Copyright © 2000 Stetson University College of Law. All rights reserved.
Republic of Redington, Applicant
v.
Santa Madeira, Respondent
RECORD
Fifth Annual International Environmental
Moot Court
Competition
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NOTIFICATION, DATED 10 JULY 2000, ADDRESSED TO
THE MINISTER FOR FOREIGN AFFAIRS FOR THE REPUBLIC OF REDINGTONAND
THE SECRETARY OF STATE FOR SANTA MADEIRA
The Hague, 10 July 2000.
On behalf of the International Court of Justice, and in accordance with Article 26 of the Rules of Court, I have the honor to acknowledge receipt of the joint notification dated 4 July 2000. I have the further honor to inform you that the case of the Republic of Redington, Applicant v. Santa Madeira, Respondent, has been entered as 2000 General List No. 105. The written proceedings shall consist of memorials to be submitted to the Court by each Party on or before 11 October 2000. Oral proceedings are scheduled for 27-28 October 2000.
/s/
Registrar
International Court of Justice----------------------------------------------------------------------------------------------------------------------
JOINT NOTIFICATION, DATED 4 JULY 2000, ADDRESSED TO
THE REGISTRAR OF THE COURTThe Hague, 4 July 2000.
On behalf of the Republic of Redington and Santa Madeira, and in accordance with Article 40, paragraph 1, of the Statute of the International Court of Justice and Article XXV, paragraph 2, of the Convention for the Conservation of Antarctic Marine Living Resources, we have the honor to transmit to you an original copy of the English texts of the Special Agreement Between the Republic of Redington and Santa Madeira for Submission to the International Court of Justice of Differences Between Them Concerning Patagonian and Antarctic Toothfish, signed at Wellington, New Zealand, on 4 July 2000.
For the Republic of Redington: For Santa Madeira:
/s/
J.S.C. d’Urville
Minister for Foreign Affairs/s/
A. McMurdo
Secretary of State
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SPECIAL AGREEMENT
BETWEEN
THE REPUBLIC OF REDINGTON
AND
SANTA MADEIRA
FOR SUBMISSION TO THE
INTERNATIONAL COURT OF JUSTICE
OF DIFFERENCES BETWEEN THEM
CONCERNING
PATAGONIAN AND ANTARCTIC TOOTHFISHThe Republic of Redington and Santa Madeira,
Recalling that the Republic of Redington and Santa Madeira are members of the United Nations and that the Charter of the United Nations calls on members to settle international disputes by peaceful means,
Observing that the Republic of Redington and Santa Madeira are contracting parties to the Convention for the Conservation of Antarctic Marine Living Resources,
Acknowledging that the Republic of Redington and Santa Madeira are parties to the agreement establishing the World Trade Organization,
Recognizing that differences have arisen over the harvesting of Patagonian toothfish (Dissostichus eleginoides) and Antarctic toothfish (Dissostichus mawsoni) by Santa Madeira-registered vessels, and the response of the Republic of Redington,
Noting that the Parties have been unable to settle their differences through negotiation,
Desiring that the International Court of Justice, hereinafter referred to as the Court, resolve these differences,
Desiring further to define the issues to be submitted to the Court,
Have agreed as follows:
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Article I
The Parties shall submit the questions contained in Annex A of this Special Agreement to the Court pursuant to Article 40, paragraph 1, of the Statute of the International Court of Justice and Article XXV, paragraph 2, of the Convention for the Conservation of Antarctic Marine Living Resources.
Article II
1. The Parties shall request the Court to decide this matter on the basis of the rules and principles of general international law, as well as any applicable treaties.
2. The Parties shall also request the Court to decide this matter based on the Agreed Statement of Facts, which is attached as Annex A, which is an integral part of this Agreement.
3. The Parties shall also request the Court to determine the legal consequences, including the jurisdiction of the Court and the rights and obligations of the Parties, arising from any Judgment on the questions presented in this matter. The Parties shall neither address nor request the Court to address the issue of monetary damages, which may be a subject of future discussions between the Parties.
