735R

IN THE INTERNATIONAL COURT

OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, NETHERLANDS
THE CASE CONCERNING TO TRANSPBOUNDARY HARMS
AND WAR CRIMES

FEDERAL STATE OF ABRAVANEL

(APPLICANT)
v
REPUBLIC OF RATHANKA
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

2016 University of Cebu

College of Law Moot Court Competition

TABLE OF CONTENTS

INDEX OF AUTHORITIES

STATEMENT OF JURISDICTION

Pursuant to the Security Council adopted Resolution 1280 which established the Special
International Tribunal (SIT) concluded on 6 February 2013 at Special International Tribunal
(SIT), between the Federal State of Abravanel and the Republic of Rathanka (collectively the
Parties), and in accordance with Article 40(1) of the Statute of the International Court of Justice,
the Parties hereby submit to this Court its claims concerning transboundary harm and war
crimes.

This Tribunal is requested to decide the Case on the basis of treaty, customary
international law and generally accepted principles of law.. In accordance with the Statute of the
Special International Tribunal (SIT), the Parties shall accept any Judgment of the Court as final
and binding upon them and shall execute it in its entirety and in good faith.

QUESTIONS PRESENTED

The Republic of Rathanka respectfully asks this Court:

1.
a. Whether or not the Federal States of Abravanel violated the TARA, the Rio Declaration
or the Stockholm Declaration for failing to prevent transboundary harm.
b. Whether or not Abravanel also violated the Rathankan citizens right to the highest
attainable standard of health, the right to a safe and healthy environment and the right to
sustainable development; and

2.
a. Whether or not Gen. Baldon Estenzic was criminally responsible asa a military
superior for the attack carried out by the Abrean trainees.
b. Whether or not Gen. Baldon Estenzic did commit a grave violation of the Geneva
Convention amounting to a war crime.

STATEMENT OF FACTS

SUMMARY OF PLEADINGS

PLEADINGS

Submission 2 (Respondent)

GENERAL BALDON ESTENZIC IS NOT CRIMINALLY RESPONSIBLE AS A MILITARY

SUPERIOR FOR THE ATTACK CARRIED OUT BY THE ABREAN TRAINEES IN ALL
RESPECT WITH ITS ELEMENTS UNDER INTERNATIONAL LAW, AND GENERAL
BALDON ESTENZIC HAS NO CRIMINAL LIABILITY FOR ANY LOSS OR DAMAGE
INCURRED BY THE FEDERAL STATES OF ABRAVANEL BY THE TRAGIC INCIDENTS
IN SEPTEMBER 2015.

The act of the Abrean Trainees cannot be attributed to the Government of Rathanka in all
respect with its elements under international law.

A Abrean Trainees conduct cannot be attributed to the Government of

Rathanka in all respect with its elements under international law, specifically
under the provisions of the 2001 Responsibility of States for internationally
Wrongful Acts.
Abravanel and Rathanka are Members of the United Nations and are Parties to the Statute
of the International Court of Justice. In all respect with reference to the 2001 Responsibility of
States for Internationally Wrongful Acts provides the reasonable measures to determine whether
a conduct of a person or group of persons shall be considered an act of a State under international
law. Article 8 provides that in order for the conduct to be attributed to the State, the degree of
1

control which must be exercised by the State. In the Military and Paramilitary Activities in and
against Nicaragua case The Court confirmed that a general situation of dependence and support
would be insufficient to justify attribution of the conduct to the State.
Furthermore the Appeals Chamber of the International Tribunal for the Former
Yugoslavia in the Tadic, case, the Appeals Chamber held that the requisite degree of control by
the Yugoslavian authorities over these armed forces required by international law for
considering the armed conflict to be international was overall control going beyond the mere
financing and equipping of such forces and involving also participation in the planning and
supervision of military operations. In the text of article 8, the three terms instructions,
direction and control are disjunctive; it is sufficient to establish any one of them. At the same
time it is made clear that the instructions, direction or control must relate to the conduct which is
said to have amounted to an internationally wrongful act.
The facts of the case provides that Government of Rathanka embarked on several projects
to help the Abreans despite the fact that Abreans from Appala do not acknowledge the political
authority of either state or the borders set by TARA. Among these projects is a security aid
program which authorizes the Rathanka Security Forces (RSF) to provide Abreans with military
aid. Arguendo that Abrean trainees, while not formally part of the RSF, are nominally under the
command of the Rathankan military representative in this case Gen. Baldon Estenzic,
instructions, direction and control was not established in this case. General Baldon
Estenzic did not instruct nor direct nor overall control in the planning and supervision of military
operations.
Ergo, the Abrean Trainees conduct is insufficient to justify attribution of the conduct to
the State. This would indicate that any loss and damages incurred in September 2015 accident is

not caused by the ambit of the States sovereign action duly authorized by the Government of
Rathanka. The Abrean trainees committed the common crimes of murder and destruction of
property for which they shall be tried under the domestic law of Rathanka.

