735R

IN THE INTERNATIONAL COURT

OF JUSTICE

AT THE PEACE PALACE,
THE HAGUE, NETHERLANDS
THE CASE CONCERNING CERTAIN ACTIVITIES
IN THE MALACHI GAP

STATE OF AMALEA
(APPLICANT)
v
REPUBLIC OF RITANIA
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT


2014 Philip C Jessup
International Law Moot Court Competition

ii

TABLE OF CONTENTS






















iii

INDEX OF AUTHORITIES






















iv

STATEMENT OF JURISDICTION

Pursuant to the Joint Notification and Compromis concluded on 17 September 2013 at
The Hague, The Netherlands, between the State of Amalea and the Republic of Ritania
(collectively the Parties), and in accordance with Article 40(1) of the Statute of the
International Court of Justice, the Parties hereby submit to this Court its claims concerning
Certain Activities within the Malachi Gap.

This Court is requested to decide the Case on the basis of the rules and principles of
international law, including any applicable treaties. In accordance with Article 36(1) of the
Courts Statute, the Parties shall accept any Judgment of the Court as final and binding upon
them and shall execute it in its entirety and in good faith.











v

QUESTIONS PRESENTED

The Republic of Ritania respectfully asks this Court:
1. Whether Ritanias conduct with respect to the Excelsior Island project complied
in all respects with its obligations under international law and the terms of the
Malachi Gap Treaty, and Ritania has no obligation to compensate Amalea for any
loss or damage allegedly caused by the 2009 landslide.
2. Whether Milo Bellezzas salvage of the Cargast is unlawful, and the cargo and
artifacts recovered from the wreck properly belong to Ritania, which has the right
to protect them.
3. Whether the Amalean Navys pursuit of Oscar de Luz into Ritanias EEZ, and his
subsequent arrest, were illegal.
4. Whether Amalea was without jurisdiction to try Luz in connection with the
Rosehill collision, and must return him to Ritania immediately.









vi

STATEMENT OF FACTS

The Republic of Ritania is a developed and industrialized peninsular state that lies
adjacent to the State of Amalea. Both states are separated by the Strait of Malachi.

On April 1983, Ritania signed and ratified the 1982 Convention on the Law of the Sea
(UNCLOS), and claimed a 200 nautical mile exclusive economic zone (EEZ). In the same year,
Ritania declared that where there are overlapping claims to the EEZ, these matters shall be
determined by Ritania and the other state in accordance with international law.

Amalea and Ritania became State Parties to the Malachi Gap treaty dated March 30,
1992. The Treaty provides that the objective of the parties to the Treaty was to balance, and
insofar as possible to promote, the interests of the States Parties in respect of exploration,
exploitation, and protection of this maritime area of great importance to them both. In the treaty,
areas previously claimed by each state as its Exclusive Economic Zone outside of the Malachi
Gap were stipulated to constitute that states uncontested EEZ. The Treaty allowed Amalea to
protect vital fisheries resources within the Strait of Malachi while allowing Ritania to develop
subsea resources such as the Erebus gas field.
On late 2006, Ritanian billionaire Esmeralda Kali announced her intention to finance the
construction of Excelsior Island (artificial island) on the Sirius Plateau, just outside the Malachi
Gap, entirely within Ritanias uncontested EEZ.
Upon learning of the proposal to build Excelsior Island. Amaleas Foreign Minister
summoned the Ritanian Ambassador and they had ameetingthe Amalean Foreign Minister made
vii

known their objections to the said project.The following day, the Ritanian Ambassador
responded stating that Excelsior Island itself will be built entirely outside of the Malachi Gap and
within Ritanias uncontested EEZ. Therefore, Amaleas consent for the project is not required.
Ritania will take appropriate measures to ensure that such activities are carried out in full
compliance with Ritanian law, as well as with Ritanias obligations under the Malachi Gap
Treaty and any applicable norms of international law.
As part of the Ritanian licensing process, Excelsior Island Gas & Power Limited (EIGP)
was required to conduct an environmental impact assessment (EIA) for the Excelsior Island
project. Under Ritanian law, an EIA for a proposed marine development project is reviewed by
Ritanias Department of Resource Management and any other government agency claiming a
specific interest.
Amalea maintained that Ritania had no right to engage in or to allow dredging within the
Malachi Gap while Ritania maintained that its regulatory processes complied with international
law.
In early 2008, EIGP submitted an EIA for the Excelsior Island project.
Having received approval from the Ritanian government of its EIA and its other project
information, EIGP was granted a permit to construct Excelsior Island on 1 August 2009. Amalea
objected when it heard that the project was to push through and sought an order from the
International Court of Justice, requiring Ritania to halt the project. The Court, however,
concluded by eight votes to seven that the circumstances are not such as to require the exercise
of its power under Article 41 of the Statute to indicate provisional measures.
On January 2010, a Ritanian oil and gas exploration vessel conducting sonar mapping
operations in the Malachi Gap and discovered the wreck of the schooner Cargast, whose captain
viii

was Baldric Verdigris. Ritanian history books describe Baldric Verdigris as a ruthless Amalean
pirate, responsible for the plunder and destruction of the Ritanian capital of Helios during 4
March 1510. Verdigris and his crew laid siege to Helios and stole most of the towns prized
religious and cultural icons as well as other precious objects. Among the objects stolen was the
Sacred Helian Coronet, which was placed on the heads of Ritanian monarchs. Over the centuries
the Coronet has acquired mythical importance in Ritanian iconography, and is even reflected in
the flag of Ritania to the present day. Historians are unanimous in their assumption that the cargo
that went down with the Cargast, lay somewhere in the depths of the Strait of Malachi, contained
not only the Coronet but also a vast array of precious artifacts obtained during the Sack of
Helios.
Amalean Prime Minister Beesley responded to the discovery, claiming the Cargast and
all of the cargo that might be on board. The President of Ritania immediately responded with a
feeling of deep offense that Amalea, or any other country, would claim ownership or control of
its nations birthright.
During the commemoration of the 500
th
anniversary of the Sack of Helios, Ritanian
Minister of Cultural Affairs Gloria de Sousa declared that if later investigations revealed the
presence of the Sacred Helian Coronet on board the ship, it would be the realization of a dream
of generations of their ancestors, and will welcome home this revered symbol of its nation. She
also noted that the media had in recent days reported the arrival at Amaleas main airport of a
number of internationally known divers experienced in recovering treasure lost at sea, and stated
that Ritania will not tolerate the presence of looters of any nationality anywhere near the
Cargast.
ix

