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THE 2014-2015 STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT
COMPETITION
___________________________________________________________________________
___________________________________________________________________________
IN THE
INTERNATIONAL COURT OF JUSTICE
AT THE
PEACE PALACE, THE HAGUE
___________________________________________________________________________
CASE CONCERNING THE PROTECTION OF MAKO SHARKS AND TRADE
RESTRICTIONS
THE FEDERAL STATES OF ALOPIAS
v.
THE REPUBLIC OF RHINCODON
Case No. XXX/2014
MEMORIAL ON BEHALF OF THE RESPONDENT
THE REPUBLIC OF RHINCODON
~Memorial on Behalf of Respondent~
II | P a g e
TABLE OF CONTENTS
I. Index of Authorities.........................................................................................................III
II. Statement of Jurisdiction.................................................................................................IX
III. Statement of Facts.............................................................................................................X
IV. Issues Raised.....................................................................................................................XI
V. Summary of Arguments.................................................................................................XII
VI. Arguments Advanced........................................................................................................1
1. Alopias violated its customary obligations by not preventing the finning and spining of
Mako Sharks........................................................................................................................1
2. Alopias violated its treaty obligations by not preventing the finning and spining of Mako
Sharks..................................................................................................................................5
3. Alopias cannot permit finning and spining of Mako Sharks by claiming Permanent
Sovereignty over Natural Resources.................................................................................12
4. Rhincodon has not violated International Law by banning the importation of fish and fish
products from Alopias.......................................................................................................14
VII. Conclusion and Prayer..............................................................................................22
~Memorial on Behalf of Respondent~
III | P a g e
INDEX OF AUTHORITIES
BOOKS
1. DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT AND THE FUTURE 267
(Peterson Institute, 1994) [Greening the GATT].
2. DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA (2009).
3. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 380 (6th ed. 2003).
4. MALCOLM SHAW, PRINCIPLES OF INTERNATIONAL LAW 83 (6th ed. 2008).
5. P. BIRNIE, A. BOYLE & C. REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT
(3rd ed. 2009).
6. PATRICIA W. BIRNIE ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT, (3rd ed.
1999).
7. PHILIPPE SANDS, ADRIANA FABRA, JACQUELINE PEEL, PHILIPPE SANDS & RUTH
MACKENZIE, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 139 (3rd ed., 2012).
ESSAYS, ARTICLES AND JOURNALS
1. Bing Bing Jia, The Relation between Treaties and Customs, Chinese J.I.L(February 4,
2010).
2. European Communities- Measures Affecting Asbestos and Asbestos Containing
Products (2000) WTO Doc. WT/DS135/AB/R (Appellate Body Report).
3. ILA, Final Report of the Committee on the Formation of Customary (General)
International Law, Statement of Principles Applicable to the Formation of General
Customary International Law, Report of the Sixty-Ninth Conference, London, 2000,
Principles 20–21, 24, 26 and 27.
4. International Law Association, Formation of Customary (General) International Law,
1984.
~Memorial on Behalf of Respondent~
IV | P a g e
5. IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity
Conservation and Natural Resource Management, May 16, 2007.
6. Jacob Werksman, James Cameron & Peter Roderick, Improving Compliance With
International Environmental Law 53 (2014).
7. Judge N. Singh, Foreword, in ENVIRONMENTAL PROTECTION AND SUSTAINABLE
DEVELOPMENT: LEGAL PRINCIPLES AND RECOMMENDATIONS, xi–xii (R. D. Munro and J.
G. Lammers ed., 1986).
8. Pieter Pauw et al., Different Perspectives on Differentiated Responsibilities: A State-of-
the-Art Review of the Notion of Common but Differentiated Responsibilities in
International Negotiations, 2014.
9. Pitschas and Schloemann, WTO Compatibility of the EU Seal Regime: Why Public
Morality is Enough, Institute of Economic Law, Transnational Economic Law Research
Centre (TELC), School of Law, Martin Luther Univeristy Halle-Wittenburg.
10. Steve Charnovitz, The Moral Exception in Trade Policy, Virginia Journal of
International Law, 38 (1998), 689.
11. Ted Stein, The Approach of the Different Drummer: The Principle of the Persistent
Objector in International Law, 26 Harv. I. L. J., 457 ( 1985).
12. Tuula Honkonen, The Common But Differentiated Responsibility Principle In
Multilateral Environmental Agreements: Regulatory And Policy Aspects 112 (2009).
GATT & WTO PANEL REPORTS, AGREEMENTS AND CASES
1. Appellate Body Report, European Communities – Measures Prohibiting the Importation
and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R (May 22,
2014).
~Memorial on Behalf of Respondent~
V | P a g e
2. GATT Panel Report- United States – Restrictions on Imports of Tuna, GATT Doc
DS29/R (1994) 33 ILM 839.
3. GATT Panel Report, Canada — Measures Affecting Exports of Unprocessed Herring
and Salmon, L/6268, adopted 22 March 1988, BISD 35S/98 [GATT Panel Report -
Exports of Unprocessed Herring and Salmon].
4. GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages,
DS23/R, adopted 19 June 1992, BISD 39S, p. 206 [ GATT Panel Report – Alcoholic
and Malt Beverages].
5. Panel Report, European Communities – Measures Prohibiting the Importation and
Marketing of Seal Products, WT/DS400/R (Nov. 25, 2013) [hereinafter EC – Seal
Products].
6. Panel Report, United States – Measure Affecting Cross Border Supply of Gambling and
Betting Services, WT/DS285/R (adopted 20 April 2005).
7. United States - Import Prohibition Of Certain Shrimp And Shrimp Products,
WT/DS58/AD/R, 12 October, 1998 [Shrimp Case].
8. WTO, Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of
the Appellate Body of 11 December 2000, WT/DS169/AB/R.
9. WTO, United States- Measures Affecting the Cross-Border Supply of Gambling and
Betting Services, Report of the Appellate Body of 7 April 2005.
