735A

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 APPLICANT

2014 Philip C JessupInternational 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.

iv

QUESTIONS PRESENTED

The State of Amalea respectfully asks this Court:

1. Whether Ritania’s acts and omissions with respect to the development of

Excelsior Island violated international law, and if so, whether Amalea is entitled

to seek compensation from Ritania for economic losses caused by the landslide.

2. Whether Amalea has exclusive ownership of the wreck of the Cargast and all

artifacts recovered from it and whether Ritania’s deployment of patrol vessels to

the site of the Cargast violated international law.

3. Whether the Amalean Navy’s pursuit of Oscar de Luz into Ritania’s EEZ, and his

subsequent arrest, were in compliance with international law

4. Whether Amalea had jurisdiction to try and convict Luz for criminal actions

related to the Rosehill incident, and if so, whether it has obligation to return him

to Ritania.

v

STATEMENT OF FACTS

Amalea, a developing and newly industrialized island State is separated from the

Republic of Ritania by the Strait of Malachi. The strait contains abundant fish and shellfish

stocks Amalean fishing vessels have historically plied almost every part of the strait, regularly

coming within less than 40 nautical miles of the Ritanian coast.

In 1958, both countries signed the four Geneva Conventions on the Law of the Sea.

Amalea and Ritania ratified all four Conventions. Amalea signed UNCLOS in June 1983, but

has never ratified it. And on June 13, 1984, the President of Amalea, by proclamation, asserted

his country’s claim to a 200 nautical mile EEZ.

Amalea developed and implemented sustainable fishing practices. In 1986, its legislature

enacted the Coastal Fisheries Protection Act, intending to regulate any activities that posed risks

to fish stocks. However, Ritania objected to any potential interpretation of the Act as applying to

any part of the Strait of Malachi.

Amalea and Ritania became State Parties to the Malachi Gap treaty dated March 30,

which objective 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.

Amalea’s fishing industry directly employed over 250,000 people and supplied the

domestic market, supplying 40% of the protein content of Amalean diet and responsible for

exports generating more than 5% of the country’s $45 Billion GDP. The Amalean people prized

the flesh of the Dorian wrasse for its historical and traditional value. The Amalean Ministry of

vi

Trade has reported that domestic and foreign sales of the fish generated some $160 Million

annually by 2000 and exporters have regularly projected higher returns over the next decades.

In late 2006, Ritanian billionaire Esmeralda Kali announced her intention to finance the

construction of Excelsior Island on the Sirius Plateau located just outside the Malachi gap. The

two billion cubic meters of sand and rock for the construction would be dredged entirely from

areas located within the Malachi Gap. Amalea’s Foreign Minister summoned the Ritanian

Ambassador for a meeting, where he made clear that such a large-scale project cannot be

undertaken without the consent of Amalea and Ritania, in accordance with the letter and spirit of

the Treaty. Amalea maintained that Ritania could not permit the dredging without at least a full

EIA specifically covering all of its potential impacts. Amalea expressed particular concern

regarding the fate of the Dorian wrasse, given the proximity of its only known breeding ground

to the proposed dredging in the Sirius Plateau.

In early 2008, Excelsior Island and Gas Project Limited (EIGP) submitted an EIA for the

Project, which does not address the potential impacts of the dredging program on the waters of

the Malachi Gap or on the fish species. The Amalean Environmental Protection Agency

forwarded a report prepared by the International League for Sustainable Aquaculture (ILSA) to

the Ritanian Ambassador, which concluded that any major dredging activity in the Malachi Gap

could potentially prove catastrophic for native species and ecosystems such as a great possibility

of a landslide.

On December 10, 2009, as direct result of the dredging, an underwater landslide

occurred, caused by over-steepening of the slope in a geologically weak part of the Sirius

Plateau. Results of the program of an emergency monitoring program developed and

implemented by ILSA revealed that the landslide had an immediate and significant negative

vii

impact on the known Dorian wrasse population. Amalean fishing companies to the Ministry of

Fisheries by the end of 2010 and 2011 had fallen. By February 2012, ILSA declared the Dorian

wrasse to be an endangered species.

In January 2010, a Ritanian vessel conducting sonar mapping operations in the Malachi

Gap to the west of the Amalean Trench discovered the wreck of the Amalean schooner Cargast

approximately 80 nautical miles from the nearest point on the Amalean coast. Cargast’s captain

was Baldric Verdigris, an Amalean explorer and cartographer, who carried a letter of marque

from the King of Amalea granting the ship to him for use to bring glory to the Kingdom of

Amalea.

Amalean Prime Minister Beesley made an announcement claiming the Cargast and all of

the cargo that might be on board as property of Amalea, to be held in trust for all humankind.

Milo Belleza, with whom Amalea has negotiated a salvage contract, reported that the hull

structure of the Cargast was at risk of catastrophic collapse.

On 13 February 2011, the Rosehill, an Amalean-registered cruise ship, departed from

Amalea and headed towards Ritania. Its passengers had obtained permission for the vessel to

navigate close to Excelsior Island. As the Rosehill approached Excelsior Island, the Daedalus, a

stolen Ritanian-flagged yacht under the control of Oscar de Luz, 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 with the captain’s and the crew’s heroic efforts, they tried to

maneuver the Rosehill away in order to avoid an imminent collision, they were forced to veer

toward the Island and the ship struck the island with significant force and immediately the

Rosehill’s captain radioed the Amalean authorities about the incident. The impact tore large

holes in the hull of the Rosehill and caused fires that spread through parts of the ship and it

viii

began to sink. Before nightfall, 127 passengers and crew of the Rosehill had died, 89 of which

were Amalean nationals, and 150 others were injured.

