MEMORIAL FOR THE ASIA CUP MOOT COURT COMPETITION, 2015

IN THE INTERNATIONAL COURT OF JUSTICE

PEACE PALACE, THE HAGUE
NETHERLANDS

CASE CONCERNING THE JURISDICTION OF THE COURT AND RESOURCE EXPLORATION IN

ZEEKANT SEA

THE STATE OF ALBION

APPLICANT
V.

THE FEDERAL REPUBLIC OF RICOJAN

RESPONDENT

SUBMISSION TO THE INTERNATIONAL COURT OF JUSTICE

TEAM : AC11

MEMORIAL FOR THE APPLICANT

STATE OF ALBION
 Memorial for the Applicant – Asia Cup 2015 – Team AC11

TABLE OF CONTENTS

SUMMARY OF PLEADINGS..............................................................................................iii

PLEADINGS...........................................................................................................................1

1. The International Court of Justice has jurisdiction under Article 36 (2)..............1

1.1. The Issue does not Concern Maritime Delimitation and Therefore does not fall

under the Reservation.......................................................................................................1

1.2. this Court has Jurisdiction as the State of Ricojan has violated Article 18 of the

Vienna Convention on the Law of Treaties......................................................................1

1.3. International Court of Justice has jurisdiction as United Nations Convention of

the Law of Seas is now part of the Customary International Law....................................4

2. The resource exploration and research conducted by the Government of the

State of Ricojan, ROC and RMRI in Zeekant Sea Constitutes a violation of

International Law...............................................................................................................5

2.1. The State of Ricojan has violated the principles of International Law by

unilaterally exploring resources in the Zeekant Sea.........................................................5

2.2. The State of Ricojan had erred in assuming that the median line was the

delimitation line pending the delimitation dispute between the States.............................7

2.2.1. The area where State of Ricojan has conducted exploitation comes within

the Exclusive Economic Zone and Continental Shelf of the State of Albion...............7

2.2.2. Equidistant Rule is not part of the customary International Law...................7

2.2.3. Application of Equitable principle will ensure that the State of Albion shall

have control over the entire stretch of its Exclusive Economic Zone...........................9

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SUMMARY OF PLEADINGS

1. The International Court of Justice has jurisdiction on this case under Article 36(2)

1.1. The reservation under Article 36(2) of the UNCLOS is only available for disputes

arising out of maritime delimitation. The claim against the State of Ricojan is merely

against the exploration of resources in the conflicted area. The delimitation of maritime

zones is not contested against.

1.2. Article 18 of the Vienna Convention imposes an obligation on States who have

committed themselves formally to a treaty but are not bound by it to refrain from doing

acts which defeat the purpose of the treaty. The dispute concerning resource exploration

conducted by the State of Ricojan, even among the median line, falls completely under

certain provisions in the UNCLOS.

1.3. The most important purpose of the UNCLOS is to codify and develop the law of the

sea. Authorities have accepted that the UNCLOS provisions reflect the present

customary law. The Vienna Convention allows a third state to be bound by customary

rule of International law, hence, providing ICJ jurisdiction over this matter.

2. The resource exploration and research conducted by the Government of the State of

Ricojan, ROC and RMRI in Zeekant Sea Constitutes a violation of International Law

2.1. Provisions of the UNCLOS lay down the rights and duties of States in matters of

marine scientific research, especially in areas of the Continental Shelf and Economic

Exclusive Zone with pending disputes. It emphasizes on the need for mutual agreement

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between States before proceeding with such activities. By unilaterally carrying out such

activities without the consent of the Applicant, the Respondent’s conduct has violated

principles of international law.

2.2. The principle of equidistance which involves taking the median line as the solution for

delimitation disputes is not recognized under customary International Law and hence, it

is not a mandatory legal principle. Authorities show that it is merely a means of

delimitation and a measure of equity, but not a binding obligation. Since the coasts are

adjacent to each other at a distance lesser than 400 nautical miles, their respective EEZs

are overlapping. By taking the median line as the delimitation line and carrying out

marine research activities in that area, the Respondent is interfering in a disputed area

which is in violation of International Law.

