National Law School of India Wins Stetson's Sixth Annual International Environmental Moot Court Competition

Royal C. Gardner
Professor of Law, Stetson College of Law

The National Law School of India University emerged as the champion of the Sixth Annual International Environmental Moot Court Competition, hosted November 1-3, 2001 by Stetson University College of Law in St. Petersburg, Florida. This marked the first time that a team from outside the United States has won the event. The 2001 Competition hypothetcial examined the issue of scientific whaling of humpback and blue whales, conducted by the Federation of Ormond (the Respondent) and opposed by the Republic of Vero (the Applicant). Both are Contracting Governments to the International Convention for the Regulation of Whaling (ICRW), which permits the harvesting of whales for purposes of scientific research. Vero contended that Ormond's scientific whaling constituted an abuse of right under the ICRW and violated the Convention on Biological Diversity. The primary legal issues were whether the International Court of Justice (ICJ) had jurisdiction over this dispute and whether Ormond's conduct was consistent with its international obligations.

The Competition, created by Stetson Professor Royal Gardner and Associate Dean Darby Dickerson, provides an opportunity for law students to explore issues of international environmental law in the context of a dispute before the ICJ. The participants' memorials were evaluated by international environmental legal experts selected with assistance of the IELC, which co-sponsored the event as a public service project for the second year in a row under the direction of Vice Chair Anne Rowley. This year's Competition began in India, where sixteen teams competed in the Indian National Rounds, organized by Vinod Surana of the law firm Surana & Surana. The top three Indian teams then joined students from the United States, Canada, and Mexico for the final rounds in Florida. In all, twenty-four teams from ten states and three foreign countries participated.

Each team of two to three students is required to submit either an Applicant or Respondent memorial brief as though for presentation to the ICJ. On the dates of the Competition itself, competing teams argue the merits of their cases before practitioners in the international environmental law field. The final round was judged by William L. Thomas, chair of the IELC, Violanda Botet of the Office of Legal Adviser, U.S. Department of State, and Dr. John G. Gissberg of Gissberg International Law Office in Seattle. The results of the Competition are listed below.

Champion: National Law School of India University
Runner-up: University of San Diego
Semifinalists: University of Hawaii and Pepperdine University
Quarterfinalists: Florida State University, University of Houston, Stetson University College of Law and Wake Forest University
Best Foreign Team: National Law School of India University
Best Foreign Memorial: Osgoode Hall Law School (Canada)
Best Memorial: Pepperdine University
Best Memorial, Runner-up: University of Florida
Best Oralist, Final Round: Vivek Reddy, National Law School of India University
Best Oralist, Preliminary Rounds: Tim Weekley, Florida State University
Runner-up Best Oralist B Preliminaries: Leilani Tan, University of Hawaii
Third Place Oralist - Preliminaries: Brendan Ford, University of San Diego
Fourth Place Oralist - Preliminaries: Richelle Marsico, Stetson College of Law
Fifth Place Oralist - Preliminaries: Mellonee Meitin, St. Thomas School of Law

The Committee offers its congratulations to all of the participants. Presented below are excerpts of briefs from the competition exploring the issue of whether scientific whaling violates international law. They are from the highest-scoring memorials by the teams from Pepperdine University and the University of Florida, arguing on behalf of Vero and Ormond, respectively.

WHALE HARVESTING AUTHORIZED BY THE RESPONDENT IS A VIOLATION OF INTERNATIONAL LAW BECAUSE IT CONTRAVENES THE CONVENTION ON BIOLOGICAL DIVERSITY AND CUSTOMARY INTERNATIONAL LAW

Daniel D. Droog, Brandon Duane Gleason, and Maureen Sweeney
Pepperdine University School of Law

Since 1997, the Respondent has been killing humpback and blue whales, both endangered species. While Respondent contends that such unsustainable harvesting is its right under Article VIII of the Whaling Convention, it is, in fact, a violation of international law. Both Respondent and Vero are contracting parties to the Convention on Biodiversity (CBD), which forbids the exercise of rights that will result in damage to the environments of other States; Vero has already noted a considerable decrease in the number of blue and humpback whales in its waters, as well as a corresponding decline in its eco-tourism industry. Additionally, Respondent is abusing its right to issue permits for the harvesting of whales for scientific purposes. The data sought is neither necessary, nor is it worth its unacceptable cost: the decimation of magnificent, endangered species of mammals. See Resolution on Whaling Under Special Permit in the North Pacific Ocean, ICW Res. 2000-5 (2000), at http://ourworld.compuserve.com/homepages/iwcoffice/IWCResolutions2000.htm (visited Oct. 3, 2001) [hereinafter ICW Res.]. Such harvesting of endangered species of whales by Respondent violates principles of customary international law including those put forth in the United Nations Convention on the Law of the Sea (UNCLOS), the International Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), and The Rio Convention on Environment and Development (Rio Declaration).

The harvesting of endangered whale species authorized by Respondent violates the Convention on Biological Diversity because it causes damage to the environment and creates a serious threat to biological diversity.