On January 2011, the Amalean Cultural Affairs Ministry announced that it had acquired
five objects recovered from the wreck by Milo Bellezza, a well-known deep sea treasure hunter
of Swiss nationality. These included an item that appeared to be the Sacred Helian Coronet.
Amaleacontracted with Bellezza to explore the wreck and recover items therefrom.
The Ritanian government, through its embassy in Amalea, strongly objected to what it
called the systematic looting of the wreck of the Cargast, Ritania also demanded that Amalea
immediately hand over the items plundered by the modern-day pirate Milo Bellezza, who
proposes to consummate the theft of Ritanias birthright.
On June 2011, the Amalean Ministry granted Milo Bellezza, acting as agent for and on
behalf of the Republic of Amalea, the status of salvor of the wreck of the Cargast. Ritanian
President Lipman immediately issued a public statement, denouncing Amaleas granting of a
license to Bellezza as a violation of the letter and spirit of the Malachi Gap Treaty as well as
customary international law and should be declared null and void. Ritania also seek the return of
the Sacred Coronet and the items already in Amaleas possession.
On February 13, 2011, the Rosehill, an Amalean-registered cruise ship, departed from
Amalea and headed towards Ritania. Helios was to be the Rosehills first port of call. Since
Excelsior Islands hydroelectric plant was completed and final steps were being taken to develop
the wind farm, the customers obtained permission to navigate the Rosehill close to the Island.
As the Rosehill approached Excelsior Island, the Daedalus, a stolen Ritanian-flagged
yacht under the control of Oscar de Luz, a Ritanian citizen, was speeding towards the Island. The
captain of the Rosehill, saw that his ship was on a collision course with the fast-approaching
Daedalus, and tried to maneuver the Rosehill away. He was forced to veer toward the Island and
to accelerate in order to avoid an imminent collision and struck the Island with significant force.
x

The impact caused ruptures to three oxy-fuel storage tanks on the island, which caused
explosions that killed five of the Ritanian nationals working on Excelsior Island.
Luz steered the Daedalus away from the Island to the northwest and drew within 23
nautical miles of Amaleas coastline. It was picked up on radar by the Icarus, an Amalean Navy
Fast Response Cutter, under the command of Captain Walter Haddock. Haddock set out at full
speed to intercept the Daedalus. When the Icarus was within visual range, Haddock ordered the
Daedalus to stop. Instead, Luz turned the Daedalus and sped towards Ritania. Haddock pursued
the Daedalus, crossing into Ritanias uncontested EEZ. In an attempt to get the Icarus to veer
away, Luz steered the Daedalus straight towards the Icarus. Captain Haddock kept his vessel on
course and the ships collided at high speed. The Daedalus began to sink rapidly. Luz was
captured by Haddocks crew where they declared him under arrest, then brought him on board
the Icarus.
Amaleas Attorney General concluded that her countrys courts had jurisdiction to try
Luz for violations of Amalean criminal laws. Ritania immediately filed a formal protest with the
Amalean Embassy, claiming that the arrest and prosecution of Luz, a Ritanian citizen, were
illegal under international law and argued that it had exclusive jurisdiction over the alleged
offenses, and demanded that Luz immediately be returned to Ritania for investigation. Amalea
declined to repatriate Luz and proceeded to put him on trial.
After several months of unsuccessful negotiations, the parties decided to refer their
differences to the International Court of Justice, and for this purpose have agreed to the terms of
a Special Agreement. In addition, Amalea has agreed to place all objects removed from the
Cargast, and any others that might be brought to the surface during the pendency of this case by
Milo Bellezza, in escrow held by the Ministry of Culture of the Government of Canada.
xi

SUMMARY OF PLEADINGS

I. Ritania violated the terms of the Malachi Gap Treaty in allowing the Excelsior Island and
Gas Power, Limited (EIGP) to conduct dredging within the Malachi Gap. Article 12 of
the said treaty states that neither party shall exercise its rights under the agreement to the
prejudice of the interests of the other. Since the dredging adversely affected the fate of
the Dorian Wrasse population to which Amalea was economically dependent, such an
activity constituted a breach of the Malachi Gap Treaty. Ritania also failed to perform its
obligation under customary international environmental law to conduct a comprehensive
Environmental Impact Assessment (EIA) which would include the impact of the dredging
towards the fish population within the Malachi Gap. Having breached an international
obligation, Ritania committed an internationally wrongful act and therefore must take
responsibility by compensation as provided for in the Articles on the Responsibility of
States for Internationally Wrongful Acts.
II. Amalea has a better right to the Cargast and all its contents under the law of finds and the
law on salvage, to the extent allowed by the UNESCO Convention on the Protection of
Underwater Cultural Heritage. Under the same convention, the subsequent salvage by
Milo Belleza of the Cargast was also lawful and allowable by virtue of the exceptions
mentioned in the Conventions Article 4.
III. Amalea was entitled to pursue Oscar de Luz, invoking the right to hot pursuit under
Article 23 of the 1958 Geneva Conventions on the High Seas. Since there was a valid
exercise by Amalea of the right of hot pursuit, the subsequent arrest of Oscar de Luz was
also clothed with validity since it was incidental to the lawful hot pursuit.
xii

