IN THE SPECIAL INTERNATIONAL TRIBUNAL

CASE OF SEISMIC SURVEYS AND OIL SPILLS

THE REPUBLIC OF ARAGUAIA

APPLICANT

V.

REPUBLIC OF RISSO

RESPONDENT

Memorial for the Applicant

Roseraine Datu-daculaEdgar Cabanes

Counsels

Team Book IIJanessa Fe Alcarez

Rachel Giango AlburoRoseraine Datu-dacula

Edgar CabanesAngel Bert Gemparo

TABLE OF CONTENTS

INDEX OF AUTHORITIES……………………………………………….………………….…ii

SUMMARY OF FACTS…………………………………………………………………………1

ISSUES PRESENTED………………………………………………………………………….4

SUMMARY OF ARGUMENTS………...………………………………………………………5

ARGUMENTS

I. RISSO VIOLATED ITS INTERNATIONAL OBLIGATION BY CONDUCTING

SEISMIC SURVEYS, CAUSING ENVIRONMENTAL AND ECONOMIC

HARM TO ARAGUAIA……………..……………………………………………………6

II. RISSO VIOLATES INTERNATIONAL LAW WHEN IT REFUSED TO

CONDUCT AN ENVIRONMENTAL IMPACT ASSESSMENT……………….……7

III. THE DOCTRINE OF NECESSITY DOES NOT EXCUSE RISSO FROM

VIOLATING INTERNATIONAL OBLIGATIONS………………………………………8

IV. ADMIRAL PANFILO BLAS IS NOT CRIMINALLY LIABLE FOR THE WAR

CRIME OF STARVATION…………….………………..……………………………….9

V. ADMIRAL BLAS IS NOT LIABLE FOR ATTACKING CIVILIANS……..………..10

VI. ADMIRAL BLAS DID NOT COMMIT THE WAR CRIME OF CAUSING

WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL

ENVIRONMENT…………………………………………………………………………11

CONCLUSION AND RAYER FOR RELIEF…………..……………………………………13

INDEX OF AUTHORITIES

Treaties and Other International Laws

1949 Geneva Conventions, Additional Protocols I and II………………….……....9, 10, 12

1969 Vienna Convention of the Law of Treaties……………….…………………….………6

1982 UN Convention on the Law of the Sea…………………………………………………6

Convention on Biodiversity, June 5, 1992………..…………..…………….…..………6, 7, 8

Convention on Environmental Impact Assessment in a Transboundary

Context, March 25, 1991……………………………………………….………….……….8

Dharsiwa ………………………………………………………………………...………………9

Lieber Code …………………………………………………………………………….....10, 11

Rio Declaration on Environment and Development (1992) ………………………………..6

United Nations Charter, as amended June 26, 1945………………….………..…………..1

United Nations Conference on Environment and Development, June 3-14, 1992………6

Judicial and Arbitral Decisions

International Criminal Court - Bemba 410, 411 ……………………...…………………….11

Articles

International Committee of the Red Cross Commentaries ……………………………….10

SUMMARY OF FACTS

The Republic of Araguaia borders the Middle Sea. Risso, a highly industrialized

country, has control of Yukule, asserting historical claims on the islands east of Risso.

Araguaia has been contesting this sovereignty of Risso over the Yukule on the grounds

of proximity of Yukule to its coast and the unlawful annexation by Risso.

In 2006, Risso faced an energy crisis when the state-owned power company

RECO, was unable to import sufficient quantities of oil and natural gas. The situation

was exacerbated by the global financial crisis and unemployment.

In 2007, Risso permitted RECO to begin exploration for hydrocarbon reserves

within Yukule, to search for oil reserves and natural gas. Araguaia expressed concern

that the seismic surveys would harm the dolphins and whales as well as its ecotourism

industry. It asked Risso to comply with its duties under the Espoo Convention to

conduct an environmental impact assessment or EIA.

