SPECIAL INTERNATIONAL TRIBUNAL

THE CASE CONCERNING

SEISMIC SURVEYS AND OIL SPILLS

THE REPUBLIC OF ARAGUAIA

(APPLICANT)
V.
THE REPUBLIC OF RISSO
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

NAMES OF COUNSELS:
AGERO, NIKKI ROSE
BOLTIADOR, MARYDITH
FORTUNA, JERYL GRACE
SEBALLOS, ARYAN
VARGAS, HANNAH

11 MARCH 2015

Respondents Memorial
TABLE OF CONTENTS
INDEX OF AUTHORITIES
SUMMARY OF FACTS
ISSUES PRESENTED
SUMMARY OF ARGUMENTS
DISCUSSION/ARGUMENTS
A. The acts made by Risso Electric Company (RECO) did violate the

I
II
III
IV
V

principles of international law and are not attributable to the

Republic of Risso.
I. RECOs actions are not attributable to the State of Risso.
II.
Assuming ex gratia argumenti that the actions of RECO are

attributable to the Republic of Risso there exist no violation to

the principles of international law.

i. An Environmental Impact Assessment required under the
Espoo Convention is no longer necessary for RECOs

activities.
a. Activities of RECO were not one of those listed under
Appendix I of the Espoo Convention which require an

Environmental Impact Assessment (EIA).

b. Considering the criteria under Appendix III of the Espoo
Convention, RECOs activities do not result to a
ii.

significant transboundary impact.

Assuming the activities required the issuance of an EIA,
RECO undertook necessary mitigating measures so as to

iii.

comply with the Espoo Convention.

The precautionary approach enshrined under Principle 15 of

iv.

the Rio Declaration is not violated.

Under the Convention on Biodiversity (CBD) and the United
Nations Convention on the Law of the Sea (UNCLOS), the
acts of RECO are in accordance with the States right to

III.

explore and exploit their own natural resources.

Assuming arguendo that there is a violation of the principles of
international law, States are justified under the doctrine of

10

necessity.
B. Admiral Panfilo Blas, Chairman of the Crisis Military Commission of

11

the

Republic

of

Araguaia,

is

criminally

responsible

for
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Respondents Memorial
committing a war crime.
CONCLUSION/PRAYER

VI

INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
Convention on Biological Diversity, 31 I.L.M. 818 (1992).
Convention on Environmental Impact Assessment in a Transboundary

2
3

Context, Feb. 25, 1991, 1989 U.N.T.S. 309, 30 I.L.M. 802 (Also known as
Page 3 of 16

Respondents Memorial
Espoo Convention)
Second Amendment to the Espoo Convention, June 4, 2004.
United Nations Convention on the Law of the Sea
UNITED NATIONS DOCUMENTS
Consideration of Prevention of Transboundary Harm from Hazardous

4
5
7

Activities and Allocation of Loss in the Case of Such Harm, art.2,

G.A. Res. 62/68 U.N. Doc.A/RES/62/452 62 nd sess. Agenda item 84
(2008)
Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83,

Annex, U.N. Doc. A/RES/58/83/Annex (2002).

BOOKS
Crawford. The International Law Commissions

10

Articles

on

State

Responsibility: Introduction, Text and Commentaries. Cambridge:

CUP, 2002.
JOURNAL ARTICLES
Beckmann, Alexander. Modeling Effectiveness of Gradual Increases in

12

Source level to Mitigate Effects of Sonar on Marine Mammals,

Conservation Biology 0, 0 2013.
Dolman, S. J., C. R. Weir and M. Jasny, Comparative review of marine

13

mammal guidance implemented during naval exercises, Marine

Pollution Bulletin 4:465477, 2009.
Feit, Michael. Responsibility of the State under International Law for the

14

Breach of Contract Committed by a State-Owned Entity. Berkeley

Journal of Internal Law 28, 1 (2010).
Weir, Short-Finned Pilot Whales: Respond to an Airgun Ramp-up

15

Procedure off Gabon, Aquatic Mammals 34: 349, 2008.

GOVERNMENT PUBLICATIONS
International Law Commission. Responsibility of States for Internationally

16
17

Wrongful Acts: Commentaries, Fifty-third session. (Commentaries)

INTERNATIONAL PUBLICATIONS
International Association of Geophysical Contractors (IAGC). Seismic

19

Surveys and Protecting the Marine Environment, 2004.

