Team No.

676A INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, THE NETHERLANDS THE DISPUTE BETWEEN THE PARTIES CONCERNING CERTAIN ACTIVITIES WITHIN THE MALACHI GAP THE STATE OF AMALEA (APPLICANT) V. THE REPUBLIC OF RITANIA (RESPONDENT)

MEMORIAL FOR THE APPLICANT

SPRING TERM 2014 Philip C. Jessup International Law Moot Court Competition

Team No. 676A TABLE OF CONTENTS

1) 2) 3) 4) 5) 6)

INDEX OF AUTHORITIES.vi STATEMENT OF JURISDICTION......xxv QUESTIONS PRESENTED.xxvi STATEMENT OF FACTS..xxvii SUMMARY OF PLEADINGSxxxii PLEADINGS..1

I.

THE

DEVELOPMENT

OF

EXCELSIOR

ISLAND

VIOLATED

INTERNATIONAL LAW THUS ENTITLING THE APPLICANT TO CLAIM FOR ECONOMIC LOSS.........1 A. THE RESPONDENTS ACT OF DEVELOPING EXCELSIOR ISLAND VIOLATED ITS OBLIGATIONS UNDER INTERNATIONAL

LAW.1 1. The Respondent violated customary international law not to cause transboundary harm.1 2. The Respondent failed to give due regard to the rights of the Applicant under the Malachi Gap Treaty and Article 56 of United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982).2 3. The Respondent failed to prevent damage to the environment as required by International Law3

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Team No. 676A a. The Respondent breached its duty to protect and not to cause damage to the environment under the Convention on the Continental Shelf3 b. The Respondent did not exercise precautions before granting the license to Excelsior Island Gas & Petroleum Limited

(EIGP).4 4. The Respondent did not carry out its duty with regard to Environmental Impact Assessment (EIA) as required by UNCLOS and Customary International Law.5 B. THE BREACH OF THE INTERNATIONAL OBLIGATION IS

ATTRIBUTABLE TO THE RESPONDENT.6 C. THE RESPONDENT IS RESPONSIBLE TO COMPENSATE THE ECONOMIC LOSSES SUFFERED BY THE APPLICANT.7

II.

THE EXCLUSIVE OWNERSHIP OF THE WRECK OF CARGAST AND ALL ITS CARGO BELONG TO THE APPLICANT AND THE DEPLOYMENT OF THE VESSELS BY THE RESPONDENT TO THE WRECK VIOLATED INTERNATIONAL LAW8 A. THE APPLICANT HAS EXCLUSIVE OWNERSHIP OVER THE WRECK OF CARGAST AND ALL ITS CARGO9 1. The applicant has ownership over the wreck by virtue of Article 303(3) and Article 149 of UNCLOS9 a. Article 303(3) of UNCLOS 19829
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Team No. 676A b. Article 149 of UNCLOS 198211 2. B. The Applicant has ownership over the cargo of the Cargast12

THE RESPONDENTS DEPLOYMENT OF PATROL VESSELS TO THE SITE OF THE CARGAST VIOLATES INTERNATIONAL

LAW14 1. The Applicant has jurisdiction over the wreck of Cargast by virtue of Article 59 of UNCLOS and customary international law14 a. The Applicant has jurisdiction based on Article 59 of UNCLOS 198214 b. The Applicant has jurisdiction according to customary

international law16. 2. The Applicant has the right to prohibit any activity directed at the heritage according to Article 10(2) of the Convention on The Protection of Underwater Cultural Heritage 2001 (CPUCH)17

III.

THE APPLICANTS NAVY PURSUIT OF OSCAR DE LUZ INTO THE RESPONDENTS EEZ AND HIS SUBSEQUENT ARREST WERE

COMPLIANCE WITH INTERNATIONAL LAW18 A. THE PURSUIT OF OSCAR DE LUZ IS VALID UNDER

INTERNATIONAL LAW AS IT FULFILS THE REQUIREMENTS OF A LAWFUL HOT PURSUIT UNDER ARTICLE 111 OF THE UNCLOS 198218

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Team No. 676A 1. Competent authorities of the coastal State must have good reason to believe that the ship has violated its laws and regulations pertaining to any of its maritime zones18. 2. The pursuit must be commenced when the foreign ship is within the limits of the particular maritime zone20 3. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enabled it to be seen or heard by the foreign vessel21 4. The pursuit must be continuous and uninterrupted23 5. The right may be exercised only by military or clearly identifiable government ships or aircraft23 6. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state24 B. THE SUBSEQUENT ARREST OF OSCAR DE LUZ IS LAWFUL UNDER THE INTERNATIONAL LAW24

IV.

THE APPLICANT HAD JURISDICTION TO TRY OSCAR DE LUZ FOR THE ROSEHILL INCIDENT, AND IT HAS NO OBLIGATION TO RETURN HIM TO THE RESPONDENT A. THE APPLICANT HAD THE JURISDICTION TO TRY OSCAR DE LUZ IN RESPECT OF ROSEHILL INCIDENT 1. The Applicant has the criminal jurisdiction to try Oscar De Luz based on passive personality principle.26
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Team No. 676A a. A States duty to protect its national abroad by virtue of the bond of nationality26 b. The international community universally accepts the assertion of passive personality principle in invoking criminal

jurisdiction.27 c. The recent acceptance of the passive personality principle was evidenced in the 1970s by the codification of the principle by certain countries in their penal codes and treaties28 2. Respondents Penal Code did not provide for prosecution of offences outside its territorial waters30 B. THE APPLICANT HAS NO OBLIGATION TO RETURN OSCAR DE LUZ TO THE RESPONDENT32 1. The applicant is not obliged to return Oscar De Luz to the Respondent as there was no obligation to return him under any treaty or customary international law in respect of any arising disputes32 a. Obligation to return an offender only may arise from a concluding treaty between states concerned32 b. Malachi Gap Treaty does not provide any provisions as regards to the obligation to return any offenders in cases of any arising disputes.32 7) PRAYERS FOR RELIEF35

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Team No. 676A

INDEX OF AUTHORITIES

TREATIES Pages Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 2 (hereinafter 6,7,8 ARSIWA) Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes 4 within Africa (1994) Convention on Biological Diversity, June 5,1992,1760 U.N.T.S. 1,4 79(1992), Article 3, (hereinafter CBD) Convention on the Continental Shelf, 29 April 1958, United Nations, 4 Treaty Series, vol. 499 Convention on the Protection of the Underwater Cultural 9,10,11

Heritage,Nov.2,41 ILM 40 (2002)(hereinafter CPCUCH)

International Regulations for Preventing Collisions at Sea 1972 19,20 (hereinafter COLREG)

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Team No. 676A

The Cartagena Protocol on Biosafety to the Convention on Biological 4 Diversity UN Convention Against Torture and Other Cruel, Inhuman or Degrading 28 Treatment or Punishment United Nations Convention on the Law of the Sea, (1982) 1833 UNTS 3 / 3,9,14,18,23 [1994] ATS 31 / 21 ILM 1261 United Nations Conventions on High Seas (1958) U.N.T.S, vol. 450, p. 18 11, p. 82 Vienna Convention on the Law of Treaties, 23 May 1969, United 3 Nations, Treaty Series, vol. 1155, Article 18 (hereinafter VCLT)

UN DOCUMENTS General Assembly Pages General Assembly Resolution 45/116 of December 14, 1990 Model Law on Extradition (2004) 33 33

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Team No. 676A

International Law Commission (ILC) Pages Commentary of Articles on Responsibility of States for Internationally 6 Wrongful Acts, November 2001, Supplement No. 10 (A/56/10) Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of the ILC on its 53rd Session,159,UN Doc. 1 A/56/10,Article 2 (hereinafter Draft Articles on Prevention of

Transboundary Harm) International Law Commission, (2001), Commentary of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, vol. II, Part 6 Two, Yearbook of the International Law Commission

Other UN Documents Pages 12 UN Reports on International Arbitral Awards 281 (1957) Reports and Recommendations Made by the Panel of Commissioners Concerning the First Installments of E3 Claims,17 December 1998 8 (S/AC.26/1998/13) United Nations,The Law of the Sea:The Practice of States at the Time of 16 1

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Team No. 676A Entry into Force of the UNCLOS,Division for Ocean Affairs and The Law of the Sea,1994

JUDICIAL DECISIONS International Court of Justice Pages Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons , 1 1996 I.C.J, 225 Corfu Channel Case, (United Kingdom v. Albania), April 9, 1949, ICJ 1 Reports 4 Gabcikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1. C. J. 1 Reports 1997 North Sea Continental Shelf Cases,(Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands)I.C.J. Reports 1969 2,16,31 3 Nuclear Test Case (Aus. V. Fr.), 1974 I.C.J. 253 (Dec.20); Nuclear Tests Case (New Zealand v. France), Judgment, I.C.J. Reports 5 1974 Pulp Mills on the River Uruguay (Argentina v. Uruguay),Provisional 5 Measures, Order of 13 July 2006,I.C.J. Reports 2006 5

Team No. 676A

The S.S. Lotus (France v. Turkey) 1927, Permanent Court of 26,28 International Justice.