The international non-government organization, ECOFIN, reported that short-

beaked dolphins and pilot whales avoid areas where RECO was conducting

hydrocarbon activities. The Araguaia government asserts that the noise from airguns

has adversely affected some marine mammals such as the dolphins.

Araguaia is a member of the Convention on Environmental Impact Assessment

in a Transboundary Context or Espoo. Araguaia asserted that Risso is required to

conduct an EIA on RECO’s survey activities. Risso refused on the grounds of energy

independence and national security. Araguaia claimed that Risso violated the Espoo

Convention, the UNCLOS as well as the CBD.

On the 15th of January 2009, short-beaked dolphins and a pilot whale were

stranded on Risso’s shoreline. The cause of death was inconclusive. Araguaia alleged

that RECO’s activities are connected to the mass stranding. Risso denied such

accusations but has taken additional measures by employing observers on the survey

vessels and to suspend activity when whales are spotted within a 500 meter range. It

further stated that any violation that may have been committed is excused by the

doctrine of necessity considering its economic conditions as an exceptional case.

Araguaia and Risso submitted to an inquiry commission pursuant to the Espoo

Convention, on the issue of whether RECO’s activities cause significant adverse

transboundary impacts. The commission presented a final decision. One agreed in the

affirmative, one answered in the negative and the third member said that the past

activities were unlikely to have caused adverse transboundary impacts and they were

unlikely to cause such harm in the future with the adoption of the additional measures.

Araguaia invaded Yukule and controlled Yukon. Fishermen were deterred from

entering the maritime control zone. A resisting militia was formed. As hostilities

escalated, Araguaia was shooting unauthorized movement along the coasts stranding a

group of fishermen on an island without food. A Free Yukule Movement was formed.

They sent a vessel Nirvana to deliver humanitarian packages, escorted by Sphinx.

Operation Maelstrom was formed to prevent the Nirvana from entering Yukule. It

was denounced as a violation of international humanitarian law. Araguaia claimed that it

was lawful on the grounds of national security and self-defense.

An oil rig was spilled offshore of Yukule to stop the advance of the Risso navy.

The oil spill was feared by the United Nations Environmental Program to greatly affect

the marine environment.

The United Nations Security Council called upon all parties to end the conflict or

face economic sanctions. Failing to resolve the problem through negotiations, Araguaia

and Risso referred the issue of violations of international law to a Special International

Tribunal (SIT).

Aside from the Espoo Convention, both Araguaia and Risso are parties to the

United Nations Charter, the Vienna Convention on the Law of Treaties, the UN

Convention on the Law of the Sea and the Convention on Biodiversity. Araguaia is a

party to the Convention of Migrant Species of Wild Animals and the Convention on

International Trade in Endangered Species of Wild Fauna and Flora. Both participated

in the 1972 United Nations Conference on the Human Environment and the 1992 United

Nations Conference on Environment and Development.

ISSUES PRESENTED

I. BY CONDUCTING SEISMIC SURVEYS IN THE MIDDLE SEA CAUSING

ENVIRONMENTAL IMPACT TO ARAGUAIA, DID RISSO VIOLATE ITS

INTERNATIONAL OBLIGATION?

II. IS RISSO REQUIRED BY INTERNATIONAL LAW TO ASSESS THE

ENVIRONMENTAL IMPACT OF ITS SEISMIC SURVEYS WHICH MAY CAUSE

TRANSBOUNDARY HARM?

III. DOES THE DOCTRINE OF STATE NECESSITY EXCUSE RISSO IN ITS

VIOLATIONS OF INTERNATIONAL OBLIGATIONS?

IV. IS ADMIRAL BLAS LIABLE FOR ATTACKING INNOCENT VICTIMS DURING

THE ARMED CONFLICT?

V. IS ADMIRAL BLAS LIABLE FOR THE STARVATION OF CIVILIANS IN

YUKULE?

VI. DID ADMIRAL BLAS CAUSE THE WIDESPREAD, LONG-TERM AND

SEVERE DAMAGE TO THE NATURAL ENVIRONMENT?

