NETHERLANDS (APPLICANT) (RESPONDENT) (DEMANDERESSE) (DÉFENDEUR)

Transcription

1 IN THE INTERNATIONAL COURT OF JUSTICE LA COUR INTERNATIONALE DE JUSTICE PEACE PALACE, THE HAGUE NETHERLANDS 2014 GENERAL LIST NO: 119 THE FEDERAL STATES OF ALOPIAS (APPLICANT) v. THE REPUBLIC OF RHINCODON (RESPONDENT) ÉTATS FÉDÉRAUX DE ALOPIAS (DEMANDERESSE) v. ENTRE LA RÉPUBLIQUE D RHINCODON (DÉFENDEUR) QUESTIONS RELATING TO THE PROTECTION OF MAKO SHARKS AND TRADE RESTRICTIONS MEMORIAL FOR THE APPLICANT/MÉMORIAL DE LA DEMANDERESSE NINETEENTH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INDEX OF AUTHORITIES... iv STATEMENT OF JURISDICTION... xvi QUESTIONS PRESENTED... xvii STATEMENT OF FACTS... xviii SUMMARY OF ARGUMENTS... xx ARGUMENTS... 1 I. ALOPIAS HAS NOT VIOLATED INTERNATIONAL LAW WITH RESPECT TO FINNING AND SPINING OF MAKO SHARKS A. Alopias shark harvesting policies are in consonance with its international treaty obligations Alopias has respected its obligations under the CBD and UNCLOS a. Alopias has sovereign rights to exploit its natural resources b. Alopias has adhered to its obligations under CBD c. Alopias has adhered to its obligations under UNCLOS i. Alopias has respected its obligations to conserve natural resources ii. Alopias has respected its obligation to cooperate Alopias has respected its obligations arising under CMS B. Alopias has respected its obligations under customary international law Prohibition of shark finning is not a customary international law a. Regulations prohibiting shark finning are not consistent and uniform Applicant s Preliminaries Page i of xx

3 b. Alternatively, prohibition of shark finning is not supported by opinio juris Alternatively, Alopias shark harvesting policies are consistent with the alleged customary norm a. Alopias domestic laws are consistent with the alleged customary norm b. In any event, the alleged customary norm recognizes economic concerns of developing nations II. RHINCODON HAS VIOLATED INTERNATIONAL LAW BY BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS A. Trade sanctions imposed by Rhincodon are in violation of Article 5 of TARA. 12 B. Trade sanctions imposed by Rhincodon are not justified under Article 15(a) of TARA The policy objective of the measure does not fall within the scope of Article 15(a). 13 a. Humane treatment of animals cannot be a part of public morals of Rhincodon s citizens b. The measure may not be justified on the basis of Alopias conservation obligations under international law i. Conservation related measures cannot be invoked under 15(a) ii. Alternatively, unilateral coercive measure to change Alopias environmental policy is in violation of international law c. In any case, the measure may not extend to fishermen who are not involved in shark finning or spining In the alternative, measures are not necessary to protect the public morals a. The measures adopted do not significantly contribute to the achievement of the policy objective Applicant s Preliminaries Page ii of xx

4 b. Financial assistance to Alopias is a reasonably available alternative measure to achieve the sought policy objective In any event, the ban on imports is not made effective in conjunction with restrictions on domestic production or consumption CONCLUSION AND PRAYER Applicant s Preliminaries Page iii of xx

5 INDEX OF AUTHORITIES TREATIES AND OTHER INTERNATIONAL INSTRUMENTS Bibliographical Information Page No. Agreement to Promote Compliance with International Conservation 11 and Management Measures by Fishing Vessels on the High Seas, Nov. 23, 1993, 2221 U.N.T.S. 91 CMS, Memorandum of Understanding (MoU) on the Conservation of passim Migratory Sharks, March 1, 2010, Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 passim Convention on the Conservation and Management of Fishery Resources 12 in the South-East Atlantic Ocean, Aug. 31, 2002, L234 Off. J. Eur. Communities 40 (2002) Convention on the Conservation and Management of Highly Migratory 12 Fish Stocks in the Western and Central Pacific Ocean, Sept. 5, 2000, 40 I.L.M. 277 (2001) Convention on the Conservation of Migratory Species of Wild passim Animals, June 23, 1979, 1651 U.N.T.S. 333 Applicant s Preliminaries Page iv of xx

6 FAO, International Plan of Action to Prevent, Deter and Eliminate 11 Illegal, Unreported and Unregulated Fishing, (June, 2001), Statute of the International Court of Justice art. 38(1)(b), June 26, 1945, 8 T.S. 993 (1945) The Agreement for the Establishment of the Indian Ocean Tuna 11 Commission, Oct. 5, 1995, L236 Off. J. Eur. Communities 25 (1995) Trade Agreement between Rhincodon and Alopias, Rhincodon-Alopias passim (1999) United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 passim U.N.T.S. 397 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 passim U.N.T.S. 331 U.N. DOCUMENTS Bibliographical Information Page No. Charter of Economic Rights and Duties of States, G.A. Res. 3821, U.N. 16 GAOR, 29th Sess., Supp. No. 31, 50, U.N. Doc. A/9631 (1974) Rep. of the Int l Law Comm n, 56th Sess., Apr. 23-June 1, July 2-Aug. 3 10, 2001, U.N. Doc. A/56/10 Applicant s Preliminaries Page v of xx

