the faranian shark-finning problem.pdf

8/21/2019 The Faranian Shark-Finning Problem.pdf

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Telders Case 2015

The Faranian Shark-Finning Dispute

1. Totara is a small Pacific island situated in the North-West of the Pacific Ocean. It is the

most Northern Pacific Island and its exclusive economic zone (EEZ) abuts the high seasto the North. It has been a member of the United Nations since 1986, when it gained its

independence from a European country, Kowaland. Its economy relies on the sale of cashcrops such as taro and coconut, licensing fishing in its waters by foreign fishing

companies, and foreign aid. It has a large EEZ, with a total area of 800,000 squarenautical miles.

2. Totara has insufficient economic resources to police fishing activities within its EEZeffectively. It has one old and rusty boat, the KowaPowa, which was donated by

Kowaland after it was retired from the Kowaland Coastguards.

3.

On 1 March 2013, Totara ratified the Pacific Shark Sanctuary Convention (the PSSC),

the relevant provisions of which are set out in Annex I. The Convention was negotiatedand signed by a group of five Pacific island states also located in the North-West Pacific,

including Totara, [together, the Founding States] who have intersecting EEZs whichtogether comprise a total area of 2.1 million square nautical miles in the Pacific Ocean.

The PSSC entered into force on 3 March 2013 with the fifth ratification by a FoundingState. The PSSC aims to provide a sanctuary for shark populations in the Pacific Ocean.

4. Soon after, the Founding States were approached by a well-known international non-Governmental Organisation, Save our Sharks [SoS], to enter into a partnership to police

its waters. SoS wished to protect the shark populations in Pacific Ocean and help theFounding States promote an eco-tourism diving industry in and around their coral reefs asan alternative industry. The Founding States agreed that SoS could fund and operate five

unmanned aerial vehicles (UAVs) for use in fishing surveillance, one for each of theFounding States.

5. The UAVs are small, unmanned flying vehicles that can operate at an altitude of up to

10,000 metres, and can stay airborne for up to 24 hours. They have a wing-span of 3.5metres. They can transmit satellite-like images or video to a vessel below, or back toland, and each UAV is armed with two red flares. The underbody of each UAV is painted

with the symbol of SoS and the flag of the state it was allocated to. The UAV allocatedto Totara is called Condor I.

6.

SoS programmed the UAVs to recognise certain patterns of behaviour that weresuggestive of shark-finning activity. With the knowledge of the Founding States, it also

programmed the UAVs to transmit the location of suspected shark-finning activity to allSoS vessels.

7. Farania is a large country located in the Asia-Pacific region. At least nine Faranian-flagged ships currently hold licences to fish within the Covered Area. Faranian citizens

have for centuries partaken in a delicate soup made from shark fins. The fins are believedto have medicinal properties. As shark populations around the world decline, it has

become more difficult for Farania to obtain satisfactory shark fin supplies to continue itstraditional cultural practices.


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8. Farania acceded to the PSSC on 14 March 2013.

9. On 15 March 2013, the Faranian Minister of Fisheries, Minister Saber, declared thatbeginning 1 April 2013, Farania would engage in a new scientific research programmewith the stated aims of increasing scientific knowledge of sharks and promoting the

cultural practices of Farania. The Government of Farania established the BlackPartnership Ltd (BPL), a company that is 100 per cent owned by the Government. BPL

purchased a large Faranian-flagged fishing vessel called the Black Shark, which heldfishing licences to fish for tuna in the EEZ of Totara. It is crewed with its original fishingcrew and one on-board scientist, Dr. Longtooth, an employee of the Ministry of Fisheries.

No other government employees are part of the on-board crew. It operates as both a

commercial fishing vessel and also a vessel for scientific research into sharks. Theproceeds of the fishing activity are used to help fund the scientific aims of the

programme.

