735A

IN THE INTERNATIONAL COURT

OF JUSTICE
AT THE PEACE PALACE,
THE HAGUE, NETHERLANDS
THE CASE CONCERNING CERTAIN ACTIVITIES
WITHIN THE MALACHI GAP
STATE OF AMALEA
(APPLICANT)
v
REPUBLIC OF RITANIA
(RESPONDENT)
MEMORIAL FOR THE APPLICANT
ii
TABLE OF CONTENTS
iii
INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in matters of
Collision.....................................................................................................................................23
Convention on the Continental Shelf, April 29, 9!", ! U.S.#. $%& $99 U.'.#.S. 3.............(
Convention on the )igh Seas, April 29, 9!", 3 U.S.#. 232& $!* U.'.#.S. .........................(
Convention on the #erritorial Sea and the Contiguous +one, April 29, 9!", ! U.S.#. (*(& !(
U.'.#.S. 2*!..............................................................................................................................(
#he Convention on ,ishing and Conservation of the -iving Resources of the )igh Seas...........(
Articles on the Responsi.ilit/ of States for 0nternational 1rongful, April 29, 9!", % U.S.#.
3"& !!9 U.'.#.S. 2"!...........................................................................................3, $, !, (, %, 2!
Convention for the Suppression of Unla2ful Acts of 3iolence against the Safet/ of 4aritime
'avigation..................................................................................................................................23
Convention on 5nvironmental 0mpact Assessment in a #rans.oundar/ Conte6t Appendi6 00
7998.......................................................................................................................................2, (
9ar/ Sturgess, Privateering and Letters of Marque, ! n. Journal of 0nternational Peace
:perations 3", Jul/;August 2**9..............................................................................................3
John 9. 4cCarth/, The Passive Personality Principle and Its Use in Combating International
Terrorism, ,ordham 0nternational -a2 Journal...................................................................2, 22
U'5SC: Convention on the Protection of Under2ater Cultural )eritage......................%, ", 9, *
United 'ations Convention on the -a2 of the Sea, <ecem.er *, 9"2, "33 U.'.#.S. 3& 2
0-4 2(.....................................................................................................$, !, (, ", 2$, 2!
3ienna Convention on the -a2 of #reaties, 4a/ 23, 9(9, !! U.'.#.S. 33& " 0-4 (%9& (3
AJ0- "%!..............................................................................................................................!, (
UN RESOLUTION AND OTHER DOCUMENTS
U' -590S-A#035 S5R05S, 4aterials :n #he Responsi.ilit/ :f States ,or 0nternationall/
1rongful Acts..............................................................................................................................3
INTERNATIONAL CASES AND ARBITRAL DECISIONS
0nternational #ri.unal for the -a2 of the Sea, Saint Vincent and the renadines v! uinea,
iv
Judgment, Jul/ 999...............................................................................................................%
S.S. -otus 7,r. v. #ur=.8, 92% P.C.0.J. 7ser. A8 'o. * 7Sept. %8..............................................2*, 23
MUNICIPAL CASES AND LAWS
"!M!S! Titanic# $3! ,.3d at !32 n.3................................................................................................
Strassheim v. $ailey 22 US 2"* 798.......................................................................................2*
US v. Columba%Colella(*$ ,.2d 3!(.............................................................................................2*
US v. Pere&%'errera (* ,.2d 2"9.................................................................................................2*
TREATISES AND OTHER BOOKS
Cartner> ,is=e -eiter, The International La( of the Shipmaster.................................................2$
<ieter ,lec=, #he )and.oo= of 0nternational )umanitarian -a2 72*38.....................................2
9avouneli, )unctional *urisdiction in the La( of the Sea............................................................2
4ar=us Rau, The U+,S- Convention on Under(ater Culture 'eritage and International La(
of the Sea, $*!........................................................................................................................9, *
4/ron 'ord?uist, Commentar/, United +ations Convention on the La( of the Sea....................(
'icholas 4. Poulant@as, The "ight of 'ot Pursuit in International La(......................................%
:livier Corten> Pierre Alein, Commentar/, The Vienna Conventions on the La( of Treaties....!
S)A1, 0'#5R'A#0:'A- -A1.........................................................................9, 2*, 2, 23, 2!
JOURNAL ARTICLES
)arvard Research <raft Convention on Jurisdiction 2ith Respect to Crime, 29 AJ0-, 93!.......2*
Justin S. <uClos, . Conceptual /rec01 Salvaging the La( of )inds, 3" n. Journal of 4aritime
-a2 and Commerce 2(, Januar/ 2**%.......................................................................................
4ar= A. 1ilder, .pplication of Salvage La( and the La( of )inds to Sun0en Ship(rec0
$iscoveries, (% n. <efense Counsel Journal 93......................................................................
1il.erforce, $PP v. $ootB9%3C AC "*%, "%& !% 0-R................................................................2*
BOOKS
J0 9U:D0'9, #)5 -59A-0#E :, #)5 F04P5CCAG-5 0'C0<5'#H C)0'A S5CUR0#E, !
n. 2 Spring 2**9 9, 1orld Securit/ 0nstitute 72**9.................................................................$
10--0A4 A. :I'50--, ,ore2ord, #RA3AUD PR5PARA#:0R5S :, #)5 C:'35'#0:'
:' SA-3A95 79"98.................................................................................................................9
v
MISCELLANEOUS
Allen, <octrine of )ot Pursuit.......................................................................................................(
9erd 1inter, To(ards Sustainable )isheries La(1 . Comparative .nalysis................................$
Peter )ess, U+,SC-%Legali&ed Plunder2 7'ov. 22, 99"8,
httpJKK222.imacdigest.comKunesco.html...................................................................................3
U' #reat/ )and.oo=.....................................................................................................................!
vi
STATEMENT OF JURISDICTION
Pursuant to the Joint 'otification and Compromis concluded on % Septem.er 2*3 at #he
)ague, #he 'etherlands, .et2een the State of Amalea and the Repu.lic of Ritania 7collectivel/
Fthe PartiesH8, and in accordance 2ith Article $*78 of the Statute of the 0nternational Court of
Justice, the Parties here./ su.mit to this Court its claims concerning Certain Activities 2ithin the
4alachi 9ap.
#his Court is re?uested to decide the Case on the .asis of the rules and principles of
international la2, including an/ applica.le treaties. 0n accordance 2ith Article 3(78 of the
CourtIs Statute, the Parties shall accept an/ Judgment of the Court as final and .inding upon
them and shall e6ecute it in its entiret/ and in good faith.
vii
QUESTIONS PRESENTED
#he State of Amalea respectfull/ as=s this CourtJ
. 1hether RitaniaIs acts and omissions 2ith respect to the development of
56celsior 0sland violated international la2, and if so, 2hether Amalea is entitled
to see= compensation from Ritania for economic losses caused ./ the landslide.
2. 1hether Amalea has e6clusive o2nership of the 2rec= of the Cargast and all
artifacts recovered from it, and 2hether RitaniaIs deplo/ment of patrol vessels to
the site of the Cargast violated international la2.
3. 1hether the Amalean 'av/Is pursuit of :scar de -u@ into RitaniaIs 55+, and his
su.se?uent arrest, 2ere in compliance 2ith international la2.
$. 1hether Amalea had Lurisdiction to tr/ and convict -u@ for criminal actions
related to the "osehill incident, and if so, 2hether it has an o.ligation to return
him to Ritania.
viii
STATEMENT OF FACTS
Amalea, a developing and ne2l/ industriali@ed island State, is separated from the Repu.lic
of Ritania ./ the Strait of 4alachi. #he strait contains a.undant fish and shellfish stoc=s.
Amalean fishing vessels have historicall/ plied almost ever/ part of the strait, regularl/ coming
2ithin less than $* nautical miles of the Ritanian coast.
0n 9!", .oth countries signed the four 9eneva Conventions on the -a2 of the Sea.
Amalea and Ritania ratified all four Conventions. Amalea signed U'C-:S in June 9"3, .ut
has never ratified it.
Amalea developed and implemented sustaina.le fishing practices. 0n 9"(, its legislature
enacted the Coastal ,isheries Protection Act, intending to regulate an/ activities that posed ris=s
to fish stoc=s. )o2ever, Ritania o.Lected to an/ potential interpretation of the Act as appl/ing to
an/ part of the Strait of 4alachi.
Amalea and Ritania .ecame State Parties to the 4alachi 9ap treat/ dated 3* 4arch 992
2hich o.Lective 2as to .alance, and insofar as possi.le to promote, the interests of the States
Parties in respect of e6ploration, e6ploitation, and protection of this maritime area of great
importance to them .oth.
AmaleaIs fishing industr/ directl/ emplo/ed over 2!*,*** people and supplied the
domestic mar=et, suppl/ing $*M of the protein content of Amalean diet and responsi.le for
e6ports generating more than !M of the countr/Is N$! Gillion 9<P. #he Amalean people pri@ed
the flesh of the <orian 2rasse for its historical and traditional value. #he Amalean 4inistr/ of
#rade has reported that domestic and foreign sales of the fish generated some N(* 4illion
i6
annuall/ ./ 2*** and e6porters have regularl/ proLected higher returns over the ne6t decades.
