TEAM CODE: 2171

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, NETHERLANDS

CASE CONCERNING THE PROTECTION OF BATS AND INTERNATIONAL TRADE

MEASURES

FEDERAL STATES OF

ALDUCRA…………………………………………………………………………APPLICANT

REPUBLIC OF

RUNBETI……………………………………………………………………..…RESPONDENT

-WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT-

YEAR 2020

TABLE OF CONTENTS

TABLE OF CONTENTS i

INDEX OF AUTHORITIES v

TREATIES AND CONVENTIONS v

U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS v

JUDICIAL DECISIONS vi

WTO REPORTS viii

ARTICLES AND JOURNALS x

BOOKS, GUIDES AND REPORTS xii

TABLE OF ABBREVIATIONS xv

QUESTIONS PRESENTED xvii

STATEMENT OF JURISDICTION xviii

STATEMENT OF FACTS xix

SUMMARY OF ARGUMENTS xxi

ARGUMENTS ADVANCED 1

I. RUNBETI DID NOT VIOLATE INTERNATIONAL LAW WITH RESPECT TO ITS

WIND FARM PROJECT 1

1. Runbeti acted in accordance with both treaty and customary law provisions 1

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1.1. Runbeti acted in accordance with provisions related to climate change mitigation 1

1.1.1. Runbeti acted in accordance with the UNFCCC and Paris Agreement 2

1.1.2. Runbeti acted in accordance with CMS and EUROBATS, as well as their

Resolutions 2

a. Runbeti acted in line with CMS and EUROBATS 3

b. The provisions of CMS and EUROBATS Resolutions are not legally binding 4

c. Alternatively, if the court shall find CMS and EUROBATS Resolutions binding, Runbeti

claims that it acted in line with its provisions 5

1.2. Runbeti fulfilled its treaty obligations in accordance with the rule of common but

differentiated responsibilities as a developing country 6

1.3. Runbeti did not cause any significant transboundary harm with the wind farm

introduction 8

1.4. Runbeti acted in accordance with due diligence 10

1.4.1. Runbeti fulfilled the due diligence provisions by performing EIA 11

1.4.2. Runbeti fulfilled the due diligence provisions by performing monitoring and

mitigation measures 13

II. ALDUCRA VIOLATED INTERNATIONAL LAW WITH ITS INTERNATIONAL

TRADE MEASURES 15

1. Alducra violated Article VIII of ARTA 15

1.1. Alducra violated the provisions of the of Article VIII(1) of ARTA 16

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1.2. Alducra violated the provisions of Article VIII(2) of ARTA 17

1.2.1. Alducran and Runbeti’s tapagium are like products 17

1.2.2. Imported tapagium from Runbeti is taxed in excess of the domestic Alducran

tapagium 19

1.3. Alducra violated provisions of Article VIII(3) of ARTA 19

1.3.1. Domestic and imported tapagium are like products 20

1.3.2. The measure at issue is a requirement affecting the internal sale, offering for sale,

purchase, transportation, distribution, or use of imported tapagium 20

1.3.3. Imported tapagium is accorded less favorable treatment than like domestic

product 21

2. Runbeti claims that general exceptions are not applicable 22

2.1. Alducra did not fulfill requirements of the two-tier test of Article X of ARTA 22

2.2. Alducra lacks basis for extraterritorial application of the Statute 25

2.3. Relating to the conservation of exhaustible natural resources 26

2.3.1. The Statute is not applied in relation to conservation of exhaustible natural

resources 26

2.3.2. The Statue was not applied in conjunction with restrictions on domestic products

27

2.4. Alducra`s action was unnecessary to protect animal life or health 28

2.4.1. The importance of interests or values at stake is not high 28

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2.4.2. The Statute was ineffective in reaching the goal and disproportionate to the level

of limitation posed to international trade 29

2.4.3. There were better alternative measures for Alducra to reach the goal 29

PRAYER 30

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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

1. Agreement on the Conservation of Populations of European Bats, 1991, 1863 UNTS 101.

…………………………………………………………………………………...……...…7, 12

2. Convention on Biological Diversity, 1992, 1760 U.N.T.S. 79. ……………………6, 11-13, 25

3. Convention on International Trade in Endangered of Wild Fauna and Flora, 1973, 993

U.N.T.S. 243. ……………………………………………………………………………...…14

4. Convention on the Conservation of Migratory Species of Wild Animals, 1979, 1651 U.N.T.S.

333. …………………………………………………………………………………….…...3, 6

5. Paris Agreement to the United Nations Framework Convention on Climate Change, 2015,

T.I.A.S. No. 16-1104. ………………………………………………………………….……...2

6. United Nations Framework Convention on Climate Change, 1992, 1771 U.N.T.S. 107.

…………………………………………………………………………………….………….21

7. Vienna Convention on the Law of Treaties, 1969, 1155 U.N.T.S. 331. …………………..…...6

U.N. DOCUMENTS AND OTHER INTERNATIONAL DOCUMENTS

8. Resolution 11.27, Renewable Energy and Migratory Species, 2014, UNEP/CMS/Resolution

11.27(COP13). …………………………………………………………………………….7, 11

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9. Resolution 11.6, Review of decisions, 2014, UNEP/CMS/Resolution 11.6 (Rev.COP12).

…………………………………………………………………………………………….…...4

10. Resolution 12.21, Climate Change and Migratory Species, 2017, UNEP/CMS/Resolution

12.21 (COP12). ………………………………………………………………………..………5

11. Resolution 7.5, Wind Turbines and Migratory Species, 2017, UNEP/CMS/Resolution 7.5

(Rev.COP12). …………………………………………………………..……………..…..5, 12

12. Resolution 8.4, Wind Turbines and Bat Populations, 2018, EUROBATS.MoP8.Resolution8.4.

…………………………………………………………………………………….…...5, 11, 14

13. United Nations Conference on Trade and Employment, Havana Reports, p. 62;

E/CONF.2/C.3/A/W.30 (Nov. 21, 1947). ……………………………………………………20

14. United Nations Conference on Environment and Development, Rio Declaration on

Environment and Development, 1992, UN Doc. A/CONF.151/26/Rev.1. ………………11, 25

15. WTO rules and environmental policies: key GATT disciplines, WTO,

https://www.wto.org/english/tratop_e/envir_e/envt_rules_gatt_e.htm (last visited Nov. 10,

2020). ………………………………………………………………………………………..18

JUDICIAL DECISIONS

16. Application of the Convention on the Prevention and Punishment of the Crime of Genocide

(Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I),

p.128…………………………………………………………………………………………...8

17. Case concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J.

Reports 2010, p.14. …………………………………………………………………8, 9, 11, 12

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18. Case Concerning the Gabcıkovo-Nagymaros Project (Hungary/Slovakia), Judgement, I.C.J.

Reports 1997. …………………………………………………………………………………...

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

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

Judgment, I.C.J. Reports 2015, p.665. ………………………………………………………...9

20. Corfu Channel case, Judgment on Preliminary Objection, I.C.J., Reports 1984, p.15.

….…………………………………………………………………………………………...8, 9

21. Indus Water Kishenganga (Pakistan v. ), (Perm. Ct. Arb. 2013). ……………………….11

22. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J., Reports 1996,

p.226. …………………………………………………………………………………….11, 12

23. Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009,

p.61. …………………………………………………………………………………………...8

24. Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection,

Judgment, 2015, I.C.J. Reports 2015, p.592. ………………………………………………….5

25. Responsibilities and obligations of States with respect to activities in the Area, Advisory

Opinion, 1 February 2011, ITLOS Reports 2011, p.10……………………………………….11

26. The Iron Rhine (“Ijzeren Rijn”) Railway (Belgium v. Netherlands.), (Perm. Ct. Arb. 2005).

………………………………………………………………………………………………..12

27. Trail Smelter Arbitration (USA v. Canada), 3U.N. Rep Int’l Arb Awards 1905 (1941), p.1965.

……………………………………………………………………………………..………8, 11

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WTO REPORTS

28. Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WTO Doc.

