1973 PHILIP C, JESSUp INTERNATIONAL LAv] f100T COURT
ON BEHALF OF APPLICANT Nm RESPO~IDENT,
r~EPTUNIUS \/, ATLANTICA
CAROLYN ELAINE BOZE
DONALD B, COCHRAN
CLAUD
JOHN
H, DRINNEN
R,
RICI-IARD
HOllUMS
L,
HO\-llEll
~1~1()RII\LS
NO. 1973
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE, THE HAGUE, NETHERLANDS
THE STATE OF NEPTUNIUS,
Applicant
I
v.
THE STATE OF ATLANTICA,
Respondent
MARCH TERM
1973
On Submission to the
International Court of Justice
MEMORIAL FOR THE APPLICANT
TEAM NO. 8
February 16,1973
Agents for Neptunius
I NDEX
Page
Index to Citations -
ii
Jurisdiction - - - -
1
Questions Presented-
2
Statement of Facts - -
2
Summary of Argument- -
2
Argument and Authorities -
3
1.
ATLANTICA'S PROSECUTION OF THE POSEIDON'S CAPTAIN VIOLATED INTERNATIONAL LAW - - - - A.
B.
II.
The prosecution derogated a bilateral fishing agreement between Atlantica and Neptunius- - - - - - - - - - - - - - - - -
3
Atlantica's interference with the freedom
of the high seas violated international law
5
THE ATLANTICA FISHERIES ACT OF 1971 CREATED AN
UNLAWFUL FISHERIES ZONE - - - - - A.
B.
C.
3
6
The 1958 Geneva Conference on the Law of the
Sea did not recognize the exclusive con~rol
of fisheries by a coastal state beyond territorial waters - - - - - - - - -
6
The general practice of nations is to accept
and respect reasonable zones- - - - - -
9
Atlantica's unilateral prescription of th~
resources of the high seas violates international law- - - - - - - - - - - - - - -
- 15
,III.'THE ATLANTICA FISHERIES RESEARCH
ACT OF 1971 WAS AN UNLAWFUL IMPOSITION ON THE FREEDOM OF THE HIGH
"SEAS- '-
A.
B.
-
- '-
-
-
-
-
-
-
-
-
-
-
15
The right to research ,on the high seas is well
established in international law- -
15
Neptunius has a right and a duty to conserve
the fisheries of the contested area by scientific research- - - - - - - - - - - - - - -
16
Conclusion- - - - - - - - - - - - - - - - - - - - - - - -
i
18
I N D E X
T 0
CIT A T ION S
'treaties
Convention on the Continental Shelf, April 19, 1958,
499 U.N.T.S. 311 - - - - - - - - - - - - _7, 16
Convention on Fishing and Conservation of the Living
Resources of the High Seas, April 29, 1958, 559
U.N.T.S. 285 - - - - - - - - - - -
- - - -
8
Convention on the High Seas, April 29, 1958, 450
U.N.T.S. 82- - - - - - - - - - - - - - 5, 6, 8, 9, 15
Convention on the Territorial Sea and Contiguous
Zone, April 29, 1958, 516 U.N.T.S. 205
Vienna Convention on the Law of
1969, U.N. Doc. A/CONF.39/27
May 23,
- - - - - - - -
Tre~ties,
6
3-6
Declaration of Paris, art. 4, 1856-
14
European Fisheries Convention, January 17, 1964,
3 INT'L L. MAT. 477 (1964)- - - - -
11
U.N. CHARTER, art. 51 - - - - - - - -
4
Statutes
Atlantica Fisheries Act of 1971, §2
.Atlantica Fisheries Research Act of 1971, §2·· United States Fisheries Zone Act, 16 U.S.C.
§1091 (1966) - - - - United States Outer Continental Shelf Lands Act,
43 U.S.C.
§1033(a)(3) (1953) - ~ - - Statutes of Canada, 13 E1iz. II, c.22 (1964)-
7
18
11
7
11
Cases
Advisory Opinion on the Greco-Bulgarian Communities,
(1930) P.C.I.J., Ser.B, No. 17 - - - - -
9
Ambatie10s Case, (1952) I.C.J. Rep. 70-
6
ii
Cases cont.
The Betsy, 1C. Rob. 93(1798)- -
14
Chorzow Factory Case, (1927) P.C.I.J~t Sere A,
No.9, at 21- - - - - - - - - -
3
The Drummond, 1 Dods, 103 (1811) -
14
The Nancy, Lords of Appeal, Action 5} (1809)
-
...
14
The Olinda Rodriguez, 174 U.S. 510 (1899)- -
14
United Kingdom v. Norway, (1951) Rep. 133 I.C.J.
9, 10, 12
Treatises
L. ALEXANDER, THE LAW OF THE SEA (1967)-
16
J. ,BRIERLY, THE LAW OF NATIONS (6th ed. 1950)- -
8
I. BRQWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL
LAW (1966) - - - - - - - - - - - -
10, 12, 13
J,. CASTEL, INTERNATIONAL LAW (1965)- -
4
C. COLOMBOS, THE INTERNAtIONAL LAW OF THE SEA (1967) -
10, 13
M.DAVIS, ICELAND EXTENDS ITS FISHERIES LIMITS (1963) .
10 ENCYCLOPEDIA BRITANNICA (1967)- - - - - - - -
13
,
7
J. HARGROVE, LAW, INSTITUTIONS, AND THE GLOBAL
ENVIRONMENT (1972)- - - - - - - - - ' ~ - - - - -
4
K. HODLOWAY, MODERN TRENDS IN TREATY LAW (1967)- -
6
C. HYDE, INTERNATIONAL LAW (1945)- - . - - - - - -
3
P. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME
JURISDICTION (1927) - - - - - - - - - -
4, 5,
H. LAUTERPACHT, INTERNATIONAL LAW (1970) - - - ,M. MCDOUGAL AND W. BURKE, THE PUBLIC ORDER OF THE
OCEANS .(1962) - - - - - - - - - - - - - - L. MCNAIR, THE LAW OF TREATIES (1961).
.'
.
'
- .,.
.
.
· D. O'CONNELL,I. ·INTERNATIONAL LAW (1970)-- -
iii
10
-
7, 8
6, 10
5
3, 10
Treatises cont.
S. ODA, THE INTERNATIONAL LAW OF THE OCEAN DEVELOPMENT (1972)- - ~ - - - - - - - - - - - - - - - -
12, 13
S. ODA, INTERNATIONAL CONTROL OF SEA RESOURCES (1963)
4, 15
L. OPPENHEIM, INTERNATIONAL LAW (8th ed. 1967)- - - -
12, 13
W. ROYCE, INTRODUCTION TO THE FISHERY SCIENCES (1972)
7
J. VERZIJL, IV. INTERNATIONAL LAW IN HISTORICAL
PERSPECTIVE (1971) - - - - - - - - - - - - - -
7
M. WHITEMAN, 4 DIGEST OF INTERNATIONAL LAW (1965)
6, 9; 13
M. WHITEMAN, 14 DIGEST OF INTERNATIONAL LAW (1970)- -
4
Periodicals
Browning, Inter-American Fishery Resources - A Need
for Cooperation, 2 TEX. INTL. L. FORUM 39 (1966)
15
W. Burke, Comments on Current International Issues
Relating to the Law of the Sea, 4 NAT. RES. L.
666 (1971)- - - - - - - - - - - - - - - Carroz and Roche, The International Policing of
High Seas Fisheries, 6 CAN. Y.B. OF INT'L L.
62 (1966)- - - - - - - - - - - - - Comments, The Tuna Boat Dispute and the International Law of Fisheries, 6 CALIF. WESTERN L.R.
119 (1969) - - - - - - - - - - - - - Dean, The Geneva Conference on the Law of the Sea:
What Was Accomplished, 52 AM. J. IN.TL. L. 626 (1958) -
15
14
17
5
Dean, The Second Geneva Conference on the Law of the
Sea: The Fight for Freedom of the Seas, 54 AM. J.
INTL. L. 764 (1960)- - - - - - - - -
12
Douglas, Environmental Problems of the Oceans: The Need
for International Controls, 1 ENVIRONMENTAL L. 162
(1972) - ' - - - - - - - - - - - - - - -
15
Goldie, The Ocean's Resources and International Law Possible Developments in Regional Fisheries Manage~, 8 COLUM. J. TRANSNATIONAL L. 30 (1969) - - - - -
4
iv
Periodicals cont.
Harvard Research in International Law, Comment on
Treaties, 29 AM. J. INTL. L. SUPP. 977 (1935)- - - - - -
3
Harvard Research in International Law, Comment on
Treaties, 29 AM. J. INTL. L. SUPP. 1089 (1935)
5
Heinzen, The Three-Mile Limit: Preserving the Freedom of the Seas, 11 STANFORD L.R. 651 (1959) - - -
15
Jacobson, Bridgi~the Gap to International Fisheries
Agreement: A Guide for Unilateral Action, 9 SAN
DIEGO L~R. 457 (1972)- - - - - - - '- - - - -
8, 14
,Johnston, Law,Technology and the Sea, 55 CALIF. L.R. 461
(1967) - - - - - - - - - - - - - - - - - Kreuger, An Evaluation of United States Ocean Policy,
17 MCGILL 689 (1971)- - - - - - - - -
5
14, , 17
Notes, Recent Developments in the Law of the Seas III:
A Synopsis, 9 SAN DIEGO L.R. 660 (1972)- - - - - - - -
13
Pardo, Development of Ocean Space--An International
Dilemma, 31 LA. L.R. 57 (1970)- - - - - - - - - -
15
Pender, Jurisdicti~na1 Approaches to Marine Environments - A Space Age Perspective, XV J.A.G. J. 155
~.~.
(1961)- - - - - - - - - - - - -
13
Pollock, Fisheries Considerations of Ocean Space, 4
NAT. RES. L. 679 (1971) - - - - - - - - -
14
Schaefer, The Changing Law of the Sea - Effects on
Freedom of Scientific Investigation, THE LAW OF
THE SEA INSTITUTE (Univ. of Rhode Island) 15 (1967)
16
Schaefer, Some Recent Developments Concerning - Fishing and Conservation of the Living Resources
of the High Seas 1- 7 SAN DIEGO L.R. 383 (1970)- -
5
Stevenson, International Law and the Oceans, 62
D~PT OF STATE BULL. 339 (1970)- - -
4
Thornberry" The Fishery Limits Act, 28 MODERN
L. R. 458 (1965)
- - - - - - - - - - - -
v
11
Periodicals cont.