IV. Amalea had jurisdiction to try and convict Ritanian citizen Oscar de Luz because the
territoriality principle applies to enable Amalea to exercise jurisdiction to try and convict
Oscar de Luz for all the victims aboard the Rosehill. Another principle at work, the
passive personality principle justifies the exercise of jurisdiction by Amalea over Oscar
de Luz. Ritania cannot avail of the flag-State jurisdiction over the Ritanian-flagged
Daedalus to justify their claim because Oscar de Luz was not the master thereof. Lastly,
Ritania cannot claim jurisdiction based on the existence of a safety zone around Excelsior
Island and Amalea has no obligation to return Oscar de Luz to Ritania because
extradition does not apply to the case at hand.














1

PLEADINGS

Submission 1 (Respondent)

RITANIAS CONDUCT WITH RESPECT TO THE EXCELSIOR ISLAND PROJECT
COMPLIED IN ALL RESPECTS WITH ITS OBLIGATIONS UNDER INTERNATIONAL
LAW AND THE TERMS OF THE MALACHI GAP TREATY, AND RITANIA HAS NO
OBLIGATION TO COMPENSATE AMALEA FOR ANY LOSS OR DAMAGE ALLEGEDLY
CAUSED BY THE 2009 LANDSLIDE.

I. Ritanias conduct with respect to the Excelsior Island Project complied in all respects with its
obligations under international law and the terms of the Malachi Gap Treaty.

A. Ritanias conduct with respect to the Excelsior Island project complied in all
respects with its obligations under international law, specifically under the
provisions of the 1982 United Nations Convention on the Law of the Sea
(UNCLOS), the Environmental Law Guidelines And Principles On Shared
Natural Resources, and the customary law requirement of the
Environmental Impact Assessment (EIA).

Ritania is a state party to the 1982 United Nations Convention on the Law of the Sea
(UNCLOS), having signed and ratified the said Convention in 1983.
1
With reference to

1
Paragraph 10, Compromis.
2

UNCLOS and the international law principle of state sovereignty,
2
the coastal state, in this case
Ritania has jurisdiction with regard to the establishment and use of artificial islands, installations
and structures within its Exclusive Economic Zone (EEZ)
3
and on its continental shelf.
4

Excelsior Island, the donut-shaped artificial island, is located entirely within Ritanias
uncontested EEZ and is made of oceanic sand and rock dredged from the Malachi Gap.
5

As to the dredging of oceanic sand and rocks, Ritania has sovereign rights over the
continental shelf for the purpose of exploring and exploiting its natural resources which include
minerals and other non-living resources of the seabed and subsoil.
6

Furthermore, as part of Ritanias licensing process an Environmental Impact Assessment
(EIA) was conducted and then reviewed by Ritanias Department of Resource Management and
other government agencies claiming specific interests.
7
In the case of Pulp Mills on the River
Uruguay (Argentina v. Uruguay), the Court observed that the general international law does not
specify the scope and content of an EIA. The Court also held that it is for each State to determine
in its domestic legislation or in the authorization process for the project, the specific content of
the environmental impact assessment required in each case, having regard to the nature and

2
Principle 2 of the 1992 Rio Declaration on Environment and Development states that 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 and developmental 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.
3
Art. 56 1b UNCLOS.
4
Art. 80, UNCLOS.
5
Paragraph 20, Compromis.
6
Art. 77 (1) and (4), UNCLOS.
7
Paragraph 23, Compromis.

3

magnitude of the proposed development and its likely adverse impact on the environment as well
as to the need to exercise due diligence in conducting such an assessment. The Court also
considers that an EIA must be conducted prior to the implementation of a project.
8
Thus, Ritania,
subject to its domestic legislation and authorization process, has complied with the customary
law requirement of conducting an EIA.

B. Ritanias conduct with respect to the Excelsior Island project complied with
the terms of the Malachi Gap Treaty.

Excelsior Island is located outside the Malachi Gap, entirely within Ritanias uncontested
EEZ.
9
While EIGP requires dredging within the Malachi Gap area, the Malachi Gap Treaty has
expressly allowed Ritania exploration, exploitation and protection of the natural resources of the
seabed and subsoil
10
and development of subsea resources such as the Erebus gas field.
11
Having
the EIA approved, EIGP was granted a permit to construct Excelsior Island.
12
Such permit to
dredge the Malachi Gap was also granted in full compliance with the respective Ritanian after
consultation with all competent government authorities.
13



8
Pulp Mills on the River Uruguay (Argentina v. Uruguay),Judgment, I.C.J. Reports 2010, p. 83, para. 205.
9
Paragraph 20, Compromis.
10
Art 12(b), Malachi Gap Treaty.
11
Paragraph 16, Compromis
12
Paragraph 27, Compromis.
13
Item 6, Compromis Clarifications.
4

II. Ritania has no obligation to compensate Amalea for any loss or damage allegedly caused by
the 2009 landslide.

A. Compensation in international law is governed by The Articles on the
Responsibility of States for International Wrongful Acts (ARSIWA).

