1
Team No. 2175 IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE THE HAGUE, NETHERLANDS
QUESTIONS RELATING TO
PROTECTION OF BATS AND INTERNATIONAL TRADE MEASURES
FEDERAL STATES OF ALDUCRA APPLICANT
V.
REPUBLIC OF RUNBETI RESPONDENT
_____________________________________________________________________________ _ MEMORIAL FOR THE RESPONDENT
23RD ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL
MOOT COURT COMPETITION 2020-2021
2 TABLE OF CONTENTS TABLE OF CONTENTS ... 2 QUESTIONS PRESENTED ... 5 STATEMENT OF JURISDICTION ... 6 INDEX OF AUTHORITIES ... 7 STATEMENT OF FACTS ... 14 SUMMARY OF ARGUMENT ... 15 ARGUMENT ... 16
ISSUE I - RUNBETI DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS WIND FARM PROJECT. ... 16
A. The Wind Farm project is justified under international law ... 16
1. Runbeti has exercised its sovereign right to exploit its natural resources ... 16
2. The Wind Farm project has not caused harm to Alducra ... 18
3. Runbeti acted in accordance with the precautionary principle ... 19
a. The precautionary principle does not apply in the present case ... 19
b. In any case, Runbeti acted in accordance with the precautionary principle ... 21
4. The Wind Farm project is in pursuance of Runbeti’s international commitment towards alternative energy resources to tackle climate change ... 22
B. Alternatively, Runbeti did not violate its conventional obligations with respect to the Wind Farm project ... 23
3
2. Runbeti did not violate the CBD ... 24
a. Runbeti exercised due diligence and cooperated with other States in accordance with Article 3 and 5 of the CBD. ... 24
b. Runbeti has Common but Differentiated responsibility towards the Conservation of Biodiversity under the CBD. ... 25
c. In any case, the concerned CBD provisions use limiting language ... 26
3. Runbeti did not violate CMS ... 26
a. The CMS resolutions invoked by Alducra are not binding ... 26
4. Runbeti did not violate its obligation to cooperate ... 27
ISSUE II. Alducra violated international law with respect to its trade measures for tapagium products. ... 27
A. Alducra’s trade measures violate the National Treatment obligation under ARTA. ... 28
1. The taxation requirement violates Art VIII (2) of ARTA. ... 28
a. Trade measure is inconsistent with VIII (2), first sentence. ... 28
b. Trade measure is inconsistent with VIII (2), second sentence. ... 30
2. Labelling requirements violate VIII(3) of ARTA. ... 33
a. Tapagium products are like. ... 33
b. Labeling requirements affect the sale and distribution of imported tapagium products. ... 33
c. The Labelling requirements provide less favourable treatment to imported tapagium products. ... 34
4
3. Alducra’s intent behind imposing a tax to promote bat-safe farming practice is
immaterial ... 35
B. Trade measures are not justified by the substantive provisions of Article X of the ARTA. 36 1. Trade measures do not comply with article X(a) and (b) because they fail the ‘necessity test’. ... 36
a. There is a lack of nexus between the measures taken and the end-goal sought ... 36
b. The trade measures are unnecessarily trade-restrictive. ... 37
c. Availability of less trade-restrictive alternatives. ... 38
2. Trade measures do not comply with article X(g) ... 38
3. Trade measures do not comply with the chapeau of Article X. ... 39
a. The trade measures constitute “arbitrary and unjustifiable discrimination.” ... 39
b. The measures constitute a “disguised restriction on trade”. ... 41
5
QUESTIONS PRESENTED
I. WHETHER THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW
WITH RESPECT TO ITS WIND FARM PROJECT?
II. WHETHER THE FEDERAL STATE OF ALDUCRA VIOLATED INTERNATIONAL
6
STATEMENT OF JURISDICTION
The Federal States of Alducra (“Alducra”) and the Republic of Runbeti (“Runbeti”) submit the
following dispute to the International Court of Justice. Pursuant to Article 40, paragraph 1 of the
Statute of the International Court of Justice, States may bring cases before the Court by special
agreement. On 24th July 2020, the Parties signed a special agreement and submitted to the
Registrar of the ICJ their differences concerning questions in Annex A, including the
Clarifications, relating to the differences between them Concerning Questions Relating to the
Protection of Bats and International Trade Measures. The Registrar of the Court addressed a
notification to the parties on 31st July, 2020. Therefore, Alducra and Runbeti have accepted the
jurisdiction of the ICJ pursuant to Article 36 (1) of the Statute and request the Court to adjudge the
dispute in accordance with the rules and principles of international law, including any applicable
treaties.
7
INDEX OF AUTHORITIES
JUDICIAL DECISIONS
Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons 1996 I.C.J. 254, (July 8)
... 16, 17
Case C-8/74, Procureur du Roi v Benoit and Gustave Dassonville, 1974 E.C.R. 837 ... 30
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar) and
Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica),
Judgment, 2015 I.C.J. Rep. 662, 709, para 110; 725, 172 (December 16) ... 26
Corfu Channel (U.K. v. Alb.) Merits 1949 I.C.J Rep. 4 (April 9) [hereinafter, “Corfu Chanel
case”] ... 15, 18 Island of Palmas (U.S. v. Neth.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928) ... 15
Kuwait v. American Independent Oil Co., 21 ILM 976 (1982) ... 16 Texaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Libya, 53 ILR 389 (1977), para. 87 ... 16
Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (1938/1941) ... 18, 32
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Merits, Judgment, 2014,
ICJ (31 March), Separate opinion of Judge Greenwood, para.7 ... 22
GATT/WTOPANEL &ABREPORTS
Apellate Body Report, Korea — Alcoholic Beverages, para. 118, WTO Doc WT/DS75/AB/R;
8
Appellate Body Report, Brazil — Retreaded Tyres, para 210, WTO Doc. WT/DS332/AB/R
(adopted Dec. 3 2007) ... 37
Appellate Body Report, Brazil—Export Financing Programme for Aircraft, Para 19,
WT/DS46/AB/R (Aug. 20, 1999) ... 27
Appellate Body Report, Canada — Periodicals, WT/DS31/AB/R (June 30, 1997) ... 27, 29, 31, 33
Appellate Body Report, Chile — Alcoholic Beverages, para. 67, WTO Doc. WT/DS87/AB/R,
WT/DS110/AB/R (adopted Dec. 13, 1999) ... 32
Appellate Body Report, EC — Asbestos, para 95, WT/DS135/AB/R (Mar. 12, 2001) ... 32, 33, 36
Appellate Body Report, Japan – Alcoholic Beverages II, pp. 23, WT/DS8/AB/R ; WT/DS10/AB/R
; WT/DS11/AB/R (Oct. 4, 1996) ... 29, 30, 35
Appellate Body Report, Korea — Various Measures on Beef, para. 137, WTO Doc.