International Tribunal Law of the Sea Pages The M/V Saiga (No 2) (Saint Vincent and the Grenadies v Guinea) (1999) 18 International Tribunal for the Law of the Sea (ITLOS), Case No 2. Southern Bluefin Tuna (Austl & N.Z. v. Japan),39 I.L.M 1359 (Arb. Trib. Constituted under Annex VII of the U.N. Conv. On the Law of the Sea 4 2000)

Other International Bodies Pages Island of Palmas Case(United States v. the Netherlands)1928 2 R.I.A.A. 12 829, p.845. Lake Lanoux Arbitration Case (Spain v. France), November 16, 1957

MOX Plant (Ireland v. U.K.),42 I.L.M. 1187 (Permn. Ct. of Arb. 2003) Shufeldt (United States v. Guatemala), Department of State Arbitration

8 Series No.3, p 1099

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Team No. 676A

Trail Smelter (U.S. v. Can.), 3 R.I.A.A. 1905(1941)

1,5

Municipal Cases Pages Chua Han Mow v. United States, 730 F.2d 1308, 1311 (9th Cir. 1984), cert. 27 denied, 470 U.S. 1031 (1985) Public Prosecutor v Taw Cheng Kong, [1998] 2 SLR 410,[27]-[43]. Rivard v.United States, 375 F.2d 882, 885 (5th Cir.), cert. denied, 389 U.S. 27 884 (1967) United States v Richard Steinmetz 763 F.Supp. 1293 (1991), P.219-220 United States v. Smith, 680 F.2d 255, 257 (1st Cir. 1982), cert. denied, 459 28 U.S. 1110 (1983) United States v. Yunis, 681 F. Supp. 896, 900 (D.D.C. 1988), 27 appealdocketed, No. 89-3208 (D.C.Cir. Nov. 30, 1989) 10,11 29

Municipal Legislations Pages Bribery Act 2010 (UK) 29

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Team No. 676A

C digo Penal Federal (Mexico) Criminal Code (Thailand) (1956) Criminal Code 1969 (Iraq) Criminal Code of the Russian Federation (1996) Criminal Code, RSC 1985 Criminal Law (Codification and Reform) Act (Zimbabwe) (2004) French Penal Code (France) Historic Ship Wreck Act 1976(Australia) Korean Criminal Code, Article 6 (1983) Military Extraterritorial Jurisdiction Act of 2000, 18 USC 3261(2000) Penal Code (Japan)(1907) Penal Code of Indonesia (1982) Penal Code, (Singapore, cap. 224, 2008 rev. ed.) Penal Law of Israel (Israel) 1977 Prevention of Corruption Act, (Singapore, cap.241, 1993 rev. ed.) Restatement of Foreign Relations Law of the United States (Third) para

29 29 29 29 29 29 28 17 31 29 29 29 29 29 29

27 402, Comment g and Reporters Note 3

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Team No. 676A

Spanish Law of the Judiciary by the Organic Law 1/2009 on 3 November 28 2009 The Antiquities Act 1963(Finland) The Protection of Wreck Sites Act 1973(UK) United States Constitution 17 17 12

TREATISES, DIGEST & ARTICLES Pages Aly Mokhtar, 2005, Nullum Crimen, Nulla Poena Sine Lege: Aspects and 32 Prospects, Statute Law Review 26(1), 41-55, Oxford University Press Anastasia Strati, (1995) The Protection of the Underwater Cultural 15,16 Heritage: An Emerging Objective of the Contemporary Law of the Sea, Martinus Nijhoff Publishers Andrews, K.R. ed. (1959) English privateering voyages to the West Indies. 12 1588-1595, Hakluyt Society, Second Series Appolis, G., (1981) Lemprise maritime de letat cotier, pedone, A. editions 16 Paris Baird, Rachel (2009) Arrests in a Cold Climate (Part 2)- Shaping Hot 22 Pursuit through State Practice.Antarctic and Southern Ocean Law and

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Team No. 676A Policy Occasional Papers, 13

Bassiouni, M.Ch. (1974), OrderA.W. Sijthoff

International Extradition and World Public 32

Berge.( (1928)The Case of the S.S. "Lotus", 26 MicH. L. REV. 361, 367

28

Borschberg, (2002) The Seizure of the Santa Catarina Revisited,Journal of 13 Southeast Asian Studies,33.1 William Edward Hall,(1880) International Law,1st ed.,United 19

States.Clarendon Press (2006)Commentary on the Law of Prize and Booty, ed. and with an 12 Introduction by Martine Julia van Ittersum, Indianapolis:Liberty Fund, Craig Allen. (1989). Doctrine of Hot Pursuit: A Functional Interpretation 22 Adaptable to Emerging Maritime Law Enforcement Technologies and Practices, 20 Ocean Development and International Law Current Legal Development:Sweden, 8 International Journal of Marine and 17 Coastal law (1993) 524 D. Ireland-Piper, 2012 Extraterritorial Criminal Jurisdiction: Does the 30 Long Arm of the Law Undermine the Rule of Law?, Melbourne Journal of International Law 13 David J. Attard, (1987)The Exclusive Economic Zone in international law, 2 Clarendon Press

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Team No. 676A

Dixon, Martin, (2000)Textbook on International Law, Blackstone Ltd, 26 London, (4th edn) E. Hey, (1992), The Precautionary Concept in Environmental Policy and 5 Law: Institutionalizing Caution, vol. 4, Environmental Law Review Elias, The Doctrine of Intertemporal Law (1980) 74 AJCL 285. 12 Georgetown International

Factor v Labubenheimer (1933) 290 US 176; Oppenheims International 33 Law,9th ed., Vol 1, Oxford University Press Glanville L. Williams.(1939) Juridicial Basis of Hot Pursuit British Year 24 Book of International Law 20. 83 1939 Mark Staniforth, James Hunter, Emily Jateff, (2009)International 17 Approaches to Underwater Cultural Heritage, Maritime Law Issues, Challenges and Implications,Jack W. Harris,Nova Science Publishers Martine Julia Van Ittersum, (2006) Profit And Principle: Hugo Grotius, 13 Natural Rights Theories And the Rise of Dutch Power in the East Indies,1595-1615, Brill Mary E. Hazard, (2000)Elizabethan Silent Language ,University of 13 Nebraska Press Michael Akehurst, Jurisdiction in International Law (1972-73) 46 BYIL 25

Myron H. Nordquist, Shabtai Rosenne, Satya N. Nandan (1995),vol. V, 4

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Team No. 676A United Nations Convention on the Law of the Sea, 1982: A Commentary, Martinus Nijhoff Publishers Myron H. Nordquist, Shabtai Rosenne, Satya N. Nandan,(1995) United 23,24,25 Nation Convention on the Law of the Sea 1982 : A Commentary, vol.III, Martinus Nijhoff Publishers Nicholas M Poulantzas. (2002). The Right of Hot Pursuit in International 19 Law. The Hague: Martinus Nijhoff Publishers Patrick O. Keefe,(1996)Protecting the Underwater Cultural Heritage: The 11 International Law Association Draft Convention,Marine Policy,Vol. 20, No.4, 297 Peter Borschberg,(2010)Hugo Grotius, the Portuguese, and Free Trade in 12 the East Indies, National University of Singapore Press Research in International Law Under the Auspices of the Faculty of the 27 Harvard Law School, Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 443, 445 (Supp. 1935) Harvard Research Project Restatement of Foreign Relations Law of the United States (Third) para 27 402, Comment g and Reporters Note 3 Sarah Dromgoole (2003),2001 UNESCO Convention on the Protection of 9 the Underwater Cultural Heritage, The International Journal of Marine And Coastal Law Volume 18,No,1. The Cutting case, Moore, Digest of International Law, vol 2 (1906) 27

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Team No. 676A

Tullio Scavozi, The Application of Salvage Laws and other Rules of 10,17 Admiralty To the Underwater Cultural Heritage: Some Relevant Cases, Chapter 2 UNCLOS 1982 Commentary: Supplementary Documents, vol. 1, p.775 W. Bishop, International Law Cases And Materials 440 (1962) A. D'amato, International Law And World Public Order 564 (1980) Yearbook of the ILC. 1956 , Vol II Yearbook of the International Law Commission (ILC) 1956, Vol I 19 28 28 6 21

MISCELLANEOUS Pages Declaration of the United Nations Conference on the Human Environment; U.N. Doc. A/Conf.48/14/Rev. 1(1973), Principle 21 (hereinafter Stockholm 1 Declaration) https://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no 2 =XXI~6&chapter=21&Temp=mtdsg3&lang=en last accessed at 12/1/14 Rio Declaration on Environment and Development, UN Doc. 1 A/CONF.151/26 (vol. I), Principle 2 (hereinafter Rio Declaration) World Charter for Nature 1982 4

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Team No. 676A STATEMENT OF JURISDICTION

The Republic of Ritania and the State of Amalea have submitted the following matters by special agreement to the International Court of Justice pursuant to Article 36, paragraph 1, of the ICJ Statute. On 17th September 2013 in accordance with Article 40, paragraph 1, of the ICJ Statute, both Governments jointly notified the Registrar of the Court by special agreement. Thus, the Court has jurisdiction in the present dispute and may resolve all legal questions submitted by the parties. Both the Republic of Ritania and the State of Amalea have agreed to act consistently in accordance with the Courts decision.

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Team No. 676A

QUESTIONS PRESENTED

The Applicant respectfully asks this Honourable Court: 1. Whether the Respondents acts and omissions with respect to the development of Excelsior Island had violated international law and therefore the Applicant is entitled to seek compensation from the Respondent for economic losses caused by the landslides;

2. Whether the Applicant is entitled for exclusive ownership of the wreck of the Cargast and all artifacts recovered from it, and the Respondent s deployment of patrol vessels to the site of the Cargast had violated international law;

3. Whether the Applicant Navys pursuit of Oscar de Luz into the Applicants EEZ and his subsequent arrest were in compliance with international law;

4. Whether the Applicant had the jurisdiction to try and convict Luz for criminal actions related to the Rosehill incident.

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Team No. 676A STATEMENT OF FACTS

The State of Amalea (Applicant), a developing, newly industrialized island state, and the Republic of Ritania (Respondent), a developed, industrialized peninsular state, are separated by the Strait of Malachi (Strait) (Comp., 1). The Applicant was among the first nations to develop and implement sustainable fishing practices (Ibid., 12). The Straits of Malachi Historically, the Applicant fishing vessels have plied almost every part of the Strait. The fishing industry is economically important to the Applicant. (Ibid., 3). Negotiations between the Applicant and the Respondent on the demarcation of their EEZ claims led to the creation of the Malachi Gap Treaty in 1992. With respect to an area of approximately 1,200 square n.m., known as the Malachi Gap, the parties agreed to apportion their rights as set out in the Treaty. (Ibid., 15, Annex B). The Malachi Gap Treaty The Malachi Gap Treaty (Treaty) is important for both countries as it allows the Applicant to protect vital fisheries resources within the Strait, and the Respondent to develop subsea resources. The whereas clause of the treaty provides that a key shared objective of the Treaty is to balance, and insofar as possible to promote, the interests of the States Parties in respect of exploration, exploitation, and protection of this maritime area of great importance to them both. (Ibid., 16).