Windley, ~rJlationa1 Practice Regarding Traditional
Fishing Privileges of Foreign Fishermen in Zones
of Extended Haritime Jurisdiction, 63 AM. J. INTL.
L. 490 (1969)- - - - - - - - - - - - - - - - - -
17
Wulf, Contiguous,Zones for Pollution Control: An
Appraisal Under International Law, SEA GRANT BULLETIN
NO. 13 (University of Miami) 163 (1971)- - - - - - - -
10
Miscellaneous
American Tunaboat Association, DATA ON SEIZURES OF U.S.
FLAG TUNA CLIPPERS DURING PERIOD JANUARY 1961-June
1969, Table I (1969) - -
13
109 CONGo REC. 20181 (1969) - - - -
13
G.A. Res. 2749, 25 U.N. GAOR, U.N. Doc. A/C.1/544 (1970) - - -
15
G.A. Res. 2749, 25 U.N. GAOR, U.N. Doc. A/8097 (1970) - - - -
17
Hearings on S.J. Res. 13 Before the Committee o~
Interior and Insular Affairs, 83d Cong., 1st Sess.
1052-105~ (1953) . - - - - - - - - - - - - - - H.R. REP. NO. 2086, 89th Cong., 2d Sess. (1966) - - - -
7
12, 14
Int'l. L. Comm'n, Report, 11 U.N. GAOR, Supp. 9, U.N.
Doc. A/3159 at 23 (1956) - - - -
16
Proclamation by the President with Respect to Coastal
Fisheries in Certain Areas of the High Seas,
September 28, 1945, 40 AM. J. INTL. L. SUPP. 46 (1946) -
10
Report of the International Technical Conference on the
Conservation of the Living Resources of ~he Sea,
U.N. Doc. A/CONF.10/6 at 1-10 (1955)
- - - -
16
U.N. Doc. A/CONF.13/38 (1958) -
5
U.N. Doc. A/CONF.13/c.2/L.34 at 124 (1958)-
5
U.N. D~c. · A/CONF.13/c.I/L. 77 Rev. 3 (1958)
6
U.N. Doc. A/CONF.13/c.I/L. 159 Rev. 1 (also Rev. 2)
(1958) - - - - - - - - - - - - - - - - -
7
vi
Miscellaneous cont.
U.N. Doc. A/CONF • . 13/L. 34 (1958)
U.N. Doc. A/CONF. 13/L.56 (1958)
vii
- -
- -'
7
8
BEFORE THE INTERNATIONAL COURT OF JUSTICE
MARCH
CASE NO. 1
THE STATE OF NEPTUNIUS,
Applicant
v.
THE STATE OF ATLANTICA,
'Respondent
MEMORIAL FOR THE APPLICANT
JURISDICTION
The parties have agreed to submit this dispute to the International Court of Justice for its determination.
- 1-
QUESTIONS PRESENTED
I. ·WHETHER ATLANTICA'S PROSECUTION OF THE POSEIDON'S CAPTAIN
VIOLATED INTERNATIONAL LAW?
II.
III.
WHETHER THE ATLANTICA FISHERIES ACT OF 1971 CREATED AN
UNLAWFUL CONTIGUOUS ZONE?
WHETHER THE ATLANTICA FISHERIES RESEARCH ACT OF 1971 WAS AN
UNLAWFUL IMPOSITION ON THE FREEDOM OF THE HIGH SEAS?
STATEMENT OF FACTS
The parties have stipulated the facts before the Tribunal.
SUMMARY OF ARGUMENT
Atlantica's prosecution of the Poseidon's captain violated
international law.
The prosecution was in derogation of a bilateral
fishing agreement between the parties.
The .prosecution was a direct
violation of the 1958 Convention on the High Seas to which Atlantica
I
was a signatory.
The 1958 Geneva Conference on the Law of the Sea did not recognize the exclusive control of fisheries by a coastal state .
At-
lantica's unilateral creation of an exclusive fisheries zone two
hundred miles in breadth is contrary to the general practice of
nations.
Moreover, Atlantica's extra-territorial claims are an un-
justified prescription of the natural resources of the high seas.
The Atlantica Fisheries Research Act of 1971 violates the
right to conduct scientific research on the high seas.
The Act
derogates the duty of conservation through scientific research recognized under international law.
-2-
ARGUMENT AND AUTHORITIES
I.
ATLANTICA'S PROSECUTION OF THE POSEIDON'S CAPTAIN VIOLATED INTERNATIONAL LAW.
A.
The prosecution derogated a bilateral fishing agreement between Atlantica and Neptunius.
Atlantica as a contracting party to the bilateral agreement has agreed to be bound by the fishing rights established
by the agreement.
~
Vienna Convention on the Law of Treaties,
May 23, 1969, U.N. Doc. 14 A/CONF.37/27 art. 14; D. O'CONNELL,
I. INTERNATIONAL LAW 246 (1970); Harvard Research in International Law, Comment on Treaties, 29 AM. J. INTL. L. SUPP. 977
(1935) •
Atlantica violated the rule of pacta sunt servanda.
The prosecution
of a Neptunius national was a violation of
the bilateral agreement and by the rule of pacta
a violation of international law.
~
servanda,
Vienna Convention on the Law
of Treaties, art. 26; C. HYDE, INTERNATIONAL LAW 1369 (1945);
Chorozow Factory Case, (1927) P.C.I . J., Serf A, No.9, at 21.
Rebus sic stantibus does not apply.
The principle of rebus
~
stantibus does not authorize
Atlantica's actions because the level of the haddock stock had
not changed radically during the two years the treaty was to be
-3-
in effect.
Vienna Convention on the Law of Treaties, art.
62, para. l(b); M. WHITEMAN, 14 DIGEST OF INTERNATIONAL LAW
485 (1970); J. CASTEL, INTERNATIONAL LAW 927 (1965).
The theory of self-help does not validate the seizure and
subsequent prosecution.
Atlantica's ad hoc exercise of unilateral force in derogation of Neptunius' rights under the agreement should be
judged by standards regarding the use of force generally.
J.
HARGROVE, LAW, INSTITUTIONS, AND THE GLOBAL ENVIRONMENT 99
(1972).
Article 51 of the U.N. Charter does not broaden the
right of self-defense to include enforcement of a jurisdictional claim not recognized in international law.
U.N. CHAR-
TER, art. 51; Stevenson, International Law and the Oceans, 62
DEPT. OF STATE BULL. 339 (1970); H. LAUTERPACHT, INTERNATIONAL
LAW 200 (1970).
The theory of abstention does not mitigate the binding force
of the agreement.
Abstention results in the exclusion of qther nations.
This in effect places acquisitive prescription into the law of
the sea.
S. ODA, INTERNATIONAL CONTROL OF SEA RESOURCES 84
(1963); Goldie, The Ocean's Resources and International Law Possible Developments in Regional Fisheries Management, 8 COLUM.
J. TRANSNATIONAL L. 30 (1969).
-4-
The 1958 Geneva Conference on the Law of the Sea rejected
the abstention principle.
A/CONF.13/38 (1958).
2 U.N. CONF. OFF. REC. 47, U.N. Doc.
Moreover, Neptunius' historic rights to
the haddock fishery and the bilateral agreement protecting the
stock preclude the application of abstention to Neptunius .
. Dean, The Geneva Conference on the Law of the Sea:
What Was
Accomplished, 52 AM . J. INTL. L. 626 (1958); Schaefer,
~
Recent Developments Concerning Fishing and the Conservation of
the Living Resources of the High Seas, 7 SAN DIEGO L. R. 383
(1970) •
Atlantica's breach of the bilateral agreement was not
justified; therefore, any equity granted should be accorded to
Neptunius.
Vienna Convention on the Law of Treaties, art. 18;
. L. MCNAIR, THE LAW OF TREATIES 540
(1~61);
Harvard Research in
International Law, Comment on Treaties, 29 AM. J. INTL. L. SUPP.
1089 (1935).
B.
Atlantica's interference with the freedom of the high
seas violated international law.
The 1958 Convention on the High Seas codified the freedom
of fishing on the high seas.
Convention on the High
Seas,~
April 29, 1958, 450 U.N.T.S. 82, art. 2; LAUTERPACHT, supra at
98 (1970); Johnston, Law, Technology and the Sea, 55 CALIF. L.
R. 461 (1967).
Attempts to give recognition to special rights
of a coastal state were rejected at the 1958 Conference.
Doc . A/CONF.13/c.2/L.34 at 124 (1958).
-5-
U.N.
Atlantica and Neptunius are signatories to the Convention.
Therefore, Atlantica's interference with Neptunius' fishing
rights on the high seas breached the Convention and violated
international law.
Convention on the High Seas, art. 2; Vienna
Convention on Treaties, art. 26; K. HOLLOWAY, MODERN TRENDS IN
TREATY LAW 72 (1967); Ambatie10s Case, (1952) I.C.J. Rep. 70.
II.
THE ATLANTICA FISHERIES ACT OF 1971 CREATED AN UNLAWFUL
FISHERIES ZONE.
A.
The 1958 Geneva Conference on the Law of the Sea did
not recognize the exclusive control of fisheries by
a coastal state beyond territorial waters.
The 1958 Convention on the Territorial Sea and Contiguous Zone.
By the Convention
on the Territorial Sea and Contiguous
Zone, AtlaBtica may only exercise jurisdiction beyond its territorial sea for limited purposes:
tion or sanitary regulations.
customs, fiscal, immigra-
Convention on the Territorial
Sea and Contiguous Zone, done Apri129, 1958, 516 U.N.T.S. 205,
art. 24, para. 1; M. MCDOUGAL AND W. BURKE, THE PUBLIC ORDER
OF THE OCEANS 594 (1962).
The International Law Commission,
in drafting the precursor to Article 24 of the Convention,was unwilling to recognize the right of a coastal state to an
exclusive fishery zone.
WHITEMAN, supra at v.4, p. 483 (1965).
Proposals at the 1958 Conference to extend fisheries jurisdiution
to a contiguous zone were also defeated.
Canadian proposal,
U.N. Doc. A/CONF.13/c.I/L. 77 Rev. 3, April 17, 1958; United
-6-
States proposal, U.N. Doc. A/CONF.13/c.I/L. 159 Rev. 1, April
17, (also Rev. 2, April 19) 1958; Eight power proposal (Asian
and Latin American Countries), U.N. Doc. A/CONF.13/L.34. (1958).
As adopted, the Convention on the Territorial Sea and Contiguous Zone did not authorize Atlantica's creation of an exclusive fisheries zone.
