Telders International Law Moot Court Competition Written Memorial on behalf of the State of Urusus. (Respondent)

Telders International Law Moot Court Competition 2009 Written Memorial on behalf of the State of Urusus (Respondent) in The Case concerning Sovereignty over Abundantia Ridge and other Matters (Rosmarus v. Urusus) Registration No. 6

13 These include in particular treaties relating to the transport of hazardous wastes and must be regarded as setting a minimum standard to be observed in respect of these transports. 47 In the current case, Rosmarus failed to notify Urusus about multiple transports of hazardous wastes. In doing so, Rosmarus disregarded established international practices and breached the exclusive rights and obligations of the State of Urusus in relation to environmental protection in its EEZ. Therefore, Rosmarus failure to notify Urusus cannot be justified by recourse to the principle of freedom of navigation. IV. ROSMARUS COMPENSATE URUSUS FOR THE UNLAWFUL SEIZURE OF MARIA AND DETENTION OF AND INJURY CAUSED TO HER CREW IN THE WATERS ABOVE THE ABUNDANTIA RIDGE A breach of an international obligation attributable to a State under international law entails the responsibility of the infringing State, as well as the obligation to make full reparation for the injury caused, which includes compensation. 48 The seizure of the Maria and the arrest of her crew were (A) unlawful; consequently, (B) Rosmarus is under the obligation to pay compensation. Boyle, International Law and the Environment, 105 (2002); P. Sands, Principles of International Environmental Law, 249, 840 (2003). 47 Article 6(1), Basel Convention; Article 12(1), Rotterdam Convention; Article 6 (4), Bamako Convention; Article 6, Waigani Convention (1995); Article 6, Izmir Protocol; EC Directive 84/631; Article 2(g), EC Regulation 259/93 on Shipments of Waste; Articles 4, 8, ILC Draft Articles on Prevention of Transboundary Harm; Commentaries to the ILC Draft Articles on Prevention of Transboundary Harm, 406; Al-Ajmi, Maritime Transport of the Environmentally Damaging Materials (A Balance Between Absolute Freedom and Strict Prohibition), 3 Web JCLI (2007), http://webjcli.ncl.ac.uk/2007/issue3/al-ajmi3.html. 48 Phosphates in Morocco (Prel.Obj.) (Italy v. France), 1938 PCIJ 5 (Ser.A/B) No. 74, 10, 28 (Judgm., June 14); Factory at Chorzów (Merits) (Germany v. Poland), 1928 PCIJ 5 (Ser.A) No. 17, 5, 29 (Judgm., Sept.13); Corfu Channel (Merits) (U.K. v. Albania), 1949 ICJ 4, 23 (Judgm., April 9); Gab íkovo-nagymaros Project (Hungary v. Slovakia), 1997 ICJ 7, para. 47 (Judgm., September 25); S.S.Wimbledon (U.K., France, Italy, Japan v. Germany), 1923 PCIJ 16 (Ser.A) No. 1, 7, 30 (Judgm., June 28); Chapter II, ILC Articles on State Responsibility.

