Respondent's Memorial (Draft)

735R IN THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE, THE HAGUE, NETHERLANDS THE CASE CONCERNING CERTAIN ACTIVITIES IN THE MALACHI GAP

STATE OF AMALEA (APPLICANT) v REPUBLIC OF RITANIA (RESPONDENT)

MEMORIAL FOR THE RESPONDENT

2014 Philip C Jessup International Law Moot Court Competition

TABLE OF CONTENTS

ii

INDEX OF AUTHORITIES

iii

STATEMENT OF JURISDICTION

Pursuant to the Joint Notification and Compromis concluded on 17 September 2013 at The Hague, The Netherlands, between the State of Amalea and the Republic of Ritania (collectively “the Parties”), and in accordance with Article 40(1) of the Statute of the International Court of Justice, the Parties hereby submit to this Court its claims concerning Certain Activities within the Malachi Gap.

This Court is requested to decide the Case on the basis of the rules and principles of international law, including any applicable treaties. In accordance with Article 36(1) of the Court‟s Statute, the Parties shall accept any Judgment of the Court as final and binding upon them and shall execute it in its entirety and in good faith.

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QUESTIONS PRESENTED

The Republic of Ritania respectfully asks this Court: 1.

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

2.

Whether Milo Bellezza‟s salvage of the Cargast is unlawful, and the cargo and artifacts recovered from the wreck properly belong to Ritania, which has the right to protect them.

3.

Whether the Amalean Navy‟s pursuit of Oscar de Luz into Ritania‟s EEZ, and his subsequent arrest, were illegal.

4.

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

v

STATEMENT OF FACTS

The Republic of Ritania is a developed and industrialized peninsular state that lies adjacent to the State of Amalea. Both states are separated by the Strait of Malachi.

On April 1983, Ritania signed and ratified the 1982 Convention on the Law of the Sea (UNCLOS), and claimed a 200 nautical mile exclusive economic zone (EEZ). In the same year, Ritania declared that where there are overlapping claims to the EEZ, these matters shall be determined by Ritania and the other state in accordance with international law.

Amalea and Ritania became State Parties to the Malachi Gap treaty dated March 30, 1992. The Treaty provides that the objective of the parties to the Treaty was 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. In the treaty, areas previously claimed by each state as its Exclusive Economic Zone outside of the Malachi Gap were stipulated to constitute that state‟s “uncontested EEZ.” The Treaty allowed Amalea to protect vital fisheries resources within the Strait of Malachi while allowing Ritania to develop subsea resources such as the Erebus gas field. On late 2006, Ritanian billionaire Esmeralda Kali announced her intention to finance the construction of Excelsior Island (artificial island) on the Sirius Plateau, just outside the Malachi Gap, entirely within Ritania‟s uncontested EEZ. Upon learning of the proposal to build Excelsior Island.

Amalea‟s Foreign Minister

summoned the Ritanian Ambassador and they had ameetingthe Amalean Foreign Minister made

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known their objections to the said project.The following day, the Ritanian Ambassador responded stating that Excelsior Island itself will be built entirely outside of the Malachi Gap and within Ritania‟s uncontested EEZ. Therefore, Amalea‟s consent for the project is not required. Ritania will take appropriate measures to ensure that such activities are carried out in full compliance with Ritanian law, as well as with Ritania‟s obligations under the Malachi Gap Treaty and any applicable norms of international law. As part of the Ritanian licensing process, Excelsior Island Gas & Power Limited (EIGP) was required to conduct an environmental impact assessment (EIA) for the Excelsior Island project. Under Ritanian law, an EIA for a proposed marine development project is reviewed by Ritania‟s Department of Resource Management and any other government agency claiming a specific interest. Amalea maintained that Ritania had no right to engage in or to allow dredging within the Malachi Gap while Ritania maintained that its regulatory processes complied with international law. In early 2008, EIGP submitted an EIA for the Excelsior Island project. Having received approval from the Ritanian government of its EIA and its other project information, EIGP was granted a permit to construct Excelsior Island on 1 August 2009. Amalea objected when it heard that the project was to push through and sought an order from the International Court of Justice, requiring Ritania to halt the project. The Court, however, concluded by eight votes to seven that the circumstances are not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. On January 2010, a Ritanian oil and gas exploration vessel conducting sonar mapping operations in the Malachi Gap and discovered the wreck of the schooner Cargast, whose captain

vii

was Baldric Verdigris. Ritanian history books describe Baldric Verdigris as a ruthless Amalean pirate, responsible for the plunder and destruction of the Ritanian capital of Helios during 4 March 1510. Verdigris and his crew laid siege to Helios and stole most of the town‟s prized religious and cultural icons as well as other precious objects. Among the objects stolen was the Sacred Helian Coronet, which was placed on the heads of Ritanian monarchs. Over the centuries the Coronet has acquired mythical importance in Ritanian iconography, and is even reflected in the flag of Ritania to the present day. Historians are unanimous in their assumption that the cargo that went down with the Cargast, lay somewhere in the depths of the Strait of Malachi, contained not only the Coronet but also a vast array of precious artifacts obtained during the Sack of Helios. Amalean Prime Minister Beesley responded to the discovery, claiming the Cargast and all of the cargo that might be on board. The President of Ritania immediately responded with a feeling of deep offense that Amalea, or any other country, would claim ownership or control of its nation‟s birthright. During the commemoration of the 500th anniversary of “the Sack of Helios”, Ritanian Minister of Cultural Affairs Gloria de Sousa declared that if later investigations revealed the presence of the Sacred Helian Coronet on board the ship, it would be the realization of a dream of generations of their ancestors, and will welcome home this revered symbol of its nation. She also noted that the media had in recent days reported the arrival at Amalea‟s main airport of a number of internationally known divers experienced in recovering treasure lost at sea, and stated that Ritania will not tolerate the presence of looters – of any nationality – anywhere near the Cargast.