Within minutes of the Rosehill’s distress call, the Amalean Coastal Protection Service

(ACPS) issued an alert describing the Rosehill collision as apparently caused by a yacht that had

hurriedly left the scene noting that the stolen yacht had been seen speeding away bearing west

northwest and the persons on board are suspected of human trafficking.As the Daedalus drew

within Amalea’s coastline, it was picked up by the Icarus, an Amalean Navy Fast Response

Cutterand set out to intercept the Daedalus.When the Icarus was within visual range, Captain

Haddock issued ordered the Daedalus to stop. Instead, Luz turned the Daedalus and sped

towards Ritania. Haddock pursued the Daedalus. In an attempt to get the Icarus to veer away,

Luz suddenly steered the Daedalus straight towards the Icarus. Captain Haddock kept his vessel

on course and the ships collided. The Icarus suffered some damage, but the Daedalus began to

sink rapidly. Captain Haddock’s crew captured Luz, and declared him under and brought him on

board the Icarus.

Amalea’s Attorney General concluded that under the Amalea Penal code which

specifically includes offenses committed in the Malachi Gap, had jurisdiction to try Luz for

violations of Amalean criminal laws. He was charged with 127 counts of murder as well as other

various crimes. Ritania immediately filed a formal protest demanding for the return of

LuzAmalea declined to repatriate Luz, noting that Ritanian criminal law did not expressly

provide for prosecution of offenses committed outside the country’s territorial waters. Amalea

put him on trial and Luz was ultimately convicted of nearly all of the charges against him, and

this was affirmed by the Court of Criminal Appeals in June 2012, and by Amalea’s Supreme

Court in January 2013.

ix

In February 2013, Amalea’s Ministry of Fisheries published a report concluding that

projected commercial exploitation of the Dorian wrasse would have amounted to no less than

USD 250 million annually over the next five years. Being unable to fish the Dorian wrasse for

the foreseeable future, Amalea demanded reparations from Ritania for the loss of this revenue.

The parties decided to refer the matter involving the loss of the Dorian wrasse, along with

the unresolved disputes involving the Cargast and the Rosehill, to the International Court of

Justice. 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, which takes no position on any of

the issues in dispute.

x

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.

xi

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.

xii

PLEADINGS

Submission 1 (Applicant)

RITANIA’S 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.

I. Ritania’s acts and omissions with respect to the development of Excelsior Island violated

international law.

A. Ritania’s acts and omissions constituted breaches of its international

obligations.

1. 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.

The dredging of oceanic sand and rocks within the Malachi Gap area that would

adversely affect the fate of the Dorian wrasse1 constitutes a breach of Article 12 the Malachi Gap

Treaty.2 Despite a report published by the Amalean Environmental Protection Agency, prepared

1 Compromis ¶ 18 [hereinafter Comp.].2 Comp. Appendix B, art. 12(d).

1

by the International League for Sustainable Aquaculture (ILSA)3 and which was forwarded to the

Ritanian Ambassador,4 Ritania has still proceeded with the dredging after the approval of its

EIA.5 The report concluded that any major dredging activity in the Malachi Gap would likely

interfere with ongoing research and conservation efforts, and could potentially prove catastrophic

for native species and ecosystems. It also suggested that because of the presence of gas hydrates

at the foot of the Sirius Plateau, an underwater landslide could threaten particularly grave

damage.6 Thus, dredging would prejudice Amalea’s interest in the protection of fisheries which

is, consequently, in breach of the Malachi Gap Treaty.

2. Ritania failed its obligations under customary international environmental law

to conduct a comprehensive Environmental Impact Assessment (EIA) to include

the impact of the dredging to the fish population within the Malachi Gap.

As part of the Ritanian licensing process, EIGP was required to conduct an environmental

impact assessment (EIA) for the Excelsior Island project. However, the EIA did not address the

potential impacts of the dredging program on the waters of the Malachi Gap, or on fish species

living there.7 Under the 1991 Convention on Environmental Impact Assessment in a

Transboundary Context, an EIA must contain the minimum requirements, one of which is a

description of the potential environmental impact of the proposed activity and its alternatives and

an estimation of its significance.8 Since EIGP failed to comply with the minimum content

3 Comp. ¶ 25. 4 Id.5 Comp. ¶ 27.

6 Comp. ¶ 25.7 Comp. ¶ 23.8 See Convention on Environmental Impact Assessment in a Transboundary Context Appendix II (1991) [hereinafter CEIATC].

2

requirement in its EIA for not addressing the potential impacts of the dredging program on the

waters and the fish species of the Malachi Gap, Ritania failed its obligations under customary

international environmental law for approving such EIA and subsequently granting EIGP permit

to dredge.

II. Ritania has a duty to compensate Amalea for the economic losses it suffered due to the

landslide.

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

Responsibility of States for International Wrongful Acts (ARSIWA).

The Articles on the Responsibility of States for International Wrongful Acts (ARSIWA)

was adopted by the International Law Commission at its 53rd session in 2001.9 It contains the

underlying principle that an internationally wrongful act of a state entails international

responsibility.10 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.11 Such

internationally wrongful act is attributable to the State when it falls under the following

circumstances: (1) when it is committed by a state organ,12 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

9 UN LEGISLATIVE SERIES, Materials On The Responsibility Of States For Internationally Wrongful Acts vii, ¶ 3.10 Articles on the Responsibility of States for International Wrongful Acts art.1 [hereinafter ARSIWA].11 Id. art. 2.12 Id. art. 4(2).