SUMMARY OF ARGUMENTS

1. Risso violated its international obligations when it conducted harmful seismic

surveys in the Middle Sea. The noise pollution caused by the seismic surveys

caused environmental injury to neighbor state Araguaia.

2. Because the noise produced by seismic surveys causes transboundary and

environmental harm, Risso is required to conduct an EIA pursuant to its treaty

obligations and customary international law

3. The failure of Risso to comply with international obligation is not excused by the

Doctrine of Necessity.

4. Admiral Blas is not liable for attacking civilians.

5. Admiral Blas is not criminally liable for the crime of starving civilians in Yukule.

6. Admiral Blas did not cause the widespread, long-term and severe damage to the

natural environment.

ARGUMENTS

I. RISSO VIOLATED ITS INTERNATIONAL OBLIGATION BY CONDUCTING

SEISMIC SURVEYS, CAUSING ENVIRONMENTAL AND ECONOMIC HARM TO

ARAGUAIA.

Araguaia’s marine environment was affected by the seismic surveys conducted

by Risso in the Middle Sea. The principle is, although States have sovereignty over their

natural resources, international law imposes on them the responsibility to temper this

right with the duty to protect from harm the marine environment and to those of the

other States.1The UNCLOS also requires these States to prevent pollution from their

activities which may spread into the territories of the other states.2 International Law

prohibits a State to knowingly allow its territory to be used against the rights of the other

states. Thus, Risso has the responsibility to make sure that the activities of RECO do

not harm not only its own territory but also the territories of the other countries as well.

Risso owns the power company RECO and it knowingly permitted the seismic surveys

conducted by RECO. The harmful noise pollution from these seismic surveys which

reached other territories may make Risso responsible for the damage caused.3

The UNCLOS provides for the rights and responsibilities of the countries relative

to the oceans and seas. As a customary international law,4 it obliges Risso to protect

the marine environment from harmful pollution and conserve global diversity as required

by the Convention on Biodiversity. Being a signatory to the treaties and laws such as

the Vienna Convention, UNCLOS and CBD, Risso is required to follow such provisions

provided in these laws in good faith.

1 Convention on Biodiversity article 3, June 5, 1992: United Conference on Environment and Development, Rio Declaration on Environment and Development princ. 2 Document A/CON.151/REV.1 1992;United Nations Convention on the Law of the Sea Article 193, 19822 UNCLOS, Article 194, United Nations Charter as amended June 26, 19453 Vienna Convention on the Law of Treaties Article 11, May 19694 UNCLOS section XII

The noise pollution from the seismic surveys emitted in the Middle Sea, to the

marine ecosystems as well as neighboring states is a clear violation of these duties. It

infringes customary international laws on protection of marine environments. The

underwater noise created by such harmed the dolphins and thus affected Araguaia’s

ecotourism industry. This shows that RECO disregards its duties under the UNCLOS

and CBD.

RECO’s exploratory activities are subject to regulation, contrary to what RECO

claims. The expansive duty to protect and preserve marine ecosystem from exploratory

and research activities is provided under UNCLOS. Therefore states cannot even carry

out scientific research if it harms the environment. This precautionary principle is a

breach of customary law which RECO has failed to comply.5 A state is required only to

take precautionary measures to prevent potential harm. Risso failed to apply the

precautionary principle before conducting seismic surveys.

RECO lacked important information on the effect of such activities on marine life

particularly short-beaked dolphins and also pilot whales which migrate between

Araguaia and Risso and should have been cautious in commencing such activities.

Since RECO has done harm, it indicates the failure of Risso to apply such precaution

required in contravention to international law.

As to the migratory species, the dolphins and whales, harming them is also a

violation of the duty to avoid transboundary harm. CBD prohibits this harmful action.6

Any state is prohibited to sanction activities which severely affect biological diversity.