14 A. THE SEIZURE OF THE MARIA AND THE ARREST OF HER CREW WERE UNLAWFUL UNDER INTERNATIONAL LAW 1. Rosmarus did not fulfill the conditions of a hot pursuit under Article 111 of UNCLOS The rule pronounced by the PCIJ in the Lotus case that vessels on the high seas are subject to no authority except that of the state whose flag they fly 49 is uncontested in international law. 50 An exception to that well established rule lies in the right of hot pursuit under Article 111 of UNCLOS, allowing a State to extend its jurisdiction beyond its territorial waters in order to effectively enforce its laws and regulations against non-national ships that are trying to escape to the high seas. 51 In the M/V Saiga case the ITLOS stressed the need for a narrow interpretation of the application of Article 111 of UNCLOS. 52 The conditions for the exercise of the right of hot pursuit are cumulative: The coastal State s (a) specifically authorized authorities need (b) good reason to believe that the foreign vessel has violated domestic laws or regulations and (c) 49 S.S. Lotus (France v. Turkey), 1927 PCIJ 5 (Ser.A) No.10, 25 (Judgm., September 7). 50 Article 92, UNCLOS; R.R. Churchill & A.V. Lowe, The Law of the Sea, 203 (1999); R. Dupuy & D. Vignes, A Handbook on the New Law of the Sea 406 (1991). 51 Article 111, UNCLOS; M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 139 (Judgm., July 1); N. Poulantzas, The Right of Hot Pursuit in International Law, 39 (1969); W. Hall, A Treatise on International Law, 252 (6 th ed., 1909); Reuland, The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention, 33 Virginia Journal of International Law 557, 559 (1993); Allen, Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices, 20 Ocean Development and International Law 309, 311 (1989). 52 M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 146-152 (Judgm., July 1); Evans, The Law of the Sea in International Law, 639 (M. Evans (ed.), 2 nd ed., 2006); N. Poulantzas, The Right of Hot Pursuit in International Law, 30 (1969).

15 an auditory or visual signal has to be given prior to the pursuit. 53 Each of these elements has to be satisfied for the pursuit to be legitimate. 54 a) Specific authorization: When not carried out by warships or military aircraft hot pursuit may only be commenced by ships clearly marked and identifiable as being on government service and specifically authorized to that effect. 55 When in early 2008 the Rosmarian Minister for Natural Resources ordered the national Coast Guard to be on watch for illegal fishing activities in the area of the Grotius Sea, he did not authorize Coast Guard vessels to actively intervene in illegal fishing activities or even seize a foreign ship and arrest its crew. 56 While the Coast Guard might have been clearly identifiable, the Ministerial order does not fulfill the element of authorization under Article 111(5). b) Good reason to believe: In order to initiate a hot pursuit Article 111(1) of UNCLOS requires the coastal State s authorities to have good reason to believe that a violation of the coastal State s laws and regulations has occurred. 57 While the Convention does not require 53 Article 111(1), UNCLOS. 54 M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 146 (Judgm., July 1); N. Poulantzas, The Right of Hot Pursuit in International Law, 30 (1969); Tasikas, Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit, 29 Tulane Maritime Law Journal 59, 71 (2004). 55 Article 111(5), UNCLOS; N. Poulantzas, The Right of Hot Pursuit in International Law, 194 (1969); Tasikas, Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit, 29 Tulane Maritime Law Journal 59, 72 (2004); Allen, Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices, 20 Ocean Development and International Law 309, 317 (1989). 56 Para. 10, Compromis. 57 Article 111(1), UNCLOS; United States v. Williams, 617 F.2d 1063 (U.S. Court of Appeals, 5th Circuit) (May 12, 1980); N. Poulantzas, The Right of Hot Pursuit in International Law, 156 (1969); M. McDougal & W. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea, 896 (1962).