2.3. In order to arrive at a fair decision, the equitable principle as derived in many landmark

cases has to be applied. Rather than strictly applying the equidistance principle, various

other circumstances need to be taken into consideration when arriving at a solution. The

Respondent’s relatively better economic situation along with The Applicant’s greater

coast length, less prosperous economy and its inability to carry out research on its own

owing to lack of resources have to be taken into account when laying down the

delimitation line between the States to ensure an equitable solution.

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PLEADINGS

1. The International Court of Justice has jurisdiction on this case

under Article 36 (2)

1.1. THE ISSUE DOES NOT CONCERN MARITIME DELIMITATION AND

THEREFORE DOES NOT FALL UNDER THE RESERVATION

The definition of maritime delimitation was used by the International

Court of Justice (‘this Court’) in Nicaragua v Colombia1, where it was

found that maritime delimitation refers to “the task of delimitation

consists in resolving the overlapping claims by drawing a line of

separation between the maritime areas concerned” 2. Further, in case

of Australia v Japan3, it was held that that mere questioning of

maritime entitlements do not render the issue of the case to be that of

maritime delimitation. In the same case, the Court refused to hold the

issue as that of maritime delimitation due to the lack of any opposing

sovereign claims. Therefore merely because an issue arises from

disputed maritime boundaries; it does not automatically become a case

of maritime delimitation. There exists an additional requirement of

competing sovereign claims over such territories. In the present case,

Applicant is not making a sovereign claim over the disputed region. It

only seeking, pending final delimitation, an equitable and amicable

sharing of resource and technology as embodied in the principles of

United Nations Convention on the Law of Seas, 1982 (‘UNCLOS’).

1
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II).
2
Ibid pp. 674-675, ¶ 141.
3
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ Reports (2010).

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Therefore, the present case does not fall under the reservation in the

Respondent’s declaration.

1.2. THIS COURT HAS JURISDICTION AS THE STATE OF RICOJAN HAS

VIOLATED ARTICLE 18 OF THE VIENNA CONVENTION ON THE

LAW OF TREATIES

Without prejudice to the aforesaid argument, it is submitted that the

UNCLOS was signed by the Respondent even though the subsequent

ratification remains pending. Under Article 18 of the Vienna

Convention on the Law of Treaties (‘VCLT’), there exists an

obligation upon the Respondent to refrain from such acts that defeat

the purpose of the UNCLOS. The resource exploration and research in

the Zeekant Sea conducted by the Government of the Respondent,

ROC and RMRI without sharing the same with Applicant therefore

defeats the purpose UNCLOS.

One of the fundamental principles of international law is the principle

of good faith. It is explicitly incorporated in several provisions of the

VCLT including Article 26, Article 31 (1) and Article 32 (b). Further,

Article 31(1) of VCLT holds good faith to be implicit into every

provision of a treaty. Therefore, the principle of good faith must also

be read into Article 18 of the VCLT.4 While good faith, in itself, is not

a source of obligation5, it is the underlying principle that determines

the extent of an already existing obligation. In the Nuclear Tests Case6,

where this Court’ held the principle of good faith to be ‘an essential

4
Anthony D’Amato, Good Faith, in 2 Encyclopedia Of Public International Law 599, 600 (Rudolf Bernhardt ed., 1995).
5
The Border and Transborder Armed Action Case,  [1988] ICJ Rep 69, ICGJ 102 (ICJ 1988) (The court found that
elementary considerations of good faith lay down an obligation on Nicargua).
6
Nuclear Tests Case, ICJ Reports, 1974.

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tool in determining creation and performance of legal obligations.’ 7

France was therefore held to be bound by her unilateral declaration

based on the principle of estoppel and the principle of good faith.

Therefore, an existing obligation may be modified and even supplanted

in different circumstances based on the principle of good faith. The

obligation to refrain from defeating the object and purpose of a treaty

under Article 18 of the VCLT, by application of the principle of good

faith, must be extrapolated to include certain specific obligations under

the treaty, especially if violation of such obligation prejudices the

rights of the countries bound by the treaty. In Cameroon v Nigeria8,

this Court held that ratification to not be a compulsory requirement and

that a treaty may enter into force merely on signature. Further in Qatar

v Bahrain9, the Court observed that unratified treaty might represent

accurate understanding merely by the signature.