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Respondents Memorial

SUMMARY OF FACTS

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Respondents Memorial

ISSUES PRESENTED
1. Whether or not the acts made by Risso Electric Company (RECO) violate the
principles of international law and are they attributable to the Republic of Risso.
2. Whether or not Admiral Panfilo Blas, Chairman of the Crisis Military Commission
of the Republic of Araguaia, is criminally responsible for committing a war crime.

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Respondents Memorial

SUMMARY OF ARGUMENTS
RECOs actions are not attributable to the Republic of Risso. Republic of Risso
did not use its ownership interest to instruct, direct and control the seismic survey
activities conducted by RECO. The fact that RECO initiated and asked permission to
the Republic of Risso to conduct exploration activities refutes the exercise of control by
the state.
Also, assuming that the actions of RECO are attributable to the Republic of
Risso, there is no violation to the principles of international law. RECOs activities does
not require an EIA because of the following: (a) the activities are not listed in Appendix I
and III, also it is unlikely that it will cause adverse effect or any transboundary harm; (b)

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Respondents Memorial
the activities are for exploration only, not for extraction of petroleum and natural gas;
and (c) the requirement for an EIA is merely discretionary only.
Furthermore, assuming the activities required the issuance of an EIA, RECO
undertook necessary mitigating measures to comply with the Espoo Convention by
adopting ramp-up procedures, requiring non-board observer and regulating airguns
in order not use them when a whale is spotted within 500 meters of the vessel.

DISCUSSION/ARGUMENTS
I.

RECOs actions are not attributable to the Republic of Risso.

The conduct of a corporation is not prima facie attributable to a state under

general international law, even where such corporation is wholly owned by the state or
the state has a controlling interest in it.1

Crawford, The International Law Commissions Articles on State Responsibility: Introduction,

Text and Commentaries (Cambridge: CUP, 2002) (ILC Commentaries) 74 [1].
1

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Respondents Memorial
In order to determine that the activities of RECO are attributable to State of
Risso, Articles 4, 5, and 8 on State Responsibility for Internationally Wrongful Acts set
forth a basis for attribution to the state. Article 5 read as follows:
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or
any other functions, whatever position it holds in the organization of the State,
and whatever its character as an organ of the central Government or of a
territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with
the internal law of the State.
Article 5 states that:
Conduct of persons or entities exercising elements of governmental authority
The conduct of a person or entity, which is not an organ of the State under
article 4 but which is empowered by the law of that State to exercise elements of
the governmental authority, shall be considered an act of the State under
international law, provided that the person or entity is acting in that capacity in the
particular instance.
Article 8 entails that:
Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an act of
a State under international law if the person or group of persons is in fact acting
on the instructions of, or under the direction or control of that State in carrying out
the conduct.
In order to attribute conduct that constitutes a breach of international law
to the state, it is sufficient if one of the elements is present in the entity that
carried out that conduct: the entity is an organ of the state (structure), it is

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Respondents Memorial
empowered to "exercise elements of the governmental authority" (function), or it
is controlled by the state (control).2
However, the above-mentioned elements are not present in RECO. Since
corporate entities, although owned by and in that sense subject to the control of
the State, are considered to be separate, prima facie their conduct in carrying out
their activities is not attributable to the State unless they are exercising elements
of governmental authority within the meaning of article 5. 3 In article 8, three terms
are enumerated, namely, instruction, direction and control. These terms are
also important if the acts of a corporation entity are attributable to the State. In
the case at hand, Republic of Risso did not use its ownership interest to instruct,
direct and control the activities conducted by RECO, particularly the seismic
surveys. In fact, RECO was the one who initiated and asked permission from the
Republic of Risso in order to begin exploration for hydrocarbon reserves with
Yukule. There was no evidence that the State exercises control especially in
giving instructions or directions to RECO to conduct activities to solve the energy
crisis. If the State of Risso exercised control over RECO, then, there is no need
for RECO to ask permission from the State to conduct exploration for
hydrocarbon. However, this is not the case presented here.
II.