WT/DS332/AB/R, (adopted Dec. 3, 2007). …………..……………………..……22, 23, 28, 29

29. Appellate Body Report, Canada – Certain Measures Concerning Periodicals, WTO Doc.

WT/DS31/AB/R (adopted Jun. 13, 1997). ……………………………………..….…………17

30. Appellate Body Report, – Measures Related to the Exportation of Rare Earths, Tungsten,

and Molybdenum, WTO Doc. WT/DS431/R, WT/DS432/R, WT/DS433/R (adopted Aug. 7,

2014). ……………………………………………………………………..……….…26, 27, 28

31. Appellate Body Report, Colombia – Measures Relating To The Importation Of Textiles,

Apparel And Footwear, WTO Doc. WT/DS461/RW, (adopted Oct. 5, 2018).

………………………………………………………………………………………………28

32. Appellate Body Report, European Communities – Measures Prohibiting The Importation And

Marketing Of Seal Products, WTO Doc. WT/DS400/AB/R, WT/DS401/AB/R (adopted May

22, 2014). …………………………………………………………………….…………21, 22

33. Appellate Body Report, European Communities – Measures Affecting Asbestos and Products

Containing Asbestos, WTO Doc. WT/DS135/AB/R, (adopted March 12, 2001). …..…20, 29

34. Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WTO Doc.WT/DS8/AB/R,

WT/DS10/AB/R, WT/DS11/AB/R, (adopted Oct. 4, 1996). ………..……………….…17, 26

35. Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled and Frozen

Beef, WTO Doc. WT/DS161/AB/R, WT/DS169/AB/R (adopted Dec. 11, 2000). ………….19

36. Appellate Body Report, – Import Prohibition of Certain Shrimp and Shrimp

Products, WTO Doc. WT/DS58/AB/R, (adopted Oct. 12, 1998). …..…..……23, 24, 25, 26, 27

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37. Appellate Body Report, United States – Standards for Reformulated and Conventional

Gasoline, WTO Doc. WT/DS2/AB/ (adopted Apr. 29, 1996). ……………...……………22, 26

38. Appellate Body Report, United States – Certain Country of Origin Labelling (COOL)

Requirements, WTO Doc. WT/DS384/AB/RW, WT/DS386/AB/RW (adopted Jun. 29, 2012).

……………………………………………………………………………………………..…21

39. Appellate Body Report, United States – Measures Affecting the Cross-Border Supply of

Gambling and Betting Services, WTO Doc. WT/DS285/AB/R (adopted Apr. 7, 2005).

…………………………………………………………………………………………..……28

40. Panel Report, India – Measures Affecting the Automotive Sector, WTO Doc. WT/DS146/R,

WT/DS175/R (adopted Dec. 21, 2001). …………………………………………………...…21

41. Panel Report, Indonesia – Certain Measures Affecting the Automobile Industry, WTO Doc.

WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R (adopted Jul. 2, 1998). ……………17

42. Panel Report, Italian Discrimination against Imported Agricultural Machinery, WTO Doc.

L/833 - 7S/60 (adopted Oct. 23, 1958).

……………………………………………………………………………………………20, 21

43. Panel Report, Japan – Customs Duties, Taxes and Labelling Practices on Imported Wines and

Alcoholic Beverages, WTO Doc. L/6216 - 34S/83 (adopted Nov. 10, 1987).

…………………………………………………………...... 16, 19

44. Panel Report, Philippines – Taxes on Distilled Spirits, WTO Doc. WT/DS396/R,

WT/DS403/R (adopted Dec. 21, 2011). …………………………………………………...…17

45. Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, WTO Doc.

DS23/R - 39S/206, (adopted Jun. 19, 1992). ……………………….………………….…15, 18

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46. Panel Report, United States – Measures Affecting the Importation, Internal Sale and Use of

Tobacco, WTO Doc. WT/DS44/R (adopted Oct. 4, 1994). ……………………………..……15

47. Panel Report, United States – Restrictions on Imports of Tuna, WTO Doc. WT/DS21/R

(Unadopted). …………………………………………………………..…………18, 21, 23, 29

48. Panel Report, United States – Taxes on Automobiles, WTO Doc. WT/DS31/R (adopted Oct.

11, 1994). ……………………………………………………………………………….……16

49. Panel Report, United States – Section 337 of the Tariff Act of 1930, WTO Doc. L/6439 -

36S/345 (adopted Nov. 7, 1989). ……………………………………………………….……17

50. Panel Report, United States – Prohibition of Imports of tuna and tuna products from Canada,

WTO Doc. L/5198 - 29S/91 (adopted Feb. 22, 1982).

………………………………………………………………………………………….…….24

51. Panel Reports, China – Measures Related To The Exportation Of Rare Earths, Tungsten, And

Molybdenum, WTO Doc. WT/DS431/R, WT/DS432/R, WT/DS433/R (adopted Mar. 26,

2014). ……………………………………………………………………………………..…23

ARTICLES AND JOURNALS

52. Alberto Rojas-Martínez et al. Frugivory diet of the lesser long-nosed bat (Leptonycteris

yerbabuenae), in the Tehuacán Valley of central . THERYA, 3(3), Dec. 2012, p.372.

………………………………………………………………………………………..………24

53. Arie Trouwborst, Transboundary Wildlife Conservation in A Changing Climate: Adaptation

of the Bonn Convention on Migratory Species and Its Daughter Instruments to Climate

Change, 4 Diversity, Jun. 2012, p.266. ………..………………………………………………4

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54. Barthelmie, R., Pryor, S., Potential contribution of wind energy to climate change mitigation.

Nature Clim Change, 2014, pp.684–688. ………………….…………………………………4

55. Christopher D. Stone, Common But Differentiated Responsibilities in International Law, 98

American Journal of International Law, Apr. 2004, supra note 8, p.278. ………...……………7

56. David W. Keith et al., The influence of large-scale wind power on global climate, 101 Proc

Natl Acad Sci U S A, Nov. 2004, pp.16115-16120. …………………………………………2

57. Duncan French, Developing States and International Environmental Law: The Importance of

Differentiated Responsibilities, 49 The International and Comparative Law Quarterly, Jan.

2000, p.40. …………………….………………………………………………………………6

58. Emma P. Gómez-Ruiz, Climate change, range shifts, and the disruption of a pollinator-

complex, 9 Sci Rep, Oct. 2019, pp.1-8. ………………………………………………………25

59. Glenn Althor et al., Global mismatch between greenhouse gas emissions and the burden of

climate change, 6 Sci Rep, Feb. 2016, pp.1-4. ……………..………………………………….7

60. Hayley A. Sherwin et. al., The impact and implications of climate change for bats, Mammal

Rev., 2012, p. 6,172. ………………………………………………………………………..3, 9

61. M. Teague O’Mara et al., Common noctules exploit low levels of the aerosphere, 6 Royal

Society Open Science, Feb. 2019, p.7. ………………………………..………………….10, 14

62. Robert Robinson et al., Travelling through a warming world: climate change and migratory

species, 7 ESR, Jan. 2009, p.8. ...………………………………………………………………3

63. S. Msahli et al., Evaluating the Fineness of Americana L. Fibers, 75 Textile Research

Journal, Jul. 2005, pp.540-543. ………………………………………………………………29

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BOOKS, GUIDES AND REPORTS

64. Alexandre Kiss & Dinah Shelton, Guide to International Environmental Law 89 - 100 (2007).

65. Bradley J. Condon, Environmental Sovereignty and the WTO: Trade Sanctions and

International Law 90 (2006). …………………………………………………………………...

66. Caroline E. Foster, Science and the Precautionary Principle in International Courts and

Tribunals: Expert Evidence, Burden of Proof and Finality 18-21 (2011). ………………………

67. Chris D. Hein et al., Wildlife and Wind Farms, Conflicts and Solutions: Vol. 2 Onshore

Monitoring and Mitigation 31 - 36 (Martin R. Perrow ed.) (2017). ……………………………..

68. Christiane R. Conrad, Process and Production Methods (PPMs) in WTO Law: Interfacing

Trade and Social Goals 382, 383 (2011). ……………………………………………………….

69. Clean Energy Can Meet 90% of Paris Energy-Related Goals, UNFCCC: REPORT (Jul. 5,

2017) https://unfccc.int/news/clean-energy-can-meet-90-of-paris-energy-related-goals.

