TELDERS INTERNATIONAL LAW MOOT COURT COMPETITION 2010
THE CASE OF PIRATES IN THE TREASURED SEA
(KINGDOM OF WARANGIA V. ESTADOS FEDERALES DE MARGARIDA)
MEMORIAL SUBMITTED BY
KINGDOM OF WARANGIA
(APPLICANT)
REGISTRATION NUMBER:
1-A
i
(a) TABLE OF CONTENTS
(a)
Table of Contents ..................................................................................................... i
(b)
List of Abbreviations ............................................................................................... ii
(c)
List of Sources ...................................................................................................... iv
(d)
Statement of Relevant Facts ................................................................................. xvii
(e)
Issues .................................................................................................................. xxii
(f)
Summary of Arguments ...................................................................................... xxv
(g)
Jurisdiction of the Court .................................................................................... xxvii
(h)
Argument ............................................................................................................... 1
1. Warangia did no violate the SC Res. 2008 ............................................................ 1
2.The attack on the Argonaut was unlawful .............................................................. 2
3. The seizure of the Argonaut was unlawful ............................................................ 6
4. The sinking of the Argonaut was unlawful.......................................................... 10
5. The arrest and detention of Jason violated international law................................ 12
6. The denial of the consular meeting by Margarida was unlawful .......................... 20
7. The box must be returned to Warangia ............................................................... 22
(i)
Submissions .......................................................................................................... 25
ii
(b) LIST OF ABBREVIATIONS
Argonaut
M.S. Argonaut
art.
article
ASR
International Law Commissions Draft Articles on State Responsibility
Banana
Republic of Banana
cf.
compare
CIL
customary international law
CHR
United Nations High Commissioner on Human rights
Doc.
Document
ed. / eds.
editor / editors
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
EEZ
Exclusive Economic Zone
e.g.
exempli gratia
et al.
et alii, et aliae
et seq.
et sequens
GA Res.
General Assembly Resolution
HRC
Human Rights Committee
IACHR
Inter-American Court of Human Rights
ICCPR
International Covenant on Civil and Political Rights
ICJ
International Court of Justice
ICTY
International Criminal Tribunal for the former Yugoslavia
i.e.
id est
ILC
International Law Commission
I.L.M.
International Legal Materials
IMO
International Maritime Organization
ITLOS
International Tribunal for the Law of the Sea
iii
Jason
Captain Jason
Margarida
Estados Federales de Margarida
mtg
meeting
NM
nautical miles
No.
Number
p. / pp.
page / pages
para. / paras.
paragraph / paragraphs
PCA
The Permanent Court of Arbitration
R.I.A.A.
Reports of International Arbitral Awards
SC Res.
Security Council Resolution
SC
The Security Council
Sess.
Session
UK
United Kingdom
UN
United Nations
UNCLOS
United Nations Convention on the Law of the Sea
UNTS
United Nationas Treaty Series
US
United States of America
v.
versus
VCCR
Vienna Convention on Consular Relations
VCDR
Vienna Convention on Diplomatic Relations
VCLT
Vienna Convention on the Law of Treaties
VCLTSIO
Vienna Convention on the Law of Treaties between States and
International Organizations or between International Organizations
vol.
volume
Warangia
Kingdom of Warangia
WMD
Weapons of Mass Destruction
YBILC
Year Book of the International Law Commission
iv
(c) LIST OF SOURCES
1. AWARDS BY COURTS AND TRIBUNALS
1.1 Permanent Court of International Justice
Factory at Chorzów, P.C.I.J. Series A, No. 17, 13 September 1928; hereinafter cited as the
Factory at Chorzów case.
Lotus Case, P.C.I.J. Series A, No. 10, 8 September 1927; hereinafter cited as the Lotus case.
The Oscar Chinn case, P.C.I.J. Series A./B, No. 63, 12 December 1934; hereinafter cited as
the Oscar Chinn case.
1.2 International Court of Justice (cases and advisory opinions)
Aegean Sea Continental Shelf Case (Greece v. Turkey), Judgment, ICJ Reports 1978, p. 3;
hereinafter cited as the Aegean Sea case.
Anglo-Iranian Oil Co. case (United Kingdom v. Iran), Judgment, ICJ Reports 1952 p. 93;
hereinafter cited as the Anglo-Iranian Oil case.
Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment, ICJ
Reports 2004, p. 12; hereinafter cited as the Avena case.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment,
ICJ Reports 2002, p. 3; hereinafter cited as the Arrest Warrant case.
Colombian-Peruvian Asylum Case (Colombia v. Peru), Judgment, ICJ Reports 1950, p. 266;
hereinafter cited as the Asylum case.
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Preliminary
Objections, ICJ Reports 1964, p. 6; hereinafter cited as the Barcelona Traction case.
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria:
Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 303; hereinafter cited as the
Cameroon/Nigeria case.
Competence of Assembly Regarding Admissions to the United Nations, Advisory Opinion,
ICJ Reports 1950, p. 4; hereinafter cited as the Competence case.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory,
Advisory Opinion, ICJ Reports 2004, p. 136; hereinafter cited as the Construction of a Wall
case.
v
Corfu Channel case (United Kingdom of Great Britain and Northern Ireland v. Albania),
Judgement, ICJ Reports 1949, p. 4; hereinafter cited as the Corfu Channel case.
Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the
Congo), Preliminary Objections, General List No. 103, 24 May 2007; hereinafter cited as the
Diallo case.
United States Diplomatic and Consular Staff in Teheran, (United States of America v. Iran),
Judgment, ICJ Reports 1980, p. 3; hereinafter cited as the Diplomatic and Consular Staff
case.
Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening),
Judgment, ICJ Reports 1986, p. 554; hereinafter cited as: the Frontier Dispute case.
Gabčíkovo-Nagymaros Project case (Hungary v. Slovakia), Judgment, ICJ Reports 1997, p. 7;
hereinafter cited as the Gabčíkovo-Nagymaros case.
Interpretation of Peace Treaties (second phase), Advisory Opinion, ICJ Reports 1950, p. 221;
hereinafter cited as the Interpretation of Peace Treaties case.
LaGrand (Germany v. United States of America), Judgment, ICJ Reports 2001, p. 466;
hereinafter cited as the LaGrand case.
Territorial Dispute (Libyan Arab Jamahiriya/Chad), Judgment, ICJ Reports 1994, p. 6;
hereinafter cited as the Libya/Chad case.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ
Reports 1971, p. 16; hereinafter cited as the Namibia case.
Case of Monetary Gold Removed from Rome in 1943 (Italy v. France, United Kingdom of
Great Britain and Northern Ireland, and United States of America), Preliminary Question, ICJ
Reports 1954, p. 19; hereinafter cited as the Monetary Gold case.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, ICJ Reports 1984, p. 392; hereinafter cited as the
Nicaragua (admissibility) case.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, ICJ Reports 1986, p. 14; hereinafter cited as the Nicaragua (merits) case.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996 p.
226; hereinafter cited as the Nuclear Test case.
Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment, ICJ Reports
2003, p. 161; hereinafter cited as the Oil Platforms case.
Temple of Preah Vihear (Cambodia v. Thail), Merits, ICJ Reports 1962 p. 6; hereinafter cited
as the Temple case.
vi
1.3 European Court of Human Rights
Case of Issa and others v. Turkey, Application No. 31821/96, Judgment, 16 November 2004;
hereinafter cited as the Issa case.
Case of Loizidou v. Turkey, Application No. 15318/89, Judgment, 18 December 1996;
hereinafter cited as the Loizidou case.
Case of Öcalan v. Turkey, Application No. 46221/99, Judgment, 12 March 2003; hereinafter
cited as the Öcalan case.
1.4 Permanent Court of Arbitration
Guyana v. Suriname (2008) 47 I.L.M. 166; hereinafter cited as the Guyana v. Suriname case.
Island of Palmas case (Netherlands v. USA), 4th April 1928, 2 R.I.A.A. 829; hereinafter cited
as the Islands of Palmas case.
Deserters of Casablanca (Germany v. France), 22nd May 1909; hereinafter cited as the
Deserters of Casablanca case.
1.5 Awards by other international tribunals including arbitral awards
Arbitration for the Brcko Area (The Republika Srpska v. The Federation of Bosnia and
Herzegovina) by the Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brcko Area,
36 I.L.M. 399 (1997); hereinafter cited as the Brcko arbitration.
Estate of Jean-Baptiste Caire (France v. United Mexican States), 7 June 1929, 5 R.I.A.A. 516;
hereinafter cited as the Caire case.
Deutsche Continental Gas-Gesellschaft v. Polish State, German-Polish Mixed Arbitral
Tribunal, 1 August, (1929), 5 ILR 11; hereinafter cited as the Deutsche Continenal GasGesellschaft arbitration.
I’m Alone Case (1935), 3 R.I.A.A. 1609; hereinafter cited as the I’m Alone case.
Prosecutor v. Dragan Nikolić, Case No. IT–94–2-PT, Decision on Defence Motion
Challenging the Exercise of Jurisdiction by the Tribunal, T.Ch. II, 9 Oct. 2002; hereinafter
cited as the Nikolić case.
Case concerning the differences between New Zealand and France arising from the Rainbow
Warrior affair, 6 July 1986, 19 R.I.A.A. 199; hereinafter cited as the Rainbow Warrior I
case.
Case concerning the differences between New Zealand and France concerning the
interpretation or application of two agreements, concluded on 9 July 1986 between the two
states and which related to the problems arising from the Rainbow Warrior Affair, 30 April
1990, 20 R.I.A.A. 215; hereinafter cited as the Rainbow Warrior II case.
vii
The Red Crusader case; 35 ILR 483 (1962); hereinafter cited as the Red Crusader case.
Prosecutor v. Tadić (1999), Case IT-94-1, 38 I.L.M. 1518; hereinafter cited as the Tadić case.
Texaco v. Libyan Arab Republic (US v Libya), 53 ILR 389 (1979); hereinafter cited as the
Texaco case.
Aguilar Amory and Royal Bank of Canada clams (Great Britain v. Costa Rica), 18 October
1923, 1 R.I.A.A. 369; hereinafter cited as the Tinoco arbitration.
M/V Saiga (No.2) Case, (Saint Vincent and the Grenadines v. Guinea), Judgement, 1 July
(1999), 38 I.L.M. 1323 (1999); hereinafter cited as the Saiga case.
1.6 Human Rights Committee
A v. Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (1997);
hereinafter cited as A v. Australia.
Ali Aqsar Bakhtiyari and Roqaiha Bakhtiyari v. Australia, Communication No. 1069/2002,
UN Doc. CCPR/C/79/D/1069/2002 (2003); hereinafter cited as Bakhtiyari v. Australia.
Rostislav Borisenko v. Hungary, Communication No. 852/1999,
CCPR/C/76/D/852/1999 (2004); hereinafter cited as Borisenko v. Hungary.
UN
Doc.
Hiber Conteris v. Uruguay, Communication No. 139/1983, UN Doc. Supplement No. 40
(A/40/40) at 196 (1985); hereinafter cited as Conteris v. Uruguay.
Michael Freemantle v. Jamaica, Communicaiton No. 625/1995,
CCPR/C/68/D/625/1995 (2000); hereinafter cited as Freemantle v. Jamaica.
UN
Doc.
Daniel Monguya Mbenge v. Zaire, Communication No.
CCPR/C/18/D/16/1977 (1983); hereinafter cited as Mbenge v. Zaire.
UN
Doc.
UN
Doc.
16/1977,
Womah Mukong v. Cameroon, Communication No. 458/1991,
CCPR/C/51/D/458/1991 (1994); hereinafter cited as Mukong v. Cameroon.
Luyeye Magana ex-Philbert v. Zaire, Communication No.
CCPR/C/19/D/90/1981 (1983); hereinafter cited as Philbert v. Zaire.
90/1981,
UN
Doc.
Aage Spakmo (initially represented by Mr. Gustav Hogtun) v. Norway, Communication No.
631/1995, UN Doc. CCPR/C/67/D/631/1995 (1999); hereinafter cited as Spakmo v. Norway.
