MEMORIAL FOR RATONA

I. THE ESTABLISHMENT OF DELFINO ARCHIPELAGO MARINE PROTECTED

AREA AND THE MEASURES TAKEN BY RATONA DID NOT VIOLATE
INTERNATIONAL LAW.

A. RATONA HAS LEGITIMATELY EXERCISED ITS SOVEREIGN RIGHTS OVER

DELFINO ARCHIPELAGO BASED ON THE PROVISIONS OF UNCLOS

Article 56 1). In the exclusive economic zone, the coastal State has: (a)
UNLCOS sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or
non-living, of the waters superjacent to the seabed and of the
seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds; (b)
jurisdiction as provided for in the relevant provisions of this
Convention with regard to: (i) the establishment and use of artificial
islands, installations and structures; 44 (ii) marine scientific
research; (iii) the protection and preservation of the marine
environment; (c) other rights and duties provided for in this
Convention.
The MPA over Delfino Archipelago is an exercise of Ratona’s
sovereign right to conserve and manage natural resources, and an
exercise of its jurisdiction in relation to the protection and
preservation of marine environment.

Article 61 (2) The coastal State, taking into account the best scientific evidence
available to it, shall ensure through proper conservation and
management measures that the maintenance of the living
resources in the exclusive economic zone is not endangered by
over-exploitation. As appropriate, the coastal State and competent
 international organizations, whether sub regional, regional or global,
shall cooperate to this end.

The States have the obligation to protect and preserve the marine
environment. The primary obligation of a coastal State in the
UNCLOS is to protect and ensure that its natural resources within
the EEZ are not over-exploited. The coastal State may implement
conservation and management measures to act in accordance with
its obligations.
States shall take, individually or jointly as appropriate, all measures
Article 194 (1)
consistent with this Convention that are necessary to prevent,
UNCLOS
reduce and control pollution of the marine environment from any
source, using for this purpose the best practicable means at their
disposal and in accordance with their capabilities, and they shall
endeavour to harmonize their policies in this connection

Ratona has sovereign rights to take measures that are necessary to

prevent, reduce and control pollution of the marine environment
from any source
Article 194 (5) The measures taken in accordance with this Part shall include
UNCLOS those necessary to protect and preserve rare or fragile ecosystems
as well as the habitat of depleted, threatened or endangered
species and other forms of marine life
Chagos The Court declared that the Marine Protected Area (MPA) in
Arbitration Chagos Archipelago is a measure for the protection and
preservation over the marine environment, which is contrary to
United Kingdom’s proposition that it is merely a fishing measure in
the exercise of its sovereign rights and with respect to the living
resources of its exclusive economic zone. Moreover, the Court
stated that the MPA refers to the environmental concerns that
extend well beyond the management of fisheries.
 B. RATONA HAS EXERCISED ITS RIGHTS AND PERFORMED ITS OBLIGATIONS IN
GOOD FAITH WITH DUE REGARD TO THE RIGHTS AND DUTIES OF OTHER STATES

Ratona’s aim to protect the marine environment is done with due regard to Asteria’s rights and
duties. Even though Asteria failed to raise as issue its claims on their fisherfolks’ rights, Ratona
still issued permits to allow them to fish on their territory. Aside from issuance of permits, Ratona
further negotiated faithfully and made honest efforts to amicably settle with Asteria, such as its
offer of compensation to safeguard the Asterian fishermen and its act of providing an exception
to the MPA Act, by which it prohibited the taking of any natural resource, except for conducting
marine scientific research. All acts done by the Government of Ratona is with due regard to the
circumstances surrounding such act, as well as the nature and extent of impairment or damage
that would possibly result in its exercise of sovereign right.

Article 56 (2) In exercising its rights and performing its duties under this
UNCLOS Convention in the exclusive economic zone, the coastal State
shall have due regard to the rights and duties of other States and
shall act in a manner compatible with the provisions of this
Convention.

