2nd ILNU INTERNATIONAL MOOT COURT COMPETITION, 2013

1st-3rd March, 2013

The Case concerning Certain Aspects of Jurisdiction over Jamboodweep Archipelago and the adjacent sea Areas
Ruritania (Applicant) versus Antonia (Respondent) I. Introduction The Jamboodweep Archipelago is a group of five islands an archipelago in the South Thethis Ocean, located about 190 nautical miles) from the coast of mainland of Anonia and about 185 nautical miles from the coast of Ruritania that lies exactly opposite the coast of Antonia. The archipelago consists of East Jamboodweep (closer to Antonia), West Jamboodweep (closer to Ruritania) and a group of three uninhabited islands of sizes ranging from 1 sq km to 3 sq. km, located right in the between the East and West Jamboodweeps. These small islands are separated from the landmass of East Jamboodweep by a deep geological fault that runs through the entire South Tethis Ocean. Swarnanagari is the administrative headquarters of the archipelago, situated on East Jamboodweep. However, the population on Jamboodweep is nearly 50% Antonian and 50% Ruritanian extraction, although before 1721, it was overwhelmingly Ruritanian. For a long time it was a colony of Cantonia which had ruled over Antonia for about 400 years, since 1721. During the colonial rule, for quite some time the archipelago was In 1921, however, administered directly from Hastinapur, the capital city of Antonia.

Colonia found it convenient to bifurcate the administration and establish separate administrative offices at Swarnanagari exclusively for the affairs of the islands. This was particularly so because it was suddenly discovered that a vast area around the coasts of these five islands is endowed with pearl fisheries. Indeed, the colonial administration made it known that it considered the entire region of the South Thethis Ocean as its historic waters.

At the turn of the 1960s, a huge reserve of natural gas was also discovered in regions lo cated between the East and West Jamboodweeps. Soon thereafter, in 1964, the Cantonian colonial government awarded exploration and exploitation contracts to Cantonia Petroleum Company (CPC), a multinational giant headquatered in Brittany, the capital city of Cantonia. Under these contracts, CPC was granted the exclusive rights to explore and exploit the natural gas located within and outside the archipelago for a period of 99 years, and in turn, it agreed to share 50% of profits with the Government of Cantonia which would then transfer 10% of its receipts to the colonial administration in Antonia. During the colonial rule both the freedom movements of Antonia and Ruritania had vehemently protested against this profit sharing arrangement citing the UN Declaration on Permanent Sovereignty over Natural Resources. Antonians argued that the entire profits should benefit the people of Antonia, while Ruritanians argued for the entire profits to go to the people of Ruritania, since historically the archipelago of Jamboodweep belonged to the Ruritanian people. Before 1721, Antonia, the Jamboodweep archipelago and Ruritania were an integral part of the Ottatian Empire. The empire began crumbling round 1700 because of rise of the Santo religion in those parts of the world. The majority of the people of Ruritania, belong to the Ottatian religion. As noted already, there were independence movements in both Ruritania and Antonia during the Cantonian rule. The leaders of these movements were farsighted enough to coordinate their struggles, keeping aside their internal squabbles. Finally, with the intervention of the UN Committee on Decolonisation constituted under General Assembly resolution 1514 (XV) of 14 December 1960, Cantonia finally agreed grant independence to Antonia and Ruritania on 15th August, 2010. The Cantonian Parliament adopted the AntoniaRuritania Independence Act on 10th June, 2010 whereby both these territories as they stood under the Cantonian rule would become independent countries on 15th August, 2010. On the basis of a Devolution Agreement negotiated on 2nd June, 2010 between the representatives of Antonia and Ruritania with the last Cantonian Governor-General at Hastinapur, the Act inter alia provided the following: (1) That the administration of the Jamboodweep islands should continue from Hastinapur as before; (2) That Antonia and Ruritania undertook to settle the dispute relating to title to these islands by peaceful means as soon as possible; (3) That both these States undertook to bind themselves under all treaties and conventions (except the 1982 UN Convention on the Law of the Sea) to which Cantonia was a party as at the date of their independence; and (4) That the CPC contracts should continue to be respected until renegotiated/replaced on the basis of a tripartite understanding between Cantonia, Antonia

