advisory in nature. One member found MECO’s activities were not likely to have caused significant adverse transboundary impacts on beaked whales and wouldn’t in the future, one found they were likely to have caused and were likely to continue to cause significant adverse transboundary impacts, and the third member found that MECO’s activities may have caused significant adverse transboundary impacts in the past but current mitigation measures make future impacts unlikely o Aduncus said it would continue to review its legal options o Espoo Art. 2: Espoo provisions shall not prejudice any obligations of the Parties under int’l law w/regard to activities having or likely to have a transboundary impact Treaties and other international instruments in which both states participate: Parties to the Vienna Convention on the Law of Treaties Parties to the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo Convention) o Aduncus has ratified the first and second amendments, Mersenne has not Parties to the United Nations Convention on the Law of the Sea (UNCLOS) Contracting parties to the Convention on Biological Diversity (CBD) Parties to the International Convention for the Regulation of Whaling (ICRW) Participants in the 1972 UN Conference on the Human Environment at Stockholm, the 1992 UN Conference on Environment and Development at Rio de Janiero, and the 2002 World Summit on Sustainable Development at Johannesburg General Outline of Aduncus Argument (order may vary, but this is the gist) I. Mersenne must do an EIA under int’l law i. General: Noise is pollution because it’s a form of energy b. Mersenne has treaty obligations i. UNCLOS- harm to the marine environment ii. CBD- harm to biodiversity iii. Espoo Convention- transboundary harm 1. Appendix III criteria- 3 things to consider 2. Appendix I- activity consists of “offshore hydrocarbon activity” c. Customary int’l law i. Widespread state practice 1. Examples from the US and EU national legislation/case law ii. Opinio juris (sense of legal obligation 1. Treaties as evidence 2. UNEP draft articles and ILC draft articles d. Mersenne’s mitigation measures don’t relieve its duties II. Mersenne is violating int’l obligations a. Harming the marine environment i. UNCLOS ii. Precautionary principle b. Harming Aduncus i. Espoo Convention- transboundary harm III. Necessity is not an excuse a. Article 25 of Draft articles on Responsibility of States for internationally wrongful acts b. Gabcikobo-Nagymoros case General Outline of Mersenne Argument I. Mersenne not obligated to do an EIA under int’l law a. No treaty obligations i. Espoo- no evidence of transboundary effect 1. Appendix I- MECO’s seismic surveys do not constitute “offshore hydrocarbon production” 2. Appendix III- under 3 criteria, not likely to cause a transboundary effect 3. Inquiry commission found in favor of Mersenne ii. UNCLOS 1. Noise isn’t pollution, Mersenne didn’t become party to that definition iii. CBD- harm to the marine environment iv. Even if required, inquiry commission should be adequate II. Mersenne didn’t violate int’l obligations a. Mersenne doesn’t have a duty under treaties i. Didn’t breach UNCLOS 1. Sound not pollution 2. Under took adequate mitigation measures ii. Didn’t breach CBD iii. No duty under the precautionary principle 1. Not customary int’l law iv. No transboundary harm 1. No proof that surveys caused harm to 12 beaked whales 2. No proof that noise harms whales in general a. Trail Smelter- must show clear and convincing evidence b. Even if Mersenne violated any duties, its excused by the necessity doctrine Relevant Text in Treaties and Other International Instruments EIA issue UNCLOS- harm to marine environment o Art. 1(4): “pollution of the marine environment” means the introduction by man, directly or indirectly, of substances or energy in the marine environment…which results or is likely to result in such deleterious effects as harm to living resources and marine life, … , hindrance to marine activities, including fishing and other legitimate uses of the sea, impairment of quality for use of sea water and reduction of amenities” What is pollution? Is noise pollution? How do we know noise is pollution, what is Aduncus’s authority? If noise isn’t included in the treaty as a form of pollution, should Mersenne be held to that definition when it wasn’t present during ratification (int’l law doesn’t like to hold States accountable for provisions they didn’t sign on for)? Q for Mersenne: Article 194(3) says pollution covered includes pollution from devices used in exploration/exploitation of the seabed’s natural resources. Doesn’t pollution from seismic surveys count? Q for Mersenne: the standard is “likely,” so hasn’t Aduncus met its burden by presenting this science that outlines the harm to beaked whales? Even if it doesn’t cause harm to marine life, isn’t the noise from surveys likely to hinder their marine activities by chasing whales away from whale watching vessels? Aduncus is known for its pristine beaches; won’t it impact their ecotourism industry if a bunch of dead whales keep washing ashore? Silence can be taken either as direct omission or that something that was forgotten Q for Aduncus: Are there any cases