The primary purpose of the UNCLOS, which came into force on

November 16, 1994, is maximum efficient utilization of marine

resources through cooperation amongst member nations.10 UNCLOS is

an international treaty that provides a regulatory framework for the use

of the world’s seas and oceans, inter alia, to ensure the conservation

and equitable usage of resources and the marine environment and to

ensure the protection and preservation of the living resources of the

sea.11 UNCLOS also has several provisions protecting and supporting

7
Ibid.
8
Land and Maritime Boundary between Cameroon and Nigeria, IC] Reports (2002), pp. 303, 429 (para. 264).
9
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports (2001), pp. 40, 68, ¶89.
10
Preamble, United Nations Convention on the Law of Seas, 1982.
11
Permanent Court of Arbitration, 'Ad Hoc Arbitration Under Annex VII of the United Nations Convention on the Law of
the Sea' (pca-cpa.org 2014) <http://www.pca-cpa.org/showpage.asp?pag_id=1288> accessed 12th June, 2015.

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the rights and interests of developing nations. 12 Further due to its

widespread acceptance, therefore, the good faith interpretation of the

object and purpose of the treaty requires preventing prejudice to the

rights and interests of developing nations in the maximum efficient

utilization of marine resources.

In the present case, the Applicant is a developing nation, which also

happens to be a member of the UNCLOS and the Respondent, a

developed nation, which has merely signed the UNCLOS without

subsequent ratification. There exists an obligation on the Respondent

under Article 18 of VCLT to refrain from acts that would defeat the

purpose of the UNCLOS. Article18 sets out an obligation for those

States that have committed themselves formally to a treaty but are not

bound by it. Hence the purpose of the Article is to protect the

negotiated agreement so that at the time of future ratification, the

rationale of the agreement is still in place and not contradictory to the

initial purpose.13 Such obligation, after application of the principle of

good faith, includes a requirement to refrain from violating certain

specific provisions of the UNCLOS that would prejudice the rights of

member nations, especially those of developing nations. The dispute

regarding resource exploration and research in the Zeekant Sea

conducted by the Government of the Respondent, ROC and RMRI,

even that along the median line, falls completely under the purview of

the UNCLOS as the treaty contains specific provisions governing such

situations and the Respondent, having signed the treaty, is under an

12
Article 148, 202 and 203 of United Nations Convention on the Law of Sea, 1982.
13
Dr. Oliver Dörr, Dr. Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (2011, Springer)
129.

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obligation not to prejudice the rights of Applicant, a developing

country, in contravention to the said specific laid down provisions of

the treaty.

Hence, the Respondent’s refusal to share knowledge and technologies

is therefore a violation of the Respondent’s obligation under Article 18

of the VCLT as the dispute clearly falls within the UNCLOS.

Therefore, the matter falls under the jurisdiction of this Court’.

1.3. INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION AS UNITED

NATIONS CONVENTION OF THE LAW OF SEAS IS NOW PART OF THE

CUSTOMARY INTERNATIONAL LAW

Without prejudice to the aforementioned arguments, it is submitted

that the contents of the UNCLOS form customary international law,

and are therefore binding on all states, whether or not they have signed

or ratified the Convention. The 1982 United Nations Law of the Sea

Convention (UNCLOS) is such an important source of the law of the

sea that it can be considered to be a “be all, end all” statement.

Moreover, beyond just the name, its scope, ubiquity, and near-

universal acceptance support further propels such a perception.

Countries such as the United States which has not even ratified the

Convention , still takes into account its provisions and so it can be

rightly said that the UNCLOS has achieved the status of, customary

international law and is held to be binding on nations that have not

explicitly denied to adhere to it. 14 Under the Vienna Convention on the

Law of Treaties, a rule that is given under a treaty may bind a third
14
The “Other” Law of the Sea by Commander Andrew J. Norris, U.S. Coast Guard at
https://www.usnwc.edu/getattachment/735168b5-3883-49fb-a537-e02fa1f4a347/The--Other--Law-of-the-Sea.aspx
accessed 12th June, 2015.