WT/DS161/AB/R; WT/DS169/AB/R (adopted Dec. 11, 2000) ... 34
Appellate Body Report, Philippines — Distilled Spirits, para. 170, WT/DS396/AB/R;
WT/DS403/AB/R (Dec. 21, 2011) ... 28, 29
Appellate Body Report, US — Shrimp, para. 141, WTO Doc. WT/DS58/AB/R (adopted Oct. 12,
1998) ... 38, 39, 40
Appellate Body Report, US — Tuna II (Mexico), WTO Doc. WT/DS381/AB/R (adopted May 16,
2012) ... 34, 40
Appellate Body Report, US—Shrimp (Art 21.5—Malaysia), para 118, WTO Doc.
WT/DS58/AB/RW (adopted Oct. 22, 2001) ... 41
Appellate Body Reports, EC-Measures Prohibiting the Importation and Marketing of Seal
9
GATT Working Party Report, Border Tax Adjustments, L/3464, adopted 2 December 1970,
B.I.S.D. 18S/97, para. 18 ... 28
Panel Report, Argentina – Hides and Leather, para 11.182, WT/DS155/R (adopted Dec. 19, 2000)
... 29
Panel Report, China — Raw Materials, para. 7.551, WT/DS394/R; WT/DS395/R; WT/DS398/R
(July 5, 2011) ... 39
Panel Report, India — Measures Affecting the Automotive Sector, pp. 7.181, WT/DS146/R,
WT/DS175/R (Dec. 21, 2001) ... 33
Panel Report, Japan — Film, pp. 10.380, WTO doc. WT/DS44/R (adopted Mar. 31, 1998) ... 34
Panel Report, Mexico — Taxes on Soft Drinks, para. 8.45, WTO Doc. WT/DS308/R (adopted oct.
7, 2005) ... 29
Panel Report, US—Canadian Tuna, para 4.5, LDS21/R, (Sept. 3, 1991) GATT BISD (39th Supp.),
at 155(1991) ... 38
Report of the Panel, Thailand- Restrictions on Importation of and Internal Taxes on Cigarettes,
para. 75, (DS10/R (Nov. 7, 1990), GATT BISD (37th Supp.), at 200, (1990) ... 37
Report of the Panel, United States - Section 337 of the Tariff Act of 1930, para. 5.11, L/6439 (Nov. 7, 1989), GATT BISD (36S/345) ... 34
INTERNATIONAL LEGAL INSTRUMENTS
Agreement on the Conservation of Populations of European Bats, EUROBATS, Article III Para 1
, December 4, 1991, 1863 U.N.T.S 101 [hereinafter “EUROBATS”] ... 21
Article 3, Convention on Biological Diversity, entered into force Dec. 29, 1993, 1760 U.N.T.S. 79
10
Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015,
T.I.A.S. No. 16-1104, Article 2 [hereinafter Paris Agreement] ... 20
U.N. Conference on Environment and Development, Rio Declaration on Environment and
Development, U.N. Doc. A/CONF.151/26/Rev.1, Principle 2 (Aug., 12, 1992) [hereinafter “Rio Declaration”] ... 15, 16, 19, 39 U.N. Conference on the Human Environment, Declaration of the United Nations Conference on
the Human Environment, U.N. Doc. A/CONF.48/14/Rev1, Principle 21 (June 16, 1972) [hereinafter, “Stockholm Declaration”] ... 15
Vienna Convention on the Law of Treaties, (Jan. 27, 1980) 1155 U.N.T.S. 331, Art. 31(1).
[hereinafter, “VCLT”] ... 24
OTHER LEGAL AUTHORITIES
CMS Conference of the Parties, UNEP/CMS/Resolution 11.27 (Rev.COP13), “Renewable Energy
and Migratory Species”, 13th Meeting of the COP, February 2020 ... 25
CMS Conference of the Parties, UNEP/CMS/Resolution 12.21, “Climate Change and Migratory
Species”, 12th Meeting of the COP, October 2017 ... 25
EUROBATS Meeting of the Parties, Resolution 8.4, “Wind Turbines and Bat Populations,” 8th
Session of the Meeting of the Parties, October 2018, [hereinafter “EUROBATS Resolution
8.4”], clause 3 ... 21 GATT Secretariat, Guide to GATT Law and Practice 519 (6th ed. 1994) ... 35
IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation
and Natural Resource Management, IUCN 1 (2007) ... 17
11
Lehnert, Linn & Kramer-Schadt, Stephanie & Schoenborn, Sophia & Lindecke, Oliver &
Niermann, et. al. Wind Farm Facilities in Germany Kill Noctule Bats from Near and Far <9(8):
e103106. 10.15488/278 (2014)>. ... 16
Renewable Energy Technology Deployment and Migratory Species: an Overview, UNEP/CMS/COP11/Inf.26 (October 24, 2014) ... 18
BOOKS &DIGESTS Black’s Law Dictionary (7th ed. 1999) ... 24
Cass .R. Sunstein, The Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press) (2004) ... 19
ELENA BLANCO, JONA RAZZAQUE, GLOBALIZATION AND NATURAL RESOURCES LAW, 417 (2011) ... 23, 37 JOHANNES ANTONIUS, MARIA KLABBERS, AN INTRODUCTION TO INTERNATONAL INSTITUTIONAL LAW (2nd edition), 187 ... 21
Nico Schrijver, Sovereignty Over Natural Resources, Balancing Rights and Duties, Cambridge Univ. Press, Pp. xxix, 452, 1997 ... 14
P. Sands, Principles of International Environmental Law, 2nd Edn, pg 236 ... 16
PATRICIA BIRNIE, International Law and the Environment (3rd ed.) 153 (2009) ... 17
RENN, ENCYCLOPEDIA OF ECOLOGY 2909 (2008) ... 18
Richard Barnes, Property Rights and Natural resources 121 (2009) ... 14
The Oxford Handbook of International Environmental Law (Bodansky, Daniel; Brunnée, Jutta; Hey, Ellen 2008), Main Text, Part V: Key Concepts ... 20
12
XUE HANQUIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (Cambridge
Univ. Press) 4 (2003) ... 16
ESSAYS.ARTICLES AND JOURNALS
Alison Rosser, Approaches to Sustainable Use: CITES Non-Detriment Findings and C.B.D.
