Stetson Law -- International Environmental Moot Court Problem, 1998

Ybor v. Republic of Madeira

RECORD

NOTIFICATION, DATED 8 JULY 1998, ADDRESSED TO
THE MINISTER FOR FOREIGN AFFAIRS FOR YBOR
AND
THE SECRETARY OF STATE FOR THE REPUBLIC OF MADEIRA

The Hague, 8 July 1998.

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 1998. I have the further honor to inform you that the case of Ybor, Applicant v. Republic of Madeira, Respondent has been entered as 1998 General List No. 106. The written proceedings shall consist of memorials to be submitted to the Court by each Party on or before 20 October 1998. Oral proceedings are scheduled for 6-7 November 1998.

/s/

Registrar
International Court of Justice

JOINT NOTIFICATION, DATED 4 JULY 1998, ADDRESSED TO
THE REGISTRAR OF THE COURT

The Hague, 4 July 1998.

On behalf of Ybor and the Republic of Madeira, and in accordance with Article 40, paragraph 1, of the Statute of the International Court of Justice, we have the honor to transmit to you an original copy of the English texts of the Special Agreement Between Ybor and the Republic of Madeira for Submission to the International Court of Justice of Differences Between Them Concerning the Southern Tropical Snapper, signed at Mexico City on 15 June 1998.

For Ybor:

/s/_____________________
Minister for Foreign Affairs

For the Republic of Madeira:

/s/_____________________
Secretary of State

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SPECIAL AGREEMENT
BETWEEN
YBOR
AND
THE REPUBLIC OF MADEIRA
FOR SUBMISSION TO THE
INTERNATIONAL COURT OF JUSTICE
OF DIFFERENCES BETWEEN THEM
CONCERNING
THE SOUTHERN TROPICAL SNAPPER

Ybor and the Republic of Madeira,

Recalling that Ybor and the Republic of 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,

Recognizing that differences have arisen over the harvesting of shrimp by Ybor-registered vessels, and the effect of the harvesting on the Southern Tropical snapper, and the response of the Republic of Madeira,

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.

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.

3. The Parties shall also request the Court to determine the legal consequences, including the rights and obligations of the Parties, arising from its 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 Mexico City, this fifteenth day of June 1998, in two copies, each in the English language, and each being equally authentic.

For Ybor:

/s/_____________________
Minister for Foreign Affairs

For the Republic of Madeira:

/s/_____________________
Secretary of State

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ANNEX A
AGREED STATEMENT OF FACTS

1. Ybor and the Republic of Madeira are two independent nations that share a common northern and southern boundary. Each nation's eastern coastline borders the Southern Tropical Ocean.

2. Annex B, which is incorporated herein, is a map of the Southern Tropical region, including the nearby nations of Lernihan, New Mastonia, Pinellas, Queensland, Shanen, Sharona, and Stinson.

3. Ybor has a population of approximately 1.5 million people. The Ybor economy is primarily based on agriculture and fishing. Ybor's main export is shrimp.

4. The Republic of Madeira is an industrial nation with a diversified economy and a population of approximately 75 million people.

5. The Republic of Madeira traditionally has been Ybor's largest trading partner. From 1980 until the onset of this dispute, Ybor exported 95% of its shrimp to the Republic of Madeira.

6. Both nations are parties to the Vienna Convention on the Law of Treaties, the United Nations Convention on the Law of the Sea, the Convention on the Territorial Sea and Contiguous Zone, and the Convention on Biological Diversity. Both nations have signed the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of

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10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.

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. The Southern Tropical snapper, which is found only in the Southern Tropical Ocean, is a reddish, saltwater finfish. As a juvenile, the Southern Tropical snapper is found over sandy or mud bottoms along the coastline. As an adult, the Southern Tropical snapper is found in open waters. It is a species that is not confined to the territory of one particular state. Indeed, stocks of Southern Tropical snapper frequently migrate over the boundary between the territorial sea of Ybor and the territorial sea of the Republic of Madeira.

