TEAM CODE: 618R THE 2010 PHILIP C.

JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION

CASE CONCERNING THE WINDSCALE ISLANDS

IN THE INTERNATIONAL COURT OF JUSTICE LA COUR INTERNATIONALE DE JUSTICE

THE PEACE PALACE, THE HAGUE NETHERLANDS

THE REPUBLIC OF ASPATRIA APPLICANT v. THE KINGDOM OF RYDAL RESPONDENT LA RPUBLIQUE DASPATRIA DEMANDERESSE v. ET LE ROYAUME DE RYDAL DFENDEUR

MEMORIAL FOR THE RESPONDENT -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

TEAM CODE: 618R THE 2010 PHILIP C. JESSUP INTERNATIONAL LAW MOOT COURT COMPETITION CASE CONCERNING THE WINDSCALE ISLANDS

IN THE INTERNATIONAL COURT OF JUSTICE LA COUR INTERNATIONALE DE JUSTICE

THE PEACE PALACE, THE HAGUE NETHERLANDS THE REPUBLIC OF ASPATRIA APPLICANT v. THE KINGDOM OF RYDAL RESPONDENT LA RPUBLIQUE DASPATRIA DEMANDERESSE v. ET LE ROYAUME DE RYDAL DFENDEUR

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

TABLE OF CONTENTS

ABBREVIATIONS......................................................................................................I-III INDEX OF AUTHORITIES........................................................................................IV-X DECISIONS OF INTERNATIONAL TRIBUNALS, ARBITRAL TRIBUNALS AND MUNICIPAL COURTS..........................................................................IV-VI

BOOKS CITED................................................................................................VI,VII BOOKS REFERRED.......................................................................................VII-IX

JOURNALS,ARTICLES AND DIGESTS.............................................................IX CONVENTIONS,TRESTIES,REPORTS AND U.N DOCUMENTS..............IX-X WEB SOURCES.....................................................................................................X

STATEMENT OF JURISDICTION..................................................................................XI QUESTIONS PRESENTED.............................................................................................XII STATEMENT OF FACTS...................................................................................XIII-XVIII SUMMARY OF PLEADINGS..............................................................................XIX-XXI PLEADINGS AND AUTHORITIES..............................................................................1-30 PRAYER........................................................................................................................XXII

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

LIST OF ABBREVIATIONS

1. &: And 2. : Paragraph 3. : Paragraphs 4. A.D.: Anno Domini 5. A.F.D.I: Annual Foreign Direct Investment 6. A.J.I.L.: American Journal of International Law 7. ALEC: A & L Exploration Corporation 8. Art.: Article 9. B.F.S.P.: British and Foreign State Papers 10. BIT: Bilateral Investment Treaty
11.

B.Y.I.L.: British Yearbook of International Law

12. Co.: Company 13. co.: cooperation 14. C. W. R. J.I.L.: Case Western Reserve Journal of International Law 15. e.g.: example 16. GAOR: General Assembly Official Records 17. G.A. Res.: General Assembly resolution 18. H.L.: House of Lords 19. Honble: Honourable 20. H.V.I.L.J: Harvard International Law Journal 21. I.C.S.I.D.: International Centre for Settlement of Investment Disputes -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

II 22. ICESCR: International Covenant on Economic, Social and Cultural Rights 23. I.C.J.: International Court of Justice
24.

I.C.J. Rep.: International Court of Justice Reports

25. I.L.R.: International Law reports 26. ILSA: Islanders Longing for Sovereignty and Autonomy 27. L.N.: League of Nations 28. L.N. Council Doc.: Council of the League of Nations Document 29. L.N.O.J.: League of Nations Official Journal 30. L.R. CP.: Court of Common Pleas Law Reporter 31. Ltd.: Limited 32. MDR Limited: Monte de Rosa Limited
33.

MDR: Monte de Rosa Limited

34. mtg.: Meeting 35. No.: Number 36. Nos.: Numbers 37. NRA: Natural Resources Act 38. p.: page 39. pp.: pages 40. P.C.I.J.: Permanent Court of International Justice 41. Pvt.: Private 42. Rep.: Reports 43. Res.: Resolution
44.

Rev. I.C.J.: Revision International Court of Justice

45. ROCO: Rydalian Oil Company -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

III 46. Ser.: Serial 47. Sess.: Session 48. Supp.: Supplement 49. U.N.: United Nations 50. UNCERD - United Nations Center For Economic Reform and Development 51. U.N. Doc.: United Nations Document 52. v.: versus 53. Vol.: Volume 54. W.C.R.: World Court Reports 55. Y.B.I.L.C: Yearbook of the International Law Commission

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

IV

INDEX OF AUTHORITIES

[DECISIONS OF INTERNATIONAL TRIBUNALS, ARBITRAL TRIBUNALS AND MUNICIPAL COURTS]

1. The Island of Palmas case (United States of America v. The Netherlands) , (1928) 22

A.J.I.L.875..............................................................................1,3,5,12
2. Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Series A/B) No

53................................................................................................................................2
3. Western

Sahara

case,

Advisory

Opinion,

1975

I.C.J,

12.............................................................................................2,1 5,18
4. Island of Pedra Branca case , (Singapore v. Malayasia) I.C.J. Rep. 2008 ,

228...........................................................................................................2,5,7,9,28,29
5. Eastern Greenland Case (Denmark v. Norway), 1933 P.C.I.J. (Series A/B) No

53.............................................................................................................................2,4
6. Clipperton Island case (France v. Mexico), (1932) 26 A.J.I.L. 390..............4,13 7. Frontier

Lands Case ,(Belgium v The Netherlands), I.C.J. Rep. 1959 ,

209.............................................................................................................................5
8. Temple of Preah Vihear case ,I.C.J. Rep. 1962 .6.................................................5,11 9. Sipadan Islands case(Indonesia v Malaysia), I.C.J. Rep. 2002,625...........................5

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

10. British Guiana and Venezuela Boundary Arbitration, (1896) 89 B.F.S.P.

57............................................................................................................................6 V
11. The case of the S. S. Lotus(France v. Turkey), 1927 P.C.I.J. (Ser. A) No. 10. .....8 12. Decision regarding Delimitation of the Border between the State of Eritrea and the

Federal Democratic Republic of Ethiopia, 13 April 2002 , p.28,...............................7

13. Sipadan Islands case ( Indonesia v Malaysia), I.C.J. Rep. 2002, 625.....................5,8 14. Nottebohm case( Liechtenstein v. Guatemala), I.C.J. Rep. 1955 ,4.........................13 15. The Namibia Case, (1971) I.C.J. Rep, 16...............................................................14 16.

Tata Celular v Union of India, (1994) 6 SCC 651..................................................22

17. Spencer v Hardinge (1870) 5 L.R. CP, 561..............................................................22 18. East Timor case I.C.J. Rep.1995,.90 at 102.............................................................23 19.

Republic of Zaire v Democratic Republic of Congo I.C.J Rep. 2007,...........23

20. Republic of Guinea v Democratic Republic of Congo, I.C.J. Rep. 2007, 77...........23 21. Pickersgill v Rodger,(1876) 5 Ch.D., 163................................................................25 22. Codrington v Codrington, (1875) 7 H.L. 854, 861..................................................25 23.

Mihaly International Corporation v. Democratic Socialist Republic of Srilanka I.C.S.I.D. case No- ARB/002/2 , 24.........................................................................26

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

VI

24. Elettronica sicula S.p.A. (ELSI) case, (United States of America v. Italy) I.C.J.

Rep.15..27,28,30
25. Asylum Judgment (Colombia v. Peru), I.C.J. Rep. 1950, 284.................................28 26. Barcelona Traction case (Belgium v. Spain) I.C.J. Rep. 1970 .46...................27,28

[BOOKS CITED]
1.

