TEAM RATONA

PUBLIC INTERNATIONAL LAW MOOT COURT COMPETITION

Case Concerning the Delfino Archipelago Marine Protected Area

ASTERIA

v.

RATONA

JD 2ND SEMESTER A.Y. 2016-2017

On Submission to the International Court of Justice The Peace Palace, The Hague, The

Netherlands

MEMORIAL FOR THE RESPONDENT

TABLE OF CONTENTS

LIST OF ABREVIATIONS

LIST OF AUTHORITIES

STATEMENT OF JURISDICTION

Asteria, the Applicant, and Ratona, the Respondent, hereby submit this dispute before this

Honourable Court, the International Court of Justice. This dispute concerns the

_____________________ in Articles ___________________ of ____________________.

This Honourable Court has jurisdiction as the final adjudicator once parties have exhausted

all domestic remedies.

Ratona requests this Honourable Court to issue a judgment in accordance with relevant

international law, including the United Nations Convention on Law of the Sea, Convention

on Biodiversity, _______________, conventions, jurisprudence developed by relevant courts,

and principles of international law.

QUESTIONS PRESENTED:

STATEMENT OF RELEVANT FACTS

BACKGROUND

Asteria and Ratona are states bordering the Sirena Sea, and their coastlines face each other

across the sea. Asterias economy is predominantly agriculture dependent. As the Asterian

coastline along the Sirena Sea is not suitable for farming, in this region, the population is

scarce and the inhabitants engage in only small-scale fishing while Ratona is considered as

one of the leading newly industrialized countries.

Delfino Archipelago is a group of islands situated in the Sirena Sea, which belongs to the

territory of Ratona its inhabitants depended on fishing for their living. In fact, since the 5th

century, the fisherfolk of Asteria have fished in the waters surrounding the Archipelago.
Asteria and Ratona are both original members of the United Nations Convention on the Law

of the Sea (hereinafter, UNCLOS).

In 1995, through an agreement, both the governments delimited the maritime boundary in the

Sirena Sea and determined the delimitation of the exclusive economic zone (hereinafter,

EEZ) in the waters surrounding the Delfino Archipelago. However, in the agreement, there

was no reference to the issue concerning the fishing rights of the Asterian fisherfolk. Since

ratification of this agreement, Asteria and Ratona have not negotiated the fishing operations

of the Asterian fisherfolk in the EEZ surrounding the Delfino Archipelago; however, at the

beginning of each year, Ratona issues a notification permitting Asterians to fish in the EEZ.

Over the years, owing to its rapid economic growth, Ratonas national income has

significantly increased and due to the economic development of the Archipelago as a resort

destination, some of the Asterian fisherfolk who fish in the surrounding waters have started

selling fish to the fish traders based in the Archipelago.

In Ratona, the growth of environmental awareness among people has been paralleling the

rapid growth of its economy, and NGOs calling for environmental protection and people are

very concerned about the negative impact of the development of the Delfino Archipelago on

its natural environment, and this has led to the active engagement of the NGOs in campaigns

targeting environmental conservation so an international environmental NGO named Utopia

publicly proposed the establishment of a Marine Protected Area (hereinafter, MPA) in the

waters surrounding the Delfino Archipelago, stating that the Archipelago, as a treasury of

rare species, needs immediate and sufficient environmental protection measures.

In March 2015, the environment minister of Ratona announced a new policy according to

which an MPA would be established in the territorial sea and the EEZ surrounding the

Delfino Archipelago and the taking of any natural resource, whether living or nonliving,
would be prohibited within the MPA. Asteria views this action to be totally unacceptable and

calls for an immediate consultation with Ratona regarding the creation of the MPA. Despite

of 2 rounds of negotiations, Asteria and Ratona could not reach an agreement. In September

2015, the third round of bilateral negotiations took place between Asteria and Ratona. Once

again, Asteria called for the withdrawal of the plan for establishing the MPA. During the

negotiation talks, Asteria stated that the proposal of possible compensation made by Ratona

is less than adequate for safeguarding the rights of Asterian fishermen; therefore, it is

unacceptable to Asteria. Ratona replied as follows: protection of the marine environment

around the Delfino Archipelago is a pressing issue, which requires the establishment of an

MPA as soon as possible. It is not an option for delaying the enactment of the legislation on

the MPA. So far, we have negotiated faithfully and made every effort to find a compromise.