10. The parties estimate that 80% of Southern Tropical snapper are found in the territorial waters of Ybor and the Republic of Madeira, congregated primarily near the border. The remaining 20% of the stock are found in the territorial waters of the seven other nations that comprise the Southern Tropical region.

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11. Southern Tropical snapper may be eaten. Several hundred fishermen in the Republic of Madeira depend on a healthy Southern Tropical snapper fishery. The Southern Tropical snapper is also popular among recreational anglers.

12. A significant threat to the viability of the Southern Tropical snapper is shrimp fishermen. When harvesting shrimp, shrimp trawls capture other aquatic organisms ("bycatch") in their nets. One specific bycatch associated with shrimp trawls is juvenile Southern Tropical snapper.

13. The parties estimate, that in 1990, approximately 85% of all juvenile Southern Tropical snapper were bycatch of shrimp trawls. Accordingly, shrimp trawls were responsible for the death of 85% of all juvenile Southern Tropical snapper. As a result, the population of adult Southern Tropical snapper declined dramatically.

14. Concerned in part about the impact of the shrimp trawls on its Southern Tropical snapper domestic fishing industry, the Republic of Madeira enacted a law in 1991 that requires all shrimp trawls operating within its jurisdiction to use bycatch reduction devices (BRDs). The BRDs are attached to shrimp nets and allow finfish, such as the Southern Tropical snapper, an avenue of escape.

15. While BRDs permit juvenile Southern Tropical snappers to escape, the BRDs also increase the amount of shrimp that can avoid capture. The Republic of Madeira's Marine Fisheries Service estimated that shrimp losses due to BRDs range between 20 and 30%.

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16. As a result of the BRD requirement, the price of shrimp harvested by shrimp trawls in the Republic of Madeira increased by approximately 40%.

17. Shrimp fishermen of the Republic of Madeira strenuously protested the imposition of the BRD requirement. Although legislation was introduced to repeal the BRD requirement, none passed.

18. The segment of the Republic of Madeira's fishing industry dependent on Southern Tropical snapper asserted that the number of adult Southern Tropical snapper continued to be dangerously low because of the shrimp harvesting practices permitted by other nations, especially Ybor.

19. In November 1993, D.S. Mahathir, Secretary of State for the Republic of Madeira, called on all Southern Tropical region nations to meet in June 1994 to negotiate and conclude a multilateral agreement to protect, inter alia, the Southern Tropical snapper from depletion. In his invitation to the nations of the region, Secretary Mahathir stated:

The keystone of the 1992 Rio Declaration on Environment and Development is sustainable development. As a region, we must work together to achieve this laudable objective. One particular area on which we should focus concerns our region's traditional methods of harvesting shrimp.

Although shrimp is not being harvested in a manner that is unsustainable for the shrimp population, the harvesting methods traditionally employed have a grave impact on other aquatic species, especially juvenile Southern Tropical snapper. The bycatch associated with traditional shrimping operations is

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inconsistent with the fundamental principle of sustainable development.

Accordingly, the Republic of Madeira has the honor to invite you to an environmental conference to discuss this important regional issue.

20. In June 1994, representatives of the governments of all nine members of the Southern Tropical region attended an environmental conference, known as the "Snapper Summit," in the Republic of Madeira. The Snapper Summit resulted in a document titled the "Multilateral Agreement on the Southern Tropical Snapper" (MASTS). A representative from each government in the region, including Ybor and the Republic of Madeira, signed MASTS.