Article III
1. The proceedings shall consist of written pleadings and an oral hearing.
2. The written pleadings shall consist of memorials to be submitted simultaneously to the Court by the Parties.
Article IV
1. The Parties shall accept the Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.
2. Immediately after the transmission of the Judgment, the Parties shall enter into negotiations on the modalities for its execution.
3. If the Parties are unable to reach agreement within six months, either Party may request the Court to render an additional Judgment to determine the modalities for executing its Judgment.
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Article V
This Special Agreement shall enter into force upon signature.
DONE at Wellington, New Zealand, this fourth day of July 2000, in two copies, each in the English language, and each being equally authentic.
For the Republic of Redington: For Santa Madeira:
/s/
J.S.C. d’Urville
Minister for Foreign Affairs/s/
A. McMurdo
Secretary of State
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ANNEX A
AGREED STATEMENT OF
FACTS
1. The Republic of Redington is a developed country with a population of 250 million people and a diversified economy.
2. Santa Madeira is a developed country with a population of 10 million people. Although Santa Madeira now has a diversified economy, the harvesting of marine resources, such as ocean fishing, has played a significant historical and cultural role in the nation’s development. Approximately 5% of the employed adult population continue to work in a field related to marine resources, including harvesting, processing, and selling such resources.
3. The Republic of Redington traditionally has been Santa Madeira’s largest trading partner. From 1990 until the onset of this dispute, Santa Madeira exported 55% of marine resources harvested and/or processed to the Republic of Redington.
4. Both nations are parties to the Vienna Convention on the Law of Treaties.
5. Both nations are parties to the Antarctic Treaty, the Protocol on Environmental Protection to the Antarctic Treaty, and the Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR).
6. Santa Madeira is a party to the United Nations Convention on the Law of the Sea. The Republic of Redington has signed the United Nations Convention on the Law of the Sea, but has not yet ratified it.
7. Both nations are signatories to the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development.
8. Both nations are parties to the 1994 General Agreement on Tariffs and Trade and are members of the World Trade Organization.
9. This dispute involves two species of toothfish: Patagonian toothfish (Dissostichus eleginoides), also known as Chilean sea bass, and Antarctic toothfish (Dissostichus mawsoni). The Australian Antarctic Division reports that the two species "are very similar in appearance and habits but the Antarctic Toothfish is found in the high latitude region close to the Antarctic continent whereas the Patagonian Toothfish is found in sub-Antarctic waters on shelves around islands and submarine banks." Toothfish may grow to 2.2 meters in length and 120 kilograms in weight.
10. Article VII of the CCAMLR established a Commission, which in accordance with Article IX, may formulate, adopt, and revise conservation measures on the basis of the best scientific evidence available.
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11. The Commission has adopted several conservation measures that pertain to the harvesting of Patagonian and Antarctic toothfish, including flag state licensing of fishing vessels, catch quotas, vessel monitoring systems, port inspections of landings and transshipments, and identification of vessels and fishing gear.
12. Despite the Commission’s efforts, it is estimated that the annual amount of illegal, unregulated, or unreported toothfish harvest has reached 90,000 metric tons, a level that is viewed as unsustainable for the fishery.
13. At a meeting in November 1999, the Commission adopted Conservation Measure 170/XVIII, which requires a catch documentation scheme for toothfish. Conservation Measure 170/XVIII may be found in Annex B, which is incorporated herein.
14. In accordance with Article IX, paragraph 6, of the CCAMLR, Santa Madeira notified the Commission that Santa Madeira was unable to accept Conservation Measure 170/XVIII. No other Member of the Commission declared that it was unable to accept Conservation Measure 170/XVIII.