JUDICIAL AND ARBITRAL DECISIONS
1. Case Concerning Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. U.S) [1986] I.C.J Rep 14. [Nicaragua].
2. Continental Shelf (Libyan Arab Jarnahiriya/Malta) [1985] I. C.J. Rep. 13.
3. Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3 (July 25).
~Memorial on Behalf of Respondent~
VI | P a g e
4. Gabc�íkovo-Nagymaros Project (Hung. v. Slov.),1997 I.C.J. 7(Sept.7). [Gabc�íkovo-
Nagymaros Project].
5. Pulp Mills Case on the River Uruguay (Argentina v. Uruguay) I.C.J. Rep. 2010, [Pulp
Mills].
6. Trail Smelter Arbitration (United States v Canada) Arbitral Trib., 3 U.N. Rep. Int’l Arb.
Awards 1905 (1941) [Trail Smelter].
7. United States - Import Prohibition Of Certain Shrimp And Shrimp Products,
WT/DS58/AD/R, 12 October, 1998 [Shrimp Case].
TREATIES AND CONVENTIONS
1. 1989 Basel Convention on the Control of Transboundary Movements of Hazardous
Wastes and their Disposal, 28 ILM 657 (1989), art. [Basel Convention].
2. 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26
(vol. I), Principle 4 [Rio Declaration].
3. Charter of the United Nations and Statute of the International Court of Justice, June
26,1945, San Francisco, art.38.[UN Charter].
4. Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish
Stocks, 34 ILM 1542 (1995), art. 6(1) [UN Fish Stocks Agreement].
5. Convention on Biodiversity, 1760 UNTS 79; 31 ILM 818 (1992).
6. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993
UNTS 243 [CITES].
7. Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS
333; 19 ILM 15 (1980), art. 2 [CMS].
8. International Convention for the Conservation of Atlantic Tunas, 20 UST 2887
[ICCAT].
~Memorial on Behalf of Respondent~
VII | P a g e
9. International Plant Protection Convention (with annex). Rome, 6 Dec 1951, Entered into
force 3 April 1952.
10. Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3 (1987),
art. IV [Montreal Protocol].
11. United Nations Convention on the Law of the Sea, 10th December, 1982, 1833 UNTS 3,
art. 193.
12. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 27.
UN DOCUMENTS
1. 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26
(vol. I), Principle 4 [Rio Declaration].
2. Declaration of the United Nations Conference on the Human Environment, U.N. Doc.
A/Conf.48/14/Rev. 1(1973), Principle 1 [Stockholm Declaration].
3. G.A.Res. 68/71, ¶15, U.N. Doc. A/RES/68/71 (Dec. 9, 2013).
4. International Law Commission, Draft Articles on Responsibility of States for
Internationally Wrongful Acts, U.N. GAOR, 56th Sess.,U.N. Doc. A/RES/56/83 (2002)
Art.48(1)(b) [State Responsibility Articles].
WEBLOGS
1. Chapter 3, Harmonizing Environment and Trade Policies, Ministry of the Environment,
Government of Japan < http://www.env.go.jp/en/earth/iec/hetp/ch3.html > last accessed
on 29/08/14 at 4:50 pm.
2. ICRC, Assessment of Customary International Law, Customary IHL - Introduction.
Accessed September 5, 2014 at http://www.icrc.org/customary-
ihl/eng/docs/v1_rul_in_asofcuin.
~Memorial on Behalf of Respondent~
VIII | P a g e
3. IUCN Red List of Threatened Species, Isurus Paucus" (Longfin Mako), January 31,
2006. Accessed September 5, 2014 at http://www.iucnredlist.org/details/60225/0; ICUN
Red List of Threatened Species, “Isurus Oxyrinchus” (Shortfin Mako), june 16, 2004.
Accessed September 5, 2014 at http://www.iucnredlist.org/details/39341/0 [IUCN Red
List.].
4. United Nations Environment Program Guidelines And Principles on Shared Natural
Resources
http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Inte
rest_Groups/Decision-
Making/Supplemental/Enviro_Law_Guidelines_Principles_rev2.pdf.
5. United Nations Environment Program Guidelines And Principles on Shared Natural
Resources
http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Inte
rest_Groups/Decision-
Making/Supplemental/Enviro_Law_Guidelines_Principles_rev2.pdf.
6. Humane Society International, National laws, multi-lateral agreements, regional and global
regulations on Shark Protection and Shark Finning, available at
http://www.hsi.org/assets/pdfs/shark_finning_regs_2014.pdf.
~Memorial on Behalf of Respondent~
IX | P a g e
STATEMENT OF JURISDICTION
The Federal States of Alopias and the Republic of Rhincodon have submitted the current case
concerning Questions Relating to the Protection of the Mako Sharks and Trade Restrictions
to the International Court of Justice by a Special Agreement, and have transmitted a copy
thereof to the Registrar of the Court in accordance with Article 40(1) of the Statute of the
International Court of Justice. Both parties have, therefore, accepted the jurisdiction of the
Court under Article 36, paragraph 1 of the Statute of the International Court of Justice.
~Memorial on Behalf of Respondent~
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STATEMENT OF FACTS
1. The Federal States of Alopias (hereinafter, Alopias) and the Republic of Rhincodon
(hereinafter, Rhincodon) are located in the Varium Sea. The Longfin and Shortfin Mako
Sharks are found in the territorial seas and EEZs of both the countries. (R. ¶ 1)
2. Alopias and Rhincodon signed and ratified a bilateral trade agreement, called TARA. (R.
¶ 12)
3. Rhincodon enacted the Humane Fishing Act, which defined shark finning, mentioned
actions prohibited, and measures that Rhincodon’s Foreign Ministry could take to ensure
environmental stability. (R. ¶ 15)
4. Alopias enacted the ‘Shark Finning Prohibition Act’. (R. ¶ 17)
5. A diplomatic note was sent to Alopias. Rhincodon offered educational assistance to help
bring Alopian fishing to level of international norms. (R. ¶ 18)
6. After various instances of shark finning in Alopias which were reported, Alopias
acknowledged the grave situation. (R. ¶ 19)
7. Various NGOs sent petitions to the Rhincodon government stating that Alopian fishing
operations were openly spining sharks in order to be within the Alopias’ domestic law,
and Alopias agreed to prosecute individuals for spining. (R. ¶¶ 21, 23)
8. Rhincodon after repeated efforts to ensure spinning did not occur, sent a diplomatic note
to Alopias, warning of the possibility of imposition of trade restrictions on fish and fish
products. (R. ¶ 27)
9. Rhincodon implemented trade restrictions on Alopias and Alopias found the same in
violation of the TARA. Whereas Rhincodon found that they were within the ambit of
TARA. After an effort to resolve the dispute failed, both parties on the 16 June 2014
signed a Special Agreement submitting the disputes to the International Court of Justice
(R. ¶¶¶ 29, 30, 31, 33).
