NETHERLANDS (APPLICANT) (RESPONDENT) (DEMANDERESSE)

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 RESPONDENT/MÉMORIAL DE LA DÉFENDEUR NINETEENTH ANNUAL STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION

2 TABLE OF CONTENTS TABLE OF CONTENTS... i INDEX OF AUTHORITIES... iv STATEMENT OF JURISDICTION... xv QUESTIONS PRESENTED... xvi STATEMENT OF FACTS... xvii SUMMARY OF ARGUMENTS... xix ARGUMENTS... 1 I. ALOPIAS HAS VIOLATED INTERNATIONAL LAW FOR ITS FAILURE TO PREVENT ITS NATIONALS FROM FINNING AND SPINING MAKO SHARKS... 1 A. Alopias has violated its obligations under treaty law Alopias failed to discharge its obligations under UNCLOS a. Alopias failed to discharge its obligation to protect the marine environment b. Alopias failed to discharge its obligation of conserving living resources within its EEZ c. Alopias failed to discharge its obligation to cooperate with regard to conservation of HMS Alopias failed to discharge its obligations under the CBD a. Alopias failed to discharge its obligation to use biodiversity sustainably a. Alopias has violated CBD by failing to amend its legislation to include spining.. 5 b. Alopias failed to discharge its obligation to collect specie specific data Alopias has violated its obligation under CMS Respondent s Preliminaries Page i of xix

3 4. Alopias, in the present case, cannot justify its failure based on budgetary concerns a. Alopias failed to appropriate the assistance available i. Alopias failed to avail the assistance offered to it by Rhincodon ii. Alopias failed to resort to international mechanisms available for the enforcement of its obligations b. Alternatively, Alopias could have established protected areas B. Alopias has violated its obligations under CIL Alopias failed to adopt a precautionary approach with respect to spining Alopias violated CIL by failing to prohibit fisheries targeting sharks solely for their fins a. There exists extensive State practice prohibiting fisheries targeting sharks solely for their fins b. There exist opinio juris supporting such State practice II. RHINCODON HAS NOT VIOLATED INTERNATIONAL LAW BY BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS A. Measures adopted by Rhincodon are justified under Article 15(a) of TARA The Measure adopted is justified under Article 15(a) a. The policy objective of the measure falls within the scope of Article 15(a) i. Rhincodon aims to address the moral concern of its citizens through adoption of such measures ii. There exist moral concerns for sharks despite existence of CAFOs b. Rhincodon has sufficient nexus to adopt such measure i. Rhincodon has territorial nexus to adopt such measure ii. Alternatively, Rhincodon has legal nexus to adopt such measures Respondent s Preliminaries Page ii of xix

4 c. Measures are necessary to protect the public morals i. The measures adopted further the importance of the values sought through the policy objective ii. The measure contributes to the achievement of the policy objective iii. There exists no reasonably available alternative measure The ban on imports is made effective in conjunction with restrictions on domestic production or consumption B. Alternatively, the obligations under CBD will prevail over the obligations arising from TARA CONCLUSION AND PRAYER Respondent s Preliminaries Page iii of xix

5 INDEX OF AUTHORITIES TREATIES AND OTHER INTERNATIONAL INSTRUMENTS Bibliographical Information Page No. Convention for the Protection of the Marine Environment of the North-East 10 Atlantic, Sept. 22, 1992, 32 I.L.M Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 passim Convention on the Conservation of Migratory Species of Wild Animals, June passim 23, 1979, 1651 U.N.T.S. 333 CMS, Memorandum of Understanding (MoU) on the Conservation of passim Migratory Sharks, March 1, 2010, FAO, International Plan of Action for the Conservation and Management of 6 Sharks (1999), FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, 7 Unreported and Unregulated Fishing (June, 2001), Instrument for the establishment of the Restructured Global Environment 9 Facility, Geneva, Mar. 16th, 1994, 33 I.L.M Respondent s Preliminaries Page iv of xix

6 Paris Convention for the Protection of the Marine Environment of the 10 Northeast Atlantic, 32 I.L.M Statute of the International Court of Justice, Jun. 26, 1945, Stat. 1055, T.S. 10 No. 993 (1945) 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 United Nations Framework Convention on Climate Change, Rio de Janeiro, 11 May 9, 1992, 31 I.L.M. 849 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S U.N. DOCUMENTS Bibliographical Information Page No. UN Conference on the Human Environment, Stockholm, Swed., June 5-16, passim 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 passim Respondent s Preliminaries Page v of xix

7 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. 56/13, U.N. Doc. A/RES/56/13 (Dec. 13, 2001) 11 G.A. Res. 66/68, U.N. Doc. A/RES/66/68 (Dec. 6, 2011) 13 G.A. Res. 68/71, U.N. Doc. A/RES/68/71 (Dec. 9, 2013) 7, 5, 13 JUDICIAL AND ARBITRAL DECISIONS Bibliographical Information Page No. Continental Shelf (Libya v. Malta), 1985 I.C.J. 13 (June 3) 10 Legal Consequences for States of the Continued Presence of South Africa in 18 Namibia, Advisory Opinion, 1971 I.C.J. 31 (June 21) Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. passim U.S.), 1986 I.C.J. 14 (June 27) Request for an Examination of the Situation in Accordance with Paragraph of the Court's judgment of 20 December 1974 in Nuclear Tests (N.Z. v France), 1995 I.C.J. 288 (Sept. 22) Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), 27 August 1999, 2, 11 Requests for Provisional Measures, ITLOS Rep Respondent s Preliminaries Page vi of xix