LAUTERPACHT, supra at 98; J. VERZIJL,
IV. INTERNATIONAL LAW IN
~ISTORICAL
PERSPECTIVE 176 (1971) •
. The i958 Convention on the Continental Shelf.
The Poseidon's captain was prosecuted for fishing within
the migratory route of the haddock.
Non-sedentary species
were not within the scope of the Convention on the Continental
Shelf.
Convention on the Continental Shelf, done April 29,
1958, 499 U.N.T.S. 311, art. 2, para.
A;
Atlantica Fisheries
Act of 1971, Sec. 2; 10 ENCYCLOPEDIA BRITANNICA 1100 (1967);
W. ROYCE, INTRODUCTION TO THE FISHERY SCIENCES 336 (1972).
Further, the Convention stipulates that the legal status of
the high seas above the shelf is not affected.
the Continental Shelf, art. 3.
Convention on
In this respect, the Conven-
tion was declaratory of existing rights of
~tates.
LAUTER-
PACHT, supra at 98; Hearings on S.J. Res. 13 Before the Committee on Interior and Insular Affairs, 83d Cong., 1st Sess.
1052-1053 (1953); Outer Continental Shelf Lands Act, 43 U.S.C.
H033 (a) (3) (1953).
-7-
The Geneva Convention on Fishing and Conservation of the Living
Resources of the High Seas.
The Convention on Fishing and Conservation of the Living
Resources of the High Seas dealt directly with the conservation
of fishery resources and did not recognize the rights of Atlantica to an exclusive fishery zone.
Convention on Fishing and
Conservation of the Living ,Resources of the High Seas,
~
April 29, 1958, 559 U.N.T.S. 285, art. 6, para. 4; 13 U.N. Doc.
GAOR, U.N. Doc. A/CONF.13/L. 56 (1958).
Neither Atlantica nor Neptunius was a party to the Convention.
Therefore, Neptunius is not bound by obligations arising
from that Convention.
Vienna Convention on Treaties, art. 11;
J. BRIERLY, THE LAW OF NATIONS 235 (6th ed., 1950).
Furt~er,
the Convention did not represent a codification
of existing international law.
LAUTERPACHT, supra at 98; Jacob-
son, Bridging the Gap to International Fisheries Agreement:
Guide for Unilateral Action, 9 SAN DIEGO L. R. 457 (1972).
five major fishing states have adopted the Convention.
supra at 457.
A
Only
Jacobson,
Therefore, the Convention on Fishing and Conserva-
tion cannot be said to authorize Atlantica's exclusive fisheries
zone.
The ' High Seas Convention of 1958.
The Convention on the High Seas, which both parties signed,
specifically recognizes freedom of fishing as one of the free, doms of the high seas.
Convention on the High Seas, art. 2,
-8-
para 1.
The Convention codified existing international law.
Convention on the High Seas, Preamble; LAUTERPACHT, supra at 98.
Therefore, Atlantica's municipal law creating an exclusive fisheries zone in the high seas violates international law.
Vienna
Convention on Treaties, art. 27; Advisory Opinion on the GrecoBulgarian Communities, (1930) P.C.I.J., Sere B, No. 17.
B.
The general practice of nations is to accept and
reasonable zones.
1.
resp~ct
Atlantica has not demonstrated the right to impose
a new jurisdiction over the high seas.
New encroachments on the freedom of the seas are tolerated
only when their reasonableness has been clearly demonstrated, and
then only by a grant of strictly limited jurisdiction.
(1965)
~IITEMAN,
supra at 79.
Atlantica has not demonstrated that the Atlantica Fisheries
Act of 1971 and the Atlantica
Fish~ries
tablish a new jurisdictional right.
Research Act of 1971 es-
The legality of Atlantica's
jurisdictional claims cannot depend merely on the will of Atlantica
as expressed in its municipal law.
United Kingdom v. Norway, (1951)
I.C.J., REPORTS 133 (hereinafter cited as Anglo-Norwegian Fisheries
Case).
Atlantica's claim does not meet the criteria set forth in the
Anglo-Norwegian Fisheries Case regarding new claims of jurisdiction over the high seas.
There is no reasonable relationship
between Atlantica's needs and a claim of exclusive fisheries
-9-
jurisdiction two hundred miles into the high seas.
rd. at 153.
Further, Atlantica's claims do not diminish the historic rights
Neptunius to the haddock fishery.
rd. at 144.
Neptunius'
diplomatic protest to both Acts preserves its claim of historic
right to the fishery and rebuts the implication of acquiescence.
Anglo-Norwegian Fisheries Case,
~.
at 131; I. BROWNLIE, PRINCI-
PLES OF PUBLIC INTERNATIONAL LAW 150 (1966); D. O'CONNELL, supra
a.t 421.
2.
The community of nations accepts twelve miles as
a reasonable zone.
Major fishing nations recognize a twelve-mile limit.
The 1958 Geneva Conference did not recognize exclusive
fishery zones.
.
W. BURKE AND M. MCDOUGAL., supra at 539; C.
I
COLOMBOS, THE INTERNATIONAL LAW OF. THE SEA 23 (1967).
The
general practice among states, however, has been to accept and
respect a reasonable zone.
Proclamation by the President With
Respect to Qoastal Fisheries in Certain Areas of the High Seas,
September 28, 1945, 40 AM. J. INTL. L. SUPP. 46 (1946); N. Wulf,
Contiguous Zones for Pollution Control:
An Appraisal Under In-
ternational Law, SEA GRANT BULLETIN NO. 13 (University of Miami)
163 (1971); P. JESSUP p THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION 95 (1927).
As early as 1909, Russia initiated a twelve-mile claim of
territorial jurisdiction over fisheries.
-10-
JESSUP, supra at 29.
Bulgaria, The Peoples Republic of China, and Rumania have made
similar claims.
S. ODA, THE INTERNATIONAL LAW OF THE OCEAN DE-
VELOPMENT 368 (1972).
Poland .and Canada claim three-mile terri-
torial seas and additional nine-mile fishing zones.
~.;
Statutes
of Canada, 13 E1iz. II, c.22 (1964).
The governments of Austria, Belgium, Denmark, France, the
Federal Republic of Germany, Ireland, Italy, Luxembourg, the
Netherlands, Portugal, Spain, Sweden and the United Kingdom of
Great Britain and Northern Ireland agreed to an exclusive fisheries
regime of up to twelve miles from the baseline for each coastal
State in the 1964 European Fisheries Convention.
1964 European
Fisheries Convention, art. 3, at 3 INTL. L. MATERIALS 477 (1964);
Thornberry~
The Fishery Limits Act, 28 MODERN L. REV. 458 (1965).
None of the coastal nations of Western .Europe claim either a
territorial sea or exclusive fisheries jurisdiction of more than
twelve miles.
ODA, supra at 368-372.
Japan, claiming only a three-mile territorial sea, recognizes claims beyond
~welve
miles only as necessary for "adequate
protection on an equitable basis" of a State's coastal fisheries.
Japanese Draft at 13th Session of the Asian-African Legal Consultative Committee (1972), id e at 222.
The United States in 1966, by legislative enactment, extended
its fishery jurisdiction to twelve miles.
The fishery zone is
stipulated · to be subject to the continuation of traditional fishing by foreign States.
16 U.S.C. §1901.
-11-
In hearings relative to the legislation, a State Department representative explained that international law recognizes
a twelve-mile fishing zone.
More than sixty countries had a
twelve-mile exclusive fishery zone at the time.
~n~6,
H.R. REP. NO.
89th Cong., 2d Sess. 2,5 (1966).
Developing States generally recognize a twelve-mile limit.
As ·of March 1, 1972, 57 of 77 developing coastal States
claimed a fishery jurlsdiction of 12 miles, only twelve claimed
more than 50 miles.
Ten of those States claiming more than 50
miles were Latin American States, reflecting a highly localized
practice.
ODA, supra at 372.
3.
Unreasonable claims of jurisdiction have not been
recognized.
Atlantica's unilateral extension of an exclusive fisheries
zone in the high seas, to the exclusion of foreign nationals,
is not valid in international law unless it is recognized by
other States.
the Sea:
Dean, The Second Geneva Conference on the Law of
The Fight for Freedom of the Seas, 54 AM. J. INTL. L.
764 (1960); BROWNLIE, supra at 150.
Neptunius' diplomatic pro-
test preserves its right to continued use of the fisheries.
OPPENHEIM, INTERNATIONAL LAW 874 (8th ed., 1967).
L.
In the Ang10-
Norwegian Fisheries Case, the Court attached great importance to
Great Britain's failure to protest Norway's delimitation of territoria1 waters.
Anglo-Norwegian Fisheries Case, supra at 139.
-12-
The two-hundred mile claims of Latin American States have
been regularly protested.
United States protest to Chile, in
WHITEMAN, (1965), supra at 797; United States protest to Peru, id.
at 798; United States protest to Ecuador, ide at 800.
General lack of recognition of extensive extra-territorial
claims has been further established by continued fishing of the
declared zones by foreign nationals.
American Tunaboat Associa-
tion, DATA ON SEIZURES OF U.S. FLAG TUNA CLIPPERS DURING PERIOD
JANUARY 1961-JUNE 1969, Table I (1969).
In 1971, fifty-two
United States tuna fishing vessels were seized by Ecuador.
cent Developments in the Law of the Seas III:
Re-
A Synopsis, 9
SAN DIEGO L. R. 660 (1972).
The refusal to acquiesce to the two-hundred mile claims
has resulted in numerous incidents of violence.
J. Pender,
Jurisdictional Approaches to Marine Environments - A Space Age
Perspective, XV J.A.G. J. 155 .!:.t.
20181 (1963);
~ ~
~.
(1961); 109 CONGo REC.
DAVIS, ICELAND EXTENDS IT FISHERIES LIMITS
93 (1963); COLOMBOS, supra at 158.
Atlantica's enforcement of the two-hundred mile fishery
jurisdiction over Neptunius' protest and non-acquiesence does
not conform with the general practice of nations.
OPPENHEIM,
supra at 874; BROWNLIE, supra at 150.
Atlantica cannot enforce its high seas fishing zone.
Atlantica, due to its limited resources, cannot claim the
-13-
capacity to protect the zone without international cooperation.
Soviet Statement to the U.N. Seadbeds Committee, August 17, 1971
in Kreuger, An Evaluation of United States Ocean Policy, 17 MCGILL 689 (1971); Carroz and Roche, The International Policing of
High Seas Fisheries, 6 CAN. Y.B.OF INT'L
L. 62 (1966).
Upon
declaration of its own twelve-mile fishery, the United States'
principal objection was the difficulty of enforcement with its
present Coast
Gu~rd
budget.
