SGT INTERNATIONAL MOOT COURT COMPETITION ON ENVIRONMENT LAW

REBEL

SGT UNIVERSITY INTERNATIONAL MOOT COURT

COMPETITION ON ENVIRONMENT LAW

IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,
THE HAGUE

UNITED STATES OF SMALL ISLANDS

(INFORMANT/APPLICANT)
VERSUS
STATE OF RETHERLANDS
(RESPONDENT)

MEMORANDUM ON BEHALF OF RESPONDENT

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TABLE OF CONTENTS

[Link]: CONTENTS PAGE

NUMBER
1. LIST OF ABBREVIATIONS 3
2. INDEX OF AUTHORITIES 4
• Table of cases
• Statutes and treaties referred
• Books
• Online database
3. STATEMENT OF JURISDICTION 6
4. STATEMENT OF FACTS 7
5. ISSUES RAISED 9
6. SUMMARY OF ARGUMENTS 10
7. ARGUMENTS ADVANCED 12
ISSUE 1: WHETHER THE GHG EMISSIONS BY THE STATE 12
OF RETHERLANDS, VIOLATE ITS OBLIGATIONS UNDER
THE UNFCCC AND OTHER RELATED CUSTOMARY LAW
OBLIGATIONS?
ISSUE 2: WHETHER THE GHG EMISSIONS BY THE STATE 15
OF RETHERLANDS, VIOLATE ITS OBLIGATIONS UNDER
THE CBD AND OTHER RELATED CUSTOMARY LAW
OBLIGATIONS?
ISSUE 3: WHETHER THE STATE OF RETHERLANDS 18
SHOULD REPARATE FOR THE LOSSES CAUSED TO THE
USSI DUE TO THE GHG EMISSIONS?
8. PRAYER 23

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LIST OF ABBREVIATIONS

ABBREVIATIONS MEANING
UNFCCC United Nations Framework Convention on
Climate Change
CBD Convention on Biological Diversity
ICJ International Court of Justice
GHG Green House Gas
Art. Article
vs. Versus
EIA Environmental Impact Assessment
UN United Nations
NDC National Determined Contribution
SIDS Small Island Developing States
CO2 Carbon-di-Oxide
ILC International Law Comission
ARISWA Articles on the Responsibility of States for
Internationally Wrongful Acts
CBDR Common But Differentiated Responsibilities

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INDEX OF AUTHORITIES

A) LIST OF CASE LAWS

CASE LAW CITATION

United Kingdom of Great Britain and (1949) ICJ Rep 244, ICGJ 201 (ICJ 1949)
Northern Ireland vs Albania (Corfu
Channel Case)
Trail Smelter Arbitration (United States v. Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards
Canada) 1905 (1941)
Ambatielos case (Greece v. United ICJ Rep 10, 19 May 1953
Kingdom)
Gabčíkovo–Nagymaros Project case Gabčíkovo–Nagymaros Project
(Hungary/Slovakia), Judgment, 1997 I.C.J. 7
(Sept. 25).
Argentina v. Uruguay Pulp Mills on the River Uruguay (Argentina
v. Uruguay), Judgment, 2010 I.C.J. 14 (Apr.
20).
Australia v. France Nuclear Tests (Austl. v. Fr.), Judgment, 1974
I.C.J. 253 (Dec. 20).
Democratic Republic of Congo v. Belgium Arrest Warrant of 11 April 2000 (Dem. Rep.
Congo v. Belg.), Judgment, 2002 I.C.J. 3
(Feb. 14).
Fisheries Jurisdiction (U.K. v. Ice.) Fisheries Jurisdiction (U.K. v. Ice.), Merits,
Judgment, 1974 I.C.J. 3 (July 25).
Temple of Preah Vihear (Cambodia v. Temple of Preah Vihear (Cambodia v.
Thailand) Thailand), Merits, Judgment, 1962 I.C.J. 6
(June 15).
Factory at Chorzów (Germany v. Poland) Factory at Chorzów (Germany v. Poland),
Merits, Judgment, 1928 P.C.I.J. (ser. A) No.
17, at 47.
Costa Rica v. Nicaragua Temple of Preah Vihear (Cambodia v.
Thailand), Merits, Judgment, 1962 I.C.J.
Rep. 6 (June 15).