21. In pertinent part, MASTS provides:

Article I

The Parties commit to the conservation of ecosystems and the sustainable use of living marine resources related to the Southern Tropical snapper fishery within the Southern Tropical Ocean (STO). The parties shall adopt conservation and management measures that ensure the long-term sustainability of Southern Tropical snapper stocks and other stocks of living marine resources in the STO. Such measures shall be based on the best scientific evidence, including that based on a precautionary methodology, and shall be designed to maintain or restore the biomass of harvested stocks at or above levels capable of producing maximum sustainable yield, and with the goal to maintain or restore the biomass of associated stocks at or above levels capable of producing maximum sustainable yield. These measures and methodology should take into consideration, and account for, natural variation, recruitment rate, individual growth rate, and scientific uncertainty.

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Article II

The Parties commit, according to their capacities, to the assessment of the catch and bycatch of juvenile Southern Tropical snapper and other stocks of living marine resources in the STO and the establishment of measures to, inter alia, avoid, reduce, and minimize the bycatch of non-target species, and to ensure the long-term sustainability of all these species, taking into consideration the interrelationships among species in the ecosystem.

Article III

The Parties commit in the exercise of their national sovereignty to enact and enforce this Agreement through domestic legislation and/or regulation, as appropriate.

* * *

Article XV

The Parties shall consider the following options for action with respect to nations not party to the Agreement, when appropriate:

A. Diplomatic actions

1. Collective representation to the non-Party. This would constitute a communication emanating from a plenary meeting of the participating nations after consultation with the non-Party.

2. Diplomatic communication. Each participating nation, acting individually or in concert with the other nations, would undertake a diplomatic demarche to the non-Party.

B. Public opinion actions

The Parties may disseminate information regarding the non-compliance of the nation to the public through appropriate media, e.g., a press conference.

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C. Operational restrictions

The Parties may restrict access to ports and port servicing facilities for shrimp-fishing vessels of the non-Party. This action should not restrict freedom of navigation and other rights of vessels under international law, and particularly would not apply to vessels in distress. The Parties may also refuse to provide logistical support and/or supplies to shrimp fishing vessels of the non-Party nation. Furthermore, Parties may prohibit their nationals from assisting in any way vessels of the non-Party operating in the fishery.

D. Economic sanctions

Trade measures might include embargoes or other restrictions on the imports of items such as shrimp, other fish products, other marine products, or other products. The consideration of such measures is recognized to be an extremely delicate and evolving policy issue for which few guidelines exist in international law. The Parties should consider whether such sanctions against non-Parties are an appropriate means of promoting compliance with the objectives of the Agreement and whether they are consistent with international law.

22. In September 1994, eight nations ratified MASTS: the Republic of Madeira, Lernihan, New Mastonia, Pinellas, Queensland, Shanen, Sharona, and Stinson. Accordingly, by its own terms, MASTS entered into force on 20 September 1994.

23. Expressing concern about the possible impact on its shrimp industry, the Ybor legislature refused to ratify MASTS. Ybor is presently not a party to MASTS.

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24. Within one year of the entry into force of MASTS, all Parties had enacted domestic legislation that required shrimp trawls to use BRDs in their respective territorial waters. Ybor does not require shrimp trawls within its jurisdiction to use BRDs.

25. On 13 October 1995, the following diplomatic note was forwarded to the Government of Ybor:

The Embassy of the Republic of Madeira presents its compliments to the Government of Ybor and has the honor to respectfully request that the Government of Ybor enter into consultations with the Parties to the Multilateral Agreement on the Southern Tropical Snapper to discuss and assess efforts to harvest shrimp in a sustainable manner.

Please accept the assurance of my highest consideration.

Yours sincerely,

/s/_____________________
B. Bhutto
Ambassador

26. On 2 November 1995, the following diplomatic note was forwarded to the Government of the Republic of Madeira:

The Embassy of Ybor presents its compliments to the Government of the Republic of Madeira and has the honor to acknowledge receipt of the diplomatic note dated 13 October 1995.

The Government of Ybor respectfully declines to enter into consultations with the Parties to the Multilateral Agreement on the Southern Tropical Snapper. The Government of Ybor notes that the Rio Declaration on Environment and Development codifies the fundamental international principle that a state has the sovereign right to exploit its own natural resources pursuant to its own environmental and developmental policies.

