The State of Amalea

vs.
The Republic of Ritania

Paolo Go
Zenia Lou Guzman
Jade Roxanne Lo
Steven Charles Ruiz

Submitted by:
2I
Atty. Bruce Rivera

Memorial for Respondent

January 2015

SUMMARY OF PLEADINGS

The Republic of Ritania has no obligation to compensate the State of Amalea for any loss
or damage allegedly caused by the 2009 landslide. Ritania, with respect to the Excelsior Island
project, was able to comply with its obligation under international law and the terms of the
Malachi Gap Treaty.

Milo Bellezzas salvage of the Cargast is unlawful, and the cargo and artifacts recovered
from the wreck properly belong to Ritania, thus conferring to it the right to protect them.

In relation to the Rosehill collision, the Amalean Navys pursuit of Oscar de Luz into
Ritanias EEZ and his subsequent arrest were illegal. Furthermore, Amalea was without
jurisdiction to try Luz in connection with the Rosehill collision, and must return him to Ritania
immediately.

PLEADINGS

I.

RITANIAS CONDUCT WITH RESPECT TO THE EXCELSIOR ISLAND

PROJECT COMPLIED IN ALL RESPECTS WITH ITS OBLIGATIONS UNDER
INTERNATIONAL LAW AND THE TERMS OF THE MALACHI GAP TREATY,
AND RITANIA HAS NO OBLIGATION TO COMPENSATE AMALEA FOR ANY
LOSS OR DAMAGE ALLEGEDLY CAUSED BY THE 2009 LANDSLIDE.

A. RITANIAS CONDUCT COMPLIED WITH INTERNATIONAL LAW.

States are only responsible for the conduct of entities acting on its behalf. In the
instant case, as Ritania did not empower, control or adopt and acknowledge the Excelsior
Project, the conduct of EIGP cannot be attributed to her.
In addition, Ritania did not cause transboundary harm, pursuant to Articles 60 visavis 194(2) LOSC and the sic utere tuo principle1, no transboundary harm to Amaleas
environment or property arose from the Excelsior Project2, as three elements of a.)
causation, b.) severity, and c.) movement are not cumulatively met. Additionally, Ritania
did not fail to prevent harm or infringe Amaleas rights under the Malachi Gap Treaty and
LOSC.
Ritanias acts of conducting an EIA and negotiating through agreements show that
it has substantially complied with the obligation of not causing harm to other states. It
was incumbent upon them to be transparent in the construction of Excelsior Island as it
would affect other states such as Amalea. This obligation was deemed fulfilled when they
conducted an EIA. In the process of conducting an EIA, the State is required to inform
and notify all other interested parties. Also, the bilateral negotiations initiated by Ritania
have the effect of notifying Amelia of their intentions and objectives. This is also in
relation to the principle of prior consultation which is a natural result of good
neighborliness. International law depends largely on the cooperation of different states
1 Principle 2, Rio Declaration on Environment and Development, 14 June 1992.
2 Art. 5(4), Convention on the Continental Shelf, 29 April 1958.

and this cooperation cannot exist if states remain hostile with each other. Hence,
international law strives to promote a healthy and friendly relationship among states and
one of the customs recognized is that it is a states duty to notify other states of an activity
to be done especially if it should have significant effects. By giving notice to the neighbor
states, it becomes their duty to initiate proper actions to protect their interests. Moreover,
the states affected must take the necessary precautions to minimize the damage.
Justice and fair play require reparation whenever damage has been suffered by an
injured party. In international law, the concept of reparation is enunciated in the Chorzow
Factory Case3 where the Permanent Court of International Justice said that, It is a
principle of the international law. That any breach of an engagement involves an
obligation to make reparation The Court has already said that reparation is the
indispensable complement of a failure to apply a convention, and there is no necessity for
this to be stated in the convention itself. In the present case, there is no showing that a
convention or any international law has been violated therefore there in no reason to
compel Ritania to compensate for Amaleas losses.

B. CONSEQUENTLY, RITANIA HAS NO DUTY TO MAKE REPARATION

Having complied with international law, Ritania is not obliged to compensate

Amalea.
Granting that compensation is in order, Ritania is precluded from any obligation
to compensate, since Ritania was not the main polluter. The polluter pays principle, a
CIL norm4 renders EIGP as the party liable for damages.
II.

MILO BELLEZZAS SALVAGE OF THE CARGAST IS UNLAWFUL, AND THE

CARGO AND ARTIFACTS RECOVERED FROM THE WRECK PROPERLY
BELONG TO RITANIA, WHICH HAS THE RIGHT TO PROTECT THEM.

