THE 2014-2015 STETSON INTERNATIONAL … 2014-2015 STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT ......

THE 2014-2015 STETSON INTERNATIONAL ENVIRONMENTAL MOOT COURT

COMPETITION

___________________________________________________________________________

___________________________________________________________________________

IN THE

INTERNATIONAL COURT OF JUSTICE

AT THE

PEACE PALACE, THE HAGUE

___________________________________________________________________________

CASE CONCERNING THE PROTECTION OF MAKO SHARKS AND TRADE

RESTRICTIONS

THE FEDERAL STATES OF ALOPIAS

v.

THE REPUBLIC OF RHINCODON

Case No. XXX/2014

MEMORIAL ON BEHALF OF THE RESPONDENT

THE REPUBLIC OF RHINCODON

~Memorial on Behalf of Respondent~

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TABLE OF CONTENTS

I. Index of Authorities.........................................................................................................III

II. Statement of Jurisdiction.................................................................................................IX

III. Statement of Facts.............................................................................................................X

IV. Issues Raised.....................................................................................................................XI

V. Summary of Arguments.................................................................................................XII

VI. Arguments Advanced........................................................................................................1

1. Alopias violated its customary obligations by not preventing the finning and spining of

Mako Sharks........................................................................................................................1

2. Alopias violated its treaty obligations by not preventing the finning and spining of Mako

Sharks..................................................................................................................................5

3. Alopias cannot permit finning and spining of Mako Sharks by claiming Permanent

Sovereignty over Natural Resources.................................................................................12

4. Rhincodon has not violated International Law by banning the importation of fish and fish

products from Alopias.......................................................................................................14

VII. Conclusion and Prayer..............................................................................................22


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INDEX OF AUTHORITIES

BOOKS

1. DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT AND THE FUTURE 267

(Peterson Institute, 1994) [Greening the GATT].

2. DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA (2009).

3. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 380 (6th ed. 2003).

4. MALCOLM SHAW, PRINCIPLES OF INTERNATIONAL LAW 83 (6th ed. 2008).

5. P. BIRNIE, A. BOYLE & C. REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT

(3rd ed. 2009).

6. PATRICIA W. BIRNIE ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT, (3rd ed.

1999).

7. PHILIPPE SANDS, ADRIANA FABRA, JACQUELINE PEEL, PHILIPPE SANDS & RUTH

MACKENZIE, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW 139 (3rd ed., 2012).

ESSAYS, ARTICLES AND JOURNALS

1. Bing Bing Jia, The Relation between Treaties and Customs, Chinese J.I.L(February 4,

2010).

2. European Communities- Measures Affecting Asbestos and Asbestos Containing

Products (2000) WTO Doc. WT/DS135/AB/R (Appellate Body Report).

3. ILA, Final Report of the Committee on the Formation of Customary (General)

International Law, Statement of Principles Applicable to the Formation of General

Customary International Law, Report of the Sixty-Ninth Conference, London, 2000,

Principles 20–21, 24, 26 and 27.

4. International Law Association, Formation of Customary (General) International Law,

1984.


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5. IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity

Conservation and Natural Resource Management, May 16, 2007.

6. Jacob Werksman, James Cameron & Peter Roderick, Improving Compliance With

International Environmental Law 53 (2014).

7. Judge N. Singh, Foreword, in ENVIRONMENTAL PROTECTION AND SUSTAINABLE

DEVELOPMENT: LEGAL PRINCIPLES AND RECOMMENDATIONS, xi–xii (R. D. Munro and J.

G. Lammers ed., 1986).

8. Pieter Pauw et al., Different Perspectives on Differentiated Responsibilities: A State-of-

the-Art Review of the Notion of Common but Differentiated Responsibilities in

International Negotiations, 2014.

9. Pitschas and Schloemann, WTO Compatibility of the EU Seal Regime: Why Public

Morality is Enough, Institute of Economic Law, Transnational Economic Law Research

Centre (TELC), School of Law, Martin Luther Univeristy Halle-Wittenburg.

10. Steve Charnovitz, The Moral Exception in Trade Policy, Virginia Journal of

International Law, 38 (1998), 689.

11. Ted Stein, The Approach of the Different Drummer: The Principle of the Persistent

Objector in International Law, 26 Harv. I. L. J., 457 ( 1985).

12. Tuula Honkonen, The Common But Differentiated Responsibility Principle In

Multilateral Environmental Agreements: Regulatory And Policy Aspects 112 (2009).

GATT & WTO PANEL REPORTS, AGREEMENTS AND CASES

1. Appellate Body Report, European Communities – Measures Prohibiting the Importation

and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R (May 22,

2014).


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2. GATT Panel Report- United States – Restrictions on Imports of Tuna, GATT Doc

DS29/R (1994) 33 ILM 839.

3. GATT Panel Report, Canada — Measures Affecting Exports of Unprocessed Herring

and Salmon, L/6268, adopted 22 March 1988, BISD 35S/98 [GATT Panel Report -

Exports of Unprocessed Herring and Salmon].

4. GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages,

DS23/R, adopted 19 June 1992, BISD 39S, p. 206 [ GATT Panel Report – Alcoholic

and Malt Beverages].

5. Panel Report, European Communities – Measures Prohibiting the Importation and

Marketing of Seal Products, WT/DS400/R (Nov. 25, 2013) [hereinafter EC – Seal

Products].

6. Panel Report, United States – Measure Affecting Cross Border Supply of Gambling and

Betting Services, WT/DS285/R (adopted 20 April 2005).

7. United States - Import Prohibition Of Certain Shrimp And Shrimp Products,

WT/DS58/AD/R, 12 October, 1998 [Shrimp Case].

8. WTO, Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of

the Appellate Body of 11 December 2000, WT/DS169/AB/R.

9. WTO, United States- Measures Affecting the Cross-Border Supply of Gambling and

Betting Services, Report of the Appellate Body of 7 April 2005.

JUDICIAL AND ARBITRAL DECISIONS

1. Case Concerning Military and Paramilitary Activities in and against Nicaragua

(Nicaragua v. U.S) [1986] I.C.J Rep 14. [Nicaragua].

2. Continental Shelf (Libyan Arab Jarnahiriya/Malta) [1985] I. C.J. Rep. 13.

3. Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3 (July 25).


