412A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE PROTECTION OF BATS AND INTERNATIONAL

TRADE MEASURES

_____________________________________________________________________

THE FEDERAL STATES OF ALDUCRA

APPLICANT

v.

THE REPUBLIC OF RUNBETI

RESPONDENT

MEMORIAL FOR THE APPLICANT

THE 25TH ANNUAL STETSON INTERNATIONAL ENVIRONEMNTAL MOOT

COURT COMPETITION
412A Memorial for the Applicant
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TABLE OF CONTENTS

TABLE OF CONTENTS..............................................................................................................ii
INDEX OF AUTHORITIES........................................................................................................vi
STATEMENT OF JURISDICTION.........................................................................................xii
QUESTIONS PRESENTED......................................................................................................xiii
STATEMENT OF FACTS........................................................................................................xiv
SUMMARY OF ARGUMENTS................................................................................................xv
ARGUMENTS ADVANCED.......................................................................................................1
I. THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH
RESPECT TO ITS WIND FARM...............................................................................................1
A. RUNBETI VIOLATED ITS INTERNATIONAL TREATY OBLIGATIONS
RELATING TO MIGRATORY SPECIES AND THE ENVIRONMENT..........................1
1. Runbeti violated its obligations under the CBD with respect to the Wind Farm.....2
a. Runbeti violated Article 7(c) and 8(l) of the CBD when it failed to conserve
under in-situ conditions......................................................................................................2
i. Runbeti violated its obligation under Article 7(c) of the CBD to classify the
Project as a damaging activity.......................................................................................2
ii. Runbeti violated Article 8(l) of the CBD by failing to manage the relevant
processes of activities in the Project..............................................................................3
b. Runbeti’s construction of the Project is a violation to Article 8(d) of the CBD as
it threatens the bat population in its natural surroundings............................................3
c. Runbeti did not comply with their procedural obligations in conducting an EIA
under Art. 14 in relation to Art. 5.....................................................................................4
i. Runbeti violated Art. 14(a) of the CBD when it failed to conduct an adequate
EIA....................................................................................................................................5

ii. Runbeti violated its duty to cooperate...................................................................6

(1) Runbeti failed to notify and consult with Alducra........................................6
(2) Runbeti failed to meaningfully negotiate with Alducra................................6
2. Runbeti violated the CMS when it failed to comply with CMS Resolutions 7.5 and
11.27.........................................................................................................................................6

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a. Runbeti violated CMS Resolution 7.5........................................................................7

b. Runbeti violated CMS Resolution 11.27....................................................................7
i. Runbeti did not conduct a SEA and the conduct of their EIA was
inappropriate...................................................................................................................8
ii. Runbeti did not undertake any survey and monitoring.......................................8
3. Runbeti violated EUROBATS when it failed to protect and conserve the bat
population................................................................................................................................8
a. Runbeti violated Article III (2) of the EUROBATS when it failed to protect
important sites and feeding areas of the bats from damage and disturbance..............8
b. Runbeti violated Article III (6) of the EUROBATS when it failed to take any
action to safeguard the population of bats.......................................................................9
i. Runbeti’s Wind Farm is a threat to the population of the bat species...............9
ii. Runbeti did not implement post-construction monitoring................................10
iii. Runbeti failed to implement mitigating measures..............................................10
4. Runbeti’s measure in addressing climate change is inconsistent with their
obligations under Multilateral Environmental Agreements [“MEAs”] including the
UNFCCC...............................................................................................................................10
B. RUNBETI VIOLATED CUSTOMARY INTERNATIONAL LAW [“CIL”] WITH
RESPECT TO ITS WIND FARM PROJECT......................................................................12
1. Runbeti violated its customary duty not to cause transboundary harm [“TH”]....12
a. There is a physical relationship and human causation between the Wind Farm
and the bats’ deaths..........................................................................................................12
b. The harm is transboundary and significant............................................................12
2. Runbeti violated the Precautionary Principle [“PP”] in the construction of their
wind farm project.................................................................................................................13
II. ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW CONCERNING ITS
TRADE REGULATIONS FOR TAPAGIUM..........................................................................14
A. ALDCURA DID NOT VIOLATE ITS TREATY OBLIGATIONS WHEN IT
PASSED A STATUTE INSTITUTING REQUIREMENTS RELATED TO THE SALE
OF TAPAGIUM IN ALDUCRA............................................................................................14
1. Alducra did not violate Article VII because the Tapagium Statute does not grant
any advantage to other states in Architerpo......................................................................14
2. Alducra did not violate Article VIII when it taxed tapagium produced from cloned
agaves and required labels on all tapagium.......................................................................14

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a. Alducra did not violate Article VIII (2) when it taxed the sales of tapagium
produced from cloned agaves..........................................................................................15
i. Runbeti’s tapagium are not taxed in excess of those applied to the labelled
domestic products.........................................................................................................15
ii. The tax imposed on the sales of tapagium produced from cloned agaves does
not afford protection to the domestic products..........................................................15
b. Alducra did not violate Article VIII (3) when it imposed a labelling requirement
on tapagium sold in Alducra............................................................................................15
iii. The labeling requirement is applied to like products.........................................16
iv. Aldcura’s standard of a bat-safe label does not discriminate Runbeti.............16
3. In any case, the Tapagium Statute is justified under Article X of ARTA...............17
a. The policy objectives are in line with the enumerated exceptions under Article X
of ARTA.............................................................................................................................17
i. The Tapagium Statute was necessary for protecting public morals.................17
(1) The bats’ welfare falls within the scope of public morality and is a
legitimate public moral concern in Alducra...........................................................17
(2) The regulatory measure is necessary to protect the public’s concern over
the welfare of the bats...............................................................................................18
ii. Alternatively, the Tapagium Statute was necessary for protecting human,
animal or plant life or health.......................................................................................19
(1) The policy objective of Alducra’s Tapagium Statute is for the purpose of
protecting the farmers, bats and agave...................................................................19
(2) The Tapagium Statute is necessary to achieve said objective....................20
iii. The Tapagium Statute relates to the conservation of exhaustible natural
resources........................................................................................................................20
(1) Both the agave and the bats are considered to be an exhaustible natural
resource in need of conservation management.......................................................20
(2) There is a nexus between the Tapagium statute and the policy of
conserving the bats and agave..................................................................................21
iv. There are no other reasonable alternative measures that Alducra could have
pursued in their objective to conserve and protect the bats.....................................21
b. The application of the Tapagium Statute does not constitute an arbitrary and
unjustifiable discrimination.............................................................................................22

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4. Alducra did not violate Article IX because the labeling requirement and tax
measures are only domestic regulations.............................................................................23
B. ALDCURA HAS AN OBLIGATION TO ENACT EFFECTIVE
ENVIRONMENTAL LEGISLATION UNDER INTERNATIONAL LAW.....................24
1. The Tapagium Statute is consistent with Alducra’s obligations under several
multilateral environmental agreements.............................................................................24
2. The Tapagium Statute does not cause unwarranted economic costs to Runbeti....25
PRAYER.......................................................................................................................................27

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Agreement on the Conservation of Populations of European Bats 4 Dec. 1991 22, 23, 24, 39

Convention on the Conservation of Migratory Species of Wild Animals, Jun. 3, 1979,

1651 U.N.T.S. 333. 21, 22, 24

The Convention on Biological Diversity of 5 June 1992, art 8, 1760 U.N.T.S. 69 16, 17, 18

Vienna Convention on the Law of Treaties May 23, 1969, 1155 U.N.T.S.331 15, 25, 27

JUDICIAL DECISIONS

Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Rep.
226 (July 8). 26

Corfu Channel, (U.K. v. Al.), Judgment, Merits, ICJ GL No.1, 1949 ICJ Rep 4, ICGJ
199 (Apr 9). 28

Gabčikovo-Nagymaros Project, (Hung. v Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept.

