[TEAM NO.

2467R]

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING

QUESTIONS RELATING TO MOUNTAIN GORILLAS

AND IMPACT ASSESSMENT

ARINGUV

(APPLICANT)

v.

REPLOMUTÉ

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

28th Annual Stetson International Environmental Moot Court Competition

2023-2024
 TABLE OF CONTENTS

INDEX OF AUTHORITIES........................................................................................................5

QUESTIONS PRESENTED .....................................................................................................12

SUMMARY OF JURISDICTION............................................................................................13

STATEMENT OF FACTS .........................................................................................................14

SUMMARY OF ARGUMENTS ..............................................................................................16

MAIN ARGUMENTS ...............................................................................................................17

I. REPLOMUTÉ HAS NOT VIOLATED INTERNATIONAL LAW WITH RESPECT TO THE

PREPARATION OF AN EIA RELATIVE TO THE OIL EXPLORATION AND EXTRACTION

ACTIVITIES...............................................................................................................................17

A. THE EIA CONDUCTED BY DRI IS VALID AND SUFFICIENT UNDER RELEVANT

CONVENTIONS AND INTERNATIONAL INSTRUMENTS. ..................................................18

1. There is no obligation to conduct another EIA under international

instruments to which Replomuté and Aringuv are signatories. .....................20

a. The application of the Espoo Convention by Aringuv is incorrect. ....21

b. There is no obligation to prepare another EIA based on the CBD. .....24

c. Replomuté has no obligations under the UNFCCC and the Paris

Agreement. ..........................................................................................................25

i. Replomuté’s actions are consistent with the principle of common

but differentiated responsibilities (“CBDR”). .......................................27

2
 d. International environmental instruments do not require the conduct

of another EIA but only emphasize cooperation and support among

States. ....................................................................................................................29

B. THE EIA CONDUCTED BY DRI IS CONSISTENT WITH CIL. .......................................30

II. THE ACTIONS OF REPLOMUTÉ WITH RESPECT TO THE PROPOSED OIL EXTRACTION

ACTIVITIES IN DRI COMPLY WITH CONVENTIONS AND CUSTOMARY INTERNATIONAL

LAW. .........................................................................................................................................33

A. THE PROPOSED OIL ACTIVITIES WILL NOT RESULT IN SIGNIFICANT

TRANSBOUNDARY HARM. ................................................................................................34

1. The oil activities are confined within the territory of DRI. .........................35

2. Assuming that transboundary harm exists, Aringuv failed to establish

the threshold of risk. ...............................................................................................36

3. There is no transboundary movement of harmful effects. ..........................37

B. REPLOMUTÉ’S ACTIONS DO NOT VIOLATE THE CMS. ..............................................37

1. The duties contained in Article III of CMS apply to Range States only. .38

2. Replomuté’s nor DRI’s actions do not constitute ‘taking’. ..........................38

3. Replomuté is not in violation of its obligations as a non-Range State

under the CMS..........................................................................................................40

C. REPLOMUTÉ HAS NO INDIRECT RESPONSIBILITY THROUGH ALLEGED COERCION OF

THE DRI. ...........................................................................................................................41

1. ILC’s ARSIWA is not legally binding. ...........................................................42

3
 2. Replomuté did not coerce DRI to commit an IWA........................................43

a. Replomuté did not coerce DRI to violate the Gorilla Agreement and

the CMS. ..............................................................................................................44

3. The arbitral penalty amounting to $825 million (USD) does not constitute

“colonial extortion.” ................................................................................................45

Conclusion ...................................................................................................................................47

4
 INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention on Environment Impact Assessment in a 17, 18, 22, 24, 25,

Transboundary Context, opened for signature Feb. 25, 1991, 1989 27

U.N.T.S. 309

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 18, 20, 24, 25

Convention on the Conservation of Migratory Species of Wild 37, 38, 40, 44

Animals

Vienna Convention on the Law of Treaties, May 23, 1969, 1155 22, 23, 26

U.N.T.S.

African Convention on the Conservation of Nature and Natural 30

Resources, Sept. 15, 1968, CAB/LEG/24.1

Revised African Convention on the Conservation of Nature and 30

Natural Resources, Oct. 15, 2020

UN DOCUMENTS AND OTHER INTERNATIONAL INSTRUMENTS

Rio Declaration on Environment and Development, June 3, 1992, 18, 27

A/CONF.151/26 (Vol. 1)

5
Commission for Environmental Assessment, Biodiversity in EIA & 19, 25

SEA, Background Document to CBD Decision VIII/28: Voluntary

Guidelines on Biodiversity-Inclusive Impact Assessment

United Nations Conference on the Human Environment, 23

Stockholm, June 5-16, 1972, A/CONF.48/14/Rev.1

Report of the United Nations Conference on the Human 23

Environment (1973)

United Nations Economic Commission for Europe, Guidance on 24

the Practical Application of the Espoo Convention - Convention on

Environmental Impact Assessment in a Transboundary Context

(UN/ECE) (2003)

Conference of the Parties to the Convention on Biological 25

Diversity, Curitiba, Brazil, Mar. 20-31, 2006, Decision Adopted by the

Conference of the Parties to the Convention on Biological Diversity at its

Eighth Meeting

United Nations Framework Convention on Climate Change art 4, 26, 28

signed 1992, FCCC/INFORMAL/84 GE.05-62220 (E) 200705

6
 Declaration on the Human Environment, June 5, 1972, 29

A/RES/2994

World Summit on Sustainable Development, Johannesburg, 17, 29

U.N. Doc. A/CONF. 199/20

International Law Commission, Report of the International Law 34

Commission on the Work of its Fifty-third session, U.N. Doc. A/56/10

International Law Commission, Yearbook of the International Law 35, 36, 37

Commission, 2001, Vol. II, Part Two (2012)

Agreement on the Conservation of Gorillas and their Habitats, 39, 44

signed Apr. 25, 2008, UNTS Code 45400

International Law Commission, Draft Articles on responsibility of 41

States for internationally wrongful act, 2001, Vol. II, Part Two (2012)

The European Union, Submission by Germany and the European 28

Commission on Behalf of the European Union and its Member States

(Dec. 17, 2020)

The Paris Agreement to the United Nations Framework 28

Convention on Climate Change, adopted Dec. 12, 2015, T.I.A.S.

INTERNATIONAL CASES AND ARBITRAL DECISIONS

7
 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 17, 18, 19, 22, 31,

I.C.J. 14, (Apr. 20) 32

Corfu Channel (UK v. Alb.) Merits, Judgment, I.C.J. Reports 1949 19

(Apr. 9)

Certain Activities carried out by Nicaragua in the border area (CR 20, 31

v. Nic.) and Construction of a Road in Costa Rica along the San

Juan River (Nic. v.CR), Judgment, 2015 I.C.J.