~Memorial on Behalf of Respondent~
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ISSUES RAISED
1. ALOPIAS VIOLATED ITS CUSTOMARY OBLIGATIONS BY NOT
PREVENTING THE FINNING AND SPINING OF MAKO SHARKS.
2. ALOPIAS VIOLATED ITS TREATY OBLIGATIONS BY NOT PREVENTING
THE FINNING AND SPINING OF MAKO SHARKS.
3. ALOPIAS CANNOT PERMIT FINNING AND SPINING OF MAKO SHARKS BY
CLAIMING PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES.
4. RHINCODON HAS NOT VIOLATED INTERNATIONAL LAW BY BANNING
THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS.
~Memorial on Behalf of Respondent~
XII | P a g e
SUMMARY OF ARGUMENTS
Alopias violated International Law when it allowed or otherwise failed to prevent the
exploitative finning and spining of Mako Sharks. It violated both customary and treaty
obligations of protecting vulnerable species and ensuring their sustainable use in
advancing human activities underlying the CBD, CMS, UNCLOS, UN General Assembly
Resolutions and CMS MoU. Alopias violated its national customary obligations and
failed to respect its preventive obligation. The UNCLOS imposes stricter obligations with
regard to ‘shared’ marine living resources. Alopias has an erga omnes obligation to
protect exhaustible natural resources susceptible to depletion. Exploitative use of
vulnerable species cannot be justified under the claim of State Sovereignty. Alopias has
the responsibility to not cause transboundary harm. Further, Article 15 of the TARA
allows for Quantitative Restrictions which are necessary to protect public morals or
relating to the conservation of exhaustible natural resources. The Policy of imposing trade
restrictions in pursuance of environmental objectives has been in practice for a long time
as well as being supplemented by provisions providing for the same in several MEAs.
Moreover, the measure of imposing trade sanctions on a State as counter-measures does
not violate customary law. Thus Rhincodon has not violated international law by banning
the importation of fish and fish products from Alopias.
1 | P a g e
ARGUMENTS ADVANCED
1. ALOPIAS VIOLATED ITS CUSTOMARY OBLIGATIONS BY NOT PREVENTING THE FINNING
AND SPINING OF MAKO SHARKS
An international custom should constitute ‘evidence of a general practice accepted as law’.1
The material of customary international law is to be looked for primarily in the actual
practice and opinion juris of States.2
A. Alopias violated Customary International Law underlying its treaty obligations
Treaties have long been considered significant in determining the existence of customary
international law because they indicate how States view certain rules of international law.3
The International Law Association suggests that a multilateral treaty may interact with
custom in four ways, including that a multilateral treaty:
a) can provide evidence of existing custom;
b) can even give rise to new custom of “its own impact” if the rule concerned is of a
fundamentally norm-creating character and is widely adopted by States with a view to
creating a new general legal obligation.4
The Court explained that the fact these principles have been codified or embodied in
multilateral conventions does not mean that they cease to exist and to apply as principles of
customary law, even as regards countries that are parties to such conventions. Such principles
continue to be binding as a part of customary international law, despite the operation of
1 Charter of the United Nations and Statute of the International Court of Justice, June 26,1945, San Francisco, Art.38. [UN Charter]. 2 Continental Shelf (Libyan Arab Jarnahiriya/Malta) [1985] I. C.J. Rep. 13. 3 ICRC, Assessment of Customary International Law, Customary IHL - Introduction. Accessed September 5, 2014 at http://www.icrc.org/customary-ihl/eng/docs/v1_rul_in_asofcuin 4ILA, Final Report of the Committee on the Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London, 2000, Principles 20–21, 24, 26 and 27, at 754–765.
~Memorial on Behalf of Respondent~
2 | P a g e
provisions of conventional law in which they have been incorporated.5 Even where treaties
create new law, the law so created by the treaties will undergo a process of transformation
into customary law to become law in the true sense of the word.6
When the core objectives of conventions and multilateral agreements like the CBD, CMS and
CMS MoU are read together, it is observed that protection of vulnerable species and the
sustainable use of biological resources in advancing human activities form the crux.
Considering that Alopias is a Party to all the aforementioned conventions and agreements,
there is no doubt that it has the accepted the prevention of exploitative finning and spining of
the Mako Sharks as a customary obligation.
Further, the UN General Assembly Resolution No. 68/71 calls upon States to take regulate
shark fisheries and incidental catch of sharks, in particular those conducted for harvesting
shark fins. While assessing the customary status of a rule, significance must be accorded to
the fact that the UN Charter was almost universally ratified and that relevant UN General
Assembly resolutions had been widely approved.7 If Governments choose to take their formal
stance by means of a General Assembly Resolution, there is no a priori reason why this
should not be binding on such a Government/State.8 The UN General Assembly Resolution
No. 68/71 was widely adopted by the States, without a vote, and hence, constitutes a
customary obligation.
5 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S) [1986] I.C.J Rep 14. [Nicaragua]. 6 Bing Bing Jia, The Relation between Treaties and Customs, Chinese J.I.L(February 4, 2010) http://chinesejil.oxfordjournals.org/content/9/1/81.full#sec-5. 7 Nicaragua, supra note 5. 8 International Law Association, Formation of Customary (General) International Law, 1984. Accessed September 5, 2014 at http://www.ila-hq.org/en/committees/index.cfm/cid/30
~Memorial on Behalf of Respondent~
3 | P a g e
Furthermore, State practices in the form of national legislation and international treaties are
themselves evidence of opinio juris.9 A country’s legislation may be extra-territorial in its
range, thus affecting the interest of other States.10 The fact that Alopias adopted the SFPA in
itself indicates that prohibition of finning was recognized as a customary rule essential for the
protection of Mako Sharks.