B) STATUTES
1. United Nations Framework Convention on Climate Change (1992)
2. Paris Agreement (2015)
3. Convention on Biological Diversity (1992)
4. United Nations Charter (1945)
5. Vienna Convention on the Law of Treaties (1969)

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6. International Law Commission, Articles on Responsibility of States for Internationally

Wrongful Acts (2001)

C) BOOKS/ COMMENTARIES/DICTIONARY
1. Malcolm, N. S. International Law. 9th ed. Cambridge: Cambridge University Press,
2012.
2. Brownlie, I. Principles of Public International Law. 7th ed. Oxford: Oxford University
Press, 2008
3. Shaw, M. N. International Law. 8th ed. Cambridge: Cambridge University Press,
2017.
4. Nico Schrijver & Vid Prislan, Gabčíkovo-Nagymaros Case (Hungary/Slovakia), in
Max Planck Encyclopedia of Public International Law (Rüdiger Wolfrum ed., Oxford
Univ. Press 2008)

D) ONLINE DATABASE

1. [Link]
2. [Link]
ation/pdf/[Link]
3. [Link]
4. [Link]
5. [Link]
6. [Link]
evolutive-nature-of-due-diligence-obligations
7. [Link]
evolutive-nature-of-due-diligence-obligations

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STATEMENT OF JURISDICTION

The State of Retherlands contends the Court lacks jurisdiction. The dispute involves a non-
justiciable political question regarding a "fair share of emissions," not a legal question of
interpretation under the UNFCCC, Paris Agreement, or CBD. Thus, the treaties provide no
basis for ICJ jurisdiction.

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STATEMENT OF FACTS

TIMELINE OF FACTS

DATE EVENT DESCRIPTION

1890 Establishment of first The 1st plant was established in 1890, and
coal-power plant in subsequently 15 coal-power plants were
State of Retherlands established.
2019 Shutting of 11 plants 11 coal-power plants were shut down and
among the 15 replaced with renewable energy generation. Also,
COVID-19 broke out, followed by war and
affected energy generation of State of
Retherlands.
January 2021 Restarted 3 coal-power 3 coal-power plants were restarted, to meet the
plant energy demands of the State of Retherlands.
February 1st Diplomatic note by USSI sent diplomatic note to State of
2021 USSI Retherlands, about the increasing GHG emission,
that it is causing climatic change, rise in sea-
levels and temperature and threats to biodiversity.
And also, re-operationalization of coal-power
plants is against UNFCCC, CBD and Paris
Agreement.
February Response to 1st the The State of Retherlands responded that state is
2021 diplomatic note by State aware of its carbon footprint. But, in order to
of Retherlands meet national energy crisis, it is necessary to re-
start the coal-power plants. However,
Retherlands promised to go into 100% renewable
energy generator, once the economy is stabilized.
December Tsunami, Reef loss and By December 2024, USSI lost approximately 0.5
2024 Population square kilometers of land to a sudden tsunami.
displacement Severe ocean acidification degraded its coral
reefs, leading to a sharp decline in Coral Trout

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populations. Continuous inundation of low-lying

areas forced residents to abandon coastal homes
and migrate inland for survival.
January 2025 2nd Diplomatic note by USSI requested State of Retherlands to shut
USSI down all of its coal-power plants, as the GHG
emission is causing existential threat to USSI.
January 2025 Response to the 2nd State of Retherlands refused to shut down the
diplomatic note by State plants due to national energy needs.
of Retherlands
March 2025 Invitation for In March 2025, USSI invited Retherlands to
negotiating the problem negotiate on coal energy use, fair GHG emission
shares, and biodiversity impacts under the CBD.
USSI also warned that failure to negotiate would
lead to ICJ proceedings for breaches of the
UNFCCC, Paris Agreement, and customary
international law, seeking reparations for
climate-induced damages.
March 2025 Diplomatic note by In March 2025, Retherlands rejected USSI’s
State of Retherlands proposal to negotiate, asserting its sovereign right
to use coal energy. It argued that no scientific
consensus defines a fair GHG emission share and
denied breaching international obligations.
Retherlands also claimed damages in USSI
cannot be solely attributed to its emissions, due
to multiple global emitters.

USSI submitted the dispute to the ICJ under Article 36 of its Statute, alleging that Retherlands’
continued GHG emissions breach obligations under the UNFCCC and CBD. Both States are
parties to the UNFCCC, Paris Agreement, and CBD, and have accepted compulsory ICJ
jurisdiction for disputes arising under these treaties.

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ISSUES RAISED

ISSUE 1: WHETHER THE GHG EMISSIONS BY THE STATE OF RETHERLANDS,

VIOLATE ITS OBLIGATIONS UNDER THE UNFCCC AND OTHER RELATED
CUSTOMARY LAW OBLIGATIONS?

ISSUE 2: WHETHER THE GHG EMISSIONS BY THE STATE OF RETHERLANDS,

VIOLATE ITS OBLIGATIONS UNDER THE CBD AND OTHER RELATED
CUSTOMARY LAW OBLIGATIONS?

