Manifest Stetson college of law – Florida

I can do it and I will do the memo by 30.8.2024

Arguments: Applicant – Astor
ARGUMENTS ADVANCED:
THE TROPHY HUNTING OF THE ROYAL MARKHOR THROUGH RISHMAK'S
AUCTION PROCESS VIOLATES CONVENTIONAL INTERNATIONAL LAW.

I. VIOLATION OF INTERNATIONAL CONSERVATION TREATIES AND STATE

RESPONSIBILITY

A. Contravention of the Convention on the Conservation of Migratory Species of Wild

Animals (CMS)

1. Violation of CMS Article II (2) and (3) (c)

Rishmak’s permit for trophy hunting of the Appendix – I listed Royal Markhors violates

Article II (2), which requires the parties to the convention to take action to avoid the

migratory species from being endangered1, which is clearly not fulfilled by Rishmak.

Further, Rishmak violates Article II (3) (1), which necessitates the parties to provide

immediate protection for Appendix – 1 listed species 2, which Rishmak has failed to

provide by sanctioning the right to trophy hunt the Royal Markhors.3

2. Violation of CMS Article III's prohibition on taking Appendix I species

Rishmak has violated Article III of the CMS by allowing trophy hunting of the

endangered Royal Markhors, which is listed under Appendix 1 of the CMS. 4 The

convention provides for the highest level of protection to species listed in Appendix I 5
1
CMS
2
CMS
3
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4
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5
CMS
 and Article III of the CMS prohibits the “taking” of Appendix 1 – listed species. 6

Therefore, by such an allowance for trophy hunting, Rishmak outrightly violated the

purpose of the the convention.

3. Inapplicability of exceptions under CMS Article III, paragraph 5 (b), 5(c) & 4 (c)

a. Hunting does not enhance species survival and further endanger the species

Article III (5) provides for certain narrowed exceptions, including taking the species

for the purpose of enhancing the propagation or survival of the affected species – Article

(5) (b). It is also stated by the convention that the exceptions must be precise as to content

and limited in space and time and should not operate to the disadvantage of the species. 7

Rishmak does not fall under the exception due to Rishmak’s permit of trophy hunting of

the male Royal Markhors8 as it operates disadvantageously towards the species, and it

does not enhance the propagation or survival of the species. This is since male Royal

Markhors generally live in solitary, the hunting of which increases the chances of

extinction due to the Allee effect, where essentially, the species would face difficulty in

finding mates to reproduce when the population of such species drops too low. 9 The

generally solitary male Royal Markhors, which form only 20 percent, 10 are already less in

population and are highly prone to the Allee effect. Additionally, the trophy hunting, even

with the cap of 10 Royal Markhors annually, exacerbates the chances of their extinction

due to difficulties in reproduction. This eventually violates Article III (4) (c), which

6
CMS
7
https://www.cms.int/sites/default/files/document/cms_cop13_doc.21_application-article-lll-of-the-
convention_e_0.pdf
8
Prop
9
https://www.nature.com/scitable/knowledge/library/allee-effects-19699394/
10
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 requires the states to prevent factors that further endanger the survival of the species. 11

Therefore, trophy hunting additionally endangers the already endangered Royal

Markhors.

The commercial nature of the hunting invalidates claims of traditional

subsistence use

Rishmak is not justified in taking the species to accommodate the needs of the

subsistence users under Article III (5) (c). The exorbitant bidding amounts ranging

from 100,000 USD to 150,000 USD12 indicate it to be a commercial hunting rather for

subsistence use of the indigenous community- this argument would be further

substantiated upon in detail in the upcoming part of the submissions. Further,

Rishmak is not justified because it did not exercise its exception with precision as

required by Article III as the exception explicitly provides only for “traditional

subsistence users.”13 However, in the present case, Dione Ginsu themselves do not

conduct the hunting and have auctioned off the Right to Hunt to foreign nationals, 14

which is not applicable.

Breach of the Convention on International Trade in Endangered

Species (CITES)

Violation of CITES provisions for Appendix I species

Article II of CITES provides for strict regulation of the trade of the Appendix – 1 listed

species to not further endanger the survival of the species with authorization only in
11
CMS
12
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13
CMS
14
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 certain exceptional circumstances (like for scientific purposes) 15 and generally prohibits

commercial trade.16 Rishmak has clearly violated its obligations under the convention to

offer a strict regulation of the trade of Appendix I listed Royal Markhors by auctioning

them off to foreign nationals for high bidding amounts and setting aside only 15 percent

of the revenue for their conservation purposes17 with subsequent exports subjecting them

to commercial exploitation. Further, Article III (2) (b) requires the export of the species to

not contravene the state laws that protect flora and fauna. Rishmak violated this by

allowing foreign nationals to hunt the Royal Markhors as Rishmak had a statute that

strictly prohibited the taking of Royal Markhors with an exception only to the Dione

Ginsu community.