Herman van der Houwen v. The Netherlands, Communication No. 583/1994, UN
Doc.CCPR/C/54/D/583/1994 (1995); hereinafter cited as Van der Houwen v. The
Netherlands.
viii
1.7 Municipal Courts
Appuhamy v. Gregory, Ceylon Supreme Court, October 8 (1953), 22 ILR 541; hereinafter
cited as Appuhamy v. Gregory.
Attorney-General of the Government of Israel v. Eichmann, District Court of Jerusalem
(1961), 36 ILR 5; hereinafter cited as The Attorney-General of the Government of Israel v.
Eichmann.
Frisbie v. Collins, 342 U.S. 519 (1952); hereinafter cited as Frisbie v. Collins.
R v. Horseferry Road Magistrates' Court, Ex parte Bennett, [1994] 1 A.C. 42; hereinafter
cited as R v. Horseferry Road Magistrates' Court.
State v. Beahan, 1992(1) SACR 307 (A) (Zimbabwe); hereinafter cited as State v. Beahan.
State v. Ebrahim, 95 ILR 417, hereinafter cited as State v. Ebrahim.
United States v Alvarez-Machain, 504 U.S. 655 (1992); hereinafter cited as US v. AlvarezMachain.
United States v. Toscanino, 500 F.2d 267 (1974), hereinafter cited as US v. Toscanino.
United States v. Verdugo-Urquidez, 939 F.2d 1341 (1990); hereinafter cited as US v.
Verdugo-Urquidez.
2. TREATIES
Agreement for the Implementation of the Provisions of the United Nations Convention on the
Law of the Sea of the 10 December 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks, (1995); hereinafter cited as UN
Fish Stocks Agreement.
International Covenant on Civil and Political Rights, (1966); hereinafter cited as ICCPR.
Montevideo Convention on the Rights and Duties of States, (1933); hereinafter cited as
Montevideo Convention.
Charter of the United Nations, (1945): hereinafter cited the UN Charter.
Statute of the International Court of Justice, (1945); hereinafter cited as ICJ Statute.
United Nations Convention on the Law of the Sea (1982); hereinafter cited as UNCLOS.
Vienna Convention on Consular Relations (1963); hereinafter cited as VCCR.
Vienna Convention on Diplomatic Protection (1961); hereinafter cited as VCDR.
Vienna Convention on the Law of Treaties, (1969); hereinafter cited as VCLT.
ix
Vienna Convention on the Law of Treaties between States and International Organizations or
between International Organizations, 1986; hereinafter cited as VCLTSIO.
3. BOOKS
Amerasinghe, C.: Evidence in International Litigation, Martinius Nijhoff/Brill Publishers
(2005); hereinafter cited as: Amerasinghe (2005).
Bantekas, I. and Nash, S.: International Criminal Law, 2nd edition, Cavendish Publishing
Limited (2003); hereinafter cited as: Bantekas and Nash (2003).
Brownlie, I.: Principles of Public International Law, 7th edition, New York, Oxford
University Press (2008); hereinafter cited as Brownlie (2008).
Cassese, A.: International Law, 2nd edition, Oxford University Press (2005); hereinafter cited
as Cassese (2005).
Cheng, B.: General Principles of Law as Applied by International Courts and Tribunals,
Cambridge University Press (2006); hereinafter cited as Cheng (2006).
Churchill, R. and Lowe, V. A. (eds.): The Law of the Sea, 3rd Edition, Manchester,
Manchester University Press (1999); hereinafter cited as Churchill and Lowe (1999).
Nordquist, M., Nandan, S., and Rosenne, S. (eds.): United Nations Convention on the law of
the Sea 1982, A Commentary, vol. II, Martinus Nijhoff Publishers (1993); hereinafter cited as
Commentary II to UNCLOS.
Nordquist, M., Nandan, S., and Rosenne, S. (eds.): United Nations Convention on the law of
the Sea 1982, A Commentary, vol. III, Martinus Nijhoff Publishers (1995); hereinafter cited as
Commentary III to UNCLOS.
Nordquist, M., Rosenne, S., and Sohn, L. (eds.): United Nations Convention on the law of the
Sea 1982, A Commentary, vol. V, Martinus Nijhoff Publishers (1989); hereinafter cited as
Commentary V to UNCLOS.
Crawford, J.: The International Law Commission's Articles on State Responsibility–
Introduction, Text and Commentaries, Cambridge, Cambridge University Press (2002);
hereinafter cited as Crawford (2002).
Denza, E.: Diplomatic Law, A Commentary on the Vienna Convention on Diplomatic
Relations, 3rd edition, Oxford University Press (2008); hereinafter cited as Denza (2008).
Dixon, M.: Textbook on International Law, 6th edition, Oxford University Press (2007);
hereinafter cited as Dixon (2007).
Duffy, H.: The ‘War on Terror’ and the Framework of International Law, Oxford University
Press (2005); hereinafter cited as Duffy (2005)
x
Freestone, D.; Barnes, R.; and Ong, D.: The law of the sea: progress and prospects, Oxford
University Press (2006); hereinafter cited as Freestone et al. (2006).
Fry, M.; Goldstein, E.; and Langhorne, R. (eds.): Guide to International Relations and
Diplomacy, London, Continuum (2002); hereinafter cited as Fry et al. (2002).
Gray, C.: International Law and the Use of Force, 3rd edition, Oxford University Press
(2008); hereinafter cited as Gray (2008).
Harris, D.: Cases and materials on International Law, Sweet and Maxwell (2004); hereinafter
cited as Harris (1998).
Joseph, S., Schultz, J., Castan, M., and Evatt, E. (eds.): The International Covenant on Civil
and Political Rights: Cases, Materials and Commentary, 2nd edition, Oxford University Press
(2004); hereinafter cited as Joseph et al. (2004).
Malanczuk, P.: Akehurst’s Introduction to International Law, 7th edition, Routledge (1997);
hereinafter cited as Malanczuk (1997)
Nowak, M.: UN Covenant on Civil and Political Rights. CCPR Commentary, 2nd revised
edition, Kehl Germany (2005); hereinafter cited as Nowak (2005).
Oppenheim, L., Lauterpacht, H. (eds.): International Law: A treatise, 8th edition, Longmans
(1955); hereinafter cited as Oppenheim (1955).
Jennings, R. and Watts, A. (eds.): Oppenheim´s International Law, parts 1-4, 9th edition,
Longman Group (1992); hereinafter cited as Jennings and Watts (1992).
Paust, J.: Beyond the Law: The Bush Administration’s Unlawful Responses in the “War” on
Terror, Cambridge University Press (2007); hereinafter cited as Paust (2007).
Roberts, I. (ed): Satow’s Diplomatic Practice, 6th edition, Oxford University Press, (2009);
hereinafter cited as Roberts (2009).
Shaw, M. N.: International law, 6th edition, Cambridge University Press (2008); hereinafter
cited as Shaw (2008).
Simma, B.; Mosler, H.; Randelzhofer, A.; Tomuschat, C. and Wolfrum, R. (eds.): The
Charter of the United Nations: A Commentary, 2nd edition, Oxford University Press (2002);
hereinafter cited as Simma (2002)
van Alebeek, R.: The Immunity of States and Their Officials in International Criminal Law
and International Human Rights Law, Oxford, Oxford University Press (2008); hereinafter
cited as van Alebeek (2008).
xi
4. Articles in Books, Journals, or Online Databases
Barry, I.: The Right of Visit, Search and Seizure of Foreign Flagged Vessels on the High Seas
Pursuant to Customary International Law: a Defence of the Proliferation Security Initiative
in 33 Hofstra Law Review (2004), p. 299; hereinafter cited as Barry (2004).
Brown, J.: Diplomatic Immunity: State Practice under the Vienna Convention on Diplomatic
Relations in 37 International and Comparative Law Quarterly (1988), p. 53; hereinafter cited
as Brown (1988).
Byers, M.: Proliferation Security Initiative (PSI) in The Max Planck Encyclopedia of Public
International Law, Oxford University Press, at www.mpepil.com, the article was written in
June 2007 and lastly accessed 17 January 2010; hereinafter cited as Byers (2007).
Calamita, J.: Sanctions, Countermeasures and the Iranian Nuclear Issue in 42 Vanderbilt
Journal of Transnational Law (2009), p. 1393; hereinafter cited as Calamita (2009).
Costi, A.: Problems with Current International and National Practices Concerning
Extraterritorial Abductions in 8 Yearbook of the New Zealand Association for Comparative
Law (2002), p. 57; hereinafter cited as Costi (2002).
Fink, M. and Galvin R.: Combating Pirates off the Coast of Somalia: Current Legal
Challenges, in 56 Netherlands International Law Review (2009), p. 367; hereinafter cited as
Fink and Galvin (2009).
Francioni, F.: Use of Force, Military Activities, and the New Law of the Sea, in Cassese,
A., (ed.): The Current Legal Regulation of the Use of Force, Martinus Nijhoff Publishers
(1986); hereinafter cited as Francioni (1986).
Gluck, J.: The Customary International Law of State-Sponsored International Abduction and
United States Courts in 44 Duke Law Journal (1994), p. 612; hereinafter cited as Gluck
(1994).
Guilfoyle, D.: Martime Interdiction of Weapons of Mass Destruction in 12 Journal of Conflict
and Security law (2007), p. 1; hereinafter cited as Guilfoyle (2007).
Hernández-Truyol, B.: Embargo Or Blockade? The Legal And Moral Dimensions Of The U.S.
Economic Sanctions On Cuba in 4 Intercultural Human Rights Law Review (2009), p. 53;
hereinafter cited as Hernández-Truyol (2009).
Highet, K.: International Decisions in 86 American Journal of International Law (1992), p.
811; hereinafter cited as Highet (1992).
Jamnejad, M. and Wood, M.: The Principle of Non-intervention in 22 Leiden Journal of
International Law (2009), p. 345; hereinafter cited as Jamnejad and Wood (2009).
Jaspers, K.: Who Should Have Tried Eichmann? in 4 Journal of International Criminal Justice
(2006), p. 853; hereinafter cited as Jaspers (2006).
xii
Kunig, P.: Proliferation Security Initiative (PSI) in The Max Planck Encyclopedia of Public
International Law, Oxford University Press, at www.mpepil.com, the article was written in
April 2007 and lastly accessed 17 January 2010; hereinafter cited as Kunig (2007).
Kwast, P.: Maritime Law Enforcement and the Use of Force: Reflections on the
Categorisation of Forcible Action at Sea in the Light of the Guyana/Suriname Award in 13
Journal of Conflict & Security Law (2008), p. 49; hereinafter cited as Kwast (2008).
König, D.: Flags of Ships in The Max Planck Encyclopedia of Public International Law,
Oxford University Press, at www.mpepil.com, the article was written in April 2009 and lastly
accessed 17 January 2010; hereinafter cited as König (2009).
Lee, E.: Legal Analysis of the 2006 UN Security Council Resolutions Against North Korea’s
WMD Development in 31 Fordham International Law Journal (2007), p. 1; hereinafter cited as
Lee (2007).
Lowe, V.: US Extra Territorial Jurisdiction: the Helms-Burton and D’Amato Acts in 46
International and Comparative Law Quarterly (1997), p. 378; hereinafter cited as Lowe
(1997).
Luis Jesus, J.: Protection of Foreign Ships against Piracy and Terrorism at Sea: Legal
Aspects in 18 The International Journal of Maritine and Coastal Law (2003), p. 363;
hereinafter cited as Luis Jesus (2003).
Mann, F.: Reflections on the Prosecution of Persons Abducted in Breach of International Law
in Dinstein, Y. (ed.): International Law at a time of Perplexity: Essays in Honour of Shabtai
Rosenne, Brill (1989); hereinafter cited as Mann (1989).
Marcoux, L.: Protection from Arbitrary Arrest and Detention Under International Law in 2
Boston College International & Comparative Law Review (1982), p. 345; hereinafter cited as
Marcoux (1997).
Maxwell, M. and Watts, M.: ‘Unlawful Enemy Combatant’: Status, Theory of Culpability, or
Neither? in 5 Journal of International Criminal Justice (2007), p. 19; hereinafter cited as
Maxwell and Watts (2007).
Moeckli, D.: The US Supreme Court's "Enemy Combatant" Decisions: a "Major Victory for
the Rule of Law"? in 10 Journal of Conflict and Security Law (2005), p. 72; hereinafter cited
as Moeckli (2005).