ISSUE 3: WHETHER THE STATE OF RETHERLANDS SHOULD REPARATE FOR THE

LOSSES CAUSED TO THE USSI DUE TO THE GHG EMISSIONS?

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SUMMARY OF ARGUMENTS

I. THE COURT LACKS JURISDICTION OR, IN THE ALTERNATIVE, THE

CLAIM IS INADMISSIBLE.
The Court should decline jurisdiction or rule the Applicant’s claim inadmissible. Jurisdiction
is purportedly founded on reciprocal declarations under UNFCCC Article 14(2). However, this
clause is narrowly drawn to cover disputes concerning the UNFCCC only. It does not
automatically extend jurisdiction to disputes arising under the Paris Agreement (which has its
own non-punitive compliance mechanism) or the CBD. Furthermore, the central premise of the
Applicant’s argument that the Retherlands’ breach of its "fair share" is a non-justiciable
political concept. The ICJ's function is to resolve disputes based on defined legal obligations,
not to create or enforce political equity standards.

II. RETHERLANDS DID NOT VIOLATE ITS OBLIGATIONS UNDER THE

UNFCCC OR CUSTOMARY INTERNATIONAL LAW
Retherlands’ temporary re-operation of three coal plants was a permissible act of State, justified
by the doctrine of necessity under Article 25 of the Draft Articles on State Responsibility. The
regional war and COVID-19 pandemic constituted a grave and imminent peril to Retherlands’
essential interest, that is the energy security and stability of its population. This temporary,
defensive measure was the only means available at the time. Furthermore, Retherlands did not
breach the principle of non-retrogression. Retrogression applies to policy decisions taken
arbitrarily, not to temporary measures taken under duress. The State has consistently
demonstrated enhanced ambition, having already shut down 11 plants and promising a return
to 100% renewables. Finally, the No-Harm Rule is inapplicable. This rule requires a direct,
visible, and continuous link between a State's specific action and the resulting damage (Trail
Smelter). GHG emissions are diffuse, incremental, and global, rendering the required degree
of specific attribution impossible, thus preventing a finding of CIL breach.

III. RETHERLANDS DID NOT VIOLATE ITS OBLIGATIONS UNDER THE CBD
The Applicant’s claim under the CBD fails on the element of causation. First, the degradation
of USSI's coral reefs is attributable to a multitude of local and global factors (e.g., historical
global emissions, coastal development, fishing practices), not to the specific, marginal increase
in emissions from Retherlands’ three re-operationalized plants. The CBD’s transboundary harm

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clause (Article 3) requires demonstrable, significant harm directly linked to the State's conduct,
a link which is scientifically and legally absent here. Second, Retherlands fulfilled its duty of
due diligence by having robust pre-existing policies (shuttingdown 11 plants). Its temporary
action was proportional to the national peril and did not constitute a breach of its conservation
obligations, which remain in place.

IV. RETHERLANDS IS NOT LIABLE FOR REPARATION DUE TO LACK OF

ATTRIBUTION AND CAUSATION
The claim for reparation, resting on the Factory at Chorzów Case, requires proof of an
internationally wrongful act and a direct causal link between that act and the injury. Firstly, no
internationally wrongful act occurred as Retherlands acted under necessity. Secondly, and
decisively, the Applicant cannot establish a legally sufficient causal link. Climate change is a
collective problem; allowing compensation based on the material contribution standard would
render every single State liable for all climate damage globally, creating an unworkable and
disproportionate regime of State responsibility. Finally, USSI has failed to demonstrate it took
reasonable steps to mitigate its own losses, such as investing in coastal defenses or climate
resilience, which is a required element when seeking full reparation for damages. Therefore,
the claim for reparation must be rejected.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE GHG EMISSIONS BY THE STATE OF RETHERLANDS,