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On January 2011, the Amalean Cultural Affairs Ministry announced that it had acquired five objects recovered from the wreck by Milo Bellezza, a well-known deep sea treasure hunter of Swiss nationality. These included an item that appeared to be the Sacred Helian Coronet. Amaleacontracted with Bellezza to explore the wreck and recover items therefrom. The Ritanian government, through its embassy in Amalea, strongly objected to what it called “the systematic looting of the wreck of the Cargast,” Ritania also demanded that Amalea immediately hand over the items plundered by the modern-day pirate Milo Bellezza, who proposes to consummate the theft of Ritania‟s birthright. On June 2011, the Amalean Ministry granted Milo Bellezza, acting as agent for and on behalf of the Republic of Amalea, the status of “salvor of the wreck of the Cargast.” Ritanian President Lipman immediately issued a public statement, denouncing Amalea‟s granting of a license to Bellezza as a violation of the letter and spirit of the Malachi Gap Treaty as well as customary international law and should be declared null and void. Ritania also seek the return of the Sacred Coronet and the items already in Amalea‟s possession. On February 13, 2011, the Rosehill, an Amalean-registered cruise ship, departed from Amalea and headed towards Ritania. Helios was to be the Rosehill‟s first port of call. Since Excelsior Island‟s hydroelectric plant was completed and final steps were being taken to develop the wind farm, the customers obtained permission to navigate the Rosehill close to the Island. As the Rosehill approached Excelsior Island, the Daedalus, a stolen Ritanian-flagged yacht under the control of Oscar de Luz, a Ritanian citizen, was speeding towards the Island. The captain of the Rosehill, saw that his ship was on a collision course with the fast-approaching Daedalus, and tried to maneuver the Rosehill away. He was forced to veer toward the Island and to accelerate in order to avoid an imminent collision and struck the Island with significant force.

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The impact caused ruptures to three oxy-fuel storage tanks on the island, which caused explosions that killed five of the Ritanian nationals working on Excelsior Island. Luz steered the Daedalus away from the Island to the northwest and drew within 23 nautical miles of Amalea‟s coastline. It was picked up on radar by the Icarus, an Amalean Navy Fast Response Cutter, under the command of Captain Walter Haddock. Haddock set out at full speed to intercept the Daedalus. When the Icarus was within visual range, Haddock ordered the Daedalus to stop. Instead, Luz turned the Daedalus and sped towards Ritania. Haddock pursued the Daedalus, crossing into Ritania‟s uncontested EEZ. In an attempt to get the Icarus to veer away, Luz steered the Daedalus straight towards the Icarus. Captain Haddock kept his vessel on course and the ships collided at high speed. The Daedalus began to sink rapidly. Luz was captured by Haddock‟s crew where they declared him under arrest, then brought him on board the Icarus. Amalea‟s Attorney General concluded that her country‟s courts had jurisdiction to try Luz for violations of Amalean criminal laws. Ritania immediately filed a formal protest with the Amalean Embassy, claiming that the arrest and prosecution of Luz, a Ritanian citizen, were illegal under international law and argued that it had exclusive jurisdiction over the alleged offenses, and demanded that Luz immediately be returned to Ritania for investigation. Amalea declined to repatriate Luz and proceeded to put him on trial. After several months of unsuccessful negotiations, the parties decided to refer their differences to the International Court of Justice, and for this purpose have agreed to the terms of a Special Agreement. In addition, Amalea has agreed to place all objects removed from the Cargast, and any others that might be brought to the surface during the pendency of this case by Milo Bellezza, in escrow held by the Ministry of Culture of the Government of Canada.

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SUMMARY OF PLEADINGS

I.

Ritania violated the terms of the Malachi Gap Treaty in allowing the Excelsior Island and Gas Power, Limited (EIGP) to conduct dredging within the Malachi Gap. Article 12 of the said treaty states that neither party shall exercise its rights under the agreement to the prejudice of the interests of the other. Since the dredging adversely affected the fate of the Dorian Wrasse population to which Amalea was economically dependent, such an activity constituted a breach of the Malachi Gap Treaty. Ritania also failed to perform its obligation under customary international environmental law to conduct a comprehensive Environmental Impact Assessment (EIA) which would include the impact of the dredging towards the fish population within the Malachi Gap. Having breached an international obligation, Ritania committed an internationally wrongful act and therefore must take responsibility by compensation as provided for in the Articles on the Responsibility of States for Internationally Wrongful Acts.

II.