Respondent and Vero, as contracting parties to the CBD, have agreed that "the recovery of viable populations of species in their natural surroundings" is one of the fundamental requirements of the conservation of biological diversity. CBD, supra, preamble, 31 I.L.M. at 822. Additionally, they have assumed the responsibility of global cooperation toward the conservation of biological diversity. Id. By authorizing the harvesting of endangered species of whales, Respondent is not only in violation of these principles, but it has also specifically violated Articles 3 and 22 of the CBD.

The harvesting of endangered whale species causes damage to the environment and economy of Vero and therefore violates Article 3 of the Convention on Biological Diversity.

While the CBD gives states the sovereign right to make use of their own natural resources under their own environmental polices, this right is not unqualified. Id., art. 3, 31 I.L.M. at 824. Article 3 of the CBD confers not only rights, but also the responsibility of ensuring the actions of the contracting State do not "cause damage to the environment of other States or of areas beyond the limits of national jurisdiction." Id. In the present case, the actions of Respondent have caused such damage to the environment of Vero.

Pursuant to Article VIII of the Whaling Convention, Respondent has granted itself annual permits from 1997 to 2000 to harvest two species of endangered whales: up to 50 humpback whales and 2 blue whales. In each of these years Respondent's Department of Ocean Resources has harvested the maximum permitted amount of endangered whales. The IWC estimates that there are approximately 15,500 humpback whales remaining in the world. IWC Whale Population Estimates, at http://ourworld.compuserve.com/homepages/iwcoffice/Estimate.htm (visited Oct. 3, 2001). The estimates of the IWC concerning blue whales are less precise, approximating somewhere between 400 and 1,400 blue whales are still in existence; however, most experts are not optimistic and believe that fewer than 1,000 blue whales are alive today. Id.; see also Peter J. Stoett, The International Politics of Whaling 45 (1997).

Respondent's harvesting of humpback and blue whales has already had a considerable, detrimental effect on the marine environment, as evidenced by a noticeable decrease in the number of whale sightings in the territorial waters and exclusive economic zone (EEZ) of Vero. Not only is there a decrease in the number of whales in the waters of Vero, but whale harvesting has also had a considerable impact on Vero's eco-tourism industry. Respondent's violation of Article 3 of the CBD is therefore twofold: their actions have damaged the marine environment and have also had a negative effect on Vero's economy, an economy that had previously been developing around principles of biological diversity and environmental protection.

The issuance of permits for the purposes of harvesting endangered species of whales causes a serious threat to biological diversity in violation of Article 22 of the Convention on Biological Diversity.

While Article VIII, paragraph 1 of the Whaling Convention recognizes a right to issue scientific permits subject only to "conditions as the Contracting Government thinks fit . . . exempt from the operation of the Convention," this right is not secure from the limitations of other international law, including the CBD. International Convention for the Regulation of Whaling, Dec. 2, 1946, art. VIII, para. 1, 62 Stat. 1716, 161 U.N.T.S. 72. Accordingly, Respondent's argument that its rights to issue scientific permits is limited only to its own restrictions is, at best, specious.

Article 22 of the CBD provides that its provisions will not affect other international agreements "except where the exercise of those rights and obligations would cause a serious damage or threat to biological diversity." CBD, supra, art. 22, para. 1, 31 I.L.M. at 831. A serious threat to biological diversity will therefore create an exception to treaty rights and obligations. Concerning Kasikili/Sedudu Island (Bots. v. Namib.), 39 I.L.M. 310, at 88 (Dec. 13, 1999). The ICJ held in Kasikili/Sedudu Island that "[t]he obligations imposed by the Convention are . . . of such a compelling nature that they cannot be ignored in any determination of defining inter-State rights and obligations if such determination would entail a risk of damage to ecosystems which is was the object of the Convention to protect." Id. The CBD provides, "that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific discovery should not be used as a reason for postponing measures to avoid or minimize such a treat." CBD, supra, preamble, 31 I.L.M. at 822. The unsustainable killing of endangered whale species undoubtedly poses such a threat to biological diversity.

Killing even 50 humpback and 2 blue whales per year contributes to the extinction of these creatures. After their numbers were depleted due to over-hunting in the years following World War II, blue and humpback whales experienced difficulty in replenishing their numbers. See, Stoet, supra, 44. This is not only due to a sheer and incredible loss in numbers (a decrease of up to ninety percent in many whale populations), but also to their extremely slow rate of reproduction. See, Id. The reproductive cycles of blue and humpback whales is very similar, both give birth to calves at intervals of two to three years, and the gestation periods of are both between eleven and twelve months long. American Cetacean Society Blue Whale Fact Sheet, at http://asconline.org/factpack/bluewhl.htm (visited Oct. 3, 2001); International Fund for Animal Welfare Humpback Whale Fact File, at http://www.ifawct.org/whaledb/whale13.htm (visited Oct. 3, 2001).

In harvesting endangered whale species, Respondent is therefore creating a threat to biological diversity that rises to the level anticipated by the CBD and prohibited in Article 22. Accordingly, the killing of endangered whales by Respondent violates the CBD.

The harvesting of endangered whale species authorized by Respondent violates customary international law.

