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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
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]
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
10
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
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
65 Ibid
15