2 L. OPPENHEIM ,OPPENHEIMS INTERNATIONAL LAW, ( SIR ROBERT JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION)-...3,14,19

2.

The Cyprus case quoted in D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS TEXT AND MATERIALS , (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).........................................................................................................................12

3.

D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS TEXT AND MATERIALS , (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).................................14

4.

K. C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, ( EASTERN BOOK COMPANY 2006 EDITION)......15

5.

MATTHEW C.

R. CRAVEN, THE INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS- A PERSPECTIVE OF ITS DEVELOPMENT, ( CLARENDON PRESS OXFORD 1995).17

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

6. TRAYNER, TRAYNERS LATIN MAXIMS, 11 (UNIVERSAL PUBLICATIONS,

4TH EDITION, 2005)...........................................................................................20,24

7. ROGER LOUIS, ENDS OF BRITISH IMPERIALISM: SCRAMBLE FOR AFRICA,

SUEZ & DECOLONIZATION, (OXFORD PUBLICATIONS)..........21

8. RICHARD

VII

STONE, MODERN LAW OF CONTRACT, (ROTLEDGE &

CAVENDISH,7TH EDITION).................................................................................21
9. G. H. TRIETEL ,OUTLINE OF LAW OF CONTRACT , 9 (OXFORD

PUBLICATION).....................................................................................................22

[BOOKS REFERRED]
1. THE FUTURE OF INTERNATIONAL ECONOMIC LAW,(WILLIAM J DAVEY

AND JOHN JACKSON OXFORD UNIVERSITY PRESS 2008)

2. BASIC DOCUMENTS IN INTERNATIONAL LAW,( IAN BROWNLIE OXFORD

UNIVERSITY PRESS, 6TH EDITION 2009,)

3. DR. H. O. AGARWAL, A CONCISE BOOK ON INTERNATIONAL ALW AND

HUMAN RIGHTS, (CENTRAL LAW PUBLICATIONS 1ST EDITION 2007)

4. J.L. BRIERLY, THE LAW OF NATIONS AN INTRODUCTION TO THE

INTERNATIONAL LAW OF PEACE, (SIR HUMPHREY WADLOCK, OXFORD UNIVERSITY PRESS 2008 1ST EDITION)

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

5. K.C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, (EASTERN BOOK

COMPANY 2006 EDITION)

6. GERNOT BIEHLER, PROCEDURES IN INTERNATIONAL LAW, (SPRINGLER

2008 EDITION)

VIII

7. CARL SCHMITT, THE LEVIATHAN IN THE STATE THEORY OF THOMAS

HOBBES, (THE UNIVERSITY OF CHICAGO PRESS, 2008)

8. INTERNATIONAL LAW AND POLITICS, (SHERLEY V. SCOTT,

VIVA

BOOKS, 1ST EDITION 2008)

9. MARK WESTON JANIS, INTERNATIONAL LAW, (ASPEN PUBLISHERS, 5TH

EDITION 2008)
10. DR. H. O. AGARWAL, INTERNATIONAL LAW AND HUMAN RIGHTS, (15TH

EDITION, CENTRAL LAW PUBLICATIONS, ALLAHBAD)

11. P. K. DAS, INTERNATIONAL LAW DOCUMENTS, (UNIVERSAL LAW

PUBLISHING COMPANY PRIVATE LIMITED, 2003 EDITION)

12. ASHWINIE

KUMAR

BANSAL,

ARBITRATION

AGREEMENTS

AND

AWARDS, (UNIVERSAL LAW PUBLISHING COMPANY 2ND EDITION)

13. RULE OF LAW IN A FREE SOCIETY , (N.R. MADHAVA MENON OXFORD

UNIVERSITY PRESS 2008)

14. A.R. BISWAS, INTERNATIONAL LAW, (KAMAL LAW HOUSE CALCUTTA

1ST EDITION 1999) -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

15. WILFRED BOLEWSKI, DIPLOMACY AND INTERNATIONAL LAW IN

GLOBALIZED RELATIONS, (SPRINGLER)

16. HUMAN RIGHTS A COMPILATION OF INTERNATIONAL INSTRUMENTS,

(1 BOOKWELL 2002)

IX

17. HUMAN RIGHTS A COMPILATION OF INTERNATIONAL INSTRUMENTS,

(2 BOOKWELL 2002)

[JOURNALS AND ARTICLES]

1. 1950 B.Y.B.I.L., Vol-XXII, p. 332............................................................................5 2. Report on the Falklands Islands case: See - Anon 1982 Rev. I.C.J., No.26, p.26;

Franck (1983) 77 A.J.I.L. 109....................................................................................6

3. A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:

Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev. 43 (2008)....................................................................................16,18
4. Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An Evaluation

of Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J. 67 .............................................................................................................................27

5. Draft Articles on Diplomatic Protection with commentaries, Art. 12, (2006) II

Y.B.I.L.C.,Part Two.................................................................................................29

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

[CONVENTIONS, TREATISIES, REPORTS AND U.N. DOCUMENTS]

1. Treaty of Washington, 1871; British Gyanna Arbitration, 1899...............................6

X 2. United Nations Charter..............................................................................12,14,18,26

3. United Nations World Conference on Human Rights, Part 1, 2 (Vienna Declaration

and Programme of Action) June 1993..................................................17

4. Casement to Lansdowne, telegram, 15/Sept/1903 FO 10/805.................................21 5. Vienna Convention on the Law of Treaties,Art. 2, 1969.........................................25 6. I.C.S.I.D. case No- ARB/002/2 , 24......................................................................26 7. Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An Evaluation

of Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J. 67 .............................................................................................................................27 8. UNITED NATION CENTRE FOR ECONOMIC DEVELOPMENT

DOCUMENT ...27

[WEB SOURCES]

http://www.pca-cpa.org/upload/files/EEBC-3.pdf...........................................7 http://en.wikipedia.org/wiki/Cocos_(Keeling)_Islands..................................10 XI

STATEMENT OF JURISDICTION

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

THE REPUBLIC OF ASPATRIA AND THE KINGDOM OF RYDAL SUBMIT THE PRESENT DISPUTE TO THE INTERNATIONAL COURT OF JUSTICE BY SPECIAL AGREEMENT, DATED SEPTEMBER 10, 2010, PURSUANT TO ARTICLE 40(1) OF THE COURTS STATUTE. THE PARTIES HAVE AGREED TO THE CONTENTS OF THE COMPROMIS SUBMITTED AS A PART OF THE SPECIAL AGREEMENT. IN ACCORDANCE WITH ARTICLE 36(1) OF THE STATUTE OF THE COURT, EACH PARTY SHALL ACCEPT THE JUDGMENT OF THIS COURT AS FINAL AND BINDING AND SHALL EXECUTE IT IN GOOD FAITH IN ITS ENTIRETY.

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XII

QUESTIONS PRESENTED

1.

WHETHER RYDAL MAY TAKE STEPS GIVING EFFECT TO THE INDEPENDENCE OF THE WINDSCALE ISLANDS OR HAS TO CEDE

ADMINISTRATION OVER THE ISLANDS TO ASPATRIA.

2.

WHETHER RYDALS REJECTION OF MDRS BID CONSTITUTED A VIOLATION OF THE ASPATRIA-RYDAL BIT.

3.

WHETHER RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO PROTECT THE ASSETS OF ALEC.