North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, at 3 30

Indus Waters Kishenganga Arbitration, (Pkst. v. IN), Final Award, 31

ICGJ 478 (PCA 2013), December 20, 2013, Permanent Court of

Arbitration [PCA]

The MOX Plant Case (Ire. v. UK), Order, Request for Provisional 32

Measures, ITLOS Case No 10, ICGJ 343 (ITLOS 2001) (Dec. 3)

Reports of International Arbitral Award, Trail Smelter Case (US v. 32, 36, 37

CA), at 63, 3 R.I.A.A., (1938 and 1941)

Case Concerning The Gabcikovo-Nagymaros Project, (HU v. Svk.), 36

(1997)

8
Military and Parliamentary Activities in and against Nicaragua, 43

Nicaragua Case (Nic. v. US), I.C.J. G.L.

BOOKS AND MANUALS

18
GILLESPIE, A. ENVIRONMENTAL IMPACT ASSESSMENTS IN

INTERNATIONAL LAW. REV. EUR. COMP. INT. ENVIRON. LAW

CORNELIUS VAN BYNKERSHOEK QUEASTIONES JURIS PUBLICI 20

(QUESTIONS OF PUBLIC LAW), LEIDEN J. OF INT. L.

JIANMING SHEN, S.J.D., THE BASIS OF INTERNATIONAL LAW: 21

WHY NATIONS OBSERVE, VOL. 17: NO. 2, PENN STATE INT. L. REV,

314 (1999)

JORDAN J. PAUST, CUSTOMARY INTERNATIONAL LAW: ITS 21, 30

NATURE, SOURCES AND STATUS AS LAW OF THE UNITED STATES, 12

MICH. J. INT. L. 59 (1990)

MAX VALVERDE SOTO, GENERAL PRINCIPLES OF 29

INTERNATIONAL ENVIRONMENTAL LAW, VOL. 3:193, ILSA J. INT. &

COMP. L.

9
 ALAVERDOV, ET. AL., CHAPTER 8, CYBERTERRORISM AND ITS 29

IMPACT ON CONTEMPORARY CONFLICTS AND SOCIETY (2023).

XUE HANQIN,TRANSBOUNDARY DAMAGE IN INTERNATIONAL 34

LAW 4 (2003)

JAMES D. FRY, COERCION, CAUSATION AND THE FICTIONAL 42, 43

ELEMENT OF INDIRECT STATE RESPONSIBILITY, 40 VANDERBILT L. REV.,

611

RONDA GREEN & KAREN HIGGINBOTTOM, NEGATIVE EFFECTS 39

OF WILDLIFE TOURISM ON WILDLIFE, IN WILDLIFE TOURISM RESEARCH

REPORT SERIES: NO. 5 (2001)

JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS 44

ARTICLES ON STATE RESPONSIBILITY

ESSAY, ARTICLES, AND JOURNALS

Stuart Butler, The Ebola virus outbreak had an impact on not only 40

humans, it also affected gorilla populations in the Congo and

Uganda

Cf. Written Comments of Germany and the Netherlands in 42

‘Responsibility of States for Internationally wrongful acts.

10
Comments and information received from Governments’ UN Doc

A/65/69 (May 14, 2010)

Martin G. Weinberg, What Are Types of Extortion & Their 45

Penalties?

The Obligation of EIA in the International Jurisprudence and its 33

Impact on the BBNJ Negotiations by Yan Song, Faculty of

International Law, China Foreign Affairs University, Beijing

100037, China

MISCELLANEOUS

Ellen Hey & Sophia Paulini, Common but Differentiated 27, 28

Responsibilities

Jonas Ebbesson, Common but differentiated responsibilities in the

climate change- historic evaluation and future looks (2017) (thesis 27

in International Environmental Law, Stockholm University).

Lawyers Responding to Climate Change, Common but 27

differentiated responsibilities and respective capabilities

(CBDRRC)

11
IUCN, The IUCN Red List of Threatened Species, 2017-2020 Report 23

(2022).

See statement made by the representative of the Russian Federation 42

at the meeting of the Sixth AG Committee held on Oct. 15, 2019,

UN Doc A/C.6/74/SR.13 (Feb.28, 2020)

QUESTIONS

PRESENTED

I. Whether or not Replomuté violated international law with respect

to the preparation of an Environmental Impact Assessment.

II. Whether or not the actions of Replomuté with respect to the

proposed oil extraction in the Democratic Republic of Ibirunga
comply with international law.

12
 STATEMENT OF JURISDICTION

In accordance with Article 40 of the Statute of the International Court of Justice, the

Sovereign States of Aringuv and Replomuté have submitted to the International Court of

Justice (“ICJ”) their Special Agreement pertaining to questions concerning their

differences relating to Mountain Gorillas and Impact Assessment. The Parties transmitted

a copy of the Special Agreement to the Registrar of the ICJ on 24 July 2023, which the

Registrar acknowledged receipt on 31 July 2023. The Parties agree that the Court has

jurisdiction to decide the matter.

13
 STATEMENT OF

FACTS

Aringuv is a sovereign State in central Africa that shares its eastern border with

the Democratic Republic of Ibirunga (“DRI”). Aringuv is classified as a lower-middle-

income country, while DRI is classified as a low-income country. Meanwhile, Replomuté

is a sovereign State in Europe and is classified as a high-income country.

Both DRI and Aringuv are home States to Royal Mountain Gorillas (Gorilla

ibirungai royali), a critically endangered species protected under the Convention on the

Conservation of Migratory Species of Wild Animals (“CMS”). Royal Mountain Gorillas

have two populations: First, the northern population, which occupies a transboundary

national park that frequently crosses the boundary between the DRI and Aringuv; Second,

the southern population, which occupies a national park in the DRI and has rarely been

sighted in Aringuv.

In 1981, DRI and Replomuté entered into a concession agreement, which contained

a mandatory binding arbitration clause. The Parties agreed that the Lenoir Corporation,

14
a corporation wholly owned and operated by Replomuté, has the right to conduct oil

exploration and extraction activities (“oil activities”) in the area inhabited by the southern

population of the Royal Mountain Gorillas in the DRI. Prior to signing the concession

agreement, DRI conducted an Environmental Impact Assessment (“EIA”), in accordance

with its national laws, subsequently taking into account its commitment to reduce its

greenhouse gas emissions by 20% from 2022 to 2031.

In May 2012, DRI’s new President, General Mina, ordered DRI’s withdrawal from

the 1981 DRI-Replomuté Agreement, unless Replomuté established a $50 million (USD)

fund, the disposition of which shall be subject to General Mina’s sole control. This

prompted Replomuté to invoke the mandatory arbitration clause.

