[Copyright © 2001, Stetson University College of Law. All rights reserved.]
Republic of Vero, Applicant
v.
Federation of Ormond, Respondent
RECORD
Sixth Annual
International Environmental
Moot Court Competition
NOTIFICATION, DATED 21 MAY 2001, ADDRESSED TO
THE MINISTER FOR FOREIGN AFFAIRS FOR THE REPUBLIC OF VEROAND
THE SECRETARY OF STATE FOR THE FEDERATION OF ORMOND
The Hague, 21 May 2001.
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 14 May 2001. I have the further honor to inform you that the case of the Republic of Vero, Applicant v. the Federation of Ormond, Respondent, has been entered as 2001 General List No. 106. The written proceedings shall consist of memorials to be submitted to the Court by each Party on or before 9 October 2001. Oral proceedings are scheduled for 2-3 November 2001.
/s/
Registrar
International Court of Justice---------------------------------------------------------------------------------------------------
JOINT NOTIFICATION, DATED 14 MAY 2001, ADDRESSED TO
THE REGISTRAR OF THE COURTThe Hague, 14 May 2001.
On behalf of the Republic of Vero and the Federation of Ormond, and in accordance with Article 40, paragraph 1, of the Statute of the International Court of Justice and Article 27, paragraph 3, of the Convention on Biological Diversity, we have the honor to transmit to you an original copy of the English texts of the Special Agreement Between the Republic of Vero and the Federation of Ormond for Submission to the International Court of Justice of Differences Between Them Concerning Whale Harvesting for Scientific Purposes, signed at Tallinn, Estonia, on 14 May 2001.
For the Republic of Vero: For the Federation of Ormond:
/s/
/s/M. Ishmael
Minister for Foreign AffairsS. Foyn
Secretary of State
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SPECIAL AGREEMENT
BETWEEN
THE REPUBLIC OF VEROAND
THE FEDERATION OF ORMOND
FOR SUBMISSION TO THE
INTERNATIONAL COURT OF JUSTICE
OF DIFFERENCES BETWEEN THEM
CONCERNING
WHALE HARVESTING FOR SCIENTIFIC RESEARCHThe Republic of Vero and the Federation of Ormond,
Recalling that the Republic of Vero and the Federation of Ormond 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 Vero and the Federation of Ormond are Contracting Parties to the Convention on Biological Diversity,
Bearing in mind that the Republic of Vero and the Federation of Ormond are Contracting Governments to the International Convention for the Regulation of Whaling,
Acknowledging that the Federation of Ormond is a State Party to the United Nations Convention on the Law of the Sea,
Recognizing that differences have arisen over the harvesting of humpback and blue whales for scientific purposes by the Federation of Ormond,
Noting that the Republic of Vero and the Federation of Ormond 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 Republic of Vero and the Federation of Ormond, hereinafter referred to as 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 27, paragraph 3, of the Convention on Biological Diversity.
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 also shall 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 also shall 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.
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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.
Article V
This Special Agreement shall enter into force upon signature.
DONE at Tallinn, Estonia, this fourteenth day of May 2001, in two copies, each in the English language, and each being equally authentic.
For the Republic of Vero: For the Federation of Ormond:
/s/
/s/M. Ishmael
Minister for Foreign AffairsS. Foyn
Secretary of State
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ANNEX A
AGREED STATEMENT OF FACTS1. The Federation of Ormond is a developed country with a population of approximately 100 million people and a diversified economy. It is an island nation that has historically relied on ocean resources for food.
2. The Republic of Vero is a developing country with a population of 5 million people. The Republic of Vero is an island nation that is seeking to develop "eco-tourism" by promoting tours of its ancient forests and whale-watching expeditions.
3. The Republic of Vero lies 500 miles to the southwest of the Federation of Omond.
4. Both nations are parties to the Vienna Convention on the Law of Treaties.
5. As members of the United Nations, the Republic of Vero and the Federation of Ormond are parties to the Statute of the International Court of Justice.