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XIII

STATEMENT OF FACTS

[ENTITIES INVOLVED] ASPATRIA - THE APPLICANT, FORMER COLONY OF PLUMBLAND

RYDAL - THE RESPONDENT

PLUMBLAND - THE FORMER COLONIAL PARENT STATE OF ASPATRIA

WINDSCALE ISLANDS - THE DISPUTED ARCHIPELAGIC TERRITORY

ROCO - MULTINATIONAL COMPANY INCORPORATED IN RYDAL

ALEC - A SUBSIDARY OF ROCO INCORPORATED IN ASPATRIA

MDR LTD. - ASPATRIAN INCORPORATION [EVENTS LEADING TO THE DISPUTE] FACTUAL HISTORY: The present day developed coastal country Aspatria was a colony of the kingdom of Plumbland from 1610 to 1820. Rydal, a constitutional monarchy has had established several colonies throughout the world. Windscale Islands, the disputed territory, are an -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XIV archipelago in the Southern Hemisphere in the Eden Ocean, closest to the Republic of Aspatria. 1-4 On 6th of December 1777, one Captain Geoffrey Parrish under the commission of the King of Rydal discovered the Islands, as recorded in his ships log. A flag of Rydal and a stone carved with a declaration asserting the Rydalian Kings sovereignty was left behind on the Islands. Early next year, the viceroyalty of Aspatria, under the authority of Plumbland sent a naval ship commanded by Lieutenant Manuel Ricoy to settle and claim the Islands. After 20 years of settlement and establishment of the fort, inhabitants were called back to the mainland Aspatria. A flag of Plumbland and a notice declaring Aspatrias title to the Islands by first occupation was left. Historians believe of the islands being used by seafarers, pirates, slave-ships etc. during this period. Later, nautical charts depicting the islands as the territory of Plumbland were produced in Plumbland and Aspatria as well, ascribing the name Windscale Islands. 5-9 On 6th September 1813, Rydalian HMS Applethwaite, commanded by Admiral George Aikton was wrecked on one of the smaller Islands. The members established a temporary settlement named St. Bees. Rydal assumed HMS Applethwaite to be lost. In1815, a slave ship called Unthank landed on St. Bees who swore loyalty to the Rydalian Queen and the members were offered a refuge by Admiral Aikton. 10-13 In June 1817, Grizdale commanded by Commander Javier Crook who was sent by the Aspatrian Viceroyalty to establish a penal colony, was confronted by Aikton with his armed sailors which Crook protested as he left .In the mid 1818, King Piero protested through a diplomatic note containing its claim over the Islands by first occupation, sent to

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XV the Queen of Rydal. Rydal acknowledged of them being unaware of the survival of HMS Applethwaite and rejected all Plumblands Claim. 14-16 Aspatria declared its independence on 2nd November 1820, and the constitution of the new Republic of Aspatria provided that the Islands were a part of the same. Meanwhile, Plumbland ceded the Islands to Rydal under the Treaty of Corby signed on 22nd September 1821. 17-21 In 1826, President Diaz sent a force for seizure of the Islands. Next year, the Rydalian Queen received the Aspatrian Ambassador formally and recognized the Aspatrian Independence. In the subsequent meeting with Rydalian Foreign Minister Smith, Rydal rejected the devolution of the Aspatrian viceroyalty by the principle of uti possidetis juris. 22-25 In 1841, Plumbland recognised Aspatrias sovereignty and independence acknowledging Aspatrias continued claim to the Islands. In 1845, Aspatria established a permanent diplomatic mission in Rydal. The Rydalian Foreign Ministry fervently dismissed all the routinely reiterated Aspatrian claims to the Islands. 26, 27 The Islands though economically dependent on Rydal, remained poor by economic standards. The Islanders were given the status Rydalian Dependent Territory citizen and not full Rydalian citizenship. Where as, since inception Aspatrian law has treated persons born on the Islands as citizens of Aspatria. 31, 32 In 1947, the Islands were given constitution by Rydal confirming Rydalian sovereignty over Islands and its resources. 1n 1949, Aspatrian Ambassador referred the dispute to the

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XVI Secretary General of U.N. In 1962, before the Special Committee, the Rydalian Prime Minister appeared and stated that Rydal respected the will of the Islanders. The delegation routinely expressed its desire that the Islands remain a part of Rydal. Ten states located near Aspatria and eight other states regularly supported Aspatria's claim to the Islands before the U.N.S.C. and the General Assembly. 30-38 Owing to the increase of trade, the countries in 1985 entered in the Aspatria-Rydal BIT. ROCO owns 80% shares of ALEC. NRA passed in Aspatria restricted Aspatrian companies to act inconsistent with government license natural resources including exploitation of energy resources making the same a criminal offence. In 1993, Aspatria granted ALEC a license to exploit oil deposits in Aspatria. 39-41 In 1997, oil was discovered within EEZ of the Islands. Rydal contracted with ROCO to explore and map the oil reserves and as per the report submitted by ROCO the Islands could become important oil producers. Owing to this discovery independence movement in Islands was energised by ILSA. Aspatria too rejuvenated its claims over the Islands. 42-44 MDR Limited owned by Monte de Rosa in 2003, gained an exclusive license to extract the oil in the Windscale Islands from the Aspatrian government under NRA. The Prime Minister of Rydal protested at the decision citing absence of Aspatrian sovereignty over the islands. But subsequently he and MDR Ltd. took no steps to extract oil. 45-48 In December 2006, a scheme of Rydalian government to invite and evaluate bids for the rights to exploit the oil reserves within the EEZ of the Islands by the Rydalian companies was put forth, which was protested by Aspatrian authorities. Bids were only made by -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XVII ROCO & MDR Limited. ROCO in its bid listed the assets of ALEC. MDR Limiteds bid being more beneficial was endorsed by majority of 20 to 15 which ILSA suspected. On consultation with Prime Minister Abbott, Governor withheld her signature. On a call of re-consideration ROCO bid was approved & Governor promptly signed the recommendation. The ILSA members accepted the bid but with a concern over the highhanded manner in which Governor treated the issue defeating the cause of selfdetermination and called for independence of Islanders. Monte de Rosa denounced the decision as discriminatory and violative of the BIT. 49-55 On 16 November 2007, the Public Prosecutor of Aspatria filed criminal charges against ALEC under the NRA for materially participating in ROCO bid circumventing the Aspatrian license, along with an administrative petition, for seizing its assets within Aspatria to maintain status quo as warranted under Aspatrian criminal code, which was granted. ALECs petition for cancellation of the order was denied, with no further appeal being possible. Counsel for ALEC complained of slow pace of justice alleging permanent seizure. On a protest of Prime Minister Abbott Aspatria denied the protection of assets of ALEC by the BIT. Meanwhile, Monte de Rosas challenge and appeals in Rydalian courts failed, on which he invoked his rights under the BIT. 56-61 Controversy of rejection of MDRs bid led to non-violent protests across the Islands calling for a referendum on independence, leading to a plebiscite in December 2008, wherein 76% of the Islanders voted for independence. President Lavin condemned the plebiscite as illegal. 62-65

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XVIII Prime Minister Abott considering all issues, proposed for negotiation which President Lavin accepted, and the two States concluded the present Special Agreement. 66-68

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XIX

SUMMARY OF PLEADINGS

1. RYDAL MAY TAKE STEPS GIVING EFFECT TO THE INDEPENDENCE OF THE WINDSCALE ISLANDS. A. SOVEREIGNTY OVER THE ISLANDS BELONGS TO RYDAL. 1.A.1 Rydal has an apparent title to territorial sovereignty of the Windscale Islands by virtue of first discovery. 1.A.2 Aspatria had inherited the territory of the islands from Plumbland after its independence. The territory was an inchoate title which was not qualified for occupation. 1.A.3 Aspatrias claim on the Islands on ground of uti possidetis juris principle is not a valid claim. 1.A.4 Rydal had successfully accomplished its title as a titre de soverain over the Islands. 1.A.5 The Windscale Islands i.e the Islanders never intended to be a part of Aspatria.

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XX

B.

