I.

ALOPIAS HAS NOT VIOLATED INTERNATIONAL LAW WITH RESPECT TO

FINNING AND SPINING OF MAKO SHARKS BY ITS NATIONAL WITHIN ITS
TERRITORIAL WATERS AND EXCLUSIVE ECONOMIC ZONE
A. Alopias has not violated its treaty obligations
Alopias has been diligent in complying with its treaty obligations, especially those
involving the exploitation of its own natural resources. Alopias is concerned with the
environment, and has enacted a law for the protection of mako sharks.1
1.Alopias has complied with UNCLOS and CBD obligations
Under Article 56 of the United Nations Convention on the Law of the Sea,
In the exclusive economic zone, the coastal State has:(a) sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural
resources, whether living or non-living, of the waters superjacent to the seabed
and of the seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of
energy from the water, currents and winds;2
Alopias is rightfully exploiting its natural resources within its territory and exclusive
economic zone. The shark harvesting is taking place within the exclusive economic zone of
Alopias and nowhere else.3
The Convention on Biological Diversity reaffirms the State's sovereign right to exploit
their own resources pursuant to their own environmental policies, in Article 3.4
More importantly, Alopias is a developing nation5 which makes Article 20 of CBD applicable. It
is stated that, it will take fully into account the fact that economic and social development and
eradication of poverty are the first and overriding priorities of the developing country Parties. 6
Alopias has declined to amend the Shark Finning Prohibition Act, citing economic development
1 R at 17
2 United Nations Convention on the Law of the Sea, art.56 (1) (a) [UNCLOS]
3 R at 28
4 Convention on Biological Diversity, art.3 [CBD]
5 R at 2
6 CBD, art. 20

and budget concerns as more pressing matters 7

The economy growth is always the attention focal point to every country.8 Economic
development aims to influence the growth and restructuring of a communitys economy to
enhance its well-being, which is achieved through creation and retention of job, wealth, and
improving the quality of life.9
Alopias recognizes the importance of environmental protection, but economic
development is its priority as a developing nation.
2.Alopias is not bound by CMS MOU
The Memorandum of Understanding on the Conservation of Migratory Sharks
states in Section 1 that the said memorandum is a non-legally binding instrument. The parties'
intention not to be legally bound by the MOU was apparent.
An undertaking or commitment that is understood to be legally binding carries
with it both the obligation of each party to comply with the undertaking and the right of each
Party to enforce the obligation under international law.10
Since the CMS MOU is not legally binding, Rhincodon's contention that Alopias has
violated international law is incorrect.
3.Alopias has not violated its obligations in TARA
The Trade Agreement between Rhincodon and Alopias (TARA) includes
statements to promote broad-based economic development in order to reduce poverty and
preserve their flexibility to safeguard the public welfare.11 Economic development is indeed the
7 R at 26
8 Longlong Guo and Hongbo Ma, Conflict between Developing Economic and Protecting the Environment, Vol.1,
No.3. 91 (2008)
9 What is Economic Development, available at:
http://www.iedconline.org/web-pages/inside-iedc/about-iedc/#ED_Defined
10 International Documents of a Non-Legally Binding Character, available at:
http://www.state.gov/documents/organization/65728.pdf
11R at 13

priority of Alopias and not the prohibition of spining of mako sharks. The TARA also provides
that the parties resolved to enhance and enforce environmental laws and regulations, and to
strengthen cooperation on environmental matters.12 The Alopias Congress has in fact enacted
the Shark Finning Prohibition Act in 2002, after Rhincodon initiated negotiations with Alopias. 13
It should be noted that mako sharks are not endangered species. The longfin and shortfin
mako sharks are not listed in the Appendix of Convention on International Trade in Endangered
Species of Wild Fauna and Flora (CITES). 14 The IUCN Red list has not assessed the mako shark
as an endangered species.
The Alopias domestic law prohibits shark finning. Shark finning is the taking of a shark,
removing the fin or fins (whether or not including the tail) of a shark, and returning the
remainder of the shark to the sea. 15 Meanwhile, shark spining involves leaving the fins attached
to the shark's spine, rather than removing them completely. 16The Shark Finning Prohibition Act
in 2002, allowed the fins which were naturally attached to the shark, to be landed in the
Alopias territory. 17The trial judge of Alopias ruled that the fins of spined sharks remained
naturally attached to the shark and that therefore spining was not prohibited under Alopias law,
which was affirmed by the Alopias Supreme Court. 18
Shark finning is different from spining. The maxim expressio unius est exclusio alterius
which means that the expression of one thing is the exclusion of another, is applicable. Also,
there should be strict construction in the interpretation of criminal statutes. It means that close
questions as to the criminal statute's coverage are to be resolved in favor of the accused.19
12 Ibid
13R at 17
14R at 7
15R at 15
16R at 22
17R at 17
18R at 24
19 Sam J. Friedman, Criminal Law Strict Construction of Penal Statutes, 20 La. L. Rev. at 601 (1960)