In 2015, Replomuté prevailed in the arbitration. The arbitral tribunal permitted

Lenoir Corporation to proceed with its oil activities.

In November 2017, Aringuv’s new President, Melanie Waitz, communicated with

Replomuté, expressing her concerns about Replomuté’s planned oil activities in DRI.

Aringuv contended that the EIA conducted by DRI is non-compliant with the

Convention on Environment Impact Assessment in a Transboundary Context: Espoo

Convention (“Espoo Convention”), among others, as it purportedly failed to consider the

impacts of the oil activities on either the gorilla population or climate change. Replomuté

maintains that the EIA conducted by DRI is valid.

Negotiations between Aringuv and Replomuté continued but failed to resolve the

dispute. Hence, the two States entered into a Special Agreement to institute proceedings

15
before the ICJ. Replomuté agreed that Lenoir Corporation would not proceed with the

project until the ICJ issues its judgment.

SUMMARY OF ARGUMENTS

First, Replomuté did not violate international law with respect to the preparation

of an EIA. The conduct of the EIA relative to Lenoir Corporation’s oil activities was done

consistent with the Espoo Convention, Convention on Biological Diversity (“CBD”),

United Nations Framework Convention on Climate Change (“UNFCCC”), Paris

Agreement to the United Nations Framework Convention on Climate Change (“Paris

Agreement”), customary international law (“CIL”) and other international

environmental instruments.

Second, the actions of Replomuté with respect to the proposed oil activities in the

DRI comply with international law. Such activities did not violate the prohibition against

transboundary harm. Replomuté has no direct responsibility since it is not a Range State

under the CMS nor indirect responsibility since its acts did not constitute coercion, an

internationally wrongful act (“IWA”), over DRI.

16
17
 MAIN ARGUMENTS

I. REPLOMUTÉ HAS NOT VIOLATED INTERNATIONAL LAW WITH RESPECT TO THE

PREPARATION OF AN EIA RELATIVE TO THE OIL EXPLORATION AND EXTRACTION

ACTIVITIES.

An EIA is required with respect to proposed activities that are likely to cause

significant adverse transboundary impact.1 It must be undertaken by the State of origin2

at the project level of the proposed activity3 prior to its implementation.4 A State “of

origin” is the Contracting Party under whose jurisdiction a proposed activity is envisaged

to take place.5

Replomuté did not violate international law when it did not prepare an EIA since

the EIA conducted by DRI is: (a) valid and sufficient; and (b) consistent with CIL.

1 Convention on Environment Impact Assessment in a Transboundary Context Art. 2(2),

opened for signature Feb. 25, 1991, 1989 U.N.T.S. 309 [hereinafter Espoo Convention].

2 Id., Art. 2(3).

3 Id., Art. 2(7).

4 Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 14, ¶ 205 (April

20).

5 Espoo Convention, supra note 1, Art. 1(ii).

18
 A. THE EIA CONDUCTED BY DRI IS VALID AND SUFFICIENT UNDER RELEVANT

CONVENTIONS AND INTERNATIONAL INSTRUMENTS.

An EIA is a national procedure6 which is more of a reference than a decisive

component7 in the conduct of an activity that may pose a significant risk of damage to

other States.8 While projects that are likely to have significant adverse effects on biological

diversity require an EIA,9 its conduct is nevertheless subject to the decision of the

competent national authority.10 The assessment of whether there is adverse impact lies

with such national authority.11

6 Espoo Convention, supra note 1, Art. 1(vi).

7 GILLESPIE, A. ENVIRONMENTAL IMPACT ASSESSMENTS IN INTERNATIONAL LAW. REV. EUR.

COMP. INT. ENVIRON. LAW, 17(2), 221-233 (2008).

8 Pulp Mills on the River Uruguay, 2010 I.C.J. 14, ¶ 204.

9 Convention on Biological Diversity article 14 (a), opened for signature June 5, 1992, 1760

U.N.T.S. 79 [hereinafter CBD].

10 Rio Declaration on Environment and Development Principle 17, opened for signature

June 3, 1992, A/CONF.151/26 (Vol. 1) [hereinafter Rio Declaration].

11 Id.

19
 The preparation of an EIA, which should be country-specific,12 is within the ambit

of a State’s discretion.13 This includes the specific contents of the EIA required in each

case in a domestic law, having regard to the nature and magnitude of the proposed

development.14 The conduct of an EIA necessarily includes the duty of a State to observe

due diligence, a recognized custom15 which obligates States not to knowingly allow its

territory to be used for acts contrary to the rights of other States.16

DRI faithfully observed the foregoing obligation when it conducted an EIA based

on its national law before signing the concession agreement [R,17]. In particular, the EIA

conducted by DRI considered the impacts on nearby human populations of the likely

quantity of water to be used and waste to be produced, including the construction of the

12 Commission for Environmental Assessment, Biodiversity in EIA & SEA, Background

Document to CBD Decision VIII/28: Voluntary Guidelines on Biodiversity-Inclusive Impact

Assessment, at 14 (Apr. 2006)(by Roel Stooweg, et al.).

13 Pulp Mills on the River Uruguay, 2010 I.C.J. 14, ¶ 205.

14 Id., ¶ 205.

15 Id., ¶ 101.

16 Corfu Channel (UK v. Alb.), Merits Judgment, 1949 I.C.J. 6, at 22 ¶ 101 (Apr. 9).

20
pipeline [R,17]. DRI’s preparation of an EIA is sufficient compliance with its obligation to

exercise due diligence.17

Consequently, Replomuté is not remiss in assessing the likely impact of the oil-

related activities. It must be stressed that the said activities were meticulously planned

by Replomuté and DRI [R,28] having been conducted by DRI taking into consideration

its national laws [R,17] and any international obligations emplaced in 1981, such as the

African Convention on the Conservation of Nature and Natural Resources (“Algiers

Convention”) [R,28]. DRI’s act of conducting an EIA is consistent with Article 3 of the

CBD which recognizes the sovereign right of a State to exploit their own resources

pursuant to their own environmental policies.18

1. There is no obligation to conduct another EIA under international

instruments to which Replomuté and Aringuv are signatories.

Rules of international law are established through consent of States, and all

agreements between States are products of their sovereign wills. 19 The doctrine of consent

17 Certain Activities carried out by Nicaragua in the border area (CR v. Nic.) and

Construction of a Road in Costa Rica along the San Juan River (Nic. v. CR), Judgment,

2015 I.C.J., at 665-742, ¶ 104.

18 Convention on Biological Diversity, supra note 9, Article 3.

19 CORNELIUS VAN BYNKERSHOEK, QUAESTIONES JURIS PUBLICI (QUESTIONS OF PUBLIC LAW),

LEIDEN J. OF INT. L. 23, 269-276 (2010).

