7 comments

1. Appendix B
   Excerpts from the 30 March 1992 Malachi Gap Treaty between Amalea and Ritania

   Article 12
   Delineation of jurisdiction. In the area defined by the list of geographic coordinate points set
   out in the Exhibit to this Treaty (hereafter referred to as “the Malachi Gap”):

   (a) the First Party [Amalea] may explore, exploit, and protect the natural resources of the
   waters superjacent to the seabed;

   (b) the Second Party [Ritania] may explore, exploit, and protect the natural resources of
   the seabed and subsoil;

   (c) neither Party shall exercise its rights hereunder in a manner which unduly inhibits the
   exercise of the rights of the other Party and nothing in this Treaty shall be interpreted
   to render the Malachi Gap or any portion thereof the sovereign territory of either
   Party; and

   (d) the Parties shall cooperate with each other in relation to the exercise of their
   respective rights giving due regard to each Party’s unique interests in the Malachi
   Gap, including, but not limited to, in the case of Amalea the protection of fisheries,
   and in the case of Ritania its desire to develop resources lying beneath the water.

   Reply

2. Here is the text from my paper.

   Environmental law is a concept of international law that is growing in importance everyday. Unlike other areas of law where legal policies can be contained within a nations boarders and have little to no effect on neighboring countries, environmental law is built upon shared resources and policies that affect not only a nation’s neighbors, but the entire planet as whole. In a world with growing concern for environmental dangers such as global warming, reduction of forests, continual release of hazardous chemicals into the air and oceans, depletion of natural resources, water shortages, desertification and others, the need for cooperation and regulation has become a greater topic of discussion.

   As defined by the Training Manual on International Environmental Law, international environmental law is law that is developed between sovereign states to develop standards at the international level and provide obligations for states including regulation their behavior in international relations in environmental matters (p.15 Kurukulasuriya). According to the United Nations Conference on the Human Environment, environmental law is defined as “a body of law, which is a system of complex and interlocking statutes, common law, treaties, conventions, regulations and policies which seek to protect the natural environment which may be affected, impacted or endangered by human activities.”

   There are two views on how to regulate activities that impact the environment. On is an economist view that weighs the benefits to an action while maintaining a balance to determents to the environment. The other view is an ecologist view that any detriment to the environment should be banned regardless of the economic benefit. (p. 27 Firestone et al). In the Trail Smelter Case between Canada and the U.S., the tribunal said, “no State has the right to use of permit the use of its territory in such as matter as to cause injury by fumes or to the territory of another or the properties or persons therein…” This decision determined that “a nation’s sovereignty over activities in its territory is therefore limited by its responsibility to not cause damage outside of its territory” (p. 318 Firestone et al).

   One of the first transnational efforts in creating international environmental law came with the Stockholm Conference and Declaration in 1972. This conference structured 26 principles as part of the Declaration of the UNEP. Serving as a subsidiary organ of the United Nations with a General Council of 58 states, the UNEP is the primary authority for international environmental law and policy making. Interestingly, the UNEP has shared a similar birth as that of the Universal Declaration of Human Rights. More importantly, the first principle states that all human beings have a “fundamental right to freedom, equality and adequate conditions of life, in a environment of a quality that permits a life of dignity and well-being,” thus creating the foundation for environmental law as a necessity to human rights of individuals.

   Another important principle is that of 21, which states that countries have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other State of areas beyond the limits of national jurisdiction” (p. 318 Von Glahn, Taulbee). The remaining principles focus on cooperation between states and creating recommendations and suggestions for states to sign into their own laws.

   One persistent item of debate in the international community is how to deal with LDCs. Due to their circumstances, requiring they follow the same guidelines, as DCs would potentially prevent the country from growing. With a lack of financial resources and technology, creating environmentally safe solutions to solve the immediate problems of food shortages, clean water sanitation, lack of electricity and poverty, become even more burdensome. The result has been to divide responsibility between agreeing states in an equitable fashion rather than an equal one; though this creates a greater burden on DCs who face their own issues in creating sustainable development.

   The debate continues as to the listed principles above and whether these can be considered new customary rules of international law. What is clear is that the UN, as seen in the 1992 Earth Summit conference, is that the theme is cooperation, states duty to consult with other states and to implement domestic laws.

   Although much progress has been made in environmental law there are still problems that have not been addressed. For instance, much of the work by the UNEP has been in the form of “soft laws” and recommendations rather than “hard law”. As a result several countries continue practices that harm the planet without fear of penalty. For example, Russia along with other states, abstained from a 1993 agreement to a permanent prohibition on radioactive waste dumping at sea. The same year Russia dumped 237,000 gallons of nuclear wastes into the ocean just 300 miles north of Japan (who had signed the prohibition agreement). The resulting problem is the same scenario other aspects of international law where the sovereignty of nations is pinned up against what is best for mankind. When solutions to growing environmental dangers are met only with nonbinding agreements and voluntary treaties between only parts of the international community the problems that affect us all are only being dealt with by only some of the world. This reflects the common problem of lack of cooperation’s, valuing short-term gains above long-term gains, and the inability to regulate states in a system of anarchy.

