STATEMENT OF JURISDICTION

PURSUANT TO ARTICLE 79, PARAGRAPH 1, OF THE INTERNATIONAL COURT OF JUSTICE

RULES OF COURT (1978), THE REPUBLIC OF ROR HAS FILED A TIMELY PRELIMINARY

OBJECTION AS TO THIS HONORABLE COURT’S JURISDICTION OVER THE SUBJECT

MATTER OF THE DISPUTE BETWEEN RESPONDENT AND THE FEDERAL STATES OF FSA

(“APPLICANT”). SEE PRELIMINARY OBJECTION OF THE REPUBLIC OF ROR, DATED 05

MAY 2018. I F THIS COURT DETERMINES THAT IT DOES HAVE JURISDICTION TO DECIDE

THE SUBJECT MATTER OF THE DISPUTE , THIS COURT WOULD HAVE JURISDICTION OVER

THIS MATTER PURSUANT TO STATUTE OF THE INTERNATIONAL COURT OF JUSTICE,

ART. 36(6), SINCE APPLICANT SUBMITTED AN APPLICATION INSTITUTING PROCEEDINGS .

SEE APPLICATION INSTITUTING PROCEEDINGS , DATED 21 APRIL 2018.

 QUESTIONS RAISED

THE QUESTIONS PRESENTED BEFORE THE COURT FOR A RESOLUTION THEREOF, ARE:-

I. THE INTERNATIONAL COURT OF JUSTICE DOES NOT HAVE THE JURISDICTION

TO DECIDE THE PRESENT MATTER.

II. THE CONDUCT OF A PRIVATE COMPANY IS NOT ATTRIBUTABLE TO THE

REPUBLIC OF ROR.

III. EVEN IF THE COURT HAS JURISDICTION, REPUBLIC OF ROR HAS NOT

VIOLATED INTERNATIONAL LAW WITH RESPECT TO THE HARVESTING OF

SARGASSUM IN THE SARGASSO SEA.

 STATEMENT OF FACTS

Background

1. The Federal States of Alliguna (hereinafter referred as FSA) and The Republic of

Revels (hereinafter referred as ROR) are neighbouring coastal states located on Ugani,

a small continent located in the north Atlantic Ocean near the Sargasso sea. Both

countries’ coasts are approximately 250 nautical miles from the Sargasso Sea. FSA is

a developed country with a diversified economy, including a strong industrial sector

which relies heavily on manufacturing and energy. FSA has many rivers and dams,

some of which are used to generate hydroelectric power. ROR is a developing

country, and its economy is based largely on fishing and agriculture.

International Agreements

2. FSA and ROR are Members of the United Nations and are Parties to the Statute of the

International Court of Justice (ICJ). They are also parties to VCLT, CMS (wherein

European eel is listed on Appendix II of CMS, and both countries are range states),

UNCLOS, UNFCCC, and (have signed though not ratified) Paris Agreement to the

UNFCC, CBD, and have also fully participated and attended the Stockholm

Conference, Rio Conference, World Summit and the Rio+20 Conference. They both

are signatories to the Hamilton Declaration on Collaboration for the Conservation of

the Sargasso Sea.

Harvesting of Sargassum

3. In July 2016, Seaweed Energy Alternatives, Inc. (hereinafter referred ‘SEA

Corporation’) launched its latest biofuels initiative and began harvesting Sargassum
 from the Sargasso Sea to use for biofuel production. The SEA Corporation used its

vessel, the Columbus, to harvest Sargassum in the Sargasso Sea on the high seas

beyond national jurisdiction. The Columbus sailed under the flag of ROR. The SEA

Corporation received a subsidy for the Sargassum initiative from the Government of

ROR. The Government of ROR provided subsidies to select non-governmental

entities or persons to implement renewable energy projects.

Diplomatic Notes

4. ROR was notified by FSA that this sargassum harvesting would jeopardise the

delicate marine ecological balance which plays an integral role in the life cycles of

numerous species and would be detrimental especially to eels which spawns in the

Sargasso sea. Despite FSA’s claims of not acting within Precautionary Principle and

violating numerous treaty obligations including but not restricted to UNCLOS, CMS,

CBD, UNFCC, Rio Declaration, Hamilton declaration; ROR keep harvesting

sargassum in the Sargasso sea.

