MOOT COURT MEMORIAL BY HRISHIKESH JAISWAL, NLIU BHOPAL, AMITY INTERNATIONAL MOOT COURT, Thesis of Law

Download MOOT COURT MEMORIAL BY HRISHIKESH JAISWAL, NLIU BHOPAL, AMITY INTERNATIONAL MOOT COURT and more Thesis Law in PDF only on Docsity! TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 IN THE CASE CONCERNING THE LEGAL BASIS OF MARITIME RIGHTS AND ENTITLEMENTS IN THE SOUTH DOSANDA SEA Before INTERNATIONAL COURT OF JUSTICE, THE HAGUE, NETHERLANDS IN THE MATTER BETWEEN: REPUBLIC OF ASKIA APPLICANT Versus REPUBLIC OF DOSANDA RESPONDENT MEMORIAL for APPLICANT T- 61 TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 TABLE OF CONTENTS Index of Authorities.............................................................................................................................................. Statement of Jurisdiction...................................................................................................................................... Statement of Facts...............................................................................................................................................XI Questions Presented..........................................................................................................................................XIV Summary of pleadings.......................................................................................................................................XV PLEADINGS.......................................................................................................................................................17 I. Dosanda has interfered with Askia’s Sovereign Rights over non-living and living resources and has interfered with traditional fishing activities of Askia’s fisherman at the sparky islands...................................................................................................................................................17 A. Dosanda has interfered with Askia’s sovereign rights over the resources at the Sparky Islands..............................................................................................................................................................17 1. Askia has sovereign rights over the resources at Sparky islands.......................................................................17 2. There is no overlap of entitlements..................................................................................................................18 3. Dosanda has interfered with Askia’s sovereign rights over fisheries and coral reefs in its EEZ.........................................................................................................................................................................18 4. Dosanda has deployed oil rig in Askia’s EEZ without its permission..................................................................19 B. Dosanda’s has interfered with the traditional fishing rights of Askian fishermen..................................20 1. Askia has exclusive fishing rights in its EEZ........................................................................................................20 2. Dosanda has deprived the Askian fishermen of their fishing rights in the High Seas........................................20 3. Dosanda has deprived the Askian fishermen of their traditional fishing rights in the Archipelagic Waters of Sparky Islands...................................................................................................................21 C. Dosanda’s claim to historic rights is incompatible with international law.............................................22 1. Dosanda’s claims are incompatible with UNCLOS.............................................................................................22 2. Dosanda’s claims are incompatible with CIL......................................................................................................23 a) Dosanda’s exercise of authority was not long and continuous.....................................................................23 b) Dosanda’s acts were opposed by other states..............................................................................................23 TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 INDEX OF AUTHORITIES I.C.J. CASES Anglo-Norwegian Fisheries case,(U.K. v. Norway) ICJ Reports, 1951..................................20 Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) case, ICJ Reports, 1993...................................................................17 Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Merits, Judgment, I.C.J. Reports, para. 64,(1985).............................................................................................36 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment, I.C.J. Reports 1984........................................................................34 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001.................................................................17 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany. Netherlands), Judgment, I.C.J. Reports 1969,.................................17 Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2016.............................................................................................35 Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, I.C.J. Reports 2012......................................................................................................................................21 OTHER CASES Dispute Concerning Delimitation of the Maritime Boundary Between Bangladesh and Myanmar in the Bay of Bengal (Bangladesh/Myanmar), Judgment of 14 March 2012, ITLOS Reports 2012............................................................................................................17 Grand-Duchy of Luxembourg v. CLT, 91 ILR, 281................................................................23 Rann of Kutch Arbitration (India v. Pakistan) 17 R.I.A.A. 553( 1968 );................................22 South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, I.C.G.J PAGE | V MEMORIAL for RESPONDENT INDEX OF AUTHORITIES TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 495........................................................................................................................................17 Sovereignty and Maritime Delimitation in the Red Sea (Eritrea-Yemen), 449 XXII RIAA 211 (1998)...................................................................................................................................22 BOOKS 2 MYRON H. NORDQUIST, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY, para 56.11(a) (Martinus Nijhoff. 