8 WTO/GATT REPORTS Bibliographical Information Page No. Appellate Body Report, Brazil Measures Affecting Imports of Retreaded passim Tyres, WT/DS332/AB/R (Dec. 17, 2007) Appellate Body Report, European Communities Measures Affecting 14 Asbestos and Asbestos Containing Products, WT/DS135/AB/R (Apr. 5, 2001) Appellate Body Report, European Communities Measures Prohibiting the passim Importation and Marketing of Seal Products, WT/DS400/AB/R, WT/DS401/AB/R (May 22, 2014) Appellate Body Report, Korea - Measures Affecting Imports of Fresh, 19 Chilled and Frozen Beef, WT/DS l61/ab/r (Dec. 11, 2000) Appellate Body Report, United States Import Prohibition of Certain Shrimp passim and Shrimp Products, WT/DS58/AB/R (Nov. 6, 1998) Appellate Body Report, United States Measures Affecting the Cross-Border passim Supply of Gambling and Betting Services, WT/DS285/AB/R (Apr. 20, 2005) Appellate Body Report, United States Measures Affecting the Production 19 and Sale of Clove Cigarettes, WT/DS406/AB/R (Apr. 24, 2012) Respondent s Preliminaries Page vii of xix

9 Panel Report, Canada Measures Affecting Exports of Unprocessed Herring 22 and Salmon, L/6268 (Mar. 22, 1988) Panel Report, Canada Measures Relating to Exports of Wheat and 15 Treatment of Imported Grain, WT/DS276/R (Sep. 27, 2004) Panel Report, China Measures Affecting Trading Rights and Distribution passim Services for Certain Publications and Audiovisual Entertainment Products, WT/DS363/R (Aug. 12, 2009) Panel Report, Thailand Restrictions on Importation of and Internal Taxes 21 on Cigarettes, DS10/R-37S/200 (Nov. 7, 1990) Panel Report, United States Measures Affecting the Cross-Border Supply of passim Gambling and Betting Services, WT/DS285/R (Apr. 25, 2005) BOOKS, TREATISES, DIGESTS, AND RESTATEMENTS Bibliographical Information Page No. A. Arluke & C.R Sanders, Regarding Animals (1996) 17 Birnie et al., International Law and the Environment (2009) 4 Bradly J. Condon, Environmental Sovereignty and the WTO: Trade 18, 21 Sanctions and International Law (2006) Respondent s Preliminaries Page viii of xix

10 R. R. Churchill & A. V. Lowe, The Law of the Sea (1999) 3 Dinah L. Shelton, Comments on the Normative challenge of environmental 11 soft law, in The Transformation of International Environmental Law (Yann Kerbrat et al. ed., 2011) J. C. Carrier et al., Biology of Sharks and their Relatives (2004) 3 James Crawford, Brownlie's Principles of Public International Law (2012) 11 Malcolm N. Shaw, International Law (2008) 12 Mark E. Villiger, Customary International Law and Treaties: A Study of 12 Their Interactions and Interrelations, With Special Consideration of the 1969 Vienna Convention on the Law of Treaties (1985) Merry D. Camhi et al., Sharks of the Open Ocean: Biology, Fisheries and 5 Conservation (2009) Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and 2 Duties (2008) P. Sandøe & S.B. Christiansen, Ethics of Animal Use (2009) 17 Philippe Sands & Jacqueline Peele, Principles of International Environmental 2 Law (2012) Simon Marr, The Precautionary Principle in the Law of the Sea (2003) 11 Respondent s Preliminaries Page ix of xix

11 ESSAYS, ARTICLES, AND JOURNALS Bibliographical Information Page No. Andrew S. Brierley, Fisheries Ecology: Hunger for Shark Fin soup drives 2 Clam Chowder off the menu, 17 Current Biology R555 (2007) Camillo Catarci, World markets and Industry of Selected Commercially- 3 Exploited Aquatic Species with an International Conservation Profile, FAO fisheries circular (2004) Fred L. Morrison, Legal Issues in the Nicaragua Opinion, 8 Am. J. Int l Law (1987) G. M. S. Vianna et al., Wanted dead or alive? The relative value of reef 9 sharks as a fishery and an ecotourism asset in Palau, Austl. Inst. Marine Sci., Uni. West. Austl. (2010) J. D. Stevens et al., The Effects of Fishing on Sharks, Rays, and Chimaeras 5 (chondrichthyans), and the Implications for Marine Ecosystems, 57.3 I.C.E.S. J. Marine Sci.: Journal du Conseil 476 (2000) J. D. Stevens, Observations on Reproduction in the Shortfin Mako, Isurus 3 oxyrinchus, Copeia 126 (1983) Respondent s Preliminaries Page x of xix

12 James A. Estes et al., Killer Whale Predation on Sea Otters Linking Oceanic 5 and Near Shore Ecosystems, Sci. 473 (1998) Jennifer Jacquet et al., In hot soup: Sharks captured in Ecuador's waters, Env l Sci. 269 (2008) Jordi Bascompte et al., Interaction Strength Combinations and the 5 Overfishing of a Marine Food Web, Proc. of the Nat l Acad. of Sci. U.S.A (2005) N. R. Hareide et al., European Shark Fisheries: A Preliminary Investigation 3 into Fisheries, Conversion Factors, Trade Products, Markets and Management Measures, Eur. Elasmobranch Ass n, 2 (2007) Neil Hammerschlag et al., Global Shark Currency: The Distribution, 10 Frequency, and Economic Value of Shark Ecotourism, 14.8 Current Issues in Tourism 797 (2011) Nicholas K. Dulvy et al., Extinction Risk and Conservation of the World s 3 Sharks and Rays, 3 Elife (2014) Owen McIntyre & Thomas Mosdale, The Precautionary Principle as a Norm 11 of Customary International Law, 6 J. Envtl. L. 221 (1997) Ransom A. Myers et al., Cascading effects of the Loss of Apex Predatory 5 Sharks from a Coastal Ocean, Sci (2007) Respondent s Preliminaries Page xi of xix