21
provides that consent of States voluntarily entering the international community

constitutes the basis of the validity of international law.20 Consent of a State to an

international agreement is the bedrock of its obligation to behave or conduct itself in a

specific manner, unless said obligation arises en consensu21 or from CIL.22 Thus, when a

State consents to an international instrument, it binds itself to perform the obligations

stated therein and the manner in which it must perform the same.

a. The application of the Espoo Convention by Aringuv is

incorrect.

It is noteworthy that DRI became a Party to the Espoo Convention in 2015 while

Replomuté became a Party in 1997 [R,12]. Clearly, both States were not yet parties to such

convention when such States entered into a concession agreement [R,12].

The Vienna Convention on the Law of Treaties (“VCLT”) provides that treaties

generally do not apply retroactively unless a different intention appears from the treaty

20 JIANMING SHEN, S.J.D.,THE BASIS OF INTERNATIONAL LAW: WHY NATIONS OBSERVE, VOL.

17: NO. 2, ART.3, PENN STATE INT. L. REV, 314 (1999).

21 Id., at 316.

22 JORDAN J. PAUST, CUSTOMARY INTERNATIONAL LAW: ITS NATURE, SOURCES AND STATUS AS

LAW OF THE UNITED STATES, 12 MICH. J. INT. L. 59 (1990).

22
or is otherwise established.23 The Espoo Convention also contains no explicit provision

stating that it may be applied retroactively, rather it specifically mentions its entry in

force,24 thus presumed to be applied prospectively. Consequently, Replomuté and DRI

are not duty-bound to observe the EIA requirement under the Espoo Convention.

Assuming otherwise, such convention cannot be invoked by Aringuv as it is not a

Party thereto [R,12, C,7]. In Pulp Mills case, the Court ruled that the Espoo Convention is

not applicable since the contending States are not parties thereto.25 Therefore, no rights

nor obligations have been created in Aringuv’s favor26 under the VCLT. Aringuv’s

understanding of the provisions of the Espoo Convention is incorrect. Nevertheless, even

if Aringuv may invoke the Espoo Convention upon Replomuté, the latter’s actions would

still not constitute a violation thereof.

First, the required consultation27 under Article 5 of the Espoo Convention applies

only to the Party of origin or the Contracting Party under whose jurisdiction a proposed

activity is envisaged to happen.28 In this case, the oil activities are to be conducted within

23 Vienna Convention on the Law of Treaties Section 28, opened for signature May 23, 1969,

1155 U.N.T.S. 331 [hereinafter Vienna Convention].

24 Espoo Convention, supra note 1, Article 18(1).

25 Pulp Mills on the River Uruguay, supra note 4, ¶ 210.

26 Vienna Convention, supra note 23, Section 34.

27 Espoo Convention, supra note 1, Article 5.

28 Id., Article 1(ii).

23
the DRI [R,17], which makes it the Party of origin. Consequently, DRI had the obligation

to initiate the said consultation,29 and not Replomuté.

Second, Aringuv’s claim that the advent of the Agreement on the Conservation of

Gorillas and their Habitats (“Gorilla Agreement”) and the climate change conventions

constitute “additional information” [R,29], is erroneous. What constitutes “additional

information” is the information’s non-availability30 at the time the decision to proceed

with the proposed activity was made. Additional information is inexistent in this case.

As early as 1980, the Royal Mountain Gorilla was already listed under the

International Union for Conservation of Nature (“IUCN”) Red List [C,8]. In 1981, DRI’s

EIA [R,17] significantly considered IUCN — the most comprehensive compendium of

information regarding the global conservation status of animal species.31

Likewise, DRI, Aringuv, and Replomuté, participated in the 1972 United Nations

Conference on Human Environment32 [R,6] which requires States to shape their actions

with a more prudent care for environmental consequences.33 With this, DRI already took

29 Id., Article 5.

30 Espoo Convention, supra note 1, Art. 6(3).

31 IUCN, The IUCN Red List of Threatened Species, 2017-2020 Report (2022).

32 United Nations Conference on the Human Environment, Stockholm, June 5-16 1972,

A/CONF.48/14/Rev.1.

33 Report of the United Nations Conference on the Human Environment (1973).

24
into consideration global climate when it prepared the subject EIA [R,29]. Verily,

Aringuv’s claim that there is “additional information” [R,29] rests on thin air.

Nevertheless, in the advent of additional information, the Espoo Convention

merely obligates the concerned State to inform the other concerned State of such

information and to request for consultation34 as courses of action35 prior to the

commencement of the activity.36 Consultations on the basis of additional information

may relate to monitoring37 and may be in the form of official letters,38 which Replomuté

had conformed to through periodic negotiations [R,26,35] and exchange of diplomatic

notes [R,28,30,33].

34 Espoo Convention, supra note 1, Article 6(3).

35 Id., Article 5 & Article 6(3).

36 United Nations Economic Commission for Europe, Guidance on the Practical

Application of the Espoo Convention - Convention on Environmental Impact Assessment

in a Transboundary Context (UN/ECE) (2003).

37 Id.

38 Id.

25
 b. There is no obligation to prepare another EIA based on the

CBD.

The CBD espouses the responsibility of States to ensure that activities within their

jurisdiction or control do not cause damage to the environment of other States or in areas

beyond the limits of their national jurisdiction.39

Article 14.1 (a) of the CBD obliges a Contracting Party to introduce procedures

requiring EIAs of proposed projects, as far as possible and appropriate, to avoid or

minimize adverse effects on biological diversity.40 Here, DRI conducted the EIA to the

best of its capability taking into account its status as a low-income [R,1] and developing

country [R,13].

Accordingly, what remains as the duty of DRI and Replomuté [R,7] per the CBD

guidelines41 is to conduct a “follow-up” EIA, and not another EIA. Such follow-up

includes activities relating to monitoring, compliance, enforcement, and environmental

39 Convention on Biological Diversity, supra note 9, Article 3.

40 Convention on Biological Diversity, supra note 9, Article 14 (a).

41 Conference of the Parties to the Convention on Biological Diversity, Curitiba, Brazil,

Mar. 20-31, 2006, Decision Adopted by the Conference of the Parties to the Convention on

Biological Diversity at its Eighth Meeting, at 18 ¶ 44, UNEP/CBD/COP/DEC/VIII/28 (June

15, 2006).

26
auditing42 which are all heavily dependent on the regulatory framework or national law

of DRI.

c. Replomuté has no obligations under the UNFCCC and the

Paris Agreement.

Aringuv raises that the EIA conducted by DRI must consider the climate impacts

associated with oil activities, particularly the applicability of Article 4.1 (f) of the

UNFCCC. [R,27]. Such contention lacks merit.