The "abuse of right" doctrine is one of many principles, which have become a part of customary international law. See, Ian Brownlie, Principles of Public International Law 444 (4th ed. 1990); See also, Harold Hohmann, Precautionary Legal Duties and Principles of Modern International Environmental Law 12 (1994). Respondent has abused its rights under the Whaling Convention, Article VIII to harvest whales for the purposes of scientific research and in doing so has also violated customary international law, as whales chosen by Respondent for "Ascientific study" are endangered, and the data sought does not justify threatening the species with extinction. See, IWC Res., supra.

Respondent's issuance of permits to harvest endangered species of whales is an abuse of the rights granted it under the Whaling Convention.

An "abuse of right" occurs when damage is caused to one party by another's exercise of an otherwise legitimate right. Brownlie, supra, at 444. The principle of abuse of rights may reasonably be regarded as a general principle of law. Id. at 445. International principles of abuse of right have been reinforced by the recent decisions of international tribunal decisions. Gillian Triggs, Japanese Scientific Whaling: An Abuse of Right or Optimum Utilisation?, 5 Asia Pacific J. Envtl. L. 33, 35 (2000). For example, in the South West Africa Cases (Second Phase), certain discretionary powers of South Africa were found to be limited and could not be used "for a purpose different from that stipulated in the mandate [because s]uch acts would be an abuse of power." (Eth. v. S. Afr.; Liber. v. S. Afr.), 1965 I.C.J. 5 (Mar. 18) (Judge Tanaka at 480-81). Additionally, in the Shrimp/Turtle Case, the WTO Appellate Body held that a United States import ban on shrimp and shrimp products from countries that did not require the use of turtle excluder devices was a violation of WTO rules. United States B Import Prohibition of Certain Shrimp and Shrimp Products, Oct. 12, 1998, 38 I.L.M. 118, at 5. The United States argued that it was acting within the rules of the WTO, but the Appellate Body would not allow the United States to abuse its rights under the treaty, holding that "whenever the assertion of a right impinges on the field covered by [a] treaty obligation, it must be exercised bona fide, that is to say reasonably." Id. at 158 (citing B. Cheng, General Principles of Law as Applied by International Courts and Tribunals 125 (1953)).

Finally, the doctrine of abuse of rights is also included in UNCLOS. Article 300 of UNCLOS states that maritime rights must be exercised "in a manner which would not constitute an abuse of right." United Nations Convention on the Law of the Sea, Dec. 10, 1982, 21 I.L.M. 1261, at 1326 (emphasis added) [hereinafter UNCLOS]. As a "general principle[] of law recognized by civilized nations," the abuse of rights doctrine is a source of international law subject to the jurisdiction of the ICJ. Statute of ICJ, supra, art. 38(1)(c), 59 Stat. 1055, T.S. No. 993.

Respondent's contention that the whaling moratorium itself is an abuse of the rights of the Whaling Convention is completely erroneous. While Respondent is correct in asserting that the Whaling Convention's purpose is not specifically to bring an end to the whaling industry, its motives toward preservation of biological diversity in the marine environment are entirely appropriate. Said this Court in Kasilkili/Sedudu Island, "[e]nvironmental standards transcend temporal barriers . . . today's standards attach themselves to yesterday's transactions, and must be given due effect in judicial determinations stemming from them." 39 I.L.M. 310, at 89. In instituting the moratorium, the Whaling Convention simply recognized that whales were in danger of becoming extinct and instituted changes that would protect them. The Whaling Convention acknowledged what this Court made note of in Gabcikovo-Nagymaros Project, as well, that "environmental protection, vigilance and prevention are required on account of the often irreversible character of damage to the environment and of the limitations inherent in the very mechanism of reparation of this type of damage." (Hung. v. Slovk.), 1997 I.C.J. 7, at 140 (Sept. 25).

The "scientific purposes" given for harvesting endangered whale species by Respondent do not justify the killing of whales according to the Whaling Convention and therefore constitute an abuse of rights granted under the Whaling Convention.

Respondent asserts that the scientific research it performs on blue and humpback whales is aimed at determining the eating habits, age, and sex of the whales. This is an inappropriate justification for the killing of endangered species of whales for at least two reasons.

First, the eating habits of both blue and humpback whales have been studied extensively; a wealth of information exists on the subject. It is relatively common scientific knowledge that humpback whales are carnivores that feed mainly on herring and krill which they scare to the ocean's surface using noise, bubbles, and fin movement. Virtual Whales, at http://www.cs.sfu.ca/research/projects/Whales/(visited Oct. 3, 2001). Blue whales feed on krill almost exclusively, and can consume up to forty million of them each day. American Cetacean Society Blue Whale Fact Sheet, supra.