Amalea has a better right to the Cargast and all its contents under the law of finds and the law on salvage, to the extent allowed by the UNESCO Convention on the Protection of Underwater Cultural Heritage. Under the same convention, the subsequent salvage by Milo Belleza of the Cargast was also lawful and allowable by virtue of the exceptions mentioned in the Convention‟s Article 4.

III.

Amalea was entitled to pursue Oscar de Luz, invoking the right to hot pursuit under Article 23 of the 1958 Geneva Conventions on the High Seas. Since there was a valid exercise by Amalea of the right of hot pursuit, the subsequent arrest of Oscar de Luz was also clothed with validity since it was incidental to the lawful hot pursuit.

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IV.

Amalea had jurisdiction to try and convict Ritanian citizen Oscar de Luz because the territoriality principle applies to enable Amalea to exercise jurisdiction to try and convict Oscar de Luz for all the victims aboard the Rosehill. Another principle at work, the passive personality principle justifies the exercise of jurisdiction by Amalea over Oscar de Luz. Ritania cannot avail of the flag-State jurisdiction over the Ritanian-flagged Daedalus to justify their claim because Oscar de Luz was not the master thereof. Lastly, Ritania cannot claim jurisdiction based on the existence of a safety zone around Excelsior Island and Amalea has no obligation to return Oscar de Luz to Ritania because extradition does not apply to the case at hand.

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PLEADINGS

Submission 1 (Respondent)

RITANIA‟S CONDUCT WITH RESPECT TO THE EXCELSIOR ISLAND PROJECT COMPLIED IN ALL RESPECTS WITH ITS OBLIGATIONS UNDER INTERNATIONAL LAW AND THE TERMS OF THE MALACHI GAP TREATY, AND RITANIA HAS NO OBLIGATION TO COMPENSATE AMALEA FOR ANY LOSS OR DAMAGE ALLEGEDLY CAUSED BY THE 2009 LANDSLIDE.

Ritania‟s conduct with respect to the Excelsior Island Project complied in all respects with its

I.

obligations under international law and the terms of the Malachi Gap Treaty.

A. Ritania’s conduct with respect to the Excelsior Island project complied in all respects with its obligations under international law, specifically under the provisions of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the Environmental Law Guidelines And Principles On Shared Natural

Resources,

and

the

customary

law

requirement

of

the

Environmental Impact Assessment (EIA).

Ritania is a state party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), having signed and ratified the said Convention in 1983.1 With reference to

1

Paragraph 10, Compromis.

1

UNCLOS and the international law principle of state sovereignty,2 the coastal state, in this case Ritania has jurisdiction with regard to the establishment and use of artificial islands, installations and structures within its Exclusive Economic Zone (EEZ)3 and on its continental shelf.4 Excelsior Island, the donut-shaped artificial island, is located entirely within Ritania‟s uncontested EEZ and is made of oceanic sand and rock dredged from the Malachi Gap.5 As to the dredging of oceanic sand and rocks, Ritania has sovereign rights over the continental shelf for the purpose of exploring and exploiting its natural resources which include minerals and other non-living resources of the seabed and subsoil.6 Furthermore, as part of Ritania‟s licensing process an Environmental Impact Assessment (EIA) was conducted and then reviewed by Ritania‟s Department of Resource Management and other government agencies claiming specific interests.7 In the case of Pulp Mills on the River Uruguay (Argentina v. Uruguay), the Court observed that the general international law does not specify the scope and content of an EIA. The Court also held that it is for each State to determine in its domestic legislation or in the authorization process for the project, the specific content of the environmental impact assessment required in each case, having regard to the nature and

2

Principle 2 of the 1992 Rio Declaration on Environment and Development states that “States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, 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”. 3

Art. 56 1b UNCLOS.

4

Art. 80, UNCLOS.

5

Paragraph 20, Compromis.

6

Art. 77 (1) and (4), UNCLOS.

7

Paragraph 23, Compromis.

2

magnitude of the proposed development and its likely adverse impact on the environment as well as to the need to exercise due diligence in conducting such an assessment. The Court also considers that an EIA must be conducted prior to the implementation of a project. 8 Thus, Ritania, subject to its domestic legislation and authorization process, has complied with the customary law requirement of conducting an EIA.

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

Excelsior Island is located outside the Malachi Gap, entirely within Ritania‟s uncontested EEZ.9 While EIGP requires dredging within the Malachi Gap area, the Malachi Gap Treaty has expressly allowed Ritania exploration, exploitation and protection of the natural resources of the seabed and subsoil10 and development of subsea resources such as the Erebus gas field.11 Having the EIA approved, EIGP was granted a permit to construct Excelsior Island.12 Such permit to dredge the Malachi Gap was also granted in full compliance with the respective Ritanian after consultation with all competent government authorities.13

8

Pulp Mills on the River Uruguay (Argentina v. Uruguay),Judgment, I.C.J. Reports 2010, p. 83, para. 205.

9

Paragraph 20, Compromis.

10

Art 12(b), Malachi Gap Treaty.

11

Paragraph 16, Compromis

12

Paragraph 27, Compromis.

13

Item 6, Compromis Clarifications.

3

II.

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

A. Compensation in international law is governed by The Articles on the Responsibility of States for International Wrongful Acts (ARSIWA).