2002)..........................17 2 MYRON H. NORDQUIST, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982: A COMMENTARY,( ROSENNE EDS.81, 1993)...........................................37 30 G. FITZMAURICE, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE, 1951-54: GENERAL PRINCIPLES 51 (British Yearbook of International Law 1953).......................................................................................................20 MACGIBBON, CUSTOMARY INTERNATIONAL LAW, 131, and H. S. MCDOUGAL ET AL., STUDIES IN WORLD PUBLIC ORDER, NEW HAVEN, 763–72(1960)...............23 MALCOLM N. SHAW, INTERNATIONAL LAW 565 (8 ed. 2017)................................................17 POLITE DYSPRIANI, TRADITIONAL FISHING RIGHTS: ANALYSIS OF STATE PRACTICE 33 (Division for Ocean Affairs and The Law Of The Sea Office Of Legal Affairs, 2011).......................................................................................................................20 ARTICLES Arai, Yuta, The interpretation of the regime of islands: application to Okinotorishima, World Maritime University Dissertations, p.19 (2019)..................................................................34 Arif Ahmed, International Law of the Sea: An Overlook and Case Study, 21 (Beijing Law Review, 2017)......................................................................................................................19 Boleslaw Adam Boczek, Peacetime military activities in the exclusive economic zone of third countries, 19 ODIL 445-456 (1988)....................................................................................22 Christopher Mirasola, Historic Waters and Ancient Title: Outdated Doctrines for Establishing Maritime Sovereignty and Jurisdiction, 47 J. MAR. L. & COM. 29 (2016)..33 PAGE | VI MEMORIAL for RESPONDENT INDEX OF AUTHORITIES TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 D. W. Bowett, The Legal Regime of Islands in International Law, p. 34, (1979)...................36 Don Mcrae & Gordon Munro, On Canadian Oceans Policy: National Strategies and The New Law of The Sea p.223, (2012)......................................................................................38 F. Dupuy and P. Dupuy, A Legal Analysis of China’s Historic Rights Claim in the South China Sea, American Journal of International Law, Vol. 107, No. 1 (Jan. 2013),..............27 Guo Yuan, On Historic Rights under the Law of the Sea, 2008 CHINA Oceans L. REV. 216 (2008)...................................................................................................................................22 J.M Van Dyke and R.A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources,12, Ocean Development and International Law, No. 3-4, p. 288, (1983)...................................................................................................................................35 James Kraska, ‘Military Activities on the Continental Shelf,’ Lawfare (22 August 2016.......26 James W. Houck & Nicole M. Anderson, The United States, China, and Freedom of Navigation in the South China Sea, 13 WASH. U. GLOBAL STUD. L. REV. 441, 448 (2014). ..............................................................................................................................................16 Jonathan I. Charney, Rocks that Cannot Sustain Human Habitation, The American Journal of International Law, 93 Cambridge University Press,4, Oct., 1999, p. 863-878. (Oct., 1999) ..............................................................................................................................................34 Jose Luis Jesus, “Rocks, New-born Islands, Sea Level Rise, and Maritime Space” in Negotiating for Peace (Jochen A. Frowein, et. al., eds., p. 587-592, (2003).......................36 Kent E. Carpenter, Ph.D., Eastern South China Sea Environmental Disturbances and Irresponsible Fishing Practices and their Effects on Coral Reefs and Fisheries, Second Carpenter Report, p. 24 (22 Mar. 2014)...............................................................................18 Robert Beckman, China, UNCLOS and the South China Sea, ASILTBC para 17 (2011)......21 Robert Kolb, “The Interpretation of Article 121, Paragraph 3 of the United Nations Convention on the law of the Sea: Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, 40,French Yearbook of International Law, p. 903, 906, (1994)...................................................................................................................................35 PAGE | VII MEMORIAL for RESPONDENT INDEX OF AUTHORITIES TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 STATEMENT OF JURISDICTION The Republic of Askia (“Askia/Applicant”) and the Republic of Dosanda (“Dosanda/Respondent”) appear before the International Court of Justice in accordance with Article 40(1) of its Statute through submission of a Special Agreement for resolution of all the differences concerning legal basis of maritime rights and entitlement in South Dosanda Sea. This Court has jurisdiction over the dispute pursuant to Article 36(1) of its Statute. The parties concluded this special agreement and Compromis in The Hague, The Netherlands and jointly notified this Court of their special agreement on 10 August 2020. PAGE | X MEMORIAL for RESPONDENT STATEMENT OF JURISDICTION TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 STATEMENT OF FACTS ASKIA AND DOSANDA Askia, is an archipelagic country in South East Asia, it is known for variety of natural resources and globally significant biodiversity, Askia’s economy is transforming from one based upon agriculture to an