1974 PHILIP C. JESSUP I NTERNATIONAL LAW r100T COURT MEt'10RIALS ON BEHALF OF APPLI CANT AND RESPONDENT, THE STATE OF INDUSTRIA V. THE STATE OF LATIA DAVID C. CAYLOR KENNETH Q. LARSON , No. 1974-001 IN THE, INTERNATIONAL COURT OF JUSTICE AT THE PEACEI='ALACE, THE HAGUE, NETHERLANDS March Term, 1974 THE , ..,.... .STATE "OF INDUSTRIA, . " Applicant, v. , , \THESTATEOF LATIA, Respondent. On Submission to the Interriational Court of Justice . , .'" 1· , ' 1 , •• ' TEAM NO. I February 22, 1974 , . Agents for Industria : I N 0 E X Page Index of Authorities • Jurisdiction • • • • • • • • • • • Questions Presented • . • ' . Statement of Facts . Summary of Argument . • . • . . • • . • . . . ii • . . . • . . . viii • • . . . . . . . . . . . . • • . . . . . . . . .. . . . . ix .• . . ix . . ix Argument and Authorities • • • • • • I. THE DEEP OCEAN MINING ACT IS JUSTIFIED UNDER INTERNATIONAL LAW. • • • • • • • • A. B. II. 1 1 Freedom of the high seas, both as customarily practiced and as codified by the 1958 Geneva Conference on the Law of the Sea, permits Industrian ships to mine the subsoil of the high seas. . .... .. .. . .... . 1 The Deep Ocean Mining Act realistically meets the needs of the world community by ensuring adequate mineral suppli e s, preventing partitioning of the high seas , and promoting international cooperation. •• • • • . • 4 BECAUSE TRACT #1 IS AN AREA OF THE HIGH SEAS OVER WHICH LATIA HAS NEVER HAD JURISDICTION, INDUSTRIA ' S MINING OPERATIONS WERE LAWFUL. A. Latia's claimed 200-mile fisheries zone violates international law and cannot serve as a basis for extending its territorial sea . B. C. 7 . . . . . . . . . . . . Latia's claim to a 200-mile territorial sea violates the Convention on the Territorial Sea and Contiguous Zone and customary international law. ••••• . . . 7 • • • 9 Because Tract #1 is neither adjacent to Latia's coast nor expl,oitable, Latia's claim that its continental shelf extends to Tract #1 violates the Convention on the Co~tinental Shelf and customary inter- national law. · . • • . • . • •• . . . • . . . 12 ii Page D. III. Because Latia's claimed 300-mile economic resource zone neither conforms to the 1958 Conventions nor bears any relation to Latia's capabilities or needs, the claim violates international law. ..·.. 15 • • • 18 ·.. 18 LATIA'S ACTIONS AGAINST INDUSTRIAN SHIPS VIOLATED INTERNATIONAL LAW. • ••••• By ini tiating armed aggression against Industrian ships · on the high seas, Latia violated international law. •••• • • A. B. Latia's unlawful pursuit of Carrier and use of excessive force against Gatherer entitl e Industria to compensation for all damages.. Conclusion • .. II .. .. II .. 0 " lit .. .. • Appendix B • • • • • o I N D E X .. • • • • • • • • • . ... " .. .. .. .. 20 .. • • • 23 • • • • • 24 • • • • • • • • Appendix A .. • • • 25 • AUT H 0 R I TIE S F Page Treaties Deep Ocean Mining Act (1973) • • • • • • • • • • • • • •• DOMA § 2(b) • DOMA § 2 (c) • • DOMA § 3 • DOMA § 4 (c) • • • DOMA § 5 DOMA § 6 • DOMA § 7 .. • • • • • • • .• .. • • • • • • • • • • • · • • • • • • • • • • • .. ... .. • 4 .6, 14 • • ..• .• ·.• ..... . . • • • • . . . • • . • 2, , • • . • 5 7 6 • • • • • • • • 1 • • • · • • 5, 6 • • . 6 iii Page Treaties (Cont.) Vienna Convention on the Law of Treaties, art. 2(1) (a), done May 23, 19.69, U.N. Doc. A/CONF. 39/27 • • • • • • • 4 ..., .. Vienna Convention art. 26 • . • • • • .• .• . Convention on the High Seas, done April 29 , 1958, T. LA.S. No. 5200; U. N . T.s:-lf2 • • • . 16 .. • . • · • 2, 3, 16 , 23 . • . . . . • • . . • • 23 (7) . . . ·....·. Convention on the High Seas art . 2 • • • Convention on t he High Seas art . 18 21 ' Convention on the High Seas art. 2 22 Convention on the Territorial Sea and Contiguous Zone, done April 29, 1958, T.I . A.S . 5639; 516 U.N.T.S. 205 . • . . •.• . ..... . ... •.. 9 Convention on the Territorial Sea art . 24 • • • • • • • • • 16 Convention on the Territorial Sea art . 24(1) 17 Convention on the Territorial Sea art . 24(2) Convention on the Continental Shelf, done April 28, 1958, T.I.A.S. No. 5578 ; 499 U.N.T.S . 311 • Convention on the Continental Shelf art. 1 • • Convention on the Continental Shelf art. 3 • U.N . CHARTER art. 51 • • • ....... . • .... 9 3 • • 12 • • • • 16 .19 , 22 • Cases Fisheries Jurisdiction Case , 12 INT'L LEG. MAT. 300 (1973) . . . . . . . . . . • . . • • • • • . • 8, 9 North Sea Continental Shelf Cases , I.C.J . . . Fisheries Case, •• .. . . . . . . .[1969] ..... . ' 12 , 13 , 16 , 17 [1951] I.C.J. • • • • • • • • • • • • • • • Corfu Channel Case (Merits), [1949] I.C.J • • • • • • • • • 9 19 iv Cases (Cont.) Page Claim of the British Ship "I'm Alone" v. United 29 AM. J . . Naulila Incident Arbitration 409, 2 U.N.R.I.A.A. 1012 (1928),6 HACKWORTH, INTERNATIONAL LAW 154 (1943) • • . . • • • • • • • • • . . " 22 • 22 • Le Louis [1917] 2 Dods, 210-243 • • • • . • • • • 19 Treatises J. ANDRASSY, INTERNATIONAL LAW AND THE RESOURCES OF THE SEA (1970) " .. " " .. II " III .. " " " • • " • • B. BRITTIN & L. WATSON , INTERNATIONAL LAW FOR SEAGOING OFFICERS (3d ed. 1 9 7 2 ) . D. BROWN, PUBLIC INTERNATIONAL LAW (1970) • • 14 24, 25 1 • D. BOWETT , SELF-DEFENSE IN INTERNATIONAL LAW (1958) 19 I. BROWNLIE, PRINCIPLES OF PUBLIC I NTERNATIONAL LAW (2d ed. 1973) • • • • • • • • • • . 20 C. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA (6th ed. 1967) • . • • • • • • • •• • • • 7, 19 Emery, Geological Aspects of Sea-Floor Sovereignty , in THE LAW OF THE SEA (L. Alexander ed . 1967) ••• • • 14 M. GREEN , INTERNATIONAL LAW (1968) • 9 , 20 • D. JOHNSTON & E . GOLD , THE ECONOMIC ZONE IN THE LAW OF THE SEA : SURVEY, ANALYSIS, AND APPRAISAL OF CURRENT TRENDS, OCCASIONAL PAPER No. 17 (1973) •• • • • • •• • • • 1 H. LAUTERPACHT, INTERNATIONAL LAW (E. Lauterpacht ed . 1970) . • • • • • • • •• J. MERO, THE MINERAL RESOURCES OF ~HE SEA (1965). M. MCDOUGAL & W. BURKE , THE PUBLIC ORDER OF THE OCEANS (1962) • •• • ••• • • •••• • • • 16 2 5 7, 14 1 NEW DIRECTIONS IN THE LAW OF THE SEA 233 (S. Lay, R. Churchill, & M. Nordquist ed. 1973) • • • • • • 11 v Page Treatises (Cant.) S. ODA, INTERNATIONAL CONTROL OF SEA RESOURCES (1963) • . . • • • . • • • • • • • • • 3, 15 .... S. ODA, THE INTERNATIONAL LAW OF OCEAN DEVELOPMENT (1972) • • • • • • • • • • • • • ....... 7 2 L. OPPENHEIM, INTERNATIONAL LAW (7th ed. H. Lauterpacht 1952) • • • • • • • • • . . . . . . 22 POULANTZAS, THE RIGHT OF HOT PURSUIT IN INTERNATIONAL LAW (1969) • • • • • • • • • • • • • • • • 21, 22 1 G. SCHWARTZENBERGER, INTERNATIONAL LAW (3d ed . 1957) . . . . . . . . . . . • . . . . . . . 2 G. SCHWARTZENBERGER, INTERNATIONAL LAW (196B) ... • 1 • 19 , 21 Z . SLOUKA, INTERNATIONAL CUSTOM AND THE CONTINENTAL SHELF (1966) • • • • • • • • • • • • • • • • • • 14 J. STARKE, AN INTRODUCTION TO INTERNATIONAL LAW (7th ed. 1972) • • • • • • • • R. SWIFT, INrERNATIONAL LAW (1969) • • • 11 4 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW (1965) • • • 5 22 • M. WHITEMAN, DIGEST OF INTERNATIONAL LAW (1965) B, 11 • •• 19 Periodicals Bowett, Collective Self-Defense Under the Charter of the United Nations, 32 BRIT. Y. B. INT'L L. 1955-56, at 130 (1957) • • • • • • • "• • • • Friedmann , Selden Redivivus--Toward a Partition of the Seas? , 65 AM. J . INT'L L . 757 (1971)'. . . . 19 .... Goldie , International Law of the Sea: A Review of States' Offshore Claims and Com etences , 24 NAVAL WAR COLLEGE REV . Fe • 1 •• • • • • . 10 4 Knight, The Deep Seabed Hard Miner al Resources Act--A Neyative View, 10 SAN DIEGO L . REV. 446 (1973 . • • • • • • ............... 10 vi Page Periodicals (Cont.) Sea Minin , 7 SAN 5, 6, 13, 14 Nelson, The Patrimonial Sea, 22 INT'L L. & COMPo L. Q. 668 (1973). • ••• • .. .. .. .. . . . 10 Pardo, An International Regime for the Deep Seabed: Develo in Law or Develo in Anarch?, TEX . INT L L. F. .. .. .. .. .. .. .. .. • • • 13, 17 Phleger, Recent Develoements Affecting the Re,ime of the Hilh Seas, ~n DEP'T STATE BULL. 93 (June 6, 955) . ... ...... . .... . . .... .. . . .. . .. .. 11 428 (1969) ...... . ...... . . . .. . .. .. . .. .. .. .. .. .. . lB Note, Seizure of United States Fishing Vessels-The Status of the Wet· war, 6 SAN DIEGO L. REV. Misc e llaneous American Tuna Boat Association, DATA ON SEIZURES OF U.S. TUNA BOAT CLIPPERS DURING PERIOD JANUARY 1961-JUNE, 1969, Table 1 (1969) • • • • • • • • • • • • • B The Bulgaria--Czechoslovokia--Hungary--U.S.S.R. Declaration of 1972, 12 INT'L LEG. MAT. 215 (1973) ...... .. .. .. .. .................... . .. . . .. .. The Colombia--Mexico--Venezuela Declaration of 1973, 12 INT'L LEG. MAT. 570 (1973) • • • • • • • • • 11 • • • 11 COMM'N TO STUDY THE ORG. OF PEACE, Nineteenth Rep., THE UNITED NATIONS AND THE BED OF THE SEA 16 (1970) .......... .. .. .. ........ .... .. .. -. .. ... .. 7 COMM'N TO STUDY THE ORG. OF PEACE, Twenty-First Rep., THE UNITED NATIONS AND THE BED OF THE SEA (II) 17 (1970) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 4, 15 .. The Comm. on Deep Sea Mineral Resources of the Am. Branch of the Int'l L. Ass'n, Second Interim Report on Deep Sea Mineral Resources pt. VII, in THE INTERNATIONAL LAW OF THE OCEAN DEVELOPMENT (5.. Oda ed.. 1972) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ... 3 vii Miscellaneous (Cont . ) Page Henkin, The Continental Shelf , in FOURTH ANNUAL CONFERENCE OF THE LAW OF THE SEA INSTITUTE, THE LAW OF THE SEA: NATIONAL POLICY RECOMMENDATIONS 171 (L. Alexander ed. 1969) • • ·.. 10 G.A. Res. 2574, 24 U.N. GAOR. U.N. Doc. A/7834 (1969) . . . . . .. • . . • • . . . . . . . • • • • 16 Inter-American Juridical Comm., Opinion on the Breadth of the Territorial Sea 1969 O.A.S'./OD O. E.A./Ser.l/VI.2 (English) CIJ-80, at 33 & n.49 • • • .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 17 ·.. Int'l L. Comm'n, Report, 11 U.N . GAOR, Supp. 9 , at 24, U.N . Doc . A/3l59 (1956) • • • • • • • 2, 9, 16 Int'l L. Comm'n, Report, 23 U. N. GAOR, at 9, 10, U.N. Doc. A/AC. 135/19 Add. 1 (1968) • • • • • • • • 1 Report of the 358th Meeting, 1 Y. B. INT'L L . COMM'N 136 (1956) • • • • • • • , • • • • .. Santo Domingo Declaration, 11 INT'L LEG. MAT,. 892 (1972) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. 12 ..·.. 11 23 U.N. GAOR, Ad Hoc Comm. To Study t he Peaceful Uses of the Sea-bed and the Ocean Floo'r Beyond the Limits of National Jurisd. , A/AC.135/R.l (1968) .. .. .... .. ........ .. .. .... .... .. .. .. .. .. 4, 7 23 U.N. GAOR, Ad Hoc Comm. To Study the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond , the Limits of National Jurisd. , A/AC.135/R.5 (1968) .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 5, 6 24 U.N. GAOR, Report of Comm. on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisd., Supp. 22 , at 108, 1 09. U. N• Doc . A/7 622 (1969) • • • • • 3, 5 , 6 , 7 , 13 viii BEFORE THE INTERNATIONAL COURT OF JUSTICE . MARCH TERM 1974 CASE NO. 1974-001 THE STATE OF INDUSTRIA, Applicant v. THE STATE OF LATIA, Respondent MEMORIAL FOR THE APPLICANT J URI S D I C T ION The parties have agreed to submit this dispute to the International Court of Justice for its determination. ix oU I. II. III. EST ION S PRE SEN TED WHETHER THE DEEP OCEAN MINING ACT IS JUSTIFIED UNDER INTERNATIONAL LAW? WHETHER LATIA HAS JURISDICTION OVER TRACT 11? WHETHER LATIA'S ACTIONS AGAINST INDUSTRIAN SHIPS VIOLATED INTERNATIONAL LAW? o STATEMENT F F ACT S The parties have ' stipulated the facts before the Court. SUMMARY o F A R GUM E N T The Deep Ocean Mining Act is justified under international law. Under the principle of freedom of the high seas, Indus- trian ships ~ave the right to mine the subsoil of the high seas. Furthermore, the Deep Ocean Mining Act complies with the 1958 Geneva Conventions by protecting the freedom of the high seas and ensuring the orderly development of ocean resources. Because Tract #1 is an area of the high seas, and Latia has never had jurisdiction over it, Industria's mining operations on Tract #1 were lawful. By initiating armed aggression against Industrian ships on the high seas, Latia violated international law. Latia's unlawful pursuit of Carrier, and its use of excessive force against Gatherer, entitle Industri'a to compensation for ' all damages. ARGUMENT AND AUTHORITIES I. THE DEEP OCEAN MINING ACT IS JUSTIFIED UNDER INTERNATIONAL LAW. A. Freedom of the high seas, both as customarily practiced and as codified by the 1958 Geneva Converence on the Law of the Sea, ~ermits Industrian ships to mine the subsoil of the h~gh seas. The ri hts authorized b the Dee tent w~t ~nternat~ona law. Ocean Minin Act are consis- The high seas are those parts of the oceans which lie seaward of any nation's territorial sea. INTERNATIONAL LAW 338 (3d ed. 1957). 