Criminal statutes should be strictly construed against the government. Strict construction should
be applied in order to give notice to people of ordinary understanding, of what conduct is
prescribed as criminal.20

B. Alopias has not violated customary international law

Alopias disagrees that the shark finning prohibition is part of customary
international law.21
Customary International Law is a general practice accepted as law.22 A custom is a
practice which has grown up between states and has become to be accepted as binding by the
mere fact of persistent usage over a long period of time. 23There should be general and consistent
practice of states followed by them from a sense of legal obligation, also known as opinio juris.24
The ten other countries in the Varium Sea region have been largely silent on the issue of
shark finning and spining. 25It was only during the UN General Assembly that they aligned with
Rhincodon.26 Their silence for a long period of time, prior to the UN General Assembly only
proves that the prohibition of shark finning and spining, is not part of the custom in the Varium
Sea Region.
Even if the practice of shark finning/spining has not been prevalent among other nations
in the Region27, the psychological element28 which is opinio juris, is lacking. The infrequency
of shark finning/spining in the Region is not due to a sense of legal obligation.
20 Ibid
21 Clarifications to the Record at 3
22 Statute of the International Court of Justice, art. 38 (b)
23 Isagani A. Cruz, International Law at 22 (2000)
24 Restatement of the Law, Third, Foreign Relations Law of the United States 102 (2) (1987)
25 Clarifications to the Record at 47
26 Ibid
27 Clarifications to the Record at 10
28 Jack L. Goldsmith and Eric A. Posner, A Theory of Customary International Law, at 5

II. RHINCODON VIOLATED INTERNATIONAL LAW BY IMPOSING TRADE

RESTRICTIONS ON IMPORTATION OF FISH AND FISH PRODUCTS
AGAINST ALOPIAS AND RHINCODON CANNOT RAISE THE GROUND OF
PROTECTION OF PUBLIC MORALS AS DEFENSE TO THE UNJUSTIFIABLE
RESTRICTION

Over the years, trade agreements whether on bilateral or multilateral level

amongst geographical groupings of two or more states have been gradually evolving.
Development of the trade agreements at a regional level defines the present international
trading environment. Studies show that a Free Trade Agreement (FTA) has become a
usual resort in eliminating and reducing trade barriers which includes quantitative
restrictions on goods and services transacted between contracting parties.29
The FTA between Federal States of Alopias and the Republic of Rhincodon is
recognized as the Trade Agreement between Rhincodon and Alopias (TARA) which has
been registered in accordance with Article 102 of the Charter of the United Nations.30 It
was promulgated to strengthen the bilateral relations between the two parties involved.31
It strictly provides quantitative restrictions as regards to trade, specifically, Article 5 of
TARA reads:
No prohibitions or restrictions (other than duties, taxes, or similar charges),
whether made effective through quota, import or export licenses, or other
measures shall be instituted or maintained by any Party regarding the importation
of any product from the territory of any other Party.32
It must be noted that Rhincodon has been the largest trading partner of Alopias with
approximately 30% of its exports being sent to the former33 and that agriculture and
fishing are the two most significant economic activities in Alopias. This could also mean
that the Federal States of Alopias is one of the largest contributors to the Republic of
Rhincodon when it comes to fish and fish products. Hence, allowing Rhincodon in
imposing unjustifiable trade restrictions will not just result to a huge economic crisis in
29 The role of bilateral and regional trade agreements in the modernization of taxation and revenue policy in
developing countries, Leigh Obradovic, World Customs Journal (November 14, 2012) Volume 6, Number 2 Page
73
30 R. at 14
31 R at 13
32 R at 13
33 R at 2