H.R. REP. NO. 2086, 89th Cong., 2d
Sess. 10 (Departmental Reports) (1966).
For a nation with far
fewer resources, the cost would outweigh the benefits.
' Bridging the
Ga~
International Fisheries Agreement:
Jacobson,
A Guide
for Unilatera1 . Action, 9 SAN DIEGO L. R. 485 (1972).
The community of nations failure to recognize ineffective
zones, such as Atlantica's, is in accord with the theory underrec~gnition
lying
of the practice of establishing blockades:
for the zone to be lawful, it must be effective.
The Nancy,
Lords of Appeal, Action 57 (1809); Declaration of Paris, Art. 4,
1856; The
Betsy~
1 C. Rob. 93 (1798); The Drummond, 1 Dods
103
(1811); The Olinda Rodriguez, 174 U.S. 510 (1899), per Fuller,
C.J.
To recognize paper proclamations such as Atlantica's would
result in mistrust and disrespect for exclusive zones as a whole
and thus undermine the validity of lawful declarations of effective
zones.
Pollock, Fisheries Considerations of Ocean Space, 4 NAT.
RES. L. 679 (1971).
-14-
C.
Atlantica's unilateral prescription of the resources
of the high seas violates international law.
The sea and its resources as the common heritage of mankind
are not subject to appropriation by States.
G.A. Res. 2749.
GAOR, U.N. Doc. A/C.l/544 (1970); Pardo, Development of Ocean Space An International Dilemma, 31 LA. L. R. 57 (1970).
Atlantica's ex-
ploitation of resources beyond the limits of its national jurisdic,tion should be carried out for the benefit of mankind as a whole,
and the fisheries regime established should meet the needs of all
nations.
Browning, Inter-American Fishery Resources - A Need for
Cooperation, 2 TEX. INTL. L. FORUM 39 (1966); W. Burke, Comments
on Current International Issues Relating to the Law of the Sea, 4
NAT. RES. L. 666 (1971).
A community propert¥ interest in the high seas existed prior
to the establishment of the territorial sea.
Mile Limit:
Preserving the Freedom of the Seas, 11 STANFORD L. R.
651 (1959); ODA, supra at 84 (1963).
~
Heinzen, The Three-
Therefore, the use of the
communis by Atlantica should depend on the consent of the inter-
national community.
Douglas, Environmental Problems of the Oceans:
The Need for International Controls, 1 ENVIRONMENTAL L. 162 (1972).
III. THE ATLANTICA FISHERIES RESEARCH ACT OF 1971 WAS AN UNLAWFUL
IMPOSITION ON THE FREEDOM OF THE HIGH SEAS.
, A.
The right to research on the high seas is well established
in international law.
The Convention on the High Seas, to which Atlantica is ' a
party, recognizes freedoms other than the four stipulated in the
-15-
Convention.
Convention on the High Seas, art. 2.
The draft
article, as formulated by the International Law Commission in
1956, specified that one of these other freedoms was the freedom
of research.
Int'l L. Comm'n, Report, 11 U.N. GAOR, Supp. 9, U.N.
Doc. A/3159 at 23 (1956); ALEXANDER, THE LAW OF THE SEA 213 (1967).
The 1958 Convention on the Continental Shelf, to which Atl~ntica
is a party, stipulates that the coastal state's rights
.in the continental shelf do not affect the legal status of the
high seas above the shelf.
art. 3.
Convention on the Continental Shelf,
In commentary to Article 68 of the 1956 Report, the In-
ternational Law Commission said that "the consent of the coastal
state will only be required for research relating to the exploration or exploitation of the seabed or subsoil."
Int'l Law Comm'n,
Report, 11 U.N. GAOR Supp. 9, U.N. Doc. A/3159 (1956).
The freedom of scientific research is one of the recognized
freedoms of the seas; therefore, Atlantica violated international
law by prosecuting a Neptunius national for the exercise of that
freedom.
Schaefer, The Changing Law of the Sea - Effects on Free-
dom of Scientific Investigation, THE LAW OF THE SEA INSTITUTE
(University of Rhode Island) 15 (1967).
B.
Neptunius has a right and a duty to conserve the fisheries
of the contested area by scientific research •
. The International Technical Conference of the Food and Agricultural Organization, of which Neptunius and Atlantica are members,
imposed a duty on Neptunius to participate in scientific research.
Report of the International Technical Conference on the Conservation
o~ the Living Resources of the Sea, U.N. Doc. A/CONF.lO/6 at 1-10
(1955).
-16-
The same Conference imposed a duty upon Atlantica to cooperate
in the performance of the research.
~ispute
g.; Comments, The Tuna Boat
and the International Law of Fisheries, 6 CALIF. WESTERN
L. R. 119 (1969).
The duty was reemphasized in 1970 by the U.N.
General Assembly.
G.A. Res. 2749, 25 U.N. GADR, U.N. Doc. A/8097
(1970).
Therefore, the historic rights of Neptunius to fish the
haddock in the high seas off the COqst of Atlantica conferred
upon Neptunius a right and a duty to protect the stock.
Windley,
International Practice Regarding Traditional Fishing Privileges of
Foreign Fishermen in Zones of Extended Maritime Jurisdiciton, 63
M1. J. INTL. L. 490 (1969).
Atlantica's regulation of research threatens the fisheries.
Nations such as Atlantica, with
ve~y
limited resources, can-
not afford economical management of extensive fisheries.
Soviet
Statement to the U.N. Seabeds Committee, Kreuger, supra at 689.
Atlantica's lack of diligence in updating its 1964 data with
respect to the maximum sustainable yield of haddock and its 25%
deviation from FAD data reflect an economic inability to manage
the contested fishery resources.
The Atlantica Fisheries Research Act of 1971 by its terms is
prohibitive.
The research fee of $1,000 per day discourages scientific
research and does not follow the strong recommendations of the
· ...;17-
united Nations to encourage research.
Act of 1971, sec.• 2.
Atlantica Fisheries Research
The Research Act is detrimental to the marine
resources of the high seas and violates a right and duty of Neptunius to conduct research in the area.
CON 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 Neptunius, finding that:
(1)
Atlantica violated the bi1aterial fishing agreement;
(2)
-Atlantica violated the 1958 Convention on the High Seas;
(3)
Atlantica created an unlawful fisheries zone;
(4)
Atlantica unjustifiably prohibited scientific research on the
high seas.
Respectfully submitted,
Team No.8,
. Agents for Neptunius
-18-
NO. 1973
E:
IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE, THE HAGUE. NETHERLANDS
THE STATE OF NEPTUNIUS.
Applicant
v.
THE STATE OF ATLANTICA,
Respondent
MARCH TERM
1973
On Submission to the
International Court of Justice
COUNTER-MEMORIAL FOR THE'RESPONDENT
TEAM NO. 8
February 16, 1973
Agents for Atlantica '
i
INDEX
Page
..
Index of Authorities • •
11
...
...
Jurisdiction • • • •
Questions Presented.
Statement of Facts • . • • • •
•
•
•
•
•
•
•
•
v
•
•
•
1
2
2
Summary of Argument • • • • • •
2
Argument and Authorities .
3
I.
ATLANTICA HAS NOT VIOLATED INTERNATIONAL LAW BY ESTABLISHING
A CONTIGUOUS FISHERIES ZONE FOR CONSERVATIONAL PURPOSES •
3
The contiguous zone concept utilized by Atlantica is
recognized by multilateral agreements • • • . •
3·
Declarations and bilateral agreements recognize the
contiguous zone concept utilized by Atlantica • • • , • • • .
5
Atlantica has followed the generai practice among
states in unilaterally establishing a contiguous zone
6
ATLANTICA'S ENACTMENT OF THE FISHERIES ACT AND THE FISHERIES
RESEARCH ,ACT IS JUSTIFIED UNDER INTERNATIONAL LAW.
7
A.
B.
C.
II.
A.
III.
The criteria for evaluating claims to fisheries zones
is "reasonableness" •
• • • • • • • • ••
• • • • •
7
B.
The zones established by Atlantica are reasonable •
8
C.
The quota agreement between Atlant~ca and Neptunius did
not prevent the establishment of a fisheries zone •
. . • 15
THE SEIZURE OF THE POSEIDON AND THE PROSECUTION OF ITS CAPTAIN
DID NOT VIOLATE INTERNATIONAL LAW •
• • • •
• • 16
Conclusion • •
•
•
•
•
•
•
v
0
•
•
It
• • 18
11
INDEX OF AUTHORITIES
Page
Treaties
C~nvention
on Fishing and Conservation of the Living Resources of
the High Seas, done April 29, 1958, T.I.A.S. No. 5969; 450 U.N.T.S.
285 . . . . . . . . . . • . . . . . . . . . . . • . . . • . . .
Convention on the Continental Shelf, ~ April 28, 1958, T.I.A.S.
No. 5578; 499 U.N.T.S. 311 • • • . • • • • • • • • • • •
Convention on the High Seas,
450 U. N • T • S ••
• • •
~
3, 4. 5
4, 14
April 29, 1958, T.I.A.S. No. 5200;
4
• • " • • • • • • •
convention on the Territorial Sea and Contiguous Zone, done April 29,
1958, T~I.A.S. 5639; 516 U.N.T.S. 205 • •
• •••
3, 4
Japan-United Kingdom, 4 INT'L L. MAT. 1128 •• "
6
Norway-United Kingdom, 4 INT'L L. MAT. 163 •
6
Vienna Convention on the Law of Treaties, ~ May 23, 1969,
U.N. Doc. A/CONF. 39/27 • • • • • • • • • • • • • •
15
Statutes
Atlantica Fisheries Act of 1971.
7
Atlantica Fisheries Research Act of 1971 .
7
16 U.S.C.§ 1081 (1970) • • •
14
•
•
•
G
0
Church v. Hubbart, 6 Cranch (2 U.S.) 187,234 (1804).
7
Treatises
G. AMADOR, THE EXPLOITATION AND CONSERVATION OF THE RESOURCES OF THE
SEA (2 ed. 1963).
9
J. ANDRASSY, INTERNATIONAL LAW AND THE RESOURCES OF THE SEA (1970)
7, 9
...
··....···
J. AUGUSTE, THE CONTINENTAL SHELF (1962)
D. Bo\-lETT, THE LAW OF THE SEA (1967)
..
.··.