0n late 2**(, Ritanian .illionaire 5smeralda Aali announced her intention to finance the
construction of 56celsior 0sland on the Sirius Plateau located Lust outside the 4alachi gap. #he
t2o .illion cu.ic meters of sand and roc= for the construction 2ould .e dredged entirel/ from
areas located 2ithin the 4alachi 9ap. AmaleaIs ,oreign 4inister summoned the Ritanian
Am.assador for a meeting, 2here he made clear that such a large;scale proLect cannot .e
underta=en 2ithout the consent of Amalea and Ritania, in accordance 2ith the letter and spirit of
the #reat/. Amalea maintained that Ritania could not permit the dredging 2ithout at least a full
5nvironmental 0mpact Assessment 750A8 specificall/ covering all of its potential impacts.
Amalea e6pressed particular concern regarding the fate of the <orian 2rasse, given the
pro6imit/ of its onl/ =no2n .reeding ground to the proposed dredging in the Sirius Plateau.
0n earl/ 2**", 56celsior 0sland and 9as ProLect -imited 7509P8 su.mitted an 50A for the
ProLect, 2hich does not address the potential impacts of the dredging program on the 2aters of
the 4alachi 9ap or on the fish species. #he Amalean 5nvironmental Protection Agenc/
for2arded a report prepared ./ the 0nternational -eague for Sustaina.le A?uaculture 70-SA8 to
the Ritanian Am.assador, 2hich concluded that an/ maLor dredging activit/ in the 4alachi 9ap
could potentiall/ prove catastrophic for native species and ecos/stems such as a great possi.ilit/
of a landslide.
:n <ecem.er *, 2**9, as direct result of the dredging, an under2ater landslide occurred,
caused ./ over;steepening of the slope in a geologicall/ 2ea= part of the Sirius Plateau. Results
of the program of an emergenc/ monitoring program developed and implemented ./ 0-SA
revealed that the landslide had an immediate and significant negative impact on the =no2n
<orian 2rasse population. According to the 4inistr/ of ,isheries, Amalean fishing companies
6
had fallen ./ the end of 2** and 2*. G/ ,e.ruar/ 2*2, 0-SA declared the <orian 2rasse to
.e an endangered species.
0n Januar/ 2**, a Ritanian vessel conducting sonar mapping operations in the 4alachi
9ap to the 2est of the Amalean #rench discovered the 2rec= of the Amalean schooner Cargast
appro6imatel/ "* nautical miles from the nearest point on the Amalean coast. CargastIs captain
2as Galdric 3erdigris, an Amalean e6plorer and cartographer, 2ho carried a letter of mar?ue
from the Aing of Amalea granting the ship to him for use to .ring glor/ to the Aingdom of
Amalea.
Amalean Prime 4inister Geesle/ made an announcement claiming the Cargast and all of
the cargo that might .e on .oard as propert/ of Amalea, to .e held in trust for all human=ind.
4ilo Gelle@a, 2ith 2hom Amalea has negotiated a salvage contract, reported that the hull
structure of the Cargast 2as at ris= of catastrophic collapse.
:n 3 ,e.ruar/ 2*, the "osehill, an Amalean;registered cruise ship, departed from
Amalea and headed to2ards Ritania. 0ts passengers had o.tained permission for the vessel to
navigate close to 56celsior 0sland. As the "osehill approached 56celsior 0sland, the $aedalus, a
stolen Ritanian;flagged /acht under the control of :scar de -u@, 2as speeding to2ards the
0sland. #he captain of the "osehill, sa2 that his ship 2as on a collision course 2ith the fast;
approaching $aedalus, and 2ith the captainIs and the cre2Is heroic efforts, the/ tried to
maneuver the "osehill a2a/ in order to avoid an imminent collision, the/ 2ere forced to veer
to2ard the 0sland and the ship struc= the island 2ith significant force and immediatel/ the
"osehillIs captain radioed the Amalean authorities a.out the incident. #he impact tore large
holes in the hull of the "osehill and caused fires that spread through parts of the ship and it .egan
to sin=. Gefore nightfall, 2% passengers and cre2 of the "osehill had died, "9 of 2hich 2ere
6i
Amalean nationals, and !* others 2ere inLured.
1ithin minutes of the "osehillIs distress call, the Amalean Coastal Protection Service
7ACPS8 issued an alert descri.ing the "osehill collision as apparentl/ caused ./ a /acht that had
hurriedl/ left the scene, noting that the stolen /acht had .een seen speeding a2a/ .earing 2est
north2est and the persons on .oard are suspected of human traffic=ing. As the $aedalus dre2
2ithin AmaleaIs coastline, it 2as pic=ed up ./ the Icarus, an Amalean 'av/ ,ast Response
Cutter 2hich 2as set out to intercept the $aedalus. 1hen the Icarus 2as 2ithin visual range,
Captain )addoc= ordered the $aedalus to stop. 0nstead, -u@ turned the $aedalus and sped
to2ards Ritania. )addoc= pursued the $aedalus. 0n an attempt to get the Icarus to veer a2a/,
-u@ suddenl/ steered the $aedalus straight to2ards the Icarus. Captain )addoc= =ept his vessel
on course and the ships collided. #he Icarus suffered some damage, .ut the $aedalus .egan to
sin= rapidl/. Captain )addoc=Is cre2 captured -u@, and declared him under arrest and .rought
him on .oard the Icarus.
AmaleaIs Attorne/ 9eneral concluded that under the Amalea Penal code, 2hich
specificall/ includes offenses committed in the 4alachi 9ap, Amalea had Lurisdiction to tr/ -u@
for violations of Amalean criminal la2s. )e 2as charged 2ith 2% counts of murder as 2ell as
other various crimes. Ritania immediatel/ filed a formal protest demanding for the return of
-u@. Amalea declined to repatriate -u@, noting that Ritanian criminal la2 did not e6pressl/
provide for prosecution of offenses committed outside the countr/Is territorial 2aters. Amalea
put him on trial and -u@ 2as ultimatel/ convicted of nearl/ all of the charges against him, and
this 2as affirmed ./ the Court of Criminal Appeals in June 2*2, and ./ AmaleaIs Supreme
Court in Januar/ 2*3.
0n ,e.ruar/ 2*3, AmaleaIs 4inistr/ of ,isheries pu.lished a report concluding that the
6ii
proLected commercial e6ploitation of the <orian 2rasse 2ould have amounted to no less than
US< 2!* million annuall/ over the ne6t five /ears. Geing una.le to fish the <orian 2rasse for
the foreseea.le future, Amalea demanded reparations from Ritania for the loss of this revenue.
#he parties decided to refer the matter involving the loss of the <orian 2rasse, along 2ith
the unresolved disputes involving the Cargast and the "osehill, to the 0nternational Court of
Justice. Amalea has agreed to place all o.Lects removed from the Cargast, and an/ others that
might .e .rought to the surface during the pendenc/ of this case ./ 4ilo Gelle@@a, in escro2
held ./ the 4inistr/ of Culture of the 9overnment of Canada, 2hich ta=es no position on an/ of
the issues in dispute.
6iii
SUMMARY OF PLEADINGS
0. Ritania violated the terms of the 4alachi 9ap #reat/ in allo2ing the 56celsior
0sland and 9as Po2er, -imited 7509P8 to conduct dredging 2ithin the 4alachi 9ap.
Article 2 of the said treat/ states that neither part/ shall e6ercise its rights under the
agreement to the preLudice of the interests of the other. Since the dredging adversel/
affected the fate of the <orian 1rasse population to 2hich Amalea 2as economicall/
dependent, such an activit/ constituted a .reach of the 4alachi 9ap #reat/. Ritania also
failed to perform its o.ligation under customar/ international environmental la2 to
conduct a comprehensive 5nvironmental 0mpact Assessment 750A8 2hich 2ould include
the impact of the dredging to2ards the fish population 2ithin the 4alachi 9ap. )aving
.reached an international o.ligation, Ritania committed an internationall/ 2rongful act
and therefore must ta=e responsi.ilit/ ./ compensation as provided for in the Articles on
the Responsi.ilit/ of States for 0nternationall/ 1rongful Acts.
00. Amalea has a .etter right to the Cargast and all its contents under the la2 of finds
and the la2 on salvage, to the e6tent allo2ed ./ the U'5SC: Convention on the
Protection of Under2ater Cultural )eritage. Under the same convention, the su.se?uent
salvage ./ 4ilo Gelle@a of the Cargast 2as also la2ful and allo2a.le ./ virtue of the
e6ceptions mentioned in the ConventionIs Article $.
000. Amalea 2as entitled to pursue :scar de -u@, invo=ing the right to hot pursuit
under Article 23 of the 9!" 9eneva Conventions on the )igh Seas. Since there 2as a
valid e6ercise ./ Amalea of the right of hot pursuit, the su.se?uent arrest of :scar de -u@
2as also clothed 2ith validit/ since it 2as incidental to the la2ful hot pursuit.
6iv
03. Amalea had Lurisdiction to tr/ and convict Ritanian citi@en :scar de -u@ .ecause
the territorialit/ principle applies to ena.le Amalea to e6ercise Lurisdiction to tr/ and
convict :scar de -u@ for all the victims a.oard the "osehill. Another principle at 2or=,
the passive personalit/ principle, Lustifies the e6ercise of Lurisdiction ./ Amalea over
:scar de -u@. Ritania cannot avail of the flag;State Lurisdiction over the Ritanian;flagged
$aedalus to Lustif/ their claim .ecause :scar de -u@ 2as not the master thereof. -astl/,
Ritania cannot claim Lurisdiction .ased on the e6istence of a safet/ @one around 56celsior
0sland and Amalea has no o.ligation to return :scar de -u@ to Ritania .ecause e6tradition
does not appl/ to the case at hand.
6v
PLEADINGS
I. RITANIAS ACTS AND OMISSIONS WITH RESPECT TO THE
DEVELOPMENT OF EXCELSIOR ISLAND VIOLATED
INTERNATIONAL LAW, AND AMALEA IS THEREFORE
ENTITLED TO SEEK COMPENSATION FROM RITANIA FOR
ECONOMIC LOSSES CAUSED BY THE LANDSLIDE.
A. Rit!i" #t" !$ %&i""i%!" 'it( )*"+*#t t% t(*
$*,*-%+&*!t %. E/#*-"i%) I"-!$ ,i%-t*$ i!t*)!ti%!-
-'.
1. Ritania violated the terms of the Malachi Gap Treaty
in allowing the Excelsior Island and Gas Power,
imited !EIGP" to cond#ct dredging within the
Malachi Gap.
#he dredging of oceanic sand and roc=s 2ithin the 4alachi 9ap area that 2ould adversel/
affect the fate of the <orian 2rasse