7 Resolution on Permanent Sovereignty Over Natural Resources, G.A. 16 Res. 3171, U.N. GAOR, 28th Sess., Supp. No. 30, 52, U.N. Doc. A/9030 (1974) UN Conference on the Human Environment, Stockholm, Swed., June passim 5-16, 1972, Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf.48/14/Rev. 1 (June 16, 1973) United Nations Conference on Environment and Development, Rio de 11 Janiero, Braz., June 3-14, 1992, Agenda 21: Programme of Action for Sustainable Development, UN Doc A/Conf.151/26/Rev.1 (vol. I) (June 14, 1992) United Nations Conference on Environment and Development, Rio de passim Janiero, Braz., June 3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/Conf.151/26/Rev.1 (vol. I) (June 14, 1992) G.A. Res. 46/210, U.N. Doc. A/RES/46/210 (Dec. 20, 1991) 16 G.A. Res. 48/168, U.N. Doc. A/RES/48/168 (Dec. 21, 1993) 16 G.A. Res. 50/96, U.N. Doc. A/RES/50/96 (Dec. 20, 1995) 17 G.A. Res. 52/181, U.N. Doc. A/RES/52/181 (Dec. 18, 1997) 17 G.A. Res. 60/185, U.N. Doc. A/RES/60/185/Add.1 (Dec. 21, 2005) 17 G.A. Res. 62/177, U.N. Doc. A/RES/62/177 (Dec. 18, 2007) 5 Applicant s Preliminaries Page vi of xx

8 G.A. Res. 62/183, U.N. Doc. A/RES/62/183 (Dec. 19, 2007) 17 G.A. Res. 66/156, U.N. Doc. A/RES/66/156 (Dec. 19, 2011) 17 G.A. Res. 66/186, U.N. Doc. A/RES/66/186 (Dec. 22, 2011) 17 G.A. Res. 66/68, U.N. Doc. A/RES/66/68 (Dec. 6, 2011) 5, 11 G.A. Res. 68/71, U.N. Doc. A/RES/68/71 (Dec. 9, 2013) passim JUDICIAL AND ARBITRAL DECISIONS Bibliographical Information Page No. Anglo-Norwegian Fisheries (U.K. v. Nor.), 1951 I.C.J. 117 (Jan. 18) 8 Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), I.C.J. 3 (Feb. 14) Continental Shelf (Libya v. Malta), 1985 I.C.J. 13 (June 3) 8 Military and Paramilitary Activities in and against Nicaragua (Nicar. passim v. U.S.), 1986 I.C.J. 14 (June 27) North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), I.C.J. 3 (Feb. 20) Trail Smelter (U.S. v. Can.), 3 R.I.A.A (1938/1941) 3 Applicant s Preliminaries Page vii of xx

9 WTO/GATT REPORTS Bibliographical Information Page No. Appellate Body Report, Brazil Measures Affecting Imports of passim Retreaded Tyres, WT/DS332/AB/R (Dec. 17, 2007) Appellate Body Report, European Communities Measures passim Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (May 22, 2014) Appellate Body Report, Korea Definitive Safeguard Measure on 15, 19 Certain Dairy Products, WT/DS98/AB/R (Dec. 14, 1999) Appellate Body Report, United States Import Prohibition of Certain 17 Shrimp And Shrimp Products Recourse To Article 21.5 of the DSU By Malaysia, WT/DS58/AB/RW (Oct. 22, 2001) Appellate Body Report, United States Import Prohibition of Certain passim Shrimp and Shrimp Products, WT/DS58/AB/R (Nov. 6, 1998) Appellate Body Report, United States Measures Affecting the Cross- passim Border Supply of Gambling and Betting Services, WT/DS285/AB/R (Apr. 20, 2005) Appellate Body Report, United States Standards for Reformulated 15, 21 and Conventional Gasoline, WT/DS2/AB/R (May 20, 1996) Applicant s Preliminaries Page viii of xx

10 Appellate Body, Canada Measures Affecting the Importation of Milk 16 and Exportation of Dairy Products, WT/DS103/AB/R, WT/DS113/AB/R (Oct. 13, 1999) Panel Report, Brazil Measures Affecting Imports of Retreaded Tyres, passim WT/DS400/R, WT/DS401/R (Nov. 25, 2013) Panel Report, Canada Measures Affecting Exports of Unprocessed 21 Herring and Salmon, L/6268 (Mar. 22, 1988) Panel Report, Dominican Republic Measures Affecting the 13 Importation and Internal Sale of Cigarettes, WT/DS302/R (Nov. 26, 2004) Panel Report, European Communities Measures Prohibiting the passim Importation and Marketing of Seal Products, WT/DS400/R, WT/DS400/R (Nov. 25, 2013) Panel Report, United States Import Prohibition Of Certain Shrimp passim And Shrimp Products Recourse to Article 21.5 by Malaysia, WT/DS58/RW (June 15, 2001) Panel Report, United States Measures Affecting the Cross-Border passim Supply of Gambling and Betting Services, WT/DS285/R, (Apr. 25, 2005) Panel Report, United States Prohibition of Imports of Tuna and Tuna 21 Applicant s Preliminaries Page ix of xx

11 Products, 4.11, L/5198 (Feb. 22, 1982). BOOKS, TREATISES, DIGESTS, AND RESTATEMENTS Bibliographical Information Page No. A. Pellet et al., Droit International Public (2002) 8 Birnie et al., International Law and the Environment (2009) 4 Bradly J. Condon, Environmental Sovereignty and the WTO: Trade 16 Sanctions and International Law (2006) Daniel Bodansky et al., The Oxford Handbook of International 3 Environmental Law (2007) Daniel Imhoff, The CAFO Reader: The Tragedy of Industrial Animal 15 Factories (2010) Ian Brownlie, Principles of Public International Law (2008) 17 James Crawford, Brownlie's Principles of Public International Law 9 (2012) Laura Nielsen, The WTO, Animals and PPMs (2007) 16 Lyle Glowka et al., Guide to the Convention on Biological Diversity 4 (1994) Applicant s Preliminaries Page x of xx

12 Malcolm N. Shaw, International Law (2008) 8 Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights 2 and Duties (2008) Philippe Sands & Jacqueline Peel, Principles of International 3 Environmental Law (2012) T. Grandin & Deesing, Genetic Effects on Behavior During Herding, 15 Handing, and Restraint, Genetics and the Behavior of Domestic Animals (1998) ESSAYS, ARTICLES, AND JOURNALS Bibliographical Information Page No. Andrew N. Porter, Unraveling the Ocean from the Apex Down: The 4 Role of the United States in Overcoming Obstacles to an International Shark Finning Moratorium, 35 Environs: Envtl. L. & Pol'y J. 231 (2011) At Last: EU Parliament Votes for Stronger Shark Finning Ban; 10 Stronger Shark Finning Ban Clears Final Hurdle in EU, (last visited Oct. 6, 2014) Chiyuki Mizukami, Management of Highly Migratory Species and 6 fisheries relations between Japan and South Pacific States, 24 U. Brit. Applicant s Preliminaries Page xi of xx