that have defined noise as pollution? What about national law/statutes? Where there is a disputed question of science, how does a court review it as a factual matter in terms of accepting evidence in int’l law? o Art. 206: “When States have reasonable grounds for believing that planned activities under their jurisdiction or control may cause substantial pollution of or significant and harmful changes to the marine environment, they shall, as far as practicable, assess the potential effects of such activities on the marine environment and shall communicate reports of the results” Q for Mersenne: Even if we accept noise isn’t pollution, can we consider seismic survey sound’s affects on beaked whales to be “significant and harmful changes to the marine environment”? Q for Aduncus: Isn’t UNCLOS 206 a self-assessment? Espoo Convention- transboundary harm o Art. 2(3): “The Party of origin shall ensure that… an EIA is undertaken prior to a decision to authorize or undertake a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact” Appendix 1: “offshore hydrocarbon production” is an activity that counts under Article 2. Amendment to App. 1 (has not entered into force and Mersenne has not ratified), hydrocarbon exploration= extraction of petroleum or natural gas Note: do seismic surveys constitute offshore hydrocarbon exploration? Or do they fall outside the definition? Appendix III: 3 criteria parties may consider for determining whether any activity not listed in Appendix I will have a transboundary impact 1) whether the size of the proposed activity is large for its type 2) whether the proposed activity is located close to an area of special environmental sensitivity 3) whether the proposed activity has potentially adverse effects on valued species or organisms Note: this is not mandatory o Article 3(7): If a party thinks it’ll be affected by a significant adverse transboundary impact of an Appendix I activity, and when no notification has take place, the concerned parties shall exchange info at the request of the affected party for the purpose of discussing whether there’s a likely significant transboundary impact. If parties disagree on whether there’s a likely transboundary effect, they can submit the question to an inquiry commission to advice on the likelihood of significant transboundary impact (in this case, 1 voted for Mersenne, 1 for Aduncus, and 1 said although there may have been significant adverse transboundary impacts, Mersenne’s mitigation measures make any future problems unlikely) o Appendix IV: The inquiry commission’s final opinion is based on accepted scientific principles Q for Aduncus: Does this mean that because the inquiry commission found in favor of Mersenne, we should accept Mersenne’s scientific contentions? CBD o Art 14(1): Each party, as far as possible and appropriate, shall: (a): “introduce appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures” What EIA procedures does Mersenne have in place? Regardless if they have EIA procedures, do the mitigation measures negate the need for an EIA? (d): “In the case of imminent or grave danger or damage, originating under its jurisdiction or control, to biological diversity within the area under jurisdiction of other States or in areas beyond the limits of national jurisdiction, notify immediately the potentially affected States of such danger or damage, as well as initiate action to prevent or minimize such danger or damage” Can we consider this to be a case of imminent or grave danger/damage? How will biological diversity be affected if only 12 whales are killed, and do we even have scientific certainty that these whales were harmed by Mersenne? Do Mersenne’s mitigation measures satisfy the CBD’s requirements to iniate action to prevent or minimize the danger/damage? Violation of Int’l Obligations issue Vienna Convention o Art. 26: “Every treaty in force is binding…and must be performed…in good faith” o Q for Mersenne: Is Mersenne acting in good faith by refusing to conduct an EIA? o Do there need to be feasible alternatives to determine that Mersenne isn’t acting in good faith and to make the justification that tactics being used are not appropriate? Espoo Convention- transboundary harm o Art. 3(1): “For a proposed activity listed in Appendix I that is likely to cause a significant adverse transboundary impact, the Party of origin shall, for the purposes of ensuring adequate and effective consultations under Article 5, notify any Party which it considers may be an affected Party as early as possible and no later than when informing its own public about that proposed activity.” UNCLOS- Harm to the marine environment o Art. 56(1): State has sovereign right to exploit their resources in their EEZ, including economic exploitation and exploration for energy resources Art 56(2): But states must have due regard for other affected States Q for Aduncus: Doesn’t Mersenne show due regard by employing mitigation activities after the whale stranding even though there’s no hard evidence Mersenne caused the alleged harm? Q for Aduncus: Can’t Mersenne exploit its oil resources within its own EEZ? o Art. 65: States shall cooperate w/a view to the conservation of cetaceans and work w/int’l