II. RISSO VIOLATES INTERNATIONAL LAW WHEN IT REFUSED TO CONDUCT AN

ENVIRONMENTAL IMPACT ASSESSMENT

5 CBD pmbl.6 CBD article 1; UNCLOS article 64

It is the duty of Risso to prepare an EIA before further carrying out seismic

surveys. This legal obligation is mandated by the treaties and international laws that

Risso is a party of. It must and should have studied the effect of the noise from seismic

surveys and whether it would affect neighbor states, Araguaia in particular. This violates

the rights of Araguaia as a party to the Espoo Convention which grants certain

procedural rights that are clearly breached by Risso in refusal to conduct an EIA for

activities which cause transboundary impact.7. Also a contracting party, Risso is

obligated to prepare EIA for proposed activities which may cause adverse

transboundary harm. The exploratory activities of Risso produce underwater noise

which causes physical harm to marine species. It is likely that this would affect

biodiversity and thus CBD requires Risso to conduct the EIA.8

Risso is still required to prepare an EIA even if it took additional measures.

These measures not likely reduce the effect of the seismic surveys. These measures do

not excuse Risso from conducting an EIA.

III. THE DOCTRINE OF NECESSITY DOES NOT EXCUSE RISSO FROM VIOLATING

INTERNATIONAL OBLIGATIONS.

Risso has the duty to protect the marine environment and prevent transboundary

impact and thus, required to conduct an EIA under international law.9 Its failure to

comply with these duties does not excuse Risso on the grounds of necessity. As

provided by law, a state may only invoke a necessity argument when 1.) it is the only

way for it to safeguard an essential interest against a grave and imminent peril, 2.) if it

does not seriously impair an essential interest of the States or of the international

community as a whole.10 Risso has failed to meet such requirements. Therefore it

cannot invoke the necessity doctrine.

7 Espoo Convention articles 3,5,68 CBD article 149 CBD article 3; Espoo Convention article 2; UNCLOS article 19210 Dharsiwa, Article 25 Section 1

In criminal prosecution, the accused must be proven guilty beyond reasonable

doubt. Admiral Panfilo Blas has no control over his subordinates who committed and

ordered the hostilities and atrocities and therefore not criminally liable. The elements of

war crimes were not satisfied by the atrocities allegedly committed on starvation as

method of warfare, on attacking civilians, or on excessive incidental death, injury and

damage during an armed conflict that contravenes international humanitarian law.

IV. ADMIRAL PANFILO BLAS IS NOT CRIMINALLY LIABLE FOR THE WAR CRIME

OF STARVATION.

Starvation as a war crime used as method of warfare, provided under Article 8

(B) and Article 25 (3) A, is committed when the perpetrators deprive the civilians of

objects that are indispensable to survival. Deprivation includes the scarcity of food,

crops, livestock, water supply11 as well as medicines. Insufficient or inadequate supply

of such commodities when intentional is a crime.

The principle of proportionality provides that civilians must not be subjected to

any attack and must be protected against any consequence resulting from military

operations.12 Civilians are distinguished from the military as those individuals who does

not participate actively in any way in the hostilities of war. This includes those soldiers

who laid down their arms. Admiral Blas permitted the goods be used by the civilians.

The civilians were not deprived of their survival needs.

The restriction imposed on the importation of goods were regulated, and not

prohibited, by putting check points in Yukule to stop the attacks and the transport of

weapons and explosives by Risson fishing boats. This must be contained to stop the

resistance and the skirmishes started by these boats. Checkpoints are valid exercise of

municipal regulation to seize prohibited items. Araguaia is not responsible for the

11 Article 54(2) Protocol I12 Article 51, Additional Protocol

stranded fishermen who were warned not to enter the maritime control zone or for their

lack of food.13

The ban on humanitarian aid is for security reasons. Under the Scorched Earth

policy, this act is lawful when the importing of civilian objects is used in direct support to

the adverse party.14 .

