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735A

IN THE INTERNATIONAL COURT

OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, NETHERLANDS

THE CASE CONCERNING CERTAIN ACTIVITIES

WITHIN THE MALACHI GAP

STATE OF AMALEA

(APPLICANT)

v

REPUBLIC OF RITANIA

(RESPONDENT)


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ii


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TABLEOFCONTENTS

iii


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INDEXOFAUTHORITIES

TREATIESANDCONVENTIONS

Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters ofCollision.....................................................................................................................................23

Convention on the Continental Shelf, April 29, 9!", ! U.S.#. $%& $99 U.'.#.S. 3.............(

Convention on the )igh Seas, April 29, 9!", 3 U.S.#. 232& $!* U.'.#.S. .........................(

Convention on the #erritorial Sea and the Contiguous +one, April 29, 9!", ! U.S.#. (*(& !(

U.'.#.S. 2*!..............................................................................................................................(

#he Convention on ishing and Conservation of the -iving Resources of the )igh Seas...........(

Articles on the Responsiilit/ of States for 0nternational 1rongful, April 29, 9!", % U.S.#.

3"& !!9 U.'.#.S. 2"!...........................................................................................3, $, !, (, %, 2!

Convention for the Suppression of Unlaful Acts of iolence against the Safet/ of 4aritime

'avigation..................................................................................................................................23

Convention on 5nvironmental 0mpact Assessment in a #ransoundar/ Conte6t Appendi6 00

7998.......................................................................................................................................2, (

ar/ Sturgess, Privateering and Letters of Marque, ! n. Journal of 0nternational Peace

:perations 3", Jul/;August 2**9..............................................................................................3

John . 4cCarth/, The Passive Personality Principle and Its Use in Combating International

Terrorism, ordham 0nternational -a Journal...................................................................2, 22

U'5SC: Convention on the Protection of Underater Cultural )eritage......................%, ", 9, *

United 'ations Convention on the -a of the Sea,


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Judgment, Jul/ 999...............................................................................................................%

S.S. -otus 7r. v. #ur=.8, 92% P.C.0.J. 7ser. A8 'o. * 7Sept. %8..............................................2*, 23

MUNICIPALCASESANDLAWS

"!M!S! Titanic# $3! .3d at !32 n.3................................................................................................Strassheim v.$ailey 22 US 2"* 798.......................................................................................2*

US v. Columba%Colella(*$ .2d 3!(.............................................................................................2*

US v.Pere&%'errera (* .2d 2"9.................................................................................................2*

TREATISESANDOTHERBOOKS

Cartner> is=e -eiter, The International La( of the Shipmaster.................................................2$

Pierre lein, Commentar/, The Vienna Conventions on the La( of Treaties....!

S)A1, 0'#5R'A#0:'A- -A1.........................................................................9, 2*, 2, 23, 2!

JOURNALARTICLES

)arvard Research


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MISCELLANEOUS

Allen,


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STATEMENTOFJURISDICTION

Pursuant to the Joint 'otification and Compromis concluded on % Septemer 2*3 at #he

)ague, #he 'etherlands, eteen the State of Amalea and the Repulic of Ritania 7collectivel/

Fthe PartiesH8, and in accordance ith Article $*78 of the Statute of the 0nternational Court of

Justice, the Parties here/ sumit to this Court its claims concerning Certain Activities ithin the

4alachi ap.

#his Court is re?uested to decide the Case on the asis of the rules and principles of

international la, including an/ applicale treaties. 0n accordance ith Article 3(78 of the

CourtIs Statute, the Parties shall accept an/ Judgment of the Court as final and inding upon

them and shall e6ecute it in its entiret/ and in good faith.

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QUESTIONSPRESENTED

#he State of Amalea respectfull/ as=s this Court

. 1hether RitaniaIs acts and omissions ith respect to the development of

56celsior 0sland violated international la, and if so, hether Amalea is entitled

to see= compensation from Ritania for economic losses caused / the landslide.

2. 1hether Amalea has e6clusive onership of the rec= of the Cargast and all

artifacts recovered from it, and hether RitaniaIs deplo/ment of patrol vessels to

the site of the Cargastviolated international la.

3. 1hether the Amalean 'av/Is pursuit of :scar de -u@ into RitaniaIs 55+, and his

suse?uent arrest, ere in compliance ith international la.

$. 1hether Amalea had Lurisdiction to tr/ and convict -u@ for criminal actions

related to the "osehillincident, and if so, hether it has an oligation to return

him to Ritania.

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STATEMENTOFFACTS

Amalea, a developing and nel/ industriali@ed island State, is separated from the Repulic

of Ritania / the Strait of 4alachi. #he strait contains aundant fish and shellfish stoc=s.

Amalean fishing vessels have historicall/ plied almost ever/ part of the strait, regularl/ coming

ithin less than $* nautical miles of the Ritanian coast.

0n 9!", oth countries signed the four eneva Conventions on the -a of the Sea.

Amalea and Ritania ratified all four Conventions. Amalea signed U'C-:S in June 9"3, ut

has never ratified it.

Amalea developed and implemented sustainale fishing practices. 0n 9"(, its legislature

enacted the Coastal isheries Protection Act, intending to regulate an/ activities that posed ris=s

to fish stoc=s. )oever, Ritania oLected to an/ potential interpretation of the Act as appl/ing to

an/ part of the Strait of 4alachi.

Amalea and Ritania ecame State Parties to the 4alachi ap treat/ dated 3* 4arch 992

hich oLective as to alance, and insofar as possile to promote, the interests of the States

Parties in respect of e6ploration, e6ploitation, and protection of this maritime area of great

importance to them oth.

AmaleaIs fishing industr/ directl/ emplo/ed over 2!*,*** people and supplied the

domestic mar=et, suppl/ing $*M of the protein content of Amalean diet and responsile for

e6ports generating more than !M of the countr/Is N$! Gillion


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annuall/ / 2*** and e6porters have regularl/ proLected higher returns over the ne6t decades.