VIOLATE ITS OBLIGATIONS UNDER THE UNFCCC AND OTHER RELATED
CUSTOMARY LAW OBLIGATIONS?
1.1) THE COURT LACKS JURISDICTION OR, IN THE ALTERNATIVE, THE
CLAIM IS INADMISSIBLE.
➢ The Respondent, Retherlands, respectfully submits that the Court should find that it
lacks jurisdiction over the Applicant's claims or, alternatively, that the claims are
inadmissible.
➢ The dispute settlement clause in UNFCCC Article 14(2) is non-compulsory for the Paris
Agreement and CBD. The Applicant rests jurisdiction on reciprocal declarations made
under Article 14(2) of the UNFCCC. However, the scope of this provision is limited to
disputes concerning the "interpretation or application of this Convention"
➢ The Paris Agreement is a subsequent, autonomous instrument with a distinct focus on
nationally determined contributions (NDCs) and a separate, non-punitive compliance
and facilitation mechanism established under Article 15. The Paris Agreement
deliberately avoided a compulsory dispute settlement mechanism for compliance
disputes, favoring a facilitative approach.
➢ The dispute is non-justiciable due to the absence of a legal standard for "fair share."
The Applicant’s core claim hinges on Retherlands’ rejection of a negotiation on its "fair
share of emissions"1. Retherlands asserts that this concept is political, ethical, and
economic in nature, lacking any fixed or binding legal standard enforceable by the
Court.
➢ The concept of "fair share" is rooted in the political negotiations of equity under the
principle of Common but Differentiated Responsibilities (CBDR), not in a specific,
objective rule of lex lata. Determining a "fair share" requires the Court to weigh
complex factors like historical emissions, economic capacity, population size, future
energy needs, and technological potential, a task not under the jurisdiction of the
judicial body2.
➢ The ICJ is charged with deciding disputes "in accordance with international law" (ICJ
Statute art. 38(1)). Asking the Court to rule on an indeterminate political standard would

1
Proposition para 9
2
Nuclear Tests (Austl. v. Fr.), Judgment, 1974 I.C.J. 253 (Dec. 20).

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require it to engage in judicial legislation, thereby exceeding its mandate and rendering
the claim non-justiciable.
➢ Assuming, arguendo, that jurisdiction is found, Retherlands has not committed an
internationally wrongful act. Its actions are justified by the circumstances precluding
wrongfulness and are consistent with its obligations.
➢ Retherlands’ actions were protected by the doctrine of necessity and sovereign rights.
Retherlands’ temporary re-operation of three coal plants in January 2021 was an act
taken under the doctrine of necessity, which precludes the wrongfulness of an act.
ARSIWA art. 25. Further, doctrine of necessity is an exception for lex specialis
derogate legi generali, which means, special law prevails over general law.
➢ The COVID-19 pandemic and the regional war created an extreme and unpredictable
disruption to Retherlands’ energy supply3. Energy security and the continued provision
of essential power to hospitals, infrastructure, and its population of the world’s third-
largest economy constitute an essential interest facing a grave and imminent peril4.
➢ The re-opening of the coal plants was the only immediately viable, large-scale source
of power available to address the sudden and acute energy deficit5. The Applicant fails
to provide evidence of immediate, feasible alternatives that could have been
implemented by Retherlands at that time to address the crisis.
➢ Retherlands did not contribute to the regional war or the pandemic. Furthermore, its
initial, progressive act of shutting down 11 of 15 coal plants in 2019 demonstrates that
its contribution was defensive, not reckless. Thus, Retherlands' temporary action was
justified by necessity, rendering it a permissible act under international law.

1.2) PRINCIPLE OF NON-RETROGRESSION

➢ The non-retrogression principle applies to the overall level of ambition in successive

NDCs. Retherlands' decision was a temporary, operational necessity and not a
fundamental legislative or policy reversal. Retherlands explicitly stated its intention to
transition back to 100% renewable energy once stability was restored6. The State’s
underlying commitment and long-term trajectory remain progressive, evidenced by the
permanent closure of 11 coal plants. Also, to set up renewable energy plants after

3
Proposition para 2 and 4
4
Gabčíkovo-Nagymaros Project (Hung. v. Slov.), Judgment, 1997 I.C.J. 7, 40–41 (Sept. 25).
5
Proposition para 2
6
Proposition para 4

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economic downfall, the equipment in need is also to be manufactured first to which

there is need for more.
➢ Article 4(3) requires "highest possible ambition," which must be interpreted in light
of a State's "national circumstances" (Paris Agreement art. 4(1)). The national
circumstances of war and pandemic-induced energy crisis justified a temporary,
measured deviation to safeguard the population. To demand continuous, linear
progression irrespective of a genuine national security crisis would violate the State’s
sovereign right to prioritize the protection of its citizens.
➢ Trail Smelter case 7involved a single, identifiable source (a smelter) causing direct,
traceable harm across a specific border. By contrast, climate change damages and sea-
level rise, tsunamis, and inundation 8are the result of the cumulative stock of global
GHG emissions originating from every State, over centuries.
➢ The emissions from Retherlands’ three temporarily re-opened coal plants are a tiny
fraction of the global total. It is scientifically and legally impossible to isolate the
specific causal impact of these three plants on the loss of 0.5 km² of USSI’s territory
that occurred in December 2024. The No-Harm Rule requires a direct, proximate, and
specific cause-and-effect relationship that simply cannot be established here9.
➢ Retherlands already exhibited high due diligence by shutting down the majority of its
coal plants. The temporary exception, motivated by necessity, does not negate its
overall, sustained commitment to due diligence in the face of an unprecedented crisis.
➢ Also, under Article 4 para 2 sub-clause (a) of UNFCCC, each party of developed
countries should implement measures to limit the GHG emission, to remark their lead
in fulfilling the objectives of the convention. Respondent’s act of shutting down 11 coal
plants and promise to gob 100% renewable energy shows the country’s dedication to
fulfil the objectives of that convention.

