Applicant Memorial First Draft

Team ____
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE, THE NETHERLANDS
THE CASE CONCERNING THE PROTECTION OF BATS AND INTERNATIONAL
TRADE MEASURES
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THE FEDERAL STATES OF ALDUCRA
APPLICANT
v.
THE REPUBLIC OF RUNBETI
RESPONDENT
MEMORIAL FOR THE APPLICANT
THE 2020 STETSON MOOT COURT COMPETITION

TEAM ______ Memorial for the Applicant
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TABLE OF CONTENTS
2
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INDEX OF AUTHORITIES
3
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STATEMENT OF JURISDICTION
The Federal States of Aldcura and the Republic of Runbeti hereby submit the present dispute
pursuant to Article 40(1) of the Statute of the International Court of Justice (“ICJ”) and in
accordance with Article XV of the Architerpo Regional Trade Agreement (“TARA”). The
parties signed a special agreement to submit their differences regarding questions relating to the
Protection of Bats and International Trade Measures, signed at Mexico City, Mexico, on the 22
June 2020. Both Parties undertake to accept any Judgment of the Court as final and binding upon
them and shall execute it in its entirety and in good faith.
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QUESTIONS PRESENTED
I. Whether Runbeti violated international law with respect to its wind far project?
II. Whether Aldcura violated international law with respect to its trade measures for
tapagium products?
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STATEMENT OF FACTS
The Economy of Alducra and Runbeti
Alducra and Runbeti are part of the continent Architerpo which are both agricultural countries. Alducra
has a developed economy, while Runbeti has a developing economy. Both countries are members of the
United Nations (UN) and the International Court of Justice (ICJ). They are state parties to different
conventions like the Vienna Convention on the Laws of Treaties (VCLT), Convention on Biological
Diversity (CBD), Convention of the Conservation of Migratory Species of Wild Animals (CMS),
Convention on the Conservation of European Bats (EUROBATS), Convention on the International Trade
in Endangered Species of Wild Fauna and Flora (CITES), and the United Nations Framework Convention
on Climate Change (UNFCC). Currently, only Runbeti is a member of the World Trade Organization
(WTO) since Alducra withdrew from the organization in 2004.
Agave is a plant used to make tapagium, a spirit similar to Tequila. In Architerpo, only Alducra and
Runbeti locally produce agave and tapagium. Between the two countries, Runbeti is the major producer of
agave and tapagium. All other countries in Architerpo import tapagium from Runbeti, including Alducra,
whose importation goes as much as 10 million liters every year. In 2000, the Architerpo Regional Trade
Agreement (ARTA) was entered to support and bolster the trade relations among the countries in the
region.
Bats and Its Significance in the Architerpo Biodiversity
Bats are significant in the biodiversity of Alducra and Runbeti since two species of bats, namely the
Royal Noctules (Nyctalus royalis) and Architerpan long-nosed bats (Leptonycteris architerpae) are
endemic to the continent. Both species are considered vulnerable on the IUCN Red List and are listed in
CITES Appendix II, CMS Appendix II, and EUROBATS Annex 1. Due to their vulnerability, Alducra
enacted a law for the protection of the bats. One of the bats' ecological advantages is that they are known
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pollinators and agents of seed dispersal. This fact holds true for the Leptonycteris architerpae due to their
nectarivorous nature. The Nyctalus royalis is an insectivore and assists with the continent's insect control.
The Leptonycteris architerpae's main diet is agave, prompting the government of Alducra to enact a
statute promoting bat-safe agave farming practices. This is to protect the vulnerable species from thriving
while meeting the demands of the production of tapagium. Runbeti, however, do not have any laws for
bat-safe agave farming practice. In 2019, Alducra passed a statute to impose a 20% sales tax on tapagium
produced from a farm that is not implementing a bat-safe farming practice. It also imposed a labeling
requirement on tapagium bottles as "bat safe" or "not bat safe," which applies to all imported and locally
produced tapagium. This statute aims to promote the protection of bats, especially the Leptonycteris
architerpae and Nyctalus royalis.
Wind Farms and Bat Harm
As part of UNFCCC, the Government of Runbeti initiated a program to construct a wind farm, which is
an alternative source of energy for the country. This project will be constructed in the properties of
Pinwheel Energy Co. (PECO) and consists of 4 phases or more, depending on the result of the prior
phases. The first phase of the wind farm is on the border of Alducra and Runbeti and is part of the
migratory pattern of the Nyctalus royalis. Aside from the fact that the Nyctalus royalis passes through the
location of the first phase of the wind farm, the area is also a roosting and feeding area for the bats. This
poses a grave threat to the lives and natural feeding process of the Nyctalus royalis.
Through the initiative of a bat conservation group Chiroptera Crusaders, Alducra was informed of the
wind farm project of Runbeti. The wind farm impacts the bats through collision and barotrauma.
Chiroptera Crusaders gave suggestions on mitigating activities on the wind farm project to Runbeti and
PECO for the protection of the bats. PECO and Runbeti turned down the suggestions of Chiroptera
Crusaders, but they allowed the inspection of the site of construction. After the first phase of the
construction, 237 royal noctules died in 2017, and 358 died in 2018. These deaths alarmed the Chiroptera
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Crusaders and Alducra because they are listed as vulnerable species under IUCN. petitioned for the
suspension of the construction of the succeeding phases.
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SUMMARY OF ARGUMENTS
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ARGUMENTS ADVANCED
I. THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH
RESPECT TO ITS WIND FARM PROJECT.
I.1Runbeti is responsible for the internationally wrongful acts of PECO vecause
PECO’s acts are attributable to RunbetiTO RUNBETI
I.2
I.3[Discuss]
The creation of the wind farm project which caused the death of the Royal Noctule amounts to an
internationally wrongful act. There is an internationally wrongful act when (a) it is attributable to the state
under international law1; and (b) constitutes a breach of an international obligation. 2 Here, PECO violated
international obligations, and this is attributable to Runbeti because all the elements of State attribution
are present in this case.3
Report of the International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongfully Acts, U.N. GAOR, art. 4,5,8 and 11, U.N. Doc. A/56/10 (2001), hereinafter [“ARSIWA”].
2
Report of the International Law Commission, Draft Articles on Responsibility of States for Internationally
Wrongfully Acts, U.N. GAOR, art. 2, U.N. Doc. A/56/10 (2001), hereinafter [“ARSIWA”].
3
ARSIWA, art. 4, art. 5, art.8, art.11.

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I.3.1 PECO is empowered by Runbeti to exercise elements of governmental authority.
It is a generally accepted principle4 that the conduct of a private person or entity empowered by the law of
the State to exercise elements of governmental authority, shall be considered an act of the State. 5 Here, it
is not necessary to show control of the State6 or the State’s equity or ownership, whether public or
private.7 Such act must be – performed by an entity empowered to exercise elements of governmental
authority; and performed in the exercise thereof. 8 Governmental acts are attributable to the state. 9 What is
“governmental” depends on the society, its history and traditions, and requires consideration of the
content of the powers, the manner of conferment, the purposes, and the accountability to the
government.10 A State may pursue its national interests through private corporations. In this case, Runbeti
is using PECO to construct the wind farms as part of their subsidy program.11 By definition, a subsidy
4
Noble Ventures, Inc. v. Romania, ILC 179, ¶ 81 (2005); Emilio Agustin Maffezini v. Kingdom of Spain, ICSID, ¶
78, ARB/97/7 (Nov. 13, 2000).
5
ARSIWA, art. 5.
6
Jennifer Maddocks, Outsourcing Governmental Functions in Contemporary Conflict: Rethinking the Issue of
Attribution (May 21, 2018), (forthcoming in the Virginia Journal of International Law), p. 10.
7
Jan de Nul N.V. and Dredging International N.V. v. Arab Republic of Egypt, ICSID, ¶ 165, ARB/04/13 (Nov. 6,
2008).
8
Id., ¶ 163.
9
Emilio Agustin Maffezini v. Kingdom of Spain, ICSID, ¶ 80, ARB/97/7 (Nov. 13, 2000).
10
Emilio Agustin Maffezini v. Kingdom of Spain, ICSID, ¶ 6, ARB/97/7 (Nov. 13, 2000).
11
Record, para. 16.

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program is a payment by the government made to certain groups or individuals for the interest of the
State.12 An entity who obtains a subsidy does so because he conforms to the requirements set down in the
subsidy legislation imposed by the State.13 Here, Runbeti announced that they will provide substantial
government subsidies to approve alternative energy projects in Runbeti,14 and subsequently approved the
necessary permits to PECO.15 In conclusion, Runbeti empowered PECO to construct the wind farm as a
form of governmental act for the interest of the State.
I.3.2 PECO is under effective control of Runbeti.
A State is liable for the conduct of private individuals when they are in fact acting on the instructions of,
or direction or control of the State in carrying out that conduct. 16 To determine this, Nicaragua upholds
the effective control test, whereby private acts are attributable to the State if it directed or controlled the
specific operation, and the conduct complained of was an integral part of that operation. 17
12
ROBINSON, WARREN C. “WHAT IS A GOVERNMENT SUBSIDY?” National Tax Journal, vol. 20, no. 1,
1967, pp. 86. JSTOR, www.jstor.org/stable/41792130. Accessed 26 Oct. 2020.
13
Rolph, Earl, The Theory of Fiscal Economics, University of California Press, Berkeley and Los Angeles: 1956,
pp.66-67.
14
Record, para. 16.

15
Record, para. 19.

16
ARSIWA, art. 8.
17
Military and Paramilitary Activities in and against Nicaragua supra note 10, ¶ 115; Application of the Convention
on the Prevention and Punishment of the Crime of Genocide, supra note 10, ¶ 399.
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Runbeti controls PECO’s operations.
Runbeti has been in control over PECO from the start of its operations in 2016 until now. It was Runbeti
who chose PECO18, approved the wind farm project19 and continuously declined to implement mitigation
measures for the construction. Along with PECO, Runbeti allowed monitoring by the Chiroptera
Crusaders20 and revoked it thereafter. 21 EvidentlyConsequently, Runbeti’s control over the initial stages ,
Runbeti has been in control over PECO from the start of its operations in 2016 until now.and subsequent
intervention in all the phases of the construction are integral parts of PECO’s operations in constructing
the wind farm.
I.3.3 In any case, Runbeti acknowledged and adopted the acts of PECO as its own.
A conduct is considered an act of a State if and to the extent that the State acknowledges and adopts the
conduct in question as its own.22 In this case, Runbeti acknowledged the conducts of PECO and adopted it
as its own.
18
Record, para. 17
19
Record, para. 19.

20
Record, para. 20.

21
Record, para.24
22
ARSIWA, art. 11.

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a. a. Runbeti acknowledge the legitimacy of the conducts of PECO
Runbeti acknowledge the factual existence of PECO’s actions when they said that although the bat
mortalities are unfortunate, they fail to see how the wind turbines created by PECO can be the cause of
harm.23 Immediately thereafter, Runbeti unscrupulously disallowed the further monitoring of Chiroptera
Crusader in the wind farm.24 More importantly, Runbeti deemed DORTA’PECO’s conducts as legitimate
because the construction of the wind farms bring an alternate source of energy for the people of Runbeti.
a. b. Runbeti adopted the conducts of PECO.
A State assumes responsibility by adopting the conduct as its own. 25 Declarations publicly made by, inter
alia, heads of State, and manifestations of the will to be bound can have the effect of creating legal
obligations,26 and that said obligations be respected in good faith. 27

23
Record, para. 23.

24
Record, para. 24.

25
Prosecutor v. Dragan Nikolić, Case No. IT-94-2-PT, Decision on Defence Motion Challenging the Exercise of
Jurisdiction by the Tribunal, ¶¶ 60-63 (Oct. 9, 2002); Affaire Relative à la Concession des Phares de l’Empire
Ottoman (Fr. v. Greece), 12 R. Int’l Arb. Awards 155, 198 (Perm. Ct. Arb. 1956).
26
Report of the International Law Commission, Guiding Principles Applicable to Unilateral Declarations of States
Capable of Creating Obligations, with Commentaries thereto, U.N. GAOR, U.N. Doc. A/61/10 (2006), princs. 1-4;
Nuclear Tests Case (Austl. v. Fr.), 1974 I.C.J. 253 (Dec. 20), ¶¶ 43-46; Frontier Dispute (Burk. Faso v. Mali), 1986
I.C.J. 554 (Dec. 22), ¶¶ 39-40; Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53, ¶
58 (Apr. 5); North Sea Continental Shelf (F.R.G. v. Den; F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20), ¶ 100; Armed
Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), 2006 I.C.J. 6
(Feb. 3), ¶¶ 48-50.
27
Report of the International Law Commission, Guiding Principles Applicable to Unilateral Declarations, supra note
54, princ. 1.
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Ambassador Wendy A. Nemoi in behalf of the Government of Runbeti strongly declined Alducra’s
request to shut down the wind farm.28 Immediately thereafterSubsequently, Runbeti manifested their
plans to move forward with the next phase of the project.29 Clearly, Runbeti adopted the conduct of
PECO as its own.
II. THE DEATH OF THE ROYAL NOCTULE CAUSED BY RUNBETI IS A
VIOLATION OFTO INTERNATIONAL TREATY OBLIGATIONS
RELATING TO THE PROTECTION OF THE ENVIRONMENT AND
MIGRATORY SPECIES AND THE ENVIRONMENT.
2.1 Runbeti violated its obligations to conserve biological diversity by causing damage to
Alducra through their wind farm project. ARCTOS
CBD mandates the conservation of biodiversity and the sustainable use of its components, with emphasis
on in-situ conservation, or the conservation of ecosystems and natural habitats and the maintenance and
recovery of viable populations of species in their natural surroundings.30 In creating the wind farm,
Runbeti violated CBD and defeated its overarching goal of conservation and sustainable use of
biodiversity.
28
Record, para.23.
29
Record, para.23
30
CBD. Art 8
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II.1.1 Runbeti failed to classify the wind farm project as a damaging activity under Art.
7C and failed to manage its impacts to reduce biodiversity loss under Article 8L.The
wind farm project violates the obligations onis contrary to in-situ conservation
under Article 7 of CBD, in relation to Article 8L.
II.1.2 CBD mandates the conservation of biodiversity and the sustainable use of its
components, with emphasis on in-situ conservation, or the conservation of
ecosystems and natural habitats and the maintenance and recovery of viable
populations of species in their natural surroundings. It also imposes upon Parties the
responsibility to ensure that activities within its jurisdiction or control do not cause
damage to the environment of other States or areas beyond national jurisdiction. In
creating the wind farm, Runbeti violated CBD and defeated its overarching goal of
conservation and sustainable use of biodiversity.
II.1.3
Runbeti failed to classify the wind farm project as a damaging activity under Art. 7C and failed to
manage its impacts to reduce biodiversity loss under Article 8L. Article 7 and Article 8 of the CBD both
have a limiting language, as contended by Runbeti. The words “as far as possible and as appropriate”
makes the obligations provided by the provisions discretionary. However, the limiting language of these
provision does not justify non-compliance of a party31, it must be read in the context of its objective and
purpose of the treaty.32 As established by previous scientific studies, it can be reasonably inferred that
poorly planned and managed wind turbines have detrimental effects to biological diversity. One of the
31
Ornella Ferrajolo, State Obligations and Non-compliance in the Ramsar System, 14, J. OF Iɴᴛ’ʟ WILDLIFE L. ᴀɴᴅ
Pᴏʟ’ʏ, 248, 243-260 (2011).
32
Vienna Convention, Art. 31, para. 1.

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main objectives of CBD is the conservation of biological diversity. 33 Runbeti’s non-compliance to the
provision of CBD, shows its disinterest to conserve biological diversity.Article 7 and Article 8 of the
CBD both have a limiting language, as contended by Runbeti. The words “as far as possible and as
appropriate” makes the obligations provided by the provisions discretionary. However, the limiting
language of these provision does not justify non-compliance of a party 34, it must be read in the context of
its objective and purpose of the treaty.35 One of the main objectives of CBD is the conservation of
biological diversity.36 Runbeti’s non-compliance to the provision of CBD, shows its disinterest to
conserve biological diversity.
a. The wind farm project of Runbeti is a damaging activity to biological diversity.
Article 7 (c) of CBD mandates Parties to “as far as possible and as appropriate, identify process and
categories of activities which have or are likely to have significant adverse impacts on the conservation
and sustainable use of biological diversity.” “Any factor that causes a sustained and continuing decline in
the population of a species is a threat to that species, as it will eventually lead to its extinction. These
factors may operate by causing either increased mortality or decreased reproductive success.” 37
Pertinently, existing studies show that wind turbines have There are different adverse effects to
33
Convention on Biological Diversity, Article 1.

34
Ornella Ferrajolo, State Obligations and Non-compliance in the Ramsar System, 14, J. OF Iɴᴛ’ʟ WILDLIFE L. ᴀɴᴅ
Pᴏʟ’ʏ, 248, 243-260 (2011).
35
Vienna Convention, Art. 31, para. 1.

36
Convention on Biological Diversity, Article 1.

37
UNEP/CBD/SBSTTA/2/3 (9 August 1996)

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biodiversity consistent with CBD-SBSTTA definition.38 Species that are most vulnerable to the wind farm
are the migratory birds and , and migratory bats.39 Studies shows that wind turbines cause direct and
indirect impacts to these species, such as change in distribution, habitat loss, and collision. 40
Article 7(c) provides that parties are to should “identify processes and categories of activities which have
or are likely to have significant adverse impacts on the conservation and sustainable use of biological
diversity, and monitor their effects through sampling and other techniques.” 41 Thirty to forty bats and
birds are killed annually per turbine in the eastern part of the United States of America along the
Appalachian.42 “The estimated total mortality rate at wind turbines in this area alone in the year 2020,
based on projections of installed capacity, is between 33,000 and 110,000 bats per year.” 43 At the Atlantic
coast of France and forested hills and ridges in southern Germany, bat mortality caused by wind turbines
is nearly as high specifically the species Nyctalus, Pipistrellus, Vespertilio and Eptesicus spp. 44 Here, the
38
National Research Council, Environmental Impacts of Wind-Energy Projects, (2007), page 67.
39
Tosh, D.G., Montgomery, W.I., et al., A review of the impacts of onshore wind energy development on
biodiversity, (2014), pages 9-29.
40
Hotker, H., Thomsen, K., et al., Impacts on biodiversity of exploitation of renewable energy sources: the example
of birds and bats – facts, gaps in knowledge, demands for further research and ornithological guidelines for the
development of renewable energy exploitation, (2005), pages (14-33).
41
Convention of Biological Diversity (CBD). Article 7, Section C.