13 Colum. L. Rev. 127 (1990) Costa Rica bans shark finning, 9 (last visited Oct. 6, 2014) Cyril De Klemm, Migratory Species in International Law, 29 Nat. 2 Resources J. 935 (1989) Duncan French, Developing States and International Environmental 12 Law: The Importance of Differentiated Responsibilities, Int l & Comp. L. Q. 35 (2000) Int l Law Comm n, Commentary on the Draft VCLT, 2 Y.B. Int l. L. 15 Comm n 219 (1966) Kevern Cochrane, A Fishery Manager's Guidebook - Management 5 Measures and Their Application, FAO Fisheries Technical Paper (2002), Lyle Glowka, Complementarities Between the Convention on 7 Migratory Species and the Convention on Biological Diversity, 3.3 J. of Int l Wildlife L. & Pol y 205 (2000) Nicolas F. Diebold, The Morals and Order Exceptions in WTO Law: 18 Balancing the Toothless Tiger and the Undermining Mole, J. Int l Eco. L. 43 (2008) Applicant s Preliminaries Page xii of xx

14 Peter L. Lallas et al., Environmental Protection and International Trade: 17 Toward mutually Supportive Rules and Policies, 16 Harv. Envtl. L. Rev. 271 (1992) Rebecca Quilliam, Shark Finning Banned in NZ waters, (last visited Oct. 6, 2014) Shailvee Sharda, Government issues new guidelines to protect sharks 10 fauna/government-issues-new-guidelines-to-protect- sharks/articleshow/ cms (last visited Oct. 6, 2014) 10 Shark Finning Banned in Eastern Pacific Ocean (last visited Oct. 6, 2014) Steve Charnovitz, Environmental Trade Sanctions and the GATT: An 18 Analysis of the Pelly Amendment on Foreign Environmental Practices, 9 Am. U. J. Int'l L. & Pol'y 751 (1993) Steve Charnovitz, The Moral Exception in Trade Policy, 38 Va. J. Int'l 16 L. 689 (1997) Steve Ercolani, Chile Bans Shark Finning: Congress Unanimous 9 (last visited Oct. 6, 2014) Applicant s Preliminaries Page xiii of xx

15 William T. Burke, The Law of the Sea Convention Provisions on 6 Conditions of Access to Fisheries Subject to National Jurisdiction, 63 Or. L. Rev. 73 (1984) OTHER AUTHORITIES Bibliographical Information Page No. Ban the sale, trade and possession of shark 9 fins, (last visited Oct. 6, 2014) Humane Fishing Act, 2001 passim Humane Society International, National laws, Multilateral Agreements, 9 Regional and Global Regulations on Shark Protection and Shark Finning as of March, 2014, (last visited Oct. 26, 2014) ICCAT, Recommendation by ICCAT Concerning the Conservation of 10 Sharks Caught in Association with Fisheries Managed by ICCAT, ICCAT Recommendation (Oct. 2004) ICCAT, Resolution on the Conservation of Sharks Caught in 10 Association with Fisheries in the Eastern Pacific Ocean, ICCAT Res. C (June 2005) Applicant s Preliminaries Page xiv of xx

16 IUCN, Resolutions and Recommendations, Recommendation of 5 IUCN on a global policy against shark finning (2009) Pew Commission on Industrial Farm Animal Production, Putting Meat 15 on the Table: Industrial Farm Animal Production in America, 2008, NAFO, Conservation & Enforcement Measures art. 17(7), NAFO FC 10 Doc. 11/1, Serial No. N5876 (Dec. 3, 2010) Shark Finning Prohibition Act, 2002 passim U.S. Shark Conservation Act of 2008: Hearing on H.R Before the 4 H. Comm. on House Natural Resources Subcommittee on. Fisheries, Wildlife and Oceans, 110th Cong. (2008) WCPFC, Resolution on Non-Target Fish Species, WCPFC Res (Dec. 16, 2005) WTO, Report of the Committee on Trade and Environment, WT/CTE/1 18 (Nov. 12, 1996) WTO, Report of the General Council to the 1996 Ministerial 18 Conference, WT/MIN/96/2 (Nov. 26, 1996) Applicant s Preliminaries Page xv of xx

17 STATEMENT OF JURISDICTION The Federal States of Alopias and the Republic of Rhincodon submit the following dispute to the International Court of Justice. Pursuant to Article 40, paragraph 1 of the Statute of the International Court of Justice, States may bring cases before the Court by special agreement [Statute of the International Court of Justice, art. 40, T.S. No. 993 (1945)]. On June 16, 2014 the parties signed a special agreement and submitted it to the Registrar of the Court. See Special Agreement Between The Federal States of Alopias and The Republic of Rhincodon for Submission to The International Court of Justice of Differences Between them Concerning Questions Relating to The Protection of Mako Sharks and Trade Restrictions, June 16, 2014 (R. 3). The Registrar addressed notification to the parties on June 23, 2014 (R. 2). Applicant s Preliminaries Page xvi of xx

18 QUESTIONS PRESENTED I. Whether Alopias has violated international law with respect to finning and spining of mako sharks by its nationals within its territorial waters and Exclusive Economic Zone? II. Whether Rhincodon has violated international law by banning the importation of fish and fish products from Alopias? Applicant s Preliminaries Page xvii of xx