economy with more emphasis upon services and manufacturing. However, large parts of the coastal populations of Askia, mainly rely on fishing for their livelihood and fishing. Dosanda is a country in East Asia, It is world’s most populous country with large and rapid growing Economy. SPARKY ISLANDS Sparky Islands are composed of islands, islets and cays and reefs, sometimes grouped in submerged old atolls. Coral reefs being the predominant structures of these islands. The islands contain less than 2 km2 of naturally occurring land area, spread over an area of more than 100,000 km2. It contains almost no significant arable land, have no indigenous inhabitants, and very few islands have permanent drinkable water supply. LOCATION OF SPARKY ISLANDS The sparky islands lie in the southern part of the south Dosanda Sea and off the coasts of the Askia. The distance between southern tip of Dosanda and northern tip of Askia is around 1842 nautical miles. The minimum distance of the island from the coast of Askia is 180 nautical miles and from the coast of Dosanda is 700 nautical miles. ACTIVITIES BY DOSANDA ON SPARKY ISLANDS The first installment was done in 1991 when Dosanda installed a small military structure on Piery ross Reef in Sparky Islands. Later, in 2012, Dosanda’s state owned National Offshore Oil Company (NOOC) deployed a Deepwater oil rig, into waters within the EEZ of Askia. which led to a protest that turned into a deadly skirmish between Askia’s and Dosanda’s Navy. LAND RECLAMATION ACTIVITIES AND CONSTRUCTION OF ARTIFICAL STRUCTURES In 2013, it was reported land reclamation activities by Dosanda has been detected on various low tide elevations on the high seas in South Dosanda Sea. Between 2016-2018, Dosanda PAGE | XI MEMORIAL for RESPONDENT STATEMENT OF FACTS TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 built artificial islands with a total area of close to 1,000 acres on 5 coral reefs and other low tide elevations in the Northern part of the Sparky Islands. The report also claims that majority of these artificial islands are on the high seas. Later in 2018 some more Military Developments were established on Piery Ross reef and two other reefs on Sparky Islands. HARM TO ENVIRONMENT To build these islands, Dosanda dredgers gathered and deposited sand and gravel on top of the Coral reefs which were already under heavy stress. Coral loss due to bleaching, disease, and destructive fishing methods has occurred, and these reefs, face threats from ocean acidification and rising sea levels. Destructive practices of dynamite and cyanide fishing, mainly by Dosanda in the region, are resulting in irreversible damage to aquatic habitats and ecosystems. In a study conducted by the government of Askia in 2018, about 71% of Askia’s reefs are in poor to fair condition due to excessive siltation caused by deforestation and the widespread use of sodium cyanide and explosives by fishermen. DOSANDA’S UNDERWATER SURVILLIENCE SYSTEM AND PASSING OF REGULATION In 2016, Dosanda deployed an underwater surveillance system to monitor the movements of foreign ships. The Government of Dosanda also issued a new regulation requiring that foreign ships transiting through what is considered as Dosanda’s waters in the South Dosanda’s Sea should be granted permission by the relevant authorities, granting them a legal basis for compelling foreign fishing boats out of the disputed water, robbing their fish catch and fining their crew. CONFLICT BETWEEN STATES The dispute escalated in the region due to declining fish stocks and increasing demand of the growing population leading to clashes between fishermen. It further fuelled by the territorial conflicts over sovereignty in the South Dosanda Sea as Dosanda claimed Sovereign rights over Sparky Islands and water surrounding it on basis of Historic Rights. Due to increasing tensions in the region, in January 2020 the Southeast Asian Association (SAA), comprising 5 member states including Dosanda and Askia, passed a resolution calling Dosanda to halt land reclamation activities in the South Dosanda Sea. Dosanda, however, objected to the resolution and continued with its land reclamation activities. After several failed diplomatic negotiations both the countries have decided to submit the matter of the dispute to the PAGE | XII MEMORIAL for RESPONDENT STATEMENT OF FACTS TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 SUMMARY OF PLEADINGS I. 1st PLEADING Dosanda has interfered with Askia’s sovereign rights as they have exploited the fisheries and coral reefs within Askia’s EEZ without its express permission. Also, Dosanda had deployed the oil rig in Askia’s EEZ without its permission, thus violating UNCLOS. Through its national regulations, Dosanda has violated Askian fisherman’s traditional fishing rights which they had acquired through fishing at Sparky Islands since time immemorial. Dosanda cannot claim historic rights over the South Dosanda Sea and Sparky Islands as their claims are incompatible with both UNCLOS and Customary International Law. II. 2nd PLEADING Dosanda construction activities of artificial islands, installations and structures in the EEZ of Askia without its authorisation are unlawful because they violate its obligations under UNCLOS and both treaty and customary law for not assessing the environmental consequences of its activities. Under UNCLOS, Dosanda activities go beyond what UNCLOS authorises and infringe the rights of Askia provided by UNCLOS. Dosanda failed to prepare EIA of its activities which beached its obligations under treaty and customary law. III. 3rd PLEADING Dosanda has claimed indisputable sovereignty over the islands in the South Dosanda Sea and the adjacent waters, and sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof. The basis of these claims is Historic Rights. These claims are inconsistent with Various provisions of UNCLOS, including classification of features as these features cannot be classified as Islands under Article 121 and therefore are not entitled to maritime zones. Moreover, Dosanda’s claims with regard to Straight Baselines are also inconsistent under UNCLOS. PAGE | XV MEMORIAL for RESPONDENT