SIM 17A

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, NETHERLANDS

2019 GENERAL LIST NO. 24

QUESTIONS RELATING TO REINTRODUCTION OF BEARS

FEDERAL STATES OF ARCTOS

(APPLICANT)

V.

REPUBLIC OF RANVICORA

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

2019-20
 TABLE OF CONTENTS
Index of Authorities........................................................................................................................iv

Questions Presented.....................................................................................................................xiii

Statement of Jurisdiction..............................................................................................................xiv

Statement of Facts..........................................................................................................................xv

Summary of Arguments................................................................................................................xvi

Arguments Advanced......................................................................................................................1

I. Ranvicora has violated international law through its grey bear reintroduction project.......1

1. Ranvicora has violated its obligations under the Bern Convention.................................1

A. Ranvicora has violated Article 11 by introducing grey bears, a non-native, invasive

alien species.........................................................................................................................1

B. Ranvicora has violated its duty of not introducing grey bears outside their natural

range....................................................................................................................................4

2. Ranvicora has violated its obligations under the CBD....................................................4

A. Ranvicora has violated the duty to conserve biodiversity...........................................5

a. Ranvicora has violated the duty to prevent the introduction of IAS......................5

b. Ranvicora has violated the duty to take precautionary measures..........................6

c. Ranvicora has violated the duty not to cause harm to biodiversity.......................6

B. Ranvicora violated the duty to identify and monitor...................................................7

ii
 3. Ranvicora has violated customary international law by causing transboundary harm....8

A. Transboundary harm has taken place........................................................................10

a. There is a physical connection between the Project and the damage caused to

Arctos.............................................................................................................................10

b. There is human cause of the transboundary harm................................................10

c. Ranvicora caused harm that meets the threshold of severity...............................10

B. Ranvicora violated the due diligence principle.........................................................11

C. Ranvicora has failed in its duty to notify and consult with potentially affected states.

13

II. Arctos has not violated international law through its responses to Ranvicora’s

Reintroduction project...............................................................................................................13

1. Arctos’ response measures did not violate the Bern Convention..................................14

A. Arctos has not violated the population level conservation goal mandated by the

Convention.........................................................................................................................14

B. Arctos has not violated the duty to coordinate efforts with Ranvicora for the

protection of the grey bear.................................................................................................16

C. Arctos’ actions are permitted under Article 9 of the Bern Convention.....................16

2. Arctos has not violated its obligations under CBD.......................................................18

A. Arctos has acted in accordance with the duty to eradicate IAS.................................18

iii
 B. Arctos has acted in accordance with the duty to conserve biodiversity....................19

3. Arctos has not violated its obligations under the CMS.................................................20

A. Arctos is not a Range State........................................................................................20

B. Arctos’ act of killing bears is protected under extraordinary circumstances.............21

4. Arctos has not breached its customary obligation to prevent transboundary harm.......22

A. Arctos’ response measures do not constitute transboundary harm............................22

a. The harm does not cross the threshold of significance established by

international law............................................................................................................23

b. There has been no transboundary movement of harmful effects due to the

response measures.........................................................................................................24

B. Arctos has complied with the principle of due diligence..........................................24

C. Arctos acted to remedy the transboundary harm caused by Ranvicora.....................26

5. Even assuming that Arctos’ response measures caused transboundary harm, they are

precluded from being considered internationally wrongful by operation of the doctrine of

necessity.................................................................................................................................27

Conclusion.....................................................................................................................................30

iv
 INDEX OF AUTHORITIES

Treatises

BOWMAN ET AL., LYSTER’S INTERNATIONAL WILDLIFE LAW 549 (2d ed. 2010).........................20

LYLE GLOWKA ET AL., A GUIDE TO THE CONVENTION ON BIOLOGICAL DIVERSITY 26 (1994). .10

MALCOLM SHAW, INTERNATIONAL LAW 76 (8th ed. 2008)..............................................................8

PATRICIA BIRNIE ET AL., INTERNATIONAL LAW & THE ENVIRONMENT 176 (3rd ed. 2009)..........9

XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003)..............................9

Treaties and Conventions

Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79...........................................1

Convention on the Conservation of European Wildlife and Natural Habitats, art. 11(2)(b), Sept.

19, 1979, 1284 U.N.T.S. 209.......................................................................................................1

Convention on the Conservation of Migratory Species of Wild Animals, art. III(4)(c), June 6,

1979, 1651 U.N.T.S. 333...........................................................................................................20

Statute of the International Court of Justice, art. 38(1)(b), Apr. 18, 1946, 313 U.N.T.S. 99..........7

Vienna Convention on the Law of Treaties, art. 31(3)(b), May 23, 1969, 1155 U.N.T.S. 331.......1

Articles

A. E. Goodenough, Are the ecological impacts of alien species misrepresented? A review of the

“native good, alien bad” philosophy, 11(1) CMTY. ECOLOGY 13, 16 (2010).............................2

v
Andrew N. Cohen & James Cartlon, Accelerating Invasion Rate in a Highly Invaded Estuary,

279 AM. ASS’NADVANCEMENT SCI. 555, 558 (1998)................................................................3

Anthony Ricciardi & Daniel Simberloff, Assisted Colonization is not a Viable Conservation

Strategy, 24(5) TRENDS ECOLOGY & EVOLUTION 248, 249 (2009)............................................4

Arie Trouwborst, Wolves not welcome? Zoning for large carnivore conservation and

management under the Bern Convention and EU Habitats Directive, 27(3) REV. EUR. COMP.

INT’L ENVTL. L. 306, 315 (2018)..............................................................................................14

Brent, The Certain Activities Case: What Implications for the No Harm Rule, 20ASIA PACIFIC J.

ENVTL. L. 28, 48 (2017)............................................................................................................24

Cyril De Klemm, Migratory Species in International Law, 29 NAT. RES. J. 952, 953 (1994......23

Elizabeth A. Chornesky& John M. Randall, The Threat of Invasive Alien Species to Biological

Diversity: Setting a Future Course, 90(1) ANNALS MO. BOTANICAL GARDEN 67, 68 (2003). 17

Gary W. Romer & Robert K. Wayne, Conservation in Conflict: The Tale of Two Endangered

Species, 17(5) CONSERVATION BIOLOGY 1251, 1251 (2003)....................................................26

Gunther Handl, Transboundary Impacts, in THE OXFORD HANDBOOK OF INT’L. ENVTLL. (Daniel

Bodanskyeds., 2007)..................................................................................................................10

IadineChades et al., Setting Realistic Recovery Targets for Two Interacting Endangered Species,

Sea Otter and Northern Abalone, 26(6) CONSERVATION BIOLOGY 1016, 1016 (2012)...........25

Italy official defends killing rare bear after man mauled, BBC (Aug. 14, 2017).........................19

vi
Javier Naves, Patterns of brown bear damages on apiaries and management recommendations

in the Cantabrian Mountains, Spain, 13(11) PLOS ONE, Oct. 2018, at 2.................................18

Jennifer K. Fortin et al, Impacts of Human Recreation on Brown Bears (Ursusarctos): A Review

and New Management Tool, Spain, 11(11) PLOS ONE, Jan. 2016, at 3....................................19

Joseph D. Clark et al., Bear Reintroductions: Lessons and Challenges, 13 INT’L ASS’N BEAR

RES. MGMT.335, 340 (2002)......................................................................................................11

KlemenJerina&Miha Adamic, Fifty Years of Brown Bear Population Expansion: Effects of Sex-

Biased Dispersal on Rate of Expansion and Population Structure, 89(6) J. MAMMALOGY

1491, 1491 (2008)........................................................................................................................5

Marit Widman& Katrina Elofsson, Costs of Depredation by Large Carnivores in Sweden 2001

to 2013, 143 ECOLOGICAL ECON. 188, 189 (2017);..................................................................27

Michael E. Dorcas et al., Severe mammal declines coincide with proliferation of invasive

Burmese pythons in Everglades National Park, 109(7) PROC. NAT’L ACAD. SCI. 2418, 2419

(2012).........................................................................................................................................18

Michael P. Marchetti & Tag Engstrom, The Conservation Paradox of Endangered and Invasive

Species, 30(2) CONSERVATION BIOLOGY 434, 434 (2015)........................................................28

Miha Adamic, Expanding Brown Bear Population of Slovenia: A chance for bear recovery in the

Southeastern Alps, 9(2) BEARS: THEIR BIOLOGY AND MGMT. 25, 29 (1997............................22

Petra Kaczensky et al., Public Attitude Towards Brown Bears (Ursus Arctos) in Slovenia, 118

BIOLOGICAL CONSERVATION 661, 671 (2004)............................................................................5

vii
Roman Gula, Wolf depredation on domestic animals in the Polish Carpathian Mountains, 72 J.