3

the State;13 (2) when it is committed by a person or entity, not a State organ, but which is

empowered by the law of that State to exercise elements of the governmental authority, provided

that such person or entity is acting in that capacity in the particular instance;14 (3) when it falls

under 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;15 (4) when it involves 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; (5) when such

conduct is carried out on the instructions of a State organ or under its direction or control; 16 (6)

when it constitutes conducts involving elements of governmental authority, carried out in the

absence of the official authorities;17 (7) when it is a special case involving the conduct of and

insurrectional or other movement which subsequently becomes the new Government of the State

or succeeds in establishing a new State;18 and finally (8) when such conduct is not attributable to

the State under one of the earlier articles but which is nonetheless adopted by the State, expressly

or by conduct, as its own.19 An act or omission constitutes a breach of an international obligation

when such conduct attributable to the State is not in conformity with what is required of it by that

obligation, regardless of its origin or character.20 Moreover, the characterization of a conduct

attributable to the State as internationally wrongful is independent from its characterization in the

internal law of the state concerned.21

13 Id. art. 4 (1).14 Id. art. 5.15 Id. art. 6.16 Id. art. 8, 17 Id. art. 9, 18 Id. art. 10.19 Id. art. 11.20 Id. art. 12.21 Id. art. 3.

4

B. Having breached its international obligations, Ritania committed

internationally wrongful acts and therefore must take responsibility by

compensation.

1. The acts and omissions were attributable to Ritania.

The ARSIWA provides that the conduct of any State organ shall be considered an act of

that State under international law, whether the organ 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. An organ

includes any person or entity which has that status in accordance with the internal law of the

State.22 Under Ritanian law, The Department of Resource Management, together with other

government agencies claiming a specific interest, reviews an EIA for a proposed marine

development project. The department also issues a license authorizing the developer to proceed if

all reviewing agencies are satisfied with the EIA and other information relating to the project. 23

In performing such independent regulatory role,24 the Department of Resource Management is

undeniably acting as a state organ of Ritania. All of the Department of Resource Management’s

acts and omissions are therefore attributable to the state of Ritania including the approval of an

incomplete EIA and the granting of the permit to dredge in the Malachi Gap area.

22 Id. art. 4.23 Comp. ¶ 23.24 Comp. ¶ 25.

5

2. Ritania is responsible to compensate Amalea for the economic loss it

has suffered as a result of the underwater landslide caused by 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 without incident, an underwater landslide was detected

which was, by all accounts, the direct result of the dredging. This has caused extremely high

water turbidity levels which persisted for several weeks and a dissociation of gas hydrates at the

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

including carbon dioxide and methane, in shallow waters throughout the Sirius Plateau.25 The

underwater landslide has brought an adverse transboundary impact26 to Amalea for its immediate

and significant negative impact on the known Dorian wrasse population.27 This had lead to the

decrease of the total catch of Dorian wrasse reported by the end of 2010 and 2011 which had

fallen to 25% and 15%, respectively, of the levels reported in 2000. Furthermore, in February

2012, ILSA has declared the Dorian wrasse to be an endangered species, and recommended that

commercial fishing be suspended indefinitely until its population was regenerated.28

25 Comp. ¶ 28.26 CEIATC art. 1(viii) (1991) (defining “Transboundary impact” as any impact, not exclusively of a global nature, within an area under the jurisdiction of a Party caused by a proposed activity the physical origin of which is situated wholly or in part within the area under the jurisdiction of another Party).27 Comp. ¶ 29.28 Comp. ¶ 30.

6

ii. Ritania is obligated to compensate the economic damage it has

caused Amalea as provided in Article 36 of ARSIWA.

ARSIWA provides that the State responsible for an internationally wrongful act is under

an obligation to compensate for the damage caused thereby, insofar as such damage is not made

good by restitution.29 Such damage may be material or moral.30 The damage caused by the

underwater landslide which is the decrease in the population of the Dorian wrasse cannot be

made by restitution due to its material impossibility.31 Compensation also covers any financially

assessable damage including loss of profits insofar as it is established32 thus, covering Amalea’s

economic losses.

Submission 2 – Applicant

AMALEA HAS EXCLUSIVE OWNERSHIP OF THE WRECK OF THE CARGAST AND ALL

ARTIFACTS RECOVERED FROM IT, AND RITANIA’S DEPLOYMENT OF PATROL

VESSELS TO THE SITE OF THE CARGAST VIOLATED INTERNATIONAL LAW

I. 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 (“UCH Convention”).

29 ARSIWA art. 36 (1).30 Id. art. 31 (2).31 Id. art. 35. 32 ARSIWA art. 36 (2).

7

A. The UCH Convention which governs Amalea’s conduct of the wreck.

Article 1(1)(a) defines “underwater cultural heritage” as being all traces of human

existence having a cultural, historical or archaeological character which have been partially or

totally under water, periodically or continuously, for at least 100 years,33 including vessels and

their cargo or other contents, together with their archaeological and natural context.34

The rich history surrounding the Cargast has much to do with the deeds of its captain,

Baldric Verdigris35 and in the precious artifacts that it contained.36 At the time the Cargast went

down, Verdigris held a letter of marque from the King of Amalea, who granted the ship to him

for use “to bring glory to the Kingdom of Amalea.”37 Historians are unanimous in their

assumption that the cargo that went down with the Cargast contained a vast array of precious

stones, gold and other coinage, and bejeweled artifacts obtained not only during the Sack of

Helios of 4 March 1510 but also during the trading mission that preceded it; as well as, in

particular, the Sacred Helian Coronet, which was placed on the heads of Ritanian monarchs

during their coronation ceremonies, and which over the centuries has acquired mythical

importance in Ritanian iconography, and a stylized image of the Coronet occupies the center of

the flag of Ritania to the present day.38

33 UCH Convention art. 1 ¶ 1(a).34 Id. ¶ 1 (a)(ii).35 Comp. ¶ 31.36 Comp. ¶ 33.37 Id.38 Comp. ¶ 33.

8

Verdigris died at sea on 10 March 1510, when the Cargast disappeared in the Strait of

Malachi during a storm.39 Thus, taking into consideration their cultural and historical

significance as well as their more than 500 years of being lost underwater, Article 1(1)(a) of the

UCH Convention would classify the Cargast and all its contents as underwater cultural heritage.