13 Shelley Clarke et al., Shark fins in Europe: Implications for reforming the EU 6 finning ban, IUCN Shark Specialist Group (2010), eforming_the_eu_finning_ban.pdf OTHER AUTHORITIES Bibliographical Information Page No. Convention on the Conservation of Antarctic Marine Living Resources, 12 Conservation of Sharks, Conservation Measure (2006) Fifth Ordinary Meeting of the Conference of the Parties to the Convention on 4 Biological Diversity, May 15 May 26, 2000, Nairobi, Kenya, May 15 May 26, Decision V/6, para. 2 (2000) Fourth Ordinary Meeting of the Conference of the Parties to the Convention 8 on Biological Diversity, Bratislava, Slovakia, May 4 May 15, 1998, Decision IV/10, (1998) G.M. Cailliet et al., Isurus oxyrinchus, The IUCN Red List of Threatened 1 Species, Version (2009), General Fisheries Commission of the Mediterranean, Recommendation on 12 fisheries management measures for conservation of sharks and rays in the Respondent s Preliminaries Page xii of xix

14 GFCM area, GFCM/36/2012/3 (2012) Humane Fishing Act, 2001 passim Humane Society International, National laws, multi-lateral agreements, regional and global regulations on shark protection and shark finning as of March, 2014, Humane Society International, Shark finning, 17 ICCAT, Recommendation by ICCAT Concerning the Conservation of Sharks 11 Caught in Association with Fisheries Managed by ICCAT, ICCAT Recommendation (Oct. 2004) M.B Reardon et al., Isurus paucus, The IUCN Red List of Threatened 1 Species, Version (2006), N.Z., Regulations to eliminate shark finning in New Zealand fisheries: 8 Regulatory Impact Statement (July 2014), NAFO, Conservation & Enforcement Measures, NAFO FC Doc. 11/1, Serial 12 No. N5876 (Dec. 3, 2010) Shark Finning Prohibition Act, 2002 passim S.M Fowler et al., IUCN Shark Specialist Group Finning Position Statement, 2 Respondent s Preliminaries Page xiii of xix

15 (2002), Southeast Atlantic Fisheries Commission, Conservation Measure 04/06 on 12 the Conservation of Sharks Caught in Association with Fisheries Managed by SEAFO (Oct. 4, 2006) The Western and Central Pacific Fisheries Commission, Resolution on Non- 12 Target Fish Species, WCPFC Res (Dec. 16, 2005) Third Ordinary Meeting of the Conference of the Parties to the Convention 9 on Biological Diversity, Nov. 4 -Nov. 15, 1996, Buenos Aires, Arg., Decision III/21 (1996) World Bank, Res. N. 91-5, Global Environment Facility, 1991, 30 I.L.M Respondent s Preliminaries Page xiv of xix

16 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. 3-4). The Registrar addressed notification to the parties on June 23, 2014 (R. 2). Respondent s Preliminaries Page xv of xix

17 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? Respondent s Preliminaries Page xvi of xix

18 STATEMENT OF FACTS Background Federal states of Alopias and Republic of Rhincodon are located in Varium Sea Region. 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 significant economic activities. 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 enacted the Humane Fishing Act [ HFA ] in order to prohibit the practice of shark finning (R. para. 15). In 2002, pursuant to negotiations with Rhincodon, Alopias enacted the Shark Finning Prohibition Act [ SFPA ] to ensure that the shark fins landed in its territory were naturally attached to the shark (R. para. 17). Assistance for enforcement of SFPA Alopias insisted that it lacks resources to rigorously enforce the prohibition of shark finning. In pursuance of bolstering its law enforcement efforts, Alopias sought funding for its law enforcement agency (R. para. 19). However, Rhincodon is prohibited, under its domestic laws, from funding foreign law enforcement agencies and therefore declined (R. para. 20). However, educational programs were offered to modify the actions of the Alopias fishermen. Shark spining In 2010, Rhincodon raised concerns over a new practice of shark spining occurring within Alopias territory. Shark spining involves leaving the fins of a shark attached to the Respondent s Preliminaries Page xvii of xix

19 shark's spine while discarding the rest of the carcass (R. para. 22). The Alopias Supreme Court in 2012 held that spining is not prohibited under Alopias domestic laws (R. para. 24). Alopias failure to amend SFPA Rhincodon requested Alopias to amend its SFPA to expressly include the practice of spining (R. para. 25). Alopias declined to amend the SFPA citing economic development and budget concerns as more pressing priorities (R. para. 26). In the year 2014, Rhincodon imposed trade sanctions to protect its public morals pursuant to Article 15 (a) of TARA, on Alopias fish and fish products until Alopias implemented a program that effectively bans shark finning (R. para. 29) Submission before International Court of Justice Both the nations having failed to resolve the matter through mediation pursuant to TARA Article 25, agreed to submit the matter to the International Court of Justice to resolve the dispute (R. para. 33). Respondent s Preliminaries Page xviii of xix

