ROR VIOLATED THE LAW OF SUSTAINABLE DEVELOPMENT

The right to development should be fulfilled so to meet equitably the developmental and
environmental needs of the present and future generations. 1 This need to reconcile development
with protection of the environment is aptly expressesed in the concept of sustainable development. 2
The development decision should not disregard environmental consideration 3 and States are
obligated to use its elements sustainably.4 Parties are obliged to develop national plans and programs
for conservation and sustainable use of biological diversity. 5 This necessarily includes the duty to
formulate strategies to avoid biodiversity loss.

harvesting of sargassum by ROR harms the environment and biological diversity of sargasso sea
which also includes critically endangered species like european eels. Thus, by harming the
biodiversity of these species there is a possibility of extinction which violates the principle of
sustainable development.

Environmental law and law of development stands not as alternatives but as mutually reinforceing,
integral concepts, which requires where development may cause significant harm to the
environment their is a duty to prevent, or atleast mitigate such harm.6 It the responsibility of the
state to protect the environment and the earth’s natural resources. 7 NCD commitments need to be
fulfilled considering sustainable developmentand environmental integrity. 8

Therefore, ROR cannot violate the principle of sustainable development in order to fulfill its NDC
commitments.

1 Stockholm declaration principle 1 Paris agreement CP.21, Rio declaration principle 3, International law & the
environment , patricia birnie, alan boyle, Catherine redgwell, age no. 115.
2 gabcikovo- nagymars case ICJ report (1997)7, para 140; iron rhone arbitration, PCA (2005) para 59; lowe and
Higgins, in boyle ajd freestone(eds), international law and sustainable development(oxford, 1999) chs2 and 5.
3 International law & the environment , patricia birnie, alan boyle, Catherine redgwell, age no. 117
4CBDart.8(I),8(c),UNFCCcart.3(4)Tore.Henriksen,.Conservation.and.Sustainable.Use.of.Arctic.Marine.Biodive
rsity:.Challenges.and .Opportunities,.Arctic.Review.on Law.and.Politics.(2010).

5 Art. 1,6 10(a) Convention on Biological Diversity, Art. 6 1760 UNTS 79; 31 ILM 818 (1992), paris agreement
109.
6 CBD, art 10(b) rhine arbitration, PCA (2005) para 59. Sustainable development in international and national
alw, ch 2 and 3.
7 Stockholm declaration,Principle 1 and 2.
8 Article 6,7,8(1), 10 paris agreement.
 1.1.THE SEA CORPORATION VIOLATED THE PRECAUTIONARY PRINCIPLE.

“Where there are threats of serious or irreversible damage, lack of full scientific certainty
shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation”.9 There is sufficient state practice and opinio juris to consider PP
custom.10 The Convention on Biological Diversity also attaches importance to the
precautionary principle.11
It is impermissible to carry out an activity unless it can be shown that it will not cause
unacceptable harm to the environment.” 12
Application of PP as custom requires threat of environmental damage, of a serious or
irreversible nature, and scientific uncertainty, where no causal link between an action and
environmental damage can be established.13

Since the European eels are critically endangered species, a negative change in the
ecosystem would lead to an irreversible damage i.e. extinction of species. Despite continuous
objections from the FSA, the Respondent has continued to carry on its activities which is
leading to a harm which is scientifically plausible and no precautions have been taken on the
part of the ROR to avoid or diminish the harm. Therefore, we submit that the Respondent
has violated the precautionary principle.

Violation of Transboundary Harm

9 Rio Declaration.on.Environment.and Development, Principle.15,.U.N .Doc A/CONF.151/5/Rev.1

(16.June.1992).

10 See.Arie.Trouwborst,.Evolution.and.Status.of.the.Precautionary.Principle.in.International.Law.(2002);Agne.
Sirinskiene, The.Status.of.Precautionary.Principle:.Moving.Towards.a.Rule.of.Customary.International.Law.
(2009),. David Freestone.&.Ellen.Hey,.The.Precautionary.Principle.and.International.Law.
(1995);.and.Tim.O’Riordan.&. James Cameron,.Interpreting.the.Precautionary.Principle.(1994).