19 STATEMENT OF FACTS Background Federal States of Alopias and Republic of Rhincodon are located in Varium Sea Region. Short fin mako sharks and long fin mako sharks are found within the territorial seas and Exclusive Economic Zones [ EEZ ] of Alopias and Rhincodon (R. para. 1). Alopias is a developing nation with agriculture and fishing as its two most significant economic activities. Rhincodon, a developed nation, is Alopias largest trading partner, with approximately 30% of Alopias exports being sent to Rhincodon (R. para. 2). Also, Rhincodon and Alopias have entered into a bilateral trade agreement entitled Trade Agreement between Rhincodon and Alopias [ TARA ] (R. para. 12). Enactment of Legislations prohibiting Finning In 2001, Rhincodon s parliament enacted an act entitled Humane Fishing Act [ HFA ] in order to prohibit the practice of shark finning (R. para. 15). Alopias, pursuant to a negotiation with Rhincodon government, enacted Shark Finning Prohibition Act [ SFPA ] in The Act stated that shark fins could only be landed in Alopias territory if the fins were naturally attached to the shark (R. para. 17). Alopias lack of resources Alopias lacks the required resources to rigorously enforce such prohibition. In pursuance of bolstering its law enforcement efforts, developmental assistance was sought from Rhincodon (R. para. 19). However, Rhincodon declined to provide such aid citing that its domestic laws prohibit it from funding foreign law enforcement agencies (R. para. 20). Practice of spining In 2010, Rhincodon raised concern over a new practice of shark spining occurring within Alopias territory. Shark spining is a practice wherein fins of a shark, instead of being Applicant s Preliminaries Page xviii of xx

20 removed, are left solely attached to the shark's spine (R. para. 22). Pursuant to such concerns Alopias agreed to prosecute any known instances of shark spining (R. para. 23). Orca Vessel Judgment In 2011, criminal charges were brought against the captain of the Alopias fishing vessel Orca for the practice of shark spining. However, the Alopias Trial Court declared that the act of spining was not against the finning prohibition laws of Alopias as the fins were naturally attached to the body of the shark. Subsequently, the Alopias Supreme Court affirmed this judgment (R. para. 24). Government of Rhincodon sent a diplomatic note to the Government of Alopias requesting Alopias to amend its SFPA to expressly include the practice of spining (R. para. 25). Alopias Congress declined to amend the SFPA, as for Alopias, economic development and budget concerns are more pressing priorities (R. para. 26). Imposition of the Trade Sanction In 2014, the Rhincodon Minister of Foreign Affairs announced the imposition of trade sanctions on Alopias fish and fish products until Alopias implemented a program that effectively bans shark finning (R. para. 29). Foreign Minister of Alopias asserted that the ban violated Rhincodon s obligation under TARA. Rhincodon, however, claims that the measure is justified under TARA Article 15(a) (R. para. 31). Submission before International Court of Justice Both the nations having failed to resolve the matter through mediation pursuant to Article 25 of TARA, agreed to submit the matter to the International Court of Justice to resolve the dispute (R. para. 33). Applicant s Preliminaries Page xix of xx

21 SUMMARY OF ARGUMENTS Alopias has sovereign rights to exploit natural resources within its territory and it has exercised these rights in consonance with its obligations under CBD and UNCLOS. Alopias has also respected its obligations under CMS by adopting the fins naturally attached policy under SFPA. Finally, the prohibition of shark finning is not a customary international law as the regulations prohibiting shark finning are neither uniform and nor supported by opinio juris. Alternatively, Alopias shark harvesting policies are consistent with the alleged CIL, which recognizes the economic and budget constraints of developing nations. The imposition of ban on fish and fish products violates Article 5 of TARA of Alopias. The trade sanction is not justified under Article 15 of TARA as Firstly; the policy objective of the measure does not fall within the scope of Article 15(a). Secondly, the measure adopted by Rhincodon is not necessary, as measure does not contribute significantly towards the achievement of policy objective. Alternatively, there existed reasonably available alternative measures, which were less trade restrictive with Rhincodon. Finally, the measure does not satisfy the conditions laid down under the introductory clause to Article 15 and hence is not justified under the general exception clause of TARA. Applicant s Preliminaries Page xx of xx

22 ARGUMENTS I. ALOPIAS HAS NOT VIOLATED INTERNATIONAL LAW WITH RESPECT TO FINNING AND SPINING OF MAKO SHARKS. 1. Alopias and Rhincodon are developing 1 and developed nations 2 respectively and are located in Varium Sea Region [ VSR ]. 3 Longfin mako sharks and the shortfin mako sharks spend part of their life cycles throughout the region, including in Alopias EEZ and territorial sea. 4 Both States, pursuant to their sovereign rights 5 harvest these species The Applicant submits that its shark harvesting policies are in consonance with its treaty obligations [A] and customary international law obligations [B]. A. Alopias shark harvesting policies are in consonance with its international treaty obligations. 3. Pursuant to pacta sunt servanda, every treaty in force is binding upon the parties to it and must be performed by them in good faith. 7 The Applicant submits that it has respected its obligations under CBD 8 and UNCLOS [1]. Further, Alopias has duly fulfilled its obligations 1 R. para R. para R. para R. para United Nations Convention on the Law of the Sea art. 56, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]. 6 R. paras Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT]. 8 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD]. Applicant s Arguments Page 1 of 21

23 under CMS 9 [2]. 1. Alopias has respected its obligations under the CBD and UNCLOS. 4. Alopias has sovereign rights to exploit its natural resources within its territory [a] and has exercised these rights in consonance with its obligations under CBD [b] and UNCLOS [c]. a. Alopias has sovereign rights to exploit its natural resources. 5. States have sovereign rights to exploit their natural resources pursuant to their own environmental policies. 10 Highly Migratory Species [ HMS ], 11 such as mako sharks, 12 come under the successive sovereignty of the States along their migration route and are subject to the legislation of each of these States in succession However, States must ensure that activities in their territory or under their control do 9 Convention on the Conservation of Migratory Species of Wild Animals, June 23, 1979, 1651 U.N.T.S. 333 [hereinafter CMS]. 10 CBD, supra note 8, art. 3; UNCLOS, supra note 5, art 193; UN Conference on the Human Environment, Stockholm, Swed., June 5-16, 1972, Declaration of the United Nations Conference on the Human Environment princ. 21, U.N. Doc. A/Conf.48/14/Rev. 1 (June 16, 1973) [hereinafter Stockholm Declaration]; United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3-14, 1992, Rio Declaration on Environment and Development princ. 2, U.N. Doc. A/CONF.151/26/Rev.1 (vol. I) (June 14, 1992) [hereinafter Rio Declaration]; Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties (2008). 11 UNCLOS, supra note 5, Annex I. 12 Id. 13 UNCLOS, supra note 5, art. 56, 61; See generally Cyril De Klemm, Migratory Species in International Law, 29 Nat. Resources J. 935, (1989). Applicant s Arguments Page 2 of 21