42
Rydell, J., et al. Bat mortality at wind turbines in northwestern Europe. (2010)
43
Id.
44
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Chiroptera Crusaders reported a total of 593 deaths of Royal Noctules, and several other specimen of
other bat species in its first two (2) years of operation.45 It should be noted that the Royal Noctule is a
vulnerable species under the International Union for Conservation of Nature (“IUCN”) Red List. 46
Despite the Chiroptera Crusaders’ explicit expression of concern aboutto the wind farm project prior to its
construction, the Republic of Runbeti pushed through with the project. Moreover, throughout the
construction, the group repeatedly implored the government of Runbeti to create mitigation measures as
bat mortality at wind energy projects has been shown to “both indirectly due to habitat loss, disturbance
and displacement, and creation of movement barriers, and directly due to collisions of wildlife with wind
turbines, a phenomenon recorded worldwide.”47 Thirty-forty (30-40) bats and birds are killed annually per
turbine in the eastern part of the United States of America along the Appalachian.48 “The estimated total
mortality rate at wind turbines in this area alone in the year 2020, based on projections of installed
capacity, is between 33,000 and 110,000 bats per year.”49 At the Atlantic coast of France and forested
hills and ridges in southern Germany, bat mortality caused by wind turbines is nearly as high specifically
the species Nyctalus, Pipistrellus, Vespertilio and Eptesicus spp.50
45
Record, para. 21.

46
Record, para, 14.

47
Thompson, M., et al. Factors associated with bat mortality at wind energy facilities in the United States. (2017)
48
49
Id.
50
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b. Runbeti failed to classify it as a damaging activity. [___] subject to various studies
conducted by both public and private sectors.
c.
Runbeti admitted that they failed to see the damaging effects of the windfarm to Adlucra. 51 Under UNEP-
SBSTTA’s high priority task list, during assessment and monitoring, there must be a “development of an
indicative framework of processes and categories of activities that are or are likely to have significant
adverse impacts on biological diversity.”52 The adverse effect of the wind farm was made apparent when
593 Royal Noctules were found dead near the wind turbines within the first two years if the farm’s
operation, as reported by the Chiroptera Crusaders.53 It should be noted that the Royal Noctule is a
vulnerable species under the International Union for Conservation of Nature (“IUCN”) Red List. 54
Despite these deaths, Runbeti “refuses to shut down the wind farm and plans to move forward with the
next phase.”55
b. Runbeti did not manage the relevant process and categories of activities in the wind
farms.
51
Record, para. 23.

52
UNEP/CBD/SBSTTA/2/3 (9 August 1996) p. 479

53
Record, para. 21.

54
Record, para, 14.

55
Record, para. 23
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Article 8 (L) of CBD mandate Parties to “as far as possible and as appropriate, where significant adverse
effect has been determined pursuant to Article 7, regulate or manage the relevant process and categories
of activities. Not properly planned or managed wind turbines can adversely affect biodiversity, and can
lead to habitat loss and death of species, specifically migratory birds and migratory bats. 56 Curtailing, or
temporarily shutting down the operation of wind turbines is one of the accepted and effective way of
reducing the damage caused by the wind turbines. 57
Runbeti’s inaction despite the Chiroptera Crusaders’ report regarding the deaths of 237 Royal Noctule
bats in 2017– violates Article 8 (L)., which states that “where a significant adverse effect in biological
diversity has been determined pursuant to Article 7, regulate or manage the relevant processes and
categories of activities.”58 Runbeti did not implement any mitigating measures. They even declined to the
request of the Chiroptera Crusaders when it recommended them to implement mitigating measures. 59
Runbeti’s act of not implementing mitigating measures causes harm not only to the population of the bat
species, but also to other species, such as migratory birds, that pass through or live within the area where
the wind farm is situated.
Runbeti’s failure to implement mitigation measures or changes in the wind farm project led to an
increased number of royal noctule deaths at the end of 2018. Some mitigation techniques that could have
56
Supra note, 5.
57
Arnett, E., May, R.F., Mitigating Wind Energy Impacts on Wildlife: Approaches for Multiple Taxa, (2016), page
33.
58
Convention of Biological Diversity (CBD). Article 7, Section l.

59
Record, para. 18.

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been employed are the following: avoidance, which “includes dissuading wildlife away from wind
turbines to reduce the risk of collision”; luring, which is the enhancement offsite habitats or replacing
habitat lost through compensation or creating artificial food or prey sites and; deterrence, which is the use
of acoustic devices, electromagnetic (EM) fields, or visual deterrents to purposefully alarm and frighten
wildlife in order to prevent them from entering a wind facility or nearing a turbine. 60
Conclusively, the government of Runbeti’s unwillingness to create mitigation measures nor changes in
the project before proceeding with next phases, constitutes a violation of these obligations.
II.2. Inaction of the government of Runbeti’s inaction despite after the Chiroptera
Crusaders’ report regarding the deaths of 237 dead Rroyal Nnoctule bats in 2017,
which is a vulnerable species under IUCN Red List,– at the end of 2017 violates
Article 8 (L), which states that “where a significant adverse effect in biological
diversity has been determined pursuant to Article 7, regulate or manage the relevant
processes and categories of activities.” 61 Runbeti did not implement any mitigating
measures. They even declined to the request of the Chiroptera Crusaders when it
recommended them to implement mitigating measures. 62 Runbeti’s act of not
implementing mitigating measures causes harm not only to the population of the bat
species, but also to other species, such as migratory birds, that pass through or live
within the area where the wind farm is situated.
II.3.
II.4. It should be noted that the Royal Noctule is a vulnerable species under the International
Union for Conservation of Nature (“IUCN”) Red List. Runbeti’s This failure to create
implement any mitigation measures or changes in the wind farm project led found to an
increased number of royal noctule deaths at the end of 2018. Some mitigation techniques
that could have been employed are the following: avoidance, which “includes dissuading
wildlife away from wind turbines to reduce the risk of collision”; luring, which is the
enhancement offsite habitats or replacing habitat lost through compensation or creating
artificial food or prey sites and; deterrence, which is the use of acoustic devices,
60
Gartman, V., et al. Mitigation Measures for Wildlife in Wind Energy Development, Consolidating the State of
Knowledge-Part 2: Operation, Decommissioning. (2016)
61
Convention of Biological Diversity (CBD). Article 7, Section l.

62
Record, para. 18.

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electromagnetic (EM) fields, or visual deterrents to purposefully alarm and frighten wildlife
in order to prevent them from entering a wind facility or nearing a turbine. 63
II.5. TRegrettablyRegrettably, the government of Runbeti, unwilling to create mitigation
measures nor changes in the project, wants to proceed with the wind farm project’s phase
2. as expressed in the diplomatic note dated 8 January 2019..
II.6. Runbeti failed to maintain viable populations Royal Noctuleof species in their natural
surroundings. because the bats are categorized as vulnerable species.
Article 8 (d) provides articulates that parties are to “promote the protection of ecosystem, natural habitats,
and the maintenance of viable populations of species in natural surroundings.” 64 Even pPrior to the
construction of the wind farm project, both the Royal Noctule and the Architerpan Long-nosed bat have
beenare already tagged classified as “vulnerable” in the IUCN Red List. This means that both species
will have athe projected population loss for both species projection in the next ten (10) years or the next
three (3) generations, whichever is longer, isof at (a) 50% wherein from causes of reduction which are
“clearly reversible, understood, and have ceased” or at loss of 30% wherein the from causes of
reductionwhich “may not have ceased or may not be understood or may not be reversible.” 65 In
determining the status of a a small population size, vulnerable species have a population loss projection
of 10% or a population less than 10,000 but more than 2,500 in the next ten (10) years or three (3)
generations.66 AdditionalHence, Amoredditional deaths caused by wind turbines, in addition caused by
the wind turbines to the bats’ natural death, is detrimental and can further decrease the population of royal
noctule in Architerpo in the next 10 years or in the next 3 generations. Runbeti failed to consider these
63
Gartman, V., et al. Mitigation Measures for Wildlife in Wind Energy Development, Consolidating the State of
Knowledge-Part 2: Operation, Decommissioning. (2016)
64
Convention of Biological Diversity (CBD). Article 8, Section d.

65
IUCN Red List. (August 2019)
66
Id.
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projections as their EIA is only for the first phase of the project in 2016. Hence, the current wind farm
project does not help secure and maintain a viable population for the royal noctule.
2.3 Runbeti violated the obligation to regulate biological resources under Article 8C.
Under 8 (c) of CBD, parties are to “regulate or manage biological resources important for the
conservation of biological diversity whether within or outside protected areas…” Runbeti violated the
obligation to regulate biological resources. The royal noctule, considered a biological resource in the
continent of Architerpo, helpsArchiterpo, helps in pollination, seed dispersal and insect control.
Moreover, they are also indicator species, species used “to detect changes in natural surroundings as well
as to indicate negative or positive impacts.”67 Within two years since the construction of Pphase 1 of
Runbeti’s wind farm project, in addition to the deaths of several other bat species, 594 (237 in 291729017
and 356 in 2018) were found dead near the wind turbines. Considering the average annual reproduction
of 1.5, 594 deaths is a significant loss that Runbeti failed to prevent. manage seeing as there were more
deaths in 2018 than the preceding year.has caused in the creation of the wind farm project.
2. Runbeti violated Art. 14 in relation to Art. 5 of CBD.
Art. 14(a) of the CBD requires parties to introduce appropriate procedures requiring
environmental impact assessment of its proposed projects that are likely to have significant adverse
67
Parmar, T.K., Rawtani, D., & Agrawal, Y.K.. Bioindicators: the natural indicator of environmental pollution (2016)
24
_________________________________________________________________________________
effects on biological diversity,68 and to cooperate for the conservation and sustainable use of biological
diversity. In development projects, these obligation extends to all phases, such as planning, assessment of
impact, decisions to proceed, implementations, and post-implementation monitoring. 69 Runbeti violated
this by conducting an inappropriate Environmental Impact Assessment (“EIA”) and failure to conduct
post-implementation monitoring.
a. THE EIA CONDUCTED BY RUNBETI IS INAPPROPRIATE AND NOT
PROPORTIONAL TO THE RISK POSED BY THE WIND FARM.
The court held in Costa Rica v Nicaragua that where there is a risk of significant transboundary
harm, the obligation to assess this risk arises. 70 This obligation is also enshrined in the generally accepted
principle of Due Diligence where it requires parties to act appropriately and proportionally to the risk of
transboundary harm.71 As such, State shall use an effective EIA in order for a full evaluation to done and
the purpose of EIA is met.72 The EIA should include the potential effects of the activity on persons,
68
CBD, art. 14(a).

69
Pulp Mills, ¶3 (separate opinion by Dong,J.)
70
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road
in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), 2015 I.C.J. 667., at para 156.
71
Report of the Commission to the General Assembly on the work of its fifty-third session, U.N. DOC.
A/CN.4/SER.A/2001/Add.1 (Part 2) (2001), 154.
72
Draft Article on Transboundary Harm, art. 7; Pulp Mills,25

at 105.
_________________________________________________________________________________
property and the environment of other States.73 Here, Runbeti’s EIA was only for the first phase of the
wind farm project in 2016,74 and failed to take into consideration the possible long term effect of the
project. Given that Runbeti deliberately constructed said wind farm in a known migration and feeding
route of the Royal Noctule, their EIA is grossly disproportionate to the risk it posed.
b. RUNBETI’S EIA IS NOT COMPREHENSIVE.
Even if Runbeti claimed that their EIA is appropriate, Runbeti failed to conduct a comprehensive
EIA which is a hallmark in determining whether a State employed the best practices in conducting an
EIA.75 Pertinently, a comprehensive EIA contemplates the use of best available evidence as basis for the
decision to proceed with the project.76 Furthermore, although practices vary around the world, a
fundamental component of an EIA necessarily involves finding an alternative site to mitigate adverse
73
Draft Article on Transboundary Harm, art. 7, cmt.8.
74
Record, para. 19.
75
Arnold and Hanna, Best Practices in Environmental Assessment, CANADIAN INTERNATIONAL RESOURCES
AND DEVELOPMENT INSTITUTE (2017) [hereinafter “Arnold and Hanna”]; Hanna and Noble, Using a Delphi
study to identify effectiveness criteria for environmental assessment, 33 IMPACT ASSESSMENT AND PROJECT
APPRAISAL 116 (2015).
76
26
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impacts.77 However, as clearly evidenced in the record, Runbeti, despite having no reason to believe that
construction in in a known royal noctule migration route, feeding and roosting areas, and commuting
routes.78 would not result in detrimental effects, deliberately constructed the wind farm therein.
c. THERE WAS NO PROPER MONITORING THROUGHOUT THE ENTIRE
PROCESS.
Art. 14 is also enshrined in the Pulp Mills Case, where the ICJ held that the project's nature,
magnitude, and likely adverse impact on the environment should be taken into consideration. 79
Furthermore, this Court also held that when executing a project, States should monitor its effects
throughout the entire process. The monitoring should include assessing impacts and adjusting or
activating an exit strategy when necessary. 80 Merely conducting an EIA for the first phase of the projects
is not sufficient to identify the possible threats posed by the project. Moreover, they disallowed entry to
the Chiroptera Crusaders in January of 2019 which presupposes there hasn’t been any proper monitoring
in the wind farm for almost two years now.
77
CBD Decision VI/7, Identification, monitoring, indicators and assessments, UNEP/CBD/COP/6/7 (2002) Annex.
78
Record, para. 17.

79
Pulp Mills, ¶205.
80
CBD Decision VI/7, Identification, monitoring, indicators and assessments, UNEP/CBD/COP/6/7 (2002) Annex.
27
_________________________________________________________________________________
d. RUNBETI VIOLATED ITS DUTY TO COOPERATE IN RELATION TO ART. 14.
The duty to cooperate81 is enshrined in the CBD where it dictates that States must cooperate for
the conservation and sustainable use of biodiversity. 82 This obligation is further emphasized in the Rio
Declaration83 and the Stockholm Declaration.84
i. Runbeti did not participate in any meaningful negotiation with Alducra.
Cooperation is an overriding principle of international law that ensures that community interests
are taken into account vis-à-vis individualistic State interests,85 and this entails meaningful negotiations.86
Runbeti violated this duty by failing to collaborate or negotiate, much less communicate, with Alducra as
regards the wind farm project. From the first deaths in 2017 until 2019, Runbeti had approximately two
81
Rio Declaration, prins. 7,9,14 &27; Corfu Channel (Uk v. Alb), 1949 I.C.J. 4(April 22)
82
CBD, art.5
83
Rio Declaration on Environment and Development, June 14, 1992, Principle 2, 31 I.L.M. 874
84
Stockholm Declaration, Principle 21, 11 I.L.M. 1416.
85
Mox Plant Case Sep. Op. J. Wolfrum, P.4.
86
Southern Bluefin Tuna (N.Z., Australia v Japan) ITLOS Case No. 3, Aug. 27, 1999, ¶60; Case concerning Land
Reclamation by Singapore in and around the Straits of Johor (Malaysia v. Singapore).
28
_________________________________________________________________________________
years to coordinate with Alducra in enacting mitigating measures, which they have not done so and even
initially declined to do back in 2016. Even until Alducra sent a diplomatic note to respectfully ask
Runbeti to implement mitigation measures, they have repeatedly declined, hampering any hope for a
meaningful negotiation.
i. Runbeti failed to perform the
obligations of notification and
consultation.
Article 14.1(c) of the CBD states that Parties shall notify and consult with other States with
regard to activities which are likely to have a significant adverse effect on the biodiversity of other States.
Consultations and negotiations between the two States must be genuine, must comply with the rules of
good faith and must not be mere formalities.87 In line with this, States are obliged to sufficiently disclose
all necessary information about the activity to potentially affected States in advance and provide an
opportunity to review and discuss a planned activity. 88 In the Pulp Mills case, this Court held that States
should fulfill the notification obligation so other States likely affected could conduct preliminary
assessment as soon as possible.89 However, Runbeti did not notify or consult with Alducra. In fact, it was
Chiroptera Crusaders who notified Alducra about the project.
87
Lake Lanoux Arbitration (Fr. v. Spain), 1957 R. Int’l. Arb. Awards 281 (Nov.16), p.199.
88
DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 525 (DAVID
HUNTER 3rd edition 2007).
89
29 2010 I.C.J. Rep. 14, ¶105 (Apr. 20).

Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgement,
_________________________________________________________________________________
III. The limiting language of CBD does not justify Runbeti’s actions.
IV. Runbeti has brushed off Alducra’s objections by citing the limiting language
of the conventions. However, the limiting language of the CBD agreements
does not justify non-compliance.90 The principle of pacta sunt servanda
mandates that every treaty must be performed by Parties in good faith. 91
Furthermore, the terms of a treaty must be read in light of the treaty’s object
and purpose.92 Runbeti’s defense clearly fails considering that CBD’s purpose
is essentially focused with the conservation of biodiversity.
V. RUNBETI VIOLATED CMS AND EUROBATS BY CONSTRUCTING THE
WIND FARM ALONG THE AREA WHERE IT IS IMPORTANT FOR THE
CONSERVATION STATUS OF THE BATS.
90
Ornella Ferrajolo, State Obligations and Non-compliance in the Ramsar System, 14, J. OF IɴO’ʟ WILDLIFE L.
ᴀWI PᴏP’ʏ, 248, 243-260 (2011).
91
Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155 U.N.T.S. 331.
92
Vienna Convention on the Law of Treaties, art. 31 ¶ 1, May 23, 1969, 1155 U.N.T.S. 331.
30
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CMS aims to conserve and protect the migratory species. Parties who are range states of migratory
species listed in appendix II shall endeavor to conclude AGREEMENTS93 that shall aim to restore the
migratory species concerned to a favorable conservation status.94 Appendix II of the CMS enumerates the
species which has an unfavorable conservation status.95 The Arciterpan long-nosed bat and the Royal
Noctule are both listed under appendix II of the CMS96 and thus, have an unfavorable conservation status.
EUROBATS is an agreement within the context of Article IV (3) of CMS, and aims to restore the
conservation status. Here, as a Range State, Runbeti failed to conserve and protect the migratory bats and
their habitats by causing damage and disturbance, and by not implementing the necessary actions to avoid
or even mitigate the adverse impacts of their wind farm project to the migratory bats and their habitats.
V.1.1 Runbeti, as a Range State, violated the CMS when it failed to take any action to
uphold its obligations under the EUROBATS agreement.
Range State, as defined in CMS, is a State that exercises jurisdiction over any part of the range of
a migratory species.97 Range means all the areas of land or water that a migratory species inhabits, stays
in temporarily, crosses or overflies at any time on its normal migration route.98 Here, Runbeti is a Range
93
Article IV (3), CMS.

94
Article V, CMS.
95
Article
96 IV (1), CMS.
Record,
97 para 14.
Article I (h), CMS.

98
31
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State of the Royal Noctule, since part of the range of the Royal Noctule are within the territory and
jurisdiction of Runbeti. It is known that the area is where the normal migration route, critical feeding and
roosting areas and commuting routes of the Royal Noctule is located.99
V.1.2 Runbeti violated Article III (2) of the EUROBATS when it failed to protect
important sites and feeding areas of the bats from damage and disturbance.
Article III, paragraph 2 of the EurobatsEUROBATS agreement expressly statesd the obligation of
the state parties to identify those within its own area of jurisdiction which are important for the
conservation status, including the shelter and protection of bats. The EurobatsEUROBATS agreement
also statesd that the state parties should take into account the necessary economic and social
considerations to protect such sites from damage or disturbance. This provisionArticle was violated by
Runbeti by constructing phase one of the wind farm project despite having the prior knowledge that the
site is part of the migratory pattern and feeding area of the royal noctule. 100
Article I (f), CMS.

99
Record, para. 17.

100
EUROBATS Agreement Article III (2)

32
_________________________________________________________________________________
a. Runbeti deliberately ignored the fact that the construction and
operation of the wind farm project is within the important sites and
feeding areas of the bats.
Article III (2) of the EUROBATS mandates Parties to identify those sites within its own
jurisdiction which are important for the conservation status, including for the shelter and protection of the
bats, and endeavors Parties to identify the important feeding areas of the bat species. Parties must protect
those sites from damage or disturbance.101
V.1.3 Runbeti failed to take full account of the precautionary principle as recomen ded by
CMS Resolution 7.5.
CMS Resolution 7.5 recognizes that one of the possible negative impacts of wind turbines to the
migratory species is the destruction or disturbance of permanent or temporary feeding, resting, and
breeding habitats. With this, the resolution recommends to the Parties to identify areas where migratory
species are vulnerable to the wind turbines and where turbines should be evaluated to protect migratory
species; and to take full account of the precautionary principle in the development of wind turbine plants
and to develop wind energy parks taking into account of environmental impact data and monitoring
information as it emerges and taking account of exchange of information provided through the spatial
planning processes. Here, Runbeti, knowing that the location of their wind farm project is within the
feeding and roosting areas of the Royal Noctule102, they deliberately ignored this fact, and the
101
Article
102 III (2), EUROBATS.
Record, para. 17.

33
_________________________________________________________________________________
recommendations provided by CMS Resolutions 7.5. They did not take full account of the precautionary
principle in developing their wind farm project. With this,
V.1.4 Runbeti failed to implement the recommendations of CMS Resolution 11.27.
CMS Resolution 11.27 urges Parties to: (1) apply appropriate Strategic Environment Assessment
(SEA) and EIA procedures, when planning the use of renewable energy technologies, avoiding existing
protected areas in the broadest sense and other sites of importance to migratory species;.103 (2) undertake
appropriate survey and monitoring both before and after deployment of renewable energy technologies to
identify impacts on migratory species and their habitats in the short- and long-term, as well as to evaluate
mitigation measures104; and (3) apply appropriate cumulative impact studies to describe and understand
impacts at larger scale, such as at population level or along entire migration routes. 105 Here, Runbeti did
an EIA but did not appropriate survey and monitoring measures in order to identify the impacts of their
wind farm project on migratory species and their habitats. Runbeti even barred the Chiroptera Crusaders
from monitoring days after they reported a total of 593 deaths of Royal Noctule, and several other bat
species near the wind farm of Runbeti.106
103
CMS Resolution 11.27, para. 2.12.

104
CMS Resolution 11.27, para 2.2.

105
CMS Resolution 11.27, para. 2.3.

106
Record, para. 24.

34
_________________________________________________________________________________
V.1.5 Runbeti did not take into account the habitats of the Royal Noctule and other
migratory bat species as recommended by EUROBATS Resolution 8.4.
RelevantlEUROBATS Resolution 8.4 recommends Parties to take into account that some habitats
and areas, where a negative impact on bats is predicted, may not be suitable for the operation of wind
turbines107, and thus, exclude wind energy developments form these areas. 108 Here Runbeti, knew the
risks, and possible adverse impacts of their wind farm project. They were constantly warned by the
Chiroptera Crusaders, that the location of their wind farm project has the possibility to adversely impact
the migratory bats.109 Runbeti disregarded the concerns expressed by the conservation group, and the
recommendations provided by the EUROBAT Resolution 8.4, and proceeded with the construction and
operation of their wind farm project. As a result of their deliberate disregard to the recommendations,
deaths of Royal Noctule and several other bat species were found by the Chiroptera Crusaders near the
location of the wind farm.110Here, Runbeti violated Article III (2) of the EUROBATS agreement and
disregarded the guidelines and recommendations provided by the EUROBATS and CMS Resolutions by
pushing through with the construction and operation of their wind farm, knowing the possibility of it
causing damage and disturbance to the protected sites and feeding areas of the bat species. Runbeti had
knowledge that the location of their wind farm project is within the area where the migration route,
feeding and roosting areas, and commuting routes of the royal noctule is located. Furthermore, they
107
EUROBATS Resolution 8.4, para. 2.

108
EUROBATS Resolution 8.4, para 3.

109
Record, para. 18.

110
Record, para. 21.

35
_________________________________________________________________________________
disregarded the concerns that the Chirpotera Crusaders expressed to them, that the proposed location for
the construction and operation of their wind farm project has the potential to negatively impact the bat
population111. As a result of their deliberate disregard of the recommendations and guidelines provided by
CMS and EUROBATS, their wind farm project resulted to the deaths of 593 royal noctules, and the
deaths of the several other bat species in the first two (2) years of its operatio
b. Despite knowing there is risk, Runbeti did not implement any mitigating measures.
Article III (2) of the EUROBATS mandates Parties to protect the identified sites which are
important for the conservation status of the bats, and endeavors the Parties to protect the identified
important feeding areas of the bats. 112 One of the recognized possible negative impact of wind turbines to
migratory species, as provided by CMS Resolution 7.5, is the destruction or disturbance of permanent or
temporary feeding, resting, and breeding habitats. 113 With this, CMS Resolution 11.27 urges Parties to
undertake appropriate survey and monitoring measures both before and after deployment of renewable
energy technologies to identify impacts on migratory species and their habitats in the short- and long-
term, as well as to evaluate mitigation measures. 114
111
Record, para. 18.

112
Article III (2), EUROBATS.

113
CMS Resolution 7.5.

114
CMS Resolution 11.27.

36
_________________________________________________________________________________
a. Here, Runbeti knew that the location of their wind farm project has the potential to
negatively impact the sites important for the conservation status of the bats, and their important
feeding areas, since it is known that it is where the migration route, critical feeding and roosting
areas, and commuting routes of the royal noctule is located. 115 Despite knowing this fact, Runbeti
pushed through with the first phase of construction and operation of their wind farm project. 116
Although they did an EIA prior to the construction of the first phase of the wind farm project, they
did not implement post-construction monitoring measures. They even barred the Chiropteran
Crusaders from monitoring impacts of their wind farm project after it reported a total of 593
deaths of the royal noctule, and the deaths of several other species of bat in the first two (2) years of
their wind farm’s operation.Runbeti’s wind farm project caused damage and disturbance to the
sites which are important for the conservation status of the bats, and to their important feeding
areas.
b. Runbeti deliberately ignored that the construction of the wind farm is within the
important sites and feeding areas of the bats.
Runbeti violated the EUROBATS Agreement and guidelines by pushing through with the
construction and operation of their wind farm. Runbeti had prior knowledge that the area of the first phase
as well as the succeeding phases is part of the migratory pattern of the royal noctule and it also serves as a
ground for the species feeding. 117 They disregarded the mitigating measures and the suggestion of
115
Record, para. 17.

116
Record, para 19.

117
Record, para. 17
37
_________________________________________________________________________________
Chiroptera Crusaders for the protection of the royal noctule and other species of bats. 118 While they
allowed the Chiroptera Crusaders to monitor the effects on the bats after the construction, it already
resulted in the death of 237 royal noctules in 2017 and 356 royal noctules in 2018. 119 This is already
considered as a significant number since bats are considered as the slowest reproducing animal in the
world, only giving birth to 1 living offspring that only happens in the spring. 120 With this, Runbeti caused
damage and disturbance to the sites which are important for the conservation and protection of the bats
and their habitat.121
c. Despite knowing there is risk, Runbeti did not implement any mitigating measures.
EUROBATS EUROBATSEUROBATS
In this case, Runbeti violated the Eurobats Agreement and guidelines by pushing through with the
construction and operation of their wind farm. Runbeti had prior knowledge that the area of the first phase
as well as the succeeding phases is part of the migratory pattern of the royal noctule and it also serves as a
ground for the species feeding. 122 They disregarded the mitigating measures and the suggestion of
118
Record, para. 20
119
Record, para. 21
120
BatWorlds, Bat Reproduction (2013), (https://www.batworlds.com/bat-reproduction/)

121

122
38
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Chiroptera Crusaders for the protection of the royal noctule and other species of bats. 123 While they
allowed the Chiroptera Crusaders to monitor the effects on the bats after the construction, it already
resulted in the death of 237 royal noctules in 2017 and 356 royal noctules in 2018. 124 This is already
considered as a significant number since bats are considered as the slowest reproducing animal in the
world, only giving birth to 1 living offspring that only happens in the spring. 125 With this, Runbeti caused
damage and disturbance to the sites which are important for the conservation and protection of the bats
and their habitat.126
Record, para. 17
123
Record, para. 20
124
Record, para. 21
125
BatWorlds, Bat Reproduction (2013), (https://www.batworlds.com/bat-reproduction/)

126

39
_________________________________________________________________________________
V.1.6 Runbeti violated Article III (2) of the EUROBATS when it failed to protect
important sites and feeding areas of the bats from damage and disturbance.
V.1.7 Runbeti’s wind farm project caused damage and disturbance to the sites which are
important for the conservation status of the bats.
V.1.8 Runbeti’s wind farm project caused damage and disturbance to the important
feeding areas of the bat species.
V.1.9 Runbeti violated Article III (6) of the EUROBATSEUROBATS when it failed to
take any action to safeguard the population of bats which are threatened by their
wind farm project.
Article III (6) of the EUROBATSEUROBATS mandates Parties to take additional action
to safeguard the populations of bats which it identifies as being subject to threat. Wind turbines are
known to be a threat to the population of the bats, and EUROBATSEUROBATS Resolution 8.4
recommends to Parties who have wind farms to implement post-construction monitoring, and mitigating
measures, in order to prevent or mitigate the adverse effects of wind farms to the bat species. Relevantly,
CMS Resolution 11.27 urges Parties to undertake appropriate survey and monitoring both before and after
deployment of renewable energy technologies to identify impacts on migratory species and their habitats
in the short-and long-term, as well as to evaluate mitigating measures. 127 Here, knowing that their wind
farm project is a threat to the population of the bats, Runbeti failed to implement monitoring, and
mitigating measures as recommended by the CMS and EUROBATSEUROBATS Resolutions.
127

40
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a. Runbeti’s wind farm project is a threat to the population of the bat species.
EUROBATSEUROBATS Resolution 8.4 recommends to Parties that are Range States to any bat
population to exclude wind energy developments from areas with a special focus on bat protection 128, and
to undertake careful physical planning with special attention to the mortality of the species, particularly
those that are long-lived and have low fecundity. 129 This is because EUROBATSEUROBATS recognizes
the threat of wind turbines on the population of bat species 130, and is concerned that it might affect the
conservation status of the species. There are different adverse effects of wind turbines to the population of
bat species. Bat collision, the loss or shifting of flight paths or patterns, and barotrauma 131 are some of the
effects that harm the bat species. In countries like Canada and U.S., bats have been killed by wind
turbines either directly from collision with the turbine towers or blades, or from barotrauma. 132
128
EUROBATS Resolution 8.4, para. 3.
129
130
EUROBATS Resolution 8.4.
131
Kunz, T.H., Braun de Torrez, E., Bauer, D., Lobova, T., and Fleming, T.H., Ecosystem services provided by
bats: New York Academy of Sciences, v. 1223, p. 1–38 (2011).
132
Arnett, E.B., Brown, W.K., Erickson, W.P., Fielder, J.K., et al., Patterns of Bat Fatalities at Wind Energy
Facilities in North America, Journal of Wildlife Management, 72:61-78, (2008).
41
_________________________________________________________________________________
Bats are mammals with a low reproductive rate, which means that the population of the bat
species takes longer time to recover from losses. 133 The location of the wind turbine of Runbeti is
important to the bat population since it is the migration route, feeding and roosting areas, and commuting
routes of the bat population are located.134 With this, and the fact that the number of bat deaths near the
wind turbines from 2017 – 2018 is increasing135, it is evident enough that the wind farm project of
Runbeti is a threat to the population of the bat species.
e. Runbeti did not implement post-construction monitoring.
Post-construction monitoring is one of the recommendations provided under
EUROBATSEUROBATS Resolution 8.4, and of CMS Resolution 11.27 for Parties to implement in order
to prevent or mitigate the adverse effects of wind turbines to the population of the bats. Parties are
encouraged to undertake pre- and post-construction, including mortality rate assessment 136, and to make
the impact assessments and post-construction monitoring publicly available. 137 This is to ensure that the
133
Barclay R.M.R., Harder, L.D., Life histories of bats: Life in the slow lane. Bat Ecology, Kunz TH, Parsons S
(University of Chicago Press, Chicago), pp 209–253, (2003).
134
Record, Para. 17.
135
Record, para. 21.
136
EUROBATS resolution 8.4 para. 7.
137
42
_________________________________________________________________________________
population of the bat species will not be threatened by the wind turbines, and if are threatened, necessary
actions will be implemented immediately in order to reduce or prevent the threat.
Runbeti did conduct a pre-construction assessment, which was their EIA 138, but it neither did
post-construction assessment, nor mortality rate assessment which were also recommended by the
resolution. The Chiroptera Crusaders, a regional bat conservation group, who did the post-construction
and mortality rate monitoring139, were even barred140 from monitoring the impact of their wind farm
project from the bats after they found and reported a total of 593 dead Royal Noctules, and several dead
specimens of other bat species in the first two years of operation of their wind farm project. 141 The actions
of Runbeti from not implementing post-construction, and mortality rate monitoring, to banning the
conservation group concerned for the well-being of the bat species from conducting a post-construction,
and mortality rate monitoring is against the recommendations provided by the EUROBATSEUROBATS
and CMS resolutions to the Parties.
EUROBATS resolution 8.4, Para. 11.
138
Record, para. 19.
139
Record, para. 20.
140
Record, para. 24.
141
Record, para. 21.

43
_________________________________________________________________________________
f. Runbeti failed to implement mitigating measures.
EUROBATSEUROBATS Resolution 8.4 also recommends to Parties to implement
mitigating measures such as blade feathering, installing higher cut-in wind speeds, or shutting down the
turbines temporarily.142 Blade feathering is adjusting the angle of the rotor blade parallel to the wind, or
turning the whole unit out of the wind, to slow or stop blade rotation. This measures would help to
prevent or mitigate the adverse effects of wind turbines to migratory species. In the U.S. a study was
conducted to prove the effectivity of the mitigating measures. The study shows that a feathered turbine,
and a change in cut-in speeds significantly reduced the bat mortality rate within the area of the wind
farm.143
Here, it is already evident that the wind farm project of Runbeti is a threat to the population of bat
species in the region. Runbeti did neither of the recommendations encouraged by the resolution. Runbeti
even declined to implement mitigating measures when the Chiroptera Crusaders recommended it to them
prior to operation of the wind turbine. 144 The lack of necessary action to be taken on the part of Runbeti
142
EUROBATS Resolution 8.2, para 13.
143
Arnett, E.B., et al., Studies to develop bat fatality search protocols and evaluate bat interactions with wind
turbines in West Virginia and Pennsylvania: an interim report. Bat Conservation International, Austin,
Texas, U.S.A. (2004); Arnett E.B., et al., Effectiveness of changing wind turbine cut-in speed to reduce bat
fatalities at wind facilities. An annual report submitted to the Bats and Wind Energy Cooperative. Bat
Conservation International, Austin, Texas, U.S.A. (2009).
144
Record, para. 20.

