Dr.

AMBEDKAR GOVT LAW COLLEGE, PONDICHERRY

XXXVII ALL INDIA MOOT COURT COMPETITION, 2016
TEAM CODE:

IN THE SUPREME COURT OF YANALAM

IN THE PROCEEDING BETWEEN

NATIONAL FISHERMEN FORUM

(PETITIONER)

AND

UNION OF YANALAM
( RESPONDENT)

(WP NO.

/ 2016)

MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS...i
INDEX OF AUTHORITIESi
LIST OF STATUTES ..ii

INTERNATIONAL TREATIES AND DECLARATIONS.....ii

BOOKS...ii

DICTIONARIES AND WEBSITES.ii

TABLE OF DOMESTIC CASES.....iii

TABLE OF INTERNATIONAL CASES...iii

STATEMENT OF JURISDICTION...............................................................................................vi
STATEMENT OF FACTS...........................................................................................................vii
STATEMENT OF ISSUES............ix
SUMMARY OF ARGUMENTS......................................................................................................x
WRITTEN PLEADING............1-25
I.

THE PIL IS NOT MAINTAINABLE.....1

1.1 THE HONBLE COURT DOES NOT HAVE TERITORIAL JURSIDICTION........................1
1.2 THE MARITIME TERITORY IS NOT UNDER THE SOVEREIGNITY OF UOY................4
1.3 SUBJECT MATTER OF ISSUE IS GOVERNED BY TERMS OF A VALID BILATERAL
TREATY AND INTERNATIONAL LAW AND NOT BY MUNICIPAL LAW OF UOY ..5
1.4 DELIMITATION OF SEA AREAS ALWAYS HAS INTERNATIONAL ASPECTS
AND IT CAN NOT BE DEPENDENT MERELY UPON MUNICIPAL LAW OF

THE COASTAL STATE............................................................................................................6

1.5 THERE IS NO EFFECTIVE NATIONALITY OF UOY IN THE SUBJECT
MARITIME TERITORY .7

MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

TABLE OF CONTENTS

II.

THERE IS NO TRADITIONAL FISHERY RIGHTS RECOGNIZED BY

LAW..7
2.1 WITHDRAWAL OF DE-JURE RECONGNITION
LAW.7
2.2

IS NOT POSSIBLE IN INTERNATIONAL

FACTORS RESPONSIBLE FOR FALL IN PRODUCTION WERE BEYOND THE CONTROL OF THE
CLAIMANT.............................................................................................................9

2.3 DUE PROCESS AND PROCEDURES FOR AMICABLE SETTLEMENT

FOLLOWED BY THE

HAVE NOT BEEN

RESPONDENT................................................................10

2.4 RESPONDENT BOUND BY THE PRINCIPLE OF PROMISSORY ESTOPPEL................12

PRAYER....................................................................................................................................... 26

MEMORIAL ON BEHALF OF THE RESPONDENT

LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

Art.

Article

Edition

Ed.

Honble

Honourable

Ibid

Ibidem

ICJ

International Court of Justice

No.

Number

p.

Page

Para.

Paragraph

PIL

Public Interest Litigation

SC

Supreme Court

SCR

Supreme Court Record

v.

Versus

VCLT

Vienna Convention on Law of treaties

Vol.

Volume

MEMORIAL ON BEHALF OF THE RESPONDENT

INDEX OF AUTHORITIES

INDEX OF AUTHORITIES
LIST OF STATUTES

Constitution of India

Public International Law

LIST OF TREATIES

Agreement between India and the Sri Lanka on the Maritime Boundaries , in Historic Waters
between the two countries and related matters 1974 and 1976

Vienna Convention On Law of Treaties, 1980

DICTIONARIES

Blacks Law Lexicon, 8th Ed. (2004)

LIST OF BOOKS
Starkes International Law, J A. Shearer, 6th impression, 2011
Apprehensions International Law, Encl. by (Robert Jennings) and (Arthur Watts), 9 th edition 2003, Vol.1
International Law & Human Rights, Dr. S K Kapoor , 19th Edition, 2014
International Law, Malcom N. Shaw, 4th ED, 1997
Public International Law, M.P. Tandon, 7th Edition, 2012
Public International Law, M.P. Tandon, 14th Edition, 2000
Theory and Practice of International Relations, O.P. Sinha, 2014
International Law and Human Rights, K.C. Joshi, 2006
A concise book on International Law and Human Rights, H.O. Agarwal, 3 rd Edition, 2012
Human Rights, S. R. Myneni1st edition, 2013
Human Rights under International Law and Indian Law, S. K. Kapoor6th edition, 2014
Law Relating to Human Rights, V. Nirmala, 15th Edition 2011
Human Rights and International Organisations, Parihshith K. Naik and Mehrabudin Wakman, 2013
th
14. Basu D.D , Constitution of India ,14
edition 2009, LexisNexis, Butterworth
a. Wadhwa Publication Nagpur.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

15. MP Jain., Indian Constitutional Law, 7th Edition 2014, LexisNexis Butterworth
a. Wadhwa Nagpur.
th
16. Seervai H.M. , Constitutional law of India, 4 Edition 2002, Volume 2, Universal
a. Book Traders.
th
17. Shukla V.N , Constitution of India, 11 edition 2008, Eastern Book Company.