Amalea is a State Party to the UCH Convention.40 As such, the Convention governs the

conduct of Amalea with respect to any underwater cultural heritage found within its

jurisdiction.41

B. Milo Bellezza’s salvage of the Cargast was lawful and allowable under the UCH

Convention.

Amalea is a State Party to the 1989 International Convention on Salvage (“Salvage

Convention”).42 The Salvage Convention sought to codify the traditional principles in the law of

salvage, including those embodied in the 1910 Brussels Convention for the Unification of

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

modern practice and jurisdiction principles as well as, in particular, to respond to growing

international concerns relating to the protection of the marine environment.43

39 Id.40 Comp. ¶ 52; See UCH Convention art. 1 ¶ 2(a) (defining “State Parties” as States which have consented to be bound by the Convention and for which the Convention is in force).41 UCH Convention art. 2.42 Comp. ¶ 52.43 WILLIAM A. O’NEILL, Foreword, TRAVAUX PREPARATOIRES OF THE CONVENTION ON SALVAGE (1989).

9

A major breakthrough in the UCH Convention is the rejection of the law of salvage and

the law of finds in seizing underwater cultural heritage.44 However, there is an exception

provided in Article 4 thereof which applies squarely to Milo Bellezza’s retrieval of the Cargast.

Article 4 provides that any activity relating to underwater cultural heritage45 shall not be subject

to the law of salvage and the law of finds, unless it:

1. is authorized by the competent authorities,

2. is in full conformity with this Convention, and

3. ensures that any recovery of the underwater cultural

heritage achieves its maximum protection.46

Regarding the first element, competent authorities, according to the UCH Convention, are

those established by States Parties to establish, maintain and update an inventory of underwater

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

underwater cultural heritage; as well as research and education.47 It is worthy to note that the

Compromis is bereft of any evidence on either the presence or absence of any such competent

authorities on the part of Amalea. What is clear, however, is that the State of Amalea itself

contracted with Milo Bellezza48 to explore the wreck and recover the items therefrom.49 The

Amalean Cultural Affairs Ministry would later on describe Bellezza as the “salvor of the wreck

of the Cargast”50 “acting as agent for and on behalf of the Republic of Amalea.”51

44 Markus Rau, The UNESO Convention on Underwater Culture Heritage and International Law of the Sea, 405.45 UCH Convention art. 1 ¶ 6.46 Id. art. 4.47 Id. art. 22 ¶ 1.48 Comp. ¶ 36.49 Id.50 Comp. ¶ 38.51 Id.

10

Regarding the second element, Milo Bellezza’s salvage of the Cargast were in full

compliance with the UCH Convention. The obligations that Amalea has under the Convention

may be summarized through objectives of the UCH Convention.52 These include the duty to

cooperate in the protection of the underwater cultural heritage,53 the obligation to preserve

underwater cultural heritage for the benefit of humanity,54 the principle of in situ preservation as

the first option before allowing or engaging in activities directed at underwater cultural

heritage,55 the prohibition of commercial exploitation of the underwater cultural heritage,56 and

the duty to give proper respect to all human remains located in maritime waters.57 None of these

objectives of the Convention were ever undermined in Milo Bellezza’s salvage of the Cargast.

Regarding the third element, the recovery of the Cargast was necessary for its protection

and preservation. The hull structure of the Cargast was at risk of catastrophic collapse, and

Amalea immediately contracted with Milo Bellezza58 to explore the wreck and recover the items

therefrom.59

C. Amalea has a better right to the wreck under the law of finds.

52 Markus Rau, The UNESCO Convention on Underwater Cultural Heritage and International Law of the Sea, 404.53 UCH Convention art. 2 ¶ 2.54 Id., ¶ 3.55 Id., ¶ 5.56 Id., ¶ 7.57 Id., ¶ 9.58 Comp. ¶ 36.59 Comp. art. 36.

11

While the purpose of salvage law is to encourage the rescue of property in marine peril,60

the object of the law of finds is the vesting of title after the reduction of abandoned property to

possession.61 In order to apply the law on finds in the context of shipwrecks, three elements must

be present:

1. Intent to reduce property to possession;

2. Actual possession; and

3. Abandonment of the original owner.62

Regarding the first element, Amalea’s intent to reduce the property to possession is

evident in that Amalean Prime Minister Beesley responded to the discovery by claiming that the

Cargast and all of the cargo are the property of Amalea, to be held in trust for all humankind.63

He even added that the wreck should be protected from those who have no right to it.64

Subsequently, Amalea’s Cultural Affairs Ministry also declared that Amalea remains in fact and

at law the owner of the wreck of the Cargast and its cargo.65

Regarding the second element, Amalea obtained actual possession of the Cargast and its

cargo when it successfully salvaged the wreck and retrieved the artifacts, including the Sacred

Helian Coronet, through Milo Bellezza.66

60 Justin S. DuClos, A Conceptual Wreck: Salvaging the Law of Finds, 38 n. 1 Journal of Maritime Law and Commerce 26, January 2007.61 Mark A. Wilder, Application of Salvage Law and the Law of Finds to Sunken Shipwreck Discoveries, 67 n. 1 Defense Counsel Journal 93.62 R.M.S. Titanic, 435 F.3d at 532 n.3.63 Comp. ¶ 34.64 Id.65 Comp. ¶ 38.66 Id. ¶ 36.

12

Regarding the third element, 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.67

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 trading mission to recently discovered overseas

territories.68 Moreover, the crew of the Cargast were 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.69 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.70 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.71 The Cargast has remained undiscovered without

67 Dieter Fleck, The Handbook of International Humanitarian Law (2013).68 Comp. ¶ 33.69 Comp. ¶ 32.70 Gary Sturgess, Privateering and Letters of Marque, 5 n. 1 Journal of International Peace Operations 38, July-August 2009.71 Peter Hess, UNESCO-Legalized Plunder? (Nov. 22, 1998), http://www.imacdigest.com/unesco.html.