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Team No. 676A Dorian Wrasse The Dorian wrasse is a type of fish known to breed only in the Sirius Plateau, a small area of the Strait. The fish is traditionally, historically and economically significant to the Applicant and is consumed on many important occasions. Economically, the Dorian Wrasse fishing industry had been developed for both local and international market. The Applicant reported that domestic and foreign sales of the fish had significant contribution to the Applicants economy and was projected to have higher returns over the next decade. (Ibid., 18). Drastic Decrease of Dorian Wrasse Population In 2006, a project to develop an artificial island Excelsior Island on the Sirius Plateau was announced by Excelsior Island Gas & Power Limited (EIGP). The construction of the island requires two billion cubic meters of sand and rock to be dredged from the areas within the Malachi Gap (Ibid., 20). The Applicant responded to this by insisting that such project can only be undertaken with the consent of both parties. (Ibid., 21). The Respondent replied that the Applicants consent for the project was not required as the island would be built entirely within the Respondents uncontested EEZ (Ibid., 22). The Applicant published a report prepared by the International League for Sustainable Aquaculture (ILSA), an international organization of prominent marine scientists, concluding that any major dredging activity in the Malachi Gap was most likely to endanger the environment and native species, particularly the Dorian wrasse species. The report was forwarded to the Respondent (Ibid., 25).

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Team No. 676A EIGP prepared an environmental impact assessment (EIA) for the project as required by the Respondents licensing process. The EIA did not address the potential impacts of the dredging process on the marine environment and fish species in the Malachi Gap. Nevertheless, the Respondent approved the EIA and granted the permit to EIGP for the construction of the Island in 2009 (Ibid., 27). After three months, a landslide occurred as the direct result of the dredging. The landslide caused high water turbidity level and dissociation of gas hydrates in Sirius Plateau and had also drastically decreased the Dorian Wrasse population. A report sent to the Applicants Ministry of Fisheries showed the fallen in the total catch of the fish from 25% to 15% by the end of 2010 and 2011 as compared to the total catch in 2000. ILSA noted that the population would not return to pre-landslide level by the end of the century (Ibid.,28-30). The Applicant halted the fishing of Dorian wrasse in 2012 (Clarifications, 4) Wreck of Cargast In 2010, the wreck of Cargast, recorded lost at sea in 1510, was found approximately 80 n.m. from the Applicants coast. The captain of Cargast was Baldric Verdigris, an Amalean who was given a letter of marque from the King of Amalea. The ship was granted to him by the King to bring glory to the kingdom (Ibid., 31-32). Historians unanimously stated that the cargo that went down with the Cargast contained treasures obtained during the sack of Helios and treasures from trading missions that preceded it (Ibid., 33). In January 2011, the Applicants Cultural Affairs Ministry announced that it had acquired five objects in an exploratory dive to the wreck by Milo Belleza, a treasure diver of Swiss nationality (Ibid., 36). In June 2011, the Ministry stated that the wreck and other items were recovered in good faith (Ibid., 38).

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Team No. 676A Deployment of Ritanian Vessels The Respondent denounced the Applicants granting of license to Belleza, and regarded it as a violation of the provision and objective of the Treaty and customary international law (Ibid., 39). Shortly after that, the Respondents Navy began patrolling t he area of the wreck. The Applicant objected the incursion on the ground that it has gone beyond the Respondents jurisdiction (Ibid., 40). The Rosehill Collision In 2011, Rosehill, an Applicant-registered cruise ship was heading to the Helios port (Respondents capital). Carrying 556 passengers where 70% of them were the Applicants citizens, the Rosehills owners had obtained permission to navigate the vessel close to the Excelsior Island (Ibid., 41). As Rosehill approached the Island, Daedalus, a stolen Respondent-flagged yacht controlled by Oscar de Luz, a citizen of the Respondent, was speeding towards the Island. Rosehills captain manoeuvred away from the fast-approaching Daedalus, to avoid imminent collision. Rosehill was forced to veer towards the Island, and struck the Island with significant impact which led to explosions that killed five nationals of the Respondent on the Island. 127 passengers and crews of Rosehill were killed due to the incident (Ibid., 42-43). Rosehills captain immediately radioed the Applicants authorities about the incident (Ibid., 42). The Amalean Coastal Protection Service (ACPS) issued an alert describing the collision and noted that the yacht was speeding away bearing west northwest, creating danger for other vessels. As Daedalus drew within 23 N.M. of the Applicants coastline, the Applicants Navy ship, Icarus, set out to intercept Daedalus (Ibid., 44-45).

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Team No. 676A When Icarus was within visual range, the captain ordered Daedalus to stop over several different radio frequencies commonly used in the Strait. However, Daedalus turned and sped due east. Icarus pursued Daedalus, crossing into Respondents EEZ. Luz suddenly steered Daedalus towards Icarus. The ships collided at high speed, causing Daedalus to sink. Luz leapt overboard a dinghy before being captured by Icarus crew and declared under arrest for various charges (Ibid., 45-49). Trial and Conviction of Oscar de Luz Luz was charged and convicted by the Applicants Court for murder for all the 127 deaths, property crimes and negligent operation of a seagoing vessel in relation to the damage of Rosehill and Icarus. He was also convicted for reckless endangerment of Rosehill, Icarus, and the persons onboard of the vessels, as well as various Amalean fishing vessels operating within the Malachi Gap and the Amalean waters. All charges were within the scope of Amaleas Penal Code (Ibid., 47-49, Clarifications, 10).

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Team No. 676A SUMMARY OF PLEADINGS

1.

The Respondent did not comply with its international obligation to prevent harms to the other States with regard to Excelsior Island. The dredging process authorized by the Respondent had caused a landslide and transboundary harm which consequently decreased the population of Dorian Wrasse and adversely affected the Applicants domestic income. The Respondent had failed to monitor the dredging activities without taking into account that the Environmental Impact Assessment (EIA) submitted by EIGP did not address the potential impacts of the dredging on the waters of Malachi Gap and on the fish species living there. As the Respondent failed to exercise due diligence, the Applicant, is entitled for the compensation from the Respondent for the economic losses suffered by the Applicant.

2.

By virtue of the Articles 303(3) and 149 of UNCLOS 1982, the Applicant has the ownership over the wreck of the Cargast. Almost all jurisdictions provide that the rights of the owners over the property are not divested simply by the sinking of their vessels. The Applicant also has ownership over the cargo of the Cargast and acquires title over the seized property, as acquired by the Netherlands which was the successor in tittle to the VOC who was granted with a letter of Marque with regards to the cargo of Santa Catarina. Based on Article 59 of UNCLOS 1982, the residual rights and jurisdictions in the EEZ to which the convention is silent,it shall be determined on the basis of equity, taking into accounts all relevant circumstances. It is also a customary international law because a number of States have extended their jurisdiction over underwater cultural property on the continental shelf and as a result, the Respondents deployment of petrol vessels to the site of the Cargast violated international law.
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Team No. 676A 3. The hot pursuit exercised by the Icarus, the Applicants naval vessel, was lawful under the international law as it fulfilled all the requirements under Article 111 of UNCLOS 1982. The Applicant has the right to commence the hot pursuit of the Daedalus which was under the control of Oscar De Luz who was recklessly operating it in the Applicants contiguous zone. The conduct was an offense under the Applicants Penal Code which is in line with the Collision Regulations 1972 that requires every vessel to navigate in a safe speed to avoid collisions. The pursuit was commenced after an order to stop has been issued by the Icarus to the Daedalus and the pursuit was continuous and uninterrupted, allowing it to be continued to the high seas. The hot pursuit ended when the Daedalus sunk in the Respondents uncontested EEZ after colliding with the Icarus, before the Daedalus could enter the territorial sea of its own state or of a third state. As the hot pursuit was lawful, consequently the Applicant has the right to arrest.

4.

The Applicant has jurisdiction to try and convict Luz for his crimes in relation to the Rosehill incident which caused substantial number of deaths of the Applicants nationals. This is based on the passive personality principle which allows a State to try and punish a foreigner for crimes committed abroad affecting its nationals. This principle, is premised on the duty of a sovereign state to protect its nationals. It has been universally accepted by the global community through codifications of the principle into local legislations and treaties. Furthermore, the Respondent did not expressly prescribe for offences committed outside its territorial waters. Article 59 of UNCLOS provides that resolution of conflicts in the EEZ should be based on equity, taking into account the important interests of both states and the international community. By virtue of the provision, it is fair and reasonable that the Applicant

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Team No. 676A does have a better claim of jurisdiction because the imited application of the Respondents penal laws will cause unfairness to the Applicant and victims of the incident. As regard to its obligation to return Luz to the Respondent, the customary international law imposes no duty upon the Applicant to extradite in the absence of a treaty providing for extradition.