6. In 1965, the Republic of Vero made a declaration under Article 36, paragraph 2, of the Statute of the International Court of Justice, which stated:
The Republic of Vero recognizes as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation and on condition of reciprocity, the jurisdiction of the ICJ over all disputes that arise on or after the date of this declaration and that are not resolved by other means of peaceful settlement.
7. In 1973, the Federation of Ormond made a similar declaration, except that the declaration also provided:
The recognition of the jurisdiction of the ICJ as compulsory ipso facto and without special agreement does not apply to disputes concerning the use of the Federation of Ormond’s natural resources.
8. Both nations are parties to the Convention on Biological Diversity.
9. In accordance with Article 27, paragraph 3, of the Convention on Biological Diversity, the Republic of Vero declared in writing that it accepts submission of disputes concerning the Convention on Biological Diversity to the International Court of Justice. The Republic of Vero declared that, as a matter of national policy, it will not submit such disputes to arbitral tribunals.
10. In accordance with Article 27, paragraph 3, of the Convention on Biological Diversity, the Federation of Ormond declared in writing that it accepts both arbitration and the International Court of Justice as means to settle disputes concerning the Convention on Biological Diversity.
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11. Both nations are Contracting Governments to the International Convention for the Regulation of Whaling and are members of the International Whaling Commission.
12. Both nations are parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
13. The Federation of Ormond is a party to the United Nations Convention on the Law of the Sea. The Republic of Vero has signed the United Nations Convention on the Law of the Sea, but has not yet ratified it.
14. Both nations are signatories to the 1972 Stockholm Declaration on the Human Environment and the 1992 Rio Declaration on Environment and Development.
15. The dispute involves two species of whale: humpback whales (Megaptera novaeangliae) and blue whales (Baleenoptera musculus). The whales are migratory species, traveling between summer feeding areas and winter breeding areas. Humpback and blue whales migrate to and from the territorial seas and exclusive economic zones (EEZs) of the Republic of Vero and the Federation of Ormond.
16. The Federation of Ormond, through its Department of Ocean Resources, conducts a research program on whale species that live in and migrate through its territorial sea and EEZ. As part of the whale research program, the Department of Ocean Resources engages in the harvesting (killing) of whales. The harvesting takes place within the territorial sea and the EEZ of the Federation of Ormond.
17. From 1997-2000, the Department of Ocean Resources of the Federation of Ormond granted itself an annual permit to harvest up to 50 humpback whales and 2 blue whales. From 1997-2000, the Department of Ocean Resources harvested the maximum amount allowed under the permit.
18. The Department of Ocean Resources of the Federation of Ormond states that data concerning whale eating habits can be obtained only by examining the contents of the whale’s stomachs. Furthermore, the Department of Ocean Resources states that scientific harvesting is necessary to determine the age and sex of whales.
19. After the whale is examined and tested, the Department of Ocean Resources sells the excess whale meat to residents of the Federation of Ormond. The whale meat is frequently consumed at wedding banquets and special festivals. Culturally, the consumption of whale is viewed as a reaffirmation of the nation’s heritage as a fishing and whaling community with special ties to the sea.
20. The proceeds of the sale of excess whale meat is used for environmental education purposes within the Federation of Ormond.
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21. In 1998, Friends of Cetacea, an international non-governmental organization that advocates a ban on all whale harvesting, filed a lawsuit in the domestic courts of the Federation of Ormond alleging that the Department of Ocean Resources’ whale research program violated numerous environmental laws of the Federation of Ormond. In September 1998, the trial court found that the whale harvesting activities of the Department of Ocean Resources were conducted in accordance with the laws of the Federation of Ormond. In March 1999, a unanimous Supreme Court of the Federation of Ormond affirmed the trial court’s ruling.