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4. Gabc�íkovo-Nagymaros Project (Hung. v. Slov.),1997 I.C.J. 7(Sept.7). [Gabc�íkovo-

Nagymaros Project].

5. Pulp Mills Case on the River Uruguay (Argentina v. Uruguay) I.C.J. Rep. 2010, [Pulp

Mills].

6. Trail Smelter Arbitration (United States v Canada) Arbitral Trib., 3 U.N. Rep. Int’l Arb.

Awards 1905 (1941) [Trail Smelter].

7. United States - Import Prohibition Of Certain Shrimp And Shrimp Products,

WT/DS58/AD/R, 12 October, 1998 [Shrimp Case].

TREATIES AND CONVENTIONS

1. 1989 Basel Convention on the Control of Transboundary Movements of Hazardous

Wastes and their Disposal, 28 ILM 657 (1989), art. [Basel Convention].

2. 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26

(vol. I), Principle 4 [Rio Declaration].

3. Charter of the United Nations and Statute of the International Court of Justice, June

26,1945, San Francisco, art.38.[UN Charter].

4. Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish

Stocks, 34 ILM 1542 (1995), art. 6(1) [UN Fish Stocks Agreement].

5. Convention on Biodiversity, 1760 UNTS 79; 31 ILM 818 (1992).

6. Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993

UNTS 243 [CITES].

7. Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS

333; 19 ILM 15 (1980), art. 2 [CMS].

8. International Convention for the Conservation of Atlantic Tunas, 20 UST 2887

[ICCAT].


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9. International Plant Protection Convention (with annex). Rome, 6 Dec 1951, Entered into

force 3 April 1952.

10. Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3 (1987),

art. IV [Montreal Protocol].

11. United Nations Convention on the Law of the Sea, 10th December, 1982, 1833 UNTS 3,

art. 193.

12. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 27.

UN DOCUMENTS

1. 1992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26

(vol. I), Principle 4 [Rio Declaration].

2. Declaration of the United Nations Conference on the Human Environment, U.N. Doc.

A/Conf.48/14/Rev. 1(1973), Principle 1 [Stockholm Declaration].

3. G.A.Res. 68/71, ¶15, U.N. Doc. A/RES/68/71 (Dec. 9, 2013).

4. International Law Commission, Draft Articles on Responsibility of States for

Internationally Wrongful Acts, U.N. GAOR, 56th Sess.,U.N. Doc. A/RES/56/83 (2002)

Art.48(1)(b) [State Responsibility Articles].

WEBLOGS

1. Chapter 3, Harmonizing Environment and Trade Policies, Ministry of the Environment,

Government of Japan < http://www.env.go.jp/en/earth/iec/hetp/ch3.html > last accessed

on 29/08/14 at 4:50 pm.

2. ICRC, Assessment of Customary International Law, Customary IHL - Introduction.

Accessed September 5, 2014 at http://www.icrc.org/customary-

ihl/eng/docs/v1_rul_in_asofcuin.


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3. IUCN Red List of Threatened Species, Isurus Paucus" (Longfin Mako), January 31,

2006. Accessed September 5, 2014 at http://www.iucnredlist.org/details/60225/0; ICUN

Red List of Threatened Species, “Isurus Oxyrinchus” (Shortfin Mako), june 16, 2004.

Accessed September 5, 2014 at http://www.iucnredlist.org/details/39341/0 [IUCN Red

List.].

4. United Nations Environment Program Guidelines And Principles on Shared Natural

Resources

http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Inte

rest_Groups/Decision-

Making/Supplemental/Enviro_Law_Guidelines_Principles_rev2.pdf.

5. United Nations Environment Program Guidelines And Principles on Shared Natural

Resources

http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Inte

rest_Groups/Decision-

Making/Supplemental/Enviro_Law_Guidelines_Principles_rev2.pdf.

6. Humane Society International, National laws, multi-lateral agreements, regional and global

regulations on Shark Protection and Shark Finning, available at

http://www.hsi.org/assets/pdfs/shark_finning_regs_2014.pdf.


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STATEMENT OF JURISDICTION

The Federal States of Alopias and the Republic of Rhincodon have submitted the current case

concerning Questions Relating to the Protection of the Mako Sharks and Trade Restrictions

to the International Court of Justice by a Special Agreement, and have transmitted a copy

thereof to the Registrar of the Court in accordance with Article 40(1) of the Statute of the

International Court of Justice. Both parties have, therefore, accepted the jurisdiction of the

Court under Article 36, paragraph 1 of the Statute of the International Court of Justice.


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STATEMENT OF FACTS

1. The Federal States of Alopias (hereinafter, Alopias) and the Republic of Rhincodon

(hereinafter, Rhincodon) are located in the Varium Sea. The Longfin and Shortfin Mako

Sharks are found in the territorial seas and EEZs of both the countries. (R. ¶ 1)

2. Alopias and Rhincodon signed and ratified a bilateral trade agreement, called TARA. (R.

¶ 12)

3. Rhincodon enacted the Humane Fishing Act, which defined shark finning, mentioned

actions prohibited, and measures that Rhincodon’s Foreign Ministry could take to ensure

environmental stability. (R. ¶ 15)

4. Alopias enacted the ‘Shark Finning Prohibition Act’. (R. ¶ 17)

5. A diplomatic note was sent to Alopias. Rhincodon offered educational assistance to help

bring Alopian fishing to level of international norms. (R. ¶ 18)

6. After various instances of shark finning in Alopias which were reported, Alopias

acknowledged the grave situation. (R. ¶ 19)

7. Various NGOs sent petitions to the Rhincodon government stating that Alopian fishing

operations were openly spining sharks in order to be within the Alopias’ domestic law,

and Alopias agreed to prosecute individuals for spining. (R. ¶¶ 21, 23)

8. Rhincodon after repeated efforts to ensure spinning did not occur, sent a diplomatic note

to Alopias, warning of the possibility of imposition of trade restrictions on fish and fish

products. (R. ¶ 27)

9. Rhincodon implemented trade restrictions on Alopias and Alopias found the same in

violation of the TARA. Whereas Rhincodon found that they were within the ambit of

TARA. After an effort to resolve the dispute failed, both parties on the 16 June 2014

signed a Special Agreement submitting the disputes to the International Court of Justice

(R. ¶¶¶ 29, 30, 31, 33).