20 SUMMARY OF ARGUMENTS Alopias has failed to abide by its obligations under UNCLOS, CBD, CMS and customary international law by failing to prohibit fisheries that target sharks solely for the purpose of harvesting shark fins. The practice is wasteful and unsustainable and Alopias cannot justify its failure citing economic constraints. Alopias by failing to prohibit the same has demonstrated a lack of concern towards conservation of marine biodiversity. Rhincodon has not violated TARA. The practice of finning and spining is inhumane and is commonly practiced by the fishermen in Alopias. Such practices are against the public morals of Rhincodon. Measures to protect public morals have been recognized as an exception to the general rule of prohibition of trade barriers under TARA. Respondent s Preliminaries Page xix of xix

21 ARGUMENTS I. ALOPIAS HAS VIOLATED INTERNATIONAL LAW FOR ITS FAILURE TO PREVENT ITS NATIONALS FROM FINNING AND SPINING MAKO SHARKS. 1. The longfin mako shark and the shortfin mako shark are highly migratory species [ HMS ] 1 and their range includes the Varium Sea region [ VSR ]. 2 Regardless of their globally vulnerable status, 3 nationals of Alopias are involved in finning and spining The Respondent submits that Alopias failure to prevent shark finning and spining violates its obligations under treaty law [A] and customary international law [ CIL ] [B]. A. Alopias has violated its obligations under treaty law. 3. Pursuant to pacta sunt servanda, every treaty is binding upon the parties and must be performed in good faith. 5 Alopias failed to discharge its obligations under UNCLOS 6 [1], CBD 7 [2] and CMS 8 [3]. Also, Alopias cannot justify its failure based on economic constraints [4]. 1 United Nations Convention on the Law of the Sea annex I, Dec. 10, 1982, 1833 U.N.T.S. 397 [hereinafter UNCLOS]; Convention on the Conservation of Migratory Species of Wild Animals app. II, June 23, 1979, 1651 U.N.T.S. 333 [hereinafter CMS]. 2 R. para G.M. Cailliet et al., Isurus oxyrinchus, The IUCN Red List of Threatened Species, Version (2009), M.B Reardon et al., Isurus paucus, The IUCN Red List of Threatened Species, Version (2006), 4 R. para Vienna Convention on the Law of Treaties art. 26, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter VCLT]. 6 UNCLOS, supra note 1. 7 Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79 [hereinafter CBD]. 8 CMS, supra note 1. Respondent s Arguments Page 1 of 23

22 1. Alopias failed to discharge its obligations under UNCLOS. 4. Alopias failed to discharge its obligations to protect the marine environment [a] and to conserve living resources within its EEZ [b]. Further, it failed to cooperate with regard to the conservation of HMS [c]. a. Alopias failed to discharge its obligation to protect the marine environment. 5. States have a duty to protect and preserve the marine environment. 9 Such duty, 10 inter alia includes the protection of marine living resources. 11 In the instant case, Alopias has failed to prevent finning, disregarding the consensus amongst marine biologists, that the disproportionate harvesting of sharks has far-reaching effects, well beyond the survival of the species themselves. 12 Therefore, Alopias failed to discharge its obligations to protect the marine environment. b. Alopias failed to discharge its obligation of conserving living resources within its EEZ. 9 UNCLOS, supra note 1, art UNCLOS, supra note 1, art Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), Case no. 3 and 4, Order for Provisional Measures, Aug. 27, 1999, 32 I.L.M. 1624, 70; Nico Schrijver, Sovereignty Over Natural Resources: Balancing Rights and Duties 19 (2008); Philippe Sands & Jacqueline Peele, Principles of International Environmental Law 350 (2012). 12 S. M. Fowler et al., IUCN Shark Specialist Group Finning Position Statement, (2002), [hereinafter IUCN Finning Position Statement]; Andrew S. Brierley, Fisheries Ecology: Hunger for Shark fin soup Drives clam Chowder off the Menu, 17 Current Biology R555, R 557 (2007). Respondent s Arguments Page 2 of 23

23 6. Sovereign rights of States for the management of living resources within their EEZ 13 are subject to an obligation to ensure that these resources are not endangered by overexploitation The IUCN lists mako sharks as species, which are threatened with extinction. 15 Their slow growth and maturation, long reproductive cycles, 16 low fecundity, long life spans 17 combined with the continuous practice of finning, lead to a high and unsustainable exploitation rate. 18 Alopias, by failing to prevent the overexploitation of mako sharks, has violated its obligations under UNCLOS. c. Alopias failed to discharge its obligation to cooperate with regard to conservation of HMS. 8. States are obligated to cooperate with other States of the region for the conservation and utilization of HMS 19 such as mako sharks. 20 Rhincodon 21 and other nations in VSR UNCLOS, supra note 1, art. 56(1). 14 UNCLOS, supra note 1, art. 61(2). 15 IUCN, supra note J. D. Stevens, Observations on Reproduction in the shortfin mako, Isurus oxyrinchus, Copeia 126, 130 (1983). 17 J. C. Carrier et al., Biology of Sharks and their Relatives 130 (2004); Nicholas K. Dulvy et al., Extinction Risk and Conservation of the World s Sharks and Rays, 3 Elife, 6 (2014). 18 N. R. Hareide et al., European Shark Fisheries: A Preliminary Investigation into Fisheries, Conversion Factors, Trade Products, Markets and Management Measures, Eur. Elasmobranch Ass n, 2 (2007); Camillo Catarci, World Markets and Industry of Selected Commercially-Exploited Aquatic Species with an International Conservation Profile, FAO fisheries circular, 990 (2004). 19 UNCLOS, supra note 1, art. 64; R. R. Churchill & A. V. Lowe, The Law of the Sea 311 (1999). 20 UNCLOS, supra note 1, annex I. 21 R. para Clarifications A47. Respondent s Arguments Page 3 of 23