Compensation in international law is governed by The Articles on the Responsibility of States for International Wrongful Acts (ARSIWA) which was adopted by the International Law Commission in 2001. Under ARSIWA, state responsibility to compensate arises only from internationally wrongful acts.14 An act or omission is internationally wrongful when it is attributable to the State under international law; and constitutes a breach of an international obligation of the State.15 Such act or omission is internationally wrongful regardless of its characterization in the internal law of the state concerned.16 Moreover, an internationally wrongful act is attributable to the state when it is committed by a state organ,17 whether it exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State. 18 It may also be attributable to the state when it is committed by a person or entity, not a State 14

Art. 1, ARSIWA. “Responsibility of a State for its internationally wrongful act. Every internationally wrongful act of a State entails the international responsibility of that State.” 15

Art. 2, ARSIWA.

16

Art. 3, ARSIWA.

17

“Organ” is defined in Article 4(2) of the ARSIWA as any person or entity which has that status in accordance with the internal law of the State. 18

Art. 4 (1), ARSIWA.

4

organ, but which is empowered by the law of that State to exercise elements of the governmental authority, provided that such person or entity is acting in that capacity in the particular instance.19 Other attributions include: (1) special cases where an organ of one State is placed at the disposal of another State and empowered to exercise the governmental authority of that State;20 (2) conducts of organs or entities empowered to exercise governmental authority even if it was carried out outside the authority of the organ or person concerned or contrary to instructions; (3) conducts carried out on the instructions of a State organ or under its direction or control;21 (4) conducts involving elements of governmental authority, carried out in the absence of the official authorities;22 (5) special case of responsibility in defined circumstances for the conduct of insurrectional movements;23 and (6) conducts not attributable to the State under one of the earlier articles which is nonetheless adopted by the State, expressly or by conduct, as its own.24 There is a breach of an international obligation when conduct attributed to a State as a subject of international law amounts to a failure by that State to comply with an international obligation.25

19

Art. 5, ARSIWA.

20

Art. 6, ARSIWA.

21

Art. 8, ARSIWA.

22

Art. 9, ARSIWA.

23

Art. 10, ARSIWA.

24

Art. 11, ARSIWA.

25

Art. 12, ARSIWA. “Existence of a breach of an international obligation. There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.”

5

The dredging done with respect to the Excelsior Island Project was not a violation of international law or the Malachi Gap Treaty. Thus, there was no internationally wrongful act of Ritania that is attributable to it.26

B. The International Court of Justice (ICJ) found that circumstances were not such as to require the exercise of its power under Article 41 of the ICJ Statute, thus consequently denying Amalea’s request to order Ritania to halt the EIGP project.

The International Court of Justice (ICJ) being the principal judicial organ of the United Nations (UN) generally has the power to settle legal disputes submitted to it by States in accordance with international law.27 It is also empowered to indicate provisional measures to preserve the rights of parties relating to their respective claims before deciding the merits of the case.28 However, there are certain criteria before provisional measures are to be granted. These criteria are discussed in the case concerning Pulp Mills on the River of Uruguay (Argentina v. Uruguay). In this case, Argentina filed an Application instituting proceedings against Uruguay concerning alleged violations by Uruguay of obligations incumbent upon it under the 1975 Statute of the River Uruguay, a treaty signed by the two States. Argentina charged Uruguay for breach of the 1975 Statute when it unilaterally authorized the construction of two pulp mills on

26

27

Art. 2, ARSIWA Art 36, Statute of the Court

28

Article 41 on the Statute of the ICJ states that (1) The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party; and (2) Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.

6

the River Uruguay without complying with the obligatory prior notification and consultation procedure. Argentina maintained that these mills jeopardized conservation of the environment of the river and areas affected by it. This was accompanied by a request for the indication of provisional measures requiring Uruguay, to suspend the authorizations for the construction of the mills and to halt building work on them pending a final decision by the Court, and to refrain from any other action which might aggravate or extend the dispute or render its settlement more difficult. In its order dated July 13, 2006, the Court found, by 14 votes to one, that the circumstances, as they presented themselves to the Court, were not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures.29 On November 29, 2006, Uruguay submitted its own request to the Court for the indication of provisional measures on the grounds that, since November 20, 2006, organized groups of Argentine citizens had blockaded a vital international bridge over the Uruguay River causing it enormous economic damage, and that Argentina had taken no steps to put an end to the blockade. It further asked the Court order Argentina to take “ all reasonable and appropriate steps to prevent or end the interruption of transit between Uruguay and Argentina, including the blockading of bridges and roads between the two States; to abstain from any measure that might aggravate, extend or make more difficult the settlement of this dispute; and finally to abstain from any other measure that might prejudice the rights of Uruguay in dispute before the Court.30 In its decision, the Court stressed that its power to indicate provisional measures can be exercised

29

Pulp Mills on the River Uruguay (Argentina v. Uruguay),Provisional Measures, Order of 13 July 2006, I.C.J. Reports 2006, p. 113 30