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ISSUES RAISED

1. ALOPIAS VIOLATED ITS CUSTOMARY OBLIGATIONS BY NOT

PREVENTING THE FINNING AND SPINING OF MAKO SHARKS.

2. ALOPIAS VIOLATED ITS TREATY OBLIGATIONS BY NOT PREVENTING

THE FINNING AND SPINING OF MAKO SHARKS.

3. ALOPIAS CANNOT PERMIT FINNING AND SPINING OF MAKO SHARKS BY

CLAIMING PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES.

4. RHINCODON HAS NOT VIOLATED INTERNATIONAL LAW BY BANNING

THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS.


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SUMMARY OF ARGUMENTS

Alopias violated International Law when it allowed or otherwise failed to prevent the

exploitative finning and spining of Mako Sharks. It violated both customary and treaty

obligations of protecting vulnerable species and ensuring their sustainable use in

advancing human activities underlying the CBD, CMS, UNCLOS, UN General Assembly

Resolutions and CMS MoU. Alopias violated its national customary obligations and

failed to respect its preventive obligation. The UNCLOS imposes stricter obligations with

regard to ‘shared’ marine living resources. Alopias has an erga omnes obligation to

protect exhaustible natural resources susceptible to depletion. Exploitative use of

vulnerable species cannot be justified under the claim of State Sovereignty. Alopias has

the responsibility to not cause transboundary harm. Further, Article 15 of the TARA

allows for Quantitative Restrictions which are necessary to protect public morals or

relating to the conservation of exhaustible natural resources. The Policy of imposing trade

restrictions in pursuance of environmental objectives has been in practice for a long time

as well as being supplemented by provisions providing for the same in several MEAs.

Moreover, the measure of imposing trade sanctions on a State as counter-measures does

not violate customary law. Thus Rhincodon has not violated international law by banning

the importation of fish and fish products from Alopias.

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ARGUMENTS ADVANCED

1. ALOPIAS VIOLATED ITS CUSTOMARY OBLIGATIONS BY NOT PREVENTING THE FINNING

AND SPINING OF MAKO SHARKS

An international custom should constitute ‘evidence of a general practice accepted as law’.1

The material of customary international law is to be looked for primarily in the actual

practice and opinion juris of States.2

A. Alopias violated Customary International Law underlying its treaty obligations

Treaties have long been considered significant in determining the existence of customary

international law because they indicate how States view certain rules of international law.3

The International Law Association suggests that a multilateral treaty may interact with

custom in four ways, including that a multilateral treaty:

a) can provide evidence of existing custom;

b) can even give rise to new custom of “its own impact” if the rule concerned is of a

fundamentally norm-creating character and is widely adopted by States with a view to

creating a new general legal obligation.4

The Court explained that the fact these principles have been codified or embodied in

multilateral conventions does not mean that they cease to exist and to apply as principles of

customary law, even as regards countries that are parties to such conventions. Such principles

continue to be binding as a part of customary international law, despite the operation of

1 Charter of the United Nations and Statute of the International Court of Justice, June 26,1945, San Francisco, Art.38. [UN Charter]. 2 Continental Shelf (Libyan Arab Jarnahiriya/Malta) [1985] I. C.J. Rep. 13. 3 ICRC, Assessment of Customary International Law, Customary IHL - Introduction. Accessed September 5, 2014 at http://www.icrc.org/customary-ihl/eng/docs/v1_rul_in_asofcuin 4ILA, Final Report of the Committee on the Formation of Customary (General) International Law, Statement of Principles Applicable to the Formation of General Customary International Law, Report of the Sixty-Ninth Conference, London, 2000, Principles 20–21, 24, 26 and 27, at 754–765.


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provisions of conventional law in which they have been incorporated.5 Even where treaties

create new law, the law so created by the treaties will undergo a process of transformation

into customary law to become law in the true sense of the word.6

When the core objectives of conventions and multilateral agreements like the CBD, CMS and

CMS MoU are read together, it is observed that protection of vulnerable species and the

sustainable use of biological resources in advancing human activities form the crux.

Considering that Alopias is a Party to all the aforementioned conventions and agreements,

there is no doubt that it has the accepted the prevention of exploitative finning and spining of

the Mako Sharks as a customary obligation.

Further, the UN General Assembly Resolution No. 68/71 calls upon States to take regulate

shark fisheries and incidental catch of sharks, in particular those conducted for harvesting

shark fins. While assessing the customary status of a rule, significance must be accorded to

the fact that the UN Charter was almost universally ratified and that relevant UN General

Assembly resolutions had been widely approved.7 If Governments choose to take their formal

stance by means of a General Assembly Resolution, there is no a priori reason why this

should not be binding on such a Government/State.8 The UN General Assembly Resolution

No. 68/71 was widely adopted by the States, without a vote, and hence, constitutes a

customary obligation.

5 Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S) [1986] I.C.J Rep 14. [Nicaragua]. 6 Bing Bing Jia, The Relation between Treaties and Customs, Chinese J.I.L(February 4, 2010) http://chinesejil.oxfordjournals.org/content/9/1/81.full#sec-5. 7 Nicaragua, supra note 5. 8 International Law Association, Formation of Customary (General) International Law, 1984. Accessed September 5, 2014 at http://www.ila-hq.org/en/committees/index.cfm/cid/30


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Furthermore, State practices in the form of national legislation and international treaties are

themselves evidence of opinio juris.9 A country’s legislation may be extra-territorial in its

range, thus affecting the interest of other States.10 The fact that Alopias adopted the SFPA in

itself indicates that prohibition of finning was recognized as a customary rule essential for the

protection of Mako Sharks.

Therefore, by permitting finning and spining (which is a practical, legal and moral equivalent

of finning) of Mako Sharks, Alopias violated its national customary law and its obligation

under Customary International Law.

Moreover, Alopias cannot claim that it is a “persistent objector” with respect to the

customary law prohibiting the finning/spining of Mako Sharks. The persistent objector

principle allows an individual state to opt out of universal rules of international law if it

persistently objected to the rule during the rule’s emergence.11 Alopias is not a persistent

objector as it ratified or accepted the aforementioned treaties and agreements, in addition to

passing a national legislation in that respect.