25). 21

Lake Lanoux Arbitration (Fr. v. Spain), 1957 R. Int’l. Arb. Awards 281 (Nov.16). 20

Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) 1986 I.C.J
14 (June 27) 15

Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgement, 2010 I.C.J. Rep. 14 (Apr.
20) 16, 19, 21, 27

Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect
to Activities in the Area, 2011 ITLOS 17 (Advisory Opinion) (Feb. 01). 27

Southern Bluefin Tuna (N.Z., Aus. v Jpn.), 1999 ITLOS 3 (Aug. 27). 20

The MOX Plant Case (Ir. v. U.K.), 2001 ITLOS 10 (separate opinion of Judge
Wolfrum) 20, 27

Trail Smelter Arbitration (U.S. v. Can.), Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards
1905 (1941). 26, 27

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BOOKS AND TREATISES

JOHN D. ALTRINGHAM, BATS: FROM EVOLUTION TO CONSERVATION 120

(2nd ed. 2011) 18

MARK E. VILLIGE, COMMENTARY ON THE 1969 VIENNA CONVENTION ON

THE LAW OF TREATIES 425 (2009). 25

OLIVIER HONNAY, GENETIC DRIFT, GENETIC DRIFT in ENCYCLOPEDIA OF

ECOLOGY VOL 3 114-117 (2008). 17

PHILIPPE SANDS et al., PRINCIPLES OF INTERNATIONAL ENVIRONEMNTAL

LAW 109 (2012). 21, 40

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4

(2003). 26

ESSAYS, ARTICLES AND JOURNALS

22 U.S.C. § 6032(h) (2001) 31

Cultivating our Futures: FAO/Netherlands Conference on the Multifunctional Character

of Agriculture and Land (Sep. 17, 1999) 39

David G. Lloyd & Daniel J. Schoen, Self- and Cross-Fertilization in Plants. I.

Functional Dimensions, International Journal of Plant Sciences, 153, 358-69, (1992). 34

Demirhan, O., et al., Chromosomal Aberrations in agricultural farmers exposed to

pesticides. Adv Toxicol Toxic Effects 3.1, 015-022 (2019). 34

Edward B. Arnett et al., Annual Report submitted to the Bats and Wind Energy
Cooperative, Effectiveness of changing wind turbine cut-in speed to reduce bat
fatalities at wind facilities (2009). 24

Edward B. Arnett et al., Interim Report, Studies to develop bat fatality search protocols
and evaluate bat interactions with wind turbines in West Virginia and Pennsylvania
(2004) 24

Harry X. Wu, Benefits and risks of using clones in forestry – a review, 34 Scandinavian
Journal of Forest Research, 352-59 (2019) 35

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Hermann Hötker, et al, Impacts on Biodiversity of Exploitation of Renewable Energy

Sources: The Example of Birds and Bats, 14-33, (2006). 17

Joahne Scott, On Kith and Kin (And Crustaceans): Trade and Environment in the EU
and WTO, in THE EU, THE WTO, AND THE NAFTA: TOWARDS A COMMON
LAW OF INTERNATIONAL TRADE? 139 30

Lauren Arnold and Kevin Hanna, Best Practices in Environmental Assessment, (2017)
(case study, University of British Columbia). 19

Lyle Glowka, A Guide to the Convention on Biological Diversity, 3 J. INT. WILDL. LAW
POLICY 19, 22 (1994) 17, 18

M.Teague O’Mara et al., Common noctules exploit low levels of the aerosphere, 6 R.
Soc. open sci. (2019). 27

Owen, Henry R., "CLONING OF PLANTS" (2002). Faculty Research & Creative
Activity. 145. https://thekeep.eiu.edu/bio_fac/145) 40

Steve Charnovitz, The law of environmental PPMs in the WTO: debunking the myth of
illegality, 71 YJIL 59-110, (2002) 37

U.N. AND OTHER INTERNATIONAL DOCUMENTS

Appellate Body Report, China — Measures Affecting Trading Rights and Distribution
Services for Certain Publications and Audiovisual Entertainment Products , ¶239,
WTO WT/DS363/AB/R (Dec. 21, 2009) 32

Appellate Body Report, Colombia — Measures Relating to the Importation of Textiles,

Apparel and Footwear, ¶5.105, WTO. WT/DS461/AB/R (adopted June 22, 2016) 32

Appellate Body Report, Indonesia — Importation of Horticultural Products, Animals

and Animal Products, ¶5.96, WTO. WT/DS477/AB/R (adopted Nov. 22, 2017) 31

Appellate Body Report, United States — Import Prohibition of Certain Shrimp and
Shrimp Products, ¶128, WTO WT/DS58/AB/R (Dec. 12, 1998). 35

Appellate Body Report, United States - Standards for Reformulated and Conventional
Gasoline, p.16, WTO WT/DS2/AB/R (Apr. 29, 1996). 35

CBD Decision VI/7, Identification, monitoring, indicators and assessments,

UNEP/CBD/COP/6/7 (2002) Annex. 19, 24

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Communication from the European Union, United States — Certain Country of Origin
Labelling (COOL) Requirements, ¶256, p.113, WTO WT/DS384/39 (Dec. 11, 2015) 31

Draft Articles on the Law of Treaties with commentaries 1996 25, 27

Panel Report, Argentina— Measures Affecting the Export of Bovine Hides and the
Import of Finished Leather, ¶ 11.243, WTO Doc. WT/DS155/12 (adopted Feb. 16,
2001) 29

Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, ¶226-229, WTO
WT/DS1332/R (adopted Dec. 17, 2007) 37

Panel Report, European Communities — Measures Affecting Asbestos and Products

Containing Asbestos, ¶162, WTO. WT/DS135/R (adopted Apr. 5, 2001) 33

Panel Report, European Communities — Regime for the Importation, Sale and
Distribution of Bananas, ¶7.239, WTO WT/DS27/R/USA (May 22, 1997). 28

Panel Report, India — Quantitative Restrictions on Imports of Agricultural, Textile and

Industrial Products, ¶5.128, WTO. WT/DS90/R (adopted Sep. 22, 1999). 38

Panel Report, Philippines — Taxes on Distilled Spirits, ¶7.34-7.37, WTO

WT/DS396/R;WT/DS403/R (Aug. 15, 2011) 30

Panel Reports, European Communities — Measures Prohibiting the Importation and

Marketing of Seal Products, ¶7.632, WTO. WT/DS400/R;WT/DS401/R (adopted
June 16, 2014) 32

Report of the International Law Commission, Draft Articles on Prevention of

Transboundary Harm from Hazardous Activities, art. 7 cmt. 8, U.N. GAOR, U.N.
Doc.A/56/10., (2001) 19

Report of the International Law Commission, Draft Articles on Responsibility of States

for Internationally Wrongfully Acts, U.N. GAOR, art. 4,5,8 and 11, U.N. Doc.
A/56/10 (2001) 15

Report of the Panel, Thailand—Restrictions on Importation of and Internal Taxes on

Cigarettes, ¶23, DS10/R (Oct. 5, 1990) 36

Rio Declaration on Environment and Development, 1992 31 ILM 874 (June 13) 27, 39, 40

Secratariat of the Convention on Biological Diversity, Voluntary Guidelines for the

Design and Effective Implementation of Ecosystem-Based Approaches to Climate

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Change Adaptation and Disaster Risk Reduction and Supplementary Information,

CBD Technical Series No 93 (2019). 25, 26

The Secretary-General, Report on the Gaps in international environmental law and

environment-related instruments, ¶83, U.N. Doc. A/73/419 (Nov. 10, 2018). 25

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). 26

UNEP/CBD/SBSTTA/2/3 (9 August 1996). 16, 19, 24

MISCELLANEOUS

Andrew Stuart - NATURE NOTES: For Endangered Long-Nosed Bat, An Intimate

Link to Agave Is Threatened, https://marfapublicradio.org/blog/nature-notes/for-
endangered-long-nosed-bat-an-intimate-link-to-agave-is-threatened/ 33

