THE FEDERAL STATES OF ALOPIAS

Transcription

1 STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT COMPETITION IN THE INTERNATIONAL COURT OF JUSTICE PEACE PALACE, THE HAGUE NETHERLANDS QUESTIONS RELATING TO THE PROTECTION OF MAKO SHARKS & TRADE RESTRICTIONS THE FEDERAL STATES OF ALOPIAS APPLICANT v. THE REPUBLIC OF RHINCODON RESPONDENT ON SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE MEMORIAL FOR THE APPLICANT THE FEDERAL STATES OF ALOPIAS

2 Table of Contents i TABLE OF CONTENTS TABLE OF CONTENTS.....i TABLE OF AUTHORITIES....ii STATEMENT OF JURISDICTION......viii STATEMENT OF FACTS.... ix STATEMENT OF ISSUES x SUMMARY OF ARGUMENTS..... xiii ARGUMENTS ADVANCED CONCLUSION & PRAYER FOR RELIEF xv

3 Table of Authorities ii TABLE OF AUTHORITIES PUBLICISTS Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, Oxford UP, (7 th Ed. 2008) Malcolm Shaw, INTERNATIONAL LAW, Cambridge University Press, (5 th Ed. 2003)....1,3,8,9 Michael Bowman, Peter Davies & Catherine Redgwell, LYSTER S INTERNATIONAL WILDLIFE LAW, Cambridge University Press, (2 nd Ed. 2010)...19 Ole Kristian Fauchald, ENVIRONMENTAL TAXES & TRADE DISCRIMINATION, Kluwer Law Intl, (1 st Ed. 2010)...20 Rajamani Lavanya, DIFFERENTIAL TREATMENT IN INTERNATIONAL ENVIRONMENTAL LAW, Oxford University Press (1 st Ed. 2006) R.R. Churchill & A.V. Lowe, THE LAW OF THE SEA, Manchester University Press, (3 rd Ed. 1999)..4 Stuart M. Kaye, INTERNATIONAL FISHERIES MANAGEMENT, Kluwer Law International, (1 st Ed. 2008)...4 Tuula Honkonen, THE COMMON BUT DIFFERENTIATED RESPONSIBILITY PRINCIPLE IN MULTILATERAL ENVIRONEMTAL AGREEMENTS, Kluwer Law International, (1 st Ed. 2009)...13 William Burke, THE NEW INTERNATIONAL LAW OF FISHERIES, Oxford University Press, (1994)...6

4 Table of Authorities iii Xue Hanqin, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, Cambridge UP, (1 st Ed. 2003)... 6 ARTICLES Alberto Szekely, International Law of Submarine Transboundary Hydrocarbon Resources: Legal Limits to Behavior and Experiences for the Gulf of Mexico, 26 NATURAL RESOURCES JOURNAL (1986)...11 Chris Wold, The Status of Sea Turtles under International Environmental Law and International Environmental Agreements, 5 JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY (2002)...11 Cyril de Klemm, Migratory Species in International Law, 29 NATURAL RESOURCES JOURNAL, (1989)...19 Elizabeth Neville, Shark Finning: A Ban to Change the Tide of Extinction, 25 Colo. Nat. Res. Energy & Envtl. L. Rev. 387 (2014)...10 Jeremy C. Marwell, Note, Trade and Morality: The WTO Public Morals Exception After Gambling, 81 N.Y.U. L. REV. 802 (2006)...18 John H. Jackson, International Economic Relations in the 21st Century, 2 EUR. BUS. ORG. L. REV. (2001)...19 S. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 Proc. Of The Am. Socy Of Int l Law (1979) Simon Lyster, The Convention On The Conservation Of Migratory Species Of Wild Animals (The "Bonn Convention"), 29 NATURAL RESOURCES JOURNAL (1989)...2

5 Table of Authorities iv CONVENTIONS, TREATIES AND RESOLUTIONS Agreement for The Establishment Of The Indian Ocean Tuna Commission, Charter of Economic Rights and Duties of States, Convention on Biological Diversity, ,10,13, 21 Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Convention On The Conservation And Management Of Fishery Resources In The South East Atlantic Ocean, Convention on the Conservation of Migratory Species of Wild Animals, , 21 International Convention for the Conservation of Atlantic Tunas, United Nations Convention on the Law of the Seas...3, 5, 10, 13, 21 Vienna Convention on Law of Treaties, , 21 ICJ CASES Anglo-Iranian Oil Co. Case (United Kingdom v Iran), Jurisdiction, [1952] ICJ Rep Case Concerning East Timor (Portugal v. Australia), Judgment, [1995] I.C.J. Rep , 12 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia vs. Serbia), Judgment, [2007] I.C.J. Rep Columbian Peruvian Asylum Case (Colombia v Peru), Judgment, [1950] I.C.J. Rep

6 Table of Authorities v Fisheries Jurisdiction Case (United Kingdom v. Iceland), Judgment, [1972] I.C.J. Rep 3 5 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, [1969] ICJ Rep OTHER CASES Appellate Body Report, China Measures Affecting Audiovisual Entertainment Products, WT/DS/363/AB/R (adopted January 19, 2010)...17 Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (adopted 12 October, 1998)...21 Appellate Body Report, United States Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (adopted 20 May 1996)...15, 19 Panel Report, European Communities Measures Prohibiting The Importation And Marketing Of Seal Products, WT/DS400/R (adopted December 10, 2013)...17 Panel Report, United States Measure Affecting Cross Border Supply of Gambling and Betting Services, WT/DS285/R (adopted 20 April 2005)...17, 18 Panel Report, United States -Section 337 of the Tariff Act of 1930 (hereinafter United States Section 377), L/ S/34 (circulated 16 January 1989)...16 Panel Report, US Restrictions on Imports of Tuna, BISD 39S/ (not adopted)...19