10.TheBlack Sharkfollows a scientific program created by Ministry of Fisheries staff underthe direct guidance of Minister Saber, and included as a consultant Professor Peters of the

National Faranian University, a maritime biologist who specialises in sharks. Theprogram is set for a term of five years and has the stated scientific aim of measuring theoverall sustainability of certain shark populations in the Pacific, in particular in light ofthe pressures of ocean acidification and decreasing fish populations. Crew are instructedto measure the size and weight of every shark, checking how many teeth it has toapproximate its age, and the contents of its stomach to ascertain the source and adequacy

of shark food supplies. They must also record whether the sharks are pregnant whentaken to check the age at which sharks are reaching sexual maturity. The program has a

proposed kill of 30,000 sharks per year, taken at random during fishing activities, withthe following breakdown by species:

a. Spiny Dogfish (Squalus Acanthias)10,000 sharks

b.

Oceanic Whitetip (Cacharhinus Longimanus) 5000 sharksc. Grey Reef Shark (Carcharhinus Amblyrhynchos)5000 sharksd.

Porbeagle(Lamna Nasus)5000 sharkse. Longfin Mako(Isurus Oxyrinchus)5000 sharks

11.The program notes that there is current scientific uncertainty as to estimated shark

populations worldwide, but that the estimated number of sharks being taken worldwide isas much as 100 million per year, according to the most recent research.

12.Once the scientific inspection is carried out and records are made, the fins are removedand the remainder of the shark is thrown back into the ocean. Dogfish have six fins that

can be used in shark-fin soup, whereas all other shark species have seven. The fins from

Dogfish, the most prolific type of shark being studied, are sold in Farania. But the finsfrom the other shark varieties being studied, particularly the Porbeagle and the Whitetip,are exported to other countries where their fins fetch premium prices. These exports helpfund the high cost of the shark research programme, which is not fully offset by the other

fishing activities of the boat.

13.Following the announcement of the research program, Professor Peters resigned hisconsulting obligations and posted on his Twitter account that he had resigned because the


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methodology for the number of sharks to be taken had been determined by economics,not by science.

14.The Ministry of Fisheries issued an official statement that the scope of the programmewas determined in accordance with scientific advice and commercial constraints, but thatthe over-riding purpose was to gain a sample-size sufficiently large so that accurate

projections could be made of the current populations of the subject shark species.

15.On the 15 October 2014, theBlack Shark was fishing in the North-East of the exclusiveeconomic zone of Totara, for which it holds a licence to take 8,000 metric tonnes of tuna

per year. Condor I was following an automated flight pattern at 5,000 metres altitudeover Totaras EEZ, approximately 150 nautical miles from the nearest low-water line. It

registered a spreading dark area of water near a ship. It was programmed to recognise thisas a potential shark-finning and immediately flew down to 1,000 metres and began

recording video images, which it transmitted back to the Totarian Coastguard office. Theco-ordinates of the ship were also transmitted to the Pacific Warrior, a ship flagged toTotara, run by SoS and staffed by its volunteers.

16.

The Coastguard officer on duty, Ms Naira, viewed the images and decided it looked likeshark-fishing activity. Although the images were blurry, she could see some grey lumpsfloating in the water near a ship and the water around them looked red. The KowaPowawas docked on shore on the other side of the Island at the time, but immediately departedto try to intercept the suspect ship.

17.Ms Naira authorised Condor I to fire a red warning flare towards the ship, which it did.Posters at all Totarian Ports advertise that if a red warning flare is seen, the ship is to stopfishing and await Coastguard arrival on suspected illegal fishing activity. Approximatelyten minutes after the flare was fired, the Black Sharkpulled in its fishing nets and sailedin the direction of the high seas.

18.

In the meantime, Condor I continued to follow the ship, flying approximately 2,000metres above it. The Pacific Warrior also set off in pursuit, following the coordinatestransmitted from Condor I. ThePacific Warriorintercepted the ship at a distance of 10nautical miles beyond the limits of the Totarian EEZ.

19.On nearing the Black Shark, the volunteer crew on board the Pacific Warrior began

throwing rotten eggs and tear gas at the crew on the Black Shark. One volunteerlaunched a homemade rocket made from rotten pieces of shark carcass found floating inthe water and fired this at the bow of the ship, hitting a crew member who came out of a

hatch in the deck just as the rocket was fired. The crew member was knocked back hardonto the deck and suffered a fractured elbow as well as serious bruising.

20.