Assuming ex gratia argumenti that the actions of RECO are attributable to

the Republic of Risso, there is no violation to the principles of
international law.
i. An Environmental Impact Assessment required under the Espoo Convention is
no longer necessary for RECOs activities.
a. Activities of RECO were not one of those listed under Appendix I of the
Espoo Convention which require an Environmental Impact Assessment (EIA).

Michael Feit, Responsibility of the State under International Law for the Breach of Contract
Committed by a State-Owned Entity, Berkeley Journal of Internal Law 28, 1 (2010).
3
International Law Commission, Responsibility of States for Internationally Wrongful Acts:
Commentaries, Fifty-third session.
2

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Respondents Memorial
Under Article 2 (3) of the Convention on Environmental Impact
Assessment in a Transboundary Context, also known as Espoo Convention, an
EIA is undertaken prior to a decision to authorize or undertake a proposed
activity listed in Appendix I that is likely to cause a significant adverse
transboundary impact.
In the case at hand, the circumstances stated are not applicable even if
Espoo Convention is legally binding to the Republic of Risso. Marine seismic
surveys are not listed in Appendix I and it is also unlikely that it will cause any
significant adverse effect to short-beaked dolphins.
The contention that the seismic surveys constitute offshore hydrocarbon
production is not tenable. This is included in the amendment to Appendix I,
which Republic of Risso has already ratified. According to the Espoo Convention,
hydrocarbon production is an 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 meters per day in the case of gas.
However, studies show that seismic survey is a key tool in oil and natural
gas exploration and in siting renewable energy facilities. The use of modern
seismic technology is similar to ultrasound technology. Todays advancements in
seismic technology, which can pinpoint the most fruitful areas for hydrocarbon
potential, have contributed to reducing the overall environmental footprint
associated with oil and gas exploration. Seismic technology has also helped in
decreasing operational and safety risks associated with oil and gas development.
Contrary to what has been said, seismic surveying is very well understood and a
very safe industry practice.4
Therefore, hydrocarbon production only refers to extraction activities, but it
is obvious that the seismic surveys have not led to the extraction of petroleum or
natural gas. So, the activities of RECO still not included in the list.

International Association of Geophysical Contractors (IAGC), Seismic Surveys and Protecting

the Marine Environment, 2004.
4

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Respondents Memorial
On the contention that there is a need for an EIA, Article 204, 205 and 206
of the UNCLOS and Article 4 of CBD entails that an EIA is not a mandatory
requirement for a state to comply. The provisions only states the terms, as far as
possible, as appropriate and as far as practicable, that states undertake an
EIA to regulate the adverse effect. Additionally, the provisions did not even state
the factors and standards that must be considered in order to conduct an EIA.
Therefore, Republic of Risso have no certain obligation to conduct an EIA and it
is merely discretionary on the part of Risso.
b. Considering the criteria under Appendix III of the Espoo Convention,
RECOs activities do not result to a significant transboundary impact.
Under Article 3 of CBD and Article 56 and 193 of UNCLOS 193, Republic
of Risso has sovereign rights over the Yukule Island. Hence, there is no
transboundary harm that is done. In order to be considered transboundary, the
harm must be caused in the territory of a State other than the State of origin. 5
Assuming that the considerations in order to become transboundary were
met, the Espoo Convention Appendix III sets the general criteria to assist in the
determination of the environmental significance of the activities not listed in
Appendix I. The following is likely to have a significant adverse transboundary
impact:
a. Size: the proposed activities are large for the type of the activity;
b. Location: the proposed activities are located in or close to an area of
special environmental sensitivity or importance, and of proposed activities
in locations where the characteristics of proposed development that would
likely have a significant effects on the population;
c. Effects: the proposed activities with particularly complex and potentially
adverse effects, including those giving rise to serious effects on humans
or on valued species or organisms, threaten the existing or potential use

Consideration of Prevention of Transboundary Harm from Hazardous Activities and Allocation

of Loss in the Case of Such Harm, art.2(c), G.A. Res. 62/68 U.N. Doc.A/RES/62/452 62nd sess.
Agenda item 84 (2008)
5