Sustainable Use Principles, 10 J.OF.INT’L. WILDLIFE. L. AND POL’Y 200, 210 (2007) ... 21 Curtis Moore, Existing Authorities in the United States for Responding to Global Warming, 40
ELR 10185 (2010) ... 18
Duncan French, Developing States and International Environmental Law: The Importance of
Differentiated Responsibilities, 49 INT'L. & COMP. L. Q. 35 (2000) ... 22 F.B. Cross, ‘Paradoxical Perils of the Precautionary Principle’ 53 Wash. & Lee L. Rev. 851 (1996)
... 18
Graham Mayeda, Ethical and Legal Approaches to Sustainable Development in Context of
International Environmental Law, 29 COLO. J. INT'L. ENVTL. L. & POL'Y. 120, 135 (2004) ... 22
John H. Jackson, National Treatment Obligations and Non-Tariff Barriers, 10 MICH. J. INT'L L.
207 (1989) ... 27
Nico Schrijver, Natural Resources and Permanent Sovereignty, 7 E.P.I.L 535 (2012) ... 13
Sonia Boutillon, The Precautionary Principle: Development of an International Standard, 23
Michigan Journal of International Law 429 (2009) ... 18
U.N.DOCUMENTS
13
Report of the International Law Commission on the Work of the Fifty-Third Session, 154, U.N. Doc. A/56/10, (2001) ... 21
UN GA Resolution on Permanent Sovereignty over natural resources, GA Res. 1803 (XVII), UN
GAOR, 17th Session, Supp. No 17 at 15 ... 14
UN GA Resolution on Right to Exploit Freely Natural Wealth and Natural Resources, GA Res.
14
STATEMENT OF FACTS
The Federal States of Alducra and the Republic of Runbeti signed the Special Agreement for the
submission to the International Court of Justice of Differences between them Concerning
Questions relating to the Protection of Bats and International Trade Measures. Annexure A to the
Special Agreement contains the Agreed Statement of Facts [hereinafter, “Compromis”], in
accordance to which the court may decide this matter, as agreed by the parties at Article II (2) of
15
SUMMARY OF ARGUMENT
I. The Wind Farm project is justified, as it is in exercise of Runbeti’s right to exploit natural resources. Runbeti has exercised its right in pursuance of its commitments under UNFCCC.
Further, the project has not caused harm to Alducra and Runbeti has acted according to the
precautionary principle. Runbeti has not violated its conventional obligations as it
exercised due diligence, shared information and cooperated with Alducra, and acted
according to EUROBATS. Further, the concerned CMS and EUROBATS resolutions are
not binding.
II. Alducra has violated international law by imposing trade restrictions on imported tapagium products. Alducra violates the national treatment obligation under Article VIII (2) and (3)
of ARTA. Further, the trade measures are not justified under Article X of ARTA because
they measure are not necessary, are unjustifiably discriminatory and restrict trade. Lastly,
measures do not relate to the conservation of exhaustible natural resources as Alducra does
16
ARGUMENT
ISSUE I - RUNBETI DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS WIND FARM PROJECT.
A. The Wind Farm project is justified under international law
1. Runbeti has exercised its sovereign right to exploit its natural resources
A State has the sovereign right to govern and implement policies in its own way in the territory of
that State.1 States may exercise this sovereign right to exploit its natural resources in any way it
deems fit.2 The sovereignty over natural resources includes the right to possess, use and manage
its own resources.3 Runbeti also has exercised its right to exploit its natural resources by approving
the Wind Farm project in pursuance of its commitments under the UNFCCC and the Paris
Agreement.4
1 Charter of the United Nations, Oct. 24, 1945 1 U.N.T.S. 16, Article 2 (1); Corfu Channel (U.K. v. Alb.) Merits 1949 I.C.J Rep. 4 (April 9) [hereinafter, “Corfu Chanel case”]; Island of Palmas (U.S. v. Neth.), 2 R.I.A.A. 829 (Perm. Ct. Arb. 1928).
2 Nico Schrijver, Sovereignty Over Natural Resources, Balancing Rights and Duties, Cambridge Univ. Press, Pp. xxix, 452, 1997.
3 Richard Barnes, Property Rights and Natural resources 121 (2009); Nico Schrijver, Natural Resources and Permanent Sovereignty, 7 E.P.I.L 535 (2012)
17
Principle 21 of the Stockholm Declaration and Principle 2 of the Rio Declaration, to which both
Runbeti and Alducra are parties to,5 posit that States have the right to exploit the resources in its
territory in pursuance of its own environment policies.6 The Principle 21 is verbatim reflected in
the 1992 Biological Diversity convention.7 The principle is enumerated in numerous resolutions
of the UN General Assembly,8 thus reflecting strong opinio juris. The customary nature of the
principle has been affirmed by the ICJ9 and international tribunals.10 The principle allows, within
their national limits, States to conduct and authorise such activities as they choose, including
5 Para 10, Compromis
6 U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1, Principle 2 (Aug., 12, 1992) [hereinafter “Rio Declaration”]; U.N. Conference on the Human Environment, Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/CONF.48/14/Rev1, Principle 21 (June 16, 1972) [hereinafter, “Stockholm Declaration”]
7 Article 3, Convention on Biological Diversity, entered into force Dec. 29, 1993, 1760 U.N.T.S. 79 [hereinafter,
“CBD”]
8 UN GA Resolution on Permanent Sovereignty over natural resources, GA Res. 1803 (XVII), UN GAOR, 17th Session, Supp. No 17 at 15; UN GA Resolution on Right to Exploit Freely Natural Wealth and Natural Resources, GA Res. 626 (VII) (1952). UN Doc. A/PV.411 (VII).
9 Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons 1996 I.C.J. 254, (July 8)
10 Texaco Overseas Petroleum Co. and California Asiatic Oil Co. v. Libya, 53 ILR 389 (1977), para. 87; Kuwait v.
18
activities which may have adverse effect on their own environment.11 Thus, both parties are
entitled to sovereign rights over their natural resources.
2. The Wind Farm project has not caused harm to Alducra
States must keep activities within their jurisdiction or control from causing damage to the
environment in other States or outside the boundaries of national jurisdiction.12 The duty is a
recognized principle of customary international law.13 In the Corfu Channel case, the ICJ
articulated the general principle that every State is obliged not to knowingly allow its territory to
be used to commit acts against the rights of any other State. This duty is breached if there is a
physical connection between the activity concerned and the damage caused, human causation,
harm that meets a level of gravity that demands legal action, and transboundary movement of
injurious effects.14
There is no evidence to show that the harm of the wind farm project directly harmed Alducra.