Bats Conservation Trust, https://www.bats.org.uk/about-bats/why-bats-matter/bats-as-

pollinators 34

Economic Instruments For Environmental Management And Sustainable Development

for the United Nations Environment Programme's Consultative Expert Group
Meeting on the Use and Application of Economic Policy Instruments for
Environmental Management and Sustainable Development Environmental Economics
(December 1994) (prepared by Theodore Panayotou University) 41

Food and Agricultural Organization of the United Nations, Impacts of farming

intensification on wildlife and ecosystem health,
http://www.fao.org/ag/againfo/home/en/news_archive/2012_Impacts_of_farming_int
ensification_on_wildlife.html (last accessed 14 October 2020). 39

Gwen Pearson – Tequila, Booze, and Bats, https://www.wired.com/2014/06/tequila-

booze-and-bats/ 33

Kathleen Wilcox, Can Bats Save Tequila?, October 12, 2017,

https://vinepair.com/articles/tequila-sustainable-bat-friendly.html 33

Lesser long-nosed bat, https://www.nationalgeographic.com/animals/mammals/l/lesser-

long-nosed-bat/#:~:text=Threats%20to%20survival,in%20some%20cases%20killing
%20them. 35

Long-nosed Bats and Agaves: The Tequila Connection,

https://www.batcon.org/article/long-nosed-bats-and-agaves-the-tequila-connection/. 33

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Medellín, R. 2016. Leptonycteris yerbabuenae. The IUCN Red List of Threatened

Species 2016: e.T136659A21988965. https://dx.doi.org/10.2305/IUCN.UK.2016-
1.RLTS.T136659A21988965.en. Downloaded on 09 November 2020. 35

National Academy of Sciences (US), Cloning: Definitions And Applications. National

Academies Press (US) Available from:
https://www.ncbi.nlm.nih.gov/books/NBK223960/ 34

Review of Implementation of the Rio Principles p.74. (prepared by Stakeholder Forum

for a Sustainable Future).
https://sustainabledevelopment.un.org/content/documents/1127rioprinciples.pdf (last
accessed on 10 November 2020). 39

The future of tequila: How clones, bats and biodiversity will help agave survive,
https://www.dallasnews.com/food/drinks/2019/10/21/the-future-of-tequila-how-
clones-bats-and biodiversity-will-help-agave-survive/. 34

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STATEMENT OF JURISDICTION

The Federal States of Alducra and the Republic of Runbeti hereby submit the present

dispute pursuant to Article 40(1) of the Statute of the International Court of Justice (“ICJ”) and

in accordance with Article XV of the Architerpo Regional Trade Agreement. The parties signed

a special agreement to submit their differences regarding questions relating to the Protection of

Bats and International Trade Measures, signed at Mexico City, Mexico, on the 22 June 2020.

Both Parties undertake to accept any Judgment of the Court as final and binding upon them and

shall execute it in its entirety and in good faith.

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QUESTIONS PRESENTED

I. Whether Runbeti violated international law with respect to its wind farm project.

II. Whether Alducra violated international law with respect to its trade measures for

tapagium.

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STATEMENT OF FACTS

ALDUCRA AND RUNBETI

Alducra and Runbeti are neighboring States in Architerpo. Both states are known for

producing tapagium from agave and being a home to bat species including the Royal Noctule

and Architerpan long-nosed bat. They are parties to several environmental and trade agreements,

including the following: Convention on Biological Diversity [“CBD”], Convention on the

Conservation of Migratory Species [“CMS”], Agreement on the Conservation of Populations of

European Bats [“EUROBATS”], United Nations Framework Convention on Climate Change

[“UNFCCC”] and Architerpo Regional Trade Agreement [“ARTA”].

THE RISE OF THE WIND FARMS AND THE FALL OF THE BATS

Runbeti implemented a subsidy program for alternative energy and approved a large

multi-phase wind farm project [the “Wind Farm”]. The Wind Farm has killed numerous bats and

placed bat species in both states in danger of extinction.

THE BATS AND THE AGAVE

Architerpan long-nosed bats feed on and pollinate agave. Recently, farmers in both States

began using harmful farming practices (e.g., cloning agaves) to increase tapagium production.

These practices have endangered the bats, agave and the farmers. Only Alducra has been

proactive in addressing the danger posed by the practices and has passed two statutes instituting

requirements designed to protect the bats, agave and farmers.

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SUMMARY OF ARGUMENTS

Runbeti violated international law with respect to the Wind Farm. Runbeti violated its

treaty obligations relating to the migratory species and the environment. First, Runbeti violated

its substantial and procedural obligations under the CBD. Second, it violated its obligations

under CMS by not complying with CMS Resolutions 7.5 and 11.27. Third, it violated Articles III

(2) and Article III (6) of the EUROBATS. Significantly, Runbeti cannot use its compliance with

the UNFCCC to justify the foregoing violations of treaty obligations. Finally, Runbeti also

violated its customary duty not to cause transboundary harm and the precautionary principle.

II

Alducra did not violate international law concerning its regulations for tapagium.

Alducra’s statute imposing a tax measure and labeling requirement [the “Tapagium Statute”] is

consistent with its obligations under ARTA. In any case, the Tapagium Statute is justified under

Article X of the ARTA. Alducra did not violate Article IX of the ARTA because the Tapagium

Statute is not a quantitative restriction.

Finally, Aldcura did not wrongfully impose its environmental policy agenda on Runbeti

when it passed the Tapagium Statute.

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ARGUMENTS ADVANCED

I. THE REPUBLIC OF RUNBETI VIOLATED

INTERNATIONAL LAW WITH RESPECT TO ITS WIND
FARM.
Runbeti is responsible for any breach of international obligations relating to the Wind

Farm’s construction because PECO’s acts are attributable 1 to Runbeti. Here, Runbeti subsidized 2

and effectively controlled3 PECO’s operations.4 In the following sections Alducra submits that:

(A) Runbeti violated its international obligations relating to migratory species and the

environment; (B) Runbeti violated customary international law with respect to its wind farm

project.

A. RUNBETI VIOLATED ITS INTERNATIONAL TREATY OBLIGATIONS

RELATING TO MIGRATORY SPECIES AND THE ENVIRONMENT.

States parties to the CBD, CMS, and EUROBATS are bound to comply with their

obligations in good faith.5 Here, Runbeti failed to comply with its obligations under these

Conventions. The discussion under Part I shall refer particularly to the Royal Noctules. As

migratory species, Royal Noctules are primarily at risk from the Wind Farm.

1
Report of the International Law Commission, Draft Articles on Responsibility of States for
Internationally
Wrongfully Acts, U.N. GAOR, art. 4,5,8 and 11, U.N. Doc. A/56/10 (2001), [hereinafter
“ARSIWA”].
2
Record, ¶16 [hereinafter “R”].
3
Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.) 1986 I.C.J 14 (June 27),
¶115.
4
R¶17, ¶19, ¶20, ¶23.
5
Vienna Convention on the Law of Treaties May 23, 1969, 1155 U.N.T.S.331, art 26 [hereinafter
“VCLT”].

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1. Runbeti violated its obligations under the CBD with respect to the Wind
Farm.

Runbeti’s construction of the Wind Farm in a critical area is a violation to its obligations

to (a) conserve under in-situ conditions; (b) conduct an adequate Environmental Impact

Assessment [“EIA”]; and (c) cooperate under CBD.6

a. Runbeti violated Article 7(c) and 8(l) of the CBD when it failed to
conserve under in-situ conditions.

Taking Articles 7(c) and 8(l) together, in-situ conservation requires the (1) classification

of a damaging activity and monitoring its effects; and (2) managing its significant adverse effects

on biological diversity. Here, Runbeti failed to classify the Wind Farm as a damaging activity;

consequently, failing to manage the relevant processes of activities in the Wind Farm.

i. Runbeti violated its obligation under Article 7(c) of the CBD to classify
the Project as a damaging activity.

