GROUP II- TEAM RATONA

PUBLIC INTERNATIONAL LAW MOOT COURT COMPETITION

Case Concerning the Delfino Archipelago Marine Protected Area

THE GOVERNMENT OF ASTERIA

APPLICANT

v.

THE GOVERNMENT OF RATONA

RESPONDENT

JD 2ND SEMESTER A.Y. 2016-2017

On Submission to the International Court of Justice

The Peace Palace, The Hague, The Netherlands

MEMORIAL FOR THE RESPONDENT

 TABLE OF CONTENTS

Table of Contents...................................................................................................................... i
Index of Authorities................................................................................................................ iii
Statement of Jurisdiction........................................................................................................ v
Questions Presented................................................................................................................ vi
Statement of Relevant Facts ................................................................................................. vii
Pleadings .................................................................................................................................. 1
I. THE ESTABLISHMENT OF DELFINO ARCHIPELAGO MARINE PROTECTED
AREA (MPA) AND THE MEASURES TAKEN BY RATONA DID NOT
CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW 1
A. Ratona has legitimately exercised its sovereign rights over Delfino Archipelago
based on Articles 56, 61, 192 and 194 of United Nations Convention on the Law of
the Sea (UNCLOS).............................................................................................. 1
B. Ratona has exercised its rights and performed its obligations in good faith and with
due regard to the rights and duties of other States based on Article 56(2) and 279 of
the UNCLOS and generally accepted principles of International
Law.................................................. 2
C. Asteria is precluded from asserting its traditional fishing rights upon its ratification
of the delimitation agreement without reference to their fishing rights based on the
doctrine of estoppel.............. 6
D. Ratona lawfully exercised its right to inspect foreign vessels within its EEZ under
Article 73(1) of the UNCLOS.................................................................................. 7

II. ASSUMING THAT ASTERIA HAS TRADITIONAL FISHING RIGHTS,

RATONAS SOVEREIGN RIGHTS PREVAILS OVER ASTERIAN TRADITIONAL
FISHING RIGHTS WITHIN RATONANS EEZ....... 9

A. Sovereign rights of a coastal state in EEZ weighs superior than the traditional
fishing rights accorded by customary International Law. 9
B. Ratona and Asteria are both parties to the UNCLOS 11
C. Ratona is not bound to recognize the traditional fishing rights of Asteria as there
exist no bilateral agreement between the two states.. 12
D. No express obligation for Coastal States to recognize traditional fishing rights
contrary to archipelagic states pursuant to UNCLOS........... 13

i
 III. ASTERIA DOES NOT HAVE ANY LEGAL CAPACITY TO ASK THE COURT
TO ABOLISH RATONAS MPA...... 15

Prayer for Relief ................................................................................................................... 17

ii
 INDEX OF AUTHORITIES

I.C.J & P.C.I.J. CASES

Case concerning delimitation of the Maritime Boundary in the Gulf of Maine Area,
(Canada/United States of America), I.C.J Rep. 246, Award of 12 October 1984................... 10
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18
March 2015................................................................................................................ 2, 4, 13, 14
Fisheries Case (United Kingdom v. Norway), Award of 18 December 1951........................... 6
Fisheries Jurisdiction Case (United Kingdom v. Iceland), Merits, Judgment, (1974) ICJ
Reports 3.. 14
Military and Parliamentary Activities in and against Nicaragua (Nicaragua v. United
States), Merits Judgement 1986, I.C.J. 14................................................................................ 6
Temple of Preah Vihear (Cambodia v. Thailand), Award of 15 June 1962............................. 6

OTHER INTERNATIONAL CASES

Arbitration between Kuwait and the American Independent Oil Company (Kuwait v.
Aminoil), Award of 24 May 1982............................................................................................. 4
Barbados v. Trinidad & Tobago, Award of the Arbitral Tribunal (2006) 45 ILM, 798......... 11
Lake Lanoux Arbitration (France v. Spain), 16 November 1957..........................................3, 4
South China Sea Arbitration (Philippines v. China), PCA No. 2013-19, Award of 12 July
2016............................................................................................................................. 10, 11, 15
The M/V Virginia G Case (Panama/Guinea-Bissau) Case No. 19. International Tribunal
for the Law of the Sea (ITLOS)................................................................................................ 7

NATIONAL CASES
The Republic of Indonesia, his Excellency Ambassador Soeratmin, and Minister Counsellor
Azhari Kasim, vs. James Vinzon, doing business under the name and style of Vinzon Trade
and Services, G.R. No. 154705, June 26, 2003....................................................................... 17

INTERNATIONAL AGREEMENTS
Convention on Biological Diversity.................................................................................... 3, 10
United Nations Convention against Corruption...................................................................... 16
United Nations Convention on the Law of the Sea..................... 1, 2, 3, 7, 9, 10, 12, 13, 14, 15
Vienna Convention on the Law of Treaties............................................................................. 11
UNITED NATIONS AND OTHER DOCUMENTS

iii
Bandung Conference (April 18-24, 1955)............................................................................... 16
Oxford Public International Law............................................................................................... 5
The United Nations Conference on International Organization (25 April 1945 to 26 June
1945)........................................................................................................................................ 17
United Nations Charter............................................................................................................ 16

iv
 STATEMENT OF JURISDICTION

Asteria, the Applicant, and Ratona, the Respondent, hereby submit this dispute

concerning the establishment of MPA in the Delfino Archipelago by Ratona, before this

Honourable Court, the International Court of Justice, pursuant to Article 40 (1) Statute of

International Court of Justice.