B. Alopias has violated the Preventive Principle.

The 1972 Stockholm Declaration and the ICJ endorsed the Preventive Approach as a

customary rule.12 Under the Preventive Principle, a state may be under an obligation to

prevent not only transboundary harm, but also damage to the environment within its own

jurisdiction, 13 including by means of appropriate regulatory, administrative and other

measures.

9 IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 380 (6th ed., 2003) [Brownlie]. 10 Supra note 8. 11 Ted Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. I. L. J., 457 ( 1985). 12 Pulp Mills Case on the River Uruguay (Argentina v. Uruguay) I.C.J. Rep. 2010, p. 14 [Pulp Mills]. 13 Judge N. Singh, Foreword, in ENVIRONMENTAL PROTECTION AND SUSTAINABLE DEVELOPMENT: LEGAL


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The obligation ‘to act with due diligence’ is an obligation which entails not only the adoption

of appropriate rules and measures, but also a certain level of vigilance in their enforcement

and the exercise of administrative control applicable to public and private operators, such as

the monitoring of activities undertaken by such operators.14

Alopias failed on two grounds: firstly, it failed to exercise vigilance in enforcing the law on

prohibition of finning on its nationals and secondly, by not preventing finning and spining of

a highly migratory species, found in the territorial seas and exclusive economic zones of

other States, it has caused transboundary harm. Therefore, Alopias failed to respect its

preventive obligation.

PRINCIPLES AND RECOMMENDATIONS, xi–xii (R. D. Munro and J. G. Lammers ed., 1986). 14 Pulp Mills, supra note 12.


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2. ALOPIAS VIOLATED ITS TREATY OBLIGATIONS BY NOT PREVENTING THE FINNING AND

SPINING OF MAKO SHARKS

A. Alopias violated the provisions of the CBD

(i) Alopias failed to observe the Precautionary Principle underlying the CBD

The CBD incorporates the Precautionary Principle, by providing that where there is a threat

of significant reduction or loss of biodiversity, measures should not be avoided or postponed

in the name of lack of full scientific certainty.15 The provisions of the CBD also extend to

marine biodiversity, and are not overridden by UNCLOS as long as they are consistent with

the ‘general principles and objectives’ of the Convention.16

The Precautionary Principle, also adopted in the UN General Assembly Resolution No.

68/71, is applicable only when: (a) the threat is uncertain; (b) there is a threat of

environmental damage and (c) the threatened harm is of an irreversible nature.17 In the

present matter, the Supreme Court of Alopias permitted spining without regard to the

Precautionary Principle. Uncertainty exists because there is no scientific data available on the

adverse impact of spining on the shark population. However, it is reasonable to expect

environmental damage since ‘legal’ spining of sharks presents a perfect alternative to skirt

the ban on finning. The purpose of incorporating the proviso of ‘fins naturally attached’ is to

deter fishermen from finning; however, permitting spining defeats this purpose. Considering

that the Mako Sharks are already vulnerable, there is no doubt that their continued finning

and spining would lead to their extinction, which is irreversible.

(ii) Alopias failed to adopt the Principle of Sustainable Use under the CBD

15Preamble to the Convention on Biodiversity, 1760 UNTS 79; 31 ILM 818 (1992) [CBD]. 16 P. BIRNIE, A. BOYLE & C. REDGWELL, INTERNATIONAL LAW AND THE ENVIRONMENT 744-752 (3rd ed., 2009). 17 IUCN Council, Guidelines for Applying the Precautionary Principle to Biodiversity Conservation and Natural Resource Management, May 16, 2007. Accessed September 5, 2014 at http://www.monachus-guardian.org/library/iucn07a.pdf


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Parties to the CBD are obligated to co-operate for the conservation and sustainable use of

Biodiversity, in respect of areas beyond national jurisdiction and on other matters of mutual

interest.18 The concept of ‘Sustainable Use’ as reflected in the CBD refers to the use of

components of biological diversity in a way and at a rate that does not lead to the long-term

decline of biological diversity, thereby maintaining its potential to meet the needs and

aspirations of present and future generations.19 The 1994 WTO Agreement commits parties to

‘the optimal use of the world’s resources in accordance with the objective of sustainable

development’.20

The freedom to fish was first justified on the basis that fish were an inexhaustible resource.21

However, today, a species of biological diversity is considered a non-renewable resource of

the international community. 22 The phrase “exhaustible natural resources” under GATT

Article XX (g) includes not only “mineral” or “non-living” resources but also living species,

which may be susceptible to depletion.23 The susceptibility of the Mako Sharks to depletion

can be noted from the fact that both Isurus oxyrinchus and Isurus paucus are listed as

Vulnerable Species in the IUCN Red List of Threatened Species. In view of the declining

population trend of these species, Range States are obligated to take conservation measures to

protect them. This is the raison d’être of the banning finning. It is a settled that once an

obligation has been domestically implemented, the party must ensure that it is complied with

18 CBD, supra note 15, art. 5 19 CBD, supra note 15, art. 2. 20 WTO Agreement: Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, THE LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 4 (1999), 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994) [WTO Agreement] 21 DOUGLAS GUILFOYLE, SHIPPING INTERDICTION AND THE LAW OF THE SEA 374 (Cambridge University Press, 2009). 22 PATRICIA W. BIRNIE ET AL., INTERNATIONAL LAW AND THE ENVIRONMENT 147 (3rd ed. 1999). 23 United States - Import Prohibition Of Certain Shrimp And Shrimp Products, WT/DS58/AD/R, 12 October, 1998 [Shrimp Case]. 24 JACOB WERKSMAN, JAMES CAMERON & PETER RODERICK, IMPROVING COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL LAW 53 (2014).


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by those within its jurisdiction and control.24 In failing to enforce the SFPA, and in defeating

the very purpose of the TARA, Alopias violated its obligation to sustainably use natural

resources.