B Ritanias conduct with respect to the Excelsior Island project complied with
the terms of the Malachi Gap Treaty.

Excelsior Island is located outside the Malachi Gap, entirely within Ritanias uncontested
EEZ.1 While EIGP requires dredging within the Malachi Gap area, the Malachi Gap Treaty has
expressly allowed Ritania exploration, exploitation and protection of the natural resources of the
seabed and subsoil2 and development of subsea resources such as the Erebus gas field. 3 Having
the EIA approved, EIGP was granted a permit to construct Excelsior Island. 4 Such permit to
dredge the Malachi Gap was also granted in full compliance with the respective Ritanian after
consultation with all competent government authorities.5
II

Ritania has no obligation to compensate Amalea for any loss or damage allegedly caused by
the 2009 landslide.

A Compensation in international law is governed by The Articles on the

Responsibility of States for International Wrongful Acts (ARSIWA).

1 Paragraph 20, Compromis.

2 Art 12(b), Malachi Gap Treaty.
3 Paragraph 16, Compromis
4 Paragraph 27, Compromis.
5 Item 6, Compromis Clarifications.
3

Compensation in international law is governed by The Articles on the Responsibility of

States for International Wrongful Acts (ARSIWA) which was adopted by the International Law
Commission in 2001. Under ARSIWA, state responsibility to compensate arises only from
internationally wrongful acts.6 An act or omission is internationally wrongful when it is
attributable to the State under international law; and constitutes a breach of an international
obligation of the State.7
Such act or omission is internationally wrongful regardless of its characterization in the
internal law of the state concerned.8 Moreover, an internationally wrongful act is attributable to
the state when it is committed by a state organ, 9 whether it exercises legislative, executive,
judicial or any other functions, whatever position it holds in the organization of the State, and
whatever its character as an organ of the central Government or of a territorial unit of the State. 10
It may also be attributable to the state when it is committed by a person or entity, not a State
organ, but which is empowered by the law of that State to exercise elements of the governmental
authority, provided that such person or entity is acting in that capacity in the particular instance. 11
Other attributions include: (1) special cases where an organ of one State is placed at the disposal
of another State and empowered to exercise the governmental authority of that State; 12 (2)
conducts of organs or entities empowered to exercise governmental authority even if it was
carried out outside the authority of the organ or person concerned or contrary to instructions; (3)

6 Art. 1, ARSIWA. Responsibility of a State for its internationally wrongful act. Every internationally wrongful act
of a State entails the international responsibility of that State.

7 Art. 2, ARSIWA.
8 Art. 3, ARSIWA.
9 Organ is defined in Article 4(2) of the ARSIWA as any person or entity which has that status in accordance with
the internal law of the State.

10 Art. 4 (1), ARSIWA.

11 Art. 5, ARSIWA.
12 Art. 6, ARSIWA.
4

conducts carried out on the instructions of a State organ or under its direction or control; 13 (4)
conducts involving elements of governmental authority, carried out in the absence of the official
authorities;14 (5) special case of responsibility in defined circumstances for the conduct of
insurrectional movements;15 and (6) conducts not attributable to the State under one of the earlier
articles which is nonetheless adopted by the State, expressly or by conduct, as its own. 16 There is
a breach of an international obligation when conduct attributed to a State as a subject of
international law amounts to a failure by that State to comply with an international obligation.17
The dredging done with respect to the Excelsior Island Project was not a violation of
international law or the Malachi Gap Treaty. Thus, there was no internationally wrongful act of
Ritania that is attributable to it.18

B The International Court of Justice (ICJ) found that circumstances were not
such as to require the exercise of its power under Article 41 of the ICJ
Statute, thus consequently denying Amaleas request to order Ritania to halt
the EIGP project.
The International Court of Justice (ICJ) being the principal judicial organ of the United
Nations (UN) generally has the power to settle legal disputes submitted to it by States in
accordance with international law.19 It is also empowered to indicate provisional measures to

13 Art. 8, ARSIWA.
14 Art. 9, ARSIWA.
15 Art. 10, ARSIWA.
16 Art. 11, ARSIWA.
17 Art. 12, ARSIWA. Existence of a breach of an international obligation. There is a breach of an international
obligation by a State when an act of that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character.