0n late 2**(, Ritanian illionaire 5smeralda ali announced her intention to finance the

construction of 56celsior 0sland on the Sirius Plateau located Lust outside the 4alachi gap. #he

to illion cuic meters of sand and roc= for the construction ould e dredged entirel/ from

areas located ithin the 4alachi ap. AmaleaIs oreign 4inister summoned the Ritanian

Amassador for a meeting, here he made clear that such a large;scale proLect cannot e

underta=en ithout the consent of Amalea and Ritania, in accordance ith the letter and spirit of

the #reat/. Amalea maintained that Ritania could not permit the dredging ithout at least a full

5nvironmental 0mpact Assessment 750A8 specificall/ covering all of its potential impacts.

Amalea e6pressed particular concern regarding the fate of the


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had fallen / the end of 2** and 2*. G/ eruar/ 2*2, 0-SA declared the


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Amalean nationals, and !* others ere inLured.

1ithin minutes of the "osehillIs distress call, the Amalean Coastal Protection Service

7ACPS8 issued an alert descriing the"osehillcollision as apparentl/ caused / a /acht that had

hurriedl/ left the scene, noting that the stolen /acht had een seen speeding aa/ earing est

northest and the persons on oard are suspected of human traffic=ing. As the $aedalusdre

ithin AmaleaIs coastline, it as pic=ed up / the Icarus, an Amalean 'av/ ast Response

Cutter hich as set out to intercept the $aedalus. 1hen theIcarusas ithin visual range,

Captain )addoc= ordered the $aedalus to stop. 0nstead, -u@ turned the $aedalus and sped

toards Ritania. )addoc= pursued the$aedalus. 0n an attempt to get theIcarusto veer aa/,

-u@ suddenl/ steered the$aedalusstraight toards theIcarus. Captain )addoc= =ept his vessel

on course and the ships collided. #heIcarussuffered some damage, ut the$aedalusegan to

sin= rapidl/. Captain )addoc=Is cre captured -u@, and declared him under arrest and rought

him on oard theIcarus.

AmaleaIs Attorne/ eneral concluded that under the Amalea Penal code, hich

specificall/ includes offenses committed in the 4alachi ap, Amalea had Lurisdiction to tr/ -u@

for violations of Amalean criminal las. )e as charged ith 2% counts of murder as ell as

other various crimes. Ritania immediatel/ filed a formal protest demanding for the return of

-u@. Amalea declined to repatriate -u@, noting that Ritanian criminal la did not e6pressl/

provide for prosecution of offenses committed outside the countr/Is territorial aters. Amalea

put him on trial and -u@ as ultimatel/ convicted of nearl/ all of the charges against him, and

this as affirmed / the Court of Criminal Appeals in June 2*2, and / AmaleaIs Supreme

Court in Januar/ 2*3.

0n eruar/ 2*3, AmaleaIs 4inistr/ of isheries pulished a report concluding that the

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proLected commercial e6ploitation of the


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SUMMARYOFPLEADINGS

0. Ritania violated the terms of the 4alachi ap #reat/ in alloing the 56celsior

0sland and as Poer, -imited 750P8 to conduct dredging ithin the 4alachi ap.

Article 2 of the said treat/ states that neither part/ shall e6ercise its rights under the

agreement to the preLudice of the interests of the other. Since the dredging adversel/

affected the fate of the


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0. Amalea had Lurisdiction to tr/ and convict Ritanian citi@en :scar de -u@ ecause

the territorialit/ principle applies to enale Amalea to e6ercise Lurisdiction to tr/ and

convict :scar de -u@ for all the victims aoard the "osehill. Another principle at or=,

the passive personalit/ principle, Lustifies the e6ercise of Lurisdiction / Amalea over

:scar de -u@. Ritania cannot avail of the flag;State Lurisdiction over the Ritanian;flagged

$aedalusto Lustif/ their claim ecause :scar de -u@ as not the master thereof. -astl/,

Ritania cannot claim Lurisdiction ased on the e6istence of a safet/ @one around 56celsior

0sland and Amalea has no oligation to return :scar de -u@ to Ritania ecause e6tradition

does not appl/ to the case at hand.

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PLEADINGS

I. RITANIAS ACTS AND OMISSIONS WITH RESPECT TO THE

DEVELOPMENT OF EXCELSIOR ISLAND VIOLATED

INTERNATIONAL LAW, AND AMALEA IS THEREFORE

ENTITLED TO SEEK COMPENSATION FROM RITANIA FOR

ECONOMIC LOSSES CAUSED BY THE LANDSLIDE.

A. Rit!i" #t" !$ %&i""i%!" 'it( )*"+*#t t% t(*

$**-%+&*!t % E/#*-"i%) I"-!$ i%-t*$ i!t*)!ti%!-

-'.

1. Ritania violated the terms of the Malachi Gap Treaty

in allowing the Excelsior Island and Gas Power,

imited !EIGP" to cond#ct dredging within the

Malachi Gap.

#he dredging of oceanic sand and roc=s ithin the 4alachi ap area that ould adversel/

affect the fate of the


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maLor dredging activit/ in the 4alachi ap ould interfere ith ongoing research and

conservation efforts, and could prove catastrophic for native species and ecos/stems. 0t also

suggested that ecause of the presence of gas h/drates at the foot of the Sirius Plateau, an

underater landslide ould threaten particularl/ grave damage.(#hus, it ecomes clear that the

dredging ould preLudice AmaleaIs interest in the protection of fisheries hich is, conse?uentl/,

in reach of the 4alachi ap #reat/.

$. Ritania failed its o%ligations #nder c#stomary

international environmental law to cond#ct a

comprehensive Environmental Impact &ssessment

!EI&" to incl#de the impact of the dredging to the fish

pop#lation within the Malachi Gap.

As part of the Ritanian licensing process, 50P as re?uired to conduct an environmental

impact assessment 750A8 for the 56celsior 0sland proLect. )oever, the 50A as not ale to

address the potential impacts of the dredging program on the aters of the 4alachi ap, or on

fish species living there.%Under the 99 Convention on 5nvironmental 0mpact Assessment in a

#ransoundar/ Conte6t, an 50A must contain the minimum re?uirements, one of hich is a

description of the potential environmental impact of the proposed activit/ and its alternatives and

an estimation of its significance." Since 50P failed to compl/ ith the minimum content

re?uirement in its 50A for not addressing the potential impacts of the dredging program on the

aters and the fish species of the 4alachi ap, Ritania failed its oligations under customar/

international environmental la for approving such 50A and suse?uentl/ granting 50P permit

( Comp. O 2!.