Aringuv, Replomuté, and DRI signed and ratified the UNFCCC and Paris

Agreement in 1992 and 2016, respectively, [R,13] or 11 years after DRI and Replomuté

entered into a concession agreement [R,17]. Again, the VCLT provides that obligations

do not apply to situations which occurred before the treaty took effect.43 Hence, the

obligations under said agreements and conventions were not binding upon Replomuté

and DRI when it entered into a concession agreement in 1981 [R,17].

Even applying the provisions of UNFCCC,44 such only provides the integration of

climate change considerations during the conduct of an EIA to minimize adverse effects

42 Commission for Environmental Assessment, supra note 12, at 40.

43 Vienna Convention, supra 23, Art. 28.

44 United Nations Framework Convention on Climate Change art 4, signed 1992,

FCCC/INFORMAL/84 GE.05-62220 (E) 200705 [hereinafter UNFCCC].

27
on the economy, public health, and the environment.45 However, this is not a blanket

mandate, since the same provision provides that the EIA must be done to the extent

possible within the State’s capability.46

With such, DRI’s EIA weighed public health when it contemplated the effects of

the oil-related activities on its citizens [R,17]. It even accounted the economy and the

environment when it implemented its National Determined Contribution (“NDC”) for

the reduction of greenhouse gas emissions with 18.5% thereof to be achieved with

external support [R,16] to which Replomuté is contributing [R,17,23,26].

Manifestly, the continuous monitoring of the EIA and the subsequent execution of

the oil activities [R,18,19,20,23,24,32,33] are guided by DRI’s NDC and the reduction of

greenhouse gas emissions [R,16] in compliance with its obligations under UNFCCC.

45 Id.

46 Id.

28
 i. Replomuté’s actions are consistent with the principle

of common but differentiated responsibilities

(“CBDR”).

Both the UNFCCC and Paris Agreement promote the principle of CBDR 47 which

recognizes climate change as a universal issue requiring collective action, but efforts are

commensurate to each State’s capabilities to address inequalities.48 Under the CBDR

principle, standards of conduct apply to developed countries considering that they

contribute more to global environmental problems and have greater technological and

financial resources49 to respond thereto.50

47 Ellen Hey & Sophia Paulini, Common but Differentiated Responsibilities, available at

https://opil.ouplaw.com/display/10.1093/law:epil/9780199231690/law-

9780199231690-e1568 (last accessed Nov. 7, 2023).

48 Jonas Ebbesson, Common but differentiated responsibilities in the climate change-

historic evaluation and future looks (2017) (thesis in International Environmental Law,

Stockholm University).

49 Rio Declaration, supra note 10.

50 Lawyers Responding to Climate Change, Common but differentiated responsibilities

and respective capabilities (CBDRRC), available at

https://legalresponse.org/legaladvice/the-principle-of-common-but-differentiated-

responsibilities-and-respective-capabilities-a-brief-summary/ (last accessed Nov. 8,

2023).

29
 States must reflect CBDR in its NDCs greenhouse gas emission development

strategies,51 while considering the classification of State Party under UNFCCC.52 DRI is

classified as a Non-Annex 1 Party while Replomuté is an Annex 1 Party [R,13,15]. As a

European State,53 Replomuté demonstrates cooperation in addressing climate change

issues contemplated in the CBDR principle. In fact, the European Union that covered

Replomuté’s NDC [R,15] submitted an update on its commitment of a 55% reduction in

greenhouse gas emissions by 2030.54

Moreover, Replomuté and DRI can jointly utilize the Friendship Fund [R,23] to

mitigate the effects of climate change. As a world’s leader in gross value of industrial

output [R,3], Replomuté can share environmentally-friendly technologies through

developing equipment that can provide sustainability.55

51 Ellen Hey & Sophia Paulini, supra note 47.

52 UNFCCC, supra note 44, Annex 1.

53 The European Union, Submission by Germany and the European Commission on Behalf of

the European Union and its Member States (Dec. 17, 2020).

54 Id.

55 The Paris Agreement to the United Nations Framework Convention on Climate

Change, adopted Dec. 12, 2015, T.I.A.S. No. 16-1104 [hereinafter Paris Agreement].

30
 d. International environmental instruments do not require the

conduct of another EIA but only emphasize cooperation and

support among States.

Treaties and declarations signify cooperation and support among States in

international matters related to the conservation and protection of the environment.56

Nevertheless, the documents adopted in conferences to which Replomuté and Aringuv

participated do not mandate another EIA [R,6]. These instruments call for cooperation

concerning the protection and improvement of the environment, and support for

programs of cooperation and assistance.57 Cooperation requires States to coordinate their

position and actions, resolve common problems, and create mutually acceptable

decisions.58 It does not require automatic submission by Replomuté nor DRI to the

56 MAX VALVERDE SOTO, GENERAL PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW,

VOL. 3:193, ILSA J. INT. & COMP. L. 194, 196 (1996).

57 Declaration on the Human Environment Principle 24, opened for signature June 5, 1972,

A/RES/2994 [hereinafter Stockholm Declaration]; Rio Declaration, supra note 10,

Principle 17; World Summit on Sustainable Development, Johannesburg, South Africa,

Aug. 26 - Sept. 4, 2002, Report of the World Summit on Sustainable Development ¶ 17, U.N.

Doc. A/CONF. 199/20.

58 ALAVERDOV, ET AL., CHAPTER 8, CYBERTERRORISM AND ITS IMPACT ON CONTEMPORARY

CONFLICTS AND SOCIETY (2023).

31
demands of Aringuv to conduct another EIA [R,27]. It merely requires both States, at the

very least, to coordinate on and address issues concerning the environment.

Moreover, the Algiers Convention59 and its Revised African Convention on the

Conservation of Nature and Natural Resources60 [R,11] both emphasize the necessity for

contracting States to cooperate whenever any national measure is likely to affect the

natural resources of any other State.61 Notably, the provisions of the Algiers Convention

apply only to independent African States which are signatories thereto.62 Hence,

Replomuté [R,3] is not within the scope of cited African Conventions.

59 African Convention on the Conservation of Nature and Natural Resources, signed Sept.

15, 1968, CAB/LEG/24.1 [hereinafter Algiers Convention].

60 Revised African Convention on the Conservation of Nature and Natural Resources,

signed October 15, 2020.

61 Algiers Convention, supra note 59, Art. XVI.

62 Id., Art. XXV.

32
 B. THE EIA CONDUCTED BY DRI IS CONSISTENT WITH CIL.

A norm crystallizes into CIL when there is state practice and opinio juris.63 CIL rests

not merely upon the practice of States as such but ultimately upon the practice of all

participants in the international legal process.64

There is no single correct approach of conducting EIAs.65 Nevertheless, CIL

requires a State to conduct an EIA before the commencement of a project66 that may have

a significant adverse impact in a transboundary context.67 The specific contents of such

EIA are left for each State to determine in its domestic legislation or in the authorization

process for the project.68

DRI conducted an EIA prior to the project's commencement in accordance with its

national laws [R,17] although the activities have no potential significant adverse impact

in a transboundary context. Hence, the EIA is valid and consistent under CIL.69

63 North Sea Continental Shelf (Ger. v. NL), Judgment, I.C.J. Reports 1969, at 3, available

at https://www.icj-cij.org/case/52 (last accessed Nov. 6, 2023).