18 Art. 2, ARSIWA
19Art 36, Statute of the Court
5

preserve the rights of parties relating to their respective claims before deciding the merits of the
case.20 However, there are certain criteria before provisional measures are to be granted. These
criteria are discussed in the case concerning Pulp Mills on the River of Uruguay (Argentina v.
Uruguay). In this case, Argentina filed an Application instituting proceedings against Uruguay
concerning alleged violations by Uruguay of obligations incumbent upon it under the 1975
Statute of the River Uruguay, a treaty signed by the two States. Argentina charged Uruguay for
breach of the 1975 Statute when it unilaterally authorized the construction of two pulp mills on
the River Uruguay without complying with the obligatory prior notification and consultation
procedure. Argentina maintained that these mills jeopardized conservation of the environment of
the river and areas affected by it. This was accompanied by a request for the indication of
provisional measures requiring Uruguay, to suspend the authorizations for the construction of the
mills and to halt building work on them pending a final decision by the Court, and to refrain
from any other action which might aggravate or extend the dispute or render its settlement more
difficult. In its order dated July 13, 2006, the Court found, by 14 votes to one, that the
circumstances, as they presented themselves to the Court, were not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional measures.21 On
November 29, 2006, Uruguay submitted its own request to the Court for the indication of
provisional measures on the grounds that, since November 20, 2006, organized groups of
Argentine citizens had blockaded a vital international bridge over the Uruguay River causing it
enormous economic damage, and that Argentina had taken no steps to put an end to the blockade.
20 Article 41 on the Statute of the ICJ states that (1) The Court shall have the power to indicate,
if it considers that circumstances so require, any provisional measures which ought to be taken to
preserve the respective rights of either party; and (2) Pending the final decision, notice of the
measures suggested shall forthwith be given to the parties and to the Security Council.
21 Pulp Mills on the River Uruguay (Argentina v. Uruguay),Provisional Measures, Order of 13 July 2006, I.C.J.
Reports 2006, p. 113

It further asked the Court order Argentina to take all reasonable and appropriate steps to
prevent or end the interruption of transit between Uruguay and Argentina, including the
blockading of bridges and roads between the two States; to abstain from any measure that might
aggravate, extend or make more difficult the settlement of this dispute; and finally to abstain
from any other measure that might prejudice the rights of Uruguay in dispute before the Court. 22
In its decision, the Court stressed that its power to indicate provisional measures can be exercised
only if there is an urgent necessity to prevent irreparable prejudice to the disputed rights. 23 The
Court is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay
claims from the 1975 Statute.24 Moreover, it has not been shown that were there such a risk of
prejudice to the rights claimed by Uruguay in this case, it is imminent. 25 Denying Uruguays
request to indicate provisional measures, the Court reiterates its call to the Parties made in its
Order of13 July 2006 to fulfill their obligations under international law, to implement in good
faith the consultation and co-operation procedures provided for by the 1975 Statute, and to
refrain from any actions which might render more difficult the resolution of the present dispute. 26
Pulp Mills on the River of Uruguay (Argentina v. Uruguay) established the criteria of urgency,
irreparable prejudice, and the right of the parties in dispute. Failure of both states, Argentina and
Uruguay, to comply with the criteria denied them of their respective requests for provisional
measures.
22 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23
January 2007, I.C.J. Reports 2007, p. 3
23 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23
January 2007, I.C.J. Reports 2007, p. 11, para. 32
24 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23
January 2007, I.C.J. Reports 2007, p. 13, para. 41
25 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23
January 2007, I.C.J. Reports 2007, p. 13, para. 42
26 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23
January 2007, I.C.J. Reports 2007, p. 16, para. 53
7

These criteria were likewise not satisfied by Amalea, thus, in its decision cited on
September 10, 2009, ICJ has concluded by eight votes to seven denying Amaleas request to
order Ritania to halt the EIGP project as the circumstances were not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional measures. 27 This
decision of the Court is binding between the parties28 and such judgment is final and without
appeal.29

Submission 2 Respondent

MILO BELLEZZAS SALVAGE OF THE CARGAST IS UNLAWFUL, AND THE CARGO

AND ARTIFACTS RECOVERED FROM THE WRECK PROPERLY BELONG TO RITANIA,
WHICH HAS THE RIGHT TO PROTECT THEM.