and Ruritania, and that until then, CPC should remit 50% of its profits to Antonia and Ruritania to be equally shared. II. Independence and After Soon after independence, CPC incorporated a new company at Hastinapur a new company, namely Cantonian Petroleum Company (Antonia) and transferred all its rights, interests and activities in the contracts of exploration and exploitation of the Jamboodweep natural gas and agreed to share the profits 50-50 basis, i.e. 50% of these profits to be equally shared by Antonia and Ruritania. In other words, CPC (Antonia) stepped into the shoes of CPC (Cantonia), taking over all its rights and obligations under the pre-existing contracts. This provoked a prompt response from Ruritania with its Minister for Energy Resources stating: We hereby proclaim that the transfer of interests from CPC (Cantonia) to CPC (Antonia) illegal and we do not recognise it. It has been done without even consulting us. It is our article of faith that, CPC (Cantonia) never had any right over the permanent sovereignty of Ruritania in respect of its natural resources. The permanent sovereignty of Ruritania is even recognised in the 1982 UN Law of the Sea Convention, although Ruritania is not a party to the convention. In view of this alarming development, steps are being taken by the Government of Ruritania immediately to protect its interests by establishing Ruritanian Energy Corporation, a government corporation that shall take over the ownership and control over all energy resources within the jurisdiction of Ruritania. This statement did create quite a ripple in the OECD countries. In one of the Meet the Press programmes, Dr. Paul Henry Spaak, President of the World Bank was asked to react to the Ruritanian Ministers statement. Dr. Spaak replied: I dont know the details of the case. As a matter of policy, the World Bank stands for the principle of sanctity of contract. If this principle is not respected, the country concerned will not be able to attract foreign private investments. Nor would it find it any easy to seek economic assistance from international economic or financial organisations. Soon thereafter Ruritania established by a special statute the Ruritanian Energy Corporation which was, inter alia, empowered to take over control of and operate all explorfation and exploitation activities relating to the energy resources obtaining with the territory and maritime resource jurisdiction of Ruritania. Needless to say, this triggered an uproar in

Antonia, resulting in a strong diplomatic protest demand that Ruritania retract from meddling with the operation of the CPC contracts. At the time of independence, the erstwhile Cantonian colonial armed forces stationed in Antonia and Ruritania was appropriately apportioned between Antonia and Ruritania by a tripartite agreement. The newly formed Antonian army quickly moved to the Jamboodweep and established Antonian control over the archipelago. The new Ruritanian Government instantly protested and moved its armed forces units to the South Thethis Ocean. The Ruritanian forces sought to wrest control of the three small islands and the West Jamboodweep from Antonian forces. As a Ruritanian vessel, S.S. Indravajra carrying a number armed troops and with cannons directed against the coast of the East Jamboodweep, moved into the waters between the East Jamboodweep and the three small islands, it was fired upon without warning from the coast of the East Jamboodweep. In the hostilities that ensued, 15 Ruritanian soldiers were killed 51 others were taken prisoner in a sea encounter. The Ruritanian vessel that was engaged in the hostilities was also sunk by the Anatonia forces. The PoWs were taken to Swarnanagari and tortured in jail, with a view to extracting information on the strength of the Ruritanian troops active in the region, their firepower and also their leadership location. These were widely displayed on the National Television of Antonia for sometime until strong protests came from International Committee of the Red Cross. Ruritania demanded prompt return of the PoWs and compensation for the loss of the Indravajra and 15 soldiers as also for the torture and other ill-treatment of the PoWs. The UN-Secretary-General promptly convened an emergency meeting of the UN Security Council, acting under Article 99 of the UN Charter. A stern Security Council, (in which Cantonia is a veto-wielding member) ordered a cease fire and asked both parties to cease and desist from armed confrontation in the region and withdraw forces to status quo positions. The Council also appointed a three member, high level committee of inquiry comprising the former Chief Justice Sir Ninian Stephen of Austrania, former Chief Justice R. K. Bhagwati of Indica, and former Lord Chancellor Hailsham of Northern Kingdom. III. Sir Ninian Stephen Committee and the Plebiscite The Stephen Committee visited both Antonia and Ruritania and surveyed the Archipelago of Jamboodweep. It heard witnesses from both the countries, examined a large quantity of