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Team No. 676A PLEADING I. THE DEVELOPMENT OF EXCELSIOR ISLAND VIOLATED

INTERNATIONAL LAW THUS ENTITLING THE APPLICANT TO CLAIM FOR ECONOMIC LOSS A. THE RESPONDENTS ACT OF DEVELOPING EXCELSIOR ISLAND VIOLATED ITS OBLIGATIONS UNDER INTERNATIONAL LAW 1. The Respondent violated customary international law not to cause transboundary harm The duty not to cause transboundary harm is a rule of customary international law. 1 Transboundary harm may be defined as harm caused in the territory or in other places under the jurisdiction or control of a State other than the State of origin, whether or not the States share a common border2. It is conceded that the Respondent does have jurisdiction over the seabed and subsoil3 within the Malachi Gap, however the dredging authorized by the Respondent4 had caused the
1

Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons,1996 I.C.J,225; Trail Smelter (U.S. v. Can.), 3R.I.A.A.1905(1941); Corfu Channel Case,(United Kingdom v. Albania, April 9,1949,ICJ Reports 4; Lake Lanoux Arbitration Case(Spain v. France), November 16,1957,12 UN Reports on International Arbitral Awards 281(1957); GabCikovo-Nagymaros Project (Hungary v. Slovakia), Judgment, 1.C. J. Reports 1997,p.7; Declaration of the United Nations Conference on the Human Environment;U.N. Doc. A/Conf.48/14/Rev.1(1973), Principle 21(Stockholm Declaration); Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I)(Rio Declaration), Principle 2; Convention on Biological Diversity, June 5,1992,1760 U.N.T.S. 79(1992), (CBD), Article 3. Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, Report of the ILC on its 53rd Session,159,UN Doc. A/56/10 (Draft Articles on Prevention of Transboundary Harm), Article 2. [C] Appendix B [C] 25
1

3 4

Team No. 676A landslide5 which adversely affected the population of the Dorian Wrasse which is under the Applicants jurisdiction.6 Thus, the Respondent has breached its obligation to prevent transboundary harm 2. The Respondent failed to give due regard to the rights of the Applicant under the Malachi Gap Treaty and Article 56 of United Nations Convention on the Law of the Sea 1982 (UNCLOS 1982) Both the Applicant and the Respondent are parties to the Malachi Gap Treaty. 7 The Respondent has signed and ratified the UNCLOS 1982 and at the same time declared a 200n.m. exclusive economic zone (EEZ) while the Applicant having only signed the 1982 convention, also has declared a 200 n.m. EEZ.8 Despite the Applicant not ratifying UNCLOS 1982, the text of the convention may be evidence of a customary rule of international law 9, since it is a widely accepted international treaty with 166 parties to it.10 Therefore, even if the provisions of UNCLOS 1982 may not be applied as a treaty rule, it may still be applied as a rule of customary international law binding on all States including the Applicant. 11 In any case, a signatory party is still bound to abide by the rules of such treaty even if the signing

5 6 7 8 9

[C]28 [C]30 [C] Appendix B [C]10-11 David J. Attard, The Exclusive Economic Zone in international law,Clarendon Press,1987, p.34. https://treaties.un.org/pages/ViewDetailsIII.aspx?&src=TREATY&mtdsg_no=XXI~6&cha pter=21&Temp=mtdsg3&lang=en last accessed at 12/1/14. North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v. Netherlands) ,I.C.J. Reports 1969 3, p.37.
2

10

11

Team No. 676A State had yet to ratify such treaty.12 In exercising its rights under the Malachi Gap Treaty, the Respondent is obliged to give due regard to the rights of the Applicant.13 Such obligation is similarly imposed to the Respondent by virtue of Article 56 of UNCLOS 198214. In breach of this obligation, the Respondent had failed to provide an environmental impact assessment (EIA) addressing the potential impacts on the waters of the Malachi Gap and the fish species living there.15 Failure to give due regard had resulted in a landslide, directly affecting the population of the Dorian Wrasse16. The Respondent had also disregarded the report of the International League for Sustainable Aquaculture (ILSA) which reported that the dredging process would adversely affect the marine environment.17 3. The Respondent failed to prevent damage to the environment as required by International Law a. The Respondent breached its duty to protect and not to cause damage to the environment under the Convention on the Continental Shelf The Respondent is under an obligation to protect and preserve marine environment.18 The duty is not limited to prevention of damage only but requires active measures to maintain
12

Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol.1155 (hereinafter VCLT), Article 18. [C] Appendix B, Article 12(b)

13 14

United Nations Convention on the Law of the Sea, Article. 56, Dec. 10, 1982, 1833 U.N.T.S. 397 (hereinafter UNCLOS). [C]23 [C]25 [C]25 UNCLOS 1982,Article 192-193.
3

15 16 17 18

Team No. 676A or improve the present condition of marine development.19 Under the Convention on Continental Shelf on which both States are parties to,20 the Respondent must ensure that the exploitation of natural resources must not result in unjustifiable interference with fishing and conservation of living resources of the sea.21 The dredging activities caused the landslide and resulted in extremely high turbidity levels and higher concentration of several dissolved gases in the Sirius Plateau.22 The landslide also had a significant impact on the Applicants commercial fishing activities which subsequently had to be halted.23 b. The Respondent did not exercise precautions before granting the license to Excelsior Island Gas & Petroleum Limited (EIGP) The Precautionary principle has been applied by several tribunals and treaties.24 The application of this principle does not require scientific certainty as it lies on assumptions including vulnerability of the environment, the limitations of science to accurately predict threats to the environment, and the availability of alternative, less harmful process and
19

Myron H. Nordquist, Shabtai Rosenne, Satya N. Nandan (1995),vol.V, United Nations Convention on the Law of the Sea,1982: A Commentary, Martinus Nijhoff Publishers p.40. [C]8

20 21

Convention on the Continental Shelf, 29 April 1958,United Nations,Treaty Series, vol.499, p.31, Article 5(1). [C]28 [C]Clarification4

22 23 24

Gabcikovo-Nagymaros Project, supra n.1; Southern Bluefin Tuna (Austl & N.Z. v. Japan),39 I.L.M 1359 (Arb. Trib. Constituted under Annex VII of the U.N. Conv. On the Law of the Sea 2000), MOX Plant (Ireland v. U.K.),42 I.L.M. 1187 (Permn. Ct. of Arb. 2003); World Charter for Nature 1982, Principle 11; The Cartagena Protocol on Biosafety to the Convention on Biological Diversity, para. 5, p.2 ; Rio Declaration, supra n.1, Principle 15, p. 3; Bamako Convention on the Ban of the Import into Africa and the Control of Transboundary Movement and Management of Hazardous Wastes within Africa (1994), Article 3 (f).
4

Team No. 676A products.25 When there is a risk of environmental damage, the burden shifts to the author of the activity to prove that there will be no damaging consequence.26 The report by ILSA showed that the dredging activities would be catastrophic for native species and the ecosystem.27 The lack of scientific certainty from the EIA28 in proving the possibility of harm cannot be an excuse for the Respondent to not take proper precautions. In failing to guard against the risk of landslide despite the ILSA report sent, the Respondent is in breach of the precautionary principle. 4. The Respondent did not carry out its duty with regard to Environmental Impact Assessment (EIA) as required by UNCLOS and Customary International Law The duty to conduct an EIA when a proposed activity is likely to cause transboundary harm has attained customary international law status.29 EIA is required not only before the commencement of the project, but continue as long as a project of some magnitude is in operation.30 The Respondent is under the obligation to conduct an EIA when there are reasonable grounds to believe that activities under their jurisdiction may cause significant and harmful changes to the marine environment.31 The report by ILSA had informed the
25

E. Hey, (1992), The Precautionary Concept in Environmental Policy and Law: Institutionalizing Caution, vol. 4, Georgetown International Environmental Law Review, p 303-318. Nuclear Tests Case (New Zealand v. France), Judgment, I.C.J. Reports 1974, p. 457 [C] 25 [C] 23

26 27 28 29

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 13 July 2006,I.C.J. Reports 2006, p. 143; UNCLOS, supra n.14, Articles 204,206; Draft Articles on Prevention of Transboundary Harm, supra.n.2, Article 7; Rio Declaration, supra n.1, Principle 17. Trail Smelter , supra n.1,p.1907. UNCLOS, supra n.14, Article 206.
5

30 31

Team No. 676A Respondent on the harmful effects of the dredging activities on Sirius Plateau32 which proves that the Respondent should have reasonable grounds to believe that the dredging activities may cause significant changes to the marine environment. With regards to significant harm, the International Law Commission explained that it must be more than detectable but need not be at the level of serious or substantial where it leads to a real detrimental effect on matters such as, human health, industry, property, environment or agriculture in other States.33 The report by ILSA concluded that the dredging could prove catastrophic.34 The risk was proven to be true when the Dorian Wrasse was declared an endangered species.35 The Respondents failure to conduct an EIA on the potential impacts on the waters of Malachi Gap or on the fish species living there constituted a breach of its obligation.36 B. THE BREACH OF THE INTERNATIONAL OBLIGATION IS

ATTRIBUTABLE TO THE RESPONDENT Article 12 of ARSIWA stated that there is a breach of international obligation by a State when its act is not in conformity with its obligation regardless of its origin 37. The term regardless of its origin means it applies to all international obligations of States. 38 The
32 33

[C] 25

International Law Commission, (2001), Commentary of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities, vol. II, Part Two, Yearbook of the International Law Commission, p. 152. [C] 25 [C] 30 [C] 23

34 35 36 37

Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), Article 12 (ARSIWA)
38

Commentary of ARSIWA, supra n.38, p.55

6

Team No. 676A breach of an obligation on the other hand depends on the term of the obligation, its purpose and the fact of the case.39 The Respondent as earlier discussed, were under various obligations imposed by Treaties and customary international. It has also been proven that the Respondent failed to carry out such international obligations The act of the Ritanian Department of Resource Management (RDRM) granting the license to EIGP which can cause significant transboundary harm is a clear breach of its international obligation. Failure to conduct an EIA and to monitor the dredging activities earlier permitted constituted an omission which is also a violation of its international obligation. A State is only responsible for acts or omissions that are attributable to it. 40 An act of the State must involve some action or omission by a human being or group who are its agents and representatives.41 Although the dredging activities were conducted by EIGP, the fact that shows that it was authorised by the RDRM42 and had the Respondent complied with its international obligation, the dredging would have not occur. C. THE RESPONDENT IS RESPONSIBLE TO COMPENSATE THE

ECONOMIC LOSSES SUFFERED BY THE APPLICANT. It is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it.43 The compensation for economic losses which the Applicant is
39 40 41 42 43

Ibid, p. 54 ARSIWA, supra n.37,Article 2. Commentary of ARSIWA, supra n.38, p. 35. [C] 27 Gabcikovo-Nagymaros Project, supra n.1, p. 81.
7

Team No. 676A claiming for is the loss of profit caused by the harm to the Dorian Wrasse population. Loss of profit is claimable under Article 36 of ARSIWA insofar as it is established.44 However, a claim for future profit must not be speculative45 and there must be a clear and convincing evidence of ongoing and expected profitability.46 It is necessary to evident a history of successful operations to warrant a conclusion that there would have been future profitable contracts.47 The Applicants claim is not speculative because the domestic and foreign sales of the fish generated USD 160 million annually by the year 2000.48 This shows that there were successful operations before the landslide occurred. The fact that the Amalean tradition requires the fish be eaten in major events and efforts of introducing market substitute for it have been unsuccessful49 show that the Dorian Wrasse is high in demand and is expected to be of high profitability. The Applicant also practiced sustainable fishing50 to prevent the loss of the Dorian Wrasse population.