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 3

7

only if there is an urgent necessity to prevent irreparable prejudice to the disputed rights.31 The Court is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay claims from the 1975 Statute.32 Moreover, it has not been shown that were there such a risk of prejudice to the rights claimed by Uruguay in this case, it is imminent.33 Denying Uruguay‟s request to indicate provisional measures, the Court reiterates its call to the Parties made in its Order of13 July 2006 to fulfill their obligations under international law, to implement in good faith the consultation and co-operation procedures provided for by the 1975 Statute, and “ to refrain from any actions which might render more difficult the resolution of the present dispute.34 Pulp Mills on the River of Uruguay (Argentina v. Uruguay) established the criteria of urgency, irreparable prejudice, and the right of the parties in dispute. Failure of both states, Argentina and Uruguay, to comply with the criteria denied them of their respective requests for provisional measures. These criteria were likewise not satisfied by Amalea, thus, in its decision cited on September 10, 2009, ICJ has concluded by eight votes to seven denying Amalea‟s request to order Ritania to halt the EIGP project as the circumstances were not such as to require the exercise of its power under Article 41 of the Statute to indicate provisional measures. 35 This

31

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 11, para. 32 32

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 13, para. 41 33

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 13, para. 42 34

Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J. Reports 2007, p. 16, para. 53 35

Paragraph 27, Compromis.

8

decision of the Court is binding between the parties36 and such judgment is final and without appeal.37

Submission 2 Respondent

MILO BELLEZZA‟S SALVAGE OF THE CARGAST IS UNLAWFUL, AND THE CARGO AND ARTIFACTS RECOVERED FROM THE WRECK PROPERLY BELONG TO RITANIA, WHICH HAS THE RIGHT TO PROTECT THEM.

I.

The cargo and artifacts of recovered from the wreck properly belong to Ritania, which has the right to protect them.

A. Ritania owns the said cargo and artifacts under the principle of cultural property nationalism.

Cultural property includes a limited range of objects that distinguish themselves from other artifacts by their special cultural significance and/or rarity.38 The principle of cultural 36

Art. 59, Statute of the International Court of Justice. “The decision of the Court has no binding force except between the parties and in respect of that particular case.” 37

Art. 60. Statute of the International Court of Justice. “The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.” 38

John Henry Merryman, Cultural Property Internationalism, 12 INT'L J. CULTURAL PROP. 11, 32 (2005), page. 11. Article 1 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of November 14, 1970 defines cultural property as “Property which, on religious or secular grounds, is specifically designated by each State as being of importance for archaeology, prehistory, history, literature, art or science and which belong to the following categories: …(b.) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance; …(e) antiquities more than a hundred years old, such as inscriptions, coins and engraved seals.”

9

property nationalism obligates cultural property to belong to the nation in which it originates. 39 It is the dominant view, espoused by most market nations.40 The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of November 14, 1970 exemplifies the principle of cultural property nationalism,41 as well as its offshoot the Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation.42 This principle legitimizes the demand for repatriation of cultural property to the nation of origin.43

Historians are unanimous in their assumption that the cargo that went down with the Cargast, and that lay somewhere in the depths of the Strait of Malachi, contained a vast array of precious stones, gold and other coinage, and bejeweled artifacts during Amalean Captain Baldric Verdigris‟ siege of the Ritanian capital of Helios on the week of 4 March 1510.44 Among the 39

21Raechel Anglin, Note, The World Heritage List: Bridging the Cultural Property Nationalism-Internationalism Divide, 20 YALE J.L. & HUMAN page 242 (2008). 40

Stephanie O. Forbes, Comment, Securing the Future of Our Past: Current Efforts to Protect Cultural Property, 9 TRANSNAT'L L. 235, 242 (1996). 41

John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 842-845 (1986). 42

John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 845 (1986). 43

John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 832 (1986). See Maria Aurora Fe Candelaria, Note, The Angkor Sites of Cambodia: The Conflicting Values of Sustainable Tourism and State Sovereignty, 31 Brook. J. Int‟l L. 253, 267-68 (2005) (“Because cultural property is a part of a national cultural heritage, sovereignty over these properties should remain with the state.”) Ownership over cultural property is never lost and remains with the state of origin for the following reasons: (1) because cultural property is an expression of a civilization that existed or is currently existing within a state, its citizens thus have a stronger claim based on identification and national pride; and (2) retention of sovereignty provides the context of cultural property. 44

Paragraph 33, Compromis.

10

objects stolen was the Sacred Helian Coronet, which was placed on the heads of Ritanian monarchs during their coronation ceremonies.45 According to legend, the Coronet – reportedly made of gold and precious stones – was a gift from the gods to the first king of Ritania in the fourth century A.D., and over the centuries it has acquired mythical importance in Ritanian iconography, a stylized image of which occupies the center of the flag of Ritania to the present day.46 All these artifacts clearly constitute cultural property with deep historical and cultural significance to the Ritanian people, and as an integral part of their cultural identity, 47 these artifacts seized by Amalea from the Cargast remain under the exclusive ownership of Ritania, and must be repatriated to Ritania.

II.

Amalea‟s salvage of the Cargast is unlawful.

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

Amalea is a State Party to the Salvage Convention.48 This Convention sought to codify the traditional principles in the law of salvage, including those embodied in the 1910 Brussels 45

Paragraph 33, Compromis.