..··
E. BROWN, THE LEGAL REGIME OF HYDROSPACE (1971) •
·
.···
,
···
···...
12
3, 8
12
iii
Page
W. BURKE, OCEAN SCIENCES, TECHNOLOGY, AND THE FUTURE INTERNATIONAL
LAW OF THE SEA (1966). . • . . • •
• • • . •
11
W. BURKE, TOWARDS A BETTER USE OF THE OCEAN (1969). . • • • •
14
W. BULTER, THE SOVIET UNION AND THE LAW OF THE SEA (1971)
14
F. CHRISTY & A. SCOTT, THE COMMON WEALTH IN OCEAN FISHERIES:
PROBLEMS OF GROWTH AND ECONOMIC ALLOCATION (1965). • . .
SOME
10
17
J. COLOMBOS. INTERNATIONAL LAW OF THE SEA (6th ed. 1967).
R. Friedheim, The Marine Commission Deep-Seabed Proposals - A
Political Analysis, in THE LAW OF THE SEA, NATIONAL POLICY
RECOMMENDATIONS (L. Alexander ed. 1970) . • • • . • • .
• • 15
R. FRIEDHEIM, UNDERSTANDING THE DEBATE ON OCEAN RESOURCES (1969) . • • . 14
• 16
B. HALL, INTERNATIONAL LAW (1917)
M. HAMBURGER, MORALS AND LAW, THE GROWTH OF ARISTOTLE'S LEGAL THEORY
(1965) . ,
..•.•••
• • . • . •
15
L, HARGROVE, LAW, INSTITUTIONS, & THE GLOBAL ENVIRONMENT (1972)
17
P. JESSUP, THE LAW OF TERRITORIAL WATERS AND MARITIME JURISDICTION
6, 8
(1927) . . . . . . . . . . . . " "
O. JOHNSTON, THE INTERNATIONAL LAW OF FISHERIES (1965) . .
9
T. KOBAYASHI, THE ANGLO-NORWEGIAN FISHERIES CASE OF 1951 AND THE
CHANGING LAW OF THE TERRITORIAL SEA (U. Fla. Monograph No. 26,
. ~9 65) ~ "
CI.
It
U
•
U
CI
0
It
!oI
~.
. . " . . " . . .
uo
"
7. 12
"
H. LAUTERPACHT, THE FUNCTIONS OF LAW IN THE INTERNATIONAL COMMUNITY
(1966) ~ •.
•..••
• •
16
H. LAUTERPACHT. INTERNATIONAL LAW (1970) •.
3
M. MCDOUGAL & W. BURKE, THE PUBLIC ORDER OF THE OCEANS (1962)
3, 13
M. MCDOUGAL & F. FELICIANO, LAW AND WORLD MINIMUM PUBLIC ORDER (1961) . 17
7
1 D. O'CONNELL, INTERNATIONAL LAW (1970) • . • • . • • •
S. ODA, INTERNATIONAL CONTROL OF SEA RESOURCES (1963) •
•
"
Q'
9, 15
S. RIESENFELD, PROTECTION OF COASTAL FISHERIES UNDER INTERNATIONM.
LAW (lQ 42)
iii
•
II
"
•
"
•
CI
"
If
II
0
Q
"
..
"
•
II
"
"
~
"
u
"
"
•
•
8
iv
Page
• • . ll, 12
W. ROYCE, INTRODUCTION TO THE FISHERY SCIENCES (1972)
4 M. WHITEMAN, DIGEST OF INTERNATIONAL LAW (1965) .
• ••• 6
Wolff, The United States, Chile, Ecuador, and Peru: Some Reflections
on the 1969 Report of the Commission on Marine Science, ~nginee ring and Resources, in THE LAW OF THE SEA, NATIONAL POLICY
RECOMMENDATIONS (L. Alexander ed. 1970) • . • • • . . . . . • . . • . 12
Periodicals
Allen, Law. Fish and Policy, 5 INT'L LAWYER 621,635 (1971)
••• 9
Bayitch, International Fishery Problems in the Western Hemisphere,
10 MIMH L. Q. 499,504 (1956) . . . . . • . . . , . . . . • . • . • . 12
Beesley, Canadian Practice in International Law during 1970, IX
CAN. Y.B. INT'L L. 276-77 (1971) • • . .
. • . • ..
. . . . . 16
Bilder, The Canadian Artie Waters Pollution Prevention Act: New
Stresses on the Law of the Sea, 2 ENVIR. L. REV. 716,728 (1971).
. .17
Bishop, The 1958 Convention of Fishing and Conservation of the Living
Resources of the High Seas, 62 COLUM. L. REV. 1206, 1209-11 (1962) •• 10, 11
Boggs, National Claims in Adjacent Seas, 41 GEOGRAPHICAL REV. 185,
191-201 (1951) . • . . . . . . . . . . • • • . • . . . . .
. • • 3
Browning, Inter-American Fisheries Resources--A Need For Cooperation,
2 TEX. INT'L L. F. 1, 12-14 (1966) . . . • • . . . • • . • . • • . . • 11
Burke, Law, Science, and the Ocean, 3 NAT. RES. LAWYER 195, 209-10
(1970) .
• . . • • ..
. ..•.•. •
. . • • • • .15
Carroz & Roche, The International Policing of High Seas Fisheries,
6 CAN. Y.B. INT'L L. 61, 85-87 (1968).
. . • . . • . . . . . . • . 11
Cisneros, The 200 Mile Limit in the South Pacific: A New Position
in International Law with a Human and Judicial Content, 1964
ABA INT'L & COMPo L., PROC . 56-61. . .
. • • . . . • • • • • 12
Dean, The Geneva Conference on the Law of the Sea: What Was Accomp1ished, 52 AM J. INT'L L. 607, 626-27 (1958)
•• 13
Dean, The Second Geneva Conference on the Law of the Sea: The Fight
For Freedom of the Sea, 54 AM. J. INT'L L. 751. 762 (1960) • • • • • .16
v
Page
Douglas, Environmental Problems of the Oceans: The Need for International Controls, 1 ENVIR. L. 149, 152 (1972) • • • • • • • . • • • • 9, 10
Eisenbud, Understanding the International Fisheries Debate, 4 NAT.
RES. LAWYER 19, 37 (1971). • • • • • • . • • • •
• • • • • • • 14
Foster, New Zealand's Coastal Jurisdiction, 1 CALIF. W. INT'L L. J.
13, 20 (1970). . •
• •• 10
Garaioca, The Continental Shelf and the Extention of the Territorial
~, 10 MIAMI L. Q. 490, 495-98 (1956) • • • • • • . • • • • • • • • • 12
Goldie, The Ocean's Resources and International Law--Possible
Developments in Regional Fisheries Management, 8 COLUM J.
TRANSNAT'L L. 1, 28-31 (1969). • • • • • • • • . • • .
• •• 13
Heinzen, The Three-Mile Limit: Preserving the Freedom of the Seas,
11 STAN. L. REV. 597, 660 (1959) • . •
0
• • • • • •
0
Jacobson, Bridging the Gap to International Fisheries: A Guide to
Unilateral Action, 9 SAN DIEGO L. REV. 454, 484 (1972)
• • •
.
10
. • 10
Jessup, The United Nations Conference on the Law of the Sea, 59 COLUM.
L. REV. 245 (1959) • • . • •
. • . • .
• •••••••• 4
Lay1an, Past Present and Future Developments of the Customary International Law of the Sea and Deep Seabed, 5 INT'L LAWYER 442,
444 (1971) . . . . . . . . . . . . . . . . . . . . . . . . .
.
It
..
8
Lecuona, The Ecuador Fisheries Dispute, II J MARITIME L. & COMM 91,
111-113 (1970) . . . • .
• . • .
• • . ••
• • • 13, 15
McDougal & Burke~ Crisis in the Law of the Sea: Community Perspectives Versus National Egoism, 67 YALE L. J. 539, 567-70 (1958) •• 8
Menchaca. Character and Scope of the Rights Declared and Practiced
Over the Continental Sea and Shelf~ 47 AM. J . . INT'L L. l20 p
121-23 (1953)
• . • • . • • • • • • • • •
• • • 12
Miles, Technology. Ocean Management, and the Law of the Sea:
Current History, 46 DENV. L. J. 240 p 254-60 (1969) •
• •• 10
Some
Shuman, Pacific Fishery Conservation Conventions, 2 SYDNEY L. REV.
~36 (1958) • • • • • . •
0
Svarlien, The Territorial Sea:
REV. 333, 346 (1962) •
0
•
•
•
•
•
•
••
•
••
o
•
9
A Quest For Uniformity, U. FLA. L.
Tec1aff, Jurisdiction Over Offshore Fisheries--How Far Into the High
Seas, 35 FORDHAM L. REV. 409, 421 (1967) • • • • • • ' 0
u
••
9
7, 10, 12
vi
Page
Wulf, contiguous Zones for Pollution Control: An Appraisal Under
International Law, SEA GRANT BULLETIN NO. 13 (U. Miami) 158-159
(1971) . . . . . • . . . . . . . . . . . . . . . . . . • . . . .
8
Miscellaneous
i
109 congressional Record 20181-20182 (November 6, 1963) • • • • • •
7
34 DEP'T STATE BULL. 296, 298-99 (1956) •
8
66 DEP'T STATE BULL. 672, 674 (1972) ••
• 11, 14
Final Act of the Intergovernmental Conference on the Convention on
Dumping of Wastes at Sea, 11 INT'L L. MAT. 1291 (1972) • •
6
Francois, Second Report on the Regime of the Territorial Sea, U.N.
Doc. A/CN. 4/61 (1953) • • • . •
3
8 INT'L L. MAT. 340, 357
• 12
• • 17
9 INT'L L. MAT. 25 (1970) •
The Lima Declaration of 1970, 10 INT'L L. MAT. 207 (1970) •
6, 14
LIMITS AND STATUS OF THE TERRITORIAL SEA, EXCLUSIVE FISHING ZONES~
FISHERY CONSERVATION ZONES AND THE CONTINTENTAL SHELF (FAO Leg.
Series No.8, 1969). • • • • • • •
• ••••••.••
7
The Montivideo Declaration of 1970, 9 INT'L L. MAT. 1081 (1970) •
6, 8
REPORT OF THE CONFERENCE OF FAO 15 para. 58 (16th Sess. 1971)
· 13
Report of the International Law Commission, 8th Sess., [1956] 2 Y.B.