1 G. SCHWARTZENBERGER, The principle of the free- dom of the high seas as recognized by customary international law applies to all the waters of the open sea. INTERNATIONAL LAW 102 (1970). D. BROWN, PUBLIC One corollary of this principle is that all states may exploit the minerals and organic resources of the high seas and its subsoil. Id. at 103. The International Law Commission Special Rapporteur on the Law of the Sea has noted that the subsoil of the high seas is capable of at least temporary occupation for scientific and economic activities as long as there is no unreasonable interference with navigation. Int'l L. Comm'n, Report, 23 U.N. GAOR, at 9, 10, U.N. Doc. A/AC. 135/19 Add. 1 (1968). Accord, ingly, the Deep Ocean Mining Act [DOMA) permits only temporary occupation of licensed areas of the high seas, for the limited purpose of extracting minerals, and prohibits 2 unreasonable interference with any customary use of the ocean. DOHA § 4(c). DOHA therefore, is consistent with customary international law. DOHA complies with the 1958 Geneva Conventions by protecting the freedom of the high seas and ensuring the orderly development of ocean resources. The 1958 Geneva Conventions produced the most successful codification of the customary law of the sea . PACHT, I NTERNATIONAL LAW 98 1 H. LAUTER- (E . Lauter pacht ed . 1970). Freedom of the high seas is defined in Article 2 of the Convention on the High Seas. The Convention observed that freedom of the high seas i s comprised of not only the freedoms of navigation, fishing, cable-laying and overflight, but also of other freedoms which are recognized by the general principles of international law. Convention on the High Seas , done April 29 , 1 958 , T.I.A . S. No . 5200; 450 U. N. T.S. 82 [ hereinafter cited as CHSJ . The International Law Com- mission explained that these other freedoms include the freedom to mine mineral resources . Int ' l L. Comm'n , Report, 11 U.N. GAOR, Supp. 9 , at 24, U.N. Doc . A/3l59 (1956) after cited as 11 1. L.C.J. [herein- DOHA violates none of the free- doms enumerated by the Convention; on the contrary , DOHA makes express provision for protecting the traditional freedoms of the seas by authorizing it,!> secretary to prevent any unreasonable interference with ocean usage. DOHA 5 4(c). DOHA thereby gives its member-states the administrative control deemed neces s ary by t he U.N. Permanent Sea-bed Committee 3 to ensure the protection of these freedoms. 24 U.N. GAOR, Report of the Comm. on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisd., Supp. 22, at 108, 109, U.N. Doc. A/7622 (1969) [hereinafter cited as Sea-bed Comm.J. The right of DOMA licensees to exploit submarine resources requires no ~ew doctrinal justification: herent in freedom of the high seas. CONTROL OF SEA RESOURCES 151 (1963). it is in- S. ODA, INTERNATIONAL Indeed, as long as min- ing operations are conducted with reasonable regard for the interests of other states, as Ocean Mining Company's operations are, the operations are permitted and protected by international law. The Comm. on Deep Sea Mineral Resources of the Am. Branch of the Int'l L. Ass'n, Second Interim Report on Deep Sea Mineral Resources pt. VII, in THE INTERNATIONAL LAW OF THE OCEAN DEVELOPMENT (S. Oda ed. 1972). Since DOMA operations are specifically limited to extracting hard minerals from the subsoil of the high seas, no DOMA state purports to subject any part of the high seas to its sovereignty. Therefore, DOMA complies with the CHS by respecting the freedom of the seas. CHS art. 2. The Convention on the Continental Shelf [CCSJ, to ensure the orderly development of the ocean's resources, limited mining by non-coastal nations to the subsoil of the high seas. Convention on the Continental Shelf, done April 28, 1958, T.I.A.S. No. 5578; 499 U.N.T.S. 311 [hereinafter cited as ccsJ. DOMA recognizes and implements this aspiration by incorporating 4 the Convention's definition of continental shelf. 2(b). DOMA S This explicit reference to the Convention on the Con- tinental Shelf is convincing evidence that the framers of DOMA intended DOMA to reflect the spirit of all the Conventions. B. The Deep Ocean Mining Act realistically meets the needs of the world community by ensuring adequate mineral supplies, preventing partitioning of the high seas, and promoting international cooperation. Multilateral treaties are particularly desirable for meeting the needs of the world community. Friedmann, Selden Re- divivus--Towards a Partition of the Seas?, 65 AM. J. INT'L L. 757, 770 (1971) . DOMA is a multilateral treaty as defined by the Vienna Convention. Treaties, 39/27. art~ Vienna Convention on the Law of 2(1) (a), done May 23, 1969, U.N. Doc. A/CONF. Such treaties are an efficient and equitable method for ensuring the orderly and progressive exploitation of the resources of the high seas. 23 U.N. GAOR, Ad Hoc Comm. to Study the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of National Jurisd., A/AC.135/R.l, at lB (196B) [hereinafter cited as Ad Hoc Comm.l. Multilateral treaties impose enforceable self-restraints on their participants and avoid the unlimited and disruptive claims resulting from unreasonable unilateral actions such as Latia's. See COMM'N TO STUDY THE ORG. OF PEACE, -'Twenty-First Rep., THE UNITED NATIONS AND THE BED OF THE SEA (II) 17 (1970) [here- inafter cited as U.N. & BED OF THE SEAl. DOMA requires its members to adhere to specific regulations ~hich prevent 5 unlimited prescription of the high seas. DOMA § 3. Thus, DOMA prevents a massive race to partition the seas through unilateral action. Manganese nodules contain at least fifteen metals essential to the world's continuing industrial and technological development. Mero, A Legal Regime for Deep Sea Mining, 7 SAN DIEGO L. REV. 4BB, 496 (1970) DIEGO]. [hereinafter cited as 7 SAN Although these minerals are being rapidly depleted on land, the oceans contain vast reserves sufficient to meet the world's needs. 27B (1965). J. MERO, THE MINERAL RESOURCES OF THE SEA Most developing coastal states with extended jurisdiction cannot effectively exploit the resources within these areas because they lack sufficient technology. The re- sult will be a critical shortage of vitally needed resources. Ad Hoc Comm. 11. DOMA prevents the void resulting from lack of adequate production by encouraging mutual assistance and cooperation among participating states. DOMA § 6. Securing adequate supplies and systematic production of minerals from ocean resources will stabilize world markets by averting fluctuations in market prices caused by shortages. Sea-bed Comm. 109. The cooperation engendered by DOMA dis- courages price manipulation by single-nation monopolies. Additionally, the security which DOMA provides its licensees will attract · the investment capit~l exploitation of ocean resources. needed to realize effective 6 DOMA's ~rovision for recognition of its licensees by any future ~nternational regime is necessary for the realization of orderly ocean development. Section 7 of DOMA protects the investments of licensees under any forthcoming international regime. This provision is reasonable and necessary for DOMA to be a viable solution to the problems involved in ocean mining. DOMA § 7. The high costs involved in exploring and developing ocean mineral sites would render non-recognition by an international regime an inequity to licensees and would greatly discourage investment, exploration, and exploitation. Because experts suggest licensing tracts of 1,000 to 5,000 square miles, the 100-square-mile maximum tract size allowed by DOMA would be reasonable under any future regime. § 2 (c); 7 SAN, DIEGO 488, 500. DOMA DOMA' s trust fund contr ibutes an equitable amount to developing states; therefore, permitting the continuation of mining operations under DOMA licenses would not impair the functioning of the regime. Ad Hoc Comm., U.N. Doc. A/AC.13~/R.5, DOMA § 5, 6; at 11. The restrictions placed on licensees by DOMA are extremely stringent and would probably exceed those of any future international regime. Sea-bed Comm. 153. Moreover, DOMA's licens- ing period of twenty years is brief, so that even if it proved incompatible with an international regime the remaining licensing period would be relatively short. The licensing provisions of DOMA are consistent with those of the U.N. Seabed Committee's Legal Sub-committee. Both licensing programs employ a "double C?oncession system" 7 in which the state acts as the administrator of the mining operations. Sea-bed Comm. 108 & n.26. As administrators of these operations, DOMA nations can ensure effective exploitation while protecting the other uses of the oceans. DOMA § 4(0), ~ Ad Hoc Comm., U.N. Doc. A/AC.l35/R.l, at 16. Moreover, a prime requisite of the proposed regime will be to grant companies the security of tenure necessary for inducing investment of the large sums essential to ocean development. COMM'N TO STUDY THE ORG. OF PEACE, Nineteenth Report, THE UNITED NATIONS AND THE BED OF THE SEA 16 (1969). It is reasonable for DOMA to give its licensees the same protection that an international regime will give its licensees. II. BECAUSE TRACT #1 IS AN AREA OF THE HIGH SEAS OVER WHICH LATIA HAS NEVER HAD JURISDICTION, INDUSTRIA'S MINING OPERATIONS WERE LAWFUL. A. Latia's claimed 200-mile fisheries zone violates international law and cannot serve as a basis for extending its territorial sea. Latia ' s claim to fisheries jurisdiction does not conform to the customary practice of nations. The 1958 Geneva Con- ference did not recognize exclusive fisheries zones such as Latia has claimed. M. MCDOUGAL & ·W. BURKE, THE PUBLIC ORDER OF THE OCEANS 539 (1962) BURKE] I [hereinafter cited as MCDOUGAL & C. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA (6th ed. 1967). § 27a Over two-thirds · (fifty-seven) of the world's developing coastal states do not claim exclusive fisheries jurisdiction beyond twelve miles. S. ODA, THE INTERNATIONAL LAW OF OCEAN DEVELOPMENT 372 (1972). 8 Regular protests of fisheries zones such as Latia's demonstrate that such zones are inconsistent with international law. 4 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 1102 (1965). General lack of recognition of claims to extended fisheries jurisdiction has been fur.ther demonstrated by continued fishing of the declared zones by foreign nationals. See American Tuna Boat Association, DATA ON SEIZURES OF U.S. TUNA BOAT CLIPPERS DURING PERIOD JANUARY 1961-JUNE 1969, Table 1 (1969) . In fact, periodically, Latia has had to exclude foreign fishing ships from its own declared zone. This continued non- recognition of Latia's claimed fisheries jurisdiction, viewed in conjunction with widespread protest and infringement of similarly claimed zones, demonstrates that Latia's claim has no basis in international law . In the Fi~heries Jurisdiction Case of 1973, Judge Sir Gerald Fitzmaurice recognized that there is no generally accepted method of validly asserting exclusive fisheries jurisdiction unilaterally, except as part of a valid claim to territorial waters . Fisheries Jurisdiction Case, 12 INT'L LEG. MAT . 