constitutes a .reach of Article 2 the 4alachi 9ap #reat/.

2

<espite a report pu.lished ./ the Amalean 5nvironmental Protection Agenc/, prepared ./ the
0nternational -eague for Sustaina.le A?uaculture 70-SA8
3
and 2hich 2as for2arded to the
Ritanian Am.assador,
$
Ritania still proceeded 2ith the dredging.
!
#he report concluded that an/
Compromis O " Bhereinafter Comp.C.
2 Comp. Appendi6 G, art. 27d8.
3 Comp. O 2!.
$ Id.
! Comp. O 2%.
(
maLor dredging activit/ in the 4alachi 9ap 2ould interfere 2ith ongoing research and
conservation efforts, and could prove catastrophic for native species and ecos/stems. 0t also
suggested that .ecause of the presence of gas h/drates at the foot of the Sirius Plateau, an
under2ater landslide 2ould threaten particularl/ grave damage.
(
#hus, it .ecomes clear that the
dredging 2ould preLudice AmaleaIs interest in the protection of fisheries 2hich is, conse?uentl/,
in .reach of the 4alachi 9ap #reat/.
$. Ritania failed its o%ligations #nder c#stomary
international environmental law to cond#ct a
comprehensive Environmental Impact &ssessment
!EI&" to incl#de the impact of the dredging to the fish
pop#lation within the Malachi Gap.
As part of the Ritanian licensing process, 509P 2as re?uired to conduct an environmental
impact assessment 750A8 for the 56celsior 0sland proLect. )o2ever, the 50A 2as not a.le to
address the potential impacts of the dredging program on the 2aters of the 4alachi 9ap, or on
fish species living there.
%
Under the 99 Convention on 5nvironmental 0mpact Assessment in a
#rans.oundar/ Conte6t, an 50A must contain the minimum re?uirements, one of 2hich is a
description of the potential environmental impact of the proposed activit/ and its alternatives and
an estimation of its significance.
"
Since 509P failed to compl/ 2ith the minimum content
re?uirement in its 50A for not addressing the potential impacts of the dredging program on the
2aters and the fish species of the 4alachi 9ap, Ritania failed its o.ligations under customar/
international environmental la2 for approving such 50A and su.se?uentl/ granting 509P permit
( Comp. O 2!.
% Comp. O 23.
" See Convention on 5nvironmental 0mpact Assessment in a #rans.oundar/ Conte6t Appendi6 00 7998 Bhereinafter
C50A#CC.
%
to dredge.
B. Rit!i (" $0t1 t% #%&+*!"t* A&-* .%) t(*
*#%!%&i# -%""*" it "0..*)*$ $0* t% t(* -!$"-i$*.
1. Ritania is lia%le #nder the &rticles on the
Responsi%ility of 'tates for International (rongf#l
&cts !&R'I(&".
#he Articles on the Responsi.ilit/ of States for 0nternational 1rongful Acts 7ARS01A8
2as adopted ./ the 0nternational -a2 Commission at its !3
rd
session in 2**.
9
0t contains the
underl/ing principle that an internationall/ 2rongful act of a state entails international
responsi.ilit/.
*

Under the ARS01A, an act or omission constitutes a .reach of an international o.ligation
2hen such conduct attri.uta.le to the State is not in conformit/ 2ith 2hat is re?uired of it ./ that
o.ligation, regardless of its origin or character.

4oreover, the characteri@ation of a conduct

attri.uta.le to the State as internationall/ 2rongful is independent from its characteri@ation in the
internal la2 of the state concerned.
2
Such act or omission is internationall/ 2rongful 2hen it is attri.uta.le to the State under
9 U' -590S-A#035 S5R05S, 4aterials :n #he Responsi.ilit/ :f States ,or 0nternationall/ 1rongful Acts vii,
O 3.
* Articles on the Responsi.ilit/ of States for 0nternational 1rongful Acts art. Bhereinafter ARS01AC.
Id! art. 2.
2 Id! art. 3.
"
international la2 and constitutes a .reach of an international o.ligation of the State.
3
Such
internationall/ 2rongful act is attri.uta.le to the State 2hen it falls under the follo2ing
circumstancesJ 78 2hen it is committed ./ a state organ,
$
2hether it e6ercises legislative,
e6ecutive, Ludicial or an/ other functions, 2hatever position it holds in the organi@ation of the
State, and 2hatever its character as an organ of the central 9overnment or of a territorial unit of
the State&
!
728 2hen it is committed ./ a person or entit/, not a State organ, .ut 2hich is
empo2ered ./ the la2 of that State to e6ercise elements of the governmental authorit/, provided
that such person or entit/ is acting in that capacit/ in the particular instance&
(
738 2hen it falls
under special cases 2here an organ of one State is placed at the disposal of another State and
empo2ered to e6ercise the governmental authorit/ of that State&
%
7$8 2hen it involves conducts
of organs or entities empo2ered to e6ercise governmental authorit/ even if it 2as carried out
outside the authorit/ of the organ or person concerned or contrar/ to instructions& 7!8 2hen such
conduct is carried out on the instructions of a State organ or under its direction or control&
"
7(8
2hen it constitutes conducts involving elements of governmental authorit/, carried out in the
a.sence of the official authorities&
9
7%8 2hen it is a special case involving the conduct of and
insurrectional or other movement 2hich su.se?uentl/ .ecomes the ne2 9overnment of the State
or succeeds in esta.lishing a ne2 State&
2*
and finall/ 7"8 2hen such conduct is not attri.uta.le to
3 Id! art. 2.
$ Id! art. $728.
! Id! art. $78.
( Id! art. !.
% Id! art. (.
" Id! art. ",
9 Id! art. 9,
2* Id! art. *.
9
the State under one of the earlier articles .ut 2hich is nonetheless adopted ./ the State, e6pressl/
or ./ conduct, as its o2n.
2
C. H,i!2 3)*#(*$ it" i!t*)!ti%!- %3-i2ti%!", Rit!i
#%&&itt*$ i!t*)!ti%!--1 ')%!2.0- #t" !$ t(*)*.%)*
&0"t t4* )*"+%!"i3i-it1 31 #%&+*!"ti%!.
1. The acts and omissions were attri%#ta%le to Ritania.
#he ARS01A provides that the conduct of an/ State organ shall .e considered an act of
that State under international la2, 2hether the organ e6ercises legislative, e6ecutive, Ludicial or
an/ other functions, 2hatever position it holds in the organi@ation of the State, and 2hatever its
character as an organ of the central 9overnment or of a territorial unit of the State. An organ
includes an/ person or entit/ 2hich has that status in accordance 2ith the internal la2 of the
State.
22
Under Ritanian la2, #he <epartment of Resource 4anagement, together 2ith other
government agencies claiming a specific interest, revie2s an 50A for a proposed marine
development proLect. #he department also issues a license authori@ing the developer to proceed if
all revie2ing agencies are satisfied 2ith the 50A and other information relating to the proLect.
23