24 have cooperated in order to ensure conservation of these shared living resources. However, Alopias by not prohibiting finning has disregarded this obligation to cooperate. Consequently, rendering the measures taken by Rhincodon 23 ineffective. 2. Alopias failed to discharge its obligations under the CBD. 9. The provisions of the CBD extend to marine biodiversity and are not overridden by UNCLOS as long as they are consistent with the general principles and the objectives of UNCLOS The Respondent submits that Alopias failed to discharge its obligation under the CBD to use biodiversity sustainably [a]. Further, it failed to discharge its obligations under the CBD by not amending its legislation [b] and by failing to collect specie-specific catch data [c]. a. Alopias failed to discharge its obligation to use biodiversity sustainably. 11. CBD ensures sustainable use of biological diversity 25 and recognizes that conservation of biodiversity is a common concern of mankind. 26 State Parties to the CBD recognize the ecosystem approach for the management of living resources to promote sustainable use Removal of apex predators such as the mako sharks has a profound impact on marine 23 Humane Fishing Act, CBD, supra note 7, art. 22; P. W. Birnie et al., International Law and the Environment 750 (2009). 25 CBD, supra note 7, art CBD, supra note 7, pmbl. para Fifth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, May 15 May 26, 2000, Nairobi, Kenya, May 15 May 26, Decision V/6, para. 2 (2000). Respondent s Arguments Page 4 of 23

25 ecosystems; 28 one study suggested that the biomass of some prey species increased threefold after disproportionate harvesting of sharks. 29 Another study affirmed that overharvesting of sharks caused degradation of coral reefs In this case, Alopias nationals involvement in spining and finning 31 amounts to a failure to use the components of biodiversity sustainably. a. Alopias has violated CBD by failing to amend its legislation to include spining. 14. CBD obligates States to amend their existing strategies to comply with the measures set under the convention. 32 The Respondent submits that spining is legally equivalent to finning, as both the methods target sharks solely for their fins. 33 It is equally unsustainable as much of the shark is wasted, posing fewer hold space constraints upon vessels for the storage of their catch than do vessels that retain the carcass. 34 Consequently, these practices enable fishing vessels to overexploit the threatened mako sharks Merry D. Camhi et al., Sharks of the Open Ocean: Biology, Fisheries and Conservation 8 (2009); See generally J. D. Stevens et al., The Effects of Fishing on Sharks, Rays, and Chimaeras (Chondrichthyans), and the Implications for Marine Ecosystems, 57.3 I.C.E.S. J. Marine Sci.: Journal du Conseil 476 (2000); Ransom A. Myers et al., Cascading Effects of the Loss of Apex Predatory Sharks from a Coastal Ocean, Sci (2007). 29 Id. 30 Jordi Bascompte et al., Interaction Strength Combinations and the Overfishing of a Marine Food Web, Proc. of the Nat l Acad. of Sci. U.S.A. 5443, 5447 (2005). 31 R. para CBD, supra note 7, art. 6(b). 33 G.A. Res. 68/71, 15, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 34 IUCN Finning Position Statement, supra note 12, Id. Respondent s Arguments Page 5 of 23

26 15. Despite awareness of this practice, Alopias failed to prohibit it through an amendment and has thus violated its obligations under the CBD. b. Alopias failed to discharge its obligation to collect specie specific data. 16. A common method of fisheries stock assessment and management is to fit the population model to the abundance and catch data in order to ascertain, what level of catch is sustainable 36 and whether catches need to be reduced to allow the population to rebuild to a healthy level The identification of components of biological diversity is important for its conservation and sustainable use, 38 particularly of HMS, 39 as a proper conservation strategy requires the collection of species-specific catch information. 40 However, shark finning makes catch monitoring difficult because shark bodies are not present to be counted when only fins are landed. 41 The resulting lack of accurate catch data renders shark fishery management troublesome, because fishing pressure is commonly underestimated Alopias, by permitting spining 43 and failing to enforce shark finning prohibition, 44 has 36 Merry D. Camhi et al., Sharks of the Open Ocean: Biology, Fisheries, and Conservation 13 (2008). 37 Id. at CBD, supra note 7, art. 7(a). 39 CBD, supra note 7, art. 7(b). 40 FAO, International Plan of Action for the Conservation and Management of Sharks, para. 22, (1999) Shelley Clarke et al., Shark fins in Europe: Implications for reforming the EU finning ban, IUCN Shark Specialist Group (2010), 41 Id. 42 Jennifer Jacquet et al., In hot soup: Sharks Captured in Ecuador's waters, 5.4 Env l Sci. 269, 280 (2008). 43 R. para R. para. 19. Respondent s Arguments Page 6 of 23

27 failed to collect the catch data. Such practices render the specie specific information underreported 45 and thereby causes the assessment of the present vulnerability of mako sharks unreliable, as is the assessment made in the present case. 46 Thus, by not collecting specie-specific data, Alopias has violated its obligations under CBD. 3. Alopias has violated its obligation under CMS. 19. CMS recognizes that the conservation of migratory species requires the concerted action of the Range States. 47 Species having an unfavorable conservation status are listed in Appendix II 48 thereby requiring range states to enter into agreements Pursuant to this, CMS MoU on Sharks was adopted, 50 which mandates the prohibition on finning. 51 Thus, Alopias by not effectively enforcing shark-finning prohibition, failed to discharge its obligation under CMS MoU. 4. Alopias, in the present case, cannot justify its failure based on budgetary concerns. 21. Alopias has failed to avail the available assistance [a]. Alternatively, Alopias could have established protected areas thereby generating sufficient resources [b]. 45 FAO, International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing, para 3.2, (June, 2001), 46 Clarification A CMS, supra note 1, pmbl. para CMS, supra note 1, art. IV(1)(2). 49 CMS, supra note 1, art. IV(3), V. 50 CMS, Memorandum of Understanding (MoU) on the Conservation of Migratory Sharks, March 1, 2010, 51 G.A. Res. 68/71, 15,U.N. Doc. A/RES/68/71 (Dec. 9, 2013). Respondent s Arguments Page 7 of 23

