The Philip C.

Jessup International Law

1990 PART I

Leonia

v.

Vulpinia

Case concerning
International Environmental Law and
Antartica

PROBLEM
 The Governments of Leonia and Vulpinia while the Treaty is in force. Although the treaty does
have submitted the following matter by special prohibit military activities and the disposal of
agreement to the International Court of Justice radioactive waste, in Antarctica no mention is made
pursuant to Article 36, paragraph 1, of the Statute of of the disposal of other wastes. Finally, she pointed
the Court. No question of the jurisdiction of the court out that Vulpinia is not a party to the Antarctic Treaty
is at issue. The appendix contains a list of relevant
treaties to which both states are Parties. The applicant Armed with this information, Dr. Detritus
is the Government of Leonia. The Respondent is the decided to explore the safety of disposing of
Government of Vulpinia. hazardous waste in Antarctica. After obtaining the
opinions of other experts familiar with Antarctica
_____________ who expressed the view that certain places in
Antarctica may, indeed, be suitable for long-term
THE PROBLEM hazardous waste disposal, Dr. Detritus identified a
potential site, conducted a short investigation of the
Dr. Detritus is a citizen of the State of area, and decided to experiment by placing 100
Vulpinia. He is that state’s leading expert in drums of his typical hazardous waste on an
hazardous waste disposal and has an international unclaimed isolated tongue of the ice shield named
reputation as one of the best in his field. As the owner Stella Maris. His intention was to leave the drums in
of his own business, he has solved many extremely place and to return to examine their condition a year
difficult hazardous waste disposal problems posed by later. He proceeded to assemble waste from private
Vulpinia’s thriving industries. If appropriate sites for Vulpinian industries and shipped it to Antarctica on
disposal were not available in Vulpinia, he would a Vulpinian flag vessel owned by his company. The
negotiate with foreign governments for the disposal placement of the drums in Antarctica proceeded
of waste on territories, in accordance with without incident and without publicity.
environmental policies established by those
countries and applicable international agreements. Dr. Detritus’ ship’s movements in Antarctica
were, however, observed by an artificial satellite
As waste disposal sites have filled up and belonging to the State of Leonia, a Consultative Party
states have become wary of providing sites for this to the 1959 Antarctic Treaty. The Leonian
disposal of foreign hazardous waste, Dr. Detritus has intelligence agency observed the activities and
found it increasingly difficult to service his clients. determined that they did not involve military
On April 3, 1987, while waiting for the state of a activities. The Foreign office decided not to interfere
match of his favorite sport (soccer), he became with the activities but to send the Navy in after they
attracted to the headlines of a local newspaper, were completed, in order to ascertain exactly what
reporting on a recently completed expedition by had transpired. When the Leonian Navy arrived at the
Professor Handlin, a leading biologist from the State Stella Maris, It was immediately determined that the
of Leonia. The newspaper headline read: “THE drums did not contain radioactive materials. The
LEONIA BIOLOGIST PROF. HANDLIN BACK navy officials identified the contents of the drums
FROM EXPEDITION IN ANTARCTIC TERRA from the labels which Dr. Detritus’ company had
NULLIUS.”. attached.