7 Table of Authorities vi Panel Report, US-Prohibition of Imports of Tuna and Tuna Products from Canada, BISD 29S/ (adopted Feb 22, 1982)...20 Trial Smelter Arbitration (U.S. v. Canada), 3R.I.A.A.1905 (1938/1941) UN DOCUMENTS Articles on Responsibility of States for Internationally Wrongful Acts, 53 UN GAOR Supp. (No. 10) at 43, U.N. Doc. A/56/83 (2001)...12 Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf.48/14/Rev. 1 (1973), ( Stockholm Declaration )...13 Declaration on the United Nations Conference on Environment and Development U.N. Doc. A/Conf.151/26/Rev.1 (1993) ( Rio Declaration )...6,10,13 Oceans & The Law of the Sea, G.A. Res. 68/70, U.N. Doc. (Dec. 9, 2013)..14 Permanent Sovereignty over Natural Resources, U.N. Doc.A/5217 (Dec. 14, 1962).10 Proceedings of Second Committee at UNCLOS III, 22 nd Meeting, UN Doc. A/CONF.62/C.2/L.21/Rev.1 (1974) 3 Sustainable fisheries, including through the 1995 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and related instruments, U.N.G.A. Res. 68/71, U.N. Doc. A/RES/68/71 (Dec. 9, 2013)..14 OTHER AUTHORITIES

8 Table of Authorities vii Daniel Thurer, Soft Law, in THE MAX PLANCK ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW, Vol. IX, Oxford University Press, (1 st Ed. 2012)...2 ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, YR.B.K. OF ILC, Vol. II Part Two, Munro, Van Houtte & Willmann, The conservation and management of shared fish stocks: legal and economic aspects, FAO Fisheries Technical Paper. No. 465, available at (last accessed October 3, 2014)...5 National laws, multi-lateral agreements, regional and global regulations on Shark Finning and Shark Protection, Humane Society International, available at (last accessed October 3, 2014)...10 Panel Report Addendum, European Communities Measures Prohibiting The Importation And Marketing Of Seal Products, WT/DS400/R/Add.1, Statement of Mexico...17, 18 Report of the WTO Committee on Trade and Environment, WT/CTE/1, 12 November Sir Gerald Fitzmaurice,The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Hague Recueil (1957)...15 US State Department, Memorandum of the Assistant Legal Adviser for Treaty Affairs, quoted in 88 A.J.I.L. (1994)...1

9 Statement of Jurisdiction viii STATEMENT OF JURISDICTION THE FEDERAL STATES OF ALOPIAS Applicant v. THE REPUBLIC OF RHINCODON....Respondent The Federal States of Alopias and the Republic of Rhincodon submit the following dispute to this Court by Special Agreement for Resolution without reservations, pursuant to Article 25(1) of the Trade Agreement between Rhincodon and Alopias and the Jurisdiction of this Court thus extends to all matters referred to by the parties in accordance with Article 36(1) of the Statute of the Court IN THE INTERNATIONAL COURT OF JUSTICE THE PEACE PALACE, THE HAGUE, NETHERLANDS

10 Statement of Facts ix STATEMENT OF FACTS The present dispute is between Alopias and Rhincodon with respect to the finning of long fin and short fin mako sharks which are found in their territorial waters and EEZ. Alopias is a developing nation with fishing and agriculture as primary economic activities while Rhincodon is a developed nation. In 1999, Alopias and Rhincodon signed and ratified a bilateral trade agreement, entitled Trade Agreement between Rhincodon and Alopias (TARA). Rhincodon enacted the Humane Fishing Act, 2001 and, after bilateral negotiations, Alopias enacted the Shark Finning Prohibition Act, 2002 on similar lines. Accordingly, shark fins could only be landed in Alopias territory if the fins were naturally attached to the shark. In March 2010, Alopias sought development assistance from Rhincodon to bolster law enforcement. However, they were declined. Rhincodon requested Alopias to amend its 2002 Act to expressly include spining. Alopias declined, citing economic development and budget concerns as more pressing priorities. Hereinafter, Rhincodon imposed trade restrictions on the importation of fish and fish products from Alopias, following which the parties submitted the matter to the International Court of Justice.

11 Statement of Issues x STATEMENT OF ISSUES I. ALOPIAS HAS NOT VIOLATED ITS TREATY LAW OBLIGATIONS WITH RESPECT TO FINNING & SPINING OF MAKO SHARKS BY ITS NATIONALS WITHIN ITS TERRITORIAL WATERS AND EEZ. 1. Alopias has not violated its obligations under the CMS Convention. 1.1 The CMS MoU on Sharks, being merely soft law, has no legally binding character. 1.2 Arguendo, the applicant state has not flouted the provisions of the CMS Convention. 2. Alopias has not violated its obligations under UNCLOS. 2.1 The coastal state has sovereign rights over the marine living resources in its waters 2.2 The coastal state is allowed full discretion to figure in relevant economic factors in computing the allowable catch of fish stock. 2.3 The duty to co-operate in respect of straddling stocks is merely a Pacta de negotiando. 2.4 Alopias has fulfilled the duty to co-operate in respect of mako sharks which are Highly Migratory Species. 3. Alopias has not violated its obligations under the CBD. 3.1 Alopias has upheld the no-harm principle envisaged in Article Arguendo, the doctrine of clean hands precludes the respondent from raising this issue. II. ALOPIAS HAS NOT VIOLATED ITS OBLIGATIONS UNDER CUSTOMARY INTERNATIONAL LAW WITH RESPECT TO THE FINNING & SPINNING OF MAKO SHARKS BY ITS NATIONALS WITHIN ITS TERRITORIAL WATERS AND EEZ.