Morgenstein, F.: Jurisdiction in Seizures Effected in Violation of International Law in 29
British Yearbook of International Law (1952), p.265; hereinafter cited as Morgenstein
(1952).
O’Higgins, P.: Unlawful Seizure and Irregular Extradition in 36 British Yearbook of
International Law (1960), p. 279; hereinafter cited as O’Higgins (1960).
Preuss, L.: Kidnaping of Fugitives from Justice on Foreign Territory in 29 American Journal
of International Law (1935), p. 502; hereinafter cited as Preuss (1935).
xiii
Preuss, L.: Settlement of Jacob Kidnapping Case in 30 American Journal of International Law
(1936), p. 123; hereinafter cited as Preuss (1936).
Scholem, G.: On Sentencing Eichmann to Death in 4 Journal of International Criminal Justice
(2006), p. 859, hereinafter cited as Scholem (2006).
Shearer, I.: Piracy in The Max Planck Encyclopedia of Public International Law, Oxford
University Press, at www.mpepil.com, the article was written in June 2008 and lastly
accessed 17 January 2010; hereinafter cited as Shearer (2008).
Sloan, J.: Prosecutor v. Dragan Nikolic : Decision on Defence Motion on Illegal Capture in
16 Leiden Journal of International (2003), p. 541; hereinafter cited as Sloan (2003).
Soons, A.: Enforcing the Economic Embargo at Sea, in Gowlland-Debbas, V. (ed.): United
Nations Sanctions and International Law, Kluwer Law International (2001); hereinafter cited
as Soons (2001).
Syrigos, A.: Developments On The Interdiction Of Vessels On The High Seas in Strati, A.;
Gavouneli, M.; and Skourtos, N. (eds.): Unresolved Issues and New Challenges to the Law of
the Sea: Time Before and Time After, Martinus Nijhoff Publishers (2006); hereinafter cited as
Syrigos (2006).
Szasz, P.: The Security Council Starts Legislating in 96 American Journal of International
Law (2002), p. 901; hereinafter cited as Szasz (2002).
Thomas, T.: The Proliferation Security Initiative: Towards Relegation of Navigational
Freedoms in UNCLOS? An Indian Perspective in 8 Chinese Journal of International Law
(2009), p. 657; hereinafter cited as Thomas (2009).
Treves, T.: Piracy, Law of the Sea, and Use of Force: Developments of the Coast of Somalia,
in 20 European Journal of International Law (2009), p. 18; hereinafter cited as: Treves
(2009).
van Alebeek, R.: Immunity, Diplomatic in The Max Planck Encyclopedia of Public
International Law, Oxford University Press, at www.mpepil.com, the article was written in
May 2009 and lastly accessed 17 January 2010; hereinafter cited as van Alebeek (2009).
Vierucci, L.: Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial
Safeguards to which Guantanamo Bay Detainees are Entitled in 1 Journal of International
Criminal Justice (2003), p. 284; hereinafter cited as: Vierucci (2003).
Wood, M.: The Interpretation of Security Council Resolutions, in 2 Max Planck Yearbook of
International Law (1998), p. 85; hereinafter cited as Wood (1998).
xiv
5. RESOLUTIONS
5.1 Resolutions from the Security Council
Question relating to the case of Adolf Eichmann. SC Res. 138, UN SCOR, 15th Sess., 868th
mtg, UN Doc. S/4349 (1960); hereinafter cited as SC Res. 138 (1960).
Question concerning the situation in Southern Rhodesia. SC Res. 217, UN SCOR, 20th Sess.,
1265th mtg, UN Doc. S/RES/217 (1965); hereinafter cited as SC Res. 217 (1965).
Question concerning the situation in Southern Rhodesia. SC Res. 221, UN SCOR, 21st Sess.,
1277th mtg, UN Doc. S/RES/217 (1966); hereinafter cited as SC Res. 221 (1966).
Iraq-Kuwait. SC Res. 661, UN SCOR, 45th Sess., 2933rd mtg, UN Doc. S/RES/661 (1990);
hereinafter cited as SC Res. 661 (1990).
Iraq-Kuwait. SC Res. 665, UN SCOR, 45th Sess., 2938th mtg, UN Doc. S/RES/665 (1990);
hereinafter cited as SC Res. 665 (1990).
Libyan Arab Jamahiriya. SC Res. 748. UN SCOR, 47th Sess., 3063rd mtg UN Doc.
S/RES/748 (1992); hereinafter cited as SC Res. 748 (1992).
Bosnia and Herzegovina. SC Res. 787. UN SCOR, 47th Sess., 3137th mtg, UN Doc.
S/RES/787 (1992); hereinafter cited as SC Res. 787 (1992).
Bosnia and Herzegovina. SC Res. 820. UN SCOR, 48th Sess., 3200th mtg, UN Doc
S/RES/820 (1993); hereinafter cited as SC Res. 820 (1993).
Haiti. SC Res. 875. UN SCOR, 48th Sess., 3293rd mtg, UN Doc S/RES/875 (1993);
hereinafter cited SC Res. 875 (1993).
On sanctions for restoration of democracy and return of the legitimately elected President to
Haiti. SC Res. 917. UN SCOR, 49th Sess., 3376th mtg, UN Doc S/RES/917 (1994) ;
hereinafter cited as SC Res. 917 (1994).
On the expansion of the mandate of the UN Assistance Mission for Rwanda and imposition of
an arms embargo on Rwanda. SC Res. 918. UN SCOR, 49th Sess., 3377th mtg, UN Doc
S/RES/918 (1994) ; hereinafter cited as SC Res. 918 (1994).
On the situation in Afghanistan. SC Res. 1333. UN SCOR, 55th Sess., 4251st mtg, UN Doc
S/RES/1333 (2000); hereinafter cited as SC Res. 1333 (2000).
The situation between Iraq and Kuwait. SC Res. 1441. UN SCOR, 57th Sess., 4644th mtg,
UN Doc S/RES/1441 (2002); hereinafter cited as SC Res. 1441 (2002).
Non-proliferation of weapons of mass destruction. SC Res. 1540. UN SCOR, 59th Sess.,
4956th mtg, UN Doc S/RES/1540 (2004); hereinafter cited as SC Res. 1540 (2004).
Non-proliferation/Democratic People’s Republic of Korea. SC Res. 1718. UN SCOR, 61st
Sess., 5551st mtg, UN Doc S/RES/1718 (2006) ; hereinafter cited as SC Res. 1718 (2006).
xv
Non-proliferation. SC Res. 1747. UN SCOR, 62nd Sess., 5647th mtg, UN Doc S/RES/1747
(2007) ; hereinafter cited as SC Res. 1747 (2007).
The situation in Somalia. SC Res. 1816. UN SCOR, 63rd Sess., 5902nd mtg, UN Doc
S/RES/1816 (2008); hereinafter cited as SC Res. 1816 (2008).
The situation in Somalia. SC Res. 1838. UN SCOR, 63rd Sess., 5987th mtg, UN Doc
S/RES/1838 (2008); hereinafter cited as SC Res. 1838 (2008).
5.2 Resolutions from the General Assembly
Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, 24 October
1970, GA Resolution 2625 (XXV); hereinafter cited as the Friendly Relations Declaration.
General and Complete Disarmament, 20 November 1959, GA Resolution 1378 (XIV);
hereinafter cited as the General and Complete Disarmament Resolution.
Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of
States, 9 December 1981, GA Resolution 103 (XXXI); hereinafter cited as the Declaration
on the Inadmissibility of Intervention.
6. OTHER DOCUMENTS
Draft Articles on Responsibility of States for Internationally Wrongful Acts, from the
International Law Commissions fifty-third session in 2001, in the YBILC (2001), vol. II, part
two; hereinafter cited as ASR.
Commission on Human Rights, Study of the Right of Everyone to be Free from Arbitrary
Arrest, Detention and Exile, UN Doc. E/CN.4/826/Rev.1, UN Sales No. 65.XIV.2 (1964);
hereinafter cited as CHR, Study of the Right of Everyone to Be Free.
Draft Articles on Consular Relations with Commentaries (1961), adopted on the International
Law Commissions thirteenth session and appearing in the Yearbook of the International Law
Commission 1961, vol. 2; hereinafter cited as Draft Articles on Consular Relations.
Draft Articles on Diplomatic Protection (2006), adopted on the International Law
Commissions fifty-eight session and appearing in the Official Records of the General
Assembly, Sixty-first Session, Supplement No. 10 (A/61/10); hereinafter cited as Draft
Articles on Diplomatic Protection.
Commission on Human Rights, Civil And Political Rights, Including The Question Of
Torture And Detention, Report of the Working Group on Arbitrary Detention, 16 December
2002, UN Doc. E/CN.4/2003/8; hereinafter cited as CHR Report: The Question of Torture
and Detention.
xvi
Codification of International Law: Part IV–Piracy in 26 Supplement to the American Journal
of International Law (1932), p. 739; hereinafter cited as the Harvard Draft Convention on
Piracy.
Codification of International Law: Part II – Jurisdiction with Respect to Crime in 29
Supplement to the American Journal of International Law (1935), p. 435; hereinafter cited as
Harvard Draft on Jurisdiction (1935).
Human Rights Committee, General Comment No. 08: Right to liberty and security of persons
(Art. 9), Sixteenth Sess., 30/06/82; hereinafter cited as HRC, ICCPR General Comment
No. 8.
UN Human Rights Committee (HRC), UN Human Rights Committee: Concluding
Observations: Gabon, 10 November 2000, UN Doc. CCPR/CO/70/GAB; hereinafter cited as
HRC, Concluding Observations on Gabon.
Advisory Opinion OC-16/99 of October 1, 1999, from IACHR: The Right to Information on
Consular Assistance in the Framework of the Guarantees of the Due Process of Law;
hereinafter cited as IACHR, Advisory Opinion on Consular Relations.
White House statement: Fleisher, White House Press Secretary, Press Briefing, 11 December
2002, available at http://www.whitehouse.gov/news/ releases/2002/12/20021211-5.html#2,
last accessed on 7th January 2010; hereinafter cited as White House Press Briefing on 11
Dec 2002.
The Third US Restatement of Foreign Relations Law, St Paul, 1987; hereinafter cited as
Third Restatement (1987).
Report of the International Law Commission to the General Assembly, In the YBILC (1956),
vol. 2, p. 253 et seq.; hereinafter cited as YBILC (1956).
US. Department of State. Foreign Relations of the United States (Diplomatic Correspondence
of the United States) U.S. Government Printing Office, Washington (1863); hereinafter cited
as Foreign Relations of the United States (1863).
xvii
(d) STATEMENTS OF RELEVANT FACTS
Warangia, Banana, Margarida, and Tortuga all face the Treasured Sea. None of them are
claiming an EEZ.
Margarida and Banana do not entertain diplomatic relations. Margarida has repeatedly
refused to recognise the Government of Banana has enacted legislation, the so-called
Nacho/Fijoles Act of 1991, that criminalises any engagement in commerce of any kind with
Banana by any person who is a national of, resides in, or has a permanent business
establishment in Margarida.
Banana is suspected of conducting a clandestine nuclear programme. Acting on art. 41 of
the UN Charter, the UN SC passed Resolution 2008 of 24 March 2007. It calls upon all states
“to exercise vigilance and restraint in the supply, sale or transfer directly or indirectly from
their territories or by their nationals or using their flag vessels or aircraft of any battle tanks,
armoured combat vehicles, large caliber artillery systems, combat aircraft, attack helicopters,
warships, missiles or missile systems as defined for the purpose of the United Nations
Register on conventional arms to the Republic of Banana, and in the provision to the Republic
of Banana of any technical assistance or training, financial assistance, investment, brokering
or other services, and the transfer of financial resources or services, relating to the supply,
sale, transfer, manufacture or use of such items in order to prevent a destabilising
accumulation of arms”.