   Reply

3. Some exerts from the case and comments. More to come.

   Ritania’s conduct with respect to the Excelsior Island project complied in all respects with its obligations under international law and the terms of the Malachi Gap Treaty, and Ritania has no obligation to compensate Amalea for any loss or damage allegedly caused by the 2009 landslide.
   (our position will argue that we followed what was listed in the treaty, listing international laws that we also complied with, explain the illegitimacy of Amalea’s environmental policies created outside of what is written in the treaty, remove credibility from the assessments of damage, use the court’s decision to support our position, and explain why the EIA did not need to be redone)

   Amalea was among the first nations in the world to develop and implement sustainable fishing practices. In 1986, its legislature enacted the Coastal Fisheries Protection Act, which stated that it applied, inter alia, to the EEZ. The Act established a licensing scheme for all fishing activities, granting authority to the Amalean Environmental Protection Agency to regulate any activities that posed risks to fish stocks. (Where is it written that the CFPA has authority over Ritania’s activities?)

   Neither the Treaty nor any of its travaux préparatoires (preparatory works) makes any specific reference to military activity in the area or prescribes or proscribes any specific commercial or environmental activities. (Ritania had the right to dredge the seabed)

   The Treaty was “to balance, and insofar as possible to promote, the interests of the States Parties in respect of exploration, exploitation, and protection of this maritime area of great importance to them both.” (Developing natural resources has inherent risks involved. Ritania mitigated these risks by complying with the agreement to conduct environmental assessments.)

   Later in 1993, Amalea amended its Coastal Fisheries Protection Act: (a) clarifying that, within the Strait of Malachi, the law applied to “waters within Amalea’s uncontested exclusive economic zone and waters within the Malachi Gap area over which Amalea has jurisdiction, as set out in the Malachi Gap Treaty of 1992,” and (b) requiring environmental impact assessments “for all activities undertaken within the Strait of Malachi which could adversely affect Amalea’s sovereign rights under international law.” (How is Ritania bound to this law? Did we ever agree to this?)

   The EIA did not address the potential impacts of the dredging program on the waters of the Malachi Gap, or on fish species living there. ( We will need to find something that defines what a sufficient EIA includes)

   To the extent that any activities relating to the construction of Excelsior Island will take place within the Malachi Gap, Ritania will take appropriate measures to ensure that such activities are carried out in full compliance with Ritanian law, as well as with Ritania’s obligations under the Malachi Gap Treaty and any applicable norms of international law. (We will have to argue that “appropriate measures” were taken in the form of the EIA, that we were in full compliance with Ritania law, and will need to search for any applicable norms of international law that could work in our favor)

   Ritania maintained that its regulatory processes complied with international law. (finding documentation for this will be key)

   “the circumstances, as they now present themselves to the Court, are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. The rejection of this request shall not prevent Applicant from making a fresh request based on new facts at a later date.”

   By February 2012, ILSA declared the Dorian wrasse to be an endangered species, and recommended that commercial fishing be suspended indefinitely until its population was regenerated. (any thoughts on this one? this could hurt us.)

   In February 2013, Amalea’s Ministry of Fisheries published a report concluding that projected commercial exploitation of the Dorian wrasse would have amounted to no less than USD 250 million annually over the next five years. Being unable to fish the Dorian wrasse for the foreseeable future, Amalea demanded reparations from Ritania for the loss of this revenue. (Amalea’s Ministry of Fisheries is not a neutral party, they may be the best group to estimate what was lost, however; due to proximity to the case, their should have been more involvement from a neutral party )

   Some things to check out:
   Vienna Convention on the Law of Treaties
   International Maritime Organization

   Reply

4. I added additional detail above for the Ritania response to Amalea’s requests. It is important to note that we are only responding to Amalea’s requests and are not responsible to respond to other conceivable arguments or to make a judgement conclusion.

   Amalea’s request to the ICJ with respect to the landslide are found in paragraph 53 of the compromis.

   a – The development of Excelsior Island violated international law.

   In accordance with paragraph 54 of the compromis, we need to support:

   a – assertion 1: Ritania’s conduct with respect to the Excelsior Island project complied in all respects with its obligations under international law and the Malachi Gap Treaty
   a – assertion 2: Ritania has no obligation to compensate Amalea for any loss of damage allegedly caused by the 2009 landslide.

   Reply

5. Additionally, it is important to note that the Dorian Wrasse does not comprise 100% of Amalea’s fishing product or industry.