44
_________________________________________________________________________________
shows its lack of intention to safeguard the population of the bat species that are threatened by their wind
farm project.
VI. IN ANY EVENT, RUNBETI VIOLATED CUSTOMARY
INTERNATIONAL LAW AND GENERALLY ACCEPTED
PRINCIPLE OF INTERNATIONAL LAW.
1. RUNBETI DID NOT COMPLY WITH THE BREACHED ITS DUTY NOT TO
CAUSE TRANSBOUNDARY HARM.
The duty not to cause transboundary harm145 is a recognized rule of conventional146 and customary
international law.147 States have the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other states or of areas beyond the limits of national
jurisdiction.148 This duty is breached if there is a physical connection between the activity concerned and
145
U.N. Conference on Environment and Development, Rio Declaration on Environment and Development, U.N. Doc.
A/CONF.151/26/Rev.1, Principle 2 (Aug., 12, 1992).
146
CBD. Art 3.
147
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, 19, ¶ 29 (July 8
148
45
_________________________________________________________________________________
the damage caused, human causation, harm that meets a level of gravity that demands legal action, and
transboundary movement of injurious effects.149 All elements are present in this case.
g. There is a physical relationship and human causation between wind farms and the
damage in Alducra.
The requirement under the Trail Smelter Arbitration case is requires that the nexus between the
alleged transboundary harm and the activity must be established by clear and convincing evidence. The
ensuing death of 594 bats150 is clearly a result of barotrauma, collision and other effects caused by the
wind farm151 constructed by Runbeti. The physical relation and human causation is undeniable because
bBats are migratory species152 and previous studies have shown that substantial portion of bat fatalities
149
Xue Hanqin, Transboundary Damage in International Law 4 (2003).
150
Record, para. 21
151
Barotrauma is a significant cause of bat fatalities at wind turbines
<Erin F.BaerwaldGenevieve H.D'AmoursBrandon J.KlugRobert M.R.Barclay>,

Department of Biological Sciences, University of Calgary, Calgary, AB Canada T2N 1N4.
152
Voigt CC, Lehnert LS, Petersons G, Adorf F, Bach L. 2015Wildlife and renewable energy: German politics cross
migratory bats. Eur. J. Wildl. Res. 61, 213–219.
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consistently occur during migration period when they collide with wind turbines. 153 This is due to a
number of reasons i.e. auditory and heat attraction, linear corridor, and forest edge effect.154
Furthermore, the Royal Noctule is a, being akin to temperate bat which means theys have large
lungs and hearts, high blood oxygen-carrying capacity, and blood-gas barriers thinner than those of
terrestrial mammals. These physical characteristics make them vulnerable to barotrauma caused by rapid
air-pressure reduction near moving turbine blades. 155 The ensuing death of 594 bats156 is clearly a result of
barotrauma, collision and other effects caused by the wind farm 157 constructed by Runbeti. Here, the
physical relation and human causation is undeniable.
153
Voigt CC, Lenhert LS Petersons G, Adorf F. Bach L. 2015 Wildlife and renewable energy: German politics cross
migratory bats. Eur. J. Wildl. Res. 61, 213-219.
154
Source is from the Internet but we will look for a journal

155
1. Barotrauma is a significant cause of bat fatalities at wind turbines< Erin
F.BaerwaldGenevieve H.D'AmoursBrandon J.KlugRobert M.R.Barcla y>,
Department of Biological Sciences, University of Calgary, Calgary, AB Canada
T2N 1N4
156
Record, para. 21
157

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h. The wind farms resulted in transboundary movement of harmful effects.
In the Mox Plant case, Ireland claimed that it was injured by transboundary movements of
radioactive substances introduced into the Irish Sea by the United Kingdom in violation of its
international commitments.158 Likewise, Aas the first phase of the wind farm project is only 5 km from
the border159 of the two countries, it is evident that the damage caused in the jurisdiction of Runbeti can
easily cross over to Alducra as the bats cover almost 2,000 km during migration. Being akin to the
Nyctalus Noctula.,160 it can be reasonably inferred that the Royal Noctule has the same travel range of 80-
750 km north-northeast to summer roosting sites with the longest journey recorded for Nyctalus noctula at
2,347 km. As the first phase of the wind farm project is only 5 km from the border 161 of the two countries,
it is evident that the damage caused in the jurisdiction of Runbeti can easily cross over to Alducra as the
bats cover almost 2,000 km during migration.
i. The death of the bats constitutes significant harm.
158
Mox Plant Case (IR. v. UK), Order of 3 December 2001.

159
Record, para.17
160
Record, par 14
161
Record, para.17
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Significant harm is an injury that leads to real detrimental effects in environment measurable by
factual and objective standards.162 Case in point, as the Royal Noctule Royal Noctule is akin to nyctalus
noctule, it is reasonable to presume that it is a temperate bat, which means their migration is most evident
in females.163 Moreover, they only produce 1 to 3 offsprings only in a 70 to 73 gestation period. Hence,
with more females dying and with objectively minimal reproduction, the deaths of 594 bats can lead to
real detrimental effects on the environment of Architerpo as they are indicator species and they are vital
to the flora and fauna of the continent.164
RUNBETI VIOLATED THE PRECAUTIONARY PRINCIPLE
The precautionary principle165 has attained the status of customary international law, 166 as it is
enshrined in Principle 15 of the Rio Declaration which provides that scientific uncertainty should not be
permitted to postpone the implementation of protective measures where there are threats of serious or
162
Report of the International Law Commission [“ILC”], Draft Articles on Prevention of Transboundary Harm from
Hazardous Activities, U.N. GAOR, U.N. Doc. A/56/10 (2001), Art. 2 ¶4.
163
McCracken & Wilkinson 2000, Senior et al. 2005, Safi et al. 2007, Ibáñez et al. 2009.
164
Record, para. 14.

165
Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area,
Case No. 17, Advisory Opinion of Feb. 1, 2011, ITLOS Rep. 10 ¶13
166
ALEXANDER GILLESPIE, CONSERVATION, BIODIVERSITY AND INTERNATIONAL LAW 464 (2011).

49
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irreversible damage.167 This principle has been adopted in different multilateral conventions such as in the
Convention of Biological Diversity, Convention on the Ban of the Import into Africa and the Control of
Transboundary Movement and Management of Hazardous Wastes within Africa, Convention for the
Protection of the Marine Environment of the North-East Atlantic, and the Biosafety Protocol and served
as a guide for tribunals such as the International Court of Justice 168 and the Court of the European
Justice169 in settling disputes and in deciding cases. This principle is also reflected in Principle 13 of the
WCEL Declaration wherein, in order to achieve the progressive development and enforcement of the
environmental rule of law, shall regularly revise and enhance laws and policies based on the most recent
scientific knowledge and policy developments. 170 Here, all the elements of precautionary principle is
present.
The precautionary principle mandates states to anticipate, avoid, and mitigate threats to the
environment. It requires that when an activity raises threats of harm to human health or the environment,
precautionary measures should be taken even if some cause and effect relationships are not fully
established scientifically.171 This has two elements.An alternative approach to the precautionary principle
167
Principle 15, Rio Declaration.
168
See Dispute concerning the MOX Plant, International Movements of Radioactive Materials, and the Protection of
the Marine Environment of the Irish Sea (Ireland v UK).
169
See European Communities — Measures concerning Meat and Meat Products (Hormones), WTO Doc
WT/DS26/AB/R, WT/DS48/AB/R, AB-1997-4 (1998) [16] (Report of the Appellate Body).
170
Principle 13 Progression, IUCN World Declaration on the Environmental Rule of Law (2016).
171
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/126. Principle15 (14 June 1992).
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has two elements: (1) First, there must be a potentially risky activity; second,(2) the proponent has the
burden of proving that its proposed act poses no risk to the environment or human health. In Runbeti’s
case, all elements and standards of precautionary principle concurred.
1. There was a foreseeable harm.threat.
Runbeti was warned by the Chiroptera Crusaders of the potential negative impacts. 172 In addition,
the wind farm is on land that is part of a migration route and includes feeding and roosting areas and
commuting routes for the royal noctule.
3. The threatforeseeable harm was significant.
4.
The deaths of 593 bats pose unprecedented risk on their survival as established in Part II A (1a),
(1b) and (1c), as well as Part III (A)(3).. and Part C (1c).
There was lack of scientific uncertainty regarding the impacts of the construction of the wind
farm.There was lack of full scientific uncertainty regarding the impacts of the construction of the
wind farm.
Given the warning from Chiroptera, the existence of the threat is undeniable, however, despite
numerous of studies established in Part II A(1a), (1b) and (1c), as well as Part III (A)(3), Alducra is still
not certain as to how the construction may have impacted the bats. 173 The lack of conclusive scientific
evidence in this specific circumstance does not negate their responsibility to impose precautionary
172
Record, para. 18
173
Record, para. 22
51
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measures or shut down the project completely. Requiring a proof of a causal link and the environmental
damage before taking action would be impractical, and grave environmental harm would go unchecked.
Runbeti violated precautionary principle when it failed to implement mitigation measures to prevent
environmental degradation due to the bats’ deaths – as they are important species.
Cooperation is an overriding principle of international law that ensures that community interests are taken
into account vis-à-vis individualistic State interests.174 In other words, the duty to cooperate requires a
‘voluntary coordinated action of two or more States to serve a specific objective.’ 175 Runbeti violated this
duty by failing to collaborate, much less communicate, with Alducra as regards the wind farm project.
From the first deaths in 2017 until 2019, Runbeti had approximately two years to coordinate with Alducra
in enacting mitigating measures, which they have not done so and even initially declined to do back in
2016
174
175
Rüdiger Wolfrum, Cooperation, International Law ofin Max Planck Encyclopedia of Public International
Law(2010).
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RUNBETI BREACHED ITS DUTY NOT TO CAUSE TRANSBOUNDARY HARM The

duty not to cause transboundary harm176 is a recognized rule of customary international law. 177 States have
the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national jurisdiction. 178 This duty is breached
if there is a physical connection between the activity concerned and the damage caused, human causation,
harm that meets a level of gravity that demands legal action, and transboundary movement of injurious
effects.179
There is a physical relationship and human causation between wind farms and the damage in
Alducra.The Trail Smelter Arbitration case requires that the nexus between the alleged transboundary
harm and the [__?__] must be established by clear and convincing evidence.The ensuing death of 593
176
177
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226, 19, ¶ 29 (July 8
178
179
Xue Hanqin, Transboundary Damage in International Law 4 (2003).

53
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bats180 is clearly a result of barotrauma, collision and other effects caused by the wind farm 181 constructed
by Runbeti. Here, the physical relation and human causation is undeniable.
The wind farms resulted in transboundary movement of harmful effects.Being akin to the Nyctalus
Noctula, it can be reasonably inferred that the Royal Noctule has the same travel range of 80-750 km
north-northeast to summer roosting sites with the longest journey recorded for Nyctalus noctula at 2,347
km. As the first phase of the wind farm project is only 5 km from the border 182 of the two countries, it is
evident that the damage caused in the jurisdiction of Runbeti can easily cross over to Alducra as the bats
cover almost 2,000 km during migration.
The death of the bats constitutes significant harm.
RUNBETI VIOLATED INTERNATIONAL LAW WHEN IT FAILED TO ACT WITH
DUE DILIGENCE IN THE PROCESS OF CREATING THE WIND
FARM.
180
Record, para. 21
181

182
Record, para.17.
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Due diligence183, which is a generally accepted principle of international law,184 requires States to
take measures to prevent their proposed projects from posing harmful outcomes to other States. In
development projects, the obligation extends to It is applied to all phases of the project, such as planning,
assessment of impact, decisions to proceed, implementations, and post-implementation monitoring.185
Thus, Runbeti should have exercised due diligence in the process of constructing the wind farm as well
post-implementation monitoring to prevent harmful impacts to Alducra, which includes complying with
obligations under conventions and customary international law.
Runbeti violated due diligence by conducting an inadequate Environmental Impact Assessment
(“EIA”) and failure to conduct post-implementation monitoring.
).”).”).
CONDUCTED BY RUNBETI AND NOT PROPORTIONAL TO THE RISK POSED BY THE WIND
FARM
183
Timo Koivurova, Due Diligence, ¶1 (2010), https://perma.cc/BP2E-A9TM

184
Iron Rhine Arbitration. Belgium v. Netherlands, Award, ICGJ 373 (PCA 2005), Permanent Court of Arbitration
[PCA].Timo Koivurova, Due Diligence, ¶1 (2010), https://perma.cc/BP2E-A9TM
185
Pulp Mills, ¶3 (separate opinion by Dong,J.)

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A. In order to act with “due diligence”, the origin State’s conduct must be
“appropriate and proportional to the degree of risk of transboundary harm
in the particular instance.”186 Thus, in order to fulfil this obligationdue
diligence requires a full evaluation of, the risk of transboundary harm must
be assessed which hence imposes on States to conduct through an effective
EIAs.187 Further, the court in Costa Rica v Nicaragua held that where there is
a risk of significant transboundary harm, the obligation to assess this risk
arises.188 The EIA should include the potential effects of the activity on
persons, property and the environment of other States. 189 HoweverHere.
Runbeti’s, the EIA was only for the first phase of the wind farm project in
2016,190 and faileding to take into consideration the possible long term effect
of the project.
Runbeti also failed to observe the best practices in conducting an EIA.191

186
Report of the Commission to the General Assembly on the work of its fifty-third session, U.N. DOC.
A/CN.4/SER.A/2001/Add.1 (Part 2) (2001), 154.
187
Draft Article on Transboundary Harm, art. 7; Pulp Mills, at 105.

188
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua); Construction of a Road
in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), 2015 I.C.J. 667., at para 156.
189
Draft Article on Transboundary Harm, art. 7, cmt.8.

190
Record, para. 19.

191
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Even if Runbeti claimed that their EIA is sufficient, they still constructed the wind farm in a known royal
noctule migration route, feeding and roosting areas, and commuting routes. As Iin the Pulp Mills Case,
the ICJ held that the project's nature, magnitude, and likely adverse impact on the environment should be
taken into consideration.192 Here, it is of no ground for Runbeti had no reason to believe that such
construction in a high-risk location would not result in detrimental effects. Furthermore, this Court also
held in Pulp Mills that, when executing a project, States should monitor its effects throughout the entire
process. The monitoring should include assessing impacts and adjusting or activating an exit strategy
when necessary.193 Merely conducting an EIA for the first phase of the projects is not sufficient to identify
the possible threats posed by the project. Conclusively, Runbeti violated due diligence as its EIA was
inadequate.
Runbeti failed to perform the obligations of notification and consultation.
Article 14.1(c) of the CBD states that Parties shall notify and consult with other States with
regard to activities which are likely to have a significant adverse effect on the biodiversity of other States.
States are obliged to sufficiently disclose all necessary information about the activity to potentially
affected States in advance and provide an opportunity to review and discuss a planned activity. 194 In the
192
Pulp Mills, ¶205.
193
LOOK FOR AN IUCN GUIDELINE OR EUROBATS RECOMMENDATION FOR THIS.
194
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Pulp Mills case, this Court held that States should fulfill the notification obligation so other States likely
affected could conduct preliminary assessment as soon as possible. 195 However, Runbeti did not notify
and or consult with Alducra. In fact, it was Chiroptera Crusaders who notified Alducra about the project.
Runbeti did not comply with the duty of cooperation.
The duty to cooperate196 hasve crystallized into a binding custom in view of widespread intensive
State practice and compelling opinio juris.197 Furthermore, the duty to cooperate under CBD in particular
requires that Contracting Parties shall, as far as possible and as appropriate, cooperate with other
Contracting Parties, directly, or where appropriate through competent international organization
concerning matters of mutual interest, for the conservation and sustainable use of biological diversity. 198
Cooperation is an overriding principle of international law that ensures that community interests are taken
into account vis-à-vis individualistic State interests. 199 In other words, the duty to cooperate requires a
‘voluntary coordinated action of two or more States to serve a specific objective.’ 200 Runbeti violated this
DAVID HUNTER ET AL., INTERNATIONAL ENVIRONMENTAL LAW AND POLICY 525 (DAVID
HUNTER 3rd edition 2007).
195
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgement, 2010 I.C.J. Rep. 14, ¶105 (Apr. 20).
196
Rio Declaration, prins. 7,9,14 &27; Corfu Channel (Uk v. Alb), 1949 I.C.J. 4(April 22)
197
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 253 (July 8).
198
Convention on Biological Diversity, Art. 5, June 5, 1992, 1760 U.N.T.S. 79.
199
200
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duty by failing to collaborate, much less communicate, with Alducra as regards the wind farm project.
From the first deaths in 2017 until 2019, Runbeti had approximately two years to coordinate with Alducra
in enacting mitigating measures, which they have not done so and even initially declined to do back in
2016.
VII. IN ANY CASE, RUNBETI’S VIOLATIONS ARE NOT JUSTIFIABLE
JUST BECAUSE THEY ARE CLIMATE CHANGE MITIGATION
EFFORTS.RERunbeti violated the precautionary principle
The precautionary principle mandates states to anticipate, avoid, and mitigate threats to the environment.
It requires that when an activity raises threats of harm to human health or the environment, precautionary
measures should be taken even if some cause and effect relationships are not fully established
scientifically. This has two elements. First, there must be a potentially risky activity; second, the
proponent has the burden of proving that its proposed act poses no risk to the environment or human
health. In Runbeti’s case, all elements and standards of precautionary principle concurred.
There was foreseeable harm.
Rüdiger Wolfrum, Cooperation, International Law ofin Max Planck Encyclopedia of Public International
Law(2010).
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Runbeti was warned by the Chiroptera Crusaders of the potential negative impacts. 201 In addition, the
wind farm is on land that is part of a migration route and includes feeding and roosting areas and
commuting routes for the royal noctule.
The foreseeable harm was significant.
The deaths of 593 bats pose unprecedented risk on their survival as established in Part I A (1a) (1b) (1c)
and Part C (1c).
There was scientific uncertainty regarding the impacts of the construction of the wind farm.
States, pursuant to the UNFCCC and the Paris agreement, acknowledge that the adverse effects of climate
change are a common concern of mankind, and further state that protection of the climate system for
present and future generations is of paramount importance. 202 However, Runbeti cannot use the Paris
Agreement in the guise of climate change mitigation if it harms another country, the biological diversity
and the Migratory Species. The Paris Agreement prohibits harming the environment in the process of
developing renewable energy because increased environmental harm cuts against the very spirit of the
agreement.203 Additionally, Article 2 states the “Agreement, in enhancing the implementation of the
201
Record, para. 18
202
United Nations Framework Convention on Climate Change, preamble, 1771 UNTS 107 (1994) [hereinafter
“UNFCCC”].
203
See Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 13, 2015, in Rep. of
the Conference of the Parties on the Twenty-First Session, U.N. Doc. FCCC/CP/2015/10/Add.1, pmbl. (2016).
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[UNFCCC], including its objective, aims to strengthen the global response to the threat of climate change,
in the context of sustainable development.”204 As such, the detrimental effects in Alducra caused by
Runbeti violates the very essence of UNFCCC and the Paris Agreement where it aims to mitigate climate
change through sustainable development. As evidenced in the record and as established in Part I (A), (B),
(C), and (D), the wind farm project is not a form of sustainable development. Concomitantly, [Runbeti’s
violations are not justifiable as climate change mitigation measures under the UNFCCC.][Runbeti’s
violations are not justifiable as climate change mitigation measures under the UNFCCC a.]
ccording to Articles 26 and 31 of the Vienna Convention on the Law of Treaties, all international
obligations must be interpreted in good faith and in the context in which they were intended and with
their specific goals and purposes in mind.205 Accordingly, States Parties must interpret their obligations
under each instrument in good faith; that is, ‘honestly, fairly and reasonably’.206 Thus, compliance with
one treaty doesn’t justify a violation to another as this constitutes bad faith, unfair and unreasonable
interpretation. Here, Runbeti have other options to comply with the Paris Agreement without violating
other international obligations, by using other types of renewable energy such as solar, thermal,
photovoltaics, bioenergy, hydro or tidal.207
204
See Paris Agreement to the United Nations Framework Convention on Climate Change, Dec. 13, 2015, in Rep. of
the Conference of the Parties on the Twenty-First Session, U.N. Doc. FCCC/CP/2015/10/Add.1, art. 2(2016).
205
Vienna Convention on the Law of Treaties art. 26,31, May 23, 1969, 1155 U.N.T.S. 331 (1969)[hereinafter
VCLT].
206
Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties (2009) 425.
207
Boyle, G. (2004). Renewable energy (p. 456).