Compensation in international law is governed by The Articles on the Responsibility of
States for International Wrongful Acts (ARSIWA) which was adopted by the International Law
Commission in 2001. Under ARSIWA, state responsibility to compensate arises only from
internationally wrongful acts.
14
An act or omission is internationally wrongful when it is
attributable to the State under international law; and constitutes a breach of an international
obligation of the State.
15

Such act or omission is internationally wrongful regardless of its characterization in the
internal law of the state concerned.
16
Moreover, an internationally wrongful act is attributable to
the state when it is committed by a state organ,
17
whether it exercises legislative, executive,
judicial or any other functions, whatever position it holds in the organization of the State, and
whatever its character as an organ of the central Government or of a territorial unit of the State.
18

It may also be attributable to the state when it is committed by a person or entity, not a State

14
Art. 1, ARSIWA. Responsibility of a State for its internationally wrongful act. Every internationally wrongful act
of a State entails the international responsibility of that State.
15
Art. 2, ARSIWA.
16
Art. 3, ARSIWA.
17
Organ is defined in Article 4(2) of the ARSIWA as any person or entity which has that status in accordance
with the internal law of the State.
18
Art. 4 (1), ARSIWA.
5

organ, but which is empowered by the law of that State to exercise elements of the governmental
authority, provided that such person or entity is acting in that capacity in the particular
instance.
19
Other attributions include: (1) special cases where an organ of one State is placed at
the disposal of another State and empowered to exercise the governmental authority of that
State;
20
(2) conducts of organs or entities empowered to exercise governmental authority even if
it was carried out outside the authority of the organ or person concerned or contrary to
instructions; (3) conducts carried out on the instructions of a State organ or under its direction or
control;
21
(4) conducts involving elements of governmental authority, carried out in the absence
of the official authorities;
22
(5) special case of responsibility in defined circumstances for the
conduct of insurrectional movements;
23
and (6) conducts not attributable to the State under one
of the earlier articles which is nonetheless adopted by the State, expressly or by conduct, as its
own.
24
There is a breach of an international obligation when conduct attributed to a State as a
subject of international law amounts to a failure by that State to comply with an international
obligation.
25


19
Art. 5, ARSIWA.
20
Art. 6, ARSIWA.
21
Art. 8, ARSIWA.
22
Art. 9, ARSIWA.
23
Art. 10, ARSIWA.
24
Art. 11, ARSIWA.
25
Art. 12, ARSIWA. Existence of a breach of an international obligation. There is a breach of an international
obligation by a State when an act of that State is not in conformity with what is required of it by that obligation,
regardless of its origin or character.
6

The dredging done with respect to the Excelsior Island Project was not a violation of
international law or the Malachi Gap Treaty. Thus, there was no internationally wrongful act of
Ritania that is attributable to it.
26


B. The International Court of Justice (ICJ) found that circumstances were not
such as to require the exercise of its power under Article 41 of the ICJ
Statute, thus consequently denying Amaleas request to order Ritania to halt
the EIGP project.

The International Court of Justice (ICJ) being the principal judicial organ of the United
Nations (UN) generally has the power to settle legal disputes submitted to it by States in
accordance with international law.
27
It is also empowered to indicate provisional measures to
preserve the rights of parties relating to their respective claims before deciding the merits of the
case.
28
However, there are certain criteria before provisional measures are to be granted. These
criteria are discussed in the case concerning Pulp Mills on the River of Uruguay (Argentina v.
Uruguay). In this case, Argentina filed an Application instituting proceedings against Uruguay
concerning alleged violations by Uruguay of obligations incumbent upon it under the 1975
Statute of the River Uruguay, a treaty signed by the two States. Argentina charged Uruguay for
breach of the 1975 Statute when it unilaterally authorized the construction of two pulp mills on

26
Art. 2, ARSIWA
27
Art 36, Statute of the Court
28
Article 41 on the Statute of the ICJ states that (1) The Court shall have the power to indicate, if it considers that
circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of
either party; and (2) Pending the final decision, notice of the measures suggested shall forthwith be given to the
parties and to the Security Council.
7

the River Uruguay without complying with the obligatory prior notification and consultation
procedure. Argentina maintained that these mills jeopardized conservation of the environment of
the river and areas affected by it. This was accompanied by a request for the indication of
provisional measures requiring Uruguay, to suspend the authorizations for the construction of the
mills and to halt building work on them pending a final decision by the Court, and to refrain
from any other action which might aggravate or extend the dispute or render its settlement more
difficult. In its order dated July 13, 2006, the Court found, by 14 votes to one, that the
circumstances, as they presented themselves to the Court, were not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional measures.
29
On
November 29, 2006, Uruguay submitted its own request to the Court for the indication of
provisional measures on the grounds that, since November 20, 2006, organized groups of
Argentine citizens had blockaded a vital international bridge over the Uruguay River causing it
enormous economic damage, and that Argentina had taken no steps to put an end to the
blockade. It further asked the Court order Argentina to take all reasonable and appropriate
steps to prevent or end the interruption of transit between Uruguay and Argentina, including the
blockading of bridges and roads between the two States; to abstain from any measure that might
aggravate, extend or make more difficult the settlement of this dispute; and finally to abstain
from any other measure that might prejudice the rights of Uruguay in dispute before the Court.
30

In its decision, the Court stressed that its power to indicate provisional measures can be exercised

29
Pulp Mills on the River Uruguay (Argentina v. Uruguay),Provisional Measures, Order of 13 July 2006, I.C.J.
Reports 2006, p. 113
30
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J.
Reports 2007, p. 3
8

only if there is an urgent necessity to prevent irreparable prejudice to the disputed rights.
31
The
Court is not convinced that the blockades risk prejudicing irreparably the rights which Uruguay
claims from the 1975 Statute.
32
Moreover, it has not been shown that were there such a risk of
prejudice to the rights claimed by Uruguay in this case, it is imminent.
33
Denying Uruguays
request to indicate provisional measures, the Court reiterates its call to the Parties made in its
Order of13 July 2006 to fulfill their obligations under international law, to implement in good
faith the consultation and co-operation procedures provided for by the 1975 Statute, and to
refrain from any actions which might render more difficult the resolution of the present dispute.
34

