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-dacula
Edgar Cabanes
Counsels
Team Book II
Janessa Fe Alcarez
Rachel Giango Alburo
Roseraine Datu-dacula
Edgar Cabanes
Angel Bert Gemparo

TABLE OF CONTENTS
INDEX OF AUTHORITIES..ii
SUMMARY OF FACTS1
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 OBLIGATIONS8
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
ENVIRONMENT11
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 Sea6
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, 19926
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 shortbeaked 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 RECOs 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 Rissos shoreline. The cause of death was inconclusive. Araguaia alleged

that RECOs 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 RECOs 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.
Araguaias 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, 1982
2 UNCLOS, Article 194, United Nations Charter as amended June 26, 1945
3 Vienna Convention on the Law of Treaties Article 11, May 1969
4 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 Araguaias
ecotourism industry. This shows that RECO disregards its duties under the UNCLOS
and CBD.
RECOs 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

7 Espoo Convention articles 3,5,6

8 CBD article 14
9 CBD article 3; Espoo Convention article 2; UNCLOS article 192

whole.10 Risso has failed to meet such requirements. Therefore it cannot invoke the
necessity doctrine.
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.

10 Dharsiwa, Article 25 Section 1

11 Article 54(2) Protocol I
12 Article 51, Additional Protocol

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

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
13 Compromis par 24
14 Article 54, Additional Protocol I
15 Article 15, Lieber Code
16 ICRC Commentaries

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.
3. Criminal Intent must exist. In cases like this, the mere possibility of risk that a
crime may occur as a result of the persons 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
17 Article 15 Lieber Code
18 Bemba 410,411

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
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.

19 Additional Protocol Article 35 (3)

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