12 Statement of Issues xi 1. The prohibition of shark finning is not a dictate under customary international law. 1.1 RFMO directives, being applicable only to activities in High Seas, cannot constitute relevant state practice. 1.2 UNGA Resolution 68/71 cannot generate a rule of customary law. 1.3 In any case, state practice as to blanket prohibition of shark finning is not substantially uniform. 2. Alopias has Full and Permanent Sovereignty over its Natural Resources 2.1 Due compliance of No-Harm Principle at all points of time. 2.2 The mere fact that mako sharks are shared resources does not alter the status of state sovereignty over natural resources. 2.3 Moreover, there is no CIL obligation to conserve a species which is not endangered with extinction. 3. Arguendo, respondent has to bear the responsibility for effective implementation of shark finning by virtue of the principle of Common but Differentiated Responsibility 3.1 Common but Differentiated Responsibility has emerged as a CIL norm. 3.2 The respondent state has the responsibility to enhance the technical capabilities of Alopias so as to bolster shark conservation measures. III. RHINCODON HAS VIOLATED INTERNATIONAL LAW BY BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS. 1. The blanket ban on import of all Alopian fish and fish products fails the necessity test envisaged in litras (a) and (b) of Article 15 of TARA. 1.1 The meaning of every word in a treaty is to be given effect to. 1.2 Least trade restrictive measure is to be pursued. 1.3 The alternative measure of restricting the ban to just shark fins and products is reasonably available to Rhincodon. 2. The measure cannot be justified to protect public morals under Article 15 (a) of TARA. 2.1 The scope of Article 15 (a) is restricted to protecting public morals within the territory of the state.

13 Statement of Issues xii 2.2 Arguendo, the widespread practice of Concentrated Animal Feeding Operations in Rhincodon shows that animal welfare has not crystallised as a public moral. 3. The concerned measure, being of extra-territorial application, violates Article 15(b) of TARA. 4. The concerned measure, having failed the even-handedness test, cannot be justified under Article 15(g) of TARA. 5. Arguendo, the import prohibition, being a unilateral trade sanction, is violative of the object and purpose of TARA. 5.1 TARA does not permit imposition of unilateral trade sanctions 5.2 The present import prohibition is of a unilateral design

14 Summary of Arguments xiii SUMMARY OF ARGUMENTS I. ALOPIAS HAS NOT VIOLATED ITS TREATY LAW OBLIGATIONS WITH RESPECT TO FINNING & SPINING OF MAKO SHARKS BY ITS NATIONALS WITHIN ITS TERRITORIAL WATERS AND EEZ. Alopias has upheld its treaty obligations and acted well within the confines of international law in relation to finning and spinning of mako sharks. The CMS MOU on Sharks was duly complied with by acting in good faith. The provisions of UNCLOS granting sovereign rights over marine resources and right to determine allowable catch to a coastal state up to its EEZ favor the stance of Alopias. The duty to co-operate in respect of straddling stocks, as proposed by UNCLOS was merely a Pacta de negotiando. The principle enshrined in Article 3 of CBD, viz. no harm principle, has been fulfilled by Alopias. On the other hand, Rhincodon, having breached Article 20 of CBD, would be restricted from making the claim due to the application of the clean hands doctrine. II. ALOPIAS HAS NOT VIOLATED ITS CUSTOMARY INTERNATIONAL LAW OBLIGATIONS WITH RESPECT TO FINNING & SPINING OF MAKO SHARKS BY ITS NATIONALS WITHIN ITS TERRITORIAL WATERS AND EEZ. Alopias has not acted in derogation of customary international law as Shark finning has not attained such status. RFMO directives, being applicable only to High Seas, cannot constitute relevant state practice. Reliance sought by respondent on UN GA 68/71 cannot accord it status of CIL due to its directory and non-binding nature. Skewed ratios with respect to state practice further contravene the uniformity criteria of custom. Alopias has permanent sovereignty over its

15 Summary of Arguments xiv natural resources and has not violated the no-harm principle. Recognition of Mako sharks as shared resources cannot jeopardize the sovereign rights of Alopias. Besides, there is no CIL obligation to conserve a species not endangered with extinction. CBDR, a CIL norm, justifies the position adopted by Alopias. Simultaneously, it imposed an obligation on the respondent to promote capacity building, which they failed to comply with. III. RHINCODON HAS VIOLATED INTERNATIONAL LAW BY IMPOSING A BLANKET BAN ON THE IMPORTATION OF ALL FISH AND FISH PRODUCTS FROM ALOPIAS. Rhincodon has violated its international law obligation by imposing blanket ban on importation of all fish and fish products from Alopias. Such a ban was in contravention of Art. 15(a), (b) and (g) of TARA. The necessity test devised by WTO panels mandates that the least trade restrictive measures be adopted. The alternative measure of restricting the ban to just shark fins and products was reasonably available to Rhincodon. Moreover, the import prohibition, being of a unilateral design, is violative of the object and purpose of TARA.

16 Arguments Advanced 1 ARGUMENTS ADVANCED I. ALOPIAS HAS NOT VIOLATED ITS TREATY LAW OBLIGATIONS WITH RESPECT TO FINNING & SPINING OF MAKO SHARKS BY ITS NATIONALS WITHIN ITS TERRITORIAL WATERS AND EEZ. The state of Alopias, despite being under no international obligation (emphasis placed) to bring forth a ban on shark finning and spinning within its waters, enacted the Shark Finning Prohibition Act in However, due to paucity of technical capabilities and financial resources 2, Alopias bona fide efforts to implement the ban went in vein. 1. Alopias has not violated its obligations under the CMS Convention. The state of Alopias, in pursuance of the objects of the CMS Convention, to which it is a signatory, became a party to the Memorandum of Understanding on Sharks (Sharks MoU). The respondent state s allegations that Alopias has incurred international responsibility by breaching the terms of the convention and the MoU is unfounded as explained forthwith: 1.1. The CMS MoU on Sharks, being merely soft law, has no legally binding character. Soft law refers to that category of instruments/agreements which shares some proximity to law; but at the same time is not legally binding per se as a matter of law. 3 The characterisation of an international agreement as non-binding is sufficient to take it into the realm of soft law. 4 Thus, 1 Record, Record, Malcolm Shaw, INTERNATIONAL LAW, Cambridge University Press, p. 111, (5 th Ed. 2003). 4 US State Department, Memorandum of the Assistant Legal Adviser for Treaty Affairs, quoted in 88 A.J.I.L. (1994), p. 515.