INT'L L. COMM'N 104, U.N. Doc. A/CN. 4/101 (1956) • • • • • • . • • •
5
The Santiago Declaration of 1952» 1 Laws and Regulations on the Regime
of the Territorial Sea, (U.N. Legislative Serie's , 1957), ST/LEG/
SER. B/6, at 723 (1957). • • • • • • •
• • ••
• • • •
6
The Santo Domingo Declaration of 1972, 11 INT'L L. MAT. 892 (1972).
6, 14
Senate Comm. on Commerce, 2d Sess., S. Rep. No. 1280, 5 (1966).
...·
2 U.N. CONF. ON THE LAW OF THE SEA, U.N. Doc. A/CONF. 13/38 (1958) •
U.N. Doc. A/7750 Pt. 1, at 3 (1969)
.........
....
7
9
6
BEFORE THE INTERNATIONAL COURT OF JUSTICE
MARCH
CASE NO. 1
THE STATE 'OF NEPTUNIUS,
Applicant
v.
THE STATE OF ATLANTICA,
Respondent
COUNTER-MEMORIAL FOR THE RESPONDENT
JURISDICTION
The parties have agreed to submit this dispute to the International
Court of Justice for its determination.
2
QUESTIONS PRESENTED
I.
WHETHER ATLANTICA'S ESTABLISHMENT OF A CONTIGUOUS FISHERIES
ZONE VIOLATED INTERNATIONAL LAW?
iI.
WHETHER ATLANTICA'S ENACTMENT OF THE FISHERIES ACT AND THE
FISHERIES RESEARCH ACT IS JUSTIFIED UNDER INTERNATIONAL LAW?
.IlI.
WHETHER THE SEIZURE OF THE POSEIDON AND THE PROSECUTION OF
tTS CAPTAIN VIOLATED INTERNATIONAL LAW?
STATEMENT OF FACTS
The parties have stipulated the facts before the Court.
SUMMARY OF ARGUMENT
Atlantica did not violate international law by establishing a con-
tiguous fisheries zone for conservational purposes.
The contiguous zone
concept utilized by Atlantica is recognized by multilateral agreements,
declarations and bilateral agreements.
Atlantica has followed the
general practice among states in unilaterally establishing a contiguous
zone.
Atlantica's enactment of the Fisheries Act and the Fisheries Research Act is justified under international law.
The zones established
by Atlantica meet the criteria of reasonableness required by international law.
The quota agreement between Atlantica and Neptunius did
not prevent the establishment of a fisheries zone.
Atlantica's seizure of the Poseidon and the prosecution of its captain did not violate international law.
Atlantica's exercise of juris-
diction over the Poseidon and , its captain was a lawful exercise of the
right of self-preservation.
3
ARGUMENTS AND AUTHORITIES
1.
ATLANTICA HAS NOT VIOLATED INTERNATIONAL LAW BY ESTABLISHING
A CONTIGUOUS FISHERIES ZONE FOR CONSERVATIONAL PURPOSES.
A.
The contiguous zone concept utilized by Atlantica is
recognized by multilateral agreements.
contiguous zone concept.
The contiguous zone concept permits coastal states to extend jurisdiction over waters
purposes.
lying oUtside their territorial seas for limited
M. MCDOUGAL & W. BURKE, THE PUBLIC ORDER OF THE OCEANS 45,
518-19 (1962).
International law recognizes the legitimacy of Atlantica's
extension of jurisdiction over the high seas as necessary to protect
Atlantica's interests as a coastal state.
Francois, Second Report on
the Regime of the Territorial Sea, U.N. Doc. A/CN. 4/61 (1953); Boggs,
National Claims in Adjacent Seas, 41 GEOGRAPBICAL REV. 185, 191-201 (1951).
Rights, interests, responsibilities of coastal states recognized.
The 1958 Geneva Conference produced the most successful aodification
on, the law of the sea.
1 H. LAUTERPACHT, INTERNATIONAL LAW 98 (1970);
D. ,BOWETT, THE LAW OF THE SEA 4,5 (1967).
~ontiguous
Atlantica's right to create
zones for the protection of its special interests as a coastal
state is recognized in the Convention on Fishing and Conservation of the
Living Resources of the High Seas [CFCLRHS], the Convention on the Territorial Sea and Contiguous Zone [CTSCZ], the Convention on the High Seas
[CHS], and the Convention on the Continental Shelf [CCS].
Convention on
Fishing and Conservation of the Living Resources of the High Seas, done
April 29 9 1958, T.l.A.S. No. 5969, 450 U.N.T.S. 285 [hereinafter cited as
Convention on Fishing and Conservation]; CFCLIDIS arts. VII, XIII; Convention on ,the Territorial Sea and Contiguous Zone,
~
April 29. 1958,
4
T.r.A.S. No . 5639, 516 U.N.T.S. 205 [hereinafter cited as Contiguous
Zone Convention]; CTSCZ art. XVI, paras. I. 3; CTSCZ art. XXIV, para. 1;
Convention on the High Seas, done April 29, 1958, T.I.A.S. No. 5200, 450
U.N.T.S. 82; CHS arts. XIX, XXII, XXIII; Convention on the Continental Shelf,
-
done April 29, 1958, T.I.A.S. No. 5578, 499 U.N.T.S. 311; CCS art. V,
para. 2.
The special interest of coastal states in the conservation of
living resources in their adjacent waters is recognized by the 1958 Geneva
Conference.
art. V.
CFCLRHS art. VI; CTSCZ art. XVI; CHS arts. XXIV, XXV; CCS
Atlantica's responsibility, as a coastal state, in protecting
living resources in its adjacent waters is recognized by the 1958 Geneva
Conference.
CFCLRHS arts. I, VII; CHS art. XXIV; CCS art. V. para. 7.
Exclusive fisheries zones beyond twelve miles are not prohibited.
While the Contiguous Zone Convention limits the width of contiguous
zoneS for purposes of controlling customs, fiscal. immigration , and sanitary regulations to twelve miles, it does not prohibit Atlantica's creation
of an exclusive fisheries zone beyond twelve miles for conservational
purposes.
Jessup; The United Nations Conference on the Law of the Se a,
59 COLUM. L. REV . 245 (1959); CTSCZ art. XXIV, para. 2.
Since the Conven-
tion on Fishing and Conservation, drafted at the same time as the Contiguous
Zone Convention, authorizes coastal states to take unilateral action
necessary for conservation (which necessarily includes the contiguous
zone concept) Atlantica's action is authorized.
CFCLrulS art. VII.
Atlantica has not interfered with freedom of the high seas.
The Convention on the High Seas recognizes that any exercise of the
freedom of the high seas» including freedom of fishing, shall be conducted
with regard to the interests of other states.
CHS art. II.
Likewise, the
5
1956 draft of the International Law Commission on the Law of the Sea
(used by the 1958 Geneva Conference as the basis of discussion) recognized
freedom of the high seas and freedom of fishing as qualified rights to be
exercised with regard to:
" ..• the exercise of certain policing rights; the rights of
States relative to conservation of the living resources of
th~ high seas; the institution by a coastal state of a
zone contiguous to its coast for the purpose of exercising
certain well-defined rights."
Report of the International Law Commission, 8th Sess., [1956] 2 Y.B. Int'l
L. Comm'n 278, U.N . Doc. A/3/59 at 24 (1956).
Atlantica's actions are compatible with those authorized by the Convention
on Fishing and Conservation.
The Convention on Fishing and Conservation authorizes unilateral actibn
when scientific evidence indicates a need for the urgent application of conservational measures in light of existing
k~owledge
of the fishery.
The
continued refusal of Neptunius to reach any agreement on salmon and scientific
evidence suggesting the severe depletion of both the salmon and haddock stocks
living in AtlanticaYs adjacent waters necessitated Atlantica's action.
CFCLRHS art. VI, paras. 3-5; CFCLRHS art. VII, paras. 1-2.
B.
Declarations and bilateral agreements recognize the contiguous
zone concept as utilized by Atlantica.
Atlantica ' s interest as a coastal state in conserving living resources
has been recognized in the following declarations:
the Santiago Declaration
of 1952 (adopted by three states. recognizes unilateral extension - 200 miles);
Montivideo Declaration of 1970 (adopted by nine states, recognizes un ilateral extension - 200 miles); Lima Declaration of 1970 (adopted by twenty
states, recognizes unilateral extension) ; Santo Domingo Declaration of
1972 (adopted by ten states, recognizes unilateral extension - 200 miles).
6
Santiago Declaration of 1952, 1 Laws and Regulations on the Regime of the
Territorial Sea, (U.N. Legislative Series, 1957),
ST/LEG~ER.B/6
at 723
(1957); Montivideo Declaration of 1970, 9 INT'L L. MAT. 1081 (1970); Lima
Declaration of 1970, 10 INT'L L. MAT. 207 (1970); Santo Domingo Declaration
6f 1972, 11 INT'L 1. MAT. 892 (1972).
The 1972 Intergovernmental Conference on the Convention on Dumping of
Wastes at Sea, attended by seventy-six nations, in its Final Act [FA] expressly recognizes unilateral creation of contiguous
zones for protection
of the marine environment against pollution by coastal states.
XI, XIII; 11 INT'L L. MAT. 1304 (1972).
FA arts.
The definition of marine pollution
endorsed by the Joint IMCO/FAO/UNESCO/WMO Group of Experts on Scientific
Aspects of Marine Pollution describes pollution as being anything, introduced
into the marine environment by man. having a harmful effect on living resources.
U.N. Doc. A/7750 Pt. 1, at 3 (1969).
The right to establish
contiguous zones for the protection of living resources recognized by
seventy-six states in the FA, authorized Atlantica's creation of a contiguous
fisheries zone for the same purpose.
FA arts. XI, XIII.
Atlantica's use of the contiguous zone concept for conservational purposes has been recognized by numerous bilateral agreements.
~
Japan-
Republic of Korea, 4 INT'L L. MAT. 1128; Norway-United Kingdom, 4 INT'L L.
MAT. 163.
C.
Atlantica has followed the general practice among states in
unilaterally establishing a contiguous zone.
International law recognizes unilateral creation of contiguous zones
in many forms, such as Neptunius' twenty-five mile pollution zone. when
such zones are reasonably necessary to protect the coastal state's interest.
4 M. ~lITEMAN, DIGEST OF INTERNATIONAL LAW 22-35 (1965); P. JESSUP, THE LAW
OF TERRITORIAL WATERS AND MARITIME JURISDICTION 459 (1927).
Since 1960.
7
over fnrty states have unilaterally created exclusive fisheries zones
beyond their territorial sea.