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state if the rule is recognized as customary rule of international law. In

the Libya/Malta case15 it has been held that evidence for customary

international law must be found in the actual state practice and opinio

juris of the states.

In Sarei v Rio Tinto16, it was held by the Court that having been ratified

by 166 states, the UNCLOS reflects customary international law.

Further reasons were also cited for reaching such a conclusion. 17 The

fact that the United States had not ratified the Convention, did not

preclude the plaintiff from making his claims, since violation of the

UNCLOS amounted to violation of customary international law.

Furthermore, it is submitted that there is also adequate state practice to

show that the UNCLOS reflects customary international law. 18 “The

[UNCLOS] also contains provisions with respect to traditional uses of

the oceans which generally confirm existing maritime law and practice

and fairly balance the interests of all states.”19

2. The resource exploration and research conducted by the

Government of the State of Ricojan, ROC and RMRI in Zeekant

Sea Constitutes a violation of International Law

2.1. THE STATE OF RICOJAN HAS VIOLATED THE PRINCIPLES OF

INTERNATIONAL LAW BY UNILATERALLY EXPLORING RESOURCES

IN THE ZEEKANT SEA

15
Case concerning Continental Shelf (Libya v. Malta), 1982 I.C.J. 554.
16
Sarei v Rio Tinto, 221 F Supp 2d 1161 (CD Cal 2002) 1161.
17
Ibid.
18
Craig H. Allen, 'The International Law of the Sea: A Treaty for Thee; Customary Law for Me?' (opiniojuris.org 2012)
<http://opiniojuris.org/2012/06/14/the-international-law-of-the-sea-a-treaty-for-thee-customary-law-for-me/> accessed
13th June, 2015.
19
United States Oceans Policy, Statement by the President (Mar. 10, 1983).

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Article 238 of UNCLOS permits the marine scientific research

“subject to the rights and duties of the other States as provided for in

the [said] Convention”.20 From the plain reading of Article 74 (3) of

UNCLOS that deals with the Exclusive Economic Zone (“EEZ”) 21 and

Article 83(3) of UNCLOS that talks about the continental shelf, it can

be inferred that it is evident that the Respondent had the obligation to

enter into a provisional agreement before conducting any resource

exploration and research since there is a pending delimitation dispute

in Zeekant Sea between the two States. It has been held that Article 83

(3) and Article 74 (3) of the UNCLOS are codification of the

customary international law practice that has been prevalent in the

international maritime regime.

Interpretation of the obligation of the States under Article(s) 83(3) and

74(3) had come under scrutiny in the case of Guyana v Suriname22.

The dispute in the said case occurred with regard to exploration of the

hydrocarbon resources. The Permeant Court of Arbitration (“PCA”)

held in this case that two classes of activities in disputed waters are

permissible. The first comprises activities undertaken by the parties

pursuant to provisional arrangements of a practical nature. 23 The

second class is composed of acts which, although unilateral, would not

have the effect of jeopardizing or hampering the reaching of a final

agreement on the delimitation of a maritime boundary.24 The PCA

further went on to state that unilateral acts such as seismic exploration

20
Article 238 United Nations Convention on the Law of Seas, 1982.
21
Article 74 (3) United Nations Convention on the Law of Seas, 1982.
22
Guyana v. Suriname (P.C.A. Award of Sep. 17, 2007).
23
Ibid, ¶ 466.
24
Ibid.

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were acceptable for sovereigns or companies, while “activities of the

kind that lead to a permanent physical change, such as exploitation of

oil and gas reserves” are not.25 The determination by the PCA in this

case bolsters the developing rule of customary international law

obligating states to reach temporary joint development agreements for

resource exploitation in contested sea zones.26

The facts of Guyana v Suriname27 is very similar to the present fact

situation. In the present case too, there is a pending delimitation

dispute. The Respondent was obliged to enter into a transitional

agreement before conducting any resource exploration in the disputed

area. But the Respondent did not even inform the Applicant of the

exploration. This is in clear violation of the principles of International

Law. The resource exploration by the Respondent dealt with gas and

this could have led to permanent physical damage in the Zeekant Sea

and by this act, the Respondent has further violated its international

obligations.