3 Factory at Chorzow (Germ. v. Pol.), 1927 P.C.I.J. (ser. A) No. 9 (July 26)
4 Rio, supra n., 13, Principle 16

A. AMALEA'S SALVAGE OF THE CARGAST WAS UNLAWFUL AND THE RITANIAN

NAVY'S PATROL ON THE SITE OF THE CARGAST IS JUSTIFIED
a. Amaleas salvage is unlawful
Although Ritania does not discount the fact that the wreck of the ship Cargast is within the
exclusive economic zone of Amalea, the salvage of the ship containing the cultural treasures of
the Ritania is unlawful in so far as International Salvage Laws are concerned. Notwithstanding
this fact, Amalea is obliged to return the treasures and artifacts found in the shipwreck as this is
part of the cultural heritage of Ritania.
The salvage by Amalea is unlawful. It is necessary that for salvage to apply that the ship
in question must be subject to a marine peril. 5 Although marine peril does not end when the ship
has already sunk which actually subjects the wreck to salvage 6, a ship that reached a point of
stability underwater and has become part of the environment is no longer subject to the marine
peril. Thus, salvage law cannot be applied. 7 As it was held in the case in the landmark case of
Klein, it was decided that at some point the wreck becomes a part of the marine environment and
is no longer in peril.8 Clearly, Cargast having been underwater since 1510 or for more than 500
years reached stasis. It has become a part of the marine environment and is already a cultural
resource.
b. Ritanian Navys patrol on the site of the Cargast is justified
Ritania did not violate Amaleas economic rights over its exclusive economic zone (EEZ) when
it sent Navy patrols in the area where the Cargast was situated as it is not a part of the natural

5 International Law on Salvage, Article 1

6 Varmer, Ole. 2014. Underwater Cultural Heritage Law Study. U.S. Dept. of the Interior, Bureau

of Ocean Energy Management, Headquarters, Herndon, VA. OCS Study BOEM 2014-005.
7 Supra
8 Klein v. Unident., Wrecked & Aban. Sailing Vessel, 568 F. Supp. 1562 - Dist. Court, SD

Florida 1983

resources found in the EEZ9. Only when there is a deprivation of Amaleas right to access to its
resources can it invoke a violation of its EEZ. The sending of the navy patrol did not incite any
violence or threat to Amalea as evidenced by the success of the mission of Milo Belleza.
B. THE CARGO AND ARTIFACTS RECOVERED FROM THE WRECK PROPERLY
BELONG TO RITANIA
a. Ritania has rights over the property under the Principle of Cultural Property
Nationalism

Under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed
Conflict, cultural property is defined as any movable or immovable property of great importance
to the cultural heritage of every people. In the 1970 UNESCO Convention, cultural property is
defined as property, which on religious and secular grounds, specifically designated by each state
as being of importance for archaeology, prehistory, history, literature, arts and science, including
but not limited to rare collections, antiques, historical monuments, religious objects and other
items of importance to the culture or identity of a group of people. With the definitions
provided, it can be established that the precious stones, gold and other coinage, and bejeweled
artifacts contained in the Cargast are considered cultural property of Ritania.
Consequently under the principle of cultural property, it must be observed that cultural
property belongs to the nation in which it originates. 10 Writers and researchers supporting this
school of thought provide that sovereignty as well as possession over the property remain with
its state of origin. They argued that, for one, cultural property is an expression of a civilization
existing within a state. Its claim stands firm based on identification and national pride.
Furthermore, under the aforementioned principle, such artifacts serve as the foundation of
cultural definition and expression essential to the idea of shared identity and community. 11
b. Amalea's claim under the Law of Finds is without merit
9 United Nations Convention on the Law of the Sea, Article 56
10 John Henry Merryman, Cultural Property Internationalism,12 INT'L J. CULTURAL PROP.

11, 32 (2005).

Under such law, the right of the true owner over the lost or abandoned property is
superior to that of the finder's right to possession. The law of finds applies only when the
following requisites are present, the express and public abandonment of the property by its
owner and where items are recovered from a shipwreck no owner comes forward to claim
them.12 It must be noted that there is an absence of the abandonment on the part of Ritania.
Ritania never abandoned said property, it was stolen by the Amalean pirate, Baldric Verdigris.
The original owner does not forfeit his property unless it has been abandoned 13 or where all
reasonable hope and expectation of recovery have ceased14. Furthermore, Ritania express
assertion of its right and ownership over the property the very moment it was found contravenes
the second requisite of said law.
c. Restitution of Stolen Cultural Object
Another justification of the right of Ritania to the ownership of the objects found in the Cargast
is the express provision of the UNIDROIT Convention on Stolen or Illegally Exported Cultural
Objects. Under Article 3, it expressly states that the possessor of any cultural object which has
been stolen shall return it. For instance, the Manuscripts stolen by Napoleon from The Vatican
during the Thirty Years War were returned 15. With this, the return of said property to Ritania is
called for.