As a result, no agreement was reached in the third round of negotiations.

On November 2015, the new law entitled the Act to Establish the Delfino Archipelago

Marine Protected Area (hereinafter, MPA Act) came into force.

ASTERIANS CASE

The president of Asteria condemned the establishment of the MPA Act by Ratona as follows:

Ratona did not negotiate with Asteria in good faith and has unilaterally established the

MPA. This is tantamount to violating the international law applicable to both countries, and

this is totally unacceptable for us.

In December 2015, a patrol boat belonging to the Ratonan Coast Guard inspected an Asterian

fishing vessel within the Ratonan EEZ around the Delfino Archipelago in suspected violation

of the MPA Act. The Ratonan authorities did not arrest and impose any penalty on the vessel.

However, the foreign minister of Asteria strongly protested against Ratonas actions, stating

that the boarding inspection by Ratona of our vessels is illegal.

The Applicant, the Government of Asteria, asks the Court to adjudge and declare that (1) the

establishment of the Delfino Archipelago MPA and the measures taken by Ratona based on

the MPA Act constitute violations of international law. (2) accordingly, Ratona must assume

responsibilities including the abolishment of the MPA Act.

RATONANS CASE

On the other hand, the foreign minister of Ratona released a statement that the Government

of Ratona has exercised its legitimate jurisdiction on the basis of international law and our

domestic legislation. Therefore, these are no grounds for blaming us.

The Respondent, the Government of Ratona, asks the Court to adjudge and declare that (1)

the establishment of the Delfino Archipelago MPA and the measures taken by Ratona based

on the MPA Act have not constituted violations of international law. (2) accordingly, Ratona

does not assume any responsibility. If Ratona were to have violated international law, the

Government of Asteria does not have the right to ask the Court to order the abolishment of

Ratonas MPA Act.

SUBMISSION BEFORE THE INTERNATIONAL COURT OF JUSTICE (I.C.J.)

Both the states jointly submitted the dispute to the Court by concluding the Special

Agreement based on Article 40(1) of the Statute of the International Court of Justice. The

Special Agreement provides that it is agreed by the Parties that Asteria shall act as Applicant

and Ratona as Respondent; however, such an agreement is without prejudice to any questions

as to the burden of proof.

STATEMENT OF JURISDICTION

QUESTIONS PRESENTED

SUMMARY OF PLEADINGS
1. MPA not violative of IL

a. Art. 56 and 58 (sovereign rights)

b. Negotiations in good faith (due regard, compensation)

B. Ratona has exercised its rights and performed its obligations in good faith and with due

regard to the rights and duties of other States based on Article 56(2) 1 and Article 2792 of the

UNCLOS, and Generally Accepted Principles of International Law.

Every coastal state has the duty to act in good faith in exercising its rights and fulfilling its

obligations with due regard to the rights and duties of other states within its Exclusive

Economic Zone (EEZ)3. Hence, a conduct of good faith is implicit in the duty of the coastal

state to negotiate with other states concerning the latters rights and obligations, and any

negotiation absence of this is invalid.

In the case of Lac Lanoux4 (1957), flexibility, willingness to compromise, and a temporary

suspension of parties rights during negotiation were aspects of good faith valued by the

arbitration tribunal. In this case, the fundamental process of negotiation in good faith is

described by the tribunal as one whose purpose is placed in equilibrium with the interests in

1 Art. 56(2). In exercising its rights and performing its duties under this
Convention in the exclusive economic zone, the coastal State shall have due
regard to the rights and duties of other States and shall act in a manner
compatible with the provisions of this Convention.

2 Art. 279. States Parties shall settle any dispute between them concerning the
interpretation or application of this Convention by peaceful means in accordance
with Article 2, paragraph 3, of the Charter of the United Nations and, to this end,
shall seek a solution by the means indicated in Article 33, paragraph 1, of the
Charter.