300 , 312 (1973). When Latia cla'imed its fisheries zone, it had no territorial sea upon which to base this claim. Thus, Latia's claim to a 200-mile fisheries zone is invalid. A void exercise of jurisdiction can never be the basis for further assertions of jurisdiction,. Therefore, Latia cannot base its claim to a 200-mile territorial sea upon an invalid claim to a 200-mile fisheries zone. 9 B. Latia's claim to a 200-mile territorial s e a violates the Convention on the Territorial Sea and Contiguous Zone and customary international law . This Court has declared arbitrary, unilateral extensions of territorial seas to be unlawful. I.C.J. 132. Fisheries Case, [1951] Extensions of two hundred miles are arbitrary under any circumstances. The vast majority of states agree that claims to more than twelve miles violate international law. M. GREEN, INTERNATIONAL LAW 205 (1973) . In preparing its draft of the 1958 Territorial Sea Convention, the International Law Commission expressly sta t ed that extensions beyond twelve miles derogate from freedom of the seas and are not permitted under international law. 11 I.L.C . 13. Arti- cle 24(2) of the Convention on the Territorial Sea and the Contiguous Zone states that a nation claiming a twelve-mile territorial sea is entitled to no . contiguous zone . Conven- tion on the Territorial Sea and Contiguous Zone, art . 24(2), done April 29 , 1958 , T.I.A.S. 5639; 516 U.N.T.S. 205 [hereinafter cited as CTSCZ]; Fisheries Jurisdiction Case, 12 INT ' L LEG. MAT. 310, n.l (1973). The implication of this provision is that no state may claim a territorial sea beyond twelve miles . Fisheries Jurisdiction Ca se, 12 INT'L LEG. MAT. 310 , n.l (1973). Twelve miles, therefore, is the prescribed outer limit of the territorial sea , and ,,any extension beyond that distance is contrary to the CTSCZ. International law prohibits claims of limited jurisdiction, such as Latia's claim to a 200-mile fisheries zone, from 10 ripening into claims of total national sovereignty. Knight, The Deep Seabed Hard Mineral Resources Act--A Negative View, 10 SAN DIEGO L. REV. 446, 456 (1973). This device, sometimes called creeping jurisdiction, would allow Latia to do indirectly that which it cannot do directly . Henkin , The Con- tinental Shelf, in FOURTH ANNUAL CONFERENCE OF THE LAW OF THE SEA INSTITUTE, THE LAW OF THE SEA: NATIONAL POLICY RECOMMENDA- TIONS 171, 175-76 (L. Alexander ed. 1969). Creeping juris- diction jeopardizes local, regi9nal, and international interests in the freedom of the seas. the Sea: Goldie, International Law of A Review of States ' Offshore Claims and Competences, 24 NAVAL WAR COLLEGE REV. 43, 52 (Feb. 1972) . The reality of the danger is manifest in Latia ' s past and present actions. Latia's 200-mile fisheries zone, although excessive, was at least limited in its allegation of sovereignty. In 1966, however, Latia shed any pretense of preserv- ing the limitation, and even today it purports to exercise full sovereignty over the entire 200-mile zone . Now another new claim , unfounded and vaguely defined, stretches across an unprecedented three hundred miles of high sea. The survival of the traditional freedoms of the sea in this extensive area is seriously threatened. Latia's past claims reinforce the probability that it is attempting to lay the foundation for a future claim to a 300-mile territorial sea. See Nelson, The Patrimonial Sea, 22 INT'L & COMP o L. Q. 668, 683 (1973). The prohibition against creeping jurisdiction protects the high 11 seas from such unilateral nationalization of seabed resources. R. SWIFT, INTERNATIONAL LAW 264 (1969). The effect of all nations' claiming territorial seas of two hundred miles would be to reduce vast areas of the high seas to national sovereignty. [See Appendices.) There are additional reasons for this Court to reject Latia's claim to a 200-mile territorial sea. Numerous multi- lateral declarations have affirmed the principle that no state may validly extend the limits of its territorial sea beyond twelve miles. ~., Santo Domingo Declaration, 11 INT'L LEG. MAT. 892 (1972); The Columbia--Mexico--Venezuela Declaration of 1973, 12 INT'L LEG. MAT. 570 (1973); The Bulgaria-Czecholovokia--Hungary--U.S.S.R. Declaration of 1972, 12 INT'L LEG. MAT. 215 (1973). Attempted extensions of terri- torial seas beyond twelve miles have been vigorously protested . Phleger, Recent Developments Affecting the Regime of the High Seas, in DEP ' T STATE BULL. 937 (June 6, 1955). Because of such protests, most states which formerly claimed territorial seas of two hundred miles have recanted, now declaring that they are exercising only limited jurisdiction . See 1 NEW DIRECTIONS IN THE LAW OF THE SEA 233 (S. Lay . R. Churchill, & M. Nordquist ed. 1973); 4 M. ~iITEMAN, DIGEST OF INTER- NATIONAL LAW 69 (1965). Even Latia has manifested insecurity in its position. On one hand it asserts sovereignty over Tract #1, while on the other hand it admits an obligation to the world community 12 which is inconsistent with its claim of total sovereignty. If Latia had exclusive sovereignty over Tract #1, it had no obligation to share the income from this area. By setting aside ten per cent of the profits from Tract #1, Latia tacitly admits that the tract is on the high seas. Since Tract #1 is outside Latia's jurisdiction, this Court should uphold Industria's right to mine that tract. C. Because Tract #1 is neither adjacent to Latia's coast nor exploitable, Latia's claim that its continental shelf extends to Tract #1 violates the Convention on the Continental Shelf and customary international law. The CCS stated that beyond the depth of two hundred meters, the limits of the continental shelf are to be determined by applying the criteria of adjacency and exploitability conjunctively. CCS art. 1. Tract #1 is neither adjacent to Latia's coast nor is it exploitable. The term adjacency was originally proposed by Frederico Garcia Amador, chairman of the International Law Commission, who stated that adjacency would not encompass extensions beyond 25 miles. Report of the 358th Meeting, 1 Y. B. INT'L L. COMM'N 136 (1956). This Court has recently taken the position that "by no stretch of the imagination can a point • • • say a hundred miles, or even much less, from a given coast, be regarded as 'adjacent' to it • • • • " [19691 I.C.J. 30. North Sea Continental Shelf Cases. 13 Tract #1 is no more exploitable than it is adjacent. Under any application of exploitability, Latia's claim to sovereignty over Tract #1 is invalid. This Court, as well as other authorities, has recognized that the 1958 Convention's definition of exploitability was not intended to authorize unlimited extensions of jurisdiction. Id. at 103; Sea-bed Comm . 83; 7 SAN DIEGO 488, 494. Latia has attempted to use the exploitability criterion · to claim jurisdiction over an area of the seabed 120 miles off its coast. To base the exploitability criterion on either Industria's present or Latia's future exploitative capabilities, would allow any state to extend its sovereignty to mid-ocean. Because Latia's technology is not sufficiently advanced to utilize the resources of Tract #1, Latia has no reasonable basis for asserting jurisdiction over the area. Latia ' s at- tempted extension of its continental shelf to Tract #1 is, therefore, just as unreasonable as an extension to mid-ocean: neither bears any relation to Latia's capabilities ' or needs. Permitting a coastal state to denominate the deep seabed as a continental shelf on the basis of its future capability or other nations' present capability to utilize shelf resources would be disastrous . When nations realized that sover- eignty could be obtained by simple proclamation there would be a massive rush to partition the high seas. national Regime for the Deep Seabed: Pardo, An Inter- Developing Law or De- veloping Anarchy?, 5 TEX . INT'L L. F. 204, 207 (1970). 14 Assuming, arguendo, that the test to be applied in determining exploitability is the technical ability of other states to exploit, Latia still cannot claim Tract #1. The ability to extract small quantities of minerals does not prove that bulk recovery is possible. J. ANDRASSY, INTER- NATIONAL LAW AND THE RESOURCES OF THE SEA 78 (1970). The measure of exploitative capability includes not only technical potential but also such practical limiting factors as the economics of the enterprise. leas t ~ ne MCDOUGAL & BURKE 690. At thousand square miles of seabed will be necessary to render the recovery of manganese nodules profitable. DIEGO 500. 7 SAN By this standard the maximum tract size granted under DOMA is too small to yield a profit • . DOMA § 2(c). Additionally, the cost of metals extracted from manganese .nodules will exceed that of land based sources for years to come. Emery, Geological Aspects of Sea-Floor Sovereignty, in THE LAW OF THE SEA 154 (L. Alexander ed. 1967). Exploitation is only proven possible when shown to be economically feasible. z. SLOUKA, INTERNATIONAL CUSTOM AND THE CONTINENTAL SHELF 104 (1966). Since extraction of nodules from - Tract #1 has not been proven to be profitable, Latia cannot successfully maintain that Tract #1 has been proven exploitable. If one ship- load of unrefined ore were deemed to be proof of exploitability, other states would attempt to follow Latia's lead. Subsequent extensions by Latia and other states would create vast areas which no one could develop and states with little or no coast 15 would be totally excluded from deep ocean development. U.N. & BED OF THE SEA 17. Prior to its seizure of Gatherer, Latia had no technological ability to exploit manganese nodules. The technical knowledge which Latia now possesses was seized illegally from Industria, and therefore Latia has no valid claim to technological ability. Assuming, arguendo, that this Court finds that Latia now possesses the technological ability to mine Tract #1, Latia still could not employ the exploitability criterion as a basis for extending its sovereignty. Latia cannot now extend sovereignty over Tract #1 because subsequent technological discoveries cannot be used as the basis for validating prior claims. Moreover, technological ability to exploit requires a showing of the capacity to ensure an effective long-range development of the claimed area. Because neither Ocean Mining Company nor Latia has proven Tract #1 to be exploitable, . Latia's assertion has no basis in international law. There- fore, this Court should find that Latia has no jurisdiction over Tract # 1. D. Because Latia's claimed 300-mile economic resource zone neither conforms to the 1958 Conventions nor bears an relation to Latia's ca abilities or needs the c a1m V10 ates 1nternat1onal law. International law does not recognize the economic resource zone concept employed by Latia. OF SEA RESOURCES 20 (1963). S. ODA , INTERNATIONAL CONTROL As a party to the 1958 16 Conventions, Latia is bound to recognize areas beyond its twelve-mile territorial sea as being high seas not subject to the jurisdiction of any state. CHS art. 2; CCS art. 3. Latia's claim to a three ' hundred-mile zone violates its treaty obligations and thus violates international law. Vienna Convention on the Law of Treaties, art. 26, done May 23, 1969, U.N. Doc. A/CONF,' 39/27. The purpose of the Geneva Conventions is to promote the orderly development of the oceans. North Sea Continental Shelf Cases, See 11 I.L.C. 2-4; (1 969) I.C.J. 92. Uni- lateral extensions based on eonomic resource zones undermine this purpose. Actions such as Latia's would subject the en- tire ocean floor to similar unjustified claims, thus violating principles espoused by the international community. G.A. Res. 2574, 24 U. N. GAOR, U.N. Doc. A/7834 (1969) . There is no essential difference between an economic resource