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I. ALDUCRA DID NOT VIOLATE INTERNATIONAL LAW
CONCERNING ITS TRADE MEASURES FOR TAPAGIUM
PRODUCTS.
A. ALDCURA DID NOT VIOLATE ITS TREATY OBLIGATIONS WHEN IT
PASSED A STATUTE INSTITUTING CERTAIN REQUIREMENTS
RELATED TO THE IMPORT AND SALE OF TAPAGIUM IN ALDUCRA.
Alducra submits that it did not violate its treaty obligations because its internal regulations are
consistent with the general and specific duties under Article VIII of ARTA. Even assuming that the trade
regulations are trade restrictive than necessary, these are justified under Article X of ARTA.
1. Did not violate Article VII
2. Alducra did not violate Article VIII when it taxed tapagium produced from
cloned agaves and imposed a labeling requirement on all tapagium products.
Under ARTA, Member States are allowed to impose internal quantitative regulations and internal
taxes affecting the internal sale as long as the application thereof will not favor or offer domestic
production protection.208
208
Article VIII (1) of ARTA.

62
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a. Alducra did not violate Article VIII (2) when it taxed the sales of
tapagium produced from cloned agaves.
Internal taxation is allowed if it is consistent with the general rule that the tax measure does not afford
protection to domestic production209 and complies with the specific rule that the foreign products are not
taxed in excess of the domestic products.210
i. Runbeti’s tapagium products are not taxed in excess of
those applied to the labelled domestic products.
A tax measure infringes on the national treatment obligation if it imposes a heavier tax burden on
the imported products than on the domestic product. 211 The determination of tax discrimination takes into
account the applicable internal tax, taxation methods, and tax collection rules. 212 In Thailand—Cigarettes
(Philippines), there was tax discrimination because resellers of imported cigarettes will incur VAT
liability. In contrast, resellers of domestic products are unaffected by the tax liability because they are
exempted from the VAT.
Compared to the present case, the tax measure is not an infringement of Article VIII (2). The 20%
tax measure is only an exception to the rule. When a tapagium product is sold in Alducran market,
regardless of origin, it is not taxed. The tax on sales only applies if the production of tapagium is non-
209
Article VIII (1) of ARTA

210
Article VIII (2) of ARTA.

211
Panel Report, Argentina—Hides and Leather, para. 11.243.

212
Panel Report, Japan—Alcoholic Beverages I, para. 5.8.

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compliant with the bat-safe farming practice provided under the 2019 statute. Aldcura’s statute does not
tax imported tapagium simply because they are from Runbeti. Nor can it be assumed that Runbeti’s
tapagiums are the sole subjects of the tax measure since there can be unlabeled tapagium products from
Alducra as well. Instead, Runbeti’s tapagium may only be taxed if they are produced from cloned agaves.
ii. The tax imposed on the sales of tapagium produced from
cloned agaves does not afford protection to the domestic
products.
Dissimilar taxation is discriminatory if the foreign products are taxed in a way to protect domestic
production.213 The protective application of a tax measure can be discerned from the design, the
architecture and the revealing structure of a measure. 214 In Korea—Alcoholic Beverages, there was
apparent discrimination in the structure of Korea's taxation on liquor products since the operation thereof
exclusively subjects imported products to high tax brackets while the domestic products are subject to low
tax brackets.
Juxtaposed to the present case, the structure of the tax measure differentiates tapagium from
cloned agaves and tapagium from organic agaves. In effect, any tapagium products can be taxed. Further,
the tax measure's operation will not result in the dominance of locally produced tapagium in the Alducran
market. There can be no insulation of Runbeti’s tapagium products from the Alducran market because a
significant volume of tapagium comes from Runbeti. 215 Lastly, the tax measure proceeds are not used to
support the domestic production of tapagium, but it is intended to support regional bat conservation
213
Appellate Body Report, Japan—Alcoholic Beverages II, p.33.

214

215
Record, para. 12
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organizations or projects.216 Therefore, Runbeti’s qualms on the protectionist tendency of the tax
measure217 is only an unfounded fear.
b. Alducra did not violate Article VIII (3) when it imposed a
labeling requirement on all tapagium products imported to and sold in
Alducra.
i. The labeling requirement is applied to like products.
Under international law, the concept of treatment no less favorable depends upon the likeness of
the products.218 In US—Gasoline, chemically-identical imported and domestic gasoline are lie products
under the Article III (4) of the GATT.219
Herein, Alducra imposed the labelling requirement and tax measure to both imported and
domestic tapagium products.220 This is justified because Runbeti’s tapagium products and Alducra’s
tapagium products are like products concerning their nature and end-uses in a given market. Both
216
Record, para. 26.

217
Record, para. 26.

218
US — Clove Cigarettes, paras. 110–112

219
Panel Report, US—Gasoline, para. 6.9

220
Record, para. 28
65
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tapagium products come from the same plant species, Agave, and produced in the same farming method.
Regardless of the country of origin, tapagium products planted using unsafe bat practices pose the same
degree of risk to the Architerpan long-nosed bats. Lastly, the products in question are directly competitive
with each other since only Alducra and Runbeti are the only producers of agave. 221
iii. Aldcura’s standard of a bat-safe label does not
discriminate Runbeti.
Labeling schemes are discriminatory if the label is based on where-produced standard or
regulation based on country of origin. 222 The element of discrimination lies in the varying product
characteristics imposed per country of origin 223, thus resulting in applying different standards to both
imported and local products.
Such is not the standard imposed by Alducra’s statute. Alducra’s labeling requirement did not
require an indication of where the tapagium were produced. 224 Instead, Alducra categorized tapagium
products based on their farming practice. Aldcura’s standard for a bat-safe label is based on how-
produced standard which has been recognized as a reasonable standard in labelling schemes. A how-
produced standard specified the processing method used for making the product. 225 It operates much like a
221
Record, para. 14.

222
22 U.S.C. § 6032(h) (2001).

223
US-Cool, para. 256, p.113.

224
Annex I, Record, p.15

225
Steve Charnovitz, Environmental “PPMS” in the WTO: Deubnking the Myth of Illegality.
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product standard.226Accordingly, this standard does not violate the obligation not to discriminate
concerning imported products.227
3. Did not violate Article IX
4. Even assuming Alducra’s statute violates Article VIII, it is justified under
Article X of ARTA.
Although an internal regulation violates Article VIII of ARTA, it is nevertheless valid if it falls
within the general exceptions under Article X of ARTA, subject to the following conditions: (1) the
measure must fall under at least one of the exceptions listed in the paragraphs of ARTA; and (2) the
measure satisfies the requirements of the chapeau of that provision. 228 Alducra submits that the statute
complies with the conditions under Article X of ARTA and is, therefore, justified.
a. Aldcura’s statute is justified under the ARTA exceptions.
226
Joahne Scott, On Kith and Kin (and Crustaceans): Trade and Environment in the EU and WTO, in THE EU, THE
WTO, AND THE NAFTA: TOWARDS A COMMON LAW OF INTERNATIONAL TRADE? 139 (J.H.H. Weiler
ed., Ist ed. 2000)
227
Charnovitz, p.68.
228
Appellate Body Report, Indonesia—Import Licensing Regimes, para. 5.96.

67
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i. The trade measure was necessary for protecting public
morals.
A trade objective falls within the meaning of public morals if it is a societal interest that could be
described as vital and important in the highest degree. 229 Under international law, animal welfare
protection has already been considered an objective in protecting public morals. 230 Alducra asserts that its
trade regulations are justified under ARTA X (a) because the bats' protection is equivalent to protecting
Alducra’s public morals. Alducra has been resolute in working to save the Architerpan long-nosed bats. 231
The record is replete with evidence showing that conservation of bats is part of Aldcura’s public policy:
(1) Aldcura’s 2015 statute; 232 (2) their diplomatic exchanges with Runbeti; 233 and participation in
international agreements and conventions concerning the bats. 234 It is only logical that Alducra considers
the adverse impacts of the cloning method on bat welfare as an issue of ethical or moral nature.
Further, the legitimacy of the statute’s objective is coupled with necessity In the US – Gambling
case, an examination of whether a trade measure was “necessary” involves a process of “weighing and
balancing a series of factors”, to wit: “(a) the importance of interests or values that the challenged
229
Appellate Body Report, Colombia-Textiles, para. 5.105.

230
Panel Reports, EC-Seal Products, para 7.632.

231
Record, para. 28.

232
Record, paras. 14 and 15.

233
Record, paras, 22, 25.

234
Record, para. 6
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measure intended to protect; (b) extent to which the challenged measure contributes to the realization of
the end pursued by that measure; and (c) the trade impact of the challenged measure. 235 Applying the
necessity test, the labeling requirement and the tax measure are directed at protecting the public moral
concern on the risks posed by the unsafe bat farming practices to the Architerpan long-nosed bats. In the
EC – Seals Products case, the Panel considered the collective participation of the citizens within the
European Union as end-consumers of the seal products and their exposure to the market for seal products
as an aspect of the public moral concern on seals protection.236Contrasted to the present case, Alducran
citizens have collective participation as consumers of tapagium produced from organic methods. The
institution of bat-safe labels contributes to protecting the Architerpan long-nosed bats by ensuring that the
Alducran market is not used to encourage Agave farmers to produce tapagium products that adversely
affect the bats.
iv. The trade measure was necessary for protecting plant
life and human health.
In EC—Asbestos, the policy is justifiable under Article XX (b) if it falls within the range of
policies designed to protect animal life or health. 237 A risk must exist before the invocation of the
protection of biotic species. 238 Herein, the trade regulations are justified under Article X (b) in light of the
underlying policy of prohibiting unsafe bat farming practices to protect plant life and human health. The
235
US – Gambling, ¶6.477.
236
EC – Seals Products, supra note 41, ¶5.318.

237
Panel Report, EC—Asbestos, para. 8.184

238
EC – Asbestos, Appellate Body Report, para. 162.

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cloning method places the agaves at risk. 239 This has already been proven right in agave producing
countries as diseases have recently killed off more than a third of the agave plants in some areas. 240
Agaves and Architerpan long-nosed bats share an intimate relationship; the one cannot survive without
another. The pollination by the bats helps in maintaining the genetic diversity of agaves. 241 If agaves are
cloned, bats are removed from the process of reproduction. The consequences of cloning are grave as this
affects the genetic diversity of the agave species, consequently weakens the agave plant and makes them
vulnerable to diseases and pests. 242 Alducra’s legislation is also justified as a way of protecting the
farmers' welfare since the corollary use of pesticides in cloning agave jeopardizes the farmers 243 The
effects of chronic exposure to pesticides can lead to several diseases, including different types of cancer
since these substances' genotoxic and mutagenic capacity are high. 244
Under the necessity test, the trade measures contribute to the ends pursued. Eco-labels are
designed to promote sustainable use of natural resources by raising environmental standards in
commodity245 The imposition of eco-labels will compel producers to change their production or process
239
Kathleen Wilcoxhttps://vinepair.com/articles/tequila-sustainable-bat-friendly/
240
https://www.bats.org.uk/about-bats/why-bats-matter/bats-as-pollinators
241
https://daily.jstor.org/plant-of-the-month-agave/
242
243
Kelemu, Segenet, et al. "Harmonizing the agricultural biotechnology debate for the benefit of African farmers."
African Journal of Biotechnology 2.11 (2003): 394-416.
244
Demirhan, O., et al. "Chromosomal Aberrations in agricultural farmers exposed to pesticides." Adv Toxicol Toxic
Effects 3.1 (2019): 015-022.
245
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consistent with environmentally friendly standards. 246 The consequence of the reintroduction will restore
the genetic diversity of agave and stop the farmers' use of hazardous chemicals in maintaining the cloned
agaves.
v. The trade measure relates to the conservation of
exhaustible natural resources.
An exhaustible natural resource is not limited to the conservation of "mineral" or "non-living"
natural resources and that living species, which are in principle "renewable", "are in certain circumstances
indeed susceptible of depletion, exhaustion and extinction, frequently because of human activities." 247
Following this definition, the Architerpan long-nosed bats and agaves are exhaustible natural resources
within the meaning of Article X (g). The Architerpan long-nosed bats are susceptible to depletion due to
the cloning method in agave plantations in both Alducra and Runbeti. They have become considered
vulnerable species.248 On the other hand, agave products are also vulnerable to reduction because of the
harmful effects of the cloning method to the plant's diversity. 249 Hence, both are exhaustible natural
resources in need of conservation management.
Carolyn Deree, Eco-labelling and Sustainable Fisheries, IUCN, 1999

246
Jasper Stein, The Legal Status of Eco-Labels and Product and Process Methods in the World Trade Organization,
American Journal of Economics and Business Administration 1 (4): 285-295, 2009
247
US – Shrimp, Appellate Body Report, para. 128.

248
Record, para. 14.

249
See II.A.2.ii
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A measure is for conservation if it limits or halts the activities creating the danger of extinction
and facilitating the replenishment of that endangered species. 250
vi. There are no other reasonable alternative measures that
Alducra could have pursued in their objective to
conserve and protect the Architerpan long-nosed bats.
As pronounced in Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes, the
import restriction could be considered to be necessary if there was no alternative measure consistent with
the General Agreement, or less consistent with it, which Thailand could reasonably be expected to
employ its health objectives.251
In this case, Alducra has exhausted the available alternative measures—usually the conclusion of
bilateral agreements or the effort to initiate bilateral cooperation--before its recourse to trade measures.
When the first-best option of multilateral cooperation is unavailable, an affected government may
consider using a trade PPM to address transborder problems indirectly. 252 Herein, Aldcura initiated a
negotiation with Runbeti concerning the enactment of a statute adopting the same bat-safe farming
practice in the territory of Runbeti. 253 However, this was not heeded by Runbeti as the welfare of the
250
Appellate Body Report, China—Rare Earths, para. 5.89.

251
Thailand—Restrictions on Importation of and Internal Taxes on Cigarettes

252
Charnovitz, p. 73.
253
Record, para. 25.

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Architerpan long-nosed bats and the agave are not high importance issues. 254 Without the political will of
the Runbeti to conserve biodiversity, bilateral cooperation is no longer feasible.
A lenient regulatory measure is also alternative not reasonably available because it will only be
counterproductive in achieving the statute's objective. In EC—Seals Products, the Appellate Body ruled
that making the welfare standards or the certification and labeling requirements more lenient would make
the alternative measure more reasonably available but would not meaningfully contribute to addressing
EU public moral concerns regarding seal welfare. The same goes for the case in Alducra. Without any
punitive measure, a lenient labeling requirement would not be apt in addressing the risks faced by the
Architerpan long-nosed bats and agave since the compliance to bat-safe labels will not be assured.
c. Aldcura’s statute is applied in a manner consistent with the
chapeau of Article X of ARTA.
The chapeau prohibits applying a measure at issue as would constitute arbitrary discrimination
between countries where the same conditions prevail, unjustifiable discrimination with the same
qualified, and it operates as a disguised restriction on international trade. 255 In this case, Aldcura satisfied
the conditions provided under the chapeau of Article X of ARTA as the measures were evenly applied
between two countries wherein similar conditions prevail, and the measures proved to be not a disguised
restriction to the trade of tapagium.
254
Id.
255
Appellate Body Report, US—Gasoline, p.23.