The cargo and artifacts of recovered from the wreck properly belong to Ritania, which
has the right to protect them.
A Ritania owns the said cargo and artifacts under the principle of cultural property
nationalism.

27 Paragraph 27, Compromis.

28 Art. 59, Statute of the International Court of Justice. The decision of the Court has no binding force except
between the parties and in respect of that particular case.

29 Art. 60. Statute of the International Court of Justice. The judgment is final and without
appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall
construe it upon the request of any party.
8

Cultural property includes a limited range of objects that distinguish themselves from
other artifacts by their special cultural significance and/or rarity.30 The principle of cultural
property nationalism obligates cultural property to belong to the nation in which it originates. 31 It
is the dominant view, espoused by most market nations. 32 The UNESCO Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property of November 14, 1970 exemplifies the principle of cultural property
nationalism,33 as well as its offshoot the Intergovernmental Committee for Promoting the Return
of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation. 34
This principle legitimizes the demand for repatriation of cultural property to the nation of
origin.35

30 John Henry Merryman, Cultural Property Internationalism, 12 INT'L J. CULTURAL PROP.

11, 32 (2005), page. 11. Article 1 of the UNESCO Convention on the Means of Prohibiting and
Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of
November 14, 1970 defines cultural property as Property which, on religious or secular
grounds, is specifically designated by each State as being of importance for archaeology,
prehistory, history, literature, art or science and which belong to the following categories: (b.)
property relating to history, including the history of science and technology and military and
social history, to the life of national leaders, thinkers, scientists and artists and to events of
national importance; (e) antiquities more than a hundred years old, such as inscriptions, coins
and engraved seals.
31 21Raechel Anglin, Note, The World Heritage List: Bridging the Cultural Property
Nationalism-Internationalism Divide, 20 YALE J.L. & HUMAN page 242 (2008).
32 Stephanie O. Forbes, Comment, Securing the Future of Our Past: Current Efforts to Protect
Cultural Property, 9 TRANSNAT'L L. 235, 242 (1996).
33 John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L.
831, page 842-845 (1986).
34 John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L.
831, page 845 (1986).
35 John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 832
(1986). See Maria Aurora Fe Candelaria, Note, The Angkor Sites of Cambodia: The Conflicting Values of
Sustainable Tourism and State Sovereignty, 31 Brook. J. Intl L. 253, 267-68 (2005) (Because cultural property is a
part of a national cultural heritage, sovereignty over these properties should remain with the state.)Ownership over
cultural property is never lost and remains with the state of origin for the following reasons: (1) because cultural
property is an expression of a civilization that existed or is currently existing within a state, its citizens thus have a
stronger claim based on identification and national pride; and (2) retention of sovereignty provides the context of
cultural property.

Historians are unanimous in their assumption that the cargo that went down with the
Cargast, and that lay somewhere in the depths of the Strait of Malachi, contained a vast array of
precious stones, gold and other coinage, and bejeweled artifacts during Amalean Captain Baldric
Verdigris siege of the Ritanian capital of Helios on the week of 4 March 1510. 36 Among the
objects stolen was the Sacred Helian Coronet, which was placed on the heads of Ritanian
monarchs during their coronation ceremonies.37 According to legend, the Coronet reportedly
made of gold and precious stones was a gift from the gods to the first king of Ritania in the
fourth century A.D., and over the centuries it has acquired mythical importance in Ritanian
iconography, a stylized image of which occupies the center of the flag of Ritania to the present
day.38 All these artifacts clearly constitute cultural property with deep historical and cultural
significance to the Ritanian people, and as an integral part of their cultural identity, 39 these
artifacts seized by Amalea from the Cargast remain under the exclusive ownership of Ritania,
and must be repatriated to Ritania.

II

Amaleas salvage of the Cargast is unlawful.

A The salvage contract between the State of Amalea and Milo Belleza was invalid under
the 1989 International Convention on Salvage (Salvage Convention).