% Comp. O 23.

" See Convention on 5nvironmental 0mpact Assessment in a #ransoundar/ Conte6t Appendi6 00 7998 BhereinafterC50A#C.

%


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to dredge.

B. Rit!i (" $0t1 t% #%&+*!"t* A&-* %) t(*

*#%!%&i# -%""*" it "0*)*$ $0* t% t(* -!$"-i$*.

1. Ritania is lia%le #nder the &rticles on the

Responsi%ility of 'tates for International (rongf#l

&cts !&R'I(&".

#he Articles on the Responsiilit/ of States for 0nternational 1rongful Acts 7ARS01A8

as adopted / the 0nternational -a Commission at its !3rdsession in 2**.90t contains the

underl/ing principle that an internationall/ rongful act of a state entails international

responsiilit/.*

Under the ARS01A, an act or omission constitutes a reach of an international oligation

hen such conduct attriutale to the State is not in conformit/ ith hat is re?uired of it / that

oligation, regardless of its origin or character.4oreover, the characteri@ation of a conduct

attriutale to the State as internationall/ rongful is independent from its characteri@ation in the

internal la of the state concerned.2

Such act or omission is internationall/ rongful hen it is attriutale to the State under

9 U' -50S-A#05 S5R05S, 4aterials :n #he Responsiilit/ :f States or 0nternationall/ 1rongful Acts vii,

O3.

*Articles on the Responsiilit/ of States for 0nternational 1rongful Acts art. Bhereinafter ARS01A.

Id! art. 2.

2Id! art. 3."


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international la and constitutes a reach of an international oligation of the State.3 Such

internationall/ rongful act is attriutale to the State hen it falls under the folloing

circumstances 78 hen it is committed / a state organ,$hether it e6ercises legislative,

e6ecutive, Ludicial or an/ other functions, hatever position it holds in the organi@ation of the

State, and hatever its character as an organ of the central overnment or of a territorial unit of

the State&! 728 hen it is committed / a person or entit/, not a State organ, ut hich is

empoered / the la of that State to e6ercise elements of the governmental authorit/, provided

that such person or entit/ is acting in that capacit/ in the particular instance& (738 hen it falls

under special cases here an organ of one State is placed at the disposal of another State and

empoered to e6ercise the governmental authorit/ of that State&%7$8 hen it involves conducts

of organs or entities empoered to e6ercise governmental authorit/ even if it as carried out

outside the authorit/ of the organ or person concerned or contrar/ to instructions& 7!8 hen such

conduct is carried out on the instructions of a State organ or under its direction or control& " 7(8

hen it constitutes conducts involving elements of governmental authorit/, carried out in the

asence of the official authorities&9 7%8 hen it is a special case involving the conduct of and

insurrectional or other movement hich suse?uentl/ ecomes the ne overnment of the State

or succeeds in estalishing a ne State&2*and finall/ 7"8 hen such conduct is not attriutale to

3Id! art. 2.

$Id! art. $728.

!Id! art. $78.

(Id!art. !.

%Id! art. (.

"Id! art. ",

9Id! art. 9,

2*Id! art. *.

9


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the State under one of the earlier articles ut hich is nonetheless adopted / the State, e6pressl/

or / conduct, as its on.2

C. Hi!2 3)*#(*$ it" i!t*)!ti%!- %3-i2ti%!", Rit!i#%&&itt*$ i!t*)!ti%!--1 ')%!20- #t" !$ t(*)*%)*

&0"t t4* )*"+%!"i3i-it1 31 #%&+*!"ti%!.

1. The acts and omissions were attri%#ta%le to Ritania.

#he ARS01A provides that the conduct of an/ State organ shall e considered an act of

that State under international la, hether the organ e6ercises legislative, e6ecutive, Ludicial or

an/ other functions, hatever position it holds in the organi@ation of the State, and hatever its

character as an organ of the central overnment or of a territorial unit of the State. An organ

includes an/ person or entit/ hich has that status in accordance ith the internal la of the

State.22 Under Ritanian la, #he


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$. Ritania m#st compensate &malea for the economic

loss it s#ffered and contin#es to s#ffer as a res#lt of

the #nderwater landslide %ro#ght a%o#t %y the

dredging within the Malachi Gap area.

i. Ritania brought adverse transboundary impact to

Amalea when the underwater landslide caused an

immediate and significant decrease in the Dorian

wrasse population.

After three months of dredging ithout incident, an underater landslide as detected

hich as, / all accounts, the direct result of the dredging. #his has caused e6tremel/ high

ater turidit/ levels hich persisted for several ee=s and a dissociation of gas h/drates at the

foot of the Sirius Plateau, resulting in a higher concentration of several dissolved gases,

including caron dio6ide and methane, in shallo aters throughout the Sirius Plateau.2! #he

underater landslide has rought an adverse transoundar/ impact2(to Amalea for its immediate

and significant negative impact on the =non


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ii. Ritania is obligated to compensate the economic

damage it has caused Amalea.

Article 3( of the ARS01A provides that the State responsile for an internationall/

rongful act is under an oligation to compensate for the damage caused there/, insofar as such

damage is not made good / restitution.29Such damage ma/ e material or moral.3*#he damage

caused / the underater landslide hich is the decrease in the population of the


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II. AMALEA HAS EXCLUSIVE OWNERSHIP OF THE WRECK OF

THE )&RG&'TAND ALL ARTIFACTS RECOVERED FROM IT,

AND RITANIAS DEPLOYMENT OF PATROL VESSELS TO THE

SITE OF THE )&RG&'T VIOLATED INTERNATIONAL LAW.

A. A&-* (" 3*tt*) )i2(t t% t(* )argast !$ -- it"

#%!t*!t" 0!$*) t(* L' % Fi!$" !$ t(* L' % S-2*,

t% t(* */t*!t --%'*$ 31 t(* UNESCO C%!*!ti%! %! t(*

P)%t*#ti%! % U!$*)'t*) C0-t0)- H*)it2* 56UCH

C%!*!ti%!78.

1. The *)+ )onvention governs &maleas cond#ct of

the wrec-.