The classification of a damaging activity happens after the authorization process for the

activity.7 An activity is damaging if it causes a sustained and continuing decline in the population

of a species8 through increasing mortality or decreasing reproductive success,”9 eventually

leading to extinction.10

6
The Convention on Biological Diversity of 5 June 1992, art 8, 1760 U.N.T.S. 69, hereinafter [“CBD”].
7
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgement, 2010 I.C.J. Rep. 14 (Apr. 20) [hereinafter
“Pulp
Mills”].
8
UNEP/CBD/SBSTTA/2/3 (9 August 1996).
9
Id.
10
Id.

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Generally, wind farms are recognized as harmful to bats as it causes changes in bats’

distribution, habitat loss, and collision. 11 Despite knowing their damaging nature, 12 Runbeti

authorized the Wind Farm’s construction along the bats’ migration route. Thus, Runbeti’s

authorization of the Wind Farm is a violation of its obligation to classify under CBD.

ii. Runbeti violated Article 8(l) of the CBD by failing to manage the
relevant processes of activities in the Project.

CBD requires the implementation of an adaptive management plan in managing

damaging activities.13 This entails the mitigation of negative impacts resulting from the various

processes of construction and management of a project.14 Runbeti declined to implement any

mitigation measures, as shown in the record.15 Runbeti’s refusal to mitigate the Wind Farm’s

damage is a violation to its obligation to manage the relevant processes of a damaging activity.

b. Runbeti’s construction of the Project is a violation to Article 8(d) of the

CBD as it threatens the bat population in its natural surroundings.

Article 8 (d) requires each party to promote species protection to maintain viable

population.16 A population is viable if 95% of its population persists over 100 years. 17

11
Hermann Hötker, et al, Impacts on Biodiversity of Exploitation of Renewable Energy Sources:
The Example of Birds and Bats, 14-33, (2006).
12
R¶18.
13
Lyle Glowka, A Guide to the Convention on Biological Diversity, 3 J. INT. WILDL. LAW POLICY 19, 22
(1994).
14
CBD Handbook.
15
R¶23.
16
R¶18.
17
OLIVIER HONNAY, GENETIC DRIFT, GENETIC DRIFT in ENCYCLOPEDIA OF ECOLOGY
VOL 3 114-117 (2008).

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Prohibition on activities (i.e. construction and drainage) is a way of maintaining a species’ viable

population in its natural surroundings.18

Instead of prohibiting, Runbeti approved the Wind Farm’s construction on the bats’

natural surroundings,19 resulting in the deaths of Royal Noctules near the wind turbines within

the first two years of the Wind Farm’s operation. 20 Among these dead bats, there is a substantial

likelihood that most of them are the females since female migrate more. 21 The increasing number

of deaths22 exceeds the number of offspring reproduced annually. 23 Such disproportionality,

coupled with the fact that they are vulnerable species affects the sustainability of the bat

population.

By its approval, Runbeti failed to maintain the bat’s viable population and even hastened

their population loss and made replenishment difficult.

c. Runbeti did not comply with their procedural obligations in conducting

an EIA under Art. 14 in relation to Art. 5.

States Parties are required to: (1) follow the appropriate procedures in conducting an EIA

to,24 and 2) to cooperate with other States.25

18
Supra, n.13.
19
Caroline Moussy et al., Bat movements and genetic structure, 43, Mamm. Rev., 183-195 (2013).
20
R¶21.
21
Supra, n.19.
22
Ibid.
23
JOHN D. ALTRINGHAM, BATS: FROM EVOLUTION TO CONSERVATION 120 (2nd ed. 2011).
24
CBD, art. 14a.
25
CBD, art. 5.

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i. Runbeti violated Art. 14(a) of the CBD when it failed to conduct an

adequate EIA.

In Pulp Mills on the River Uruguay (Argentina v. Uruguay),26 it was ruled that a project's

nature, magnitude, and likely adverse impact on the environment should be taken into

consideration in the making of an EIA to fully evaluate the risk 27. This necessitates the usage of

the best available evidence28 as basis in proceeding with the project,29 the observance of due

diligence in choosing the location,30 the selection of an alternative site in mitigating adverse

impacts,31 the continuous monitoring of its effects,32 and the employment of an exit strategy

when necessary.33

Here, Runbeti did not exercise due diligence since they constructed their wind farm in a

known migration route, feeding and roosting areas, and commuting routes.34 The Record did not

show that Runbeti even considered any alternative locations. Moreover, they only conducted an

26
Supra, n.8.
27
Report of the International Law Commission, Draft Articles on Prevention of Transboundary
Harm from Hazardous Activities, art. 7 cmt. 8, U.N. GAOR, U.N. Doc.A/56/10., (2001)
[hereinafter “Draft Articles on TH”].
28
R¶14.
29
Lauren Arnold and Kevin Hanna, Best Practices in Environmental Assessment, (2017) (case study,
University of British Columbia).
30
Pulp Mills¶9.
31
CBD Decision VI/7, Identification, monitoring, indicators and assessments, UNEP/CBD/COP/6/7
(2002)
Annex.
32
Pulp Mills, ¶205.
33
Supra. n.31.
34
R¶17.

5
412A Memorial for the Applicant
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EIA prior to the first phase35 despite having four phases in their construction.36 Runbeti did not

even monitor at the outset, let alone continuously monitor post-construction. Hence, the conduct

of the EIA was inadequate.

iii. Runbeti violated its duty to cooperate.

(1) Runbeti failed to notify and consult with Alducra.

State cooperation encompasses: (1) notification and consultation, in good faith37, with

other States on activities likely to imperil other States’ biodiversity; and (2) disclosure of all

necessary information about a potentially harmful activity to potentially affected States. Here,

Runbeti neither consulted with Alducra nor provided pertinent information about the damaging

nature of the Project.38

(2) Runbeti failed to meaningfully negotiate with Alducra.

Cooperation39 entails meaningful negotiations.40 Here, Runbeti had approximately two

years to coordinate with Alducra in enacting mitigating measures41 but did not do so.42 Runbeti

even consistently refused Alducra’s requests43 to implement mitigation measures.

35
R¶19.
36
R¶17.
37
 Lake Lanoux Arbitration (Fr. v. Spain), 1957 R. Int’l. Arb. Awards 281 (Nov.16).
38
R¶23.
39
The MOX Plant Case (Ir. v. U.K.), 2001 ITLOS 10 (separate opinion of Judge Wolfrum)
40
Southern Bluefin Tuna (N.Z., Aus. v Jpn.), 1999 ITLOS 3 (Aug. 27).
41
R¶20.
42
R¶23.
43
Id.

6
412A Memorial for the Applicant
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2. Runbeti violated the CMS when it failed to comply with CMS Resolutions 7.5
and 11.27.

Resolutions of the Conference of Parties of the CMS and EUROBATS are authoritative

interpretations of the obligations in the said treaties. 44 Moreover, compliance in good faith with

the obligations in the CMS and EUROBATS involves the creation of measures in accordance

with the Resolutions to realize the purpose of the treaties. 45 Here, Runbeti violated the CMS

when they did not comply with the recommendations under CMS Resolutions 7.5 and 11.27.

d. Runbeti violated CMS Resolution 7.5

Parties are obligated to (1) identify areas where migratory species are vulnerable to wind

turbines;46 (2) continuously monitor the impact of wind turbines on affected species; 47 and (3)

observe the precautionary principle.48 Here, the Record does not show that Runbeti implemented

any measures to identify the areas, monitor the Wind Farm’s impacts to bats in that area, and

observe the precautionary principle [See also Part I.B.2].49

e. Runbeti violated CMS Resolution 11.27.