Alopias but an ample violation of both the Bilateral Trade Agreement between Rhincodon
and Alopias (TARA) and the Vienna Convention on Law of Treaties.
A. The Trade Restrictions Imposed by Rhincodon is in violation of both the
Bilateral Trade Agreement between Rhincodon and Alopias (TARA) and the
Vienna Convention on Law of Treaties
The trade restrictions imposed by the Republic of Rhincodon is under the
prohibited actions stated in the Trade Agreement between Rhincodon and Alopias
(TARA), Article 5 of TARA in particular.34 The object and purpose of such restriction is
stated in the initial paragraph of TARA. Particularly, the relevant portion of TARA
provides that: The parties are bound and to resolve measures to strengthen the special
bonds of friendship and cooperation among their peoples; contribute to the harmonious
development and expansion of regional trade and to provide a catalyst to broader
international cooperation; ensure a predictable commercial framework for business
planning and investment; Promote broad-based economic development in order to reduce
poverty.35 The rule in interpreting the object and purpose of a treaty is stated in the
Vienna Convention on the Law of Treaties. Article 31 is titled General Rule of
Interpretation. It begins:
A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context
and in light of its object and purpose.36
Clearly, the aggressive acts of Republic of Rhincodon in imposing trade restrictions
against Federal States of Alpoias defeat the object and purpose of the treaty signed.

34 R at 13
35 R at 6
36 Vienna Convention on the Law of Treaties art 31 (1), May 23 1969

Furthermore, Article 18 of the Vienna Convention on the Law of Treaties provides for the
Interim Obligation of states who are bound in the Treaty signed:
Obligation not to defeat the object and purpose of a treaty prior to its entry
into force
A State is obliged to refrain from acts which would defeat the object and
purpose of a treaty37
The above mentioned article in Vienna Convention on Law of Treaties prohibits contracting
states from undertaking any action that would defeat the object and purpose of a treaty. Broadly,
the first sentence of Article 18 impliedly states that the parties have the obligation not to defeat a
treatys object and purpose and subsections (a) and (b) define when the obligation may apply.
Article 18 is known as the interim obligation because it governs state conduct in the period
between a state signaling its intention to join a treaty by signing and the moment the state either
becomes bound to the treaty or makes clear of its intention not to become a party to the treaty.38
Consequently, the signature and ratification of both the contracting parties in this case are
sufficient to bind the states to the treaty and violation of the same will result to a breach of treaty.
1. Violation of other principles of GATT and International law
The World Trade Organization in which Republic of Rhincodon is an active
member 39 provides general agreements which include numerous provisions
giving developing and least-developed countries special rights or extra
leniency - special and differential treatment. 40 The special and different
treatment is often found in an Enabling Clause. Under the Enabling Clause,
tariff preferences granted by developed countries must not discriminate among
37 Vienna Convention on the Law of Treaties art 18, Interim Obligation of States, May 23 1969
38 Vanderbilt Journal of Transnational Law: The Object and Purpose of a Treaty: Three Interpretive Methods David
S. Jonas et al VOLUME 43 NUMBER 3 May 2010
39 R at 11
40 World Trade Organization, UNDERSTANDING THE WTO: DEVELOPING COUNTRIES
[http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm]

developing countries, except for the possibility of providing more generous

preferences to all least-developed countries.41 We must distinguish that
Republic of Rhincodon is a developed country42 whereas Federal States of
Alopias is a developing country.43
The General Agreement on Tariffs and Trade has a special section (Part
IV)44 on Trade and Development which includes provisions which recognizes
the important role of the developed countries as regards to developing
countries improvement. It also states that developed countries must not
expect reciprocity. GATT Article 36 states that the "less-developed
contracting parties expect that their capacity to make contributions or
negotiated concessions or take other mutually agreed action under the
provisions and procedures of the General Agreement would improve with the
progressive development of their economies and improvement in their trade
situation, and they would accordingly expect to participate more fully in the
framework of rights and obligations under the General Agreement.45
In addition, the objectives of the members signing the agreement included raising
living standards and promoting full employment by reducing trade barriers and
eliminating discriminatory trade practices.46

41 The Status of Trade Preferences in WTO by FAO Corporate Document Repositroy - Economic and Social
Development Department [http://www.fao.org/docrep/004/y2732E/y2732e08.htm]
42 R at 3
43 R at 2
44 THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT 1947)PART IV TRADE AND
DEVELOPMENT Article XXXVI Principles and Objectives
45 THE GENERAL AGREEMENT ON TARIFFS & TRADE: A Sketch of GATT Articles, January 19, 2004;
Citing the Tokyo Round Framework Agreement
[http://www.commercialdiplomacy.org/cd_dictionary/dictionary_tariffs.htm#part%204]
46 THE GENERAL AGREEMENT ON TARIFFS AND TRADE (GATT 1947) PART I Article I General MostFavoured-Nation Treatment