Every coastal state has the duty to act in good faith in exercising
its rights and fulfilling its obligations with due regard to the rights
and duties of other states within its EEZ.
Article 279 Parties shall settle any dispute between them concerning the
UNCLOS interpretation or application of this Convention by peaceful
means in accordance with Article 2, paragraph 3, of the Charter
of the United Nations and, to this end, shall seek a solution by
the means indicated in Article 33, paragraph 1, of the Charter.

A conduct of good faith is implicit in the duty of the coastal state

to negotiate with other states concerning the latter’s rights and
obligations, and the absence thereof in any negotiation is invalid.
Chagos Arbitration The ordinary meaning of “due regard” calls for the United
Kingdom to have such regard for the rights of Mauritius as is
called for by the circumstances and by the nature of those rights.
The Tribunal declines to find in this formulation any universal
rule of conduct.

the Court ruled that UK’s imposition of a unilateral “MPA” which

effectively extinguishes Mauritius’s traditional fishing rights in the
territorial sea surrounding the Chagos Archipelago will not
constitute an abuse of its rights if UK must have either: (a)
secured the agreement of Mauritius; or alternatively (b) at least
entered into genuine, serious and good faith efforts to reach an
agreement with Mauritius as to how those rights may continue to
be exercised

Ratona and Asteria have entered into negotiations in good

faith concerning the Asteria’s alleged fishing right over Delfino
Archipelago to arrive at an acceptable compromise and to resolve
their respective interests. Ratona’s continuous offer and efforts to
enter into an amicable settlement with Asteria can be seen
through the negotiations between the states, however, both failed
to come up with an agreement. A state is free to negotiate with
other states and is not liable for failure to reach an agreement,
provided it is done in good faith. Thus, all the efforts of Ratona to
negotiate with Asteria shows that Ratona’s unilateral declaration
of MPA does not constitute an abuse of Asteria’s rights because
it entered into genuine, serious and good faith efforts to reach an
agreement with Asteria as to how those rights may continue to be
exercised. Consequently, Ratona has no liability with Asteria on
account of the failed negotiations. On the contrary, despite of the
failed negotiations, Ratona’s earnest and sincere efforts to settle
the alleged fishing rights of Asteria can be appreciated through its
proposal of a possible compensation to safeguard such alleged
rights of Asteria which shows “due regard of the coastal state” to
 the rights of other States. Moreover, Ratona’s willingness to
resolve the dispute before the International Court of Justice (ICJ)
exhibits good faith in settling the concerned fishing rights of
Asteria. Therefore, all of these acts of Ratona is in accordance
with International Law.

Convention on Each Contracting Party, as far as possible and as appropriate,

Biological shall: xxx c) Promote, on the basis of reciprocity, notification,
Diversity, art.14 (1) exchange of information and consultation on activities under
their jurisdiction or control which are likely to significantly affect
adversely the biological diversity of other States or areas beyond
the limits of national jurisdiction, by encouraging the conclusion
of bilateral, regional or multilateral arrangements, as appropriate

On the basis of reciprocity, states are encouraged to enter into

bilateral, regional or multilateral arrangements on activities under
its jurisdiction which greatly affects the biological diversity of
other States or areas beyond the limits of national jurisdiction
Lac Lanoux One of the aspects of good faith appreciated by the arbitration
Arbitration (1957) tribunal is the willingness to compromise. In this case, the
tribunal described the fundamental process of negotiation in
good faith as one whose purpose is placed in equilibrium with
the interests in the conflict. Furthermore, the Tribunal is of the
opinion that, according to the rules of good faith, the upstream
State is under the obligation to take into consideration the
various interests involved, to seek to give them every satisfaction
compatible with the pursuit of its own interests, and to show that
in this regard it is genuinely concerned to reconcile the interests
of the other riparian State with its own.
Flexibility, willingness to compromise, and a temporary
suspension of parties’ rights during negotiation were aspects of
good faith valued by the arbitration tribunal. In this case, the
fundamental process of negotiation in good faith is described by
the tribunal as one whose purpose is placed in equilibrium with
 the interests in the conflict. The State has, by rules of good faith,
the obligation to take into consideration the different interests in
attendance, to look to them to give all satisfaction compatible
with the pursuit of their own interests and to show that it has, as
its subject, a real care to reconcile the interests of the other
riparian owner with its own interests.
Arbitration The tribunal identified good faith as part of general principles to
between Kuwait which parties, when embarking on a negotiation, are bound to
and the American comply when carrying out an obligation to negotiate, namely
Independent Oil “good faith as properly to be understood: sustained upkeep of
Company negotiations over a period appropriate to the circumstances,
awareness of the interests of the other party, and a persevering
quest for an acceptable compromise”
Case Concerning The good faith of parties to a treaty, to apply its terms reasonably
the Gabcikovo-
and in such a way that its purpose can be realized, was a central
Nagymaros Project
concern of the ICJ in the Case Concerning the Gabcikovo-
(Hungary/Slovakia)
(1997 General List Nagymaros Project. This case concerned, among other things, a
No 92
treaty between Hungary and Slovakia on a joint project of locks