1.3) REFUSAL FOR TEMPORARY NEGOTIATION

➢ The Respondent respectfully submits that its temporary refusal to engage in

negotiations does not constitute a violation of its treaty obligations. While the relevant
Convention may prescribe a duty to negotiate in good faith, such an obligation must be
interpreted in light of prevailing circumstances and fundamental principles of

7
Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1905 (Trail Smelter Arb. Trib. 1941).
8
Proposition para 3
9
See P. W. Birnie, A. E. Boyle & C. Redgwell, International Law and the Environment 164 (4th ed. 2021).

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international law, particularly state sovereignty and the protection of essential security
interests.
➢ The Respondent is presently engaged in an armed conflict, a situation that severely
constrains its ability to participate in diplomatic processes. International law, including
Article 51 of the United Nations Charter, recognises the inherent right of self-defence
and the primacy of national security considerations during wartime.
➢ Therefore, any insistence on immediate negotiations would impose an unreasonable
and impractical burden upon the Respondent, undermining its sovereign capacity to
safeguard its territorial integrity and people. The obligation to negotiate, as affirmed in
the North Sea Continental Shelf cases10, is one of conduct, not result, and must be
exercised in good faith when conditions permit.
➢ The Respondent has neither repudiated the treaty nor rejected future engagement. It
merely postponed negotiations until a more stable and secure context arises.
Accordingly, its conduct represents a lawful deferment, not a breach, consistent with
both the object and purpose of the Convention and the overarching principles of
international law.
➢ In the case of Temple of Preah Vihear11, The Court stressed that armed conflict hinders
the environment necessary for negotiations. The obligation to negotiate will not go
away if there is a war. But it can be postponed pertaining to the concept of good faith
(ubrima fide). The Respondent’s temporary refusal therefore, will not amount to breach
of the convention itself.

ISSUE 2: WHETHER THE GHG EMISSIONS BY THE STATE OF RETHERLANDS,

VIOLATE ITS OBLIGATIONS UNDER THE CBD AND OTHER RELATED
CUSTOMARY LAW OBLIGATIONS?

2.1) RETHERLANDS DID NOT VIOLATE ITS OBLIGATIONS UNDER THE CBD
➢ The Applicant’s claims regarding breaches of the Convention on Biological Diversity
(CBD) are similarly defeated by the lack of a legally relevant causal link and the
fulfillment of Retherlands’ due diligence obligations.
➢ There is no direct causal link between Retherlands' emissions and USSI's specific
biodiversity harm. The Applicant asserts a breach of CBD Article 3 due to ocean

10
North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), Judgment, 1969 I.C.J. 3 (Feb. 20).
11
Temple of Preah Vihear (Cambodia v. Thai.), Merits, Judgment, 1962 I.C.J. 6 (June 15).

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acidification damaging coral reefs and the Coral Trout population. This assertion fails
because the damage is not specifically attributable to the Respondent’s action.
➢ Even the scientific report given by Intergovernmental Panel on Climate Change (IPCC),
12
is vague in nature. It didn’t specify anything about pollution by Respondent that
caused island to suffer so. Also, it only emphasises that major polluting factor is GHG
emissions and not only GHG emissions. Several other factors too contribute for
pollution.
➢ Ocean acidification is a phenomenon caused by the global absorption of cumulative
atmospheric CO2. The incremental CO2 emitted by Retherlands' three temporary coal
plants is scientifically indistinguishable from the emissions of hundreds of thousands
of other sources globally.
➢ The ICJ requires the demonstration of "sufficient evidence" of the harm being caused
by the activities of the respondent State13. The Applicant cannot provide sufficient
evidence that Retherlands’ emissions, rather than the vast, cumulative emissions of all
States, were the specific cause of the coral reef degradation and the decline of the Coral
Trout in USSI.
➢ Coral reef health is acutely susceptible to local stressors such as sedimentation from
coastal development, nutrient runoff, and unsustainable fishing practices and also,
factors within USSI’s own jurisdiction. The Applicant has failed to exclude these local
variables as the dominant cause of the specific damages cited.