0n performing such independent regulator/ role,
2$
the <epartment of Resource 4anagement is
undenia.l/ acting as a state organ of Ritania. All of the <epartment of Resource 4anagementIs
acts and omissions are therefore attri.uta.le to the state of Ritania including the approval of an
incomplete 50A and the granting of the permit to dredge in the 4alachi 9ap area.
2 Id! art. .
22 Id! art. $.
23 Comp. O 23.
2$ Comp. O 2!.
2*
$. Ritania m#st compensate &malea for the economic
loss it s#ffered and contin#es to s#ffer as a res#lt of
the #nderwater landslide %ro#ght a%o#t %y the
dredging within the Malachi Gap area.
i. Ritania brought adverse transboundary impact to
Amalea when the underwater landslide caused an
immediate and significant decrease in the Dorian
wrasse population.
After three months of dredging 2ithout incident, an under2ater landslide 2as detected
2hich 2as, ./ all accounts, the direct result of the dredging. #his has caused e6tremel/ high
2ater tur.idit/ levels 2hich persisted for several 2ee=s and a dissociation of gas h/drates at the
foot of the Sirius Plateau, resulting in a higher concentration of several dissolved gases,
including car.on dio6ide and methane, in shallo2 2aters throughout the Sirius Plateau.
2!
#he
under2ater landslide has .rought an adverse trans.oundar/ impact
2(
to Amalea for its immediate
and significant negative impact on the =no2n <orian 2rasse population.
2%
#his had led to the
decrease of the total catch of <orian 2rasse reported ./ the end of 2** and 2* 2hich had
fallen to 2!M and !M, respectivel/, of the levels reported in 2***. ,urthermore, in ,e.ruar/
2*2, 0-SA has declared the <orian 2rasse to .e an endangered species, and recommended that
commercial fishing .e suspended indefinitel/ until its population 2as regenerated.
2"
2! Comp. O 2".
2( C50A#C art. 7viii8 7998 7defining F#rans.oundar/ impactH as an/ impact, not e6clusivel/ of a glo.al nature,
2ithin an area under the Lurisdiction of a Part/ caused ./ a proposed activit/ the ph/sical origin of 2hich is situated
2holl/ or in part 2ithin the area under the Lurisdiction of another Part/8.
2% Comp. O 29.
2" Comp. O 3*.
2
ii. Ritania is obligated to compensate the economic
damage it has caused Amalea.
Article 3( of the ARS01A provides that the State responsi.le for an internationall/
2rongful act is under an o.ligation to compensate for the damage caused there./, insofar as such
damage is not made good ./ restitution.
29
Such damage ma/ .e material or moral.
3*
#he damage
caused ./ the under2ater landslide 2hich is the decrease in the population of the <orian 2rasse
cannot .e made ./ restitution due to its material impossi.ilit/.
3
Compensation also covers an/
financiall/ assessa.le damage including loss of profits insofar as it is esta.lished
32
thus, covering
AmaleaIs economic losses.
29 ARS01A art. 3(78.
3* Id! art. 3728.
3 Id. art. 3!.
32 ARS01A art. 3(728.
22
II. AMALEA HAS EXCLUSIVE OWNERSHIP OF THE WRECK OF
THE )&RG&'T AND ALL ARTIFACTS RECOVERED FROM IT,
AND RITANIAS DEPLOYMENT OF PATROL VESSELS TO THE
SITE OF THE )&RG&'T VIOLATED INTERNATIONAL LAW.
A. A&-* (" 3*tt*) )i2(t t% t(* )argast !$ -- it"
#%!t*!t" 0!$*) t(* L' %. Fi!$" !$ t(* L' %. S-,2*,
t% t(* */t*!t --%'*$ 31 t(* UNESCO C%!,*!ti%! %! t(*
P)%t*#ti%! %. U!$*)'t*) C0-t0)- H*)it2* 56UCH
C%!,*!ti%!78.
1. The *)+ )onvention governs &malea,s cond#ct of
the wrec-.
Article 787a8 defines Funder2ater cultural heritageH as all traces of human e6istence
having a cultural, historical or archaeological character 2hich have .een partiall/ or totall/ under
2ater, periodicall/ or continuousl/, for at least ** /ears,
33
including vessels and their cargo or
other contents, together 2ith their archaeological and natural conte6t.
3$
#he rich histor/ surrounding the Cargast has much to do 2ith the deeds of its captain,
Galdric 3erdigris,
3!
and in the precious artifacts that it contained.
3(
At the time the Cargast 2ent
do2n, 3erdigris held a letter of mar?ue from the Aing of Amalea, 2ho granted the ship to him
for use Fto .ring glor/ to the Aingdom of Amalea.H
3%
)istorians are unanimous in their
assumption that the cargo that 2ent do2n 2ith the Cargast contained a vast arra/ of precious
33 U'5SC: Convention on the Protection of Under2ater Cultural )eritage art. O 7a8, 'ovem.er 2, 2**, $
0-4 $* Bhereinafter UC) ConventionC.
3$ Id! O 7a87ii8.
3! Comp. O 3.
3( Comp. O 33.
3% Id.
23
stones, gold and other coinage, and .eLe2eled artifacts o.tained not onl/ during the Sac= of
)elios of $ 4arch !* .ut also during the trading mission that preceded it& as 2ell as, in
particular, the Sacred )elian Coronet, 2hich 2as placed on the heads of Ritanian monarchs
during their coronation ceremonies, and 2hich over the centuries has ac?uired m/thical
importance in Ritanian iconograph/, and a st/li@ed image of the Coronet occupies the center of
the flag of Ritania to the present da/.
3"
3erdigris died at sea on * 4arch !*, 2hen the Cargast disappeared in the Strait of
4alachi during a storm.
39
#hus, ta=ing into consideration their cultural and historical significance
as 2ell as their more than !** /ears of .eing lost under2ater, Article 787a8 of the UC)
Convention 2ould classif/ the Cargast and all its contents as under2ater cultural heritage.
Amalea is a State Part/ to the UC) Convention.
$*
As such, the Convention governs the
conduct of Amalea 2ith respect to an/ under2ater cultural heritage found 2ithin its
Lurisdiction.
$
$. Milo .elle//a,s salvage of the )argast was lawf#l
and allowa%le #nder the *)+ )onvention.
Amalea is a State Part/ to the 9"9 0nternational Convention on Salvage 7FSalvage
ConventionH8.
$2
#he Salvage Convention sought to codif/ the traditional principles in the la2 of
salvage, including those em.odied in the 9* Grussels Convention for the Unification of
Certain Rules of -a2 relating to Salvage at Sea, and update these principles in the light of
3" Comp. O 33.
39 Id.
$* Comp. O !2& See UC) Convention art. O 27a8 7defining FState PartiesH as States 2hich have consented to .e
.ound ./ the Convention and for 2hich the Convention is in force8.
$ UC) Convention art. 2.
$2 Comp. O !2.
2$
modern practice and Lurisdiction principles as 2ell as, in particular, to respond to gro2ing
international concerns relating to the protection of the marine environment.
$3
A maLor .rea=through in the UC) Convention is the reLection of the la2 of salvage and the
la2 of finds in sei@ing under2ater cultural heritage.
$$
)o2ever, there is an e6ception provided in
Article $ thereof 2hich applies s?uarel/ to 4ilo Gelle@@aIs retrieval of the Cargast! Article $
provides that an/ activit/ relating to under2ater cultural heritage
$!
shall not .e su.Lect to the la2
of salvage and the la2 of finds, unless itJ
3! is authori&ed by the competent authorities#
4! is in full conformity (ith this Convention# and
5! ensures that any recovery of the under(ater cultural heritage
achieves its ma6imum protection!
$(
Regarding the first element, competent authorities, according to the UC) Convention, are
those esta.lished ./ States Parties to esta.lish, maintain and update an inventor/ of under2ater
cultural heritage& the effective protection, conservation, presentation and management of
under2ater cultural heritage& as 2ell as research and education.
$%
0t is 2orth/ to note that the
Compromis is .ereft of an/ evidence on either the presence or a.sence of an/ such competent
authorities on the part of Amalea. 1hat is clear, ho2ever, is that the State of Amalea itself
contracted 2ith 4ilo Gelle@@a
$"
to e6plore the 2rec= and recover the items therefrom.
$9
#he
Amalean Cultural Affairs 4inistr/ 2ould later on descri.e Gelle@@a as the Fsalvor of the 2rec=
$3 10--0A4 A. :I'50--, ,ore2ord, #RA3AUD PR5PARA#:0R5S :, #)5 C:'35'#0:' :' SA-3A95
79"98.
$$ 4ar=us Rau, The U+,S- Convention on Under(ater Culture 'eritage and International La( of the Sea, $*!.
$! UC) Convention art. O (.
$( Id! art. $.
$% Id! art. 22 O .
$" Comp. O 3(.
$9 Id.
2!
of the CargastH
!*
Facting as agent for and on .ehalf of the Repu.lic of Amalea.H
!
Regarding the second element, 4ilo Gelle@@aIs salvage of the Cargast full/ complies
2ith the UC) Convention. AmaleaIs o.ligations under the Convention ma/ .e summari@ed
through o.Lectives of the UC) Convention.
!2
#hese include the dut/ to cooperate in the
protection of the under2ater cultural heritage,
!3
the o.ligation to preserve under2ater cultural
heritage for the .enefit of humanit/,
!$
the principle of in situ preservation as the first option
.efore allo2ing or engaging in activities directed at under2ater cultural heritage,
!!
the
prohi.ition of commercial e6ploitation of the under2ater cultural heritage,
!(
and the dut/ to give
proper respect to all human remains located in maritime 2aters.
!%
'one of these o.Lectives of the
Convention 2ere ever undermined in 4ilo Gelle@@aIs salvage of the Cargast!
As to the third element, the recover/ of the Cargast 2as necessar/ for its protection and
preservation. #he hull structure of the Cargast 2as at ris= of catastrophic collapse, and Amalea
immediatel/ contracted 2ith 4ilo Gelle@@a
!"
to e6plore the 2rec= and recover the items
therefrom.
!9
!* Comp. O 3".
! Id.
!2 4ar=us Rau, The U+,SC- Convention on Under(ater Cultural 'eritage and International La( of the Sea, $*$.
!3 UC) Convention art. 2 O 2.
!$ Id! O 3.
!! Id! O !.
!( Id! O %.
!% Id! O 9.
!" Comp. O 3(.
!9 Id!
2(
0. &malea has a %etter right to the wrec- #nder the law
of finds.
1hile the purpose of salvage la2 is to encourage the rescue of propert/ in marine peril,
(*