and dams, and protracted disputes between the two countries

after unilateral termination of this treaty by Hungary. The Court

invoked the precepts of flexibility and comprehensiveness that it

had emphasized in the North Sea Continental Cases, in its

directives to the parties: “It is for the Parties themselves to find an

agreed solution that takes into account the objectives of the

Treaty, which must be pursued in a joint and integrated way, as

well as the norms of international environmental law.”

 C. RATONA LAWFULLY EXERCISED ITS RIGHT TO INSPECT FOREIGN VESSELS
WITHIN ITS EEZ.

Ratona in the exercise of its sovereign rights to conserve and manage the living resources
in its EEZ may take such measures including inspection as may be necessary to ensure
compliance with the MPA Act. Thus, the act of Ratonan Coast Guard in inspecting the Asterian
fishing vessel within the Ratonan EEZ around Delfino Archipelago in suspected violation of the
MPA Act constitutes exercise of legitimate sovereign rights by Ratona, and is not illegal, contrary
to Asteria’s allegation. The mere presence of a fishing vessel within the EEZ of Ratona is a strong
indication of violation of MPA Act which prohibits fishing within the EEZ, there is a probable cause
for Ratona to take such precautionary measures. Moreover, the inspection conducted by Ratona
is commensurate to ensure compliance with the MPA Act. It should be noted that Ratonan
authorities did not arrest and impose any penalty on the Asterian vessel when the latter was
suspected in violating the MPA Act, therefore Ratona did not take such measures in excess of its
sovereign rights.

Article73 (1) The coastal State may, in the exercise of its sovereign rights to
explore, exploit, conserve and manage the living resources in the
exclusive economic zone, take such measures, including
boarding, inspection, arrest and judicial proceedings, as may be
necessary to ensure compliance with the laws and regulations
adopted by it in conformity with this Convention.

Ratona has sovereign rights to explore and exploit living resources;

consequently it also has certain obligations with respect to the
management of conservation of the living resources in its EEZ. It
has jurisdiction to sanction violations of laws and regulations
concerning living resources in its exclusive economic zone.

The M/V “Virginia The Tribunal has already stated that the enforcement measures
G” Case taken have to be “necessary” to ensure compliance with the laws
(Panama/Guinea- and regulations adopted by the coastal State in conformity with the
Bissau) Case No. Convention. In the view of the Tribunal the principle of
 19, International reasonableness applies generally to enforcement measures under
Tribunal for the article 73 of the Convention. It takes the position that in applying
Law of the Sea enforcement measures due regard has to be paid to the particular
(ITLOS) circumstances of the case and the gravity of the violation.

II. RATONA’S SOVEREIGN RIGHTS PREVAILS OVER ASTERIA’S FISHING

RIGHTS WITHIN THE EEZ OF THE FORMER.

A. SOVEREIGN RIGHTS OF COASTAL STATES IN EEZ WEIGHS SUPERIOR THAN

THE TRADITIONAL FISHING RIGHTS.
Article 55 The exclusive economic zone is an area beyond and adjacent to
UNCLOS the territorial sea, subject to the specific legal regime established in
this Part, under which the rights and jurisdiction of the coastal State
and the rights and freedoms of other States are governed by the
relevant provisions of this Convention.

