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

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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

TABLE OF CONTENTS

Index of Authorities.............................................................................................................................................. Statement of Jurisdiction...................................................................................................................................... Statement of Facts...............................................................................................................................................X Questions Presented..........................................................................................................................................XI Summary of pleadings.......................................................................................................................................X PLEADINGS....................................................................................................................................................... 1 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................................................................................................................................................... 1 A. Dosanda has interfered with Askia’s sovereign rights over the resources at the Sparky Islands.............................................................................................................................................................. 1

1. Askia has sovereign rights over the resources at Sparky islands....................................................................... 1
2. There is no overlap of entitlements.................................................................................................................. 1
3. Dosanda has interfered with Askia’s sovereign rights over fisheries and coral reefs in its EEZ......................................................................................................................................................................... 1
4. Dosanda has deployed oil rig in Askia’s EEZ without its permission.................................................................. 1 B. Dosanda’s has interfered with the traditional fishing rights of Askian fishermen.................................. 2
5. Askia has exclusive fishing rights in its EEZ........................................................................................................ 2
6. Dosanda has deprived the Askian fishermen of their fishing rights in the High Seas........................................ 2
7. Dosanda has deprived the Askian fishermen of their traditional fishing rights in the Archipelagic Waters of Sparky Islands................................................................................................................... 2 C. Dosanda’s claim to historic rights is incompatible with international law............................................. 2
8. Dosanda’s claims are incompatible with UNCLOS............................................................................................. 2
9. Dosanda’s claims are incompatible with CIL...................................................................................................... 2 a) Dosanda’s exercise of authority was not long and continuous..................................................................... 2 b) Dosanda’s acts were opposed by other states.............................................................................................. 2

II. DosandA has constructed artificial islands, installations, and structures at various Reefs

III. DOSANDA’S MARITIME CLAIMS AND EXERCISE OF SOVEREIGNTY ARE

INCONSISTENT WITH THE UNCLOS, IN PARTICULAR, MARITIME CLAIMS

• in the Exclusive Economic Zone of Askia without its authorization..............................................................
• A. DOSANDA’S CLAIMS ARE Incompatible with UNCLOS.....................................................................
  • 1. The rights claimed by Dosanda go beyond authorizations provided in UNCLOS...............................................
    • a. Dosanda does not have the right to exploit the resources in Askia’s EEZ......................................................
    • b. Dosanda’s construction activities in high seas are impermissible.................................................................
    • c. Dosanda activities has failed to provide ‘due regard’ to other coastal states’ rights.....................................
  • 2. The rights claimed by Dosanda infringe with Askia’s rights under UNCLOS......................................................
  • 3. UNCLOS does not recognise ‘historic rights’ or ‘effective occupation’..............................................................
• conducted a formal EIA not assessed the environmental consequences of its activities................................. B. DOSANDA Violated both treaty and customary international law when it neither
  • 1. Dosanda’s obligations under UNCLOS and CBD.................................................................................................
    • a. Dosanda has failed to meet its obligations under UNCLOS...........................................................................
  • 2. Dosand’s acts are in violation of Customary International Law.........................................................................
    • a. Dosanda breached its duty of not to cause Transboundary harm.................................................................
    • b. Principle of Due Diligence..............................................................................................................................
• CLASSIFICATION OF FEATURES............................................................................................................. THAT DO NOT ADHERE TO ITS RULES ON BASELINES, MARITIME ZONES AND
• delimitation...................................................................................................................................................... A. UNCLOS does not recognizes Historic Rights as basis for claims related to maritime
  • 1. Historic Titles cannot be interpreted as Historic Rights under UNCLOS............................................................
• B. Dosanda’s maritime Claims are inconsistent with UNCLOS.....................................................................
  • 1. Inconsistency of Dosanda’s claims with rules relating to classification of features...........................................
    • a. Sparky Islands are not Islands under Article 121 of the Convention..............................................................
    • b. Sparky Islands are not entitled to an EEZ and Continental Shelf...................................................................
  • 2. Dosanda’s claims are inconsistent with rules relating to Straight Baselines.....................................................
    • immediate vicinity (Article 7(1))........................................................................................................................ a. Dosanda does not have a deeply indented and cut into coastline or fringe of Islands in
    • b. The baselines claimed by Dosanda depart from appreciable extent.............................................................