17 Arguments Advanced 2 by virtue of Section 1(1) of the CMS MoU on Sharks, which expressly characterises this instrument as non-legally binding, it constitutes merely soft law. Most publicists agree that the legal relevance of soft law is to be restricted to the field of good faith. 5 Thus, the legal obligation of states who have subscribed to non-legally binding instruments is discharged once it is proved that they have acted in good faith. In the present case, the applicant state, by passing a legislation proscribing shark finning and making efforts to implement it to the best of its technical capabilities, has discharged such obligation Arguendo, the applicant state has not flouted the provisions of the CMS Convention. The CMS Convention (under the aegis of which the MoU on Sharks was entered into) makes it obligatory for the signatories to adopt conservation strategies only in respect of endangered species listed in Appendix I. 6 As far as Appendix II species (such as the mako sharks) are concerned, Article IV stipulates that the signatories are only required to conclude further agreements with concerned range states in order to deal with identification of migratory species, their routes and habitats, empowerment of national authorities and other regulatory aspects. There is no obligation whatsoever to adopt conservation strategies for the protection of such migratory species. 7 Furthermore, Section 4 (h) of the Sharks MoU which calls states to prohibit shark finning by requiring that sharks be landed with each fin naturally attached, has been complied with through the enactment of the Shark Finning Prohibition Act in Moreover, the failure to implement the ban on finning, being attributable to the lack of technical capabilities in Alopias (a 5 Daniel Thurer, Soft Law, in THE MAX PLANCK ENCYCLOPAEDIA OF PUBLIC INTERNATIONAL LAW, Vol IX, Oxford University Press, p.275, (1 st Ed. 2012). 6 Article III, Convention on the Conservation of Migratory Species of Wild Animals, 1979 (hereinafter CMS). 7 Simon Lyster, The Convention On The Conservation Of Migratory Species Of Wild Animals (The "Bonn Convention"), 29 NATURAL RESOURCES JOURNAL (1989), p. 989.

18 Arguments Advanced 3 developing nation), can be excused under Section 4 (14) of the Sharks MoU which states that the conservation efforts should be in tandem with the capabilities of the respective countries. 2. Alopias has not violated its obligations under UNCLOS. 2.1 The coastal state has sovereign rights over the marine living resources located in its territorial waters and EEZ. UNCLOS categorically confers on the coastal State sovereign rights for the exploration, exploitation and conservation of living and non-living natural resources as well as for carrying ancillary activities for the economic exploitation and exploration of the zone. 8 The use of the phrase sovereign rights implies that its rights in the EEZ are not merely preferential in relation to other states. 9 Moreover, the fact that the drafting committee rejected the Nigerian representative s suggestion of replacing sovereign rights with exclusive rights shows beyond doubt that the coastal state has the sole prerogative to decide on the scope and extent of harvesting techniques and conservation measures in respect of migratory stocks as well. 10 Thus, the applicant is under no obligation to follow the dictate of Rhincodon in relation to the abolition of shark spining and finning in its EEZ and territorial waters. 2.2 The coastal state is allowed full discretion to figure in relevant economic factors in computing the allowable catch of fish stock. Article 61(1) of the UNCLOS provides that it is for the coastal states to determine the allowable catch for the living resources in its EEZ. By conferring such a right on the state, this provision 8 Article 56 (1) (a), United Nations Convention on the Law of the Seas, 1982 (hereinafter UNCLOS). 9 Shaw, Supra note 3, p Proceedings of Second Committee at UNCLOS III, 22 nd Meeting, UN Doc. A/CONF.62/C.2/L.21/Rev.1 (1974), 13.

19 Arguments Advanced 4 makes it clear that there is no attempt to dilute coastal state sovereignty with respect to the question of exploitation of fisheries. 11 Moreover, the coastal state s obligation to maintain the population of living resources at the maximum sustainable yield provides ample relaxation to meet the economic needs of coastal fishing communities and the special requirements of developing States. 12 Such a heavily qualified maximum allowable catch permit states to catch any desirable yield so as to maximize its economic well-being. 13 Furthermore, as Article 61 (2) of the UNCLOS (which deals with conservation efforts) does not specify those kinds of measures which are proper in the pursuit of conservationist goals, it can be safely implied that the coastal state has been given leeway in this regard. 14 As Alopias is a developing country with a sizable coastal community dependent on shark harvesting for their sustenance and economic development, it has the complete discretion to set its own limits on the utilisation and harvesting of sharks in its EEZ waters. As the clarification to the Record clearly provides that the populations of the mako sharks are not in decline, there cannot be any adverse contention as to the effect of spining and finning on the shark populations The duty to co-operate in respect of straddling stocks is merely a Pacta de Negotiando Article 63(2) of UNCLOS, which deals with straddling stocks (such as the mako sharks), require states to seek to agree upon necessary measures for the management of such species. The wording of this provision indicates that it is merely a pactum de negotiando (duty to negotiate) as 11 Stuart M. Kaye, INTERNATIONAL FISHERIES MANAGEMENT, Kluwer Law International, p.99 (1 st Ed. 2008). 12 Article 61(3), UNCLOS, Supra note R.R. Churchill & A.V. Lowe, THE LAW OF THE SEA, Manchester University Press, p. 289 (3 rd Ed. 1999). 14 Supra note 11, p Clarifications to Record, A12.

