237A

THE INTERNATIONAL COURT OF JUSTICE

AT THE PEACE PALACE,

THE HAGUE, THE NETHERLANDS

THE 2019 BRAWIJAYA INTERNATIONAL LAW MOOT COURT COMPETITION

Case Concerning Seabed Mining in Marse Sea

PEOPLE’S DEMOCRATIC OF ATUSCHA

(APPLICANT)

V.

FEDERAL REPUBLIC OF RICORIO

(RESPONDENT)

MEMORIAL FOR THE APPLICANT

 TABLE OF CONTENT

TABLE OF CONTENTS................................................................................... i

PLEADINGS .................................................................................................. ii

I. THE COURT HAS JURISDICTION OVER THE CASE ............... iii

A. THE COURT SHOULD DISMISS THE RESERVATION OF

RICORIO ........................................................................................... III

1. The reservation made by Ricorio did not dismissed the

jurisdiction over the Court ............................................................... iii

B. THE PROCEEDING BEFORE THE COURT SHALL OBTAIN

CONSENT FROM BOTH PARTIES .............................................. IV

1. The settelment throught Negotiation has conducted without any

results ................................................................................................. iv

2. There was no agreement regarding the dispute settlement

mechanism ......................................................................................... iv

II. THE RESOURCE EXPLORATION AND EXPLOITATION

CONDUCTED BY RICORIO AND ROR IN THE MARSE SEABED

VIOLATED INTERNATIONAL ENVIRONMENTAL LAW AND

THUS OPERATION OF ROR IN THE MARSE SEABED SHOULD

BE STOPPED ............................................................................................ v

A. RICORIO HAS BREACHED GENERAL PRINCIPLE OF

INTERNATIONAL ENVIRONMENTAL LAW ............................ V

 1.Ricorio has breached the Principles of Good Neighborliness and

International Cooperation ................................................................ vi

2.The exploitation in the Marse Seabed conducted by ROR

breached the Precautionary Principle ............................................. vi

B. THE POLYMETALLIC NODULES EXPLOITATION

CONDUCTED BY ROR IS UNLAWFUL ..................................... VII

1. ROR has no right to exploit the

Area......................................................................................................v

ii

2. The exploration and exploitation in Marse seabed harm the

marine environment ........................................................................ viii

PRAYER FOR RELIEF .................................................................................. x

 PLEADINGS

I. THE COURT HAS JURISDICTION OVER THE CASE

In order to maintained the dispute by peaceful means and in conformity with the

International law1, the People’s Democratic Republic of Atuscha (hereinafter, Atuscha)

filed the application againts the Federal Republic of Ricorio (hereinafter, Ricorio) to the

International Court of Justice (hereinafter, the Court) since (A) the Court should dismiss

the reservation of ricorio, and (B) the Court should dismiss the reservation.

A. THE COURT SHOULD DISMISS THE RESERVATION OF

RICORIO

Atuscha and Ricorio has acknowledged ICJ jurisdiction2, a declaration made

under article 36 Para (2) through compulsory ipso facto or without special agreement

give the same obligation of a State Party to accept jurisdiction of the court.3

1. The reservation made by Ricorio did not dismissed the jurisdiction

over the Court

A reservation of a state can be unless if the reservation prohibited by the treaty

itself, the treaty provide that only specified reservation, and incompatible with the

treaty.4 Even if the reservation justified, the court can neglect the reservation for settling

the dispute if there is no agreement between the state parties in. 5 Furthermore, in the

present case no agreement has made between both parties to proceed this present case to

1
Charter of United Nations, 24 October 1945, 1 UNTS XVI (hereinafter, UN Charter) Article 1
2
Facts 15-16
3
United Nations, Statute of the International Court of Justice, 18 April 1946, Article 36 para.2
(hereinafter, the Statute)
4
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty
Series, vol. 1155, p. 331, Article 19
5
Maritime Delimitation in the India Ocean (Somalia v. Kenya), Preliminary Objection, Judgement, I.C.J.
Reports 2017, p.3
court. Therefore, the court shall neglect the reservation of Ricorcio regarding Article 36

para 2 of the statute.

B. THE PROCEEDING BEFORE THE COURT SHALL OBTAIN

CONSENT FROM BOTH PARTIES
For the claim admissible before the court, the parties shall first resolve the

dispute through local agreement or by such regional bodies.6

1. The settelment throught Negotiation has conducted without any

results

The mining conducted by Ricorio Ocean Resources (hereinafter, ROR)

located in Marse Seabed Clipperton Fracture Zone in Pacific Ocean.7 The party to any

dispute in Pacific Ocean shall seek the settelment in peaceful means by negotiation,

inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional bodies

or arrangements.8 Both countries met in four occasions to negotiate the settlement of the

issue on exploitation in Marse Sea, however there was no solution agreed by the two

nations.9 Hence, the negotiation was unable to solve this problem.