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i. The trade measures are evenly applied between two
countries wherein similar conditions prevail.
The similarity of the conditions should only consider the relevant factors to establish arbitrary or
unjustifiable discrimination in light of the specific character of the measure at issue and the particular
policy objective that is provisionally justified. 256 Herein, Aldcura and Runbeti grow agave and produce
tapagium; in fact, only Alducra and Runbeti are engaged in agave farming and tapagium production in
Architerpo.257 Both are also range states where the Architerpan long-nosed bats are found. 258Therefore, it
is appropriate that both of them shall be subject to a labeling requirement and internal tax regulation to
ensure compliance with the bat-safe farming practice. If farmers and producers from both countries shall
comply with the organic farming method, this will yield to a positive result to the bats, agaves, farmers,
and the whole biodiversity.
256
Appellate Body Reports, EC—Seal Products, paras. 5.299-5.309.

257
Record, para. 11.

258
Record, para. 14.
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vii. The trade regulations are not disguised restrictions on
international trade.
In US—Gasoline, the phrase ‘disguised restrictions’ on international trade includes or refers to
'concealed and unannounced restriction'; but it does not limit such 'concealed and unannounced
restriction'.259 This concealment is made in the view of protecting the domestic products. 260
In this case, Alducra’s trade regulations are not disguised restrictions since Alducra has been
transparent to Runbeti concerning the statute regulating tapagium products imported to and sold in
Aldcura. Alducra observed substantial and procedural due process in the imposition of the trade
measures. They sufficiently informed Runbeti of the purpose behind the trade legislation and the means
of achieving it.261 Alducra did not fail to inform the tax measure's scope and the standard of the labeling
requirement.262 Lastly, Alducra’s legislation gave Runbeti ample time to comply with the legislation. 263
259

260
Panel Report, Brazil – Measures Affecting Imports of Retreaded Tyres (adopted 17 December 2007) WT/
DS332/R, as modified by Appellate Body Report WT/DS332/AB/R, para 7.355
261
Record, para. 26.

262
Id.
263
Id.
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B. ALDUCRA DID NOT UNDERMINE RUNBETI’S SOVEREIGNTY WHEN
IT IMPOSED A LABELLING REQUIREMENT TO ALL TAPAGIUM
PRODUCTS.
Alducra submits that it did not undermine Runbeti’s sovereignty because Alducra’s imposition of a
labelling requirement is not an imposition of Alducra’s environmental policy to Runbeti. Further, Runbeti
is precluded from invoking sovereignty as it is a signatory to multilateral environmental agreements
relating to the conservation of bats and preservation of agaves.
1. Aldcura’s imposition of a labelling requirement is not an imposition of
Alducra’s environmental policy to Runbeti.
a. The mandatory nature of the labelling requirement is valid under
international law.
In EC-Sardines, a measure is deemed as a technical regulation if: (1) the document applies to an
identifiable product or group of products; (2) the document must lay down one or more product
264
characteristics; and (3) compliance with these characteristics must be mandatory.
Here, Aldcura’s labeling scheme satisfies the three elements. 265 Alducra’s labeling scheme
regulates the characteristics of the tapagium products compulsorily through the statute's enforcement. It
264
Appellate Body Report European Communities – Trade Description of Sardines (“EC – Sardines”)
WT/DS231/AB/R, adopted 23 October 2002, paras. 189-195 referring to European Communities - Measures
Affecting Asbestos-Containing Products, WT/DS135/AB/R , adopted 5 April 2001, paras. 66-70.
265
Record, para. 26
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prescribes the use of the bat-safe farming practice in tapagium products and marks them through the bat-
safe label. It should be emphasized that the labeling requirement only enforces the observance of the
general standard of bat-safe farming practice, not the replica of the practice imposed in Alducra’s 2015
statute to its domestic farmers. Aldcura’s 2019 statute only includes general bat-safe label requirements.
Although the technical regulation is mandatory, the detailed specifications and parameters were still left
to the farmers' discretion in Runbeti. In sum, the labeling requirement, coupled with the tax measure,
guarantees a high degree of applying a bat-safe practice. However, agave farmers from both states still
have the liberty to choose the manner of executing and demonstrating conformity to a bat-safe label's
general requirements.
b. Aldcura’s labeling requirement is consistent with its obligations
under several multilateral environmental agreements.
The imposition of unilateral trade measures to enhance a treaty's effectiveness is a usual state
practice under international law.266 For instance, in 1950 the United States enacted a law prohibiting the
import of whale products taken in violation of the Whaling Convention. 267 The Whaling Convention itself
did not provide for the use of trade measures as a means of enforcement. 268
Juxtaposed it to the present case, Alducra’s statute works to further its obligations under EUROBATS,
CMS, and CBD—to which Runbeti is also a party to. The statute seeks to stop the growing expansion and
266
Charnovitz, p.71
267
16 U.S.C. § 916c(a) (1994).

268
International Convention for the Regulation of Whaling with Schedule of Whaling Regulations, Dec. 2, 1946, 161
UNTS 72.
77
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intensification of agricultural products that endanger the population of bats and agaves' genetic
diversity.269 Through the passage of the statute, Alducra advances Article III (2) of EUROBATS by
protecting the bats' feeding areas. The imposition of tax disincentivizes farmers from allocating their
lands to cloned agaves. If farmers return to bat-safe farming practice, the Architerpan long-nosed bats will
already have access to their food source. Alducra also complied with their obligations under Article IV of
CMS when they became a signatory to the EUROBATS and enacted measures to conserve and protect the
bat species population and their habitats. The obligations stipulated in EUROBATS are for the benefit of
the endangered migratory species270 and to the ultimate restoration of these migratory species to a
favorable conservation status.271 Lastly, the statute complies with the obligation to preserve and maintain
knowledge and practices of indigenous and local communities embodying traditional lifestyles relevant to
conservation and sustainable use of biological diversity. 272 Herein, the organic method was initially
followed by the local communities of Alducra and Runbeti. During the rise of the demand, the agave
producers resorted to using the cloning method—which is not a sustainable way of utilizing the benefits
of agave.
269
Food and Agricultural Organization of the United Nations, Impacts of farming intensification on wildlife and
ecosystem health, available at:
http://www.fao.org/ag/againfo/home/en/news_archive/2012_Impacts_of_farming_intensification_on_wildlife.html
(last accessed 14 October 2020).
270
Article IV of CMS.
271
Article V of CMS.
272
Article 8(j) of the CBD.

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5. Runbeti is precluded from invoking the principle of non-intervention when
it became a signatory to several MEAs.
A State cannot escape its responsibility on the international treaties by referring to the domestic
legal laws.273 In connection to the obligation to adhere to the provisions of the VCLT, the
extraterritoriality of the MEAs is considered. The rationale on the application of the extraterritoriality of
the MEAs is the claim to the universality, meaning that the advantage of a certain State’s statutes may be
of advantage to another country as well. 274 For environmental issues, the element of universality can be
grounded on the relationship of humanity and the elements of the environment. 275 This is shown by the
extraterritorial application of CBD276 and CMS.277
Herein, Runbeti cannot invoke their domestic laws to justify their non-compliance to the treaty
obligations. As a signatory to the VCLT, the articles of the Convention are legally binding and must be
ratified to be part of the domestic laws. Treaties must be enacted with good faith and noncompliance must
be justified. Interpretation of the phrase “good faith” implies reasonableness and binding obligations for
the state parties.278 Performance in good faith on the provisions of the treaty is expected of Runbeti. Both
Alducra and Runbeti are signatories to different MEAs including CMS, CBD and EUROBATS.
273
Art. 27, Vienna Convention on the Laws of Treaties

274
Vordemayer, Markus, “The Extraterritorial Application of Multilateral Environment Agreements” (2018)

275
World Charter for Nature

276
CBD, note 10, art. 4

277
CMS Resolution 10.4

278
Supra, 2.
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Alducra’s imposition of the labeling requirement can be considered as an extraterritorial application of
multilateral environmental agreements. Bats are migratory species and their migratory patterns include
the territory of Runbeti.279 The bats are considered a part of the natural biodiversity of Architerpo and thus
falls into the rationale of universality. Aside from that, the bats are protected under Alducra’s domestic
laws as they are endemic to the continent and the bats are considered as vulnerable species. 280 Needless to
say, the bats are part of the culture and a major distinguishing factor of Alducra. The CBD and CMS can
be applied to justify the extraterritorial application of the MEAs.
II. ALDUCRA’S LEGISLATION DID NOT VIOLATE
ARTICLE IX AS IT DOES NOT RESTRICT TAPAGIUM
PRODUCTS FROM RUNBETI.
B. ALDUCRA DID NOT VIOLATE ARTICLE IX WHEN IT IMPOSED A
LABELLING REQUIREMENT ON TAPAGIUM PRODUCTS.
State parties to ARTA are prohibited from imposing quantitative restrictions. 281 Herein, Aldcura’s
institution of a labelling scheme and imposition of 20% tax on sales does not violate this general
prohibition because the measures do not operate as a restriction on imported tapagium products.
279
Record, par. 17
280
Record, par. 14
281
Article IX, ARTA, Record, p.9

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VII.1.1 Alducra’s labelling requirement does not operate as a quantitative
restriction.
A trade measure falls within the meaning of Article IX of ARTA if it restricts the entry of a
product from any contracting party directly in terms of an absolute prohibition or restriction on the
quantity of imports.282 Herein, Alducra’s requirement of adopting bat-safe labels on tapagium does not
operate to restrict the entry of tapagium products from Runbeti. The labelling requirement does not
include the banning of imported tapagium products which do not comply with the labelling requirement.
Neither does it ban the sale of tapagium products using the cloning method. Further, the labelling
requirement does not operate to restrict or regulate the number of labelled or unlabeled tapagium products
from Runbeti. At best, the labelling scheme is only a qualitative restriction.
VII.1.2 Aldcura’s labelling requirement is only a technical regulation to trade which
is beyond the scope of Article IX of ARTA.
Article IX of ARTA only covers quantitative restrictions.
a. The prohibition under Article IX of ARTA does not cover technical regulations.
282
India-Quantitative Restrictions, WT/DS90/R, Para. 5.128

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In India—Autos, the scope and limitations of Article III and Article XI of the GATT are defined.
It was stated that these two provisions have distinct scope of application as measures affecting eh
importation of products are regulated under the rules on general elimination of quantitative restrictions
while those affecting imported products are dealt with the national treatment obligation. 283 Since decision
of appellate bodies are subsidiary sources in interpreting ARTA 284, the interpretation made in India-Autos
shall likewise be applied in defining the respective of scope of Article VII and VII of ARTA since the
regional agreement is primarily modeled on the GATT. 285
b. The labelling requirement is only a technical regulation which falls within the scope
of Article VIII.
The imposition of national regulations are allowed under the trade regime in international law. 286 In
EC-Sardines, a measure is deemed as a technical regulation if: (1) the document applies to an identifiable
product or group of products; (2) the document must lay down one or more product characteristics; and
(3) compliance with these characteristics must be mandatory. 287 Here, Aldcura’s labelling scheme satisfies
283
Panel Report, India—Autos, para. 7.220.

284
Article XIV of ARTA, Record, p.9.

285
Record, para. 12.

286
Steve Charnovitz, Environmental “PPMS” in the WTO: Deubnking the Myth of Illegality, YJIL Vol. 27:59.
287
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the three elements.288 Alducra’s labelling scheme regulates the characteristics of the tapagium products in
a compulsory fashion through the enforcement of the statute. It prescribes the use of bat-safe farming
practice in tapagium products and mark them through the bat-safe labels.
C. ALDUCRA’S IMPOSITION OF 20% TAX ON SALES IS LIKEWISE NOT
A QUANTITATIVE RESTRCITION.
1. Aldcura’s imposition of tax on sales is not a form of market access
restriction under Article IX.
A domestic regulation should not be regarded as market access restriction simply because it has
the effect of banning certain imports.289 Border measures or market access restrictions are measures
imposed at the border or on importation.290 Domestic regulations are referred to as behind the border
measures because they are measures affecting imports once they have cleared customs. 291 Between the
two, border measures are protectionist in nature because they only apply to imports. 292 Custom duties are
288
Record, para. 26
289
Joost Pauwelyn, Rien ne Va Plus?: Distinguishing domestic regulation from market access in GATT and GATS,
World Trade Review (2005), 4: 2, 131–170.
290
Pauwelyn, p. 133-134.
291
Pauwelyn, p. 134
292
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indirect tax imposed on goods by reason of the fact that they cross national boundaries as source of State
revenue and to protect local industry from its foreign competitors. 293 Domestic regulations are grounded
upon legitimate and non-protectionist purposes are applied uniformly to local and imported products
alike.294
Herein, the statute only taxed imported tapagium products once they are already introduced and sold in
the Alducran market, not at the time of entry to the Aldcuran borders. Further, the subjects of the tax
measure are unlabeled tapagium since these are products which do not comply with the bat-safe farming
practice. This follows that local products may be subject to the 20% tax if they do not comply with the
labelling requirement. Lastly, the imposition of tax on the sales of
VII.1.3 The tax on sales is an internal tax measure within the meaning of Article
VIII of ARTA.
In Argentina—Hides and Leather, a measure applied to a product at the time of importation is
nevertheless an internal measure within the meaning of Article VIII if this measure is also imposed on the
like product.295 Second, the measure includes the imposition of a pecuniary burden and a liability to pay
Alan Sykes, ‘Regulatory Protectionism and the Law of International Trade’, 66 University of Chicago Law Review
1 (1999).
293
Talia Einhorn, Customs Law, International, MPEPIL, June 2014.

294
Arthur Dunkel and Frieder Roessler, ‘The Ranking of Trade Policy Instruments under the GATT Legal System’,
World Trade Review (2005), 4: 2.
295

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money laid on a person296 to be treated as an internal tax under Article VIII. Lastly, the obligation to pay
the charge is triggered by an internal factor in the sense that it occurs after the importation of the product
of one Member into the territory of another Member. 297
The tax requirement is applied to all tapagium sold in Aldcura. The imposition of 20% tax on all
sales of tapagium imposes a pecuniary burden on the farmers. The obligation to pay the tax requirement is
due to the fact that the imported tapagium products are resold in Alducra.
III. ALDCURA DID NOT VIOLATE ARTICLE VIII WHEN
THEY ENACTED A STATUTE REGULATING TAPAGIUM
PRODUCTS.
Under ARTA, Member States are allowed to impose internal quantitative regulations and internal
taxes affecting the internal sale regulations as long as the application thereof will not favor or offer
protection to domestic production.298 Aldcura submits that the labelling requirement and tax measure are
applied in a manner consistent with their national treatment obligation under ARTA.
296
Panel Report, Argentina—Hides and Leather, paras. 11.143-11.144

297
Appellate Body Report, China—Auto Parts, para. 163.

298
Article VIII(1) of ARTA.

85
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a. ALDCURA DID NOT VIOLATE ARTICLE VIII(2) WHEN IT TAXED
NON-COMPLIANT TAPAGIUM PRODUCTS.
Under ARTA, an internal taxation or regulation is allowed if it is consistent with the general rule that
the tax measure do not afford protection to domestic production 299 and follows the specific rule that the
foreign products are not taxed in excess of the domestic products. 300 Herein, the tax differential treatment
between the unlabeled and labelled tapagium does not violate the provisions under Article VIII.
I. Runbeti’s tapagium products are not taxed in excess of the labelled domestic products.
Article VIII(2) only applies if imported products are subject to a tax discrimination. A tax
measure infringes the national treatment obligation if it imposes heavier tax burden on the imported
products than on the domestic product.301 Herein, the imposition of tax on the sales is not anchored on the
country of origin of the tapagium products but on the absence of label on the same. It cannot be said that
only Runbeti’s tapagium products will be subject to the tax measure since there can be unlabeled
tapagium products from Aldcura, even despite the fact that Aldcura has already implemented the bat-safe
labels prior to the passage of the statute in question.
299
Article VIII(1) of ARTA

300
Article VIII(2) of ARTA.

301

86
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VII.1.4 In any event, Alducra’s imposition of 20% tax on all sales on unlabeled
tapagium is still consistent with the national treatment obligation.
a. Unlabelled and labelled tapagium products are directly competitive or
substitutable.
All like products are, by definition, directly competitive or substitutable products. 302 Two
products are directly competitive or substitutable if they have common end-uses as shown by elasticity of
substitution.303 In, the likeness analysis should focus on the physical qualities and characteristics of the
final product, and not on the production method and the raw materials because the latter is only relevant if
the results in final products are not similar. 304
In this case, the unlabeled and labelled tapagium products are directly competitive or
substitutable since the only distinctive character between the two classes of products are the labels
attached to products in their respective class, arising from their difference in production method.
Nevertheless, unlabelled and labelled tapagium are like products since they are both agave spirits sold in
302
Appellate Body Report, Korea—Alcoholic Beverages, para. 118.

303
Japan—Taxes on Alcoholic Beverages, WTO Doc. WT/DS8, 10, 11/AB/R of 4 October 1996.
304
Panel Report, Philippines—Distilled Spirits, paras 7.34-7.37.

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Alducra305, both are made of similar raw materials which is agave 306, and the end-uses were virtually
identical which is to be drunk by the consumers.
c. Although they are like products, Alducra’s differential tax treatment between two
directly competitive products is justified.
Tax differentials are discriminatory if they afford protection to the domestic products. 307 The protective
application of a tax measure can be discerned from the design, the architecture and the revealing structure
of a measure.308 Herein, the design of the tax measure is patterned after Alducra’s objective to stop the use
of cloning method. The imposition of tax on unlabeled tapagium will disincentivize agave farmers for
using the cloning method. It is only appropriate that tapagium produced from bat-safe farming practice
are exempted from the tax requirement. Further, the differential tax treatment does not afford domestic
protection to local tapagium.
305
Record, para. 11
306
Record, para.11.
307

308

88
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D. ALDCURA’S LABELLING REQUIREMENT IS APPLIED IN A MANNER
CONSISTENT WITH ARTICLE VIII (3).
Technical regulations per se establishes distinctions between products according to their
characteristics or their related processes or method. 309 However, a technical regulation is deemed illegal if
the discrimination between the domestic and imported products is arbitrary and unjustifiable.
1. The labelling requirement is applied to like products.
Different groups of products should not be treated differently. 310 Under international law, the
concept of treatment no less favorable depends upon the likeness of the products. 311 In Canada—
Periodicals, the determination of likeness hinges on the product’s end-uses in a given market, consumer’s
tastes and habits, and the product’s properties, nature, and quality. 312
Herein, Alducra imposed the labelling requirement and tax measure to both imported and
domestic tapagium products.313 This is justified because Runbeti’s tapagium products and Alducra’s
tapagium products are like products with respect their nature and extent of competitive relationship. Both
309
Appellate Body Report, US – Clove Cigarettes, para. 169.