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Respondents Memorial
of an affected area and those causing additional loading that cannot be
sustained by the carrying capacity of the environment.
Additionally, the concerned parties shall consider the prosed activities that
are located close to an international frontier, as well as more remote proposed
activities that could give rise to significant transboundary effects far removed
from the site of the environment.6
In the case at hand, the criteria in determining the significant adverse
transboundary impact were not met. In terms of size, two vessels were used by
RECO, which are relatively modest in size. Thereby, RECOs activities will not
cause any adverse effect because it will not constitute a large type of activity,
considering its size.
When it comes to the criterion on location, it is Republic of Rissos
sovereign right to exploit and explore their natural resources in accordance to
Article 56 and 93 of the UNCLOS and Article 3 of CBD. Thereby, RECOs
activities did not meet the criterion based on location.
Pertinent to the third criterion on the adverse effects caused by the
activities, it failed to establish a correlation between RECOs activities and
transboundary harm. Even the final opinion conducted by the inquiry commission
in accordance to Article 3 (7) of the Espoo Convention, one member concluded
that the connection was likely to cause and continued to cause adverse impact.
One member also stated that past activities were not likely to have caused any
significant adverse transboundary impacts. The third member also found out that
even if the activities may have caused adverse effect, the mitigation measures
will prevent the effect in the future.
Additionally, according to the study conducted by the International
Association of Geophyisical Contractors (IAGC), more than four decades of
worldwide seismic surveying and various scientific research indicate that the risk
of direct physical injury to marine mammals is extremely low and there is
6

Espoo Convention, Appendix III

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Respondents Memorial
currently no specific evidence demonstrating biologically significant negative
impacts on marine mammal populations7. Therefore, there is a lack of evidence
in proving that RECOs activities caused harmful effects.
ii. Assuming the activities required the issuance of an EIA, RECO undertook
necessary mitigating measures to comply with the Espoo Convention.
Under the Espoo Convention, the parties must be mindful of the need
and importance to develop anticipatory policies and of preventing, mitigating
and monitoring significant adverse environmental impact in general and more
specifically in a transboundary context. This mitigating measures warrant
that adverse transboundary impacts will not occur.
Several navies have adopted ramp-up procedures in an attempt to
mitigate effects on marine mammals of sonar used in anti-submarine
warfare8. Ramp-up schemes are used for seismic surveys 9. It uses a gradual
build-up of airgun sound level over time, usually 20-40 minutes, to warn
marine mammals, allowing them to depart from the vicinity of an airgun
source before full operating level is projected 10. Additionally, according to the
study conducted, their results suggest that ramp-up protocols can be
effective at reducing the number of marine mammals experiencing sounds
that are high enough to cause temporary or permanent threshold shifts. 11
In the case at hand, RECO has undertaken a ramp up procedure
beginning on 1 April 2008, which is one of the mitigating measures
presented. The survey begins with the firing of a single airgun (the smallest
airgun in terms of energy output and volume). Additional airguns are
gradually activated over a period of 20 to 40 minutes until the desired
operating level of the airgun array is reached. Furthermore, it has taken

Ibid, note 4.
S. J. Dolman, C. R. Weir and M. Jasny, Comparative review of marine mammal guidance
implemented during naval exercises, Marine Pollution Bulletin 4:465477, 2009.
9
Ibid, note 8.
10
Weir, Short-Finned Pilot Whales: Respond to an Airgun Ramp-up Procedure off Gabon,
7
8

Aquatic Mammals 34:349 (2008).

Alexander Beckmann, Modeling Effectiveness of Gradual Increases in Source level to

Mitigate Effects of Sonar on Marine Mammals, Conservation Biology 0, 0 2013.
11

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Respondents Memorial
additional steps of requiring all survey vessels to have a non-board observer
and of regulating airguns to not use them when a whale is spotted within 500
meters of the vessel. These steps reduce any alleged impacts below the
significant level, thereby complying the requirement under the said
convention.

CONCLUSION/PRAYER
Respondent, the State of Risso, respectfully prays that the judgment be rendered
that:
1. The acts made by RECO did not violate the principles of international law and
are not attributable to the Republic of Risso.
2. Admiral Panfilo Blas, Chairman of Crisis Military Commission of the Republic of
Araguaia is criminally responsible for committing the war crime.

Respectfully submitted,

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Respondents Memorial
AGENTS OF RESPONDENT

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