Pulp Mills on the River of Uruguay (Argentina v. Uruguay) established the criteria of urgency,
irreparable prejudice, and the right of the parties in dispute. Failure of both states, Argentina and
Uruguay, to comply with the criteria denied them of their respective requests for provisional
measures.
These criteria were likewise not satisfied by Amalea, thus, in its decision cited on
September 10, 2009, ICJ has concluded by eight votes to seven denying Amaleas request to
order Ritania to halt the EIGP project as the circumstances were not such as to require the
exercise of its power under Article 41 of the Statute to indicate provisional measures.
35
This

31
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J.
Reports 2007, p. 11, para. 32
32
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J.
Reports 2007, p. 13, para. 41
33
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J.
Reports 2007, p. 13, para. 42
34
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Provisional Measures, Order of 23 January 2007, I.C.J.
Reports 2007, p. 16, para. 53
35
Paragraph 27, Compromis.
9

decision of the Court is binding between the parties
36
and such judgment is final and without
appeal.
37


Submission 2 Respondent

MILO BELLEZZAS SALVAGE OF THE CARGAST IS UNLAWFUL, AND THE CARGO
AND ARTIFACTS RECOVERED FROM THE WRECK PROPERLY BELONG TO
RITANIA, WHICH HAS THE RIGHT TO PROTECT THEM.

I. The cargo and artifacts of recovered from the wreck properly belong to Ritania, which
has the right to protect them.

A. Ritania owns the said cargo and artifacts under the principle of cultural property
nationalism.

Cultural property includes a limited range of objects that distinguish themselves from
other artifacts by their special cultural significance and/or rarity.
38
The principle of cultural

36
Art. 59, Statute of the International Court of Justice. The decision of the Court has no binding force except
between the parties and in respect of that particular case.
37
Art. 60. Statute of the International Court of Justice. The judgment is final and without appeal. In the event of
dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.
38
John Henry Merryman, Cultural Property Internationalism, 12 INT'L J. CULTURAL PROP. 11, 32 (2005), page.
11. Article 1 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property of November 14, 1970 defines cultural property as Property which, on
religious or secular grounds, is specifically designated by each State as being of importance for archaeology,
prehistory, history, literature, art or science and which belong to the following categories: (b.) property relating to
history, including the history of science and technology and military and social history, to the life of national
leaders, thinkers, scientists and artists and to events of national importance; (e) antiquities more than a hundred
years old, such as inscriptions, coins and engraved seals.
10

property nationalism obligates cultural property to belong to the nation in which it originates.
39
It
is the dominant view, espoused by most market nations.
40
The UNESCO Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of
Cultural Property of November 14, 1970 exemplifies the principle of cultural property
nationalism,
41
as well as its offshoot the Intergovernmental Committee for Promoting the Return
of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation.
42

This principle legitimizes the demand for repatriation of cultural property to the nation of
origin.
43


Historians are unanimous in their assumption that the cargo that went down with the
Cargast, and that lay somewhere in the depths of the Strait of Malachi, contained a vast array of
precious stones, gold and other coinage, and bejeweled artifacts during Amalean Captain Baldric
Verdigris siege of the Ritanian capital of Helios on the week of 4 March 1510.
44
Among the

39
21Raechel Anglin, Note, The World Heritage List: Bridging the Cultural Property Nationalism-Internationalism
Divide, 20 YALE J.L. & HUMAN page 242 (2008).
40
Stephanie O. Forbes, Comment, Securing the Future of Our Past: Current Efforts to Protect Cultural Property, 9
TRANSNAT'L L. 235, 242 (1996).
41
John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 842-845
(1986).
42
John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 845
(1986).
43
John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 AM. J. INT'L L. 831, page 832
(1986). See Maria Aurora Fe Candelaria, Note, The Angkor Sites of Cambodia: The Conflicting Values of
Sustainable Tourism and State Sovereignty, 31 Brook. J. Intl L. 253, 267-68 (2005) (Because cultural property is a
part of a national cultural heritage, sovereignty over these properties should remain with the state.)
Ownership over cultural property is never lost and remains with the state of origin for the following reasons: (1)
because cultural property is an expression of a civilization that existed or is currently existing within a state, its
citizens thus have a stronger claim based on identification and national pride; and (2) retention of sovereignty
provides the context of cultural property.
44
Paragraph 33, Compromis.
11

objects stolen was the Sacred Helian Coronet, which was placed on the heads of Ritanian
monarchs during their coronation ceremonies.
45
According to legend, the Coronet reportedly
made of gold and precious stones was a gift from the gods to the first king of Ritania in the
fourth century A.D., and over the centuries it has acquired mythical importance in Ritanian
iconography, a stylized image of which occupies the center of the flag of Ritania to the present
day.
46
All these artifacts clearly constitute cultural property with deep historical and cultural
significance to the Ritanian people, and as an integral part of their cultural identity,
47
these
artifacts seized by Amalea from the Cargast remain under the exclusive ownership of Ritania,
and must be repatriated to Ritania.


II. Amaleas salvage of the Cargast is unlawful.

A. The salvage contract between the State of Amalea and Milo Belleza was invalid
under the 1989 International Convention on Salvage (Salvage Convention).

Amalea is a State Party to the Salvage Convention.
48
This Convention sought to codify
the traditional principles in the law of salvage, including those embodied in the 1910 Brussels

45
Paragraph 33, Compromis.
46
Paragraph 33, Compromis.
47
Professor Stuart Hall defines the cultural identity in terms of one, shared culture, a sort of collective one true
self, hiding inside the many other, more superficial or artificially imposed selves, which people with a shared
history and ancestry hold in common. Cultural identity defines us as one people, and gives a sense of identity and
belonging to a group or culture and valuing cultural diversity. As a result, cultural identity, as evidence of a states
spirit code, can be the substantial criterion to authorize the interested state of origin to claim the res. See
48
Paragraph 52, Compromis.
12

Convention for the Unification of Certain Rules of Law relating to Salvage at Sea, and update
these principles in the light of modern practice and jurisdiction principles as well as, in
particular, to respond to growing international concerns relating to the protection of the marine
environment.
49


The Salvage Convention applies to all salvage operations of a State Party.
50
It also states
that salvors shall conclude contracts for salvage operations with the owner of the property sought
to be salvaged.
51
Amalea is manifestly not the owner of the cultural property, as they remain
owned by Ritania as previously discussed. The salvage of such property is thus violative of the
rules of salvage as codified in the Salvage Convention.