16 actual knowledge of an infringement, the criterion of good reason has the purpose to prevent a State from pursuing a ship on the basis of a mere suspicion. 58 The pursuit of the Maria was initiated on the assumption of the use of illegal trawl nets. 59 At the time the pursuit had started, however, the authorities of Rosmarus could not have more than a mere suspicion that these trawl nets were used: They had identified the Maria with what they believed was an illegal trawl net. Simply believing that a violation has occurred does not fulfill the requirement of good reason ; Rosmarus authorities acted on the basis of mere suspicion and lacked good reason to believe that the Maria had violated the laws and regulations of Rosmarus. c) Prior visual or auditory signals: Article 111(4) of UNCLOS requires that visual or auditory signals are given to the vessel prior to the commencement of the pursuit in order to afford the suspect ship the opportunity to heave to and await the inspection. 60 The visual 58 M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 147 (Judgm., July 1); United States v. Williams, 617 F.2d 1063, 1083 (US Court of Appeals, 5th Circuit) (May 12, 1980); N. Poulantzas, The Right of Hot Pursuit in International Law, 155 (1969); M. McDougal & W. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea, 896 (1962); Reuland, The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention, 33 Virginia Journal of International Law 557, 569 (1993); Allen, Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices, 20 Ocean Development and International Law, 309, 317 (1989). 59 Para. 11, Compromis. 60 M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 147 (Judgm., July 1); United States v. F/V Taiyo Maru No.28, Civil No. 74-101-SD, 414 (June 18, 1975); United States v. Postal, 589 F.2d 862 (US Court of Appeals, 5th Circuit), cert. denied, 444 U.S. 862, HN13 (February 15, 1979); N. Poulantzas, The Right of Hot Pursuit in International Law, 204 (1969); Reuland, The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention, 33 Virginia Journal of International Law 557, 584 (1993); Tasikas, Unmanned Aerial Vehicles and the Doctrine of Hot Pursuit, 29 Tulane Maritime Law Journal 59, 75 (2004); Gilmore, Hot Pursuit: The Case of R. v. Mills and Others, 44 The International and Comparative Law Quarterly 949, 956 (1995).

17 appearance of Coast Guard vessels as such is not sufficient. 61 Rather than merely being a procedural necessity, the requirement of prior signals constitutes a crucial element in the concept of hot pursuit. This was confirmed by the United States Court of Appeals for the Fifth Circuit in United States v. Postal where the Court emphasized that the signal to stop is of considerable significance since a pursuit is considered to have lawfully started only at the moment when a signal to stop is clearly given to the suspected vessel. 62 Consequently, the Court ruled that the arrest by the U.S. Coast Guard did not constitute a lawful exercise of the right of hot pursuit since, inter alia, the provision of visual and auditory signals to stop had not occurred until after a second boarding of the fleeing vessel on the high seas. 63 In the present case, the only signal given by the Rosmarian authorities was a warning gunshot fired across the Maria s bow. 64 At the time this shot was fired, however, the pursuit was already in progress and the Maria had already entered the high seas. Prior to the commencement of the pursuit, there had not been any visual or auditory signals. Rosmarus Coast Guard therefore failed to act in accordance with Article 111(4) of UNCLOS. For the aforementioned reasons, Rosmarus has not met the strict requirements of hot pursuit as enshrined in Article 111 of UNCLOS. Rosmarus thus incurs international responsibility towards Urusus. 61 N. Poulantzas, The Right of Hot Pursuit in International Law, 204 (1969); Allen, Doctrine of Hot Pursuit: A Functional Interpretation Adaptable to Emerging Maritime Law Enforcement Technologies and Practices, 20 Ocean Development and International Law 309, 319 (1989). 62 United States v. Postal, 589 F.2d 862 (US Court of Appeals, 5th Circuit), cert. denied, 444 U.S. 832, HN13 (February 15, 1979). 63 I. Bantekas & S. Nash, International Criminal Law of the Sea, 107 (2003); Reuland, The Customary Right of Hot Pursuit Onto the High Seas: Annotations to Article 111 of the Law of the Sea Convention, 33 Virginia Journal of International Law 557, 584 (1993). 64 Para. 11, Compromis.