the o.Lect of the la2 of finds is the vesting of title after the reduction of a.andoned propert/ to
possession.
(
0n order to appl/ the la2 on finds in the conte6t of ship2rec=s, three elements must
.e presentJ
. Intent to reduce property to possession7
2. .ctual possession7 and
3. .bandonment of the original o(ner!
(2
:n the first element, AmaleaIs intent to reduce the propert/ to possession is evident in that
Amalean Prime 4inister Geesle/ responded to the discover/ ./ claiming that the Cargast and all
of the cargo are the propert/ of Amalea, to .e held in trust for all human=ind.
(3
)e even added
that the 2rec= should .e protected from those 2ho have no right to it.
($
Su.se?uentl/, AmaleaIs
Cultural Affairs 4inistr/ also declared that Amalea remains in fact and at la2 the o2ner of the
2rec= of the Cargast and its cargo.
(!
:n the second element, Amalea o.tained actual possession of the Cargast and its cargo
2hen it successfull/ salvaged the 2rec= and retrieved the artifacts, including the Sacred )elian
Coronet, through 4ilo Gelle@@a.
((
(* Justin S. <uClos, . Conceptual /rec01 Salvaging the La( of )inds, 3" n. Journal of 4aritime -a2 and
Commerce 2(, Januar/ 2**%.
( 4ar= A. 1ilder, .pplication of Salvage La( and the La( of )inds to Sun0en Ship(rec0 $iscoveries, (% n.
<efense Counsel Journal 93.
(2 "!M!S! Titanic# $3! ,.3d at !32 n.3.
(3 Comp. O 3$.
($ Id!
(! Comp. O 3".
(( Id! O 3(.
2%
:n the third element, the Cargast is deemed a.andoned ./ virtue of its commercial or
merchant character and its loss having reached !** /ears. #he attri.ute FcommercialH means that
the use of such vessels has to .e aimed at o.taining profits, so that even government ships, 2hen
operated for commercial purposes, are merchant vessels.
(%
Contemporar/ records reveal that
.efore 3erdigris and his men laid siege to )elios, the/ 2ere on their 2a/ .ac= to Amalea from a
ver/ successful trading mission to recentl/ discovered overseas territories.
("
4oreover, the cre2
of the Cargast 2ere private individuals emplo/ed ./ 3erdigris using funds provided ./ private
financial .ac=ers, 2ho hoped to recover their investment through shares of the foreign treasure
the/ hoped he 2ould .ring .ac= to Amalea.
(9
#his fact sho2s that throughout histor/
privateering through a letter of mar?ue 2as .usiness, in that capital 2as su.scri.ed ./ the
no.ilit/ and the middle class as .a=ers, .an=ers, .utchers, cheesemongers, coal merchants, d/ers,
grocers and ha.erdashers invested in commerce;raiding activit/.
%*
#a=en together, these facts
indicate the commercial nature of the purposes for 2hich 3erdigris and the cre2 of the Cargast
set sail.
A.andonment is presumed to e6ist 2! /ears after sin=ing and .ecomes a.solute after !*
/ears, and the onl/ e6ceptions to these rules are militar/ vessels and aircraft, 2hich are to remain
the propert/ of the sovereign nation forever.
%
#he Cargast has remained undiscovered 2ithout
an/ pu.lished claims until onl/ after the discover/ in 2**.
%2
#herefore, since the Cargast 2as a
commercial vessel and it 2as lost at sea for more than !** /ears, it is deemed a.andoned.
(% <ieter ,lec=, #he )and.oo= of 0nternational )umanitarian -a2 72*38.
(" Comp. O 33.
(9 Comp. O 32.
%* 9ar/ Sturgess, Privateering and Letters of Marque, ! n. Journal of 0nternational Peace :perations 3", Jul/;
August 2**9.
% Peter )ess, U+,SC-%Legali&ed Plunder2 7'ov. 22, 99"8, httpJKK222.imacdigest.comKunesco.html.
%2 Comp. O 3.
2"
#hese three elements concur to vest Amalea 2ith title of o2nership under the la2 of finds,
the application of 2hich does not contravene the UC) Convention in the facts at hand.
B. Rit!i" $*+-%1&*!t %. +t)%- ,*""*-" t% t(* "it* %. t(*
)argast ,i%-t*$ i!t*)!ti%!- -'.
1. The presence of Ritanian patrol vessels at the site of
the )argast violates innocent passage.
#he right to innocent passage, as laid do2n in the provisions of the 9"2 United 'ations
Convention on the -a2 of the Sea 7U'C-:S8, is considered part of customar/ international
la2.
%3
)ence, such right is deemed to .e availa.le to Amalea despite its failure to ratif/ the
U'C-:S.
%$
Passage is considered innocent so long as it is not preLudicial to the peace, good order or
securit/ of the coastal State,
%!
2hich in this case is Amalea. #he regime of innocent passage
applies not onl/ 2ith regard to the territorial sea .ut also in straits used for international
navigation .et2een a part of the high seas or an e6clusive economic @one and the territorial sea
of a foreign State.
%(
Coastal states ma/ also ta=e necessar/ steps to prevent passage 2hich is not
innocent.
%%
An activit/ that violates innocent passage in the territorial sea cannot .e considered to .e a
%3 Statement ./ the President of the 0nternational #ri.unal for the -a2 of the Sea, )reedom of +avigation1 +e(
Challenges ", 7Januar/ $, 2*$8,
httpJKK222.itlos.orgKfileadminKitlosKdocumentsKstatementsPofPpresidentK2olfrumKfreedomPnavigationP*"**"Peng.
pdf.
%$ Statute of 0nternational Court of Justice art. 3"787.8.
%! United 'ations Convention on the -a2 of the Sea art. 978, <ecem.er *, 9"2, "33 U.'.#.S. 3& 2 0-4 2(
Bhereinafter U'C-:SC.
%( U'C-:S art. $!. See also U'C-:S art. 9 O 7.8.
%% U'C-:S art. 2!.
29
Fpeaceful activit/H in the 55+.
%"
#he Ritanian nav/ .egan to patrol the area of the 2rec=,
reserving its right to send naval patrol vessels to the area to prevent other ships from reaching the
site,
%9
2hich patrol continues up to this da/.
"*
)ence, Ritania has violated the right to innocent
passage and Amalea ma/ prevent their passage in the 55+.
$. &malea possesses sovereign rights for the p#rpose
of exploring and exploiting, conserving and
managing the excl#sive economic /one, #nder
c#stomary international law.
#he allocation of rights in the 55+ forms part of customar/ international la2, and 2ere
codified in Article !(787a8 of the U'C-:S.
"
Amalea possesses sovereign rights 2ith regard to
other activities for the economic e6ploitation and e6ploration of its 55+. #he 2rec= of the
Cargast 2as located appro6imatel/ "* nautical miles from the nearest point of Amalean
shoreline.
"2
Geing 2ithin the Amalean 55+, the State has such sovereign rights over the 2rec=.
%" J0 9U:D0'9, #)5 -59A-0#E :, #)5 F04P5CCAG-5 0'C0<5'#H C)0'A S5CUR0#E, ! n. 2 Spring
2**9 9, 1orld Securit/ 0nstitute 72**98.
%9 Comp. O 3!.
"* Comp. O $*.
" 9erd 1inter, To(ards Sustainable )isheries La(1 . Comparative .nalysis $.
"2 Comp. O 3.
3*
III. AMALEA WAS ENTITLED TO PURSUE OSCAR DE LU9,
INVOKING THE RIGHT TO HOT PURSUIT UNDER ARTICLE :;
OF THE <=>? GENEVA CONVENTION ON THE HIGH SEAS
5HIGH SEAS CONVENTION8.
A. T(* Hi2( S*" C%!,*!ti%! 2%,*)!" t(* */*)#i"* %. t(*
Ri2(t t% H%t P0)"0it !$ !%t t(* <=?: UNCLOS.
1. &malea is not a 'tate party to the *1)2' and th#s
cannot %e s#%3ect to its treaty o%ligations.
Article 3*( of the U'C-:S itself specificall/ provides that this Convention is su.Lect to
ratification ./ States.
"3
#his is an e6ample of a convention re?uiring simple signature,
"$
2here a
signing State does not underta=e positive legal o.ligations under the treat/ pending ratification.
"!