24 not damage other States. 14 Such damage should be significant or substantial 15 and must reflect a real detrimental effect on matters such as human health, industry, property, environment or agriculture in other States for a responsibility to arise In the instant case, studies suggest that the sub-population of these sharks, in VSR, is not declining. 17 Even otherwise, the Record is bereft of facts indicating harm caused to Rhincodon. b. Alopias has adhered to its obligations under CBD. 8. CBD aims at the conservation of biological diversity and the sustainable use of its components. 18 It recognizes that economic and social development is an overriding priority of developing countries. 19 Accordingly, for developing countries, implementation of the Convention is contingent on commitments from developed countries to provide technology and funds Additionally, the substantive provisions of CBD have been qualified by phrases such as as far as possible or in accordance with one s capabilities. 21 The purpose of such qualifiers is to make the level of implementation commensurate to the capacities of each 14 CBD, supra note 8, art. 3; Rio Declaration, supra note 10, princ. 2; Stockholm Declaration, supra note 10, princ. 2; Trail Smelter (U.S. v. Can.), 3 R.I.A.A (1938/1941). 15 Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Dec. 15); Rep. of the Int l Law Comm n, 56th Sess., Apr. 23- June 1, July 2-Aug. 10, 2001, U.N. Doc. A/56/10; See generally Philippe Sands & Jacqueline Peel, Principles of International Environmental Law (2012). 16 Daniel Bodansky et al., The Oxford Handbook of International Environmental Law 535 (2007). 17 Clarification A CBD, supra note 8, art CBD, supra note 8, Pmbl. 20 CBD, supra note 8, art. 20(4). 21 CBD, supra note 8, art Applicant s Arguments Page 3 of 21

25 Party to meet its obligations Developing countries, such as Alopias, lack necessary infrastructure to effectively implement shark conservation measures 23 as such measures necessitate a complex web of officials, enforcement agents, and port-based facilities. 24 Alopias, taking into consideration the lack of resources at its disposal and observing that no assistance is forthcoming 25 requested Rhincodon for development assistance to bolster its efforts in law enforcement. 26 However, Rhincodon disregarding its obligations under CBD 27 denied such aid Nevertheless, consistent with its CBD obligations, Alopias has enacted and enforced the SFPA to the best of its capacity. 29 Thus, Alopias has respected its obligations under CBD. c. Alopias has adhered to its obligations under UNCLOS. 12. The Applicant submits that it has respected its obligations to conserve natural resources [i] and its obligation to cooperate [ii] under UNCLOS. i. Alopias has respected its obligations to conserve natural resources. 22 Lyle Glowka et al., Guide to the Convention on Biological Diversity 4 (1994); Birnie et al., International Law and the Environment (2009). 23 U.S. Shark Conservation Act of 2008: Hearing on H.R Before the H. Comm. on House Natural Resources Subcommittee on. Fisheries, Wildlife and Oceans, 110th Cong. (2008) (Statement of Dr. Rebecca Lent, National Oceanic and Atmospheric Administration U.S. Department of Commerce). 24 Andrew Nowell Porter, Unraveling the Ocean from the Apex Down: The Role of the United States in Overcoming Obstacles to an International Shark Finning Moratorium, 35 Environs: Envtl. L. & Pol'y J. 231, 250 (2011). 25 Clarification A R. para CBD, supra note 8, art. 20(1). 28 R. para R. para. 17. Applicant s Arguments Page 4 of 21

26 13. UNCLOS provides States with sovereign rights, for the purpose of exploiting, conserving and managing living resources within their EEZs. 30 Admittedly, States are to adopt measures to maintain or restore populations of harvested species at levels, which can produce the maximum sustainable yield, taking into consideration any generally recommended international minimum standards However, the abovementioned measures are qualified by economic constraints and other special requirements of developing nations. 32 Further, UNCLOS specifically requires developed States to assist developing States for the protection and preservation of the marine environment by promoting scientific, technical, and other assistance. 33 This is because, for most developing countries, such donor assistance is the only solution for effective implementation of its obligations The Applicant submits that prohibition of shark finning through naturally attached policy is one such international minimum standard, in accordance with G.A. Resolutions 35 and recommendations by IUCN, 36 which has been duly incorporated in its domestic fisheries policy Admittedly, Alopias has failed to rigorously enforce such policies due to lack of 30 UNCLOS, supra note 5, art. 56(1). 31 UNCLOS, supra note 5, art. 61(3). 32 UNCLOS, supra note 5, art. 61(3). 33 UNCLOS, supra note 5, art. 202(a). 34 Kevern Cochrane, A Fishery Manager's Guidebook - Management Measures and Their Application, FAO Fisheries Technical Paper, ch. 8 (2002), 35 G.A. Res. 62/177, 12, U.N. Doc. A/RES/62/177 (Dec. 18, 2007); G.A. Res. 66/68, 15, U.N. Doc. A/RES/66/68 (Dec. 6, 2011); G.A. Res. 68/71, 64, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 36 IUCN, Resolutions and Recommendations, Recommendation of IUCN on a global policy against shark finning, 2 (2009). 37 R. para. 12. Applicant s Arguments Page 5 of 21