Article 787a8 defines Funderater cultural heritageH as all traces of human e6istence

having a cultural, historical or archaeological character hich have een partiall/ or totall/ under

ater, periodicall/ or continuousl/, for at least ** /ears,33including vessels and their cargo or

other contents, together ith their archaeological and natural conte6t.3$

#he rich histor/ surrounding the Cargasthas much to do ith the deeds of its captain,

Galdric erdigris,3!and in the precious artifacts that it contained.3(At the time the Cargastent

don, erdigris held a letter of mar?ue from the ing of Amalea, ho granted the ship to him

for use Fto ring glor/ to the ingdom of Amalea.H3% )istorians are unanimous in their

assumption that the cargo that ent don ith the Cargastcontained a vast arra/ of precious

33 U'5SC: Convention on the Protection of Underater Cultural )eritage art. O 7a8, 'ovemer 2, 2**, $0-4 $* Bhereinafter UC) Convention.

3$Id!O 7a87ii8.

3! Comp. O 3.

3( Comp. O 33.

3%Id.

23


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stones, gold and other coinage, and eLeeled artifacts otained not onl/ during the Sac= of

)elios of $ 4arch !* ut also during the trading mission that preceded it& as ell as, in

particular, the Sacred )elian Coronet, hich as placed on the heads of Ritanian monarchs

during their coronation ceremonies, and hich over the centuries has ac?uired m/thical

importance in Ritanian iconograph/, and a st/li@ed image of the Coronet occupies the center of

the flag of Ritania to the present da/.3"

erdigris died at sea on * 4arch !*, hen the Cargast disappeared in the Strait of

4alachi during a storm.39#hus, ta=ing into consideration their cultural and historical significance

as ell as their more than !** /ears of eing lost underater, Article 787a8 of the UC)

Convention ould classif/ the Cargastand all its contents as underater cultural heritage.

Amalea is a State Part/ to the UC) Convention.$*As such, the Convention governs the

conduct of Amalea ith respect to an/ underater cultural heritage found ithin its

Lurisdiction.$

$. Milo elle//as salvage of the )argast was lawf#l

and allowa%le #nder the *)+ )onvention.

Amalea is a State Part/ to the 9"9 0nternational Convention on Salvage 7FSalvage

ConventionH8.$2#he Salvage Convention sought to codif/ the traditional principles in the la of

salvage, including those emodied in the 9* Grussels Convention for the Unification of

Certain Rules of -a relating to Salvage at Sea, and update these principles in the light of

3" Comp. O 33.

39Id.

$* Comp. O !2& See UC) Convention art. O 27a8 7defining FState PartiesH as States hich have consented to eound / the Convention and for hich the Convention is in force8.

$ UC) Convention art. 2.

$2 Comp. O !2.

2$


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modern practice and Lurisdiction principles as ell as, in particular, to respond to groing

international concerns relating to the protection of the marine environment.$3

A maLor rea=through in the UC) Convention is the reLection of the la of salvage and the

la of finds in sei@ing underater cultural heritage.$$)oever, there is an e6ception provided in

Article $ thereof hich applies s?uarel/ to 4ilo Gelle@@aIs retrieval of the Cargast! Article $

provides that an/ activit/ relating to underater cultural heritage$!shall not e suLect to the la

of salvage and the la of finds, unless it

3! is authori&ed by the competent authorities#

4! is in full conformity (ith this Convention# and

5! ensures that any recovery of the under(ater cultural heritage

achieves its ma6imum protection!$(

Regarding the first element, competent authorities, according to the UC) Convention, are

those estalished / States Parties to estalish, maintain and update an inventor/ of underater

cultural heritage& the effective protection, conservation, presentation and management of

underater cultural heritage& as ell as research and education.$% 0t is orth/ to note that the

Compromis is ereft of an/ evidence on either the presence or asence of an/ such competent

authorities on the part of Amalea. 1hat is clear, hoever, is that the State of Amalea itself

contracted ith 4ilo Gelle@@a$" to e6plore the rec= and recover the items therefrom. $9 #he

Amalean Cultural Affairs 4inistr/ ould later on descrie Gelle@@a as the Fsalvor of the rec=

$3 10--0A4 A. :I'50--, oreord, #RAAUD PR5PARA#:0R5S : #)5 C:'5'#0:' :' SA-A5

79"98.$$ 4ar=us Rau, The U+,S- Convention on Under(ater Culture 'eritage and International La( of the Sea, $*!.

$! UC) Convention art. O (.

$(Id!art. $.

$%Id!art. 22 O .

$" Comp. O 3(.

$9Id.

2!


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of the CargastH!*Facting as agent for and on ehalf of the Repulic of Amalea.H!

Regarding the second element, 4ilo Gelle@@aIs salvage of the Cargast full/ complies

ith the UC) Convention. AmaleaIs oligations under the Convention ma/ e summari@ed

through oLectives of the UC) Convention.!2 #hese include the dut/ to cooperate in the

protection of the underater cultural heritage,!3the oligation to preserve underater cultural

heritage for the enefit of humanit/,!$ the principle of in situ preservation as the first option

efore alloing or engaging in activities directed at underater cultural heritage,!! the

prohiition of commercial e6ploitation of the underater cultural heritage,!(and the dut/ to give

proper respect to all human remains located in maritime aters.!%'one of these oLectives of the

Convention ere ever undermined in 4ilo Gelle@@aIs salvage of the Cargast!

As to the third element, the recover/ of the Cargast as necessar/ for its protection and

preservation. #he hull structure of the Cargast as at ris= of catastrophic collapse, and Amalea

immediatel/ contracted ith 4ilo Gelle@@a!" to e6plore the rec= and recover the items

therefrom.!9

!* Comp. O 3".

!Id.

!2 4ar=us Rau, The U+,SC- Convention on Under(ater Cultural 'eritage and International La( of the Sea , $*$.

!3 UC) Convention art. 2 O 2.!$Id!O 3.

!!Id!O !.

!(Id!O %.

!%Id!O 9.

!" Comp. O 3(.

!9Id!

2(


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0. &malea has a %etter right to the wrec- #nder the law

of finds.