64 PAUST, supra note 22.

65 Indus Waters Kishenganga Arbitration, (Pkst. v. IN), Final Award, ICGJ 478 (PCA

2013), Dec. 20, 2013, Permanent Court of Arbitration [PCA].

66 Pulp Mills on the River Uruguay, 2010 I.C.J. 14.

67 Certain Activities Carried Out by Nicaragua in the Border Area, I.C.J. G.L No. 15.

68 Pulp Mills on the River Uruguay, 2010 I.C.J. 14.

69 Id., ¶ 204.

33
 Once an EIA has been conducted and the project commences, what remains for the

concerned State is to continuously monitor the environmental impacts for the duration

of the project, if necessary.70 Thus, the primary obligation to monitor is only imposed on

DRI. However, Replomuté not only monitored the environmental impacts [R,26] but also

supported DRI’s economy, consistent with its NDC [R,15] by establishing a Friendship

Fund [R,23].

In the MOX Plant case, the Court ruled that it is incumbent upon Ireland, the State

alleging the insufficiency of the environmental assessment of the Thermal Oxide

Reprocessing Plant, to establish what Ireland considers to be the applicable law in

conducting an environmental assessment, and that the assessment was indeed carried

out.71

Applying the foregoing, the burden72 is upon Aringuv to prove that a significant

risk exists in the planned oil activities. Aringuv also should prove that the existing EIA is

insufficient which would necessitate the preparation of another EIA. However, Aringuv

failed to adduce, even scant evidence on such.

Moreover, in the Trail Smelter case, the Tribunal opined that even if the operations

of the Smelter may cause damage in the future, it ruled that the operations shall remain

70 Id., ¶ 205.

71 The MOX Plant Case (Ire. v. UK), Order, Request for Provisional Measures, ITLOS Case

No. 10, ICGJ 343 (ITLOS 2001) (Dec. 3).

72 Pulp Mills on the River Uruguay, 2010 I.C.J. 14., ¶ 164.

34
in full force unless and until modified, provided that the same is subject to some control

in order to avoid damage from occurring.73 Stated otherwise, even if the oil activities are

found to cause some damage in the future, States, such as Replomuté, are not obliged to

abandon the planned activities in question.74

II. THE ACTIONS OF REPLOMUTÉ WITH RESPECT TO THE PROPOSED OIL EXTRACTION

ACTIVITIES IN DRI COMPLY WITH CONVENTIONS AND CUSTOMARY INTERNATIONAL

LAW.

Aringuv alleged that the proposed oil activities in DRI’s territory will likely have

a devastating impact on the southern population of Royal Mountain Gorillas [R,27]. It

further alleged that Replomuté has violated its direct responsibility under the CMS and

is indirectly responsible for the breach thereof by DRI which purportedly constitutes an

IWA on the part of DRI [R,29]. These allegations are baseless.

73 Reports of International Arbitral Award, Trail Smelter Case (US v. CA), at 63, 3 R.I.A.A.,

(1938 and 1941), available at https://legal.un.org/riaa/cases/vol_III/1905-1982.pdf (last

accessed Oct. 12, 2023).

74 The Obligation of EIA in the International Jurisprudence and its Impact on the BBNJ

Negotiations by Yan Song, Faculty of International Law, China Foreign Affairs

University, Beijing 100037, China, available at https://www.mdpi.com/2071-

1050/15/1/487 (last accessed Nov. 8, 2023).

35
 A. THE PROPOSED OIL ACTIVITIES WILL NOT RESULT IN SIGNIFICANT TRANSBOUNDARY

HARM.

States are obliged to ensure that activities within their jurisdiction or control will

not result in harm to other States.75 The burden of proving a breach of this obligation lies

on the claimant State or Aringuv, in this case.76

Aringuv must establish based on clear and convincing evidence77 the following

elements: 1) the physical relationship between the oil activities and the damage caused;

2) the severity of such damage; and the 3) transboundary movement of the harmful

effects.78 However, Aringuv failed to establish the existence of any of the elements in its

allegations of transboundary harm against Replomuté [R,27,31].

Aringuv also failed to establish any actual harm nor any direct link between the

alleged harm caused within its territory and the oil activities in DRI. The potential harm

to the habitat of Royal Mountain Gorillas is merely an expression of concern, with no

relative scientific study to stand on [R,21,26,31].

75 International Law Commission, Report of the International Law Commission on the Work of

its Fifty-third Session, U.N. Doc. A/56/10, at 154 (Apr. 23 - June 1 & July 2 - Aug. 10, 2001).

76 Id.

77 Id.

78 XUE HANQIN,TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003).

36
 1. The oil activities are confined within the territory of DRI.

The obligation to prevent significant transboundary harm or minimize the risk

thereof applies only to activities that involve a risk causing “serious consequences” to the

territory of another State.79 Such is not the case here.

Replomuté’s oil activities are strictly confined within the territory of DRI [R,17]. In

particular, the oil is extracted from the national park in DRI and is thereafter transported

through a pipeline to a coastal city in DRI [R,17]. Accordingly, the alleged detrimental

effects of the extraction activities will not transcend to the territory of Aringuv.

The purported harm of the extraction activities to the southern population of the

Royal Mountain Gorillas does not equate to transboundary harm on the part of Aringuv

as such population is “rarely sighted” therein [R,9].

79 International Law Commission, Yearbook of the International Law Commission, 2001, Vol.

II, Part Two (2012).

37
 2. Assuming that transboundary harm exists, Aringuv failed to

establish the threshold of risk.

The threshold of risk requires a level that is deemed “significant” and

“detectable.”80 It evokes the word “peril” which is “grave” and “imminent”81 at a relevant

point in time.

Relatedly, the Trail Smelter case provides that a transboundary harm is significant

if it results in “serious consequence” and the injury is established by “clear and

convincing evidence.”82 Such a threshold was not established in this case.

The assessment of what is “significant” requires factual considerations. 83 It cannot

be based on surmises and conjectures. In essence, the supposed harm must lead to a real

detrimental effect on human health, property, industry, environment, and/or

agriculture, among others, of other States.84 Such an effect must be susceptible to being

measured by factual and objective standards.85

80 International Law Commission, supra note 79.

81 Case Concerning The Gabcikovo-Nagymaros Project, (HU v. Svk.), at 39, 1997, available

at https://www.icj-cij.org/public/files/case-related/92/092-19970925-JUD-01-00-EN.pdf (last

accessed Nov. 7, 2023).