……………………………………………………………………………...... 2

70. GATT Working Party Report, Border Tax Adjustments, WTO Doc. L/3464 (adopted 2 Dec. 2

1970) BISD 18S/97. …………………………………………………………………………17

71. Jens Rydell et al., The Effect Of Wind Power On Birds And Bats – A Synthesis, Report 6511,

Aug. 2012, p.96. ….………………………………………………………………………….10

72. Lyle Glowka et al., A Guide to the Convention on Biological Diversity, IUCN GLAND AND

CAMBRIDGE, 1994, p.26. .………………………………………………………………8, 13

73. Patricia Birnie et al., International Law and the Environment 185 (3rd ed., 2009). ……………8

74. Philippe Sands, Principles of International Environmental Law 881 (4th ed., 2018). …………6

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75. Robert M. R. Barclay et al., Wildlife and Wind Farms, Conflicts and Solutions: Vol. 1 Onshore

Potential Effects 191 - 213 (Martin R. Perrow ed.) (2017). ……………………………………..

76. Robert W. Fraser et al., The WTO and Environment - Related International Trade Disputes:

Biosecurity and Ecosystem Services Risk 61, 62 (2019). ………………………………………

77. Simon Baughen, International Trade and the Protection of the Environment 33 (2007).

…………………………………………………………………………………………..……25

78. Ulrich Beyerlin & Thilo Marauhn, International Environmental Law 5, 6, 429, 434 (2011).

…………………………………………………………………………………………………..

79. US Department of Energy, Office of energy efficiency and renewable energy: Wind

Technologies Market Report. 57-64 (2016). ………………………………………………….7 MISCELLANEOUS

80. 2MW Platform, Vestas: Technical Specifications, https://www.vestas.com/en/products/2-mw-

platform/v110-2_0_mw#!technical-specifications (last visited Nov. 10, 2020). …………….10

81. , Bat Friendly: Agaves&Bats, https://www.batfriendly.org/agaves-eng/ (last visited

Nov. 10, 2020). ………………………………………………………………………...……29

82. Charlotte Epstein, CBDR, Encyclopædia Britannica (Dec. 29, 2015),

https://www.britannica.com/topic/common-but-differentiated-responsibilities. ……….…….7

83. Climate change and bats, https://www.merlintuttle.org/climate-change-and-bats/, (Feb. 14,

2019). …………………………………………………………………………………………3

84. CMS Anniversary Timeline, https://www.cms.int/en/about/cms-40 (last visited Nov. 10,

2020). …………………………………………………………………………………………2

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85. Extensive, Cambridge English Dictionary (n.d.),

https://dictionary.cambridge.org/dictionary/english/extensive (last visited Oct. 7,

2020).………………………………………………………………………………...………12

86. Introduction to the Agreement,

https://www.eurobats.org/about_eurobats/introduction_to_agreement (last visited Nov. 10,

2020). …………………………………………………………………………………………2

87. Making Wind Energy Safer for Bats, American Wind Wildlife Institute: Wind-Wildlife

Success Stories, https://awwi.org/news-events/success-stories/success-story-bats/ (last visited

Nov. 10, 2020). …………………………………………………………………………..……3

88. John A. Mathews, Developing countries and the renewable energy revolution, OECD (May

17, 2016), http://www.oecd.org/dev/developing-countries-and-the-renewable-energy-

revolution.htm. …………………………………...... 7

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TABLE OF ABBREVIATIONS

1. & And

2. ¶ Paragraph

3. ABR Appellate Body Report

4. Alducra The Federal States of Alducra

5. ARTA Architerpo Regional Trade Agreement

6. C. Clarification to the Stetson Record

7. CBD Convention on Biological Diversity

8. CBDR Common but Differentiated Responsibilities

9. CIL Customary International Law

10. CITES Convention on International Trade in Endangered Species of Wild Fauna

and Flora

11. CMS Convention on Migratory Species

12. Court International Court of Justice

13. Doc. Document

14. EIA Environmental Impact Assessment

15. Et al. Et Alia/and Others

16. EUROBATS Agreement on the Conservation of Populations of European Bats

17. GATT General Agreement on Trade and Tariffs

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18. GHGs Greenhouse Gasses

19. Ibid. Ibidem/In the Same Place

20. IUCN The International Union for Conservation of Nature and Natural

Resources

21. NDCs Nationally Determined Contributions

22. p. Page

23. pp. Pages

24. PPM Process and Production Method

25. PR Panel Report

26. R. Stetson Record

27. Runbeti Republic of Runbeti

28. Statute Alducran Statute of November 2019

29. Rio United Nations Conference on Environment and Development at

Declaration Rio De Janeiro

31. UNFCCC United Nations Framework Convention on Climate Change

32. WTO World Trade Organization

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QUESTIONS PRESENTED

I. WHETHER THE ACTIONS OF RUNBETI VIOLATED INTERNATIONAL LAW WITH

RESPECT TO ITS WIND FARM PROJECT?

II. WHETHER ALDUCRA VIOLATED INTERNATIONAL LAW WITH RESPECT TO ITS

INTERNATIONAL TRADE MEASURES?

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STATEMENT OF JURISDICTION

The Federal States of Alducra (“Alducra”) and the Republic of Runbeti (“Runbeti”) have submitted by Special Agreement their differences concerning questions relating to the Runbeti's wind farm project and Alducra's international trade measures and transmitted a copy thereof to the

Registrar of the International Court of Justice (“Court”). The Registrar acknowledged receipt of the notification of the Parties regarding this matter. Therefore, Alducra and Runbeti have accepted the jurisdiction of the Court pursuant to Article 40(1) of the Statute of the International Court of

Justice.

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STATEMENT OF FACTS

Runbeti and Alducra are neighboring sovereign states, located on the continent of Architerpo.

While both countries’ economies rely heavily on agriculture, Alducra is considered to have a developed and Runbeti a developing economy.1

Runbeti is a country well known for producing and exporting tapagium, agave spirit, similar to .2 To meet the growing demand, both countries have adapted their practices of agave farming.3 Besides Architerpan long nosed bat, which feeds on and pollinates agaves, royal noctule is another bat species that lives in both countries, is endemic to Architerpo and protected under several international agreements.4

To meet its commitments under the Paris Agreement, Runbeti submitted its first Nationally

Determined Contributions (“NDCs”), which included the subsidy program for later approved wind farm project. Since part of the proposed location was a known royal noctule migration route,5 an extensive Environmental Impact Assessment (“EIA”) has been conducted6 and regional bat

1 R.¶1.

2 R.¶11.

3 R.¶15.

4 R.¶14.

5 R.¶17.

6 R.¶19.

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conservation group Chiroptera Crusaders was allowed to monitor the area to determine the wind farm’s impact on the bats.7

Disregarding Runbeti’s sovereign right to use its natural resources Alducra accused it of violating conventional and customary international law (“CIL”) and demanded immediate shut down of the wind farm.8

Alducra passed a Statute to institute protectionist and retaliatory international trade restrictions related to the import and sale of tapagium.9 A 20% tax and labelling requirement for all tapagium sold in Alducra are provisions that clearly favor and give advantage to Alducra’s domestic products. Alducra insisted that the legislation was enacted to protect the environment, bats, and farmers and declined to repeal the Statute.10

After further negotiations between Alducra and Runbeti failed to resolve the dispute, the two countries entered into a Special Agreement to institute proceedings before the Court.11

7 R.¶20.

8 R.¶22.

9 R.¶¶26,27.

10 R.¶28.

11 R.¶29.

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SUMMARY OF ARGUMENTS

I. RUNBETI DID NOT VIOLATE INTERNATIONAL LAW WITH ITS

WIND FARM PROJECT

Runbeti acted in accordance with climate change mitigation provisions, common but differentiated responsibility (“CBDR”) provisions, significant transboundary harm provisions and due diligence provisions entailed in the United Nations Framework Convention on Climate Change

(“UNFCCC”), Paris Agreement, Convention on Biological Diversity (“CBD”), Convention on the

Conservation of Migratory Species of Wild Animals (“CMS”), CMS Resolution 7.5., CMS

Resolution 11.27, Agreement on the Conservation of Populations of European Bats

(“EUROBATS”) and EUROBATS Resolution 8.4, as well as CIL. However, Runbeti is not bound by the provisions of CMS and EUROBATS Resolutions, because they are not binding.

