1417A

IN THE INTERNATIONAL COURT OF JUSTICE

PEACE PALACE, THE HAGUE

NETHERLANDS

In the matter of

State of Layona

Applicant

V.

Federal Republic of Liliput

Respondent

Case concerning Resource Exploration in the Adrean Sea Layona v. Liliput

Under Article 36 (2) of the Statute of The International Court of Justice

Memorial on behalf of the Applicant

 TABLE OF CONTENT

TABLE OF CONTENT.............................................................................................................ii

INDEX OF AUTHORITIES.....................................................................................................iii

STATEMENT OF FACTS........................................................................................................iv

STATEMENT OF JURISDICTION.........................................................................................vi

ISSUES FOR CONSIDERATION..........................................................................................vii

SUMMARY OF ARGUMENTS............................................................................................viii

ARGUMENTS ADVANCED....................................................................................................1

1. The International Court of Justice has the jurisdiction on this case under Article
36(2). 1

2. The resource exploration and research conducted by the Federal Republic of Liliput,
LOC and LMRI in the Adrean Sea Constitutes a violation of International Law. 3

PRAYER FOR RELIEF.............................................................................................................6

ii
 INDEX OF AUTHORITIES
Cases
Delimitation of the Maritime Boundary in Gulf of Maine Area (Can. v. U.S.), 1984 .C.J. 246
(Judgment of Oct. 12)............................................................................................................4
Guyana v. Suriname (P.C.A. Award of Sep. 17, 2007)...............................................................3
North Sea Continental Shelf Cases, [1969] ICJ Rep. 4..............................................................4
Nuclear Tests Case, ICJ Reports, 1974......................................................................................2
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012
(II)..........................................................................................................................................1
The Border and Transborder Armed Action Case, [1988] ICJ Rep 69, ICGJ 102 (ICJ 1988)
(The court found that elementary considerations of good faith lay down an obligation on
Nicargua)................................................................................................................................1
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ Reports (2010).
................................................................................................................................................1
Statutes
Article 238 United Nations Convention on the Law of Seas, 1982...........................................3
Article 55 United Nations Convention on the Law of Sea, 1982...............................................3
Article 74 (3) United Nations Convention on the Law of Seas, 1982.......................................3
Article(s) 74 (1) and 83 (1) United Nations Convention on the Law of Sea, 1982...................4
Preamble, United Nations Convention on the Law of Seas, 1982.............................................2
Reports
Land and Maritime Boundary between Cameroon and Nigeria, IC] Reports (2002), pp. 303,
429 (para. 264).......................................................................................................................2
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports
(2001), pp. 40, 68, ¶89...........................................................................................................2
Treatise
Anthony D’Amato, Good Faith, in 2 Encyclopedia Of Public International Law 599, 600
(Rudolf Bernhardt ed., 1995).................................................................................................1
Dr. Oliver Dörr, Dr. Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A
Commentary (2011, Springer) 129.........................................................................................2
Articles
Adede. A.O. ‘Toward the formulation of the rule of delimitation of sea boundaries between
states with adjacent or opposite coasts’ Virginia journal of international law 19, 1979 213,
215..........................................................................................................................................4
Gulf of Tonkin (China-Vietnam Dispute) Moïse, Edwin E. (1996). Tonkin Gulf and the
Escalation of the Vietnam War. Chapel Hill: University of North Carolina Press.................5

iii
 STATEMENT OF FACTS

Both the State of Layona and the Federal Republic of Liliput are States bordering the Adrean

Sea, and their coastlines face each other across the sea. The distance between the States’

coastlines is less than 400 nautical miles. Layona’s coastline on the Adrean Sea is longer than

that of Liliput. Layona ratified the United Nations Convention on the Law of the Sea

(UNCLOS), but Liliput only signed it. Both States are members of the United Nations.

Maritime boundary delimitation in the Adrean Sea has been a long-standing concern for

Layona and Liliput. Each State claims a 200-mile exclusive economic zone (EEZ) and the

continental shelf from its own coastline, and no agreement on maritime boundary between the

two States has been reached. In 2013, Liliput Oil Corporation (hereinafter, LOC), a petroleum

company run by the Government of Liliput, launched oil drilling in several offshore oilfields

in the Adrean Sea near Liliput’s coastline, and these oilfields produced high-quality oil. These

oilfields are all located in the area where only Liliput has claimed an EEZ and the continental

shelf. On the basis of the geological assessment, the Government of

Layona decided to start exploring oil resources in the Adrean Sea, near

the median line. Since the Government and its domestic companies have

no ability to carry out the exploration, Layona contacted several oil

companies based in developed countries, seeking the possibility of hiring

them. However, as none of the companies accepted the offers on the

grounds of “security risks,” Layona failed to conduct any oil resource

exploration in the Adrean Sea.