Second, not only are the permits issued by Respondent suspicious under the guidelines of the IWC's Scientific Review Committee, but it has affirmatively denounced such research. All proposed "scientific research" permits have to be submitted for review by the IWC's Scientific Committee. The Revised Management Procedure of the IWC Scientific Review Committee, at http://ourworld.compuserve.com/homepages/iwcoffice/Estimate.htm (visited Oct. 3, 2001) [hereinafter RMP]. In reviewing permits, the Scientific Committee focuses on a number of issues, including whether or not the research "is essential for rational management, the work of the Scientific Committee or other critically important research needs." Id. As discussed above, the information sought by Respondent is anything but "critically important." Further, in a resolution passed by the IWC in 2000, it affirmed that "gathering information on interactions between whales and prey species is not a critically important issue which justifies the killing of whales for research purposes." IWC Res., supra. In this resolution, the Whaling Convention "strongly urged" Japan to abstain from issuing permits which would allow the harvesting of minke, sperm, and Bryde's whales for "scientific purposes." Id. Both sperm whales and Bryde's whales, like blue whales and humpback whales, are endangered species.

Non-lethal methods of conducting scientific research are available to Respondent and have been recommended by the International Whaling Commission's Scientific Committee.

Numerous non-lethal methods of collecting data about whales are at the disposal of Respondent. Simon Fraser University has employed a number of research tools in its study of humpback whale diet and behavior. Virtual Whales, supra. These methods include dive tags, hydrophones, and sonar; researchers interpret the data collected by using 3D graphics and sound. Id. The Revised Management Procedure of the IWC has made use of computerized whales and population behavior simulated over long periods of time. RMP, supra. The IWC, likely in recognition of the number of non-lethal methods of scientific experimentation available, has proposed that information that is relevant to management be obtained by non-lethal means. IWC Res., supra.

In summary, the "scientific purposes" given by Respondent are not scientifically necessary and have even been officially disapproved of by the IWC's Scientific Committee. Id. Further, there are non-lethal methods of conducting research that Respondent has not investigated, which would provide the information they wish to obtain. Respondent is therefore abusing its right under the Whaling Convention to harvest whales for the purposes of "scientific research."

The harvesting of endangered species of whales by Respondent violates principles of customary international law.

Harvesting of endangered whale species conducted by the Respondent violates various principles of customary international law. Killing blue and humpback whales flies in the face of international policies of protecting cetaceans. Such preservation has risen to the level of international customary law; it has both endured and has been followed consistently. See, Brownlie, supra, at 5.

Although Article 61 of UNCLOS allows contracting coastal states to determine, based on the best scientific evidence available, the permissible catch of living resources in their own EEZ, Article 65 extends special protections to cetaceans. UNCLOS, supra, art. 61(1)-(2), 21 I.L.M. at 1281. It states that "States shall co-operate with a view to the conservation of marine mammals and in the case of cetaceans shall in particular work through the appropriate international organizations for their conservation, management, and study." Id., at art. 65, 21 I.L.M. at 1282. This protection applies in the country's EEZ as well throughout the high seas. Id., at art. 120, 21 I.L.M. at 1291. Additionally, CITES provides for "particularly strict regulation in order not to endanger further" the survival of endangered species and specifically identifies both blue and humpback whales. International Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar. 3, 1973, art. II, para. 1; app. I, 993 U.N.T.S. 243, 12 I.L.M. 1088, at 1096.

The principle of sustainable development applies the notion that one should not use their property in a way that injures another. Virginia Dailey, Sustainable Development: Reevaluating the Trade vs. Turtles Conflict at the WTO, 9 J. Transnat'l L. & Pol'y 331, 342 (2000). Hence,states should not use their resources in a way that would prevent other states from using and enjoying those resources today and in the future. Id. This principle, incorporated into Principle 21 of the Stockholm Declaration in 1972, was reinforced in 1992 when it was included in Principle 2 of the Rio Declaration. Report on the United Nations Conference on the Human Environment, Stockholm, June 5-16, 1972, prin. 21, U.N. GAOR, 27th Sess. UN Doc. A/CONF. 48/14 (1972) 11 I.L.M. 1416, 1420; The Rio Convention on Environment and Development, June 13, 1992, U.N. Doc. A/Conf.151/5/Rev.1, 31 I.L.M. 874, 876.

Respondent is in violation of both of these principles of customary international law. First, Respondent is blatantly exterminating blue and humpback whales, both of which are migratory cetaceans and endangered species given special protection by both UNCLOS and CITES. Second, in harvesting these whales, Respondent has caused considerable damage to the biological diversity of the marine environment of Vero. The citizens of Vero are unable to enjoy present use of their resources, as they have found themselves with too few whales to watch and hence, a dwindling eco-tourism industry. Future citizens of Vero may or may not enjoy blue and humpback whales, as Respondent's reckless, unsustainable killing of these endangered creatures threatens their existence and hastens their extinction.

In conclusion, Respondent is contravening the CBD by destroying Vero's marine environment and economy and creating a significant threat to biological diversity. Moreover, Respondent is abusing its rights under international law and is also violating customary international law.

THE FEDERATION OF ORMOND DID NOT VIOLATE INTERNATIONAL LAW BY ENGAGING IN THE PRACTICE OF WHALE HARVESTING

Jason Gonzalez, Jeremy Sharon, and Michelle Ralat
University of Florida School of Law

International law explicitly permits Ormond to engage in the practice of whale harvesting for scientific purposes.