310
WTO Panel Report, US—Clove Cigarettes, above n.11, para.7.279.

311

312
Appellate Body Reports, Canada—Periodicals, pp. 21-22

313
Record, para. 28
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tapagium products come from the same plant species, Agave, and produced in the same farming method.
Regardless of the country of origin, tapagium products planted using unsafe bat practices poses the same
degree of risk to the Architerpan long-nosed bats. Lastly, the products in question are directly competitive
with each other since only Alducra and Runbeti.314
VII.1.5 The standard of a bat-safe label does not discriminate Runbeti.
Labelling schemes are discriminatory if the label is based on where-produced standard or
regulation based on country of origin because it is already tantamount to an embargo. 315 Further, where-
produced standard is discriminatory because varying product characteristics are imposed per country of
origin316, thus, resulting to the application of differing standards to both imported and local products.
Herein, Alducra categorized tapagium products based on their farming practice and not based on their
countries of origin or the identity of the producer or importer. This is an example of a how-produced
standard which has been recognized as a valid standard in labelling schemes. A how-produced standard
specified the processing method used for making the product. 317 It operates much like a product
314
Record, para. 11.

315
22 U.S.C. § 6032(h) (2001).

316

317
Steve Charnovitz, Environmental “PPMS” in the WTO: Deubnking the Myth of Illegality.
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standard.318 Alducra’s labelling requirement did not require farmers to indicate where the tapagium were
produced.319 Instead, the required labels were uniform regardless of the tapagium’s place of origin. 320
Accordingly, this kind of standard does not violate the obligation not to discriminate with respect to
imported products.321
IV. EVEN ASSUMING ALDUCRA’S LEGISLATION
VIOLATES ART. VIII, IT IS JUSTIFIED UNDER ARTICLE X
OF ARTA.
Although an internal regulation violates Article VIII of ARTA, it is nevertheless valid if it falls within
the general exceptions under Article X of ARTA, subject to the following conditions: (1) the measure
must fall under at least one of the exceptions listed in the paragraphs of ARTA; and (2) the measure
satisfies the requirements of the chapeau of that provision. 322 Alducra submits that the statute complies
with the conditions under Article X of ARTA and is, therefore, justified.
318
Joahne Scott, On Kith and Kin (and Crustaceans): Trade and Environment in the EU and WTO, in THE EU, THE
WTO, AND THE NAFTA: TOWARDS A COMMON LAW OF INTERNATIONAL TRADE? 139 (J.H.H. Weiler
ed., Ist ed. 2000)
319
Annex I, Record, p.15

320
Appendix I, Record, p.15

321
Charnovitz, p.68.
322
Appellate Body Report, Indonesia—Import Licensing Regimes, para. 5.96.

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1. ALDUCRA’S LEGISLATIONS ARE NECESSARY MEASURES IN
PROTECTING PUBLIC MORALS AND ANIMAL HEALTH AND IN
CONSERVING AN EXHAUSTIBLE NATURAL RESOURCE.
Herein, even if the legislation is considered as a trade restriction in violation of the ARTA, the
measures are justified under the ARTA exceptions. 323
A. Aldcura’s trade legislation is necessary in protecting Alducra’s public morals.
A trade measure is justified under Article X(a) of ARTA if the measure is designed to protect
public morals and there is necessity in protecting such public morals. 324
a. The objective of protecting the bats constitutes one of the most important values
pursued by Alducra.
Under ARTA, the necessity of protecting public morals is a valid justification in imposing trade
regulations.325 Under international law, the protection of animal welfare has already been considered as
objective in protecting public morals.326 In China-Publications and Audiovisual Products, the term public
323
Record, para. 28.

324
Appellate Body Reports, Colombia—Textiles, paras. 5.67-5.70

325
Article X(a) of ARTA, Record, p.9

326
Panel Reports, EC-Seal Products, para 7.632.

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morals denotes standards of rights and wrong conduct maintained by or on behalf of a community or
nation.327
i. Alducra’s concern over the welfare of
bats is a public concern in their society.
In Colombia-Textile, the Appellate Body ruled that a trade objective falls within the meaning of
public morals if it is a societal interest that could be described as vital and important in the highest
degree.328 Herein, the protection of bat welfare is part of Alducra’s public policy. Alducra has been
working to save these essential and magnificent creatures. 329 This is shown by Aldcura’s national
legislations,330 their diplomatic exchanges with Runbeti,331 participation in international agreements and
conventions concerning the bats,332 and the objective and design of the regulatory measures themselves.
327
Panel Report, China-Publications and Audiovisual Products, para. 7.759.

328
Appellate Body Report, Colombia-Textiles, para. 5.105.

329
Record, para. 28.

330
Record, paras. 14 and 15.

331
Record, paras, 22, 25.

332
Record, para. 6
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i. The danger of cloning method faced by the Architerpan long-nosed bats is a moral issue.
The adverse impacts of the cloning method to the bat welfare is an issue of ethical or moral
nature in Aldcura. As early as 2015, Alducra already responded to the growing risks of the cloning
method to the Architerpan long-nosed bats through passing a statute ordering Aldcran agave farmers to
follow the natural method of producing agave.333 Since the long-nosed bats are a shared resource between
the two countries, Aldcura requested Runbeti to pass a legislation requiring bat-safe agave farming
practices in the latter’s territory—to which Runbeti declined. 334 Left without no other recourse to address
the urgency and gravity of the risk, Alducra adopted two regulatory trade measures designed to protect
the Architerpan long-nosed bats from the risk of extinction. Ergo, the objective of conserving the
population of the Architerpan long-nosed bats is justified under the Article X(a) of ARTA.
d. The regulatory measures were designed to protect the public’s concern over the
welfare of the Architerpan long-nosed bats.
VII.1.6 Aldcura’s legislation is also necessary in protecting animal, plant and
human life.
Article X(b) justifies the imposition of trade measures if it is necessary in protecting animal life
or health.335 In EC-Asbestos, the policy is justifiable under Article XX(b) if it falls within the range of
333
Record, para. 15
334
Record, para. 25.

335
Article X(b) of ARTA, Record.

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policies designed to protect animal life or health. 336 A risk must exist before the invocation of protection
of biotic species.337 The policy of reintroducing bat-safe farming practice in agave production is a policy
that could come within Article XX(b).
A. Aldcura’s legislation is necessary in protecting the agave species.
The cloning method in agave production constitutes a serious risk to the agave species. The usual
practice of reproducing agave is through pollination, specifically by the long-nosed bats. 338 Long-nosed
bats scatter agave seeds and pollen, allowing the plant to propagate naturally. In effect, the bat’s
pollination diversifies the genetic materials of the plants. 339
However, the organic way of farming agave is not ideal for the commercial production of spirits.
Firstly, it takes several years for the agave to fully bloom. 340 Second, for producing agave spirits, the raw
material must be harvested before flowering, otherwise the sugars in the core will go to the nectar in the
336
Panel Report, EC—Asbestos, para. 8.184

337
EC – Asbestos, Appellate Body Report, para. 162.

338
https://vinepair.com/articles/tequila-sustainable-bat-friendly/
339
https://daily.jstor.org/plant-of-the-month-agave/
340
https://www.dallasnews.com/food/drinks/2019/10/21/the-future-of-tequila-how-clones-bats-and-biodiversity-will-
help-agave-survive/
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flowers, and the plant is no longer good for producing tequila nor mezcal. 341 To meet the growing
demands of tapagium, agave farmers in both countries turned to using clones from the mother plant and
cutting the stalks instead of allowing the agaves to flower. 342 The cloning method is an efficient means to
an end but at the expense of the sustainability and biodiversity. On an industrial scale, the commercial
production of agave is risky as it threatens genetic diversity and weakens the agave plant. 343 This
elimination of genetic diversity exposes agave products to disease and pests. 344 In some countries, disease
has recently killed off more than a third of the agave plants in some areas. 345
e. Alducra’s legislation is necessary in protecting the lives of the Architerpan long-
nosed bats.
As contained in several trade instruments, the protection of animal health and environment is
recognized as a legitimate policy objective with respect to trade regulations. 346 The conservation of bats is
341
https://www.batfriendly.org/agaves-eng/
342
Record, para.15
343
https://vinepair.com/articles/tequila-sustainable-bat-friendly/
344
Rodrigo Medellin,
345
346
Article 2.1 of TBT Agreement; See also Article XX of GATT.

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among the recognized obligations of a State in relation to the protection of animal health. 347 The cloning
method in agave production likewise poses grave risk to the bats.
i. The cloning method in producing tapagium products is harmful to the Architerpan long-
nosed bats
The Architerpan long-nosed bats is the primary pollinator of the agave, which is the raw material
of tapagium products.348 These bats feed on the nectar of agave flowers and hop from one flower to
another. However, the spike of demand motivated tapagium producers to use the cloning method to
hasten the production of the agave.349 This has led to the loss of an important food source for the
Architerpan long nosed bats.350 In addition, herbicides and other chemicals used on the agave harms the
long-nosed bats that feeds on them.351 The intensive monoculture in the tequila production negatively
affects the sexual reproduction of bats. 352 Ultimately, the use of cloning method causes the decline of the
347
Preamble of EUROBATS
348
IUCN, Bat-Friendly Tequila. Accessed at:

349
Record, para. 15.

350
Neda Ulaby, Bats and Tequila: A Once Boo-tiful Relationship Cursed By Growing Demands. Accessed at:
https://www.npr.org/sections/thesalt/2017/10/29/560292442/bats-and-tequila-a-once-boo-tiful-relationship-cursed-
by-growing-demands
351
Rebecca Gibian, How the Tequila Industry is Endangering Bats—and Itself, Inside Hook. Accessed at:
https://www.insidehook.com/article/science/bats-tequila-thriving-relationship-ruined-growing-demands.
352
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populations of the long-nosed bats. Some countries have enlisted long-nosed bats as endangered species
in their respective territories.353 Globally, the Architerpan long-nosed bats listed as endangered under
IUCN Red List.354
i. The cloning method affects the
migration patterns of the Architerpan-
long nosed bats.
The presence of agave blooms plays a critical role in the migration of the Architerpan long-nosed
bats.355 Long-nosed bats follow the scent of the blooming agave flowers—often called as the nectar
trail.356 In Mexico, lesser long-nosed bats migrate north from central Mexico along a nectar corridor of
Universidad Nacional Autonoma de Mexico, Tequila Interchange Project. Accessed at:

https://www.batfriendly.org/bats/
353
Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; See also Mexican Endangered Species Act
354
Record, para. 14.

355
https://www.speciesconservation.org/case-studies-projects/mexican-long-nosed-bat/3080
356
Lesser Long-Nosed Bats, National Geographic, available at:

https://www.nationalgeographic.com/animals/mammals/l/lesser-long-nosed-bat/ (last accessed at 14 October 2020).
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blooming columnar cacti in the spring and then move south following blooming paniculate agaves in the
fall.357 The shift to asexual reproduction of agave disrupts the species’ migration patterns. 358
f. Aldcura’s legislation also protects the welfare of the farmers.
Cloning is an extreme form of monoculture. Identical genotypes are growing side by side throughout the
field that one pest or disease specialized in this genotype could wipe out the whole planting. 359 To
mitigate the situation, these cloned crops are continuously treated with pesticides and fertilizers which in
turn, is a danger to the health of its farmers. 360 The effects of chronic exposure to pesticides can lead to the
development of several diseases, including different types of cancer, since the genotoxic and mutagenic
capacity of these substances are high. 361
357
G.S Wilkinson and T.H Fleming, Migration and evolution of lesser longnosed bats Leptonycteris curasoae, inferred
from mitochondrial DNA, Molecular Ecology 1996, 5, 329-339.
358

359
Loxdale, Hugh D. "What’s in a clone: the rapid evolution of aphid asexual lineages in relation to geography, host
plant adaptation and resistance to pesticides." Lost Sex. Springer, Dordrecht, 2009. 535-557.
360
Kelemu, Segenet, et al. "Harmonizing the agricultural biotechnology debate for the benefit of African farmers."
African Journal of Biotechnology 2.11 (2003): 394-416.
361
Demirhan, O., et al. "Chromosomal Aberrations in agricultural farmers exposed to pesticides." Adv Toxicol Toxic
Effects 3.1 (2019): 015-022.
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VII.1.7 Alducra’s trade regulation relates to the conservation of exhaustible natural
resources.
The ARTA preamble recognizes the need to consider environmental concerns in the trade
relations among the Contracting Parties.362 A measure must be primarily aimed at the conservation of
exhaustible natural resources in order to fall within the scope of Article XX(g). 363 Since the terms and
provision of ARTA are the same as those in the GATT, this interpretation shall also be used in
interpreting Article X(g) of ARTA.
a. The regulatory measures were primarily aimed at the conservation of the
Architerpan long-nosed bats and agave.
A measure is primarily aimed at the conservation of an exhaustible natural resource if the
measure is not disproportionately wide in its scope and reach in relation to the policy objective of
protection and conservation of sea turtle species. The means are, in principle, reasonably related to the
ends.364
362
Preambular Clause, ARTA, Record.

363
US—Gasoline, Appellate Body Report, p.18.

364
WTO, Appellate body US-Shrimp, at para. 141.

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i. Both the agave and the Architerpan
long-nosed bats are considered to be an
exhaustible natural resource in need of
conservation management.
The text of Article XX(g) was not limited to the conservation of "mineral" or "non-living" natural
resources and that living species, which are in principle "renewable", "are in certain circumstances indeed
susceptible of depletion, exhaustion and extinction, frequently because of human activities." 365
Herein, the Architerpna long-nosed bats are susceptible to depeletion due to the practice of cloning
method in agave plantations in both Alducra and Runbeti. In fact, they have become considered
vulnerable species under CMS and EUROBATS and IUCN Red List. Agave products, on the other hand,
are also vulnerable to reduction because of the harmful effects of the cloning method to the plant’s
diversity.
ii. There is a link between the regulatory measures and the policy of conserving the
Architerpan long-nosed bats and agave.
A measure is for the purpose of conservation if it limits or halts the activities creating the danger of
extinction and facilitate the replenishment of that endangered species. 366 Further, the nexus between the
measure and the policy of conservation is assessed through an examination of the design and structure of
the measure.367 Herein, the scope of the statute is only limited to tapagium products produced through the
365
9 US – Shrimp, Appellate Body Report, para. 128.

366

367
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cloning method, without no regard to the country of origin. The government of Aldcura only imposes
onerous obligations to tapagium products who do not conform to the established bat-safe farming
practice.368 This is to ensure that the farmers will be disincentivized from cloning agaves for profits.
Basing on the design of the statute in question, the means are reasonably related to the ends.
g. The bat-safe label is coupled with the tax imposition for the purpose of ensuring the
conservation of the bat population.
E. ALDUCRA’S LEGISLATION IS APPLIED IN A MANNER CONSISTENT
WITH THE CHAPEAU OF ARTICLE XX.
The chapeau prohibits an application of a measure at issue as would constitute arbitrary discrimination
between countries where the same conditions prevail, unjustifiable discrimination with the same
qualified, and it operates as a disguised restriction on international trade. 369
I. The discrimination is not arbitrary and unjustifiable as it works to further Alducra’s
obligation under EUROBATS, CBD, and CMS.

368
Record, para. 25.

369

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A. The regulatory measures are in line with Alducra’s obligations to conserve the bats
under EUROBATS, CBD, and CMS.
The imposition of unilateral trade measures for the purpose of enhancing a treaty’s effectiveness is a
usual state practice under international law. 370 Trade measures are one the State measures in complying
with their obligation under the regime of environmental law. For instance, in 1950 the United States
enacted a law prohibiting the import of whale products taken in violation of the Whaling Convention. 371
The Whaling Convention itself did not provide for the use of trade measures as a means of
enforcement.372
i. A shift to a bat-safe farming practices
helps in the conservation of the
Architerpan long-nosed bats.
Article III(2) of EUROBATS endeavors Parties to identify and protect the important feeding areas for
bats from damage and disturbance. Relevantly, as it is recognized that bats are dependent on good feeding
areas around their roosts, EUROBATS Resolution 7.8 strongly recommends to Parties to account the
needs of bats in land use in planning decisions. Herein, the Achiterpan long-nosed bats is a nectavirous
bat species that is almost identical in appearance and behavior to the long-nosed bats. 373 The recent
370
Charnovitz, p.71
371
16 U.S.C. § 916c(a) (1994).

372
International Convention for the Regulation of Whaling with Schedule of Whaling Regulations, Dec. 2, 1946, 161
U.N.T.S. 72.
373
Record, para. 14.

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expansion and intensification of agricultural products increasingly exposes bats to risk and even deprives
the bats of their food source.374 In effect, Alducra should take measures to conserve the agave plantation.
Knowing that the Architerpan long-nosed bats mainly feed on agave, Aldcura encourags agave farmers
from Runbeti and Alducra to implement bat-safe farming through the adoption of the labelling
requirement. PPMs have always been a feature in the enforcement of feature of environmental law. In
fact, bat safe labels are already introduced in Mexico and the adoption thereof has yielded positive results
with respect to the replenishment of the population of the Architerpan long-nosed bats.
iii. The return to the natural method of bat-safe farming practice preserves the genetic
diversity of agaves.
The reintroduction of the organic method of agave farming is in line with Alducra’s obligation with
respect to in-situ conservation. Under CBD, State Parties shall preserve and maintain knowledge and
practices of indigenous and local communities embodying traditional lifestyles relevant for the
conservation and sustainable use of biological diversity. 375 CBD also obligates States to promote the wide
application of traditional yet sustainable practices. 376 Traditional farming communities frequently
maintain high levels of agrobiodiversity, so understanding their agricultural practices is a priority for
374
375
Article 8(j) of the CBD.