15. In December 1999, the Republic of Redington enacted domestic legislation titled the "Toothfish Protection Act" (TPA). The TPA, which by its terms became effective on 7 May 2000, in part provides:
§ 1. Definitions
(a) Dissostichus catch document (DCD) means the uniquely numbered catch documentation form approved by the CCAMLR Commission and issued by a flag state to its vessels authorized to harvest and/or transship Dissostichus species.
(b) Dissostichus species means Patagonian toothfish and/or Antarctic toothfish and their parts or products.
* * *
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8]§ 2. Prohibitions
It is hereby prohibited to
(a) import into the territory of the Republic of Redington any Dissostichus species without the applicable catch documentation.
* * *
§ 3. Enforcement
(a) When any Dissostichus species is offered for entry into the territory of the Republic of Redington unaccompanied by the required catch documentation, the importer of record must either:
(i) Abandon the species;
(ii) Waive claim to the species; or
(iii) Place the species into a bonded warehouse and attempt to obtain documentation authorizing importation.
(b) If within 14 days of such species being placed into a bonded warehouse, the Republic of Redington Customs Service receives the required documentation, the species will be allowed entry. If the catch documentation is not presented within 14 days, the importer’s claim to the species will be deemed waived.
(c) When species are abandoned or claim to them is waived, the species will be disposed as authorized by law.
16. On 10 May 2000, the Santa Madeira-registered vessel Ormond attempted to import into the territory of the Republic of Redington approximately one-half metric ton of frozen Patagonian toothfish. Because the toothfish were not accompanied by the catch documentation required by the TPA, the toothfish were placed in a bonded warehouse.
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17. On 11 May 2000, the following diplomatic note was forwarded to the Government of the Republic of Redington:
The Embassy of Santa Madeira presents its compliments to the Government of the Republic of Redington and has the honor to request that the Government of the Republic of Redington enter into discussions to resolve the incident involving the Ormond.
At the outset, the Government of Santa Madeira notes that it is not bound by Conservation Measure 170/XVIII adopted by the Commission for the Conservation of Antarctic Marine Living Resources. Because the Government of Santa Madeira opted out of this particular conservation measure, its vessels need not produce the requested catch documentation for Patagonian toothfish.
The Government of Santa Madeira also points out that the seizure of the Patagonian toothfish raises serious implications regarding compliance with the 1994 General Agreement on Tariffs and Trade, which incorporates the 1947 General Agreement on Tariffs and Trade. In particular, the Government of Santa Madeira suggests that the Toothfish Protection Act, as it is being presently implemented, is inconsistent with the obligations imposed by GATT 1947 Articles I and XI. It is the opinion of the Government of Santa Madeira that the WTO Appellate Body’s decision in the Shrimp/Turtle Case sets forth a comprehensive explanation of why such trade measures are inconsistent with GATT obligations.
Please accept the assurance of my highest considerations.
/s/________________________________
P. Siple
Ambassador18. On 12 May 2000, the following diplomatic note was forwarded to the Government of Santa Madeira:
The Embassy of the Republic of Redington presents it compliments to the Government of Santa Madeira and has the honor to acknowledge receipt of the diplomatic note dated 11 May 2000.
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The Government of the Republic of Redington welcomes the opportunity to discuss further cooperation regarding the conservation of Patagonian toothfish. The Government of Republic of Redington notes that, as a party to the Convention on the Conservation of Living Marine Resources, it has an international obligation to enforce Conservation Measure 170/XVIII. The Government of Republic of Redington also would like to express its view the Toothfish Protection Act is entirely justified under Article XX of the 1947 General Agreement on Tariffs and Trade, especially since the Act was adopted to implement a multilateral environmental agreement. Finally, the Government of the Republic of Redington expresses concern that undocumented catch by vessels such as the Ormond contribute to the unsustainable harvest of Patagonian toothfish. The failure of the Government of Santa Madeira to regulate such conduct may be inconsistent with its obligations under the United Nations Convention on the Law of the Sea and is contrary to the principles enshrined in the Rio Declaration.