II. ALDUCRA VIOLATED INTERNATIONAL LAW WITH ITS

MEASURES.

Alducra violated Article VIII(1,2,3) of the Architerpo Regional Trade Agreement (“ARTA”).

Firstly, the Statute affords protection to domestic production. Secondly, it excessively taxes like imported products and lastly, subjugates imported products to less favorable treatment. Moreover, the general exceptions are not applicable in the case at hand, because Alducra did not fulfill requirements of the two-tier test of Article X of ARTA. Alternatively, the Statute should not be

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applied extraterritorially, it was not in relation to conservation measures and it was not necessary to protect animal life or health.

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ARGUMENTS ADVANCED

I. RUNBETI DID NOT VIOLATE INTERNATIONAL LAW WITH

RESPECT TO ITS WIND FARM PROJECT

1. Runbeti acted in accordance with both treaty and customary law provisions

Runbeti acted in accordance with climate change mitigation provisions [1.1.], CBDR provisions

[1.2.], significant transboundary harm provisions [1.3.] and due diligence provisions [1.4.] entailed in the UNFCCC, Paris Agreement, CBD, CMS, CMS Resolution 7.5., CMS Resolution 11.27,

EUROBATS and EUROBATS Resolution 8.4, as well as in CIL.

1.1. Runbeti acted in accordance with provisions related to climate change

mitigation

Runbeti is bound to mitigate the effects of climate change not only as a party to the UNFCCC and the Paris Agreement [1.1.1.];12 but also as a party to CMS and EUROBATS, as well as their

Resolutions [1.1.2.].13

12 R.¶8.

13 R.¶¶6,7.

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1.1.1. Runbeti acted in accordance with the UNFCCC and Paris Agreement

The UNFCCC and the Paris Agreement establish binding commitments by all parties to prepare

NDCs and to pursue corresponding domestic measures.14 To meet this obligation Runbeti has submitted its NDCs, that included the subsidy program for approved alternative energy projects.15

Article 4 of Paris Agreement requests from parties to lower their Greenhouse Gasses (“GHG”) as soon as possible,16 which can only be reduced with the massive deployment of renewable forms of energy, such as wind.17 Consequently, Runbeti’s wind farm project presents the best form of compliance with its obligations to mitigate climate change.

1.1.2. Runbeti acted in accordance with CMS and EUROBATS, as well as their

Resolutions

Since CMS and EUROBATS have been adopted more than three decades ago,18 they do not explicitly include provisions related to climate change. However, CMS and EUROBATS resolutions that were passed later address this problem.

14 United Nations Framework Convention on Climate Change, Article 4, 1992, 1771 U.N.T.S. 107; Paris Agreement,

Article 4, Apr. 22, 2015 [“Paris Agreement”].

15 R.¶16.

16 Paris Agreement, Article 4.

17 Clean Energy Can Meet 90% of Paris Energy-Related Goals, UNFCCC: REPORT (2017) https://unfccc.int/news/clean-energy-can-meet-90-of-paris-energy-related-goals; David W. Keith et al., The influence of large-scale wind power on global climate, 101 Proc Natl Acad Sci U S A, Nov. 2004, pp.16115-16120.

18 CMS Anniversary Timeline, https://www.cms.int/en/about/cms-40 (Nov. 10, 2020); Introduction to the Agreement, https://www.eurobats.org/about_eurobats/introduction_to_agreement (Nov. 10, 2020).

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a. Runbeti acted in line with CMS and EUROBATS

It must be stressed that climate change presents an especially significant threat for migratory species.19 Being aware of that, Runbeti has taken action in order to protect and conserve its royal noctule, a type of bat,20 belonging to the aerial hawking species,21 which are expected to be highly sensitive to climatic changes.22 In doing so, Runbeti has shown the acknowledgement of the importance of migratory species being conserved, which is listed at the very beginning of the fundamental principles of the CMS.23

In relation to protection of bats, it must be noted that according to Dr. Hein, former Director of the

Wind Energy Program at Bat Conservation International, climate change is one of the greatest dangers facing bats today.24 Recent examples of massive die-offs can be traced back in 2018, when more than 23,000 bats died of heat stroke during only two days of severe heat in ,25 or when some of 250,000 bats drowned as a result of the hurricane.26 These cases show that

19 Robert Robinson et al., Travelling through a warming world: climate change and migratory species, 7 ESR, 2009, p.8.

20 R.¶14, C., A11.

21 Hayley A. Sherwin et. al., The impact and implications of climate change for bats, Mammal Rev., 2012, p.6.

22 Ibid.

23 Convention on the Conservation of Migratory Species of Wild Animals, Article II/1, 1979, 1651 U.N.T.S. 333

[“CMS”].

24 Making Wind Energy Safer for Bats, American Wind Wildlife Institute: Wind-Wildlife Success Stories, https://awwi.org/news-events/success-stories/success-story-bats/ (Nov. 10, 2020).

25 Climate change and bats, https://www.merlintuttle.org/climate-change-and-bats/ (2019).

26 Ibid.

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climate change impacts bat populations in significantly greater numbers than the 356 fatalities

Runbeti was accused of causing with the wind farm.27

Based on the rate of tragedies occurring in the last decades as a result of the climate crisis, together with scientific recognition of the potential of wind energy development for reducing GHGs,28

Runbeti has determined that building the wind farm will bring the greatest benefit to the conservation and protection of bats.

b. The provisions of CMS and EUROBATS Resolutions are not legally binding

Under CMS Resolution 11.6,29 the term “Resolution” was defined, stating that its goal is to provide long-lasting guidance for the interpretation and application of the CMS.30 Since CMS resolutions are only a guiding document,31 Runbeti is not bound by their provisions.

27 R.¶21.

28 Barthelmie, R., Pryor, S., Potential contribution of wind energy to climate change mitigation. Nature Climate

Change, 2014, pp.684–688.

29 Resolution 11.6, Review of decisions, ¶1 2014, UNEP/CMS/Resolution 11.6 (Rev.COP12).

30 Ibid.

31 Arie Trouwborst, Transboundary Wildlife Conservation in A Changing Climate: Adaptation of the Bonn Convention on Migratory Species and Its Daughter Instruments to Climate Change, 4 Diversity, 2012, p.266.

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EUROBATS Resolution 8.4 includes the language of recommendations,32 suggesting that the relevant part of the provisions is non-binding. As such, they are not capable of creating obligations on its addressees33 and indicate that Runbeti is not under an obligation to execute them.34

c. Alternatively, if the court shall find CMS and EUROBATS Resolutions binding, Runbeti

claims that it acted in line with its provisions

CMS Resolution 12.21 recognizes in the very beginning that in order to reach the CMS’s objectives, the action is urgently required so as to help migratory species adapt to climate change.35

Similarly, the preamble of CMS Resolution 7.5 identifies the importance of reducing climate change for the long-term survival of migratory species.36 EUROBATS Resolution 8.4. notes the importance of wind energy in the context of combating global warming and its contribution to the protection of species from its potentially negative impacts in the preamble as well.37

32 Resolution 8.4, Wind Turbines and Bat Populations, preamble, 2018, EUROBATS.MoP8.Resolution8.4, ¶¶1-15

[“EUROBATS Resolution 8.4”].

33 Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile), Preliminary Objection, Judgment, I.C.J.

Reports 2015, p. 592, ¶95.

34 Ibid., ¶171.

35 Resolution 12.21, Climate Change and Migratory Species, preamble, 2017, UNEP/CMS/Resolution 12.21 (COP12).

36 Resolution 7.5, Wind Turbines and Migratory Species, preamble, 2017, UNEP/CMS/Resolution 7.5 (Rev.COP12)

[“CMS Resolution 7.5”].

37 EUROBATS Resolution, 8.4, preamble.

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Taking into account the rules of the Vienna Convention on the Law of Treaties, the preamble of the treaty comprises the context for the treaty interpretation.38 Since combating climate change permeates provisions of the said agreements, which accordingly operate towards this end, Runbeti has acted in compliance with the mentioned resolutions.