SUMMARY OF ARGUMENTS TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 PAGE | XVI MEMORIAL for RESPONDENT SUMMARY OF ARGUMENTS TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 PLEADINGS I. DOSANDA HAS INTERFERED WITH ASKIA’S SOVEREIGN RIGHTS OVER NON-LIVING AND LIVING RESOURCES AND HAS INTERFERED WITH TRADITIONAL FISHING ACTIVITIES OF ASKIA’S FISHERMAN AT THE SPARKY ISLANDS. Dosanda, through its activities in the South Dosanda Sea, has interfered with [A] Askia’s sovereign rights over resources at the Sparky Islands, as well as [B] the traditional fishing rights of Askian fishermen. Furthermore, [C] Dosanda’s claim to historic rights is incompatible with international law. A. DOSANDA HAS INTERFERED WITH ASKIA’S SOVEREIGN RIGHTS OVER THE RESOURCES AT THE SPARKY ISLANDS. Dosanda has interfered with Askia’s sovereign rights over non-living and living resources as [1] Askia has sovereign rights over the resources at Sparky Islands, [2] there is no overlap of entitlements, [3] Dosanda is interfering with Askia’s sovereign rights fisheries and corals reefs resources in its EEZ and [4] Dosanda has deployed oil rig in Askia’s EEZ without its permission. 1. Askia has sovereign rights over the resources at Sparky islands. United Nations Convention on the Law of the Sea [Hereinafter, “UNCLOS”] is the international agreement governing all the activites in international maritime zones.1 UNCLOS entitles coastal states to a 200 nautical mile, EEZ from its baseline in the South Dosanda Sea,2 This entitlement confers states with exclusive rights over all the resources found therein.3 Additionally, UNCLOS also entitles states to have exclusive rights4 to exploit the resources found in the Continental Shelf. These rights are inherent5 to the coastal state, and exist ipso facto and ab initio by virtue of its sovereignty over the land. 6 1 James W. Houck & Nicole M. Anderson, The United States, China, and Freedom of Navigation in the South China Sea, 13 WASH. U. GLOBAL STUD. L. REV. 441, 448 (2014). 2 UN Convention on the Law of the Sea, art.56, 1833 U.N.T.S. 397. (1982). [Hereinafter, UNCLOS]. 3 UNCLOS, Art. 56(1)(a). 4 UNCLOS, Art. 77(2). 5 UNCLOS, Art. 77(3). 6 North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany. Netherlands), Judgment, Dissenting Opinion of Judge Tanaka, I.C.J. Reports 1969, para. 19 (Feb 1969). PAGE | 17 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 liberties provided by the UNCLOS.28 Moreover, there was no express permission taken by Dosanda in this regard.29 Therefore, Dosanda has violated Askia’s sovereign rights by deploying the oil rigs in the EEZ of Askia. B. DOSANDA’S HAS INTERFERED WITH THE TRADITIONAL FISHING RIGHTS OF ASKIAN FISHERMEN. In addition to unlawfully infringing the exclusive sovereign rights appertaining to the Askia under UNCLOS, Dosanda has also violated UNCLOS and Customary International Law [Hereinafter “CIL”] by depriving Askian fishermen of their traditional livelihood at Sparky Islands. Dosanda has interfered with the fishing rights of Askian fishermen [1] in its EEZ, [2] High Seas and [3] Archipelagic Waters at Sparky Islands. 1. Askia has exclusive fishing rights in its EEZ In the EEZ, states other than the coastal state can have access to the fisheries30 only when the coastal state does not have the full capability to exploit its resources,31 provided, the parties have entered into an express agreement to this effect.32 In the present case, a part of the Sparky Islands falls within the EEZ of Askia, thereby conferring sovereign right of exploitation on Askia.33 Large parts of the coastal populations of Askia, mainly rely on fishing for their livelihood and fishing has long constituted an important part of the Askian Economy. 34 Moreover, Askia and Dosanda have not entered into any agreement which confers fishing rights over Dosanda. Therefore, Dosanda’s act of conducting fishing activities in the Sparky Islands invades the traditional fishing rights of Askian fisherman within Askia’s EEZ. 2. Dosanda has deprived the Askian fishermen of their fishing rights in the High Seas. High Seas are those parts of the sea that are not within any other country’s jurisdiction35 and open to all states.36 The principle of freedom of High Seas is a renowned principle of international law,37 and no one state can restrain any other state from exercising such 28 UNCLOS, Art.78. 29Compromis, ¶ 13. 30 UNCLOS, Art. 62. 31 UNCLOS, Art. 62. 32 PCIJ Series A/13, No. 42, 1931. At 116. 33 Compromis, ¶ 7. 34 Compromis, ¶ 6. 35 UNCLOS, Art. 86. 36 UNCLOS, Art.87(1), Shaw, supra note 11, at 609. 37 Arif Ahmed, International Law of the Sea: An Overlook and Case Study, 21 (Beijing Law Review, 2017) PAGE | 20 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 freedom38 Furthermore, freedom of fishing is a traditional and well-recognized facet of the doctrine of the high seas.39 Majority of the area surrounding Sparky Islands are considered to be high seas with a portion of it falling within the EEZ of Askia.40 Therefore, Askian fisherman, like the fishermen of all other countries, have the right to fish in that area. In light of the principle of freedom of High Seas, Dosanda, does not have the authority to restrain Askian fishermen from exercising this right. Therefore, issuance of permit regulation, which deprives the Askian fisherman of their fishing rights, is not good in law. Thus, Dosanda has unlawfully interfered with the fishing rights of Askian fishermen in the High Seas, thereby acting in contravention of UNCLOS 3. Dosanda has deprived the Askian fishermen of their traditional fishing rights in the Archipelagic Waters of Sparky Islands. Alternatively, even if the area adjacent to Sparky Islands is considered to be Dosanda’s Archipelagic Waters, Askian fisherman will have a right to fish there as they have acquired tradition fishing rights for that area.41 Traditional fishing rights are attained when the fishermen of a country are used to fishing in a part on territorial waters of another state from time immemorial and through them the their country acquires vested interest in that area.42 Such fishing should be of a traditional, and not commercial in nature, in that it must be done by the indigenous community of that area.43 Askia’s indigenous fishermen community44 have engaged in traditional fishing activities in the waters in and around Sparky Islands since ancient times.45 It must be noted that traditional fishing rights are distinct from the Dosanda’s unfounded claims to historic rights. By restraining these fisherman from fishing in this region, Dosanda has interfered with their traditional fishing rights, as provided under UNCLOS. Under UNCLOS, all the parties to a dispute are required to resolve it through peaceful 38 Id. at 609-610. 