WILDLIFE. MGMT 283, 288 (2008)............................................................................................27

Rosalyn Higgins, General Course on Public International Law, 230 RECUEIL DES COURS 1, 207

(1991);........................................................................................................................................10

Simon Lyster, The Convention on the Conservation of Migratory Species of Wild Animals (The

Bonn Convention), 29(4) NAT. RESOURCES J. 987, 981-982 (1989).........................................20

Teresa Abáigaretal, The first reintroduction project for mhorr gazelle (Nangerdamamhorr) into

the wild: Knowledge and experience gained to support future conservation actions, 19 GLOB.

ECOLOGY CONSERVATION 5, 9 (2019)......................................................................................12

Todd A Crowl, The spread of invasive species and infectious disease as drivers of ecosystem

change, 6(5) FRONTIERS ECOLOGY ENVIRONMENT 238, 238 (2008)..........................................6

Victor Garzon Machado et al., Threat or threatened species? A Paradox in Conservation

Biology, 20 J. NATURAL CONSERVATION. 228, 228 (2012)......................................................28

Miscellaneous

Agenda Item 6.3: Range States Classification, CMS Scientific Council Activity Planning

Meeting, UNEP/CMS/ScCAP/Doc.7 (June 13, 2009)..............................................................19

ALEKSANDRA MAJIĆSKRBINŠEK & MIHAKROFEL, COUNCIL OF EUROPE, DEFINING, PREVENTING,

AND REACTING TO PROBLEM BEAR BEHAVIOUR IN EUROPE 43 (2015).....................................21

Approaches to Human Bear Conflict Management, 5 IUCN BEAR SPECIALIST GROUP: HUMAN

BEAR CONFLICT TEAM (2019)...................................................................................................27

viii
AUSTRIAN BEAR EMERGENCY TEAM,JJ1 “Bruno” in Austria and Germany 2006 - Protocol of

events and assessment, (2006) ;Switzerland’s only wild bear is shot, SWI, (Feb 20, 2013).....27

Brown Bear Meets a Tragic End, SPIEGELONLINE(June 26, 2006)..............................................15

Congress OK's killing more sea lions to preserve salmon, CHINOOK OBSERVER, (Dec. 14, 2018).

...................................................................................................................................................26

Decision IX/4 CBD COP 9th mtg., UNEP/CBD/COP/DEC/IX/4, ¶11 at 4 (Oct. 9, 2008)............5

Decision VI/23, CBD COP 6th mtg., UNEP/CBD/COP/6/20 (Apr. 7-19, 2002)...........................2

Decision VII/11, CBD COP 7th mtg., UNEP/CBD/COP/DEC/VII/11 (Apr. 13, 2004)...............18

Decision VIII/27, CBD COP 8th mtg., UNEP/CBD/COP/DEC/VIII/27, ¶12 (June 15, 2006)......5

Decision XIII/13, CBD COP 13th mtg., UNEP/CBD/COP/DEC/XIII/13 (Dec. 13, 2016)............5

Guidelines for Reintroductions and Other Conservation Translocations, §6, IUCN SPECIES

SURVIVAL COMMISSION (2013)...................................................................................................6

Interpretation of Article 9 of the Bern Convention, COUNCIL OF EUROPE 6 (2010).....................16

Invasive Species Compendium: Boigairregularis (brown tree snake), CENTRE AGRIC. BIOSCI.

INT’L(Nov. 1, 2019)...................................................................................................................18

Invasive Species, THE NATIONAL WILDLIFE FEDERATION, https://www.nwf.org/Educational-

Resources/Wildlife-Guide/Threats-to-Wildlife/Invasive-Species...............................................3

JON E. SWENSON ET AL., COUNCIL OF EUROPE, ACTION PLAN FOR THE CONSERVATION OF THE

BROWN BEAR IN EUROPE (URSUSARCTOS)(2000).....................................................................11

ix
Kate Wong, Why Florida’s Giant Python Hunting Contest is a Bad Idea, SCI. AM. (Dec. 7,

2012)..........................................................................................................................................17

Luiza Ilie, Romania police track bear after latest deadly attack, REUTERS, (Sept. 19, 2012),

https://www.reuters.com/article/uk-romania-bears/romania-police-track-bear-after-latest-

deadly-attack-idUSLNE88I02E20120919...................................................................................3

Michael Roy, Lessons from Reintroduction: The Bear and the Wolf, BIODIVERSITY PROTECTION:

IMPLEMENTATION AND REFORM OF THE ENDANGERED SPECIES ACT (SUMMER CONFERENCE,

JUNE 9-12) (June 10, 1996)..........................................................................................................7

ML BOITANI ET AL., COUNCIL OF EUROPE, ACTION PLAN FOR THE CONSERVATION OF THE

WOLVES (CANIS LUPUS) IN EUROPE 22 (2000)..........................................................................13

OZOLIŅŠ ET AL., LATVIAN STATE FOREST RESEARCH INSTITUTE, ACTION PLAN FOR BROWN

BEAR URSUSARCTOS CONSERVATION5 (2008)............................................................................4

Parliamentary Question,EUR. PARL. E-3368/09 (May 5, 2009)....................................................16

PIERO GENOVESI AND CLARE SHINE, COUNCIL OF EUROPE, EUROPEAN STRATEGY ON INVASIVE

ALIEN SPECIES (2004)..................................................................................................................2

Range States Classification, CMS Scientific Council 16th mtg., UNEP/CMS/ScC16/Doc 24 at ¶5

(June 28-30, 2010).....................................................................................................................20

Recommendation No. 115, Standing Committee of the Bern Convention on the conservation and

management of transboundary populations of large carnivores, COUNCIL OF EUROPE (2005);

...................................................................................................................................................14

x
Recommendation No. 137, Standing Committee of the Bern Convention, on population level

management of large carnivore populations, COUNCIL OF EUROPE (2008).............................14

Recommendation No. 142, Standing Committee of the Bern Convention, interpreting the CBD

definition of invasive alien species to take into account climate change, COUNCIL OF

EUROPE(2009)..............................................................................................................................2

Recommendation No. 158, Standing Committee of the Bern Convention on Conservation

translocations under changing climatic conditions, COUNCIL OF EUROPE (2012).....................3

Recommendation No. 159, Standing Committee of the Bern Convention on the effective

implementation of guidance for Parties on biodiversity and climate change, COUNCIL OF

EUROPE(2012)..............................................................................................................................2

Recommendation No. 163, Standing Committee of the Bern Convention, on the management of

expanding populations of large carnivores in Europe, COUNCIL OF EUROPE (2005)...............14

Recommendation No. 61, Standing Committee of the Bern Convention on the Conservation of

the White-headed Duck, COUNCIL OF EUROPE (1997)................................................................3

Recommendation No. 82, Standing Committee of the Bern Convention on urgent measures

concerning the implementation of action plans for large carnivores in Europe, COUNCIL OF

EUROPE (2000);..........................................................................................................................14