1hile the purpose of salvage la is to encourage the rescue of propert/ in marine peril,(*

the oLect of the la of finds is the vesting of title after the reduction of aandoned propert/ to

possession.(0n order to appl/ the la on finds in the conte6t of shiprec=s, three elements must

e present

. Intent to reduce property to possession7

2. .ctual possession7 and

3. .bandonment of the original o(ner!(2

:n the first element, AmaleaIs intent to reduce the propert/ to possession is evident in that

Amalean Prime 4inister Geesle/ responded to the discover/ / claiming that the Cargast and all

of the cargo are the propert/ of Amalea, to e held in trust for all human=ind. (3)e even added

that the rec= should e protected from those ho have no right to it. ($Suse?uentl/, AmaleaIs

Cultural Affairs 4inistr/ also declared that Amalea remains in fact and at la the oner of the

rec= of the Cargast and its cargo.(!

:n the second element, Amalea otained actual possession of the Cargast and its cargo

hen it successfull/ salvaged the rec= and retrieved the artifacts, including the Sacred )elian

Coronet, through 4ilo Gelle@@a.((

(* Justin S.


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:n the third element, the Cargast is deemed aandoned / virtue of its commercial or

merchant character and its loss having reached !** /ears. #he attriute FcommercialH means that

the use of such vessels has to e aimed at otaining profits, so that even government ships, hen

operated for commercial purposes, are merchant vessels.(%Contemporar/ records reveal that

efore erdigris and his men laid siege to )elios, the/ ere on their a/ ac= to Amalea from a

ver/ successful trading mission to recentl/ discovered overseas territories. ("4oreover, the cre

of the Cargastere private individuals emplo/ed / erdigris using funds provided / private

financial ac=ers, ho hoped to recover their investment through shares of the foreign treasure

the/ hoped he ould ring ac= to Amalea.

(9

#his fact shos that throughout histor/

privateering through a letter of mar?ue as usiness, in that capital as suscried / the

noilit/ and the middle class as a=ers, an=ers, utchers, cheesemongers, coal merchants, d/ers,

grocers and haerdashers invested in commerce;raiding activit/.%*#a=en together, these facts

indicate the commercial nature of the purposes for hich erdigris and the cre of the Cargast

set sail.

Aandonment is presumed to e6ist 2! /ears after sin=ing and ecomes asolute after !*

/ears, and the onl/ e6ceptions to these rules are militar/ vessels and aircraft, hich are to remain

the propert/ of the sovereign nation forever.%#he Cargasthas remained undiscovered ithout

an/ pulished claims until onl/ after the discover/ in 2**. %2#herefore, since the Cargast as a

commercial vessel and it as lost at sea for more than !** /ears, it is deemed aandoned.

(%


29/44

#hese three elements concur to vest Amalea ith title of onership under the la of finds,

the application of hich does not contravene the UC) Convention in the facts at hand.

B. Rit!i" $*+-%1&*!t % +t)%- *""*-" t% t(* "it* % t(*)argasti%-t*$ i!t*)!ti%!- -'.

1. The presence of Ritanian patrol vessels at the site of

the )argast violates innocent passage.

#he right to innocent passage, as laid don in the provisions of the 9"2 United 'ations

Convention on the -a of the Sea 7U'C-:S8, is considered part of customar/ international

la.%3)ence, such right is deemed to e availale to Amalea despite its failure to ratif/ the

U'C-:S.%$

Passage is considered innocent so long as it is not preLudicial to the peace, good order or

securit/ of the coastal State,%!hich in this case is Amalea. #he regime of innocent passage

applies not onl/ ith regard to the territorial sea ut also in straits used for international

navigation eteen a part of the high seas or an e6clusive economic @one and the territorial sea

of a foreign State.%(Coastal states ma/ also ta=e necessar/ steps to prevent passage hich is not

innocent.%%

An activit/ that violates innocent passage in the territorial sea cannot e considered to e a

%3 Statement / the President of the 0nternational #riunal for the -a of the Sea,)reedom of +avigation1 +e(

Challenges", 7Januar/ $, 2*$8,httpKK.itlos.orgKfileadminKitlosKdocumentsKstatementsofpresidentKolfrumKfreedomnavigation*"**"eng.pdf.

%$ Statute of 0nternational Court of Justice art. 3"7878.

%! United 'ations Convention on the -a of the Sea art. 978,


30/44

Fpeaceful activit/H in the 55+.%"#he Ritanian nav/ egan to patrol the area of the rec=,

reserving its right to send naval patrol vessels to the area to prevent other ships from reaching the

site,%9hich patrol continues up to this da/."*)ence, Ritania has violated the right to innocent

passage and Amalea ma/ prevent their passage in the 55+.

$. &malea possesses sovereign rights for the p#rpose

of exploring and exploiting, conserving and

managing the excl#sive economic /one, #nder

c#stomary international law.

#he allocation of rights in the 55+ forms part of customar/ international la, and ere

codified in Article !(787a8 of the U'C-:S."Amalea possesses sovereign rights ith regard to

other activities for the economic e6ploitation and e6ploration of its 55+. #he rec= of the

Cargast as located appro6imatel/ "* nautical miles from the nearest point of Amalean

shoreline."2Geing ithin the Amalean 55+, the State has such sovereign rights over the rec=.

%" J0 U:D0', #)5 -5A-0#E : #)5 F04P5CCAG-5 0'C0


31/44

III. AMALEA WAS ENTITLED TO PURSUE OSCAR DE LU9,

INVOKING THE RIGHT TO HOT PURSUIT UNDER ARTICLE :;

OF THE ? GENEVA CONVENTION ON THE HIGH SEAS

5HIGH SEAS CONVENTION8.

A. T(* Hi2( S*" C%!*!ti%! 2%*)!" t(* */*)#i"* % t(*

Ri2(t t% H%t P0)"0it !$ !%t t(*


32/44

$. &malea and Ritania are %oth parties to the 1456

Geneva )onventions on the aw of the 'ea !1456

Geneva )onventions".64

Article 3 of the U'C-:S provides that this Convention shall prevail, as eteen States

Parties, over the 9!" eneva Conventions.9*#his as added to clearl/ signif/ the intention of

the #hird Conference on the -a of Sea to supersede the 9!" eneva Conventions ith the

U'C-:S.9

0n such a situation, Article 3* of the C-#, regarding the application of successive treaties

relating to the same suLect matter, is applicale. 0n paragraph $78 thereof, it provides that as

eteen a State part/ to oth treaties and a State part/ to onl/ one of the treaties, the treat/ to

hich oth States are parties governs their mutual rights and oligations.92 As discussed

previousl/, hile oth Amalea and Ritania are parties to the 9!" eneva Conventions, onl/

Ritania is a part/ to the 9"2 U'C-:S.93)ence, the 9!" eneva Conventions, as the treat/ to

hich oth states are parties, govern the rights and oligations eteen Amalea and Ritania

insofar as the -a of the Sea is concerned.