1.2. Runbeti fulfilled its treaty obligations in accordance with the rule of

common but differentiated responsibilities as a developing country

The international responsibilities of developing states in environmental law differentiates from those of developed ones, which can be recognized by contextual norms in several international legal documents.39 CBD, which repeatedly uses the phrase “as far as possible and as appropriate”,40 sets different expectations for developing countries.41 Economic and social development are the first and overriding priorities of the developing countries.42 Similarly, as part of the fundamental principles of CMS,43 parties acknowledge the need to take action in order to conserve migratory species “whenever possible and appropriate”. The wording “as appropriate” is also used in CMS

38 Vienna Convention on the Law of Treaties, Article 31(2), 1969, 1155 U.N.T.S. 331.

39 Duncan French, Developing States and International Environmental Law: The Importance of Differentiated

Responsibilities, 49 The International and Comparative Law Quarterly, Jan. 2000, p.40; Philippe Sands, Principles of

International Environmental Law 881 (4th ed., 2018), p.233.

40 Convention on Biological Diversity, Articles 7, 8, 1992, 1760 U.N.T.S. 79 [“CBD”].

41 Ibid, preamble.

42 CBD, Article 20(4).

43 CMS, Article II(1).

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Resolution.44 Finally, the obligation under EUROBATS45 should be fulfilled “in accordance with economic and social situations”.

With wind energy being one of the cheapest sources of electricity,46 building a wind farm can benefit not only the environment, but also helps to accelerate industrial development47 of developing countries, which have a high "climate vulnerability".48 As a developing country49

Runbeti has acted in line with the above-mentioned norms, which are according to the CBDR interpreted as Runbeti being expected to fulfill the measures based on its respective capabilities, different from the ones of developed countries.50

44 Resolution 11.27, Renewable Energy and Migratory Species, ¶3, 2014, UNEP/CMS/Resolution 11.27(COP13)

[“CMS Resolution 11.27”].

45 Agreement on the Conservation of Populations of European Bats, Article III, 1991, 1863 UNTS 101

[“EUROBATS”].

46 US Department of Energy, Office of energy efficiency and renewable energy: Wind Technologies Market Report.

57-64 (2016).

47 John A. Mathews, Developing countries and the renewable energy revolution, OECD (2016), http://www.oecd.org/dev/developing-countries-and-the-renewable-energy-revolution.htm.

48 Glenn Althor et al., Global mismatch between greenhouse gas emissions and the burden of climate change, 6 Sci

Rep, 2016, pp.1-4.

49 R.¶1.

50 Charlotte Epstein, CBDR, Encyclopædia Britannica (2015), https://www.britannica.com/topic/common-but- differentiated-responsibilities; Christopher D. Stone, Common But Differentiated Responsibilities in International

Law, 98 American Journal of International Law, 2004, supra note 8, p.278.

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1.3. Runbeti did not cause any significant transboundary harm with the wind

farm introduction

According to the no-harm rule, directly addressed in Article 3 of CBD, Runbeti is required to act with due diligence in doing its best to prevent significant transboundary harm.51 The prohibition of transboundary environmental harm is also a principle of CIL,52 based on which no State has the right to use or permit the use of its territory in such a manner as to cause injury to the territory of another State.53

Following the established principle of actori incumbit probatio,54 the burden of proof is on the applicant, who needs to establish the existence of facts that it asserts.55

There is no definition of what constitutes environmental harm by neither treaty nor CIL.56 Despite

Alducra’s claims that the harm is the negative effect imposed on the royal noctule,57 it is unclear

51 Lyle Glowka et al., A Guide to the Convention on Biological Diversity, IUCN GLAND AND CAMBRIDGE, 1994, at. 26.

52 Corfu Channel case, Judgment on Preliminary Objection, I.CJ., Reports 1984, p. 15, ¶22 [“Corfu Channel”].

53 Trail Smelter Arbitration (USA v. Canada), 3U.N. Rep Int’l Arb Awards 1905 (1941), p.1965 [“Trail Smelter].

54 Maritime Delimitation in the Black Sea (Romania v. Ukraine), Judgment, I.C.J. Reports 2009, p.61, ¶68; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007 (I), p.128, ¶204.

55 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010, p.14, ¶162 [“Pulp Mills”].

56 Patricia Birnie et al., International Law and the Environment 185 (3rd ed., 2009).

57 R.¶22.

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that the actual damage to the species is caused by Runbeti’s actions. Bat mortalities can be caused by many different factors, the major cause being climate change58 or other natural events.59

Runbeti claims that the occurrence of deceased bats does not qualify as significant harm under no- harm rule since this rule is breached only when harm inflicts significant damage to the environment.60 The threshold for such damage is undefined and determined on a case by case basis.

Alducra does not provide any direct61 convincing62 evidence, that the wind farms constitute significant transboundary harm to the environment.63 Circumstantial evidence, as recognized in the Corfu Channel case, cannot be used in the case at hand, because Alducra did not exercise territorial control, as did Albania.64 Alducra had access to the evidence only indirectly through

Chiroptera Crusaders.65

58 Hayley A. Sherwin et al., supra note 21, p.172.

59 Ibid.

60 Pulp Mills, ¶101.

61 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a

Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, I.C.J. Reports 2015, p.665, ¶¶197-

207.

62 Ibid., ¶¶113-120.

63 R.¶23.

64 Corfu Channel, p.18.

65 R.¶20.

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It should be noted that Runbeti’s wind farm is designed in a way not to pose danger to the royal noctule, as its wind turbines are approximately 115 meters high.66 Namely, the royal noctule67 flies at the height of 40-50 meters,68 which means that the danger of collision or other damage is unlikely. Additionally, the blades of a 2.0 MW wind turbine are usually around 50 meters long, which is also above the flying height of royal noctule.69 Most other bat species fly lower, so they are even less likely to be threatened by the wind turbines.70

1.4. Runbeti acted in accordance with due diligence

Runbeti fulfilled all requirements under the due diligence provisions, referring to EIA [1.4.1.], as well as monitoring and mitigation measures [1.4.2.].

66 R.¶17.

67 Ibid., ¶14.

68 M. Teague O’Mara et al., Common noctules exploit low levels of the aerosphere, 6 Royal Society Open Science,

2019, p.7.

69 2MW Platform, Vestas: Technical Specifications, https://www.vestas.com/en/products/2-mw-platform/v110-

2_0_mw#!technical-specifications (Nov. 10, 2020).

70 Jens Rydell et al., The Effect Of Wind Power On Birds And Bats–A Synthesis, Report 6511, 2012, p.96.

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1.4.1. Runbeti fulfilled the due diligence provisions by performing EIA

Due diligence standard exists as an obligation under CIL71 as well as in treaty law provisions.72 To satisfy due diligence standard in preventing significant environmental transboundary harm,73

States must undertake an EIA,74 before the beginning of potentially harmful activity, as stated in

Pulp Mills (preventative principle).75 Furthermore, lack of scientific evidence should not preclude states from preventing serious or irreversible harm (precautionary principle).76 No relevant77 treaty nor CIL include rules on the required content of EIA and its scope, which means that it is within the country's appreciation to decide the content thereof.78 Treaty provisions relating to due diligence recommend pre- and post-construction EIA,79 urge for careful physical planning,80 call

71 Responsibilities and obligations of States with respect to activities in the Area, Advisory Opinion, 2011, ITLOS

Reports 2011, p. 10, ¶131.

72 CBD, Article 3.

73 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J., Reports 1996, p.226, ¶29 [“Nuclear

Weapons”]; Trail Smelter, p.1965.

74 Indus Water Kishenganga (Pakistan v. India), ¶450 (Perm. Ct. Arb. 2013).

75 Pulp Mills, ¶205.

76 United Nations Conference on Environment and Development, Rio Declaration on Environment and Development,

Principle 15, 1992, UN Doc. A/CONF.151/26/Rev.1 [“Rio Declaration”].

77 C., A2.

78 Pulp Mills, ¶205.

79 EUROBATS Resolution 8.4, ¶¶1,2,6.

80 CMS Resolution 11.27, ¶3.

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upon precautionary principle,81 oblige protection from damage82 and identification of species needing conservation and activities that pose risk to conservation.83

Runbeti acted with due diligence to prevent transboundary harm by carrying out an EIA and following the proper procedure before approving the construction.84 Based on identification of the royal noctule as an important component of biodiversity, and the wind farm project as capable to impact it, Runbeti has conducted an EIA, where it has obtained the necessary scientific evidence and concluded that the project will not have significant adverse impacts on sustainable use of biological diversity and that no significant (transboundary) harm would be caused by its construction. The EIA was extensive,85 meaning it covered a large area86 of circumstances linked to the wind-farm introduction, including areas surrounding the wind farm that are related to bats.