zone and a contiguous zone. Under both the economic resource zone concept and the contiguous zone concept, coastal states would exercise limited jurisdiction for specific purposes over areas lying adjacent to their coasts. D. JOHNSTON & E. GOLD, THE ECONOMIC ZONE IN THE LAW OF THE SEA: SURVEY, ANALYSIS AND APPRAISAL OF CURRENT TRENDS, OCCASIONAL PAPER No. 17, at 1 (1973); CTSCZ art. 24. The economic resource zone concept alluded to by the InterAmerican Juridical Committee would permit a coastal state to exercise limited jurisdiction over adjacent coastal waters 17 for the regulation of fiscal matters. Inter-American Juridi- cal Comm., Opinion on the Breadth of the Territorial Sea [19661 O.A.S./OD O.E.A./Ser.l/VI.2 (English) CIJ-80, at 33 & n.49. This limited authority is identical to that which the CTSCZ grants the coastal state. CTSCZ art. 24(1). Latia's econo- ' mic resource zone, therefore, is nothing more than a contiguous zone. Since the CTSCZ expressly prohibits the establish- ment of such a zone beyond twelve miles, Latia's claim to a 300-mile economic resource zone i s unlawful. This Court has recognized that extensions of national jurisdiction over the ocean must conform to the 1958 Conventions and be reasonabl e in relation to the coastal state ' s particular needs. I.C.J. 50 , 51 . North Sea Continental Shelf Cases, [19691 Latia ' s actions do not guarantee the freedom of scientific research. Mr . Arvid Pardo , Malta's ambassador to the United Nations , pointed out that unilateral acts such as Latia's will probably interfere with the freedom of scientific resea rch and al l other traditional freedoms of the high seas . Pardo , An International Regime for the Seabed : Devel- oping Law or Developing Anarchy? , 5 TEX . INT ' L L. F. 204, 206 (1970). Latia ' s unlawful attempt to extend its jurisdiction has prevented Industria from exerc i sing its rights to the freedoms of scientific research , navigation , and exploitation. Latia's ~laims neither conform to the 1958 Conventions, nor bear any relation to Latia ' s capabilities or needs . Thus, Latia's actions are contrary to international law, and should 18 be so declared by this court. III. LATIA'S ACTIONS AGAINST INDUSTRIAN SHIPS VIOLATED INTERNATIONAL LAW. Latia ' s seizure of Industrian ships and its subsequent actions violated international law . lawful for two reasons: These actions were un- first, Latia initiated armed aggres- sion against Industrian ships; and second, Latia used excessive force following . an unlawful pursuit on the high seas. A. By initiating armed aqqression against Industrian ships on the high seas, Latia violated international law. No state may lawfully claim sovereignty over the high seas. CHS art. 2. Latia's unwarranted extension of its territorial sea is an indefensible attempt to usurp the freedom of all nations to use the high seas . Because Latia gave notice to the world that it would use force to further its unfounded claims , Industria was entitled to give its citizens a modicum of protection by arming Gatherer . Note , Se i zure of United States -Fishing Vessels-- The Status of the Wet War , 6 SAN DIEGO L. REV . 428, 439-40 (1 969). That these token arms were- not intended for aggres- sive use was demonstrated by Gatherer's refusal to retaliate against Latia's unprovoked attack . , Gatherer was engaged in lawful mining activities on the high seas when Interceptor appeared and demanded that Gatherer depart . Gatherer had the right to give notice by firing a 19 return warning shot that it would not willingly give up its rights on the high seas unless forced to do so. This Court has recognized that states are not bound to refrain from exercising lawful rights merely because they may be challenged or even resisted by coastal states. Corfu Channel Case (Merits), [19491 I.C.J. 29. Latia's use of force was excessive and unjustified on any grounds . A universally accepted doctrine of international law establishes that " a merchant ship flying the flag of a recognized state is immune from interference on the high seas by the ships of any nation other than its own. Le Louis [19171 2 Dods, 210-243; COLOMBOS, THE INTERNATIONAL LAW OF THE SEA S 333 (6th ed. 1967). Nevertheless, Interceptor attacked Gatherer without provocation, damaged the ship and injured some of its crew. Certainly the doctrine of self-defense cannot be invoked by Latia to defend its actions on the high seas. SCHWARTZENBERGER,INTERNATIONAL LAW 32 (1968). 2 G. Self-defense cannot be exercised against one who is acting lawfully. BOWETT, SELF-DEFENSE IN INTERNATIONAL LAW" 256 (1958). defense is a response to the act of aggression. MAN, DIGEST OF INTERNATIONAL LAW 979 (1965). D. Self- 5 M. WHITE- For the doc- trine to be invoked, the accused aggressor must be the first to act. In the absence of such an act there can be no self- defense. Because Industria committed no act of aggression Latia cannot validly assert a right to self-defense. U.N. CHARTER art. 51; Bowett, Collective Self-Defense Under the 20 United Nations, 32 BRIT. Y. B. INT'L L. 1955-56, at 130, 148 (1957). Latia's use of force, therefore, was unlawful. Furthermore, self-help cannot be used to resolve disputes over territory: [T)he territorial privilege is subject to curtailme nt in cases of dispute: the. claim to the privilege cannot be supported by self-help which would render the right , ~ post facto, extraterritorial, and serious breaches of the peace are not a justifiable means of upholding exceptional rights . I. BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 366 (2d ed. 1973). Territorial privileges over Tract #1 were in dispute. Latia wrongfully claimed full sovereignty, while Industria engaged in limited activities universally permitted on the high seas. Latia resorted to armed aggression against a merchant ship and a mining rig, thereby violating international law. B. Latia's unlawful pursuit of Carrier and use of excessive force against Gatherer entitle Industria to compensation for all damages. Latia's seizure and adjudication of Gatherer and Carrier's cargo violate international law . Where recognized responsi- bilities under international law are violated, municipal law is irrelevant. M. GREEN , INTERNATIONAL LAW 244-45 (1973). Even if Latia's actions are in compliance with its municipal law, reliance upon municipal legislation cannot validate actions otherwise invalid under international law. Under t he CHS hot pursuit may be commenced only within the territorial sea and then only after the pursued ship is 21 notified by visual or auditory signals. CHSart. 23. The only notice given Carrier occurred beyond Latia's claimed territorial sea, making Latia's pursuit and seizure direct violations of international law. Because no notice was given Carrier, as required by this convention, hot pursuit could not have been commenced lawfully. Furthermore, although Industria's mining operations had been in progress for several days, Latia waited until the first load of nodules had been recovered before commencing pursuit of Carrier. Even if Latia at one time had the right to pursue, its failure to take timely action constituted an abuse of rights which is a breach of international law. The substantial lapse of time between commencement of mining operations a~d the pursuit was unjustifiable . N. POULANTZAS , THE RIGHT OF HOT PURSUIT IN INTERNATIONAL LAW 209 (1969) [hereinafter cited as POULANTZAS). Therefore, Latia lost its right to rely on the doctrine of hot pursuit. Gatherer was outside Latia ' s territorial sea in an area beyond its continental shelf. Latia, therefore, had no jurisdiction to interfere with Gatherer's activities. Assum- ing, arguendo, that this Court finds that the actions took place within Latia's territorial sea or above its continental shelf , Latia's responses were unjustified. Only responses which do not involve the use of armed force, i.e. pacific reprisals, conform with Latia's obligations as a member of the United Nations. 2 G. SCHWARTZENBERGER, INTERNATIONAL LAW 58 22 (1968); U.N. CHARTER art. 51. A·s suming, further, that international law permits Latia to use force, nevertheless, Latia's actions were unlawful. Latia's positive reprisal by use of excessive force constituted a violation of international law, because the act must 'be in proportion to the wrong. LAW § 2 L. OPPENHEIM, INTERNATIONAL 389, at 140-41 (7th ed. H. Lauterpacht 1952) . A state may exert only the amount of compulsion necessary to achieve its ends . Id.Latia ' s unprovoked attack, which rendered the mining rig inoperative and injured its crew members, was excessive by any standard. Even if Industria's actions had been unlawful, Latia's use of unjustifiable force permits Industria to be indemnified for its costs a.nd damages. POULANTZAS 26~-65. Failure to observe a rule of international law gives a state a claim for satisfaction whether it be diplomatic in character or in the form of indemnity or reparation. J. STARKE, AN INTRODUCTION TO INTERNATIONAL LAW 20-21 (7th ed. 1972); ~ also CHS art . 23 (7). For the above reasons, this Court should award Industria return of the nodules, return of Gatherer, reimbursement of all fines and assessments, and compensation for all other costs including lost profits on the mining operation and prejudgment interest . POULANTZAS 265. The Court would also be justified in awarding Industria moral damages. Claim of the British Ship "I'm Alone" v. United States, Report of Commissioners, 29 AM. J. INT'L L. 326, 331 (1935); Naulila Incident 23 Arbitration 409, 2 U.N.R.I.A.A. 1012 (1928), 6 HACKWORTH, INTERNATIONAL LAW 154 (1943). C O ' N C L U S ION WHEREFORE, for , the reasons set forth above, Applicant respectfully prays that the International Court of Justice render its decision in favor of Industria, finding that: (1) Tract #1 is outside Latia's jurisdiction. (2) Latia ' s actions against Industrian ships violated the freedom of the seas. (3) Industria is entitled to the return of all confiscated property, reimbursement of all fines and assessments, compensation for lost profits, and moral damages. (4) Industria may exploit Tract #1 under a DOMA license. Respectfully submitted, Team No. 1 Agents fo~ Industria , / / / . "\-"r-'~,--",. , ... ' ClJ~;;- -~ I,," ....... " I I I" - J ..'''C, :;_.. I' I --1 ~ ........T"'-.......... I' ...... , \ '" \ \ \\ \.) ,...'<' \ , 4.. '- . ~ . s~ I.- ' '. . ...-:, ( DOMIN. REP, '. I' ok t· ...... PUERTO RICO . _ - , -", A1 - - ~ ~, V I / ".."" ~ ..("'LEEWARD / of r. ISLANDS" SEA:'~ / .tt 'I} ~,.,- -r<:.., ::."":.c........'" j'w t / I, /""' , - -....:-_....r.' ... /" / I ......... {V""~---3Il --t-'" \ .ft\. ..... _ -4..::-: ..... / I ....... \•~. . . . . . _ 1. ,.,'" , ... .. 1, '.. .. _ "., WINOWARD ISLANDS ,-.L. - / ,,- / \ ,'" ... // ~;:.., / . \- - - " , -/ I \ ) ~/ / I/'\ c:;z;;I_V'/ "I"'I \ , / :r\J ' "j- ....... , / /....-7 ~/ ......~~\ \ _"7'_ .j.,...... :•. / ,.. 1i~' :":""" ': ' . \ --- , \,,-" " CARIBBEAN r~·~.I~H .,.:,.~ 1/ , .. ' , ../ I -----j/ lo-. - .' I',""" .. " " ~_,,,- ~1// "..- --..;:-, ..... , .. ....... ~, ----,.'<""J ._ ..... - - - - ' / ',\ /....... II • '- - _ . - ...." ' / :JJ-..- H i.; ...• ..•." '- . VENEZU.El.A .~' -"> : .- . ,:-:~ .. ' ~, The Caribbean Sea and a Two-Hundred-Mile Limit B. BRITTIN . & L. WATSON, INTERNATIONAL LAW FOR SEAGOING OFFICERS 83 (3d ed. 1972) [A hypothetical division: The adverse effects of a universal 200-mile territorial sea, as claimed by Latia.) ... IV JAMAICA ~ HIGH SEAS -~~12MllES NICARAGUA o 110 WW 120 240 MILES The Caribbean Sea and a Twelve-Mile Limit B. BRITTIN & L. WATSON, INTERNATIONAL LAW FOR SEAGOING OFFICERS 80 (3d ed . 