J. ANDRASSY, INTERNATIONAL LAW AND THE
RESOURCES OF THE SEA 42 (1970); Senate Comm. on Commerce, 2d Sess., S.
Rep. No. 1280,5 (1966).
Protests to these actions have been inconse-
quential, with these zones being generally respected.
Record 20181-20182 (November 6, 1963).
The large number of unilaterally
created zones and the lack of effective protest
bility of Atlantica's action.
II.
109 Congressional
demonstrate the accepta-
1 D. O'CONNELL, INTERNATIONAL LAW 9 (1970).
ATLANTICA'S ENACTMENT OF THE FISHERIES ACT AND THE FISHERIES
RESEARCH ACT IS JUSTIFIED UNDER INTERNATIONAL LAW.
A.
The criteria for evaluating claims to fisheries zones is
"reasonableness,"
1.
Limitations regulating the breadth of fisheries zones
are not uniform under international law.
The practice and claims of states, which range from 12 to over 200
miles, demonstrate the absence of uniform limits for ' extending jurisdiction
over fisheries.
Limits and Status of the Territorial Sea, Exclusive Fishing
Zones, Fishery Conservation Zones and the Continental Shelf (FAO Leg. Ger.
No.8, 1969).
Atlantica's fisheries claims are not limited by fixed
boundaries which remain the same at all times,
(2 U.S.) 187, 234 (1804); T. KOBAYASHI, THE
Church v. Hubbart, 6 Cranch
&~GLO-NORWEGIAN
FISHERIES CASE
OF 1951 AND THE CHANGING LAW OF THE TERRITORIAL SEA 9-10 (U. Fla. Monograph
No. 26, 1965) .
A zone limited to 12 miles has been Buggested, but such an inflexible
delimitation is not the final anS\ver to fisheries conservation.
arb~trary
i~
While an
lZ-mile zone might protect fisheries resources in some instances,
has proved to be totally ineffective in others.
Teclaff, ~urisdiction
OVer Offshore Fisherles-How Far into the High Seas, 35 FORDHAM L. REV.
421,
8
(1967).
The wide variety of geographical and economic conditions of coastal
states makes it impractical to establish uniform rules governing the limits
of fisheries zones.
2.
D. BOWETT, supra at 60.
Customary international law recognize s the criteria
of reasonableness.
"A customary rule of international law has grown up under which
unilateral extensions of fisheries jurisdiction will be held
legal if they meet the test of reasonableness."
P. JESSUP, supra 95.
Extensions of jurisdiction warranted by circumstances
requiring such action are reasonable and not contrary to international law.
Lay1an, East, Present and Future peve10pment of the Customary International
Law of the Sea and Deep Seabed,
5 P ·I T'L LAWYER 442,444 (1971).
PrevaH-
ing international law requires a balancing of interests in determining the
reasonableness of Atlantica's extension of jurisdiction.
Zones for Pollution Control:
Wulf, Contiguous
An Appraisal Under International Law, SEA GRANT
BULLETIN NO. 13 , (U. Miami) 158-59 (1971).
E~ch
coastal state has the right
to establish the limits of its own maritime security in accordance with
reasonable criteria"
The Declaration of Montivideo, 9 INTfL L. MAT. 1081
(1970); 34 DEP'T STATE BULL. 296 9 298-99 (1956); S. RIESENFELD, PROTECTION
OF COASTAL FISHERIES UNDER INTERNATIONAL LAH 282 (1942).
B.
The zones established by Atlantica are reasonable.
1.
The Atlantica Fisheries Act is necessary to meet the needs of
Atlantica as a coastal state.
(a)
Conservation
Special interests of coastal states.
International law recognizes Atlantica's special interest in the
conservation of its coastal fisheries.
Law of the Sea:
McDougal & Burke, Crisis in the
Community Perspective versus National Egoism 67 YALE L.J.
539, 567-70 (1958).
Atlantica is overwhelmingly dependant upon her
9
fisheries for the livelihood of its people and its future economic development.
S. ODA, INTERNATIONAL CONTROL OF SEA RESOURCES 85 (1963); G. AMADOR,
THE EXPLOITATION AND CONSERVATION OF THE RESOURCES OF THE SEA 139 (2d ed. 1963).
Ecooomic interests have been recognized in international law as important
justifications for extensions of seaward jurisdiction.
LAH OF THE SEA, U.N. DOC. A/CONF. 13/38 (1958).
2 U.N. CONF. ON THE
When Atlantica was unable
to reach a conservation agreement with Neptunius on salmon and when its
scientists discovered the near economic extinction of the
haddock~
its
special interests in protecting these species required it to take emergency
action.
J. ANDRASSY, supra at 47-48; Allen, Law, Fish and Policy, 5INT'L
LAWYER 621,635 (1971).
Impact of technology.
With recent developments in the technology of fishing it is now known
that some stocks can be depleted beyond the 'point of self-renewal.
JOHNSTON. THE INTERNATIONAL LAW OF FISHERIES 3 (1965).
o.
The upward curve
of marine technology and the downward curve of Atlantica's fishery resources show a close relationship.
the Oceans:
Douglas, Environmental Problems of
The Need For International Controls, 1 ENVIR. L. 149, 152 (1972).
Grotius V theory that the resources of the sea are inexhaustible, and its
correl1ary notion that exploitation should be unregulated is no longer
supported by scientific facts.
Shuman, Pacific Fishery Conservation Con-
ventions, 2 SYDNEY L. REV. 436, (1958).
in depletion.
U. FLA. L. REV.
Unregulated fishing will result
Svar1ien, The Territorial Sea:
33~.
A Quest For Uniformity, 15
346 (1962).
Changing considerations.
Developments in marine technology have drastically changed the
considerations which are relevant to the regulation of ocean uses beyond
10
the territorial sea.
the Sea:
Miles, Technology, Ocean Management and the Law of
Some Current History, 46
DENV. L. J. 240, 254-60 (1969).
Neptunius has a well organized and modern distant water fishing fleet.
In
order to protect the living resources in the waters off its coast from excessive exploitation by such long distant fishing states, it is essential
for Atlantica to gain exclusive control over as wide an area as possible.
Customary international law imposes no duty on the major fishing states
to conserve fish. Heinzen, The Three-Mile Limit:
of the Seas,ll STAN. L. REV. 547, 660 (1959).
conservation have proved disasterous.
Douglas,
Preserving the Freedom
Multilateral attempts at
supr~
at 153.
Since the
nations of the world have been unable to find universally acceptable methods
of exploiting the limited fisheries resources, unilateral extensions of
fisheries jurisdiction serves as a functional conservational method.
Foster,
New Zealand's Coastal Jurisdiction,l CALIRW: INT'L L. J. 13, 20 (1970).
Benefits of
appro~riate
conservation measures.
Atlantica's fisheries control program, which is based on scientific
investigation and required control measures, is valid conservational practice.
Bishop, The 1958 Geneva Convention on Fishing and Conservation of
the Living Resources of the High Seas, 62 COLUM. L. REV. 1206, 1210-11 (1962).
The data supplied by Atlantica's fisheries scientists is sufficient to call
for regulation of its fisheries.
Fisheries:
Jacobson, Bridging the Gap in International
A Guide to Unilateral Action, 9 SAN DIEGO L. REV. 454, 484 (1972).
Quota regulations have proved to be inadequate in coping with the technological
changes in fishing.
Teclaff. supra at 411-12; F. CHRISTY & A. SCOTT, THE
COMMON WEALTH IN OCEAN FISHERIES:
ALLOCATION 209-10 (1965).
SOME PROBLEMS OF GROWTH AND ECONOMIC
On the other hand, use of closed areas is recognized
as an ar.ceptable conservational method.
Carroz & R?che, The International
11
Policing of High Seas Fisheries, 6 CAN. Y. B. INT'L. L. 61, 85-87 (1968).
The use of measures such as those implemented by Atlantica, will prevent
extermination of fishery stocks and increase their useful productivity.
Bishop, The 1958 Convention on Fishing and Conservation of the Living
Resources of the High
Sea~,
62 COLUM. L. REV. 1206, 1209-11 (1962).
The necessity for Atlantica's unilateral conservational measures .
Many conditions in existence today
1960 Geneva Conferences.
were not contemplated at 1958 and
The essential question before the 1973 Conference
will be whether the law of the sea can adapt to these new conditions and
eliminate the need for unilateral action.
66 DEp YT STATE BULL. 672 (1972).
The reality of the present situation is that the law of the sea, as it exists,
is inadequate to meet these new conditions and to serve the interests of
the international community.
W. BURKE, OCEAN SCIENCES, TECHNOLOGY, AND
THE FUTURE INTERNATIONAL LAW OF THE SEA
56~58
(1966) .
The reasonableness
which justifies Atlantica's action is provided by this reality.
(b) Ecological considerations.
Atlantica's coastal population exists in a state of mutual dependancy
with its fisheries -- the people depend on the fish for food and the fish
feed on organisms of t he continental shelf.
This biological continuity
between the coastal state and the sea can be destroyed by overfishing.
W.
ROYCE, INTRODUCTION TO THE FISHERY SCIENCES 178-82 (1972); Browning. InterAmerican Fisheries Resources - A Need For Cooperation, 2 TEX. INT'L. L. F. 1,
12-14 (1966).
When an endangered specie is part of a highly integrated
ecological unit, effective fishery management requires regulation of the
entire unit.
C:lJme ros
9
The 200 Mile Limit in the South Pacific:
A New
~ition in International Law with a Human and Judicial Content. 1964 ABA
12
INT'L & COMPo L. PROC. 56.
The area of the sea subject to Atlantica's
control must be large enough to permit such regulation of ecological
units.
Wolff, The United States, Chile, Ecuador and Peru:
f1ections on the 1969 Report of the Commission on
~arine
Some Re-
Science,
Engineering and Resources • in THE LAW OF THE SEA, NATIONAL POLICY
RECOMMENDATIONS 493-94 (L. Alexander ed. 1970).
Therefore , the 200
mile/continental margin zone established by Atlantica is reasonable.
(c)
Atlantica's ownership of its continental shelf.
The reasonableness of Atlantica's extension of fisheries jurisdiction
must be judged according to geographical realities .
J. AUGUSTE, TIlE CON-:-
TINENTAL SHELF 38-57 (1962); T. KOBAYASHI, supra at 12-15.
The continental
shelf doctrine is based on the concept that the continental shelf constitutes
a natural prolongation of the coastal state's land territory.
340, 357;
BROWN, THE LEGAL REGIME OF HYDROSPACE 76 (1971).