Research regarding the impact of German wind energy projects on the common noctule showed
that 28% of the noctules were of distant origin and thus protected under CMS viz. EUROBATS.15
11 P. Sands, Principles of International Environmental Law, 2nd Edn, pg 236.
12 Rio Declaration, Principle 2
13 Supra 9, Para 29.
14 XUE HANQUIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW (Cambridge Univ. Press) 4 (2003).
15 Lehnert, Linn & Kramer-Schadt, Stephanie & Schoenborn, Sophia & Lindecke, Oliver & Niermann, et. al. Wind Farm Facilities in Germany Kill Noctule Bats from Near and Far <9(8): e103106. 10.15488/278 (2014)>.
19
But there is no evidence that the royal noctules impacted by the wind farm project were of distant
origin and not local in nature. Further, nothing here that indicates a causal link between the death
of royal noctules and the wind farm project.16 Therefore, the harm does not necessarily have a
causal link to the project, neither meets the required level of gravity nor evidences transboundary
movement of any injurious effects.
3. Runbeti acted in accordance with the precautionary principle
a. The precautionary principle does not apply in the present case
The precautionary principle requires: (1) a threat of environmental damage; (2) of serious or
irreversible character; and (3) scientific certainty.17 In the present matter, all elements were absent.
i. There was no foreseeable harm
Pursuant to the Trail Smelter Arbitration18 and the Corfu Channel Case19, the obligation under the
precautionary principle arises only when there is actual and serious harm which is likely to recur
or when there is a known risk to other States. A State cannot thus be required to regulate activities
of which it is not and could not reasonably have been aware to be potentially harmful.20 Here there
16 Para 21, Compromis
17 IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, IUCN 1 (2007)
18 Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A. 1905, 1965 (1938/1941)
19 Corfu Chanel case, supra 1.
20
is no foreseeable harm prior to the inception of the wind farm project. Runbeti conducted an
extensive EIA with no indications of any foreseeable harm.
ii. Even assuming there was foreseeable damage, the threat was not of serious or irreversible character.
The royal noctule is listed as vulnerable on the IUCN Red List. According to the guidelines for
appropriate uses of IUCN Red List data, species listed under the category ‘Vulnerable’ do not pose
a high risk of extinction in the wild.21 The royal noctule is also listed in CMS Appendix II which
does not include species in danger of extinction. The threat to the royal noctule was thus neither
of a serious nature nor irreversible in character.
iii. There was scientific uncertainty
Precautionary measures are necessary only when there is foreseeable harm, which is scientifically
certain.22 Runbeti conducted an extensive EIA over a period of six months. Further, Alducra also
conveyed that the harm was not foreseeable.23 In general, the short term and long term impact of
wind energy developments on migratory species is unknown as few scientific studies are available
on them.24 Thus, there was a clear scientific uncertainty on the impact of the wind farm project on
21 IUCN, Guidelines for appropriate uses of IUCN Red List Data (2016)
22 RENN, ENCYCLOPEDIA OF ECOLOGY 2909 (2008).
23 Para 22, Compromis.
24 Renewable Energy Technology Deployment and Migratory Species: an Overview, UNEP/CMS/COP11/Inf.26 (October 24, 2014)
21
the royal noctules. Owing to the absence of any scientific certainty, Runbeti approved the wind
farm project.
In any case, the elements of the precautionary principle are cumulative, and the absence of at least
one will prevent its application.25Thus, the precautionary principle does not apply.
b. In any case, Runbeti acted in accordance with the precautionary principle
The precautionary principle provides that, “where there are threats of serious or irreversible
damage, lack of scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.”26 Climate change threatens serious and
irreversible damage.27 Wind energy's ability to generate electricity without many of the
environmental impacts associated with other energy sources (e.g., air pollution, water pollution,
mercury emissions, climate change) could benefit birds, bats, and many other plant and animal
species. Measures to reduce one uncertain irreversible catastrophic might induce another.28
Shutting down the wind farm project to save bats will induce global warming which in turn will
affect biological diversity. The Precautionary principle does not call for precautionary regulation
of uncertain irreversible risks if such regulation would itself yield the very dangers the
25 Sonia Boutillon, The Precautionary Principle: Development of an International Standard, 23 Michigan Journal of International Law 429 (2009).
26 Rio Declaration, Principle 15.
27 Curtis Moore, Existing Authorities in the United States for Responding to Global Warming, 40 ELR 10185 (2010).
28 F.B. Cross, ‘Paradoxical Perils of the Precautionary Principle’ 53 Wash. & Lee L. Rev. 851 (1996); Cass .R. Sunstein, The Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press) (2004).
22
precautionary principle seeks to avoid29. Thus, by taking cost-effective, precautionary measures to
combat climate change, Runbeti is acting in accordance with the precautionary principle.
4. The Wind Farm project is in pursuance of Runbeti’s international commitment towards
alternative energy resources to tackle climate change
The Paris Agreement “aims to strengthen the global response to the threat of climate change” by
acknowledging the “differentiated responsibilities and respective capabilities” of the signatories.30
Each party must prepare, communicate, and maintain successive Nationally Determined
Contributions (NDC) that it intends to achieve. Each party’s NDC reflects its progression and
ambitions to mitigate global climate change.31 Runbeti’s alternative resource project was a part of
its NDC.32 Wind energy is a viable alternative energy resource and thus in pursuance of its Article
4 obligation,33 Runbeti incentivised private entities to implement renewable energy projects. Thus,
Runbeti’s approval of the Wind Farm project was in pursuance to meeting it’s NDC commitments
under the Paris Agreement.
29 The Oxford Handbook of International Environmental Law (Bodansky, Daniel; Brunnée, Jutta; Hey, Ellen 2008), Main Text, Part V: Key Concepts.
30 Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 12, 2015, T.I.A.S. No. 16-1104, Article 2 [hereinafter Paris Agreement]
31 Article 4, para 3, Paris Agreement
32 Para 16, Compromis
23
B. Alternatively, Runbeti did not violate its conventional obligations with respect to the Wind Farm project
1. Runbeti acted in accordance with EUROBATS
EUROBATS prohibits deliberate killings of bats and except under permit from its competent
authority.34 Further, the convention calls for identifying and protecting sites which are bat habitat
from disturbance with the exception of socio-economic considerations.35 The Government of
Runbeti granted subsidy and approved the project by PECO as it was pertinent for sustainable
development by pursuing alternative energy projects. Thus, Runbeti did not violate the
EUROBATS convention as the wind farm project was in pursuance of its socio-economic
development.