The International Convention for the Regulation of Whaling clearly outlines the powers afforded to each contracting government with respect to the harvesting of whales. See International Convention for the Regulation of Whaling, 1982, 161 UNTS 72. Above all, Article VIII of the ICRW places two compelling freedoms within the power of Ormond's discretion. Id. at Art. VIII.

The first compelling freedom outlined in Article VIII is the complete sovereignty to decide whether to "kill, take, and treat whales for the purposes of scientific research." Id. Furthermore, a strict reading of Article IV also suggests that states are obligated to "take all practical measures" to ensure that marine based scientific data is gathered. Id. at Art. IV. Therefore, while the ultimate power to determine whether to engage in whale harvesting for scientific experimentation clearly remains in Ormond's hands. Article VIII goes on to require Ormond to engage in whale harvesting for scientific experimentation whenever practicable.

The second most compelling freedom granted by Article VIII is the freedom to determine what, if anything, nations are to do with the excess portions of any whale harvested for scientific experimentation. Id. at Art. VIII. This ICRW provision is important for two reasons. First, this provision demonstrates that the framers of the ICRW, along with the rest of the international community, expected that scientific experimentation would result in whale byproducts. Second, this provision implicitly suggests that the mere existence of whale products in the consumer market is not a sufficient basis upon which to conclude that a state has violated international law. In short, the ICRW expects that scientific research will involve whale harvesting.

Therefore, Ormond's practice of harvesting whales for the purpose of scientific experimentation does not support a finding that Ormond has violated international law. Furthermore, Ormond's use of the whale's remains to create byproducts that are sold on the consumer market does not support a finding that Ormond has violated international law.

The International Whaling Commission has found no scientific justification for a complete ban on whale harvesting.

For the last thirty years, the International Whaling Commission (IWC) has stated that, "a blanket moratorium cannot be justified scientifically." See IWC/24TH REPORT/1972, Report of the Scientific Committee, 28. When the UN Generally Assembly convened the Stockholm Conference on the Human Environment in 1972 (SCHE), its primary purpose was to identify problems and coordinate solutions for the environmental problems plaguing the world. See Anthony D'Amato and Sudir K. Chopra, Whales: Their Emerging Right to Life, 85, 38-39 A.J.I.L. 21 (1991); UN Conference on the Human Environment, June 16, 1972, 11 I.L.M. 1416. At the time, whale stocks were so depleted that a ban on commercial whaling seemed to be exactly what the international community demanded from the SCHE. Even though legal scholars and environmentalists agree that the purpose of the conference was not to develop or endorse an action plan for dealing with the depletion of whale stocks, the members of the SCHE formed a committee was designed to study the "environmental aspects of natural resource management." Id. With little reflection, the committee recommended a ten-year moratorium on whaling. Id. The IWC found that the committee's recommendation for a complete moratorium lacked scientific merit. Id.

The IWC's position makes it clear that: (1) the STHE's second committee's conclusions were not adequately based on scientific data; and (2) valid scientific experimentation requires whales to be harvested. With whale stocks enjoying the benefit of a complete moratorium on commercial harvesting for nearly twenty years, it is clear that harvesting will provide the only scientifically reliable means for determining whether it is necessary to continue the moratorium on commercial harvesting. Harvesting is the only method that can be used to obtain important scientific data, because it is the only way by which to examine the contents of the whale's stomach and to determine both the age and sex of the whale. Thus, Ormond's conduct plays an integral part in assessing the state of the whale population and is consistent with the position of the IWC.

Vero has not presented sufficient evidence to show that Ormond's practices have caused an injury worthy of redress.

During its twenty-fifth meeting, the IWC's Scientific Committee reaffirmed and elaborated on its view that there was no biological need for a complete moratorium on commercial whaling and that such a move would work against the objectives of both the STHE and the IRCW. See Patricia Birnie, International Regulation of Whaling, 66 (1985) at 408; See also D'Amato and Sudir, Whatles: Their Emerging Right to Life at 38-40. The Scientific Committee further drew attention to the lack of scientific evidence of adverse effects on the ecosystem. Id.

Similarly, Vero's contention that there has been a decline in the number of whales found off its coast is not persuasive, because the observation of its tour boat operators is not scientifically valid data. Furthermore, the IWC's findings suggest that Ormond's practice of engaging in scientific whale harvesting does not adversely affect Vero's ecosystem. Therefore, this Court should find that Vero has not met its burden of proof and declare that Ormond is not in violation of international environmental law.

The Convention on Biological Diversity does not recognize the damage caused to Vero's economy as a sufficiently palpable injury.

The Convention on Biological Diversity gives Ormond the sovereign right to exploit its own "resources" as long as Ormond does not cause damage to Vero's "environment." UN Convention on Biological Diversity, June 5, 1992, 31 I.L.M. 814. However, the economic loss that Vero has experienced in its tourist industry is not the type of injury against which Article 3 of the CBD intended to safeguard. Perhaps the most logical basis for this rationale is that Vero's economic environment is highly distinguishable from its biological environment. The protections afforded by the CBD's provisions have nothing to do with Vero's economy and everything to do with its biodiversity. As a result, the only relevant question is whether the whales, which are found within Ormond's territorial waters and EEZ can be considered a resource as contemplated by the CBD.

