Beruflich Dokumente
Kultur Dokumente
NETHERLANDS
In the matter of
State of Layona
Applicant
V.
Respondent
TABLE OF CONTENT.............................................................................................................ii
INDEX OF AUTHORITIES.....................................................................................................iii
STATEMENT OF FACTS........................................................................................................iv
STATEMENT OF JURISDICTION.........................................................................................vi
SUMMARY OF ARGUMENTS............................................................................................viii
ARGUMENTS ADVANCED....................................................................................................1
1. The International Court of Justice has the jurisdiction on this case under Article
36(2). 1
2. The resource exploration and research conducted by the Federal Republic of Liliput,
LOC and LMRI in the Adrean Sea Constitutes a violation of International Law. 3
ii
INDEX OF AUTHORITIES
Cases
Delimitation of the Maritime Boundary in Gulf of Maine Area (Can. v. U.S.), 1984 .C.J. 246
(Judgment of Oct. 12)............................................................................................................4
Guyana v. Suriname (P.C.A. Award of Sep. 17, 2007)...............................................................3
North Sea Continental Shelf Cases, [1969] ICJ Rep. 4..............................................................4
Nuclear Tests Case, ICJ Reports, 1974......................................................................................2
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012
(II)..........................................................................................................................................1
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)................................................................................................................................1
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ Reports (2010).
................................................................................................................................................1
Statutes
Article 238 United Nations Convention on the Law of Seas, 1982...........................................3
Article 55 United Nations Convention on the Law of Sea, 1982...............................................3
Article 74 (3) United Nations Convention on the Law of Seas, 1982.......................................3
Article(s) 74 (1) and 83 (1) United Nations Convention on the Law of Sea, 1982...................4
Preamble, United Nations Convention on the Law of Seas, 1982.............................................2
Reports
Land and Maritime Boundary between Cameroon and Nigeria, IC] Reports (2002), pp. 303,
429 (para. 264).......................................................................................................................2
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports
(2001), pp. 40, 68, ¶89...........................................................................................................2
Treatise
Anthony D’Amato, Good Faith, in 2 Encyclopedia Of Public International Law 599, 600
(Rudolf Bernhardt ed., 1995).................................................................................................1
Dr. Oliver Dörr, Dr. Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A
Commentary (2011, Springer) 129.........................................................................................2
Articles
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..........................................................................................................................................4
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.................5
iii
STATEMENT OF FACTS
Both the State of Layona and the Federal Republic of Liliput are States bordering the Adrean
Sea, and their coastlines face each other across the sea. The distance between the States’
coastlines is less than 400 nautical miles. Layona’s coastline on the Adrean Sea is longer than
that of Liliput. Layona ratified the United Nations Convention on the Law of the Sea
(UNCLOS), but Liliput only signed it. Both States are members of the United Nations.
Maritime boundary delimitation in the Adrean Sea has been a long-standing concern for
Layona and Liliput. Each State claims a 200-mile exclusive economic zone (EEZ) and the
continental shelf from its own coastline, and no agreement on maritime boundary between the
two States has been reached. In 2013, Liliput Oil Corporation (hereinafter, LOC), a petroleum
company run by the Government of Liliput, launched oil drilling in several offshore oilfields
in the Adrean Sea near Liliput’s coastline, and these oilfields produced high-quality oil. These
oilfields are all located in the area where only Liliput has claimed an EEZ and the continental
Layona decided to start exploring oil resources in the Adrean Sea, near
the median line. Since the Government and its domestic companies have
On the other hand, the Government of Liliput instructed LOC to carry out a
seismic survey
iv
around the Adrean Sea median line. LOC explored the Liliput side in the
vicinity of the median line using a seismic survey ship, as instructed. This
exploration was conducted by making full use of the most advanced, high-
2013, LOC has conducted a seismic exploration on the Liliput side of the
Adrean Sea median line and confirmed the presence and location of
exposure of methane hydrate in the area near the median line between
Liliput and Layona and succeeded in taking samples of the resource for
the Government of Liliput and LOC and the research for methane hydrate
carried out by LMRI, alleging that the exploration and the research
v
STATEMENT OF JURISDICTION
The applicant most humbly submits that this court has the jurisdiction to here the matter
vi
ISSUES FOR CONSIDERATION
vii
SUMMARY OF ARGUMENTS
1. The International Court of Justice has the jurisdiction on this case under Article
36(2).