28 a. Alopias failed to appropriate the assistance available. 22. Enforcing the naturally attached policy is the least expensive means to prevent finning 52 as compliance is confirmed by mere physical inspection 53 and does not require offshore surveillance which developing states generally lack. 54 A relatively modest increase in expenditure over monitoring and surveillance can substantially improve compliance. 55 The same can be recovered by states through landings fees, license fees and other levies as payable by legal fishing operators However, Alopias failed to enforce the SFPA, demonstrating lack of conviction. Alternatively, the Respondent submits that there existed other alternatives, which Alopias failed to avail. i. Alopias failed to avail the assistance offered to it by Rhincodon. 24. CBD obligates international cooperation in developing educational programs 57 to promote the conservation of biological diversity. 58 Rhincodon offered educational programs to Alopias, 59 which it rejected, thereby failing to avail the utility of such an offer. 52 IUCN Finning Position Statement, supra note 12, N.Z., Regulations to Eliminate Shark Finning in New Zealand fisheries: Regulatory Impact Statement (July 2014), 54 MRAG, Review of Impacts of Illegal, Unreported and Unregulated Fishing on Developing Countries, 99 (July, 2005). 55 Id. at Id. at CBD, supra note 7, art. 13(2); Fourth Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, Bratislava, Slovakia, May 4 May 15, 1998, Decision IV/10, paras. 1(c), 8(2) (1998). 58 CBD, supra note 7, art. 13(1). 59 R. para. 19. Respondent s Arguments Page 8 of 23

29 ii. Alopias failed to resort to international mechanisms available for the enforcement of its obligations. 25. CBD, through its interim financial mechanism, 60 helps developing nations to enforce or fulfill their environmental obligations. 61 The Global Environment Facility [ GEF ] was set up to meet the costs of measures that benefit the global environment but would not be otherwise undertaken because they entail additional financial burden for developing countries. 62 Pursuant to Rhincodon s obligation under CBD, 63 it has contributed USD 607 million to the GEF. However, Alopias never tried to avail the help from the facility. b. Alternatively, Alopias could have established protected areas. 26. States parties to CBD are obligated to establish a system of protected areas to conserve biological diversity. 64 Moreover, CBD recognizes the adoption of economically sound measures that act as incentives for conservation For instance, the establishment of Palau s shark sanctuary contributes approximately USD 18 million annually to Palau s economy, being equivalent to 8% of GDP. 66 Since many shark species are long-lived, these natural resources may accrue revenue over extended 60 CBD, supra note 7, art See generally Third Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity, Nov. 4 - Nov. 15, 1996, Buenos Aires, Arg., Decision III/21 (1996). 62 World Bank, Res. N. 91-5, Global Environment Facility, 1991, 30 I.L.M. 1735; Instrument for the establishment of the Restructured Global Environment Facility, Geneva, Mar. 16th, 1994, 33 I.L.M CBD, supra note 7, art. 20(2). 64 CBD, supra note 7, art. 8(1). 65 CBD, supra note 7, art G. M. S Vianna et al., Wanted dead or alive? The relative value of reef sharks as a fishery and an ecotourism asset in Palau, Austl. Inst. Marine Sci., Uni. West. Austl., 8 (2010). Respondent s Arguments Page 9 of 23

30 periods of time, thus offering long lasting potential benefits to local economies Presently, Alopias failure to adopt such incentive generating mechanisms, demonstrates lack of good faith in performing its treaty obligations. law. B. Alopias has violated its obligations under customary international 29. State practice and opinio juris constitute CIL. 68 Alopias has violated CIL, by failing to adopt a precautionary approach with respect to spining [1] and by not prohibiting fisheries targeting sharks solely for their fins [2]. 1. Alopias failed to adopt a precautionary approach with respect to spining. 30. Where there are threats of serious or irreversible damage, the precautionary principle recommends that lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation. 69 Concurrence of state practice 70 with opinio 67 Neil Hammerschlag et al., Global Shark Currency: The Distribution, Frequency, and Economic Value of Shark Ecotourism, 14.8 Current Issues in Tourism 797, 809 (2011). 68 Statute of the International Court of Justice art. 38(1)(b), Jun. 26, 1945, Stat. 1055, T.S. No. 993 (1945); Continental Shelf (Libya v. Malta), 1985 I.C.J. 13, 27 (June 3); Military and Paramilitary Activities In and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 183 (June 27) [hereinafter Nicaragua]. 69 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]. 70 Paris Convention for the Protection of the Marine Environment of the Northeast Atlantic art. 3 (2), 32 I.L.M. 1068; United Nations Framework Convention on Climate Change art. 3(3), Rio de Janeiro, May 9, 1992, 31 Respondent s Arguments Page 10 of 23