Subsequently, Runbeti has endeavored to prevent any damage or disturbance to the bats, prior to approval of the project.87

81 CMS Resolution 7.5, ¶1(b).

82 EUROBATS, Article III(2).

83 CBD, Article 7(a,c); CMS Resolution 7.5, ¶1(a); EUROBATS, Article III(2).

84 R.¶19.

85 Ibid.

86 Extensive, Cambridge English Dictionary (n.d.), https://dictionary.cambridge.org/dictionary/english/extensive

(Oct. 7, 2020).

87 R.¶19.

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Precautionary principle is not applicable in this case since the issue does not rely on the lack of scientific evidence. Runbeti has relied on scientific evidence from its EIA and acted accordingly.88

Additionally, Alducra has claimed there has been significant negative effect on bat populations, but not a serious or irreversible one.89 Even if there was any subsequent transboundary harm, appropriate measures to assess the potential damage in advance were taken, which leads to the conclusion that Runbeti has complied also with the due diligence requirement.90

1.4.2. Runbeti fulfilled the due diligence provisions by performing monitoring and

mitigation measures

According to Article 7 of CBD parties are required to monitor the components of biological diversity important for its conservation and sustainable use, paying particular attention to those requiring urgent conservation91 as well as monitor the effects of processes and categories of activities which have or are likely to have significant adverse impacts on the conservation and sustainable use of biological diversity.92 Monitoring can be executed also by non-governmental

93 organizations. Article 8(k) of CBD addresses the need for legislation, while Article III(6) of

EUROBATS requires additional action necessary to safeguard populations of bats.

88 Ibid.

89 R.¶22.

90 Nuclear Weapons, ¶29; Pulp Mills, ¶101; The Iron Rhine (“Ijzeren Rijn”) Railway (Belgium v. Netherlands.), ¶¶57-

59 and 222 (Perm. Ct. Arb. 2005).

91 CBD, Article 7(b).

92 CBD, Article 7(c).

93 Lyle Glowka et al., supra note 51, p.26.

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EUROBATS Resolution 8.4 recommends that countries ensure proper mitigation measures during the approval procedure,94 as well as appropriate post construction impact assessment and monitoring95 and suggests identifying measures.96

Runbeti acted in accordance with Article 7(b, c) of CBD and EUROBATS Resolution 8.497 by allowing the Chiroptera Crusaders to monitor the wind-farm area.98 Since no species were identified as in need for urgent conservation, Runbeti later discontinued the Chiroptera Crusaders’ monitoring.99 Additional mitigation measures recommended in Resolution 8.4 were not necessary based on the height of wind turbines.100 Furthermore, Runbeti is not bound by the obligations set out in Article 8(k) of CBD and Article III(6) of EUROBATS, since all are referring to threatened species, which royal noctule does not belong to, as is listed in Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”)101 only as vulnerable.102

94 EUROBATS Resolution 8.4, ¶14.

95 Ibid., ¶6,7.

96 Ibid., ¶13.

97 EUROBATS Resolution 8.4, ¶6,7.

98 R.¶20.

99 R.¶24.

100 M. Teague O’Mara et al., supra note 68, p.7.

101 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973, 993 U.N.T.S. 243.

102 R.¶14.

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II. ALDUCRA VIOLATED INTERNATIONAL LAW WITH ITS

INTERNATIONAL TRADE MEASURES

Alducra violated Article VIII of ARTA [1.]. The violation is not justified under Article X (general exceptions) [2.].

1. Alducra violated Article VIII of ARTA

Article VIII(1,2,3) of ARTA,103 mirroring the language of Article III(1,2,4) of the General

Agreement on Trade and Tariffs (“GATT”), is applicable when an adopted tax or law is discriminatory against foreign product and protects like domestic product.104 Under Article XV(2) of ARTA decisions of World Trade Organization (“WTO”) panels may be used as a subsidiary source of law for interpretation.105 US-Tobacco established that Article III(2) of GATT is subsidiary to Article III(1).106

Alducra violated the first [1.1.], second [1.2.] and third paragraph [1.3.] of Article VIII of ARTA.

103 R.¶13.

104 Panel Report, United States–Measures Affecting Alcoholic and Malt Beverages, ¶5.63, WTO Doc. DS23/R -

39S/206, (1992) [“WTO PR, US–Malt Beverages”].

105 R.¶13.

106 Panel Report, United States–Measures Affecting the Importation, Internal Sale and Use of Tobacco, ¶101, WTO

Doc. WT/DS44/R (1994).

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1.1. Alducra violated the provisions of the of Article VIII(1) of ARTA

Article VIII(1) of ARTA determines that no internal tax or regulation should be applied so as to afford protection to domestic production.107 The term “so as to” suggests both aim and effect of the measure.108

Based on the WTO dispute US-Auto, protectionism is established, when it is a desired outcome and not only an incidental consequence.109 Alducra stated that the Statute was applied also to protect domestic farmers,110 which shows that this is a desired consequence.

Secondly, the measure may be protectionist, if it accords greater competitive opportunities to domestic products,111 meaning taxation of imported and domestic products needs to be equal in effect.112 All farmers in Alducra have already had to conform to the bat-safe production measure, so they are not affected by the regulations.113 Since 20% tax and labelling only affect Runbeti`s competitive opportunities,114 domestic tapagium will have an advantage on the market.

107 R.¶13.

108 Panel Report, United States–Taxes on Automobiles, ¶5.10, WTO Doc. WT/DS31/R (1994).

109 Ibid.

110 R.¶26.

111 Ibid.

112 Panel Report, Japan–Customs Duties, Taxes and Labelling Practices on Imported Wines and Alcoholic Beverages,

¶5.11 WTO Doc. L/6216 - 34S/83 (1987) [“WTO PR Japan–Alcoholic Beverages”].

113 C., A15.

114 R.¶26.

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1.2. Alducra violated the provisions of Article VIII(2) of ARTA

Article VIII(2) of ARTA aims at regulating taxation of domestic and imported like products. To prove the violation,115 both conditions from WTO case Canada–Periodicals need to be met.116

Namely:

A) imported and domestic product are like products [1.2.1.],

B) imported products are taxed in excess of the domestic products [1.2.2. ].

1.2.1. Alducran and Runbeti’s tapagium are like products

The GATT Report sets a criteria, repeated by several WTO body decisions,117 for case-by-case determination of like products.118 Such products have similar end-uses in a given market, consumers' tastes and habits, properties of the product, nature and quality.119 Japan-Alcoholic

Beverages considered domestic and imported products of the same name as like.120

115 Panel Report, United States–Section 337 of the Tariff Act of 1930, ¶5.10., WTO Doc. L/6439 - 36S/345 (1989).

116 Appellate Body Report, Canada–Certain Measures Concerning Periodicals, ¶¶22,23. WTO Doc. WT/DS31/AB/R

(1997); Appellate Body Report, Japan-Taxes on Alcoholic Beverages, ¶¶18-19, WTO Doc.WT/DS8/AB/R,

WT/DS10/AB/R, WT/DS11/AB/R,R (1996) [“Japan-Alcoholic Beverages II”].

117 WTO ABR, Japan–Alcoholic Beverages, ¶5.6; Panel Report, Indonesia-Certain Measures Affecting the

Automobile Industry, ¶14.109, WTO Doc. WT/DS54/R, WT/DS55/R, WT/DS59/R, WT/DS64/R (1998); Panel

Report, Philippines–Taxes on Distilled Spirits, WTO Doc. WT/DS396/R, WT/DS403/R (2011) ¶¶7.31-7.37, 7.124-

7.127.

118 GATT Working Party Report, Border Tax Adjustments, L/3464, (1970) BISD 18S/97, ¶18.

119 Ibid; WTO ABR, Canada–Periodicals, ¶¶21-22.

120 WTO ABR, Japan–Alcoholic Beverages, ¶5.6.

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Additional to the same ingredients, tapagium from Alducra and Runbeti have the same name which makes it indistinguishable for the customers.121 This concludes that both tapagiums should also be considered like products.