46

Paragraph 33, Compromis.

47

Professor Stuart Hall defines the cultural identity in terms of “one, shared culture, a sort of collective „one true self,‟ hiding inside the many other, more superficial or artificially imposed „selves,‟ which people with a shared history and ancestry hold in common. Cultural identity defines us as „one people,‟ and gives a sense of identity and belonging to a group or culture and valuing cultural diversity.” As a result, cultural identity, as evidence of a state‟s spirit code, can be the substantial criterion to authorize the interested state of origin to claim the res. See 48

Paragraph 52, Compromis.

11

Convention for the Unification of Certain Rules of Law relating to Salvage at Sea, and update these principles in the light of modern practice and jurisdiction principles as well as, in particular, to respond to growing international concerns relating to the protection of the marine environment.49

The Salvage Convention applies to all salvage operations of a State Party. 50 It also states that salvors shall conclude contracts for salvage operations with the owner of the property sought to be salvaged.51 Amalea is manifestly not the owner of the cultural property, as they remain owned by Ritania as previously discussed. The salvage of such property is thus violative of the rules of salvage as codified in the Salvage Convention.

B. Amalea has lost ownership of the Cargast by abandonment.

Moreover, Amalea cannot contend that any contents in its own vessel are consequently its own. The Cargast is deemed abandoned by virtue of its commercial or merchant character and its loss having reached 500 years. The attribute “commercial” means that the use of such vessels has to be aimed at obtaining profits, so that even government ships, when operated for commercial purposes, are merchant vessels.52 Contemporary records reveal that before Verdigris and his men laid siege to Helios, they were on their way back to Amalea from a very successful

49

William A. O‟Neill, Foreword, Travaux Preparatoires of the Convention on Salvage 1989.

50

Article 6(1), Salvage Convention.

51

Article 6 and 8, Salvage Convention.

52

The Handbook of International Humanitarian Law, Dieter Fleck

12

trading mission to recently discovered overseas territories.53 Moreover, the crew of the Cargast was composed of private individuals employed by Verdigris using funds provided by private financial backers, who hoped to recover their investment through shares of the foreign treasure they hoped he would bring back to Amalea.54 This fact shows that privateering through a letter of marque was business, in that capital was subscribed by the nobility and the middle class as bakers, bankers, butchers, cheesemongers, coal merchants, dyers, grocers and haberdashers invested in commerce-raiding activity.55 Taken together, these facts indicate the commercial nature of the purposes for which Verdigris and the crew of the Cargast set sail.

Abandonment is presumed to exist 25 years after sinking and becomes absolute after 50 years, and the only exceptions to these rules are military vessels and aircraft, which are to remain the property of the sovereign nation forever.56 The Cargast has remained undiscovered without any published claims until only after the discovery in 2010. 57 Therefore, since the Cargast was a commercial vessel and it was lost at sea for more than 500 years, it is deemed abandoned. Amalea cannot rely on ownership of the vessel to justify its claim over the artifacts.

53

¶33, Compromis.

54

Paragraph 32, Compromis.

55

Gary Sturgess, Privateering and Letters of Marque, Journal of International Peace Operations, Vol. 5, No. 1, JulyAugust 2009, page 38. 56

See Peter Hess, UNESCO-Legalized Plunder? http://www.imacdigest.com/unesco.html (visited November 22, 1998) 57

¶31, Compromis

13

I.

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

A.

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

1.

Amalea is not a party to the UNCLOS.

Article 306 of the UNCLOS itself specifically provides that this Convention is subject to ratification by States.58 This is an example of a convention requiring simple signature, 59 where a signing State does not undertake positive legal obligations under the treaty pending ratification.60 This is made more explicit under Article 14 of the Vienna Convention on the Law of Treaties (VCLT), While both Amalea and Ritania had signed the UNCLOS, 61 only Ritania ratified it as of the time of the case at hand.62 Consequently, Amalea cannot yet be considered a state party to the

58

Article 306, UNCLOS. “Ratification and formal confirmation. This Convention is subject to ratification by States and the other entities referred to in article 305, paragraph l(b), (c), (d) and (e), and to formal confirmation, in accordance with Annex IX, by the entities referred to in article 305, paragraph l(f). The instruments of ratification and of formal confirmation shall be deposited with the Secretary-General of the United Nations.” 59

Signature is referred to as “simple” when subject to ratification, acceptance or approval. On the other hand, signature is referred to as “definitive” when a State consents to be legally bound by signature alone. (The Vienna Conventions on the Law of Treaties: A Commentary by Olivier Corten and Pierre Klein, 2011, p. 218.) 60

UN Treaty Handbook 2012, p. 5.

However, signature indicates the State‟s intention to take steps to express its consent to be bound by the treaty at a later date. Signature also creates an obligation, in the period between signature and ratification, acceptance or approval, to refrain in good faith from acts that would defeat the object and purpose of the treaty (see article 18 of the Vienna Convention 1969). 61

Paragraph 10 and 11, Compromis. In April 1983, Ritania signed and ratified the UNCLOS. Amalea signed UNCLOS in June 1983. 62

Paragraph 11, Compromis.

14

UNCLOS.63 2.