Article 2 of the CBD states that "Biological resources includes genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with actual or potential use or value for humanity." CBD at Art. 2. Article 2 makes it clear that the whales found within the costal waters of Ormond are "biological resources." Whales satisfy the definition of "populations" as suggested by Article 2 and they have "actual use and value" for humanity. Legal scholars and scientists who believe that whale experimentation has the potential to reveal valuable cures and other important scientific insight have continuously supported this rationale. Additionally, the phrase "value for humanity," as used in Article 2, goes beyond mere scientific value. In fact, a strict reading of the language clearly suggests that "value" may be a cultural consideration. It is clear from the record that whale meat is an integral part of the Ormond culture as evidenced by its use in weddings and other important cultural events. As a result, the cultural value that the whales hold for the people of Ormond is, in itself, sufficient to define the whales of Ormond as "biological resources."

International law requires Ormond to engage in whale harvesting for scientific purposes.

The United Nations Convention on the Law of the Seas' definition of "conservation" requires Ormond to engage in whale harvesting for scientific purposes.

The definition of "conservation" lies plainly within Article 61 of the United Nations Convention on the Law of the Seas. U.N. Convention on the Law of the Seas, Dec. 10, 1982, I.L.M. 1261. True "conservation" requires States to use, contribute, and exchange "scientific information, catch and fishing effort statistics, and other data . . . on a regular basis." Id. at Art. 61. It is clear from Article 61 that the purpose of "conservation" is to encourage states, like Ormond, to take "such measures . . . designed to maintain or restore populations of harvested species at levels that can produce the maximum sustainable yield." Id. Consequently, there is a clear distinction between "conservation" and "preservation." Id. Perhaps the most compelling distinction is that whale harvesting for scientific purposes is appropriate under "conservation" and inappropriate under "preservation." See generally D'Amato and Chopra, Whales: Their Emerging Right to Life, A.J.I.L. 21 (1991). The purpose of conservation is to use scientific experimentation to determine at what levels species can produce the maximum sustainable yield. Id. at 33; See Also William C. Burns, The International Whaling Commission and the Future of Cetaceans: Problems and Prospects, 8 Colo. J. Int'l Envtl. L. & Pol'y 31, 54-55 (1997). Conversely, the aim of preservation is to take species that have reached critically low population levels back up to levels that are appropriate for scientific experimentation by ceasing the practice of whale harvesting altogether. See 85 A.J.I.L. 21, at 46.

In short, there are three whale population stages. In the first stage, the whale population is at a level strong enough to sustain the commercial demand. This stage is known as "maximum sustainable yield." In the second stage, the whale population is only strong enough to sustain a consistent level of scientific experimentation geared towards developing new ways to return the population back to the level of maximum sustainable yield required in the first stage. This stage is known as "conservation." Finally, during the third stage, the whale population level is considerably low and may even face possible extinction. Here, the goal is to eliminate harvesting in an effort to return the whale population to a level where scientific experimentation can resume once again. This stage is known as "preservation."

The stance taken by the ICRW, CBD, UNCLOS, and the Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas make it clear that today's international environment is in a stage of conservation. As a testament to this position, each of these bodies of international law has: (1) proffered language which includes the term "conservation," (2) excluded the term "preservation," and (3) made it clear that there is a great need for whale research.

The Geneva Convention on Fishing and Conservation's definition of "conservation" requires Ormond to engage in whale harvesting for scientific purposes.

Ten years after the establishment of the IWC, the 1958 Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas (GCFCLR) was signed. See Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, 17 UST 138, TIAS No. 5969, 559 UNTS 285 (entered into force Mar. 20, 1966). At the conclusion of that convention, thirty-eight countries, including eleven developed nations, agreed to adopt two resolutions to strengthen the effectiveness of the international conservation organizations and to further support the use of international conservation conventions. See The first resolution, Resolution on International Fishery Conservation Convention. To that end, the parties agreed on a common mode of operation. That mode is embodied in the convention's definition of the phrase "conservation of the living resource of the high seas." Id. at Art. 2.

Article 2 of the GCFCLR defines "conservation" as the states' responsibility to take measures aimed at securing the maximum sustainable amount of food and other products from marine animals. Id. In short, the quintessential goal of "conservation" is to find the point at which a supply of whales can be provided for the commercial whaling industry while simultaneously ensuring that enough marine mammals will be left to perpetuate a sustainable yield the following year. See 85 A.J.I.L. 21 at 46. The reiterates these ideas by further stating that, "Conservation programmes should be formulated with a view to securing in the first place a supply of food for human consumption." Id.

Thus, Ormond's practice of harvesting whales for scientific experimentation is nothing more than effective "conservation." Unlike Vero, whose basis of scientific data comes from the observations of its tour guides, Ormond uses scientific experimentation to determine the most effective way of allowing the commercial whaling cycle to continue indefinitely. Ormond's practice of harvesting whales for scientific purposes is consistent with the GCFCLR and the central focus of "conservation."