Further, although resolutions of meeting of parties are binding, the wordings of the operative
clauses in the Resolution 8.4 are recommendatory in nature and calls for impact assessment and
regular monitoring of concerned sites.36 Such wording is pertinent to decide whether the specific
resolution is binding in nature.37 Thus, the resolution is not binding. In any event, Runbeti did
34 Agreement on the Conservation of Populations of European Bats, EUROBATS, Article III Para 1 , December 4, 1991, 1863 U.N.T.S 101 [hereinafter “EUROBATS”]
35 Id, para 3
36 EUROBATS Meeting of the Parties, Resolution 8.4, “Wind Turbines and Bat Populations,” 8th Session of the Meeting of the Parties, October 2018, [hereinafter “EUROBATS Resolution 8.4”], clause 3
37 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Merits, Judgment, 2014, ICJ (31 March), Separate opinion of Judge Greenwood, para.7; JOHANNES ANTONIUS, MARIA KLABBERS, AN INTRODUCTION TO INTERNATONAL INSTITUTIONAL LAW (2nd edition), 187
24
carry out comprehensive EIAs and allowed pre-construction and post-construction assessment of
the Wind Farm project. Thus, Runbeti complied with the EUROBATS Resolution 8.4.
2. Runbeti did not violate the CBD
The scope of the CBD extends to the conservation of biodiversity and the sustainable use of its
components.38 Redox’ exercise of due diligence in good faith, even with its differentiated
obligations under the convention and the limiting language, is in conformity with the object and
purpose of CBD.
a. Runbeti exercised due diligence and cooperated with other States in accordance
with Article 3 and 5 of the CBD.
Under Article 3 of the CBD, States have the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to areas beyond the limits of national jurisdiction. To
this end, Article 5 of the CBD mandates State-parties to cooperate, as far as possible and
appropriate, to prevent damage to other State’s environment. Article 14(1)(a) of CBD requires
State-parties to conduct EIA when its proposed project is likely to have significant adverse effects
on biodiversity, with a view of avoiding or minimizing such negative effects. Due diligence refers
to reasonable efforts to take appropriate and timely measures in order to address a contemplated
procedure.39
38 CBD, art.1; Alison Rosser, Approaches to Sustainable Use: CITES Non-Detriment Findings and C.B.D. Sustainable
Use Principles, 10 J.OF.INT’L. WILDLIFE. L. AND POL’Y 200, 210 (2007)
39 Report of the International Law Commission on the Work of the Fifty-Third Session, 154, U.N. Doc. A/56/10, (2001).
25
Contrary to Alducra’s allegations, Runbeti did not violate its CBD obligations because Runbeti
exhausted all means and observed due diligence throughout the second half of 2015 for its first
phase of the project to prevent harm to Alducra. Runbeti also conducted an extensive EIA as per
Article 14(1)(a) of the CBD. This EIA was conducted as early as the planning phase and before
implementing the project. Only after conducting and reviewing the EIA, the Government of
Runbeti approved the wind farm project and issued necessary permits for the first phase. Thu,
Runbeti exercised the due diligence required under CBD.
b. Runbeti has Common but Differentiated responsibility towards the
Conservation of Biodiversity under the CBD.
Countries at different stages of development have different capacities, and consequently, different
levels and kinds of responsibility for dealing with international environmental issues40. The CBD
provides qualified commitments, and their implementation depends on particular national
circumstances and priorities of individual parties and resources available to them41. Thus, there is
a commonality in the responsibility to conserve biodiversity but a differential obligation towards
its implementation. Therefore, the responsibility that Runbeti owes towards the conservation of its
own biodiversity is contingent upon the economic condition, developmental priorities, capabilities,
availability of resources and other requirements of its population.
40 Graham Mayeda, Ethical and Legal Approaches to Sustainable Development in Context of International
Environmental Law, 29 COLO. J. INT'L. ENVTL. L. & POL'Y. 120, 135 (2004); Duncan French, Developing States and International Environmental Law: The Importance of Differentiated Responsibilities, 49 INT'L. & COMP. L. Q.
35 (2000).
26
c. In any case, the concerned CBD provisions use limiting language
Article 5 and 8 of the CBD use limiting language such as, “as far as possible and as appropriate”.
Thus, Runbeti would not have violated CBD if it complied with the obligation to cooperate under
Article 5 and the obligation to minimize damage to biodiversity, as far as possible and as
appropriate. Further, the VCLT mandates that a treaty shall be interpreted in good faith, giving the
ordinary meaning to the terms of the treaty in their context and in the light of its object and
purpose.42 In this case, it is clear that Runbeti tried to cooperate and minimize harms as far as
possible by conducting an EIA and allowing Chiroptera Crusaders to conduct post-construction
monitoring. Further, Runbeti’s international commitments under UNFCCC is another limitation
which limits the extent of obligation it could fulfil.
3. Runbeti did not violate CMS
a. The CMS resolutions invoked by Alducra are not binding
Resolutions are non-binding instruments. A resolution is a ‘formal expression of an opinion,
intention, or decision by an official body or assembly.43 Further, the CMS resolutions specifically
use use non-binding language in the invoked resolutions with operative clauses beginning with
42 Vienna Convention on the Law of Treaties, (Jan. 27, 1980) 1155 U.N.T.S. 331, Art. 31(1). [hereinafter, “VCLT”]
27
terms such as, “urges”,44 “encourages”,45 and “requests”46 Only the resolution 7.5 calls on parties
to identify key areas and to exercise precautions which Runbeti has fulfilled by its EIA and
post-construction monitoring. Thus, the CMS resolutions invoked by Alducra are non-binding in nature
and Runbeti has complied with its obligations under CMS.
4. Runbeti did not violate its obligation to cooperate
The ICJ has ruled in the Certain Activities and Construction of a Road cases that Parties are under
no obligation to consult with regard to particular projects they are undertaking.47 But because the
CMS seeks to conserve migratory species, especially species like the Royal Noctule bats whose
conservation status is unfavourable, in the spirit of cooperation, Runbeti shared details of the Wind
Farm project which was being monitored by Chiroptera Crusaders. Thus, Runbeti has cooperated
with Alducra in good faith.
ISSUE II. Alducra violated international law with respect to its trade measures for tapagium products.
44 CMS Conference of the Parties, UNEP/CMS/Resolution 11.27 (Rev.COP13), “Renewable Energy and Migratory Species”, 13th Meeting of the COP, February 2020.
45 CMS Conference of the Parties, UNEP/CMS/Resolution 12.21, “Climate Change and Migratory Species”, 12th Meeting of the COP, October 2017
46 Id.
47 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar) and Construction of a Road in Costa Rica Along the San Juan River (Nicar. v. Costa Rica), Judgment, 2015 I.C.J. Rep. 662, 709, para 110; 725, 172 (December 16)
28
A. Alducra’s trade measures violate the National Treatment obligation under ARTA. 1. The taxation requirement violates Art VIII (2) of ARTA.
a. Trade measure is inconsistent with VIII (2), first sentence.