organizations for their conservation, management, and study o Art. 192: “States have the obligation to protect and preserve the marine environment” o Art. 193: “States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment” o Art. 194(1): “States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source, using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and they shall endeavour to harmonize their policies in this connection” Q for Mersenne: Has Mersenne really taken all measures necessary to prevent pollution? Q for Aduncus: If the standard allows for mere control of pollution, don’t the mitigation measures satisfy that burden? Don’t mitigation measures represent the best practicable means? o Art. 194(2): “States shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment, and that pollution arising from incidents or activities under their jurisdiction or control does not spread beyond the areas where they exercise sovereign rights in accordance with this Convention” Q for Aduncus: Has the “pollution” spread beyond Mersenne’s EEZ? How do we know? o Art. 194(3): Pollution covered includes pollution from devices used in exploration/exploitation of the seabed’s natural resources o Art. 194(5): “The measures taken in accordance with this Part shall include those necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and other forms of marine life” o Art 198: “When a State becomes aware of cases in which the marine environment is in imminent danger of being damaged or has been damaged by pollution, it shall immediately notify other States it deems likely to be affected by such damage, as well as the competent international organizations” Convention on Biological Diversity o Art. 3: “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.” o Art. 22: “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” Rio Declaration o Principle 19: “States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.” Necessity Issue Generally: Necessity has been invoked to protect a wide variety of interests, including safeguarding the environment, preserving the very existence of the State and its people in time of public emergency, or ensuring the safety of a civilian population. But stringent conditions are imposed before any such plea is allowed Article 25 of Draft Articles on Responsibility of States for Internationally Wrongful Acts provides that “Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act: o Is the only way for the State to safeguard an essential interest against a grave and imminent peril; AND Can Mersenne solve their energy crisis/national security issues any other way? Can they conduct less harmful seismic surveys or more costly surveys? If an alternative method is exorbitant, is Mersenne still required to use it, especially in light of its economic woes? Is the economic crisis a grave peril? If there’s another option for Mersenne, no matter how costly or inconvenient, Mersenne must take it According to Article 25 ILC commentary, “way” is not limited to unilateral action, Mersenne may also take cooperative action (the record is silent on whether it considered this) to alleviate its crisis By definition, peril will not yet have occurred in necessity cases Is Mersenne basing their argument on the current crisis as it stands? If so, they lose unless they are arguing that the peril is yet to come o Does not seriously impair an essential interest of the State or States toward which the obligation exists, or of the international community as a whole” In 2007, the global unemployment rate was 30%, higher than Mersenne’s 23% rate. E.g., Kenya (population: 38 million) had a 40% unemployment rate in 2008, should they be allowed to imperil Tanzania’s black rhino, an endangered species, if they face an energy crisis? What about zebras, a common tourist attraction that’s not endangered? How do we factor in that very little is known about the beaked whales? Are beaked whales an essential interest? The record is silent as to whether the whale watchers come specifically for beaked whales or just whales in general. Beaked whales are deep divers, so how can whale watchers even see them? How often do they breach? Basically, Mersenne’s interest must outweigh Aduncus’s interest, it’s a balancing test Article 25 also goes on to say that necessity cannot be invoked if the State has contributed to the situation of necessityyou could ask if Mersenne contributed to its own state by failing to meet energy needs when it has abundant resources o In the Gabčíkovo-Nagymaros Project case, the Court considered that because Hungary had “helped, by act or omission to bring” about the situation of alleged necessity, it could not now rely on that situation as a circumstance precluding wrongfulness If an OPEC member couldn’t extract oil for 2 months, it would be a state of national emergency. Do we have the same type of dynamics in this situation and can we make that determination as to what constitutes necessity for them? Gabcikovo-Nagymoros Project ICJ case is the preeminent case and uses the Article 25 criteria, but ask if there are other cases that bolster, undermine, or clarify its holding Relevant Cases Trail Smelter (U.S. v. Canada) 3 R.I.A.A. 1905 (1949) – transboundary harm