Compromis_deletions_in_purple This is the compromis that highlights the sections removed by Amalea.
Landslide
General argument:
Ritania violated the Malachi Gap treaty and international laws
- Ritania broke article 12 section c “neither party shall exercise its rights here under in a manner which unduly inhibits the exercise of the rights of the other party…”
- Ritania violated the treaty and international laws by not including the dredging program or its impact on the fish.
Rio Declaration
-The EIA violated the Rio Declaration (principle 2)
-Ritania infringed upon the rights of Amalea to exploit the Dorian Wrasse.
-Amalea is a developing state
-Amalea has special protections awarded to it under the Rio Declaration because it is a developing country.
-The precautionary measures principle is a legal norm in which Ritania did not follow.The precautionary approach is when there are “threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation.” Article 15 rio dec.
-Under the polluter pays principle (PPP) In article 16, Ritania should bear the cost of pollution.
UN Conference on Human Env.
-Ritania is a member to the Stockholm Declaration and violated principle 2, “resources of the earth…must be safeguarded…through careful planning or management as appropriate”.
-Ritania’s EIA did not look at the effects of the dredging, the fish population or any marine environment impacts even after learning of the potential dangers and existence of gas hydrates which had the potential to cause a landslide.
-Ritania violated principle 7 of the Stockholm Dec. because it did not “take all possible steps to prevent pollution of the sea”
-The loss of the Wrasse is a violation of principle 8 of the Stockholm Dec. because Ritania undermined Amalea’s economic and social development and their quality of life.
International Covenant of Ecological, Social and Cultural Rights
-The International Covenant on Eco, Soc. And cult rights give Amalea cultural rights pertaining to the Dorian wrasse, as wells as economic rights. Ritanian has infringed upon these two rights.
-Amalea has been prevented from “freely pursuing their eco, soc., and cult. development.
-Amalea has a right ot freely dispose of their natural wealth and recourses (ICESCR) and move forward in an “economic direction that allows the people to prosper.” (this seems to help us WAY more than them)
UNCLOS
-They just listed article 61 with no application to the case. It specifies conservation and management measures to the living resources and preventing their overexploitation. I don’t see how this helps their case.
Ship
- Cargast Exercise in Maritime Salvage
- Underwater Heritage Cultural Laws
- Law of the Sea
- Maritime Boundaries
They use article 149 in part 5 to claim the ship and all of it’s contents as Amalean, however, the wording of the article is that consideration is paid to the country of origin for each individual artifact.
They then go on to use article nine of the law of salvage, which would grant special rights to the coastal states within their EEZ, however, the wreck was not found in the EEZ, since their EEZ was given up by the Malachai Gap Treaty.
For part 65 they once again use article 149 trying to say the same thing, repetition still does not help.
Next they use the UN convention on laws of the sea, they say that they are within their rights to have the wreck excavated as it is in imminent danger of collapse, which they were, however, by article 149 and other articles to say that nothing stands in the way of the original owner from placing a claim on their property.
For part seven, it is just further hammering of the EEZ. My primary argument here, is that this is not in their EEZ and they lose everything. They also bring up more UNCLOS on the reasons for threatening use of force however, their next sentence, is that Amalea is not a part of UNCLOS, and therefore does not have to abide by the obligations of it. I would argue that they are also not protected by it.
Rio Declaration Rebuttal
Declarations are not always legally binding and the Rio Declaration is a third-generation human rights document and non-binding.
Declarations
The term “declaration” is used for various international instruments. However, declarations are not always legally binding. The term is often deliberately chosen to indicate that the parties do not intend to create binding obligations but merely want to declare certain aspirations. An example is the 1992 Rio Declaration. Declarations can however also be treaties in the generic sense intended to be binding at international law. It is therefore necessary to establish in each individual case whether the parties intended to create binding obligations. Ascertaining the intention of the parties can often be a difficult task. Some instruments entitled “declarations” were not originally intended to have binding force, but their provisions may have reflected customary international law or may have gained binding character as customary law at a later stage. Such was the case with the 1948 Universal Declaration of Human Rights. Declarations that are intended to have binding effects could be classified as follows:
(a) A declaration can be a treaty in the proper sense. A significant example is the Joint Declaration between the United Kingdom and China on the Question of Hong Kong of 1984.
(b) An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting or explaining the provisions of the latter.
(c) A declaration can also be an informal agreement with respect to a matter of minor importance.
(d) A series of unilateral declarations can constitute binding agreements. A typical example are declarations under the Optional Clause of the Statute of the International Court of Justice that create legal bonds between the declarants, although not directly addressed to each other. Another example is the unilateral Declaration on the Suez Canal and the arrangements for its operation issued by Egypt in 1957 which was considered to be an engagement of an international character.
ITLOS 2011 Seabed Dispute Chamber Opinion
110. The sponsoring State’s obligation “to ensure” is not an obligation to achieve,
in each and every case, the result that the sponsored contractor complies with the
aforementioned obligations. Rather, it is an obligation to deploy adequate means, to
exercise best possible efforts, to do the utmost, to obtain this result. To utilize the
terminology current in international law, this obligation may be characterized as an
obligation “of conduct” and not “of result”, and as an obligation of “due diligence”.