Further, the ‘Principles on the Role of Law and Sustainable Development’ adopted at the

National Judges Meeting (World Summit on Sustainable Development, Johannesburg)

affirmed that members of the judiciary are ‘crucial for promoting compliance with, and the

implementation and enforcement of, international and national environmental law’, and

recognized that ‘rapid evolution of multilateral environmental agreements and national

statutes concerning the protection of the environment require courts to interpret and apply

new legal instruments in keeping with the principles of sustainable development’. 25 By

allowing the spining of sharks, Alopias and its Supreme Court have grossly neglected their

obligation to interpret legal instruments in accordance with principles of sustainable

development.

The concept of Sustainable Use also enshrines the Principle of Intergenerational Equity.26

The Stockholm Declaration provides that man bears ‘a solemn responsibility to protect and

improve the environment for present and future generations’. 27 The Rio Declaration

emphasizes upon the need to reconcile intergenerational equity with the right to

development.28 Alopias fails on this ground too, since it permits the exploitative use of

exhaustible resources, with no concern whatsoever towards future generations. These actions

25 PHILIPPE SANDS, ADRIANA FABRA, JACQUELINE PEEL, PHILIPPE SANDS & RUTH MACKENZIE, PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW, 139 (3rd ed., 2012) [Principles of International Law]. 26 Ibid. at 207. 27Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf.48/14/Rev. 1(1973), Principle 1 [Stockholm Declaration]. 281992 Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I), Principle 4 [Rio Declaration].


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also defeat the object and purpose of the TARA, which seeks to promote sustainable

development through proper enforcement of environmental laws and regulations.

(iii) Principle of Common but Differentiated Responsibilities does not apply to

central treaty obligations under the CBD

The Principle of Common but Differentiated Responsibilities recognizes that special needs of

developing countries must be taken into account in the development, application and

interpretation of rules of international environmental law. 29 Provisions incorporating

differential treatment can be divided into 3 categories: (a) provisions that differentiate

between industrial and developing countries with respect to the central obligations contained

in the treaty; (b) provisions that differentiate between industrial and developing countries

with respect to implementation; and (c) provisions that grant assistance, inter alia, financial

and technological.30

The CBD implicitly acknowledges this Principle and provides that developing countries have

to protect biodiversity, but developed countries have to pay for it.31 Thus, the CBD does not

absolve a developing State of its central obligation under the Convention to protect

biodiversity, but provides that developed countries grant financial/technological assistance to

such developing countries. The Global Environmental Facility handles and diverts funds of

developed countries to developing countries for the implementation of the CBD.32 Thus,

Alopias cannot violate central treaty obligations claiming differentiated responsibilities.

29 Principles of International Law, supra note 25 at 233. 30 TUULA HONKONEN, THE COMMON BUT DIFFERENTIATED RESPONSIBILITY PRINCIPLE IN MULTILATERAL ENVIRONMENTAL AGREEMENTS: REGULATORY AND POLICY ASPECTS 112 (2009). 31 Pieter Pauw et al., Different Perspectives on Differentiated Responsibilities: A State-of-the-Art Review of the Notion of Common but Differentiated Responsibilities in International Negotiations, 2014. Accessed September 5, 2014 at http://www.die-gdi.de/uploads/media/DP_6.2014..pdf 32 Decision III/8 of the Conference of Parties 3, http://www.cbd.int/decision/cop/default.shtml?id=7104


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B. Alopias violated its obligations under the CMS

The CMS obligates Range State Parties to conserve migratory species with unfavourable

conservation statuses and to prevent any migratory species from becoming endangered.33

The CMS MoU lists the Mako Sharks as migratory species whose conservation status is

‘unfavourable’. The Population trends for both species are declining, as per IUCN data.34

Both are listed as Vulnerable Species on the IUCN Red List of Threatened species, i.e., they

are on the verge of becoming Endangered. Yet, Alopias is not enforcing a ban on their

finning, and is upholding the legal validity of a loophole in its legislation. According to rules

of international law, neither a Constitutional mandate nor the enactment of a statute provides

an excuse for a treaty violation.35 Therefore, Alopias failed to perform its obligation under

the CMS MoU.

C. Alopias violated its obligations under the UNCLOS

States have the sovereign right to exploit their natural resources pursuant to their

environmental policies and in accordance with their duty to protect and preserve the marine

environment.36 Many marine living resources are migratory and do not remain within the

territorial jurisdiction of any single state. Such marine living resources are ‘shared’ within the

meaning of the 1978 Draft UNEP Principles.37 States ought to co-operate and implement the

33 Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333; 19 ILM 15 (1980), art. 2 [CMS]. 34 IUCN Red List of Threatened Species, Isurus Paucus" (Longfin Mako), January 31, 2006. Accessed September 5, 2014 at http://www.iucnredlist.org/details/60225/0; ICUN Red List of Threatened Species, “Isurus Oxyrinchus” (Shortfin Mako), june 16, 2004. Accessed September 5, 2014 at http://www.iucnredlist.org/details/39341/0 [IUCN Red List] 35 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 27 (“A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.”) [VCLT]. 36 1982 United Nations Convention on the Law of the Sea, 10th December, 1982, 1833 UNTS 3, art. 193 [UNCLOS]. 37 United Nations Environment Program Guidelines And Principles on Shared Natural Resources http://www.unep.org/training/programmes/Instructor%20Version/Part_2/Activities/Interest_Groups/Decision-Making/Supplemental/Enviro_Law_Guidelines_Principles_rev2.pdf.


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measures required for the conservation and development, and equitable exploitation, of those

resources, taking into account any international agreement in force between them. 38

The Mako Sharks are listed as “Highly Migratory Species” under the UNCLOS. Both

Rhincodon and Alopias ought to preserve the shared stocks of Mako Sharks and make

sustainable and optimal use of the marine living resources, both in their territorial waters and

in the exclusive economic zones.