18 2. The arrest of the crew was unlawful 2.1. Rosmarus did not have the right to arrest the crew of the Maria under UNCLOS The right of hot pursuit allows the arrest of a ship that has violated the national laws and regulations of the Coastal State. 65 Article 111 of UNCLOS, however, does not give the Coastal State any right to arrest the crew of a ship, even if that ship has been legitimately seized. Rosmarus, after chasing the Maria onto the high Seas, not only impounded the vessel but also arrested the crew. 66 This arrest, however, exceeds the rights granted to the Coastal State under Article 111 and can therefore not be justified under UNCLOS. 2.2. Alternatively, the use of force under the given circumstances was excessive While UNCLOS provisions on hot pursuit do not regulate the use of force, proportionality in enforcement is explicitly included in Article 73(1) of the Convention. Accordingly, in the M/V Saiga case the ITLOS emphasized that the use of force must be avoided as far as possible and, where force is unavoidable, it must not go beyond what is reasonable and necessary in the circumstances. 67 In the course of boarding the Maria, armed Rosmarian Coast Guard officers seriously injured a crew member who was resisting arrest. A serious injury in case of such resistance is in no relation to the offense committed and cannot be justified. 3. Rosmarus did not have the right to seize the Maria or arrest her crew under the UN Fish Stocks agreement 65 Articles 111(7), 111(8), UNCLOS. 66 Para. 11, Compromis. 67 M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 155 (Judgm., July 1); Commentaries to the ILC Articles on State Responsibility, 326-7.

19 While the UN Fish Stocks Agreement imposes the obligation on a flag State to ensure compliance by its vessels with regional conservation and management measures for straddling and highly migratory stocks, 68 there is no provision that would warrant a Coastal State the right to unilaterally seize a foreign vessel which it believes to be engaged in unauthorized fishing. Rather, Article 20(6) requires the flag State, at the request of the coastal State concerned, to cooperate with the coastal State in taking appropriate enforcement action in such cases. The flag State may authorize the relevant authorities of the coastal State to board and inspect the vessel, but not to seize and detain it and in particular not to arrest its crew. 69 Given that Urusus did not grant any rights to Rosmarus, Rosmarus acted without the authorization of the flag State. Rosmarus can therefore not seek justification for the seizure of the Maria under the UN Fish Stocks Agreement. 4. Rosmarus actions cannot be justified as countermeasures According to the ILC Articles on State Responsibility, the wrongfulness of an international act is precluded if and to the extent that the act constitutes a countermeasure. 70 In the Gab íkovo-nagymaros case the ICJ held that in order for countermeasures to be justified certain preconditions must be met: They may only be taken in response to a previous internationally wrongful conduct of another state, directed against that state and have to fulfill specific procedural requirements. 71 68 Article 19, UN Fish Stocks Agreement. 69 Article 20(6), UN Fish Stocks Agreement. 70 Article 22, ILC Articles on State Responsibility. 71 Gab íkovo-nagymaros Project (Hungary v. Slovakia), 1997 ICJ, para. 83 (Judgm., September 25); Military and Paramilitary Activities in and against Nicaragua (Merits) (Nicaragua v. US), 1986 ICJ 14, para. 249 (Judgm., June 27); Article 51, ILC Articles on State Responsibility.

20 Urusus did not violate its obligations under international law, neither (a) under UNCLOS nor (b) under the 1962 Treaty of Friendship. Additionally, (c) Rosmarus acts did not fulfill the procedural requirements for countermeasures. 4.1. Urusus did not violate its obligation to control vessels flying its flag Under UNCLOS a State shall effectively exercise control in administrative, technical and social matters over ships flying its flag. 72 The Convention, however, does not establish a general duty to control the activities of a State s vessels; Article 94 rather stipulates in great detail the matters which have to be taken by the flag State concerning administrative (e.g. maintenance of a register of ships) and safety aspects (e.g. labour conditions, training of the crew). Should another State have clear grounds to believe that proper control with respect to a specific vessel has not been exercised, it may report the facts to the flag State; upon receiving such a report, the flag State is under the obligation to investigate the matter and, if appropriate, take necessary measures to remedy the situation in response to a specific incident. 73 Unspecified, general allegations, in contrast, do not oblige the flag State to investigate. When the Maria, flying the flag of Urusus, engaged in fishing activities in Rosmarus EEZ, Rosmarus could have only claimed a violation of the specific duties imposed on Urusus by UNCLOS. However, Rosmarus raised general concerns; in the absence of specific allegations no duty of investigation arose for Urusus. A general duty to monitor the activities of its vessels does not exist under UNCLOS legal regime and can therefore not have been violated by Urusus. 4.2. Urusus did not contravene the optimal utilization doctrine of UNCLOS or the 1962 Treaty of Friendship 72 Article 94, UNCLOS. 73 Article 94(6), UNCLOS; D. Ademuni-Odeke, Bareboat Charter (Ship) Registration, 127 (1998).