31 juris 71 signifies that this principle is a part of CIL as is also indicated by international tribunals Here, Alopias failed to adopt a precautionary approach by permitting spining, thereby violating its obligations under CIL. 2. Alopias violated CIL by failing to prohibit fisheries targeting sharks solely for their fins. a. There exists extensive State practice prohibiting fisheries targeting sharks solely for their fins 32. For a rule to be established as CIL the conduct of States should be consistent. 73 A Soft law norm may become hard law through adoption by States in their domestic law Regional fisheries management organizations, including ICCAT, 75 GFMC, 76 I.L.M. 849; Convention for the Protection of the Marine Environment of the North-East Atlantic art. 2(2)(b), Sept. 22, 1992, 32 I.L.M Rio Declaration, supra note 69, princ. 15; G.A. Res. 56/13, U.N. Doc. A/RES/56/13 (Dec. 13, 2001). 72 Southern Bluefin Tuna (N.Z. v. Japan; Austl. v. Japan), 27 August 1999, Requests for Provisional Measures, ITLOS Rep. 1999, 280, 77, 79, 80; Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's judgment of 20 December 1974 in Nuclear Tests (N.Z. v France), 1995 I.C.J. 288, 378 (Sept. 22) (Dissenting opinion of Judge Koroma); See generally Simon Marr, The Precautionary Principle in the Law of the Sea (2003); Owen McIntyre & Thomas Mosdale, The Precautionary Principle as a Norm of Customary International Law, 6 J. Envtl. L. 221 (1997). 73 Nicaragua, supra note 68, at 98; James Crawford, Brownlie's Principles of Public International Law 25 (2012). 74 Dinah L. Shelton, Comments on the Normative Challenge of Environmental Soft Law, in The Transformation of International Environmental Law 65 (2011). 75 ICCAT, Recommendation by ICCAT Concerning the Conservation of Sharks Caught in Association with Fisheries Managed by ICCAT, ICCAT Recommendation 04-10, 8 (Oct., 2004). Respondent s Arguments Page 11 of 23

32 SEAFO, 77 NAFO, 78 WCPFC, 79 CCAMLR, 80 and more than 80 States 81 have established finning regulations prohibiting the harvesting of sharks solely for fins. Thus, there exists consistent State practice. b. There exist opinio juris supporting such State practice. 34. The element of opinio juris is satisfied when it is shown that states conduct exhibits belief that they are conforming to a legal obligation Multilateral treaties and consensus in international conferences have been accepted as the evidence of opinio juris. 83 Moreover, General Assembly Resolutions are evidence of 76 General Fisheries Commission of the Mediterranean, Recommendation on fisheries management measures for conservation of sharks and rays in the GFCM area, GFCM/36/2012/3 (2012). 77 Southeast Atlantic Fisheries Commission, Conservation Measure 04/06 on the Conservation of Sharks Caught in Association with Fisheries Managed by SEAFO (Oct. 4, 2006). 78 NAFO, Conservation & Enforcement Measures art. 17(7), NAFO FC Doc. 11/1, Serial No. N5876 (Dec. 3, 2010). 79 The Western and Central Pacific Fisheries Commission, Resolution on Non-Target Fish Species, 1, WCPFC Res (Dec. 16, 2005). 80 Convention on the Conservation of Antarctic Marine Living Resources, Conservation of Sharks, Conservation Measure (2006). 81 Humane Society International, National laws, multi-lateral agreements, regional and global regulations on shark protection and shark finning as of March (2014), Countries Agree New Plan for Global Shark Conservation, 82 Nicaragua, supra note 68, at 207; Malcolm N. Shaw, International Law (2008). 83 Nicaragua, supra note 68, at (June 27); Mark Eugen Villiger, Customary International Law and Treaties: a Study of Their Interactions and Interrelations, With Special Consideration of the 1969 Vienna Convention on the Law of Treaties (1985). Respondent s Arguments Page 12 of 23

33 opinio juris if the states do not object to a resolution. 84 The effect of consent to the text of such resolutions may signify an acceptance of the rules declared From 2007 to 2013, the General Assembly has consistently adopted resolutions requiring countries to adopt measures that prohibit fisheries conducted solely for harvesting shark fins. 86 Consequently, Alopias, by failing to prohibit fisheries targeting sharks solely for their fins has violated CIL. II. RHINCODON HAS NOT VIOLATED INTERNATIONAL LAW BY BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS. 37. In Nicaragua, this court recognized that, a State is not bound to continue a particular trade relation longer than it sees fit to do so in the absence of a treaty commitment. 87 Pursuant to the TARA, parties have made certain specific commitments Admittedly, Rhincodon s embargo on fish and fish products contravenes Article 5 of the Agreement. 89 However, the measure adopted is justified under Article 15(a) of TARA [A]. Alternatively, if obligations under CBD and TARA conflicts, the former would prevail [B]. A. Measures adopted by Rhincodon are justified under Article 15(a) of TARA. 84 Fred L. Morrison, Legal Issues in the Nicaragua Opinion, 8 Am. J. Int l Law 160, 162 (1987). 85 Nicaragua, supra note 68, at 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, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 87 Nicaragua, supra note 68, R. para Trade Agreement between Rhincodon and Alopias art. 25, Rhincodon-Alopias (1999) [hereinafter TARA]. Respondent s Arguments Page 13 of 23