B. Amalea has lost ownership of the Cargast by abandonment.

Moreover, Amalea cannot contend that any contents in its own vessel are consequently its
own. The Cargast is deemed abandoned by virtue of its commercial or merchant character and
its loss having reached 500 years. The attribute commercial means that the use of such vessels
has to be aimed at obtaining profits, so that even government ships, when operated for
commercial purposes, are merchant vessels.
52
Contemporary records reveal that before Verdigris
and his men laid siege to Helios, they were on their way back to Amalea from a very successful

49
William A. ONeill, Foreword, Travaux Preparatoires of the Convention on Salvage 1989.
50
Article 6(1), Salvage Convention.
51
Article 6 and 8, Salvage Convention.
52
The Handbook of International Humanitarian Law, Dieter Fleck
13

trading mission to recently discovered overseas territories.
53
Moreover, the crew of the Cargast
was composed of private individuals employed by Verdigris using funds provided by private
financial backers, who hoped to recover their investment through shares of the foreign treasure
they hoped he would bring back to Amalea.
54
This fact shows that privateering through a letter of
marque was business, in that capital was subscribed by the nobility and the middle class as
bakers, bankers, butchers, cheesemongers, coal merchants, dyers, grocers and haberdashers
invested in commerce-raiding activity.
55
Taken together, these facts indicate the commercial
nature of the purposes for which Verdigris and the crew of the Cargast set sail.

Abandonment is presumed to exist 25 years after sinking and becomes absolute after 50
years, and the only exceptions to these rules are military vessels and aircraft, which are to remain
the property of the sovereign nation forever.
56
The Cargast has remained undiscovered without
any published claims until only after the discovery in 2010.
57
Therefore, since the Cargast was a
commercial vessel and it was lost at sea for more than 500 years, it is deemed abandoned.
Amalea cannot rely on ownership of the vessel to justify its claim over the artifacts.



53
33, Compromis.
54
Paragraph 32, Compromis.
55
Gary Sturgess, Privateering and Letters of Marque, Journal of International Peace Operations, Vol. 5, No. 1, July-
August 2009, page 38.
56
See Peter Hess, UNESCO-Legalized Plunder? http://www.imacdigest.com/unesco.html (visited November 22,
1998)
57
31, Compromis
14

I. THE STATE OF AMALEA WAS NOT ENTITLED TO PURSUE OSCAR DE LUZ.

A. The High Seas Convention governs the exercise of the Right to Hot Pursuit and
not the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

1. Amalea is not a party to the UNCLOS.

Article 306 of the UNCLOS itself specifically provides that this Convention is subject to
ratification by States.
58
This is an example of a convention requiring simple signature,
59
where a
signing State does not undertake positive legal obligations under the treaty pending ratification.
60

This is made more explicit under Article 14 of the Vienna Convention on the Law of Treaties
(VCLT), While both Amalea and Ritania had signed the UNCLOS,
61
only Ritania ratified it as of
the time of the case at hand.
62
Consequently, Amalea cannot yet be considered a state party to the

58
Article 306, UNCLOS. Ratification and formal confirmation. This Convention is subject to ratification by States
and the other entities referred to in article 305, paragraph l(b), (c), (d) and (e), and to formal confirmation, in
accordance with Annex IX, by the entities referred to in article 305, paragraph l(f). The instruments of ratification
and of formal confirmation shall be deposited with the Secretary-General of the United Nations.
59
Signature is referred to as simple when subject to ratification, acceptance or approval. On the other hand,
signature is referred to as definitive when a State consents to be legally bound by signature alone. (The Vienna
Conventions on the Law of Treaties: A Commentary by Olivier Corten and Pierre Klein, 2011, p. 218.)
60
UN Treaty Handbook 2012, p. 5.
However, signature indicates the States intention to take steps to express its consent to be bound by the treaty at a
later date. Signature also creates an obligation, in the period between signature and ratification, acceptance or
approval, to refrain in good faith from acts that would defeat the object and purpose of the treaty (see article 18 of
the Vienna Convention 1969).
61
Paragraph 10 and 11, Compromis. In April 1983, Ritania signed and ratified the UNCLOS. Amalea signed
UNCLOS in June 1983.
62
Paragraph 11, Compromis.
15

UNCLOS.
63

2. Amalea and Ritania are both parties to the 1958 Geneva Conventions on
the Law of the Sea (1958 Geneva Conventions).
64


Article 311 of the UNCLOS provides that this Convention shall prevail, as between States
Parties, over the 1958 Geneva Conventions.
65
This was added to clearly signify the intention of
the Third Conference on the Law of Sea to supersede the 1958 Geneva Conventions with the
UNCLOS.
66

In such a situation Article 30 of the VCLT, regarding the application of successive treaties
relating to the same subject matter, is applicable. In paragraph 4(b) thereof, it provides that as
between a State party to both treaties and a State party to only one of the treaties, the treaty to
which both States are parties governs their mutual rights and obligations.
67
As discussed
previously, while both Amalea and Ritania are parties to the 1958 Geneva Conventions, only
Ritania is a party to the 1982 UNCLOS.
68
Hence, the 1958 Geneva Conventions, as the treaty to
which both states are parties, govern the rights and obligations between Amalea and Ritania