THE ISLANDERS ARE ENTITLED TO INDEPENDENCE AS AN EXERCISE OF THEIR RIGHT TO SELF-DETERMINATION. 1.B.1 The Islanders have a legal right to self -determination . 1.B.2 The claim by Rydal for providing the right of self-determination to the Islanders is maintainable. 1.B.3 The application of right to self-determination subdues the interest of territorial and political unity of Aspatria.

2.

RYDALS REJECTION OF MDRS BID DOESNOT CONSTITUTE A VIOLATION OF THE ASPATRIA-RYDAL BIT. 2.1 Rydal has the authority to reject the MDR bid 2.1.1 Monte de Rosas intentions are clear owing to Actus exteriora indicant interiora secreta 2.1.2 Prospective Threat to Public and National Interest

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

XXI
3.

RYDAL HAS A STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO PROTECT THE ASSETS OF ALEC AND THE SEIZURE OF SUCH ASSETS WAS A VIOLATION OF THE ASPATRIA-RYDAL BIT. 3.1 Nemo plus juris ad alium transfere potest quam ipse habet 3.2 Seizure of ALECs assets violates the Aspatria-Rydal BIT. 3.2.1 The International Law gives a binding recognition to the BITs 3.3 The Right of Diplomatic Protection. 3.4 Local remedies need not be exhausted owing to exception to the rule

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

PLEADINGS AND AUTHORITIES

1.

RYDAL IS PERMITTED UNDER INTERNATIONAL LAW TO TAKE STEPS GIVING EFFECT TO INDEPENDENCE FOR THE WINDSCALE ISLANDS.

1.A. Sovereignty over the Islands belongs to Rydal. It is respectfully submitted that, the Kingdom of Rydal is having the sovereignty over the Islands of Windscale archipelago. Whether it be the question of Conduct, Title, Intention, Manifestation, Overt Act or Sovereignty all the ingredients1 are fulfilled by the Respondent in order to establish its valid claim over the Windscale archipalego. Lets understand it ex facie-: 1.A.1. Rydal has an apparent title to territorial sovereignty of the Windscale Islands by virtue of first discovery. When Captain Geoffrey Parrish, the commander of the Wansfell, set out on a naturalist discovery under a commission of the King of Rydal, he recorded in his ships log - we discovered .. not appearing on our charts. This means that the Islands were a fresh discovery by the people of Kingdom of Rydal. The discovery was not just that the Captain
1

U.S.A v. Netherlands, (1928) 22 A.J.I.L 867-912. [ Hereinafter Island of Palmas case ] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

2 Geoffrey just sighted the Island and claimed it as part of Rydal but as from the facts itself it is evident that he took a short leave on one of the larger Islands and left behind the flag of Rydal and stone carved with a declaration asserting the sovereignty of King Andrew of Rydal. Now this establishes an undisputed sovereignty of the Kingdom of Rydal over the said archipelago because at the time when the discovery of the Windscale Islands was made by Captain Geoffrey, the Islands were uninhabited and terra nullius and therefore the sovereignty is established through the doctrine of occupation2. Establishment of a flag on a part of land is also the symbol of

sovereignty over that land, of the country to whom such flag belongs.3 This also point towards the element of intention. Hereby leaving behind the flag and the carved stone the subjects of the Kingdom of Rydal want to make it crystal clear that the said archipelago belonged to the Kingdom of Rydal. It is necessary for the occupation over the territory that there should be intention to establish sovereignty over the territory concerned.4 1. A.2 The territory was an inchoate title which was not qualified for occupation Now by completing the above mentioned acts the Kingdom of Rydal successfully 3 established an inchoate title5. As the discovery was made in the 18th -19th century then it must be governed by the law prevailing at that time. At that time it was settled that though discovery does not create a definitive title of sovereignty, but only an
2

Western Sahara Case, I.C.J. Rep. 1975,p.12 I.C.J. Rep. 2008 228.[ Hereinafter Island of Pedra Branca case ] Denmark v. Norway, 1933 P.C.I.J. A/B No.53(3 W.C.R. 151), [ Hereinafter Eastern

Greenland Case] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

inchoate title , such a title exists, without external manifestation, but such title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered.6 Now here the words used are without external manifestation and reasonable period. The Respondents humbly submits that as mentioned above there was an external manifestation of sovereignty i.e. the flag of Kingdom of Rydal, was left behind and also a stone revealing the sovereignty of Rydal over the Islands. And as far as the concept of reasonable period is concerned then it will be clear from the further facts that the Kingdom of Rydal had also committed such acts which completely entitles the Kingdom of Rydal to assert the sovereignty over the Islands i.e. acts showing manifestation of sovereignty. Now in the year 1778 the Salkeld came across the Islands. And it is also averred that Lieutanant Manual Ricoy established a Fort and settlement named Salkeld on one of the Island. It is submitted that such settlement can not be said to be discovery of a territory terra nullius. As mentioned before the Island was already discovered and was under the 4

sovereignty of the Kingdom of Rydal. Though Commander Parrish landed on a bigger Island and not on the Island on which the Salkeld landed but still the entire

2 L. OPPENHEIM ,OPPENHEIMS INTERNATIONAL LAW, 690 ( SIR ROBERT

JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION )

6

Island of Palmas Case, supra note 1. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Archipelago belonged to the Kingdom of Rydal. Because it is not necessary that display of sovereignty must be present at all the points and parts of the land.7 Also in the Island of Palmas case8 it was held that : In the exercise of territorial sovereignty there are necessarily gaps, intermittence in time and discontinuity in space.. the fact that a State cannot prove its display of sovereignty as regards such portion of territory cannot forth with be interpreted as showing that the sovereignty is inexistent. Moreover it will be seen that within the period of reasonable time the Kingdom of Rydal had successfully established its apparent manifestation of sovereignty over the entire archipelago. Thus the settlement of Salkeld was an illegal possession of a territory belonging to Rydal by an alien nation. Moreover as far as the establishment of the Fort is concerned then it can not be considered as a sovereign act under the International Law. A mere administrative act done by a State official in a particular area can not deprive the legal title of another State. 9

Eastern Greenland case, supra note 4. (1928) 22 A.J.I.L 867-912. Belgium v The Netherlands, I.C.J. Rep. 1959 p.209 [ Hereinafter Frontier Lands Case ] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

5 In the case of Cambodia v Thailand10 the Honble Court also held that mere

possession of an area by some other sovereign nation for discharging certain administrative or other function can not disturb the title of the State concerned. It may be averred by the Applicant that for 20 years the settlement was there on the Salkeld and it existed undisturbed. For this, the Respondent will like to advance that the Applicant can not take the advantage of the doctrine of acquisitive prescription. Acquisitive Prescription is the means by which, under International Law legal recognition is given to the right of a State to exercise sovereignty over land or sea territory in cases where that State has, in fact, exercised its authority in a continuous uninterrupted, and peaceful manner over the area concerned for a sufficient period of time, provided that all other interested and affected States (in the case of land territory the previous possessor) have acquiesced in this exercise of authority. 11 Thus in order to take advantage of this doctrine the other party must have the notice of the same unless the contrary is proved.12 But here the Kingdom of Rydal was unaware of an adverse possession of the Windscale 6

1 10

I.C.J. Rep. 1962 p.6 [ Hereinafter Temple of Preah Vihear case ]