2.2) FULFILLMENT OF DUE DILIGENCE

➢ Retherlands fulfilled its due diligence obligations under the CBD. The CBD requires
Parties to "integrate...conservation...into national decision-making" and "identify
processes...which have or are likely to have significant adverse impacts", as per CBD
art. 6(b), 7(c).
➢ Retherlands demonstrated its commitment to this integration by previously phasing out
11 coal plants. Its temporary re-operation was a proportional measure to meet a crisis,
not a systemic failure to integrate conservation.
➢ Article 3 itself balances the sovereign right to exploit resources with the duty to prevent
harm. In times of national necessity, a State is entitled to temporarily prioritize its
sovereign right to energy security, especially when that temporary measure is necessary

12
Proposition para 1
13
Pulp Mills on the River Uruguay (Arg. v. Uru.), Judgment, 2010 I.C.J. 14, 102 (Apr. 20).

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to safeguard the well-being of its own population. This limited and temporary action
does not constitute a breach of the State's fundamental due diligence obligation under
the CBD.

2.3) POSITION OF RETHERLANDS

➢ The Respondent is engaged in an armed conflict, invoking its inherent right to self-
defence under Article 51 of the UN Charter.
International law recognises that essential security interests and public safety take
precedence over procedural treaty obligations during such emergencies.
➢ In Gabcíkovo–Nagymaros Project, the ICJ acknowledged that a state of necessity can
temporarily suspend treaty performance when it is the only means to safeguard an
essential interest against a grave and imminent peril. By analogy, the Respondent’s
decision to postpone negotiations due to war qualifies as a lawful suspension, not
repudiation, of its obligation.

➢ The principle of effectiveness (utile per inutile non vitiatur) dictates that
international obligations must be interpreted to achieve their purpose, not to impose
impossible or meaningless duties.
➢ In Fisheries Jurisdiction14, the Court held that while a duty to negotiate exists, it must
be carried out “in good faith and in a genuine attempt to reach agreement.”
When conflict and instability make genuine dialogue impossible, a temporary
postponement preserves the integrity and good faith of future negotiations rather than
breaching the duty itself.
➢ The UN Charter (Article 2(3)) requires States to settle disputes by peaceful means “in
such a manner that international peace and security are not endangered.” Forcing
negotiation amid war would contravene this principle, as it risks aggravating hostilities.
➢ The ultimate purpose of environmental and cooperative treaties such as the UNFCCC
and CBD is sustainable and peaceful cooperation among States.
By postponing negotiation during armed conflict, the Respondent preserves the spirit
of cooperation and ensures that future dialogue occurs in a stable and constructive
environment.

2.4) CUSTOMARY LAW POSITION

14
Fisheries Jurisdiction (U.K. v. Ice.), Merits, Judgment, 1974 I.C.J. 3 (July 25).

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➢ The Respondent recalls that Article 2(1) and (7) of the UN Charter, which embody
customary law, guarantee sovereign equality and non-interference in domestic
jurisdiction.
During wartime, a state’s priority is to protect its sovereignty and independence;
compelling it to negotiate simultaneously would violate its sovereign discretion to
manage national defence.
➢ Nations engaged in active hostilities historically defer treaty-based obligations, such as
negotiation, information exchange, or cooperation, until stability returns. Such practice
reflects opinio juris that wartime necessity temporarily suspends procedural duties,
without nullifying them.
➢ Moreover, Article 2(3) of the UN Charter, reflecting customary law, obliges States to
settle disputes peacefully “in such a manner that international peace and security are
not endangered.” Forcing negotiation during war would aggravate hostilities, defeating
the purpose of this customary principle.

ISSUE 3: WHETHER THE STATE OF RETHERLANDS SHOULD REPARATE FOR

THE LOSSES CAUSED TO THE USSI DUE TO THE GHG EMISSIONS?
[Link] DAMAGES ARE NOT DIRECTLY ATTRIBUTABLE TO RETHERLANDS’
SPECIFIC ACTS

➢ As established supra, Retherlands’ temporary action was justified by the circumstance

precluding wrongfulness (necessity) Article 25 of ARSIWA15. Therefore, the first
element of State responsibility—the existence of an internationally wrongful act—is
missing. ARSIWA Art. 116.
➢ Article 23 of ARSIWA17- The wrongfulness of an act of a State not in conformity with
an international obligation of that State is precluded if the act is due to force majeure,
that is the occurrence of an irresistible force or of an unforeseen event, beyond the
control of the State, making it materially impossible in the circumstances to perform
the obligation.