Ratona requests this Honourable Court to issue a judgment in accordance with the rules

and principles of International Law, including any applicable declarations and treaties.

v
 QUESTIONS PRESENTED

I. Whether the establishment of Delfino Archipelago Marine Protected Area (MPA) and

the measures taken by Ratona constitutes a violation of International Law.

II. Whether the traditional fishing rights of Asteria within Ratonans EEZ prevails over

Ratonas sovereign rights.

III. Whether Asteria have any legal Capacity to ask the court to abolish Ratonas MPA.

vi
 STATEMENT OF RELEVANT FACTS

Background of Ratona

Asteria and Ratona are states bordering the Sirena Sea, and their coastlines face each

other across the sea. Asterias economy is predominantly agriculture dependent; however, the

Asterian coastline along the Sirena Sea is not suitable for farming so the inhabitants engage in

small-scale fishing only. On the other hand, Ratona achieved economic growth upon discovery

of major inland oilfield.

The Delfino Archipelago is a group of islands situated in the Sirena Sea, which belongs

to the territory of Ratona. The Archipelago is rich in natural environment and surrounded by

waters so the inhabitants of these islands are mainly dependent on fishing to meet their living

needs. In fact, the fisherfolk of Asteria have been fishing in the waters surrounding the

Archipelago since 5th century.

NEGOTIATION ON DELIMITATION OF MARITIME BOUNDARY

Asteria and Ratona are both original members of the UNCLOS. Both states entered into

an agreement in 1995 for the purpose of delimiting the maritime boundary in the Sirena Sea

and the EEZ in the waters surrounding the Delfino Archipelago. Although Asteria demanded

special consideration of the fishing activities conducted by the Asterian fisherfolk, there was

no reference to the issue concerning the fishing rights of the Asterian fisherfolk in the

conclusion of the agreement. Moreover, they did not pursue to negotiate with Ratona about

their fishing concerns after they ratified the agreement. Subsequently, Ratona started to issue a

notification permitting Asterians to fish in the EEZ after their agreement.

vii
DEVELOPMENT OF DELFINO ARCHIPELAGO THROUGH THE EFFORTS OF

THE GOVERNMENT OF RATONA

Over the years, the economic progress of Ratona has resulted in the development of the

Delfino Archipelago as a resort destination. Tourism industries in the Archipelago became in

demand so the inhabitants, who had been fisherfolk in the past, are currently working in such

industries. Likewise, Asterian fisherfolk also started selling fish commercially to the traders.

INCREASE OF ENVIRONMENTAL AWARENESS IN RATONA

The growth of environmental awareness amongst people of Ratona has been paralleling

the rapid growth of its economy. National Government Organizations (NGOs) has started

actively engaging in campaigns for environmental protection in Delfino which have gained

widespread support from the public. Utopia, an international NGO, publicly proposed the

establishment of a Marine Protected Area (MPA) in the waters surrounding the Delfino

Archipelago, stating that the Archipelago, as a treasury of rare species, needs immediate and

sufficient environmental protection measures.

GREEN PARTY DENOMINATED THE NATIONAL PARLIAMENT IN RATONA

During the general election in Ratona, the Green Party, whose line is environmental

protection, became one of the leading parties in the national parliament election. Three parties,

including the Green Party, formed a tripartite coalition government since no party was able to

win by majority in the elections. Several members of Green Party were assigned to different

posts, including the post of environment minister.

viii
PROPOSAL OF MPA ENVIRONMENTAL POLICY

On March 2015, the environment minister of Ratona announced a new policy according

to which an MPA would be established in the territorial sea and the EEZ surrounding the

Delfino Archipelago based on its obligation to preserve its territorial waters. The new policy

prohibits the taking of any natural resource, whether living or non-living. The Government of

Asteria responded that the establishment of MPA would greatly affect their fishing activities

in that area and immediately calls for consultation with Ratona about the creation of the MPA.

It shall be noted that it was only after twenty years upon the proposal of MPA policy that the

Asterian Government raised the issue concerning their fishing rights from the 1995 agreement.

NEGOTIATIONS ON MPA

There are several attempts to negotiate the concerns in MPA between the governments

of Asteria and Ratona. However, there was no reference to the issue concerning the fishing

rights of the Asterian fisherfolk in those attempts. Asteria called for the withdrawal of the plan

for establishing the MPA, but Ratona refused as the protection of the marine environment of

the waters surrounding the archipelago is an urgent issue. Ratona submitted the draft legislation

for the establishment of an MPA, which prohibits the taking of any natural resources, whether

living or non-living, within the territorial sea and EEZ, except for marine scientific research

purposes.

Ratona have negotiated faithfully and made every effort to compromise with Asteria,

however, according to Ratona, protection of the marine environment of the Archipelago is an

urgent issue which requires the establishment MPA without option for delaying its enactment.

Furthermore, MPA in the Archipelago have gained widespread support from the public and

NGOs in Ratona. And the environment minister of Ratona offered to propose some kind of

compensation to the Asterian fisherfolk to be decided by the government.

ix
ESTABLISHMENT OF THE MPA

On October 2015, the Ratonan Parliament passed the legislation on establishing the

MPA. The new law entitled the Act to Establish the Delfino Archipelago Marine Protected

Area (MPA Act) came into force on November 2015.