On the other hand, the Government of Liliput instructed LOC to carry out a

seismic survey

iv
around the Adrean Sea median line. LOC explored the Liliput side in the

vicinity of the median line using a seismic survey ship, as instructed. This

exploration was conducted by making full use of the most advanced, high-

precision three-dimensional-reflection seismic prospecting. Neither the

Government of Liliput nor LOC notified Layona of the seismic exploration

prior to its implementation. Furthermore, the Government of Liliput

commissioned the Liliput Maritime Research Institute (hereinafter, LMRI)

to research the presence of methane hydrate on the Liliput side of the

median line. In September 2017, the Lion Times, an influential newspaper

in Liliput, reported that “following the research engaged by Professor

Hegde of Barbward University and his international research team in

2013, LOC has conducted a seismic exploration on the Liliput side of the

Adrean Sea median line and confirmed the presence and location of

substantial petroleum resources. Moreover, the LMRI confirmed the

exposure of methane hydrate in the area near the median line between

Liliput and Layona and succeeded in taking samples of the resource for

their further research.”

In September 2018, under Article 36, paragraph 2, of the Statute of the

International Court of Justice, Layona unilaterally filed an Application

against Liliput to the International Court of Justice regarding a dispute

concerning both the resource exploration in the Adrean Sea conducted by

the Government of Liliput and LOC and the research for methane hydrate

carried out by LMRI, alleging that the exploration and the research

activities are in violation of international law.

v
 STATEMENT OF JURISDICTION

The applicant most humbly submits that this court has the jurisdiction to here the matter

under Article 36 (2) of the Statute of The International Court of Justice.

vi
 ISSUES FOR CONSIDERATION

1. WHETHER THE INTERNATIONAL COURT OF JUSTICE HAS JURISDICTION

ON THIS CASE UNDER ARTICLE 36(2).

2. WHETHER THE RESOURCE EXPLORATION AND RESEARCH CONDUCTED

BY THE FEDERAL REPUBLIC OF LILIPUT, LOC AND LMRI IN ADREAN SEA

CONSTITUTES VIOLATION OF INTERNATIONAL LAW.

vii
 SUMMARY OF ARGUMENTS

1. The International Court of Justice has the jurisdiction on this case under Article
36(2).

The reservation of the UNCLOS is only available for disputes arising out of maritime

delimitation. Article 18 of the Vienna Convention imposes an obligation on States

who have committed themselves formally to a treaty but are not bound by it to refrain

from doing acts which defeat the purpose of the treaty. It allows a third state to be

bound by customary rule of International Law, hence, providing ICJ jurisdiction over

this matter.

2. The resource exploration and research conducted by the Federal Republic of

Liliput, LOC and LMRI in the Adrean Sea Constitutes a violation of International
Law.

UNCLOS emphasizes on the need for mutual agreement between States before

proceeding with activities of research. By unilaterally carrying out such activities

without the consent of the Applicant, the Respondent’s conduct has violated principles

of international law. The principle of equidistance which involves taking the median

line as the solution for delimitation disputes is not recognized under customary

International Law and hence, it is not a mandatory legal principle.

viii
 ARGUMENTS ADVANCED

1. The International Court of Justice has the jurisdiction on this case under
Article 36(2).

The definition of maritime delimitation was used by the International Court of Justice in

Nicaragua v Colombia1, where it was found that maritime delimitation refers to “the task of

delimitation consists in resolving the overlapping claims by drawing a line of separation

between the maritime areas concerned”. Further, in case of Australia v Japan 2, it was held that

that mere questioning of maritime entitlements do not render the issue of the case to be that

of maritime delimitation. There exists an additional requirement of competing sovereign

claims over such territories. In the present case, Applicant is not making a sovereign claim

over the disputed region. It only seeking, pending final delimitation, an equitable and

amicable sharing of resource and technology as embodied in the principles of United Nations

Convention on the Law of Seas, 1982 (‘UNCLOS’). Therefore, the present case does not fall

under the reservation in the Respondent’s declaration.