There is no denying that a coastal state has within the EEZ ‘sovereign rights for the purpose

of exploring and exploiting, conserving and managing the natural resources, whether living

or non-living’.39 However, where the same stock or stocks of associated species occur within

the exclusive economic zones of two or more coastal States, these States shall seek, either

directly or through appropriate sub-regional or regional organizations, to agree upon the

measures necessary to co-ordinate and ensure the conservation and development of such

stocks.40

Further, Articles 6 and 7 of the 1995 Fish Stocks Agreement provide for the conservation

measures that ought to be adopted by States in respect of shared stocks within their territorial

waters as well. Article 6 prescribes the adoption of the Precautionary Approach in the

conservation of highly migratory fish stocks41 whereas Article 7 obligates States to cooperate

and promote the objective of optimum utilization of such stocks throughout the region, both

within and beyond the areas under national jurisdiction.42

38 Fisheries Jurisdiction (U.K. v. Ice.), 1974 I.C.J. 3 (July 25). 39 UNCLOS, supra note 36, Art. 56(1). 40 UNCLOS, supra note 36, Art. 63. 41United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 34 ILM 1542 (1995), art. 6(1) [UN Fish Stocks Agreement]. 42 Ibid, art. 7(1)(b).


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In view of these obligations, Rhincodon and Alopias agreed to prohibit shark finning.

However, continued instances of shark finning by nationals of Alopias and the legalization of

spining of sharks, which is for all practical purposes an equivalent of finning, have harmed

Rhincodon. When a state signs a treaty, the Vienna Convention on the Law of Treaties

imposes a legal obligation on the signatory state not to defeat the treaty’s object or purpose.43

The actions of Alopias, however, are in utter disregard of the obligations under the UNCLOS.

43 VCLT, supra note 35, Art. 18.


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3. ALOPIAS CANNOT PERMIT FINNING AND SPINING OF MAKO SHARKS BY CLAIMING

PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES

While the principle of State Sovereignty allows states to conduct or authorise such activities

as they choose within their territories, including activities that may have adverse effects on

their own environment 44 , it is a rule of customary law 45 that States are subject to

environmental limits in the exercise of their rights under the principle of permanent

sovereignty over natural resources. The Court declared that any environmental damage of a

far-reaching and irreversible nature is an obligation erga omnes.46 Once an obligation is

recognized as erga omnes, any State may invoke the responsibility of another for its breach.47

Exploitative use of vulnerable species leads to far-reaching environmental damage, and

therefore, it cannot be justified under the principle of State Sovereignty.

A. Alopias’s actions cause Transboundary Harm

States have the responsibility ‘to ensure that activities within their jurisdiction or control do

not cause damage to the environment of other States or of areas beyond the limits of national

jurisdiction’.48 This principle has also been recognized by the ICJ. 49 Considering that the

Mako Sharks are found in the territorial waters and exlusive economic zones of both Alopias

and Rhincodon, there is no doubt that their continued finning and spining by Alopias would

harm Rhincodon. This submission is supported by the judgment of the WTO Appellate

44 Principles of International Law, Supra note 25 at 191. 45 Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons, I. C.J. Reports 1996, p. 226 46 Gabc�íkovo-Nagymaros Project (Hung. v. Slov.),1997 I.C.J. 7(Sept.7). [Gabc�íkovo-Nagymaros Project]. 47 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, U.N. GAOR, 56th Sess.,U.N. Doc. A/RES/56/83 (2002) Art.48(1)(b) [State Responsibility Articles]. 48 Principles of International Law, Supra. note 25, at 435. 49 Trail Smelter Arbitration (United States v Canada) Arbitral Trib., 3 U.N. Rep. Int’l Arb. Awards 1905 (1941) [Trail Smelter].


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Body.50 Thus, Alopias is violating the Principle of State Responsibility and its obligations

under the CBD by causing transboundary harm.

50Shrimp Case, Supra note 23.


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4. RHINCODON HAS NOT VIOLATED ITS OBLIGATIONS UNDER INTERNATIONAL LAW BY

BANNING THE IMPORTATION OF FISH AND FISH PRODUCTS FROM ALOPIAS

It has been contended by the applicants that the import embargo on Alopian fish and fish

products violates Rhincodon’s international law obligations. However, this measure is

justifiable under litras (a) and (g) of Article 15 of TARA. Moreover, such trade sanctions to

tackle environmental problems have been legitimised through extensive state practice

accompanied with the relevant opinion juris as has been set forth here below. Arguendo, the

doctrine of countermeasures can be invoked to preclude the wrongfulness of Rhincodon.

A. The trade sanction can be justified under Article 15 (a) of TARA

Article 15(a) of TARA permits the invocation of trade restrictive measures which are

necessary to protect public morals. This provision, being similarly worded to Article XX (a)

of GATT, reliance may be placed upon decisions of GATT/WTO bodies. In the context of

Article XX (a), a Member has to show firstly, that, the purpose of measure was "to protect

public morals"; and, secondly, that the measure is “necessary”.51

A.1. The measure was to protect the people’s moral concerns about shark cruelty

The trade embargo was implemented so as to protect the people in Rhincodon from being

exposed to shark products harvested through techniques (such as spining and finning) which

inflict excessive animal suffering.

a. Concern for shark welfare is within Rhincodon’s sphere of public morality

The Appellate Body’s report in the EC – Seal Products52 dispute clearly shows that animal

welfare is an aspect of public morals under GATT Article XX(a). The concern for inhuman

51 WTO, United States- Measures Affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body of 7 April 2005, ¶ 305. 52 Appellate Body Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/AB/R and WT/DS401/AB/R (May 22, 2014).


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treatment of animals is seen by many societies as being part of their system of public

morals. 53 Presently, the ban has been imposed following the widespread protests by

environmental and animal-welfare non-governmental organizations over continued finning

and spining of mako sharks by Alopias fishing vessels. 54 Thus, the measure has been

designed to protect the moral conscience of the people of Rhincodon.

b. The moral concern for shark welfare does not stand dilated merely due to the

practice of Concentrated Animal Feeding Operations

It has been contended by the applicant that the presence of ‘Concentrated Animal Feeding

Operations’ in Rhincodon has the effect of dilating the moral concerns of the public about

animal welfare.55 However, this argument is not tenable in view of the ‘EC-Seal’ decision

wherein the Panel rejected a similar contention on the ground that the conditions of different

animal harvesting techniques are so different as to render the animal welfare aspects of the

respective techniques different. 56 CAFO refer to a commonly employed technique of

industrial production of livestock products through breeding and harvesting farm animals in

confined spaces. Thus, the environmental conditions and level of suffering inflicted being

radically different, there can be no comparison as to their implications on society’s tolerance

towards animal cruelty. This is buttressed by the fact that countries such as the USA which

permit CAFO prohibit shark finning altogether. Thus, merely because CAFO has been

allowed in Rhincodon, it cannot be said that shark welfare has not crystallised as a public

moral in society.