INSPECTION OF ASTERIAN VESSEL

An Asterian fishing vessel found within the EEZ of Ratona was inspected by the

Ratonan Coast Guard in suspected violation of the MPA Act. Ratonan authorities, however,

did not arrest nor impose any penalty on the vessel. Such inspection was exercised by Ratona

in its legitimate jurisdiction on the basis of International Law and on their domestic legislation.

REFERRAL OF THE DISPUTE TO THE INTERNATIONAL COURT OF JUSTICE

On January 2016, both Asteria and Ratona jointly submitted the dispute to the Court by

concluding the Special Agreement based on Article 40(1) of the Statute of the International

Court of Justice. The Special Agreement provides that it is agreed by the Parties that Asteria

shall act as Applicant and Ratona as Respondent; however, such an agreement is without

prejudice to any questions as to the burden of proof.

MAIN DISPUTE OF PARTIES

ASTERIANS CASE

The Asterian Government condemned the establishment of the MPA Act by Ratona as

follows: Ratona did not negotiate with Asteria in good faith and has unilaterally established

the MPA. This is tantamount to violating the International Law applicable to both countries,

and this is totally unacceptable for us.

In December 2015, a patrol boat belonging to the Ratonan Coast Guard inspected an

Asterian fishing vessel within the Ratonan EEZ around the Delfino Archipelago in suspected

x
violation of the MPA Act. The Ratonan authorities did not arrest and impose any penalty on

the vessel. However, the foreign minister of Asteria strongly protested against Ratonas actions,

stating that the boarding inspection by Ratona of our vessels is illegal.

The Applicant, the Government of Asteria, asks the Court to adjudge and declare that:

(1) The establishment of the Delfino Archipelago MPA and the measures taken by

Ratona based on the MPA Act constitute violations of International Law.

(2) Accordingly, Ratona must assume responsibilities including the abolition of the

MPA Act.

RATONANS CASE

On the other hand, Raton asserted that they have negotiated faithfully and made honest

efforts to amicably settle with Asteria but still failed to reach an agreement. They also released

a statement that the Government of Ratona has exercised its legitimate jurisdiction on the

basis of International Law and our domestic legislation. Therefore, these are no grounds for

blaming us.

The Respondent, the Government of Ratona, asks the Court to adjudge and declare that:

(1) The establishment of the Delfino Archipelago MPA and the measures taken by

Ratona based on the MPA Act have not constituted violations of International Law.

(2) Accordingly, Ratona does not assume any responsibility. If Ratona were to have

violated International Law, the Government of Asteria does not have the right to ask the Court

to order the abolition of Ratonas MPA Act.

xi
 PLEADINGS

I. THE ESTABLISHMENT OF DELFINO ARCHIPELAGO MARINE

PROTECTED AREA (MPA) AND THE MEASURES TAKEN BY RATONA
DID NOT CONSTITUTE VIOLATIONS OF INTERNATIONAL LAW.

A. Ratona has legitimately exercised its sovereign rights over Delfino Archipelago
based on Articles 56, 61, 192 and 194 of United Nations Convention on the Law
of the Sea (UNCLOS)
The States have the obligation to protect and preserve the marine environment.1 In

relation to that, the integration of provisions of Exclusive Economic Zone (EEZ) Regime in

the UNCLOS is both a grant of sovereign rights and imposition of obligations on coastal states

in relation to the exploitation, conservation, and management of natural resources of the sea,

seabed, and subsoil within EEZ.2 Therefore, the primary obligation of a coastal State in the

UNCLOS is to protect and ensure that its natural resources within the EEZ are not over-

exploited.3 The coastal State may implement conservation and management measures to act in

accordance with its obligations.4

In Chagos Arbitration case, the Court declared that the Marine Protected Area (MPA)

in Chagos Archipelago is a measure for the protection and preservation over the marine

environment, which is contrary to United Kingdoms proposition that it is merely a fishing

measure in the exercise of its sovereign rights and with respect to the living resources of its

exclusive economic zone. Moreover, the Court stated that the MPA refers to the environmental

1
UNCLOS, art.192.
2
UNCLOS, art.56 (1). In the exclusive economic zone, the coastal State has: (a) sovereign rights for the purpose
of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the
waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of energy from the water, currents and
winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i) the
establishment and use of artificial islands, installations and structures; 44 (ii) marine scientific research; (iii) the
protection and preservation of the marine environment; (c) other rights and duties provided for in this
Convention.[UNCLOS, art.56(1)]
3
UNCLOS, art.61 (2). The coastal State, taking into account the best scientific evidence available to it, shall
ensure through proper conservation and management measures that the maintenance of the living resources in the
exclusive economic zone is not endangered by over-exploitation. As appropriate, the coastal State and competent
international organizations, whether sub regional, regional or global, shall cooperate to this end.
4
Ibid.