36 Paragraph 33, Compromis.

37 Paragraph 33, Compromis.
38 Paragraph 33, Compromis.
39 Professor Stuart Hall defines the cultural identity in terms of one, shared culture, a sort of
collective one true self, hiding inside the many other, more superficial or artificially imposed
selves, which people with a shared history and ancestry hold in common. Cultural identity
defines us as one people, and gives a sense of identity and belonging to a group or culture and
valuing cultural diversity. As a result, cultural identity, as evidence of a states spirit code, can
be the substantial criterion to authorize the interested state of origin to claim the res. See
10

Amalea is a State Party to the Salvage Convention. 40 This Convention sought to codify
the traditional principles in the law of salvage, including those embodied in the 1910 Brussels
Convention for the Unification of Certain Rules of Law relating to Salvage at Sea, and update
these principles in the light of modern practice and jurisdiction principles as well as, in
particular, to respond to growing international concerns relating to the protection of the marine
environment.41

The Salvage Convention applies to all salvage operations of a State Party. 42 It also states
that salvors shall conclude contracts for salvage operations with the owner of the property sought
to be salvaged.43 Amalea is manifestly not the owner of the cultural property, as they remain
owned by Ritania as previously discussed. The salvage of such property is thus violative of the
rules of salvage as codified in the Salvage Convention.

B Amalea has lost ownership of the Cargast by abandonment.

Moreover, Amalea cannot contend that any contents in its own vessel are consequently its
own. The Cargast is deemed abandoned by virtue of its commercial or merchant character and its
loss having reached 500 years. The attribute commercial means that the use of such vessels has
to be aimed at obtaining profits, so that even government ships, when operated for commercial
purposes, are merchant vessels.44 Contemporary records reveal that before Verdigris and his men
40 Paragraph 52, Compromis.
41 William A. ONeill, Foreword, Travaux Preparatoires of the Convention on Salvage 1989.
42 Article 6(1), Salvage Convention.
43 Article 6 and 8, Salvage Convention.
44 The Handbook of International Humanitarian Law, Dieter Fleck
11

laid siege to Helios, they were on their way back to Amalea from a very successful trading
mission to recently discovered overseas territories. 45 Moreover, the crew of the Cargast was
composed of private individuals employed by Verdigris using funds provided by private financial
backers, who hoped to recover their investment through shares of the foreign treasure they hoped
he would bring back to Amalea. 46 This fact shows that privateering through a letter of marque
was business, in that capital was subscribed by the nobility and the middle class as bakers,
bankers, butchers, cheesemongers, coal merchants, dyers, grocers and haberdashers invested in
commerce-raiding activity.47 Taken together, these facts indicate the commercial nature of the
purposes for which Verdigris and the crew of the Cargast set sail.

Abandonment is presumed to exist 25 years after sinking and becomes absolute after 50
years, and the only exceptions to these rules are military vessels and aircraft, which are to remain
the property of the sovereign nation forever.48 The Cargast has remained undiscovered without
any published claims until only after the discovery in 2010. 49 Therefore, since the Cargast was a
commercial vessel and it was lost at sea for more than 500 years, it is deemed abandoned.
Amalea cannot rely on ownership of the vessel to justify its claim over the artifacts.

45 33, Compromis.
46 Paragraph 32, Compromis.
47 Gary Sturgess, Privateering and Letters of Marque, Journal of International Peace Operations,
Vol. 5, No. 1, July-August 2009, page 38.
48 See Peter Hess, UNESCO-Legalized Plunder? http://www.imacdigest.com/unesco.html
(visited November 22, 1998)
49 31, Compromis
12

THE STATE OF AMALEA WAS NOT ENTITLED TO PURSUE OSCAR DE LUZ.

The High Seas Convention governs the exercise of the Right to Hot Pursuit and
not the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

Amalea is not a party to the UNCLOS.

Article 306 of the UNCLOS itself specifically provides that this Convention is subject to
ratification by States.50 This is an example of a convention requiring simple signature,51 where a
signing State does not undertake positive legal obligations under the treaty pending ratification. 52
This is made more explicit under Article 14 of the Vienna Convention on the Law of Treaties
(VCLT), While both Amalea and Ritania had signed the UNCLOS, 53 only Ritania ratified it as of
the time of the case at hand.54 Consequently, Amalea cannot yet be considered a state party to the
UNCLOS.55
50 Article 306, UNCLOS. Ratification and formal confirmation. This Convention is subject to
ratification by States and the other entities referred to in article 305, paragraph l(b), (c), (d) and
(e), and to formal confirmation, in accordance with Annex IX, by the entities referred to in article
305, paragraph l(f). The instruments of ratification and of formal confirmation shall be deposited
with the Secretary-General of the United Nations.
51 Signature is referred to as simple when subject to ratification, acceptance or approval. On
the other hand, signature is referred to as definitive when a State consents to be legally bound
by signature alone. (The Vienna Conventions on the Law of Treaties: A Commentary by Olivier
Corten and Pierre Klein, 2011, p. 218.)
52 UN Treaty Handbook 2012, p. 5. However, signature indicates the States intention to take steps to express its
consent to be bound by the treaty at a later date. Signature also creates an obligation, in the period between signature
and ratification, acceptance or approval, to refrain in good faith from acts that would defeat the object and purpose
of the treaty (see article 18 of the Vienna Convention 1969).