official documents produced from both sides. It also heard representatives of both Ruritanian and Antonian groups on the archipelago. It discovered that although the East and West Jamboodweeps are more or less of equal size, the population on East Jamboodweep is overwhelmingly Antonian, and that on West Jamboodweep predominantly Ruritanian. There are a large number of historical monuments now submerged in the sea between Ruritania and the West Jamboodweep. It finally decided to recommend to the Security Council that the archipelago be equally allocated between Antonia and Ruritania, with Antonia taking the East Jamboodweep and the nearest uninhabited island to the west, and Ruritania the West Jamboodweep and the remaining two small islands. It also recommended that the natural gas reserve lying in the middle of the East and the West Jamboodweep must be equally shared between Antonia and Ruritania, under the supervision of a joint commission representing the two countries with a representative of the International Seabed Authority playing the role of the Umpire. The Stephen Committee report was widely received by the members of the Security Council. However, since Antonia and Ruritania became independence at the instance of the General Assembly (General assembly resolution 36/2010, 4 December 2009), the Council decided to refer the Stephen Committee report for appropriate action. Thus the dispute about the Jamboodweep archipelago moved to the General Assembly. Ruritania vehemently protested against the committee report, and asserted historical rights over the archipelago. The majority of the Assembly felt that the Stephen Committee had adopted a clinical approach to a largely self-determination issue. Therefore, acting pursuant to resolution 1514, the General Assembly recommended plebiscite in the Jamboodweep archipelago. The Security Council (SC res. 3500/2010) agreed with the recommendation of the General Assembly, requested the UN Secretary-General to organise the plebiscite for the archipelago and asked Antonia and Ruritania to cooperate fully with the United Nations. Antonia did make a public protest and asserted its sovereignty over the entire Jamboodweep archipelago. Ruritania on its part contested the allocation of one of the three small islands to Antonia, as this was in the face of the geological realities. The plebiscite involved two options for the people of the archipelago to choose from. One was whether the Stephen Committee recommendations were acceptable. The other was

whether the people would opt for independence, i.e. a status separate from Antonia and Ruritania. The plebiscite was held on 26th January, 2011, and the people voted overwhelmingly in agreement with the Stephen Committee recommendations. Jamboodweep archipelago according to the Stephen formula. IV. Soon thereafter, however, trouble arose in respect of the composition of the Joint Commission to supervise the equal distribution of the natural gas resources and the profits accruing from the CPC contracts. Antonia is a party to the 1982 UN Convention on the Law of the sea, whereas Ruritania is not. Therefore, Ruritania refused to recognise any role for the International Seabed Authority in the functioning of the Joint Commission. Ruritania also had other problems with the natural gas exploitation, and profit sharing regime. It insisted on instant termination of the contracts with CPC, CPC contracts were colonial in character and therefore they were void ab initio. Antonia on its part argued in favour of continuing with the old contracts, as it was important to ensure stability of contracts. Further, Sharing of 50% of profits was not a bad deal. Another issue raised by Ruritania was that two-thirds of the natural gas reserve is located between the two small islands and the West Jumboodweep and that therefore Ruritania was not prepared to share the benefits therefrom equally with Antonio. Antonia rejected this argument, because the situation arose on the basis of the developments leading to the independence of both countries. It referred to the Devolution Agreement of June 2010 to which Ruritania was a party. Ruritania raised these concerns with Antonia, but Antonia flatly refused to renegotiate the regime, citing the Stephen Committee report and the decisions of the General Assembly and the Security Council in support. These, Antonia argued, are binding on both the States. Ruritania did reiterate its earlier claims of illegal use of force by Antonian troops on the Ruritanian vessel and compensation for damage and loss during hostilities. Thus the Security Council adopted resolution 3642 on 28th January 2011, formally allocating the potions of the