Dispute

5. From January 2017 to January 2018, additional negotiations, and mediation, were

conducted between FSA and ROR, but failed to resolve the dispute. In February,

2018, FSA requested ROR to submit to ICJ in under Article 287 of UNCLOS which it

refused. FSA’s Application against ROR, dated 21 April, 2018 was met with ROR’

Preliminary Objections contesting the court’s jurisdiction, dated 5 May 2018. ROR

maintains its objections to the ICJ’s jurisdiction and also argued that the conduct of

SEA corporation is not attributable to it. The SEA Corporation has continued to

harvest Sargassum in the Sargasso Sea.

 SUMMARY OF ARGUMENT

The ICJ does not have jurisdiction over this dispute because ROR has not agreed to

submit this dispute to the ICJ, and none of the relevant, controlling international

agreements require ROR to do so. This Court should acknowledge the parties’

disagreement, hold that it does not have jurisdiction to adjudicate this dispute, and

allow the parties to settle their dispute via mutually agreeable means.

II

The haresting of sargassum has been done by a private entity i.e SEA Corporation and

ROR is not attributable to its conduct as a state is only responsible only for acts of its

organs or of persons acting under its control and authorization.

III

Even if this Court has jurisdiction over this dispute, ROR did not violate any

international law by implementing its project. Rather, it acted in accordance with the

precautionary principle; and fulfilling its duty not to cause transboundary harm, ROR

fully complied with its international law obligations.

 ARGUMENTS ADVANCED

I. ICJ DOES NOT HAVE THE JURISDICTION TO DECIDE THE

PRESENT CASE

It is submitted before this Hon’ble court that ROR has not recognised ICJ’s jurisdiction

as compulsory thus, the present case warrants no merits to invoke the jurisdiction of the

court as per Article 36 (2)1.

A. Aliguna accepted the ICJ’s Jurisdiction as compulsory ipso facto only on the

condition of reciprocity on the part of other states while Revel did not.

ROR did not accepted the court’s jurisdiction as compulsory ipso facto under Art.

362.

The ROR in advanced has not accepted the compulsory jurisdiction of the ICJ and forcefully

invoking jurisdiction on ROR will violate its sovereign state status. Also FSA has accepted

the court’s jurisdiction of ICJ as compulsory ipso facto “only on the condition of reciprocity

on the part of other states”. ROR in this case has not consented to the jurisdiction of ICJ.

1
ICJ Statute
2
A. Article 36 (1). The jurisdiction of the Court comprises all cases which the parties refer to it and all matters
specially provided for in the Charter of the United Nations or in treaties and conventions in force.
B. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso
facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction
of the Court in all legal disputes concerning:

o the interpretation of a treaty;

o any question of international law;
o any question of international law;
o the existence of any fact which, if established, would constitute a breach of an international
obligation; d. the nature or extent of the reparation to be made for the breach of an
international obligation.
o the nature or extent of the reparation to be made for the breach of an international obligation.
C. The declarations referred to above may be made unconditionally or on condition of reciprocity on the part
of several or certain states, or for a certain time.
Therefore the condition of reciprocity for FSA is not fulfilled. Therefore the court lacks

jurisdiction to settle the disputes in the present case.

The ‘‘compulsory jurisdiction’’ of the International Court of Justice is not truly compulsory.

The Court’s jurisdiction is based on the consent of the parties. States have the option to

accept or not to accept the Court’s jurisdiction and can do so under terms and conditions they

determine themselves. The jurisdiction of the International Court of Justice (ICJ, ‘‘the

Court’’) is based on the consent of the parties. No State can be compelled without its consent

to submit a dispute with another State to international adjudication. In the words of the Court,

the principle that ‘‘the Court can only exercise jurisdiction over a State with its consent’’ is

‘‘a well established principle of international law embodied in the Court’s Statute”3.ROR as a

sovereign state has in advance cleared the stand of not considering ICJ’s jurisdiction as

compulsory Ipso facto in respect to matters concerning ART 36(2) Of its statute.

Consequently, the court lacks jurisdiction under interpretation of a treaty or a question on

international law as it was not agreed by both the parties to the dispute as compulsory ipso

facto.