#his is made more e6plicit under Article $ of the 3ienna Convention on the -a2 of #reaties
73C-#8. 1hile .oth Amalea and Ritania had signed the U'C-:S,
"(
onl/ Ritania ratified it as of
the time of the case at hand.
"%
Conse?uentl/, Amalea cannot /et .e considered a state part/ to the
U'C-:S.
""
"3 U'C-:S art. 3*( O 7.87c87d87e8& art. 3*!, O 7f8.
"$ :livier Corten > Pierre Alein, Commentar/, The Vienna Conventions on the La( of Treaties# 2" 72*8
7Signature is referred to as FsimpleH 2hen su.Lect to ratification, acceptance or approval.8
"! U' #reat/ )and.oo=, ! 72*28. See also 3ienna Convention art. " 79(98 7indicating StateIs intention to ta=e
steps to e6press its consent to .e .ound ./ the treat/ at a later date8.
"( Comp. OO *, .
"% Comp. 8 .
"" 3ienna Convention on the -a2 of #reaties art. 27.87g8, 4a/ 23, 9(9, !! U.'.#.S. 33& " 0-4 (%9& (3 AJ0-
"%! Bhereinafter 3C-#C.
3
$. &malea and Ritania are %oth parties to the 1456
Geneva )onventions on the aw of the 'ea !1456
Geneva )onventions".
64
Article 3 of the U'C-:S provides that this Convention shall prevail, as .et2een States
Parties, over the 9!" 9eneva Conventions.
9*
#his 2as added to clearl/ signif/ the intention of
the #hird Conference on the -a2 of Sea to supersede the 9!" 9eneva Conventions 2ith the
U'C-:S.
9
0n such a situation, Article 3* of the 3C-#, regarding the application of successive treaties
relating to the same su.Lect matter, is applica.le. 0n paragraph $7.8 thereof, it provides that as
.et2een a State part/ to .oth treaties and a State part/ to onl/ one of the treaties, the treat/ to
2hich .oth States are parties governs their mutual rights and o.ligations.
92
As discussed
previousl/, 2hile .oth Amalea and Ritania are parties to the 9!" 9eneva Conventions, onl/
Ritania is a part/ to the 9"2 U'C-:S.
93
)ence, the 9!" 9eneva Conventions, as the treat/ to
2hich .oth states are parties, govern the rights and o.ligations .et2een Amalea and Ritania
insofar as the -a2 of the Sea is concerned.
"9 9eneva Conventions on the -a2 of the Sea 79!"8 7comprising four ConventionsJ #he Convention on the
#erritorial Sea and the Contiguous +one& #he Convention on the )igh Seas& #he Convention on ,ishing and
Conservation of the -iving Resources of the )igh Seas& and #he Convention on the Continental Shelf8 Bhereinafter
9C-SC.
9* U'C-:S art. 3.
9 4/ron 'ord?uist, Commentar/, United +ations Convention on the La( of the Sea 39:4# 23! 79"98.
92 3C-# art. 3*7$87.8.
93 Comp. OO *, .
32
0. The laws and reg#lations of &malea were violated,
entitling it to hot p#rs#it and arrest of the alleged
offender.
1hen a foreign vessel 2ithin the territor/ of a coastal State commits an/ violation of the
la2s and regulations of that coastal State, such vessel ma/ .e immediatel/ pursued into the open
seas .e/ond territorial limits and su.se?uentl/ ta=en.
9$
#his concept of hot pursuit, as defined ./
Article 23 of the 9!" 9eneva Convention on the )igh Seas, remained unchanged 2ith the entr/
of the U'C-:S in Article thereof, and even has the force of custom, enforcea.le against
states 2hich have neither signed nor ratified an/ of the Conventions on the -a2 of the Sea.
9!
#he 0nternational #ri.unal for the -a2 of the Sea, in the M;V Saiga <+o!4= Case,
recogni@ed that, first, there must e6ist some domestic la2 that is applica.le to the ship;violator
9(

7the $aedalus8, and second, the application of that la2 must .e compati.le 2ith 0nternational
-a2.
9%
#he #ri.unal noted that the e6isting international rule in relation to the circumstances 2as
the U'C-:S.
9"
)o2ever, since Amalea is not a part/ to the U'C-:S and that .oth the states of
Amalea and Ritania are parties to the 9!" 9eneva Conventions, the latter 2ill govern as have
.een previousl/ discussed.
B. T(* ))*"t %. O"#) $* L0@ '" ,-i$, 3*i!2 i!#i$*!t- t%
-'.0- */*)#i"* %. (%t +0)"0it.
#here can .e no valid arrest follo2ing hot pursuit if the e6ercise of such pursuit is not in
9$ A--5', <:C#R0'5 :, ):# PURSU0# 7citing #he Aing v. the Ship 'orth, 3% S. C. R. 3"! 79*!;*(88.
9! 'icholas 4. Poulant@as, The "ight of 'ot Pursuit in International La( 66viii.
9( 0nternational #ri.unal for the -a2 of the Sea, Saint Vincent and the renadines v! uinea, Judgment, Jul/
999, O 22 Bhereinafter Saiga caseC.
9% Id! 8 2(.
9" Id! 8 2%.
33
accordance 2ith the elements as codified in the U'C-:S, 2hich elements 2ere first contained
in the )igh Seas Convention.
99
#o .e la2ful, the pursuit must conform to the follo2ing elementsJ
. The competent authorities of the coastal State have good
reason to believe that the ship has violated the la(s and
regulations of that State7 provided that if the foreign ship is
(ithin a contiguous &one# as defined in .rticle 4> of the
Convention on the Territorial Sea and the Contiguous ?one# the
pursuit may only be underta0en if there has been a violation of
the rights for the protection of (hich the &one (as established7
2. Such pursuit must be commenced (hen the foreign ship or
one of its boats is (ithin the internal (aters# the archipelagic
(aters# the territorial sea or the contiguous &one of the pursuing
State7 and
3. The pursuit may only be continued outside the territorial
sea or the contiguous &one if the pursuit has not been
interrupted!
**
#he first element is satisfied in that the Amalean 'av/ 2as informed ./ the Amalean
Coastal Protection Service 7ACPS8 through an alert descri.ing the "osehill collision as
99 Id! 8 !*.
** U'C-:S art. .
3$
apparentl/ caused ./ a /acht that had hurriedl/ left the scene, and that the /acht had .een seen
speeding a2a/ .earing 2est north2est, creating a danger for other vessels.
*
Captain )addoc=
of the Icarus received the ACPS alert 2hich said, FRitanian flagged /acht $aedalus last seen
fleeing 56celsior 0sland to2ards Amalea. #he /acht is stolen and persons on .oard are suspected
of human traffic=ing.H
*2
#he sin=ing of the "osehill as 2ell as the suspicions of human
traffic=ing constitute valid grounds for the Amalean 'av/ to .elieve that the $aedalus had
violated the la2s and regulations of Amalea, as 2ell as the rights for the protection of 2hich the
@one 2as esta.lished.
#he second element is also satisfied 2hen the pursuit 2as commenced 2hile the $aedalus
2as 2ithin 23 nautical miles from AmaleaIs coastline, 2ell 2ithin the contiguous @one of
Amalea.
*3
,inall/, the third element is li=e2ise present since the $aedalus 2as onl/ a.le to reach the
uncontested 56clusive 5conomic +one 755+8 of Ritania .efore it san=, and 2hereupon -u@ 2as
arrested.
*$
Up to that point, the pursuit remained uninterrupted.
* Comp. 8 $$.
*2 Comp. clarifications 8 $$.
*3 Comp. 8 $!.
*$ Comp. 8 $(.
3!
IV. AMALEA HAD JURISDICTION TO TRY AND CONVICT LU9
FOR CRIMINAL ACTIONS RELATED TO THE R2'E+I
INCIDENT, AND HAS NO OBLIGATION TO RETURN HIM TO
RITANIA.
A. A&-* ($ A0)i"$i#ti%! t% t)1 !$ #%!,i#t Rit!i!
#iti@*! O"#) $* L0@.
1. The territoriality principle applies to ena%le &malea
to exercise 3#risdiction to try and convict 2scar de
#/ for all the victims a%oard the Rosehill.
All crimes committed 2ithin the territorial Lurisdiction of a state ma/ come .efore the
municipal courts and the accused if convicted ma/ .e sentenced, even 2here the offenders are
foreign citi@ens.
*!
#he territorial principle covers crimes committed not onl/ upon the land territor/ of the
state .ut also on the high seas 2here the state is the flag state of the vessel.
*(
#his principle 2as
recogni@ed as earl/ as 92% in the Lotus case, 2here the PC0J ruled that a ship on the high seas is
assimilated to the territor/ of the State the flag of 2hich it flies, for, Lust as in its o2n territor/,
that State e6ercises its authorit/ upon it, and no other State ma/ do so.
*%
#he territorial concept
even encompasses not onl/ crimes committed 2holl/ on the territor/ of a state .ut also crimes in
*! S)A1, 0'#5R'A#0:'A- -A1 (!3 7citing 'olmes v. @angladesh @inani Corporation B9"9C AC 2,
3%& "% 0-R, pp. 3(!, 3"*Q, per -ord 9rifRths and -ord Gro2ne;1il=inson in ,6 parte Pinochet 7+o! 58 B2***C
AC $%, ""& 9 0-R, p. 398.
*( Id! at (!(.
*% S.S. -otus 7,r. v. #ur=.8, 92% P.C.0.J. 7ser. A8 'o. * 7Sept. %8, 2! Bhereinafter -otus caseC.
3(
2hich onl/ part of the offense has occurred in the state.
*"
Appl/ing the a.ove rules, the "osehill, an Amalean;registered vessel on the high seas,
*9
is
deemed assimilated into the territor/ of Amalea. 4oreover, the deaths and inLuries to the
passengers, 2hich are necessaril/ part of the offenses charged
*
against -u@, all occurred 2hile
the/ 2ere a.oard the "osehill!