This headline suggested to Dr. Detritus that The Leonian government was most distressed
there may exist an area of land not claimed by any with the discovery. Once all the facts were in, the
state that he might freely use for his hazardous waste Leonian Minister of Foreign Affairs, Mr. Darkeye,
disposal operations. After the end of the soccer telephoned his counterpart in Vulpinia, Minister Fox.
match, he immediately called up his attorney to Darkeye explained the facts as he understood them to
inquire about it. His attorney reported back that be. Fox stated that the Government of Vulpinia was
indeed 15% of the Antarctic continent had not been not aware of this disposal effort and that it had not
the subject of an active claim by any state. She also sponsored nor authorized the action. But no law of
reported that, in accordance with the Antarctic Treaty Vulpinia prohibits Dr. Detritus’ export of such waste
of 1959, all the states which might make effective or its disposal in Antarctica. Minister Darkeye took
claims to that area has agreed not to make new claims the position that his country had an obligation to
ensure that no one engaged in any activity drums without damage to the Antarctic environment.
incompatible with the text or spirit of the Antarctic After determining that the drums could be removed
Treaty, or of the recommendations adopted by the safely and reporting this to Government of Vulpinia
Consultative Parties in furtherance of the Treaty. He they were authorized by the Vulpinian Government
suggested that the disposal of hazardous waste by Dr. to proceed to Antarctica for the purpose of removing
Detritus’ Vulpinian company constitutes such a the drums.
violation. Minister Fox replied that he appreciated
Leonia’s concern and that he would look into the On January 7, 1989 Dr. Detritus’ Vulpinian ship,
matter. the “Arianna,” approached the site where the drums
were located. On board were a team of technician
Minister Fox immediately spoke to Dr. from Dr. Detritus’ company, officials of Vulpinia
Detritus who confirmed the essential facts related by under the command of Captain Capablanca, and the
Minister Darkeye. Dr. Detritus offered to remove the observers of Leonia under the command of
materials if that was what his government wished Lieutenant Rubinetti. The recovery operation went
him to do. The following day, Minister Fox called according to plan and without incident, except for a
Minister Darkeye and told him that, although his problem that arose in regard to five drums. These
government was not aware of any ruling prohibiting drums contained highly corrosive and explosive
the hazardous waste disposal conducted by Dr. substance which had seriously damaged the drums.
Detritus, nor of any rule requiring his country to Dr. Detritus’ experts explained the problem to
remove such waste, his country was ready to recover Capablanca and Rubinetti. These experts
the waste and to arrange for its proper disposal recommended that the best solution would be to
elsewhere. His country would prefer to undertake carefully open the drums, which could still explode
this action without prejudice to its legal position. and to let the contents flow into the sea. These
experts reported that experiments conducted before
The ministers agreed that the question could the voyage, established that within no more than ten
be settled discreetly by an exchange of notes, which days the sea water would dissolve the substance and
they executed on February 2, 1988. Due to its it would cause no lasting damage. The two
executive nature it was not subjected in either state government officials related this information to their
to parliamentary approval. Neither government governments by radio. The government of Vulpinia
published the agreement nor informed any other state responded that their officials should the trust the
or foreign official. The substantive portion of the text recommendations of Dr. Detritus’ experts. The
is as follows: Leonia Government’s response was that its observers
should not interfere with the activities and they
Without any prejudice to their respective legal should report on what transpired.
positions and aiming at the preservation of the unique and
delicate Antarctic environment, Leonia and Vulpinia The contents of the five the drums were
agree that: subsequently discharged into the sea. While they
waited for the chemicals to pass into the water, the
1. Vulpinia shall recover the 100 drums of waste
people on board the “Arianna” fraternized in the
and remove them from the Antarctic Treaty area
everlasting light of the Antarctic summer. They
in order to re-establish the situation that
previously existed. organized a chess tournament and Captain
2. Vulpinia shall grant Leonia the right to be Capablanca won the first place. Within ten days after
represented by observers on board the vessel the discharge, all chemical and physical analyses of
responsible for recovering the drums to monitor the waters in the area showed that there were not
the activities. traces of the chemical waste and that the waters and
recovered all of their purity and quality. The
Since it was impossible to remove the drums remaining 95 drums were transported without
during the Antarctic winter, the expedition had to incident to Vulpinia where they were transported
wait for some months before departing. During the placed in an active hazardous waste disposal site. The
interim, Dr. Detritus and his experts studied the news reached Dr. Detritus while he was watching his
situation and ran experiments to determine the safest favorite soccer team on television. Although he was
and most expeditious way for them to remove the watching his favorite soccer team on television.
Although he was delighted with the news, he Consultative Parties for the damage caused at Stella
regretted that his team scored a goal while he was on Maris, and urged those responsible to take corrective
the phone. measures. The Governments of Leonia and Vulpinia
Meanwhile, Professor Handlin was busy issued a joint communique expressing their deep
analyzing the data and life forms he collected during regret for the loss of the species, and restated their
his Antarctic expedition of 1987. As a prominent full commitment to the preservation and protection
authority in Antarctic marine biology, he had been of the unique and delicate Antarctic environment.
excited by the astonishing discovery of a populous When asked by reporters whether their governments
colony of what appeared to be a new species of would provide reparation for the damage to
asteroid echinoderm (commonly known as starfish.) Antarctica, Ministers Darkeye and Fox responded
That very small and sophisticated animal, measuring that the matter was under active consideration.
not more than five millimeters in length, was
completely different from any kind of starfish he Subsequently, ad hoc negotiations were
knew. It was extraordinarily adapted to live in the conducted between the two ministers to explore the
unique environment in which it was found, the waters question of remedies. (Rumors that they were both
in the immediate vicinity of the unclaimed isolated furious to be commonly considered as accomplices, in
tongue of the ice shelf used by Doctor Detritus for what the Press called “the irresponsible murder of a
his hazardous waste disposal experiment. starfish” are completely untrue.) Minister Darkeye
strongly insisted that Vulpinia had to pay Leonia, as
Professor Handlin decided that he needed to an Antarctic Treaty Consultative Party,
conduct further studies of the animal before publicly compensation that would provide satisfaction for the
announcing the discovery of a new species. Thus, he irreparable loss of the species. Such funds would be
did not publicize the discovery upon his return from used by Leonia for activities conducted in
Antarctica in 1987. His studies back in Leonia furtherance of the environmental protection goals of
showed that the starfish rapidly died if there were any the Antarctic Treaty. Darkeye alleged that Vulpinia
changes in the unique balance of temperature, purity, had violated international obligations found in
salinity or transparency of the water in which they customary and conventional international law
were located. including the exchange of notes of February 1988.