11

1950 B.Y.B.I.L., Vol-XXII, p. 332 See - Island of Pedra Branca case, supra note 3; Island of Palmas case, supra note 1;

12

Indonesia v Malaysia, I.C.J. Rep. 2002, p.625 [ Hereinafter Sipadan Islands case]; Report on the Falklands Islands case: See - Anon 1982 Rev. I.C.J., No.26, p.26; Franck (1983) 77 A.J.I.L. 109. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Salkeld Island by the Petitioners and therefore no question of acquiescence can arise. On the contra pacem the defense of the principle of acquisitive prescription is available to the Respondent because between 1880 to 1890 lodged no complaints concerning the Islands and made no complaints to assert the control over them. And thus the Islands for all this continuous period of 30 years remained under the sovereignty of Rydal undisturbed and unopposed by any nation. If for continuous 20 years a sovereign exercises control over a territory unopposed and no action is taken by the other nation claiming that territory then the latter loses his claim over it.13 1.A.3 Aspatrias claim on the Islands on ground of uti possidetis juris principle is not a valid claim. As far as the discovery is concerned then it is evident from the facts itself that the historians say that Islands were used by pirates, slave-ships, and other seafarers during the period Ricoy and his men were in Salkeld. This means that the said Islands were not uninhabitated at that time and thus the doctrine of uti possidentis has no relevance for the petitioners. And moreover the Respondents were unaware of any foreign possession of the Islands at that time. The works of Historians are also significant in the International law. In the case of Pedra Branca/Palau Buteh14 the Court took in to consideration the works of Grotious in determining the extent of the Sultan of Johors

1 13

See- Treaty of Washington, 1871; British Gyanna Arbitration, 1899, [ Hereinafter Venezuela Boundary Dispute case ]
14

I.C.J. Rep. 2008 228 -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

territories, while adjudicating the dispute pertaining to the island of Pedra Branca between Singapore and Malaysia.. 1.A.4 Rydal had successfully accomplished its title as a titre de soverain over the Islands. On 9th September 1813, a naval ship of Rydal, HMS Applethwaite, under the command of Admiral George Aikton, was wrecked on one of the smaller Islands in the archipelago. Here as per the facts of the case the Admiral was made aware that the said Islands belonged to Rydal as his nautical charts indicated the same. The Charts and Maps occupy a significant place in International Law.15 The significant development took place when in may 1815 the Unthank, a slave ship from the State of Sodor, drifted in to the harbour of St. Bees. Admiral Aikton rescued all the 26 crew members and 150 slaves men, women and children to the shore. When the crew of the Unthank were informed that they had landed on the Rydalian territory then that crew swore loyalty to Queen Constance of Rydal. Moreover the Admiral also declared the slaves as free. Now this whole incident involves two important acts. Firstly act of Recognition and secondly act a titre de soverain. When the crew of the vessel Sodor swore allegiance to Queen Constance then this means that the subjects of a foreign nation recognized the existence of the sovereignty of Rydal over the archipelago. A vessel of a foreign land is considered as part of that foreign land.16
15

See- Decision regarding Delimitation of the Border between the State of Eritrea and the

Federal Democratic Republic of Ethiopia, 13 April 2002 , p.28 , 3.28. at http://www.pcacpa.org/upload/files/EEBC-3.pdf

16

France v. Turkey,1927 P.C.I.J. (Ser. A) No. 10. [ Hereinafter The case of the S. S. Lotus] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Moreover the Admiral declared all the slaves as free, because slavery was abolished in Rydal. Thus this declaration of the Admiral Aikton extended the law of Rydalian Kingdom to the Islands also. Thus the Respondent exercised the act a titre de sovereign on the archipelago. Governance through law is the apparent manifestation of the sovereignty.17 The words uttered by Admiral Aikton are also important. While informing the crew of the Unthank the Admiral uttered the words like they had landed on Rydalian territory. Here the Admiral did not used the words like you have landed on the Island belonging to Rydal but on the contra pacem he used the word territory. This very well establishes that the sovereignty of Rydal was not only exercised to any particular Island but the entire Archipelago. Subsequently by 1816, the Admiral Aikton and his men explored many Islands in the archipelago. Now this act leaves no doubt that the entire Island was under the control of Admiral Aikton, the subject of Rydal. He also discovered the abandoned Fort of Salkeld. Though the Flag of Plumbland was there but nobody found any notice left by Ricoy. This means that even though if we assume that the island of Salkeld belonged to Plumbland but no notice was found and the fort was empty. Thus in good faith the Admiral also exercised the sovereignty over the Island of Salkeld. 9

The apparent manifestation of sovereignty over the archipelago took place when the Admiral Aikton did not allow The Grizdale to anchor on the cost of the Island of Salkeld. Admiral Aikton informed Commander Crook that he and his men must leave
17

Indonesia v Malaysia, I.C.J. Rep. 2002, p.625 [ Hereinafter Sipadan Islands case ] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

at once or be subject to arrest and Commander Crook departed. This act of Admiral Aikton is to be seen as conduct a titre de soverain. In the Island of Pedra Branca case18, when the Singapore officials refused to allow the surveyors of a Malaysian ship to land on the disputed Island of Palau Buteh, the Honble Court held that this Singaporean conduct is to be seen as conduct a titre de soverain. The conduct of Singapore in giving permissions for this visits does give significant support to Singapores claim to sovereignty over Pedra Branca/Palau Buteh. 10 1.A.5 The Windscale Islands i.e the Islanders never intended to be a part of Aspatria. 10

It is evident from the facts itself that the Windscale Islands i.e the Islanders never intended to be a part of Aspatria because from the very inception they were treated to be the Islands belonging to the Plumbland. Aspatria was a Viceroyalty of Plumbland and as the Islands were nearer to Aspatria therefore they were just administered by the Viceroy appointed by Plumbland in Aspatria on behalf of Plumbland and not governed. The latter was performed by the Kingdom of Plumbland. It is analogous to the situation when aden protectorate was administered from the British colony of India. In 1937 it was brought under the direct administration of the British Crown in UK. The COCO Islands or Keeling Islands were the British Archipelagic colonial Islands. Initially they were administered through Singapore. When the Japanese troops conquered Singapore in 1942 during the Second World War the administration of the said Islands was transferred to Ceylon, another British colony. And when in 1946
1 18

Island of Pedra Branca case, supra note 3, 238, 239. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

when Singapore was liberated from Japanese occupancy the said Island was again brought under the administration of Singapore.19 In 1955 when Singapore was declared independent the said Islands were directly brought under the control of United Kingdom. Now here it must be noted that neither Aden was claimed as Indias inherent part when it was separated from the Indian administration and neither the COCO Islands can be said to belong to Japan when it occupied Singapore in 1942 and neither Singapore can claim the COCO Islands when it got independence in 1955 because such above mentioned Islands and protectorate were just administered from the above mentioned respected colonies on behalf of their colonial master. And due to the reason that such colonies were closer to the said Islands. The test to find out whether a said territory belongs to a particular country or not then it must be shown that by transferring the said territory to some other country the transfer will amount to a cession. But here in the above mentioned case when the administration of aden was transferred from India to UK or COCO Islands administration was transferred from Singapore to UK, then such transfer was not 11 considered as a cession. Because such Islands were never an integral part of that particular colony administering it. A mere exercise of administrative function on a particular territory do not amount to establishment of sovereignty.20 Now as far as the competency of Plumbland to recognize the Islands of Windscale belonging to Rydal is concerned then the Respondent would like to submit that as
19

http://en.wikipedia.org/wiki/Cocos_(Keeling)_Islands

2 20

Temple of Preah Vihar case, supra note 10, p.146. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

argued before the Windscale Islands were never intended to be a part of Aspatria and when the coup by General Diaz was brought, it is implied that the administration of the said Islands would revert back to the Plumbland as the said Islands were always administered on behalf of the Plumbland though it was just a claim. It is also evident from the example of Singapores 1942 Japanese occupation. Therefore Plumbland is competent enough to recognize the said Islands as belonging to Rydal through the Treaty of Great Corby. Moreover Aspatria has neither any de jure or de facto sovereignty over the Windscale Islands. The only ground on which they are claiming the sovereignty over the said Islands is that of the claim which has devolved upon them as a result of State succession. But as mentioned above the said claim is also not devolved upon them and it has very well remained with the Kingdom of Plumbland. The other thing is that the only ground left with Aspatria is of contiguity. The said Windscale Islands are only 600 miles from Aspatria and are much far away from 12 Rydal. Therefore the respondents would like to advance that even this defence is of no avail to the petitioners as it is a well settled position of law that a nation can not claim a portion of a territory on the ground of Principle of Contiguity.21 Moreover it is also humbly submitted that the country of Aspatria is not having any right to claim the Islands of Windscale Archipelago. The Islands population only consists of the Rydalian immigrants and the offsprings produced by the marriages taken place between the inhabitants of HMS Applethwaite, HMS Braithwaite and The Unthank. There are no Aspatrian inhabitants who are permanently settled on the
21