27 financial resources. 38 However, such failure, without adequate financial assistance from developed nations is not contrary to its obligations under UNCLOS. ii. Alopias has respected its obligation to cooperate. 17. States are obligated to cooperate with other States of the region with respect to conservation and utilization of HMS. 39 Cooperation means negotiations with other States to establish conservation measures and to allocate catch. 40 Developed countries when cooperating with developing countries should identify their needs and build capacity, including support for monitoring, control, surveillance [ MCS ], and compliance and enforcement systems Moreover, Article 64(1) applies in addition to other provisions. 42 Therefore in the event of failure to arrive at such cooperation, the coastal State retains the authority to decide what conservation measures are to be taken pursuant to its other obligations under the Convention Alopias has fulfilled its obligations to cooperate by negotiating in good faith and thereby enacting the SFPA, Additionally, it agreed to prosecute any known instances of spining, 45 despite the lack of any international norm mandating the same. 38 R. para UNCLOS, supra note 5, art William T. Burke, The Law of the Sea Convention Provisions on Conditions of Access to Fisheries Subject to National Jurisdiction, 63 Or. L. Rev. 73, 108 (1984). 41 G.A. Res. 68/71, 64, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 42 UNCLOS, supra note 5, art Burke, supra note 40, at 108; Chiyuki Mizukami, Management of Highly Migratory Species and fisheries relations between Japan and South Pacific States, 24 U. Brit. Colum. L. Rev. 127, 130 (1990). 44 R. para R. para. 23. Applicant s Arguments Page 6 of 21

28 20. Admittedly, Alopias has refused to amend its Act to include spining, without support from developed countries, as the amendment would not have any practical significance. The failure of negotiations permitted Alopias to implement its own conservation measures within its EEZ. 2. Alopias has respected its obligations arising under CMS. 21. A listing of species under Appendix II of CMS requires range States to enter into agreements with each other for the benefit of the species. 46 Alopias, pursuant to this obligation under the CMS, has signed the CMS Memorandum on Understanding on Sharks [ CMS MoU ]. 47 The Collective Shark Conservation Plan 48 adopted under the CMS MoU instructs the signatories to enact legislation requiring sharks to be stored on board and landed with each fin naturally attached Despite the commitments in MoU being non-legally binding, 50 Alopias has adopted the fins naturally attached policy. 51 Hence, it has respected its obligations under CMS. B. Alopias has respected its obligations under customary international law. 46 CMS, supra note 9, art. II(3)(c), IV(4), V; See generally Lyle Glowka, Complementarities between the Convention on Migratory Species and the Convention on Biological Diversity, 3.3 J. of Int l Wildlife L. & Pol y 205, (2000). 47 CMS, Memorandum of Understanding (MoU) on the Conservation of Migratory Sharks, March 1, 2010, [hereinafter CMS MoU]. 48 CMS, Memorandum of Understanding on the Conservation of Migratory Sharks, Annex 3 Conservation Plan, Sept. 27, 2012, x3_to_mou_conservation_plan_en.pdf. 49 Id CMS MoU, supra note 47, 1(1). 51 R. para. 17. Applicant s Arguments Page 7 of 21

29 23. The Applicant submits that prohibition of shark finning is not a CIL [1]. Alternatively, shark harvesting policies are consistent with the alleged customary norm [2]. 1. Prohibition of shark finning is not a customary international law. 24. To constitute a CIL two elements are essential, namely State practice and opinio juris. 52 The Applicant submits that prohibition of shark finning is not a CIL as regulations prohibiting shark finning are not consistent and uniform [a] and are not supported by opinio juris [b]. a. Regulations prohibiting shark finning are not consistent and uniform. 25. For a new customary rule to be formed, the acts concerned must amount to a settled practice. 53 This Court in Anglo-Norwegian Fisheries 54 case emphasized that some degree of uniformity amongst State practice is essential for a custom to come into existence. 55 The evidence of State practice may be found in administrative acts, legislation, decisions of courts and activities on the international stage The regulations prohibiting shark finning are varied as 7 RFMOs and approximately 52 Statute of the International Court of Justice art. 38(1)(b), June 26, 1945, T.S. 993 (1945); Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, 27 (June 3); North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3, 29 (Feb. 20); Malcolm N. Shaw, International Law 72 (2008). 53 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 207 (June 27) [hereinafter Nicaragua]. 54 Anglo-Norwegian Fisheries (U.K. v. Nor.), 1951 I.C.J. 117 (Jan. 18). 55 Id. at Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, (Feb. 14); A. Pellet et al., Droit International Public 751 (2002). Applicant s Arguments Page 8 of 21

30 18 States adopt Carcass-Fin ratio rule to regulate finning. 57 Whereas, approximately 40 States adopt the naturally attached rule. 58 Thus, establishing that the State practice is neither consistent and nor uniform. b. Alternatively, prohibition of shark finning is not supported by opinio juris. 27. For a CIL to be formed, not only must the acts concerned amount to a settled practice, but also they must be accompanied by the opinio juris. 59 This requirement gets fulfilled when either the States taking such action or other States in a position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it The Applicant submits that the States do not believe that there exists a rule of law mandating them to prohibit finning. For instance, lobbyist NGOs caused Australia, 61 Chile, 62 Costa Rica, 63 Ecuador, 64 Europe, 65 India, 66 New Zealand 67 etcetera to enact domestic 57 Humane Society International, National laws, Multilateral Agreements, Regional and Global Regulations on Shark Protection and Shark Finning as of March, 2014, (last visited Oct. 6, 2014) [hereinafter Finning laws]. 58 Id. 59 Nicaragua, supra note 53, Nicaragua, supra note 53, 108; James Crawford, Brownlie's Principles of Public International Law 25 (2012). 61 Ban the Sale, Trade and Possession of Shark Fins, (last visited Oct. 6, 2014). 62 Steve Ercolani, Chile Bans Shark Finning: Congress Unanimous, (last visited Oct. 6, 2014). 63 Costa Rica bans shark finning, (last visited Oct. 6, 2014). Applicant s Arguments Page 9 of 21