C. Dosanda cannot claim sovereignty in absence of its maritime claim over seabed, subsoil and relevant waters.......................................................................................................................................... 3 Prayer for Relief.................................................................................................................................................. 3

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 M EMORIAL for R ESPONDENT I NDEX OF A UTHORITIES

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 M EMORIAL for R ESPONDENT I NDEX OF A UTHORITIES

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 M EMORIAL for R ESPONDENT I NDEX OF A UTHORITIES

Tullio Treves, Coastal States’ rights in the maritime areas under UNCLOS (2015) .............. 21 Z. Gao and B.B. Jia, The Nine-Dash Line in the South China Sea: History, Status, and Implications , 107, AJIL 99 (2013)....................................................................................... 21 TREATIES AND CONVENTION Convention on the Continental Shelf, 499 U.N.T.S. 312 (29 Apr. 1958)................................ 33 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........................................................................................................................ 17 UN Convention on the Law of the Sea,1833 U.N.T.S. 397. (1982)........................................ 16 United Nations, Charter of the United Nations, Art. 2 Para 3, 24 October 1945, 1 UNTS XVI .............................................................................................................................................. 21 Vienna Convention on the Law of Treaties, Art. 26 (23 May 1969), 1155 U.N.T.S. 332...... 21 U.N. DOCUMENTS International Law Commission, Report of the International Law Commission Covering the Work of its Eighth Session, U.N. Doc. A/3159 (4 July 1956)............................................. 17 Juridical Regime of Historic Waters, Including Historic Bays, Rep. of the Int’l Law Comm’n, 14th sess, Apr. 24–June29,1962,U.N.Doc.A/CN.4/143(1962),........................................... 22 U.N. Conference on the Law of the Sea, 185th Meeting, U.N. Doc. A/CONF.62/PV.185 ( Jan. 1983)............................................................................................................................. 21 United Nations, Historic Bays: Memorandum by the Secretariat of the United Nations, UN Doc. A/CONF.13/1.............................................................................................................. 33 United Nations, Juridical Regime of Historic Waters, Including Historic Bays, U.N. Doc A/CN.4/143.......................................................................................................................... 33 MISCELLANEOUS Clipperton Island (France V. Mexico), Cumulative Digest. Vol. 2 (42 & 43), p. 96– 97, (1932)................................................................................................................................... 33 PAGE | VIII M EMORIAL for R ESPONDENT I NDEX OF A UTHORITIES

International Law Association, Baselines Under the International Law of The Sea, Final Report, p.7 (2018)................................................................................................................ 37 Jan Mayen report, 20 ILM, 1981............................................................................................. 17 R.Lagoni, Cables, Submarine, EPIL I (1992), 516–9.............................................................. 18 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)...................................................................................................................... 25 PAGE | IX M EMORIAL for R ESPONDENT I NDEX OF A UTHORITIES

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 M EMORIAL for R ESPONDENT S TATEMENT OF J URISDICTION

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 km^2. 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 M EMORIAL for R ESPONDENT S TATEMENT OF F ACTS

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 M EMORIAL for R ESPONDENT S TATEMENT OF F ACTS

International Court of Justice under special agreement. PAGE | XIII M EMORIAL for R ESPONDENT S TATEMENT OF F ACTS

QUESTIONS PRESENTED

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 FISHERMEN

AT THE SPARKY ISLANDS.

II. DOSANDA HAS CONSTRUCTED ARTIFICIAL ISLANDS,

INSTALLATIONS, AND STRUCTURES AT VARIOUS REEFS IN THE

EXCLUSIVE ECONOMIC ZONE OF ASKIA WITHOUT ITS

AUTHORIZATION.

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 CLASSIFICATIONS OF FEATURES.

PAGE | XIV

M EMORIAL for R ESPONDENT Q UESTIONS P RESENTED

SUMMARY OF PLEADINGS

I. 1 st^ 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. 2 nd^ 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. 3 rd^ 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 M EMORIAL for R ESPONDENT S UMMARY OF A RGUMENTS

PAGE | XVI

M EMORIAL for R ESPONDENT S UMMARY OF A RGUMENTS

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 rights^4 to exploit the resources found in the Continental Shelf. These rights are inherent^5 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 M EMORIAL for APPLICANT

The Sparky Islands are located at a distance of 180 nautical miles from the baseline of Askia. Therefore, some of its reefs fall within its EEZ.^7 Furthermore, Askia’s right to a Continental Shelf also extend over Sparky Islands. Therefore, Askia has all the sovereign rights in relation to the exploration and exploitation of the mineral and other non-living resources in and around the Sparky Islands.^8