1972) [The desirable effects of allowing universal extensions to the maximum twelve-mile limit, as recognized by international law.] No. 1974-00 1 IN THE ' INTERNATIONAL COURT OF JUSTICE AT THE PEACE PALACE; THE HAGUE; NETHERLANDS March Terin, 1974 THE,','STATE OF INDUSTRIA, ', , Applicant: THE STATE OF LATIA, Respondent. On Submission to the .1nternationaf Court 'of Justice :'COUNTER~MEMORIAL FOR THE RESPONDENT :; ': , " : ,.' . . '. , ; , .' , "- ' . '", • .' • ' . , . ' ! " ,' , ': TEAM NO . .1 Agents fot Latia, I N D E X Page Index of Authorities ii Jurisdiction • • • • viii • • Questions Presented • ix • Statement of Facts • ix Summary of Argument • ix Argument and Authorities • 1 I. LATIA HAS SOVEREIGNTY OVER TRACT #1 UNDER INTERNATIONAL LAW A. International law does not prohibit Latia from exercising exclusive sovereignty over a 200-mile territorial sea. . . . . .. .. .. .. .. .. .. .. . 1 Latia's exercise of sovereignty over Tract #1 is justified under international law by the continental shelf doctrine .. .. .. .. .. . .. . .. .. .. . .. .. 9 'Latia' s establishment of a 300-mile economic resource zone is recognized under international law • • • • • • 16 .. B. C. II . 1 . INDUSTRIA BREACHED INTERNATIONAL LAW BY GRANTING A LICENSE WHICH AUTHORIZED THE VIOLATION OF LATIA'S SOVEREIGNTY OVER TRACT #1 .. A. B. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 20 The licensing of Tract #1 violates international law by not respecting Latia's territory and ignoring the purpose of the 1958 Conventions 20 Industria's breach of Latia's sovereignty violated both DOMA and international law, justifying Latia's actions in preventing mining operations ' and protecting its la~ful interests. 23 . . . . . . .. .. .. .. . .. .. . .. .. .. .. .. 25 Conclusion • .. ii I N D E X 0 F AUT H 0 R I TIE S Page Treaties and U.N. Resolutions Deep Ocean Mining Act (1973) DOHA § 1 . DOHA § 2(b) DOMA S 4 • • DOMA § 4 (c) • DOHA § 6 • 8 • .. 21 21, 23 • • • • • • • • • . 20 21, 22, 23 • 22 DOHA S 7 21 • Vienna Convention on the Law of Treaties, art . 2(1) (a), done May 23 , 1969, U.N. Doc. A/Conf. 39/27. Vienna Convention art . 26 .... ~ .. .. .. .. .. 8, 23 • • 23 Convention on the Territorial Sea and Contiguous Zone , done April 29 , 1958 , T . 1.A.S . 5639; 516 U.N . T.S. '2l5"5 " . .. .. . . . . . .. .. . .. . .. . 4 Convention on the Territorial Sea art. 1 8 Convention on the Territorial Sea art . 2 6, 8 Convention on the Territorial Sea art . 14 7 Convention on the Territorial Sea art. 16 - 7 Convention on the Territorial Sea art. 16 ( 1 ) 8 Convention on the Territor i al Sea art . 24. . . Convention on the High Seas, done .Apri1 29 , 1958 , . . .. 0\ .. . . . . 450 U.N.T.S . 82 .... . . 16 . Convention on the Continental Shelf, done April 28, 195 B, T. 1. A. S • No • 5578; 499 u. N:T:S . 311 Convention on the . .. 20 • • • • 9 Continental Shelf art. 1 • • • • • 9, 14, 23 iii Treaties and U.N. Resolutions (Cont.) Page Convention on the Continental Shelf art. 2(1) 10, 15 · Convention on the Continental Shelf art. 2(2) • U.N. CHARTER art. 2, para. 3 15 • 23 • • U.N. CHARTER art. 33, para. 1 • • • G.A. Res. 2749, 25 U.N. GAOR U.N. Doc. A/C./544 ·... (1970) •••••••••••.•... 23 • 21 Statutes Deep Seabed Hard Minerals Resources Act, S.2801, 92d Cong., 1st Sess . (1971) • • • ••••• ·.. 17 Cases North Sea Continental Shelf Cases, [1969] I.C.J. South West Africa Cases, [1966] I.C.J. Fisheries Case , 11 • • • [1951] I.C.J • • 2 • • • • • 6 • In the Matter of an Arbitration Between Petroleum Development (Trucial Coast) Ltd. and the Sheikh of Abu Dhabi, 1 INT'L & COMPo L. Q. 247 (1952) (full text rep'd). • • • • • • • • • ••••• 12 Treatises J. ANDRASSY , INTERNATIONAL LAW AND THE RESOURCES OF THE SEA (1970) • • • • • • • • • • • • • • • 6, 11 O. ASAMOAH, THE LEGAL SIGNIFICANCE OF THE DECLARATIONS OF THE GENERAL ASSEMBLY OF THE UNITED NATIONS (1966) • • • • • • • • . .. . . . 22 "\ W. COPLIN, THE FUNCTIONS OF INTERNATIONAL LAW (1966) • • • • • • . ... . ........... . 2 H. HALL, INTERNATIONAL LAW (Higgin's 8th ed. (1924) • e. • • • • • • • • • • • • • • • • • • •• 23 iv Treatises (Cont.) Page D. JOHNSTON & E. GOLD, THE ECONOMIC ZONE IN THE . LAW OF THE SEA: SURVEY, ANALYSIS AND APPRAISAL OF CURRENT TRENDS , OCCASIONAL PAPER No. 17, (1973) . • • • • • • . • • • 16, 18, 19 Laque, Deep Ocean Mining: Prospects and Anticipated Short-Term Benefits, in PACEM IN MARIBUS 131 (E. Borgese ed. 1972) ••••••••••• H. LAUTERPACHT, INTERNATIONAL LAW (E. Lauterpacht ed. 1970) .. . . . . . . . . . . . . . . . 5 .. ..... . 4 M. MCDOUGAL & W. BURKE, PUBLIC ORDER OF THE OCEANS (1962) . . . .. . .. .. .. . .. .. .. .. . . . . 8, 13 . 2 NEW DIRECTIONS IN THE LAW OF THE SEA (S. Lay, R. Churchill, & M. Nordquist ed. 1973) • • • 1 D. O'CONNELL , INTERNATIONAL LAW (2d ed. 1970) • 12 6 S . ODA , INTERNATIONAL CONTROL OF SEA RESOURCES (1963) . .... ...... " .. .... .. 14 1 L. OPPENHEIM, INTERNATIONAL LAW (8th ed. H. Lauterpacht 1955) •• • • • • • • • .. .. .. .. 24 2 L. OPPENHEIM, INTERNATIOl~AL LAW (7th ed . H. Lauterpacht 1952) • • • ••• •••• • 24 C . RONNING, LAW AND POLITICS IN INTER-AMERICAN DIPLOMACY (1963) • • • • • • • • • • • • • • 18 0 " .. 1 G. SCHWARTZENBERGER , INTERNATIONAL LAW (3d ed . 1957) . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 2 G. SCHWARTZENBERGER, INTERNATIONAL LAW (1968) 2 • 24 Z. SLOUKA , INTERNATIONAL CUSTOM AND THE CONTINENTAL SHELF (1968) • • • • • . . • • • • • • J. 'STARKE , AN INTRODUCTION TO INTER~ATIONAL LAW (7th ed . 1972) .. .. .. .. .. .. .. .. .. .. .. .. .. .. 4 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW (1965) 5 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW (1965) 10 .. .. 13 •• 7 24 v Periodicals Page Auburn ,T ~ih:;:e:-il'-i9r-:.7:;3~C::.o~n.::f~e:;:r~e~n:::c~e:.:-:o:::;n~t=h:;;e7'L~a:.:w:--;0<if~t2h=-e=-.::::s.::e~a in the Light of Current Trends in State Seabed Practice, 50 CANADIAN B. REV. 87 (1972) . . . . . • • 5, 14 . . . ..... Bernfeld, Developing the Resources of the Sea-Security of Investment, 2 INT'L. LAW. 67 (1967) . • . . . . • . . . . · . 2, Brown & Fabian, Diplomats at Sea, 52 FOREIGN AFFAIRS 301 (1974) • • • . • . • • • • • ·.. f;I 13 • • • • • Goldie, International Law of the Sea--A Review of States' Offshore Claims and Competences, 24 NAVAL WAR COLLEGE REV. 43 (Feb. 1972). 19 • •• 3 Heinzen, The Three-Mile Limit: Preserving the Freedom of the Seas, 11 STAN. L. REV. 597 (1959) ............ . 5 Knight, The Deep Seabed Hard Mineral Resources Act--A Neyative View, 10 SAN DIEGO L. REV. 446 (1973 ••.•••.•.•••••• • 17, 22 Lecuona, The E uador Fisheries Dis ute (A new approach to an old problem, 2 J. MARITIME L. & COMM. 91 (1970) •••••• .. 4 H. Lauterpacht, soverei~nty Over Submarine Areas, 27 BRIT. Y. B. INT L L. 1950, at 376 (1951) • • • 12 Laylan, Past, Present, and Future Developments of the Customar International Law of the Sea and Deep Seabed,S INT L LAW. 442 • • • 1 Report of the Australian Branch Committee on Deep Sea Mining, AUSTL. Y. B. INT'L L. 1968-69, at 149 (1971) . . . . . . . . . . . . . . . . . . 11 Note, Seizure of United States Fishing Vessels--A Status of the Wet War, 6 SAN ~EGO L. REV. 428 (1969) . . . . . . . . . . . . . . . . . 2 Shuman, Pacific Fisheries Conservation Conventions, 2 SYDNEY L. REV. 436 (1958) • • • • • • • • •• 2 vi Periodicals (Cont.) Page Young, The Develoeing Law of the Deep Seabed: American Att1tudes, 5 TEX. INT'L L. F. 235 (1958) • • • • • • • • • • .... • • • . • 11 Young, The Geneva Convention on the Continental Shelf: A First Impression, 52 AM. J. INT'L L. 733 (1958) •••••••• ....... 9, 14 Miscellaneous African States: Conclusions of the Regional Seminar on the Law of the Sea, 12 INT'L LEG. MAT. 210 (1973) • • • • • ..... . . COMMON TO STUDY THE ORG. OF PEACE, Twenty-First Report, THE UNITED NATIONS AND THE BED OF THE SEA (II) (1970). • • • • • • • • • • • • • • . . 19 10, 12 Declaration of Santo Domingo , 11 INT'L LEG. MAT. 89 2 (1972) • • . • • • . • • • • • • • 19 FOURTH ANNUAL CONFERENCE OF THE LAW OF THE SEA INSTITUTE, THE LAW OF THE SEA: NATIONAL POLICY RECOMMEDNATIONS 152 (L . Alexander ed. 1969) . . . . . . . . . . ... ~ . ...... . . 17 Inter-American Council of Jurists, Third Meetins, Doc. A/AC. 4/102, at 249 (1956) 3 Inter-American Council of Jurists, Third Meetins, Doc. A/AC. 4/Add. 1, at 252 (1956 ) • • 3 . · · · · · '. . . ····· Inter-American Council of Jurists, Third Meetins, Doc. A/CN. 4/102, at 249 (1956) • • • • · ·· • 1 Inter-American Juridical Comm., Opinion on the Breadth of the Territorial Sea, [1966] O.A.S. /OD 0.E.A./Ser.I/VI.2 (English) CIJ-80 • • • • • . 18 Int'l Law Comm'n, Report, 11 U.N. ~OR, Supp. 9, U.N. Doc. A/31S9 (1956) • • • • • • • • • • • • • 4, 7, 9, 13, 15, 21 11 INT 'L LEG. MAT 226 (1972) • ....... 24 vii Miscellaneous (Cont.) Page INTERIM REP. OF NAT'L PETROLEUM COUNCIL, July 9, 1968, at 6 • • • • • • • • • • • • ·... League of Nations Off. J., Doc . C. 196 . M.70.V , at 122 (1927) . . • . • • • . • • • • . 1 PUB. LAND. L. REV.COMM'N, STUDY OF OUTER CONTINENTAL SHELF LANDS OF THE UNITED •••• STATES pt. 2, (1st Rev . 1969) .. Santiago Declaration, U.N. Doc. ST/LEA/SER.8/6 , 223-24 (1952) • • • • • • • • • • • • • • . 11 • 5 • • 11, 14 ·. .. 24 U.N. GAOR, Rep. of the Comm. on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of Nat ' l Jurisd., Supp. 22, at 108, U.N. Doc. A/7622 (1969) ••••• , 17 U.N. GAOR A/5344/Add. 1, A/L.412/Rev. 2 (1962) 18 10 • 17 viii BEFORE THE INTERNATIONAL COURT OF JUSTICE MARCH TERM 1974 CASE NO. 1974-001 THE STATE OF INDUSTRIA, v. Applicant THE STATE OF LATIA , Respondent COUNTER-MEMORIAL FOR THE RESPONDENT J URI S D I C T ION The parties have agreed to submit this dispute to the International CouFtof Justice for its determination. ix o I. II. U EST ION S PRE SEN TED WHETHER LATIA HAS SOVEREIGNTY OVER TRACT II UNDER INTERNATIONAL LAW? WHETHER INDUSTRIA BREACHED INTERNATIONAL LAW BY GRANTING A LICENSE WHICH AUTHORIZED THE VIOLATION OF LATIA'S SOVEREIGNTY OVER TRACT II? o S TAT E MEN T F ACT S F The parties have stipulated the .facts before the Court. SUMMARY o F ARGUMENT Latia has sovereignty over Tract #1 under international law . International law does not prohibit Latia from exercising exclusive sovereignty over a 200-mile territorial sea. Latia's exercise of sovereignty over Tract #1 is justified under international law by the continental shelf doctrine. Because Latia has sovereignty over its continental shelf, Latia has lawfully exercised those rights necessary to ensure that sovereignty. Latia's establishment of a 300-mile economic resource zone is recognized under international law. Industria breached international law by granting a license which authorized the violation of Latia's sovereignty over Tract u. Industria's breach of Latia's' sovereignty justified Latia's \ actions preventing mining operations and protecting its lawful interests. ARGUMENT AND AUTHORITIES I. LATIA HAS SOVEREIGNTY OVER TRACT tl UNDER INTERNATIONAL LAW . A. International law does not erohibit Latia from over a 200-mile exercis~ng exclusive sovere~gnty terr~torial sea. In 1966, Latia lawfully extended the limits of its territorial sea. Its action is justified by the customary rule that territorial seas have no uniform limits. This custom- ary rule was codified by the 1958 Conference on the Law of the Sea. Latia's action is further justified by its conform- ity with the criterion by which any such extension must be judged: reasonableness. 1. Customary international law prescribes no uniform limits for territorial seas. The customary rule limiting the breadth of a territorial sea is founded on the criterion of reasonableness. Laylan, Pa st, Present, and Future Development of the Customary International Law of the Sea and Deep Seabed, 5 -INT'L LAW. 442, 444 (1971). Historically, the three-mile limit was widely applied because it adequately met the needs of earlier times. While the three-mile limit was adopted as a reasonable measure of self-defense, states motiva~ed by other needs tradi- tionally have acknowledged greater limits. Such limits have been recognized as being based on geographical, economic , biological, and security considerations. Inter-American 2 Council of Jurists, Third Meeting, Doc, A/CN. 4/102, at 249 (1956). The three-mile limit, which was never a universally applicable rule of international law, is no longer reasonable. No te, Seizure of United States Fishing Vessels--A Status of the wet War, 6 SAN DIEGO L. REV, 428, 430 (1969). Three-mile territorial seas no longer guarantee the security of coastal states against aggression by belligerent warships. 