The EEZ is not under the sovereignty of the coastal State but a
specific legal regime whereby coastal States have sovereign rights
and jurisdiction over the natural resources in the body of water,
seabed and subsoil within their EEZ
Article 62(2) The coastal State shall determine its capacity to harvest the living
UNCLOS resources of the exclusive economic zone. Where the coastal State
does not have the capacity to harvest the entire allowable catch, it
shall, through agreements or other arrangements and pursuant to
the terms, conditions, laws and regulations referred to in paragraph
4, give other States access to the surplus of the allowable catch,
having particular regard to the provisions of articles 69 and 70,
especially in relation to the developing States mentioned therein.

Accordingly, a coastal State’s sovereign rights over all living

resources within their EEZ has completely superseded the
traditional fishing rights of other States. The only consideration that
 may be given to other states, provided by UNCLOS, is to grant
them access to the surplus of the allowable catch of the living
resources in the EEZ of a coastal State.
Article 61(1) The coastal State shall determine the allowable catch of the living
UNCLOS resources in its exclusive economic zone.
Article 62 (3)
UNCLOS In giving access to other States to its exclusive economic zone
under this article, the coastal State shall take into account all
relevant factors, including, inter alia, the significance of the living
resources of the area to the economy of the coastal State
concerned and its other national interests, the provisions of articles
69 and 70, the requirements of developing States in the subregion
or region in harvesting part of the surplus and the need to minimize
economic dislocation in States whose nationals have habitually
fished in the zone or which have made substantial efforts in
research and identification of stocks.

However, coastal state is solely responsible for determining its own

allowable catch and surplus, if any. Such access is dependent on
the coastal State’s consent and discretion whether to grant or to
deny the same to other States taking into account all relevant
factors such as the significance of the living resources of the area to
the economy of the coastal State concerned and its other national
interests,
Article 3 States have, in accordance with the Charter of the United Nations
Convention on and the principles of International Law, the sovereign right to exploit
Biological their own resources pursuant to their own environmental policies,
Diversity. and the responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other States
or of areas beyond the limits of national jurisdiction

States have the sovereign right to exploit their natural resources

pursuant to their environmental policies and their duty to protect and
preserve the marine environment.
Article 58 (3) In exercising their rights and performing their duties under this
UNCLOS Convention in the exclusive economic zone, States shall have due
regard to the rights and duties of the coastal State and shall comply
with the laws and regulations adopted by the coastal State in
accordance with the provisions of this Convention and other rules of
International Law in so far as they are not incompatible with this
Part.
Other states shall have due regard to the rights and duties of the
coastal State and shall comply with the laws and regulations
adopted by the coastal State.
Article 64(2) Nationals of other States fishing in the exclusive economic zone
UNCLOS shall comply with the conservation measures and with the other
terms and conditions established in the laws and regulations of the
coastal State.

It is within the duty of Nationals of other States fishing in the exclusive

economic zone to comply with the conservation measures and with
the other terms and conditions established in the laws and
regulations of the coastal State.

South China Traditional fishing rights are not absolute or impervious to regulation,
Sea Arbitration thus, must necessarily be regulated to conserve the environment and
(Philippines v. prevent it from over-exploitation.
China), PCA
No. 2013-19,
Award of 12
July 2016,
[Philippines v.
China].
Case However, traditional fishing rights should be taken into consideration
concerning in exceptional circumstances as laid down in the Gulf of Maine case,
delimitation of which provides for catastrophic social and economic repercussions if
the Maritime fisheries rights are ignored.
 Boundary in the
Gulf of Maine
Area,
(Canada/United
States of
America), I.C.J
Rep. 246,
Award of 12
October 1984,
para 237.

Barbados v. The Court declared that “Barbados has not succeeded in

Trinidad & demonstrating that the results of past or continuing lack of access by
Tobago, Award Barbados fisherfolk to the waters in issue will be catastrophic. The
of the Arbitral Tribunal accepts that communities in Barbados are heavily
Tribunal (2006) dependent upon fishing, and that the flyingfish fishery is central to
45 ILM, 798, that dependence. There may be injury to Barbados nationals but
para 15 such injury does not equate with catastrophe. Nor is injury in the
course of international economic relations treated as sufficient legal
ground for border adjustment.”