2. There is no overlap of entitlements. In arguendo , Even if it is considered that Dosanda has a valid claim over Sparky Islands, These islands are rocks according to the definition as per Article 121(3) of UNCLOS^9 as they cannot sustain any human and economic life.^10 Hence, they are not entitled to EEZ or Continental Shelf or any other maritime zone benefits.^11 Therefore, there arises no issue of maritime delimitation as there are no overlapping entitlements,^12 Hence, Askia has the exclusive rights over all living and non-living resources in its EEZ. 3. Dosanda has interfered with Askia’s sovereign rights over fisheries and coral reefs in its EEZ. Under UNCLOS, other participating states do not have a right to exploit the living resources belonging to coastal state’s EEZ and Continental Shelf without their the express permission.^13 UNCLOS provides for certain liberties to the other states in coastal state’s EEZ and Continental Shelf but these cannot prevent the coastal state to exercise its sovereign rights over them.^14 Moreover, these liberties are limited to navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses of the sea related to these freedoms.^15 It is emphasized that building of artificial (^7) Compromis, ¶ 7. (^8) UNCLOS, Art. 77(4); UNCLOS, Art. 77(1); International Law Commission, Report of the International Law Commission Covering the Work of its Eighth Session, U.N. Doc. A/3159 (4 July 1956); 2 MYRON H. NORDQUIST, UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 1982: A COMMENTARY, para 56.11(a) (Martinus Nijhoff. 2002), (^9) UNCLOS, Art. 121(3); Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 40, 97 and 565,(March, 2001). (^10) Compromis, ¶ 7. (^11) MALCOLM N. SHAW, INTERNATIONAL LAW 565 (8 ed. 2017); Jan Mayen report, 20 ILM, 1981, pp. 797, 803; 62 ILR, pp. 108, 114; Declaration by Judge Evensen, in the Case Concerning Maritime Delimitation in the Area between Greenland and Jan Mayen (Denmark v. Norway) case, ICJ Reports, 1993, pp. 37, 84–5, (1993). (^12) 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; R. R. Churchill and A. V. Lowe, The Law of the Sea, V chapter 3 (1988). (^13) UNCLOS, Art. 56(1)(a), 58 (^14) South China Sea Arbitration, Philippines v China, Award, PCA Case No 2013-19, I.C.G.J 495, para 698 (2016). (^15) UNCLOS, Art. 58, 78. See R.Lagoni, Cables, Submarine, EPIL I (1992), 516–9. PAGE | 18 M EMORIAL for APPLICANT

islands has led to an increase in Dosanda’s fishing in the surrounding waters, which is putting pressure on fisheries in those areas.^16 Destructive practices of dynamite and cyanide fishing,^17 mainly by Dosanda in the region, are resulting in irreversible damage to aquatic habitats and ecosystems.^18 Moreover, about 70% of Askia’s reefs in the South Dosanda Sea are in a dilapidated and crumbling condition due to excessive and detrimental forms of fishing by Dosanda’s fisherman.^19 From 2016 to 2018, Dosanda has indulged in building artificial islands and military structures on various parts in the South Dosanda Sea.^20 The Sparky Islands are predominantly^21 composed of coral reefs^22 and the island-building process inevitably destroys the reefs^23 which have taken thousands of years to form.^24 Since, Askia has the sovereign right of exploitation in this region, Dosanda has unlawfully interfered with Askia’s sovereignty by carrying out the aforementioned activities in the South Dosanda Sea.

4. Dosanda has deployed oil rig in Askia’s EEZ without its permission. As it has been mentioned above,^25 other states have limited rights in the coastal state’s Continental Shelf and EEZ. However, these do not include extraction of oil or deployment of oil rig, Further, there is a need for prior authorization from the coastal state to undertake any exploitation activities on its Continental Shelf and EEZ.^26 In 2012, Dosanda’s state-owned National Offshore Oil Company (NOOC) deployed a deep- water oil rig into waters within the exclusive economic zone of Askia,^27 which is against the (^16) Compromis, ¶ 13. (^17) Jos S. Pet1& Lida Pet-Soe, Note on cyanide fishing in Indonesia , SPC Live Reef Fish Information Bulletin #

• April 1999 page 21, https://spccfpstore1.blob.core.windows.net/digitallibrary-docs/files/6e/ 6e777a92c9e8929c61af541c994bcd78.pdf?sv=2015-12- 11&sr=b&sig=ArmboffllOT2eft3WPl2Oo18jAb475TNfKVISMWPQVs%3D&se=2021-03- 28T05%3A51%3A54Z&sp=r&rscc=public%2C%20max-age%3D864000%2C%20max-stale %3D86400&rsct=application%2Fpdf&rscd=inline%3B%20filename%3D%22LRF5.pdf% (^18) Compromis, ¶ 13. (^19) Compromis, ¶ 13. (^20) Compromis, ¶ 11. (^21) Compromis, ¶ 7. (^22) Florida Keys National Marine Sanctuary, Corals are animals , NATIONAL OCEAN AND ATMOSPHERIC ADMINISTRATION, https://floridakeys.noaa.gov/corals/coralanimals.html; International Coral Reef Initiative (ICRI), What are Corals , ICRI, https://www.icriforum.org/about-coral-reefs/what-are-corals/ (^23) 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). (^24) Id. , p. 38. (^25) See I A 3 (^26) UNCLOS, Art. 77(2). (^27) Compromis, ¶ 9. PAGE | 19 M EMORIAL for APPLICANT