Such facts su.stantiate the applica.ilit/ of the territorial

principle to grant Amalea proper Lurisdiction to tr/ and convict :scar de -u@. #his principle also
Lustifies AmaleaIs act of charging -u@ for all 2% 2ho died in the incident, including those 2ho
.elonged to different nationalities.
2
$. The passive personality principle 3#stifies the
exercise of 3#risdiction %y &malea over 2scar de
#/.
A state ma/ claim Lurisdiction to tr/ an individual for offences committed a.road 2hich
*" S)A1, 0'#5R'A#0:'A- -A1, citing the Lotus case, PC0J, Series A, 'o. *, 92%, pp. 23, 3*& $ A<, pp.
!3, !9, and Judge 4oore, ibid!, p. %3& the )arvard Research <raft Convention on Jurisdiction 2ith Respect to
Crime, 29 AJ0-, 93!, Supp., p. $"* 7article 38, and A=ehurst, SJurisdictionI, pp. !2Q3. See -ord 1il.erforce, $PP
v. $ootB9%3C AC "*%, "%& !% 0-R, pp. %, 9 and " v. @erry B9"$C 3 All 5R **". See also Strassheim v.
$ailey 22 US 2"* 798& US v. Columba%Colella(*$ ,.2d 3!( and US v. Pere&%'errera (* ,.2d 2"9.
*9 Comp. 8 $.
* Comp. 8 $%.
Comp. O $3.
2 S)A1, 0'#5R'A#0:'A- -A1 (!3, citing 'olmes v. @angladesh @inani Corporation B9"9C AC 2,
3%& "% 0-R, pp. 3(!, 3"*Q, per -ord 9rifRths and -ord Gro2ne;1il=inson in ,6 parte Pinochet 7+o! 58 B2***C
AC $%, ""& 9 0-R, p. 39.
3%
have affected or 2ill affect nationals of the state.
3
Ano2n as the passive personalit/ principle, it
creates Lurisdiction 2hen a national of a State is the victim of a crime.
$
#his doctrine has .een
used ./ States to protect their citi@ens a.road.
!
1hile the application of this principle still lac=s
uniformit/ among states that practice it,
(
the validit/ of the passive personalit/ principle is no
longer in ?uestion among scholars.
%
#his has .een accepted ./ all states and the international
communit/ as .eing consistent 2ith international la2.
"
#he "osehill, an Amalean;registered cruise ship carr/ing !!( passengers, %*M of 2hom
2ere Amaleans, 2ith 2! cre2 mem.ers from various nationalities, 2as navigating close to
56celsior 0sland in response to customersI re?uests and after the shipIs o2ners had o.tained
permission therefor.
9
)o2ever, upon approaching the 0sland, the $aedalus# a stolen Ritanian;
flagged /acht under the control of :scar de -u@, a Ritanian citi@en, 2as speeding to2ards the
0sland and 2as on a collision course 2ith the "osehill!
2*
#his forced the captain of the "osehill
3 Id! at (($.
$ 9avouneli, )unctional *urisdiction in the La( of the Sea.
! John 9. 4cCarth/, The Passive Personality Principle and Its Use in Combating International Terrorism,
,ordham 0nternational -a2 Journal, 3** 79"98.
( John 4cCarth/Is e6amples. #here are at least seven o.served methods of appl/ing the passive personalit/
principleJ 8 #he principle can .e applied .roadl/ to cover all crimes, as in the case of the 9%! amended ,rench
Penal Code. 28 #he principleIs use can .e limited to specificall/ enumerated crimes, 2hich is true of the United
StatesI )ostage #a=ing Act and Antiterrorism Act. 38 #he principle ma/ .e e6ercised over crimes 2ith a certain
minimum degree of punishment, as used ./ the 0talians in their penal code 2hich e6cludes crimes for 2hich the
minimum penalt/ is less than one /ear of incarceration. $8 Some countries use the principle onl/ 2hen the chief
e6ecutive such as the =ing or president, or their representative, commences its assertion, as provided in the penal
codes of 'or2a/, ,inland, 0tal/ and S2eden. !8 #he principle ma/ onl/ .e allo2ed 2hen the accused is found in the
territor/ of the countr/ see=ing to e6ercise Lurisdiction, as in the case of the 0talian penal code. (8 Some countries
appl/ the principle 2hen the countr/ 2ith territorialit/ Lurisdiction does not prosecute, such as the Repu.lic of
Aorea 2ith its Aorean Criminal Code. %8 #he principle can .e invo=ed 2hen the crime is also punished in the
countr/ 2here it occurred, as is re?uired under the ,innish penal code as 2ell as in the la2s of 9reece, 'or2a/ and
S2eden.
% John 9. 4cCarth/, The Passive Personality Principle and Its Use in Combating International Terrorism,
,ordham 0nternational -a2 Journal, 3" 79"98.
" 4A-C:-4 S)A1, 0'#5R'A#0:'A- -A1 (!2 7(
th
ed. 2**"8.
9 Comp. 8 $.
2* Comp. 8 $2.
3"
to veer to2ard 56celsior 0sland and to accelerate in order to avoid 2hat seemed an imminent
collision, causing the ship to stri=e the 0sland 2ith significant force.
2
#he impact caused ruptures to three o6/;fuel tan=s on the 0sland, in turn leading to a series
of e6plosions that tore large holes in the hull of the "osehill and caused fires that spread through
parts of the ship, 2hich .egan to sin=.
22
Gefore nightfall, 2% passengers and cre2 of the
"osehill died from e6plosions, .urns, smo=e inhalation, and dro2ning, 2ith !* others
inLured.
23
"9 of the dead 2ere Amalean nationals.
2$
Appl/ing the passive personalit/ principle,
Amalea had Lurisdiction to tr/ and convict -u@ on account of the Amalean deaths 2hich are
attri.uta.le to his conduct of the $aedalus!
0t is 2orth/ to note that AmaleaIs e6ercise of the passive personalit/ principle reflects a
practice of criminal la2 in the Repu.lic of AoreaJ the Aorean Criminal Code utili@es the passive
personalit/ principle 2hen the state 2ith territorial Lurisdiction does not tr/ the crime, protecting
the offender from dou.le Leopard/.
2!
Amalea proceeded 2ith the trial, noting that Ritanian
criminal la2 did not e6pressl/ provide for prosecution of offenses committed outside the
countr/Is territorial 2aters, and therefore -u@ might never .e re?uired to ans2er for his
crimes.
2(
2 Id.
22 Comp. 8 $3.
23 Comp. 8 $2.
2$ Id.
2! John 9. 4cCarth/, The Passive Personality Principle and Its Use in Combating International Terrorism,
,ordham 0nternational -a2 Journal, 3% 79"98 7citing Aorean Criminal Code, art. ( 79"388.
2( Comp. 8 $9.
39
0. Ritania cannot avail of flag7'tate 3#risdiction over
the Ritanian7flagged 8aedal#s to 3#stify their claim
as 2scar de #/ was not the master thereof.
#he .asic rule regarding Lurisdiction over ships on the high seas
2%
is that the flag state
alone ma/ e6ercise such Lurisdiction over the ship.
2"
)o2ever, this .asic principle is su.Lect to
e6ceptions regarding other vessels, one of 2hich is in the event of a collision or of an/ other
incident of navigation concerning a ship on the high seas.
29
Article of the )igh Seas
Convention, 2hich modified the previous decision of the predecessor of the 0CJ, the Permanent
Court of 0nternational Justice 7PC0J8, in the Lotus case,
3*
declares that penal or disciplinar/
proceedings ma/ onl/ .e ta=en against the master or other persons in the service of the ship ./
the authorities of either the flag state or the state of 2hich the particular person is a national, and
that no arrest or detention of the ship, even for investigation purposes, can .e ordered ./ other
than the authorities of the flag state.
3
)ad -u@ .een the master of the $aedalus# this rule 2ould operate to give Ritania e6clusive
Lurisdiction over -u@ as regards the incident, given that the ship 2as fl/ing a Ritanian flag.
)o2ever, this rule cannot appl/ in the case at hand as -u@ 2as not the master of the $aedalus
nor 2as he in the service of the same ship. #he master in maritime la2 is a natural person hired
2% Convention on the )igh Seas art. , April, 29, 9!", 3 U.S.#. 232& $!* U.'.#.S. 7defining the term Fhigh
seasH8.
2" Convention on the )igh Seas art. ( 79!"8& Convention on the )igh Seas art. 92 79"28.
29 S)A1, 0'#5R'A#0:'A- -A1 ($, 7(
th
ed. 2**"8.
3* 92% P.C.0.J. 7ser. A8 'o. * at 2!& $ A< at !3.
3 S)A1, 0'#5R'A#0:'A- -A1 (" 72**"8 7citing )igh Seas Convention art. 8 7#his 2as reaffirmed in
Article 9% of the 9"2 U'C-:S8. See also 9!2 Convention for the Unification of Certain Rules Relating to Penal
Jurisdiction in matters of Collision& Convention for the Suppression of Unla2ful Acts of 3iolence against the Safet/
of 4aritime 'avigation, 4arch *, 9"", 2% 0-4 (("& (%" U.'.#.S. 22.
$*
./ contract 2ho lives on a vessel and manages it and its related matter 2hile the vessel is
navigating and carr/ing goods or performing services for freights or hire, and the person
appointed and retained commander of a vessel in commercial service and licensed ./ competent
national authorit/.
32
:scar de -u@ 2as not such a master of the $aedalus nor can his control of it
.e construed as in the service of the ship since the facts clearl/ stipulate that the ship 2as stolen,
and that -u@ did not possess an/ license or evidence from competent authorities appointing him
as master of the $aedalus!
33
9. Ritania cannot claim 3#risdiction %ased on the
existence of a safety /one aro#nd Excelsior Island.
Article (* of the U'C-:S allo2s coastal States to construct and authori@e the construction
of artificial islands
3$
such as 56celsior 0sland. Paragraphs $ and ! thereof gives the coastal State
the right to esta.lish reasona.le safet/ @ones of a ma6imum of !** meters around such artificial
islands.
3!
Paragraph 2 of the same Article even grants coastal States e6clusive Lurisdiction over
such artificial islands 2ith regard to customs, fiscal, health, safet/ and immigration la2s and
regulations.
3(
)o2ever, it is of no moment that the incident occurred 2ithin !** meters of 56celsior
0sland since the rights and o.ligations .et2een Amalea and Ritania as to the -a2 of the Sea is
governed ./ the 9!" Conventions and not the 9"2 U'C-:S, as previousl/ discussed. #he
9!" 9eneva Conventions do not provide for such safet/ @ones.
32 Cartner > ,is=e -eiter, The International La( of the Shipmaster3 72**98.
33 Comp. 8 $2.
3$ U'C-:S art. (*.
3! Id! OO $, !.
3( Id! O 2.
$
4oreover, even assuming arguendo that the U'C-:S is applica.le in this case, there is
nothing in the Compromis that 2ould indicate that Ritania esta.lished a safet/ @one and such
esta.lishment cannot .e presumed given that Article (*7!8 re?uires due notice to .e given of the
e6tent of safet/ @ones.
3%
B. A&-* (" !% %3-i2ti%! t% )*t0)! O"#) $* L0@ t%
Rit!i.
1. Extradition does not apply in this case.
#he practice of e6tradition ena.les one state to hand over suspected or convicted criminals
2ho have fled their o2n countr/ .ac= to their state of origin and citi@enship, and is .ased on
.ilateral treat/ la2, as there does not e6ist a similar o.ligation upon states in customar/ la2.
3"