Therefore, by permitting finning and spining (which is a practical, legal and moral equivalent
of finning) of Mako Sharks, Alopias violated its national customary law and its obligation
under Customary International Law.
Moreover, Alopias cannot claim that it is a “persistent objector” with respect to the
customary law prohibiting the finning/spining of Mako Sharks. The persistent objector
principle allows an individual state to opt out of universal rules of international law if it
persistently objected to the rule during the rule’s emergence.11 Alopias is not a persistent
objector as it ratified or accepted the aforementioned treaties and agreements, in addition to
passing a national legislation in that respect.
B. Alopias has violated the Preventive Principle.
The 1972 Stockholm Declaration and the ICJ endorsed the Preventive Approach as a
customary rule.12 Under the Preventive Principle, a state may be under an obligation to
prevent not only transboundary harm, but also damage to the environment within its own
jurisdiction, 13 including by means of appropriate regulatory, administrative and other
measures.
9 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 380 (6th ed., 2003) [Brownlie]. 10 Supra note 8. 11 Ted Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. I. L. J., 457 ( 1985). 12 Pulp Mills Case on the River Uruguay (Argentina v. Uruguay) I.C.J. Rep. 2010, p. 14 [Pulp Mills]. 13 Judge N. Singh, Foreword, in ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT: LEGAL
~Memorial on Behalf of Respondent~
4 | P a g e
The obligation ‘to act with due diligence’ is an obligation which entails not only the adoption
of appropriate rules and measures, but also a certain level of vigilance in their enforcement
and the exercise of administrative control applicable to public and private operators, such as
the monitoring of activities undertaken by such operators.14
Alopias failed on two grounds: firstly, it failed to exercise vigilance in enforcing the law on
prohibition of finning on its nationals and secondly, by not preventing finning and spining of
a highly migratory species, found in the territorial seas and exclusive economic zones of
other States, it has caused transboundary harm. Therefore, Alopias failed to respect its
preventive obligation.
PRINCIPLES AND RECOMMENDATIONS, xi–xii (R. D. Munro and J. G. Lammers ed., 1986). 14 Pulp Mills, supra note 12.
~Memorial on Behalf of Respondent~
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2. ALOPIAS VIOLATED ITS TREATY OBLIGATIONS BY NOT PREVENTING THE FINNING AND
SPINING OF MAKO SHARKS
A. Alopias violated the provisions of the CBD
(i) Alopias failed to observe the Precautionary Principle underlying the CBD
The CBD incorporates the Precautionary Principle, by providing that where there is a threat
of significant reduction or loss of biodiversity, measures should not be avoided or postponed
in the name of lack of full scientific certainty.15 The provisions of the CBD also extend to
marine biodiversity, and are not overridden by UNCLOS as long as they are consistent with
the ‘general principles and objectives’ of the Convention.16
The Precautionary Principle, also adopted in the UN General Assembly Resolution No.
68/71, is applicable only when: (a) the threat is uncertain; (b) there is a threat of
environmental damage and (c) the threatened harm is of an irreversible nature.17 In the
present matter, the Supreme Court of Alopias permitted spining without regard to the
Precautionary Principle. Uncertainty exists because there is no scientific data available on the
adverse impact of spining on the shark population. However, it is reasonable to expect
environmental damage since ‘legal’ spining of sharks presents a perfect alternative to skirt
the ban on finning. The purpose of incorporating the proviso of ‘fins naturally attached’ is to
deter fishermen from finning; however, permitting spining defeats this purpose. Considering
that the Mako Sharks are already vulnerable, there is no doubt that their continued finning
and spining would lead to their extinction, which is irreversible.
(ii) Alopias failed to adopt the Principle of Sustainable Use under the CBD
15Preamble to the Convention on Biodiversity, 1760 UNTS 79; 31 ILM 818 (1992) [CBD]. 16 P. BIRNIE, A. BOYLE & C. REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT 744-752 (3rd ed., 2009). 17 IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, May 16, 2007. Accessed September 5, 2014 at http://www.monachus-guardian.org/library/iucn07a.pdf
~Memorial on Behalf of Respondent~
6 | P a g e
Parties to the CBD are obligated to co-operate for the conservation and sustainable use of
Biodiversity, in respect of areas beyond national jurisdiction and on other matters of mutual
interest.18 The concept of ‘Sustainable Use’ as reflected in the CBD refers to the use of
components of biological diversity in a way and at a rate that does not lead to the long-term
decline of biological diversity, thereby maintaining its potential to meet the needs and
aspirations of present and future generations.19 The 1994 WTO Agreement commits parties to
‘the optimal use of the world’s resources in accordance with the objective of sustainable
development’.20
The freedom to fish was first justified on the basis that fish were an inexhaustible resource.21
However, today, a species of biological diversity is considered a non-renewable resource of
the international community. 22 The phrase “exhaustible natural resources” under GATT
Article XX (g) includes not only “mineral” or “non-living” resources but also living species,
which may be susceptible to depletion.23 The susceptibility of the Mako Sharks to depletion
can be noted from the fact that both Isurus oxyrinchus and Isurus paucus are listed as
Vulnerable Species in the IUCN Red List of Threatened Species. In view of the declining
population trend of these species, Range States are obligated to take conservation measures to
protect them. This is the raison d’être of the banning finning. It is a settled that once an
obligation has been domestically implemented, the party must ensure that it is complied with
18 CBD, supra note 15, art. 5 19 CBD, supra note 15, art. 2. 20 WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 4 (1999), 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994) [WTO Agreement] 21 DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA 374 (Cambridge University Press, 2009). 22 PATRICIA W. BIRNIE ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT 147 (3rd ed. 1999). 23 United States - Import Prohibition Of Certain Shrimp And Shrimp Products, WT/DS58/AD/R, 12 October, 1998 [Shrimp Case]. 24 JACOB WERKSMAN, JAMES CAMERON & PETER RODERICK, IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW 53 (2014).