The Republic of Vero has perpetuated an "abuse of right" by seeking to enjoin Ormond from exercising a right granted authorized by binding international law.

In recent jurisprudence, several courts and legal scholars have acknowledged the doctrine of "abuse of right." See 1955 ICJ Reports 4 at 370; See also Gillian Triggs, Japanese Scientific Whaling: An Abuse of Right or Optimum Utilisation?, 5 Asia Pacific J. Envtl. L. 33, 37 (2000). The doctrine of "abuse of right" aims to prevent States from using their sovereign power to achieve ends which are inconsistent with the ultimate goals of the protections afforded to other states under customary international law. See generally, Case Concerning the Barcelona Traction, Light and Power Company, Ltd. (Belgium v. Spain), 1964 I.C.J. 6 (Judgment of July 24). Thus, a state has "abused its rights" when it exercises its sovereign power to prejudice the rights previously granted to another States under international law. See United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/13 at 158 (Oct. 12, 1998). In The Case Concerning the United States-Import Prohibition of Shrimp and Shrimp Products, the United States used its sovereign power to pass the United States Shrimp/Turtle law, which effectively eliminated the rights of India, Malaysia, Pakistan and Thailand to export shrimp and shrimp products to the United States. Id. In so doing, the United States took away the rights previously granted to India, Malaysia, Pakistan and Thailand by the WTO and GATT. Upon review, the WTO found that the United States' actions prevented India, Malaysia, Pakistan, and Thailand from exercising their rights pursuant to international law.

Vero's failure to submit to arbitral tribunals has prejudiced Ormond's rights under Article 27, paragraph 3 of CBD. Additionally, a successful pursuit of Vero's complaint will serve to prejudice the rights that Ormond has been granted under the ICRW. In other words, Vero's claim seeks to remove Ormond's right to engage in scientific harvesting in violation of binding international law. Thus, Vero has engaged in an "abuse of right."

A Government who opposes the scientific practices of another State is only entitled to prohibit that practice from taking place within its own Exclusive Economic Zone.

Traditionally, the only recourse afforded to a state who disapproves of the conduct of another State on the high seas is to use the power granted to it by UNCLOS to prohibit the unwanted conduct from taking place within its own territorial waters. See U.S. Packwood-Magnuson Amendment, Pub. L. No. 94-265, 90 Stat. 331 (1976). The Packwood-Magnuson Amendment to the Fisher Conservation and Management Act of 1976 demonstrates the best example of this defensive measure. Id. Under the Packwood-Magnuson Amendment, the United States secretary of State is required to reduce a nation's fishing quota within U.S. territorial waters by at least fifty percent if the secretary of Commerce has certified that the nation acted to diminish the effectiveness of the ICRW. Id. In short, while Vero may limit Ormond's harvesting practices within Ormond's own EEZ, any retaliatory measure that unreasonably prejudices Ormond's rights is against international policy.

Ormond's scientific experimentation was conducted in "good faith" because the harvested whales were only used for scientific research.

The doctrine of "good faith" is the most commonly used standard under which a State's conduct is evaluated. This doctrine has been used to help courts determine whether a particular State has inappropriately loosened or tightened the scope of a particular body of international law so as to achieve an unjustified goal. In the instant case, Ormond's actions are consistent with promoting the universally embraced goal of "conservation."

Ormond acted in "good faith" because the number of whales it harvested is was below those historically objected to by the International Whaling Commission.

Ormond has not acted in "bad faith" because it only harvests an average of one whale per week. This number is historically low in comparison to other countries to which the International Whaling Commission has historically objected. For the ten-year period between 1986 and 1996, Japan harvested an average of 300 whales per year under the guise of Article VIII. See Colin Nickerson, In Japan, Saving Whales Means Losing a Lifestyle, Boston Glove, June 21, 1991, at 1. Japan harvested 327 minke whales during the 1991 season alone. See WWF Calls on International Whaling Commission to Uphold an, Expand Protections of Small Cetaceans, U.S. Newswire, May 27, 1991. Japan continued this trend by taking 440 whales in 1995 and 540 in 1996. See Robert Whymant, Japan Launches Secretive Whale Hunt "for Science," The Times (London), July 1996. Today, Japan is suspected to be harvesting over 500 whales a year. These figures make it clear that Japan's scientific plan was nothing more than a bad faith effort to use Article VIII as a means of sustaining a healthy consumer whale market. Similar allegations have been made about other nations, like Norway, whose scientific whale harvesting numbers are alarmingly high. In 1994, USA TODAY released a story suggesting that nations like Norway and Japan were attempting to use their excessive harvests to boost international trade. See Susan Sabella, Total Ban on Whaling is Essential, USA Today, Jan. 27, 1994 at 6c. Clearly, Ormond's harvest of fifty-two whales per year does not shock the conscience when compared to the numbers posted by other countries like Japan. The sheer reasonableness of Ormond's numbers suggest that Ormond has made a good faith attempt to use the powers afforded by Article VIII for the benefits of science rather than the commercial marketplace.

Ormond acted in "good faith" because it did not engage in the practice of scientific harvesting in order to support an active consumer market.