MEMORIAL ON BEHALF OF THE RESPONDENT

10

INDEX OF AUTHORITIES

LIST OF WEBSITES
1.
2.
3.
4.
5.
6.

www.indiakanoon.org
Manupatra.com
SCC Online
West Law
Hein Online
VakilNo1.com

LIST OF CASES

AAPL v. Sri Lanka, ICSID Case No. ARB/87/3

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STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Respondent has approached the Honble supreme court of Yanalam, in response to the
jurisdiction raised by the petitioner under Article 32 read with Article 21 of the constitution of
Yanalam

12

vi

MEMORIAL ON BEHALF OF THE RESPONDANT

13

STATEMENT OF FACTS

STATEMENT OF FACTS

Yanalam is a federal state having second highest population in the world, which
is geographically a peninsula, surrounded by Bay of Batalana on the East, the
Nadalay Ocean in the south and the Afrozean Sea in the West.

The sea food exports alone comprises 11% of the total exports of the country,
since 1/6th of the population depend on fishing in the country. Atana, the coastal
state of Yanalam, had access to all three surrounding seas, while fishing the
fisherman of Atanapura, which falls in the south east region of the state, enter
into the territorial waters of the neighboring island nation and set arrested and
at times confiscation and destruction of their boats and fishing nets, by their
naval forces.

On January 2, 2016, about 28 Fishermen with fishing boats entered the

territorial waters of the island nation from Atanapura where on the naval forces
of the Island nation opened fire at them assuming them as trespassers and
narcotics and arms smugglers.

The firing incident has resulted in the death of twelve fishermen and arrest of
the remaining sixteen which had resulted mass protest in the costal state and the
state sponsored a complete closure in the state. The National Fishermen Forum
a collective body of fishermen and representatives of civil society had filed a
PIL in this Honble Court seeking directions to the national government to
ensure the protection and traditional fishing rights of the for their livelihood
and seeking further directions to the UOY to take effective steps to protect the
life of the fishermen and all other necessary steps to prevent the confession and
destruction of their boats and fishing nets in the Bay of Batalana, Nadalay
Ocean and Afrozean sea.

The UOY contends that the PIL is not maintainable and seeks the dismissal of
the PIL on the ground that these are no traditional fishing rights recognized by
land.

14

MEMORIAL ON BEHALF OF THE RESPONDANT

15

STATEMENT OF ISSUES

STATEMENT OF ISSUES

I.

WHETHER PIL FILED BY THE PETITIONER IS MAINTAINBLE IN THIS

HONBLE COURT:
A. To give directions to the UOY on the basis of constitutional guarantee of
fundamental right of right to life and lively hood of the fishermen of Atana
B. To give directions to the UOY to ensure, protect and guarantee fishery rights of the
fishermen for their livelihood
C. To give directions to the UOY to take effective steps to protect the life of the
fishermen and all other necessary steps to prevent the confiscation and destruction
of their boats and fishing nets in the Bay of Batalana, the Nadalay Ocean and
Afrozean sea

II.

WHETHER THE P I L F I L E D B Y T H E P E T I T I O N E R C A N B E
DISMISSED

ON

THE

GROUND

T H AT

THERE

AR E

NO

T R A D I T I O N A L F I S H I N G R I G H T S R E C O G N I S E D B Y L AW

16

MEMORIAL ON BEHALF OF THE RESPONDANT

17

SUMMARY OF ARGUMENTS

SUMMARY OF ARGUMENTS

I.

THAT THE PIL IS NOT MAINTAINABLE :

It is humbly submitted that this Honble Court does not have jurisdiction over the issue, since

18

the place chosen by the petitioners where the fundamental right of right to life 1 and thereby
to livelihood2 which is sought for to be exercised, does not fall under the territorial
jurisdiction3 of this Honble court. So we submit that this Honble court cannot give any
directions to this respondent in this matter.
The territorial waters of that area of sea falling between this UOY and the island nation is
governed by a bilateral treaty4 between these countries made in the year 1974, and a further
treaty made in the year 1976. Any issue related to such treaties can only be addressed by the
ICJ5 and not by the supreme courts of the member countries. So protection, ensuring,
guaranteeing of any traditional fishing rights in case of existence of such rights can be filed in
the ICJ only. Moreover, the place of incidences are the territorial waters of the adjacent island
nation6. Neither the Union government nor this Honble court can exercise the sovereignty
and jurisdiction respectively.
And the UOY and the Island nation has entered into a valid treaty in the year ( 1976 ) , giving
effect to the final phase among transfer of islands or lands among them. Any military actions
may destabilize peace in the region. Violation of an internationally valid bilateral treaty
cannot be under the jurisdiction. Issues arising out of valid International bilateral treaty and
its implications can only be addressed in the ICJ which has jurisdiction of the same.