ThePacific Warrior harassed theBlack Shark for two hours, during which time Condor Iremained flying in the air above the ship, until it received notification that theKowaPowahad arrived, at which point it returned to land.

21.As the KowaPowa came into view, the Black Shark radioed advising that it was underattack by pirates and requesting it to arrest thePacific Warrior.


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22.TheKowaPowacalled off thePacific Warrior then seized theBlack Shark and towed itback to Totara. Once on shore, the Captain and crew were arrested and charged with

suspected illegal shark-finning and the boat was held at the Totarian port.

23.

On inspection of the boat, Totara found a pile of 13,400 shark fins. According to thelogbook kept on board, these fins were from 1,800 Spiny Dogfish taken within Totaras

waters and 200 Porbeagle shark fins that were recorded as having been taken in the highseas. The logbook suggests that so far in 2014, the Black Shark has caught 3,160 sharksin total.

24.Using an undercover staff member employed by the Government of Farania, SoS hasbeen documenting the international trade of shark fins from Farania and has provided

evidence to Totara suggesting that from 1 April 2013 to 31 October 2014, approximately63,000 shark fins have been exported by Farania to other shark-fin consuming countries.

25.None of the results of the scientific studies have yet been published.

26.Following a series of heated diplomatic cables between Totara and Farania, the Black

Shark and its crew were released on the payment by Farania of a bond of two millionUnited States dollars, deposited in the Totarian Supreme Court, the Highest Court ofTotara.

27.On 15 November 2014, the Supreme Court determined that according to Totariandomestic law, the bond would be forfeited as a penalty for the illegal shark fishing carried

out in Totaras sovereign waters. The Judgment declared that under Totarian law, thebond must be repaid to Farania if Totara did not have jurisdiction to arrest the boat underinternational law, or if there was no illegal fishing activity occurring within the TotarianEEZ.

28.On 17 November 2014, the Ministry of Fisheries in Totaria revoked all fishing licences

currently being fished by Faranian-flagged vessels.

29.

No steps were taken in Totara against the Pacific Warrior or any of its crew, whichcontinues to dock at a Totara port and fly the Totara flag.

30.On 1 December 2014, Farania filed an application at the International Court of Justice.

Accompanying the application was a separate application by the Society for FaranianShark-Fin Culture seeking amicus curiae status in the case and annexing a proposed brieffor inclusion in the case file. The Society for Faranian Shark-Fin Culture is an

international non-governmental organisation head-quartered in Farania that promotes theconsumption of shark-fin soup in order to protect one of the traditional cultural practices

in Farania. Its proposed amicus brief provides details of the shark-fin soup practice, and

annexes from the Societys research tracking the growing number of Faranians whoconsume shark-fin soup each year. The brief also argues that the Pacific Shark SanctuaryConvention must be read in a way that is consistent with other international conventionsrecognising the cultural rights of individual Faranians. The brief indicated that

representatives from the Society for Faranian Shark-Fin Culture would attend the oralhearings in the public gallery, but sought a right to file a further written brief following

the oral hearings in lieuof making oral submissions.


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31.Faranias application requested the International Court of Justice to adjudge and declarethat:

a. In arresting and detaining the Black Shark, Totara violated Faranias right tofreedom of navigation under article 87(1) of the United Nations Convention onthe Law of the Sea;

b.

In demanding and retaining the bond paid by Farania, and in revoking its fishinglicences, Totara acted in contravention of article IV(3) and article V(2) of thePacific Shark Sanctuary Convention;

c.

In failing to seize thePacific Warrior and arrest its crew for piracy on request forassistance by a Faranian-flagged vessel, Totara breached its obligation underarticle 100 of United Nations Convention on the Law of the Sea to cooperate to

the fullest possible extent in the repression of piracy on the high seas;d. The amicus brief filed by the Society for Faranian Shark-Fin Culture should be

admitted and considered by the Court as part of the case file and the Societyshould have a right to file a further written brief following the close of oralargument.

32.

Totara has indicated that it is in disagreement with Faranias application.

33.By consent of the parties, on 4 December 2014, the Court ordered that the oralproceedings would be held from 6 May 2015 to 8 May 2015.