The Fisheries Jurisdiction4 case

This case involved interpretation of a reservation made to an acceptance of

jurisdiction under Article 36 of the ICJ Statute. The ICJ held that it had no jurisdiction due to

the reservation to acceptance of jurisdiction made by Canada.5

3
Case of the Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom and United
States), Preliminary Question, ICJ Reports 1954, 19, 32; See also Case Concerning East Timor (Portugal v.
Australia), Judgment, ICJ Reports 1995, 87, 101, para.26.
4
Fisheries.Jurisdiction.(Spain.v..Can.),.1998.I.C.J..Rep..432
5
Id.
This first step establishes a State’s consent to assume the obligations incumbent upon it under

the Statute but is not sufficient to establish the jurisdiction of the Court to adjudicate a

specific legal dispute. A second, independent act of consent is required—an acceptance of the

Court’s jurisdiction under the relevant provisions of the Statute. As the Court has stated, ‘‘in

the absence of a clear agreement between the Parties, ... the Court has no jurisdiction to go

into ... the merits’6

This second, independent act of consent can be expressed in various forms. One

significant distinction among those forms is whether the State consents to submit to

the Court’s jurisdiction a specific, already existing dispute, or all or certain categories

of potential future disputes. In this case ROR in advance has not invoked its consent

to the jurisdiction of ICJ as compulsory ipso facto.

Doctrine of Forum Prorogatum:

According to the Doctrine of Forum Prorogatum “The jurisdiction of the

International Court of Justice (ICJ) in a contentious case is based entirely on the

consent of states.”. A decision that it has prima facie jurisdiction to indicate

provisional measures of protection leaves the Court entirely free, to find that it in fact

lacks jurisdiction. The Court shall, thus, take no action in the proceedings until

consent to its jurisdiction has been explicitly given by the respondent State.7

In the present matter, ROR has not consented to the court’s jurisdiction as compulsory

ipso facto under Article 36 of the ICJ statute. The Court shall, thus, take no action in

6
Ambatielos Case (Greece v. United Kingdom), Preliminary Objection, Judgment, ICJ Reports 1952 I.C.J. 28
(July 1)
7
Anglo-Iranian Oil Company (Preliminary Objection) case, [Anglo-Iranian Oil Co., U.K. v. Iran], Judgment ICJ
Reports 1952 I.C.J. 93 (July 22), p.28.
 the proceedings until consent to its jurisdiction has been explicitly given by the

respondent State.

A State may give its consent through conduct explicitly or implicitly manifesting its intention

to accept the Court’s jurisdiction with respect to a dispute.8

The consent of a State to adjudicate a specific dispute is thus established on the basis

of its unilateral declaration. Such consent has to be established both with respect to

the claimant and with respect to the defendant State. Therefore, the compulsory

jurisdiction of the Court derived from Article 36(2) is still based on the consent of the

parties, which is expressed in their respective unilateral declarations. Declarations of

acceptance of the compulsory jurisdiction of the Court are facultative, unilateral

engagements, that States are absolutely free to make or not to make. In making the

declaration a State is equally free either to do so unconditionally and without limit of

time for its duration, or to qualify it with conditions or reservations.9

Judge McNair’s observation that Article 36(2) of the Court’s Statute is ‘‘in the nature

of a standing invitation’’ to Member States to accept compulsory jurisdiction10 also

applies with respect to declarations under Article 36(2) themselves, which may also

be considered ‘‘in the nature of a standing invitation’’ to other States that have or will

accept compulsory jurisdiction to submit disputes before the Court. In the words of