Amalea and Ritania are both parties to the 1958 Geneva Conventions on the Law of the Sea (1958 Geneva Conventions).64

Article 311 of the UNCLOS provides that this Convention shall prevail, as between States Parties, over the 1958 Geneva Conventions.65 This was added to clearly signify the intention of the Third Conference on the Law of Sea to supersede the 1958 Geneva Conventions with the UNCLOS.66 In such a situation Article 30 of the VCLT, regarding the application of successive treaties relating to the same subject matter, is applicable. In paragraph 4(b) thereof, it provides that as between a State party to both treaties and a State party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.67 As discussed previously, while both Amalea and Ritania are parties to the 1958 Geneva Conventions, only Ritania is a party to the 1982 UNCLOS.68 Hence, the 1958 Geneva Conventions, as the treaty to which both states are parties, govern the rights and obligations between Amalea and Ritania

63

“Party” is defined in Article 2(g) of the VCLT as a State which has consented to be bound by the treaty and for which the treaty is in force. Article 2(b) of the same convention defines four international acts whereby a State establishes on the international plane its consent to be bound by a treaty, namely: ratification, acceptance, approval and accession. 64

The 1958 Geneva Conventions on the Law of the Sea are comprised of four Conventions: The Convention on the Territorial Sea and the Contiguous Zone; The Convention on the High Seas; The Convention on Fishing and Conservation of the Living Resources of the High Seas; and The Convention on the Continental Shelf. 65

UNCLOS, Article 311.

66

Myron Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary, p. 235. (1989)

67

Article 30(4)(b), VCLT. Amalea and Ritania have both signed and ratified the VCLT, as per Paragraph 52, Compromis. 68

Paragraph 10 and 11, Compromis.

15

insofar as the Law of the Sea is concerned.

16

II.

THERE

WAS NO VALID EXERCISE OF HOT PURSUIT UNDER THE

1958

GENEVA

CONVENTIONS.

A.

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

When a foreign vessel within the territory of a coastal State commits any violation of the laws and regulations of that coastal State, such vessel may be immediately pursued into the open seas beyond territorial limits and subsequently taken.69 This concept of hot pursuit, as defined by Article 23 of the 1958 Geneva Convention on the High Seas, remained unchanged with the entry of the UNCLOS in Article 111 thereof, and even has the force of custom, enforceable against states which have neither signed nor ratified any of the Conventions on the Law of the Sea.70

For hot pursuit to be validly exercised such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing State.71 Under the regime of the 1958 Geneva Conventions, the ILC considered that the breadth of the territorial sea did not extend beyond 12 miles from the baseline,72 while the contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.73

69

Allen, Doctrine of Hot Pursuit book (page 1), citing The King v. the Ship North, 37 S. C. R. 385 (1905-06).

70

The Right of Hot Pursuit in International Law, Nicholas M. Poulantzas, p. xxviii.

71

Article 23(1), High Seas Convention.

72

ILC, Articles concerning the Law of the Sea with commentaries, p. 265, 1956.

73

Article 24, Convention on the Contiguous Zone.

17

In the case at hand, Captain Walter Haddock of the Icarus, an Amalean Navy Fast Response Cutter, began the pursuit when the Daedalus was within 23 nautical miles of Amalea‟s coastline, well beyond the territorial sea and the contiguous zone of Amalea under the 1958 Geneva Conventions. Hence, the commencement of the pursuit was unlawful, and there can be no valid arrest following hot pursuit if the exercise of such pursuit is not in accordance with the elements as codified in the 1958 High Seas Convention74 and affirmed in the 1982 UNCLOS.75 Submission 4 – Respondent

AMALEA WAS WITHOUT JURISDICTION TO TRY LUZ IN CONNECTION WITH THE ROSEHILL COLLISION, AND MUST RETURN HIM TO RITANIA IMMEDIATELY.

I.

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

Amalea and Ritania are State Parties to the 1958 High Seas Convention.76 Article 11 of the High Seas Convention provides that in the event of a collision on the high seas, no penal or disciplinary proceedings may be instituted against such persons except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national.77 It goes on to say that no arrest or detention of the ship, even as a measure of

74

Article 111, UNCLOS; Article 23, 1958 Convention on the High Seas

75

Saiga case, para. 150.

76

Paragraph 8, Compromis.

77

Convention on the High Seas, Article 11(1).

18

investigation, shall be ordered by any authorities other than those of the flag State. 78 These provisions would later on be reaffirmed in article 97 of the UNCLOS.79

This rule had been previously codified in the International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation, signed at Brussels on 10 May 1952,80 which rule originated as a response against a judgment rendered by the Permanent Court of International Justice on 7 September 1927 in the “Lotus” case81 which allowed Turkish courts to try the master of a French vessel regarding a collision on the high seas.82 It is the flag state that will enforce the rules and regulations not only of its own municipal law but of international law as well.83

Applying the above rule grants exclusive jurisdiction over Luz regarding the incident to Ritania, which flag the Daedalus was flying and of which State Luz is a citizen.84

II.

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

78

Convention on the High Seas, Article 11(3).

79

UNCLOS, Article 97.

80

Article 1 and 2, International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of Navigation 81

Lotus.