3 Supra note 1

4 FRANCE v. SPAIN (1957) 12 R.I.A.A. 281; 24 I.L.R. 101 Arbitral Tribunal

November 16, 1957
the conflict. The State has, by rules of good faith, the obligation to take into consideration the

different interests in attendance, to look to them to give all satisfaction compatible with the

pursuit of their own interests and to show that it has, as its subject, a real care to reconcile

the interests of the other riparian owner with its own interests.

Sustained maintenance of significant negotiations was an aspect of good faith valued by the

tribunal in the Arbitration between Kuwait and the American Independent Oil Company

(AMINOIL) (1982)5. In this case the tribunal identified good faith as part of general

principles to which parties, when embarking on a negotiation, are bound to comply when

carrying out an obligation to negotiate, namely good faith as properly to be understood:

sustained upkeep of negotiations over a period appropriate to the circumstances, awareness

of the interests of the other party, and a persevering quest for an acceptable compromise.

The good faith of parties to a treaty, to apply its terms reasonably and in such a way that its

purpose can be realized, was a central concern of the ICJ in the Case Concerning the

Gabcikovo-Nagymaros Project6. This case concerned, among other things, a treaty between

Hungary and Slovakia on a joint project of locks and dams, and protracted disputes between

the two countries after unilateral termination of this treaty by Hungary. The Court invoked

the precepts of flexibility and comprehensiveness that it had emphasized in the North Sea

Continental Cases, in its directives to the parties: It is for the Parties themselves to find an

agreed solution that takes into account the objectives of the Treaty, which must be pursued in

a joint and integrated way, as well as the norms of international environmental law.

Ratona and Asteria have entered into negotiations in good faith concerning the latters alleged

fishing right over Delfino Archipelago to arrive at an acceptable compromise and to reconcile

5 Arbitration between Kuwait and the American Independent Oil Co., (AMINOIL)21
ILM1982, 1014

6 Case Concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) (1997

General List No 92)
their respective interests. Ratonas continuous offer and efforts to enter into an amicable

settlement with Asteria can be seen through the series of negotiations occurred between them,

however, both states failed to come up with an agreement. A state is free to negotiate with

other states and is not liable for failure to reach an agreement, provided it is done in good

faith. Thus, Ratona has no liability with Asteria on account of the failed negotiations. On the

contrary, despite of the failed negotiations, Ratonas earnest efforts to settle the alleged

fishing rights of Asteria can be appreciated through its proposal of a possible compensation to

safeguard such alleged rights of Asteria which shows due regard of the coastal state to the

rights of other States. Moreover, Ratonas willingness to resolve the dispute before the

International Court of Justice (ICJ)7 exhibits good faith in settling the concerned fishing

rights of Asteria. Therefore, all of these acts of Ratona is in accordance with international

law.

http://lcnp.org/events/04_02_14/EShaferpaper.pdf

C. Ratona lawfully exercised its right to inspect foreign vessels within its EEZ under Article

73(1)8 of the UNCLOS.

The coastal State has sovereign rights to explore and exploit living resources but it also has

certain obligations with respect to the management of conservation of the living resources in

its EEZ. Coastal State has enforcement jurisdiction that provides for the possibility of the

coastal State sanctioning violations of laws and regulations concerning living resources in its

exclusive economic zone.

7 Supra note 2

8 Art. 73(1). The coastal State may, in the exercise of its sovereign rights to
explore, exploit, conserve and manage the living resources in the exclusive
economic zone, take such measures, including boarding, inspection, arrest and
judicial proceedings, as may be necessary to ensure compliance with the laws
and regulations adopted by it in conformity with this Convention
In the case of M/V "Virginia G" Case (Panama/Guinea-Bissau) 9, the Tribunal has already

stated that the enforcement measures taken have to be necessary to ensure compliance

with the laws and regulations adopted by the coastal State in conformity with the Convention.

In the view of the Tribunal the principle of reasonableness applies generally to enforcement

measures under article 73 of the Convention. It takes the position that in applying

enforcement measures due regard has to be paid to the particular circumstances of the case

and the gravity of the violation.