The UN Secretary-General took the initiative to bring both States to the table to negotiate a special agreement whereby the disputes are referred to the International Court of Justice for its adjudication. The special agreement came about on 20th December, 2011. The special agreement runs as follows: QUOTE SPECIAL AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF RURITANIA AND THE GOVERNMENT OF THE RFEPUBLIC OF ANTONIA IN RESPECT OF SETTLEMNT OF OUTSTANDING DISPUTES BETWEEN THEM BY SUBMISSION THEREOF TO THE INTGERNATIONAL COURT OF JUSTICE The Government of the Republic of Ruritania and the Government of the Republic of Antonia (to be hereinafter referred to as the Parties, and individually, as Party), Recognising that they have been unable to resolve by negotiation the differences between them that have arisen or that have come to be raised since their independence; Desiring that being two neighbouring States sharing not only a common geography but also a common history, they should strive to reach an early and amicable settlement of these differences, Have agreed as follows : Article 1 The Parties shall submit the differences formulatged in Article II to the International Court of Justice, pursuant to Article 36(1) of the Statute of the Court. Article II (1) The differences that the Parties do hereby submit to the Court for adjudication are as follows:

1.

All legal aspects of the hostilities that broke out consequent upon the taking over of the administration of the Jamboodweep Islands by the Republic of Antonia, immediately after 15th August, 2010.

2.

Indication of maritime boundary between the Republic of Antonia and the Republic of Ruritania, in respect of the area between the East Jamboodweep and the West Jamboodweep, taking into the account the competing claims of the Parties as to the continental shelf in the said area.

3. 4. 5.

Appropriate formula for proportionate sharing of the commonly shareable natural gas reserves found in the disputed area in the Jamboodweep Island Group. Review of the composition and functioning of the Joint Commission on sharing of common natural gas reserve between the Parties. The right of the Republic of Ruritania to terminate the 1964 contractual rights of the Cantonia Petroleum Company, irrespective of the intentions of the Republic of Antonia.

6. (2)

All aspects of legal situations arising out of the aforesaid groups of disputes.

The Parties hereby undertakes to accept as final and binding upon them the decision of the International Court of Justice rendered pursuant to this Special Agreement.

Article III Nothing in this Special Agreement shall affect the position of either Party with respect to the legal nature and seaward extent of the continental shelf, or any other maritime or resource zones of either Party, or its sovereign rights or jurisdiction for any other purpose under international law. Article IV Without prejudice to the Rules of Procedure as may be prescribed, and the control of the Court over proceedings before it pursuant to Article 48 of its Statute, both Parties agree that the proceedings shall commence upon submission of a certified copy of this Special Agreement by the Republic of Ruritania to the Registrar of the Court, in accordance with Article 40(1) of its Statute. For purposes of these proceedings, but without prejudice the

rights of either Party, the Republic of Ruritania is hereby designated as the Applicant and the Republic of Antonia the Respondent. Article V This Special Agreement shall enter into force on the date on which it is duly signed by the Foreign Ministers of both the Parties. DONE this 20th Day of the month of December, in the year Two Thousand and Twelve, at the United Nations, in the presence of the Secretary-General of the United Nations, Dr. Dan Ku Noon.

UNQUOTE Ruritania communicated the special agreement to the Registrar of the International Court of Justice pursuant to Article 40(1) of its Statute on 22nd December, 2012.