By the end of 1988, he had no doubt that he had Minister Fox argued that his government had
discovered a new species. Early in 1989 he returned taken the most careful steps to correct the situation.
to Antarctica to conduct further on site studies of the It was not his government’s fault that Professor
starfish before announcing his discovery. What he Handlin kept his discovery secret and thereby failed
discovered when he arrived at Stella Maris was that to alert the public to the otherwise unknown risks to
the entire species had been wiped by the hazardous the starfish. In regard to the hazardous discharge into
waste discharges from Dr. Detritus’ five drums. A the Antarctic waters, he maintained that the Leonian
saddened Professor Handlin return to Leonia to make observers were fully aware of the actions taken by
the announcement. the Dr. Detritus’ technicians and had approved of and
acquiesced in them. He concluded that the dumping
When the entire story became known, the of hazardous waste was not forbidden under
Governments of both Leonia and Vulpinia were put international law binding on Vulpinia or by
under strong pressure by the world scientific Vulpinia’s domestic law. At that point, there was a
community, environmental associations, and the break in the negotiations for an official dinner.
public at large, A number of state representatives (beginning with a quiche and ending with a mousse;
condemned the action in speeches before the United the wines served were Chateau d’Yquem 1975 and
Nations General Assembly, but no resolution was Leoville Las Cases 1978.)
presented or adopted. The matter was also discussed
at a meeting of the Consultative Parties to the After months of negotiations it became apparent
Antarctic Treaty. A communique issued by the Chair that they had reached an impasse. As a consequence,
of the meeting subsequent to the discussion called for it was decided to submit the dispute to the
increased vigilance by all states to protect the fragile International Court of Justice for resolution. Since
Antarctic environment, expressed the regret of the neither state had accepted the compulsory
jurisdiction of the Court and no treaty in force Waste — Convention on the Control of Transboundary
contained a compromissory clause applicable to the Movements of Hazardous Wastes and Their Disposal
instant dispute, it was agreed to submit the matters to 1989
the court in accordance with a special agreement. The
relevant portion of the agreement reads as follows:
VULPINIA LEONIA
The governments of Leonia and Vulpinia, restating ANT. No Action Ratification
their full commitment to the preservation of the unique CAMLR No Action Ratification
and delicate Antarctic environment, request the DUMP No Action Ratification
International Court of Justice to decide the following LOS Signature Signature
questions arising from the so-called Stella Maris ice shelf UN Ratification Ratification
incident: VIENNA Ratification Ratification
WASTE Signature Signature
1. Is the State of Vulpinia responsible for any
breach of right pertaining to Leonia by virtue of
any rule of customary or conventional
international law binding upon Vulpinia? _________________

2. In the case of an affirmative answer to question Clarifications to the 1990 Jessup Problem
number 1, is Vulpinia under any obligation to
Leonia to take remedial measures or to provide The authors, in cooperation with the Executive
reparations for the injury to the antarctic Director of ILSA (Pursuant to Official Rule X), make the
environment caused in the Stella Maris incident, following clarifications to the 1990 Jessup Problem:
and, if so, what type of remedial measures or
reparations would be appropriate under the 1. The contents of the five drums in question were
instant circumstances. discharged into the sea directly from the Stella Maris
ice shelf;
The dispute is now pending before the International
Court of Justice. In the Appendix that follows is 2. The wastes contained in the five and the one hundred
information on the status of relevant international drums are listed in Annex I to the 1972 Dumping
Convention and Annex I to the 1989 Waste
agreements to which either or both states have
Convention;
indicated a commitment.
3. None of the starfish that Dr. Handlin collected for his
experiments have survived;
___________________________
4. The exchange of notes on February 3, 1988 was
APPENDIX registered in conformity with Article 102 of the
Status of Relevant International Agreements United Nations Charter;
Ant. — Antarctic Treaty of 1959 5. Dr. Detritus placed the 100 drums of hazardous waste
onto the Stella Maris ice shelf on January 10, 1988;
CAMLR — Convention on the Conservation of Antarctic
Marine Resources of 1980 6. In December 1988, Dr. Handlin completed his
research and was convinced of the existence of the
DUMP — Convention on the Prevention of Marine new species of starfish;
Pollution by Dumping of Wastes and other Matter of 1972
7. Dr. Handlin returned to the Stella Maris on February
LOS — United Nations Convention on the Law of the Sea 10 1989 and discovered that the species was
of 1982 destroyed;
UN — United Nations Charter of 1945 8. The list of treaties in the Annex shows the various
positions of Leonia and Vulpinia with respect to the
Vienna — Vienna Convention on the Law of Treaties of relevant treaties.
1969