UNCLOS was signed by the Respondent even though the subsequent ratification remains

pending. Under Article 18 of the Vienna Convention on the Law of Treaties (‘VCLT’), there

exists an obligation upon the Respondent to refrain from such acts that defeat the purpose of

the UNCLOS. One of the fundamental principles of international law is the principle of good

faith. It is explicitly incorporated in several provisions of the VCLT including Article 26,

Article 31 (1) and Article 32 (b). Further, Article 31(1) of VCLT holds good faith to be

implicit into every provision of a treaty. Therefore, the principle of good faith must also be

read into Article 18 of the VCLT. 3 While good faith, in itself, is not a source of obligation 4, it

is the underlying principle that determines the extent of an already existing obligation. In the
1
Territorial and Maritime Dispute (Nicaragua v. Colombia), Judgment, I.C.J. Reports 2012 (II).
2
Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), ICJ Reports (2010).
3
Anthony D’Amato, Good Faith, in 2 Encyclopedia Of Public International Law 599, 600 (Rudolf Bernhardt ed., 1995).
4
The Border and Transborder Armed Action Case, [1988] ICJ Rep 69, ICGJ 102 (ICJ 1988) (The court found that
elementary considerations of good faith lay down an obligation on Nicargua).
Nuclear Tests Case5, where this Court’ held the principle of good faith to be ‘an essential tool

in determining creation and performance of legal obligations.’ 6 In Cameroon v Nigeria7, this

Court held that ratification to not be a compulsory requirement and that a treaty may enter

into force merely on signature. Further in Qatar v Bahrain8, the Court observed that

unratified treaty might represent accurate understanding merely by the signature. The primary

purpose of the UNCLOS, which came into force on November 16, 1994, is maximum

efficient utilization of marine resources through cooperation amongst member nations. 9 In the

present case, the Applicant is a developing nation, which also happens to be a member of the

UNCLOS and the Respondent, a developed nation, which has merely signed the UNCLOS

without subsequent ratification. There exists an obligation on the Respondent under Article

18 of VCLT to refrain from acts that would defeat the purpose of the UNCLOS. Article18

sets out an obligation for those States that have committed themselves formally to a treaty but

are not bound by it. Hence the purpose of the Article is to protect the negotiated agreement so

that at the time of future ratification, the rationale of the agreement is still in place and not

contradictory to the initial purpose.10

Hence, the Respondent’s act of research exploration in the Adrean Sea along with LOC and

LMRI is therefore a violation of the Respondent’s obligation under Article 18 of the VCLT as

the dispute clearly falls within the UNCLOS. Therefore, the matter falls under the

jurisdiction of this Court.

5
Nuclear Tests Case, ICJ Reports, 1974.
6
Ibid.
7
Land and Maritime Boundary between Cameroon and Nigeria, IC] Reports (2002), pp. 303, 429 (para. 264).
8
Maritime Delimitation and Territorial Questions between Qatar and Bahrain, ICJ Reports (2001), pp. 40, 68, ¶89.
9
Preamble, United Nations Convention on the Law of Seas, 1982.
10
Dr. Oliver Dörr, Dr. Kirsten Schmalenbach, Vienna Convention on the Law of Treaties: A Commentary (2011, Springer)
129.

2
 2. The resource exploration and research conducted by the Federal Republic of
Liliput, LOC and LMRI in the Adrean Sea Constitutes a violation of
International Law.

Article 238 of UNCLOS permits the marine scientific research “subject to the rights and

duties of the other States as provided for in the [said] Convention”. 11 From the plain reading

of Article 74 (3) of UNCLOS that deals with the Exclusive Economic Zone (“EEZ”) 12 and

Article 83(3) of UNCLOS that talks about the continental shelf, it can be inferred that it is

evident that the Respondent had the obligation to enter into a provisional agreement before

conducting any resource exploration and research since there is a pending delimitation

dispute in Adrean Sea between the two States. It has been held that Article 83 (3) and Article

74 (3) of the UNCLOS are codification of the customary international law practice that has

been prevalent in the international maritime regime. Interpretation of the obligation of the

States under Article(s) 83(3) and 74(3) had come under scrutiny in the case of Guyana v

Suriname13. The court went on to state that unilateral acts such as seismic exploration were

acceptable for sovereigns or companies, while “activities of the kind that lead to a permanent

physical change, such as exploitation of oil and gas reserves” are not.14
UNCLOS has no provisions on how to resolve sovereignty disputes over offshore features.