82 Trail Smelter Case, 3 R.I.A.A, at 87.

83 International Law Commission, supra note 79.

84 Id.

85 Id.

38
 Accordingly, any transboundary impact, so long as it has not reached the level of

“significant,” is considered tolerable.86

Aringuv failed to specifically allege, much less prove, the particular harms of the

extraction activities, which have spanned for more than decades, upon the gorillas, their

habitat, and their territory. It likewise failed to precisely assert and substantiate how the

extraction activities affect climate change. The plain assertion of Aringuv that such

activities will likely have a devastating impact on the southern population of the Royal

Mountain Gorillas [R,27] is insufficient.

3. There is no transboundary movement of harmful effects.

Transfer of harm arises when a State suffers the adverse physical effects caused by

another State’s actions.87 Clearly, the oil activities did not introduce any harm to

Aringuv’s territory or even to the Royal Mountain Gorilla population.

B. REPLOMUTÉ’S ACTIONS DO NOT VIOLATE THE CMS.

In 1983, Aringuv, Replomuté, and DRI became parties to the CMS [R,8] — an

international treaty aimed at conserving migratory species and their habitats. 88 Here,

86 International Law Commission, supra note 79.

87 Trail Smelter Case, 3 R.I.A.A., at 1905 ¶ 684; Corfu Channel Case, 1949 I.C.J. 6, at 23;

HANQUIN, supra note 78.

88 Convention on the Conservation of Migratory Species of Wild Animals Art. II(3), signed

1979, U.N.T.S. 1651 [hereinafter CMS].

39
Aringuv argues that Replomuté violated its obligation under CMS [R,30]. This argument

fails to impress.

1. The duties contained in Article III of CMS apply to Range States

only.

Article III (4) of the CMS enumerates the duties of a Range State in the protection

and conservation of migratory species listed under Appendix I thereof.89 However,

Replomuté is not a Range State90 since it is neither a neighboring State of DRI and

Aringuv [R,2] nor an African State [R,3], much less exercise jurisdiction over the range91

of Royal Mountain Gorillas. Evidently, Replomuté has no direct responsibility over the

conservation of Royal Mountain Gorillas under the CMS.

2. Replomuté’s nor DRI’s actions do not constitute ‘taking’.

Article III (5) of the CMS states that Parties that are Range States of a migratory

species listed under Appendix I shall prohibit the taking of such species. 92 Taking is

defined as “taking, hunting, fishing, capturing, harassing, deliberate killing, or

attempting to engage in any such conduct.”93

89 CMS, supra note 88, Art. III(4).

90 Id., Art I (1)(h).

91 Id.

92 Id., Art. III(5).

93 Id., Art. I (i).

40
 While the Royal Mountain Gorillas belong to Appendix I of the CMS [R,9], neither

DRI’s nor Replomuté’s actions are considered 'taking.’ Hence, Lenoir Corporation’s oil

activities have no adverse effects on the southern gorilla population or its habitat.

As a Party to the Gorilla Agreement, [R,9] Aringuv has the obligation to take

proactive measures in the protection and preservation of the endangered population of

the Royal Mountain Gorillas.94 However, it failed to exert any significant effort to comply

with such obligation. Instead, Aringuv erroneously shifts the blame to Replomuté, a non-

Party to the Gorilla Agreement [R,10] nor a Range State [R,2,3], for the former’s issues

and shortcomings in its duty of preservation. [R,26]

Furthermore, Aringuv’s wildlife tourism industry itself [R,2] poses several

negative effects to the Royal Mountain Gorillas such as, but not limited to, human-

induced light and sound, disruption of foraging, disturbance of parental behavior,

unintentional trampling of wildlife, vegetational changes, and soil compaction.95 Aringuv

failed to protect the Royal Mountain Gorillas which is violative of its international

environmental obligations.

94Agreement on the Conservation of Gorillas and their Habitats Art 3(2)(a), signed Apr.

25, 2008, UNTS Code, 45400 [hereinafter Gorilla Agreement].

95 RONDA GREEN & KAREN HIGGINBOTTOM, NEGATIVE EFFECTS OF WILDLIFE TOURISM ON

WILDLIFE, IN WILDLIFE TOURISM RESEARCH REPORT SERIES: NO. 5 (2001).

41
 3. Replomuté is not in violation of its obligations as a non-Range

State under the CMS.

Under the CMS, the direct responsibility of Replomuté only pertains to the

promotion, cooperation, and immediate protection of migratory species included in

Appendix I.96 Aringuv failed to substantiate its allegations that the oil activities will run

counter to such obligations. It failed to present any evidence regarding the matter

[R,29,31].

Notably, prior to the ratification of Aringuv and DRI of the Gorilla Agreement in

2007 [R,9], Lenoir Corporation cooperated with DRI by suspending its operation in DRI

when an Ebola outbreak occurred [R,19]. This is to prevent unwanted transmission and

spread of the disease that will affect both humans and gorillas.97

Moreover, when NGOs raised its concerns [R,21] and General Mina declared his

supposed withdrawal from the concession agreement in light of the Gorilla Agreement

[R,22], Replomuté invoked the mandatory arbitration provision [R,22]. The arbitral

panel’s decision to proceed with the oil activities [R,23] only concludes that the concern

with regard to the impact of the said activity to the gorillas has been rendered nugatory.

96 CMS, supra 88, Article 2.

97 Stuart Butler, The Ebola virus outbreak had an impact on not only humans, it also

affected gorilla populations in the Congo and Uganda, available at

https://geographical.co.uk/wildlife/the-devastating-2014-2016-ebola-outbreak-on-

gorillas-in-west-africa (last accessed Nov. 5, 2023).

42
 Replomuté established a $10 million (USD) Friendship Fund to support economic

development activities in the DRI [R,23] which can be used to promote and support

research relating to migratory species. Replomuté’s actions implicate its high regard with

its obligation under CMS.

The threats to the Royal Mountain Gorillas and its habitat can be attributed to

multiple factors: Ebola outbreak [R,19], civil war and insurgent activities in the area

[R,18], and Aringuv’s mountain gorilla tourism [R,2]. These factors cannot be imputed to

Replomuté but to Aringuv and DRI.

C. REPLOMUTÉ HAS NO INDIRECT RESPONSIBILITY THROUGH ALLEGED COERCION OF

THE DRI.

Aringuv alleged that Replomuté coerced the DRI to commit an IWA [R,29].

Aringuv’s basis is Article 18 of the International Law Commission’s (“ILC”) Draft Articles

on Responsibility of States for Internationally Wrongful Acts (“ARSIWA”). 98 However,

Aringuv’s argument is misplaced.