39 Anglo-Norwegian Fisheries case,(U.K. v. Norway) ICJ Reports, 1951, pp. 116, 183; 18 ILR, pp. 86, 131; UNCLOS, Art. 87(1)(e) 40 Clarifications, Correction point 6. 41 UNCLOS, Art.51, Shaw, supra note 11, at 568. 42 30 G. FITZMAURICE, THE LAW AND PROCEDURE OF THE INTERNATIONAL COURT OF JUSTICE, 1951-54: GENERAL PRINCIPLES 51 (British Yearbook of International Law 1953). 43 POLITE DYSPRIANI, TRADITIONAL FISHING RIGHTS: ANALYSIS OF STATE PRACTICE 33 (Division for Ocean Affairs and The Law Of The Sea Office Of Legal Affairs, 2011). 44 Compromis, ¶ 3,4. 45 Compromis, ¶ 15. PAGE | 21 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 means.46 But, in the present case, Dosanda rather than resolving the fishing disputes through peaceful means, passed regulations which escalated tensions in the region.47 Thus, endangering peace within the meaning of the U.N. Charter.48 Hence, Dosanda has unlawfully interfered with traditional fishing rights of Askian Nationals at Sparky Islands. C. DOSANDA’S CLAIM TO HISTORIC RIGHTS IS INCOMPATIBLE WITH INTERNATIONAL LAW Dosanda’s claim to sovereignty in the South Dosanda Sea on the basis of historic rights is incompatible with [1] UNCLOS and [2] CIL. 1. Dosanda’s claims are incompatible with UNCLOS. UNCLOS is the constitution for law of seas,49 in terms that it includes all rules in the legal order for the oceans.50 While UNCLOS contains express and comprehensive provisions for maritime entitlements and sovereign rights,51 it does not find any mention of historic rights. Since the right to historic waters has not been recognized by UNCLOS, states cannot claim sovereignty on the basis of such right.52 In fact, upon ratification of UNCLOS, states effectively gave up any historic rights they had to the natural resources in areas that are now the EEZ or Continental Shelf of other States.53 Therefore, Dosanda’s assertion of its historic rights claims in the South Dosanda Sea is incompatible with UNCLOS54 as well as its obligation under Vienna Convention to comply with the provisions of UNCLOS in good faith.55 46 UNCLOS, Art. 279. 47 Compromis, ¶ 14. 48 United Nations, Charter of the United Nations, Art. 2 Para 3, 24 October 1945, 1 UNTS XVI, l (UN Charter). 49 U.N. Conference on the Law of the Sea, 185th Meeting, U.N. Doc. A/CONF.62/PV.185 (26 Jan. 1983), para. 47. 50 Tullio Treves, Coastal States’ rights in the maritime areas under UNCLOS, UNICEB, p.40,(2015). 51 UNCLOS at 30, THE UNITED NATIONS, (November 2012), https://www.un.org/depts/los/convention_agreements/pamphlet_unclos_at_30.pdf 52 Territorial and Maritime Dispute (Nicaragua v. Colombia), Merits, Judgment, I.C.J. Reports 2012, paras. 118, 139, 174, 177, 182(November 2012).; Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 91, paras. 167, 185, 195, 201(March, 2001). 53 Robert Beckman, China, UNCLOS and the South China Sea, ASILTBC para 17 (2011). 54 Z. Gao and B.B. Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications, 107, AJIL 99 (2013). 55 Vienna Convention on the Law of Treaties, Art. 26 (23 May 1969), 1155 U.N.T.S. 332, entered into force 27 Jan. 1980(VCLT). PAGE | 22 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 II. DOSANDA HAS CONSTRUCTED ARTIFICIAL ISLANDS, INSTALLATIONS, AND STRUCTURES AT VARIOUS REEFS IN THE EXCLUSIVE ECONOMIC ZONE OF ASKIA WITHOUT ITS AUTHORIZATION. Dosanda’s construction activities related to artificial islands, installations, and structures at various reefs and low tide elevations [Hereinafter, LTEs] are unlawful because [A] they are incompatible with UNCLOS; [B] Moreover, they violated both treaty and customary international law when it neither conducted a formal EIA not assessed the environmental consequences of its activities. A. DOSANDA’S CLAIMS ARE INCOMPATIBLE WITH UNCLOS. Dosanda claimed rights w.r.t its construction activities are incompatible with the UNCLOS because (1) the rights claimed by Dosanda go beyond the authorizations provided in UNCLOS; (2) the rights claimed by Dosanda infringe with Askia’s rights under UNCLOS; and (3) UNCLOS does not recognise historic rights or effective occupation. 1. The rights claimed by Dosanda go beyond authorizations provided in UNCLOS. Dosanda claims that it has rights over construction activities conduced on Sparky Islands. Though, such claims of Dosanda are beyond authorization provided in UNCLOs. a. Dosanda does not have the right to exploit the resources in Askia’s EEZ. Askia, according to the UNCLOS and other international agreements and customs is entitled to EEZ in the South Dosanda Sea. According to Articles 5770 and 7671, Askia has an EEZ and continental shelf of 200 nautical miles from its baseline. Thus, Askia has full sovereign rights and jurisdiction over all the low tide features, waters, subsoil and seabed within the limits of 200 NM from its baseline, for the purpose of exploring and exploiting, conserving and managing the natural resources.72 However, Dosanda’s state owned National Offshore Oil Company (NOOC) deployed a deep- water oil rig into waters within the EEZ of Askia73 i.e. outside the scope of 200NM that the 70 UNCLOS, Art. 57 71 UNCLOS, Art. 76 72 UNCLOS, Art. 56(1)(a) 73 Compromis, ¶ 9. PAGE | 25 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 UNCLOS provides to the Dosanda. It has also installed some military structures on reefs in the vicinity of the Askia occupied islands74. Since the right to construct structures within EEZ of other coastal states go beyond the authorizations provided in UNCLOS, Dosanda’s construction activities in Askia’s EEZ are illegal. b. Dosanda’s