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Please accept the assurance of my highest consideration.

Sincerely,

/s/__________________
A.B. Vajpayee
Ambassador

27. After the Government of Ybor declined two additional requests to enter into consultations, on 10 March 1996, the Secretary of State for the Republic of Madeira summoned Ybor's Ambassador and delivered a demarche, which stated:

The Parties to the Multilateral Agreement on the Southern Tropical Snapper strongly condemn the Government of Ybor's refusal to enter into consultations over shared marine resources. Furthermore, the Parties call upon the Government of Ybor to comply with its international legal obligations and require its shrimp trawls to operate in a manner fully consistent with sustainable development. The Parties note that, although Ybor has the sovereign right to exploit its natural resources, that right must be exercised, as mandated in Article 193 of the United Nations Convention on the Law of the Sea, in accordance with its "duty to protect and preserve the marine environment."

28. On 10 March 1996, the Republic of Madeira's Secretary of the Environment and Secretary of Commerce held a joint news conference denouncing the Government of Ybor's resistance to requiring BRDs on its shrimp trawls. The Secretaries urged Madeira's residents to refrain from purchasing any shrimp product imported from Ybor until this dispute was resolved. In particular, the Secretary of the Environment demanded that "the Government of Ybor fulfill its international obligations that it agreed to during the Snapper Summit."

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29. On 5 January 1997, the Republic of Madeira enacted the Snapper Protection Act (SPA). The text of the SPA is as follows:

§ 1. Findings

The Congress makes the following findings:

(a) Traditional methods of harvesting shrimp result in an unacceptable and dangerous level of bycatch of other marine organisms, including juvenile Southern Tropical snapper.

(b) The use of bycatch reduction devices (BRDs) assists in the reestablishment of the Southern Tropical snapper fishery.

(c) The Multilateral Agreement on the Southern Tropical Snapper (MASTS) mandates that nations require shrimp operations in their respective jurisdictions to employ BRDs; BRDs, now required by eight of the nine nations in the Southern Tropical region, are multilateral environmental standards.

(d) The Government of Ybor refuses to require BRDs on shrimp trawls in its jurisdiction, in contravention of the Stockholm Declaration on the Human Environment, the Rio Declaration on Environment and Development, the United Nations Convention on the Law of the Sea, and general principles of international law.

§ 2. Prohibition on import of Ybor shrimp products

The importation of the following items into the Republic of Madeira is hereby prohibited:

(a) any shrimp product of Ybor origin; and

(b) any shrimp product that is or has been located in or transported through Ybor.

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The President may suspend this section when the President certifies that Ybor has either become a party to MASTS and complies with its terms or has adopted a regulatory program that offers substantially the same level of protection to juvenile Southern Tropical snapper as does the Republic of Madeira.

30. A 6 January 1997 statement issued by Ybor President C. Leekpai stated that "the imposition of unilateral economic sanctions by the Republic of Madeira is yet another example of so-called environmental imperialism. The Republic of Madeira asserts that it acts on environmental concerns, when, in reality, it acts to protect its own domestic industries."

31. On 10 January 1998, Ybor and the Republic of Madeira entered into formal consultations in an effort to resolve their differences. After many months of negotiations, no resolution was forthcoming and the two countries agreed to submit this dispute to the International Court of Justice.

32. The Republic of Madeira opposes the claim in paragraph 33 of this Annex and seeks an order of the Court declaring that Ybor's refusal to regulate shrimp operations within its territorial jurisdiction, in light of the impact of those operations on the sustainability of the Southern Tropical snapper population, violates international law.

33. Ybor opposes the claim in paragraph 32 of this Annex and seeks an order of the Court declaring that the imposition of unilateral trade measures by the Republic of Madeira through the Snapper Protection Act violates international law.

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