8
See, e.g. Rights of Minorities in Upper Silesia (Minority Schools) (Germany v. Poland), Judgment, 1928
PCIJ, Series A, No.15, 4, 24. See also Chorzow Factory (Germany v. Poland), Judgment (Merits), 1928 PCIJ,
Series A, No.17, 4, 37 (Order of Sept. 13); Socie´te´ Commerciale de Belgique (Belgium v. Greece), Judgment,
1939 PCIJ ICGJ 236, Series A/B, No.78, 160, 174. For a survey of these cases and a discussion of the whole
subject, see C.H.M. Waldock, Forum Prorogatum or Acceptance of a Unilateral Summons to Appear before the
International Court, 2 International Law Quarterly (1948), 377.
9
Case of Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Merits,
Judgment. I.C.J. Reports 1986, p. 14. Jurisdiction and Admissibility, Judgment, ICJ Reports 1984, 392, 418,
para.59.
10
Individual opinion of Judge McNair, Anglo–Iranian Oil Co. Case (United Kingdom v. Iran),
Anglo-Iranian Oil Co., U.K. v. Iran, Judgment, 1952 I.C.J. 93 (July 22)
Preliminary Objection, Judgment, ICJ Reports 1952, 93, 116.
 Briggs, the Court’s jurisdiction pursuant to Article 36(2) ‘‘is in the nature of a general

offer, made by declarant to all other States accepting the same obligation, to

recognize as Respondent the jurisdiction of the Court ...11’’ In this regard, a

declaration under Article 36(2) is similar to a treaty obligation where one party

consents to join a system of rights and obligations based on a treaty. 12 This was

recognized by the Court on several occasions in some of its early cases. 13 The Court

in the case of(Cameroon v. Nigeria)14, ruled that once a State makes a declaration

under Article 36(2), it becomes a ‘‘sitting duck’’, since it extends a standing offer to

all other States accepting the same obligation to adjudicate disputes before the Court.

Hence, the current court lacks jurisdiction in this case.

I. Issues arise primarily under the CMS.

The court does not have jurisdiction to hear this matter as stated by FSA. The issues in this

matter arise primarily because the CMS.

A. CMS qualifies the principle of Lex specialis acting as a Special Regime

11
H.W. Briggs, Reservations to the Acceptance of Compulsory Jurisdiction of the International Court of Justice,
93 Recueil des Cours (1958), 229, 245.
12
See H. Lauterpacht, The Development of International Law by the International Court (1958), 345–6; M.O.
Hudson, The Permanent Court of International Justice 1920–1942: A Treatise (1943), 473, n.1, who pointed out
that the declarations effective as of the end of 1934 ‘‘were equivalent to 861 bipartite agreements’’; C.H.M.
Waldock, Decline of the Optional Clause, 32 BYBIL (1955–56), 244, 254.

13
See Electricity Company of Sofia and Bulgaria (Belgium v. Bulgaria), Electricity Company of Sofia and
Bulgaria (Belg. v. Bulg.), 1939 P.C.I.J. (ser. A/B) No. 77 (Apr. 4), Preliminary Objection, Judgment, 1939 PCIJ,
Series A/B, No.77, 87; Case Concerning Right of Passage over Indian Territory (Portugal v. India),[1960],ICJ
Rep 6 Preliminary Objections, Judgment, ICJ Reports 1957, 125, 146; Case of Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. the United States), Militarv and Puramilitary Activities in und
aguinst Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, Jurisdiction
and Admissibility, Judgment, ICJ Reports 1984, 392, 418, paras 59–60
14
Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Land and Maritime Boundary between Cameroon and Nigeria, Preliminary Objections, Judgment, I. C. J.
Reports 1998, Preliminary Objections of the Federal Republic of Nigeria, Vol.I, December 1995, paras 1.5, 1.8,
1.9, 1.24. See also Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria),
Preliminary Objections, Judgment, ICJ Reports 1998, 275, 290, para.22.
The maxim “lex specialis derogat legi generali” suggests that whenever two or more norms

deal with the same subject matter, priority should be given to the norms that are more

specific. Special law has priority over general law by the fact that it takes better account of

the particular features of the context in which it is to be applied than any applicable general

law.15 A group of rules and principles concerned with a particular subject matter may form a

special regime and be applicable as lex specialis and for interpretative purposes such regimes

may often be considered in their entirety.16 Hence, if the lex specialis contains dispute

settlement provisions applicable to its content, the lex specialis prevails over any dispute
17
settlement provisions in the lex generalis. In the instant matter since only the CMS

provides a moratorium on European eels as it is mentioned in annexure II of CMS,

specifically, it is the more relevant and applicable statute. 18

The Statute of the ICJ dictates that the ICJ adjudicates disputes in which (1) parties refer the

matter to the ICJ, or (2) the ICJ’s jurisdiction is specifically provided for in applicable,

binding treaties and conventions.19 “The ICJ’s jurisdiction only exists within the limits of

which it has been accepted,”73 and both ROR and Aliguna did not agree to refer this dispute