22. The Friends of Cetacea has members in fifty different countries, including 250 members from the Republic of Vero.
23. On 1 September 2000, the Ormond Department of Ocean Resources announced that it had issued itself a permit to harvest, for scientific purposes, 50 humpback whales and 2 blue whales during 2001.
24. On 5 September 2000, the following diplomatic note was forwarded to the Government of the Federation of Ormond:
The Embassy of the Republic of Vero presents its compliments to the Government of the Federation of Ormond and has the honor to request that the Government of the Federation of Ormond enter into discussions concerning the killing of humpback and blue whales in the name of the scientific research.
At the outset, the Government of the Republic of Vero expresses its concern that the whale killing authorized by the Government of the Federation of Ormond violates international law. The International Whaling Commission has in place a moratorium on the taking or killing of certain whale species, including humpback and blue whales. It is true that Article VIII of the International Convention for the Regulation of Whaling authorizes the killing of whales for purposes of scientific research; however, the annual number of whale kills authorized and conducted by the Ormond Department of Ocean Resources greatly exceeds any level necessary for scientific research. The Government of the Republic of Vero is particularly concerned that the killing of humpback and blue whales is not sustainable. The International Whaling Commission estimates that there are approximately 15,500 humpback whales remaining and only 400 - 1,400 blue whales remaining. Killing 50 more humpback whales and even one or two blue whales will contribute to their extinction. Such unsustainable "harvesting" is obviously contrary to the principles enshrined in the Rio Declaration on Environment and Development.
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The possible extinction of a species, especially ones as noble as the humpback and blue whales, is a cause of grave concern for all nations of the world. The Government of the Republic of Vero is further troubled, however, because the whale killing authorized and conducted by the Ormond Department of Ocean Resources directly affects the people of Vero.
As the Government of the Federation of Ormond is aware, the Republic of Vero is attempting to develop in a manner that is consistent with environmental protection. The Republic of Vero does not wish to emulate the developed nations of the world, with their unsustainable levels of consumption and pollution. Accordingly, the Government of the Republic of Vero has promoted "eco-tourism." Eco-tourism allows the Republic of Vero to expand its tourist industry, but not at the expense of the environment. In addition to the tours and expeditions through our native forests, the Republic of Vero is becoming increasingly known for its whale-watching trips.
Each day (during the four warmest months of the year) several hundred tourists visiting the Republic of Vero depart on small charter boats to watch whales. The boat operators have reported that, since 1998, there has been a marked decrease in the number of whale sightings in the territorial waters and exclusive economic zone of the Republic of Vero. As a result, the number of whale-watching tourists has also declined. The actions of the Government of the Federation of Ormond have not only harmed the marine environment, they have harmed the economy of the Republic of Vero.
In light of the above, the Government of the Republic of Vero requests that the Government of the Federation of Ormond refrain from any additional whale killing.
Please accept the assurance of my highest consideration.
/s/
B. Edeni
Ambassador
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25. On 15 September 2000, the following diplomatic note was forwarded to the Government of the Republic of Vero:
The Embassy of the Federation of Ormond presents its compliments to the Government of the Republic of Vero and has the honor to acknowledge receipt of the diplomatic note dated 5 September 2000.
The Government of the Federation of Ormond welcomes the opportunity to engage in a dialogue about the proper level of whale harvesting, for scientific purposes and for consumption. It is instructive to recall that the purpose of the International Convention for the Regulation of Whaling, as recited in the preamble, is to "provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry."
The Government of the Federation of Ormond did not, and does not, favor a moratorium on whale harvesting. Nevertheless, the Government of the Federation of Ormond has abided by and complied with the moratorium. Moreover, the Government of the Federation of Ormond declined to exercise its right, in accordance with Article V of the International Convention for the Regulation of Whaling, to object to and thereby not be bound by the moratorium. The Government of the Federation of Ormond decided not to opt out of the moratorium because of Article VIII, which permits the taking of whales for scientific purposes.