376
Article 10(c) of the CBD

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biodiversity conservation.377 Herein, organic method were initially followed by the local communities of
Alducra and Runbeti. It was only during the rise of the demand that the agave producers resorted to the
use of cloning method—which is not a sustainable way of utilizing the benefits of agave.
iv. The imposition of trade regulation is a measure contemplated in Article IV of CMS.
Article IV of CMS mandates States to conclude agreements for the benefit of the endangered migratory
species.378 The primary object of these agreements is the ultimate restoration of these migratory species to
a favorable conservation status.379 Pursuant to these provisions, Aldcura became a signatory to the
EUROBATS agreement—which aims to conserve and protect the population of bat species and their
habitats. Alducra’s subsequent adoption of different measures in conserving the bats is a form of
compliance of its obligations under CITES as well.
h. The measures are evenly applied between two countries wherein similar conditions
prevail.
The similarity of the conditions should only consider the factors that are relevant for the purpose of
establishing arbitrary or unjustifiable discrimination in the light of the specific character of the measure at
issue and the particular policy objective that are provisionally justified. 380 Herein, Aldcura and Runbeti
both grows agave and produces tapagium; in fact, only Alducra and Runbeti are engaged in agave
377
Ofelia Vargas-Ponce et. al., Diversity and structure of landraces of Agave grown for spirits under traditional
agriculture: A comparison with wild populations of A. angustifolia (Agavaceae) and commercial plantations of A.
tequilana, American Journal of Botany, Vol. 96, No. 2 (February 2009)
378
Article IV of CMS.
379
Article V of CMS.
380
Appellate Body Reports, Ec—Seal Products, paras. 5.299-5.309.

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farming and tapagium production in Architerpo.381 Both are also range states where the Architerpan long-
nosed bats are found.382 It is therefore appropriate that both of them shall be subject to a labelling
requirement and internal tax regulation to ensure compliance to the bat-safe farming practice. If farmers
and producers from both countries shall comply with the organic method of farming, this will yield to a
positive result to the bats, agaves, farmers, and the whole biodiversity.
II. There is sufficient nexus between ARTA’s trade measures and the objective of changing the
farming practice of Agave farmers.
In EC-Seals, the Appellate Body ruled that necessity of the trade measures should be viewed according to
the importance of the objective, contribution of the measure to that objective, and the trade restrictiveness
of a measure.383 The principal element of the objective of Alducra’s trade measure consisted of addressing
Alducra’s public concerns regarding bat welfare.
A. Alducra’s labelling requirement is a technical regulation applicable to the process
and production method of producing tapagium.
Eco-labels are designed to promote sustainable use of natural resources through raising environmental
standards in the production of the commodity.384 The imposition of eco-labels will compel producers to
381
Record, para. 11
382
Record, para. 14.

383
Appellate Body Reports, EC-Seal Products, para. 5.213-5.214.

384

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change their production or process in a manner consistent with environmental friendly standards,
consequently giving rise to environmental friendliness of all products of the product group. 385
i. The design of the labelling requirement contributes to the achievement of the
measure’s objectives.
In Brazil-Retreated Tyres, a measure is necessary on the basis of a demonstration that the measure is apt
to produce a material contribution to the achievement of the objective. 386 Bat-safe labels contributes to the
protection of the Architerpan long-nosed bats by ensuring that the Alducran market is not used to
encourage Agave farmers to produce tapagium products that adversely affects the bats.
j. There are no other reasonable alternative measures that Alducra could have pursued
in their objective to conserve and protect the Architerpan long-nosed bats.
In US-Gambling, an alternative measure is not reasonably available if it is merely theoretical in
nature in the sense that the responding Member is not capable of making it, or where the measure imposes
an undue burden on that Member, such as prohibitive costs or substantial technical difficulties. 387
385
Jasper Stein, The Legal Status of Eco-Labels and Product and Process Methods in the World Trade Organization,
American Journal of Economics and Business Administration 1 (4): 285-295, 2009
386
Appellate Body report, China-Publications and Audiovisual Products, paras. 251-254.

387
Appellate Body Reports, US—Gambling, para. 308.

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i. Bilateral co-operation in the
conservation of bats is no longer
feasible because of Run beti’s refusal to
co-operate.
When the first-best option of multilateral cooperation is unavailable, an affected government may
consider using a trade PPM to address transborder problems indirectly. 388 Herein, Aldcura initiated a
negotiation with Runbeti with regard to the enactment of a statute adopting the same bat-safe farming
practice in the territory of Runbeti.389 However, this was not heeded by Runbeti as the welfare of the
Architerpan long-nosed bats and the agave are not the issues of high importance. 390 Without the political
will of the Runbeti to conserve biodiversity, bilateral cooperation is no longer feasible.
v. A lenient regulatory measure will only be counterproductive in the achievement of the
statute’s objective.
In EC—Seals Products, the Appellate Body ruled that making the welfare standards or the
certification and labelling requirements more lenient would make the alternative measure more
reasonably available but would not meaningfully contribute to addressing EU public moral concerns
regarding seal welfare. The same goes with the case in Alducra. A lenient labelling requirement without
388
Charnovitz, p. 73.
389
Record, para. 25.

390
Id.
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any punitive measure would not be apt in addressing the risks faced by the Architepan long-nosed bats
and agave since the compliance to bat-safe labels will not be assured. It is only when there are standards
to follow and a corresponding pecuniary penalty that farmers and tapagium producers would resort to the
use of organic farming method.
ALDUCRA DID NOT VIOLATE ARTICLE IX AND ARTICLE VII OF ARTA BY IMPOSING A
LABELLING REQUIREMENT.
ALDUCRA’S LABELLING REQUIREMENT DID NOT VIOLATE ARTILCE IX BECAUSE IT IS
NOT A QUANTITATIVE RESTRICTION.
State parties to ARTA are prohibited from imposing quantitative restrictions. 391 Herein, Aldcura’s
imposition institution of a labelling scheme does not violate the ARTA because the measure is not
covered by the treaty. Nevertheless In any event, labelling schemes such as eco-labels are valid under
international law.
391
Article IX, ARTA, Record, p.9

109
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Alducra’s labelling requirement is beyond the scope of Article IX since it is not a quantitative restriction.
Article IX of ARTA only covers quantitative restrictions. Here, the trade measure implemented by
Alducra is only technical regulation—a matter falling outside the scope of ARTA. A trade measure falls
within the meaning of Article IX of ARTA if it restricts the entry of a product from any contracting party
directly in terms of an absolute prohibition or restriction on the quantity of imports. 392 Herein, Alducra’s
requirement of adopting bat-safe labels in tapagium does not include the banning of imported tapagium
products which do not comply with the labelling requirement. Further, the labelling requirement does not
operate to restrict or regulate the number of labelled or unlabeled tapagium products from Runbeti. At
worst best, the labelling scheme is a qualitative restriction.
Alducra’s labelling requirement is a technical regulation.
In EC-Sardines, a measure is deemed as a technical regulation if: (1) the document applies to an
identifiable product or group of products; (2) the document must lay down one or more product
characteristics; and (3) compliance with these characteristics must be mandatory. 393 Here, Aldcura’s
labelling scheme satisfies the three elements. 394 Alducra’s labelling scheme regulates the characteristics of
the tapagium products in a compulsory fashion through the enforcement of the statute. It prescribes the
use of bat-safe farming practice in tapagium products and mark them through the bat-safe label.
392
India-Quantitative Restrictions, WT/DS90/R, Para. 5.128
393
394
Record, para. 26
110
_________________________________________________________________________________
ALDUCRA’S APPLICATION OF THE LABELLING REQUIREMENT ON TAPAGIUM PRODUCTS
SOLD IN ALDUCRA IS CONSISTENT WITH ARTICLE VII OF ARTA.
Article VII of ARTA prohibits any discrimination among like products originating in or destined for the
territories of all other contracting parties. 395 A technical regulation is valid if it is even-handed in its
design, operation, and application in the light of the particular circumstances of the case. 396
Alducra’s labelling requirement are applied to like products.
Different groups of products should not be treated differently. 397 Under international law, the concept of
treatment no less favorable hinges on the likeness of the products. 398 Likeness is about the “nature and
extent of a competitive relationship between and among products”. 399
Herein, Alducra imposed the labelling requirement to both imported and domestic tapagium products. 400
This is justified because Runbeti’s tapagium products and Alducra’s tapagium products are like products
395
Architerpo Regional Trade Agreement [hereinafter ARTA], Article VII, para. 1, Record, p.8.
396
Appellate Body Report, Us-Tuna II (Mexico) (Article 21.5-Mexico), para. 731 (referring to Appellate Body Report,
US-Clove Cigarettes, para. 182).
397
WTO Panel Report, US—Clove Cigarettes, above n.11, para.7.279.
398
399
400
Record, para. 28
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as to their nature and extent of competitive relationship. Both tapagium products come from the same
plant species, Agave, and are produced underin the same farming method. Regardless of the country of
origin, tapagium products planted using unsafe bat practices poses the same degree of risk to the
Architerpan long-nosed bats. Lastly, the products in question are directly competitive with each other
since only Alducra and Runbeti.401
Runbeti’s tapagium products were not less favorably treated as the same standard is applied to both
imported and locally produced tapagium products.
Technical regulations per se establishes distinctions between products according to their characteristics or
their related processes or method.402 As to labelling schemes, they are discriminatory if the label is based
on country of origin because varying product characteristics are imposed per country of origin 403, thus,
resulting to the application of differing standards to both imported and local products. Herein, Alducra
categorized tapagium products based on their farming practice and not based on their countries of origin.
Accordingly, Alducra’s labelling requirement did not require farmers to indicate where the tapagium were
produced.
ALDUCRA’S BAT SAFE LABEL REQUIREMENT IS NECESSARY IN PURSUING LEGITIMATE
POLICY OBJECTIVES.
401
Record, para. 11.
402
Appellate Body Report, US – Clove Cigarettes, para. 169.
403

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The ARTA preamble recognizes the need to consider environmental concerns in the trade relations
among the Contracting Parties.404 Alducra submits that the labelling requirement is a valid trade
regulation because the bat-safe labels protects the Architerpan long-nosed bats from unsafe Agave
farming practice.405
Encouraging the use of bat-safe farming practice minimizes the risks of bats, hence, it is a legitimate
objective under ARTA.
As contained in several trade instruments, the protection of animal health and environment is recognized
as a legitimate policy objective in trade regulations. 406 The conservation of bats is among the recognized
obligations of a State in relation to the protection of animal health. 407 Accordingly, Alducra is obliged to
take appropriate measures to preserve the bat species and shall promote public awareness of the
importance of bat conservations.408
The cloning method in producing tapagium products is harmful to the Architerpan long-nosed bats.
404
Preambular Clause, ARTA, Record.
405
Record, para. 26.
406
Article 2.1 of TBT Agreeement; See also Article XX of GATT.
407
Preamble of EUROBATS
408
Article III(4), EUROBATS.

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Farming practices directly affect the population of animals. 409 The recent expansion and intensification of
agricultural products increasingly exposes wildlife species to risk. 410 Cloning method is the process of
cutting agave stalks before pollination. Agave farmers from Runbeti and Alducra used this method to
hasten the production of agave.411 However, the cloning method deprives the nectar-feeding long-nosed
bats of their primary source of food412 and even disrupts their migration patterns.413 This resulted to the
decline of the populations of the long-nosed bats, to the extent that countries have enlisted long-nosed
bats as endangered species in their respective territories. 414
A change towards a bat-safe farming practices helps in the conservation of the Architerpan long-nosed
bats.
409
CBD nga site
410
411
Record, para. 15.
412
Bat Conservation International, Volume 5 Issue 4, available at: batcon.org/article/long-nosed-bats-and-agaves-the-

tequila-connection/ (last accessed 14 October 2020).
413

414
Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq.; See also Mexican Endangered Species Act
114
_________________________________________________________________________________
To preserve the bat-plant association and the conservation of the bat species, farming practice should
follow the natural method of reproducing Agave.
There is sufficient nexus between ARTA’s labelling requirement and the objective of changing the
farming practice of Agave farmers.
Eco-labels are designed to promote sustainable use of natural resources through raising environmental
standards in the production of the commodity.415
Alducra’s labelling requirement is a technical regulation applicable to the process and production method
of producing tapagium.
Domestic PPM-related measures are aimed at preventing environmental degradation caused by
production processes, and as noted in a 1997 OECD Report, Domestic PPM-related requirements are
important policy tools for promoting sustainable development.
The design of the labelling requirement contributes to the achievement of the measure’s objectives.
Bat-safe labels contributes to the protection of the Architerpan long-nosed bats by ensuring that the
Alducran market is not used to encourage Agave farmers to produce tapagium products that adversely
affects the bats.
The conservation of bats cannot be met with other alternative measures.
ALDUCRA DID NOT VIOLATE ARTICLE VIII OF ARTA WHEN IT IMPOSED TAX ON ALL
SALES OF TAPAGIUM PRODUCTS.
THE APPLICATION OF THE 20% TAX ON ALL SALES IS CONSISTENT WITH THEIR
NATIONAL TREATMENT OBLIGATION.
415

115
_________________________________________________________________________________
The tax requirement applied to all tapagium sold in Alducra.
The 20% tax on the sales of tapagium produced in Runbetti is not in excess of those applied to Alducra’s
products.
ALDCURA’S TRADE MEASURES ARE JUSTIFIED UNDER ARTICLE X OF ARTA.
Alducra’s labelling requirement and tax measure are necessary a measure in protecting public morals and
animal health and in conserving an exhaustible natural resource.
The labelling requirement
Although quantitative restrictions are prohibited under Article VII of ARTA, a trade regulation is
nevertheless valid if it can be justified under the grounds provided for under Article X of ARTA.
Both the labelling requirement and the tax measure were necessary in protecting Alducra’s public morals
and the health of the long-nosed bats.
Alducra’s concern over the welfare of bats is an issue of public morals.
The regulatory measures were necessary to protect the health of the Architerpan long-nosed bats.
No other trade measure can achieve this purpose.
Alducra’s trade regulation relates to the conservation of exhaustible natural resources.
The bat-safe label is coupled with the tax imposition for the purpose of ensuring the conservation of the
bat population.
These twin measures were primarily aimed at the conservation of the Architerpan long-nosed bats.
Regulating tapagium products through tax measures and bat-safe labels is reasonably related to the policy
objectives.
116
_________________________________________________________________________________
Alducra uniformly applied the labelling requirement and tax measure to domestic and imported tapagium
products.
Alducra observed due process in requiring bat-safe labels and imposing the tax measure to imported
tapagium products.
117

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Team ____

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE

THE HAGUE, THE NETHERLANDS

THE CASE CONCERNING THE PROTECTION OF BATS AND INTERNATIONAL

THE FEDERAL STATES OF ALDUCRA

THE REPUBLIC OF RUNBETI

MEMORIAL FOR THE APPLICANT

THE 2020 STETSON MOOT COURT COMPETITION

them and shall execute it in its entirety and in good faith.

The Economy of Alducra and Runbeti

(WTO) since Alducra withdrew from the organization in 2004.

Bats and Its Significance in the Architerpo Biodiversity

architerpae and Nyctalus royalis.

Wind Farms and Bat Harm

suspension of the construction of the succeeding phases.

I. THE REPUBLIC OF RUNBETI VIOLATED INTERNATIONAL LAW WITH

RESPECT TO ITS WIND FARM PROJECT.

I.1Runbeti is responsible for the internationally wrongful acts of PECO vecause

PECO’s acts are attributable to RunbetiTO RUNBETI

are present in this case.3

ARSIWA, art. 4, art. 5, art.8, art.11.

I.3.1 PECO is empowered by Runbeti to exercise elements of governmental authority.

Record, para. 16.

form of governmental act for the interest of the State.

I.3.2 PECO is under effective control of Runbeti.

Record, para. 16.

Record, para. 19.

Runbeti controls PECO’s operations.

the wind farm.

Record, para. 19.

Record, para. 20.

ARSIWA, art. 11.

a. a. Runbeti acknowledge the legitimacy of the conducts of PECO

a. b. Runbeti adopted the conducts of PECO.

obligations,26 and that said obligations be respected in good faith. 27

Record, para. 23.

Record, para. 24.

PECO as its own.

II. THE DEATH OF THE ROYAL NOCTULE CAUSED BY RUNBETI IS A

VIOLATION OFTO INTERNATIONAL TREATY OBLIGATIONS

RELATING TO THE PROTECTION OF THE ENVIRONMENT AND

MIGRATORY SPECIES AND THE ENVIRONMENT.

Alducra through their wind farm project. ARCTOS

under Article 7 of CBD, in relation to Article 8L.

components, with emphasis on in-situ conservation, or the conservation of

damage to the environment of other States or areas beyond national jurisdiction. In

conservation and sustainable use of biodiversity.

Vienna Convention, Art. 31, para. 1.

conserve biological diversity.

a. The wind farm project of Runbeti is a damaging activity to biological diversity.

Convention on Biological Diversity, Article 1.

Vienna Convention, Art. 31, para. 1.

Convention on Biological Diversity, Article 1.

UNEP/CBD/SBSTTA/2/3 (9 August 1996)

Convention of Biological Diversity (CBD). Article 7, Section C.

the species Nyctalus, Pipistrellus, Vespertilio and Eptesicus spp.50

Record, para. 21.

Record, para, 14.

b. Runbeti failed to classify it as a damaging activity. [___] subject to various studies

conducted by both public and private sectors.

Record, para. 23.