1
concerns that extend well beyond the management of fisheries. 5 Similarly, the MPA over

Delfino Archipelago is an exercise of Ratonas sovereign right to conserve and manage natural

resources, and an exercise of its jurisdiction in relation to the protection and preservation of

marine environment.6

Likewise, Ratona has sovereign rights to take measures that are necessary to prevent,

reduce and control pollution of the marine environment from any source.7 As explained in the

Chagos Arbitration case, the Tribunal rejects the suggestion that Part XII of the Convention,

relating to the protection and preservation of the marine environment, is limited to measures

aimed at controlling marine pollution. While the control of pollution is certainly an important

aspect of environmental protection, it is by no means the only one. 8 The Tribunal notes that

Article 194(5) includes measures taken which are necessary to protect and preserve rare or

fragile ecosystems.9

B. Ratona has exercised its rights and performed its obligations in good faith and
with due regard to the rights and duties of other States based on Article 56(2)
and 279 of the UNCLOS and generally accepted principles of International
Law

Every coastal state has the duty to act in good faith in exercising its rights and fulfilling

its obligations with due regard to the rights and duties of other states within its EEZ10. Hence,

a conduct of good faith is implicit in the duty of the coastal state to negotiate with other states

5
Chagos Marine Protected Area Arbitration (Mauritius v. United Kingdom), Award of 18 March 2015, [Chagos
Arbitration].
6
UNCLOS, art.56 (1), supra note 2.
7
UNCLOS, art.194 (1). States shall take, individually or jointly as appropriate, all measures consistent with this
Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source,
using for this purpose the best practicable means at their disposal and in accordance with their capabilities, and
they shall endeavour to harmonize their policies in this connection.
8
Chagos Arbitration, supra note 5.
9
UNCLOS, art.194 (5). The measures taken in accordance with this Part shall include those necessary to protect
and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened or endangered species and
other forms of marine life.
10
UNCLOS, art.56 (2). In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States and shall act in a
manner compatible with the provisions of this Convention.

2
concerning the latters rights and obligations, and the absence thereof in any negotiation is

invalid.11

In Chagos Arbitration Case, the ordinary meaning of due regard calls for the United

Kingdom to have such regard for the rights of Mauritius as is called for by the circumstances

and by the nature of those rights.12 The Tribunal declines to find in this formulation any

universal rule of conduct.13 The Convention does not impose a uniform obligation to avoid any

impairment of Mauritius rights; nor does it uniformly permit the United Kingdom to proceed
14
as it wishes, merely noting such rights. Rather, the extent of the regard required by the

Convention will depend upon the nature of the rights held by Mauritius, their importance, the

extent of the anticipated impairment, the nature and importance of the activities contemplated

by the United Kingdom, and the availability of alternative approaches. 15

Ratonas aim to

protect the marine environment is done with due regard to Asterias rights and duties. Even

though Asteria failed to raise as issue its claims on their fisherfolks rights, Ratona still issued

permits to allow them to fish on their territory. Aside from issuance of permits, Ratona further

negotiated faithfully and made honest efforts to amicably settle with Asteria, such as its offer

of compensation to safeguard the Asterian fishermen and its act of providing an exception to

the MPA Act, by which it prohibited the taking of any natural resource, except for conducting

marine scientific research. All acts done by the Government of Ratona is with due regard to

the circumstances surrounding such act, as well as the nature and extent of impairment or

damage that would possibly result in its exercise of sovereign right.

11
UNCLOS, art.279. States Parties shall settle any dispute between them concerning the interpretation or
application of this Convention by peaceful means in accordance with Article 2, paragraph 3, of the Charter of
the United Nations and, to this end, shall seek a solution by the means indicated in Article 33, paragraph 1, of
the Charter.
12
Chagos Arbitration, supra note 5
13
Ibid.
14
Ibid.
15
Chagos Arbitration, supra note 5

3
 Furthermore, on the basis of reciprocity, states are encouraged to enter into bilateral,

regional or multilateral arrangements on activities under its jurisdiction which greatly affects

the biological diversity of other States or areas beyond the limits of national jurisdiction.16

In the case of Lac Lanoux Arbitration one of the aspects of good faith appreciated by

the arbitration tribunal is the willingness to compromise.17 In this case, the tribunal described

the fundamental process of negotiation in good faith as one whose purpose is placed in

equilibrium with the interests in the conflict.18 Furthermore, the Tribunal is of the opinion that,

according to the rules of good faith, the upstream State is under the obligation to take into

consideration the various interests involved, to seek to give them every satisfaction compatible

with the pursuit of its own interests, and to show that in this regard it is genuinely concerned

to reconcile the interests of the other riparian State with its own.19

Another aspect of good faith valued by the tribunal is sustained maintenance of

significant negotiations as can be gleaned in the Arbitration between Kuwait and the American

Independent Oil Company (AMINOIL).20 In this case the tribunal identified good faith as part

of general principles to which parties, when embarking on a negotiation, are bound to comply

when carrying out an obligation to negotiate, namely good faith as properly to be understood:

sustained upkeep of negotiations over a period appropriate to the circumstances, awareness of

the interests of the other party, and a persevering quest for an acceptable compromise.21

16
Convention on Biological Diversity, art.14 (1) (c). Each Contracting Party, as far as possible and as
appropriate, shall: xxx c) Promote, on the basis of reciprocity, notification, exchange of information and
consultation on activities under their jurisdiction or control which are likely to significantly affect adversely the
biological diversity of other States or areas beyond the limits of national jurisdiction, by encouraging the
conclusion of bilateral, regional or multilateral arrangements, as appropriate.
17
Lake Lanoux Arbitration (France v. Spain), 16 November 1957.
18
Ibid.
19
Ibid.
20
Arbitration between Kuwait and the American Independent Oil Company (Kuwait v. Aminoil), Award of 24
May 1982.
21
Ibid.