Thus, the Government of the Federation of Ormond has complied with international law. Article VIII of the International Convention for the Regulation of Whaling specifically states:
Notwithstanding anything contained in this Convention, any Contracting Government may grant to any of its nationals a special permit authorizing that national to kill, take, and treat whales for purposes of scientific research subject to such restrictions as to number and subject to such other conditions as the Contracting Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this Article shall be exempt from the operation of this Convention.
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The plain language of Article VIII – "Notwithstanding anything contained in this Convention" – recognizes a right to issue scientific permits regardless of any commercial quotas (or moratorium) promulgated by the International Whaling Commission. The right to issue such permits is limited only to such restrictions that the Contracting Government – the Federation of Ormond, in this case – imposes.
With respect to the concern about the impact of the Department of Ocean Resources’ scientific research on the economy of the Republic of Vero, the Government of the Federation of Ormond emphasizes that the whales taken for scientific purposes are harvested within the jurisdiction of the Federation of Ormond. Although some of these whales may migrate between the waters of the Federation of Ormond and the Republic of Vero, the whales are Ormond natural resources when they are in the territorial sea or the EEZ of the Federation of Ormond. The Federation of Ormond has the right under international law to exploit its own natural resources in accordance with its own policies.
Please accept the assurance of my highest consideration.
/s/
H. Melville
Ambassador26. The Government of the Republic of Vero responded on 25 September 2000 with a diplomatic note that stated in part:
It is the position of the Government of the Republic of Vero that the killing of endangered whales, such as the humpback and blue whales, for "scientific purposes" is an abuse of right, especially when the right is exercised in a manner that will lead to the extirpation of a species.
The doctrine of "abuse of rights" has long been recognized by international tribunals. For example, Judge Ammoun noted that an "abuse of right, like a denial of justice, is an international tort . . . enshrined in a general principle of law which emerges from the legal systems of all nations." Barcelona Traction, Light and Power Co., Ltd., (Belgium v. Spain), 1970 I.C.J. 3, 324 (Feb. 7) (separate opinion of Judge Ammoun). More recently, the World Trade Organization Appellate Body endorsed the concept of abuse of rights. See United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/13 at ¶ 158 (Oct. 12, 1998) (discussing principle of good faith in the exercise of rights).
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The case that scientific whaling is an abuse of right, and therefore violative of international law, is persuasively made by Professor Gillian Triggs of the University of Melbourne, Australia, in Japanese Scientific Whaling: An Abuse of Right or Optimum Utilisation?, 5 Asia Pacific J. Envtl. L. 33-59 (2000) (published by Kluwer Law International).
It is also the position of the Government of the Republic of Vero that the "scientific" research program conducted by the Ormond Department of Ocean Resources violates the United Nations Convention on the Law of the Sea (UNCLOS). Under Article 192, "States have the obligation to protect and preserve the marine environment." Furthermore, Article 65 commands that, with respect to cetaceans, states shall "work through the appropriate international organizations for their conservation, management and study." Much like it has done in the case of Japan’s scientific whaling, the International Whaling Commission has, through resolutions, called upon the Federation of Ormond to cease its "scientific" research program on humpback and blue whales. This refusal to halt the whale killing operations violates both Articles 192 and 65 of UNCLOS.
27. The Government of the Federation of Ormond responded on 1 October 2000 with a diplomatic note that stated in part:
It is a curious suggestion that the scientific harvesting of whales, a right specifically granted by an international convention, is contrary to international law. If an "abuse of right" exists in the whaling context, it is the moratorium on whaling. The moratorium is itself an abuse of the International Convention for the Regulation of Whaling. The Convention’s purpose is to foster and encourage the whaling industry; the moratorium is designed to end the whaling industry.
With respect to an alleged violation of the U.N. Convention on the Law of the Sea, the Government of the Federation of Ormond vigorously denies that its scientific research violates UNCLOS. Indeed, the Government of the Federation of Ormond would be prepared to explain its position before the International Tribunal for the Law of the Sea. It is observed, however, that the Republic of Vero is not yet a party to UNCLOS and thus may not avail itself of UNCLOS’s dispute resolution procedures.