11 Anglin, Raechel (2008). "The World Heritage List: Bridging the Cultural Property

Nationalism-Internationalism Divide," Yale Journal of Law & the Humanities: Vol. 20: Iss. 2,
Article 4.
12 Wilder, Mark A. (2000). "Application of Salvage Law and the Law of Finds to Sunken

Shipwreck Discoveries". Defense Counsel Journal: Vol. 67, Iss.1, Article 6 available at www.rmsrepublic.com/reference/Volume67No1Article6.pdf
13 United States v. Smiley, 27 F. Cas. 1832 (No. 16317) (N.D. Cal. 1864) (per Field, J.)
14 Eads v. Braselton, 12 Ark. 499, 508-509 (1861)
15 Lyndel V. Prott & Patrick J. OKeefe, Law and the Cultural Heritage (Abingdon: Professional

Books Ltd., 1984) at 33

III.

THE AMALEAN NAVYS PURSUIT OF OSCAR DE LUZ INTO RITANIAS EEZ,

AND HIS SUBSEQUENT ARREST WERE ILLEGAL.

It is a well-established and recognized principle in international law that a state has

exclusive jurisdiction over its vessels on high seas. 16 Although there are certain exceptions such
as hot pursuit and visit, in the instant case, Amalea has unlawfully and unjustifiably exercised
them against Daedalus.

A. THE HOT PURSUIT OF DAEDALUS BY AMALEAN NAVY IS ILLEGAL

To be able to justify the act of hot pursuit, there must be reasonable ground to believe
that violation of domestic law exists.17. In this line of argument, Amalea justifies its pursuit of
Daedalus based on Luzs unfounded crime of piracy jure gentium, which argument must
necessarily fail. As held in the case of US v. Said 18, only cases of robbery, boarding of, and
control-seizing of a ship would fulfill the high threshold of illegal act amounting to piracy jure
gentium. Consequently, the stealing of Daedalus and the events that followed did not meet the
threshold of such illegal acts.

B. AMALEAS ARREST OF LUZ WAS UNLAWFUL WITH UNREASONABLE AND

EXCESSIVE USE OF FORCE
With respect to the subsequent arrest of Luz, principles of international law dictate that
each state exercises sovereignty over its territory, whether that pertains to land, water or airspace.

16 HSC, supra n.93, Art. 6(1); LOSC, supra n.15, Art.92 (1)
17 LOSC, supra n.15, Art. 111(1)
18 2010 WL 3893761 (ED Va 2010) at 32

As provided in Article 2 of the United Nations Convention on the Law of the Sea: The
sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the
case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the
territorial sea. This sovereignty extends to the air space over the territorial sea as well as to its
bed and subsoil. The sovereignty over the territorial sea is exercised subject to this Convention
and to other rules of international law. As such, this same sovereignty means that Ritania has
exclusive authority to exercise police power within its territorial jurisdiction.

When Captain Walter Haddock arrested Luz within the territorial waters of Ritania, the
arrest itself became an encroachment upon Ritanias jurisdiction over the person of Luz. The
territoriality principle is the most common basis of jurisdiction and is widely regarded as a
manifestation of state sovereignty. At its simplest, territoriality principle denotes that a state has
jurisdiction over the conduct that occurs within territorial borders. Therefore, there was a clear
breach against Ritanias sovereign rights.

An arrest by one state in the territory of another state is lawful only when it has been
consented to by the latter. Without consent, supremacy of an individuals right to liberty, as
embedded in most existing human rights instruments, prevails. 19
Furthermore, Ritanias inaction in not pursuing Daedalus did not waive its claim to
enforce jurisdiction, since silence cannot be construed as unawareness or inability to pursue.
In any event, Amalea could only invoke necessity to justify her unlawful pursuit and
arrest if these were the only means to safeguard her essential interest without contributing to
the situation. However, as they were only to protect international sealane and her EEZ without
meeting the test of public emergency, Amaleas essential interest was not threatened.

19 Art. 9, International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS

171 [ICCPR]; Art.5, Convention for the Protection of Human Rights and Fundamental Freedom,
4 November 1950, 213 UNTS 221; Art. 7, American Convention on Human Rights, 21
November 1969, 1144 UNTS 123.

IV.AMALEA WAS WITHOUT JURISDICTION TO TRY LUZ IN CONNECTION WITH

THE ROSEHILL COLLISION, AND MUST RETURN HIM TO RITANIA
IMMEDIATELY.

I.