2.2. THE STATE OF RICOJAN HAD ERRED IN ASSUMING THAT THE

MEDIAN LINE WAS THE DELIMITATION LINE PENDING THE

DELIMITATION DISPUTE BETWEEN THE STATES

2.2.1. The area where State of Ricojan has conducted

exploitation comes within the Exclusive Economic Zone and

Continental Shelf of the State of Albion

25
Guyana v. Suriname, (P.C.A. Award of Sep. 17, 2007) ¶ 467.
26
See also David M. Ong, Joint Development of Common Offshore Oil and Gas Deposits: ‘Mere’ State Practice or
Customary International Law? 93 A.J.I.L. 771, 801 (1999).
27
Guyana v. Suriname (P.C.A. Award of Sep. 17, 2007).

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UNCLOS has no provisions on how to resolve sovereignty disputes

over offshore features. However, it does contain provisions on the

nature and extent of the maritime claims that can be made from land

territory and offshore features. The EEZ and Continental Shelf extends

upto 200 nautical miles from the territorial sea baseline. 28 In this case,

since both the States are adjacent to each other at a distance of lesser

than 400 nautical miles, their respective EEZs and Continental Shelf

are overlapping. Hence, the overlapping area is a matter of dispute. By

carrying out scientific exploration along the median line, the

Respondent has encroached the rights of the Applicant over its EEZ

and the Continental Shelf. This is clear violation of the principles of

UNCLOS as there is a pending delimitation dispute and if the court in

the said dispute grants entire stretch of 200 nautical miles to the

Applicant, then the exploration done by the Respondent along the

median line shall be violation of its territory.

2.2.2. Equidistant Rule on delimitation is not part of the customary

International Law

Article(s) 74 (1) and 83 (1) of UNCLOS provide that “the delimitation

of the [continental shelf/exclusive economic zone] between States with

opposite or adjacent coasts shall be effected by agreement on the basis

of international law, as referred to in Article 38 of the Statute of the

International Court of Justice, in order to achieve an equitable

solution”.29 Over the years, the decisions of international courts and

28
Article 55 United Nations Convention on the Law of Sea, 1982.
29
Article(s) 74 (1) and 83 (1) United Nations Convention on the Law of Sea, 1982.

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tribunals have attempted to articulate what is meant by “equitable

solution” and such jurisprudence is recognized to be relevant to the

interpretation of Articles 74 and 83 of UNCLOS. There are several

theories and principles that have evolved over the years to determine

the equitable solution. The two prevalent theories are equitable

principle and equidistance principle. As per the equidistance principle,

the States will draw a median equidistance line between their borders.30

North Sea Continental Case31 minimized the importance of the

equidistance principle32. The Court held that, “the equidistance

principle was not a necessary consequence of the general concept of

continental shelf rights, and was not a rule of customary international

law33.” The Court also further put down a number of factors to be

taken into account in the process of delimitation when states are

attempting to reach an agreement. The factors are the general

configuration of the coast of the states, the length of their respective

coastlines among other factors34. Following the lead of this historical

case, majority of the subsequent judgements also held up this approach

towards issues of maritime delimitation. In the case of Libyan Arab

Jamahiriya v Malta35, the equidistance principle was applied to help in

the delimitation of boundary. However, owing to the considerable

disparity in length of the coasts of the two states, the factor of the
30
"Federal Outer Continental Shelf (OCS) Administrative Boundaries Extending from the Submerged Lands Act Boundary
seaward to the Limit of the United States Outer Continental Shelf," Federal Register, January 3, 2006 (Volume 71, Number
1) ¶ 127–131.
31
North Sea Continental Shelf Cases, [1969] ICJ Rep. 4.
32
Adede. A.O. ‘Toward the formulation of the rule of delimitation of sea boundaries between states with adjacent or
opposite coasts’ Virginia journal of international law 19, 1979 ¶ 213, 215.
33
North Sea case, Merits of Judgment of 20 February 1969. Preamble ¶ 3.
34
Mark OsaIgiehon, Present international law on delimitation of the continental shelf (International Energy Law &
Taxation Review 2006).
35
Libyan Arab Jamahiriya v Malta [1984] ICJ Rep 3, ICGJ 117 (ICJ 1984).