44 45

ARSIWA, supra n.37, Article 36.

Shufeldt (United States v. Guatemala), Department of State Arbitration Series No.3, p 1099. Reports and Recommendations Made by the Panel of Commissioners Concerning the First Installments of E3 Claims,17 December 1998 (S/AC.26/1998/13), p. 34. Ibid, p. 37. [C] 18 [C] 18 [C] 12
8

46

47 48 49 50

Team No. 676A II. THE EXCLUSIVE OWNERSHIP OF THE WRECK OF CARGAST AND ALL ITS CARGO BELONG TO THE APPLICANT AND THE DEPLOYMENT OF THE VESSELS BY THE RESPONDENT TO THE WRECK VIOLATED INTERNATIONAL LAW A. THE APPLICANT HAS EXCLUSIVE OWNERSHIP OVER THE WRECK OF CARGAST AND ALL ITS CARGO The Convention on the Protection of Underwater Cultural Heritage 2001 (CPUCH 2001) makes no reference to ownership at all.51 However the overall objective is clearly to protect52 underwater cultural heritage (UCH) which is an integral part of the cultural heritage of humanity53. Further, preservation of the underwater cultural heritage is a responsibility that rests with all States.54 It is on this basis, the Applicants claim ownership over the wreck.55 1. The applicant has ownership over the wreck by virtue of Article 303(3) and Article 149 of UNCLOS a. Article 303(3) of UNCLOS 1982

Article 303(1) establishes a general duty to protect objects of an archaeological and historical nature found at sea continues by stating that, such duty shall not prejudice the right

51

Sarah Dromgoole(2003),2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage (CPUCH),The International Journal of Marine And Coastal Law Volume 18,No.1, p.70. Preamble of the CPUCH 2001. CPUCH. Article 2(1), 2(2) UNCLOS, supra n.14, Article 303(1). [C] 34
9

52 53 54 55

Team No. 676A of identifiable owners. So far as right of ownerships are concerned, almost all jurisdictions provide that the owners do not lose their property rights simply by the sinking of their vessel.56 This concept is best illustrated in the agreement between Australia and the Netherlands regarding the Dutch East India Company ships that wrecked off the Australian coast. Netherlands acting successor for the Dutch East India Company claims to retain title over the wrecks despite it being in Australian waters. Netherlands had subsequently transferred the title of the sunken vessels to Australia, while they only retained a continuing interest over the vessels.57 Further, the Bell of Alabama case concerns a privateer ship that was built by the confederate navy which sunk off the French coast. The Court of Appeal, agreeing with the District Court held that the United States was the owner of the ship and everything that was retrieved from it including a bell, which was the subject matter of dispute. The United States as the successors of the confederacy had title over the ship that belonged to a privateer acting as agent for the confederate.58 Based on the cases cited above, the State owner retains title over the sunken property since they were the successors in title of the sunken vessels. In our case the wreck of Cargast situated in the EEZ of Amalea59 is owned by the Applicant State since the ship belonged to

56

CPUCH:An Emerging Objective of the Contemporary Law of the Sea,Martinus Nijhoff Publishers,1995,p.125 Tullio Scavozi,The Application of Salvage Laws and other Rules of Admiralty To the Underwater Cultural Heritage:Some Relevant Cases,Chapter 2,P.21-22. United States v Richard Steinmetz , supra n.58, p.219-220. [C] Appendix A
10

57

58 59

Team No. 676A the King and was granted to Captain Baldric Verdigris.60 Records also show that the King of Amalea had provided the ship with canons and other small weapons61. Like the CSS Alabama, the fact that the Cargast was granted to a privateer would not negate the flag states right to retain title over it.62 Therefore, being the owners of the ship, the Applicants title should not be divested by mere virtue of it having sunk.
b. Article 149 of UNCLOS 1982

Article 149 of the UNCLOS relates to all objects of an archaeological and historical nature found in the Area. The Area here means the seabed and ocean floor beyond the limits of national jurisdiction63 which includes the Exclusive Economic Zone (EEZ) and the Continental shelf64. Article 149 further states that such objects shall be preserved or disposed of for the benefit of mankind as a whole, with particular regard being paid to the preferential rights of the State of origin, the State of cultural origin, or the State of historical origin. The ship has its origin in the Applicant State since the ship that bore the Kings escutcheon was granted by the Applicant to its captain Baldric Verdigris to to bring glory to the kingdom of Amalea65. Therefore the Applicants ownership of the Cargast is presumed to continue to exist.66

60 61 62 63 64

[C] 32 [C] 32 United States v Richard Steinmetz , supra n.58, p.221-222. UNCLOS, supra n.14, Article 1.

Patrick O. Keefe,Protecting the Underwater Cultural Heritage: The International Law Association Draft Convention,Marine Policy,Vol. 20, No.4, 297 (1996); p.299. [C] 32 CPUCH, supra n.51, p.68.
11

65 66

Team No. 676A

2.

The Applicant has ownership over the cargo of the Cargast The concept of inter temporal law has its roots in international law. 67 Judge Huber

states, a juridical fact must be appreciated in the light of the law contemporary to it and not the law in force at the time when a dispute in regard to it arises or falls to be settled.68 Thus, the ownership of the cargo which includes the booty from the sack of Helios should not be measured by contemporary international law, but rather by international law as it persist at that time the incident occurred. A letter of marque essentially deputized the private individual to act as a naval officer and converted what would ordinarily be piracy into legally sanctioned behaviour; those granted a letter of marque were referred to as privateers while their captures prizes.69 Queen Elizabeth, for example, commissioned both Francis Drake and James Lancaster to engage in privateering against her Spanish and Portuguese enemies 70, while the United States Constitution grants the right to issue letters of marque to Congress.71 In the capture of Santa Catarina (1603); a privateer named Heemkerck from the Netherlands granted with a letter of Marque from the Prince of Netherlands had laid siege on

67 68 69

Elias,The Doctrine of Intertemporal Law (1980)74 AJCL 285. Island of Palmas Case(United States v. the Netherlands)1928 2 R.I.A.A. 829, p.845.

Peter Borschberg,Hugo Grotius, the Portuguese, and Free Trade in the East Indies, National University of Singapore Press,2010,p.162. Andrews, K.R. ed., English privateering voyages to the West Indies. 1588-1595, Hakluyt Society,Second Series, 111(1959). United States Constitution, Article 1, Sec. 8.
12

70

71

Team No. 676A the Santa Catarina a merchant ship belonging to the Portuguese.72 The prize acquired through the siege was subsequently auctioned73and the proceeds from the sale that went to the predecessor of the Dutch East India Company (VOC) amounted to over 3.5 million guilders74. The VOC subsequently claimed the Santa Catarina as its own, and the court of admiralty had granted the ship and its cargo prize to the VOC75, despite the siege being unprovoked76. During this period capturing ships as prizes was common; just a year before Heemskercks attack, James Lancaster seized a Portuguese carrack off the Straits of Singapore and dragged it back to England.77 Furthermore, when Francis Drake captured a string of Spanish galleons in 1581, Queen Elizabeth actually went to the London dock herself and knighted Drake on the deck of his ship.78 The point here being, the Santa Catarina was not the first ship seized by a foreign power.79 During these periods, such practice was clearly widespread and considered the norm of the time. They were even considered justified at the time, for example the Dutch Admiralty Court in deciding on Santa Catarina, held that the capture was permitted by
72

Commentary on the Law of Prize and Booty, ed. and with an Introduction by Martine Julia Van Ittersum, Indianapolis:Liberty Fund,2006 Borschberg,The Seizure of the Santa Catarina Revisited,Journal of Southeast Asian Studies,33.1(2002), p. 37-38. Ibid, p.35; Martine Julia Van Ittersum, Profit And Principle:Hugo Grotius, Natural Rights Theories And the Rise of Dutch Power in the East Indies,1595-1615,Brill, 2006, p.36. Ibid, p.117. Ibid, p.21. Ibid, p.xiii. Mary E. Hazard, Elizabethan Silent Language (University of Nebraska Press, 2000) p.251. Van Ittersum,supra n.74, p.xiii.
13

73

74

75

76 77 78 79

Team No. 676A natural law, (jus gentium) and the commission of his Princely Excellency 80. Hugo Grotiuos in justifying the attack, deemed that it was a personal war that Heemskerck could initiate, and to the victor goes the spoils.81 Grotiuos makes no difference between prize and booty, where one refers to property seized at sea while the other on land82. Therefore, since at the time when the sack of Helios took place the law prevalent was the law of Prize and Booty which allowed for the seizure of property in an attack either at sea or land. The Applicant can acquire title over the seized property, as was acquired by the Netherlands as successors of the VOC with regards to the attack on Santa Catarina. B. THE RESPONDENTS DEPLOYMENT OF PATROL VESSELS TO THE SITE OF THE CARGAST VIOLATES INTERNATIONAL LAW 1. The Applicant has jurisdiction over the wreck of Cargast by virtue of Article 59 of UNCLOS and customary international law a. The Applicant has jurisdiction based on Article 59 of UNCLOS 1982 In cases of overlapping of EEZs83 and continental shelfs84 of adjacent and opposite coastal States; such States are duty bound to conclude an agreement for the delimitation of such overlapping areas in order to achieve an equitable solution. The Applicant and the respondent have answered this call, by concluding the Malachi Gap treaty which governs the