Pirates plague the Treasured Sea. Recently, they have extended their operating capabilities
through the use of the captured vessels as “mother ships” from which their speedboats can set
off to attack other ships. The Government of Tortuga requested the UN SC to deal with the
situation. Acting on Chapter VII of UN Charter, the UN SC passed Resolution 2224 of 16
December 2008. The resolution “[c]alls upon States and regional organizations that have the
capacity to do so, to take part actively in the fight against piracy and armed robbery at sea off
xviii
the coast of Tortuga, in particular, consistent with this resolution and international law, by
deploying naval vessels and military aircraft, and through seizure and disposition of boats,
vessels, arms and other related equipment used in the commission of piracy and armed
robbery off the coast of Tortuga, or for which is reasonable ground for suspecting such use”.
The Argonaut is a merchant vessel registered in Warangia. It is owned and operated by
Golden Fleece, a Warangian shipping company. Jason is the master of the Argonaut. The
crew of the Argonaut consists mainly of Warangians and Jason is as well of Warangian
nationality.
On 30 August 2009, Banana successfully tested a missile that could target most cities of
Margarida, including its capital. In a speech, the President of Banana stated that Banana
wishes to “defend by all means the glorious achievements of [its] progressive revolution from
the imperialistic aggressions of the Margaridans and the destructive influences of their corrupt
ways”.
In early September 2009, the Argonaut sailed into the Treasured Sea. At that time, it flew
the Warangian flag. It was reported in international media that the Argonaut is bound for
Banana and carried inertial navigation systems and electronics that may be used to equip
long-range missiles. However, these rumors are not confirmed.
On 3 September 2009, pirates boarded the Argonaut and took the crew hostage. The next
day at 11.55, pirates unsuccessfully attacked another merchant vessel about 32 NM from the
Argonaut. At 14.20, the Margaridan helicopter frigate EFS Trinidad spotted M.S. Argonaut
and reported that the vessel hoisted aboard two speedboats with their crew. EFS Trinidad,
patrolling that area of the Treasured Sea, was ordered by the Margaridan Navy Commander to
set course for M.S. Argonaut. At 17.20, EFS Trinidad received an executive order from the
Navy Command of Margarida to “[t]ake all appropriate action, at commander's discretion, in
order to prevent the Argonaut from entering the territorial waters of the Republic of Banana
xix
and to rescue hostages”.
At 18.30, during a press conference, the Spokesman of Banana’s Ministry of Foreign
Affairs warned Margarida not to violate the territorial integrity of Banana. He announced that
promising negotiations with the pirates, concerning the liberation of vessel and crew, already
was taking place.
At 20.22, M.S. Argonaut was positioned ½ NM from the territorial waters of Banana and
was not flying any flag. The EFS Trinidad was positioned at at 4 NM from from the
Argonaut, an extremely efficient range of its cannons. The EFS Trinidad, after failing to make
radio contact, sent light signals ordering the Argonaut to stop. The signals were not responded
to. At 20.24, EFS Trinidad fired a first gunshot across the Argonauts bow. A second gunshot
at the Argonaut was delivered only one minute later. It hit the Argonaut’s aft and destroyed its
hull and power transmission. The Argonaut started to burn, being still outside the territorial
waters of Banana. While still burning, it floated into the territorial waters of Banana. During
and after these events no communication was sent from the Argonaut.
At 20.35 marines transported by a helicopter from the EFS Trinidad boarded the Argonaut,
positioned one mile inside the territorial waters of Banana. The marines captured seven
pirates, rescued the crew and entered the captain’s office. They found Jason, wearing the
uniform of a master in service of the Golden Fleece, on the ship’s bridge together with three
armed pirates. Before leaving the ship, the marines set time charges at several points of the
hull. At 21.00, the charges were detonated and the Argonaut sank fast.
The following items were seized from the ship by marines:
a) copies of bills of lading, describing the cargo as pharmaceutical products and medical
apparatus destined for Banana not specifying the shipper;
b) a patent letter identifying Jason as Lieutenant Commander of naval reserve of Warangia;
xx
c) a copy of a letter of accreditation, introducing Capt. Jason as assistant to the naval
attaché of the Warangian Embassy in the Republic of Banana, on stationery of the Foreign
Office of Warangia and signed by its undersecretary for overseas;
d) a box taken from the vessels cargo, which the Margaridan authorities have not released
any information on.
Jason and the pirates were taken to Limbo Harbour, were they are detained, while the rest
of the crew was repatriated. Limbo Harbour is a naval base operated by Margarida under a
99-years-lease granted by Banana that excludes the exercise of any jurisdictional rights in the
Limbo Harbour Area by Banana, whose sovereignty over the area is however explicitly
confirmed by the lease. At Limbo Harbour, pirates captured by the Margarida are detained as
“unlawful enemy combatants”. Under rules established by the executive branch of the
Government of Margarida, detainees in Limbo Harbour have no right to have a judge review
their detention. In a communiqué from the Margaridan Ministry of Defence it was explained
that Jason had been detained in order to determine whether he should have been detained at
Limbo as an “unlawful enemy combatant” or tried in Margarida for violations of the
Nachos/Frijoles Act and the UN embargo.
On 8 September 2009, Warangia’s consul in Caramba requested a meeting with Jason. His
request was rejected on the basis that Jason was detained outside the territory of Margarida.
Another request by the Golden Fleece, that the cargo box should be returned was also denied.
On 11 September 2009, Warangia filed an application in the International Court of Justice
requesting the Court to adjudge and declare that:
1. Margarida have violated, and continues to violate, international law by
a) the attack on, the seizure of and the sinking of the Argonaut;
b) the arrest and detention of Jason;
c) the refusal of the requested meeting between the Warangia’s consul and Jason;
xxi
d) the seizure and the refusal to deliver the cargo box and its contents.
2. Margarida are consequently ordered to
a) immediately release Captain Jason from detention;
b) deliver the cargo box and its contents to Warangia;
c) pay compensation to Warangia for the loss of the Argonaut and its cargo.
All mentioned states are members of the UN. Warangia, Margarida and Banana are parties
to UNCLOS, ICJ Statute, VCDR, VCCR, VCLT, ICCPR, SUA Convention, and all four
Geneva Conventions.
xxii
(e) ISSUES
Warangia asks the honourable Court the following questions:
1. Warangia did not violate the SC Resolution 2008
To what extent does SC Res. 2008 confer a binding obligation upon Warangia?
What are the rules on interpreting SC resolutions?
What, if any, kind of actions does SC Res. 2008 require from UN states?
Does missile systems, as defined in the UN Register for Conventional Arms, include dual
use products?
What evidential value is given to unconfirmed reports from international media?
Can Margarida invoke its domestic law in order to not return or provide the court with the
seized box?
What kind of evidential value does evidence obtained in violation of international law
have?
Can actions conducted by a private person acting in his private capacity be attributed to the
state, even though the state did not have control over the actions?
2. The Attack on the Argonaut was unlawful
Was the Argonaut a pirate ship at the time it was attacked?
Did the Argonaut keep its nationality even if it was at some point in time a pirate ship?
Did the attack on the Argonaut constitute an armed attack or enforcement measures?
Did the attack on the Argonaut violate art. 2(4) of the UN Charter?
Did Margarida have a rule to enforce that allowed them to use force against the Argonaut?
If they were allowed, could enforcement measures against the Argonaut have been
performed without the use of force?
If enforcement measures was allowed and they could rightfully involve the use of force,
was that force then anyway excessive?
xxiii
Could either Resolution 2224 or 2008 enhance the right to use force against the Argonaut?
3. The Seizure of the Argonaut was unlawful
Is exercise of enforcement jurisdiction on the ship of another state illegal unless there is a
permissive rule or a waiver to the contrary?
Could Margarida seize the Argonaut on the territorial waters of Banana in accordance with
art. 105 of the UNCLOS?
Does either Resolution 2224 or 2008 authorize seizure of the Argonaut?
Could the act of taking Jason and the crew from the ship constitute an act in accordance
with art. 98 of UNCLOS?
Did the seizure of the Argonaut violate the principle of non-intervention?
4. The Sinking of the Argonaut was unlawful
Did the sinking of the Argonaut constitute a breach of international law?
Were there any circumstances precluding wrongfulness for the sinking?
Did Margarida contribute to a possible situation of necessity?
Does Margarida have an obligation to compensate Warangia for the sinking?
5. The arrest and detention of Jason violated international law
Did Jason enjoy diplomatic immunity at the time he was arrested?
If Jason enjoyed diplomatic immunity at the time he was arrested, should that immunity
then have ruled out his arrest?
Does Jason enjoy diplomatic immunity on Limbo according to art. 40(4) of the VCDR, as
his presence there is due to force majeure and Limbo is equated with the territory of
Margarida?
Did the arrest of Jason take place on the Argonaut?
Did Margarida violate the sovereignty of Warangia if the arrest took place on the
Argonaut?
xxiv
Is Margarida under an obligation to return Jason to Warangia?
Was the arrest of Jason arbitrary and consequently in violation of art. 9 of the ICCPR?
Was the detention of Jason arbitrary and consequently in violation of art. 9 of the ICCPR?
Could Margarida justify its derogations from the ICCPR on the basis of art. 4 of that
instrument?
Does the male captus bene detentus doctrine have the status of customary law?
If that was the case, could Margarida then justify the arrest and their detention of Jason by
recourse to the male captus bene detentus doctrine?
6. The Denial of a consular meeting by Warangia was unlawful
Does the VCCR apply in Limbo Harbour as Margarida exercises effective control there?
Does a visit according to the first sentence of art. 36(1)(c) have to be made by a consul in
the prescribed consular district?
If the court finds that the right to visit in the first sentence of art. 36(1)(c) only applies
within the consular district, was then Limbo part of the consular district of the consul in
Caramba?
Does the VCCR art. 36(1)(c) apply without the time limit in art. 36(1)(b)?
If the time limit in art. 36(1)(b) should be applied, was then the meeting denied “without
delay”?
7. The seizure of the box was unlawful and Margarida should return it to Warangia
Did the seizure of the box amount to exercise of enforcement jurisdiction extraterritorially?
Did the seizure of the box violate the non-intervention principle or sovereignty of
Warangia?
Can Margarida justify the seizure of the box by any positive rule of international law?
Is the seizure of the box attributable to Margarida?
Is Warangia entitled to restitution?
xxv
(f) SUMMARY OF ARGUMENTS
The Kingdom of Warangia submits that:
(1) Warangia did not breach SC Res. 2008 because the resolution has only recommendatory
character and it does not create an embargo against Banana, because the resolution does not
demand a complete prohibition on arms trade with Banana, and since there are not sufficient
proof that any forbidden products were on the Argonaut.
(2) As Jason was acting in his private capacity, a possible violation of SC Res. 2008 that he
might be guilty of is not attributable to Warangia.
(3) The attack on the Argonaut constituted an armed attack contrary to the article 2(4) of the
UN Charter since the attack was ordered by the military, had no basis in the national laws of
Margarida, since the force used was so overwhelming, and there was no international law rule
that Margarida could rightfully enforce with the use of force at the time of the attack.
(4) Even if the attack did not constitute an armed attack, but rather enforcement measures, the
amount of force used was contrary to international law since it was not necessary, reasonable,
or unavoidable.
(5) The seizure of the Argonaut was unlawful since neither the right to seizure in UNCLOS or
either SC Res. 2224 or SC Res. 2008 permitted seizure on the territorial waters of other states,
even when the other state is not recognized by the seizing state.
(5) Article 98(1) of UNCLOS does not permit Margarida to take control over the ship, and the
seizure of the Argonaut was made in a way that deprived Warangia of control where it alone
had the right to decide. Therefore, the seizure violated the principle of non-intervention.
(6) The sinking of the Argonaut was unlawful since it was a deliberate and unnecessary act
without any justification.
(7) Necessity cannot be used as a circumstance precluding wrongfulness since there existed
no grave and imminent peril, the sinking was not the only means to guard against possible
xxvi
danger, the act seriously impaired an essential interest, and Margarida contributed to the
situation of necessity.
(8) Margarida must pay full compensation for their unlawful acts according to art. 36 of the
ASR even if there existed circumstances precluding wrongfulness for their acts.
(9) The arrest of Jason was unlawful since he enjoyed diplomatic immunity from third states
in accordance with arts. 40(1) or 40(2) of the VCDR and he enjoys diplomatic immunity on
Limbo as his presence there is due to force majeure.