Island of Palmas case, supra note 1. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Islands. The Austria was claiming South Tryol from Italy because of the GermanAustrian people living in majority there. The Island of Cyprus is claimed by Greece and Turkey because of the Greek and Turkish populations are living in majority on that Islands.22 Thus as per this illustrations it is clear that Aspatrias claim over the Islands is totally unwarranted. The succession of Rydalian Governors of the Islands exercised the control over the entire archipelago. In 1903 the King of Rydal directed to establish a Consultative Assembly, In 1945 Rydal joined the united nations as an original member and by designating the Islands as non-self governing it fulfilled its obligations under Article 73 of the Charter23 by regularly transmitting reports on this Islands to the Secretary 13 General. This all things indicates that Rydal has fulfilled its all obligations under the International law and has exercised all functions a titre de sovereign over the Islands and even the United Nations has recognized the Rydalian sovereignty over the Islands. Moreover the Islands population also accepted the Rydalian Sovereignty over them. They have a right to accept the Rydalian sovereignty because they are the citizens who have acquired the citizenship of the said Islands by way of birth as well as naturalisation.24

22

The Cyprus case quoted in D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS TEXT

AND MATERIALS , 920 (SWEET & MAXWELL, LONDON, 2ND EDITION 2001).
23

Article 73 of the United Nations Charter. Liechtenstein v. Guatemala, I.C.J. Rep. 1955 p.4 [ Hereinafter Nottebohm case ] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

24

Moreover in the case of France v Mexico25 the Arbitrator awarded the Island of Clipperton to the France on the basis of first discovery. Mexico claimed the Clipperton Islands on the principle of uti possidetis as successor of Spain. Though Spain exercised some control over the disputed Island for some time when France was not in occupation of the island after the discovery but still the contention of France was upheld because the France never had animus of abandoning the Islands.

1.B.The Islanders are entitled to independence as an exercise of their right to selfdetermination. 1.B.1 The Islanders have a legal right to self -determination . It is humbly submitted that the Islanders have a legal right to self-determination.

14 Rydal appraises the scope and the current status of the concept of self-determination to which Aspatria is completely negligent. The right to self-determination of peoples is a fundamental principle of International Law26. The United Nations Charter27 also recognizes the principle of equal rights and
25

(1932) 26 A.J.I.L. 390 [ Hereinafter Clipperton Island case]

26

D. J. HARRIS ,INTERNATIONAL HUMAN RIGHTS TEXT AND MATERIALS , 76

(SWEET & MAXWELL, LONDON, 2ND EDITION 2001) (Hereinafter Harris).

27

Article 1. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

self-determination but the subsequent development of International Law28 has been such that self-determination is now recognized as a right under customary International Law29. Other subsequent developments in International Law in regard to non-self governing territories as enshrined in the Charter of the United Nations, made the principle of selfdetermination applicable to such territories30. A specific chapter has been included in the Charter of the United Nations on non-self governing territories 31.In the present 15 world order, the right of self-determination has assumed a subject of serious concern to all freedom-loving societies. Conversely, Aspatria purports an indifferent attitude towards this strategic human right that the Islanders are entitled to. Article 1 of the U.N. Charter common to the two International Covenants on Human Rights, adopted by the U.N. General Assembly and opened for signature, ratification and accession on 16 December, 1966, which States as follows: All peoples have the right of self- determination. By virtue of that right, they freely determine their political status and freely pursue their

28

2 L. OPPENHEIM ,OPPENHEIMS INTERNATIONAL LAW, 714 ( SIR ROBERT

JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION )

29

See for example, the Namibia Case, (1971) I.C.J. Rep. 16. Ibid. at p. 31. See also, the Western Sahara Case (1975) I.C.J. Rep. 12 at 16.

30

31

K. C. JOSHI, INTERNATIONAL LAW AND HUMAN RIGHTS, 62 ( EASTERN COMPANY 2006 EDITION)
-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

BOOK

economic, social and cultural development.32 1.B.2 The claim by Rydal for providing the right of self-determination to the Islanders is maintainable. The Respondent asserts the meaning and relevance of the concept of selfdetermination in modern International Law, which Aspatria clearly fails to realise. In accordance with the Declaration of the United Nations General Assembly33 on Principles of International Law Concerning Friendly Relations and Co-operation among States in line with the Charter of the United Nations, it is also the duty of States to promote the right to self-determination of peoples. But the implementation of the principle of self-determination requires every State to promote, through joint and separate action, universal respect for, and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations Organisation34.

32

The International Covenant on Economic, Social and Cultural Rights and the

International Covenant on Civil and Political Rights both ratified by Nigeria in July 1993
33

G.A Res. 2625 (XXV), 25th Sess., (Oct. 24, 1970) A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:

34

Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev. 43 (2008) -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

16

In the East Timor case,35 the Honble Court recognised its erga omnis character. In the view of some writers, the principle of self-determination is also ius cogens36. According to the tripartite typology, all human rights entail three forms of State obligation, viz. The obligations to respect, protect, and fulfil 37. Rydal has consistently supported the process of fulfilment of its abovementioned obligations38, thereby refuting a likely allegation that Rydal did not have bonafide intention to grant independence to the Islanders. 17

1.B.3 The application of right to self-determination subdues the interest of territorial and political unity of Aspatria. The Respondent would like to draw the kind attention towards the unforeseen consequences of the denial of the right to self-determination merely on the basis of securing the territorial integrity. Again, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, the World Congress on Human
35

I.C.J. Rep. 1995, p.90 at 102 See Frank, (1976) 70 A.J.I.L 694 quoted in Harris, supra note 25,p.76 Mr Eide, Right to Food at the Committees General Discussion , 3rd Sess. U.N Doc.

36

37

E/C.12/1989/SR.20.Cf also Eide A., Right to Adequate Food as a Human Right (1989) quoted in MATTHEW C. R. CRAVEN, THE INTERNATIONAL COVENANT ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS- A PERSPECTIVE OF ITS DEVELOPMENT, 109 ( CLARENDON PRESS OXFORD 1995)
38

Compromis, 35. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Rights recognised39 the right of people to take any legitimate action, in accordance with the Charter of the United Nations, to realize their inalienable right of selfdetermination. The Congress considered the denial of the right of self- determination as a violation of human rights and underlines the importance of the effective realization of this right. Despite the above stated efforts of the United Nations Organisation, there are still incidents of war, violence and civil disobedience in various parts of the world due to different forms of struggles by peoples against activities of governments perceived to undermine their right of self-determination. Such violent incidents have led to colossal loss of lives and property almost in the nature of the disaster experienced during the

18 Second World War and which led to the establishment of the United Nations Organisation whose fundamental objective is to . save the succeeding generation from the scorch of war which twice in our life-time has brought untold sorrow to mankind 40 In order to sustain the efforts of the United Nations Organisation in pursuing this laudable objective, the right of peoples in all countries to self-determination must not be toiled with. The issue of self determination was prominent in the Western Sahara case41. All parties supported the right of the people of Western Sahara to self to self-determination, but appeared to apply differing and
39

United Nations World Conference on Human Rights, Part 1, 2 (Vienna Declaration

and Programme of Action) June 1993.