Ritania violated the Malachi Gap treaty and international laws Rebuttal
“Ritania broke article 12 section c “neither party shall exercise its rights here under in a manner which unduly inhibits the exercise of the rights of the other party…”
MGT Gap Treaty Article 12 c Text
(c) neither Party shall exercise its rights hereunder in a manner which unduly inhibits the
exercise of the rights of the other Party and nothing in this Treaty shall be interpreted
to render the Malachi Gap or any portion thereof the sovereign territory of either
Party; and
MGT Gap Treaty Article 12 d Text
“Ritania violated the treaty and international laws by not including the dredging program or its impact on the fish.”
*Ritania did not unduly inhibit from exercising its rights under the MGT. Amalea continued fishing uninhibited for three months before the sonar buoy event and for two years following the sonar buoy event.
(d) the Parties shall cooperate with each other in relation to the exercise of their
respective rights giving due regard to each Party’s unique interests in the Malachi
Gap, including, but not limited to, in the case of Amalea the protection of fisheries,
and in the case of Ritania its desire to develop resources lying beneath the water.
*On Responsibilities and Obligations of States sponsoring persons and entities
with respect to activities in the Area
*Ritania’s baseline is drawn from the west side of the Excelsior island. – UNCLOS Article 7
Article 7
Straight baselines
1. In localities where the coastline is deeply indented and cut into, or
if there is a fringe of islands along the coast in its immediate vicinity, the
method of straight baselines joining appropriate points may be employed in
drawing the baseline from which the breadth of the territorial sea is measured.
2. Where because of the presence of a delta and other natural
conditions the coastline is highly unstable, the appropriate points may be
selected along the furthest seaward extent of the low-water line and,
notwithstanding subsequent regression of the low-water line, the straight
baselines shall remain effective until changed by the coastal State in
accordance with this Convention.
3. The drawing of straight baselines must not depart to any appreciable
extent from the general direction of the coast, and the sea areas lying within
the lines must be sufficiently closely linked to the land domain to be subject
to the regime of internal waters.
4. Straight baselines shall not be drawn to and from low-tide elevations,
unless lighthouses or similar installations which are permanently above sea
level have been built on them or except in instances where the drawing of
baselines to and from such elevations has received general international
recognition.
5. Where the method of straight baselines is applicable under
paragraph 1, account may be taken, in determining particular baselines, of
economic interests peculiar to the region concerned, the reality and the
importance of which are clearly evidenced by long usage.
6. The system of straight baselines may not be applied by a State in
such a manner as to cut off the territorial sea of another State from the high
seas or an exclusive economic zone.
Stockholm Conference
Ritania did not violate the Stockholm Convention as it did not pollute per UNCLOS Article 1 – 4, 5
Rio Declaration rebuttal
http://www.uncsd2012.org/content/documents/194Synthesis%20Agenda%2021%20and%20Rio%20principles.pdf
There are two components to the Rio Declaration rebuttal and we should only use as much as needed.
Strongest use – Aspiring law
The Amalean Brief wants to apply principles 2, 6 and 15
2 – According to International law, states are not required to carry out environmental impact assessments prior to resource extraction projects.
State sovereignty comprehensively outweighs potential trans-border environmental spill-over concerns.
6 – Amalea is a newly industrialized island State, not an “LDC”, or Lesser Developed Country and does not qualify for special treatment under Rio Dec. principle 6
https://www.imf.org/external/pubs/ft/wp/2011/wp1131.pdf
15 – Excelsior Island is powered by sustainable energy resources: hydro and wind – precautionary approach
The Millenium Development Goals of 2000 focus on behavior of developing countries
Secondary application – Some customary principles, including principle 7
7 – Had international traction before Rio Declaration, now seen as a mandatory element to every discussion since Rio
Amalea has violated principe 7 and has not demonstrated an effort to conserve the Dorian wrasse by the continued promotion of Dorian wrasse consumption within and without of Amalea.
Amalea has not demonstrated an effort to conserve the Dorian wrasse by the increased fishing for Dorian wrasse for unsustainable consumption
5. The wreck was found in the malachai gap, and is therefore not a part of Amalea’s EEZ by the MGT.
Is there a salvage right component to EEZs that I missed somewhere?
We also need to argue the principle of equity in the handling of the Cargast wreck.
ICJ Case – 1982 Tunisia/Libya case. Par. 71.
Equity as a legal concept is a direct emanation of the idea of Justice.
The Court is bound to apply equitable equity as a part of general
international law. When applying positive international law, a court
may choose among several possible interpretations of the law the one
which appears, in the light of the circumstances of the case, to be
closest to the requirements of justice.
The Court further stated that “[I]t is not a question of applying equity simply as a
meter of abstract justice, but of applying a rule of law” during the 1969 North Sea
case,104 and later, during the 1985 Libya/Malta case, it reiterated that “[t]he Justice of
which equity is an emanation, is not abstract justice but justice according to the rule of
law.”
It thus appears that equity is applied by the Courts as a part of international law and as
a rule of law for the delimitation of the CS. To explain why the law made equity its
own, and perhaps to give it greater force, the Judgments emphasize that law and
equity are close because they start from, and give expression to, the same idea: the
idea of justice.
1969 North Sea case. Par. 85
1985 Libya/Malta case. Par. 45.
Weil P. Op. cit. P. 164.