80 81 82 83 84

Van Ittersum, supra n.74, p.522. Van Ittersum, supra n.72, p.388. Ibid, p.68 UNCLOS, supra n.14, Article 74. UNCLOS, supra n.14, Article 83.
14

Team No. 676A exploitation of resources that may be found in the Malachi Gap.85 However the Malachi Gap treaty does not cover underwater cultural property found in the Gap.86 Article 59 recognises that the residual rights and jurisdictions in the EEZ to which the convention is silent on shall be determined on the basis of equity. 87 In doing so, reference should also be made to all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.88 Hence, for ship wrecks that fall under the definition of underwater cultural property found in the EEZ, the jurisdiction over such property will be determined on the basis of equity and in light of all the relevant circumstances.89 As was discussed earlier, the Cargast had always belonged to the Applicant State ever since it was granted to Captain Baldric Verdigris for the purpose of bringing glory to the Kingdom of Amalea.90 Although it is conceded that the wreck of Cargast is situated within the Malachi Gap where both parties have jurisdiction91, underwater cultural property is not covered by the Malachi Gap treaty.92 Therefore, the regime of Article 59 would equally apply in such a situation.93 Furthermore, factually speaking the respondent albeit discovering the

85 86 87 88 89 90 91 92 93

[C] 15 [C] Appendix B Anastasia Strati, supra n.56, p.265. UNCLOS, supra n.14, Article 59. Anastasia Strati, supra n.56, p.266. [C] 32 [C] 31 [C] Appendix B Anastasia Strati,supra n.56, p.266.
15

Team No. 676A wreck of Cargast, took no further step to secure the wreck site.94 This might be supported by the fact that the wreck site is situated only 80 n.m. from the coast of the Applicant,95 hence for all practical purposes jurisdiction over the wreck of Cargast is vested with the Applicant who has taken steps to secure the wreck.96 b. The Applicant has jurisdiction according to customary international law Currently, a number of States have extended their jurisdiction over underwater cultural property on the continental shelf; these States include Australia, Denmark, Ireland, Portugal, Spain, Netherlands and Yugoslavia.97 It may be said that the number of States that do this is insufficient to establish a rule of customary international law; however, most of the States that do extend their jurisdiction over to the continental shelf are specially affected States in which their conducts may be given due consideration in establishing a rule of custom.98 In relation to this, it will be more difficult for third States to oppose the expansion of coastal jurisdiction beyond the territorial sea over archaeological objects found there like the wreck of Cargast.99 Alternatively, it may be argued that archaeological and historical objects found in the continental shelf or EEZ are governed by the freedom of high seas 100. Hence it can be concluded that under the freedom of high seas, all States are entitled to undertake
94 95 96 97 98 99

[C] 40 Clarifications, 31 [C] Anastasia Strati, supra n.56, p. 269 North Sea Continental Shelf Cases, supra n.11, p.44-45. Appolis, G.,Lemprise maritime de letat cotier, pedone,A. editions, Paris,1981.p.188.

100

United Nations,The Law of the Sea:The Practice of States at the Time of Entry into Force of the UNCLOS,Division for Ocean Affairs and The Law of the Sea,1994,p.216.
16

Team No. 676A archaeological activities within the EEZ since there is no mention of it as a right vested to a particular State.101 However, the practice of Sweden indicates that the burden of proof lies on the flag State to show that such right has been recognised as a general principle of international law, before such flag State may commence archaeological activities in the EEZ.102 Therefore, the applicant may establish its jurisdiction over the wreck under customary international law or alternatively, under the freedom of high seas. 2. The Applicant has the right to prohibit any activity directed at the heritage according to Article 10(2) of the Convention on The Protection of Underwater Cultural Heritage 2001 (CPUCH) Article 10(2) of the CPUCH grants a State Party in whose EEZ or Continental shelf underwater cultural heritage is found, with the power to prohibit or authorize any such activity directed at such heritage to prevent interference with its sovereign rights or jurisdiction.103 Therefore when the vessels were deployed to the area of the wreck, the Applicant is vested the right to object over the deployment. This right has been seen practiced by States like Spain who have restricted excess to shipwreck sites regardless of location.104 Australia on the other hand, through legislation has enacted protected zones extending to 100n.m. around the wreck for highly significant shipwreck in which case entry and access to such sited are restricted; in doing so they may prevent such wrecks from being

101 102

Anastasia Strati, supra n.56, p.271

Current Legal Development:Sweden, 8 International Journal of Marine and Coastal law (1993)524,p.528. Sarah Dromgoole, supra n.51,p.80.

103 104

Mark Staniforth,James Hunter,Emily Jateff, International Approaches to Underwater Cultural Heritage, Maritime Law Issues, Challenges and Implications,Jack W. Harris,Nova Science Publishers 2009, p. 11.
17

Team No. 676A interfered with.105 In support of this, other States have also enacted legislation that has the same effect.106 Therefore, the deployment of the vessels by the respondent amounted to a violation of the jurisdiction of the Applicant since the applicant having jurisdiction over the continental shelf may restrict access to the site of the wreck of Cargast.107

III.

THE APPLICANTS NAVY PURSUIT OF OSCAR DE LUZ INTO THE RESPONDENTS EEZ AND HIS SUBSEQUENT ARREST WERE IN COMPLIANCE WITH INTERNATIONAL LAW

A.

THE PURSUIT OF OSCAR DE LUZ IS VALID UNDER INTERNATIONAL LAW AS IT FULFILS THE REQUIREMENTS OF A LAWFUL HOT PURSUIT UNDER ARTICLE 111 OF THE UNCLOS 1982 Article 111 of UNCLOS 1982 provides 6 requirements of a lawful hot pursuit that

have to be fulfilled. In the M/V Saiga case, such requirements must be proven conjunctively.
108

1.

Competent authorities of the coastal State must have good reason to believe that the ship has violated its laws and regulations pertaining to any of its maritime zones109

105 106

Tullio Scavozi, supra n.57, p.21-22.

The Protection of Wreck Sites Act 1973(UK);The Antiquities Act 1963(Finland);Historic Ship Wreck Act 1976(Australia). Sarah Dromgoole, supra n.51,p.81.

107 108

The M/V Saiga (No 2) (Saint Vincent and the Grenadies v Guinea) (1999) International Tribunal for the Law of the Sea (ITLOS), Case No 2. UNCLOS, supra n.14, Article 111(1)(2).
18

109

Team No. 676A The High Seas Convention and the later UNCLOS110 provide that the right of hot pursuit arises "when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State."111 H. Martens accepts that pursuit is permissible when the conduct of a foreign ship endangers the existence of the littoral state, or breaks the law concerning public order, or for the purpose of protecting the coastal State from damage.112 Although a state may not, with certain exceptions, enforce its laws outside of its maritime zone, the right of hot pursuit may nevertheless continue to enable the territorial jurisdiction to be efficiently exercised. 113 Furthermore, regulations for the prevention of collisions at sea are found in a supplementary document of UNCLOS 1982, namely the Collision Regulations 1972 (COLREG)114, which also includes the steering and sailing rule.115 The rules apply to all vessels upon the high seas and in all waters connected therewith navigable by seagoing vessels.116 This Convention has been ratified by 156 states and UNCLOS 1982 requires foreign ships to comply with these regulations while navigating in the territorial sea, in straits used for international navigation, and in archipelagic waters.117 Among other regulations,

110 111 112

United Nations Conventions on High Seas 1958 Ibid, Article 23(1); UNCLOS, supra n.14, Article 111(1).

Nicholas M Poulantzas. (2002). The Right of Hot Pursuit in International Law. The Hague: Martinus Nijhoff Publishers, pg 130. William Edward Hall. (1st edn, 1880). International Law. United States. Clarendon Press. pg 309. International Regulations for Preventing Collisions at Sea (COLREG) 1972. UNCLOS 1982 Commentary: Supplementary Documents, Vol. 1, pg 775. COLREG, supra n.114, Rule 1(a) UNCLOS Commentary, supra n.115, Vol. 1, pg 775.
19

113

114 115 116 117

Team No. 676A every vessel is required to proceed at a safe speed to avoid collision.118 In the present case, the Applicants Penal Code has specifically prescribed offences committed in its uncontested EEZ and the Malachi Gap which covers negligent operation of a seagoing vessel.119 The ACPS alerts received by the Icarus, the Applicants Navy Fast Response Cutter, noted that the Respondent-flagged yacht, Daedalus which was under the control of Oscar De Luz had caused the Rosehill incident120 and was seen hurriedly leaving the scene by speeding towards the Applicants coast, creating danger for other vessels.121 The yacht failed to comply with the signal to stop given by the Icarus in its contagious zone,122 and in an attempt to get the Icarus to veer away, the Daedalus had steered directly in the direction of the Icarus, which finally resulted in both vessels colliding with each other.123 The Daedalus failed to comply with the regulations as set forth in COLREG124 in the Applicants maritime zone and violated the Applicants laws and regulations pertaining to the operation of a seagoing vessel within its maritime zone.125 2. The pursuit must be commenced when the foreign ship is within the limits of the particular maritime zone126

118 119 120 121 122 123 124 125 126

COLREG, supra n.114, Rule 6. [C] 47 [C] 42 [C] 44 [C] 44 [C] 46 COLREG, supra n.114, Section II (for vessels in sight of one another). [C] 47 UNCLOS, supra n.14, Art 111(1) (4).
20

Team No. 676A The Daedalus was drawing within about 23 nautical miles of the Applicants coastline, which was the Applicants contagious zone127, when the competent authorities of the Applicant set out at full speed to intercept the Daedalus. Professor Gidel opines that a hot pursuit commenced in the contiguous zone is as valid and as reasonable as a hot pursuit commenced in the territorial waters.128 It is a logical and necessary consequence of the Article concerning the contiguous zone and the provision is innocuous, since it would not extend the rights of the coastal state, but it would merely give it some remedy in cases of trespass against its rights, for the protection of which the contiguous zone was established.129 3. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enabled it to be seen or heard by the foreign vessel130 The competent authorities of the Applicant ordered the Daedalus to stop by issuing an order over several different radio frequencies131 commonly used by vessels in the Strait of Malachi when the Daedalus was within the visual range.132 However, the Daedalus failed to comply with the order as she turned away towards the Respondents coast.133 The signal to stop is of considerable significance since a pursuit is considered to have lawfully started only at the moment when a signal to stop is clearly given to the suspected
127 128 129 130 131 132 133