AMALEA HAS NO JURISDICTION OVER LUZ

The refusal of Amalea to repatriate Oscar de Luz based on the argument that Ritania has
no criminal law expressly punishing the offenses committed by Luz outside Ritanias territorial
waters, and the possibility that Luz may not be charged for the offenses commited, is
unwarranted.20 Ritanias claim for jurisdiction over Luz is based on the fact that Amalea is
likewise a signatory of the UNCLOS, and is therefore bound to observe it. Under Art.97, the
penal jurisdiction in matters of collision or any other incident of navigation belongs to the
judicial or administrative authorities either of the flag State or of the State of which such person
is a national.21 Since Luz was a Ritanian citizen, the claim of exclusive jurisdiction for the
investigation and prosecution of the alleged offenses of Luz by Ritania is proper. No arrest or
detention of the ship, even as a measure of investigation, shall be ordered by any authorities
other than those of the flag State.22 Hence, the arrest, trial and conviction of Luz in Amalea is
void for lack of jurisdiction and its refusal to extradite him lacks merit.

II.

AMALEAS RELIANCE ON THE EXTRATERRITORIALITY DOCTRINE IS

MISPLACED AND UNWARRANTED FOR LACK OF LEGAL BASIS.

20 Compromis, paragraph 49
21 Article 97 of UNCLOS, par. 1
22 Article 97 on UNCLOS, par. 3

A state may assert jurisdiction over extraterritorial offenses only when they result in
substantial effects within its territory23. Lacking prevalent interests arising from the effects of the
Rosehill collision within her territory, Amalea could not base her jurisdiction over Luz on both
objective territoriality, which confers jurisdiction upon a State in respect to offenses commenced
outside its territory but consummated within, and passive personality, which allows for conferral
of jurisdiction upon foreign national by a state for offenses committed abroad which affects its
citizens.

The defense of objective territoriality must fail since the effect felt by the state must be
intended as the primary and direct result of the crime. The defense of passive personality must
likewise fail because the principle only applies to serious international crimes. As a result, the
charges imposed on Luz of murder, property crimes, and reckless endangerment are insufficient
to trigger the strict scope of the application.

Amalea also asserts its jurisdiction over Luz based on its own Penal Code, which include
offenses committed in its uncontested EEZ and the Malachi Gap.24 Such law cannot be relied
upon in the instant case because Ritania is not privy to it, thus Ritanias assertion that Luz be
extradited immediately.

Extradition may be refused if the offense for which it is requested is an offense of a political
nature. 25 Clearly, the charges against Luz for which he was convicted were not of a political
nature, hence there is no legal justification as to why he should not be extradited. The formal
request of Ritania that Luz be immediately returned for investigation on whether there was a

23 US v Aluminum Co. of America, 148 F 2d 416 (2d Cir 1945)

24 Compromis, art 47
25 Sec. 4, UN Model Law on Extradition

basis to prosecute him for the Rosehill accident indicates the intent of Ritania to prosecute Luz
for the said offenses if proven guilty. 26

III.

AMALEA IS DIVESTED OF COMPETENCE TO PROSECUTE LUZ BECAUSE OF

THE ILLEGALITY OF HIS ARREST

As stated earlier, an arrest by one state in the territory of another state is lawful only when it
has been consented to by the latter. Without consent, supremacy of an individuals right to
liberty, as embedded in most existing human rights instruments, prevails.
The unlawful arrest of Luz divested Amalea of jurisdiction to try him. 27

IV.

ACCORDINGLY, LUZ MUST BE RETURNED TO RITANIA IMMEDIATELY.

Luzs right to fair trial would not be impeded on the basis of double jeopardy.

Making the arrest, trial and coviction of Luz by Amalea void for lack of jurisdiction therefore
refusal to extradite based on double jeopardy is erroneous. The principle ne bis in idem or
commonly known as double jeopardy states that Extradition may be refused, if there has been
a final judgement rendered and enforced against the person sought in the country adopting the
law or in a third State in respect of the offense for which extradition is requested is misplaced.28
Since the lack of jurisdiction of Amalea makes the conviction of the latter void, if Luz will be
subsequently convicted by Ritania, such conviction will be valid.
PRAYER
26 Compromis, art. 48
27 Alexander Zahar & Goran Sluiter, International Criminal Law: A Critical Introduction (New

York: Oxford University Press, 2007) at 290.

28 United Nations Office on Drugs and Crime, Modal Law on Extradition, Sec.8 (2004)

In view of the foregoing, the Respondent respectfully requests the Honorable Court to find
and declare that:

I.

Ritania has no obligation to compensate Amalea for any loss or damage allegedly caused
by the 2009 landslide, and that Ritanias conduct, with respect to the Excelsior Island
project complied with its obligations under International Law and the terms of the
Malachi Gap Treaty;

II.

Amaleas salvage of the Cargast is unlawful and the cargo and artifacts of Ritanian origin
recovered from the wreck properly belong to Ritania, and thus the latter has the right to
protect them;

III.

The pursuit and subsequent arrest of Oscar de Luz by Amalea is illegal; and

IV.

Amalea has no jurisdiction to try Luz in relation to the Rosehill collision and must return
him to Ritania immediately.