Parties are obliged to undertake appropriate: (1) Strategic Environment Assessment

[“SEA”] and Environmental Impact Assessments [“EIA”] procedures in planning the use of

renewable energy technologies and choosing the location of the same; 50 and (2) survey and

44
PHILIPPE SANDS et al., PRINCIPLES OF INTERNATIONAL ENVIRONEMNTAL LAW 109
(2012).
45
Gabčikovo-Nagymaros Project, (Hung. v Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25).
46
Convention on the Conservation of Migratory Species of Wild Animals, Jun. 3, 1979, 1651
U.N.T.S. 333. Resolution 7.5 ¶1a [hereinafter “CMS”].
47
CMS Resolution 7.5 ¶1b.
48
Supra, n.30.
49
See part [I.B.2].
50
CMS Resolution 11.27 ¶2.1.

7
412A Memorial for the Applicant
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monitor, before and after deployment, and identify the long-term and short-term impacts of

deployed renewable energy technologies on migratory species and their habitats.51

i. Runbeti did not conduct a SEA and the conduct of their EIA was
inappropriate.

The record is silent as to Runbeti’s conduct of a SEA before constructing the Wind Farm.

While Runbeti may have conducted an EIA, the same was inadequate [See Part I.A.1.c., supra].

iv. Runbeti did not undertake any survey and monitoring.

As discussed in Part I.A.1.c., supra, Runbeti did not implement survey and monitoring

measures throughout the construction of the Wind Farm. Consequently, Runbeti failed to assess

the short-term and long-term impacts of their Wind Farm.

2. Runbeti violated EUROBATS when it failed to protect and conserve the bat
population.

CMS endeavors Range State Parties of migratory species listed in Appendix II, to

conclude AGREEMENTS52 which aim to restore the favorable conservation status of the

concerned migratory species.53 EUROBATS is an agreement within the spirit of CMS, 54 which

aims to conserve and protect the population and habitats of the bat population. Here, Runbeti did

not comply with its obligations as Range State under EUROBATS.

51
CMS Resolution 11.27 ¶2.2.
52
CMS art. IV(3).
53
CMS art. V(1).
54
Agreement on the Conservation of Populations of European Bats 4 Dec. 1991 art. II(1) [hereinafter
“EUROBATS”].

8
412A Memorial for the Applicant
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a. Runbeti violated Article III (2) of the EUROBATS when it failed to

protect important sites and feeding areas of the bats from damage and
disturbance.

Parties are required to identify and protect important sites and feeding areas of the bats

from damage or disturbance. Range States to any bat population are discouraged from making

wind energy developments from areas in a special focus on bat protection. 55 Here, Runbeti knew

that the Wind Farm’s location is along the bat’s migration route, roosting and feeding areas. 56

Yet, Runbeti failed to identify such areas as important for the bat conservation and protection. 57

Instead of excluding them, Runbeti even approved PECO’s choice of including these areas in the

project.58

b. Runbeti violated Article III (6) of the EUROBATS when it failed to take
any action to safeguard the population of bats.

EUROBATS Resolution 8.4 sets out recommendations in order for States Parties to

comply with Article III (6) of EUROBATS.59 Here, Runbeti failed to safeguard the bat

population by refusing implement monitoring and mitigating measures, as required.

i. Runbeti’s Wind Farm is a threat to the population of the bat species.

Considering the low fecundity60 and the vulnerability61 of the bats, 593 ensuing deaths

from the Wind Farm is already a significant loss to the bats’ population.62

55
EUROBATS Resolution 8.4, ¶3.
56
R¶17.
57
R¶19.
58
Id.
59
EUROBATS, A Guide to the Implementation of the Agreement on the Conservation of the
Populations of European Bats, version 2, 18 (2019).
60
CMS Resolution 11.27, ¶3.1.
61
UNEP/CBD/SBSTTA/2/3 (9 August 1996).
62
See Part [I.A.1.b], supra.

9
412A Memorial for the Applicant
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v. Runbeti did not implement post-construction monitoring.

The undertaking of pre- and post-construction assessment and mortality rate assessment 63

are encouraged to ensure that state projects do not threaten bat population. As discussed in Part

I.A.1.c, supra, Runbeti did not conduct any of the assessments.

vi. Runbeti failed to implement mitigating measures.

Parties are obliged to implement mitigating measures, viz.: blade feathering, installing

higher cut-in wind speeds, or shutting down the turbines temporarily 64 in preventing or

mitigating the wind turbines’ threat to migratory species.65 A feathered turbine and a change in

cut-in wind speeds significantly reduced the bat mortality rate within the area of the wind farm. 66

Despite the knowledge of the Wind Farm’s threats to the bats’ population, 67 Runbeti declined to

implement any mitigating measures.68

3. Runbeti’s measure in addressing climate change is inconsistent with their

obligations under Multilateral Environmental Agreements [“MEAs”] including the
UNFCCC.

Runbeti cannot comply with the Paris Agreement under UNFCCC while also violating

other international environmental obligations. Under the principle of pacta sunt servanda, all

international obligations are binding and must be performed in good faith. 69 Compliance must be
63
Supra n.31, ¶7.
64
EUROBATS Resolution 8.4, ¶13.
65
Edward B. Arnett et al., Annual Report submitted to the Bats and Wind Energy Cooperative,
Effectiveness of changing wind turbine cut-in speed to reduce bat fatalities at wind facilities
(2009).
66
Edward B. Arnett et al., Interim Report, Studies to develop bat fatality search protocols and
evaluate bat interactions with wind turbines in West Virginia and Pennsylvania (2004).
67
R¶18.
68
R¶20.
69
VCLT, art. 26; Draft Articles on the Law of Treaties with commentaries 1996 art. 23, pp. 210-211.

10
412A Memorial for the Applicant
_________________________________________________________________________________

‘honest, fair and reasonable,’70 and treaties must be interpreted in the context in which they were

intended.71 Thus, justifying violations of treaties in the guise of complying with another treaty

contradicts good faith.

Notably, Runbeti can perform their obligations under the Paris Agreement without

violating CBD, CMS and EUROBATS. Runbeti should have incorporated the guidelines

provided to create cross-cutting approaches that can address numerous agreements72 (e.g. sharing

scientific information in order to employ best practices, 73 integrating ecosystem and biodiversity-

based strategies to reduce vulnerability against climate change and increase the resilience of

ecosystems,74 and etc.). Here, Runbeti did not implement any of the foregoing measures; instead,

it unilaterally pursued the Wind Farm in bad faith.

70
MARK E. VILLIGE, COMMENTARY ON THE 1969 VIENNA CONVENTION ON THE LAW
OF TREATIES 425 (2009).
71
VCLT, art. 31.
72
Secratariat of the Convention on Biological Diversity, Voluntary Guidelines for the Design and
Effective Implementation of Ecosystem-Based Approaches to Climate Change Adaptation and
Disaster Risk Reduction and Supplementary Information, CBD Technical Series No 93 (2019).
73
The Secretary-General, Report on the Gaps in international environmental law and environment-
related instruments, ¶83, U.N. Doc. A/73/419 (Nov. 10, 2018).
74
Supra, n.72.

11
412A Memorial for the Applicant
_________________________________________________________________________________

B. RUNBETI VIOLATED CUSTOMARY INTERNATIONAL LAW [“CIL”]

WITH RESPECT TO ITS WIND FARM PROJECT.
3. Runbeti violated its customary duty not to cause transboundary harm
[“TH”].

The duty not to cause TH 75 is a recognized customary duty. 76 It is breached if there is: (a)

a physical relationship and human causation; and (b) the transboundary harm is significant. 77 All

elements are present in this case.

a. There is a physical relationship and human causation between the Wind

Farm and the bats’ deaths.

Physical relationship and human causation must be clearly and convincingly

established.78 Runbeti’s construction of the Wind Farm along sites important to bats is a human

activity that directly caused the deaths of bats as established in Part [I.A.1.b], supra.

b. The harm is transboundary and significant.

In Mox Plant, TH was defined as the movement of the negative impacts of an activity

from one jurisdiction to another.79 Harm encompasses injury to persons, property, or the

environment.80 In Trail Smelter, significance refers to “serious consequences.”81 Royal Noctules

75
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).
76
Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Rep. 226 (July 8).
77
XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003).
78
Trail Smelter Arbitration (U.S. v. Can.), Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941).
79
Supra, n.39.
80
Draft Articles on TH, art. 2 ¶4.
81
Supra, n.77.