construction activities in high seas are impermissible. High seas and its resources are common heritage of mankind,75 therefore it should be used exclusively for peaceful purposes by all States.76 The determination of whether an activity is peaceful or not is made under Article 2(4) of the UN Charter.77 The Charter prohibits the threat or use of force and calls on all Members to respect the sovereignty, territorial integrity and political independence of other States.78 In the present scenario, Dosanda has constructed an infrastructure to place its war fighting equipment including missiles, radars, signal jamming systems, ships and fighter aircraft; underground facilities for the storage of its weapons; and large hangars to accommodate military transport aircraft.79 Clearly, these activities do not fall within the ambit of ‘peaceful purposes’ as they are posing threat to sovereignty, territorial integrity and political independence of other States, by creating war-like potentials. Though none of the states involved want war, minor confrontations could spiral into an international armed conflict if crisis prevention mechanisms are not put into place.80 Therefore while exercising the freedom of High Seas, Dosanda has not cared about this condition. Hence, Dosanda has violated the provisions of UNCLOS through its construction activities. c. Dosanda activities has failed to provide ‘due regard’ to other coastal states’ rights. Under UNCLOS, states are expected to conduct their activities with due regard to the rights and legitimate interests of any coastal State.81 Those military activities that rise to the level of or, are of such scale that they do not have ‘due regard’ for the coastal state’s rights to living and non-living resources of the EEZ and continental shelf are impermissible.’82 74 Compromis, ¶ 9. 75 UNCLOS, Art 136 76 UNCLOS, Art 141 77 UNCLOS, Art 301. 78 UN Charter, Art 2(4) 79 Compromis, ¶ 11. 80 Volker Stanzel, Danger on The High Seas: The East Asian Security Challenge, European Council 0n Foreign Relations, European Council on Foreign Relations, Policy Brief, No.156,(2016). 81 UNCLOS, art 142 82 James Kraska, ‘Military Activities on the Continental Shelf,’ Lawfare (22 August 2016). online: PAGE | 26 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 Dosanda has been constructing artificial islands, installations and structures on the reefs of Sparky Islands, since 1991. Prior to the commencement of Dosanda’s dredging and island building in the Sparky Islands, the South Dosanda Sea’s coral reefs were already under heavy stress. Coral loss due to bleaching, disease, and destructive fishing methods has occurred, and these reefs, like others around the world, face threats from ocean acidification and rising sea levels.83 Clearly, these construction activities causing more burden to these reefs when they are already stressed. Thus, affecting other coastal state’s rights to living and non-living resources of the EEZ and continental shelf. 2. The rights claimed by Dosanda infringe with Askia’s rights under UNCLOS. Article 56(1) of UNCLOS provides coastal states sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, within its EEZ.84 Under Article 60(1)(b), the coastal State shall have the exclusive right to construct and to authorize and regulate the construction, operation and use of artificial islands, installations and structures within its EEZ.85 Article 77 announces that no one may undertake these activities (exploitation and exploration of natural resources) without the express consent of the coastal State, within its continental shelf.86 The natural resources mentioned here includes the mineral and other non-living resources of the seabed and subsoil together.87 Under UNCLOS, the coastal State has the exclusive right to regulate the establishment and use of artificial islands, installations and structures within its EEZ.88 Since Askia’s EEZ extends up to certain portions of the Sparky Islands, it was necessary for Dosanda to take their consent, not only for the construction of artificial islands, installations and structures but also for their operation and use. As no such consent was requested from or granted by Askia for construction or use of the same, Dosanda has acted in violation of UNCLOS, namely . Article 56(1)(b)(i), 60(1) and 80.. https://www.lawfareblog.com/military-activities-continental-shelf. 83 Compromis, ¶ 12. 84 UNCLOS, Art.56(1). 85 UNCLOS, Art. 60 (1)(b). 86 UNCLOS, Art. 77(2). 87 UNCLOS, Art. 77(4). 88 UNCLOS, Art. 56(1), 60 and 80. PAGE | 27 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 pollution compounds existing environmental effects caused by the construction.103 Additionally, the disposal of waste water promotes algal growth in the area surrounding the reef, leading to a “permanent shift from a coral-based community to an algal-based community that can have detrimental effects on fisheries and the environment”.104 Prior to the commencement of Dosanda’s dredging and island building in the Spraky Islands, the South Dosanda Sea’s coral reefs were already under heavy stress. And to build these islands, dredgers would gather and deposit sand and gravel on top of the reefs, resulting in irreversible damage to aquatic habitats and ecosystems. Therefore, Dosanda had reason to believe that its construction activities would cause significant harm to the marine environment of the South Dosanda Sea. ii. Dosanda failed to take any steps to assess the impact of construction activities. The requirement to assess environmental impact is conditioned with the phrase “as far as practicable.”105 This allows for States to take measures to assess environmental impact consistent with their capabilities, but does not relieve the State from its duty to assess the impact.106 Given the harmful nature of dredging activities, particularly on sensitive coral reefs, Dosanda should have carried out and EIA prior to initiating these activities on the Sparky Islands. Since Dosanda did not take any measures to assess the probable impact of its construction activities, or mitigate the effect thereof, it has violated Article 206 of UNCLOS. Dosanda failed to meet its obligations under CBD. A fundamental goal of the CBD is to conserve biological diversity through the protection of species and their habitats.107 To promote this goal, Article 14 requires parties, as far as possible and appropriate, to conduct “environmental impact assessments of its proposed projects that are likely to have significant adverse impacts on biological diversity….”108 As shown above, it is a matter of common knowledge dredging activities, like those carried out by Dosanda, are capable of causing significant and irreparable harm to the marine environment. Therefore, by failing to conduct an EIA,, Dosanda has violated Article 14 of CBD. 103 Id., p. 16. 