11 Convention on Biological Diversity, Art. 6 1760 UNTS 79; 31 ILM 818 (1992).

12 P. BIRNIE AND A. BOYLE, International Law and the Environment, 118 (2nd ed., 2002).

13 IUCN.Council,.Guidelines.for.Applying.the.Precautionary.Principle.to.Biodiversity.Conservation.and.Natural
.Resource.Management,.67th.Meeting.(2007).
“Activities within the jurisdiction of a state should not cause harm to the environment of the other
states or common spaces.”14 States are required to take prior permission and consult in good faith
before undertaking activities that may have significant adverse transboundary environmental
effects.15 In the exploration, exploitation and development of natural resources, states must not
produce significant harmful effects in zones situated outside their national jurisdiction. 16

The obligation to prevent, reduce and control environmental harm is no longer solely
bilateral in character but in relation to the high seas ot the global atmosphere it benefits the
international community as a whole and to that extent operates erga omnes. 17
states may be liable for transboundary damage caused by wrongful acts or omissions to other
neighboring states.18 Under this obligation, States should not knowingly allow its territory to be used
for acts contrary to the rights of other States. 19

The high seas are covered under areas beyond national jurisdiction. The Eels after spawning return
back to the inland waters of the FSA. The harvesting of Sargassum will lead to the extinction of these
endangered species which are linked with the history, culture and religion of the FSA. Thus, we
submit that the activities of SEA Corporation are violating the principle of transboundary harm.

- prevention of erosion of sand dunes, formation of sand dunes

-ROR didn’t take prior permission of FSA

Violated the duty of conservation under cbd

14 Principle 2 of rio declaration
15 Principle 19of rio declaration
16 UNGA Res 2995 XXVII(1972).
17 Charney, in francioni and scovazzi, international responsibility for environmrntal harm.
18 Trail Smelter Arbitration (United States of America v. Canada) Arbitral Award, 1941 UNRIAA, vol. III, p.1965.

(Mar. 11).

19 Corfu Channel Case (United States v Albania) 1949 ICJ Rep. 22 (Dec. 15); Trail Smelter Arbitration (United

States of America v. Canada) Arbitral Award, 1941 UNRIAA, vol. III, p.1965. (Mar. 11); Nuclear Tests (Australia v

France) Question of Jurisdiction and Admissibility, 1974 ICJ Rep. (Dec. 20).
The main objective of CBD is the conservation of biodiversity. 20 States has a fundamental obligation
for in- situ conservation of biological diversity in the ecosystem even in the areas beyond national
jurisdiction21 coopreating with non governmental sector, 22 and other states. 23 states shall manage
biological resouces in order to conserve biodiversity within protected area. 24and maintain viable
population of species.25

ROR has failed its obligations under CBD for conservation of biodiversity as harvesting sargassum
from the sargasso sea (protected area)26 negetively affects the ecosystem of sargasso sea on which
many species are dependent for there development and reproduction including the critically
endangered species.

VIOLATION OF CUSTOMARY LAW

UNCLOS
20 Art. 1 CBD
21 Art. 5, CBD
22 Preamble , CBD
23 Art. 5, CBD
24 Art. 8(c), CBD
25 Art. 8(d), CBD
26 EBSA
 States have the obligation to adopt measures27 for protection and preservation of marine
environment.28which includes conservation of the living resources.29 . These obligations
range from within30 and beyond31 the respective territories of states.states shall not be
released from its obligation to protect and preserve the marine environment in exercising
sovereign right to exploit marine living resources. 32
States Parties in good faith shall fulfill the obligations under UNCLOS and shall exercise the
rights, jurisdiction and freedoms recognized in this in order that it would not constitute an
abuse of right.33 The concept of “abuse of rights” provides that States are responsible for
their acts, which are not unlawful in the sense of being prohibited(general principle of law)34,
however cause injury to other states.35
All States have the duty to take, or to cooperate with other States in taking, such measures
for their respective nationals as may be necessary for the conservation of the living resources
of the high seas.36 It is considered as an erga omnes obligation to conserve high seas living
resources.37
Ror by harvesting sargassum from sargasso sea harms the essential biodiversity of marine
species including european eels which are high migratory species and are a part of culture
heritage and tradition of alliguna. Thus, ror violated its international obligation under
customary laws.