4
 In Chagos Arbitration case, the Court ruled that UKs imposition of a unilateral MPA

which effectively extinguishes Mauritiuss traditional fishing rights in the territorial sea

surrounding the Chagos Archipelago will not constitute an abuse of its rights if UK must have

either: (a) secured the agreement of Mauritius; or alternatively (b) at least entered into genuine,

serious and good faith efforts to reach an agreement with Mauritius as to how those rights may

continue to be exercised.22

Ratona and Asteria have entered into negotiations in good faith concerning the latters

alleged fishing right over Delfino Archipelago to arrive at an acceptable compromise and to

reconcile their respective interests. Ratonas continuous offer and efforts to enter into an

amicable settlement with Asteria can be seen through the series of negotiations occurred

between them, however, both states failed to come up with an agreement. A state is free to

negotiate with other states and is not liable for failure to reach an agreement, provided it is

done in good faith. Thus, all the efforts of Ratona to negotiate with Asteria shows that Ratonas

unilateral declaration of MPA does not constitute an abuse of Asterias rights because it entered

into genuine, serious and good faith efforts to reach an agreement with Asteria as to how those

rights may continue to be exercised. Consequently, Ratona has no liability with Asteria on

account of the failed negotiations. On the contrary, despite of the failed negotiations, Ratonas

earnest and sincere efforts to settle the alleged fishing rights of Asteria can be appreciated

through its proposal of a possible compensation to safeguard such alleged rights of Asteria

which shows due regard of the coastal state to the rights of other States. Moreover, Ratonas

willingness to resolve the dispute before the International Court of Justice (ICJ) exhibits good

faith in settling the concerned fishing rights of Asteria. Therefore, all of these acts of Ratona is

in accordance with International Law.

22
Chagos Arbitration, supra note 5

5
 C. Asteria is precluded from asserting its traditional fishing rights upon its
ratification of the delimitation agreement without reference to their fishing
rights based on the doctrine of estoppel.

In the 1995 agreement, the governments of Ratona and Asteria delimited the maritime

boundary in the Sirena Sea and determined the EEZ in the waters surrounding the Delfino

Archipelago. While both States ratified the agreement, the government of Asteria did not raise

the issue concerning the fishing rights of the Asterian fisherfolks. Estoppel is a legal principle

that bars a party from denying or alleging a certain fact owing to that party's previous conduct,

allegation, or denial. The rationale behind estoppel is to prevent injustice owing to

inconsistency or fraud.23 Thus, as a general principle of International Law, Asteria is being

estopped from claiming its traditional fishing rights, as one should not benefit from his or her

own inconsistency.24 It is not contested that despite several attempts in negotiations, Asteria

only raised its claim to the fishing rights upon the proposal to establish the MPA, more or less

twenty years later from the delimitation agreement. This validly constitutes a presumption that

a State is held to have abandoned its right to oppose by the mere fact of silence. 25 Hence,

there is no need to consider other evidence which might give rise to a different inference, as

silence is conclusive in establishing estoppel.

In the Fisheries case, United Kingdom objected to the Norwegian system of

delimitation of its coastline along the North Sea. However, the Court held that the United

Kingdom should have illustrated its discontent with this system of delimitation earlier.26

Likewise, the Asterian government should have protested or raised its claim to fishing rights

in the earliest stage of negotiation, and not only upon the proposal of the new MPA policy.

In International Law, no higher government reigns over the parties; each sovereign

stands on an equal footing with every other. Thus, estoppel may be inferred from the conduct,

23
Oxford Public International Law (http://campus.unibo.it/180450/19/EPIL_Estoppel.pdf)
24
Temple of Preah Vihear (Cambodia v. Thailand), Award of 15 June 1962.
25
Ibid.
26
Fisheries Case (United Kingdom v. Norway), Award of 18 December 1951.

6
declarations and the like made by a State which has caused another State, in reliance on such

conduct, detrimentally to change position or suffer some prejudice. 27 It can then be said that

Ratona relied on the silence of the government of Asteria as to their fishing rights, thereby

unilaterally establishing the MPA Act, without reference to the claims made by Asteria as the

latter was precluded from asserting such traditional or historic claim.

Further, although Asteria demanded special consideration of the fishing activities, there

was no reference to the issue concerning the fishing rights of the Asterian fisherfolk in the

agreement. They did not pursue to negotiate with Ratona about their fishing concerns after they

have ratified the agreement. The agreement was ratified in 1995 and Asteria remained silent of

their historic claims until year 2015, or after almost twenty (20) years. It can therefore be

concluded that International estoppel is based on the principles of good faith and consistency

in international relations. It has been applied to cases of acquiescence and also binds States

even on unilateral declarations. Thus, such inconsistency of the government of Asteria gives

rise to estoppel, by which, the unilateral declaration of the MPA Act have been considered

binding between Ratona and Asteria.

D. Ratona lawfully exercised its right to inspect foreign vessels within its EEZ
under Article 73(1) of the UNCLOS
The coastal State has sovereign rights to explore and exploit living resources;

consequently it also has certain obligations with respect to the management of conservation of

the living resources in its EEZ.28 Coastal State has jurisdiction to sanction violations of laws

and regulations concerning living resources in its exclusive economic zone.

In M/V "Virginia G" case, the Tribunal has already stated that the enforcement measures

taken have to be necessary to ensure compliance with the laws and regulations adopted by

27
Military and Parliamentary Activities in and against Nicaragua (Nicaragua v. United States), Merits
Judgement 1986 I.C.J. 14.
28
UNCLOS, art.73 (1). The coastal State may, in the exercise of its sovereign rights to explore, exploit,
conserve and manage the living resources in the exclusive economic zone, take such measures, including
boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws
and regulations adopted by it in conformity with this Convention.