~Memorial on Behalf of Respondent~
7 | P a g e
by those within its jurisdiction and control.24 In failing to enforce the SFPA, and in defeating
the very purpose of the TARA, Alopias violated its obligation to sustainably use natural
resources.
Further, the ‘Principles on the Role of Law and Sustainable Development’ adopted at the
National Judges Meeting (World Summit on Sustainable Development, Johannesburg)
affirmed that members of the judiciary are ‘crucial for promoting compliance with, and the
implementation and enforcement of, international and national environmental law’, and
recognized that ‘rapid evolution of multilateral environmental agreements and national
statutes concerning the protection of the environment require courts to interpret and apply
new legal instruments in keeping with the principles of sustainable development’. 25 By
allowing the spining of sharks, Alopias and its Supreme Court have grossly neglected their
obligation to interpret legal instruments in accordance with principles of sustainable
development.
The concept of Sustainable Use also enshrines the Principle of Intergenerational Equity.26
The Stockholm Declaration provides that man bears ‘a solemn responsibility to protect and
improve the environment for present and future generations’. 27 The Rio Declaration
emphasizes upon the need to reconcile intergenerational equity with the right to
development.28 Alopias fails on this ground too, since it permits the exploitative use of
exhaustible resources, with no concern whatsoever towards future generations. These actions
25 PHILIPPE SANDS, ADRIANA FABRA, JACQUELINE PEEL, PHILIPPE SANDS & RUTH MACKENZIE, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, 139 (3rd ed., 2012) [Principles of International Law]. 26 Ibid. at 207. 27Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf.48/14/Rev. 1(1973), Principle 1 [Stockholm Declaration]. 281992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I), Principle 4 [Rio Declaration].
~Memorial on Behalf of Respondent~
8 | P a g e
also defeat the object and purpose of the TARA, which seeks to promote sustainable
development through proper enforcement of environmental laws and regulations.
(iii) Principle of Common but Differentiated Responsibilities does not apply to
central treaty obligations under the CBD
The Principle of Common but Differentiated Responsibilities recognizes that special needs of
developing countries must be taken into account in the development, application and
interpretation of rules of international environmental law. 29 Provisions incorporating
differential treatment can be divided into 3 categories: (a) provisions that differentiate
between industrial and developing countries with respect to the central obligations contained
in the treaty; (b) provisions that differentiate between industrial and developing countries
with respect to implementation; and (c) provisions that grant assistance, inter alia, financial
and technological.30
The CBD implicitly acknowledges this Principle and provides that developing countries have
to protect biodiversity, but developed countries have to pay for it.31 Thus, the CBD does not
absolve a developing State of its central obligation under the Convention to protect
biodiversity, but provides that developed countries grant financial/technological assistance to
such developing countries. The Global Environmental Facility handles and diverts funds of
developed countries to developing countries for the implementation of the CBD.32 Thus,
Alopias cannot violate central treaty obligations claiming differentiated responsibilities.
29 Principles of International Law, supra note 25 at 233. 30 TUULA HONKONEN, THE COMMON BUT DIFFERENTIATED RESPONSIBILITY PRINCIPLE IN MULTILATERAL ENVIRONMENTAL AGREEMENTS: REGULATORY AND POLICY ASPECTS 112 (2009). 31 Pieter Pauw et al., Different Perspectives on Differentiated Responsibilities: A State-of-the-Art Review of the Notion of Common but Differentiated Responsibilities in International Negotiations, 2014. Accessed September 5, 2014 at http://www.die-gdi.de/uploads/media/DP_6.2014..pdf 32 Decision III/8 of the Conference of Parties 3, http://www.cbd.int/decision/cop/default.shtml?id=7104
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B. Alopias violated its obligations under the CMS
The CMS obligates Range State Parties to conserve migratory species with unfavourable
conservation statuses and to prevent any migratory species from becoming endangered.33
The CMS MoU lists the Mako Sharks as migratory species whose conservation status is
‘unfavourable’. The Population trends for both species are declining, as per IUCN data.34
Both are listed as Vulnerable Species on the IUCN Red List of Threatened species, i.e., they
are on the verge of becoming Endangered. Yet, Alopias is not enforcing a ban on their
finning, and is upholding the legal validity of a loophole in its legislation. According to rules
of international law, neither a Constitutional mandate nor the enactment of a statute provides
an excuse for a treaty violation.35 Therefore, Alopias failed to perform its obligation under
the CMS MoU.
C. Alopias violated its obligations under the UNCLOS
States have the sovereign right to exploit their natural resources pursuant to their
environmental policies and in accordance with their duty to protect and preserve the marine
environment.36 Many marine living resources are migratory and do not remain within the
territorial jurisdiction of any single state. Such marine living resources are ‘shared’ within the
meaning of the 1978 Draft UNEP Principles.37 States ought to co-operate and implement the
33 Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333; 19 ILM 15 (1980), art. 2 [CMS]. 34 IUCN Red List of Threatened Species, Isurus Paucus" (Longfin Mako), January 31, 2006. Accessed September 5, 2014 at http://www.iucnredlist.org/details/60225/0; ICUN Red List of Threatened Species, “Isurus Oxyrinchus” (Shortfin Mako), june 16, 2004. Accessed September 5, 2014 at http://www.iucnredlist.org/details/39341/0 [IUCN Red List] 35 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.”) [VCLT]. 36 1982 United Nations Convention on the Law of the Sea, 10th December, 1982, 1833 UNTS 3, art. 193 [UNCLOS]. 37 United Nations Environment Program Guidelines And Principles on Shared Natural Resources http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Interest_Groups/Decision-Making/Supplemental/Enviro_Law_Guidelines_Principles_rev2.pdf.
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measures required for the conservation and development, and equitable exploitation, of those
resources, taking into account any international agreement in force between them. 38
The Mako Sharks are listed as “Highly Migratory Species” under the UNCLOS. Both
Rhincodon and Alopias ought to preserve the shared stocks of Mako Sharks and make
sustainable and optimal use of the marine living resources, both in their territorial waters and
in the exclusive economic zones.