53 Paragraph 10 and 11, Compromis. In April 1983, Ritania signed and ratified the UNCLOS.
Amalea signed UNCLOS in June 1983.
54 Paragraph 11, Compromis.
55 Party is defined in Article 2(g) of the VCLT as a State which has consented to be bound by
the treaty and for which the treaty is in force. Article 2(b) of the same convention defines four
13

Amalea and Ritania are both parties to the 1958 Geneva Conventions on
the Law of the Sea (1958 Geneva Conventions).56

Article 311 of the UNCLOS provides that this Convention shall prevail, as between States
Parties, over the 1958 Geneva Conventions.57 This was added to clearly signify the intention of
the Third Conference on the Law of Sea to supersede the 1958 Geneva Conventions with the
UNCLOS.58
In such a situation Article 30 of the VCLT, regarding the application of successive treaties
relating to the same subject matter, is applicable. In paragraph 4(b) thereof, it provides that as
between a State party to both treaties and a State party to only one of the treaties, the treaty to
which both States are parties governs their mutual rights and obligations.59 As discussed
previously, while both Amalea and Ritania are parties to the 1958 Geneva Conventions, only
Ritania is a party to the 1982 UNCLOS. 60 Hence, the 1958 Geneva Conventions, as the treaty to
which both states are parties, govern the rights and obligations between Amalea and Ritania
insofar as the Law of the Sea is concerned.

international acts whereby a State establishes on the international plane its consent to be bound
by a treaty, namely: ratification, acceptance, approval and accession.
56 The 1958 Geneva Conventions on the Law of the Sea are comprised of four Conventions: The
Convention on the Territorial Sea and the Contiguous Zone; The Convention on the High Seas;
The Convention on Fishing and Conservation of the Living Resources of the High Seas; and The
Convention on the Continental Shelf.
57 UNCLOS, Article 311.
58 Myron Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary,
p. 235. (1989)
59 Article 30(4)(b), VCLT. Amalea and Ritania have both signed and ratified the VCLT, as per
Paragraph 52, Compromis.
60 Paragraph 10 and 11, Compromis.
14

II

THERE

WAS NO VALID EXERCISE OF HOT PURSUIT UNDER THE

1958

GENEVA

CONVENTIONS.

The provisions of the 1958 Geneva Conventions govern the exercise of hot
pursuit.

When a foreign vessel within the territory of a coastal State commits any violation of the
laws and regulations of that coastal State, such vessel may be immediately pursued into the open
seas beyond territorial limits and subsequently taken.61 This concept of hot pursuit, as defined by
Article 23 of the 1958 Geneva Convention on the High Seas, remained unchanged with the entry
of the UNCLOS in Article 111 thereof, and even has the force of custom, enforceable against
states which have neither signed nor ratified any of the Conventions on the Law of the Sea.62

For hot pursuit to be validly exercised such pursuit must be commenced when the foreign
ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of
the pursuing State.63 Under the regime of the 1958 Geneva Conventions, the ILC considered that
the breadth of the territorial sea did not extend beyond 12 miles from the baseline,64 while the
contiguous zone may not extend beyond twelve miles from the baseline from which the breadth
of the territorial sea is measured.65

61 Allen, Doctrine of Hot Pursuit book (page 1), citing The King v. the Ship North, 37 S. C. R.
385 (1905-06).
62 The Right of Hot Pursuit in International Law, Nicholas M. Poulantzas, p. xxviii.
63 Article 23(1), High Seas Convention.
64 ILC, Articles concerning the Law of the Sea with commentaries, p. 265, 1956.
65 Article 24, Convention on the Contiguous Zone.
15