1 G. SCHWARTZENBERGER, INTERNATIONAL LAW 351 (3d ed. 1957). For centuries the three-mile limit has been based on the pre-supposition that ocean resources are inexhaustible. This miscon- ception is no longer tenable in view of modern technology. Shuman, Pacific Fishery Conservation Conventions, 2 SYDNEY L . REV. 436 (1958). Technological developments have opened the ocean floor to wholesale exploitation of resources to the point of exhaustion, rendering the three-mile limit obsolete. Bernfeld, Developing the Resources of the Sea--Security of Investment, 2 INT'L LAW. 67', 69 (1967). The traditional bases for restricted territorial-sea limits are no longer applicable because they do not meet the reasonable needs of coastal states , When, as in this, 'case, the basis for a rule no longer exists, the rule becomes invalid. See W. COPLIN, THE FUNCTIONS OF INTERNATIONAL LAW 13-18 (1966). Since the vast majority of nations cannot utilize the high seas as industrialized states can, 'the three-mile rule does not represent the interests of the world community and is contrary to international law. South West Africa Cases, [1966] 3 I.C.J. 248. Accordingly, the territorial seas of most coast- al states now exceed three miles. Presently, Latia is one of over eighty nations which have territorial seas extending beyond three miles. Goldie, International Law of the Sea--A Review of States' Offshore Claims and Competences, 24 NAVAL WAR COLLEGE REV. 43, 66 (Feb. 1972). Thus, Latia is not bound to follow the three-mile rule. 2. The 1958 Conventions codified the rule that international law prescribes no uniform limits for territorial seas . The conference at Ciudad Trujillo in 1956 is representative of the law concerning the limits of territorial seas existing prior to the 1958 Conventions. The conference noted a diversity of positions as to the breadth of territorial seas under international law. Inter-American Council of Jurists, Third Meeting, Doc. A/AC. '4/Add. 1, at 252 (1956). In the same year, the Inter-American Council of Jurists passed a resolution declaring that the three-mile limit was not a general rule of international law, and that enlargement of the territorial sea beyond three miles was justifiable. Further, each nation was to establish its territorial waters within reasonable limits, taking into account the geographical, geological, biological, and economic needs of its population. Inter- American Council of Jurists, Third "Meeting, Doc. A/AC. 4/102, , at 249 (1956). The 1958 Convention on the Territorial Sea and Contiguous Zone recognized that there are no uniform limits to the 4 territorial sea. Contiguous Zone, Convention on the Territorial Sea and ~ April 29, 1958, T.I.A.S. 5639; 516 U.N.T.S. 205 [hereinafter cited as CTSCZ]; Int'l Law Comm'n, Report, 11 U.N. GAOR, Supp. 9, U.N. Doc. A/3l59 (1956) [hereinafter cited as 11 I.L.C.]. This convention is the most successful codification of the law on territorial seas to date. H. LAUTERPACHT, INTERNATIONAL LAW 98 (E. Lauterpacht ed. 1970). The CTSCZ did not set any fixed limit on the breadth of territorial seas. This convention reflects the fact that a rigid delimitation would in itself be unreasonable because it fails to take into account the particular needs of individual c o astal states. Should this Court require Latia to refrain from extending the limits of its jurisdiction, the law of the sea would revert to pre-convention days when major maritime powers sought ' a rigid three-mile delimitation. then be free to exploit the ocean at will . They would Lecuona, The Ecua- dor Fisheries Dispute (A new approach to an old problem), 2 J. MARITIME L. & COMM. 91, 111-113 (1970). Reasonableness, the only viable standard for evaluating a state's actions, would be eliminated from international law. Thus , to grant Indus- tria's demands would render the convention meaningless by seriously undermining orderly development. 3. Latia's . 200-mile territorial sea is reasonable for the protection of · ~ts economic security. Developed states such as the U.S.S.R., Japan, and the U.S.A. have shown conspicuous irresponsibility and bad faith in their 5 exploitation of ocean resources. With their "floating canner- ies," developed states have been able to decimate whole species of fish within certain regions of the oceans. The Three-Mile Limit: Heinzen, Preserving the Freedom of the Seas, 11 STAN. L. REV. 597, 660 (1959). The near extinction of the blue whale is an example of their myopic disregard for the consequences of their irresponsible conduct. League of Nations Off. J., Doc. C. 196.M.70.V. , at 122 (1927). The attitude of such states toward non-living ocean resources is no different. Technological developments now enable countries such as Industria to strip rich areas of the seabed of all precious minerals. Auburn, The 1973 Conference on the Law of the Sea in the Light of Current Trends in State Seabed Practice, 50 CANADIAN B. REV. 87. 104-05 (1972). Because certain portions of the ocean contain richer deposits than others, states will be induced to travel great distances to exploit such areas. Developing coastal states cannot afford to acquiesce passively while mineral-rich hot spots, such as Tract #1 , lying adjacent to their coasts, are totally exhausted, merely because the international- community has failed to reach any agreement on the problem. Ocean Mining: Prospects and Anticipated Short-Term Benefits , in PACEM IN MARIBUS 131, 135 (E. Borgese ed. 1972). economic security is vital to the integrity. Laque, Deep m~intenance Latia's of its sovereign Latia has the right to protect its sovereignty by taking reasonable measures to ensure its future economic development. As pointed out in the Fisheries Case, the special 6 interests of the coastal state determine whether extensions of sovereignty will be justified under the criterion of reasonableness . Fisheries Case, [19511 I.C.J. 133. Latia's ex- tension of its sovereignty to the 200-mile limits meets the criterion of reasonableness. Lack of commun~ty rote st evidencesreco nition b t at Lat~a s c a~m ~s reasona the international e. Latia's declaration of sovereignty over its 200 - mile territorial sea was not protested by any state . This lack of pro- test is strong evidence that Latia ' s action was reasonable and in conformity with international law. INTERNATIONAL LAW 421 (2d ed . 1970). 1 D. O'CONNELL, For example , the Inter- national Court of Justice found that t he United Kingdom's failure to protest Norway's declaration of territorial sea warranted Norway ' s enforcement of its system against the United Kingdom. Fisheries Case, [19511 I.C.J . 139. Such declarations, when not followed by protest , are the key to perfe cting title under international law. J. ANDRASSY, INTERNATIONAL LAW AND THE RESOURCES OF THE SEA 57 (1970) . Unprotested declarations, such as Latia ' s territorial sea proclamation in 1966, are proof of conformity with international law . Id. Latia reasonably exercised sovereign rights over its territor~al sea ~n conform~ty w~th ~nternat~onal law. The CTSCZ permits a littoral s~ate to exercise total sov- ereignty over a belt of sea adjacent to its coast described as a territorial sea. CTSCZ art . 2. For jurisdictional purposes, the control exercised by the littoral state over this area is 7 no different from that which is exercised over its land territory. 11 I.L.C . 12. Latia's actions have effectively demonstrated its exercise of territorial authority over Tract #1. Latia gave ample no- tice to the international community that it would exercise sovereign rights over Tract #1 by publishing its proclamation in 1966. This proclamation formally codified Latia's pre-exis- tent right to exercise sovereignty over its 200-mile territorial sea. Physical presence is not required for Latia's occupation to be effective bec~use such ocean areas are not readily susceptible to this type of control. DIGEST OF INTERNATIONAL LAW 743 (1965). 4 M. WHITEMAN, In 1973 , when Latia's territorial seas were violated by Industrian ships, Latia lawfully exercised its sovereign rights. The CTSCZ expressly grants a coastal state the right to regulate passage of ships within its territorial sea and to classify such passage as either innocent or non-innocent. CTSCZ art . 16. Latia, as a coastal state, may take the steps necessary to protect its interests by curtailing passage of foreign ships which do not comply with Latia's laws and regulations. CTSCZ art. 14, 11 I.L.C. 19. Because Latia has territorial sovereignty over Tract #1, its right to regulate and prohibit activities concerning the tract is recognized by international law. 11 I.L.C . 19. Latia published by proclamation that no ship could enter its territorial sea for the purpose of exploitation and related activities. This proclamation provided reasonable 8 notice to countries licensed under Deep Ocean Mining Act [DOMAI that any attempts to exploit Tract #1 would be opposed by force if necessary. By their actions, Industrian ships licensed under DOMA left Latia no choice but to take the measures necessary to enforce its regulations. Passage within a coastal state's territorial sea is never innocent when it violates that state's regulations. M. MCDOUGAL & W. BURKE, PUBLIC ORDER OF THE OCEANS 253 (1962) [hereinafter cited as . MCDOUGAL & BURKEl. Industria's ships disregarded Latia's published proclamation by engaging in recovery operations on Tract #1 . This disregard removed any doubt that i ts ships were engaged in non-innocent passage . The CTSCZ authorizes Latia to take necessary measures to prevent the non-innocent passage of Industria's ships within Latia's territorial sea. CTSCZ art . 16(1). Thus , Latia ' s seizure and subsequent actions concerning Carrier and Gatherer are justified under international law. Latia and Industria are both parties to the 1958 CTSCZ, '.:md are therefore bound to it under the doctrine of pacta sunt servanda . Vienna Convention on the Law of Treaties, art. 26, done May 23, 1969 , U.N. Doc . A/Conf. 39/27 [hereinafter cited as Vienna Conventionl. Latia adhered to the CTSCZ by properly proclaiming its sovereignty over its territorial sea and exercising the " ) urisdiction granted to it by the CTSCZ . Industria violated the CTSCZ by authoriz- ing its ships to invade Latia ' s territorial sea for the noninnocent purpose of mining its seabed. CTSCZ arts. 1, 2. 