Recommendation No. 99, Standing Committee of the Bern Convention on the European Strategy

on Invasive Alien Species, COUNCIL OF EUROPE (2003);.............................................................2

Resolution 11.28, CMS COP 11th mtg., UNEP/CMS/Resolution 11.28, ¶4 (Nov. 4-9, 2014)......5

xi
Review of the Ecological Effects of Poisoning on Migratory Birds, CMS Scientific Council, 11th

mtg, UNEP/CMS/COP11/Inf.34 (Aug. 29, 2014).....................................................................21

Standing Committee: 31st Meeting (Nov. 29, 2011-Dec.2, 2011),COUNCIL OF EUROPE (2011). .16

Statement on M13, INTERNATIONAL UNION FOR CONSERVATION OF NATURE (2013).................23

Switzerland’s Only Wild Bear is Shot, SWISSINFO (Feb. 20, 2013)..............................................15

WORLDWIDEFUND FOR NATURE, BEARS IN AUSTRIA - A MANAGEMENT PLAN, 6 (2005)............7

UN Documents

Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities, 2001 in Report of the International Law Commission on the Work of its Fifty-Third

Session, Report of the Commission to the General Assembly on the work of its fifty-third

session, (Apr. 23-June 1, July 2-Aug. 10, 2001) U.N. Doc. A/CN.4SER.A/2001/Add.1 (Part 2)

(2001) art. 2(c).............................................................................................................................8

Report of the International Law Commission on the Work of Its Fifty-Third Session, [2001] 2

Y.B. Int’l L. Comm’n 34, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2)..............................22

Report of the International Law Commission on the Work of its Thirty-Second Session (5 May-

25 July 1980), [1980] 2(2) Y.B. Int’l L. Comm’n 34, U.N. Doc. A/CN.4/SER.A/1980/Add.1

(Part 2).......................................................................................................................................27

Report of the International Law Commission, U.N. GAOR, 49th Sess., Supp. No. 10, at 195,

237, U.N. Doc. A/49/10 (1994).................................................................................................24

xii
Stockholm Declaration of the United Nations Conference on the Human Environment, U.N. Doc.

A/CONF.48/14/Rev (1973).........................................................................................................8

U.N. Conference on Environment and Development, Rio Declaration on Environment and

Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol.I), annex I (Aug. 12, 1992) Principle 2.8

Judicial Decisions & Arbitral Awards

Case C-342/05, Commission of the European Communities v. Republic of Finland, 2007 E.C.R.

I- 4713 ¶29.................................................................................................................................16

Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and

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

Judgment, 2015 I.C.J. Rep.665 ¶105, (Dec. 16, 2015);.............................................................24

Continental Shelf (Libya v Malta), Judgment, 1985 I.C.J. Rep. 13 (June 3);.................................8

Gabčikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25).......11

Lac Lanoux Arbitration (Spain v. Fr.), 12 R.I.A.A. 281, at 306 (Nov. 16, 1957).........................12

Legality of the Threat of Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226,

(July 8).........................................................................................................................................8

Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 1, (Apr. 20)............6

Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A 1907, 1965 (1938/41).....................................8

xiii
 QUESTIONS PRESENTED

-I-

Whether Ranvicora violated international law with respect to its grey bear reintroduction project?

-II-

Whether Arctos violated international law with respect to its responses to Ranvicora’s

reintroduction of grey bears?

xiv
 STATEMENT OF JURISDICTION

The Federal States of Arctos [“Arctos”] and the Republic of Ranvicora [“Ranvicora”] submit

the present dispute to the International Court of Justice [“ICJ”]. Pursuant to Article 40(1) of the

Statute of the ICJ, States may bring cases before the ICJ by special agreement. On July 15, 2019

the parties signed a special agreement and submitted it to the Registrar of the ICJ. A Special

Agreement Between Arctos and Ranvicora for Submission to the ICJ of Differences Between

Them Concerning Questions Relating to Reintroducing of Bears was signed on July 11, 2019.

The Registrar of the ICJ acknowledged receipt of the joint notification on July 22, 2019.

xv
 STATEMENT OF FACTS

Arctos and Ranvicora are neighbouring States located on the continent of Suredia sharing a

forested 75 km border. Arctos does not share a border with any other country. (R.¶1).

Arctos and Ranvicora are parties to Vienna Convention on the Law of Treaties [“VCLT”],

Convention on Biological Diversity [“CBD”], Convention on the Conservation of European

Wildlife and Natural Habitats [“Bern Convention”], and Convention on the Conservation of

Migratory Species of Wild Animals [“CMS”]. (R.¶3-¶7).

The grey bear, a species endemic to Suredia, has been listed as Endangered on the IUCN Red

List of Threatened Species. Due to overhunting and habitat destruction, grey bears went extinct

in Ranvicora in 1963. In 2008, the Government of Ranvicora planned a reintroduction project to

bring them back to Ranvicora but neither informed other countries nor assessed its potential

impacts on other countries. (R.¶9-¶12).

The grey bears were released in the region bordering Arctos. Questions were raised as to whether

this region was part of grey bear’s historic range. (R.¶13) Grey bears later crossed into Arctos

from Ranvicora, attacked animals and harmed endangered endemic Trouwborst terns in Arctos.

(R.¶17) Arctos contended that grey bear is an invasive alien species [“IAS”] and demanded

Ranvicora to take action. (R.¶18) Ranvicora denied Arctos’ claim and continued with the

project. (R.¶19) Further, a bear mauled two children and thus, Arctos issued an emergency

notification allowing poisoning and shooting of grey bears in its territory to protect citizens of

Arctos. (R.¶¶20, 21).

xvi
The States failed to resolve the dispute through negotiation. Thereafter, the Parties entered into a

Special Agreement to institute proceedings in the International Court of Justice [“ICJ”].

(R.¶24).

SUMMARY OF ARGUMENTS

-I-

Ranvicora violated its obligations under the Bern Convention as they have introduced grey bears

outside its historic range. Grey bears became invasive in Arctos as they were non-native species

and harmed native species. Further, Ranvicora violated its obligations under the CBD to

conserve biodiversity by failing to take precautionary measures for reintroducing grey bears and

by failing to monitor the project. Additionally, Ranvicora was bound by the customary duty to

prevent transboundary harm, since significant risk was present. However, it failed to discharge

its due diligence obligation of maintaining vigilance over the project and violated the duty to

notify and consult Arctos before the project. Finally, Ranvicora violated the precautionary

principle since it did not undertake a comprehensive EIA and reintroduce grey bears without

taking the adequate measures.

-II-

Arctos was not bound by the customary duty to prevent transboundary harm since the harm does

not cross the threshold of significance. Moreover, Arctos complied with the due diligence

principle by removing grey bears, which was consistent with the precautionary principle. Arctos

has acted in accordance with the duty under CBD to conserve biodiversity by eradicating grey

bears because it is an IAS. Further, Arctos has not violated CMS as Arctos is not a range state for

grey bears. Moreover, killing is allowed under extraordinary circumstances. Additionally, Arctos
xvii
has not violated the Bern Convention since the population level conservation goal has not been

violated and further Arctos’ actions were satisfactory. Finally, Arctos’ response measures are

precluded from being considered internationally wrong by operation of the doctrine of necessity.

xviii
 ARGUMENTS ADVANCED

I. RANVICORA HAS VIOLATED INTERNATIONAL LAW THROUGH ITS GREY BEAR

REINTRODUCTION PROJECT.

Ranvicora violated international law through its grey bear reintroduction project [“Project”] as it

violated the Bern Convention [1], the CBD [2] and customary international law [“CIL”][3].

1. Ranvicora has violated its obligations under the Bern Convention.

Article 11 of the Bern Convention obligates Parties to control the introduction of non-native

species.1Ranvicora’s reintroduction of grey bears violated this duty as grey bears are non-native,

invasive alien species [A], and they were introduced outside their natural range [B].