Ratona in the exercise of its sovereign rights to conserve and manage the living resources in

its EEZ may take such measures including inspection as may be necessary to ensure

compliance with the MPA Act. Thus, the act of Ratonan Coast Guard in inspecting the

Asterian fishing vessel within the Ratonan EEZ around Delfino Archipelago in suspected

violation of the MPA Act constitutes exercise of legitimate sovereign rights by Ratona, and is

not illegal, contrary to Asterias allegation. The mere presence of a fishing vessel within the

EEZ of Ratona is an indication of violation of MPA Act which prohibits fishing within the

EEZ, there is a probable cause for Ratona take such precautionary measures. Moreover, the

inspection conducted by Ratona is reasonable enough to ensure compliance with the MPA

Act. It should be noted that Ratonan authorities did not arrest and impose any penalty on the

Asterian vessel when the latter was suspected in violating the MPA Act, therefore Ratona did

not take such measures in excess of its sovereign rights.

c. Art. 73- inspection of foreign vessel (precautionary principle)

9 The M/V "Virginia G" Case (Panama/Guinea-Bissau) Case No. 19, ITLOS
II. THE EXERCISE OF RATONAS SOVEREIGN RIGHTS PREVAILS OVER ASTERIAN

TRADITIONAL FISHING RIGHTS

A. Sovereign rights of a coastal state in EEZ weighs superior than the

historic/traditional fishing rights accorded by customary international law

The Law of the Sea Convention was clearly drafted so that the economic rights of

coastal states in their EEZ may have greater weight than any rights accorded to other states

by customary international law. This means that when it comes to another states claim to

historic fishing rights within waters 200nm off the coast of another state, such claim is

subject to the coastal states exclusive sovereign rights in that zone as accorded by the Law of

the Sea convention.

Well settled is the fact that both Ratona and Asteria are original parties to the

UNCLOS. Under international law, once a state ratified or acceded to a treaty, the state

concerned is bound by the rules laid down in that treaty. The EEZ regime in UNCLOS limits

the application of historic claims, as the EEZ regime puts a large area of the ocean under the

coastal states jurisdiction, despite the traditional practice of other states in the same area.

Asteria and Ratona ratified UNCLOS, therefore, agreeing to be bound by the rules UNCLOS

created, including the rules regarding historic titles and EEZ regime.

Moreover, States have the sovereign right to exploit their natural resources pursuant to

their environmental policies and in accordance with their duty to protect and preserve the
10
marine environment. Hence, other states shall have due regard to the rights and duties of

the coastal State and shall comply with the laws and regulations adopted by the coastal

State.11 Stated likewise, it is within the duty of Nationals of other States fishing in the
10 Article 56. Rights, Jurisdiction and Duties of the Coastal State in the Exclusive
Economic Zone

11 Article 58. Rights and Duties of other States in the Exclusive Economic Zone
exclusive economic zone to comply with the conservation measures and with the other terms

and conditions established in the laws and regulations of the coastal State.12

Further, traditional fishing rights are not absolute or impervious to regulation, thus, must

necessarily be regulated to conserve the environment and prevent it from over-exploitation. 13

This means that historic fishing rights are not exclusive, and thus, its non-exclusivity does not

raise a legitimate claim to sovereignty or title to territory, but only gives rise to the right of a

state making the claim to continue fishing within the EEZ, subject to the discretion of a

coastal state. Customary international law, in this respect, does not restrict the coastal state

from reasonable regulation14 nor would it prevent the costal state from assessing the scope of

traditional fishing to determine, in good faith, the threshold of scale and technological

development beyond which it would no longer accept that fishing by foreign nationals is

traditional in nature.

However, historic or traditional fishing rights should be taken into consideration in

exceptional circumstances as laid down in the Gulf of Maine Case, which provides for

catastrophic social and economic repercussions if fisheries rights are ignored. 15 The same is

reiterated in the case between Barbados and Trinidad and Tobago where it was held that

fishing activities are deemed relevant only in such exceptional circumstances.16

12 Article 62(4)

13 Philippines v. China par. 809

14 North Atlantic Coast Fisheries Case

15 Gulf of Maine Case

16 Barbados/Trinidad and Tobago Case

 In Philippines v. China, any historic rights China may have had in the waters of South

China Sea beyond its territorial sea were extinguished by the adoption in the Convention and

in customary law of the concept of the exclusive economic zone.17

Thus, both Ratona and Asteria are original members of the UNCLOS and being so,

they are bound by the rules UNCLOS created, including the rules regarding historic titles and

EEZ regime. Therefore, any historical claim, such as traditional fishing rights that Asteria

may have in Delfino Archipelago, will not prevail over Ratonas sovereign rights as Ratona

being a coastal state, is under no obligation to recognize them since by accepting the EEZ

regime, Asteria has given up any claims it may have had based on traditional of historic

fishing rights.