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412A Memorial for the Applicant
_________________________________________________________________________________

is a migratory species82 and a shared resource between83 ranging from Runbeti to Alducra.84

Thus, any harm on the bats in Runbeti is detrimental to the bats’ population 85 in Alducra and

Architerpo. Further, the depletion of the bat’s population harms the environment because

indicator species, like Royal Noctules, are vital to Architerpo’s flora and fauna.86

2. Runbeti violated the Precautionary Principle [“PP”] in the construction of

their wind farm project.

The PP 87 has attained the status of CIL.88 Under PP, scientific uncertainty does not justify

the delay in postponing the implementation of protective measures where there are threats of

serious or irreversible damage.89 The Wind Farm posed a significant threat to the environment. 90

Even assuming that there is a lack of certainty as to the Wind Farm’s impacts on the bats,

Runbeti was nevertheless obliged to take precautionary measures or shut down the project

completely. Requiring definitive proof of a causal link91 and the environmental damage before

taking action would only result to further damage.

82
R¶14.
83
Alejandra Mancilla, Shared Sovereignty over Migratory Natural Resources, 22 Res Publica, 21–35
(2016).
84
M.Teague O’Mara et al., Common noctules exploit low levels of the aerosphere, 6 R. Soc. open sci.
(2019).
85
See Parts[I.A.1.b] and [I.B.1.b].
86
R¶14.
87
 Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to
Activities in the Area, 2011 ITLOS 17 (Advisory Opinion) (Feb. 01).
88
Supra, n.7; VCLT Preamble art.2.2.
89
Principle 15, Rio Declaration on Environment and Development, 1992 31 ILM 874 (June 13)
[hereinafter “Rio Declaration”].
90
See Part [I.A.1.b].
91
Corfu Channel, (U.K. v. Al.), Judgment, Merits, ICJ GL No.1, 1949 ICJ Rep 4, ICGJ 199 (Apr 9).

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 412A Memorial for the Applicant
_________________________________________________________________________________

II. ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW

CONCERNING ITS TRADE REGULATIONS FOR TAPAGIUM.
A. ALDCURA DID NOT VIOLATE ITS TREATY OBLIGATIONS WHEN IT
PASSED A STATUTE INSTITUTING REQUIREMENTS RELATED TO THE
SALE OF TAPAGIUM IN ALDUCRA.

Alducra did not violate its treaty obligations because its Tapagium Statute — which

applied a 20% tax on the sales of tapagium produced from unsafe farming (e.g., from clone

agaves) and a bat-safe/not bat-safe labeling requirement — is consistent with the general and

specific duties under ARTA92. In any case, the Tapagium Statute is justified under Article X of

the ARTA.

1. Alducra did not violate Article VII because the Tapagium Statute does not
grant any advantage to other states in Architerpo.

In EC—Bananas III, the Panel interpreted the Most Favored Nation Clause as covering

“any favorable import opportunities or condition affecting the commercial relationship between

products of different origins”.93 The case at bar does not call for the application of the MFN

clause because only Runbeti and Alducra produce tapagium in Architerpo.94 Therefore, no other

advantage is being given or can be given to any country relating to tapagium.

2. Alducra did not violate Article VIII when it taxed tapagium produced from
cloned agaves and required labels on all tapagium.

The Tapagium Statute complies with its national treatment obligation because the tax

measure and labeling requirement are applied evenly to like products.

92
Agreement on the Regional Trade Agreement, Record [hereinafter “ARTA”]
93
Panel Report, European Communities — Regime for the Importation, Sale and Distribution of
Bananas, ¶7.239, WTO WT/DS27/R/USA (May 22, 1997).
94
R¶11.

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412A Memorial for the Applicant
_________________________________________________________________________________

a. Alducra did not violate Article VIII (2) when it taxed the sales of
tapagium produced from cloned agaves.

Alducra’s tax measure did not violate Article VIII (2) because it does not protect

domestic production95 and the foreign products are not taxed in excess of the domestic

products.96

i. Runbeti’s tapagium are not taxed in excess of those applied to the

labelled domestic products.

A discriminatory tax measure is one that imposes a heavier tax burden on the imported

products than on the domestic counterparts. 97 Here, the statute similarly taxes all tapagium

sourced from cloned agave, regardless of origin. Runbeti’s tapagium are not the sole subjects of

the tax measure since non-compliant tapagium from Alducra, if any, would also be taxed at the

same rate.

vii. The tax imposed on the sales of tapagium produced from cloned agaves
does not afford protection to the domestic products.

Consequently, the tax measure does not protect domestic products from foreign

competition. Any domestic tapagium, if sourced from cloned agave, would be similarly taxed.

Further, given the similar treatment, it is difficult to see how the tax does would alter the market

share of imported tapagium vis-à-vis domestic tapagium.

95
Art. VIII(1), ARTA.
96
Art. VIII(2), ARTA.
97
Panel Report, Argentina— Measures Affecting the Export of Bovine Hides and the Import of Finished
Leather, ¶ 11.243, WTO Doc. WT/DS155/12 (adopted Feb. 16, 2001).

15
412A Memorial for the Applicant
_________________________________________________________________________________

b. Alducra did not violate Article VIII (3) when it imposed a labelling
requirement on tapagium sold in Alducra.

Alducra’s labeling requirement is not discriminatory since the same standard for a bat-

safe label is applied to all tapagium sold in Alducra, whether produced domestically or in

Runbeti.

ii. The labeling requirement is applied to like products.

In Philippines—Distilled Spirits, the likeness analysis only focuses on the physical

qualities and characteristics of the final products.98 In this case, the issue of “likeness” is not

disputed since the regulation applies to a single product, i.e., tapagium. Imported and domestic

tapagium are “alike” since they are essentially the same product and share the same

characteristics.

viii. Aldcura’s standard of a bat-safe label does not discriminate Runbeti.

A labeling requirement based on a manner of production standard is considered valid

because it is objective and non-trade restrictive.99 In contrast, labeling schemes are

discriminatory if the standard imposes varying product characteristics based on country of

origin.100 Alducra’s labeling requirement is founded on a valid “how-produced” standard because

98
Panel Report, Philippines — Taxes on Distilled Spirits, ¶7.34-7.37, WTO
WT/DS396/R;WT/DS403/R (Aug. 15, 2011).
99
Joahne Scott, On Kith and Kin (And Crustaceans): Trade and Environment in the EU and WTO, in
THE EU, THE WTO, AND THE NAFTA: TOWARDS A COMMON LAW OF
INTERNATIONAL TRADE? 139 (J.H.H. Weiler ed., Ist ed. 2000).
100
22 U.S.C. § 6032(h) (2001) and Communication from the European Union, United States —
Certain Country of Origin Labelling (COOL) Requirements, ¶256, p.113, WTO WT/DS384/39
(Dec. 11, 2015).

16
412A Memorial for the Applicant
_________________________________________________________________________________

the labelling application is based on the production method of the tapagium, 101 not based on the

country of origin.102

3. In any case, the Tapagium Statute is justified under Article X of ARTA.

In any case, a regulation is justified under Article X of ARTA if the regulation’s policy

objective falls under any of the enumerated exceptions and the regulation’s application does not

constitute arbitrary discrimination.103 Here, Alducra satisfies the requirements under Article X.

The discussion below shall particularly refer to the Architerpan long-nosed bats. As

nectarivorous bats104, they are primarily at risk from unsafe agave farming practices.

a. The policy objectives are in line with the enumerated exceptions under
Article X of ARTA.

The Tapagium Statute was justified because it was necessary for (1) protecting public

morals; (2) protecting human, animal or plant life or health; and (3) relates to the conservation of

exhaustible natural resources.

i. The Tapagium Statute was necessary for protecting public morals.