31 legislations that prohibit shark finning. Thus, demonstrating lack of opinio juris. 2. Alternatively, Alopias shark harvesting policies are consistent with the alleged customary norm. a. Alopias domestic laws are consistent with the alleged customary norm. 29. Assuming that through adoption of shark finning prohibition measures by RFMOs 68 and States 69 this practice has become a part of CIL, the Applicant submits that its domestic laws prohibiting shark finning are in consonance with such obligations. 70 Furthermore, shark spining is practically and legally different from shark finning and no international norm prohibits the same. 64 Shark Finning Banned in Eastern Pacific Ocean, (last visited Oct. 6, 2014). 65 At Last: EU Parliament Votes for Stronger Shark Finning Ban; Stronger Shark Finning Ban Clears Final Hurdle in EU, (last visited Oct. 6, 2014). 66 Shailvee Sharda, Government Issues New Guidelines To Protect Sharks, (last visited Oct. 6, 2014). 67 Rebecca Quilliam, Shark Finning Banned in NZ waters, (last visited Oct. 6, 2014). 68 ICCAT, Recommendation by ICCAT Concerning the Conservation of Sharks Caught in Association with Fisheries Managed by ICCAT, ICCAT Recommendation 04-10, 8 (Oct. 2004); ICCAT, Resolution on the Conservation of Sharks Caught in Association with Fisheries in the Eastern Pacific Ocean, ICCAT Res. C (June 2005); NAFO, Conservation & Enforcement Measures art. 17(7), NAFO FC Doc. 11/1, Serial No. N5876 (Dec. 3, 2010); WCPFC, Resolution on Non-Target Fish Species, WCPFC Res (Dec. 16, 2005). 69 Finning laws, supra note R. para. 17. Applicant s Arguments Page 10 of 21

32 30. Shark finning means the practice of removing any of the fins of a shark while at sea and discarding the remainder of the shark at sea. 71 Thus, shark spining cannot be construed as finning of sharks as firstly, shark fins are not removed at sea 72 and secondly, fins remain attached to shark spine in the whole process. 73 Therefore, Alopias shark harvesting policies are consistent with the alleged customary norm. b. In any event, the alleged customary norm recognizes economic concerns of developing nations. 31. In recognition of the limitations suffered by developing countries, various international instruments including International environmental agreements, 74 soft law instruments, 75 UNGA Resolutions 76 and RFMOs, 77 have called for assistance to be given to 71 CMS MoU, supra note 47, art. 3(Q). 72 R. para Id. 74 CBD, supra note 8, art. 20; UNCLOS, supra note 5, art. 207; Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, Chapter VII, Nov. 23, 1993, 2221 U.N.T.S. 91; FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, part V (June, 2001), Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, Nov. 21, 2009, part VI (2009), 75 Rio Declaration, supra note 10, princ. 6, 7; United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3-14, 1992, Agenda 21: Programme of Action for Sustainable Development, UN Doc A/CONF.151/26/Rev.1 (vol. I) (June 14, 1992) [hereinafter Agenda 21]. 76 G.A. Res. 66/68, 30, U.N. Doc. A/RES/66/68 (Dec. 6, 2011); G.A. Res. 68/71, 33, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 77 The Agreement for the Establishment of the Indian Ocean Tuna Commission pmbl., Oct. 5, 1995, L236 Off. J. Eur. Communities 25 (1995); Convention on the Conservation and Management of Highly Migratory Fish Applicant s Arguments Page 11 of 21

33 developing countries. Specifically, developed countries are called on to assist developing countries to improve monitoring and control of fishing activities and the enforcement of fishing regulations, in the territory of which IUU fishing is prevalent It is recognized that developing States have special requirements and pressing socioeconomic concerns and they have neither the resources nor the capabilities to prioritize biodiversity conservation. 79 In this case, Alopias lacks financial resources to implement SFPA, In the absence of donor funding, differential treatment should be accorded to its obligations. II. RHINCODON HAS VIOLATED INTERNATIONAL LAW BY BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS. 33. The Applicant submits that trade sanctions imposed by Rhincodon are in violation of Article 5 of TARA 80 [A] and are not justified under Article 15(a) of TARA [B]. A. Trade sanctions imposed by Rhincodon are in violation of Article 5 of TARA. 34. TARA provides that in the event of a dispute, decisions by GATT and WTO Panels or Appellate Bodies shall be considered subsidiary sources of law in interpreting of terms of the Agreement. 81 Stocks in the Western and Central Pacific Ocean art. 5, Sept. 5, 2000, 40 I.L.M. 277 (2001); Convention on the Conservation and Management of Fishery Resources in the South-East Atlantic Ocean pmbl., Aug. 31, 2002, L234 Off. J. Eur. Communities 40 (2002). 78 Kevern, supra note 34, ch Duncan French, Developing States and International Environmental Law: The Importance of Differentiated Responsibilities, Int l & Comp. L. Q. 35, 35(2000). 80 Trade Agreement between Rhincodon and Alopias art. 5, Alopias-Rhincodon (1999). 81 Id. art. 25(2). Applicant s Arguments Page 12 of 21

34 35. Article 5 of TARA, which corresponds to Article XI:1 of GATT, states that no prohibitions or restrictions (other than duties, taxes, or similar charges) shall be maintained by any Party regarding the importation of any product of any other Party. 82 Consequently, a Party shall not ban the import of any product of the other Party into their markets. 83 Presently, Rhincodon by banning the importation of fish and fish products from Alopias has violated Article 5 of TARA. B. Trade sanctions imposed by Rhincodon are not justified under Article 15(a) of TARA. 36. Rhincodon asserts that the trade sanctions are justified under Article 15 (a) of TARA. 84 The Applicant submits that the measure adopted is not justified under Article 15 (a) of TARA, as the policy objective does not fall within the scope of public morals [1]. Alternatively, the measure is not necessary to protect the public morals [2]. In any event, the ban on import does not fulfill the requirements of the chapeau [3]. 1. The policy objective of the measure does not fall within the scope of Article 15(a). 37. The Applicant submits that humane treatment of animals is not a part of public morals of Rhincodon [a]. Alternative, the measure may not extend to fishermen who are not involved in shark finning or spining [b]. a. Humane treatment of animals cannot be a part of public morals of Rhincodon s 82 Id. art. 5. citizens. 83 Panel Report, Dominican Republic Measures Affecting the Importation and Internal Sale of Cigarettes, 7.261, WT/DS302/R (Nov. 26, 2004); Panel Report, Brazil Measures Affecting Imports of Retreaded Tyres, 7.11, WT/DS400/R, WT/DS401/R (Nov. 25, 2013). 84 R. para. 31. Applicant s Arguments Page 13 of 21