"9 eneva Conventions on the -a of the Sea 79!"8 7comprising four Conventions #he Convention on the#erritorial Sea and the Contiguous +one& #he Convention on the )igh Seas& #he Convention on ishing andConservation of the -iving Resources of the )igh Seas& and #he Convention on the Continental Shelf8 BhereinafterC-S.

9* U'C-:S art. 3.

9 4/ron 'ord?uist, Commentar/, United +ations Convention on the La( of the Sea 39:4# 23! 79"98.

92 C-# art. 3*7$878.

93 Comp. OO *, .

32


33/44

0. The laws and reg#lations of &malea were violated,

entitling it to hot p#rs#it and arrest of the alleged

offender.

1hen a foreign vessel ithin the territor/ of a coastal State commits an/ violation of the

las and regulations of that coastal State, such vessel ma/ e immediatel/ pursued into the open

seas e/ond territorial limits and suse?uentl/ ta=en.9$#his concept of hot pursuit, as defined /

Article 23 of the 9!" eneva Convention on the )igh Seas, remained unchanged ith the entr/

of the U'C-:S in Article thereof, and even has the force of custom, enforceale against

states hich have neither signed nor ratified an/ of the Conventions on the -a of the Sea.9!

#he 0nternational #riunal for the -a of the Sea, in the M;V Saiga


34/44

accordance ith the elements as codified in the U'C-:S, hich elements ere first contained

in the )igh Seas Convention.99

#o e laful, the pursuit must conform to the folloing elements

. The competent authorities of the coastal State have good

reason to believe that the ship has violated the la(s and

regulations of that State7 provided that if the foreign ship is

(ithin a contiguous &one# as defined in .rticle 4> of the

Convention on the Territorial Sea and the Contiguous ?one# the

pursuit may only be underta0en if there has been a violation of

the rights for the protection of (hich the &one (as established7

2. Such pursuit must be commenced (hen the foreign ship or

one of its boats is (ithin the internal (aters# the archipelagic

(aters# the territorial sea or the contiguous &one of the pursuing

State7 and

3. The pursuit may only be continued outside the territorial

sea or the contiguous &one if the pursuit has not been

interrupted!**

#he first element is satisfied in that the Amalean 'av/ as informed / the Amalean

Coastal Protection Service 7ACPS8 through an alert descriing the "osehill collision as

99Id! 8 !*.

** U'C-:S art. .

3$


35/44

apparentl/ caused / a /acht that had hurriedl/ left the scene, and that the /acht had een seen

speeding aa/ earing est northest, creating a danger for other vessels.*Captain )addoc=

of theIcarus received the ACPS alert hich said, FRitanian flagged /acht$aedaluslast seen

fleeing 56celsior 0sland toards Amalea. #he /acht is stolen and persons on oard are suspected

of human traffic=ing.H*2 #he sin=ing of the "osehill as ell as the suspicions of human

traffic=ing constitute valid grounds for the Amalean 'av/ to elieve that the $aedalus had

violated the las and regulations of Amalea, as ell as the rights for the protection of hich the

@one as estalished.

#he second element is also satisfied hen the pursuit as commenced hile the $aedalus

as ithin 23 nautical miles from AmaleaIs coastline, ell ithin the contiguous @one of

Amalea.*3

inall/, the third element is li=eise present since the$aedalusas onl/ ale to reach the

uncontested 56clusive 5conomic +one 755+8 of Ritania efore it san=, and hereupon -u@ as

arrested.*$Up to that point, the pursuit remained uninterrupted.

* Comp. 8$$.

*2 Comp. clarifications 8 $$.

*3 Comp. 8 $!.

*$ Comp. 8 $(.

3!


36/44

IV. AMALEA HAD JURISDICTION TO TRY AND CONVICT LU9

FOR CRIMINAL ACTIONS RELATED TO THE R2'E+I

INCIDENT, AND HAS NO OBLIGATION TO RETURN HIM TO

RITANIA.

A. A&-* ($ 0)i"$i#ti%! t% t)1 !$ #%!i#t Rit!i!

#iti@*! O"#) $* L0@.

1. The territoriality principle applies to ena%le &malea

to exercise 3#risdiction to try and convict 2scar de

#/ for all the victims a%oard the Rosehill.

All crimes committed ithin the territorial Lurisdiction of a state ma/ come efore the

municipal courts and the accused if convicted ma/ e sentenced, even here the offenders are

foreign citi@ens.*!

#he territorial principle covers crimes committed not onl/ upon the land territor/ of the

state ut also on the high seas here the state is the flag state of the vessel. *(#his principle as

recogni@ed as earl/ as 92% in theLotuscase, here the PC0J ruled that a ship on the high seas is

assimilated to the territor/ of the State the flag of hich it flies, for, Lust as in its on territor/,

that State e6ercises its authorit/ upon it, and no other State ma/ do so.*%#he territorial concept

even encompasses not onl/ crimes committed holl/ on the territor/ of a state ut also crimes in

*!S)A1, 0'#5R'A#0:'A- -A1 (!3 7citing'olmes v.@angladesh @inani Corporation B9"9 AC 2,

3%& "% 0-R, pp. 3(!, 3"*Q, per -ord rifths and -ord Grone;1il=inson in ,6 parte Pinochet 7+o! 58 B2***

AC $%, ""& 9 0-R, p. 398.

*(Id! at(!(.

*% S.S. -otus 7r. v. #ur=.8, 92% P.C.0.J. 7ser. A8 'o. * 7Sept. %8, 2! Bhereinafter -otus case.