(10) The arrest of Jason was unlawful since Margarida violated the sovereignty of Warangia
by exercising enforcement jurisdiction on the Argonaut which was of Warangian nationality.
(11) Margarida must return Jason to Warangia. Otherwise, the consequences of the breach of
the international law by Margarida will not be properly remedied.
(12) Margarida has breached and continues to breach the ICCPR because the arrest and the
detention of Jason violated and still violates art. 9 of ICCPR. Margarida did not satisfy the
requirements, set out in art. 4, allowing for derogation from the ICCPR, as it did not announce
a state of emergency. Consequently, the arrest and detention of Jason are contrary to
international law and should be remedied.
(13) Margarida cannot justify the detention and the arrest of Jason by the male captus bene
detentus principle because this principle neither has attained status of customary international
law nor is applicable in the present scenario.
(14) The requested meeting with Jason should not have been denied as the VCCR does apply
on Limbo and the right to visit a detained national in article 36(1)(c) only applies to the
consul in the consular district.
(15) The time limit in article 36(1)(b) of the VCCR does not apply to meetings in accordance
with the first sentence of article 36(1)(c), and even if the Court would find that it does, that
time has lapsed.
xxvii
(16) The seizure of the box constituted an exercise of extraterritorial enforcement jurisdiction.
Consequently, Margarida breached both the sovereignty of Warangia and the non-intervention
principle.
(17) There is no rule of international law that can justify the seizure of the box from the
Argonaut by Margarida and therefore Margarida is responsible for an internationally wrongful
act and is under an obligation to return the box to Warangia.
xxviii
(g) JURISDICTION OF THE COURT
Warangia and Margarida are both members of the United Nations and parties to the ICJ
Statute. Both of them have accepted the compulsory jurisdiction of the ICJ under art. 36(2) of
the ICJ Statute, with no relevant reservations.
1
(h) ARGUMENT
1. WARANGIA DID NOT VIOLATE THE SC RESOLUTION 2008.
1.1 Warangia did not breach the UN SC Resolution 2008
The point of departure for interpretation of SC resolutions is arts. 31 and 32 of VCLT, but
they should be interpreted narrowly and without inferring binding effect easily.1 SC Res. 2008
merely calls upon states to exercise vigilance and restraint and does not demand a complete
stop of weapon transactions.2 Rather a certain level of inspection seems to be demanded by
the SC. The term “calls upon”, used in the resolution, does not imply compulsion but rather
recommendation.3 It can be compared with compelling verbs such as “decides” or “authorise”
that the SC uses to request particular actions.4
Even if the Court would find that the resolution demands a complete stop of transferrals to
Banana, there is no information available that proves that such items would have been on
board the Argonaut. As missile systems, as defined in the UN Register for Conventional
Arms, must be designed or modified for launching a payload,5 the transfer of pharmaceutical
products could not have breached the resolution, even if they were of dual use character. The
other objects enumerated in SC Res. 2008 are all too big to be put in a box and brought on
board a helicopter. The burden of proof for claiming that Warangia has violated the resolution
must be on Margarida.6 Reports in international media do not generally have a high evidential
1
The Namibia case, p. 53; Simma (2002), p. 713; Wood (1998), p. 95.
2
This is especially clear since SR Res. 2008 does not demand reporting, as the partially
identical SC Res. 1747 (2007) does. The setting up of a special committee that monitor
compliance is a customary step in SC practice according to Calamita (2009), p. 1405.
3
Szasz (2002), p. 902; Lee (2007), p. 17. See as well Simma (2002), p. 457.
4
Lee (2007), p. 17. Examples include SC Res. 748 (1992), SC Res. 918 (1994), SC Res. 1333
(2000), and SC Res. 1718 (2006).
5
6
General and Complete Disarmament Resolution, Art. 2(VII) in the Annex.
The Frontier Dispute case, p. 587 et seq.; the Nicaragua (admissibility) case, p. 437;
2
value.7 If Margarida argues that the seized box contained illicit equipment, the box has to be
presented,8 and national law cannot be used to excuse a failure to do so9.
Even if there were objects on the ship which’s transferral to Banana would constitute a
violation SC Res. 2008, that cannot be attributed to Warangia, as Jason, who was arrested in
the uniform of the Golden Fleece, was acting in his private capacity and not ultra vires. 10
2. THE ATTACK ON THE ARGONAUT WAS UNLAWFUL
2.1 The Argonaut was not a pirate ship at the time of the attack
Margarida might argue that the Argonaut, at the time of the attack, was a pirate ship according
to arts. 101 and 103 of UNCLOS. Even though the burden of proof of such an assertion is on
Margarida, a few points will nevertheless be made.
According to art. 103 a ship is a pirate ship if it is intended by the persons in dominant
control of it for the purpose of committing one of the acts mentioned in art. 101. Piracy must
be committed “for private ends”, which is widely interpreted as to exclude acts committed for
political purposes.11 The attack on the nearby ship was committed by a speedboat, which does
not fall under the definition in art. 101, as it did not include two ships.12
Amerasinghe (2005), p. 62 and 71 et seq.
7
The Nicaragua (merits) case, p. 40 et seq., paras. 63 and 65.
8
As that evidence is then obtained in violation of international law (see below), its evidential
value can be questioned, see Amerasinghe (2005), p. 177 et seq.
9
The Cameroon/Nigeria case, pp. 430-431, para. 266; art. 27 of VCLT; art. 32 of the ASR;
Shaw (2008), p. 134.
10
Cf. Art. 5 of the ASR; and the Caire case, p. 531. See Clarification No. 64.
11
Commentary III to UNCLOS (1995), p. 200; Shaw (2008), p. 615; Luis Jesus (2003), p.
378; Shearer (2008), para. 16. The fact that the pirates did not return to Tortuga, unlike in
earlier incidents, suggests that their purposes might have been different from their usual.
12
Treves (2009), p. 402; Luis Jesus (2003), p. 377; Churchill and Lowe (1999), p. 210;
Shearer (2008), para. 15.
3
Even if the Court would find that the Argonaut was a pirate ship at the time of the attack, it
still keeps its Warangian nationality according to art. 104 of UNCLOS. The physical flag in
itself is only a symbol of the nationality.13 Loss of nationality only occurs when national law
regards piracy as a ground for loss of nationality, which Warangian law does not seem to do.14
2.2 Even if the Argonaut was a pirate ship, the attack constituted an unlawful armed attack
Violence against a ship can either simply be a method for a state to enforce a rule, or
constitute an armed attack against the flag state.15 States often consider an attack upon a ship
flying its flag to be an attack upon the state. 16 An armed attack, not authorized or in selfdefence, violates art. 2(4) of the UN Charter.17 The shots fired at the Argonaut constituted
such an attack since it was performed by a warship,18 and since they did not seem to have a
basis in national Margaridan law, but was rather instructed by the Navy Command.19
Even if the attack would have had a basis in national law, it is difficult to see how the
alleged enforcement by Margarida could be in conformity with international law as arts. 105
and 110 of UNCLOS only apply on the high seas. Since the attack took place so close to the
territorial waters, the Argonaut could not have stopped before those waters, as a ship stops
very slowly. Under such circumstances the attack could never have served to enforce any rule.
13
Churchill and Lowe (1999), p. 257; König (2009), para. 1.
14
Clarification No. 1; YBILC (1956), p. 283; Churchill and Lowe (1999), p. 210.
15
The Guyana v. Suriname case, p. 231, para. 445, where the Court differentiated situations
of law enforcement, where use of force could be lawful, from situations “more akin to a threat
of military action”, where no use of force was allowed.
16
The Oil Platforms case p. 186 et seq., paras 50-61; Kwast (2008), p. 58 who cites Allen,
Maritime Counterproliferation Operations and the Rule of Law, p. 137.
17
The Nicaragua case, p. 101, para. 191; Kwast (2008), p. 61.
18
Kwast (2008), p. 74; and p. 73, citing Allen, Maritime Counterproliferation Operations and
the Rule of Law, p. 81, footnote 32.
19
Kwast (2008), p. 74; and p. 81, citing documents submitted to the Court in the Guyana v.
Suriname case.
4
2.3 Even if the Argonaut was a pirate ship and the attack constituted lawful enforcement
measures, the use of force was not in conformity with international law
In the Saiga case the ITLOS confirmed that the use of force might be allowed to enforce rules
at sea, but demands “that the use of force must be avoided as far as possible and, where force
is unavoidable, it must not go beyond what is reasonable and necessary in the
circumstances”.20 The same rules are applicable to action against pirates.21 The normal
practice is that a ship first uses internationally recognized auditory or light signals to stop the
other ship, and if the signals do not have effect, use other “appropriate actions”, such as firing
a shot across the bow of the boat.22 This seems to have been done by Margarida. However,
such “appropriate actions” must be followed by “appropriate warnings”, when the attack is
launched, and “all efforts should be made to ensure that life is not endangered”,23 which was
not done. In the present case, those omissions were even more severe since the Argonaut had
a crew taken hostages on board.
The lack of protective measures resembles the situation in the Saiga case, since Margarida
“use[d] force to stop the engine” even as they later “boarded the ship without resistance”,
which implies that they seem to have given “little or no importance to the safety of the ship
and the persons on board”, and furthermore creating unmotivated damage to vital equipment
in the radio room.24 The latter circumstance lead to a dangerous inability to send out mayday
20
The Saiga case, p. 1355, para. 155.
21
Treves (2009), p. 413; this furthermore follows from that the rules on seizure of pirates in
UNCLOS are formulated in the same way as other rules accepting enforcement measures.
22
The Saiga case, p. 1355, para. 156; the Red Crusader case, p. 499, where an attack without
warning of solid gun-shot was illegal, even though warning shots were fired before.
23
The Saiga case, p. 1355, para. 156, referring to the Red Crusader case, the I'm Alone case,
and the UN Fish Stocks Agreement, art. 22(1)(f).
24
The Saiga case, p. 1356, para. 158.
5
calls.25 There are strong reasons to believe that the boarding could have been performed
earlier, on the high seas, without firing at the ship.26 Consequently, the use of force was
neither necessary, nor reasonable, nor unavoidable.
The most probable reason for using as much force as Margarida did is that the Argonaut
was going to pass the border to Banana’s territorial waters. Accepting an increased amount of
violence to enforce rules close to the sea boundary line would be contrary to the principles of
peaceful uses of the seas, forming the basis for UNCLOS.27 Furthermore, acceptance of such
violence would constitute a substantial risk of creating international conflicts.
2.4 Neither of the two SC resolutions enhance the right to use force
Resolutions that authorize the use of force habitually use the expression “all necessary
means”,28 and implied authorization is impermissible29. Even when force is permitted in order
to enforce economic sanctions, the formulations explicitly give a right to use force.30 For
example, when the SC had imposed economic sanctions against Rhodesia in 1965, the UK did
not use force in order to enforce the sanctions until the SC in 1966 explicitly permitted this
against a specific ship.31 The UK, the US, the Netherlands and France took the position that
25
In the Red Crusader case, p. 499, creating danger for the crew of a ship “without proved
necessity” was deemed unlawful.
26
See the Saiga case, p. 1355, para. 157, where the Tribunal held that the ship easily could
have been boarded.
27
Art. 88 of UNCLOS which confers a binding obligation according to Commentary III to
UNCLOS (1995), p. xliii; Art 301 of UNCLOS, that resembles art. 2(4) of the UN Charter,
but is more extensive; see the Commentary V to UNCLOS (1989), p. 154, para. 301.4.
28
Fink and Galvin (2009), p. 388; Dixon (2007), p. 331.
29
Simma (2002), p. 753; Gray (2008), p. 281.
30
In SC Res. 665 (1990), the SC authorized “such measures […] as may be necessary”.
31
SC Res. 217 (1965) which was followed by SC Res. 221 (1966); Harris (2004), p. 989.
6
the UK could not use force against the ship without this second resolution.32 A similar
procedure was adopted for the enforcement of the embargo against Iraq 1990.33 Consequently,
SC Res. 2008 cannot give any rights to states to enforce it by force.
Even if the Court would find implied authorization possible, Warangia would like to stress
that this has been deemed possible only in cases when the SC previously have warned a state,
or has taken vigorous actions that has been disregarded,34 such as against Iraq in the prelude
to the war in Iraq in 2003.35 In the present case no earlier warnings or resolutions are known.