A. Ranvicora has violated Article 11 by introducing grey bears, a non-native,

invasive alien species.

TheBern Convention prohibits the introduction of non-native species, but does not define the

term ‘non-native’.2 Therefore, the subsequent practice of States 3 and any relevant rules of

international law applicable between the Parties, 4 such as the CBD5 may be considered to

1
Convention on the Conservation of European Wildlife and Natural Habitats, art. 11(2)(b), Sept.

19, 1979, 1284 U.N.T.S. 209 [hereinafter Bern Convention].

2
See generally Bern Convention.
3
Vienna Convention on the Law of Treaties, art. 31(3)(b), May 23, 1969, 1155 U.N.T.S. 331

[hereinafter VCLT].
4
VCLT, supra note 3, art. 31(3)(c).
5
Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD].
1
interpret it. The Standing Committee of the Bern Convention 6 has interpreted Article 11 in the

sense that it prohibits introduction of non-native species or IAS and if introduced, such species

must be eradicated, particularly in a transboundary context. 7 Additionally, States must also assess

the potential of species already present in their territory to become invasive due to climate

change.8 Such speciesthreaten native biodiversity 9 and cause their extinctions.10 Examples

include the adverse ecological effects of introduction of the brown tree snake in Guam, the

American mink in the UK and the European hedgehog in Scotland.11

6
Recommendation No. 142, Standing Committee of the Bern Convention, interpreting the CBD

definition of invasive alien species to take into account climate change, COUNCIL OF

EUROPE(2009).
7
Recommendation No. 99, Standing Committee of the Bern Convention on the European Strategy

on Invasive Alien Species, COUNCIL OF EUROPE (2003); PIERO GENOVESI AND CLARE SHINE,

COUNCIL OF EUROPE, EUROPEAN STRATEGY ON INVASIVE ALIEN SPECIES (2004).

8
Recommendation No. 159, Standing Committee of the Bern Convention on the effective

implementation of guidance for Parties on biodiversity and climate change, COUNCIL OF

EUROPE(2012).
9
Decision VI/23, CBD COP 6th mtg., UNEP/CBD/COP/6/20 (Apr. 7-19, 2002) [hereinafter

Decision VI/23].
10
A. E. Goodenough, Are the ecological impacts of alien species misrepresented? A review of

the “native good, alien bad” philosophy, 11(1) CMTY. ECOLOGY 13, 16 (2010).
11
Id.
2
Generally, species that grow and reproduce quickly, and spread aggressively, with potential to

cause harm are labelled invasive.12

Sub-species of brown bears, such as Romanian brown bears, have, for instance, caused fatal

damage.13Similarly, grey bears have been detrimental to the native biodiversity in Arctos 14and

hence are non-native, IAS,15 and their reintroduction is a violation of Article 11.

B. Ranvicora has violated its duty of not introducing grey bears outside their

natural range.

Introducing species outside their historic range increases their tendency to become invasive 16 and

threaten native biodiversity.17This practice is not a viable conservation strategy. 18 For

instance,only a few bears from a reintroduction project in Latvia survived, as they were

12
Invasive Species, THE NATIONAL WILDLIFE FEDERATION, https://www.nwf.org/Educational-

Resources/Wildlife-Guide/Threats-to-Wildlife/Invasive-Species.
13
Luiza Ilie, Romania police track bear after latest deadly attack, REUTERS, (Sept. 19, 2012),

https://www.reuters.com/article/uk-romania-bears/romania-police-track-bear-after-latest-deadly-

attack-idUSLNE88I02E20120919.
14
Record, ¶17.
15
Recommendation No. 61, Standing Committee of the Bern Convention on the Conservation of

the White-headed Duck, COUNCIL OF EUROPE (1997).

16
Recommendation No. 158, Standing Committee of the Bern Convention on Conservation

translocations under changing climatic conditions, COUNCIL OF EUROPE (2012) [hereinafter

Recommendation No. 158].

17
Andrew N. Cohen & James Cartlon, Accelerating Invasion Rate in a Highly Invaded Estuary,

279 AM. ASS’NADVANCEMENT SCI. 555, 558 (1998).

3
introduced outside their normal breeding area.19 In the instant case, Ranvicora has violated its

obligation to not introduce the grey bears outside their historical range and hence, violated the

Bern Convention.

2. Ranvicora has violated its obligations under the CBD.

Ranvicora violated its obligations under the CBD because it violated the duty to conserve

biodiversity [A]and to identify and monitor [B].

A. Ranvicora has violated the duty to conserve biodiversity.

Ranvicora has violated the duty to conserve biodiversity because it violated the duty to prevent

the introduction of IAS[a], the duty to take precautionary measures [b],and the duty not to cause

harm to biodiversity [c].

a. Ranvicora has violated the duty to prevent the introduction of IAS.

Article 8(h) of the CBD requires Parties to prevent the introduction of alien species which

threaten the ecosystem, habitat or other species. 20For instance, in Slovenia, the size and range of

the brown bear population substantially increased21 and caused damage to livestock, beehives

18
Anthony Ricciardi & Daniel Simberloff, Assisted Colonization is not a Viable Conservation

Strategy, 24(5) TRENDS ECOLOGY & EVOLUTION 248, 249 (2009).

19
OZOLIŅŠ ET AL., LATVIAN STATE FOREST RESEARCH INSTITUTE, ACTION PLAN FOR BROWN

BEAR URSUSARCTOS CONSERVATION5 (2008).

20
CBD, supra note 5, art. 8(h).
21
KlemenJerina&Miha Adamic, Fifty Years of Brown Bear Population Expansion: Effects of

Sex-Biased Dispersal on Rate of Expansion and Population Structure, 89(6) J. MAMMALOGY

1491, 1491 (2008).

4
and orchards.22 Similarly, grey bears have been causing harm to biodiversity in Arctos 23 and are,

therefore, IAS.24 Thus, Ranvicora has violated its duty under the CBD by introducing grey bears.

b. Ranvicora has violated the duty to take precautionary measures.

Under the CBD, States must take proactive measures to minimize the effects of IAS 25 based on

theprecautionary approach.26Even if grey bears were extending their range due to climate change,

parties musttake into consideration climatic change. 27Under CMS Resolution 11.28, Parties must

conduct risk assessments taking into accountfuture climate change scenarios, and take

conservation measures for endangered species. 28The range expansion of native species, in

response to climate change has adverse effects on the ecosystems they inhabit. 29Ranvicora was,

therefore, bound to take preventive measures, but did not, hence, violated the precautionary

principle.

22
Petra Kaczensky et al., Public Attitude Towards Brown Bears (Ursus Arctos) in Slovenia, 118

BIOLOGICAL CONSERVATION 661, 671 (2004).

23
Record, ¶14.
24
See argument I[1][A].
25
Decision VIII/27, CBD COP 8th mtg., UNEP/CBD/COP/DEC/VIII/27, ¶12 (June 15, 2006).
26
Decision XIII/13, CBD COP 13th mtg., UNEP/CBD/COP/DEC/XIII/13 (Dec. 13, 2016).
27
Decision IX/4 CBD COP 9th mtg., UNEP/CBD/COP/DEC/IX/4, ¶11 at 4 (Oct. 9, 2008).
28
Resolution 11.28, CMS COP 11th mtg., UNEP/CMS/Resolution 11.28, ¶4 (Nov. 4-9, 2014).
29
Todd A Crowl, The spread of invasive species and infectious disease as drivers of ecosystem

change, 6(5) FRONTIERS ECOLOGY ENVIRONMENT 238, 238 (2008).

5
 c. Ranvicora has violated the duty not to cause harm to biodiversity.