9 Industria's violations of its obligations under the CTSCZ are a violation of international law. On the basis of these facts, this court has sufficient evidence to deny all of Industria's demands. B. Latia's exercise of soverei~nty over Tract 11 is justified under internat~onal law by the continental shelf doctrine. Latia's exclusive sovereignty over the seabed and subsoil of Tract #1 is consistent with the 1958 Conventions. Further- more, this sovereignty is justifiable by the natural prolongation rule. Latia has sovereignty over any area of the seabed and subsoil adjacent to its coast which is proven to be capable of exploitation. Tract #1 is such an area, and is with- in Latia's control. Latia's a~plication of the exploitability criterion in dewith the 1958 limitin~ ~ts continental shelf is consistent Convent~on on the Continental Shelf. The 1958 Convention on the Continental Shelf codified the limits of .the continental shelf. Shelf, ~ Convention on the Continental April 28, 1958, T.I.A.S. No. 5578; 499 U.N.T.S. 311 [hereinafter cited as CCS). Because geographic realities alone are not a suitable standard, the CCS decided that the outer limits were to be determined by the criteria of exploitability and adjacency. CCS art. 1; 11 I.L.C. 41. The exploitability criterion employed by the CCS permits littoral states to exercise jurisdiction off their coasts to any depth which currently admits of exploitation by any nation in the world. Young, The Geneva Convention on the 10 Continental Shelf: ' 733, 735 (1958). A First Impression, 52 AM. J. INT'L L. Exploitability, then, is determined by the state of the world's technology and does not depend on solely geographical definitions of continental shelf. COMM'N TO STUDY THE ORG. OF PEACE, Twenty-First Report, THE UNITED NATIONS AND THE BED OF THE SEA (II) 16 (1970) cited as U.N. & BED OF THE SEAl. [hereinafter The CCS declares that the -coastal state's sovereignty does not depend on actual occupation, exploitation, or upon any proclamation by the coastal state. CCS art. 2 (1). Thus, Deep Ocean Mining's operations are sufficient to prove the exploitability of Latia's continental shelf. Z. SLOUKA, INTERNATIONAL CUSTOM AND TEE CONTI- NENTAL SHELF 106 (1968). The framers of the CCS recognized that the limits of the , continental shelf as defined by the convention extend beyond the 200-meter isobath. 11 I.L.C. 41-42. The report of the United Nation's Sea-bed Committee proposed that the continental shelf extend to 2,500 meters or 100 miles, whichever encompasses the greater area. 24 U.N. GAOR, Rept. of the Comm. on the Peaceful Uses of the Sea-bed and the Ocean Floor Beyond the Limits of Nat'l Jurisd., Supp. 22, at 108, U.N. Doc. A/7622 (1969) [hereinafter cited as Sea-bed Comm.l. This proposal demonstrates that the present trend in the world community is to define continental shelves to include areas at depths even greater than that of Tract #1. Under the CCS and consistent with modern practice, Tract #1, therefore, is well within Latia's continental shelf. 11 Alternatively, under the natural prolongation rule, Latia has control over the submerged land mass extending beyond and including the area of Tract #1. This Court has referred to the natural prolongation rule as "the most fundamental of all the rules of law relating to the continental shelf, enshrined in Article 2 of the Geneva ~onvention, .. I.C.J. 22. This rule gives the coastal state exclusive sover- ." North Sea Continental Shelf Cases, [1969] eignty over those areas which are a continuation of its continental land mass .' Id . The continental terrace, extend- ing to the ocean floor, is composed of the borderlands, slopes, and at least the landward portion of the continental rise. 1 PUB. LAND L . REV . COMM'N , STUDY OF OUTER CONTINENTAL SHELF LANDS OF THE UNITED STATES pt. 2, at 1 (1st Rev. 1969) [hereinafter cited as 1 LAND L. REV.]. The underlying rock structure of the continental land mass and the continental terrace are identical . J . ANDRASSY , I NTERNATIONAL LAW AND THE RESOURCES OF THE SEA 170 (1970). Coastal nations, there- fore , have exclusive jurisdiction over the resources of the continental land mass seaward to where that land mass meets the abyssal ocean floor . INTERIM REPORT OF THE NAT ' L PETRO- LEUM COUNCIL, July 9 , 1968 , at 6; Young , The Developing Law of the Deep Seabed: American Attitudes, 5 TEX . INT ' L . L. F. 235 (1969). Under the natural prolongation \ rule , the sovereignty of the littoral state in many instances will extend to depths of four to five thousand meters. Report of the Australian Branch Committe.e on Deep Sea Mining, AUSTL . Y. B. 12 INT'L L. 968-69, at 149 (1971). Consequently, at a depth of 2,100 meters, Tract #1 is well within the acceptable limits. Recent aeplications of the continental shelf doctrine prove that Lat~a's actions conform with customary and conventional international law. Under existing international law there are no clear geographical limits to the continental shelf other than technology and adjacency. U.N. & BED OF THE SEA 16. As of 1973, .twenty-two parties to the CCS employed these criteria to extend the outer margins of their continental shelves beyond 200 meters. Latia's exercise of sovereignty over its con- tinental shelf is consistent with that of forty-five other nations. 2 NEW DIRECTIONS IN THE LAW OF THE SEA 871 (S. Lay, R. Churchill, & M. Nordquist ed. 1973). Such sovereign rights over adjacent submarine areas are now part of custornary international law. H. Lauterpacht, Sovereignty Over Submarine Areas, 27 BRIT. Y. B. INT'L L. 1950, at 376, 431 (1951). International law recognizes Latia's ability as a coastal state to most effectively utilize its continental shelf. Id., at 407. Competition for the most economical deposits will promote claimjumping, piracy, and related problems. The only realistic approach to rational, orderly exploitation \ of submarine resources is for this Court to allow Latia, as a coastal state, to control its continental shelf. In the Matter of an Arbitration· Between Petroleum Development 13 (Trucial Coast) Ltd. and the Sheikh of Abu Dhabi, 1 INT'L & COMPo L. Q. 247 (1952); MCDOUGAL & BURKE 639. Although Latia exercised soverei~nty only in accordance with its reasonable needs, ~t has the right to exercise sovereignty over the subsoil of its continental shelf to mid-ocean. Following the conference at Ciudad Trujillo in 1956, the International La~ Commission convened to develop a definition of the limits of the continental shelf for the 1958 conference at Geneva. The exploitability criterion promulgated at Ciudad Trujillo was adopted by the commission in spite of the argument that it would dangerously impair the stabi lity of any limits adopted. 11 I.L . C. 41 . The decision of the commission , and later the CCS , to reject the argument and to adopt the exploitability criterion has led to the conclusion that it was the objective of the CCS to divide the beds of the seas among the coastal nations . Bernfeld, Developing the Resources of the Sea--Security of I nvestment , 2 INT'L LAW. 67 , 72 (1967). This conclusion is reinforced by the decision of the International Law Commission to depart from a geographical concept of the continental shelf in favor of a legal definition; i.e. , exploitability. 11 I.L.C. 41. The term continental shelf is thus \ found to be purely notional , since the commission made it clear that it was to apply even in areas where there is no geographical shelf . 11 I.L.C. 41-42; J. STARKE , AN INTRODUCTION 14 TO INTERNATIONAL LAW 226, 227 (7th ed. 1972). Under the legal definition of the continental shelf, which was adopted by the CCS, Latia's exercise of jurisdiction is limited only by technology. Accordingly, international law has recognized that all of the world's oceans are subject to national appropriation. REV. 21 n.79. 1 LAND L. Under Article 1 of the CCS every coastal nation would be able to assert rights outward from its coast to the maximum depth of exploitation reached anywhere, regardless of its own capabilities or local conditions. Shelf: (1958) • Young, The Geneva Convention on the Continental A F~irst Impression, 52 AM J. INT' L L. 733, 735 Under the CCS's definition , the continental shelf extends or is capable of extending to all submarine areas underlying the high seas. 1 LAND L. REV. 21. It has been argued that the exploitability criterion was never intended to permit continental shelves to extend to mid-ocean. Even if this argument were tenable, the CCS has rejected it by legally dividing the entire ocean floor among the coastal states. S. ODA, INTERNATIONAL CONTROL OF SEA RESOURCES 167 (1963). Thus, under international law Latia has the right to extend its sovereignty to any point proven exploitable by any member of the international community. Nations now have the capability to mine mid-ocean basins. Auburn, The 1973 Conference on the Law of the Sea in the Light of Current Trends in State Seabed Practice, 50 15 CANADIAN B. REV. 87, 103 (1972). Latia could, there- fore, exercise sovereignty over the subsoil of the high seas to mid-ocean. Nevertheless, Latia has made only a limited extension suited to its needs as a developing nation. Since Latia has the right to extend its continental shelf to mid-ocean, Latia ' s extension to an area only 120 miles off its coast cannot be deemed either unreasonable or contrary t o international law. Because Latia has sovereignty over its cont i nental shelf it may exercise those rights necessary to ensure that sovereignty. A coastal state has all rights necessary to control the exploitation of its continental shelf . Included is the right to prevent and punish violations of the state's regulations. 11 I.L.C. 42. No other state may engage in exploitation or make claims to Latia's continental shelf without Latia ' s express consent , regardless of whether Latia is actually exploiting its shelf . CCS art . 2(1), (2) • Preventing ships licensed under DOMA from mining on Latia's continental shelf was a valid exercise of Latia ' s sove reign authority over Tract #1 . For the above reasons, this Court should deny Industria ' s demands for return of Gatherer , and reimbursement of fines and costs. Furthermore, this Court should hold that Latia ' s actions were a lawful exercise of its rights over the continental shelf. 16 C. Latia's establishment of a 300-mile economic resource zone is recognized under international law. Latia's economic resource zone is recognized under international law and conforms with the rights expressed in several multilateral proclamations. Latia may exercise limited control over its economic resource zone. This control applies only to the resources of the sea, seabed, and subsoil without affecting the freedom of navigation or other uses of the ocean. Latia's economic resource zone is recognized under international law. The economic resource zone concept as recognized under international law establishes extensive maritime zones beyond territorial limits within which the coastal . states may exercise preferential rights with respect to resources. D. JOHNSTON & E. GOLD, THE ECONOMIC ZONE IN THE LAW OF THE SEA: SURVEY, ANALYSIS AND APPRAISAL OF CURRENT TRENDS, OCCASIONAL PAPER No. 17, at 1 (1973) GOLD]. [hereinafter cited as JOHNSTON & The concept of the contiguous zone under Article 24 of the CTSCZ should not be confused with the economic resource concept. The economic resource zone extends beyond the twelve-mile limitation of the contiguous zone. More- over, the contiguous zone is limited by the CTSCZ to the "prevention of infringement of customs, fiscal, immigration or \. sanitary regulations", while the economic resource zone serves to protect a coastal state's offshore resources. CTSCZ art. 24(1). 17 To provide for coastal state's economic security, Assembly Resolution 1803 (XVII) would permit exploitation of a developing state's resources only by that state. 