20 Arguments Advanced 5 opposed to a pactum de contrahendo (duty to negotiate and reach an agreement). 16 This is because the latter arises only in cases in which the parties have already undertaken a legal obligation to conclude an agreement on the basis of the negotiations. 17 In the absence of such an obligation, this provision is merely a requirement to enter into bona fide negotiations for the management of fish stocks, which the applicant state has discharged. Thus, upon the parties failing to reach any agreement, the applicant state is vested with the sole prerogative to permit finning and spinning activities in its EEZ. 2.4 Alopias has fulfilled the duty to co-operate in respect of mako sharks which are Highly Migratory Species. Mako sharks, having been listed in Annex-I of UNCLOS, is a Highly Migratory Species. In respect of HMS, UNCLOS obliges states to co-operate with a view to ensure their optimum utilization and conservation. 18 After having engaged in bilateral negotiations with Rhincodon, Alopias has gone on to ban shark finning in the interest of conservation of mako sharks. 19 Moreover, Alopias has also agreed to ban shark spinning in the near future. Such bona fide negotiation/bargaining efforts to tackle the issue of conservation of sharks is sufficient to discharge the obligation to cooperate. 20 Once this obligation is discharged, then the coastal State 16 Fisheries Jurisdiction Case (United Kingdom v. Iceland), Judgment, [1972] I.C.J. Rep 3, p North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, [1969] ICJ Rep 3, Article Record, Munro, Van Houtte & Willmann, The conservation and management of shared fish stocks: legal and economic aspects, FAO Fisheries Technical Paper. No. 465, available at (last accessed October 3, 2014).

21 Arguments Advanced 6 (Alopias) retains its authority to exercise its decision making powers over the harvesting of HMS Alopias has not violated its obligations under the CBD. 3.1 Alopias has upheld the no harm principle envisaged in Article 3. The CBD categorically reiterates the customary law 22 of a sovereign s rights to exploit its natural resources pursuant to its national environmental policies 23 and even casts a positive duty on the other States to respect them. Such a sovereign right is circumscribed only by the obligation to ensure that the activities within its own jurisdiction do not harm the environment of other States. 24 As elaborated by the International Law Commission, such an obligation to prevent trans-boundary harm is to be exercised in accordance with the standard of due diligence. 25 However, this standard is a flexible one; the threshold being much lower for a developing nation. 26 The state of Alopias enacted a law prohibiting shark finning and also sought to implement it in good faith to the best of its technical capabilities. Having thus exercised its best possible efforts to minimise the harm 27, the applicant state cannot be said to have violated this obligation flowing under the CBD. 3.2 Arguendo, the doctrine of clean hands precludes the respondent from raising this issue. 21 William Burke, THE NEW INTERNATIONAL LAW OF FISHERIES, Oxford University Press, p. 218 (1994). 22 Principle 2, Rio Declaration on Environment and Development, 1992 (hereinafter Rio Declaration), U.N. Doc. A/Conf. 151/ 5/ Rev.1(1992). 23 Article 3, Convention on Biological Diversity, 1992 (hereinafter CBD). 24 Ibid. 25 ILC Draft Articles on Prevention of Transboundary Harm from Hazardous Activities with Commentaries, YR.B.K. OF ILC, Vol. II Part Two, 2001, p Xue Hanqin, TRANSBOUNDARY DAMAGE IN INTERNATIONAL LAW, Cambridge UP, p. 164 (1 st Ed. 2003). 27 Supra note 21, p. 154.

22 Arguments Advanced 7 The doctrine of clean hands, which this court has recognised as a general rule of international law 28 dictates that a State, guilty of illegal conduct shall be deprived of the locus standii to raise a complaint on the corresponding and consequential illegality of another State. The respondent, having flouted Article 20(2) of the CBD which casts an obligation upon developed countries to provide financial and other assistance to developing nations to help them meet their obligations under the Convention, is therefore precluded from complaining of the financial and technical inability of Alopias 29 in implementing the ban on shark finning. 28 Legal Consequences of the Construction of a Wa11 in the Occupied Palestinian Territory, Advisory Opinion, [2004] I. C. J. Rep 136, Record, 19.

23 Arguments Advanced 8 II. ALOPIAS HAS NOT VIOLATED ITS CUSTOMARY INTERNATIONAL LAW OBLIGATIONS WITH RESPECT TO FINNING & SPINING OF MAKO SHARKS BY ITS NATIONALS WITHIN ITS TERRITORIAL WATERS AND EEZ. 1. The prohibition of shark finning is not a dictate of customary international law. The respondent state s contention that the prohibition of shark finning has crystallised as a CIL norm is unfounded in international law as has been established forthwith: 1.1 RFMO directives, being applicable only to the activities in High Seas, cannot constitute relevant state practice. State practice (which is a pre-requisite for the establishment of a custom) can be gauged through the analysis of treaties, diplomatic correspondence and even general practices of multilateral organisations. 30 Thus, by relying on directives issued by Regional Fisheries Management Organisations in relation to shark finning, the respondent has sought to establish the formation of customary international law. However, a bare perusal of the provisions of conventions establishing various Regional Fisheries Management Organizations would reveal that their jurisdiction extend to only activities in the High Seas. 31 Most of them go to the extent of categorically stating that the provisions of the agreements shall not prejudicially affect the rights of the states in their territorial waters and 30 Shaw, Supra note 3, p Article 2, International Convention for the Conservation of Atlantic Tunas; Article 16, Agreement For The Establishment Of The Indian Ocean Tuna Commission; Article 4, Convention On The Conservation And Management Of Fishery Resources In The South East Atlantic Ocean; Article 1(5), Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries.