9iven that there is no e6tradition or mutual legal assistance treat/ e6isting .et2een Amalea and
Ritania,
39
the former state cannot .e o.liged to e6tradite -u@ to the latter state.
$. Restit#tion wo#ld involve a %#rden o#t of proportion
to the %enefit so#ght to %e achieved.
Article 3! of the 0nternational -a2 CommissionIs Articles on the Responsi.ilit/ of States
for 0nternationall/ 1rongful Acts 7FARS01AH8 provides that a State responsi.le for an
internationall/ 2rongful act is under an o.ligation to ma=e restitution, that is, to re;esta.lish the
situation 2hich e6isted .efore the 2rongful act 2as committed, provided and to the e6tent that
3% U'C-:S art. (* O !.
3" S)A1, 0'#5R'A#0:'A- -A1 ("(. Citing See e.g. the Joint <eclaration of Judges 5vensen, #arassov,
9uillaume and Aguilar 4auds;le/, the Loc0erbie case, 0CJ Reports, 992, 3, 2$& 9$ 0-R, $%", !*%& 0CJ Reports,
992, p. 3"& 9$ 0-R, !2 7Judge GedLaoui& dissenting opinion8.
39 Comp. 8 !2.
$2
restitution does not involve a .urden out of all proportion to the .enefit deriving from restitution
instead of compensation.
$*
Restitution ma/ ta=e the form of material restitution such as release and return of persons
2rongl/ detained,
$
as 2ell as the form of Ludicial restitution such as the rescinding or
reconsideration of a Ludicial measure 2rongfull/ adopted in respect of the person of a
foreigner.
$2
0n the case at hand, restitution in the form of returning -u@ to Ritania 2ould .e grossl/ out
of proportion to the .enefit of tr/ing him regarding the "osehill incident, since Ritanian criminal
la2 did not provide for prosecution of offenses committed outside the countr/Is territorial
2aters.
$3
Such return 2ould amount to setting him free, never having to ans2er for his crimes.
#his Court cannot countenance such an inLustice to occur.
$* ARS01A art. 3!.
$ Commentaries, ILC $raft .rticles on the "esponsibility of States for Internationally /rongful .cts# ( 72**8.
$2 Id! at 9%.
$3 Comp. 8 $9.
$3
CONCLUSION AND PRAYER FOR RELIEF
#he State of Amalea respectfull/ re?uests that this Court adLudge and declare thatJ
. RitaniaIs acts and omissions 2ith respect to the development of 56celsior 0sland
violated international la2, therefore, Amalea is entitled to see= compensation from
Ritania for economic losses caused ./ the landslide.
2. AmaleaIs e6clusive o2nership of the 2rec= of the Cargast and all artifacts recovered
from it and RitaniaIs deplo/ment of patrol vessels to the site of the Cargast violated
international la2.
3. Amalean 'av/Is pursuit of :scar de -u@ into RitaniaIs 55+, and his su.se?uent
arrest, 2ere in compliance 2ith international la2.
$. Amalea had Lurisdiction to tr/ and convict -u@ for criminal actions related to the
"osehill incident, and that it has no o.ligation to return him to Ritania.
$$