3. THE SEIZURE OF THE ARGONAUT WAS UNLAWFUL
3.1 Margarida had no right under UNCLOS to seize the Argonaut
To exercise jurisdiction over a foreign ship is in principle unlawful, unless there is a
permissive rule or a waiver to the contrary.36 No such rule exists in the present case.
Art. 105 of UNCLOS permits seizure of pirate ships on the high seas or in any place
outside the jurisdiction of any state. States have been very reluctant to transfer their rights on
territorial waters to other states.37 The present seizure took place on territorial waters, which is
an extension of its sovereignty according to art. 2 of UNCLOS. The circumstance that
Margarida does not recognise the government of Banana does not change this, since the
32
Soons (2001), p. 310, who cites Gowlland-Debbas, Collective Responses to Illegal Acts in
International Law. United Nations Action in the Question of South Rhodesia, pp. 402-406.
33
Where SC Res. 661 (1990) was followed up by SC Res. 665 (1990); Soons (2001), p. 313
et seq.
34
See e.g. Simma (2002), p. 755.
35
Such as SC Res. 1441 (2002): “[r]ecognizing the threat Iraq’s non-compliance […] poses
to international peace and security”.
36
37
Kwast (2008), p. 54; the Lotus case, pp. 18 and 25.
See e.g. the rejection of the US proposal to internationalize the Malacca-Singapore straits
that are heavily infested by pirates, reported in Freestone et al. (2006), p. 24.
7
existence of states should be determined objectively,38 as the constitutive theory prevails over
the declaratory. 39 States do often address claims against states they do not recognise.40
Furthermore, Banana is a party to UNCLOS and explicitly mentioned in SC Res. 2008.
Art. 105 does not permit seizure of pirate ships on the territorial waters even if a piratical
act would have taken place on the high seas.41 A proposal that permitted such seizures was
put forth in the Harvard Draft Convention on Piracy, 42 but the present wording is based on the
view of the ILC, that the right to seizure of pirate ships “cannot be exercised at a place under
the jurisdiction of another State”.43 This does not mean that the rights of a third state (Banana)
have to be finally determined,44 but only that the right of Margarida is dependent on that no
other state may exercise jurisdiction. As the wording of art. 105 is unambiguous, a textual
interpretation should be applied,45 which makes the seizure unlawful.
3.2 Neither SC Res. 2224 or SC Res. 2008 authorize seizure of the Argonaut
SC Res. 2224 establishes that acts should be performed “consistent with international law”,
meaning that the it does not yield any additional authorisation46. Furthermore, only Tortuga
38
Art. 1 of the Montevideo convention is commonly accepted as reflecting customary
international law e.g. according to Harris (2004), p. 99; and Shaw (2008) p. 198. See also the
Tinoco arbitration, p. 381; and the Deutsche Continental Gas-Gesellschaft arbitration, p. 13.
39
Cassese (2005), p. 74; Dixon (2007), p. 130; Harris (2004), p. 145; Shaw (2008), p. 471.
40
See examples given in Harris (2008), pp. 144 et seq.
41
Commentary III to UNCLOS (1995), p. 215.
42
Art. 7 of the Harvard Draft Convention on Piracy, at p. 744.
43
YBILC (1956), p. 283; Jennings and Watts (1992), p. 753; Luis Jesus (2003), p. 379.
44
As the question does not “form the very subject-matter of the decision” according to the
Monetary Gold case, p. 32.
45
46
VCLT 31(1); the Competence case, p. 8; the Interpretation of Peace Treaties case p. 227.
See e.g. SC Res. 1540 (2004) with similar language that is not considered to constitute an
authorization to exceed existing rules according to Byers (2007), para. 15.
8
has given its consent to the resolution, and it only applies “off the coast of Tortuga”.47 Similar
resolutions explicitly give a right to enter territorial waters,48 but this one does not.
SC Res. 2008 merely calls upon states to exercise vigilance and restraint in areas where
they already have the right to exercise jurisdiction,49 i.e. not within the territorial water of
other states. The vague language of the present resolution could be contrasted with such
explicit wording as “halt inward and outward maritime shipping in order to inspect and verify
cargo” 50, or similar language,51 deployed in resolutions that authorise interdictions.
3.3 Distress cannot be used as a justification for a de facto seizure
It might be argued that the seizure of the Argonaut was due to the duty under art. 98(1) of
UNCLOS to render assistance to ships in distress. Such an argument should be rejected.
Firstly, distress is generally meant to denote a situation with a high level of danger.52 Even
if it is hard to ascertain the level of danger in the present case, it seems clear that there were
less intrusive ways to provide help, without seizing the ship, such as putting out the fire.
Secondly, a mission on territorial waters must be innocent according to art. 18 of
UNCLOS. Innocent passage cannot be conducted with aircraft53 or if it includes “exercise
[…] with weapons of any kind”, according to art. 19(2)(b). This mission was not innocent as
the marines arrived in helicopters, were probably armed, and used explosives to sink the ship.
47
Tortuga, but not Banana, has characteristics of a “failed state”. This is resembles the
situation with the resolutions on Somalia. See e.g. Fink and Galvin (2009), pp. 372-373.
48
As SC Res. 1816 (2008); prolonged by SC Res. 1838 (2008).
49
All the expressions in the resolution concern areas where states may exercise jurisdiction,
such as “from their territories”, “by their nationals” and “using their flag vessels”.
50
SC Res. 875 (1993); SC Res. 917 (1994).
51
SC Res. 787 (1992); SC Res. 820 (1993).
52
As in art. 24 of the ASR, which however is in the context of state responsibility.
53
Except overflight according to art. 38. See Francioni (1986), p. 363; Churchill and Lowe
(1999), pp. 75-76; Commentary II to UNCLOS (1993), p. 156 et seq.
9
Thirdly, the use of distress to seize the ship would constitute an abuse of rights as the
provision would then be used for a different purpose than the intended and in a way so as to
impede the enjoyment of a right for another state,54 as the provision is not made to allow
access to foreign ships and the right to exclusive flag state jurisdiction would be impeded.
Fourthly, the principle ex injuria jus non oritur, that establishes that facts flowing from
wrongful conduct cannot create legal rights for the wrongdoer,55 and the principle of good
faith56 precludes interpretation of the distress provision as to give a right for Warangia to
seize the Argonaut since the prior attack upon it was unlawful.
3.4 The seizure of the Argonaut violated the principle of non-intervention
The principle of non-intervention can be inferred from the UN Charter,57 is spelled out in
numerous GA resolutions,58 and is one of the principles of international law embodied in the
UN Charter. 59 Although the principle has been partially challenged, concerning intervention
to stop human rights violations, the principle at large is not diminished.60
A state may not intervene in the internal or external affairs of another state in a way that is
forcible or dictatorial, or otherwise coercive so as to deprive the state of the control over a
matter or any opportunity to exercise its sovereignty.61 The exercise of enforcement
54
Art. 300 of UNCLOS; Commentary V to UNCLOS (1989), p. 152; Brownlie (2008), pp.
444-445.
55
The Brcko arbitration, p. 422, para. 77; the Gabčíkovo-Nagyamos case, p. 74, para. 77; the
Namibia case, p. 46, para. 77; Jennings and Watts (1992), p. 183; Shaw (2008), p. 104 et seq.
56
VCLT art. 26; the Nuclear Test case, p. 473, para. 49; the Friendly Relations Declaration.
57
The UN Charter: arts. 2(1), 2(4), and 2(7); Jamnejad and Wood (2009), p. 359 et seq.
58
The Friendly Relations Declaration; the Declaration on the Inadmissibility of Intervention.
59
This is stated in the preambles to VCLT and VCLTSIO.
60
Cassese (2005), p. 54; Kunig (2008), paras. 48 et seq.
61
The Nicaragua (merits) case p. 108, para. 205; Jennings and Watts (1992), p. 428.
10
jurisdiction in the territory of another state, in the absence of its consent or a positive
international obligation, breaches the non-intervention principle.62 As the Argonaut has kept
its Warangian nationality, Warangia enjoyed exclusive jurisdiction over the ship on the
territorial sea. If the ship had committed any unlawful acts, it was the responsibility of the
coastal state to seize it.63 The act of taking control over the ship through the marines was
forcible and dictatorial, depriving Warangia of control where it alone had the right to decide.
4. THE SINKING OF THE ARGONAUT WAS UNLAWFUL
4.1 The sinking constituted a breach of international law
When France sank a ship of a third state at its moorings in New Zealand using explosive
devices, the Secretary General of the UN concluded in his arbitral award that the attack
against the ship “indisputably was a serious violation […] of New Zealand sovereignty and of
the Charter of the United Nations”; that the violations neither were “accidental nor technical”;
and that the attack was a “criminal act of violence against property in New Zealand”.64
According to the I’m Alone arbitration, a sinking could however in theory be lawful if it
occurred “incidentally, as a result of the exercise of reasonable and necessary force” when the
state had a right to enforce a rule.65 In the present scenario, there was no rule to rightfully
enforce on territorial waters of Banana and the sinking was clearly not incidental.
62
The Lotus case, p. 18; the Joint Separate Opinion of Judges Higgins, Kooijmans, and
Buergenthal in the Arrest Warrant case, p. 86 et seq.; Jamnejad and Wood (2009), p. 372.
63
Art. 25(1) of UNCLOS; Francioni (1986), p. 365; Luis Jesus (2003), p. 379; Brownlie
(2008), p. 186.
64
The Rainbow Warrior I case, pp. 201-202.
65
The I’m Alone case, p. 1615.
11
4.2 As necessity is not applicable, Margarida has to pay compensation to Warangia
Even assuming that the Argonaut could constitute a risk if left at sea, sinking it cannot be
justified by necessity according to art. 25 of the ASR66. A state of necessity is only applicable
in “exceptional circumstances” and subject to strict limitations in order to avoid abuse.67
Admittedly, the bombing of a ship leaking oil in the Torrey Canyon incident has been
considered lawful, but this case is distinguished since the flag state did not protest and all
other means had failed.68 In the present scenario there was no such danger present, Warangia
is protesting against the sinking, and the action is hardly the “only means”69 to safeguard
against dangers. It would e.g. have been less intrusive to help the crew bring the ship to land.
According to art. 25(1)(b) the act may “not seriously impair an essential interest of the
state towards which the obligation exists”. In this situation the fundamental principles of
exclusive flag-state jurisdiction and freedom of navigation were violated. Furthermore,
according to art. 25(2)(b) a state may not invoke necessity if “the State has contributed to the
situation of necessity” in a way that is not “merely incidental or peripheral”.70 In the present
situation Warangia has not only contributed to the possible peril on board the ship, but in fact
helped “to bring it about”,71 and is therefore precluded from invoking necessity.
66
Art. 25 of the ASR reflects customary international law according to the GabčíkovoNagymaros case, p. 40, para. 51; and the Construction of a Wall case, p. 94, para. 140.
67
The Gabčíkovo-Nagymaros case, p. 46, para. 58 affirmed in the Construction of a Wall
case, p. 95, para 140; see also Crawford (2002), p. 178.
68
The incident is reported e.g. in Crawford (2002), p. 181.
69
Art. 25(1)(a) of ASR; the Saiga case, p. 1352, para. 135; the Gabčíkovo-Nagymaros case, p.
40 et seq., paras. 51 et seq.; the Construction of a Wall case, p. 194 et seq., para 140; the
Dissenting Opinion by Judge Anzilotti in the Oscar Chinn case, p. 114, para. 7.
70
Crawford (2002), p. 185.
71
The Gabčíkovo-Nagymaros case, p. 46, para. 57.
12
Warangia can assert standing on behalf of the Golden Fleece, as it is a Warangian
shipping company,72 and since the Argonaut still retains its nationality. The result of the
unlawful act is that Warangia is entitled to full reparation according to the ASR art. 34.73
5. THE ARREST AND DETENTION OF JASON VIOLATED INTERNATIONAL LAW
5.1 Jason cannot be arrested since he enjoys immunity from Margaridan jurisdiction
The kind of work a person performs shall determine the category in art. 1 of VCDR he
belongs to.74 The sending state may freely appoint to which of the different categories a
person belongs.75 As Jason had just entered the territory of Banana his immunity had just
begun according to art. 39(1) of VCDR. However, he was forcefully taken from Banana
before the executive power was informed of his presence. Even though many states let the
executive determine the status of a diplomatic agent,76 the only way to dispose of a diplomat
in an internationally valid way is to declare him persona non grata.77 Accordingly, Jason
enjoyed diplomatic immunity from the time he entered the territorial waters of Banana.