15
Mavrommatis Palestine Concessions (Jurisdiction) Case [Greece v. United Kingdom], Mavrommatis
Palestine Concessions (Greece v. U.K.), 1924 P.C.I.J. (ser. B) No. 3 (Aug. 30) PCIJ, Ser. A., No. 2, at p.30-31
16
Tunisia/Libya Continental Shelf case [Tunisia v. Libya Arab Jamahiriya], 1982 I.C.J. 18 (Feb. 24) Merits
Judgment, 24 February 1982, ICJ Reports 1982, p.18¶38.
17
Southern Bluefin Tuna Case (Award on Jurisdiction and Admissibility)[Australia/New Zealand v. Japan], 4
August 2000, p. 23¶38. (hereinafter ‘Bluefin Tuna Case’)
18
Tulio Treves, “The Law of the seas ‘System’ of Institutions,” MAX PLANK YB. UNITED NATIONS LAW
(1998) 325; Bernard H Oxman, “The duty to respect generally accepted International Standards,” NEW YORK
UNIVERSITY JOURNAL OF INTERNATIONAL LAW & POLICY, 24(1991): 109.
19
Statute of the International Court of Justice, art. 36(1), 26 June 1945, T.S.
993. 73 Fisheries Jurisdiction (Spain v. Can.), Fisheries Jurisdiction (Spain v.
Can.), 1998 I.C.J. 432 (Dec. 4) Judgment, 1998 I.C.J 45, 48 (Dec. 4).
to the ICJ.20 Aliguna recognizes the ICJ’s jurisdiction as compulsory for disputes concerning

interpretation of treaties and questions of international law, but ROR did not.21

Moreover, the CBD focuses on conserving biological diversity through finding

sustainable ways to use the Earth’s wealth of living organisms while the subject matter of

dispute in this case is European Eels, which is specially dealt within CMS under Annex II.

Hence CMS is Lex specialis and should prevail over CBD. Therefore, the current court (ICJ)

lacks jurisdiction under CBD and therefore the Parties may, by mutual consent, submit the

dispute to arbitration, in particular that of the Permanent Court of Arbitration at The Hague,

and the Parties submitting the dispute shall be bound by the arbitral decision according to

CMS.

20
R. at 10.
21
R. at 4.
 B. This Court Does Not Have Jurisdiction Under The CBD Because The

CBD Does Not Relate To This Dispute.

To acquire jurisdiction under a treaty, the court whose jurisdiction is at issue must

determine whether the parties’ claims “reasonably relate” to the “legal standards of the

treaty” at issue In its determination, the court must focus on how the parties formulate the

dispute, by examining their final submissions, diplomatic exchanges, and other relevant

evidence.22

The CBD focuses on conserving biological diversity through finding sustainable ways

to use the Earth’s wealth of living organisms.23 The CBD’s objectives are to conserve the

variability of living organisms24 through sustainable use of the oceans’ resources and

equitable sharing of the marine environment’s benefits.25 The CBD does not directly relates

to the provisions of the high seas and migratory species in particular .Rather it deals with

conservation of biological diversity through finding sustainable ways to use the Earth’s

wealth of living organisms.

This dispute does not concern fair use and variability of the Earth’s wealth of living

organisms. Rather, it concerns Revel’s renewable energy project in particular biofuels and

placement of sargassum into the Sargasso sea.26 Aliguna may argue that the deaths of Eels

22
Id. at 39.
23
Convention on Biological Diversity, 6 June 1992, 1760 U.N.T.S. 79, Executive Summary [CBD].
24
Id. at art. 2.
25
Id. at art. 1.
26
R. at 5–7.
is because of harvesting of sargassum in the Sargasso sea.27 But this argument lacks merit

because no evidence suggests that the eel’s deaths were related to Revel’s renewable energy

project in particular biofuel. Thus, the CBD is not relevant to this dispute. Moreover, CBD

mandates that in the event of a dispute between Contracting Parties the parties concerned

shall seek solution by negotiation. If the parties concerned cannot reach agreement by

negotiation, they may jointly seek the good offices of, or request mediation by, a third party28.