However, the case at bar does not fall within the exceptional
circumstance as reiterated in Gulf of Maine case in order for Asteria’s
traditional fishing rights’ to be recognized by Ratona because there
is no catastrophic social and economic repercussions if the fishing
rights of Asterian fisherfolk are ignored.

B. RATONA AND ASTERIA AS BOTH PARTIES IN THE UNLCOS

Vienna "PACTA SUNT SERVANDA" Every treaty in force is binding upon
Convention on the parties to it and must be performed by them in good faith.
the Law of It is undisputed that both Ratona and Asteria are original parties to
Treaties, art.26. the UNCLOS. Under International Law, once a state ratified a treaty,
the state concerned is bound by the rules laid down in that treaty.
 South China The following propositions fall within the basic rule of pacta sunt
Sea Arbitration servanda:
1. To adjudge and declare that China shall respect the rights
and freedoms of the Philippines under the Convention.
2. To adjudge and declare that China shall comply with its
duties under the Convention, including those relevant to the
protection and preservation of the marine environment in the
South China Sea.
3. To adjudge and declare that China shall exercise its rights
and freedoms in the South China Sea with due regard to
those of the Philippines under the Convention.

In essence, what the Philippines is requesting is a declaration from

the Tribunal that China shall do what it is already obliged by the
Convention to do. Further, under Article 300 of the UNCLOS, States
Parties shall fulfil in good faith the obligations assumed under this
Convention and shall exercise the rights, jurisdiction and freedoms
recognized in this Convention in a manner which would not constitute
an abuse of right.

Thus, both Parties are obliged to comply with the Convention,

including its provisions regarding the resolution of disputes, and to
respect the rights and freedoms of other States under the
Convention.

C. RATONA IS NOT BOUND TO RECOGNIZE THE TRADITIONAL FISHING RIGHTS OF

ASTERIA AS THERE EXIST NO BILATERAL AGREEMENT BETWEEN THEM.

Ratona in 1995 was concerned only about the delimitation of boundaries in the Sirena
sea, without reference as to the issue of fishing rights Asterian fisherfolk. Since
ratification of this agreement, Asteria have not raised their concerns to negotiate the
fishing operations of the Asterian fisherfolk in the EEZ surrounding the Delfino
 Archipelago until the proposal of MPA. In conclusion, there was no bilateral agreement
providing for Asteria’s fishing rights, thus, Ratona is not bound to recognize Asteria’s
claim on traditional fishing rights.

Article 74 (1) The delimitation of the exclusive economic zone between States with
UNCLOS opposite or adjacent coasts shall be effected by agreement on the
basis of International Law, as referred to in Article 38 of the Statute
of the International Court of Justice, in order to achieve an equitable
solution

As an incident of the sovereign rights of a coastal state, Ratona is

not bound to recognize the traditional fishing rights of Asteria, unless
both parties will enter into bilateral agreement. The delimitation of the
exclusive economic zone between States with opposite or adjacent
coasts shall be effected by agreement on the basis of International
Law. In most cases, bilateral agreement as to delimitation of maritime
boundaries contains provisions regarding traditional fishing rights of
another state, which shows recognition by the coastal state.

Fisheries It was further held in Icelandic Fisheries Jurisdiction case that where
Jurisdiction historic fishing rights of a third state continues to exist within the EEZ
Case (United of a coastal state, such rights were usually recognized through
Kingdom v. bilateral agreements between the states concerned.
Iceland), Merits,
Judgment,
(1974) ICJ
Reports 3

D. NO EXPRESS OBLIGATION FOR COASTAL STATES TO RECOGNIZE TRADITIONAL

FISHING RIGHTS CONTRARY TO ARCHIPELAGIC STARTES PURSUANT TO
UNCLOS.
Article 51 (1) Without prejudice to article 49, an archipelagic State shall respect
UNCLOS existing agreements with other States and shall recognize
traditional fishing rights and other legitimate activities of the
 immediately adjacent neighbouring States in certain areas falling
within archipelagic waters. The terms and conditions for the
exercise of such rights and activities, including the nature, the
extent and the areas to which they apply, shall, at the request of
any of the States concerned, be regulated by bilateral agreements
between them. Such rights shall not be transferred to or shared with
third States or their nationals.