2. There was no agreement regarding the dispute settlement

mechanism

Prior to the exploitation conduct, both parties were failed to settle the dispute

due to no agreement mechanism made.10 The dispute must be resolved immediately

because it has involved national interests of Atuscha, specifically regarding the marine

environment,11 whereas the sustainability of the sea environment must be maintained for

6
UN Charter Article 52
7
Facts 5
8
UN Charter Article 33 para.1
9
Facts 13
10
Facts 17
11
Facts 11
the future.12As the member of United Nations the dispute settlement through negotiation

has conducted without any result,13 therefore the dispute settlement through the

proceeding of the International Court of Justice14 as a judicial organ of United

Nations.15 Hence, the Court has jurisdiction.

II. THE RESOURCE EXPLORATION AND EXPLOITATION CONDUCTED

BY RICORIO AND ROR IN THE MARSE SEABED VIOLATED

INTERNATIONAL ENVIRONMENTAL LAW AND THUS OPERATION OF

ROR IN THE MARSE SEABED SHOULD BE STOPPED

The resource exploration and exploitation conducted by the government of

Ricorio and ROR in the Marse Seabed16 are not comply with International

Environmental Law considering, (A) Ricorio has breached General Principle of

International Environmental Law (B) The Polymetallic Nodules exploitation conducted

by ROR and Ricorio is unlawful in international law

A. RICORIO HAS BREACHED GENERAL PRINCIPLE OF

INTERNATIONAL ENVIRONMENTAL LAW

In accordance with generally accepted principle of Environmental International

law, the responsibility of ensuring activities under state jurisdiction or control do not

cause damage to the environment or the natural resources under the jurisdiction of other

contracting parties or of areas beyond the limits of national jurisdiction.17 In the present

12
UN General Assembly, World Charter for Nature., 28 October 1982, A/RES/37/7
13
Facts 17
14
UN Charter Article 33
15
UN Charter Article 92
16
Facts 4
17
UNCLOS Article 257
case, (1) Principles of Good Neighborliness and International Cooperation and (2)

Precautionary Principle are breached.

1. Ricorio has breached the Principles of Good Neighborliness and

International Cooperation

ROR conducted a Polymetallic Nodules exploitation in the Marse Seabed18

which damaging the sea area19 and resulting in a decline of Atuscha’s income from the

fisheries sector.20 The conduct does not comply with the Good Neighborliness and

International Cooperation principle to put responsibility for a state to not damage the

environment and prohibit any activity that are contrary to the rights of other states and

which could harm other states or their inhabitant.21 This principle is considered to be an

application of the sic utere tuo, et alienum non laedas.22 The environmental damage,

which is polluted sea condition, that appeared in this case is a proof that Ricorio has

breached the Good Neighborliness and International Cooperation principle.

2. The exploitation in the Marse Seabed conducted by ROR breached

the Precautionary Principle

In the present case, sea pollution has found as the effect on the resource

exploration and exploitation in the Marse seabed conducted by ROR.23 However,

Ricorio is still waiting for the environmental investigation conducted by the government

of Ricorio before terminated the operation.24 Ricorio’s act is in contrary with the

18
Facts 9
19
Facts 10
20
Facts 11
21
International cooperation was dictated by the International Court of Justice in Corfu Channel (U.K. v.
AIb.), 1949 I.C.J. (April 22). See also Lac Lanoux Arbitration (Spain v. Fr.), 12 R.I.A.A. 285
(Arbitral Tribunal affirmed "France is entitled to exercise her rights; she cannot ignore the Spanish
interests.").
22
The maxim was invoked as a rule by Hungary in the Gabcikovo-Nagymaros Project (Hung. v. Slovk.),
1992 I.C.J.
23
Facts 10
24
Facts 12
precautionary principle which stated that lack of full scientific certainty shall not be

used as a reason for postponing cost-effective measures to prevent environmental

degradation.25 Therefore, even when there is no scientific evidence to prove a causal

link between the emission and the effects, Ricorio shall take any action to reduce the

damage and stop the operation. In addition, pursuant to the Aerial Herbicide Spraying

case, by damaging the sea and caused a pollution, Ricorio has failed to act in a

sufficient with precautionary manner. 26

B. THE POLYMETALLIC NODULES EXPLOITATION

CONDUCTED BY ROR IS UNLAWFUL

The activation of the Alita 1 project was conducted prior to international legal

regime was established.27 The location of exploration and exploitation is 200nm from