   Reply

6. http://www.unece.org/env/eia/about/eia_text.html#appendix1

   LIST OF ACTIVITIES

   1. Crude oil refineries (excluding undertakings manufacturing only lubricants from crude oil) and installations for the gasification and liquefaction of 500 metric tons or more of coal or bituminous shale per day.

   2. (a) Thermal power stations and other combustion installations with a heat output of 300 megawatts or more, and
   (b) Nuclear power stations and other nuclear reactors, including the dismantling or decommissioning of such power stations or reactors 1/ (except research installations for the production and conversion of fissionable and fertile materials, whose maximum power does not exceed 1 kilowatt continuous thermal load).

   3. (a) Installations for the reprocessing of irradiated nuclear fuel;
   (b) Installations designed:
   – For the production or enrichment of nuclear fuel;
   – For the processing of irradiated nuclear fuel or high-level radioactive waste;
   – For the final disposal of irradiated nuclear fuel;
   – Solely for the final disposal of radioactive waste; or
   – Solely for the storage (planned for more than 10 years) of irradiated nuclear fuels or radioactive waste in a different site than the production site.

   4. Major installations for the initial smelting of cast iron and steel and for the production of non-ferrous metals.

   5. Installations for the extraction of asbestos and for the processing and transformation of asbestos and products containing asbestos: for asbestos-cement products, with an annual production of more than 20,000 metric tons finished product; for friction material, with an annual production of more than 50 metric tons finished product; and for other asbestos utilization of more than 200 metric tons per year.

   6. Integrated chemical installations.

   7. (a) Construction of motorways, express roads 2/ and lines for long-distance railway traffic and of airports 3/ with a basic runway length of 2,100 metres or more;
   (b) Construction of a new road of four or more lanes, or realignment and/or widening of an existing road of two lanes or less so as to provide four or more lanes, where such new road, or realigned and/or widened section of road, would be 10 km or more in a continuous length.

   8. Large-diameter pipelines for the transport of oil, gas or chemicals.

   9. Trading ports and also inland waterways and ports for inland-waterway traffic which permit the passage of vessels of over 1,350 metric tons.

   10. (a) Waste-disposal installations for the incineration, chemical treatment or landfill of toxic and dangerous wastes;
   (b) Waste-disposal installations for the incineration or chemical treatment of non-hazardous waste with a capacity exceeding 100 metric tons per day.

   11. Large dams and reservoirs.

   12. Groundwater abstraction activities or artificial groundwater recharge schemes where the annual volume of water to be abstracted or recharged amounts to 10 million cubic metres or more.

   13. Pulp, paper and board manufacturing of 200 air-dried metric tons or more per day.

   14. Major quarries, mining, on-site extraction and processing of metal ores or coal.

   15. Offshore hydrocarbon production. Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 metric tons/day in the case of petroleum and 500 000 cubic metres/day in the case of gas.

   16. Major storage facilities for petroleum, petrochemical and chemical products.

   17. Deforestation of large areas.

   18. (a) Works for the transfer of water resources between river basins where this transfer aims at preventing possible shortages of water and where the amount of water transferred exceeds 100 million cubic metres/year; and
   (b) In all other cases, works for the transfer of water resources between river basins where the multi-annual average flow of the basin of abstraction exceeds 2 000 million cubic metres/year and where the amount of water transferred exceeds 5 per cent of this flow.
   In both cases transfers of piped drinking water are excluded.

   19. Waste-water treatment plants with a capacity exceeding 150 000 population equivalent.

   20. Installations for the intensive rearing of poultry or pigs with more than:
   – 85 000 places for broilers;
   – 60 000 places for hens;
   – 3 000 places for production pigs (over 30 kg); or
   – 900 places for sows.

   21. Construction of overhead electrical power lines with a voltage of 220 kV or more and a length of more than 15 km.

   22. Major installations for the harnessing of wind power for energy production (wind farms).

   ____________________

   1/ For the purposes of this Convention, nuclear power stations and other nuclear reactors cease to be such an installation when all nuclear fuel and other radioactively contaminated elements have been removed permanently from the installation site.

   2/ For the purposes of this Convention:

   – “Motorway” means a road specially designed and built for motor traffic, which does not serve properties bordering on it, and which:

   (a) Is provided, except at special points or temporarily, with separate carriageways for the two directions of traffic, separated from each other by a dividing strip not intended for traffic or, exceptionally, by other means;

   (b) Does not cross at level with any road, railway or tramway track, or footpath; and

   (c) Is specially signposted as a motorway.

   – “Express road” means a road reserved for motor traffic accessible only from interchanges or controlled junctions and on which, in particular, stopping and parking are prohibited on the running carriageway(s).

   3/ For the purposes of this Convention, “airport” means an airport which complies with the definition in the 1944 Chicago Convention setting up the International Civil Aviation Organization (annex 14).

   Reply

7. Liability for International Environmental Harm

   Reply