13

any published claims until only after the discovery in 2010.72 Therefore, since the Cargast was a

commercial vessel and it was lost at sea for more than 500 years, it is deemed abandoned.

These three elements concur to vest Amalea with title of ownership under the law of

finds, the application of which does not contravene the UCH Convention in the facts at hand.

II. Ritania’s deployment of patrol vessels to the site of the Cargast violated international

law.

A. The United Nations Convention on the Law of the Sea (“UNCLOS”) is applicable in

the case at bar.

The consent of a State to be bound by a treaty is expressed by ratification when the treaty

provides for such consent to be expressed by means of ratification.73 The UNCLOS is subject to

ratification by States.74 In April 1983, Ritania signed and ratified the UNCLOS.75 Thus, Ritania is

bound by the treaty.76

B. The presence of a Ritanian navy vessel in Amalea’s EEZ does not constitute innocent

passage.

72 Comp. ¶ 31.73 Vienna Convention on the Law of Treaties, art. 14 ¶ 1(a) [hereinafter VCLT].74 United Nations Convention on the Law of the Sea art. 306 [hereinafter UNCLOS].75 Comp. ¶ 10.76 VCLT art. 11.

14

The regime of innocent passage, in accordance with Part II, section 3, shall apply in

straits used for international navigation between a part of the high seas or an exclusive economic

zone and the territorial sea of a foreign State.77 The purpose of the Ritanian navy vessel in the

EEZ is an activity not having a direct bearing on passage,78 in that in ¶40, the Ritanian navy

began to patrol the area of the wreck, which patrol continues up to this day. The purpose of the

patrol, as can be deduced from ¶35, is Ritania reserving its right to send naval patrol vessels to

the area to prevent the desecration of national heritage. Ultimately, an activity considered to

violate innocent passage in the territorial sea cannot be considered to be a “peaceful activity” in

the EEZ.79

The key principle of the UNCLOS is that foreign war fleets have open access to the EEZ,

since in effect it is an integral part of the freedom of navigation and overflight.80 Some coastal

states object to military activity in their EEZ by expressing concern for their national security

and their resource sovereignty.81 The exercise of this right, however, is subject to some

restrictions in reference to that zone, such as the limitations of a political nature and those that

are derived from economic rights.82

77 UNCLOS art. 19 ¶ 1(b).78 Id., ¶ 2(l).79 JI GUOXING, THE LEGALITY OF THE “IMPECCABLE INCIDENT” CHINA SECURITY, 5 n. 2 Spring 2009 19, World Security Institute (2009). 80 JI GUOXING, Analysis from the East-West Center ,Asia Pacific Issues, “ROUGH WATERS IN THE SOUTH CHINA SEA: NAVIGATION ISSUES AND CONFIDENCE-BUILDING MEASURES 4.81 Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS, Utrecht Journal of International and European Law 25.82 Analysis from the East-West Center | Asia Pacific Issues | “Rough Waters in the South China Sea: Navigation Issues and Confidence-Building Measures | Ji Guoxing | p. 4

15

State practice shows that some states, invoking Article 310,83 made declarations on the

issue of military activities in the EEZ. For instance, Brazil, Bangladesh, Cape Verde, Malaysia,

India and Pakistan have all expressed concern over the ability of foreign military vessels to

engage in certain activities within the EEZ. In their declarations, these states require consent

before a foreign ship may conduct military activities.84

C. Amalea possesses sovereign rights for the purpose of exploring and exploiting,

conserving and managing the exclusive economic zone, as indicated in Article 56(1)

(a) on the UNCLOS.

The allocation of rights in the EEZ, as set out in Article 56(1)(a) of the UNCLOS forms

part of customary international law.85 Under the said article, Amalea possesses sovereign rights

with regard to other activities for the economic exploitation and exploration of the zone. Thus,

Amalea has such rights over the wreck, which was located approximately 80 nautical miles from

the nearest point of its coast.86

Submission 3 – Applicant

83 UNCLOS art. 309 does not preclude a State, when signing, ratifying or acceding to this Convention, from making declarations or statements, however phrased or named, with a view, inter alia, to the harmonization of its laws and regulations with the provisions of this Convention, provided that such declarations or statements do not purport to exclude or to modify the legal effect of the provisions of this Convention in their application to that State.84 Jing Geng, The Legality of Foreign Military Activities in the Exclusive Economic Zone under UNCLOS , Utrecht Journal of International and European Law 25.85 Gerd Winter, Towards Sustainable Fisheries Law: A Comparative Analysis 4.86 Comp. ¶31

16

THE AMALEAN NAVY’S PURSUIT OF OSCAR DE LUZ INTO RITANIA’S EEZ, AND

HIS SUBSEQUENT ARREST, WERE IN COMPLIANCE WITH INTERNATIONAL LAW.

I. AMALEA WAS ENTITLED TO PURSUE OSCAR DE LUZ, INVOKING THE RIGHT TO

HOT PURSUIT UNDER ARTICLE 23 OF THE 1958 GENEVA CONVENTION ON THE

HIGH SEAS (HIGH SEAS CONVENTION).

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.87 This is an example of a convention requiring simple signature,88 where a

signing State does not undertake positive legal obligations under the treaty pending ratification. 89

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,90 only Ritania ratified it as of

the time of the case at hand.91 Consequently, Amalea cannot yet be considered a state party to the

UNCLOS.92

87 UNCLOS. art. 306 ¶ 1(b)(c)(d)(e); art. 305, ¶ 1(f).88 Olivier Corten & Pierre Klein, Commentary, The Vienna Conventions on the Law of Treaties, 218 (2011). (Signature is referred to as “simple” when subject to ratification, acceptance or approval.)