There is no denying that a coastal state has within the EEZ ‘sovereign rights for the purpose
of exploring and exploiting, conserving and managing the natural resources, whether living
or non-living’.39 However, where the same stock or stocks of associated species occur within
the exclusive economic zones of two or more coastal States, these States shall seek, either
directly or through appropriate sub-regional or regional organizations, to agree upon the
measures necessary to co-ordinate and ensure the conservation and development of such
stocks.40
Further, Articles 6 and 7 of the 1995 Fish Stocks Agreement provide for the conservation
measures that ought to be adopted by States in respect of shared stocks within their territorial
waters as well. Article 6 prescribes the adoption of the Precautionary Approach in the
conservation of highly migratory fish stocks41 whereas Article 7 obligates States to cooperate
and promote the objective of optimum utilization of such stocks throughout the region, both
within and beyond the areas under national jurisdiction.42
38 Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3 (July 25). 39 UNCLOS, supra note 36, Art. 56(1). 40 UNCLOS, supra note 36, Art. 63. 41United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542 (1995), art. 6(1) [UN Fish Stocks Agreement]. 42 Ibid, art. 7(1)(b).
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In view of these obligations, Rhincodon and Alopias agreed to prohibit shark finning.
However, continued instances of shark finning by nationals of Alopias and the legalization of
spining of sharks, which is for all practical purposes an equivalent of finning, have harmed
Rhincodon. When a state signs a treaty, the Vienna Convention on the Law of Treaties
imposes a legal obligation on the signatory state not to defeat the treaty’s object or purpose.43
The actions of Alopias, however, are in utter disregard of the obligations under the UNCLOS.
43 VCLT, supra note 35, Art. 18.
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3. ALOPIAS CANNOT PERMIT FINNING AND SPINING OF MAKO SHARKS BY CLAIMING
PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES
While the principle of State Sovereignty allows states to conduct or authorise such activities
as they choose within their territories, including activities that may have adverse effects on
their own environment 44 , it is a rule of customary law 45 that States are subject to
environmental limits in the exercise of their rights under the principle of permanent
sovereignty over natural resources. The Court declared that any environmental damage of a
far-reaching and irreversible nature is an obligation erga omnes.46 Once an obligation is
recognized as erga omnes, any State may invoke the responsibility of another for its breach.47
Exploitative use of vulnerable species leads to far-reaching environmental damage, and
therefore, it cannot be justified under the principle of State Sovereignty.
A. Alopias’s actions cause Transboundary Harm
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’.48 This principle has also been recognized by the ICJ. 49 Considering that the
Mako Sharks are found in the territorial waters and exlusive economic zones of both Alopias
and Rhincodon, there is no doubt that their continued finning and spining by Alopias would
harm Rhincodon. This submission is supported by the judgment of the WTO Appellate
44 Principles of International Law, Supra note 25 at 191. 45 Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, I. C.J. Reports 1996, p. 226 46 Gabc�íkovo-Nagymaros Project (Hung. v. Slov.),1997 I.C.J. 7(Sept.7). [Gabc�íkovo-Nagymaros Project]. 47 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess.,U.N. Doc. A/RES/56/83 (2002) Art.48(1)(b) [State Responsibility Articles]. 48 Principles of International Law, Supra. note 25, at 435. 49 Trail Smelter Arbitration (United States v Canada) Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941) [Trail Smelter].
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Body.50 Thus, Alopias is violating the Principle of State Responsibility and its obligations
under the CBD by causing transboundary harm.
50Shrimp Case, Supra note 23.
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4. RHINCODON HAS NOT VIOLATED ITS OBLIGATIONS UNDER INTERNATIONAL LAW BY
BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS
It has been contended by the applicants that the import embargo on Alopian fish and fish
products violates Rhincodon’s international law obligations. However, this measure is
justifiable under litras (a) and (g) of Article 15 of TARA. Moreover, such trade sanctions to
tackle environmental problems have been legitimised through extensive state practice
accompanied with the relevant opinion juris as has been set forth here below. Arguendo, the
doctrine of countermeasures can be invoked to preclude the wrongfulness of Rhincodon.
A. The trade sanction can be justified under Article 15 (a) of TARA
Article 15(a) of TARA permits the invocation of trade restrictive measures which are
necessary to protect public morals. This provision, being similarly worded to Article XX (a)
of GATT, reliance may be placed upon decisions of GATT/WTO bodies. In the context of
Article XX (a), a Member has to show firstly, that, the purpose of measure was "to protect
public morals"; and, secondly, that the measure is “necessary”.51
A.1. The measure was to protect the people’s moral concerns about shark cruelty
The trade embargo was implemented so as to protect the people in Rhincodon from being
exposed to shark products harvested through techniques (such as spining and finning) which
inflict excessive animal suffering.
a. Concern for shark welfare is within Rhincodon’s sphere of public morality
The Appellate Body’s report in the EC – Seal Products52 dispute clearly shows that animal
welfare is an aspect of public morals under GATT Article XX(a). The concern for inhuman
51 WTO, United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body of 7 April 2005, ¶ 305. 52 Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R (May 22, 2014).
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treatment of animals is seen by many societies as being part of their system of public
morals. 53 Presently, the ban has been imposed following the widespread protests by
environmental and animal-welfare non-governmental organizations over continued finning
and spining of mako sharks by Alopias fishing vessels. 54 Thus, the measure has been
designed to protect the moral conscience of the people of Rhincodon.
b. The moral concern for shark welfare does not stand dilated merely due to the
practice of Concentrated Animal Feeding Operations
It has been contended by the applicant that the presence of ‘Concentrated Animal Feeding
Operations’ in Rhincodon has the effect of dilating the moral concerns of the public about
animal welfare.55 However, this argument is not tenable in view of the ‘EC-Seal’ decision
wherein the Panel rejected a similar contention on the ground that the conditions of different
animal harvesting techniques are so different as to render the animal welfare aspects of the
respective techniques different. 56 CAFO refer to a commonly employed technique of
industrial production of livestock products through breeding and harvesting farm animals in
confined spaces. Thus, the environmental conditions and level of suffering inflicted being
radically different, there can be no comparison as to their implications on society’s tolerance
towards animal cruelty. This is buttressed by the fact that countries such as the USA which
permit CAFO prohibit shark finning altogether. Thus, merely because CAFO has been
allowed in Rhincodon, it cannot be said that shark welfare has not crystallised as a public
moral in society.