Individual criminal liability is constituted when the person planned, instigated,

ordered, committed or aided and abetted in the planning and execution of the crime.

The charges against Admiral Blas of starvation arise from certain circumstances, and

are not planned by him. He did not perform any act which would render him liable.

V. ADMIRAL BLAS IS NOT LIABLE FOR ATTACKING CIVILIANS.

1. The attack must be of military necessity to be a war crime. This requisite

admits of all destruction of life and limb of armed enemies and those destruction which

are unavoidable during war. 15 The attack on the Nirvana and fishing boats is of military

necessity. Maritime blockades such as the area around the Yukule can be imposed and

any vessel attempting to run it may be boarded or attacked.16 The attacks on the

Nirvana were launched after advanced warnings and were perpetuated after breach of

the maritime blockade.

2. Military objectives are limited to making an effective contribution to military

action or for the destruction, capture or neutralization for definite military advantage.

The Nirvana was alleged to be carrying weapons and explosives and breached the

blockade. Because it offers a definite advantage if attacked despite unavoidable

damage to civilians,17 the attack on Nirvana did not target civilians.

13 Compromis par 2414 Article 54, Additional Protocol I15 Article 15, Lieber Code16 ICRC Commentaries17 Article 15 Lieber Code

3. Criminal Intent must exist. In cases like this, the mere possibility of risk that a

crime may occur as a result of the person’s conduct is not enough for criminal liability to

exist. The risk of establishing Operation Maelstrom because of intelligence received that

the Nirvana carries weapons was reasonable. The purpose of which is strict

implementation and regulation of vessels within the controlled zone.

4. There must be effective control. This is an element of superior responsibility.18

Admiral Blas did not order Commander Tagle to board the Nirvana. Evidence shows no

effective control by Admiral Blas, only the lack of direct communication between them. It

was Commander Tagle who decided to board and seized the Nirvana. Therefore

Admiral Blas had no reason to know that the act will be committed.

VI. ADMIRAL BLAS DID NOT COMMIT THE WAR CRIME OF CAUSING

WIDESPREAD, LONG-TERM AND SEVERE DAMAGE TO THE NATURAL

ENVIRONMENT.

The Principle of Proportionality provides two factors for the collateral damage to

be not excessive relative to the anticipated substantial and direct military advantage.

That the military advantage is great and the environmental caused is not greater than

said attack.

The objective of the Araguaian Force was to stop the advancement of enemy

forces to stop the imminent danger of military attack and defend their sovereign claim

on Yukule.

The military necessity is great that it justifies the destruction of the natural

environment. But for the environmental damage to be widespread, long-term and

severe, it must be a period of at least decades to be long-lasting.19 The damage caused

18 Bemba 410,41119 Additional Protocol Article 35 (3)

by Araguaia was estimated to take a few years for the environment to return to its

former state.20

Araguaia was forced to employ such attack to stop the Risso army from reaching

Yukule.

To establish the liability of Admiral Blas under Article 25 3 (b) actus reus must be

present. To establish this, it must be proven that the order of Admiral Blas directly

affected the commission of the crime. Admiral Blas only gave a general order and not to

commit the alleged crime.

20 Compromis par. 36

CONCLUSION AND PRAYER FOR RELIEF

For the foregoing reasons, the Republic of Araguaia, Applicant, respectfully

requests the Court to adjudge and declare that:

1. The seismic surveys conducted by Risso contravene international law.

2. That Risso be required to cease seismic surveys until an Environmental

Impact Assessment is conducted for its exploratory activities.

3. That General Panfilo Blas be declared not criminally liable for intentionally

launching an attack in the knowledge of causing widespread, long-term and

severe damage to natural environment.

The Applicant State additionally prays that the Court may grant any provisional

relief that it may deem fit. The Court may also make any such order as it may deem fit in

terms of equity, justice and due conscience. And for this act of kindness the Applicant

State shall as duty bound ever humbly pray.

Respectfully submitted,

AGENTS OF APPLICANT