A person belongs to the category of diplomatic agent if he is intended to exercise
diplomatic functions in accordance with art. 3.78 It is unlikely that Jason, holding several other
important offices would be performing low-level work in the embassy. Naval attachés enjoy
72
The Barcelona Traction case p. 42, para. 70; the Diallo case, p. 23 para. 61; art. 9 of the
Draft Articles on Diplomatic Protection.
73
Even if the court should find that the circumstances in the case preclude the wrongfulness
of the acts of Margarida, Margarida is not necessarily relieved from their obligation to pay
compensation for its breach of an international obligation, according to the ASR art. 27(b).
74
Roberts (2009), p. 159.
75
Art. 7 of the VCDR; van Alebeek (2008), p. 165; Brown (1988), p. 55.
76
Jennings and Watts (1992), p. 1105; Brown (1988), p. 55.
77
Art. 9 of the VCDR; van Alebeek (2008), p. 165.
78
Brown (1988), p. 55 and p. 58.
13
status as diplomatic agents.79 Moreover, an assistant to a naval attaché was in a case granted
the same immunity as the ambassador as long as he was working for the embassy, regardless
if the navy paid him.80 The case is older than the convention but still highlights the
importance of the assistant to a naval attaché. Consequently, Jason is a diplomatic agent.
If Jason is not a diplomatic agent, he must be a member of the technical and administrative
staff.81 He is then granted the same immunities as a diplomatic agent in Banana, except
immunities from civil and administrative jurisdiction for acts outside the official duties.82
The diplomatic immunity régime does not apply erga omnes, but third states have duties
under art. 40 of the VCDR.83 Art. 40(1) demands a third state to grant all immunities that are
necessary to ensure transit for a diplomat proceeding to taking up his post who is passing
through, or is in, the territory of a third state. In the present case, Jason is on Bananan
territory, on his way to take up his post. Despite the fact that the text of the article is the
primary source for interpretation,84 the context and original intention can override it, if the
result otherwise seems unreasonable.85 Jason should therefore be granted immunity from in
Banana, since his protection there hardly can be lower than on Margaridan soil.86
If the Court would not agree with the interpretation above, Warangia argues that Jason is
79
Fry et al. (2002), p. 543; Roberts (2009), p. 159, footnote 5.
80
Appuhamy v. Gregory, p. 379 et seq.
81
Art. 1(f) of VCDR; Roberts (2009), p. 158 et seq.; van Alebeek (2009), para. 44, citing
Salomon Manuel de Droit Diplomatique, pp. 389-390 and 392.
82
Art. 37(3) of the VCDR; Jennings and Watts (1992), p. 1108.
83
van Alebeek (2008), p. 164.
84
The Libya/Chad case, pp. 41-42, para. 41.
85
The Aegean Sea case, p. 23; the Anglo-Iranian Oil case, p. 104; Shaw (2008), p. 935.
86
Especially as the Arrest Warrant case took a more a rigorous stance on immunity in third
states which applies as well to diplomats according to van Alebeek (2008), p. 195 et seq.
14
entitled to diplomatic immunity since his presence on Limbo is due to force majeure. Even if
force majeure generally applies in cases of natural disasters,87 there is nothing that precludes
cases where the presence is due to acts by another state. The ICJ has held that force majeure
is invoked to “justify involuntary or at least unintentional conduct” and refers “to an
irresistible force or an unforeseen external event against which it has no remedy”.88 In the
present scenario Jason’s presence under the jurisdiction of Margarida is due to force, which
they were not voluntarily subject to, that neither Jason or Warangia could have foreseen or did
have the powers to withstand. Furthermore, there are strong reasons to interpret this immunity
extensive in order for states not to forcefully transfer diplomatic staff to their jurisdiction.
5.2 Margarida breached international law by arresting Jason on board the Argonaut
Applying the definition of an arrest coined by the UN CHR89, Warangia claims that the arrest
took place on board the Argonaut, i.e. outside the jurisdiction of Margarida. A state violates
international law by exercising enforcement jurisdiction in the territory of another state
without the consent of the latter. 90 Normally, a state need not, and indeed should not, defend
its rights in another state’s territory91, but should only request the latter to provide the
necessary protection.92 In this case, Warangia has neither given its ad hoc consent nor signed
a treaty providing for consent to intervene. The present situation is comparable to the case of
Eichmann, whose abduction, conducted by Israeli agents in Argentina, provoked fierce
87
As in cases of forced landings. See Denza (2008), p. 456; van Alebeek (2008), p. 164.
88
The Rainbow Warrior II case, p. 252 et seq., para. 77 (emphasis original).
89
CHR, Study of the Right of Everyone to Be Free, p. 5.
90
The Lotus case, pp. 18-9; The Nicaragua (merits) case, p. 111, para. 212; Third
Restatement (1987), §432, p. 329; Oppenheim (1955), p. 295; Malanczuk (1997), p. 110;
O’Higgins (1960), p. 295; Costi (2002), p. 59.
91
The Island of Palmas case, p. 839; the Separate Opinion in the Lotus case by Judge Moore,
p. 88.
92
Cheng (2006), p. 84.
15
dispute on the international arena. 93 Even the SC expressed its dissatisfaction with the refusal
of Israel to return Eichmann to Argentina, highlighting that such activities “may if repeated
endanger international peace and security”.94
5.3 The return of Jason to Warangia constitutes an appropriate remedy
Warangia, as a state whose sovereignty was damaged by the arrest, is entitled to protest
against the acts of officials of Margarida, receive reparation,95 and demand Jason’s return to
Warangia96. The duty to return an abducted person is strengthened by the principle of
restitutio in integrum.97 Moreover, the SC highlighted the need to adequately remedy the
injured state with regard to the abduction of Eichmann by Israeli agents.98 The
appropriateness of returning abducted people is also reflected in case law and state practice.
For example, in the Switzerland-Germany case, the German government returned the
abducted émigré upon the request of Swiss authorities, even before such a remedy was
judicially ordered.99 Similarly, in another incident the US returned individuals abducted from
a British vessel pursuant to a British official request.100 In the re Jolis case, a French court,
influenced by the Belgian official protest, recognised that “[t]he arrest, effected by French
93
Scholem (2006), p. 860; Jaspers (2006), pp. 853-854.
94
SC Res. 138 (1960), para. 1.
95
Third Restatement (1987), § 432, p. 329.
96
Harvard Draft on Jurisdiction (1935), pp. 623-4; Restatement (1987), p. 329; Preuss (1935),
p. 505; Highet (1992), p. 815; O’Higgins (1960), p. 293; Morgenstein (1952), p. 265; Mann
(1989), p. 411.
97
Gluck (1994), pp. 626-9 argues that restitutio in integrum is the CIL remedy in the context
of state-sponsored international abduction. The primacy of restitution is supported by the
Temple case, p. 37; the Diplomatic and Consular Staff case, p. 54; the Texaco case, pp. 501502.
98
SC Res. 138 (1960), para. 2.
99
Preuss (1936), pp. 123-4.
100
Foreign Relations of the United States (1863), p. 524.
16
officers on foreign territory, could have no legal effect whatsoever, and was completely null
and void”101. In the Deserters of Casablanca, deserters from the French Foreign Legion were
abducted in spite of protection received from the German consul. The PCA criticised the
French military authorities for this and ordered the return of the abductees to Germany.102
5.4 Margarida breached and continues to act in violation of ICCPR
Arbitrariness, as defined in art. 9 of ICCPR, has a wider meaning than “against the law” and
includes such elements as inappropriateness, injustice, and the lack of predictability,
necessity, or due process.103 The fact that the arrest of Jason was not accompanied by an arrest
warrant is indicating its arbitrary nature.104
Detention could be considered arbitrary if it is not necessary in light of all circumstances
of the case and proportionate to the ends sought.105 Warangia observes that detention is an
inappropriate and arbitrary response to the vague suspicions that Margarida has against Jason.
The “unlawful enemy combatant” allegation, a concept which is highly controversial106,
cannot be applied against Jason because Warangia is not in a state of armed conflict with
Margarida as well as Jason is not a civilian107. As far as the SC Res. 2008 and the
Nachos/Frijoles Act are concerned, it must be noted that Jason was not involved in direct
101
Gluck (1994), p. 642, citing 7 Ann. Dig. 191 (Trib. Correctionel d’Avesness, 1933).
102
The Deserters of Casablanca case, pp. 5-6.
103
Mukong v. Cameroon, para. 9.8; A v. Australia, para. 9.2; drafting history of the ICCPR as
discussed in Marxcoux (1982), pp. 357-365 and Nowak (2005), pp. 224-8.
104
Mbenge v. Zaire, para. 21; Philbert v. Zaire, para. 8; Conteris v. Uruguay, para. 10. The
arrest is unnecessary and unreasonable because charges against Jason are yet to be
determined, despite the prolonged time that passed since his capture.
105
A. v. Australia, para. 9.2.
106
Moeckli (2005), pp. 77-80; Paust (2007), pp. 53-64; Duffy (2005), pp. 397-8; Vierucci
(2003), pp. 295-6.
107
Maxwell and Watts (2007), pp. 20-24.
17
commerce with the Banana but only fulfilling his employment contract. In the light of
extensive state practice against similar legislation, like the D’Amato Act and the Helms
Burton Act,108 it is not probable that Margarida even has prescriptive jurisdiction to govern
the conduct of aliens outside its borders. Furthermore, Warangia repeats that SC Res. 2008
cannot be seen as an embargo. The fact that there is no consistent authority as to whether a
breach of this resolution is punishable under the criminal law of Margarida,109 makes the
charge arbitrary because of its unpredictability. The fact that Jason was found on the
Argonaut’s bridge together with the pirates is not sufficient evidence to prove that he had
himself piratical intent. Rather, it is a sign that the pirates used him to navigate the ship.
Margarida may argue that only 7 days passed between the abduction of Jason and the filing
of the application by Warangia. However, even an initially lawful detention can become
arbitrary after a certain period of time if proper justification is not put forward110 and a mere 8
hours detention can violate art. 9(1) of ICCPR.111 Any detainee must be “promptly” brought
“before a judge or other judicial officer for the prosecution of alleged offenses”.112 The word
“promptly” means within a few days.113 The HRC opinion on the meaning of “promptly” in
art. 9(3) can be illustrated by the following examples: seventy-three hours of detention
without being brought before a judge was not a violation114, unexplained three days detention
108
Lowe (1997), pp. 383-8; Hernández-Truyol (2009), pp. 72-4.
109
Clarification No. 72.
110
Bakhtiyari v. Australia, para. 9.2; Nowak (2005), p. 226, para. 33.
111
Spakmo v. Norway, para. 6.3.
112
Art. 9(3) of the ICCPR.
113
HRC, ICCPR General Comment No. 8, para. 2.
114
Van der Houwen v. The Netherlands, para. 4.3.
18
before having a trial was a violation115, and similarly being detained incommunicado for four
days constituted a breach of promptness116. Consequently, the HRC jurisprudence indicates
that the limit of promptness is around three days117, but in a recent report, the HRC has taken
an even stricter approach, i.e. custody cannot last more than 48 hours118. The 11 September
was the seventh day of Jason’s detention. Accordingly, at the time of filing the application by
Warangia, Margarida had already breached art. 9(3). At the day this memorial is submitted,
Jason is still detained, which constitutes a continued breach of the ICCPR.
The legal position of Jason is analogous to the preventive detention of suspected terrorists
at Guantanamo Bay.119 According to the UN Working Group on Arbitrary Detention, the
preventive detention of suspected terrorists for a prolonged time without any criminal charge
and judicial review of their detention confers an arbitrary character upon such detention. 120
Art. 4 of the ICCPR allows derogation from the ICCPR only if a state faces a “public
emergency threatening the life of the nation” and officially proclaims this. No such
emergency existed and neither did Margarida officially proclaim a state of emergency.