3(


37/44

hich onl/ part of the offense has occurred in the state.*"

Appl/ing the aove rules, the"osehill, an Amalean;registered vessel on the high seas,*9is

deemed assimilated into the territor/ of Amalea. 4oreover, the deaths and inLuries to the

passengers, hich are necessaril/ part of the offenses charged*against -u@, all occurred hile

the/ ere aoard the "osehill! Such facts sustantiate the applicailit/ of the territorial

principle to grant Amalea proper Lurisdiction to tr/ and convict :scar de -u@. #his principle also

Lustifies AmaleaIs act of charging -u@ for all 2% ho died in the incident, including those ho

elonged to different nationalities.2

$. The passive personality principle 3#stifies the

exercise of 3#risdiction %y &malea over 2scar de

#/.

A state ma/ claim Lurisdiction to tr/ an individual for offences committed aroad hich

*"S)A1, 0'#5R'A#0:'A- -A1, citing theLotus case, PC0J, Series A, 'o. *, 92%, pp. 23, 3*& $ A


38/44

have affected or ill affect nationals of the state.3non as the passive personalit/ principle, it

creates Lurisdiction hen a national of a State is the victim of a crime. $#his doctrine has een

used / States to protect their citi@ens aroad.!1hile the application of this principle still lac=s

uniformit/ among states that practice it,(the validit/ of the passive personalit/ principle is no

longer in ?uestion among scholars.%#his has een accepted / all states and the international

communit/ as eing consistent ith international la."

#he"osehill, an Amalean;registered cruise ship carr/ing !!( passengers, %*M of hom

ere Amaleans, ith 2! cre memers from various nationalities, as navigating close to

56celsior 0sland in response to customersI re?uests and after the shipIs oners had otained

permission therefor.9)oever, upon approaching the 0sland, the$aedalus# a stolen Ritanian;

flagged /acht under the control of :scar de -u@, a Ritanian citi@en, as speeding toards the

0sland and as on a collision course ith the"osehill!2*#his forced the captain of the"osehill

3Id!at (($.

$ avouneli,)unctional *urisdiction in the La( of the Sea.

! John . 4cCarth/, The Passive Personality Principle and Its Use in Combating International Terrorism ,ordham 0nternational -a Journal, 3** 79"98.

( John 4cCarth/Is e6amples. #here are at least seven oserved methods of appl/ing the passive personalit/principle 8 #he principle can e applied roadl/ to cover all crimes, as in the case of the 9%! amended renchPenal Code. 28 #he principleIs use can e limited to specificall/ enumerated crimes, hich is true of the UnitedStatesI )ostage #a=ing Act and Antiterrorism Act. 38 #he principle ma/ e e6ercised over crimes ith a certainminimum degree of punishment, as used / the 0talians in their penal code hich e6cludes crimes for hich theminimum penalt/ is less than one /ear of incarceration. $8 Some countries use the principle onl/ hen the chiefe6ecutive such as the =ing or president, or their representative, commences its assertion, as provided in the penalcodes of 'ora/, inland, 0tal/ and Seden. !8 #he principle ma/ onl/ e alloed hen the accused is found in theterritor/ of the countr/ see=ing to e6ercise Lurisdiction, as in the case of the 0talian penal code. (8 Some countriesappl/ the principle hen the countr/ ith territorialit/ Lurisdiction does not prosecute, such as the Repulic of

orea ith its orean Criminal Code. %8 #he principle can e invo=ed hen the crime is also punished in thecountr/ here it occurred, as is re?uired under the innish penal code as ell as in the las of reece, 'ora/ andSeden.

% John . 4cCarth/, The Passive Personality Principle and Its Use in Combating International Terrorism ,ordham 0nternational -a Journal, 3" 79"98.

" 4A-C:-4 S)A1, 0'#5R'A#0:'A- -A1 (!2 7( thed. 2**"8.

9 Comp. 8 $.

2* Comp. 8 $2.

3"


39/44

to veer toard 56celsior 0sland and to accelerate in order to avoid hat seemed an imminent

collision, causing the ship to stri=e the 0sland ith significant force.2

#he impact caused ruptures to three o6/;fuel tan=s on the 0sland, in turn leading to a series

of e6plosions that tore large holes in the hull of the "osehill and caused fires that spread through

parts of the ship, hich egan to sin=.22 Gefore nightfall, 2% passengers and cre of the

"osehill died from e6plosions, urns, smo=e inhalation, and droning, ith !* others

inLured.23"9 of the dead ere Amalean nationals.2$Appl/ing the passive personalit/ principle,

Amalea had Lurisdiction to tr/ and convict -u@ on account of the Amalean deaths hich are

attriutale to his conduct of the$aedalus!

0t is orth/ to note that AmaleaIs e6ercise of the passive personalit/ principle reflects a

practice of criminal la in the Repulic of orea the orean Criminal Code utili@es the passive

personalit/ principle hen the state ith territorial Lurisdiction does not tr/ the crime, protecting

the offender from doule Leopard/.2!Amalea proceeded ith the trial, noting that Ritanian

criminal la did not e6pressl/ provide for prosecution of offenses committed outside the

countr/Is territorial aters, and therefore -u@ might never e re?uired to anser for his

crimes.2(

2Id.

22 Comp. 8 $3.

23 Comp. 8 $2.

2$Id.

2! John . 4cCarth/, The Passive Personality Principle and Its Use in Combating International Terrorism ,ordham 0nternational -a Journal, 3% 79"98 7citing orean Criminal Code, art. ( 79"388.

2( Comp. 8 $9.

39


40/44

0. Ritania cannot avail of flag7'tate 3#risdiction over

the Ritanian7flagged 8aedal#s to 3#stify their claim

as 2scar de #/ was not the master thereof.

#he asic rule regarding Lurisdiction over ships on the high seas2% is that the flag state

alone ma/ e6ercise such Lurisdiction over the ship.2")oever, this asic principle is suLect to

e6ceptions regarding other vessels, one of hich is in the event of a collision or of an/ other

incident of navigation concerning a ship on the high seas.29 Article of the )igh Seas

Convention, hich modified the previous decision of the predecessor of the 0CJ, the Permanent

Court of 0nternational Justice 7PC0J8, in the Lotus case,3*

declares that penal or disciplinar/

proceedings ma/ onl/ e ta=en against the master or other persons in the service of the ship /

the authorities of either the flag state or the state of hich the particular person is a national, and

that no arrest or detention of the ship, even for investigation purposes, can e ordered / other

than the authorities of the flag state.3

)ad -u@ een the master of the$aedalus# this rule ould operate to give Ritania e6clusive

Lurisdiction over -u@ as regards the incident, given that the ship as fl/ing a Ritanian flag.