States mustensure that their activities do not harm biodiversity, 30anduse biological resources in a

manner that does not cause any detrimental effect on biodiversity. 31 However, Ranvicora’s

reintroduction project has caused harm to biodiversity as grey bears have caused damage to

animals and the environment.32 Thus, Ranvicora violated the duty to not cause harm to

biodiversity.

B. Ranvicora violated the duty to identify and monitor.

Under Article 7 of the CBD, Parties must identify and monitor components of biodiversity for

conservation, and projects which are likely to adversely impact biodiversity. 33The reintroduction

process of any species requires comprehensive risk assessment of translocation, 34 examination of

scientific risks, success potential, etc. 35 For instance, in Austria, any decision related to bears is

30
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. Rep. 1, (Apr. 20)

[hereinafter Pulp Mills].

31
CBD, supra note 5, art. 10(b).
32
Record, ¶17.
33
CBD, supra note 5, art. 7(c).
34
Guidelines for Reintroductions and Other Conservation Translocations, §6, IUCN SPECIES

SURVIVAL COMMISSION (2013)

35
Michael Roy, Lessons from Reintroduction: The Bear and the Wolf, BIODIVERSITY

PROTECTION: IMPLEMENTATION AND REFORM OF THE ENDANGERED SPECIES ACT (SUMMER

CONFERENCE, JUNE 9-12) (June 10, 1996).

6
made after scientific research concerning their status in Austria and other neighboring

countries.36

Even though the scientists involved with the reintroduction project confirmed that there was

movement of bears to Arctos,37Ranvicorafailed to monitor the reintroduction project and its

effects on the endangered species in Arctos.38 Thus, Ranvicora violated the duty to identify and

monitor.

3. Ranvicora has violated customary international law by causing transboundary

harm.

Ranvicora has violated CIL as it has violated the duty to prevent transboundary harm. According

to Article 38(1)(b) of the Statute of the ICJ, a CIL norm must constitute evidence of general

practice accepted as law.39 Hence, a norm is said to be CIL if it is backed by the requisite state

practice and opinio juris.40 The duty to prevent transboundary harm is present under Article 3 of

36
WORLDWIDEFUND FOR NATURE, BEARS IN AUSTRIA - A MANAGEMENT PLAN, 6 (2005).
37
Record, ¶16.
38
Record, ¶17.
39
Statute of the International Court of Justice, art. 38(1)(b), Apr. 18, 1946, 313 U.N.T.S. 99.
40
Continental Shelf (Libya v Malta), Judgment, 1985 I.C.J. Rep. 13 (June 3); Legality of the

Threat of Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, (July 8) [hereinafter

Nuclear Weapons];MALCOLM SHAW, INTERNATIONAL LAW 76 (8th ed. 2008).

7
the CBD41 and in CIL, as evidenced by its inclusion in various conventions 42and international

instruments,43as well as recognition by various judicial decisions.44

Transboundary harm occurs when the activities carried out in one state inflict adverse effects on

another state.45Ranvicora has violated the duty to prevent transboundary harm as transboundary

harm has taken place [a], it failed to act with due diligence [b],and it breached the duty of

consultation and notification [c].

41
CBD, supra note 5, art. 3.
42
U.N. Conference on Environment and Development, Rio Declaration on Environment and

Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol.I), annex I (Aug. 12, 1992) Principle 2

[hereinafter Rio Declaration], Stockholm Declaration of the United Nations Conference on the

Human Environment, U.N. Doc. A/CONF.48/14/Rev (1973) Principle 21; CBD, supra note 5,

art. 3.
43
Commentary on the Draft Articles on Prevention of Transboundary Harm from Hazardous

Activities, 2001 in Report of the International Law Commission on the Work of its Fifty-Third

Session, Report of the Commission to the General Assembly on the work of its fifty-third

session, (Apr. 23-June 1, July 2-Aug. 10, 2001) U.N. Doc. A/CN.4SER.A/2001/Add.1 (Part 2)

(2001) art. 2(c) [hereinafter I.L.C. Transboundary].

44
Nuclear Weapons supra note 40; Trail Smelter Arbitration (U.S. v. Can.), 3 R.I.A.A 1907, 1965

(1938/41) [hereinafter Trail Smelter].

45
XUE HANQIN, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW 4 (2003) [hereinafter

HANQIN].
8
 A. Transboundary harm has taken place.

Transboundary harm is caused if there is a physical connection between the activity concerned

and the damage caused[i]; human causation[ii]; harm that meets a level of gravity[iii]; and

transboundary movement of injurious effects, which is not disputed. 46 In the instant case, all the

elements of transboundary harm are met.

a. There is a physical connection between the Project and the damage

caused to Arctos.
There is a physical connection between the project and the damage as the Project by the

Ranvicora has caused damage to orchards, endangered Trouwborst terns, horses and sheep in

Arctos.47

b. There is human cause of the transboundary harm.

The test of proximate causal relation between the harm and the human conduct 48 is satisfied

because the harm has been caused due to the Project started by government of Ranvicora.

c. Ranvicora caused harm that meets the threshold of severity.

The transboundary harm should reach a certain degree of severity 49 which changes with the facts

and circumstances.50 Transboundary damage occurs when there is environmental damage,

physical injury, or loss of life and property in the territory of another country. 51 In the present
46
PATRICIA BIRNIE ET AL., INTERNATIONAL LAW & THE ENVIRONMENT 176 (3rd ed. 2009)

[hereinafter BIRNIE].
47
Record ¶17.
48
HANQIN, supra note 45, at 6.
49
Id. at 7.
50
Id.
51
Id.
9
case, the threshold of severity is met as the harm caused by the Project has not only caused

damage to native species and plants52 but also to human life.53

B. Ranvicora violated the due diligence principle

While the obligation under the CBD and CIL to prevent transboundary harm is of due

diligence,54 States must comply with reasonable minimum standards 55 such as best environmental

practice56 and take a reasonable course of action. 57States must take preventive actions like EIA 58

which has been recognized by various international instruments, 59 international conventions60 and

judicial decisions.61 For instance, in a reintroduction project in the U.S.A, an EIA was conducted

52
Record, ¶17.
53
Record, ¶21.
54
BIRNIE, supra note 46, at 147.
55
Rosalyn Higgins, General Course on Public International Law, 230 RECUEIL DES COURS 1,

207 (1991); LYLE GLOWKA ET AL., A GUIDE TO THE CONVENTION ON BIOLOGICAL DIVERSITY

26 (1994) [hereinafter GLOWKA].

56
Gunther Handl, Transboundary Impacts, in THE OXFORD HANDBOOK OF INT’L. ENVTLL.

(Daniel Bodanskyeds., 2007).

57
I.L.C. Transboundary, supra note 43, at 155.
58
CBD, supra note 5, art. 14.
59
I.L.C. Transboundary, supra note 43, at 153.
60
Rio Declaration, supra note 42, Principle 17.
61
Gabčikovo-Nagymaros Project (Hung. v. Slovk.), Judgment, 1997 I.C.J. Rep. 7 (Sept. 25)

[hereinafter Gabcikovo].
10
for better management of grizzly bears.62 Moreover, electric fences have been used in the

Trentino bear range in Italy since 1978 to prevent the harm caused to environment of other

States.63

However, the EIA did not assess potential impacts on other states 64 and hence, is not

conclusiveunder international norms. Ranvicora did not undertake any preventive measures like

construction of fences or barrier,65oruse of GPS collars which provides valuable information

regarding the success of the project 66to prevent the harm. Thus, Ranvicora has violated the due

diligence principle.

62
Joseph D. Clark et al., Bear Reintroductions: Lessons and Challenges, 13 INT’L ASS’N BEAR

RES. MGMT.335, 340 (2002).

63
JON E. SWENSON ET AL., COUNCIL OF EUROPE, ACTION PLAN FOR THE CONSERVATION OF THE

BROWN BEAR IN EUROPE (URSUSARCTOS) (2000) [hereinafter SWENSON].