The reservation of the UNCLOS is only available for disputes arising out of maritime
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. It allows a third state to be
bound by customary rule of International Law, hence, providing ICJ jurisdiction over
this matter.
UNCLOS emphasizes on the need for mutual agreement between States before
without the consent of the Applicant, the Respondent’s conduct has violated principles
of international law. The principle of equidistance which involves taking the median
line as the solution for delimitation disputes is not recognized under customary
viii
ARGUMENTS ADVANCED
1. The International Court of Justice has the jurisdiction on this case under
Article 36(2).
The definition of maritime delimitation was used by the International Court of Justice in
Nicaragua v Colombia1, where it was found that maritime delimitation refers to “the task of
between the maritime areas concerned”. Further, in case of Australia v Japan 2, it was held that
that mere questioning of maritime entitlements do not render the issue of the case to be that
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’). Therefore, the present case does not fall
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. 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. 3 While good faith, in itself, is not a source of obligation 4, it
is the underlying principle that determines the extent of an already existing obligation. In the
1
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II).
2
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ Reports (2010).
3
Anthony D’Amato, Good Faith, in 2 Encyclopedia Of Public International Law 599, 600 (Rudolf Bernhardt ed., 1995).
4
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).
Nuclear Tests Case5, where this Court’ held the principle of good faith to be ‘an essential tool
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 Bahrain8, 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. 9 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
LMRI 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
5
Nuclear Tests Case, ICJ Reports, 1974.
6
Ibid.
7
Land and Maritime Boundary between Cameroon and Nigeria, IC] Reports (2002), pp. 303, 429 (para. 264).
8
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports (2001), pp. 40, 68, ¶89.
9
Preamble, United Nations Convention on the Law of Seas, 1982.
10
Dr. Oliver Dörr, Dr. Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (2011, Springer)
129.
2
2. The resource exploration and research conducted by the Federal Republic of
Liliput, LOC and LMRI in the Adrean Sea Constitutes a violation of
International Law.
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”. 11 From the plain reading
of Article 74 (3) of UNCLOS that deals with the Exclusive Economic Zone (“EEZ”) 12 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 Adrean 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
Suriname13. The court went on to state that unilateral acts such as seismic exploration 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.14
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. 15 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
11
Article 238 United Nations Convention on the Law of Seas, 1982.
12
Article 74 (3) United Nations Convention on the Law of Seas, 1982.
13
Guyana v. Suriname (P.C.A. Award of Sep. 17, 2007).
14
Guyana v. Suriname, (P.C.A. Award of Sep. 17, 2007).
15
Article 55 United Nations Convention on the Law of Sea, 1982.
3
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.
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
North Sea Continental Case17 minimized the importance of the equidistance principle 18. 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 law 19.”
Similarly, in the Gulf Maine Case20 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 circumstance 21. 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 the said assumption of
the Respondent. Hence, the unilateral resource exploration and exploitation by the
In the Gulf of Tonkin (China-Vietnam Dispute)22, 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
16
Article(s) 74 (1) and 83 (1) United Nations Convention on the Law of Sea, 1982.
17
North Sea Continental Shelf Cases, [1969] ICJ Rep. 4.
18
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.
19
North Sea case, Merits of Judgment of 20 February 1969. Preamble ¶ 3.
20
Delimitation of the Maritime Boundary in Gulf of Maine Area (Can. v. U.S.), 1984 .C.J. 246 (Judgment of Oct. 12).
21
Ibid.
22
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.
4
distribution of wealth. Since the Respondent has very sophisticated and developed technology
and other monetary resources for exploitation. Keeping in mind the equity and the customary
and the codified principles of international law, there should be immediate suspension of all
5
PRAYER FOR RELIEF
Wherefore in the light of facts stated, issue raised, arguments advanced, and authorities cited
it is most respectfully and humbly prayed before the International Court of Justice that it may,
DECLARE that the International Court of Justice has Jurisdiction over the matter related to
exploration of resources.
DECLARE that the resource exploration and research conducted by the Government of the
Federal Republic of Liliput, LOC and LMRI in Adrean Sea Constitutes a violation of
International Law.
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 pass any other order as it so deems fit in the ends of justice, equity and good conscience.