7
the coastal State in conformity with the Convention.29 In the view of the Tribunal the principle

of reasonableness applies generally to enforcement measures under article 73 of the

Convention. It takes the position that in applying enforcement measures due regard has to be

paid to the particular circumstances of the case and the gravity of the violation.

Ratona in the exercise of its sovereign rights to conserve and manage the living

resources in its EEZ may take such measures including inspection as may be necessary to

ensure compliance with the MPA Act. Thus, the act of Ratonan Coast Guard in inspecting the

Asterian fishing vessel within the Ratonan EEZ around Delfino Archipelago in suspected

violation of the MPA Act constitutes exercise of legitimate sovereign rights by Ratona, and is

not illegal, contrary to Asterias allegation. The mere presence of a fishing vessel within the

EEZ of Ratona is a strong indication of violation of MPA Act which prohibits fishing within

the EEZ, there is a probable cause for Ratona to take such precautionary measures. Moreover,

the inspection conducted by Ratona is commensurate to ensure compliance with the MPA Act.

It should be noted that Ratonan authorities did not arrest and impose any penalty on the Asterian

vessel when the latter was suspected in violating the MPA Act, therefore Ratona did not take

such measures in excess of its sovereign rights.

29
The M/V Virginia G Case (Panama/Guinea-Bissau) Case No. 19, International Tribunal for the Law of the
Sea (ITLOS).

8
II. ASSUMING THAT ASTERIA HAS TRADITIONAL FISHING RIGHTS,
RATONAS SOVEREIGN RIGHTS PREVAILS OVER ASTERIAN
TRADITIONAL FISHING RIGHTS WITHIN RATONANS EEZ.

A. Sovereign rights of a coastal state in EEZ weighs superior than the traditional
fishing rights accorded by customary International Law

The Law of the Sea Convention was clearly drafted so that the economic rights of

coastal states in their EEZ may have greater weight than any rights accorded to other states by

customary International Law.

The EEZ is not under the sovereignty of the coastal State but a specific legal regime

whereby coastal States have sovereign rights and jurisdiction over the natural resources in the

body of water, seabed and subsoil within their EEZ.30 Accordingly, a coastal States sovereign

rights over all living resources within their EEZ has completely superseded the traditional

fishing rights of other States. The only consideration that may be given to other states, provided

by UNCLOS, is to grant them access to the surplus of the allowable catch of the living resources

in the EEZ of a coastal State.31 However, coastal state is solely responsible for determining its

own allowable catch and surplus, if any.32 Such access is dependent on the coastal States

consent and discretion whether to grant or to deny the same to other States taking into account

all relevant factors such as the significance of the living resources of the area to the economy

of the coastal State concerned and its other national interests.33

30
UNCLOS, art.55. The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to
the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and
the rights and freedoms of other States are governed by the relevant provisions of this Convention [UNCLOS,
art.55].
31
UNCLOS, art. 62(2). The coastal State shall determine its capacity to harvest the living resources of the
exclusive economic zone. Where the coastal State does not have the capacity to harvest the entire allowable
catch, it shall, through agreements or other arrangements and pursuant to the terms, conditions, laws and
regulations referred to in paragraph 4, give other States access to the surplus of the allowable catch, having
particular regard to the provisions of articles 69 and 70, especially in relation to the developing States mentioned
therein [UNCLOS, art. 62(2)].
32
UNCLOS, art. 61(1). The coastal State shall determine the allowable catch of the living resources in its
exclusive economic zone.
33
UNCLOS, art.62 (3). In giving access to other States to its exclusive economic zone under this article, the
coastal State shall take into account all relevant factors, including, inter alia, the significance of the living
resources of the area to the economy of the coastal State concerned and its other national interests, the
provisions of articles 69 and 70, the requirements of developing States in the subregion or region in harvesting

9
 Moreover, States have the sovereign right to exploit their natural resources pursuant to

their environmental policies34 and their duty to protect and preserve the marine environment.35

Hence, other states shall have due regard to the rights and duties of the coastal State and shall

comply with the laws and regulations adopted by the coastal State.36 Likewise, it is within the

duty of Nationals of other States fishing in the exclusive economic zone to comply with the

conservation measures and with the other terms and conditions established in the laws and

regulations of the coastal State.37

Further, traditional fishing rights are not absolute or impervious to regulation, thus,

must necessarily be regulated to conserve the environment and prevent it from over-

exploitation.38 However, traditional fishing rights should be taken into consideration in

exceptional circumstances as laid down in the Gulf of Maine case, which provides for

catastrophic social and economic repercussions if fisheries rights are ignored.39

The same is reiterated in the Barbados/Trinidad and Tobago Arbitration where the

Court declared that Barbados has not succeeded in demonstrating that the results of past or

continuing lack of access by Barbados fisherfolk to the waters in issue will be catastrophic.

The Tribunal accepts that communities in Barbados are heavily dependent upon fishing, and

part of the surplus and the need to minimize economic dislocation in States whose nationals have habitually
fished in the zone or which have made substantial efforts in research and identification of stocks.
34
Convention on Biological Diversity, art.3. States have, in accordance with the Charter of the United Nations
and the principles of International Law, the sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.
35
UNCLOS, art.56 (1), supra note 2.
36
UNCLOS, art.58 (3). In exercising their rights and performing their duties under this Convention in the
exclusive economic zone, States shall have due regard to the rights and duties of the coastal State and shall
comply with the laws and regulations adopted by the coastal State in accordance with the provisions of this
Convention and other rules of International Law in so far as they are not incompatible with this Part.
37
UNCLOS, art.62 (4). Nationals of other States fishing in the exclusive economic zone shall comply with the
conservation measures and with the other terms and conditions established in the laws and regulations of the
coastal State.
38
South China Sea Arbitration (Philippines v. China), PCA No. 2013-19, Award of 12 July 2016, [Philippines
v. China].
39
Case concerning delimitation of the Maritime Boundary in the Gulf of Maine Area, (Canada/United States of
America), I.C.J Rep. 246, Award of 12 October 1984, para 237.