Ormond did not engage in the practice of whale harvesting to support an active consumer market. In 2001 Japan introduced 2,000 tons of whale meat into the commercial whale market. See Robert Whymant, Japan Slaughters 400 Minke Whales, The Times (London), April 12, 2001. As a result, whale bacon costs dropped to an average of $150 per pound and $5 per slice. See Calvin Sims, Japan, Feasting on Whale, Sniffs at "Culinary Imperialism" of U.S., The New York Times, August 10, 2000. Similarly, a pound of whale stomach averaged nearly $15 per pound. Lisa Takeuchi Cullen, Wailing over Whales, Time Magazine, August 6, 2001. These figures, although somewhat high, remain affordable to consumers only because of the tremendous supply brought in by Japanese conservation groups. In Ormond, however, a harvest of fifty-two whales is well below the amount that would be necessary to create affordable consumer prices. Since Ormond intends to harvest one-tenth of the Japanese supply, the price of one pound of whale bacon in Ormond would far exceed the average Ormonders ability to purchase it for everyday consumption. Thus, the low number of whales sought by Ormond clearly indicates that it is engaged in a good faith effort to conduct scientific research.

The steady number of whales demanded by Ormond is demonstrative of a "good faith" effort to conduct valid scientific research.

Ormond has acted in good faith because it has harvested a consistent number of whales each year in order to gain a valid sample size upon which to base its scientific findings. In the last several years, Japan has gradually increased the number of whales being harvested for scientific research. These numbers have risen from 300 whales in 1986 to over 500 whales in 2000. See Colin Nickerson, In Japan, Saving Whales Means Losing a Lifestyle, Boston Glove, June 21, 1991, at 1. These increases clearly suggest that the number of whales Japan harvests for scientific research has a direct correlation with the tonnage of whale their consumer market demands. Conversely, the consistent number of whales harvested by Ormond each year evidences its good faith effort to conduct valid scientific research. Harvesting a consistent number of whales each year is commensurate with maintaining a reliable scientific sample size.

The evidence in the record makes it clear that Ormond's conduct does not exceed the limitations set by international law. Ormond's harvest of fifty-two whales per year is reasonable when compared to that of other nations who also engage in scientific experimentation. Consequently, there is no evidence to support a finding that Ormond is harvesting whales in an effort to support an active consumer market. Moreover, Ormond's effort to maintain consistency and reliability in its scientific data requires it to continue harvesting the same number of whales each year. Unless Vero can proffer credible scientific evidence indicating that the whales within Ormond's territorial waters and EEZ are in danger of becoming extinct, this Court must rule in favor of Ormond.

International law explicitly gives Ormond complete sovereignty to exploit and manage the living natural resources within its exclusive economic zone.

The United Nations Law of the Seas, to which Ormond is a party and Vero is a signatory, is customary international law. Under Article 55, Ormond is given the exclusive right to exploit and manage whatever non-living resources may exist within its EEZ, that area which extends two hundred nautical miles beyond Ormond's coastline. See U.N. Convention on the Law of the Seas, Dec. 10, 1982, 21 I.L.M. 1261, 55(1)(a); Id. at Art. 57. Ormond's whales are harvested within its territorial waters and EEZ. As a result, customary international law gives Ormond the discretion to determine how many whales will be harvested each year.

Furthermore, Article 55 of the UNCLOS gives Ormond sovereign jurisdiction over all mammals found within the EEZ that are used for scientific purposes. Id. at Art. 55(1)(b). The only limitation expressed by the UNCLOS is that the exploitation of marine mammals must be conducted in furtherance of conservation. Id. at Art. 55(3). Since the ICRW considers whales as a class of living things that may be used for scientific purposes, Ormond should have complete jurisdiction over the whales, which are found within its territorial waters and EEZ.

International law explicitly gives Ormond complete sovereignty to determine how many whales will be harvested each year.

Article 61 of the UNCLOS gives coastal States, like Ormond, the authority to determine how many whales will be harvested within its EEZ. Id. at Art. 61. UNCLOS also requires Ormond to consider the "best scientific evidence available" in making its decision. Id. at Art. 61(2). Thus, Article 61 places two burdens on Ormond when determining how many whales to harvest. First, Ormond must engage in the practice of scientific experimentation in order to ensure that it (and others like it) has the most reliable scientific data available. Id. at Art. 61. Second, Ormond must use the best scientific evidence available to ensure that it is not over-exploiting the living resources within its EEZ. Id.

Absent any showing that Ormond has not complied with the obligations imposed by the UNCLOS, Ormond has the exclusive right to determine how many whales to harvest each year. Article 62 of the UNCLOS also supports these conclusions. Article 62 gives Ormond complete discretion to determine its capacity to harvest the living resources of the EEZ.

The foregoing arguments make it clear that the various bodies of international law allow and encourage Ormond to establish scientific programs geared towards fostering conservation and providing for the sustainable use of its whale population. Ormond's scientific research contributes to the goal of conservation by enhancing the international community's understanding of the whale population. As a result, Vero is estopped from raising any objection to Ormond's harvesting practices.