63
Party is defined in Article 2(g) of the VCLT as a State which has consented to be bound by the treaty and for
which the treaty is in force. Article 2(b) of the same convention defines four international acts whereby a State
establishes on the international plane its consent to be bound by a treaty, namely: ratification, acceptance, approval
and accession.
64
The 1958 Geneva Conventions on the Law of the Sea are comprised of four Conventions: The Convention on the
Territorial Sea and the Contiguous Zone; The Convention on the High Seas; The Convention on Fishing and
Conservation of the Living Resources of the High Seas; and The Convention on the Continental Shelf.
65
UNCLOS, Article 311.
66
Myron Nordquist, United Nations Convention on the Law of the Sea, 1982: A Commentary, p. 235. (1989)
67
Article 30(4)(b), VCLT. Amalea and Ritania have both signed and ratified the VCLT, as per Paragraph 52,
Compromis.
68
Paragraph 10 and 11, Compromis.
16

insofar as the Law of the Sea is concerned.
17

II. THERE WAS NO VALID EXERCISE OF HOT PURSUIT UNDER THE 1958 GENEVA
CONVENTIONS.
A. The provisions of the 1958 Geneva Conventions govern the exercise of hot
pursuit.
When a foreign vessel within the territory of a coastal State commits any violation of the
laws and regulations of that coastal State, such vessel may be immediately pursued into the open
seas beyond territorial limits and subsequently taken.
69
This concept of hot pursuit, as defined by
Article 23 of the 1958 Geneva Convention on the High Seas, remained unchanged with the entry
of the UNCLOS in Article 111 thereof, and even has the force of custom, enforceable against
states which have neither signed nor ratified any of the Conventions on the Law of the Sea.
70


For hot pursuit to be validly exercised such pursuit must be commenced when the foreign
ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of
the pursuing State.
71
Under the regime of the 1958 Geneva Conventions, the ILC considered that
the breadth of the territorial sea did not extend beyond 12 miles from the baseline,
72
while the
contiguous zone may not extend beyond twelve miles from the baseline from which the breadth
of the territorial sea is measured.
73


69
Allen, Doctrine of Hot Pursuit book (page 1), citing The King v. the Ship North, 37 S. C. R. 385 (1905-06).
70
The Right of Hot Pursuit in International Law, Nicholas M. Poulantzas, p. xxviii.
71
Article 23(1), High Seas Convention.
72
ILC, Articles concerning the Law of the Sea with commentaries, p. 265, 1956.
73
Article 24, Convention on the Contiguous Zone.
18

In the case at hand, Captain Walter Haddock of the Icarus, an Amalean Navy Fast
Response Cutter, began the pursuit when the Daedalus was within 23 nautical miles of Amaleas
coastline, well beyond the territorial sea and the contiguous zone of Amalea under the 1958
Geneva Conventions. Hence, the commencement of the pursuit was unlawful, and there can be
no valid arrest following hot pursuit if the exercise of such pursuit is not in accordance with the
elements as codified in the 1958 High Seas Convention
74
and affirmed in the 1982 UNCLOS.
75


Submission 4 Respondent

AMALEA WAS WITHOUT JURISDICTION TO TRY LUZ IN CONNECTION WITH THE
ROSEHILL COLLISION, AND MUST RETURN HIM TO RITANIA IMMEDIATELY.

I. The High Seas Convention grants flag-state jurisdiction over the incident in favor of
Ritania.

Amalea and Ritania are State Parties to the 1958 High Seas Convention.
76
Article 11 of
the High Seas Convention provides that in the event of a collision on the high seas, no penal or
disciplinary proceedings may be instituted against such persons except before the judicial or
administrative authorities either of the flag State or of the State of which such person is a
national.
77
It goes on to say that no arrest or detention of the ship, even as a measure of

74
Article 111, UNCLOS; Article 23, 1958 Convention on the High Seas
75
Saiga case, para. 150.
76
Paragraph 8, Compromis.
77
Convention on the High Seas, Article 11(1).
19

investigation, shall be ordered by any authorities other than those of the flag State.
78
These
provisions would later on be reaffirmed in article 97 of the UNCLOS.
79


This rule had been previously codified in the International Convention for the Unification
of Certain Rules Relating to Penal Jurisdiction in Matters of Collisions or Other Incidents of
Navigation, signed at Brussels on 10 May 1952,
80
which rule originated as a response against a
judgment rendered by the Permanent Court of International Justice on 7 September 1927 in the
Lotus case
81
which allowed Turkish courts to try the master of a French vessel regarding a
collision on the high seas.
82
It is the flag state that will enforce the rules and regulations not only
of its own municipal law but of international law as well.
83


Applying the above rule grants exclusive jurisdiction over Luz regarding the incident to
Ritania, which flag the Daedalus was flying and of which State Luz is a citizen.
84


II. Amaleas arrest of Oscar de Luz was unlawful, further precluding any jurisdiction to try
him in Amalean courts regarding the Rosehill collision.