64
Record, ¶12.
65
Clarifications, A9.
66
Teresa Abáigaretal, The first reintroduction project for mhorr gazelle (Nangerdamamhorr)

into the wild: Knowledge and experience gained to support future conservation actions, 19

GLOB. ECOLOGY CONSERVATION 5, 9 (2019).

11
 C. Ranvicora has failed in its duty to notify and consult with potentially affected

states.

The duty of cooperation and consultation is present under the CBD, 67 principles of transboundary

harm management68 andvarious judicial decisions.69 Reasonable weight must be accorded to the

interests of other neighbouring states before conducting any activity. 70 However, Ranvicora did

not consult or notify the neighboring countries regarding the Project and its potential impacts on

them.71 Therefore, Ranvicora has failed in duty to notify or consult with other countries

regarding its project.

II. ARCTOS HAS NOT VIOLATED INTERNATIONAL LAW THROUGH ITS RESPONSES TO

RANVICORA’S REINTRODUCTION PROJECT.

Arctos’ response measures to the reintroduction project are not violative ofinternational law as

did not violatethe Bern Convention[1], the CBD[2], the CMS[3], or CIL [4]. In any case, its

actions are precluded from being considered internationally wrongful under the doctrine of

necessity [5].

67
CBD, supra note 5, art. 5.
68
BIRNIE, supra note 46, at 175.
69
Gabcikovo, supra note 61, ¶101; MOX Plant Case (2001) ITLOS No 10.
70
Lac Lanoux Arbitration (Spain v. Fr.), 12 R.I.A.A. 281, at 306 (Nov. 16, 1957) [hereinafter

Lac Lanoux].
71
Record, ¶12.
12
 1. Arctos’ response measures did not violate the Bern Convention.

Arctos’ response measures do not violate the Bern Convention as it has not violated the

population level conservation goal mandated by the Convention [A]; it has not violated the duty

to coordinate efforts with Ranvicora for the protection of grey bears [B]; and its actions are

permitted under Article 9 of the Bern Convention [C].

A. Arctos has not violated the population level conservation goal mandated by

the Convention.

Article 2 of the Bern Convention mandates the maintenance of population of wild fauna at a

level that corresponds to ecological, scientific, and cultural requirements, while taking into

account economic and recreational requirements.72 The concept of economic feasibility of the

recovery of a large carnivore population has been envisaged in both, the wolf 73 and brown bear74

recovery plans75 and rural coexistence is to be ensured.76Therefore, the population level that

72
Bern Convention, supra note 1, art. 2.
73
ML BOITANI ET AL., COUNCIL OF EUROPE, ACTION PLAN FOR THE CONSERVATION OF THE

WOLVES (CANIS LUPUS) IN EUROPE 22 (2000).

74
SWENSON, supra note 63, at 31.
75
Arie Trouwborst, Wolves not welcome? Zoning for large carnivore conservation and

management under the Bern Convention and EU Habitats Directive, 27(3) REV. EUR. COMP.

INT’L ENVTL. L. 306, 315 (2018).

76
Id. at 311, citing Recommendations No 74 (1999), No 82 (2000), No 115 (2005), No 137

(2008) and No 148 (2010).

13
Arctos must maintain is relatively low, given the detrimental economic impact of grey bears 77

and their effect on rural livelihoods78 in the border area.

Further, the Bern Convention envisages transboundary population level management. 79 It would

be manifestly absurd80 to read the obligation as an absolute prohibition on lethal control in areas

with extremely small migratory populations that form part of larger populations elsewhere.

Germany81 and Switzerland,82 for instance, have resorted to lethal removal even of a single bear

that could have been the founder of a population in their territory, when it caused damage to

livestock and property. As only six bears of a successfully reproducing population 83 with 20

founders, Arctos has not violated the population level conservation goal.

77
Record, ¶17.
78
Id.
79
Recommendation No. 82, Standing Committee of the Bern Convention on urgent measures

concerning the implementation of action plans for large carnivores in Europe, COUNCIL OF

EUROPE (2000); Recommendation No. 115, Standing Committee of the Bern Convention on the

conservation and management of transboundary populations of large carnivores, COUNCIL OF

EUROPE (2005); Recommendation No. 163, Standing Committee of the Bern Convention, on the

management of expanding populations of large carnivores in Europe, COUNCIL OF EUROPE

(2005); Recommendation No. 137, Standing Committee of the Bern Convention, on population

level management of large carnivore populations, COUNCIL OF EUROPE (2008).

80
VCLT, supra note 3, art. 32(b).
81
Brown Bear Meets a Tragic End, SPIEGELONLINE(June 26, 2006).
82
Switzerland’s Only Wild Bear is Shot, SWISSINFO (Feb. 20, 2013).
83
Record, ¶15.
14
 B. Arctos has not violated the duty to coordinate efforts with Ranvicora for the

protection of the grey bear.

The obligation under Article 10 to coordinate their efforts to protect migratory species arises

only if the range of such species extends to their territories.84 However, since Arctos is not a

range state for the grey bear85, it has not violated Article 10.

C. Arctos’ actions are permitted under Article 9 of the Bern Convention.

Derogation from Article 6 and 8 of the Convention for, inter alia, the protection of flora and

fauna, and to prevent serious damage to crops, livestock, and other forms of property is allowed

under Article 9.86 If the derogation is for protection of flora and fauna, no threshold of

seriousness need be proven;87 and even in the case of damage to livestock, the term, ‘serious’

does not signify that the damage is to be widespread.88

It is mandated that there must be no other satisfactory solution available, but examples show that

the derogation has been used as a manner of controlling populations where bears cause

depredation. For instance, under this derogation, Sweden is allowed to kill large numbers of

84
Bern Convention, supra note 1, art. 10.
85
See Argument II[3][A].
86
Bern Convention, supra note 1, art. 9.
87
Interpretation of Article 9 of the Bern Convention, COUNCIL OF EUROPE 6 (2010) [hereinafter

Interpretation Article 9].

88
Standing Committee: 31st Meeting (Nov. 29, 2011-Dec.2, 2011),COUNCIL OF EUROPE (2011),

at 69.
15
bears for damage to livestock,89 and culls are routinely authorized in Slovenia to keep the

population at a manageable level.90

Further, the derogation must not be detrimental to the survival of the population. For this

purpose, the broader population is also to be considered. 91Under the Habitats Directive, an

implementing legislation, derogations can be granted even for species which do not have a

favourable conservation status, as long as the status of the species is notworsened.92

Grey bears are harming the Trouwborst tern, an endangered native species, 93 and have caused

significant damage to livestock.94 Taking into account the broader population, removal of a few

individuals is unlikely to worsen the conservation status of grey bears; and hence, Arctos’

actions are appropriate under Article 9.

2. Arctos has not violated its obligations under CBD.

Arctos has not violated its obligations under CBD because grey bear is an IAS and it has acted in

accordance with the duty to eradicate IAS [A] and it has acted in accordance with the duty to

conserve biodiversity [B].

89
Interpretation Article 9, supra note 87, at22.
90
Parliamentary Question,EUR. PARL. E-3368/09 (May 5, 2009).
91
Interpretation Article 9, supra note 87, at 11.
92
Case C-342/05, Commission of the European Communities v. Republic of Finland, 2007

E.C.R. I- 4713 ¶29.

93
Record, ¶17.
94
Record, ¶20.
16
 A. Arctos has acted in accordance with the duty to eradicate IAS.

Under CBD, Parties must eradicate/control those ‘alien species’ which threaten ecosystems,

habitats or species95 since they have significant adverse effects on habitats, biodiversity and

public health.96Examples include a python hunt97 to control invasive Burmese pythons in

Everglades98 and establishment of a multi-agency Rapid Response Team to control the brown

tree snake in Guam.99

Similarly, Arctos’ emergency regulation of killing grey bears 100 to protect biodiversity from the

imminent threat posed by the grey bears is justified as grey bear is an IAS. 101Thus, Arctos has not

violated its obligations under CBD.