104 Id 105 UNCLOS, supra note 57, at Art. 206. 106 Neil Craik, The Environmental Law of Environmental Impact Assessment 99 (Cambridge University Press 2008) 107 Convention on Biological Diversity, preamble, June 5, 1992, 1760 U.N.T.S. 9 (No. 30619) [hereinafter CBD] 108 Id. at Art. 14. PAGE | 30 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 2. Dosand’s acts are in violation of Customary International Law Dosanda has violated international law on account of two reasons (I)failure to observe duty not to cause transboundary harm; (II) principle of due diligence. a. Dosanda breached its duty of not to cause Transboundary harm As first observed in the Trail Smelter Arbitration,109 customary law recognizes the principle that States should ensure that activities within their territory do not cause significant transboundary harm to another state. This Court has previously recognized that this principle is now part of the corpus of international law relating to the Environment.110 Accordingly, Dosanda is bound by the duty to ensure that its activities do not cause a negative impact on the territory of another state, namely Askia in the present matter, or the High Seas which is a shared resource amongst all states in the world. Dosanda’s construction activities in the South Dosanda Sea have caused significant harm to the coral reefs and other components of the marine environment that falls in the EEZ of Askia, as well as the High Seas. Thus, by causing such harm, Dosanda has breached its duty not to cause transboundary harm. Failure to conduct an EIA is in breach of its duty to act with due diligence. b. Principle of Due Diligence. Due diligence is a long accepted primary state obligation under many international treaties providing for a minimum international standard.111 The principle of due diligence is not an obligation of result, but of attempt.112 EIAs are obligatory if there is a risk of transboundary harm.113 EIA as a national procedure for evaluating the likely impact of a proposed activity on the environment.114 EIAs are fundamental in international environmental law and are an important tool to promote sustainable development. Due diligence obligation is triggered when a State is “aware that vessels flying its flag are engaged in the harvest of species internationally as being threatened with extinction or are inflicting significant damage on rare or fragile ecosystems or the habitat of depleted, threatened or endangered species”.115 109 Trail Smelter (U.S. v. Can.), 3 R. Int’l Arb. Awards 1905 (1941) 110 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 8, 40 (July 8) 111 UNCLOS art 94, Convention on Long-Range Transboundary Air Pollution, art 2, Nov. 13, 1979, 1302 U.N.T.S. 117, and Vienna Convention for the Protection of the Ozone Layer, art 2, Mar. 22, 1985, 1513 U.N.T.S. 293. 112 Birnie at 147. 113 Sands at 657. 114 Convention on Environmental Impact Assessment in a Transboundary Context, Feb. 25, 1991, 1989 U.N.T.S. 309. 115 Nulifer, NUS PAGE | 31 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 In the present case many species found in Askia are endangered and in the Southeast Asia, which the Askia is part of, faces a catastrophic extinction rate of 20% by the end of the 21st century. By duly awared of this fact, Dosanda missed conducting EIA of its construction activites over the relevant areas of the sea. Clearly, Dosanda has breached its duty to act with due diligence under customary international law by failing to conduct an EIA. III. DOSANDA’S MARITIME CLAIMS AND EXERCISE OF SOVEREIGNTY ARE INCONSISTENT WITH THE UNCLOS, IN PARTICULAR, MARITIME CLAIMS THAT DO NOT ADHERE TO ITS RULES ON BASELINES, MARITIME ZONES AND CLASSIFICATION OF FEATURES. The principle of Pacta Sunt Servanda requires parties to a treaty to fulfil the obligations PAGE | 32 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 a. Sparky Islands are not Islands under Article 121 of the Convention Article 121 classifies the feature as an Island, only if it is naturally formed area of land, is surrounded by water and, is above water at high tide.132 Such Islands are entitled to maritime zones under UNCLOS.133 Under the said provision, for a feature to be naturally occurring, it must be have been formed by natural processes, without any human intervention.134 The ICJ Chamber observed in the Gulf of Maine Case, Islands are not the product of human action, but the result of natural phenomena, hence, they shall be taken as they are. 135 Consequently, a low-tide elevation artificially built up with concrete or other materials, such that those structures are above water at high tide does not constitute a naturally formed island.136 In the case of Nicaragua v. Colombia, the ICJ decided that Quitasueño, which was geographically similar to the Sparky Islands, was not an Island under Article 121(1).137 Furthermore, it must also be noted that artificial islands cannot be provided any maritime entitlement under UNCLOS.138 The Sparky Islands are composed of multiple features, including islands, islets and cays and reefs, sometimes grouped in submerged old atolls.139 The north-eastern part of the Sparky Islands comprises of many low islands, sunken reefs, and degraded, sunken atolls, and therefore is considered a Dangerous Ground.140 Dosanda has claimed maritime entitlements based on the Sparky Islands in its entirety, including the Artificial Islands.141Since none of these features meet the requirements laid out in Article 121(1), they are incapable of generating any maritime zones. Therefore, Dosanda’s maritime claims in the South Dosanda Sea are not in accordance with the provisions of UNCLOS. b. Sparky Islands are not entitled to an EEZ and Continental Shelf. Article 121(3) provides that certain islands, namely rocks that cannot sustain human 132 UNCLOS, Art. 121 133 UNCLOS, Art. 121(2). 