B. Ratona is not bound to recognize the traditional fishing rights of Asteria as there

exist no bilateral agreement between the two states

In the exclusive economic zone, the coastal State has a sovereign rights for the purpose of

exploring and exploiting, conserving and managing the natural resources, whether living or

non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with

regard to other activities for the economic exploitation and exploration of the zone, such as

the production of energy from the water, currents and winds.18

As an incident of the sovereign rights of a coastal state, Ratona is not bound to recognize the

traditional or historic rights of Asteria, unless these parties will enter into an agreement. The

delimitation of the exclusive economic zone between States with opposite or adjacent coasts

shall be effected by agreement on the basis of international law.19 In most cases, bilateral

17 Philippines v. China

18 Article 56(1)(a)

19 Article 74(1)
agreement as to delimitation of maritime boundaries includes the traditional fishing rights of

another state, however, in the foregoing, the agreement between asteria and ratona was only

about the delimitation of boundaries itself, without reference as to the issue of fishing rights.

Moreover, it is established that Ratona shall have due regard to the rights and duties of other

states20 thus, it must be limited only to the nature of the rights held by Asterian Fisherfolks.

In Mauritius v. United Kingdom, the ordinary meaning of due regard calls for the United

Kingdom to have such regard for the rights of Mauritius as is called for by the circumstances

and by the nature of those rights. The Tribunal declines to find in this formulation any

universal rule of conduct. The Convention does not impose a uniform obligation to avoid any

impairment of Mauritius rights; nor does it uniformly permit the United Kingdom to proceed

as it wishes, merely noting such rights. Rather, the extent of the regard required by the

Convention will depend upon the nature of the rights held by Mauritius, their importance, the

extent of the anticipated impairment, the nature and importance of the activities contemplated

by the United Kingdom, and the availability of alternative approaches.21

It was further held in Icelandic Fisheries Jurisdiction that where historic fishing rights

of a third state continues to exist within the EEZ of a coastal state, such rights were usually

recognized through bilateral agreements between the states concerned. 22 Hence, the most

appropriate solution to disputes concerning rights of a coastal state based on EEZ and rights

of another state based on their historical claim is not just mere negotiation, but an agreement

as to that matter, where both states are bound.

20 Article 56(2)

21 Chagos Arbitration Case

22 Icelandic Fisheries Jurisdiction Case

 Assuming Asteria has traditional fishing rights, in order to ensure the continuity of

such, one State should have a bilateral agreement with the State concerned, in this case,

Ratona and Asteria. In general, bilateral agreements do not specifically mention traditional

fishing rights, but contain clauses concerning fishing rights and various issues.23

There happened several negotiations between Ratona and Asteria, however, the only

agreement established was about the delimitation of the maritime boundary, by which both

states decided that Delfino Archipelago is within the EEZ of Ratona. There was no reference

as to the issue concerning the fishing rights of the Asterian fisherfolk. Since ratification of

this agreement, Asteria and Ratona have not negotiated the fishing operations of the Asterian

fisherfolk in the EEZ surrounding the Delfino Archipelago, thus, in conclusion, there was no

bilateral agreement entered into between these States.

C. Ratona has no obligation under UNCLOS to recognize historic rights, unlike for

archipelagic states

No obligation expressly provided for under UNCLOS that Coastal States have to

recognize historic rights unlike for archipelagic states. In the latter, any traditional right and

interest which has been applied by the bordering state on any part of the archipelagic waters

of archipelagic state regulated by the bilateral agreement among those states shall be

continued and respected.24 Further, archipelagic state shall respect the agreement with other

states and shall recognize traditional fishing rights of bordering state within any part of the

23 Article 72(1). Rights provided under articles 69 and 70 to exploit living

resources shall not be directly or indirectly transferred to third states or their
nationals by lease or license, by establishing joint ventures or in any other
manner which has the effect of such transfer unless otherwise agreed by the
States concerned.