This procedure has not been complied with, in the instant matter.

Conversely, the CMS focuses on preserving “the migratory species” and THE

EUROPEAN EEL is a facultatively catadromous migratory species and is listed in Appendix

II of it(CMS) and both countries are range states.Therefore CMS is lex specialis in this case

and the dispute settlement method under CMS which has been agreed upon by both the

parties is art. 1329.

Therefore, according to the dispute settlement mechanism under CMS, the current court lacks

jurisdiction. Thus, because CMS applies directly to this dispute, and the CBD does not, this

Court should hold it does not have jurisdiction under the CBD to adjudicate this matter.

Even if this Court decides both the CBD and the CMS apply, the well established principle of

lex specialis provides that, where two treaties apply to the conflict of same subject-matter,

27
See R. at 8.
28
Convention on Biological Diversity, article 6 June 1992, 1760 U.N.T.S. 79, Executive Summary
[CBD].
29
ART 13(1) -Any dispute which may arise between two or more Parties with respect to the interpretation or
application of the provisions of this Convention shall be subject to negotiation between the Parties involved in
the dispute.
ART 13(2). If the dispute cannot be resolved in accordance with paragraph 1 of this Article, the Parties may,
by mutual consent, submit the dispute to arbitration, in particular that of the Permanent Court of Arbitration at
The Hague, and the Parties submitting the dispute shall be bound by the arbitral decision.
priority should be given to the more specific treaty.30 Lex specialis applies to a treaty’s

dispute settlement provisions as well as its substantive content.31

Sometimes legislation contemplates complex versions of the lex specialis principle. A

relevant example with broad application in international law, art. 2 of the Annex 2 of the

WTO Understanding on Rules and Procedures Governing the Settlement of Disputes:

The rules and procedures of this Understanding shall apply subject to such special or

additional rules and procedures on dispute settlement contained in the covered agreements as

are identified in Appendix 2 to this Understanding. To the extent that there is a difference

between the rules and procedures of this Understanding and the special or additional rules

and procedures set forth in Appendix 2, the special or additional rules and procedures in

Appendix 2 shall prevail. In disputes involving rules and procedures under more than one

covered agreement, if there is a conflict between special or additional rules and procedures

of such agreements under review, and where the parties to the dispute cannot agree on rules

and procedures within 20 days of the establishment of the panel, the Chairman of the Dispute

Settlement Body provided for in paragraph 1 of Article 2 (referred to in this U ersta g as the

“DSB”), consultation with the parties to the dispute, shall determine the rules and

procedures to be followed within 10 days after a request by either Member. The Chairman

shall be guided by the principle that special rules should be used where possible, and the

rules and procedures set out in this Understanding should be used to the extent necessary to

avoid conflict.

This provision clearly shows that the lex specialis principle is part of positive law,

where it may function equally as a criterion to solve or prevent antinomies and as a criterion

30
Silvia Borelli, The (Mis)-Use of General Principles of Law: Lex specialis and the Relationship
Between International Human Rights Law and the Laws of Armed Conflict, 46 IUS Gentium 265, 266
(2015).
31
Southern Bluefin Tuna (New Zealand-Japan, Australia-Japan), 2000 Arbitral Tribunal 1, 3 (Aug.
4). 102 London Protocol, at art. 2.
to connect and unify special and general rules in order to achieve a more complete regulation

of a certain matter. This has particularly been the case following the use of the term by the

International Court of Justice in the Nuclear Weapons and The Wall Advisory Opinions case.

Lex specialis demands that the Court apply the CMS because it relates specifically to

this dispute. .32 Thus, because the CMS applies to this dispute more specifically than the

CBD does, this Court lacks jurisdiction pursuant to the CBD.