Please accept the assurances of my highest considerations.
/s/
C. Shinn
Ambassador19. On 13 May 2000, the following diplomatic note was forwarded to the Government of Republic of Redington, which in part stated:
The Government of Santa Madeira undertakes international obligations with the utmost seriousness. Indeed, the recognition of the gravity of such obligations is one reason why the Government of Santa Madeira declined to accept Conservation Measure 170/XVIII.
The Government of Santa Madeira observes that because the Government of the Republic of Redington is not a party to the United Nations Convention on the Law of the Sea, it is not in a position to point out alleged non-compliance with the Convention’s terms. The Government of Santa Madeira further notes that Principle 12 of the Rio Declaration emphasizes that unilateral trade actions, such as the Toothfish Protection Act, to
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deal with environmental challenges outside the jurisdiction of the importing country should be avoided.
The Government of Santa Madeira renews its request for immediate consultations to resolve this matter.
20. Representatives of the Governments of the Republic of Redington and Santa Madeira met on 15-16 May 2000. On 16 May 2000, the Minister for Foreign Affairs of the Republic of Redington and the Secretary of State of Santa Madeira held a joint press conference. The following unsigned and uninitialed joint statement was released to journalists:
Joint Statement
of the
Minister of Foreign Affairs
of the Republic of Redington
and
the Secretary of State of Santa Madeira16 May 2000
The two Governments have concluded two days of frank and candid discussions concerning the matter of catch documentation for Patagonian and Antarctic toothfish. We have agreed to continue this constructive dialogue. To facilitate a prompt resolution of this matter, we have agreed to establish 16 June 2000 as the deadline for a comprehensive settlement. If such a resolution is not forthcoming, the matter shall be referred to the International Court of Justice, in accordance with the Convention on the Conservation of Antarctic Marine Living Resources.
21. In response to a question at the 16 May 2000 press conference, R.F. Scott, the Secretary of State of Santa Madeira, stated: "I believe that the Joint Statement is clear and unambiguous. If we are unable to resolve the matter by 16 June, we shall seek to submit the matter to the ICJ."
22. Despite continued negotiations, the Republic of Redington and Santa Madeira did not resolve their differences concerning Patagonian and Antarctic toothfish by 16 June 2000.
23. On 17 June 2000, R.F. Scott, the Secretary of State of Santa Madeira, submitted his resignation, which was effective immediately. Santa Madeira President Amundsen appointed A. McMurdo as the new Secretary of State of Santa Madeira on 18 June 2000.
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24. On 21 June 2000, the following diplomatic note was forwarded to the Government of the Republic of Redington, which in part stated:
As our negotiations progressed, it became clear that the matter between our two nations is simply a trade dispute. As such, it is our view that the proper forum for resolution of trade disputes under the GATT is the WTO. It is our position that the dispute settlement process, as outlined in the Understanding on Rules and Procedures Governing Settlements of Disputes (Annex 2 to the Agreement Establishing the World Trade Organization), establishes primary jurisdiction for trade disputes with the WTO. Accordingly, it is our position that the International Court of Justice does not have jurisdiction over this trade dispute. As one international jurist recently observed, the ICJ "never has stood alone as the sole tribunal to settle disputes in accordance with international law . . . [and] always has coexisted with other third-party dispute settlement forums." Jonathan I. Charney, The Impact on the International Legal System of the Growth of International Courts and Tribunals, 31 NYU J. Int’l L. & Politics 697, 698 (1999).
25. The Government of the Republic of Redington responded on 22 June 2000 with a diplomatic note that stated in part:
The Government of the Republic of Redington vigorously disagrees with the statement that the International Court of Justice does not have jurisdiction of this matter. Both the Republic of Redington and Santa Madeira are parties to the Convention on the Conservation of Antarctic Marine Living Resources, and both nations are bound by Article XXV, which grants the ICJ jurisdiction concerning the application of the Convention. Moreover, in the Joint Statement of 16 May 2000, the Government of Santa Madeira agreed that the ICJ would resolve the dispute if a settlement was not reached by 16 June 2000. The Secretary of State of Santa Madeira reaffirmed this obligation at the 16 June 2000 press conference. Statements at press conferences by high-ranking government officials can have legal implications. See e.g Nuclear Test Cases (N.Z. v. Fr.), 1974 I.C.J. 457.