Insufficiency of Rishmak's non-detriment finding

Article III (2) of CITES requires a scientific authority of the exporting state to confirm

that trading of Appendix 1 species will not be detrimental to the species’ survival, known

as non-detriment finding. Resolution 16.7 necessitates the scientific authorities to

consider the species’ vulnerability, population status, threats, species range, historical and

current species-specific levels and patterns of harvest and mortality (e.g. age, sex) etc.

along with the methodology to be employed rigorously for a wild specimen.18

The Royal Markhors, once ranged over six different countries, significantly dwindled to

only 2200 individuals due to habitat loss, diseases, and hunting – the species is already

highly vulnerable. The threat of Mycoplasma capricolum disease and the auctioning off

the hunting of solitary male royal markhors that make up to only 20 percent of the

15
CITES
16
CITES | Pages | WWF (worldwildlife.org)
17
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18
Resolutions (cites.org)
 population increases the threshold of its vulnerability. Therefore, in consideration of all

the circumstances, Rishmak has not employed a rigorous scientific study required in the

case of wild Royal Markhors,19 and its non-detriment finding is insufficient for the grave

situation of the endangered species as per Resolution 16.7. Hence, Rishmak fails to fulfill

the condition to trade the Royal Markhors listed in CITES Appendix -1.

Contravention of CITES Resolution 17.9

The trophy hunting auction by the Dione Ginsu community defeats the purpose of

Resolution 17.9, which calls for hunting trophies that successfully operate for both the

benefit of the species that contribute to species conservation and benefits for rural

communities and the Resolution necessitates a sustainable trophy hunt. It further urges

for the ample investments by the Range states in non-detriment findings. 20 Rishmak’s

trophy hunt auction does not serve proportionate benefits to the Royal Markhors in terms

of conservation as it is commercial and highly focused only on the benefits to the local

community.21 Furthermore, it is indicative that Rishmak has not employed significant

investments in non-detriment findings, considering the lack of rigor in the scientific study

of the Royal Markhors.

Rishmak's Failure to Implement Conservation Measures and State

Responsibility

Failure to take a Precautionary approach

19
Prop
20
https://cites.org/sites/default/files/documents/COP/19/resolution/E-Res-17-09.pdf
21
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 Resolution 9.24 of the CITES determine that in case of uncertainty regarding the status of

a species or the impact of trade on the conservation of a species, the Parties shall act in

the best interest of the conservation of the species concerned, by virtue of a Precautionary

approach.22 Rishmak, however, has not acted in the best interest of the conservation of the

species by permitting trophy hunting of the highly vulnerable Royal Markhors as there is

uncertainty on the status of the species even with the cap of only 10 allowed to be hunted

and its genuine impact of trade on its conservation due to insufficient non-detriment

finding for the gravely endangered species.

Unsustainability and unethicality of trophy hunting

The auctioning off of the trophy hunting, claimed to be beneficial to local communities

and aid in conservation efforts, is unsustainable and fundamentally unethical. Trophy

hunters often desire to hunt iconic or rare species to get the best trophies like that of

Royal Markhors, known for its distinctive features, which increases the extinction rate by

exposing the species to the Anthropogenic Allee effect. 23 The conservation implications

go beyond mere numbers disrupting social structures, behavioral patterns, genetic

integrity of the species etc. Furthermore, the ecological impacts get overshadowed in the

face of economic benefits, especially when it supports human development, leading to

justification of ecological harm for financial gain. 24 The cruel practices that stem from

trophy hunting, like that of canned hunting, 25 where the Royal Markhors are lured for a

successful hunt, and the usage of rifles to hunt signifies the harsh nature of trophy

22
*Resolutions (cites.org)
23
Palazy et al. 2012. On the use of the IUCN status for the management of trophy hunting. Wildlife Research,
39(8):711-720. https://doi.org/10.1071/WR12121
24
https://iucn.org/news/world-commission-environmental-law/201909/compatibility-trophy-hunting-a-form-
sustainable-use-iucns-objectives
25
https://www.hsi.org/issues/trophy-hunting/#:~:text=Trophy%20hunting%20is%20not%20only,and%2For
%20export%20hunting%20trophies.
 hunting without considering animal welfare. Hence, in the light of these instances, the

trophy hunting by foreign nationals allowed by Rishmak fails to establish genuine

conservation measures and sustainable development and is disproportionate to the

economic benefits availed by the Dione Ginsu Community. This violates its obligations

under CMS and CITES.