UNCLOS, supra n.14, Art 33(2). Poulantzas, supra n.112, p.159. Yearbook of the International Law Commission (ILC) 1956, Vol I, pg 5. UNCLOS, supra n.14, Art 111(4) ILC, supra n.129, p. 285. [C] 45 [C] 46
21

Team No. 676A vessel.134 That is when the signal has been seen or heard by the pursued vessel.135 In 1956 before the adoption of the text for the High Seas Convention, the ILC did consider the use of signals, via radio, to communicate the order to stop to an offending vessel. However, at that time, the ILC did not permit giving orders via the radio in order to prevent abuse.136 As such order could be given at great distance and transmitted by wireless, the pursued vessel might not be certain that the signals were meant for her.137 In 1956 and to a lesser extent in 1982, the means of communication were more limited and less reliable.138 Radio signals can now be effectively given at some distance and a record of the signal, date, time and distance at which it was sent, and the frequency over which it was sent, can be kept by the coastal State as proof of compliance with this requirement.139 However, in the present case, the wireless signal was given when Daedalus was within the visual range of the Applicants competent authorities.140 Therefore, such abuse did not happen. Of interest, the ILC also noted that same year that; the important point was the fundamental right to give the order to stop and to undertake hot pursuit, not the specific

134 135 136 137

Poulantzas, supra n.112, p. 204. UNCLOS, supra n.14, Art 111(4). ILC, supra n.129, p. 285.

Craig Allen. (1989). Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices, 20 Ocean Development and International Law, pg 319. R.J. Baird. (2009) Arrests in a Cold Climate (Part2) - Shaping hot pursuit through State practice, Antarctic and Southern Ocean Law and Policy Occasional Papers, pg 11. Baird, supra n.138, p.11. [C] 45
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138

139 140

Team No. 676A means by which the right was exercised.141 Hence, the order to stop via radio frequencies issued by the Applicants competent authorities is acceptable as there was no abuse of the right as it was issued only when the vessel was within the visual range.142 The objective of giving the signal to stop is to notify the pursued vessel and the fact that the Daedalus turned to the opposite way after the order to stop143 was issued indicated that the vessel understood that she was being pursued by the Applicants competent authorities. 4. The pursuit must be continuous and uninterrupted144 The act of the competent authorities of the Applicant crossing into the Respondents uncontested EEZ is justified and permitted under Article 111(1) of UNCLOS 1982 as the pursuit can be continued outside its contagious zone as the pursuit has not been interrupted.145 The continuity of hot pursuit establishes exceptionally the lawfulness of the unilateral extension of the coastal states jurisdiction to the high seas.146

5.

The right may be exercised only by military or clearly identifiable government ships or aircraft147 The instrumentalities through which a littoral state may lawfully exercise the right of

141 142 143 144 145 146 147

ILC, supra n.129,p. 54. [C] 45 [C] 46 UNCLOS, supra n.14, Art 111(1). UNCLOS Commentaries, supra n.153, para. 111.9(ii) p. 257. Ibid, para. 97.8(ii), p. 169. UNCLOS, supra n.14, Art 111(5).
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Team No. 676A hot pursuit are limited to certain ships and aircraft having a unique connection to the governmental authority of the state. Under Article 111(5) of the UNCLOS 1982, only warships or military aircraft or any other ship or aircraft authorised by the coastal State and "clearly marked and identifiable as being on government service" may exercise the right of hot pursuit.148 "Warship" means a ship belonging to the armed forces of a State bearing the external marks distinguishing such ships of its nationality, under the command of an officer duly commissioned by the government of the State and whose name appears in the appropriate service list or its equivalent, and manned by a crew which is under regular armed forces discipline.149 In the present case, Icarus, the Applicants Navy Fast Response Cutter, under the command of Captain Haddock150 clearly fits the definition, therefore authorised to exercise the right of hot pursuit. 6. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own state or of a third state151 The hot pursuit ended when the Daedalus sunk in the Respondents uncontested EEZ due to her collision with the Icarus152, before Daedalus managed to enter into its own territorial sea or of a third state. This means that the Applicants hot pursuit is lawful.

148 149 150 151 152

UNCLOS Commentary, supra n.15, para. 111.9(f), p.258. UNCLOS, supra n.14, Art 29. [C] 45 Ibid, Art 111 (5). [C] 46
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Team No. 676A B. THE SUBSEQUENT ARREST OF OSCAR DE LUZ IS LAWFUL UNDER THE INTERNATIONAL LAW Applicant has the right to arrest Oscar De Luz pursuant to the right of hot pursuit.153 The basis of allowing a pursuit is to place the alleged offender in the same position as if he had been arrested at the time of the commission of the offence. 154 The normal procedure of hot pursuit is the arrest of a foreign vessel on the high seas and it being afterwards brought into the territorial and internal waters of the coastal State for adjudication.155 In addition, the prohibition against States other than the flag State from arresting a ship for events on the high seas is not absolute. A State other than the flag State of a ship may, on the high seas, arrest a ship pursuant to the right of hot pursuit as set out in Article 111 of UNCLOS 1982.156 Such provision for high seas is also applicable on the exclusive economic zone.
157

Therefore, it is an exception to the principle of the freedom of the high

158

seas and to the exclusive jurisdiction of the flag state over its vessels on the high seas. Hence, as the hot pursuit by the Applicant is lawful, the arrest of Luz is also lawful. IV.

THE APPLICANT HAD JURISDICTION TO TRY OSCAR DE LUZ FOR THE ROSEHILL INCIDENT, AND IT HAS NO OBLIGATION TO RETURN HIM TO THE RESPONDENT

A. THE APPLICANT HAD THE JURISDICTION TO TRY OSCAR DE LUZ IN

153 154

Commentary, UNCLOS 1982, vol. III, Para 97.8(d), p.169.

Glanville Williams, The Juridical Basis of Hot Pursuit, (1939) 20 British Year book of International Law pg 84. Poulantzas, supra n.112,p. 239. Commentary, UNCLOS, supra n.153, p.169. Ibid Poulantzas, supra n.112, p. 239.
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155 156 157 158

Team No. 676A RESPECT OF ROSEHILL INCIDENT A sovereign state possesses the inherent right to exercise its prescriptive jurisdiction and also the enforcement jurisdiction159. Prescriptive jurisdiction confers power of a state to legislate rules governing its defined territory; save in exceptional circumstances, it may legislate extraterritorial legislation for the purpose of protecting its nationals in a foreign land160. Enforcement jurisdiction would include both executive and judicial power of enforcement. Executive jurisdiction refers to action of the executive organs of a State, for example, to make an arrest; while judicial jurisdiction refers to the power of a States courts to try both civil and criminal cases with a foreign component.161 1. The Applicant has the criminal jurisdiction to try Oscar De Luz based on passive personality principle
a. A States duty to protect its national abroad by virtue of the bond of nationality

The Applicant has the jurisdiction to try and punish a foreigner for a crime committed abroad affecting its nationals. Luz had navigated recklessly speeding towards Excelsior Island, putting it on a collision course with the Rosehill162. The Rosehill attempted to manoeuver away, forcing it to veer towards Excelsior Island and accidently struck the island, causing it
159

Michael Akehurst, Jurisdiction in International Law (1972-73) 46 BYIL, p.145-257 . In The Lotus Case,Lord Finlay stated:

160

The passing of such laws to affect aliens is defended on the ground that they are necessary for the "protection" of the national. Every country has the right and the duty to protect its nationals when out of their own country. If crimes are committed against them when abroad, it may insist on the offender being brought to justice.
161

Dixon, Martin, Textbook on International Law, Blackstone Ltd, London, (4th edn, 2000),

p.134-135.
162

[C] 42

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Team No. 676A to sink. The incident had caused substantial number of deaths and injuries of the Applicants nationals163. The first few Countries which had utilized passive personality principle includes Mexico164, Brazil, Italy and United States of America165, particularly in regards to serious crimes and terrorists activities. Though the controversial nature of passive personality was admitted, but passive personality principle had recognized that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries166. b) The international community universally accepts the assertion of passive personality principle in invoking criminal jurisdiction

Harvard Law School commenced an investigation into international penal law, this was for the purpose of creating a draft international convention on criminal jurisdiction (the Harvard Research Project). The Harvard Research Project noted that countries were utilizing five bases of jurisdiction in criminal cases, which included territoriality, nationality, protective, universality and passive personality167. Since the Harvard Research Project was published, numerous courts and scholars have accepted the bases of jurisdiction, including the passive
163

[C] 43 The Cutting case, Moore, Digest of International Law, Vol 2 (1906) p.228-242. Restatement of Foreign Relations Law of the United States (Third) para 402, Comment g

164

165

and Reporters Note 3, p.240.

166

United States v. Yunis, 681 F. Supp. 896, 901 (D.D.C. 1988), appeal docketed, No. 89-

3208 (D.C. Cir. Nov. 30, 1989).

167

Research in International Law Under the Auspices of the Faculty of the Harvard Law

School, Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 443, 445 (Supp. 1935) Harvard Research Project, p.445.