The two products differ only in the Process and Production Method (“PPM”),122 which does not per se render them as “unlike”.123 In US-Tuna the Panel viewed the US' measure as inconsistent with Article III of GATT, because PPMs-based differential treatment of products would automatically be a violation.124

The sole distinction between tapagiums is that Alducran farmers allow 5% of agaves to , while Runbeti’s do not.125 Considering the US-Malt Beverages, which established that wine produced from a different type of grape was still “like” product to imported wine,126 it can be concluded that different propagation of agaves does not affect the likeness of the products.

121 R.¶11.

122 R.¶25.

123 WTO rules and environmental policies: key GATT disciplines, WTO, https://www.wto.org/english/tratop_e/envir_e/envt_rules_gatt_e.htm (Nov. 10, 2020); WTO PR, US–Malt Beverages,

¶5.25.

124 Panel Report, United States-Restrictions on imports of tuna, ¶5.15, WTO Doc. WT/DS21/R (Unadopted) [“WTO

PR US-Tuna”].

125 R.¶15.

126 WTO PR, US–Malt Beverages, ¶¶23-5.26.

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1.2.2. Imported tapagium from Runbeti is taxed in excess of the domestic Alducran

tapagium

Japan–Alcoholic Beverages clarifies that identical tax can still affect imported products more severely than domestic and constitute de facto discrimination.127

Although the tax imposed is de jure identical for both products, it de facto only impacts imported products. Alducran farmers already transitioned to bat-safe farming practices by the end of 2015,128 meaning the Statute does not apply domestically. Only Runbeti's tapagium production is burdened by 20% taxation, 129 therefore the unequal effect of the tax is evident.

1.3. Alducra violated provisions of Article VIII(3) of ARTA

The Article VIII(3) of ARTA aims to eliminate less favorable treatment of products over like domestic products. The violation is applied if the three-part test developed in Korea-Various

Measures on Beef 130 is affirmed:

A) the imported and domestic products are 'like products', [1.3.1.],

B) the measure is a 'law, regulation, or requirement affecting their internal sale, offering for

sale, purchase, transportation, distribution, or use', [1.3.2.],

127 WTO PR, Japan–Alcoholic Beverages I, ¶5.8.

128 C., A15.

129 R.¶22.

130 Appellate Body Report, Korea–Measures Affecting Imports of Fresh, Chilled and Frozen Beef, ¶133, WTO Doc.

WT/DS161/AB/R, WT/DS169/AB/R (2000).

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C) that the imported products are accorded 'less favorable' treatment than like domestic

products. [1.3.3.].

1.3.1. Domestic and imported tapagium are like products

The same reasoning as for likeness under Article VIII(2) applies to likeness of products under

Article VIII(3) of ARTA.131

1.3.2. The measure at issue is a requirement affecting the internal sale, offering for

sale, purchase, transportation, distribution, or use of imported tapagium

Italy-Agricultural Machinery decided that the possibility that a regulation might negatively modify the conditions of competition is enough even if prima facie it does not seem to have that effect.132

If a measure is applied onto the product at the point of importation, it does not take the regulation out of scope of Article III of GATT.133

Labelling provision is a condition upon which foreign tapagium can enter Alducran market, as it applies to all tapagium sold in Alducra.134 Since the farmers in Alducra already adapted to the requirements,135 this adversely affects Runbeti’s farmers’ conditions of competition.

131 Appellate Body Report, European Communities—Measures Affecting Asbestos and Products Containing Asbestos,

¶¶98,99, WT/DS135/AB/R (2001) [“WTO ABR EC-Asbestos”].

132 Panel Report, Italian Discrimination against Imported Agricultural Machinery, ¶12, WTO Doc. L/833-7S/60

(1958) [“WTO PR Italy-Agricultural Machinery”].

133 U.N. Conference on Trade and Employment, Havana Reports, p. 62, ¶42; E/CONF.2/C.3/A/W.30 (1947).

134 R.¶26.

135 R.¶15.

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1.3.3. Imported tapagium is accorded less favorable treatment than like domestic

product

Less favorable treatment is determined on the basis of its effects on the internal sale and offering for sale.136 Such treatment is detrimental to sales of the imported products, even when it only requires labelling of the country of origin, as stated in US-COOL.137 The violation is established where the labelling is obligatory,138 and there is no need for consideration of the regulatory purpose.139

The labelling provision imposed by Alducra dictates the right to sell tapagium on the Alducran market, therefore it is not voluntary.140 Alducran labelling provision will require only Runbeti`s tapagium to carry a 6 cm large label,141 since there are no other tapagium producers in the world.142

The labelling requirement creates a disincentive143 to purchase Runbeti`s tapagium. Following US-

136 WTO PR, Italy-Agricultural Machinery, ¶12.

137 Appellate Body Report, United States-Certain Country of Origin Labelling (COOL) Requirements, ¶7.1641, WTO

Doc. WT/DS384/AB/RW, WT/DS386/AB/RW (2012).

138 WTO PR, US-Tuna, ¶5.42.

139 Appellate Body Report, European Communities–Measures prohibiting the importation and marketing of seal products, ¶2.236, WT/DS400/AB/R, WT/DS401/AB/R (2014) [“WTO ABR, EU-Seals”].

140 R.¶26.

141 Ibid.

142 R.¶11.

143 Panel report, India–Measures Affecting the Automotive Sector, ¶7.308, WTO Doc. WT/DS175/R (2001).

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COOL, a label indicating origin of the product is detrimental to sales. This cannot be mitigated by regulatory purpose as established by EU-Seals.144

2. Runbeti claims that general exceptions are not applicable

The chapeau of Article X of ARTA and its relevant subpoints (b, g) are identical to provisions in

Article XX of GATT.

General exceptions are not applicable since the Statute did not fulfill the requirements of the two tier-test of Article X of ARTA [2.1.], subsidiary there is no basis for extraterritorial application of the Statute [2.2.], it also does not fulfill the conditions of subpoint g [2.3.] or subpoint b [2.4.].

2.1. Alducra did not fulfill requirements of the two-tier test of Article X of

ARTA

The two-tier test from US-Gasoline, consists of requirements that the measure in question falls under the scope of general exceptions and fulfills the requirements of the chapeau.145 Chapeau of

Article X requires that measures are not applied in a way that would constitute arbitrary or unjustifiable discrimination.146 Both elements of the test need to be met.147

144 WTO ABR, EU–Seals, ¶2.236.

145 Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline, ¶22, WTO Doc.

WT/DS2/AB/ (1996) [“WTO ABR, US–Gasoline”].

146 R.¶13.

147 Appellate Body Report, Brazil–Measures Affecting Imports of Retreaded Tyres, ¶139, WTO Doc.

WT/DS332/AB/R (2007) [“WTO ABR, Brazil–Retreaded Tyres”].

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Firstly, Alducra stated that the Statute implementing labelling and taxation was adopted to protect bats, the environment, other biodiversity and farmers.148 While the first three could fall under

Article X(b,g), protection of the farmers is not covered by any of the general exceptions.149

To fall under the scope of subpoint g, the regulating member should prove there were no appropriate measures available,150 which should be WTO-consistent or less restrictive of international trade and must enable achieving legitimate policy goals with the same degree of efficiency.151 US-Tuna stated that a reasonable alternative to protecting transient animal life, would be an international cooperative agreement.152 US-Shrimp recognized that the US, as a party to

CITES, should raise the issue in the CITES Standing Committee.153 Alducra, being party to

CITES,154 failed to raise this issue before the CITES Standing Committee.

Secondly, the Statute was implemented in a way that constitutes arbitrary and unjustifiable discrimination.

148 Ibid.

149 R.¶13.

150 Panel Reports, China–Measures Related To The Exportation Of Rare Earths, Tungsten, And Molybdenum, ¶7.664,

WTO Doc. WT/DS431/R, WT/DS432/R, WT/DS433/R (2014).

151 Ibid.

152 WTO PR, US–Tuna, ¶¶5.24-5.29.

153 Appellate Body Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products, ¶171, WTO

Doc. WT/DS58/AB/R (1998) [“WTO ABR, US–Shrimp”].