GATT and the General Agreement on Trade in Services (GATS) allow

developing countries some preferential treatment. This decision by signatories to
the General Agreement on Tariffs and Trade (GATT CONTRACTING
PARTIES) in 1979 allows derogations to the most-favored nation (nondiscrimination) treatment in favor of developing countries. In particular, its
paragraph 2(c) permits preferential arrangements among developing countries in
goods trade. It has continued to apply as part of GATT 1994 under the WTO.47
Moreover, other principles in International Law such as those laid down in
Rio Declaration in 1992 48 particularly Principle 12 provides:
Trade policy measures for environmental purposes should not constitute a
means of arbitrary or unjustifiable discrimination or a disguised restriction
on international trade. Unilateral actions to deal with environmental
challenges outside the jurisdiction of the importing country should be
avoided.49
Therefore, under the foregoing cases in point, Republic of Rhincodon is in breach
of its obligations to the World Trade Organization and General Agreement on
Tariffs and Trade and other principles of International Law.

2. Pacta Sunt Servanda

The principle of pacta sunt servanda is provided in Article 26 of the Vienna
Convention on the Law of Treaties (1969) as follows:
Every treaty in force is binding upon the parties to it and must be
performed by them in good faith.
47 World Trade Organization, UNDERSTANDING THE WTO: DEVELOPING COUNTRIES
[http://www.wto.org/english/thewto_e/whatis_e/tif_e/dev1_e.htm]
48 REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT* (Rio
de Janeiro, 3-14 June 1992)
49 REPORT OF THE UNITED NATIONS CONFERENCE ON ENVIRONMENT AND DEVELOPMENT* (Rio
de Janeiro, 3-14 June 1992) Principle 12

10

This principle establishes one of the basic principles of international law as

proclaimed by the Declaration on Principles of International Law Concerning
Friendly Relations and Cooperation among States in Accordance with Charter of
United Nations. The Declaration reads:
The principle that States shall fulfil in good faith the obligations assumed
by them in accordance with the Charter
Every State has the duty to fulfil in good faith the obligations assumed by
it in accordance with the Charter of the United Nations.
Every State has the duty to fulfil in good faith its obligations under the
generally recognized principles and rules of international law.
Every State has the duty to fulfil in good faith its obligations under
international agreements valid under the generally recognized principles
and rules of international law.
Where obligations arising under international agreements are in conflict
with the obligations of Members of the United Nations under the Charter
of the United Nations, the obligations under the Charter shall prevail.50
In the action of Rhincodon in imposing trade restrictions against Alopias,
it was made inconsistent with the treaty signed by both parties. More accurately, it
violated the principles of pacta sunt servanda and the rules of good faith. The
restriction is contrary to such principles because the agreements signed emanated
from trust and observance of the rules of good faith.
B. The Contention of Rhincodon in claiming the General Exceptions on Trade
Regulations found in TARA which is the Necessity to protect Public Morals is
Unjustifiable

50 United Nations General Assembly 2625 (XXV). Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, October
24 1970

11

The origin of the general exception on trade found in Article 15 (a) of TARA51
which allows restrictions on the basis of necessity to protect public morals is
taken from GATT Article 20 (a).52 However, Rhincodon cannot hold on to that
claim. This is on the basis of the same GATT Article, first sentence which reads:
Subject to the requirement that such measures are not applied in a manner
which would constitute a means of arbitrary or unjustifiable
discrimination between countries where the same conditions prevail, or a
disguised restriction on international trade
Republic of Rhincodon did not provide satisfactory evidence in proving that
Shark Spining and even fishing sharks at the very least is against public morals.
The restriction imposed is disguised by the unique and emerging clause found in
the GATT, notably known as the Public Morals Exceptions Clause
1. Protection of Public Morals
The term Public Morals was labeled by Steve Charnovitz as an amorphous
term covering a wide range of activities.53 Even granting that the Public
Morals clause has been included in numerous treaties and became a standard
part of bilateral free trade agreements,54 still, it does not have a concrete
definition or juridical clarification. However, on similar cases where the
Public Morals exception were raised, it is shown that for the exception to be
valid, it must be founded on the ground that there is an extent of necessity
51 R at 13 page 7
52 THE GENERAL AGREEMENT ONTARIFFS AND TRADE(GATT 1947) Article XX: General Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of
arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised
restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or
enforcement by any contracting party of measures: (a) necessary to protect public morals;
53 Mark Wu, Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals
Clause Doctrine, Citing Steve Charnovitz, (supranote 2, at 704-05 & n.94) 2008
54 Mark Wu, Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals
Clause Doctrine, 2008; p 221