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Team No. 676A personality principle.168 c. The recent acceptance of the passive personality principle was evidenced in the 1970s by the codification of the principle by certain countries in their penal codes and treaties The publication of Harvard Research Project had noted on rejection of the principle in 1935. Nevertheless, during those times it was already considered as a valid principle under international law because a substantial number of countries had accepted it169. Since the Harvard Research Project was published, many countries started to codify the principle into their respective domestic laws and treaties170, including France171 and the United States172,

168

United States v. Yunis, supra n.166; see Chua Han Mow v. United States, 730 F.2d 1308,

1311 (9th Cir. 1984), cert. denied, 470 U.S. 1031 (1985); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 781 n.7 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985); United States v. Smith, 680 F.2d 255, 257 (1st Cir. 1982), cert. denied, 459 U.S. 1110 (1983); Rivard v. United States, 375 F.2d 882, 885 (5th Cir.), cert. denied, 389 U.S. 884 (1967); W. Bishop, International Law Cases And Materials 440 (1962); A. D'amato, International Law And World Public Order 564 (1980).
169

Berge, The Case of the S.S. "Lotus", 26 MicH. L. REV. 361, 367 (1928). Berge states,

"when such a respectable number of nations make claims of varying degrees of extravagance, it is difficult to say that it is settled that the passive personality principle is invalid under international law.
170

E.g., Spanish law established the passive personality principle in Article 23,4 and 5 of the

Spanish Law of the Judiciary by the Organic Law 1/2009 on 3 November 2009; according to Article 5(1)(c) of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, states are authorized but not obliged to establish criminal jurisdiction on the basis of the passive personality principle.
171

French Penal Code (France), Article 113-6, 113-7.

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Team No. 676A the two countries that had initially opposed the principle. Many countries now have domestic legislation with extraterritorial reach. For example, states as diverse as Singapore173, Indonesia174, Zimbabwe175, Iraq176, Russia177, France178, the United Kingdom179, Mexico180, Canada181, the United States182, Japan183,

172

U.S. Constitution Article I, 8, clause18 ( The Congress shall have Power ... To make all

Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof).
173

Penal Code, (Singapore, cap. 224, 2008 rev. ed.), Section 3; Prevention of Corruption Act,

(Singapore, cap. 241, 1993 rev. ed.), Section 37(1); and the decision in Public Prosecutor v Taw Cheng Kong, [1998] 2 SLR 410, [27]-[43].
174

Penal Code of Indonesia (1982), Article 4. Criminal Law (Codification and Reform) Act (Zimbabwe) (2004), Section 5. Criminal Code 1969 (Iraq), Section 2-4. Criminal Code of the Russian Federation (1996), Article 12. Code P nal [Penal Code (France), Article 113(6)-113(12). Bribery Act 2010 (UK) Chapter 23, Section 12. C digo Penal Federal (Mexico) 1931,Article 4. Criminal Code, RSC 1985, Section 7(4.1). Military Extraterritorial Jurisdiction Act of 2000, 18 USC 3261(2000). Penal Code (Japan) (1907), Article 3-5.

175

176

177

178

179

180

181

182

183

29

Team No. 676A Israel184 and Thailand185 have at least some legislative provisions with extraterritorial effect. These are the implied responses of States, acting on treaty obligations, and also reacting to world events especially after the high-profile terrorist attacks such as the infamous events in the United States in September 2001, and Internet leaks such as those by the organization Wikileaks, have resulted in increased efforts by states to regulate extraterritorial conduct, or seeking to achieve political objectives186. Amaleas Penal Code covers offences committed within the Amalean territory, Malachi Gap and its uncontested EEZ which included property crimes; negligent operation of a seagoing vessel, in relation to the damage to the Rosehill and the Icarus; reckless endangerment of the Rosehill, the Icarus, and the persons on board on both vessels, as well as the various Amalean fishing vessels operating within the Malachi Gap and Amalean waters187. These offences alone is sufficient in granting the Applicant juridiction to try Oscar de Luz, notwithstanding the fact that the murder occurred outside of the scope of enforcement of the Amalean Penal Code. 2. Respondents Penal Code did not provide for prosecution of offences outside its territorial waters Rosehill collision took place in the uncontested exclusive economic zone (EEZ) of the Respondent. It is noted that the neither the Respondents Penal Code and its criminal law

184

Penal Law of Israel (Israel) 1977, Section 13-17. Criminal Code (Thailand) (1956), Section 8. D. Ireland-Piper, 2012 Extraterritorial Criminal Jurisdiction: Does the Long Arm of the

185

186

Law Undermine the Rule of Law?, Melbourne Journal of International Law 13, p.122.
187

[C] 47
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Team No. 676A provide prosecution of offences committed outside of the countrys territorial water, nor was it stated in the facts, that they provided offences committed in its EEZ188. Whereas the Applicants Penal Code covers for offences committed in the Applicants uncontested exclusive economic zone and the Malachi Gap as earlier mentioned. One of the methods of using passive personality jurisdiction is in cases where the state with territoriality jurisdiction does not prescribe prosecution for crimes committed in its territory189. This method is claimed to have avoided diplomatic tension caused by two countries disputing who has jurisdiction over a criminal act190. Thus under this method, the Applicant has the jurisdiction to try Luz because the Respondent does not prescribe for the crimes committed by Luz. As there are 166 State parties to UNCLOS, and by virtue of North Sea Continental Shelf Cases, it is a material evidence of customary international law 191. Eventhough the Applicant had not ratified UNCLOS, the customary law of the sea binds all states. Article 59 of UNCLOS states that, in cases where UNCLOS does not attribute rights or jurisdiction to the coastal State or to other States within the EEZ, and in a conflict between the interests of the coastal State and any other States, the conflict should be resolved on the basis of equity and also any relevant circumstances, including taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole.

188

[C] 49 Korean Criminal Code, Article 6 (1983) (Kor.) Research in International Law Under the Auspices of the Faculty of the Harvard Law

189

190

School, Jurisdiction with Respect to Crime, 29 AM. J. INT'L L. 443, 445 (Supp. 1935).
191

North Sea Continental Shelf Cases (1969) ICJ Rep 3.

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Team No. 676A The Respondent had not enacted any laws to prosecute offences committed in its EEZ and also the Malachi Gap192; when the Respondent claimed that it has exclusive jurisdiction over the alleged offences committed by Luz, it was without a legitimate basis. This is due to the fact that the Respondent cannot exercise its enforcement jurisdiction over non-existence of its prescriptive jurisdiction. By virtue of the above provision, taking account all interests involved to both Applicant and Respondent, it is equitable to infer that the Applicant does have a better claim of jurisdiction due to the fact that the Respondents lack of prescriptive jurisdiction. The principle of legality in criminal law provides that there must be no crime or punishment except in accordance with fixed, predetermined law, or its Latin expression as nullum crimen sine lege, nulla poena sine lege193. Thus, returning Luz to the Respondent will cause injustice to the Appellant and the victims of the collision since Luz would not be punished as his prejudicial actions were not regarded as crimes in the Respondents jurisdiction194. B. THE APPLICANT HAS NO OBLIGATION TO RETURN OSCAR DE LUZ TO THE RESPONDENT 1. The applicant is not obliged to return Oscar De Luz to the Respondent as there was no obligation to return him under any treaty or customary international law in respect of any arising disputes a. Obligation to return an offender only may arise from a concluding treaty between states concerned
192 193

[C] 49 Aly Mokhtar, 2005, Nullum Crimen, Nulla Poena Sine Lege: Aspects and Prospects,

Statute Law Review 26(1), 41-55, Oxford University Press 2005, p.41.
194

[C] 47

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Team No. 676A Under international law, repatriating or extraditing an alleged offender to his or her home country has generally not been looked upon as an absolute duty. Therefore, most countries would enter into bilateral treaties in order to ensure the return of their own alleged national criminals. Both the United States and England do not permit extradition in the absence of a treaty obligation195. Furthermore, the customary international law imposes no duty upon States to surrender the alleged offenders to other states. 196 Thus, the Applicant has no obligation to return or to extradite Luz to the Respondent upon the absence of extradition treaty. b. Malachi Gap Treaty does not provide any provisions as regards to the obligation to return any offenders in cases of any arising disputes There was no other bilateral treaty concluded between the Applicant and the Respondent except the Malachi Gap Treaty197. A person may be extradited or returned in accordance with the present law or a relevant extradition treaty or any special agreement imposing obligation to return, on the request of a requesting State for the purpose of prosecution or enforcement of a sentence in respect of an extraditable offence198. The United Nations Draft Model Law of Extradition, which had been adopted by United Nation of General Assembly in 1990199, provides that inter alia, in the absence of an extradition treaty, extradition may be granted to the requesting State, if the offence for which

195

Bassiouni, M.Ch., International Extradition and World Public Order(1974). Factor v Labubenheimer (1933) 290 US 176; Oppenheims International Law,9th edn, Vol

196

1, Oxford University Press p.950.

197 198 199

[C] 15 Model Law on Extradition (2004), Section 2(1). General Assembly Resolution 45/116 of December 14, 1990.
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Team No. 676A it is requested is punishable under the law of the requesting State by imprisonment or other deprivation of liberty for a maximum period of at least one or two years, or by a more severe penalty200. It is taken from the facts that the Respondent did not provide prosecution for any offences under its law for the crimes committed by Oscar de Luz201. Therefore, Luz may only be repatriated only if the offence for which it is requested is punishable under the law of the Respondent. However, the offences committed by Luz were not even offences under the law of Respondent. Thus, returning Luz to the Respondent will cause injustice to the Applicant and the victims of the collision.

200 201

Model Law on Extradition (2004), Section 3(1)(a). [C] 49

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Team No. 676A

PRAYERS FOR RELIEF

The Applicant respectfully requests this Honourable Court to:

1. Adjudge and declare that the act and omissions of the Respondent in the development of Excelsior Island violated international law, and that the Respondent is responsible to compensate the Applicant for the economic losses caused by the landslide; 2. Adjudge and declare that the Applicant has exclusive ownership of the wreck of the Cargast and all its cargo, thus the Respondents deployment of patrol vessels to the site of the Cargast was unlawful; 3. Adjudge and declare that the Applicants pursuit of Oscar de Luz and his subsequent arrest were lawful; 4. Adjudge and declare that the Applicant has jurisdiction to try and convict Luz for crimes related to the Rosehill incident, and thus has no obligation to return him to the Respondent.

Respectfully submitted, AGENTS FOR AMALEA

35