Consequently, Margarida cannot derogate from the ICCPR.
5.5 The exercise of jurisdiction by Margarida over Jason subsequent to his unlawful arrest and
detention cannot be justified under the male captus bene detentus doctrine
5.5.1 The male captus bene detentus doctrine is not a rule of customary law
No international court has expressly endorsed the male captus bene detentus principle. The
115
Borisenko v. Hungary, para. 7.4.
116
Freemantle v. Jamaica, para. 7.4.
117
Joseph et al. (2004), pp. 324-325.
118
HRC, Concluding Observations on Gabon, para. 13.
119
Both the suspected terrorists and Jason are detained to determine the reasons for their
detention, denied communication with a counsel and judicial review of their detentions.
120
CHR Report: The Question of Torture and Detention, para. 61 et seq.
19
ICTY seems to disapprove to it, given its willingness to look into the nature of the Nikolić’s
capture.121 The same unwillingness towards granting customary law status to the principle can
be discerned from the Öcalan case where the ECtHR held that the male captus arrested in
breach of another state’s sovereignty is under the ECHR no longer bene detentus.122
Furthermore, the diverse state practice in this area does not satisfy the threshold for
uniform usage in order to constitute customary international law.123 While some national
courts support the principle124, the majority rejects it.125
5.5.2 Even if the male captus bene detentus doctrine was CIL, it still would not be applicable
Resort to the male captus principle is permitted only in the absence of any protest by the State
whose territorial integrity has been violated.126 The Eichmann case supports the importance of
the lack of protests. Only after Argentina withdrew their protests, the Security Council
considered the incident closed and the Israel court continued with the trial.127 In this case,
Warangia has not waived its claim that Margarida breached sovereignty of Warangia, but it
constitutes one of the very reasons for submitting the case for consideration to the Court.
121
The Nikolić case, paras. 99-115; Sloan (2003), pp. 546-552.
122
The Öcalan case, paras. 87-92.
123
The Asylum case, pp. 276-277.
124
The Attorney-General of the Government of Israel v. Eichmann, pp. 70-78; Frisbie v.
Collins, pp. 522-3; US v Alvarez-Machain, pp. 658-670.
125
R v. Horseferry Road Magistrates' Court, p. 67; State v. Ebrahim, p. 442; State v. Beahan,
p. 317; US v. Toscanino, pp. 271-281; US v. Verdugo-Urquidez pp. 1349-1351.
126
Third Restatement (1987), p. 431.
127
The Eichmann case, pp. 70-72.
20
6. THE DENIAL OF THE CONSULAR MEETING BY MARGARIDA WAS UNLAWFUL
6.1 The VCCR applies where Margarida has control regardless of whether it is its territory
The VCCR is intended to be applicable also outside the territory of the receiving state,
including on the territory of a third state.128 Rules that a state are bound to should generally be
in effect in areas where a state exercises control.129 More specifically, e.g. the ECtHR has
found ECHR applicable in areas that are not the territory of the state, yet still under its
control.130 Cases under ECHR can be equated with cases under VCCR, since both
conventions concern rights instituted to protect individuals.131 Moreover, the opposite
conclusion would incite countries to place detainees outside their territory to avoid the
obligations in VCCR, which would risk a considerable weakening of the convention.
According to the Avena case, a state may submit a claim in its own name both for direct
violations and those of its national, without exhausting the local remedies.132
6.2 The consul in Caramba had a right to the meeting
There is no reason to believe that Jason has opposed the meeting with the consul in
accordance with art. 36(1)(c). On the contrary, the peculiar circumstances of his arrest and his
situation of lawlessness in Limbo indicate that he is in need of assistance.
Since no judgement has been delivered, the right in the first sentence of art. 36(1)(c)
applies, which does not apply only to the consul in the consular district.133 This seems in line
128
The Draft Articles on Consular Relations, p. 95, para. 9.
129
See the Nicaragua (merits) case, p. 62 et seq.; and the Tadić case, p. 1541, para. 11 where
acts outside the state’s territory were found attributable to the state.
130
The Loizidou case, para. 52 (however, in a military situation); and the Issa case, para. 71.
131
Even more so as the consular right for the detained seems to have passed into a human
right according to the IACHR, Advisory Opinion on Consular Relations, paras. 122 and 124.
132
The Avena case, p. 36, para. 40.
133
As it does not follow from the text and since the whole art. 36(1) should be exercised
21
with the objective of the convention, since the detained is in greater need of assistance before
his judgement.134 If the Court anyhow find the first sentence of art. 36(1)(c) applicable only
within a consular district, Warangia argues that Limbo was included in the consular district,
as agreements on boundaries of consular districts can be concluded tacitly135 and Warangia
did not challenge the authority of the Consul when he made the request.
Art. 36(1)(c) does not specify a time limit for a meeting to take place136 and there is
nothing in the régime indicating that the right in (c) cannot be exercised before the time in (b)
has lapsed. As a state can be notified of its nationals’ presence in another country through
other means than notification,137 the time limit in art. 36(1)(b) does not have to expire before
the rights in art. 36(1)(a) and (c) can be exercised. Interpreting art. 36(1)(c) as a separate right,
independent of art. 36(1)(b), is in line with the fact that art. 36(1) sets up an “interrelated
régime designed to facilitate the implementation of the system of consular protection”138
6.3 Even if the time limit in art. 36(1)(b) applies, the visit has not been allowed in time
The ICJ has stated that “without delay [is] not necessarily meaning immediately” but the
receiving state has a “duty [to inform] as soon as it is realized that the person is a foreign
national, or once there are grounds to think that the person is probably a foreign national”.139
There must have been grounds to think that Jason was a foreign national as he was on a
“[w]ith a view to facilitating consular functions” according to its first sentence.
134
Roberts (2009), p. 283.
135
The Draft Articles on Consular Relations, p. 95 para. 2.
136
Roberts (2009), p. 282.
137
The Avena case, p. 53, para 104.
138
The LaGrand case, p. 492, para. 74.
139
The Avena case, p. 50, para. 88. Roberts (2009), p. 281 argues that the régime in art. 36(1)
is constructed to let the person detained take advantage of his rights before questioning, or at
least before charges are brought, and that this has lead other tribunals use a more rigorous
interpretation of the timing of notification than the ICJ.
22
foreign ship and holding a document certifying that he was diplomat from another state.
Notification after 40 hours is a violation of the obligation when the nationality is clear.140
In the present case, Jason was taken from the ship the 4 September, the authorities were
denied a meeting on the 8 September, had still not received the meeting on the 11 September
when the application was filed, and is still detained. Even if the court would find that
Warangia did not have reason to suspect Jason’s nationality, this time is longer than the time
specified in most bilateral treaties specifying the term “without delay”141.
7. THE BOX MUST BE RETURNED TO WARANGIA
7.1 By seizing the box, Margarida violated international law
Margarida infringed the sovereignty of Warangia by seizing the box because Warangia did
not provide consent for this action. Because Margarida retains the box as evidence in a
national investigation142, the seizure of the box can be perceived as an attempt to secure
evidence abroad, and an exercise of enforcement jurisdiction on another state’s territory is not
permitted in international law143. The ICJ in the Corfu Channel case explicitly rejected an
intervention into state sovereignty on grounds of securing evidence, and perceived “the
alleged right of intervention as a manifestation of a policy of force” which “cannot find place
in international law”.144 By analogy, the seizure of the box by Margaridan marines can be
perceived as a manifestation of a policy of force and is as such contrary to international law.
140
The Avena case, p. 50 et seq, para. 89.
141
See agreements in Roberts (2009), pp. 281-283. Such treaties could constitute subsequent
state practice according to the VCLT art. 31(3)(b).
142
Compromis, para. 20.
143
Third Restatement (1987), § 432, pp. 329-330; Oppenheim (1955), p. 295; Malanczuk
(1997), p. 110; O’Higgins (1960), p. 295; Bantekas and Nash (2003), p. 144.
144
The Corfu Channel case, p. 35.
23
Collecting evidence abroad constitutes prohibited enforcement jurisdiction.145 Below, it
will be shown that no positive rule allows for retention of the box. Accordingly, by seizing the
box, Margarida violated the sovereignty of Warangia and the non-intervention principle.
7.2 The action of Margarida is not justified under a positive rule of international law
The extraterritorial exercise of enforcement jurisdiction is only permitted if it can be based on
positive legal grounds. The So San incident illustrates how this rule is used in standard
practice with regard to the seizure of cargo.146 Before the USA decided to proceed with
boarding the So San on the high seas, it found justification for this in the UNCLOS: the ship
seemed to be either stateless or a pirate ship.147 It is highlighted that, unlike in the present
scenario, the boarding of the ship took place on the high seas and hence did not infringe the
sovereignty of any other state. Even though the US actually found Scud missiles and dual-use
chemicals on the ship, it did not seize them.148 As soon as Yemen, the flag state of the ship,
inquired into the legal grounds for searching and declared that it purchased these weapons
legally, the US released the vessel and its complete cargo.149 The immediate release of the
ship with the WMD cargo reflects not only the fact that there is no permissible rule for seizure
of such material,150 but also that a seizure of cargo is generally not allowed. Furthermore, the
US Government recognized that while it was permissible to stop and search the seemingly
stateless ship, the USA had no clear authority to justify the So San seizure or the confiscation
145
Jamnejad and Wood (2009), p. 372.
146
Thomas (2009), p. 673; Syrigos (2006), p. 184.
147
Barry (2004), p. 300.
148
Guilfoyle (2007), p. 11.
149
Syrigos (2006), p. 184.
150
Barry (2004), pp. 299-308.
24
of otherwise legal weapons.151 This statement reflects the opinio juris of USA that seizure or
confiscation of cargo, even if consists of WMD, is contrary to international law in the absence
of an explicit legal basis. The fact that the US is not a party to the UNCLOS but still felt
bound by its provisions adds even more weight to the importance of justification for the cargo
seizure under the international positive law.
The BBC China incident supports and reflects custom in relation to the confiscation of
dual-use products, specifically concerning uranium centrifuge parts. Such confiscation can
only take place if the flag state government agrees to such an action or precaution.152
7.2 Margarida has committed an internationally wrongful act by seizing the box
According to art. 2 of the ASR, an internationally wrongful act consists of a breach
attributable to a state. The breach of international law by Margarida has been proven above.
The seizure is attributable to Margarida on the basis of art. 4, as the box was taken by
Margaridan marines. However, if Margarida will dispute this, the alternative basis is Art. 11,
as Margarida acknowledged and adopted the seizure by including the box as evidence in its
national investigation.153 There are no circumstances precluding the wrongfulness of
infringement of the sovereignty of Warangia by Margarida.
7.3 Warangia is entitled to restitution, i.e. the return of the box
On the basis of Art. 35, Margarida is obliged to make restitution to re-establish the situation
which existed before the wrongful act was committed. According to the Factory at Chorzów
case, “reparation must, as far as possible, wipe out all the consequences of the illegal act and
re-establish the situation which would, in all probability, have existed if that act had not been
151
White House Press Briefing on 11 Dec 2002.
152
Thomas (2009), p. 674; Guilfoyle (2007), pp. 11-12.
153
See the Diplomatic and Consular Staff case, p. 35, para. 74.
25
committed”.154 Hence, the main rule in damages is restitution. The cargo box with its content
should be given to the Warangian government because only the return of the box can wipe out
the consequences of the violation of sovereignty of Warangia.
(i) SUBMISSIONS
Warangia respectfully asks the Court to adjudge and declare that
1. Margarida have violated, and continue to violate, international law by
a) the attack on, the seizure of and the sinking of the Argonaut;
b) the arrest and detention of Jason;
c) the refusal of the requested meeting between the Warangia’s consul and Jason;
d) the seizure and the refusal to deliver the cargo box and its contents.
2. Margarida are consequently ordered to
a) immediately release Jason from detention;
b) deliver the cargo box and its contents to Warangia;
c) pay compensation to Warangia for the loss of the Argonaut and its cargo.
3. Warangia has not committed an internationally wrongful act by attempting to provide
technical assistance in military matters to the Banana, in violation of SC Res. 2008.
154
The Factory at Chorzów case, p. 47.