98 International Law Commission, Draft Articles on responsibility of States for internationally

wrongful act, 2001, Vol. II, Part Two (2012), [hereinafter ARSIWA].

43
 1. ILC’s ARSIWA is not legally binding.

ARSIWA has not yet crystallized into CIL and thus, currently, is a non-binding

instrument.99 While its principles are influential, it did not undergo codification to

become a legally binding instrument.100

Specifically, Article 18 of ARSIWA lacks State practice or legal effect as to its

provision, reflecting its ineffectiveness as a legal fiction that does not represent

actuality.101 Hence, Aringuv’s argument based on ARSIWA [R,29] has no leg to stand on.

Assuming that ARSIWA is legally binding, the same remains inapplicable insofar

as the oil activities are concerned. The prohibition against coercion is confined to cases

99 Cf. Written Comments of Germany and the Netherlands in ‘Responsibility of States for

Internationally wrongful acts. Comments and information received from Governments’

UN Doc A/65/69 (May 14, 2010) at 3 and 5-6.

100 See statement made by the representative of the Russian Federation at the meeting of

the Sixth AG Committee held on Oct. 15, 2019, UN Doc A/C.6/74/SR.13 (Feb. 28, 2020)

at 6 para 36. In terms of legal scholarship, the ‘paradox’ of the absence of an international

convention on the topic of State responsibility is highlighted by P Bodeau-Livinec,

‘Responsibility of States and International Organizations’ in S Chesterman, DM Malone,

S Villalpando, A Ivanovic (eds) The Oxford Handbook of United Nations Treaties (OUP 2019)

599-600.

101 JAMES D. FRY, COERCION, CAUSATION AND THE FICTIONAL ELEMENT OF INDIRECT STATE

RESPONSIBILITY, 40 VANDERBILT L. REV., 611, AT 621.

44
involving the use of armed force.102 It does not encompass mere allegations of attempts

to exert control over one another.103 Hence, Replomuté did not coerce DRI.

2. Replomuté did not coerce DRI to commit an IWA.

Contrary to the allegation of Aringuv, Replomuté did not coerce DRI to violate the

Gorilla Agreement and the CMS [R,29].

In Nicaragua v. USA, the Court explained coercion as one where a State unlawfully

intervenes in matters which another State is permitted to decide freely, through force,

either in the direct form of military action within another State, or in the indirect form of

support for subversive or terrorist armed activities within another State.104 None of these

instances exist in this case.

Furthermore, coercion exists if a conduct of one coercing State forces the will of

the coerced State, giving it no effective choice but to comply with the wishes of the

former.105 At any event, Replomuté did not coerce DRI. Nowhere in the events show that

102 FRY, supra note 101.

103 Id.

104 Military and Parliamentary Activities in and against Nicaragua, Nicaragua Case (Nic.

v. US), I.C.J. G.L. No. 70, available at https://www.icj-cij.org/public/files/case-

related/70/070-19860627-JUD-01-00-EN.pdf (last accessed Nov. 7, 2023).

105 JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSIONS ARTICLES ON STATE

RESPONSIBILITY 152-56 (2002).

45
Replomuté employed force, directly or indirectly, against DRI from the time of entry into

the 1981 DRI-Replomuté agreement [R,17], during the arbitration settlement [R,22,23],

and up until the time the case is brought before the Court for resolution [R,35].

The accusation of Aringuv that Replomuté is responsible for “any” breach by DRI

of the Gorilla Agreement, as the former is coercing the latter to commit an IWA [R,29] is

obviously lacking ascertainment. The use of the word “any” reflects Aringuv’s inability

to pinpoint how the coercion was allegedly committed and what violation of the Gorilla

Agreement constitutes IWA [R,29].

a. Replomuté did not coerce DRI to violate the Gorilla

Agreement and the CMS.

The Gorilla Agreement requires DRI to accord the same strict conservation for

gorillas as provided for under Article III (4) of the CMS.106 The cited article directs DRI to

conserve gorilla habitat and to prevent, reduce, or control factors that are endangering or

are likely to further endanger such species.107

When DRI ratified the Gorilla Agreement in 2007 [R,9], the concession agreement

between DRI and Replomuté had already been in effect for 26 years [R,17]. In fact, in 2009,

DRI permitted the resumption of the oil activities in its territory and the subsequent

construction of the pipeline therein [R,19].

106 Gorilla Agreement, supra note 94, Art 3(2)(a).

107 CMS, supra 88, Art. 3(4).

46
 The continuous operation of the oil activities—amidst the intent of DRI’s new

president to withdraw therefrom—does not constitute coercion, as such matter was upon

the directive and order of the arbitral panel in a mandatory binding arbitration [R,23],

and not Replomuté. DRI voluntarily participated in the arbitration and acquiesced to the

decision of the arbitral panel [R,23]. Therefore, Replomuté did not coerce DRI to violate

the same.

3. The arbitral penalty amounting to $825 million (USD) does not

constitute “colonial extortion.”

Aringuv claims that the arbitral penalty amounting to $825 million (USD) which

the arbitral panel imposed upon DRI [R,23] constitutes “colonial extortion” [R,34]. Such

claim is palpably erroneous.

“Extortion” is a crime that involves extracting money or other assets from a person

through threats or intimidation.108 In extortion, the victim consents to the crime of paying

off the aggressor out of fear of retaliation for not complying.109 The said consent is

obtained in an illegal manner.110

108 Martin G. Weinberg, What Are Types of Extortion & Their Penalties?, available at

Extortion & Penalties | Martin G. Weinberg Attorney at Law (martinweinberglaw.com),

(last accessed Nov. 5, 2023).

109 Id.

110 Id.

47
 Replomuté, a mere party to the arbitration, could not have committed extortion in

relation to the arbitral penalty imposed by the arbitral panel upon DRI [R,22,23]. To state

otherwise is akin to an unfounded and malicious allegation that Replomuté exercised

control and influence over the arbitral panel —a distinct and separate entity from

Replomuté.

The decision promulgated by the arbitral panel which imposed a penalty of $825

million (USD) to DRI [R,23] is in line with the panel’s authority to resolve disputes

between DRI and Replomuté pursuant to the 1981 DRI-Replomuté agreement [R,17].

Remarkably, at its own discretion, Replomuté established a Friendship Fund to aid DRI’s

economy [R,23]. Therefore, the arbitral penalty of $825 million (USD) cannot amount to

colonial extortion.

48
 Conclusion

Replomuté requests the Court to adjudge that: (1) Replomuté has not violated

international law with respect to the preparation of an EIA; and (2) the actions of

Replomuté with respect to the proposed oil activities in the DRI comply with

international law.

Respectfully submitted,

Agents of Respondent

49