40

See the Preamble to the United Nations Charter. I.C.J Rep. (1975) Pleadings C R, 75/8.11 . -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

41

self-serving contents to the concept42. The General Assembly... declares that Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the Purposes and Principles of the of the Charter of the United Nations... It is clear that the injection of a legal principle of self-determination into the law about acquisition and loss of territorial sovereignty is both important and innovative. The 19 infusion of the concept of rights of a people into this legal scheme is therefore a change which is more fundamental than it first appears43. Hence there is a strong reason to accept the Rydalian claim to grant self-determination to the Islanders, against the evident Aspatrian objections.

42

A.A. Idowu , Revisiting the Right to Self-Determination in Modern International Law:

Implications for African States , 6 European Journal of Social Sciences , Number 4 Rev. 47 (2008).
43

Flory, (1957) 3 A.F.D.I., 73, 76 ; 2

L. OPPENHEIM ,OPPENHEIMS

INTERNATIONAL LAW, 715 ( SIR ROBERT JENNINGS AND SIR ARTHUR WATTS, PEARSON EDUCATION, 9TH EDITION ) -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

20 2. RYDALS REJECTION OF THE MDR BID DID NOT VIOLATE THE ASPATRIA RYDAL BID.

It is respectfully submitted that the Rydals rejection of the MDR bid did not violate the Aspatria-Rydal BID. 2.1 Rydal has the authority to reject the MDR bid Not only this the Rydalian authority has a right to reject the bid on the following grounds2.1.1 Monte de Rosas intentions are clear owing to Actus exteriora indicant interiora secreta

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Actus exteriora indicant interiora secreta

44

external acts reveals the internal secret

purpose or acts indicate the intention. The main purpose of the Treaty between the Rydal and Aspatria was as the respected Prime Minister said was to focus upon the matters of more significant mutual benefit, it is under good faith that Rydal has entered in to Reciprocal Investment Treaty with Aspatria despite of Aspatrias nonsensical claims on Windscale Islands. Thus this particular contract was to strengthen commercial relations between the two countries. But as it is evident from the facts itself that the bidder Mont de Rosa in a press interview said that Islands belong to Aspatria. Its my patriotic 21

responsibility to oil is extracted by Aspatrian people45. Thus these words indicate the secret animus of the Mont de Rosa that the purpose of his participating in the bidding of Rydalian oil Programme is to assert and strengthen the Aspatrian claims on the Windscale Islands instead of intending of behaving in the professional manner. In the 1950s the persons affiliated with the Anglo-Iranian Oil Company conspired with the local Iranian favourable business communities like the Rashidian family, to topple down the Musaddiq Government.46 Another example is of Roger Casement.47 The British Government failed to take concessions with respect to Congo in the Berlin

44

TRAYNER, TRAYNERS LATIN MAXIMS, 11 (UNIVERSAL PUBLICATIONS, 4TH

EDITION, 2005).
45

Compromis, 46. Wm. ROGER LOUIS, ENDS OF BRITISH IMPERIALISM: SCRAMBLE FOR

46

AFRICA, SUEZ & DECOLONIZATION, 737-9 (OXFORD PUBLICATIONS).

47

Casement to Lansdowne, telegram, 15/Sept/1903 FO 10/805. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Conference of 1885. Hence the Roger Casement, an Irish Patriot was sent in Congo as British Consul in the year 1903.He gathered evidences which alleged that there is maladministration in Congo as a result of which in the year 1909 the Belgian Parliament took the control of Congo from King Leopold. The Respondent will like to advance that, it is a general principle of commercial law that the authority who is making invitation for bidding, is fully entitled to reject any of the bids made , and will not be obliged to accept the proposal of the highest bidder.48 22 In the case of Spencer v Hardinge49 the Honble Court held that The person to whom a tender is made is normally free to accept or reject it as he pleases. Thus there is no obligation in accepting the bids from the persons to whom the tenders are made, because it is just an invitation to bid and not an offer.50 Thus on the basis of this decisions it is respectfully submitted that the national namely Mont de Rosa can not ask for the acceptance of his bid as a matter of right, even though he was the highest bidder. 2.1.2 Prospective Threat to Public and National Interest It is respectfully submitted that in the cases concerning the Government contracts the respective State Government may reject or accept any proposal or bids if it is
48

RICHARD STONE, MODERN LAW OF CONTRACT, 50 (ROTLEDGE &

CAVENDISH,7TH EDITION).
49

(1870) 5 L.R. CP., 561. See- G. H. TRIETEL ,OUTLINE OF LAW OF CONTRACT , 9 (OXFORD

50

PUBLICATION).
-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

23 consistent with the public policies and national interest of the country. There is no obligation on it to accept any of bids.51 Because the government is the sole guardian of the territories and natural resources in the country and it is the best judge to decide as to how this natural resources concentrated in the territory must be utilized for the general benefit of the peoples.52 In the case of Republic of Zaire v Democratic Republic of Congo53 also the principle of public interest was recognized by the I.C.J. Moreover it is a general principle of law that if no rights of the national of a State are violated, then the State can in no circumstances have a standing to exercise diplomatic protection.54 Thus in this way rejection of the MDR bid does not violate the Aspatrian-Rydal BIT. And Aspatria has no standing to afford diplomatic protection to Mont De Rosa.

51

Tata Celular v Union of India, (1994) 6 SCC 651. Reliance Industries Ltd v. Reliance Natural Resources Ltd. I.C.J Rep. 2007. Republic of Guinea v Democratic Republic of Congo, I.C.J. Rep. 2007, 77. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

52

53

54

24 3. RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO

PROTECT THE ASSETS OF A RYDALIAN ENTERPRISE IN ASPATRIA AND THE SEIZURE OF SUCH ASSETS WAS A VIOLATION OF THE ASPATRIA-RYDAL BIT.

3.1 Nemo plus juris ad alium transfere potest quam ipse habet That the grant of license to Mont de Rosa by the Aspatrian Government55 was totally non-sensical and a nullity. It is covered by the maxim of Nemo plus juris ad alium transfere potest quam ipse habet56 which means that no one can transfer to another a greater right than he has himself. Here in this case as per the before-mentioned arguments it is clear that Kingdom of Rydal exercises all the de jure and de facto sovereignty over the Islands of Windscale and therefore the license granted by the Government of Rydal to Mont De Rosa relating to the extraction of oil in the Windscale Islands is illegal and worthless. This is also evident from the fact that even

55

Compromis 47.

56

TRAYNER, TRAYNERS LATIN MAXIMS, 379 (UNIVERSAL PUBLICATIONS, 4TH

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

EDITION, 2005).

after the grant of the so called license the MDR took no steps to extract oil from the Islands.57 25

On the one hand the President of Aspatria and its Ambassador publicly protested the bidding process, but still do not stop the MDR to bid and on the other hand when the bid gets rejected, the Aspatria claims that the Rydals rejection of MDRs bid constituted a violation of the Aspatria- Rydal bid. Thus the Aspatria is blowing the hot and cold at the same time. The Respondent will like to advance that the Aspatrian authorities by claiming that Rydals rejection of MDRs bid constituted a violation of the AspatrianRydal BIT has accepted the sovereignty of Rydal over the Windscale Islands. Because in the BIT itself it is stated that for investments by investors of one party in the territory of the other party 58. It had accepted the Rydalian authority competent enough to accept bids and grant licenses in order to extract oil from the sea-bed of the Windscale Islands. A person who want to take benefit of an instrument must also bear the burden.59 He can not approbate and reprobate at the same time.60 Now the Aspatria is estopped from denying the sovereignty of Rydal over the Windscale Islands. The claim of the Respondent further gets strengthens by the conduct of the Aspatrian National Mont De Rosa. When his bid gets rejected he filed the suits in the municipal
57

Compromis 48.