With respect to the question of primary jurisdiction, the Government of the Republic of Redington observes that the WTO Trade and Environment Committee has stated "that if a dispute arises over a trade action taken under an environmental agreement, and if both sides to the dispute have signed that agreement, then they should try to use the environmental agreement to settle the dispute." See World Trade Organization <http://www.wto.org/>.
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Furthermore, it is noted that a distinguished international environmental jurist has concluded that "the ICJ is in a position to adjudicate trade and environment disputes in limited circumstances." Lakshman Guruswamy, The Annihilation of Sea Turtles: World Trade Organization Intransigence and U.S. Equivocation, 30 Envtl. L. Rptr. 10261, 10275 (2000). This dispute is one such circumstance.
26. After continued discussions, the Government of the Republic of Redington and the Government of Santa Madeira signed an agreement on 4 July 2000 that submits the matter, including the question of jurisdiction, to the International Court of Justice.
27. The 4 July 2000 agreement shall not be interpreted as waiving or prejudicing any argument that the Government of Santa Madeira may make concerning the jurisdiction of the International Court of Justice.
28. The Republic of Redington opposes the claims in paragraph 29 of this Annex and seeks an order of the International Court of Justice declaring that (1) the Court has jurisdiction over the merits of this dispute, and (2) the refusal of the Republic of Redington to allow the importation of undocumented Patagonian toothfish does not violate international law.
29. Santa Madeira opposes the claims in paragraph 28 of this Annex and seeks an order of the International Court of Justice declaring that the Court has no jurisdiction over the merits of this dispute. In the alternative, and without prejudice to its jurisdictional arguments, Santa Madeira seeks an order declaring that the imposition of unilateral trade measures by the Republic of Redington through the Toothfish Protection Act violates international law.
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ANNEX B
CONSERVATION MEASURE 170/XVIII
Catch Documentation Scheme for Dissostichus spp.The Commission,
Concerned that illegal, unregulated and unreported (IUU) fishing for Dissostichus spp. in the Convention Area threatens serious depletion of populations of Dissostichus spp.,
Aware that IUU fishing involves significant by-catch of some Antarctic species, including endangered albatross,
Noting that IUU fishing is inconsistent with the objective of the Convention and undermines the effectiveness of CCAMLR conservation measures,
Underlining the responsibilities of Flag States to ensure that their vessels conduct their fishing activities in a responsible manner,
Mindful of the rights and obligations of Port States to promote the effectiveness of regional fishery conservation measures,
Aware that IUU fishing reflects the high value of, and resulting expansion in markets for and international trade in, Dissostichus spp.,
Recalling that Contracting Parties have agreed to introduce classification codes for Dissostichus spp. at a national level,
Recognizing that the implementation of a Catch Documentation Scheme for Dissostichus spp. will provide the Commission with essential information necessary to provide the precautionary management objectives of the Convention,
Committed to take steps, consistent with international law, to identify the origins of Dissostichus spp. entering the markets of Contracting Parties and to determine whether Dissostichus spp. harvested in the Convention Area that is imported into their territories was caught in a manner consistent with CCAMLR conservation measures.
Wishing to reinforce the conservation measures already adopted by the Commission with respect to Dissostichus spp.,
Inviting non-Contracting Parties whose vessels fish for Dissostichus spp. to participate in the Catch Documentation Scheme for Dissostichus spp., hereby adopts the following conservation measure in accordance with Article IX of the Convention:
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1. Each Contracting Party shall take steps to identify the origin of Dissostichus spp. imported into or exported from its territories and to determine whether Dissostichus spp. harvested in the Convention Area that is imported into or exported from its territories was caught in a manner consistent with CCAMLR conservation measures.