24 Article 47(6)
archipelagic waters.25 In Philippines v. China, the court emphasized the different treatments

of traditional fishing rights with regard to the archipelagic waters, exclusive economic zone

and territorial sea.26

Meanwhile, the requirements and conditions of the rights shall be based upon the related

states and regulated within the bilateral agreement. In a coastal state, historic title has not

been expressly reserved in the provisions dealing with the EEZ. However, a consideration

for traditional fishing in the EEZ is provided under Article 62 of UNCLOS, although the

terms traditional and historic are not used. 27 Hence, Ratona is solely responsible for

determining its own total allowable catch, and therefore the surplus, if any. The provision

only requires for Ratona to consider. Fishing practices of other States within EEZ are

merely considerations to be taken into account by Ratona as a Coastal state, and thus it is

within its discretion. The concept of historic rights remains relevant only to the extent that it

is among the factors to be taken into account in giving access to surplus fish.28

III. ASTERIA DOES NOT HAVE ANY LEGAL CAPACITY TO ASK THE COURT

TO ABOLISH RATONAS MPA

Asterias statement that due consideration should be given to its historical dependence on

fishery resources if an MPA is to be established can be based on the duty imposed on a

coastal State to exercise its sovereignty over the territorial sea subject to the Convention and

25 Article 51(1)

26 Philippines v. China

27 Article 62(2)

28 Article 62(2) the coastal state shall determine its capacity to harvest the
living resources of the EEZ. Where the coastal state does not have the capacity
to harvest the entire allowable catch, it shall, through agreements or other
arrangements, give other states access to the surplus of the allowable catch.
other rules of international law29, which include the general international law obligations to

respect traditional rights relating to the exploitation of natural resources in exercising its

rights and performing its duties under the Convention in the EEZ.30

However, such traditional fishing rights have extinguished. In Mauritius vs. UK, the Court

ruled that UKs imposition of a unilateral MPA which effectively extinguishes Mauritiuss

traditional fishing rights in the territorial sea surrounding the Chagos Archipelago will not

constitute an abuse of its rights if UK must have either: (a) secured the agreement of

Mauritius; or alternatively (b) at least entered into genuine, serious and good faith efforts to

reach an agreement with Mauritius as to how those rights may continue to be exercised. 31

In the present case, Ratona has complied with the Convention where States Parties shall

fulfill in good faith the obligations and shall exercise the rights, jurisdiction and freedoms

recognized in this Convention in a manner which would not constitute an abuse of right 32 by

acting in good faith in negotiating with Asteria as shown in rounds of bilateral negotiations,

and exerted every effort, as the Ratonan minister of environment proposed some

compensation for Asterian fisherfolk. In Hungary vs. Slovakia, the ICJ has consistently

repeated that States are under an obligation so to conduct themselves that the negotiations

are meaningful.33

As supported by a another case, the WTO Appellate Body formulated the standard as

requiring that measures which are undertaken for legitimate environmental purposes, but

which may impact other States rights under a treaty regime, must involve inter alia ongoing

29 Article 2(3) of UNCLOS

30 Article 56(2)

31 Chagos Marine Protected Area Arbitration

32 Article 300

33 Case concerning Gabkovo-Nagymaros Project

serious, good faith efforts to reach a multilateral agreement in order not to constitute an

abus de droit.34 A supporting statement by Professor Bin Cheng provides:

Whatever the limits of the right might have been before the assumption of the

obligation, from then onwards the right is subject to a restriction. Henceforth,

whenever its exercise impinges on the field covered by a treaty obligation, it must

be exercised bona fide, that is to say, reasonably. A reasonable and bona fide

exercise of a right in such case is one which is appropriate and necessary for the

purpose of the right (i.e., in furtherance of the interests which the right is

intended to protect.) It should at the same time be fair and equitable as between

the parties and not one which is calculated to procure for one of them an unfair

advantage in the light of the obligation assumed. A reasonable exercise of the

right is regarded as compatible with the obligation, but the exercise of the right in

such manner as to prejudice the interest of the other contracting party arising out

of the treaty is unreasonable and is considered as inconsistent with the bona fide

execution of the treaty obligation, and a breach of the treaty35.