o The US alleged that a Canadian smelter’s fumes were carried downriver several miles to Washington State. The arbitral tribunal held that Canada was responsible to the US for transboundary pollution and owed damages o What court decided Trail Smelter? Has this Court ever adopted the ruling in Trail Smelter? o The pollution/harm in Trail Smelter was visible because noxious fumes harmed US crops. In the present case, the harm is not visible and the whale autopsy was inconclusive In Trail Smelter, the State alleging harm must prove causation w/clear and convincing evidence Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4- duty to notify o Case arose after several incidents UK ships in the Corfu Channel. First, UK ships came under fire from Albanian fortifications. Second, UK ships struck mines. Third, the UK conducted mine-clearing operations in Corfu Channel within Albanian territorial waters. The Court held the UK had a right to go through the channel. The Court said a state is obligated not to allow knowingly its territory to be used contrary to the rights of other states Southern Bluefin Tuna (Austl. & N.Z. v. Japan)- precautionary principle o The International Tribunal for the Law of the Sea ordered Japan immediately to refrain from conducting an experimental fishing program, implicitly applying the precautionary approach. Necessity cases Gabcikovo-Nagymoros Project (pronounced “Gob-chi-cove-oh) o Court rejected Hungary’s necessity argument that inadequate knowledge of environmental risks justified halting construction on a joint project with Slovakia to build a series of locks on the Danube River. Hungary failed to exercise several available options (not the only option), and Hungary’s alleged peril had already materialized years before so it didn’t represent a peril arising entirely out of the project (no imminence) Russian indemnity case o In order to justify its delay in paying its debt to Russia, the Ottoman Government invoked the fact that it had been in a dire financial situation. The arbitral tribunal accepted the plea in principle, stating that int’l law must adapt itself to political exigencies and that state obligations to execute treaties are weakened if the existence of the State is in danger and observation of international duty is self-destructive o A State must be completely imperiled does a 23% employment rate= imperilment? What about a desire for energy independence? Rainbow Warrior case o Arbitral Tribunal expressed doubt as to the existence of the necessity excuse (but the ICJ in Gabcikovo expressly accepted the necessity defense) Questions to ask when speaking to customary law: What is customary law? o What does opinio juris mean? How do we know it exists/how is it shown? o What does widespread state practice entail? How many states have to practice for it to be widespread? o Do we need both widespread state practice and opinio juris to establish customary law, or just one? Give an example of opinio juris Where does the rule of customary law being widespread state practice and opinio juris come from? Does an entire treaty or its individual provisions give rise to custom? (individual provisions) Other questions up for grabs: EIA issue o What does an EIA entail? Why isn’t the inquiry commission an EIA? o Why isn’t Mersenne permitted to use sonar when there’s case law saying otherwise? o Assuming we find Mersenne is required to conduct an EIA, what are the next procedural steps? What happens if Mersenne refuses to continue? Is there a separate mechanism you can use to enforce your rights? How do you enforce the findings of an EIA? Int’l obligations issue o Wouldn’t the court be stomping on Mersenne’s right to protect national security in order to find that Mersenne is hindering Aduncus’s rights? o If they cease their seismic surveys and fail to access oil/gas resources, would they be violating their obligations to their own people? Don’t they have the right to exploit their own resources and development? o Is the precautionary principle customary int’l law (this is area of great debate)? Why or why not, how is it demonstrated? Necessity issue o Question for Mersenne: Article 25 that reads “Necessity may not be invoked…unless” which emphasizes the exceptional nature of necessity and the stringent criteria. If we accept your necessity argument, doesn’t that open the door to any State laying waste to the environment whenever its employment rate gets a little high or it wants to achieve energy independence? Ask how many signatories there are to whatever treaty they mention, what the spirit of the treaty is, when it was last updated/when the last convention was, etc Feel free to ask for clarification on a treaty/case/law/principle if you don’t think it was adequately explained before the analysis is introduced o If case law jurisdiction unclear, ask. For ICJ case law, ask if it’s binding on this court If the ILC (International Law Commission) Draft Articles are mentioned, you can ask what the ILC is, what its power entails, and why should the ICJ find its opinion persuasive Drawing of the States and the Sedna Sea QuickTime™ and a decompressor are needed to see this picture.
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