II.

THAT THERE

ARE

NO

TRADITIONAL FISHING

RIGHTS

RECOGNISED BY LAW

1 Article 21 of the Constitution

2 Olga Tellis vs Bombay Municipal Corporation and Ors SC, 1985
3 First Schedule of the Constitution defines territorial jurisdiction
4 Indo Srilankan Maritime Boundary Agreement, 1974
5 Article 93 of UN charter of which UOY is a member
6Classified reports as provided by the navy of the island nation to the High Commissioner of Yanalam
19

The traditional fishing rights claimed by the petitioner refers to such a period, when the
disputed area for fishing was regarded as high seas by fishermen of both regions., i.e of
Yanalam and of the island nation.
In the period before the treaty, fishing in both the nations was largely non-mechanised and the
fishermen used traditional boats (known as vallams) and traditional fishing nets. However,
with the advent of mechanization, the fishermen of ATANA have been using large dieselpowered boats and trawlers and also have been using drift-nets(known as Irattai Madi valai
in Tamil) and purse-seine nets(Surukku valai in tamil)which have been banned by the
fisheries department of ATANA7.
In spite of repeated warnings issued by Governments of both countries, these fishermen have
been trespassing into the maritime territory of the island nation. They have been poaching 8 on
their waters using banned equipment and depriving the traditional fishermen of the island
nation from earning their livelihood.

Deep sea fishing regulation Act, 2001

Banned equipment seized by navy of island nation

20

21

ARGUMENTS ADVANCED

WRITTEN PLEADING

CONTENTION I: THAT THE PIL FILED BY THE PETITIONER IS NOT

MAINTAINABLE

1.1

The Honble Court do not have Territorial Jurisdiction to entertain the PIL

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The Territory9 where the petitioner claims exercising of fundamental rights of right to
life, is such a territory where the Jurisdiction of the Honble Court does not exist. Since
Honble Court does not have Territorial Jurisdiction, a PIL claiming a fundamental right
in that territory is not maintainable.
1.2

The Maritime territory is not under the sovereignty of union of Yanalam

A PIL with reference to claiming of a constitutional right, whereon there is no
sovereignty of the nation UOY exist, is not maintainable. In other words, the Honble
court cannot direct UOY, i.e., this Respondent to do an act or refrain from an act, where
there exists no sovereignty of this respondent.

1.3

Subject Matter of Issue is Governed by a valid Bilateral treaty and thereby International
Law and not governed by municipal Law
The Subject matter of issue of protection of fishermen and their fishing activites in a
territory of the neighbouring Island nation is governed by the terms of bilateral treaty
between the union of Yanalam and the Island Nation. This Bilateral treaties of 1974 and
1976 are subject matters of International Law.
Such matter of International Law, cannot be filed under municipal law as Public Interest
Litigation

1.4

Delimitation of Sea Areas has an International Aspect, It cannot be dependent

merely upon the will of Coastal State as expressed in its municipal Law
Since the Delimitation of Sea areas has international repercussions, it cannot be
dependent merely upon the will of the coastal state as expressed in its municipal Law
Any Unilateral declaration of delimitation of sea areas may Invite hostile reaction from
the Island nation and a teaming up of other neighbouring nations, which may initiate a
conflict in that region whose dimensions are much huge than the petitioners claim of
public Interest.

5 An gl o - N or wa ge n ( S e r i e s C a s e IC J R e p 1 95 1 , P.116 )

6 Art 15 of 1982 convention from the Law of the Sea004, Para 68

7

9 Indo Srilankan Maritime Boundary Agreement, 1974

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_________________________________________

MEMORIAL ON BEHALF OF THE RESPONDANT

24

ARGUMENTS ADVANCED

1.5

There is no effective nationality in that maritime territory.