154 R.¶7.

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Targeting only one state constitutes arbitrary discrimination according to Canada–Tuna.155

Runbeti is the only other producer of tapagium in the world,156 which means that any measure relating to tapagium targets only Runbeti. There are eight other countries on the Architerpo,157 to which this particular bat species is endemic.158 Although only Alducra and Runbeti grow agaves, which are a food resource for Architerpan long nosed bat,159 they feed on cacti and other fruit as well.160

Discrimination is unjustifiable, when a measure fails to allow other appropriate actions to achieve the goal.161 The Statute enforces its own policy onto Runbeti and does not allow for other solutions.162 It is not acceptable to enforce a uniform standard policy on other States, without a consideration of different conditions.163 Runbeti is a developing country, larger than Alducra164

155 Panel Report, US–Prohibition of imports of tuna and tuna products from Canada, ¶4.8, WTO Doc. L/5198 - 29S/91

(1982).

156 C., A10.

157 R.¶1.

158 Ibid., ¶14.

159 Ibid., ¶15.

160 Alberto Rojas-Martínez et al. Frugivory diet of the lesser long-nosed bat (Leptonycteris yerbabuenae), in the

Tehuacán Valley of central Mexico. THERYA, 3(3), 2012, p.372.

161 WTO ABR, US–Shrimp, ¶161.

162 R.¶26.

163 WTO ABR, US–Shrimp, ¶¶163, 164.

164 R.¶1.

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and with different farming practices and environmental regulations,165 aimed at lowering GHGs.166

This is necessary considering long nosed bats are particularly vulnerable to climate change.167

2.2. Alducra lacks basis for extraterritorial application of the Statute

In US-Shrimp,168 extraterritorial application of environmental measure is accepted when strictly confined to international treaties.169 References were made to the Rio Declaration170 and CBD171 which state that unilateral actions to deal with environmental challenges outside the jurisdiction should be avoided.172 Moreover, while there is a prohibition of trade in endangered species, the

CITES does not justify trade restrictions on non-protected species.173

The Statute applies to tapagium, a product from agave, which is a non-protected species,174 thereupon, it cannot be applied extraterritorially.

165 R.¶16.

166 Ibid.

167 Emma P. Gómez-Ruiz, Climate change, range shifts, and the disruption of a pollinator–plant complex, 9 Sci Rep,

2019, pp.1-8.

168 WTO ABR, US–Shrimp, ¶168.

169 Simon Baughen, International Trade and the Protection of the Environment 33 (2007).

170 Rio Declaration, Principle 12.

171 CBD, Article 5.

172 Rio Declaration, Principle 12; CBD Article 5.

173 Baughen, supra note 168.

174 Ibid.

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2.3. Relating to the conservation of exhaustible natural resources

The Statute is not in relation with conservation [2.3.1.] and it was not applied in conjunction with restrictions on domestic production. [2.3.2.].

2.3.1. The Statute is not applied in relation to conservation of exhaustible natural

resources

To be in relation with conservation of exhaustible natural resources, conservation needs to be

Statue’s primary aim,175 not only incidental.176 The aim is determined by measure`s design and structure.177

The Statute is partially aimed at protection of domestic farmers as it primarily taxes and labels

Runbeti`s tapagium, which profits Alducran farmers.178 The basis for evaluating the design of the measure in US-Shrimp was the existence of reasonable exceptions.179 The design of the Statute excludes exceptions, such as exempting agave products from areas without the Architerpan long nosed bat.180

175 WTO ABR, US–Gasoline, p.18.

176 Appellate Body Report, China–Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum,

¶5.90, WT/DS431/AB/R (2014) [WTO ABR “China–Rare Earths”].

177 WTO ABR, Japan–Alcoholic Beverages II, p. 29; WTO ABR, China–Rare Earths, ¶5.96.

178 R.¶26.

179 WTO ABR, US–Shrimp, ¶138.

180 R.¶26.

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2.3.2. The Statue was not applied in conjunction with restrictions on domestic

products

China-Rare Earths established that it would be difficult to conceive of a measure that would impose a significantly more onerous burden on foreign producers and could still satisfy the requirements of Article XX(g).181 The US-Shrimp further explained that the phase-in period relates directly to the onerousness of the burden of complying with the requirements. The shorter the period, the heavier the influence of the measure, especially when an exporter has many producers affected by it.182

The burden imposed on Runbeti is significantly more onerous, since legislation from 2015 did not sanction Alducran farmers with labelling or taxation.183 Moreover, Alducran farmers also had a longer phase-in period.184 Runbeti`s farmers are not in a position to afford compliance within such a short period.185

The Statute should also be applied with consideration of the market in which it will operate.186

The tapagium market is narrowed down to Architerpo, its production limited to two countries, and most of the exports come from Runbeti. It exports a significant volume of 10 million liters per year

181 WTO ABR, China–Rare Earths, ¶¶5.133-5.134.

182 WTO ABR, US–Shrimp, ¶174.

183 R.¶¶16, 26.

184 R.¶15.

185 Ibid., ¶27.

186 WTO ABR, China–Rare Earths, ¶5.97.

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only to Alducra.187 Together with the product and geographical scope of the market, the foreign market participants play a significant role for Runbeti and are necessary considerations.188

2.4. Alducra`s action was unnecessary to protect animal life or health

To determine whether a measure is necessary within the meaning of Article X(b), the following factors need to be considered: the importance of the interests or values at stake [2.4.1.], the contribution to the achievement of the Statute's objective and its trade restrictiveness [2.4.2.], along with existence of less trade restrictive alternatives [2.4.3.].189

2.4.1. The importance of interests or values at stake is not high

According to Colombia-Textiles the party implementing a measure must prove that it is vital and important in the highest degree.190

While it has been established that the protection of environment is significantly important,191 it is unclear whether this is vital for Alducra. Architerpan long nosed bats are only vulnerable and do not constitute importance to the highest degree, in contrast to being endangered.192

187 R.¶11.

188 WTO ABR, China–Rare Earths, ¶5.97.

189 WTO ABR, Brazil–Retreaded Tyres, ¶178; Appellate Body Report, United States-Measures Affecting the Cross-

Border Supply of Gambling and Betting Services, ¶307, WTO Doc. WT/DS285/AB/R (2005).

190 Appellate Body Report, Colombia – Measures Relating to The Importation of Textiles, Apparel and Footwear

¶5.105., WTO Doc. WT/DS461/RW (2018).

191 WTO ABR, Brazil–Retreaded Tyres, ¶179.

192 R.¶14.

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2.4.2. The Statute was ineffective in reaching the goal and disproportionate to the

level of limitation posed to international trade

Following Brazil-Retreaded Tyres, the Court should examine whether the measure is apt to produce a material contribution to the objective193 and compare it to the damage done to Runbeti`s tapagium industry.

US-Tuna stated that a limitation on trade based on unpredictable conditions could not be regarded as necessary.194 Not all agave crops are suitable for flowering and feeding the long nosed bats and those that are, may take from 4 to 35 years to flower.195 Importantly, allowing agave crops to flower causes their death and impairs tapagium production.196 The Statute’s objective is disproportionate to the long-term damage to Runbeti`s economy known for tapagium production and exportation.197

2.4.3. There were better alternative measures for Alducra to reach the goal

The measure imposed is not necessary if there are reasonably available alternatives.198 The issue is discussed in [2.1.].

193 WTO ABR, Brazil–Retreaded Tyres, ¶151.

194 WTO PR, US–Tuna, ¶5.28.

195 S. Msahli et al., Evaluating the Fineness of Agave Americana L. Fibers, 75 Textile Research Journal, 2005, pp.540-

543; Agaves, Bat Friendly: Agaves&Bats, https://www.batfriendly.org/agaves-eng/ (Nov. 10, 2020) [“Agaves, Bat

Friendly”]

196Agaves, Bat Friendly.

197 R.¶11.

198 WTO ABR, EC-Asbestos, ¶¶170-172.

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PRAYER

The Respondent, the Republic of Runbeti, respectfully requests the Court to adjudge and declare that:

1. Runbeti did not violate international law with respect to its wind farm project.

2. Alducra violated international law with respect to its international trade measures.

(Respectfully Submitted)

Agents on behalf of the Respondent State.

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