In the case at hand, Captain Walter Haddock of the Icarus, an Amalean Navy Fast
Response Cutter, began the pursuit when the Daedalus was within 23 nautical miles of Amaleas
coastline, well beyond the territorial sea and the contiguous zone of Amalea under the 1958
Geneva Conventions. Hence, the commencement of the pursuit was unlawful, and there can be
no valid arrest following hot pursuit if the exercise of such pursuit is not in accordance with the
elements as codified in the 1958 High Seas Convention66 and affirmed in the 1982 UNCLOS.67
Submission 4 Respondent

AMALEA WAS WITHOUT JURISDICTION TO TRY LUZ IN CONNECTION WITH THE

ROSEHILL COLLISION, AND MUST RETURN HIM TO RITANIA IMMEDIATELY.

The High Seas Convention grants flag-state jurisdiction over the incident in favor of
Ritania.

Amalea and Ritania are State Parties to the 1958 High Seas Convention. 68 Article 11 of
the High Seas Convention provides that in the event of a collision on the high seas, no penal or
disciplinary proceedings may be instituted against such persons except before the judicial or
administrative authorities either of the flag State or of the State of which such person is a
national.69 It goes on to say that no arrest or detention of the ship, even as a measure of

66 Article 111, UNCLOS; Article 23, 1958 Convention on the High Seas
67 Saiga case, para. 150.
68 Paragraph 8, Compromis.
69 Convention on the High Seas, Article 11(1).
16

investigation, shall be ordered by any authorities other than those of the flag State. 70 These
provisions would later on be reaffirmed in article 97 of the UNCLOS.71

This rule had been previously codified in the International Convention for the Unification
of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of
Navigation, signed at Brussels on 10 May 1952,72 which rule originated as a response against a
judgment rendered by the Permanent Court of International Justice on 7 September 1927 in the
Lotus case73 which allowed Turkish courts to try the master of a French vessel regarding a
collision on the high seas.74 It is the flag state that will enforce the rules and regulations not only
of its own municipal law but of international law as well.75

Applying the above rule grants exclusive jurisdiction over Luz regarding the incident to Ritania,
which flag the Daedalus was flying and of which State Luz is a citizen.76

II

Amaleas arrest of Oscar de Luz was unlawful, further precluding any jurisdiction to try
him in Amalean courts regarding the Rosehill collision.

If a person who is the subject of a controversy has been brought to the domestic court of
another state through means that constitute a breach of international law, the domestic court has
70 Convention on the High Seas, Article 11(3).
71 UNCLOS, Article 97.
72 Article 1 and 2, International Convention for the Unification of Certain Rules Relating to
Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation
73 Lotus.
74 Articles Concerning the Law of the Sea with commentaries, p. 281, 1956.
75 Malcolm Shaw, International Law, p. 611, 2008.
76 Paragraph 42, Compromis.
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no jurisdiction to try the subject person.77 To hold otherwise would defeat the purpose and nullify
the efficacy of international law.78

When Israel violated the territorial integrity and sovereignty of Argentina by forcibly
abducting Adolf Eichmann, a German former Nazi, from Argentinian territory for crimes against
the Jewish people, Israels act constituted an international tort, a breach of international law, 79
entitling Argentina to demand reparation, i.e. the repatriation of Adolf Eichmann 80 prior to
withdrawing the demand and accepting a public apology from Israel instead, as per suggestion
by the UN Security Council.81

There can be no valid arrest following hot pursuit if the exercise of such pursuit is not in
accordance with the elements as codified in the UNCLOS, which elements were first contained
in the High Seas Convention.82 As earlier discussed, Amaleas exercise of the right to hot pursuit
was unlawful, having been based on mere suspicion. This is tantamount to an international tort
subject to reparation.83

77 Edwin Dickinson, Jurisdiction following seizure or arrest in violation of international law, p.

244.
78 Edwin Dickinson, Jurisdiction following seizure or arrest in violation of international law, p.
231.
79 Hans W. Baade, The Eichmann Trial: Some Legal Aspects, Duke Law Journal, Volume 1961,
p. 401.
80 See SCHWARINBERGER, INTERNATIONAL LAW 562-64 (3d ed. 1957), Chorzow
Factory (Jurisdiction), P.C.I.J., ser. A, No. 9 at 21 (Germany v. Poland, 1927); Corfu Channel
Case, Great Britain v. Albania, [1949] I.C.J. Rm'. 4, 23.
81 See U.N. Doc. No. S/PV. 868, para. 30131, at 7-8 (USSR); id., para. 33-36, at 8 (U.K.); cf. 7
UNITED NATIONS REVIEW No. 2, 14 (2960).
82 Saiga Case, para. 150.
83 Hans W. Baade, The Eichmann Trial: Some Legal Aspects, Duke Law Journal, Volume 1961,
p. 401.
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III