78
Convention on the High Seas, Article 11(3).
79
UNCLOS, Article 97.
80
Article 1 and 2, International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in
Matters of Collisions or Other Incidents of Navigation
81
Lotus.
82
Articles Concerning the Law of the Sea with commentaries, p. 281, 1956.
83
Malcolm Shaw, International Law, p. 611, 2008.
84
Paragraph 42, Compromis.
20

If a person who is the subject of a controversy has been brought to the domestic court of
another state through means that constitute a breach of international law, the domestic court has
no jurisdiction to try the subject person.
85
To hold otherwise would defeat the purpose and
nullify the efficacy of international law.
86


When Israel violated the territorial integrity and sovereignty of Argentina by forcibly
abducting Adolf Eichmann, a German former Nazi, from Argentinian territory for crimes against
the Jewish people, Israels act constituted an international tort, a breach of international law,
87

entitling Argentina to demand reparation, i.e. the repatriation of Adolf Eichmann
88
prior to
withdrawing the demand and accepting a public apology from Israel instead, as per suggestion
by the UN Security Council.
89


There can be no valid arrest following hot pursuit if the exercise of such pursuit is not in
accordance with the elements as codified in the UNCLOS, which elements were first contained
in the High Seas Convention.
90
As earlier discussed, Amaleas exercise of the right to hot pursuit

85
Edwin Dickinson, Jurisdiction following seizure or arrest in violation of international law, p. 244.
86
Edwin Dickinson, Jurisdiction following seizure or arrest in violation of international law, p. 231.
87
Hans W. Baade, The Eichmann Trial: Some Legal Aspects, Duke Law Journal, Volume 1961, p. 401.
88
See SCHWARINBERGER, INTERNATIONAL LAW 562-64 (3d ed. 1957), Chorzow Factory (Jurisdiction),
P.C.I.J., ser. A, No. 9 at 21 (Germany v. Poland, 1927); Corfu Channel Case, Great Britain v. Albania, [1949] I.C.J.
Rm'. 4, 23.
89
See U.N. Doc. No. S/PV. 868, para. 30131, at 7-8 (USSR); id., para. 33-36, at 8 (U.K.); cf. 7 UNITED NATIONS
REVIEW No. 2, 14 (2960).
90
Saiga Case, para. 150.
21

was unlawful, having been based on mere suspicion. This is tantamount to an international tort
subject to reparation.
91


III. Ritania has a right to demand the return of Oscar de Luz through restitution.

Article 35 of the International Law Commissions Articles on the Responsibility of States
for Internationally Wrongful Acts (ARSIWA) provides that a State responsible for an
internationally wrongful act is under an obligation to make restitution, that is, to re-establish the
situation which existed before the wrongful act was committed, provided and to the extent that
restitution: (a) is not materially impossible; and (b) does not involve a burden out of all
proportion to the benefit deriving from restitution instead of compensation.
92


Restitution may take the form of material restitution such as release and return of persons
wrongly detained,
93
as well as the form of judicial restitution such as the rescinding or
reconsideration of a judicial measure wrongfully adopted in respect of the person of a
foreigner.
94


IV. Ritania has exclusive jurisdiction over Luz under the active personality principle.


91
Hans W. Baade, The Eichmann Trial: Some Legal Aspects, Duke Law Journal, Volume 1961, p. 401.
92
Article 35, ARSIWA.
93
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, p. 96,
2001.
94
ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, with commentaries, p. 97,
2001.
22

According to the active personality principle, a state has a fundamental right to apply its
laws to prosecute illegal conduct committed by its citizens overseas
95
. Known also as the
nationality principle, this positive concept of the personality taking the nationality of the criminal
as a basis for its application has been clearly recognized by international law.
96
Art. 91 of
UNCLOS provides: "Ships have the nationality of the State whose flag they are entitled to fly."
Moreover, under Article 94 2(b), the flag State does not only assume jurisdiction over the ship,
but also over its crew
97
. Thus the nationality principle establishes that states have the right to
regulate the conduct of their nationals
98
even outside its territory.
Oscar de Luz is a Ritanian citizen who stole and took control of a Ritanian-flagged yacht
and was then on a collision course with Rosehill.
99
The crimes committed by its national on
board the Ritanian-flagged vessel Daedalus are subject matter covered under the jurisdiction of
Ritania.

V. Amalea cannot claim universal jurisdiction to try and convict Luz.

Under this principle, each and every state has jurisdiction to try offenses regarded as
particularly offensive to the international community as a whole, such as piracy, genocide, war

95
ILIAS BANTEKAS & SUSAN NASH, INTERNATIONAL CRMINAL LAW 144 (Cavendish Publishing 2003)
(2001).
96
Abdulmohsen Alothman , State Jurisdiction in the Area of International Criminal Law, p.27
97
A Handbook on the New Law of the Sea, Dupuy & Vignes vol. 2 (1991), P. 146
98
One example of this principle at work is section 4 of the Indian Penal Code, which says, "The provisions of this
Code apply also to any offence committed by (1) any citizen of India in any place without and beyond India; (2) any
person on any ship or aircraft registered in India wherever it may be." Another example is the U.S.'s application of
its civil rights laws to Americans employed abroad by American employers
99
Par. 42, Compromis 2014
23

crimes and crimes against humanity.
100
States are competent to prosecute and punish alleged
offenders irrespective of the place of commission of the crime and regardless of any link of
active or passive nationality or other grounds of jurisdiction recognized by international law.
101


Luzs alleged murder, property crimes, and criminal negligence, are not offenses
regarded as capable of trying under universal jurisdiction, and Amalea cannot claim jurisdiction
under this principle.















100
Malcolm Shaw, International Law, 6
th
, 2008, p. 668.
101
Malcolm Shaw, International Law, 6
th
, 2008, p. 668.
24

CONCLUSION AND PRAYER FOR RELIEF

The Republic of Ritania respectfully asks this Court to adjudge and declare that:
1. Ritanias conduct with respect to the Excelsior Island project complied in all
respects with its obligations under international law and the terms of the Malachi
Gap Treaty, and Ritania has no obligation to compensate Amalea for any loss or
damage allegedly caused by the 2009 landslide.
2. Milo Bellezzas salvage of the Cargast is unlawful, and the cargo and artifacts
recovered from the wreck properly belong to Ritania.
3. The Amalean Navys pursuit of Oscar de Luz into Ritanias EEZ, and his
subsequent arrest, were illegal.
4. Amalea was without jurisdiction to try Luz in connection with the Rosehill
collision, and must return him to Ritania immediately.










25