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proportionality of the length of the respective coasts was taken into

account and the median line was then accordingly adjusted to lie closer

to Malta and farther away from Libya36. The Court arrived at this

decision holding that “equity does not necessarily imply equality 37”

and hence, the principle of equidistance was not an obligatory

principle. It is not a part of Customary International Law but merely a

method of a major role in the delimitation process 38. The equidistance

principle is only for evaluation and balancing of all relevant

circumstances, a method and measure of equity but not a mandatory

legal principle39. This has been further held in cases such as Qatar v

Bahrain40, where the delimitation of the Territorial Sea was done by

first drawing the line of equidistance by determining baselines,

followed by altering the line depending on equity and adjusting

depending on special circumstances.41 Similarly, in the Gulf Maine

Case42 the Court applied a geometrical method, which resulted in a

median delimitation line and then corrected that line to take account of

the difference in length of the two coastlines, a factor which it decided

was an important circumstance43. In the present case, the Respondent

has erred in assuming that the equidistant median line is the

delimitation line between the States. Several cases stated above negate

36
Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) [1985] ICJ Reports 71.
37
Supra n36.
38
Nippon Foundation Paper on Maritime Boundary available at
http://www.un.org/depts/los/nippon/unnff_programme_home/fellows_pages/fellows_papers/dundua_0607_georgia.pdf
accessed 12th June, 2015, ¶ 2.
39
Ibid.
40
Case Concerning the Maritime Delimitation and territorial Questions between Qatar and Bahrain [2001] ICJ Report 176
(Mar. 16).
41
Ibid.
42
Delimitation of the Maritime Boundary in Gulf of Maine Area (Can. v. U.S.), 1984 .C.J. 246 (Judgment of Oct. 12).
43
Ibid.

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the said assumption of the Respondent. Hence, the unilateral resource

exploration and exploitation by the Respondent is the clear violation of

the sovereignty of the Applicant.

2.2.3. Application of Equitable principle will ensure that the

State of Albion shall have control over the entire stretch of 200

nautical miles of its Exclusive Economic Zone

In the Gulf of Tonkin (China-Vietnam Dispute)44, the States reached a

compromise by moving away from strict equidistance and use

compromise and certain techniques to reach an equitable line. In the

present case, since the Applicant is a poor developing country, it will

require the entire coastal stretch of 200 nautical miles along its coast to

ensure equitable distribution of wealth. Since the Respondent has very

sophisticated and developed technology and other monetary resources

for exploitation. Therefore, keeping in mind the equity and the

customary and the codified principles of international law, the

applicant prays for an immediate suspension of all the exploration and

resource exploitation activities by the Respondent and RMRI in

Zeekant Sea. The Applicant also prays that the Court to direct the

Respondent to submit its research in the Zeekant Sea to the Applicant

without any delay.

Conclusion

44
Gulf of Tonkin (China-Vietnam Dispute) Moïse, Edwin E. (1996). Tonkin Gulf and the Escalation of the Vietnam War.
Chapel Hill: University of North Carolina Press.

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The Applicant respectfully requests the Court to:

1. DECLARE that the International Court of Justice has Jurisdiction over

the matter related to exploration of resources in the Zeekant Sea by

the Respondent and also its refusal over sharing of Methane Hydrate

samples

2. DECLARE that the Respondent shall take all necessary steps to ensure

that no new exploration either by Respondent or under its control

takes place in the disputed area and share any previous data it may

have regarding the same, including prevention of exploitation of data

previously collected by the Respondent.

3. DECLARE that the Respondent shall carry out strict and continuous

monitoring of all activities undertaken by the Respondent to ensuring

the prevention of serious harm to the marine environment, under all

circumstances.

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