C. This Court Does Not Have Jurisdiction Under The Paris Agreement or

The UNFCCC

To acquire jurisdiction under the UNFCCC and the Paris Agreement, both

agreements’ legal standards must reasonably relate to this dispute.33 The Paris agreement and

the UNFCCC both focus on combating climate change.34 The UNFCCC aims to stabilize

atmospheric greenhouse gases.35 The Paris agreement further implements the UNFCCC’s

objectives by committing its parties to internationally binding emission reduction targets. 36

The Paris Agreement, focuses on enhancing the implementation of the Convention,

including its objective, aims to strengthen the global response to the threat of

climate change, in the context of sustainable development and efforts to eradicate

poverty.37 Neither the UNFCCC nor the Paris agreement involves provisions relating

to marine life for implementing renewable energy projects in particular biofuel nor did they

deal with High seas and migratory species in particular.

32
CBD, at art. 1.
33
See Southern Bluefin Tuna, at 38–39.
34
See generally United Nations Framework Convention on Climate Change, 9 May 1992, 1771
U.N.T.S. 107 [UNFCCC]; Paris agreement to the UN Framework Convention on Climate Change, 11
Dec. 1997, 2303 U.N.T.S. 148 [Paris Agreement]
35
UNFCCC, at art. 2.
36
See generally Paris Agreement note 106.
37
Paris agreement statute Article 2
 This dispute is not reasonably related to either the UNFCCC or the Paris agreement.

While Revel is very concerned with climate change and believes its renewable energy project

will provide much-needed research and potentially mitigate climate change’s harmful

effects,38 climate change is not the subject of this dispute. This dispute relates to whether

Revel’s placement of sargassum into the high seas of the North Atlantic Ocean violates

Revel’s international law obligations.39 Thus, this Court lacks jurisdiction over this dispute

pursuant to the UNFCCC and the Paris Agreement.

THIS COURT DOES NOT HAVE JURISDICTION UNDER UNCLOS:

The Alliguna and Revels are States Parties to the United Nations Convention on the Law of

the Sea.(UNCLOS). Pursuant to Article 287 of UNCLOS, when Alliguna and Revels signed

UNCLOS, Alliguna made a written declaration and chose the ICJ for the settlement of

disputes concerning the interpretation or application of UNCLOS, while Revels made a

written declaration and chose the International Tribunal for the Law of the Sea for the

settlement of disputes concerning the interpretation or application of UNCLOS.

Therefore, since Revels has not agreed to submit the dispute to the ICJ in case of dispute

arising from interpretation and application of UNCLOS ,but submit it to ITLOS, the current

court lacks jurisdiction.

38
R. at 6.
39
R. at 4–12.
 II. THE CONDUCT OF A PRIVATE COMPANY IS NOT ATTRIBUTABLE

TO ROR.

A. The conduct of SEA Corporation is not attributable to ROR:

A State is responsible only for acts of its organs or of persons acting under its control

and authorization40.The acts of a person or entity are attributable to the State only where the

internal law of the State grants such person or entity the status of an organ 41, or where it

empowers such person or entity to exercise elements of governmental authority.42

B. SEA Corporation is private person.

Private ends’ are those activities which are lacking in ‘state sanctioning’. This is the

position that was adopted by the US Court of Appeals in Sea Shepherd, which ‘defines acts

taken for private ends as those not taken on behalf of a state’43.The conduct of a person or

group of persons not acting on behalf of the State is not considered as an act of the State

under international law44. Here Sea Corp is a large privately owned company in ROR45 and

his acts are not taken on behalf of states. Hence conduct of Sea Corporation is not attributable

to ROR.

C. Conduct of Sea Corporation has not been acknowledged and adopted by ROR

40
ARSIWA, at, art.8.
41
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc.
A/RES/58/83/Annex (2002), art.4(2) [Articles on State Responsibility]; CRAWFORD, THE
INTERNATIONAL LAW COMMISSION‟S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION,
TEXT AND COMMENTARIES 94 (2002)
42
Articles on State Responsibility, art.5; CRAWFORD, supra note 49, at 100-01
43
Institute of Cetacean Research v. Sea Shepherd Conservation Society
44
ARISWA supra 41
45
Annex A PARAGRAPH ,13
 One of the exceptions to the aforementioned rule of non attribution of conduct is

when the state acknowledges or adopts private conduct as its own.46. This does not mean

mere factual acknowledgement47, i.e. to say mere ‘approval’ or ‘endorsement’ of conduct,

does not involve assumption of responsibility.48 The phrase “acknowledges and adopts the

conduct in question as its own” is intended to distinguish cases of acknowledgement and

adoption from cases of mere support or endorsement49 . Here in ROR has only highlighted

the Sargassum initiative issue50 .but it has not assumed any responsibility to adopt these

activities as its own .Mere support by ROR does not assume responsibility .It clearly denied

the existence of any control of the governments over such private acts.51

D. SEA CORPORATION does not exercise any elements of governmental

authority.