15
International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, art. 25,
in Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess.,
Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001).
16
Ibid
17
International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, art. 23,
in Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess.,
Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001).

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➢ Retherlands is the third largest economy in the world and faced "increasing energy
pressures" due to the COVID-19 pandemic and a regional war (force majeure) , which
"affected energy generation and energy supply."(PROP).This constituted an essential
interest under grave and imminent peril.
➢ The immediate, forced closure of the three remaining coal plants.
Art 25 of ARSIWA 18allows an act to be non – wrongful if it is the only way for the
state to safeguard an essential interest against a grave and imminent peril. Retherlands
was safeguarding its population and economy. The transition to renewable resources
cannot be completed instantly. A major, sudden shortfall in base-load power would lead
to rolling blackouts and a complete shutdown of industrial, commercial, and civilian
activities. And energy collapse would "completely cripple its economy. “There is also
a global systematic risk as retherlands being a major supplier elevates its stability to an
essential interest of the international community. Retherlands is a "supplier of energy"
to other countries. A national grid failure would have immediately affected "the
countries that import energy from Retherlands," exporting the energy crisis and
economic instability to its neighbours and partners. Therefore the doctrine of necessity
preclude the wrongfulness of of an act this principle was affirmed by the ICJ in the
landmark Gabcikovo Nagymaros project case (hungary/Slovakia)19 .The ICJ in pulp
mills case concluded that Uruguay had not breached substantive obligations under the
statute as there is no conclusive evidence in the record to show that Uruguay has not
acted with the requisite degree of due [Link] even if an internationally
wrongful act were found, the Applicant has failed to establish that the damages (loss of
0.5 km² of land, coral degradation) are a consequence of that specific act. Because GHG
emissions do not directly cause by tsunamis, which are primarily caused by underwater
earthquakes, volcanic eruptions or landslides21.

3.2. LACK OF DIRECT AND CERTAIN CAUSAL NEXUS

18
Ibid
19
(Nico Schrijver, Vid Prislan),Gabčíkovo-Nagymaros Case (Hungary/Slovakia),in Max Planck Encyclopedia of
Public International Law (Rüdiger Wolfrum ed., Oxford University Press, April 2008), available at
[Link]
20
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 2010 I.C.J. 14, ¶ 197 (Apr. 20).
21
Cunneen, J., 5 Ways Climate Change Increases the Threat of Tsunamis, from Collapsing Ice Shelves to Sea-
Level Rise, THE CONVERSATION (Jan. 24, 2022), [Link]
increases-the-threat-of-tsunamis-from-collapsing-ice-shelves-to-sea-level-rise-175247

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➢ The law of state responsibility requires the damage to be direct and necessary
consequence of the international wrongful act-ARTICLE 3122
➢ The principle that reparation for an internationally wrongful act must flow directly from the
injury it caused was definitively established by the Permanent Court of International Justice
(PCIJ) in the 1928 Factory at Chorzów case23. This landmark ruling set the foundation for
assessing reparations in international law based on the standard of "full reparation". The
alleged harm to USSI is the result of the cumulative emissions of all industrial States
over the last century. In the ICJ military and paramilitary activities and against
Nicaragua (1986) case, the court required a clear causal link for damages. In this
diffuse context the causal link is too remote, indirect and indeterminate to justify
reparation against one single state. Holding Retherlands solely, or even primarily,
responsible for a fraction of the global harm based on the temporary re-operation of
three plants would be grossly disproportionate and legally unsound. The concept of
individualized attribution of global climate damages is not yet recognized in
international law. See J. C. K. G. Bunk, Climate Change and the Limits of State
Responsibility (2019). The factual chain of causation is broken by the cumulative and
global nature of climate change.
➢ The Applicant argues for a "material contribution" standard of causation. Retherlands
submits that this standard, while applicable in limited pollution contexts, is too
expansive for global climate change, where virtually every State materially contributes
to the cumulative stock of GHGs. Accepting the "material contribution" test in this
context would mean:
o Any State that emits GHGs is liable to any State that suffers climate harm.
o The system of State responsibility would collapse under the weight of universal,
simultaneous liability.
o This would negate the principle of locus standi , as every State would have a
claim against every other State. The legal standard for causation must remain
stringent enough to ensure fairness and prevent liability from attaching to

22
international Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, art. 31,
in Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess.,
Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001)
23
Factory at Chorzów (Germany v. Poland), Merits, Judgment, 1928 P.C.I.J. (ser. A) No. 17, at 47; see also
International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, art. 31, in
Report of the ILC on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess., Supp. No. 10, at 43, U.N. Doc.
A/56/10 (2001).