89 UN Treaty Handbook, 5 (2012). See also Vienna Convention, art. 18 (1969) (indicating State’s intention to take steps to express its consent to be bound by the treaty at a later date).

90 Comp. ¶¶ 10, 11.91 Comp. ¶ 11. 92 VCLT art. 2(b)(g).

17

2. Amalea and Ritania are both parties to the 1958 Geneva

Conventions on the Law of the Sea (1958 Geneva Conventions).93

Article 311 of the UNCLOS provides that this Convention shall prevail, as between States

Parties, over the 1958 Geneva Conventions.94 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.95

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.96 As discussed

previously, while both Amalea and Ritania are parties to the 1958 Geneva Conventions, only

Ritania is a party to the 1982 UNCLOS.97 Hence, the 1958 Geneva Conventions, as the treaty to

which both states are parties, govern the rights and obligations between Amalea and Ritania

insofar as the Law of the Sea is concerned.

B. The laws and regulations of Amalea were violated, entitling it to hot

pursuit and arrest.

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.98 This concept of hot pursuit, as defined by

93 Geneva Conventions on the Law of the Sea (1958) (comprising 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) [hereinafter GCLS].94 UNCLOS art. 311.95 Myron Nordquist, Commentary, United Nations Convention on the Law of the Sea 1982, 235 (1989).96 VCLT, art. 30(4)(b).97 Comp. ¶¶ 10, 11.98 Allen, Doctrine of Hot Pursuit 1 (citing The King v. the Ship North, 37 S. C. R. 385 (1905-06)).

18

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.99

The International Tribunal for the Law of the Sea, in the M/V Saiga (No.2) Case,

recognized that, first, there must exist some domestic law that is applicable to the ship-violator100

(the Daedalus), and second, the application of that law must be compatible with International

Law.101 The Tribunal noted that the existing international rule in relation to the circumstances

was the UNCLOS.102 However, since Amalea is not a party to the UNCLOS and that both the

states of Amalea and Ritania are parties to the 1958 Geneva Conventions, the latter will govern

as have been previously discussed.

C. The arrest of Oscar de Luz was valid, being incidental to a lawful exercise

of hot pursuit.

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.103

To be lawful, the pursuit must conform to the following elements:

1. The competent authorities of the coastal State have good reason

to believe that the ship has violated the laws and regulations of

that State; provided that if the foreign ship is within a contiguous

99 Nicholas M. Poulantzas, The Right of Hot Pursuit in International Law xxviii.100 International Tribunal for the Law of the Sea, Saint Vincent and the Grenadines v. Guinea, Judgment, 1 July 1999, ¶ 122.101 Id., ¶ 126.102 Id., ¶ 127.103 Saiga Case, para. 150. International judgment

19

zone, as defined in Article 24 of the Convention on the

Territorial Sea and the Contiguous Zone, the pursuit may only be

undertaken if there has been a violation of the rights for the

protection of which the zone was established;

2. Such pursuit must be commenced when the foreign ship or one of

its boats is within the internal waters, the archipelagic waters,

the territorial sea or the contiguous zone of the pursuing State;

and

3. The pursuit may only be continued outside the territorial sea or

the contiguous zone if the pursuit has not been interrupted.104

Regarding the first element, the Amalean Navy was informed by the Amalean Coastal

Protection Service (ACPS) by issuing an alert describing the Rosehill collision as apparently

caused by a yacht that had hurriedly left the scene, and that the yacht had been seen speeding

away bearing west northwest, creating a danger for other vessels.105 Moreover, the ACPS alert

Captain Haddock of the Icarus received said, “Ritanian flagged yacht Daedalus last seen fleeing

Excelsior Island towards Amalea. Yacht is stolen and persons on board are suspected of human

trafficking.”106 The sinking of the Rosehill as well as the suspicions of human trafficking

constitute valid grounds for the Amalean Navy to believe that the Daedalus had violated the laws

and regulations of Amalea, as well as the rights for the protection of which the zone was

104 UNCLOS art. 111.105 Comp. ¶ 44.106 Comp. clarifications ¶ 44.

20

established.

Regarding the second element, the pursuit was commenced when the Daedalus was within

23 nautical miles from Amalea’s coastline, well within the contiguous zone of Amalea.107

Regarding the third element, the Daedalus was only able to reach the uncontested

Exclusive Economic Zone (EEZ) of Ritania before it sank, and Luz was subsequently arrested.

Up to that point, the pursuit remained uninterrupted.108

Submission 4 – Applicant

AMALEA HAD JURISDICTION TO TRY AND CONVICT LUZ FOR CRIMINAL ACTIONS

RELATED TO THE ROSEHILL INCIDENT, AND HAS NO OBLIGATION TO RETURN

HIM TO RITANIA.

I. Amalea had jurisdiction to try and convict Ritanian citizen Oscar de Luz.

A. The territoriality principle applies to enable Amalea to exercise jurisdiction to try and

convict Oscar de Luz for all the victims aboard the Rosehill.