53 Steve Charnovitz, The Moral Exception in Trade Policy, Virginia Journal of International Law, 38 (1998), 689. 54 Record, ¶ 21. 55 Record, ¶ 30. 56 Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R (Nov. 25, 2013), ¶ 7.409.
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Moreover, it is within the margin of appreciation of individual states to determine whether a
moral concern has become a public moral or not.57 As has already been established there
exists such a moral concern in society which is sufficient to bring it within the fold of the
public morality exception in Article 15(a).
A.2. The measure was ‘necessary’ to achieve the policy object
The AB has elucidated that ‘necessity of a measure’ would have to be assessed against three
criteria,58 namely: (i) the importance of the policy objective pursued; (ii) the contribution of
the measure to the objective pursued; and (iii) the absence of a ‘readily’ available alternative
measure which is less trade-restrictive.59
The importance of the policy object can be gauged from the fact that is agreed to by the
General Assembly in its Resolution60 and supported by extensive state practice.61 The trade
restrictions would compel Alopias to amend its laws to effectively ban shark finning and thus
stop the inhumane killing of sharks. The measure is restrictive only to the extent that it
prohibits the import of fish and fish products only. Also, there is no readily available
alternative measure as all other measures such as offers to provide educational programs,
negotiations regarding developmental assistance in law enforcement and mediation were all
demonstrated to be fruitless.
57 Panel Report, United States – Measure Affecting Cross Border Supply of Gambling and Betting Services, WT/DS285/R (adopted 20 April 2005), ¶ 6.461. 58 WTO, Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body of 11 December 2000, WT/DS169/AB/R, ¶ 161. 59 Pitschas and Schloemann, WTO Compatibility of the EU Seal Regime: Why Public Morality is Enough, Institute of Economic Law, Transnational Economic Law Research Centre (TELC), School of Law, Martin Luther Univeristy Halle-Wittenburg. 60 G.A.Res. 68/71, ¶15, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 61 Humane Society International, National laws, multi-lateral agreements, regional and global regulations on Shark Protection and Shark Finning, available at http://www.hsi.org/assets/pdfs/shark_finning_regs_2014.pdf (last visited October 3, 2013).
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B. The measure, being related to the conservation of exhaustible natural resources,
can be justified under Article 15(g) of TARA
(i) Mako sharks can be classified under the head of exhaustible natural resources
The WTO Appelate Body, in its report on US—Shrimp62, held that the term exhaustible
natural resources should not be confined to non-living resources. The criterion which
distinguishes exhaustible from non-exhaustible-natural-resources is, in the AB’s view,
whether the item at hand is being depleted faster than it is being reproduced. The AB went on
to state that sea turtles, a living organism, could be regarded as an exhaustible-natural-
resource since a host of international conventions and bodies recognise sea turtles as
endangered species.63 Similarly, as both the species of mako sharks have been categorised in
the ‘Vulnerable’ list of the IUCN’s Red-list and their populations clasified as ‘Decreasing’64,
they can be regarded as exhaustible natural resources.
(ii) The measure can have mixed motives as long as conservation is the primary
object
Article 15 (g) only requires that the concerned measure is “relating to the conservation” of
exhaustible living resources. In the context of the similarly phrased Article XX(g), the GATT
Panel65 has interpreted this phrase to mean that the import measure should be “primarily-
aimed” at addressing a conservation goal and invoked in conjunction with comparable
restraints on domestic production in order to be justified. This permits “mixed motives” as
62Shrimp Case, supra note 23, ¶ 130. 63Ibid,¶¶ 128, 130 and 153.
64IUCN Red List, Supra note 34. 65GATT Panel Report, Canada — Measures Affecting Exports of Unprocessed Herring and Salmon, L/6268, adopted 22 March 1988, BISD 35S/98 [GATT Panel Report - Exports of Unprocessed Herring and Salmon].
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long as the main purpose of a measure was environmental.66 Clearly, the main purpose of the
trade sanction is to reduce the demand for Alopian fish and fish products thereby compelling
Alopian fishermen to adopt more sustainable practices which will bolster the conservation
status of mako sharks.
(iii) The measure has been taken in conjunction with restrictions on domestic
production and consumption
Article 15 (g) of the TARA has one qualification i.e., the measure should be made effective in
conjunction with restrictions on domestic production. In the Canada-Herring and Sockeye
Salmon case67, concerning the similarly phrased Article XX(g), the Panel interpreted this
phrase to mean and include comparable restrictions on domestic consumption and
production.68 In other words, this qualifying phrase can be said to be a “national treatment”
provision.
The Appellate Body has stated that the purpose of the national treatment provisions is to
avoid protectionist domestic measures.69 Elaborating further on the issue, the Panel clarified
that every measure which was discriminatory need not be illegal under the GATT as long as it
did not confer on the domestic industry any sought of protectionism.70 The measure of
imposing trade restrictions on fish and fish products by Rhincodon on Alopias was applied
for the sole legitimate purpose of conservation. No motives such as ‘protectionism’ were
involved. Moreover, Rhincodon, by enacting the Humane Fishing Act, which bans shark
66DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT AND THE FUTURE 267 (Peterson Institute, 1994) [Greening the GATT]. 67GATT Panel Report - Exports of Unprocessed Herring and Salmon, Supra note 65.
68Greening The GATT, Supra note 66, p. 49. 69European Communities- Measures Affecting Asbestos and Asbestos Containing Products (2000) WTO Doc. WT/DS135/AB/R (Appellate Body Report), ¶ 97. 70GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, BISD 39S, p. 206.