This respondent, i.e., UOY does not exercise effective nationality in that
maritime zone, which is essential for claiming sovereignty. Without existence
of such Sovereignty of a nation over the territory, any PIL in that territory will
not lie in that nations apex court. So, it is humbly submitted that this PIL is
filed by the petitioner not maintainable, since UOY do not exercise effective
nationality, over the maritime

Salini Nottelolum ( Liechenstien Vs Gautemals ICJ

25

_________________________________________

MEMORIAL ON BEHALF OF THE RESPONDANT

26

ARGUMENTS ADVANCED

2.1 WITHDRAWAL OF DE JURE RECOGNITION IS NOT POSSIBLE IN INTERNATIONAL LAW.

The de jure recognition of the island nations sovereignty over the fishing area near to
Kachatheevu in the sea, by the union of Yanalam cannot be withdrawn as per norms of
International Law.
2.2 A

COUNTRY

CANNOT

GRANT

AN Y

L AWF U L

RIGHT

TO

ITS

PEOPLE

W H E R E I N S O V E R E I G N T Y OF AN O T H E R N ATI O N I S E XE R C I S E D .

Lawful rights can be given to citizens by the state, with in their territory wherein sovereignty
of the state exists. Any right granted to the citizens away from the sovereign territory is
unlawful, leading to unjustified intervention with another sovereign power.
Such intervention is violation of Art 51 of Charter of UN, since there is no armed attack by
an alien enemy on the territory of UOY, which is a condition precedent for resorting to use of
force in self-defence.

A r t i c l e 5 1 o f U N c h a r t e r : To b e d o w n l o a d e d & a d d e d
The use of force in self added defense ByBib Vol.37 ( 1966) P.266

MEMORIAL ON BEHALF OF THE RESPONDANT

27

ARGUMENTS ADVANCED
2.3 : ENFORCEMENT OF LAWFUL TREATY RIGHTS OF ART 8

OF THE BILATERAL TREATY OF 1974 IS

CAN NOT BE FILED IN THIS HONBLE COURT.

Issues related to bilateral treaty between two sovereign nations cannot be addressed in a
municipal court of the member countries of that treaty.
Lawfulness of such claims can only be represented in any unbiased international forum like
UNO for remedial actions or in the ICJ for adjudication.

2.4: THERE IS NO DIRECT EVIDENCE OF POSSESSION BY THE UOY OR ANY ACTUAL EXERCISE OF
SOVEREIGNTY BY THE UOY IN THE SUBJECT TERRITORY

Acquisition of territory through occupation was a determining factor in earlier times,

especially in middle Ages. Such indirect presumptions, based on middle ages do not warrant
acquisition of territory. But Direct Evidence of possession and the actual exercise of

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sovereignty is of decisive importance10.

MEMORIAL ON BEHALF OF THE RESPONDANT

2.5 SOVEREIGN RIGHTS ARE STRONGER THAN, PREFERENTIAL

RIGHTS.
Preferential Rights cannot be exercised in the territorial waters of another sovereign
state, by an adjacent coastal state as good as Sovereign Rights. In the case of UK
and Northern Ireland Vs Iceland, ICJ in its Judgment 11 has talked about the
application of preferential rights, after crossing the territorial waters of Iceland. Why
because, such rights can never be a matter of claim, with in the territorial waters of
Iceland.
In the same way, the Preferential Rights claimed by the petitioner cannot be claimed
with in the maritime territory of the Island Nation. And hence, such rights cannot be a
recognizable lawful right.

10 Minquiers and Corehos (France vs UK) ICJ Reports 1953, p.47

29

2.6 FOR

DETERMINATION OF WHAT CONSTITUTE RELEVANT COASTS AND WHAT ARE

RELEVANT BASELINES ON THE UOY SIDE, THE COURT MUST FIRST ESTABLISH WHETHER
KACHATHEEVU

ISLAND

COMES UNDER THE SOVERIGNTY OF UOY

WHICH IS NOT

EXISTING IN THIS CASE.

The above formula of establishing sovereignty was first applied in the Bahrain case,
by the ICJ.

But the establishment of sovereignty by in the claimed island of

Katchatheevu does not exist so that relevant coasts, baselines are decided over it
The world court has observed in number of cases that maritime rights are derived
from the coastal states sovereignty over the land , a principle which can be
summarized as The Land Dominates Sea 12

MEMORIAL ON BEHALF OF THE RESPONDENT

11 North Sea continental shelf, ICJ Reports (1969) p.51, Para 96

12 Aegean sea continental shelf, ICJ Reports (1978) p.36, Para 86

30

PRAYER

PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the Counsels for
the Claimant humbly prays before this Honble Court to kindly adjudge and declare:

That the PIL is not maintainable before this Honble court

Seeking dismissal of the Public Interest Litigation on the ground that there are no
traditional fishing rights recognized by law

And pass any other appropriate order as the court may deem fit.
And for this act of Kindness, the Respondent as in duty bound, shall forever pray.

Respectfully Submitted
Sd/Counsel for
Respondent

31

MEMORIAL ON BEHALF OF THE RESPONDANT

32