21 Unlike the rights enjoyed by coastal States in their internal or territorial waters, a coastal State s sovereign rights within its EEZ are limited by UNCLOS in order to ensure the optimal utilization of the living resources therein. 74 With regard to fisheries, the EEZ is rather deemed a preferential than an exclusive economic zone: 75 A coastal State has to evaluate its own capacity of catch and, in case this capacity is inferior to the total allowable catch, must give other States access to the surplus of the allowable volume of catch. The allocation of the surplus of catch between the Coastal State and other States, according to Article 62(2) of UNCLOS, can be based on an agreement or other arrangements. 76 Rosmarus has not produced any scientific evaluations regarding its own capacity of catch. In the absence of such evaluations the 1962 Treaty of Friendship, even though concluded twenty years before UNCLOS came into force, can be seen as an agreement concerning the surplus-allocation: By establishing the obligation for both States to share data on fish catches as well as on stock populations and the prohibition of the use of certain trawl nets, Articles 1 and 2 of the Treaty essentially enshrine what was later specified in Articles 61 and 62 of UNCLOS: A balance between the conservation and optimal utilization of the living resources. Therefore the 1962 Treaty of Friendship provides a sufficient legal basis for the allocation of the surplus of catch. In order to determine whether Urusus acted in accordance with the Treaty, the object and purpose of the Treaty has to be interpreted according to Article 31(1) of the VCLT. Article 4 of the VCLT reaffirms the general rule of international law of non-retroactivity of Treaties; however, the ICJ has repeatedly held that parts of the VCLT, especially on treaty 74 Articles 61, 62, UNCLOS. 75 Rigaldies, L entrée en Vigueur de la Convention de 1982 sur le Droit de la Mer, 29 Revue Juridique Themis 213, 239 (1995); Bardin, Coastal State s Jurisdiction over Foreign Vessels, 14 Pace International Law Review 27, 55 (2002). 76 Article 62(2), UNCLOS.

22 interpretation, 77 are to be considered as reflecting customary international law. 78 Thus, the VCLT s rules of treaty interpretation may also be applied to the 1962 Treaty of Friendship. The purpose of the 1962 Treaty of Friendship, as stated in Article 2, is fostering the cooperation in promoting the development of each State s fishing and industrial activities. While specifically regulating the fishing modalities (e.g. the prohibition of trawl nets when fishing cod and pollack), the Treaty neither grants exclusive fishing rights to any of the two States nor establishes specific fishing areas and/or quotas. 79 This indicates that when concluding the Treaty, the parties seemingly intended the whole navigable part of the Grotius Sea to be available to both, Rosmarus and Urusus, in order to ensure a prospering economic development. Consequently, even if one State undertakes fishing activities in the other State s EEZ, these activities are in accordance with the 1962 Treaty of Friendship, so long as the development of the other State s fishing industry is not thereby affected. While Rosmarus might have accused Urusus of overfishing, it has not provided any factual evidence that its fishing industry has been affected by Urusus fishing activities. Hence, these allegations cannot be substantiated by invoking UNCLOS provisions on the optimal utilization of the living resources or, correspondingly, the 1962 Treaty of Friendship. 4.3. The procedural requirements for countermeasures were not met Even if the Court were to consider Urusus fishing within Rosmarus EEZ to be in violation of international law, the procedural requirements according to the ILC Articles on 77 Articles 31, 32, VCLT. 78 Libya/Chad Territorial Dispute (Libya v. Chad), 1994 ICJ 6, para. 41 (Judgm., February 3); Kasikili Sedudu Island (Botswana v. Namibia) 1999 ICJ 1045, para. 18 (Judgm., December 13); Sovereignty over Pulao Ligitan and Pulao Sipidan, 2002 ICJ 625, para. 37 (Judgm., December 17); Land and Maritime Boundary between Cameroon and Nigeria (Prel.Obj.) (Cameroon v. Nigeria), 2002 ICJ 59, para. 263 (Judgm., October 10); I. Brownlie, Principles of Public International Law, 580 (6 th ed., 2003); M. Shaw, International Law, 496 (6 th ed., 2008). 79 Para. 3, Compromis.