95
CBD, supra note 5, art. 8(h); Decision VI/23, supra note 9.
96
Elizabeth A. Chornesky& John M. Randall, The Threat of Invasive Alien Species to Biological

Diversity: Setting a Future Course, 90(1) ANNALS MO. BOTANICAL GARDEN 67, 68 (2003).
97
Kate Wong, Why Florida’s Giant Python Hunting Contest is a Bad Idea, SCI. AM. (Dec. 7,

2012).
98
Michael E. Dorcas et al., Severe mammal declines coincide with proliferation of invasive

Burmese pythons in Everglades National Park, 109(7) PROC. NAT’L ACAD. SCI. 2418, 2419

(2012).
99
Invasive Species Compendium: Boigairregularis (brown tree snake), CENTRE AGRIC. BIOSCI.

INT’L(Nov. 1, 2019).
100
Record ¶21.
101
See Argument I[1][A].
17
 B. Arctos has acted in accordance with the duty to conserve biodiversity.

Under the CBD, parties must conserve biodiversity as whole, and use resources

sustainably102rather than protecting only one particular species. 103 They must prohibit activities

having an adverse impact on natural habitats and biodiversity. 104 Occurrences of bears near

humans are highly dangerous105 and bearsmust be removed to safeguard human life and

property.106 For instance, a bear mauled a human and the Trentino’s governor called killing the

bear ‘an absolute necessity’.107Similarly, grey bears were continuously harming citizens 108 and

their property in Arctos109 and thus,Arctos needed to take action to protect its native biodiversity,

such as the Trouwborst terns.110 Therefore, Arctos has not violated its obligations under the CBD.

3. Arctos has not violated its obligations under the CMS.

Arctos has not violated its obligations under the CMS as it is not a range state [A]and Arctos’ act

is protected under the rule of extraordinary circumstances [B].

102
CBD, supra note 5, art. 1; CBD, supra note 5, art. 8.
103
Decision VII/11, CBD COP 7th mtg., UNEP/CBD/COP/DEC/VII/11 (Apr. 13, 2004).
104
GLOWKA, supra note 55, at 41.
105
Javier Naves, Patterns of brown bear damages on apiaries and management recommendations

in the Cantabrian Mountains, Spain, 13(11) PLOS ONE, Oct. 2018, at 2

106
Jennifer K. Fortin et al, Impacts of Human Recreation on Brown Bears (Ursusarctos): A

Review and New Management Tool, Spain, 11(11) PLOS ONE, Jan. 2016, at 3.
107
Italy official defends killing rare bear after man mauled, BBC (Aug. 14, 2017).
108
Record, ¶17.
109
Record, ¶20.
110
Record, ¶17.
18
 A. Arctos is not a Range State.

A list of Range States is prepared and maintained of all migratory species mentioned in

Appendix I in accordance with Article VI(1) and Article IX(4)(f). 111 The wording of Article VI

clearly leaves it at the volition of the parties to proclaim themselves as Range States for that

particular species.112The objective of the convention is the protection of Appendix I species by

the parties that are “Range States”. 113 Thus, it can be construed that if a state is not a range state,

is not bound by the obligation to protect Appendix I species.Arctos never declared itself to be a

range state for grey bears114 and therefore cannot be termed as a range state.

B. Arctos’ act of killing bears is protected under extraordinary

circumstances.

Under the CMS, range states must control factors that endanger the migratory species. 115

However, this duty is limited to whatever is ‘feasible and appropriate’, giving ample space for

exercise of volition on part of range states. 116 ‘Taking’ of animals, belonging to Appendix I is

111
Agenda Item 6.3: Range States Classification, CMS Scientific Council Activity Planning

Meeting, UNEP/CMS/ScCAP/Doc.7 (June 13, 2009).

112
Range States Classification, CMS Scientific Council 16th mtg., UNEP/CMS/ScC16/Doc 24 at

¶5 (June 28-30, 2010).

113
Simon Lyster, The Convention on the Conservation of Migratory Species of Wild Animals

(The Bonn Convention), 29(4) NAT. RESOURCES J. 987, 981-982 (1989).

114
Record, ¶23.
115
Convention on the Conservation of Migratory Species of Wild Animals, art. III(4)(c), June 6,

1979, 1651 U.N.T.S. 333 [hereinafter CMS].

116
BOWMAN ET AL., LYSTER’S INTERNATIONAL WILDLIFE LAW 549 (2d ed. 2010).
19
allowed under extraordinary circumstances.117 For instance, shooting of bears is allowed in

Slovenia if they attacked humans and native animals. 118Further, farmers are allowed to use

poison baits in United States to control predators.119

Similarly, grey bears have caused damage to plants, killed animals 120 and mauled humans.121

Therefore, Arctos’ conduct of setting out poisoned animal carcasses122 and granting permission to

kill grey bears123 falls within the exception of extraordinary circumstances and thus justified.

117
CMS, supra note 115, art. III(5)(d).
118
ALEKSANDRA MAJIĆSKRBINŠEK & MIHAKROFEL, COUNCIL OF EUROPE, DEFINING,

PREVENTING, AND REACTING TO PROBLEM BEAR BEHAVIOUR IN EUROPE 43 (2015) [hereinafter

ALEKSANDRA].
119
Review of the Ecological Effects of Poisoning on Migratory Birds, CMS Scientific Council,

11th mtg, UNEP/CMS/COP11/Inf.34 (Aug. 29, 2014).

120
Record, ¶17.
121
Record, ¶21.
122
Record, ¶20.
123
Record, ¶21.
20
 4. Arctos has not breached its customary obligation to prevent transboundary

harm.

The duty to ensure that activities carried out in the territory of one state do not cause harm in

another, is recognised by the ICJ,124 and in the Articles on Prevention of Transboundary Harm

from Hazardous Activities.125

Arctos’ actions did not result in transboundary harm as all the elements required to establish

transboundary harm are not satisfied in this case [A]; it has acted in accordance with its due

diligence obligation [B]; and if anything, attempted to remedy the transboundary harm caused by

Ranvicora [C].

A. Arctos’ response measures do not constitute transboundary harm.

Transboundary harm consists of four distinct elements; a physical relationship between the

activity and the damage; human causation; a threshold of severity calling for legal action; and

transboundary movement of harmful effects.126 The first two elements are not in dispute, but the

latter elements are not satisfied in the case of Arctos’ response measures.

a. The harm does not cross the threshold of significance established by

international law.

124
Trail Smelter supra note 44; Gabcikovo, supra note 61; Corfu Channel (U.K. v. Alb.),

Judgment, 1949 I.C.J. 23 (Apr. 9).

125
I.L.C. Transboundary, supra note 43, art. 3 at 154.
126
HANQIN, supra note 45, at 4.
21
Harm is significant if its detrimental effect can be measured by factual and objective standards, 127

and it reaches a level of seriousness.128Frequent sightings of females with cubs in a new area

where bears are emigrating are a reliable sign of expanding population, 129 and lethal removal is

less problematic in cases of expanding populations.130

For instance, brown bears in the outer area of the population were declared unprotected in

Slovenia despite forming ten percent of the population. 131 In this case most of the females in the

introduced population reproduced within the first year of release, 132 making it an expanding

population. The killing of five individual bears and two cubs, 133 therefore, cannot be considered

to cross the threshold of significance.

b. There has been no transboundary movement of harmful effects due to

the response measures.

127
Report of the International Law Commission on the Work of Its Fifty-Third Session, [2001] 2

Y.B. Int’l L. Comm’n 34, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2).

