Case Study Exercise Essay
Exam Question
The Republics of Apple and Banana are neighbouring states in the South-East Pacific. Apple is a medium-sized, relatively well-developed state – Banana is a large, impoverished, developing state.
In the year 2010 Apple embarked upon a new drive to develop economically, promoting especially coal mining. The government of Apple has entered into a bilateral agreement with a powerful Indian mining company, Danani Co., in terms of which Danani Co. will operate the world’s largest open-cast coalmine, heavily subsidized by the government of Apple. The government of Apple maintains that this will bring at least 1,000 permanent, and 4,000 temporary, jobs to the region of the coalmine. There has been a significant amount of internal political protest within Apple, but the government of Apple maintains that before entering into the contract with Danani Co. it had commissioned a thorough environmental impact assessment, which has completed assessment of the economic and social needs of the region and of the country; the impacts on the region of the new rail networks that will be built; the potential environmental impacts of increased dust pollution on the flora and fauna of the region; and also the potential impacts on any local and regional marine pollution issues – and that the resulting environmental impact statement indicated that although there would be some negative impacts on local biodiversity, the overwhelming recommendation of the drafters of the environmental impact statement was that the mine should go ahead. Preliminary work on the coalmine has begun – the railway infrastructure began in 2014 and is now at an advanced stage; buildings have been erected on the proposed site and preliminary drilling work has commenced; and at least 500 people have already been hired in various capacities.
Banana is, however, extremely concerned about potential impacts on its environment from the proposed coalmine. In particular, Banana is concerned about releases of mercury into the atmosphere through the coalmining process; and about increased acidification of the marine environment through increased carbon dioxide emissions. Banana has raised its concerns with Apple, but Apple has dismissed these and claimed, in its response, that Banana “can only have egg on its face when it talks about mercury because Banana has done nothing to stop the use of mercury in artisanal gold-mining” within Banana. Apple contends further that Banana is overstating the potential damage that can be done by way of ocean acidification, which has not been proved to be harmful to marine environments, and that, in any case, there is no legal basis on which any one state can litigate against another in respect of climate change-related matters. Banana believes, however, that it can prove that damage is likely to result from the coalmine, should this development go ahead.
Another issue of concern for Banana is that the environmental impact statement has failed to mention the impacts of the mine on several internationally significant wetlands located in Banana which are registered under the Ramsar Convention on Wetlands of International Importance, 1971. Apple and Banana share a common watercourse – the majestic River Tiki – upon which many wetlands are dependent. Like all mining projects,
the mine will use a considerable amount of water which will reduce downstream flows to these wetlands. In addition, as recent climate science reports have shown, the climate change impacts of the burning of the coal will result in decreased precipitation also resulting in diminished watering of the wetlands. Banana considers that these impacts may breach Apple’s obligations under the Convention on Biological Diversity, 1992. Banana explains that it has also been advised that in other countries in which it operates Danani Co. has made extensive use of underground aquifers which is an activity that in Apple, unlike the case with surface waters, does not require an extraction licence. Furthermore, some officials in the Bananan Department of Health have viewed a documentary on the shocking impacts of water pollution caused by Danani Co. mines in other countries and they have pressured the government to bring proceedings to injunct any future impacts on human health in Banana. Other officials prefer a ‘wait and see’ approach, arguing that Banana can always rely, at a later stage, on the Protocol on Civil Liability and Compensation for Damage Caused by the Transboundary Effects of Industrial Accidents on Transboundary Waters, 2003, which both Apple and Banana have signed. Banana is concerned that Danani’s activities will make it difficult to meet its obligations under the Sustainable Development Goals which both states have ratified.
Banana believes that Apple may, in potentially causing damage to its territory and to areas beyond national jurisdiction, have contravened binding legal obligations to be found both in conventions to which it is a Party and in customary international law and that Banana will be entitled to compensation should the coalmine development proceed. Not only does Banana insist that it is entitled to be compensated for direct damage caused, calculated at ‘market value’; but also that it is entitled to be compensated for the full value of lost ecosystem services.
Tensions between the two states have escalated recently, and a third state (Carrot) and a fourth state (Durian) have been brought into the matter because a consignment of goods, including a significant quantity of mercury, were recently discovered on board a ship travelling from Carrot to Apple. The goods were discovered by Apple’s customs authorities when the ship (which is flagged to Carrot) docked in Apple’s harbour to offload goods before travelling on to Banana – the mercury was labelled as being consigned to an artisanal gold-mining cooperative in Banana. The authorities in Apple confiscated the crate containing the mercury.
Also found on board was a crate (which had been loaded in Durian) which was labelled as being consigned to a private address in Banana. This crate contained:
five boxes of different cnidarian species;
three binturong heads;
a shell from a hawksbill turtle;
a live sunda pangolin;
a live spotted linsang;
250 grammes of rhinoceros horn;
a live rainbow lorikeet.
The Apple authorities allow this crate to proceed to Banana, however. Apple has explained that it considered all of the contents carefully and found that, although there were no CITES certificates accompanying the crate:
the spotted linsang was listed on the IUCN Red List under the category of ‘Least Concern’;
the cnidarians were neither flora nor fauna and so no international convention relevant in these circumstances applied to them;
the binturong heads were labelled as certified hunting trophies from the Lao People’s Democratic Republic;
the pangolin had come from a country (Indonesia) which had voted against the relevant listing and which had entered a reservation to the listing;
the hawksbill turtle shell had come from an animal which had been accidentally caught in a fishing net while the ship was passing through the exclusive economic zone of Palau, and Palau has a valid reservation to the relevant listing;
the person responsible for exporting the crate had explained that the rhinoceros horn was for his personal medicinal use;
the rainbow lorikeet was from Vanuatu and was a pet belonging to the person responsible for exporting the crate.
Durian is angry that these species were allowed to leave Apple and insists that they should be returned to Durian and that both Apple and Banana should take the necessary steps to facilitate this. Both of Apple and Banana maintain that they acted legally in all respects.
Your task is to provide legal advice on the various legal aspects raised by the above facts; and on an appropriate forum, or fora, for adjudication should any of Apple, Banana, Carrot or Durian choose to litigate.
All of the states mentioned are Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora, 1973; the Convention on Migratory Species, 1973; the Noumea Convention on Protection of the Natural Resources and Environment of the South Pacific Region, 1986; the Convention on Biological Diversity, 1992; the United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 1997; and the Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, 1999. The states mentioned are Parties also to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1989; the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade, 1998; the Stockholm Convention on Persistent Organic Pollutants, 2001; and the Waigani Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to Control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region, 1995.
Banana has ratified the Minamata Convention, 2013; and Apple has signed but has not ratified; both states have ratified the UN Framework Convention on Climate Change, 1992, under which both are classed as Non-Annex I countries, and both did ratify the Kyoto Protocol, 1997, although only Apple has ratified the Doha Amendment, 2012; and both have ratified the Paris Agreement, 2015.
NOTE:
For purposes of this problem, the names of real states are those real states.