35 38. According to well-established WTO jurisprudence, 85 the question of whether a measure aims to address public morals relating to a particular concern in the society of a regulating party requires an assessment of two issues: first, whether the concern in question indeed exists in that society; and, second, whether such concern falls within the scope of public morals as defined and applied by a regulating party in its territory 86 according to its own systems and scales of values In EC Seal Products, the Panel held that the public concerns about seal welfare constitute a moral issue for EU citizens 88 because it was anchored in the morality of European societies. 89 The Panel to reach this conclusion conducted a thorough analysis of the historical treatment of animal welfare in general in the EU. 90 Similarly, in the instant matter, a thorough analysis of animal welfare in Rhincodon is required in order to assess the legitimacy of public morals claimed by it. 40. In Rhincodon, concentrated animal feeding operations [ CAFOs ] are both common and legal practice. 91 CAFOs are as inhumane and cruel 92 as finning is, 93 as they restrict the 85 Panel Report, United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services, 299, WT/DS285/R, (Apr. 25, 2005) [hereinafter Panel Report, U.S. Gambling]. 86 Id. 87 Panel Report, European Communities Measures Prohibiting the Importation and Marketing of Seal Products, 7.383, WT/DS400/R, WT/DS400/R (Nov. 25, 2013) [hereinafter Panel Report, EC Seal Products]. 88 Id Id Id , Clarification A T. Grandin & Deesing, Genetic Effects on Behavior During Herding, Handing, and Restraint, Genetics and the Behavior of Domestic Animals 113, 144 (1998); Daniel Imhoff, The CAFO Reader: The Tragedy of Industrial Animal Factories (2010). 93 Id. Applicant s Arguments Page 14 of 21

36 animals behavior due to either limited space, manhandling, loading and unloading during transit causing fear, injury etcetera. 94 Considering the inhumane treatment of animals prevalent in Rhincodon, animal welfare concerns, contrary to its claim, are not a part of public morals among its peoples. b. The measure may not be justified on the basis of Alopias conservation obligations under international law. i. Conservation related measures cannot be invoked under 15(a). 41. One of the corollaries of the general rule of interpretation in the VCLT 95 is that interpretation must give meaning and effect to all the terms of a treaty. 96 According to this principle of effectiveness in treaty interpretation, there is restriction upon an interpreter to freely adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility. 97 Thus, an interpretation rendering paragraphs or clauses meaningless or superfluous is to be avoided Consequently, Article 15(a) should be used to determine whether welfare-based law could withstand scrutiny under TARA on their own merits, without connection to their effect 94 Pew Commission on Industrial Farm Animal Production, Putting Meat on the Table: Industrial Farm Animal Production in America, 38, 2008, 95 VCLT, supra note 7, art Int l Law Comm n, Commentary on the draft VCLT, 2 Y.B. Int l. L. Comm n 219 (1966). 97 Appellate Body Report, United States Standards for Reformulated and Conventional Gasoline, 23, WT/DS2/AB/R (May 20, 1996); Appellate Body Report, Korea Definitive Safeguard Measure on Certain Dairy Products, 80 WT/DS98/AB/R (Dec. 14, 1999); Appellate Body, Canada Measures Affecting the Importation of Milk and Exportation of Dairy Products, 133, WT/DS103/AB/R, WT/DS113/AB/R (Oct. 13, 1999). 98 Laura Nielsen, The WTO, Animals and PPMs 233 (2007). Applicant s Arguments Page 15 of 21

37 on public health [15 (b)] or conservation of exhaustible resources [15 (g)]. 99 Therefore, Rhincodon while invoking moral exception can solely rely on the moral concerns regarding inhumane treatment of animals, without relating the same to conservation of resources in 15 (g), as otherwise it will render clause (g) meaningless. ii. Alternatively, unilateral coercive measure to change Alopias environmental policy is in violation of international law. 43. States are bound to conduct their international relations in economic and trade arenas in accordance with the principles of sovereign equality and non-intervention. 100 G.A. Resolutions have repeatedly called on States to avoid using economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights A State cannot take measures, which has an effect on territory of another State unless that State consents 102 as a State s extraterritorial action limits the sovereign rights of other 99 Steve Charnovitz, The Moral Exception in Trade Policy, 38 Va. J. Int'l L. 689, 737 (1997). 100 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Amongst States in Accordance with the Charter of the United Nations art. 1, G.A. Res. 2131, UN GAOR, 20th Session, Supp. No. 14, U.N. Doc. A/6220 (1965); Nicaragua, supra note 53, 202; Bradly J. Condon, Environmental Sovereignty and the WTO: Trade Sanctions and International Law (2006). 101 Charter of Economic Rights and Duties of States, G.A. Res. 3821, U.N. GAOR, 29th Sess., Supp. No. 31, 50, U.N. Doc. A/9631 (1974); Resolution on Permanent Sovereignty Over Natural Resources, G.A. Res. 3171, U.N. GAOR, 28th Sess., Supp. No. 30, 52, U.N. Doc. A/9030 (1974); G.A. Res. 46/210, 3, U.N. Doc. A/RES/46/210 (Dec. 20, 1991); G.A. Res. 48/168, pmbl., U.N. Doc. A/RES/48/168 (Dec. 21, 1993); G.A. Res. 50/96, pmbl., U.N. Doc. A/RES/50/96 (Dec. 20, 1995); G.A. Res. 52/181, pmbl., U.N. Doc. A/RES/52/181 (Dec. 18, 1997); G.A. Res. 60/185, pmbl., U.N. Doc. A/RES/60/185/Add.1 (Dec. 21, 2005); G.A. Res. 62/183, pmbl., U.N. Doc. A/RES/62/183 (Dec. 19, 2007). 102 Ian Brownlie, Principles of Public International Law 309 (2008). Applicant s Arguments Page 16 of 21