5 58

See Vienna Convention on the Law of Treaties,Art. 2, 1969.

59

Pickersgill v Rodger,(1876) 5 Ch.D., 163. Codrington v Codrington, (1875) 7 H.L. 854, 861. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

60

courts of the Rydal in the Islands. This indicates that he has also admitted the sovereign jurisdiction of the Kingdom of Rydal over the Islands of Windscale.. 26 Thus by this above mentioned points it is clear that the License to extract the oil from the sea beds of the Windscale Islands can only be granted by the Kingdom of Rydal and the granting of license by the Aspatria to Mont de Rosa was an act without authority and title. Thus it is covered by the doctrine of Nemo det quo non habet which means that one can not transfer what he himself has not got. This was also recognized by the ICSID in the case of Mihaly International Corporation v. Democratic Socialist Republic of Srilanka.61 The tribunal in this case said that no one can pass a better title than what he really has. 3.2 Seizure of ALECs assets violates the Aspatria-Rydal BIT. The basis upon which the assets of ALEC were seized by the Aspatria was, that it participated in the ROCO bid and violated the NRA by circumventing the Aspatrian license which was given to MDR. The respondents will like to submit that as per the above mentioned arguments it is very well made cleared that the said license granted by Aspatria to the MDR was void and worthless, thus the reason which Aspatria has shown to cease the ALECs Assets becomes unwarranted. ROCO is holding 80% of the shares in the ALEC62. Thus by seizing all the assets of ALEC including vessels, drilling equipment, and cash, ALEC will not be able to do business which will affect
61

I.C.S.I.D. case No- ARB/002/2 , 24. Compromis, 40. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

62

the shareholders right to receive proper profits and dividends. The BIT between Rydal-Aspatria also contemplates the investment which includes shares, stock and 27 other forms of equity participation in an enterprise.63 Thus by ceasing the ALECs assets Aspatria has violated Article IV of the BIT by non-observance of the concept of isonomia (equality in treatment). 3.2.1 The International Law gives a binding recognition to the BITs Eventhough if Aspatria contends that the act of ALEC in participating in the ROCO bid was inconsistent with the NRA then the respondent will like to advance that though the said act is void under municipal law of Aspatria but still ALEC is the subsidiary of ROCO and thus it can participate in the bid by virtue of the BIT treaty signed between Aspatria and Rydal, because what is unlawful in the municipal law may be wholly innocent of violation of a treaty provision.64 The main purpose of the BIT is that without a BIT, international investors are forced to rely on host country law alone for protection, which entails a variety of risks to their investments. 65 In ratifying a BIT, a country makes the treaty a part of its legal system, thus it becomes its duty to implement it. It is due to this reason that the BITs are given a binding recognition by of the UN Charter of Economic Rights and Duties66.
63

Article 3. United States of America v Italy ,I.C.J. Rep. 1989, p. 15, 72. [ Hereinafter Elettronica

64

sicula S.p.A. (ELSI) case]

65

Jeswald W. Salacuse and Nicholas P. Sullivan ,Do BITS really work? : An Evaluation of

Bilateral Agreement Treaties and their Grand Bargain, 46 H.V.I.L.J. 67 .

66

Article 2, U.N.C.E.R.D. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

28 It can also be not said that the acquisition of the Assets of ALEC by the Aspatrian authorities were reasonable. The said acquisition was not justifiable because there was no emergency situation existing which could justify the said acquisition. In the case of U.S.A v Italy67 the Honble I.C.J justified the ceasing of the Italian incorporated company namely ELSI which was a subsidiary of the US companies, because the job of 800 workers was at stake. But here in this case no such situation is there. The said acquisition of the ALECs assets by the Aspatrian authorities is arbitrary. It lacks due process and rule of law.68 And thus violates Article V of the BIT. 3.3 The Right of Diplomatic Protection. It is the fundamental principle of the International law that whereby any violations of the rights of a foreign national is also a violation of the rights of his State or nationality.69 Thus in this way the Rydal is having a right and standing to invoke the Aspatrian Rydal BIT. Because in Belgium v. Spain
70

it was held that to the extent that an

internationally wrongful act of a State causes direct injury to the rights of shareholders as such , as distinct from those of the corporation itself, the State of nationality of any

67

Elettronica sicula S.p.A. (ELSI) case, supra note 64, 72. Colombia v. Peru, I.C.J. Rep. 1950, p.284. [ Hereinafter Asylum Judgment ] Temple of Preah Vihear case, supra note 10. I.C.J. Rep. 1970, 46. [ Hereinafter Barcelona Traction case ] -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

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69

70

29 such shareholders is entitled to exercise diplomatic protection in respect of its nationals.71 3.4 Whether local remedies must be exhausted. It is very well accepted principle of the Customary International Law that local remedies must be exhausted before international proceedings may be instituted. The rule has been generally observed in cases in which a State has adopted the cause of its national whose rights are claimed to have been disregarded in another State in violation of International Law. 72 It is respectfully submitted that the counsel for ALEC, promptly filed a petition with the Supreme Court of Aspatria, consistent with the Aspatrian law, asking that the order be cancelled. As it is evident from the facts of the case that the supreme court denied the ALECs petition in ALEC v Langdale Administrative Court, no further appeal lies. Moreover as far as the criminal case i.e. prosecutor v ALEC is concerned then though it is pending but still it is very popular that the criminal cases in Aspatria takes years to conclude, thus resulting in tremendous loss to the shareholders of the ALEC.73 30

The Article 15, Draft Articles on Diplomatic Protection 74 provide for Exceptions to the local remedies rule. It is provided that:
71

Draft Articles on Diplomatic Protection with commentaries, Art. 12, (2006) II

Y.B.I.L.C.,Part Two.
72

Temple of Preah Vihear case, supra note 10, 42. Compromis, 59. Article 15, supra note 71. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

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74

Local remedies do not need to be exhausted where: . (b) There is undue delay in the remedial process which is attributable to the State alleged to be responsible; In these circumstances also the State can go for International settlement on behalf of its aggrieved nationals if the delay which will be caused in getting the relief by way of local remedies will result in to the irreparable loss to its national.75

XXII

PRAYER AND CONCLUSION

75

Elettronica sicula S.p.A. (ELSI) case, supra note 64 , 110. -MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition

Wherefore in the lights of the questions presented, arguments advanced, it is humbly prayed that this Honble Court be pleased to adjudge and declare that : A) THAT SOVEREIGNTY OF THE ISLANDS BELONGS TO RYDAL. B) THAT THE ISLANDERS ARE ENTITLED TO INDEPENDENCE BASED ON THE PRINCIPLE OF SELF-DETERMINATION. C) THAT RYDALS REJECTION OF MDRS BID DID NOT CONSTITUTE A VIOLATION OF THE ASPATRIA-RYDAL BIT. D) THAT RYDAL HAS STANDING TO INVOKE THE ASPATRIA-RYDAL BIT TO PROTECT THE ASSETS OF ALEC. AND PASS ANY SUCH ORDER AS IT MAY DEEM FIT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. And pass any such order as it may deem fit in the interest of justice, equity and good conscience.

PLACE: THE HAGUE DATE:

S/D-----------------------Respectfully Submitted Agents for the Republic of Rydal

-MEMORIAL FOR THE RESPONDENTThe 2010 Philip C. Jessup International Law Moot Court Competition