It has been generally emphasized that the EEZ regime bars States
from making claims to traditional fishing rights in the EEZ of other
States, thereby maintaining the argument that no obligation is
expressly provided for under UNCLOS that Coastal States have to
recognize historic rights unlike in archipelagic states. The latter
shall respect the agreement with other states and shall recognize
traditional fishing rights of bordering state within any part of the
archipelagic waters.
Philippines v. In the court emphasized the different treatments of traditional fishing
China rights with regard to the archipelagic waters, exclusive economic
zone and territorial sea.
Meanwhile, the requirements and conditions of the rights shall be
based upon the related states and regulated within the bilateral
agreement.

Article 62 (2) For the coastal states, traditional fishing rights has not been
UNCLOS expressly reserved in the provisions under EEZ. However, a
‘consideration’ for traditional fishing in the EEZ is provided under
Article 62 of UNCLOS, although the terms ‘traditional’ and ‘historic’
are not used.
Ratona is solely responsible for determining its own total allowable
catch, and therefore the surplus, if any. The provision only requires
for Ratona to ‘consider’. Fishing practices of other States within EEZ
are merely considerations to be taken into account by Ratona as a
Coastal state, and thus it is within its discretion. The concept of
 historic rights remains relevant only to the extent that it is among the
factors to be taken into account in giving access to surplus fish.

III. ASTERIA DOES NOT HAVE ANY LEGAL CAPACITY TO ASK THE COURT TO
ABOLISH THE MPA

United Nations The Organization and its Members, in pursuit of the Purposes stated
Charter, art.2 in Article 1, shall act in accordance with the following Principles. 1.
(1). The Organization is based on the principle of the sovereign equality
of all its Members. xxx

A state has fundamental rights and one of them is

equality with all other states. This right is inherent in the concept of a
state as a subject of International Law and is generally
acknowledged by established state practice. The principle of
sovereign equality is reflected in the Charter of the United Nations
and is recognized by the international community. It provides that
"organization, based on the principle of equality, has sovereignty of
its members.”
United Nations States Parties shall carry out their obligations under this Convention
Convention in a manner consistent with the principles of sovereign equality and
against territorial integrity of States and that of non-intervention in the
Corruption, domestic affairs of other States.
art.4 (1)
In like manner, this principle is embodied in United Nations
Convention against Corruption.

Bandung The principle of sovereign equality of states is one of the five principles
Conference of peaceful coexistence that was laid-down in Asian-African
(April 18-24, Conference 1955 in Indonesia with all third world governments and
1955) was approved by all members. The principle of sovereign equality
simply means that all states have equal sovereign right and this right
 must be respected by governments regardless of differences in
economic, social, political, demographic, geographic, etc.

The United The principle of sovereign equality of States was also reflected at the
Nations San Francisco conference. The conference stated that "the principle
Conference on of the sovereign equality of states is understood in the following
International elements: (1) Governments are legally equal;(2) Each State benefit
Organization from its inherent rights, according to its sovereign; and (3) The legal
(25 April 1945 character of the government is respected, as well as the territorial
to 26 June integrity and political independence of it, is respected.”
1945),
[UNCIO] Thus, as a whole, Ratona has an equal sovereignty as to Asteria.
The Republic In a related case, the case of Republic of Indonesia v. Vinzon,
of Indonesia, this Court enunciated that in cases involving foreign states; the basis
his Excellency of sovereign immunity is the maxim par in parem non habet imperium.
Ambassador Founded on sovereign equality, a state cannot assert its jurisdiction
Soeratmin, and over another. To do so otherwise would "unduly vex the peace of
Minister nations." It supports the idea and the principle of sovereign equality
Counsellor that a state has no right to assail the laws of another state.
Azhari Kasim,
vs. James
Vinzon, doing
business under
the name and
style of Vinzon
Trade and
Services, G.R.
No.
154705, June
26, 2003.