Through all the efforts of Ratona to negotiate with Asteria, it shows that Ratonas

unilateral declaration of MPA does not constitute an abuse of Asterias rights because it

entered into genuine, serious and good faith efforts to reach an agreement with Asteria as to

34 United States Import prohibition of certain shrimp and shrimp products (Report of
the AppellateBody, 22 October 2001), WT/DS58/AB/RW, paras 152-3; United States
Import prohibition of certain
shrimp and shrimp products (Report of the Appellate Body, 12 October 1998),
WT/DS58/AB/R, para. 158.

35 B. Cheng, General Principles of Law as applied by International Courts and Tribunals

(Stevens andSons, Ltd., 1953), p. 125.
 how those rights may continue to be exercised, based on Mauritius vs. UK36, therefore

extinguishing Asterias traditional fishing rights and giving it no legal capacity to ask the

Court to abolish Ratonas MPA.

Since Asterias traditional fishing rights is extinguished, it does no longer have any

rights or interests in any laws passed by Ratona regarding its marine environment within its

EEZ. Consequently, Ratona shall not assume any responsibility. If Ratona were to have

violated international law, the Government of Asteria does not have the right to ask to Court

to order the abolishment of any of its laws more importantly the MPA Act since a State

cannot assail the laws of another State based on Doctrine of Equality of States.

I. THE ESTABLISHMENT OF DELFINO ARCHIPELAGO MPA AND THE MEASURES

TAKEN BY RATONA DID NOT CONSTITUTE VIOLATIONS OF INTERNATIONAL

LAW

I. RATONA LAWFULLY EXERCISED ITS RIGHT TO INSPECT FOREIGN

VESSELS WITHIN ITS EEZ UNDER ART. 73 OF UNCLOS

II. (NEGOTIATIONS IN BAD FAITH) ART. 279 PEACEFUL SETTLEMENT OF

DISPUTES.

PLEADINGS

1. The establishment of Delfino Archipelago MPA and the measures taken by Ratona did not

constitute violations of International Law:

It was an exercise of Ratonas sovereign rights over Delfino Archipelago, based on Articles

56 and 73 of UNCLOS;
Asterian government failed to establish their traditional fishing rights over Delfino

Archipelago based on ______ the Australian Law Reform Commission argued that in

determining whether an activity is traditional, the attention should focus on the

36 Chagos Marine Protected Area Arbitration

 purpose of the activity rather than the method. This has been applied to foreign

fishermen, as regulated by the Torres Strait Treaty of 1978. The Treaty defines

traditional fishing as the taking, by traditional inhabitants for their own or their

dependants' consumption or for use in the course of other traditional activities, of the

living natural resources of the sea, seabed, estuaries and coastal tidal areas;
Assuming that Asteria have established their traditional fishing rights over Delfino

Archipelago, sovereign rights of Ratona over Delfino Archipelago prevails over such

established right citing The Effect of Historic Fishing Rights In Maritime Boundaries

Delimitation by Leonardo Bernard

2. Ratona lawfully exercised its right to inspect foreign vessels within its EEZ under Art. 73 of

UNCLOS
3. Asteria and Ratona have entered into negotiations in good faith concerning the formers

alleged fishing right over Delfino Archiprlago based on Art. 279 Peaceful settlement of

disputes.
4. Asteria does not have the legal capacity to ask the court to abolish Ratonas MPA Act.

PRAYERS FOR RELIEF

For the foregoing reasons, the respondent respectfully requests this Honourable Court to

adjudge and declare that:

1. The establishment of Delfino Archipelago MPA and the measures taken by Ratona based on

the MPA Act have not constituted violations of International Law.

2. Ratona does not assume any responsibility.
3. With reference to No. 2, if Ratona indeed have violated International Law, the Government of

Asteria does not have the right to ask the court to order the abolition of Ratonas MPA Act.