24 Arguments Advanced 9 Exclusive Economic Zones. As most of them expressly affirm the principle of state sovereignty over territorial waters and EEZs, they establish a rule in favour of the applicant s stance. 1.2 UNGA Resolution 68/71 cannot generate a rule of customary law. The respondent has also sought to rely on UNGA Resolution 68/71 in order to establish the formation of CIL. However, publicists unanimously agree that almost all UNGA resolutions are merely normative in content and are non-binding in nature. 32 The test for segregating the binding UNGA Resolutions from the chaff of soft law is to look at the content and conditions of adoption. 33 In the present resolution, the sprinkling of directive and non-binding phrases such as encourages states to give priority ; urges states to intensify efforts and invites states to cooperate indicates that the drafters never intended to create norms of a binding nature, let alone customary international law. 1.3 In any case, state practice in relation to absolute prohibition of shark finning is not substantially uniform for it to become a rule of customary international law. Customary norms as enshrined in Article 38 of the ICJ statute are distinguished by an established, consistent, and extensive practice by states and the presence of opinio juris. 34 In other words, substantial uniformity of state practice is an essential pre-requisite for the formation of a custom. The contention of the respondent state rests on the point that the absolute prohibition on shark finning has attained universal acceptance. However, survey of actual state practice finds that only a bunch of certain countries (nearly 20) have introduced a total ban on all 32 S. Schwebel, The Effect of Resolutions of the U.N. General Assembly on Customary International Law, 73 Proc. Of The Am. Socy Of Int l Law (1979), p Shaw, Supra note 3, p Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, Oxford UP, p. 24 (7 th Ed. 2008).

25 Arguments Advanced 10 kinds of shark finning. 35 Almost all the RFMOs and around fifteen countries (including the United States of America) 36 permit shark finning in a limited capacity through specification of a shark fin to carcass ratio. In such countries, as long as the ratio of the weight of fins carried onshore to the weight of carcass landed is within a permissible limit, shark finning is allowed. The remaining vast number of states has no municipal regulations/restrictions on shark finning in its territorial waters. Hence, there remains to be seen any virtual uniformity in state practice so as to result in the formation of a CIL norm. 2. Alopias has Full and Permanent Sovereignty over its Natural Resources A State has permanent sovereignty over its natural wealth and resources (PSNR), which may be exercised in the interests of its national development and the well-being of its people. 37 This principle, being expressly affirmed in several treaties and declarations 38, has now attained the status of customary international law. 39 Nonetheless, it is limited by the no-harm principle Due compliance of No Harm Principle at all points of time States are bound to abide by the No Harm Principle which enshrines upon States, the responsibility to use all the means at its disposal (emphasis placed) to avoid activities which take place in its territory, or in any area under its jurisdiction, causing significant damage to the 35 Humane Society International, National laws, multi-lateral agreements, regional and global regulations on Shark Protection and Shark Finning, available at (last visited October 3, 2013). 36 Elizabeth Neville, Shark Finning: A Ban to Change the Tide of Extinction, 25 Colo. Nat. Res. Energy & Envtl. L. Rev. 387 (2014), p Permanent Sovereignty over Natural Resources, U.N. Doc.A/5217 (Dec. 14, 1962). 38 CBD, Supra note 23, Article 3; Rio Declaration, Supra note 22, Principle 2; UNCLOS, Supra note 8, Article Case Concerning East Timor (Portugal v. Australia), Judgment, [1995] I.C.J. Rep 68, p U.N. Doc A/RES/1515(XV) (Dec. 15, 1960), 9.

26 Arguments Advanced 11 environment of another State. 41 In the present case, Alopias had enacted the Shark Finning Prohibition Act in and sought development assistance from Rhincodon to bolster their law enforcement efforts 43 so as to give a concrete shape to shark conservation. Thus, through making full utilization of its limited resources, Alopias has satisfied the due diligence obligation. 2.2 The mere fact that mako sharks are shared resources does not alter the status of state sovereignty over natural resources. Shared resources refers to resources that do not fall wholly within the territorial jurisdiction of one State, but straddle political borders or migrate from one territory to another. 44 The concept of shared resources is still in its infancy and has been slow to develop to assume even a normative character. 45 In any event, it cannot be said to have displaced the CIL principle of permanent rights over sovereign resources as even the mere acceptance of the inevitable natural unity of a given deposit of resources would result in fragmentation of the sovereignty of a State over its territory and natural wealth. 46 The lack of opinion juris may be inferred from the fact that even when states cooperate with its neighbors for exploration and exploitation of trans-boundary resources, such resources may be 41 Trial Smelter Arbitration, 3R.I.A.A.1905 (1938/1941). 42 Record, Record, Draft Principles of Conduct in the Field of the Environment for the Guidance of States in the Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, UNEP Doc. IG. 12/2. 45 Chris Wold, The Status of Sea Turtles under International Environmental Law and International Environmental Agreements, 5 JOURNAL OF INTERNATIONAL WILDLIFE LAW AND POLICY (2002), p Alberto Szekely, International Law of Submarine Trans-boundary Hydrocarbon Resources: Legal Limits to Behavior and Experiences for the Gulf of Mexico, 26 NATURAL RESOURCES JOURNAL (1986), p. 735.