134Arai, Yuta, The interpretation of the regime of islands: application to Okinotorishima, World Maritime University Dissertations, p.19 (2019). 135 Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v. United States of America), Judgment, I.C.J. Reports 1984, para. 37, (1984). 136 UNCLOS, Art. 60(8). 137Question of the Delimitation of the Continental Shelf between Nicaragua and Colombia beyond 200 Nautical Miles from the Nicaraguan Coast (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2016, p. 100. (2016). 138 UNCLOS, Art. 121(1), Art. 147(e). 139 Compromis, ¶ 7. 140 Compromis, ¶ 8. 141 Compromis, ¶ 10. PAGE | 35 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 habitation or economic life of their own, generate no EEZ or continental shelf entitlements.142 i. Sparky islands are incapable of sustaining human habitation. Human habitation refers to stable community of human beings that is sustainable across time.143 As the negotiating history and the commentary makes clear, the island itself must be capable of sustaining human habitation, without any intervention.144 It is not enough that a State can keep a few people alive on an island by providing the essentials of life from the mainland.145 It follows that the island must be capable of providing the food, fresh water and living space that are essential to keep a community of human beings alive.146 Accordingly, the ICJ refused to give any recognition to Filfla, a small Maltese feature, because it was an uninhabited rock.147 The Sparky Islands contain no arable land, very less amount of permanent drinkable water supply and, no indigenous inhabitants.148 In the absence of availability of arable land and drinking water, there is no possibility of it being able to provide food and sustaining human habitation. Therefore, Sparky Islands cannot be said to be capable of sustaining human habitation. ii. Sparky Islands cannot support an economic life of their own To be entitled to an EEZ and continental shelf, an insular feature must be able to do both, to sustain human habitation and to sustain economic life of its own.149 The feature must have the capacity to develop its own sources of production, distribution or exchange in a way that it can justify and sustain the existence and development of stable human habitation.150 Furthermore, the phrase “of their own” means that a State cannot claim an EEZ and a Continental Shelf by injecting an artificial economic life, based on resources from its other 142 UNCLOS, Art. 121(3). 143 Robert Kolb, “The Interpretation of Article 121, Paragraph 3 of the United Nations Convention on the law of the Sea: Rocks Which Cannot Sustain Human Habitation or Economic Life of Their Own”, 40,French Yearbook of International Law, p. 903, 906, (1994). 144J.M Van Dyke and R.A. Brooks, Uninhabited Islands: Their Impact on the Ownership of the Oceans’ Resources,12, Ocean Development and International Law, No. 3-4, p. 288, (1983). 145Supra note 14, para.491-492, (2016). 146Shorter Oxford English Dictionary, Vol. 2 (5th ed., 2002) 147Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v. Malta), Merits, Judgment, I.C.J. Reports, para. 64,(1985). 148 Compromis, ¶ 7. 149 Supra note 14, para.493. 150 Jose Luis Jesus, “Rocks, New-born Islands, Sea Level Rise, and Maritime Space” in Negotiating for Peace (Jochen A. Frowein, et. al., eds., p. 587-592, (2003). PAGE | 36 MEMORIAL for APPLICANT TENTH AMITY INTERNATIONAL LAW MOOT COURT COMPETITION (AIM), 2020 land territory.151 The Sparky Islands are majorly constituted of coral reefs,152 which were already under heavy stress.153 The northeast part of the Sparky Islands is known as Dangerous Ground and cannot sustain any Economic Activity.154 Moreover, the Sparky Islands have no arable land and very few islands with permanent water supply.155 In such a scenario to conduct any economic activity of its own is not possible. Therefore, since they cannot sustain human inhabitation and an economic life of their own, Sparky Islands cannot generate entitlement to an EEZ or continental shelf, as provided in UNCLOS. 2. Dosanda’s claims are inconsistent with rules relating to Straight Baselines The baseline is defined by the United Nations as the line from which the seaward limits of a State’s territorial sea and certain other maritime zones such as EEZ and Continental Shelves are measured.156 As per Article 7 of UNCLOS, the method of straight baselines may be employed around coasts with a deeply indented coastline or with a fringe of islands in its immediate vicinity..157 However, these conditions do not cover an offshore archipelago within their ambit.158 a. Dosanda does not have a deeply indented and cut into coastline or fringe of Islands in immediate vicinity (Article 7(1)) For a coastline to be considered as deeply indented, there must necessarily be multiple indentations present along the section of coast in question.159 Dosanda does not have a deeply indented or cut into coastline. To fulfil the criterion of fringe of islands it is required that the islands in question meet the criteria under Article 121(1) and the most landward point of each island lies less than 24 miles from the mainland coastline.160 The Sparky Islands do not meet the criteria under Article 121(1) and are at distance of 700 nautical miles from coast of 151 D. W. Bowett, The Legal Regime of Islands in International Law, p. 34, (1979). 152 Compromis, ¶ 7. 153 Compromis, ¶ 12. 154 Compromis, ¶ 8. 155 Compromis, ¶ 7. 156 2 MYRON H. NORDQUIST, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, 1982: A COMMENTARY,( ROSENNE EDS.81, 1993). 157 UNCLOS, Article 40. 158 Supra note 15, para.575. 159 International Law Association, Baselines Under the International Law of The Sea, Final Report, p.7 (2018). 160 Id., at 8. PAGE | 37 MEMORIAL for APPLICANT