(1) The bats’ welfare falls within the scope of public morality and is
a legitimate public moral concern in Alducra.

A policy objective falls within the meaning of “public morals” if it is a vital and

important societal interest.105 Animal welfare protection is internationally recognized as an

101
R¶15.
102
Appendix 1: Required Labels for Tapagium, Record.
103
Appellate Body Report, Indonesia — Importation of Horticultural Products, Animals and Animal
Products, ¶5.96, WTO. WT/DS477/AB/R (adopted Nov. 22, 2017).
104
R¶14.
105
Appellate Body Report, Colombia — Measures Relating to the Importation of Textiles, Apparel
and Footwear, ¶5.105, WTO. WT/DS461/AB/R (adopted June 22, 2016).

17
412A Memorial for the Applicant
_________________________________________________________________________________

important policy objective.106 The record is replete with facts showing Alducra has been

concerned over the bats’ welfare such as the passage of the 2015 statute, 107 their participation in

several MEAs,108 and their exchanges with Runbeti.109

Alducra’s Tapagium Statute is justified under the public morals exceptions since the

protection of bats, particularly the Architerpan long-nosed bats, is a legitimate public moral

concern in Alducra.

(3) The regulatory measure is necessary to protect the public’s

concern over the welfare of the bats.

The determination of necessity considers the measure’s contribution in achieving the

pursued objective.110 The greater the contribution, the more likely it is necessary.111 Applying this

necessity test, Alducra’s Tapagium Statute materially contributes to addressing the public’s

concern over the bat’s welfare through collective participation. In EC – Seals Products, the Panel

considered the citizens’ collective participation as end-consumers of the seal products and their

exposure to the market for seal products as an aspect of the public moral concern on seals

protection.112

106
Panel Reports, European Communities — Measures Prohibiting the Importation and Marketing
of Seal Products, ¶7.632, WTO. WT/DS400/R;WT/DS401/R (adopted June 16, 2014).
107
R¶15.
108
R¶4-8.
109
R¶22, ¶25.
110
Appellate Body Report, China — Measures Affecting Trading Rights and Distribution Services for
Certain Publications and Audiovisual Entertainment Products , ¶239, WTO WT/DS363/AB/R
(Dec. 21, 2009)
111
Id.,¶251-254.
112
Appellate Body Report, European Communities – Measures Prohibiting the Importation and
Marketing of Seal Products, ¶5.318, WTO. WT/DS400/AB/R;WT/DS401/AB/R (May 22, 2014).

18
412A Memorial for the Applicant
_________________________________________________________________________________

In this case, the bat-safe labels shape consumer preference in Alducra by encouraging the

purchase of untaxed and appropriately labelled bat-safe tapagium. Further, the measure

incentivizes farmers to return to organic and bat-safe agave farming.

ix. Alternatively, the Tapagium Statute was necessary for protecting

human, animal or plant life or health.
(1) The policy objective of Alducra’s Tapagium Statute is for the
purpose of protecting the farmers, bats and agave.

Alducra’s Tapagium Statute is justified under Article X (b) in light of its objective to

protect the agave farmers, bats and agave. First, a risk to biotic species must exist. 113 Here, the

cloning method imperils the farmers, bats, and agave.114 Cloning actively prevents the flowering

of agaves, consequently disturbing the symbiosis between the agaves and bats.115 With this, the

bats are deprived of nectar and pollen to feed on 116 and to pollinate.117 Without cross-fertilization,

the agave’s genetic diversity is lost,118 resulting in weak progeny119 and exposure to diseases and

113
Panel Report, European Communities — Measures Affecting Asbestos and Products Containing
Asbestos, ¶162, WTO. WT/DS135/R (adopted Apr. 5, 2001).
114
Kathleen Wilcox, Can Bats Save Tequila?, October 12, 2017, https://vinepair.com/articles/tequila-
sustainable-bat-friendly.html
115
Gwen Pearson – Tequila, Booze, and Bats, https://www.wired.com/2014/06/tequila-booze-and-bats/
116
Andrew Stuart - NATURE NOTES: For Endangered Long-Nosed Bat, An Intimate Link to Agave
Is Threatened, https://marfapublicradio.org/blog/nature-notes/for-endangered-long-nosed-bat-an-
intimate-link-to-agave-is-threatened/
117
Long-nosed Bats and Agaves: The Tequila Connection, https://www.batcon.org/article/long-
nosed-bats-and-agaves-the-tequila-connection/
118
The future of tequila: How clones, bats and biodiversity will help agave survive,
https://www.dallasnews.com/food/drinks/2019/10/21/the-future-of-tequila-how-clones-bats-and
biodiversity-will-help-agave-survive/
119
David G. Lloyd & Daniel J. Schoen, Self- and Cross-Fertilization in Plants. I. Functional
Dimensions, Int. J. Plant Sci., 153, 358-69, (1992).

19
412A Memorial for the Applicant
_________________________________________________________________________________

pests.120 This ensuing vulnerability necessitates the use of fertilizers and insecticides 121,

jeopardizing the agave farmers’ welfare. Long exposure to pesticides and insecticides leads to

the contraction of several diseases, including different types of cancer since these substances'

genotoxic and mutagenic capacity are high.122

(4) The Tapagium Statute is necessary to achieve said objective.

Under the necessity test,123 Alducra’s Tapagium Statute contributes to the promotion of

the welfare of the farmers, bats, and agaves. The imposition of eco-labels encourages producers

to transition to environmentally friendly production processes. Necessarily, the return to the

natural method will allow bats to pollinate the agaves, consequently restoring the genetic

diversity of agave and discarding the need to use hazardous chemicals in maintaining the cloned

agaves.

x. The Tapagium Statute relates to the conservation of exhaustible natural

resources.
(1) Both the agave and the bats are considered to be an exhaustible
natural resource in need of conservation management.

In US—Shrimp, it was ruled that exhaustible natural resources covers renewable living

species because these are also susceptible to depletion, exhaustion and extinction caused by

human activities.124 Analogously, the bats and agaves are exhaustible natural resources. The bats

120
Bats Conservation Trust, https://www.bats.org.uk/about-bats/why-bats-matter/bats-as-pollinators
121
National Academy of Sciences (US), Cloning: Definitions And Applications. National Academies
Press (US) Available from: https://www.ncbi.nlm.nih.gov/books/NBK223960/
122
Demirhan, O., et al., Chromosomal Aberrations in agricultural farmers exposed to pesticides. Adv
Toxicol Toxic Effects 3.1, 015-022 (2019).
123
Supra n.12.
124
Appellate Body Report, United States — Import Prohibition of Certain Shrimp and Shrimp
Products, ¶128, WTO WT/DS58/AB/R (Dec. 12, 1998).

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412A Memorial for the Applicant
_________________________________________________________________________________

are listed as ‘near threatened’ 125 due to the threats on their survival, viz: habitat disturbance and

disappearance of food source.126 The increased cloning of tapagium exposes agave to depletion

since the lack of genetic diversity makes them susceptible to contagious and recurring

diseases.127 Hence, both are exhaustible natural resources in need of conservation management.

(5) There is a nexus between the Tapagium statute and the policy of
conserving the bats and agave.

A trade measure is a conservation measure if its scope and reach is proportionate to the

policy objective.128 Here, Alducra’s Tapagium Statute is not a blanket regulation on all tapagium.

Rather, it only imposes burden on tapagium from cloned agaves129 with a view to incentivizing

bat-safe farming practices in producing tapagium.130

xi. There are no other reasonable alternative measures that Alducra could
have pursued in their objective to conserve and protect the bats.

In Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, a

regulation was held as necessary if there is no alternative measure consistent with the General

125
Medellín, R. 2016. Leptonycteris yerbabuenae. The IUCN Red List of Threatened Species 2016:
e.T136659A21988965. https://dx.doi.org/10.2305/IUCN.UK.2016-
1.RLTS.T136659A21988965.en. (Downloaded on 09 November 2020).
126
Lesser long-nosed bat, https://www.nationalgeographic.com/animals/mammals/l/lesser-long-
nosed-bat/#:~:text=Threats%20to%20survival,in%20some%20cases%20killing%20them
127
Harry X. Wu, Benefits and risks of using clones in forestry – a review, 34 Scand. J. For. Res., 352-
59 (2019).
128
Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline,
p.16, WTO WT/DS2/AB/R (Apr. 29, 1996).
129
R¶25.
130
Id.

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Agreement which the imposing state could reasonably be expected to employ to achieve its

stated objectives.131

Here, Alducra exhausted all available alternative measures in protecting the bats before

regulating tapagium. First, it passed the 2015 statute in an attempt to save the bats. 132 However,

since the bats are shared resources,133 its preservation requires Runbeti’s cooperation. Alducra

negotiated with Runbeti to convince the latter in passing a statute institutionalizing bat-safe

farming in Runbeti. Runbeti declined stating that the health of the bats and the agave were not

their policy priorities.134

Runbeti’s passivity regarding bat conservation makes bilateral cooperation impractical.

When the first-best option of multilateral cooperation is unavailable, an affected government

may consider using a regulation to address trans-border problems indirectly. 135 Thus, Alducra’s

Tapagium Statute is the only viable solution with respect to protecting the bats.

Further, in EC-Seals Products, it was ruled that a more lenient regulatory measure is not

a reasonably available alternative if it will not meaningfully contribute to addressing the stated

policy objective.136 In this case, a lenient tax measure or labeling requirement would not be apt in

addressing the risks faced by the bats and agave since there would be no incentive to adopt bat-

safe farming practices.

131
Report of the Panel, Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes,
¶23, DS10/R (Oct. 5, 1990).
132
R¶15.
133
R¶14.
134
Ibid.
135
Steve Charnovitz, The law of environmental PPMs in the WTO: debunking the myth of illegality,
71 YJIL 59-110, (2002).
136
Supra, n.112.

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b. The application of the Tapagium Statute does not constitute an arbitrary

and unjustifiable discrimination.

In Brazil--Retreaded Tyres, a measure constitutes an arbitrary and unjustifiable

discrimination if applied differently between imported and domestic products and this

differential treatment bears no relation to the pursued objective.137 Discrimination exists when the

measure’s application does not allow exporting countries from inquiring into the appropriateness

of the measure.138 Here, the Tapagium Statute’s structure does not favor domestic products. The

tax measure and labeling requirement are applied evenly to Alducra and Runbeti. 139 Moreover,

the Tapagium Statute relates to the pursued objectives under part II.A.3 and sub-headings supra.

Alducra was transparent as to the design, structure, and objective of the Tapagium Statute. 140

Lastly, Alducra’s legislation gave Runbeti ample time to comply with the legislation.141

4. Alducra did not violate Article IX because the labeling requirement and tax
measures are only domestic regulations.

A trade measure is a quantitative restriction if it restricts a product’s entry from any

contracting party at the border of importation (e.g. absolute prohibition or restriction on the

quantity of imports).142 Contrastingly, domestic regulations are referred to as “behind the border”

measures because they are only imposed once they have cleared customs. 143 Here, the Tapagium

Statute does not restrict the entry of imported tapagium to Alducra. It merely labels them “bat

137
Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres, ¶226-229, WTO
WT/DS1332/R (adopted Dec. 17, 2007).
138
Supra n.124, ¶164-65.
139
See II.A.2 and sub-headings.
140
R¶26.
141
Ibid.
142
Panel Report, India — Quantitative Restrictions on Imports of Agricultural, Textile and Industrial
Products, ¶5.128, WTO. WT/DS90/R (adopted Sep. 22, 1999).
143
Id., p.134.

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safe” or “not bat safe”.144 Further, the Tapagium Statute does not tax tapagium at the time of

entry into Alducra. The sales tax is applied only after the tapagium were introduced and sold in

the Alducran market. Based on the measures’ design and application, they can only be

characterized as domestic regulations.

B. ALDCURA HAS AN OBLIGATION TO ENACT EFFECTIVE

ENVIRONMENTAL LEGISLATION UNDER INTERNATIONAL LAW.

States are required to enact effective environmental legislation (e.g. trade measures)145

pursuant to their commitments under other areas of international law.146 Although it is a prima

facie trade measure, the Tapagium Statute is an effective environmental legislation under

international law.

1. The Tapagium Statute is consistent with Alducra’s obligations under several

multilateral environmental agreements.

The imposition of unilateral trade measures to enhance a treaty's effectiveness is a usual

state practice under international law.147 Here, Alducra’s Tapagium Statute incorporated

international environmental standards and its right to protect the bats is derived from being a

party to EUROBATS and CBD. The tax measure and labeling requirement are based on accepted

standards under international trade regime [See Part II.A and sub-headings]. Further, the statute

seeks to stop the growing expansion and intensification of agricultural products that endanger the

144
Supra, n.102.
145
See Cultivating our Futures: FAO/Netherlands Conference on the Multifunctional Character of
Agriculture and Land (Sep. 17, 1999); See also Principle 12 of the Rio Declaration.
146
Review of Implementation of the Rio Principles p.74. (prepared by Stakeholder Forum for a
Sustainable Future).
https://sustainabledevelopment.un.org/content/documents/1127rioprinciples.pdf (last accessed on
10 November 2020).
147
Supra, n.135.

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population of bats and agaves' genetic diversity. 148 It also advances the restoration of bat’s

feedings areas149 by allowing agaves to flower. In sum, the Tapagium Statute’s environmental

agenda only mirrors the existing international environmental agenda.

2. The Tapagium Statute does not cause unwarranted economic costs to

Runbeti.

Environmental legislation should avoid standards that “may be inappropriate and of

unwarranted economic and social cost to other countries, in particular developing countries”. 150

Here, the Tapagium Statute’s tax measure is only imposed domestically through a sales tax.

Aptly, only tapagium consumers from cloned agaves bear the burden of the sales tax, not the

Runbeti farmers or tapagium producers. In the macro-level, the Tapagium Statute does not hurt

Runbeti’s economy. While cloning may result in short-term high agricultural yield, substantial

loss is to be expected in the long run due to associated risks.151 Further, agricultural production

from cloning is more costly than growing plants naturally since the former requires the use of

insecticides and other agricultural products in ensuring the plant’s growth and survival.152

Above all, States should reconcile economic development with environment protection. 153

Regulatory measures (e.g., taxes and products standards) are the fastest and least costly vehicle

148
Food and Agricultural Organization of the United Nations, Impacts of farming intensification on
wildlife and ecosystem health,
http://www.fao.org/ag/againfo/home/en/news_archive/2012_Impacts_of_farming_intensification_on_wil
dlife.html (last accessed 14 October 2020).
149
Article III (2) of EUROBATS.
150
Principle 11 of Rio Declaration.
151
Owen, Henry R., "CLONING OF PLANTS" (2002). Faculty Research & Creative Activity. 145.
https://thekeep.eiu.edu/bio_fac/145
152
See Part II.A.3.b.ii.
153
Supra n.44, ¶140.

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to sustainable development.154 As repeatedly established, the onerous obligations under the

Tapagium Statute are necessary in the protection of bats, agaves, and agave farmers,155 without

restricting the trade relation between Alducra and Runbeti.156

154
Economic Instruments For Environmental Management And Sustainable Development for the
United Nations Environment Programme's Consultative Expert Group Meeting on the Use and
Application of Economic Policy Instruments for Environmental Management and Sustainable
Development Environmental Economics (December 1994) (prepared by Theodore Panayotou
University).
155
See Part II.A.3 and sub-headings.
156
See Part II.A and sub-headings .

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PRAYER

The Federal States of Alducra respectfully requests that this Court DECLARE that:

1. Runbeti violated international law with respect to its wind far project.

2. Alducra did not international law with respect to its trade measures for tapagium

products.

27