Alducra’s internal tax is inconsistent with VIII (2), the first sentence because: (1) The imported
and domestic products are like products; and (2) the imported products are taxed in excess of the
domestic products.48
i. Tapagium products are like.
The determination of whether a product is like, requires the determination of the nature and the
extent of a competitive relationship between imported and domestic products.49. The product’s
properties, nature and quality, consumer tastes and habits in a given market, product’s end uses,
and the customs classification of the product or the internal regulatory regime of the product are
the indicative criteria to make this determination.50 In Japan-Alcoholic Beverages, shochu and
vodka were considered to be “like” products because of similar physical characteristics even when
how they are distilled varies.
Farmers, in both Runbeti and Alducra, cultivate agave to produce tapagium and thus, both products
are produced in the same way. This tapagium tastes similar to tequila and is also made in the same
48 Appellate Body Report, Canada — Periodicals, WT/DS31/AB/R (June 30, 1997).
49 Appellate Body Report, Philippines — Distilled Spirits, para. 170, WT/DS396/AB/R; WT/DS403/AB/R (Dec. 21, 2011)
50 GATT Working Party Report, Border Tax Adjustments, L/3464, adopted 2 December 1970, B.I.S.D. 18S/97, para. 18.
29
way as tequila. Therefore, the tapagium products originating from both countries have similar
physical characteristics vis-a-vis their properties, and how they taste and look. Further, both
imported and domestic tapagium products essentially fall under the same class of alcoholic
beverages as they are agave spirits similar to tequila. Even the end-use of tapagium, like tequila,
is the same. Consequently, the competitive relationship between the imported and domestic
tapagium is direct and substitutable. Given that even imperfectly substitutable products can be like
products,51 the tapagium products meet a higher standard of required competitive relationship.
Thus, the tapagium products are like products.
ii. Runbeti’s tapagium products are taxed in excess of Alducra’s domestic tapagium.
Article VIII(2), first sentence, of ARTA applies ‘to internal taxes or other internal charges of any
kind in excess of those applied, directly or indirectly, to like domestic products’.52 To determine
whether the tax is in ‘excess of’ domestic products, tax burdens imposed on the products should
be the primary object of comparison53 and thus, even the smallest amount of excess is enough to
attract a violation under this article. 54 Further, the non-deductibility of costs from an imported
51 Supra 62, para. 125,148,149.
52 Panel Report, Mexico — Taxes on Soft Drinks, para. 8.45, WTO Doc. WT/DS308/R (adopted oct. 7, 2005).
53 Panel Report, Argentina – Hides and Leather, para 11.182, WT/DS155/R (adopted Dec. 19, 2000).
54 Appellate Body Report, Japan – Alcoholic Beverages II, pp. 23, WT/DS8/AB/R ; WT/DS10/AB/R ; WT/DS11/AB/R (Oct. 4, 1996).
30
product in contrast with the deductibility of taxable income by a domestic product, would be a
violation under article VIII(2), first sentence.55
Alducra’s domestic statute of 2015 had imposed bat-safe farming requirements on farmers
producing agave. It is reasonable to then assume that the majority of Alducra's producers have, by
now, already phased into the adoption of such bat-safe practices. Runbeti has not had similar or
equivalent legislation in place which makes compliance to equivalent bat-safe farming
requirements stringent, as it is a developing country. It follows then that, in fact, only the imported
tapagium would be subject to taxes as Alducra’s farmers have had a more organic transition into
complying with the requirements. By implication, Alducra’s domestic tapagium would have to
bear a substantially lower tax burden and would be able to deduce this taxable income by
complying with its national legislation, while only the imported tapagium from Runbeti would
have to incur those costs. Thus, the trade measures tax the imported tapagium from Runbeti in
excess of its domestic counterpart.
b. Trade measure is inconsistent with VIII (2), second sentence.
In arguendo that the imported tapagium products are not like and/or not in excess of domestic
tapagium, Alducra's trade measures still violate VIII (2) because they are inconsistent with the
obligation contained in the second sentence.
i. Imported and domestic tapagium products are directly competitive and substitutable.
55 Canada — Periodicals, para.19; John H. Jackson, National Treatment Obligations and Non-Tariff Barriers, 10 MICH. J. INT'L L. 207 (1989).
31
Like products are a subset of directly competitive and substitutable products [hereinafter, "DCS"].
So, if two products are like, they are also DCS.56 Tapagium products from Runbeti and Alducra
are like products as established above and thus are DCS products. Alternatively, even if the
products are not “like”, they are still DCS products because even imperfect substitutability suffices
with respect to VIII(2), second sentence.57 In Japan-Alcoholic Beverages II, it was held
that shochu is directly competitive with ‘whisky, brandy, gin, genever, rum, and liqueurs owing to
its imperfect substitutability.58
Further, to gauge substitutability and competitiveness, the competitive conditions in the tapagium
market as well as the cross-price elasticity can be factored in as a means of examining the relevant
markets.59 Since only Alducra and Runbeti produce tapagium, the consumer choice is a choice
between either of the two tapagium products. Currently, the market provides equally competitive
conditions for products. If the price of imported tapagium products increases, the demand for
domestic tapagium will consequently increase, as the consumers will prefer cheaper tapagium.
This shows a high degree of competitiveness and substitutability between both.
ii. Internal tax imposed by Alducra affords protection to domestic products.
56 Apellate Body Report, Korea — Alcoholic Beverages, para. 118, WTO Doc WT/DS75/AB/R; WT/DS84/AB/R (adopted Jan. 18, 1999).
57 Supra 67, pp. 16-17, Case C-8/74, Procureur du Roi v Benoit and Gustave Dassonville, 1974 E.C.R. 837.
58 Supra 61, Para 19, 25, 28.
32
Article VIII:2 of ARTA, the second sentence, gives effect to the obligation set out in Article
VIII:1.60 The provision requires a comprehensive and objective analysis of the structure and
application of the measure on domestic products as compared to imported products.61 In
Chile-Alcoholic Beverages, the Appellate body held that the taxes imposed by Chile were violative of GATT III:2, second sentence, even when most products of domestic origin fell into the less
favouring category.62 The Appellate body observed that this was because all imported products
fell into the less-favourable category creating a favourable environment for domestic products.63
Alducra has imposed the internal tax in a manner that results in protection of domestic tapagium
products. As tapagium production is limited to just Alducra and Runbeti,64 customer and market
choices are narrowed down to only these two options and consequently, price becomes an
important distinguishing factor, given both are viewed to be like products. The measure impacts
imported products from Runbeti, as Runbeti does not have any such legislation mandating bat-safe
practices. Thus, even if the tax measures apply to Alducran products as well, they afford less
favourable treatment to all imported products, creating a favourable environment for Alducra’s
domestic products.