27 Arguments Advanced 12 regarded as shared from a purely physical, natural, or ecological point of view, but not from a legal one Moreover, there is no erga omnes obligation to conserve a species which is not endangered with extinction. A state can invoke the responsibility of another state only if the obligation that is breached is owed to that state individually or if it is an erga omnes obligation. 48 As it has already been established that Alopias does not owe any obligation to Rhincodon in respect of the activities within its territorial waters, the matter can be raised only if it is an erga omnes obligation. However, this Court has restricted such obligations to those concerning protection of fundamental human rights, like prevention of slavery, torture, racial discrimination and the right to self-determination. 49 In no way can this class of obligations be stretched so wide as to include animal conservation within it. Hence, there being no erga omnes obligation to conserve mako sharks, Rhincodon cannot invoke the responsibility of Alopias in this respect. 3. Arguendo, respondent has to bear the responsibility for effective implementation of shark finning by virtue of the principle of Common but Differentiated Responsibility 3.1 Common but Differentiated Responsibility has emerged as a norm of customary international law. 47 Ibid. 48 Article 42, Articles on Responsibility of States for Internationally Wrongful Acts, 53 UN GAOR Supp. (No. 10) at 43, U.N. Doc. A/56/83 (2001). 49 Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Bosnia vs. Serbia), Judgment, [2007] I.C.J. Rep 43; Case Concerning East Timor, Supra note 39, p. 102.

28 Arguments Advanced 13 Common responsibility describes the shared obligations of two or more states towards the protection of a particular environmental resource, taking into account its relevant characteristics and nature, physical location, and historic usage associated with it. 50 CBDR is a central principle of international law and has become a principle of customary international law. 51 It permeates a wide range of environmental declarations. 52 In so far as it is premised on commonalities of interest in the face of divergent material conditions, differential treatment, as specified in the concepts of CBDR, can also be seen as a reflection of solidarity in the international field. 53 In the present case Alopias is a developing nation 54 while Rhincodon is a developed nation having a diversified, industrial economy. 55 Consequently, the nature of responsibility vested upon both in context of environment protection cannot be similar. 3.2 The respondent state has the responsibility to enhance the technical capabilities of Alopias so as to bolster shark conservation measures. Capacity building is a broader concept than re-distribution of resources. It comprises offering financial aid, training, technical and scientific assistance, administrative support and the transfer of information and know-how. 56 Capacity building has also been proposed as an obligatory 50 Phillipe Sands, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, Cambridge University Press, p. 286 (2 nd Ed. 2003). 51 Kevin R. Gray, WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT; ACCOMPLISHMENTS AND NEW DIRECTIONS, 52 I.C.L.Q. (2003), p Principle 23, Stockholm Declaration, 1972; Article 30, Charter of Economic Rights and Duties of States; Principle 7, Rio Declaration; Preamble to UNCLOS; Preamble to CBD. 53 Rajamani Lavanya, DIFFERENTIAL TREATMENT IN INTERNATIONAL ENVIRONMENTAL LAW, Oxford University Press, p. 7 (2006). 54 Record, Record, Tuula Honkonen, THE COMMON BUT DIFFERENTIATED RESPONSIBILITY PRINCIPLE IN MULTILATERAL ENVIRONEMTAL AGREEMENTS, Kluwer Law International, p. 148 (1 st Ed. 2009).

29 Arguments Advanced 14 measure in the UNGA Resolution on Ocean and Law of the Seas 57, which was passed alongside the UN Resolution on Sustainable Fisheries 58 that has been relied upon by Rhincodon in the factsheet. Alopias had expressly sought from Rhincodon development assistance to bolster their law enforcement efforts. 59 Rhincodon, being a developed nation had an obligation to aid and facilitate its neighboring developing country in managing and conserving a common resource. However, no such assistance was provided, 60 as a result of which the respondent failed to abide by the tenets of this CIL principle. 57 U.N. Doc. A/RES/68/70, 9-38 (Dec. 9, 2013). 58 U.N. Doc. A/RES/68/71, 15 (Dec. 9, 2013). 59 Record, Record, 20.

30 Arguments Advanced 15 III. RHINCODON HAS VIOLATED INTERNATIONAL LAW BY IMPOSING A BLANKET BAN ON THE IMPORTATION OF ALL FISH AND FISH PRODUCTS FROM ALOPIAS. 1. The blanket ban on import of all Alopian fish and fish products fails the necessity test envisaged in litras (a) and (b) of Article 15 of TARA. Any trade measure, for it to be justifiable under Article 15 (a) or Article 15 (b) of TARA, should be necessary as to the achievement of its policy objects. The concerned measure imposed by Rhincodon having flouted this requirement cannot be justified under Articles 15 (a) or 15 (b) of the TARA. 1.1 The meaning of every word in a treaty is to be given effect to. A treaty is to be interpreted such that a reason and a meaning can be attributed to every word in the text. 61 Consequently, the meaning of every word is to be given effect to without deeming it redundant. 62 Thus, while interpreting Article 15 of TARA, the meaning and legal significance of the word necessary has to be taken into account. 1.2 Least trade restrictive measure is to be pursued. The concerned trade measure, for it to be justifiable under litras (a) and (g) of Article 15 of TARA, should be necessary to fulfil the policy object. The use of the word necessary implies that the measure has to fulfil the necessity test 63 which has been devised by a host of WTO panels and appellate bodies. According to this test, a measure is considered necessary if it does 61 Anglo-Iranian Oil Co. Case (United Kingdom v Iran), Jurisdiction, [1952] ICJ Rep 93, p Sir Gerald Fitzmaurice,The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Hague Recueil (1957), p Appellate Body Report, United States Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R (adopted 20 May 1996), 22.