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 fisheries^30 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 jurisdiction^35 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. (^29) Compromis, ¶ 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 M EMORIAL for APPLICANT

freedom^38 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 community^44 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 M EMORIAL for APPLICANT

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 UNCLOS^54 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.

(^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 M EMORIAL for APPLICANT

2. Dosanda’s claims are incompatible with CIL. In any case, Dosanda cannot claim sovereignty on the basis of historic rights as it has ailed to fulfil the constituent elements for claiming such rights, which are (a) long and continuous exercise of authority and (b) toleration by other States.^56 a) Dosanda’s exercise of authority was not long and continuous. Long and continuous authority over an area is established when acts done by the claimant state are uninterrupted and peaceful.^57 Further, the claim for sovereignty should be long- established.^58 In cases where the courts have accepted such claims, the countries have shown their authority in the region to have been in existence for at least 100 years.^59 Furthermore, military activity by other states in coastal state’s EEZ is construed to be a threat to their peace and security.^60 , and cannot constitute peaceful exercise of authority. In the present case Dosanda’s exercise of authority is not ancient but recent,^61 with many of the coral islands still being under the possession of Askia.^62 Moreover, the activities conducted by Dosanda were largely related to military infrastructure building,^63 thereby failing to meet the requirement of peaceful exercise of authority. Additionally, both the countries have had various clashes in the past,^64 which further substantiates the absence of peaceful exercise of alleged authority by Dosanda’s. Therefore, Dosanda has failed to meet the required standard to show exercise of authority to claim historic rights over Sparky Islands. b) Dosanda’s acts were opposed by other states. The ultimate condition to be fulfilled for maritime areas sovereignty claim is tacit recognition (^56) Juridical Regime of Historic Waters, Including Historic Bays, Rep. of the Int’l Law Comm’n, 14th sess, Apr. 24–June29,1962,U.N.Doc.A/CN.4/143(1962), available at http://legal.un.org/ilc/documentation/english/a_cn4_143.pdf ( Juridical Regime of Historic Waters). (^57) Guo Yuan, On Historic Rights under the Law of the Sea , 2008 CHINA Oceans L. REV. 216 (2008). (^58) Sovereignty and Maritime Delimitation in the Red Sea (Eritrea-Yemen), 449 XXII RIAA 211 (1998). (^59) Rann of Kutch Arbitration (India v. Pakistan) 17 R.I.A.A. 553( 1968 ); Denmark and Canada, Both Their Governments and Their Nationals, Are Contending for Hans Island, an Unhabituated Island in the Arctic , XINHUA NET (11 August, 2005) at http://news.xinhuanet.com/ world/2005-08/11/content_3338136.html. (^60) Boleslaw Adam Boczek, Peacetime military activities in the exclusive economic zone of third countries , 19 ODIL 445-456 (1988). (^61) Compromis, ¶ 9.11,14. (^62) Compromis, ¶ 9. (^63) Compromis,¶ 11. (^64) Compromis, ¶ 9,14. PAGE | 23 M EMORIAL for APPLICANT

or consent of the affected parties^65. There must be absence of protest from the other interested parties^66 to establish such recognition 67 In the instant case, Askia has regularly objected to the island and infrastructure building activities by Dosanda.^68 Additionally, the Southeast Asian Association had also passed a resolution seeking Dosanda to halt its affairs in the South Dosanda Sea.^69 In light of these protests, Dosanda has failed to meet the requirement of acquiescence by other states. Therefore, Dosanda cannot claim historic rights over Sparky Islands. (^65) Supra note 14, para 113 (2013-19). (^66) Grand-Duchy of Luxembourg v. CLT, 91 ILR, 281. (^67) MACGIBBON, CUSTOMARY INTERNATIONAL LAW, 131, and H. S. MCDOUGAL ET AL., STUDIES IN WORLD PUBLIC ORDER, NEW HAVEN, 763–72(1960). (^68) Compromis, ¶ 14,15. (^69) Compromis, ¶ 16. PAGE | 24 M EMORIAL for APPLICANT

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 57^70 and 76^71 , 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 Askia^73 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 M EMORIAL for APPLICANT