34.Farania and Totara are both party to the following conventions without reservation:

a. the Charter of the United Nations;b.

the Pacific Shark Sanctuary Convention 2013;c.

the Vienna Convention on the Law of Treaties;d. the United Nations Convention on the Law of the Sea;

e. the United Nations Fish Stocks Agreement;

f.

the Convention on Biological Diversity.

35.

Totara is a member of the Western and Central Pacific Fisheries Commission and theForum Fisheries Agency, as are the other Founding States of the PSSC. Totara is a party

to the Convention on International Trade in Endangered Species of Wild Fauna andFlora, but Farania is not.

36.Both Farania and Totara have made declarations recognising the compulsory jurisdictionof the Court pursuant to article 36(2) of the Statute of the International Court of Justice

without reservation.

ANNEX I

The Pacific Shark Sanctuary Convention 2013

Preamble

Protecting the waters of the Covered Area as a sanctuary for all shark species;


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Safeguarding the natural and pristine environment of the Pacific for its people, for futuregenerations, and for all of humanity;

Recognising the common interest of all states fishing in the Pacific Ocean to ensure that sharkspopulations are managed sustainably;Recognising the importance of increasing scientific knowledge about shark populations in light ofcurrent uncertainties; and

Affirming their mutual commitment to rebuilding shark populations in the world and ensuringtheir long term conservation and sustainable management;

The Parties to the Pacific Shark Sanctuary Convention hereby agree as follows:

Article I

Definitions

1. For the purposes of this Convention, the Covered Area is defined as the declaredexclusive economic zones of the Founding States.

2. Shark means all species of sharks, including but not limited to, the following speciesthat may be found in the Covered Area: Spiny Dogfish (Squalus Acanthias); Oceanic

Whitetip (Cacharhinus Longimanus); Grey Reef Shark (Carcharhinus Amblyrhynchos);Porbeagle(Lamna Nasus);Longfin Mako(Isurus Oxyrinchus).

3. Founding States refers to the five state parties that negotiated and founded thisConvention, namely, Totara, Kauri, Nikau, Rimu and Pohutukawa.

4. State Party refers to any state that accedes the Convention, including the FoundingStates.

Article IIProhibition on commercial shark fishing

1. No State Party to this Convention and no vessel flagged to any State Party to this

Convention shall engage in commercial shark fishing activities within the Covered Area.

Such activities are absolutely prohibited.2. Any sharks caught in the ordinary course of fishing activities must be thrown back into

the ocean and no shark bodies or body parts may be kept on board.3. The State Parties are responsible for ensuring compliance with this article by all vessels

flying their flag and conducting fishing in the Covered Area.

Article IIICo-operation in enforcement and surveillance.

The Founding States agree to co-operate in the enforcement and surveillance of theCovered Area.

Article IVIssuance of fishing licences

1. No Founding State shall issue licences to any entity for the commercial fishing of sharksin its exclusive economic zone. Neither shall it consent to the issuance of such licence by

any other entity, including any Regional Fishing Organisation.2.

No Founding State shall henceforth issue any licence for commercial fishing for any fishvariety other than sharks in its exclusive economic zone to any entity unless the vessel


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that will fish under the licence is flagged to a State Party to this Convention. Neither shallit consent to the issuance of such licence by any other entity, including any Regional

Fishing Organisation.3. Any such licence may be revoked should the vessel or the State Party not fully comply

with the requirements of this Convention.4. Each Founding State shall otherwise retain full sovereignty to regulate and control fishing

activity within its EEZ.

Article VScientific Exception

1. Notwithstanding anything contained in this Convention, any State Party otherwiseholding a valid licence to fish may kill, take or treat sharks for purposes of scientific

research subject to such restrictions as to number and subject to other conditions as thestate party thinks fit, and the killing, taking, and treating of sharks in accordance with the

provisions of this Article shall be exempt from the operation of this Convention.2. The Founding States hereby consent to such scientific research programs being carried

out in their exclusive economic zones.

[]

Article X

Entry into Force

This treaty comes into force on being signed and ratified by the five Founding States.

Article XI

Accession by other states

Any state may accede to this Convention at any time after its entry into force. TheConvention comes into force for that State on the day of its accession.

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