Attribution of the auction process to Rishmak under international law

State responsibility for actions within its jurisdiction

Articles 4(1) of the Articles on State Responsibility for Internationally Wrongful Acts,

2001 (ARSIWA) recognizes that the conduct of any state organ is attributable to the

action of the State itself. Rishmak’s endorsement of auctioning off the right to hunt

the Royal Markhors by foreign nationals falls under this principle. Further, Article 2

provides for the responsibility of a State in the case of violation of international laws

or breach of an international obligation. Rishmak’s violation of the international

conventions of CMS and CITES holds the State responsible under international law.

II. MISINTERPRETATION OF "SUBSISTENCE USE" AND INAPPLICABILITY OF INDIGENOUS

RIGHTS CLAIMS

A. Narrow interpretation of "subsistence use" in the context of CMS

1. Historical and purposive interpretation of the term

Subsistence hunting is recognised as an exception in CMS Article III (5) 26 to essentially

support the Indigenous community and their Rural living since subsistence hunting is to
26
CMS
 meet the survival requirements of the local communities, which includes food, clothing,

shelter, and even cultural significance. 27 The commitment of CMS to eradicate poverty

through the sustainable use of migratory species with its instruments and activities

supporting for a long-term benefit to the Rural Indigenous communities, striving to

achieve the goals set at the World Summit on Sustainable Development in Johannesburg

in 200228 is indicative that the convention exclusively attributes to the indigenous

community. This is further substantiated as the Article requires the exceptions to be

“precise to content”.29 Rishmak was justified in its activities of allowing to take the Royal

Markhors for meeting the subsistence needs of the Dione Ginsu community until

auctioning off the Right to trophy hunt the species to foreign nationals 30 which converted

the subsistence hunting to commercial hunting and trade which is unsustainable, hence

unacceptable by the conservation conventions as it defeats their essential purposes.

https://www.conservationfrontlines.org/2021/04/hunting-trophy-and-other-a-primer-for-

the-non-hunter-it-may-or-may-not-be-what-you-think/

https://www.fao.org/4/t0750E/t0750e06.htm

B. The auction process as a commercial rather than subsistence activity

Analysis of the economic nature of the auction

27
https://www.conservationfrontlines.org/2022/07/subsistence-hunting/#:~:text=Subsistence%20hunting
%20means%20harvesting%20wildlife,the%20value%20of%20subsistence%20hunting.
28
file:///C:/Users/Hp/Downloads/inf2_6_cms_25th_anniversary_brochure_1.pdf

29
CMS
30
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 Subsistence hunting can become commercial hunting when the good portion of the hunt

is sold to third parties.31 Commercial hunting is also when the animal is hunted for selling

ivory, antlers, horns, skins, feathers or some other part of a wild animal. 32 Rishmak’s

auction process to sanction trophy hunting rights to foreign trophy hunters 33 is clearly a

commercial activity and deviates from hunting for subsistence use as it auctions off a

Royal Markhor to be hunted, eventually selling the species. The auction, which

encompasses a starting bidding amount of 100,000 USD with a frequent winning bid of

150,000 USD per Royal Markhor34, explicitly signifies the commerciality of the same.

In addition to this, the trophy hunters are required to hire a Dione ginsu guide to ensure a

successful hunt35 that further implies profit desires. The Dione Ginsu community uses the

major portion of the revenue from high winning bids per Royal Markhor for its own

needs and only sets aside 15 percent for the conservation purposes of the species even

after recognizing its high mortality rate due to Mycoplasma Capricolum infections and

other diseases.36 The community further failed to increase contributions to conservation

efforts even after receiving revenues from getting hired by trophy hunters, thereby

commercially exploiting the Royal Markhors. Hence, Rishmak’s claim of the revenues

from the auction process used for subsistence needs fails in the face of disproportionate

“conservation” efforts, thereby making it a commercial activity rather than a subsistence

activity.

31
https://www.fao.org/4/t0750E/t0750e06.htm
32
https://www.conservationfrontlines.org/2021/04/hunting-trophy-and-other-a-primer-for-the-non-hunter-it-may-
or-may-not-be-what-you-think/
33
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34
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35
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36
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C. Limited relevance of ILO Convention 169 and UN Declaration on Rights of Indigenous

Peoples

1. These instruments do not supersede specific conservation treaty obligations

2. Astor is not a party to ILO Convention 169

D. Balancing Indigenous rights with international conservation commitments

1. The primacy of species conservation in international environmental law

2. Alternative means of supporting Indigenous communities without violating conservation

treaties

Trophy hunting is not sustainable (theecologist.org)

https://www.conservationaction.co.za/like-the-fossil-fuel-industry-trophy-hunting-is-

unsustainable/

https://ethnobiomed.biomedcentral.com/articles/10.1186/1746-4269-8-38

https://iwc.int/management-and-conservation/whaling/aboriginal