107 Comp. ¶ 45.108 Interruption meaning.

21

All crimes committed within the territorial jurisdiction of a state may come before the

municipal courts and the accused if convicted may be sentenced, even where the offenders are

foreign citizens.109

The territorial principle covers crimes committed not only upon the land territory of the

state but also on the high seas where the state is the flag state of the vessel.110 This principle was

recognized as early as 1927 in the Lotus case, where the PCIJ ruled that a ship on the high seas is

assimilated to the territory of the State the flag of which it flies, for, just as in its own territory,

that State exercises its authority upon it, and no other State may do so.111 The territorial concept

even encompasses not only crimes committed wholly on the territory of a state but also crimes in

which only part of the offense has occurred in the state.112

Applying the above rules the Rosehill, as an Amalean-registered vessel on the high

seas,113 is deemed assimilated into the territory of Amalea. Moreover, the deaths and injuries to

the passengers, which are necessarily part of the offenses charged114 against Luz, all occurred

109 SHAW, INTERNATIONAL LAW 653 (citing Holmes v. Bangladesh Binani Corporation [1989] 1 AC 1112, 1137; 87 ILR, pp. 365, 380–1, per Lord Griffiths and Lord Browne-Wilkinson in Ex parte Pinochet (No. 3) [2000] 1 AC 147, 188; 119 ILR, p. 139).

110 Id., 656.111 Lotus, page 25

112 SHAW, INTERNATIONAL LAW, citing the Lotus case, PCIJ, Series A, No. 10, 1927, pp. 23, 30; 4 AD, pp. 153, 159, and Judge Moore, ibid., p. 73; the Harvard Research Draft Convention on Jurisdiction with Respect to Crime, 29 AJIL, 1935, Supp., p. 480 (article 3), and Akehurst, ‘Jurisdiction’, pp. 152–3. See Lord Wilberforce, DPP v. Doot [1973] AC 807, 817; 57 ILR, pp. 117, 119 and R v. Berry [1984] 3 All ER 1008. See also Strassheim v. Dailey 221 US 280 (1911); US v. Columba-Colella 604 F.2d 356 and US v. Perez-Herrera 610 F.2d 289.

113 Comp. ¶ 41.

114 Comp. ¶ 47.

22

while they were aboard the Rosehill.115 Such facts substantiate the applicability of the territorial

principle to grant Amalea proper jurisdiction to try and convict Oscar de Luz. This principle also

justifies Amalea’s act of charging Luz for all 127 who died in the incident, including those who

belonged to different nationalities.116

B. The passive personality principle justifies the exercise of jurisdiction by Amalea over

Oscar de Luz.

A state may claim jurisdiction to try an individual for offences committed abroad which

have affected or will affect nationals of the state.117 Known as the passive personality principle, it

creates jurisdiction when a national of a State is the victim of a crime.118 This doctrine has been

by States to protect their citizens abroad.119 While the application of this principle still lacks

uniformity among states that practice it,120 the validity of the passive personality principle is no

115 Comp. ¶ 43.

116 SHAW, INTERNATIONAL LAW 653, citing Holmes v. Bangladesh Binani Corporation [1989] 1 AC 1112, 1137; 87 ILR, pp. 365, 380–1, per Lord Griffiths and Lord Browne-Wilkinson in Ex parte Pinochet (No. 3) [2000] 1 AC 147, 188; 119 ILR, p. 139.

117 Id. 664.118 Gavouneli, Functional Jurisdiction in the Law of the Sea.119 John G. McCarthy, The Passive Personality Principle and Its Use in Combating International Terrorism, Fordham International Law Journal, 300 (1989).120 John McCarthy’s examples. There are at least seven observed methods of applying the passive personality principle: 1) The principle can be applied broadly to cover all crimes, as in the case of the 1975 amended French Penal Code. 2) The principle’s use can be limited to specifically enumerated crimes, which is true of the United States’ Hostage Taking Act and Antiterrorism Act. 3) The principle may be exercised over crimes with a certain minimum degree of punishment, as used by the Italians in their penal code which excludes crimes for which the minimum penalty is less than one year of incarceration. 4) Some countries use the principle only when the chief executive such as the king or president, or their representative, commences its assertion, as provided in the penal codes of Norway, Finland, Italy and Sweden. 5) The principle may only be allowed when the accused is found in the territory of the country seeking to exercise jurisdiction, as in the case of the Italian penal code. 6) Some countries apply the principle when the country with territoriality jurisdiction does not prosecute, such as the Republic of Korea with its Korean Criminal Code. 7) The principle can be invoked when the crime is also punished in the country where it occurred, as is required under the Finnish penal code as well as in the laws of Greece, Norway and Sweden.

23

longer in question among scholars.121 This has been accepted by all states and the international

community as being consistent with international law.122

The Rosehill, an Amalean-registered cruise ship carrying 556 passengers, 70% of whom

were Amaleans, with 215 crew members from various nationalities, was navigating close to

Excelsior Island in response to customers’ requests and after the ship’s owners had obtained

permission therefor.123 However, upon approaching the Island, the Daedalus, a stolen Ritanian-

flagged yacht under the control of Oscar de Luz, a Ritanian citizen, was speeding towards the

Island and was on a collision course with the Rosehill.124 This forced the captain of the Rosehill

to veer toward Excelsior Island and to accelerate in order to avoid what seemed an imminent

collision, causing the ship to strike the Island with significant force.125

The impact caused ruptures to three oxy-fuel tanks on the Island, in turn leading to a

series of explosions that tore large holes in the hull of the Rosehill and caused fires that spread

through parts of the ship, which began to sink.126 Before nightfall, 127 passengers and crew of

the Rosehill died from explosions, burns, smoke inhalation, and drowning, with 150 others

injured.127 89 of the dead were Amalean nationals.128 Applying the passive personality principle,

Amalea had jurisdiction to try and convict Luz on account of the Amalean deaths which are

attributable to his conduct of the Daedalus.

121 John G. McCarthy, The Passive Personality Principle and Its Use in Combating International Terrorism, Fordham International Law Journal, 318 (1989).122 MALCOLM SHAW, INTERNATIONAL LAW 652 (6th ed. 2008).123 Comp. ¶ 41.124 Comp. ¶ 42.125 Id.126 Comp. ¶ 43.127 Comp. ¶ 42.128 Id.