10
that the flyingfish fishery is central to that dependence. There may be injury to Barbados

nationals but such injury does not equate with catastrophe. Nor is injury in the course of

international economic relations treated as sufficient legal ground for border adjustment. 40

However, the case at bar does not fall within the exceptional circumstance as reiterated

in Gulf of Maine case in order for Asterias traditional fishing rights to be recognized by

Ratona because there is no catastrophic social and economic repercussions if the fishing rights

of Asterian fisherfolk are ignored.

B. Ratona and Asteria are both parties to the UNCLOS

It is undisputed that both Ratona and Asteria are original parties to the UNCLOS. Under

International Law, once a state ratified a treaty, the state concerned is bound by the rules laid

down in that treaty.41

In the case of South China Sea Arbitration42, the following propositions fall within the

basic rule of pacta sunt servanda:

1. To adjudge and declare that China shall respect the rights and freedoms of the

Philippines under the Convention.

2. To adjudge and declare that China shall comply with its duties under the Convention,

including those relevant to the protection and preservation of the marine environment

in the South China Sea.

3. To adjudge and declare that China shall exercise its rights and freedoms in the South

China Sea with due regard to those of the Philippines under the Convention.

40
Barbados v. Trinidad & Tobago, Award of the Arbitral Tribunal (2006) 45 ILM, 798, para 15.
41
Vienna Convention on the Law of Treaties, art.26. "PACTA SUNT SERVANDA" Every treaty in force is
binding upon the parties to it and must be performed by them in good faith.
42
Philippines v. China, supra note 35.

11
 In essence, what the Philippines is requesting is a declaration from the Tribunal that

China shall do what it is already obliged by the Convention to do. Further, States Parties shall

fulfil in good faith the obligations assumed under this Convention and shall exercise the rights,

jurisdiction and freedoms recognized in this Convention in a manner which would not

constitute an abuse of right.43 Thus, both Parties are obliged to comply with the Convention,

including its provisions regarding the resolution of disputes, and to respect the rights and

freedoms of other States under the Convention.

Both Ratona and Asteria as original parties in UNCLOS, shall be bound by the

provisions in said Convention and has the obligation to comply with it in good faith. Whatever

rules that may be applied before beyond contiguous zones are already superseded and regulated

by the EEZ regime under UNCLOS, which has been widely accepted by States. Asteria had

ratified UNCLOS with full knowledge of such regime, therefore, agreeing to be bound by the

rules UNCLOS created, particularly the rules regarding historic titles and EEZ regime, thereby

absorbing such historic rights. Therefore, any historic claim, such as traditional fishing rights

that Asteria may have in Delfino Archipelago, will not prevail over Ratonas sovereign rights

as Ratona, being a coastal state, is under no obligation to recognize them since by accepting

the EEZ regime, Asteria has given up any claims it may have had based on traditional or historic

fishing rights.

C. Ratona is not bound to recognize the traditional fishing rights of Asteria as

there exist no bilateral agreement between the two states
As an incident of the sovereign rights of a coastal state, Ratona is not bound to recognize

the traditional fishing rights of Asteria, unless both parties will enter into bilateral agreement.

The delimitation of the exclusive economic zone between States with opposite or adjacent

43
UNCLOS, art. 300. States Parties shall fulfil in good faith the obligations assumed under this Convention and
shall exercise the rights, jurisdiction and freedoms recognized in this Convention in a manner which would not
constitute an abuse of right.

12
coasts shall be effected by agreement on the basis of International Law. 44 In most cases,

bilateral agreement as to delimitation of maritime boundaries contains provisions regarding

traditional fishing rights of another state, which shows recognition by the coastal state.

It was further held in Icelandic Fisheries Jurisdiction case that where historic

fishing rights of a third state continues to exist within the EEZ of a coastal state, such rights

were usually recognized through bilateral agreements between the states concerned.45

Although Asteria demanded special consideration of the fishing activities conducted by

Asterian fisherfolk in the Delfino Archipelago, the agreement concluded between Asteria and

Ratona in 1995 was concerned only about the delimitation of boundaries in the Sirena sea,

without reference as to the issue of fishing rights Asterian fisherfolk. Since ratification of this

agreement, Asteria have not raised their concerns to negotiate the fishing operations of the

Asterian fisherfolk in the EEZ surrounding the Delfino Archipelago until the proposal of MPA.

In conclusion, there was no bilateral agreement providing for Asterias fishing rights, thus,

Ratona is not bound to recognize Asterias claim on traditional fishing rights.

D. No express obligation for Coastal States to recognize traditional fishing rights

contrary to archipelagic states pursuant to UNCLOS
It has been generally emphasized that the EEZ regime precludes States from making

claims to traditional fishing rights in the EEZ of other States, thereby maintaining the argument

that no obligation is expressly provided for under UNCLOS that Coastal States have to

recognize historic rights unlike in archipelagic states. 46 The latter shall respect the agreement

44
UNCLOS, art. 74(1).The delimitation of the 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.
45
Fisheries Jurisdiction Case (United Kingdom v. Iceland), Merits, Judgment, (1974) ICJ Reports 3.
46
UNCLOS, art.55, supra note 27.