12

where there is a grave threat in the interests of the society.55 In the case of US
vs Gambling, it clarified the existence of a necessity test which should be
used when evaluating a public morals claim. The necessity test provides:
In decidingwhether a measure is necessary to protect public morals,
adjudicators are toweigh and balance: (1)the importance of the societal
interests and values thatthe measure is intended to protect, (2) the
extent to which the [challenged measure] contribute[s] to the
realization of the ends pursued by the measures, and (3) the trade im
pact of the challenged measure, including whether a reasonably
available WTO-consistent alternative measure exists.56
In applying the necessity test, Rhincodon asserted that the ban on
importation of all fish and fish products was necessary because (1) the
products came from an allegedly inhumane or cruel act of shark finning and
(2) the rigorous concern on the conservation of mako sharks.57 Rhincodons
claim are ill-founded. To date, Alopias have prohibited their nationals to
engage on shark finning and practice on an alternative which is shark
spinning.58 Rhincodon did not submit any evidence that the acts of Alopias
constitutes public moral concerns to the extent that it would impose
prohibition on trade. Outstandingly, the mako sharks in question are not
endangered species. The longfin and shortfin mako sharks are not listed in the
Appendix of Convention on International Trade in Endangered Species of
Wild Fauna and Flora (CITES). The IUCN Red list assessed that mako sharks
are not an endangered species.59 Moreover, Alpoias explained that its
55 Appellate Body Report, United StatesMeasures Affecting the Cross-Border Supply of Gambling and Betting
Services , WT/DS285/AB/R (Apr. 7, 2005)
56 Mark Wu, Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals
Clause Doctrine, 2008; p 229 Citing: U.S.-Gambling Panel Report, supra note 66, 6.492
57 R at 29 p 11
58 R at 24 p 10
59 R at 17 p8

13

regulatory framework substantially addressed Rhincodons concerns but

Rhincodon had rejected its propositions including the request for
assistance.60/61 Taken in its entirety, Rhincodon has failed to prove that their
measures were founded on a necessary exception to its GATS
commitments.62

2. Animal Welfare
In a recent case of Public Morals Exception Clause founded on necessity
to protect animal welfare in 2013, particularly the EC Seal Products ban
where WTO approved such claim in its decision63. Certain animal rights
groups have been trying to shut the hunt down as regards to seal, and now the
WTO has approved of their petition. The danger it imposes in the future now
that its enshrined in WTO case law is that the public morals defense could
create an opening to persuade other countries to enact morals-based trade
restrictions on a wide range of products from animals raised in what the
groups argue are inhumane conditions.64 Similarly, citing an excerpt of the
article written by Adam Behsudi entitled, WTO morals decision could
escalate animal welfare disputes it states:
Critics of the ban, which was challenged by Canada and Norway, tried to
advance the argument that upholding the public morals justification would set
60
61
62
63

R at 19 p9
R at 20 p9
General Agreement on Trade in Services, Article XIV: General Exceptions:
Sealing the Deal: The WTOs Appellate Body Report in EC Seal Products Volume: n18 by: Rob Howse,
Joanna Langille, and Katie Sykes [http://www.asil.org/insights/volume/18/issue/12/sealing-deal-wto
%E2%80%99s-appellate-body-report-ec-%E2%80%93-seal-products]
64 ADAM BEHSUDI, WTO morals decision could escalate animal welfare disputes
[http://www.politico.com/story/2014/05/wto-eu-seal-product-ban-canada-norway107004.html#ixzz3JW8uRP5z]

14

a dangerous precedent and could open a floodgate of similar prohibitions on

animal products. When you do that, then youre in danger of all the other
industries being banned in the same way, Terry Audla, president of Inuit
Tapiriit Kanatami, an association representing more than 50,000 Inuits, told
The Canadian Press. I mean, whos to say whats more cruel? Industrialized
agriculture? The poultry, pork and beef industry?65

65 Ibid

15