60 Id., p. 27.
61 Id., p. 29.
62 Appellate Body Report, Chile — Alcoholic Beverages, para. 67, WTO Doc. WT/DS87/AB/R, WT/DS110/AB/R (adopted Dec. 13, 1999).
63 Supra 20.
33
2. Labelling requirements violate VIII(3) of ARTA.
a. Tapagium products are like.
The scope of ‘likeness’ in Article VIII:3 is considered to be wider than that in the first sentence of
Article VIII:2.65 So even if imported tapagium products are not perfectly substitutable with
domestic tapagium, they can be “like” under VIII:3 as a less demanding standard is contemplated
under this provision. 66 It is also pertinent to examine the latent demand that is suppressed by
regulatory barriers.67 The latent demand for imported tapagium is likely to be suppressed as
consumers will prefer domestic products with “bat-safe” labels. This also confirms a degree of
cross-price elasticity between the two commodities. Further, as has been previously argued, both
tapagium products are “like”.
b. Labeling requirements affect the sale and distribution of imported tapagium
products.
The labeling requirements are regulations that affect the internal sale and distribution of imported
products.68Thus, this suggests a low threshold of interpretation and confirms the application of
‘affecting’ to the mandatory labeling scheme introduced by Alducra. Further, access to the
"bat-safe" label constitutes an advantage because bats are nationally protected in Alducra and are also
of ecological significance to the whole of Architerpo. Consumers are increasingly turning
65 Appellate Body Report, EC — Asbestos, para 95, WT/DS135/AB/R (Mar. 12, 2001).
66 Supra 61, para. 97, 112.
67 Supra 69, para. 120.
68 Panel Report, India — Measures Affecting the Automotive Sector, pp. 7.181, WT/DS146/R, WT/DS175/R (Dec. 21, 2001).
34
conscientious and a label purporting sustainable production would place domestic tapagium on a
higher moral pedestal.69 Further, he ‘not bat-safe’ label is illustrated with a sad bat image and the
‘not’ is underlined and capitalized. Thus, the labelling requirement adversely affects the sale and
distribution of the imported tapagium.
c. The Labelling requirements provide less favourable treatment to imported
tapagium products.
A regulation that distinguishes between imported and domestic products should not be
discriminatory.70 Imported tapagium has been treated ‘less favourably’ than like domestic
products, because the labelling requirements modify the conditions of competition in the tapagium
market to the detriment of imported products71 and diminishes the 'effective equality of
opportunities'72 In Tuna-Dolphin II,73 the Appellate Body found US’s labelling requirements as
affording less favourable treatment because the measure modified conditions of competition in the
market and the detrimental impact could be attributed to the measure. Even if Tuna-Dolphin II
69 Supra 78.
70 Panel Report, Japan — Film, pp. 10.380, WTO doc. WT/DS44/R (adopted Mar. 31, 1998).
71 Appellate Body Report, Korea — Various Measures on Beef, para. 137, WTO Doc. WT/DS161/AB/R; WT/DS169/AB/R (adopted Dec. 11, 2000); Id, paras. 144, 149, 150, and 151.
72 Report of the Panel, United States - Section 337 of the Tariff Act of 1930, para. 5.11, L/6439 (Nov. 7, 1989), GATT BISD (36S/345).
35
held labeling based on unrelated process and production methods (“PPM”) to be allowed, it was
conditional on it not restricting trade.74
Labelling requirements by Alducra discriminate against imported tapagium because the Statute
does not accord ‘effective equality’ to imported products and labelling requirements are mandatory
and based on unrelated process and production methods (‘PPMs’). Moreover, this labelling
requirement is mandatory which implies that a product is required to use a label to be placed in the
market. Since the basis of the labels is a question of farming practices that don’t leave any trace in
the final product i.e. tapagium, labelling requirements factor in unrelated PPMs. Alducra’s
measures are mandatory, create trade restrictions and are based on unrelated PPMs, and are thus,
inconsistent with VIII:3.
3. Alducra’s intent behind imposing a tax to promote bat-safe farming practice is
immaterial
It is extraneous that protectionism was not an intended objective if a particular measure
nevertheless were to violate the principle set out in Art VIII:1 of ARTA. Such actions, even if
remotely managed to safeguard the interests of domestic products, holds grounds for violation.
Then the desire to engage in a non-protectionist framework in the minds of legislators or the
regulators who imposed the measure becomes immaterial.75 The intention behind the legislation
passed by Alducra in 2015 makes no difference if it created favourable market conditions for
domestic products.
74 Id.
36
Since Alducra and Runbeti are the only two Tapagium producing countries on Architerpo,
products from both the countries are de facto elements of the same tapagium market. Alducra’s
domestic legislation passed in 2015 that instituted certain bat-safe farming methods pre-emptively
restructured the market related to the import and sale of tapagium in Alducra. Not only will this
affect the imports from Runbeti but also the internal sale of the same. Thus, the tax measures are
protectionist in nature.
B. Trade measures are not justified by the substantive provisions of Article X of the ARTA.
1. Trade measures do not comply with article X(a) and (b) because they fail the ‘necessity
test’.
Article X of the ARTA incorporates the principle of national treatment as well as
non-discrimination. Alducra’s stipulations that the measures are “necessary” to protect animal life or
health and public morals are misleading and are misused for indirect protection.76 The necessity
test used by GATT/WTO panels to determine whether the validity of an exception “weighs and
balances” a series of factors, including the importance of the objective, the contribution of the
measure to that objective, and the trade-restrictiveness of the measure.”77 Additionally, a
comparison between the challenged measure and possible alternatives should be undertaken.
Alducra fails to establish the necessity of trade restrictions.
a. There is a lack of nexus between the measures taken and the end-goal sought
76 GATT Secretariat, Guide to GATT Law and Practice 519 (6th ed. 1994).
77 Appellate Body Reports, EC-Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R (June 18, 2014).
37
An alternative measure consistent with article X of ARTA is available to a party only to the extent
that it ‘contributes to the realization of the end pursued.78 To be characterized as necessary, the
trade measures’ contribution to the achievement of the objective must be material, not merely
marginal or insignificant.79 Alducra’s stated that its objective is to conserve and protect the
long-nosed bats80 and thus their trade measure mandated the flowering of at least 5% of the agave crops.