82

Articles Concerning the Law of the Sea with commentaries, p. 281, 1956.

83

Malcolm Shaw, International Law, p. 611, 2008.

84

Paragraph 42, Compromis.

19

If a person who is the subject of a controversy has been brought to the domestic court of another state through means that constitute a breach of international law, the domestic court has no jurisdiction to try the subject person.85 To hold otherwise would defeat the purpose and nullify the efficacy of international law.86

When Israel violated the territorial integrity and sovereignty of Argentina by forcibly abducting Adolf Eichmann, a German former Nazi, from Argentinian territory for crimes against the Jewish people, Israel‟s act constituted an international tort, a breach of international law,87 entitling Argentina to demand reparation, i.e. the repatriation of Adolf Eichmann88 prior to withdrawing the demand and accepting a public apology from Israel instead, as per suggestion by the UN Security Council.89

There can be no valid arrest following hot pursuit if the exercise of such pursuit is not in accordance with the elements as codified in the UNCLOS, which elements were first contained in the High Seas Convention.90 As earlier discussed, Amalea‟s exercise of the right to hot pursuit

85

Edwin Dickinson, Jurisdiction following seizure or arrest in violation of international law, p. 244.

86

Edwin Dickinson, Jurisdiction following seizure or arrest in violation of international law, p. 231.

87

Hans W. Baade, The Eichmann Trial: Some Legal Aspects, Duke Law Journal, Volume 1961, p. 401.

88

See SCHWARINBERGER, INTERNATIONAL LAW 562-64 (3d ed. 1957), Chorzow Factory (Jurisdiction), P.C.I.J., ser. A, No. 9 at 21 (Germany v. Poland, 1927); Corfu Channel Case, Great Britain v. Albania, [1949] I.C.J. Rm'. 4, 23. 89

See U.N. Doc. No. S/PV. 868, para. 30131, at 7-8 (USSR); id., para. 33-36, at 8 (U.K.); cf. 7 UNITED NATIONS REVIEW No. 2, 14 (2960). 90

Saiga Case, para. 150.

20

was unlawful, having been based on mere suspicion. This is tantamount to an international tort subject to reparation.91

III.

Ritania has a right to demand the return of Oscar de Luz through restitution.

Article 35 of the International Law Commission‟s Articles on the Responsibility of States for Internationally Wrongful Acts (“ARSIWA”) provides that a State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) is not materially impossible; and (b) does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.92

Restitution may take the form of material restitution such as release and return of persons wrongly detained,93 as well as the form of judicial restitution such as the rescinding or reconsideration of a judicial measure wrongfully adopted in respect of the person of a foreigner.94

IV.

Ritania has exclusive jurisdiction over Luz under the active personality principle.

91

Hans W. Baade, The Eichmann Trial: Some Legal Aspects, Duke Law Journal, Volume 1961, p. 401.

92

Article 35, ARSIWA.

93

ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, p. 96, 2001. 94

ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, p. 97, 2001.

21

According to the active personality principle, a state has a fundamental right to apply its laws to prosecute illegal conduct committed by its citizens overseas95. Known also as the nationality principle, this positive concept of the personality taking the nationality of the criminal as a basis for its application has been clearly recognized by international law. 96 Art. 91 of UNCLOS provides: "Ships have the nationality of the State whose flag they are entitled to fly." Moreover, under Article 94 2(b), the flag State does not only assume jurisdiction over the ship, but also over its crew97. Thus the nationality principle establishes that states have the right to regulate the conduct of their nationals98 even outside its territory. Oscar de Luz is a Ritanian citizen who stole and took control of a Ritanian-flagged yacht and was then on a collision course with Rosehill.99 The crimes committed by its national on board the Ritanian-flagged vessel Daedalus are subject matter covered under the jurisdiction of Ritania.

V.

Amalea cannot claim universal jurisdiction to try and convict Luz.

Under this principle, each and every state has jurisdiction to try offenses regarded as particularly offensive to the international community as a whole, such as piracy, genocide, war 95

ILIAS BANTEKAS & SUSAN NASH, INTERNATIONAL CRMINAL LAW 144 (Cavendish Publishing 2003) (2001). 96

Abdulmohsen Alothman , State Jurisdiction in the Area of International Criminal Law, p.27

97

A Handbook on the New Law of the Sea, Dupuy & Vignes vol. 2 (1991), P. 146

98

One example of this principle at work is section 4 of the Indian Penal Code, which says, "The provisions of this Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any person on any ship or aircraft registered in India wherever it may be." Another example is the U.S.'s application of its civil rights laws to Americans employed abroad by American employers 99

Par. 42, Compromis 2014

22

crimes and crimes against humanity.100 States are competent to prosecute and punish alleged offenders irrespective of the place of commission of the crime and regardless of any link of active or passive nationality or other grounds of jurisdiction recognized by international law.101

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

100

Malcolm Shaw, International Law, 6th, 2008, p. 668.

101

Malcolm Shaw, International Law, 6th, 2008, p. 668.

23

CONCLUSION AND PRAYER FOR RELIEF

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

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

2.

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

3.

The Amalean Navy‟s pursuit of Oscar de Luz into Ritania‟s EEZ, and his subsequent arrest, were illegal.

4.

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

24

25