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remote or negligible acts. Retherlands’ temporary emissions are too remote in

the causal chain to satisfy the requirement for full reparation.
➢ The facts demonstrate an absence of identifiable causation between the specific act
complained of (re-opening three plants) and the specific injuries suffered.,

3.3. DEFENCE AGAINST DUE DILIGENCE

➢ The content of an obligation of due diligence should be determined objectively under

the circumstances, taking into account relevant factors.’ (Request for Advisory Opinion
submitted by the Commission of Small Island States on Climate Change and
International Law, Advisory Opinion24.
➢ The decision to restart 3 plants was not a careless act but a duly considered, temporary
emergency measure of last resort, demonstrating that the State diligently searched for
and executed the "only way" to avert an economic catastrophe caused by exogenous
shocks (war and pandemic). truly undiligent State would have simply allowed its grid
to fail or made no plans at all. In 2021, the diligent choice was to prioritize the essential
interest of national survival (energy security) over the continuation of the ambitious
climate schedule. This prioritization was itself a diligent act to prevent a grave and
25
imminent peril (ARSIWA Art. 25) .Also earlier Retherlands proved diligence by
shutting down 11 of 15 coal plants in 2019, a massive and costly good-faith investment
that established its long-term policy of prevention.

3.4. USSI FAILED TO MITIGATE ITS LOSSES, WEAKENING ITS CLAIM FOR
FULL REPARATION

➢ The obligation to make full reparation is subject to the injured State's duty to take
reasonable steps to mitigate its damages. See Certain Activities Carried Out by
Nicaragua in the Border Area (Costa Rica v. Nicar) 26. USSI, facing a scientifically
confirmed existential threat, had a strong, independent duty to invest in coastal
defenses, early warning systems, and climate adaptation measures. The Applicant has
provided no evidence that it has taken such reasonable steps. The failure to mitigate

24
Joshua Paine, ICJ Advisory Opinion on Climate Change: The Variable and Evolutive Nature of Due Diligence
Obligations, EJIL: Talk! (Aug. 21, 2025), [Link]
variable-and-evolutive-nature-of-due-diligence-obligations
25
International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, art. 25,
in Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess.,
Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001).
26
Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Judgment, 2015
I.C.J. Rep. 665, 719 (Dec. 16).

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foreseeable damages weakens USSI’s claim for full compensation, particularly for the
loss of territory and the displacement of populations, which could have potentially been
prevented or minimized through proactive national policy.

3.5. LIMITATION ON REPARATION

➢ Restitution (restitutio in integrum) is legally impossible. Retherlands cannot "un-emit"

the GHGs, nor can it physically restore the 0.5 km² of territory lost to the sea. The ICJ
must therefore dismiss any claim for Restitution (ARSIWA Article 35) 27.
➢ Compensation (Art 35) Must Not Be Punitive. The claim for reparation, especially
given the difficulty in proving causation, risks becoming punitive. International law is
clear that compensation must only cover the quantifiable financial loss, not punish the
State. The ICJ's Certain Activities Carried Out by Nicaragua in the Border Area (2018)
emphasized that compensation must be quantified and strictly linked to the proved
damage. The cost of environmental restoration must be reasonable and not speculative.
Retherlands would argue that USSI's claim for non-material damage (loss of
livelihood/culture) is too speculative and exaggerated to meet the legal standard of
certainty.

27
International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, art. 35,
in Report of the International Law Commission on the Work of Its Fifty-Third Session, U.N. GAOR, 56th Sess.,
Supp. No. 10, at 43, U.N. Doc. A/56/10 (2001).

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PRAYER

The Respondent, the State of Retherlands, respectfully requests this Honorable Court to
adjudge and declare that:
1. THE COURT LACKS JURISDICTION over the dispute, or, in the alternative, the
Applicant’s claims are INADMISSIBLE on grounds of non-justiciability.
2. The State of Retherlands is NOT in breach of its obligations under the United Nations
Framework Convention on Climate Change, the Paris Agreement, or related Customary
International Law, as its actions were justified by the doctrine of necessity.
3. The State of Retherlands is NOT in breach of its obligations under the Convention on
Biological Diversity, due to the failure of the Applicant to establish the necessary causal link.
4. The State of Retherlands is NOT liable to make reparation to the United States of Small
Islands, as the damages are not legally attributable to Retherlands' specific acts, and the claim
is defeated by the absence of a direct causal link.
ALL OF WHICH IS RESPECTFULLY SUBMITTED,

AGENTS FOR THE RESPONDENT

STATE OF RETHERLANDS

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