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finning and even consumption of shark fins, has imposed similar restrictions on domestic
production and consumption of shark fins.
(iv) The measure is not of an extra-territorial design since mako sharks migrate to
Rhincodon waters
It has been the applicant's contention that the measure is of an extra-territorial design as it is
meant to tackle the problem of overexploitation of mako sharks in Alopian waters. However,
this contention does not hold good in view of the US-Shrimp case wherein the Appellate
Body observed that the fact that turtles are migratory species, which spend part of their life-
cycles in United States waters, provides for a sufficient nexus with USA.71 Similarly, as
Rhincodon comes within the range of mako sharks,72 the legislation cannot be struck down
on the pretext of extra-territoriality.
C. The policy of applying trade sanctions in pursuance of environmental objectives
does not violate customary international law.
The policy of imposing trade sanctions in the pursuance of environmental objectives has
crystallised as legitimate within the sphere of CIL.
(i) There exists enough evidence of state practice to justify the Policy
Trade restrictive measures play a significant role in addressing environmental problems.73
The Montreal Protocol74, the Basel Convention75, the CITES76, the ICCAT, 196677 and the
71Shrimp case, Supra note 23, Chapter VI, Part-B, ¶ 7. 72Record, ¶ 1. 73Chapter 3, Harmonizing Environment and Trade Policies, Ministry of the Environment, Government of Japan < http://www.env.go.jp/en/earth/iec/hetp/ch3.html > last accessed on 29/08/14 at 4:50 pm. 74Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3 (1987), art. IV [Montreal Protocol] 751989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 28 ILM 657 (1989), art. [Basel Convention] 76Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993 UNTS 243 [CITES]
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IPPC, 195178 are all examples of multilateral agreements with provisions dealing with trade
restrictions.
International Organisations, in turn, are also instrumental in the creation of customary law.79
The mere fact that the WTO has constituted a Committee on Trade and Environment with the
mandate of ensuring that trade liberalisation does not stand in the way of environmental
protection is an important pointer in this respect.80The WTO panels have repeatedly affirmed
trade sanctions in pursuance of legitimate environmental objectives. For instance, take the
case of USA applying trade restrictions for the conservation of Atlantic Tuna81. Also, in
another case, the body approved US trade restrictions to protect sea turtles which were
getting caught as by-catch along with shrimps.82
(ii) Opinio Juris does exist to supplement the Policy.
The actions of Rhincodon comply with customary law in that the Draft Articles on the
Responsibility of States for Internationally Wrongful Acts allow for ‘counter-measures’ under
Article 49. The ILC’s drafts constitute evidence of custom, contribute to the corpus of usages
which may create new law and evidence the opinion juris83. Trade sanctions are the most
available form of countermeasures and trade thus plays a central role in environmental
77International Convention for the Conservation of Atlantic Tunas, 20 UST 2887 [ICCAT] 78International Plant Protection Convention (with annex). Rome, 6 Dec 1951, Entered into force 3 April 1952 79MALCOLM SHAW, PRINCIPLES OF INTERNATIONAL LAW 83 (6th ed, Cambridge University Press, 2008).[Malcolm Shaw]. 80WTO Secretariat, ‘Trade and Environment at the WTO’, April 2004, at 21. 81GATT Panel Report- United States – Restrictions on Imports of Tuna, GATT Doc DS29/R (1994) 33 ILM 839 ¶ 3.10.
82Shrimp Case, Supra note 23. 83Malcolm Shaw, Supra note 79 at 83.
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enforcement.84Moreover, this Court upheld the validity of such unilateral economic sacntions
in the Military and Paramilitary Activities case.85
4. Arguendo, the doctrine of necessity can be used to preclude wrongfulness of Rhincodon
The Draft Articles by the ILC, Article 2586 codifies customary international law regarding
necessity. Its essentials can be summarised as (1) that there must be an “essential interest” of
the State invoking necessity; (2) that interest must have been threatened by a ‘grave and
imminent peril’; (3) the act in question must have been the “only way” of safeguarding that
interest; (4) the act must not have ‘seriously impaired an essential interest of the State
towards which the obligation existed’; and (5) the State invoking necessity must not have
‘contributed to the occurrence of the state of necessity.
Following the criteria mentioned above, for there to be “essential interest” involved a
“jurisdictional nexus” must be proved87, which was present in the case at hand. A “peril”
appearing in the long term might be held to be “imminent” as soon as it is established’, since
‘the realisation of that peril, however far off it might be, is not thereby any less certain and
inevitable’. The ‘only way’ condition of the necessity doctrine suggests that there is a duty to
negotiate prior to employing unilateral trade measures in circumstances where time permits
this course of action.88 As the aforesaid criteria have been fulfilled in the present case,
‘necessity’ can be used to preclude wrongfulness on the part of Rhincodon.89
84Mary Ellen O'Connell, Using Trade to Enforce International Environmental Law: Implications for United States Law, 1 Ind. J. Global L. Stud. 273 (1994). 85Nicaragua, Supra note 5. 86State Responsibility Articles, Supra note 47, art. 25 accompanying commentary, Report of the Commission to the General Assembly on the work of its fifty - third session, Yearbook of the International Law Commission, Volume 11, Part 2 (2001), 72. 87Shrimp Case, Supra note 23, Chapter VI, Part-B, ¶ 7. 88Gabčíkovo–Nagymaros Project, Supra note 46, ¶ 62. 89Gabčíkovo–Nagymaros Project, Supra note 46, ¶ 54.
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CONCLUSION AND PRAYER
In light of the questions presented, arguments advanced and authorities cited, the agent for
the Respondent State prays before this Hon’ble Court, that it may be pleased to adjudge and
declare that:
1. That Alopias has violated international law in as much as it failed to prevent the finning
and spinning of Mako sharks.
2. That Rhincodon has not violated international law by banning the importation of fish and
fish products from Alopias.
OR
may pass any order or judgment as may be deemed necessary based on the circumstances of
the case.
For which the Agents of the Respondent shall pray duty-bound as ever most humbly to this
Honourable Court.
Sd//_________________________
(Agents for the Respondent)