Ritania has a right to demand the return of Oscar de Luz through restitution.
Article 35 of the International Law Commissions Articles on the Responsibility of States

for Internationally Wrongful Acts (ARSIWA) provides that a State responsible for an
internationally wrongful act is under an obligation to make restitution, that is, to re-establish the
situation which existed before the wrongful act was committed, provided and to the extent that
restitution: (a) is not materially impossible; and (b) does not involve a burden out of all
proportion to the benefit deriving from restitution instead of compensation.84

Restitution may take the form of material restitution such as release and return of persons
wrongly detained,85 as well as the form of judicial restitution such as the rescinding or
reconsideration of a judicial measure wrongfully adopted in respect of the person of a foreigner.86

IV

Ritania has exclusive jurisdiction over Luz under the active personality principle.
According to the active personality principle, a state has a fundamental right to apply its

laws to prosecute illegal conduct committed by its citizens overseas 87. Known also as the
nationality principle, this positive concept of the personality taking the nationality of the criminal
as a basis for its application has been clearly recognized by international law.88 Art. 91 of
UNCLOS provides: "Ships have the nationality of the State whose flag they are entitled to fly."
84 Article 35, ARSIWA.
85 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with
commentaries, p. 96, 2001.
86 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with
commentaries, p. 97, 2001.
87 ILIAS BANTEKAS & SUSAN NASH, INTERNATIONAL CRMINAL LAW 144
(Cavendish Publishing 2003) (2001).
88 Abdulmohsen Alothman , State Jurisdiction in the Area of International Criminal Law, p.27
19

Moreover, under Article 94 2(b), the flag State does not only assume jurisdiction over the ship,
but also over its crew89. Thus the nationality principle establishes that states have the right to
regulate the conduct of their nationals90 even outside its territory.
Oscar de Luz is a Ritanian citizen who stole and took control of a Ritanian-flagged yacht and
was then on a collision course with Rosehill.91 The crimes committed by its national on board the
Ritanian-flagged vessel Daedalus are subject matter covered under the jurisdiction of Ritania.

Amalea cannot claim universal jurisdiction to try and convict Luz.

Under this principle, each and every state has jurisdiction to try offenses regarded as
particularly offensive to the international community as a whole, such as piracy, genocide, war
crimes and crimes against humanity.92 States are competent to prosecute and punish alleged
offenders irrespective of the place of commission of the crime and regardless of any link of
active or passive nationality or other grounds of jurisdiction recognized by international law.93

Luzs alleged murder, property crimes, and criminal negligence, are not offenses regarded
as capable of trying under universal jurisdiction, and Amalea cannot claim jurisdiction under this
principle.

89 A Handbook on the New Law of the Sea, Dupuy & Vignes vol. 2 (1991), P. 146
90 One example of this principle at work is section 4 of the Indian Penal Code, which says, "The
provisions of this Code apply also to any offence committed by (1) any citizen of India in any
place without and beyond India; (2) any person on any ship or aircraft registered in India
wherever it may be." Another example is the U.S.'s application of its civil rights laws to
Americans employed abroad by American employers
91 Par. 42, Compromis 2014
92 Malcolm Shaw, International Law, 6th, 2008, p. 668.
93 Malcolm Shaw, International Law, 6th, 2008, p. 668.
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CONCLUSION AND PRAYER FOR RELIEF

The Republic of Ritania respectfully asks this Court to adjudge and declare that:
1.

Ritanias conduct with respect to the Excelsior Island project complied in all
respects with its obligations under international law and the terms of the Malachi
Gap Treaty, and Ritania has no obligation to compensate Amalea for any loss or
damage allegedly caused by the 2009 landslide.

2.

Milo Bellezzas salvage of the Cargast is unlawful, and the cargo and artifacts
recovered from the wreck properly belong to Ritania.

21

3.

The Amalean Navys pursuit of Oscar de Luz into Ritanias EEZ, and his
subsequent arrest, were illegal.

4.

Amalea was without jurisdiction to try Luz in connection with the Rosehill
collision, and must return him to Ritania immediately.

22