53 Steve Charnovitz, The Moral Exception in Trade Policy, Virginia Journal of International Law, 38 (1998), 689. 54 Record, ¶ 21. 55 Record, ¶ 30. 56 Panel Report, European Communities – Measures Prohibiting the Importation and Marketing of Seal Products, WT/DS400/R (Nov. 25, 2013), ¶ 7.409.


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Moreover, it is within the margin of appreciation of individual states to determine whether a

moral concern has become a public moral or not.57 As has already been established there

exists such a moral concern in society which is sufficient to bring it within the fold of the

public morality exception in Article 15(a).

A.2. The measure was ‘necessary’ to achieve the policy object

The AB has elucidated that ‘necessity of a measure’ would have to be assessed against three

criteria,58 namely: (i) the importance of the policy objective pursued; (ii) the contribution of

the measure to the objective pursued; and (iii) the absence of a ‘readily’ available alternative

measure which is less trade-restrictive.59

The importance of the policy object can be gauged from the fact that is agreed to by the

General Assembly in its Resolution60 and supported by extensive state practice.61 The trade

restrictions would compel Alopias to amend its laws to effectively ban shark finning and thus

stop the inhumane killing of sharks. The measure is restrictive only to the extent that it

prohibits the import of fish and fish products only. Also, there is no readily available

alternative measure as all other measures such as offers to provide educational programs,

negotiations regarding developmental assistance in law enforcement and mediation were all

demonstrated to be fruitless.

57 Panel Report, United States – Measure Affecting Cross Border Supply of Gambling and Betting Services, WT/DS285/R (adopted 20 April 2005), ¶ 6.461. 58 WTO, Korea-Measures Affecting Imports of Fresh, Chilled and Frozen Beef, Report of the Appellate Body of 11 December 2000, WT/DS169/AB/R, ¶ 161. 59 Pitschas and Schloemann, WTO Compatibility of the EU Seal Regime: Why Public Morality is Enough, Institute of Economic Law, Transnational Economic Law Research Centre (TELC), School of Law, Martin Luther Univeristy Halle-Wittenburg. 60 G.A.Res. 68/71, ¶15, U.N. Doc. A/RES/68/71 (Dec. 9, 2013). 61 Humane Society International, National laws, multi-lateral agreements, regional and global regulations on Shark Protection and Shark Finning, available at http://www.hsi.org/assets/pdfs/shark_finning_regs_2014.pdf (last visited October 3, 2013).


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B. The measure, being related to the conservation of exhaustible natural resources,

can be justified under Article 15(g) of TARA

(i) Mako sharks can be classified under the head of exhaustible natural resources

The WTO Appelate Body, in its report on US—Shrimp62, held that the term exhaustible

natural resources should not be confined to non-living resources. The criterion which

distinguishes exhaustible from non-exhaustible-natural-resources is, in the AB’s view,

whether the item at hand is being depleted faster than it is being reproduced. The AB went on

to state that sea turtles, a living organism, could be regarded as an exhaustible-natural-

resource since a host of international conventions and bodies recognise sea turtles as

endangered species.63 Similarly, as both the species of mako sharks have been categorised in

the ‘Vulnerable’ list of the IUCN’s Red-list and their populations clasified as ‘Decreasing’64,

they can be regarded as exhaustible natural resources.

(ii) The measure can have mixed motives as long as conservation is the primary

object

Article 15 (g) only requires that the concerned measure is “relating to the conservation” of

exhaustible living resources. In the context of the similarly phrased Article XX(g), the GATT

Panel65 has interpreted this phrase to mean that the import measure should be “primarily-

aimed” at addressing a conservation goal and invoked in conjunction with comparable

restraints on domestic production in order to be justified. This permits “mixed motives” as

62Shrimp Case, supra note 23, ¶ 130. 63Ibid,¶¶ 128, 130 and 153.

64IUCN Red List, Supra note 34. 65GATT Panel Report, Canada — Measures Affecting Exports of Unprocessed Herring and Salmon, L/6268, adopted 22 March 1988, BISD 35S/98 [GATT Panel Report - Exports of Unprocessed Herring and Salmon].


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long as the main purpose of a measure was environmental.66 Clearly, the main purpose of the

trade sanction is to reduce the demand for Alopian fish and fish products thereby compelling

Alopian fishermen to adopt more sustainable practices which will bolster the conservation

status of mako sharks.

(iii) The measure has been taken in conjunction with restrictions on domestic

production and consumption

Article 15 (g) of the TARA has one qualification i.e., the measure should be made effective in

conjunction with restrictions on domestic production. In the Canada-Herring and Sockeye

Salmon case67, concerning the similarly phrased Article XX(g), the Panel interpreted this

phrase to mean and include comparable restrictions on domestic consumption and

production.68 In other words, this qualifying phrase can be said to be a “national treatment”

provision.

The Appellate Body has stated that the purpose of the national treatment provisions is to

avoid protectionist domestic measures.69 Elaborating further on the issue, the Panel clarified

that every measure which was discriminatory need not be illegal under the GATT as long as it

did not confer on the domestic industry any sought of protectionism.70 The measure of

imposing trade restrictions on fish and fish products by Rhincodon on Alopias was applied

for the sole legitimate purpose of conservation. No motives such as ‘protectionism’ were

involved. Moreover, Rhincodon, by enacting the Humane Fishing Act, which bans shark

66DANIEL C. ESTY, GREENING THE GATT: TRADE, ENVIRONMENT AND THE FUTURE 267 (Peterson Institute, 1994) [Greening the GATT]. 67GATT Panel Report - Exports of Unprocessed Herring and Salmon, Supra note 65.

68Greening The GATT, Supra note 66, p. 49. 69European Communities- Measures Affecting Asbestos and Asbestos Containing Products (2000) WTO Doc. WT/DS135/AB/R (Appellate Body Report), ¶ 97. 70GATT Panel Report, United States – Measures Affecting Alcoholic and Malt Beverages, DS23/R, adopted 19 June 1992, BISD 39S, p. 206.