31 Arguments Advanced 16 not have at its disposal a reasonably available alternative measure which is less trade restrictive. 64 Applying the test in the extant factual circumstances, we see that that the blanket prohibition on all fish products is wholly unnecessary. This is because the respondent could have introduced a ban restricted to just shark and shark products in order to curb the incidents of shark finning and spining. Another test to determine the necessity of a measure would be to examine whether states or local entities suffering from comparable problems (improving the conservation status of animals in this case) have dealt with the problem successfully by using alternative measures which are less trade restrictive. 65 Now, there have been various cases in which states have successfully implemented restricted bans to pursue environmental goals. For instance, to tackle the problem of overfishing of tuna, the US went for a restricted ban on tunas from Canada. Also, to deal with the problem of turtle mortality associated with shrimp fishing, the US went for a restricted ban on shrimps from concerned states. Clearly, the measure at hand fails the necessity test. 1.3 The alternative measure of restricting the ban to just shark fins and products is reasonably available to Rhincodon. It emanates from WTO jurisprudence that the alternative measure must be reasonably available for the country invoking the GATT defence. For it to be reasonably available, it should be able to 64 Panel Report, United States -Section 337 of the Tariff Act of 1930, L/ S/34 (circulated 16 January 1989), Ibid, 5.43

32 Arguments Advanced 17 achieve the concerned policy object without creating a prohibitively undue burden on the state 66. The suggested alternative of restricting the blanket ban to a limited embargo on shark and shark products would have the effect of compelling them to adopt a more humane practice. Moreover, Rhincodon, having already implemented a domestic law 67 banning the use of shark products harvested from finned sharks, would not face any significant additional burden while implementing this measure. 2. The measure cannot be justified to protect public morals under Article 15 (a) of TARA. 2.1 The scope of Article 15(a) is restricted to protecting morals within the territory of the state invoking the exception. Article 15(a) of TARA permits a contracting party to impose trade restrictions so as to protect public morals. Now, Rhincodon, by imposing the embargo, has enacted an outwardly directed trade measure, i.e. it is a measure which is directed to protect the morality of those Alopian fishermen outside the territorial jurisdiction of Rhincodon. However, such outwardly directed trade measures are de hors the scope of the public morality exception in GATT. 68 A perusal of cases on the corresponding GATT provision [Article XX (a)] too indicates that the exception is inwardly directed Appellate Body Report, China Measures Affecting Audiovisual Entertainment Products, WT/DS/363/AB/R (adopted January 19, 2010), Record, Panel Report Addendum, European Communities Measures Prohibiting The Importation And Marketing Of Seal Products (hereinafter EC-Seal Case), WT/DS400/R/Add.1, Statement of Mexico, China-Audiovisual case, Supra note 66; Panel Report, United States Measure Affecting Cross Border Supply of Gambling and Betting Services, WT/DS285/R (adopted 20 April 2005).

33 Arguments Advanced Arguendo, the widespread practice of Concentrated Animal Feeding Operations in Rhincodon shows that animal welfare has not crystallised as a public moral. The WTO panel in US Gambling defined "public morals" as "standards of right and wrong conduct maintained by or on behalf of a community or nation". 70 Each and every public concern cannot ipso facto give birth to a public moral. 71 Rather, it should satisfy the two pre-requisites laid down in EC-Seal 72, viz. it should actually exist in society and secondly, such concern should be uniformly manifested across all legislations and community practices. In this context, it is pertinent to note that concentrated animal feeding operations are a common and legal practice in Rhincodon. 73 The fact that this practice continues to be legal and unregulated in Rhincodon shows that it s public and legislators are tolerant towards animal cruelty, thereby precluding it from rising to the level of a moral imperative or a public moral within the meaning of Article 15(a). 3. The concerned measure, being of extra-territorial application, violates Article 15(b). The policy object which Rhincodon seeks to achieve through the import ban is the prevention of shark finning and spinning by Alopian fishermen in Alopian territorial and EEZ waters. Clearly, the measure, lacking sufficient personal or territorial nexus has an extra-territorial effect. The fact that the sharks are migratory species does not alter the well-established customary international law rule of state sovereignty over the resources found in its jurisdiction at any given 70 Panel Report, US Gambling Case, Supra note 69, Jeremy C. Marwell, Note, Trade and Morality: The WTO Public Morals Exception After Gambling, 81 N.Y.U. L. REV. 802 (2006), p Panel Report, EC-Seal Case, Supra note 68, Record, 30.

34 Arguments Advanced 19 point in time. 74 A casual scrutiny of treaty law too would lead to the conclusion that migratory species come under the successive sovereignty of each of the states situated along their migration route. 75 Thus the measures imposed by Rhincodon are of an extra-territorial and extrajurisdictional nature. The WTO has repeatedly called extrajurisdictional measures as vires the scheme of Articles XX (b) and XX (g) of GATT (which can be equated to Articles 15(b) of TARA) to contain ecoimperialistic practices designed by developed nations to impose their environmental preferences on developing countries. 76 In the US Tuna Dolphin I case 77, the Panel found that the US import restrictions on tuna and tuna products in the pretext of dolphin conservation in the Eastern Tropical Pacific Ocean are illegal due to the extra-territorial application of the legislation. 4. The concerned measure does not satisfy the test of even-handedness envisaged under Article 15(g) of TARA. Article 15 of TARA stipulates that the concerned measure must be made effective in conjunction with restrictions on domestic production or consumption. This phrase should be read as a requirement of even-handedness in the imposition of restrictions, in the name of conservation, upon domestic and foreign products. 78 Thus, the trade measure must be 74 Michael Bowman, Peter Davies & Catherine Redgwell, LYSTER S INTERNATIONAL WILDLIFE LAW, Cambridge University Press, p. 48 (2 nd Ed. 2010). 75 Cyril DeKlemm, Migratory Species in International Law, 29 NATURAL RESOURCES JOURNAL 935, p John H. Jackson, International Economic Relations in the 21st Century, 2 Eur. Bus. Org. L. Rev. (2001), p Panel Report, US Restrictions on Imports of Tuna, BISD 39S/ (not adopted), US-Gasoline Case, Supra note 63, Part III, p. 21.