24

It is worthy to note that Amalea’s exercise of the passive personality principle reflects the

longtime practice of the same principle by the Republic of Korea: the Korean Criminal Code

utilizes the passive personality principle when the state with territoriality jurisdiction does not try

the crime, protecting the offender from double jeopardy.129 Amalea proceeded with the trial,

noting that Ritanian criminal law did not expressly provide for prosecution of offenses

committed outside the country’s territorial waters, and therefore Luz might never be required to

answer for his crimes.130

C. Ritania cannot avail of flag-State jurisdiction over the Ritanian-flagged Daedalus to

justify their claim as Oscar de Luz was not the master thereof.

The basic rule regarding jurisdiction over ships on the high seas131 is that the flag state

alone may exercise such jurisdiction over the ship.132 However, this basic principle is subject to

exceptions regarding other vessels, one of which is in the event of a collision or of any other

incident of navigation concerning a ship on the high seas.133 Article 11 of the High Seas

Convention, which modified the previous decision of the predecessor of the ICJ, the Permanent

Court of International Justice (PCIJ), in the Lotus case,134 declares that penal or disciplinary

proceedings may only be taken against the master or other persons in the service of the ship by

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

129 John G. McCarthy, The Passive Personality Principle and Its Use in Combating International Terrorism, Fordham International Law Journal, 317 (1989) (citing Korean Criminal Code, art. 6 (1983)).130 Comp. ¶ 49.131 High Seas Convention art. 1 (defining the term “high seas”).132 1958 Convention art 6; 1982 Convention art. 92.133 SHAW, INTERNATIONAL LAW 614, (6th ed. 2008).134 1927 P.C.I.J. (ser. A) No. 10 at 25; 4 AD at 153.

25

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

than the authorities of the flag state.135

Had Luz been the master of the Daedalus, this rule would operate to give Ritania exclusive

jurisdiction over Luz as regards the incident, given that the ship was flying a Ritanian flag.

However, this rule cannot apply in the case at hand as Luz was not the master of the Daedalus

nor was he in the service of the same ship. The master in maritime law is a natural person hired

by contract who lives on a vessel and manages it and its related matter while the vessel is

navigating and carrying goods or performing services for freights or hire, the person appointed

and retained commander of a vessel in commercial service and licensed by competent national

authority.136 Oscar de Luz was not such a master of the Daedalus nor can his control of it be

construed as in the service of the ship since the facts clearly stipulate that the ship was stolen,

and that Luz did not possess any license or evidence from competent authorities appointing him

as master of the Daedalus.137

D. Ritania cannot claim jurisdiction based on the existence of a safety zone around

Excelsior Island.

Article 60 of the UNCLOS allows coastal States to construct and authorize the

construction of artificial islands138 such as Excelsior Island. Paragraphs 4 and 5 thereof gives the

135 SHAW, INTERNATIONAL LAW 618 (2008) (citing High Seas Convention art. 11) This was reaffirmed in Article 97 of the 1982 UNCLOS. See also 1952 Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters of Collision; Convention for the Suppression of Unlawful Acts of Violence against the Safety of Maritime Navigation.

136 Cartner & Fiske Leiter, The International Law of the Shipmaster 3 (2009). 137 Comp. ¶ 42.138 UNCLOS, art. 60.

26

coastal State the right to establish reasonable safety zones of a maximum of 500 meters around

such artificial islands.139 Paragraph 2 of the same Article even grants coastal States exclusive

jurisdiction over such artificial islands with regard to customs, fiscal, health, safety and

immigration laws and regulations.140

However, it is of no moment that the incident occurred within 500 meters of Excelsior

Island since the rights and obligations between Amalea and Ritania as to the Law of the Sea is

governed by the 1958 Conventions and not the 1982 UNCLOS, as previously discussed. The

1958 Geneva Conventions do not provide for such safety zones.

Moreover, even assuming arguendo that the UNCLOS is applicable in this case, there is

nothing in the Compromis that would indicate that Ritania established a safety zone and such

establishment cannot be presumed given that Article 60(5) requires due notice to be given of the

extent of safety zones.141

II. Amalea has no obligation to return Oscar de Luz to Ritania.

A. Extradition does not apply in this case.

The practice of extradition enables one state to hand over suspected or convicted

criminals who have fled their own country back to their state of origin and citizenship, and is

based on bilateral treaty law, as there does not exist a similar obligation upon states in customary

139 Id., ¶¶ 4, 5.140 Id., ¶ 2.141 UNCLOS art. 60 ¶ 5.

27

law.142 Given that there is no extradition or mutual legal assistance treaty existing between

Amalea and Ritania,143 the former state cannot be obliged to extradite Luz to the latter state.

CONCLUSION AND PRAYER FOR RELIEF

The State of Amalea respectfully requests that this Court adjudge and declare that:

142 SHAW, INTERNATIONAL LAW 686. Citing See e.g. the Joint Declaration of Judges Evensen, Tarassov, Guillaume and Aguilar Mauds-ley, the Lockerbie case, ICJ Reports, 1992, pp. 3, 24; 94 ILR, pp. 478, 507 and the Dissenting Opinion of Judge Bedjaoui, ICJ Reports, 1992, p. 38; 94 ILR, p. 521.

143 Comp. ¶ 52.

28

1. Ritania’s acts and omissions with respect to the development of Excelsior Island

violated international law, therefore, Amalea is entitled to seek compensation from

Ritania for economic losses caused by the landslide.

2. Amalea has exclusive ownership of the wreck of the Cargast and all artifacts

recovered from it and Ritania’s deployment of patrol vessels to the site of the Cargast

violated international law.

3. Amalean Navy’s pursuit of Oscar de Luz into Ritania’s EEZ, and his subsequent

arrest, were in compliance with international law.

4. Amalea had jurisdiction to try and convict Luz for criminal actions related to the

Rosehill incident, and that it has no obligation to return him to Ritania.

29