23 State Responsibility were not met: The injured State is under the obligation to notify the responsible State of any decision to take countermeasures and to offer to negotiate with that State. 80 It may only abstain from this requirement if urgent countermeasures are necessary to preserve its rights. 81 Since 1998, Rosmarus has frequently accused Urusus of allowing its fishing vessels to undertake fishing activities within Rosmarus EEZ. Frequent accusations, however, do not fulfill the criterion of notification that specific countermeasures will be taken and cannot be deemed as an offer to negotiate either. Additionally, depleting fish stocks through intensified fishing is a process that lasts over a long period of time. Even if countermeasures could have been legitimately taken, there was no imminent threat of so severe or even irreversible damage as to allow Rosmarus to act without prior notification. Hence, Rosmarus failed to fulfill the procedural requirements for countermeasures. B. ROSMARUS IS UNDER AN OBLIGATION TO PAY COMPENSATION Where a ship has been arrested outside the territorial sea in circumstances which do not satisfy the exercise of the right of hot pursuit it shall be compensated for any loss or damage sustained thereby. 82 Damage or other loss suffered by the ship and all persons involved comprises injury to persons, unlawful arrest, detention or other forms of ill-treatment, damage to or seizure of property and other economic losses, including loss of profit. 83 80 Article 52(1)(b), ILC Articles on State Responsibility. 81 Article 52(2), ILC Articles on State Responsibility. 82 Article 111(8), UNCLOS. 83 M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 172 (Judgm., July 1); Corfu Channel (Merits) (U.K. v. Albania), 1949 ICJ 244, 249 (Judgm., April 9); Heirs of Jean Maninat (France v. Venezuela), 9 RIAA 55, 83 (Award, July 31, 1905); Affaire Chevreau (France v. U.K.), 2 RIAA 1113, 1115, 1138 (Award, June 9, 1931); Libyan Arab Foreign Investment Company v. Republic of Burundi, 96 ILR 279, 329 (Award, March 4, 1991).

24 Additionally, reparation can also be claimed under customary international law as provided for in Article 304 of the Convention. The rule pronounced by the Court in the Chorzów case, as enshrined in the ILC Articles, is that a State which suffers damage as a result of an internationally wrongful act by another State is entitled to obtain reparation including compensation for injuries sustained by its nationals from the responsible State. 84 As argued supra, the conditions for the exercise of the right of hot pursuit have not been fulfilled and the force used by Rosmarus authorities was excessive. Rosmarus is therefore responsible for the illegal arrest of the Maria as well as the serious injuries inflicted on one of her crew members. As a consequence thereof Rosmarus is obliged to pay compensation to Urusus. 84 Factory at Chorzów (Merits) (Germany v. Poland), 1928 PCIJ 5 (Ser.A) No. 17; M/V Saiga (No. 2) (St. Vincent v. Guinea), ITLOS 1999, para. 170 (Judgm., July 1); Corfu Channel (Merits) (U.K. v. Albania), 1949 ICJ 244, 249 (Judgm., April 9); Lusitania (U.S. v. Germany), 7 RIAA 32, 35 (Award, November 1, 1923); Chapter II, ILC Articles on State Responsibility; I. Brownlie, State Responsibility, 225 (1983); D. O Connell, International Law, 1119 (1970).