Ricorio’s EEZ.28 Pursuant to the UNCLOS, the location can be concluded as a part of

the ‘Area’.29 All of the resources in the Area may only be alienated in accordance with

part XI of the UNCLOS and the rules, regulations and procedures of the Authority

(hereinafter, ISA).30 Therefore, the polymetallic nodules exploitation conducted by

ROR is unlawful since: (1) ROR has no right to exploit the Area (2) The exploration

and exploitation harm the environment

1. ROR has no right to exploit the Area

25
UN Conference on the Human Environment ‘Stockhlom Declaration of the United Nation Conference
on Human Environment’ (16 June 1972) UN Doc A/CONF.48/14 Rev 1,3. Principle 15992,
Article 15
26
Aerial Herbicide Spraying (Ecuador v. Columbia), proceedings instigated 31 March 2008
27
Facts 8
28
Facts 4
29
Article 1 Para. 1 of UNCLOS: “Area" means the seabed and ocean floor and subsoil thereof, beyond
the limits of national jurisdiction.
30
Article 137 Para 2 of UNCLOS: “All rights in the resources of the Area are vested in mankind as a
whole, on whose behalf the Authority shall act. These resources are not subject to alienation. The
minerals recovered from the Area, however, may only be alienated in accordance with this Part
and the rules, regulations and procedures of the Authority”
 In January 2016, ROR was granted the permission as one of contractors for

exploration for Polymetallic Nodules in Clipperton Fracture Zone.31 There are two kinds

of contracts in ISA: (a) Exploration contracts which govern data-gathering, sampling,

prospecting, and reporting and (b) Exploitation contracts which govern all aspects of

actual mining.32 By far, there are 17 exploration contracts, however no exploitation

contracts were in effect33 since the regulation is currently under development.34 Article

5 of the 1994 Agreement Relating to the Implementation of Part XI of the United

Nations Convention on the Law of the Sea provides that adoption of rules, regulations

and procedures are necessary for the conduct of activities in the Area.35 In the present

case, ROR has conducted an exploitation in the Area without adopting any applicable

rules, as ISA has not yet established regulation on exploitation in seabed area. 36 And in

order to have right to exploit the Area, a state/company shall have Exploitation Contract

which requiring a formal written plan of work.37 Therefore, Ricorio has no right to

exploit the Area as Ricorio only apply for a plan of work of exploration.

2. The exploration and exploitation in Marse seabed harm the

marine environment

Ocean Institute (hereinafter, OI) discovered that the exploitation in Marse seabed

conducted by ROR is damaging the sea area.38 President of Atuscha also stated that

Atuscha experienced the significant decline of income from the fisheries sector and

31
Facts 5
32
Deep Sea Mining: The Basics, Pew Charitable Trusts
33
International Seabed Authority, ‘Deep Seabed Mineral Contractors’, <https://www.isa.org.jm/deep-
seabed-minerals-contractors>
34
Facts 8
35
1994 Agreement Relating to the Implementation of Part XI of the United Nations Convention on the
Law of the Sea, Article 5
36
Facts 8
37
UNCLOS Article 153 para.3
38
Facts 10
there was a polluted sea condition.39 This action is in contrary with ISA Regulations on

Prospecting and Exploration for Polymetallic Nodules in the Area and the UNCLOS.

Pursuant to the UNCLOS and the ISA Regulations on Prospecting and Exploration for

Polymetallic Nodules in the Area, each contractor shall take necessary measures to

prevent, reduce and control pollution and other hazards to the marine environment

arising from its activities in the Area as far as reasonably possible using the best

technology available to it.40 Thus, the pollution that appeared in the Marse Seabed is a

proof that ROR and Ricorio has failed to prevent pollution to the marine environment.

Furthermore, no action of Ricorio to reduce the pollution is a proof that Ricorio is failed

to reduce and control the pollution to the marine environment. Therefore, Ricorio’s

action is harming the Marse sea.

39
Facts 11
40
ISA Regulations on Prospecting and Exploration for Polymetallic Nodules in the Area, Article 31
 PRAYER FOR RELIEF

For the foregoing reasons, the Applicant respectfully requests this Honorable

Court to find, adjudge, and declare that:

I. The court has jurisdiction over the present dispute

II. The resource exploration and exploitation conducted by the government of

ricorio and ROR in marse seabed violated international environmental law and

thus operation of ROR in the marse seabed should be stopped