17 U.N. GAOR A/5344/Add. 1, A/L.412/Rev. 2 (1962). DOMA and other reciprocal treaties between developed nations threaten a littoral state's resources because areas adjacent to the developing state's coast could be licensed under such agreements. Proposed legislation in the United States of America, the Deep Sea Hard Mineral Resources Act, S.2801, 92d Cong., 1st Sess. (1971). Legislation of this type leaves Latia and other developing states no choice but to extend economic resource zones two hundred miles or more . Knight, The Deep Seabed Hard Mineral Resources Act--A Negative View , 10 SAN DIEGO L. REV. 446 , 454-55 (1973). Preservation of economic security requires the monitoring of offshore activities which may jeopardize a coastal state's utilization of mineral resources lying reasonably beyond its continental shelf . FOURTH ANNUAL CONFERENCE I OF THE LAW OF THE SEA INSTITUTE, THE LAW OF THE SEA: NA- TIONAL POLICY RECOMMENDATIONS 152 (L . Alexander ed. 1969). Latia's economic resource zone conforms with the rights expressed in several multilateral declarations. A customary rule of law has developed through multilateral conventions and declarations recognizing the rights of a littoral state to establish an economic resource zone. Latia's establishment of a 300-mile zone over which it may exercise jurisdiction for limited purposes is not without precedent 18 in international law. Although not so denominated, the economic resource zone concept was employed in the late 1930's. In 1939, several American republics concluded the Declaration of Panama, which proclaimed a 300-mile security zone to protect against aggression by belligerent powers. Inter-American Juridical Comm., Opinion on the Breadth of the Territorial Sea, (1966) O.A.S./OD O.E.A./ Ser.l/VI.2 (English) CIJ-80, at 24, 28. Both this zone and Latia's economic resource zone serve to protect coastal states from external aggression. Latia's right as a coastal state to establish such a zone is considered to be an inherent right of a coastal state under international law. C. RONNING, LAW AND POLITICS IN INTER-AMERICAN DIPLOMACY 108 (1963). In 1952, several Latin American states proclaimed their rights to establish maritime zones extending not less than two hundred miles from their coasts. Santiago Declaration, U.N. Doc. ST/LEA/SER.B/6, 723-24 (1952). These zones are essentially the same as Latia's in that they are subject to less than complete territorial jurisdiction. The basis for the economic resource zone concept was recognized at the U.N. at Geneva in 1964. Conference on Trade and Development JOHNSTON & GOLD 4 & n.16. This conference noted the economic difficulties, trade disparities, and living inequalities of developing nations~ and contrasted them with the affluence, economic supremacy, and trade monopolies of the developed countries. Id. at 4. These considerations are reflected by a resolution on territorial seas adopted by 19 the Organization of African Un!ty which endorsed a recommendation made by the Scientific 'C ouncil for Africa. This or- ganization declared that 212 nautical miles would constitute the national economic limit in the oceans and seas surrounding Africa. Id. at 6. In 1972, eighteen African states at a seminar on the law of the sea also endorsed this economic resource zone concept. African States: Conclusions of th~ , Regional Seminar on the Law of the Sea, 12 INT ' L LEG. MAT. 210 (1973) . In June of the same year, ten Caribbean states adopted a similar version of the economic resource zone concept. Declaration of Santo Domingo, 11 INT'L. LEG. MAT 892 (1972) . In 1973 , seventy-six states met in Algeria and recognized the economic resource zone concept. Brown & Fabian , Diplomats at Sea, 52 FOREIGN AFFAIRS 301 , 307 (1974). These proclamations consistently state that the breadth of the economic resource zone is to be determined by individual nations on the basis of their regional resources . Consequent- ly , Latia's economic resource zone is consistent with the views expressed by these multilateral declarations . Complying with the express practices of the world community, Latia's action in proclaiming an economic resource zone is a lawful exercise of its rights under international law. This Court, therefore, should formally recognize Latia's economic ··; resource zone as conforming with international law. 20 II. INDUSTRIA BREACHED INTERNATIONAL LAW BY GRANTING A LICENSE WHICH AUTHORIZED THE VIOLATION OF LATIA'S SOVEREIGNTY OVER TRACT #1. A. The licensing of Tract #1 violates international law by not respecting Latia's territory and ignoring the purpose of the 1958 Conventions. Legislative acts, such as DOHA, do not violate international law until applied unlawfully. Industria's licens- ing of Tract #1 violated international law for the following reasons: first, it subjects the high seas to sovereign- ty; second, it allows mining within another state's territorialsea; and third, it is contrary to the purpose of the 1958 Conventions. By licensing Tract #1 pursuant to DOHA, Industria has violated international law and rendered DOMA unlawful . DOMA, as a sovere~gnty 0 Industria, sub"ects the hi h seas to the ~n v~olat~on of ~nternat~onal l~censees law. The High Seas Convention states that no nation may validly purport to subject any part of the high seas to its sovereignty. Convention on the High Seas, done April 29, 1958, 450 U.N.T.S . 82 [hereinafter cited as CHSj -. Yet, Section 4 of DOMA gives the Secretary the authority to grant exclusive rights to licensees to develop areas of the high seas. purporting to subject these licensed areas to their By sovereign~ ty, DOMA licensees are in direct violation of the CHS. Be- cause Latia does not purport to exercise sovereignty over any part of the high seas, its right to mine is protected by international law as one of the freedoms of the seas. 21 See 11 I.L.C. 24. DOMA is unlawful because it allows mining within another state's territorial sea. Under Section 2(b) of DOMA, licensees may mine areas within the territorial seas ofa coastal state which has not extended the limits of its continental shelf to the outer limits of its territorial sea. By failing to restrict licensees to areas outside both the territorial sea and continental shelf as required by the Geneva Conventions, DOMA authorizes mining within another state ' s territorial sea. Pursuant to this provision, Industrian ships invaded Latia's territorial sea ,and began mining operations. DOMA is contrary to the purpose of the 1958 Conventions because ~t underm~nes the orderly development of the oceans and establishes an illusory trust. The purpose of the 1958 Conventions was to promote good order in ocean development. See 11 I.L.C. 2-4 . the purpose of these conventions. DOMA violates Although Section 1 of DOMA 2urports to make this agreement an interim measure, Sections 4(c) and 7 demonstrate that DOMA licenses are to remain in effect regardless of any future international regime. These provisions of DOMA directly contradict United Nations Resolution 2749 (XXV) which declares that no state may exercise or acquire rights with respect to the high seas or its resources \ incompatible with the forthcoming international regime. Res. 2749, 25 U.N. GAOR, U.N. Doc. A/C./544 (1970). G.A. A unani- mous resolution of this type is a strong indication of the 22 international public policy of orderly ocean development which DOMA ignores. O. ASAMDAH, THE LEGAL SIGNIFICANCE OF THE DECLARATIONS OF THE GENERAL ASSEMBLY OF THE UNITED NATIONS 7 (1966). Moreover, by failing to restrict the number of licenses available to any licensee, Section 4(c) of DOMA allows block licensing. This licensing would undermine the orderly devel- opment of the oceans by encouraging races to grab the most favorable mining sites. Knight, The Deep Seabed Hard Mineral Resources Act--A Negative View, 10 SAN DIEGO L. REV. 446, 497 (1973). The effect of DOMA-type treaties is to encourage technologically advanced states to band together to the detriment of developing states with little or no mining capability. Section 6 of DOMA is self-serving in that it purports to establish a fund exclusively for assisting the reciprocating states: realistically, it assists no state. This fund is an illusory trust which ignores the community of developing nations. While DOMA purports to place ten per cent of all tax revenues from licenses in trust for reciprocating developing states, the amount deposited is limited to that amount contributed by other developed states per license. Thus, if any developed state which has been issued a license fails to deposit funds, all other DOMA states are released from their obligations to deposit any funds in trust. Furthermore, the trust fund under DOMA consists of only ten per cent of tax revenues, whereas ten per cent of total gross production would 23 be distributed to the world community under Latia's proThe effect of DOMA's illusory trust is to create a posal. cartel of industrialized nations bound by mutual selfinterest. B. Industria's breach of Latia's soverei~nt~ violated both DOMA and international law, just1fY1ng Latia's actions in preventing mining operations and protecting its lawful interests. Assuming , arguendo, that DOMA is valid, Industria violated its provisions • .· Industria violated both Section 2 (b) of DOMA and Article 1 of the CCS by ignoring the exploitability criterion. Consequently, Industria licensed an area which was on Latia's continental shelf. The illegality of Industria's action , coupled with Latia ' s immediate protest and subsequent seizure of ships precludes any possible prescriptive claim by Industria. 1924). H. HALL, INTERNATIONAL LAW 143 (Higgin's 8th ed. Although DOMA permits its members to enact domestic legislation, DOMA itself is a multilateral convention. Convention, art . 2(1) (a). rule of pacta ~ Vienna Therefore, Industria violated the servanda by breaching its preexisting treaty obligations under both DOMA and the CCS. U.N. CHARTER art . 2, para . 3 ; Vienna Convention on the Law of Treaties, art. 26 , done May 23 , 1969 , U.N. Doc. A/Cong . 39/27. By refusing to submit to arbitration and continuing its course of action despite Lat i a ' s pr.otests , Industria violated its duty to arbitrate under both DOMA Section 4(c) and the United Nations Charter. U.N. CHARTER art. 33 , para . 1. Latia's protest gave effective advance notice to Industria that Latia 24 would resort to self-help if necessary, thus shifting the burden to Industria to submit this dispute to arbitration before self-help became necessary. 2 G. SCHWARTZENBERGER, INTERNATIONAL LAW 32 (1968). In January, 1973 , the General Assembly unanimously passed a resolution expressly condemning actions aimed at coercing, directly or indirectly, other states engaged in the exercise of their sovereign rights over natural resources. 11 INT'L LEG. MAT. 226 (1972). Yet in March, 1973, Industria engaged in coercive economic aggression in violation , of Latia ' s sovereign rights over its natural resources. M. WHITEMAN, DIGEST OF INTERNATIONAL LAW 831 (1965) . See 5 This aggression justified Latia ' s actions in preventing the mining operations and protecting its lawful interests. Because Carrier was engaged in economic aggression within Latia's territorial sea, its passage was non-innocent. Accordingly, Latia's pursui't of Carrier , initiated within its territorial sea , was lawful. 1 L . OPPENHEIM , INTERNATIONAL LAW § 266 , at 604 (8th ed . H. Lauterpacht 1955) . The seizure of Ca r ri e r and subsequent adjudication of t he nodules from Tract #1 were justified as a lawful exercise of Latia's sovereign jur i sdiction . For the same reasons, the seizure and adjudication of Gatherer within Lat i a's territorial sea were valid exercises of Latia's police P9wer . The disposition of captured vessels which have violated Latia's laws is strictly a municipal matter which Latian courts may settle according to their own discretion. 2 L . OPPENHEIM, INTERNATIONAL LAW 25 § 434 (7th ed. H. Lauterpacht 1952). Industria, which vio- lated both international and Latian law, is entitled to no relief from this Court. CON C L U 5 ION WHEREFORE, for the reasons set forth above, Respondent respectfully prays that the International Court of Justice render its decision in favor of Latia, finding that: (1) Latia lawfully exercised sovereignty over its territorial sea, continental shelf , and economic resource zone. (2) Latia is entitled to retain possession of Gatherer and Carrier's cargo. (3) Latia is entitled to conduct deep ocean mining operations in any area subject to its sovereignty and even beyond. (4) Industria committed a breach of international law by violating Latia's sovereign rights over Tract #1. Respectfully submitted, Team No. 1 Agents for Latia