128
Trail Smelter, supra note 44; Lac Lanoux supra note 70, ¶26.
129
Miha Adamic, Expanding Brown Bear Population of Slovenia: A chance for bear recovery in

the Southeastern Alps, 9(2) BEARS: THEIR BIOLOGY AND MGMT. 25, 29 (1997) [hereinafter

Adamic].
130
ALEKSANDRA, supra note 118, at 19.
131
Adamic, supra note 129, at 26.
132
Record, ¶14.
133
Record, ¶¶20, 22.
22
There is no conclusive acceptance of migratory species as a shared natural resource in

international law.134The effect of actions must be felt in a different nation to constitute

transboundary harm.135When the bear M13 from a translocation project in Italy was shot in

Switzerland, it was seen as a national issue to be dealt with by Switzerland. 136Similarly, the grey

bears that were shot or poisoned in Arctos, died within Arctos’ territory, and thus, there is no

transboundary effect on Ranvicora.

B. Arctos has complied with the principle of due diligence.

The duty not to cause transboundary harm is one of conduct and not result, requiring states to act

in accordance with due diligence.137 Procedural obligations such as the duty to conduct an EIA or

notify and consult only arise once there is a determination that there is significant risk of

transboundary harm.138 Thus, as there was no risk of significant transboundary harm, 139 Arctos

was not bound to take any such measures. In any case, Arctos did comply with due diligence, by

134
Cyril De Klemm, Migratory Species in International Law, 29 NAT. RES. J. 952, 953 (1994).
135
HANQIN, supra note 45, at 10.
136
Statement on M13, INTERNATIONAL UNION FOR CONSERVATION OF NATURE (2013).
137
Pulp Mills, supra note 30, ¶¶55, 56; Report of the International Law Commission, U.N.

GAOR, 49th Sess., Supp. No. 10, at 195, 237, U.N. Doc. A/49/10 (1994).
138
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicar.) and

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

2015 I.C.J. Rep.665 ¶105, (Dec. 16, 2015); Brent, The Certain Activities Case: What

Implications for the No Harm Rule, 20ASIA PACIFIC J. ENVTL. L. 28, 48 (2017).
139
See Argument II[4][A][a].
23
asking Ranvicora to capture and remove the bears from the wild, 140 before undertaking lethal

control.

C. Arctos acted to remedy the transboundary harm caused by Ranvicora.

The affected State must take all feasible measures to mitigate and possibly eliminate the effect of

the damage caused,141 and prevent the harm from reaching its full potential.142Such measures are

of an emergency nature,143 and consistent with the precautionary principle.144

Removal of one endangered species is often necessary for the survival of another, as seen in the

case of sea otters and northern abalone in Canada, 145 the San Nicolas Island Fox and the San

140
Record, ¶18.
141
Principle 5(d), International liability for injurious consequences arising out of acts not

prohibited by international law [2006] 2(1) Y.B. Int’l L Comm’n, U.N. Doc

A/CN.4/SER.A/2006/Add.l (Part 2) at 83.

142
Report of the International Law Commission on the work of its forty-sixth session, 2 May - 22

July 1994, [1994] 2(2) Y.B. Int’l L Comm’n, U.N. Doc A/CN.4/SER.A/1994/Add.l (Part 2) at

154.155.
143
HANQIN, supra note 45, at 256.
144
I.L.C. Articles on Responsibility of States for Internationally Wrongful Acts, Report of the

International Law Commission on the Work of its Fifty-Third Session, U.N. GAOR, 56th

Session, Supplement No.10, U.N. Doc. A/56/10 (2001), at 395 [hereinafter ARSIWA].
145
IadineChades et al., Setting Realistic Recovery Targets for Two Interacting Endangered

Species, Sea Otter and Northern Abalone, 26(6) CONSERVATION BIOLOGY 1016, 1016 (2012).
24
Clemente loggerhead shrike;146 and the case of lethal removal of sea lions to protect endangered

Chinook salmon in some states of the United States.147

Similarly, the threat posed to the Trouwborst terns by the grey bears could be significant and

affect its survival, thus necessitating immediate preventive measures in consonance with the

precautionary principle to prevent the threat of extinction from manifesting. Thus, Arctos'

measures are justified as an attempt to eliminate such further damage.

5. Even assuming that Arctos’ response measures caused transboundary harm,

they are precluded from being considered internationally wrongful by operation

of the doctrine of necessity.

Necessity as a ground precluding the wrongfulness of an act has been recognised by the ICJ as

customary international law148 and has also been codified by the International Law

Commission.149 The essential elements for invocation of necessity are that it must be the only

way for the State to safeguard an essential interest against a grave and imminent peril; and must

not seriously impair an essential interest of the State or States towards whom the obligation

exists.150

146
Gary W. Romer & Robert K. Wayne, Conservation in Conflict: The Tale of Two Endangered

Species, 17(5) CONSERVATION BIOLOGY 1251, 1251 (2003).

147
Congress OK's killing more sea lions to preserve salmon, CHINOOK OBSERVER, (Dec. 14,

2018).
148
Gabcikovo, supra note 61, ¶51.
149
ARSIWA, supra note 144, art. 25.
150
Id.
25
Excessive habituation to humans is considered extremely dangerous; Germany and Switzerland,

for instance, when faced with immigrant bears habituated to humans, had to resort to lethal

control.151Further, factors that increase the chances of livestock depredation, such as the

availability of wild prey,152 are outside the control of the government of Arctos. Short term

measures like flashing lights or untrained dogs are known to be ineffective, and conditioning

bears to avoid humans is a costly and time consuming process. 153 Therefore, issuance of the

emergency regulation allowing lethal control was the only way to protect Arctos’ essential

interests.

Additionally, the interest that is sacrificed upon the balance of competing interests must be less

important than the interest sought to be protected. 154 In cases where a species is invasive, and

may lead to widespread extinction of a native species, controlling it may be considered even

when it is endangered in its native environment. 155 For instance, in Spain, Barbary Sheep and

Mouflon, listed as vulnerable by the IUCN; have been enumerated in the list of invasive species

151
AUSTRIAN BEAR EMERGENCY TEAM,JJ1 “Bruno” in Austria and Germany 2006 - Protocol of

events and assessment, (2006) ;Switzerland’s only wild bear is shot, SWI, (Feb 20, 2013).
152
Marit Widman& Katrina Elofsson, Costs of Depredation by Large Carnivores in Sweden

2001 to 2013, 143 ECOLOGICAL ECON. 188, 189 (2017); Roman Gula, Wolf depredation on

domestic animals in the Polish Carpathian Mountains, 72 J. WILDLIFE. MGMT 283, 288 (2008).
153
Approaches to Human Bear Conflict Management, 5 IUCN BEAR SPECIALIST GROUP: HUMAN

BEAR CONFLICT TEAM (2019).

154
Report of the International Law Commission on the Work of its Thirty-Second Session (5

May-25 July 1980), [1980] 2(2) Y.B. Int’l L. Comm’n 34, U.N. Doc.

A/CN.4/SER.A/1980/Add.1 (Part 2).

26
and the possibility of eradication has been envisaged. 156 Similarly, the need to control the

detrimental impact of grey bears, being an IAS; 157outweighs the more general interest in their

conservation. Therefore, Arctos can invoke the doctrine of necessity.

155
Michael P. Marchetti & Tag Engstrom, The Conservation Paradox of Endangered and

Invasive Species, 30(2) CONSERVATION BIOLOGY 434, 434 (2015).

156
Victor Garzon Machado et al., Threat or threatened species? A Paradox in Conservation

Biology, 20 J. NATURAL CONSERVATION. 228, 228 (2012).

157
See Argument I[1][A].
27
 CONCLUSION

In light of these submissions, Arctos requests the Honourable Court to adjudge and declare that

1. Ranvicora violated international law with respect to its grey bear reintroduction project.

2. Arctos did not violate international law with respect to its responses to Ranvicora’s

reintroduction of grey bears.

Respectfully Submitted

/s/_____________

B. Claverina

Minister of Foreign Affairs

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