34 39. The Respondent submits that the measure is justified under Clause (a) of General Exception clause [1] and satisfies the conditions laid down under the Preamble [2]. 1. The Measure adopted is justified under Article 15(a). 40. The policy objective of the measure falls within the scope of Article 15(a) of TARA [a] and Rhincodon has nexus to adopt such a measure [b]. Furthermore, the Respondent submits that the measure is necessary to protect such public morals [c]. a. The policy objective of the measure falls within the scope of Article 15(a). 41. Under WTO jurisprudence, each member may set its own policy objectives cognizant with public interest under Article XX. 90 Member's prerogative extends to selecting the level of protection it wants to obtain, through the measure it chooses to adopt Rhincodon, by banning the imports of fish and fish products from Alopias, aims to address the moral concern of its citizens [i] and the presence of concentrated animal feeding operations in Rhincodon does not disprove the existence of such moral concerns [ii]. i. Rhincodon aims to address the moral concern of its citizens through adoption of such measures. 43. Public morals denote standards of right and wrong conduct maintained by or on 90 Appellate Body Report, US Gasoline, 28; Appellate Body Report, Brazil Measures Affecting Imports of Retreaded Tyres, 140, WT/DS332/AB/R (Dec. 17, 2007) [hereinafter Appellate Body Report, Brazil Retreated Tyres]. 91 Appellate Body Report, European Communities Measures Affecting Asbestos and Asbestos-Containing Products, 168, WT/DS135/AB/R (Apr. 5, 2001) [hereinafter Appellate Body Report, EC Asbestos]. Respondent s Arguments Page 14 of 23

35 behalf of a community or nation. 92 In EC-Seal Products, AB recognized that the inhumane treatment of animals could be accepted to denote a standard of wrongful conduct, if a nation considers the practice to be morally wrong. 93 Moreover, Panels are deferential to legislatures, when determining public morals according to their own systems and scales of values Further, Appellate Body recognized that, while the phrase to protect under XX(b), requires assessment of risk based on evidence, such risk-assessment is of no assistance in identifying the risk to public morals under Article XX(a). 95 For this reason the panel opined that there is no requirement to identify the exact content of the public morals standard at issue By adopting the measure, Rhincodon seeks to address the moral concerns of its public, which arose due to the presence of fish and fish products from Alopias fishing operations, which generally indulge in finning in its market. 46. Public moral concerns of Rhincodon have two aspects. First, Rhincodon citizens are morally concerned, as an absolute measure of right and wrong, about the incidence of inhumane killing of sharks as such. Second, they are morally concerned about their own agency in the context of violations of their standards of right and wrong, i.e., their individual and collective participation as consumers in, and exposure to (abetting) the fishing 92 Appellate Body Report, European Communities Measures Prohibiting the Importation and Marketing of Seal Products, 2.29, WT/DS400/AB/R, WT/DS401/AB/R (May 22, 2014) [hereinafter Appellate Body Report, EC-Seal Products]; Panel Report, United States Measures Affecting the Cross-Border Supply of Gambling and Betting Services, 6.465, WT/DS285/R, (Apr. 25, 2005) [hereinafter Panel Report, US Gambling]. 93 Appellate Body Report, EC Seal Products, Panel Report, United States Gambling, 6.461; Panel Report, Canada Measures Relating to Exports of Wheat and Treatment of Imported Grain, 7.759, WT/DS276/R (Sep. 27, 2004). 95 Appellate Body Report, EC Seal Products, Id Respondent s Arguments Page 15 of 23

36 operations involved in inhumane practice of finning sharks through consumption of fish and fish products. 47. The moral concerns regarding finning is indicated by the enactment of HFA 97 by Rhincodon s Parliament through an overwhelming majority 98 and through Rhincodon s constant expression of such concerns via diplomatic means Moreover, section 3 of the HFA empowers the President of Rhincodon to adopt a trade ban on fisheries related products, including a ban on all fish and fish products. 100 This indicates that the legislative intent of the Act is also to protect the public morals of citizens by preventing their participation and exposure to activities through the consumption of products, which are produced by fishing operations involved in finning. Therefore, the Respondent submits that the measure addresses moral concerns. ii. There exist moral concerns for sharks despite existence of CAFOs. 49. States have considerable discretion to determine what practices would violate the moral code of their community. 101 In EC-Seal Products, the AB rejecting Canada s submission that EU should have recognized the same level of animal welfare concern for slaughterhouses as it did for seals opined that there is no requirement to address such public moral concerns in the same way Members can set different levels of protection even when responding to similar 97 Humane Fishing Act, 3 (2001). 98 Clarification A R. paras. 18, 21, 25, Humane Fishing Act, 3 (2001). 101 Panel Report, US Gambling, Appellate Body Report, EC Seal Products, Respondent s Arguments Page 16 of 23

37 interests of moral concern. 103 The content of public morals can be characterized by a degree of variation. 104 Moreover, animal ethicists have asserted that value with regards to different animals vary based on traditions and prejudices as represented through a socio-zoological scale. 105 This scale is a part of social reality and this reality is inter alia reflected in the legislation that is introduced to protect animals The Respondent submits that the existence of CAFOs in its territory does not imply a lack of animal welfare related moral concerns with respect to finning, as concerns with respect to different practices may vary. b. Rhincodon has sufficient nexus to adopt such measure. 52. Conditioning market access on exporting members to comply with a policy unilaterally prescribed by the importing member is a common aspect of measures falling within the scope of Article XX. 107 Holding otherwise would render most of the exceptions under Article XX inutile Here, the unsustainable practice of shark finning 109 is inhumane. 110 Rhincodon s trade measure also aims to persuade Alopias to implement shark-finning prohibition effectively within its territory. Rhincodon submits that it has territorial [i] and legal [ii] nexus with mako sharks to adopt such measures. 103 Id. 104 Id A. Arluke & C.R Sanders, Regarding Animals (1996). 106 P. Sandøe & S.B. Christiansen, Ethics of Animal Use 5 (2009). 107 Appellate Body Report, United States Import Prohibition of Certain Shrimp and Shrimp Products, , WT/DS58/AB/R (Nov. 6, 1998) [hereinafter Appellate Body Report, US Shrimp]. 108 Id. 109 IUCN Finning Position Statement, supra note 12, at Humane Society International, Shark finning, Respondent s Arguments Page 17 of 23