8 INT'L L. MAT.
The true
geographical limit of the continental shelf is the physical continental
margin.
Bayitch, International Fishery Problems in the Western Hemisphere,
10 MIAMI L. Q. 499 ) 504 (1956).
This continuation of the continental land
mass confers upon Atlantica the right to the resources existing in the
waters contiguous to its coast. Garaioca, The Continental. Shelf and the
Extension of the Territorial Sea, 10 MIAMI L. Q. 4.90, 495-98 (1956).
Several nations have proclaimed fisheries zones based on this continental
margin concept.
Menchaca~
Character and Scope of the Rights Declared and
Practiced Over the Continental Sea and Shelf, 47 AM. J. INT'L L. 120.
121-23 (1953).
Because of their inter-dependancy , there is no tangible
difference between the anadromous. dermesa1 and sedentary species for conservationa1 purposes.
W. ROYCE. INTRODUCTION TO THE FISHERY SCIENCES 336
(1972); Teclaff. supra at 424 .
.J
This lack of difference between living
13
resources within the limits of the continental margin further demonstrates
the reasonableness of Atlantica's actions.
(d)
Abstention doctrine
The doctrine of abstention imposes a duty upon Neptunius to abstain
from fishing in Atlantica's zone since such acts jeopardize th e we lfare
of the fisheries as a whole.
Sea:
Dean, The Geneva Conference on th e Law of the
What Was Accomplished, 52 AM. J. INT'l
L. 607,626-27 (1958).
Neptunius' acts of over-exploitation should not be allowed to nullify
At1antica v s investments of time and capital toward the development of its
coastal fisheries.
M. MCDOUGAL & W. BUill<E, supra at 956-60 ,
Equity re-
quires that Atlantica's efforts in cultiva ting and improving the fisheries
zone should be protected.
Goldie, Th e Oceans ' Resources and International.
Law - Possible Developments in Regional Fisheries Management, 8 COLUM. J.
TRANS NAT'L L. 1, 28-31 (1969).
(e)
Normative Nationalism
The customary rules of international law regarding the high seas were
developed by the major maritime powers for their own benefit.
Lecuona, The
Ecuador Fisheries Dispute, II J. MARITIME L. & COMM. 91, 111-113 (1970).
The doctrine of freedom of the high seas supported the acts of developed
states in taking a disproportionate share of ocean resources at the expense
of 1esser-developed coastal states.
para. 58 (16th Sess. 1971).
Report of the Conference of FAO, 15
In the near future, advanced technology will
make it possible to herd, corral and otherwise control fish movements by
the use of air-bubble curtains, electricity and sound waves.
A fishing
nation utilizing such techniques might thereby not only be capable of
capturing tremendous quantities of fish but could effectively deny other
nations access to a fish stock by herding schools of fish until it was
14
ready to harvest them.
Debate, 4 NAT.
RF :" ..
Eisenbud, Understanding the International Fisheries
LAWYER 19,37 (1971).
Developing states are justified in their fear that if they do not gain
some degree of control over their adjacent seas the more developed nations
will monopolize ocean resources..
ON OCEAN RESOURCES 3 (1969).
R. FRIEDHEIM, UNDERSTANDING THE DEBATE
This history of conduct on the part of de-
veloped states such as Neptunius and justifiable fears of future monopoly
by such states further demonstrate the reasonableness of Atlantica's
actions.
2.
The Atlantica Fisheries Research Act is necessary to insure
proper conservation of the resources of the fisheries zone.
Atlantica's right to regulate research reflects the firm agreement of
numerous states.
In the contiguous fisheries zone Atlantica must control
all research related to the purpose for which the zone was created, i.e.
the protection and conservation of natural resources.
W. BURKE, TOWARDS
A BETTER USE OF THE OCEAN 125-127 (1969).
The right to regulate research was recognized by the United States
when it extended its exclusive fisheries zone; by several Latin American
states in the 1970 Lima Declaration on the Law of the Sea; and by the
Carribean states at Santo Domingo in 1972.
16 U.S.C. § 1081 (1970); Lima
Declaration of 1970. supra; Santo Domingo Declaration of 1972, supra.
The
same rights were given to Atlantica to control research on the seabed in
the Convention on the Continental Shelf in 1958.
CCS art. 2 para. 1;
W. BULTER, THE SOVIET UNION AND THE LAW OF THE SEA 149 (1971).
The reasonableness of this act is further evidenced by a proposal to
the 1973 Conference on the Law of the Sea which specifies that ocean research should be regulated by charging fees, and the proceeds used to benefit
the developing nations.
66 DEpvT STATE BULL. 674 (1972).
15
Atlantica is fearful that developed states will mount intensified
pro~rams
state.
of scientific research, which will benefit only the developed
Deep-Se~bed
R. Friedheim, The Marine Commissions
Political Analysis, in THE LAW OF THE
91 (L. Alexander ed. 1970).
SEA~
Proposals - A
NATIONAL POLICY HECOMMENDATIONS
The only way developing states such as
Atlantica can benefit from this research is to gain Borne degree of control
over the conditions under which i t occurs.
Burke, Law, Science, and the
ocean, 3 NAT. RES. LAWYER 195, 209-10 (1970).
c.
The guota agreement between Atlantica and Neptunius
did not prevent the establishment of a fisheries zone.
In a world confronted with mass starvation, fish, as a ready source
of
p~otein,
acquires special meaning for Atlantica which is heavily dependant
Lecuona, supra at 106.
upon the sea.
When this agreement was made in
1970, total optimum haddock catch was estimated at 4750 units.
After the
fishing season, Atlantica's fisheries scientists found prudent conservation
practice demanded that the quota be reduced to 3500 units or less.
such a fundamental change in circumstances
occurs~
When
a State which is heavily
dependant upon fishing resources is justified in taking necessary conservational measures to prevent over-exploitation of such resources.
at 63-64.
ODA~
supra
This economic crisis destroyed the basis of the obligations within
the quota agreement and provided justification for ' Atlantica's action.
M. HAMBURGER, MORALS AND LAW, THE GROWTH OF ARISTOTLE'S THEORY 149-51 (1965);
Vienna Convention on the Law of Treaties, done May 23, 1969, U.N. Doc. A/CONF.
39/27. art . 62.
In the
reasons.
alternative~
Atlantica has not breached the agreement for two
There is no evidence indicating that Altantica has exceeded its
quota limitations.
limitations,
Furthermore, the agreement was only concerned with catch
It did not include any geographical considerations.
16
III.
THE SEIZURE OF THE POSEIDON AND THE PROSECUTION OF ITS CAPTAIN DID NOT
VIOLATE INTERNATIONAL LAH.
Atlantica as a sovereign state has a right to insure its self-protection.
Atlantica is entitled to take action necessary for its security.
H.
LAUTERPACHT, THE FUNCTION OF LAW IN THE INTERNATIONAL COMMUNITY 393-95 (1966).
"Ther.e ar. e dxcumstances frilling Rhort of occasions upon
which existence is immediately in question, in which through
a sort of extension of the idea of self-preservation to include self-protection against serious hurt, states are allowed
to disregard certain ordinary rules of law in the same manner
as if her existence were involved."
B.
HALL~
INTERNATIONAL LAW 278 (7th ed . 1917)
Security considerations.
Atlantica's coastal fisheries are essential to its security.
They are an
important source of food to its people and a source of raw material to its
emerging economy.
Atlantica is justifiably anxious to conserve the economic
resources which it is capable of developing and exploiting.
Geneva Conference on the Law of the Sea:
Dean, The Second
The Fight For Freedom of the Sea,
54 AM. J. INT'L L. 751, 762 (1960).
Need for unilateral action.
Atlantica's unilateral conservation effort is a result of the inability
of international law to protect rights of coastal states in this area.
Beesley, Canadian Practice in International Law during 1970, 9 CAN. Y.B .
INT'L L. 276-77 (1971).
The law regulating conservation of sea resources
in analogous to the law regulating the llse of forc8,
f6rce" ,wQuld be controlled by the United Nations.
Ideally~
the use of
In reality, experience
has shown that responses to illicit acts are met by individual or collective
actions of states, the United Nations being incapable of effective response,
In the absence of any international organization with the sanctioning force
to prevent or abate incidents of over-exploitation of living ocean resources,
17
the case for unilateral action grows stronger.
L. HARGROVE, LAW, INSTITUTIONS,
& THE GLOBAL ENVIRONMENT 99-100 (1972).
Atlantica's dependency on the sea has given it the right to determine
the extent of its maritime jurisdiction •. Atlantica's right to protect itself provides justification for its unilateral actions which prevent the
economic extinction of living ocean resources.
Browning, supra at 18-20.
1hreat of injury.
A nation is entitled to do what is necessary to preserve its security
when threatened with environmental injury from outside sources.
Canadian Artic Waters Pollution Prevention Act:
the Sea, 2 ENVIR. L. REV. 716, 728 (1971).
Bilder, The
New Stresses on the Law of
This right has been written into
treaty law with respect to polluting activity in the 1969 IMCO Convention on
High Seas and Oil Pollution.
9 INT'L L. MAT. 25 (1970).
Atlantica, in seeking
to protect the resources upon which it so heayily depends, has acted in selfdefense.
M. MCDOUGAL & F. FELICIANO, LAW AND WORLD MINIMUM PUBLIC ORDER
212-13 (1961).
Atlantica's exercise of jurisdiction over the Poseidon and its captain was
a lawful exercise of the right of self-preservation.
In March of 1971, after Neptunius had taken notice of Atlantica's acts,
the fishing vessel Poseidon was seized by Atlantica.
The jurisdiction exercised by Atlantica over the captain of the Poseidon
is inherent to its right of self-protection.
"The right of self-defense as
recognized by the law of nations, will confer on a State, in a case where its
safety is threatened, a self-protective jurisdiction which will entitle it to
visit and arrest a vessel on the high seas and to send her in for adjudication."
J. COLOMBOS, INTERNATIONAL LAW OF THE SEA 315 (6th ed. 1967).
18
CONCLUSION
WHEREFORE, for: t.hGl rp.3AonA set forth above.,
R~Apondent
resp e ctfully
prays that the International Court of Justice render its decision in fAvor
of Atlantica, finding that:
(1)
Atlantica has not violated international law by establishing a
contiguous fisheries zone for conservational purposes.
(2)
Atlantica' G enactment of the fisheries act and the fisheries research act is justified under international law.
(3)
Atlantica's seizure of the Poseidon and the prosecution of its
captain did not violate international law.
Respectfully submitted,
Team Eight