13
with other states and shall recognize traditional fishing rights of bordering state within any part

of the archipelagic waters. 47

In Philippines v. China, the court emphasized the different treatments of traditional

fishing rights with regard to the archipelagic waters, exclusive economic zone and territorial

sea.48 Meanwhile, the requirements and conditions of the rights shall be based upon the related

states and regulated within the bilateral agreement.

For the coastal states, traditional fishing rights has not been expressly reserved in the

provisions under EEZ. However, a consideration for traditional fishing in the EEZ is provided

under Article 62 of UNCLOS, although the terms traditional and historic are not used. 49

Ratona is solely responsible for determining its own total allowable catch, and therefore the

surplus, if any. The provision only requires for Ratona to consider. Fishing practices of other

States within EEZ are merely considerations to be taken into account by Ratona as a Coastal

state, and thus it is within its discretion. The concept of historic rights remains relevant only to

the extent that it is among the factors to be taken into account in giving access to surplus fish.
50

47
UNCLOS, art.51(1) Without prejudice to article 49, an archipelagic State shall respect existing agreements
with other States and shall recognize traditional fishing rights and other legitimate activities of the immediately
adjacent neighbouring States in certain areas falling within archipelagic waters. The terms and conditions for the
exercise of such rights and activities, including the nature, the extent and the areas to which they apply, shall, at
the request of any of the States concerned, be regulated by bilateral agreements between them. Such rights shall
not be transferred to or shared with third States or their nationals.
48
Philippines v. China, supra note 35.
49
UNCLOS, art. 62(2), supra note 28.
50
Ibid.

14
III. ASTERIA DOES NOT HAVE ANY LEGAL CAPACITY TO ASK THE COURT
TO ABOLISH RATONAS MPA

If Ratona were to have violated International Law, the Government of Asteria does not

have the right to ask the Court to order the abolition of any of its laws particularly, the MPA

Act, on the ground that State cannot assail the laws of another State based on Doctrine of

Sovereign Equality.

A state has fundamental rights and one of them is equality with all other states. This

right is inherent in the concept of a state as a subject of International Law and is generally

acknowledged by established state practice. The principle of sovereign equality is reflected in

the Charter of the United Nations and is recognized by the international community. It provides

that "organization, based on the principle of equality, has sovereignty of its members. 51 In

like manner, this principle is embodied in United Nations Convention against Corruption.52

The principle of sovereign equality of states is one of the five principles of peaceful

coexistence that was laid-down in Asian-African Conference 1955 in Indonesia53 with all third

world governments and was approved by all members. The principle of sovereign equality

simply means that all states have equal sovereign right and this right must be respected by

governments regardless of differences in economic, social, political, demographic, geographic,

etc.

The principle of sovereign equality of States was also reflected at the San Francisco

conference. 54 The conference stated that "the principle of the sovereign equality of states is

understood in the following elements: (1) Governments are legally equal;(2) Each State benefit

51
United Nations Charter, art.2 (1). The Organization and its Members, in pursuit of the Purposes stated in
Article 1, shall act in accordance with the following Principles. 1. The Organization is based on the principle of
the sovereign equality of all its Members. xxx
52
United Nations Convention against Corruption, art.4 (1). States Parties shall carry out their obligations under
this Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States
and that of non-intervention in the domestic affairs of other States.
53
Bandung Conference (April 18-24, 1955)
54
The United Nations Conference on International Organization (25 April 1945 to 26 June 1945), [UNCIO].

15
from its inherent rights, according to its sovereign; and (3) The legal character of the

government is respected, as well as the territorial integrity and political independence of it, is

respected. 55 Thus, as a whole, Ratona has an equal sovereignty as to Asteria.

In a related case, the case of Republic of Indonesia v. Vinzon, this Court enunciated that

in cases involving foreign states; the basis of sovereign immunity is the maxim par in parem

non habet imperium.56 Founded on sovereign equality, a state cannot assert its jurisdiction over

another. To do so otherwise would "unduly vex the peace of nations." It supports the idea and

the principle of sovereign equality that a state has no right to assail the laws of another state.

Based on the foregoing, the conduct of Asteria in assailing the MPA Act in Delfino

Archipelago would infringe Ratonas inherent rights and violate the principle of sovereign

equality. These sums up that Asteria shall have no right to ask the Court to abolish the MPA

Act of Ratona even if the latter were to violate International Law, as both states have an equal

sovereign right under fundamental and generally accepted principles of International Law.

55
UNCIO, supra note 55.
56
The Republic of Indonesia, his Excellency Ambassador Soeratmin, and Minister Counsellor Azhari Kasim,
vs. James Vinzon, doing business under the name and style of Vinzon Trade and Services, G.R. No.
154705, June 26, 2003.

16
 PRAYER FOR RELIEF

The Federal Republic of Ratona respectfully requests this Honorable Court to adjudge

and declare that:

1. The establishment of Delfino Archipelago MPA and the measures taken by Ratona

based on the MPA Act have not constituted violations of International Law.

2. Ratona does not assume any responsibility.

3. With reference to No. 2, if Ratona indeed have violated International Law, the

Government of Asteria does not have the right to ask the court to order the abolition of Ratonas

MPA Act.

Respectfully submitted,
AGENTS FOR RATONA

17