This requirement is unclear and arbitrary and has no material contribution to the stated objective.
Other metrics such as the size of the farm, regional bat population that feeds on agave plants, etc.
need to be taken into consideration to impose such quotas. Thus, there is no clear material nexus
between Alducra’s trade measures and the protection of bats.
b. The trade measures are unnecessarily trade-restrictive.
It is pertinent to weigh the contribution and impact of a trade measure against its
trade-restrictiveness.81 This can be determined by examining whether it could be reasonably expected
from Alducra to employ such a policy to achieve its environmental policy objectives.82 Runbeti is
a developing country that exports a significant volume of 10 million liters of tapagium to Alducra.
Alducra’s legislation imposes the same standards as of a developed country on Runbeti’s
78 Supra 78, para. 172.
79 Appellate Body Report, Brazil — Retreaded Tyres, para 210, WTO Doc. WT/DS332/AB/R (adopted Dec. 3 2007)
80 para 28, Compromis
81 Supra 98.
82 Report of the Panel, Thailand- Restrictions on Importation of and Internal Taxes on Cigarettes, para. 75, (DS10/R (Nov. 7, 1990), GATT BISD (37th Supp.), at 200, (1990).
38
developing economy and does not take Runbeti’s resources and differentiated obligation as a
factor. As a result, the 20% tax that Runbeti’s products would face and the conditioned access
Alducra has to its domestic market would result in significant losses and an adverse trade
environment for Runbeti. Thus, Alducra’s trade measures are disproportionately restrictive to its
policy objectives and are not reasonably expected.
c. Availability of less trade-restrictive alternatives.
After the necessity test has been applied, it must be determined whether there are any
less-restrictive alternatives that the importing country could have implemented in lieu of the trade
restrictions.83 In this case, Alducra could have avoided the taxation and labeling requirements by
1) fulfilling its international obligations under the CBD by providing financial assistance to
Runbeti; 84 2) forming a multilateral agreement with states in the Architerpan region to explore
safer farming practices.; or 3) renegotiating ARTA with Runbeti. Runbeti did not explore these
less-restrictive alternatives before implementing the import ban, and therefore, violated its
obligations under ARTA.
2. Trade measures do not comply with article X(g)
A blanket restriction is still prohibited under Article X(g).85 The end result of a concerned trade
measure and the policy sought to achieve it must be a close and real one.86 The US-Canadian Tuna
83 Supra at 46.
84 CBD, art. 21.
85 Appellate Body Report, US — Shrimp, para. 141, WTO Doc. WT/DS58/AB/R (adopted Oct. 12, 1998).
39
held that the US’ measures were not justified under article XX(g) of GATT as a similar measure
was not adopted with regard to its domestic tuna of the same kind.87 Further, such a measure is
subject to the differentiated responsibilities under environmental law.88 Given that Alducra, as a
developed country, abides by the standards established by its 2015 legislation and yet its trade
measure mandates an equivalent protection from Runbeti, a developed country. This shows that
Alducra’s trade measure is a blanket restriction which affords high standards of environment
protection on Runbeti, but does not afford a similar measure with a differentially higher standard
for its domestic production of tapagium.
3. Trade measures do not comply with the chapeau of Article X.
a. The trade measures constitute “arbitrary and unjustifiable discrimination.”
Article X analysis should consider the way a trade measure is applied rather than the content of
the measure itself. 89Alducra's trade measures are discriminatory because it applies this to induce
Runbeti to adopt essentially the same legislation as that applied by Alducra even when Runbeti is
differently situated in terms of access to technology and resources owing to its “developing” status.
Alducra’s unilateral imposition of its domestic statute beyond its jurisdiction is in a discriminatory
manner.
i. Trade measures are discriminatory because they are coercive.
87 Panel Report, US—Canadian Tuna, para 4.5, LDS21/R, (Sept. 3, 1991) GATT BISD (39th Supp.), at 155(1991).
88 Panel Report, China — Raw Materials, para. 7.551, WT/DS394/R; WT/DS395/R; WT/DS398/R (July 5, 2011).
40
Alducra’s legislation uses the phrase “same or equivalent” thereby placing a high burden on
Runbeti and leaving no room for even comparable practices to be pursued. This particular
implication of its domestic statute exerts a “coercive effect” on countries that aren’t similarly
situated as Alducra, like Runbeti.
In Tuna-Dolphin, the panel realized that allowing the US to ban imports from another country
simply because that country has different environmental legislation would result in “an open-ended
route for any country to apply trade restrictions unilaterally . . . to impose its standards upon other
countries”90 which would “conflict with the main purpose of the multilateral trading system.”91
Here, Alducra is similarly undermining the multilateral trading system.
ii. Trade measures are discriminatory because of its unilateral character. International environmental law prohibits unilateral trade sanctions because they contravene the
concept of sustainable development.92 The costs associated with letting 5% of the crop flower
disproportionately affect Runbeti since its developing economy heavily relies on the import and
sale of tapagium. Small farmers in a developing country would have to bear the brunt of letting
5% of the agave crops go waste since after flowering those crops cannot be used to produce
tapagium. The import-ban in the shrimp-turtle also amounted to “unjustifiable’ discrimination
since the US failed to engage in “serious” negotiations with all affected countries before imposing
90 Supra 92.
91 Id.
41
its import ban. 93 Alducra did not engage in any even-handed negotiations with Runbeti before
imposing the trade measures. Thus, the measures are unilateral and in bad faith,
b. The measures constitute a “disguised restriction on trade”.
“Disguised restriction on trade” includes disguised discrimination.94 Since Alducra enforced these
trade restrictions without contemplating a cooperative arrangement with Runbeti and since it only
considered the resources available with its domestic farmers, its trade measures are vastly coercive,
unjust and are a "disguised restriction" on international trade. The Appellate body, on account of
the US not pursuing the possibility of entering into cooperative arrangements as well as its
regulation only considering the costs of various regulatory options available only to the domestic
refiners, concluded that the regulation was a “disguised restriction” on international trade.95
93 Supra 107, para. 119,120.
94 Appellate Body Report, US—Shrimp (Art 21.5—Malaysia), para 118, WTO Doc. WT/DS58/AB/RW (adopted Oct. 22, 2001).
42
CONCLUSION AND PRAYER FOR RELIEF
The Respondent, the Republic of Runbeti, respectfully requests the ICJ to adjudge and
declare that:
1. The Republic of Runbeti did not violated international law with respect to its wind farm
project; and
2. The Federal States of Alducra violated international law with respect to its trade measures
for tapagium products.
RESPECTFULLY SUBMITTED,