- test of due diligence

VIOLATED ITS OBLIGATION UNDER UNFCCC.

27 United Nations Convention on the Law of the Sea, Art.61, 10 Dec.1982, 21 I.L.M.1261.

28 United Nations Convention on the Law of the Sea, Art. 192, 1982 21 I.L.M.1261 (Dec. 10).

29 Southern Bluefin Tuna Case (New Zealand v Japan, Australia v Japan), Award on Jurisdiction and

Admissibility, 2000, 38 ILM 1624 p.19 (Aug. 4).

30 Ibid. Art.61, ¶2; Art.56, ¶1.

31 Ibid. Art. 117.

32Art. 193, UNCLOS, RUDIGER WOLFRUM & NELE MATZ, The Interplay of the United Nations Convention on

the Law of the Sea and the Convention on Biological Diversity (2000).

33 Article 300, UNCLOS.

34 Michael Byers, Abuse of Rights: An Old principle, a New Age, 47 MCGILL L. J., 390, 391 (2002).

35 HERSCH LAUTERPACHT, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY 286 (2011).

36 United Nations Convention on the Law of the Sea, Art. 117, 10 Dec.1982, 21 I.L.M.1261.

37 The Icelandic Fisheries Jurisdiction case, as later followed by the Estai case, recognized
UNFCCC acknowledge the role and importance in marine ecosystems of sinks and reservoirs of
greenhouse gases.38 States shall promote enhancement of sinks and reservoirs of all greenhouse
gases like oceans as well as other terrestrial, coastal and marine ecosystems. 39 The oceans, are
known as “carbon sinks,” meaning that they absorb C02 from the earth’s atmosphere. 40

Oceans are a sink for as much as 30% of carbon dioxide emissions caused by humans.
Sargassum plays a role in decreasing the impacts of global climate change, just as other
plants do, because it sequesters carbon dioxide within its tissues as it grows. When
Sargassum dies and sinks to the ocean floor, it transports carbon to the deep sea food web and
removes carbon dioxide from the biogeochemical processes that are currently leading to
increasingly acidic oceans. Further, other seaweeds grow on the surface of Sargassum,
increasing the carbon sequestration activity of the algae. It is not known how much carbon
dioxide Sargassum sequesters, but it has been suggested that, in addition to carbon fixation
by terrestrial forests, the growth of algae41 ROR by harvesting sargassum has breached its
obligation under UNFCCC to promote sinks in the sargasso sea and hence liable under the
international law.

BREACH OF ONE TREATY IN ORDER TO COMPLY WITH ANOTHER IS

CONTRARY TO PACTA SUNT SERVANDA.
Every treaty in force is binding upon the parties to it and must be performed by them
in good faith.42 this rule consists of two elements. 43 First, every treaty in force is
binding upon the parties to it: a state which is party to several conventions cannot

38 UNFCCC, Preamble.

39 UNFCCC, Article 4 (1) (d).

40 CHRIS WOLD ET AL., CLIMATE CHANGE AND THE LAW 2-3 (2009).

41 Raven, J. A., and P. G. Falkowski.

1999. Oceanic sinks for
atmospheric CO2. Plant, Cell and
Environment 22:741–755.
42 Art..26, VCLT.
43 Gabčíkovo–Nagymaros.Project.(Hung..v..Slov.),.1977.I.C.J..7.(1997).
 choose to comply with one treaty at the expense of another. Second, a treaty should be
applied in a reasonable way and in such a manner that their purpose can be realized:44

ROR by harvesting sargassum from the sargasso sea have violated its obligation undre
CBD45 and customary international law. Sargassum prevents the carbon dioxide level of
the marine ecosystem from rising. Harvesting sargassum on one hand fulfill ROR’s duty of
NDC commitments however causes failure of UNFCCC itself.

44 Ibid.
45 Art. 22, CBD