However, it does contain provisions on the nature and extent of the maritime claims that can

be made from land territory and offshore features. The EEZ and Continental Shelf extends

upto 200 nautical miles from the territorial sea baseline. 15 In this case, since both the States

are adjacent to each other at a distance of lesser than 400 nautical miles, their respective

EEZs and Continental Shelf are overlapping. Hence, the overlapping area is a matter of

dispute. By carrying out scientific exploration along the median line, the Respondent has

11
Article 238 United Nations Convention on the Law of Seas, 1982.
12
Article 74 (3) United Nations Convention on the Law of Seas, 1982.
13
Guyana v. Suriname (P.C.A. Award of Sep. 17, 2007).
14
Guyana v. Suriname, (P.C.A. Award of Sep. 17, 2007).
15
Article 55 United Nations Convention on the Law of Sea, 1982.

3
encroached the rights of the Applicant over its EEZ and the Continental Shelf. This is clear

violation of the principles of UNCLOS as there is a pending delimitation dispute and if the

court in the said dispute grants entire stretch of 200 nautical miles to the Applicant, then the

exploration done by the Respondent along the median line shall be violation of its territory.
Article(s) 74 (1) and 83 (1) of UNCLOS provide that “the delimitation of the [continental

shelf/exclusive economic zone] between States with opposite or adjacent coasts shall be

effected by agreement on the basis of international law, as referred to in Article 38 of the

Statute of the International Court of Justice, in order to achieve an equitable solution”. 16

North Sea Continental Case17 minimized the importance of the equidistance principle 18. The

Court held that, “the equidistance principle was not a necessary consequence of the general

concept of continental shelf rights, and was not a rule of customary international law 19.”

Similarly, in the Gulf Maine Case20 the Court applied a geometrical method, which resulted in

a median delimitation line and then corrected that line to take account of the difference in

length of the two coastlines, a factor which it decided was an important circumstance 21. In the

present case, the Respondent has erred in assuming that the equidistant median line is the

delimitation line between the States. Several cases stated above negate the said assumption of

the Respondent. Hence, the unilateral resource exploration and exploitation by the

Respondent is the clear violation of the sovereignty of the Applicant.

In the Gulf of Tonkin (China-Vietnam Dispute)22, the States reached a compromise by moving

away from strict equidistance and use compromise and certain techniques to reach an

equitable line. In the present case, since the Applicant is a poor developing country, it will

require the entire coastal stretch of 200 nautical miles along its coast to ensure equitable
16
Article(s) 74 (1) and 83 (1) United Nations Convention on the Law of Sea, 1982.
17
North Sea Continental Shelf Cases, [1969] ICJ Rep. 4.
18
Adede. A.O. ‘Toward the formulation of the rule of delimitation of sea boundaries between states with adjacent or opposite
coasts’ Virginia journal of international law 19, 1979 ¶ 213, 215.
19
North Sea case, Merits of Judgment of 20 February 1969. Preamble ¶ 3.
20
Delimitation of the Maritime Boundary in Gulf of Maine Area (Can. v. U.S.), 1984 .C.J. 246 (Judgment of Oct. 12).
21
Ibid.
22
Gulf of Tonkin (China-Vietnam Dispute) Moïse, Edwin E. (1996). Tonkin Gulf and the Escalation of the Vietnam War.
Chapel Hill: University of North Carolina Press.

4
distribution of wealth. Since the Respondent has very sophisticated and developed technology

and other monetary resources for exploitation. Keeping in mind the equity and the customary

and the codified principles of international law, there should be immediate suspension of all

the exploration and resource exploitation activities.

5
 PRAYER FOR RELIEF

Wherefore in the light of facts stated, issue raised, arguments advanced, and authorities cited

it is most respectfully and humbly prayed before the International Court of Justice that it may,

DECLARE that the International Court of Justice has Jurisdiction over the matter related to

exploration of resources.

DECLARE that the resource exploration and research conducted by the Government of the

Federal Republic of Liliput, LOC and LMRI in Adrean Sea Constitutes a violation of

International Law.

DECLARE that the Respondent shall take all necessary steps to ensure that no new

exploration either by Respondent or under its control takes place in the disputed area.

And pass any other order as it so deems fit in the ends of justice, equity and good conscience.

All of which is most humbly and respectfully prayed

Date: 26 September, 2018 Counsel for the Applicant

Place: THE HAGUE Counsel No: 1417A