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28. On 1 December 2000, the Government of the Republic of Vero responded with a diplomatic note that stated in part:
Finally, it is the position of the Government of the Republic of Vero that the Ormond Department of Ocean Resources’ killing of whales violates the Convention on Biological Diversity. Article 3 of the Convention provides that 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." The whales that are killed are migratory and spend significant portions of their lives in the territorial sea and EEZ of the Republic of Vero. Thus, the actions of the Ormond Department of Ocean Resources damages the environment and the economy of the Republic of Vero.
The Government of the Republic of Vero intends to invoke the jurisdiction of the International Court of Justice.
29. On 15 December 2000, the Government of the Federation of Ormond responded with a diplomatic note that stated in part:
The International Court of Justice simply does not have jurisdiction over a dispute concerning the International Convention for the Regulation of Whaling (ICRW). The ICRW does not contain a dispute resolution clause, with the obvious implication that any disputes must be resolved through negotiation.
Moreover, the International Court of Justice is not an appropriate forum because the Federation of Ormond has specifically decided not to subject itself to the International Court of Justice’s compulsory jurisdiction regarding the use of the Federation of Ormond’s natural resources. If any international tribunal had jurisdiction to hear this dispute, it would be the International Tribunal for the Law of the Sea. The International Tribunal for the Law of the Sea has been established to resolve such disputes and is more familiar with the subject matter. Regrettably, that forum is not available because of the intransigence of the Republic of Vero. The Federation of Ormond should not be unwillingly subjected to International Court of Justice jurisdiction because the Republic of Vero has declined to become a party to the U.N. Convention on the Law of the Sea.
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Concerning Article 3 of the Convention on Biological Diversity, the Government of the Federation of Ormond observes that it also provides that States have "the sovereign right to exploit their own resources pursuant to their own environmental policies."
30. At a press conference on 5 January 2001, Minister of Foreign Affairs Ishmael stated:
"I believe that the position that the scientific whaling violates the Convention on Biological Diversity is well justified. For example, it is instructive to look at Article 22, which explains the Convention’s relationship with other treaties. Ordinarily, the Convention on Biological Diversity does not affect the rights of a party that derive from another agreement. Except, however, and I quote here: `where the exercise of those rights . . . would cause a serious . . . threat to biological diversity.´ I ask you – what could be a greater threat to biological diversity than the purposeless and unsustainable slaughter of endangered whales?"
31. At a 15 January 2001 press conference, Secretary of State Foyn stated:
"Once again, the Federation of Ormond is being subjected to selective reading. If one examines Article 22 of the Convention on Biological Diversity in its entirety, one finds it says that nations must act consistently with the law of the sea. The International Convention for the Regulation of Whaling is a law of the sea. So is, obviously, UNCLOS. And the Federation of Ormond is fully complying with its obligations as it exercises its rights under the law of the sea.
Having said that, I note that the Federation of Ormond is always willing to sit down at the table and discuss the matter of scientific whaling with all reasonable and rational parties."
32. After continued discussions, the Republic of Vero and the Federation of Ormond signed an agreement on 14 May 2001 that submits the matter, including the question of jurisdiction, to the International Court of Justice.
33. The 14 May 2001 agreement shall not be interpreted as waiving or prejudicing any argument that the Federation of Ormond may make concerning the jurisdiction of the International Court of Justice.
34. The Republic of Vero opposes the claims in paragraph 35 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 killing of humpback and blue whales by the Ormond Department of Ocean Resources violates international law.
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35. The Federation of Ormond opposes the claims in paragraph 34 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, the Federation of Ormond seeks an order declaring that the harvesting of whales for scientific purposes by the Ormond Department of Ocean Resources does not violate international law.
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