)oever, this rule cannot appl/ in the case at hand as -u@ as not the master of the $aedalus

nor as he in the service of the same ship. #he master in maritime la is a natural person hired

2% Convention on the )igh Seas art. , April, 29, 9!", 3 U.S.#. 232& $!* U.'.#.S. 7defining the term FhighseasH8.

2" Convention on the )igh Seas art. ( 79!"8& Convention on the )igh Seas art. 92 79"28.

29 S)A1, 0'#5R'A#0:'A- -A1 ($, 7(thed. 2**"8.

3* 92% P.C.0.J. 7ser. A8 'o. * at 2!& $ A< at !3.

3S)A1, 0'#5R'A#0:'A- -A1 (" 72**"8 7citing )igh Seas Convention art. 8 7#his as reaffirmed in

Article 9% of the 9"2 U'C-:S8. See also 9!2 Convention for the Unification of Certain Rules Relating to Penal

Jurisdiction in matters of Collision& Convention for the Suppression of Unlaful Acts of iolence against the Safet/

of 4aritime 'avigation, 4arch *, 9"", 2% 0-4 (("& (%" U.'.#.S. 22.

$*


41/44

/ contract ho lives on a vessel and manages it and its related matter hile the vessel is

navigating and carr/ing goods or performing services for freights or hire, and the person

appointed and retained commander of a vessel in commercial service and licensed / competent

national authorit/.32:scar de -u@ as not such a master of the$aedalus nor can his control of it

e construed as in the service of the ship since the facts clearl/ stipulate that the ship as stolen,

and that -u@ did not possess an/ license or evidence from competent authorities appointing him

as master of the$aedalus!33

9. Ritania cannot claim 3#risdiction %ased on the

existence of a safety /one aro#nd Excelsior Island.

Article (* of the U'C-:S allos coastal States to construct and authori@e the construction

of artificial islands3$such as 56celsior 0sland. Paragraphs $ and ! thereof gives the coastal State

the right to estalish reasonale safet/ @ones of a ma6imum of !** meters around such artificial

islands.3!Paragraph 2 of the same Article even grants coastal States e6clusive Lurisdiction over

such artificial islands ith regard to customs, fiscal, health, safet/ and immigration las and

regulations.3(

)oever, it is of no moment that the incident occurred ithin !** meters of 56celsior

0sland since the rights and oligations eteen Amalea and Ritania as to the -a of the Sea is

governed / the 9!" Conventions and not the 9"2 U'C-:S, as previousl/ discussed. #he

9!" eneva Conventions do not provide for such safet/ @ones.

32 Cartner > is=e -eiter, The International La( of the Shipmaster3 72**98.

33 Comp. 8 $2.

3$ U'C-:S art. (*.

3!Id!OO $, !.

3(Id!O 2.

$


42/44

4oreover, even assuming arguendo that the U'C-:S is applicale in this case, there is

nothing in the Compromis that ould indicate that Ritania estalished a safet/ @one and such

estalishment cannot e presumed given that Article (*7!8 re?uires due notice to e given of the

e6tent of safet/ @ones.3%

B. A&-* (" !% %3-i2ti%! t% )*t0)! O"#) $* L0@ t%

Rit!i.

1. Extradition does not apply in this case.

#he practice of e6tradition enales one state to hand over suspected or convicted criminals

ho have fled their on countr/ ac= to their state of origin and citi@enship, and is ased on

ilateral treat/ la, as there does not e6ist a similar oligation upon states in customar/ la.3"

iven that there is no e6tradition or mutual legal assistance treat/ e6isting eteen Amalea and

Ritania,39the former state cannot e oliged to e6tradite -u@ to the latter state.

$. Restit#tion wo#ld involve a %#rden o#t of proportion

to the %enefit so#ght to %e achieved.

Article 3! of the 0nternational -a CommissionIs Articles on the Responsiilit/ of States

for 0nternationall/ 1rongful Acts 7FARS01AH8 provides that a State responsile for an

internationall/ rongful act is under an oligation to ma=e restitution, that is, to re;estalish the

situation hich e6isted efore the rongful act as committed, provided and to the e6tent that

3% U'C-:S art. (* O !.

3" S)A1, 0'#5R'A#0:'A- -A1 ("(. Citing See e.g. the Joint


43/44

restitution does not involve a urden out of all proportion to the enefit deriving from restitution

instead of compensation.$*

Restitution ma/ ta=e the form of material restitution such as release and return of persons

rongl/ detained,$ as ell as the form of Ludicial restitution such as the rescinding or

reconsideration of a Ludicial measure rongfull/ adopted in respect of the person of a

foreigner.$2

0n the case at hand, restitution in the form of returning -u@ to Ritania ould e grossl/ out

of proportion to the enefit of tr/ing him regarding the "osehill incident, since Ritanian criminal

la did not provide for prosecution of offenses committed outside the countr/Is territorial

aters.$3Such return ould amount to setting him free, never having to anser for his crimes.

#his Court cannot countenance such an inLustice to occur.

$* ARS01A art. 3!.

$ Commentaries,ILC $raft .rticles on the "esponsibility of States for Internationally /rongful .cts#( 72**8.

$2Id! at 9%.

$3 Comp. 8 $9.

$3


44/44

CONCLUSIONANDPRAYERFORRELIEF

#he State of Amalea respectfull/ re?uests that this Court adLudge and declare that

. RitaniaIs acts and omissions ith respect to the development of 56celsior 0sland

violated international la, therefore, Amalea is entitled to see= compensation from

Ritania for economic losses caused / the landslide.

2. AmaleaIs e6clusive onership of the rec= of the Cargastand all artifacts recovered

from it and RitaniaIs deplo/ment of patrol vessels to the site of the Cargastviolated

international la.

3. Amalean 'av/Is pursuit of :scar de -u@ into RitaniaIs 55+, and his suse?uent

arrest, ere in compliance ith international la.

$. Amalea had Lurisdiction to tr/ and convict -u@ for criminal actions related to the

"osehillincident, and that it has no oligation to return him to Ritania.

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