2. Each Contracting Party shall require that each of its flag vessels authorized to engage in harvesting of Dissostichus eleginoides and/or Dissostichus mawsoni complete a Dissostichus catch document for the catch landed or transhipped on each occasion that it lands or tranships Dissostichus spp.
3. Each Contracting Party shall require that each landing of Dissostichus spp. at its ports and each transhipment of Dissostichus spp. to its vessels be accompanied by a completed Dissostichus catch document.
4. Each Contracting Party shall provide Dissostichus catch document forms to each of its flag vessels authorized to harvest Dissostichus spp. and only to those vessels.
5. A non-Contracting Party seeking to cooperate with CCAMLR by participating in this Scheme may issue Dissostichus catch document forms to any of its flag vessels that intend to harvest Dissostichus spp.
6. The Dissostichus catch document shall include the following information:
(i) the name, address, telephone and fax numbers of the issuing authority;
(ii) the name, home port, national registry number, and call sign of the vessel and, if applicable, its Lloyd's registration number;
(iii) the number of the licence or permit issued to the vessel, as applicable;
(iv) the weight of each Dissostichus species landed or transhipped by product type, and
(a) by CCAMLR statistical subarea or division if caught in the Convention Area; and/or
(b) by FAO statistical area, subarea or division if caught outside the Convention Area;
(v) the dates within which the catch was taken;
(vi) the date and the port at which the catch was landed or the date and the vessel, its flag and national registry number, to which the catch was transhipped; and
(vii) the name, address, telephone and fax numbers of the receiver or receivers of the catch and the amount of each species and product type received.
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7. Procedures for completing Dissostichus catch documents in respect of vessels are set forth in paragraphs A1 to A10 of Annex 170/A to this measure. A sample catch document is attached to the annex.
8. Each Contracting Party shall require that each shipment of Dissostichus spp. imported into its territory be accompanied by the export-validated Dissostichus catch document or documents that account for all the Dissostichus spp. contained in the shipment.
9. An export-validated Dissostichus catch document issued in respect of a vessel is one that:
(a) includes all relevant information and signatures provided in accordance with paragraphs A1 to A11 of Annex 170/A to this measure; and
(b) includes a signed and stamped certification by a responsible official of the exporting State of the accuracy of the information contained in the document.
10. Each Contracting Party shall ensure that its customs authorities or other appropriate officials request and examine the import documentation of each shipment of Dissostichus spp. imported into its territory to verify that it includes the export-validated Dissostichus catch document or documents that account for all the Dissostichus spp. contained in the shipment. These officials may also examine the content of any shipment to verify the information contained in the catch document or documents.
11. If, as a result of an examination referred to in paragraph 10 above, a question arises regarding the information contained in a Dissostichus catch document, the exporting State whose national authority validated the document and, as appropriate, the Flag State whose vessel completed the document are called on to cooperate with the importing State with a view to resolving such question.
12. Each Contracting Party shall provide copies quarterly to the CCAMLR Secretariat of all export-validated Dissostichus catch documents that it issued from and received into its territory and shall report annually to the Secretariat data, drawn from Dissostichus catch documents, on the origin and amount of Dissostichus spp. exported from and imported into its territory.
13. Each Contracting Party, and any non-Contracting Party that issues Dissostichus catch documents in respect of its flag vessels in accordance with paragraph 5, shall inform the CCAMLR Secretariat of the national authority or authorities (including names, addresses, fax numbers and email addresses) responsible for issuing and validating Dissostichus catch documents.
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14. Notwithstanding the above, any Contracting Party may require additional verification of catch documents, including inter alia the use of VMS, in respect of catches by its flag vessels outside the Convention Area, when landed at and exported from its territory.
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