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finning and even consumption of shark fins, has imposed similar restrictions on domestic

production and consumption of shark fins.

(iv) The measure is not of an extra-territorial design since mako sharks migrate to

Rhincodon waters

It has been the applicant's contention that the measure is of an extra-territorial design as it is

meant to tackle the problem of overexploitation of mako sharks in Alopian waters. However,

this contention does not hold good in view of the US-Shrimp case wherein the Appellate

Body observed that the fact that turtles are migratory species, which spend part of their life-

cycles in United States waters, provides for a sufficient nexus with USA.71 Similarly, as

Rhincodon comes within the range of mako sharks,72 the legislation cannot be struck down

on the pretext of extra-territoriality.

C. The policy of applying trade sanctions in pursuance of environmental objectives

does not violate customary international law.

The policy of imposing trade sanctions in the pursuance of environmental objectives has

crystallised as legitimate within the sphere of CIL.

(i) There exists enough evidence of state practice to justify the Policy

Trade restrictive measures play a significant role in addressing environmental problems.73

The Montreal Protocol74, the Basel Convention75, the CITES76, the ICCAT, 196677 and the

71Shrimp case, Supra note 23, Chapter VI, Part-B, ¶ 7. 72Record, ¶ 1. 73Chapter 3, Harmonizing Environment and Trade Policies, Ministry of the Environment, Government of Japan < http://www.env.go.jp/en/earth/iec/hetp/ch3.html > last accessed on 29/08/14 at 4:50 pm. 74Montreal Protocol on Substances that Deplete the Ozone Layer, 1522 UNTS 3 (1987), art. IV [Montreal Protocol] 751989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 28 ILM 657 (1989), art. [Basel Convention] 76Convention on International Trade in Endangered Species of Wild Fauna and Flora, 993 UNTS 243 [CITES]


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IPPC, 195178 are all examples of multilateral agreements with provisions dealing with trade

restrictions.

International Organisations, in turn, are also instrumental in the creation of customary law.79

The mere fact that the WTO has constituted a Committee on Trade and Environment with the

mandate of ensuring that trade liberalisation does not stand in the way of environmental

protection is an important pointer in this respect.80The WTO panels have repeatedly affirmed

trade sanctions in pursuance of legitimate environmental objectives. For instance, take the

case of USA applying trade restrictions for the conservation of Atlantic Tuna81. Also, in

another case, the body approved US trade restrictions to protect sea turtles which were

getting caught as by-catch along with shrimps.82

(ii) Opinio Juris does exist to supplement the Policy.

The actions of Rhincodon comply with customary law in that the Draft Articles on the

Responsibility of States for Internationally Wrongful Acts allow for ‘counter-measures’ under

Article 49. The ILC’s drafts constitute evidence of custom, contribute to the corpus of usages

which may create new law and evidence the opinion juris83. Trade sanctions are the most

available form of countermeasures and trade thus plays a central role in environmental

77International Convention for the Conservation of Atlantic Tunas, 20 UST 2887 [ICCAT] 78International Plant Protection Convention (with annex). Rome, 6 Dec 1951, Entered into force 3 April 1952 79MALCOLM SHAW, PRINCIPLES OF INTERNATIONAL LAW 83 (6th ed, Cambridge University Press, 2008).[Malcolm Shaw]. 80WTO Secretariat, ‘Trade and Environment at the WTO’, April 2004, at 21. 81GATT Panel Report- United States – Restrictions on Imports of Tuna, GATT Doc DS29/R (1994) 33 ILM 839 ¶ 3.10.

82Shrimp Case, Supra note 23. 83Malcolm Shaw, Supra note 79 at 83.


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enforcement.84Moreover, this Court upheld the validity of such unilateral economic sacntions

in the Military and Paramilitary Activities case.85

4. Arguendo, the doctrine of necessity can be used to preclude wrongfulness of Rhincodon

The Draft Articles by the ILC, Article 2586 codifies customary international law regarding

necessity. Its essentials can be summarised as (1) that there must be an “essential interest” of

the State invoking necessity; (2) that interest must have been threatened by a ‘grave and

imminent peril’; (3) the act in question must have been the “only way” of safeguarding that

interest; (4) the act must not have ‘seriously impaired an essential interest of the State

towards which the obligation existed’; and (5) the State invoking necessity must not have

‘contributed to the occurrence of the state of necessity.

Following the criteria mentioned above, for there to be “essential interest” involved a

“jurisdictional nexus” must be proved87, which was present in the case at hand. A “peril”

appearing in the long term might be held to be “imminent” as soon as it is established’, since

‘the realisation of that peril, however far off it might be, is not thereby any less certain and

inevitable’. The ‘only way’ condition of the necessity doctrine suggests that there is a duty to

negotiate prior to employing unilateral trade measures in circumstances where time permits

this course of action.88 As the aforesaid criteria have been fulfilled in the present case,

‘necessity’ can be used to preclude wrongfulness on the part of Rhincodon.89

84Mary Ellen O'Connell, Using Trade to Enforce International Environmental Law: Implications for United States Law, 1 Ind. J. Global L. Stud. 273 (1994). 85Nicaragua, Supra note 5. 86State Responsibility Articles, Supra note 47, art. 25 accompanying commentary, Report of the Commission to the General Assembly on the work of its fifty - third session, Yearbook of the International Law Commission, Volume 11, Part 2 (2001), 72. 87Shrimp Case, Supra note 23, Chapter VI, Part-B, ¶ 7. 88Gabčíkovo–Nagymaros Project, Supra note 46, ¶ 62. 89Gabčíkovo–Nagymaros Project, Supra note 46, ¶ 54.


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CONCLUSION AND PRAYER

In light of the questions presented, arguments advanced and authorities cited, the agent for

the Respondent State prays before this Hon’ble Court, that it may be pleased to adjudge and

declare that:

1. That Alopias has violated international law in as much as it failed to prevent the finning

and spinning of Mako sharks.

2. That Rhincodon has not violated international law by banning the importation of fish and

fish products from Alopias.

OR

may pass any order or judgment as may be deemed necessary based on the circumstances of

the case.

For which the Agents of the Respondent shall pray duty-bound as ever most humbly to this

Honourable Court.

Sd//_________________________

(Agents for the Respondent)

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