Elements of governmental authority are exercised when a particular entity has been

empowered by the law of that state to exercise functions of a public character normally

exercised by state organs.52

The assessment should be based upon a comparative standard and it should be

determined from an objective point of view whether the act is normally regarded as

governmental in a contemporary setting.53 Here there is no authorization of any acts of SEA

Corporation by the government of ROR, thereby, absolving ROR of all responsibility for

private acts of Sea Corporation.

46
ARISWA, 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, available at:
http://www.refworld.org/docid/3ddb8f804.html [accessed 2 August 2018 at, Art. 11
47
SHAW, INTERNATIONAL LAW 119 (2008)
48
ARSIWA, supra note 46, art.11
49
The separate question of aid or assistance by a State to internationally wrongful conduct of another State is
dealt with in article 16
50
Record A, ¶16
51
Record A, 21
52
ARSIWA, supra note 46, art.5
53
Rudolf Dolzer & Christoph Schreuer, Principles Of International Investment Law 200 (2008
 E. The conduct of SEA Corporation has not been directed or controlled by the

government of ROR.

Conduct of private entities is attributable to the state when there exists a specific

factual relationship between the entity and the state.54 and the entity is acting on the direction

and control55 of the State.56 Here, Revel has not directed or controlled any activity of SEA

Corporation even from the time of its inception this initiative was there.

F. Attributing SEA CORPORATION’s conduct to ROR is against general

principles of international law.

i. Attribution is against international norms of civil liability:

Various environmental treaties demonstrate a willingness of states to

impose civil liability directly on corporations for certain violations of

international environmental law57. Commentators refer to them as “civil

liability” treaties58. These are “transboundary civil litigation” regimes wherein

the MNCs are held liable for the harm caused by them59. Hence, ROR should

not be held liable for the acts of a private company and responsibility, if any,

ought to be first entailed on SEA Corporation.

54
ARSIWA, supra note 46, art. 8. See also, Zafiro case 1925, R.I.A.A. 60; Stephens case 1927, R.I.A.A. 267-
268; Lehigh Valley Railroad Company & Others (U.S.A v. Germany) 1930, R.I.A.A. 84
55
Notion of ” Control” [D]espite the heavy subsidies and other support provided to them by the
United States, there is no clear evidence of the United States having actually exercised such a degree
of control in all fields as to justify treating the contras as acting on its behalf
56
Military and Paramilitary Activities in and against Nicaragua, supra note 9
57
Mara Thophila, Moral Monsters under the bed : Holding Corporations Accountable for Violations of the Alien
tort Statue after Kiobel v. Royal Dutch Petroleum Co.,79 FORDHAM L.REV.2859(2011)
58
Boyle, Making the Polluter Pay: Alternatives to State Responsibility in the Allocation of Transboundary
Environmental Costs, in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM, 363-67
(Francesco Francioni & Tullio Scovazzi eds., 1991); Karl Zemanek, Causes and Forms of International
Liability, in CONTEMPORARY PROBLEMS OF INTERNATIONAL LAW, 319-327 (Bin Cheng & E.D.
Brown eds., 1988)
59
Steven Ratner, Corporation And Human Right : A THEORY OF LEGAL RESPONSIBILITY ,456 2001
 CONCLUSION AND PRAYER FOR RELIEF

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

authorities cited, The Republic of ROR seeks an order of this Hon’ble court to adjudge and

declare that:

1. The ICJ does not have the jurisdiction to determine the matter.

2. The Republic of ROR is not attributable to the conduct of a private company i.e. SEA

Corporation.

3. Even if the court has jurisdiction, Republic of ROR has not violated any international

law with respect to sargassum harvesting in Sargasso Sea.

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

equity, and good conscience.

FOR WHICH THE RESPONDENT SHALL FOREVER PRAY.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

COUNSELS FOR THE RESPONDENTS